Exhibit 4.9
FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED AGREEMENT OF
1994 EMPLOYEE STOCK AND UNIT OPTION PLAN OF
XXXXXXX X. XXXXX RESIDENTIAL REALTY, INC.
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT OF 1994
EMPLOYEE STOCK AND UNIT OPTION PLAN, dated as of May 7, 1998, 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 Property Management, Inc., Consolidated
Engineering Services, Inc., and Xxxxx Management Construction, Inc.
(collectively the "Operating Subsidiaries").
WHEREAS, the 1994 Employee Stock and Unit Option Plan (the "Plan") was
approved by the Board of Directors of Xxxxxxx X. Xxxxx Residential Realty, Inc.,
for itself and as a general partner of the Xxxxxxx X. Xxxxx Residential Realty
L.P., by unanimous written consents dated May 25, 1994, June 13, 1994, June 22,
1994, and June 23, 1994, and at a meeting held on July 26, 1994, by the
shareholders of Xxxxxxx X. Xxxxx Residential Realty, Inc., by unanimous written
consents dated June 17, 1994, June 22, 1994, and June 23, 1994, and by the
partners of Xxxxxxx X. Xxxxx Residential Realty L.P. by unanimous written
consents dated June 17, 1994, and June 23, 1994, and the Plan, together with the
1994 Employee Restricted Stock and Restricted Unit 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 Board of Directors of the Company duly adopted and
approved the First Amended and Restated 1994 Employee Stock and Unit Option Plan
on November 8, 1994, which was incorporated in a filing on Form 10-K for the
year ended December 31, 1994 and filed with the SEC on March 31, 1995;
WHEREAS, the Company and its stockholders 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 increase the number of available option grants to
permit the continuation of this incentive program and to accommodate newly-hired
employees, while adhering to the guideline that the number of permitted option
grants be limited to approximately 10% of the outstanding securities of the
Company;
WHEREAS, the Board of Directors of the Company did, at its regular
meeting on January 27, 1998, approve a resolution increasing the number of
shares or Units available under the Plan, and submitted such proposal to the
shareholders of the Company for consideration at the 1998 Annual Meeting of the
Company; and
WHEREAS, the shareholders of the Company did, at their Annual Meeting
held on May 7, 1998, approve a resolution to increase the number of shares or
Units available for grant under the Plan by 1,400,000, to a total of 3,150,000
shares or Units.
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 4 of the Plan is hereby amended and restated in its
entirety as follows:
"The shares of Stock that may be issued pursuant to Incentive
Awards may be (i) issued and outstanding shares of Stock or Units, (ii)
treasury shares of Stock or Units (to the extent permitted by
applicable law), or (iii) authorized but unissued shares. The number of
shares of Stock and Units that may be issued pursuant to Incentive
Awards under the Plan shall not exceed a combined 3,150,000 shares of
Stock and Units. The Board of Directors of the Company shall determine
how many shares of Stock and Units may be issued pursuant to Incentive
Awards to employees of Operating Subsidiaries. If any Incentive Award
expires, terminates, or is terminated or canceled for any reason prior
to exercise or vesting in full, the shares or Units that were subject
to the unexercised, forfeited, or terminated portion of such Incentive
Award shall be available immediately for future grants by the Granting
Employer with respect thereto (subject to Section 12 hereof) of
Incentive Awards under the Plan."
2. 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 AGREEMENT OF 1994 EMPLOYEE STOCK AND UNIT OPTION
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 on the 27th day of January, 1998, and by the
shareholders of the Company at the Annual Meeting held on the 7th day of May,
1998.
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Secretary of the Company
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