SEPARATION AGREEMENT AND GENERAL RELEASE
SEPARATION
AGREEMENT AND GENERAL RELEASE
This
Separation Agreement and General Release (hereinafter “Separation Agreement”) is
entered into by and between Xxxxxx F. X. Xxxxx (hereinafter “XX. XXXXX”), and
United Bank (hereinafter “UNITED”). In this Separation Agreement, UNITED shall
at all times include any and all related entities, corporations, partnerships
and subsidiaries, as well as their respective current and former directors,
officers, trustees, partners, employees, successors in interest, representatives
and agents, both in their representative and individual capacities.
WHEREAS,
UNITED and XX. XXXXX have determined that it is not in their best interests
for
XX. XXXXX to continue as an employee of UNITED; and
WHEREAS,
the parties desire that their relationship end in a professional
manner;
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, it is agreed by the parties as follows:
FIRST:
SEPARATION DATE
XX.
XXXXX‘s last day of employment ended on May 5, 2006 (the “Separation
Date”). The Separation Date will be considered the final date of employment for
XX. XXXXX for purposes of this Agreement.
SECOND:
ONE YEAR’S SALARY CONTINUATION AND 2005 BONUS
In
exchange for XX. XXXXX’x execution of this Separation Agreement and Release,
UNITED agrees to pay in a lump sum XX. XXXXX’x base salary of One Hundred Sixty
Eight Thousand Nine Hundred Dollars and 00/100 ($168,900.00), less appropriate
taxes and deductions (hereinafter referred to as the “Severance Pay”) within 14
days after he executes this Agreement, provided, however, that under no
circumstances will XX. XXXXX execute this Agreement prior to his final date
of
employment. .
In
addition, UNITED will pay XX. XXXXX his 2005 bonus regardless of the date of
the
termination of his employment in the same manner that said bonus would have
been
paid had he remained employed with UNITED.
Further,
UNITED agrees not to contest any application XX. XXXXX may make for unemployment
compensation and it expressly agrees that this Agreement does not require XX.
XXXXX to release any claims for unemployment benefits arising from his
separation from employment with UNITED.
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SEPARATION
AGREEMENT BETWEEN XXXXXX XXXXX AND UNITED
BANK
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This
Salary Continuation and other consideration is being offered to Xx. Xxxxx solely
in exchange for his promise to be bound by the terms of this Agreement and
is
above and beyond what he would otherwise be entitled to receive.
THIRD:
HEALTH AND DENTALINSURANCE BENEFITS
UNITED
agrees to continue XX. XXXXX’x health and dental insurance on the same basis as
if he remained employed with UNITED for one year following XX. XXXXX’X
separation from UNITED (the “Severance Period”). XX. XXXXX’X portion of said
health and dental insurance premiums for the one year period shall be deducted
from the lump sum Severance Payment referenced in Paragraph Second. Any and
all
applicable COBRA notification documents will be sent at the end of the Severance
Period.
These
Benefits are being offered to Xx. Xxxxx solely in exchange for his promise
to be
bound by the terms of this Agreement and is above and beyond what he would
otherwise be entitled to receive.
FOURTH:
TRANSFER OF COMPANY AUTOMOBILE
UNITED
will transfer ownership of the automobile it owns and which was most recently
assigned to XX. XXXXX for use during his employment with UNITED to XX. XXXXX
for
$1.00 after the Effective Date of this Agreement.
The
Transfer of Company Automobile is being offered to Xx. Xxxxx solely in exchange
for his promise to be bound by the terms of this Agreement and is above and
beyond what he would otherwise be entitled to receive.
FIFTH:
MUTUAL RELEASE
In
exchange for the severance payment to which XX. XXXXX would not otherwise be
entitled, XX. XXXXX, on behalf of himself, his heirs and assigns, irrevocably
and unconditionally releases UNITED from all claims, controversies, liabilities,
demands, causes of action, debts, obligations, promises, acts, agreements,
rights of contribution and/or indemnification, and damages of whatever kind
or
nature, whether known or unknown, suspected or unsuspected, foreseen or
unforeseen, liquidated or contingent, actual or potential, jointly and
individually, that he has had or now has, based on any and all aspects of XX.
XXXXX’x employment with UNITED or his separation from that employment,
including, but not limited to, any and all claims for breach of express or
implied contract or covenant of good faith and fair dealing (whether written
or
oral), all
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SEPARATION
AGREEMENT BETWEEN XXXXXX XXXXX AND UNITED
BANK
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claims
for retaliation or violation of public policy, breach of promise, detrimental
reliance or tort (e.g., intentional infliction of emotional distress,
defamation, assault, battery, false imprisonment, wrongful termination,
interference with contractual or advantageous relationship, etc.), whether
based
on common law or otherwise; all claims arising under the Massachusetts Fair
Employment Practices Law; the Title VII of the Civil Rights Act of 1964, as
amended; the Age Discrimination in Employment Act; the Americans with
Disabilities Act; claims for emotional distress, mental anguish, personal
injury, loss of consortium; any and all claims that may be asserted on XX.
XXXXX’x behalf by others; the Employee Retirement Income Security Act of 1974
(“ERISA”); or any other federal, state or local laws or regulations relating to
employment or benefits associated with employment. The foregoing list is meant
to be illustrative rather than inclusive.
Notwithstanding
the above, it is understood that XX. XXXXX does not waive any rights he may
have
to vested benefits under any retirement or employee welfare plan that may be
due
him upon his separation from the company. It is further understood that XX.
XXXXX does not waive any rights he may have as a stockholder of UNITED.
Additionally,
UNITED agrees to amend the Supplemental Executive Retirement Plan entered into
with XX. XXXXX specifically to permit him to receive the early retirement
benefits under said Plain in accordance with the Plain’s payment terms
regardless of the fact that his Separation Date has occurred prior to him
becoming sixty-two (62) years old.
XX.
XXXXX ACKNOWLEDGES AND AGREES THAT THIS RELEASE IS A FULL AND FINAL BAR TO
ANY
AND ALL CLAIM(S) OF ANY TYPE THAT HE MAY NOW HAVE AGAINST UNITED BUT THAT IT
DOES NOT RELEASE ANY CLAIMS THAT MAY ARISE AFTER THE DATE OF THIS
AGREEMENT.
Similarly,
UNITED, its past, present or future parent, affiliated, related and/or
subsidiary entities and their predecessors and successors and assigns, and
the
past, present, or future directors, shareholders, officers, employees, agents,
attorneys and representatives of such entities, do hereby forever release and
discharge XX. XXXXX, his heirs, beneficiaries, devisees, executors,
administrators, attorneys, personal representatives, and assigns from any and
all claims, debts, demands, accounts, judgments, rights, causes of action,
damages, costs, charges, complaints, obligations, promises, agreements,
controversies, suits, expenses, compensation, responsibility and liability
of
every kind and character whatsoever (including attorneys’ fees and costs)
(hereinafter collectively referred to as “claims”), whether in law or in equity
and whether or not known, asserted, or suspected which UNITED has against XX.
XXXXX from the beginning of time up to and including the date of the execution
of this Agreement.
/s/
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SEPARATION
AGREEMENT BETWEEN XXXXXX XXXXX AND UNITED
BANK
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SIXTH:
NO LAWSUITS OR CLAIMS
XX.
XXXXX
waives the rights and claims set forth above, and he also agrees not to
institute, or have instituted, a lawsuit against UNITED based on any such claims
or rights.
XX.
XXXXX
specifically acknowledges that this waiver and release releases UNITED from
liability for any alleged discrimination that could be the subject matter of
any
charge he may subsequently file with the Equal Employment Opportunity Commission
or any other agency. XX. XXXXX further acknowledges and agrees that, with
respect to the rights and claims he is waiving, he is waiving not only his
right
to recover in any action he might commence, but also his right to recover in
any
action brought on his behalf by any other party, including, but not limited
to,
the U.S. Equal Employment Opportunity Commission, or any other federal, state
or
local governmental agency or department.
SEVENTH:
ADEQUATE CONSIDERATION
XX.
XXXXX
agrees that the Severance Pay, Benefits and Automobile set forth herein
constitute adequate and ample consideration for the rights and claims he is
waiving under this Separation Agreement.
XX.
XXXXX
further agrees that the Severance Pay described in Paragraph 2 shall be in
lieu
of any other compensation or benefits to which XX. XXXXX may be entitled or
may
claim to be entitled except as specified herein.
EIGHTH:
NON-DISPARAGEMENT COVENANT
XX.
XXXXX
and UNITED agree that they will engage in no conduct which is either intended
to
or could reasonably be expected to harm each other in the operation of their
business. Both parties agree they will not take any action, legal or otherwise,
which might embarrass, harass, or adversely affect each other or which might
in
any way work to the detriment of each other, whether directly or indirectly.
In
particular and by way of illustration not limitation, each party agrees that
it
will not directly or indirectly contact customers or any entity that has a
business relationship with the other, in order to disparage the good morale
or
business reputation or business practices of UNITED or any of its current and
former officers, directors, managers or employees or XX. XXXXX.
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SEPARATION
AGREEMENT BETWEEN XXXXXX XXXXX AND UNITED
BANK
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NINTH:
CONFIDENTIALITY
XX.
XXXXX
understands and agrees that this Separation Agreement is a confidential
document, as are all of the terms and conditions expressed herein. Accordingly,
XX. XXXXX agrees that he will not disclose or discuss this Separation Agreement,
or the circumstances related thereto, with any other person except for his
spouse, attorney and/or accountant, pursuant to a court order, or if otherwise
required by securities and exchange laws or other laws. In the event XX. XXXXX
discusses this Separation Agreement with his spouse, attorney, and/or accountant
or pursuant to a court order, it shall be XX. XXXXX’x duty, responsibility and
obligation to advise those persons of the confidential nature of this Separation
Agreement and to direct them not to discuss the terms and conditions of this
Separation Agreement with any other person.
XX.
XXXXX
shall be fully and completely responsible for any breach of this confidentiality
provision, whether it be his breach or a breach by his spouse, attorney, and/or
accountant.
TENTH:
CONSEQUENCES OF BREACH; PROCEDURES
In
the
event that either party institutes legal proceedings to enforce the terms of
this Separation Agreement, it is specifically understood and agreed that such
a
claim shall be submitted to final and binding arbitration pursuant to the rules
of the American Arbitration Association, and that except for any claims under
the Age Discrimination in Employment Act, the prevailing party shall recover
its
costs and reasonable attorney’s fees incurred in such arbitration
proceeding.
ELEVENTH:
NON-ADMISSION OF LIABILITY
Each
party acknowledges that the other is entering into this Separation Agreement
voluntarily to end their relationship in a professional manner, and that in
making this Separation Agreement, neither party admits that it has done anything
wrong to the other.
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SEPARATION
AGREEMENT BETWEEN XXXXXX XXXXX AND UNITED
BANK
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TWELVETH:
MISCELLANEOUS
If
any
provision of this Separation Agreement, or any part of any provision of this
Separation Agreement, is found to be invalid by a court of competent
jurisdiction, such shall not affect the validity of any other provision, or
part
thereof, of this Separation Agreement. UNITED and XX. XXXXX agree that this
Separation Agreement constitutes their entire final understanding and agreement
with respect to the subject matter hereof and supersedes all prior or
contemporaneous negotiations, promises, covenants, agreements, or
representations concerning all matters directly, indirectly, or collaterally
related to the subject matter of this Separation Agreement. XX. XXXXX and UNITED
agree that this Separation Agreement cannot be amended or modified except by
a
writing executed by both of the parties hereto or their respective
administrators, trustees, personal representatives, and successors. The parties
further agree that this Separation Agreement is governed by the laws of the
State of Massachusetts.
THIRTEENTH:
ACKNOWLEDGEMENT
XX.
XXXXX
ACKNOWLEDGES THAT HE HAS CAREFULLY READ AND UNDERSTANDS THIS SEPARATION
AGREEMENT AND AGREES THAT UNITED HAS NOT MADE ANY REPRESENTATIONS OTHER THAN
THOSE CONTAINED HEREIN. XX. XXXXX ALSO ACKOWLEDGES THAT HE HAS BEEN ADVISED
TO
CONSULT WITH AN ATTORNEY OF HIS OWN CHOSING REGARDING THE TERMS OF THIS
AGREEMENT; THAT HE HAS BEEN GIVEN TWENTY-ONE (21) DAYS TO CONSIDER THE TERMS
OF
THIS AGREEMENT, AND THAT IF SIGNS THIS AGREEMENT BEFORE THE TWENTY-ONE DAY
PERIOD, HE DOES SO KNOWINGLY AND VOLUNTARILY. XX. XXXXX ALSO ACKNOWLEDGES THAT
HE ENTERS INTO THIS SEPARATION AGREEMENT VOLUNTARILY, WITH FULL KNOWLEDGE OF
ITS
SIGNIFICANCE, AND WITHOUT PRESSURE OR COERCION. XX. XXXXX FURTHER ACKNOWLEDGES
THAT HE HAS HAD SUFFICIENT TIME TO CONSIDER THIS AGREEMENT AND CONSULT WITH
AN
ATTORNEY OF HIS CHOOSING PRIOR TO EXECUTING THIS AGREEMENT.
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DXFL
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SEPARATION
AGREEMENT BETWEEN XXXXXX XXXXX AND UNITED
BANK
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XX.
XXXXX
ALSO ACKNOWLEDGES THAT HE MAY REVOKE THE AGREEMENT WITHIN SEVEN DAYS FOLLOWING
HIS SIGNATURE ON THIS AGREEMENT BY SENDING VIA CERTIFIED MAIL, RETURN RECEIPT
REQUESTED WRITTEN NOTIFICATION OF SUCH REVOCATION TO XXXXXXX X. XXXXXXX,
PRESIDENT, UNITED. THIS AGREEMENT BECOMES EFFECTIVE ON THE EIGHTH DAY AFTER
XX.
XXXXX SIGNS THE AGREEMENT (THE “EFFECTIVE DATE”). SAID REVOCATION IS NOT
EFFECTIVE UNLESS IT IS RECEIVED
BY XX.
XXXXXXX DURING THE 7-DAY PERIOD.
IN
WITNESS WHEREOF, UNITED and XX. XXXXX have executed this Separation Agreement
and General Release.
THIS
AGREEMENT IS NOT EFFECTIVE UNLESS SIGNED AND DATED AFTER XX.
XXXXX’X
FINAL DAY OF EMPLOYMENT WITH UNITED.
UNITED
BANK
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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/s/
Xxxxxx F. X. Xxxxx
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Xxxxxxx
X. Xxxxxxx, It’s President
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Xxxxxx
F. X. Xxxxx
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Dated:
May 5, 2006
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Dated:
May 5, 2006
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Witness:
/s/ Xxxxx X. Xxxxxx
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Witness:
/s/ Xxxxx X. Xxxxxx
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/s/
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DXFL
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