EXHIBIT 10.4
AMENDMENT NO. 1 TO
MARK FIORAVANTI EMPLOYMENT AGREEMENT
This Amendment No. 1 to Employment Agreement, dated as of November 4, 2005
(the "Amendment") is by and between Gaylord Entertainment Company, a Delaware
corporation having its corporate headquarters at One Gaylord Drive, Nashville,
Tennessee 37214 (the "Company") and Mark Fioravanti, a resident of Nashville,
Davidson County, Tennessee ("Executive").
W I T N E S S E T H:
WHEREAS, the Company and Executive entered into that certain Employment
Agreement dated as of July 15, 2003 (the "Employment Agreement"), pursuant to
which, among other things, the Company hired the Executive to be one of its
senior officers;
WHEREAS, the Company and Executive have now agreed to various amendments
to the Employment Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements hereafter
set forth, the parties hereto agree as follows:
1. Amendment of Section 7 of Employment Agreement. Section 7 of the
Employment Agreement is deleted in its entirety and replaced with the following
new Sections 7 and 7A:
"7. CHANGE OF CONTROL.
(a) Definition. A "Change of Control" shall be deemed to have taken
place if:
(i) any person or entity, including a "group" as defined
in Section 13(d)(3) of the Securities Exchange Act of 1934, other than the
Company, a wholly-owned subsidiary thereof, or any employee benefit plan
of the Company or any of its subsidiaries becomes the beneficial owner of
Company securities having 35% or more of the combined voting power of the
then outstanding securities of the Company that may be cast for the
election of directors of the Company (other than as a result of the
issuance of securities initiated by the Company in the ordinary course of
business);
(ii) individuals who, as of the date of this Amendment,
were members of the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the members of the Board; provided that
any individual who becomes a director after such date whose election or
nomination for election by the Company's shareholders was approved by
two-thirds of the members of the Incumbent Board (other than an election
or nomination of an individual whose initial assumption of office is in
connection with an actual or threatened "election contest" relating to the
election of the
directors of the Company (as such terms are used in Rule 14a-11 under the
Securities Exchange Act of 1934), "tender offer" (as such term is used in
Section 14(d) of the Securities Exchange Act of 1934) or a proposed
transaction described in clause (iii) below) shall be deemed to be members
of the Incumbent Board;
(iii) as the result of, or in connection with, any cash
tender or exchange offer, merger or other business combination, sale of
assets or contested election, or any combination of the foregoing
transactions, the holders of all the Company's securities entitled to vote
generally in the election of directors of the Company immediately prior to
such transaction constitute, following such transaction, less than a
majority of the combined voting power of the then-outstanding securities
of the Company or any successor corporation or entity entitled to vote
generally in the election of the directors of the Company or such other
corporation or entity after such transactions; or
(iv) the Company sells all or substantially all of the
assets of the Company.
(b) Effect of Change of Control. In the event that within one (1)
year following a Change of Control, the Company terminates Executive
Without Cause or Executive terminates employment for Good Reason (and for
purposes of the definition of "Good Reason" as used in this paragraph
7(b), the following two circumstances shall also constitute Good Reason in
addition to the three circumstances described in Section 5(d): (i) any
adverse change by Company in the Executive's position or title in effect
immediately prior to such Change of Control, whether or not any such
change has been approved by a majority of the members of the Board; and
(ii) the assignment to Executive, over his reasonable objection, of any
duties materially inconsistent with his status immediately prior to such
Change of Control or a substantial adverse alteration in the nature of his
responsibilities), Executive shall be entitled to: (i) the payment of
three (3) times Executive's Base Salary for the year in which such
termination shall occur; (ii) the payment of three (3) times Executive's
Annual Bonus for the preceding year; (iii) any unpaid portion of any
Annual Bonus for prior calendar years, accrued and unpaid vacation pay,
unreimbursed expenses incurred pursuant to Section 4(a) or (b) and any
other benefits owed to Executive pursuant to any written employee benefit
plan or policy of the Company; (iv) the portion of restricted stock that
is free from restrictions as of the date of termination and the
acceleration and immediate release of all restrictions from all restricted
stock grants that are subject to restrictions as of the date of
termination; and (v) the vested portion of Executive's Stock Options and
the acceleration and immediate vesting of any unvested portion of
Executive's Stock Options. Executive shall have two (2) years from the
date of such termination to exercise all vested Stock Options.
7A. EXCISE TAX REIMBURSEMENT. In connection with or arising out of a
Change in Control of the Company, in the event Executive shall be subject to the
tax imposed by Section 4999 of the Code (the "Excise Tax") in respect of any
payment or distribution by the Company or any other person or entity to or for
Executive's benefit, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, or whether prior to or
following any termination of Executive other than Termination for Cause or By
Executive
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without Good Reason (a "Payment"), the Company shall pay to Executive
an additional amount. The additional amount (the "Gross-Up Payment") shall be
equal to the Excise Tax, together with any federal, state and local income tax,
employment tax and any other taxes associated with this payment such that
Executive incurs no out-of-pocket expenses associated with the Excise Tax.
Provided, however, nothing in this Section shall obligate the Company to pay
Executive for any federal, state or local income taxes imposed upon Executive by
virtue of a Payment. For purposes of determining whether any of the Payments
will be subject to the Excise Tax and the amount of such Excise Tax the
following will apply:
(a) Determination of Parachute Payments. Any payments or benefits
received or to be received by Executive in connection with a Change in
Control of the Company or his termination of employment other than by the
Company for Cause or by Executive Without Good Reason shall be treated as
"parachute payments" within the meaning of Section 280G(b)(2) of the Code,
and all "excess parachute payments" within the meaning of Section
280G(b)(1) shall be treated as subject to the Excise Tax, unless in the
opinion of tax counsel selected by the Company's independent auditors and
acceptable to Executive such other payments or benefits (in whole or in
part) do not constitute parachute payments, or such excess parachute
payments (in whole or in part) represent reasonable compensation for
services actually rendered within the meaning of Section 280G(b)(3) of the
Code, or are otherwise not subject to the Excise Tax; and
(b) Valuation of Benefits and Determination of Tax Rates. The value
of any non-cash benefits or any deferred payment or benefit shall be
determined by the Company's independent auditors in accordance with
proposed, temporary or final regulations under Section 280G(d)(3) and (4)
of the Code or, in the absence of such regulations, in accordance with the
principles of Section 280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, Executive shall be deemed
to pay federal income taxes at the highest marginal rate of federal income
taxation in the calendar year in which the Gross-Up Payment is to be made
and state and local income taxes at the highest marginal rate of taxation
in the state and locality of Executive's residence on the date of
termination of his employment, net of the applicable reduction in federal
income taxes which could be obtained from deduction of such state and
local taxes.
(c) Repayment of Gross-Up by Executive and Possible Additional
Gross-Up by Company. In the event that the amount of Excise Tax
attributable to Payments is subsequently determined to be less than the
amount taken into account hereunder at the time of termination of
Executive's employment, he shall repay to the Company at the time that the
amount of such reduction in Excise Tax is finally determined the portion
of the Gross-Up Payment attributable to such reduction (including the
portion of the Gross-Up Payment attributable to the Excise Tax, employment
tax and federal (and state and local) income tax imposed on the Gross-Up
Payment being repaid by Executive if such repayment results in a reduction
in Excise Tax and/or a federal (and state and local) income tax deduction)
plus interest on the amount of such repayment at the rate provided in
Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax
attributable to Payments is determined to exceed the amount taken into
account hereunder at the time of
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the termination of Executive's employment (including by reason of any
payment the existence or amount of which cannot be determined at the time
of the Gross-Up Payment), the Company shall make an additional gross-up
payment in respect of such excess (plus any interest and/or penalties
payable by Executive with respect to such excess) at the time that the
amount of such excess is finally determined."
2. Miscellaneous Provisions.
(a) The Employment Agreement is hereby, and shall henceforth
be deemed to be, amended, modified, and supplemented in accordance with the
provisions hereof, and the respective rights, duties, and obligations under the
Employment Agreement shall hereinafter be determined and enforced under the
Employment Agreement, as amended, subject in all respects to such amendments,
modifications, and supplements, and all terms and conditions of this Amendment.
(b) Except as expressly set forth in this Amendment, all
agreements, covenants, undertakings, provisions, stipulations, and promises
contained in the Employment Agreement are hereby ratified, readopted, approved,
and confirmed and remain in full force and effect.
(c) Except as provided by this Amendment, or unless the
context or use indicates another or different meaning or intent, the words and
terms used in this Amendment shall have the same meaning as in the Employment
Agreement.
(d) This Amendment may be executed in two or more
counterparts, each of which when so executed, shall be deemed an original, but
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
GAYLORD ENTERTAINMENT COMPANY
By: /s/ Colin V. Reed
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Its: Chief Executive Officer
EXECUTIVE:
/s/ Mark Fioravanti
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Mark Fioravanti
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