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EXHIBIT 10.16
CONSULTING AGREEMENT AND GENERAL RELEASE
This CONSULTING AGREEMENT AND GENERAL RELEASE (hereafter "Agreement") is made
and entered into this 7th day of February, 1997, by and between Irvine Apartment
Communities ("Company") and Xxxxxx X. Xxxxxx ("XXXXXX").
WHEREAS, XXXXXX was employed by the Company from May 1, 1995 to February 7,
1997; and
WHEREAS, ALBERT'S active services with the Company will terminate on February
7, 1997; and
WHEREAS, XXXXXX and the Company desire to resolve any and all claims arising
out of or related to ALBERT's employment relationship with the Company, or its
termination; and
WHEREAS, the Company desires to retain ALBERT's services on a consulting basis
for one year;
NOW, THEREFORE, in consideration of the premises and mutual promises contained
in this Agreement, it is agreed as follows:
1. The Company will pay SGA Investment Corporation ("SGA") a monthly retainer
for consulting services provided by XXXXXX to the Company for the twelve
months beginning February, 1997 in accordance with the following terms and
conditions.
(a) XXXXXX will provide consulting services as reasonably requested in a
professional and timely manner for a maximum of five hours per month
during normal business hours and upon reasonable notice. Such
consulting services will be similar in kind to the expertise XXXXXX
provided to the Company during the period of his employment.
(b) In addition, XXXXXX agrees, upon reasonable advance notice, to
cooperate with the Company regarding the investigation or the
defense of any legal or business issues or claims which may arise,
and which relate to the time XXXXXX was employed by the Company and
of which XXXXXX has knowledge, or is reasonably believed to have
knowledge. To the extent such activities require time in excess of
the five hours per month stipulated herein, SGA will be paid for
additional consulting services at the rate of $300 per hour.
(c) In exchange for ALBERT's commitments in subparagraph 1(a) and
paragraph 3, the Company agrees to pay to SGA the following amounts
during the consulting period:
(i) $22,917 per month retainer, payable on our about the first
day of each month.
(ii) In addition, the Company will reimburse SGA for reasonable
expenses incurred by XXXXXX or SGA (telephone, travel,
etc.) which are necessarily incurred and approved in
advance in the performance of services requested by the
Company under this Agreement.
(iii) Should XXXXXX breach his obligations in subparagraph I(a)
and/or paragraph 3, the Company shall have the right to
terminate the consulting relationship and stop making
retainer payments under paragraph 1(c)(i), in addition
to any other legal or equitable remedies the Company may
pursue.
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2. XXXXXX will be entitled to the following payments and benefits:
(a) Stock dividend equivalent payments for dividends paid to shareholders in
February 1997 for the fourth quarter of 1996 will be paid to XXXXXX
consistent with his Performance Unit Award Agreement, notwithstanding
the fact that ALBERT's employment terminated prior to the record date
for payment of said dividends.
(b) XXXXXX may exercise his vested stock options consistent with the terms
of his Non-qualified Stock Option Agreement.
(c) ALBERT's restricted stock awards shall vest and be paid consistent with
the terms of his Performance Unit Award Agreement.
(d) ALBERT's group insurance coverage pursuant to the terms of the Company's
group insurance plans will be continued at the Company's expense through
February 28, 1997 at which time XXXXXX may continue such insurance if he
desires in accordance with the provisions of such plans. The Company
will provide XXXXXX with twelve monthly payments of $2,500 commencing
February, 1997 in order to assist XXXXXX with purchasing his own
benefits.
(e) All earned and unused vacation and personal holiday time as of February
7, 1997 will be paid out with ALBERT's final payroll check.
(f) XXXXXX will be paid a severance payment of $141,000, less legally
required deductions, within 10 days following ALBERT's execution of this
Agreement and its return to the Vice President of Human Resources of the
Irvine Company.
3. XXXXXX promises not to make any statements intended to damage the reputation
of the Company or its related entities and not to use or disclose any
confidential information or trade secrets which he learned while employed by
the Company, and further promises not to disclose to anyone (other than his
spouse and tax/legal advisor, or as required by law) the terms of this
Agreement or the fact or amount of any payment made by the Company pursuant
to this Agreement.
4. In exchange for the payments and benefits provided in paragraph 2, XXXXXX
hereby unconditionally releases and forever discharges the Company and its
related or successor companies, its owners, directors, officers, employees,
representatives, and agents, from any and all claims, (including but not
limited to any claims under any state or federal statutes), liabilities,
demands, losses and expenses (including attorneys' fees) of any nature
whatsoever, known or unknown, including, but not limited to, employment
relationship or termination, which he now has or may have in the future
based on any act or omission which occurred prior to the effective date of
this Agreement. In addition, the Company similarly releases all of its
claims against XXXXXX. Each party expressly waives and relinquishes all
rights and benefits afforded by Section 1542 of the California Civil Code,
and does so understanding and acknowledging the significance of such
specific waiver of Section 1542. Section 1542 states as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
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Notwithstanding the above, nothing in this Agreement is intended to alter
ALBERT's right to defense and/or indemnification as may be provided by
applicable laws.
5. This Agreement shall not in any way be construed as an admission by either
party of any liability or wrongdoing on the part of the other, or that
either party has any valid claims or rights whatsoever against the other.
6. This Agreement contains all of the terms, promises, representations, and the
understandings made between the parties. XXXXXX agrees that no promises,
representations, or inducements have been made to him other than those which
are expressly set forth herein. XXXXXX acknowledges and agrees that he has
had sufficient opportunity to fully and privately review this document prior
to its execution, and has had ample opportunity to consult an attorney in
connection therewith, if he so desired.
7. This Agreement will be interpreted in accordance with the laws of the State
of California. Any dispute arising hereafter between the parties regarding
this Agreement, or breach thereof, or ALBERT's employment or otherwise shall
be resolved by an experienced employment law arbitrator selected in
accordance with the procedures of the Judicial Arbitration and Mediation
Services/Endispute. At the arbitrators discretion, the prevailing party in
any arbitration or mediation hereunder may be entitled to recover reasonable
legal fees and costs. should either party pursue any other legal or
administrative action, the other party shall be entitled to recover all
costs, expenses, and attorneys' fees it incurs as a result of such action.
8. In exchange for material portions of the additional pay and benefits
provided in paragraph 2 and in accordance with the Older Workers Benefit
Protection Act, XXXXXX hereby knowingly and voluntarily waives and releases
all rights and claims, known and unknown, arising under the Age
Discrimination In Employment Act of 1967, as amended, which he might
otherwise have had against the Company or their related entities, officers,
directors, managers, or employees regarding any aspect of his employment or
any other act or omission up to and including the effective date of this
Agreement.
XXXXXX is hereby advised (a) to consult with an attorney prior to signing this
Agreement and (b) that he has 21 days in which to consider and accept this
Agreement by signing and returning this Agreement to the Vice President of Human
Resources of the Irvine Company. In addition, XXXXXX has a period of 7 days
following his signing of this Agreement in which he may revoke the Agreement. If
XXXXXX does not advise the Company (by writing received by the Vice President of
Human Resources of the Irvine Company) within such 7 day period of his intent to
revoke the Agreement, the Agreement will become effective and enforceable upon
the expiration of the 7 days.
DATED: February 13, 1997 By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Witness of voluntary signature
DATED: February 13, 1997 By: /s/ XXX XXXXXX
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Xxx Xxxxxx
Witness' Signature
IRVINE APARTMENT COMMUNITIES
DATED: February __, 1997 By: /s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
Chairman
DATED: February 13, 1997 By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. XxXxx
Director
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