SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
1. Parties. The parties to this Employment Agreement and General Release (Agreement) are:
A. | Edward A. Stokx (Employee). |
B. | PS Business Parks, Inc., PS Business Parks, L.P. |
and their past and present shareholders, officers, directors, employees, subsidiaries, partners, affiliated companies, attorneys, agents, and their successors, heirs, executors and administrators and representatives (herein Employer).
This Agreement shall become effective on the day that both parties sign below (the Effective Date.).
2. Recitals.
A. Employee is currently employed by Employer as Executive Vice President, Chief Financial Officer and Secretary.
B. Whereas, Employee and Employer have agreed to end their employment relationship in a mutually satisfactory manner, and to resolve all known and unknown disputes between them.
C. Therefore, Employee and Employer have agreed to the following covenants and agreements:
3. Consideration.
Employee and Employer agree that Employees last day of employment shall be August 31, 2017 (Separation Date). If Employee executes and delivers to Employer (a) an executed original of this Agreement and General Release as provided herein; (b) an executed original of Addendum A attached hereto on August 31, 2017 and (c) does not revoke the Agreement as provided herein and does not revoke Addendum A within seven days after execution thereof, the Parties agree as follows:
(A) Employer shall pay Employee One Million Five Hundred Thousand Dollars and Zero Cents ($1,500,000.00) as consideration for the Agreement and Addendum A by issuing a payroll check made out to Edward A. Stokx, less all applicable and customary taxes, withholdings, and all other normal payroll deductions (Separation Amount). Employer will also issue Employee an Internal Revenue Service (IRS) Form W-2 in connection with the payment of this Separation Amount. Separation Amount shall be payable when the Agreement and Addendum A have been fully executed by Employee and
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no later than twenty one days after the execution of Addendum A. The parties agree that the payments provided for in this paragraph will constitute the sole, entire, and only financial obligation of the Company to Employee.
(B) Employees failure to fully execute the Agreement herein and Addendum A as set forth therein will terminate the Agreement and Addendum A and Employee will take nothing.
4. Cooperation.
The parties further agree that at all times following the Separation Date, Employee will cooperate fully with the Employer in providing truthful testimony as a witness or a declarant in connection with any present or future court, administrative, governmental agency or arbitration proceeding involving the Employer with respect to which the Employee has relevant information arising out of his employment with the Employer. Employee also will assist Employer during the discovery phase (or prior thereto) of any judicial, administrative, arbitration, or governmental agency proceeding involving Employer and with respect to which the Employee has relevant information arising out of his employment with Employer including, without limitation, meeting with counsel, assisting and cooperating in the preparation and review of documents, and meeting with other representatives of the Employer. The parties agree that such cooperation and assistance shall, to the extent practicable (giving due regard to the needs of the Employer and the requirements of Employees then current work obligations), be at times and places that are mutually convenient to both the Employee and the Employer. The Employer agrees that it will pay, upon production of appropriate receipts, the reasonable business expenses (including air transportation, hotel, and similar expenses) incurred by Employee in connection with such assistance. Employee represents that he is not presently aware of any conflict of interest between himself and Employer in connection with any pending litigation or investigations that may give rise to a question regarding the possible need for independent counsel with respect to the defense of such matters and will immediately notify Employer if any conflict of interest shall arise in the future.
5. Non-Admission of Liability. The parties understand and agree that their execution of this Agreement shall not in any way constitute or be construed as an admission of liability whatsoever by party, their successors or any related parties.
6. Termination of Employment Relationship. Unless the employment relationship is otherwise terminated in connection with this section, the parties agree that Employees employment with Employer shall terminate as of 11:59 P.M. Pacific Time on the Separation Date. Prior to the Separation Date, the employment relationship may only be terminated by the Employer for cause. Termination for cause may be based upon any of the following, as determined by Employer in its reasonable discretion:
(i) Any act of fraud, dishonestly, embezzlement, or theft.
(ii) Conviction of, or a plea of nolo contendere to, any felony or any misdemeanor involving moral turpitude;
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(iii) Any act of gross negligence in the performance of Employees responsibilities;
(iv) Any inexcusable repeated or prolonged absence from work other than as a result of illness or a disability;
(v) Employees voluntary resignation from employment with Employer after having committed any act that would constitute cause for termination of the employment relationship as defined in this Section 6;
(vi) Failure to fulfill the responsibilities of the Employees position.
In the event Employees employment is terminated for cause, Employee will receive his base salary and unused vested vacation benefits through the date of termination, plus reimbursement for those properly documented, reasonable travel or similar expenditures incurred by Employee prior to termination and consistent with prior practice that are reasonably necessary for the proper discharge of Employees duties under this Agreement and Employer will not owe to Employee any other compensation or financial obligations, including but not limited to the compensation and consideration set forth in paragraph 3 above.
7. Property. By the Separation Date, Employee will execute and deliver to Employer a truthful written acknowledgment that Employee has returned to Employer all documents, reports, files, memoranda, records, Company credit cards, key passes, door and file keys, laptop, computer access codes, information and other physical and personal property of Employer which Employee received or helped prepare in connection with Employees employment and which Employee has in Employees possession. The term information as used in this Agreement means (a) confidential information including, without limitation, information received from Employers clients, employees or its agents, under confidential conditions; and (b) other business or financial information received because of Employees employment with Employer.
Employee further represents that he will remove all personal possessions from Employers premises by the Separation Date.
8. Trade Secrets and Confidential Information. Employers competitive success depends on the proper safeguarding of Employers trade secrets and confidential information. Certain such information of Employer pertains to the privacy interests of individuals and must be safeguarded for that reason as well. Employee promises to continue to preserve the confidentiality of Employers trade secrets and commercially useful confidential information learned through Employees employment and to use this information only as necessary and appropriate for Employers legitimate business purposes. Employee promises to safeguard against disclosure without the consent of affected persons all information touching on the privacy interests of Employers employees
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and tenants. Employers trade secrets and commercially useful confidential information include without limitation Employers non-public financial information and the contents of Employers business plans.
9. Non Solicitation. Employee agrees that for a period of one year following the termination or expiration of this agreement, Employee will not directly or indirectly, or by action in concert with others, induce or influence (or seek to induce or influence), any person who is engaged as an employee, agent, independent contractor or otherwise by Employer to terminate such persons employment or engagement with Employer.
10. General Release by Employee. In exchange for the promises contained herein, Employee, for good and valuable consideration, the adequacy and receipt of which is hereby acknowledged, for Employee, Employees attorneys, successors and assigns (collectively Releasors), hereby releases and forever discharges Employer, and its subsidiaries, affiliates, officers, directors, shareholders, successors, predecessors, agents, attorneys, present employees and past employees, and each of their respective subsidiaries, affiliates, officers, directors, shareholders, successors, predecessors, agents, attorneys, present employees and past employees (collectively Releasees), and each of them from any and all past, present and future claims, demands, causes of action, and liabilities of every kind and nature whatsoever, known and unknown, suspected or unsuspected, which the Releasees ever had, now have, hereinafter can, shall or may have, from the beginning of time to the effective date hereof, including but not limited to any claims, demands, causes of action or liabilities which Employee could assert at common law, by any statute, rule, regulation, ordinance or law, whether federal, state or local, or on any other grounds whatsoever, that pertain to or arise out of the Employees employment with Employer, including but not limited to claims under the California Labor Code, California Government Code, the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000E et seq., the Age Discrimination In Employment Act, the Equal Pay Act, the Rehabilitation Act of 1973, Section 1981 of Title 42 of United States Code, claims for wrongful discharge, breach of contract, negligence, implied contract, quasi-contract, promissory estoppel, implied covenant of good faith and fair dealing, bad faith and denial of existence of contract, defamation, interference with contractual relationships, invasion of privacy, infliction of emotional distress, employment discrimination, retaliation, failure to prevent discrimination from occurring, fraud, and all other federal, state and local laws, ordinances, regulations or orders which relate in any way to employment, termination of employment or the continuing effects thereof.
11. Notice Re Waiver of Rights. If Employee signs this Agreement, Employee will forever give up all rights and claims arising out of his employment with Employer, including the waiver and release of all discrimination claims. The Federal Age Discrimination In Employment Act (ADEA) requires that employers give certain notices to employees (including ex-employees) involved in claims that may include age discrimination. Pursuant to the Federal Age Discrimination In Employment Act, Employer hereby notifies Employee of the following employee rights:
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A. Employee may not waive or release any right or claim under the Age Discrimination In Employment Act unless Employees waiver and release is knowing and voluntary, and employee fully understands all of the terms of the release.
B. Employees waiver and release must be part of an agreement between Employee and Employer and must be written in a manner calculated to be understood by Employee.
C. Employees waiver or release must specifically refer to the rights or claims arising under the Federal Age Discrimination In Employment Act.
D. Employee may not waive or release any of Employees rights or claims that arise after the date Employee signs this Agreement.
E. Employee may only waive or release rights or claims in exchange for consideration in addition to anything of value to which Employee is already entitled.
F. Employee is advised in writing to consult with an attorney before signing this Agreement.
G. Employee has a period of at least 21 days in which to consider whether to sign this Agreement and this Agreement provides that for seven days after Employee signs this Agreement, Employee may revoke the Agreement and this Agreement will not become effective or enforceable until this seven day revocation period expires.
Revocation shall be made solely by delivering a written notice of revocation to:
Maria R. Hawthorne
President and CEO
PS Business Parks
701 Western Avenue,
Glendale, CA 91201
Employee agrees to keep written documentation proving that Employee revoked this Agreement as provided in this paragraph, either by keeping the documents attesting to the delivery of the revocation, or verification that the fax was, in fact, received. If Employee revokes Agreement in accordance with this section, the entire Agreement is null and void and Employee will take nothing under this Agreement. If Employee signs this Agreement before the 21-day period has expired, Employee does so knowingly and voluntarily.
12. Power to Release. Employee represents and warrants that Employee is the sole owner of the claims, demands, causes of action and liabilities which Employee is releasing, and Employee has full power to give the release provided for herein. Employee further represents and warrants that Employee has not assigned or transferred any of the claims, demands, causes of action or liabilities released herein and agrees to indemnify and hold Employer harmless from and against any claims, demands, causes of action and liabilities, including attorney fees incurred, arising out of any such transfer or assignment.
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13. Waiver of Unknown Claims. Employee expressly waives the provisions, rights and benefits of Section 1542 of the California Civil Code and any similar laws of any other jurisdiction, which provide:
Section 1542. General Release Claims Extinguished. 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.
Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of all Releasees with respect to claims in California as well as all other jurisdictions, the Employee expressly acknowledges that the General Release contained in Paragraph 10 is intended to include not only claims that are known, anticipated or disclosed, but also claims that are unknown, unanticipated and undisclosed.
This Paragraph 13 shall not serve as a release of rights under or preclude the parties from filing suit to enforce the provisions of the Agreement or with respect to any right to indemnification provided under Employees director and officers liability insurance policy or Employers bylaws.
14. Integration. This Agreement (including the Addendum) and the parties existing arbitration agreement (the Arbitration Agreement) contain a single integrated contract expressing the entire agreement of the parties on the issues stated herein. With the exception of the Arbitration Agreement (which the parties intend to remain effective), there are no other agreements, written or oral, express or implied, prior or collateral, between the parties, except the Agreement set forth herein. No representative of any party hereto has or had any authority to make any representations or promises not contained in this Agreement, and each of the parties acknowledges that they have not executed this Agreement in reliance upon any such representation or promise. This Agreement cannot be modified or changed except by a written instrument signed by each of the parties.
15. Severability. The provisions of this Agreement are severable, and if any part is found to be unenforceable, the other provisions shall remain fully valid and enforceable.
16. Effective Date. Employee shall have a period of at least 21 days within which to consider this Agreement, and, if thereafter executed by Employee, this Agreement may be revoked during the period of seven days following the execution of this Agreement. This Agreement shall not become effective or enforceable until such revocation period has expired. If Employee revokes this Agreement in accordance with Section 11 herein, the entire Agreement is null and void and Employee will take nothing under this Agreement.
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17. Section 409A.
A. Notwithstanding anything herein to the contrary, to the maximum extent permitted by applicable law, amounts payable to Employee pursuant this Agreement shall be made in reliance upon Treas. Reg. Section 1.409A-1(b)(9) (Separation Pay Plans) or Treas. Reg. Section 1.409A-1(b)(4) (Short-Term Deferrals), as applicable. For this purpose, each payment (including each monthly installment, if any) shall be considered a separate and distinct payment, and each payment made in reliance on Treas. Reg. Section 1.409A-1(b)(9) shall only be payable if the Employees termination of employment constitutes a separation from service within the meaning of Treas. Reg. Section 1.409A-1(h).
B. Notwithstanding anything contained in this Agreement to the contrary, no amount payable on account of Employees termination of employment which constitutes a deferral of compensation (Section 409A Deferred Compensation) within the meaning of the Treasury Regulations issued pursuant to Section 409A of the Code (the Section 409A Regulations) shall be paid unless and until Employee has incurred a separation from service, and any payment period set forth under this Agreement commences in one taxable year and ends in another, then payment under such section shall not be made until the second taxable year. Furthermore, if Employee is a specified employee within the meaning of the Section 409A Regulations as of the date of Employees separation from service, no amount that constitutes Section 409A Deferred Compensation which is payable on account of Employees separation from service shall be paid to Employee before the date (the Delayed Payment Date) which is first business day of the seventh (7th) month after the date of Employees separation from service or, if earlier, the date of Employees death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date.
C. The Company intends that income provided to Employee pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. The provisions of this Agreement shall be interpreted and construed in favor of satisfying any applicable requirements of Section 409A and the Section 409A Regulations. However, the Company does not guarantee any particular tax effect for income provided to Employee pursuant to this Agreement. In any event, except for the Companys responsibility to withhold applicable income and employment taxes from payments made to Employee, the Company shall not be responsible for the payment of any applicable taxes incurred by Employee on payments made to Employee pursuant to this Agreement.
18. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of California. This Agreement may be executed in counterparts, each of which may be deemed to be an original and all of which shall constitute the Agreement; provided, however, that the Agreement shall not become effective until completely conforming counterparts have been signed and delivered by each of the parties hereto.
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19. Captions and Interpretations. Paragraphs, titles, captions contained herein are inserted for convenience and reference, and are not intended to define, limit or describe the scope of the Agreement or any provisions thereof. No provision of the Agreement is to be interpreted for or against any party on the basis that a particular party or Employees attorney drafted such provisions.
20. Conditions of Execution. Each party acknowledges and warrants that their execution of the Agreement is free and voluntary.
21. Attorney Fees and Costs. If any party hereto commences any action or other proceeding to enforce or interpret this Agreement, including any actions to reform or rescind or any manner effect the provisions of this Agreement, the prevailing party shall be entitled to all reasonable costs incurred therewith, including but not limited to actual attorney fees. Otherwise, the parties shall each bear their own attorney fees and costs incurred.
Dated: August 14, 2017 | /s/ Edward Stokx | |||||
Employee name | ||||||
Dated: August 14, 2017 | Employer | |||||
By: | /s/ Maria R. Hawthorne | |||||
Maria Hawthorne | ||||||
Its: | President and Chief Executive Officer |
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ADDENDUM A
General Release by Employee. For good and valuable consideration, the adequacy and receipt of which is hereby acknowledged, for Employee, Employees attorneys, successors and assigns (collectively Releasors), hereby releases and forever discharges Employer, and its subsidiaries, affiliates, officers, directors, shareholders, successors, predecessors, agents, attorneys, present employees and past employees, and each of their respective subsidiaries, affiliates, officers, directors, shareholders, successors, predecessors, agents, attorneys, present employees and past employees, heirs, executors, and personal representatives (collectively Releasees), and each of them from any and all past, present and future claims, demands, causes of action, and liabilities of every kind and nature whatsoever, known and unknown, suspected or unsuspected, which the Releasees ever had, now have, hereinafter can, shall or may have, from the beginning of time to the effective date hereof, including but not limited to any claims, demands, causes of action or liabilities which Employee could assert at common law, by any statute, rule, regulation, ordinance or law, whether federal, state or local, or on any other grounds whatsoever, that pertain to or arise out of the Employees employment with Public Storage, including but not limited to claims under the California Labor Code, California Government Code, the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000E et seq., the Age Discrimination In Employment Act, the Equal Pay Act, the Rehabilitation Act of 1973, Section 1981 of Title 42 of United States Code, claims for wrongful discharge, breach of contract, negligence, implied contract, quasi-contract, promissory estoppel, implied covenant of good faith and fair dealing, bad faith and denial of existence of contract, defamation, interference with contractual relationships, invasion of privacy, infliction of emotional distress, employment discrimination, retaliation, failure to prevent discrimination from occurring, fraud, and all other federal, state and local laws, ordinances, regulations or orders which relate in any way to employment, termination of employment or the continuing effects thereof.
If Employee signs this Addendum, Employee will forever give up all rights and claims that may have arisen out of his Employment, including the waiver and release of all discrimination claims. The Federal Age Discrimination In Employment Act requires that employers give certain notices to employees (including ex-employees) involved in claims that may include age discrimination. Pursuant to the Federal Age Discrimination In Employment Act, Employer hereby notifies Employee of the following employee rights:
A. Employee may not waive or release any right or claim under the Age Discrimination In Employment Act unless Employees waiver and release is knowing and voluntary, and employee fully understands all of the terms of the release.
B. Employees waiver and release must be part of an agreement between Employee and Employer and must be written in a manner calculated to be understood by Employee.
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C. Employees waiver or release must specifically refer to the rights or claims arising under the Federal Age Discrimination In Employment Act.
D. Employee may not waive or release any of Employees rights or claims that arise after the date Employee signs this Addendum.
E. Employee may only waive or release rights or claims in exchange for consideration in addition to anything of value to which Employee is already entitled.
F. Employee is advised in writing to consult with an attorney before signing this Addendum.
G. Employee has a period of at least 21 days in which to consider whether to sign this Addendum, and this Addendum provides that for seven days after Employee signs this Addendum, Employee may revoke the Addendum and this Addendum will not become effective or enforceable until this seven day revocation period expires.
Revocation shall be made solely by delivering a written notice of revocation to:
Maria Hawthorne
President and Chief Executive Officer
PS Business Parks
701 Western Avenue, Glendale, CA 91201
Employee agrees to keep written documentation proving that Employee revoked this Addendum as provided in this paragraph, either by keeping the documents attesting to the delivery of the revocation, or verification that the fax was, in fact, received. If Employee signs this Addendum before the 21-day period has expired, Employee does so knowingly and voluntarily.
The payment of all amounts set forth in the Agreement attached hereto are contingent upon the non-revocation of this Addendum and Employers obligations thereunder will not become effective or enforceable until this seven-day revocation period expires. If Employer revokes his release of claims as provided above, all of Employers obligations under the Agreement will immediately terminate.
Dated: |
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Employee |
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