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EXHIBIT 10.16.8
FIRST AMENDMENT TO
AMENDED AND RESTATED EMPLOYMENT CONTRACT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT
CONTRACT is entered as of the 24th day of March 1997 by and between OASIS
RESIDENTIAL, INC., a Nevada corporation (the "Company") and XXXXXX X. XXXX (the
"Employee").
WHEREAS, the Company and the Employee have entered into an
Amended and Restated Employment Contract dated as of January 27, 1997 (the
"Employment Contract"); and
WHEREAS, the Company and the Employee desire to amend the
Employment Contract in the manner set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual agreements set forth herein and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
Company and the Employee agree as follows:
SECTION 1. AMENDMENT OF SECTION 4.1 OF THE EMPLOYMENT
CONTRACT.
The first sentence of Section 4.1 of the Employment Contract
is hereby amended to read in full as follows:
"Employee shall serve as the Executive Vice President,
Development and Investment of the Company and, subject to
stockholder approval, shall serve as a member of the Board of
Directors of the Company."
SECTION 2. AMENDMENT OF SECTION 5.2.1 OF THE EMPLOYMENT
CONTRACT.
Section 5.2.1 of the Employment Contract is hereby amended to
read in full as follows:
"5.2.1 Amount. In the event the Company terminates
Employee's services hereunder pursuant to Section 5.1, Employee
shall continue to render services pursuant hereto until the date of
termination of employment and shall continue to receive
compensation, as provided hereunder, through the termination date.
In addition to other compensation payable to Employee for services
rendered through the termination date, the Company shall pay
Employee on the termination date, as a single severance payment, an
amount (the "Severance Amount") equal to three times the sum of (i)
Employee's current annual Base Compensation and (ii) the highest
annual bonus paid or payable to Employee with respect to the three
preceding fiscal years."
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SECTION 3. AMENDMENT OF SECTION 5.2.4 OF THE EMPLOYMENT
CONTRACT.
Section 5.2.4 of the Employment Contract is hereby amended to
read in full as follows:
"5.2.4 Notwithstanding anything contained in any stock
option agreement pursuant to which stock options may have been
granted or may in the future be granted to Employee, all stock
options held by Employee and not otherwise exercisable at the time
of termination of the employment of Employee under Section 5.1
shall, immediately upon such termination, become exercisable in full
and Employee shall have the right to exercise such stock options, as
well as all other stock options held by Employee at the time of such
termination, at any time during the period ending on the 10th
anniversary of the respective date of grant of the option."
SECTION 4. AMENDMENT OF SECTION 5.6 OF THE EMPLOYMENT
CONTRACT.
Section 5.6 of the Employment Contract is hereby amended to
read in full as follows:
"5.6 Exercise of Options. In the event the Company
terminates this Contract for cause pursuant to Section 5.3, or
Employee voluntarily terminates this Contract pursuant to Section
5.5, then, subject to the provisions of Section 5.7 of this
Contract, Employee shall be entitled to exercise those stock options
held by Employee on the date of termination, but only during the
90-day period following the date of termination and only if and to
the extent the options are exercisable by their express terms on the
date of termination. Any options so exercisable which are not
exercised during the foregoing 90-day period shall be canceled
automatically upon expiration of the 90-day period."
SECTION 5. AMENDMENT OF SECTION 5.7 OF THE EMPLOYMENT
CONTRACT.
Section 5.7 of the Employment Contract is hereby amended to
read in full as follows:
"5.7 Change Control. In the event the Employee
terminates his employment under this Contract within one year
following a Change in Control of the Company (as defined below), or
in the event Employee's employment is terminated by the Company
within one year after a Change in Control of the Company, (i) the
Employee shall continue to render services under this Contract until
the date of termination and shall continue to receive compensation,
as provided in this Agreement, through the termination date, and
(ii) in addition to any other compensation payable to Employee for
services through the termination date, Employee shall have the same
rights, including, without limitation, the right to receive the
Severance Amount, as Employee would have had if the Company had
terminated his employment pursuant to Section 5.1
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hereof. For purposes of this Contract, a "Change in Control of the
Company" shall mean the occurrence of any of the following:
"(i) a report on Schedule 13D shall be filed
with the Securities and Exchange Commission pursuant to
Section 13(d) of the Securities Exchange Act of 1934 (the
"Act") disclosing that any Person (within the meaning of
Section 13(d) of the Act) ("Person"), other than the Company
or a subsidiary of the Company or any employee benefit plan
sponsored by the Company or a subsidiary of the Company, is
the beneficial owner (within the meaning of Rule 13d-3 under
the Act) ("Beneficial Owner") directly or indirectly of twenty
percent or more of any voting securities of the Company
("Voting Securities");
"(ii) any Person, other than the Company or a
subsidiary of the Company or any employee benefit plan
sponsored by the Company or a subsidiary of the Company, shall
purchase Voting Securities of the Company pursuant to a tender
offer or exchange offer to acquire any Voting Securities of
the Company (or securities convertible into Voting Securities)
for cash, securities or any other consideration, provided that
after consummation of the offer, the Person in question is the
Beneficial Owner, directly or indirectly, or fifteen percent
or more of the outstanding Voting Securities of the Company
(calculated as provided in paragraph (d) of Rule 13d-3 under
the Act in the case of rights to acquire Voting Securities);
"(iii) the stockholders of the Company shall
approve any merger, consolidation or reorganization involving
the Company, unless the merger, consolidation or
reorganization is a "Non-Control Transaction" as defined
below; or
"(iv) the individuals who, as of the date of
this Contract, are members of the Board of Directors of the
Company (the "Incumbent Board") cease for any reason to
constitute at least two-thirds of the members of the Board,
provided, however, that if the election, or the nomination for
election by the Company's stockholders, of any new director
was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Contract,
be considered to be a member of the Incumbent Board, provided
further, that no individual shall be considered a member of
the Incumbent Board if the individual initially assumed office
as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 under the Act) or other
actual or threatened solicitation of proxies or consents by or
on behalf of a person other than the Board of Directors of the
Company (a "Proxy Contest") including by reason of any
agreement intended to avoid or settle any Election Contest or
Proxy Contest.
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"(v) a complete liquidation of dissolution of
the Company; or
"(vi) the Company shall enter into an
agreement for the sale or other disposition of all or
substantially all of the assets of the Company to any Person
(other than a transfer to any subsidiary of the Company).
For purposes of this Contract, the term "Non-Control
Transaction" shall mean a merger, consolidation or
reorganization of the Company where:
"(A) the stockholders of the Company,
immediately before the merger, consolidation or
reorganization, own directly or indirectly immediately
following the merger, consolidation or reorganization, at
least seventy percent of the combined voting power of the
outstanding voting securities of the corporation resulting
from the merger, consolidation or reorganization (the
"Surviving Corporation") in substantially the same proportion
as their ownership of the Voting Securities immediately before
the merger, consolidation or reorganization, and
"(B) the individuals who were members of the
Incumbent Board immediately prior to the execution of the
agreement providing for the merger, consolidation or
reorganization constitute at least two-thirds of the members
of the board of directors of the Surviving Corporation , or a
corporation Beneficially Owning, directly or indirectly, a
majority of the Voting Securities of the Surviving
Corporation, and
"(C) no Person other than (1) the Company,
(2) any subsidiary of the Company, (3) any employee benefit
plan of the Company (or trust forming a part of such a plan)
maintained by the Company, the surviving Corporation or any
subsidiary of the Company, or (4) any Person who, immediately
prior to the merger, consolidation or reorganization had
Beneficial Ownership of thirty percent or more of the then
outstanding Voting Securities, has Beneficial Ownership of
thirty percent or more of the Surviving Corporation's
outstanding voting securities.
"Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur solely because any Person
(the "Subject Person") acquired Beneficial Ownership of more
than the permitted amount of the then outstanding Voting
Securities as a result of the acquisition of Voting Securities
by the Company which, by reducing the number of Voting
Securities then outstanding, increases the proportional number
of shares beneficially owned by the Subject Person, provided
that if a Change in Control would occur (but for the operation
of this sentence) as a result of the acquisition of Voting
Securities by the Company, and after such share acquisition by
the Company, the Subject Person becomes the Beneficial Owner
of any additional Voting Securities which increases the
percentage
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of the then outstanding Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur."
SECTION 6. AMENDMENT OF SECTION 9 OF THE EMPLOYMENT CONTRACT.
Section 9 of the Employment Contract is hereby amended by
deleting the phrase "outside the Company" which appears in the first sentence
of Section 9. Section 9 of the Employment Contract is hereby further amended
by adding the following immediately prior to the sentence in Section 9 that
reads "Nothing herein shall relieve or limit Employee's obligation to comply
with Sections 6, 7 and 8 above":
"In furtherance of the foregoing and during the one year
period following the date of termination, Employee shall not
solicit or attempt to divert, take away or call on, directly
or indirectly, for himself or for any other person or entity,
any customers or potential customers of the Company or,
directly or indirectly or by action in concert with others,
influence or induce or seek to influence or induce, any
employee, agent, independent contractor or other business
affiliate of the Company to terminate its, his or her
relationship with the Company; for purposes of the foregoing,
potential customers shall include those persons or entities
which the Company or management of the Company has or may have
any reasonable basis to believe may in the future become
customers of the Company."
Section 9 of the Employment Contract is hereby further amended
by amending the sentence that reads "The restrictions set forth in this Section
shall not apply if Employee is terminated pursuant to Section 5.1 above" to
read in full as follows:
"The restrictions set forth in this Section shall not apply if
the employment of Employee is terminated by the Company
pursuant to Section 5.1 above or within one year following a
Change in Control of the Company or Employee terminates his
employment within one year following a Change in Control of
the Company."
(continued on following page)
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SECTION 7. CONTINUED EFFECTIVENESS OF THE EMPLOYMENT
CONTRACT.
Except as amended herein, the Employment Contract is hereby
ratified and confirmed and shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed this First
Amendment to Amended and Restated Employment Contract as of the day and year
first above written.
OASIS RESIDENTIAL, INC.
By:
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Xxxxx X. Xxxxxxxx
President
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XXXXXX X. XXXX
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