Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into this 27th day of October, 2021 (the “Effective Date”), is entered into by and between Aimco Development Company, LLC (“AIMCO” or “Company”) and Wes Powell (“Executive”).
RECITALS:
WHEREAS, AIMCO wishes to continue to employ Executive upon the terms and conditions hereinafter set forth and Executive wishes to accept such continued employment; and
WHEREAS, it is desirable that this Employment Agreement (the “Agreement”) shall contain the exclusive terms and conditions governing the employment of Executive;
NOW THEREFORE, in consideration of the mutual promises contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, AIMCO and Executive mutually agree as follows:
Executive shall devote substantially his full time, ability and attention to the business of AIMCO, its subsidiaries and affiliates during the Agreement Term. While employed, Executive shall have no other employment with, nor receive any compensation from, any other person, firm or corporation without the prior authorization of the AIMCO Board of Directors. Executive, with prior Board approval, will not be precluded from devoting a reasonable amount of time to serving as a director or committee member of a for-profit or non-profit organization. Executive is not precluded from devoting a reasonable amount of time to speaking engagements, engaging in professional organizations and program activities, charities, and such similar activities. Executive may retain any compensation or benefits received as a result of any such outside activities, and AIMCO shall not reduce Executive’s compensation by the amount of any such compensation or benefits.
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The Severance Payment will be paid in one lump sum payment, less required withholdings, on the 50th day following the Date of Termination, subject to the requirements of Sections E.7 and F. below.
Severance Period.
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The Enhanced Severance Payment will be paid in one lump sum payment, less required withholdings, on the 50th day following the Date of Termination, subject to the requirements of Sections E.7 and F. below.
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contrary, in the event it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Code Section 280G(b)(2)) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise would be subject to the excise tax imposed by Code Section 4999, then Executive shall be entitled to receive (i) the greatest amount so that no portion the payments shall be an excess parachute payment (the “Limited Amount”), or (ii) if the amount of payments otherwise paid or provided (without regard to clause (i)) reduced
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by all taxes applicable thereto (including, for the avoidance of doubt, the excise tax imposed by Code Section 4999) would be greater than the Limited Amount reduced by all taxes applicable thereto, then the amount of payments shall be the amount otherwise payable. Any reductions described in the preceding sentence shall be done in the manner that is least economically disadvantageous to Executive. Where the decision to cut back between two (2) amounts is economically equivalent, but the amounts are payable at different times, the amounts will be reduced on a pro rata basis.
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For purposes of this Agreement, if Executive takes any of the following actions Executive shall be engaged in “Competition”: engaging in or carrying on, directly or indirectly, any enterprise, whether as an advisor, principal, agent, partner, officer, director, employee, stockholder or other form of investor holding more than one percent (1%) of the outstanding shares of, associate or consultant to any person, partnership, corporation or any other business entity that competes with the Company and is set forth on a written list presented to Executive by the Compensation and Human Resources Committee simultaneously with the execution hereof, and attached hereto as Exhibit B, and agreed thereto by Executive as evidenced by execution of this Agreement. The entities so listed, as amended pursuant to the following sentence, shall be the sole competitors of the Company (collectively, the “Competitors” and individually, a “Competitor”). Such list of the Competitors may be amended by the Board in good faith based on the same criteria as the initial list (except to the extent the Company’s business has changed or expanded) at any time up to one hundred eighty (180) days prior to Executive’s Date of Termination by written notice to Executive. Executive may at any time request, in writing, that the Company confirm whether any such Competitor is, on the date of such request, still a Competitor, and the Company’s Senior Human Resources Executive will respond within ten (10) business days to such an inquiry in writing.
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To AIMCO: 4582 S. Ulster Street, Suite 1450 Denver CO 80237
Attn: General Counsel
To Executive: At the most recent address on file with AIMCO Human Resources with a copy
(not constituting notice) to: Williams & Connolly LLP, 725 Twelfth Street, NW,
Washington, DC 20005,
Attn: Deneen C. Howell, Esq.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement.
EXECUTIVE
Wesley Powell
EXECUTIVE (Print Name)
/s/ Wesley Powell
EXECUTIVE (Signature)
AIMCO DEVELOPMENT COMPANY, LLC
/s/ Jennifer Johnson
Aimco Development Company, LLC
Exhibit A – Release
Exhibit B – Competitors
Exhibit C – Prohibited Investment Entity
Exhibit D – Arbitration Agreement
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Exhibit A
SEPARATION AGREEMENT
The purpose of this Separation Agreement (this “Agreement”) is to confirm the terms regarding your separation of employment from an affiliate or subsidiary of Apartment Investment and Management Company (“Aimco” or the “Company”). As more fully set forth below, the Company desires to provide you with certain benefits in exchange for certain agreements by you. Capitalized terms used and not otherwise defined in this Agreement shall carry the meanings ascribed to them in that certain Employment Agreement, dated October , 2021, entered into by and between the parties hereto (the “Employment Agreement”).
You acknowledge that except for (i) the specific financial consideration set forth in this Agreement, and (ii) any Accrued Rights, which will be paid to You and otherwise provided in accordance with the terms of Your Employment Agreement, You are not entitled to any additional consideration from the Company or any of the Company Parties.
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Americans With Disabilities Act and any similar local, state, federal or foreign statute or law.
Denver, Colorado. In addition, You may rescind Your assent to this Agreement within seven (7) days after You sign it. To do so, You must deliver a notice of rescission to E Jennifer Johnson, Executive Vice President, Chief Administrative Officer and General Counsel. To be effective, such rescission must be hand delivered or postmarked within the seven (7) day period and sent by certified mail, return receipt requested, to Jennifer Johnson, Executive Vice President, Chief Administrative Officer and General Counsel, 4582 South Ulster Street Parkway, Suite 1450, Denver, Colorado 80237. By executing this Agreement, You are acknowledging that You have been afforded sufficient time to understand the terms and effects of this Agreement, that Your agreements and obligations hereunder are made voluntarily, knowingly and without duress, and that neither any of the Company Parties nor their agents or representatives have made any representations inconsistent with the provisions of this Agreement.
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Nothing in this Agreement is intended to, or shall, interfere with Your rights under federal, state, or local civil rights or employment discrimination laws to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of this Agreement. You shall not, however, be entitled to any relief, recovery, or monies in connection with any such action or investigation brought against the Company, regardless of who filed or initiated any such complaint, charge, or proceeding.
For the purposes hereof, the term “Claims” shall mean any and all claims, demands, debts, liens, agreements, promises causes of action, liability, damages, costs, and expenses of any kind and nature whatsoever, whether arising under state, federal or local law, administrative rule or regulation, common law, contract, tort, or in equity, known or unknown, whether accrued, contingent, inchoate or otherwise, suspected or unsuspected, raised affirmatively or by way of defense or offset, including, without limitation any consequences flowing, resulting, or which might result therefrom.
For the purposes hereof, the term “Company Parties” shall mean Aimco, Aimco Development Company, LLC, Aimco OP L.P., and any and all of each of their subsidiaries, affiliates, divisions, acquiring or ownership entities, parent, associated or allied companies, corporations, firms, partnerships, management companies, or organizations, purchasers of assets or stock, investors, joint ventures, and any related entities (including any management company and its subsidiaries and affiliates), and the shareholders (past and present), successors, predecessors, counsel, assigns, board members, insurers, officers, partners, directors, joint venturers, managers, members, fiduciaries, trustees, agents, representatives, counsel or employees thereof jointly and severally, in both their personal and corporate capacities. The Company Parties are hereby made third party beneficiaries of this Agreement. This Agreement contains the entire agreement and understanding by and between You and Company with respect to matters set forth herein. No change, amendment or modification herein hereto shall be valid or binding unless the same is in writing and signed by the party intended to be bound. No waiver of any provision or any particular breach or default of this Agreement shall be valid unless the same is in writing and signed by the party against whom such waiver is sought to be enforced; moreover, no valid waiver of any provision or any particular breach or default of this Agreement at any time shall be deemed a waiver of any other provision or prior or subsequent breach or default of this Agreement at such time or be deemed a valid waiver of such provision at any other time. No failure or delay in exercising any right under this Agreement shall operate as a waiver thereof or of any other right, and the failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of any original violation. No single or partial exercise by any party of any right, power or remedy will preclude any other or future exercise thereof or of any other remedy. A determination that any provision of this Agreement is prohibited by law or unenforceable shall not affect the validity or enforceability of any other provision of this Agreement.
Any controversy, dispute, or Claim of any nature arising out of, in connection with, or in relation to the interpretation, performance or breach of this Agreement, including any Claim based on contract, tort or statute, shall be resolved at the written request of any party to this Agreement by binding arbitration in accordance with the terms of the Arbitration Agreement attached to Your Employment Agreement as Exhibit B.
No provision of this Agreement shall be interpreted or construed against any party because that party or its legal representative drafted that provision. The captions and headings of the Sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole, (b) references to one gender include all genders, (c) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (d) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” (e) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole, and (f) the terms “dollars” and “$” refer to United States dollars. Any accounting term used herein without specific definition shall have the meaning ascribed thereto by U.S. generally accepted accounting principles. Section, subsection, exhibit and schedule references
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are to this Agreement as originally executed unless otherwise specified. Any reference herein to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. Any reference herein to any person shall be deemed to include the heirs, personal representatives, successors and permitted assigns of such person.
This Agreement shall be governed by, and interpreted in accordance with, the laws of the state of Colorado, including its statute of limitations, without regard to any otherwise applicable principles of conflict of laws or choice of law rules (whether of the State of Colorado or any other jurisdiction) that would result in the application of the substantive or procedural laws or rules of any other jurisdiction. This Agreement may be executed by facsimile or the electronic exchange of .pdf copies and in any number of counterparts; all such counterparts shall be deemed to constitute one and the same instrument, and each counterpart (whether an original, a facsimile, a .pdf or other copy) shall be deemed an original hereof. This Agreement shall not be valid unless accepted in writing, by You, as evidenced by Your signature below, and returned on or before [Insert 45 days from Separation effective date].
If the foregoing correctly sets forth our understanding, please sign, date and return the enclosed copy of this Agreement to Jennifer Johnson at Aimco.
CONFIRMED, CONSENTED AND AGREED TO BY YOU:
___________________________ Date: ______________________
[INSERT NAME]
By: ______________________ Date: ______________________
Jennifer Johnson
Executive Vice President, Chief Administrative Officer and General Counsel
Aimco
4582 S. Ulster St Pkwy, #1450
Denver, CO 80237
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EXHIBIT B & C
The following entities, and the parent, subsidiaries, and affiliates of each, are deemed to be Competitors of Aimco and Prohibited Investment Entities:
Clipper Realty Inc.
Five Point Holdings, LLC
Forestar Group Inc.
Howard Hughes Corp.
Independence Realty Trust, Inc.
Centerspace
JBG SMITH Properties
Mack-Cali Realty
St. Joe Company Stratus Properties Inc.
Tejon Ranch Co.
Washington REIT
B. Any other company, partnership, or business entity engaged in the investment and significant development of multi-family real estate with a market capitalization between $0.75 billion and $4 billion.
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Exhibit D
ARBITRATION AGREEMENT
THIS ARBITRATION AGREEMENT (this "Agreement") is entered into by and between Wes Powell ("Employee") and Aimco Development Company, LLC ("Aimco"), each of which are sometimes collectively referred to herein as the "Parties" and individually as a "Party." Except as otherwise stated below, this Agreement supplants and replaces any versions of the Arbitration Agreement between Employee and Aimco executed prior to the date of Employee’s signature on this Agreement.
BINDING ARBITRATION ONLY, and NO COURT ACTION MAY BE BROUGHT BY EMPLOYEE
or the Company to resolve any Claim. The determination of the arbitrator shall be final and binding. The remedies available in such arbitration shall in all respects be the same as those available in a court of law. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Arbitration under this Agreement shall be governed by and interpreted according to the Federal Arbitration Act.
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shall bear its own costs, expenses, and attorneys’ fees in such arbitration and (ii) at Employee’s option, the fees and costs of the arbitration charged by the arbitrator either (a) shall be shared equally by the Parties, (b) shall be paid solely by the Company, or (c) shall be paid solely by Employee. The arbitrator shall enforce any and all statutes of limitation or other time limitations in any way applicable to any Claim, to include time limitations resulting from a failure to timely exhaust administrative remedies. The arbitrator also shall have the authority to provide for reimbursement of legal fees or costs, in whole or in part, as part of any remedy or award in accordance with applicable law or in the interests of justice. Upon the close of the arbitration, the arbitrator shall issue a written reasoned decision, which shall include a summary of the claims, issues, and relief requested, and the reasons for the results reached in the case.
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Employee confirms that Employee has had time to read this Agreement and ask anyquestions Employee had about the Agreement prior to signing it. Employee’s signature below confirms the fact that Employee has read, understands, and voluntarily agrees to be legally bound to all of the above terms. Employee further understands that this Agreement requires Employee and the Company to arbitrate any and all disputes that arise out of Employee’s employment
(subject to exceptions outlined above).
Employee further acknowledges that Employee’s electronic signature has the validity and effect of a handwritten signature.
IN WITNESS WHEREOF, this Agreement is signed effective as of the date below.
EMPLOYEE:
By ________________ Date: _____________
Printed Name: ____________________________
AIMCO DEVELOPMENT COMPANY, LLC:
By:________________ Date:________________
Printed Name:____________________________
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