THOMAS H. LOWDER
NONCOMPETITION AGREEMENT
THIS
NONCOMPETITION AGREEMENT (this “Agreement”) is entered
into as of May 4, 2007 by and among Colonial Realty Limited
Partnership, a Delaware limited partnership (the “Operating
Partnership”), Colonial Properties Trust, an Alabama real
estate investment trust and the general partner of the Operating
Partnership (the “Trust”; the Operating Partnership and
the Trust are sometimes hereinafter referred to collectively as the
“Companies”), and Thomas H. Lowder
(“Mr. Lowder”).
WHEREAS,
Mr. Lowder entered into that certain Employment Agreement
dated as of September 29, 1993, with the Trust, the Operating
Partnership and certain other entities named therein (the Trust,
together with the Operating Partnership and its other direct and
indirect subsidiaries, and its or their successors, is referred to
herein as the “Company”) pursuant to which, among other
things, the Companies agreed to employ Mr. Lowder, and
Mr. Lowder agreed to be employed by the Companies, in
accordance with the terms thereof, including the title, duties and
compensation set forth therein (the “Employment
Agreement”);
WHEREAS,
on April 26, 2006, in connection with certain management
changes approved by the Board of Trustees of the Trust, including
certain changes in the title, duties and compensation of
Mr. Lowder, the Company and Mr. Lowder mutually agreed
(i) to certain modifications to the Employment Agreement to
reflect the changes in title, duties and compensation approved by
the Board of Trustees of the Trust on April 26, 2006, and
(ii) to terminate the Employment Agreement, as so modified,
effective upon the Trust and Mr. Lowder entering into a
non-competition agreement; and
WHEREAS,
the Trust and Mr. Lowder agreed, at the time and in
consideration of the changes in the title, duties and compensation
of Mr. Lowder described above, that Mr. Lowder would
enter into this agreement not to engage in competition with the
Company and to refrain from taking certain other actions pursuant
to the terms and conditions hereof in an effort to protect the
Company’s legitimate business interests and goodwill and for
other business purposes.
NOW,
THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the parties hereto agree as follows:
1.
Term . Mr. Lowder agrees with the Company that during
the period in which Mr. Lowder serves as Chairman of the Board of
the Trust (or otherwise as an employee of the Company), and for two
years thereafter (the “Restricted Period”),
Mr. Lowder shall not engage in any way, directly or
indirectly, in the acquisition, operation, development, management,
leasing or disposition of any real property or any improvements
thereon, other than in his capacity as a director, trustee, officer
or equity owner of the Company, except with the express written
consent of the Company, which consent shall be considered upon the
request of Mr. Lowder if the Mr. Lowder’s engagement in
the proposed activity would present no adverse impact on the
operations or plans of the Company; provided ,
however , that this Section 1 shall not apply
to:
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i.
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Mr. Lowder’s activities
with respect to any property listed in Appendix A
attached hereto to the extent that such activities are similar to
or consistent with those currently conducted by Mr. Lowder on
behalf of such property, or are reasonably necessary to avoid a
breach by Mr. Lowder of his fiduciary duty to the owner or
other owners of such property or to restore, rebuild or maintain
the value of such property.
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ii.
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Mr. Lowder’s residence or
any other property intended for personal use.
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iii.
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Mr. Lowder’s activities
with respect to any property owned, developed, constructed,
operated, managed or leased, now or in the future, by The Colonial
Company, or any of its subsidiaries, other than as provided in
paragraph 2 of this Agreement. The parties recognize that
Mr. Lowder has been a substantial owner and director of The
Colonial Company and certain of its subsidiaries, since before the
formation of the Companies, that Mr. Lowder will continue to
perform those roles in the future, and that The Colonial Company
and its subsidiaries may be or become involved in the ownership,
development, construction, operation, management or leasing of real
properties in competition with the Companies. This Agreement shall
not prohibit any activities of The Colonial Company or any of its
subsidiaries. Nor shall this Agreement prohibit the activities of
Mr. Lowder in his capacity as an owner, director, officer or
employee of The Colonial Company and its subsidiaries, other than
as provided in paragraph 2 of this Agreement.
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iv.
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The
acquisition, operation, development, construction, management,
leasing or disposition of real property by any entity in which
Mr. Lowder owns or acquires an equity interest (including an
interest as a general partner) as a passive investor having no
managerial or similar role with respect to such
property.
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v.
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Mr. Lowder’s acquisition
of any property or any interest in property by gift or
inheritance.
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vi.
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The
direct or indirect ownership by Mr. Lowder of up to five
percent of the outstanding equity interests of any public
company.
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vii.
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During the two-year
“tail” period included in the Restricted Period (the
“Tail Period”), the restrictions set forth in this
Section 1 shall apply only within those Metropolitan
Statistical Areas (“MSA’s”) within certain
“States” (defined hereafter) which are ranked in the
top quartile of MSA’s nationally by population and in which
the Company also owns or leases at least ten (10) Properties
as of the date of Mr. Lowder’s termination of employment
with the Company (the “Restricted Areas”) and then only
to those real estate market sectors in which the Company owns or
leases within the MSA at least ten (10) Properties as of the date
of Mr. Lowder’s termination of employment with the
Company. An “ MSA ” shall be an area defined as
a Metropolitan Statistical Area by the Office of Management and
Budget of the United States in its promulgations issued and
published in the Federal Register and in effect at the relevant
point in time. A “ Property ” shall mean any
parcel or group of related parcels of real estate (whether or not
contiguous) that is recognized by the Company in its reports to its
shareholders as being an individual and functionally discrete
property owned or managed by the Company. A “sector”
shall mean a category of commercial real estate identified by the
Company in SEC reports as a category in which the Company owns,
operates, develops, leases or manages property, including but not
limited to the retail, multifamily, office, and industrial sectors.
For purposes of this Agreement, any Property that includes parcels
within more than one sector shall be deemed to be a Property within
each such sector. The “ States ” shall include
Alabama, Arizona, Florida, Georgia, Maryland, Mississippi, Nevada,
New Mexico, North Carolina, South Carolina, Tennessee, Texas and
Virginia, and any other state containing an MSA in which the
Company owned or leased at least 10 properties as of the date of
Mr. Lowder’s termination of employment with the
Company.
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