EXHIBIT 10.2
------------
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 XXXXXX (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
President and Chief Operating 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 President and Chief
Operating Officer of the Employer and shall report to the Chairman of the Board
and Chief Executive Officer of the Employer. Subject to the authority of the
Board of Directors and the Chairman of the Board, the Employee shall be in
charge of the day-to-day operations of the Employer's business and shall have
full authority and responsibility for supervising and managing the Employer's
properties. His powers shall include the authority to hire and fire personnel,
after consultation with the Chairman of the Board and Chief Executive Officer.
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 and Chairman of the
Board and Chief Executive Officer.
3. TIME DEVOTED. 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 all of his
business time, attention, skill and efforts as shall be required for the
faithful performance of his duties hereunder.
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 Three Hundred and Forty Thousand and No/l00 Dollars
(US$340,000.00) 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 60% 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 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
2
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.
(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 $247,500 and $2,153,470 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.
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 540,000 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, 200,000 Options; January 1,
2003, 200,000 Options; and January 1, 2004, 140,000 Options. The exercise price
of the 200,000 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 108,000 shares shall vest on the last day of each
year,
3
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, 90,000 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 90,000 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, 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.
4
(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)).
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 prior to the occurrence of a Change in Control (as
hereinafter defined) of the Employer or after the first anniversary of a Change
of Control, then: (i) the Employee shall be entitled to receive as of the date
of such termination a cash payment in an amount equal to 1.5 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, and (iii) all Options and restricted stock awards granted to the Employee
(including the Options granted pursuant to (ii) above) shall immediately vest.
(b) In the event that, during the one year period (the "Change of
Control Period") after a Change in Control of the Employer, the Employee resigns
or is terminated for any reason, 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 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, and (iii) all Options and restricted stock awards granted to
the Employee (including the Options granted pursuant to (ii) above) shall
immediately vest.
(c) For purposes of this Agreement, "Change in Control" shall be deemed
to have occurred upon:
5
(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);
(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
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."
(d) The Employee acknowledges and agrees that, notwithstanding anything
in this Agreement to the contrary, a Change of Control shall not be deemed to
have occurred for purposes of this Agreement if, after the consummation of any
of the events described in Paragraph 10(c), Xxxxx Xxxxxxx becomes or remains
Chairman of the Board or Chief Executive Officer of the Successor Employer (as
hereinafter defined) or if Gazit, Inc. and its affiliates own in the aggregate
50% or more of the outstanding voting securities of the Successor Employer. For
purposes of this Agreement, the term "Successor Employer" shall mean the
Employer, the reorganized, merged or consolidated Employer, or the acquiror
(through merger or otherwise) of all or substantially all of the business and
operations of the Employer, as the case may be.
6
11. RESIGNATION BY EMPLOYEE. The Employee shall at all times have the
right, upon 180 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.
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 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 and (ii) all
stock options and restricted stock awards granted to the Employee shall vest.
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, all stock options and restricted
stock awards granted to the Employee shall vest. 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. RESIGNATION FROM POSITIONS. Any termination of employment under
this Agreement, whether or not voluntary, will automatically constitute a
resignation, effective as of
7
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.
14. 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.
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.
15. 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,
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
8
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.
16. 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 15, 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 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.
17. 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
9
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: Chairman of the Board
(000) 000-0000 (facsimile)
To the Employee: Xx. Xxxxx Xxxxxx
Equity One, Inc.
0000 XX Xxxxx Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
(000) 000-0000 (facsimile)
18. 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.
19. 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 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.
20. 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).
21. ARBITRATION. Except as to any action commenced pursuant to
Paragraph 15, 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
10
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.
22. 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.
23. 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.
24. SURVIVAL. Notwithstanding the termination or expiration of this
Agreement, the obligations under Paragraphs 4(i), 11, 12, 13, 14, 15, 16 and 21
of this Agreement shall survive and remain in full force and effect.
25. HEADINGS. The headings herein are for convenience of reference only
and shall not be deemed to be part of the substance of this Agreement.
26. 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.
11
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 XXXXXXX
----------------------------- -------------------------------------
Xxxxx Xxxxxxx, Chairman of the Board
WITNESSES: EMPLOYEE:
/s/ Xxxxxx Xxxxxxxx /s/ XXXXX XXXXXX
----------------------------- ----------------------------------------
Xxxxx Xxxxxx
12
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
