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EXHIBIT 10.1
SEVERANCE AGREEMENT AND MUTUAL GENERAL RELEASE
This Severance Agreement and Mutual General Release
(hereinafter "Agreement") is entered into this 31st day of July, 1997, by and
between Xxxxxxxx X. Xxxxx ("Xxxxx") and Bay Apartment Communities, Inc., a
Maryland corporation ("Bay") (Xxxxx and Bay are hereinafter referred to
collectively as the "Parties").
This Agreement is entered into based on the following facts
and premises:
RECITALS
A. Beginning in April of 1992, Xxxxx was employed by
Greenbriar Development Company, a California corporation, which subsequently
changed its name and was merged into Bay.
B. Since 1994, Xxxxx has been employed by Bay pursuant
to an Employment Agreement dated March 10, 1994 (the "Employment Agreement"),
which provides that Xxxxx may be entitled to certain severance benefits under
certain conditions upon the termination of his employment with Bay.
X. Xxxxx plans to be married in August of 1997, and he
and his wife-to-be are planning to move to Michigan. Accordingly, Xxxxx wishes
to end his employment with Bay.
D. The Parties now wish to terminate the Employment
Agreement, upon the terms and conditions set forth herein.
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WHEREFORE, in consideration of the mutual promises set forth
herein, Xxxxx and Bay agree as follows:
1. Termination of Employment. The Employment Agreement
is hereby terminated, with the exception of paragraphs 8 and 9, which expressly
provide that they shall survive the termination of the Employment Agreement.
Effective upon a date to be determined by Bay in its sole discretion, which
date shall be no later than September 5, 1997, Xxxxx will terminate his
employment with and resign as an officer of Bay. In addition, upon request by
Bay, Xxxxx shall resign from the Board of Directors of Bay, such resignation to
be effective on or before September 5, 1997. Xxxxx shall execute any and all
documents, and take such other action necessary and proper to effect such
resignation or to give effect to Xxxxx'x termination of employment with Bay.
Xxxxx agrees not to resign as an employee, officer, or director of Bay until
requested to do so by Bay.
2. Severance. Bay will pay Xxxxx as xxxxxxxxx his
current base salary of One Hundred Sixty-Five Thousand Dollars and No Cents
($165,000.00) per year through and including March 10, 1998 (prorated), in
accordance with the usual and customary payroll practices of Bay. Bay will
deduct from Xxxxx'x payments hereunder usual and customary payroll taxes,
including, but not limited to, withholding, FICA, SDI, and any other deductions
required by law or authorized by Xxxxx. On or before March 10, 1998, Bay will
also pay Xxxxx for any accrued, unused vacation (calculated on the basis of his
current base salary). For purposes of this calculation, Xxxxx'x vacation
accruals will
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continue to accrue through and including and will cease as of March 10, 1998.
The payment of any accrued vacation to Xxxxx hereunder shall not extend his
employment or any rights he may have arising out of his employment (including
rights relating to any stock grants or stock options) beyond March 10, 1998.
Xxxxx will not receive any monetary compensation from Bay, including any bonus
compensation, other than as set forth in this paragraph 2.
3. Benefits. At Bay's expense, Bay will maintain on
Xxxxx'x behalf health and dental coverage, life insurance, disability
insurance, and any other benefits maintained for other executive officers of
Bay through and including March 10, 1998 on the same terms and conditions
applicable to other executive officers of Bay. After March 10, 1998, Xxxxx
will be entitled to elect continuation coverage under the provisions of
applicable law, including COBRA. In addition, Xxxxx will continue to be
eligible to participate in Bay's 401(k) plan, and Bay will continue its
contributions to the plan on behalf of Xxxxx, through and including March 10,
1998, on the same terms and conditions applicable to other executive officers
of Bay.
4. Xxxxx'x Stock Rights.
4.1 Stock Options and Grants. The Parties
acknowledge that Xxxxx has been granted certain stock grants, stock options,
and restricted stock under the Bay 1994 Stock Incentive Plan, as amended and
restated (hereinafter "Bay Stock Incentive Plan"), which are summarized on
Schedule "A" attached hereto. For purposes of Xxxxx'x rights under the Bay
Stock
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Incentive Plan, Xxxxx'x employment will be treated as terminated March 10,
1998. Accordingly, all outstanding stock options granted to Xxxxx under the
Bay Stock Incentive Plan shall continue to vest through and including March 10,
1998. On March 11, 1998, all such stock options shall immediately terminate
and be of no further force and effect; provided, however, that Xxxxx may
exercise any stock option, to the extent it was exercisable on March 10, 1998,
through and including June 10, 1998. In connection therewith, Bay agrees that
it shall assist Xxxxx to the same extent Bay assists its full-time employees in
effecting the exercise of stock options and the issuance of certificates
representing the shares therefor through and including June 10, 1998. In
addition, all restricted stock granted to Xxxxx under the Bay Stock Incentive
Plan shall continue to vest through and including March 10, 1998 and shall
cease vesting thereafter. In accordance with the terms of the Restricted Stock
Agreements between Bay and Xxxxx, dated August 6, 1996 and February 3, 1997,
respectively (the "Restricted Stock Agreements"), the Parties acknowledge that
Bay is hereby delivering written notice of its election to repurchase all
Unvested Shares (as such term is defined in the Restricted Stock Agreements)
from Xxxxx at the repurchase price of $0.00 and Xxxxx acknowledges that such
notice shall satisfy all notice requirements under the Restricted Stock
Agreements. Such repurchase of Xxxxx'x Unvested Shares, and the surrender to
Bay of the certificates representing such Unvested Shares in accordance with
Sections 3.2 of the Restricted Stock Agreements,
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shall occur on March 10, 1998 or as soon as practicable thereafter.
Notwithstanding anything contained in this paragraph 4.1, Xxxxx shall not be
entitled to receive any additional awards under the Bay Stock Incentive Plan
after the date hereof.
4.2 Stock Purchase Plan. For purposes of Xxxxx'x
rights under the Bay 1996 Non-Qualified Employee Stock Purchase Plan, Xxxxx
will not be treated as an employee of Bay from and after the date hereof, and
any balance in Xxxxx'x account under such Plan will be paid to Xxxxx as soon as
practicable thereafter.
5. Xxxxx'x Transition and Continuing Duties. From the
date of this Agreement through and including March 10, 1998, Xxxxx agrees to
cooperate with Bay in transitioning his work and duties to other Bay employees,
to respond to questions or provide information requested by management, and to
give status reports as to work in process. As part of these duties, Xxxxx
agrees to devote approximately 80 hours of time per month to work for Bay, and
further agrees (as part of the 80 hours per month) to travel to Bay's offices
in California on an as needed basis, and upon reasonable notice, at Bay's
request. Bay will pay all reasonable and necessary meals, lodging, and travel
costs (airfare limited to business class) incurred by Xxxxx in connection with
any such trip. Xxxxx also specifically agrees to explain fully the growth
model he developed while employed by Bay, including all assumptions and
operations pertinent thereto, and agrees to update the growth model on a
regular basis, consistent with his past practices. Xxxxx further agrees that
he shall, upon
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reasonable notice, and upon reimbursement for reasonable expenses, cooperate
with Bay and/or the Bay Releasees (including preparing for, appearing for, and
testifying at depositions and trial) regarding any claim, litigation, or
inquiry or proceeding by any governmental agency, concerning any matter with
which Xxxxx was involved while working for Bay.
6. Mutual Releases.
6.1 Release by Xxxxx. Xxxxx hereby releases and
discharges Bay, and each of its subsidiaries and affiliated corporations and
partnerships, and (as applicable) each of their individual or collective past,
present, and future directors, officers, employees, representatives,
shareholders, partners, agents, insurers, attorneys, administrators,
accountants, executors, heirs, assigns, predecessors, and
successors-in-interest, and all persons acting by, through, or in concert with
any of them (hereinafter referred to collectively as "Bay Releasees") from any
and all claims, charges, complaints, debts, liabilities, demands, obligations,
promises, agreements, costs, expenses (including, but not limited to,
attorneys' fees and costs), damages, suits, actions, and causes of action of
any kind or nature whatsoever, whether now known or unknown, suspected or
unsuspected, foreseen or unforeseen, which may have existed, exist, and/or may
exist as of the date of this Agreement, including, but not limited to, any and
all claims relating or pertaining to or arising out of Xxxxx'x employment by
Bay, the cessation of Xxxxx'x employment, Xxxxx'x dealings with Bay and/or the
Bay Releasees during his employment, any conduct of Bay
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and/or the Bay Releasees during Xxxxx'x employment, any statements made by Bay
and/or the Bay Releasees relating or pertaining to Xxxxx'x employment, any and
all rights which Xxxxx may have under any and all agreements between Xxxxx and
Bay relating to Xxxxx'x employment, whether written, oral, or implied,
including, but not limited to, that certain "Employment Agreement" dated March
10, 1994 between Xxxxx and Bay (and any extensions thereto or modifications
thereof), and any and all charges or complaints which were filed or could have
been filed with any administrative agency or tribunal having the power to
investigate or enforce compliance with local, state or federal labor laws,
equal opportunity laws, or civil rights laws. The releases set forth in this
paragraph 6.1 extend to all actions and conduct of Bay and/or the Bay Releasees
relating to Xxxxx'x employment and/or termination of employment. The releases
set forth in this paragraph 6.1 are a general release of all claims, demands,
causes of action, obligations, damages, and liabilities of any nature
whatsoever that are described in this Agreement and are intended to encompass
all known and unknown, foreseen and unforeseen, suspected and unsuspected
claims as of the date of this Agreement. Xxxxx acknowledges that the releases
set forth in this paragraph 6.1 constitute a full, complete and knowing waiver
of any claims asserted or unasserted which he may have against Bay and/or the
Bay Releasees arising out of his employment and termination of employment,
including any claims he may have under the laws of the State of California for
tort, breach of contract, or equitable relief, or under any federal,
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state or local statute, regulation, rule, ordinance or order which covers or
purports to cover or relates to any aspect of employment including, but not
limited to, discrimination based on race, color, sex, age, marital status,
religion, national origin, ancestry, physical disability, mental disability, or
medical condition under the Civil Rights Act of 1866, Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act, the Americans
With Disabilities Act, the Family and Medical Leave Act, the California Fair
Employment and Housing Act, and any other state or federal civil rights or
equal employment opportunity laws. The releases set forth in this paragraph
6.1 are sometimes collectively referred to as the "Released Claims."
Notwithstanding the foregoing, the Released Claims
shall not extend to or include Xxxxx'x rights under the Bay Stock Incentive
Plan, or the options or restricted stock granted to Xxxxx pursuant thereto, or
Xxxxx'x rights under Bay's 401(k) Savings Plan, or any retirement or pension
plan sponsored by Bay, or any rights to indemnity Xxxxx may have under Bay's
Articles of Incorporation, as amended, or Bylaws, as amended.
6.2 Release by Bay. Conditioned on the
truthfulness and accuracy of Xxxxx'x representations and warranties contained
in paragraph 8.1 as of the date hereof, Bay hereby releases and discharges
Xxxxx, and (as applicable) each of his individual or collective past and
present agents, insurers, attorneys, accountants, executors, heirs, assigns,
predecessors, and successors-in-interest, and all persons acting by, through,
or in concert with any of them (hereinafter referred to
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collectively as "the Xxxxx Releasees") from any and all claims, charges,
complaints, debts, liabilities, demands, obligations, promises, agreements,
costs, expenses (including, but not limited to, attorneys' fees and costs),
damages, suits, actions, and causes of action of any kind or nature whatsoever,
whether now known or unknown, suspected or unsuspected, foreseen or unforeseen,
which may have existed, exist, and/or may exist as of the date of this
Agreement, including, but not limited to, any and all claims relating or
pertaining to or arising out of Xxxxx'x employment by Bay, the cessation of
Xxxxx'x employment, Xxxxx'x dealings with Bay and/or the Bay Releasees during
Xxxxx'x employment, any conduct of Xxxxx or the Xxxxx Releasees during Xxxxx'x
employment, any statements made by Xxxxx or the Xxxxx Releasees relating or
pertaining to Bay, and any and all rights which Bay may have under any and all
agreements between Xxxxx and Bay relating to or arising out of Xxxxx'x
employment, whether written, oral, or implied, with the exception of paragraphs
8 and 9 of the Employment Agreement. The releases set forth in this paragraph
6.2 extend to all actions and conduct of Xxxxx and/or the Xxxxx Releasees
relating to his conduct, performance, employment, and/or termination of
employment. The releases set forth in this paragraph 6.2 are a general release
of all claims, demands, causes of action, obligations, damages, and liabilities
of any nature whatsoever that are described in this Agreement and are intended
to encompass all known and unknown, foreseen and unforeseen, suspected and
unsuspected claims as of the date of this Agreement. Bay acknowledges that the
releases set forth in
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this paragraph 6.2 constitute a full, complete and knowing waiver of any
claims, asserted or unasserted, which it may have against Xxxxx and/or the
Xxxxx Releasees arising out of Xxxxx'x conduct, performance, employment, and
termination of employment. The releases set forth in this paragraph 6.2 are
sometimes collectively referred to as the "Released Claims."
Notwithstanding the foregoing, the Released Claims
shall not extend to or include Bay's rights under the Bay Stock Incentive Plan
or the options or restricted stock granted to Xxxxx pursuant thereto, or to any
claims which Bay may have arising out of Xxxxx'x criminal conduct.
7. Section 1542 Waiver. The Parties acknowledge that
after making this Agreement, they may discover different or additional facts
about the Released Claims, but this release will remain effective in all
respects. The Parties expressly waive all rights and benefits under Section
1542 of the California Civil Code, which provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him, must have
materially affected his settlement with the debtor.
In this connection, the Parties acknowledge that they may hereafter discover
facts different from or in addition to the facts which they now know or believe
to be true with regard to the Released Claims and they further agree that this
Agreement shall
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remain effective in all respects notwithstanding such discovery of such new or
different facts.
8. Representations and Warranties.
8.1 Xxxxx'x Representations and Warranties.
Xxxxx represents and warrants:
8.1.1 That he has not filed any
complaints or charges against Bay and/or any of the Bay Releasees, with the
Equal Employment Opportunity Commission, the Department of Fair Employment and
Housing, or any other local, state or federal agency, tribunal, or court,
relating to Released Claims, and that if any such agency, tribunal, or court
assumes jurisdiction of any such complaint or charge on behalf of Xxxxx
relating to Released Claims, then he will withdraw the matter, and request that
the agency, tribunal, or court dismiss the matter.
8.1.2 That he has not heretofore
assigned or transferred or purported to assign or transfer to any person any
Released Claim.
8.1.3 That prior to signing this
Agreement, he has been advised to consult with an attorney, and has had the
opportunity to consult with an attorney.
8.1.4 That as of the date he signs this
Agreement, he is under the age of forty (40) years.
8.1.5 That he has read this Agreement
and understands it, and that he is entering into this Agreement knowingly,
voluntarily, and with the advice of counsel.
8.1.6 That he has not entered into any
agreement on behalf of Bay that is materially inconsistent with
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the minutes, resolutions, or other instructions of the Board of Directors, or
that is inconsistent with his past practices.
8.1.7 That as of the moment he signs
this Agreement, he has not violated the provisions of paragraph 9 of the
Employment Agreement.
8.1.8 That as of the moment he signs
this Agreement, he has not made any statements or engaged in any conduct which
would be a violation of paragraph 11 ("No Assistance") or paragraph 12
("Non-Disparagement") of this Agreement.
8.2 Bay's Representations and Warranties. Bay
represents and warrants:
8.2.1 That Bay has not heretofore
assigned or transferred or purported to assign or transfer to any person any
Released Claim.
8.2.2 That prior to signing this
Agreement, Bay has had the opportunity to consult with counsel, and has
consulted counsel.
8.2.3 That Bay has read this Agreement
and understands it, and that Bay is entering into this Agreement knowingly and
voluntarily, and with the advice of counsel.
8.2.4 That the person signing this
Agreement on behalf of Bay is authorized to do so.
8.2.5 That as of the moment Bay signs
this Agreement, Bay has not made any statements or engaged in any conduct which
would be a violation of paragraph 12 ("Non-Disparagement") of this Agreement.
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9. Return of Property. As of the date of Xxxxx'x
resignation pursuant to paragraph 1, Xxxxx shall disclose to Bay all property
or things in his possession which belong to Bay, including, but not limited to,
keys, entry access cards, alarm codes, credit cards, files, records, manuals,
etc. (the "Bay Property") As of March 10, 1998, and to the extent he has not
already done so, Xxxxx shall return and/or deliver to Bay all of the Bay
Property.
10. Compromise. The Parties agree that this Agreement is
being entered into in order to provide for the orderly termination of Xxxxx'x
employment by Bay, to transition his duties and responsibilities to others at
Bay, and to identify the benefits to which Xxxxx is entitled by virtue of the
termination of his employment. This Agreement shall not be deemed or construed
as an admission that either Party acted wrongfully with respect to the other
Party or their respective Releasees, that either Party has any rights against
the other Party or their respective Releasees, or that either Party has any
liability to the other Party or their respective Releasees. This Agreement
represents a compromise of any issues that may be in dispute between the
Parties arising out of Xxxxx'x employment by Bay and the termination thereof.
11. No Assistance. Xxxxx agrees that, except as required
by law, he has not and will not encourage, assist, or aid any other person in
asserting any charge, claim, or complaint against Bay or the Bay Releasees, and
will not voluntarily participate in any investigation, claim, arbitration,
lawsuit,
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action, or any other type of proceeding against Bay or the Bay Releasees.
12. Non-Disparagement. Each Party agrees not to
disparage or defame the other Party, any of the Releasees, or any programs,
services, or products offered by or through such Party or the Releasees.
13. Proprietary Information. Xxxxx acknowledges that:
a. Any and all products, improvements,
inventions and/or creations conceived or made by him during the period of his
employment with Bay relating in any way to the activities or business of Bay,
or its parents, subsidiaries, or affiliates (collectively the "Company"), are
the sole and exclusive property of the Company or its nominee; and if requested
to do so at any time hereafter, Xxxxx shall execute any and all applications,
assignments and other instruments which the Company in its sole reasonable
discretion shall deem necessary in order to apply for and obtain Certificates
of Registration or Letters of Patent of the United States of America and
foreign countries covering said products, improvements, inventions or creations
and in order to assign and convey to the Company or its nominee the sole and
exclusive right, title and interest therein. These obligations shall be
binding upon Xxxxx'x assigns, executors, administrators or other legal
representatives; and
b. During the period of his employment by Bay,
Xxxxx received valuable confidential information, disclosure of which would be
detrimental to the Company, such as information relating to marketing
techniques; promotion and advertising;
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business strategy; business development; pricing; sales; office and personnel
policies and procedures; training programs; product information; operating
procedures; accounting procedures; customer lists; supplier lists; and
staffing. This list of confidential matters is illustrative only, and does not
include all matters considered confidential by the Company.
Xxxxx agrees to hold in strict confidence and not disclose any
of the Company's confidential or proprietary information, including, without
limitation, that information described above.
Xxxxx further agrees not to do anything which may injure the
Company, including but not limited to: (a) intentionally divert or attempt to
divert actual or prospective real estate acquisition, disposition, or
investment opportunities identified by Xxxxx or others employed by Bay during
Xxxxx'x employment to himself, to one or more of his affiliates, to any entity
in which he has an interest, or to a competitor of Bay; (b) intentionally
solicit, cause, induce, or encourage any employee of the Company to leave his
or her employment, or interfere with any employee's employment by the Company;
(c) intentionally induce or attempt to induce any person or entity to breach
any contractual relationship with the Company; (d) intentionally do or perform
any act injurious or prejudicial to the goodwill associated with the Company;
or (e) intentionally cause, encourage, or assist any person, including, but not
limited to, any current employee or former employee of the Company, to do any
of the foregoing.
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Xxxxx acknowledges that his violation of the provisions of
this paragraph 13 will cause the Company irreparable harm, and that the Company
will therefore be entitled to injunctive and/or other equitable relief by
reason of Xxxxx'x violation of this paragraph 13.
Nothing herein shall be construed to limit the rights and
remedies of the Company (including the right to recover damages) if Xxxxx
violates the provisions of this paragraph 13.
Xxxxx acknowledges that this provision is a material part of
this Agreement, and has been bargained for separately. Xxxxx acknowledges
that, due to the importance of this paragraph 13 to the Company, any claim he
has against the Company is a separate matter, and does not entitle him to
violate, or justify any violation of, this paragraph 13.
14. Indemnity. As a further material inducement to Bay
to enter into this Agreement, Xxxxx agrees to defend, indemnify, and hold Bay
(and, as applicable, the Bay Releasees) harmless from and against any and all
loss, costs, damages, or expenses, including, without limitation, attorneys'
fees incurred by Bay and/or the Bay Releasees arising out of (a) Xxxxx'x breach
of this Agreement or (b) the falsity of any representation made herein by
Xxxxx.
15. Dispute Resolution. It is the desire and intention
of the Parties to agree upon a mechanism and procedure under which any
controversy, breach or dispute arising out of this Agreement will be resolved
in a prompt and expeditious manner. Accordingly, any controversy, breach or
dispute arising
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out of this Agreement, or relating to the interpretation of any term or
provision of this Agreement, shall be heard by a referee pursuant to the
provisions of the California Code of Civil Procedure, sections 638 - 645.1,
inclusive. The Parties shall promptly and diligently cooperate with one
another and the referee, and shall perform such acts as may be necessary to
obtain a prompt and expeditious resolution of the dispute or controversy in
accordance with the terms hereof. The Parties agree that the referee shall
have the power to decide all issues of fact and law and report his/her decision
thereon, and to issue all legal and equitable relief appropriate under the
circumstances of the controversy before him/her. Each Party will bear their
own costs incurred in connection with such proceeding.
The Parties shall agree upon a single referee who shall then
try all issues, whether of fact or law, and report a finding and judgment
thereon. If the Parties are unable to agree upon a referee within ten (10)
days of a written request to do so by any Party, then any Party may thereafter
seek to have a referee appointed pursuant to the California Code of Civil
Procedure sections 638 and 640.
16. Complete Agreement. The Parties acknowledge that no
representation, promise or inducement has been made other than as set forth in
this Agreement, and that the Parties do not enter into this Agreement in
reliance upon any representation, promise, or inducement not set forth herein.
Except as expressly provided herein, this Agreement supersedes all prior
negotiations and understandings of any kind with respect to the subject matter
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hereof, including, but not limited to, the Employment Agreement, and contains
all of the terms and provisions of agreement between the Parties hereto with
respect to the subject matter hereof. Any representation, promise or
condition, whether written or oral, not specifically incorporated herein, shall
be of no binding effect upon the Parties.
17. Successors and Assigns. This Agreement shall be
binding on, and inure to the benefit of, the Parties and their respective
predecessors, successors, assigns, transferees, heirs, representatives, and all
other persons or entities succeeding to the rights or obligations of the
Parties, and each of them. Xxxxx may not assign this Agreement or any rights
or obligations hereunder without the prior written consent of Bay. The Parties
acknowledge that this paragraph shall not affect any of Xxxxx'x rights to
transfer or assign his Bay stock.
18. Notice. Any notices, demands, requests, or other
communications to either party required or permitted hereunder shall be in
writing and may be given by personal delivery or by telegraph or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the party at his or its address set forth below.
Either party may change his or its address by written notice in accordance with
this paragraph.
If to Bay:
Xxxxxxx X. Xxxxx
Chairman
Bay Apartment Communities, Inc.
0000 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
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With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxx, Castle & Xxxxxxxxx, LLP
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
If to Xxxxx:
Xxxxxxxx X. Xxxxx
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
19. Severability. The provisions of this Agreement are
severable, and if any part of this Agreement is found to be invalid, void, or
unenforceable, the other provisions shall remain fully valid and enforceable.
20. Counterparts. This Agreement may be executed in
counterparts and when each Party has signed and delivered at least one such
counterpart, each counterpart shall be deemed an original.
21. Capacity. Each Party hereto represents and warrants
that he, she, or it has full power to enter into this Agreement, and that any
individual signing this Agreement on behalf of any such Party is fully
empowered and authorized to act on his or its behalf in respect of this
Agreement.
22. Modifications. This Agreement may not be modified or
terminated orally and no modification, termination or waiver shall be valid
unless the same be in writing and signed by all of the Parties hereto.
23. Waiver. No waiver of any term, provision or
condition of this Agreement, whether by conduct or otherwise, in any one or
more instances, shall be deemed to be, or constitute,
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a waiver of any other term, provision or condition of this Agreement, whether
or not similar, nor shall such waiver constitute a continuing waiver. No such
waiver shall be binding unless executed in writing by the Party making the
waiver.
24. Governing Law. The provisions of this Agreement
shall be governed by, and interpreted in accordance with, the laws of the State
of California.
25. Interpretation. In interpreting this Agreement, the
masculine gender shall be deemed to include feminine and neuter, the singular
shall be deemed to include the plural, and vice versa, and the word "person"
shall be deemed to include both natural persons and any corporation,
partnership, association, joint venture, trust, firm, or other entity.
26. Headings. The use of headings in this Agreement is
only for ease of reference and the headings have no effect and are not to be
considered part or a term of this Agreement.
27. Effect of Agreement. Nothing in this Agreement shall
be construed as releasing any Party of any obligation under this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed, delivered and deemed effective as of the date first
above written.
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PLEASE READ CAREFULLY. THIS SEVERANCE AGREEMENT AND GENERAL
RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. YOU ARE ADVISED TO
CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT.
BAY APARTMENT COMMUNITIES, INC.
a Maryland Corporation
_____________________________ By:_____________________________
Xxxxxxxx X. Xxxxx
Its:_________________________
Date signed:_________________ Date signed:____________________
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