EXHIBIT 10.19
RETIREMENT, WAIVER AND RELEASE AGREEMENT
WITH XXXX X. XXXXX DATED AUGUST 24, 2000
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RETIREMENT, WAIVER AND RELEASE AGREEMENT
THIS RETIREMENT, WAIVER AND RELEASE AGREEMENT ("Agreement") is made by and
between Xxxx X. Xxxxx ("White") and Commercial Federal Bank, A Federal Savings
Bank ("CFB"), effective as of the date described in paragraph 4 of this
Agreement.
RECITALS:
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This Agreement is made with reference to the following facts and
objectives:
(a) White has been employed by CFB prior to this Agreement as an Executive
Vice-President of CFB;
(b) White is retiring from his employment with CFB effective August 31,
2000, after more than 24 years of service to CFB; and
(c) The parties are entering into this Agreement in order to settle any
and all existing and potential matters and disputes which they have or
may have with one another with respect to White's employment and
retirement from employment and to release CFB and its affiliates
completely from any and all claims arising therefrom.
NOW, THEREFORE, in order to carry out the intent of the parties as set
forth in the foregoing recitals, which are made a contractual part of this
Agreement, and in consideration of the mutual agreements, provisions, recitals,
promises and covenants contained in this Agreement, the parties agree as
follows:
1. RETIREMENT. White is voluntarily retiring from the employment of CFB
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effective at 5:00 p.m. C.D.T. on August 31, 2000 (the "RETIREMENT DATE"). White
therefore hereby resigns from each employment, corporate office and other
position he holds with Commercial Federal Corporation and with any of its
subsidiary entities, including CFB, effective at the close of business on the
RETIREMENT DATE.
2. CONSIDERATION TO WHITE.
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(A) Retirement Separation Allowance. CFB shall pay to White a cash
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Retirement Separation Allowance in the amount of $155,925.12. Such
amount will be paid in a lump sum, less 28% federal income tax
withholding, 5% Nebraska state income tax withholding, 6.2% Social
Security tax withholding (subject to the maximum taxable wage base for
tax year 2000) and 1.45% Medicare tax withholding. The net amount
shall be paid to White by CFB in a lump sum within ten (10) days after
the effective date of this Agreement described in paragraph 4 of this
Agreement.
(B) Health and Dental Insurance from September 1, 2000 through August 31,
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2001. CFB has offered to allow White to continue, and White has
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elected to continue, the present coverage for White and any of White's
presently covered dependents under CFB's health and dental insurance
during the period from September 1, 2000 through August 31, 2001 (the
"BENEFIT CONTINUATION PERIOD"), under the same terms and conditions as
if White were to remain an active employee of CFB during the BENEFIT
CONTINUATION PERIOD. It is agreed that CFB will withhold from the
Retirement Separation Allowance payment, described in subparagraph 2.
(A) above, the portion of the cost of such coverages that CFB requires
active employees to contribute to the cost of such coverages.
(C) Life Insurance. Subject to the applicable insurer's or insurers'
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underwriting requirements and qualification standards as same may from
time to time be revised, CFB agrees to continue White's participation
in CFB's group life insurance program -- but not including coverage
for any of White's dependents - during the BENEFIT CONTINUATION
PERIOD. CFB shall nevertheless have the right before and during the
BENEFIT CONTINUATION PERIOD to change insurance carriers, coverage(s),
amounts of coverage(s), and/or terms and conditions of coverage(s)
under CFB's group life insurance program, and to apply such changes to
White as well as to then-active employees of CFB. White's coverages
and eligibility for continued coverage(s) from time to time under such
plan or plans shall be contingent on White's satisfying any then
applicable underwriting criteria of the applicable insurer(s). CFB's
obligations under this subparagraph 2.(C) shall terminate at the
earlier of the end of the BENEFIT CONTINUATION PERIOD or such time as
White becomes eligible for coverage under any life insurance plan of
any other employer. Since the cost of such insurance will be taxable
to White, CFB will withhold the taxes on such cost amount from the
payment described in subparagraph 2.(A).
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(D) Stock Options. Certain incentive stock options ("ISO's") to purchase
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shares of Commercial Federal Corporation common stock were previously
awarded to White and are either presently exercisable by White or were
scheduled to become exercisable by White on certain future dates
should White have remained in CFB's employment through such dates, and
such ISO's were further to remain exercisable by White for a limited
period of time following White's separation from CFB's employment. In
addition, certain non-incentive stock options ("NISO's") to purchase
shares of Commercial Federal Corporation common stock were previously
awarded to White and are either presently exercisable by White or were
scheduled to become exercisable by White on certain future dates
should White have remained in CFB's employment through such dates, and
such NISO's were further to remain exercisable by White for a limited
period of time following White's separation from CFB's employment. For
purposes (and only for purposes) of determining whether such ISO's and
NISO's shall hereafter be or become exercisable by White:
(1) Subject to the remaining provisions of this subparagraph 2.(D),
any such ISO's and NISO's that are presently exercisable by White
in accordance with their terms shall remain exercisable by White
in accordance with their terms at any time either before or
during the eighteen-month period beginning September 1, 2000 and
ending February 28, 2002. (Such eighteen-month period is
hereinafter referred to as the "OPTION EXERCISE PERIOD.");
(2) Any stock option(s) that would otherwise have first become
exercisable by White during the OPTION EXERCISE PERIOD, if White
had remained employed by CFB during the OPTION EXERCISE PERIOD,
may be exercised by White during the OPTION EXERCISE PERIOD, but
not earlier than the date(s) on which such option(s) would have
first become exercisable by White during the OPTION EXERCISE
PERIOD if White had remained employed by CFB during the OPTION
EXERCISE PERIOD.
(3) In addition, from September 1, 2001 through February 28, 2002,
White shall also have the option to purchase up to two thousand
five-hundred (2,500) of the shares of common stock that White
would have for the first time acquired the immediately
exercisable option to purchase in May, 2002 if White were to have
remained employed by CFB through May, 2002.
(4) White and CFB acknowledge that in order to extend the time during
which White may exercise such stock options, certain amendments
to plan(s) and documents will or may be required. White and CFB
further acknowledge that under and in accordance with federal tax
laws and regulations, because such amendments constitute a
modification of any ISO's, such amendments may cause the ISO's to
no longer qualify as ISO's but may cause or require them to be
treated as NISO's. Further, and in any event, under and in
accordance with federal tax laws and regulations, any ISO's not
exercised by White within three months after the RETIREMENT DATE
will thereafter be treated as NISO's.
(5) Except as provided in subparagraph 2.(D)(3), White shall not have
or acquire any right, title or interest in or to any stock
options that were scheduled to vest in or first be exercisable by
White on date(s) that are after the end of the OPTION EXERCISE
PERIOD. It is understood and agreed that any right, title and
interest White may have had in regard to such options is canceled
as a result of White's retirement and separation from the
employment of CFB. Any rights that are not exercised before the
end of the OPTION EXERCISE PERIOD shall be deemed forfeited.
TAX IMPLICATIONS: It is understood that exercise by White of the
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options to purchase shares of stock under this subparagraph 2.(D) may
result in taxable income to White, and that CFB may be obligated to
withhold federal and state taxes respecting that taxable income.
Within ten (10) days after CFB notifies White of the amount of such
taxes required to be withheld, White shall deliver his check (or a
cashier's check) to CFB, payable to "Commercial Federal Bank," in the
amount of such taxes required to be withheld as determined by CFB. The
check shall be delivered to the Director of Human Resources of CFB. If
White fails to timely deliver such check or if such check shall for
any reason not be paid when presented by CFB for payment, then CFB may
delay delivery and issuance of the shares of stock to White until
White has paid to CFB the amount of such tax withholdings, or until
other arrangements and provisions satisfactory to CFB have been made
respecting such required tax withholdings (such as, CFB's withholding
of taxes by withholding shares of the stock).
(E) Restricted Stock. Certain restricted rights to receive shares of
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Commercial Federal Corporation common stock were previously awarded to
White and such shares were scheduled to vest in White free from
restrictions on certain date(s) should White have remained in CFB's
employment through such date(s). Any such shares that would have
vested in White free from restrictions in the future, if White had
remained an employee of CFB, shall vest in White free from
restrictions on the same date(s) they would have vested in White free
from restrictions had White remained an employee of CFB. CFB will
deliver such shares to White or cause such shares to be delivered to
White within forty-five (45) days after they, in accordance with the
foregoing, vest in White free from restrictions.
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TAX IMPLICATIONS: It is understood that receipt by White of shares of
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stock under this subparagraph 2.(E) will result in taxable income to
White, and that CFB will be obligated to withhold federal and state
taxes respecting that taxable income. Within ten (10) days after CFB
notifies White of the amount of such taxes required to be withheld,
White shall deliver his check (or a cashier's check) to CFB, payable
to "Commercial Federal Bank," in the amount of such taxes required to
be withheld. The check shall be delivered to the Director of Human
Resources of CFB. If White fails to timely deliver such check or if
such check shall for any reason not be paid when presented by CFB for
payment, then CFB may delay delivery and issuance of the shares of
stock to White until White has paid to CFB the amount of such tax
withholdings, or until other arrangements and provisions satisfactory
to CFB have been made respecting such required tax withholdings (such
as, CFB's withholding of taxes by withholding shares of stock).
(F) CFB agrees to pay for outplacement services provided to White if such
services are authorized and approved in advance and in writing by
Xxxxxx X. Xxxxx or Xxxxxxxxx X. Xxxxxxxxx of CFB.
(G) Supplemental Separation Allowance in Lieu of 401-K Match. Inasmuch as
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White will not be employed by CFB on December 31, 2000, White will not
be eligible for a "matching" 401-K contribution from CFB for the year
2000. However, as a supplemental separation allowance, CFB will pay to
White, in a lump sum, the gross amount that CFB would have contributed
("matched") for the year 2000 on White's behalf to CFB's 401-K Plan
and to the Deferred Compensation Plan for Highly Compensated
Employees. Such payment will be based upon and calculated with
reference to White's employment by and earnings from CFB from January
1, 2000 through the RETIREMENT DATE. White understands that federal
and state income and payroll taxes will be withheld from such gross
payment. The payment to White will be made on the same date that CFB
makes its matching contributions for the year 2000 to CFB's 401-K Plan
on behalf of CFB's employees.
White acknowledges that the payment(s) and other consideration being provided to
White under this paragraph 2 are in addition to anything that White is already
entitled to pursuant to White's employment with CFB. It is understood that the
payment of the Retirement Separation Allowance and other consideration to be
provided to White under this paragraph 2 constitute a voluntary, ad hoc
retirement separation arrangement, and that same shall neither create nor be
evidence of any severance pay plan, pension benefit plan or employee welfare
benefit plan. No employee or former employee of CFB or its affiliated entities,
other than White, shall have any rights or claims under the above-described
voluntary, ad hoc arrangement.
3. OTHER BENEFITS.
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(A) Health and Dental Insurance after August 31, 2001. Beginning September
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1, 2001, White may elect to continue health and dental insurance for
himself and any of his currently covered eligible dependents under the
same terms and conditions that CFB offers such coverage to retirees of
CFB; provided, however, that if CFB ceases to continue offering such
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health and dental insurance to retirees of CFB, then CFB may cease
offering such coverage to White.
(B) Vacation. CFB shall pay to White any portion of the vacation awarded
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to him on and as of January 1, 2000 that remains unused as of August
31, 2000, if any, less applicable state and federal tax withholdings.
Pursuant to CFB vacation pay policy, payment will not be made to White
for any unused vacation carried over from the previous calendar year
(1999).
(C) Bonus. White shall not be eligible to receive any bonus from CFB.
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(D) Deferred Compensation. White acknowledges that no compensation or
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deferred compensation is due to him from CFB that has not already been
paid to him by CFB, except for the amount in which White was fully
vested as of July 31, 2000 in the "CFB Deferred Compensation Plans for
Key and Highly Compensated Employees" ("Rabbi Trust").
(E) Survivor Income Plan. White will be entitled to participate in CFB's
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survivor income plan based on his vested interest as of the RETIREMENT
DATE. (As of August 31, 2000, White's vested percentage was 98.40%.)
(F) All other benefits, and the continuation or cessation thereof, shall
be handled, addressed and administered in accordance with the terms of
CFB's plans, policies and procedures in effect on July 31, 2000.
4. RIGHT TO REVOKE AND EFFECTIVE DATE. CFB has advised White and White
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acknowledges that White has the right to revoke this Agreement within seven (7)
days after White signs this Agreement. If White wishes to so revoke this
Agreement, White shall, within seven (7) days after White signs this Agreement,
either mail by certified mail-return receipt requested, or hand deliver, written
notice of such revocation to Xx. Xxxxxx X. Xxxxx, 1400 Commercial Federal Tower,
72nd and Xxxxx Xxxxxxx, Xxxxx, Xxxxxxxx 00000. No such attempted revocation by
mail shall be valid or effective unless White also telefaxes a copy of such
mailed revocation to Xx. Xxxxx at (000) 000-0000. Unless so revoked, this
Agreement shall become effective on the eighth day following the date White
signs this Agreement.
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5. RELEASE. In consideration of the covenants, agreements, and recitals
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contained in this Agreement, White on behalf of himself, and his assigns, heirs,
successors, and executors, hereby knowingly and voluntarily releases and forever
discharges CFB, and every entity affiliated with or related to CFB as a parent
or subsidiary entity or by common or interrelated ownership or otherwise, and
each of its and/or their respective agents, employees, officers, directors,
predecessors, successors and assigns (all of such released parties being
collectively referred to hereinafter as "RELEASED PARTIES"), from any and all
claims, damages, demands, liabilities, attorney fees, and expenses of any nature
whatsoever arising out of or relating in any way to White's employment with CFB
and/or his retirement separation from employment. This release shall include and
extend to, without limitation, any and all claims, demands, and liabilities
under, asserting, or pursuant to federal, state, or local laws, regulations,
decisions, or ordinances generally, or prohibiting employment discrimination
(including but not limited to Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act and the Age Discrimination in Employment Act),
or based upon any alleged tort, breach of any contract, wrongful discharge, or
any other actual or alleged wrongdoing whatsoever. This release shall be
construed broadly, it being the intent of the parties to fully resolve any and
all claims and potential claims of White against RELEASED PARTIES and any of
them, other than claims arising after this Agreement is signed by White.
IN SHORT, WHITE UNDERSTANDS THAT IF HE SIGNS THIS AGREEMENT, HE WILL HAVE NO
FURTHER CLAIMS OF ANY NATURE WHATSOEVER AGAINST CFB OR AGAINST ANY PERSON OR
OTHER ENTITY AFFILIATED WITH CFB, EXCEPT FOR CLAIMS WHICH ARISE AFTER WHITE
SIGNS THIS AGREEMENT.
6. COVENANT NOT TO XXX. White covenants and agrees that he will forever
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refrain from bringing or participating as a party plaintiff in any action,
lawsuit, claim, or proceeding based on, arising out of, or in connection with
White's employment with CFB or separation therefrom, other than claims arising
as a result of occurrences after this Agreement is signed by White. However,
nothing in this document shall preclude White from seeking any unemployment
compensation benefits to which he may otherwise be entitled by law.
7. FUTURE EMPLOYMENT, AGREEMENTS CANCELLATION, AND CONFIDENTIAL INFORMATION.
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(A) White hereby waives any entitlement he may have or claim to have to
employment by CFB beyond August 31, 2000.
(B) It is understood and agreed that the provisions of this Agreement
supersede and cancel any employment, compensation, and similar
agreement(s) previously entered into between White and Commercial
Federal Corporation or any of its subsidiary entities, including CFB.
(C) White agrees that he will not disclose, disseminate, or use any
confidential information concerning CFB's employees, operations,
customers, products or services (existing or contemplated), pricing
policies, marketing and hiring techniques, financial information,
costs, profits, sales, confidential plans of any nature or other
confidential information or data of any kind, in any future employment
or self-employment. This subparagraph is intended to preclude White
from using or disclosing only "confidential information or data" of
CFB, which shall be interpreted to mean information or data that CFB
reasonably seeks to retain and preserve as confidential and which CFB
has not publicly disclosed.
8. ACKNOWLEDGEMENTS AND REPRESENTATIONS OF THE PARTIES. The parties
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acknowledge and represent as follows:
(A) This Agreement constitutes an agreement that is legally binding on
each party, enforceable in accordance with its terms.
(B) CFB and White have had ample opportunity to review this Agreement.
Further, White has been advised by CFB, and has had ample opportunity,
to consult with an attorney of his own choosing prior to signing this
Agreement regarding the terms, conditions and ramifications of this
Agreement, and White has in fact consulted with legal counsel of his
own choosing in that regard or has elected not to do so.
(C) CFB and White are each entering into this Agreement knowingly,
voluntarily, and of their own volition and neither is under any duress
or undue influence.
(D) CFB and White have read and understand this Agreement. White hereby
acknowledges and understands that, by executing this Agreement, he is
releasing and waiving all claims against RELEASED PARTIES arising out
of his employment or separation therefrom, other than claims arising
after the date White signs this Agreement.
(E) White has been advised and hereby acknowledges that he has twenty-one
(21) days, which will begin to run on the date this Agreement is first
presented to him for his consideration and possible signature, in
which to determine whether to accept the terms of this Agreement and
to sign this Agreement. White may, if he so chooses, waive this period
and sign the Agreement prior to the expiration of the 21-day period.
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9. NO ADMISSION OF LIABILITY. This Agreement shall not be treated as an
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admission of liability or of any wrongdoing by either party, and shall neither
be offered by either party nor admissible in evidence as any such admission.
10. ENTIRE AGREEMENT: BINDING EFFECT. This Agreement constitutes the entire
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agreement between the parties and shall bind and inure to the benefit of both
parties and of each of the RELEASED PARTIES, and their respective successors,
heirs and legal representatives.
11. SEVERABILITY. In the event a court of competent jurisdiction determines
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that one or more of the clauses of this Agreement are unenforceable, such
clause(s) shall be severed from the Agreement, and the balance of the Agreement
shall remain in full force and effect.
12. APPLICABLE LAW. This Agreement is made and entered into and shall be
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governed by and construed in accordance with the laws of the State of Nebraska.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date this
Agreement is signed below by White.
DATED: August 24, 2000 /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Commercial Federal Bank,
A Federal Savings Bank
DATED: August 24, 2000 By: /s/ Xxxxxx X. Xxxxx
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Title: First Vice President
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