EXHIBIT 10.10
CONFIDENTIAL
December 17, 2004
Xx. Xxxxx X. Xxxx
The Town & Country Trust
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
RE: SEPARATION AGREEMENT AND GENERAL RELEASE
Dear Xxxxx :
This letter agreement (the "Agreement"), when signed by you, will
constitute a binding agreement between us with respect to the terms of your
separation from employment with The Town and Country Trust (the "Company"). You
are advised to consult with an attorney prior to signing this Agreement. By
signing this Agreement, you will receive significant, additional benefits that
you would not otherwise be entitled, and you also will be waiving important
legal rights.
1. You acknowledge that you have resigned from your executive position
with the Company effective November 19, 2004 (the "Termination Date").
2. You acknowledge that you have been paid all of your earned salary
and accrued vacation through the Termination Date, and that the Company has
fully reimbursed all of your business expenses through such date.
3. In return for your promises in this Agreement, provided that you
sign the Agreement, do not revoke the Agreement, and abide by its terms, the
Company will provide you with the following separation benefits (the "Separation
Benefit") commencing with the Company's first regular pay date following your
execution of this Agreement and continuing as stated below unless you have
revoked the Agreement as set forth herein:
(a) The Company will continue to pay to you your salary, at the
rate of $265,000 per annum, payable bi-weekly, less deductions
and withholdings required or permitted by law, through
November 19, 2006.
Xx. Xxxxx X. Xxxx
December 17, 2004
Page 2
(b) The Company will pay to you a lump sum bonus payment in the
amount of $110,000 on the date that it normally pays bonuses
(on or about January 31, 2005), less deductions and
withholdings required or permitted by law, for the year ending
December 31, 2004.
(c) In consideration of the immediate redemption of 8,334 unvested
stock options granted to you under the Company's Stock Option
Plan (which are scheduled to vest in January 2005), t he
Company will pay to you a lump sum bonus payment equal to the
difference between the exercise price of such options and the
stock price of such options on such date as such options would
have vested under the terms of the Company's Stock Option Plan
(January 31, 2005). This lump sum bonus payment will be made
to you by the Company within a reasonable time-frame following
the date upon which such options would have vested.
(d) The Company agrees to forgive one loan that you have with the
Company with an outstanding balance of $31,603.05 as of
February 2004. With regard to a second loan you have with the
Company with a current balance of $32,071.17, the Company
agrees to offset the total balance of this second loan against
your lump sum bonus payment for calendar year 2004, as set
forth in paragraph 3(b) above.
(e) The Company agrees to waive any vesting requirements for 5,500
shares of restricted stock and that the shares of restricted
stock will vest as of the Termination Date.
(f) The Company will continue to make contributions on your behalf
for group heath and dental insurance through the earliest of
the following dates (i) 18 months after Termination date, or
(ii) the date on which you commence employment with a new
employer that has heath insurance benefits. In the event that
you have not begun working for an employer with health
insurance benefits within 18 months after your Termination
Date, the Company will pay you, at such time, a lump sum
amount equivalent to the Company's COBRA premiums for an
additional 6 months.
(g) You agree that the split-dollar life insurance policy ("SERP")
that the Company maintains on your behalf will be governed by
the Agreements between you and the Company that are already in
place regarding the same, except that the time-frame for your
repayment of life insurance premiums paid on your behalf by
the Company will be extended until you reach age 65 and you
will be charged interest at a yearly rate of 4.68% for the
term of such repayment.
Xx. Xxxxx X. Xxxx
December 17, 2004
Page 3
(h) The Company will continue to permit your use of the Company
automobile in your possession, at your sole operating expense
(such cost to include gas, repairs and maintenance, but it is
understood and agreed that while the automobile is titled in
the Company's name, the Company will continue to maintain
fleet insurance on the automobile at the same levels it
currently has), and the Company will transfer the title of
that automobile to you, without cost to you, as of November
19, 2006.
(i) You will be permitted to retain possession of your cell phone
and the Company-owned computer presently in your home.
(j) The Company will provide you with outplacement services up
through November 19, 2005. These outplacement services must be
mutually agreeable to both you and the Company.
(k) The Company agrees to reimburse you for legal and financial
consulting fees incurred with respect to the review and
negotiation of this Agreement, up to a limit of $10,000. The
Company shall not reimburse you for any attorneys' fees
incurred in connection with contesting this Agreement.
4. In consideration for the Separation Benefit and other benefits
contained in this Agreement, on behalf of yourself and your heirs, family
members, executors, administrators, successors and assigns, you hereby fully and
forever release and discharge the Company (which for purposes of such waiver,
release and discharge is deemed to include its present and former officers,
directors, employees, agents, investors, shareholders, administrators,
representatives, affiliates, divisions, subsidiaries, parent corporations,
predecessor and successor corporations and assigns) from any and all liability
for any claim, duty, obligation, cause of action or damages (collectively
"claims"), whether presently known or unknown, suspected or unsuspected, that
you may possess arising from any omission, act or fact arising out of your
employment with the Company or the termination thereof, that has occurred from
the beginning of time up to and including the date you sign this Agreement. Such
released claims include, but are not limited to:
(a) any claims for wages, separation pay, severance pay, bonuses,
accrued vacation, personal days, holidays, stock, stock
options, attorneys' fees, costs or expenses;
(b) any other claims arising out of your employment with the
Company or the termination thereof;
(c) any claims arising under the common law including, without
limitation, all claims pursuant to public policy or tort law;
Xx. Xxxxx X. Xxxx
December 17, 2004
Page 4
(d) all claims arising under any agreement, contract (express or
implied), understanding or promise (whether oral or written)
between you and the Company;
(e) any claims arising under any federal, state or local
constitution, statute, regulation or ordinance, each as
amended to the date hereof, including, without limitation,
Title VII of the Civil Rights Act of 1964; the Civil Rights
Act of 1991; the Age Discrimination in Employment Act of 1967;
the Americans with Disabilities Act of 1990; the Equal Pay
Act; the Family and Medical Leave Act of 1993; the Maryland
Fair Employment Practices Act; and
(f) any claim for any other loss or damage.
5. You acknowledge that the Separation Benefit provided to you under
this Agreement exceeds any payment, benefit and/or other thing of value to which
you might otherwise be entitled pursuant to any policy, plan or procedure of the
Company or pursuant to any prior agreement or contract with the Company. You
specifically acknowledge that among the rights and claims against the Company
that you are waiving are all your rights and claims under the Age Discrimination
in Employment Act of 1967, as amended. You understand that you are not waiving
any rights or claims that arise after the effective date of this Agreement and
that you are not releasing the Company with respect to any rights you may have
under any employee benefit plans as defined in Section 3(3) of ERISA.
6. The Company agrees to release any and all claims that it may possess
against you as of this date, provided that you sign this Agreement, do not
revoke it, and abide by its terms. The Company further hereby releases, waives,
discharges and gives up any and all rights which it may have against you arising
out of your employment with the Company or termination therefrom or during your
tenure and in any of your roles (or prior roles) or officer positions (or former
officer positions) or the circumstances related thereto or by reason of any
other matter, cause or thing whatsoever from the first date of your employment
or holding any such office or position to the Termination Date.
7. Except for the purpose of seeking enforcement of the terms of this
Agreement, you agree that you have not and will not institute any charges,
claims, administrative proceedings, arbitration proceedings or actions against
the Company regarding any matter that has been released pursuant to paragraph 4.
If you violate this Agreement by filing or instituting any such charges, claims,
administrative proceedings, arbitration proceedings or actions, you agree to pay
all costs and expenses of defending against the suit incurred by the Company,
including its reasonable attorneys' fees, disbursements and costs.
Xx. Xxxxx X. Xxxx
December 17, 2004
Page 5
8. You agree that you will not, unless required by law or authorized in
writing by an officer of the Company, talk about, write about or otherwise
publicize the terms of this Agreement, the benefits being paid under it or the
fact of their payment, except that this information may be disclosed to your
respective family members, attorneys, accountants or other professional advisors
to whom disclosure must be made in order for them to render professional
services to you. Such attorneys, accountants or other professional advisors
will, however, be instructed to maintain the confidentiality of this
information. The Company agrees that it will not disclose internally or
externally the existence, terms and conditions of this Agreement, the payments
to be made to you as described herein or the fact of their payment, except that
it may disclose such information to employees, directors or agents of the
Company who have a business need to know such information and the Company
retains sole discretion to determine the content of any disclosure that is
required of the Company by law or regulation. Notwithstanding the foregoing, you
and the Company agree that this Agreement may be used as evidence in any
proceeding, administrative, judicial, arbitral or otherwise, relating to the
enforcement of this Agreement.
9. You further agree that you will not, at any time, orally or in
writing, disparage, denigrate or defame the Company, or any subsidiary, parent
corporation or affiliate of the Company, their respective products, services or
business conduct, or otherwise impugn the reputation of the Company, or any
subsidiary or affiliate of the Company, or that of any of their respective
directors, officers, affiliates, agents, employees or representatives. The
Company agrees that it will not, orally or in writing, disparage, denigrate or
defame you, or otherwise impugn your reputation.
10. You agree to direct any inquiries regarding the termination of your
employment to Xxxxxx Xxxxxxxxx, who will give you a positive recommendation
regarding your employment performance, character and otherwise provide the dates
of your employment, positions and compensation. For any inquires the Company
receives regarding the termination of your employment, the Company agrees to
refer any inquiries to Xxxxxx Xxxxxxxxx, who will give you a positive
recommendation regarding your employment performance, character and otherwise
provide the dates of your employment, positions and compensation.
11. You recognize and acknowledge that the Company has expended
considerable resources in the acquisition, development and accumulation of
confidential information, trade secrets and proprietary information concerning
its business operations. You further recognize and acknowledge that by reason of
your employment with the Company you were in a confidential relationship with
the Company and had access to its confidential information, trade secrets and
proprietary information. Accordingly, you agree as follows:
(a) You agree that you will not use or disclose to any third
party, in any manner whatsoever, whether created by you or
obtained from the Company (or any subsidiary or affiliate
thereof) or third parties, any confidential information, trade
secrets or proprietary information relating to your employment
with the Company, the operations of the Company (or any
subsidiary or affiliate thereof) (including, without
limitation, marketing and sales plans, financial data and
Xx. Xxxxx X. Xxxx
December 17, 2004
Page 6
reports, business plans and employee information), or
confidential information pertaining to any business
relationships of the Company (or any subsidiary, parent
corporation or affiliate thereof).
(b) Except for the benefits and property enumerated in paragraph 3
of this Agreement, you agree that you will immediately return
to the Company (i) all property of the Company (or any
subsidiary or affiliate thereof) in your possession or under
your control, including, without limitation, computer hardware
and software, computer data files (whether in tape or diskette
form) and computer system access codes, and (ii) all
merchandising programs, memoranda, notes, plans, records,
reports, financial statements, employee files, prospective
employee resumes, correspondence (both intra-company and with
outside parties) and other documents and data (and all copies
thereof) relating to the business of the Company (or any
subsidiary or affiliate thereof), whether created by you or
obtained from the Company (or any subsidiary or affiliate
thereof) or third parties, which you have in your possession
or under your control.
12. You acknowledge that your obligations set forth in this Agreement
are reasonable and necessary for the protection of the Company and that the
Company may be irrevocably damaged if such obligations are not specifically
enforced. Accordingly, you agree that, in addition to any other relief to which
the Company may be entitled in the form of actual or punitive damages, the
Company shall be entitled to seek and obtain injunctive relief from a court of
competent jurisdiction for the purpose of restraining you from any actual or
threatened breach of such obligations. It is further agreed that, in case of
your breach or threatened breach of any of such obligations, the Company shall
have no further liability to make any payments to you which would otherwise be
due and payable hereunder, shall be entitled to recover from you any benefit
paid under this Agreement, and shall be entitled to recover from you any and all
damages, losses, costs and expenses it incurs (including, without limitation,
attorneys' fees and expenses) in connection with such breach or violation (or
threat thereof) and any enforcement of the Company's rights hereunder. In the
event of any breach or threatened breach of any of the Company's obligations
under this Agreement, you shall be entitled to recover from the Company any and
all damages, losses, costs and expenses that you incur (including, without
limitation, attorneys' fees and expenses) in connection with such breach or
violation (or threat thereof) and any enforcement of your rights hereunder.
Except for the purpose of seeking enforcement of the terms of this Agreement,
the Company agrees that it has not and will not institute any charges, claims,
administrative proceedings, arbitration proceedings or actions against you
regarding any matter that has been released pursuant to this Agreement. If the
Company violates this Agreement by filing or instituting any such charges,
claims, administrative proceedings, arbitration proceedings or actions, it
agrees to pay all costs and expenses of defending against the suit incurred by
you, including it reasonable attorneys' fees, disbursements and costs.
Xx. Xxxxx X. Xxxx
December 17, 2004
Page 7
13. If, for any reason, any aspect of your obligations in this Agreement
as applied to you is determined by a court of competent jurisdiction to be
unreasonable or unenforceable against you for any reason, such obligations
shall, if possible, be modified by such court to the minimum extent necessary to
make such obligations enforceable against you.
14. This Agreement will be deemed to have been made within the State of
Maryland, and shall be interpreted, construed and enforced in accordance with
the laws of the State of Maryland applicable to agreements made and to be
performed entirely within that state, without regard to the conflicts of laws or
choice or law principles thereof. In any action to enforce the terms of this
Agreement, the parties hereby waive trial by jury, and consent and agree that
the Circuit Court for Baltimore County, Maryland and the United States District
Court for the District of Maryland each shall have personal jurisdiction and
proper venue with respect to any dispute between us.
15. Nothing in this Agreement shall be construed as an admission of any
liability by the Company, and the Company specifically disclaims any liability
to or wrongful treatment of you.
16. Except as otherwise provided in paragraph 13 hereof, if any clause
of this Agreement should ever be determined to be unenforceable, the parties
agree that the same shall not affect the remainder of this Agreement, which
shall otherwise be given full effect, without regard to the invalid clause.
17. Although you may sign this Agreement as soon as you wish, you may
take up to 21 days to decide whether to sign it. Your decision to sign this
Agreement and to accept its terms is revocable at your option within 7 days
after the date you sign it. Any revocation of this Agreement within this period
must be submitted in writing to Xxxxxx Xxxxxxxxx at the address set forth
herein. None of the Company's obligations hereunder become effective until you
sign the Agreement and the 7-day revocation period has expired. Since the
Separation Benefit and other benefits contained in this Agreement are contingent
on your execution and non-revocation of this Agreement, if you do not sign the
Agreement within 21 days or if you revoke it, the Company will not have any
obligation to provide the Separation Benefit or any other benefit within this
Agreement to you.
18. This Agreement is binding upon, and will insure to the benefit of,
you and the Company and your and its respective heirs, executors, legatees,
legal administrators, transferees, administrators, successors and assigns.
19. This Agreement may be executed in one or more counterparts,
including by facsimile signatures, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Xx. Xxxxx X. Xxxx
December 17, 2004
Page 8
20. All communications with respect hereto shall be in writing and shall
be delivered by hand, sent prepaid by express mail or sent by the United States
post office, certified, postage prepaid, return receipt requested, to the
following addresses:
If to the Company, then to:
Xxxxxx Xxxxxxxxx
The Town & Country Trust
0 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
If to you, then to:
Xx. Xxxxxx X. Xxxx
0 Xxxxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
With copy (not constituting notice) to:
Xxxxxxxxxx X. Xxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx, LLP
000 00xx Xxxxxx, X.X.
Washington, DC 20005
21. The Company represents and warrants to you that the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized and that
all necessary action required to be taken by the Company for the execution,
delivery and performance of this Agreement has been duly and effectively taken.
22. Each party hereto shall execute such additional documents, and do
such additional things, as may reasonably be requested by the other party to
effectuate the purposes of this Agreement.
23. BY SIGNING BELOW, YOU ACKNOWLEDGE THAT YOU UNDERSTAND THAT THIS
AGREEMENT CONTAINS A LEGALLY BINDING AND COMPLETE RELEASE OF ALL CLAIMS YOU MAY
HAVE AGAINST THE COMPANY AND CERTAIN OTHER PERSONS IDENTIFIED IN PARAGRAPH 4.
YOU FURTHER AGREE THAT YOU HAVE BEEN GIVEN A SUFFICIENT OPPORTUNITY TO CONSIDER
THIS AGREEMENT AND HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY OF YOUR CHOICE.
YOU ACKNOWLEDGE THAT YOU ARE SIGNING THIS AGREEMENT VOLUNTARILY, AND THAT YOU
HAVE RELIED ONLY ON THE PROMISES WRITTEN IN THIS AGREEMENT AND NOT ON ANY OTHER
PROMISE MADE BY THE COMPANY. THIS AGREEMENT MAY NOT BE MODIFIED OTHER THAN BY A
WRITING SIGNED BY BOTH OF US.
Xx. Xxxxx X. Xxxx
December 17, 2004
Page 9
Kindly sign this Agreement where indicated below, and return the original
to me. A second copy has been enclosed for your files.
Very truly yours,
The Town and Country Trust
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxxx
Chairman & CEO
AGREED TO AND ACCEPTED:
/s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
12/22/04
--------------------------------
Date
