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Exhibit 10.16
AGREEMENT OF SEVERANCE AND MUTUAL RELEASE
This Agreement of Severance and Mutual Release ("Agreement") is made
effective as of the 1st day of January, 1999 between Xxxxxxx Xxxxxx ("Xxxxxx")
and Lexford Residential Trust, a Maryland real estate investment trust (together
with its predecessor by merger, Lexford, Inc., formerly known as Cardinal Realty
Services, Inc., "Lexford Trust").
WITNESSETH:
WHEREAS, Xxxxxx and Lexford each desire to amicably agree to the terms
of Xxxxxx'x resignation from all positions including, without limitation, as an
employee or officer with Lexford Trust or any of its subsidiaries, affiliates or
partnerships (collectively with Lexford Trust, "Lexford").
NOW, THEREFORE, in consideration of the covenants and agreements set
forth in this Agreement, and other good and valuable consideration exchanged by
the parties hereto, the sufficiency of which to support each and every covenant
herein is expressly acknowledged by the parties hereto, the parties agree as
follows:
1. Resignation.
Xxxxxx, simultaneous with, and by means of the execution and delivery
hereof, hereby tenders her resignation, effective January 1, 1999, as Senior
Vice President of Property Operations of Lexford Trust and as an employee of
Lexford Properties, Inc. ("LPI") in which status she has heretofore served
pursuant to that certain Employment Agreement between Xxxxxx and LPI dated
August 1, 1996 (the "Employment Agreement"), which resignation Lexford and LPI
have accepted. To the extent not covered by the aforementioned resignation, this
Agreement shall serve as Xxxxxx'x resignation from all positions with Lexford.
Accordingly, the term of the Employment Agreement is hereby deemed terminated
and the terms and provisions thereof, solely except those contained in Paragraph
8 which will remain in full force and effect, are of no further force and
effect.
2. Final Compensation.
Lexford will pay to Xxxxxx, as xxxxxxxxx compensation and in full
consideration of Xxxxxx'x release and covenants contained herein:
(a) the aggregate sum of One Hundred Eighty-seven Thousand Five
Hundred Dollars ($187,500), payable in full seven (7) days
following the execution and delivery hereof. Xxxxxx
acknowledges that such payment to be made to her in accordance
with this Paragraph 2 will be made net of applicable employee
payroll withholding and other employment taxes. Xxxxxx
acknowledges and agrees that the payment to be made to her
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pursuant to this Paragraph 2 will be made in full satisfaction
of any and all obligations and liabilities which Lexford, LPI
or any of their respective affiliates owes, or may owe, to
Xxxxxx in respect of the Employment Agreement or any other
agreements, documents, instruments or arrangements (whether
written or verbal) existing between Xxxxxx and any of them.
Such obligations satisfied hereby include, by way of example
and not by way of limitation: (i) Lexford's prior obligations
under the Employment Agreement to furnish Xxxxxx with any
health and dental insurance, life insurance, disability
insurance, retirement or other employee benefits of any kind,
nature or description, it being understood and agreed that
upon the execution and delivery of this Agreement all such
obligations shall cease immediately and be of no further force
and effect; provided, however, that nothing herein shall
impact statutory obligations imposed by the Comprehensive
Omnibus Budget Reconciliation Act; and (ii) the obligations of
Lexford Trust and LPI (as successor by merger to Rexflor
Acquisition Corporation), if any, remaining under that certain
Merger Agreement dated August 1, 1996, by and among Lexford
Trust, Rexflor Acquisition Corporation, LPI and LPI's former
shareholders, including Xxxxxx (the "Merger Agreement").
(b) Ownership, possession and use of that certain desktop computer
terminal which Xxxxxx has used during her employment with
Lexford.
(c) Payment of attorneys' fees and disbursements incurred by
Xxxxxx, as well as Xxxxx Xxxx Xxxxx, in the negotiation,
preparation, review and execution of this Agreement, as well
as that certain Severance Agreement and General Release of
even date herewith between Lexford Trust and Xxxxx Xxxx Xxxxx,
in an aggregate amount not to exceed $2,500. Lexford's
obligations under this Paragraph 2(c) will be satisfied by
direct payment of such attorneys' fees and disbursements in an
aggregate amount not to exceed $2,500 to the law firm of
Xxxxxxxx, Xxxxxxxx et. al., of Fort Worth, Texas.
(d) Any vested benefits, pursuant to the provisions of the
Company's 401(k) Savings Plan.
3. Return of Equipment.
As provided in Paragraph 2(b) above, Xxxxxx may keep the desktop
personal computer terminal she used during her employment with Lexford; however,
she must return all other equipment owned by Lexford, including, but not limited
to, dictation equipment, and will remove such retained computer terminal as well
as all personal effects from the office space she has occupied at Lexford's
offices in San Antonio, Texas.
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4. Release by Employee.
(a) Xxxxxx, for herself and her dependents, successors, assigns,
heirs, representatives, attorneys, executors and
administrators (and her and their legal representatives of
every kind), hereby completely and irrevocably discharges and
releases Lexford and LPI, their respective officers, trustees,
directors, employees, agents, shareholders, affiliates,
subsidiaries, related entities, successors and assigns from
any and all claims, demands, actions, causes of action and/or
liability whatsoever involving any matter arising out of or in
any way related, directly or indirectly, to (i) Xxxxxx'x
employment with Lexford and LPI, including any positions with
subsidiary or affiliate entities, compensation therefor, or
the termination thereof, including, but not limited to, any
claim for employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et
seq., the Americans with Disabilities Act, 42 U.S.C. Section
12101, et seq., Ohio Revised Code Section 4112, Ohio Revised
Code Section 4101 and any other federal, state or municipal
fair employment practice or discrimination laws, statutes or
ordinances, (ii) the Merger Agreement; and (iii) any and all
other matters, rights, claims, actions, suits, liens, debts,
dues, damages or demands of every kind, whether or not
referred to in this Agreement, arising, occurring, accruing or
in existence on, or prior to, the date hereof. Xxxxxx agrees
that she will not seek reinstatement or reemployment with
Lexford or any affiliate thereof at any time in the future.
(b) Xxxxxx further agrees and acknowledges that she (i) has been
advised by Lexford to consult with legal counsel prior to
executing this Agreement and the release provided for in this
Paragraph 4; (ii) has had an opportunity to consult with and
has been advised by legal counsel of her choice; (iii) fully
understands the terms of this Agreement; and (iv) enters into
this Agreement freely and voluntarily and intending to be
bound.
5. Release by Lexford.
Except as provided in the immediately succeeding sentence Lexford
Trust, on behalf of itself and its affiliated, related and subsidiary entities,
successors and assigns (herein the "Lexford Releasors"), hereby completely and
irrevocably releases and forever discharges Xxxxxx, her successors, assigns,
heirs, representatives, attorneys, executors and administrators from any and all
claims, demands, damages, actions and/or causes of action of any kind and every
description, which the Lexford Releasors now have or may have had for, upon, or
by reasons of any cause whatsoever, against Xxxxxx. This release shall not,
however, apply to the obligations of Xxxxxx, arising under or evidenced by this
Agreement or under Paragraph 8 of the Employment Agreement.
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6. Continued Availability and Cooperation.
(a) Xxxxxx shall cooperate fully with Lexford and with Lexford's
counsel in connection with any future actual or threatened
litigation or administrative proceeding involving Lexford, its
affiliated, related or subsidiary entities, its officers,
directors, shareholders, employees, agents and
representatives, and its successors or assigns that relates to
events, occurrences or conduct occurring (or claimed to have
occurred) during the period of Xxxxxx'x employment by Lexford
and LPI (or any of its predecessors-in-interest).
(b) Xxxxxx shall be reimbursed by Lexford for reasonable travel,
lodging, telephone and similar expenses incurred in connection
with any such cooperation required under Paragraph 6(a) above,
which Lexford shall reasonably endeavor to schedule at times
not conflicting with the reasonable requirements of any third
party with whom Xxxxxx has a business relationship that
provides remuneration to Xxxxxx. Xxxxxx shall not unreasonably
withhold her availability for such cooperation.
(c) To the extent that Xxxxxx executes and delivers this Agreement
on, or before, December 31, 1998, Xxxxxx will continue to
perform such duties as are incidental to her continued
employment in accordance with the terms of the Employment
Agreement through the close of business on December 31, 1998
(subject to her use of earned "paid time off" pursuant to
Lexford Trust's "PTO" program). Such duties will include, by
way of illustration and not by way of limitation, Xxxxxx'x
cooperation with LPI and LPI's efforts to terminate the
leasehold for its San Antonio office space at the lowest
obtainable termination costs.
7. Successors and Binding Agreement.
(a) This Agreement shall be binding upon and inure to the benefit
of Lexford and any successor of or to Lexford, including,
without limitation, any persons acquiring directly or
indirectly all or substantially all of the business and/or
assets of Lexford whether by purchase, merger, consolidation,
reorganization or otherwise be assignable or delegable by
Lexford.
(b) This Agreement shall inure to the benefit of and be
enforceable by Xxxxxx, her personal or legal representatives,
executors, administrators, successors, heirs, distributees
and/or legatees.
(c) This Agreement is personal in nature and none of the parties
hereto shall, without the consent of the other parties,
assign, transfer or delegate this Agreement or any rights or
obligations hereunder except as expressly provided in
Paragraphs 7(a) and 7(b) of this Agreement.
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(d) This Agreement is intended to be for the exclusive benefit of
the parties hereto, and except as provided in Paragraph 7(a)
of this Agreement, no third party shall have any rights
hereunder.
8. Confidentiality and Statements to Third Parties.
(a) Except as otherwise required by law and except to the extent,
and only to the extent, that Lexford has, publicly disclosed,
or will publicly disclose the terms of this Agreement due to
its status as a reporting company under the Securities
Exchange Act of 1934 and Xxxxxx'x prior affiliate status,
Xxxxxx will not disclose the terms of this Agreement to anyone
other than members of her immediate family, her accountants,
or her legal advisors, as necessary, and Xxxxxx will require
that they and their agents take all reasonable steps to
maintain the confidentiality hereof, except as otherwise
required by law, and Lexford will further disclose the terms
of this Agreement only to those persons (including employees
of Lexford) with a genuine business interest in learning such
information.
(b) Neither Xxxxxx nor Lexford shall, directly or indirectly, make
or cause to be made any statements to any third parties
criticizing or disparaging the other or commenting adversely
on the character or business reputation of the other, but this
provision shall not limit the ability or responsibility of
either party to respond to the best of its knowledge to
administrative or regulatory inquiries or to testify to the
best of its knowledge in legal proceedings.
(c) Xxxxxx agrees not to disclose, divulge, discuss, copy or
otherwise use or suffer to be used in any manner, in
competition with, or contrary to the interests of, Lexford or
any of Lexford's subsidiaries, affiliates or related entities,
customer lists, product research, pricing information,
Lexford's trade secrets or any other information that would
provide Lexford's competitors with information about Lexford's
methods, goals, or customers, it being acknowledged by Xxxxxx
that all such information regarding Lexford's business and
Lexford's subsidiaries, affiliates and related entities
compiled or obtained by, or furnished to, Xxxxxx while Xxxxxx
was employed by or associated with Lexford is confidential
information and Lexford's exclusive property.
9. Notices.
For all purposes of this Agreement, all communications provided for
herein shall be in writing and shall be deemed to have been duly given when
delivered, addressed (a) to Lexford (to the attention of its General Counsel) at
its principal executive offices located at The Huntington Center, 00 Xxxxx Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxx 00000, and (b) to Xxxxxx at her principal
residence, or to such other address as either
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party may have furnished to the other in writing and in accordance herewith.
Notices of change of address shall be effective only upon receipt.
10. Governing Law.
The validity, interpretation, construction and performance of this
Agreement (and every other issue arising hereunder) shall be governed by the
laws of the State of Ohio, without giving effect to the principles of conflict
of laws of such state.
11. Miscellaneous.
Lexford and Xxxxxx hereby acknowledge and understand that:
(a) Each has been afforded the opportunity to review and consider
the terms of this Agreement for a period of forty-five (45)
days and any waiver of such opportunity has been effected
knowingly and voluntarily with the benefit of legal counsel;
(b) Each has availed herself or itself of the opportunity to
receive counsel regarding their respective rights, obligations
and liabilities;
(c) Nothing in this Agreement is or shall be construed as an
admission by Lexford of any breach of any agreement or any
intentional or unintentional wrongdoing of any nature;
(d) Neither Xxxxxx nor Lexford have made any representations
concerning the terms or effects of this Agreement other than
those contained in this Agreement and this Agreement may not
be modified or terminated orally;
(e) The terms of this Agreement are not effective or enforceable
until seven (7) days after its execution, during which period
Xxxxxx may revoke this Agreement;
(f) The benefits provided Xxxxxx herein are in excess of the
benefits as to which she would otherwise be entitled;
(g) The death or disability of Xxxxxx following the execution of
this Agreement shall not affect or revoke this Agreement or
any of the obligations of the parties hereto. No provision of
this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing
signed by Xxxxxx and Lexford. No waiver by either party hereto
at any time of any breach by the other party hereto or
compliance with any condition or provision of this Agreement
to be performed by such other party shall deemed a waiver of
similar or dissimilar provisions or conditions at the same or
at any prior or subsequent time. No agreements or
representations, oral or otherwise, expressed or implied, with
respect to the subject matter hereof have been
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made by any of the parties that are not set forth expressly in
this Agreement and every one of them (if, in fact, there have
been any) is hereby terminated without liability or any other
legal effect whatsoever; and
(h) Except as provided for in this Agreement, all compensation and
other payments due Xxxxxx as a result of her employment with
Lexford have been paid in full and Xxxxxx is not entitled to
any additional salary, bonus or other payments whatsoever.
(i) Xxxxxx hereby represents and warrants to Lexford that she is
an unmarried individual.
12. Entire Agreement.
This Agreement (together with the other documents and supporting
information delivered simultaneously herewith) shall constitute the entire
agreement among the parties hereto with respect to the subject matter hereof and
shall supercede all prior verbal or written agreements, covenants,
communications, understandings, commitments, representations or warranties,
whether oral or written, by any party hereto or any of its representatives
pertaining to such subject matter.
13. Validity.
The validity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement which shall nevertheless remain in full force and effect.
14. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same Agreement.
15. Captions and Sections Headings.
Captions and section headings used herein are for convenience and are
not part of this Agreement and shall not be used in construing it.
16. Further Assurances.
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 and provisions of the Agreement.
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IN WITNESS WHEREOF, the undersigned parties have hereunto executed this
Severance Agreement and Mutual Release as of the day and date first above
written.
WITNESSES: LEXFORD RESIDENTIAL TRUST
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxx Xxxxx
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Xxxxxxx X. Xxx Xxxxx
/s/ Xxxxxxxxx Xxxxxxx Senior Vice President
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/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
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STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared Xxxxxxx X. Xxx Xxxxx, known to me to be the Senior Vice President of
Lexford Residential Trust; he did acknowledge that he executed the foregoing
Agreement of said Maryland real estate investment trust and that the same was
his free act and deed and the free act and deed of said Maryland real estate
investment trust.
/s/ Xxxx X. Xxxxxxxx
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Notary Public
STATE OF TEXAS )
) SS:
COUNTY OF BEXAR )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared Xxxxxxx Xxxxxx, and she did acknowledge that she executed the foregoing
Agreement and that the same was her free act and deed.
/s/ Xxxxxxx Xxxxxxxxxxx
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Notary Public
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