GABLES RESIDENTIAL TRUST Senior Executive Severance Agreement
3:
Exhibit 10.14
AGREEMENT
made as of this 30th day of
March, 2001 by and among Gables Residential Trust, a Maryland business trust
with its principal place of business in Atlanta, Georgia (the "Company"), and
Xxxx X. Xxxxxx (the "Executive"), an individual presently employed as the Senior
Vice President and Chief Accounting Officer of the Company, as amended with
respect to Section 4(a) effective as of the 13th day of
January, 2005.
1. Purpose. The
Company considers it essential to the best interests of its stockholders to
xxxxxx the continuous employment of key management personnel. The Board of
Trustees of the Company (the "Board") recognizes, however, that, as is the case
with many publicly held corporations, the possibility of a Change in Control (as
defined in Section 2 hereof) exists and that such possibility, and the
uncertainty and questions which it may raise among management, may result in the
departure or distraction of management personnel to the detriment of the Company
and its shareholders. Therefore, the Board has determined that appropriate steps
should be taken to reinforce and encourage the continued attention and
dedication of members of the Company's management, including the Executive, to
their assigned duties without distraction in the face of potentially disturbing
circumstances arising from the possibility of a Change in Control. Nothing in
this Agreement shall be construed as creating an express or implied contract of
employment and, except as otherwise agreed in writing between the Executive and
the Company, the Executive shall not have any right to be retained in the employ
of the Company.
2. Change
in Control. For
purposes of this Agreement, a "Change in Control" shall mean the occurrence of
any one of the following events:
(a) any
"person," as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Act") (other than the Company, any of its
Subsidiaries (as defined below), or any trustee, fiduciary or other person or
entity holding securities under any employee benefit plan or trust of the
Company or any of its Subsidiaries), together with all "affiliates" and
"associates" (as such terms are defined in Rule 12b-2 under the Act) of such
person, shall become the "beneficial owner" (as such term is defined in Rule
13d-3 under the Act), directly or indirectly, of securities of the Company
representing 40% or more of either (i) the combined voting power of the
Company's then outstanding securities having the right to vote in an election of
the Board ("Voting Securities") or (ii) the then outstanding common shares of
beneficial interest, par value $.01 per share, of the Company ("Shares") (in
either such case other than as a result of an acquisition of securities directly
from the Company); or
(b) individuals
who, as of the date hereof, constitute the Board (the "Incumbent Members") cease
for any reason to constitute at least a majority of the Board, provided,
however, that any individual becoming a trustee of the Company subsequent to the
date hereof (excluding, for this purpose, (A) any such individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of members of the Board or other actual or
threatened solicitation of proxies or consents by or on behalf of a person other
than the Board, including by reason of agreement intended to avoid or settle any
such actual or threatened contest or solicitation, and (B) any individual whose
initial assumption of office is in connection with a merger or consolidation,
involving an unrelated entity), whose election or nomination for election by the
Company's shareholders was approved by a vote of at least a majority of the
persons then comprising Incumbent Members shall for purposes of this Agreement
be considered an Incumbent Member; or
(c) the
consummation of a consolidation or merger of the Company where the shareholders
of the Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, "beneficially own" (as such term
is defined in Rule 13d-3 under the Act), directly or indirectly, shares
representing in the aggregate 50% or more of the voting shares of the
corporation issuing cash or securities in the consolidation or merger (or of its
ultimate parent corporation, if any) (the "Resulting Corporation");
or
(d) the
shareholders of the Company shall approve (A) any sale, lease, exchange or other
transfer to an unrelated party (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all or substantially
all of the assets of the Company or (B) any plan or proposal for the liquidation
or dissolution of the Company.
Notwithstanding
the foregoing, a "Change in Control" shall not be deemed to have occurred for
purposes of the foregoing clause (a) solely as the result of an acquisition of
securities by the Company which, by reducing the number of Shares or other
Voting Securities outstanding, increases (x) the proportionate number of Shares
beneficially owned by any person to 40% or more of the Shares then outstanding
or (y) the proportionate voting power represented by the Voting Securities
beneficially owned by any person to 40% or more of the combined voting power of
all then outstanding Voting Securities; provided,
however, that if
such person referred to in clause (x) or (y) of this sentence shall thereafter
become the beneficial owner of any additional Shares or Voting Securities (other
than pursuant to a stock split, stock dividend, or similar transaction or as a
result of an acquisition of securities directly from the Company) and
immediately thereafter beneficially owns 40% or more of the combined voting
power of all the outstanding Voting Securities or 40% or more of the Shares then
outstanding, then a "Change in Control" shall be deemed to have occurred for
purposes of the foregoing clause (a).
Notwithstanding
the foregoing, a "Change in Control" shall not be deemed to have occurred for
purposes of the foregoing clause (c) if after the consummation of a consolidation
or merger of the Company where the shareholders of the Company, immediately
prior to the consolidation or merger, would, immediately after the consolidation
or merger, "beneficially own" (as such term is defined in Rule 13d-3 under the
Act), directly or indirectly, shares representing in the aggregate less than 50%
or more of the voting shares of the Resulting Corporation, the Incumbent Members
constitute at least 50% of the board of directors or board of trustees of the
Resulting Corporation and the Chairman and Chief Executive Officer of the
Company prior to the consolidation or merger remains the Chief Executive Officer
of the Resulting Company immediately after the consolidation or
merger.
As used
in this definition of "Change in Control," the term "Subsidiary" means Gables
Realty Limited Partnership, Gables Residential Services, Inc., Gables Central
Construction, Inc., and Gables East Construction, Inc., and any corporation or
other entity (other than the Company) in any unbroken chain of corporations or
other entities, beginning with the Company if each of the corporations or
entities (other than the last corporation or entity in the unbroken chain) owns
stock or other interests possessing 50% or more of the economic interest or the
total combined voting power of all classes of stock or other interests in one of
the other corporations or entities in the chain.
3. Terminating
Event. A
"Terminating Event" shall mean any of the events provided in this Section 3
occurring within 24 months following a Change in Control:
(a) termination
by the Company of the employment of the Executive with the Company and its
Subsidiaries for any reason other than for Cause or the death of the Executive.
"Cause" shall mean, and shall be limited to, the occurrence of any one or more
of the following events:
(i) a willful
act of dishonesty by the Executive in connection with the performance of his
material duties involving the Company or any of its Subsidiaries;
or
(ii) conviction
of the Executive of a crime involving moral turpitude or conviction of a felony
and such conviction has a material adverse affect on the interests of the
Company; or
(iii) the
deliberate or willful failure by the Executive (other than by reason of the
Executive's physical or mental illness, incapacity or disability) to
substantially perform the Executive's duties with the Company and the
continuation of such failure for a period of 30 days after delivery by the
Company to the Executive of written notice specifying the scope and nature of
such failure and its intention to terminate the Executive for Cause.
A
Terminating Event shall not be deemed to have occurred pursuant to this Section
3(a) solely as a result of the Executive being an employee of any direct or
indirect successor to the business or assets of the Company, rather than
continuing as an employee of the Company following a Change in Control. For
purposes of clauses (i) and (iii) of this Section 3(a), no act, or failure to
act, on the Executive's part shall be deemed "willful"unless
done, or omitted to be done, by the Executive without reasonable belief that the
Executive's act, or failure to act, was in the best interest of the Company;
or
(b) termination
by the Executive of the Executive's employment with the Company and its
Subsidiaries for Good Reason. "Good Reason" shall mean the occurrence of any of
the following events:
(i) a
substantial adverse change in the nature or scope of the Executive's
responsibilities, authorities, powers, functions, or duties from the
responsibilities, authorities, powers, functions, or duties exercised by the
Executive immediately prior to the Change in Control; or
(ii) a
reduction in the Executive's annual base salary as in effect on the date hereof
or as the same may be increased from time to time except for across-the-board
salary reductions similarly affecting all or substantially all management
employees; or
(iii) the
relocation of the Company's offices at which the Executive is principally
employed immediately prior to the date of a Change in Control to a location more
than 30 miles from such offices, or the requirement by the Company for the
Executive to be based anywhere other than the Company's offices at such
location, except for required travel on the Company's business to an extent
substantially consistent with the Executive's business travel obligations
immediately prior to the Change in Control; or
(iv) the
failure by the Company to pay to the Executive any portion of his compensation
or to pay to the Executive any portion of an installment of deferred
compensation under any deferred compensation program of the Company within 15
days of the date such compensation is due without prior written consent of the
Executive; or
(v) the
failure by the Company to obtain an effective agreement from any successor to
assume and agree to perform this Agreement.
4. Special
Termination Payments. In the
event a Terminating Event occurs within 24 months after a Change in Control,
subject to the signing by Executive of a release of employment-related claims
reasonably acceptable to the Company (or its successor),
(a) the
Company shall pay to the Executive an amount equal to three (3) times the sum of
Executive's (i) most recent annual base salary (or Executive's annual base
salary immediately prior to the Change in Control, if higher), (ii) the cash
bonus awarded for the fiscal year of the Company most recently ended prior to
the Change of Control, if any, and (iii) the value of the entire restricted
stock grant (determined using the fair market value on the date of grant, less
consideration paid, if any, of both the vested and unvested portion of the total
grant, without regard to any restrictions thereon) awarded for the fiscal year
of the Company most recently ended prior to the Change of Control, if
any.
Said amount shall be paid in one lump sum payment no later
than 31 days following the date of termination; and
(b) the
Company shall pay to the Executive all reasonable legal and mediation fees and
expenses incurred by the Executive in obtaining or enforcing any right or
benefit provided by this Agreement, except in cases involving frivolous or bad
faith litigation initiated by the Executive.
Notwithstanding
the foregoing, the special termination benefits required by Section 4(a) hereof
shall be reduced by any amount paid or payable to the Executive by the Company
pursuant to any employment or similar agreement between the Company and the
Executive (or any employment or similar agreement to which the Executive becomes
a party after the date hereof), on account of the termination of employment of
the Executive.
5. Term. This
Agreement shall take effect on the date first set forth above and shall
terminate upon the earliest of (a) the termination by the Company of the
employment of the Executive for Cause; (b) the resignation or voluntary
termination of the Executive for any reason prior to a Change in Control; (c)
the resignation of the Executive after a Change in Control for any reason other
than the occurrence of any of the events enumerated in Section 3(b)(i)-(v) of
this Agreement; or (d) 24 months plus one day following a Change in
Control.
6. Withholding. All
payments made by the Company under this Agreement shall be net of any tax or
other amounts required to be withheld by the Company under applicable
law.
7. No
Mitigation; Disputes; Etc.
(a) No
Mitigation. The
Company agrees that, if the Executive's employment by the Company is terminated
during the term of this Agreement, the Executive is not required to seek other
employment or to attempt in any way to reduce any amounts payable to the
Executive by the Company pursuant to Section 4 hereof. Further, the amount of
any payment provided for in this Agreement shall not be reduced by any
compensation earned by the Executive as the result of employment by another
employer, by retirement benefits, or otherwise.
(b) Mediation
of Disputes. The
parties shall endeavor in good faith to settle within 90 days any controversy or
claim arising out of or relating to this Agreement or the breach thereof through
mediation with JAMS, Endispute or similar organizations. If the controversy or
claim is not resolved within 90 days, the parties shall be free to pursue other
legal remedies in law or equity.
8. Assignment;
Prior Agreements. Neither
the Company nor the Executive may make any assignment of this Agreement or any
interest herein, by operation of law or otherwise, without the prior written
consent of the other party, and without such consent any attempted transfer
shall be null and void and of no effect. This Agreement shall inure to the
benefit of and be binding upon the Company and the Executive, their respective
successors, executors, administrators, heirs and permitted assigns. In the event
of theExecutive's death after a Terminating Event but prior to the completion by
the Company of all payments due him under Section 4 of this Agreement, the
Company shall continue such payments to the Executive's beneficiary designated
in writing to the Company prior to his death (or to his estate, if the Executive
fails to make such designation).
9. Enforceability. If any
portion or provision of this Agreement shall to any extent be declared illegal
or unenforceable by a court of competent jurisdiction, then the remainder of
this Agreement, or the application of such portion or provision in circumstances
other than those as to which it is so declared illegal or unenforceable, shall
not be affected thereby, and each portion and provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
10. Waiver. No
waiver of any provision hereof shall be effective unless made in writing and
signed by the waiving party. The failure of any party to require the performance
of any term or obligation of this Agreement, or the waiver by any party of any
breach of this Agreement, shall not prevent any subsequent enforcement of such
term or obligation or be deemed a waiver of any subsequent breach.
11. Notices. Any
notices, requests, demands, and other communications provided for by this
Agreement shall be sufficient if in writing and delivered in person or sent by
registered or certified mail, postage prepaid, to the Executive at the last
address the Executive has filed in writing with the Company, or to the Company
at its main office, attention of the Board of Trustees.
12. Effect
on Other Plans. Nothing
in this Agreement shall be construed to limit the rights of the Executive under
the Company's benefit plans, programs or policies.
13. Amendment. This
Agreement may be amended or modified only by a written instrument signed by the
Executive and by a duly authorized representative of the Company.
14. Governing
Law. This is
a Maryland contract and shall be construed under and be governed in all respects
by the laws of the State of Maryland.
15. Obligations
of Successors. In
addition to any obligations imposed by law upon any successor to the Company,
the Company will use their best efforts to require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession had taken
place.
IN
WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the
Company by its duly authorized officer and by the Executive, as of the date
first above written.
| GABLES RESIDENTIAL TRUST | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Name: |
Xxxxx X. Xxxxxxx | |
|
Title: |
Chief Executive Officer | |
| /s/ Xxxx X. Xxxxxx | ||
| Xxxx X. Xxxxxx | ||
