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Exhibit 10.80
RESIGNATION AND RELEASE
This Agreement is entered into on August 22, 1997, between Xxxx X.
Xxxxxxxx ("Executive") and Ambassador Apartments, Inc., a Maryland corporation
(the "Company").
WHEREAS, Executive and the Company are parties to that certain Employment
Agreement, dated April 7, 1997 (the "Employment Agreement"); and
WHEREAS, Executive has tendered his resignation to the Company alleging it
to be a termination with "Good Reason" pursuant to Section 5(b)(i) of the
Employment Agreement, and the Company has accepted such resignation, but
disputes Executive's claims regarding the characterization of his termination
of the Employment Agreement and the consequences thereof; and
WHEREAS, Executive and the Company mutually desire to resolve all matters
based upon, relating to or arising from the creation, existence or termination
of the "employer/employee" relationship between them, including pursuant to the
Employment Agreement.
Accordingly, Executive and the Company mutually agree as follow:
1. Resignation. Executive hereby confirms his resignation, effective as of
August 19, 1997 (the "Termination Date"), of his employment with the Company
and from any and all positions that he holds as an officer of the Company
(including, but not limited to, the offices of Executive Vice President and
Chief Financial Officer), as a member of any management committee of the
Company, as a trustee, representative, agent, signatory or other similar
position in connection with or for the benefit of the Company, and as an
officer, director, member of any committee, trustee, representative, agent,
signatory or other similar position of any and all subsidiaries and affiliates
of the Company, provided, however, in the event that Executive may not resign
from such position until a successor has been appointed, Executive's
resignation from any such position shall be effective on the date of such
appointment. The Company hereby confirms its acceptance of such resignation,
and the Company shall use its best efforts (and Executive will cooperate with
the Company) to make any required appointments and to remove Executive as a
trustee, agent, representative, signatory or other similar position, as quickly
as possible after the Termination Date.
2. Termination and Post-Termination Benefits.
(a) On or before __________________________, 1997, the Company will
pay Executive by check an amount equal to the sum of (i) $125,000 and
(ii) all accrued and unpaid salary at his current annual rate through the
Termination Date, subject to customary withholding for applicable
federal, state and local taxes.
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(b) Executive will be permitted to retain for his use each of the
following: (i) the laptop computer and printer currently used by him for
Company business and (ii) all paid, unused miles on his Airpass, with a
value not to exceed $6,500.
(c) On or within the applicable period following the Termination
Date, Executive shall be provided with a notice and election form for
purposes of electing continuation coverage under the Company's group
health plan in accordance with Section 4980B of the Internal Revenue Code
of 1986, as amended, and Executive will be responsible for payment of the
required premium on a timely basis, except that the Company shall be
responsible for payment of the first six months of coverage. Executive
shall be permitted to select coverage per the Company's then existing
procedures with respect to such plan; provided that 10 days prior to any
cancellation of Executive's coverage, the Company shall give Executive
notice of such intended cancellation and the reasons therefor, and shall
for such 10 day period give Executive the right to cure such cancellation
if it is for nonpayment of the required premium.
(d) The Company will reimburse Executive for reasonable and
necessary business expenses incurred by him in the course of performing
his duties as an officer of the Company through the Termination Date upon
receiving appropriate documentation in accordance with the Company's
normal policies and subject to reasonable approval by the Chief Executive
Officer of the Company.
(e) To the extent permitted by the terms of such plan and applicable
law, the Company shall contribute to Executive's account under the
Company's 401(k) plan, the pro rata portion that Executive would have
otherwise received but for the termination of his employment with the
Company of any contribution made by the Company, in its sole and absolute
discretion, pursuant to the profit sharing features of such plan in
__________ 1997, and such amount shall vest in accordance with, and for
all purposes other than the contribution set forth in this Section 2(e),
be subject to the terms of such plan taking into account the fact that
Executive's employment with the Company terminated on the date hereof.
(f) For a period of three months after the Termination Date, the
Company will use reasonable efforts to forward all personal mail and
items (including e-mail) received at the offices of the Company to such
address as shall be designated by Executive and provided any callers with
the phone number designated by Executive as a forwarding number.
(g) The Company shall supply Executive with required tax information
with respect to Ambassador Apartments, L.P., a Delaware limited
partnership (the "Partnership"), at the same time such information is
distributed to the other partners of the Partnership.
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(h) The Company will issue a press release concerning the
termination of Executive's employment in substantially the form of the
attached Exhibit A (the text contained on Exhibit A may be included in a
more comprehensive press release relating to other matters affecting the
Company) (the "Press Release") and will respond to any inquiries
concerning the circumstances of the termination of Executive's employment
(including reference checks from prospective employers of Executive) by
referring the person making the inquiry to the Press Release and advising
such person that it is the Company's policy not to comment beyond the
text of Press Release and confirming dates of employment.
3. Non-disparagement. Executive shall not directly nor indirectly
disparage the Company, any Company Released Parties, or the Company's business,
condition or prospects.
4. Employment Agreement.
(a) For all purposes of the Employment Agreement, the Employment
Term shall end on the Termination Date.
(b) Executive acknowledges and confirms that the provisions of
Sections 6(c), (d), (e) and (f) of the Employment Agreement remain in
full force and effect and are binding on Executive in accordance with
their terms.
5. Partnership Agreement Indemnification. The Company, on its own behalf
and as the General Partner of the Partnership, releases Executive from its
indemnification obligations pursuant to Article XII of the Amended and Restated
Agreement of Limited Partnership of the Partnership, other than in connection
with fraud or a criminal act by such person. The Company shall indemnify and
hold harmless, Executive from and against all claims, obligations, demands,
damages, costs, liabilities, losses, fees and expenses that Executive may
suffer resulting from, arising out of, relating to, in the nature of or caused
by any failure of Executive to be released from the indemnification obligations
as set forth in the prior sentence.
6. Indemnity by the Company. The Company shall indemnify, to the fullest
extent permitted by Maryland law, as applicable from time to time, Executive,
his heirs, successors and assigns, against any judgments, penalties, fines,
settlements and reasonable expenses and any other liabilities arising in
connection with any action, suit, or proceeding (whether civil, criminal,
administrative or investigative) in which such person is or was made a party
to, or is threatened to be made a party to, or is or was involved in because of
any action alleged to have been taken or omitted in by Executive in his
capacity as a director or officer or agent of the Company or any of its
affiliates or subsidiaries (for whatever reason, including without limitation,
insurance claims, litigation, casualty losses, director's and officer's
liability, or securities laws), and the Company shall pay or reimburse all
reasonable expenses incurred by such person in connection with any threatened,
pending or completed action, suit or proceeding (whether civil, criminal,
administrative or investigative) in which such person is a party because of
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any action alleged to have been taken or omitted by Executive in his capacity
as a director or officer or agent of the Company or any of its affiliates or
subsidiaries (for whatever reason, including without limitation, insurance
claims, litigation, casualty losses, director's and officer's liability, or
securities laws), in advance of the final disposition of the proceeding, to the
fullest extent permitted by, and in accordance with the applicable requirements
of, Maryland law, as applicable from time to time, in each case, other than in
connection with fraud or a criminal act by Executive. In addition, the Company
irrevocably and unconditionally releases and discharges Executive, his heirs,
successors and assigns (separately and collectively, "Executive Released
Parties"), jointly and individually, from any and all claims, obligations,
demands, damages, and causes of action of any nature or kind whatsoever, known
or unknown, which the Company, its affiliates, related companies or entities,
successors and assigns have or may have against the Executive Released Parties
based upon, relating to, or arising from the any action taken by Executive by
and within the scope of his authority as a officer, director, employee or other
agent of the Company or any of its subsidiaries or affiliates during the period
of his employment with the Company (other than in connection with fraud or a
criminal act by Executive), it being understood that the foregoing release will
not release Executive, his heirs, successors and assigns, from any current or
future obligation under the terms of any written agreement that survives the
execution of this Agreement (including, without limitation, any promissory note
from the Executive to the Company or its affiliates and agreements related
thereto) to which such person is bound or has enter other than by and within
the scope of Executive's authority as an officer, director, employee or other
agent of the Company.
7. Sales of Securities.
(a) Executive will not, for a period of two full business days after
the publication of the Press Release, purchase or sell, or contract to
purchase or sell, directly or indirectly, any shares of Common Stock, par
value $.01 per share, of the Company (the "Common Stock") or any right to
acquire or dispose of Common Stock.
8. Release by Executive. As consideration for the Company's agreements
contained herein, Executive irrevocably and unconditionally releases and
discharges the Company, its officers, directors, shareholders, agents,
employees, affiliates, related companies or entities, successors and assigns
(separately and collectively "Company Released Parties"), jointly and
individually, from any and all claims, obligations, demands, damages, and
causes of action of any nature or kind whatsoever, known or unknown, which
Executive, his heirs, successors or assigns have or may have against the
Company Released Parties based upon, relating to, or arising from the creation,
existence or termination of the "employer/employee" relationship, including but
not limited to claims under the Employment Agreement, or claims of
discrimination under any federal state or local law, rule or regulation,
whether those claims are past or present, whether they arise from equity,
common law, or statute, whether they arise from labor laws or discrimination
laws, such as the Age Discrimination in Employment Act, Title VII of the Civil
Rights Act of 1964, as amended, or any other law, rule or regulation. This
release
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is for any relief, no matter how called, including but not limited to wages,
backpay, frontpay, compensatory damages, punitive damages or damages for pain
or suffering, or attorney fees. Further, Executive agrees he will not be
entitled to any benefit from any claim or proceeding filed by him or on his
behalf with any agency or court which is within the scope of this Agreement. It
being understood that the foregoing release will not release Company, its
affiliates, related companies or entities, successors and assigns from any
current or future obligation under the terms of any written agreement that
survives the execution of this Agreement to which such person is bound or has
enter other than the Employment Agreement.
9. Settlement of Claims. The Company and Executive agree that the
execution of this Agreement is in compromise and final settlement among the
parties of all matters, constitutes full satisfaction of all claims made or
which could be made based upon, relating to or arising from the creation,
existence or termination of the "employer/employee" relationship, and does not
in any way admit liability or wrongdoing by any party.
10. Understanding of Agreement. Executive acknowledges that he has
carefully read and fully understands this Agreement, including the release
included herein, that he has had the opportunity to have an attorney explain to
him the terms of the foregoing, and that he knows and understands the contents
of the foregoing, that he executes this Agreement knowingly and voluntarily as
his own free act and deed and that this Agreement was freely negotiated and
entered into without fraud, duress or coercion and with full knowledge of its
significance, effects and consequences.
11. Entire Agreement. This Agreement (including the documents referenced
herein) is the complete agreement between the parties, and there are no written
or oral understandings, promises or agreements directly or indirectly related
to this Agreement that are not incorporated herein in full.
12. Interpretation. Section headings used in this Agreement are for ease
of reference only and are not intended as substantive terms hereof. This
Agreement shall be governed by and interpreted under the laws of the State of
Illinois without giving effect to the conflict of laws provisions thereof.
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In witness whereof, the parties have executed and delivered this Agreement on
and as of the date first written above.
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Xxxx X. Xxxxxxxx
AMBASSADOR APARTMENTS, INC.
By:
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Xxxxx X. Xxxxxxxx
Chairman of the Board and
Chief Executive Officer
