Exhibit 10.116
AMENDMENT NO. 3 TO
EMPLOYMENT
AGREEMENT
This AMENDMENT NO. 3 TO EMPLOYMENT
AGREEMENT (“Amendment”) is entered into as of
December 17, 2008, by and among James E. Mead (the
“Executive”) and Strategic Hotels & Resorts,
Inc. a Maryland corporation (“SHRI”) and Strategic
Hotel Funding, L.L.C., a Delaware limited liability company
(together with SHRI, the “Company”).
WITNESSETH THAT:
WHEREAS, the Executive and the
Company are parties to that certain Employment Agreement, dated as
of November 29, 2004 and Amendment No. 1 thereto dated as
of February 13, 2008 and Amendment No. 2 dated as of
November 14, 2008 (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 5(d)(i) is deleted in its entirety and the following
is substituted therefore:
the Company materially reduces
Executive’s Base Salary or Target Bonus opportunity or the
Company otherwise materially breaches this Agreement;
3. Date of Termination . A
new subsection 5(f) Date of Termination of Employment is
added to the Agreement as follows:
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 termination of employment date 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. Release . The following
sentences are added at the end of Section 6(b)(iv)
Release :
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
1
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 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 6(b)(iv) 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.
5. Mitigation and Offset .
The last sentence of Section 8(c) Mitigation and
Set-Off is hereby stricken in its entirety and replaced with
the following:
However, to the extent permitted by
Section 409A, the Company shall be entitled to set off against
amounts payable to Executive under this Agreement any amounts owed
to the Company by Executive.
6. Section 409A
Compliance . A new Section 9 Section 409A
Compliance is added to the Agreement as follows:
Section 409A
Compliance . All payments
pursuant to this Agreement shall be subject to the provisions of
this Sectio
