SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
Exhibit 10.1
SEPARATION AGREEMENT AND
GENERAL RELEASE OF ALL CLAIMS
GENERAL RELEASE OF ALL CLAIMS
This Separation Agreement and General Release of all Claims (“Agreement”) is made by and
between Xxxxxx X. Xxxxxx (“Employee”) and Xxxxx & Xxxxx Company (the “Parent Company”), including
all of Parent Company’s current and former parents, subsidiaries, affiliates and related entities
(all current and former parents, subsidiaries, affiliates and related entities, along with the
Parent Company, are collectively referred to as “Xxxxx & Xxxxx”).
1. Separation From Employment. Employee’s employment as Executive Vice President,
General Counsel and Corporate Secretary of the Parent Company terminated October 22, 2010 (the
“Termination Date”), and as of the Termination Date, Employee also resigns as an officer and
director of all Related Entities; provided however that Employee does not resign her directorship
with Xxxxx & Xxxxx Apartment REIT, Inc. Employee acknowledges that, as of the date Employee signs
this Agreement, Employee has received Employee’s closing paycheck, including payment for all
accrued and unused Paid Time Off (PTO), if any. Employee agrees to assist in the transition of her
duties to other employees, and to cooperate with Xxxxx & Xxxxx to make the transition as seamless
as possible. Employee agrees to make herself reasonably available to Xxxxx & Xxxxx’x officers and
directors as needed to provide information and limited assistance as needed with respect to her
knowledge and understanding of Xxxxx & Xxxxx’x current and historical legal operations.
2. Resolution of Disputes. Xxxxx & Xxxxx and Employee (collectively, the “Parties”)
have entered into this Agreement as a way of severing the employment relationship between them and
amicably settling any potential disputes (the “Disputes”) concerning Employee’s employment with
Xxxxx & Xxxxx or termination from Xxxxx & Xxxxx. The Parties desire to resolve the above
referenced Disputes and all issues raised by the Disputes, without the further expenditure of time
or the expense of contested litigation. Additionally, the Parties desire to resolve any known or
unknown claims as more fully set forth below. For these reasons, they have entered into this
Agreement.
3. Termination of Employment Benefits. Employee represents, understands and agrees
that Employee’s active employment with Xxxxx & Xxxxx ended on the Termination Date as specified
above, that Employee will not otherwise demand further employment with Xxxxx & Xxxxx, and that
Employee will no longer be covered by or eligible for any benefits under any Xxxxx & Xxxxx employee
benefit plan in which employee currently participates, except as otherwise noted herein.
Employee’s health benefits coverage will continue through the month of October 31, 2010 and will
terminate as of November 1, 2010. Employee will receive by separate cover information regarding
Employee’s rights to health insurance continuation under COBRA and any Xxxxx & Xxxxx 401(k) Plan
benefits. As of the Termination Date, Employee shall not be entitled to any of the rights and
privileges established for Xxxxx & Xxxxx’x employees except as otherwise provided in this
Agreement.
4. Payments and Benefits. In return for Employee’s execution of and compliance with
this Agreement, including the releases that form a material part of this Agreement, Xxxxx & Xxxxx
shall provide Employee with certain separation benefits (see below) to which Employee would
not otherwise be entitled:
x. Xxxxx & Xxxxx shall pay Employee a gross amount of Four Hundred Thousand Dollars and No
Cents ($400,000.00), which payment shall be made in eight (8) bi-weekly installments of Fifty
Thousand Dollars and No Cents ($50,000.00), subject to deductions for state and federal withholding
tax, social security and other employee taxes and payroll deductions. Provided this Agreement
becomes effective (as defined in Paragraph 14), the first installment payment under this Paragraph
4(a) shall be made on November 26, 2010. After Xxxxx & Xxxxx has completed processing its payroll
for calendar year 2010 and calendar year 2011, Xxxxx & Xxxxx will issue to Employee an IRS Form W-2
which will include the payments for each respective year.
b. Provided that Employee and her eligible dependents, if any, are participating in Xxxxx &
Xxxxx’x group health, dental and vision plans on Employee’s date of termination and elects on a
timely basis to continue that participation in some or all of the offered plans through the federal
law commonly known as “COBRA,” Xxxxx & Xxxxx will pay the premium cost of that participation.
Employee shall continue to be eligible for the payment of premiums for COBRA coverage until the
earlier to occur of (i) eighteen (18) months after the date of her termination, (ii) the date she
is eligible to enroll in the health, dental and/or vision plans of another employer, or (iii) if
Xxxxx & Xxxxx in good faith determines that payments under this Paragraph 4(b) would result in a
discriminatory health plan pursuant to the Patient Protection and Affordable Care Act of 2010, as
amended; provided, however, that Employee’s participation is dependent on her and her dependents,
if any, continuing to be eligible to participate in Xxxxx & Xxxxx’x offered plans through COBRA.
Employee agrees to notify Xxxxx & Xxxxx promptly if she becomes eligible to enroll in the plans of
another employer or if she or any of her dependents cease to be eligible to continue participation
in Xxxxx & Xxxxx’x plans through COBRA.
x. Xxxxx & Xxxxx makes no representations regarding the taxability or legal effect of the
payments and benefits described in this Paragraph 4(c), and Employee is not relying on any
statement or representation of Xxxxx & Xxxxx in this regard. Employee will be solely responsible
for the payment of any taxes and penalties assessed on the payments and benefits and will defend,
indemnify and hold Xxxxx & Xxxxx free and harmless from and against any claims relating to the
taxability, if any, of the payment.
5. Section 409A Exemption. The payments made under this Agreement are intended to
fall within the short-term deferral exemption under Section 409A of the Internal Revenue Code of
1986, as amended.
6. Releases. In consideration of and in return for the promises and covenants
undertaken in this Agreement, and for other good and valuable consideration, receipt of which is
hereby acknowledged, except as noted within this Paragraph 6, Employee does hereby acknowledge full
and complete satisfaction of and does hereby release, absolve and discharge Xxxxx & Xxxxx and each
of Xxxxx & Xxxxx’x predecessors, parents, subsidiaries, affiliates, associates, owners, divisions,
related companies and business concerns, past and present, and each of them, as well as each of
their partners, trustees, directors, officers, shareholders, agents, attorneys, servants and
employees, past and present, and each of them (collectively referred to as “Releasees”) from any
and all claims,
demands, liens, agreements, contracts, covenants, actions, suits, causes of action,
grievances, wages, vacation or PTO payments, severance payments, obligations, commissions, overtime
payments, debts, profit sharing claims, expenses, damages, judgments, orders and liabilities of
whatever kind or nature in state or federal law, equity or otherwise, whether known or unknown to
Employee (collectively, the “Claims”), which Employee now owns or holds or has at any time owned or
held as against Releasees, or any of them, including specifically but not exclusively and without
limiting the generality of the foregoing, any and all Claims known or unknown, suspected or
unsuspected: (1) arising out of Employee’s employment with Xxxxx & Xxxxx or termination of that
employment; or (2) arising out of or in any way connected with any claim, loss, damage or injury
whatsoever, known or unknown, suspected or unsuspected, resulting from any act or omission by or on
the part of Releasees, or any of them, committed or omitted on or before the date this Agreement is
executed by Employee. Also, without limiting the generality of the foregoing, Employee
specifically releases Releasees from any claim for attorneys’ fees. EMPLOYEE ALSO SPECIFICALLY
AGREES AND ACKNOWLEDGES EMPLOYEE IS WAIVING ANY RIGHT TO RECOVERY BASED ON STATE OR FEDERAL AGE,
SEX, PREGNANCY, RACE, COLOR, NATIONAL ORIGIN, MARITAL STATUS, RELIGION, VETERAN STATUS, DISABILITY,
SEXUAL ORIENTATION, MEDICAL CONDITION OR OTHER ANTI-DISCRIMINATION LAWS, INCLUDING, WITHOUT
LIMITATION, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AGE DISCRIMINATION IN EMPLOYMENT ACT,
THE EQUAL PAY ACT, THE AMERICANS WITH DISABILITIES ACT, THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT, THE WORKER ADJUSTMENT RETRAINING AND NOTIFICATION ACT, THE CALIFORNIA FAIR EMPLOYMENT AND
HOUSING ACT, THE CALIFORNIA FAMILY RIGHTS ACT, THE CALIFORNIA LABOR CODE, AND ALL OTHER STATE LAWS,
ALL AS AMENDED, WHETHER SUCH CLAIM BE BASED UPON AN ACTION FILED BY EMPLOYEE OR BY A GOVERNMENTAL
AGENCY. Employee acknowledges and agrees that Employee has been properly paid for all hours
worked, that Employee has not suffered any on-the job injury for which Employee has not already
filed a claim, that Employee has been properly provided any leave of absence because of Employee’s,
or a family member’s, serious health condition, and that Employee has not been subjected to any
improper treatment, conduct or actions due to or related to Employee’s request, if any, or
Employee’s taking of, any leave of absence because of Employee’s own, or a family member’s serious
health condition.
This Release does not apply to any claim that, as a matter of law cannot be released, including but
not limited to claims for indemnification pursuant to Labor Code section 2802, unemployment
insurance benefits, and workers’ compensation claims. This Release also does not preclude Employee
from filing suit to challenge Xxxxx & Xxxxx’x compliance with the waiver requirements of the Age
Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act. This
Release also does not waive any rights Employee may have pursuant to that certain Membership
Interest Assignment Agreement by and between Employee and certain Xxxxx & Xxxxx entities dated as
of October 22, 2010, relating to membership interest in Xxxxx & Xxxxx Apartment Management, LLC.
This Agreement does not include rights or claims that may arise after the date Employee executes
this Agreement.
Except as described within this Paragraph 6, Employee agrees and covenants not to file any suit,
charge, or complaint against Releasees in any court or administrative agency, with regard to any
claim, demand, liability or obligation arising out of Employee’s employment with Xxxxx & Xxxxx, or
separation there from. Employee further represents that no claims, complaints, charges, or other
proceedings are pending in any court, administrative agency, commission or other forum relating
directly or indirectly to your employment with, or separation from, Xxxxx & Xxxxx. Nothing in this
Agreement shall be construed to prohibit Employee from filing a charge with the Equal Employment
Opportunity Commission (“Commission”) and/or National Labor Relations Board (“NLRB”) or other
federal, state, or local agency or participating in any investigation or proceeding conducted by
such administrative agencies. However, Employee is waiving any claim Employee may have to receive
monetary damages in connection with any Commission and/or NLRB or other agency proceeding
concerning matters covered by this Agreement.
7. Waiver of Civil Code Section 1542. It is the intention of the Parties in executing
this instrument that it shall be effective as a bar to each and every Claim specified in this
Agreement. In furtherance of this intention, Employee hereby expressly waives any and all rights
and benefits conferred upon Employee by the provisions of Section 1542 of the California Civil
Code, and expressly consents that this Agreement shall be given full force and effect according to
each and all of its express terms and provisions, including those relating to unknown and
unsuspected Claims, if any, as well as those relating to any other Claims hereinabove specified.
Section 1542 provides:
“A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.” |
Having been so apprised, Employee nevertheless hereby voluntarily elects to and does waive the
rights described in Civil Code Section 1542, and elects to assume all risks for Claims that now
exist in Employee’s favor, known or unknown.
8. Non-Disparagement. Employee agrees that Employee will not in any way disparage the
name or reputation of Xxxxx & Xxxxx, including: (1) Employee agrees not to make any derogatory or
negative remarks about Xxxxx & Xxxxx; (2) Employee agrees not to make any negative or derogatory
remarks about any of the Releasees; and (3) Employee agrees not to make any remarks about any
disputes Employee has had with Xxxxx & Xxxxx or any of the Releasees. Xxxxx & Xxxxx agrees that
its executive officers and directors will not in any way defame or disparage the name or reputation
of Employee.
9. Restriction on Interfering with Employee Relationships. By virtue of Employee’s
former position with Xxxxx & Xxxxx, Employee is capable of significantly and adversely impacting
the existing relationships of Xxxxx & Xxxxx and its employees and/or agents. Employee understands
and agrees that Xxxxx & Xxxxx has invested substantial time and effort in assembling its present
personnel. Employee understands and agrees that Xxxxx & Xxxxx has a legitimate interest in
maintaining a stable work force and protecting its relationships against solicitation and/or
interference by Employee for a reasonable period of time following the end of her employment.
Employee understands and agrees that the consideration contained in this Agreement provides
independent consideration for her obligations under this Paragraph 9 to which Employee would not
otherwise be entitled.
Employee agrees that for one year following the Termination Date, Employee will not, personally or
through others solicit, induce, or encourage a Xxxxx & Xxxxx employee to leave Xxxxx & Xxxxx, or
attempt to do so; or to alter his/her relationship with Xxxxx & Xxxxx to Xxxxx & Xxxxx’x detriment.
For the purposes of this Agreement, a Xxxxx & Xxxxx employee means an individual employed by or
retained as a consultant to Xxxxx & Xxxxx, its subsidiaries or affiliated companies, and is limited
to those individuals with whom Employee worked during her last two years of employment.
Employee understands and agrees that the terms in this Paragraph 9 are reasonable in light of the
nature of the position Employee held with Xxxxx & Xxxxx, the relationships Employee has established
with Xxxxx & Xxxxx employees, and the wages, benefits, and bonuses Xxxxx & Xxxxx has paid to its
employees for their services.
10. Return of Xxxxx & Xxxxx Information/Documentation/Property. Employee represents
and warrants that Employee has returned and relinquished to Xxxxx & Xxxxx all Xxxxx & Xxxxx
property and information, including but not limited to any confidential information, and all copies
of any such information, and Employee shall destroy all extracts, memoranda, notes, spreadsheets
and any other material prepared by Employee or Xxxxx & Xxxxx based upon Xxxxx & Xxxxx confidential
information. Xxxxx & Xxxxx property and information includes, but is not limited to, all
information, equipment, books, files, keys to the premises, reports, records, employee lists,
correspondence, materials, and other documents including all reproductions, that may be considered
to be property of Xxxxx & Xxxxx or that contain proprietary information, whether in paper,
magnetic, electronic, or other form, that Employee has relating to Xxxxx & Xxxxx’x practices,
procedures, trade secrets, financial and accounting information, client lists, client information,
client billing and payment information, or marketing of Xxxxx & Xxxxx’ services.
11. Trade Secrets and Confidential Information. Employee acknowledges that during
Employee’s employment, Employee may have had access to trade secrets and confidential information
about Xxxxx & Xxxxx, its products and services, its customers, and its methods of doing business,
including but not limited to files, customer lists, pricing lists, technical data, financial data
and business processes. Employee agrees that Employee shall not disclose any information relating
to the trade secrets or confidential information of Xxxxx & Xxxxx or its customers which has not
already been disclosed to the general public. Employee understands and acknowledges that
Employee’s obligations under prior agreements with Xxxxx & Xxxxx, if any, including but not limited
to, any Confidentiality, Intellectual Property, Trade Secrets, Non-Solicitation, Stock Options, and
Employee Stock Purchase Plan, will remain in full force following Employee’s termination of
employment and that Employee will continue to abide by any such prior agreements.
12. Twenty-One Days To Consider Agreement. Xxxxx & Xxxxx advises Employee to discuss
this Agreement with an attorney before executing it. Employee’s decision whether to sign this
Agreement is made with full knowledge that Xxxxx & Xxxxx has advised Employee to consult with an
attorney. Employee acknowledges Employee has been provided with at least 21 days within which to
review and consider this Agreement before signing it. Should Employee decide not to use the full
21 days, then Employee knowingly and voluntarily waives any claim that Employee was not in fact
given that period of time or did not use the entire 21 days to consult an attorney and/or consider
this Agreement. Employee acknowledges that Xxxxx & Xxxxx has not asked Employee to shorten the
21-day time period for consideration of whether to sign this Agreement.
The Parties agree that any changes, whether material or immaterial, to this Agreement, do not
restart the running of the 21-day period.
13. Right of Revocation. Within three calendar days of signing and dating this
Agreement, Employee shall deliver the executed original of the Agreement to Xxxxxx Xxxxxxx, SVP,
Human Resources, 0000 X. Xxxxxx Xxx. Xxxxx 000 Xxxxx Xxx, XX 00000. However, the Parties
acknowledge and agree that Employee may revoke this Agreement for up to seven (7) calendar days
following Employee’s execution of this Agreement and that it shall not become effective or
enforceable until the revocation period has expired. The Parties further acknowledge and agree
that such revocation must be in writing addressed to and received by Xxxxxx Xxxxxxx, SVP, Human
Resources, 0000 X. Xxxxxx Xxx. Xxxxx 000 Xxxxx Xxx, XX 00000 not later than midnight on the eighth
(8th) day following execution of this Agreement by Employee. If Employee revokes this
Agreement under this Paragraph 13, this Agreement shall not be effective or enforceable and
Employee will not receive the monies and benefits described above, including those described in
Paragraph 4.
14. Effective Date. If Employee does not revoke this Agreement in the time frame
specified in Paragraph 13, the Agreement shall be effective at 12:00:01 a.m. on the eighth
(8th) day after it is signed by Employee (the “Effective Date”).
15. Choice of Law. This Agreement shall be construed in accordance with, and be deemed
governed by, the laws of the State of California without regard to its conflict of laws provisions.
16. Non-Admission. Even though Xxxxx & Xxxxx will provide consideration for Employee
to release Claims, Xxxxx & Xxxxx does not admit that it engaged in any unlawful or improper conduct
toward Employee. Employee agrees that this Agreement shall not be construed as an admission by
Xxxxx & Xxxxx that it has violated any statute, law or regulation, breached any contract or
agreement, or engaged in any improper conduct. Employee is not aware, to the best of Employee’s
knowledge, of any conduct on Employee’s part or on the part of another Xxxxx & Xxxxx employee who
violated the law or otherwise exposed Xxxxx & Xxxxx to any liability, whether criminal or civil,
whether to any government, individual or other entity. Further, Employee acknowledges that
Employee is not aware of any material violations by Xxxxx & Xxxxx and/or its employees, officers,
directors and agents of any statute, regulation or other rules that have not been addressed by
Xxxxx & Xxxxx through appropriate compliance and/or corrective action.
17. General Terms And Conditions.
a. If any provision of this Agreement or any application of any provision of this Agreement is
held invalid, the invalidity shall not affect other provisions or applications of the Agreement
which can be given effect without the invalid provision or application. To this end, the provisions
of this Agreement are severable.
b. Employee represents and warrants that Employee has not heretofore assigned or transferred
or purported to assign or transfer to any person, firm or corporation any claim, demand, right,
damage, liability, debt, account, action, cause of action, or any other matter herein
released. Employee agrees to indemnify and hold Xxxxx & Xxxxx harmless against any claim,
demand, right, damage, debt, liability, account, action, cause of action, cost or expense,
including attorneys’ fees or costs, actually paid or incurred, arising out of or in any way
connected with any such transfer or assignment or any such purported or claimed transfer or
assignment.
c. This Agreement and all covenants and releases set forth herein shall be binding upon and
shall inure to the benefit of the respective Parties hereto, their legal successors, heirs,
assigns, partners, representatives, parent companies, subsidiary companies, agents, attorneys,
officers, employees, directors and shareholders.
d. The Parties acknowledge each has read this Agreement, that each fully understands
his/her/its rights, privileges and duties under the Agreement, and that each enters this Agreement
freely and voluntarily. The parties acknowledge that each has had the opportunity to consult with
an attorney of his/her/its choice to explain the terms of this Agreement and the consequences of
signing this Agreement.
e. Employee acknowledges Employee may later discover facts different from, or in addition to,
those Employee now knows or believes to be true with respect to the Claims released in this
Agreement, and agrees the release shall be and remain in effect in all respects as a complete and
general release as to all matters released, notwithstanding any such different or additional facts.
f. This Agreement and the provisions contained herein shall not be construed or interpreted
for or against any Party hereto because that Party drafted or caused that Party’s legal
representative to draft any of its provisions.
g. The undersigned each acknowledge and represent that no promise or representation not
contained in this Agreement has been made to them and acknowledge and represent that this Agreement
contains the entire understanding between the Parties and contains all terms and conditions
pertaining to the compromise and settlement of the subjects referenced in this Agreement. Each
Party acknowledges that he/she/it has relied solely upon his/her/its own legal and tax advisors and
that the lawyers, accountants and advisors to the other Party have not given any legal or tax
advice to such Party in connection with this Agreement.
h. This Agreement may be executed in counterparts and, if so executed, each such counterpart
shall have the force and effect of an original. A facsimile signature or signature scanned and
sent by electronic mail shall have the same force and effect as an original signature.
i. In the event Employee breaches any term of this Agreement or has misrepresented any fact
stated herein, disparages the reputation of Xxxxx & Xxxxx or its respective products, personnel, or
business capabilities, or conducts him/herself in a manner so as to interfere with any business
relationship of Xxxxx & Xxxxx, all compensation shall cease, and Xxxxx & Xxxxx and its successors
shall have the right to recover all money paid or provided hereunder.
j. Employee further agrees to cooperate with Xxxxx & Xxxxx regarding any pending threatened or
subsequently filed litigation, claims, or other disputes or internal or external investigations
involving Xxxxx & Xxxxx that relate to matters within the knowledge or responsibility
of Employee during his/her employment with Xxxxx & Xxxxx. Without limiting the foregoing,
Employee agrees (i) to meet with Xxxxx & Xxxxx representatives, its counsel, or other designees at
mutually convenient times and places with respect to any items with the scope of this provision;
(ii) to provide truthful testimony regarding same to any court, agency, or other adjudicatory body;
and (iii) to promptly provide Xxxxx & Xxxxx with written notice of contact by any adverse party or
such adverse party’s representative, except as may be required by law. Xxxxx & Xxxxx will
reimburse Employee for all reasonable, documented out of pocket expenses in connection with the
cooperation described in this Paragraph 17(j).
CONTINUED ON NEXT PAGE
k. Any modifications to this Agreement must be made in writing and signed by Employee and Xxxxxx
Xxxxxxx, SVP Human Resources, or Xxxxxx D’Arcy, Chief Executive Officer, of Xxxxx & Xxxxx Company.
PLEASE READ CAREFULLY. THIS AGREEMENT CONTAINS A
GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
EMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS BEEN ADVISED THAT THIS AGREEMENT IS A BINDING AND
LEGAL DOCUMENT. EMPLOYEE FURTHER AGREES THAT S/HE HAS HAD AT LEAST TWENTY-ONE (21) DAYS TO REVIEW
THE PROVISIONS OF THIS AGREEMENT AND HAS BEEN ADVISED TO SEEK LEGAL ADVICE REGARDING ALL ITS
ASPECTS, AND THAT IN EXECUTING THIS AGREEMENT EMPLOYEE HAS ACTED VOLUNTARILY AND HAS NOT RELIED
UPON ANY REPRESENTATION MADE BY XXXXX & XXXXX OR ANY OF ITS EMPLOYEES OR REPRESENTATIVES REGARDING
THIS AGREEMENT’S SUBJECT MATTER AND/OR EFFECT. EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS
AGREEMENT AND VOLUNTARILY AGREES TO ITS TERMS.
AGREED AND UNDERSTOOD:
| Date: 10/22/10 | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx | ||||
| Date: 10/22/10 | XXXXX & XXXXX COMPANY, on its own behalf and on behalf of its Related Entities |
|||
| By: | /s/ Xxxxxx D’Arcy | |||
| Xxxxxx D’Arcy | ||||
| Chief Executive Officer | ||||
