SEPARATION AGREEMENT AND GENERAL RELEASE
THIS AGREEMENT made and entered by and between the undersigned Employee
and Homestead Village Incorporated (together with is 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. Employer and Employee hereby mutually agree that because of a
reorganization of the Finance function, the effective date of Employee's
separation of employment shall be the close of business on JANUARY 8, 1999.
2. Upon execution of this Agreement by Employee, Employer shall be
obligated to Employee as set forth herein. Employer shall pay to Employee the
amount of Four Hundred Thousand Dollars ($400,000) which amount is referred to
herein as the "Separation Amount." The Separation Amount shall be paid
incrementally as follows. AN INITIAL, PAYMENT OF $90,000, SHALL BE PAID TO
EMPLOYEE ON JANUARY 15, 1999. An initial portion of the remaining unpaid balance
of the Separation Amount shall be paid to Employee on an annualized basis
according to Employer's normal payroll cycle for JANUARY, FEBRUARY, MARCH AND
THE FIRST WEEK OF APRIL 1999 (THROUGH PAY PERIOD ENDING ON APRIL 10, 1999),
provided, however, THAT NO PAYMENTS SHALL BE BEFORE THE DATE THIS AGREEMENT
BECOMES BINDING UPON EMPLOYEE IN ACCORDANCE WITH PARAGRAPHS 23 AND 24. THE
FINAL, REMAINING UNPAID BALANCE OF THE SEPARATION AMOUNT, AS OF APRIL 10, 1999,
SHALL BE PAID TO EMPLOYEE IN ONE LUMP SUM CASH PAYMENT ON APRIL 10, 1999. All
payments of the Separation Amount shall be subject to applicable deductions for
state and federal taxes on such amounts.
3. Employee will receive AN ADDITIONAL AMOUNT REPRESENTING ACCRUED AND
UNUSED VACATION THROUGH THE DATE OF EMPLOYEE'S SEPARATION.
4. Employee shall be entitled to maintain his telephone voice mailbox
until February 1, 1999.
5. Employee's continuous service under the Employer's 401(k) plan
shall cease as of the date of resignation, as set forth in Paragraph 1 herein.
Within four (4) to six (6) weeks of Employee's written request and pursuant to
the terms of the plan, Employee shall be entitled to a distribution of all of
the contributions to the Employee's 401(k) account made by the Employee, plus
earnings thereon, or a transfer of such amount to another plan at Employee's
request. All distributions will be net of applicable withholding taxes, if any.
Any options granted Employee under Employer's stock option plan or under any
Security Capital Group Stock Option Plan shall expire on the third month
anniversary of the date of separation, as set forth in Paragraph 1 herein.
6. The Employer shall extend to Employee the right to continue health
insurance at Employee's own expense as may be required by and pursuant to the
terms and conditions of the Consolidated Omnibus Budget Reconciliation Act of
1986.
7. Employer shall provide Employee WITH OUTPLACEMENT SERVICES OF RIGHT
ASSOCIATES provided that such services shall not extend beyond July 30, 1999.
8. 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,
Employee and Employer hereby release and forever discharge the other (including,
in the case of the Employer, its related and affiliated entities, and each of
their officers, directors, shareholders, representatives, agents, employees and
insurers (Employee, Employer and said related parties are hereinafter
collectively and individually "said Releases") 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
effective 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, and the Americans with Disabilities Act. Notwithstanding the forgoing,
no such release shall be applicable to any existing indemnity agreements
including those under the indemnification agreement entered into between the
Employer and Employee or any insurance rights including directors and officers
policies in favor of Employee.
B. Upon written request of the Employer, Employee shall
promptly provide the Employer with a written report and verbal briefings
concerning all current business activities engaged in by Employee on behalf of
the Employer, which obligation shall expire 90 days after the date of this
Agreement.
C. Employee shall cooperate reasonably with the Employer in
the transition of Employee's responsibilities to other employees of the Employer
including, without limitation, responding within a week by telephone to answer
questions and to assist other employees or designees of the Employer, during the
term of severance payments.
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.
E. The Employee further covenants and acknowledges that
neither the Employee, nor any person, organization or other entity acting on the
Employee's behalf has or will xxx or cause or permit suit against the Employer
upon any claim released herein or to participate in any way in any suit or
proceeding or to execute, seek to impose, collect or recover upon or otherwise
enforce or accept any judgment, decision, award, warranty or attachment upon any
claim released herein.
F. It is understood and agreed that this Agreement is executed
by the Employee knowingly and voluntarily and is not based upon any
representations or statements of any kind by any person as to the merits, legal
liabilities or value of the Employee's claim.
G. The Employee also acknowledges that no promise or
inducement has been offered or made except as herein set forth. The Employee
further acknowledges that consideration for this Agreement consists of financial
payments and benefits to which the Employee otherwise has no legal entitlement.
9. Confidential and Proprietary Information
A. Employee acknowledges and agrees that in the course of
employment with the Company, Employee had access to certain confidential and
proprietary information owned by and related to the Employer (hereinafter such
information is referred to as "Confidential Information") including, but not
limited to Confidential Information relating to:
(ii) the past and present clientele and customers of the Employer
as well as the persons, firms and corporation who are active
prospective clients for services;
(ii) suppliers from which the Employer obtains products for their
clientele and customers;
(iii) the types of services provided and the
internal corporate policies related thereto;
(iv) the individual services purchased by or for the clientele
and customers of the Employer.
(v) individual client's and customer's specifications or
characteristics;
(vi) Confidential Information, including names, addresses and
telephone numbers of clients, customers and suppliers of the
Employer; and
(viii) information relating to the Employer's inventions or
products, research and development, production processes,
manufacturing and engineering processes, machines and
equipment, finances, employees, marketing, and production
and future business plans.
B. Employee agrees and covenants that following Employee's
termination, Employee will not for one (1) year following the date of this
Agreement disseminate, disclose, communicate, publish or otherwise divulge,
directly or indirectly, any Confidential Information of the Company. All duties
and obligations set forth herein shall be in addition to those which exist at
common law and pursuant to statute.
10. Employee hereby agrees to immediately turn over to Employer all
Confidential Information, 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 Employees' 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.
11. Employee further agrees that upon the written request of the
Company Employee shall cooperate fully with Company and its counsel with respect
to any matter (including but not limited to litigation, investigation, or
governmental proceeding) which relates to matters with which Employee was
involved during the term of his employment with the Company. Company shall
reimburse Employee for Employee's time so expended at reasonably agreed rates
and reasonable and verified out-of-pocket costs and expenses incurred, but only
to the extent expended or incurred pursuant to such request of the Company and
subject to any conditions or requirements imposed by the Company. Such
cooperation shall include attendance at conferences and interviews and in
general providing Company and its counsel with the full benefit of the
Employee's knowledge about those matters. Employee agrees to so cooperate
promptly and at times reasonably agreeable to the Company. Employee shall
provide these services as an independent contractor and not as an employee of
the Company.
12. Except as may be required to the contrary by a 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 shall not,
directly or indirectly, discuss or communicate the facts of this Agreement, or
any of its terms and provisions with any third party.
13. Employer agrees not to contest Employee's claim for unemployment
benefits.
14. 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 material interests of Employer or any affiliate
of Employer, nor will Employee disparage or make negative, derogatory or
defamatory statements about Employer, its related and affiliated entities, its
directors, officers, employees, shareholders, agents or representative, or any
of them, to any other person or business entity, except as may be required by
process or court order. Employer shall not voluntarily make any negative,
derogatory or defamatory statements about Employee, except as may be required by
process or court order.
15. Nothing in this Agreement shall be deemed an admission of
wrongdoing or any kind of liability by either party.
16. 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 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.
17. This Agreement shall be binding upon and inure to the benefit of
both parties, their successor and assigns, and any affiliated or related entity,
as well as Employee's heirs, assigns, administrators, executors and legal
representatives.
18. This instrument constitutes the entire Agreement between the
parties, and may not be modified or amended in any way except by a subsequent,
written agreement between the parties.
19. 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.
20. This Agreement shall be construed in accordance with the laws
of the State of Georgia.
21. 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.
22. This Agreement may be signed in multiple counterparts, each
of which shall be deemed to be an original for all purposes.
23. Employee may revoke this Agreement within seven days of Employee's
executing this Agreement with his signature.
24. EMPLOYEE AFFIRMS THAT EMPLOYEE HAS BEEN GIVEN A REASONABLE PERIOD
OF 21 DAYS WITHIN WHICH TO CONSIDER WHETHER TO EXECUTE 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 EMPLOYER ARISING OUT OF EMPLOYEE'S EMPLOYMENT BY EMPLOYER OR ITS
TERMINATION. EMPLOYEE ALSO 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 EMPLOYER'S POLICIES.
IN WITNESS THEREOF, the parties have executed this Agreement on the
date(s) set forth below.
HOMESTEAD VILLAGE INCORPORATED
By
Title
Date
Employee
Employee
(Signature)
Date
State of Georgia
County of )
On ____________________, 19 _____, ____________________ personally appeared
before me,
_____ who is personally known to me
_____ whose identity I proved on the basis of ____________________
_____ whose identity I proved on the oath/affirmation of
____________________, a credible witness
to be the signer of the above instrument, and he/she acknowledged that he/she
signed it.
Notary Public
My Commission expires
State of )
) ss
County of )
On ____________________, 19 _____, ____________________ personally appeared
before me,
_____ who is personally known to me
_____ whose identity I proved on the basis of ____________________
_____ whose identity I proved on the oath/affirmation of
____________________, a credible witness
to be the signer of the above instrument, and he/she acknowledged that he/she
signed it.
Notary Public
My Commission expires
