EXHIBIT 10.37
MASTER
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered
into on this 22nd day of March, 2002, by and between XXXX X. XXXXXX, an
individual resident of the State of Georgia ("Executive"), POST PROPERTIES,
INC., a Georgia corporation ("Post"), POST GP Holdings, Inc., a Georgia
corporation, as the general partner of POST APARTMENT HOMES, L.P., ("Holdings")
and Post Services, Inc., a Georgia corporation ("Services");
W I T N E S S E T H:
WHEREAS, Post, Holdings and Services desire to employ Executive, and
Executive desires to be employed by Post, Holdings and Services on the terms and
conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Post, Holdings,
Services and Executive, intending to be legally bound, do hereby agree as
follows:
Section 1
Employment
Subject to the terms of this Agreement, Post, Holdings and Services
hereby employ Executive effective as of January 1, 2002, and Executive hereby
accepts such employment with Post, Holdings and Services. Executive shall serve
as the Vice Chairman of the Boards of Directors of Post, Holdings and Services
and in such capacities shall have, and shall discharge, such duties and
responsibilities as shall be assigned to him from time to time by the Boards of
Directors of Post, Holdings, and Services, but all such duties and
responsibilities shall be no more than part-time and consultative in nature and
none of such duties and responsibilities shall require Executive to maintain a
regular work schedule or shall involve day-to-day operating duties or
responsibilities. Executive shall report to the Board of Directors of Post with
respect to his duties and responsibilities as Vice Chairman of the Board of
Post, to the Board of Directors of Holdings with respect to his duties and
responsibilities as Vice Chairman of the Board of Holdings and to the Board of
Directors of Services with respect to his duties and responsibilities as Vice
Chairman of the Board of Services. Subject to the other terms and conditions of
this Agreement, Executive, Post, Holdings
and Services agree that Executive's compensation, accountabilities, and
requirements shall be determined by Post's Board of Directors or its
Compensation Committee (the "Committee"), in their sole discretion but after
discussion with Executive, Holdings and Services. Executive shall discharge his
duties and responsibilities as set in accordance with this Section 1 in good
faith and with such care as is customarily required by an individual undertaking
similar duties for entities similar to Post, Holdings and Services. Finally,
Executive shall have the discretion to decide at any time whether he is
performing his duties or exercising his responsibilities for Post, for Holdings
or for Services.
Section 2
Compensation; Expenses
2.1. Base Salary. Executive shall be paid during the Term of this
Agreement (as described in Section 3.1), a minimum base salary equal to $100,000
per annum (his "Base Salary"), which amount shall be subject to upward
adjustment, if any, in accordance with this Section 2.1. The Committee shall
review Executive's Base Salary on a regular basis and shall make such upward
adjustment as the Committee deems appropriate to ensure that his Base Salary
remains competitive. Executive's Base Salary, less all applicable withholding
taxes, shall be paid to Executive in accordance with the payroll procedures in
effect with respect to executive officers of Post but shall be apportioned
between and actually be paid on Post's payroll, Holding's payroll (or, at its
option, the payroll of Post Apartment Homes, LP ("Post LP")) and Services'
payroll as agreed upon from time to time by Post, Holdings and Services.
2.2. Stock Options. Executive shall be eligible to receive such
grants of options to purchase Post stock or grants of restricted Post stock as
the Committee determines in its discretion to grant to Executive from time to
time.
2.3. Expenses. Executive shall be reimbursed for all reasonable
business-related expenses incurred by Executive at the request of or on behalf
of Post, Holdings or Services, including, without limitation, first class travel
and entertainment expenses incurred in connection with the performance of
Executive's duties and responsibilities, moving expenses and his cellular and
other expenses to maintain a complete, real time communications link with Post,
Holdings and Services while he is away from his office.
2.4. Participation in Employee Benefit Plans.
(a) General. Executive shall be entitled to participate in such
medical, dental, disability, hospitalization, life insurance, profit
sharing and other employee benefit plans as maintained from time to time
for the benefit of executive officers of Post, Holdings and Services, on
the terms and subject to the conditions set forth in such plans. However,
if Post, Holdings and Services each maintain the same plan, the benefits
available under such plan shall not exceed the benefit
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which would have been available if Post, Holdings and Services were one
and the same company.
(b) Life Insurance. Post, Holdings and Services collectively will
provide Executive with a split dollar life insurance program up to
$15,000,000 on terms and conditions to be agreed upon by Post and
Executive.
(c) Annual Physical. Post, Holdings and Services will reimburse
Executive for a comprehensive physical examination on an annual basis.
Post, Holdings and Services require that Executive have such an
examination at least every other year.
2.5. Miscellaneous Perquisites.
(a) Luncheon/Athletic Club. Post, Holdings and Services collectively
shall reimburse Executive for monthly dues for one luncheon or athletic
club.
(b) Luxury Car. Post, Holdings and Services collectively shall
reimburse Executive for the rental and operation of a luxury automobile,
including lease payments, insurance, maintenance, ad valorem and use
taxes, and operating expenses.
(c) Office. Post, Holdings and Services collectively shall provide
Executive with an office at 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx, and all related equipment and services, including secretarial,
bookkeeping and other support services, and operate and maintain such
office during such hours (including hours on weekends and holidays) as
Executive shall request, commensurate in all respects with the office,
equipment and services provided to Executive on the date of this Agreement
and, further, shall continue to provide and maintain commensurate mobile
and home office equipment to and for Executive, including computers,
telephones, home security systems, and related ancillary equipment such as
printers, modems, fax machines, and pagers to enable Executive to perform
his duties and responsibilities remotely and otherwise from his primary
residence and each other residence owned and used as a secondary residence
by Executive.
(d) Personal Financial Counseling. Post, Holdings and Services
collectively shall reimburse Executive for all reasonable costs associated
with retaining a personal financial counselor, up to an annual amount of
$50,000, to provide such advice and services, including tax advice and tax
return preparation services, to and on behalf of Executive as customarily
provided by personal financial counselors.
(e) Company Airplane. Post, Holdings and Services shall make
available to Executive each calendar year for his business and personal
use a Citation VII for 50 hours, a Falcon 2000 for 25 hours and a King Air
B200 for 25
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hours or shall make such aircraft available for such other number of hours
or shall make such other types of aircraft available for such other number
of hours as agreed upon from time to time by Post and Executive; provided,
however, no hours used by Executive before February 1, 2002 shall count
against Executive's use limits for 2002. Any personal use of an aircraft
pursuant to this Section 2.5(e) shall be subject to the applicable tax
rules for personal use.
(f) Household Help. Post, Holdings and Services shall continue to
make available employees to perform household and other services at
Executive's residence on the same basis as employees are made available on
the date of this Agreement subject to Executive continuing to reimburse
Post, Holdings and Services for such services in accordance with the
reimbursement procedures in effect on the date of this Agreement.
(g) Legal Fees. Post, Holdings and Services shall pay Executive's
reasonable legal fees and expenses which he incurs in connection with the
negotiation of this Agreement.
(h) Rule 10b5-1 Plan. Post consistent with Post's xxxxxxx xxxxxxx
policies shall take such action as necessary or appropriate to assist
Executive if Executive seeks to implement a "plan" under Rule 10b5-1 of
the Securities Exchange Act of 1934, as amended, to sell Post common stock
or other securities issued by Post.
(i) Health Benefits. Post shall make available to Executive after
his termination of employment (for any reason) for his lifetime and, if he
has a spouse at his death, to her for her lifetime, coverage under the
group health plan in which Posts' senior executives continue to
participate or, if such coverage can not reasonably be effected under the
terms of such plan, shall reimburse Executive and such surviving spouse
for their medical expenses to the same extent such expenses would have
been reimbursed under the terms of such plan, all subject to the condition
that (1) Executive pays Post for such coverage on the same basis as a
former employee pays for such coverage and his surviving spouse, if any,
pays for such coverage on the same basis that the surviving spouse of a
former employees pays for such coverage and (2) Executive's employment not
be terminated "For Cause" under Section 3.3(e).
(j) East Lake Golf Club. Executive shall be Post's designated member
at the East Lake Golf Club.
2.6. Allocation. Post, Holdings and Services shall allocate the
payments and benefits called for under this Agreement between themselves as
Post, Holdings and Services deem reasonable and appropriate and, further, may
(as between themselves) designate one company to make all such payments (except
with respect to Base Salary under Section 2.1) and provide all such benefits to
Executive. However, Executive may (except with respect to Base Salary under
Section 2.1) look to either Post,
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Holdings or Services for 100% of the payments and benefits called for under this
Agreement if at any time there is any failure by Post, Holdings or Services to
make any payment or provide any benefit called for under this Agreement.
Section 3.
Term of Employment
3.1. Term of Employment. Unless earlier terminated in accordance
with Section 3.3 of this Agreement, the employment of Executive under this
Agreement shall commence as of January 1, 2002 and shall continue until May 30,
2016 (the "Term").
3.2. Termination of Prior Employment Agreement. Executive's
Employment Agreement with Post, Holdings and Services entered into on June
1,1998 and as thereafter amended will terminate as of January 1, 2002, but
Executive's Noncompetition Agreement with Post, Holdings and Services, entered
into as of July 22, 1993, shall not be affected by this Agreement and shall
continue in full force and effect. Such Noncompetition Agreement and any
successor to such agreement shall be referred to in this Agreement as the
"Noncompetition Agreement."
3.3. Termination. Executive's employment under this Agreement may be
terminated as follows:
(a) by Executive at any time if
(i) Executive is relieved of his title as Vice Chairman of the
Board of Directors of Post, Holdings or Services without his
consent,
(ii) Executive is assigned duties or responsibilities which
are outside the scope of the duties and responsibilities described
in Section 1 without his consent,
(iii) there is a material decrease in the value of Executive's
compensation and benefits package without his consent, or
(iv) Post, Holdings, Services or Post LP accelerates the date
for repayment of any indebtedness owed by Executive to Post,
Holdings, Services or Post LP without Executive's consent,
in which event his benefits under this Agreement shall be determined
under Section 4.1;
(b) by Executive for any reason during the one (1) year period which
starts on the Effective Date of a Change in Control, where
(i) the term "Change in Control" shall mean
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(1) a "change in control" of Post of a nature that would
be required to be reported in response to Item 6(e) of
Schedule 14A for a proxy statement filed under Section 14(a)
of the Securities Exchange Act of 1934, as amended, or
"Exchange Act," as in effect on the date of this Agreement,
(2) a "person" (as that term is used in 14(d)(2) of the
Exchange Act) becomes the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) directly or indirectly of
securities representing 45% or more of the combined voting
power for election of directors of the then outstanding
securities of Post,
(3) the individuals who at the beginning of any period
of two consecutive years or less (starting on or after the
date of this Agreement) constitute Post's Board of Directors
cease for any reason during such period to constitute at least
a majority of Post's Board of Directors, unless the election
or nomination for election of each new member of Post's Board
of Directors was approved by vote of at least two-thirds of
the members of such Board of Directors then still in office
who were members of such Board of Directors at the beginning
of such period,
(4) the shareholders of Post approve any reorganization,
merger, consolidation or share exchange as a result of which
the common stock of Post shall be changed, converted or
exchanged into or for securities of another organization
(other than a merger with a Post affiliate or a wholly-owned
subsidiary of Post) or any dissolution or liquidation of Post
or any sale or the disposition of 50% or more of the assets or
business of Post, or
(5) the shareholders of Post approve any reorganization,
merger, consolidation or share exchange with another
corporation unless (A) the persons who were the beneficial
owners of the outstanding shares of the common stock of Post
immediately before the consummation of such transaction
beneficially own more than 60% of the outstanding shares of
the common stock of the successor or survivor corporation in
such transaction immediately following the consummation of
such transaction and (B) the number of shares of the common
stock of such successor or survivor corporation beneficially
owned by the persons described in Section 3.3(b)(i)(5)(A)
immediately following the consummation of such transaction is
beneficially owned by each such person in substantially the
same proportion that each such person had beneficially owned
shares of Post common stock immediately before the
consummation of such transaction, provided (C) the
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percentage described in Section 3.3(b)(i)(5)(A) of the
beneficially owned shares of the successor or survivor
corporation and the number described in Section
3.3(b)(i)(5)(B) of the beneficially owned shares of the
successor or survivor corporation shall be determined
exclusively by reference to the shares of the successor or
survivor corporation which result from the beneficial
ownership of shares of common stock of Post by the persons
described in Section 3.3(b)(i)(5)(A) immediately before the
consummation of such transaction, and
(ii) the term "Effective Date" shall mean the date which
includes the "closing" of the transaction which makes a Change in
Control effective if the Change in Control is made effective through
a transaction which has a "closing" or the date a Change in Control
is reported in accordance with applicable law as effective to the
Securities and Exchange Commission if the Change in Control is made
effective other than through a transaction which has a "closing",
in which event his benefits under this Agreement shall be determined
under Section 4.1;
(c) by Post (other than under Section 3.3(e)), in which event his
benefits under this Agreement shall be determined under Section 4.1;
(d) by Executive's death, in which event his benefits under this
Agreement shall be determined under Section 4.2; or
(e) by Post "For Cause" if
(i) Executive is convicted of, pleads guilty to, or confesses
to any felony or any act of fraud, misappropriation or embezzlement
which has an immediate and materially adverse effect on Post,
Holdings, Services, Post LP or any of their direct or indirect
subsidiaries, as determined by Post's Board of Directors in good
faith,
(ii) Executive engages in a fraudulent act to the material
damage or prejudice of Post, Holdings, Services, Post LP or any of
their direct or indirect subsidiaries or in conduct or activities
materially damaging to the property, business or reputation of Post,
Holdings, Services, Post LP, or any of their direct or indirect
subsidiaries, all as determined by Post's Board of Directors in good
faith,
(iii) there is any material act or omission by Executive
involving malfeasance or negligence in the performance of
Executive's duties to Post, Holdings or Services to the material
detriment of Post, Holdings, Services or Post LP, as determined by
Post's Board of Directors in good
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faith, which has not been corrected by Executive within thirty (30)
days after written notice from Post of any such act or omission,
(iv) Executive fails to comply in any material respect with
the terms of this Agreement or any other written agreement with
Post, Holdings, Services, Post LP or any of their direct or indirect
subsidiaries or any written policies or directives of Post's Board
of Directors as determined by Post's Board of Directors in good
faith, which has not been corrected by Executive within thirty (30)
days after written notice from Post of such failure, or
(v) Executive breaches any of the covenants set forth in the
Noncompetition Agreement,
in which event Executive's benefits under this Agreement shall be
determined under Section 4.3.
Section 4
Result of Termination
4.1. General Rule. If Executive's employment under this Agreement is
terminated under Section 3.3(a), Section 3.3(b) or Section 3.3(c), then
(a) Executive shall be entitled to continue to receive his then Base
Salary until the end of the Term (as determined without regard to his
termination of employment) or until he dies, whichever comes first;
(b) Executive's unvested stock options, if any, shall fully vest and
the restrictions on his restricted stock grants, if any, shall lapse on
the effective date of such termination;
(c) Executive shall be entitled to continue to receive all the
perquisites, benefits, services and equipment described in Section 2.4 and
Section 2.5 of this Agreement until the end of the Term (as determined
without regard to his termination of employment) or until he dies,
whichever comes first, or subject to Executive's consent, the cash
equivalent of such perquisites, benefits, services and equipment, such
cash equivalent to be agreed upon by Post and Executive as a condition to
such consent; provided, if Executive dies after his employment terminates
but before the end of the Term (as determined without regard to such
termination of employment), suitable office space at 0000 Xxxxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxx and related equipment and services, including
secretarial, bookkeeping and other support services, shall be made
available at no expense for the benefit of his estate for no less than the
six (6) month period which starts on the date of his death;
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(d) Executive shall receive all the perquisites and benefits to
which he has a right to receive independent of this Agreement under the
terms and conditions of the plans and programs under which such
perquisites and benefits were granted to Executive; and
(e) the group health plan coverage described in Section 2.5(i) shall
remain available in accordance with the terms of Section 2.5(i).
4.2. Termination as a Result of Death. If Executive's employment
under this Agreement is terminated as a result of his death, then,
(a) Executive (or at his death, his designated beneficiary, if any,
or if none, his surviving spouse or, if none, his estate) shall be
entitled to receive (i) any Base Salary which may be owed to Executive but
which is unpaid as of the effective date of such termination and (ii) a
severance payment equal to his Base Salary for such calendar year;
(b) Executive's unvested stock options shall fully vest on the
effective date of such termination;
(c) all Executive's perquisites and benefits called for exclusively
under the terms of this Agreement shall terminate as of the effective date
of such termination except (i) the group health plan coverage described in
Section 2.5(i), shall remain available in accordance with the terms of
Section 2.5(i) and (ii) Post shall make available suitable office space at
0000 Xxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx and related equipment and
services, including secretarial, bookkeeping and other support services,
at no expense for the benefit of Executive's estate for no less than the
six (6) month period which starts on Executive's date of death; and
(d) all of Executive's perquisites and benefits to which he has a
right independent of this Agreement shall remain in effect, if at all,
exclusively under the terms and conditions of the plans and programs under
which such perquisites and benefits were granted to Executive.
4.3 For Cause. If Post terminates Executive's employment "For Cause"
(as defined in Section 3.3(e)), Executive shall not thereafter be entitled to
receive any Base Salary for periods following the effective date of such
termination; provided, however, that Executive shall be entitled to receive any
Base Salary which may be owed to Executive but is unpaid as of the effective
date of such termination. All Executive's perquisites and benefits called for
exclusively under the terms of this Agreement shall terminate as of the
effective date of such termination. All Executive's perquisites and benefits,
including stock options, to which Executive has a right independent of this
Agreement shall remain in effect, if at all, exclusively under the terms and
conditions of the plans and programs under which such perquisites and benefits
were granted to Executive.
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4.4 Employee Benefit Plans and Incentive Compensation and Other
Compensatory Arrangements. In addition to the benefits described in Section 4.1,
Section 4.2 and Section 4.3, Executive shall upon Executive's termination of
employment be eligible for such other benefits as may be payable to Executive
under any employee benefit plan then in force.
Section 5.
Change In Control
5.1. General Rule. Subject to Section 3.3(b), Section 5.3 andSection
5.4, no Change in Control or any other change in the control, ownership,
operations or assets of Post shall have any effect whatsoever on Post's
obligations under this Agreement.
5.2 Definitions.
(a) Code. The term "Code" for purposes of this Agreement shall mean
the Internal Revenue Code of 1986, as amended.
(b) Gross Up Payment. The term "Gross Up Payment" for purposes of
this Section 5 shall mean a payment to or on behalf of Executive
which shall be sufficient to pay (a) any excise tax described in
Section 5.3 in full, (b) any federal, state and local income tax and
social security and other employment tax on the payment made to pay
such excise tax as well as any excise and other additional taxes on
such payment, (c) any interest or penalties assessed by the Internal
Revenue Service on Executive which are related to the payment of
such excise tax unless such interest or penalties are attributable
to Executive's willful misconduct or gross negligence and (d) any
federal, state and local income tax and social security tax and
other employment tax on the payment made to pay such interest or
penalties as well as any excise and additional taxes on such
payment.
5.3. Tax Protection. If Post or Post's independent accountants
determine that any payments and benefits called for under this Agreement
together with any other payments and benefits made available to Executive by
Post or a Post affiliate will result in Executive being subject to an excise tax
under Section 4999 of the Code (or any successor provision thereof) or if such
an excise tax is assessed against Executive as a result of any such payments and
other benefits, Post shall make a Gross Up Payment to or on behalf of Executive
as and when any such determination or assessment is made, provided Executive
takes such action (other than waiving Executive's right to any payments or
benefits in excess of the payments or benefits which Executive has expressly
agreed to waive under this Section 5.3) as Post reasonably requests under the
circumstances to mitigate or challenge such tax; provided, however, if Post or
Post's independent accountants make such a determination and, further, determine
that Executive will not be subject to any such excise tax if Executive waives
Executive's right to receive a part of such payments or benefits and such part
does not exceed $25,000, Executive shall irrevocably waive Executive's right
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to receive such part if an independent accountant or lawyer retained by
Executive and paid by Post agrees with the determination made by Post or Post's
independent accountants with respect to the effect of such reduction in payments
or benefits. Any determinations under this Section 5.3 shall be made in
accordance with Section 280G of the Code, including any successor provision
thereof, and any applicable related regulations (whether proposed, temporary or
final) and any related Internal Revenue Service rulings and any related case law
and, if Post reasonably requests that Executive take action to mitigate or
challenge, or to mitigate and challenge, any such tax or assessment (other than
waiving Executive's right to any payments or benefits in excess of the payments
or benefits which Executive has expressly agreed to waive under this Section
5.3) and Executive complies with such request, Post shall provide Executive with
such information and such expert advice and assistance from Post's independent
accountants, lawyers and other advisors as Executive may reasonably request and
shall pay for all expenses incurred in effecting such compliance and any related
fines, penalties, interest and other assessments.
5.4. Attorneys Fees. If any action at law or in equity is necessary
for Executive to enforce or interpret the terms of this Section 5, Post shall
pay Executive's reasonable attorneys' fees and other reasonable expenses
incurred with respect to such action.
Section 6.
Miscellaneous
6.1. Binding Effect. This Agreement shall inure to the benefit of
and shall be binding upon Executive and his executor, administrator, heirs,
personal representative and assigns, and upon Post, Holdings and Services and
their successors and assigns; provided, however, that Executive shall not be
entitled to assign or delegate any of his rights or obligations hereunder
without the prior written consent of Post, Holdings and Services.
6.2. Construction of Agreement. No provision of this Agreement or
any related document shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
drafted such provision.
6.3. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia.
6.4. Survival of Agreements. All covenants and agreements made
herein shall survive the execution and delivery of this Agreement and the
termination of Executive's employment hereunder for any reason.
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6.5. Headings and References. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. All references to sections
(Section) shall be to sections (Section) of this Agreement unless otherwise
expressly stated.
6.6. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to be given
when delivered personally or mailed first class, registered or certified mail,
postage prepaid, in either case, addressed as follows:
(a) to Executive:
Xx. Xxxx X. Xxxxxx
0000 Xxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
With a copy to:
Xx. Xxxxxx X. Xxxxxx
Xxxxxx & Xxxxxx
2700 International Tower
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
(b) If to Post, Holdings or Services:
Post Properties, Inc.
One Riverside
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
with a copy to:
Xx. Xxxxxxxx X. Xxxxx
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
6.7. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
6.8. Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and upon the
Effective Date, will supersede and replace all prior agreements, written and
oral,
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between the parties hereto or with respect to the subject matter hereof. This
Agreement may be modified only by a written instrument signed by each party
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
POST PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
________________________
Title: President
_____________________
POST GP HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
________________________
Title: President
_____________________
POST SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
________________________
Title: President
_____________________
EXECUTIVE
/s/ Xxxx X. Xxxxxx
___________________________
Xxxx X. Xxxxxx
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