Attached files
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10-Q - FORM 10-Q - DiamondRock Hospitality Co | c15668e10vq.htm |
EXCEL - IDEA: XBRL DOCUMENT - DiamondRock Hospitality Co | Financial_Report.xls |
EX-32.1 - EXHIBIT 32.1 - DiamondRock Hospitality Co | c15668exv32w1.htm |
EX-31.1 - EXHIBIT 31.1 - DiamondRock Hospitality Co | c15668exv31w1.htm |
EX-31.2 - EXHIBIT 31.2 - DiamondRock Hospitality Co | c15668exv31w2.htm |
Exhibit 10.1
FORM
OF
AMENDMENT
TO
SEVERANCE AGREEMENT
OF
AMENDMENT
TO
SEVERANCE AGREEMENT
This Amendment to Severance Agreement (Amendment) dated as of December
_____, 2010 is made and
entered into by and between DiamondRock Hospitality Company, a Maryland corporation (the
Company), and [Name of Executive] (the Executive).
WHEREAS, the Company and the Executive are parties to a Severance Agreement dated as of [Date]
(the Agreement);
WHEREAS, the parties hereto desire to amend the Agreement in light of additional guidance
issued under Section 409A of the Internal Revenue Code of 1986, as amended;
WHEREAS, the Agreement may be amended or modified only by a written instrument signed by the
Executive and by a duly authorized representative of the Company; and
WHEREAS, capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Company and the
Executive agree as follows:
1. The first sentence of the second paragraph of Section 3(a) of the Agreement is hereby
amended and restated in its entirety as follows:
None of the benefits described in this Section 3 (other than
Accrued Salary) will be payable unless the Executive has signed a
general release which has become irrevocable within 90 days after
the Date of Termination, satisfactory to the REIT in the reasonable
exercise of its discretion, releasing the DiamondRock Group, its
affiliates including the REIT, and their officers, directors and
employees, from any and all claims or potential claims arising from
or related to the Executives employment or termination of
employment.
2. The second sentence of Section 3(a)(ii) is hereby deleted and replaced in its entirety with
the following:
In such event, the Severance Payments shall be reduced in the
following order: (1) cash payments not subject to Section 409A of
the Code; (2) cash payments subject to Section 409A of the Code; (3)
equity-based payments and acceleration; and (4) non-cash forms of
benefits. To the extent any payment is to be made over
time (e.g., in installments, etc.), then the payments shall be
reduced in reverse chronological order.
3. The last sentence of Section 3(a)(v) is hereby deleted and replaced in its entirety with
the following:
The Gross-Up Payment, if any, shall be paid to the relevant tax
authority as withholding taxes on behalf of the Executive at such
time or times as the Excise Tax is due.
4. Each of Sections 3(b)(i), 3(b)(ii), 3(c)(i) and 3(d)(i) is hereby amended by adding the
following immediately prior to the semi-colon at the end thereof:
to be paid within 90 days after the Date of Termination, provided,
however, that if such 90 day period spans two calendar years, the
amount shall be paid in the second calendar year
5. Section 8(a) of the Agreement is hereby deleted and replaced in its entirety with the
following:
Anything in this Agreement to the contrary notwithstanding, if at
the time of the Executives separation from service within the
meaning of Section 409A of the Code, the REIT determines that the
Executive is a specified employee within the meaning of Section
409A(a)(2)(B)(i) of the Code, then to the extent any payment or
benefit that the Executive becomes entitled to under this Agreement
on account of the Executives separation from service would be
considered deferred compensation subject to the 20 percent
additional tax imposed pursuant to Section 409A(a) of the Code as a
result of the application of Section 409A(a)(2)(B)(i) of the Code,
such payment shall not be payable and such benefit shall not be
provided until the date that is the earlier of (A) six months and
one day after the Executives separation from service, or (B) the
Executives death. The parties intend that this Agreement will be
administered in accordance with Section 409A of the Code. To the
extent that any provision of this Agreement is ambiguous as to its
compliance with Section 409A of the
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Code, the provision shall be
read in such a manner so that all payments hereunder comply with
Section 409A of the Code. The parties agree that this Agreement may
be amended, as reasonably requested by either party, and as may be
necessary to fully comply with Section 409A of the Code and all
related rules and regulations in order to preserve the payments and
benefits provided hereunder without additional cost to either party.
To the extent that any payment or benefit described in this
Agreement constitutes non-qualified deferred compensation under
Section 409A of the Code, and to the extent that such payment or
benefit is payable upon the
Executives termination of employment, then such payments or
benefits shall be payable only upon the Executives separation from
service. The determination of whether and when a separation from
service has occurred shall be made in accordance with the
presumptions set forth in Treasury Regulation Section 1.409A-1(h).
The REIT makes no representation or warranty and shall have no
liability to Executive or any other person if any provisions of this
Agreement are determined to constitute deferred compensation subject
to Section 409A of the Code but do not satisfy an exemption from, or
the conditions of, such Section.
6. All other provisions of the Agreement shall remain in full force and effect according to
their respective terms, and nothing contained herein shall be deemed a waiver of any right or
abrogation of any obligation otherwise existing under the Agreement except to the extent
specifically provided for herein.
7. This Amendment may be executed in any number of counterparts, each of which when so
executed and delivered shall be taken to be an original; but such counterparts shall together
constitute one and the same document.
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IN WITNESS WHEREOF, the Company and the Executive have executed this Amendment to Severance
Agreement as of the day and year first above written.
DIAMONDROCK HOSPITALITY COMPANY | ||||
|
||||
Its: | ||||
EXECUTIVE | ||||
Name: |
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