EXHIBIT 10.22
May 19, 2000
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Mr. J. Xxxxxx Xxxxxxx
000 Xxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
Dear Xx. Xxxxxxx:
This letter agreement memorializes the agreement that you have reached with
JDN Realty Corporation ("JDN Realty") and JDN Development Company, Inc.
("Development Company") (the "Agreement") regarding the termination of your
relationship, and resignation from all employment, offices and directorships
heretofore held, with JDN Realty, Development Company, and the related and
affiliated entities of each, (collectively, the "Companies"). The purpose of
the Agreement is to establish mutually agreeable arrangements for the
termination of the Employment Agreement by and between you and JDN Realty dated
as of December 1, 1996 (the "Employment Agreement") and for otherwise
terminating your relationship with the Companies.
With those understandings and in exchange for the promises set forth below,
you and the Companies agree as follows:
1. Separation. You hereby confirm your resignation from the office of
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Chairman of JDN Realty effective as of April 12, 2000 (the "Separation Date"),
and your resignation from any and all other employment, offices and board of
director seats that you have previously held with any of the Companies. Said
resignations have been accepted by the Companies. (Your separation as an
employee and your resignation from your offices and directorships shall be
referred to hereinafter as the "Separation").
2. Obligations and Rights of the Companies. The Companies hereby agree to
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the following terms:
(a) Payment. In consideration for your resignation from the Companies
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and the relinquishment of your rights under the Employment Agreement, JDN Realty
agrees to transfer to you title to the automobile utilized by you as a company
vehicle prior to your resignation. You understand and agree that JDN Realty is
not making this conveyance to you as compensation to you for any past or future
services provided to the companies, and you assume all obligation to pay, and
are solely liable for, all applicable taxes, including, without limitation, all
federal and state income tax.
(b) Payment for Consulting Services to be Provided to Development
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Company. Development Company agrees to pay to you one hundred seventy-five
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thousand dollars ($175,000) upon the execution hereof in remuneration for
consulting services to be performed by you as an independent contractor as set
forth in Paragraph 5 hereof.
(c) Payment of Dividends. JDN Realty acknowledges your entitlement to
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a dividend declared to record holders of JDN Realty Common Stock as of March 17,
2000 in the amount of one hundred twenty-five thousand ninety-five dollars and
forty-one cents ($125,095.41), less applicable withholding, based on your stock
ownership as of the record date.
(d) Health Insurance and COBRA Coverage. As of the Separation Date,
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you will no longer be entitled to participate in or receive benefits available
to employees of the Companies; provided, however, that nothing herein shall be
construed to affect your or your dependents' rights thereafter to receive
continuous coverage to the extent authorized by and consistent with the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") or any other benefits
the continuation of which is required by law, entirely at your own cost after
your right to benefit continuation ends under this paragraph.
(d) Exclusivity. This Agreement sets forth all of the consideration
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to which you are entitled by reason of your past employment and relationship
with the Companies and the Separation, and you shall not be entitled to or
eligible for any payments or benefits under any other severance, equity, bonus,
retention or incentive policy, arrangement or plan of the Companies.
3. Employee Obligations. You hereby agree to the following terms:
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Cooperation in Legal Matters.
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(i) Subject to and in accordance with the terms of this subparagraph 3(a),
you agree to continue to cooperate fully with any and all of the
Companies (as applicable), in (1) the defense or prosecution of any
claims or actions which have been brought or which are hereafter
brought against or on behalf of any or all of the Companies (as
applicable); and (2) responding to any governmental audit, inspection,
inquiry, proceeding or investigation, which relates to events that
transpired during your employment with any of the Companies. "Full
cooperation" shall include, without limitation: (1) promptly notifying
JDN Realty in writing of any subpoena, interview, investigation, or
inquiry concerning events that transpired during your employment with
the Companies; (2) meeting with counsel for, or other designated
representatives of, one or more of the Companies (as applicable) upon
reasonable notice and with the opportunity to be accompanied by
counsel, to prepare for discovery or trial and to discuss relevant
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issues and provide relevant information to the fullest extent possible
without waiving the attorney client privilege, but only to the extent
you do not have an interest in the lawsuit, proceeding or action at
issue which is adverse to the interests of the one or more Companies
involved in such lawsuit, action or proceeding; and (3) testifying
truthfully as a witness at reasonable times upon the request of one or
more of the Companies (as applicable) without being in any way
required to waive your privilege against self incrimination.
(ii) Nothing contained in this Paragraph 3(a) shall be construed to require
you to divulge information which is covered by the attorney client
privilege absent a written joint defense agreement agreed to and
signed by the one or more Companies requesting the information.
(b) Return of Company Property. Except as specifically set forth in
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Paragraph 2(a) above, all documents, records and material and all copies of any
of the foregoing pertaining to confidential information (as described in Section
8 of the Employment Agreement), and all software, equipment (including, for
example, without implication of limitation any cellular telephone or computer
owned by any of the Companies and currently in your possession), and other
supplies, whether or not pertaining to confidential information, that have come
into your possession or been produced by you in connection with your employment
(the "Property") have been and remain the sole property of the Companies. You
hereby confirm you have returned all Property to the Companies. In no event
should this provision be construed to require you to return to the Company any
document or other materials concerning your remuneration and benefits during
your employment with the Companies. JDN Realty and Development Company
acknowledge that Schedule 3(b) attached hereto is list of property belonging to
you that remains at the Nashville office of the Companies, and you agree to
remove such property from the premises promptly following the execution of this
Agreement at a reasonable time and upon reasonable notice to a duly authorized
officer of one or more of the Companies.
(c) Cancellation of Stock Options. The parties acknowledge and agree
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that you have heretofore been granted options to purchase 569,049 shares of
Common Stock at an exercise price of $14.67 per share, 267,000 shares of Common
Stock at an exercise price of $13.50 per share, and 450,000 shares of Common
Stock at an exercise price of $20.75 per share, all of which are vested and
exercisable as of the date hereof (such vested and exercisable options,
collectively, the "Vested Options"). You hereby acknowledge that the Vested
Options are forfeited and cancelled as of the date hereof, and you shall have no
further right or claim to such Vested Options from this date forward.
(d) Deferred Bonus Plan; Long-Term Incentive Plan. The parties agree
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to the following with respect to: (i) the shares (comprised of 11,131.50 shares
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awarded that are vested and 11,131.50 shares awarded that are not yet vested) of
JDN Realty's Common Stock awarded to you pursuant to JDN Realty's 1998 Deferred
Bonus Plan (the "Bonus Plan Shares"); and (ii) the 300,000 shares (all of which
are not yet vested) of JDN Realty's Common Stock awarded to you pursuant to JDN
Realty's 1999 Long-Term Incentive Plan (the "LTIP Shares," which, together with
the Bonus Plan Shares, are referred to herein as the "Award Shares"):
(i) You acknowledge that the 300,000 LTIP Shares and the 11,131.5
Bonus Plan Shares which were not vested as of the Separation Date and any
cash bonuses deferred under the 1998 Deferred Bonus Plan are forfeited.
(ii) You will retain ownership of the 11,131.5 vested Award Shares,
and shall remain liable for any tax obligation associated with the vesting
and/or issuance of such shares.
4. Limited Release. JDN Realty and Development Company do hereby release
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you, your successors and assigns from any and all claims, demands, damages,
actions, causes of action or suits of any kind or nature, brought by JDN Realty
or Development Company to recover:
(a) the costs or expenses of the investigation by a Special Committee
of the Board of Directors of JDN Realty into certain payments made by or on
behalf of Development Company to Xxx X. Xxxxxx, C. Xxxxxxx Xxxxxxxxxx, XX and
their affiliate, ALA Associates, Inc., in the form of outparcels, cash fees and
site work (collectively, the "Payments"), certain related party transactions
(the "Related Party Transactions"), and other matters involving JDN Realty and
Development Co. (the "Investigation"), or any costs and expenses incurred in the
course of the Investigation subsequent to the date of this Agreement;
(b) reimbursement of the Payments , whether or not such Payments were
approved by you; or
(c) a refund or return of any salary, bonuses or other approved
compensation paid to you.
5. Consulting Services for Development Company. You hereby agree to
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provide non-exclusive consulting services to Development Company on an as needed
basis for a period of 3 months from the Separation Date (the "Consulting
Period") on the following terms.
(a) In your capacity as a consultant to Development Company, you
agree upon reasonable request by Development Company during the Consulting
Period to assist the company with respect to transitional matters that may arise
following the Separation Date, and to respond to requests for assistance or
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information concerning the development or sale of properties, relationships with
tenants of Development Company, or other business matters ( but not with respect
to legal matters except pursuant to section 2(b)) with which you became familiar
while employed and serving as an officer of the Companies.
(b) It is intended and agreed by and between the parties that in
providing consulting services during the Consulting Period, you are, and shall
at all times serve as an independent contractor, and you understand and agree
that during the Consulting Period, you are not an employee of any of the
Companies and shall not be treated as an employee for any purpose. You
understand and agree that as an independent contractor, you are required to pay
and are solely liable for, all applicable taxes, including, without limitation,
federal income tax, self-employment tax and state income tax on remuneration you
receive in exchange for the Consulting Services and you may be required to pay
quarterly estimated income taxes.
(c) During the Consulting Period, you will not, except on behalf of
or with the prior written consent of the Companies, contact or solicit, directly
or indirectly, any customer, client, tenant or account whose identity you
obtained through association with the Companies; provided, however, that this
restriction shall apply only to customers with whom you have had an actual
material contact while performing your duties for the Companies.
(d) During the Consulting Period, you will not directly or
indirectly, entice or induce, or attempt to entice or induce, any employee of
the Companies employed as of the Separation Date to leave such employ, or employ
any such person in any business similar to or in competition with that of the
Companies.
6. Employment Agreement.
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This Agreement supersedes all provisions of the Employment Agreement
other than Section 11 (dealing with Indemnification), which is incorporated
herein by reference and which shall continue to bind the parties in accordance
with its terms.
7. Confidentiality.
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Except pursuant to a subpoena, or in testimony in any case,
proceeding, investigation or inquiry, or in any audit, inspection or interview
with any state or federal governmental agency, you will not disclose to any
person or entity or use, at any time, any information not in the public domain
or generally known in the industry, in any form, acquired by you while employed
by the Companies or any predecessor to the Companies' business, and relating to
the Companies, including but not limited to information regarding customers,
vendors, suppliers, trade secrets, training programs, manuals or materials,
technical information, contracts, systems, procedures, mailing lists, know-how,
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trade names, improvements, price lists, financial or other data (including the
revenues, costs or profits associated with any of the Companies' services),
business plans, code books, invoices and other financial statements, computer
programs, software systems, databases, discs and printouts, plans (business,
technical or otherwise), customer and industry lists, correspondence, internal
reports, personnel files, sales and advertising material, telephone numbers,
names, addresses or any other compilation of information, written or unwritten,
which is or was used in the business of the Companies. You agree and
acknowledge that all of such information, in any form, and copies and extracts
thereof, are and shall remain the sole and exclusive property of the Companies,
and that you have or will promptly upon the execution of this Agreement return
to the Companies the originals and all copies of any such information provided
to or acquired by you in connection with the performance of your duties for the
Companies, and shall return to the Companies all files, correspondence and/or
other communications received, maintained and/or originated by you during the
course of your employment.
8. Indemnification. JDN Realty and Development Company agree to indemnify
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and advance to you reasonable expenses incurred in connection with any
litigation or other legal or regulatory proceeding of any kind filed or
initiated against the Companies or you by reason of your status as an officer or
employee of the Companies, in accordance with the terms of the Articles of
Incorporation and Bylaws of the Companies, Section 11 of the Employment
Agreement (dealing with Indemnification) and your Indemnification Agreement with
JDN Realty, or as might otherwise exist under applicable law (collectively, the
"Governing Documents and Law"). JDN Realty and Development Company agree to
advance to you your reasonable expenses incurred to date pursuant to the
Governing Documents and Law, upon the receipt of an undertaking by you to repay
the amounts advanced should it ultimately be determined that you are not
entitled to indemnification in those amounts. All future advances and any
indemnification sought by you in the future shall be controlled by the Governing
Documents and Law.
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9. Representation of Full Disclosure. You hereby represent and warrant to
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JDN Realty and Development Company that you have fully and accurately disclosed
to the Special Committee of JDN Realty's Board of Directors your knowledge
regarding the Payments and Related Party Transactions. You understand and
acknowledge that JDN Realty and Development Company are entering into this
Agreement in reliance upon the representations contained in this paragraph, and
that a breach of such representations would constitute a material breach of this
Agreement.
10. No Other Representations. You represent and acknowledge that in
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executing this Agreement, you do not rely and have not relied upon any
representations or statements made by the Companies or by any of the Companies'
agents, representatives or attorneys with regard to the subject matter, basis or
effect of this Agreement or otherwise, except as set out herein.
11. Voluntary Agreement. The parties represent and agree that they have
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consulted with attorneys of their choosing, have had a full and fair opportunity
to consult with such attorneys, and that they have carefully read and considered
all aspects of this Agreement, and enter into it voluntarily and in exchange for
the consideration recited herein.
12. Successors. This Agreement shall be binding upon you and the
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Companies and upon their respective heirs, administrators, representatives,
executors, successors and assigns, and shall inure to the benefit of you, the
Companies, and your and their respective heirs, administrators, representatives,
executors, successors and assigns. This Agreement is personal to you, and you
may not assign or transfer any interests in, or rights or benefits under, this
Agreement.
13. Notices. Any notice required or permitted to be given under this
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Agreement shall be sufficient if in writing and if delivered by hand or by
certified or registered mail or by a nationally recognized overnight delivery
service, postage or other charges pre-paid, and addressed to: you, at the
address set forth above (if such notice is addressed to you), with a copy to
Xxxxxx X. Xxxxxx, Xxxxxx & Xxxxxx, 2700 International Tower, Peachtree Center,
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000-0000; or to JDN Realty
Corporation, 000 Xxxx Xxxxx Xxxxx Xxxx, X.X., Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
00000, Attention: President, with a copy to E. Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxxx
Xxxxxx & Xxxxx, PLLC, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000
(if such notice is addressed to the Companies), or such other address as may be
designated by a party hereto in written notice to the other party hereto. Such
notice shall be deemed to have been given or made on the date of delivery, if
delivered by hand, or on the next following date if sent by mail or overnight
delivery service.
14. Choice of Law; Attorneys' Fees. This Agreement is made and entered
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into in the State of Georgia and shall, in all respects, be interpreted,
enforced and
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governed under the laws of said State, without regard for the principles of
conflicts of laws thereof. Any action or proceedings brought by a party seeking
to enforce any provisions of, or based upon any right arising out of, this
Agreement may be brought against any of the parties hereto in the courts of the
State of Georgia for Xxxxxx County or, if it has or can acquire jurisdiction, in
a United States District Court for the State of Georgia sitting in Xxxxxx
County, and each of the parties consents to the jurisdiction of such courts (and
of the appropriate appellate courts) in any such action or proceeding and waives
any objection to venue laid therein. If legal action is commenced by either
party to enforce or defend its rights under this Agreement, the prevailing party
in such action shall be entitled to recover its costs and reasonable attorneys'
fees in addition to any other relief granted.
15. Miscellaneous. The language of all parts of this Agreement shall, in
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all cases, be construed as a whole, according to its plain meaning, and not
strictly for or against any of the parties, and rules of interpretation or
construction of contracts that would construe any ambiguity against the
draftsman shall not apply. Should any provision of this Agreement be declared
or be determined by any court to be illegal or invalid, the validity of the
remaining parts, terms or provisions shall not be affected thereby and said
illegal or invalid part, term or provision shall be deemed not to be part of
this Agreement. As used in this Agreement, the singular or plural number shall
be deemed to include the other whenever the context so indicates or requires.
This Agreement may be executed in any number of counterparts, each of which
shall for all purposes be deemed to be an original but each of which, when so
executed, shall constitute but one and the same instrument. In making proof of
this Agreement, it shall not be necessary to produce or account for more than
one such counterpart executed by the party against whom enforcement of this
Agreement is sought. This Agreement sets forth the final and entire agreement
between the parties hereto and fully supersedes any and all prior agreements or
understandings between the parties hereto pertaining to the subject matter
hereof. This Agreement may not be changed orally, but only by an instrument in
writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought. The section and paragraph
headings contained in this Agreement are for convenience of reference, and shall
not limit or control, or be used to construe, the meaning of any provision
herein. Any delay or omission by any party hereto in exercising any right
hereunder shall not operate as a waiver of such right.
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If you agree that the terms set forth herein constitute the complete and
final agreement of the parties with regard to your separation from the
Companies, please sign and date below and return this Agreement to JDN Realty
Corporation.
Sincerely,
JDN Realty Corporation
By: /s/ Xxxx X. Xxxxxx, Xx.
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Title: Vice President
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JDN Development Company, Inc.
By: /s/ Xxxx Xxxxxxxx
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Title: President
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Accepted and agreed to:
/s/ J. Xxxxxx Xxxxxxx
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J. Xxxxxx Xxxxxxx
5/19/00
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Date
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