Exhibit 10.26
AMENDMENT TO EMPLOYMENT AGREEMENT
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THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment") is entered into on
the 1st day of February 2002 (the "Amendment Date") to be effective as of April
2, 2002 (the "Effective Date"), by and between ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Executive")
and JDN Realty Corporation (the "Company").
RECITALS
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WHEREAS, the Company previously entered into an Employment Agreement (the
"Employment Agreement") with Executive, dated November 17, 2000 (the "Execution
Date") and made effective as of April 2, 2000; and
WHEREAS, the Company and Executive desire to extend the term of the
Employment Agreement until December 14, 2002; and
WHEREAS, the Company and Executive desire to amend the Employment Agreement
effective as of the Effective Date in the manner contemplated by this Amendment.
In consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed by the parties as follows:
I. AMENDMENTS AND ADDITIONS TO EMPLOYMENT AGREEMENT
1.1. Section 3 of the Employment Agreement shall be amended by deleting such
provision in its entirety and replacing it with the following:
3. Employment Period. Except as otherwise provided herein, the term of
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this Agreement (the "Employment Period") shall end on December 14,
2002. The Employment Period may be extended by mutual written
agreement of Executive and the Company upon such terms, provisions and
conditions which are mutually acceptable to Executive and the Company.
1.2. Section 5(a) of the Employment Agreement shall be amended by deleting such
provision in its entirety and replacing it with the following:
(a) Base Salary. From April 2, 2002 until the end of the Employment
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Period, the Company shall pay to Executive as compensation for the
services to be performed by Executive a base salary of $400,000 per
year. The base salary shall be payable in installments in accordance
with the Company's normal payroll practice and shall be subject to
such ordinary employee
withholdings as may be required by law.
1.3. Section 5(b)(i) of the Employment Agreement shall be amended by deleting
such provision in its entirety and replacing it with the following:
(i) Bonuses. In addition to the compensation set forth elsewhere in
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this Section 5, for the year ending on December 31, 2002, Executive
shall be entitled to receive a bonus as follows:
Executive shall be entitled to receive a bonus equal to 100% of his
base salary each year during the term of this Agreement in the event
that Actual Per Share FFO (as defined herein) is greater than or equal
to the Target Per Share FFO (as set forth herein) for the
corresponding fiscal year. The Target Per Share FFO for the fiscal
year ending December 31, 2002 is $1.25 and the base salary for the
fiscal year ending December 31, 2002 is $400,000; provided that if the
Company at any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) its outstanding shares of common stock
into a greater number of shares, the Target Per Share FFO in effect
immediately prior to such issuance or subdivision shall be
proportionately reduced, and if the Company at any time reduces the
number of its outstanding shares of common stock or combines (by
reverse stock split or otherwise) its outstanding shares of common
stock into a smaller number of shares, the Target Per Share FFO in
effect immediately prior to such reduction or combination shall be
proportionately increased; provided that no adjustment hereunder will
be required unless the effect of such reduction or increase (together
with any other previously unmade adjustments, which shall be made
collectively with the next required adjustment) does not result in the
reduction or increase of the Target Per Share FFO by at least $0.01.
The bonus payable to Executive under this Section 5(b)(i) shall be
reduced by an amount equal to 1.67% of Executive's then-current base
salary for each percentage point that the Actual Per Share FFO for the
applicable fiscal year is below the Target Per Share FFO for that
fiscal year. The bonus payable to Executive under this Section 5(b)(i)
shall be paid on or before February 28 of the next fiscal year
commencing after the fiscal year upon which such bonus is based unless
required to be paid earlier pursuant to separate provisions of this
Agreement. In the event that Executive's employment with the Company
terminates prior to December 31, 2002, the bonus earned by Executive
hereunder shall be calculated by: (i) annualizing the FFO per share of
outstanding common stock of the Company for the period from January 1,
2002 until the date of Executive's termination (adjusted for any
one-time or nonrecurring charges
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incurred by the Company during that period); (ii) comparing the
resulting annualized FFO to the Target Per Share FFO; (iii) applying
the criteria for determining Executive's bonus set forth herein to
determine the annual bonus that would be payable to Executive based
upon the annualized FFO; and (iv) prorating such amount based upon the
number of days worked by Executive during the year commencing on
January 1, 2002 and ending on December 31, 2002. For purposes of this
Agreement, "Actual Per Share FFO" shall mean net income of the Company
for the fiscal year for which Actual Per Share FFO is being
calculated, computed in accordance with generally accepted accounting
principles, excluding gains or losses from debt restructuring and
sales of property, plus depreciation and amortization of real estate
assets, and after adjustments for unconsolidated partnerships and
joint ventures, applying accounting principles consistently with prior
periods divided by the number of outstanding shares of the Company as
of the last day of the fiscal year for which the Actual Per Share FFO
is being calculated based upon JDN Realty Corporation's audited
financial statements for such period. Notwithstanding anything to the
contrary in this Amendment, the Target Per Share FFO for the fiscal
year ended December 31, 2002 is subject to amendment by the Board of
Directors in its sole discretion based on its review of the final 2002
annual budget of the Company; and Executive hereby agrees and
acknowledges that this Amendment may be unilaterally amended by the
Board of Directors in its sole direction to reflect a different Target
Per Share FFO for the year ending December 31, 2002, which amendment
shall be provided to Executive in writing.
The Executive shall also be eligible to receive such other bonuses or
incentive payments as may be approved by the Board of Directors.
For purposes of the remainder of this Employment Agreement, commencing
on the Effective Date "Base Salary" shall mean Four Hundred Thousand
Dollars ($400,000).
1.4 Section 5(b)(ii) of the Employment Agreement shall be amended by adding the
following language to the end of such Section:
In addition to the stock options granted on the Execution Date, if
Executive's employment with the Company has not been terminated as of
April 2, 2002, pursuant to a certain Stock Option Agreement to be
dated as of April 2, 2002, Executive will be granted options to
acquire 70,000 shares of the common stock of the Company at a
per-share exercise price of the closing price as of April 1, 2002, all
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of which will vest and become exercisable on December 13, 2002 (i.e.
prior to expiration of the Employment Agreement). Any unexercised
options shall expire ten years from the date of grant. Notwithstanding
anything to the contrary contained herein, the options referenced in
this Section 5(b)(ii) shall be subject to the terms of the JDN Realty
Corporation 1993 Incentive Stock Option Plan, as amended, and any
agreement between Executive and the Company pursuant thereto.
1.5 Section 5(b)(iii) of the Employment Agreement shall be amended by adding
the following language to the end of such Section:
In addition to restricted stock granted on the Execution Date, (i) on
the Amendment Date, pursuant to a Restricted Stock Agreement between
Executive and the Company, to be dated as of the Amendment Date,
Executive will be issued 3,000 shares of restricted common stock, all
of which shall vest and become transferable, subject to applicable
federal and state securities laws, on December 13, 2002, or such
earlier date as such shares of restricted stock may become vested and
exercisable under separate provisions of this Agreement and (ii) if
Executive's employment with the Company has not been terminated as of
April 2, 2002, pursuant to a Restricted Stock Agreement between
Executive and the Company, to be dated as of April 2, 2002, Executive
will be issued 13,000 shares of restricted common stock, all of which
shall vest and become transferable, subject to applicable federal and
state securities laws, on December 13, 2002, or such earlier date as
such shares of restricted stock may become vested and exercisable
under separate provisions of this Agreement. Notwithstanding anything
to the contrary contained herein, the shares of restricted stock
referenced in this Section 5(b)(iii) shall be subject to the terms of
the JDN Realty Corporation 1993 Incentive Stock Plan, as amended, and
any agreement between Executive and the Company pursuant thereto.
1.6. Section 8(a) and Section 8(a)(i) of the Employment Agreement shall be
amended by deleting such provisions in their entirety and replacing them
with the following:
(a) Termination Upon Change in Control or Termination Other than for
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Cause. In the event that Executive's employment is terminated in a
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termination Upon a Change in Control or a termination Other than For Cause,
Executive shall be paid the following severance compensation:
(i) From the date of Executive's termination until December 14,
2002 (the "Remainder Period"), an amount (payable on
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the dates specified in Section 5(a) except as otherwise provided
herein) equal to any amount of the Base Salary that would otherwise be
payable for the Remainder Period but for Executive's termination plus
one year's Base Salary at the rate payable at the time of such
termination. Notwithstanding any provision in this paragraph (a) to
the contrary, Executive may, in Executive's sole discretion, by
delivery of a notice to the Company within thirty (30) days following
a Termination Upon a Change in Control, elect to receive from the
Company a lump sum severance payment by bank cashier's check equal to
the present value of the flow of cash payments that would otherwise be
paid to Executive pursuant to this paragraph (a). Such present value
shall be determined as of the date of delivery of the notice of
election by Executive and shall be based on a discount rate equal to
LIBOR plus 2.25%, as reported in the Wall Street Journal, or similar
publication, on the date of delivery of the election notice. If
Executive elects to receive a lump sum severance payment, the Company
shall make such payment to Executive within thirty (30) days following
the date on which Executive notifies the Company of Executive's
election.
1.7. Section 8(a)(ii) of the Employment Agreement shall be amended by deleting
such provision in its entirety and replacing with the following:
(ii) A bonus equal to 100% of his Base Salary, payable on the
date Executive's employment with the Company ceases as a result of a
Termination Upon Change of Control or Termination Other than For
Cause.
1.8. Section 8(a)(iii) of the Employment Agreement shall deleted in its
entirety.
1.9 The ADDENDUM TO EMPLOYMENT AGREEMENT appended to the Employment Agreement
is hereby deleted in its entirety.
II. DEFINED TERMS
Capitalized terms used in Section I hereof, but not defined therein, shall
have the same meaning ascribed to such terms in the Employment Agreement,
to the extent such terms are defined in the Employment Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Employment Agreement to be effective as of the Effective Date.
JDN REALTY CORPORATION
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: President and Chief Executive Officer
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