AMENDMENT NO. 1 TO
SEVERANCE AND CHANGE IN CONTROL
AGREEMENT
This Amendment
No. 1 (“Amendment”) to Severance and Change in Control
Agreement (“Agreement”) is entered into by and between
Weingarten Realty Investors, a Texas real estate investment company
(the “Company”) and Johnny Hendrix
(“Executive”). Unless defined in this Amendment, all
initial capitalized terms shall have the meanings set forth in the
Agreement.
Whereas,
Company and Executive entered into the Agreement, dated as of
December 20, 2008 ; and
Whereas,
Company and Executive desire to amend the Agreement, effective as
of January 1, 2008, to comply with Section 409A of the Code and to
effect certain other changes as set forth herein:
Now, therefore,
Company and Executive hereby agree as follows, effective January 1,
2008:
1. Section
2 of the Agreement is hereby amended to be and read as
follows:
2.
Termination Following a Change in Control
. The Company shall pay the Severance Benefit to
Executive if, during the Severance Period, (i) Executive's
employment with the Company is terminated by the Company other than
for Cause; (ii) Executive’s employment is terminated due to
permanent disability or death; (iii) Executive terminates his
employment with the Company (which he shall be entitled to do) due
to the:
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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;
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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;
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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
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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;
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the
liquidation, dissolution, merger, consolidation or reorganization
of the Company or transfer of all or substantially all of its
business and/or assets, unless the successor or successors (by
liquidation, merger, consolidation, reorganization, transfer or
otherwise) to which all or substantially all of the Company's
business and/or assets have been transferred (directly or by
operation of law) assumes all duties and obligations of the Company
under this Agreement, so that it is reasonably likely that there
will be no material breach of the Agreement by the Company or its
successor-in-interest;
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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
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without
limiting the generality or effect of the foregoing, any material
breach of this Agreement by the Company or any successor
thereto.
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The Executive
must give notice to the Company of the existence of any of the
foregoing conditions within ninety (90) days of the initial
existence of the condition, and the Company shall have a period of
not less than thirty (30) days to remedy the condition.
Any Severance
Benefit due under this Section 2 shall be due and payable within
five business days after the occurrence of the event giving rise to
the Company's obligation to pay the Severance Benefit.
2. Section
3(a) of the Agreement is hereby amended, as underlined, to be and
read as follows:
(a) In
addition to the Severance Benefit, during the Severance Period, the
Company will arrange to provide Executive with Employee Benefits
that are welfare benefits (including, but not limited to,
medical/dental program, life insurance, etc. but not
share options,
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