EXHIBIT 10.50
XXXXXXX PACIFIC
August 28, 2000
Xx. Xxxxx X. Xxxxx
00000 Xxxxx Xxxx Xxxx
Xxxx Xxxxxx, XX 00000
RE: SEPARATION AGREEMENT
Dear Xxx:
This document, upon your signature, will constitute the agreement
between you, Xxxxx X. Xxxxx ("Gaube") and Xxxxxxx Pacific Operating Partnership,
L.P., BPP Services, Inc. and Xxxxxxx Pacific Properties, Inc. (collective, the
"Company"), on the terms of your separation from employment with the Company. It
is understood that both parties want to preclude any dispute between them
arising from your employment, your separation or any other matter with the
Company.
1. It is understood and agreed that:
a. September 30, 2000 will be your last day of employment with
the Company (the "Effective Termination Date"). You will be
paid all unused accrued vacation as of September 30, 2000.
b. You will be compensated at your current salary and continue to
receive all of your current benefits (including, medical
insurance, dental insurance, 401(k) and other current
benefits) through the Effective Termination Date. COBRA and
insurance conversion information are attached to this letter.
If you are a participant in our 401(k) Plan, Xxxxx Fargo Bank
our Plan Administrator, will provide you under separate cover
the distribution options regarding your personal account.
c. As of the Effective Termination Date, you will cease to have
any signing authority on behalf of the Company or its
subsidiaries. In addition, you shall no longer carry the title
of Executive Vice President or Chief Investment Officer.
d. Effective October 1, 2000, you will have no further rights
under that certain Senior Executive Severance Agreement dated
as of June 30, 1999, as amended
(the "Severance Agreement"), and such Severance Agreement
shall be deemed terminated as of August 19, 2000.
e. Effective October 1, 2000, you will have no further rights
under that certain Phantom Shares Agreement dated as of August
1, 1999, as amended (the "Phantom Agreement"), and such
Phantom Agreement shall be deemed terminated as of October 1,
2000.
f. Effective October 1, 2000, you will have no further rights as
a member or otherwise under that certain Limited Liability
Company Agreement of Xxxxxxx Pacific Employees LLC, dated as
of June 1, 1999, as amended (the "LLC Agreement"), and,
pursuant to Section 7.02 of such LLC Agreement, the Units held
by you shall automatically cease to be issued and outstanding
as of June 1, 2000.
g. Effective October 1, 2000, you will cooperate with Xxxxx X.
Xxxxxx to accommodate the transfer of your share in BPP
Services, Inc. to Xx. Xxxxxx pursuant to the terms of the
applicable documents of BPP Services, Inc. In consideration
for the terms of this Separation Agreement, the transfer price
for all of such shares pursuant to Section 11.03 of the
applicable documents shall be stipulated to be $100.00.
2. In order to assist you in making this transition, and in consideration
of your acceptance of this Separation Agreement by your signing and
returning this Agreement within the stated time period, and
relinquishing your rights under the agreements recited in Paragraph 1
above, the Company will provide the following:
a. Commencing on the Effective Termination Date and continuing
until September 30, 2001, the Company will pay your monthly
COBRA premium.
b. At the Company's election, the Company will issue a press
release subject to approval by both parties.
c. Except to the extent arising out of Gaube's gross negligence
or intentional misconduct, the Company shall indemnify, defend
and hold Gaube harmless from any and all loss, cost, damage or
expense arising out of, or related to the ownership,
management or development of any of the Company's properties.
d. Following the full execution of this Separation Agreement, the
parties shall each fully cooperate with the other to answer
questions, participate in meetings, provide testimony and
provide information relating to activities of Gaube or the
Company during the term of Gaube's employment at no expense to
Gaube.
e. As a severance payment, the Company shall pay to you, in the
manner described below, the sum of Two Hundred Fifty Thousand
Dollars ($250,000), less deductions authorized and required by
law (the "Severance Payment"). The Severance Payment shall be
paid in 24 equal installments, commencing on October 1, 2000
and on the fifteenth day and last day of the month thereafter
until
and including September 30, 2001 (the "Severance Period");
provided, however, that within 30 days after the occurrence of
a Change in Control (as defined in the Severance Agreement),
the full amount of any unpaid portion of the Severance Payment
shall be paid to Gaube, the Severance Period shall end, and
the Company shall have no further obligation to pay the
Severance Payment to Gaube.
f. In addition, the Company will assign its interest in office
space located at 00000 XX Xxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxx (the "Assignment Premises") to a new entity
that is to be formed by Gaube, effective upon consent of the
lessor. Any such assignment shall be subject to landlord
entering into a Modification Agreement with the new entity
that modifies certain terms and conditions of the office
lease. If the lessor consents to the assignment and the lease
is modified as referenced above, the new entity will assume
the Company's obligations as to the Assignment Premises. The
Company further agrees to sell the furniture, fixtures and
equipment in the Assignment Premises to the new entity for
their fair market value pursuant to a liquidator's appraisal
on or before October 1, 2000. The Company will cooperate with
Gaube in the transition period regarding the use of the
Assignment Premises, furniture, fixture and equipment.
g. The Company has acknowledged that Gaube upon terminating
employment with the Company will be hiring certain Company
employees. Gaube's assumption of the CalPERS relationship
requires that the new Gaube entity possibly requires the
continued use of office space at the Company's current
locations in both San Diego and San Francisco for the Company
employees to be hired. To aid in preventing any disruption in
the management of CalPERS assets, the Company agrees to permit
the new Gaube entity that eight to continue to use office
space at both locations for a period of time not to exceed
December 31, 2000.* The employees at the Gaube entity shall
have reasonable use of conference rooms, lunchrooms, restrooms
and other common areas just as if they continued as employees
of the Company. The Gaube entity is agreeable to the
reasonable relocation of the employees' office/workstation
locations within the leased premises a an accommodation to the
Company to assist with any logistic issues.
The Company additionally agrees that the employees of the
Gaube entity shall have continued use of all systems and
information necessary for the continued operation of the
CalPERS assets up to December 31, 2000.
The Company agrees to reasonably work with the Gaube entity in
the transition of the CalPERS assets from the Company to the
Gaube entity.
The Company further agrees to sell to the Gaube entity
furniture, fixtures and equipment from the San Diego and San
Francisco offices, that the Company no
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* (or such shorter time if the San Francisco office lease is terminated).
longer has a need, at the fair market value pursuant to a
liquidator's appraisal, on or before December 31, 2000.
As consideration for the above, the Gaube entity agrees to pay
to the Company rent based upon the space in which the new
Gaube entity occupies. Such rental rate shall be reasonably
negotiated between the Company an the Gaube entity and shall
be based upon the current rent paid by the Company.
3. The parties agree not to disclose the terms of this Separation
Agreement, the benefits being paid under it o the facts of these
payments, except that the parties may disclose this information to
those individuals that have a need to know in order for them to render
professional or financial services or as may be required by law, rule
or regulation.
4. Except as set fort in Section 2(g), you also agree to preserve as
confidential and not use or disclose any of the Company's trade
secrets, confidential knowledge, data or other proprietary information
relation to technology, customers, products, business plans, financial
or organizational information or other subject matter pertaining to any
business of the Company or any of its clients, customers, or licensees
from this day forward.
5. You agree to unconditionally and forever release and discharge the
Company and all of its subsidiaries, officers, directors, and
employees, and each of them, of an from any and all debts, claims,
liabilities, demands and cause of action of every kind, nature and
description, including but not limited to any claim under federal,
state or local law, including the Age Discrimination in Employment Act,
the Family Medical Leave Act and any other laws pertaining to
employment or employment discrimination which you have or may have or
could assert against the Company as of the date of the Agreement. In
addition, the Company unconditionally and forever releases, and
discharges you of and from any and all debts, claims, liabilities,
demands and cause of action of every kind, nature and description,
which the Company has or may have or could assert against you as of the
date of the Agreement, except to the extent arising out of your gross
negligence or intentional misconduct. Notwithstanding the above, the
Company shall continue to provide to Gaube the indemnity protections
provided to Gaube in the Indemnity Agreement previously executed by the
parties. (Attached hereto as Exhibit "A")
6. It is further understood and agreed that as part of the consideration
and inducement for the execution of this Agreement, you and the Company
specifically waive the provisions of Section 1542 of the California
Civil Code, and any equivalent law of any state, which reads as
follows:
"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."
7. You represent that no promise, inducement or other agreement not
expressly contained or referenced in this Separation Agreement has been
made conferring any benefit upon you; that this Separation Agreement
and the Indemnity Agreement contain the entire agreement between us
with respect to any benefit conferred upon you; and that all prior
agreements; understandings, oral agreements and writings are expressly
superseded by this Separation Agreement and are of no further force and
effect.
8. This Separation Agreement is entered into governed by the laws of the
State of California.
9. You will have until 9:00 A.M. on September 15, 2000, to accept the
terms of this Separation Agreement. Should you have any questions
regarding the release terms and conditions contained in this Agreement,
you are advised to consult with your own personal legal/tax advisor.
10. To accept this Agreement, please date and return it to Xxxxx X. Xxxxxxx
in the enclosed confidential envelope.
Very truly yours,
/s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
Vice President
By signing this letter, I acknowledge that I have had an opportunity to review
this Separation Agreement carefully, consult with advisors of my choice, that I
understanding the terms of the Separation Agreement, and I voluntarily agree to
them.
/s/ X. X. XXXXX 9/8/00
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Xxxxx X. Xxxxx Date
