EXHIBIT 10.2
EXECUTION COPY
RETIREMENT AGREEMENT
This Retirement Agreement (the "Agreement") is made as of the 24th day
of August, 2004, by and between Robert M. Rhodes ("Executive") and THE ST. JOE
COMPANY (the "Employer").
WHEREAS, Executive has been employed by the Employer since February
1997, most recently as Executive Vice President;
WHEREAS, Executive has completed his succession plan and other
responsibilities prior to the expected date of December 31, 2005 and, as a
result, the Executive and the Employer desire and intend to terminate the
employment relationship on the date set forth below; and
WHEREAS, all references to the Employer herein shall include all
entities affiliated with the Employer.
NOW, THEREFORE, Executive and Employer desire, and by this Agreement
intend to be legally bound, in consideration of the mutual promises set
forth herein, by the following terms:
I. RETIREMENT
Executive shall retire and his employment with the Employer shall
terminate effective March 1, 2005 ("Retirement Date").
As set forth on Exhibit A attached hereto, Executive will resign from
all officer and director positions of the Employer effective the
Retirement Date.
II. BENEFITS
A. As consideration for Executive signing this Agreement, the
Employer shall pay to Executive in a lump sum payment on the
Retirement Date an amount equal to the long term incentive
compensation award ("LTIC") set forth in the Long-term
Incentive Compensation Agreement between Executive and
Employer, dated as of August 21, 2001, such award to be
calculated based on the formula set forth in such agreement
but without pro-ration. Executive shall also be paid regular
salary, bonuses (computed based on past practices), SERP and
DCAP benefits, and car allowances through the Retirement Date,
and any unused paid time off, in accordance with his existing
employment agreement. Executive shall receive full pension
credit for the LTIC award. However, Executive shall not be
entitled to receive any grants or awards of stock options or
restricted stock after the date of this Agreement.
B. Executive shall be eligible for continued participation in the
Employer's health plan as provided by law in accordance with
the consolidated Omnibus Budget Reconciliation Act (COBRA)
Public Law No. 99-972. Participation and coverage in the
benefit plans not subject to COBRA provisions shall cease on
the Retirement Date.
C. As consideration for Employer signing this Agreement,
Executive has agreed to provide consulting services to
Employer through December 31, 2005. Executive and Employer
agree to enter into a consulting agreement in the form set
forth as Exhibit B.
III. NON-COMPETITION; NON-SOLICITATION
A. Executive agrees that after the Retirement Date through
December 31, 2005 he will not accept any employment or engage
in any representation or consultation that does or may
directly or indirectly conflict with or be adverse to any
interest of the Employer.
B. Unless waived in writing by the Employer, the Executive agrees
that he will not, directly or indirectly, solicit for
employment or attempt to entice away from the Employer any
officer, director or employee of the Employer from the date
hereof through March 1, 2006.
IV. RELEASE
Executive, for Executive and Executive's predecessors, successors,
assigns, and heirs, hereby agrees to discharge and release the Employer
and, as applicable, each of its direct and indirect parent, subsidiary
or affiliated corporations, organizations, representatives, its present
or former owners, employees and partners, shareholders, insurers,
successors, assigns, clients and counsel from all claims or demands
Executive may have based on Executive's employment with the Employer or
the termination of that employment. This includes a release of any
rights or claims Executive may have based on any facts or events,
whether known or unknown by the Executive, that occurred on or before
the date of this Agreement, including, without limitation, a release of
any rights or claims Executive may have based on:
A. the Federal Civil Rights Acts of 1966, 1970, 1971, 1964 and
1991, as amended; the Age Discrimination in Employment Act of
1967, as amended; the Americans with Disabilities Act of 1990;
the Rehabilitation Act of 1973; the Equal Pay Act of 1963; the
Worker Adjustment Retraining and Notification Act;
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B. the laws of the State of Florida concerning wages, employment
and discharge; any local, county or city employment laws; or
any other law, rule, regulation or ordinance pertaining to
employment, or termination of employment;
C. claims arising out of any legal restrictions of the right to
terminate the Employer's employees such as wrongful or
unlawful discharge or related causes of action;
D. intentional infliction of emotional distress; or
E. violations of any contract express or implied, except for
violations of this Agreement as excepted in Section V.
V. NO FUTURE LAWSUITS, COMPLAINTS OR CLAIMS
Except for legal action to enforce Executive's rights granted in
Section II and to obtain an interpretation of any provision of this
Agreement, Executive promises never to file any petitions, charges,
complaints, grievances, lawsuits, or related documents with any
judicial or administrative agency or union relating to any matter
released herein concerning the Employer, Executive's employment with
the Employer, or Executive's retirement therefrom. If any such actions
are filed on his behalf, Executive shall not accept any relief or
recovery from such action.
In the event that the Employer performs its obligations under this
Agreement and is required to defend a discrimination lawsuit or charge
of discrimination filed by Executive or on his behalf that is in breach
of this Agreement, Executive shall be liable for all reasonable
expenses (including reasonable discovery and other court costs and
reasonable attorneys' fees) incurred in defending the same, regardless
of the outcome. In the event that the Employer takes appropriate action
pursuant to Executive's breach of any provision of this Agreement, all
of his other obligations under this Agreement shall remain in full
force.
VI. PERIOD FOR REVIEW AND CONSIDERATION OF AGREEMENT
If Executive is over the age of 40, Executive confirms that Executive
has been given twenty-one (21) days to review and consider this
Agreement before signing it. Executive understands that Executive may
use as much or as little of this period as Executive wishes prior to
signing.
VII. EXECUTIVE'S RIGHT TO REVOKE AGREEMENT
If this Agreement is signed by Executive and returned to the Employer
within the time specified in Section VI, Executive may revoke this
Agreement within seven (7) calendar days of the date of the Executive's
signature. Revocation can be made by delivering a written notice of
revocation to the Employer, attention
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Rachelle Gottlieb. For this revocation to be effective, written notice
must be received no later than close of business on the seventh (7th)
calendar day (or next business day thereafter) after Executive signs
this Agreement. If Executive revokes this Agreement, it shall not be
effective or enforceable and Executive will not receive the payments
described in Section II.
IX. TAXES
Executive is responsible for any tax liability associated with payments
provided under this Agreement. The Employer has the right to withhold
taxes from such payments to the extent required by law.
X. RETURN OF EMPLOYER PROPERTY; BUSINESS EXPENSES
Executive shall return to the Employer all Employer property,
including, but not limited to, keys, credit cards, badges, files,
records, computer access codes, computer programs, instruction manuals,
documents, business plans, financial projections and other property
which he received or prepared or helped to prepare in connection with
his employment with the Employer, and also agrees to assign to the
Employer all right, title and interest in such property, and any other
inventions, discoveries, or works of authorship created by him during
(but not after) the course of his employment with the Employer.
Executive shall cooperate with any reasonable request of the Employer
to perfect the Employer's right, title and interest in such property.
Executive agrees that he will timely submit all requests for business
expense reimbursements and pay all balances on his corporate credit
card incurred prior to the Retirement Date.
XI. SEVERABILITY AND JUDICIAL RESTATEMENT
Executive and the Employer agree that the provisions of this Agreement
are severable and divisible. In the event any portion of this Agreement
is determined to be illegal or unenforceable, the remaining provision
of this Agreement shall remain in full force and effect.
XII. MISCELLANEOUS
This Agreement supercedes and terminates all prior employment,
severance and long-term incentive compensation agreements between
Executive and Employer effective the Retirement Date. This Agreement
and the Consulting Agreement constitute the entire agreement between
Executive and Employer with respect to Executive's retirement.
Executive's option agreements shall remain in full force and effect on
and after the Retirement Date.
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This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida, without reference to principles of
conflict of laws thereunder.
The captions of this Agreement are not part of the provisions hereof
and shall not have any force or effect.
This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective
successors and legal representatives.
Nothing contained in this Agreement is intended to be, or shall be
construed to be, an admission of any liability by any party or an
admission of the existence of any facts upon which liability could be
based.
Executive acknowledges and represents that Executive has voluntarily
executed this Agreement.
The parties agree to indemnify one another for any costs, losses,
damages, or expenses, including attorneys fees, which arise from the
breach of this Agreement.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF CERTAIN KNOWN AND
UNKNOWN CLAIMS INCLUDING THOSE PURSUANT TO THE AGE DISCRIMINATION IN EMPLOYMENT
ACT, AS AMENDED, AND OTHER LAWS PROHIBITING DISCRIMINATION IN EMPLOYMENT.
EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE HAS READ THIS AGREEMENT, UNDERSTANDS IT
AND IS VOLUNTARILY ENTERING INTO IT.
THE ST. JOE COMPANY
By: _______________________________
Rachelle Gottlieb
Vice President
Human Resources
----------------------------------
Robert M. Rhodes
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EXHIBIT A
RESIGNATION
The undersigned hereby resigns from all positions, including without
limitation those of officer and director, of The St. Joe Company and of all
corporations, limited partnerships, limited liability companies and other
entities affiliated with The St. Joe Company, effective March 1, 2005.
----------------------
Robert M. Rhodes
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EXHIBIT B
AGREEMENT NO. _______________
AGREEMENT FOR PROFESSIONAL SERVICES
[CORPORATE SERVICES]
THIS AGREEMENT (this "Agreement") shall be effective as of March 1, 2005,
between THE ST. JOE COMPANY, a Florida corporation, with an address of 245
Riverside Avenue, Suite 500, Jacksonville, Florida 32202 ("Company"), and Robert
M. Rhodes, with an address of ______________ ("Consultant").
- - Company Contacts:
Peter Rummell
Kevin Twomey
Christine M. Marx
Chris Corr
- - Telephone Number:
(904) 301-4200
WITNESSETH:
WHEREAS, Company and Consultant have entered into a Retirement
Agreement, dated as of August 24, 2004 (the "Retirement Agreement") which was
signed by Company in consideration for Consultant entering into this Agreement
with Company; and
WHEREAS, Company desires to retain consultant to perform the services
described herein, and Consultant desires to be retained to perform such
services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and obligations herein contained, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. TERM. This Agreement shall commence March 2, 2005 and
terminate December 31, 2005.
2. SCOPE OF SERVICES. Consultant shall promptly and
professionally perform legal and public affairs services as
requested by any of the Company Contacts identified above from
time to time for up to 10 hours per month through December 31,
2005 (the "Services").
3. COMPENSATION. As set forth above, Consultant is providing the
Services in consideration for Company entering into the
Retirement Agreement. No
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additional compensation will be paid to Consultant for the
performance of the Services. Notwithstanding the foregoing, it
is understood that Consultant will be compensated for other
services not covered by this Agreement for which he may be
hired by the Company pursuant to a separate agreement.
4. REIMBURSABLE EXPENSES. Reimbursable Expenses will be
reimbursed by Company. For purposes of this Agreement,
"Reimbursable Expenses" are defined as reasonable actual
expenditures incurred by Consultant in connection with the
performance of the Services. All Reimbursable Expenses shall
be reimbursed at actual cost, without mark-up by Consultant.
All Reimbursable Expenses incurred externally by Consultant
shall be documented to Company by original invoices or
receipts. All Reimbursable Expenses incurred internally by
Consultant shall be documented in a manner acceptable to
Company (i.e. copy logs, etc.)
5. CONFIDENTIALITY OF MATERIAL.
a. Confidentiality Obligation. Consultant may, during
the course of providing the Services, have access to
and acquire knowledge regarding Company's assets,
business, plans, strategies, customers, materials,
data, systems and other information of or with
respect to Company, its direct and indirect
subsidiaries and affiliated companies and officers,
directors, employees or agents of Company and such
subsidiaries and affiliates, which may not be
accessible or known to the general public. Any
knowledge regarding the foregoing acquired by
Consultant through his engagement hereunder, and any
product or material produced for or in connection
with this Agreement, shall not be used, published or
divulged by Consultant to any other person, firm or
corporation in any manner or connection whatsoever
without Consultant first having obtained written
permission of the Company, which permission Company
may withhold in its sole discretion. Consultant
specifically agrees that the foregoing
confidentiality obligation applies to any information
acquired by or disclosed to Consultant in any
document provided to Consultant by Company.
b. Return of Materials. At Company's request, Consultant
shall promptly deliver to Company all materials
provided to Consultant prior to and during the term
of this Agreement.
c. Survival. The provisions of this Section shall
survive the expiration or earlier termination of this
Agreement.
6. CONFLICT OF INTEREST.
a. During the term of this Agreement, Consultant agrees
not to accept any employment or engage in any
representation or consultation that does or may
directly or indirectly conflict with or be adverse to
any interest of
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Company, including without limitation, any employment
by or representation of a government entity or agency
that regulates Company or in which any of Company's
land is located.
7. PROMOTION.
a. No Use of Name. Consultant shall acquire no right
under this Agreement to use, and without Company's
prior written consent Consultant shall not use, the
name of Company or any of its related, affiliated or
subsidiary companies (i) in any of Consultant's
advertising, publicity or promotional materials, (ii)
to express or imply any endorsement by Company of
Consultant's services, or (iii) in any other manner
whatsoever, whether or not similar to the uses
specifically prohibited herein.
b. Ownership of Work Product. Title to all tangible work
product produced by Consultant pursuant to this
Agreement shall become and remain the sole and
exclusive property of Company. To the extent the
Services performed under this Agreement produce or
include copyrightable materials or designs, such
deliverables are work made for hire for Company as
the author, creator, or inventor thereof upon
creation, and Company shall have all rights therein
pertaining, including, without limitation, rights of
reproduction. This provision shall be construed as
and constitute a complete assignment to Company of
any and all rights Consultant may have (if any) in
this regard. The Consultant acknowledges that Company
is the motivating force and factor, and for purposes
of copyright or patent, has the right to such
copyrightable or patentable deliverables produced by
Consultant under this Agreement.
c. Deliverables. Consultant shall submit all
deliverables to Company upon completion thereof
unless it is necessary for Consultant, in Company's
sole discretion, to retain possession for a longer
period of time. If Consultant's services are
terminated prior to the expiration of this Agreement,
Consultant shall immediately deliver to Company all
deliverables, regardless of the stage of completion.
Company shall have and retain all rights to use any
and all deliverables. Consultant may retain copies of
such deliverables for her permanent records, provided
such documents are not used by Consultant for any
purpose or shown or given to any third party without
Company's express prior written consent, which
consent may be withheld at Company's sole discretion.
d. Survival. The provisions of this Section 7 shall
survive the expiration or earlier termination of this
Agreement.
8. WARRANTY. Consultant hereby represents that he shall comply
with applicable laws, including professional registration for
all required basic disciplines; and that he shall perform said
services in accordance with generally accepted professional
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standards and in expeditious and economical manner consistent
with the best interests of the Company.
9. ASSIGNMENT & AGENCY.
a. No Assignment. This Agreement is for the personal
services of Consultant and may not be assigned by
Consultant, and it shall not be assignable by
operation of law without the prior written consent of
Company, which consent Company may withhold in its
sole discretion. All work shall be performed by
Consultant.
b. Independent Contractor. It is the express intention
of the parties that Consultant is an independent
contractor and not an employee, agent, joint venturer
or partner of Company. Nothing in this Agreement
shall be interpreted or construed as creating or
establishing the relationship of employer and
employee between Company and Consultant. Both parties
acknowledge that Consultant is not an employee for
state or federal tax purposes. Subject to Section 6
of this Agreement, Consultant shall retain the right
to perform services for others during the term of
this Agreement. Since Consultant is not Company's
employee, Consultant is responsible for paying all
required state and federal taxes. In particular:
i. Company shall not withhold FICA (Social
Security) from Consultant's payments;
ii. Company will not make state or federal
unemployment insurance contributions on
Consultant's behalf;
iii. Company will not withhold state or federal
income tax from payments to Consultant;
iv. Company will not make disability insurance
contributions on behalf of Consultant; and
v. Company will not obtain workers'
compensation insurance on behalf of
Consultant.
c. W-9. Consultant shall complete, execute and deliver
to Company, a Request for Taxpayer Identification and
Certification Form (W-9) no later than March 2, 2005.
10. TERMINATION. Notwithstanding anything to the contrary herein,
Company shall have the right, in its sole discretion and with
or without cause, to terminate this Agreement upon three (3)
days' prior written notice to Consultant. In the event of such
termination, Company's sole obligation and liability to
Consultant shall be to pay for authorized Reimbursable
Expenses incurred through the date of
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such termination for which Consultant shall invoice Company in
accordance with the terms of this Agreement.
11. NO THIRD PARTY BENEFICIARIES. It is the intention of the
parties hereto that no person or entity other than a party
hereto shall be entitled to bring any action to enforce any
provision of this Agreement against the other party hereto,
and that the covenants, undertakings, and agreements set forth
in this Agreement shall, unless provided otherwise, be solely
for the benefit of, and shall be enforceable only by the
parties hereto and their respective successors and permitted
assigns.
12. ATTORNEYS' FEES. In the event that either party brings an
action at law or any other proceeding against the other party
to enforce any of the terms, covenants or conditions hereof,
or by reason of any breach or default hereunder, the party
prevailing in any such action or proceeding shall be paid all
costs and reasonable attorneys' fees by the other party in
such amounts as shall be set by the court, at trial and on
appeal.
13. DETERMINATION OF DISPUTES. Any disputes, differences, claims
or counterclaims between Company and Consultant shall be
submitted to the appropriate court in the County of Duval,
State of Florida, having jurisdiction over the subject matter,
it being specifically agreed that venue shall be Duval County
for all disputes. In any such dispute, Consultant agrees to
out-of-state service in accordance with the applicable rules
of civil procedure and state law. This Agreement shall be
governed by, and be construed in accordance with, the laws of
the State of Florida without regard to principles of conflicts
of law. COMPANY AND CONSULTANT EXPRESSLY WAIVE ANY RIGHT TO A
TRIAL BY JURY WITH RESPECT TO ANY LITIGATION ARISING
HEREUNDER.
14. NOTICES. Any notice, demand, consent, authorization, request,
approval or other communication that any party is required, or
may desire, to give to or make upon the other party pursuant
to this Agreement ("Notice") shall be effective only if in
writing, signed by the party giving Notice and delivered
personally to the other parties or sent by express 24-hour
guaranteed courier or delivery service or by certified mail of
the United States Postal Service, postage prepaid and return
receipt requested, addressed to the other party as follows (or
to such other place as any party may by Notice to the others
specify):
TO COMPANY:
The St. Joe Company
Attn: Christine M. Marx
245 Riverside Avenue, Suite 500
Jacksonville, Florida 32202
Telephone Number: 904-301-4450
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TO CONSULTANT: At the address shown on the front page of this
agreement
Notice shall be deemed given when received, except that if
delivery is not accepted, Notice shall be deemed given on the
date of such non-acceptance.
15. PARTIAL INVALIDITY. If any provision in this Agreement is held
by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remaining provisions will nevertheless
continue in full force without being impaired or invalidated
in any way.
16. CAPTIONS. The captions contained in this Agreement are
inserted for convenience of reference only and shall not be
construed in any manner for the purpose of interpreting the
provisions hereof.
17. ENTIRE AGREEMENT. This Agreement supersedes any and all
agreements, either oral or written, between the parties hereto
with respect to the rendering of services by Consultant for
Company, and contains all the covenants and agreements between
the parties with respect to the rendering of such services.
Any modification of this Agreement will be effective only if
in writing signed by both parties.
IN WITNESS WHEREOF, Company and Consultant have caused this Agreement
to be duly executed on the date set forth below.
"COMPANY"
"CONSULTANT"
THE ST. JOE COMPANY,
a Florida corporation Robert M. Rhodes
______________________________ _____________________________
Authorized Signature Authorized Signature
______________________________ _____________________________
Printed Name Printed Name
______________________________ _____________________________
Title Date
______________________________ _____________________________
Date FEIN/SS #
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