SEVERANCE AGREEMENT
Exhibit 10.1
This Severance Agreement (“Agreement”) is made as of the ___ day of
___, ___, between Terreno Realty Corporation, a Maryland corporation (the “Company”),
and W. Xxxxx Xxxxx (the “Executive”).
WHEREAS, the Company desires to employ the Executive and to provide the Executive with certain
severance protection and the Executive desires to be employed by the Company on the terms contained
herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. Term. The term of this Agreement shall extend from the date first written above
(the “Commencement Date”) until the third anniversary of the Commencement Date. The Agreement
shall be automatically extended for an additional one-year period beginning on the third
anniversary of the Commencement Date and each anniversary thereof unless, not less than 90 days
prior to each such date, either party shall have given notice to the other that it does not wish to
extend this Agreement.
2. Termination. During the term of this Agreement, the Executive’s employment with
the Company may be terminated without any breach of this Agreement under the following
circumstances:
(a) Death. The Executive’s employment hereunder shall terminate upon his death.
(b) Disability. The Company may terminate the Executive’s employment if he is
disabled and unable to perform the essential functions of the Executive’s then existing position or
positions under this Agreement with or without reasonable accommodation for a period of 180 days
(which need not be consecutive) in any 12-month period. If any question shall arise as to whether
during any period the Executive is disabled so as to be unable to perform the essential functions
of the Executive’s then existing position or positions with or without reasonable accommodation,
the Executive may, and at the request of the Company shall, submit to the Company a certification
in reasonable detail by a physician selected by the Company to whom the Executive or the
Executive’s guardian has no reasonable objection as to whether the Executive is so disabled or how
long such disability is expected to continue, and such certification shall for the purposes of this
Agreement be conclusive of the issue. The Executive shall cooperate with any reasonable request of
the physician in connection with such certification. If such question shall arise and the
Executive shall fail to submit such certification, the Company’s determination of such issue shall
be binding on the Executive. Nothing in this Section 2(b) shall be construed to waive the
Executive’s rights, if any, under existing law
including, without limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. §2601 et
seq. and the Americans with Disabilities Act, 42 U.S.C. §12101 et seq.
(c) Termination by Company for Cause. The Company may terminate the Executive’s
employment hereunder for Cause by a vote of the Board at a meeting of the Board called and held for
such purpose. For purposes of this Agreement, “Cause” shall mean: (i) conduct by the Executive
constituting a material act of misconduct in connection with the performance of his duties,
including, without limitation, misappropriation of funds or property of the Company or any of its
subsidiaries or affiliates other than the occasional, customary and de minimis use of Company
property for personal purposes; (ii) the commission by the Executive of any felony or a misdemeanor
involving moral turpitude, deceit, dishonesty or fraud, or any conduct by the Executive that would
reasonably be expected to result in material injury or reputational harm to the Company or any of
its subsidiaries and affiliates if he were retained in his position; (iii) continued
non-performance by the Executive of his duties hereunder (other than by reason of the Executive’s
physical or mental illness, incapacity or disability) which has continued for more than 30 days
following written notice of such non-performance from the Board; (iv) a breach by the Executive of
any of the provisions contained in Section 5 of this Agreement; (v) a material violation by the
Executive of the Company’s written employment policies, or (vi) failure to cooperate with a bona
fide internal investigation or an investigation by regulatory or law enforcement authorities, after
being instructed by the Company to cooperate, or the willful destruction or failure to preserve
documents or other materials known to be relevant to such investigation or the inducement of others
to fail to cooperate or to produce documents or other materials in connection with such
investigation.
(d) Termination Without Cause. The Company may terminate the Executive’s employment
hereunder at any time without Cause. Any termination by the Company of the Executive’s employment
under this Agreement which does not constitute a termination for Cause under Section 2(c) and does
not result from the death or disability of the Executive under Section 2(a) or (b) shall be deemed
a termination without Cause. A notice by the Company of non-renewal of this Agreement shall not be
construed as a termination without Cause.
(e) Termination by the Executive. The Executive may terminate his employment
hereunder at any time for any reason, including but not limited to Good Reason. For purposes of
this Agreement, “Good Reason” shall mean that the Executive has complied with the “Good Reason
Process” (hereinafter defined) following the occurrence of any of the following events: (i) a
material diminution in the Executive’s responsibilities, authority or duties; (ii) a material
diminution in the Executive’s Base Salary except for across-the-board salary reductions based on
the Company’s financial performance similarly affecting all or substantially all senior management
employees of the Company; (iii) a material change in the geographic location at which the Executive
provides services to the Company; or (iv) the material breach of this Agreement by the Company.
“Good Reason Process” shall mean that (i) the Executive reasonably determines in good faith that a
“Good Reason” condition has occurred; (ii) the Executive notifies the Company in writing of the
first occurrence of the Good Reason condition within 60 days of the first occurrence of such
condition; (iii) the Executive cooperates in good faith with the Company’s efforts, for a period
not less than 30 days following such notice (the “Cure Period”), to remedy the condition; (iv)
notwithstanding such efforts, the Good Reason
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condition continues to exist; and (v) the Executive terminates his employment within 60 days
after the end of the Cure Period. If the Company cures the Good Reason condition during the Cure
Period, Good Reason shall be deemed not to have occurred.
(f) Notice of Termination. Except for termination as specified in Section 2(a), any
termination of the Executive’s employment by the Company or any such termination by the Executive
shall be communicated by written Notice of Termination to the other party hereto. For purposes of
this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
(g) Date of Termination. “Date of Termination” shall mean: (i) if the Executive’s
employment is terminated by his death, the date of his death; (ii) if the Executive’s employment is
terminated on account of disability under Section 2(b) or by the Company for Cause under
Section 2(c), the date on which Notice of Termination is given; (iii) if the Executive’s employment
is terminated by the Company under Section 2(d), 30 days after the date on which a Notice of
Termination is given; (iv) if the Executive’s employment is terminated by the Executive under
Section 2(e) without Good Reason, 30 days after the date on which a Notice of Termination is given,
and (v) if the Executive’s employment is terminated by the Executive under Section 2(e) with Good
Reason, the date on which a Notice of Termination is given after the end of the Cure Period.
Notwithstanding the foregoing, in the event that the Executive gives a Notice of Termination to the
Company, the Company may unilaterally accelerate the Date of Termination and such acceleration
shall not result in a termination by the Company for purposes of this Agreement.
3. Compensation Upon Termination.
(a) Termination Generally. If the Executive’s employment with the Company is
terminated for any reason, the Company shall pay or provide to the Executive (or to his authorized
representative or estate) any earned but unpaid base salary, incentive compensation earned but not
yet paid, unpaid expense reimbursements, accrued but unused vacation and any vested benefits the
Executive may have under any employee benefit plan of the Company (the “Accrued Benefit”) on or
before the time required by law but in no event more than 30 days after the Executive’s Date of
Termination.
(b) Termination of Employment by Reason of Death or Disability. If the Executive’s
employment is terminated by the Company under Section 2(a) by reason of death or disability under
Section 2(b), then the Company shall through the Date of Termination, pay the Executive his Accrued
Benefit. In addition,
(i) subject to the Executive (in case of disability only) signing a general release of
claims in favor of the Company and related persons and entities in a form and manner
satisfactory to the Company (the “Release”) within the 21-day period following the Date of
Termination and the expiration of the seven-day revocation period for the Release, the
Company shall pay the Executive, or his estate, as the case may be, a lump sum amount equal
to his most recent target award under the Company’s long-term incentive compensation
program. Such amount shall be paid on the first payroll date that occurs at least 30 days
after the Date of Termination;
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(ii) upon the Date of Termination, all time-based restricted stock awards held by the
Executive shall vest and become nonforfeitable.
(c) Termination by the Company Without Cause or by the Executive with Good Reason. If
the Executive’s employment is terminated by the Company without Cause as provided in Section 2(d),
or the Executive terminates his employment for Good Reason as provided in Section 2(e), then the
Company shall, through the Date of Termination, pay the Executive his Accrued Benefit. In
addition:
(i) subject to the Executive signing the Release within the 21-day period following the
Date of Termination and the expiration of the seven-day revocation period for the Release,
the Company shall pay the Executive an amount equal to one times the sum of the Executive’s
Base Salary and his most recent target award under the long-term incentive compensation
program (the “Severance Amount”). If such termination occurs within 12 months after a
Change in Control, the Severance Amount shall be two (2) times the sum of the Executive’s
Base Salary and his most recent target award under the Company’s long-term incentive
program. The Severance Amount shall be paid out in a lump sum on the first payroll date
that occurs at least 30 days after the Date of Termination; and
(ii) upon the Date of Termination, all time-based restricted stock awards held by the
Executive shall vest and become nonforfeitable; and
(iii) subject to the Executive’s copayment of premium amounts at the active employees’
rate, the Executive may continue to participate in the Company’s group health, dental and
vision program for 18 months; provided, however, that the continuation of health benefits
under this Section shall reduce and count against the Executive’s rights under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”).
(d) Additional Limitation.
(i) Anything in this Agreement to the contrary notwithstanding, in the event that the
amount of any compensation, payment or distribution by the Company to or for the benefit of
the Executive, whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, calculated in a manner consistent with Section 280G of the
Internal Revenue Code of 1986, as amended (the “Code”) and the applicable regulations
thereunder (the “Severance Payments”), would be subject to the excise tax imposed by
Section 4999 of the Code, the following provisions shall apply:
(A) If the Severance Payments, reduced by the sum of (1) the Excise Tax and (2)
the total of the Federal, state, and local income and employment taxes payable by
the Executive on the amount of the Severance Payments which are in excess of the
Threshold Amount, are greater than or equal to the Threshold Amount, the Executive
shall be entitled to the full benefits payable under this Agreement.
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(B) If the Threshold Amount is less than (x) the Severance Payments, but
greater than (y) the Severance Payments reduced by the sum of (1) the Excise Tax and
(2) the total of the Federal, state, and local income and employment taxes on the
amount of the Severance Payments which are in excess of the Threshold Amount, then
the Severance Payments shall be reduced (but not below zero) to the extent necessary
so that the sum of all Severance Payments shall not exceed the Threshold Amount. In
such event, the Severance Payments shall be reduced in the following order: (1)
cash payments not subject to Section 409A of the Code; (2) cash payments subject to
Section 409A of the Code; (3) equity-based payments and acceleration; and (4)
non-cash forms of benefits. To the extent any payment is to be made over time
(e.g., in installments, etc.), then the payments shall be reduced in reverse
chronological order.
(ii) For the purposes of this Section 3(d), “Threshold Amount” shall mean three times
the Executive’s “base amount” within the meaning of Section 280G(b)(3) of the Code and the
regulations promulgated thereunder less one dollar ($1.00); and “Excise Tax” shall mean the
excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by
the Executive with respect to such excise tax.
(iii) The determination as to which of the alternative provisions of this Section 3(d)
shall apply to the Executive shall be made by a nationally recognized accounting firm
selected by the Company (the “Accounting Firm”), which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of the Date of
Termination, if applicable, or at such earlier time as is reasonably requested by the
Company or the Executive. For purposes of determining which of the alternative provisions
of this Section 3(d) shall apply, the Executive shall be deemed to pay federal income taxes
at the highest marginal rate of federal income taxation applicable to individuals for the
calendar year in which the determination is to be made, and state and local income taxes at
the highest marginal rates of individual taxation in the state and locality of the
Executive’s residence on the Date of Termination, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and local taxes. Any
determination by the Accounting Firm shall be binding upon the Company and the Executive.
(e) Definitions. For purposes of this Agreement, the following terms shall have the
following meanings:
“Change in Control” shall mean any of the following:
(i) any “person,” as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Act”) (other than the Company, any of its
subsidiaries, or any trustee, fiduciary or other person or entity holding securities under
any employee benefit plan or trust of the Company or any of its subsidiaries), together with
all “affiliates” and “associates” (as such terms are defined in Rule 12b-2 under the Act) of
such person, shall become the “beneficial owner” (as such term is defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company
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representing 40 percent or more of the combined voting power of the Company’s then
outstanding securities having the right to vote in an election of the Board (“Voting
Securities”) (in such case other than as a result of an acquisition of securities directly
from the Company); or
(ii) the date a majority of the members of the Board is replaced during any 12-month
period by directors whose appointment or election is not endorsed by a majority of the
members of the Board before the date of the appointment or election; or
(iii) the consummation of (A) any consolidation or merger of the Company where the
stockholders of the Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own (as such term is defined in
Rule 13d-3 under the Act), directly or indirectly, shares representing in the aggregate more
than 50 percent of the voting shares of the Company issuing cash or securities in the
consolidation or merger (or of its ultimate parent corporation, if any), or (B) any sale or
other transfer (in one transaction or a series of transactions contemplated or arranged by
any party as a single plan) of all or substantially all of the assets of the Company.
Notwithstanding the foregoing, a “Change in Control” shall not be deemed to have occurred for
purposes of the foregoing clause (i) solely as the result of an acquisition of securities by the
Company which, by reducing the number of shares of Voting Securities outstanding, increases the
proportionate number of Voting Securities beneficially owned by any person to 40 percent or more of
the combined voting power of all of the then outstanding Voting Securities; provided, however, that
if any person referred to in this sentence shall thereafter become the beneficial owner of any
additional shares of Voting Securities (other than pursuant to a stock split, stock dividend, or
similar transaction or as a result of an acquisition of securities directly from the Company) and
immediately thereafter beneficially owns 40 percent or more of the combined voting power of all of
the then outstanding Voting Securities, then a “Change in Control” shall be deemed to have occurred
for purposes of the foregoing clause (i).
4. Section 409A.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time of the
Executive’s separation from service within the meaning of Section 409A of the Code, the Company
determines that the Executive is a “specified employee” within the meaning of
Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive
becomes entitled to under this Agreement on account of the Executive’s separation from service
would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant
to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the
Code, such payment shall not be payable and such benefit shall not be provided until the date that
is the earlier of (A) six months and one day after the Executive’s separation from service, or (B)
the Executive’s death. If any such delayed cash payment is otherwise payable on an installment
basis, the first payment shall include a catch-up payment covering amounts that would otherwise
have been paid during the six-month period but for the application of this provision, and the
balance of the installments shall be payable in accordance with their original schedule.
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(b) To the extent that any payment or benefit described in this Agreement constitutes
“non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such
payment or benefit is payable upon the Executive’s termination of employment, then such payments or
benefits shall be payable only upon the Executive’s “separation from service.” The determination
of whether and when a separation from service has occurred shall be made in accordance with the
presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with
Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to
its compliance with Section 409A of the Code, the provision shall be read in such a manner so that
all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement
may be amended, as reasonably requested by either party, and as may be necessary to fully comply
with Section 409A of the Code and all related rules and regulations in order to preserve the
payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the
Executive or any other person if any provisions of this Agreement are determined to constitute
deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or
the conditions of, such Section.
5. Confidential Information, Nonsolicitation and Cooperation.
(a) Confidential Information. As used in this Agreement, “Confidential Information”
means information belonging to the Company which is of value to the Company in the course of
conducting its business and the disclosure of which could result in a competitive or other
disadvantage to the Company. Confidential Information includes, without limitation, financial
information, reports, and forecasts; inventions, improvements and other intellectual property;
trade secrets; know-how; designs, processes or formulae; software; market or sales information or
plans; customer lists; and business plans, prospects and opportunities (such as possible
acquisitions or dispositions of businesses or facilities) which have been discussed or considered
by the management of the Company. Confidential Information includes information developed by the
Executive in the course of the Executive’s employment by the Company, as well as other information
to which the Executive may have access in connection with the Executive’s employment. Confidential
Information also includes the confidential information of others with which the Company has a
business relationship. Notwithstanding the foregoing, Confidential Information does not include
information in the public domain, unless due to breach of the Executive’s duties under
Section 5(b).
(b) Confidentiality. The Executive understands and agrees that the Executive’s
employment creates a relationship of confidence and trust between the Executive and the Company
with respect to all Confidential Information. At all times, both during the Executive’s employment
with the Company and after its termination, the Executive will keep in confidence and trust all
such Confidential Information, and will not use or disclose any such Confidential Information
without the written consent of the Company, except as may be necessary in the ordinary course of
performing the Executive’s duties to the Company.
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(c) Documents, Records, etc. All documents, records, data, apparatus, equipment and
other physical property, whether or not pertaining to Confidential Information, which are furnished
to the Executive by the Company or are produced by the Executive in connection with the Executive’s
employment will be and remain the sole property of the Company. The Executive will return to the
Company all such materials and property as and when requested by the Company. In any event, the
Executive will return all such materials and property immediately upon termination of the
Executive’s employment for any reason. The Executive will not retain with the Executive any such
material or property or any copies thereof after such termination.
(d) Nonsolicitation. During the Executive’s employment with the Company and for 12
months thereafter, regardless of the reason for the termination, the Executive (i) will refrain
from directly or indirectly employing, attempting to employ, recruiting or otherwise soliciting,
inducing or influencing any person to leave employment with the Company (other than terminations of
employment of subordinate employees undertaken in the course of the Executive’s employment with the
Company); and (ii) will refrain from soliciting or encouraging any customer or supplier to
terminate or otherwise modify adversely its business relationship with the Company. The Executive
understands that the restrictions set forth in this Section 5(d) are intended to protect the
Company’s interest in its Confidential Information and established employee, customer and supplier
relationships and goodwill, and agrees that such restrictions are reasonable and appropriate for
this purpose.
(e) Third-Party Agreements and Rights. The Executive hereby confirms that the
Executive is not bound by the terms of any agreement with any previous employer or other party
which restricts in any way the Executive’s use or disclosure of information or the Executive’s
engagement in any business. The Executive represents to the Company that the Executive’s execution
of this Agreement, the Executive’s employment with the Company and the performance of the
Executive’s proposed duties for the Company will not violate any obligations the Executive may have
to any such previous employer or other party. In the Executive’s work for the Company, the
Executive will not disclose or make use of any information in violation of any agreements with or
rights of any such previous employer or other party, and the Executive will not bring to the
premises of the Company any copies or other tangible embodiments of non-public information
belonging to or obtained from any such previous employment or other party.
(f) Litigation and Regulatory Cooperation. During and after the Executive’s
employment, the Executive shall cooperate fully with the Company in the defense or prosecution of
any claims or actions now in existence or which may be brought in the future against or on behalf
of the Company which relate to events or occurrences that transpired while the Executive was
employed by the Company. The Executive’s full cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with counsel to prepare for
discovery or trial and to act as a witness on behalf of the Company at mutually convenient times.
During and after the Executive’s employment, the Executive also shall cooperate fully with the
Company in connection with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences that transpired
while the Executive was employed by the Company. The Company
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shall reimburse the Executive for any reasonable out-of-pocket expenses incurred in connection
with the Executive’s performance of obligations pursuant to this Section 5(f).
(g) Injunction. The Executive agrees that it would be difficult to measure any
damages caused to the Company which might result from any breach by the Executive of the promises
set forth in this Section 5, and that in any event money damages would be an inadequate remedy for
any such breach. Accordingly, subject to Section 6 of this Agreement, the Executive agrees that if
the Executive breaches, or proposes to breach, any portion of this Agreement, the Company shall be
entitled, in addition to all other remedies that it may have, to an injunction or other appropriate
equitable relief to restrain any such breach without showing or proving any actual damage to the
Company.
6. Arbitration of Disputes. Any controversy or claim arising out of or relating to
this Agreement or the breach thereof or otherwise arising out of the Executive’s employment or the
termination of that employment (including, without limitation, any claims of unlawful employment
discrimination whether based on age or otherwise) shall, to the fullest extent permitted by law, be
settled by arbitration in any forum and form agreed upon by the parties or, in the absence of such
an agreement, under the auspices of the American Arbitration Association (“AAA”) in San Francisco,
California in accordance with the Employment Dispute Resolution Rules of the AAA, including, but
not limited to, the rules and procedures applicable to the selection of arbitrators. In the event
that any person or entity other than the Executive or the Company may be a party with regard to any
such controversy or claim, such controversy or claim shall be submitted to arbitration subject to
such other person or entity’s agreement. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. This Section 6 shall be specifically
enforceable. Notwithstanding the foregoing, this Section 6 shall not preclude either party from
pursuing a court action for the sole purpose of obtaining a temporary restraining order or a
preliminary injunction in circumstances in which such relief is appropriate; provided that any
other relief shall be pursued through an arbitration proceeding pursuant to this Section 6.
7. Consent to Jurisdiction. To the extent that any court action is permitted
consistent with or to enforce Section 6 of this Agreement, the parties hereby consent to the
jurisdiction of the Superior Court of the State of California and the United States District Court
for the District of California. Accordingly, with respect to any such court action, the Executive
(a) submits to the personal jurisdiction of such courts; (b) consents to service of process; and
(c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with
respect to personal jurisdiction or service of process.
8. Integration. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements between the parties
concerning such subject matter.
9. Withholding. All payments made by the Company to the Executive under this
Agreement shall be net of any tax or other amounts required to be withheld by the Company under
applicable law.
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10. Successor to the Executive. This Agreement shall inure to the benefit of and be
enforceable by the Executive’s personal representatives, executors, administrators, heirs,
distributees, devisees and legatees. In the event of the Executive’s death after his termination
of employment but prior to the completion by the Company of all payments due him under this
Agreement, the Company shall continue such payments to the Executive’s beneficiary designated in
writing to the Company prior to his death (or to his estate, if the Executive fails to make such
designation).
11. Enforceability. If any portion or provision of this Agreement (including, without
limitation, any portion or provision of any section of this Agreement) shall to any extent be
declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this
Agreement, or the application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion
and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
12. Survival. The provisions of this Agreement shall survive the termination of this
Agreement and/or the termination of the Executive’s employment to the extent necessary to
effectuate the terms contained herein.
13. Waiver. No waiver of any provision hereof shall be effective unless made in
writing and signed by the waiving party. The failure of any party to require the performance of
any term or obligation of this Agreement, or the waiver by any party of any breach of this
Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a
waiver of any subsequent breach.
14. Notices. Any notices, requests, demands and other communications provided for by
this Agreement shall be sufficient if in writing and delivered in person or sent by a nationally
recognized overnight courier service or by registered or certified mail, postage prepaid, return
receipt requested, to the Executive at the last address the Executive has filed in writing with the
Company or, in the case of the Company, at its main offices, attention of the Board.
15. Amendment. This Agreement may be amended or modified only by a written instrument
signed by the Executive and by a duly authorized representative of the Company.
16. Governing Law. This is a California contract and shall be construed under and be
governed in all respects by the laws of the State of California, without giving effect to the
conflict of laws principles of such State. With respect to any disputes concerning federal law,
such disputes shall be determined in accordance with the law as it would be interpreted and applied
by the United States Court of Appeals for the Ninth Circuit.
17. Counterparts. This Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be taken to be an original; but such counterparts
shall together constitute one and the same document.
18. Successor to Company. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of the Company expressly to assume and agree to perform this Agreement to
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the same extent that the Company would be required to perform it if no succession had taken
place. Failure of the Company to obtain an assumption of this Agreement at or prior to the
effectiveness of any succession shall be a material breach of this Agreement.
19. Gender Neutral. Wherever used herein, a pronoun in the masculine gender shall be
considered as including the feminine gender unless the context clearly indicates otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement effective on the date and year
first above written.
| TERRENO REALTY CORPORATION | ||||||
| By: | ||||||
| Its: | ||||||
| EXECUTIVE | ||||||
| W. Xxxxx Xxxxx | ||||||
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