EXHIBIT 10.1
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AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made on
July 26, 2002, effective as of January 1, 2002 (the "Effective Date"), between
EQUITY ONE, INC., a Maryland corporation (the "Employer"), and XXXXX XXXXXXX
(the "Employee") and replaces and supersedes in its entirety that certain
Employment Agreement, dated as of January 1, 1996 between the Employer and the
Employee.
W I T N E S S E T H:
WHEREAS, the Employer desires to continue to employ the Employee as its
Executive Chairman of the Board of Directors and Chief Executive Officer on the
terms and conditions set forth in this Agreement; and
WHEREAS, the Employee desires to continue his employment with the
Employer on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. TERM. The term of this Agreement shall commence effective as of
January 1, 2002 and shall continue until December 31, 2006 and shall be
automatically renewed annually thereafter, unless either party gives the other
party prior written notice at least 180 days prior to the termination date of
the party's intent not to renew this Agreement.
2. DUTIES. The Employee is engaged to act as Executive Chairman of the
Board of Directors and Chief Executive Officer of the Employer. Subject to the
authority of the Board of Directors, the Employee shall be in complete charge of
the business and operations of the Employer, shall have full authority and
responsibility for formulating corporate policies, and shall administer the
Employer in all respects. His powers shall include the authority to hire and
fire personnel, and to retain consultants when he deems necessary to implement
the Employer's policies. In addition, the Employee shall have such other duties
as may from time to time be reasonably assigned to him by the Board of
Directors.
3. TIME DEVOTED.
(a) During the period of his employment hereunder, and except
for illness, reasonable vacation periods, state, federal and religious holidays
and reasonable leaves of absence, the Employee shall devote so much of his
business time, attention, skill and efforts as shall be required for the
faithful performance of his duties hereunder. However, the Employee may serve,
or continue to serve, on the boards of directors of, and hold any other offices
or positions in, companies or organizations which will not present any conflict
of interest with the
Employer or the Employer's business or adversely affect the performance of the
Employee's duties pursuant to this Agreement.
(b) The Employer recognizes that the Employee presently is the
Chairman of the Board of Directors and Chief Executive Officer of Gazit, Inc.,
Chairman of the Board of Directors and Chief Executive Officer of Gazit-Globe
(1982), Ltd. and the Chairman of the Board of First Capital Reality, Inc., is an
officer and director of certain of their affiliates and is involved in other
ventures and businesses to which the Employee will devote, from time to time,
his business time, attention, skill and efforts. Notwithstanding the generality
of the provisions set forth in Paragraph 3(a), the Employee may, directly or
indirectly, engage in other businesses in the United States not in direct
competition with the Employer, which may include any type of real estate
business or activity (other than the ownership, acquisition, development or
management of retail shopping centers or retail malls), provided that Employee's
involvement in such other businesses shall not adversely affect the Employee's
performance of his duties pursuant to the terms of this Agreement nor
detrimentally affect the affairs and business of the Employer. Further, Employee
may, directly or indirectly, engage in any businesses, without limitation,
outside the United States, provided that Employee's involvement in such other
business shall not adversely affect the Employee's performance of his duties
pursuant to the terms of this Agreement.
4. COMPENSATION.
(a) For all services rendered by the Employee in any capacity
during his employment under the Agreement, the Employer shall pay the Employee
an annual salary (the "Base Salary") equal to Four Hundred and Thirty Thousand
and No/l00 Dollars (US$430,000.00) per annum for 2002, payable, in advance, in
quarterly installments, on the first day of each calendar quarter. The Base
Salary shall be increased annually on January 1st of each year, commencing on
January 1, 2003, by the greater of (i) six percent per year or (ii) the rate of
increase of the Consumer Price Index as determined by the United States
Department of Labor for the year immediately preceding each such January 1st.
(b) For each year commencing with calendar year 2002, during
which the Employee is employed by the Employer, the Employee shall be eligible
to participate in a bonus plan maintained by the Employer that provides an
annualized cash bonus opportunity (the "Bonus") upon achievement of performance
targets (the "Targets"), with a targeted bonus opportunity equal to 65% of the
Employee's then Base Salary (the "Bonus Amount"). The compensation committee of
the Board of Directors shall establish reasonable Targets for the Employee.
However, the Employee acknowledges and agrees that the Targets utilized for
calculating any Bonus payable to the Employee shall be determined by the
compensation committee of the Board, in its sole reasonable discretion. The
Targets shall be established no later than February 28th of each calendar year,
except for 2002. The Targets for 2002 shall be in accordance with Exhibit A
attached to this Agreement.
The Employee shall be entitled to receive a single cash
payment of the Bonus Amount for each calendar year not later than March 15th of
the following year in accordance with the following schedule: for achieving less
than 50% of the Targets, the Employee shall not
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be entitled to any Bonus; for achieving from 50% to less than 100% of the
Targets, the Employee shall be entitled to one-half of the Bonus Amount; for
achieving from 100% to less than 150% of the Targets, the Employee shall be
entitled to the Bonus Amount; for achieving from 150% to less than 200% of the
Targets, the Employee shall be entitled to one and one-half of the Bonus Amount;
and for achieving 200% or more of the Targets, the Employee shall be entitled to
two times the Bonus Amount. Notwithstanding the foregoing, the Employee shall
have the right, by providing written notice to the Employer no later than ten
days after the Bonus Amount for any calendar year is finally determined, to
elect to receive all or a specified portion of the Bonus Amount in shares of
stock of the Employer. For purposes of this Paragraph, the shares of stock shall
be valued at 85% of the average closing price of such shares during the 20
trading days preceding the date of such notice on the primary securities
exchange on which such shares are listed and traded.
(c) The Employer shall provide, at the Employer's cost, the
Employee with a suitable automobile for his business use, including all related
maintenance, repairs, insurance, and other costs. Such automobile may also be
used by the Employee (and any one authorized by the Employee, including family
members) for personal use at no cost to the Employee.
(d) The Employer shall provide, at the Employer's cost, the
Employee with cellular telephones and, at the Employee's home, with office
furniture, business telephone lines and related telephone equipment, a computer
and related peripherals, high speed Internet access, a copy machine, a facsimile
machine and any other reasonably necessary office equipment. The parties
recognize that the cellular telephones and at home office are necessary for the
Employee to perform his duties hereunder. The Employer recognizes and agrees
that the Employee (and any one authorized by the Employee, including family
members) shall be permitted to use the cellular telephones and at home office
equipment and services for personal use at no cost to the Employee.
(e) The Employer shall reimburse the Employee for all
reasonable expenses incurred by him in the discharge of his duties hereunder,
including travel expenses, consistent with past practices. Any frequent flyer
miles or points and similar benefits provided by hotels, credit card companies
and others received by the Employee in connection with his business travel shall
be retained by the Employee for his personal use. The Employer shall provide the
Employee with credit cards for the payment of business expenses issued either in
the name of the Employer with the Employee as authorized user or in the name of
the Employee for the account of the Employer, and balances thereon shall be
payable by Employer. The Employee shall maintain detailed records of such
expenses in such form as the Employer may reasonably request and make such
records available to the Employer as and when requested.
(f) All sums payable to the Employee hereunder shall be
subject to all federal, state and municipal laws or governmental regulations now
or hereafter in existence requiring the withholding, deduction, or payment
therefrom of sums for income or other taxes payable by or for or assessable
against the Employee, it being agreed that the Employer shall act thereon in
accordance with its interpretation and good faith of any such laws or
regulations.
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(g) In the event that at any time during the term of this
Agreement, the Employer proposes to register any of its securities under the
Securities Act of 1933, as amended, the Employer shall give the Employee the
right and opportunity to register, each time that the Employer so proposes, any
or all securities of the Employer held by the Employee, including, any stock
options and securities subject to such stock options. Nothing contained in this
Agreement shall limit or modify any registration rights granted to the Employee
by the Employer pursuant to any other contract or arrangement.
(h) Simultaneously with the execution of this Agreement, the
maturity date of the currently outstanding loans made by the Employer to the
Employee in the respective principal amounts of $297,000 and $2,870,000 shall
each be extended until December 31, 2006. Except for the extension of the
maturity date of the outstanding loans, the other terms and provisions of the
outstanding loans shall remain unchanged.
(i) If the Employer provides notice to the Employee of the
Employer's intent not to renew this Agreement as permitted in Article 1, then
the Employer shall pay the Employee severance compensation equal to twice the
sum of the Employee's then Base Salary and the amount of his Bonus payment, if
any, for the then most recently completed fiscal year, payable in a cash payment
no later than the termination date of this Agreement.
5. INCENTIVE COMPENSATION. The Employer shall issue to the Employee,
pursuant to the Employer's 2000 Executive Incentive Compensation Plan (the
"Incentive Plan"), Options (as defined in the Incentive Plan) to acquire an
aggregate of 850,000 shares of the Employer's capital stock. The Employer shall
grant to the Employee the number of Options indicated on the following dates:
simultaneously with the execution of this Agreement, 300,000 Options; January 1,
2003, 300,000 Options; and January 1, 2004, 250,000 Options. The exercise price
of the 300,000 Options granted simultaneously with the execution of this
Agreement shall be $13.25 per share and the exercise price of the remaining
Options shall be equal to the average closing price of the Employer's capital
stock during the 15 trading days immediately prior to the date of grant of the
Options. Options covering 170,000 shares shall vest on the last day of each
year, commencing on December 31, 2002, until all Options granted pursuant to the
terms of this Agreement have vested. Each Option granted hereunder shall expire
ten years from the date of the grant of such Option.
In addition, the Employer agrees to issue to the Employee, pursuant to
the Incentive Plan, 103,500 shares of Restricted Stock (as defined in the
Incentive Plan). The Restricted Stock shall vest in five equal installments on
January 1, 2003, 2004, 2005 and 2006 and December 31, 2006. The Employee shall
be entitled to receive dividends on the shares of Restricted Stock, whether
vested or not. The Employee acknowledges and agrees that the Employer has
previously fulfilled its obligation to issue the Restricted Stock as required by
this paragraph by issuing 103,500 shares of Restricted Stock to the Employee on
June 11, 2002.
6. PARTICIPATION IN BENEFIT PLANS. The Employee shall be entitled to
participate in or receive benefits under all of the Employer's employee benefit
plans and arrangements in effect on the date hereof or made available in the
future to the executives and key management employees of the Employer, including
without limitation, health, medical and retirement plans,
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and being entitled to be considered for awards under any existing or future
incentive compensation plans, stock option plans or restricted stock plans,
subject to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements. Notwithstanding the generality of
the foregoing, the Employer shall provide the Employee with disability insurance
for the benefit of the Employee, at the Employee's expense.
7. VACATION; DAYS OFF. The Employee shall be entitled to take up to 25
business days of vacation, at times to be determined by agreement of the
Employee and the Employer. In addition, the Employee may take such time as the
Employee determines necessary to attend such meetings as may reflect the
interests of the Employer, and the Employer shall reimburse the Employee for all
of the expenses incurred thereby.
8. ILLNESS. The Employee shall be entitled to take up to 30 days of
sick leave per year; provided, however, that any prolonged illness resulting in
absenteeism greater than the sick leave permitted herein or disability shall not
constitute "cause" for termination under the terms of this Agreement.
9. TERMINATION FOR CAUSE.
(a) For purposes of this Agreement, the term "cause"
shall mean:
(1) The breach of any material provisions of this
Agreement by the Employee;
(2) The arrest and conviction of the Employee for a
felony, capital crime or any crime involving moral turpitude, including but not
limited to crimes involving illegal drugs, after all appeals; or
(3) The commission or participation by the Employee
in an act of fraud or dishonesty against the Employer that is materially
injurious to the Employer.
(b) The determination of "cause" shall be made by the
affirmative vote of at least 80% of the members of the Board of Directors of the
Employer (excluding the Employee and any other employee of the Employer) at a
special meeting convened specifically for such determination. The Employee may
be terminated immediately following notice by the Employer for "cause," unless
"cause" is by reason of subparagraph (a)(1), in which case the Employee shall
have 30 days from the date of such notice to cure such breach, or if the breach
cannot be reasonably cured within such 30 day period, to commence to cure such
breach, to the satisfaction of the Employer's Board of Directors, within such 30
day period. If the Employee has not cured such breach to the satisfaction of the
Board of Directors within 90 days after the date of such notice, the Employer
shall give notice of termination to the Employee and this Agreement shall
terminate as of the date of such notice. Upon termination of the Employee's
employment pursuant to this Paragraph 9(b), the Employee shall be entitled to be
paid his Base Salary to the date of termination and the Employer shall have no
further liability hereunder (other than for reimbursement for reasonable
business expenses incurred prior to the date of termination, subject, however,
to the provisions of Paragraph 4 (e)).
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10. TERMINATION WITHOUT CAUSE; RESIGNATION AFTER CHANGE OF CONTROL.
(a) In the event the Employee is terminated as an employee of the
Employer without cause or in the event that the Employee resigns or is
terminated for any reason at any time during the one year period (the "Change of
Control Period") after a Change in Control (as hereinafter defined) of the
Employer, then: (i) the Employee shall be entitled to receive as of the date of
such termination or resignation a cash payment in an amount equal to 2.99 times
the sum of his then Base Salary and the amount of his Bonus payment, if any, for
the then most recently completed fiscal year, (ii) any Options that have not
previously been granted to the Employee pursuant to the provisions of Paragraph
5 shall be granted effective as of the date of such termination or resignation
to the Employee with an exercise price equal to the average closing price of the
Employer's capital stock during the 15 trading days immediately prior to such
date, (iii) all Options and restricted stock awards granted to the Employee
(including the Options granted pursuant to (ii) above) shall immediately vest,
and (iv) the Employee shall thereby be granted a put option giving him the right
to tender all or a portion of his shares of stock and stock options of the
Employer owned by the Employee to the Employer as provided in Paragraph 13.
(b) For purposes of this Agreement, "Change in Control" shall be deemed
to have occurred upon:
(i) Approval by the stockholders of the Employer of (x) a
reorganization, merger, consolidation or other form of corporate transaction or
series of transactions, in each case, with respect to which persons who were the
stockholders of the Employer immediately prior to such reorganization, merger or
consolidation or other transaction do not, immediately thereafter, own more than
26% of the combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated Employer's then outstanding
voting securities, in substantially the same proportions as their ownership
immediately prior to such reorganization, merger, consolidation or other
transaction, or (y) a liquidation or dissolution of the Employer or (z) the sale
of all or substantially all of the assets of the Employer (unless such
reorganization, merger, consolidation or other corporate transaction,
liquidation, dissolution or sale is subsequently abandoned) excluding, for
purposes of this Paragraph, any acquisitions by any person, entity or "group,"
within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act, that as of the Effective Date beneficially owns (within the meaning of Rule
13d-3 promulgated under the Securities Exchange Act) a Controlling Interest (as
defined below) of the Employer or any affiliate of such person, entity or
"group";
(ii) Individuals who, as of the Effective Date, constitute the
Board of Directors (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board of Directors, provided (A) that any person
becoming a director subsequent to the Effective Date whose election, or
nomination for election by the Employer's stockholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board
(other than an election or nomination of an individual whose initial assumption
of office is in connection with an actual or threatened election contest
relating to the election of the Directors of the Employer, as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange
Act) or (B) any individual appointed to the Board of Directors by the Incumbent
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Board shall be, for purposes of this Agreement, considered as though such person
were a member of the Incumbent Board; or
(iii) The acquisition (other than from the Employer) by any
person, entity or "group," within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act, of more than 26% of either the then outstanding
shares of the Employer's Common Stock or the combined voting power of the
Employer's then outstanding voting securities entitled to vote generally in the
election of directors (hereinafter referred to as the ownership of a
"Controlling Interest") excluding, for this purpose, any acquisitions by (1) the
Employer or its subsidiaries, or (2) any person, entity or "group" that as of
the Effective Date beneficially owns (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act) a Controlling Interest of the
Employer or any affiliate of such person, entity or "group."
Notwithstanding anything in this Paragraph to the contrary, the Employee
acknowledges and agrees that a Change of Control as defined above shall not be
deemed to have occurred solely as a result of the direct or indirect sale by the
Employee or his affiliates of their shares of the Employer's Common Stock unless
(1) such sale was approved or recommended by a majority of the Incumbent Board
(excluding the Employee and any other employee of the Employer), or (2) such
sale was approved by a majority of the Employer's stockholders that are not
affiliated directly or indirectly with the Employee or his affiliates, or (3)
the stockholders of the Employer have the right to participate, generally, in
such sale on the same terms and conditions as the Employee or his affiliates.
11. RESIGNATION BY EMPLOYEE. The Employee shall at all times have the
right, upon 90 days' written notice to the Employer, to resign as an employee of
the Employer. Upon any resignation by the Employee (except during the Change of
Control Period), the Employee shall be entitled to be paid his Base Salary to
the effective date of termination and an additional payment equal to the Bonus,
if any, paid to the Employee with respect to the then most recently completed
fiscal year, pro rated based on the portion of the current fiscal year that the
Employee was employed by the Employer and shall be granted a put option giving
him the right to tender all or a portion of his shares of stock and vested stock
options of the Employer owned by the Employee to the Employer as provided in
Paragraph 13.
Except as provided in the immediately preceding sentence and except for
the reimbursement for reasonable business expenses incurred prior to the
effective date of termination, subject, however, to the provisions of Paragraph
4(e), the Employer shall have no further liability to the Employee hereunder.
12. DISABILITY; DEATH.
(a) The Employer shall at all times have the right, upon written notice
to the Employee, to terminate the Employee's employment hereunder if the
Employee shall, as the result of mental or physical incapacity, illness or
disability, become unable to perform his duties hereunder for in excess of 120
days in any 12-month period. Upon any termination pursuant to this Paragraph,
(i) the Employer shall pay to the Employee as soon as practicable in a single
payment the total amount of Base Salary that the Employee would have received
through the end
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of the term of this Agreement, plus an amount equal to the Bonus, if any, paid
to the Employee with respect to the then most recently completed fiscal year
times the number of years (pro rated for partial years) during the period
commencing with the first day of the fiscal year in which the termination
occurred through the end of the term of this Agreement, (ii) all stock options
and restricted stock awards granted to the Employee shall vest, and (iii) the
Employee shall be granted a put option giving him the right to tender all or a
portion of his shares of stock and stock options of the Employer owned by the
Employee to the Employer as provided in Paragraph 13. Except as provided in the
immediately preceding sentence and except for the reimbursement for reasonable
business expenses incurred prior to the effective date of termination, subject,
however, to the provisions of Paragraph 4(e), the Employer shall have no further
liability to the Employee hereunder.
(b) In the event of the death of the Employee during the term of his
employment hereunder, the Employer shall pay to the estate of the deceased
Employee as soon as practicable, but in no event more than 30 days from the date
of the Employee's death, in a single payment (i) the total amount of Base Salary
that the Employee would have received through the end of the term of this
Agreement and (ii) a bonus payment equal to the Bonus, if any, paid to the
Employee with respect to the then most recently completed fiscal year times the
number of years (pro rated for partial years) during the period commencing with
the first day of the fiscal year in which the Employee died through the end of
the term of this Agreement. In addition, in the event of the death of the
Employee during the terms of this Agreement, (i) all stock options and
restricted stock awards granted to the Employee shall vest, and (ii) the estate
of the Employee shall be granted a put option giving the estate the right to
tender all or a portion of the shares of stock and stock options of the Employer
owned by the Employee to the Employer as provided in Paragraph 13. Except as
provided in the two immediately preceding sentences and except for the
reimbursement for reasonable business expenses incurred prior to the effective
date of termination, subject, however, to the provisions of Paragraph 4(e), the
Employer shall have no further liability to the Employee hereunder.
13. PUT OPTION.
In the event that the Employee is terminated without cause, resigns as
an employee of the Employer, is terminated by the Employer as a result of mental
or physical incapacity, illness or disability as provided in Paragraph 12(a) or
dies, then the Employer shall grant the Employee or his estate, as the case may
be, an option (the "Put Option") to sell all or any portion of the shares of
stock, shares of vested restricted stock and vested stock options owned by the
Employee to the Employer in accordance with the provisions of this Paragraph.
The Employee or his estate, as the case may be, shall have the right to exercise
the Put Option by giving written notice to the Employer within 180 days after
the Employee ceases being employed by the Employer specifying the number of
shares of stock, vested restricted stock and vested stock options being
tendered. The Employer shall, within 20 business days after receiving the notice
of exercise, purchase each tendered share of stock at a price per share (the
"Per Share Purchase Price") equal to (i) if the Employer's stock is listed and
traded on a securities exchange, the price per share equal to the average
closing price over the 15 trading days preceding the date the stock is tendered
pursuant to this provision, (ii) if the Employer's stock is not listed and
traded on a
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securities exchange, the price per share equal to the price per share of a
third-party, arms' length sale of stock of the Employer, in similar quantities,
during the six-month period immediately preceding the tender, or (iii) if the
price cannot be determined pursuant to (i) or (ii) above, the fair market value
as determined by an appraiser mutually acceptable to the parties. If the parties
are unable to agree upon a mutually acceptable appraiser within ten days after
notice is given of the proposed tender, the matter shall be submitted to binding
arbitration by the American Arbitration Association who shall appoint one
arbitrator pursuant to the Rules of Commercial Arbitration within seven days
after submission and said arbitrator shall determine the fair market value of
the tendered shares by utilizing a nationally recognized, reputable investment
banking firm. The determination of fair market value must be completed within 30
days after the appointment of an arbitrator and the arbitrator's findings shall
be final. The proceedings shall take place in Miami, Florida in the English
language and each party shall pay one-half the cost of the proceedings and the
appraisal.
In addition, the Employer shall, within 20 business days after
receiving the notice of exercise, purchase each tendered, vested stock option at
a price equal to the Per Share Purchase Price less the exercise price for such
tendered stock option.
14. RESIGNATION FROM POSITIONS. Any termination of employment under
this Agreement, whether or not voluntary, will automatically constitute a
resignation, effective as of the date of such termination, by the Employee as to
his positions as an officer and director of the Employer and its subsidiaries
and as to all positions held by the Employee as trustee of any qualified or
nonqualified trusts for the benefit of employees of the Employer.
15. CONFIDENTIAL INFORMATION.
(a) Without the prior written consent of the Employer, except
as may be required by law, the Employee will not, at any time, either during or
after his employment by the Employer, directly or indirectly divulge or disclose
to any person, entity, firm or association, including, without limitation, any
future employer, or use for his own or others benefit or gain, any financial
information, prospects, customers, tenants, suppliers, clients, sources of
leads, methods of doing business, intellectual property, plans, products, data,
results of tests or any other trade secrets or confidential materials or like
information of the Employer, including (but not by way of limitation) any and
all information and instructions, technical or otherwise, prepared or issued for
the use of the Employer (collectively, the "Confidential Information"), it being
the intent of the Employer, with which intent the Employee hereby agrees, to
restrict him from dissemination or using any like information that is not
readily available to the general public.
(b) All books, records, accounts, tenant, customer, client and
other lists, tenant, customer and client street and e-mail addresses and
information (whether in written form or stored in any computer medium) relating
in any manner to the business, operations, or prospects of the Employer, whether
prepared by the Employee or otherwise coming into the Employee's possession,
shall be the exclusive property of the Employer and shall be returned
immediately to the Employer upon termination of the Employee's employment or on
the Employer's request at any time.
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Upon the termination of his employment as an employee of the
Employer, the Employee will immediately deliver to the Employer all lists,
books, records, schedules, data, and other information (including all copies) of
every kind relating to or connected with the Employer and its activities,
business, and customers.
16. NON-COMPETITION. In case of his termination with cause or his
voluntary resignation from his employment with the Employer (other than a
voluntary resignation during the Change of Control Period), the Employee
specifically agrees that for a period of one year (the "Non-Competition Period")
from and after the time of his termination with cause or voluntary resignation,
and subject to the exceptions for the Employee's engagement in other businesses
or ventures as described in Paragraph 3, the Employee shall not without the
prior written consent of the Board of Directors of the Employer, directly or
indirectly, (i) enter into the employment of, render any services to, engage,
manage, operate, own, or otherwise offer other assistance to or participate in,
as an officer, director, employee, principal, proprietor, representative,
stockholder, partner, associate, consultant or otherwise, any person or entity
that competes, plans to compete or is considering competing with the Employer in
any business of the Employer existing or proposed at the time the Employee shall
cease to perform services hereunder (a "Competing Entity") in the states of
Texas or Florida or in any other state in which the Employer conducts material
operations during the term of this Agreement (collectively, the "Territory");
(ii) interfere with or disrupt or attempt to disrupt, or take any action that
could reasonably be expected to disrupt, any past or present or prospective
relationship, contractual or otherwise, between the Employer and any tenant,
customer, supplier, sales representative, consultant or employee of the
Employer; (iii) directly or indirectly solicit for employment or attempt to
employ, or assist any other entity in employing or soliciting for employment,
either on a full-time or part-time or consulting basis, any employee or
executive (whether salaried or otherwise, union or non-union) of the Employer
who within one year of the time the Employee ceased to perform services
hereunder had been employed by the Employer, or (iv) communicate with or solicit
any person who was a tenant or customer of the Employer or any present or future
tenant or customer of the Employer (including without limitation tenants or
customers previously or in the future generated or produced by Employee), in any
manner which interferes or might interfere with such tenant's or customer's
relationship with the Employer, or in an effort to obtain such tenant or
customer as a tenant or customer of any person in the Territory. Notwithstanding
the foregoing, the Employee shall be permitted to own up to a ten percent equity
interest in a Competing Entity.
17. VIOLATIONS OF COVENANTS, ETC.
(a) The Employee agrees and acknowledges that (i) the services
to be rendered by him hereunder are of a special and original character that
gives them unique value, (ii) that the provisions of Paragraph 16, are, in view
of the nature of the business of the Employer, reasonable and necessary to
protect the legitimate interests of the Employer, (iii) that his violation of
any of the covenants or agreements contained in this Agreement would cause
irreparable injury to the Employer, (iv) that the remedy at law for any
violation or threatened violation thereof would be inadequate, and (v) that the
Employer shall be entitled to temporary and permanent injunctive or other
equitable relief as it may deem appropriate without the
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accounting of all earnings, profits, and other benefits arising from any such
violation, which rights shall be cumulative and in addition to any other rights
or remedies available to the Employer. The Employee hereby agrees that in the
event of any such violation, the Employer shall be entitled to commence an
action in any court of appropriate jurisdiction for any such preliminary and
permanent injunctive relief and other equitable relief.
(b) The Employer and the Employee recognize that the laws and
public policies of the various states of the United States and the District of
Columbia may differ as to the validity and enforceability of certain of the
provisions contained herein. It is the intention of the Employer and the
Employee that the provision of this Agreement shall be enforced to the fullest
extent permissible under the laws and public policies of each state and
jurisdiction in which such enforcement is sought, but that the unenforceability
(or the modification to conform with such laws or public policies) of any
provision hereof shall not render unenforceable or impair the remainder of this
Agreement. Accordingly, if any provision of this Agreement shall be deemed to be
invalid or unenforceable, as may be determined by an arbitral tribunal, this
Agreement shall be deemed to delete or modify, as necessary, the offending
provision and to alter the balance of this Agreement in order to render the same
valid and enforceable to the fullest extent permissible as aforesaid.
18. NOTICE. Any notice required or permitted to be given hereunder
shall be deemed given when actually delivered by overnight courier, facsimile,
hand or United States mail, by registered or certified mail, return receipt
requested, postage prepaid, to the parties at the following addresses (or such
other address as may be given to the other party in writing):
To the Employer: Equity One, Inc.
0000 XX Xxxxx Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: President
(000) 000-0000 (facsimile)
To the Employee: Xx. Xxxxx Xxxxxxx
Equity One, Inc.
0000 XX Xxxxx Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
(000) 000-0000 (facsimile)
19. WAIVER OF BREACH. The waiver by any party hereto of a breach or
violation of any term or provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation.
20. ASSIGNMENT. Subject to the limitations below, this Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, representatives, successors and permitted assigns. The
Employer shall have the right to assign this Agreement and its rights hereunder
to any entity resulting from the reorganization, merger or consolidation of the
Employer or with any entity to which the Employer may sell all or substantially
all of its
11
assets. The Employee acknowledges that his obligations hereunder are personal
and unique and agrees that he will not assign this Agreement or any of his
rights or obligations hereunder, except that the Employee may assign this
Agreement to an entity or entities controlled by the Employee or the Employee's
immediate family; provided, however, that the Employee shall provide the
services required hereunder. For purposes of this Paragraph, the Employee or his
family shall be deemed to control an entity if the Employee and his immediate
family own, in the aggregate, at least a majority of the ownership interest of
such entity. Any attempted assignment in violation of this Paragraph shall be
void AB INITIO.
21. ATTORNEYS' FEES. The Employer shall reimburse the Employee for the
reasonable attorneys' fees and costs incurred by the Employee in connection with
the review, negotiation and execution of this Agreement. In the event either
party is required to seek legal counsel to enforce the terms and provisions of
this Agreement, the prevailing party in any action shall be entitled to recover
attorneys' fees and costs (including on appeal).
22. ARBITRATION. Except as to any action commenced pursuant to
Paragraph 16, in the event of any controversy or claim between the parties to
this Agreement arising out of, or relating to, this Agreement, or any breach
thereof, whether that claim sounds in tort, contract, or any other legal theory,
then that dispute shall be resolved by binding arbitration, and judgment upon
the award(s) rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The arbitral tribunal shall consist of one member,
appointed by agreement between the parties; failing such agreement, an
independent, neutral arbitrator will be appointed by the supervising authority.
Arbitration will be held in Miami, Florida, under the American Arbitration
Association's Rules of Commercial Arbitration and under the institutional
supervision of the American Arbitration Association. The procedural law
governing the arbitration shall be the law of Florida; the substantive law
applied by the arbitrator shall be the law of Florida. The proceedings shall be
conducted in the English language. Attorneys' fees and the costs of the
arbitration, including the fees of the arbitrator, shall ordinarily be charged
to the unsuccessful party, but the arbitrator shall have the power to apportion
the legal fees and costs as the arbitrator deems fair and appropriate.
23. ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties and supersedes all prior agreements, understandings and
arrangements, both oral and written, between the Employee and the Employer with
respect to the Employee's employment by the Employer, except as are set forth in
the Employee's employee handbook and all other plans, policies and procedures
applicable to the executives of the Employer generally. This Agreement may be
changed only by agreement in writing signed by both parties.
24. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
25. SURVIVAL. Notwithstanding the termination or expiration of this
Agreement, the obligations under Paragraphs 4(i), 11, 12, 13, 14, 15, 16, 17 and
22 of this Agreement shall survive and remain in full force and effect.
12
26. HEADINGS. The headings herein are for convenience of reference only
and shall not be deemed to be part of the substance of this Agreement.
27. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed and original but all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATTEST: EMPLOYER:
/s/ Xxxxxxx Guard EQUITY ONE, INC., a Maryland corporation
-----------------------------
/s/ Xxxx Merkur By: /s/ XXXXX XXXXXX
----------------------------- ---------------------------------
Xxxxx Xxxxxx, President
WITNESSES: EMPLOYEE:
/s/ Xxxxxx Xxxxxxxx /s/ XXXXX XXXXXXX
----------------------------- ------------------------------------
Xxxxx Xxxxxxx
13
EXHIBIT A
---------
2002 BONUS TARGET
The Target for the payment of the 2002 Bonus Amount to the Employee shall be
eight points. Points will be based on the indicated percentage increase for each
of the following components, comparing calendar 2002 to calendar 2001, based on
the Employer's audited financial statements, consistently applied, as follows:
1. EBIDTA Growth (excluding sale of properties)
Percentage
Growth Points
---------- ------
3% 1
6% 2
9% 3
18% 4
2. Funds From Operations (FFO) per the number of shares used in
computing basic earnings per share
Percentage
Growth Points
---------- ------
1% 1
1.5% 2
3% 3
4.5% 4
3. Basic Earnings Per Share (EPS)
Percentage
Growth Points
---------- ------
1% 1
1.5% 2
3% 3
4.5% 4
4. Discretion of the Compensation Committee:
Up to 4 additional points, at the discretion of the
compensation committee
