Exhibit 10.31
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release is made and entered into on
this ____ day of ____________, 2000, by and between Xxxxxx Financial, M.H.C.,
Xxxxxx Financial, Inc., Xxxxxx Savings Bank, and New Xxxxxx Financial, Inc., its
successors, assigns, subsidiaries, and affiliates (collectively "Xxxxxx") and
Xxxxxxx X. Xxxx ("Executive").
WHEREAS, Executive is currently employed as Senior Vice President, Lending
Division of Xxxxxx Savings Bank; and
WHEREAS, Executive has indicated his desire to voluntarily terminate his
employment as an employee and officer of Xxxxxx; and
WHEREAS, pursuant to Executive's voluntary termination of employment,
Xxxxxx is willing to provide certain salary continuation benefits to Executive.
NOW THEREFORE, in consideration of the foregoing, the promises and
covenants contained herein and other good and valuable consideration, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Termination of Employment. Executive and Xxxxxx hereby agree that
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Executive will voluntarily terminate his employment as an employee and officer
of Xxxxxx effective on the date which is the earlier of (a) sixty (60) days
after the effective date of the merger of York Financial, Inc. into New Xxxxxx
Financial, Inc. ("Merger"), or (b) the date, as selected by Xxxxxx and
communicated to Executive which is after the Merger but prior to the date
described in (a) above (the "Termination Date"). Provided that Executive has
not revoked this Agreement, once executed by him, within the revocation period
set forth in Paragraph 10(f), Executive's last day
of employment with Xxxxxx will be the Termination Date and following such date
Xxxxxx will pay or commence paying to Executive the benefits described in the
following Paragraphs.
2. Salary Continuation and Health Benefits. Commencing with the first
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payroll date following Executive's Termination Date, as described in Paragraph 1
above, Xxxxxx agrees: (a) to pay to Executive a monthly benefit equal to
$__________ commencing as of the date set forth above and continuing for a
period of twenty-four (24) months; (b) to pay a percentage of Executive's health
plan continuation coverage premium ("COBRA"), provided Employee elects COBRA
coverage, for the first twelve (12) months following Executive's Termination
Date, in an amount equal to the employer paid percentage then paid by Xxxxxx for
active employees under its group health plan. Provided however, Xxxxxx shall
cease making payments on behalf of Executive pursuant to this subparagraph 2(b)
if, prior to the expiration of the twelve (12) month period, Executive becomes
eligible to participate under any other group health plan.
3. References and Employer Property. All requests for references directed
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to Xxxxxx by third parties shall be directed to Vice President of Human
Resources of Xxxxxx. Upon Executive's termination of employment, Executive
agrees to return to Xxxxxx all property and documents of Xxxxxx then in his
possession.
4. Out-placement Services Xxxxxx agrees to provide up to $ 7,500 on
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behalf of Executive payable to an outplacement service of his/her choice.
5. Life Insurance. Xxxxxx confirms to Executive that Executive has the
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option to convert existing life insurance coverages maintained by Xxxxxx for
Executive for a period of thirty-one (31) days following Executive's termination
of employment. To the extent Executive does not elect to convert said life
insurance coverages to private policy coverages, all life
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insurance maintained by Xxxxxx covering Executive shall cease as of Executive's
termination of employment.
6. Death of Executive. If Executive should die after benefits have
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commenced under this Agreement but before receiving all such payments, Xxxxxx
shall pay the remaining benefits to the Executive's designated beneficiary.
7. Tax Withholding. Xxxxxx shall withhold any and all taxes which are
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required to be withheld from any benefits paid under this Agreement to
Executive.
8. Non-Solicitation Confidential Information. In consideration of Xxxxxx
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entering into this Agreement and agreeing to make payments to Executive pursuant
hereto, such payments to which Executive is otherwise not entitled to receive,
Executive covenants and agrees that from the date of execution of this Agreement
and at all times following Executive's Termination Date, he shall not directly
or indirectly, either as an individual or as a proprietor, stockholder, partner,
officer, director, employee, agent, consultant or independent contractor of any
individual, partnership, corporation or other entity (excluding an ownership
interest of one percent (1%) or less in the stock of a publicly traded company):
(a) participate in any way in hiring or otherwise engaging, or
assisting any other person or entity in hiring or otherwise engaging, on a
temporary, part-time, or permanent basis, any individual who was employed
by Xxxxxx during the two (2) year period immediately prior to Executive's
Termination Date; or
(b) assist, advise, or serve in any capacity, representative or
otherwise, any third party in any action against Xxxxxx or transaction
involving Xxxxxx; or
(c) divulge, disclose, or communicate to others in any manner
whatsoever, any confidential information of Xxxxxx, including, but not
limited to, the names and addresses of customers of Xxxxxx, as they may
have existed from time to time or of any of Xxxxxx' prospective customers,
work performed or services rendered for any customer, any method and/or
procedures relating to
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projects or other work developed by or for Xxxxxx, information relating to
audits, strategic planning, acquisition strategies, employment information,
and all other similar information. The restrictions contained in this
subparagraph (c) apply to all information regarding Xxxxxx, regardless of
the source who provided or compiled such information.
Executive understands and agrees that Xxxxxx will suffer irreparable harm
in the event that Executive breaches any of Executive's obligations under this
Paragraph 8, and that Executive's forfeiture of remaining payments under this
Agreement will be inadequate to compensate Xxxxxx for such breach. Accordingly,
Executive agrees that, in the event of a breach or threatened breach by
Executive of this Paragraph 8, Xxxxxx, in addition to and not in limitation of
any other rights, remedies or damages available to Xxxxxx at law or in equity,
shall be entitled to a temporary restraining order, preliminary injunction and
permanent injunction in order to prevent or to restrain any such breach by
Executive, or by any representatives and any and all persons directly or
indirectly acting for, on behalf of or with Executive.
9. Release of Claims. In consideration of the benefits to be provided by
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Xxxxxx to Executive, such benefits to which Executive is not otherwise entitled
to receive, Executive hereby agrees as follows:
(a) Executive knowingly and voluntarily releases and forever
discharges Xxxxxx, of and from any and all claims, known and unknown, which
Executive, his heirs, executors, administrators, successors, and assigns
have or may have against Xxxxxx that accrued or arose at any time prior to
the execution of this Separation Agreement and General Release, including,
but not limited to, any alleged violations of Title VII of the Civil Rights
Act; the Employee Retirement Income Security Act; the Americans with
Disabilities Act; the Family and Medical Leave Act; the Fair Labor
Standards Act; the Age Discrimination in Employment Act; the Older Workers
Benefit Protection Act; the Pennsylvania Human Relations Act; the
Pennsylvania Wage Payment and Collection Law; (S)(S) 1981-1988 of Title 42
of the U.S.C.; the Immigration Reform and Control Act; the National Labor
Relations Act; any amendments to the foregoing statutes; any other federal,
state, or local civil rights or employment-related law, regulation, or
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ordinance; any public policy, contract, tort, or common law, including
wrongful discharge, reliance, or promissory estoppel; and any allegations
for costs, fees, or other expenses, including attorneys' fees.
(b) Executive waives his right to file any action, charge, or
complaint on his own behalf, and to participate in any action, charge, or
complaint which may be made by any other person or organization on his
behalf, with any federal, state, or local judicial body, court, or
administrative agency against Xxxxxx, except where such waiver is
prohibited by law. Should any such action, charge, or complaint be filed,
Executive agrees that he will not accept any relief or recovery therefrom.
Executive shall reimburse Xxxxxx for the fees and costs, including
attorneys' fees, of defending such action, charge, or complaint.
(c) Executive agrees not to disclose any information regarding the
existence or substance of this Separation Agreement and General Release,
except to any attorney with whom Executive chooses to consult regarding
this Agreement, tax advisors, immediate family members, or where such
disclosure is required by law.
(d) Executive agrees that neither this Separation Agreement and
General Release nor the furnishing of the consideration for this Release
shall be deemed or construed at any time for any purpose as an admission by
Xxxxxx of any liability or unlawful conduct of any kind.
(e) In the event that Executive breaches or attempts to breach any
provision of this Paragraph 10, Executive agrees that Xxxxxx will be
entitled to proceed in any court of law or equity to stop or prevent such
breach, and will be entitled to any and all forms of relief, including
injunctive relief. Executive further agrees to reimburse Xxxxxx for all
fees and costs, including attorneys' fees, incurred as a result thereof.
(f) By signing this Agreement, Executive represents and agrees that:
(1) this Agreement is entered into knowingly and voluntarily;
(2) that he is receiving consideration from Xxxxxx in addition to
anything of value to which he is already entitled;
(3) that he has been given at least forty-five (45) days to
consider this Agreement and has chosen to execute it on the date set
forth above;
(4) that he knowingly and voluntarily intends to be legally bound
by this Agreement;
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(5) that even though Xxxxxx contends that it is not legally
required to do so, he has been provided with the job titles and ages
of all individuals within the same organizational unit who have not
terminated and who have not been offered benefits upon termination
(Exhibit "A");
(6) that he has been advised to consult with an attorney; and
(7) that he has seven (7) days following the execution of this
Agreement to revoke the same, in which case the obligations of the
parties to this Agreement shall be null and void.
10. Severability. Executive and Xxxxxx acknowledge that any restrictions
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contained in this Agreement are reasonable and that consideration for this
Agreement has been exchanged. In the event that any provision of this Agreement
shall be held to be void, voidable, or unenforceable, the remaining portions
hereof shall remain in force and effect.
11. Construction. This Agreement shall be construed in accordance with
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the laws of the Commonwealth of Pennsylvania
12. Captions. The captions used herein are for convenience and reference
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only and are in no way to be construed as defining, limiting or modifying the
scope or intent of the various provisions that they introduce.
13. Entire Agreement. This Agreement contains the entire understanding
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between the parties hereto and supersedes and renders null and void and of no
force and effect any prior written or oral agreements between them including a
Change in Control Agreement effective August 10, 1998, by and between Executive
and Xxxxxx. There are no representations, agreements, arrangements or
understandings, oral or written, between the parties hereto relating to the
subject matter of this Agreement which are not fully expressed herein.
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14. Binding Effect. It is the intention of the parties hereto to be
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legally bound by the terms hereof and it is further intended that this Agreement
be binding upon the respective heirs, successors, assigns, executors and
administrators of the parties.
15. Amendment. No amendment to this Agreement shall be binding unless in
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writing and signed by the parties hereto.
ATTEST: XXXXXX FINANCIAL, M.H.C.
______________________________ By:_________________________________
(Asst.) Secretary
(SEAL)
ATTEST: XXXXXX FINANCIAL, INC.
______________________________ By:_________________________________
(Asst.) Secretary
(SEAL)
ATTEST: XXXXXX SAVINGS BANK
______________________________ By:_________________________________
(Asst.) Secretary
(SEAL)
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ATTEST: NEW XXXXXX FINANCIAL, INC.
_________________________________ By:____________________________________
(Asst.) Secretary
(SEAL)
WITNESS: EXECUTIVE
_________________________________ _______________________________________
Xxxxxxx X. Xxxx
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