UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
The
Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): December 18,
2009
Consolidated-Tomoka
Land Co.
(Exact
name of registrant as specified in its charter)
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Florida
(State
or other jurisdiction of incorporation)
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01-11350
(Commission
File Number)
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59-0483700
(IRS
Employer Identification No.)
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1530
Cornerstone Boulevard, Suite 100
Daytona
Beach, Florida
(Address
of principal executive offices)
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32117
(Zip
Code)
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Registrant’s
telephone number, including area code: (386)
274-2202
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Not
Applicable
(Former
name or former address, if changed since last report.)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[ ]
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ]
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
Item 5.02
Departure of Directors or Certain Officers; Election of Directors; Appointment
of Certain Officers; Compensatory Arrangements of Certain Officers.
In
an effort to reduce corporate overhead expenses during a difficult real estate
market, Consolidated-Tomoka Land Co. (“CTO”) announced on December 18, 2009,
that Robert F. Apgar, Sr. Vice President-General Counsel and Assistant Corporate
Secretary will be leaving CTO as of December 31, 2009. His duties
will be transitioned to existing CTO employees.
In
connection with Mr. Apgar’s departure, CTO and Mr. Apgar entered into a
Separation Agreement, Waiver and Full Release on December 18, 2009 (the
“Separation Agreement”), under which (a) Mr. Apgar will receive a one-time lump
sum severance payment of $109,226.00 (less applicable taxes and deductions), (b)
CTO will pay health coverage premiums under COBRA for Mr. Apgar and his spouse
for a period of six months following his departure, and (c) Mr. Apgar will
execute a general release of claims in favor of the Company. Mr.
Apgar has seven days to revoke his acceptance of the Separation Agreement; if he
does not revoke his acceptance, the Separation Agreement will become effective
the day after such revocation period.
A copy of
the Separation Agreement, Waiver and Full Release is attached to this Form
8-K as Exhibit 10.1 and incorporated herein by reference.
Item
9.01 Financial Statements and Exhibits.
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10.1
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Separation
Agreement between Robert F. Apgar and Consolidated-Tomoka Land Co., dated
December 18, 2009
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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Date: December
18, 2009
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Consolidated-Tomoka
Land Co.
By: /s/
William H.
McMunn
William H. McMunn,
President and
Chief
Executive Officer
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THIS
SEPARATION AGREEMENT, WAIVER AND FULL RELEASE (the “Agreement”)
is made and entered into by and between Consolidated-Tomoka
Land Co. (“Consolidated
Tomoka” or the “Company”),
including each of its past and present related entities including affiliated
associations, employee benefit plans, insurers, subcontractors, successors and
assigns, any and all past, current, and future board members, 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, and Robert
F. Apgar (“Mr. Apgar” or the “employee”), 503 Victoria Hills Drive,
DeLand, FL 32724 and his heirs, beneficiaries, assigns, and personal
representatives.
WHEREAS,
Consolidated Tomoka desires to end amicably Mr. Apgar’s employment with
Consolidated Tomoka and to settle any existing or potential claims that the
employee may have against Consolidated Tomoka, whether known or unknown as of
this date, arising from his employment with Consolidated Tomoka, the parties
agree as follows:
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1.
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Under
the terms set forth in this Agreement and in consideration of Mr. Apgar’s
commitments set forth below, Consolidated Tomoka shall pay to Mr. Apgar
the sum of One hundred nine thousand two hundred twenty six ($109,226)
dollars. From these gross wages, Consolidated Tomoka will make
all normal and required deductions from the pay of Mr. Apgar and such
other deductions that Mr. Apgar may request. This gross sum of
$109,226 will be included as wages in the W-2 issued by Consolidated
Tomoka for Mr. Apgar for tax year 2009. In addition,
Consolidated Tomoka agrees that it will pay continued major
medical/hospitalization insurance coverage for Mr. Apgar and his spouse
pursuant to COBRA through June 30, 2010. Beginning July 1, 2010, Mr. Apgar
may continue major medical/hospitalization insurance for he and his spouse
pursuant to COBRA and the cost of this continued insurance will be the
responsibility of Mr. Apgar. No other payments will be made to or on
behalf of Mr. Apgar. These are payments that Mr. Apgar would not be
entitled to except for the provisions in this Agreement. This Agreement
will not affect Mr. Apgar’s right to his vested pension benefit, Section
401(k) Plan benefits and his deferred compensation benefit with
Consolidated Tomoka.
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2. In
consideration of the foregoing benefits:
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(a)
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Mr.
Apgar waives and releases Consolidated Tomoka, 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 of
and 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. Apgar has or could have made against Consolidated
Tomoka through the date of signing this Agreement. Consolidated Tomoka
waives and releases Mr. Apgar of and from all claims, rights, charges, and
causes of action, both known and unknown, in law or in equity, of any kind
or nature whatsoever that Consolidated Tomoka could have made against Mr.
Apgar arising out of his employment with Consolidated Tomoka through the
date of signing of this Agreement except for any conduct or acts by him
that were or are a violation of any state or federal law. Mr. Apgar waives
and releases Consolidated Tomoka of and from all claims, rights, charges
and causes of action relating to or arising out of Mr. Apgar’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 National Labor Relations Act of 1935, as
amended; 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 that arises in the future.
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(b)
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Mr.
Apgar agrees to be reasonably available for twelve (12) months to answer
questions that may arise regarding historical information or other issues
related to the Company, but such information, statements, or discussions
are not and will not be considered by the Company to be legal advice or
consulting services.
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(c)
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Mr.
Apgar agrees to resign from all Company positions including registered
agent and any other Company related
organizations.
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(d)
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Payment
pursuant to this separation agreement will be made in a lump sum
within
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two days
after the rescission period has ended.
(e) Mr. Apgar’s last day will be December 31,
2009.
/s/WHM
/s/RFA
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3.
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Mutual
Non-Disparagement Except as required by law, Mr. Apgar and
Consolidated Tomoka agree to refrain from expressing (or causing others to
express) to any third party, any derogatory or negative opinions,
comments, or
statements, or any other action of such a nature concerning Mr. Apgar 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.
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All
calls regarding Mr. Apgar’s employment and work history with the Company
shall be referred to the Human Resources Director, who will respond in
accordance with this Agreement and existing Company policy except when
otherwise required by law or governmental
agency.
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4.
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Non-Admission.
Neither this Agreement, nor anything contained in it, shall be construed
as an admission by Mr. Apgar or by Consolidated Tomoka of any liability,
wrongdoing or unlawful conduct whatsoever and Mr. Apgar and Consolidated
Tomoka expressly deny engaging in any such
conduct.
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5.
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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.
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6.
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Entire
Agreement. This Agreement contains the entire understanding and
agreement between the parties and shall not be modified or superseded
except upon express written consent of the parties to this Agreement. This
Agreement supersedes and renders null and void any previous agreements or
contracts, whether written or oral, between Mr. Apgar and Consolidated
Tomoka.
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7.
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Governing
Law. The laws of the State of Florida shall govern this Agreement.
Venue for any action under this Agreement will be in Volusia
County, Florida.
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8.
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Arbitration. In
the event a dispute arises out of this Agreement, the parties agree to
resolve all disputes through final and binding arbitration in accordance
with the Rules of the American Arbitration Association. The prevailing
party in any action to enforce the provisions of this Agreement will be
entitled to an award of their attorneys’ fees and
costs.
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9. Opportunity
to Consider and Confer. Mr. Apgar acknowledges that he:
(a)
has had the opportunity to consult with an attorney of his choice;
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(b)
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has
been given a reasonable period of twenty-one (21) calendar days in which
to consider signing this Agreement;
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(c)
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fully
understands and is in complete agreement with all of the terms of this
Agreement;
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(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.
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(f )
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This
Agreement has a seven day rescission period after
signing.
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/s/WHM
/s/RFA
IN
WITNESS WHEREOF, and intending to be legally bound hereby, Consolidated Tomoka
and Mr. Apgar hereby execute this Agreement by signing below voluntarily and
with full knowledge of the significance of all of its provisions.
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Executed
at Daytona Beach, Florida, this 18th day of December, 2009.
Consolidated-Tomoka
Land Co.
By:
/s/William H.
Munn
William
H. McMunn, President
Sworn
to and subscribed before me this 18th day of December,
2009. Such person did take an oath and: (Notary
must check applicable box).
x is/are personally
known to me.
o produced a
current driver's license as identification.
o produced
_______________________ as
identification.
By:/s/Linda
Crisp
SIGNATURE
OF NOTARY
{Notary
Seal must be affixed}
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Executed
at Daytona Beach, Florida, this 18th day of December, 2009.
By:
/s/Robert F.
Apgar
Robert
F. Apgar
Sworn
to and subscribed before me this 18th day of December,
2009. Such person did take an oath and: (Notary
must check applicable box).
x is/are personally
known to me.
o produced a
current driver's license as identification.
o produced
_______________________ as
identification.
By:
/s/Linda
Crisp
SIGNATURE
OF NOTARY
{Notary
Seal must be affixed}
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