AGREEMENT
AGREEMENT
THIS AGREEMENT (the “Agreement”) is made and entered into by and between CONSOLIDATED TOMOKA LAND CO. (“Consolidated Tomoka” or the “Company”), the address of which is 0000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxx 00000, and XXXXXXX X. XXXXXX (“Xx. XxXxxx” or the “employee”), whose address is 0 Xxxxx Xxxxxxxxxxx Xxxx, Xxxxxx Xxxxx, XX 00000, and his heirs, beneficiaries and personal representatives.
RECITALS
WHEREAS, Xx. XxXxxx is currently employed by Consolidated Tomoka as its Chief Executive Officer (CEO); and
WHEREAS, Xx. XxXxxx desires to retire and as a result voluntarily resign from his employment with Consolidated Tomoka on the terms and provisions provided herein; and
WHEREAS, Consolidated Tomoka is willing for Xx. XxXxxx to retire and resign from his employment as CEO of Consolidated Tomoka on the terms and provisions provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and promises of the parties, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as set forth below.
1. Employment and Retirement of Employee.
(a) Employment and Retirement of Employee; Payment of Early Retirement Incentive. By execution of this Agreement, Xx. XxXxxx irrevocably elects to retire and to resign from the employment of Consolidated Tomoka and to relinquish the positions of Chief Executive Officer and President, and to retire from all other offices, titles, and directorships he may hold with Consolidated Tomoka’s subsidiaries, all effective December 31, 2011 (“Effective Date of Retirement”). (Notwithstanding, in the event a new CEO is hired, then at the request of the Board of Directors (the “Board”) in order to effect an orderly transition, Xx. XxXxxx shall relinquish the titles of President and CEO on a date specified by the Board.) Between the execution of this Agreement and the Effective Date of Retirement, Xx. XxXxxx will continue to perform the duties and responsibilities associated with his position as CEO until his replacement is hired and his or her term of employment begins (including, without limitation, providing transition assistance for any newly hired CEO, acting as qualifying agent for the Company’s brokerage and construction licenses, and such other duties and responsibilities as may be assigned to him by the board of directors of Consolidated Tomoka commensurate with his position), and be paid his current annual salary ($294,816) and receive his current benefits through the “Effective Date of Retirement”. Notwithstanding the foregoing, Xx. XxXxxx will not participate in any stock option grants for the year 2011 and thereafter, nor will he participate in the 2011 cash bonus plan. Under the terms set forth in this Agreement and in consideration of Xx. XxXxxx’x commitments set forth below, Consolidated Tomoka shall pay to Xx. XxXxxx as an early retirement incentive the sum of One Hundred Fifty-eight Thousand Seven Hundred Forty-seven Dollars and Twelve cents ($158,747.12) plus reimbursement for any unused vacation days, on December 29, 2011 (“Early Retirement Incentive”). From these gross wages, Consolidated Tomoka will make all normal and required withholdings and deductions and such other deductions that Xx. XxXxxx may request. The Early Retirement Incentive will be included as wages in the W-2 issued by Consolidated Tomoka for Xx. XxXxxx for tax year 2011. In addition, Consolidated Tomoka agrees that it will pay the total monthly premium for continued major medical/hospitalization insurance coverage for Xx. XxXxxx pursuant to COBRA for the eight (8) month period beginning January 1, 2012, and ending August 31, 2012; provided, however, Xx. XxXxxx timely elects continuation coverage under COBRA. In addition, Consolidated Tomoka will transfer to Xx. XxXxxx title to his company furnished automobile on the Effective Date of Retirement. During the remainder of Xx. XxXxxx’x employment, his employment may be terminated pursuant to Section 3 below.
(b) Option to Extend Date of Retirement. At the option (“Option”) of Consolidated Tomoka, Consolidated Tomoka may extend the Effective Date of Retirement and continue the employ of Xx. XxXxxx to June 30, 2012 (which date should the Option be exercised is hereafter referred to as the Effective Date of Retirement), if necessary to facilitate an orderly transition to a new chief executive officer. Consolidated Tomoka must exercise the Option not later than December 1, 2011, by written notice to Xx. XxXxxx. All terms, conditions, and benefits of Xx. XxXxxx’x employment (including but not limited to the payment due on December 29, 2011) shall continue unchanged during any extension of Xx. XxXxxx’x employment with Consolidated Tomoka pursuant to any exercise of the Option.
2. Retention as Consultant.
(a) Retention as Consultant and Consulting Term. Subject to the terms and conditions set forth herein, Consolidated Tomoka agrees to retain Xx. XxXxxx to render consulting and strategic advisory services (“Services”) in connection with the business, prospects, relationships, and financial and regulatory compliance initiatives of Consolidated Tomoka as reasonably requested by Consolidated Tomoka from time to time by its Board Chairman and/or Chief Executive Officer, and Xx. XxXxxx hereby agrees to accept such engagement. The term of Xx. XxXxxx’x engagement as a consultant (the “Consulting Term”) shall commence on the Effective Date of Retirement and shall continue until (i) the twelve (12) month anniversary of the Effective Date of Retirement, or (ii) terminated pursuant to Section 3 below.
(b) Performance. During the Consulting Term, Xx. XxXxxx will perform the Services in a professional, competent and ethical manner. It is the parties’ intent that Xx. XxXxxx average thirty (30) hours monthly in the performance of such services, however, in no event shall he exceed 360 hours in the aggregate during the Consulting Term. Xx. XxXxxx may render the Services in any manner that does not interfere with his ability to effectively perform the Services, including, without limitation, via telephone, email or at the offices of Consolidated Tomoka. Xx. XxXxxx’x engagement is non exclusive and he may pursue other business interests that do not interfere with his ability to perform the Services or violate any ethical obligations owed to Consolidated Tomoka. Consolidated Tomoka and Xx. XxXxxx specifically intend and agree that his engagement as a consultant be in the nature of an independent contractor relationship.
(c) Compensation. In consideration for the Services and other covenants and obligations of Xx. XxXxxx hereunder, Consolidated Tomoka shall pay Xx. XxXxxx a consultancy fee during the Consulting Term equal to $12,500 monthly payable in advance on the first business day of each calendar month. Except as set forth in 2(d) or in writing between the parties, each of Consolidated Tomoka and Xx. XxXxxx shall bear their own costs and expenses in performing their obligations under this section of this Agreement. As Xx. XxXxxx will be an independent contractor during the Consulting Term, he will not be eligible to receive any Company provided benefits.
(d) Expenses. Consolidated Tomoka will reimburse Xx. XxXxxx for all reasonable costs and expenses incurred in rendering the Services in accordance with Consolidated Tomoka’s standard reimbursement policies.
(e) Tax Obligations. Xx. XxXxxx, as an Independent Contractor shall be solely responsible for all income and other tax liabilities or obligations resulting from the Services rendered pursuant to this Agreement and will be issued a 1099 tax form.
3. Termination of Employment or Consulting Term.
(a) Termination for Cause. Xx. XxXxxx’x employment or the Consulting Term may be terminated at any time by Consolidated Tomoka with Cause upon written notice of termination delivered to Xx. XxXxxx. For purposes of this Agreement, “Cause” shall mean:
(i) Xx. XxXxxx’x arrest or conviction for, plea of nolo contendere to, or admission of the commission of, any act of fraud, misappropriation, or embezzlement, or a criminal felony involving dishonesty or moral turpitude; or
(ii) a breach by Xx. XxXxxx of any material provision of this Agreement provided Xx. XxXxxx is given reasonable notice of, and a reasonable opportunity to cure, any such breach; or
(iii) any act or intentional omission by Xx. XxXxxx involving dishonesty or moral turpitude; or
(iv) any act or intentional omission by Xx. XxXxxx which would cause Consolidated Tomoka significant reputational injury, such as defamation, libel, and slander.
(b) Death or Disability of Xx. XxXxxx. This Agreement shall terminate automatically upon the death of Xx. XxXxxx or upon Xx. XxXxxx becoming disabled such that Xx. XxXxxx cannot perform the essential functions of his employment position or the essential requirements of the consultant Services with or without reasonable accommodation. Nothing contained in this subsection shall affect Xx. XxXxxx’x eligibility for employee disability benefits under an applicable employee disability insurance plan.
4. Waiver and Release. Xx. XxXxxx hereby waives, and releases Consolidated Tomoka (including each of its past and present related entities including affiliated associations, parent companies, employee benefit plans, including the 401(k) Plan, insurers, subcontractors, successors and assigns, and any and all of its and their past, current, and future officers, directors, employees, and agents and all persons acting by, through, under, or in concert with any of them, both individually and as agents or representatives of these entities) from, all claims, rights, administrative charges, and causes of action, both known and unknown, in law or in equity, of any kind whatsoever, that Xx. XxXxxx has or could have made against Consolidated Tomoka through the date of signing this Agreement. Xx. XxXxxx waives, and releases Consolidated Tomoka from, all claims, rights, charges and causes of action relating to or arising out of Xx. XxXxxx’x employment with, conditions of employment with, compensation by, or separation and/or termination of employment from Consolidated Tomoka, including, without limitation, any claims, rights, charges or causes of action arising under Title VII of the Civil Rights Act of 1964, as amended; the Age Discrimination in Employment Act of 1967, as amended; the Older Workers Benefit Protection Act of 1990; Executive Order Nos. 11246 and 11478; the Equal Pay Act of 1963, as amended; the Retirement Income Security Act of 1974, as amended; the Rehabilitation Act of 1973, as amended; the Americans With Disabilities Act of 1990, as amended; the Family and Medical Leave Act of 1993; the Fair Labor Standards Act of 1938, as amended; the Occupational Safety and Health Act of 1970, as amended; the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), as amended; the Florida Civil Rights Act of 1992, as amended; any Florida or federal Whistleblower laws; Florida Statutes, Sec.112.3187, 440.205, and 448.102 and any other federal or state law or local ordinance, including any suit in tort (including negligence and personal injury) or contract (whether oral, written or implied), or any other common law or equitable basis of action, except for any claim which may not lawfully be waived in this manner or a claim based upon any obligation of Consolidated Tomoka under this Agreement.
5. Mutual Non-Disparagement. Except as required by law, Xx. XxXxxx and Consolidated Tomoka agree to refrain from expressing (or causing others to express) to any third party, any derogatory or negative opinions, comments, statements, or any other action of such a nature concerning Xx. XxXxxx and Consolidated Tomoka, including to friends, current or former employees, elected or appointed government officials, business associates, members of any bar association, customers, the press, or vendors or suppliers of Consolidated Tomoka.
6. Survival of Non-Disclosure Agreement. Notwithstanding anything to the contrary herein, the terms, provisions and obligations set forth in that certain Consolidated Tomoka Land Co. Proprietary Model Non Disclosure Agreement dated May 10, 2010, between the Company and Xx. XxXxxx shall survive the execution and delivery of this Agreement and the consummation of the transactions described herein.
7. Notices. All notices and other communications given or made pursuant hereto shall be in writing and delivered by hand or sent by registered or certified mail (postage prepaid, return receipt requested) or by nationally recognized overnight air courier service and shall be deemed to have been duly given or made as of the date delivered if delivered personally, or if mailed, on the third business day after mailing (on the first business day after mailing in the case of a nationally recognized overnight air courier service) to the parties at the following:
If to Consolidated Tomoka:
Consolidated-Tomoka Land Co.
0000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
If to Xx. XxXxxx:
Xxxxxxx X. XxXxxx
0 Xxxxx Xxxxxxxxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
8. Severability. If a court of competent jurisdiction invalidates any provision of this Agreement, then all of the remaining provisions of this Agreement shall continue unabated and in full force and effect.
9. Entire Agreement. This Agreement contains the entire understanding and agreement between the parties and shall not be modified or superseded except in writing by the parties to this Agreement. Except as specifically provided herein, this Agreement supersedes and renders null and void any previous agreements or contracts, whether written or oral, between Xx. XxXxxx and Consolidated Tomoka but shall not serve to waive or modify any vested rights or benefits associated with his employment by Consolidated Tomoka (including but not limited to his 401(k) account and any vested benefits under Consolidated Tomoka’s defined benefit or deferred compensation plans or any stock option grants received by Xx. XxXxxx prior to the date of the execution of this Agreement by Xx. XxXxxx). Consolidated Tomoka and Xx. XxXxxx specifically recognize that Xx. XxXxxx is a participant in Consolidated-Tomoka Land Co. Deferred Compensation Plan for Officers and Key Employees and that he is not waiving, and is entitled to, whatever benefits that Plan provides for him as an eligible employee.
10. Governing Law. The laws of the State of Florida shall govern this Agreement.
11. Arbitration; Attorney’s Fees and Costs. In the event a dispute arises out of this Agreement, including but not limited to any alleged termination for cause, the parties agree to resolve all disputes through final and binding arbitration in Volusia County, Florida, in accordance with the Rules of the American Arbitration Association. The prevailing party in any action to enforce or construe the terms and provisions of this Agreement will be entitled to an award of reasonable attorneys’ fees and costs from the non prevailing party.
12. Opportunity to Consider and Confer. Xx. XxXxxx acknowledges that he:
(a) has had the opportunity to, and is hereby specifically advised to, consult with an attorney of his choice;
(b) has been given a reasonable period of up to twenty-one (21) calendar days in which to consider signing this Agreement;
(c) fully understands and is in complete agreement with all of the terms of this Agreement;
(d) has signed this Agreement freely and voluntarily;
(e) has not relied on any representation or statement made by Consolidated Tomoka or any of Consolidated Tomoka’s agents or employees, except those set forth in this Agreement.
(f) This Agreement may be revoked by either party within seven (7) days after signing by sending a notice of revocation in the manner required by Section 7.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Consolidated Tomoka and Xx. XxXxxx hereby execute this Agreement by signing below voluntarily and with full knowledge of the significance of all of its terms and provisions.
CONSOLIDATED-TOMOKA LAND CO.
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Chairman of the Board
/s/Xxxxx X. Xxxxx
Witness
By: /s/Xxxxxxx X. XxXxxx
Xxxxxxx X. XxXxxx
/s/Xxxxxx X. Xxxxxx
Witness
Signed and effective as of February 8, 2011
