EXHIBIT 10.26
SEPARATION/RETIREMENT AGREEMENT AND GENERAL RELEASE
In consideration of the undersigned parties' mutual promises and agreements
described below, Xxxxxx X. Xxxxxx, Xx. ("Employee") and Colonial Properties
Trust ("Colonial") agree as follows:
1. Colonial agrees to:
a. pay Employee two (2) years of annual base salary, in the
amount of Five hundred, Thirty thousand Dollars ($530,000),
grossed up for applicable state and federal taxes to include
but not limited to income tax withholding, FICA, FUTA State
Unemployment, local taxes and the like; plus $185,964 to cover
other anticipated future tax obligations and expenses; and
b. offer retiree medical benefits through group plan offered by
Colonial to current employees at employee's expense, pending
approval of retiree benefits by the Compensation Committee;
and
c. a three (3) year consulting retainer to be paid at $90,000.00
per year plus $10,000.00 per year for expenses. All consulting
shall be with reasonable notice and reasonable in duration.
All expenses shall be consistent with past pattern and
practices employed by the Employee while an employee of
Colonial (i.e. travel, lodging and meal accommodations); and
d. pay Employee for any unused vacation balance.
2. (A) employee voluntarily retires of his own free will and accord
effective March 1, 2004 and agrees:
i. to give or return to Colonial all Colonial property,
including without limitation keys, equipment,
originals and all copies of documents and stored or
downloaded information, and to not retain such
property in Employee's possession, custody or
control;
ii. except for information that is disclosed in any
filing with the SEC or other governmental agency, to
not disclose the terms of this agreement, the
circumstances surrounding its execution or the fact
that Colonial will provide any payment pursuant to
this agreement, to any person or entity with the
exception of Employee's legal counsel(s), tax
advisor(s), financial planner(s), accountant(s),
spouse and or unless required by law or any
administrative body; and in good faith attempt to
first obtain the agreement of his spouse, financial
planner(s), tax advisor(s) and legal counsel(s) to
comply with the same non-disclosure obligation
described above before any such disclosure is made to
them; if asked, Employee may disclose that his
employment relationship and the financial terms of
the employment were "concluded" or "resolved".
iii. to make himself available, assist and cooperate fully
and truthfully, at Colonial's request, with
Colonial's or its attorneys' investigation of any
matter of their participation in any proceeding,
judicial or otherwise, growing out of or involving
Colonial during Employee's employment with Colonial;
provided however that such participation shall be
reasonable in time and duration and any expenses
incurred by the Employee shall be reimbursed to the
Employee. All expenses shall be consistent with past
pattern and practices employed by the Employee while
an employee of Colonial (i.e. travel, lodging and
meal accommodations); and
iv. to refrain from making any negative or disparaging
comments regarding Colonial or its officers, agents
or employees; Notwithstanding the foregoing, nothing
contained herein shall be construed to limit
Employee's ability to testify truthfully in any
proceeding that in the future may require such
testimony.
(B) Colonial agrees:
i. except for information that is disclosed in any
filing with the SEC or other governmental agency, to
not disclose the terms of this agreement, the
circumstances surrounding its execution or the fact
that Colonial will provide any payment pursuant to
this agreement, to any person or entity with the
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exception of Colonial's legal counsel(s), tax
advisor(s), financial planner(s), officers, directors
and executive officers on a need to know basis only
and/or unless required by law or any administrative
body; and in good faith attempt to first obtain the
agreement of its financial planner(s), officers,
directors and executive officers on a need to know
basis only and/or unless required by law or any
administrative body; and in good faith attempt to
first obtain the agreement of its financial
planner(s), accountant(s), tax advisor(s) and legal
counsel(s) to comply with the same non-disclosure
obligation described above before any such disclosure
is made to them. If asked, Colonial may disclose that
Employee's employment relationship and the financial
terms were "concluded" or "resolved". Colonial shall
instruct all applicable parties of the
confidentiality of this provision and encourage each
not to breach this confidentiality provision;
ii. Upon request, Colonial will provide potential
employers positive references with no negative
connotation.
3. (A) i. Employee does hereby release, acquit and discharge
Colonial Properties Trust, its subsidiaries or
affiliated companies, and all of their directors,
officers, employees, servants, agents and attorneys,
from any and all claims or causes of action
whatsoever of any kind or nature, whether known or
unknown, including claims and causes of actions
arising out of or in any way related to Employee's
employment or the termination of his employment with
Colonial, or which were, might or could have been
asserted in any court or before any administrative
agency under the Civil Rights Act of 1991, Title VII
of the Civil Rights Act of 1964, the Civil Rights Act
of 1866, the Americans with Disabilities Act, the
Rehabilitation Act of 1973, the Age Discrimination in
Employment Act, the Older Workers Benefit Protection
Act, the Family and Medical Leave Act, the Employee
Retirement Income Security Act of 1974, the Equal Pay
Act, the Fair Labor Standards Act, the Vietnam Era
Veteran's Readjustment Assistance Act, the Uniform
Service Employment and Reemployment Rights Act of
1994, the Fair Credit Reporting Act, ALABAMA: Alabama
Code Sections 25-1-20 et seq. (the Alabama Age
Discrimination in Employment Act); Alabama Code
Section 25-1-10 (the Alabama Affirmative Action
Programs for Minorities law); Alabama Code Section
13A-11-123 (anti-blacklisting statute); Alabama Code
Section 12-16-8 (employer shall pay usual
compensation to employee during employee's jury
service); Alabama Code Section 12-16-8.1 (employer
not to discharge employee fro jury service); Alabama
Code Section 25-5-11.1 (prohibition of discharge of
employee for filing workers' compensation claim or
for safety complaints); Alabama Code Sections
25-5-330 et seq. (drug-free workplace program);
Alabama Code Sections 25-7-30 et seq. (right to work
laws), all as amended, or any other statute of the
United States of America or the state of Alabama, the
laws of the state of Alabama including tort and
contract claims) or the Constitution of either the
state of Alabama or the United States, to the fullest
extent that such a release is allowed by law.
ii. Employee acknowledges and agrees that he is aware of
his rights under the laws specifically and generally
described above and that he waives those rights to
the full extent that waiver is allowed by law.
iii. Employee also acknowledges and agrees that the
payment described above shall not be considered an
admission of liability or guilt in any manner
whatsoever but is solely for purposes of providing
severance pay to Employee and for resolving any legal
claims that have not been asserted and that would be
doubtful and undisputed if asserted, and that the
payment also represents payment in full satisfaction
of all claims for costs, expenses and attorneys' fees
arising under or related to the laws described
specifically and generally above.
iv. Employee further agrees to not institute or
voluntarily participate as a class member in any
civil action against Colonial that concerns any
employment matter encompassed by this release.
(B) i. Colonial for itself and on behalf of its subsidiaries
or affiliated companies, and all of their directors,
officers, employees, servants, agents and attorneys
and their heirs, personal representatives, successors
and assigns does hereby release, acquit and discharge
Employee from any and all claims or causes of action
whatsoever of any kind or nature, whether known or
unknown, including claims and causes of action
arising out of or in any way related to Employee's
employment or the termination of his employment with
Colonial, except for acts of fraud on the part of the
Employee.
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ii. Colonial also acknowledges and agrees that the
payment described above shall not be considered an
admission of liability or guilt in any manner
whatsoever but is solely for purposes of providing
severance pay to Employee and for resolving any legal
claims that have not been asserted and that would be
doubtful and undisputed if asserted, and that the
payment also represents payment in full satisfaction
of all claims for costs, expenses and attorney's fees
arising under or related to the laws described
specifically and generally above as pertaining to a
law suit that may arise as a result of Employee
carrying out his duties as pursuant to his course of
business.
4. A failure on the part of either party to insist on strict performance
of any term of this agreement in one or more instances shall not be
construed as a waiver or relinquishment of that party's right to insist
on strict performance in the future.
5. Employee agrees that his breach of this agreement could result in
irreparable harm and injury to Colonial and would cause damage to
Colonial in such a way that it would be impossible to calculate actual
damages. Any such breach may entitle Colonial to injunctive relief
restraining Employee from continued violations, to recover all
compensation provided by Colonial as consideration for this agreement
except Twenty-Five Dollars ($25.00), to additional remedies provided in
the following paragraphs, and to any other remedies available to
Colonial.
6. Employee agrees that he shall not compete with the business of
Colonial, without written consent from Colonial, for a period of two
years. The term "not compete" as used in this agreement means that
Employee shall not directly or indirectly, as an owner, officer,
director, employee, consultant or stockholder, engage in another REIT
business or engage in a business substantially similar or competitive
to the retail, commercial and multifamily residential business of
Colonial.
7. In the event that either party hereto commences legal action to enforce
the terms of this severance agreement and general release and prevails
to any extent in the action, the non prevailing party may be liable for
expenses, costs and reasonable attorneys' fees the prevailing party
incurs in the action within the sole and absolute discretion of the
court of competent jurisdiction.
8. Should a court deem any provision of this agreement to be unenforceable
in whole or in part, it shall not affect the legality or enforceability
of the remainder of such provision or any other provision of this
agreement, which shall survive and remain enforceable.
9. This severance agreement and general release constitutes the entire
agreement between the parties. Neither party shall be bound by any
terms, conditions, statements or representations, oral or written not
herein contained. Each party hereto hereby acknowledges and agrees that
in executing this agreement neither has relied upon or been induced,
persuaded or motivated by any promise or representation made by the
other unless expressly set forth herein and that neither has made any
promise or representation except those expressly set forth herein. All
previous negotiations, statements and any preliminary instruments
prepared by the parties or their representatives are merged in this
agreement.
10. This severance agreement and general release shall be governed by and
interpreted in accordance with the laws of the state of Alabama.
11. Each party to this Agreement irrevocably and unconditionally: (1)
SUBMITS for Employee and/or his heirs, personal representatives and/ or
assigns, and for Colonial and for and on behalf of all of their
directors, officers, employees, servants, agents, attorneys, and their
heirs personal representatives, successors and assigns as the case may
be) in any legal action or proceeding relating to this Agreement, or
for recognition and enforcement of any judgment in respect thereof, to
the exclusive and concurrent general jurisdiction of the courts of the
State of Alabama in Jefferson County Alabama, the courts of the United
States of America for the Northern District of Alabama, and/or the
appellate courts from any thereof; (2) consents that any such action or
proceeding must be brought in such courts, and waives any objection
that any party hereto may now or hereafter have to the jurisdiction and
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same; and (3) agrees that nothing herein
shall affect the right to effect service of process in any other manner
permitted by law.
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12. The language of all parts of this Agreement shall in all cases be
construed as a whole, according to its fair meaning. This Agreement is
the product of a negotiated settlement and has been reviewed by
attorneys for all parties. As such, in the event that a term or
provision herein shall be deemed to be ambiguous, that term or
provision shall not be strictly and arbitrarily construed in favor of
or against any one of the parties.
13. Notwithstanding anything contained herein to the contrary, nothing
contained herein will modify or impair the Employee's rights under any
retirement plan(s), restricted stock option plans, incentive stock
option plans and the like, it being understood and agreed to by the
parties that all of those rights shall be governed by the terms and
provisions of those plans.
14. This Agreement shall be binding on the parties hereto and their
respective heirs, personal representatives, successors and assigns
EACH HAS READ THE FOREGOING SETTLEMENT AGREEMENT AND GENERAL RELEASES, AND EACH
FULLY UNDERSTANDS ITS TERMS, HAVE CONSULTED THEIR RESPECTIVE ATTORNEY ABOUT IT
OR BEEN GIVEN MORE THAN AMPLE TIME TO CONSULT WITH THEIR ATTORNEY ABOUT IT, AND
HAVE SIGNED IT VOLUNTARILY THIS 30TH DAY OF DECEMBER, 2003.
COLONIAL PROPERTIES TRUST
/s/ Xxxx X. Rirgish
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By: Xxxx X. Xxxxxxx
Its: Chief Administrative Officer
XXXXXX X. XXXXXX, XX
/s/ Xxxxxx X. Xxxxxx, Xx.
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Its: Employee
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