Exhibit 10.17
SEPARATION AGREEMENT AND GENERAL RELEASE
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THIS AGREEMENT made and entered by and between Xxx X. Xxxxxxxx ("Employee")
the undersigned Employee and Archstone Communities Trust (together with its
affiliates and their trustees, directors, officers, shareholders and other
affiliates, collectively referred to hereinafter as "Employer").
WHEREAS, Employee has been employed by the Employer; and
WHEREAS, the parties have engaged in discussions resulting in an amicable
and mutually satisfactory separation of Employee's employment with the Employer.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth
below, the parties hereby agree as follows:
1. Employee hereby resigns Employee's employment with Employer effective
February 22, 2000, the date of separation.
2. Upon this Agreement becoming effective as set forth in paragraph 19,
Employer and Employee shall be obligated as set forth herein: a)
Employer shall pay Employee severance in a lump sum amount of
$424,480.00 (one year's salary and target bonus, plus accrued bonus
from January 1, 2000 - February 25, 2000), minus applicable deductions
and withholding for state and federal taxes and any health insurance
premiums incurred at Employee's election, on such amount. Employee
agrees not to accept a full-time position with a publicly traded REIT
or national apartment developer for six months after last date of
employment, however, if Employee obtains full-time employment with any
related or affiliated entity of Archstone Communities,
including Security Capital Group affiliates, or a competitor of
Archstone Communities, including any publicly traded REIT or national
apartment developer prior to six months after the separation date,
Employee will reimburse Employer for six months of salary and target
bonus, minus applicable deductions and withholdings. Employee agrees
that he will notify Archstone, c/o Xx. Xxxxxx Xxxxxx, 0000 X. Xxxxxxx,
Xxxxx 000, Xxxxxxxxx, XX 00000 within five (5) days of accepting any
full-time employment. b) Employer shall provide Employee with
outplacement services for six months. c) Concurrently with the
execution of the Agreement, Employee shall repay the loan from
Employer, in the principal amount of $950,000.00 used to purchase
45,325 shares of Employer stock (the "Shares"), which repayment shall
be effected through the tender of the 45,325 shares of Employer stock
purchased with such loan, which the parties agree shall have an
aggregate value of $950,000.00. Employee waives the right to the
vested and unvested matching two-for-one shares in the Share Purchase
Program. Employee also received a loan from the Employer in the amount
of $50,000 plus interest in order to assist with the purchase of the
shares. Employee has paid $26,361.00 to date. At the time this
Agreement becomes binding on Employee in accordance with Paragraph 19,
Employer shall pay Employee $26,361.00 which represents the payments
on the loan made by Employee to purchase the shares of Employer stock,
and will forgive and release Employee from all remaining debt on the
loan. d) Employee shall be entitled
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to retain ownership of his lap top computer, a Portege 3010CT. e)
Employee will be entitled to all vested Options, Restricted Share
Units, and Dividend Equivalent Units, in accordance with the terms of
the 1997 Long Term Incentive Plan.
3. In the Employee's regular paycheck, due March 10, 2000, the Employer
shall pay to Employee, all accrued and unpaid salary and vacation as
of February 25, 2000, less the applicable deductions.
4. Employee is entitled to continue Employer's group health and dental
insurance coverage as provided by the Consolidated Omnibus Budget and
Reconciliation Act (COBRA). Employer will pay for the COBRA expense
until the earlier of the date Employee becomes eligible, as a full-
time employee of a new employer, for coverage under a comparable group
health and dental insurance plan, or twelve months from the date of
separation. Information regarding COBRA enrollment forms and payment
requirements will be forwarded to Employee by Employer's human
resources department.
5. In consideration of the promises contained in this Agreement, the
Employee and Employer hereby mutually agree to do the following:
a. Except for a claim based upon a breach of this Agreement, the
Employee and Employer hereby release and forever discharge the
other (including, in the case of the Employer, its related and
affiliated entities, including employee benefit plans and
fiduciaries of employee benefit plans, and each of their
trustees, officers, directors,
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representatives, agents, employees and insurers) (Employee,
Employer and said related parties are hereinafter collectively
and individually "said Releasee(s)") from any and all rights,
claims, demands, debts, dues, sums of money, accounts, attorneys'
fees, complaints, judgements, executions, actions and causes of
action of any nature whatsoever, cognizable at law or equity,
which Employee and Employer have or claim, or might hereafter
have or claim, against said Releasee(s) based upon or arising out
of any matter or thing whatsoever, from the beginning of the
world through the date of this Agreement, including but not
limited to any rights, claims, complaints or actions or causes of
action which were or could have been asserted by Employee or
Employer arising out of or related to Employee's employment by
the Employer or Employee's separation and/or resignation
therefrom, the purchase (or sale to Employer) of any Employer
securities by Employee, or under any local state, or federal law
dealing with employment discrimination including, without
limitation, Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act and the Americans with
Disabilities Act.
b. Upon request of the Employer, Employee shall promptly provide the
Employer with a written report and verbal briefings concerning
all
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current business activities engaged in by Employee on behalf of
the Employer.
c. Employee shall cooperate reasonably with the Employer in the
transition of Employee's responsibilities to other employees of
the Employer including, without limitation, being available by
telephone during normal business hours to answer questions and to
assist other employees or designees of the Employer.
d. Employee shall promptly submit to the Employer an expense account
report accounting for all business expenses charged by Employee
to the Employer and all advances received, and repay the Employer
for all advances and all non-business related items charged by
Employee to the Employer, if any. Employee hereby agrees that
such advances and non-business related expenses may, at the
option of the Employer, be deducted by the Employer from any of
its payments to Employee under this Agreement.
6. In addition to the confidentiality and nonsolicitation covenants
contained in that certain Confidentiality and Non-Competition
Agreement dated as of September 7, 1997, by and between Employee and
Employer, Employee agrees that, for a period of one (1) year from the
of separation, Employee shall maintain in confidence and shall not,
directly or indirectly, use, publish or otherwise disclose to any
competitor or other third party any trade secrets
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disclosed to the Employee in confidence. For purposes of this
paragraph, trade secret means information that derives independent
economic value from not being generally known to the public or to
other persons who can obtain economic value from its disclosure or use
and is subject to efforts that are reasonable under the circumstances
to maintain its secrecy. All duties and obligations set forth herein
shall be in addition to those which exist at common law and pursuant
to statute. In addition, Employee agrees not to recruit or hire any
current Employer associates for a period of one (1) year.
7. Employee hereby agrees to immediately turn over to the Employer all
notes, offering materials, slide shows, investment summaries,
memoranda, records, documents and all other information, no matter how
produced or reproduced, kept by Employee or in Employee's possession
or control, used in or pertaining to the business of the Employer, it
being hereby acknowledged that all of said items are the sole and
exclusive property of the Employer.
8. Except as may be required to the contrary by the final order issued by
a court of competent jurisdiction and except for any communication
with members of Employee's immediate family and any attorney or
accountant rendering advice to Employee in connection with this
Agreement, Employee and Employer shall not, directly or indirectly,
discuss or communicate the facts of this Agreement, or any of its
terms and provisions with any third party.
9. The Employer agrees not to contest the Employee's claim for
unemployment
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benefits.
10. From and after the date of presentment of this Agreement, Employee
shall not, directly or indirectly, take any action which is in fact,
or is intended to be, contrary to the interests of the Employer, nor
will Employee disparage or make negative, derogatory or defamatory
statements about the Employer, its related and affiliated entities and
their trustees, directors, officers, employees, agents or
representatives, or any of them, to any other person or business
entity. Employer shall not make any negative, derogatory or
defamatory statements about Employee. All requests for references for
Employee shall be referred to R. Xxxx Xxxxxxx. Xx. Xxxxxxx will make
a general statement to the effect that it is not the practice of
Employer to provide references regarding prior performance of
employees, but that Employer will, if requested, provide information
regarding the dates of employment, rate of pay and last title held.
11. Nothing in this Agreement shall be deemed an admission of wrongdoing
or any kind of liability by either party.
12. In the event Employee engages in a material breach of any of the terms
or provisions of this Agreement, all of Employee's obligations shall
remain and shall be enforceable, but the Employer's obligations under
this Agreement shall immediately terminate, including, without
limitation, all remaining monetary obligations of the Employer to
Employee which are outstanding at
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the time of said breach. Similarly, Employee shall be relieved of any
further obligation under this Agreement if Employer materially
breaches its covenants in this Agreement.
13. This Agreement shall be binding upon and inure to the benefit of both
parties, their successors and assigns, and any affiliated or related
entity, as well as Employee's heirs, assigns, administrators,
executors and legal representatives.
14. This instrument constitutes the entire agreement between the parties
with respect to the matters addressed herein, and may not be modified
or amended in any way except by a subsequent, written agreement
between the parties.
15. If any provision, section, subsection or other portion of this
Agreement shall be determined by any court of competent jurisdiction
to be invalid, illegal or unenforceable in whole or in part, and such
determination shall become final, such provision or portion shall be
deemed to be severed or limited, but only to the extent required to
render the remaining provisions and portions of this Agreement
enforceable. This Agreement as thus amended shall be enforced so as
to give effect to the intention of the parties insofar as this is
possible. In addition, the parties hereby expressly empower a court of
competent jurisdiction to modify any term or provision of this
Agreement to the extent necessary to comply with existing law and to
enforce this Agreement as modified.
16. This Agreement shall be construed in accordance with the laws of the
State of
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Colorado.
17. The language used in this Agreement shall be deemed to be the language
chosen by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against any person.
18. This Agreement may be signed in multiple counterparts, each of which
shall be deemed to be an original for all purposes.
19. Employee may revoke this Agreement within seven days of Employee's
signing it. Revocation should be delivered to Employer's offices at
0000 X. Xxxxxxx, Xxxxx 000, Xxxxxxxxx, XX, attention Xxxxxx Xxxxxx,
Vice President Human Resources. For such revocation to be effective,
the notice and the cashier's check must be received no later than 5:00
p.m. on the seventh calendar day after Employee signs this Agreement.
If Employee does not revoke this Agreement within seven days, this
Agreement shall be effective on the next calendar day.
20. Employee affirms that Employee has been given a period of at least
twenty one days within which to consider this Agreement, and that
Employee has carefully read and reviewed all the terms and conditions
contained in this Agreement and fully understands this Agreement to be
a release of all claims, known or unknown, present or future, that
Employee has or may have against the Employer arising out of
Employee's employment by Employer or its termination. Employee also
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affirms that Employee has been advised to consult with an attorney
prior to executing this Agreement and that Employee has, in fact, been
given full opportunity to review this Agreement with counsel, and that
Employee signs it voluntarily of his own volition, without duress or
coercion. Employee represents that Employee is signing this Agreement
because of the compensation to be paid by Employer under this
Agreement which exceeds separation compensation generally available
under the Employer's policies.
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IN WITNESS THEREOF, the parties have executed this Agreement on the date(s)
set forth below.
Archstone Communities
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Date: March 3, 2000
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Employee: Xxx Xxxxxxxx
/s/ Xxx X. Xxxxxxxx
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(Signature)
Date: March 3, 2000
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State of Texas )
)
County of Xxxxxx )
The above and foregoing was acknowledged before me this third day of March,
2000, by Xxx Xxxxxxxx.
/s/ Xxxxxx Xxxxxxxx
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Notary Public
My Commission expires April 22, 2003.
County of Xxxxxx )
)
State of Texas )
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