EXHIBIT 10.1
AGREEMENT AND MUTUAL RELEASE
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This Agreement and Mutual Release ("Agreement") is executed as of this 29th
day of August, 2003 by, between and among NORTHSIDE BANK, NSD BANCORP, INC.
("Employer") and XXXXX X. XXXXXX ("Employee").
Preamble
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The Employee is employed by Employer as its President and Chief Executive
Officer. The Employee desires to resign from such employment, and Employer
desires to accept that resignation. The Employee and the Employer desire to set
forth the terms and conditions of Employee's resignation and to reach a mutually
satisfactory compromise of any and all claims that could be made or might arise
out of and relate to Employee's employment with Employer and Employee's
resignation from such employment. Employee may revoke this Agreement any time
within seven (7) days after the date of execution. Employee must give written
notice of revocation to Xxxxxxxx X. Xxxx, Chairman, NorthSide Bank and NSD
Bancorp Inc., 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, 00000-0000. Notice
is not deemed to be given until received by NorthSide Bank and NSD Bancorp, Inc.
NOW THEREFORE, in consideration of the mutual covenants set forth herein,
and intending to be legally bound, the parties hereby agree as follows:
Agreement
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1. Termination of Employment. Effective as of the close of business on
August 28, 2003, Employee will resign from his employment. Employer will accept
such resignation. Employee will vacate his offices by midnight on September 2,
2003. Employer will provide Employee with access to all offices and buildings
necessary for Employee to gather his personal belongings in a professional
manner. Employer may designate individuals to supervise the gathering of
Employee's personal belongings and his departure from his offices.
2. Payments to Employee. Employer agrees to pay to Employee, as severance
pay, an amount equal to eighteen (18) months of his Annual Base Salary as
defined by the Employment Agreement between Employer and Employee dated July 1,
1993, minus applicable taxes, deductions and withholdings. Said sum represents
severance pay and shall be paid in substantially equal installments on regular
bank paydays beginning on the first regularly scheduled pay date following the
expiration of the seven (7) day revocation period provided for in Paragraph 10
of this Agreement. Employer has the right to pay Employee the severance payment
in a lump sum amount after giving effect to a 1.5% discounted rate. Employer
also agrees to pay Employee a lump sum amount that is equal to twelve (12)
monthly installments of the car lease payments in accordance with the terms of
the program between Employer and Employee
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immediately preceding any execution of this Agreement, said lump sum is due
within thirty (30) days of the execution of this Agreement. In addition,
Employer agrees to pay COBRA premiums for eighteen (18) months following the
execution of this Agreement or until Employee secures health care coverage
through other employment, whichever period is less.
Payment of the severance pay, either in monthly installments or in a lump
sum, and payment of the lump sum in connection with the company car lease will
be made without regard to whether Employee obtains other employment.
Employee acknowledges and agrees that the benefits to be provided to him by
Employer pursuant to this paragraph are, in significant and substantial part, in
addition to those benefits to which he is already or would otherwise be
entitled.
Employer will keep in full force and effect all insurance policies on the
life of Employee so long as permitted by law, or applicable rule or regulation
and to the extent that no unreasonable administrative costs are associated with
such maintenance. Unless required by law, rule or applicable regulation, if
Employer desires to terminate or alter the beneficiary on any existing insurance
policies, it will provide written notification to employee.
Employer agrees that existing stock options granted by the Employer to the
Employee will be honored in accordance with their terms.
3. Non-Disparagement, Communications and Confidentiality.
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(a) Disparagement. Employee agrees that he will not in any way disparage or
make negative comments regarding Employer or its directors, officers, employees,
agents, attorneys, or consultants to any person. Employer, its directors,
officers, employees, agents, attorneys, and consultants agree that they will not
in any way disparage or make negative comments regarding Employee, except
Employee or Employer acknowledge and agree that Employee may have to provide and
Employer will have to provide information to the appropriate bank regulatory
agencies regarding the Employee's activities during his employment.
(b) Communications. If requested, Employer will provide recommendations for
Employee in the form of Exhibit A to this Agreement. Counsel for the parties
will work together in good faith to arrive at acceptable language to be included
in Exhibit A in the event that Exhibit A is not completed at the time of
signature by the parties.
(c) Litigation. Employee shall cooperate fully to the extent reasonably
requested by Employer in connection with any litigation or other proceedings.
Such cooperation shall include the retention and (upon Employer's request) the
provision of records and information which are reasonably relevant to any such
litigation or other
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proceeding and the Employee being available on a mutually convenient basis to
provide additional information and explanation of any records or information
provided hereunder.
(d) Confidentiality. Except as required by law, rule or regulation
applicable to Employer, the request of a bank regulator, or pursuant to
Employer's obligations as a public company, the terms, conditions, amount, and
fact of this Agreement, (other than the fact of Employee's prior employment and
his separation date), the reasons therefore, and all negotiations with respect
thereto shall at all times remain confidential. Neither Employee nor Employer
will make, facilitate, or authorize any disclosure concerning this Agreement, or
the reasons therefore, except for (i) disclosures to Employee's immediate
family, (ii) disclosures to legal counsel and/or accountants for the respective
parties, or (iii) as may be required by applicable laws, regulations, or
judicial, governmental, or similar order or decree.
4. No Admission of Liability. This Agreement will not constitute nor be
deemed or construed to be (a) an admission by Employer of discrimination of any
kind or nature whatsoever against Employee or (b) an admission by either party
of any breach of any alleged obligation or any kind or nature whatsoever,
express or implied.
5. Releases.
(a) FOR AND IN CONSIDERATION of the agreements and commitments set forth in
this Agreement, NorthSide Bank does hereby knowingly and voluntarily release and
forever discharge Employee 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 NorthSide Bank ever had, now or may or might in the
future have against Employee, based on any acts, omissions, transactions or
occurrences occurring prior to or on the date of execution of this Agreement;
provided, however, that nothing in this Agreement shall be deemed to be a waiver
by NorthSide Bank of any claims which are based on or arise out of a customer
relationship between Employee and NorthSide Bank, including but not limited to
lending relationships between NorthSide Bank and Employee; or Employee's
intentional or fraudulent acts or conducts; or to the extent that a waiver would
be prohibited under federal or state law, including without limitation,
regulations restricting indemnification, with respect to any threatened, pending
or completed legal or regulatory action, suit or proceeding.
(b) FOR AND IN CONSIDERATION of the Agreements and commitments set forth in
Paragraph (a) above (and with the specific exceptions referred to in Paragraph
(c) below relating to profit sharing or other retirement benefits and benefits
under COBRA), Employee does hereby knowingly and voluntarily release and forever
discharge, both jointly and severally, NorthSide Bank, NSD Bancorp, Inc. and all
of their subsidiaries, divisions, affiliates, whether or not the existence of
such entities is now known to the undersigned, and their officers, directors,
employees, shareholders, servants, agents and attorneys, in their official and
individual capacities, together with their predecessors, successors and/or
assigns (hereinafter collectively referred to as
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"NSD") from any and all actions, causes of action, suits, debts, dues, sums of
money, accounts, damages, judgments, claims and/or demands whatsoever, in law or
in equity, (hereinafter collectively referred to as "claims"), whether known or
unknown to Employee, which Employee ever had or now has against NSD based on any
acts, omissions, transactions or occurrences whatsoever occurring prior to or on
the date of execution of this Agreement, and from those claims which are in any
way connected with, or which are or may be based in whole or in part on (i) the
employment relationship that existed between Employee and NSD (including without
limitation, any and all claims, suits, demands, damages, sums of money,
obligations, liabilities, actions related to the Change of Control Agreement
between Employee and NSD dated December 9, 2002), and subsequent termination
thereof; (ii) those claims arising under any state fair employment practices act
and/or any law, ordinance or regulation promulgated by any country, municipality
or other state subdivision; (iii) those claims for breach of duty and/or implied
covenant of good faith and fair dealing; (iv) those claims for interference with
and/or breach of contract (express or implied, in fact or in law, oral or
written); (v) those claims for retaliatory or wrongful discharge of any kind;
(v) those claims for intentional or negligent infliction of emotional distress
or mental anguish; (vii) those claims for outrageous conduct; (viii) those
claims for interference with business relationships, contractual relationships
or employment relationships of any kind; (ix) those claims for breach of duty,
fraud, fraudulent inducement to contract, breach of right of privacy, libel,
slander, or tortuous conduct of any kind; (x) those claims arising under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. ss.2000e, et seq.; (xi) those
claims arising under the Age Discrimination in Employment Act, 29 U.S.C. ss.621
et seq.; (xii) those claims arising under the National Labor Relations Act, 29
U.S.C. ss.151 et seq.; (xiii) those claims arising under the Americans with
Disabilities Act, 42 U.S.C. ss.12101 et seq.; (xiv) those claims arising under
the Civil Rights Act of 1866 or 1871, 42 U.S.C. ss.1981 et seq.; (xv) those
claims arising under the Family Medical Leave Act of 1993, 29 U.S.C. ss.151 et
seq.; (xvi) those claims arising under any state or federal handicap or
disability discrimination law or act; (xvii) those claims arising from any
damages suffered at any time after the date of this Agreement by reason of the
effects or continued effects of any alleged or actual discriminatory or wrongful
acts which occurred on or before the date of the execution of this Agreement;
(xviii) those claims arising under or in reliance upon any statute, regulation,
rule or ordinance (local, state or federal); (xix) any and all other claims
arising under the law or in equity; and (xx) any and all other claims asserted
or which could have been asserted by the undersigned in any other charges or
claims of alleged violation of any applicable law, rule, ordinance or
regulation.
(c) Without limiting the generality of the preceding paragraphs, Employee
acknowledges and agrees that, in consideration for the agreements and
commitments set forth in Paragraph (a) above, Employee has knowingly and
voluntarily relinquished, waived and forever released any and all remedies which
might otherwise be available to him including, without limitation, claims for
contract or tort damages, punitive or exemplary damages, special damages,
compensatory damages, consequential damages, lost benefits of any kind
including, without limitation, life insurance, severance pay, medical benefits
or sick pay, except that identified in Section 2 of this Agreement, recovery of
attorneys' fees, costs, expenses of any kind, reinstatement to a position of
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employment or reemployment with NSD. It is understood and agreed that the waiver
of benefits contained in the preceding sentence does not include the waiver of
any vested, nonforfeitable pension, profit sharing or other retirement benefits
to which Employee is entitled through an existing or prior retirement or profit
sharing program, nor does that waiver include benefits to which Employee is
entitled under COBRA. Employee further covenants not to xxx NSD or to
participate in any way in any suit or to execute, seek to impose, collect or
recover upon or otherwise enforce or accept any judgment, decision, award,
warranty or attainment upon any claim released herein.
6. Unemployment Compensation. Employer agrees that it will not contest
Employee's eligibility for unemployment compensation benefits.
7. Arbitration. Any controversy, claim or dispute between the parties
concerning this Agreement or the breach thereof shall be finally settled by
arbitration in Allegheny County, Pennsylvania pursuant to the rules of the
American Arbitration Association regarding employment disputes. In such
instances, it is agreed that the dispute shall be submitted to final and binding
arbitration by one arbitrator; provided, however, that either party may request
that there be three arbitrators, in which case each party shall select one
arbitrator, and the two arbitrators so selected shall select a third. All costs
of arbitration (other than the costs of a party's own witnesses and professional
advisors) shall be paid by the nonprevailing party.
8. Equitable Relief. The parties acknowledge and agree that each would be
irreparably damaged in the event that any of the provisions of this Agreement
are not performed by the other in accordance with their specific terms or are
otherwise breached. Accordingly, it is agreed that the nonbreaching party shall
be entitled to an injunction or injunctions to prevent breaches of this
Agreement by the other party and shall have the right to specifically enforce
this Agreement and the terms and provisions hereof against the breaching party
in addition to any other remedy to which the non-breaching party may be entitled
at law or in equity.
9. Notice of Intent to Xxx. Ten (10) days before any party hereto
institutes any action to enforce the rights set forth in this Agreement, written
notice of the intention to xxx or proceed to arbitration shall be given by
certified mail by said party to the other party. During the above-mentioned ten
(10) day period, the parties hereto will make a reasonable effort to amicably
resolve any disagreement that has arisen between them.
10. Employee acknowledges and agrees that he has carefully reviewed,
studied, and thought over the terms of this Agreement and that all questions
concerning this Agreement have been answered to his satisfaction. Employee
acknowledges and agrees that he is hereby advised and encouraged to consult with
his private attorney prior to executing this Agreement. Employee further
acknowledges and agrees that prior to execution of this Agreement, he was
encouraged and afforded the opportunity to review it with anyone else he desired
to consult, including his accountant or tax advisor, and that, to the extent
desired, he has availed himself of that opportunity. Employee does further
acknowledge and agree that he was given a reasonable account of time in which to
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consider this Agreement, that he has had this Agreement in his possession, and
that he has had the opportunity to consider and reflect upon the terms of this
Agreement before signing or executing it. The undersigned does further
acknowledge and agree that he knowingly and voluntarily entered into and
executed this Agreement after deliberate consideration and that he was not
coerced, pressured or forced in any way by NSD or anyone else to accept the
terms of this Agreement, and that the decision to accept the terms of this
Agreement was entirely his own after full consultation with his attorney.
Employee also acknowledges and agrees that he fully understands that he will be
giving up certain legal rights by entering into this Agreement and that he will
have no right to reinstatement or reemployment with NSD following his execution
of this Agreement based upon any claim(s) released herein. Employee also
acknowledges that no promise or inducement to enter into and execute this
Agreement has been offered or made except as stated in this Agreement. Employee
also acknowledges that he understands that he has seven (7) days to revoke this
Agreement following its execution by mailing written notice of revocation within
that seven (7) day period to:
Xxxxxxxx X. Xxxx, Chairman
NorthSide Bank/NSD Bancorp, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
By placing his initials at the end of this paragraph, Employee acknowledges
that he has been informed of his rights and that he specifically waives any
claim(s) that he may have arising as result of any act or omission alleged to
have occurred prior to the date of this Agreement, and that he has had an
opportunity to seek consultation with his attorney regarding his rights, that he
has been given a reasonable amount of time by NSD to review this Agreement, and
that he may revoke the waiver, once given, at any time during the seven (7) day
period following the signing of the waiver.
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LGG
11. Employee acknowledges and agrees that, should he fail or refuse to
execute this Agreement, or should he revoke this Agreement as provided in
Paragraph 10 above, all obligations of NSD, including the obligation to provide
payments to Employee as stated in this Agreement, shall be entirely void and of
no effect.
12. Employee acknowledges and agrees that in the event he decides, in spite
of this Agreement, to pursue any claims against NSD, in any manner, the
agreements and commitments set forth in Paragraph 2 of this Agreement shall
become null and void. Furthermore, should this occur, any monies paid to
Employee by NSD pursuant to Paragraph 2 of this Agreement shall be owed by
Employee to NSD.
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13. Notwithstanding any other provision of this Agreement, no term or
provision of this Agreement is to be interpreted as waiving or releasing any
prospective claims based upon acts, omissions or events occurring after its
execution.
14. This Agreement shall be binding upon the parties as well as their
heirs, executors, administrators, assigns, successors, either by merger or
acquisition, beneficiaries, employees, agents, and all other persons asserting
claims by or on behalf of the parties.
15. It is understood and agreed that the provisions of this Agreement are
severable, and should any provision or provisions in this Agreement be found
unenforceable, the other provisions shall remain fully valid and enforceable.
16. Employee shall not, without the written consent of NSD, knowingly
disclose to any person, other than an employee of NSD, any material or
confidential information obtained by him while in the employ of NSD or its
predecessors with respect to any of NSD's services, products, improvements,
processes, customers, customer lists, methods of business or any business
practices, the disclosure of which he knows or should know will be materially
damaging to NSD; provided, however, that confidential information shall not
include any information known generally to the public other than as a result of
unauthorized disclosure by Employee.
17. Employee certifies that he has returned to NSD any and all company
materials, equipment, documents, records or other company data or information,
in whatever format it exists, be it electronic, digital, hard copy, or other
format. To the best of NSD's knowledge, Employee has returned all of the
aforementioned materials. If NorthSide Bank determines in the future that
Employee is still in possession of any company property, NSD will notify
Employee and he will return the company property within five days of the
notification.
18. This Agreement constitutes the entire agreement between the undersigned
and NSD and supersedes any and all prior and/or contemporaneous agreements,
representations, or understandings, written or oral. It is expressly understood
and agreed that this Agreement may not be altered, amended, modified or
otherwise changed in any respect whatsoever except in writing duly executed by
the undersigned and an authorized representative of NSD. The pronouns "he,"
"him," and "his" used in this Agreement are intended to refer to the undersigned
regardless of the undersigned's gender. This Agreement is intended to fully,
completely and forever resolve all disputes based upon events, omissions or acts
occurring on or prior to its execution as well as all other issues or claims in
any way arising out of or connected with the prior employment of the undersigned
with NSD and/or its predecessors or the termination of that employment. This
Agreement shall be governed by and interpreted in accordance with the laws of
the Commonwealth of Pennsylvania.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement and Mutual
Release on this 29th day of August, 2003.
WITNESS: EMPLOYEE:
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Xxxxx X. Xxxxxx
ATTEST: NORTHSIDE BANK/
NSD BANCORP INC.
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Xxxxxxxx X. Xxxx, Chairman
NorthSide Bank/NSD Bancorp Inc.
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Exhibit A
Professional Reference
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Xx. Xxxxxx submitted his resignation in order to pursue other business interests
in the financial services industry.
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