Form of Performance-Based Restricted Shares Agreement (2024)

This Agreement evidences an award of performance-based Restricted Shares in the number set forth on the cover sheet and subject to the terms and conditions set forth in this Agreement, the Plan and on the cover sheet (the “Target Shares”).

 

To the extent not yet vested, the Target Shares may not be sold, assigned, transferred, pledged, hypothecated, or otherwise encumbered, whether by operation of law or otherwise, nor may the Target Shares be made subject to execution, attachment, or similar process. If you attempt to do any of these things, you will immediately and automatically forfeit your Target Shares and your right to receive any Additional Shares (as defined below).

The Company will issue your Target Shares in the name set forth on the cover sheet.

The issuance of the Target Shares will be evidenced in such a manner as the Committee, in its sole discretion, deems appropriate, including book-entry or direct registration (including transaction advices) or the issuance of one or more share certificates, with the understanding that any ownership of Shares is mandatorily registered in the Company’s shareholder register. Any unvested Target Shares shall bear the appropriate restrictions imposed by this Agreement. As your interest in the Target Shares vests, the recordation of the number of Target Shares attributable to you will be appropriately modified if necessary.

You will vest in the number of Shares, if any, that become earned during the period commencing on January 1, 2024 (the “Commencement Date”) and ending on December 31, 2026 (the “Performance Period”), as determined by the Committee, in its sole discretion, based on the level of achievement of the applicable performance goals in accordance with Exhibit A attached hereto, subject to your continued Service through the Certification Date (as defined below). The number of Relative TSR Shares (as defined in Exhibit A) that may become vested will range from zero to two hundred percent (200%) of the Relative TSR Shares, and the number of CAGR Stock Price Growth Shares (as defined in Exhibit A) that may become vested will range from zero to one hundred percent (100%), in each case as determined by the Committee. If greater than 100% of the Relative TSR Shares become vested, then the number of additional Shares that become vested (the “Additional Shares”) will be issued to you on the date on which the Committee certifies the level of achievement of the applicable performance goals (the “Certification Date”). Any Shares that vest in accordance with this paragraph will be deemed to be vested on the Certification Date. Any Target Shares that do not vest pursuant to the terms of this paragraph or in connection with your termination of Service or a Change in Control, as described below, will be immediately and irrevocably forfeited, including the right to receive any dividends or other distributions on such Shares, on the Certification Date, the date of your termination of Service or the date of the Change in Control, as applicable.

Unless the termination of your Service triggers accelerated vesting of your Restricted Shares or other treatment pursuant to the terms of this Agreement or the Plan, you will immediately and automatically forfeit to the Company all of the unvested Target Shares, and your right to receive any Additional Shares will be immediately and automatically forfeited, in the event your Service terminates for any reason prior to the Certification Date.

Relative TSR Shares. With respect to the Relative TSR Shares, except as provided below in this paragraph, if, after the first anniversary of the Grant Date, the Company terminates your Service without Cause (as defined below), your Service terminates due to your death or Disability, or you terminate your Service for Good Reason (as defined below) (such termination, a “Qualified Termination”), then you will become vested in the number of Relative TSR Shares, if any, and you will be issued the number of Additional Shares, if any, determined by the Committee following the end of the Performance Period based on the level of achievement of the applicable performance goals during the Performance Period, in each case on a pro rata basis, determined based on the quotient obtained by dividing (i) the sum of (A) number of days of Service completed by you from the Commencement Date to the date of your termination of Service plus (B) the lesser of 365 days and the number of days that remain in the Performance Period, by (ii) the total number of days in the Performance Period. Notwithstanding the foregoing, if your Qualified Termination occurs during the Performance Period and within twenty-four (24) months after a Change in Control in which the Restricted Shares are assumed by the acquirer

or surviving entity in the Change in Control transaction, then you will become fully vested in the number of Relative TSR Shares, if any, and you will be issued the number of Additional Shares, if any, determined by the Committee following the end of the Performance Period based on the level of achievement of the applicable performance goals during the Performance Period. For the avoidance of doubt, if the Relative TSR Shares remain eligible to vest following your Qualified Termination in accordance with this paragraph, then the Relative TSR Shares shall remain outstanding following your Qualified Termination through the date on which the Committee determines the level of achievement of the applicable performance goals following the end of the Performance Period, and any such Relative TSR Shares that do not vest on the Certification Date, as determined by the Committee, shall be immediately and automatically forfeited.

CAGR Stock Price Growth Shares. With respect to the CAGR Stock Price Growth Shares, except as provided below in this paragraph, if, after the first anniversary of the Grant Date, your Service terminates as a result of a Qualifying Termination, then you will become vested in any CAGR Stock Price Growth Shares that have become earned as of your date of termination, if any, based on the achievement of the applicable performance goals, on a pro rata basis, determined based on the quotient obtained by dividing (i) the sum of (A) number of days of Service completed by you from the Commencement Date to the date of your termination of Service plus (B) the lesser of 365 days and the number of days that remain in the Performance Period, by (ii) the total number of days in the Performance Period. Notwithstanding the foregoing, if your Qualified Termination occurs during the Performance Period and within twenty-four (24) months after a Change in Control in which the Restricted Shares are assumed by the acquirer or surviving entity in the Change in Control transaction, then you will become fully vested in the number of CAGR Stock Price Growth Shares that have become earned as of your date of termination, if any, based on the achievement of the applicable performance goals. For the avoidance of doubt, (i) no CAGR Stock Price Growth Shares may become earned in respect of performance that occurs after the date of your Qualified Termination, and (ii) any CAGR Stock Price Growth Shares that do not vest in connection with your Qualified Termination in accordance with this paragraph shall be immediately and automatically forfeited on the date of your Qualified Termination.

Change in Control in which the Restricted Shares not Assumed.

If, during the Performance Period, a Change in Control occurs while you are an Employee, and the Restricted Shares are not assumed by the acquirer or surviving entity in the Change in Control transaction, then, if at least half of the Performance Period has elapsed as of the date of the Change in Control, you will become fully vested in the number of Target Shares, if any, and you will be issued the number of Additional Shares, if any, determined by the Committee based on the level of achievement of the applicable performance goals or, if greater, the number of Target Shares based on target level of achievement, in each case, measured as of the date of the Change in Control in accordance with Exhibit A attached hereto. Any Restricted Shares that do not

become earned based on actual performance measured as of the date of the Change in Control shall be forfeited as of such date. If, during the Performance Period, a Change in Control occurs while you are an Employee, and the Restricted Shares are not assumed by the acquirer or surviving entity in the Change in Control transaction, then, if less than half of the Performance Period has elapsed as of the date of the Change in Control, you will become fully vested in the number of Target Shares based on target level of achievement, measured as of the date of the Change in Control.

If, following the end of the Performance Period and prior to the Certification Date, the Company terminates your Service for Cause, your rights to all of the unvested Target Shares will be immediately and automatically forfeited, including the right to receive any dividends or other distributions on such Shares, and your right to receive any Additional Shares will be immediately and automatically forfeited.

   

For purposes of this Agreement, the term “Cause” will mean any of the following: (i) your conviction of, or the entry of a plea of guilty, first offender probation before judgment or nolo contendere by you to, any felony or any other crime involving dishonesty; (ii) fraud, misappropriation, embezzlement or breach of fiduciary duty by you with respect to the Company or any Affiliate; (iii) your willful failure, bad faith or gross negligence in the performance of your assigned duties for the Company or any Affiliate following your receipt of written notice of such willful failure, bad faith or gross negligence; (iv) your failure to follow reasonable and lawful directives of the Company or any Affiliate following your receipt of written notice of such failure; (v) any act or omission by you that the Committee reasonably determines to be likely to have a material adverse impact on the Company’s or any Affiliate’s business or reputation for honesty and fair dealing; other than an act or failure to act by you acting reasonably, in good faith and without reason to believe that such act or failure to act would adversely impact the Company’s or any Affiliate’s business or reputation for honesty and fair dealing; (vi) your material breach of the written employment policies and code of conduct to which you are subject, including, but not limited to, polices against discrimination or harassment; or (vii) your breach of any material term of this Agreement following your receipt of written notice of such breach. The Company or an Affiliate will provide you a period of thirty (30) days following receipt of any written Cause notification in order to allow you the opportunity to effectuate a cure of the acts or omissions that form the basis for the determination, but only to the extent such acts or omissions are capable of cure.

For purposes of this Agreement, the term “Good Reason” will mean any of the following, without your written consent: (i) the assignment to you of substantial duties or responsibilities materially inconsistent with your position at the Company or the Affiliate that is your employer or any other action by the Company or such Affiliate which results in a substantial diminution of your duties or responsibilities as a

senior executive of the Company or such Affiliate (for the avoidance of doubt, if you are removed from your position at the Company or any Affiliate, such removal or resignation shall not constitute a basis for purposes of this Agreement as a resignation for Good Reason); or (ii) a material reduction in your base salary. You may terminate your employment at any time for Good Reason, upon sixty (60) days’ written notice by you to the Company or the Affiliate that is your employer. You may not terminate your employment for Good Reason hereunder unless and until you have provided the Company or the Affiliate that is your employer with written notice of the action which you contend to be Good Reason (which notice must specify that such action constitutes the basis for a “Good Reason” resignation hereunder), such written notice is provided within sixty (60) days of the occurrence of the event which you contend to be Good Reason and the Company or such Affiliate has failed to reasonably remedy such action within thirty (30) days of receiving such written notice.

Notwithstanding anything contained herein to the contrary, if you have an employment agreement with the Company or any Affiliate, the terms Cause and Good Reason will have the meanings set forth in such employment agreement.

You acknowledge that you may be furnished or may otherwise receive or have access to confidential information which relates to the Company’s or an Affiliate’s past, present or future business activities, strategies, services or products, research and development; financial analysis and data; improvements, inventions, processes, techniques, designs or other technical data; profit margins and other financial information; fee arrangements; terms and contents of leases, asset management agreements and other contracts; tenant and vendor lists or other compilations for marketing or development; confidential personnel information (e.g., medical records, organizational charts, personnel files, and similar confidential information); or other information regarding administrative, management, financial, marketing, leasing or sales activities of the Company or any Affiliate or of a third party which provided proprietary information to either or both on a confidential basis. All such information, including any materials or documents containing such information, shall be considered by the Company, the Affiliates and you as proprietary and confidential information of the Company and the Affiliates (the “Proprietary Information”).

Notwithstanding the foregoing, Proprietary Information shall not include (i) information disseminated by the Company or any Affiliate on a non-confidential basis to third parties in the ordinary course of business; (ii) information in the public domain not as a result of a breach of any duty by you or any other person; or (iii) information that the Company or any Affiliate, as the case may be, does not consider confidential.

Both during your employment with the Company and the Affiliates and after the termination of your employment for any reason (the “Nondisclosure Restricted Period”), you shall preserve and protect the confidentiality of the Proprietary Information and all physical forms thereof, whether disclosed to you before this Agreement is signed or afterward. In addition, you shall not (i) disclose or disseminate the Proprietary Information to any third party, including employees of the Company or any Affiliate without a legitimate business need to know; (ii) remove the Proprietary Information from the Company’s or any Affiliate’s premises without a valid business purpose; or (iii) use the Proprietary Information for your own benefit or for the benefit of any third party, in each of the foregoing cases during the Nondisclosure Restricted Period.

Notwithstanding any other provision of this Agreement, you shall not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that: (A) is made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (2) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.

Notwithstanding any other provision of this Agreement, if you file a lawsuit for retaliation by the Company for reporting a suspected violation of law, you may disclose the Company’s trade secrets to your attorney and use the trade secret information in the court proceeding if you: (A) file any document containing the trade secret under seal; and (B) do not disclose the trade secret, except pursuant to court order.

Likewise, nothing herein prohibits you from disclosing information that may not be prohibited from disclosure by private agreement. For example, you may disclose, without violating the terms of this Agreement, Proprietary Information that you are specifically required by court order, subpoena, or law to disclose, but you agree to disclose only that portion of Proprietary Information that is legally required to be disclosed. You further understand and acknowledge that nothing in this Agreement prohibits you from reporting possible violations of federal or state law or regulation to any governmental agency or entity or self-regulatory organization (including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General), cooperating with any such governmental agency or entity or self-regulatory organization in connection with any such possible violation, or making other disclosures or taking other actions (including, without limitation, receiving any whistleblower award provided for under such laws or

regulations) that are protected under the whistleblower provisions of federal or state law or regulation, in each case without any notice to or authorization from the Company. Additionally, no provision in this Agreement is intended to interfere with or restrain employee communications regarding wages, hours, or other terms and conditions of employment or to otherwise interfere with rights that you may have under the National Labor Relations Act.

You acknowledge that all the Proprietary Information pre-existing, used or generated during the course of your employment by the Company and the Affiliates is the property of the Company and the Affiliates, as the case may be, and you hold and use such as a trustee for the Company or the Affiliates and subject to the Company’s and the Affiliates’ sole control. You shall deliver to the Company or the Affiliates, as applicable, all documents and other tangibles (including diskettes and other storage media) containing the Proprietary Information (x) at any time upon request by the Board or the applicable Affiliate during your employment and (y) immediately upon termination of your employment.

The following definitions shall apply for the purpose of this Section:

“Competing Business” shall mean (a) acting as an owner or a lessee of all-inclusive beachfront resorts and hotels located in the Restricted Area; or (b) asset or operational management for all-inclusive beachfront resorts and hotels located in the Restricted Area. Notwithstanding any provision to the contrary in this Agreement, Competing Business shall exclude: your ownership of five percent (5%) or less of the outstanding stock of any publicly traded corporation or other entity; or of an equity interest in any other entity approved by the Board and listed on Exhibit B attached hereto; or your service on the Board of Directors of any Affiliate.

“Customer” shall mean any hotel, conference center, lodging business, or real estate investment trust with which the Company or any Affiliate had, during the last two (2) years of your employment with the Company or any Affiliate, an existing lease, sublease, or management contract and you had business contact with such entity or gained Proprietary Information regarding such entity during your employment.

“Prospective Customer” shall mean any person or entity to whom the Company or any Affiliate sent or delivered a written sales or servicing proposal, quote, or contract, or with whom the Company or any Affiliate had business contact for the purpose of developing that person or entity into a customer of the Company or an Affiliate, in either case where you had business contact with such person or entity or you gained Proprietary Information regarding such person or entity during your employment with the Company or any Affiliate.

“Restricted Area” shall mean within Mexico, Jamaica, the Dominican Republic and any other geographic area included in the Company’s and any Affiliate’s business plans during your employment with the Company and the Affiliates.

“Restricted Period” shall mean the period of your employment with the Company or any Affiliate and a period of twelve (12) months following the expiration, resignation or termination of your employment. Notwithstanding the foregoing, if you have an employment agreement with the Company or any Affiliate, the term Restricted Period will have the meaning set forth in such employment agreement.

“Solicit” shall mean to knowingly solicit, call upon, or initiate communications or contacts with a person or entity for the purpose of developing or continuing a business relationship.

During the Restricted Period, you shall not engage, directly or indirectly, either individually or through another person or entity, whether as an owner, employee, consultant, partner, principal, agent, representative, stockholder or otherwise, of, in, to or for any Competing Business.

During the Restricted Period, you shall not Solicit, directly or indirectly, on your own behalf or on behalf of any other person(s), any Customer or Prospective Customer of the Company or any Affiliate (a) for any line of business that the Company or any Affiliate conducts or plans to conduct as of the date of your termination of employment; or (b) attempt to cause such Customer or Prospective Customer to diminish or materially alter its relationship (or prospective relationship) with the Company.

During the Restricted Period, you shall not, directly or indirectly, solicit or employ or cause any person or entity, other than an Affiliate, to solicit or employ any person who is then or was at any time during the two (2)-year period prior to your termination as an employee of the Company or any of its Affiliates and who is at the time of such solicitation or attempted hiring a director, vice president, senior vice president, executive vice president or similar position of the Company or any of the Affiliates, provided that it is not a violation of this sentence to make general solicitations for employment not directed at employees of the Company or any Affiliate.

You acknowledge that you will acquire much Proprietary Information concerning the past, present and future business of the Company and the Affiliates as the result of your employment with the Company and the Affiliates, as well as access to the relationships between the Company and the Affiliates and their respective clients and employees. You further acknowledge that the business of the Company and the Affiliates is very competitive and that competition by you in that business during your employment and the Restricted Period would irreparably injure the Company and the Affiliates, as the case may be. You understand that the restrictions contained in this Agreement are reasonable and are required for the Company’s and the Affiliates’ legitimate protection, and do not unduly limit your ability to earn a livelihood.

If any court or arbitrator determines that any provision of this Section is invalid or unenforceable as written, it shall be construed by limiting and reducing it to be enforceable to the maximum extent compatible with applicable law. In case such provision may not be made enforceable in such manner, this Section shall be construed as if such provision had never been contained herein, and the remainder of this Section shall not thereby be affected and shall be given full effect, without regard to the invalid portion.

Notwithstanding any arbitration provisions contained in any employment agreement you may have with the Company or its Affiliates, the Company and its Affiliates shall have the right and remedy (in addition to any other remedies that the Company and its Affiliates may have) to have the provisions of this Section specifically enforced by a court of competent jurisdiction without any requirement to post a bond or to first seek a remedy through arbitration, including by temporary or permanent injunction, it being acknowledged and agreed that any such violation may cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company. The Company shall also have the right to seek damages for any breach of this Section.

The Company and its successors and assigns may enforce these restrictive covenants.

Under Section 83 of the Code, the Fair Market Value of the Shares issued to you hereunder on the date any forfeiture restrictions applicable to such Shares lapse will be reportable as ordinary income at that time. For this purpose, “forfeiture restrictions” include the forfeiture as to unvested Target Shares described above. You may elect to be taxed at the time the Target Shares are granted, rather than when such Shares cease to be subject to such forfeiture restrictions, by filing an election under Section 83(b) of the Code with the Internal Revenue Service within thirty (30) days after the Grant Date on the cover sheet of this Agreement. If you are eligible to file an election and elect to do so, you will have to make a tax payment on the Fair Market Value of the Target Shares on the Grant Date. The form for making this election is attached as Exhibit C hereto. Failure to make this filing within the applicable thirty (30)-day period will result in the recognition of ordinary income by you as the forfeiture restrictions lapse.

For purposes of this Agreement, your Service does not terminate when you go on a bona fide leave of absence that was approved by your employer in writing if the terms of the leave provide for continued Service crediting, or when continued Service crediting is required by Applicable Laws. Your Service terminates in any event when the approved leave ends unless you immediately return to active work.

Your employer may determine, in its discretion, which leaves count for this purpose and when your Service terminates for all purposes under the Plan in accordance with the provisions of the Plan. Notwithstanding the foregoing, the Company may determine, in its discretion, that a leave counts for this purpose even if your employer does not agree.

You agree as a condition of this grant of Restricted Shares that you will make acceptable arrangements to pay any withholding or other taxes that may be due as a result of the vesting or the receipt of the Shares issued to you hereunder. In the event that the Company or any Affiliate determines that any federal, state, local or foreign tax or withholding payment is required relating to the Restricted Shares, the Company or any Affiliate will have the right to require such payments from you or withhold such amounts from other payments due to you from the Company or any Affiliate, or withhold the delivery of vested Shares otherwise deliverable under this Agreement. You may elect to satisfy such obligations, in whole or in part, (i) by causing the Company or any Affiliate to withhold Shares otherwise issuable to you or (ii) by delivering to the Company or any Affiliate Shares already owned by you. The Shares so delivered by you shall have an aggregate Fair Market Value equal to such withholding obligations. The maximum number of Shares that may be withheld to satisfy any applicable tax withholding obligations arising from the vesting of the Restricted Shares may not exceed such number of Shares having a Fair Market Value equal to the maximum statutory amount required by the Company to be withheld and paid to any federal, state, local or foreign taxing authority with respect to such vesting of the Restricted Shares.

This Agreement and the grant of Restricted Shares evidenced by this Agreement do not give you the right to be retained by the Company or any Affiliate in any capacity. The Company or an Affiliate, as applicable, reserves the right to terminate your Service at any time and for any reason.

You have the right to vote the Target Shares and to receive any dividends declared or paid on such Shares as set forth below.  All dividends and other distributions paid with respect to the Target Shares (whether in cash, property or Shares) prior to the date the Target Shares vest will be held by the Company until payable or forfeited pursuant to this paragraph. Such dividends and other distributions will be subject to the same restrictions on transferability and vesting as the Target Shares with respect to which they were paid and will, to the extent vested, be paid, without interest, and less any applicable withholding

taxes, within thirty (30) days after, and to the extent, the underlying Target Shares become vested and freed of restrictions. To the extent that the Target Shares are forfeited prior to vesting, the right to receive such dividends and other distributions will also be forfeited. Dividends and other distributions will only be paid with respect to any Additional Shares issued to you hereunder beginning on the date of such issuance.

 

Your Restricted Shares grant shall be subject to the terms of any applicable agreement of merger, liquidation, or reorganization in the event the Company is subject to such corporate activity, consistent with Section 17 of the Plan.

If and to the extent that the Restricted Shares are represented by certificates rather than book-entry, all certificates representing the Restricted Shares issued under this grant shall, where applicable, have endorsed thereon the following legends:

“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN VESTING, FORFEITURE, AND OTHER RESTRICTIONS ON TRANSFER SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER, OR HIS OR HER PREDECESSOR IN INTEREST. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY BY THE HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS CERTIFICATE.”

To the extent that ownership of the Restricted Shares is evidenced by a book-entry registration or direct registration (including transaction advices), such registration, to the extent not held through a depositary, shall contain an appropriate legend or restriction similar to the foregoing.

This Agreement will be interpreted and enforced under the laws of the State of Delaware, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive laws of any other jurisdiction, including but not limited to the granting and/or issuance of Shares being governed by Dutch law.

The text of the Plan is incorporated in this Agreement by reference.

  

This Agreement, the Plan and your employment agreement (if applicable) constitute the entire understanding between you and the Company regarding the Restricted Shares. Any prior agreements, commitments, or negotiations concerning the Restricted Shares are superseded; except that any written employment, consulting, confidentiality, non-competition, non-solicitation, and/or severance agreement between you and the Company or any Affiliate, as applicable, shall supersede this Agreement with respect to its subject matter.

 

The grant of Restricted Shares under this Agreement is intended to comply with Code Section 409A (“Section 409A”) to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement will be interpreted and administered to be in compliance with Section 409A. Notwithstanding anything to the contrary in the Plan or this Agreement, neither the Company, its Affiliates, the Board, nor the Committee will have any obligation to take any action to prevent the assessment of any excise tax or penalty on you under Section 409A, and neither the Company, its Affiliates, the Board, nor the Committee will have any liability to you for such tax or penalty.