Exhibit 10
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AGREEMENT AND GENERAL RELEASE
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The Bank of Xxxxxx County, which maintains its principal offices at 000
Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Bank"), and Xxxxx X. Xxxxx, residing at
000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, his heirs, executors,
administrators, successors, and assigns (collectively referred to throughout
this Agreement as "Employee"), agree that:
1. Last Day of Employment. Employee's last day of employment with the Bank
is December 31, 2007.
2. Consideration. In consideration for signing this Agreement and General
Release ("Agreement") and compliance with the promises made herein, the Bank
agrees:
a. to pay to Xx. Xxxxx $75,000.00, less lawful deductions. Said amount
shall be paid to Xx. Xxxxx in thirty (30) equal, monthly installments of
$2,500.00 less lawful deductions ("monthly installment"), with the first monthly
installment being paid to Xx. Xxxxx on or before January 31, 2008 and the final
monthly installment being paid to Xx. Xxxxx on or before July 31, 2010. Monthly
installments shall be paid to Xx. Xxxxx on or before the last day of the month
in which they are due. Moreover, monthly installments only will commence
provided the Bank receives from Xx. Xxxxx an executed copy of this Agreement and
Xx. Xxxxx does not revoke his acceptance of this Agreement during the seven (7)
calendar day revocation period described in Paragraph 11 below; and,
b. Xx. Xxxxx previously was granted an option to purchase 12,000 shares of
the Bank's common stock at the exercise price of $3.9735 per share (the
"Options") pursuant to the terms of the Xxxxxx County Bancorp, Inc. 2000 Stock
Option Plan (the "Stock Option Plan") and related Stock Option Agreement. The
Bank agrees to repurchase all of the unexercised Options from Xx. Xxxxx for a
cash payment to him in an amount equal to the difference between the Fair Market
Value (as defined in the Stock Option Plan) per share of the Bank's common stock
on January 2, 2008 and the exercise price per share of the Options. Such Options
shall immediately cease to be exercisable.
3. No Consideration Absent Execution of this Agreement. Employee
understands and agrees he would not receive the monies and/or benefits specified
in Paragraph 2 above, except for his execution of this Agreement and the
fulfillment of the promises contained herein.
4. General Release of Claims. Employee knowingly and voluntarily releases
and forever discharges the Bank and its parent corporation, affiliates,
subsidiaries, divisions, predecessors, insurers, successors and assigns, and
their current and former employees, attorneys, officers, directors and agents
thereof, both individually and in their business capacities, and their employee
benefit plans and programs and their administrators and fiduciaries
(collectively referred to throughout the remainder of this Agreement as
"Employer"), of and from any and all claims, known and unknown, Employee has or
may have against Employer as of the date of execution of this Agreement,
including, but not limited to, any alleged violation of:
o Title VII of the Civil Rights Act of 1964;
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o The Civil Rights Act of 1991;
o Sections 1981 through 1988 of Title 42 of the United States Code;
o The Employee Retirement Income Security Act of 1974;
o The Immigration Reform and Control Act;
o The Americans with Disabilities Act of 1990;
o The Age Discrimination in Employment Act of 1967;
o The Workers Adjustment and Retraining Notification Act;
o The Occupational Safety and Health Act;
o The Fair Credit Reporting Act;
o The New York State Executive Law (including its Human Rights Law);
o The New York City Administrative Code (including its Human Rights Law);
o The New York State Labor Law;
o The New York wage and wage-hour laws;
o Any other federal, state or local civil, human rights, bias,
whistleblower, discrimination, retaliation, compensation, employment,
labor or other local, state or federal law, regulation or ordinance;
o Any amendments to the foregoing laws;
o Any benefit, payroll or other plan, policy or program;
o Any public policy, contract, third-party beneficiary, tort or common law
claim; or,
o Any claim for costs, fees, or other expenses including attorneys' fees.
5. Acknowledgments and Affirmations.
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a. Employee affirms he has not filed, caused to be filed, or presently is a
party to any claim against the Bank.
b. Employee also affirms he has been paid and/or has received all
compensation, wages, bonuses, commissions, and/or benefits to which Employee may
be entitled. Employee affirms he has been granted any leave to which he was
entitled under the Family and Medical Leave Act or related state or local leave
or disability accommodation laws.
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c. Employee further affirms he has no known workplace injuries or
occupational diseases.
d. Employee also affirms he has not divulged any proprietary or
confidential information of the Bank and will continue to maintain the
confidentiality of such information consistent with Employer's policies and
Employee's agreement(s) with the Bank and/or common law.
e. Employee further affirms he has not been retaliated against for
reporting any allegations of wrongdoing by the Bank or its officers, including
any allegations of corporate fraud. Both Employer and Employee acknowledge that
this Agreement does not limit either party's right, where applicable, to file or
participate in an investigative proceeding of any federal, state or local
governmental agency. To the extent permitted by law, Employee agrees that if
such an administrative claim is made, Employee shall not be entitled to recover
any individual monetary relief or other individual remedies.
6. Confidentiality and Non-Disparagement.
a. Employee shall not, from the date of this Agreement, except as compelled
by law or court order, publicize or disclose to any person or entity (excluding
Employee's immediate family, attorney and tax advisor, as set forth in Section
6(b) below), any term of or the making of this Agreement or the facts or
circumstances relating to the making of this Agreement. This covenant of
complete confidentiality includes, but is not limited to, the terms or the
making of this Agreement and Employee's receipt of the payments hereunder,
including the amount of said payments;
b. Other than to discuss the terms hereof with Employee's immediate family,
attorney and tax advisor (each of whom must first agree not to make any
disclosure that Employee himself could not make), Employee will not disclose to
anyone any fact, document or other information produced or obtained in
connection with this Agreement. Employee shall be liable for any damages caused
by his own or any other person's established violation of this covenant or any
other clause of this Agreement (provided such person is one to whom he has
disclosed any fact, document or other information produced or obtained in
connection with this Agreement). Likewise, the Bank will not disclose to anyone
any fact, document or other information produced or obtained in connection with
this Agreement except for disclosures required for operational purposes and by
law;
c. Employee further agrees he will not contact any current or former Bank
employees for the purpose of discussing his employment with the Bank or the
cessation thereof;
d. Employee confirms that, as of the date of the execution of this
Agreement, he has not told anyone about the terms of this Agreement or the
payments being made hereunder other than his immediate family, present attorney
and tax advisor;
e. Employee affirms he has returned all of the Bank's property, documents,
and/or any confidential information in his possession or control. Employee also
affirms he is in possession of all of his property that he had at the Bank's
premises and that the Bank is not in possession of any of Employee's property;
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f. Employee covenants and agrees he will not hereafter engage in conduct
that involves the making or publishing of written or oral statements or remarks,
(including, without limitation, the repetition or distribution of derogatory
rumors, allegations, negative reports or comments) which are disparaging,
deleterious or damaging to the integrity, reputation or good will of the
Employer. In addition, Employee agrees not to disrupt or interfere with
Employer's business by engaging in, contributing to or supporting malicious,
destructive or anticompetitive conduct including, but not limited to,
unauthorized use, access or destruction of Employer's premises or properties, or
computer, telephone or security systems; and,
g. Employee understands and agrees that violation of this covenant of
confidentiality and non-disparagement will constitute a material breach of this
Agreement, which will cause Employer to suffer immediate, substantial and
irreparable injury and which will be a sufficient basis for an award of
injunctive relief and monetary damages (without affecting the remainder of this
Agreement). If a court or other forum determines that Employee (or any person of
whom he made disclosure) breached or caused any breach of this covenant of
confidentiality and non-disparagement or of any other clause of this Agreement,
Employee will: (i) forfeit any remaining consideration payments owed to him
under Paragraph 2 above; (ii) return to the Bank all consideration already paid
to him pursuant to this Agreement except for $1,000.00; (i) be liable for all
damages caused to Employer as a result of the breach; and, (ii) reimburse
Employer for its reasonable attorney's fees and costs incurred enforcing this
provision.
7. Governing Law and Interpretation. This Agreement shall be governed and
conformed in accordance with the laws of the State of New York without regard to
its conflict or choice of law provisions. In the event the Employee or Employer
breaches any provision of this Agreement, Employee and Employer affirm that
either may institute an action to specifically enforce any term or terms of this
Agreement. If any provision of this Agreement is declared illegal or
unenforceable by any court of competent jurisdiction, the parties agree the
court shall have the authority to modify, alter or change the provision(s) in
question to make the Agreement legal and enforceable. If this Agreement cannot
be modified to be enforceable, excluding the general release language, such
provision shall immediately become null and void, leaving the remainder of this
Agreement in full force and effect. If the general release language is found to
be illegal or unenforceable, Employee agrees to execute a binding replacement
release or, if requested by the Employer, return the monies paid pursuant to
this Agreement.
8. Amendment. Except as provided in the preceding paragraph, this Agreement
may not be modified, altered or changed except upon express written consent of
both parties wherein specific reference is made to this Agreement.
9. Resolution of Disputes. Any controversy or claim arising out of this
Agreement, or the breach thereof, shall decided by an appropriate New York State
or federal court, and all such claims shall be adjudicated by a judge sitting
without a jury.
10. Nonadmission of Wrongdoing. The parties agree that neither this
Agreement nor the furnishing of the consideration for this Agreement shall be
deemed or construed at anytime for any purpose as an admission by either party
of any liability or unlawful conduct of any kind.
11. Revocation. Employee may revoke this Agreement for a period of seven
(7) calendar days following the day he executes this Agreement. Any revocation
within this period must be submitted, in writing, to Xxxxxxx X. Main, Vice
President & Assistant Secretary Human Resources, and state, "I hereby revoke my
acceptance of our Agreement and General Release." The revocation must be
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personally delivered to Xxxxxxx X. Main or her designee, or mailed to Xxxxxxx X.
Main and postmarked within seven (7) calendar days of execution of this
Agreement. If the last day of the revocation period is a Saturday, Sunday, or
legal holiday in New York, then the revocation period shall not expire until the
next following day which is not a Saturday, Sunday, or legal holiday.
12. Entire Agreement. This Agreement sets forth the entire agreement
between the parties hereto, and fully supersedes any prior agreements or
understandings between the parties. Employee acknowledges that he has not relied
on any representations, promises, or agreements of any kind made to him in
connection with his decision to accept this Agreement, except for those set
forth in this Agreement.
13. Section Headings. Section headings are used herein for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement.
14. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and each of which shall together constitute
one and the same agreement. This Agreement will not become enforceable until
executed by the Employer.
15. Legal Fees. Each party will be responsible for its own legal fees or
costs, if any, incurred in connection with the negotiation and settlement of
this Agreement.
16. Competence to Waive Claims. At the time of considering or executing
this Agreement, Employee was not affected or impaired by illness, use of
alcohol, drugs or other substances or otherwise impaired. Employee is competent
to execute this Agreement and knowingly and voluntarily waives any and all
claims he may have against Employer. Employee certifies that he is not a party
to any bankruptcy, lien, creditor-debtor or other proceedings which would impair
his right or ability to waive all claims he may have against Employer.
EMPLOYEE HAS BEEN ADVISED THAT HE HAS TWENTY-ONE (21) CALENDAR DAYS TO
REVIEW THIS AGREEMENT AND HAS BEEN ADVISED IN WRITING TO CONSULT WITH AN
ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT.
EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS
AGREEMENT DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE (21)
CALENDAR DAY CONSIDERATION PERIOD.
HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES AND TO
RECEIVE THE SUMS AND BENEFITS IN PARAGRAPH 2 ABOVE, EMPLOYEE FREELY AND
KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO
WAIVE, SETTLE AND RELEASE ALL CLAIMS HE HAS OR MIGHT HAVE AGAINST EMPLOYER.
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IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed
this Agreement as of the date set forth below:
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Date: November 8, 2007
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THE BANK OF XXXXXX COUNTY
By: /s/ Xxxxxx X. Xxxxxx
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[Signatory]
Date: November 8, 2007
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