Exhibit 10.35
March 22, 2002
Xx. Xxxxxxxxx X. Xxxxx
c/o Security Capital Group Incorporated
000 Xxxxxxx Xxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Dear Xx. Xxxxx:
In connection with the anticipated merger (the "Merger") of
Security Capital Group, Inc. (the "Company") with and into an indirect
subsidiary of General Electric Capital Corporation ("GE Capital"), we are
entering into the following agreement (this "Agreement"). You, the Company and
GE Capital hereby agree as follows:
1. Restrictive Covenants and Confidentiality. In return for your
agreeing to the terms of this Agreement, including the restrictive covenants set
forth in this paragraph 1, GE Capital shall cause the Company to pay to you, or
in the event of your death, your estate, a payment by wire transfer in the
amount of two million, three hundred and ninety-five thousand dollars
($2,395,000) (less applicable withholding taxes), at the time at which the
Merger becomes effective ("the Effective Time").
(a) Noncompetition. You agree that for a period of eighteen
(18) months from the Effective Time (the "Restricted Period"), you will not,
directly or indirectly, be employed as an executive officer, serve on the Board
of Directors, or otherwise actively participate in the management of any
business that is engaged in a Competitive Business, as defined herein. For
purposes of this Agreement, "Competitive Business" means ownership and operation
of any of the following: (i) self-storage facilities ("Storage Assets"), (ii)
grocery-store, drug store or general merchandise discount store anchored
shopping centers under 250,000 square feet of leasable area ("Grocery Assets")
or (iii) central business district parking facilities, whether on a domestic or
international basis ("Parking Assets") (each of Storage Assets, Grocery Assets
and Parking Assets is referred to below as a "Restricted Assets Class").
"Competitive Business" does not include ownership of any assets in a Restricted
Assets Class that are incidental to other real estate assets owned by the entity
(for example, a company that owns office properties that include garage
facilities or retail facilities). Notwithstanding the foregoing:
(1) You may be employed as an executive officer, serve on the
Board of Directors, or otherwise actively participate in the
management of any entity that has or makes investments in the
Restricted Asset Classes provided that the following criteria are
met: (A) at the time you begin serving in such capacity, the
entity
does not own, control, or manage more than $250 million of
Storage Assets, more than $250 million of Grocery Assets, or more
than $200 million of Parking Assets ; and (B) the entity does not
acquire, in any calendar year, more than $150 million of Storage
Assets, more than $150 million of Grocery Assets, or more than
$100 million of Parking Assets. The dollar amounts in the
preceding sentence refer to the original purchase price for the
assets in question.
(2) You may be employed by or otherwise affiliated with a private
investment, leveraged buy-out or real estate advisory firm that
invests as a principal or advises clients engaged in a
Competitive Business that does not meet the requirements of
subparagraph (1) above, so long as you do not personally
participate in the firm's decisions and activities relating to
such investments or client services.
(b) Nonsolicitation. You agree that during the Restricted
Period, you shall not, whether for you or for any other person, business,
partnership, association, firm, company or corporation, solicit, divert or take
away any of the customers (entities or individuals from which the Company or any
of its affiliates receives rents or payments for services) of the Company or any
affiliate thereof or employees of the Company or any affiliate thereof in
existence from time to time during your employment with the Company or any
affiliate thereof and at the time of such initiation, solicitation or diversion.
For purposes of this paragraph 1(b), "affiliate" means any affiliate of the
Company immediately prior to the Effective Time that continues to be an
affiliate of the Company at the relevant time. Notwithstanding anything in this
agreement to the contrary, you may make general solicitations for employees
and/or customers through customary industry channels (including, but not limited
to, the public media).
(c) Nondisparagement. You agree that during the Restricted
Period, you shall not make or cause to be made to the media, public interest
groups, trade associations or publishing companies any disparaging statements
regarding the Company or any of its affiliates that are intended to cause
demonstrable and material economic damage to the Company or any of its
affiliates.
(d) Confidentiality. You acknowledge that in connection with
your employment with the Company and its subsidiaries, you obtained knowledge
about confidential and proprietary information, or trade secrets of the Company,
including but not limited to lists of customers, technical information about
products and price information. You agree not to use, publish or otherwise
disclose any such information to others without the prior written approval of
the Company, except in the normal course of carrying out your employment duties
with the Company. Notwithstanding the foregoing, the restrictions of this
subparagraph (d) shall not apply to information that is or shall become
generally known to the public or the trade (except by reason of your breach of
your obligations hereunder), information that is or shall become available in
trade or
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other publications, information known to you prior to entering
the employ of the Company, and information that you are requested
or required to disclose by law or an order of a court of
competent jurisdiction or other legal process (provided that
prior to your disclosure of any such information required by law
or order of such court, you provide the Company with reasonable
notice and a reasonable opportunity to seek a protective order to
prevent such disclosure).
(e) Employment Release. Except as provided in paragraph
1(e)(iii), effective as of the date hereof, you and your heirs, assigns, and
agents release, waive, and discharge GE Capital, the Company and their
affiliates and their respective directors, officers, employees, subsidiaries,
affiliates, and agents (collectively, the "Released Persons") from each and
every claim, action or right of any sort, known or unknown, arising on or before
the date hereof that arises out of, or relates to, your employment by the
Company or any of its affiliates.
(i) Except as provided in subparagraph (iii) below, the
foregoing release includes, but is not limited to, any claim of discrimination
on the basis of race, sex, religion, marital status, sexual orientation,
national origin, handicap or disability, age, veteran status, special disabled
veteran status, or citizenship status; any other claim based on a statutory
prohibition; any claim arising out of or related to an express or implied
employment contract, any other contract affecting terms and conditions of
employment, or a covenant of good faith and fair dealing; any tort claims and
any personal gain with respect to any claim arising under the qui tam provisions
of the False Claims Act, 31 U.S.C. 3730.
(ii) You represent that you understand the foregoing release,
that rights and claims under the Age Discrimination in Employment Act of 1967,
as amended, ("ADEA") are among the rights and claims against the Released
Persons you are releasing, and that you understand that you are not releasing
any rights or claims arising after the Effective Time.
(iii) This release shall not apply to any claim, action or
right that you have under any of the Company's employee benefit plans, programs
or arrangements, fringe benefits or perquisites (including any contractual right
to reimbursement upon the sale of a principal residence), other than your rights
under any change in control agreement or related agreement, including the Change
in Control Agreement entered into on November 29, 2001 and the letter agreement
and term sheet dated December 14, 2001.
(iv) You acknowledge that before entering into this Agreement,
you have had the opportunity to consult with any attorney or other advisor of
your choice, and that this Agreement constitutes advice from the Company to do
so if you choose. You further acknowledge that you have entered into this
Agreement of your own free will, and that no promises or representations have
been made to you by any person to induce you to enter into this Agreement other
than the express terms set forth herein. You further acknowledge that you have
read this Agreement and understand all of its terms, including the waiver of
rights set forth in paragraph 1(e) of this Agreement above. You may
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revoke this Agreement after signing it, but only by delivering a signed
revocation notice to the Company within seven (7) days of signing this
Agreement.
2. Successors. This Agreement and all your rights hereunder shall
inure to the benefit of and be enforceable by your personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. This Agreement shall be binding upon the Company, GE
Capital and their respective successors. The Company and GE Capital each shall
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of its business and/or
assets to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company or GE Capital, as applicable,
would be required to perform it if no succession had taken place.
3. Injunctive Relief. You acknowledge that the services rendered
by you to the Company and its subsidiaries are of a special, unique and
extraordinary character and, in connection with such services, you had access to
confidential information vital to the Company's and its subsidiary companies'
businesses. By reason of this, you consent and agree that if you violate any of
the provisions of paragraph 1 of this Agreement, GE Capital, the Company and
their subsidiary companies would sustain irreparable harm and, therefore, the
Company shall be entitled to an injunction restraining you from committing or
continuing any such violation of this Agreement, and GE Capital and the Company
acknowledge that injunctive relief shall be their sole and exclusive remedy if
you violate any of the provisions of paragraph 1 of this Agreement.
4. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by you and by the Company and GE Capital. This Agreement
constitutes the complete understanding between the parties with respect to
matters contained herein and supersedes any other prior oral or written
agreements, arrangements or understandings between you and the Company and/or GE
Capital to the extent set forth herein, other than pursuant to the letter
agreement entered into as of the date hereof with respect to your continuing
employment with the Company (the "Employment Letter Agreement"). No agreements
or representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement, other than pursuant to the Employment Letter
Agreement. This Agreement may not be changed or terminated orally but only by an
agreement in writing signed by the parties hereto. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of New York. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
5. Fees. In the event that it shall be necessary or desirable for
you to retain legal counsel or incur other costs and expenses in connection any
dispute arising under this Agreement, the Company shall pay (or you shall be
entitled to recover from the Company, as the case may be) your reasonable
attorneys' fees and costs and expenses
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in connection with enforcement of your rights (including the enforcement of
any award in court). Payments shall be made to you at the time such fees, costs
and expenses are incurred. If, however, it is determined by the court
adjudicating the relevant matter that, under the circumstances, payment by the
Company of all or a part of any such fees and costs and expenses would be
unjust, you shall repay such amounts to the Company in accordance with such
order.
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If the foregoing is satisfactory, please so indicate by
signing and returning to the Company the enclosed copy of this letter whereupon
this will constitute our agreement on the subject.
SECURITY CAPITAL GROUP, INC.
By:____________________________
Name:
Title:
Date and Time:________________
GENERAL ELECTRIC CAPITAL CORPORATION
By:____________________________
Name:
Title:
Date and Time:________________
ACCEPTED AND AGREED TO:
--------------------------
XXXXXXXXX X. XXXXX
Date and Time: _______________________
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