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Exhibit
10.1
SEPARATION AND RELEASE
AGREEMENT
This Separation and Release
Agreement (this “Agreement”) is made by and between
Jeffrey Croft (“Employee”), and DOMINION HOMES, INC.,
an Ohio corporation, whose address is 4900 Tuttle Crossing Blvd.,
P.O. Box 4900, Dublin, Ohio 43016-5555 (the
“Company”).
WHEREAS, Employee has been
serving as an officer and employee of the Company under the terms
of an Employment Agreement dated March 6, 2006 (the
“Employment Agreement”);
WHEREAS, the Company and
Employee have mutually decided terminate Employee’s
employment (with respect to his status as an officer and employee)
with the Company and all of its affiliates effective as of
December 20, 2007 (the “Separation
Date”);
WHEREAS, the parties desire
to set forth all agreements and understandings concerning
Employee’s separation from service from the Company (within
the meaning of Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”)) and to amicably resolve
all differences between them,
NOW, THEREFORE, in
consideration of the mutual promises herein, the parties agree as
follows:
1. Severance
Arrangements . In consideration for the mutual promises set
forth below, the parties have agreed to the following severance
arrangements:
(a) Lump-Sum Severance
Payment . Provided that this Agreement becomes effective and
Employee does not exercise his right to revoke this Agreement as
set forth herein, the Company shall pay Employee an amount equal to
$575,000, less applicable withholdings for federal, state and local
taxes, on the first day of the seventh month following the
Separation Date. In the event of Employee’s death prior to
the time that the payment required under this Paragraph 1(a) has
been made, such payment shall be paid to Employee’s
beneficiary as designated by Employee in writing prior to
Employee’s death or, in the absence of a beneficiary
designation or if the designated beneficiary does not survive
Employee, to Employee’s estate.
(b) Health Care
Coverage . The Company shall pay Employee an amount equal to
$25,200, less applicable withholdings for federal, state and local
taxes, within ten (10) days of the date on which
Employee’s right to revoke this Agreement expires in
accordance with Paragraph 5(c). If Employee elects COBRA coverage,
Employee may, in Employee’s sole discretion, use such amount
to pay COBRA premium payments consistent with the family health,
dental and vision coverage in existence at the time of
Employee’s separation. The Company shall have no obligation
to pay COBRA premiums directly, and Employee acknowledges that he
will not receive any additional cash payment from the Company for
these premiums.
(c) Blackberry ® . Employee
will be allowed to keep his Company Blackberry ® device after
the Separation Date if he so desires, but Employee shall transfer
the device to a cell phone service account within thirty
(30) days of the Separation Date and shall thereafter be
solely responsible for all charges and expenses incurred in
connection therewith.
(d) Insurance Coverage
. As of the Separation Date, the Company will no longer pay for
Employee’s long term disability coverage and life insurance
coverage; however, Employee may elect to convert these policies to
personal policies which Employee will pay for at his own expense,
provided that conversion is permitted by the terms of such
policies.
(e) Miscellaneous .
Employee will be entitled to payment of his final paycheck,
covering the period of his active employment, less applicable
withholdings for federal, state and local taxes, within ten
(10) days following the Separation Date.
(f) Waiver of Benefits
. Except as specifically provided in this Paragraph 1, Employee
agrees that, as of the Separation Date, he is waiving any rights to
all unvested interests in any employee benefits that Employee may
have received as a result of Employee’s employment with the
Company. These interests may include, but are not limited to, the
following:
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Monthly
automobile and gasoline allowance;
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All rights
under the Company’s executive medical reimbursement plan,
except for those eligible expenses that have been incurred, but not
yet reimbursed, as of the separation date; and
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Any accrued,
but unused vacation.
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2. Employment Agreement,
Restricted Stock Award Agreement, Confidentiality, and Cooperation
Covenant .
(a) Extinguishment of
Employment Agreement Except for Noncompetition, Confidential
Information and Intellectual Property Provisions . Employee
agrees that this Agreement supersedes and extinguishes his
Employment Agreement (the “Employment Agreement”), and
any other similar agreements; except that Paragraphs 10, 11 and 12
of the Employment Agreement, which respectively relate to
Noncompetition, Confidentiality and Intellectual Property shall
remain in full force and effect and are incorporated herein as
binding material terms of this Agreement. Notwithstanding the
forgoing, Employee and the Company agree that the period of
noncompetition specified in Paragraph 10 of the Employment
Agreement is hereby reduced from eighteen (18) months to
twelve (12) months.
(b) Restricted Stock .
Notwithstanding any provision in this Agreement, Employee and the
Company agree that Employee hereby forfeits and relinquishes all
shares of the Company’s stock granted to Employee pursuant to
the Restricted Stock Award Agreement executed on or about
May 11, 2006, the
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Amended and Restated 2003
Stock Option and Incentive Equity Plan or any other stock award or
stock option or incentive equity plan which have not vested
pursuant to such agreement or plan prior to the Separation Date,
and Employee and the Company agree that the termination of
Employee’s employment with the Company shall not effect or
cause a lapse of any restriction with respect to any previously
granted shares of restricted stock and shall not effect or cause an
acceleration of vesting of any shares of stock unvested prior to
the Separation Date.
(c) Confidentiality of
this Agreement . Employee agrees to keep the existence and
terms of this Agreement and the settlement it embodies strictly
confidential, unless disclosure is required pursuant to an order by
a court of competent jurisdiction. Employee may make disclosures
regarding the existence, terms, and conditions of this Agreement to
his spouse, attorney(s), or tax advisor(s) provided they are
advised of the terms of this Paragraph.
(d) Cooperation
Covenant . Employee agrees to cooperate with the Company (and
its officers, directors and employees), after the Separation Date
in the following areas:
(i) Employee agrees [a]
during the first thirty (30) days following the Separation
Date to be available for at least sixty (60) hours to provide
to the Company’s officers, directors and employees
assistance, guidance, information and transitional services and
thereafter to be reasonably available to answer questions for the
Company’s officers, directors and employees regarding any
matter, project, initiative or effort for which Employee was
responsible or had substantial involvement in while employed by the
Company, and [b] to cooperate with the Company during the course of
all third-party proceedings arising out of the Company’s
business about which Employee has knowledge or information. For
purposes of this Agreement, “proceedings” includes
internal investigations, administrative or regulatory
investigations or proceedings and lawsuits (including pre-trial
discovery and trial testimony), and “cooperation”
includes [1] Employee’s being reasonably available at the
Company’s request for interviews, meetings, depositions,
hearings and/or trials without the need for subpoena or assurances
by the Company; [2] providing any and all documents in
Employee’s possession that relate to the proceeding; and [3]
providing assistance in locating any and all relevant notes and/or
documents. Provided any such cooperation is reasonable in scope and
time commitment, the Company shall reimburse Employee’s
reasonable, documented expenses, including
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