Exhibit 10.21
AGREEMENT AND GENERAL RELEASE
THIS AGREEMENT, made and entered into on this 17th day of July, 2003 by
and between Waypoint Financial Corp. and its affiliates and subsidiaries, a
Pennsylvania corporation (the "Company"), with its principal office in
Harrisburg, Pennsylvania, and Xxxxxx X. Xxxxx, a resident of York, Pennsylvania
("Xxxxx").
WITNESSETH:
WHEREAS, the Company has heretofore employed Xxxxx under an Employment
Agreement originally entered into as of October 17, 2000 (the "Employment
Agreement"); and
WHEREAS, said Employment Agreement was for a term of five years, ending
October 16, 2005, the first three years of which Xxxxx was to be employed as
Co-Chairman and subsequently Vice Chairman of the Board of the Company and the
last two years of such Employment Agreement, Xxxxx was to serve as a Consultant;
and
WHEREAS, the Company extended Xxxxx'x employment as Vice Chairman and
employee through October 17, 2005; and
WHEREAS, Xxxxx and Company expressed interest in his retiring from his
status as an employee of Company prior to the expiration of the employment
period under the Employment Agreement as extended; and
WHEREAS, Xxxxx voluntarily retired as Vice Chairman to the Company,
thus terminating his employment effective as of May 22, 2003, and
WHEREAS, a voluntary termination under Xxxxx'x Employment Agreement
would result in no further payments under the Employment Agreement but would
trigger his consulting agreement; and
WHEREAS, as a result of Xxxxx'x experience and knowledge, the Company
is desirous of entering into a consulting arrangement with Xxxxx which will
provide him with consulting service compensation and protection and additional
benefits as provided in paragraph 5 hereof.
WHEREAS, in consideration of these mutual agreements the Company has
agreed to provide consulting compensation to Xxxxx and Xxxxx has agreed to enter
into this Agreement and General Release.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
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1. The Company and Xxxxx hereby agree that Xxxxx'x termination of
employment shall be effective on May 22, 2003 and that the
Employment Agreement shall terminate on that date and be of no
further force and effect. The Company further more agrees that
the termination of Xxxxx'x employment agreement and the
consideration set forth in the recitals above and the releases
and agreements below represent consideration flowing to the
Company.
2. Notwithstanding Xxxxx'x termination of employment and the
termination of the Employment Agreement, in consideration of
the release provided by Xxxxx under Paragraph 5 below, the
Company shall pay or cause to be paid or provided to Xxxxx,
subject to any legally required withholdings and deductions
and any contribution towards medical coverage as is applicable
for covered persons under Company plans all amounts and
benefits required under the Consulting Agreement, attached
hereto as Exhibit "A".
3. Xxxxx agrees and acknowledges that the Company, on a timely
basis, has paid or has agreed to pay, to Xxxxx all other
amounts due and owing based on his prior services as an
employee of the Company and that the Company has no
obligation, contractual or otherwise to Xxxxx, except as
provided herein, excluding correction of any prior clerical
payroll error, and in the Consulting Agreement nor does it
have any obligation to hire, rehire or re-employ Xxxxx in the
future.
4. Xxxxx agrees and acknowledges his obligations under the
Consulting Agreement, effective as of the effective date of
this Agreement, as defined in Paragraph 5(f)(5) hereto,
including but not limited to his obligation to use his best
efforts to provide advisory services to the Company and the
Confidentiality and Non-Compete obligations under the
Consulting Agreement. Nothing herein shall require Xxxxx to
accept or perform assignments which are illegal, unethical or
outside the scope of his abilities and all such services are
to be performed by him at times or on a schedule that is
reasonably acceptable to him.
5. In consideration of the benefits to be provided by Company to
Xxxxx, the receipt of 15,000 stock options, office and
administration support allowances and spousal medical coverage
to age 65 and protection of consulting compensation in the
event of a change in control of the Company, Xxxxx hereby
agrees as follows:
(a) Xxxxx knowingly and voluntarily releases and forever
discharges Company, of and from any and all claims,
known and unknown, which Xxxxx, his heirs, executors,
administrators, successors, and assigns have or may
have against Company that accrued or arose at any
time prior to the execution of this 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
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Protection Act; the Pennsylvania Human Relations Act;
the Pennsylvania Wage Payment and Collection
Law;ss.ss.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
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) Xxxxx 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 Company except where
such waiver is prohibited by law. Should any such
action, charge, or complaint be filed, Xxxxx agrees
that he will not accept any relief or recovery
therefrom. Xxxxx shall reimburse Company for the fees
and costs, including attorneys' fees, of defending
such action, charge, or complaint.
(c) Xxxxx agrees not to disclose any information
regarding the existence or substance of this
Agreement and General Release, except to any attorney
with whom Xxxxx chooses to consult regarding this
Agreement, tax and other professional advisors,
immediate family members, or where such disclosure is
required by law.
(d) Xxxxx agrees that neither this 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 of any liability
or unlawful conduct of any kind.
(e) In the event that Xxxxx breaches or attempts to
breach any provision of this Xxxxxxxxx 0, Xxxxx
agrees that Company 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. Xxxxx further
agrees to reimburse Company for all fees and costs,
including attorneys' fees, incurred as a result
thereof if Company prevails in such action.
(f) By signing this Agreement, Xxxxx represents and
agrees that:
(1) this Agreement is entered into knowingly and
voluntarily;
(2) he is receiving consideration from Company
in addition to anything of value to which he
is already entitled;
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(3) he has been given at least twenty-one (21)
days to consider this Agreement and has
chosen to execute it on the date set forth
above;
(4) he knowingly and voluntarily intends to be
legally bound by this Agreement;
(5) he has been advised to consult with an
attorney; and 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. If not revoked, this Agreement shall
become effective on the eighth (8th) day following execution of this Agreement
("Effective Date").
(g) That nothing herein contained is intended to limit,
revoke or waive any indemnification rights that Xxxxx
may have under the Company's Articles and By Laws as
a Director or former officer of the Company or any
rights thereto under any Directors and Officers
insurance coverage maintained by the Company.
6. Severability. Xxxxx and Company acknowledge that any
restrictions 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.
7. Construction. This Agreement shall be construed in accordance
with the laws of the Commonwealth of Pennsylvania.
8. Captions. The captions used herein are for convenience and
reference 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.
9. Entire Agreement. This Agreement contains the entire
understanding 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 the
Employment Agreement and attachments and Exhibits dated
October 17, 2000 and the extension thereof by the Company.
10. Acknowledgement. Xxxxx hereby acknowledges that he was
presented with this Agreement on June 13, 2003, and that he
was informed that he had the right to consider this Agreement
and the release contained herein for a period of twenty-one
(21) days prior to execution. Xxxxx also understands that he
has the right to revoke this Agreement for a period of seven
(7) days following execution, by giving written notice to the
Company at 000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000,
Attention: Chairman, Compensation and Benefits Committee, in
which event the provisions of this Agreement shall be null and
void, and the parties shall have the rights, duties,
obligations and remedies afforded by applicable law.
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IN WITNESS WHEREOF the parties hereto this 17th day of July,
2003 have executed this Agreement and General Release intending thereby to be
legally bound.
ATTEST WAYPOINT FINANCIAL CORP.
________________________________ by: ________________________________
Secretary Xxxxx X. Xxxxx, President & CEO
-------------------------------- -----------------------------------
Witness Xxxxxx X. Xxxxx
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