Texas | 1-9876 | 74-1464203 |
(State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification Number) |
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
WEINGARTEN REALTY INVESTORS | |||
By: | /s/ Joe D. Shafer | ||
Joe D. Shafer | |||
Senior Vice President/Chief Accounting Officer |
Exhibit Number | Title | |
99.1 *† | ||
99.2 *† | ||
* Filed with this report. | ||
† Management contract or compensation plan or arrangement. |
(a) | The Company shall provide Executive with a lump sum payment equal to 2.99 times (i) Executive’s annualized base salary rate as of the date of the first event constituting a Change in Control or, if higher, (ii) Executive’s highest base salary received for any year in the previous five fiscal years immediately preceding the first event constituting a Change in Control, plus 2.99 times Executive’s targeted bonus amount as accrued on the books of the Company for the fiscal year in which the first event constituting a Change in Control occurs. If Executive has been employed by the Company for less than five years, this Section 3(a) shall be deemed to mean such actual period of employment. |
(b) | The Company shall also provide Executive with a lump sum payment equal to the total cost of coverage for one year under the Company’s Welfare Benefit Plans for coverage equal to that which would have been provided to him/her in accordance with such plans if Executive’s employment had not been terminated. |
(c) | For purposes of determining benefit accruals due under the Company’s retirement income, supplemental executive retirement, and other benefit plans of the Company applicable to Executive, the Company shall credit Executive with an additional one year of service. To the extent additional service credit cannot be provided under any qualified plan, an equivalent supplemental benefit shall be provided under the supplemental executive retirement plan. |
(d) | There will be no right of set-off or counterclaim in respect of any claim, debt or obligation against any payment to or benefit for Executive provided for in this Agreement. |
(e) | Notwithstanding any other provision hereof, the parties’ respective rights and obligations under this Section 3 and under Sections 5 and 6 will survive any termination or expiration of this Agreement following a Change in Control. |
(a) | Notwithstanding anything in this Agreement to the contrary, in the event it is determined (as hereafter provided) that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including |
(b) | Subject to the provisions of Section 5(f), all determinations required to be made under this Section 5, including whether an Excise Tax is payable by Executive and the amount of such Excise Tax and whether a Gross-Up Payment is required to be paid by the Company to Executive and the amount of such Gross-Up Payment, if any, will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive in Executive’s sole discretion. Executive will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within 30 calendar days after Executive’s termination date, and any such other time or times as may be requested by the Company or Executive. If the Accounting Firm determines that any Excise Tax is payable by Executive, the Company will pay the required Gross-Up Payment to Executive within five business days after receipt of such determination and calculations with respect to any Payment to Executive. If the Accounting Firm determines that no Excise Tax is payable by Executive, it will, at the same time as it makes such determination, furnish the Company and Executive an opinion that Executive has substantial authority not to report any Excise Tax on Executive’s federal, state or local income or other tax return. As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts or fails to pursue its |
(c) | The Company and Executive will each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by Section 5(b). Any determination by the Accounting Firm as to the amount of the Gross-Up Payment will be binding upon the Company and Executive. |
(d) | The federal, state and local income or other tax returns filed by Executive will be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive will make proper payment of the amount of any Excise Payment and, at the request of the Company, provide to the Company true and correct copies (with any amendments) of Executive’s federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of Executive’s federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the Gross-Up Payment should be reduced, Executive will within five business days pay to the Company the amount of such reduction. |
(e) | The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Section 5(b) will be borne by the Company; provided that such fees and expenses are customary and reasonable and do not exceed the hourly rates then being charged by the accounting firm regularly retained by the Company. If such fees and expenses are initially paid by Executive, the Company will reimburse Executive the full amount of such fees and expenses within five business days after receipt from Executive of a statement therefor and reasonable evidence of Executive’s payment thereof. |
(f) | Executive will notify the Company in writing of any claim by the Internal Revenue Service or any other taxing authority that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification will be given as promptly as practicable but no later than 10 business days after Executive actually receives notice of such claim and Executive will further apprise the Company of the nature of such claim and the date on which such claim is requested to be paid (in each case, to the extent known by Executive). Executive will not pay such claim prior to the |
(A) | provide the Company with any written records or documents in Executive’s possession relating to such claim reasonably requested by the Company; |
(B) | take such action in connection with contesting such claim as the Company may reasonably request in writing from time to time, including without limitation accepting legal representation with respect to such claim by an attorney competent in respect of the subject matter and reasonably selected by the Company; |
(C) | cooperate with the Company in good faith in order effectively to contest such claim; and |
(D) | permit the Company to participate in any proceedings relating to such claims; provided, however, that the Company will bear and pay directly all costs and expenses (including interest and penalties) incurred in connection with such contest and will indemnify and hold harmless Executive, on an after-tax basis, for and against any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limiting the foregoing provisions of this Section 5(f), the Company will control all proceedings taken in connection with the contest of any claim contemplated by this Section 5(f) and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim (provided, however, that Executive may participate therein at Executive’s own cost and expense) and may, at its option, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and Executive will prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction, and in one or more appellate courts, as the Company may determine; provided, however, that if the Company directs Executive to pay the tax claimed and sue for a refund, the Company will pay an amount to Executive equal to the tax claimed and will indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income or other tax, including interest or penalties with respect thereto, imposed with respect to such payment; and provided further, however, that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which the contested amount is claimed to be due is limited solely to such contested amount. The Company’s control of any such contested claim will be limited to issues with respect to which a Gross-Up |
(g) | If, after the receipt by Executive of an amount paid by the Company pursuant to Section 5(f), Executive receives any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 5(f)) pay to the Company the amount of such refund (together with any interest paid or credited thereon after any taxes applicable thereto) within 30 calendar days after such receipt and the Company’s satisfaction of all accrued obligations under this Agreement. If, after the receipt by Executive of any amount paid by the Company pursuant to Section 5(f), a determination is made that Executive will not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such determination prior to the expiration of 30 calendar days after such determination, the amount of any such payment will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid by the Company to Executive pursuant to this Section 5. |
(a) | “Cause” means the occurrence of any of the following events: (i) any act by Executive of fraud or sexual harassment with respect to any aspect of the Company’s business; (ii) drug or alcohol abuse or behavior that impedes Executive’s job performance; (iii) failure by Executive to perform hereunder after notice of such failure (with a 30-day cure period) and explanation of such failure of performance, which is reasonably determined by the Board of Trust Managers to be materially injurious to the business or interests of the Company; (iv) misappropriation of funds or any corporate opportunity; or (v) conviction of Executive of a crime of moral turpitude (or a plea of nolo contendere thereto). |
(b) | “Change in Control” means the occurrence during the term of this Agreement of any of the following events: |
(i) | the Company is merged, consolidated, or reorganized into or with another corporation or other legal entity and the Company is not the “surviving entity;” |
(ii) | the Company sells or otherwise transfers 50% or more of its assets to another corporation or other legal entity in one transaction or a series of related transactions; |
(iii) | there is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report or item therein), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), disclosing that any person (as the term “person” is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term “beneficial owner” is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing over 25% of the combined voting power of the securities of the Company entitled to vote generally in the election of Company Managers (the “Voting Shares”) of the Company or could become the owner of over 25% of the Company’s common shares of beneficial interest through the conversion of the Company’s debt or equity securities; |
(iv) | the Company files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) that a change in control of the Company has occurred or will occur in the future pursuant to any then-existing contract or transaction; |
(v) | if, during any period of 12 months, individuals who at the beginning of any such period constitute the Trust Managers of the Company cease for any reason (other than death or disability) to constitute at least a majority thereof; |
(c) | “Good Reason” means any of the following conditions; provided, that, Executive gives notice to the Company of the existence of any of the following conditions within ninety (90) days of the initial existence of the condition, and the Company has a period of not less than thirty (30) days to remedy the condition. |
(i) | failure to elect or reelect or otherwise maintain Executive in the office or the position, or a substantially equivalent office or position, of or with the Company which Executive held immediately prior to a Change in Control, or the removal of Executive as a Trust Manager of the Company (or any successor thereto) if Executive had been a Trust Manager of the Company immediately prior to the Change in Control; |
(ii) | material diminution in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position with the Company which Executive held immediately prior to the Change in Control or a material reduction in the Executive’s base pay; |
(iii) | the determination by Executive (which determination will be conclusive and binding upon the parties hereto provided it has been made in good faith and in all events will be presumed to have been made in good faith unless otherwise shown by the Company by clear and convincing evidence) that a material negative change in circumstances has occurred following a Change in Control, including without limitation, a material negative change in the scope of the business or other activities for which Executive was responsible immediately prior to the Change in Control, which has rendered Executive substantially unable to carry out, has materially hindered Executive’s performance of, or has caused Executive to suffer a substantial material reduction in, any of the authorities, powers, functions, responsibilities, or duties attached to the position held by Executive immediately prior to the Change in Control; |
(iv) | the Company relocates its principal executive offices, or requires Executive to have Executive’s principal location of work changed, to any location which is in excess of 25 miles from the location thereof immediately prior to the Change in Control, or requires Executive to travel away from Executive’s office in the course of discharging Executive’s responsibilities or duties hereunder at least 20% more (in terms of aggregate days in any calendar year or in any calendar quarter when annualized for purposes of comparison to any prior year) than was required of Executive in any of the three full years immediately prior to the Change in Control without, in either case, Executive’s prior written consent; and/or |
(v) | without limiting the generality or effect of the foregoing, any material breach of this Agreement by the Company or any successor thereto, including, but not limited to, the failure of any successor to assume the obligations under this Agreement in accordance with Section 17 hereof. |
(d) | “Severance Period” means the period of time commencing on the date of an occurrence of each Change in Control and continuing until the expiration of one year after each occurrence of an event constituting a Change in Control; provided however, if Executive gives notice to the Company of circumstances constituting Good Reason less than 30 days prior to the end of the Severance Period, the Severance Period shall be extended and shall not expire until one day following the 30 day cure period provided for in Section 8(c) of this Agreement. |
(e) | “Welfare Benefit Plans” means the medical, dental, vision, life, and accidental death and dismemberment insurance benefits maintained by the Company and in which Executive was participating immediately prior to his/her separation from service. |
WEINGARTEN REALTY INVESTORS | ||
By: | /s/ Andrew Alexander | |
Title: | ||
Notice Address: | ||
2600 Citadel Plaza Drive | ||
Houston, Texas 77008 |
EXECUTIVE: | ||
/s/ Stephen C. Richter | ||
Notice Address: | ||
2600 Citadel Plaza Drive | ||
Houston, Texas 77008 |
(a) | The Company shall provide Executive with a lump sum payment equal to 2.99 times (i) Executive’s annualized base salary rate as of the date of the first event constituting a Change in Control or, if higher, (ii) Executive’s highest base salary received for any year in the previous five fiscal years immediately preceding the first event constituting a Change in Control, plus 2.99 times Executive’s targeted bonus amount as accrued on the books of the Company for the fiscal year in which the first event constituting a Change in Control occurs. If Executive has been employed by the Company for less than five years, this Section 3(a) shall be deemed to mean such actual period of employment. |
(b) | The Company shall also provide Executive with a lump sum payment equal to the total cost of coverage for one year under the Company’s Welfare Benefit Plans for coverage equal to that which would have been provided to him/her in accordance with such plans if Executive’s employment had not been terminated. |
(c) | For purposes of determining benefit accruals due under the Company’s retirement income, supplemental executive retirement, and other benefit plans of the Company applicable to Executive, the Company shall credit Executive with an additional one year of service. To the extent additional service credit cannot be provided under any qualified plan, an equivalent supplemental benefit shall be provided under the supplemental executive retirement plan. |
(d) | There will be no right of set-off or counterclaim in respect of any claim, debt or obligation against any payment to or benefit for Executive provided for in this Agreement. |
(e) | Notwithstanding any other provision hereof, the parties’ respective rights and obligations under this Section 3 and under Sections 5 and 6 will survive any termination or expiration of this Agreement following a Change in Control. |
(a) | Notwithstanding anything in this Agreement to the contrary, in the event it is determined (as hereafter provided) that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including |
(b) | Subject to the provisions of Section 5(f), all determinations required to be made under this Section 5, including whether an Excise Tax is payable by Executive and the amount of such Excise Tax and whether a Gross-Up Payment is required to be paid by the Company to Executive and the amount of such Gross-Up Payment, if any, will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive in Executive’s sole discretion. Executive will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within 30 calendar days after Executive’s termination date, and any such other time or times as may be requested by the Company or Executive. If the Accounting Firm determines that any Excise Tax is payable by Executive, the Company will pay the required Gross-Up Payment to Executive within five business days after receipt of such determination and calculations with respect to any Payment to Executive. If the Accounting Firm determines that no Excise Tax is payable by Executive, it will, at the same time as it makes such determination, furnish the Company and Executive an opinion that Executive has substantial authority not to report any Excise Tax on Executive’s federal, state or local income or other tax return. As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts or fails to pursue its |
(c) | The Company and Executive will each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by Section 5(b). Any determination by the Accounting Firm as to the amount of the Gross-Up Payment will be binding upon the Company and Executive. |
(d) | The federal, state and local income or other tax returns filed by Executive will be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive will make proper payment of the amount of any Excise Payment and, at the request of the Company, provide to the Company true and correct copies (with any amendments) of Executive’s federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of Executive’s federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the Gross-Up Payment should be reduced, Executive will within five business days pay to the Company the amount of such reduction. |
(e) | The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Section 5(b) will be borne by the Company; provided that such fees and expenses are customary and reasonable and do not exceed the hourly rates then being charged by the accounting firm regularly retained by the Company. If such fees and expenses are initially paid by Executive, the Company will reimburse Executive the full amount of such fees and expenses within five business days after receipt from Executive of a statement therefor and reasonable evidence of Executive’s payment thereof. |
(f) | Executive will notify the Company in writing of any claim by the Internal Revenue Service or any other taxing authority that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification will be given as promptly as practicable but no later than 10 business days after Executive actually receives notice of such claim and Executive will further apprise the Company of the nature of such claim and the date on which such claim is requested to be paid (in each case, to the extent known by Executive). Executive will not pay such claim prior to the |
(A) | provide the Company with any written records or documents in Executive’s possession relating to such claim reasonably requested by the Company; |
(B) | take such action in connection with contesting such claim as the Company may reasonably request in writing from time to time, including without limitation accepting legal representation with respect to such claim by an attorney competent in respect of the subject matter and reasonably selected by the Company; |
(C) | cooperate with the Company in good faith in order effectively to contest such claim; and |
(D) | permit the Company to participate in any proceedings relating to such claims; provided, however, that the Company will bear and pay directly all costs and expenses (including interest and penalties) incurred in connection with such contest and will indemnify and hold harmless Executive, on an after-tax basis, for and against any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limiting the foregoing provisions of this Section 5(f), the Company will control all proceedings taken in connection with the contest of any claim contemplated by this Section 5(f) and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim (provided, however, that Executive may participate therein at Executive’s own cost and expense) and may, at its option, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and Executive will prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction, and in one or more appellate courts, as the Company may determine; provided, however, that if the Company directs Executive to pay the tax claimed and sue for a refund, the Company will pay an amount to Executive equal to the tax claimed and will indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income or other tax, including interest or penalties with respect thereto, imposed with respect to such payment; and provided further, however, that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which the contested amount is claimed to be due is limited solely to such contested amount. The Company’s control of any such contested claim will be limited to issues with respect to which a Gross-Up |
(g) | If, after the receipt by Executive of an amount paid by the Company pursuant to Section 5(f), Executive receives any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 5(f)) pay to the Company the amount of such refund (together with any interest paid or credited thereon after any taxes applicable thereto) within 30 calendar days after such receipt and the Company’s satisfaction of all accrued obligations under this Agreement. If, after the receipt by Executive of any amount paid by the Company pursuant to Section 5(f), a determination is made that Executive will not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such determination prior to the expiration of 30 calendar days after such determination, the amount of any such payment will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid by the Company to Executive pursuant to this Section 5. |
(a) | “Cause” means the occurrence of any of the following events: (i) any act by Executive of fraud or sexual harassment with respect to any aspect of the Company’s business; (ii) drug or alcohol abuse or behavior that impedes Executive’s job performance; (iii) failure by Executive to perform hereunder after notice of such failure (with a 30-day cure period) and explanation of such failure of performance, which is reasonably determined by the Board of Trust Managers to be materially injurious to the business or interests of the Company; (iv) misappropriation of funds or any corporate opportunity; or (v) conviction of Executive of a crime of moral turpitude (or a plea of nolo contendere thereto). |
(b) | “Change in Control” means the occurrence during the term of this Agreement of any of the following events: |
(i) | the Company is merged, consolidated, or reorganized into or with another corporation or other legal entity and the Company is not the “surviving entity;” |
(ii) | the Company sells or otherwise transfers 50% or more of its assets to another corporation or other legal entity in one transaction or a series of related transactions; |
(iii) | there is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report or item therein), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), disclosing that any person (as the term “person” is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term “beneficial owner” is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing over 25% of the combined voting power of the securities of the Company entitled to vote generally in the election of Company Managers (the “Voting Shares”) of the Company or could become the owner of over 25% of the Company’s common shares of beneficial interest through the conversion of the Company’s debt or equity securities; |
(iv) | the Company files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) that a change in control of the Company has occurred or will occur in the future pursuant to any then-existing contract or transaction; |
(v) | if, during any period of 12 months, individuals who at the beginning of any such period constitute the Trust Managers of the Company cease for any reason (other than death or disability) to constitute at least a majority thereof; |
(c) | “Good Reason” means any of the following conditions; provided, that, Executive gives notice to the Company of the existence of any of the following conditions within ninety (90) days of the initial existence of the condition, and the Company has a period of not less than thirty (30) days to remedy the condition. |
(i) | failure to elect or reelect or otherwise maintain Executive in the office or the position, or a substantially equivalent office or position, of or with the Company which Executive held immediately prior to a Change in Control, or the removal of Executive as a Trust Manager of the Company (or any successor thereto) if Executive had been a Trust Manager of the Company immediately prior to the Change in Control; |
(ii) | material diminution in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position with the Company which Executive held immediately prior to the Change in Control or a material reduction in the Executive’s base pay; |
(iii) | the determination by Executive (which determination will be conclusive and binding upon the parties hereto provided it has been made in good faith and in all events will be presumed to have been made in good faith unless otherwise shown by the Company by clear and convincing evidence) that a material negative change in circumstances has occurred following a Change in Control, including without limitation, a material negative change in the scope of the business or other activities for which Executive was responsible immediately prior to the Change in Control, which has rendered Executive substantially unable to carry out, has materially hindered Executive’s performance of, or has caused Executive to suffer a substantial material reduction in, any of the authorities, powers, functions, responsibilities, or duties attached to the position held by Executive immediately prior to the Change in Control; |
(iv) | the Company relocates its principal executive offices, or requires Executive to have Executive’s principal location of work changed, to any location which is in excess of 25 miles from the location thereof immediately prior to the Change in Control, or requires Executive to travel away from Executive’s office in the course of discharging Executive’s responsibilities or duties hereunder at least 20% more (in terms of aggregate days in any calendar year or in any calendar quarter when annualized for purposes of comparison to any prior year) than was required of Executive in any of the three full years immediately prior to the Change in Control without, in either case, Executive’s prior written consent; and/or |
(v) | without limiting the generality or effect of the foregoing, any material breach of this Agreement by the Company or any successor thereto, including, but not limited to, the failure of any successor to assume the obligations under this Agreement in accordance with Section 17 hereof. |
(d) | “Severance Period” means the period of time commencing on the date of an occurrence of each Change in Control and continuing until the expiration of one year after each occurrence of an event constituting a Change in Control; provided however, if Executive gives notice to the Company of circumstances constituting Good Reason less than 30 days prior to the end of the Severance Period, the Severance Period shall be extended and shall not expire until one day following the 30 day cure period provided for in Section 8(c) of this Agreement. |
(e) | “Welfare Benefit Plans” means the medical, dental, vision, life, and accidental death and dismemberment insurance benefits maintained by the Company and in which Executive was participating immediately prior to his/her separation from service. |
WEINGARTEN REALTY INVESTORS | ||
By: | /s/ Andrew Alexander | |
Title: | ||
Notice Address: | ||
2600 Citadel Plaza Drive | ||
Houston, Texas 77008 |
EXECUTIVE: | ||
/s/ Johnny Hendrix | ||
Notice Address: | ||
2600 Citadel Plaza Drive | ||
Houston, Texas 77008 |