Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of
February 25, 2008, by and between GAYLORD ENTERTAINMENT
COMPANY, a Delaware corporation having its corporate headquarters
at One Gaylord Drive, Nashville, Tennessee 37214 (“the
Company”) and COLIN V. REED, a resident of Nashville,
Davidson County, Tennessee (“Executive”).
Witnesseth
:
WHEREAS, the Company desires to
employ Executive as its President and Chief Executive Officer, and
Executive desires to serve in such capacity pursuant to the terms
of this Agreement; and
WHEREAS, the Executive has heretofore
been employed by the Company under the terms of an agreement that
expires on April 30, 2008 (the “Prior
Agreement”);
NOW, THEREFORE, in consideration of
the covenants and agreements hereinafter set forth, the parties
hereto agree as follows:
Agreement
1. Employment;
Term; Place of Employment . The Company hereby
employs Executive, and Executive hereby accepts employment with the
Company upon the terms and conditions contained in this Agreement.
The term of Executive’s employment hereunder shall commence
on February 4, 2008 (the “Effective Date”) and
shall continue for a period of two (2) years from and after
the Effective Date (the “Initial Period”). For purposes
of this Agreement, a “Contract Year” shall mean a
one-year period commencing on the Effective Date or any anniversary
thereof. This Agreement shall automatically renew for two
(2) year terms (each referred to as an “Extension
Period”) (the Initial Period and each Extension Period
collectively referred to as the “Employment Period”)
unless either party notifies the other party at least ninety
(90) days prior to the expiration of the Initial Period or any
Extension Period. Executive shall render services at the offices
established by the Company in the greater Nashville metropolitan
area; provided that Executive agrees to travel on temporary trips
to such other places as may be required to perform
Executive’s duties hereunder.
2. Duties; Title.
(a) Description of Duties.
(i) During the Employment Period,
Executive shall serve the Company as its President and Chief
Executive Officer and report directly to the Board of Directors of
Directors (the “Board of Directors”). In addition,
subject to approvals required by the Delaware Business Corporation
Act and the Company’s Certificate of Incorporation and
Bylaws, Executive shall perform the duties of Chairman of the Board
as described by the Company’s Restated Bylaws, as amended
from time to time Executive shall supervise the conduct of the
business and affairs of the Company, its subsidiaries and
respective divisions and perform such other duties as the Board of
Directors shall determine.
(ii) Subject to approvals required by
the Delaware Business Corporation Act and the Company’s
Certificate of Incorporation and Bylaws, Executive shall serve as a
member of the Board of Directors.
(iii) Executive shall faithfully
perform the duties required of his office. Subject to
Section 2(b), Executive shall devote all of his business time
and effort to the performance of his duties to the Company.
(b) Other Activities .
Notwithstanding anything to the contrary contained in
Section 2(a), Executive shall be permitted to engage in the
following activities, provided that such activities do not
materially interfere or conflict with Executive’s duties and
responsibilities to the Company:
(i) Executive may serve on the
governing boards of, or otherwise participate in, a reasonable
number of trade associations and charitable organizations, whose
purposes are not inconsistent with the activities and the image of
the Company;
(ii) Executive may engage in a
reasonable amount of charitable activities and community affairs;
and
(iii) Subject to the prior approval
of the Board of Directors, Executive may serve on the board of
directors of no more than two business corporations, provided also
that they do not compete, directly or indirectly, with the
Company.
(c) Other Policies. Executive
shall be subject to and shall comply with all codes of conduct,
personnel policies and procedures applicable to senior executives
of the Company, including, without limitation, policies regarding
sexual harassment, conflicts of interest and insider trading.
3. Cash
Compensation .
(a) Base Salary . During the
initial Contract Year, the Company shall pay to Executive an annual
salary of $910,000. Executive’s annual salary shall be
increased in each subsequent Contract Year by a percentage set by
the Board of Directors based upon performance and market
competitiveness (such annual salary, together with any increases
under this subsection (b), being herein referred to as the
“Base Salary”).
(b) Annual Cash Bonus .
Executive shall be eligible for an annual cash bonus equal to a
target of 100% of Executive’s Base Salary, up to a maximum of
200% of Base Salary, (the “Annual Bonus”) to be paid to
him in each calendar year, and shall be determined based on
annually set performance goals and criteria, subject and pursuant
to the terms and conditions of the Company’s Cash Incentive
Plan, as it is amended from time to time. The Annual Bonus for each
calendar year shall be paid to Executive on or before the end of
February 28 th of the
immediately succeeding year.
(c) Withholding . The Base
Salary and each Annual Bonus shall be subject to applicable
withholding and shall be payable in accordance with the
Company’s payroll practices.
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4. Benefits;
Expenses; Etc .
(a) Custom Non-Qualified
Mid-Career Supplemental Employee Retirement Plan . Executive
shall be entitled to a nonqualified supplemental executive
retirement benefit (the “SERP”). Company agrees to pay
Executive a retirement benefit which has a value of $2,500,000.00
(the “Initial SERP Benefit”). The Initial SERP Benefit
will be adjusted for hypothetical investment earnings (or losses)
beginning April 23, 2005 until paid to Executive, based on the
investment performance of one or more mutual funds selected by
Executive in his sole discretion, and in a manner consistent with
Treas. Reg. § 1.409A-1(o). Company shall not be responsible
for the quality of the investment performance of any such fund(s).
In addition, Company agrees to pay Executive a retirement benefit
which will have a value of $1,000,000.00 on May 1, 2010 (the
“Additional SERP Benefit”), provided that Executive
continues to be employed by the Company through such date. As of
the Effective Date, and pursuant to the terms of the Prior
Agreement, the Additional SERP Benefit is 40% vested and accrued,
for a value of $400,000, and will continue to accrue and vest at
the rate of an additional 20% per year on each of May 1, 2008,
May 1, 2009 and May 1, 2010, provided that Executive
remains employed by the Company during such period. The Additional
SERP Benefit will be adjusted for hypothetical investment earnings
(or losses) beginning on May 1, 2006 until paid to Executive,
based on the investment performance of one or more mutual funds
selected by Executive in his sole discretion, and in a manner
consistent with Treas. Reg. § 1.409A-1(o). Company shall not
be responsible for the quality of the investment performance of any
such fund(s). Except as otherwise set forth in this Agreement, and
subject to deferral pursuant to Section 6, the Initial SERP
Benefit and the Additional SERP Benefit, as adjusted for
hypothetical investment earnings (or losses) beginning April 23,
2005 based on the investment performance of one or more mutual
funds selected by Executive in his sole discretion (collectively,
the “SERP Benefit”) shall, to the extent then vested,
be payable upon the Executive’s termination of
employment.
The Company will separately account for the portion of the SERP
Benefit earned and vested before January 1, 2005 ($1,875,000)
together with hypothetical investment earnings or losses thereon
(the “Pre-409A SERP Benefit”). Executive’s rights
to the Pre-409A SERP Benefit shall not be modified by this
Agreement but shall be with the Executive’s rights as they
existed on December 31, 2004 under the terms of the Prior
Agreement. As provided under the Prior Agreement, Executive may
elect to receive the Pre-409A SERP Benefit in the form of one (1)
lump-sum payment or equal annual installments over a period not
exceeding fifteen (15) years. Such election by Executive pertaining
to the Pre-409A SERP Benefit shall be made (or may be changed) at
any time, and from time to time, on or before the last day of the
calendar year immediately preceding the calendar year in which the
SERP Benefit could otherwise become payable. If no election is
made, a lump-sum payment of the Pre-409A SERP Benefit will be
made.
The Company will also separately account for the balance of the
SERP Benefit that became earned and/or vested after
December 31, 2004, together with hypothetical investment
earnings or losses (the “409A SERP Benefit”). Executive
may elect (or may change a prior election) to receive the 409A SERP
Benefit in the form of one (1) lump-sum payment or equal
annual installments over a period not exceeding fifteen
(15) years. Such election (including a change in any election
previously made) by Executive pertaining to the 409A SERP Benefit
shall be made by December 31, 2008 (or such later date as
allowed under Code
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Section 409A and guidance thereto). If no election is made, or
if the 409A SERP Benefit first becomes payable in 2008, a lump-sum
payment of the 409A SERP Benefit will be made.
If at Executive’s “separation of service” for
reasons other than death, Executive is a “specified
employee” (as such phrases are defined under Code
Section 409A), payment of the 409A SERP Benefit will commence
on the date that is six (6) months following the date of
separation of service (or such later date as required under
Section 6). In all other cases, the 409A SERP Benefit will
commence thirty (30) days following a separation of service
(or as soon as practicable thereafter).
The Company reserves the right to provide benefits described in
this Section 4(a) under a separate, written deferred compensation
plan or arrangement that will supersede the terms of this
Agreement. The terms and conditions of all benefits described in
this Section 4(a) may be modified by the Company to the extent
necessary to comply with the requirements for deferred compensation
arrangements imposed by Section 409A of the Internal Revenue
Code, as amended from time to time.
For example purposes, a schedule of vesting for the SERP Benefit
based upon the provisions of this Section 4(a) is attached hereto
as Exhibit A and made a part hereof.
(b) Expenses . During the
Employment Period, the Company shall reimburse Executive, in
accordance with the Company’s policies and procedures, for
all reasonable expenses incurred by Executive, including
reimbursement for his reasonable first class travel expenses and,
on up to two occasions per year, those of his spouse, in connection
with the performance of his duties for the Company.
(c) Vehicle Allowance . During
the Employment Period, Executive shall be entitled to receive from
the Company a vehicle allowance of $1,200 per month, subject to
future increases as may be granted to senior executives.
(d) Use of Company Aircraft .
During the Employment Period and subject to availability and the
Company’s relevant reimbursement policies, the Company shall
make available the Company’s jet aircraft to Executive for
reasonable personal use.
(e) Vacation . During the
Employment Period, Executive shall be entitled to four
(4) weeks vacation during each Contract Year.
(f) Executive Financial
Counseling . During the Employment Period, the Company shall
reimburse Executive for up to a maximum of $15,000 of financial
counseling expenses each Contract Year, upon submission of
documentation evidencing such expenses.
(g) Attorney’s Fees .
Executive shall be entitled to reimbursement for reasonable
attorney’s fees and expenses incurred by Executive in the
review and negotiation of this Agreement and any proposed
amendments to this Agreement, upon submission of documentation
evidencing such fees and expenses.
(h) Company Plans . During the
Employment Period, Executive shall be entitled to participate in
and enjoy the benefits of (i) the Company Health Insurance
Plan, (ii) the Company 401(k) Savings Plan, (iii) the
Company Supplemental Deferred Compensation
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(“SUDCOMP”) Plan, and (iv) any health, life,
disability, retirement, pension, group insurance, or other similar
plan or plans which may be in effect or instituted by the Company
for the benefit of senior executives generally, upon such terms as
may be therein provided. Such benefits shall include reimbursement
or payment of up to $15,000 each Contract Year for a physical
examination. A summary of such benefits as in effect on the
Effective Date has been provided to Executive, the receipt of which
is hereby acknowledged.
(i) Retiree Health Coverage .
The Company shall provide Executive and his wife Brenda Reed (and
no subsequent spouse or any other dependent) on the day immediately
preceding his employment termination date (other than a termination
date resulting from a termination by Company for Cause or by
Executive without Good Reason) with medical benefits (including
health care, dental, prescription and vision) until the earliest of
the following occurs: (i) the deaths of Executive and his wife
Brenda Reed; (ii) Executive terminates his coverage under the
plan; (iii) failure of Executive or his wife to make premium
payments as required under the plan; or (iv) Company ceases to
offer medical benefits to any of its active employees. If Executive
terminates his coverage under the plan (except in the case of
death), his wife’s coverage is also terminated. Once
Executive or his wife’s coverage is terminated, it cannot be
reinstated for any reason. Executive shall pay the same cost or the
same portion of the cost to Company of providing him and his wife
with coverage as paid by executive employees for similar coverage,
as determined by Company in its sole discretion. Coverage made
available to Executive and his wife shall be substantially similar
to coverage provided to Executive and his wife during the
Employment Period. Such benefit continuation coverage may be
provided through COBRA continuation rights, an insurance contract,
benefit plan or similar arrangement, or a combination thereof, at
the Company’s discretion.
(j) Section 409A
Compliance . Except for payments to Executive arising from
Sections 4(a), and 4(h)(iii), the payments described in this
Agreement are not intended to be payments of deferred compensation
subject to the requirements of Code Section 409A. In the event
a payment arising from one of these paragraphs is determined to be
deferred compensation subject to Code Section 409A, and in the
event that the Executive can make an election regarding the timing
of the payment, the payment will instead be made in the calendar
year following the calendar year in which the liability for
reimbursement arose or, if later, at the earliest time possible so
that the deduction related to such payment will not be limited or
eliminated by application of Internal Revenue Code
Section 162(m).
5. Deferral of
Excessive Employee Remuneration .
(a) Deferral of Current
Compensation . During any period in which Executive is a
“covered employee” within the meaning of
Section 162(m)(3), any “applicable employee
remuneration” otherwise payable to Executive in excess of the
limit specified in Section 162(m)(1) or any successor provision of
the Code (currently $1,000,000) shall not be currently paid, but
shall be a deferred payment obligation of the Company governed by
the provisions of this Section 6.
(b) Vesting of Deferred
Compensation; Investment Earnings . All such deferred payment
obligations shall be fully vested and shall be adjusted for
hypothetical investment earnings (or losses) until paid to
Executive. The rate of investment earnings (or losses) of such
deferred amounts shall be equal to the rate of investment earnings
(or losses) of one or
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more mutual funds selected by Executive, in his sole discretion.
The Company shall not be responsible for the quality of the
investment performance of any such fund(s).
(c) Deposit to Rabbi Trust .
In order to facilitate the payment of the Company’s deferred
payment obligation, at the time that the Company would otherwise
make a payment to Executive but for the Code Section 162(m)
limitations, the Company shall deposit an amount of cash equal to
the amount which is being deferred, into “Account A” of
the Deferred Compensation Rabbi Trust (the “Rabbi
Trust”) that has been established by the Company and is
described in Section 6 hereof.
(d) Distribution of Deferred
Amounts . Amounts deferred pursuant to this Section 5 and
earnings thereon, shall be paid to Executive at the earliest time
possible so that the deduction related to such payment will not be
limited or eliminated by application of Internal Revenue Code
Section 162(m). In the event the time of payment is expected
to be later than ten (10) days following the termination of
Executive’s employment with the Company (without regard to
the reason of such termination), the Company shall provide
Executive with a copy of a written opinion from counsel confirming
the need to delay the payment and specifying the earliest date upon
which payment may be made so that the deduction related to such
payment will not be limited or eliminated by application of
Internal Revenue Code Section 162(m). Distributions from the
Rabbi Trust shall to the extent feasible be made from Account A
prior to any distributions from Account B.
6. Rabbi
Trust . It is understood and agreed by the parties
that (i) the Rabbi Trust shall remain subject to the claims of
the Company’s general creditors; (ii) any income tax
payable with respect to the Rabbi Trust shall be the sole
obligation and responsibility of the Company (and shall not reduce
the assets in the Rabbi Trust so long as the Rabbi Trust remains a
“grantor trust” for federal income tax purposes); and
(iii) the establishment of the Rabbi Trust shall not relieve
the Company of its liability to pay amounts due under this
Agreement. The Rabbi Trust shall, however, relieve the Company of
its liability to pay amounts due under this Agreement to the extent
that payments are made in accordance with the terms of this
Agreement and the Rabbi Trust.
7.
Termination . Executive’s employment
hereunder may be terminated prior to the expiration of the
Employment Period as follows:
(a) Termination by Death .
Upon the death of Executive (“Death”),
Executive’s employment shall automatically terminate as of
the date of Death.
(b) Termination by Company for
Permanent Disability . At the option of the Company,
Executive’s employment may be terminated by written notice to
Executive or his personal representative in the event of the
Permanent Disability of Executive. As used herein, the term
“Permanent Disability” shall mean a physical or mental
incapacity or disability which renders Executive unable
substantially to render the services required hereunder for a
period of ninety (90) consecutive days or one hundred eighty
(180) days during any twelve (12) month period as
determined in good faith by the Company.
(c) Termination by Company for
Cause . At the option of the Company, Executive’s
employment may be terminated by written notice to Executive upon
the occurrence of any one or more of the following events (each, a
“Cause”):
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(i) any action by Executive
constituting fraud, self-dealing, embezzlement, or dishonesty in
the course of his employment hereunder;
(ii) any conviction of Executive of a
crime involving moral turpitude;
(iii) failure of Executive after
reasonable notice promptly to comply with any valid and legal
directive of the Board of Directors;
(iv) a material breach by Executive
of any of his obligations under this Agreement and failure to cure
such breach within ten (10) days of his receipt of written
notice thereof from the Company; or
(v) a failure by Executive to perform
adequately his responsibilities under this Agreement as
demonstrated by objective and verifiable evidence showing that the
business operations under Executive’s control have been
materially harmed as a result of Executive’s gross negligence
or willful misconduct.
(d) Termination by Executive for
Good Reason . At the option of Executive, Executive may
terminate his employment by written notice to Company given within
ninety days (90) after the occurrence of the following
circumstances (“Good Reason”), unless the Company cures
the same within thirty (30) days of such notice:
(i) Any adverse change by Company in
the Executive’s position or title described in Section 2
hereof, whether or not any such change has been approved by a
majority of the members of the Board;
(ii) The assignment to Executive,
over his reasonable objection, of any duties materially
inconsistent with his status as President and Chief Executive
Officer or a substantial adverse alteration in the nature of his
responsibilities;
(iii) A reduction by Company in his
annual base salary of $910,000 as the same may be increased from
time to time pursuant to Section 3(b) hereof;
(iv) Company’s requiring
Executive to be based anywhere other than the Company’s
headquarters in Nashville, Tennessee except for required travel on
the Company’s business;
(v) The failure by Company, without
Executive’s consent, to pay to him any portion of his current
compensation, except pursuant to this Agreement or pursuant to a
compensation deferral elected by Executive, or to pay to Executive
any portion of an installment of deferred compensation under any
deferred compensation program of Company within thirty days of the
date such compensation is due;
(vi) Except as permitted by this
Agreement, the failure by Company to continue in effect any
compensation plan (or substitute or alternative plan) in which
Executive is entitled to participate which is material to
Executive’s total compensation, or the failure by the Company
to continue Executive’s participation therein on a basis that
is materially as favorable both in terms of the amount of
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benefits provided and the level of Executive’s participation
relative to other participants at Executive’s grade level;
or
(vii) The failure by Company to
continue to provide Executive with benefits substantially similar
to those enjoyed by senior executives under the Company’s
pension and deferred compensation plans, and the life insurance,
medical, health and accident, and disability plans in which
Executive is entitled to participate, except as required by law, or
the taking of any action by the Company which would directly or
indirectly materially reduce any of such benefits or deprive
Executive of any material fringe benefit enjoyed by Executive, or
the failure by the Company to provide Executive with the number of
paid vacation days to which Executive is entitled; or
(viii) A material breach by the
Company of any of its obligations under this Agreement or th
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