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Exhibit 10.1
POST PROPERTIES, INC. DEFERRED COMPENSATION PLAN
FOR DIRECTORS AND ELIGIBLE EMPLOYEES
AS AMENDED AND RESTATED
EFFECTIVE AS OF
JANUARY 1, 2005
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TABLE OF CONTENTS
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Section 1.
PURPOSE.........................................................
1
Section 2.
DEFINITIONS.....................................................
1
2.1
Account..........................................................
1
2.2 Adjustment
Date.................................................. 1
2.3
Affiliate........................................................
1
2.4 Base
Salary......................................................
2
2.5
Beneficiary......................................................
2
2.6
Board............................................................
2
2.7
Bonus............................................................
2
2.8 Change in
Control................................................
2
2.9
Code.............................................................
4
2.10
Compensation.....................................................
4
2.11
Director.........................................................
4
2.12
Disability.......................................................
4
2.13 Distribution
Date................................................ 5
2.14 Effective Date of a Change
in Control............................ 5
2.15 Eligible
Employee................................................
5
2.16 409A
Requirements................................................
6
2.17 Meeting
Fees.....................................................
6
2.18 Participating
Employer........................................... 6
2.19
Post.............................................................
6
2.20 Post Apartment
Homes............................................. 6
2.21 Post
Stock.......................................................
6
2.22
Retainer.........................................................
7
2.23 Special
Committee................................................
7
2.24 Specified
Employee...............................................
7
Section 3. DEFERRAL
ELECTIONS..............................................
7
3.1 Initial Election for
First-Term Directors........................ 7
3.2 Annual Deferral
Elections........................................ 7
3.3 Automatic Election
Extension..................................... 8
3.4 Account
Credits..................................................
9
3.5 Participating
Employer........................................... 9
Section 4. ACCOUNT
ADJUSTMENTS.............................................
10
4.1 Eligible
Employees...............................................
10
4.2
Directors........................................................
11
4.3
Adjustments......................................................
11
Section 5. DISTRIBUTION
DATE............................................... 12
5.1 General
Rule.....................................................
12
5.2 Distributions to
Specified Employees............................. 12
5.3 Fixed
Time.......................................................
13
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5.4 Unforeseeable
Emergency.......................................... 14
5.5
Death............................................................
15
Section 6. DISTRIBUTION
METHOD............................................. 17
6.1
General..........................................................
17
6.2 Distribution
Form................................................ 17
6.3 Election
Revisions...............................................
17
6.4 Distribution
Methods............................................. 19
6.5 Change in
Control................................................
22
6.6 General
Assets...................................................
22
Section 7. TRANSITION RULES FOR DIRECTOR
ACCOUNTS.......................... 23
Section 8. COMPLIANCE WITH CODE Section
409A............................... 23
Section 9.
MISCELLANEOUS...................................................
24
9.1 Making and Revoking
Elections.................................... 24
9.2 No
Liability.....................................................
24
9.3 No Assignment: Binding
Effect.................................... 24
9.4
Construction.....................................................
25
9.5 No Contract of
Employment........................................ 25
9.6 Amendment and
Termination........................................ 25
9.7
Administration...................................................
26
9.8 Plan Effective
Date.............................................. 26
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Section 1.
PURPOSE
The purpose of
this Plan is to provide a mechanism under which (a) a
Director can elect to defer the payment of
all or a portion of his or her
Meeting Fees and/or Retainer until his or
her Distribution Date, (b) an Eligible
Employee can elect to defer the payment of
all or a portion of his or her Bonus
and/or Base Salary until his or her
Distribution Date and (c) Post can pay the
amounts deferred as adjusted to track the
investment performance of, in the case
of a Director, Post Stock or, in the case
of an Eligible Employee, the
investment alternative elected by the
Eligible Employee.
Section 2.
DEFINITIONS
2.1 Account --
means the bookkeeping account which shall be maintained by
Post for each Director and for each
Eligible Employee as part of Post's books
and records to show as of any date the
interest, if any, of each Director and
each Eligible Employee in this Plan.
2.2 Adjustment Date --
means August 15, 2005, or such other date selected
by the Special Committee.
2.3 Affiliate --
means (a) Post Apartment Homes (or any successor), (b)
Post Services, Inc. (or any successor) (c)
Post GP Holdings, Inc. (or any
successor) and (d) any other organization
if Post, Post Apartment Homes, Post
Services, Inc. or Post GP Holdings, Inc.
(i) beneficially own more than 20% of
the outstanding voting capital stock of
such organization (if such organization
is a corporation) or more than 20% of the
beneficial interests of such
organization (if such organization is not
a
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corporation) as of the effective date of
this Plan and (ii) possess the power to
direct or cause the direction of the day to
day operations and affairs of such
organization, whether through ownership of
voting securities, by contract, in
the capacity of general partner, manager or
managing member or otherwise as of
the effective date of this Plan.
2.4 Base Salary
-- means an Eligible Employee's base salary which is
payable by Post, Post Apartment Homes or
any other Participating Employer.
2.5 Beneficiary
-- means the person or persons designated as such in
accordance with Section 5.5.
2.6 Board --
means the Board of Directors of Post.
2.7 Bonus -- means an
Eligible Employee's annual, semi-annual, quarterly or
monthly bonus which is payable by Post,
Post Apartment Homes or any other
Participating Employer and which (a) is
called for under a performance incentive
plan maintained by Post, Post Apartment
Homes or any other Participating
Employer from time to time or (b) is
otherwise classified on Post Apartment
Homes' payroll system as a bonus.
2.8 Change in
Control -- means (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 of 1934, as amended (the
"Exchange Act") as in effect on the
effective date of this Plan; (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
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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 effective date of this Plan)
constitute the Board cease for any reason
during such period to constitute at least a
majority of the Board, unless the
election or nomination for election of each
new member of the Board was approved
by vote of at least two-thirds 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 Post Stock
shall be changed, converted, or
exchanged into or for securities of another
organization (other than a merger
with an 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 Post Stock
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 2.7(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 Stock immediately before
the consummation of such transaction,
provided (iii) the percentage described in
Section 2.7(e)(i) of the beneficially owned
shares of the
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successor or survivor corporation and the
number described in Section 2.7(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
Post Stock by the persons described in
Section 2.7(e)(i) immediately before the
consummation of such transaction; provided,
however, that if no event shall
constitute a "Change in Control" under this
Section 2.7 unless the event also
constitutes a "change in the ownership or
effective control of" Post, or in the
"ownership of a substantial portion of the
assets" of Post, all within the
meaning of Code Section 409A(a)(2)(v).
2.9 Code --
means the Internal Revenue Code of 1986, as amended.
2.10
Compensation -- means for an individual who wants to make a
deferral
election under this Plan the greater of (a)
his or her compensation reportable
as "wages, tips and other compensation" on
Form W-2 for the calendar year
immediately preceding the calendar year in
which the individual wants to make a
deferral election or (b) his or her gross
compensation earned to date during the
calendar year in which the individual wants
to make a deferral election, as
determined by Post.
2.11 Director --
means any person (other than a person who is an employee
of Post, Post Apartment Homes or any other
Participating Employer) who has been
elected a member of the Board and, except
for purposes of Section 3, any former
member of the Board for whom an Account is
maintained under this Plan.
2.12 Disability
-- means (a) in the case of a Director or an Eligible
Employee, the Director's or Eligible
Employee's inability to engage in any
substantial
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gainful activity by reason of any medically
determinable physical or mental
impairment which can be expected to result
in death or can be expected to last
for a continuous period of not less than 12
months, as determined by the Special
Committee or (b) in the case of an Eligible
Employee, the Eligible Employee's
receipt of income replacement benefits for
a period of not less than 3 months
under an accident or health plan covering
Post employees by reason of any
medically determinable physical or mental
impairment which can be expected to
result in death or can be expected to last
for a continuous period of not less
than 12 months, as determined by the
Special Committee.
2.13
Distribution Date -- means the earlier of (a) the date as of which
a
Director's status as a Director terminates
or the date as of which an Eligible
Employee's employment by Post, Post
Apartment Homes or any other Participating
Employer terminates, (b) the date of the
Director's or Eligible Employee's
Disability, (c) the date of the Director's
or Eligible Employee's death or (d)
the Effective Date of a Change in
Control.
2.14 Effective
Date of a Change in Control -- means either the date which
includes the "closing" of the transaction
which makes a Change in Control
effective if the Change in Control is made
effective through a transaction which
has a "closing" or the date a Change in
Control is reported in accordance with
applicable law as effective to the
Securities and Exchange Commission (or
otherwise publicly announced as effective)
if the Change in Control is made
effective other than through a transaction
which has a "closing".
2.15 Eligible
Employee -- means each employee of Post, Post Apartment Homes
or any other Participating Employer whose
Compensation equals or
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exceeds $90,000 (or such higher amount that
is required for the Plan to cover
only a "select group of management or
highly compensated employees" (within the
meaning of Department of Labor regulation
Section 2520.104-23), as determined by
the Special Committee) and who is
designated as such by Post and, except for
purposes of Section 3, any individual who
formerly met such requirements for
whom an Account is maintained under this
Plan.
2.16 409A
Requirements -- means Paragraphs (2), (3) and (4) of Code
Section
409A(a) of the Code (and any successor
provisions of the Code) and the
regulations and other guidance issued
thereunder.
2.17 Meeting
Fees -- means the fees which are payable in cash to a Director
exclusively for attending a meeting of the
Board or a meeting of a committee of
the Board.
2.18
Participating Employer -- means Post, Post Apartment Homes,
Post
Services, Inc. and any organization related
to Post or to Post Apartment Homes
which pays, or has an obligation to pay,
all or a part of an Eligible Employee's
Bonus or Base Salary and which effects such
payments through, or which has such
payments processed by, Post Apartment Homes
or Post Services, Inc.
2.19 Post --
means Post Properties, Inc., a Georgia corporation, and any
successor to such corporation.
2.20 Post
Apartment Homes -- means Post Apartment Homes, L.P., a Georgia
limited partnership, and any successor to
such partnership.
2.21 Post Stock
-- means the common stock of Post, par value $.01 per
share.
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2.22 Retainer --
means all fees which are payable in cash to a Director for
services as a member of the Board except
Meeting Fees.
2.23 Special
Committee -- means a committee comprised of the Chief
Executive Officer of Post or his or her
delegate and such other individual or
individuals, if any, who may be appointed
to the committee by the Chief
Executive Officer.
2.24 Specified
Employee -- means a "key employee" (as defined in Code
Section 416(i) without regard to paragraph
(5) thereof) of Post.
Section 3.
DEFERRAL ELECTIONS
3.1 Initial
Election for First-Term Directors. A person who is nominated
for election as a Director (other than a
person who was a Director immediately
before such nomination) shall have the
right at any time before the end of the
30-day period immediately following the
effective date of his or her election to
the Board to elect on the form provided for
this purpose to defer the payment of
all or a portion of his or her Meeting Fees
and/or Retainer which are otherwise
payable after the date his or her deferral
election under this Section 3.1
becomes effective. Any such deferral
election which is made and not revoked
before the end of such 30-day period shall
become effective and irrevocable
immediately after the end of such 30-day
period, and a deferral election once
effective shall remain irrevocable through
the end of the calendar year which
includes the effective date of such
deferral election.
3.2 Annual
Deferral Elections. A person who is a Director or an Eligible
Employee shall have the right before the
beginning of any calendar year to elect
on the form provided for this purpose to
defer the payment of all or a portion
of his or her
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Meeting Fees and/or Retainer or his or her
Bonus and/or Base Salary which are
otherwise earned during such calendar year.
Any election which is made and which
is not revoked before the beginning of such
calendar year shall become
irrevocable on the first day of such
calendar year and shall remain irrevocable
through the end of such calendar year. An
Eligible Employee's election, however,
shall only remain in effect for a calendar
year so long as the Eligible Employee
remains actively employed by Post, Post
Apartment Homes or any other
Participating Employer during such calendar
year, and an Eligible Employee shall
not be treated as so actively employed for
purposes of this Plan if he or she is
on a leave of absence or receiving salary
continuation payments or other
severance benefits other than a leave of
absence designated or approved by the
Special Committee. In addition, a
Director's election shall only remain in
effect for a calendar year so long as the
Director remains a Director.
3.3 Automatic
Election Extension. If a Director or an Eligible Employee has
made a deferral election under either
Section 3.1 or Section 3.2 for any
calendar year and has not revoked such
election before the beginning of any
subsequent calendar year (and, in the case
of a Director, remains a Director or,
in the case of an Eligible Employee,
remains actively employed by Post, Post
Apartment Homes or any other Participating
Employer), such election
automatically shall remain in effect for
such subsequent calendar year and,
further, automatically shall be irrevocable
during such subsequent calendar year
(provided, in the case of a Director, he or
she remains a Director or, in the
case of an Eligible Employee, he or she
remains actively employed by Post, Post
Apartment Homes or any other Participating
Employer during such calendar year).
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3.4 Account
Credits.
(a) Director. The Meeting Fees and/or
Retainer for any calendar year which
a Director elects to defer under this Section 3
