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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 proceed
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