Exhibit 10.1


 


AMENDED
AND RESTATED

RESTRICTED STOCK UNIT AGREEMENT


 


This AMENDED AND RESTATED RESTRICTED STOCK
UNIT AGREEMENT (the “Agreement”) is effective as of September 9, 2004 (the
“Effective Date”) but executed January 14, 2005, by and between The Mills
Corporation, a Delaware corporation (the “Company”) and Mark Ettenger (the “Executive”).


 


W I T N E S S E T H


 


WHEREAS, the Company and Executive previously
executed that certain Restricted Stock Unit Agreement as of September 9,
2004 (the “Original Agreement”), which agreement was entered into to fulfill
the requirement of an inducement grant in the form of restricted stock units to
Executive as required under Section 4.4 of the Employment Agreement
between the Company and Executive entered into as of February 2, 2004 (the
“Employment Agreement”); and


 


WHEREAS, the parties wish to amend and
restate the Original Agreement to remedy certain administrative errors
contained in the Original Agreement.


 


NOW THEREFORE, in consideration of the
foregoing, of the mutual promises contained herein and in the Employment
Agreement and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:


 


ARTICLE I


 


RESTRICTED
STOCK UNITS


 


Section 1.1.                                   Definitions.  Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Employment Agreement.


 


Section 1.2.                                   Grant.  The Company hereby grants to Executive as of
the date hereof (the “Grant Date”) 110,000 Restricted Stock Units (the “Award”).  For purposes of this Agreement, each “Restricted
Stock Unit” shall represent an unfunded and unsecured promise of the Company to
deliver to Executive one share of common stock of the Company, par value $0.01
per share (“Common Share”) on the Settlement Date (as defined herein) subject
to the terms and conditions of this Agreement. 
For purposes of this Agreement, the term “Settlement Date” shall mean,
with respect to any Restricted Stock Unit granted hereunder, the vesting date
for such Restricted Stock Unit (as provided below); provided, however, in the
case of any Restricted Stock Unit that has been deposited in the Trust (as
defined in the Employment Agreement) pursuant to a timely election made by
Executive under Section 4.6 of the Employment Agreement, the term “Settlement
Date” shall mean the later of the vesting date for such Restricted Stock Unit
(as provided below) and the date on which Common Shares issued upon settlement


 





















 


of such Restricted Stock Units are required to be distributed from the
Trust provided for under Section 4.6 of the Employment Agreement.


 


Section 1.3.                                   Vesting.  Fifty percent (50%) of the Restricted Stock
Units comprising the Award (the “First RSU Installment”) shall vest on January 1,
2005 provided that Executive is then employed by the Company.  If Executive’s employment with the Company
terminates for any reason and the Effective Date of Termination is on or prior
to December 31, 2004, the first RSU Installment shall be forfeited by Executive
and Executive shall have no rights thereunder. 
The remaining fifty percent (50%) of the Restricted Stock Units comprising
the Award (the “Second RSU Installment”) shall vest upon the earlier of (a) January 1,
2006, provided that Executive is then employed by the Company, and (b) the
termination of Executive’s employment for any reason other than termination by
the Company for Cause or termination by Executive without Good Reason.  If Executive’s employment with the Company is
terminated by the Company for Cause or Executive terminates his employment with
the Company without Good Reason and the Effective Date of Termination is on or
prior to December 31, 2005, the Second RSU Installment shall be forfeited by
Executive and Executive shall have no rights thereunder.


 


ARTICLE II


 


RIGHTS AND
SETTLEMENT


 


Section 2.1.                                   Rights
as a Shareholder.  The Restricted
Stock Units granted hereunder will not give Executive any rights or privileges
as a stockholder, including without limitation, the right to vote on any matter
submitted to the Company’s stockholders. 
Executive will have voting rights with respect to the Common Shares that
underlie the Restricted Stock Units granted hereunder only after the shares
have actually been issued to Executive.


 


Section 2.2.                                   Restrictions
on Transferability.  Executive shall not
have any right to sell, assign, transfer, pledge, hypothecate or otherwise
encumber the Restricted Stock Units granted hereunder. Any attempt to effect
any such sale, assignment, transfer, pledge, hypothecation or encumbrance,
whether voluntary or involuntary, shall be void and of no force or effect.


 


Section 2.3.                                   Dividend
Equivalents.  In addition to any
issuance of Common Shares due upon settlement of any Restricted Stock Unit granted
hereunder, on each date during the period commencing on the Grant Date and
ending on the Settlement Date of such Restricted Stock Unit upon which any
dividends declared on Common Shares are paid to stockholders of the Company,
Executive shall be paid an amount in cash (in the case of a cash dividend
declared and paid by the Company) or distributed a number of Common Shares (in
the case of a stock dividend declared and paid by the Company), in each case
equal to the aggregate dividends that would have been paid on the Common Shares
issuable upon settlement of such Restricted Stock Unit if such Restricted Stock
Unit had been settled in Common Shares immediately prior to the date on which
any such


 


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dividend was declared (“Dividend Equivalents”); provided, however, that
Executive may elect to defer the receipt of any such cash payment by electing
such deferral in a timely manner pursuant to Section 4.6 of the Employment
Agreement.


 


Section 2.4.                                   Settling
Restricted Stock Units.  On each Settlement
Date, the Company will deliver to Executive the number of Common Shares
underlying the vested Restricted Stock Units being settled.


 


Section 2.5.                                   Adjustments.  In the event of any change in the outstanding
common shares of the Company as a result of any stock split, reverse stock
split, recapitalization, reorganization, merger or consolidation (each an “Adjustment
Event”) between the Grant Date and Settlement Date of any Restricted Stock Unit,
the number of Common Shares underlying such Restricted Stock Unit will be
proportionately adjusted to reflect, as deemed equitable and appropriate by the
Company, the Adjustment Event.


 


ARTICLE III


 


ADMINISTRATION


 


Section 3.1.                                   Administration.  Except
to the extent otherwise specifically provided herein, this Award shall be
administered by the Executive Compensation Committee of the Board of Directors
of the Company in its sole discretion.


 


ARTICLE IV


 


MISCELLANEOUS


 


Section 4.1.                                   Tax
Withholding.  As a condition to the
Company’s obligation to pay any Dividend Equivalents or issue any Common Shares
upon settlement of a Restricted Stock Unit granted hereunder, the Company will
have the power to withhold, or require the Executive to remit to the Company
promptly upon notification of the amount due, an amount sufficient to satisfy
Federal, state and local withholding tax requirements with respect to such
Restricted Stock Unit (or settlement thereof), and the Company may defer the issuance
or delivery of Common Shares or the payment of Dividend Equivalents until such
requirements are satisfied.  Executive may,
subject to satisfying such conditions as the Company shall impose, elect (a) to
have Common Shares deliverable in respect of the Restricted Stock Units granted
hereunder withheld by the Company or (b) to deliver to the Company
previously acquired Common Shares, in each case, having a fair market value
sufficient to satisfy Executive’s statutory minimum Federal, state and local
tax obligation associated with such Restricted Stock Units (or settlement
thereof).


 


Section 4.2.                                   Source
of Common Shares.  The Common Shares
to be delivered upon settlement of any Restricted Stock Units granted hereunder
may consist, in whole or in part, of Common Shares held in treasury by the
Company or authorized but unissued Common Shares, not reserved for any other
purpose.


 


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Section 4.3.                                   Requirements
of Law.  Notwithstanding any other
provision of this Agreement or the Employment Agreement, the granting of Restricted
Stock Units hereunder and the issuance of Common Shares upon settlement thereof
will be made only after, and on the conditions that (a) there has been
compliance with all applicable federal, state and local laws, rules and
regulations, and (b) that all necessary approvals by any governmental
agencies or national securities exchanges have been obtained.


 


Section 4.4.                                   No
Impact on Benefits.  The Award shall not
be considered compensation for purposes of calculating Executive’s rights under
any employee benefit plan.


 


Section 4.5.                                   SEC
Registration.  If the Award is not
made pursuant to a plan covered by a registration statement declared effective
by the Securities and Exchange Commission (the “SEC”), the Company agrees to
file with the SEC, prior to or as soon as practicable after the first
Settlement Date of any Restricted Stock Unit granted hereunder, a Form S-8
registration statement covering the Common Shares issuable upon settlement of
the Restricted Stock Units granted hereunder.


 


Section 4.6.                                   Governing
Law.  To the extent not preempted by
Federal law, the validity and effect of this Agreement and the rights and
obligations of the parties hereto shall be construed in accordance with the
internal substantive laws of the State of Delaware without giving effect to the
conflict of laws principles thereof.


 


Section 4.7.                                   Entire
Agreement.  This Agreement and the
Employment Agreement constitute the entire understanding of the parties hereto
with respect to the Award and supersede all prior agreements, arrangements,
understandings and communications between the parties hereto with respect to
the subject matter hereof, whether oral or written, including without limitation,
the Term Sheet.


 


Section 4.8.                                   Amendment
and Waiver.  No amendment or
modification of this Agreement shall be valid or binding upon (a) the
Company unless made in writing and signed by a duly authorized officer of the
Company or (b) Executive unless made in writing and signed by him.


 


Section 4.9.                                   Non-Waiver
of Breach.  No
failure by either party to declare a default due to any breach of any
obligation under this Agreement by the other, nor failure by either party to
act quickly with regard thereto, shall be considered to be a waiver of any such
obligation, or of any future breach.


 


Section 4.10.                             Severability.  If any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect.


 


Section 4.11.                             Headings.  Titles to paragraphs and sections hereof are
for information purposes only and, where inconsistent with the text, are to be
disregarded.


 


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Section 4.12.  Counterparts.  This agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
when taken together, shall be and constitute one and the same instrument.


 


IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first written above.


 


	
   

  	
  THE MILLS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Laurence Siegel

  
	
   

  	
  Its:

  	
   Chairman and CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
    /s/ Mark D. Ettenger

  



 


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