SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit
99.1
SEPARATION AGREEMENT AND
GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL
RELEASE, is made this 20th day of March, 2008 (this “Agreement”), between
Lexington Realty Trust, its subsidiaries and affiliates located at Xxx Xxxx
Xxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000-0000 (collectively, the “Company”), and
Xxxxxxx X. Xxxxxx, having an address of c/o Winthrop Realty Partners, L.P., Two
Xxxxxxx Xxxxx, Xxxx X, Xxxxx 000, Xxxxxxx, Xxx Xxxx 00000 (“Executive”).
In
consideration of the mutual promises and releases contained in this Agreement,
the parties to this Agreement hereby agree as follows:
1. Last Day of
Employment. As of March 20, 2008 (the “Effective Date”),
Executive hereby resigns his employment with the Company, from all offices and
administrative positions he holds with the Company, and from the Board of
Trustees of the Company. Executive acknowledges and agrees that as of
the Effective Date, he will no longer have any authority to make or enter into
any agreements, commitments, or representations on behalf of the Company, and he
will no longer have any signing or other authority on the Company’s accounts,
trusts, books, or records. Executive will receive his
base salary through the Effective Date.
2. ADEA Separation Benefits and
Non-Vested Shares. In exchange for his release of claims under
the Age Discrimination in Employment Act (“ADEA”), the Company agrees that 8,434
non-vested common shares of the Company (the “ADEA Shares”) held by
the Executive, which, together with the Other Shares (defined below), are all of
the non-vested common shares of the Company held by Executive, shall be fully
vested on the Effective Date (the “ADEA Separation
Benefit”).
3. Other Separation
Benefits. The Company agrees that 8,433 non-vested common
shares of the Company (the “Other Shares”) held
by the Executive, which, together with the ADEA Shares, are all of the
non-vested common shares of the Company held by Executive, shall be fully vested
on the Effective Date (the “Other Separation
Benefit”).
4. Termination and Forfeiture
of All Future Benefits and Compensation. Executive
specifically waives and foregoes all rights to any compensation or benefits of
any kind that are not expressly provided to him in this Agreement, including,
without limitation, any rights under the Employment Agreement (defined below),
any right to any base salary, bonus, incentive or long-term award (including,
without limitation, any annual cash incentive opportunity or annual long-term
incentive opportunity under the 2008 Executive Compensation Program or any
participation in or payment under the Lexington Realty Trust 2007 Outperformance
Plan), severance, life insurance, or other employee
benefits. Executive further acknowledges and agrees that after the
Effective Date he will not be able to participate in any Company-sponsored
employee benefits plan or program except as expressly provided for in this
Agreement. After the Effective Date, to the extent permitted under
and in accordance with Consolidated Omnibus Budget Reconciliation Act, Executive
will have the right to continue his health benefit coverage as to any
Company-provided health plan in which he participates at his own
cost.
5. Release of
Claims.
(a) By Executive. In
exchange for the benefits provided to him under this Agreement, Executive
irrevocably and unconditionally forever releases and discharges the Company, its
subsidiaries, and their affiliates, related companies, successors and assigns,
and each of their current and former employees, officers, trustees, directors,
owners, shareholders, representatives, administrators, fiduciaries, agents,
insurers, and employee benefit programs (excepted vested benefits, if any, in
the Company’s 401(k) Plan) (and the trustees, administrators, fiduciaries and
insurers of any such programs) (collectively, the “Released Parties”)
from all actual or potential, known or unknown claims that Executive presently
has or may have arising out of or relating to Executive’s employment by the
Company or from his position as an officer, trustee or director of the Company
or any other entity in which he served in such positions at the request of the
Company or as a trustee, administrator or fiduciary of an employee benefit plan
at the request of the Company. The claims that Executive is releasing
include, for example and without limitation, claims under any federal, state or
local common law, statute, regulation or law of any type, including but not
limited to Title VII of the Civil Rights Act of 1964, the Americans With
Disabilities Act, the Employee Retirement Income Security Act, the New York
State Human Rights Law, the New York City Human Rights Law; any other claims of
employment discrimination or for breach of contract; any claims arising under or
otherwise related to any other or oral agreement with the Company; and claims
for any other or further compensation, payments or benefits of any kind from any
Released Party. Executive agrees that he has not filed or caused to
be filed any lawsuit, complaint, charge, grievance or any other proceeding
against the Company with any court, agency or other tribunal. Nothing
in this Section 5 shall (i) preclude Executive from filing a charge of age
discrimination with any state, local, or federal administrative agency; however,
in the event he files such a charge, or such a charge is filed on his behalf,
Executive agrees that he shall not be entitled to any damages, remedies, or
other relief for himself personally as a result of any such charge or proceeding
commenced in relation thereto, and that the benefits received in this Agreement
are and shall be his sole and exclusive remedy against Released Parties for any
claims he has as of the date this Agreement is signed or (ii) be deemed to be a
release or discharge of any rights Executive may have to seek indemnification in
accordance with the terms of the Company’s Declaration of Trust, By-laws,
insurance policies maintained for such purposes or any other applicable document
or law with respect to any claims or actions brought against Executive relating
to his employment with the Company or his serving as an officer, trustee and
director the Company.
It is
expressly understood and agreed between the parties that the release of claims
detailed in this Section 5 shall in no way apply to any claims Executive may
have under the ADEA.
(b) By the
Company. The Company irrevocably and unconditionally forever
releases and discharges Executive and his heirs, executors, administrators,
legal representatives and assigns, from all actual or potential, known or
unknown claims that the Company presently may have, arising out of or relating
to Executive’s employment by the Company or from his position as an officer,
trustee or director of the Company or any other entity in which he served in
such positions at the request of the Company or as a trustee, administrator or
fiduciary of an employee benefit plan at the request of the Company; provided,
however, that the Company is not releasing any claims arising out of (i)
intentionally improper acts by Executive or any fraudulent or illegal acts by
Executive, with the understanding that the Company is not currently
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aware of
any such acts, or
(ii) Executives obligation under the Services and Non-Compete Agreement, dated
as of the date hereof (the “Services
Agreement”).
6. Release of ADEA
Claims. In exchange for the ADEA Separation Benefit provided to him under
Section 2 hereof, Executive hereby waives, releases and forever discharges, the
Released Parties from any and all actual or potential, known or unknown claims
he may have under ADEA. Executive acknowledges that the benefits
provided to him under Section 2 hereof are being given in exchange for
Executive’s release of ADEA claims. Nothing in this Section 6 shall preclude
Executive from filing a charge of age discrimination with any state, local, or
federal administrative agency; however, in the event he files such a charge, or
such a charge is filed on his behalf, Executive agrees that he shall not be
entitled to any damages, remedies, or other relief for himself personally as a
result of any such charge or proceeding commenced in relation thereto, and that
the sums received in this Agreement are and shall be his sole and exclusive
remedy against the Released Parties for any claims he has as of the date this
Agreement is signed.
7. Cooperation. Executive
agrees to cooperate with and assist the Company, at its request, in connection
with any claim or litigation arising out of events occurring or agreements made
during the course of his employment with the Company, provided, that Executive
shall be entitled to reimbursement of his reasonable and documented expenses in
connection with such cooperation and assistance. If the Company
requests Executive’s cooperation pursuant to this Section 7 for a period of
greater than 8 hours per month, the Company agrees to reimburse Executive at a
rate of $250.00 per hour.
8. Confidentiality and Trade
Secrets. (i) The Executive will not divulge, transmit or
otherwise disclose (except as legally compelled by court order, and then only to
the extent required, after prompt notice to the Company of any such order),
directly or indirectly, other than in the regular and proper course of providing
services under the Services Agreement, any confidential knowledge or information
with respect to the operations, finances, organization or employees of the
Company or with respect to confidential or secret processes, services,
techniques, customers or plans with respect to the Company; and (ii) the
Executive will not use (except as legally compelled by court order, and then
only to the extent required, after prompt notice to the Company of any such
order), directly or indirectly, any confidential information for the benefit of
anyone other than the Company; provided, however, that the
Executive has no obligation, express or implied, to refrain from using or
disclosing to others any such knowledge or information which is or hereafter
shall become available to the public other than through disclosure by the
Executive. All new processes, techniques, know-how, inventions, plans, products,
patents and devices developed, made or invented by the Executive, alone or with
others, while an employee of the Company which are related to the business of
the Company shall be and become the sole property of the Company, unless
released in writing by the Company, and the Executive hereby assigns any and all
rights therein or thereto to the Company.
9. Return of Company
Property. All files, records, correspondence, memoranda, notes
or other documents (including, without limitation, those in computer-readable
form) or property relating or belonging to the Company or its affiliates,
whether prepared by the Executive or otherwise coming into his possession in the
course of his employment with the Company, shall be the exclusive property of
Company and shall be delivered to Company and not retained by the
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Executive
(including, without limitations, any copies thereof) upon termination of this
Agreement for any reason whatsoever.
10. No Disparagement or
Harm. Prior to the Termination Date (as defined in the
Services Agreement), the Executive agrees not to make statements or
representations, or otherwise communicate, directly or indirectly, in writing,
orally, or otherwise, or take any action which may, directly or indirectly,
disparage the Company or any of its affiliates or their respective officers,
directors, employees, advisors, businesses or reputations. Prior to
the Termination Date, the Company agrees not to make statements or
representations, or otherwise communicate, directly or indirectly, in writing,
orally, or otherwise, or take any action which may, directly or indirectly,
disparage the Executive’s reputation. Notwithstanding the foregoing, nothing in
this Agreement shall preclude the Executive or a representative of the Company
from making truthful statements or disclosures that are required by applicable
law, regulation or legal process.
11. Entire
Agreement. This Agreement constitutes the entire agreement
between Executive and the Company with respect to the subject matter hereof, and
supersedes all agreements between the Executive and the Company, including,
without limitation, the (i) Employment Agreement, dated December 31, 2006,
between the Company and Executive (the “Employment
Agreement), including the survivability provision set forth in Section
11(i) thereof, (ii) Non-Vested Share Agreement, effective January 8, 2008,
between the Company and Executive, and (iii) Letter Agreement Regarding Your
Participation Interest for the 2007 to 2009 Performance Period, dated April 1,
2007, between the Company and Executive, each of which shall terminate and be of
no further force and effect as of the Effective Date; provided, that this
Agreement shall be subject to the terms and conditions of the Services
Agreement.
12. Remedies. Executive
acknowledges that a material breach of Executive’s covenants and releases
contained in this Agreement after material compliance by the Company with its
obligations under this Agreement may cause irreparable damage to the Company,
the exact amount of which will be difficult to ascertain, and that the remedies
at law for any such material breach will be inadequate. Accordingly, Executive
agrees that if he breaches any of the covenants contained in this Agreement in
any material respect, and provided the Company has not materially breached its
obligations under this Agreement, in addition to any other remedy which may be
available at law or in equity, the Company shall be entitled to specific
performance and injunctive relief.
13. Review
Period. The Company advised Executive to take this Agreement
home, read it, and carefully consider all of its terms before signing
it. The Company gave Executive at least 21 days in which to consider
this Agreement, and Executive waives any right he might have to additional time
beyond this consideration period within which to consider this
Agreement. The Company advised Executive to discuss this Agreement
with his own attorney (at his own expense) during this period if he wished to do
so. Executive understands that he may revoke his release of ADEA
claims under Section 6 of this Agreement within seven (7) days after he signs
this Agreement, in which case he will not receive the ADEA Separation Benefit
referred to in Section 2 of this Agreement and, instead, it will be forfeited
and will terminate and be of no further force and effect, and all other
provisions of this Agreement, including Executive’s release
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of
non-ADEA claims, shall remain in full force and effect. Executive has
carefully read this Agreement, fully understands what it means, and is entering
into it voluntarily.
14. Withholdings and
Deductions. The vesting of the ADEA Shares and the Other
Shares pursuant to this Agreement shall be net of applicable withholdings and
deductions and of any debts owed by Executive to the Company, which shall be
fully satisfied by withholding 9,296 common shares of the Company.
15. Miscellaneous.
(a) This
Agreement is not an admission of guilt or wrongdoing by either Executive or the
Company. Executive represents that he is not signing this Agreement
in reliance on any representation not expressly set forth herein.
(b) No
provisions of this Agreement may be modified, waived, amended or discharged
except by a written document signed by Executive and a duly authorized Company
officer. A waiver of any conditions or provisions of this Agreement
in a given instance shall not be deemed a waiver of such conditions or
provisions at any other time.
(c) This
Agreement binds Executive’s heirs, administrators, representatives, executors,
successors, and assigns, and will inure to the benefit of all Released Parties
and their respective heirs, administrators, representatives, executors,
successors, and assigns.
(d) The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
(e) If
any of the provisions, terms or clauses of this Agreement are declared illegal,
unenforceable or ineffective in a legal forum, those provisions, terms and
clauses shall be deemed severable, such that all other provisions, terms and
clauses of this Agreement shall remain valid and binding upon both
parties. If any of the provisions, terms or clauses of this Agreement
are found by a court to be overly broad, those provisions, terms and clauses
shall be enforceable (and modified and enforced) to the broadest extent
permissible under the law.
(f) The
validity, interpretation, construction, and performance of this Agreement shall
be governed by the internal laws of the State of New York (excluding any that
mandate the use of another jurisdiction’s laws).
(g) The
Company shall indemnify the Executive, to the maximum extent permitted by
applicable law, and in the same or better manner and to the same or better
extent with respect to each aspect of the indemnification as provided to any
other executive of the Company, against all costs, charges and expenses incurred
or sustained by the Executive in connection with any action, suit or proceeding
to which the Executive may be made a party, brought by any shareholder of the
Company directly or derivatively or by any third party by reason of any act or
omission of the Executive as an officer, director or employee of the Company or
of any subsidiary or affiliate of the Company.
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(h) Section
headings are intended solely for convenience of reference only and shall not be
a part of this Agreement for any other purpose.
(i) The
Company acknowledges that the Executive is the Chairman and Chief Executive
Officer of Winthrop Realty Trust and that nothing in this Agreement shall in any
way be deemed to limit the rights of the Executive to serve in such capacity and
for Winthrop Realty Trust and its subsidiaries to conduct its business in any
manner in which it deems advisable except to the extent limited by the Services
Agreement during the term of the Services Agreement.
(j) This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same instrument and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other party..
[Signature
page follows]
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SIGNATURE
PAGE TO SEPARATION AGREEMENT AND GENERAL RELEASE
| Dated: 3/20/08 | /s/ Xxxxxxx Xxxxxx | |
| XXXXXXX X. XXXXXX | ||
| LEXINGTON REALTY TRUST | |||
| Dated: 3/20/08 |
By:
|
/s/ X. Xxxxxx Eglin | |
|
Name:
|
X. Xxxxxx Eglin | ||
|
Title:
|
Chief Executive Officer | ||
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