Exhibit 10.1
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (the "Agreement")
is made by and between San Xxxx Water Company (the "Company"),
and Xxxxxx Xxx ("Employee") dated as of ___[separation
date]______, 2011.
RECITALS
A. Employee is an employee of the Company, serving as
Executive Vice President of Finance.
B. Employee serves as an Officer of San Xxxx Water
Company, SJW Land Company, SJW Corp., SJWTX, Inc. and Texas
Water Alliance Limited.
C. The Company and Employee have agreed to a voluntary
early retirement for Employee by which she shall cease
employment with the Company and will cease to serve as an
Officer of San Xxxx Water Company, SJW Land Company, SJW
Corp., SJWTX, Inc. and Texas Water Alliance Limited.
NOW THEREFORE, in consideration of the mutual promises
made herein, the Company and Employee (each, a "Party" and
collectively, the "Parties") hereby agree as follows:
AGREEMENT
1. Separation. The Parties agree that Employee's
employment with the Company will cease as of _____________ ,
2011 (the "Separation Date"). By that same date, Employee
shall cease to serve as an Officer of San Xxxx Water Company,
SJW Land Company, SJW Corp., SJWTX, Inc. and Texas Water
Alliance Limited and will no longer perform any further duties
with such companies or render services in any other capacity
to them. Accordingly on the Separation Date, Employee shall
incur a separation from service for purposes of Section 409A
of the Internal Revenue Code ("Section 409A"). Employee
acknowledges that Company has paid all salary, wages, bonuses,
accrued vacation, commissions and any and all other benefits
due to Employee through the Separation Date. However,
Employee's existing account balance under the San Xxxx Water
Company's Special Deferral Election Plan will be paid to
Employee in accordance with the payment elections Employee has
in effect under that plan, subject to any required six-month
holdback of one or more of those payments as required under
Section 409A and the provisions of such plan.
2. Consideration. If and only if this Agreement is
timely executed by the Employee and not revoked by the
Employee as set forth below, the Company agrees to pay
Employee the following amounts which Employee hereby
acknowledges and agrees would not otherwise be payable to her
in the absence of the general release required of her under
this Agreement:
a. Cash Bonus. A special bonus of Ten Thousand
Dollars ($10,000.00), less applicable withholdings, payable in
a lump sum on the first day of the seventh month following her
Separation Date;
b. Years of Credited Service. The Company will
credit the Employee with additional Years of Service under
the Executive Supplemental Retirement Plan to the extent
necessary to bring the Employee's total years of service under
that plan to 27.28 years (with the maximum normal retirement
benefit under such plan limited to sixty percent of the
Employee's "Final Average Compensation", as such term is
defined in the plan), and Employee acknowledges and agrees
that her monthly pension under such plan shall commence and be
paid in accordance with the payment elections made by the
Employee under such plan and in conformity with the applicable
requirements of Section 409A;
c. Employee Benefits. The Company shall reimburse
Employee for the COBRA coverage costs she incurs for continued
medical and dental care coverage under the Company's employee
group health plans through _____, _____. In order to obtain
such reimbursement, Employee must submit appropriate evidence
to the Company of each periodic payment of such COBRA coverage
costs within thirty (30) days after the required payment date
for those coverage costs, and the Company shall within thirty
(30) days after such submission reimburse Employee for that
payment. The amount of such COBRA coverage costs eligible for
reimbursement in any one calendar year shall not affect the
amount of such coverage costs eligible for reimbursement in
any other calendar year; and Employee's right to the
reimbursement of such COBRA coverage costs cannot be
liquidated or exchanged for any other benefit. To the extent
any such reimbursements constitute taxable income to Employee,
those reimbursements will be subject to the Company's
collection of the applicable withholding taxes. In no event
shall the Company reimburse more than $16,500 of such COBRA
coverage costs.
d. STI Bonus. In addition, Employee shall be
entitled to a cash payment in the amount of $_______, less
applicable withholdings, representing fifty percent (50%) of
Employee's target 2011 STI bonus, with such payment to be made
in a lump sum in calendar year 2012 when bonuses are paid to
the other officers, but in no event will such payment be made
to Employee prior to the first day of the seventh month
following her Separation Date or later than March 31, 2012.
3. Outstanding Equity Awards. Employee has been granted
options in accordance with the SJW Corp. Long-Term Incentive
Plan. Employee's cessation of service pursuant to this
Agreement will, for purposes of the "Cessation of Service"
provisions of her outstanding stock option agreements, be
considered as a "Normal Retirement." All other terms and
conditions of those options will be governed by the Long-Term
Incentive Plan and relevant Stock Option Agreements. Any
restricted stock unit awards granted to Employee that remain
unvested on her Separation Date shall be immediately
cancelled, and Employee shall cease to have any further right
or entitlement to receive any shares of SJW Corp. common stock
or other consideration under those cancelled awards.
4. Return of Property. Employee shall promptly return
to the Company all property of SJW Corp. or its subsidiaries,
including, without limitation, keys, pass cards, lap tops,
cellular phones, company vehicle, all other company equipment,
tangible proprietary information, documents, books, records,
reports, contracts, lists, computer disks (or other computer-
generated files or data), or copies thereof, created on any
medium, prepared or obtained by Employee in the course of or
incident to her employment with the Company.
5. Confidential Information. Employee shall continue to
maintain the confidentiality of all confidential and
proprietary information of SJW Corp. or its subsidiaries and
as required in the San Xxxx Water Company Employee Policies
and Procedures, of which Employee acknowledged receipt.
Specifically, Employee agrees that both during employment by
the Company and after termination, Employee shall keep in
confidence and trust all Confidential Information and
proprietary information of SJW Corp. or its subsidiaries and
of any client, customer, licensor or vendor of SJW Corp. or
its subsidiaries (collectively "the Proprietary Information"),
and shall not disclose such Proprietary Information or
anything relating to such Proprietary Information without the
prior written consent of the Company.
a. "Confidential Information" includes any
information and documents relating to or concerning business
information, business plans, revenue plans or projections,
business methodology, financial plans, technical information,
strategic planning, actual or intended product features, know-
how, show-how, processes, formulas, data, techniques,
statistics, specifications, service design, rate plans and
pricing, financial information, financial projections, trade
secrets, ideas, sketches, drawings, models, software programs,
improvements, inventions, techniques, source code, engineering
information, strategies, forecasts, computer programs,
copyrightable material, customer lists, clients, methodology,
market research, market surveys, distribution plans,
patentable inventions, current, future and proposed services
or products and marketing strategies conceived by, owned,
created, designed by, or pertaining to the Company, SJW Corp.
or SJW Corp.'s subsidiaries, or any client, customer, licensor
or vendor of the Company.
b. At all times, both during the remaining duration
of employment and after termination Employee shall not use any
Proprietary Information or anything relating to such
Proprietary Information without the prior written consent of
the Company, except as strictly necessary to perform the
services required by the Company prior to the effective date
of Employee's termination from the Company. All documents,
records, magnetic storage media and information thereon,
apparatus, equipment and other physical property, whether or
not pertaining to Proprietary Information, furnished by the
Company or produced by the Employee or others in connection
with the employment with the Company shall be and remain the
sole property of the Company and shall be returned to it
immediately as and when requested by the Company.
c. Employee shall return and deliver all such
property upon termination of employment and Employee will not
retain, remove or take any such property or any reproduction
of such property upon such termination. Without limiting the
foregoing, Employee shall return all of Proprietary
Information, and all copies of any Proprietary Information,
including without limitation notes, memoranda and other
documents concerning the Proprietary Information, to the
Company, upon termination of employment and within five
business days after request therefore by the Company.
6. Release of Claims. In consideration of the covenants
and promises set forth in this Agreement, Employee forever
releases and discharges the Company and the Company's
officers, directors, employees, agents, parents, investors,
stockholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and
assigns, the Company's parent corporation, SJW Corp., and its
officers, directors, employees, agents, parents, investors,
stockholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and
assigns, and any affiliated entities of the Company and/or SJW
Corp., including but not limited to SJW Land Company, SJWTX,
Inc., and Texas Water Alliance Limited and those entities'
officers, directors, employees, agents, parents, investors,
stockholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and
assigns (the "Releasees"), from, and agree not to xxx or
otherwise initiate legal or dispute resolution proceedings
against the Releasees concerning, any claim, duty, obligation
or cause of action relating to any matters of any kind,
whether presently known or unknown, suspected or unsuspected,
that the Employee may possess arising from any omissions, acts
or facts that have occurred up until and including the
Separation Date of this Agreement, including but not limited
to:
a. any and all claims relating to or arising from
Employee's employment relationship with the Company and the
termination of that relationship;
b. any and all claims relating to, or arising from,
Employee's right to purchase, or actual purchase of shares of
stock of the parent Company, SJW Corp. whether pursuant to
stock options or otherwise, including, without limitation, any
claims for fraud, misrepresentation, breach of fiduciary duty,
breach of duty under applicable state corporate law, and
securities fraud under any state or federal law;
c. any and all claims for wrongful discharge of
employment; termination in violation of public policy;
discrimination; harassment; breach of contract, both express
and implied; breach of a covenant of good faith and fair
dealing, both express and implied; promissory estoppel;
negligent or intentional infliction of emotional distress;
negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel;
slander; disparaging statements; negligence; personal injury;
assault; battery; invasion of privacy; false imprisonment;
conversion; and workers compensation and disability;
d. any and all claims for violation of any federal,
state or municipal statute, including, but not limited to,
Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Age Discrimination in Employment Act of 1967
(the "ADEA"), the Americans with Disabilities Act of 1990, the
Fair Labor Standards Act, the Employee Retirement Income
Security Act of 1974, The Worker Adjustment and Retraining
Notification Act, Older Workers Benefit Protection Act; the
Family and Medical Leave Act; the California Family Rights
Act; the California Fair Employment and Housing Act, and the
California Labor Code, including, but not limited to,
California Labor Code Sections 1400-1408;
e. any and all claims for violation of the federal,
or any state, constitution;
f. any and all claims arising out of any other laws
and regulations relating to employment or employment
discrimination; and
g. any and all claims for attorneys' fees and
costs.
The Parties agree that the release set forth in this section
shall be and remain in effect in all respects as a complete
general release as to the matters released. This release does
not extend to any obligations incurred pursuant to the terms
and provisions of this Agreement. This release also does not
release claims that cannot be released as a matter of law,
including, but not limited to: (1) Employee's right to file a
charge with or participate in a charge by the Equal Employment
Opportunity Commission, or any other local, state, or federal
administrative body or government agency that is authorized to
enforce or administer laws related to employment, against the
Company(with the understanding that any such filing or
participation does not give Employee the right to recover any
monetary damages against the Company, and Employee's release
of claims herein bars Employee from recovering such monetary
relief from the Company); (2) claims under Division 3, Article
2 of the California Labor Code (which includes California
Labor Code section 2802 regarding indemnity for necessary
expenditures or losses by employee); (3) claims prohibited
from release as set forth in California Labor Code section
206.5 (specifically "any claim or right on account of wages
due, or to become due, or made as an advance on wages to be
earned, unless payment of such wages has been made"), (4)
claims relating to payments and benefits to be provided
Employee pursuant to the express terms of this Agreement, (5)
claims for workers' compensation benefits or unemployment
compensation, (6) health insurance benefits under the
Consolidated Omnibus Budget Reconciliation Act (COBRA) and (7)
claims that, as a matter of applicable law, are not waivable
or otherwise subject to release.
7. Acknowledgment of Waiver of Claims under ADEA.
Employee acknowledges that she is waiving and releasing any
rights she may have under the ADEA and that this waiver and
release is knowing and voluntary. Employee and the Company
agree that this waiver and release does not apply to any
rights or claims that may arise under ADEA after the Effective
Date of this Agreement. Employee acknowledges that the
consideration given for this waiver and release Agreement is
in addition to anything of value to which Employee was already
entitled. Employee further acknowledges that she has been
advised by this writing that:
a. She should consult with an attorney prior to
executing this Agreement;
b. She has twenty-one (21) days from the later of
(i) the date she was presented with this Agreement or (ii) her
Separation Date within which to consider this Agreement before
executing it and delivering it to the Company;
c. She has seven (7) days following her execution
of this Agreement to revoke this Agreement;
d. This Agreement shall not be effective until
after the revocation period has expired;
e. Nothing in this Agreement prevents or precludes
Employee from challenging or seeking a determination in good
faith of the validity of this waiver under the ADEA, nor does
it impose any condition precedent, penalties, or costs for
doing so, unless specifically authorized by federal law.
In the event Employee signs this Agreement and returns it to
the Company in less than the applicable 21-day period
identified above, Employee hereby acknowledges that she has
freely and voluntarily chosen to waive the time period
allotted for considering this Agreement.
If Employee revokes this Agreement within the applicable seven
(7)-day revocation period, this Agreement shall not be
effective or enforceable, and Employee will not receive the
items of consideration for this Agreement set forth in section
2 above.
8. Civil Code Section 1542. The Parties represent that
they are not aware of any claim they have against each other,
other than the claims that are released by this Agreement.
The Parties acknowledge that they have been advised by legal
counsel and are familiar with the provisions of California
Civil Code Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED
HIS OR HER SETTLEMENT WITH THE DEBTOR.
Employee, being aware of said code section, agrees to
expressly waive any rights he may have thereunder, as well as
under any other statutory or common law principles of similar
effect.
9. No Pending or Future Lawsuits. Each Party represents
that it/she has no lawsuits, claims, or actions pending in
its/her name, or on behalf of any other person or entity,
against the other Party or any other person or entity referred
to herein. Each Party also represents that it/she does not
intend to bring any claims on its/her own behalf or on behalf
of any other person or entity against the other Party or any
other person or entity referred to herein. Employee further
agrees to waive any right to re-employment with the Company.
10. Non-Disparagement. The Parties agree that it/she
shall make no negative statements to third parties concerning,
or take any action that disparages or denigrates the other
Party, or its services, products, reputation, administration,
employees, financial status, or operations, or take any action
that damages or interferes with any of the other Party's
existing or prospective business relationships.
11. No Cooperation. The Parties agree that they will not
counsel or assist any attorneys or their clients in the
presentation or prosecution of any disputes, differences,
grievances, claims, charges, or complaints by any third party
against the other Party to this Agreement and/or any officer,
director, employee, agent, representative, stockholder or
attorney of the other Party, unless under a subpoena or other
court order to do so.
12. Nondisclosure Agreement by the Company. Unless
authorized in writing by Employee, Company agrees that it will
make no disclosures concerning the Employee's employment or
other information regarding the Employee except for confirming
employment, job title, dates of service, and rate of pay, plus
additional information as, and only as, required pursuant to
subpoena or otherwise required by law.
13. No Admission of Liability. The Parties understand
and acknowledge that this Agreement constitutes a compromise
and settlement of disputed claims. No action taken by the
Parties hereto, or either of them, either previously or in
connection with this Agreement shall be deemed or construed to
be (a) an admission of the truth or falsity of any claims
heretofore made or (b) an acknowledgment or admission by
either party of any fault or liability whatsoever to the other
party or to any third party.
14. Arbitration.
a. The Parties agree that any and all disputes
arising out of, relating to, or in connection with this
Agreement, the interpretation, validity, construction,
performance, breach, or termination hereof or any of the
matters herein released, shall be subject to binding
arbitration in Santa Xxxxx County, California in accordance
with the National Rules for the Resolution of Employment
Disputes then in effect of the American Arbitration
Association (the "Rules"). The Parties agree that the
prevailing party in any arbitration shall be entitled to
injunctive relief in any court of competent jurisdiction to
enforce the arbitration award. The Parties agree that each
party in any arbitration shall be responsible for such party's
costs.
b. EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION
14, WHICH DISCUSSES ARBITRATION. EMPLOYEE UNDERSTANDS THAT BY
SIGNING THIS AGREEMENT, EMPLOYEE AGREES TO SUBMIT ANY CLAIMS
ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS
AGREEMENT, THE INTERPRETATION, VALIDITY, CONSTRUCTION,
PERFORMANCE, BREACH OR TERMINATION THEREOF, OR ANY OF THE
MATTERS HEREIN TO BINDING ARBITRATION, AND THAT THIS
ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO
A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES
RELATING TO ALL ASPECTS OF THIS SEVERANCE AGREEMENT AND
RELEASE OF ALL CLAIMS.
15. Authority. The Company represents and warrants that
the undersigned has the authority to act on behalf of the
Company and to bind the Company and all who may claim through
it to the terms and conditions of this Agreement. Employee
represents and warrants that she has the capacity to act on
her own behalf and on behalf of all who might claim through
her to bind them to the terms and conditions of this
Agreement. Each Party warrants and represents that there are
no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action
released herein.
16. Successors and Assigns. Any references to the
Company shall be interpreted to include a reference to any
successor or resultant company in the event of a merger or
acquisition or sale of substantially all of the Company's
assets. Any such successor or resultant company shall be and
remain liable for all of Company's responsibilities and
obligations hereunder.
17. No Representations. Each party represents that it
has had the opportunity to consult with an attorney, and has
carefully read and understands the scope and effect of the
provisions of this Agreement. Neither party has relied upon
any representations or statements made by the other party
hereto which are not specifically set forth in this Agreement.
18. Severability. In the event that any provision hereof
becomes or is declared by a court of competent jurisdiction to
be illegal, unenforceable or void, this Agreement shall
continue in full force and effect without said provision.
19. Entire Agreement. This Agreement represents the
entire agreement and understanding between the Company and
Employee concerning Employee's employment with, and separation
from the Company, and supersedes and replaces any and all
prior agreements and understandings concerning Employee's
relationship with the Company and her compensation by the
Company. This Agreement supersedes in its entirety any offer
letter or other employment agreement which shall be of no
further force or effect.
20. No Oral Modification. This Agreement may only be
amended in writing signed by Employee and the President or
Chief Executive Officer of the Company following approval of
such amendment by the Company's Board of Directors or the
Executive Compensation Committee thereof.
21. Governing Law. This Agreement shall be governed by
the internal substantive laws, but not the choice of law rules
of the State of California.
22. Effective Date. If Employee timely signs the
Agreement within the applicable twenty-one (21) day period
provided in section 7 above, Employee has seven (7) days after
she signs the Agreement to revoke it. In order to revoke the
acceptance of the agreement effectively, Employee must provide
written notice to W. Xxxxxxx Xxxx, President and CEO, on or
before that date, and in that event, Employee shall not become
entitled to any of the items of consideration set forth in
section 2 above. This Agreement will become effective on the
eighth (8th) day after Employee signed this Agreement, so long
as it has been signed by the Employee and has not been revoked
by Employee before that date (the "Effective Date").
23. Expiration of Agreement. This Agreement is
executable until ____________, 2011 (the "Expiration Date").
This Agreement is null and void if the Company has not
received a copy of the Agreement executed by the Employee on
or before the Expiration Date.
24. Counterparts. This Agreement may be executed in
counterparts, and each counterpart shall have the same force
and effect as an original and shall constitute an effective,
binding agreement on the part of each of the undersigned.
25. Voluntary Execution of Agreement. This Agreement is
executed voluntarily and without any duress or undue influence
on the part or behalf of the Parties hereto, with the full
intent of releasing all claims. The Parties acknowledge that:
a. They have read this Agreement;
b. They have been represented in the preparation,
negotiation, and execution of this Agreement by legal counsel
of their own choice or that they have voluntarily declined to
seek such counsel;
c. They understand the terms and consequences of
this Agreement and of the releases it contains;
d. They are fully aware of the legal and binding
effect of this Agreement; and
e. This release offer will expire on _________,
2011 if the Company has not received a copy of the Agreement
executed by Employee as of that date.
IN WITNESS WHEREOF, the Parties have executed this Agreement
on the respective dates set forth below.
SAN XXXX WATER COMPANY
Dated: __________, 2011 By:
____________________
W. Xxxxxxx Xxxx
Title: President and CEO
Dated: __________, 2011 EMPLOYEE
____________________
Xxxxxx Xxx
