EXHIBIT 10.4
1.0X FORM
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement, or "Agreement", is entered
into by and between Post Properties, Inc., a Georgia corporation, and [ ], or
"Executive".
WHEREAS, Executive currently is employed as a senior executive
of Post or a Post Affiliate; and
WHEREAS, Post 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 contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Post and Executive hereby agree as follows:
Section 1.
Definitions
1.1 Board. The term "Board" for purposes of this Agreement shall
mean the Board of Directors of Post.
1.2 Cause. The term "Cause" for purposes of this Agreement shall
(subject to Section 1.2(d)) mean:
(a) Executive is convicted of, pleads guilty to, or
confesses or otherwise admits any felony or any act of fraud,
misappropriation or embezzlement or Executive otherwise engages in a
fraudulent act or course of conduct;
(b) There is any material act or omission by Executive
involving malfeasance or negligence in the performance of Executive's
duties to Post to the material detriment of Post; or
(c) Executive breaches in any material respect any of the
covenants set forth in Section 3, Section 4 or Section 5 of this
Agreement; provided, however,
(d) No such act or omission or event shall be treated as
"Cause" under this Agreement unless (i) Executive has been provided a
detailed, written statement of the basis for Post's belief such act or
omission or event constitutes "Cause" and an opportunity to meet with
the Compensation Committee (together with Executive's counsel if
Executive chooses to have Executive's counsel present at such meeting)
after Executive has had a reasonable period in which to review such
statement and, if the allegation is under Section 1.2(b) or Section
1.2(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 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.
1.3 Change in Control. The term "Change in Control" for purposes
of this Agreement shall mean:
(a) a "change in control" of Post of a nature that would
be required to be reported in response to Item 6(e) of Schedule 14A for
a proxy statement filed under Section 14(a) of the Securities Exchange
Act as in effect on the date of this Agreement;
(b) a "person" (as that term is used in 14(d)(2) of the
Exchange Act) becomes the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) directly or indirectly of securities
representing 45% or more of the combined voting power for election of
directors of the then outstanding securities of Post;
(c) the individuals who at the beginning of any period of
two consecutive years or less (starting on or after the date of this
Agreement) constitute Post's Board cease for any reason during such
period to constitute at least a majority of Post's Board, unless the
election or nomination for election of each new member of the Board was
approved by vote of at least two-thirds of the members of such Board
then still in office who were members of such Board at the beginning of
such period;
(d) the shareholders of Post approve any reorganization,
merger, consolidation or share exchange as a result of which the common
stock of Post shall be changed, converted or exchanged into or for
securities of another organization (other than a merger with a Post
Affiliate or a wholly-owned subsidiary of Post) or any dissolution or
liquidation of Post or any sale or the disposition of 50% or more of
the assets or business of Post; or
(e) the shareholders of Post approve any reorganization,
merger, consolidation or share exchange with another corporation unless
(i) the persons who were the beneficial owners of the outstanding
shares of the common stock of Post immediately before the consummation
of such transaction beneficially own more than 60% of the outstanding
shares of the common stock of the successor or survivor corporation in
such transaction immediately following the consummation of such
transaction and (ii) the number of shares of the common stock of such
successor or survivor corporation beneficially owned by the persons
described in Section 1.3(e)(i) immediately following the consummation
of such transaction is beneficially owned by each such person in
substantially the same proportion that each such person had
beneficially owned shares of Post common stock immediately before the
consummation of such transaction, provided (iii) the percentage
described in Section 1.3(e)(i) of the beneficially owned shares of the
successor or survivor corporation and the number described in Section
1.3(e)(ii) of the beneficially owned shares of the successor or
survivor corporation shall be determined exclusively by reference to
the shares of the successor or survivor corporation which result from
the beneficial ownership of shares of common stock of Post by the
persons described in Section 1.3(e)(i) immediately before the
consummation of such transaction.
1.4 Code. The term "Code" for purposes of this Agreement shall
mean the Internal Revenue Code of 1986, as amended.
1.5 Compensation Committee. The term "Compensation Committee" for
purposes of this Agreement means the Compensation Committee of the Board.
1.6 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 a Post
Affiliate (not otherwise included in the definition of Trade Secret in Section
1.18 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 a Post Affiliate.
1.7 Disability. The term "Disability" for purposes of this
Agreement means that Executive is unable as a result of a mental or physical
condition or illness to perform the essential functions of Executive's job at
Post even with reasonable accommodation for any consecutive 180-day period, all
as reasonably determined by the Compensation Committee.
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1.8 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 if the Change in Control is made
effective other than through a transaction which has a "closing".
1.9 Exchange Act. The term "Exchange Act" for purposes of this
Agreement shall mean the Securities Exchange Act of 1934, as amended.
1.10 Good Reason. The term "Good Reason" for purposes of this
Agreement shall (subject to Section 1.10(e)) mean:
(a) there is a reduction after a Change in Control but
before the end of Executive's Protection Period in Executive's combined
salary from Post and from each Post Affiliate or there is a reduction
after a Change in Control but before the end of Executive's Protection
Period in Executive's combined opportunity to receive any incentive
compensation or bonuses from Post and from each Post Affiliate 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 at Post or at any Post Affiliate (other than as a result of a
mere change in Executive's title if such change in title is consistent
with the organizational structure of Post and any Post Affiliate
following such Change in Control) without Executive's express written
consent;
(c) Post or any Post Affiliate at any time after a Change
in Control but before the end of Executive's Protection Period (without
Executive's express written consent) transfers Executive's primary work
site from Executive's primary work site on the date of such Change in
Control or, if Executive subsequently consents in writing to such a
transfer under this Agreement, from the primary work site which was the
subject of such consent, to a new primary work site which is more than
35 miles from Executive's then current primary work site unless such
new primary work site is closer to Executive's primary residence than
Executive's then current primary work site; or
(d) Post or any Post Affiliate fails (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 this Agreement 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 which starts on
the date there is an act or omission which forms the basis for
Executive's belief that Good Reason exists or (2) the end of
the period mutually agreed upon for purposes of this Section
1.10(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 which
begins
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immediately after the end of such thirty (30) day period if
Executive reasonably and in good faith determines that Good
Reason continues to exist after the end of such thirty (30)
day period, or
(ii) Post states in writing to Executive that
Executive has the right to treat any such act or omission as
Good Reason under this Agreement and Executive resigns during
the sixty (60) day period which starts on the date such
statement is actually delivered to Executive;
(f) If (A) Executive gives the Compensation Committee the
statement described in Section 1.10(e)(i) before the end of the thirty
(30) day period which immediately follows the end of the Protection
Period and Executive thereafter resigns within the period described in
Section 1.10(e)(i) or (B) Post provides the statement to Executive
described in Section 1.10(e)(ii) before the end of the thirty (30) day
period which immediately follows the end of the Protection Period and
Executive thereafter resigns within the period described in Section
1.10(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 Section 1.10(a) or Section 1.10(b), to any transfer
described in Section 1.10(c) or to any failure described in Section
1.10(d) in lieu of exercising Executive's right to resign for Good
Reason and delivers such consent to Post, the date such consent is
delivered to Post thereafter shall be treated under this definition as
the date of a Change in Control for purposes of determining whether
Executive subsequently has Good Reason under this Agreement to resign
under Section 2(a) or Section 2(c) as a result of any subsequent
reduction described in Section 1.10(a) or Section 1.10(b), any
subsequent transfer described in Section 1.10(c) or any subsequent
failure described in Section 1.10(d).
1.11 Gross Up Payment. The term "Gross Up Payment" for purposes of
this Agreement shall mean a payment to or on behalf of Executive which shall be
sufficient to pay (a) any excise tax described in Section 8 in full, (b) any
federal, state and local income tax and social security and other employment tax
on the payment made to pay such excise tax as well as any additional taxes on
such payment and (c) any interest or penalties assessed by the Internal Revenue
Service on Executive which are related to the payment of such excise tax unless
such interest or penalties are attributable to Executive's willful misconduct or
gross negligence.
1.12 Multifamily Property. The term "Multifamily Property" for
purposes of this Agreement shall mean any real property on which an upscale
multifamily residential-use development has been constructed or is under
construction of the date of this Agreement.
1.13 Post. The term "Post" for purposes of this Agreement shall
mean Post Properties, Inc. and any successor to Post.
1.14 Post Affiliate. The term "Post Affiliate" for purposes of this
Agreement shall mean (a) Post Apartment Homes, L.P. and any successor to such
organization, (b) Post Services, Inc. and any successor to such organization,
(c) Post GP Holdings, Inc. and any successor to such organization and (d) any
other organization if Post, Post Apartment Homes, L.P., Post Services, Inc. or
Post GP Holdings, Inc. (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) 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.
1.15 Protection Period. The term "Protection Period" for purposes
of this Agreement shall (subject to Section 1.10(f)) mean the two (2) year
period which begins on the Effective Date for a Change in Control.
1.16 Restricted Period. The term "Restricted Period" for purposes
of this Agreement shall mean the period which starts on the date Executive's
employment by Post or a Post Affiliate terminates under circumstances
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which create an obligation for Post under Section 2 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 Post breaches any obligation to
Executive under Section 2 of this Agreement, whichever period is shorter.
1.17 Salary and Bonus. The term "Salary and Bonus" for purposes of
this Agreement shall mean the sum of
(a) Executive's combined annual salary (as determined
without regard to any salary deferral election) from Post and each Post
Affiliate in effect on the day before Executive's employment terminates
under Section 2(a)(1) or, if greater, Executive's average annualized
combined annual salary (as determined without regard to any salary
deferral election) from Post and each Post Affiliate over the two (2)
consecutive year period (or, if less, Executive's period of employment
by Post) which ends on the date that Executive's employment so
terminates, and
(b) the average annual bonuses which have been paid by
Post and any Post Affiliate (whether paid at the discretion of Post or
any Post Affiliate 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 Post) whether
such bonuses are paid (or would have been paid but for a bonus deferral
election) in cash, in property or in any combination of cash and
property; provided, however,
(c) neither the value of any stock option or restricted
stock grants made by Post or any Post Affiliate 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 Section 1.17(a) or as part of Executive's
bonuses under Section 1.17(b).
1.18 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 a
Post Affiliate to maintain its secrecy.
Section 2.
Compensation and Benefits
(a) General Rule.
(1) If there is a Change in Control and Post
during Executive's Protection Period terminates Executive's
employment without Cause or Executive during Executive's
Protection Period resigns for Good Reason, then
(2) Post shall pay Executive one (1.0) times
Executive's then Salary and Bonus in cash in a lump sum within
thirty (30) days after the date Executive's employment so
terminates;
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(3) (a) Each outstanding stock option granted to
Executive by Post shall (notwithstanding the terms under which
such option was granted) become fully vested and exercisable
on the date Executive's employment so terminates and shall
(notwithstanding the terms under which such option was
granted) remain exercisable for the remaining term of each
such option (as determined as if there had been no such
termination of Executive's employment) subject to the same
terms and conditions as if Executive had remained employed by
Post or a Post Affiliate for such term (other than any term or
condition which gives Post the right to cancel any such
option) and (b) any restrictions on any outstanding restricted
stock grants to Executive by Post immediately shall
(notwithstanding the terms under which such grant was made)
expire and Executive's right to such stock shall be
non-forfeitable;
(4) (a) Executive shall have no obligation or
liability whatsoever for the repayment of any outstanding loan
from Post or a Post Affiliate until the due date for repayment
under the terms of such loan (as determined as if there had
been no such termination of Executive's employment) or until
the end of Executive's Protection Period, whichever comes
first, (b) Executive shall be treated during the period over
which no repayment is due pursuant to this Section 2(a)(4)(b)
as if he or she had remained in the employ of Post or a Post
Affiliate for all purposes, including any provision in such
loan or in any agreement related to such loan which provides
for the forgiveness of such loan while Executive remains
employed by Post or a Post Affiliate and (c) Post shall pay
Executive in cash within thirty (30) days after the date
Executive's employment so terminates 140% of the excess, if
any, of the then principal and interest outstanding on such
termination date on each loan which had been made by Post or a
Post Affiliate to Executive to help Executive purchase shares
of Post stock (whether made under Post's "senior management
stock ownership program" or otherwise) over the "total market
value" of such shares of stock on such termination date or, if
such Post stock has been converted into shares of stock in a
successor corporation, the "total market value" of such shares
of stock in such successor corporation, where such "total
market value" shall be determined by multiplying the number of
such shares of stock by (1) the closing price for such shares
on such termination date as reported in The Wall Street
Journal or, if there is no closing price on such termination
date, (2) the closing price for such shares of stock as
reported in The Wall Street Journal for the first date which
immediately precedes such termination date for which there is
a closing price for such shares of stock or, if The Wall
Street Journal no longer reports a closing price for such
shares, (3) the fair market value of a share of such stock as
determined in any manner which is acceptable to Executive; and
(5) Post from the date of such termination of
Executive's employment until the end of Executive's Protection
Period shall continue to provide to Executive (a) the same
coverage and benefits as Executive was provided under Post's
employee benefit plans, policies and practices on the day
before Executive's employment terminated or, at Executive's
election, on any date in the one (1) year period which ends on
the date of such termination of employment and (b) the same
executive perquisites (other than the use of a company
airplane for personal purposes) as Executive enjoyed on the
day before Executive's employment terminated or, at
Executive's election, on any date in the one (1) year period
which ends on the date of such termination; provided, however,
if Post cannot provide such coverage and benefits under Post's
employee benefit plans, policies or programs, Post either
shall provide such coverage and benefits to Executive outside
such plans, policies and programs at no additional expense or
tax liability to Executive or shall reimburse Executive for
Executive's cost to purchase such coverage and benefits and
for any tax liability for such reimbursements.
(b) No Increase in Other Benefits. If Executive's
employment terminates under the circumstances described in Section
2(a)(1) or Section 2(c), Executive expressly waives Executive's right,
if any, to have any payment made under Section 2(a) taken into account
to increase the benefits otherwise payable to, or on
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behalf of, Executive under any employee benefit plan, policy or
program, whether qualified or nonqualified, maintained by Post or a
Post Affiliate.
(c) Termination in Anticipation of a Change in Control.
Executive shall be treated under Section 2(a) as if Executive's
employment had been terminated without Cause or Executive had resigned
for Good Reason during Executive's Protection Period if
(1) Executive's employment is terminated by Post
without Cause or Executive resigns for Good Reason,
(2) such termination is effected or such
resignation is effective at any time in the sixty (60) day
period which ends on the date of a Change in Control, and
(3) there is an Effective Date for such Change
in Control.
(d) Death or Disability. Executive agrees that Post will
have no obligation to Executive under this Section 2 if Executive's
employment terminates exclusively as a result of Executive's death or a
Disability.
Section 3.
No Solicitation of Customers
Executive will not, during the Restricted Period, for purposes
of competing with Post or a Post Affiliate, solicit or seek to 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 entity or
person who was a customer of Post, and 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 Post.
Section 4.
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 Post or a Post Affiliate in an executive, managerial, or supervisory
capacity during the term of Executive's employment by Post, with whom Executive
had business dealings during the two (2) year period which ends on the date
Executive's employment by Post terminates (whether or not such employee would
commit a breach of contract), and who has not ceased to be employed by Post or a
Post Affiliate for a period of at least one (1) year.
Section 5.
Trade Secrets and Confidential or Proprietary Information
Executive hereby agrees that Executive will hold in a
fiduciary capacity for the benefit of Post and each Post Affiliate, and will not
directly or indirectly use or disclose, any Trade Secret that Executive may have
acquired during the term of Executive's employment by Post 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.
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Executive in addition agrees that Executive during the
Restricted Period will hold in a fiduciary capacity for the benefit of Post and
each Post Affiliate, and will not 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 Post.
Section 6.
Reasonable and Necessary Restrictions
Executive acknowledges that the restrictions, prohibitions and
other provisions set forth in this Agreement, including without limitation the
Restricted Period, are reasonable, fair and equitable in scope, terms and
duration; are necessary to protect the legitimate business interests of Post;
and are a material inducement to Post to enter into this Agreement. Executive
covenants that Executive will not challenge the enforceability of this Agreement
nor will Executive raise any equitable defense to its enforcement.
Section 7.
Specific Performance
Executive acknowledges that the obligations undertaken by him
pursuant to this Agreement are unique and that Post 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 Post' right to
specific performance of the terms of this Agreement is essential to protect the
rights and interests of Post. Accordingly, in addition to any other remedies
that Post may have at law or in equity, Post will have the right to have all
obligations, covenants, agreements and other provisions of this Agreement
specifically performed by Executive, and Post will have the right to obtain
preliminary and permanent injunctive relief to secure specific performance and
to prevent a breach or contemplated breach of this Agreement by Executive, and
Executive submits to the jurisdiction of the courts of the State of Georgia for
this purpose.
Section 8.
Tax Protection
If Post or Post's independent accountants determine that any
payments and benefits called for under this Agreement together with any other
payments and benefits made available to Executive by Post or a Post Affiliate
will result in Executive being subject to an excise tax under Section 4999 of
the Code or if such an excise tax is assessed against Executive as a result of
any such payments and other benefits, Post shall make a Gross Up Payment to or
on behalf of Executive as and when any such determination or assessment is made,
provided Executive takes such action (other than waiving Executive's right to
any payments or benefits in excess of the payments or benefits which Executive
has expressly agreed to waive under this Section 8) as Post reasonably requests
under the circumstances to mitigate or challenge such tax; provided, however, if
Post or Post's independent accountants make such a determination and, further,
determine that Executive will not be subject to any such excise tax if Executive
waives Executive's right to receive a part of such payments or benefits and such
part does not exceed $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 Post agrees with the determination made by Post or Post's
independent accountants with respect to the effect of such reduction in payments
or benefits. Any determinations under this Section 8 shall be made in accordance
with Section 280G of the Code and any applicable related regulations (whether
proposed, temporary or final) and any related Internal Revenue Service rulings
and any related case law and, if Post reasonably requests that Executive take
action to mitigate or challenge, or to mitigate and challenge, any such tax or
assessment (other than waiving Executive's right to any payments or benefits in
excess of the payments or benefits which Executive has expressly agreed to waive
under this Section 8) and Executive complies with such request, Post shall
provide Executive
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with such information and such expert advice and assistance from Post's
independent accountants, lawyers and other advisors as Executive may reasonably
request and shall pay for all expenses incurred in effecting such compliance and
any related fines, penalties, interest and other assessments.
Section 9.
Miscellaneous Provisions
9.1 Assignment. This Agreement is for the personal services of
Executive, and the rights and obligations of Executive under this Agreement are
not assignable in whole or in part by Executive without the prior written
consent of Post. This Agreement is assignable in whole or in part to any parent,
subsidiaries, or affiliates of Post, but only if such person or entity is
financially capable of fulfilling the obligations of Post under this Agreement,
and Post as part of any Change in Control which is made effective through a
transaction for which there is a "closing" shall assign Post's obligations under
this Agreement to Post's successor and such successor shall expressly agree to
such assignment or Post 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 Section 2 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.
9.2 Governing Law. This Agreement will 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.
9.3 Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
9.4 Headings; References. The headings and captions used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. Any reference to a section ( Section
) shall be to a section ( Section ) of this Agreement unless there is an express
reference to a section ( Section ) of the Code or the Exchange Act, in which
event the reference shall be to the Code or to the Exchange Act, whichever is
applicable.
9.5 Attorneys Fees. If any action at law or in equity is necessary
for Executive to enforce or interpret the terms of this Agreement, Post 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, Post shall bear its own attorneys' fees and expenses and
Executive shall bear Executive's own attorneys' fees and expenses.
9.6 Amendments and Waivers. Except as otherwise specified in this
Agreement, this Agreement may be amended, and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of Post and
Executive.
9.7 Severability. Any provision of this Agreement held to be
unenforceable under applicable law will be enforced to the maximum extent
possible, and the balance of this Agreement will remain in full force and
effect.
9.8 Entire Agreement. This Agreement constitutes the entire
understanding and agreement of Post and Executive with respect to the
transactions contemplated in this Agreement, and this Agreement supersedes all
prior understandings and agreements between Post and Executive with respect to
such transactions.
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9.9 Notices. Any notice required under this Agreement to be given
by either Post or Executive will be in writing and will be deemed effectively
given upon personal delivery to the party to be notified or five (5) days after
deposit with the United States Post office by registered or certified mail,
postage prepaid, to the other party at the address set forth below or to such
other address as either party may from time to time designate by ten (10) days
advance written notice pursuant to this Section 9.9. Each such written notice
shall be directed as follows:
If to Post, to Post Properties, Inc., One Riverside, 0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: Chief Executive
Officer.
If to Executive, to Executive at his or her most recent home address as
shown in Post's personnel files.
9.10 Binding Effect. This Agreement shall be for the benefit of,
and shall be binding upon, Post and Executive and their respective heirs,
personal representatives, legal representatives, successors and assigns,
subject, however, to the provisions in Section 9.1 of this Agreement.
9.11 Not an Employment Contract. This Agreement is not an
employment contract and shall not give Executive the right to continue in
employment by Post or a Post Affiliate for any period of time or from time to
time. Moreover, this Agreement shall not adversely affect the right of Post or a
Post Affiliate to terminate Executive's employment with or without cause at any
time.
9.12 Term.
(a) General Rule. Subject to Section 9.12(b), the initial
term of this Agreement shall be a three (3) year term, which starts on
the date of this Agreement, and this initial term automatically shall
be extended for one additional year on the first anniversary of the
date of this Agreement and for one additional year on each anniversary
date thereafter unless Post at least 180 days before any such
anniversary date advises Executive that there will be no such extension
on such anniversary date.
(b) Special Rule. If Executive has a right to any
compensation or benefits under Section 2 before the term of this
Agreement expires under Section 9.12(a), the term of this Agreement
shall continue until Executive agrees that all of Post's obligations to
Executive under this Agreement have been satisfied in full or a court
of competent jurisdiction makes a final determination that Post has no
further obligations to Executive under this Agreement, whichever comes
first.
IN WITNESS WHEREOF, Post and Executive have executed this
Agreement effective as of this ___ day of ____, 2003.
POST PROPERTIES, INC.
By: ____________________________
Xxxxx X. Xxxxxxxx
EXECUTIVE
________________________________
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SCHEDULE: EXECUTIVE OFFICERS WITH 1.0X FORM CHANGE IN CONTROL AGREEMENTS
Xxxx Xxxxx
Xxxxx Xxxxxx
Xxxx Xxxxxxxx
Xxxxx Xxxxxxx
Xx Xxxxx
Xxxxxxxxx Xxxxxx
Lyric Xxxxxxxx
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