Exhibit 10.117
AMENDMENT NO. 1 TO
EMPLOYMENT
AGREEMENT
This AMENDMENT NO. 1 TO EMPLOYMENT
AGREEMENT (this “Amendment”) is entered into as of
December 17, 2008, by and among Laurence S. Geller (the
“Executive”) and Strategic Hotels & Resorts,
Inc. (the “Company”).
WITNESSETH THAT:
WHEREAS, the Executive and the
Company are parties to that certain Employment Agreement, dated as
of September 7, 2006 (the “Employment Agreement”);
and
WHEREAS, the parties desire to make
an amendment to the Employment Agreement;
NOW, THEREFORE, the Executive and
the Company hereto agree that the Employment Agreement shall be
amended as follows:
1. Certain Definitions .
Capitalized terms used in this Amendment without definition shall
have the meanings set forth in the Employment Agreement.
2. Constructive Termination .
Section 3(d)(i) is deleted in its entirety and the following
is substituted therefor:
the Company materially reduces
Executive’s Salary or bonus opportunity or the Company
materially breaches this Agreement;
3. Date of Termination . The
following sentence is added at the end of
Section 3(h):
Notwithstanding anything contained
in this Agreement to the contrary, the date on which a
“separation from service” pursuant to section 409A of
the Internal Revenue Code of 1986, as amended (“Section
409A”) (“Separation from Service”) occurs shall
be the “Date of Termination” or termination of
employment for purposes of determining the timing of payments and
benefits under this Agreement to the extent necessary to have such
payments and benefits under this Agreement be exempt from the
requirements of Section 409A or comply with the requirements
of Section 409A.
4. During the Agreement Term,
Termination due to Death or Disability; Prior to or more than 24
months following a Change in Control, Constructive Termination or
Termination by the Company without Cause . The last sentence of
Section 4(b)(ii) is deleted in its entirety and the following
substituted therefor:
Such amount shall be payable in a
lump sum;
5. During the Agreement Term,
Termination due to Death or Disability; Prior to or more than 24
months following a Change in Control, Constructive Termination or
Termination by the Company without Cause .
Section 4(b)(iii) is deleted in its entirety and the following
substituted therefor:
A pro-rata Target Bonus for the
elapsed portion of the calendar year through the Date of
Termination, payable in a lump sum.
6. Rights Upon Termination .
The following sentences are added at the end of
Section 4(f):
To the extent that any such payments
or benefits under this Agreement are intended to be exempt from
Section 409A as a short-term deferral pursuant to Treasury
Regulations §1.409A-1(b)(4) or any successor thereto, such
release required for such payment or benefit must be provided no
later than March 7th of the calendar year following the
calendar year of the Executive’s Separation from Service and
the Company shall make such payments on the day following the date
the release becomes effective and irrevocable. Subject to
Section 4(h), to the extent that Executive is required to
execute and deliver a release to receive a payment or benefit that
constitutes a “deferral of compensation” subject to
Section 409A (after taking into account to the maximum extent
possible any applicable exemptions) (“409A Payment”),
such 409A Payment will be provided upon the 30th day following
Executive’s Separation from Service provided the release in
the form mutually agreed upon between Executive and the Company or
in substantially the form set forth as Exhibit A has been executed,
delivered, effective and irrevocable prior to such time. If a
release is required for a 409A Payment and such release is not
executed, delivered, effective and irrevocable by the 30th day
following Executive’s Separation from Service, such 409A
Payment shall not be provided to the Executive to the extent that
providing such 409A Payment would cause such 409A Payment to fail
to comply with Section 409A. Should this Section 4(f)
result in the delay of benefits under this Agreement, any such
benefit shall be made available to the Executive by the Company
during such delay period at Executive’s expense. On the first
day any such benefits may be made without incurring additional tax
pursuant to Section 409A, the Company shall provide such
benefits as provided for in this Agreement as well reimbursement of
the amount Executive paid for benefits pursuant to the preceding
sentence.
7. Timing of Severance
Payments . The text of Section 4(h) is deleted in its
entirety and the following substituted therefor:
To the extent that any payment or
benefit pursuant to this Agreement constitutes a 409A Payment
treated as payable upon Separation from Service, then, if on the
date of the Executive’s Separation from Service, the
Executive is a Specified Employee, then to t
