EXHIBIT (d)(4)
WYNDHAM INTERNATIONAL, INC.
RESTRICTED UNIT AWARD AGREEMENT
Dated as of _______, 200_
Wyndham International, Inc., a corporation organized under the laws of
Delaware (the "Company"), hereby awards to _______________ (the "Participant"),
as of the date hereof (the "Award Date"), an Award (the "Award") of ________
Restricted Units ("Restricted Units"), each such Restricted Unit covering the
right to receive one share of Class A Common Stock of the Company, subject to
the terms and conditions set forth below. Such grant is pursuant to the Second
Amendment and Restatement of the Wyndham International, Inc. 1997 Incentive Plan
(the "Plan").
1. Award Subject to Acceptance of Agreement. The Award shall not be valid and
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binding unless the Participant accepts this Agreement by executing it in
the space provided below and returning such original execution copy to the
Company.
2. Vesting of Award. Except as set forth below in this Agreement, and subject
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to the discretion of the Committee or the Board of Directors to accelerate
the vesting schedule ("Vesting Schedule") hereunder, this Award shall be
vested and nonforfeitable with respect to the indicated number of
Restricted Units on the dates indicated in the following Vesting Schedule
provided the Participant has remained employed by the Company or an
Affiliate to such date:
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Number of Restricted Units
Subject to Vesting Date Restrictions Lapse
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______ 3rd anniversary of Award Date
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______ 4th anniversary of Award Date
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______ 5th anniversary of Award Date
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In the event of a Change in Control of the Company after the date hereof
during the Participant's employment with the Company, the vesting date for any
Restricted Units which have not yet vested shall be accelerated to the first
anniversary of the Change in Control provided the Participant has remained
employed by the Company or an Affiliate to such first anniversary.
If in connection with any such Change in Control, the outstanding shares of
Class A Common Stock are changed into or exchanged for stock or other securities
of any other corporation or entity or cash or any other property, whether by
merger, consolidation, amalgamation, liquidation or otherwise (each a
"Transaction"), then proper provision shall be made so that upon consummation of
such Transaction:
(a) each Restricted Unit covered by this Award shall thereafter
represent, in lieu of the right to receive a share of Class A
Common Stock, the right to receive the stock, other securities,
cash and/or other property to which a Participant would have been
entitled upon consummation of such Transaction if such Restricted
Unit had been vested and a certificate for such share of Class A
Common Stock had been delivered to the Participant pursuant to
Section 5(b) hereof immediately prior to such consummation (or,
if applicable, any record date with respect to such Transaction);
(b) the Company or other corporation or entity surviving such
Transaction shall within 15 days of consummation of such
Transaction place such stock, other securities, cash and/or other
property to which the Participant would have been so entitled in
escrow with an independent third party escrow agent (the
"Escrow") and shall cause the Escrow to be maintained until the
earlier of the date of the vesting of the Restricted Unit or the
date such Restricted Unit is otherwise terminated or forfeited;
(c) in the event of a decline in the value of such stock or other
securities between (i) the date of consummation of the
Transaction or if all holders of Class A Common Stock who receive
stock or other securities in the Transaction are restricted from
reselling such stock or other securities for a period of time
after the consummation of the Transaction, then the earliest date
on which such restriction lapses (the later of the consummation
date and, if applicable, the earliest date of termination of such
restriction being the "Commencement Date") and (ii) the date of
vesting of such Restricted Unit (whether on the first anniversary
of the Change in Control or earlier as provided in the Vesting
Schedule or in Section 3 below), the Participant shall be
entitled to receive, in addition to such stock or other
securities, cash in an amount equal to the difference between the
market value of such stock or other securities on the
Commencement Date and the market value of such stock or other
securities on the date of vesting;
(d) the Company or other corporation or entity surviving such
Transaction shall within 15 days of the Commencement Date place
in the Escrow an appropriate hedging instrument or instruments
covering any such decline in the market value of such stock or
other securities between the Commencement Date and the vesting
date or otherwise place in the Escrow cash in an amount
sufficient to cover any such decline; and
(e) the issuer of any such stock or other securities shall promptly
file a registration statement under the Securities Act of 1933,
as amended (the "Act"), with respect to the stock or other
securities receivable upon vesting of a Restricted Unit and shall
use its best efforts to cause such registration statement to
become and remain effective such that upon vesting of the
Restricted Units, such stock or other securities received by
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the Participant shall not be "restricted securities" within the
meaning of Rule 144(a) under such Act.
The Company shall not be a party to any Transaction unless prior to
consummation thereof, each corporation (other than the Company) or other
entity which may be required to deliver (or, as applicable, register) any
stock, securities, cash or other property in connection with the vesting of
Restricted Units shall assume, by written instrument, a copy of which shall
be delivered to the Participant, the obligation to so deliver to the
Participant (or to so register) such shares of stock, securities, cash or
property in connection with such vesting and to comply with the other
provisions of this Award.
3. Termination of Employment. If the Participant's employment by the Company
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or an Affiliate is terminated prior to the dates the restrictions lapse as
set forth above, the Participant shall forfeit all Restricted Units which
have not yet vested, except as provided below. Any transfer of employment
from the Company to an Affiliate shall not be deemed to be a termination of
employment for purposes of this Agreement.
(a) Termination Due to Death. If the Participant's employment
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terminates by reason of death prior to the dates the restrictions
lapse as set forth above, then the additional number of
Restricted Units that would vest on the next vesting date set
forth in the Vesting Schedule in Section 2 on or following the
date of death shall vest on the date of death. Any remaining
unvested portion of the Award that is not so vested on the date
of death shall terminate immediately and Participant's estate
shall have no further rights or interest therein.
(b) Termination Due to Disability. If the Participant's employment
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terminates by reason of the Participant's Disability (as defined
in Section 22(e)(3) of the Internal Revenue Code of 1986, as
amended) prior to the dates the restrictions lapse as set forth
above, then the additional number of Restricted Units that would
vest on the next vesting date set forth in the Vesting Schedule
in Section 2 on or following the date of termination shall vest
on the date of termination. Any remaining unvested portion of the
Award that is not so vested on the date of termination shall
terminate immediately and Participant shall have no further
rights or interest therein.
(c) Termination without Cause or for Good Reason in Connection with a
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Change in Control. The following provisions shall apply if during
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the periods specified below, Participant terminates his
employment for Good Reason (as defined below) or the Company or
an Affiliate terminates Participant's employment for any reason
other than (x) Cause (as defined below) or (y) Participant's
Disability:
(i) if such termination occurs (x) after the Company has
executed a letter of intent or a definitive agreement
relating to a transaction that would constitute a Change in
Control and (y) on or prior to the date of a Change in
Control occurring within 12 months after the date of
execution of such letter of intent or definitive agreement,
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then the Participant shall continue to vest in accordance
with the Vesting Schedule as set forth in Section 2 until
such Change in Control, at which time Participant shall
become fully vested in all the Restricted Units, and
(ii) if such termination occurs after a Change in Control but on
or prior to the first anniversary of the Change in Control,
then the Participant shall become fully vested in all the
Restricted Units upon such termination.
(d) Other Termination. Except as provided in Sections 3(a), (b) and
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(c) above, if the Participant's employment is terminated at any
time and for any reason the unvested portion of the Award shall
terminate immediately and the Participant shall have no further
rights or interest therein.
For purposes of this Section 3, "Cause" means (a) conduct by the
Participant constituting a material act of willful misconduct in connection
with the performance of his duties, including, without limitation,
misappropriation of funds or property of the Company or any of its
Affiliates other than the occasional, customary and de minimis use of
Company property for personal purposes; (b) criminal or civil conviction of
the Participant, a plea of nolo contendere by the Participant or conduct by
the Participant that would reasonably be expected to result in material
injury to the reputation of the Company if he were retained in his position
with the Company, including, without limitation, conviction of a felony
involving moral turpitude; or (c) continued, willful and deliberate non-
performance by the Participant of his duties for the Company (other than by
reason of the Participant's physical or mental illness, incapacity or
Disability) and such non-performance has continued for more than 30 days
following written notice of such non-performance from the Company.
For purposes of this Section 3, "Good Reason" means (a) the
involuntary relocation of the Participant's principal place of work to a
location more than 50 miles from such location; (b) the substantial
diminution or other substantive adverse change, not consented to by the
Participant, in the nature or scope of the Participant's responsibilities,
functions or duties, or (c) after the occurrence of a Change in Control, a
reduction, not consented to by the Participant, in the Participant's base
pay or salary.
4. Incorporation of Plan. Notwithstanding anything herein to the contrary,
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this Award shall be subject to and governed by all the terms and conditions
of the Plan. Capitalized terms in this Agreement shall have the meaning
specified in the Plan, unless a different meaning is specified herein. In
the event of any conflict between any provisions in the Plan and the
provisions in this Agreement, the provisions of the Plan shall govern.
5. Additional Terms and Conditions of Award.
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(a) Non-Transferability of Award. The Restricted Units shall not be
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assignable or transferable by the Participant other than by will
and the laws of descent and distribution until the restrictions
on the Restricted Units lapse. The Restricted Units shall not
otherwise be transferred, assigned, pledged or hypothecated for
any purpose whatsoever and are not
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subject, in whole or in part, to execution, attachment, or
similar process. Any attempted assignment, transfer, pledge or
hypothecation or other disposition of the Restricted Units, other
than in accordance with the terms set forth herein, shall be void
and of no effect.
(b) Delivery of Certificates. Upon the vesting of any part of the
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Award by virtue of the lapse of the restriction period pursuant
to Section 2 or 3 above, the Company shall deliver or cause to be
delivered to the Participant a stock certificate covering the
requisite number of shares of Class A Common Stock (or following
a Transaction, certificates covering the requisite amount of
stock or other securities into which the Class A Common Stock
shall have been changed or exchanged) so vested, registered in
the name of the Participant on the books of the Company (or after
a Transaction, on the books of the issuer of such stock or other
securities). Upon receipt of such certificate(s), Participant is
free to hold or dispose of such certificate(s) at will, subject
to any applicable securities laws.
(c) Award Confers No Rights as Stockholder. The Participant shall not
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be entitled to any privileges of ownership with respect to shares
of Class A Common Stock (or stock or other securities into which
the Class A Common Stock shall have been changed or exchanged in
a Transaction) subject to the Award unless and until certificates
for such shares (or such stock or other securities) are delivered
to the Participant upon the vesting of the Award and the
Participant becomes a holder of record with respect to such
delivered shares (or such stock or other securities); and the
Participant shall not be considered a stockholder of the Company
(or of the issuer of such stock or other securities) with respect
to any such shares (or such stock or other securities) not so
delivered. Any rights the Participant may at any time have
against the Company (or such issuer of such other stock or
securities) with respect to the Award shall be solely those of an
unsecured creditor of the Company (or such issuer).
(d) Decisions of Committee. The Committee shall have the right to
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resolve all questions which may arise in connection with the
Award, the lapse of the restrictions, the Plan or this Agreement.
Any interpretation, determination or other action made or taken
by the Committee regarding this Agreement shall be final, binding
and conclusive.
(e) Reservation of Shares. The Company (and following a Transaction,
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any issuer of stock or other securities into which the Class A
Common Stock shall have been changed or exchanged) shall at all
times prior to the expiration or termination of the Award
(excluding periods during which the Escrow is in effect) reserve
or cause to be reserved and keep or cause to be kept available,
either in its treasury or out of its authorized but unissued
shares of Class A Common Stock (or after a Transaction, such
stock or other securities), the full number of shares of Class A
Common
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Stock of the Company (or after a Transaction, such stock or other
securities) subject to the Award from time to time.
(f) Change in Capital Structure. The terms of this Award shall be
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adjusted as the Committee determines is equitably required in the
event the Company (or following a Transaction, any issuer of
stock or other securities into which the Class A Common Stock
shall have been changed or exchanged) effects one or more stock
dividends, stock split-ups, subdivisions or consolidations of
shares or other similar changes in capitalization.
(g) Fractional Shares. Fractional shares shall not be issuable
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hereunder, and when any provision hereof may entitle Participant
to a fractional share such fraction shall be paid out in cash.
(h) Meaning. Upon consummation of a Transaction, references herein to
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the Company shall mean the Company or other corporation or entity
surviving such transaction.
6. Tax Withholding. The Participant shall, not later than the date as of which
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the vesting of this Award becomes a taxable event for Federal income tax
purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any Federal, state, and local taxes required by
law to be withheld on account of such taxable event. Subject to the
approval of the Committee, the Participant may elect to have such required
minimum tax withholding obligation satisfied, in whole or in part, by (i)
authorizing the Company to withhold from the shares of Class A Common Stock
to be issued, or (ii) transferring to the Company a number of previously
owned whole shares of Class A Common Stock (which the Participant has held
for at least six months prior to the delivery of such shares or which the
Participant purchased on the open market and for which the Participant has
good title, free and clear of all liens and encumbrances) having an
aggregate Fair Market Value, determined as of the date of vesting, that
would satisfy the withholding amount due.
7. Miscellaneous Provisions.
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(a) Successors. This Agreement shall be binding upon and inure to the
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benefit of any successor or successors of the Company and any person
or persons who shall, upon the death of the Participant, acquire any
rights hereunder in accordance with this Agreement or the Plan.
(b) Notices. All notices, requests or other communications provided for in
this Agreement shall be made, if to the Company, to the Secretary of
the Company at the Company's principal executive office, and if to the
Participant, to his or her address on the books of the Company (or to
such other address as the Company or the Participant may give to the
other for purposes of notice hereunder).
All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to
the party entitled thereto, (b) by facsimile with confirmation of
receipt, (c) by
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mailing in the United States mail to the last known address of the
party entitled thereto or (d) by express courier service. The notice,
request or other communication shall be deemed to be received upon
personal delivery, upon confirmation of receipt of facsimile
transmission or upon receipt by the party entitled thereto if by
United States mail or express courier service; provided, however, that
if a notice, request or other communication in not received during
regular business hours, it shall be deemed to be received on the next
succeeding business day of the Company.
(c) Governing Law. This Agreement and all determinations made and actions
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taken pursuant hereto and thereto, to the extent not governed by the
laws of the United States, shall be governed by the laws of the State
of Delaware and construed in accordance therewith without giving
effect to principles of conflicts of laws.
(d) Counterparts. This Agreement may be executed in two counterparts, each
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of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
(e) Force and Effect. The various provisions of this Agreement are
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severable in their entirety. Any determination of invalidity or
unenforceability of any one provision shall have no effect on the
continuing force and effect of the remaining provisions.
(f) Further Assurances. The Company and the Participant shall execute and
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deliver such further instruments and take such additional action as
each party may reasonably request to effect, consummate, confirm or
evidence the grant of the Award to the Participant, and they shall
each execute such documents as may be reasonably necessary to assist
each other in preserving or perfecting their respective rights in the
Award.
(g) No Right to Continued Employment. This Award does not confer upon
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Participant any right to continue in the employ of the Company or an
Affiliate, nor shall it interfere in any way with the right of the
Company or an Affiliate to terminate such employment at any time.
WYNDHAM INTERNATIONAL, INC.
By:___________________________________________
Title:________________________________________
Accepted as of the __ day of _________, 200_.
_____________________________________
"Participant"
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