EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS EMPLOYMENT AGREEMENT (this “Agreement”) effective
as of January 1, 2010 by and between MID-AMERICA APARTMENT COMMUNITIES,
INC., a Tennessee corporation (the “Company”), and SIMON X.X. XXXXXXXXX (“Xxxxxxxxx”).
WITNESSETH:
WHEREAS, the Company and
Xxxxxxxxx entered into that certain employment agreement between Mid-America
Apartment Communities, Inc. and Xxxxxxxxx effective as of December 5, 2008 (the
“Original Employment
Agreement”);
WHEREAS, the Company and
Xxxxxxxxx desire to enter into this Agreement which supersedes and replaces in
its entirety the Original Employment Agreement;
WHEREAS, the Company desires
to employ Xxxxxxxxx to serve as a Special Advisor to the Chief Executive Officer
of the Company; and
WHEREAS, to the extent this
Agreement provides for any “deferred compensation” within the meaning of Section
409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Agreement
will be administered in compliance with Code Section 409A and the regulations
promulgated thereunder; and
WHEREAS, the Company and
Xxxxxxxxx each deem it necessary and desirable to execute a written document
setting forth the terms and conditions of said relationship.
NOW, THEREFORE, in
consideration of the premises and mutual obligations hereinafter set forth the
parties agree as follows:
1. Definitions. For
purposes of this Agreement, the following terms shall have the following
definitions:
“1994 Plan” means the
Company’s Amended and Restated 1994 Restricted Stock and Stock Option
Plan.
“2004 Plan” means the
Company’s 2004 Stock Plan.
“Agreement” has the
meaning set forth in the preamble above.
“Arbitrators” means
the arbitrators selected to conduct any arbitration proceeding in connection
with any disputes arising out of or relating to this Agreement.
“Base Salary” means
the annual salary to be paid to Xxxxxxxxx as set forth in Section 4(a) of
this Agreement.
“Benefit Plans” has
the meaning set forth in Section 4(c) of
this Agreement.
“Board” means the
Board of Directors of the Company.
“Code” has the meaning
set forth in the recitals above.
“Company” means
Mid-America Apartment Communities, Inc., a Tennessee corporation, and any
successor to its business and/or assets which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
“Company Shares” means
the shares of common stock of the Company or any securities of a successor
company which shall have replaced such common stock.
“Compensation
Committee” means the compensation committee of the Board.
“Fair Market Value”
means, on any give date, the closing sale price of the common stock of the
Company on the New York Stock Exchange on such date, or, if the New York Stock
Exchange shall be closed on such date, the next preceding date on which the New
York Stock Exchange shall have been open.
“Multi-Family Residential
Business” means the business of acquiring, developing, constructing,
owning or operating multi-family residential apartment communities.
“Multi-Family Residential
Property” means any real estate upon which the Multi-Family Residential
Business is being conducted.
“Option(s)” means any
options issued to Xxxxxxxxx pursuant to the 1994 Plan, 2004 Plan or any other
equity incentive plan adopted by the Company, any option granted with respect to
Partnership Units, or any option granted under the plan of any successor company
that replaces or assumes the Company’s or the Partnership’s
options.
“Original Employment
Agreement” has the meaning set forth in the recitals.
“Partnership” means
Mid-America Apartments, L.P., a Tennessee limited partnership.
“Partnership Unit(s)”
means limited partnership interests of the Partnership. The holder
has the option of requiring the Company to redeem such interests. The
Company may elect to effectuate such redemption by either paying cash or
exchanging Company Shares for such interests.
“Permanent Disability”
means Xxxxxxxxx: (i) is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than twelve (12) months; or (ii) is, by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than twelve
(12) months, receiving income replacement benefits for a period of not less than
three (3) months under an accident and health plan covering employees or
directors of the Company. Medical determination of Permanent
Disability may be made by either the Social Security Administration or by the
provider of an accident or health plan covering employees of the Company
provided that the definition of “disability” applied under such disability
insurance program complies with the requirements of the preceding
sentence. Upon the request of the Company, Xxxxxxxxx must submit
proof to the Company of the Social Security Administration’s or the provider’s
determination.
“Restricted Stock”
means any share of restricted common stock issued to Xxxxxxxxx pursuant to the
1994 Plan, 2004 Plan or any other equity incentive plan adopted by the Company,
any option granted with respect to Partnership Units, or any restricted stock
granted under the plan of any successor company that replaces or assumes the
Company’s or the Partnership’s restricted stock awards.
“Separation From
Service” occurs if Xxxxxxxxx dies, retires, or otherwise has a
termination of employment with the Company. However, the employment
relationship is treated as continuing intact while the individual is on military
leave, sick leave, or other bona fide leave of absence if the period of such
leave does not exceed six months, or if longer, so long as the individual
retains a right to reemployment with the service recipient under an applicable
statute or by contract. A termination of employment has occurred where the
parties reasonably anticipate that no further services would be performed by
Xxxxxxxxx after a certain date. The provisions of this paragraph will
be construed and applied in a manner consistent with Treasury Regulations under
Code Section 409A.
“Specified Employee”
means a key employee (as defined in Section 416(i) of the Code without regard to
paragraph 5 thereof) of the Company if any stock of the Company is publicly
traded on an established securities market or otherwise.
“Term” has the meaning
assigned to it in Section 3 of
this Agreement.
“Termination Date”
means the date on which Xxxxxxxxx incurs a Separation From Service, which date
shall be (i) in the case of Xxxxxxxxx’x death, the date of death, (ii) in the
case of Xxxxxxxxx’x Permanent Disability, 30 days after a Termination Notice is
given and Xxxxxxxxx does not return to the performance of his duties within such
30 day period; (iii) in the case of a Termination With Cause, the date of the
Termination Notice; or (iv) in all other instances, the date specified as the
Termination Date in the Termination Notice, which date shall not be less than
thirty nor more than sixty days from the date the Termination Notice is
given.
“Termination Notice”
means a written notice of Termination of employment by Xxxxxxxxx or the
Company.
“Termination With
Cause” means Xxxxxxxxx’x Separation From Service for any of the following
reasons:
(1) a
conviction of Xxxxxxxxx, or plea of nolo contendere by Xxxxxxxxx with respect to
a crime constituting (i) a felony under the laws of the United States or any
state thereof, or (ii) a misdemeanor involving moral turpitude;
(2) Xxxxxxxxx’x
theft, embezzlement, misappropriation of or intentional infliction of material
damage to the Company’s property or business opportunity;
(3) Xxxxxxxxx’x
intentional breach of the noncompetition provisions contained in Section 11 of
this Agreement; or
(4) Xxxxxxxxx’x
ongoing neglect of or failure to perform his duties hereunder or his ongoing
failure or refusal to follow any reasonable, unambiguous directive of the Chief
Executive Officer of the Company that is not inconsistent with the description
of Xxxxxxxxx’x duties set forth in Section
2;
(5) Xxxxxxxxx’x
material breach of a written employment policy of the Company, which is not
cured within seven (7) days after written notice thereof to
Xxxxxxxxx;
(6) Xxxxxxxxx’x
breach of any fiduciary duty of care or loyalty to the Company;
(7) Without
the prior consent or direction of the Chief Executive Officer, Xxxxxxxxx’x
engaging in discussions with any shareholder or potential shareholder of the
Company or any person identified in Rule 100(b) of Regulation FD;
or
(8) Any
other breach by Xxxxxxxxx of this Agreement which is material and which is not
cured within thirty (30) days after written notice thereof to
Xxxxxxxxx.
“Termination Without
Cause” means Xxxxxxxxx’x Separation From Service by the Company for any
reason other than Termination With Cause, or termination by the Company due to
Xxxxxxxxx’x death or Permanent Disability.
“Uniform Arbitration
Act” means the Uniform Arbitration Act, Tennessee Code Annotated §
29-5-391 et seq., as amended.
“Voluntary
Termination” means Xxxxxxxxx’x voluntary termination of his employment
hereunder for any reason. If Xxxxxxxxx gives a Termination Notice of
Voluntary Termination and, prior to the Termination Date, Xxxxxxxxx voluntarily
refuses or fails to provide substantially all the services described in Section 2 hereof
for a period greater than two consecutive weeks, the Voluntary Termination shall
be deemed to be effective as of the date on which Xxxxxxxxx so ceases to carry
out his duties. Voluntary refusal to perform services shall not include taking
vacation otherwise permitted in accordance with Section
4(d) hereof, Xxxxxxxxx’x failure to perform services on account of
his illness or the illness of a member of his immediate family, provided such
illness is adequately substantiated at the reasonable request of the Company, or
any other absence from service with the consent of the Chief Executive Officer
of the Company.
“Xxxxxxxxx” means the
person identified in the preamble paragraph of this Agreement.
2. Employment; Services.
The Company and Xxxxxxxxx acknowledge and agree that the Original Employment
Agreement is hereby terminated by mutual consent and neither the Company nor
Xxxxxxxxx shall have any continuing obligation to the other pursuant to the
terms of the Original Employment Agreement. The mutual agreements and
covenants contained in this Agreement shall replace and supersede in their
entirety the provisions of the Original Employment Agreement. The
Company shall employ Xxxxxxxxx, and Xxxxxxxxx agrees to be so employed, in the
capacity of Special Advisor to the Chief Executive Officer of the Company to
serve for the Term hereof, subject to earlier Termination as hereinafter
provided. Xxxxxxxxx shall devote such amount of his time and
attention to the Company’s affairs as are necessary to perform his duties to the
Company in his capacity as Special Advisor to the Chief Executive Officer, but
in no event less than twenty (20) hours per week.
3. Term; Termination of
Agreement.
(a) The
term of Xxxxxxxxx’x employment hereunder shall commence on the date hereof and
shall continue until the later to occur of (i) May 22, 2012 or (ii) the date
upon which the Company holds its Annual Meeting of Shareholders in 2012, unless
terminated earlier in accordance with the terms of this
Agreement (the “Term”).
(b) Any
purported Termination of employment by Xxxxxxxxx or the Company shall be
communicated by a Termination Notice. The Termination Notice shall
indicate the specific Termination provision in this Agreement relied upon and
set forth the facts and circumstances claimed to provide a basis for
Termination.
4. Compensation.
(a) Base
Salary. During the Term, the Company shall pay Xxxxxxxxx for
his services a “Base
Salary” of $132,953.50, to be paid in accordance with customary Company
policies, such Base Salary being subject to any increases approved by the
Compensation Committee.
(b) Annual
Bonus. The Company shall pay to Xxxxxxxxx an annual bonus of
up to 100% of Xxxxxxxxx’x then current Base Salary upon the attainment of
specific Company and personal performance goals established by joint agreement
of Xxxxxxxxx and the Chief Executive Officer of the Company and approved by the
Compensation Committee. The Compensation Committee, upon review of
performance for purposes of determining an annual bonus award will also have an
ability to apply a “discretionary modifier”, increasing or decreasing the
calculated bonus award by an additional amount not to exceed 25% of the
calculated annual bonus. Any Annual Bonus shall be paid no later than
2 ½ months after the end of the Company’s fiscal year in which the Annual Bonus
was earned.
(c) Benefit
Plans. During the Term, Xxxxxxxxx shall be entitled to
participate in, and to all rights and benefits provided by each and every
health, life, medical, dental, disability, insurance and other welfare plan
maintained by the Company including, without limitation, the benefits
contemplated by Section 4 of this
Agreement, that are maintained from time to time by the Company for the benefit
of Xxxxxxxxx, or for the Company’s employees generally, provided that Xxxxxxxxx
is eligible to participate in such plan under the eligibility provisions thereof
that are generally applicable to the participants thereof (collectively, “Benefit
Plans”).
(d) Vacation. Xxxxxxxxx
shall be entitled each calendar year to vacation time, during which time his
compensation shall be paid in full. The time allotted for such vacation shall be
twenty-three (23) days (plus eight (8) regular holidays), in accordance with
Company policy.
(e) Overall
Qualification. Nothing in this Agreement shall be construed as
preventing the Company from modifying, suspending, discontinuing or terminating
any of the Benefit Plans or Award Plans without notice or liability to Xxxxxxxxx
so long as (i) the modification, suspension, discontinuation or Termination of
any such plan is authorized by and performed in accordance with the specific
provisions of such plan and (ii) such modification, suspension, discontinuation
or Termination is taken generally with respect to all similarly situated
employees of the Company and does not single out or discriminate against
Xxxxxxxxx.
5. Expenses. The Company
recognizes that Xxxxxxxxx will have to incur certain out-of-pocket expenses,
including but not limited to travel expenses, related to his services and the
Company’s business and the Company agrees to reimburse Xxxxxxxxx for all
reasonable expenses necessarily incurred by him in the performance of his duties
upon presentation of a voucher or documentation indicating the amount and
business purposes of any such expenses; provided that Xxxxxxxxx complies with
the Company’s policies and procedures regarding business expenses.
6. Voluntary
Termination. If Xxxxxxxxx shall cease being an employee of the
Company on account of a Voluntary Termination, Xxxxxxxxx shall not be entitled
to any compensation after the Termination Date of such Voluntary Termination
(except Base Salary and vacation accrued but unpaid on the Termination Date of
such event). In the event of a Voluntary Termination, Xxxxxxxxx shall
continue to be subject to the noncompetition covenant contained in Section
11. Upon a Voluntary Termination, (i) the Company shall use
its commercially reasonable best efforts to cause its then-current health and
dental insurance provider to extend health and dental coverage (on substantially
identical terms to those provided to all executive officers of the Company) to
Xxxxxxxxx until he reaches the age of 65, all at the Company’s sole cost and
expense; (ii) in the event the Company is unsuccessful in causing its health and
dental insurance provider to so extend coverage, (A) if Xxxxxxxxx’x Separation
From Service occurs after Xxxxxxxxx attains the age of 63 years and 6 months,
the Company shall pay to Xxxxxxxxx a single lump sum payment equal to the COBRA
continuation coverage premiums necessary to pay for the expected COBRA coverage
until the earlier to occur of (1) the 18 month anniversary of the date of the
Voluntary Termination or (2) Xxxxxxxxx reaching the age of 65, and (B) if
Xxxxxxxxx’x Separation From Service occurs before Xxxxxxxxx attains the age of
63 years and 6 months, the Company will purchase an individual health insurance
policy for the benefit of Xxxxxxxxx and his spouse that will provide
substantially similar benefits to those provided by the Company’s health and
dental plans, which will cover Xxxxxxxxx and his spouse from the date of
expiration of the COBRA continuation coverage until Xxxxxxxxx reaches the age of
65 (the “Continuing
Health Care Benefits”). All payments under this Section 6 shall
be made no later than the last day of the calendar year following the year in
which the expense is incurred and in no event will the benefits provided during
one calendar year affect the benefits provided in any other calendar
year. The Continuing Health Care Benefits are not subject to
liquidation or exchange for any other benefit. Notwithstanding the
foregoing, if Xxxxxxxxx is a Specified Employee and the total of the payments
under this Section 6
exceeds the limit set forth in Treas. Reg. §1.409A-1(b)(9)(iii)(A) (related to
separation pay), then, the amount in excess of such limit shall be delayed for
six (6) months following Xxxxxxxxx’x Termination Date. The delayed
amount shall be paid in a lump sum after the end of the six-month
delay.
7. Termination With
Cause. If Xxxxxxxxx shall cease being an employee of the
Company on account of a Termination With Cause, Xxxxxxxxx shall not be entitled
to any compensation or benefits from the Company after the Termination Date of
such Termination With Cause (except Base Salary and vacation accrued but unpaid
on the Termination Date of such event). In the event of a Termination With
Cause, Xxxxxxxxx shall continue to be subject to the noncompetition covenant
contained in Section
11.
8. Death or Disability.
In the event of Xxxxxxxxx’x death or Permanent Disability, the Company shall
continue to pay Xxxxxxxxx or his heirs, devisees, executors, legatees or
personal representatives, as appropriate, the semi-monthly payments of the Base
Salary then in effect until the earlier to occur of (a) one year from
Xxxxxxxxx’x death or Termination Date following determination of Permanent
Disability, as applicable or (b) May 12, 2012. The Company shall also
pay any amounts due pursuant to the terms of any Benefit Plans in which
Xxxxxxxxx was a participant, including, without limitation, the pro rata amount
of any bonus to be paid to Xxxxxxxxx for the fiscal year in which Xxxxxxxxx was
terminated. Further, if Xxxxxxxxx’x employment is terminated due to
Xxxxxxxxx’x Permanent Disability and if Xxxxxxxxx is no longer eligible to
participate in one or more of the Benefit Plans the Company will provide the
Continuing Health Care Benefits. Upon a Termination due to
Xxxxxxxxx’x death, the Company will provide the Continuing Health Care Benefits
to Xxxxxxxxx’x spouse until she reaches 65 years of age. All payments
under this Section 8 shall
be made no later than the last day of the calendar year following the year in
which the expense is incurred and in no event will the benefits provided during
one calendar year affect the benefits provided in any other calendar year. The
Continuing Health Care Benefits are not subject to liquidation or exchange for
any other benefit.
9. Termination Without
Cause. The Company may terminate Xxxxxxxxx for any reason, or
no reason at all, at any time, provided that, upon an involuntary Termination
Without Cause, the Company shall provide the compensation and benefits set forth
in this Section 8. The
Company shall continue to pay Xxxxxxxxx the semi-monthly payments of the Base
Salary then in effect until the earlier to occur of (a) one year after the
Termination Date or (b) May 12, 2012. The Company shall also pay on
the Termination Date any amounts then due pursuant to the terms of any Benefit
Plans in which Xxxxxxxxx was a participant, including, without limitation, the
pro rata amount of any bonus to be paid to Xxxxxxxxx for the fiscal year in
which Xxxxxxxxx was terminated. In addition, the Company shall
provide the Continuing Health Care Benefits to Xxxxxxxxx. All
payments under this Section 9 shall
be made no later than the last day of the second calendar year following the
year in which the Termination Date occurs. Notwithstanding the
foregoing, if Xxxxxxxxx is a Specified Employee and the total of the payments
under this Section 9
exceeds the limit set forth in Treas. Reg. §1.409A-1(b)(9)(iii)(A) (related to
separation pay), then, the amount in excess of such limit shall be delayed for
six (6) months following Xxxxxxxxx’x Termination Date. The delayed
amount shall be paid in a lump sum after the end of the six-month
delay. In no event will the total payments under this Section 9 exceed
two times the lesser of (1) the sum of Xxxxxxxxx’x annualized compensation based
on the annual rate of pay for the calendar year prior to the year of Separation
From Service (adjusted for any increase expected to continue indefinitely if
Xxxxxxxxx had not terminated), or (2) the Code Section 401(a)(17) limit on pay
for the year in which the Termination Date occurs.
10. Stock Options; Restricted
Stock. All Options and Restricted Stock granted to Xxxxxxxxx
shall become fully vested at the Termination Date. In lieu of Company
Shares issuable upon exercise of any outstanding and unexercised Options granted
to Xxxxxxxxx, Xxxxxxxxx may, at Xxxxxxxxx’x option, receive an amount in cash
equal to the product of (i) the Fair Market Value of Company Shares on the
Termination Date over the per share exercise price of each Option held by
Xxxxxxxxx, times (ii) the number of Company Shares covered by each such
Option. In the event Xxxxxxxxx does not elect to receive a cash
payment for any outstanding and unexercised Options granted to Xxxxxxxxx,
Xxxxxxxxx shall have the right to exercise such Options in accordance with the
terms and conditions provided in the applicable stock option plans as if
Xxxxxxxxx had continued his employment with the Company, notwithstanding
Xxxxxxxxx’x termination.
11. Noncompetition.
(a) During
the Term, Xxxxxxxxx shall not, other than through the Company or affiliates of
the Company, own any interest in any Multi-Family Residential Property (other
than Multi-Family Residential Property in which the Company or the Partnership
has an ownership interest), as partner, shareholder or otherwise, or engage in
the Multi-Family Residential Business, directly or indirectly, for his own
account or for the account of others, either as an officer, director,
shareholder, owner, partner, promoter, employee, consultant, advisor, agent,
manager, or in any other capacity. For a period of two (2) years
after a termination of his employment hereunder, Xxxxxxxxx shall not own any
interest in any Multi-Family Residential Property as partner, shareholder or
otherwise, or directly or indirectly, for his own account or for the account of
others, either as an officer, director, promoter, employee, consultant, advisor,
agent, manager, or in any other capacity, engage in the Multi-Family Residential
Business within 5 miles of any Multi-Family Residential Property owned by the
Company or the Partnership at the time of Termination of employment; provided,
however, that Xxxxxxxxx may purchase or otherwise acquire up to (but not more
than) One Hundred Thousand Dollars ($100,000.00) in the aggregate of any class
of the securities of Multi-Family Residential Businesses if the securities have
been registered under Section 12(b) or Section 12(g) of the Securities Exchange
Act of 1934 and the rules and regulations promulgated thereunder.
(b) Xxxxxxxxx
agrees that damages at law for violation of the restrictive covenant contained
herein would not be an adequate or proper remedy to the Company, and that should
Xxxxxxxxx violate or threaten to violate any of the provisions of such covenant,
the Company, its successors or assigns, shall be entitled to obtain a temporary
or permanent injunction, as appropriate, against Xxxxxxxxx in any court having
jurisdiction over the person and the subject matter, prohibiting any further
violation of any such covenants. The injunctive relief provided herein shall be
in addition to any award of damages, compensatory, exemplary or otherwise,
payable by reason of such violation.
(c) Furthermore,
Xxxxxxxxx acknowledges that this Agreement has been negotiated at arms’ length
by the parties, neither being under any compulsion to enter into this Agreement,
and that the foregoing restrictive covenant does not in any respect inhibit his
ability to earn a livelihood in his chosen profession without violating the
restrictive covenant contained herein. The Company by these presents has
attempted to limit Xxxxxxxxx’x right to compete only to the extent necessary to
protect the Company from unfair competition. The Company recognizes, however,
that reasonable people may differ in making such a determination. Consequently,
the Company agrees that if the scope or enforceability of the restricted
covenant contained herein is in any way disputed at any time, a court or other
trier of fact may modify and enforce the covenant to the extent that it believes
to be reasonable under the circumstances existing at the time.
12. Payment of
Premiums. For any period prior to Xxxxxxxxx’x attainment of
age 65 when the available coverage is third-party insured, MAA shall timely pay
the premiums for such coverage as the premiums come due. For any
period prior to Xxxxxxxxx’x attainment of age 65, when the coverage is
self-insured by the Company for Code Section 105(h) purposes, Xxxxxxxxx shall be
obligated to pay each premium as the premium comes due, and on a monthly basis
MAA will reimburse Xxxxxxxxx for premiums covered and paid during the prior
month, grossed up for federal income taxes at a 35% assumed marginal
rate. For any period after Xxxxxxxxx’x attainment of age 65, and for
any period during which the coverage provided is COBRA coverage, the premium for
any such available coverage, whether third-party insured or self-insured, shall
be borne by Xxxxxxxxx.
13. Required Benefit Delay in
Certain Circumstances. Under any circumstances where the
benefits provided to Xxxxxxxxx constitutes deferred compensation for purposes of
Code Section 409A at a time when Xxxxxxxxx would be treated as a Specified
Employee for such purposes, and if the payment triggering event is a Separation
From Service other than due to Xxxxxxxxx’x death or Disability, then no such
deferred compensation shall be paid until six months and one day after Xxxxxxxxx
ceases to provide any services for the Company, and any amount which would
otherwise have been paid to or on behalf of Xxxxxxxxx during such period shall
be paid at the end of such period. In the interim, during such
period, Xxxxxxxxx shall be required to pay any premium costs for the coverage
provided and, in such event, the payments made by Xxxxxxxxx during six month and
one day period shall be paid to Xxxxxxxxx.
14. Employment
Status. The parties acknowledge and agree that Xxxxxxxxx is an
employee of the Company, not an independent contractor. Any payments
made to Xxxxxxxxx by the Company pursuant to this Agreement shall be treated for
federal and state payroll tax purposes as payments made to a Company employee,
irrespective whether such payments are made subsequent to the Termination
Date.
15. Notices. All
notices or deliveries authorized or required pursuant to this Agreement shall be
deemed to have been given when in writing and personally delivered or when
deposited in the U.S. mail, certified, return receipt requested, postage
prepaid, addressed to the parties at the following addresses or to such other
addresses as either may designate in writing to the other party:
|
To
the Company:
|
0000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxxx 00000
Attn: Chief
Executive Officer
|
|
To
Xxxxxxxxx:
|
Simon
X.X. Xxxxxxxxx
00
Xxxxxx Xxxx
Xxxxxxx,
Xxxxxxxxx 00000
|
16. Entire Agreement.
This Agreement contains the entire understanding between the parties hereto with
respect to the subject matter hereof and shall not be modified in any manner
except by instrument in writing signed, by or on behalf of, the parties hereto;
provided, however, that any amendment or Termination of the covenant of
noncompetition in Section 10 must be approved by a majority of the Directors of
the Company other than Xxxxxxxxx, if Xxxxxxxxx is then a director of the
Company. This Agreement shall be binding upon and inure to the benefit of the
heirs, successors and assigns of the parties hereto.
17. Arbitration. Any
controversy concerning or claim arising out of or relating to this Agreement
shall be settled by final and binding arbitration in Memphis, Shelby County,
Tennessee at a location specified by the party seeking such
arbitration.
(a) The
Arbitrators. Any arbitration proceeding shall be conducted by
three (3) Arbitrators and the decision of the Arbitrators shall be binding on
all parties. Each Arbitrator shall have substantial experience and
expert competence in the matters being arbitrated. The party desiring
to submit any matter relating to this Agreement to arbitration shall do so by
written notice to the other party, which notice shall set forth the items to be
arbitrated, such party’s choice of Arbitrator, and such party’s substantive
position in the arbitration. The party receiving such notice shall,
within fifteen (15) days after receipt of such notice, appoint an Arbitrator and
notify the other party of its appointment and of its substantive
position. The Arbitrators appointed by the parties to the Arbitration
shall select an additional Arbitrator meeting the aforedescribed
criteria. The Arbitrators shall be required to render a decision in
accordance with the procedures set forth in Subparagraph (b) below within thirty
(30) days after being notified of their selection. The fees of the
Arbitrators shall be equally divided amongst the parties to the
arbitration.
(b) Arbitration
Procedures. Arbitration shall be conducted in accordance with
the Uniform Arbitration Act, except to the extent the provisions of such Act are
modified by this Agreement or the subsequent mutual agreement of the
parties. Judgment upon the award rendered by the Arbitrator(s) may be
entered in any court having jurisdiction thereof. Any party hereto
may bring an action, including a summary or expedited proceeding, to compel
arbitration of any controversy or claim to which this provision applies in any
court having jurisdiction over such action in Shelby County, Tennessee, and the
parties agree that jurisdiction and venue in Shelby County, Tennessee are
appropriate and approved by such parties.
18. Applicable Law. This
Agreement shall be governed and construed in accordance with the laws of the
State of Tennessee.
19. Assignment. Xxxxxxxxx
acknowledges that his services are unique and personal. Accordingly, Xxxxxxxxx
may not assign his rights or delegate his duties or obligations under this
Agreement, except with respect to certain rights to receive payments as
described in Section 8.
20. Headings. Headings
in this Agreement are for convenience only and shall not be used to interpret or
construe its provisions.
21. Successors; Binding
Agreement. The Company will require any successor to all
or substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such assumption and
agreement prior to the effectiveness of any such succession shall be a beach of
this Agreement and shall entitle Xxxxxxxxx to compensation from the Company in
the same amount and on the same terms as Xxxxxxxxx would be entitled to
hereunder if Xxxxxxxxx terminates his employment for Good Reason. The
Company’s rights and obligations under this Agreement shall inure to the benefit
of and shall be binding upon the Company’s successors and assigns.
22. Serving as a
Director. Xxxxxxxxx agrees to continue to serve as a director
on the Board and complete the term which expires with the shareholder meeting in
2010. Subject to the policies and procedures that define the process
by which an incumbent director is nominated by the Corporate Governance
Committee and full Board to serve an additional term as a director, it is
expected that Xxxxxxxxx will continue to be nominated to serve as a director
until the shareholder meeting in 2012. Continuation as a
director-nominee for successive annual terms from 2010 till 2012 will be
determined by the Corporate Governance Committee of the Board and conditioned on
adherence to the Corporate Governance Guidelines governing the nomination and
election of all directors of MAA. Nothing in this Agreement will
over-ride or supersede the policies and guidelines outlined in MAA’s Corporate
Governance Guidelines concerning nomination, election, responsibilities and
actions as a director of MAA. In all instances, the election of
Xxxxxxxxx to the Board must be approved by the shareholders of the
Company.
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IN WITNESS WHEREOF, the parties have
executed this Agreement effective as of the date first above
written.
MID-AMERICA APARTMENT
COMMUNITIES, INC.
By: /s/H. Xxxx Xxxxxx,
Xx.
H. Xxxx Xxxxxx, Xx.
Chief Executive Officer
XXXXXXXXX:
/s/Xxxxx X.X.
Xxxxxxxxx
Xxxxx X.X. Xxxxxxxxx
