EXHIBIT 10.9
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SEPARATION AGREEMENT AND GENERAL RELEASE
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Xxx X. Xxxxxxx ("Xxxxxxx") and Banyan Strategic Realty Trust, a
Massachusetts business trust, ("BSRT") enter into this Separation Agreement
and General Release ("Agreement") this 1st day of October, 2000.
WHEREAS, Xxxxxxx is employed by BSRT pursuant to a written employment
agreement dated as of December 31, 1998 (the "Employment Agreement") and
serves as BSRT's Vice President-Acquisitions;
WHEREAS, BSRT is in the process of marketing all, or substantially
all, of its assets for sale to third parties and does not intend to
reinvest any sale proceeds in new assets and, therefore, will no longer
require Xx. Xxxxxxx'x services;
WHEREAS, the Agreement expires on December 31, 2000 but is
automatically renewed for an additional one (1) year period unless BSRT
notifies Xxxxxxx by September 30, 2000 of its desire to terminate the
Agreement;
WHEREAS, BSRT notified Xxxxxxx on or before September 30, 2000 that
BSRT will not renew the Employment Agreement when it expires on
December 31, 2000; and
WHEREAS, although the Employment Agreement contains provisions
stating rights and obligations of the parties in connection with a decision
by BSRT not to renew the Employment Agreement, BSRT and Xxxxxxx are
desirous of altering these rights and obligations and of creating
additional rights and obligations.
NOW THEREFORE, in consideration of the mutual promises contained
herein, the parties agree as follows:
1. RECITALS. The recitals to this Agreement are incorporated by
reference into this Agreement and made a part of as though stated herein.
2. RESIGNATION. Xxxxxxx will resign from his position of First
Vice President-Acquisitions effective at 12:00 a.m. central time on October
2, 2000.
3. SEPARATION PAYMENTS. BSRT shall pay Xxxxxxx $280,804 no later
than October 1, 2000, subject to tax withholding in accordance with BSRT's
payroll practices. Xxxxxxx agrees that upon receipt of this payment, he
shall have no further right to, and BSRT shall have no further obligation
to pay Xxxxxxx, any wages, unreimbursed expenses, accrued vacation or any
other benefits except for wages and accrued vacation as of October 1, 2000
and except for reimbursable expenses which relate to expenses incurred by
Xxxxxxx in connection with performing his duties to BSRT prior to October
2, 2000 and for which he has not yet submitted the necessary documentation
or otherwise as provided herein; provided that if Xxxxxxx fails to submit
the necessary documentation for these expenses by November 15, 2000, BSRT
will have no further obligation to reimburse Xxxxxxx.
4. CONFIDENTIALITY. Each party agrees to keep the facts and terms
of this Agreement in strict confidence and to refrain from making any
negative or critical remarks about the other party; provided that nothing
herein shall prohibit Xxxxxxx from disclosing the facts and terms of this
Agreement: (a) to taxing authorities for the purpose of determining or
reporting Xxxxxxx'x income to these authorities; (b) in connection with any
regulatory, administrative or judicial proceeding, including any proceeding
to enforce the terms of this Agreement; or (c) to the extent required by
law.
Xxxxxxx also agrees as a result of his employment with BSRT he
has acquired information of a special and unique nature and value that is
not generally known to the public or to BSRT's industry regarding BSRT,
including but not limited to, business, financial and other records of BSRT
and its affiliates including its and their joint venture partners, software
programs, employee records, mailing lists, tenant lists and profiles,
prospective tenant lists, accounts receivable and payable ledgers, plans
and projections, budgets, marketing data and other similar matters (all
such information being hereinafter referred to as "Confidential
Information"). Accordingly, Xxxxxxx:
(a) will not, except as otherwise authorized by BSRT, divulge
to any person, firm, corporation, limited liability company, or
organization (hereinafter referred to as "Third Parties"), or use or cause
or authorize any Third Parties to use, the Confidential Information, except
as required by law or court order; and
(b) shall deliver, destroy or delete or cause to be
delivered, destroyed or deleted, as BSRT may request, any and all
Confidential Information, including drawings, notebooks, keys, data and
other documents and materials belonging to BSRT or its affiliates which is
in his possession or under his control relating to BSRT or its affiliates,
or the business of BSRT, regardless of the medium upon which it is stored,
and will deliver to BSRT any other property of BSRT or its affiliates which
is in his possession or under his control on or before October 1, 2000;
except that BSRT hereby transfers ownership of a "1996 Micron Notebook"
personal computer, serial number 962845-0006 which is in Xxxxxxx'x
possession to Xxxxxxx.
For purposes of this Section 4, the term Confidential
Information shall not include information which: (i) was in the public
domain at the time of execution of this Agreement; (ii) hereafter becomes
part of the public domain by publication or otherwise through no
unauthorized action of the Xxxxxxx; or (iii) was received by Xxxxxxx
through a source other than BSRT which is not under an obligation of
confidentiality to the BSRT. Xxxxxxx further acknowledges and agrees that
the Confidential Information is of great value to BSRT and its affiliates
and that the restrictions and agreements contained in this Agreement are
reasonably necessary to protect the Confidential Information and the
goodwill of BSRT's business.
5. EMPLOYMENT AGREEMENT. This Agreement shall supersede the
Employment Agreement which shall be void and of no further effect upon the
later of: (a) the execution and delivery of this Agreement by each party;
or (b) October 1, 2000.
6. RELEASE OF CLAIMS. In consideration of the separation payment
and other promises contained herein, and as a natural inducement to BSRT to
enter into this Agreement, Xxxxxxx hereby releases and forever discharges
BSRT and its officers, trustees, employees, investors, shareholders,
affiliates and agents from, and agrees not to xxx any of these parties
concerning any and all actions, liabilities, and other claims for relief
and remuneration whatsoever, arising out of, or in any way connected with
his employment by BSRT, including all matters in equity, contract, tort, or
for retaliatory discharge, or pursuant to statute, whether presently known
or unknown, suspected or unsuspected, that Xxxxxxx may possess arising from
any omissions, acts or facts existing as of October 1, 2000, including but
not limited to actions or claims under Title VII of the Civil Rights Act of
1964, as amended, the Americans with Disabilities Act, the Fair Labor
Standards Act, the Family and Medical Leave Act, the National Labor
Relations Act, as amended, and any Illinois or other state or local
statute, law or ordinance containing comparable prohibitions, including The
Illinois Human Rights Act, as well as any and all claims under the Employee
Retirement Income Security Act ("ERISA"), and any and all claims of any
kind for attorneys' fees or costs in connection with any case, controversy,
claim, charge, or otherwise; provided that nothing herein shall be deemed
to waive or release any claim: (a) under the Age Discrimination in
Employment Act of 1967, as amended; (b) arising after the date this
Agreement was executed; (c) for indemnification that Xxxxxxx may have under
BSRT's Third Amended and Restated Declaration of Trust; or (d) to enforce
this Agreement.
In consideration of the separation payment and other promises
contained herein, and as a natural inducement to Xxxxxxx to enter into this
Agreement, BSRT hereby releases and forever discharges Xxxxxxx from any and
all actions, liabilities and other claims for relief or remuneration
whatsoever, arising out of, or in any way connected with, Xxxxxxx'x
employment by BSRT or its affiliates or The Oak Realty Group, Inc.,
including all matters in equity, contract, tort or pursuant to statute
except for actions or claims: (x) alleging fraud or wilful misconduct by
Xxxxxxx; or (y) brought by BSRT under the Loan Agreement, Non-Recourse
Promissory Note, Stock Pledge and Security Agreement entered into between
Xxxxxxx and BSRT effective January 12, 2000.
7. REPRESENTATIONS AND WARRANTIES. Xxxxxxx represents and
warrants that he:
(a) has executed and delivered this Agreement knowingly and
voluntarily;
(b) has read and understands this Agreement in its entirety;
(c) has been advised and directed orally and in writing (and
this SECTION 7(c) constitutes such written direction) to seek legal counsel
and any other advice he wishes with respect to the terms of this Agreement
before executing it, that he has sought such advice and has had the
opportunity to negotiate the terms of this Agreement; and
(d) has not been forced by any employee or agent of BSRT to
execute and deliver this Agreement.
8. COBRA. Xxxxxxx shall have the right to continue his health
insurance coverage at group rates pursuant to the Consolidated Omnibus
Budget Reconciliation Act of 1985 ("COBRA") beginning the later of November
1, 2000 and the execution and delivery of this Agreement by each party;
provided, however, that this election must be made no later than sixty (60)
days after that date. Xxxxxxx'x current health coverage will continue
through October 31, 2000. Notwithstanding the above, if BSRT terminates
its health insurance plan prior to Xxxxx 00, 0000, Xxxxxxx acknowledges and
agrees that his individual coverage pursuant to COBRA shall terminate. If,
after the termination of the plan, BSRT arranges for alternative health
insurance coverage for its employees, BSRT shall offer Xxxxxxx the option
of participating in the alternative plan; provided that Xxxxxxx shall
reimburse BSRT for the premium associated with providing Xxxxxxx with
coverage under the alternative plan.
9. NO ADMISSION OF WRONGDOING. This Agreement shall not in any
way be construed as an admission by Xxxxxxx of any acts of wrongdoing
whatsoever against him by BSRT or any of its officers, trustees, employers,
agents or advisors.
10. COUNTERPARTS. The Agreement may be executed in one or more
counterparts, each of which when so executed and delivered shall be deemed
to be an original, and all of which taken together shall constitute but one
and the same document.
11. NOTICE. Any notice required or permitted hereunder shall be
made in writing: (a) either by actual or delivery of the notice into the
hands of the party entitled; or (b) by depositing the notice in the United
States mail certified or registered, return receipt requested, all postage
prepaid and addressed to the party to whom notice is to be given at the
party's respective address set forth below, or such other address as the
party may from time to time designate by written notice to the other party.
If to BSRT:
Banyan Strategic Realty Trust
Suite 2900
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
with copies to:
Xxxxxxx & Xxxxxxxx Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to Xxxxxxx:
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
with a copy to:
Much Shelist Freed Xxxxxxxxx Xxxxx & Xxxxxxxxxx, P.C.
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxx, Esq.
The notice shall be deemed to be received on the earlier of (x) the date of
its actual receipt by the party entitled thereto and (y) the third business
day following the date of mailing.
12. AMENDMENT AND WAIVER. No amendment or modification to this
Agreement shall be valid or binding on the BSRT unless made in writing and
signed by an officer of BSRT duly authorized by the board or upon Xxxxxxx
unless made in writing and signed by Xxxxxxx. The waiver by BSRT or Xxxxxxx
of the breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
13. ENTIRE AGREEMENT. This Agreement and the Confidentiality
Agreement attached hereto constitutes the entire agreement between BSRT and
Xxxxxxx with respect to the subject matter hereof. There are no
representations, warranties, agreements or commitments between the parties
hereto with respect to Xxxxxxx'x separation and release as set forth
herein.
14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws (and not the law of
conflicts) of the State of Illinois. The parties agree that any suit,
action or proceeding with respect to this Agreement shall be brought in the
courts of Xxxx County in the State of Illinois or in the U.S. District
Court for the Northern District of Illinois. The parties hereto accept the
exclusive jurisdiction of those courts for the purpose of any such suit,
action or proceeding. Venue for any such action, in addition to any other
venue permitted by statute, will be Xxxx County, Illinois.
15. SEVERABILITY. If any provision of this Agreement shall, for
any reason, be held unenforceable, the provision shall be severed from this
Agreement unless, as a result of severance, the Agreement fails to reflect
the basis intent of the parties on the date hereof.
16. BENEFIT. This Agreement shall be binding upon, and inure to
the benefit of, and shall be enforceable by, the successors, assigns,
transferees or heirs of the parties hereto.
17. COST OF ENFORCEMENT. In any suit or proceeding seeking to
enforce the terms, covenants or conditions of this Agreement, the
prevailing party shall, in addition to all of the remedies and relief that
may be available under this Agreement or applicable law, recover his or its
reasonable attorneys' fees and costs as shall be determined and awarded by
the court or the arbitrator.
IN WITNESS WHEREOF, this Agreement is entered into on the day and
year first written above.
BANYAN STRATEGIC REALTY TRUST
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President General Counsel
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Xxx X. Xxxxxxx
