EXHIBIT 10(a)
THIS IS AN IMPORTANT LEGAL DOCUMENT; BY SIGNING IT, YOU GIVE UP
IMPORTANT RIGHTS TO SUE. YOU SHOULD THOROUGHLY REVIEW AND UNDERSTAND
THE EFFECT OF THE RELEASE INCLUDED IN THIS DOCUMENT BEFORE ACTING ON
IT. IF YOU DO NOT UNDERSTAND IT, DO NOT SIGN IT.
EMPLOYMENT TERMINATION AND CONSULTING AGREEMENT
AND
GENERAL RELEASE
EMPLOYMENT TERMINATION and CONSULTING AGREEMENT and GENERAL
RELEASE between AMREP CORPORATION, an Oklahoma corporation with
its executive offices in New York City (the "Company") and MOHAN
VACHANI, Senior Vice President and Chief Financial Officer of the
Company ("Employee").
WHEREAS, Employee is a director and officer of the Company and
Employee and the Company wish to arrange for the termination of
such relationships; and
WHEREAS, Employee and the Company desire to resolve all issues as
to employment benefits to which Employee is or may be entitled
now and in the future, including any and all claims which
Employee has or may have arising out of Employee's employment
and/or the termination thereof,
NOW, THEREFORE, in consideration of the mutual promises herein
contained, it is agreed as follows:
1. Employment Termination; Resignations.
(a) As of the close of business on April 30, 2001 (the
"Termination Date"), Employee's employment by the Company will
terminate for all purposes and Employee will not thereafter be
entitled to receive any salary, benefits or other compensation
from the Company, except as set forth herein.
(b) Effective on the Termination Date, Employee shall cease to
be: (i) a director and officer of the Company and all direct and
indirect subsidiaries of the Company; (ii) a Trustee of the Trust
and Member of the Administrative Committee of the Retirement Plan
for Employees of Amrep Corporation and a Trustee and Member of
the Administrative Committee of the Amrep Corporation Employees
Stock Ownership Plan; and (iii) a Manager of Magazinet
Management, L.L.C., a Delaware limited liability company, and
this Agreement shall constitute Employee's written resignations
from all such positions. Upon request of the Company, Employee
shall provide to the Company such separate signed instruments of
resignation from any of such positions as the Company may
request.
2. Company Not Liable. Employee agrees and understands that
nothing contained in this Agreement is an admission by the
Company of any unlawful conduct whatsoever. This Agreement shall
not in any way be construed as an admission by the Company that
it has acted wrongfully with respect to Employee in connection
with his employment or the termination thereof, or that Employee
has any legal rights whatsoever against the Company with respect
thereto, and the Company specifically disclaims any liability to,
or for wrongful acts against, Employee.
3. Consulting Services. (a) During the period from the
Termination Date until April 30, 2002 (the "Consulting Period"),
Employee shall be available to consult with the management of the
Company concerning its business for not more than 600 hours. Such
consulting services shall be provided by Employee in New York
City and/or Rio Rancho, New Mexico and/or Mt. Morris, Illinois as
designated by the Company and at such other locations as shall be
mutually agreeable to Employee and the Company, shall be called
for upon reasonable advance notice by the Company to Employee and
shall be scheduled with due regard to his other commitments. It
is understood that such services may be required unevenly during
the Consulting Period and that they may be front loaded.
(b) In consideration of Employee's agreement to provide such
consulting services, during the Consulting Period the Company
shall pay to Employee monthly, on the first day of the month, the
sum of $8,333.33. These payments shall be made whether or not the
Company requests Employee to provide such services but shall no
longer be payable if and when Employee fails or refuses to honor
the Company's request that such services be provided in
accordance with Section 3(a). If the Company wishes to have
Employee consult for more than 600 hours and the Employee does
so, Employee shall be compensated for any hours he consults in
excess of 600 hours at the rate of $200 per hour. The Company
shall also reimburse Employee for his reasonable expenses
incurred in providing such consulting services in accordance with
the Company's expense reimbursement policies applicable to its
senior executives.
4. Severance Payment to Employee. In connection with the
termination of Employee's employment by the Company and in lieu
of any termination or severance pay or similar payment otherwise
due to Employee as a result of the termination of his employment,
whether by reason of Company policy, or agreement, or otherwise,
the Company will pay to Employee the sum of $22,518, less all
required withholdings for tax purposes.
5. Automobile. The Company heretofore leased a 1998 Mercedes
automobile (VIN WDBGA33GXWA388314) which automobile was used by
Employee. Employee leased such automobile effective December 18,
2000, for a monthly payment of $860, and from such date through
the Termination Date the Company shall pay Employee as an
addition to his regular salary a monthly amount at the rate equal
to the monthly payment on said Employee's automobile lease, such
additional amount to be paid in accordance with the Company's
customary payment procedures and to be subject to all required
withholdings for tax purposes.
6. Additional Consideration. Employee understands and agrees that
the engagement of Employee by the Company to furnish consulting
services provided for herein represents consideration to Employee
over and above anything else of value which Employee already is
entitled to receive from the Company.
7. Employee's Release of the Company. In consideration of the
agreements of and payments by the Company provided for herein and
other terms of this Agreement, subject to the provisions of this
Agreement Employee for himself and his heirs and assigns hereby
releases and discharges the Company and its successors,
subsidiaries, affiliates and assigns, and its present and former
shareholders, officers, directors, agents, and employees, from
all actions, suits, liabilities, charges, claims and causes of
action, known or unknown, fixed or contingent, that Employee has,
or may have, arising out of Employee's employment or termination
from employment, whether before courts, administrative agencies,
or other forums wherever situated, including, but not limited to,
all claims for wages, overtime premiums, holiday pay, pay for
personal days, pay for unused sick, absence, or vacation days,
compensatory time, and any other pay for time worked and leave of
any kind to which Employee is or may be entitled, and all claims
under Title VII of the Civil Rights Act of 1964, as amended, the
Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, as amended by the Older Workers' Benefit Protection
Act (the "ADEA"), the Equal Pay Act of 1963, as amended, the
Employee Retirement Income Security Act of 1974, as amended, the
Worker Adjustment and Retraining Act, as amended, the New York
Human Rights Law, and the various other federal state and local
civil rights acts involving discrimination on the basis of age,
race, sex, sexual orientation, religion, disability, national
origin and marital status, and all claims under express or
implied contract theories.
8. Medical Insurance. During the Consulting Period, the Company
shall pay for the cost of medical insurance for Employee, but
only to the extent of the coverage generally made available to
Company employees under the policy of medical insurance, if any,
from time to time provided by the Company, in its sole discretion
and without any obligation to do so (the "Policy"), and only if
Employee shall pay to the Company monthly an amount equal to the
amount payable by employees of the Company for coverage under
such Policy. Employee acknowledges that he is aware that a
federal law known as the Consolidated Omnibus Budget
Reconciliation Act ("COBRA"), may provide for Employee's
entitlement, at his cost, to certain medical benefits for a
limited time after the Termination Date or the Consulting Period,
provided timely application for those benefits is made. If a
COBRA election is not available to Employee after the Consulting
Period and if and to the extent that the Policy permits and
Employee requests in writing, the Company will provide coverage
to Employee for 18 months following the end of the Consulting
Period, but only to the extent of the coverage generally made
available to Company employees under the Policy and only for so
long as Employee shall pay to the Company monthly an amount equal
to the full amount payable by the Company for such coverage.
9. Certain Claims not Released. This Agreement does not release
or waive any claims by Employee:
(a) for rights arising under this Agreement;
(b) for salary and benefits payable to Employee in the
ordinary course through the Termination Date;
(c) for worker's compensation to which Employee may be
entitled in respect of any job-related injury which occurred
prior to the Termination Date;
(d) for accrued Social Security benefits to which
Employee may become entitled under applicable law;
(e) with respect to Employee's rights under COBRA to
continuation of medical and hospitalization insurance
coverage under the Company's existing health care plan at
Employee's own expense after the Termination Date;
(f) for indemnification (as an officer and/or director)
for job-related, third-party claims arising prior to the
Termination Date; or
(g) with respect to any rights or claims that may arise
under the ADEA after the date on which Employee signs this
Agreement.
10. EEOC Enforcement.It is understood that this Agreement may not
affect the rights and responsibilities of the Equal Employment
Opportunity Commission ("EEOC") to enforce the ADEA, or be used
to justify interfering with the protected right of an employee to
file a charge or participate in an investigation or proceeding
conducted by the EEOC under the ADEA.
11. Employee's Confidentiality and Noncompetition Agreements.
(a) Employee acknowledges that during his employment
with the Company he has had and while acting as a consultant
for the Company hereunder he may have access to confidential
information regarding the Company and its subsidiaries and
affiliates and that he will not, during or subsequent to his
employment, divulge, furnish, or make accessible to any
person (other than with the prior written consent of the
Board of Directors of the Company) any such confidential
information or plans of the Company. However, confidential
information or plans shall exclude information or plans
which: (i) at the time of disclosure already are in the
public domain or which, after disclosure, are published or
otherwise become part of the public domain through no fault
of the Employee; (ii) Employee can show was in his
possession at the time of the Company's disclosure to
Employee and was not acquired, directly or indirectly, from
the Company or from a third party under an obligation of
confidence; or (iii) Employee can show were received by
Employee after the time of the Company's disclosure from a
third party who did not require Employee to hold it in
confidence.
(b) Employee agrees that during the Consulting Period
he will not (i) engage directly or indirectly, whether
individually, or as a shareholder, partner, officer,
director, sales representative, employee or consultant of
any business organization, in activities which are
competitive in any geographic area with any business owned
or operated or being actively considered to be owned or
operated by the Company or any subsidiary or affiliate of
the Company (a "Designated Business"); (ii) divert to any
competitor of the Company or any subsidiary in a Designated
Business any customer of the Company or a subsidiary; (iii)
solicit or encourage any officer, employee, or consultant of
the Company or any subsidiary to leave its employ; or (iv)
call upon any prospective acquisition candidate, on
Employee's own behalf or on behalf of any other person,
which candidate was, to Employee's knowledge, either called
upon by the Company or any subsidiary or with respect to
which the Company or any subsidiary made an acquisition
analysis for the purposes of acquiring such entity.
(c) The parties hereto acknowledge that Employee's
noncompetition obligations hereunder will not preclude
Employee from owning less than 1% of the common stock of any
publicly traded corporation conducting business activities
in a Designated Business. If at any time the provisions of
this Section 11 are determined to be invalid or
unenforceable, by reason of being vague or unreasonable as
to area, duration, or scope of activity, this Section 11
will be considered divisible and will become and be
immediately amended to only such area, duration and scope of
activity as will be determined to be reasonable and
enforceable by the court or other body having jurisdiction
over the matter; and Employee agrees that this Section 11 as
so amended will be valid and binding as though any invalid
or unenforceable provision had not been included herein.
12. Employee's Review and Signature.
(a) Employee acknowledges he was first given a copy of
this Agreement on January 17, 2001. Employee will have a
period of 21 days from the date Employee was first given a
copy of this Agreement in which to carefully study and
consider the terms of this Agreement. During this
consideration period Employee is advised to talk to an
attorney about this Agreement and what it means to Employee.
(b) If at any time on or before the 21st day after the
day Employee was first given a copy of this Agreement,
Employee decides to accept the terms of this Agreement,
Employee should date and sign the "Employee's Acceptance" on
page 10 of this Agreement, and return the signed copy to the
Company at 641 Lexington Avenue, New York, New York 10022,
attention of: Peter M. Pizza, Secretary, so that it is
received by the Company no later than 25 days after the day
Employee was first given a copy of this Agreement.
(c) If Employee has spoken to an attorney about this
Agreement, Employee should also have that attorney complete
the "Attorney's Statement" which appears at the end of this
Agreement.
13. Cancellation on Employee's Failure to Sign. If Employee has
not signed and returned a copy of this Agreement prior to the
close of business on the 25th day after Employee was first given
a copy of this Agreement, or if Employee cancels this Agreement
as provided in Section 14, then the Company's proposed
undertakings in this Agreement shall be automatically withdrawn
and canceled and it will be as if the Company had never made such
proposed undertakings.
14. Effectiveness of Agreement; Employee's Right to Cancel.
(a) This Agreement will not become effective or
enforceable until 12:01 A.M. on the tenth (10th) day after
the Company has received a copy of this Agreement signed by
Employee. That day and time is called the "Effective Date".
(b) UNTIL THE EFFECTIVE DATE, EMPLOYEE HAS THE LEGAL
RIGHT UNDER FEDERAL LAW TO CANCEL THIS AGREEMENT. THE FACT
THAT EMPLOYEE HAS SIGNED AND RETURNED THIS AGREEMENT TO THE
COMPANY WILL NOT PREVENT EMPLOYEE FROM CANCELING THIS
AGREEMENT PRIOR TO THE EFFECTIVE DATE.
(c) If Employee decides to cancel this Agreement,
Employee may do so by notifying the Company in writing not
later than the Effective Date at the following address:
641 Lexington Avenue
New York, New York 10022
Att: Peter M. Pizza, Secretary
If Employee cancels by mail or telegram, Employee must send the
notice no later than the Effective Date.
(d) IF EMPLOYEE HAS SIGNED AND RETURNED A COPY OF THIS
AGREEMENT AND EMPLOYEE DOES NOT GIVE THE COMPANY A WRITTEN
CANCELLATION NOTICE NOT LATER THAN THE EFFECTIVE DATE, THIS
AGREEMENT WILL BECOME BINDING ON EMPLOYEE.
15. Notices. Notices under this Agreement shall be in writing and
shall be hand delivered or sent by certified mail, return receipt
requested, or by established overnight delivery service:
If to the Company at - AMREP Corporation
641 Lexington Avenue
New York, New York 10022
Att: Peter M. Pizza
and
If to Employee at - One Diablo View Drive
Orinda, California 94563
or to such other address as either the Company or Employee shall
specify to the other by like notice.
16. Entire Agreement; Amendments. This Agreement is the entire
agreement between Employee and the Company with respect to all
matters relating to the termination of Employee's employment by
the Company. The terms of this Agreement may only be altered by a
writing signed by Employee and the Company.
17. Governing Law. This Agreement shall be deemed to have been
made within the County of New York, State of New York, which is
where the principal offices of the Company are located and where
Employee has an office, and shall be interpreted, construed and
enforced in accordance with the laws of the State of New York
and before the Courts of the State of New York, County of New
York.
By: /s/ E B Cloues, II_
Name: Edward B. Cloues, II
Title: Chairman
Dated: January 17, 2001
Copy received January 17, 2001
/s/ Mohan Vachani_____________
Mohan Vachani
EMPLOYEE'S AGREEMENT AND ACCEPTANCE
I hereby acknowledge that I have had the opportunity to
consider the terms of the above Employment Termination and
Consulting Agreement and General Release for a period of 21
days. I have carefully read and studied said Agreement and I
fully understand its terms and the terms of the release of
claims contained therein and the consequences to me of my
acceptance of said Agreement and giving of such release. I
hereby accept and agree to the terms of said Agreement and
the release, voluntarily and of my own free will.
AGREED TO AND ACCEPTED:
/s/ Mohan Vachani____________
Mohan Vachani
Dated: 1/17____, 2001