SEVERANCE, MUTUAL GENERAL RELEASE AND NON-DISPARAGEMENT AGREEMENT
Exhibit
10.1
SEVERANCE,
MUTUAL GENERAL RELEASE
AND
Equity
One, Inc., and its agents, servants, officers, directors, employees,
predecessors, subsidiaries, affiliates, and successors, are hereinafter
collectively referred to as “Employer.”
Xxxx
Merkur
his
heirs, successors and assigns are hereinafter referred to as
“Employee.”
WHEREAS,
Employer and Employee previously entered into a letter agreement dated as March
26, 2005 (the “Employment
Agreement”),
that
governed the terms and conditions of Employee’s employment by
Employer.
WHEREAS,
this
Severance, Mutual General Release and Non-Disparagement Agreement (this
“Agreement”)
is
being executed by the Employer and Employee in connection with the termination
of the Employment Agreement.
WHEREAS,
following execution of this Agreement and expiration of the seven-day revocation
period referred to in Section 9 below, Employee will be entitled to the
severance payments described in Section 5 below.
WHEREAS,
except
as provided herein, Employee and Employer desire to compromise, finally settle,
and fully release actual or potential claims including those related to
Employee’s employment and termination of employment that Employee in any
capacity may have or claim to have against the other.
WHEREAS,
Employee acknowledges that Employee is waiving his rights or claims only in
exchange for consideration in addition to anything of value to which he already
is entitled except as otherwise provided herein.
NOW,
THEREFORE,
in
consideration of the foregoing and the Employer’s agreement to make severance
payments as described in Section 5 below, Employer and Employee agrees as
follows:
Section
1. The
recitals above are true and correct.
Section
2. Except
as
provided in Section 3 below, effective upon Employee’s receipt of severance
payments as described below, Employee does hereby release and discharge Employer
from any and all claims, demands or liabilities whatsoever, whether known or
unknown, which Employee ever had or may now have against the Employer, from
the
beginning of time to the date of this Agreement, including, without limitation,
any claims, demands or liabilities in connection with Employee’s employment,
including wrongful termination, breach of express or implied contract, unpaid
wages, or pursuant to any federal, state, or local employment laws, regulations,
or executive orders prohibiting inter
alia,
age,
race, sex, national origin, religion, handicap, and disability discrimination,
such as the Age Discrimination in Employment Act, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1966, the Employee Retirement Income
Security Act of 1974, the Americans with Disabilities Act of 1990, the
Rehabilitation Act of 1973, the Florida Private Sector Whistleblower Act, the
Fair Labor Standards Act, the Immigration Reform and Control Act, the Florida
Civil Rights Act, the Family and Medical Leave Act, the Florida and Federal
Constitutions; and any and all other federal, state, and local laws and
regulations prohibiting, without limitation, discrimination in employment,
retaliation, conspiracy, tortious or wrongful discharge, breach of an express
or
implied contract, breach of a covenant of good faith and fair dealing,
intentional and/or negligent infliction of emotional distress, defamation,
misrepresentation or fraud, negligence, negligent supervision, hiring, or
retention, assault, battery, detrimental reliance, or any other
offense.
Section
3. Employee’s
release provided in Section 2 above does not waive (a) any claims that are
not
waivable by law, (b) rights or claims that may arise after this Agreement is
executed, (c) any rights to indemnification arising under the charter or bylaws
of the Employer or under any indemnification agreement between Employer and
Employee and executed as a result of Employee’s employment as an officer of the
Employer or its subsidiaries, (d) any rights under any director’s and officer’s
insurance policy maintained by the Employer, (e) rights, if any, of the Employee
under the Equity One, Inc. 401(k) Plan, (f) any rights (to the extent otherwise
eligible) to continue medical and dental benefits, at his expense, under the
continuation health coverage provisions of Title X of the Consolidated Omnibus
Budget Reconciliation Act of 1986, or (g) rights under this
Agreement.
Section
4. The
parties agree, following the execution of this agreement, that neither shall
make any comments of any kind that could be construed as negative concerning
the
other party or any of such party’s affiliates to any individual or entity,
including but not limited to, future employers, competitors, stockholders,
tenants, employees, vendors or financial or credit institutions, other than
factual matters and other information that may be generally available to the
public.
Section
5. In
consideration of the release contained herein, following execution of this
Agreement and expiration of the seven-day revocation period referred to in
Section 9 below, the Employer shall (a) accelerate the vesting requirements
on
19,100 shares of restricted common stock of the Employer previously granted
to
Employee, following which such stock will be free of any contractual
restrictions thereon, (b) accelerate the vesting requirements on options to
purchase 60,000 shares of common stock of the Employer previously awarded to
Employee, following which such options will be free of any contractual
restrictions thereon and may be exercised for up to six months following the
date hereof and (c) pay Employee a separation and severance payment in an amount
equal to $116,100, less
appropriate payroll deductions related thereto and any similar deductions on
required by the acceleration of the restricted stock in (a) and (b) above.
Employee will make arrangements to pay any taxes that may exceed the cash
payment in (c) above. In addition, Employer hereby acknowledges that it will,
following the termination of employment, pay to Employee any unpaid salary
and
accrued vacation in accordance with Employer’s normal payroll
cycle.
Section
6. Except
as
provided in Section 7 below, Employer does hereby release and discharge Employee
from any and all claims, demands or liabilities whatsoever, whether known or
unknown or suspected to exist by Employer that Employer ever had or may now
have
against Employee from the beginning of time to the date of this Agreement
including without limitation any claims, demands or liabilities in connection
with Employee’s employment or termination of employment including without
limitation breach of contract, wrongful termination, retaliation, assault,
battery, negligence, negligent supervision, hiring or retention, intentional
and/or negligent infliction of emotional distress, defamation and promissory
estoppel.
Section
7. Employer’s
release provided in Section 5 above does not waive: (a) any claims that are
not
waivable by law, (b) rights or claims that may arise after this Agreement is
executed, (c) rights under this Agreement, (d) any criminal, malicious,
dishonest or fraudulent acts committed by Employee in violation of any federal
or state laws or regulations, (e) any breach of fiduciary duty Employee owed
or
owes to Employer in his capacity as an officer of the Company or its
subsidiaries, and (f) any gross negligence or willful misconduct by Employee
in
the performance of his obligations under the Employment Agreement.
Section
8. Employee
fully understands that if any fact with respect to which this Agreement is
executed is found hereafter to be different from the facts Employee now believes
to be true, he expressly accepts and assumes the risk of such possible
difference in fact and agrees that this Agreement shall be effective
notwithstanding such difference in fact.
Section
9. Pursuant
to the provisions of the Older Workers Benefit Protection Act (OWBPA), which
applies to Employee’s waiver of rights under the Age Discrimination in
Employment Act, Employee has had a period of at least twenty-one (21) days
within which to consider whether to execute this Agreement. Also pursuant to
the
OWBPA, Employee may revoke the Agreement within seven (7) days of its execution.
It is specifically understood that this Agreement shall not become effective
or
enforceable until the seven-day revocation period has expired. Consideration
for
this Agreement as described in Section 5 above shall be paid by Employer to
Employee upon expiration of the seven-day revocation period.
Section
10. Employee
acknowledges that, pursuant to the OWBPA, Employer advised Employee, in writing,
to consult with an attorney before executing this Agreement.
Section
11. This
Agreement does not constitute an admission of a violation of any law, order,
regulation, or enactment, or of wrongdoing of any kind by Employer or Employee
and is entered into by the parties solely to end any controversy between
them.
Section
12. This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Florida, both substantive and remedial. Each party
unconditionally and irrevocably agrees that the exclusive forum and venue for
any action, suit or proceeding involving the Agreement shall be in Miami-Dade
County, Florida, and consents to submit to the exclusive jurisdiction,
including, without limitation, personal jurisdiction, and forum and venue of
the
Circuit Courts of the State of Florida or the United States District Court
for
the Southern District of Florida, in each case, located in Miami-Dade County,
Florida.
Section
13. The
failure of any provision of this Agreement shall in no manner affect the right
to enforce the same, and the waiver by any party of any breach of any provision
of this Agreement shall not be construed to be a waiver of such party of any
succeeding breach of such provision or a waiver by such party of any breach
of
any other provision. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason,
the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect.
Section
14. This
Agreement represents the entire understanding and agreement between the parties
with respect to the subject matter hereof and there are no promises, agreements,
conditions, undertakings, warranties, or representations, whether written or
oral, express or implied, between the parties other than as set forth herein.
This Agreement cannot be amended, supplemented, or modified except by an
instrument in writing signed by the parties against whom enforcement of such
amendment, supplement or modification is sought.
Section
15. This
Agreement may be executed and delivered (including by facsimile transmission)
in
one or more counterparts, and by the parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original, but all of which
taken together shall constitute one and the same Agreement.
Section
16. EMPLOYEE
STATES THAT HE HAS CAREFULLY READ THIS RELEASE, IT HAS BEEN FULLY EXPLAINED
TO
HIM, THAT HE HAS HAD THE OPPORTUNITY TO HAVE IT REVIEWED BY AN ATTORNEY, AND
THAT HE FULLY UNDERSTANDS ITS FINAL AND BINDING EFFECT, AND THAT THE ONLY
PROMISES MADE TO HIM TO SIGN THE RELEASE ARE THOSE STATED IN THE RELEASE, AND
THAT EMPLOYEE IS SIGNING THIS RELEASE VOLUNTARILY WITH THE FULL INTENT OF
RELEASING EMPLOYER OF ALL CLAIMS DESCRIBED HEREIN.
Section
16. In
the
event either party commences litigation to enforce such party's rights
hereunder, the prevailing party in such litigation shall, be entitled to recover
the reasonable costs and attorneys fees incurred in such litigation from the
other party, at all tribunal levels.
The
parties hereto have executed this Agreement effective upon execution by the
last
party to execute this Agreement, subject to expiration of the seven-day
revocation period referred to in Section 9 above.
EQUITY ONE, INC. | ||
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Date: February 23, 2007 | By: | /s/ Xxxxxxx Xxxxx |
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Title: President and Chief Executive Officer |
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Date: February 23, 2007 | By: | /s/ Xxxx Merkur |
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Xxxx Merkur |