CHAIRMAN COMPENSATION AGREEMENT
EXHIBIT
10.1
This
CHAIRMAN COMPENSATION AGREEMENT (“Agreement”) is made effective as of January 1,
2007 (“Effective Date”) by and between Equity One, Inc, a Maryland corporation
(the “Company”), and Xxxxx Xxxxxxx (“Chairman”), and replaces and supersedes in
its entirety, effective January 1, 2007, that certain Amended and Restated
Employment Agreement, dated as of July 26, 2002 and as Amended effective
September 1, 2003, between the Company and the Chairman.
RECITALS
The
Chairman is the founder of the Company and has acted as Chief Executive Officer
and Chairman of the Company since its inception.
The
Chairman has been employed by the Company pursuant to an employment agreement
made effective as of January 1, 2002, which superseded an earlier employment
agreement effective as of January 1, 1996.
The
Company recognizes that the Chairman’s talents, abilities and stature in the
industry are unique and have been, and in the future will be, integral to the
success of the Company. The Company believes that it is valuable to the Company
to retain the services of the Chairman and that the Chairman’s contribution to
the growth of the Company in the future will be substantial. The Company desires
to provide for the continued involvement of the Chairman on terms that will
encourage the Chairman to continue to attempt to increase the value of the
Company. The Chairman is willing to remain involved with the Company under
the
terms and conditions provided herein.
In
order
to effect the foregoing, the Company and the Chairman wish to enter into an
Agreement on the terms and conditions set forth below. Accordingly, in
consideration of the premises and the respective covenants and agreements of
the
parties herein contained, and intending to be legally bound hereby, the parties
hereto agree as follow:
The
Company desires to retain Chairman as of the Effective Date, on the terms and
conditions set forth in this Agreement, and Chairman desires to be so involved
with the Company.
IN
CONSIDERATION of the premises and the mutual covenants set forth below, the
parties hereby agree as follows:
AGREEMENT
1. Arrangement.
The
Company hereby agrees to retain the services of Chairman and Chairman hereby
agrees to be involved with the Company on the terms and conditions hereinafter
set forth.
2. Term.
The term
of this Agreement (the “Term”) shall commence on the Effective Date and shall
continue through December 31, 2010. This Agreement and the Term automatically
shall be renewed annually thereafter, unless either party gives the other party
prior written notice at least six months before the expiration of the Term
of
that party’s intent not to renew this Agreement.
3. Position
and Duties.
(a) Chairman;
Chief Executive Officer.
At all
times during the Term, subject to Chairman’s election to the Board and as
Chairman thereof, Chairman shall serve as the Chairman of the Board of Directors
of the Company (“Board”) and shall report solely and directly to the Board.
Until April 1, 2007, Chairman will also be the Chief Executive Officer of the
Company unless otherwise mutually agreed by Chairman and the Board to resign
as
Chief Executive Officer prior to that date. At the time Chairman ceases to
be
the Chief Executive Officer, the new Chief Executive Officer shall report to
the
Chairman. In whatever position Chairman occupies during the Term (including,
without limitation, Chairman and Chief Executive Officer), Chairman shall have
those powers and duties normally associated with such position and such other
powers and duties as the Board properly may prescribe, provided that such other
powers and duties are consistent with Chairman’s position at that time.
(b) Director.
During
the Term, the Company agrees to nominate Chairman as a member of the Board
for
each successive term and use reasonable good faith effort to cause Chairman
to
be elected as a member and Chairman of the Board, including, without limitation,
recommending Chairman to be elected as a member of the Board in the proxy
statement distributed to stockholders regarding the election of members of
the
Board.
(c) Other
Activities by Chairman.
The
Company recognizes that the Chairman presently is involved and may in the future
be involved with other ventures and businesses to which the Chairman will
devote, from time to time, his business time, attention, skill and efforts.
It
is understood and agreed that the Chairman may, directly or indirectly, engage
in other businesses in the United States consistent with his duties as Chairman
and as a Board member of the Company. Further, Chairman may, directly or
indirectly, engage in any businesses, without limitation, outside the United
States.
4. Place
of Performance.
The
Company agrees to provide the Chairman with the office he currently uses at
the
Company’s corporate headquarters in North Miami Beach, Florida. It is agreed
that the Chairman may engage in reasonable activities unrelated to the Company
at such office and utilize the resources of the Company in such activities,
including the reasonable use of personnel, equipment and telephone system.
5. Payments
and Related Matters.
(a) Bonus.
For
each calendar year during the Term commencing with calendar year 2007, Chairman
shall be eligible to receive a bonus (the "Bonus") to be determined in the
discretion of the Compensation Committee of the Board.
(b) Long
Term Incentive Compensation.
On
September 23, 2006, the Company issued to the Chairman, pursuant to the
Company’s 2000 Executive Incentive Compensation Plan (the “Incentive Plan”),
Options (as defined in the Incentive Plan) to acquire 437,317 shares of the
Company’s capital stock, with an exercise price of $24.12 per share. The parties
acknowledge that such options were granted as consideration to Chairman for
his
execution of this Agreement and vest in four equal installments on December
31,
2007, December 31, 2008, December 31, 2009 and December 31, 2010. Each Option
granted hereunder shall expire ten years from the date of the grant of such
Option.
In
addition, the Company agrees to issue to Chairman on the Effective Date,
pursuant to the Incentive Plan, 300,000 shares of Restricted Stock (as defined
in the Incentive Plan). The Restricted Stock shall vest in four equal
installments on January 1, 2008, 2009 and 2010 and December 31, 2010. Chairman
shall be entitled to receive dividends on the Restricted Stock, whether vested
or not, and the Company shall cause any Restricted Stock award made under the
Incentive Plan in satisfaction of the Company’s obligation hereunder to so
provide.
(c) Expenses.
The
Company shall reimburse Chairman for all reasonable expenses incurred by him
in
the discharge of his duties hereunder, including travel expenses, upon the
presentation of reasonably itemized statements of such expenses in accordance
with the Company’s policies and procedures now in force or as such policies and
procedures may be modified with respect to all senior executive officers of
the
Company. Any frequent flyer miles or points and similar benefits provided by
hotels, credit card companies and others received by Chairman in connection
with
his business travel shall be retained by Chairman for his personal
use.
(d) Home
Office.
The
Company shall provide, at the Company’s cost, Chairman with cellular telephones
and, at Chairman’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 Chairman to perform his duties hereunder.
The Company recognizes and agrees that Chairman (and any one authorized by
Chairman, 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 Chairman.
(e) Registration.
Any
stock options, restricted stock or unrestricted stock awarded to Chairman in
accordance with this Agreement shall relate to Shares covered by an effective
registration statement on Form S-8 (or any successor or replacement form) under
the Securities Act of 1933.
(f) Register
Existing Shares.
If at
any time during the term of this Agreement, the Company proposes to register
any
of its securities under the Securities Act of 1933, as amended, the Company
shall give Chairman the right and opportunity to register, each time that the
Company so proposes, any or all securities of the Company held by Chairman,
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 Chairman by the Company pursuant to any other contract or
arrangement.
6. Termination.
This
Agreement may be terminated during the Term under the following
circumstances:
(a) Death.
This
Agreement shall terminate upon Chairman’s death.
(b) Disability.
If, as
a result of Chairman’s incapacity due to physical or mental illness, Chairman
shall have been substantially unable to perform his duties hereunder for an
entire period in excess of one hundred twenty (120) days in any 12-month period,
the Company shall have the right to terminate this Agreement as a result of
Chairman’s “Disability”, and such termination in and of itself shall not be, nor
shall it be deemed to be, a breach of this Agreement.
(c) Without
Cause. The
Company shall have the right, subject to appropriate action of the Board, to
terminate this Agreement for any reason or for no reason, which termination
shall be deemed to be without Cause, and such termination in and of itself
shall
not be, nor shall it be deemed to be, a breach of this Agreement. The Company
shall not take action under this subsection (c) unless and until the Company
has
delivered to Chairman a copy of a resolution duly adopted by sixty-six and
two-thirds (66-2/3) of the Board (excluding Chairman and any employee of the
Company for purposes of determining such threshold) at a meeting of the Board
called and held for such purpose, approving and authorizing such
action.
(d) Cause.
The
Company shall have the right, subject to appropriate action of the Board, to
terminate this Agreement for Cause, and such termination in and of itself shall
not be, nor shall it be deemed to be, a breach of this Agreement. For purposes
of this Agreement, the Company shall have “Cause” to terminate this Agreement
upon Chairman’s:
(i) Breach
of
any material provisions of this Agreement;
(ii) Conviction
of a felony, capital crime or any crime involving moral turpitude, including
but
not limited to crimes involving illegal drugs or
(iii) Willful
misconduct that is materially economically injurious to the
Company.
For
purposes of this Section 6(d), no act, or failure to act, by Chairman shall
be
considered “willful” unless committed in bad faith and without a reasonable
belief that the act or omission was in the best interests of the Company;
provided, however, that the willful requirement outlined in paragraphs (iii)
above shall be deemed to have occurred if Chairman’s action or non-action
continues for more than ten (10) days after Chairman has received written notice
of the inappropriate action or non-action. Failure to achieve performance goals,
in and of itself, shall not be grounds for a termination for Cause.
Cause
shall not exist under paragraph (i) or (iii) above unless and until the Company
has delivered to Chairman a copy of a resolution duly adopted by sixty-six
and
two-thirds (66-2/3) of the Board (excluding Chairman and any employee of the
Company for purposes of determining such threshold) at a meeting of the Board
called and held for such purpose, finding that in the good faith opinion of
the
Board, Chairman was guilty of the conduct set forth in paragraph (i) or (iii)
and specifying the particulars thereof in detail. However, in the case of
conduct described in paragraph (i), Cause will not be considered to exist unless
Chairman is given 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 Board, within such 30 day
period. If Chairman has not cured such breach to the satisfaction of sixty-six
and two-thirds (66-2/3) of the Board (excluding Chairman and any employee of
the
Company for purposes of determining such threshold) within 90 days after the
date of such notice, the Company shall give notice of termination to the
Chairman.
(e) Following
Change in Control.
Chairman may terminate this Agreement for any reason, including death,
Disability or Cause, within twelve (12) months after a Change in Control occurs.
For purposes of this Agreement, such a termination is referred to as
“Termination Following Change in Control.” For this purpose, a Change in Control
means:
(i) Consummation
by the Company of (A) 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 that would result
in the holders of the voting securities of the Company outstanding immediately
prior thereto holding securities that 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 (B) a liquidation or dissolution of the Company or (C) the sale of all or
substantially all of the assets of the Company;
(ii) Individuals
who, as of the Effective Date, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board, provided
(A) that any person becoming a director subsequent to the Effective Date whose
election, or nomination for election by the Company’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 Company, as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the Securities
Exchange Act of 1934) or (B) any individual appointed to the Board 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 Company) by any person, entity or “group,”
within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, of more than 26% of either the then outstanding shares of the
Company’s common stock or the combined voting power of the Company’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 (A) the Company or its
subsidiaries, or (B) 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 Company or any affiliate
of such person, entity or “group.”
Notwithstanding
anything in (i), (ii) or (iii) above to the contrary, Chairman 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 Chairman or his
Affiliates (defined as any person that Chairman directly or indirectly controls)
of their shares of the Company’s Common Stock unless (1) such sale was approved
or recommended by a majority of the Incumbent Board (excluding Chairman and
any
employee of the Company), or (2) such sale was approved by a majority of the
Company’s stockholders that are not affiliated directly or indirectly with
Chairman or his Affiliates, or (3) the stockholders of the Company have the
right to participate, generally, in such sale on the same terms and conditions
as Chairman or his Affiliates.
(f) Voluntary
Termination Other Than Termination Following Change in
Control.
Chairman shall have the right to terminate this Agreement by providing the
Company with a Notice of Termination, as provided in Section 7 below. If such
termination occurs other than within 12 months Following a Change in Control
of
the Company, as defined in subsection (e) above, Chairman’s resulting
termination shall be considered as other than Termination Following a Change
in
Control. Any termination pursuant to this paragraph shall not in and of itself
be, nor shall it be deemed to be, a breach of this Agreement.
(g) Termination
of Agreement for Good Reason. Chairman
shall have the right to terminate this Agreement for Good Reason. For purposes
of this Agreement, Good Reason means:
(i) the
material breach by the Company of any of its agreements set forth herein and
the
failure of the Company to correct such breach within thirty (30) days after
the
receipt by the Company of written notice from Chairman specifying in reasonable
detail the nature of such breach; or
(ii) subject
to Section 3(b), failure to recommend to the Company’s stockholders Chairman’s
election to the Board and as Chair or the failure of the Board to nominate
or
elect him as Chair.
(h) Termination
by Company’s Shareholders.
If the
Chairman is removed from the Board, as provided in Section 5.8 of the Company’s
charter (or under any similar future provision under the Company’s charter),
then this Agreement shall immediately terminate. For purposes of Section 8
of
this Agreement, termination pursuant to this subsection (h) shall be considered
“Termination With Cause.”
7. Termination
Procedure.
(a) Notice
of Termination.
Any
termination of this Agreement by the Company or by Chairman during the Term,
except termination due to Chairman’s death pursuant to Section 6(a), shall be
communicated by written Notice of Termination to the other party hereto. For
purposes of this Agreement, a “Notice of Termination” shall mean a notice that
states the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for such termination under the provision so stated.
(b) Date
of Termination.
“Date
of Termination” shall mean (i) if this Agreement is terminated by his death, the
date of his death, and (ii) if this Agreement is terminated for any other
reason, the date on which a Notice of Termination is given or any later date
(within thirty (30) days after the giving of such notice) set forth in such
Notice of Termination.
8. Payments
Upon Termination or During Disability.
If
Chairman is disabled or this Agreement is terminated during the Term, the
Company shall provide Chairman with the payments and benefits set forth below:
(a) Disability;
Death.
If this
Agreement is terminated as a result of Chairman’s Disability pursuant to Section
6(b), or due to the Chairman’s death pursuant to Section 6(a):
(i) the
Company shall pay to Chairman or his estate, as the case may be, a lump sum
payment as soon as, practicable following the Date of Termination equal to
(A)
his most recent Bonus, if any, plus (B) the income tax payable (computed on
a
gross-up basis) on account of any stock option or restricted stock referred
to
in clause (ii) below.
(ii) all
stock
options and restricted stock granted to Chairman prior to the Date of
Termination shall fully vest as of the Date of Termination;
(iii) the
Company shall reimburse Chairman, pursuant to Section 5(c) hereof, or his
estate, as the case may be, for reasonable expenses incurred but not paid prior
to such termination; and
(iv) Chairman
or his estate or named beneficiaries shall be entitled to any other rights,
compensation and/or benefits as may be due to Chairman or his estate or named
beneficiaries in accordance with the terms and provisions of any agreements,
plans or programs of the Company.
(b) Termination
by Company Without Cause or Termination Following Change in Control or
Termination for Good Reason.
If this
Agreement is terminated by the Company without Cause or if the termination
is a
Termination Following a Change in Control, including as a result of the
Chairman’s death or Disability but not if such termination is by the Company for
Cause, or if Chairman terminates this Agreement for Good Reason:
(i) the
Company shall pay to Chairman as soon as practicable following the Date of
Termination a lump-sum payment equal to three times the sum of (a) the most
recent Bonus payment, if any, and (b) the value of 75,000 shares of restricted
stock (valued in the case of Termination Without Cause or Termination for Good
Reason at the average closing price of the Company's common stock on the
principal stock exchanges on which such common stock is then listed and traded
during the ten trading days prior to the Date of Termination and in the case
of
Termination Following Change in Control at the price of the Company's common
stock on the date of the Change in Control) plus (c) the value at the Date
of
Termination of options to acquire 109,329 shares of Company common stock at
$24.12 per share in accordance with the terms of the options referred to in
Section 5(b) based on the Black Scholes formula.
(ii) in
the
case of Termination by the Company without Cause or Termination for Good Reason,
all stock options and restricted stock granted to Chairman prior to the Date
of
Termination shall fully vest as of the Date of Termination;
(iii) in
the
case of Termination Following Change in Control, all stock options and
restricted stock granted to Chairman prior to the Date of Termination shall
fully vest at date of the Change in Control;
(iv) the
Company shall reimburse Chairman pursuant to Section 5(c) hereof, for reasonable
expenses incurred but not paid prior to such termination; and
(v) Chairman
shall be entitled to any other rights, compensation and/or benefits as may
be
due to Chairman in accordance with the terms and provisions of any agreements,
plans or programs of the Company;
(c) Cause
or By Chairman Other Than Termination Following Change in Control or Termination
for Good Reason.
If this
Agreement is terminated by the Company for Cause or if Chairman terminates
this
Agreement other than Following a Change in Control.
(i) the
Company shall reimburse Chairman pursuant to Section 5(c) hereof, for reasonable
expenses incurred, but not paid prior to such termination, unless such
termination resulted from a misappropriation of Company funds;
(ii) a
portion
of the number of shares of restricted stock and stock options that would have
vested on December 31st
of the
year of termination shall vest on the date of termination in accordance with
the
following formula:
(A) the
number of shares and number of options that would have vested on December
31st
of the
year of termination, each multiplied by
(B) a
fraction the numerator of which is the number of days in the year of termination
through the date of termination and the denominator of which is 365, with that
product further multiplied by
(C) Fifty
percent (50%);
(iii) all
other
unvested stock options and unvested restricted stock granted to Chairman shall
be forfeited; and
(iv) Chairman
shall be entitled, to any other rights, compensation and/or benefits as may
be
due to Chairman in accordance with the terms and provisions of any agreements,
plans or programs of the Company.
(d) Tax
Payment by the Company.
(i) If
any
amount or benefit paid or distributed to Chairman pursuant to this Agreement,
taken together with any amounts or benefits otherwise paid or distributed to
Chairman by the Company or any affiliated company (collectively, the "Covered
Payments"), are or become subject to the tax (the "Excise Tax") imposed under
Section 4999 of the Code, or any similar tax that may hereafter be imposed,
the
Company shall pay to Chairman at the time specified below an additional amount
(the "Tax Reimbursement Payment") such that the net amount retained by Chairman
with respect to such Covered Payments, after deduction of any Excise Tax on
the
Covered Payments and any Federal, state and local income or employment tax
and
Excise Tax on the Tax Reimbursement Payment provided for by this Section 8(d),
but before deduction for any Federal, state or local income or employment tax
withholding on such Covered Payments, shall be equal to the amount of the
Covered Payments.
(ii) For
purposes of determining whether any of the Covered Payments will be subject
to
the Excise Tax and the amount of such Excise Tax: (A) such Covered Payments
will
be treated as "parachute payments" within the meaning of Section 280G of the
Code, and all "parachute payments" in excess of the "base amount" (as defined
under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise
Tax, unless, and except to the extent that, in the good faith judgment of the
Company's independent certified public accountants appointed prior to the date
of the Change in Control or tax counsel selected by such accountants (the
"Accountants"), the Company has a reasonable basis to conclude that such Covered
Payments (in whole or in part) either do not constitute "parachute payments"
or
represent reasonable compensation for personal services actually rendered
(within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the
allocable "base amount," or such "parachute payments" are otherwise not subject
to such Excise Tax, and (B) the value of any non-cash benefits or any deferred
payment or benefit shall be determined by the Accountants in accordance with
the
principles of Section 280G of the Code.
(iii) For
purposes of determining the amount of the Tax Reimbursement Payment, Chairman
shall be deemed to pay: (A) Federal income, social security, Medicare and other
employment taxes at the highest applicable marginal rate of Federal income
taxation for the calendar year in which the Tax Reimbursement Payment is to
be
made, and (B) any applicable state and local income or other employment taxes
at
the highest applicable marginal rate of taxation for the calendar year in which
the Tax Reimbursement Payment is to be made, net of the maximum reduction in
Federal income taxes that could be obtained by Chairman from the deduction
of
such state or local taxes if paid in such year.
(iv) The
Tax
Reimbursement Payment (or portion thereof) provided for above shall be paid
to
Chairman not later than 10 business days following the payment of the Covered
Payments.
(v) If
the
Excise Tax is subsequently determined by the Accountants or pursuant to any
proceeding or negotiations with the Internal Revenue Service to be less than
the
amount taken into account hereunder in calculating the Tax Reimbursement Payment
made, Chairman shall repay to the Company, at the time of such determination,
the portion of the prior Tax Reimbursement Payment that would not have been
paid
if the reduced Excise Tax had been taken into account in initially calculating
the Tax Reimbursement Payment, plus interest on the amount of such repayment
at
the rate provided in Section 1274(b)(2)(b) of the Code. Notwithstanding the
foregoing, if any portion of the Tax Reimbursement Payment to be refunded to
the
Company has been paid to any Federal, state or local tax authority, repayment
thereof shall not be required until actual refund or credit of such portion
has
been made to Chairman, and interest payable to the Company shall not exceed
interest received or credited to Chairman by such tax authority for the period
it held such portion. Chairman and the Company shall mutually agree upon the
course of action to be pursued (and the method of allocating the expenses
thereof) if Chairman's good faith claim for refund or credit is
denied.
(vi) If
the
Excise Tax is later determined by the Accountants or pursuant to any proceeding
or negotiations with the Internal Revenue Service to exceed the amount taken
into account hereunder at the time the Tax Reimbursement Payment is made
(including, but not limited to, by reason of any payment the existence or amount
of which cannot be determined at the time of the Tax Reimbursement Payment),
the
Company shall make an additional Tax Reimbursement Payment in respect of such
excess (plus any interest or penalty payable with respect to such excess) at
the
time that the amount of such excess is finally determined.
(e) Tax
Compliance Delay in Payment.
If
the
Company reasonably determines that any payment or benefit due under this Section
8, or any other amount that may become due to Chairman after termination of
this
Agreement, is subject to Section 409A of the Internal Revenue Code of 1986
(“Code”), as amended, and that Chairman is a “specified employee,” as defined in
Code Section 409A, upon termination of this Agreement for any reason other
than
death, no amount may be paid to Chairman earlier than six months after the
date
of termination of this Agreement, and payment shall be made, or commence to
be
made, as the case may be, on the date that is six months and one day after
termination of this Agreement, together with interest at the rate of five
percent (5%) per annum beginning with the date one day after termination of
this
Agreement until the date of payment.
9. Repayment.
Chairman
acknowledges and agrees that the bonuses and other incentive-based or
equity-based compensation received by him from the Company with respect to
and
during the time of his service as Chief Executive Officer, and any profits
realized from the sale of securities of the Company, are subject to the
forfeiture requirements set forth in the Xxxxxxxx-Xxxxx Act of 2002 and other
applicable laws, rules and regulations, under the circumstances set forth
therein. If any such forfeiture is required pursuant to the Xxxxxxxx-Xxxxx
Act
of 2002 or other applicable law, rule or regulation, within thirty (30) days
after notice thereof from the Company, Chairman shall pay to the Company the
amount required to be forfeited.
10. Chairman’s
Successors.
No
rights
or obligations of Chairman under this Agreement may be assigned or transferred
by Chairman; provided however, that any cash payments payable to Chairman
hereunder or any stock options or restricted stock may be assigned by Chairman
to any third party, including transfer or by will or the laws of descent and
distribution. Upon Chairman’s death, this Agreement and all rights of Chairman
hereunder shall inure to the benefit of and be enforceable by Chairman’s
beneficiary or beneficiaries, personal or legal representatives, or estate,
to
the extent any such person succeeds to Chairman’s interests under this
Agreement. Chairman shall be entitled to select and change a beneficiary or
beneficiaries to receive any benefit or compensation payable hereunder at any
time or following Chairman’s death by giving the Company written notice thereof.
In the event of Chairman’s death or a judicial determination of his
incompetence, references in this Agreement to Chairman shall be deemed, where
appropriate, to refer to his beneficiary(ies), estate or other legal
representative(s). If Chairman should die following his Date of Termination
while any amounts would still be payable to him hereunder if he had continued
to
live, all such amounts unless otherwise provided herein shall be paid in
accordance with the terms of this Agreement to such person or persons so
appointed in writing by Chairman, or otherwise to his legal representatives
or
estate.
11. Notice.
All
notices or other communications that are required or permitted hereunder shall
be in writing and sufficient if delivered personally, or sent by
nationally-recognized, overnight courier or by registered or certified mail,
return receipt requested and postage prepaid, addressed as follows:
|
To
the Company:
|
0000
XX Xxxxx Xxxxxxx Xxxxx
Xxxxx,
Xxxxxxx 00000
Attention:
General Counsel
|
|
To
Chairman:
|
Xx.
Xxxxx Xxxxxxx
0000
XX Xxxxx Xxxxxxx Xxxxx
Xxxxx,
Xxxxxxx 00000
|
or
to
such other address as any party may have furnished to the others in writing
in
accordance herewith. All such notices and other communications shall be deemed
to have been received (a) in the case of personal delivery, on the date of
such
delivery, (b) in the case of delivery by nationally-recognized, overnight
courier, on the business day following dispatch and (c) in the case of mailing,
on the third business day following such mailing.
12. Attorneys’
Fees.
The
Company shall reimburse Chairman for the reasonable attorneys’ fees and costs
incurred by Chairman in connection with the review, negotiation and execution
of
this Agreement. If 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 reasonable attorneys’ fees and costs (including on
appeal).
13. Miscellaneous.
No
provisions of this Agreement may be amended, modified, or waived unless such
amendment or modification is agreed to in writing signed by Chairman and by
a
duly authorized officer of the Company, and such waiver is set forth in writing
and signed by the party to be charged. No waiver by either party hereto at
any
time of any breach by the other party hereto of any condition or provision
of
this Agreement to be performed by such other party shall be deemed a waiver
of
similar or dissimilar provisions or conditions at the same or at any prior
or
subsequent time. No agreements or representations, oral or otherwise, express
or
implied, with respect to the subject matter hereof have been made by either
party that are not set forth expressly in this Agreement. The respective rights
and obligations of the parties hereunder of this Agreement shall survive the
termination of this Agreement to the extent necessary for the intended
preservation of such rights and obligations. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws
of
the State of Florida without regard to its conflicts of law
principles.
14. Validity.
The
invalidity or unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
15. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together will constitute one and
the
same instrument.
16. Entire
Agreement.
This
Agreement sets forth the entire agreement of the parties hereto in respect
of
the subject matter contained herein and supersede all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, director, employee or
representative of any party hereto in respect of such subject matter. Any prior
agreement of the parties hereto in respect of the subject matter contained
herein is hereby terminated and canceled.
17. Withholding.
All
payments hereunder shall be subject to any required withholding of Federal,
state and local taxes pursuant to any applicable law or regulation.
18. Noncontravention.
The
Company represents to Chairman that the Company is not prevented from entering
into, or performing this Agreement by the terms of any law, order, rule or
regulation, its by-laws or certificate of incorporation, or any agreement to
which it is a party, other than that which would not have a material adverse
effect on the Company’s ability to enter into or perform this Agreement.
Chairman represents to the Company that he is not a party to any agreement
that
would preclude him from entering into or performing this Agreement.
19. Section
Headings.
The
section headings in this Agreement are for convenience of reference only, and
they form no part of this Agreement and shall not affect its
interpretation.
[The
remainder of this page is intentionally left blank]
The
parties hereto have executed this Agreement effective as provided above.
| EQUITY ONE, INC. | ||
| Date: October 17, 2006 | By: | /s/ XXXX XXXXXXXXXX |
|
Name
Xxxx Xxxxxxxxxx
Title Chair, Compensation Committee of the Board of
Directors of Equity One,
Inc.
|
||
| |
|
|
| Date: October 17, 2006 | /s/ XXXXX XXXXXXX | |
|
Name Xxxxx Xxxxxxx |
||
