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EXHIBIT 10.9
CONFIDENTIAL
December 21, 2004
Mr. James Dolphin
5319 Butler Court
Columbia, MD 21044
RE: SEPARATION
AGREEMENT AND GENERAL RELEASE
Dear Jim:
This
letter agreement (the "Agreement"), when signed by you, will
constitute a binding agreement between us
with respect to the terms of your
separation from employment with The Town
and Country Trust (the "Company"). You
are advised to consult with an attorney
prior to signing this Agreement. By
signing this Agreement, you will receive
significant, additional benefits that
you would not otherwise be entitled, and
you also will be waiving important
legal rights.
1.
You
acknowledge that you have resigned from your executive position
with the Company effective January 31, 2005
(the "Termination Date").
2.
You
acknowledge that you have been paid all of your earned salary
and accrued vacation through the
Termination Date, and that the Company has
fully reimbursed all of your business
expenses through such date.
3.
In return
for your promises in this Agreement, provided that you
sign the Agreement, do not revoke the
Agreement, and abide by its terms, the
Company will provide you with the following
separation benefits (the "Separation
Benefit") commencing with the Company's
first regular pay date following your
execution and non-revocation of this
Agreement:
(a) The Company
will continue to pay to you your salary, at the
rate of $285,000 per annum, payable bi-weekly, less deductions
and withholdings required or permitted by law, through
November 30, 2006.
(b) The Company
will pay to you a lump sum bonus payment in the
amount of $125,000, less deductions and withholdings required
or permitted by law, for the year ending December 31, 2004.
(c) You will
have the right to continue (at your expense) your
participation in the Company's group heath and dental
insurance plan for up 18 months after the
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Mr. James Dolphin
December 21, 2004
Page 2
Termination date, subject to the restrictions and requirements
set forth under such benefit plan as well as the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA") and the
relevant regulations.
(d) The Company
will continue to permit your use of the Company
automobile in your possession, at your sole expense, and the
Company will transfer the title of that automobile to you (at
no cost to you) as of November 30, 2006.
(e) You will be
permitted to retain possession of your cell phone
and the Company-owned computer presently in your home.
(f) Your current
Company telephone number and related voicemail
box will remain partially active under Company control through
December 31, 2005; the voicemail message that is played to
callers will indicate that you are no longer associated with
the Company and direct them to your new contact information
for future reference. Callers will not be permitted to leave
voice messages and you will not have access to retrieve
messages. Persons emailing your Company email address will
receive a similar response directing them to your new contact
information for future reference. The contents of your
personal Lotus Notes address book will be conveyed to you.
4.
In
consideration for the Separation Benefit and other benefits
contained in this Agreement, on behalf of
yourself and your heirs, family
members, executors, administrators,
successors and assigns, you hereby fully and
forever release and discharge the Company
(which for purposes of such waiver,
release and discharge is deemed to include
its present and former officers,
directors, employees, agents, investors,
shareholders, administrators,
representatives, affiliates, divisions,
subsidiaries, parent corporations,
predecessor and successor corporations and
assigns) from any and all liability
for any claim, duty, obligation, cause of
action or damages (collectively
"claims"), whether presently known or
unknown, suspected or unsuspected, that
you may possess arising from any omission,
act or fact arising out of your
employment with the Company or the
termination thereof, that has occurred from
the beginning of time up to and including
the date you sign this Agreement. Such
released claims include, but are not
limited to:
(a) any claims
for wages, separation pay, severance pay, bonuses,
accrued vacation, personal days, holidays, stock, stock
options, attorneys' fees, costs or expenses;
(b) any other
claims arising out of your employment with the
Company or the termination thereof;
(c) any claims
arising under the common law including, without
limitation, all claims pursuant to public policy or tort law;
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Mr. James Dolphin
December 21, 2004
Page 3
(d) all claims
arising under any agreement, contract (express or
implied), understanding or promise (whether oral or written)
between you and the Company;
(e) any claims
arising under any federal, state or local
constitution, statute, regulation or ordinance, each as
amended to the date hereof, including, without limitation,
Title VII of the Civil Rights Act of 1964; the Civil Rights
Act of 1991; the Age Discrimination in Employment Act of 1967;
the Americans with Disabilities Act of 1990; the Equal Pay
Act; the Family and Medical Leave Act of 1993; the Maryland
Fair Employment Practices Act; and
(f) any claim
for any other loss or damage.
5.
You
acknowledge that the Separation Benefit provided to you under
this Agreement exceeds any payment, benefit
and/or other thing of value to which
you might otherwise be entitled pursuant to
any policy, plan or procedure of the
Company or pursuant to any prior agreement
or contract with the Company. You
specifically acknowledge that among the
rights and claims against the Company
that you are waiving are all your rights
and claims under the Age Discrimination
in Employment Act of 1967, as amended. You
understand that you are not waiving
any rights or claims that arise after the
effective date of this Agreement and
that you are not releasing the Company with
respect to any rights you may have
under any employee benefit plans as defined
in Section 3(3) of ERISA.
6.
The
Company agrees to release any and all claims that it may
possess
against you as of this date, provided that
you sign this Agreement, do not
revoke it, and abide by its terms.
7.
Except for
the purpose of seeking enforcement of the terms of this
Agreement, you agree that you have not and
will not institute any charges,
claims, administrative proceedings,
