EX-10 13 ex104.htm DAVID FITCH SEVERENCE AGREEMENT GABLES RESIDENTIAL TRUST Senior Executive Severance Agreement
Exhibit 10.4
Senior Executive Severance Agreement
AGREEMENT made as of this 8th day of August, 2002 by and among Gables Residential Trust, a Maryland business trust with its principal place of business in Boca Raton, Florida (the "Company"), and Xxxxx Xxxxx (the "Executive"), Chief Investment Officer of the Company.
(a) any "person," as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Act") (other than the Company, any of its Subsidiaries (as defined below), or any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust of the Company or any of its Subsidiaries), together with all "affiliates" and "associates" (as such terms are defined in Rule 12b-2 under the Act) of such person, shall become the "beneficial owner" (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, of securities of the Company representing 40% or more of either (i) the combined voting power of the Company's then outstanding securities having the right to vote in an election of the Board ("Voting Securities") or (ii) the then outstanding common shares of beneficial interest, par value $.01 per share, of the Company ("Shares") (in either such case other than as a result of an acquisition of securities directly from the Company); or
(b) individuals who, as of the date hereof, constitute the Board (the "Incumbent Members") cease for any reason to constitute at least a majority of the Board, provided, however, that any individual becoming a trustee of the Company subsequent to the date hereof (excluding, for this purpose, (A) any such individual whose initial assumption of office is in connection with an actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board, including by reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation, and (B) any individual whose initial assumption of office is in connection with a merger or consolidation, involving an unrelated entity), whose election or nomination for election by the Company's shareholders was approved by a vote of at least a majority of the persons then comprising Incumbent Members shall for purposes of this Agreement be considered an Incumbent Member; or
(c) the consummation of a consolidation or merger of the Company where the shareholders of the Company, immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, "beneficially own" (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, shares representing in the aggregate 50% or more of the voting shares of the corporation issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any) (the "Resulting Corporation"); or
(d) the shareholders of the Company shall approve (A) any sale, lease, exchange or other transfer to an unrelated party (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company or (B) any plan or proposal for the liquidation or dissolution of the Company.
Notwithstanding the foregoing, a "Change in Control" shall not be deemed to have occurred for purposes of the foregoing clause (a) solely as the result of an acquisition of securities by the Company which, by reducing the number of Shares or other Voting Securities outstanding, increases (x) the proportionate number of Shares beneficially owned by any person to 40% or more of the Shares then outstanding or (y) the proportionate voting power represented by the Voting Securities beneficially owned by any person to 40% or more of the combined voting power of all then outstanding Voting Securities; provided, however, that if such person referred to in clause (x) or (y) of this sentence shall thereafter become the beneficial owner of any additional Shares or Voting Securities (other than pursuant to a stock split, stock dividend, or similar transaction or as a result of an acquisition of securities directly from the Company) and immediately thereafter beneficially owns 40% or more of the combined voting power of all the outstanding Voting Securities or 40% or more of the Shares then outstanding, then a "Change in Control" shall be deemed to have occurred for purposes of the foregoing clause (a).
Notwithstanding the foregoing, a "Change in Control" shall not be deemed to have occurred for purposes of the foregoing clause if after the consummation of a consolidation or merger of the Company where the shareholders of the Company, immediately prior to the consolidation or merger, would, immediately after the consolidation or merger, "beneficially own" (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, shares representing in the aggregate less than 50% or more of the voting shares of the Resulting Corporation, the Incumbent Members constitute at least 50% of the board of directors or board of trustees of the Resulting Corporation and the Chairman and Chief Executive Officer of the Company prior to the consolidation or merger remains the Chief Executive Officer of the Resulting Company immediately after consolidation or merger.
As used in this definition of "Change in Control," the term "Subsidiary" means Gables Realty Limited Partnership, Gables Residential Services, Inc., Gables Central Construction, Inc., and Gables East Construction, Inc., and any corporation or other entity (other than the Company) in any unbroken chain of corporations or other entities, beginning with the Company if each of the corporations or entities (other than the last corporation or entity in the unbroken chain) owns stock or other interest possessing 50% or more of the economic interest or the total combined voting power of all classes of stock or other interest in one of the other corporations or entities in the chain.
(a) termination by the Company of the employment of the Executive with the Company and its Subsidiaries for any reason other than for Cause or the death of the Executive. "Cause" shall mean, and shall be limited to, the occurrence of any one or more of the following events:
(i) a willful act of dishonesty by the Executive in connection with the performance of his material duties involving the Company or any of its Subsidiaries; or
(ii) conviction of the Executive of a crime involving moral turpitude or conviction of a felony and such conviction has a material adverse affect on the interests of the Company; or
(iii) the deliberate or willful failure by the Executive (other than by reason of the Executive's physical or mental illness, incapacity or disability) to substantially perform the Executive's duties with the Company and the continuation of such failure for a period of 30 days after delivery by the Company to the Executive of written notice specifying the scope and nature of such failure and its intention to terminate the Executive for Cause.
A Terminating Event shall not be deemed to have occurred pursuant to this Section 3(a) solely as a result of the Executive being an employee of any direct or indirect successor to the business or assets of the Company, rather than continuing as an employee of the Company following a Change in Control. For purposes of clauses (i) and (iii) of this Section 3(a), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive without reasonable belief that the Executive's act, or failure to act, was in the best interest of the Company; or
(b) termination by the Executive of the Executive's employment with the Company and its Subsidiaries for Good Reason. "Good Reason" shall mean the occurrence of any of the following events:
(i) a substantial adverse change in the nature or scope of the Executive's responsibilities, authorities, powers, functions, or duties from the responsibilities, authorities, powers, functions, or duties exercised by the Executive immediately prior to the Change in Control; or
(ii) a reduction in the Executive's annual base salary as in effect on the date hereof or as the same may be increased from time to time except for across-the-board salary reductions similarly affecting all or substantially all management employees; or
(iii) the relocation of the Company's offices at which the Executive is principally employed immediately prior to the date of a Change in Control to a location more than 30 miles from such offices, or the requirement by the Company for the Executive to be based anywhere other than the Company's offices at such location, except for required travel on the Company's business to an extent substantially consistent with the Executive's business travel obligations immediately prior to the Change in Control; or
(iv) the failure by the Company to pay to the Executive any portion of his compensation or to pay to the Executive any portion of an installment of deferred compensation under any deferred compensation program of the Company within 15 days of the date such compensation is due without prior written consent of the Executive; or (v) the failure by the Company to obtain an effective agreement from any successor to assume and agree to perform this Agreement.
(i) the Company shall pay to the Executive an amount equal to three (3) times the sum of Executive's (i) most recent annual base salary (or Executive's annual base salary immediately prior to the Change in Control, if higher), (ii) the cash bonus awarded for the fiscal year of the Company most recently ended prior to the Change of Control, if any, and (iii) the value of the entire restricted stock grant (determined using the fair market value on the date of grant, less consideration paid, if any, of both the vested and unvested portion of the total grant, without regard to any restrictions thereon) awarded for the fiscal year of the Company most recently ended prior to the Change of Control, if any.
Said amount shall be paid in one lump sum payment no later than 31 days following the date of termination; and
(b) the Company shall pay to the Executive all reasonable legal and mediation fees and expenses incurred by the Executive in obtaining or enforcing any right or benefit provided by this Agreement, except in cases involving frivolous or bad faith litigation initiated by the Executive.
6. Withholding: All payments made by the Company under this Agreement shall be net of any tax or other amounts required to be withheld by the Company under applicable law. 8. Assignment; Prior Agreements. Neither the Company nor the Executive may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other party, and without such consent any attempted transfer shall be null and void and of no effect. This Agreement shall inure to the benefit of and be binding upon the Company and the Executive, their respective successors, executors, administrators, heirs and permitted assigns. In the event of the Executive's death after a Terminating Event but prior to the completion by the Company of all payments due him under Section 4 of this Agreement, the Company shall continue such payments to the Executive's beneficiary designated in writing to the Company prior to his death (or to his estate, if the Executive fails to make such designation).14. Amendment. This Agreement may be amended or modified only by a written instrument signed by the Executive and by a duly authorized representative of the Company. 15. Governing Law. This is a Maryland contract and shall be construed under and be governed in all respects by the laws of the State of Maryland.
Gables Residential Trust
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx Chief Executive Officer
By: /s/ Xxxxx Xxxxx Xxxxx Xxxxx