Contract
EXHIBIT
10.6
THIS CONSULTING
AGREEMENT (this "Agreement") is made and entered into effective as of
January 1, 2007 (the “Effective Date”), by and among EQUITY ONE, INC., a
Maryland corporation (the “Company”), and XXXXX XXXXXX (the "Consultant").
R
E
C I T A T I O N S
A.
The Consultant served for several years as the President and Chief Operating
Officer of the Company.
B.
The Company recognizes that the Consultant possesses extensive knowledge
and
experience regarding Company’s operations. The Company believes that the
Consultant's business advice will be extremely beneficial to the Company
and
wishes to obtain such advice and the benefit of the Consultant’s knowledge and
experience.
C.
The Company desires to retain the services of the Consultant and the Consultant
desires to provide services to the Company, subject to the terms and conditions
set forth in this Agreement.
O
P E R A T I V E P R O V I S I O N
S
In consideration of
the
foregoing recitations, the mutual promises hereinafter set forth and other
good
and valuable consideration, the receipt and sufficiency of which are
acknowledged hereby, the parties hereto, intending legally to be bound,
hereby
covenant and agree as follows:
ARTICLE
I
ENGAGEMENT
OF SERVICES
1.1
Engagement
of Consultant. The Company hereby engages the
Consultant and the Consultant hereby agrees to provide consulting services
as
set forth in Section 1.3 of this Agreement.
1.2
Term of Agreement.
The
term of this Agreement shall
commence on January 1, 2007 (the “Commencement Date”) and shall continue for
twenty-four (24) months beginning with the Commencement Date, unless terminated
earlier pursuant to the provisions hereof (the “Term”).
1.3
Services to be Provided.
(a)
Services. During the Term,
upon reasonable notice from the Company, the Consultant shall make himself
available to consult with the Company, by request from time to time of the
Chairman of the Board of the Company (the “Board”). The Consultant shall
report to the Chairman of the Board. The services to be performed (the
“Services”) are consultation concerning the Company’s and its subsidiaries’
existing and contemplated business operations, including strategic planning
initiatives, its existing property management and leasing operations, and
project and vendor analysis.
(b)
Performance of Services. The
Consultant is responsible for reasonably determining the method, details
and
means of performing the Services required under this Agreement. The
Consultant shall at all times perform such Services and conduct Consultant’s
business and affairs in accordance with all applicable federal, state and
local
laws and regulations. Such consultation may be by telephone, in writing or
by other method of communication selected in the reasonable exercise of the
Consultant’s discretion. Unless otherwise agreed to in writing by the
Consultant, the Consultant shall provide the Services required hereunder
at the
location or locations that the Consultant determines in good faith to be
appropriate.
(c)
Services as Needed. Notwithstanding any other
provision of this Agreement, it is agreed that the Consultant shall not be
required to devote any minimum amount of time during any particular week
or
year, but shall perform the Services pursuant to this Agreement on an “as
needed” basis at such times (consistent with Section 1.3(b) hereof) and for such
periods as the Company, through its Chairman of the Board may reasonably
request. Notwithstanding the foregoing, the Consultant shall have the
ability to designate four (4) weeks (i.e., 5 day periods from Monday through
Friday) during the Term of this Agreement during which his Services shall
not be
available.
1.4
Nature of
Consulting Relationship. It is agreed and
understood by the parties to this Agreement that, for all purposes, during
the
term of this Agreement, the Consultant shall serve solely as an independent
contractor of the Company and shall not be an employee or officer of the
Company
in any capacity, and, as a result, he shall have none of the fiduciary duties
associated with such position or role under state corporate law or
otherwise. Nothing in this Agreement shall be interpreted or construed as
creating or establishing the relationship of employer and employee between
the
Consultant and Company. As an independent contractor, the Consultant shall
accept any directions issued by the Company pertaining to the goals to be
attained and the results to be achieved by him, but shall be solely responsible
for the manner and hours in which he will perform his services under this
Agreement. It is agreed and understood by the parties to this Agreement
that the Company will treat Consultant as an independent contractor for purposes
of all tax laws (local, state and federal) and file any required forms
consistent with that status. Consultant agrees, as an independent
contractor, that he is not entitled to unemployment benefits in the event
this
Agreement terminates, or workers' compensation benefits in the event that
he is
injured in any manner while performing obligations under this Agreement.
The Consultant will be solely responsible to pay any and all local, state,
and/or federal income, social security, unemployment taxes for himself, as
well
as workers’ compensation coverage.
ARTICLE
II
PAYMENT
TO CONSULTANT
2.1
Consulting
Fee. In consideration for the services to be
provided by the Consultant pursuant to Section 1.3 hereof, the Company agrees
to
pay the Consultant $1.75 million (“Consulting Fee”), which amount will be
payable in advance, in equal, semi-annual installments on January 1 and July
1,
2007 and January 1 and July 1, 2008.
2.2
Expense Reimbursement.
During
the Term of this Agreement,
the Company shall reimburse the Consultant for all reasonable business expenses
actually paid or incurred by the Consultant in the course of and pursuant
to the
business of the Company, upon proper submission of supporting documentation
by
the Consultant and in accordance with such policies and guidelines as from
time
to time may be established by the Company.
ARTICLE
III
DEATH
&
DISABILITY
3.1
Death or
Disability. Notwithstanding anything to the contrary
contained in this Agreement, in the event of the Consultant’s death or
Disability during the Term of this Agreement, all unpaid portions of the
Consulting Fee shall paid by the Company as soon as practical following the
date
of the Consultant’s death or Disability. For purposes of this Agreement,
“Disability” shall mean if the Consultant shall, as a result of mental or
physical incapacity, illness or disability, become unable to perform his
obligations hereunder as determined reasonably by the Company, following
an
examination by a physician reasonably acceptable to the Company.
ARTICLE
IV
TERMINATION
4.1
Termination. Notwithstanding anything to the
contrary contained in this Agreement, the engagement and provision of the
Services under this Agreement shall terminate on the earlier of:
(i)
the expiration of the Term as set forth in Section 1.2; or
(ii)
the date on which one
party (the “Terminating Party”) provides written notice of
such termination to the other party (the “Breaching Party”) by reason of the
fact that the Breaching Party has materially breached his or its obligations
under this Agreement (other than due to Consultant’s death or Disability), which
breach is not cured by the Breaching Party within thirty (10) days after
the
Terminating Party has given written notice of such breach to the Breaching
Party
(a “Material Breach”). For purposes of this Agreement, the Consultant
shall be considered in Material Breach only if he willfully fails to perform
the
required Services hereunder after reasonable notice and an opportunity to
cure
within ten (10) days of such failure to perform.
4.2
Termination Obligations. If
the Company terminates this Agreement for any reason other than Material
Breach
by the Consultant, the Company shall pay all unpaid portions of the Consulting
Fee as soon as practical following the date of termination. If the Company
terminates this Agreement due to the Consultant’s Material Breach, then all
unpaid portions of the Consulting Fee shall be forfeited as of the date of
termination.
ARTICLE
V
MISCELLANEOUS
5.1
Entire Agreement;
Amendment. This Agreement constitutes
the entire agreement between the parties hereto and supersedes all prior
agreements, understandings, negotiations and discussions, both written and
oral,
among the parties hereto with respect to the subject matter hereof.
Notwithstanding the foregoing, nothing in this Agreement is intended to modify,
limit or diminish the provisions of that certain Employment Agreement, effective
January 1, 2002, by and between the Consultant and the Company (the “Employment
Agreement”). This Agreement may not be amended or modified in any way
except by a written instrument executed by the Company and the Consultant.
5.2
Notice.
All
notices required or permitted to be given
hereunder shall be in writing and shall be personally delivered by courier
or
sent by registered or certified mail, return receipt requested as set forth
herein. Notices personally delivered or sent by overnight courier shall be
deemed given on the date of delivery and notices mailed in accordance with
the
foregoing shall be deemed given upon the receipt by the addressee, as evidenced
by the return receipt thereof. Notice shall be sent (i) if to the Company,
addressed to: 0000 XX Xxxxx Xxxxxxx Xxxxx, Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000,
Attention: Chairman of the Board, and (ii) if to the Consultant, to his address
as reflected on the current payroll records of the Company, or to such other
address designated by the party by written notice in accordance with this
provision.
5.3
Governing
Law; Waiver of Jury Trial. This Agreement shall
be governed by, and construed and interpreted in accordance with, the laws
of
the State of Florida, without giving effect to the conflict of laws principles
of each State. THE PARTIES HEREBY IRREVOCABLY WAIVE THEIR RIGHT TO
A JURY TRIAL.
5.4
Assignment:
Successors and Assigns. Neither the Consultant
nor the Company may make an assignment of this Agreement or any interest
herein,
by operation of laws or otherwise, without the prior written consent of the
other party; provided that the Company shall assign its rights and obligations
under this Agreement to any corporation, partnership, organization or other
entity in the event that the Company shall effect a reorganization, consolidate
with or merge into such other corporation, partnership, organization or other
entity, or transfer all or substantially all of its properties or assets
to such
other corporation, partnership, organization or other entity; provided, further,
that the Consultant can assign this Agreement to any corporation, limited
liability company or other business entity of which Consultant is the sole
owner, in which case the Consultant shall remain liable for any failure to
perform or other breach hereof by the successor corporation, limited liability
company or other business entity. This Agreement shall inure to the benefit
of
and be binding upon the Company and the Consultant, their respective heirs,
personal representatives, executors, legal representatives, successors and
assigns.
5.5
Waiver.
The
waiver by any party hereto of the other
party's prompt and complete performance or breach or violation of any provision
of this Agreement shall not operate nor be construed as a waiver of any
subsequent breach or violation, and the waiver by any party hereto to exercise
any right or remedy which he or it may possess shall not operate nor be
construed as the waiver of such right or remedy by such party or as a bar
to the
exercise of such right or remedy by such party upon the occurrence of any
subsequent breach or violation.
5.6
Severability.
The
invalidity of any one or more of the
words, phrases, sentences, clauses, sections or subsections contained in
this
Agreement shall not affect the enforceability of the remaining portions of
this
Agreement or any part thereof, all of which are inserted conditionally on
their
being valid in law, and, in the event that any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall be declared invalid by a court of competent jurisdiction, then this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, section or sections, or
subsection or subsections had not been inserted.
5.7
Compliance
with Legal Requirements. The Consultant shall
comply at his expense with all applicable provisions of workers’ compensation
laws, unemployment compensation laws, federal Social Security law, the Fair
Labor Standards Act, federal, state and local income tax laws, and all other
applicable federal, state and local laws, regulations and codes relating
to
terms and conditions of employment required to be fulfilled by employers
or
independent contractors. Consultant agrees that he will not take any
action in connection with the Consultant’s Services hereinthat would be illegal
or in violation of applicable laws, rules, and regulations. The Company
shall not be required, by reason of this Agreement, to provide workers’
compensation, disability insurance, Social Security or unemployment compensation
coverage nor any other statutory benefit to the Consultant.
5.8
Gender and
Number. Wherever the context shall so require,
all words herein in the male gender shall be deemed to include the female
or
neuter gender, all singular words shall include the plural and all plural
words
shall include the singular.
5.9
Section Headings.
The
section or other headings contained
in this Agreement are for reference purposes only and shall not affect in
any
way the meaning or interpretation of any or all of the provisions of this
Agreement.
5.10
No Third
Party Beneficiary. Nothing expressed or implied
in this Agreement is intended, or shall be construed, to confer upon or give
any
person, firm, corporation, partnership, association or other entity, other
than
the parties hereto and each of their respective heirs, personal representatives,
legal representatives, successors and assigns, any rights or remedies under
or
by reason of this Agreement.
5.11
No Authority to Bind
Company. The Consultant
does not and shall not have any authority to enter into any contract or
agreement for, on behalf of or in the name of the Company, or to legally
bind
the Company to any commitment or obligation.
5.12
Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original
but
all of which together shall constitute one and the same instrument and
agreement.
5.13
Indemnification. To the maximum extent permitted by law,
the Company shall indemnify, hold harmless, protect and defend (with counsel
reasonably acceptable to Consultant) Consultant from and against any and
all
claims, demands, actions, fines, penalties, liabilities, losses, damages,
injuries and expenses (including without limitation, actual attorneys’,
consultant’s and expert witness’ fees and costs at the pre-trial, trial and
appellate levels and in bankruptcy proceedings) related to, arising out of
or
resulting from the performance by the Consultant of his obligations and duties
hereunder in accordance with the terms hereof, provided, however, that the
Company does not hereby agree, and shall not be obligated to, so indemnify
the
Consultant from any such loss, cost, damage, liability or expense (i) arising
out of any act or omission of the Consultant or any of his agents, officers,
employees, independent contractors or representatives, which act or omission
constitutes gross negligence, willful misconduct or fraud or is in material
breach of this Agreement, and (ii) relating to any obligation of the Consultant
to comply with the provisions of Section 5.7 above including, but not limited
to, the Consultant’s obligation to pay tax under any federal, state or local tax
law. Notwithstanding any other provisions of this Agreement to the
contrary, the Company’s obligations under this Section 5.13 shall survive the
expiration, termination or cancellation of this Agreement. In addition,
notwithstanding the foregoing, nothing in this Section 5.13 is intended to
modify, limit or diminish the provisions of the Employment Agreement (referred
to in Section 5.1 hereof).
IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
By:
/s/ XXXXX KATZMAN_____________
Print
Name: Xxxxx Xxxxxxx
Title:
Chairman and Chief Executive Officer
Date:
November 3,
2006
THE
CONSULTANT:
/s/
DORON VALERO____ ___________
XXXXX
XXXXXX
Date:
November 3,
2006
