EXHIBIT 10H
Amendment
to
NONELECTIVE DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT entered into by and between Sizeler Property
Investors, Inc., a Delaware corporation qualified as a real estate investment
trust ("SPI"), with principal offices at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxx,
Xxxxxxxxx, and Xxxxxx X. Xxxxxx, an individual residing in _______________,
Louisiana ("Executive"), as of August 3, 2000.
RECITALS
A. SPI entered into a Nonelective Deferred Compensation
Agreement with the Executive as of June 11, 1999 (the "Original Agreement").
B. SPI wishes to amend the Original Agreement to conform it
to the Severance Agreement entered into by and between SPI and Executive as
amended and restated effective as of the date of this agreement.
NOW, THEREFORE, SPI and Executive agree that the Original
Agreement shall be and it is amended as follows, effective August 3, 2000:
1. The text in Section 1.2 of the Original Agreement
(definition of "Adverse Circumstances") is deleted and the word "RESERVED" is
substituted in its place.
2. Section 1.5 of the Original Agreement is deleted and the
following new Section 1.5 is substituted in its place:
1.5 "Severance Agreement" shall mean the Severance
Agreement entered into by and between SPI and Executive,
as amended and restated effective August 3, 2000.
3. Section 4.4 of the Original Agreement is amended to read
as follows:
4.4 Executive's interest in his Account shall
automatically become fully vested upon the termination of
Executive's employment with SPI under such circumstances
and at such time as would, under the terms of Executive's
Severance Agreement with SPI, entitle Executive to a
Severance Benefit as defined in paragraph 6.3.2 of the
Severance Agreement. This Section 4.4 shall apply whether
or not the Severance
Agreement remains in effect on the date of the
termination of Executive's employment with SPI. Paragraph
6 of the Severance Agreement is attached as an appendix
to this Agreement.
4. The appendix to the Original Agreement is deleted and the
appendix at the end of this agreement, titled "Appendix as Amended Effective
August 3, 2000," is substituted in its place.
IN WITNESS WHEREOF, this agreement is executed as of the date
first written above.
SIZELER PROPERTY INVESTORS, INC.
by-------------------------------
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Xxxxxx X. Xxxxxx
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NONELECTIVE DEFERRED COMPENSATION AGREEMENT
Appendix as Amended Effective August 3, 2000
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6. Change in Control.
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6.1 Definitions. For the purposes of this paragraph 6 and
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paragraph 7, the following definitions shall apply:
6.1.1 "Adverse Circumstances" shall mean any of the
following sets of circumstances surrounding the termination of Executive's
employment with SPI after a Change in Control:
6.1.1(A) The termination or notice of
termination of Executive's employment with SPI without Breach of Duty.
6.1.1(B) The assignment to Executive of any
duties inconsistent with his status as an executive of SPI, the removal of
Executive from the position he held before the Change in Control of SPI, or a
substantial diminution in the nature or status of Executive's responsibilities
from those in effect immediately before the Change in Control.
6.1.1(C) A reduction by SPI in Executive's
annual base salary as in effect on the date immediately before the Change in
Control or as the same may be increased from time to time.
6.1.1(D) Either the relocation of the
executive office of SPI or the relocation of Executive's individual office in
Kenner, Louisiana, to a location outside of the New Orleans Standard
Metropolitan Statistical Area (SMSA) so as to require Executive to be based
anywhere other than in the New Orleans SMSA except for required travel on the
business of SPI and its Subsidiaries to an extent substantially consistent with
Executive's present business travel obligations.
6.1.2 "Breach of Duty" shall mean a determination by
two-thirds of SPI's Continuing Directors of Executive's willful breach of duty
in the course of his employment that is demonstrably and materially injurious to
SPI, monetarily or otherwise, or that Executive neglected his employment duties.
For purposes of this paragraph 6, no act, or failure to act, on Executive's part
shall be deemed willful unless done, or omitted to be done, in bad faith and
without Executive's reasonable belief that the action or omission was in the
best interest of SPI. Notwithstanding the foregoing, Executive's employment
shall not be deemed to have terminated for Breach of Duty unless and until there
shall have been delivered to him a copy of a resolution duly adopted by the
requisite vote of the Continuing Directors at a meeting of the Continuing
Directors called and held for such purpose (after reasonable notice to Executive
and an opportunity for Executive, together with counsel, to be heard before the
Continuing Directors), finding that in the good faith opinion of the Continuing
Directors
Executive was guilty of conduct set forth above in this paragraph 6.1.2 and
specifying the particulars of such conduct in detail.
6.1.3 "Change in Control" shall mean:
6.1.3(A) On or after the date of execution
of this agreement, any person (which, for all purposes this paragraph 6, shall
include, without limitation, an individual, sole proprietorship, partnership,
unincorporated association, unincorporated syndicate, unincorporated
organization, trust, body corporate and a trustee, executor, administrator or
other legal representative) (a "Person") or any group of two or more Persons
acting in concert who or that becomes the beneficial owner, directly or
indirectly, of securities of SPI representing, or acquires the right to control
or direct, or to acquire through the conversion of securities or the exercise of
warrants or other rights to acquire securities, 25 percent or more of the
combined voting power of SPI's then outstanding securities; provided that for
the purposes of this agreement, (i) "voting power" means the right to vote for
the election of directors, and (ii) any determination of percentage of combined
voting power shall be made on the basis that all securities beneficially owned
by the Person or group or over which control or direction is exercised by the
Person or group that are convertible into securities carrying voting rights have
been converted (whether or not then convertible) and all options, warrants, or
other rights that may be exercised to acquire securities beneficially owned by
the Person or group or over which control or direction is exercised by the
Person or group have been exercised (whether or not then exercisable), and no
such convertible securities have been converted by any other Person and no such
options, warrants, or other rights have been exercised by any other Person and
provided further that "Person" shall not include SPI, any Subsidiary of SPI, any
employee benefit plan of SPI or any Subsidiary of SPI, any entity holding shares
of Common Stock organized, appointed, or established by SPI or any of its
Subsidiaries for or pursuant to the terms of any such plan, Xxxxxx X. Xxxxxx,
together with his spouse, descendants, and any trust established for the benefit
of Xxxxxx X. Xxxxxx, his spouse, and descendants or any one or more of them, or
SRC; or
6.1.3(B) at any time subsequent to the date
of execution of this agreement there shall be elected or appointed to the Board
any director or directors whose appointment or election to the Board or
nomination for election by SPI's stockholders was not approved by a vote of at
least a majority of the directors then in office who were directors on the date
of execution of this agreement or whose election or appointment or nomination
for election was previously so approved ("Continuing Directors"); or
6.1.3(C) a reorganization, merger,
consolidation, combination, corporate restructuring, or similar transaction (an
"Event"), in each case, in respect of which the beneficial owners of the
outstanding SPI voting securities immediately prior to such Event do not,
following such Event, beneficially own, directly or indirectly, more than 50
percent of the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of SPI and any resulting
Parent in substantially the same proportions as their ownership, immediately
prior to such Event, of the outstanding SPI voting securities.
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6.1.4 "Code" shall mean the Internal Revenue Code of
1986, as amended.
6.1.5 "Common Stock" shall mean the common stock, par
value $.01 per share, of SPI.
6.1.6 "Continuing Director" shall have the meaning
given in paragraph 6.1.3(B).
6.1.7 "Parent" shall mean any entity that directly or
indirectly through one or more entities owns or controls more than 50 percent of
the voting stock or Common Stock of SPI.
6.1.8 "Subsidiary" shall mean any entity 50 percent
or more of the equity securities of which is owned or controlled, directly or
indirectly, by SPI.
6.2 Effect of Change in Control. Paragraph 6.3 shall
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apply to determine SPI's and Executive's rights and obligations under this
agreement if Executive's employment with SPI terminates other than by reason of
death or Disability (as defined in paragraph 5.1.4) within 24 months following a
Change of Control of SPI and either (i) this agreement has not been terminated
before such termination of employment, or (ii) SPI had terminated this agreement
under paragraph 5.1.1(B) coincident with or following the Change in Control.
6.3 Rights and Obligations upon Termination of Employment
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Other Than by Reason of Death or Disability Following a Change in Control of
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SPI. The following provisions shall apply under the circumstances described in
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paragraph 6.2:
6.3.1 Should SPI terminate Executive's employment for
Breach of Duty or should Executive's employment with SPI terminate under
circumstances other than those described above as Adverse Circumstances, SPI
shall pay Executive's base salary through the date of termination of employment
at the rate in effect at the time notice of termination is given and shall pay
any amounts to which Executive is entitled at date of termination of employment
under any other compensation plans, programs, or agreements then in effect, and
SPI shall have no further obligations to Executive under this agreement.
6.3.2 Should Executive's employment with SPI
terminate under circumstances described above as Adverse Circumstances, then
Executive shall be entitled to the payments and benefits described in paragraphs
6.3.2(A) through 6.3.2(E) (the "Severance Benefit") and in paragraph 7, in lieu
of any other rights or benefits under this agreement.
6.3.2(A) SPI shall pay to Executive his
base salary through the date of termination of employment at the rate in effect
at the time notice of termination is given plus an amount of Executive's
normative bonus or award under the incentive plan in effect for the fiscal year
in which the date of termination occurs, which amount
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shall be proportionate to the part of the fiscal year elapsed by the date of
termination. If the incentive plan is based on a measure of performance such as
funds from operations, the normative bonus shall be based on projected
performance for the fiscal year in which the date of termination occurs, which,
for the purposes of this paragraph 6, shall be calculated by annualizing actual
performance measured to the date immediately preceding the date of termination
or, if the date of termination occurs in the same year as the Change in Control
and if it would result in a larger amount payable, by annualizing actual
performance measured to the date immediately preceding the Change in Control.
Payment shall be made no later than the fifth business day following the date of
termination. SPI shall also pay to Executive all other amounts to which
Executive is entitled at the date of termination of employment under any
compensation plans, programs, or agreements then in effect. For purposes of this
agreement, a "business day" means a day that is not a Saturday, Sunday, or legal
holiday on which banks may remain closed in New Orleans, Louisiana.
6.3.2(B) SPI shall also pay to Executive a
severance payment (the "Severance Payment") that will equal three times the
total of: (i) the base annual salary payable to Executive at the rate in effect
on the date of Change in Control or notice of termination of employment,
whichever is greater, (ii) one-half of the total amount that was, during the 24-
month period preceding the Change in Control or date of termination, whichever
is greater, credited to Executive as a nonelective deferral under any deferred
compensation arrangement between SPI and Executive, (iii) one-half of the total
amount of any bonuses or awards paid to Executive as an employee of SPI during
the 24-month period preceding the date of Change in Control or date of
termination, whichever is greater, including any bonus or award paid in the
forms of shares of Common Stock of SPI, but excluding any bonus or award paid in
the form of options relating to securities of SPI; and (iv) the amount SPI would
contribute for Executive for a full year to the qualified defined contribution
plans maintained by SPI as in effect immediately before the Change in Control
(or, if it would result in a larger amount payable, immediately before the date
of termination), assuming Executive's pay for the year were equal to the sum of
the base salary taken into account under clause (i) plus the amount of bonus or
award taken into account under clause (iii), and Executive elected to make the
maximum deferral contribution allowable under the plans for the year (without
regard to the actual deferral percentage test). For the purposes of the
preceding sentence, shares of Common Stock of SPI shall be taken into account at
their value on the date of the bonus or award as determined under the terms of
the plan under which the bonus or award was paid or, if the plan does not
provide for such a valuation, as determined in good faith by the Board of
Directors of SPI; and if Executive was not in the employ of SPI for a full 24
months preceding the date of termination, the amounts taken into account under
clauses (ii) and (iii) of the preceding sentence shall be, rather than one-half
of the 24 month total, the full amount paid or credited, as applicable, during
the 12 month period preceding the Change in Control or date of termination,
whichever is greater under the given case. SPI shall pay the Severance Payment
in a lump sum no later than the fifth business day following the date of
termination.
6.3.2(C) SPI shall also pay to Executive an
amount equal to all reasonable legal fees and expenses incurred by Executive as
a result of such termination (including all such fees and expenses, if any,
incurred in contesting or disputing any such
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termination or in seeking to obtain or enforce any right or benefit provided by
this agreement, whether or not Executive is successful).
6.3.2(D) SPI shall arrange to provide
Executive with life, disability, accident, and health insurance benefits
substantially similar to those Executive was receiving or entitled to receive
from SPI immediately before termination (including, if applicable, family health
insurance coverage); such provision shall continue until the expiration of the
36-month period following the date of termination of Executive's employment or
until, if earlier, the date upon which Executive becomes eligible for comparable
benefits in connection with subsequent employment. If such coverage is not
available under plans maintained by SPI, SPI shall reimburse Executive for his
reasonable cost of securing comparable coverage, up to a maximum of $30,000 per
year for health insurance coverage and $20,000 per year for all other coverage;
to the extent such reimbursement results in taxable income for Executive in
excess of the taxable income Executive would have recognized upon receipt of the
underlying benefits as an employee of SPI (the "Excess Taxable Income"), SPI
shall pay to Executive an additional amount equal to the income and payroll tax
liability Executive incurs with respect to the Excess Taxable Income and his
receipt of the additional amount. SPI shall pay the additional amount with
respect to Excess Taxable Income for a given calendar year no later than the
January 10 following that year.
6.3.2(E) SPI shall pay or reimburse
Executive for his reasonable expenses not in excess of $20,000 incurred in his
employment search, which may include rental of an office, secretarial support,
photocopying, telephone, and other miscellaneous expenses and fees of an
employment search advisor; provided however, SPI shall not pay or reimburse
Executive for expenses incurred after the earlier of the month in which
Executive secures employment and the 24/th/ month following the date of
termination.
6.4 Termination of Agreement; Survival of Certain Terms.
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To the extent it has not terminated earlier under paragraph 5.1.1(B), this
agreement shall terminate on the date of the termination of Executive's
employment under circumstances to which this paragraph 6 applies, subject to the
survival of the provisions of paragraphs 6.3, 8, 10, and 15.
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