EXHIBIT 10.3
EXECUTION COPY
AMENDED AND RESTATED EMPLOYMENT
AND CHANGE IN CONTROL AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AND CHANGE IN CONTROL AGREEMENT (the
"Agreement"), is made and entered into as of this 17th day of October, 2005, by
and among XXXXXXXXXXX X. XXXX (the "Executive"), and POST PROPERTIES, INC., a
Georgia corporation ("Post"), POST APARTMENT HOMES, L.P., a Georgia limited
partnership ("Post Apartment Homes"), and POST SERVICES, INC., a Georgia
corporation ("Post Services", and together with Post and Post Apartment Homes,
the "Post Parties").
REASONS FOR THIS AGREEMENT.
The Post Parties have identified Executive as an individual with
significant skills and experience critical to the business of the Post Parties.
In view of the significant and growing demand for executive talent and the need
to ensure continuity of Post's senior management team, the Post Parties desire
to provide Executive through this Agreement with certain incentives to remain in
the Post Parties' employment. This Agreement is also designed to provide
additional motivation for meeting the Post Parties' goals and objectives, to
address potential long term employment concerns of Executive, and to impose
certain reasonable restrictions on Executive's activities designed to protect
the Post Parties' interests should Executive's employment terminate.
Executive acknowledges that the Post Parties and Post Affiliates shall
disclose or make available Confidential Information and Trade Secrets to
Executive that could be used by Executive to the Post Parties' or Post
Affiliates' detriment. In addition, in connection with his employment, Executive
shall develop important relationships and contacts with employees valuable to
the Post Parties and Post Affiliates.
Executive further acknowledges that Sections 7, 8, 9 and 10 of this
Agreement are fair and reasonable, enforcement of the provisions of this
Agreement will not cause him undue hardship, and the provisions of this
Agreement are reasonably necessary and commensurate with the need to protect the
Post Parties and Post Affiliates and their business interests and property from
irreparable harm.
WHEREAS, Post and Executive are parties to that certain employment
agreement dated December 1, 2003 (the "Original Employment Agreement");
WHEREAS, Post and Executive have agreed to amend and restate the Original
Employment Agreement;
WHEREAS, the Post Parties desire to employ Executive, and Executive
desires to be employed by the Post Parties on the terms and conditions contained
in this Agreement, and 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, the parties to this Agreement, intending to be legally bound,
hereby agree as follows:
SECTION 1. DEFINITIONS.
1.1. Board. The term "Board" for purposes of this Agreement shall mean the
Board of Directors of Post.
1.2. Cash Compensation. The term "Cash Compensation" for purposes of this
Agreement shall mean the sum of:
(a) Executive's annual salary (as determined without regard to any
salary deferral election) payable pursuant to Section 5.1 in effect on the
day before Executive's employment terminates under Section 4, Section 6.1
or Section 6.3 or, if greater, Executive's average annualized annual
salary (as determined without regard to any salary deferral election) paid
pursuant to Section 5.1 over the three (3) consecutive year period (or, if
less, Executive's period of employment by the Post Parties) which ends on
the date that Executive's employment so terminates (for the avoidance of
doubt, Executive's employment prior to the date of this Agreement may be
used in calculating Executive's average annualized combined annual
salary), and
(b) the average annual bonuses which have been paid pursuant to
Section 5.2 or which would have been paid pursuant to Section 5.2 but for
a bonus deferral election with respect to Executive's performance over the
three (3) consecutive year period which ends on the date that Executive's
employment so terminates (or, if less, Executive's period of employment by
the Post Parties) whether such bonuses are paid (or would have been paid
but for a bonus deferral election) in cash, in property, or in any
combination of cash and property (for the avoidance of doubt, Executive's
employment prior to the date of this Agreement may be used in calculating
Executive's average annual bonus); provided, however,
(c) neither the value of any stock option or restricted stock grants
made by Post to Executive in any calendar year, nor any income which
Executive realizes in any calendar year from the exercise of any such
stock options or the lapse of any restrictions on such restricted stock
grants, nor any payments under Post's Shareholder Value Plan shall be
treated as part of Executive's salary under Section 1.2(a), as part of
Executive's bonuses under Section 1.2(b), or otherwise be considered or
treated as Cash Compensation.
1.3. Cause. The term "Cause" for purposes of this Agreement shall (subject
to Section 1.3(d)) mean:
(a) Executive is convicted of, pleads guilty to, or confesses or
otherwise admits to the Post Parties or a Post Affiliate or a prosecutor,
or otherwise publicly admits, any felony or any act of fraud,
misappropriation, or embezzlement, or Executive engages in a fraudulent
act or course of conduct;
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(b) There is any material act or omission by Executive involving
malfeasance or negligence in the performance of Executive's duties to the
Post Parties or a Post Affiliate to the material detriment of the Post
Parties or such Post Affiliate; or
(c) Executive breaches in any material respect any of the covenants
set forth in Section 7, Section 8, Section 9 or Section 10 of this
Agreement; provided, however,
(d) No such act or omission or event shall be treated as "Cause"
under this Agreement unless (i) Executive has been provided a detailed,
written statement of the basis for Post's belief such act or omission or
event constitutes "Cause" and an opportunity to meet with the Compensation
Committee (together with Executive's counsel if Executive chooses to have
Executive's counsel present at such meeting) after Executive has had a
reasonable period in which to review such statement and, if the allegation
is under Section 1.3(b) or Section 1.3(c), has had at least a thirty (30)
day period to take corrective action, and (ii) tHe Compensation Committee
after such meeting (if Executive meets with the Compensation Committee)
and after the end of such thirty (30) day correction period (if
applicable) determines reasonably and in good faith and by the affirmative
vote of at least a majority of the members of the Compensation Committee
then in office at a meeting called and held for such purpose that "Cause"
does exist under this Agreement.
1.4. Change in Control. The term "Change in Control" for purposes of this
Agreement shall mean:
(a) 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 as in
effect on the date of this Agreement;
(b) 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;
(c) the individuals who at the beginning of any period of two (2)
consecutive years or less (starting on or after the date of this
Agreement) constitute Post's Board cease for any reason during such period
to constitute at least a majority of Post's Board, unless the election or
nomination for election of each new member of the Board was approved by
vote of at least two-thirds of the members of such Board then still in
office who were members of such Board at the beginning of such period;
(d) 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 identified
in Section 1.16(a) oF this Agreement 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
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(e) the shareholders of Post approve any reorganization, merger,
consolidation, or share exchange with another corporation unless (i) 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
(ii) the number of shares of the common stock of such successor or
survivor corporation beneficially owned by the persons described in
Section 1.4(e)(i) 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 (iii) the percentage described in Section 1.4(e)(i) of the
beneficially owned shares of the successor or survivor corporation and the
number described in Section 1.4(e)(ii) 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 1.4(e)(i) immediately before the
consummation of such transaction.
1.5. Code. The term "Code" for purposes of this Agreement shall mean the
Internal Revenue Code of 1986, as amended.
1.6. Compensation Committee. The term "Compensation Committee" for
purposes of this Agreement shall mean the Executive Compensation and Management
Development Committee of the Board, or any successor to such committee.
1.7. Confidential or Proprietary Information. The term "Confidential or
Proprietary Information" for purposes of this Agreement shall mean any secret,
confidential, or proprietary information of the Post Parties or a Post Affiliate
(not otherwise included in the definition of Trade Secret in Section 1.23 of
this Agreement) that has not become generally available to the public by the act
of one who has the right to disclose such information without violating any
right of the Post Parties or a Post Affiliate.
1.8. Disability. The term "Disability" for purposes of this Agreement
shall mean that Executive, as a result of a mental or physical condition or
illness affecting a major life activity, is unable to perform the essential
functions of Executive's job at the Post Parties for any consecutive 180-day
period, even with reasonable accommodation, all as reasonably determined by the
Compensation Committee.
1.9. Effective Date. The term "Effective Date" for purposes of this
Agreement shall mean either 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 (or otherwise publicly announced as
effective), if the Change in Control is made effective other than through a
transaction which has a "closing".
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1.10. Exchange Act. The term "Exchange Act" for purposes of this Agreement
shall mean the Securities Exchange Act of 1934, as amended.
1.11. Executive. The term "Executive" for purposes of this Agreement shall
mean Xxxxxxxxxxx X. Xxxx, a resident of the State of Georgia.
1.12. Good Reason.
(1) The term "Good Reason" for purposes of Section 6 of this Agreement
shall (subject to Section 1.12(1)(e)) mean:
(a) there is a reduction after a Change in Control, but before the
end of Executive's Protection Period, in Executive's salary payable
pursuant to Section 5.1 or there is a reduction after a Change in Control,
but before the end of Executive's Protection Period, in Executive's
eligibility to receive any bonuses pursuant to Section 5.2 or incentive
compensation pursuant to Section 5.3 or Section 5.4 substantially
different from the eligibility of other senior executives of the Post
Parties to receive such bonuses or incentive compensation, all without
Executive's express written consent; or
(b) there is a reduction after a Change in Control, but before the
end of Executive's Protection Period, in the scope, importance, or
prestige of Executive's duties, responsibilities, or authority (other than
as a result of a mere change in Executive's title, if such change in title
is consistent with the organizational structure of Post following such
Change in Control) without Executive's express written consent; or
(c) the Post Parties at any time after a Change in Control, but
before the end of Executive's Protection Period (without Executive's
express written consent), transfers Executive's primary work site from
Executive's primary work site on the date of such Change in Control or, if
Executive subsequently consents in writing to such a transfer under this
Agreement, from the primary work site that was the subject of such
consent, to a new primary work site that is more than 35 miles from
Executive's then current primary work site, unless such new primary work
site is closer to Executive's primary residence than Executive's then
current primary work site; or
(d) the Post Parties fail (without Executive's express written
consent) after a Change in Control, but before the end of Executive's
Protection Period, to continue to provide to Executive health and welfare
benefits, deferred compensation benefits, executive perquisites (other
than the use of a company airplane for personal purposes), and stock
option and restricted stock grants that are in the aggregate comparable in
value to those provided to Executive immediately prior to the Change in
Control Date; provided, however,
(e) No such act or omission shall be treated as "Good Reason" under
Section 1.12(1) unless:
(i) (A) Executive delivers to the Compensation Committee a
detailed, written statement of the basis for Executive's belief that
such act or omission constitutes Good Reason, (B) Executive delivers
such statement before the later of
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(1) the end of the ninety (90) day period that starts on the date
there is an act or omission which forms the basis for Executive's
belief that Good Reason exists, or (2) the end of the period
mutually agreed upon for purposes of this Section 1.12(1)(e)(i)(B)
in writing by Executive and the Chairman of the Compensation
Committee, (C) Executive gives the Compensation Committee a thirty
(30) day period after the delivery of such statement to cure the
basis for such belief, and (D) Executive actually submits
Executive's written resignation to the Compensation Committee during
the sixty (60) day period that begins immediately after the end of
such thirty (30) day period if Executive reasonably and in good
faith determines that Good Reason continues to exist after the end
of such thirty (30) day period, or
(ii) Post states in writing to Executive that Executive has
the right to treat any such act or omission as Good Reason under
this Agreement and Executive resigns during the sixty (60) day
period that starts on the date such statement is actually delivered
to Executive;
(f) If (A) Executive gives the Compensation Committee the statement
described in Section 1.12(1)(e)(i) before the end of the thirty (30) day
period that immediately follows the end of the Protection Period and
Executive thereafter resigns within the period described in Section
1.12(1)(e)(i), or (B) Post provides the statement to Executive described
in Section 1.12(1)(e)(ii) before the end of the thirty (30) day period
that immediately follows the end of the Protection Period and Executive
thereafter resigns within the period described in Section 1.12(1)(e)(ii),
then such resignation shall be treated under this Agreement as if made iN
Executive's Protection Period; and
(g) If Executive consents in writing to any reduction described in
Section 1.12(1)(a) or Section 1.12(1)(b), to any transfer described in
Section 1.12(1)(c) or to any failure described in Section 1.12(1)(d) in
lieu of exercising Executive's right to resign for Good Reason and
delivers such consent to Post, the date such consent is delivered to Post
thereafter shall be treated under this definition as the date of a Change
in Control for purposes of determining whether Executive subsequently has
Good Reason under this Agreement to resign under Section 6.1 or Section
6.3 as a result of any subsequent reduction described in Section
1.12(1)(a) or Section 1.12(1)(b), any subsequent transfer described in
Section 1.12(1)(c), or any subsequent failure described in Section
1.12(1)(d).
(2) The term "Good Reason" for purposes of Section 4 of this Agreement
shall (subject to Section 1.12(2)(d)) mean:
(a) Post changes Executive's eligibility for compensation and
benefits in a manner that results in Executive's compensation and benefits
being reduced five percent (5%) more than the reduction of other senior
Post executives' compensation and benefits; or
(b) there is a significant reduction in Executive's level of
responsibility or authority at Post (other than a mere change in
Executive's title) without Executive's express written consent; or
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(c) Post transfers Executive's primary work site from the
Executive's primary work site on the date of this Agreement or, if the
Executive subsequently consents in writing to such a transfer under this
Agreement, from the primary work site that was the subject of such
consent, to a new primary work site that is more than 35 miles from
Executive's then current primary work site, unless such new primary work
site is closer to Executive's primary residence than Executive's then
current primary work site or unless Executive provides his express written
consent; provided however,
(d) No such act or omission shall be treated as "Good Reason" under
Section 1.12(2) unless:
(i) (A) Executive delivers to the Compensation Committee a
detailed, written statement of the basis for Executive's belief that
such act or omission constitutes Good Reason, (B) Executive delivers
such statement before the later of (1) the end of the ninety (90)
day period that starts on the date there is an act or omission which
forms the basis for Executive's belief that Good Reason exists, or
(2) the end of the period mutually agreed upon for purposes of this
Section 1.12(2)(d)(i)(B) in writing by Executive and the Chairman of
the Compensation Committee, (C) Executive gives the Compensation
Committee a thirty (30) day period after the delivery of such
statement to cure the basis for such belief, and (D) Executive
actually submits Executive's written resignation to the Compensation
Committee during the sixty (60) day period that begins immediately
after the end of such thirty (30) day period if Executive reasonably
and in good faith determines that Good Reason continues to exist
after the end of such thirty (30) day period, or
(ii) Post states in writing to Executive that Executive has
the right to treat any such act or omission as Good Reason under
this Section 1.12 (2) and Executive resigns during the sixty (60)
day period that starts on the date such statement is actually
delivered to Executive.
1.13. Gross Up Payment. The term "Gross Up Payment" for purposes of this
Agreement shall mean a payment to or on behalf of Executive which shall be
sufficient to pay (a) any excise tax described in Section 13 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 additional taxes on
such payment and (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.
1.14. Multifamily Property. The term "Multifamily Property" for purposes
of this Agreement and any renewal of this Agreement shall mean any real property
on which an upscale multifamily residential-use development has been constructed
or is under construction as of the date of this or any renewal of this
Agreement.
1.15. Post. The term "Post" for purposes of this Agreement shall mean Post
Properties, Inc., a Georgia corporation, and any successor to Post.
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1.16. Post Affiliate. The term "Post Affiliate" for purposes of this
Agreement shall mean (a) Post GP Holdings and (b) any other organization if the
Post Parties or Post GP Holdings (i) beneficially own more than twenty percent
(20%) of the outstanding voting capital stock of such organization (if such
organization is a corporation) or more than twenty percent (20%) of the
beneficial interests of such organization (if such organization is not a
corporation) as of the date of this Agreement and (ii) possess the power to
direct or cause the direction of the day to day operations and affairs of such
organization, whether through ownership of voting securities, by contract, in
the capacity of general partner, manager or managing member or otherwise as of
the date of this Agreement.
1.17. Post Apartment Homes. The term "Post Apartment Homes" shall mean
Post Apartment Homes, L.P., a Georgia limited partnership, and any successor to
Post Apartment Homes.
1.18. Post GP Holdings. The term "Post GP Holdings" shall mean Post GP
Holdings, Inc., a Georgia corporation, and any successor to Post GP Holdings.
1.19. Post Parties. The term "Post Parties" shall mean Post, Post
Apartment Homes and Post Services.
1.20. Post Services, Inc. The term "Post Services" shall mean Post
Services, Inc., a Georgia corporation, and any successor to Post Services.
1.21. Protection Period. The term "Protection Period" for purposes of this
Agreement shall (subject to Section 1.12(1)(f)) mean the three (3) year period
which begins on the Effective Date for a Change in Control.
1.22. Restricted Period. The term "Restricted Period" for purposes of this
Agreement shall mean the period which starts on the date Executive's employment
by the Post Parties terminates for any reason or no reason and which ends (i) on
the first anniversary of such termination date for purposes of Section 9 and
Section 10 and (ii) on the second anniversary of such termination date for
purposes of Section 7 and Section 8.
1.23. Trade Secret. The term "Trade Secret" for purposes of this Agreement
shall mean information in the possession of the Post Parties or a Post
Affiliate, including, but not limited to, technical or nontechnical data, a
formula, a pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, or a list of
actual or potential customers or suppliers that:
(a) derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from its disclosure or
use, and
(b) is the subject of reasonable efforts by the Post Parties or a
Post Affiliate to maintain its secrecy.
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SECTION 2. EMPLOYMENT.
Subject to the terms of this Agreement, the Post Parties hereby employ
Executive, and Executive hereby accepts such employment with the Post Parties.
Executive shall initially serve as the Executive Vice President and Chief
Financial Officer and initially shall have the duties, rights, and
responsibilities normally associated with such positions, including oversight
over all of the Company's accounting, reporting, budgeting, financing, and
investor relations, as well as such other comparable duties as assigned by the
Post Parties. Executive shall devote his full business time, skills, and best
efforts to rendering services on behalf of the Post Parties and shall exercise
such care as is customarily required by executives undertaking similar duties
for entities similar to the Post Parties.
SECTION 3. TERM.
Unless earlier terminated in accordance with Section 4, the employment of
Executive under this Agreement shall commence as of the date of this Agreement
and shall continue up to, but not including, the first anniversary of such date;
provided, however, that, unless the Board or Executive decides otherwise, and
notifies the other party of that decision in writing before an anniversary of
the date of this Agreement, this Agreement shall renew on the first anniversary
of each successive anniversary of the date of this Agreement.
SECTION 4. TERMINATION.
The Post Parties may terminate this Agreement at any time; provided, that
if termination is without Cause or Executive resigns for Good Reason, the Post
Parties shall continue to pay Executive pursuant to Post's standard payroll
practices his base salary under Section 5.1 as if he were still employed for a
period of eighteen (18) months. In addition, if termination is without Cause or
Executive resigns for Good Reason, the Post Parties shall pay Executive within
30 days of the date of termination (a) a pro rata portion of the earned but
unpaid bonus which he would be eligible to receive under Section 5.2 for the
days that Executive had already worked during the calendar year in which he is
terminated and (b) the bonus which he would be eligible to receive under Section
5.2 were he to remain employed for a period of eighteen (18) months which shall
be equal to the annual bonus (calculated pursuant to the following sentence)
multiplied by 1.5. For the calendar year (or portion thereof) in which Executive
is terminated and for each year (or portion thereof) in the eighteen (18) month
period following Executive's termination, the amount of annual bonus to be paid
pursuant to the preceding sentence shall be equal to the average annual bonuses
for the past three (3) consecutive year period calculated pursuant to Section
1.2(b) hereof. In addition, if termination is without Cause or Executive resigns
for Good Reason, the Post Parties shall, to the extent permitted, continue to
provide to Executive for a period of eighteen (18) months the same coverage and
benefits as Executive was provided under the Post Parties' benefit plans
pursuant to Section 5.9 of this Agreement on the day before Executive's
employment terminated. If the Post Parties cannot provide such coverage and
benefits under the Post Parties' employee benefit plans, the Post Parties shall
either provide such coverage and benefits to Executive outside such plans at no
additional expense or tax liability to Executive or shall reimburse Executive
for Executive's cost to purchase such coverage and benefits and for any tax
liability for such reimbursements. In addition, notwithstanding anything
contained herein to the contrary, in the
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event that Executive is terminated without Cause or resigns for Good Reason, (1)
each outstanding stock option granted to Executive by Post shall become
exercisable immediately before his termination of employment to the full extent
the option would have become exercisable if Executive had remained employed by
the Post Parties for a period of eighteen (18) months from the date Executive's
employment terminates, and each option shall remain exercisable until the
earlier of (a) the expiration of the term of the option or (b) the date the
option would have expired if Executive's employment had terminated at the end of
the term of this Agreement (as determined immediately prior to the date
Executive's employment terminates) without Cause or for Good Reason; (2)
Executive, immediately before his termination of employment, shall vest in any
outstanding restricted stock granted by Post to the full extent Executive would
have vested in the restricted stock had Executive remained employed by the Post
Parties for a period of eighteen (18) months; and (3) Executive shall have the
right to receive the bonus or bonuses, if any, that Executive would have been
entitled to receive under the Shareholder Value Plan if Executive had remained
employed by the Post Parties for a period of eighteen (18) months.
Notwithstanding anything contained herein to the contrary, Executive further
agrees that termination for Cause shall result in the immediate termination and
forfeiture of all rights to compensation and benefits, including any options to
purchase Post stock which have not vested, as provided herein.
SECTION 5. COMPENSATION.
5.1. Base Salary. Commencing on the date of this Agreement, the Executive
shall be paid during the term of Executive's employment under this Agreement, an
annual base salary of $300,000, less required deductions. The Compensation
Committee shall review Executive's base salary on an annual basis, and the
Compensation Committee, upon such review and in its sole discretion, may
increase or decrease Executive's base salary by an amount that the Compensation
Committee deems appropriate in light of Post's and Executive's performance
during the period covered by such review; provided, however, that Executive's
base salary shall not be reduced below $300,000 per annum. Executive's base
salary, less any required deductions, shall be paid to Executive in accordance
with Post's standard payroll practices and procedures for executive officers but
shall be apportioned between and actually be paid on Post's payroll, Post
Apartment Homes' payroll and Post Services' payroll as agreed upon from time to
time by Post, Post Apartment Homes and Post Services.
5.2. Bonus. In addition to the annual base salary, Executive shall be
eligible to receive an annual bonus, provided that certain personal and
corporate goals to be established by the Compensation Committee are met or
exceeded. In the event that Executive is paid a bonus under this Section 5.2 for
any period of time less than one (1) year, Executive's bonus shall be a pro rata
share of the annual bonus. For the avoidance of doubt, the annual bonus may be
apportioned between and actually paid on the payrolls of the various Post
Parties.
5.3. Incentive Compensation. In addition to the annual base salary and
bonus awarded under Section 5.1 and Section 5.2, Executive shall receive an
option to purchase shares of Post's common stock each year in a number and at a
price to be determined by the Compensation Committee. Unless decided otherwise
by the Compensation Committee in a manner consistent with Post's
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practice with respect to other senior Post executives, any options awarded
pursuant to Section 5.3 shall vest over a three (3) year period in the following
manner:
One year after options granted: 33% of options vest
Two years after options granted: 33% of options vest
Three years after options granted: 34% of options vest.
In the event Executive is granted an option for any period of time less than one
(1) year, Executive shall receive a pro rata share of the annual option grant.
For the avoidance of doubt, the incentive compensation may be apportioned
between and actually paid on the payrolls of the various Post Parties.
5.4. Restricted Stock Awards and Shareholder Value Plan. In addition to
any other compensation provided in Sections 5.1, 5.2 and 5.3 of this Agreement,
Executive shall be eligible during the term of this Agreement to receive an
annual award of Restricted Stock and a Target Bonus under the Shareholder Value
Plan (the "Plan"). The terms and conditions of any award under this section
shall be determined by the Compensation Committee.
5.5. Automobile Allowance. In addition to any other compensation provided
in Sections 5.1, 5.2, 5.3, and 5.4 of this Agreement, Executive shall receive an
annual automobile allowance of $7,200.00 (Seven Thousand Two Hundred Dollars).
Executive shall have complete discretion with respect to the expenditure of the
Automobile Allowance.
5.6. Comparison with Other REITs. At regular intervals the Post Parties
shall continue to retain Compensation Consultants to assure that the total
compensation paid to Executive is comparable to that being paid to executives at
comparable Apartment REITs, and/or other REITs of a similar size, all as
determined by the Compensation Committee.
5.7. Expenses. Executive shall be reimbursed for all reasonable
business-related expenses incurred by Executive at the request of or on behalf
of the Post Parties, including, without limitation, first class travel expenses
incurred in connection with the performance of Executive's duties and
responsibilities hereunder.
5.8. Vacation. In addition to the Post Parties' holidays, Executive shall
be eligible to take up to four (4) weeks (20 business days) of vacation during
each calendar year. Vacation days not taken in the year granted are forfeited,
and Executive will not receive pay in lieu of vacation.
5.9. Benefit Plans. Executive shall be entitled to participate in such
medical, dental, disability, hospitalization, life insurance and other employee
benefit plans as are maintained by the Post Parties for the benefit of senior
executive officers.
SECTION 6. CHANGE IN CONTROL.
6.1. General Rule.
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(a) If there is a Change in Control and either (i) the Post Parties during
Executive's Protection Period terminate Executive's employment without Cause,
(ii) Executive during Executive's Protection Period resigns for Good Reason, or
(iii) Executive resigns for any or no reason whatsoever at any time during the
ninety (90) day period that starts on the first anniversary of the Effective
Date, then the Post Parties shall pay Executive three (3) times Executive's then
Cash Compensation in cash in a lump sum within thirty (30) days after the date
Executive's employment so terminates (for the avoidance of doubt, the lump sum
cash payment may be apportioned between and actually paid on the payrolls of the
various Post Parties);
(b) (i) Each outstanding stock option granted to Executive by Post shall
(notwithstanding the terms under which such option was granted) become fully
vested and exercisable on the date Executive's employment so terminates and
shall (notwithstanding the terms under which such option was granted) remain
exercisable for the remaining term of each such option (as determined as if
there had been no such termination of Executive's employment), subject to the
same terms and conditions as if Executive had remained employed by the Post
Parties or a Post Affiliate for such term or such period (other than any term or
condition which gives Post the right to cancel any such option) and (ii) any
restrictions on any outstanding restricted stock grants to Executive by Post
immediately shall (notwithstanding the terms under which such grant was made)
expire and Executive's right to such stock shall be non-forfeitable; and
(c) From the date of such termination of Executive's employment until the
end of Executive's Protection Period, the Post Parties shall continue to provide
to Executive (i) the same coverage and benefits as Executive was provided under
the Post Parties' employee benefit plans pursuant to Section 5.9 of this
Agreement on the day before Executive's employment terminated or, at Executive's
election, on any date in the one (1) year period which ends on the date of such
termination of employment and (ii) the same executive perquisites (other than
use of a company airplane for personal purposes) as Executive enjoyed on the day
before Executive's employment terminated or, at Executive's election, on any
date in the one (1) year period which ends on the date of such termination;
provided, however, if the Post Parties cannot provide such coverage and benefits
under the Post Parties' employee benefit plans, the Post Parties either shall
provide such coverage and benefits to Executive outside such plans at no
additional expense or tax liability to Executive or shall reimburse Executive
for Executive's cost to purchase such coverage and benefits and for any tax
liability for such reimbursements.
(d) If Employee is entitled to and accepts benefits under Section 6 of
this Agreement, Employee shall not be entitled to and shall not receive any
benefits under Section 4 of this Agreement.
6.2. No Increase in Other Benefits.
If Executive's employment terminates under the circumstances described in
Section 6.1 or Section 6.3, Executive expressly waives Executive's right, if
any, to have any payment made under Section 6.1 taken into account to increase
the benefits otherwise payable to, or on behalf of, Executive under any employee
benefit plan, whether qualified or unqualified, maintained by the Post Parties
or a Post Affiliate.
12
6.3. Termination in Anticipation of a Change in Control.
Executive shall be treated under this Section 6 as if Executive's
employment had been terminated without Cause or Executive had resigned for Good
Reason during Executive's Protection Period if:
(a) Executive's employment is terminated by the Post Parties without
Cause or Executive resigns for Good Reason,
(b) such termination is effected or such resignation is effective at
any time in the sixty (60) day period which ends on the Effective Date of
a Change In Control, and
(c) there is an Effective Date for such Change In Control.
6.4. Death or Disability.
Executive agrees that the Post Parties will have no obligation to
Executive or his estate under this Section 6 if Executive's employment
terminates exclusively as a result of Executive's death or a Disability.
SECTION 7. NO SOLICITATION OF CUSTOMERS.
Executive will not, during the Restricted Period, for purposes of
competing with any of the Post Parties or any Post Affiliate, solicit on
Executive's own behalf or on behalf of any other person, firm, or corporation
which engages, directly or indirectly, in the development, operation,
management, leasing or landscaping of a Multifamily Property, any customer of
the Post Parties or any customer of a Post Affiliate with whom Executive had a
personal business interaction at any time during the two (2) years immediately
prior to the termination of Executive's employment by the Post Parties. Section
7 shall not prohibit a general solicitation not targeted at the Post Parties'
customers or a Post Affiliate's customers and in which Executive has no
participation or involvement.
SECTION 8. ANTIPIRATING OF EMPLOYEES.
Executive will not during the Restricted Period employ or seek to employ
on Executive's own behalf or on behalf of any other person, firm or corporation
that engages, directly or indirectly, in the development, operation, management,
leasing, or landscaping of a Multifamily Property, any person who was employed
by the any of the Post Parties or any Post Affiliate in an executive,
managerial, or supervisory capacity during the term of Executive's employment by
the Post Parties and with whom Executive had business dealings during the two
(2) year period which ends on the date Executive's employment by the Post
Parties terminates (whether or not such employee would commit a breach of
contract), and who has not ceased to be employed by the Post Parties or any Post
Affiliate for a period of at least one (1) year. Section 8 shall not prohibit a
general solicitation not targeted at the Post Parties' employees and in which
Executive has no participation or involvement.
13
SECTION 9. TRADE SECRETS AND CONFIDENTIAL OR PROPRIETARY INFORMATION.
Executive hereby agrees to hold in a fiduciary capacity for the benefit of
each of the Post Parties and each Post Affiliate, and will not directly or
indirectly use or disclose, any Trade Secret that Executive may have acquired
during the term of Executive's employment by the Post Parties for so long as
such information remains a Trade Secret even if such information remains a Trade
Secret after the expiration of the Restricted Period.
In addition, Executive agrees during the Restricted Period to hold in a
fiduciary capacity for the benefit of each of the Post Parties and each Post
Affiliate, and not to directly or indirectly use or disclose, any Confidential
or Proprietary Information that Executive may have acquired (whether or not
developed or compiled by Executive and whether or not Executive was authorized
to have access to such information) during the term of, in the course of, or as
a result of Executive's employment by the Post Parties.
SECTION 10. COVENANT NOT TO COMPETE.
During the Restricted Period, Executive shall not serve as an employee,
independent contractor, or otherwise render any advice or services similar to
those listed in Section 2 of this Agreement, directly or indirectly, to any
person, firm, entity or corporation listed on Appendix A of this Agreement with
respect to its operations in markets where the Post Parties or a Post Affiliate
is currently engaged in business. Executive agrees that the entities listed on
Appendix A are the Post Parties' principal competitors in the markets where the
Post Parties are currently engaged in business. Executive further agrees that
Executive and the Post Parties will, in return for additional consideration,
agree to update Appendix A in connection with the annual renewal of this
Agreement in order to fairly include only the Post Parties' principal
competitors.
SECTION 11. REASONABLE AND NECESSARY RESTRICTIONS.
Executive acknowledges that the restrictions, prohibitions, and other
provisions set forth in this Agreement, including without limitation the
Restricted Period and those set forth in Sections 7, 8, 9, and 10, are
reasonable, fair and equitable in scope, terms, and duration; are necessary to
protect the legitimate business interests of the Post Parties; and are a
material inducement to the Post Parties to enter into this Agreement. Executive
covenants that Executive will not challenge the enforceability of this Agreement
nor will Executive raise any equitable defense to its enforcement.
SECTION 12. SPECIFIC PERFORMANCE.
Executive acknowledges that the obligations undertaken by him pursuant to
this Agreement are unique and that the Post Parties likely will have no adequate
remedy at law if Executive shall fail to perform any of Executive's obligations
under this Agreement, and Executive therefore confirms that the Post Parties'
right to specific performance of the terms of this Agreement is essential to
protect the rights and interests of the Post Parties. Accordingly, in addition
to any other remedies that the Post Parties may have at law or in equity, the
Post Parties will have the right to have all obligations, covenants, agreements,
and other provisions of this
14
Agreement specifically performed by Executive, and the Post Parties will have
the right to obtain preliminary and permanent injunctive relief to secure
specific performance and to prevent a breach or contemplated breach of this
Agreement by Executive, and Executive submits to the jurisdiction of the courts
of the State of Georgia for this purpose.
SECTION 13. TAX PROTECTION.
If Post or Post's independent accountants (which shall consider such issue
upon the reasonable request of the Executive) determine that any payments and
benefits called for under this Agreement, together with any other payments and
benefits made available to Executive by the Post Parties or a Post Affiliate,
will result in Executive's being subject to an excise tax under Section 4999 of
the Code 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 13) 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 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 13 shall be made in
accordance with Section 280G of the Code 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 13) 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.
SECTION 14. MISCELLANEOUS.
14.1. Binding Effect. This Agreement shall inure to the benefit of and
shall be binding upon Executive and his executor, administrator, heirs, personal
representatives and assigns, and Post and its 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.
14.2. 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
15
court or other governmental or judicial authority, including an arbitrator, by
reason of such party having or being deemed to have structured or drafted such
provision.
14.3. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
14.4. 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.
14.5. Headings. The paragraph and 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.
14.6. 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) If to Executive:
Xx. Xxxxxxxxxxx X. Xxxx
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
(b) If to Post, Post Apartment Homes or Post Services:
Post Properties, Inc.
One Riverside
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Corporate Secretary
with a copy to:
Xxxx X. Xxxxxx III
King & Spalding LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
14.7. 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.
16
14.8. 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 or oral,
including the Original Employment Agreement and the change in control agreement
dated December 9, 2003 between the Executive and Post, 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 of the parties hereto.
14.9. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
14.10. No Waiver. No waiver by Post or Executive of any breach by any
other party to this Agreement of any condition or provision contained in this
Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by Executive or an
authorized officer of Post, as the case may be.
14.11. Reference; Non-Disparagement. In the event of Executive's
termination without Cause or resignation for Good Reason, Post agrees to provide
Executive with a reference. Post agrees not to disparage or demean Executive,
publicly or otherwise. Executive also agrees not to disparage or demean any of
the Post Parties, or any Post Affiliates, or any of their officers or directors
or shareholders, publicly or otherwise.
17
IN WITNESS WHEREOF, the Post Parties and Executive have executed this
Agreement as of the date first written above.
POST PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
POST APARTMENT HOMES, LP
By: Post GP Holdings, Inc., its general partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
POST SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
EXECUTIVE
/s/ Xxxxxxxxxxx X. Xxxx
--------------------------------------------
Xxxxxxxxxxx X. Xxxx
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APPENDIX A
AMLI Residential Properties Trust
Apartment Investment and Management Company (AIMCO)
Archstone-Xxxxx
Associated Estates Realty Corporation
Avalon Bay Communities, Inc.
BRE Properties, Inc.
Camden Property Trust
Equity Residential
Essex Property Trust, Inc.
Fairfield Properties, L.P.
Gables Residential Trust
Xxxxxx X. Xxxxxx Company Inc.
Home Properties, Inc.
JPI
Xxxxxx XxXxxx & Co., Inc.
Lane Company
Lincoln Property Company
Mid-America Apartment Communities, Inc.
The Finger Companies
The Hanover Company
The Town and Country Trust
Xxxxxxxx Xxxx Residential
United Dominion Realty Trust
Wood Partners, LLC
