EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made effective as of January 1, 1996,
between EQUITY ONE, INC., a Maryland Corporation ("Employer") and XXXXX XXXXXX
(the "Employee").
WITNESSETH:
WHEREAS, the Employer desires to employ the Employee as its assets
manager and executive vice president on the terms and conditions set forth in
this Agreement; and
WHEREAS, the Employee desires to accept such employment on the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and 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 on the date hereof,
and shall continue for a period of seven (7) years and shall be automatically
renewable for an additional seven (7) year term unless either party gives the
other party prior written notice of intent not to renew at least 180 days prior
to the expiration of the initial term.
2. Duties. The Employee is engaged to act as the Asset Manager and
Executive Vice President of the Employer. The Employee shall be in control of
day-to-day operations of the Employer's and the Employer's affiliates
properties. The Employee shall report directly to the President and Chief
Executive Officer of the Employer and shall have full authority and
responsibility for administering the Employer's properties in all respects. His
powers shall include the authority to hire and fire personnel, in consultation
with the President. In addition, the Employee
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shall have such other duties as may from time to time be reasonably assigned to
him by the President of the Employer.
3. Time Devoted. During the period of his employment hereunder, and
except for illness, reasonable vacation periods 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 on the basis of a five-day work week, excluding state, federal and
religious holidays observed.
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 as
compensation $180,000.00 per annum for the first year, payable in quarterly
installments, on the first day of each calendar quarter.
b. The salary of the Employee may be supplemented by a bonus for
outstanding services rendered to the Employer, as determined by the Board of
Directors of the Employer and the President in their sole and absolute
discretion.
c. The Employer shall provide the Employee with a suitable automobile,
including all related maintenance, repairs, insurance, and other costs. Such
automobile may be used by the Employee and the Employee's immediate family and
domestic servants at no cost to the Employee.
d. The Employer shall provide the Employee with cellular telephones
(portable and in the car), business telephone lines and related telephone and
computer systems, and other office equipment and furnishings at his house and
the costs of any service therefor, which the parties recognize are necessary to
the Employee's performance of his duties hereunder. The Employer recognizes and
agrees that the Employee and domestic servants shall have personal use of said
telephones, equipment and furnishings at no cost to the Employee. The Employee
shall also be permitted to make reasonable use, for purposes of his personal
affairs, of the Employer's offices,
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equipment and administrative staff, provided such use does not adversely affect
the Employer's operations.
e. Compensation for the second year and any additional years, shall be
increased on January 1st of each year, commencing on January 1, 1997, by the
greater of six percent (6.00%) or the rate of increase of the Consumer Price
Index as determined by the United States Department of Labor for the year
immediately preceding each anniversary of this Agreement.
f. The Employer shall reimburse the Employee for all reasonable expenses
incurred by him in the discharge of his duties hereunder, including, but not
limited to, transportation, hotel accommodations and other lodging, local and
long distance telephone, tolls, couriers, postage, overnight and similar bulk
and express package delivery services. The Employer shall provide the Employee
with credit cards issued in the name of the Employer, and balances thereon shall
be payable by the 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.
g. 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.
5. Options. The Employer shall issue to the Employee, pursuant to the
Employer's existing Stock Option Plan or other similar plan, options to acquire
75,000 shares of the Employer's capital stock, at an exercise price of $24.75
per share, such price to change downward only each fiscal year by the amount
that the dividends declared and paid for the immediately preceding fiscal year
exceed the dividend declared and paid for fiscal year 1995, such options to be
vested over (four) 4 years, 18,750 shares each year, commencing on January 1,
1997, and on the first day of each year, until all options vest. The options
granted hereunder shall expire on December 31, 2006, regardless of date of
vesting or issuance.
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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, subject
to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements.
7. Vacation; Days Off. The Employee shall be entitled to take up to
twenty-four (24) days of vacation, at times to be determined by the Employee
with the approval of the Employer.
8. Illness. The Employee shall be entitled to take up to thirty (30)
days of sick leave per year.
9. Termination for Cause.
a. The Employee may be terminated immediately following notice by the
Employer for "cause." For this purpose the term "cause" shall be determined by
the affirmative vote of eighty percent (80.00%) of the members of the Board of
Directors of the Employer voting at any regular or special meeting, such
determination to be made in any of the following categories only:
(1) The material breach of 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 injurious
act of fraud or dishonesty against the Employer.
b. After receipt of notice, unless "cause" is by reason of subsection
(1) or (2), in which case the Employee shall have thirty (30) days to remedy
such breach, or if the breach cannot be cured in such thirty (30) day period, to
commence to cure to the satisfaction of the Employer's Board of Directors. If
the Employee has not cured such breach to the satisfaction of the Board of
Directors at the end of ninety (90) days, the Employer shall give notice of
termination to the Employee and the parties shall thereafter be relieved of all
further obligations hereunder.
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1O. Information.
a. Without the prior written consent of the Employer or as 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, firm, association, or Employer, or use for his own benefit, gain, or
others, any plans, products, data, results of tests and data, customer lists, 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
instruction 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 unpublished or not
readily available to the general public.
b. Upon the termination of his employment by the Employer, the
Employee will immediately deliver to the Employer all lists, books, records,
data, and other information (including all copies) of every kind relating to or
connected with the Employer and its activities, business and customers.
11. Non-Competition.
a. The Employee specifically agrees that, in the case of his
termination under this Agreement, for a period of one (1) year (the
"Non-Competition Period") from and after the time of termination of his
employment, the Employee shall not, in the States of Florida and Texas, without
the prior written consent of the Employer, directly or indirectly, (i) own or
control, or actively participate in the ownership or control of any line of
business or enterprise that directly competes with the Employer in any business
of the Employer existing or proposed at the time the Employee shall cease to
perform services hereunder wherever located; (ii) interfere with or disrupt or
attempt to disrupt, any past or present or prospective relationship, contractual
or otherwise, between the Employer and any customer, supplier, sales
representative, 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 salaries or otherwise,
union or non-union) who within
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one (1) 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, within the previous year, was a customer of the Employer or any present or
future customer of the Employer (including without limitation customers
previously or in the future generated or produced by Employee), in any manner
which interferes or might interfere with such customer's relationship with the
Employer, or in an effort to obtain such customer as a customer of any person
which conducts business competitive with the Employer's business.
Notwithstanding the foregoing and not intended as a limitation on Employee,
Employee may participate as a passive investor in any venture.
b. In the event the Employee is terminated without cause, upon
termination: (i) all compensation due under the balance of the terms of this
Agreement shall be paid to the Employee, (ii) all stock options granted to the
Employee shall vest, and (iii) the Employer shall pay to the Employee all legal
fees and expenses incurred by the Employee as a result of termination (including
all such fees and expenses, if any, incurred in contesting or disputing any such
termination or in seeking to enforce any right or benefit provided by this
Agreement).
12. 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 11, above, 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 hereof 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
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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) if 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.
13. Notice. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and sent by certified mail, return
receipt requested, 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.
000-00xx Xxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
To the Employee: XXXXX XXXXXX
000 Xxxx 0xx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
14. Waiver of Breach. The waiver by the Employer or the Employee of a
breach of any condition of the Agreement by the Employee shall not be construed
as a waiver of any subsequent breach by the Employee.
15. Assignment/Change of Control. 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
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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. Such
reorganization, merger or consolidation of the Employer or with any entity to
which thc Employer may sell all or substantially all of its assets shall be
defined as a Change of Control. For purposes of this Agreement, there shall be
no Change of Control in any instance whereby XXXXX XXXXXXX is President and
Chairman of the Board of Directors of the successor entity, or Gazit, Inc.,
controls, directly or indirectly, 50% or more of the Board of Directors of the
successor entity and Gazit, Inc. is controlled by XXXXX XXXXXXX. In the event
XXXXX XXXXXXX is not the President and Chairman of the Board of Directors of the
successor entity, or Gazit, Inc., does not control, directly or indirectly, 50%
or more of the Board of Directors of the successor entity and Gazit, Inc. is not
controlled by XXXXX XXXXXXX, Xxxxxx shall have the right to consent, in his sole
and arbitrary discretion, to such assignment. Should Valero decline to consent,
the provisions of Paragraph 11 b. would apply. 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. Any
attempted assignment in violation of this Paragraph 15 shall be void.
16. Attorneys' Fees. 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 attorney's fees and costs
(including on appeal).
17. Arbitration. Except as to any action commenced pursuant to Paragraph
12, above, in the event of any controversy or claim between the parties to this
Agreement arising out of, or relating tto, 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 birding arbitration, and judgment upon
the award(s) rendered by the arbitrators 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, a neutral
arbitrator will be appointed by the supervising authority. Arbitration will be
held in Miami, Florida; the substantive law applied by the arbitrator shall be
the law of Florida. The proceedings shall be conducted in the English language.
Attorney's fees and the costs of the
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arbitration, including the fees of the arbitrator, shall ordinarily be charged
to the unsuccessfull party, but the tribunal shall have the power to apportion
the legal fees and costs as it deems just.
18. Entire Agreement. This Agreement contains the entire agreement of
the parties. It may be changed only by agreement in writing signed by both
parties.
19. Survival. Notwithstanding the termination of the Employee's
employment hereunder by the Employer for cause, the obligations under
Paragraphs 10, 11 and 12 of this Agreement shall survive and remain in full
force and effect.
20. Headings. The headings herein are for convenience of reference
only and shall not be deemed to be part of the substance of this Agreement.
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
EMPLOYER:
EQUITY ONE, INC.,
a Maryland Corporation
Attest:
/s/ Xxxxxx X Xxxxx
------------------
By: /s/ Xxxxx Xxxxxxx
---------------------------------
XXXXX XXXXXXX, President
/s/ [illegible]
---------------------------------- EMPLOYEE:
Witness Signature
/s/ [illegible] /s/ Xxxxx Xxxxxx
---------------------------------- ---------------------------------
Witness Signature XXXXX XXXXXX
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