SECOND AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT
10.5
SECOND
AMENDMENT TO AMENDED AND RESTATED
This
SECOND AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Amendment”),
is
made this 3rd day of November, 2006, between EQUITY ONE, INC., a Maryland
corporation (the “Company”
or
“Employer”)
and
Xxxxx Xxxxxx (the “Employee”).
The
Company and the Employee have heretofore entered into an Amended and Restated
Employment Agreement dated as of July 26, 2002, as amended by that certain
First
Amendment to Amended and Restated Employment Agreement dated September 1,
2003
(the “Agreement”)
(capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Agreement). The Employer and Employee have agreed that the
Employee will resign from his positions as Director, President and Chief
Operating Officer on the date hereof, but shall continue as an employee of
the
Company under the Agreement, as modified by the terms and conditions hereof.
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants set forth below, the
parties hereby agree as follows:
1. Amendments.
Effective as of the date hereof, the Agreement shall be amended as
follows:
(a) Section
2
of the Agreement shall be amended in its entirety to read as
follows:
“From
the
Effective Date through midnight on November 2, 2006, the Employee is engaged
to
act as President and Chief Operating Officer of the Employer and shall report
to
the Chairman of the Board and Chief Executive Officer of the Employer. Subject
to the authority of the Board of Directors and the Chairman of the Board,
the
Employee shall be in charge of the day-to-day operations of the Employer’s
business and shall have full authority and responsibility for supervising
and
managing the Employer’s properties. His powers shall include the authority to
hire and fire personnel, after consultation with the Chairman of the Board
and
Chief Executive Officer. In addition, the Employee shall have such other
duties
as may from time to time be reasonably assigned to him by the Board of Directors
and Chairman of the Board and Chief Executive Officer. Commencing November
3,
2006 until the end of the term hereof, the Employee shall serve as Operations
Advisor for the Company and shall report to the Chairman of the Board of
the
Employer and shall have such duties as may be reasonably assigned to him
by the
Chairman of the Board.”
(b) Section
5
of the Agreement shall be amended by adding the following clause at the end
of
such section:
“Employee
shall have the right to exercise all vested options within the six (6) month
period immediately following Employee’s termination of employment (including
following the expiration of the term of the Agreement), provided, however,
that
in the event Employee voluntarily terminates Employee’s employment, or the
Company terminates Employee’s employment for Cause, Employee shall only have
ninety (90) days following termination of employment to exercise Employee’s
options. In addition, subject to the execution of the release attached hereto
as
Exhibit
A,
all
unvested restricted stock and options shall vest upon the expiration of the
term
hereof.”
(c) The
Agreement shall be additionally modified by adding the following provision
at
the end thereof:
“27. Non-Disparagement.
Employee covenants and agrees, both during and after the term of the Agreement,
that he shall not make any comments that could be construed as negative
concerning the Employer or any of the its affiliates to any individual or
entity, including but not limited to, stockholders, tenants, employees, vendors
or financial or credit institutions.”
2. Acknowledgment
of Non-Renewal.
The
parties hereto acknowledge that the Employee properly gave notice of his
intent
not to renew the Agreement pursuant to Section 1 thereof on August 4, 2006
and
has contemporaneously herewith resigned from his positions as a Director,
President and Chief Operating Officer of the Company, none of which actions
shall be deemed as a “voluntary resignation” or other termination of the
Agreement, which shall, except
as
otherwise expressly modified by the terms and provisions of this Amendment,
remain in full force and effect, and is hereby in all respects confirmed
and
ratified by the parties hereto.
3. Effective
Date.
This
Amendment shall be effective upon its execution by the Company and the
Employee.
4. Counterparts.
This
Amendment may be executed in counterparts and by different parties hereto
in
separate counterparts each of which, when so executed and delivered, shall
be
deemed to be an original and all of which, when taken together, shall constitute
one and the same instrument.
5. References
to Agreement.
From
and after the effective date hereof, each reference in the Agreement to “this
Agreement,” “hereto,” “hereunder” or words of like import, and all references to
the Agreement in any and all agreements, instruments, documents, notes,
certificates and other writings of every kind and nature shall be deemed
to mean
the Agreement as modified and amended by this Amendment.
IN
WITNESS WHEREOF,
the
Company and the Employee have executed this Second Amendment to Amended and
Restated Employment Agreement as of the date first written above.
THE
COMPANY:
EQUITY
ONE, INC
By:
/s/ XXXXX XXXXXX
Xxxxx
Xxxxxxx
Chairman
and Chief Executive Officer
THE
EMPLOYEE:
/s/
XXXXX
XXXXXX
Xxxxx Xxxxxx
