FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED 1994 EMPLOYEE
RESTRICTED STOCK AND RESTRICTED UNIT PLAN OF
XXXXXXX X. XXXXX RESIDENTIAL REALTY, INC.
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED 1994 EMPLOYEE RESTRICTED
STOCK AND RESTRICTED UNIT PLAN, dated as of October 25, 1999, is entered into by
and among Xxxxxxx X. Xxxxx Residential Realty, Inc., a Maryland corporation, for
itself and as general partner of Xxxxxxx X. Xxxxx Residential Realty L.P.
(together the "Company"), and Xxxxx Realty Company, Consolidated Engineering
Services, Inc., and Xxxxx Management Construction, Inc. (collectively, the
"Operating Subsidiaries").
WHEREAS, the 1994 Employee Restricted Stock and Restricted Unit Plan (the
"Plan") was duly adopted by the Board of Directors of Xxxxxxx X. Xxxxx
Residential Realty, Inc., on June 13, 1994, by the stockholders of Xxxxxxx X.
Xxxxx Residential Realty, Inc., on June 17, 1994, by the Board of Directors of
Xxxxxxx X. Xxxxx Residential Realty, Inc., acting in its capacity as the general
partner of Xxxxxxx X. Xxxxx Residential Realty L.P. on June 13, 1994, by the
partners of Xxxxxxx X. Xxxxx Residential Realty L.P. on June 17, 1994, and by
the Boards of Directors of the Operating Subsidiaries on June 23, 1994, and the
Plan, together with the 1994 Employee Stock and Unit Option Plan and Directors
Stock Option Plan, was incorporated in a filing on Form S-8 with the Securities
and Exchange Commission (the "SEC"), which became effective on August 8, 1994;
WHEREAS, the Company did adopt the Plan for the benefit of their employees
and the employees of Xxxxx Realty Company (formerly Xxxxx Property Management,
Inc.), Consolidated Engineering Services, Inc., and Xxxxx Management
Construction, Inc.;
WHEREAS, the Board of Directors believes that it would be in the best
interests of the Company to amend Sections 2.11, 3.1, 3.2 and 10.2 of the Plan
to revise the method by which the value of each share of Stock (as defined in
the Plan) subject to the Plan is determined and to facilitate the administration
of the Plan; and
WHEREAS, the Board of Directors of the Company did approve such amendments
at a meeting of the Board of Directors held on October 25, 1999.
NOW, THEREFORE, in consideration of the premises herein set forth and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby amend the Plan, as follows:
1. Section 2.11 of the Plan is hereby amended so that the first sentence
of Section 2.11 shall read as follows:
"2.11 'Fair Market Value' means the value of each share of Stock
subject to the Plan determined as follows: if on the Grant Date or other
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determination date the shares of Stock are listed on an established
national or regional stock exchange, are admitted to quotation on the
National Association of Securities Dealers Automated Quotation System, or
are publicly traded on an established securities market, the Fair Market
Value of the shares of Stock shall be the closing price of the shares of
Stock on such exchange or in such market (the highest such closing price
if there is more than one exchange or market) on the Grant Date (or, if
the Grant Date is not a trading day, the trading day immediately
preceding the Grant Date) or such other determination date (or if there
is no such reported closing price, the Fair Market Value shall be the
mean between the highest bid and lowest asked prices or between the high
and low sales prices on the Grant Date or such preceding trading day) or,
if no sale of the shares of Stock is reported for the Grant Date or such
preceding trading day, on the next preceding day on which any sale shall
have been reported."
2. Section 3.1 of the Plan is hereby amended by deleting the second
sentence of Section 3.1 in its entirety, so that such Section 3.1 now reads as
follows:
"3.1 Company Plan. The Company Plan shall be administered by the
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Company Committee. The Company Committee shall have such powers and
authorities related to the administration of the Company Plan as are
consistent with the Company's articles of incorporation and by-laws and
with applicable law. The Company Committee shall have the full power and
authority (subject to any restrictions imposed by the Board of Directors
of the Company, the Company's articles of incorporation or by-laws or
applicable law) to take all actions and to make all determinations
required or provided for under the Company Plan, any Incentive Award
granted by the Company Committee under the Company Plan and any Agreement
entered into in connection therewith and shall have the full power and
authority to take all such other actions and determinations not
inconsistent with the specific terms and provisions of the Company Plan
that the Company Committee deems to be necessary or appropriate to the
administration of the Company Plan, any Incentive Award granted by the
Company Committee under the Company Plan and any Agreement entered into
in connection therewith. The interpretation and construction by the
Company Committee of any provision of the Company Plan, any Incentive
Award granted by the Company Committee under the Company Plan and any
Agreement entered into in connection therewith shall be final and
conclusive with respect to the Holder."
3. Section 3.2 of the Plan is hereby amended by deleting the second
sentence of Section 3.2 in its entirety, so that such Section 3.2 now reads as
follows:
"3.2 Operating Partnership Plan. The Operating Partnership Plan
--------------------------
shall be administered by the Company Committee. The Company Committee
shall have the full power and authority (subject to any restrictions
imposed
on such Committee by Section 3.1 hereof) to take all actions and to make
all determinations required or provided for under the Operating
Partnership Plan, any Incentive Award granted by the Company Committee
under the Operating Partnership Plan and any Agreement entered into in
connection therewith and shall have the full power and authority to take
all such other actions and determinations not inconsistent with the
specific terms and provisions of the Operating Partnership Plan that the
Company Committee deems to be necessary or appropriate to the
administration of the Operating Partnership Plan, any Incentive Award
granted by the Company Committee under the Operating Partnership Plan and
any Agreement entered into in connection therewith. The interpretation
and construction by the Company Committee of any provision of the
Operating Partnership Plan, any Incentive Award granted by the Company
Committee under the Operating Partnership Plan and any Agreement entered
into in connection therewith shall be final and conclusive with respect
to the Holder."
4. Section 10.2 of the Plan is hereby amended by amending Section 15.2 to
read as follows:
"10.2 Rule 16b-3. To the extent any action by the Plan
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administrators does not comply with the requirements of Rule 16b-3, it
shall be deemed inoperative, to the extent permitted by law and deemed
advisable by the Plan administrators, and shall not affect the validity
of the Plan. In the event Rule 16b-3 is revised or replaced, the Board
of Directors of the Company may exercise discretion to modify this Plan
in any respect necessary to satisfy the requirements of the revised
exemption or its replacement."
5. All capitalized terms used in this First Amendment and not otherwise
defined shall have the meanings assigned to them in the Plan. Except as modified
herein, all terms and conditions of the Plan shall remain in full force and
effect, which terms and conditions the parties hereto ratify and affirm.
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IN WITNESS WHEREOF, the undersigned have executed this FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED 1994 EMPLOYEE RESTRICTED STOCK AND RESTRICTED UNIT
PLAN as of the date first above written.
XXXXXXX X. XXXXX RESIDENTIAL REALTY, INC., for itself
and as general partner of Xxxxxxx X. Xxxxx Residential
Realty L.P.
BY: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx., President
This First Amendment to the Plan was duly adopted and approved by the Board of
Directors of the Company at a meeting of the Board of Directors held on October
25, 1999.
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Secretary of the Company
