CNL Hotels & Resorts, Inc. Deferred Share Award Agreement (All Awards for Executives with Employment Agreements)
CNL
Hotels & Resorts, Inc.
2004
Omnibus Long-Term Incentive Plan
(All
Awards for Executives with Employment Agreements)
CNL
Hotels & Resorts, Inc. (the “Company”) wishes to
memorialize the grant to the person (the “Participant”)
named in the Deferred Share Award Grant Notice (the “Grant
Notice”) of a Deferred Share Award (the
“Award”) pursuant to the provisions of the
Company’s
2004 Omnibus Long-Term Incentive Plan (the “Plan”), the
Grant Notice and the applicable provisions of the Participant’s employment
agreement with the Company, dated ____________, 2006, as amended from time
to
time (the “Employment Agreement”). The Award will entitle the Participant to
shares of Common Stock from the Company, if the Participant meets the vesting
requirements described herein, in the Grant Notice and in the applicable
provisions of the Employment Agreement. Therefore, pursuant to the terms
of the
attached Grant Notice and this Deferred Share Award Agreement (the
“Agreement”), the Company grants the Participant the
number of Deferred Shares listed in the Grant Notice.
The
details of the Award are as follows:
1. Grant
Pursuant to Plan.
This
Award is granted pursuant to the Plan, which is incorporated herein for all
purposes. The Participant hereby acknowledges receipt of a copy of the Plan.
The
Company and Participant agree to be bound by all of the terms and conditions
of
this Agreement, the Grant Notice, the Plan and the applicable provisions
of the
Employment Agreement. Any capitalized term in this Agreement shall have the
meaning assigned to it in this Agreement, or, if such term is not defined
in
this Agreement, such term shall have the meaning assigned to it under the
Plan.
2. Deferred
Share Award.
The
Company hereby memorializes the grant to the Participant of the Deferred
Shares
listed in the Grant Notice as of the grant date specified in the Grant Notice
(the “Grant
Date”).
Such
number of Deferred Shares may be adjusted from time to time pursuant to
Section 9 of the Plan, except as otherwise provided for pursuant to this
Agreement.
3. Vesting
and Forfeiture of Deferred Shares.
(a) Vesting.
The
Participant shall become vested in the Deferred Shares in accordance with
the
vesting schedule in the Grant Notice.
(b) Forfeiture.
The
Participant shall forfeit any unvested Deferred Shares, if any, in the event
that the Participant’s Continuous Service is terminated for any reason, except
(i) as otherwise provided in this Agreement, the Plan or the applicable
provisions of the Employment Agreement or (ii) as otherwise determined by
the
Committee in its sole discretion, which determination need not be uniform
as to
all persons who have received awards under the Plan and which determination
shall not reduce the rights of the Participant under the Employment
Agreement.
(c) Vesting
Acceleration.
This
Award shall be subject to vesting acceleration upon such terms and at such
times
as provided in the Employment Agreement.
4. Settlement
of Deferred Share Award.
(a) Settlement
of Deferred Shares for Common Stock.
The
Company shall deliver to the Participant one share of Common Stock for each
vested Deferred Share subject of this Award on the appropriate Delivery Date
(as
defined in Section 4(b)). Except as otherwise provided herein and in the
Employment Agreement relating to the payment of withholding taxes, the Company
shall not have any obligation to settle this Award for cash.
(b) Delivery
of Common Stock.
Shares
of Common Stock shall be delivered on the delivery date(s) (each a “Delivery
Date”) specified in the Grant Notice, except as otherwise provided for in this
Section 4(b) or in the Employment Agreement. Once a share of Common Stock
is
delivered with respect to a vested Deferred Share, such vested Deferred Share
shall terminate and the Company shall have no further obligation to deliver
a
share of Common Stock, or any other property (except as noted below), for
such
vested Deferred Share.
If
the
vesting of the Award accelerates pursuant to Section 3(c), the shares of
Common
Stock shall be delivered within sixty (60) days of the event that caused
the
vesting acceleration. Immediately prior to and contingent on the consummation
of
a change in control as defined in the Participant’s Employment Agreement, the
Company shall deliver shares of Common Stock to the extent of the vested
Deferred Shares as of the date of the consummation of such change in control.
However, in either of the two cases previously described in this paragraph,
to
the extent necessary to comply with Section 409A(a)(2)(B) of the Code and
any
Treasury Regulations promulgated thereunder, the delivery of shares of Common
Stock shall be delayed for six (6) months from the date of a “separation from
service” (as defined under Section 409A of the Code and any Treasury Regulations
promulgated thereunder) of the Participant.
5. No
Rights as Shareholder until Delivery.
The
Participant shall not have any rights, benefits or entitlements as a shareholder
of the Company with respect to any Common Stock subject to this Agreement
unless
and until such Common Stock has been delivered to the Participant. On or
after
delivery of the Common Stock, the Participant shall have, with respect to
the
Common Stock delivered, all of the rights of a shareholder of the Company,
including the right to vote the Common Stock and the right to receive all
dividends and distributions, if any, as may be declared on the Common Stock
from
time to time. The foregoing shall not be a limitation of the Participant’s right
to receive a cash payment equivalent of dividends and distributions declared
on
Common Stock where the delivery has been delayed to avoid a 409A penalty
as
provided in the Employment Agreement.
6. Tax
Provisions.
(a) Tax
Consequences.
The
Participant has reviewed with the Participant’s own tax advisors the federal,
state, local and foreign tax consequences of this investment and the
transactions contemplated by this Agreement. The Participant is relying solely
on such advisors and not on any statements or representations of the Company
or
any of its agents. The Participant understands that the Participant (and
not the
Company) shall be responsible for any of the Participant’s tax liability that
may arise as a result of the transactions contemplated by this
Agreement.
(b) Withholding
Obligations.
The
Participant hereby authorizes withholding in such form as the Participant
elects
and otherwise agrees to make adequate provision for, any sums required to
satisfy the minimum federal, state, local and foreign tax withholding
obligations of the Company or an Affiliate, if any, which arise in connection
with the Award. At the time the Award is granted, or at any time thereafter
as
requested by the Company or the Participant, the Participant shall elect
the
method for the satisfaction of the tax withholding related to this Award
from
the following alternatives: (i) withholding from payroll or other amounts
paid
to the Participant by the Company; (ii) payment by a check from the Participant;
(iii) withholding of shares of Common Stock by the Company from the vested
shares otherwise deliverable pursuant to this Award; (iv) the use of a
broker-assisted sale (if the Company’s Shares are publicly traded on a national
stock exchange or electronic quotation system and the Company has established
the appropriate procedures); (v) any other legal method authorized by the
Committee or (vi) any combination of the foregoing. In addition, the Participant
authorizes the Company to deduct from payroll (either from salary or any
bonus)
any contributions the Participant authorizes be made to the Participant’s 401(k)
plan account based on the delivery of Common Stock pursuant to this
Award.
The
Company, upon the election of the Participant as to the method of tax
withholding and in compliance with any applicable legal conditions or
restrictions, may withhold from fully vested shares of Common Stock otherwise
deliverable to the Participant a number of whole shares of Common Stock having
a
Fair Market Value, as determined by the Company, in good faith, as of the
date
the Participant recognizes income with respect to those shares of Common
Stock,
not in excess of the amount of the minimum tax required to be withheld by
law
(or such other amount (lower or higher) that would avoid adverse financial
accounting treatment). Any adverse consequences to the Participant arising
in
connection with such Common Stock withholding procedure shall be the
Participant’s sole responsibility.
In
addition, after the Company’s Shares are publicly traded on a national stock
exchange or electronic quotation system, the Company, in its discretion,
may
establish a procedure, whereby the Participant may make an irrevocable election
to direct a broker (determined by the Company) to sell sufficient shares
of
Common Stock from the Award to cover the tax withholding obligations of the
Company or any Affiliate and deliver such proceeds to the Company. The
Participant shall be responsible for complying with all Company policies
regarding stock trading as well as the applicable securities laws in connection
with a sale of shares of Common Stock received pursuant to this
Award.
Unless
the tax withholding obligations of the Company or any Affiliate are satisfied,
the Company shall have no obligation to issue such shares of Common
Stock.
(c) Section
409A Amendments.
The
Company agrees to cooperate with the Participant to amend this Agreement to
the extent either the Company or the Participant deems necessary to avoid
imposition under Code Section 409A and any temporary or final Treasury
Regulations and Internal Revenue Service guidance thereunder of any additional
tax or income recognition prior to actual delivery of the shares of Common
Stock
to the Participant, but only to the extent such amendment would not have
an
adverse effect on the Company or the Participant, in each case as determined
by
the Company, in its sole discretion.
7. Consideration.
With
respect to the value of the shares of Common Stock to be delivered pursuant
to
the Award, such shares of Common Stock are granted in consideration for the
services the Participant shall provide to the Company during the vesting
period.
8. Transferability.
The
Deferred Shares granted under this Agreement are not transferable otherwise
than
by will or under the applicable laws of descent and distribution. In addition,
the Deferred Shares shall not be assigned, negotiated, pledged or hypothecated
in any way (whether by operation of law or otherwise), and the Deferred Shares
shall not be subject to execution, attachment or similar process.
9. General
Provisions.
(a) Employment
At Will.
Subject
to the terms of the Employment Agreement, nothing in this Agreement or in
the
Plan shall confer upon the Participant any right to continue in the service
of
the Company or its Related Entities for any period of specific duration or
interfere with or otherwise restrict in any way the rights of the Company
(or
any Affiliate employing or retaining the Participant) or of the Participant,
which rights are hereby expressly reserved by each, to terminate the
Participant’s service at any time for any reason, with or without
cause.
(b) Notices.
Any
notice required to be given under this Agreement shall be in writing and
shall
be deemed effective upon personal delivery, upon receipt by an overnight
courier
with signature for delivery required or upon deposit in the U.S. mail,
registered or certified, postage prepaid and properly addressed to the party
entitled to such notice at the address indicated below such party’s signature
line on this Agreement or at such other address as such party may designate
by
ten (10) days’ advance written notice under this paragraph to all other
parties to this Agreement.
(c) No
Limit on Other Compensation Arrangements.
Nothing
contained in this Agreement shall preclude the Company from adopting or
continuing in effect other or additional compensation arrangements, and those
arrangements may be either generally applicable or applicable only in specific
cases.
(d) Severability.
If any
provision of this Agreement is or becomes or is deemed to be invalid, illegal,
or unenforceable in any jurisdiction or would disqualify this Agreement or
the
Award under any applicable law, that provision shall be construed or deemed
amended to conform to applicable law (or if that provision cannot be so
construed or deemed amended without materially altering the purpose or intent
of
this Agreement and the Award, that provision shall be stricken as to that
jurisdiction and the remainder of this Agreement and the Award shall remain
in
full force and effect).
(e) No
Trust or Fund Created.
Neither
this Agreement nor the grant of the Award shall create or be construed to
create
a trust or separate fund of any kind or a fiduciary relationship between
the
Company and the Participant or any other person. The Deferred Shares subject
to
this Agreement represent only the Company’s unfunded and unsecured promise to
issue Common Stock to the Participant in the future. To the extent that the
Participant or any other person acquires a right to receive payments from
the
Company pursuant to this Agreement, that right shall be no greater than the
right of any unsecured general creditor of the Company.
(f) Cancellation
of Award.
If any
Deferred Shares subject to this Agreement are forfeited, then from and after
such time, the Participant (and any other person from whom such Deferred
Shares
are forfeited) shall no longer have any rights to such Deferred Shares or
the
corresponding shares of Common Stock. Such Deferred Shares shall be deemed
forfeited in accordance with the applicable provisions hereof.
(g) Participant
Undertaking.
The
Participant hereby agrees to take whatever additional action and execute
whatever additional documents the Company may deem necessary or advisable
in
order to carry out or effect one or more of the obligations or restrictions
imposed on either the Participant or the shares of Common Stock deliverable
pursuant to the provisions of this Agreement.
(h) Amendment,
Modification, and Entire Agreement.
No
provision of this Agreement may be modified, waived or discharged unless
that
waiver, modification or discharge is agreed to in writing and signed by the
Participant and an officer of the Company, other than the Participant,
designated by the Committee. The Participant and the Company acknowledge
that as
of the Grant Date, this Agreement, the Plan and any applicable provisions
of the
Participant’s Employment Agreement set forth the entire understanding between
the Participant and the Company regarding the acquisition of Common Stock
pursuant to this Award and supersede all prior oral and written agreements
on
that subject with the exception of awards from the Company previously granted
and delivered to the Participant. This Agreement is made pursuant to the
provisions of the Plan and shall in all respects be construed in conformity
with
the terms of the Plan. In the event of a conflict between the Plan and this
Agreement, the terms of the Plan shall govern. In the event of a conflict
among
any of the Employment Agreement, any Grant Notice and this Agreement or the
Plan, the terms of the Employment Agreement shall govern. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement.
(i) Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Florida without regard to the conflict-of-laws rules thereof
or of
any other jurisdiction.
(j) Interpretation.
The
Participant accepts this Award subject to all the terms and provisions of
this
Agreement and the terms and conditions of the Plan and the applicable provisions
of the Employment Agreement. The undersigned Participant hereby accepts as
binding, conclusive and final all decisions or interpretations of the Committee
upon any questions arising under this Agreement, except where this Agreement
is
subject to the provisions of the Employment Agreement, in which case any
such
questions shall be governed by the dispute resolution provisions of the
Employment Agreement.
(k) Successors
and Assigns.
The
provisions of this Agreement shall inure to the benefit of, and be binding
upon,
the Company and its successors and assigns and upon the Participant, the
Participant’s assigns and the legal representatives, heirs and legatees of the
Participant’s estate, whether or not any such person shall have become a party
to this Agreement and have agreed in writing to join herein and be bound
by the
terms hereof. The Company may assign its rights and obligations under this
Agreement, including, but not limited to, the forfeiture provision of
Section 3(b) to any person or entity selected by the Board.
(l) Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed
to be
an original, but all of which together shall constitute one and the same
instrument.
(m) Headings.
Headings are given to the Sections and Subsections of this Agreement solely
as a
convenience to facilitate reference. The headings shall not be deemed in
any way
material or relevant to the construction or interpretation of this Agreement
or
any provision thereof.
10. Representations.
The
Participant acknowledges and agrees that the Participant has reviewed the
Agreement in its entirety, has had an opportunity to obtain the advice of
counsel prior to executing and accepting the Award and fully understands
all
provisions of the Award.
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IN
WITNESS WHEREOF,
the
parties have executed this Agreement on the day and year first indicated
above.
CNL
HOTELS & RESORTS, INC.
By:
Title:
PARTICIPANT
Address: