EXHIBIT 10.1
AMENDMENT NO. 2 TO
COLIN V. REED
EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment No. 2 to Executive Employment Agreement, dated as of
February 10, 2006 (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 Colin V. Reed, 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 Executive
Employment Agreement dated as of April 23, 2001 (the "Employment Agreement"),
pursuant to which, among other things, the Company hired the Executive to be its
Chief Executive Officer;
WHEREAS, the Company and Executive amended the Employment Agreement on
August 17, 2004, to extend the term of the Employment Agreement and to make
other changes to the terms of the Employment Agreement;
WHEREAS, the Company and Executive agree that changes to the Employment
Agreement are required in light of the enactment of Internal Revenue Code
Section 409A;
WHEREAS, it was always intended that the SERP Benefit would only be
payable upon a termination of employment;
NOW, THEREFORE, in consideration of the covenants and agreements
hereafter set forth, the parties hereto agree as follows:
1. Amendment of Section 5(a) of Employment Agreement. The last two
sentences of the first paragraph and the phase "expiration of the term of this
Agreement" immediately preceding these sentences are deleted and replaced in
their entirety with the following:
"... Executive's termination of employment.
The Company will separately account for the portion of the
SERP Benefit earned and vested before 2005 ($1,875,000) together with
hypothetical investment earnings or losses thereon (the "Pre-409A SERP
Benefit"). 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
1
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 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, 2006 (or such later date as allowed under Code Section
409A and guidance thereto). If no election is made, or if the 409A SERP
Benefit first becomes payable in 2006, a lump-sum payment of the 409A
SERP Benefit will be made. Finally, 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).
2. Amendment to Section 5 to Comply With Code Section 409A. A new
Section 5(k) is added to the Employment Agreement as follows:
"Section 409A Compliance. Payments to Executive arising from
paragraphs 5(b), 5(d), 5(f), 5(h), and 5(j) of 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 subject to Code Section 409A, the payment
will 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)."
3. Amendment of Section 6(d) of Employment Agreement. The first
sentence of Section 6(d) of the Employment Agreement is deleted in its entirety
and replaced with the following new sentences:
"Distribution of Deferred Amounts. Amounts deferred pursuant
to this Section 6 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
2
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)."
4. Further Amendment to Comply With Code Section 409A. A new Section
17(k) is added to the Employment Agreement as follows:
"Section 409A Compliance. If Executive is a "specified employee" at
Executive's "separation of service" (as such phrases are defined under Code
Section 409A), then no payment or portion of any payment described in Sections 9
or 10 that was earned and vested after December 31, 2004, that is deferred
compensation subject to the requirements of Code Section 409A will be paid
during the first six (6) months following Executive's separation of service. In
addition, the Company will not accelerate the payment of any deferred
compensation if such acceleration would result in the imposition of penalties
and/or interest under Code Section 409A.
5. 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 (2) 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.
3
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/ Carter R. Todd
------------------
Its: Senior Vice President, General
Counsel and Secretary
EXECUTIVE:
/s/ Colin V. Reed
-----------------------
Colin V. Reed
4