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Exhibit 10.17
SEVERANCE AGREEMENT AND GENERAL RELEASE
This Severance Agreement and General Release ("Agreement") is entered
into this 15th day of January, 1998, by and between Xxxx X. Xxxxxxx ("Employee")
and Lexford Residential Trust (the "Company").
WHEREAS, Employee is currently employed by the Company as Senior Vice
President of Asset Management; and
WHEREAS, Employee's position is being eliminated as a result of the
reorganization of the Company's Asset Management department; and
WHEREAS, both Employee and the Company desire to resolve any
differences and disputes now pending, or which may arise in the future with
respect to Employee's employment, compensation therefor, and termination
thereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Employee and the Company hereby
acknowledge and voluntarily agree as follows:
1. Termination of Employment; Resignation. Employee's employment with
the Company will terminate on January 15, 1999. Employee, simultaneous with, and
by means of the execution and delivery hereof, hereby tenders his resignation,
effective January 15, 1999, as Senior Vice President of Asset Management of the
Company, which resignation the Company has accepted. To the extent not covered
by the aforementioned resignation, this Agreement shall serve as Employee's
resignation from all positions with any of the Company's subsidiaries or
affiliated partnerships.
2. Severance Pay and Benefits. The Company will provide Employee the
following:
(a) Nine (9) months (the "Severance Period") of compensation
at Employee's base rate of salary, less applicable taxes and
withholding, which the Company will pay in roughly equal installments
on the Company's regularly occurring paydays; provided, however, that
the Company will commence paying such installments no earlier than the
later of: (i) seven (7) days after Employee signs this Agreement; or
(ii) Employee's last day of employment with the Company.
(b) Payment for any earned and unused Paid Time Off (PTO),
pursuant to the Company's PTO policy; provided, however, that the
Company will pay such amount to Employee in a lump sum no earlier than
the later of: (i) seven (7) days after Employee signs this Agreement;
or (ii) Employee's last day of employment with the Company.
(c) Health care and dental coverage under the Company's group
health and dental insurance program, under the same terms and
conditions as such benefits are
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provided to other employees of the Company, through January 15, 1999.
Any continuation of group insurance beyond January 15, 1999 will be in
accordance with the Consolidated Omnibus Budget Reconciliation Act
(COBRA). If Employee elects coverage under COBRA, the Company will
reimburse Employee for the employer portion of the monthly premium
during the Severance Period. After the Severance Period, there will be
no reimbursement for such coverage.
(d) Three (3) months outplacement services through Right
Associates. Such services will include, but are not limited to, career
assessment, determination of career objectives, career transition
campaign design, career transition campaign execution, financial
consulting, and support services.
(e) Any vested 401(k) benefits, pursuant to the provisions of
the Company's 401(k) Savings Plan.
(f) The right to exercise any vested options to purchase the
Company's common shares; provided, that such options must be exercised
by Employee on or before January 15, 1999.
3. Employee's Release of the Company. In consideration of the mutual
agreements and covenants set forth herein, Employee hereby completely and
irrevocably discharges and releases the Company, its officers, trustees,
employees, agents, shareholders, subsidiaries, affiliates, or related entities,
predecessors, successors, and assigns from any and all claims, demands, actions,
charges, causes of action and/or liabilities whatsoever involving any matter
arising out of or in any way related, directly or indirectly, to Employee's
employment with the Company, compensation therefor or the termination thereof,
including, but not limited to, any claim of unpaid compensation, emotional
distress, wrongful discharge, breach of contract, and employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et
seq., the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq., the
Americans with Disabilities Act, 42 U.S.C. 12101 et seq., [Ohio Revised Code
Chapter 4112], and any other federal, state or municipal fair employment
practice or discrimination laws, statutes or ordinances, arising at any time
prior to and including the effective date of this Agreement, including without
limitation, any claim, demand, action, charge, cause of action and/or liability
whatsoever for or on account of any and all matters that are or might have been
the subject matter of or that are or might have been referred to, or in any way
involved with the facts, recitals and circumstances incorporated by reference in
this Agreement. Further, Employee hereby waives any claim against the Company
for attorneys fees, expenses and costs related to the claims, demands, actions,
charges, causes of action and/or liabilities set forth in this Paragraph.
Specifically excepted from this release, however, are the rights and obligations
of Employee and the Company expressly set forth in this Agreement.
4. Full Compensation. Employee and the Company agree that except as
provided for in this Agreement, all compensation and other payments due as a
result of Employee's employment with the Company have been paid in full and that
Employee is not entitled to any additional salary, bonus, or other payments
whatsoever.
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5. Miscellaneous. Employee and the Company hereby further acknowledge:
(a) That each has been afforded the opportunity to review and
consider the terms of this Agreement, for a period of at least
twenty-one (21) days;
(b) That each understands, and has had the opportunity to
receive counsel regarding, their respective rights, obligations, and
liabilities;
(c) To the extent Employee has taken less than twenty-one (21)
days to consider this Agreement, Employee acknowledges that Employee
has had sufficient time to consider this Agreement and to consult with
counsel and that Employee does not desire additional time;
(d) That nothing in this Agreement is or will be construed as
an admission by Employee or the Company of any breach of agreement or
any intentional or unintentional wrongdoing of any nature;
(e) That neither Employee nor the Company has made any
representations concerning the terms or effects of this Agreement other
than those contained in this Agreement, it being clearly understood
that this Agreement may not be modified or terminated orally;
(f) That the terms of this Agreement are not effective or
enforceable until seven (7) days after its execution, during which
period Employee may revoke this Agreement; and
(g) That the benefits provided Employee herein are in excess
of the benefits that Employee would otherwise be entitled to receive.
6. Acceptance of Agreement. Upon signing this Agreement, Employee will
immediately deliver a signed original of this Agreement and all Company property
currently in Employee's possession to Xxxxxx Xxx at Lexford Residential Trust at
0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxx 00000.
7. Continued Availability and Cooperation.
(a) Employee shall cooperate fully with Company by way of
providing factual information and data relevant to matters he worked on
as an employee of Company as well as with Company's counsel in
connection with any future actual or threatened litigation or
administrative proceeding involving Company, its affiliated, related or
subsidiary entities, its officers, directors, shareholders, employees,
agents and representatives, and its successors or assigns that relates
to events, occurrences or conduct occurring (or claimed to have
occurred) during the period of Employee's employment by Company (or any
of its predecessors-in-interest).
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(b) Employee shall be reimbursed by Company for reasonable
travel, lodging, telephone and similar expenses incurred in connection
with any such cooperation required under Section 7(a) above, which
Company shall reasonably endeavor to schedule at times not conflicting
with the reasonable requirements of any third party with whom Employee
has a business relationship that provides remuneration to Employee.
Employee shall not unreasonably withhold his availability for such
cooperation.
8. Nondisparagement and Confidentiality.
(a) Employee agrees not to disclose, divulge, discuss, copy or
otherwise use or suffer to be used in any manner, in competition with,
or contrary to the interests of, the Company or any of the Company's
subsidiaries, affiliates or related entities, the Company's customer
lists, product research, pricing information, trade secrets, or any
other information that would provide the Company's competitors with
information about the Company's methods, goals, or customers, it being
acknowledged by Employee that all such information regarding the
Company's business and the Company's subsidiaries, affiliates, and
related entities compiled by or obtained by, or furnished to, Employee
while Employee was employed by or associated with the Company, is
confidential, proprietary information and the Company's exclusive
property.
(b) Employee will not, directly or indirectly, make or cause
to be made any statements to any third parties criticizing or
disparaging the Company or commenting adversely on the character or
business reputation of the Company, except as required by law.
9. Notices. For all purposes of this Agreement except Paragraph 6 of
this Agreement, all communications provided for herein will be in writing and
will be deemed to have been duly given when delivered, addressed (a) to the
Company (to the attention of Senior Vice President, General Counsel) at its
principal executive offices located at 00 Xxxxx Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxx, Xxxx 00000, and (b) to Employee, at Employee's last known principal
residence, or to such other address as any party may have furnished to the other
in writing and in accordance herewith. Notices of change of address will be
effective only upon receipt.
10. Construction. This Agreement is governed by and will be construed
in accordance with the laws of the State of Ohio.
11. Breach. Employee agrees that if Employee violates any part of this
Agreement, Employee will be responsible for all costs incurred by the Company
that flow from that violation, including the Company's legal fees and other
costs associated with any legal action that arises from that violation. Employee
also agrees that if Employee violates any part of this Agreement, Employee would
not be entitled to the severance benefits provided for herein and will
immediately repay to the Company the severance benefits previously paid by the
Company to Employee under this Agreement.
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12. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and will
supersede all prior verbal or written agreements, covenants, communications,
understandings, commitments, representations, or warranties, whether oral or
written, by any party hereto of a party's representatives pertaining to such
subject matter.
13. Validity. The invalidity or unenforceability of any provision of
this Agreement will not affect the validity and enforceability of any other
provisions of this Agreement, which will remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed multiple copies of this
Agreement, each of which shall constitute an original, but all of which, when
taken together, will constitute the same document.
/s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
Date: January 21, 1999
LEXFORD RESIDENTIAL TRUST
By: /s/ XXXXXX X. XXX
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Xxxxxx X. Xxx
Executive Vice President
Date: January 13, 1999
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