AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT
Exhibit 10.16
EXECUTION VERSION
1X FORM
1X FORM
The Post Group, as defined below, intends to enter into this form of change in control agreement
with four employees, none of whom are executive officers within the meaning of the Securities
Exchange Act of 1934.
AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT
THIS AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT (the “Agreement”) is made and entered
into on this ___day of ___, 2008, by and among ___(the “Executive”), and POST
PROPERTIES, INC., POST APARTMENT HOMES, L.P., and POST SERVICES, INC., and amends, restates and
supersedes the Change in Control Agreement among Executive and Post Properties, Inc., dated March
19, 2004 (the “2004 Agreement”).
WITNESSETH
WHEREAS, the Post Group and Executive desire collectively to amend and restate the 2004
Agreement in the form of this Agreement to (among other things) take into account § 409A of the
Code;
WHEREAS, Executive currently is individually and/or collectively employed by the Post Group as
a senior executive; and
WHEREAS, the Post Group desires to continue to retain Executive’s services, trust, confidence
and complete and undivided attention if there is any speculation regarding a Change in Control of
Post;
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth in this
Agreement and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Post Group and Executive, intending to be legally bound, hereby agree as
follows:
§ 1. Definitions.
1.1 Affiliate. The term “Affiliate” for purposes of this Agreement shall mean (a)
Post Apartment Homes, (b) Post Services, (c) Post GP Holdings (d) any other organization if Post,
Post Apartment Homes, Post Services 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.
1.2. Board. The term “Board” for purposes of this Agreement shall mean the Board of
Directors of Post.
1.3 Cash Compensation. The term “Cash Compensation” for purposes of this Agreement
shall mean the sum of
(a) Executive’s annual base salary (as determined without regard to any salary deferral
election) from the Post Group in effect on the day before Executive’s employment terminates
under § 3(a)(1) or, if greater, Executive’s average annualized annual base salary (as
determined without regard to any salary deferral election) from the Post Group over the two
(2) consecutive year period (or, if less, Executive’s period of employment by the Post
Group) which ends on the date that Executive’s employment so terminates, and
(b) the average annual bonuses which have been paid by the Post Group (whether paid at
the discretion of the Post Group or pursuant to the terms of any plan or program) or which
would have been paid but for a bonus deferral election with respect to Executive’s
performance over the two (2) consecutive year period (or, if less, Executive’s period of
employment by the Post Group) which ends on the date that Executive’s employment so
terminates whether (i) 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 or (ii)
such bonuses are paid during the calendar year for which performance is measured or are paid
subsequent to the end of the calendar year for which performance is measured; provided,
however,
(c) neither the value of any stock option or restricted stock grants made 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 shall be treated as part of Executive’s salary under § 1.3(a) or as part of
Executive’s bonuses under § 1.3(b).
1.4 Cause. The term “Cause” for purposes of this Agreement shall (subject to §
1.4(d)) mean:
(a) Executive is convicted of, pleads guilty to, or confesses or otherwise admits to a
member of the Post Group, a prosecutor, or otherwise publicly admits, any felony or any act
of fraud, misappropriation, or embezzlement, or Executive otherwise 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 gross
negligence in the performance of Executive’s duties to a member of the Post Group to the
material detriment of the Post Group; or
(c) Executive breaches in any material respect any of the covenants set forth in § 4, §
5, or § 6 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 the
Post Group’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 § 1.4(b) or §
1.4(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 two-thirds
(2/3) 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.
1.5 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
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 forty-five percent (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 the Board cease for any
reason during such period to constitute at least a majority of the Board, unless the
election or nomination for election of each new member of the Board was approved by vote of
at least two-thirds (2/3) 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,
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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 an Affiliate identified in §1.1(a), (b) or (c) of this Agreement or a
wholly-owned subsidiary of Post), or any dissolution or liquidation of Post, or any sale or
the disposition of fifty percent (50%) or more of the assets or business of Post; or
(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 sixty percent (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 § 1.5(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, however (iii) the percentage described in §
1.5(e)(i) of the beneficially owned shares of the successor or survivor corporation and the
number described in § 1.5(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 § 1.5(e)(i) immediately before the
consummation of such transaction.
1.6 Code. The term “Code” for purposes of this Agreement shall mean the Internal
Revenue Code of 1986, as amended.
1.7 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 of such committee or, if there is no such successor, the Board.
1.8 Confidential or Proprietary Information. The term “Confidential or Proprietary
Information” for purposes of this Agreement shall mean any secret, confidential, or proprietary
information of Post or any Affiliate (not otherwise included in the definition of Trade Secret in §
1.27 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 Post or any Affiliate.
1.9 Delayed Payment Date. The term “Delayed Payment Date” for purposes of this
Agreement shall mean the date which is six (6) months and one (1) day after the date that Executive
has a Separation from Service.
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1.10 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 Group for any
consecutive 180-day period, even with reasonable accommodation, all as reasonably determined by the
Compensation Committee.
1.11 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”.
1.12 Exchange Act. The term “Exchange Act” for purposes of this Agreement shall mean
the Securities Exchange Act of 1934, as amended.
1.13 Good Reason.
(1) The term “Good Reason” for purposes of this Agreement shall (subject to § 1.13(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 base salary from the Post Group 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 incentive compensation or bonuses from the Post Group, all
without Executive’s express written consent;
(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 a mere change in Executive’s title, if such
change in title is consistent with the organizational structure of the Post Group following
such Change in Control) without Executive’s express written consent;
(c) at any time after a Change in Control, but before the end of Executive’s Protection
Period (without Executive’s express written consent), there is a transfer of 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 thirty-five (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
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(d) there is a failure (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 § 1.13(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 (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 § 1.13(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) the Post Group 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 §
1.13(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 §
1.13(1)(e)(i), or (B) the Post Group provides the statement to Executive described in §
1.13(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 §
1.13(1)(e)(ii), then (C) 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 § 1.13(1)(a) or §
1.13(1)(b), to any transfer described in § 1.13(1)(c) or to any
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failure described in § 1.13(1)(d) in lieu of exercising Executive’s right to resign for
Good Reason and delivers such consent to the Post Group, the date such consent is delivered
to the Post Group 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 § 2.1 or § 2.3 as a result of any subsequent reduction
described in § 1.13(1)(a) or § 1.13(1)(b), any subsequent transfer described in §
1.13(1)(c), or any subsequent failure described in § 1.13(1)(d).
1.14 Gross Up Payment. The term “Gross Up Payment” for purposes of this Agreement
shall mean a payment by the Post Group to or on behalf of Executive which shall be sufficient to
pay in full (a) any excise tax described in § 9 in full, (b) all federal, state and local income
taxes (other than a tax under § 409A of the Code) and social security and other employment taxes on
the payment made to pay such excise tax plus any additional excise taxes, income taxes (other than
a tax under § 409A of the Code) and social security and other employment taxes resulting from such
payment and from all of the additional payments called for in this § 1.14(b) and in § 1.14(c) and
(c) any interest or penalties assessed by the Internal Revenue Service on Executive which are
related to the payment of such taxes unless such interest or penalties are attributable to
Executive’s willful misconduct or gross negligence.
1.15 Group Health Plan. The term “Group Health Plan” for purposes of this Agreement
shall mean the group health plan maintained by any member of the Post Group for the purpose of
providing medical, dental and vision benefits for the employees of the Post Group and any
Affiliates.
1.16 Interest. The term “Interest” for purposes of this Agreement shall mean interest
for the period between Executive’s Separation from Service and Executive’s Delayed Payment Date at
the three (3) month LIBOR rate (using the three (3) month LIBOR rate published in The Wall Street
Journal on the date of Executive’s Separation from Service) plus 100 basis points, compounded
monthly.
1.17 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.
1.18 Post. The term “Post” for purposes of this Agreement shall mean Post Properties,
Inc., a Georgia corporation, and any successor to Post.
1.19 Post Apartment Homes. The term “Post Apartment Homes” for purposes of this
Agreement shall mean Post Apartment Homes, L.P., a Georgia limited partnership, and any successor
to Post Apartment Homes.
1.20 Post GP Holdings. The term “Post GP Holdings” for purposes of this
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Agreement shall mean Post GP Holdings, Inc., a Georgia, corporation, and any successor to Post GP
Holdings.
1.21. Post Group. The term “Post Group” for purposes of this Agreement shall mean,
individually and collectively, Post, Post Apartment Homes and Post Services.
1.22 Post Services. The term “Post Services” for purposes of this Agreement shall
mean Post Services, Inc., a Georgia corporation, and any successor to Post Services.
1.23 Protection Period. The term “Protection Period” for purposes of this Agreement
shall (subject to § 1.13(1)(g)) mean the two (2) year period which begins on the Effective Date.
1.24 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 Group terminates
under circumstances which create an obligation for the Post Group under § 3 of this Agreement and
which ends (a) on the first anniversary of such termination date or (b) on the first date following
such a termination on which the Post Group breaches any obligation to Executive under § 3 of this
Agreement, whichever period is shorter.
1.25 Separation from Service. The term “Separation from Service” for purposes of this
Agreement shall mean a “separation from service” within the meaning of § 409A of the Code and the
related income tax regulations.
1.26 Specified Employee. The term “Specified Employee” for purposes of this Agreement
shall mean a “specified employee” within the meaning of § 409A of the Code and the related income
tax regulations.
1.27 Trade Secret. The term “Trade Secret” for purposes of this Agreement shall mean
information, 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 Post or an Affiliate to maintain its
secrecy.
§ 2. Term.
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2.1 Initial Term. Subject to § 2.2, the term of this Agreement which began under the
2004 Agreement on March 19, 2004 (the “Start Date”) with a three (3) year term shall (subject to §
2.3 and § 3) continue under this Agreement up to, but not including, March 19, 2010.
2.2 Automatic Renewals. Unless a member of the Post Group decides otherwise, and
notifies the Executive of that decision in writing at least 180 days before an anniversary of the
Start Date, the three (3) year term of this Agreement shall (subject to § 2.3 and § 3) renew on
each successive anniversary of the Start Date so that the term of Executive’s employment under this
Agreement shall never be less than two (2) years nor more than three (3) years.
2.3 Special Rules. If Executive’s Protection Period begins before the term of this
Agreement expires, this Agreement shall continue (notwithstanding § 2.2) in effect through the end
of Executive’s Protection Period and, if Executive has a right to any compensation or benefits
under § 3 before the term of this Agreement expires, the term of this Agreement shall continue
until Executive agrees that all of the Post Group’s obligations to Executive under this Agreement
have been satisfied in full or a court of competent jurisdiction makes a final determination that
the Post Group has no further obligations to Executive under this Agreement, whichever comes first.
§ 3. Compensation and Benefits.
3.1 General Rule. If there is a Change in Control and any member of the Post Group
during Executive’s Protection Period terminates Executive’s employment without Cause or Executive
during Executive’s Protection Period resigns for Good Reason, then:
(a) The Post Group shall pay Executive one (1) times Executive’s then Cash Compensation
in cash in a lump sum at his Separation from Service; provided, however, if Executive is a
Specified Employee at Executive’s Separation from Service, such payment shall be delayed and
paid with Interest on his Delayed Payment Date; and
(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 of Executive’s Separation from Service 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 Separation from Service)
subject to the same terms and conditions as if Executive had remained employed by the Post
Group for such term (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
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non-forfeitable; and
(c) The Post Group shall provide or make available health care coverage and shall
provide reimbursement for life insurance and long-term disability premiums as follows:
(i) During the period starting on the date of Executive’s Separation from
Service and ending on the earlier of (A) the last day of the one (1) year period
following Executive’s Separation from Service (the “1 Year Period”) or (B) the date
when Executive is no longer entitled to continued coverage under § 4980B of the Code
(the “COBRA Period”), the Post Group shall provide continued coverage under the
Group Health plan pursuant to § 4980B of the Code (“COBRA Coverage”) and reimburse
Executive for a portion of the monthly premiums paid by Executive for such COBRA
Coverage,
(ii) If the period described in § 3.1(c)(i) ends at the end of the COBRA
Period, the Post Group for the remainder (if any) of the 1 Year Period shall provide
Executive (1) continued coverage under the Group Health Plan or (2) if coverage for
Executive is not available under the Group Health Plan, health insurance coverage
from an insurance company selected by Executive and reimburse Executive for a
portion of the monthly premiums paid by Executive for either form of coverage,
(iii) If so requested by Executive in writing before the end of the coverage
period described in either § 3.1(c)(i) or § 3.1(c)(ii), whichever is applicable, the
Post Group will make available to Executive continued coverage under the Group
Health Plan for up to an additional eighteen (18) months following the end of such
coverage period to the extent Executive had such coverage under the Group Health
Plan at the end of such coverage period and timely pays the monthly premium then
paid by former employees for comparable COBRA Coverage,
(iv) The reimbursable portion of the premiums paid by Executive each month
under § 3.1(c)(i) and § 3.1(c)(ii) shall equal the dollar amount the Post Group
would have paid on Executive’s behalf each month for the coverage which had been in
effect immediately before Executive’s Separation from Service under the Group Health
Plan had Executive remained employed by the Post Group for the remainder of the 1
Year Period. For the avoidance of doubt, the Post Group will not be responsible for
any reimbursement during the period described in § 3.1(c)(iii),
(v) The Post Group shall reimburse Executive during the 1 Year Period for a
portion of Executive’s monthly premiums to purchase life
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insurance coverage and long-term disability coverage which is no less than the face
amount of Executive’s life insurance coverage and long-term disability coverage in
effect immediately before Executive’s Separation from Service, and the reimbursable
portion each month shall equal the dollar amount the Post Group would have paid in
premiums on Executive’s behalf each month for the life insurance coverage and
long-term disability coverage under the policies which had been in effect
immediately before Executive’s Separation from Service had Executive remained
employed by the Post Group for the remainder of the 1 Year Period,
(vi) The reimbursements called for under this § 3.1(c) shall be requested by
Executive and processed and made by the Post Group in accordance with the policies
and procedures in effect from time to time under the Post Group’s standard expense
reimbursement policy for the Post Group’s senior executives as provided to
Executive, but no cost or expense shall be reimbursable under this § 3.1(c) after
the end of the calendar year immediately following the calendar year in which
Executive incurs such cost or expense even if reimbursement was permissible at a
later date under such policy, and
(vii) The Post Group shall add to each reimbursement made pursuant to this §
3.1(c) an amount which the Post Group acting in good faith reasonably determines
would be sufficient for Executive to pay his income and employment tax due on such
reimbursement if Executive was subject to the maximum marginal tax rates; provided,
however, if Executive is a Specified Employee at his Separation from Service, no
such additional payments shall be made until the Delayed Payment Date, and the Post
Group on the Delayed Payment Date shall make a lump sum payment in cash with
Interest to Executive which the Post Group acting in good faith reasonably
determines would be sufficient for Executive to pay his income and employment tax
due on all of the reimbursements made before such date pursuant to this § 3.1(c) if
Executive was subject to the maximum marginal tax rates.
3.2 No Increase In Other Benefits.
If Executive’s employment terminates under the circumstances described in § 3.1(a) or § 3.3,
Executive expressly waives Executive’s right, if any, to have any payment made under § 3.1 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 Group.
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3.3 Termination In Anticipation Of A Change In Control.
Executive shall be treated under § 3.1 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 a member of the Post Group 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.
3.4 Termination as a result of Death or Disability.
Executive agrees that no member of the Post Group will have any obligation to Executive under
this § 3 if Executive’s employment terminates exclusively as a result of Executive’s death or a
Disability.
§ 4. No Solicitation Of Customers.
Executive will not, during the Restricted Period, for purposes of competing with Post or any
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 Post or any 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 any member of the Post Group. This § 4 shall not prohibit
a general solicitation not targeted at Post’s or an Affiliate’s customers and in which Executive
has no participation or involvement.
§ 5. 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 a member of the Post Group in an executive, managerial, or supervisory
capacity during the term of Executive’s employment by a member of the Post Group and with whom
Executive had business dealings during the two (2) year period which ends on the date Executive’s
employment by any member of the Post Group terminates (whether or not such employee would commit a
breach of contract), and who has not ceased to be employed by a member of the Post Group for a
period of at least one (1) year. This § 5 shall not
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prohibit a general solicitation not targeted at employees of Post or an Affiliate and in which
Executive has no participation or involvement.
§ 6. Trade Secrets And Confidential Or Proprietary Information.
Executive hereby agrees to hold in a fiduciary capacity for the benefit of Post and each
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 any member of the Post Group 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 Post and each 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 any
member of the Post Group.
§ 7. Reasonable and Necessary Restrictions.
The Post Group has identified Executive as an individual with significant skills and
experience critical to the business of the Post Group. In view of the significant and growing
demand for executive talent, the potential impact on the Post Group’s executives of the
transformational changes occurring within the industry and the Post Group, and the need to ensure
continuity of the management team for the Post Group, the Post Group desires to provide Executive
through this Agreement with certain incentives to remain in the Post Group’s employment. This
Agreement is also designed to provide additional motivation for meeting the Post Group’s 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 Group’s interests
should Executive’s employment terminate.
Executive acknowledges that Post and its Affiliates shall disclose or make available
Confidential Information and Trade Secrets to Executive that could be used by Executive to the
detriment of Post and its Affiliates. In addition, in connection with his employment, Executive
shall develop important relationships and contacts with employees valuable to Post and its
Affiliates.
Executive further acknowledges that § 4, § 5, and § 6 of this Agreement are fair and
reasonable, enforcement of the provisions of this Agreement will not cause Executive undue
hardship, and the provisions of this Agreement are reasonably necessary and commensurate with the
need to protect the Post Group and their business interests and property from irreparable harm.
Executive acknowledges that the restrictions, prohibitions, and other provisions
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set forth in this Agreement, including without limitation the Restricted Period and those set forth
in § 4, § 5, and § 6, are reasonable, fair and equitable in scope, terms, and duration; are
necessary to protect the legitimate business interests of the Post Group; and are a material
inducement to the Post Group 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.
§ 8. Specific Performance.
Executive acknowledges that the obligations undertaken by him pursuant to this Agreement are
unique and that the Post Group 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 Group’s right to specific performance of the terms of this Agreement is essential to
protect the rights and interests of the Post Group. Accordingly, in addition to any other remedies
that the Post Group may have at law or in equity, the Post Group will have the right to have all
obligations, covenants, agreements, and other provisions of this Agreement specifically performed
by Executive, and the Post Group 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.
§ 9. Tax Protection.
9.1 General Rule. 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 Group, will result in Executive’s being subject to an excise tax under § 4999
of the Code or if such an excise tax is assessed against Executive as a result of any such payments
and other benefits, the Post Group 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 § 9) as the Post Group reasonably requests
under the circumstances to mitigate or challenge such tax; provided, however, if the Post Group or
the Post Group’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 $10,000, Executive shall
irrevocably waive Executive’s right to receive such part if an independent accountant or lawyer
retained by Executive and paid by the Post Group agrees with the determination made by the Post
Group or the Post Group’s independent accountants with respect to the effect of such reduction in
payments or benefits. Any determinations under this § 9 shall be made in accordance with § 280G of
the Code and any applicable related regulations (whether proposed, temporary, or final) and any
related Internal Revenue
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Service rulings and any related case law and, if the Post Group 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 § 9) and Executive complies with
such request, the Post Group 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.
9.2 409A Rule. Any Gross Up Payment called for under § 9.1 to reimburse Executive for
paying the related tax shall be paid to Executive as and when any such determination or assessment
is made under § 9.1. The Post Group and Executive acknowledge and agree that solely to satisfy an
express requirement in the regulations under § 409A of the Code, such payment shall be made no
later than the end of the calendar year immediately following the calendar year in which Executive
pays the related tax, and that this provision of § 9.2 shall not give the Post Group the right to
delay making a Gross Up Payment to or on behalf of Executive under § 9.1.
§ 10. Executive’s Legal Fees and Expenses.
If any action at law or in equity is necessary for Executive to enforce or interpret the terms
of this Agreement, the Post Group shall pay Executive’s reasonable attorneys’ fees and other
reasonable expenses incurred with respect to such action. If any other action is taken with
respect to this Agreement, the Post Group shall bear its own attorneys’ fees and expenses and
Executive shall bear Executive’s own attorneys’ fees and expenses. If a reimbursement is called
for under this § 10, such reimbursement shall be made no later than the end of the calendar year
immediately following the calendar year in which Executive pays the related legal fees or expenses.
The Post Group and Executive acknowledge and agree that the deadline set forth in the immediately
preceding sentence is only intended to satisfy an express requirement in the regulations under §
409A of the Code and that such sentence shall not give the Post Group the right to delay making a
reimbursement in accordance with the first sentence in this § 10.
§ 11. Miscellaneous.
11.1 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; 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 the Post Group. This
Agreement shall inure to the benefit of and shall be binding upon the Post Group and their
successors and assigns; provided, however, that this Agreement is assignable in whole or in part to
any parent, subsidiaries, or affiliates of the Post Group only if such person or entity is
financially capable of fulfilling the
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obligations of the Post Group under this Agreement, and the Post Group as part of any Change in
Control which is made effective through a transaction for which there is a “closing” shall assign
the Post Group’s obligations under this Agreement to such successor and such successor shall
expressly agree to such assignment or the Post Group on or before the Effective Date for such
Change in Control shall (without any further action on the part of Executive) take the action
called for in § 3 of this Agreement as if Executive had been terminated without Cause on the
Effective Date for such Change in Control without regard to whether Executive’s employment actually
has terminated.
11.2 Construction of Agreement. No provision of this Agreement or any related
document shall be construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority, including an arbitrator, by reason of such party
having or being deemed to have structured or drafted such provision.
11.3 Governing Law. This Agreement shall be governed by and construed under the laws
of the State of Georgia (without reference to the choice of law principles under the laws of the
State of Georgia). Executive consents to jurisdiction and venue in the state and federal courts in
the State of Georgia for any action arising from a dispute under this Agreement, and for any such
action brought in such a court, expressly waives any defense Executive might otherwise have based
on lack of personal jurisdiction or improper venue, or that the action has been brought in an
inconvenient forum.
11.4 Survival of Agreements. All covenants and agreements made in this Agreement
shall survive the execution and delivery of this Agreement and the termination of Executive’s
employment under this Agreement for any reason.
11.5 Headings and References. The section and sub-section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All references to sections (§) in this Agreement shall be to
sections (§) of this Agreement unless otherwise expressly noted.
11.6 Notices. All notices, requests, consents, and other communications called for
under this Agreement 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, to Executive at his or her most recent home address as shown in the Post Group’s personnel files. |
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| (b) | If to the Post Group: |
Post Properties, Inc.
One Riverside
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Corporate Secretary
One Riverside
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Corporate Secretary
with a copy to:
Xxxxx X. Xxxxxxxx
Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
11.7 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.
11.8 Entire Agreement. This Agreement constitutes the entire agreement of the Post
Group and Executive with respect to the subject matter hereof and supersedes and replaces all prior
agreements, written or oral, with respect to the subject matter hereof. This Agreement may be
modified only by a written instrument signed by the member of the Post Group and Executive.
11.9 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.
11.10 No Waiver. No waiver by any party of any breach by the other party 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
a member of the Post Group, as the case may be.
11.11 Not an Employment Contract. This Agreement is not an employment contract and
shall not give Executive the right to continue in employment by the Post Group (or any member
thereof) for any period of time or from time to time. Moreover, this Agreement shall not adversely
affect the right of the Post Group (or any member thereof) to terminate Executive’s employment with
or without cause at any time.
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IN WITNESS WHEREOF, the members of the Post Group and Executive have executed this Agreement
as of the date first written above.
| POST PROPERTIES, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| POST APARTMENT HOMES, L.P. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| POST SERVICES, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| EXECUTIVE | ||||||
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