EXHIBIT 10.29
AGREEMENT AND GENERAL RELEASE
This Agreement and General Release is made and entered into on this ____
day of ____________, 2000, by and between Xxxxxx Financial, M.H.C., Xxxxxx
Financial, Inc., Xxxxxx Savings Bank, and New Xxxxxx Financial, Inc., its
successors, assigns, subsidiaries, and affiliates (collectively "Xxxxxx") and
Xxxx X. Xxxxxxxx ("Executive").
WHEREAS, Executive is currently employed by Xxxxxx as Executive Vice
President, Chief Operating Officer of Xxxxxx Savings Bank; and
WHEREAS, Executive has indicated his desire to step down as Chief Operating
Officer of Xxxxxx; and
WHEREAS, Xxxxxx would like to retain the services of Executive for a
limited period of time following his resignation as Chief Operating Officer; and
WHEREAS, Executive has agreed to provide consulting services to Xxxxxx for
a limited period following his termination of full time employment with Xxxxxx;
and
WHEREAS, in recognition of the valuable services and contributions provided
by Executive to Xxxxxx, Xxxxxx is willing to provide certain supplemental
retirement benefits to Executive commencing at the end of his consulting period.
NOW THEREFORE, in consideration of the foregoing, the promises and
covenants contained herein and other good and valuable consideration, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Service Period. Executive and Xxxxxx hereby agree that Executive will
---------------
terminate his employment as an employee and as Chief Operating Officer of Xxxxxx
effective on the earlier of (a) March 31, 2001; (b) the effective date of the
merger of York Financial, Inc. into New Xxxxxx Financial, Inc. or (c) within
sixty (60) days of the employment of Executive's successor as Chief Operating
Officer of Xxxxxx (the earlier of (a), (b) or (c) referred to as the
"Consultancy Commencement Date". Provided that Executive has not revoked this
Agreement, once executed by him, within the revocation period set forth in
Paragraph 12(f), Executive's last day of employment with Xxxxxx will be his
Consultancy Commencement Date. Upon Executive's Consultancy Commencement Date,
Xxxxxx will retain the services of Executive as a consultant. Executive shall
make himself reasonably available to the CEO or Chairman of the Board of Xxxxxx
either by telephone or in person during his period of consultancy. Executive
shall be retained by Xxxxxx as a consultant commencing on the Consultancy
Commencement Date and ending on
November 30, 2001. During Executive's period of consultancy, Xxxxxx shall pay
Executive a monthly consulting fee of Two Thousand Dollars ($ 2,000.00).
2. Supplemental Pension Benefits. Commencing on December 1, 2001,
-----------------------------
Executive shall be paid a monthly supplemental pension benefit from Xxxxxx as
described in this Paragraph 2. The monthly supplemental pension benefit shall
be Two Thousand Dollars ($2,000.00) which shall be paid commencing December 1,
2001 and continuing on the first day of each month thereafter for a period which
is 120 months, set period measured from the Executive's Consultancy Commencement
Date.
3. Health Insurance Coverage. Executive and his spouse shall continue to
-------------------------
participate under the group health insurance plan of Xxxxxx up through the end
of Executive's Consultancy period. At the end of his consultancy period, in the
event that Executive elects health care continuation coverage ("COBRA") under
the Xxxxxx group health plan, Xxxxxx agrees to pay a percentage of Executive's
COBRA premium cost for Executive and his spouse in an amount equal to the then
current employer paid percentage paid by Xxxxxx under its group health plan for
active employees.
4. Bonus. Executive will be eligible to receive a bonus for calendar year
-----
2000 based on the level of achievement of his calendar year 2000 Major Business
Objectives ("MBO"). The parties hereby agree that Xxxxxx must meet minimum
thresholds for XXX and EPS, as set forth in the Xxxxxx bonus plan for 2000, and
Executive must meet minimum thresholds for his MBO before he may be eligible to
receive any bonus for calendar year 2000. If Executive's Retirement Date occurs
after December 31, 2000, Executive shall be eligible to participate in Xxxxxx'
year 2001 bonus plan for similarly situated employees. Executive's
participation in Xxxxxx' year 2001 bonus plan shall be determined only on
corporate goals under the plan. Executive's bonus, if any, shall be based on
his base salary in effect as of his Retirement Date. Provided however,
Executive's bonus, if any for year 2001 shall be calculated on a pro rated
method based on the number of full months worked in year 2001.
5. Automobile. As soon as administratively feasible after Executive's
----------
Retirement Date, Xxxxxx shall cause title to the automobile currently provided
to Executive by Xxxxxx to be transferred to Executive.
6. Life Insurance. Xxxxxx confirms to Executive that Executive has the
--------------
option to convert existing life insurance coverages maintained by Xxxxxx for
Executive for a period of thirty-one (31) days following Executive's
-2-
Retirement Date. To the extent Executive does not elect to convert said life
insurance coverages to private policy coverages, all life insurance maintained
by Xxxxxx covering Executive shall cease as of Executive's Retirement Date.
7. Retirement Plans. Upon Executive's Retirement Date, Executive shall be
----------------
eligible to receive distributions from any of the qualified retirement plans
under which Executive currently participates. Xxxxxx may terminate the services
of Executive as a consultant prior to the end of the Consultancy Period as set
forth in Paragraph 1 at any time. In the event Xxxxxx terminates the
Executive's consultancy services, Xxxxxx shall commence payment of the
supplemental pension benefit as set forth in Paragraph 2.
8. Stock Options. The parties hereby confirm that Executive's termination
-------------
of employment constitutes a retirement and pursuant to Executive's outstanding
stock option agreements, Executive shall become vested in any outstanding stock
options to which he is not otherwise vested as of his Retirement Date.
9. Death of Executive. If Executive should die after benefits have
------------------
commenced under this Agreement but before receiving all such payments, Xxxxxx
shall pay the remaining benefits to the Executive's surviving spouse up to the
earlier of either date: (a) the date which is the end of the one hundred twenty
(120) month payment term described in Paragraph 2; or (b) the death of the
surviving spouse.
10. Tax Withholding. Xxxxxx shall withhold any and all taxes which are
---------------
required to be withheld from any benefits paid under this Agreement to
Executive.
11. Non-Competition/Non-Solicitation Confidential Information. In
---------------------------------------------------------
consideration of Xxxxxx entering into this Agreement and agreeing to make
payments to Executive pursuant hereto, such payments to which Executive is
otherwise not entitled to receive, Executive covenants and agrees that from the
date of execution of this Agreement and up through the end of the payment term
described in Paragraph 2, he shall not directly or indirectly, either as an
individual or as a proprietor, stockholder, partner, officer, director,
employee, agent, consultant or independent contractor of any individual,
partnership, corporation or other entity (excluding an ownership interest of one
percent (1%) or less in the stock of a publicly traded company):
(a) become employed by, participate in, or become connected in any
manner with the ownership, management, operation or control of any bank,
savings and loan or other similar financial institution which provides
banking or other financial services within thirty (30) miles of any office
now or in the future maintained by Xxxxxx; or
(b) participate in any way in hiring or otherwise engaging, or
assisting any other person or entity in hiring or otherwise engaging, on a
temporary, part-time, or permanent basis,
-3-
any individual who was employed by Xxxxxx during the three (3) year period
immediately prior to Executive's Retirement Date; or
(c) assist, advise, or serve in any capacity, representative or
otherwise, any third party in any action against Xxxxxx or transaction
involving Xxxxxx; or
(d) divulge, disclose, or communicate to others in any manner
whatsoever, any confidential information of Xxxxxx, including, but not
limited to, the names and addresses of customers of Xxxxxx, as they may
have existed from time to time or of any of Xxxxxx' prospective customers,
work performed or services rendered for any customer, any method and/or
procedures relating to projects or other work developed by or for Xxxxxx,
information relating to audits, strategic planning, acquisition strategies,
employment information, and all other similar information. The
restrictions contained in this subparagraph (d) apply to all information
regarding Xxxxxx, regardless of the source who provided or compiled such
information.
Executive understands and agrees that Xxxxxx will suffer irreparable harm
in the event that Executive breaches any of Executive's obligations under this
Paragraph 11, and that Executive's forfeiture of remaining payments under this
Agreement will be inadequate to compensate Xxxxxx for such breach. Accordingly,
Executive agrees that, in the event of a breach or threatened breach by
Executive of this Paragraph 11, Xxxxxx, in addition to and not in limitation of
any other rights, remedies or damages available to Xxxxxx at law or in equity,
shall be entitled to a temporary restraining order, preliminary injunction and
permanent injunction in order to prevent or to restrain any such breach by
Executive, or by any representatives and any and all persons directly or
indirectly acting for, on behalf of or with Executive.
12. Release of Claims. In consideration of the benefits to be provided by
-----------------
Xxxxxx to Executive, such benefits to which Executive is not otherwise entitled
to receive, Executive hereby agrees as follows:
(a) Executive knowingly and voluntarily releases and forever
discharges Xxxxxx, of and from any and all claims, known and unknown, which
Executive, his heirs, executors, administrators, successors, and assigns
have or may have against Xxxxxx that accrued or arose at any time prior to
the execution of this Retirement 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 Protection Act; the Pennsylvania Human Relations Act; the
Pennsylvania Wage Payment and Collection Law; (S)(S) 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) Executive 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 Xxxxxx, except where such waiver is
prohibited by law. Should any
-4-
such action, charge, or complaint be filed, Executive agrees that he will
not accept any relief or recovery therefrom. Executive shall reimburse
Xxxxxx for the fees and costs, including attorneys' fees, of defending such
action, charge, or complaint.
(c) Executive agrees not to disclose any information regarding the
existence or substance of this Retirement Agreement and General Release,
except to any attorney with whom Executive chooses to consult regarding
this Agreement, tax advisors, immediate family members, or where such
disclosure is required by law.
(d) Executive agrees that neither this Retirement 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
Xxxxxx of any liability or unlawful conduct of any kind.
(e) In the event that Executive breaches or attempts to breach any
provision of this Paragraph 11, Executive agrees that Xxxxxx 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. Executive further agrees to reimburse Xxxxxx for all
fees and costs, including attorneys' fees, incurred as a result thereof.
(f) By signing this Agreement, Executive represents and agrees that:
(1) this Agreement is entered into knowingly and voluntarily;
(2) that he is receiving consideration from Xxxxxx in addition to
anything of value to which he is already entitled;
(3) that 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) that he knowingly and voluntarily intends to be legally bound
by this Agreement;
(5) that he has been advised to consult with an attorney; and
(6) 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.
13. Property. Executive shall, no later than his Retirement Date, return
--------
to Xxxxxx all property and documents of Xxxxxx then in his possession.
14. Severability. Executive and Xxxxxx 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.
15. Construction. This Agreement shall be construed in accordance with
------------
the laws of the Commonwealth of Pennsylvania
-5-
16. 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.
17. 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 a
Change in Control Agreement effective August 10, 1998, by and between Executive
and Xxxxxx. There are no representations, agreements, arrangements or
understandings, oral or written, between the parties hereto relating to the
subject matter of this Agreement which are not fully expressed herein.
18. Binding Effect. It is the intention of the parties hereto to be
--------------
legally bound by the terms hereof and it is further intended that this Agreement
be binding upon the respective heirs, successors, assigns, executors and
administrators of the parties.
19. Amendment. No amendment to this Agreement shall be binding unless in
---------
writing and signed by the parties hereto.
ATTEST: XXXXXX FINANCIAL, M.H.C.
____________________________ By:_____________________________
(Asst.) Secretary
(SEAL)
ATTEST: XXXXXX FINANCIAL, INC.
____________________________ By:_____________________________
(Asst.) Secretary
(SEAL)
ATTEST: XXXXXX SAVINGS BANK
____________________________ By:_____________________________
(Asst.) Secretary
(SEAL)
-6-
ATTEST: NEW XXXXXX FINANCIAL, INC.
____________________________ By:_____________________________
(Asst.) Secretary
(SEAL)
WITNESS: EXECUTIVE
____________________________ _________________________________
Xxxx X. Xxxxxxxx
-7-
