RETIREMENT AGREEMENT
This RETIREMENT AGREEMENT ("Agreement") is entered into this 30th day
of April, 2004 ("Effective Date") by and among Reserve Bancorp, Inc. (the
"Company") with its principal place of business headquartered in Pittsburgh,
Pennsylvania, Reserve Bank ("Bank"), a federally chartered savings bank having
its principal place of business located in Pittsburgh, Pennsylvania and Xxxxxxx
X. Xxxxxx ("Employee").
WHEREAS, Employee has previously served the Company and the Bank as its
President and a member of the board of directors;
WHEREAS, the Company recognizes the specialized knowledge and expertise
of the Employee related to the business affairs of the Company and the Bank; and
WHEREAS, Employee and the Company desire to enter into a retirement and
non-competition agreement upon the terms and conditions hereinafter contained;
NOW, THEREFORE, in consideration of the covenants and terms contained
in this Agreement as set forth herein and of the mutual benefits accruing to
Company, the Bank and to Employee from the retirement and non-competition
agreement between the parties as set forth by the terms of this Agreement,
Company, Bank and Employee, each intending to be legally bound, hereby agree as
follows:
1. Retirement.
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This Agreement shall constitute written notice from the Employee and
acceptance by the Company, the Bank, and all other subsidiaries of such entities
that effective as of April 30, 2004, the Employee hereby irrevocably resigns as
a director of the Company, the Bank, and all other subsidiaries of such entities
(collectively, the "Companies"). In addition, this Agreement shall constitute
irrevocable written notice of resignation and early retirement by the Employee
and acceptance by the Companies on April 30, 2004, that as of December 31, 2004
("Termination Date"), the Employee hereby terminates his status as an employee
of the Companies. During the period from April 30, 2004 through the Termination
Date, the Employee shall remain available upon request by the President of the
Company or the Bank to furnish information and advice that may be reasonably
requested of him from time to time with regard to the prior operations and
activities of the Company and the Bank and related records. During such period
from April 30, 2004 through the Termination Date, the Bank shall not be
obligated to furnish the Employee with office facilities or use of office
equipment of the Company or the Bank, nor shall the Employee be authorized to
utilize any Company or Bank charge accounts, credit cards or other credit
facilities which would obligate the Companies to make payment to any party,
except upon specific invitation or authorization by the Bank President.
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2. Non-Competition and Confidential Business
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During the period commencing on the Effective Date and ending as of
December 31, 2007;
(a) Employee will not, without the express written consent of the
Companies, directly or indirectly communicate or divulge to, or use for his own
benefit or for the benefit of any other person, firm, association, or
corporation, any of the trade secrets, proprietary data or other confidential
information communicated to or otherwise learned or acquired by the Employee
from the Companies ("Confidential Information"), except that Employee may
disclose such matters to the extent that disclosure is required by a court or
other governmental agency of competent jurisdiction.
(b) Employee will not contact (with a view toward selling any product
or service competitive with any product or service sold or proposed to be sold
by the Companies) any person, firm, association or corporation (A) to which the
Companies sold any product or service during the five years prior to the
Effective Date, (B) which Employee solicited, contacted or otherwise dealt with
on behalf of the Companies, or (C) which Employee was otherwise aware was a
client of the Companies. Employee will not directly or indirectly make any such
contact, either for his own benefit or for the benefit of any other person,
firm, association, or corporation.
(c) Employee hereby agrees that he shall not, on his own behalf or on
behalf of others, employ, solicit, or induce, or attempt to employ, solicit or
induce, any employee of the Companies, for employment with any financial
services enterprise (including but not limited to a savings and loan
association, bank, credit union, or insurance company), nor will the Employee
directly or indirectly, on his behalf or for others, seek to influence any
employee of the Companies to leave the employ of the Companies.
(d) Employee will not make any public statements regarding the
Companies without the prior consent of the Companies, and the Employee shall not
make any statements that disparage the Companies or the business practices of
the Companies. At all times on and after the Effective Date, the Employee will
make no representations that any of his personal or professional activities are
approved by, endorsed by, being promoted by or made in cooperation with the
Companies, unless prior written approval is obtained from the Companies. The
Company shall not knowingly or intentionally make any statements that disparage
the Employee.
(e) Employee shall not:
(i) propose to the Company or any other person any
transaction between a third-party and the Company and/or its
security holders or involving any of its securities or
security holders;
(ii) acquire, offer to acquire, or agree to acquire
or assist, advise or encourage any other person or entity in
acquiring, directly or indirectly, by purchase, tender offer
or otherwise, any voting securities or direct or indirect
rights to acquire
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any voting securities of the Company or any subsidiary
thereof, or of any successor to, or person in control of the
Company, or any asset of the Company or any subsidiary or
division thereof or of any such successor or controlling
person; provided that such limitations on the activities of
the Employee shall not apply to such Employee with respect
to any proposal or transaction presented by a third-party to
the Company which shall be approved or endorsed by the
Company in advance of any public announcement of such
proposal or transaction for actions taken by the Employee
after such Company approval or endorsement;
(iii) make, or in any way participate, directly or
indirectly, in any "solicitation" of "proxies" to vote (as
such terms are used in the rules of the Securities and
Exchange Commission), or seek to advise or influence any
person or entity with respect to the voting of any voting
securities of the Company;
(iv) make any public announcement with respect to, or
submit a proposal for, or offer of (with or without
conditions) any extraordinary transaction involving the
Company or any of its securities or assets;
(v) form, join or in any way participate in a "group"
as defined in Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended, or the change in control rules of the
Office of Thrift Supervision (12 C.F.R. part 574) in
connection with any of the foregoing.
(vi) otherwise act alone or "in concert" with others
to seek to "control" the management, Board of Directors or
policies of the Company, or any subsidiary thereof, within the
meaning of 12 C.F.R. Part 574.
(f) Employee acknowledges and agrees that irreparable injury will
result to the Companies in the event of a breach of any of the provisions of
this Section 2 (the "Designated Provisions") and that the Companies will have no
adequate remedy at law with respect thereto. Accordingly, in the event of a
material breach of any Designated Provision, and in addition to any other legal
or equitable remedy the Companies may have, the Companies shall be entitled to
the entry of a preliminary and a permanent injunction (including, without
limitation, specific performance by a court of competent jurisdiction located in
the Commonwealth of Pennsylvania, or elsewhere), to restrain the violation or
breach thereof by Employee, and Employee shall submit to the jurisdiction of
such court in any such action.
3. Compensation
------------
a. Company agrees to pay Employee for his commitments and agreements
as contained herein, including Section 2 herein, in lieu of any
other salary or compensation for services to be rendered from the
Effective Date through the Termination Date, the aggregate
compensation of $38,900.00 payable in the form of eight (8) equal
cash
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payments of $4,862.50 per month (less applicable tax withholding)
during the months of May 2004 through December 2004. The Employee
and the Company acknowledge that compliance by the Employee with
the conditions set forth at Section 2, herein, is an essential
component of this Agreement, and that such compliance is
necessary for the Company to obtain the full value of its
consideration paid under this Agreement. The parties agree that
Employee shall not be entitled to participate in or receive
benefits under any Company or Bank programs maintained for its
employees, except as specifically agreed to by the parties and
detailed herein.
b. During the period of continued employment from the Effective Date
and ending on the Termination Date, the Employee shall continue
to be eligible to participate in the Bank's group life insurance
program, eye care insurance coverage, dental insurance coverage,
employee checking program, employee loan discount program, the
Bank's Employee Stock Ownership Plan, and the Bank's 401k plan.
The stock options to purchase shares of stock of the Company held
by the Employee as of the Termination Date shall cease to be
exercisable thereafter in accordance with their initial
provisions. All stock options held by the Employee as of the
Termination Date that are not yet exercisable shall be forfeited
as of the Termination Date. All stock awards under the Bank's
2003 Restricted Stock Plan that have not been earned and vested
as of the Termination Date shall be forfeited as of such date.
4. Releases and Covenants
----------------------
(a) Employee hereby irrevocably and unconditionally releases,
acquits, and forever discharges the Companies, its owners, parent,
subsidiaries, affiliates, related entities, officers, directors,
agents, and employees, from any and all claims, demands, or causes of
action based upon any past action, omission, or event, whether known or
unknown, and whether or not in litigation which Employee may have or
which could be asserted by another on Employee's behalf, based on any
action, omission, or event relating to Employee's employment at the
Companies and/or the cessation thereof through the date Employee
executes this Agreement (collectively, the "General Release"). This
General Release includes actions claiming violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., the
Americans with Disabilities Act, the Age Discrimination in Employment
Act, as amended by the Older Workers' Benefit Protection Act, all state
and local fair employment and or anti-discrimination laws and
regulations, and any other applicable federal, state, or local law,
order or regulation. This General Release also includes any claims for
wrongful discharge or that the Companies have dealt with Employee
unfairly or in bad faith, and actions raising tortious claims, actions
raising any claim of express or implied contract of employment, or any
other cause of action or claims of violation of common law. This
General Release is for any and all relief, without regard to its form
or characterization. Included in this General Release are any and all
claims for attorneys' fees and for future damages allegedly arising
from the alleged continuation of the effects of any past action,
omission, or event.
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(b) Employee further states that he has carefully read the
foregoing, has had sufficient opportunity to review and deliberate the
foregoing with or without counsel of Employee's own choosing, has been
advised of the opportunity to consult with an attorney, has had the
advice of counsel of his choosing, knows and understands the contents
of this Agreement and related General Release, and signs the same as
Employee's free and independent act. No inducements, representations,
or agreements have been made or relied upon to make this Agreement
except as stated in this Agreement.
(c) Employee understands and acknowledges that the General
Release and waiver of claims contained herein is exchanged for a
portion of the compensation described at Section 3, herein, which
compensation the Employee is not otherwise entitled to receive.
(d) Employee understands that he has a period of seven (7)
days from the date of executing this Agreement during which time
Employee shall have the right to revoke this Agreement. Any such
revocation shall be in writing and delivered to the Chairman of the
Board of the Company.
(e) Employee further agrees not to xxx the Companies or any or
all of its owners, parent, subsidiaries, affiliates, related entities,
officers, directors, agents, and/or employees, based on any matter,
including those, relating to Employee's employment at the Companies
and/or cessation thereof arising through the date Employee signs this
Agreement. Employee further agrees that Employee will not permit an
action to be filed on Employee's behalf seeking monetary relief against
the Companies, and will not permit Employee to be a member of any class
or group seeking monetary relief against the Companies in any matter
relating to Employee's employment or cessation thereof. Employee states
that he has not previously filed or joined in any complaints or charges
or lawsuits against the Companies pending before any governmental
agency or court of law relating to his employment and/or cessation
thereof.
(f) The Companies agree not to xxx the Employee for actions
taken as an employee, officer or director of the Companies prior to the
Effective Date, provided however, this covenant not to xxx the Employee
shall not be applicable to the Companies with respect to any matters
whereby the Employee is alleged to have violated any law or regulation
as determined in good faith by the Board of Directors of any of the
Companies after consultation with counsel, or as directed by any
applicable governmental agency, including, but not limited to the
Office of Thrift Supervision or the Federal Deposit Insurance
Corporation. Further, the Companies reserve the right to xxx the
Employee in order to enforce this Agreement and the provisions herein
and to file any counterclaims in response to any litigation filed by
the Employee against the Companies.
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5. Return of Property.
------------------
All documents, records, data, apparatus, equipment, and other
physical property, whether or not pertaining to Confidential
Information, which have been furnished to the Employee by the Company
or the Bank or which were produced by Employee in connection with
Employee's employment with the Company or the Bank will be and remain
the sole property of the Company and the Bank. Employee warrants that
all such materials and property have been returned to the Company or
the Bank and that Employee has not retained any such material or
property or any copies thereof.
6. Cooperation.
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At all times before and after the Termination Date, Employee
shall reasonably cooperate with the Company and the Bank in the defense
or prosecution of any claims or actions now in existence or which may
be brought in the future against or on behalf of the Company or the
Bank which relate to events or occurrences that transpired while
Employee was employed by the Company or the Bank. Employee's
cooperation in connection with such claims or actions shall include,
but not be limited to, being available to meet with counsel to prepare
for discovery or trial and to act as a witness on behalf of the Company
or the Bank at mutually convenient times. During and after Employee's
employment, Employee also shall reasonably cooperate with the Company
or the Bank in connection with any investigation or review of any
federal, state, or local regulatory authority as any such investigation
or review relates to events or occurrences that transpired while
Employee was employed by the Company or the Bank. The Company shall, at
the request of Employee, reimburse any reasonable out-of-pocket
expenses that Employee would be required to incur in connection with
Employee's performance of Employee's obligations pursuant to this
Section 6.
7. Notices
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Any notice required or permitted to be given hereunder shall be in
writing and shall be effective three business days after it is properly
sent by registered or certified mail, if to the Companies to the
Chairman of the Board at the administrative offices of the Company, or
if to Employee to the address set forth beneath his signature to this
Agreement, or to such other address as either party may from time to
time designate by notice.
8. Assignability
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This Agreement may not be assigned by any party without the
prior written consent of the other parties, except that no consent is
necessary for the Companies to assign this Agreement to a corporation
succeeding to substantially all the assets or business of the Companies
whether by merger, consolidation, acquisition or otherwise. This
Agreement
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shall be binding upon Employee, his heirs and permitted assigns and
the Companies, its successors and permitted assigns.
9. Severability
------------
Each of the sections contained in this Agreement shall be
enforceable independently of every other section in this Agreement, and
the invalidity or non-enforceability of any section shall not
invalidate or render non-enforceable any other section contained
herein. If any section or provision in a section is found invalid or
unenforceable, it is the intent of the parties that a court of
competent jurisdiction shall reform the section or provisions to
produce its nearest enforceable economic equivalent.
10. Arbitration
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Except as provided at Section 2(f) herein, any controversy or
claim arising out of or relating to this Agreement or the breach
thereof shall be settled by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association,
with such arbitration hearing to be held at the offices of the American
Arbitration Association ("AAA") nearest to Pittsburgh, Pennsylvania,
and judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. Either the Employee
or the Company may file a request for such arbitration with the AAA.
11. Applicable Law
--------------
It is the intention of the parties hereto that all questions
and interpretations with respect to the construction and performance of
this Agreement and the rights and liabilities of the parties hereto
shall be determined in accordance with the laws of the Commonwealth of
Pennsylvania, with respect to any matter or thing arising out of this
Agreement or pursuant thereto.
12. Integration.
-----------
Employee further acknowledges and agrees that any prior
representations, promises, or agreements between the parties relating
to the subject matter of this Agreement are hereby extinguished; that
there are no oral or written representations, promises, or agreements
between the parties other than those set forth herein, and that this
constitutes the entire and only Agreement on the subject matters
covered herein.
13. The Complete Agreement
----------------------
This Agreement, and any attachments or exhibits appended
hereto, shall represent the complete Agreement between the Companies
and Employee concerning the subject matter hereof and supersedes all
prior agreements or understandings, written or oral. No attempted
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modification or waiver of any of the provisions hereof shall be binding
on either party unless made in writing and signed by both Employee and
the Companies.
14. Acknowledgement.
---------------
By signing below, in addition to the provisions of the General
Release and the covenant not to xxx the Companies as contained herein
at Section 4, Employee acknowledges that:
a. Employee has been advised to consult with an attorney prior
to signing this Agreement and has had the advice of counsel
of his choosing;
b. Employee was given at least 21 days from the date of first
receipt of this Agreement on April 23, 2004, to consider the
actual terms of this Agreement;
c. Employee understands that Employee must deliver this signed
Agreement to the Company, to the attention of Xxxxx Xxxxxx,
Chairman, Reserve Bancorp, Inc., 0000 Xx. Xxxx Xxxx,
Xxxxxxxxxx, XX 00000-0000, such that he receives it no later
than 21 days after Employee receives this Agreement.
d. Employee understands that Employee may revoke the General
Release within seven (7) calendar days from the date of
signing this Agreement, in which case this Agreement shall
be null and void and of no force and effect on the Companies
or Employee.
e. Employee understands that this Agreement shall not become
effective or enforceable until the 7-day revocation period
has expired . Employee further understands and acknowledges
that, to be effective, the revocation must be in writing,
delivered to Mr. Xxxxx Xxxxxx at the same address noted
above, on or before the seventh (7th) calendar day by 5:00
PM after Employee signs this Agreement.
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PLEASE READ CAREFULLY THIS RETIREMENT AGREEMENT AND GENERAL RELEASE IN
FULL. IT CONTAINS A COVENANT NOT TO XXX AND A GENERAL RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS ARISING OUT OF YOUR EMPLOYMENT, INCLUDING, BUT
NOT LIMITED TO, THE RELEASE OF ALL CLAIMS UNDER TITLE VII OF THE 1964
CIVIL RIGHTS ACT, THE AMERICANS WITH DISABILITIES ACT, THE AGE
DISCRIMINATION IN EMPLOYMENT ACT AS AMENDED BY THE OLDER WORKERS'
BENEFIT PROTECTION ACT, AND/OR ANY OTHER FEDERAL OR STATE FAIR
EMPLOYMENT OR ANTI-DISCRIMINATION STATUTES OR REGULATIONS.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
RESERVE BANCORP, INC. ("Company")
RESERVE BANK ("Bank")
By: /s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx
Chairman
I have read this Agreement, and I am fully aware of the legal effects
of the Agreement. I have chosen to execute the Agreement freely,
without reliance upon any promises or representations made by the
Company or the Bank other than those contained in this Agreement, and I
understand that, under the terms of the Agreement, I will receive
compensation payments as described in the Agreement, less applicable
tax withholdings, beginning on the next feasible regular biweekly
payroll date after the eighth (8th) day following my execution of this
Agreement, provided I do not revoke this Agreement within the 7-day
revocation period described herein.
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx, Employee
Address:
0000 Xxxxxxxxx Xxxx
Xxx Xxxxxxxxxx, XX 00000
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