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EXHIBIT 10.19(c)
WYNDHAM HOTEL CORPORATION
NON-EMPLOYEE DIRECTORS' RETAINER STOCK PLAN
SECTION 1. PURPOSE. The purpose of the Wyndham Hotel Corporation
Non-Employee Directors' Retainer Stock Plan (the "Plan") is to provide to
non-employee directors of Wyndham Hotel Corporation (the "Company") the
opportunity to elect to receive all or a portion of their annual retainer fees
in the form of Common Stock of the Company, or to defer receipt of a portion of
such fees and have the deferred amounts treated as if invested in Common Stock.
SECTION 2. DEFINITIONS. As used in the Plan, the following terms
shall have the meanings set forth below:
(a) "Annual Retainer" means the amounts payable by the Company to
a Non-Employee Director as an annual retainer for services as a director, but
does not include meeting fees or reimbursement for expenses, such retainer to
be payable in such increments and at such times as the Committee may establish
from time to time.
(b) "Beneficiary" means a person (including any trustee)
designated by a Participant to receive the benefits specified hereunder, in the
event of the Participant's death, or, if there is no surviving designated
Beneficiary, the Participant's estate.
(c) "Board of Directors" means the Board of Directors of the
Company.
(d) "Deferral Account" means the account established and
maintained by the Company for each Participant, which is to be credited, as
hereinafter set forth, with the portion of a Participant's Annual Retainer
which is deferred pursuant to the Plan, together with earnings thereon as
provided for herein. Amounts credited to a Participant's Deferral Account will
be deemed to have been invested in Stock, and therefore will be shown as a
number of Stock equivalents. Deferral Accounts will be maintained solely as
bookkeeping entries by the Company to evidence unfunded, generally
non-transferable obligations of the Company.
(e) "Fair Market Value" shall mean for shares of Stock, the
closing price of the Stock on such date (or if there are no sales on such date,
on the next preceding date on which there were sales), as reported on the
principal consolidated transaction reporting system for the principal national
securities exchange on which the Stock is listed or admitted to trading, or if
the Stock is not listed or admitted to trading on any national securities
exchange, the closing price of the Stock as reported on the National Market
System of the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ"), or if the Stock is not listed or admitted to
trading on the NASDAQ National Market System, the last quoted sales price or,
if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the NASDAQ System or such other system
as may then be in use, or if the Stock is not reported on any such system and
is not
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listed or admitted to trading on any national securities exchange, the average
of the closing bid and asked prices as furnished by a professional market maker
making a market in the Common Stock selected by the Board of Directors, or if
no such market maker is making a market in the Common Stock, the fair value of
the Common Stock as determined in good faith by the Board of Directors.
During the period immediately preceding the Company's initial public
offering of its Common Stock pursuant to a Form S-1 Registration Statement
filed with the Securities and Exchange Commission, the "Fair Market Value" for
shares of Common Stock shall be the offering price per share of Common Stock as
set forth on the cover page of the prospectus contained in the Form S-1
Registration Statement as declared effective by the Securities and Exchange
Commission.
(f) "Non-Employee Director" means a member of the Board of
Directors who, on January 1 of any Plan Year (or such later date as he is first
elected or appointed to the Board of Directors), is not an employee of the
Company or any parent or subsidiary company.
(g) "Participant" means any Non-Employee Director who actually
participates in the Plan in any Plan Year.
(h) "Plan Year" means each year beginning on the first day of
January and ending on the 31st day of December; provided, however, that the
initial plan year shall commence on April 18, 1996 and end on December 31,
1996.
(i) "Stock" means Wyndham Hotel Corporation Common Stock, $0.01
par value per share.
SECTION 3. PARTICIPATION. Only Non-Employee Directors may
participate in the Plan. Participation in the Plan is voluntary. To
participate in the Plan for any Plan Year, a Non-Employee Director must make a
written election both (i) six months prior to the date the Annual Retainer, or,
if applicable, the first portion thereof, is to be paid to the Non-Employee
Director, and (ii) on or prior to December 31. Each election or change in
election will be effective as of the later of (i) six months following the
election, or (ii) January 1 following the election. Notwithstanding the
preceding, an initial election for a newly appointed or elected Non-Employee
Director may be filed with the Company not later than 30 days following the
date on which the individual was appointed or elected to the Company's Board of
Directors and shall be effective six months following the election.
Notwithstanding the preceding, elections that are filed with the Company prior
to May 18, 1996 shall be effective on the day they are received by the Company.
The Non-Employee Directors may elect either to (i) receive Stock in
lieu of cash for part or all of such Non- Employee Director's annual retainer,
or (ii) defer the receipt of all
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or part of such Non-Employee Director's annual retainer and have the deferred
amounts treated as if invested in Stock.
The election shall evidence the Non-Employee Director's acceptance of
the benefits and terms of the Plan, and set forth the elections described in
Section 5. All elections set forth therein shall be deemed to be continuing
and therefore applicable to subsequent Plan Years unless the Non-Employee
Director revokes the application or changes such elections by filing a
subsequent irrevocable election no later than December 31 of the Plan Year
immediately prior to January 1 of the Plan Year for which the new election is
to become effective.
SECTION 4. ADMINISTRATION.
(a) Administration. The Board of Directors shall from time to
time appoint two or more persons to administer the Plan out of those members of
the Board of Directors who have not been eligible to participate in the Plan
(the "Committee") and who shall not be eligible to participate in the Plan.
The Committee shall administer and enforce the Plan in accordance with its
terms, and shall have all powers necessary to accomplish those purposes,
including but not limited to the following:
(1) To compute and certify the amount and kind of benefits payable
to Participants and their Beneficiaries;
(2) To maintain or to designate any person or entity to maintain
all records necessary for the administration of the Plan;
(3) To make and publish such rules for the regulations of the Plan
as are not inconsistent with the terms hereof; and
(4) To provide for disclosure of such information, including
reports and statements to Participants or Beneficiaries, and
for the making of applications and elections by Participants
under the Plan as may be required by the Plan or otherwise
deemed appropriate by the Committee.
Any action of the Committee with respect to the Plan shall be conclusive and
binding upon all persons interested in the Plan except to the extent otherwise
specifically indicated herein. The Committee may appoint agents and delegate
thereto such powers and duties in connection with the administration of the
Plan as the Committee may from time to time prescribe.
(b) Compliance with Rule 16b-3. Other provisions of the Plan
notwithstanding, neither the Committee nor any other person (other than a
Participant acting in conformity with the terms of the Plan) shall have any
discretionary authority to make determinations regarding (i) eligibility to
become a Participant, (ii) the times when elections can be made,
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when Stock will be issued or Stock equivalents credited to the Deferral
Accounts of Participants, or when distributions will be made, (iii) the portion
of a Participant's Annual Retainer that may be allocated to the acquisition of
Stock or Stock equivalents by Participants under the Plan, the calculation of
the amount of such Stock or Stock equivalents by Participants under the Plan,
the calculation of the amount of such Stock or Stock equivalents to be acquired
thereby, and the payment or deemed reinvestment of dividend equivalents, or
(iv) any other decisions under the Plan required by Rule 16b-3(b) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") to be afforded
exclusively to "disinterested persons" as defined thereunder. Transactions
under this Plan are intended to comply with all applicable conditions of Rule
16b-3 or its successor under the Exchange Act. To the extent any provision of
the Plan or action by the Committee fails to so comply, such provision or
action shall be deemed null and void to the extent permitted by law and deemed
advisable by the Committee.
(c) Annual Statement. The Committee shall furnish to each
Participant an annual statement indicating the number of Stock equivalents
credited to his Deferral Account as of the end of the preceding Plan Year.
SECTION 5. ELECTIONS BY PARTICIPANTS. Each Non-Employee Director who
elects to participate in this Plan for any Plan Year must irrevocably elect
until such time as a subsequent election is made in accordance with Section 3,
the following:
(a) Whether to receive payment of 0, 50% or 100% of his or her
Annual Retainer in the form of Stock under the Plan; and
(b) Whether to defer payment of any whole percentage up to 100% of
his or her Annual Retainer, to be credited to the
Participant's Deferral Account, to be deemed to be invested in
Stock and paid in accordance with Section 7 of the Plan; and
(c) Whether dividend equivalents, if any, on any amounts credited
to such Deferral Account shall be paid directly to the
Participant or credited to the Deferral Account and deemed to
be reinvested in Stock.
The combined percentage of the Annual Retainer to be paid in Stock and
deferred under the Plan shall not exceed 100% of the Annual Retainer for any
Plan Year. In the event the Annual Retainer is increased during any Plan Year,
a Participant's elections pursuant to Section 5 in effect for such Plan Year
shall apply to the amount of such increase.
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SECTION 6. RECEIPT OF STOCK IN PAYMENT OF PORTION OF RETAINER.
(a) Transfer of Stock to Participant. The Company shall transfer
to a Participant who elects to receive all or a portion of the Annual Retainer
in the form of Stock under Section 5(a) hereof a number of shares of stock
having a Fair Market Value equal to such portion of the Annual Retainer on the
last trading day prior to the date or dates on which the cash portion of the
Participant's Annual Retainer is paid (or otherwise would be paid but for the
election to receive Stock). No fractional shares shall be issued, however; in
lieu thereof, the cash Fair Market Value of any fractional share shall be paid
to Participant.
(b) Restrictions on Stock. As promptly as practicable after the
date or dates that the Annual Retainer is paid, a certificate representing the
shares of Stock elected to be received by a Participant hereunder shall be
issued in the name of the Participant. Upon issuance of such certificate, the
Participant shall be subject to all rights of a holder of Stock, including the
rights to vote such Stock and to receive dividends thereon, subject to the
following restrictions:
(1) If a restriction on the transferability of the Stock is, at
the time of issuance, required in order for the issuance and
delivery to the Participant (and any related election) to be
an exempt transaction under Rule 16b-3 under the Exchange Act,
then Stock issued to a Participant hereunder may not be sold
for at least six months after acquisition (or such shorter
period as may be required), other than by will or the laws of
descent and distribution or pursuant to a qualified domestic
relations order; and
(2) During any period in which the transferability of Stock is
restricted hereunder, the Company shall retain custody of any
certificate representing the Stock.
The Company shall impose such other restrictions on Stock transferred
to a Participant hereunder as it may deem advisable in order to comply with the
Securities Act of 1933, as amended, the requirements of any stock exchange or
automated quotation system upon which the Stock is then listed or quoted, any
state securities laws applicable to such a transfer, or any provision of the
Company's Articles of Incorporation or By-Laws or any binding contract to which
the Company is a party.
(c) Nature of Stock Transferred. The Stock to be transferred from
the Company to Participants hereunder may be either treasury shares or
authorized but unissued shares of the Company.
SECTION 7. DEFERRAL OF PORTION OF ANNUAL RETAINER.
(a) Crediting of Portion of Annual Retainer to Deferral Account of
Participant. The Company shall credit to the Deferral Account of a Participant
who elects to defer a portion of his Annual Retainer under Section 5(b) hereof
an amount, expressed as Stock
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equivalents, equal to the number of shares of Stock having an aggregate Fair
Market Value equal to such portion of the Annual Retainer at the last trading
date prior to the date on which the Participant's Annual Retainer would
otherwise have been due. The amount of Stock equivalents credited to such
Deferral Account shall be carried to three decimal places, and shall include
any fractional share.
(b) Payment or Crediting of Dividend Equivalent. Whenever a cash
dividend is paid with respect to Stock, a Participant shall be entitled to the
amount equal in value to the amount of the dividend paid on a single share of
Stock multiplied by the number of Stock equivalents (including fractions)
credited to his Deferral Account as of the date of record for dividend
purposes. Such dividend equivalents shall, in accordance with the
Participant's election under Section 5(c), either be paid directly to the
Participant or shall be credited to the Participant's Deferral Account as an
amount, expressed as Stock equivalents, equal to the number of shares of Stock
having an aggregate Fair Market Value at the dividend payment date equal to the
value of such dividend equivalents.
(c) Adjustments to Deferral Accounts. The amount of Stock
equivalents in each Participant's Deferral Account shall be appropriately
adjusted upon the occurrence of any stock split, reverse stock split, or stock
dividend or other non-cash distribution. In the event of any other
extraordinary transaction affecting Stock after which Stock will no longer be
registered under Section 12 of the Exchange Act, Stock equivalents credited to
Deferral Accounts shall be converted into cash equivalents of equal value at
the date of such transaction, with interest equivalents paid or credited
thereafter on a monthly basis, at the prime rate of interest being charged by
NationsBank Texas, N.A. as in effect on the last business day of each month.
(d) Vesting. The interest of each Participant in any benefit
payable with respect to a Deferral Account hereunder shall be at all times
fully vested and non-forfeitable.
(e) Designation of Beneficiaries. Each Participant may designate
one or more Beneficiaries to receive the amounts distributable from the
Participant's Deferral Account under the Plan in the event of such
Participant's death. Such designations shall be made on forms provided by the
Company. A Participant may from time to time change his designated
Beneficiaries, without the consent of such Beneficiaries, by filing a new
designation in writing with the Company. The spouse of a Participant shall
join in any designation of Beneficiaries other than such spouse. The Company
may rely upon the Beneficiary designation last filed in accordance with the
terms of the Plan.
(f) Distributions Relating to Deferral Accounts. Distributions
from Deferral Accounts shall be made in shares of Stock equal to the number of
Stock equivalents in the Participant's Deferral Account. Except as set forth in
Section 7(g) below, the Company shall transfer to a Participant, as of the date
which is the third anniversary of the date upon which the retainer fee would
have been paid in cash to the Participant absent his deferral election (the
"Payment Date"), shares of Stock equal to the number of Stock equivalents
credited to
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the Participant's Deferral Account. No fractional shares shall be issued,
however; in lieu thereof, the cash Fair Market Value of any fractional share
shall be paid to a Participant. As promptly as practicable after the Payment
Date, a certificate representing the shares of Stock shall be issued in the
name of the Participant. Upon issuance of such certificate, the Participant
shall be subject to all rights of a holder of Stock, including the rights to
vote such Stock and to receive dividends thereon, subject to the following
restrictions:
(1) If a restriction on the transferability of the Stock is, at
the time of issuance, required in order for the issuance and
delivery to the Participant (and any related election) to be
an exempt transaction under Rule 16b-3 under the Exchange Act,
then Stock issued to a Participant hereunder may not be sold
for at least six months after acquisition (or such shorter
period as may be required), other than by will or the laws of
descent and distribution or pursuant to a qualified domestic
relations order; and
(2) During any period in which the transferability of Stock is
restricted hereunder, the Company shall retain custody of any
certificate representing the Stock.
The Company shall impose such other restrictions on Stock transferred
to a Participant hereunder as it may deem advisable in order to comply with the
Securities Act of 1933, as amended, the requirements of any stock exchange or
automated quotation system upon which the Stock is then listed or quoted, any
state securities laws applicable to such a transfer, or any provision of the
Company's Articles of Incorporation or By-Laws or any binding contract to which
the Company is a party.
(g) Nature of Stock Transferred. The Stock to be transferred from
the Company to Participants hereunder may be either treasury shares or
authorized but unissued shares of the Company.
(h) Death; Change of Control. In the event the Participant dies
prior to receipt of the full distribution of benefits with respect to his
Deferral Account, the Company shall transfer to the Participant's
Beneficiaries, shares of Stock equal to the number of Stock equivalents
credited to the Participant's Deferral Account as of the date of the
Participant's death. Such transfer shall be made to the Participant's
Beneficiaries as promptly as practicable after such date, and shall be subject
to all of the provisions of paragraph 7(f) hereof.
In the event of a Change of Control of the Company, as defined
below, unless provision is otherwise made in writing in connection with the
transaction by the Committee, the Company shall pay to a Participant in cash,
in a single lump sum, an amount equal to the Fair Market Value of the Stock
equivalents credited to the Participant's Deferral Account as of the date of
such Change of Control. Such payment shall be made to the Participant as
promptly as practicable after such date. As used herein, a "Change of Control"
shall mean the occurrence of any one or more of the following events or similar
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events in any single transaction or series of related transactions: (a) a
merger or consolidation of the Company with or into another corporation in
which the Company shall not be the surviving corporation, (b) a dissolution of
the Company, (c) a transfer of all or substantially all of the assets of the
Company in one transaction or a series of related transactions to one or more
other persons or entities, (d) if any "person" or "group" (as those terms are
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the
"Act")), other than Excluded Persons and any Excluded Group, becomes the
"beneficial owner" (as defined in Rule 13d-3 of the Act), directly or
indirectly, of securities of the Company representing 45% or more of the
combined voting power of the Company's then outstanding securities, or (e)
during any period of two consecutive years commencing on or after June 1, 1996,
individuals who at the beginning of the period constituted the Board (together
with any new directors whose election by such Board or whose nomination for
election by the Stockholders of the Company was approved by a majority of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute at least a majority of the Board
of Directors then in office, unless the election of each director who was not a
director at the beginning of the period has been approved in advance by
directors representing at least two-thirds (2/3) of the directors then in
office who were directors at the beginning of the period. The term "Excluded
Persons" means each of (i) Trammell or Margaret Crow, or any lineal descendant
of Trammell and Margaret Crow, or any trust of which not less than 75% of the
beneficial interests are held by Trammell or Margaret Crow or such lineal
descendants, or any partnership, corporation or other entity of which not less
than 75% of the outstanding equity interests are owned directly or indirectly
by Trammell or Margaret Crow or such descendants, (ii) Wynopt Investment
Partnership Level II, a Delaware limited partnership ("Wynopt II"), or Wynopt
Investment Partnership, a Delaware limited partnership ("Wynopt"), or an
"affiliate" (as such term is defined in Rule 12b-2 under the Act) of Wynopt II
or Wynopt (x) of which not less than 75% of the outstanding equity interests
are owned directly or indirectly by the direct or indirect owners of the
outstanding equity interests of Wynopt II and Wynopt as of the effective date
of the Plan and (y) the business and affairs of which are controlled by Donald
J. McNamara, Robert A. Whitman and Daniel A. Decker or any of them, or (iii) a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company. The term "Excluded Group" means a "group" (as defined above) that
includes one or more Excluded Persons, provided that the voting power of the
Company's outstanding voting securities "beneficially owned" (as defined above)
by such Excluded Persons (without attribution to such Excluded Persons of the
ownership by other members of the "group") represents not less than 75% of the
voting power of the securities "beneficially owned" by such "group."
At the time of any payment with respect to a Participant's
Deferral Account, the balance of such account shall be reduced to reflect such
payment.
SECTION 8. AMENDMENTS TO THE PLAN, TERMINATION OF THE PLAN. The
Board of Directors of the Company may amend, alter, suspend, discontinue, or
terminate the Plan
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without the consent of Participants, shareholders, or any other person;
provided, however, that without the consent of a Participant, no such
amendment, alteration, suspension, discontinuation, or termination of the Plan
shall materially and adversely affect the rights of such Participant with
respect to any rights to payment of amounts credited to such Participant's
Deferral Account; and provided further, that provisions of the Plan relating to
(i) eligibility to become a Participant, (ii) the times when elections can be
made, when Stock will be issued or Stock equivalents credited to the Deferral
Accounts of Participants, or when distributions will be made, or (iii) the
portion of a Participant's Annual Retainer that may be allocated to the
acquisition of Stock or Stock equivalents to be acquired thereby, and the
payment or deemed reinvestment or dividend equivalents shall not be amended
more than once every six months (except to comport with changes in the Internal
Revenue Code or the rules thereunder). The Plan has no fixed termination date.
SECTION 9. GENERAL PROVISIONS.
(a) Limits on Transfer of Awards; Beneficiaries. No right or
interest of a Participant under the Plan shall be pledged, encumbered, or
hypothecated, shall be liable for or subject to any lien, obligation, or
liability of such Participant, or shall be assignable or transferable by a
Participant otherwise than by will or the laws of descent and distribution;
provided, however, that a Participant may designate Beneficiaries to receive
any payment or distribution under the Plan in the event of death of the
Participant. A Beneficiary, guardian, legal representative, or other person
claiming any rights under the Plan from or through any Participant shall be
subject to all terms and conditions of the Plan applicable to such Participant,
except to the extent the Plan otherwise provides with respect to such persons.
(b) Receipt and Release. Any payment to any Participant or
Beneficiary in accordance with the provisions of the Plan shall, to the extent
thereof, be in full satisfaction of all claims against the Company or the
Committee, and the Committee may require such Participant or Beneficiary, as a
condition to such payment, to execute a receipt and release to such effect.
(c) Unfunded Status of Awards; Creation of Trusts. The Plan is
intended to constitute an "unfunded" plan for incentive and deferred
compensation. With respect to any payment not yet made to a Participant under
the Plan, nothing contained in the Plan shall give a Participant any rights
that are greater than those of a general creditor of the Company; provided,
however, that the Board of Directors may authorize the creation of trusts or
make other arrangements to meet the Company's obligations under the Plan, which
trusts or other arrangements shall be consistent with the "unfunded" status of
the Plan unless the Board otherwise determines with the consent of each
affected Participant.
(d) No Rights of a Shareholder. No Participant shall have any of
the rights or privileges of a shareholder of the Company as a result of the
making of an election under Section 5 of this Plan until Stock is actually
issued pursuant to Sections 6 or 7 of the Plan.
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(e) No Right to Continued Election as a Director. Nothing
contained in the Plan shall confer, and no establishment of or crediting of any
amounts to a Deferral Account shall be construed as conferring, upon any
Participant, any right to continue as a director, or to interfere in any way
with the right of the Company to increase or decrease the amount of the Annual
Retainer or any other compensation payable to Non-Employee Directors.
(f) Plan Expenses. All expenses and costs incurred in connection
with the operation of the Plan shall be borne by the Company.
(g) Governing Law. The validity, construction, and effect of the
Plan and any rules and regulations relating to the Plan shall be determined in
accordance with the laws of the State of Texas, without giving effect to
principles of conflicts of laws, and applicable federal law.
(h) Interpretation. Whenever necessary or appropriate in the
Plan, where the context admits, the singular term and the related pronouns
shall include the plural and the masculine gender shall include the feminine
gender.
(i) Successors and Assigns. This Plan shall inure to the benefit
of, and be binding upon, the parties hereto and their successors and assigns.
SECTION 10. EFFECTIVE DATE; SHAREHOLDER APPROVAL. The Plan shall be
effective as of April 18, 1996, subject to the requirement that the Plan be
approved by the affirmative vote of holders of shares representing a majority
of the number of votes present in person or represented by proxy at the Annual
Meeting of Shareholders of the Company to be held during 1996. Other
provisions of the Plan notwithstanding, until shareholders of the Company
approve the Plan, (i) Stock transferred to a Participant pursuant to Section 6
hereof shall not be transferable, (ii) such Stock shall be subject to
forfeiture by the Participant to the Company (without interest) in the event
shareholders fail to approve the Plan in accordance with the terms of this
Section 10, and (iii) no transfer of Stock with respect to any amount deferred
pursuant to Section 7 hereof shall be made. In the event shareholders fail to
approve the Plan and Stock is therefore forfeited and/or Deferral Accounts are
cancelled, the amount of Annual Retainers theretofore elected to be received in
the form of Stock or deferred under the Plan shall be paid to Participants in
cash, together with interest at the rate set forth in Section 7(c).
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