RETIREMENT AGREEMENT AND GENERAL RELEASE
READ IT CAREFULLY
NOTICE TO XXXXX X. XXXXXXXX:
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This is a very important legal document, and you should carefully review and
understand the terms and effect of this document before signing it. By signing
this Retirement Agreement and General Release ("Agreement"), you are agreeing to
completely release First Federal Savings Bank, FedFirst Financial Corporation,
FedFirst Mutual Holding Company and others from all liability to you. Therefore,
you should consult with an attorney before signing the Agreement. If you choose
to sign the Agreement, you will have seven (7) days following the date of your
signature to revoke the Agreement, and the Agreement shall not become effective
or enforceable until the revocation period has expired.
This is a Retirement Agreement and General Release by and between Xxxxx X.
Xxxxxxxx and his heirs, administrators, beneficiaries, and assigns (individually
and collectively "Xxxxxxxx") and First Federal Savings Bank, FedFirst Financial
Corporation and FedFirst Mutual Holding Company, Monessen, Pennsylvania
(sometimes collectively referred to hereinafter as the "Employers"). The
parties, intending to be legally bound, agree as follows:
1. RETIREMENT; PAYMENTS TO XXXXXXXX, ETC.
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a. Effective September 30, 2005, Xxxxxxxx hereby voluntarily
resigns (i) from employment with the Employers by reason of his retirement and
(ii) as a member of the Board of Directors of each of First Federal Savings
Bank, FedFirst Financial Corporation and FedFirst Mutual Holding Company as well
as the board of directors of any subsidiary or affiliate of the foregoing not
specifically identified herein.
b. Following the effective date of this Agreement, the Employers
shall pay to Xxxxxxxx a single payment equal to the sum of the separate items
set forth in Appendix A (attached hereto), less all appropriate taxes and
withholdings. Such payment shall be made not later than seven (7) business days
after the effective date of this Agreement.
c. The Employers shall take such action as may be necessary to
terminate the lease covering the vehicle provided to Xxxxxxxx by First Federal
Savings Bank and transfer title to the vehicle to Xxxxxxxx as soon as is
reasonably practicable after the effective date of this Agreement.
d. Except to the extent of any amendments contemplated by this
Agreement, the Employers acknowledge this Agreement shall not affect the rights
of Xxxxxxxx under the following plans and agreements, which rights shall be
determined by reference to the provisions of the applicable plans and
agreements, except as noted below:
o Executive Supplemental Retirement Agreement dated June 30,
1999 ("SERP");
o Executive Life Insurance Endorsement Method Split Dollar
Agreement date June 30, 1999;
o Consulting Agreement between Xxxxxxxx and First Federal
Savings Bank dated June 30, 1999 (the "Consulting
Agreement"); and
o First Federal Savings Bank 401(k) plan.
This Agreement shall not affect Xxxxxxxx'x right to elect continuation
coverage under any employee welfare benefit plan sponsored by the Employers to
the extent such election is authorized under federal or state law. Upon
Xxxxxxxx'x election to continue health and dental insurance coverage under
COBRA, the Bank shall pay the cost of such coverage through February 2006 with
respect to Xxxxxxxx and through July 2006 with respect to Xxxxxxxx'x spouse.
Following the date Xxxxxxxx attains age 65, the Employers shall make available
to Xxxxxxxx medicare supplement coverage for the remainder of Xxxxxxxx'x life at
a cost to the Employers not to exceed $212 per month. Any increase in the cost
of such coverage to a level in excess of $212 per month shall be borne solely by
Xxxxxxxx (the "excess premium"). Following the date Xxxxxxxx'x spouse attains
age 65, the Employers shall make available to her coverage for her lifetime
under the medicare supplement program in which Xxxxxxxx participates at her sole
expense (the "spousal premium"). In the event that prior to the due date of any
premium payable with respect to such medicare supplement coverage, Xxxxxxxx has
not paid to the Employers any amount due in the form of excess premiums or
spousal premiums, the Employers shall be under no obligation to advance such
amounts and shall not be liable for any occurrence arising out of the lapse of
such coverage for non-payment of premium. The Employers agree to provide
Xxxxxxxx or his spouse, as applicable, with reasonable notice of the amount of
and due date for such premiums. Notwithstanding anything in this Agreement to
the contrary, the Employers reserve the right to discontinue the medicare
supplement program at any time. In the event such program is discontinued,
Xxxxxxxx and, if applicable, his spouse, shall receive reasonable notice of the
Employers' intention to discontinue the program and, upon the discontinuance of
the program, the Employers shall provide Xxxxxxxx with a monthly payment of $212
for the remainder of his life. In addition, Xxxxxxxx and the Employers agree
that, as soon as practicable after the effective date of this Agreement, (i) the
SERP shall be amended to reflect a normal retirement age equal to Xxxxxxxx'x age
at September 30, 2005 and (ii) the Consulting Agreement shall be amended to
provide for payment of not more than $148,500 in equal monthly installments over
the period October 1, 2005 through the month in which Xxxxxxxx'x 68th birthday
occurs. Such amendments shall be executed by the parties to this Agreement.
e. In the event that the Employers breach any of their
obligations under paragraph b, Xxxxxxxx agrees that his sole remedy shall be an
action to recover the amount set forth in Appendix A to the extent not
previously paid, and any recovery shall be limited to such amount. Xxxxxxxx
further agrees that, in any and/or all such circumstances, all of his
obligations and releases under this Agreement will remain in full force and
effect.
2. COSTS, INCLUDING ATTORNEYS' FEES. Xxxxxxxx understands and
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agrees that the Employers shall not be liable to Xxxxxxxx and/or any present or
former attorney for any costs, expenses, or attorneys' fees of any kind or
amount. Furthermore, Xxxxxxxx expressly agrees that he is not to be considered
to be the "prevailing" or "successful" party within the meaning of any statute,
rule, or other law.
3. MUTUAL RELEASE.
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a. RELEASE BY XXXXXXXX. In exchange for the consideration set
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forth in this Agreement and intending to be legally bound, Xxxxxxxx, and all
other persons or entities claiming with, by, or through him, hereby releases and
forever discharges the Employers, their predecessors, successors, affiliates,
subsidiaries, parents, partners and all of their present and past directors,
officers, agents, employees and attorneys, and all other persons or entities who
could be said to be jointly or severally liable with them (individually and
collectively the "Releasees") from any and all liabilities, claims, actions,
causes of action or suits presently asserted or not asserted, accrued or
unaccrued, known or unknown, that Xxxxxxxx had, now has, or may have or could
claim to have against them, from the beginning of time to the date of execution
of this Agreement, including, but not limited to, all claims and rights: (i) in
any way arising from or based upon Xxxxxxxx'x employment with the Employers,
such as and including any indemnification of Xxxxxxxx regarding his actions as a
director or officer of the Employers, which indemnification is no longer
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required to be provided by the Employers to Xxxxxxxx except to the extent that
such release of indemnification coverage by Xxxxxxxx is not permitted by
applicable law; or (ii) which relate in any way to the termination of Xxxxxxxx'x
employment and other duties with the Employers, whether pursuant to any oral or
written agreements that precede this Agreement. For the same exchange of
consideration referenced immediately above, and intending to be legally bound,
Xxxxxxxx, and all other persons or entities claiming with, by, or through him,
also releases the Releasees from any and all liabilities, claims, actions,
causes of action or suits presently asserted or not asserted, accrued or
unaccrued, known or unknown, that Xxxxxxxx had, now has, or may have or could
claim to have against them, from the beginning of time to the date of execution
of this Agreement, including, but not limited to, all claims and rights in any
way arising from or based upon any claims for wrongful discharge, libel,
slander, breach of contract, impairment of economic opportunity, intentional
infliction of emotional distress or any other tort, or claims under federal,
state, or local constitutions, statutes, regulations, ordinances, or common law,
including without limitation claims under the Federal Age Discrimination in
Employment Act, the Federal Older Workers Benefit Protection Act, Title VII of
Civil Rights Act of 1964, the Americans with Disabilities Act, the Pennsylvania
Human Relations Act, Employee Retirement Income Security Act of 1974, the Civil
Rights Acts of 1866, 1871, 1964, and 1991, the Rehabilitation Act of 1973, the
Equal Pay Act of 1963, the American with Disabilities Act of 1990, the Family
and Medical Leave Act of 1993, the Sarbanes Oxley Act of 2002, and any other
statute or law.
b. RELEASE BY THE EMPLOYERS. In exchange for the consideration
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set forth in this Agreement and intending to be legally bound, the Employers
hereby knowingly and voluntarily release and forever discharge Xxxxxxxx from any
and all actions, causes of actions, suits, damages, judgments, claims, and/or
demands sounding in negligence, brought in law or in equity, (hereinafter
collectively referred to as "negligence claims"), which negligence claims the
Employers ever had, now or may or might in the future have against Xxxxxxxx,
based on any acts, omissions, transactions or occurrences occurring prior to or
on the date of execution of this Agreement. Notwithstanding the foregoing,
nothing in this Agreement shall be deemed to be a waiver or release by the
Employers of any claims against Xxxxxxxx which are based on or arise out of: (i)
a customer relationship between Xxxxxxxx and the Employers, including but not
limited to, lending relationships between Xxxxxxxx and the Employers; or (ii)
intentional or fraudulent acts or conduct; or (iii) any alleged misappropriation
of the Employers' funds or the Employers customer funds, for any purposes except
to the extent that any such funds have been reimbursed by Xxxxxxxx. Also, to the
extent that a waiver or release by the Employers of any particular claim or type
of claim would be prohibited under federal or state law, including, without
limitation, regulations restricting indemnification or any threatened, pending
or completed legal or regulatory action, suit or proceeding, such a waiver shall
not be effective and is not provided by the Employers to Xxxxxxxx,
notwithstanding any statement to the contrary in this Agreement.
4. NO ADMISSION OF WRONGDOING. The parties hereto agree that this
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Agreement is not to be construed as a finding or admission of wrongdoing or
liability or illegal or unethical conduct by any party. Nothing in this
Agreement shall constitute precedent or evidence in any investigation,
proceeding, or trial, with the exception that this Agreement shall be admissible
evidence in any proceeding to enforce its terms or secure a remedy for breach of
its terms.
5. CONFIDENTIAL INFORMATION.
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x. Xxxxxxxx agrees that he will not communicate the terms and
conditions of the discussions pertaining to and preceding finalization of this
Agreement to any persons other than his spouse, attorneys, and tax advisors.
x. Xxxxxxxx acknowledges that, during the course of the
employment relationship, he has or will become privy to confidential and
proprietary business information belonging to the Employers ("Confidential
Information"), the unauthorized disclosure of which could cause serious and
irreparable
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injury to the Employers. The information includes, but is not limited to,
information concerning existing and prospective expansion plans; existing and
potential financing arrangements; existing and potential marketing plans and
activities; proprietary computer software programs and applications; business
plans and strategies and other non-public information. Xxxxxxxx agrees to hold
and safeguard the Confidential Information in trust for the Employers, their
successors and assigns, and agrees that he will not, for a period of three (3)
years from the date of this Agreement, misappropriate, use for his own
advantage, disclose or otherwise make available to anyone who is not an officer
of the Employers, for any reason, any of the Confidential Information,
regardless of whether the Confidential Information was developed or prepared by
him or others. The scope of this Agreement is not limited to information that is
patented, patentable, copyrighted or technically classifiable as a trade secret.
6. NOTICE OF REQUESTS FOR INFORMATION.
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a. In the event that Xxxxxxxx receives a subpoena, interrogatory,
document request, or request for admission, notice of deposition, or other legal
paper ("legal document") or other written or any oral request, that might call
for disclosure of Confidential Information or information relating to the
Employers, Xxxxxxxx shall as soon as possible and in any event no later than
forty-eight (48) hours after receipt of such request, notify the Employers and
its counsel, by telephone and in writing, of such request. The notice shall
include the information contained in the legal document or any other request,
and shall attach a copy of such legal document, or written request. If a request
for information relating to the Employers is made orally, then Xxxxxxxx shall,
as soon as possible and in any event no later than seventy-two (72) hours after
receipt of the request, notify the Employers and its counsel by telephone and in
writing of receipt of the request and provide to the Employers such information
Xxxxxxxx has concerning the request, including but not limited to the date, time
and place the request was received, the party or parties from whom the request
was received, the specific nature and substance of the request and the purpose
of the request.
b. If Xxxxxxxx receives any legal document, or other written or
oral request for confidential information, he shall also notify the person or
persons seeking disclosure of information relating to the Employers, and, if
known, the person, persons or entity on whose behalf the request was made, that
the information requested is confidential and subject to this Agreement, and
that it may not be revealed.
x. Xxxxxxxx shall provide, with the Employers to reimburse all
properly verified and pre-approved out-of-pocket expenses, his assistance and
cooperation in any efforts by the Employers to avoid the disclosure of
Confidential Information, including, but not limited to, any attempts by the
Employers to obtain a protective order from a Court prohibiting its disclosure.
If the Employers are unable to obtain a protective order, then Xxxxxxxx will
only disclose that Confidential Information which he is legally required to
disclose.
7. COOPERATION AND NON-DISPARAGEMENT. The parties agree that they
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will not disparage or make derogatory comments about each other or the
Employers' present and former officers, directors, employees, agents, or
attorneys, or their business practices.
8. AGREEMENT NOT TO SUE. Xxxxxxxx agrees never to sue, institute,
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cause to institute, assist any other person or entity in instituting or permit
to be instituted any legal or administrative proceeding relating to or arising
out of any claim and/or cause of action released in paragraph 3 above. Xxxxxxxx
further agrees that if he files or causes to be filed any claim or cause of
action which is found to be barred in whole or in part by this Agreement, he
will pay all attorneys' fees and costs incurred by the defending party, its
present and former officers, directors, employees, agents and attorneys, in
defending against those barred claims.
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9. INJUNCTIVE RELIEF. Xxxxxxxx agrees that any breach of the
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agreements and representations set forth in paragraphs 5, 6, 7, and 8 will cause
the Employers irreparable harm, that such injury cannot be remedied adequately
by the recovery of monetary damages, that upon such a breach the Employers shall
be entitled, in addition to and not in lieu of, any and all other remedies, to
injunctive or other equitable relief without the posting of any bond or
undertaking and that such injunctive and/or equitable relief will not work a
hardship on him. The Employers further agree that in any and/or all such
circumstances, all of their obligations under this Agreement will remain in full
force and effect.
10. CHOICE OF LAW. This Agreement shall be governed by, construed
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under and enforced pursuant to the laws of the Commonwealth of Pennsylvania,
except to the extent that federal law applies.
11. AGREEMENT FREELY AND VOLUNTARILY ENTERED INTO. Xxxxxxxx
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warrants and represents that he has signed this Agreement after review and
consultation with legal counsel of his choice and that he understands this
Agreement and signs it freely, knowingly and voluntarily, without any legal
reservation and fully intending to be legally bound hereby. Xxxxxxxx
acknowledges that he was provided an opportunity to review and consider this
Agreement for twenty-one (21) calendar days before the date of his resignation
(September 30, 2005) and that he has voluntarily waived this twenty-one (21) day
consideration period. Xxxxxxxx further acknowledges and agrees that this
Agreement does not release him from any obligation under any contract or
agreement he entered into as a customer of First Federal Savings Bank and that
such obligations shall be determined solely by reference to the terms of such
contract or agreement; provided, however, that to extent such action is not
inconsistent with such contract or agreement or any applicable law or
regulation, First Federal Savings Bank reserves the right to set-off any
payments otherwise due Xxxxxxxx under this Agreement in the event of a default
by Xxxxxxxx in his obligations thereunder.
12. COMPLETE WRITTEN SETTLEMENT. This Agreement expresses a full
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and complete settlement of all matters outstanding between Xxxxxxxx and the
Employers. Xxxxxxxx agrees that there are absolutely no agreements or
reservations relating to Xxxxxxxx'x retirement and Xxxxxxxx'x release of the
Employers that are not clearly expressed in writing herein. This Agreement may
not be modified except in writing signed by all parties hereto. Xxxxxxxx
specifically acknowledges and agrees that, as of the effective date of this
Agreement, the Employment Agreement between Xxxxxxxx, First Federal Savings Bank
and FedFirst Financial Corporation dated as of April 6, 2005 ("Employment
Agreement") is terminated and, thereafter, shall be without force or effect.
13. BINDING ON SUCCESSORS AND ASSIGNS. This Agreement shall be
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binding upon and inure to the benefit of the parties hereto and their respective
heirs, successors and assigns.
14. COUNTERPARTS. This Agreement may be executed in multiple
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counterparts, and shall be fully valid, legally binding and enforceable whether
executed in a single document or in such counterparts.
15. TERMINATION OF THIS AGREEMENT.
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a. Notwithstanding any other provisions of this Agreement, this
Agreement shall terminate automatically upon Xxxxxxxx'x death and Xxxxxxxx'x
rights under this Agreement shall cease as of the date of such termination.
b. Notwithstanding any other provisions of this Agreement, the
Employers may terminate this Agreement if Xxxxxxxx breaches any of the
agreements and representations set forth in paragraphs 5, 6, 7, and 8 of this
Agreement.
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16. REGULATORY COMPLIANCE. Notwithstanding any other provision in
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this Agreement, the Employers' obligations hereunder are subject to compliance
with all applicable federal and state regulatory requirements. The Employers
may, at any time, take such action it deems necessary to comply with all such
applicable regulatory requirements, including suspending payments under this
Agreement or terminating the Agreement in its entirety. Any payments made or
benefits provided to Xxxxxxxx pursuant to this Agreement, or otherwise, are
subject to and conditioned upon compliance with 12 U.S.C. Section 1828(k) and
any rules and regulations promulgated thereunder and the provisions of 12 C.F.R.
Section 563.39.
* * *
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AGREED TO AND INTENDING TO BE LEGALLY BOUND HEREBY, THE PARTIES BELOW HAVE
EXECUTED THIS RETIREMENT AGREEMENT AND GENERAL RELEASE AS OF THE 9TH DAY OF
SEPTEMBER, 2005.
WITNESS:
/s/ Xxxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxxx Xxxxxxx Xxxxx X. Xxxxxxxx
Title: Secretary
ATTEST: FIRST FEDERAL SAVINGS BANK
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxx
Title: Secretary Title: Vice Chairman of the
Board of Directors
ATTEST: FEDFIRST FINANCIAL CORPORATION
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxx
Title: Secretary Title: Vice Chairman of the
Board of Directors
ATTEST: FEDFIRST MUTUAL HOLDING COMPANY
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxx
Title: Secretary Title: Vice Chairman of the
Board of Directors
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APPENDIX A
Payment representing continuation of base salary through 12/31/06: $218,750
Payment in lieu of 2005 and 2006 ESOP allocations: $ 20,000
Payment in lieu of remaining 2005 and 2006 employer match under Employers' 401(k) Plan: $ 14,000
Payment in lieu of remaining 2005 and 2006 discretionary profit sharing $ 16,400
Enhanced Payment equal to Employers' cost of certain welfare benefits (life, disability)
through 12/31/06 and miscellaneous benefits : $ 7,000
Payment in lieu of continuing director compensation (36 months): $ 64,800
TOTAL PAYMENT UNDER PARAGRAPH 1 OF THE AGREEMENT: $340,950
