Senior Executive Officer
REGENCY CENTERS CORPORATION
STOCK RIGHTS AWARD AGREEMENT
1993 LONG-TERM OMNIBUS PLAN, AS AMENDED
THIS AGREEMENT, dated as of the 17th day of December, 2002 (the "Grant Date"),
by and between Xxxxxx X. Xxxxx (the "Employee") and Regency Centers Corporation
(the "Company").
WITNESSETH THAT:
WHEREAS, the Company maintains the Regency Realty Corporation 1993
Long-Term Omnibus Plan, as amended (the "Plan"), which is incorporated into and
forms a part of this Agreement, for the benefit of employees of the Company and
its affiliates; and
WHEREAS, the Company's Compensation Committee (the "Committee") has
awarded the Employee a Stock Rights Award under the Plan;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the
Employee as follows:
1. Award. Subject to the terms of this Agreement and the Plan, the
Employee is hereby granted the right to receive 52,766 shares of the
Company's common stock (the "Shares") upon satisfaction of the
conditions described herein.
2. Vesting.
(a) Subject to the terms hereof, one-third of the Shares (the
"Continuous Service Shares") shall vest as follows:
(i) 25% of the Continuous Service Shares will vest on the
first anniversary of the Grant Date;
(ii) an additional 25% of the Continuous Service Shares will
vest on the second anniversary of the Grant Date;
(iii) an additional 25% of the Continuous Service Shares will
vest on the third anniversary of the Grant Date; and
(iv) and an additional 25% of the Continuous Service Shares
will vest on the fourth anniversary of the Grant Date.
(b) Subject to the terms hereof, two-thirds of the Shares (the
"Performance Shares") shall vest on the eighth anniversary of
the Grant Date unless sooner vested by reason of the Company
achieving the annual performance criteria set forth on Exhibit
A.
(c) Except as otherwise provided in this Agreement, any other
agreement, or by the Committee, the Employee's right to receive
any Shares that are not vested on the
date the Employee terminates employment with the Company shall
be forfeited on such date.
(d) During the period between the Grant Date of the Shares and the
date such Shares vest, dividends that would have been paid with
respect to the Shares had such Shares been issued and
outstanding ("Stock Rights DEs") will be held by the Company, or
a depository appointed by the Committee, for the Employee's
account. Such Stock Rights DE amounts shall be deemed invested
in shares of Company common stock on each December 31 prior to
the date of vesting, which shall, until the Shares to which they
relate vest, be treated as Shares for purposes of the preceding
sentence. Subject to Section 3(b), all Stock Rights DEs so held
shall initially be subject to forfeiture, but shall become non-
forfeitable and shall be distributed at the same times, and in
the same proportion, as the Shares to which they relate become
vested.
(e) If the Employee's employment with the Company terminates by
reason of death, Disability or Retirement, (i) any non-vested
Continuous Service Shares and related Stock Rights DEs shall
vest on the date of such termination, and (ii) Employee shall
continue to have the right to receive Performance Shares and
related Stock Rights DEs during the three years following the
date of such termination, but only to the extent that
Performance Shares would have vested had Employee's employment
not terminated. If the Company (or any successor thereto)
terminates the Employee's employment for a reason other than
Cause on or after a Change of Control, any non-vested Shares
(whether Continuous Service Shares or Performance Shares) and
related Stock Rights DEs shall vest immediately on such date.
(f) Notwithstanding the foregoing, the Employee will not be
considered to have terminated employment for purposes of
subsections (c) or (e) if: (1) the Employee directly transfers
from the Company's employment to the employment of any
Affiliate, or (2) the Employee becomes employed by a successor
of the Company on or immediately following a Change of Control
transaction.
3. Issuance of Shares.
(a) Subject to Section 3(b) below, as soon as practicable after any
Shares and related Stock Rights DEs vest, the Company shall
issue to the Employee in the form of whole shares of Company
common stock, a number of shares equal to the number of vested
Shares, plus the number of shares with respect to which the
Stock Rights DEs were deemed invested pursuant to Section 2(d).
Any fractional Shares or Stock Rights DEs shall be settled in
cash.
(b) Notwithstanding the foregoing, if the Employee is eligible to
participate in and has made an effective election under the
Amended and Restated Regency Centers Deferred Compensation Plan,
or any successor plan thereto (the "Deferred Compensation Plan")
to defer receipt of any of the Shares and Stock Rights DEs
(including any fractional Shares or Stock Rights DEs) that
otherwise would be
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issued or paid to the Employee pursuant to the terms hereof,
then the issuance of such Shares and related Stock Rights DEs
(and the cash payment of any fractional Shares or Stock Rights
DEs) to the Employee shall be deferred until the date so elected
by the Employee. If such a deferral is made, the Employee's
rights to any amounts that are deferred shall be governed
exclusively by the terms and conditions of the Deferred
Compensation Plan and any agreements entered into thereunder.
4. Withholding. All awards and payments under this Agreement are subject
to withholding of all applicable taxes. At the election of the
Employee, and with the consent of and subject to any requirements
imposed by the Committee, (a) the minimum tax withholding required by
applicable law may be satisfied through the surrender of Shares the
Employee already owns or to which the Employee is otherwise entitled
hereunder, and (b) any additional withholding taxes due may be
satisfied through the surrender of Shares the Employee has owned for at
least six (6) months.
5. No Rights as a Stockholder. Nothing in this Agreement shall be
construed to give the Employee any rights as a stockholder of the
Company prior to the vesting of any Shares and issuance of stock
certificates with respect thereto. The Employee has no rights to vote
or receive dividends on unvested Shares; provided, however, that the
Employee shall be entitled to receive the dividend benefits provided
hereunder. Unvested Shares will not be issued to the Employee and will
not be deemed to be outstanding.
6. Transferability. This award is not transferable except as designated by
the Employee by will or by the laws of descent and distribution.
7. Adjustment of Award. The number and type of Shares under this award are
subject to adjustment pursuant to Section 4.3 of the Plan.
8. Forfeiture Provisions. If the Employee violates any confidentiality or
non-competition provisions to which the Employee is subject, this award
and any rights to receive Shares hereunder shall be forfeited.
9. Definitions. Capitalized terms used herein that are not defined below
shall have the meaning given under the Plan.
(a) "Board" means the Board of Directors of the Company.
(b) "Cause" means
(i) the willful and substantial failure or refusal of the
Employee to perform duties assigned to the Employee
(unless the Employee shall be ill or disabled), under
circumstances where the Employee would not have Good
Reason to terminate employment, which failure or refusal
is not remedied by the Employee within 30 days after
written notice from the Company's Chief Executive
Officer or Chief Operating Officer or the Board of such
failure or refusal (for purposes of clarity, the
Employee's poor performance shall not constitute willful
and substantial failure or refusal to
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perform duties assigned to the Employee, but the failure
to report to work shall);
(ii) material breach of the Employee's fiduciary duties to
the Company or an affiliate thereof (such as obtaining
secret profits from such entity) or a violation by the
Employee in the course of performing the Employee's
duties to the Company or any affiliate thereof of any
law, rule or regulation (other than traffic violations
or other minor offenses) where such violation has
resulted or is likely to result in material harm to the
Company or an affiliate thereof, and in either case
where such breach or violation constituted an act or
omission performed or made willfully, in bad faith and
without a reasonable belief that such act or omission
was within the scope of the Employee's employment; or
(iii) the Employee's engaging in illegal conduct (other than
traffic violations or other minor offenses) which
results in a conviction (or a nolo contendere plea
thereto) which is not subject to further appeal and
which is injurious to the business or public image of
the Company or any affiliate thereof.
(c) "Change of Control" means the occurrence of any one or more of
the following events occurring after the date of this Agreement:
(i) an acquisition, in any one transaction or series of
transactions, after which any individual, entity or
group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act), has beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 25% or more (or an acquisition of an
additional 5% or more if such individual, entity or
group already has beneficial ownership of 25% or more)
of either the then outstanding shares of Company common
stock or the combined voting power of the then
outstanding voting securities of the Company, but
excluding, for this purpose, any such acquisition (A)
from the Company, (B) by the Company or any employee
benefit plan (or related trust) of the Company, (C) by
any Security Capital Entity (other than GE) made while
the standstill provisions of the Shareholders Agreement
are in effect and made in compliance with such
provisions, but excluding an acquisition made in
connection with the waiver of any such standstill
provisions, or (D) by any corporation with respect to
which, following such acquisition, all of the then
outstanding shares of common stock and voting securities
of such corporation are then beneficially owned,
directly or indirectly, in substantially the same
proportions, by the beneficial owners of the common
stock and voting securities of the Company immediately
prior to such acquisition;
(ii) 50% or more of the members of the Board (A) are not
Continuing Directors, or (B) whether or not they are
Continuing Directors, are nominated by or elected by the
same Beneficial Owner (for this purpose, a director of
the Company shall be deemed to be nominated or elected,
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respectively, by the Security Capital Entities or GE if
the director also is an employee or director of GE,
Security Capital Group, Inc., or any other subsidiary of
GE, including any successors) or are elected or
appointed in connection with an acquisition by the
Company (whether through purchase, merger or otherwise)
of all or substantially all of the operating assets or
capital stock of another entity; or
(iii) the (A) consummation of a reorganization, merger, share
exchange, consolidation or similar transaction, in each
case, with respect to which the individuals and entities
who were the respective beneficial owners of the common
stock and voting securities of the Company immediately
prior to such transaction do not, following such
transaction, beneficially own, directly or indirectly,
more than 50% of, respectively, the then outstanding
shares of common stock and voting securities of the
corporation resulting from such reorganization, merger
or consolidation, (B) consummation of the sale or other
disposition of all or substantially all of the assets of
the Company or (C) approval by the shareholders of the
Company of a complete liquidation or dissolution of the
Company.
(d) "Continuing Director" means:
(i) any member of the Board who was a member of the Board
on January 1, 2002, and any successor of a Continuing
Director who is recommended to succeed a Continuing
Director (or whose election or nomination for
election is approved) by at least a majority of the
Continuing Directors then on the Board; and
(ii) any individual who becomes a director pursuant to
Article 2 of the Stockholders Agreement.
(e) "Disability" means a disability that entitles (or would entitle
if a participant) the Employee to long-term disability benefits
under the Company's disability plan or policy or, if no such
plan or policy is in place, if the Employee has been unable
to substantially perform his duties, due to physical or mental
incapacity, for 180 consecutive days.
(f) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(g) "GE" means General Electric Company, including any successors.
(h) "Good Reason" means any one or more of the following events
(unless consented to in writing by the Employee):
(i) a material diminution or adverse change in the nature of
the Employee's title, position, reporting relationships,
authority, duties or responsibilities;
(ii) a diminution that is more than de minimis in either the
Employee's annual base salary or total compensation
opportunity (which, for this purpose,
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means the aggregate of the annual base salary, annual
bonus and long-term incentive compensation that the
Employee has an opportunity to earn pursuant to awards
made in any one calendar year) or in the formula used to
determine the Employee's annual bonus or long-term
incentive compensation, or a material diminution in the
Employee's overall employee and fringe benefits (it
being understood by the parties that if the Employee has
the same total compensation opportunity or compensation
formula, but the compensation actually received by the
Employee is diminished due to the Company's or the
Employee's performance, such diminution shall not
constitute Good Reason);
(iii) the Employee's principle place of business is
relocated to a location that is both more than 50
miles from its current location and further from the
Employee's residence than the location of the
Employee's principle place of business prior to the
relocation;
(iv) a successor fails to assume this Agreement, or amends
or modifies this Agreement;
(v) a material breach of this Agreement by the Company or
a successor thereto;
(vi) the occurrence of any event or circumstance
constituting "Good Reason," as defined in any Change
of Control Agreement between the Employee and the
Company; or
(vii) if, and only if, the Employee has been employed on a
full-time basis for at least one full calendar year,
both of the following conditions are met: (A) the
Employee travels at least 50 days during a calendar
year, and (B) the total number of days the Employee
travels in such calendar year exceeds by 25 days or more
the average number of days the Employee traveled per
year on Company business during the two calendar years
immediately preceding such calendar year or, if the
Employee has not been employed on a full-time basis for
two full calendar years, during the one calendar year
immediately preceding such calendar year.
For purposes of subsection (h)(vii) above, any day in which
the Employee is required to stay overnight shall constitute a
day of travel.
No event described above shall constitute Good Reason unless
the Employee has given written notice to the Company
specifying the event relied upon for such termination within
six months after the Employee becomes aware, or reasonably
should have become aware, of the occurrence of such event and,
if the event can be remedied, the Company has not remedied
such within 30 days of receipt of the notice.
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(i) "Retirement" means the Employee's voluntary termination of
employment after (i) attaining age 65, (ii) attaining age 55
with 10 years of service, or (iii) attaining an age which, when
added to the Employee's years of service, equals at least 75.
(j) "Security Capital Entities" means Security Capital Holdings S.A.
and Security Capital U.S. Realty and any Affiliates of either
who are bound by the Stockholders Agreement.
(k) "Stockholders Agreement" means the Stockholders Agreement dated
July 10, 1996, as amended, among the Security Capital Entities
and the Company and includes any successor stockholders
agreement between the Company and GE or any GE subsidiary (or
any successor thereto).
10. Administration. The Committee shall have the authority to administer
and interpret this Agreement, and the Committee shall have all the
powers with respect to this Agreement as it has with respect to the
Plan. Any interpretation of the Agreement by the Committee and any
decision made by it with respect to the Agreement is final and binding
on all persons.
11. Plan Governs. The terms of this Agreement shall be subject to the terms
of the Plan, a copy of which may be obtained by the Employee from the
Company's Vice President-People Services.
12. Dispute Resolution. Any dispute, controversy or claim between the
Company and the Employee or other person arising out of or relating to
this Agreement shall be settled by arbitration conducted in the City of
Jacksonville in accordance with the Commercial Rules of the American
Arbitration Association then in force and Florida law within 30 days
after written notice from one party to the other requesting that the
matter be submitted to arbitration. Arbitration must be initiated by
serving or mailing a written notice of the complaint to the other party
within one year (365 days) after the day the complaining party first
knew or should have known of the events giving rise to the complaint.
Failure to initiate arbitration within this time period will result in
waiver of any right to bring arbitration or any other legal action with
respect to this Agreement. The arbitration decision or award shall be
binding and final upon the parties. The arbitration award shall be in
writing and shall set forth the basis thereof. The existence, contents
or results of any arbitration may not be disclosed by a party or
arbitrator without the prior written consent of both parties. The
parties hereto shall abide by all awards rendered in such arbitration
proceedings, and all such awards may be enforced and executed upon in
any court having jurisdiction over the party against whom enforcement
of such award is sought. The Company agrees to reimburse the Employee
for all costs and expenses (including, without limitation, reasonable
attorneys' fees, arbitration and court costs and other related costs
and expenses) the Employee reasonably incurs as a result of any dispute
or contest regarding this Agreement and the parties' rights and
obligations hereunder if, and when, the Employee prevails on at least
one material claim; otherwise, each party shall be responsible for its
own costs and expenses.
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13. Miscellaneous. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida (exclusive of conflict
of law principles). In the event that any provision of this Agreement
shall be invalid, illegal or unenforceable, the remainder shall not be
affected thereby. This Agreement shall be binding upon and inure to
the benefit of the Employee and Employee's heirs and personal
representatives and the Company and its successors, assigns and legal
representatives. The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation, or otherwise) to
expressly assume and agree to perform under this Agreement in the same
manner and to the same extent that the Company would be required to
perform if no such succession had taken place. This Agreement may not
be terminated, amended, or modified except by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the day and year first above written.
REGENCY CENTERS CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxxx
Its: Chairman of the Compensation
Committee of the Board of
Directors
"Company"
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Its: "Employee"
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EXHIBIT A
Performance Criteria
1. Definitions. The following definitions shall apply for purposes of this
Exhibit A:
"FFO Per Share" for any year means the Company's funds from
operations per share on a diluted basis for the year, computed on a
basis consistently applied and as publicly reported by the Company. If
the Company changes the manner in which it computes FFO Per Share for
any year, the Committee shall adjust FFO Per Share for the previous
year as appropriate in order to achieve comparability of results.
"FFO Change" for any year means the percentage change, rounded
to the nearest 1%, in FFO Per Share relative to the preceding year. For
example, if FFO Per Share for 2003 is $4.00 and FFO Per Share for 2004
is $4.41, the FFO Change would be an increase of 10%.
"NAREIT" means the National Association of Real Estate
Investment Trusts.
"Peer Group" means shopping center REITs with equity market
capitalization of more than $1 billion as of the end of the year in
question, as reported by NAREIT.
"Shareholder Return" for any year means the total return on
common stock, rounded to the nearest 1%, based on the closing price as
of the end of the year, divided by the closing price one year earlier,
and assuming the reinvestment of cash dividends on each applicable
ex-dividend date.
2. Accelerated Vesting.
(a) A portion of the Performance Shares and related Stock Rights
DEs shall be issued before the eighth anniversary of the Grant
Date, in the applicable percentage set forth below for any
year through 2007, if for such year FFO Per Share and
Shareholder Return on the Common Stock relative to Shareholder
Return of Peers (as reported by NAREIT) are at least equal to
one of the minimum levels set forth below (except that the
test is an either/or test for 7.5% vesting):
A-1
Percent of Performance
Shareholder Return Relative to Shares that Vest for
FFO Change for the Year Peers for the Year the Year
----------------------- ------------------ --------
6% increase Top 2 of Peers 25.00%
6% increase Above average of Peers 22.50%
5% increase Not applicable 18.75%
4% increase Above average of Peers 12.50%
Either 4% increase Or average of Peers 6.25%
The Performance Shares and Related Stock Rights DEs awarded
for any year by reason of accelerated vesting shall be issued
as promptly as practicable after the Committee determines that
the Employee is entitled to accelerated vesting, but in no
event later than March 31 of the following year. Accelerated
vesting may not occur under more than one criterion for a
year. For example, if in 2003 FFO Per Share increases by 6%
and Shareholder Return on the Common Stock is above the
average of the Peers but is not in the top 2 of the Peers,
22.5% of the Performance Shares and related Stock Rights DEs
shall be issued. If a vesting opportunity in one or more years
is not achieved, but if by reason of subsequent performance no
later than December 31, 2007, FFO Per Share and Shareholder
Return reach levels they would have reached had vesting
criteria been satisfied in earlier years, then the applicable
percentage of Performance Shares and related Stock Rights DEs
shall be issued on a catch-up basis. For example, assume that
in 2003 there is no increase in FFO Per Share and that
Shareholder Return on the Common Stock is below the average of
the Peers. Assume also that in 2004 FFO Per Share reaches the
level it would have reached had it grown 6% in each of 2003
and 2004 and that Shareholder Return on the Common Stock
exceeds the average Shareholder Return of the Peers over such
two-year period. In that case, 45.0% of the Performance Shares
would vest (22.5% plus 22.5%).
(b) If another per share measure besides FFO Per Share becomes
standard for the Company's industry and the Company adopts
such measure in lieu of FFO Per Share before the eighth
anniversary of the Grant Date, the Committee shall substitute
such other measure for FFO Per Share hereunder.
(c) In its discretion, the Committee may accelerate the vesting of
all or any portion of the Performance Shares and related Stock
Rights DEs before the eighth anniversary of the Grant Date
based on the achievement of any other criteria the Committee
determines to be appropriate.
A-2
