WESTON M. ANDRESS
SEVERANCE AGREEMENT AND GENERAL RELEASE
THIS SEVERANCE
AGREEMENT AND GENERAL RELEASE (this “Agreement”),
by and among COLONIAL PROPERTIES TRUST, COLONIAL PROPERTY
SERVICES, INC. and WESTON M. ANDRESS (the
“Employee”), an individual, is hereby entered into as
of the 30th day of December, 2008.
1. Employee
hereby resigns from employment with Colonial Properties Trust
(“Colonial”), and its subsidiaries and affiliates, and
resigns from all the offices, directorships (including as a trustee
of Colonial) and other positions (if any) Employee holds with
Colonial and all of its respective directly and indirectly owned
subsidiaries, affiliates and entities in which it has joint venture
or other interests, effective as of December 30, 2008
(the "
Resignation Date
" ). After the Resignation Date, Employee shall
not be entitled to the receipt of any further payments or benefits
from Colonial other than those expressly provided for in this
Agreement and the Consulting Agreement dated the same date as this
Agreement. Colonial hereby accepts on behalf of Colonial and its
directly and indirectly owned subsidiaries, affiliates, joint
ventures and other entities such resignation.
2. Employee
shall be paid the unpaid portion of Employee’s base salary
through the Resignation Date, payable no later than the next
regular payroll period following the Resignation Date.
(a) Employee’s
benefits shall terminate as of the Resignation Date in accordance
with the terms of Colonial’s benefits plans and its standard
policies and procedures, and Employee shall not be entitled after
the Resignation Date to participate in or accrue benefits under any
plan of Colonial relating to stock options, stock purchases,
restricted stock, performance shares, pension, thrift, profit
sharing, employee stock ownership, group life insurance, medical
coverage, disability insurance, education, housing allowance, car
allowance, or other retirement or employee benefits, except as
expressly provided in this Agreement or applicable law; provided,
however, that nothing herein shall affect Employee’s right to
receive his vested and accrued benefits under the Company’s
401(k) plan, his right to continued health care coverage pursuant
to the COBRA and his conversion rights, if any, under the
Company’s disability or life insurance plans. Employee
acknowledges that he and his dependants have no rights to continued
benefits under Colonial’s group health plans other than those
established pursuant to COBRA. Further, Employee acknowledges that
if he elects COBRA continuation coverage with respect to
Colonial’s group health plans, Colonial will charge a premium
for such coverage in accordance with the limitations of
COBRA.
(b) Colonial
shall reimburse Employee for appropriate and reasonable expenses
incurred on or before the Resignation Date, if any, in accordance
with its applicable policies and procedures. Employee shall submit
such requests for reimbursement within 30 days of the
Resignation Date, and Colonial will reimburse Employee as promptly
as practicable after the submission of such requests, but in any
event, within 60 days of their submission.
(c) In
consideration of Employee’s execution of this Agreement and
compliance with its terms, Colonial agrees to pay Employee One
Million Two Hundred Fifty Thousand Dollars ($1,250,000), less
applicable ordinary payroll deductions (the “Severance
Payment”). Such amount shall be paid no later than
December 31, 2008. In the event Employee subsequently
exercises his revocation right pursuant to Section 6 below,
Employee shall immediately repay the Severance Payment to the
Company.
(d) The
Company agrees to pay to Employee any annual incentive award for
his service during 2008 as awarded by the Executive Compensation
Committee (the “Compensation Committee”) of the Board
of Trustees of the Company under the terms of the Company’s
existing 2008 annual non-equity incentive compensation program (the
“2008 Program”), in cash, to the extent provided in the
next sentence. Any amount payable under the immediately preceding
sentence: (i) shall be paid in cash promptly following the
determination of awards for executive officers under the 2008
Program by the Compensation Committee and (ii) shall equal the
cash
1
value of the
amount, if any, awarded to the Company’s Chief Executive
Officer (i.e., the person serving as Chief Executive Officer for
the majority of the 2008 calendar year) for his service during 2008
under the 2008 Program (it being understood that Employee shall not
receive any annual incentive award for his service during 2008
under the 2008 Program unless the Compensation Committee awards an
annual incentive award to such Chief Executive Officer for his
service during 2008 under the 2008 Program). The Company shall
further reimburse Employee for legal fees not to exceed Ten
Thousand Dollars ($10,000).
(e) Any
payments under this Agreement that are deemed to be deferred
compensation subject to the requirements of Section 409A
(“Section 409A”) of the Internal Revenue Code of
1986, as amended, are intended to comply with the requirements of
Section 409A. To the extent that there is a material risk that
any payments under this Agreement may result in the imposition of
an additional tax on Employee under Section 409A, Colonial
will reasonably cooperate with Employee to amend this Agreement and
related documents such that such documents and payments thereunder
comply with Section 409A without materially changing the
economic value of this Agreement or the arrangements hereunder to
either party.
3. All share
option, restricted share, performance share and other equity awards
held by Employee shall be forfeited and terminate as of the
Resignation Date regardless of the terms in the award agreements
governing such equity awards. Colonial and Employee agree that the
provision of services pursuant to the Consulting Agreement will not
be considered to be services for purposes of any equity award
agreement held by Employee immediately prior to the Resignation
Date.
4. In
consideration of the payment(s) and terms set forth in paragraph
two, Employee agrees to hereby release, acquit, discharge and hold
harmless Colonial, Colonial Properties Trust CRT, Inc., Colonial
Properties Services, Inc., Colonial Construction Services, LLC,
Colonial Realty Limited Partnership, and all of their respective
parent(s), related or affiliated companies, members, subsidiaries,
assigns, predecessors or transferees, and all of the present and
former directors, officers, employees, servants, agents, partners
and members of each of those entities (collectively
“Colonial”), from any and all claims whatsoever of any
kind or nature, known or unknown, including but not limited to all
claims arising out of or in any way connected with the employment
of Employee by Colonial, or service as a trustee of Colonial,
including but not limited to any and all claims for pay, benefits,
damages, or any other relief which were, might or could have been
asserted by Employee in any court or before any administrative
agency under any of the following federal, state or local statutes,
laws, rules and/or ordinances:
(a) the
Civil Rights Act of 1991; Title VII of the Civil Rights Act of
1964; the Civil Rights Act of 1866; the Americans with Disabilities
Act; the Age Discrimination in Employment Act; the Rehabilitation
Act of 1973; the Family and Medical Leave Act; the Employee
Retirement Income Security Act of 1974; the Equal Pay Act; the Fair
Labor Standards Act; the Vietnam Era Veterans’ Readjustment
Assistance Act; the Uniformed Services Employment and Reemployment
Rights Act of 1994; the Worker Adjustment and Retraining
Notification Act; the Fair Credit Reporting Act; the Immigration
Reform and Control Act of 1986; the Occupational Safety and Health
Act of 1970; the Employee Polygraph Protection Act; and any
amendments to any of the foregoing;
(b) the
North Carolina Equal Employment Practices Act, N.C. Gen. Stat.
§ 143-422.1 et seq.; the North Carolina Communicable Disease
Law, N.C. Gen. Stat. § 130A-148; the North Carolina Persons
With Disabilities Protection Act, N.C. Gen. Stat. §§
168A-1 et seq.; the North Carolina Discrimination on the Basis of
Sickle Cell Trait Law, N.C. Gen. Stat. § 95-28.1; the North
Carolina Genetic Testing Law, N.C. Gen. Stat. § 95-28.1A; the
North Carolina Smokers’ Rights Law, N.C. Gen. Stat. §
95-28.2; the North Carolina Human Relations Commission Bias Law,
N.C. Gen. Stat. § 143B-391; the North Carolina Retaliatory
Employment Discrimination Law, N.C. Gen. Stat. §§ 95-240
et seq.; the North Carolina Parental Leave for School Involvement
Law, N.C. Gen. Stat. § 95-28.3; N.C. Gen. Stat. §
14-357.1 (prohibition on requiring payment of medical examination
as condition of employment); N.C. Gen. Stat. §§ 14-355 et
seq. (prohibition of blacklisting); N.C. Gen. Stat. §§
66-57.1 -.2 (employee’s right to inventions); N.C. Gen. Stat.
§§ 95-241 et seq. (workers’ compensation
retaliation); N.C. Gen. Stat. § 96-15.1(a)-(d) (adverse action
for participation in proceeding under Employment Security Act);
N.C. Gen. Stat. § 9-32 (adverse action because of jury
service); the North Carolina Private Protective Services Act, N.C.
Gen. Stat. §§ 74C-1 et seq.; the North Carolina National
Guard Reemployment Rights Act, N.C. Gen. Stat. §§
127A-201
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et seq.; N.C.
Gen. Stat. §§ 95-230 et seq. (drug testing); N.C. Gen.
Stat. § 1-539.12 (job reference immunity); N.C. Gen. Stat.
§§ 168-1 et seq. (discrimination against handicapped
persons in public places); the North Carolina Wage and Hour Act,
N.C. Gen. Stat. §§ 95-25.1 et seq.; N.C. Gen. Stat.
§§ 95-78 — 94 (discrimination based on association
or non-association with labor union); N.C. Gen. Stat. § 95-151
(discrimination under Occupational Safety and Health Act of North
Carolina); and any amendments to any of the foregoing;
and
(c) any
other federal, state, or local statute, regulation, ordinance, or
common law, including without limitation the United States
Constitution, the Constitution of the State of North Carolina, and
any law related to contracts, torts, discrimination, terms and
conditions of employment, employee benefits or termination of
employment, to the full extent that such a release is allowed by
law.
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