Exhibit 10.1
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FIRST AMENDMENT TO AMENDED AND RESTATED
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EMPLOYMENT AGREEMENT
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This FIRST AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
"Amendment"), is made this 1st day of September, 2003, between EQUITY ONE, INC.,
a Maryland corporation (the "Company") and Xxxxx Xxxxxxx (the "Employee").
The Company and the Employee have heretofore entered into an Amended and
Restated Employment Agreement dated as of July 26, 2002 (the "Agreement")
(capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Agreement). Given the growth of the Company, the Compensation
Committee of the Board of Directors of the Company and the Employee have agreed
to amend the Agreement on the terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises, the parties agree as
follows:
1. Amendments. Effective as of the date hereof, the Agreement shall be
amended as follows:
(a) Section 4(b) of the Agreement shall be amended in its entirety to read
as follows:
"(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") by the Company. For
calendar year 2002, the targeted Bonus opportunity shall be
equal to 60% of the Employee's then Base Salary, and for
each calendar year thereafter, the targeted Bonus
opportunity shall be equal to 75% 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 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; 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 ("High Performance"),
the Employee shall be entitled to one and one half of the
Bonus Amount; and for achieving 200% or more of the Targets
("Super Performance"), the Employee shall be entitled to two
time the Bonus. 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 and
shall vest over a period of two (2) years. The restricted
stock shall be issued under the Company's Incentive Plan (as
defined below) or other, similar plan and shall be subject
to such other terms as are contained in the Company's then
current form of restricted stock agreement."
(b) Section 5 of the Agreement shall be amended in its entirety
to read as follows:
"(a) 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.
(b) In addition, the Employer agrees to issue to the
Employee, pursuant to the Incentive Plan, 227,500 shares of
Restricted Stock (as defined in the Incentive Plan). 103,500
shares of Restricted Stock (the "Initial Grant") were issued
prior to the execution hereof and shall vest in five equal
installments on January 1, 2003, 2004, 2005 and 2006 and
December 31, 2006. The remaining 124,000 shares of
Restricted Stock (the "Additional Grant") shall be issued on
or about September 10, 2003 and shall vest in five equal
installments on September 9, 2004, 2005 and 2006 and
December 31, 2006. The Employee shall be entitled to receive
dividends on the Initial Grant and Additional Grant of
Restricted Stock, whether vested or not.
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(c) Finally, as additional "Bonus" payable under
Section 4(b), (a) in the case of High Performance for any
calendar year, the Employer agrees to issue to the Employee,
pursuant to the Incentive Plan, a number of shares of
Restricted Stock having a value, based on the 30-day
trailing average closing price of the Employer's common
stock as reported on the New York Stock Exchange (the
"30-day Average") for the period ending on (and inclusive
of) December 31 of the year of High Performance, of $300,000
(rounded up to the nearest whole share) or (b) in the case
of Super Performance for any calendar year, the Employer
agrees to issue to the Employee, pursuant to the Incentive
Compensation Plan, a number of shares of Restricted Stock
having a value, based on the 30-day Average for the period
ending on (and inclusive of) December 31 of the year of
Super Performance, of $850,000 (rounded up to the nearest
whole share). Any shares to be issued pursuant to this
paragraph shall be issued by the Employer within five (5)
days of its payment of the Bonus earned under Section 4(b)."
(c) Section 10(a) of the Agreement shall be amended in its
entirety to read as follows:
"(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 of Control (as hereinafter defined),
then: (i) the Employee shall be entitled to receive as of
the date of such resignation a cash payment in an amount
equal to 2.99 times (A) the sum of his then Base Salary and
the amount of his Bonus payment, if any (including the
dollar value of the Restricted Stock issued to the Employee
as additional Bonus under Section 5(c)), for the then most
recently completed fiscal year, and (B) the then-current
"value" of a pro rata portion of the annual Incentive
Compensation awarded (or to be awarded) to the Employee
under Section 5(a) and (b) (e.g., the "value" of 51,700
shares of Restricted Stock [one-fifth of 103,500 shares and
one-fourth of 124,000 shares] and 170,000 Stock Options),
(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,
and (iii) all Options and restricted stock awards granted to
the Employee (including the Options granted pursuant to (ii)
above) shall immediately vest. For purposes hereof, the
"value" to be assigned to the Incentive Compensation under
subsection (i)(B) shall be equal to (x) in the case of the
51,700 shares of Restricted Stock, the product of the 30-day
Average for the period ending on (and inclusive of) the day
before the Change of Control, times 51,700, and (y) in the
case of the 170,000 Stock Options, the product of (1) the
difference between the weighted-average exercise price of
such Stock Options awarded under Section 5(a) and the 30-day
Average for the period ending on (and inclusive of) the day
before the Change of Control, times (2) 170,000."
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(d) Section 10(c) of the Agreement shall be amended in its
entirety to read as follows:
(a) 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, other than a
reorganization, merger or consolidation or other
transaction which would result in the holders of the
voting securities of the Employer outstanding
immediately prior thereto holding securities which
represent immediately after such transaction more than
50% of the combined voting power of the voting
securities of the Company or the surviving company or
the parent of the surviving company, 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); or
2. Effective Date. This Amendment shall be effective upon its
execution by the Company and the Employee.
3. Counterparts. This Amendment may be executed in counterparts
and by different parties hereto in separate counterparts each of
which, when so executed and delivered, shall be deemed to be an
original and all of which, when taken together, shall constitute one
and the same instrument.
4. No Other Modification. Except as otherwise expressly modified
by the terms and provisions of this Amendment, the Agreement shall
remain in full force and effect, and is hereby in all respects
confirmed and ratified by the parties hereto.
5. References to Agreement. From and after the effective date
hereof, each reference in the Agreement to "this Agreement," "hereto,"
"hereunder" or words of like import, and all references to the
Agreement in any and all agreements, instruments, documents, notes,
certificates and other writings of every kind and nature shall be
deemed to mean the Agreement as modified and amended by this
Amendment.
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IN WITNESS WHEREOF, the Company and the Employee have executed
this First Amendment to Amended and Restated Employment Agreement as
of the date first written above.
THE COMPANY:
EQUITY ONE, INC
By: /s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
President and Chief Operating Officer
THE EMPLOYEE:
/S/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
