exv10w3






Exhibit 10.3




SEVERANCE AGREEMENT




          THIS AGREEMENT, dated December 30, 2008 the “Effective Date”), is made by and between Starwood
Hotels and Resorts Worldwide, Inc., a Maryland corporation (the “Company”), and Matthew E. Avril
(the “Executive”).




          WHEREAS, the Executive is employed by the Company as President — Hotel Operations; and




          WHEREAS, the Company considers it essential to the best interests of its stockholders to
foster the continued employment of key management personnel; and




          WHEREAS, the Board recognizes that, as is the case with many publicly held corporations, the
possibility of a Change in Control exists and that such possibility, and the uncertainty and
questions which it may raise among management, may result in the departure or distraction of senior
management personnel to the detriment of the Company and its stockholders; and




          WHEREAS, the Board has determined that appropriate steps should be taken to reinforce and
encourage the continued attention and dedication of members of the Company’s senior management,
including the Executive, to their assigned duties without distraction in the face of potentially
disturbing circumstances arising from the possibility of a Change in Control; and




          WHEREAS, the Company and the Executive entered into an employment agreement (the “Original
Agreement”) dated August ___, 2008; and




          WHEREAS, the Company and the Executive hereby amend and restate the Original Agreement in its
entirety (the “Agreement”) in order to evidence documentary compliance with section 409A of
Code and the guidance thereunder (collectively “Section 409A”);




          NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Executive hereby agree as follows:




     1. Defined Terms. The definitions of capitalized terms used in this Agreement are
provided in Section 16 hereof.



     2. Term of Agreement. The Term of this Agreement shall commence on the Effective Date
and shall continue in effect through the third anniversary of the Effective Date; provided,
however, that on each anniversary of the Effective Date during the Term of this Agreement,
the Term shall automatically be extended for one additional year unless, not later than 90 days
prior to any such anniversary, the Company or the Executive shall have given notice not to extend
the Term; and further provided, however, that if a Change in Control or a
Potential Change in Control shall have occurred during the Term, the Term shall expire no earlier
than twenty-four (24)



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months beyond the month in which such Change in Control or a Potential Change in Control occurred.




     3. Company’s Covenants Summarized. In order to induce the Executive to remain in the
employ of the Company and in consideration of the Executive’s covenants set forth in Section 4
hereof, the Company agrees, under the conditions described herein, to pay the Executive the
Severance Payments and the other payments and benefits described herein. Except as provided in
Section 10 hereof, no Severance Payments shall be payable under this Agreement unless during the
Term there shall have been (or, under the terms of the second sentence of Section 6 hereof, there
shall be deemed to have been) a termination of the Executive’s employment with the Company
following a Change in Control. This Agreement shall not be construed as creating an express or
implied contract of employment and, except as otherwise agreed in writing between the Executive and
the Company, the Executive shall not have any right to be retained in the employ of the Company.



     4. The Executive’s Covenants. The Executive agrees that, subject to the terms and
conditions of this Agreement, in the event a Potential Change in Control occurs during the Term,
the Executive will remain in the employ of the Company until the earliest of (i) a date which is
six (6) months from the date of such Potential Change of Control, (ii) the date of a Change in
Control, (iii) the date of termination by the Executive of the Executive’s employment for Good
Reason or by reason of death, Disability or Retirement, or (iv) the termination by the Company of
the Executive’s employment for any reason.



     5. Compensation Other Than Severance Payments.



          a. Payment of Salary During Disability. Following a Change in Control and during the
Term, during any period that the Executive is unable to perform the Executive’s full-time duties
with the Company as a result of:





          (1) a period of 409A Disability, the Executive shall continue to receive his base
salary in accordance with the Company’s standard payroll practices at the rate in effect at
the commencement of any such period, together with any compensation payable to the
Executive under the Company’s short-term and long-term disability plans for salaried
employees during such period and any benefit coverages customarily provided to disabled
salaried employees, until the Executive’s employment is terminated on account of the
Executive’s General Disability; or




          (2) a period of General Disability, the Executive shall receive any compensation
payable to the Executive under the Company’s short-term and long-term disability plans for
salaried employees during such period, as well as any benefit coverages customarily
provided to disabled salaried employees, until the Executive’s employment is terminated on
account of the Executive’s General Disability.



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Thereafter the Executive’s benefits shall be determined under the Company’s retirement, insurance
and other compensation programs then in effect in accordance with the terms of such programs.




          b. Accrued Salary. If the Executive’s employment shall be terminated for any reason
following a Change in Control and during the Term, the Company shall pay to the Executive such
Executive’s full salary through the Date of Termination at the rate in effect immediately prior to
the Date of Termination or, if higher, the rate in effect immediately prior to the first occurrence
of an event or circumstance constituting Good Reason, together with all compensation and benefits
payable to the Executive through the Date of Termination under the terms of the Company’s
compensation and benefit plans, programs or arrangements as in effect immediately prior to the Date
of Termination or, if more favorable to the Executive, as in effect immediately prior to the first
occurrence of an event or circumstance constituting Good Reason.




          c. Post-Termination Benefits. If the Executive’s employment shall be terminated for
any reason following a Change in Control and during the Term, the Company shall pay to the
Executive the Executive’s normal post-termination compensation and benefits as such payments become
due. Such post-termination compensation and benefits shall be determined under, and paid in
accordance with, the Company’s retirement, insurance and other compensation or benefit plans,
programs and arrangements as in effect immediately prior to the Date of Termination or, if more
favorable to the Executive, as in effect immediately prior to the occurrence of the first event or
circumstance constituting Good Reason.




          d. Time of Payment. Upon termination of the Executive’s employment following a Change
in Control and during the Term, the Executive shall receive the payments or benefits to which he
may be entitled under Section 5(b) and 5(c) and which constitute deferred compensation subject to
Section 409A either (A) at the time when due hereunder, or (B) if a payment date sufficient to
satisfy Section 409A is not otherwise stated for such payment or benefit, on the date of
Executive’s termination of employment, except as provided in Section 14 below.




     6. Severance Payments.



          a. If the Executive’s employment is terminated following a Change in Control and during the
Term, other than (A) by the Company for Cause, (B) by reason of death or Disability, or (C) by the
Executive without Good Reason, then, the Company shall pay the Executive the amounts, and provide
the Executive the benefits, described in this Section 6 (“Severance Payments”) and Section 7, in
addition to any payments and benefits to which the Executive is entitled under Section 5 hereof.
For purposes of this Agreement, the Executive’s employment shall be deemed to have been terminated
following a Change in Control by the Company without Cause or by the Executive with Good Reason, if
(i) the Executive’s employment is terminated by the Company without Cause prior to a Change in
Control (whether or not a Change in Control ever occurs) and such termination was at the request or
direction of a Person who has entered into an
agreement with the Company the consummation of which




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would constitute a Change in Control (an
“Acquiring Person”), (ii) the Executive terminates his employment for Good Reason prior to a Change
in Control (whether or not a Change in Control ever occurs) and the circumstance or event which
constitutes Good Reason occurs at the request or direction of an Acquiring Person, or (iii) the
Executive’s employment is terminated by the Company without Cause or by the Executive for Good
Reason and such termination or the circumstance or event which constitutes Good Reason is otherwise
in connection with or in anticipation of a Change in Control (whether or not a Change in Control
ever occurs). For purposes of any determination regarding the applicability of the immediately
preceding sentence, any position taken by the Executive shall be presumed to be correct unless the
Company establishes to the Board by clear and convincing evidence that such position is not
correct.





          (1) Lump Sum Payment. In lieu of any further salary payments to the Executive
for periods subsequent to the Date of Termination and in lieu of any severance benefit
otherwise payable to the Executive under the terms of his offer letter from the Company,
the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two
times the sum of (i) the Executive’s base salary as in effect immediately prior to the Date
of Termination or, if higher, in effect immediately prior to the first occurrence of an
event or circumstance constituting Good Reason, and (ii) the average of the annual bonuses
earned by the Executive in the three fiscal years ending immediately prior to the fiscal
year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal
year in which occurs the first event or circumstance constituting Good Reason. For
purposes of the preceding sentence, in determining any bonus amount for any fiscal year,
bonuses paid with respect to any year in which employment of the Executive commenced shall
be annualized based on the number of days employed by the Company during such year. In the
event the date of the Executive’s termination of employment occurs on or within two years
following an event that constitutes a change in the ownership or effective control of the
Company or in the ownership of a substantial portion of the assets of the Company within
the meaning of section 409A(a)(2)(a)(vi) of the Code, such amount will be paid in a lump
sum within 30 days following the date of the Executive’s termination of employment, except
as set forth in Section 14 below; otherwise, such amount will be paid 53 days following the
date of the Executive’s termination of employment, except as provided by Section 14 below.




          (2) Continuation of Welfare Benefits. Subject to Paragraph 15 in the case of
any benefits that are not exempt from Section 409A, for the twenty-four (24) month period
immediately following the Date of Termination, the Company shall arrange to provide the
Executive and his dependents life, disability, and accident insurance benefits and other
benefits and perquisites (including employee stay rates) substantially similar to those
provided to the Executive and his dependents immediately prior to the Date of Termination
or, if more favorable to the Executive, those provided to the Executive and his dependents
immediately prior to the first occurrence of an event or circumstance



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constituting Good Reason, at no greater cost to the Executive than the cost to the
Executive immediately prior to such date or occurrence. Benefits otherwise receivable by
the Executive pursuant to this Section 6(a)(2) shall be reduced to the extent benefits of
the same type are received by the Executive from another employer during the twenty-four
(24) month period following the Executive’s termination of employment; provided,
however, that the Company shall reimburse the Executive for the excess, if any, of
the cost of such benefits to the Executive over such cost immediately prior to the Date of
Termination or, if more favorable to the Executive, the first occurrence of an event or
circumstance constituting Good Reason.




          (3) Health Benefits. For the twenty-four (24) month period immediately
following the Date of Termination, the Company shall arrange to provide the Executive with
group health coverage substantially similar to that which the Executive was receiving
immediately prior to the Notice of Termination. The premium charge to the Executive for
each month of such coverage will equal the Company’s monthly COBRA charge for such coverage
in which the Executive, his spouse and covered dependents (as applicable) is enrolled from
time to time (less the amount of any administrative charge typically assessed by the
Company as part of its COBRA charge) and the Executive will be required to pay such monthly
premium charge in accordance with the Company’s standard COBRA premium payment
requirements. The Company will pay Executive a lump sum in cash equal to an initial
multiple that is increased by a percentage. For this purpose, the initial multiple is 24
times the difference that results from calculating (i) the Company’s monthly COBRA charge
on the Date of Termination for family coverage with respect to the highest value health
coverage provided to salaried employees, minus (ii) the amount the Company charges active
salaried employees for such coverage on Executive’s Date of Termination. In addition, for
this purpose, the percentage is the sum of (I) 1% for each month in the 24-month period
that will fall in the calendar year following Executive’s Date of Termination, plus (II) 2%
for each month in the 24-month period that will fall in the second calendar year following
Executive’s Date of Termination. The Company will make such payment within 30 days
following the date of the Executive’s termination of employment, except as provided by
Section 14 below.




          (4) Incentive Compensation. Notwithstanding any provision of any annual or
long-term incentive plan to the contrary, the Company shall pay to the Executive in cash
the following amounts:




          (A) A lump sum equal to any unpaid incentive compensation which has been
allocated or awarded to the Executive for a completed fiscal year or other
measuring period preceding the Date of Termination under any such plan and which,
as of the Date of Termination, is contingent only upon the continued employment of
the Executive to a subsequent date, paid during the fiscal year of termination when
bonuses for such completed fiscal year are paid to senior executives
(but not later than 2-1/2 months after such completed fiscal



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year, except as
provided by Section 14 below; and




          (B) the value of each contingent incentive compensation award allocated or
awarded to the Executive for a then uncompleted period under any such plan that the
Executive would have earned on the last day of the performance award period,
assuming the achievement, at the target level, of the individual and corporate
performance goals established with respect to such award, paid in the year
following the end of such performance period when awards for such performance
period are paid to senior executives (but not later than 2-1/2 months after the end
of such performance period, except as provided by Section 14 below. Awards for
uncompleted periods shall be prorated based upon the number of days the Executive
is employed by the Company during such year.




          (5) Accelerated Vesting of Stock Options. All stock options and restricted
stock held by the Executive under any stock option or incentive plan maintained by the
Company (including the Company’s 2004 Long-Term Incentive Plans) shall immediately vest and
become exercisable as of the Date of Termination, to be exercised in accordance with the
terms of the applicable plan




          (6) Outplacement Services. The Company shall provide the Executive with
outplacement services suitable to the Executive’s position for a period of two (2) years
following the date of the Executive’s termination of employment or, if earlier, until the
first acceptance by the Executive of an offer of employment. The cost of such outplacement
services shall not exceed twenty percent (20%) of the Executive’s base salary in effect on
the Date of Termination.




          (7)  401(k) Contributions. The Company shall pay the Executive an amount
equal to the unvested portion (if any) of the Executive’s account balance under the
Company’s 401(k) Plan that is forfeited by reason of the Executive’s termination of
employment. Such payment shall be made within 30 days following the date of the Executive’s
termination of employment, except as provided by Section 14 below.



     7. 280G Cap.



          a. Notwithstanding any other provisions of this Agreement, in the event that any payment or
benefit received or to be received by the Executive in connection with a Change in Control or the
termination of the Executive’s employment (whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with the Company, any Person whose actions result in a Change
in Control or any Person affiliated with the Company or such Person) (all such payments and
benefits, including the Severance Payments, being hereinafter called “Total Payments”) would not be
deductible (in whole or part), by the Company, an affiliate or Person making such
payment or providing such benefit as a result of section 280G of the Code, then, the Total
Payments shall be reduced (with the cash Severance Payments being




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reduced first (if necessary, to
zero) in the order in which they appear in Section 6 above, and all other Severance Payments shall
thereafter be reduced (if necessary, to zero) in the order in which they appear in Section 6 above
provided that extended health benefits will be reduced last to the minimum extent necessary such
that, after deducting the amount of any Excise Tax imposed on such Total Payments (as so reduced)
from such Total Payments (as so reduced), the amount of the Total Payments (after such reduction)
will be greater if such reduction is made than it would be without such reduction. All
determinations, including the order and timing of any such reduction shall be determined by the
accounting firm which was, immediately prior to the Change in Control, the Company’s independent
auditor (the “Auditor”).




          b. For purposes of this limitation, (i) no portion of the Total Payments the receipt or
enjoyment of which the Executive shall have waived at such time and in such manner as not to
constitute a “payment” within the meaning of section 280G(b) of the Code shall be taken into
account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of
tax counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by the Auditor,
does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code,
including by reason of section 280G(b)(4)(A) of the Code and (iii) the value of any noncash benefit
or any deferred payment or benefit included in the Total Payments shall be determined by the
Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code.




     8. Termination Procedures and Compensation During Dispute.



          a. Notice of Termination. After a Change in Control and during the Term, any
purported termination of the Executive’s employment (other than by reason of death) shall be
communicated by written Notice of Termination from one party hereto to the other party hereto in
accordance with Section 12 hereof. For purposes of this Agreement, a “Notice of Termination” shall
mean a notice which shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provisions indicated. Further, a Notice of
Termination for Cause is required to include a copy of a resolution duly adopted by the affirmative
vote of not less than three-quarters (3/4) of the entire membership of the Board at a meeting of
the Board which was called and held for the purpose of considering such termination (after
reasonable notice to the Executive and an opportunity for the Executive, together with the
Executive’s counsel, to be heard before the Board) finding that, in the good faith opinion of the
Board, the Executive was guilty of conduct set forth in clause (i) or (ii) of the definition of
Cause herein, and specifying the particulars thereof in detail.




          b. Date of Termination. “Date of Termination,” with respect to any purported
termination of the Executive’s employment after a Change in Control and during the Term, shall mean
(1) if the Executive’s employment is terminated for
Disability, thirty (30) days after Notice of Termination is given (provided that the Executive
shall not have returned to the full-time performance of the Executive’s duties during such thirty
(30) day period), and (ii) if the Executive’s employment is terminated




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for any other reason, the
date specified in the Notice of Termination (which, in the case of a termination by the Company,
shall not be less than thirty (30) days (except in the case of a termination for Cause) and, in the
case of a termination by the Executive, shall not be less than fifteen (15) days nor more than
sixty (60) days, respectively, from the date such Notice of Termination is given).




          c. Dispute Concerning Termination. If the Executive reasonably believe in good faith
the Company is not providing the Executive with a benefit or payment to which the Executive is
entitled under the terms of this Agreement, the Executive may notify the Company, within forty-five
(45) days after the Date of Termination or, if any such payment or benefit is due after such 45-day
period, within 45 days following such payment date, that a dispute exists concerning the
termination and/or the amount of such payment or benefit. In this event, the Company shall act
within fifteen (15) days to restore fully the disputed benefits and payments (so that all benefits
and payments are provided as of such date as would have been provided had there been no delay in
providing such benefits and payments) and to continue to provide such benefits and payments as
contemplated by this Agreement thereafter (provided, however, that in all events any payment or
benefit shall not be paid or provided to the Executive before the payment date set forth in this
Agreement or any applicable document), but subject to termination and recapture from the Executive
of these disputed benefits and payments in accordance with the terms of a mutual written agreement
of the parties or by a final judgment, order or decree of an arbitrator or a court of competent
jurisdiction (which is not appealable or with respect to which the time for appeal therefrom has
expired and no appeal has been perfected).




     9. No Mitigation. The Company agrees that, if the Executive’s employment with the
Company terminated during the Term, the Executive is not required to seek other employment or to
attempt in any way to reduce any amounts payable to the Executive by the Company pursuant to
Section 6 hereof or Section 8(d) hereof. Further, the amount of any payment or benefit provided
for in this Agreement (other than Section 6(a)(2) hereof) shall not be reduced by any compensation
earned by the Executive as the result of employment by another employer, by retirement benefits, by
offset against any amount claimed to be owed by the Executive to the Company, or otherwise.



     10. Successors; Binding Agreement.



          a. In addition to any obligations imposed by law upon any successor to the Company, the
Company will require any successor (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle the Executive to terminate his employment
with the Company and receive compensation from the Company in the same amount and on the same
terms as the Executive would be entitled to hereunder if the Executive were to terminate the
Executive’s employment for Good Reason after a Change in




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Control, except that, for purposes of
implementing the foregoing, the date on which any such succession becomes effective shall be deemed
the Date of Termination.




          b. This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal
or legal representatives, executors, administrators, successors, heirs, distributees, devisees and
legatees. If the Executive shall die while any amount would still be payable to the Executive
hereunder (other than amounts which, by their terms, terminate upon the death of the Executive) if
the Executive had continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the executors, personal representatives or
administrators of the Executive’s estate.




     11. Indemnification. The Company shall indemnify and hold Executive harmless for acts
and omissions in his capacity as an officer, director or employee of the Company to the maximum
extent permitted under applicable law. The Company shall maintain a Director’s and Officer’s
Liability Insurance Policy, which shall provide liability coverage for Executive’s benefit, and the
Executive shall remain covered under such policy for a period of at least six (6) years following
the earlier of termination of employment or the occurrence of a Change in Control.



     12. Notices. For the purpose of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have been duly given when
delivered or mailed by United States registered mail, return receipt requested, postage prepaid,
addressed, if to the Executive, to the address inserted below the Executive’s signature on the
final page hereof and, if to the Company, to the address set forth below, or to such other address
as either party may have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon actual receipt:


To the Company:

Starwood Hotels and Resorts Worldwide, Inc.

1111 Westchester Avenue

White Plains, NY 10604

Attention: Chief Administrative Officer and General Counsel




     13. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing and signed by the
Executive and such officer as may be specifically designated by the Board. No waiver by either
party hereto at any time of any breach by the other party hereto of, or of any lack of compliance
with, any condition or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. This Agreement supersedes any other agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof which have been made by
either party; provided, however, that this Agreement shall supersede any agreement setting
forth the terms and conditions of the Executive’s employment with the Company only in the event
that the Executive’s employment with the Company is terminated on or following a Change in Control,
by the Company other than for Cause or by the



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Executive for Good Reason. The validity,
interpretation, construction and performance of this Agreement shall be governed by the laws of the
State of New York. All references to sections of the Exchange Act or the Code shall be deemed also
to refer to any successor provisions to such sections. Any payments provided for hereunder shall
be paid net of any applicable withholding required under federal, state or local law and any
additional withholding to which the Executive has agreed. The obligations of the Company and the
Executive under this Agreement which by their nature may require either partial or total
performance after the expiration of the Term (including, without limitation, those under Sections
6, 7, 8, and 9 hereof) shall survive such expiration.




     14. Code Section 409A. This Agreement will be construed and administered to preserve
the exemption from Section 409A of payments that qualify as short-term deferrals pursuant to Treas.
Reg. §1.409A-1(b)(4) or that qualify for the two-times compensation exemption of Treas. Reg.
§1.409A-1(b)(9)(iii). With respect to any amounts that are subject to Section 409A, it is
intended, and this Agreement will be so construed, that such amounts and the Company’s and the
Executive’s exercise of authority or discretion hereunder shall comply with the provisions of
Section 409A so as not to subject the Executive to the payment of interest and additional tax that
may be imposed under Section 409A. For purposes of any payment in this Agreement that is subject
to Section 409A and triggered by the Executive’s “termination of employment”, (i) “termination of
employment” shall have the same meaning as “separation from service” under Section 409A(a)(2)(A)(i)
of the Code, and (ii) in the event the Executive is a “specified employee” on the date of the
Executive’s termination of employment (with such status determined by the Company in accordance
with rules established by the Company in writing in advance of the “specified employee
identification date” that relates to the date of the Executive’s termination of employment or, if
later, by December 31, 2008, or in the absence of such rules established by the Company, under the
default rules for identifying specified employees under Section 409A), any payment that is subject
to Section 409A, such payment shall not be paid earlier than six months after such termination of
employment (if the Executive dies after the date of the Executive’s termination of employment but
before any payment has been made, such remaining payments that were or could have been delayed will
be paid to the Executive’s estate without regard to such six-month delay). The Executive
acknowledges and agrees that the Company has made no representation to the Executive as to the tax
treatment of the compensation and benefits provided pursuant to this Agreement and that the
Executive is solely responsible for all taxes due with respect to such compensation and benefits.



     15. Expense Reimbursements. To the extent that any expense reimbursement provided for
by this Agreement does not qualify for exclusion from Federal income taxation, except as specified
otherwise in this Agreement, the Company will make the reimbursement only if the Executive incurs
the corresponding expense during the term of this Agreement and submits the request for
reimbursement no later than two months prior to the last day of the calendar year following
the calendar year in which the expense was incurred so that the Company can (and it thereby will)
make the reimbursement on or before the last day of the calendar year following the calendar year
in which the expense was incurred. In the case of any such expense reimbursement and




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any in-kind benefit provided for by this Agreement that does not qualify for exclusion from Federal
income taxation, the amount of expenses eligible for such reimbursement (and the amount of in-kind
benefits provided) during a calendar year will not affect the amount of expenses eligible for such
reimbursement (or benefits provided) in another calendar year; and the right to such reimbursement
or in-kind benefit is not subject to liquidation or exchange for another benefit from the Company.




     16. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the same
instrument.



     17. Settlement of Disputes: Arbitration.



          a. All claims by the Executive for benefits under this Agreement shall be directed to and
determined by the Board and shall be in writing. Any denial by the Board of a claim for benefits
under this Agreement shall be delivered to the Executive in writing and shall set forth the
specific reasons for the denial and the specific provisions of this Agreement relied upon. The
Board shall afford a reasonable opportunity to the Executive for a review of the decision denying a
claim and shall further allow the Executive to appeal to the Board a decision of the Board within
sixty (60) days after notification by the Board that the Executive’s claim has been denied.




          b. Any further dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration in New York, in accordance with the rules of the American
Arbitration Association then in effect; provided, however, that the evidentiary
standards set forth in this Agreement shall apply. Judgment may be entered on the arbitrator’s
award in any court having jurisdiction. Notwithstanding any provision of this Agreement to the
contrary, the Executive shall be entitled to seek specific performance of the Executive’s right to
be paid until the Date of Termination during the pendency of any dispute or controversy arising
under or in connection with this Agreement.




     18. Definitions. For purposes of this Agreement, the following terms shall have the
meanings indicated below:



          a. “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of
the Exchange Act.




          b. “Auditor” shall have the meaning set forth in Section 7 hereof.




          c. “Base Amount” shall have the meaning set forth in section 280G(b)(3) of the Code.




          d. “Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act.




          e. “Board” shall mean the Board of Directors of the Company.




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          f. “Cause” for termination by the Company of the Executive’s employment shall mean (i) the
willful and continued failure by the Executive to substantially perform the Executive’s duties with
the Company after a written demand for substantial performance is delivered to the Executive by the
Board, which demand specifically identifies the manner in which the Board believes that the
Executive has not substantially performed the Executive’s duties, and Executive has not cured any
such failure that is capable of being cured in all material respects within ten (10) days of
receiving such written demand, or (ii) the willful engaging by the Executive in conduct which is
demonstrably and materially injurious to the Company or its subsidiaries, monetarily or otherwise.
For purposes of clauses (i) and (ii) of this definition, (x) no act, or failure to act, on the
Executive’s part shall be deemed “willful” unless done, or omitted to be done, by the Executive not
in good faith and without reasonable belief that the Executive’s act, or failure to act, was in the
best interest of the Company and (y) in the event of a dispute concerning the application of this
provision, no claim by the Company that Cause exists shall be given effect unless the Company
establishes to the Board by clear and convincing evidence that Cause exists.




          g. A “Change in Control” shall be deemed to have occurred if the event set forth in any one of
the following paragraphs shall have occurred:





          (1) any Person is or becomes the Beneficial Owner, directly or indirectly, of
securities of the Company (not including in the securities beneficially owned by such
Person any securities acquired directly from the Company or its affiliates) representing
25% or more of the combined voting power of the Company’s then outstanding securities,
excluding any Person who becomes such a Beneficial Owner in connection with a transaction
described in clause (i) of paragraph (3) below; or




          (2) the following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on the date hereof, constitute the Board
and any new director (other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election by the Company’s
stockholders was approved or recommended by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on the date hereof or whose
appointment, election or nomination for election was previously so approved or recommended;
or




          (3) there is consummated a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company with any other corporation, other than (i) a merger or
consolidation which would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities of the surviving entity
or any parent
thereof), in combination with the ownership of any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any



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subsidiary of the Company, at least 70% of the combined voting power of the securities of
the Company or such surviving entity or any parent thereof outstanding immediately after
such merger or consolidation and in proportion to their relative voting power immediately
prior to such merger or consolidation, or (ii) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no Person is
or becomes the Beneficial Owner, directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the Company’s then outstanding
securities; or




          (4) the stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or there is consummated an agreement for the sale or disposition
by the Company of all or substantially all of the Company’s assets, other than a sale or
disposition by the Company of all or substantially all of the Company’s assets to an
entity, at least 70% of the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same proportions as their
ownership of the Company immediately prior to such sale. Notwithstanding the foregoing, a
“Change in Control” shall not be deemed to have occurred by virtue of the consummation of
any transaction or series of integrated transactions immediately following which the record
holders of the common stock of the Company immediately prior to such transaction or series
of transactions continue to have substantially the same proportionate ownership in an
entity which owns all or substantially all of the assets of the Company immediately
following such transaction or series of transactions.



          h. “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.




          i. “Company” shall mean Starwood Hotels and Resorts Worldwide, Inc., and, except in
determining under Section 17(g) hereof whether or not any Change in Control of the Company has
occurred, shall include any successor to its business and/or assets which assumes and agrees to
perform this Agreement by operation of law, or otherwise.




          j. “Date of Termination” shall have the meaning set forth in Section 8 hereof.




          k. “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to
time.




          l. “Excise Tax” shall mean any excise tax imposed under section 4999 of the Code.




          m. “Executive” shall mean the individual named in the first paragraph of this Agreement.




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          n. The Executive will be deemed to have a “409A Disability” if (A) the Executive is unable to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, (B) the Executive is, by reason of any medically
determinable physical or mental impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months, receiving income replacement
benefits for a period of not less than three (3) months under an accident and health plan covering
Company employees; or (C) the Executive is determined to be totally disabled by the Social Security
Administration.




          o. “General Disability” shall be deemed the reason for the termination by the Company of the
Executive’s employment, if, as a result of the Executive’s incapacity due to physical or mental
illness, the Executive shall have been absent from the full-time performance of the Executive’s
duties with the Company for a period of six (6) consecutive months, the Company shall have given
the Executive a Notice of Termination for Disability, and, within thirty (30) days after such
Notice of Termination is given, the Executive shall not have returned to the full-time performance
of the Executive’s duties.




          p. “Good Reason” for termination by the Executive of the Executive’s employment shall mean the
occurrence (without the Executive’s express written consent) after any Change in Control, or prior
to a Change in Control under the circumstances described in clauses (ii) and (iii) of the second
sentence of Section 6(a) hereof (treating all references in paragraphs (1) through (7) below to a
“Change in Control” as references to a “Potential Change in Control”), of any one of the following
acts by the Company, or failures by the Company to act, unless, in the case of any act or failure
to act described in paragraph (1), (5), (6) or (7) below, such act or failure to act is corrected
prior to the Date of Termination specified in the Notice of Termination given in respect thereof:





          (1) the assignment to the Executive of any duties inconsistent with the Executive’s
status as a senior executive officer of the Company or a substantial adverse alteration in
the nature or status of the Executive’s responsibilities from those in effect immediately
prior to the Change in Control;




          (2) a reduction by the Company in the Executive’s annual base salary as in effect on
the date hereof or as the same may be increased from time to time;




          (3) the relocation of the Executive’s principal place of employment to a location more
than 35 miles from the Executive’s principal place of employment immediately prior to the
Change in Control or the Company’s requiring the Executive to be based anywhere other than
such principal place of employment (or permitted relocation thereof) except for required
travel on the Company’s business to an extent substantially consistent with the Executive’s
present business travel obligations;



14









 






          (4) the failure by the Company to pay to the Executive any portion of the Executive’s
current compensation, or to pay to the Executive any portion of an installment of deferred
compensation under any deferred compensation program of the Company, within seven (7) days
of the date such compensation is due;




          (5) the failure by the Company to continue in effect any compensation plan in which
the Executive participates immediately prior to the Change in Control which is material to
the Executive’s total compensation, including but not limited to the Company’s stock
option, bonus and other plans or any substitute plans adopted prior to the Change in
Control, unless an equitable arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to such plan, or the failure by the Company to continue
the Executive’s participation therein (or in such substitute or alternative plan) on a
basis not materially less favorable, both in terms of the amount or timing of payment of
benefits provided and the level of the Executive’s participation relative to other
participants, as existed immediately prior to the Change in Control;




          (6) the failure by the Company to continue to provide the Executive with benefits
substantially similar to those enjoyed by the Executive under any of the Company’s pension,
savings, life insurance, medical, health and accident, or disability plans in which the
Executive was participating immediately prior to the Change in Control, the taking of any
other action by the Company which would directly or indirectly materially reduce any of
such benefits or deprive the Executive of any material fringe benefit enjoyed by the
Executive at the time of the Change in Control, or the failure by the Company to provide
the Executive with the number of paid vacation days to which the Executive is entitled on
the basis of years of service with the Company in accordance with the Company’s normal
vacation policy or any employment agreement in effect at the time of the Change in Control;
or




          (7) any purported termination of the Executive’s employment which is not effected
pursuant to a Notice of Termination satisfying the requirements of Section 8(a) hereof; for
purposes of this Agreement, no such purported termination shall be effective.



     The Executive’s right to terminate the Executive’s employment for Good Reason shall not be
affected by the Executive’s incapacity due to physical or mental illness. The Executive’s
continued employment shall not constitute consent to, or a waiver of rights with respect to, any
act or failure to act constituting Good Reason hereunder.



     For purposes of any determination regarding the existence of Good Reason, any claim by the
Executive that Good Reason exists shall be presumed to be correct unless the Company establishes to
the Board by clear and convincing evidence that Good Reason does not exist.



15









 





          q. “Notice of Termination” shall have the meaning set forth in Section 8 hereof.




          r. “Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified
and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the
Company or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities, or (iv) a corporation owned,
directly or indirectly, by the stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company.




          s. “Potential Change in Control” shall be deemed to have occurred if the event set forth in
any one of the following paragraphs shall have occurred:





	 	(1)	 	the Company enters into
an agreement, the consummation of which would result in the
occurrence of a Change in Control;
	 
	 	(2)	 	the Company or any
Person publicly announces an intention to take or to
consider taking actions which, if consummated, would
constitute a Change in Control;
	 
	 	(3)	 	any Person becomes the
Beneficial Owner, directly or indirectly, of securities of
the Company representing 15% 14 or more of either the then
outstanding shares of common stock of the Company or the
combined voting power of the Company’s then outstanding
securities (not including in the securities beneficially
owned by such Person any securities acquired directly from
the Company or its affiliates); or
	 
	 	(4)	 	the Board adopts a
resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.





          t. “Retirement” shall be deemed the reason for the termination by the Executive of the
Executive’s employment if such employment is terminated in accordance with the Company’s retirement
policy, including early retirement, generally applicable to its salaried employees.




          u. “Severance Payments” shall have the meaning set forth in Section 6 hereof.




          v. “Tax Counsel” shall have the meaning set forth in Section 7 hereof.




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          w. “Term” shall mean the period of time described in Section 2 hereof (including any
extension, continuation or termination described therein).




          x. “Total Payments” shall mean those payments so described in Section 7 hereof.




          y.




          IN WITNESS WHEREOF, the parties have caused this Supplement to be duly executed as of the date
first written above.




	 	 	 	 	 
	 	STARWOOD HOTELS AND RESORTS

WORLDWIDE, INC.

 	 
	 	By 	
 	 
	 	 	NAME: Jeffrey Cava 	 
	 	 	TITLE: EVP — Human Resources
Dated:  December 30, 2008 	 
	 



	 	 	 	 	 
	 	EXECUTIVE

 	 
	 	
 	 
	 	Matthew E. Avril
 	 
	 	Dated:  December 30, 2008 	 
	 




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