SEPARATION AND RELEASE AGREEMENT
Exhibit
10.1
THIS SEPARATION AND RELEASE
AGREEMENT (this “Agreement”)
dated February 1, 2010, is by and between Xxxxx X. Xxxxxxxx (“Executive”)
and Education Realty Trust, Inc., a Maryland corporation (the “Company”).
WHEREAS, Executive’s
employment with the Company has been terminated, effective as of February 12,
2010 (the termination date) pursuant to that certain Amended and Restated
Employment Agreement between the Company and Executive, dated as of October 29,
2008 (the “Employment
Agreement”);
NOW, THEREFORE, in
consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Termination of
Employment. Executive and the Company hereby agree that
Executive’s employment with the Company will be terminated pursuant to Section 5(h) of the
Employment Agreement on February 12, 2010. To the extent he continues
to hold any such offices or directorships, Executive hereby resigns all offices
and directorships he holds with the Company and any and all of the Company’s
subsidiaries and affiliates, effective as of the termination
date. Capitalized terms used herein and not otherwise defined shall
have the same meanings as in the Employment Agreement.
2. Release by
Executive. Executive, on his own behalf and on behalf of his
heirs, successors and assigns, hereby irrevocably and unconditionally releases
and forever discharges the Company and its current and former subsidiaries and
other affiliates, and their current and former agents, employees,
representatives, officers, directors, stockholders, trustees and attorneys (in
both their official and personal capacities), and each of their predecessors,
successors, assigns and/or heirs (all of which are hereafter collectively
referred to as the “Released
Parties”) from any and all debts, liabilities, claims, demands, actions
or causes of action, suits, judgments or controversies of any kind whatsoever
(except as set forth below) arising from Executive’s relationship (including
without limitation as a stockholder) to, employment with or service as an
employee, officer, director, or manager of the Company or its subsidiaries and
affiliates (collectively, the “Claims”)
against the Released Parties, that now exist or that may arise in the future out
of any matter, transaction or event occurring prior to or on the termination
date, including without limitation, any claims of breach of contract or for
severance or other termination pay, or claims of harassment or discrimination
(for example, on the basis of age, sex, race, handicap, disability, religion,
color or national origin) under any federal, state or local law, rule or
regulation, including, but not limited to, the Age Discrimination in Employment
Act of 1967, 29 U.S.C. §621, et seq. Except
as set forth below, Executive further agrees not to file or bring any claim,
suit, civil action, complaint, arbitration or administrative action (any of the
foregoing, an “Action”)
in any city, state or federal court or agency or arbitration tribunal with
respect to any Claim against any of the Released Parties or (except as may be
required by law) assist any other person or entity with any Action against any
of the Released Parties. Notwithstanding anything to the contrary
contained in this Agreement, Executive does not release any of the Released
Parties and shall not be prohibited from filing or bringing an Action with
respect to any right Executive otherwise may have now or in the future to (i)
receive distributions or dividends made in respect of the Company’s common stock
or units of limited partnership interest in Education Realty Operating
Partnership, LP; (ii) be indemnified by the Company under the Second Articles of
Amendment and Restatement or Amended and Restated Bylaws of the Company (as the
same are currently in effect), any resolution adopted by the Board of Directors
of the Company, or any other separate written agreement or instrument requiring
the Company to indemnify Executive; (iii) receive workers’ compensation claims;
or (iv) vested benefits payable under retirement and other employee benefit
plans covering Executive (which benefits shall be governed by the terms and
provisions of the applicable plan).
3. Severance
Compensation. In consideration of Executive’s execution and
non-revocation of this Agreement and pursuant to Section 6(b) of the
Employment Agreement, Executive shall be entitled to receive the payments set
forth in this Section 3, subject to the terms and provisions of this Agreement.
Except as set forth in this Section 3, the Company shall have no other
obligations to Executive.
(a) Accrued Salary, Vacation,
Bonus, Expense Reimbursement and Health Insurance. The Company
will pay Executive: (i) all accrued but unpaid wages through the termination
date, based on Executive’s current Base Salary; (ii) all accrued but
unpaid vacation through the termination date ($12,337.10), based on Executive’s
then current Base Salary; (iii) all approved, but unreimbursed, business
expenses, provided that a request for reimbursement of business expenses is
submitted in accordance with the Company’s policies and submitted within five
(5) business days of Executive’s termination date; and (iv) all earned and
accrued but unpaid bonuses. Executive’s benefits under the Company’s major
medical health group plan will terminate on the termination date and the Company
will pay any COBRA continuation coverage premiums required for the coverage of
Executive and Executive’s eligible dependents under the Company’s major medical
group health plan for a period of up to eighteen (18) months (or, if less, the
period that Executive and Executive’s eligible dependents are entitled to under
the applicable provisions of COBRA), provided, however, that Executive and
Executive’s eligible dependents shall be solely responsible for any requirements
which must be satisfied or actions that must be taken in order to obtain such
COBRA continuation coverage other than the payment of COBRA
premiums.
(b) Severance
Payment. The Company will continue to pay Executive’s current
Base Salary of $200,940.16 for a period of twelve (12) months (the “Severance
Payment”). Payment of the Severance Payment shall commence on
the sixtieth (60th) day following the Executive’s termination date and will be
paid over a period of twelve (12) months, in accordance with the Company’s
regular payroll practices, provided, that Executive shall have executed this
Agreement and all statutory or other revocation periods shall have expired prior
to such date (the “Severance
Period”).
(c) No Other
Payments. Executive acknowledges that this is the correct
amount of severance compensation owed to Executive under the Employment
Agreement. Executive acknowledges that Executive has received all accrued
obligations to which Executive is entitled under the Employment
Agreement. Executive acknowledges that no other promise or agreements
of any kind have been made to Executive or with Executive by any person or
entity whatsoever to cause Executive to sign this
Agreement. Executive further acknowledges and agrees that the
payments or benefits that may be due under this Section 3 shall constitute full
accord and satisfaction of all obligations, including without limitation any and
all severance obligations, in connection with Executive’s
employment.
(d) Conditions to Severance
Payment. In connection with the Separation Conditions set
forth in Section
6(c) of the Employment Agreement, Executive acknowledges that he would
not be entitled to receive payments or benefits that may be due under this
Section 3 but for Executive’s execution and non-revocation of this Agreement and
his compliance with the restrictive covenants set forth in Section 8 of the
Employment Agreement and any and all post-termination obligations set forth in
the Employment Agreement and in this Agreement. Notwithstanding the
foregoing, the Executive and the Company hereby agree that for purposes of
Executive’s continued compliance with the post-termination obligations set forth
in the Employment Agreement, references in Section 8(f)-(i) of
the Employment Agreement to the “Restricted Period” (Non-Competition; Non-Solicitation of
Customers; Non-Recruitment of Employees; and Post-Employment Disclosure)
shall mean the period of time encompassing the Severance Period.
4. Disclaimer of
Liability. Executive acknowledges that this Agreement shall
not in any way be construed as an admission by Executive or any of the Released
Parties of any wrongful or illegal act against the other or any other person,
and that Executive and the Released Parties expressly disclaim any liability of
any nature whatsoever arising from or related to the subject of this
Agreement.
5. COMPETENCY. EXECUTIVE
ACKNOWLEDGES THE FOLLOWING:
|
|
a.
|
THAT
HE FULLY COMPREHENDS AND UNDERSTANDS ALL OF THE TERMS OF THIS AGREEMENT
AND THEIR LEGAL EFFECTS;
|
|
|
b.
|
THAT
HE IS COMPETENT TO EXECUTE THIS
AGREEMENT;
|
|
|
c.
|
THAT
IT IS EXECUTED KNOWINGLY AND VOLUNTARILY AND WITHOUT RELIANCE UPON ANY
STATEMENT OR REPRESENTATION OF ANY RELEASED PARTY OR ITS
REPRESENTATIVES;
|
|
|
d.
|
THAT
HE HAS BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY BEFORE
EXECUTING THIS AGREEMENT AND THAT HE HAS HAD THE OPPORTUNITY TO CONSULT
WITH AN ATTORNEY OF HIS CHOICE REGARDING THIS
AGREEMENT;
|
|
|
e.
|
THAT
EXECUTIVE DOES NOT WAIVE RIGHTS OR CLAIMS THAT MAY ARISE AFTER THE DATE
THIS AGREEMENT IS EXECUTED;
|
|
|
f.
|
THAT
EXECUTIVE WAIVES RIGHTS OR CLAIMS UNDER THIS AGREEMENT ONLY IN EXCHANGE
FOR CONSIDERATION IN ADDITION TO ANYTHING OF VALUE TO WHICH THE EXECUTIVE
WAS ALREADY ENTITLED;
|
|
|
g.
|
THAT
HE HAS HAD A PERIOD OF 21 DAYS WITHIN WHICH TO CONSIDER THIS AGREEMENT;
AND
|
|
|
h.
|
THAT
FOR A PERIOD OF SEVEN DAYS FOLLOWING THE EXECUTION OF THIS AGREEMENT,
EXECUTIVE MAY REVOKE THIS AGREEMENT AND IT SHALL NOT BECOME EFFECTIVE OR
ENFORCEABLE UNTIL THE SEVEN-DAY PERIOD HAS EXPIRED OR SUCH LATER DATE AS
PROVIDED FOR HEREIN.
|
6. Parties in
Interest. This Agreement is for the benefit of the Released
Parties and shall be binding upon Executive and his representatives and
heirs.
7. Governing
Law. This Agreement and the rights and obligations of
Executive hereunder shall be governed by and construed and enforced in
accordance with the substantive laws of the State of Tennessee.
8. Amendment. This
Agreement may not be clarified, modified, changed or amended except in writing
and signed by Executive and the Company or a successor-in-interest of the
Company.
9. Enforcement of
Laws. Nothing in this Agreement affects the rights and
responsibilities of the Equal Employment Opportunity Commission (the “Commission”)
to enforce the anti-discrimination laws, and this waiver does not affect
Executive’s right to file a charge or participate in an investigation or
proceeding with the Commission. However, Executive waives any rights
or claims, known or unknown, to participate in any recovery under any proceeding
or investigation by the Commission or any state or local commission concerned
with the enforcement of anti-discrimination laws.
10. Severability. If
any provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision, and there shall be
added automatically as part of this Agreement a provision as similar in its
terms to such illegal, invalid or unenforceable provision as may be possible and
be legal, valid and enforceable.
[Signature Page
Follows]
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year first above
written.
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | ||
| Title: | Chief Executive Officer | ||
| Date: | February 1, 2010 | ||
|
Executive
|
|||
| /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx X. Xxxxxxxx, individually | |||
Subscribed
and sworn to before me, the undersigned Notary Public, this 2nd day of February,
2010.
|
(SEAL)
|
/s/ Xxxxxxx X. Xxxxxxxx | ||||
| Notary Public | |||||
| My Commission expires: | December 16, 2003 |
