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EXHIBIT 10.9.5
EXECUTIVE SEVERANCE AGREEMENT
AGREEMENT made as of this 1st day of April, 1997 by and between Summit
Properties Inc., a Maryland corporation with its principal place of business in
Charlotte, North Carolina (the "Company"), and Xxxxxxx X. Xxxxxxxx of Charlotte,
North Carolina (the "Executive").
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 Directors of the Company (the "Board")
recognizes, however, that, as is the case with many publicly held corporations,
the possibility of a Change in Control or a Combination Transaction (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
stockholders. 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 or a Combination
Transaction. Nothing in this Agreement shall be construed as creating an express
or implied contract of employment or any right to be retained in the employ of
the Company. The Company and the Executive have entered into an Employment
Agreement dated December 5, 1996 (as such agreement may be in effect from time
to time, and including any replacement employment agreement, the "Employment
Agreement") that provides for compensation to the Executive under certain
circumstances in the event that the Executive's employment is terminated. This
Agreement is intended to supplement the Employment Agreement without duplicating
payments in the event of the termination of the Executive's employment.
2. Change in Control and Combination Transactions.
(a) A "Change in Control" shall be deemed to have occurred in any
one of the following events:
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934 (the "Act") (other than
the Company, Summit Properties Partnership, L.P. (together with any
other subsidiaries of the Company, the "Subsidiaries"), 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 (A) 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 (B) the then outstanding
shares of stock of the Company ("Stock"), in either such case other
than as a result of an acquisition of securities directly from the
Company; or
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(ii) persons who, as of the date hereof, constitute the Board
(the "Incumbent Directors") cease for any reason, including, without
limitation, as a result of a tender offer, proxy contest, merger or
similar transaction, to constitute at least a majority of the Board,
provided that any person becoming a director of the Company subsequent
to the date hereof whose election or nomination for election was
approved by a vote of at least a majority of the Incumbent Directors
shall, for purposes of this Agreement, be considered an Incumbent
Director; or
(iii) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company or any Subsidiary where the
stockholders 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 fifty
percent (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), (B) any sale, lease, exchange or other
transfer (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 (C) 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 (i) solely as the result of an
acquisition of securities by the Company which, by reducing the number of shares
of Stock or other Voting Securities outstanding, increases (x) the proportionate
number of shares of Stock beneficially owned by any person to 40% or more of the
shares of Stock 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 any person referred to in clause (x) or (y) of this
sentence shall thereafter become the beneficial owner of any additional shares
of Stock or other Voting Securities (other than pursuant to a stock split, stock
dividend, or similar transaction), then a "Change in Control" shall be deemed to
have occurred for purposes of the foregoing clause (i).
(b) A "Combination Transaction" shall be deemed to have occurred
if the Company shall consummate any consolidation or merger of the Company or
any Subsidiary where the stockholders 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 75% or more of
either (i) the combined voting power of the Company's then outstanding Voting
Securities or (ii) the then outstanding shares of Stock.
(c) For purposes of determining whether a Change in Control or a
Combination Transaction has occurred, all outstanding options, warrants and
other convertible securities that are then exchangeable or convertible into
Voting Securities of the Company, including, without limitation, all partnership
units of any Subsidiary that are convertible into Voting
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Securities of the Company at the option of the holder or the Company, shall be
deemed to have been converted into the applicable number of shares of Voting
Securities of the Company immediately prior to making such determination.
3. Terminating Event. A "Terminating Event" shall mean any of the
following events:
(a) termination occurring subsequent to a Change of Control or a
Combination Transaction by the Company of the employment of the Executive with
the Company for any reason other than:
(i) the death of the Executive (which shall be referred to as
a "Death Termination") or total disability of the Executive
(total disability meaning the inability of the Executive to
perform his normal required services under this Agreement for
a period of six consecutive months during the term of this
Agreement by reason of the Executive's mental or physical
disability, as determined by the Board in good faith in its
sole discretion) (which shall be referred to as a "Disability
Termination") or the retirement of the Executive;
(ii) if the Executive is convicted of, pleads guilty to, or
confesses to any felony or any act of fraud, misappropriation
or embezzlement which has an immediate and materially adverse
effect on the Company, any Subsidiary or any affiliate of the
Company, as determined by the Board in good faith in its sole
discretion;
(iii) if the Executive engaged in a fraudulent act to the
material damage or prejudice of the Company, any Subsidiary or
any affiliate of the Company or in conduct or activities
materially damaging to the property, business or reputation of
the Company, any Subsidiary or any affiliate of the Company,
all as determined by the Board in good faith in its sole
discretion;
(iv) in the event of any material act or omission by the
Executive involving malfeasance or negligence in the
performance of the Executive's duties to the Company to the
material detriment of the Company, any Subsidiary or any
affiliate of the Company, as determined by the Board in good
faith in its sole discretion, which has not been corrected by
the Executive within thirty (30) days after written notice
from the Company of any such act or omission;
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(v) failure by the Executive to comply in any material respect
with the terms of the Employment Agreement or any written
policies or directives of the Board as determined by the Board
in good faith in its sole discretion, which has not been
corrected by the Executive within thirty (30) days after
written notice from the Company of such failure; or
(vi) a material breach by the Executive of that certain
Noncompetition agreement between the Executive and the Company
dated January 13, 1994 (the "Noncompetition Agreement") as
determined by the Board in good faith in its sole discretion.
Each of the events described in the foregoing clauses (ii) through (vi) shall be
referred to individually and collectively as a "For Cause Termination."
Notwithstanding any other provision of this Section 3(a), 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 or a Combination Transaction. For
purposes of clause (i) of this Section 3(a), "retirement" shall mean termination
of the Executive's employment in accordance with the Company's normal retirement
policy, generally applicable to its salaried employees, as in effect immediately
prior to the Change in Control or a Combination Transaction, or in accordance
with any retirement arrangement established with respect to the Executive with
the Executive's express written consent; or
(b) termination occurring subsequent to a Change in Control or a
Combination Transaction by the Executive of the Executive's employment with the
Company for Good Reason. "Good Reason" shall mean the occurrence of either of
the following, provided that in either case the Board has not corrected such
material reduction described below within thirty (30) days after written notice
by the Executive of such material reduction: (i) there is a material reduction
in the Executive's duties, rights or responsibilities under the Employment
Agreement without his consent, or (ii) there is a material decrease in the
aggregate value of the Executive's compensation and benefits package from the
Company under the Employment Agreement without his consent, other than a
reduction in the Executive's base salary that is permitted under the Employment
Agreement and other than a reduction in compensation and/or benefits affecting a
broad group of employees of the Company as determined by the Board in good faith
in its sole discretion; or
(c) termination occurring subsequent to a Change of Control by the
Executive of the Executive's employment with the Company for any reason, unless
an event that would constitute grounds for a For Cause Termination of the
Executive's employment has occurred.
4. Severance Payment. In the event that either a Terminating
Event described in Section 3(a), 3(b) or 3(c) occurs within twelve (12) months
after a Change in Control, or a
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Terminating Event described in Section 3(a) or 3(b) occurs within twelve (12)
months after a Combination Transaction:
(a) the Company shall pay to the Executive an amount equal to the
difference between (i) three (3) times the Executive's salary and cash bonus
paid (including amounts that were deferred by the Executive but would have been
paid in the absence of such deferral) with respect to the fiscal year
immediately preceding the year in which the Terminating Event occurred and (ii)
any amount of severance or other cash compensation paid to the Executive
pursuant to the Employment Agreement as a result of the termination of the
Executive's employment. Said amount shall be paid in one lump sum payment no
later than thirty-one (31) days following the Date of Termination (as such term
is defined in Section 8(b)); and
(b) the Company shall pay to the Executive all reasonable legal
and arbitration 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.
5. Additional Benefits.
(a) Anything in this Agreement to the contrary notwithstanding,
in the event it shall be determined that any payment or distribution by the
Company to or for the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (the "Severance Payments"), would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"),
or any interest or penalties are incurred by the Executive with respect to such
excise tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") such
that the net amount retained by the Executive, after deduction of any Excise Tax
on the Severance Payments, any Federal, state and local income tax, employment
tax and Excise Tax upon the payment provided by this subsection, and any
interest and/or penalties assessed with respect to such Excise Tax, shall be
equal to the Severance Payments.
(b) Subject to the provisions of Section 5(c), all determinations
required to be made under this Section 5, including whether a Gross-Up Payment
is required and the amount of such Gross-Up Payment, shall be made by the
Company's independent certified public accounting firm (the "Accounting Firm"),
which shall provide detailed supporting calculations both to the Company and the
Executive within 15 business days of the Date of Termination, if applicable, or
at such earlier time as is reasonably requested by the Company or the Executive.
For purposes of determining the amount of the Gross-Up Payment, the Executive
shall be deemed to pay federal income taxes at the highest marginal rate of
federal income taxation applicable to individuals for the calendar year in which
the Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rates of individual taxation in the state and locality of the
Executive's residence on the Date of Termination, net of the maximum reduction
in federal income taxes which could be obtained from deduction of such state and
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local taxes. The initial Gross-Up Payment, if any, as determined pursuant to
this Section 5(b), shall be paid to the Executive within five days of the
receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Executive, the Company shall
furnish the Executive with an opinion of counsel that failure to report the
Excise Tax on the Executive's applicable federal income tax return would not
result in the imposition of a negligence or similar penalty. Any determination
by the Accounting Firm shall be binding upon the Company and the Executive. As a
result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made (an "Underpayment"). In the event that the Company
exhausts its remedies pursuant to Section 5(c) and the Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred, consistent with the
calculations required to be made hereunder, and any such Underpayment, and any
interest and penalties imposed on the Underpayment and required to be paid by
the Executive in connection with the proceedings described in Section 5(c),
shall be promptly paid by the Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross- up Payment. Such notification shall be
given as soon as practicable but no later than 10 business days after the
Executive knows of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which he gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim; provided, however that the Company shall bear and pay
directly all costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold the
Executive harmless, on an after-tax basis, for any Excise Tax or
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income tax, including interest and penalties with respect thereto, imposed as a
result of such representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 5(c), the Company shall
control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim and
may, at its sole option, either direct the Executive to pay the tax claimed and
xxx for a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if the
Company directs the Executive to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to the Executive on an
interest-free basis and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax, including interest or
penalties with respect thereto, imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issues raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced
by the Company pursuant to Section 5(c), the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of Section 5(c)) promptly pay to
the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 5(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
6. Term. This Agreement shall take effect on the date first set
forth above and shall terminate upon the earlier of (a) immediately prior to a
For Cause Termination by the Company of the employment of the Executive, (b) the
termination of employment of the Executive by the Company or the Executive for
any reason prior to a Change in Control or a Combination Transaction, (c) the
resignation of the Executive other than for Good Reason after a Combination
Transaction, but prior to a Change in Control, or (d) immediately prior to the
resignation of the Executive after a Change in Control if any event that would
constitute grounds for a For Cause Termination of the Executive's employment has
occurred.
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7. 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.
8. Notice and Date of Termination; Disputes; Etc.
(a) Notice of Termination. After a Change in Control or
Combination Transaction and during the term of this Agreement, any purported
termination of the Executive's employment (other than by reason of a Death
Termination) shall be communicated by written Notice of Termination from one
party hereto to the other party hereto in accordance with this Section 8. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied upon
and the Date of Termination.
(b) Date of Termination. "Date of Termination", with respect to
any purported termination of the Executive's employment after a Change in
Control or Combination Transaction and during the term of this Agreement, shall
mean (i) if there is a Disability Termination, thirty (30) days after Notice of
Termination is given (provided that the Executive shall not have returned to the
full-time performance of the Executive's duties during such thirty (30) day
period) and (ii) if the Executive's employment is terminated for any other
reason, the date specified in the Notice of Termination. In the case of a
termination by the Company other than a For Cause Termination (which may be
effective immediately), the Date of Termination shall not be less than thirty
(30) days after the Notice of Termination is given. In the case of a termination
by the Executive, the Date of Termination shall not be less than fifteen (15)
days from the date such Notice of Termination is given. Notwithstanding Section
3(a) of this Agreement, in the event that the Executive gives a Notice of
Termination to the Company, the Company may unilaterally accelerate the Date of
Termination and such acceleration shall not result in a Terminating Event for
purposes of Section 3(a) of this Agreement.
(c) 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 Sections
4(a) and (b) 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, but shall be subject to reduction
by certain amounts received under the Employment Agreement as provided in
Section 4(a) hereof.
(d) Settlement and Arbitration of Disputes. Any controversy or
claim arising out of or relating to this Agreement or the breach thereof shall
be settled exclusively by arbitration in accordance with the laws of the State
of North Carolina by three arbitrators, one of whom shall be appointed by the
Company, one by the Executive and the third by the first two arbitrators. If the
first two arbitrators cannot agree on the appointment of a third arbitrator,
then the third arbitrator shall be appointed by the American Arbitration
Association in the City of Charlotte, North Carolina. Such arbitration shall be
conducted in the City of Charlotte, North Carolina
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in accordance with the rules of the American Arbitration Association for
commercial arbitrations, except with respect to the selection of arbitrators
which shall be as provided in this Section 8(d). Judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
9. 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 the Executive's
death after a Terminating Event but prior to the completion by the Company of
all payments due to him under Section 4(a) and (b) 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).
10. 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.
11. 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.
12. 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.
13. Effect on Other Plans. An election by the Executive to resign
after a Change in Control under the provisions of this Agreement shall not be
deemed a voluntary termination of employment by the Executive for the purpose of
interpreting the provisions of any of the Company's benefit plans, programs or
policies. Nothing in this Agreement shall be construed to limit the rights of
the Executive under the Company's benefit plans, programs or policies except as
otherwise provided in Section 5 hereof, and except that the Executive shall have
no rights to any severance benefits under any severance pay plan other than cash
amounts specifically set forth in the Employment Agreement or this Agreement.
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14. 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.
15. Governing Law. This Agreement shall be construed under and be
governed in all respects by the laws of the State of North Carolina.
16. Obligations of Successors. In addition to any obligations
imposed by law upon any successor to the Company, the Company will use its 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.
17. Confidential Information. The Executive shall never use,
publish or disclose in a manner adverse to the Company's interests, any
proprietary or confidential information relating to (a) the business, operations
or properties of the Company or any Subsidiary or other affiliate of the
Company, or (b) any materials, processes, business practices, technology,
know-how, research, programs or other information used in the business of the
Company or any Subsidiary or other affiliate of the Company; provided, however,
that no breach or alleged breach of this Section 17 shall entitle the Company to
fail to comply fully and in a timely manner with any other provision hereof.
Nothing in this Agreement shall preclude the Company from seeking money damages,
or equitable relief by injunction or otherwise without the necessity of proving
actual damage to the Company, for any breach by the Executive hereunder.
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.
SUMMIT PROPERTIES INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
and General Counsel
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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