EXHIBIT 10.1
RABBI TRUST AGREEMENT
POST PROPERTIES, INC. DEFERRED COMPENSATION PLAN
FOR DIRECTORS AND ELIGIBLE EMPLOYEES
(a) This Agreement made April 21, 2003 by and between Post
Properties, Inc. (hereinafter called the "Company") and SunTrust Bank (the
"Trustee");
(b) WHEREAS, Company has adopted the Post Properties, Inc.
Deferred Compensation Plan for Directors and Eligible Employees, as amended from
time to time (hereinafter called the "Plan");
(c) WHEREAS, Company has incurred or expects to incur liability
under the terms of the Plan with respect to individuals participating in the
Plan;
(d) WHEREAS, Company wishes to establish a trust (hereinafter
called "Trust") and to contribute to the Trust assets to be held therein,
subject to the claims of Company's creditors in the event of Company's
Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the Plan;
(e) WHEREAS, it is the intention of the parties that this Trust
constitutes an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974;
(f) WHEREAS, it is the intention of Company to make contributions
to the Trust to provide itself with a source of funds to assist it in the
meeting of its liabilities under the Plan;
NOW, THEREFORE, the parties do hereby amend and restate the Trust and
agree that the Trust shall be comprised, held and disposed of as follows:
Section 1. ESTABLISHMENT OF TRUST
(a) Company hereby deposits with Trustee in trust $100, which
became the principal of the Trust to be held, administered and disposed of by
Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be revocable by the
Company; it shall become irrevocable upon the Effective Date of a Change in
Control where:
(1) Change in Control. The term "Change in Control" for
purposes of this Agreement shall mean:
(i) a "change in control" of Company 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;
(ii) 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 Company;
(iii) 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 Company's Board cease
for any reason during such period to constitute at least a
majority of Company'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;
(iv) the shareholders of Company approve any
reorganization, merger, consolidation or share exchange as a
result of which the common stock of Company shall be changed,
converted or exchanged into or for securities of another
organization (other than a merger with a Company affiliate or
a wholly-owned subsidiary of Company) or any dissolution or
liquidation of Company or any sale or the disposition of 50%
or more of the assets or business of Company; or
(v) the shareholders of Company approve any
reorganization, merger, consolidation or share exchange with
another corporation unless (A) the persons who were the
beneficial owners of the outstanding shares of the common
stock of Company 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 (B) the number of shares
of the common stock of such successor or survivor corporation
beneficially owned by the persons described in ss.
1(b)(1)(v)(A) 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 Company common stock immediately
before the consummation of such transaction, provided (iii)
the percentage described in ss. 1(b)(1)(v)(A) of the
beneficially owned shares of the successor or survivor
corporation and the number described in ss. 1(b)(1)(v)(B) 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 Company by the persons described in ss. 1(b)(1)(v)(A)
immediately before the consummation of such transaction.
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(2) 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".
(3) All determinations regarding whether a Change in
Control has occurred shall be made by the Company and
communicated to the Trustee in writing; provided
however, that if any individual who is a participant
in the Plan advises the Trustee in writing that a
Change in Control has occurred, the Trustee shall
take reasonable and appropriate action to determine
if there has been a Change in Control and when the
Effective Date of such Change in Control occurred or
will occur.
(c) The Trust is intended to be a grantor trust, of which Company
is the grantor, within the meaning of subpart E, part I, subchapter J, chapter
1, subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be
held separate and apart from other funds of Company and shall be used
exclusively for the uses and purposes of Plan participants and general creditors
as herein set forth. Plan participants and their beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any assets of the
Trust. Any rights created under the Plan and this Trust Agreement shall be mere
unsecured contractual rights of Plan participants and their beneficiaries
against Company. Any assets held by the Trust will be subject to the claims of
Company's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(e) The Company, in its sole discretion, may at any time or from
time to time make additional deposits of cash or other property in trust with
Trustee to augment the principal to be held, administered and disposed of by
Trustee as provided in this Trust Agreement. Neither Trustee nor any Plan
participant or beneficiary shall have any right to compel such additional
deposits.
Section 2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES.
(a) Company shall deliver to the Trustee a schedule (the "Payment
Schedule"), that indicates the amounts payable in respect of each Participant
(and his or her beneficiaries), the form in which such amount is to be paid (as
provided for or available under the Plan), and the time of commencement for
payment of such amounts.
(1) Except as otherwise provided herein, the Trustee
shall remit an amount to the Company equal to the payment so due, to
the extent that sufficient funds are available. The Company shall pay
such amounts to the Participant through the
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Company's payroll system, make provision for the reporting and
withholding of any federal, state or local taxes that may be required
to be withheld with respect to the payment of benefits pursuant to the
terms of the Plan, and shall pay amounts withheld to the appropriate
taxing authorities.
(2) Notwithstanding paragraph (1) of this Section 2(a),
however, if Trustee agrees to pay Participants directly, the Company
will provide the Trustee with the Participants' current elections
regarding payment of benefits, and the Trustee shall, based on its
records, pay benefits to Participants and make provision for the
reporting and withholding of any federal, state or local taxes that may
be required to be withheld with respect to the payment of benefits
pursuant to the terms of the Plan, and shall pay amounts withheld to
the appropriate taxing authorities or determine that such amounts have
been reported, withheld and paid by Company.
(3) Notwithstanding paragraph (1) of this Section 2(a),
however, in the event of a Change in Control, Trustee shall make
payments directly to the Plan participants and their beneficiaries in
accordance with such Payment Schedule. In that event, the Trustee shall
make provision for the reporting and withholding of any federal, state
or local taxes that may be required to be withheld with respect to the
payment of benefits pursuant to the terms of the Plan and shall pay
amounts withheld to the appropriate taxing authorities or determine
that such amounts have been reported, withheld and paid by Company.
Notwithstanding anything to the contrary in this Agreement, the Trustee
shall have no responsibility or duty to report or withhold any tax of
any kind whatsoever that may be owed by a participant for benefits that
have not been actually distributed from the Trust, including but not
limited to FICA, FUTA or SECA taxes that may accrue upon a
participant's vesting in a benefit under the Plan. Further, the Trustee
shall have no responsibility or duty to determine whether any payment
it makes hereunder constitutes an excess parachute payment subject to
excise taxes under the Code. The Company shall be responsible for
determining the taxability of any payments made hereunder, including
payments made following a Change in Control, and for providing
instructions to the Trustee regarding any required income tax
withholding, and the Trustee shall be entitled to rely on such
instructions to the extent such instructions are reasonable and fair on
their face.
(b) The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plan shall be determined by Company or such
party as it shall designate under the Plan, and any claim for such benefits
shall be considered and reviewed under the procedures set out in the Plan.
(c) Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms of the
Plan. Company shall notify Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in accordance with the
terms of the Plan, Company shall make the balance of each such payment as it
falls due. Trustee shall notify Company where principal and earnings are not
sufficient.
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Section 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY
WHEN COMPANY IS INSOLVENT.
(a) Trustee shall cease payment of benefits to Plan participants
and their beneficiaries if the Company is Insolvent. Company shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Company is unable to pay
its debts as they become due, or (ii) Company is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided
in Section 1(d) hereof, the principal and income of the Trust shall be subject
to claims of general creditors of Company under federal and state law as set
forth below.
(1) The Board of Directors and the Chief Executive
Officer of Company shall have the duty to inform Trustee in writing of
Company's Insolvency. If a person claiming to be a creditor of Company
alleges in writing to Trustee that Company has become Insolvent,
Trustee shall determine whether Company is Insolvent and, pending such
determination, Trustee shall discontinue payment of benefits to Plan
participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of Company's
Insolvency, or has received notice from Company or a person claiming to
be a creditor alleging that Company is Insolvent, Trustee shall have no
duty to inquire whether Company is Insolvent. Trustee may in all events
rely on such evidence concerning Company's solvency as may be furnished
to Trustee and that provides Trustee with a reasonable basis for making
a determination concerning Company's solvency.
(3) If at any time Trustee has determined that Company is
Insolvent, Trustee shall discontinue payments to Plan participants or
their beneficiaries and shall hold the assets of the Trust for the
benefit of Company's general creditors. Nothing in this Trust Agreement
shall in any way diminish any rights of Plan participants or their
beneficiaries to pursue their rights as general creditors of Company
with respect to benefits due under the Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of
this Trust Agreement only after Trustee has determined that Company is
not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee
discontinues the payment of benefits from the Trust pursuant to Section 3(b)
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by Company in lieu of the payments provided
for hereunder during any such period of discontinuance.
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Section 4. INVESTMENT AUTHORITY.
(a) The Trustee shall invest the assets of the Trust in accordance
with investment directions received from the Company, which directions may
include a direction to invest Trust assets in accordance with the deemed
investment selections of Plan participants and beneficiaries. In the absence of
any directions from the Company, the Trustee shall invest the assets of the
Trust in a manner which is consistent with an investment policy communicated to
it in writing by the Company or, if no such policy has been communicated, in a
manner which is appropriate given the purposes for which the Trust has been
established. The Trustee may invest in any investment which it deems
appropriate, subject to the proper investment directions of the Company, and in
furtherance thereof the Trustee may:
(1) Invest Trust assets in common and preferred stocks
(including stock bought and sold on margin); corporate bonds; mutual funds
(including funds for which the Trustee or its affiliates serve as investment
advisor or in any other capacity or for which they receive compensation for
providing investment advisory, custody, transfer agency or other services);
money market accounts; certificates of deposit; debentures; commercial paper;
put and call options; limited partnerships; mortgages; U.S. Government
obligations, including U.S. Treasury notes and bonds; real and personal property
having a ready market; life insurance policies; commodities; savings accounts;
notes; and securities issued by the Trustee or its affiliates as permitted by
law;
(2) Hold cash uninvested and deposit the same with any
banking or savings institution, including its own banking department or the
banking department of an affiliate;
(3) Utilize a general disbursement account, i.e., in the
form of a demand deposit account and/or time deposit account, for distributions
from the Trust, without incurring any liability for payment of interest thereon,
notwithstanding receipt of income with respect to float involving the
disbursement account by it or an affiliate;
(4) Hold contributions in an omnibus account, i.e., in
the form of a demand deposit account and/or time deposit account, maintained by
it or an affiliate for up to three (3) business days (or such longer period as
may result due to circumstances beyond its control), without liability for
interest thereon. (The Company acknowledges that any float earnings associated
with the assets held in such omnibus accounts are retained by the Trustee as
part of its compensation for performing benefit payment services);
(5) Join in or oppose the reorganization,
recapitalization, consolidation, sale or merger of corporations or properties,
including those in which it or its affiliates are interested as Trustee, upon
such terms as it deems advisable;
(6) Hold investments in nominee or bearer form;
(7) Exercise all ownership rights including the voting of
proxies and the exercise of tender offers but only with respect to assets for
which the Company has not provided investment directions;
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(8) Apply for and procure from an insurance company as an
investment of the Trust such contracts on the life of any Participant as the
Company shall deem proper; to exercise at any time or from time to time,
whatever rights and privileges may be granted under such contracts; and collect,
receive, and settle for the proceeds of any such contracts as and when entitled
to do so under the provisions thereof. The Trustee shall not have the power to
invest assets of the Trust in life insurance contracts unless specifically
directed to do so by the Company, and the Company shall be solely responsible
for selecting the insurance company(ies) and the policy(ies) in which Trust
assets are to be invested. Such direction shall include but not be limited to
the term, price and the insurance company from which the policy should be
purchased. The Trustee shall be the sole owner and named beneficiary of any
policies purchased hereunder, and no Participants or beneficiaries shall have
any interest whatsoever in such policies. If Trust assets are inadequate to pay
all premiums on all insurance policies, the Trustee may, at the direction of the
Company, borrow against the policies in order to pay such premiums.
The Trustee may invest in securities (including stock or rights to
acquire stock) or obligations issued by the Company. All rights associated with
assets of the Trust shall be exercised by the Trustee or the person designated
by the Trustee, and shall in no event be exercisable by or rest with Plan
participants, except that voting and dividend rights with respect to Trust
assets will be exercised by Company. The Company shall have the right at any
time, and from time to time in its sole discretion, to substitute assets of
equal fair market value acceptable to the Trustee for any asset held by the
Trust. This right is exercisable by the Company in a nonfiduciary capacity
without the approval or consent of any person in a fiduciary capacity.
Section 5. DISPOSITION OF INCOME.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
Section 6. ACCOUNTING BY TRUSTEE.
The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be
made, including such specific records as shall be agreed upon in writing between
the Company and the Trustee. Within 60 days following the close of each calendar
year and within 60 days after the removal or resignation of the Trustee, the
Trustee shall deliver to the Company a written account of its administration of
the Trust during such year or during the period from the close of the last
preceding year to the date of such removal or resignation, setting forth all
investments, receipts, disbursements and other transactions effected by it,
including a description of all securities and investments purchased and sold
with the cost or net proceeds of such purchases or sales (accrued with interest
paid or receivable being shown separately) and showing all cash, securities and
other property held in the Trust as the end of such year or as of the date of
such removal or resignation, as the case may be.
Section 7. RESPONSIBILITY OF TRUSTEE.
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(a) Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided however, that
Trustee shall incur no liability to any person for an action taken pursuant to a
direction, request or approval given by the Company which is contemplated by,
and in conformity with, the terms of the Plan or this Trust and is given in
writing by Company. In the event of a dispute between Company and a party,
Trustee may apply to a court of competent jurisdiction to resolve the dispute.
(b) If Trustee undertakes any litigation arising in connection
with this Trust, Company agrees to indemnify Trustee against Trustee's costs,
expenses and liabilities (including without limitation, attorneys' fees and
expenses) relating thereto and to be primarily liable for such payments. If the
Company does not pay such costs, expenses and liabilities in a reasonably timely
manner, Trustee may obtain payment from the Trust.
(c) Trustee may consult with legal counsel (who may also be
counsel for the Company generally) with respect to any of its duties or
obligations hereunder.
(d) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the Trust,
Trustee shall have no power to name a beneficiary of the policy other than the
Trust, to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee, or to loan to any person the
proceeds of any borrowing against such policy.
(e) However, notwithstanding the provisions of Section 7(d) above,
Trustee may loan to Company the proceeds of any borrowing against an insurance
policy held as an asset of the Trust.
(f) Notwithstanding any powers granted to Trustee pursuant to this
Trust Agreement or to applicable law, Trustee shall not have any power that
could give this Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
Section 8. COMPENSATION AND EXPENSES OF TRUSTEE.
The Trustee shall be paid compensation for its services hereunder in
such amounts as may be agreed to in writing by the Company and the Trustee. All
reasonable investment and administrative expenses incurred by the Trustee in
performance of its duties in accordance with the Plan and this Agreement and all
other reasonable and proper charges and disbursements shall be paid from the
Trust, unless paid by the Company.
Section 9. RESIGNATION AND REMOVAL OF TRUSTEE.
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(a) Trustee may resign at any time by written notice to the
Company, which shall be effective 60 days after receipt of such notice unless
Company and Trustee agree otherwise.
(b) Trustee may be removed by the Company on 60 days notice or
upon shorter notice accepted by the Trustee.
(c) Upon resignation or removal of Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within 60 days after receipt of notice
of resignation, removal or transfer, unless Company extends the time limit.
(d) If Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 10 hereof, by the effective date of
resignation or removal under paragraph (a) or (b) of this section. If no such
appointment has been made, Trustee may apply to a court of competent
jurisdiction for appointment of a successor or for instructions. All expenses of
Trustee in connection with the proceeding shall be allowed as administrative
expenses of the Trust.
Section 10. APPOINTMENT OF SUCCESSOR.
(a) If Trustee resigns or is removed in accordance with Section
9(a) or (b) hereof, Company may appoint any third party, such as a bank, trust
department or other party that may be granted corporate trustee powers under
state law, as a successor to replace Trustee upon resignation or removal. The
appointment shall be effective when accepted in writing by the new trustee, who
shall have all of the rights and powers of the former trustee, including
ownership rights in the Trust assets. The former trustee shall execute any
instrument necessary or reasonably requested by the Company of the successor
trustee to evidence the transfer.
(b) The successor trustee need not examine the records and acts of
any prior trustee and may retain or dispose of existing Trust assets subject to
the provisions of Sections 7 and 8 hereof. The successor trustee shall not be
responsible for and Company shall indemnify and defend the successor trustee
from any claim or liability resulting from any action or inaction of any prior
trustee of from any other past event, or any condition existing at the time it
becomes successor trustee.
Section 11. AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written instrument
executed by Trustee and Company.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plan unless sooner revoked in accordance with Section 1(b)
hereof. Upon termination of the Trust any assets remaining in the Trust shall be
returned to the Company.
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(c) Upon written approval of participants and beneficiaries
entitled to payment of benefits pursuant to the terms of the Plan, Company may
terminate this Trust prior to the time all benefit payments under the Plan have
been made. All assets in the Trust at termination shall be returned to the
Company.
Section 12. MISCELLANEOUS.
(a) Any provision of this Trust Agreement prohibited by law shall
be ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of Georgia.
Section 13. EFFECTIVE DATE.
The effective date of this Trust Agreement shall be January 1, 2003.
POST PROPERTIES, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: President and Chief
Executive Officer
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SUNTRUST BANK
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior Vice President
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