separationagreement.htm


    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:

     

    
      	
              1.

            	
              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.

            


    

     

    2.           In
consideration of the foregoing benefits:

     

    
      	
               
      

            	
              (a) 
      

            	
              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.

            


    

     

    
      	
                
      (b)  

            	
              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.

            


    

     

    
      	
              (c)  

            	
              Mr.
      Apgar agrees to resign from all Company positions including registered
      agent  and any other Company related
    organizations.

            


    

     

    
      	
              (d)  

            	
              Payment
      pursuant to this separation agreement will be made in a lump sum
      within

            


    

    two days
after the rescission period has ended.

     

         
(e)   Mr. Apgar’s last day will be December 31,
2009.

     

    /s/WHM                             


    /s/RFA                                

     

     

    
      
        
        

      

      
        
        

        
        

      

      
        
        

      

    

     

     

    
      	
              3.  

            	
              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.

            


    

     

    
      	
               
      

            	
              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.

            


    

     

    
      	
                    4.

            	
              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.

            


    

     

    
      	
                    5.

            	
              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.

            


    

     

    
      	
                    6.

            	
              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.

            


    

     

    
      	
                   7.

            	
              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.

            


    

     

    
      	
                   8.

            	
              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.

            


    

     

         9.           Opportunity
to Consider and Confer. Mr. Apgar acknowledges that he:

     

    (a)       
has had the opportunity to consult with an attorney of his choice;

     

    
      	
               
      

            	
              (b)

            	
              has
      been given a reasonable period of twenty-one (21) calendar days in which
      to consider signing this Agreement;

            


    

     

    
      	
               
      

            	
              (c)

            	
              fully
      understands and is in complete agreement with all of the terms of this
      Agreement;

            


    

     

    (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.

     

    
      	
                       
      (f )      

            	
              This
      Agreement has a seven day rescission period after
  signing.

            


    

     

    
      /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.

     

    
      	
              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}

               

            	
              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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