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Exhibit 99.1
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (this "
Agreement ") is made and entered
into as of February 27, 2007, by and between Maguire Properties,
Inc., a Maryland corporation (the " REIT
"), Maguire Properties, L.P., a Maryland limited
partnership (the " Operating Partnership
"), and Dallas E. Lucas (the "
Executive ").
WHEREAS, the REIT, the Operating Partnership and
the Executive have previously entered into that certain Employment
Agreement, effective as of June 27, 2003 (the "
Employment Agreement "), pursuant
to which the Executive is currently employed as Executive Vice
President and Chief Financial Officer of the REIT and the Operating
Partnership (collectively, the " Company
").
WHEREAS, pursuant to that certain Performance
Award Agreement, dated as of April [23], 2005, by and between the
REIT, the Operating Partnership and the Executive (the "Performance
Award Agreement"), the REIT granted to the Executive a Performance
Award (as defined in the Performance Award Agreement) under the
Amended and Restated 2003 Incentive Award Plan of Maguire
Properties, Inc., Maguire Properties Services, Inc. and Maguire
Properties, L.P..
WHEREAS, the Executive and the Company desire to
specify the terms of the Executive’s resignation from his
positions as Executive Vice President and Chief Financial Officer
of the Company, and as an employee of the Company, and to provide
for the termination of the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing
recitals, the mutual promises contained herein, and for other good
and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as
follows:
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1.
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RESIGNATION; TERMINATION OF EMPLOYMENT
AGREEMENT
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1.1. Resignation . The Executive hereby tenders, and the
Company hereby accepts, the Executive’s resignations from (a)
his positions as Executive Vice President and Chief Financial
Officer of the Company and as an employee of the Company, (b) his
position as an officer and/or employee of any and all subsidiaries
and affiliates of the Company, in each case effective as of March
2, 2007 (the " Effective Date "). Notwithstanding anything contained herein or in the
Employment Agreement, the Executive’s resignation hereunder
shall not be deemed either a resignation for "Good Reason" or a
termination for "Cause" for purposes of, and each as defined in,
the Employment Agreement. No later than the Effective Date,
Executive shall return to the Company all Company property in his
possession, including without limitation, keys, credit cards,
telephone calling cards, computer hardware and software, cellular
and portable telephone equipment, personal digital assistant (PDA)
devices, manuals, books, notebooks, financial statements, reports
and other documents.
1.2. Termination
of Employment Agreement . Effective as of the Effective
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Date, the Employment Agreement shall
automatically terminate and be of no further force and effect, and
neither the Company nor the Executive shall have any further
obligations thereunder; provided, however,
that the Company’s obligation to pay to the
Executive the Accrued Obligations and the Other Benefits (each as
defined in the Employment Agreement) and the provisions of Section
8 (Certain Additional Payments by the Company) and Section 9
(Confidential Information and Non-Solicitation) of the Employment
Agreement shall survive the termination of the Executive’s
employment and the termination of the Employment
Agreement.
1.3. Performance Award. Executive
hereby acknowledges that the Performance Award Agreement provides
that in the event of a termination of the Executive’s
employment with the Company for any reason, the Executive’s
right to receive payment of the Performance Award shall be
forfeited to the extent that the Performance Award is not vested as
of the date of termination. Executive further acknowledges that
neither the Performance Award nor any portion thereof is vested as
of the date hereof, and, to the extent that the Performance Award
is not vested as of the Effective Date, all of the
Executive’s right, title and interest in the Performance
Award shall thereupon be forfeited.
1.4 Consulting Agreement .
Concurrently with the execution of this Agreement, the parties
hereby agree to execute that certain Consulting Services Agreement,
dated as of the date hereof, between the Company and Executive, in
the form attached hereto as Exhibit A which shall become effective
as of the Effective Date (the " Consulting Agreement ").
2.1. Executive’s Release. In consideration
of the Company Release (as defined below) and the Company’s
agreement to enter into the Consulting Agreement, and for other
good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Executive agrees that, as of the
Effective Date, he shall execute and deliver to the Company a
release of claims in substantially the form attached hereto as
Exhibit B (the "Executive Release").
2.2. Company’s Release. In consideration of
the Executive Release and the Executive’s agreement to enter
into the Consulting Agreement, and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the Company agrees that, as of the Effective Date, it
shall execute and deliver to the Executive a release of claims in
substantially the form attached hereto as Exhibit C (the "Company
Release").
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3.
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CONFIDENTIALITY,
NON-SOLICITATION
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3.1. Reaffirmation of Prior Agreements . Executive hereby
acknowledges and agrees that the Executive is bound by certain
confidentiality and non-solicitation covenants set forth in Section
9 of the Employment Agreement. Notwithstanding anything contained
in this Agreement, Executive hereby reaffirms the covenants and
provisions set forth in Section 9 of the Employment Agreement and
acknowledges and agrees that the provisions of Section 9 of the
Employment Agreement shall survive the termination of the
Executive’s employment with the
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Company and shall remain in full force and
effect.
4.1. Arbitration . Any disagreement, dispute, controversy or
claim arising out of or relating to this Agreement or the
interpretation of this Agreement or any arrangements relating to
this Agreement or contemplated in this Agreement or the breach,
termination or invalidity thereof shall be settled by final and
binding arbitration administered by JAMS/Endispute in Los Angeles,
California in accordance with the then existing JAMS/Endispute
Arbitration Rules and Procedures for Employment Disputes. In the
event of such an arbitration proceeding, the Executive and the
Company shall select a mutually acceptable neutral arbitrator from
among the JAMS/Endispute panel of arbitrators. In the event the
Executive and the Company cannot agree on an arbitrator, the
Administrator of JAMS/Endispute will appoint an arbitrator. Neither
the Executive nor the Company nor the arbitrator shall disclose the
existence, content, or results of any arbitration hereunder without
the prior written consent of all parties. Except as provided
herein, the Federal Arbitration Act shall govern the
interpretation, enforcement and all proceedings. The arbitrator
shall apply the substantive law (and the law of remedies, if
applicable) of the state of California, or federal law, or both, as
applicable, and the arbitrator is without jurisdiction to apply any
different substantive law. The arbitrator shall have the authority
to entertain a motion to dismiss and/or a motion for summary
judgment by any party and shall apply the standards governing such
motions under the Federal Rules of Civil Procedure. The arbitrator
shall render an award and a written, reasoned opinion in support
thereof. Judgment upon the award may be entered in any court having
jurisdiction thereof.
4.2. Waiver of
Jury Trial . By submitting a dispute to arbitration, the
parties hereto understand that they will not enjoy the benefits of
a jury trial. Accordingly, the parties hereto expressly waive the
right to a jury trial.
4.3. Nonexclusive
Remedy . Notwithstanding the above provisions regarding
arbitration, the parties each retain their respective rights to
seek injunctive relief or other provisional remedies provided under
the law in any court having competent jurisdiction.
5.1. Section 409A
of the Code . To the extent applicable, this Agreement shall
be interpreted in accordance with Section 409A of the Internal
Revenue Code of 1986, as amended (the " Code
"), and Department of Treasury regulations and other
interpretive guidance issued thereunder. Notwithstanding any
provision of this Agreement to the contrary, the Company may adopt
such amendments to this Agreement or adopt other policies and
procedures (including amendments, policies and procedures with
retroactive effect), or take any other actions, that the Company
determines are necessary or appropriate to (a) exempt the amounts
and benefits provided
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