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EXHIBIT 10.4
AMENDED AND RESTATED EMPLOYMENT
AND CONSULTING AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AND CONSULTING AGREEMENT,
dated as of October 17, 1995, by and between U.S. Home Corporation (the
"Company"), and Xxxxx Xxxxxxxxxx (the "Executive").
WHEREAS, the Company and the Executive are parties to an
Employment and Consulting Agreement, dated May 12, 1986, as amended by (i)
the First Amendment to Employment and Consulting Agreement dated February
8, 1990, (ii) the Second Amendment to Employment and Consulting Agreement,
dated December 6, 1990, and (iii) the Third Amendment to Employment and
Consulting Agreement, dated May 25, 1993 (collectively, the "Agreement").
WHEREAS, the Company and the Executive desire to amend
and restate the Agreement as hereinafter provided.
WHEREAS, Section 7(c) of the Agreement permits such
amendment by written agreement of both parties.
NOW, THEREFORE, the Company and the Executive agree to
amend and restate the Agreement as follows:
1. Employment and Duties. The Company shall employ the
Executive, and the Executive shall be employed by the Company, as
President, Co-Chief Executive Officer and Chief Operating Officer at the
Company's headquarters in Houston, Texas (or such other location as shall
be mutually satisfactory to the Executive and the Company) for the term of
this Agreement. In these capacities, the Executive shall devote
substantially all of his business time and energies to the business of the
Company and shall perform such services as shall from time to time be
assigned to him by the Board of Directors of the Company.
2. Term. The term of the Executive's employment hereunder
shall continue until June 20, 1999; provided, however, that, unless either
party otherwise elects by notice in writing delivered to the other at least
90 days prior to June 20, 1999, or any subsequent anniversary of June 20,
1999, such term shall be automatically renewed for successive one-year
terms unless sooner terminated by the Executive's voluntary resignation or
otherwise terminated pursuant to the terms of this Agreement (the
"Employment Term").
3. Compensation and Benefits.
(a) Compensation. During each calendar year of the
Employment Term, the Company shall pay the Executive: (i) a base salary
at a rate of $415,000 per year (the "Base Salary"), payable in
substantially equal biweekly installments, and (ii) any cash bonus to which
he is entitled pursuant to the provisions of Appendix A hereto, payable as
75
promptly as practicable after the end of each such calendar year, but
in any event by April 15 of the following year. Notwithstanding the
foregoing, if the Executive's applicable employee remuneration (as defined
in Section 162(m) of the Internal Revenue Code of 1986, as amended (the
"Code")) for any taxable year would exceed the higher of $1 million or the
maximum amount deductible by the Company under Section 162(m) for such
taxable year, the amount otherwise payable shall be reduced to the higher
of $1 million or the maximum amount deductible under Section 162(m) and
the excess shall be deferred until the expiration of the Employment Term
and shall be payable in a cash lump sum on April 16 of the first year of
the Consultation Period. The deferred compensation shall accrue interest
at the same rate charged the Company from time to time under the Credit
Agreement, dated as of September 29, 1995, among the Company, the
First National Bank of Chicago, as agent, and certain lenders named therein,
as amended, restated, supplemented or otherwise modified from time to
time, or any successor facility. The Executive's Base Salary and bonus
shall be reviewed at least annually by the Board of Directors of the
Company, or pursuant to its delegation, and (i) at a minimum, the Board
shall increase the Base Salary annually commencing with the 1996 calendar
year by an amount determined by multiplying the current Base Salary by the
percentage increase in the Consumer Price Index -- U.S. City Average
published by the Bureau of Labor Statistics of the United States Department
of Labor (or if that Index is no longer published, by any substantially
equivalent successor thereto) (the "Consumer Price Index") in the preceding
calendar year and (ii) the Board may increase the bonus from time to time.
(b) Stock Options. On October 17, 1995, the
Executive was granted an option (the "Option") to purchase 50,000 shares of
the Company's common stock, $.01 par value per share (the "Common Stock"),
pursuant to the Company's 1993 Employee's Stock Option Plan. Such Option
shall be an "incentive stock option" within the meaning of Section 422 of
the Code to the extent permitted by Section 422(d) of the Code; to the
extent not permitted by Section 422(d), the remaining portion of the Option
shall be a nonqualified stock option. The Option shall be for a term of ten
years from, and shall be exercisable immediately at the fair market value
of the Common Stock on, the date of grant.
(c) Retirement Benefit.
(i) In consideration of the Executive's past
services to the Company, the Executive shall be entitled to a retirement
benefit, payable monthly for his life, in an amount equal to 50 percent
of his highest monthly Base Salary during the Employment Term. Such
payments shall commence on the first day of the month coincident with
or next following the later of the Executive's attainment of age 58 or
the end of the Employment Term (the "Commencement Date"); provided,
however, that if the Employment Term terminates prior to his attainment
of age 58, the Executive may elect by written notice to the Company to have
such payments commence on the first day of any month after such
termination of employment (the "Early Commencement Date") in a monthly
amount equal to the monthly amount that the Executive would have received
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at the Commencement Date, reduced by one-third of one percent (.33%) per
month for each month by which the Early Commencement Date precedes the
Commencement Date. The amount of each payment hereunder shall be
increased on each January 1 following the Early Commencement Date or
Commencement Date, as applicable, by an amount determined by
multiplying the amount of each monthly payment made in the preceding year
by the percentage increase, if any, in the cost of living from the
preceding January 1, as reflected by the Consumer Price Index. The
Executive's election to have his retirement benefit payments commence on
the Early Commencement Date shall not affect the Company's obligation to
pay consulting fees to the Executive in accordance with Section 4 hereof.
The retirement benefit shall be an
unconditional, but unsecured, general credit obligation of the Company to
the Executive, and nothing contained in this Agreement, and no action
taken pursuant to it, shall create or be construed to create a trust
of any kind between the Company and the Executive. The Executive shall
have no right, title or interest whatever in or to any investments which
the Company may make (including, but not limited to, an insurance policy
on the life of the Executive) to aid it in meeting its obligations hereunder.
(ii) From time to time, the Company shall
make such contributions to the trust established under the Trust Agreement
dated as of December 18, 1986 (the "1986 Trust") between the Company, as
grantor, and Xxxxxxx X. Xxxxxxxx, as successor trustee, to provide a
sufficient reserve for the discharge of its obligation to pay the retirement
benefit to the Executive as provided in clause (i) of this Section 3(c) and
clauses (ii) and (iii) of Section 5(a) hereof.
(d) Expense Reimbursement. The Company shall promptly
pay, or reimburse the Executive for, all ordinary and necessary business
expenses incurred by him in the performance of his duties hereunder,
provided that the Executive properly accounts for them in accordance with
Company policy.
(e) Other Benefit Plans, Fringe Benefits, and Vacations.
(i) The Executive shall be eligible to participate
in each of the Company's present employee benefit plans, policies or
arrangements and any such plans, policies or arrangements that the
Company may maintain or establish during the Employment Term and receive
all fringe benefits and vacations for which his position makes him eligible
in accordance with the Company's usual policies and the terms and
provisions of such plans, policies or arrangements.
(ii) The Company shall not terminate or change, in
such a way as to adversely affect the Executive's rights or reduce his
benefits, any employee benefit plan, policy or arrangement now in
effect or which may hereafter be established and in which the Executive is
eligible to participate, including, without limitation, the Company's
profit sharing, life insurance, disability and stock option plans, unless
a plan, policy or arrangement providing the Executive with at least
equivalent rights and benefits has been established.
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(iii) From and after the last day of the Employment
Term, the Executive shall be entitled to participate in each of the
Company's employee benefit plans, policies or arrangements which provide
medical coverage and similar benefits to the Company's executive officers
(the "Company Medical Plan") on the same basis as the Company's other
executive officers. The Company shall bear the cost of medical coverage and
benefits during the Consultation Period (as defined below); thereafter,
the Executive shall bear such cost. After the Executive is eligible for
Medicare and the Company becomes a secondary payor (or its equivalent)
pursuant to Medicare or other applicable law, the Company shall provide
secondary medical coverage and benefits. If coverage under the Company
Medical Plan is not possible under the terms of any insurance policy
or applicable law following the Employment Term, the Company shall provide
the Executive with coverage equivalent to that provided to the Company's
other executive officers under a policy or arrangement acceptable to the
Executive. In the event of the Executive's death before the end of the
Consultation Period, the Company shall continue to provide such primary and
secondary medical coverage, as applicable, and benefits to the Executive's
spouse and dependents for the remainder of the Consultation Period on the
same basis as provided to the Company's other executive officers.
4. Consultation Period. From and after the last day of
the Employment Term and for a period of five years thereafter (the
"Consultation Period"), the Executive shall serve as a consultant to the
Company with respect to such business matters and at such times (not more
than four days per month and not more than two consecutive days per week)
as the Company may reasonably request within Xxxxxx County, Texas,
provided, however, that if the Consultant does not reside in Xxxxxx County,
he may perform his consulting duties hereunder at his then place of
residence and shall be required to come to Xxxxxx County not more than one
day in each calendar month. During the Consultation Period, the Company
shall pay the Executive (in addition to any other amounts to which he is
entitled pursuant to this Agreement) a consulting fee, in substantially
equal biweekly installments, at the rate of $134,260 per year increased by
an amount determined by multiplying $134,260 by the percentage increase, if
any, in the cost of living between January 1, 1995 and the January 1
immediately preceding the date of commencement of the Consultation Period,
as reflected by the Consumer Price Index. The amount of the consulting fee
shall be increased on each January 1 during the Consultation Period by an
amount determined by multiplying the amount of the consulting fee paid in
the preceding year by the percentage increase, if any, in the cost of
living from the preceding January 1, as reflected by the Consumer Price
Index. During the Consultation Period, the Executive shall not be required
to undertake any assignment inconsistent with the dignity, importance and
scope of his prior positions or with his physical and mental health at the
time. It is expressly understood between the parties that during the
Consultation Period, the Executive shall be an independent contractor and
shall not be subject to the direction, control, or supervision of the
Company. The provisions of Sections 5, 6 and 7 hereof shall continue to
apply to the Executive during the Consultation Period.
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5. Termination.
(a) Death and Disability.
(i) The Executive's employment hereunder shall
terminate upon his death or upon his becoming Totally Disabled. For
purposes of this Agreement, the Executive shall be "Totally Disabled" if
he is physically or mentally incapacitated so as to render him incapable of
performing his usual and customary duties as an executive (for the Company
or otherwise). The Executive's receipt of Social Security disability
benefits shall be deemed conclusive evidence of Total Disability for
purposes of this Agreement; provided, however, that in the absence of his
receipt of such Social Security benefits, the Board of Directors of the
Company may, in its sole discretion, but based upon appropriate medical
evidence, determine that the Executive is Totally Disabled.
(ii) In the event that the Executive is Totally
Disabled before his retirement benefit pursuant to Section 3(c) hereof has
commenced to be distributed (whether or not he is in the employ of the
Company at the time he is so Totally Disabled), such benefit shall commence
to be distributed to him on the first day of the month next following his
Total Disability, as if such payments had commenced at his Commencement
Date. In the event of the Executive's death (while Totally Disabled
or otherwise) after his retirement benefit has commenced to be distributed
pursuant to Section 3(c) hereof or subparagraph (ii) above, as applicable,
the Company shall continue to pay such retirement benefit to his Beneficiary
for her life. If the Executive's retirement benefit pursuant to Section 3(c)
hereof has not commenced to be distributed on the date of his death, such
benefit shall commence to be distributed to his Beneficiary for her life on
the first day of the month next following his date of death, as if such
payments had commenced at his Commencement Date. For purposes of this
Agreement, the Executive's "Beneficiary" shall be deemed to be his spouse;
if his spouse predeceases him (or if he is not married at the time of his
death), his Beneficiary shall be deemed to be his estate which shall
receive, in lieu of the payments otherwise payable to the Executive's spouse
hereunder, a lump sum cash payment equal to the actuarial present value
(determined on the basis of a 6 percent per annum interest rate assumption
and no decrement for mortality) of the payments that would have been
made to a spouse for her life, assuming that such spouse was three years
younger than the Executive on his date of death. If the Executive
predeceases his spouse, upon her death, a lump sum cash payment equal to
the amount of any cash and the present value of all property (including
any annuity contracts) owned by the 1986 Trust as of the date of her
death shall be paid by the Company to his spouse's estate or any
beneficiary or beneficiaries designated in her last will and testament
as soon as practicable after such calculation is completed. The actuarial
present value of any annuity contracts shall be calculated by the insurance
company that issued such contract or, if any such insurance company cannot
supply such present value, by an enrolled actuary.
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(b) For Cause. The Executive's employment hereunder may
be terminated for Cause. For purposes of this Agreement, the term
"Cause" shall mean (i) the Executive's continuing willful failure to
perform his duties hereunder (other than as a result of total or partial
incapacity due to physical or mental illness), (ii) gross negligence or
malfeasance by the Executive in the performance of his duties hereunder,
(iii) an act or acts on the Executive's part constituting a felony under
the laws of the United States or any state thereof which results or was
intended to result directly or indirectly in gain or personal enrichment
by the Executive at the expense of the Company, or (iv) breach of the
provisions of Section 6(b) hereof.
(c) Without Cause. If the Executive's employment or his
retention as a consultant hereunder is terminated without Cause, as soon
as practicable (but not later than 30 days) after such termination, he
shall receive a lump sum cash payment equal to the sum of: (i) an amount
equal to his highest monthly Base Salary during the Employment Term prior
to such termination multiplied by the number of months remaining in the
Employment Term (but by not less than thirty-six months if such
termination occurs during the Employment Term); (ii) if such termination
occurs during the Employment Term, an amount equal to the bonuses paid
pursuant to Section 3(a)(ii) hereof and Appendix A hereto or otherwise,
whether or not deferred, in respect of the most recently completed three
calendar years; (iii) an amount equal to the actuarial present value
(determined on the basis of a 6 percent per annum interest rate assumption
and no decrement for mortality) of the retirement benefit payments payable
to him under Section 3(c), commencing on the Commencement Date (or if such
payments have commenced, such actuarial present value of the remaining
payments); and (iv) an amount equal to the consulting fees due him under
Section 4 for the term or remainder of the Consultation Period. For
purposes of this Agreement, the Executive will be deemed to be terminated
without Cause upon the (i) failure to elect the Executive to the office of
chairman and chief executive officer of the Company in the event of a
vacancy in such office for any reason and (ii) resignation of the Executive
within 180 days of such vacancy.
(d) Change in Control.
(i) If a Change in Control Event (as defined in
Appendix B hereto) occurs, the Executive shall (A) if he so elects by
written notice to the Company within 360 days after such Change in
Control Event, be entitled to terminate his employment, if not already
terminated by the Company, and, in either event, receive the a mounts set
forth in paragraph (c) above (excluding the amount of the retirement
benefit described in Section 5(c)(iii)) within the time period specified
in subparagraph (iii) below, as if the Company had terminated his employment
without Cause, and (B) if he so elects by written notice to the Company
within 360 days after the occurrence of such Change in Control Event,
cause the Company to purchase the Executive's principal residence at its
fair market value. For purposes of this Agreement, such fair market value
shall be determined by two independent real estate firms, one of which
shall be selected by the Executive and one by the Company. If such real
estate firms fail to agree on such fair market value, the two firms so
selected shall select a third firm mutually acceptable to them and such
third firm's determination of fair market value shall be binding for all
purposes.
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(ii) Notwithstanding anything to the contrary herein,
if the aggregate amounts payable pursuant to subparagraph (i) of paragraph
(d) hereof would cause any payment under such subparagraph (i) to be subject
to an excise tax as an "excess parachute payment" under Section 4999
of the Code, such aggregate amounts payable hereunder shall be reduced by
the smallest amount necessary to ensure that no payment hereunder shall be
so treated under such Section 4999. Prior to effecting such reduction,
the Company shall give the Executive 30 days' written notice of the fact,
amount and basis of such reduction, as well as a determination of the
shortest period of time over which such aggregate amounts may be paid and
not be treated as "excess parachute payments." The Executive shall then
have 30 days within which to elect in writing to (A) receive a lump sum
payment, reduced pursuant to the first sentence hereof, or (B) receive
the aggregate amounts payable pursuant to subparagraph (i) hereof in annual
installments over the time period set forth in the Company's notice. In
making the determinations called for in this subparagraph (ii), the parties
hereto shall rely conclusively on (1) the opinion of Xxx-Xxxxxxx, or such
other consulting firm as the Company shall designate (with the written
consent of the Executive) within one year of the date hereof, as to the
amount of the Executive's compensation which constitutes "reasonable
compensation" for purposes of Section 280G of the Code, and (2) the opinion
of Kwasha Lipton, or such other actuarial firm as the Company shall designate
(with the written consent of the Executive) within one year of the date
hereof, as to any present value calculations under Section 280G of the Code.
The Company shall bear all costs associated with obtaining such opinions.
(iii) The amounts payable pursuant to this paragraph
(d) shall be paid (or commence to be paid) to the Executive not later than
10 days after he notifies the Company under subparagraph (ii) above whether
he wishes to receive such amounts in a lump sum or in installments or if no
notice is given by the Company under subparagraph (ii) above, within 30 days
after the Executive gives notice to the Company under subparagraph (i) above.
(iv) In addition to all other rights granted the
Executive under this paragraph (d), if a Control Change (as defined in
paragraph (c) of Appendix B hereto) occurs, the Executive shall be entitled
to elect to terminate his employment upon written notice to the Company,
effective not more than 10 days after such an election. In such event, (A)
the Consultation Period shall commence immediately upon termination of
employment and shall cease five years thereafter, (B) the Executive shall
be entitled to elect at any time to have payment of his retirement benefit
commence on the Early Commencement Date in an amount determined in accordance
with the provisions of Section 3(c) hereof, and (C) the Company shall
promptly, but not later than 10 days after such election, transfer sufficient
assets to the 1986 Trust so that the assets of the 1986 Trust are then
sufficient to discharge the obligations for the consulting fees and
retirement benefits due him in full.
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6. Covenants.
(a) Confidentiality. The Executive acknowledges
that he has acquired and will acquire confidential information respecting
the business of the Company. Accordingly, the Executive agrees that,
without the written consent of the Company as authorized by its Board of
Directors, he will not, at any time, willfully disclose any such confidential
information to any unauthorized third party with an intent that such
disclosure will result in financial benefit to the Executive or to any
person other than the Company. For this purpose, information shall be
considered confidential only if such information is uniquely proprietary to
the Company and has not been made publicly available prior to its disclosure
by the Executive.
(b) Competitive Activity. Until the end of the
Consultation Period, the Executive shall not, without the consent of the
Board of Directors of the Company, directly or indirectly, knowingly
engage or be interested in (as owner, partner, shareholder, employee,
director, officer, agent, consultant or otherwise), with or without
compensation, any business which (i) is in competition with any line of
business being actively conducted by the Company or any of its
affiliates or subsidiaries during the Employment Term or Consultation Period,
or (ii) shall hire any person who was employed by the Company or any of its
affiliates or subsidiaries within the six-month period preceding such hiring,
except for any employee whose annual rate of compensation is not in excess
of $55,000. Nothing herein, however, shall prohibit the Executive from
acquiring or holding not more than one percent of any class of publicly
traded securities of any such business.
(c) Remedy for Breach. The Executive acknowledges
that the provisions of this Section 6 are reasonable and necessary for the
protection of the Company and that the Company will be irrevocably damaged
if such covenants are not specifically enforced. Accordingly, the Executive
agrees that, in addition to any other relief to which the Company may be
entitled, the Company shall be entitled to seek and obtain injunctive relief
(without the requirement of any bond) from a court of competent jurisdiction
for the purposes of restraining the Executive from any actual or threatened
breach of such covenants. Notwithstanding anything to the contrary herein,
the provisions of this Section 6 shall cease to apply to the Executive if
his employment hereunder terminates without Cause or following a Change in
Control Event. In addition, in the event that the Executive breaches the
provisions of this Section 6 during the Consultation Period, the Company's
sole remedy shall be to terminate the Executive for Cause.
7. Miscellaneous.
(a) Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware
applicable to agreements made and to be performed in that State.
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(b) Notices. Any notice, consent or other
communication made or given in connection with this Agreement shall be in
writing and shall be deemed to have been duly given when delivered by
United States registered or certified mail, return receipt requested,
to the parties at the following addresses or at such other address as a
party may specify by notice to the other.
To the Executive:
2 Glendennig
Xxxxxxx, Xxxxx 00000
To the Company:
U.S. Home Corporation
0000 Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Secretary
(c) Entire Agreement; Amendment. This Agreement
shall supersede any and all existing agreements between the Executive and
the Company or any of its affiliates or subsidiaries relating to the terms of
his employment. It may not be amended except by a written agreement signed
by both parties.
(d) Waiver. The failure of a party to insist upon
strict adherence to any term of this Agreement on any occasion shall not be
considered a waiver thereof or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this
Agreement.
(e) Assignment. Except as otherwise provided in
this paragraph, this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, representatives,
successors and assigns. This Agreement shall not be assignable by the
Executive, and shall be assignable by the Company only to any corporation
or other entity resulting from the reorganization, merger or
consolidation of the Company with any other corporation or entity or any
corporation or entity to which the Company may sell all or substantially all
of its assets, and it must be so assigned by the Company to, and accepted
as binding upon it by, such other corporation or entity in connection with
any such reorganization, merger, consolidation or sale.
(f) Litigation Costs. In the event that the
Executive shall successfully prosecute a judicial proceeding to enforce any
provision of this Agreement, in addition to any other relief awarded the
Executive by the court in such action, the parties agree that the judgment
rendered shall award the Executive all of his attorneys fees, disbursements
and other costs incurred by the Executive in prosecuting such suit.
(g) Separability. If any provision of this
Agreement is invalid or unenforceable, the balance of the Agreement shall
remain in effect, and if any provision is inapplicable to any person or
circumstance, it shall nevertheless remain applicable to all other persons
and circumstances.
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IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement and Appendices A and B thereto as evidence of their adoption
this 17th day of October, 1995.
U.S. HOME CORPORATION
By \s\ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and
Co-Chief Executive
Officer
EXECUTIVE:
By \s\ Xxxxx Xxxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxxx
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Appendix A
This Appendix A is attached to and shall form a part of
the Amended and Restated Employment and Consulting Agreement, dated October
17, 1995, by and between U.S. Home Corporation (the "Company"), and Xxxxx
Xxxxxxxxxx (the "Executive").
(a) The Executive's bonus, if any, for each calendar
year during the Employment Term commencing with the 1995 calendar year shall
be an amount equal to: one-half (1/2) of one percent (1%) of the first
$10,000,000 of the Company's Pre-Tax Income for such year, plus
(i) three-fourths (3/4) of one percent (1%) of
the next $10,000,000 of the Company's Pre-Tax Income for such year, plus
(ii) one percent (1%) of the Company's Pre-Tax
Income for such year in excess of $20,000,000.
(b) In the event that the Executive's employment
hereunder is terminated for any reason prior to the end of a calendar year,
including the expiration of the Employment Term, his bonus for such year
shall be an amount, estimated in good faith by the Board of Directors of
the Company based on reasonable assumptions and projections, but without
the benefit of the report referred to in paragraph (c) below, equal to
the bonus otherwise determined pursuant to this Appendix A, multiplied
by a fraction, the numerator of which is the number of calendar months
during such year in which the Executive was employed by the Company for
at least one business day, and the denominator of which is 12.
(c) For purposes of this Agreement, the Company's
"Pre-Tax Income" for any year shall mean the income of the Company and its
consolidated and unconsolidated subsidiaries for such year, as reported by
the Company and certified by its independent certified public accountants,
except that no deduction shall be made for the bonus payable pursuant to
this Appendix A and Section 3(a)(ii) hereof for such year or for Federal
income and State and local franchise, gross receipts, or income taxes.
U.S. HOME CORPORATION
By \s\ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and Co-Chief
Executive Officer
EXECUTIVE:
By \s\ Xxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
00
Xxxxxxxx X
This Appendix B is attached to and shall form a part of
the Amended and Restated Employment and Consulting Agreement, dated October
17, 1995, by and between U.S. Home Corporation (the "Company"), and Xxxxx
Xxxxxxxxxx (the "Executive").
(a) For purposes of this Agreement, a "Change in Control
Event" shall occur when a "Control Change" (as defined in paragraph (c)
below) is followed within two years by a "Material Change" (as defined in
paragraph (b) below).
(b) A "Material Change" shall occur if:
(i) the Executive's employment hereunder is
terminated without Cause;
(ii) the Company makes any change in the Executive's
functions, duties or responsibilities from the position that the Executive
occupied on the date hereof or, if this Agreement has been renewed or
extended, the date of the last renewal or extension, but only if such
change would cause:
(A) the Executive to report to anyone other
than the Chairman of the Board of Directors who is also the Co-Chief
Executive Officer,
(B) the Executive to no longer be the President,
Co-Chief Executive Officer and Chief Operating Officer of the Company,
(C) even if the Executive maintains the
positions of President, Co-Chief Executive Officer and Chief Operating
Officer, his responsibilities to be reduced from those in effect on the
date hereof or the date of the last renewal or extension of this Agreement,
as applicable, or to be no longer commensurate with those of the Co-Chief
Executive Officer and Chief Operating Officer of a company with gross annual
sales of at least $800 million, or
(D) the Executive's position with the Company
to become one of lesser importance or scope;
(iii) the Company assigns or reassigns the Executive
(without his written permission) to another place of employment which is more
than 10 miles from his place of employment on the date hereof or the date of
the last renewal or extension of this Agreement, as applicable, and which
is not the corporate headquarters of the Company; or
(iv) the Company reduces the Executive's Base Salary
or otherwise breaches the terms of this Agreement.
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(c) A "Control Change" shall occur if:
(i) a report on Schedule 13D is filed with the
Securities and Exchange Commission pursuant to Section 13(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") disclosing that any
person (within the meaning of Section 13(d) of the Exchange Act), other
than the Company (or one of its subsidiaries) or any employee benefit plan
sponsored by the Company (or one of its subsidiaries), is the beneficial
owner, directly or indirectly, of 15 percent or more of the combined voting
power of the then-outstanding securities of the Company;
(ii) any person (within the meaning of Section 13(d)
of the Exchange Act), other than the Company (or one of its subsidiaries) or
any employee benefit plan sponsored by the Company (or one of its
subsidiaries), shall purchase securities pursuant to a tender offer or
exchange offer to acquire any common stock of the Company (or securities
convertible into common stock) for cash, securities or any other
consideration, provided that after consummation of the offer, the person
in question is the beneficial owner (as such term is defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of 15 percent or more of
the combined voting power of the then-outstanding securities of the
Company (as determined under paragraph (d) of Rule 13d-3 under the Exchange
Act, in the case of rights to acquire common stock);
(iii) the stockholders of the Company shall approve
(A) any consolidation or merger of the Company (1) in which the Company is
not the continuing or surviving corporation, (2) pursuant to which shares
of common stock of the Company would be converted into cash, securities or
other property, or (3) with a corporation which prior to such consolidation
or merger owned 15 percent or more of the cumulative voting power of the
then-outstanding securities of the Company, or (B) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all the assets of the Company; or
(iv) there shall have been a change in a majority of
the members of the Board of Directors of the Company within a 12-month
period, unless the election or nomination for election by the Company's
stockholders of each new director during such 12-month period was approved
by the vote of two-thirds of the directors then still in office who were
directors at the beginning of such 12-month period.
(d) Notwithstanding the foregoing, the issuance by the
Company of shares of common stock of the Company, $.01 par value per share,
convertible preferred stock of the Company, $.10 par value per share, and
Class B Warrants aggregating 15% or more of the combined voting power of
the Company to any one beneficial owner (as such term is used in Rule
13d-3 under the Securities Exchange Act of 1934, as amended) who is a
holder of claims or interests pursuant to the First Amended Consolidated
Plan of Reorganization of the Company and certain of its affiliates, as
modified, filed with the United States Bankruptcy Court for the Southern
District of New York (the "USH Plan") in exchange for such claims or
interests shall not be deemed to constitute a Control Change unless such
87
person subsequently increases its percentage beneficial ownership above
the percentage amount received pursuant to the USH Plan. Shares of
common stock, preferred stock and Class B Warrants acquired pursuant to
the USH Plan by creditors or stockholders for their claims or interests,
though less than 15% of the combined voting power of the Company, shall
be included in determining whether a person through acquisition of
additional shares, whether through purchase, exchange or otherwise,
on or after the Effective Date has subsequently become the beneficial
owner of 15% or more of the combined voting power of the Company, which
shall, in such event, constitute a Control Change.
U.S. HOME CORPORATION
By \s\ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and_____
Co-Chief Executive
Officer
EXECUTIVE:
By \s\ Xxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxxx
