Exhibit 10.31
March 22, 2002
Mr. C. Xxxxxx Xxxxxxxxxxx
c/o Security Capital Group Incorporated
000 Xxxxxxx Xxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Dear Xx. Xxxxxxxxxxx:
In connection with the anticipated merger (the "Merger") of Security
Capital Group, Inc. (the "Company") with and into an indirect subsidiary of
General Electric Capital Corporation ("GE Capital"), we are entering into the
following agreement (this "Agreement"). You, the Company and GE Capital hereby
agree as follows:
1. Restrictive Covenants and Confidentiality. In return for your agreeing
to the terms of this Agreement, including the restrictive covenants set forth in
this paragraph 1, GE Capital shall cause the Company to pay to you, or in the
event of your death, your estate, a payment by wire transfer in the amount of
seven million, five hundred and thirty-five thousand and four hundred and
sixty-seven dollars ($7,535,467) (less applicable withholding taxes), at the
time at which the Merger becomes effective ("the Effective Time").
(a) Noncompetition. You agree that for a period of eighteen (18) months
from the Effective Time (the "Restricted Period"), you will not, directly or
indirectly, be employed as an executive officer, serve on the Board of
Directors, or otherwise actively participate in the management of any business
that is engaged in a Competitive Business, as defined herein. For purposes of
this Agreement, "Competitive Business" means ownership and operation of any of
the following: (i) self-storage facilities ("Storage Assets"), (ii)
grocery-store, drug store or general merchandise discount store anchored
shopping centers under 250,000 square feet of leasable area ("Grocery Assets")
or (iii) central business district parking facilities, whether on a domestic or
international basis ("Parking Assets") (each of Storage Assets, Grocery Assets
and Parking Assets is referred to below as a "Restricted Assets Class").
"Competitive Business" does not include ownership of any assets in a Restricted
Assets Class that are incidental to other real estate assets owned by the entity
(for example, a company that owns office properties that include garage
facilities or retail facilities). Notwithstanding the foregoing:
(1) You may be employed as an executive officer, serve on the Board of
Directors, or otherwise actively participate in the management of any
entity that has or makes investments in the Restricted Asset Classes
provided that the following criteria are
met: (A) at the time you begin serving in such capacity, the entity
does not own, control, or manage more than $250 million of Storage
Assets, more than $250 million of Grocery Assets, or more than $200
million of Parking Assets ; and (B) the entity does not acquire, in
any calendar year, more than $150 million of Storage Assets, more than
$150 million of Grocery Assets, or more than $100 million of Parking
Assets. The dollar amounts in the preceding sentence refer to the
original purchase price for the assets in question.
(2) You may be employed by or otherwise affiliated with a private
investment, leveraged buy-out or real estate advisory firm that
invests as a principal or advises clients engaged in a Competitive
Business that does not meet the requirements of subparagraph (1)
above, so long as you do not personally participate in the firm's
decisions and activities relating to such investments or client
services.
(3) You may continue your affiliation with Zebec Data Systems. You may
continue your affiliation with Security Capital European Realty until
such time that GE Capital requests in writing that you cease your
affiliation with Security Capital European Realty.
(b) Nonsolicitation. You agree that during the Restricted Period, you
shall not, whether for you or for any other person, business, partnership,
association, firm, company or corporation, solicit, divert or take away any of
the customers (entities or individuals from which the Company or any of its
affiliates receives rents or payments for services) of the Company or any
affiliate thereof or employees of the Company or any affiliate thereof in
existence from time to time during your employment with the Company or any
affiliate thereof and at the time of such initiation, solicitation or diversion.
For purposes of this paragraph 1(b), "affiliate" means any affiliate of the
Company immediately prior to the Effective Time that continues to be an
affiliate of the Company at the relevant time. Notwithstanding anything in this
agreement to the contrary, you may make general solicitations for employees
and/or customers through customary industry channels (including, but not limited
to, the public media).
(c) Nondisparagement. You agree that during the Restricted Period, you
shall not make or cause to be made to the media, public interest groups, trade
associations or publishing companies any disparaging statements regarding the
Company or any of its affiliates that are intended to cause demonstrable and
material economic damage to the Company or any of its affiliates.
(d) Confidentiality. You acknowledge that in connection with your
employment with the Company and its subsidiaries, you obtained knowledge about
confidential and proprietary information, or trade secrets of the Company,
including but not limited to lists of customers, technical information about
products and price
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information. You agree not to use, publish or otherwise disclose any such
information to others without the prior written approval of the Company, except
in the normal course of carrying out your employment duties with the Company.
Notwithstanding the foregoing, the restrictions of this subparagraph (d) shall
not apply to information that is or shall become generally known to the public
or the trade (except by reason of your breach of your obligations hereunder),
information that is or shall become available in trade or other publications,
information known to you prior to entering the employ of the Company, and
information that you are requested or required to disclose by law or an order of
a court of competent jurisdiction or other legal process (provided that prior to
your disclosure of any such information required by law or order of such court,
you provide the Company with reasonable notice and a reasonable opportunity to
seek a protective order to prevent such disclosure).
(e) Employment Release. Except as provided in paragraph 1(e)(iii),
effective as of the date hereof, you and your heirs, assigns, and agents
release, waive, and discharge GE Capital, the Company and their affiliates and
their respective directors, officers, employees, subsidiaries, affiliates, and
agents (collectively, the "Released Persons") from each and every claim, action
or right of any sort, known or unknown, arising on or before the date hereof
that arises out of, or relates to, your employment by the Company or any of its
affiliates.
(i) Except as provided in subparagraph (iii) below, the foregoing release
includes, but is not limited to, any claim of discrimination on the basis of
race, sex, religion, marital status, sexual orientation, national origin,
handicap or disability, age, veteran status, special disabled veteran status, or
citizenship status; any other claim based on a statutory prohibition; any claim
arising out of or related to an express or implied employment contract, any
other contract affecting terms and conditions of employment, or a covenant of
good faith and fair dealing; any tort claims and any personal gain with respect
to any claim arising under the qui tam provisions of the False Claims Act, 31
U.S.C. 3730.
(ii) You represent that you understand the foregoing release, that rights
and claims under the Age Discrimination in Employment Act of 1967, as amended,
("ADEA") are among the rights and claims against the Released Persons you are
releasing, and that you understand that you are not releasing any rights or
claims arising after the Effective Time.
(iii) This release shall not apply to any claim, action or right that you
have under any of the Company's employee benefit plans, programs or
arrangements, fringe benefits or perquisites (including any contractual right to
reimbursement upon the sale of a principal residence), other than your rights
under any change in control agreement or related agreement, including the Change
in Control Agreement entered into on November 29, 2001 and the letter agreement,
the attached term sheet and the letter agreement concerning equity compensation,
each dated December 14, 2001.
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(iv) You acknowledge that before entering into this Agreement, you have had
the opportunity to consult with any attorney or other advisor of your choice,
and that this Agreement constitutes advice from the Company to do so if you
choose. You further acknowledge that you have entered into this Agreement of
your own free will, and that no promises or representations have been made to
you by any person to induce you to enter into this Agreement other than the
express terms set forth herein. You further acknowledge that you have read this
Agreement and understand all of its terms, including the waiver of rights set
forth in paragraph 1(e) of this Agreement above. You may revoke this Agreement
after signing it, but only by delivering a signed revocation notice to the
Company within seven (7) days of signing this Agreement.
2. Successors. This Agreement and all your rights hereunder shall inure to
the benefit of and be enforceable by your personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. This Agreement shall be binding upon the Company, GE Capital and their
respective successors. The Company and GE Capital each shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of its business and/or assets to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company or GE Capital, as applicable, would be required
to perform it if no succession had taken place.
3. Injunctive Relief. You acknowledge that the services rendered by you to
the Company and its subsidiaries are of a special, unique and extraordinary
character and, in connection with such services, you had access to confidential
information vital to the Company's and its subsidiary companies' businesses. By
reason of this, you consent and agree that if you violate any of the provisions
of paragraph 1 of this Agreement, GE Capital, the Company and their subsidiary
companies would sustain irreparable harm and, therefore, the Company shall be
entitled to an injunction restraining you from committing or continuing any such
violation of this Agreement, and GE Capital and the Company acknowledge that
injunctive relief shall be their sole and exclusive remedy if you violate any of
the provisions of paragraph 1 of this Agreement
4. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by you and by the Company and GE Capital. This Agreement constitutes the
complete understanding between the parties with respect to matters contained
herein and supersedes any other prior oral or written agreements, arrangements
or understandings between you and the Company and/or GE Capital to the extent
set forth herein, other than pursuant to the letter agreement entered into as of
the date hereof with respect to your continuing employment with the Company (the
"Employment Letter Agreement"). No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement,
other than pursuant to the Employment Letter Agreement. This Agreement may not
be changed or terminated orally but only by an agreement in writing signed by
the parties hereto. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the
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State of New York. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
5. Fees. In the event that it shall be necessary or desirable for you to
retain legal counsel or incur other costs and expenses in connection any dispute
arising under this Agreement, the Company shall pay (or you shall be entitled to
recover from the Company, as the case may be) your reasonable attorneys' fees
and costs and expenses in connection with enforcement of your rights (including
the enforcement of any award in court). Payments shall be made to you at the
time such fees, costs and expenses are incurred. If, however, it is determined
by the court adjudicating the relevant matter that, under the circumstances,
payment by the Company of all or a part of any such fees and costs and expenses
would be unjust, you shall repay such amounts to the Company in accordance with
such order.
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If the foregoing is satisfactory, please so indicate by signing and
returning to the Company the enclosed copy of this letter whereupon this will
constitute our agreement on the subject.
SECURITY CAPITAL GROUP, INC.
By:
--------------------------------
Name:
Title:
Date and Time:
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GENERAL ELECTRIC CAPITAL CORPORATION
By:
--------------------------------
Name:
Title:
Date and Time:
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ACCEPTED AND AGREED TO:
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C. XXXXXX XXXXXXXXXXX
Date and Time:
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