Exhibit 10.1
SEVERANCE AND CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT, effective as of _______________, 202___ is by and between REGENCY CENTERS CORPORATION, a Florida corporation (the “Company”), Regency Centers, L.P., a Delaware limited partnership (the “Partnership”), and _________________ (the “Employee”).
WHEREAS, to induce the Employee to serve (or continue to serve) as an officer of the Company and a key employee of the Partnership, the Company, the Partnership, and the Employee desire to enter into this Severance and Change Of Control Agreement (the “Agreement”); and
WHEREAS, the parties agree that the restrictive covenants underlying certain of the Employee’s obligations under this Agreement are necessary to protect the goodwill or other business interests of the Regency Entities (as defined herein) and that such restrictive covenants do not impose a greater restraint than is necessary to protect such goodwill or other business interests.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, including the Employee’s agreement to serve (or continue to serve) as an officer of the Company and as an employee of the Partnership, and the restrictive covenants contained herein, the Employee, the Company, and the Partnership agree as follows:
Notwithstanding the foregoing, during the Change of Control Period, the definition of Cause shall be limited to the events described in subsection (i), (ii) and (v) above.
For purposes of this definition, the Employee’s actions or failure to act shall not be considered “willful” unless it is done, or omitted to be done, by Employee in bad faith or without reasonable belief that Employee’s action or omission was in the best interests of the Company and the Partnership. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or , if applicable, upon the instructions of the Chief Executive Officer of the Company or another senior officer of the Company or based upon the advice of counsel for the Company or the Partnership shall be conclusively presumed to be done, or omitted to be done, by the Employee in good faith and in the best interests of the Company and the Partnership.
If the act or omission of the Employee could be considered “Cause” under more than one provision above, then the Company shall have the discretion to determine which provision(s) applies in such circumstance.
If matters constituting Cause within the meaning of subsection (i), (ii) or (v) become known to the Company or the Partnership subsequent to the time that the Employee’s termination occurs, then the Board may, by delivery of written notice to the Employee, treat such termination as being for Cause, cease and terminate any severance payments or benefits then remaining, and seek reimbursement of all payments made and benefits provided, with interest, hereunder or under any other agreement in connection with such termination by any available legal means; provided, however, that if such matters become known during the Change of Control Period, then the procedures described in the following paragraph must be followed prior to the Board’s issuance of the notice.
During the Change of Control Period, the Employee’s termination of employment shall not be deemed to be for Cause unless and until there shall have been delivered to the Employee a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the entire membership of the Board (excluding the Employee if the Employee is a member of the Board) at a meeting of the Board called and held for such purpose (after reasonable notice is provided to the Employee and the Employee is given an opportunity, together with counsel for the Employee, to be heard before the Board), finding that, in the good faith opinion of the Board, the Employee is guilty of the conduct described in subsection (i), (ii) or (v) above, and specifying the particulars of its determination thereof in detail. No formal action with respect to the Employee’s employment status may be taken by the Company pending the foregoing actions by the Board, except that the Company may place the Employee on paid administrative leave beginning on the date the Company notifies the Employee of the date of the Board meeting through the
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date of the Board’s final decision on the matter, and doing so shall not be considered Good Reason nor a termination without Cause.
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Notwithstanding any other provision of this Agreement, with respect to any payments or benefits that constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code, a Change of Control shall not constitute a payment or settlement event with respect to such payments or benefits, or an event that otherwise changes the timing of payment or settlement of such payments or benefits, unless the Change of Control also constitutes an event described in Section 409A(a)(2)(v) of the Code and the regulations thereto. For the avoidance of doubt, this paragraph shall have no bearing on the Employee’s entitlement to receive any such payments or benefits under this Agreement that are otherwise payable but for Section 409A of the Code.
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The Employee’s mental or physical incapacity following the occurrence of an event described above in subsections (i) through (v) hereof shall not affect the Employee’s ability to terminate employment for Good Reason and the Employee’s death following delivery of a notice of termination for Good Reason shall not affect the Employee’s estate’s entitlement to severance payments benefits provided hereunder upon a termination of employment for Good Reason.
To invoke a termination for Good Reason, whether before or after a Change of Control, the Employee shall provide a Termination Notice to the Company within 90 days following the Employee’s knowledge of the initial existence of one or more of the conditions described in subsections (i) through (v) giving rise to Good Reason, and the Company and the Partnership shall have 30 days following receipt of such written notice (the “Cure Period”) during which it may remedy the asserted condition or conditions. If the Company or the Partnership, as applicable, does not cure the asserted condition within the Cure Period, then the Employee’s Termination Date will occur on the day immediately following the end of the Cure Period. If the Company or the Partnership, as
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applicable, cures the asserted condition or conditions within such thirty (30) day Cure Period, then the Employee will be deemed to have withdrawn the notice of termination effective as of the date the cure is affected.
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(Signature page to follow)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
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REGENCY CENTERS CORPORATION | ||
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By: |
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| Lisa Palmer |
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| Its President & Chief Executive Officer |
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REGENCY CENTERS, L.P. | ||
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By: |
| REGENCY CENTERS CORPORATION |
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| Its General Partner |
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By: |
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| Lisa Palmer |
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| Its President & Chief Executive Officer |
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EMPLOYEE
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| [insert employee name] | |
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