Employment Agreement - Albright

Employment Agreement - McMunn

Amendment to Employment Agreement - McMunn

 

 

 

EX-10.1 2 albrightemploymentagreement.htm EMPLOYMENT AGREEMENT JUNE 28, 2011 

EMPLOYMENT AGREEMENT

 

This employment agreement (the “Agreement”) is made and entered into as of June 30, 2011, by and between Consolidated-Tomoka Land Co., a Florida corporation (the “Company”), and John P. Albright (the “Executive”).

 

BACKGROUND

 

The Company desires to employ the Executive as the Company’s President and Chief Executive Officer, and the Executive desires to accept employment with the Company, on the terms and conditions set forth below.

 

TERMS

 

1.  

Employment

 

a.  

General.  The Executive agrees to accept employment with the Company, and one or more of the Company’s subsidiary corporations, to render the services specified in this Agreement subject to the terms and conditions of this Agreement.  All compensation paid to the Executive by the Company or any subsidiary of the Company, and all benefits and perquisites received by the Executive from the Company or any of its subsidiaries, will be aggregated in determining whether the Executive has received the compensation and benefits provided for herein.

 

b.  

Duration.  This Agreement is effective on the date it is fully executed and has no specific expiration date.  Unless terminated by agreement of the parties, this Agreement will govern the Executive’s continued employment by the Company until such employment terminates.

 

2.  

Duties.

 

               a.  

General Duties.  Beginning on August 1, 2011, the Executive shall serve as President and Chief Executive Officer of the Company, with duties and responsibilities that are customary for such executives including, without limitation, ultimate responsibility for managing the Company, subject to the authority of the Board of Directors of the Company (the “Board”).  To the extent the Board has authorized its Compensation Committee of the Board to act on its behalf, references to the Board will hereinafter also be deemed to include the Compensation Committee.

 

 

b.

Full Time Employment.  The Executive agrees to devote his full time and best efforts to the successful functioning of the Company and agrees that he will faithfully and industriously perform all the duties pertaining to his office and position as President and Chief Executive Officer in accordance with the policies established by the Board from time to time, to the best of his ability, experience and talent and in a manner satisfactory to the Company.  Further, the Executive shall devote his full business time and energy to the business, affairs and interests of the Company and its subsidiaries, and matters related thereto.  It is understood that the principal location of employment with the Company shall be at Company’s headquarters in Daytona Beach, Florida, and that in the course of his employment the Executive will become active in the Daytona Beach, Florida, community.  The Executive shall maintain his primary residence within a radius of seventy-five miles of Daytona Beach, Florida.

 

 

c.

Certain Permissible Activities. The Executive may also make and manage personal business investments of his choice and serve in any capacity with any civic, educational or charitable organization, or any governmental entity or trade association, without seeking or obtaining approval by the Company so long as such activities and service do not interfere or conflict with the performance of his duties under this Agreement.  The Executive acknowledges that he shall be subject to the Consolidated-Tomoka Land Co. Code of Business Conduct and Ethics, including the provisions with respect to corporate opportunities.

 

 

d.

Board Membership.  Upon the occurrence of any vacancy on the Board prior to the Company’s 2012 Annual Meeting of Shareholders (the “2012 Annual Meeting”), the Board shall appoint the Executive as a director of the Company,  and in any event the Board will include the Executive as part of management’s slate of nominees for the Board for the 2012 Annual Meeting.  Thereafter, the Executive’s service on the Board will be subject to the same scrutiny by the governance committee of the Board as all other director nominee candidates.  The Executive’s service as a member of the Board will be further subject to any required shareholder approval.  Upon the termination of the Executive’s employment for any reason, the Executive will be deemed to have tendered his resignation from the Board (and any boards of subsidiaries) voluntarily, without any further required action by the Executive, as of the end of the Executive’s employment and/or at the Board’s request including, but not limited to, complying with any independent Board membership thresholds.  For so long as the Executive remains an employee of the Company, he will not be additionally compensated for his services as a member of the Board.

 

3.  

Compensation and Expenses.

 

a.  

Base Salary.  The Executive will be paid a base salary at an annual rate of $330,000 (the “Base Salary”), payable in accordance with the Company’s payroll practices as in effect from time to time.

 

b.  

Performance Bonus.  For each fiscal year ending during his employment, the Executive will be eligible to earn an annual bonus (which shall be pro-rated for the fiscal year ending December 31, 2011 based on the number of months worked during such year), payable in accordance with the Company’s customary bonus and payroll practices as in effect from time to time.  The annual bonus will vary between zero and 60% of the Executive’s Base Salary.  The annual bonus payable will be determined by the Board, based on the attainment of corporate and/or individual performance goals as mutually agreed upon by the Executive and the Board.

 

c.  

Signing Bonus.  Upon the full execution of this Agreement, the Company shall pay to the Executive a one-time signing bonus in the amount of $100,000.

 

d.  

Relocation Expenses.  The Company agrees to pay for the reasonable and verifiable out-of-pocket expenses incurred by the Executive in connection with his relocation to the Central Florida area; provided, however, that the amount payable under this Section 3.d shall not exceed $35,000.

 

 

 

 

 

e.  

Reimbursement of Signing Bonus and Relocation Expenses. The Executive agrees that (i) if the Executive’s employment with the Company terminates prior to February 1, 2012, the Executive shall repay the Company 90% of the signing bonus paid under Section 3.c and the relocation expenses paid under Section 3.d and (ii) if the Executive’s employment with the Company terminates on or after February 1, 2012 but prior to August 1, 2012, the Executive shall repay the Company a pro rata share of the signing bonus paid under Section 3.c and the relocation expenses paid under Section 3.d at the rate of 1/12 of such amounts for each month or portion of a month that the Executive’s employment is less than twelve months; except that the Executive shall not be required to repay any amounts under this Section 3.e if the Executive’s employment is terminated by the Company pursuant to Section 5.d of this Agreement.

 

f.  

Equity Awards. The Board has authorized the grant to the Executive, effective on August 1, 2011, of: (i) non-qualified options to purchase 50,000 shares of Company common stock under the Consolidated-Tomoka Land Co. 2010 Equity Incentive Plan (the “2010 Plan”) with an exercise price per share equal to the “Fair Market Value” (as defined in the 2010 Plan) on the Grant Date (as defined in the award agreement attached hereto as Exhibit A), and subject to time vesting of three years and vesting upon a “Change in Control” (as defined in the 2010 Plan); and (ii) an “inducement” grant of 96,000 shares of restricted Company common stock outside of the 2010 Plan in accordance with and subject to the exception set forth in Section 711(a) of the NYSE Amex Company Guide, where increments of 16,000 shares will vest in full upon the price per share of Company common stock meeting or exceeding target trailing 60-day average closing prices as set forth in the award agreement attached hereto as Exhibit B.  Each award will be granted on the Executive’s first date of employment with the Company and will be memorialized in (and subject to the terms of) the award agreements attached hereto as Exhibits A and B.

 

g.  

Expenses.  In addition to any compensation paid to the Executive pursuant to Section 3, the Company will reimburse, or advance funds to, the Executive for all reasonable, ordinary and necessary travel or entertainment expenses incurred by him in the course of his performances of his duties as an executive officer of the Company during the term of his employment in accordance with the Company’s then-current policy.

 

h.  

Clawback.  Notwithstanding anything to the contrary in this Agreement, all incentive-based compensation payable under this Agreement shall be subject to any clawback policy adopted by the Company from time to time in accordance with the Dodd-Frank Wall Street Reform and Consumer Protection Act if and to the extent applicable to the Company.

 

4.

Benefits.

 

a.  

Employee Benefit Programs.  In addition to the compensation to which the Executive is entitled pursuant to the provisions of Section 3 of this Agreement, during the term of his employment the Executive is eligible to participate in any pension or retirement plan, insurance or other employee benefit plan that is maintained at that time by the Company for its senior executive employees, including programs of life, disability, medical and dental insurance, subject to the provisions of such plans and applicable law.

 

 

b.

Automobile.  During the term of his employment, the Executive shall be furnished with either an automobile, of a make and year reasonably satisfactory to the Company and the Executive, either owned or leased by the Company, or an automobile allowance sufficient to permit the Executive to obtain the use of such an automobile, the choice of providing such automobile or allowance to be at the mutual agreement of the Company and the Executive.

 

5.  

Termination.

 

a.  

Termination for Cause.  The Company may terminate the Executive’s employment pursuant to this Agreement at any time for Cause and the termination will become effective immediately at the time the Company provides written notice to the Executive.  If the Company decides to terminate the Executive’s employment under this Agreement for Cause, the Company will have no further obligations to make any payments to the Executive under this Agreement, except that the Executive will receive any unpaid accrued Base Salary through the date of termination of employment.  Upon termination for Cause, the Executive will not be entitled to any annual bonus payments other than those becoming due and payable prior to the termination date.  For purposes of this Agreement, the term “Cause” will mean:

 

(i)  

The Executive’s arrest or conviction for, plea of nolo contendere to, or admission of the commission of, any act of fraud, misappropriation, or embezzlement, or a criminal felony involving dishonesty or moral turpitude;

 

(ii)  

A breach by the Executive of any material provision of this Agreement, provided that the Executive is given reasonable notice of, and a reasonable opportunity to cure within thirty days of such notice (if such breach is curable), any such breach;

 

(iii)  

Any act or intentional omission by the Executive involving dishonesty or moral turpitude;

 

(iv)  

The Executive’s material failure to adequately perform his duties and responsibilities as such duties and responsibilities are, from time to time, in the Company’s discretion, determined and after reasonable notice of, and a reasonable opportunity to cure within thirty days of such notice (if such breach is curable), any such breach; or

 

(v)  

Any intentional independent act by the Executive that would cause the Company significant reputational injury.

 

b.  

Death or Disability.  This Agreement and the Company’s obligations under this Agreement will terminate upon the death or total disability of the Executive.  For purposes of this Section 5.b, “total disability” means that for a period of six consecutive months the Executive is incapable of substantially fulfilling the duties set forth in this Agreement because of physical, mental or emotional incapacity as determined by an independent physician mutually acceptable to the Company and the Executive.  If the Agreement terminates due to the death or disability of the Executive, the Company will pay the Executive or his legal representative any unpaid accrued Base Salary through the date of termination of employment (or, if terminated as a result of a disability, until the date upon which any disability policy maintained pursuant to Section 4 begins payment of benefits) plus any other compensation that may be earned and unpaid.

 

c.  

Voluntary Termination.  The Executive may elect to terminate this Agreement by delivering written notice to the Company sixty days prior to the date on which termination is elected; provided, however, that in the event of such termination, the Company may elect to accelerate the date of such termination to an earlier date if it so elects.  If the Executive voluntarily terminates his employment the Company will have no further obligations to make payments under this Agreement, except that the Company will pay to the Executive any unpaid accrued Base Salary through the date of voluntary termination of employment.  The Executive will not be entitled to any annual bonus payments other than those earned or becoming due and payable prior to the voluntary termination date.

 

 


 

 

 

 

d.  

Termination Without Cause.  If the Executive’s employment is terminated for any reason other than by death, disability, for Cause, or due to the Executive’s voluntary resignation of employment, the Company will have no further obligation to make payments under this Agreement, except (i) to the extent set forth in the award agreement attached hereto as Exhibit B with respect to the restricted Company common stock and (ii) that the Company will pay to the Executive an amount equal to 200% of then-current Base Salary in one lump sum payment on the forty-fifth day after the date of termination of the Executive’s employment, which shall be conditioned upon the delivery by the Executive of a release of claims reasonably acceptable to the Company that shall have not been revoked by the Executive pursuant to any revocation rights afforded by applicable law.

 

e.  

Compliance with Section 409A.  With respect to the payments provided by this Agreement upon termination of the Executive’s employment (the “Cash Severance Amount”), in the event the aggregate portion of the Cash Severance Amount payable during the first six months following the date of termination of the Executive’s employment would exceed an amount (the “Minimum Amount”) equal to two times the lesser of (i) the Executive’s annualized compensation as in effect for the calendar year immediately preceding the calendar year during which the Executive’s termination of employment occurs, or (ii) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Internal Revenue Code of 1986, as amended (the “Code”), for the calendar year during which the Executive’s termination of employment occurs, then, to the extent necessary to avoid the imposition of additional income taxes or penalties or interest on the Executive under Section 409A of the Code, (x) the Company shall pay during the first six months following the date of termination of the Executive’s employment, at the time(s) and in the form(s) provided by the applicable sections of this Agreement, a portion of the Cash Severance Amount equal to the Minimum Amount, and (y) the Company shall accumulate the portion of the Cash Severance Amount that exceeds the Minimum Amount and that the Executive would otherwise be entitled to receive during the first six months following the date of termination of the Executive’s employment and shall pay such accumulated amount to the Executive in a lump sum on the first day of the seventh month following the date of termination of the Executive’s employment, and (z) the Company shall pay the remainder of the Cash Severance Amount, if any, on and after the first day of the seventh month following the date of termination of the Executive’s employment at the time(s) and in the form(s) provided by the applicable section(s) of this Agreement.

 

f.  

Compliance with Section 280G. If any payment or benefit due to the Executive from the Company or its subsidiaries or affiliates, whether under this Agreement or otherwise, would (if paid or provided) constitute an Excess Parachute Payment (as such term is used in Section 280G(b)(i) of the Code), then notwithstanding any other provision of this Agreement or any other commitment of the Company, that payment or benefit will be limited to the minimum extent necessary to ensure that no portion thereof will fail to be tax-deductible to the Company by reason of Section 280G of the Code.  The determination of whether any payment or benefit would (if paid or provided) constitute an Excess Parachute Payment will be made by the Company, in good faith and in its sole discretion.  If multiple payments or benefits are subject to reduction under this Section 5.f, such payments or benefits will be reduced in the order that maximizes the Executive’s economic position (as determined by the Company in good faith, in its sole discretion).  If, notwithstanding the initial application of this Section 5.f, the Internal Revenue Service determines that any payment or benefit provided to the Executive constituted an Excess Parachute Payment, this Section 5.f will be reapplied based on the Internal Revenue Service’s determination and the Executive will be required to promptly repay to the Company any amount in excess of the payment limit of this Section 5.f.

 

g.  

Return of Company Property.  Upon the termination of the Executive’s employment with the Company, the Executive shall leave with or promptly return to the Company all originals and copies of any documents, records, notebooks, files, correspondence, reports, memoranda or similar materials of or containing proprietary information, or other materials or property of any kind belonging to the Company (including keys and other tangible personal property of the Company), then in the Executive’s possession, whether prepared by the Executive or by others.

 

 

6.

Discoveries, Inventions, Improvements and Other Intellectual Property.  The Executive acknowledges that all worldwide rights to each discovery, invention or improvement which the Executive or the Company may develop, in whole or in part, during the term of this Agreement, whether patented or unpatented, which relate to or pertain to the business, functions or operations of the Company or its subsidiaries, and arise (wholly or in part) from the efforts of the Executive during the term hereof, will be the exclusive property of the Company, regardless of whether such discoveries, inventions, improvements and other intellectual property was developed or worked on while the Executive was engaged in employment or whether the Executive developed or worked on such intellectual property on the Executive’s own time.  The Company will own all rights to any copy, translation, modification, adaptation or derivation thereof and any product based thereon.  The Executive acknowledges that a violation of this Section 6 would lead to irreparable injury to the Company for which monetary damages could not adequately compensate and further acknowledges that in the event of such a breach, the Company shall be entitled to injunctive relief along with other such remedies the Company may have.

 

7.

Restrictive Covenants.

 

 

a.

Corporate Opportunity.  During the term of the Executive’s employment by the Company, the Executive shall submit to the Board all business, commercial and investment opportunities or offers presented to Executive or of which Executive becomes aware which relate to the scope of the current businesses engaged in by the Company (“Corporate Opportunities”). Unless approved by the Board in writing, the Executive shall not accept or pursue, directly or indirectly, any Corporate Opportunities on the Executive’s own behalf.

 

 

b.

Competition with the Company.  The Executive covenants and agrees that the Executive will not, directly or indirectly (whether as a sole proprietor, partner, director, officer, employee or in any other capacity as principal), (i) during the one year period following the voluntary termination of his employment or the termination of his employment by the Company for Cause, compete with the Company within the scope of the Company’s business of real estate in the Volusia County, Florida, area, or by rendering services to any entity engaged in a joint venture or similar project with the Company, if any, and (ii) during the six month period following the voluntary termination of his employment or the termination of his employment by the Company for Cause, compete with the Company within the scope of any other then-current business of the Company, if any.

 

8.  

Change in Control.

 

a.  

For the purposes of this Agreement, a “Change in Control” means any of the following events: (i) any person (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, (the “Exchange Act”)) or group (as such term is defined in Sections 3(a)(9) and 13(d)(3) of the Exchange Act), other than a subsidiary of the Company or any employee benefit plan (or any related trust) of the Company or a subsidiary, becomes the beneficial owner of 50% or more of the Company’s outstanding voting shares and other outstanding voting securities that are entitled to vote generally in the election of directors (“Voting Securities”); or (ii) approval by the shareholders of the Company and consummation of either of the following: (A) a merger, reorganization, consolidation or similar transaction (any of the foregoing, a “Merger”) as a result of which the persons who were the respective beneficial owners of the outstanding common stock and/or the Voting Securities immediately before such Merger are not expected to beneficially own, immediately after such Merger, directly or indirectly, more than 50% of, respectively, the outstanding voting shares and the combined voting power of the voting securities resulting from such merger in substantially the same proportions as immediately before such Merger; or (B) a plan of liquidation of the Company or a plan or agreement for the sale or other disposition of all or substantially all of the assets of the Company.

 

b.  

The Company and the Executive agree that, if the Executive is in the employ of the Company on the date on which a Change in Control occurs (the “Change in Control Date”), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change in Control Date and ending on the termination of his employment, to exercise such authority and perform such executive duties (including assistance in any transition matters designated by the Board following such Change in Control) as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change in Control Date.

 

c.  

After the Change in Control Date, the Company will (i) continue to honor the terms of this Agreement, including as to Base Salary and other compensation set forth in Section 3, and (ii) continue employee benefits as set forth in Section 4 at levels in effect on the Change in Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).

 

d.  

If after the Change in Control Date, (i) the Executive’s employment is terminated by the Company other than for Cause (as defined in Section 5.a above), or (ii) the Executive voluntarily terminates employment for Good Reason (as defined below), then the Executive will receive separation pay in an amount equal to 200% of then-current Base Salary in one lump sum payment on the forty-fifth day after the date of termination of the Executive's employment, which shall be conditioned upon the delivery by the Executive of a release of claims reasonably acceptable to the Company that shall have not been revoked by the Executive pursuant to any revocation rights afforded by applicable law.  “Good Reason” shall mean a material reduction in the Executive’s compensation or employment related benefits, or a material change in the Executive’s status, working conditions or management responsibilities. The Executive's termination of employment will not constitute a termination for Good Reason unless the Executive first provides written notice to the Company of the existence of the Good Reason within sixty days following the effective date of the occurrence of the Good Reason, and the Good Reason remains uncorrected by the Company for more than thirty days following such written notice of the Good Reason from the Executive to the Company, and the effective date of the Executive’s termination of employment is within one year following the effective date of the occurrence of the Good Reason.

 

9.  

Assignability. The rights and obligations of the Company under this Agreement will inure to the benefit of and be binding upon the successors and assigns of the Company, provided that such successor or assign will acquire all or substantially all of the assets and business of the Company.  The Executive’s rights and obligations under this Agreement may not be assigned or alienated and any attempt to do so by the Executive will be void and constitute a material breach hereunder.

 

10.

Non-Coercion.  The Executive represents and agrees that the Executive has not been pressured, misled, or induced to enter into this Agreement based upon any representation by the Company or its agents not contained herein.  The Executive represents that he has entered into this Agreement voluntarily, and after having the opportunity to consult with representatives of his own choosing and that his/her agreement is freely given.

 

11.

Severability.   The provisions of this Agreement constitute independent and separable covenants which shall survive termination of employment or expiration of this Agreement.  Any section, paragraph, phrase or other provision of this Agreement that is determined by a court of competent jurisdiction to be unconscionable or in conflict with any applicable statute or rule, shall be deemed, if possible, to be modified or altered so that it is not unconscionable or in conflict with or, if that is not possible, then it shall be deemed omitted from this Agreement.  The invalidity of any portion of this Agreement shall not affect the validity of the remaining portions.

 

12.

Prior Employment Agreements.  The Executive represents that he has not executed any agreement with any previous employer which may impose restrictions on his employment with the Company.

 

13.

Notice.  Notices given pursuant to the provisions of this Agreement will be sent by certified mail, postage prepaid, by overnight courier or facsimile to the following addresses:

 

If to the Company:

 

Consolidated-Tomoka Land Co.

1530 Cornerstone Boulevard, Suite 100

Daytona Beach, FL 32117

Fax:                                                      

 

If to the Executive:

 

John P. Albright

1435 Eagle Bend Drive

Southlake, TX 76092 

Fax:                                                         

 

Either party may, from time to time, designate any other address to which any such notice to it or him will be sent.  Any such notice will be deemed to have been delivered upon the earlier of actual receipt or four days after deposit in the mail, if by certified mail.

 

14.

Miscellaneous.

 

a.  

Governing Law.  This Agreement will be governed by and construed in accordance with the laws of the state of Florida.

 

b.  

Venue.  Any action filed to enforce this Agreement will be filed in Volusia County, Florida or the United States District Court for the Middle District of Florida.

 

c.  

Waiver/Amendment.  The waiver by any party to this Agreement of a breach of any provision hereof by any other party will not be construed as a waiver of any subsequent breach by any party.  No provision of this Agreement may be terminated, amended, supplemented, waived or modified other than by an instrument in writing signed by the party against whom the enforcement of the termination, amendment, supplement, waiver or modification is sought.

 

d.  

Attorney’s Fees.  In the event any action is commenced to enforce any provision of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs, and expenses.

 


 

 

 

 

 

e.

Disputes.  Nothing in this Section 14.e shall preclude a party from initiating an action for temporary injunctive relief to temporarily enjoin any conduct threatening imminent and irreparable injury.  In all other circumstances in which a dispute arises hereafter between the parties, the parties agree to resolve all disputes through final and binding arbitration in Volusia County, Florida, by a single arbitrator in accordance with the Rules of the American Arbitration Association. The parties hereby expressly waive any and all right to a trial by jury with respect to any action, proceeding or other litigation resulting from or involving the enforcement of this Agreement or any other matter relating to the Executive’s employment.

 

 

f.

Entire Agreement.  This Agreement has been subject to substantial negotiations between the parties and thus represents the joint product of those negotiations between the parties and supersedes all previous understandings or agreements, whether written or oral.  Any uncertainty or ambiguity shall not be construed for or against any other party based on attribution of any drafting to any party.  Furthermore, this Agreement represents the entire agreement between the parties and shall not be subject to modification or amendment by an oral representation, or any other written statement by either party, except for a dated written amendment to this Agreement signed by the Executive and an authorized representative of the Company.

 

 

g.

Withholding. All payments (or transfers of property) to the Executive will be subject to tax withholding to the extent required by applicable law.

 

 

h.

Counterparts.  This Agreement may be executed in counterparts, all of which will constitute one and the same instrument.

 

[signature page follows]

 

 

 

 

 

 

IN WITNESS WHEREOF, the Company and the Executive have executed this Agreement as of the day and year first above written.

 

 

EXECUTIVE:

 

                                                                                                       /s/John P. Albright_________________________________

John P. Albright

 

 

COMPANY:

 

Consolidated-Tomoka Land Co.,

a Florida corporation

 

By: /s/ Jeffry B. Fuqua                                                                     

Name:  Jeffry B. Fuqua                                                         

Title:   Chairman of the Board                                                      

 

 

 

 

 

 

Exhibit A

 

 

Form of Stock Option Award Agreement

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit B

 

 

Form of Performance-Based Restricted Stock Award Agreement

 

 

 



 

 

 

 

 

 

AGREEMENT

 

THIS AGREEMENT (the “Agreement”) is made and entered into by and between CONSOLIDATED TOMOKA LAND CO. (“Consolidated Tomoka” or the “Company”), the address of which is 1530 Cornerstone Boulevard, Suite 100, Daytona Beach, Florida 32117, and WILLIAM H. MCMUNN (“Mr. McMunn” or the “employee”), whose address is 3 South Ravensfield Lane, Ormond Beach, FL 32174, and his heirs, beneficiaries and personal representatives.

RECITALS

 

WHEREAS, Mr. McMunn is currently employed by Consolidated Tomoka as its Chief Executive Officer (CEO); and

 

WHEREAS, Mr. McMunn desires to retire and as a result voluntarily resign from his employment with Consolidated Tomoka on the terms and provisions provided herein; and

 

WHEREAS, Consolidated Tomoka is willing for Mr. McMunn to retire and resign from his employment as CEO of Consolidated Tomoka on the terms and provisions provided herein.

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and promises of the parties, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as set forth below.

 

1.           Employment and Retirement of Employee.

 

(a)           Employment and Retirement of Employee; Payment of Early Retirement Incentive. By execution of this Agreement, Mr. McMunn irrevocably elects to retire and to resign from the employment of Consolidated Tomoka and to relinquish the positions of Chief Executive Officer and President, and to retire from all other offices, titles, and directorships he may hold with Consolidated Tomoka’s subsidiaries, all effective December 31, 2011 (“Effective Date of Retirement”).  (Notwithstanding, in the event a new CEO is hired, then at the request of the Board of Directors (the “Board”) in order to effect an orderly transition, Mr. McMunn shall relinquish the titles of President and CEO on a date specified by the Board.)  Between the execution of this Agreement and the Effective Date of Retirement, Mr. McMunn will continue to perform the duties and responsibilities associated with his position as CEO until his replacement is hired and his or her term of employment begins (including, without limitation, providing transition assistance for any newly hired CEO, acting as qualifying agent for the Company’s brokerage and construction licenses, and such other duties and responsibilities as may be assigned to him by the board of directors of Consolidated Tomoka commensurate with his position), and be paid his current annual salary ($294,816) and receive his current benefits through the “Effective Date of Retirement”.  Notwithstanding the foregoing, Mr. McMunn will not participate in any stock option grants for the year 2011 and thereafter, nor will he participate in the 2011 cash bonus plan.  Under the terms set forth in this Agreement and in consideration of Mr. McMunn’s commitments set forth below, Consolidated Tomoka shall pay to Mr. McMunn as an early retirement incentive the sum of One Hundred Fifty-eight Thousand Seven Hundred Forty-seven Dollars and Twelve cents ($158,747.12) plus reimbursement for any unused vacation days, on December 29, 2011 (“Early Retirement Incentive”). From these gross wages, Consolidated Tomoka will make all normal and required withholdings and deductions and such other deductions that Mr. McMunn may request. The Early Retirement Incentive will be included as wages in the W-2 issued by Consolidated Tomoka for Mr. McMunn for tax year 2011. In addition, Consolidated Tomoka agrees that it will pay the total monthly premium for continued major medical/hospitalization insurance coverage for Mr. McMunn pursuant to COBRA for the eight (8) month period beginning January 1, 2012, and ending August 31, 2012; provided, however, Mr. McMunn timely elects continuation coverage under COBRA. In addition, Consolidated Tomoka will transfer to Mr. McMunn title to his company furnished automobile on the Effective Date of Retirement. During the remainder of Mr. McMunn’s employment, his employment may be terminated pursuant to Section 3 below.

 

(b)           Option to Extend Date of Retirement. At the option (“Option”) of Consolidated Tomoka, Consolidated Tomoka may extend the Effective Date of Retirement and continue the employ of Mr. McMunn to June 30, 2012 (which date should the Option be exercised is hereafter referred to as the Effective Date of Retirement), if necessary to facilitate an orderly transition to a new chief executive officer. Consolidated Tomoka must exercise the Option not later than December 1, 2011, by written notice to Mr. McMunn. All terms, conditions, and benefits of Mr. McMunn’s employment (including but not limited to the payment due on December 29, 2011) shall continue unchanged during any extension of Mr. McMunn’s employment with Consolidated Tomoka pursuant to any exercise of the Option.

 

    2.           Retention as Consultant.

 

(a)           Retention as Consultant and Consulting Term. Subject to the terms and conditions set forth herein, Consolidated Tomoka agrees to retain Mr. McMunn to render consulting and strategic advisory services (“Services”) in connection with the business, prospects, relationships, and financial and regulatory compliance initiatives of Consolidated Tomoka as reasonably requested by Consolidated Tomoka from time to time by its Board Chairman and/or Chief Executive Officer, and Mr. McMunn hereby agrees to accept such engagement. The term of Mr. McMunn’s engagement as a consultant (the “Consulting Term”) shall commence on the Effective Date of Retirement and shall continue until (i) the twelve (12) month anniversary of the Effective Date of Retirement, or (ii) terminated pursuant to Section 3 below.

 

 

 

 

 

 

(b)           Performance. During the Consulting Term, Mr. McMunn will perform the Services in a professional, competent and ethical manner.  It is the parties’ intent that Mr. McMunn average thirty (30) hours monthly in the performance of such services, however, in no event shall he exceed 360 hours in the aggregate during the Consulting Term. Mr. McMunn may render the Services in any manner that does not interfere with his ability to effectively perform the Services, including, without limitation, via telephone, email or at the offices of Consolidated Tomoka. Mr. McMunn’s engagement is non exclusive and he may pursue other business interests that do not interfere with his ability to perform the Services or violate any ethical obligations owed to Consolidated Tomoka. Consolidated Tomoka and Mr. McMunn specifically intend and agree that his engagement as a consultant be in the nature of an independent contractor relationship.

 

(c)           Compensation. In consideration for the Services and other covenants and obligations of Mr. McMunn hereunder, Consolidated Tomoka shall pay Mr. McMunn a consultancy fee during the Consulting Term equal to $12,500 monthly payable in advance on the first business day of each calendar month. Except as set forth in 2(d) or in writing between the parties, each of Consolidated Tomoka and Mr. McMunn shall bear their own costs and expenses in performing their obligations under this section of this Agreement. As Mr. McMunn will be an independent contractor during the Consulting Term, he will not be eligible to receive any Company provided benefits.

 

(d)           Expenses. Consolidated Tomoka will reimburse Mr. McMunn for all reasonable costs and expenses incurred in rendering the Services in accordance with Consolidated Tomoka’s standard reimbursement policies.

 

(e)           Tax Obligations. Mr. McMunn, as an Independent Contractor shall be solely responsible for all income and other tax liabilities or obligations resulting from the Services rendered pursuant to this Agreement and will be issued a 1099 tax form.

 

3.           Termination of Employment or Consulting Term.

 

(a)           Termination for Cause. Mr. McMunn’s employment or the Consulting Term may be terminated at any time by Consolidated Tomoka with Cause upon written notice of termination delivered to Mr. McMunn. For purposes of this Agreement, “Cause” shall mean:

 

(i)           Mr. McMunn’s arrest or conviction for, plea of nolo contendere to, or admission of the commission of, any act of fraud, misappropriation, or embezzlement, or a criminal felony involving dishonesty or moral turpitude; or

 

(ii)            a breach by Mr. McMunn of any material provision of this Agreement provided Mr. McMunn is given reasonable notice of, and a reasonable opportunity to cure, any such breach; or

 

(iii)           any act or intentional omission by Mr. McMunn involving dishonesty or moral turpitude; or

 

(iv)           any act or intentional omission by Mr. McMunn which would cause Consolidated Tomoka significant reputational injury, such as defamation, libel, and slander.

 

(b)           Death or Disability of Mr. McMunn. This Agreement shall terminate automatically upon the death of Mr. McMunn or upon Mr. McMunn becoming disabled such that Mr. McMunn cannot perform the essential functions of his employment position or the essential requirements of the consultant Services with or without reasonable accommodation. Nothing contained in this subsection shall affect Mr. McMunn’s eligibility for employee disability benefits under an applicable employee disability insurance plan.

 

4.           Waiver and Release. Mr. McMunn hereby waives, and releases Consolidated Tomoka (including each of its past and present related entities including affiliated associations, parent companies, employee benefit plans, including the 401(k) Plan, insurers, subcontractors, successors and assigns, and any and all of its and their past, current, and future officers, directors, employees, and agents and all persons acting by, through, under, or in concert with any of them, both individually and as agents or representatives of these entities) from, all claims, rights, administrative charges, and causes of action, both known and unknown, in law or in equity, of any kind whatsoever, that Mr. McMunn has or could have made against Consolidated Tomoka through the date of signing this Agreement. Mr. McMunn waives, and releases Consolidated Tomoka from, all claims, rights, charges and causes of action relating to or arising out of Mr. McMunn’s employment with, conditions of employment with, compensation by, or separation and/or termination of employment from Consolidated Tomoka, including, without limitation, any claims, rights, charges or causes of action arising under Title VII of the Civil Rights Act of 1964, as amended; the Age Discrimination in Employment Act of 1967, as amended; the Older Workers Benefit Protection Act of 1990; Executive Order Nos. 11246 and 11478; the Equal Pay Act of 1963, as amended; the Retirement Income Security Act of 1974, as amended; the Rehabilitation Act of 1973, as amended; the Americans With Disabilities Act of 1990, as amended; the Family and Medical Leave Act of 1993; the Fair Labor Standards Act of 1938, as amended; the Occupational Safety and Health Act of 1970, as amended; the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), as amended; the Florida Civil Rights Act of 1992, as amended; any Florida or federal Whistleblower laws; Florida Statutes, Sec.112.3187, 440.205, and 448.102 and any other federal or state law or local ordinance, including any suit in tort (including negligence and personal injury) or contract (whether oral, written or implied), or any other common law or equitable basis of action, except for any claim which may not lawfully be waived in this manner or a claim based upon any obligation of Consolidated Tomoka under this Agreement.

 

 

 

 

 

 

5.           Mutual Non-Disparagement. Except as required by law, Mr. McMunn and Consolidated Tomoka agree to refrain from expressing (or causing others to express) to any third party, any derogatory or negative opinions, comments, statements, or any other action of such a nature concerning Mr. McMunn and Consolidated Tomoka, including to friends, current or former employees, elected or appointed government officials, business associates, members of any bar association, customers, the press, or vendors or suppliers of Consolidated Tomoka.

 

6.           Survival of Non-Disclosure Agreement. Notwithstanding anything to the contrary herein, the terms, provisions and obligations set forth in that certain Consolidated Tomoka Land Co. Proprietary Model Non Disclosure Agreement dated May 10, 2010, between the Company and Mr. McMunn shall survive the execution and delivery of this Agreement and the consummation of the transactions described herein.

 

7.           Notices. All notices and other communications given or made pursuant hereto shall be in writing and delivered by hand or sent by registered or certified mail (postage prepaid, return receipt requested) or by nationally recognized overnight air courier service and shall be deemed to have been duly given or made as of the date delivered if delivered personally, or if mailed, on the third business day after mailing (on the first business day after mailing in the case of a nationally recognized overnight air courier service) to the parties at the following:

 

If to Consolidated Tomoka:

 

Consolidated-Tomoka Land Co.

1530 Cornerstone Boulevard, Suite 100

Daytona Beach, Florida 32117

 

If to Mr. McMunn:

 

William H. McMunn

3 South Ravensfield Lane

Ormond Beach, FL 32174

 

 

8.           Severability. If a court of competent jurisdiction invalidates any provision of this Agreement, then all of the remaining provisions of this Agreement shall continue unabated and in full force and effect.

 

9.           Entire Agreement. This Agreement contains the entire understanding and agreement between the parties and shall not be modified or superseded except in writing by the parties to this Agreement. Except as specifically provided herein, this Agreement supersedes and renders null and void any previous agreements or contracts, whether written or oral, between Mr. McMunn and Consolidated Tomoka but shall not serve to waive or modify any vested rights or benefits associated with his employment by Consolidated Tomoka (including but not limited to his 401(k) account and any vested benefits under Consolidated Tomoka’s defined benefit or deferred compensation plans or any stock option grants received by Mr. McMunn prior to the date of the execution of this Agreement by Mr. McMunn).  Consolidated Tomoka and Mr. McMunn specifically recognize that Mr. McMunn is a participant in Consolidated-Tomoka Land Co. Deferred Compensation Plan for Officers and Key Employees and that he is not waiving, and is entitled to, whatever benefits that Plan provides for him as an eligible employee.

 

10.           Governing Law. The laws of the State of Florida shall govern this Agreement.

 

11.           Arbitration; Attorney’s Fees and Costs. In the event a dispute arises out of this Agreement, including but not limited to any alleged termination for cause, the parties agree to resolve all disputes through final and binding arbitration in Volusia County, Florida, in accordance with the Rules of the American Arbitration Association. The prevailing party in any action to enforce or construe the terms and provisions of this Agreement will be entitled to an award of reasonable attorneys’ fees and costs from the non prevailing party.

 

12.           Opportunity to Consider and Confer. Mr. McMunn acknowledges that he:

 

(a)           has had the opportunity to, and is hereby specifically advised to, consult with an attorney of his choice;

 

(b)           has been given a reasonable period of up to twenty-one (21) calendar days in which to consider signing this Agreement;

 

(c)           fully understands and is in complete agreement with all of the terms of this Agreement;

 

(d)           has signed this Agreement freely and voluntarily;

 

(e)           has not relied on any representation or statement made by Consolidated Tomoka or any of Consolidated Tomoka’s agents or employees, except those set forth in this Agreement.

 

(f)           This Agreement may be revoked by either party within seven (7) days after signing by sending a notice of revocation in the manner required by Section 7.

 

 

 

 

 

 

IN WITNESS WHEREOF, and intending to be legally bound hereby, Consolidated Tomoka and Mr. McMunn hereby execute this Agreement by signing below voluntarily and with full knowledge of the significance of all of its terms and provisions.

 

 

 

CONSOLIDATED-TOMOKA LAND CO.

 

 

By:   /s/William J. Voges                                                                        

William J. Voges, Chairman of the Board

 

       /s/Vicky R. Jones                                                                           

       Witness

 

By: /s/William H. McMunn                                                                   

      William H. McMunn

 

    /s/Sharon H. Romano                                                                      

       Witness

 

Signed and effective as of February 8, 2011

 

 

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EX-9.1 2 amendmentoagreement1.htm AMENDMENT NO. 1 TO AGREEMENT BETWEEN WILLIAM H. MCMUNN AND CONSOLIDATED-TOMOKA LAND CO. 

AMENDMENT NO. 1 TO AGREEMENT

 

This Amendment No. 1 (this “Amendment”) to the Agreement between Consolidated-Tomoka Land Co. (“Consolidated Tomoka” or the “Company”) and William H. McMunn (“Mr. McMunn” or the “employee”) dated February 8, 2011 (the “Agreement”) is entered into and effective as of November 28, 2011, by and between the Company and Mr. McMunn. The term “Company” or “Consolidated Tomoka” when used in this Agreement, includes Consolidated Tomoka, its affiliates, predecessors and successors in interest, assignees, parents, subsidiaries, divisions, insurers and related companies and entities, and their past, present and future officers, owners, directors, supervisors, managers, employees, agents, attorneys and representatives.   A copy of the fully executed “Agreement” referenced herein is attached hereto as Exhibit A.

 

 

 

RECITALS

 

WHEREAS, the Company and Mr. McMunn entered into the Agreement attached as Exhibit A; and,

 

WHEREAS, the Company hired a new CEO and, as a result, Mr. McMunn relinquished the title of President and CEO effective July 31, 2011; and,

 

WHEREAS, in order to effect an orderly transition, the Company and Mr. McMunn agree to amend the Agreement as more particularly set forth herein.

 

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as set forth below.

 

1.           Amendments.

 

1.1. Section 1 of the Agreement is hereby deleted and replaced in its entirety with the following:

 

1.           Employment and Retirement of Employee; Payment of Early Retirement Incentive.  By execution of this Agreement, Mr. McMunn irrevocably elects to retire and to resign from the employment of the Company and to retire from all other offices, titles, and directorships he may hold with the Company’s subsidiaries effective November 30, 2011 (the “Effective Date of Retirement”).  Under the terms and conditions set forth in this Agreement and in consideration of Mr. McMunn’s commitments set forth below, the Company shall pay to Mr. McMunn a one-time payment in the amount of $382,487.65 less applicable taxes and withholdings on the Effective Date of Retirement (“Early Retirement Incentive”).  The Company agrees to use the Aggregate Method for calculating the above withholdings.  The parties agree that the Early Retirement Incentive ($382,487.65) will be considered wages and the Company will issue an IRS Form W-2 for Mr. McMunn for tax year 2011 regarding the above payment.  Mr. McMunn will not participate in any stock option grants for the year 2011 and thereafter, nor will he participate in the 2011 cash bonus plan.  The Company agrees to that for purposes of COBRA coverage, a COBRA notice advising Mr. McMunn of his ability to retain a continuation of health insurance shall be issued on the effective date of retirement.

 

In addition to the Early Retirement Incentive, the Company will transfer to Mr. McMunn title to his company furnished automobile on the Effective Date of Retirement.

 

Upon the Effective Date of Retirement, Mr. McMunn shall provide, or promptly return to, the Company, all originals and copies of any documents, records, notebooks, files, correspondence, reports, memoranda or similar materials of or containing any proprietary information, or other materials and documents, whether prepared by Mr. McMunn or others, or property of any kind belonging to the Company including keys, membership cards and locker keys at LPGA International, Company credit card, his Company provided iPhone, and other tangible personal property of the Company then in Mr. McMunn's possession.  After the Effective Date of Retirement, Mr. McMunn agrees to reasonably cooperate with the Company on any pending third party legal matters.  Mr. McMunn shall have the right to retain his current cell phone number for his personal use.

 

The parties agree that this Amendment or the original Agreement shall not serve to waive or modify any vested rights or benefits associated with Mr. McMunn’s employment by the Company (including but not limited to his 401(k) account and any vested benefits under the Company’s Defined Benefits Plan, Deferred Compensation Plan or any stock option grants received by Mr. McMunn prior to the date of the execution of the Agreement).  The Company and Mr. McMunn specifically recognize that Mr. McMunn is a participant in the Consolidated-Tomoka Land Co. Deferred Compensation Plan for Officers and Key Employees and that he is not waiving, and is entitled to, whatever benefits that Plan provides for him as an eligible retired employee.

 
 

1.2. Sections 2 and 3 of the Agreement are hereby amended to delete such sections in their entireties and intentionally leave such sections blank.

 

1.3. Section 5 of the Agreement is hereby deleted and replaced in its entirety with the following:

 

5.           Mutual Non-Disparagement.  Except as required by law, Mr. McMunn and Consolidated Tomoka mutually agree to refrain from expressing (or causing others to express) to any person, any derogatory or negative opinions, comments, statements, or any other action of such a nature concerning Mr. McMunn and Consolidated Tomoka and its subsidiaries and affiliates and their respective officers, directors, employees, shareholders, or executive officers or directors of any shareholder, managers and members (including those of LPGA International Golf Club), including any derogatory or negative opinions, comments, statements or any other action of such a nature directed to friends, current or former employees, elected or appointed government officials, business associates of both parties, members of any bar association, customers, the press, or vendors or suppliers of either Consolidated Tomoka or Mr. McMunn.

 

During the period commencing on the Effective Date of Retirement and ending on the second anniversary thereof, if Mr. McMunn serves as an elected or appointed official of any governmental or quasi-governmental authority of any kind that has jurisdiction over any business of the Company or any of its subsidiaries, Mr. McMunn will abstain and recuse himself from the consideration of any action of such governmental or quasi-governmental authority, if permitted by applicable by law, if such matter directly applies to, or relates only  to, the Company or any subsidiary thereof. This provision does not apply to any issue or matter that impacts the Company and other third parties equally provided that such action does not have a significant negative impact on the interests of the Company.

 

2.   Resignation as Director.  As of the Effective Date of Retirement, Mr. McMunn also agrees to resign from the Board of Directors of the Company.  Mr. McMunn and the Company acknowledge that such resignation is not the result of any disagreement on any matter between the parties.

 

3.   Resignation from Ancillary Positions.  On the Effective Date of Retirement, Mr. McMunn hereby irrevocably resigns as contractor of record for Indigo Development LLC and as broker of record for Indigo Commercial Realty Inc. The parties agree to execute and deliver such instruments and documents as may reasonably be required from time to time in connection with such matters.

 

Mr. McMunn serves as the Company designee on Team Volusia, CEO Business Alliance, VCARD, AFCD and the Halifax Regional Chamber of Commerce. On the Effective Date of Retirement, Mr. McMunn will resign (and execute and deliver such instruments and documents as the Company may reasonably request to effect such resignation) from these positions.  Mr. McMunn is free to rejoin and serve on any of these organizations independent of the Company.

 

4.            Indemnification.  The Company and Mr. McMunn acknowledge that Articles VI and X of the articles of incorporation of the Company and Section 6.4 of the bylaws of the Company set forth the terms and conditions of indemnification of Mr. McMunn with respect to his service as a director, officer, employee or agent of the Company or its subsidiaries during the term of his employment and as a director of the Company. Nothing in this Amendment, the Agreement or in any other written or oral conversation waives, modifies, abridges Mr. McMunn’s rights under these articles and bylaws.  The Company warrants that in addition it has a directors’ and officers’ liability insurance policy and that Mr. McMunn is an insured of that policy.

 

5.            Effective Date of Retirement.   Unless agreed to in writing by the parties otherwise, the Effective Date of Retirement shall be 5:00 PM EST November 30th, 2011.

 

6.            Stockholders Rights.  Nothing in this Amendment or the Agreement waives or limits Mr. McMunn’s legal rights as a shareholder of the Company after the Effective Date of Retirement.

 

7.            Capitalized Terms.  Capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Agreement (as in effect immediately prior to the effectiveness of this Amendment).

 

 

 

 

 

 

8.           Governing Law.  The laws of the State of Florida shall govern this Amendment.

 

9.           Effect.  Except as modified by this Amendment No. 1, all provisions of the Agreement remain in full force and effect, as if set forth herein.

 

10.        Revocation Period.  This Amendment may be revoked by either party within seven (7) days after signing by sending a notice of revocation in the manner required by Section 7 of the Agreement. Notwithstanding anything contained herein to the contrary, the parties acknowledge and agree that payment of the Early Retirement Incentive, transfer of the title to the company furnished automobile to Mr. McMunn and Mr. McMunn’s resignation from the Board of Directors will not occur prior to the expiration of this revocation period.

 

11.         Time for Acceptance.  This offer will expire unless accepted by 5:00 p.m., Monday, November 28, 2011.

 

IN WITNESS WHEREOF, the Company and Mr. McMunn have caused this Amendment to be executed and delivered as of the date first written above.

 

 

Consolidated-Tomoka Land Co.

 

 

By:/s/John P. Albright

John P. Albright

President and CEO

 

 

 

 

/s/William H. McMunn

William H. McMunn

 

 

 

 

 

 
 

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EXHIBIT A

 

AGREEMENT

 

 

THIS AGREEMENT (the “Agreement”) is made and entered into by and between CONSOLIDATED TOMOKA LAND CO. (“Consolidated Tomoka” or the “Company”), the address of which is 1530 Cornerstone Boulevard, Suite 100, Daytona Beach, Florida 32117, and WILLIAM H. MCMUNN (“Mr. McMunn” or the “employee”), whose address is 3 South Ravensfield Lane, Ormond Beach, FL 32174, and his heirs, beneficiaries and personal representatives.

 

 

RECITALS

 

 

WHEREAS, Mr. McMunn is currently employed by Consolidated Tomoka as its Chief Executive Officer (CEO); and

 

 

WHEREAS, Mr. McMunn desires to retire and as a result voluntarily resign from his employment with Consolidated Tomoka on the terms and provisions provided herein; and

 

 

WHEREAS, Consolidated Tomoka is willing for Mr. McMunn to retire and resign from his employment as CEO of Consolidated Tomoka on the terms and provisions provided herein.

 

 

AGREEMENT

 

 

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and promises of the parties, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as set forth below.

 

 

1. Employment and Retirement of Employee.

 

 

    (a) Employment and Retirement of Employee; Payment of Early Retirement Incentive. By execution of this Agreement, Mr. McMunn irrevocably elects to retire and to resign from the employment of Consolidated Tomoka and to relinquish the positions of Chief Executive Officer and President, and to retire from all other offices, titles, and directorships he may hold with Consolidated Tomoka’s subsidiaries, all effective December 31, 2011 (“Effective Date of Retirement”). (Notwithstanding, in the event a new CEO is hired, then at the request of the Board of Directors (the “Board”) in order to effect an orderly transition, Mr. McMunn shall relinquish the titles of President and CEO on a date specified by the Board.) Between the execution of this Agreement and the Effective Date of Retirement, Mr. McMunn will continue to perform the duties and responsibilities associated with his position as CEO until his replacement is hired and his or her term of employment begins (including, without limitation, providing transition assistance for any newly hired CEO, acting as qualifying agent for the Company’s brokerage and construction licenses, and such other duties and responsibilities as may be assigned to him by the board of directors of Consolidated Tomoka commensurate with his position), and be paid his current annual salary ($294,816) and receive his current benefits through the “Effective Date of Retirement”. Notwithstanding the foregoing, Mr. McMunn will not participate in any stock option grants for the year 2011 and thereafter, nor will he participate in the 2011 cash bonus plan. Under the terms set forth in this Agreement and in consideration of Mr. McMunn’s commitments set forth below, Consolidated Tomoka shall pay to Mr. McMunn as an early retirement incentive the sum of One Hundred Fifty-eight Thousand Seven Hundred Forty-seven Dollars and Twelve cents ($158,747.12) plus reimbursement for any unused vacation days, on December 29, 2011 (“Early Retirement Incentive”). From these gross wages, Consolidated Tomoka will make all normal and required withholdings and deductions and such other deductions that Mr. McMunn may request. The Early Retirement Incentive will be included as wages in the W-2 issued by Consolidated Tomoka for Mr. McMunn for tax year 2011. In addition, Consolidated Tomoka agrees that it will pay the total monthly premium for continued major medical/hospitalization insurance coverage for Mr. McMunn pursuant to COBRA for the eight (8) month period beginning January 1, 2012, and ending August 31, 2012; provided, however, Mr. McMunn timely elects continuation coverage under COBRA. In addition, Consolidated Tomoka will transfer to Mr. McMunn title to his company furnished automobile on the Effective Date of Retirement. During the remainder of Mr. McMunn’s employment, his employment may be terminated pursuant to Section 3 below.

 

 

    (b) Option to Extend Date of Retirement. At the option (“Option”) of Consolidated Tomoka, Consolidated Tomoka may extend the Effective Date of Retirement and continue the employ of Mr. McMunn to June 30, 2012 (which date should the Option be exercised is hereafter referred to as the Effective Date of Retirement), if necessary to facilitate an orderly transition to a new chief executive officer. Consolidated Tomoka must exercise the Option not later than December 1, 2011, by written notice to Mr. McMunn. All terms, conditions, and benefits of Mr. McMunn’s employment (including but not limited to the payment due on December 29, 2011) shall continue unchanged during any extension of Mr. McMunn’s employment with Consolidated Tomoka pursuant to any exercise of the Option.

 

 

2. Retention as Consultant.

 

 

    (a) Retention as Consultant and Consulting Term. Subject to the terms and conditions set forth herein, Consolidated Tomoka agrees to retain Mr. McMunn to render consulting and strategic advisory services (“Services”) in connection with the business, prospects, relationships, and financial and regulatory compliance initiatives of Consolidated Tomoka as reasonably requested by Consolidated Tomoka from time to time by its Board Chairman and/or Chief Executive Officer, and Mr. McMunn hereby agrees to accept such engagement. The term of Mr. McMunn’s engagement as a consultant (the “Consulting Term”) shall commence on the Effective Date of Retirement and shall continue until (i) the twelve (12) month anniversary of the Effective Date of Retirement, or (ii) terminated pursuant to Section 3 below.

 

 

    (b) Performance. During the Consulting Term, Mr. McMunn will perform the Services in a professional, competent and ethical manner. It is the parties’ intent that Mr. McMunn average thirty (30) hours monthly in the performance of such services, however, in no event shall he exceed 360 hours in the aggregate during the Consulting Term. Mr. McMunn may render the Services in any manner that does not interfere with his ability to effectively perform the Services, including, without limitation, via telephone, email or at the offices of Consolidated Tomoka. Mr. McMunn’s engagement is non exclusive and he may pursue other business interests that do not interfere with his ability to perform the Services or violate any ethical obligations owed to Consolidated Tomoka. Consolidated Tomoka and Mr. McMunn specifically intend and agree that his engagement as a consultant be in the nature of an independent contractor relationship.

 

 

    (c) Compensation. In consideration for the Services and other covenants and obligations of Mr. McMunn hereunder, Consolidated Tomoka shall pay Mr. McMunn a consultancy fee during the Consulting Term equal to $12,500 monthly payable in advance on the first business day of each calendar month. Except as set forth in 2(d) or in writing between the parties, each of Consolidated Tomoka and Mr. McMunn shall bear their own costs and expenses in performing their obligations under this section of this Agreement. As Mr. McMunn will be an independent contractor during the Consulting Term, he will not be eligible to receive any Company provided benefits.

 

 

    (d) Expenses. Consolidated Tomoka will reimburse Mr. McMunn for all reasonable costs and expenses incurred in rendering the Services in accordance with Consolidated Tomoka’s standard reimbursement policies.

 

 

    (e) Tax Obligations. Mr. McMunn, as an Independent Contractor shall be solely responsible for all income and other tax liabilities or obligations resulting from the Services rendered pursuant to this Agreement and will be issued a 1099 tax form.

 

 

 

 

 

3. Termination of Employment or Consulting Term.

 

 

    (a) Termination for Cause. Mr. McMunn’s employment or the Consulting Term may be terminated at any time by Consolidated Tomoka with Cause upon written notice of termination delivered to Mr. McMunn For purposes of  this Agreement, “Cause” shall mean:

 

       (i) Mr. McMunn’s arrest or conviction for, plea of nolo contendere to, or admission of the commission of, any act of fraud, misappropriation, or embezzlement, or a criminal felony involving dishonesty  or   moral turpitude; or

 

       (ii) a breach by Mr. McMunn of any material provision of this Agreement provided Mr. McMunn is given reasonable notice of, and a reasonable opportunity to cure, any such breach; or

 

       (iii) any act or intentional omission by Mr. McMunn involving dishonesty or moral turpitude; or

   

       (iv) any act or intentional omission by Mr. McMunn which would cause Consolidated Tomoka significant reputational injury, such as defamation, libel, and slander.

 

 

    (b) Death or Disability of Mr. McMunn. This Agreement shall terminate automatically upon the death of Mr. McMunn or upon Mr. McMunn becoming disabled such that Mr. McMunn cannot perform  the essential  functions  of his employment position or the essential requirements of the consultant Services with or without reasonable accommodation. Nothing contained in this subsection shall  affect Mr. McMunn’s eligibility for employee disability benefits under an applicable employee disability insurance plan.

 

4. Waiver and Release. Mr. McMunn hereby waives, and releases Consolidated Tomoka (including each of its past and present related entities including affiliated associations, parent companies, employee benefit plans, including the 401(k) Plan, insurers, subcontractors, successors and assigns, and any and all of its and their past, current, and future officers, directors, employees, and agents and all persons acting by, through, under, or in concert with any of them, both individually and as agents or representatives of these entities) from, all claims, rights, administrative charges, and causes of action, both known and unknown, in law or in equity, of any kind whatsoever, that Mr. McMunn has or could have made against Consolidated Tomoka through the date of signing this Agreement. Mr. McMunn waives, and releases Consolidated Tomoka from, all claims, rights, charges and causes of action relating to or arising out of Mr. McMunn’s employment with, conditions of employment with, compensation by, or separation and/or termination of employment from Consolidated Tomoka, including, without limitation, any claims, rights, charges or causes of action arising under Title VII of the Civil Rights Act of 1964, as amended; the Age Discrimination in Employment Act of 1967, as amended; the Older Workers Benefit Protection Act of 1990; Executive Order Nos. 11246 and 11478; the Equal Pay Act of 1963, as amended; the Retirement Income Security Act of 1974, as amended; the Rehabilitation Act of 1973, as amended; the Americans With Disabilities Act of 1990, as amended; the Family and Medical Leave Act of 1993; the Fair Labor Standards Act of 1938, as amended; the Occupational Safety and Health Act of 1970, as amended; the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), as amended; the Florida Civil Rights Act of 1992, as amended; any Florida or federal Whistleblower laws; Florida Statutes, Sec.112.3187, 440.205, and 448.102 and any other federal or state law or local ordinance, including any suit in tort (including negligence and personal injury) or contract (whether oral, written or implied), or any other common law or equitable basis of action, except for any claim which may not lawfully be waived in this manner or a claim based upon any obligation of Consolidated Tomoka under this Agreement.

 

 

5. Mutual Non-Disparagement. Except as required by law, Mr. McMunn and Consolidated Tomoka agree to refrain from expressing (or causing others to express) to any third party, any derogatory or negative opinions, comments, statements, or any other action of such a nature concerning Mr. McMunn and Consolidated Tomoka, including to friends, current or former employees, elected or appointed government officials, business associates, members of any bar association, customers, the press, or vendors or suppliers of Consolidated Tomoka.

 

 

6. Survival of Non-Disclosure Agreement. Notwithstanding anything to the contrary herein, the terms, provisions and obligations set forth in that certain Consolidated Tomoka Land Co. Proprietary Model Non Disclosure Agreement dated May 10, 2010, between the Company and Mr. McMunn shall survive the execution and delivery of this Agreement and the consummation of the transactions described herein.

 

 

7. Notices. All notices and other communications given or made pursuant hereto shall be in writing and delivered by hand or sent by registered or certified mail (postage prepaid, return receipt requested) or by nationally recognized overnight air courier service and shall be deemed to have been duly given or made as of the date delivered if delivered personally, or if mailed, on the third business day after mailing (on the first business day after mailing in the case of a nationally recognized overnight air courier service) to the parties at the following:

 

 

    If to Consolidated Tomoka:

 

 

    Consolidated-Tomoka Land Co.

    1530 Cornerstone Boulevard, Suite 100

    Daytona Beach, Florida 32117

 

 

    If to Mr. McMunn:

 

 

    William H. McMunn

    3 South Ravensfield Lane

    Ormond Beach, FL 32174

 

 

8. Severability. If a court of competent jurisdiction invalidates any provision of this Agreement, then all of the remaining provisions of this Agreement shall continue unabated and in full force and effect.

 

 

9. Entire Agreement. This Agreement contains the entire understanding and agreement between the parties and shall not be modified or superseded except in writing by the parties to this Agreement. Except as specifically provided herein, this Agreement supersedes and renders null and void any previous agreements or contracts, whether written or oral, between Mr. McMunn and Consolidated Tomoka but shall not serve to waive or modify any vested rights or benefits associated with his employment by Consolidated Tomoka (including but not limited to his 401(k) account and any vested benefits under Consolidated Tomoka’s defined benefit or deferred compensation plans or any stock option grants received by Mr. McMunn prior to the date of the execution of this Agreement by Mr. McMunn). Consolidated Tomoka and Mr. McMunn specifically recognize that Mr. McMunn is a participant in Consolidated-Tomoka Land Co. Deferred Compensation Plan for Officers and Key Employees and that he is not waiving, and is entitled to, whatever benefits that Plan provides for him as an eligible employee.

 

 

10. Governing Law. The laws of the State of Florida shall govern this Agreement.

 

 

11. Arbitration; Attorney’s Fees and Costs. In the event a dispute arises out of this Agreement, including but not limited to any alleged termination for cause, the parties agree to resolve all disputes through final and binding arbitration in Volusia County, Florida, in accordance with the Rules of the American Arbitration Association. The prevailing party in any action to enforce or construe the terms and provisions of this Agreement will be entitled to an award of reasonable attorneys’ fees and costs from the non prevailing party.

 

 

 

 

 

 

12. Opportunity to Consider and Confer. Mr. McMunn acknowledges that he:

 

 

    (a) has had the opportunity to, and is hereby specifically advised to, consult with an attorney of his choice;

 

 

    (b) has been given a reasonable period of up to twenty-one (21) calendar days in which to consider signing this Agreement;

 

 

    (c) fully understands and is in complete agreement with all of the terms of this Agreement;

 

 

    (d) has signed this Agreement freely and voluntarily;

 

 

    (e) has not relied on any representation or statement made by Consolidated Tomoka or any of Consolidated Tomoka’s agents or employees, except those set forth in this Agreement.

 

 

    (f) This Agreement may be revoked by either party within seven (7) days after signing by sending a notice of revocation in the manner required by Section 7.

 

 

 

IN WITNESS WHEREOF, and intending to be legally bound hereby, Consolidated Tomoka and Mr. McMunn hereby execute this Agreement by signing below voluntarily and with full knowledge of the significance of all of its terms and provisions.

 

 

CONSOLIDATED-TOMOKA LAND CO.

 

 

By: /s/William J. Voges

William J. Voges, Chairman of the Board

 

 

/s/Vicky R. Jones

Witness

 

 

By: /s/William H. McMunn

William H. McMunn

 

 

/s/Sharon H. Romano

Witness

 

 

Signed and effective as of February 8, 2011

 


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