EXHIBIT 10.4
GAYLORD ENTERTAINMENT COMPANY
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") is made and
entered into as of this ____ day of ____________, 200_ (the "Grant Date"), by
and between Gaylord Entertainment Company, a Delaware corporation (together with
its Subsidiaries and Affiliates where applicable, the "Company"), and the person
whose name is set forth on the attached Optionee Grant Detail Statement (the
"Optionee"). Capitalized terms not otherwise defined herein shall have the
meaning ascribed to such terms in the Gaylord Entertainment Company 2006 Omnibus
Incentive Plan (the "Plan").
WHEREAS, the Company has adopted the Plan, which permits the issuance of
stock options for the purchase of shares of the common stock, par value $0.01
per share, of Gaylord Entertainment Company (the "Shares"); and
WHEREAS, the Company desires to afford the Optionee an opportunity to
purchase Shares as hereinafter provided in accordance with the provisions of the
Plan;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Grant of Option.
(a) The Company grants as of the date of this Agreement the right and
option (the "Option") to purchase any or all of the Shares (the "Option Stock")
set forth on the attached Optionee Grant Detail Statement, at an exercise price
also set forth on the Optionee Grant Detail Statement, on the terms and
conditions set forth in this Agreement and subject to all provisions of the
Plan. The Optionee, holder or beneficiary of the Option shall not have any of
the rights of a shareholder with respect to the Option Stock until such person
has become a holder of such Shares by the due exercise of the Option and payment
of the Option Payment (as defined in Section 3 below) in accordance with this
Agreement.
(b) The Option shall be a non-qualified stock option. In order to
provide the Company with the opportunity to claim the benefit of any income tax
deduction which may be available to it upon the exercise of the Option, and in
order to comply with all applicable federal or state tax laws or regulations,
the Company may take such action as it deems appropriate to insure that, if
necessary, all applicable federal, state or other taxes are withheld or
collected from the Optionee.
2. Exercise of Option. Except as otherwise provided herein, your Option
shall become vested and exercisable in accordance with the Optionee Grant Detail
Statement attached hereto if and only if you have been continuously employed by
the Company or any of its Subsidiaries from the date of this Agreement through
and including the date of exercise. Notwithstanding the above, each outstanding
Option shall vest and become exercisable in full upon the event of Optionee's
death or Disability.
3. Manner of Exercise. The Option may be exercised in whole or in part at
any time within the period permitted hereunder for the exercise of the Option,
with respect to whole Shares only, by serving written notice of intent to
exercise the Option delivered to the Company at its principal office (or to the
Company's designated agent), stating the number of Shares to be purchased, the
person or persons in whose name the Shares are to be registered and each such
person's address and social security number. Such notice shall not be effective
unless accompanied by payment in full of the Exercise Price for the number of
Shares with respect to which the Option is then being exercised (the "Option
Payment") and cash equal to the required withholding taxes as set forth by
Internal Revenue Service and applicable State tax guidelines for the employer's
minimum statutory withholding. The Option Payment shall be made in cash or cash
equivalents or in whole Shares that have been held by the Optionee for at least
six (6) months prior to the date of exercise valued at the Shares' Fair Market
Value on the date of exercise (or next succeeding trading date if the date of
exercise is not a trading date) or the actual sales price of such Shares,
together with any applicable withholding taxes, or by a combination of such cash
(or cash equivalents) and Shares. The Optionee shall not be entitled to tender
Shares pursuant to successive, substantially simultaneous exercises of the
Option or any other stock option of the Company. Subject to applicable
securities laws, the Optionee may also exercise the Option by delivering a
notice of exercise of the Option and by simultaneously selling the Shares of
Option Stock thereby acquired pursuant to a brokerage or similar agreement
approved in advance by proper officers of the Company, using the proceeds of
such sale as payment of the Option Payment, together with any applicable
withholding taxes.
4. Termination of Option. The Option will expire ten (10) years from the
date of grant of the Option (the "Term") with respect to any then unexercised
portion thereof, unless terminated earlier as set forth below:
(a) Termination by Death. If the Optionee's employment by the Company
terminates by reason of death, this Option may thereafter be exercised by the
legal representative of the estate or by the legatee of the Optionee under the
will of the Optionee, until the expiration of the Term of the Option.
(b) Termination by Reason of Disability. If the Optionee's employment
by the Company terminates by reason of Disability, this Option may thereafter be
exercised by the Optionee or personal representative or guardian of the
Optionee, as applicable, until the expiration of the Term of the Option.
(c) Termination by Normal Retirement or Early Retirement. If
Optionee's employment by the Company terminates by reason of Normal Retirement
or Early Retirement, this Option may thereafter be exercised, to the extent the
Option was exercisable at the time of such Retirement, by the Optionee, until
the expiration of the Term of the Option. "Early Retirement" means retirement by
an employee from active employment with the Company with the express written
consent of the Company on or after attaining age fifty-five (55). "Normal
Retirement" means retirement from active employment with the Company on or after
age sixty-five (65).
(d) Termination for Cause. If the Optionee's employment by the Company
is terminated for Cause, this Option shall terminate immediately and become void
and of no effect.
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(e) Other Termination. If the Optionee's employment by the Company is
terminated for any reason other than for Cause, death, Disability or Normal
Retirement or Early Retirement, this Option may be exercised, to the extent the
Option was exercisable at the time of such termination, by the Optionee for a
period of ninety (90) days from the date of such termination of employment or
the expiration of the Term of the Option, whichever period is the shorter.
5. No Right to Continued Employment. The grant of the Option shall not be
construed as giving Optionee the right to be retained in the employ of the
Company or its Subsidiaries, and the Company or its Subsidiaries may at any time
dismiss Optionee from employment, free from any liability or any claim under the
Plan.
6. Adjustment to Option Stock. The Committee shall make adjustments in the
terms and conditions of, and the criteria included in, this Option in
recognition of unusual or nonrecurring events (including, without limitation,
the events described in Section 4.2 of the Plan) affecting the Company or the
financial statements of the Company or of changes in applicable laws,
regulations or accounting principles, whenever the Committee determines that
such adjustments are appropriate in order to prevent dilution or enlargement of
the benefits or potential benefits intended to be made available under the Plan.
7. Amendments to Option. Subject to the restrictions contained in the Plan,
the Committee may waive any conditions or rights under, amend any terms of, or
alter, suspend, discontinue, cancel or terminate, the Option, prospectively or
retroactively; provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would adversely affect the
rights of the Optionee or any holder or beneficiary of the Option shall not to
that extent be effective without the consent of the Optionee, holder or
beneficiary affected.
8. Limited Transferability. During the Optionee's lifetime this Option can
be exercised only by the Optionee, except as otherwise provided in Section 4(a)
above or in this Section 8. This Option may not be assigned, alienated, pledged,
attached, sold or otherwise transferred or encumbered by Optionee other than (i)
to a Permitted Transferee or (ii) by will or the laws of descent and
distribution. Any attempt to otherwise transfer this Option shall be void. No
transfer of this Option by the Optionee by will or by laws of descent and
distribution shall be effective to bind the Company unless the Company shall
have been furnished with written notice thereof and an authenticated copy of the
will and/or such other evidence as the Committee may deem necessary or
appropriate to establish the validity of the transfer. Any transfer of this
Option by the Optionee to a Permitted Transferee must be for no consideration
and, after the transfer, the Permitted Transferee shall have the sole
responsibility for determining whether and when to exercise the Option. A
Permitted Transferee may not transfer any such Option other than by will or the
laws of descent and distribution. For purpose of this Agreement, "Permitted
Transferee" means the Optionee's Immediate Family, a Permitted Trust or a
partnership of which the only partners are members of the Optionee's Immediate
Family. For purpose of this Agreement, "Immediate Family" means the Optionee's
children and grandchildren, including adopted children and grandchildren,
stepchildren, parents, stepparents, grandparents, spouse, former spouse (but in
such case only at the direction of a court order), siblings (including half
brothers and sisters), father-in-law, mother-in-law, daughters-in-law and
sons-in-law. For
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purposes of this Agreement, a "Permitted Trust" means a trust solely for the
benefit of the Optionee or Optionee's Immediate Family.
9. Reservation of Shares. At all times during the term of this Option, the
Company shall use its best efforts to reserve and keep available such number of
Shares as shall be sufficient to satisfy the requirements of this Agreement.
10. Plan Governs. The Optionee hereby acknowledges receipt of a copy of the
Plan and agrees to be bound by all the terms and provisions thereof. The terms
of this Agreement are governed by the terms of the Plan, and in the case of any
inconsistency between the terms of this Agreement and the terms of the Plan, the
terms of the Plan shall govern. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to in the Plan.
11. Severability. If any provision of this Agreement is, or becomes, or is
deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any
Person or the Award, or would disqualify the Plan or Award under any laws deemed
applicable by the Committee, such provision shall be construed or deemed amended
to conform to the applicable laws, or if it cannot be construed or deemed
amended without, in the determination of the Committee, materially altering the
intent of the Plan or the Award, such provision shall be stricken as to such
jurisdiction, Person or Award, and the remainder of the Plan and Award shall
remain in full force and effect.
12. Notices. All notices required to be given under this Option shall be
deemed to be received if delivered or mailed as provided for herein to the
parties at the following addresses, or to such other address as either party may
provide in writing from time to time.
To the Company: Gaylord Entertainment Company
One Gaylord Drive
Nashville, Tennessee 37214
Attn: Carter R. Todd, Senior Vice President
To the Optionee: The address then maintained with respect to the
Optionee in the Company's records.
13. Governing Law. The validity, construction and effect of this Agreement
shall be determined in accordance with the laws of the State of Delaware without
giving effect to conflicts of laws principles.
14. Resolution of Disputes. Any dispute or disagreement which may arise
under, or as a result of, or in any way related to, the interpretation,
construction or application of this Agreement shall be determined by the
Committee. Any determination made hereunder shall be final, binding and
conclusive on the Optionee and the Company for all purposes.
15. Successors in Interest. This Agreement shall inure to the benefit of
and be binding upon any successor to the Company. This Agreement shall inure to
the benefit of the Optionee's legal representative and assignees. All
obligations imposed upon the Optionee and all rights granted to the Company
under this Agreement shall be binding upon the Optionee's heirs, executors,
administrators, successors and assignees.
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IN WITNESS WHEREOF, the parties have caused this Non-Qualified Stock Option
Agreement to be duly executed effective as of the day and year first above
written.
GAYLORD ENTERTAINMENT COMPANY
By:
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Carter R. Todd, Senior Vice President
Optionee:
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Print Name
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Signature
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