EARLY RETIREMENT AND GENERAL RELEASE AGREEMENT Caution: Read Carefully This Is A Release Of All Claims
Caution:
Read Carefully
This
Is A Release Of All Claims
THIS
EARLY RETIREMENT AND GENERAL RELEASE AGREEMENT (hereinafter “Agreement”) is
voluntarily entered into as of the date(s) set forth below by and between the
undersigned individual, Xxxx X. Xxxx (hereinafter referred to in the first
person as "I," "me," etc.) and German American Bancorp, an Indiana banking
corporation.
WHEREAS,
I have provided notice that I desire to retire from my employment, and the
parties have agreed that my employment shall terminate on December 26, 2008
("Retirement Date") as a result of my decision to retire; and
WHEREAS,
the parties have reached an amicable agreement regarding my retirement and,
while neither party believes that any claims exist between us, the parties
wish
to enter into this Agreement in order to memorialize our agreement and to
resolve any and all claims that I may have, as described in this Agreement,
and
to further define the obligations that the parties have to one another
including, but not limited to, the confidentiality of various
matters.
NOW,
THEREFORE, in consideration of the mutual understandings, covenants, and the
release contained herein, and for other good and valuable consideration, the
sufficiency of which are hereby acknowledged, the parties hereby voluntarily
agree as follows:
1. Definitions.
Specific terms used in this Agreement have the following meanings: (a) words
such as "I," "me," and "my" include both the undersigned and anyone who has
or
obtains any legal right or claims through me; and (b) "Company" means German
American Bancorp, its past and present officers, directors, employees, trustees,
parent, agents, divisions, affiliates, insurers, any and all employee benefit
plans (and any fiduciary of such plans) sponsored by such entities, and each
such entity's subsidiaries, predecessors, successors, and assigns, and all
other
entities, persons, firms, or corporations liable or who might be claimed to
be
liable, none of whom admit any liability to me, but all of whom expressly deny
any such liability.
2.
My
Claims.
I
hereby release Company from any and all claims and actions that I may have
against it. The claims I am releasing ("My Claims") include all of my rights
to
any relief of any kind from the Company, including without limitation, all
claims I have now, whether or not I now know about the claims. These claims
include, but are not limited to the following:
(a)
all
claims relating to my retirement from and/or my employment with Company, or
the
termination of that employment, including, but not limited to, any claims
arising under the Fair Labor Standards Act; Title VII of the Civil Rights Act
of
1964; the Civil Rights Act of 1866; the Age Discrimination in Employment Act
("ADEA"); the Older Worker Benefits Protection Act ("OWBPA"); the Employee
Retirement Income Security Act; the Family and Medical Leave Act ("FMLA") (to
the extent that FMLA claims may be released under governing law); the Americans
with Disabilities Act; and/or any other federal, state or local law, including,
without limitation, the Indiana Civil Rights Law;
(b)
all
claims under any principle of common law or equity, including but not limited
to, claims for alleged unpaid compensation or other monies (other than salary
I
earn prior to my Retirement Date); commissions; any tort; breach of contract;
and any other allegedly wrongful employment practices; and
(c)
all
claims for any type of relief from the Company, including but not limited to,
claims for damages, costs and attorney's fees.
3. Exclusions
From Release. I
understand that My Claims released under this Agreement do not include any
rights or claims that may arise after the Effective Date of this Agreement
(the
“Effective Date” of this Agreement is that date occurring on the eighth
(8th)
day
after I sign this Agreement, provided that I do not revoke it, as described
below). I understand I do not waive future claims. Also, I further understand
that nothing
in this Agreement shall in any way adversely affect whatever vested rights
I may
have to benefits under any retirement or other employee benefit plan. In
addition, I acknowledge that this Agreement is not intended to (a) prevent
me
from filing a charge or complaint including a challenge to the validity of
this
Agreement, with the Equal Employment Opportunity Commission (“EEOC”); (b)
prevent me from participating in any investigation or proceeding conducted
by
the EEOC; or (c) establish a condition precedent or other barrier to exercising
these rights. While I have the right to participate in an investigation, I
understand that I am waiving my right to any monetary recovery arising from
any
investigation or pursuit of claim on my behalf. I
acknowledge that I have the right to file a charge alleging a violation of
the
ADEA with any administrative agency and/or to challenge the validity of the
waiver and release of any claim I might have under the ADEA without either:
(a)
repaying to the Company the amounts paid by it to me or on my behalf under
this
Agreement; or (b) paying to the Company any other monetary amounts (such as
attorney's fees and/or damages).
4. Amendment
to Confidentiality and Non-Compete Agreement.
The
Company and I entered into a Confidentiality and Non-Compete Agreement
(“Non-Compete Agreement”), dated July 1, 2000, which shall remain enforceable in
accordance with its terms and conditions. Because the Company has agreed, in
this Agreement, to make payments to me for a period of four (4) years and nine
(9) months after my Retirement Date, I agree that Section
8
of the
Non-Compete Agreement is hereby amended and said Section
8
shall
heretofore be replaced by a new Section
8,
as set
forth in Exhibit
A,
attached to and incorporated in this Agreement.
5. Company's
Agreement to Make Payments to Me .
In
exchange for my release and other promises made by me in this Agreement, and
on
the condition that I enter into the Supplemental Release Agreement with Company,
attached to and incorporated herein as Exhibit
B,
on or
after my Retirement Date, and on the further conditions that my employment
is
not terminated and that I do not resign prior to the Retirement Date, the
Company agrees as follows:
(a) As
soon
as practical after June 26, 2009 (six (6) months following the Retirement Date),
the Company shall pay me Thirty Seven Thousand Five Hundred Dollars ($37,500),
less taxes and other required deductions ("Initial Payment"). Thereafter, the
Company shall pay me an annualized amount of Seventy Five Thousand Dollars
($75,000), which amount shall be prorated for partial calendar years, and
payable in equal installments on a biweekly basis, less taxes and other required
deductions. The parties agree that the first biweekly installment shall be
paid
to me as soon as practical after the Initial Payment, and that no payment shall
be paid to me after I reach the age of 62 (September 2, 2013). In the event
of
my death prior to September 2, 2013, any remaining unpaid biweekly installment
payments shall be paid in accordance with the same schedule set forth above
to
my surviving spouse or, if she does not survive me, to my estate.
2
(b) The
Company agrees that, effective on the Retirement Date, I shall be eligible
to
elect early retiree medical insurance coverage under the German American
Bancorp, Inc. Employee Benefits Plan, as it may be amended from time to time.
I
acknowledge that the foregoing constitutes full and fair consideration for
the
release of My Claims and the other promises made by me in this Agreement, that
the Company is not otherwise obligated to provide such consideration to me,
and
that it is in addition to any other sums to which I am otherwise due. I also
acknowledge that I have received all other forms of compensation, of whatever
kind, that may be due to me by Company, other than salary that I will earn
prior
to my Retirement Date.
In
addition, I understand and agree that during my remaining employment with the
Company I shall perform all assigned duties and responsibilities to the best
of
my abilities and in a timely and professional manner, and I shall continue
to
adhere to all Company policies and procedures. I understand that among my
responsibilities will be to assist the Company in business transition matters
and I shall remain actively engaged in all responsibilities that may be assigned
to me during my remaining employment. I also understand that during my remaining
employment, I shall remain an at-will employee and that if the Company
determines, in its sole discretion, that I have failed to perform my duties
and
responsibilities as described above, it may terminate my employment at any
time,
in which case I shall not be entitled to any payment pursuant to this Agreement
or any other payment from the Company, other than the salary I earn through
my
last day of employment.
I
agree
to comply with all of the terms and conditions of this Agreement. I understand
and agree that if I fail to do so, including, but not limited to, those set
forth above, I shall not be entitled to any payment pursuant to this Agreement
or any other payment from the Company, other than the salary I earn through
my
last day of employment.
6. Return
of Company Property.
I
hereby represent and warrant that, on or before the Retirement Date, or at
such
other time as requested by the Company, I shall return to the Company all of
its
property that was ever in my possession or control. This property includes,
but
is not limited to, financial and other business records, personnel records,
office and other keys, directories, computer hardware and software, books,
documents, memoranda, and all other records, and copies of all such items.
3
7. Termination
of Relationship.
I
acknowledge that my employment will be separated as of the Retirement Date.
I
acknowledge that neither the Company nor its successors have any obligation,
contractual or otherwise, to rehire, reemploy, recall, or hire me in the
future.
8. Consultation
with Attorney.
As
required by the ADEA and OWBPA, I acknowledge that the Company has advised
me
that it is up to me as to whether I consult an attorney prior to signing this
Agreement, and that the Company has advised that I should do so.
9. Confidentiality
and Non-Disparagement.
In
further consideration of the payment described above, I agree, consistent with
applicable law, to protect the Company from intrusion into its business by
not
disclosing to any third-party any confidential information or trade secrets
of
the Company. Such
information includes, but not limited to, confidential information regarding
the
sales and other business activities of the Company, and information regarding
the Company's employees, services, marketing strategies, business plans,
operations, costs, research and development efforts, technical data and
know-how, financial information, internal procedures, forecasts, methods, trade
secrets, software programs, project requirements, inventions, trademarks, trade
names, and similar information regarding the Company’s business (collectively
referred to as “Confidential Information”). I agree that all such Confidential
Information is and shall remain the sole and exclusive property of the Company.
Except as may be expressly authorized by the Company in writing, or as may
be
required by law after providing due notice thereof to the Company, I agree
not
to disclose, or cause any other person or entity to disclose, any Confidential
Information to any third party as long as such information remains confidential
(or as limited by applicable law) and I agree not to make use of any such
Confidential Information for my own purpose or for the benefit of any other
entity or person.
I agree
to refrain from making any negative or disparaging statement about the Company,
its employees, agents, operations, or plans. In further protection of the
interests of the Company, I agree that, as to any matters currently pending,
or
which arise relating to my employment with the Company, I will cooperate with
the Company and its attorneys in connection with any proceeding involving the
Company before a court, an administrative agency, governmental organization,
or
an arbitrator. I further understand that it is an essential and material
condition of this Agreement that the existence and terms of this Agreement
are
to remain strictly confidential and shall not be disclosed by me to any person
other than to my attorney, my spouse, or as required by law. This
Agreement shall supplement any obligations that I may have to Company pursuant
to the Non-Compete Agreement and pursuant to all applicable state and federal
trade secrets laws.
10. Violation
of Agreement.
I
agree
that if I violate this Agreement by suing the Company for any of My Claims
(other than one under the ADEA or the OWBPA), or in any other respect, I will
pay all costs and expenses of defending the action or lawsuit incurred by the
Company, including but not limited to, reasonable attorneys’ fees, costs,
disbursements, awards, and judgments. In addition, if I violate this Agreement
by suing the Company for any of My Claims (other than one under the ADEA or
the
OWBPA), or if I violate it in any other respect, I will promptly reimburse
the
Company all amounts paid to me by it under this Agreement, plus legal interest,
and the Company shall be relieved of all obligations to me under this Agreement,
and the Company shall be entitled to collect all amounts paid to me by it
through legal process or otherwise, from me. As to any actions, claims, or
charges that would not be released because of the revocation, invalidity, or
unenforceability of this Agreement (other than one under the ADEA or the OWBPA),
I understand that the return of the payments made by the Company under this
Agreement to me and on my behalf, with legal interest, is a prerequisite to
asserting or bringing any such claims, charges, or actions. In the event the
Company brings any successful action against me to enforce this Agreement,
I
shall reimburse the Company for its attorneys' fees, costs and expenses incurred
in such action.
4
11. Severability.
I
understand, and it is my intent, that in the event this Agreement is ever held
to be invalid or unenforceable (in whole or in part) as to any particular type
of claim or charge or as to any particular circumstances, it shall remain fully
valid and enforceable as to all other claims, charges, and circumstances.
12. Period
to Consider Agreement and Expiration of Offer.
As
required by the ADEA and the OWBPA, I understand that I have forty five (45)
calendar days from the day that I receive this Agreement, not counting the
day
upon which I received it, to consider whether I wish to sign it. If I sign
this
Agreement before the end of the forty five (45) calendar day period, it will
be
my personal and voluntary decision to do so. I also understand that if I fail
to
deliver this Agreement to the Company within said period of time, it shall
expire and be deemed withdrawn by the Company.
13. Right
to Revoke Agreement.
As
required by the ADEA and the OWBPA, I understand that I may revoke this
Agreement at any time within seven (7) calendar days after I sign it, not
counting the day upon which I sign it. This Agreement will not become effective
or enforceable unless and until the seven (7) calendar day revocation period
has
expired without my revoking it, i.e. on the eighth calendar day after I sign
this Agreement.
14. Procedure
to Accept or Revoke.
To
accept this Agreement, I must deliver the Agreement, after it has been signed
and dated by me, to the Company, by hand or by mail, and it must be received
by
the Company’s President, Xxxx X. Xxxxxxxxx, within the forty five (45) calendar
day period that I have to consider this Agreement. To revoke my acceptance,
I
must deliver a written, signed statement that I revoke my acceptance to Xx.
Xxxxxxxxx by hand or by mail and any such notice of revocation must be received
by him within seven (7) calendar days after I signed the Agreement. If I choose
to deliver my acceptance or revocation notice by mail, it must be: (a)
postmarked and received by the above-named individual at the Company within
the
applicable period stated above; (b) properly addressed to said individual;
and
(c) sent by certified mail, return receipt requested.
15. My
Representations.
I HAVE
READ THIS AGREEMENT CAREFULLY, I HAVE HAD AN ADEQUATE OPPORTUNITY TO CONSULT
WITH AN ATTORNEY, AND I UNDERSTAND ALL OF ITS TERMS. IN AGREEING TO SIGN THIS
AGREEMENT, I HAVE NOT RELIED ON ANY STATEMENTS OR EXPLANATIONS MADE BY THE
COMPANY, EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT. I UNDERSTAND THAT
IN CONSIDERATION OF ACCEPTING THE PAYMENT DESCRIBED ABOVE, I MAY BE GIVING
UP
POSSIBLE FUTURE ADMINISTRATIVE AND/OR LEGAL CLAIMS.
5
16. Group
Reduction In Force Information.
I
acknowledge that, as required by the ADEA, 29 U.S.C. Section 626(f), I have
received (in Exhibit
C,
attached hereto and incorporated herein) adequate written notice of any class,
unit, or group of individuals covered by this employment termination program,
any eligibility factors for such program, and any time limits applicable to
this
program. I acknowledge that said exhibit, pursuant to 29 U.S.C. Section 626(f),
adequately informs me of the job titles and ages of all persons eligible or
selected for this program, and the ages of all individuals in my same job
classification or organizational unit who are not eligible or selected for
this
program.
17. Miscellaneous.
The
parties agree that: (a) this Agreement shall inure to the benefit of, may be
enforced by, and shall be binding on the parties and their heirs, executors,
administrators, personal representatives, assigns and successors in interest;
and (b) this Agreement may be assigned by the Company without notice to me
and
without my consent. However, the parties also agree that this Agreement is
personal to me and that I may not assign it. In the event of any dispute about
this Agreement, the laws of the State of Indiana shall govern the validity,
performance, enforcement, and all other aspects of this Agreement. I also
understand and agree that this Agreement contains all of the agreements between
the Company and me relating to the matters included in this Agreement. I also
agree that this Agreement may be executed in one or more counterparts, including
fax or pdf counterparts, all of which, taken together, shall constitute one
and
the same Agreement.
Please
read this Agreement carefully. This Agreement includes a release of all known
and unknown claims.
| Xxxx X. Xxxx | ||
| By: | /s/ Xxxx X. Xxxx | |
| |
Date:
|
|
|
|
||
| Received and agreed to by German American Bancorp on behalf of itself and all other persons and entities released herein: | ||
| By: | /s/ Xxxx X. Xxxxxxxxx | |
|
Date:
|
May 7, 2008 |
|
|
|
||
6
EXHIBIT
A
8. Non-Compete.
In
connection with Employee’s employment with the Company, Employee has or will
become acquainted with the affairs of the Company, its officers and employees,
its services, products, business practices, the needs and requirements of its
customers and prospective customers, trade secrets, Confidential Information
that the Company has or will acquire at its cost and expense and he will develop
business relationships and goodwill with the Company’s customers or potential
customers. Therefore, as an essential ingredient and in consideration of this
Agreement and Employee’s employment or continued employment, and for the other
consideration stated herein, Employee hereby agrees, in addition to any other
obligations or duties Employee owes to the Company, that during the term of
Employee’s employment and for the period of four (4) years and nine (9) months
thereafter, Employee shall not, do any of the following:
(a) Engage
in
any activity that is competitive with Company, including, but not limited to,
banking, investments, insurance, or other services which are offered by the
Company to its customers or which, at the time of the terminations of Employee’s
employment, it planned to offer to its customers. Employee acknowledges and
agrees that the foregoing prohibition is intended to be broadly interpreted
and
that this is reasonable in view of the breadth and scope of services offered
by
the Company to its customers, in view of the Company’s strategies and plans for
the future, and in view of the Company’s promise to make payments to him as set
forth in the Early Retirement and General Release Agreement that he entered
into
with Company.
(b) Perform
on behalf of any person or entity that competes with Company, the same or
similar services as those Employee performed for Company prior to the
termination of his employment;
(c) Directly
or indirectly own, operate, accept employment or be employed with, engage with,
participate with, consult with or assist in any way any company or business
that
is involved in or associated with banking, investments, insurance, or other
services offered by Company to its customers or which, at the time of the
termination of his employment, Company planned to offer to its
customers;
(d) Contact
or have contact with the customers, suppliers, or vendors of Company, either
directly or indirectly, for himself or for any other person or entity, so as
to:
(i) directly or indirectly divert or influence or attempt to divert or influence
any business of Company to a competitor of Company; (ii) directly or indirectly
solicit or provide products or services similar to those provided by Company;
or
(iii) otherwise directly or indirectly interfere in any fashion with the
business or operations then being conducted by Company or in order to assist
Employee or others in any endeavor that is competitive with the business of
Company then being conducted, or which Company, at the time of the termination
of his employment, planned to conduct; and
7
(e) Hire,
employ or attempt to hire or employ any person who is then an employee of
Company, or who was within the preceding one (1) year period an employee of
Company, or in any way: (i) cause or assist or attempt to cause or assist any
employee to leave Company; or (ii) directly or directly seek to solicit, induce,
bring about, influence, promote, facilitate, or encourage any current employee
of Company to leave Company to join a competitor or otherwise.
The
restrictions set forth in sections (a), (b), (c), (d), and (e) above shall
be
applicable and enforceable within each of the following geographic areas: (i)
Jasper, Indiana, and any location within a fifty (50) mile radius of Jasper;
and
(ii) any location within a fifty (50) mile radius of any location in which
Employee was employed or performed services for the Company during his
employ.
Employee
and the Company agree that for purposes of the restrictions and covenants set
forth in this Section 8, the “term of Employee’s employment,” shall include not
only the period during which Employee is directly employed by the Company,
but
any period thereafter during which he provides services to the Company in any
manner whatsoever. Employee agrees and acknowledges that he shall be bound
by
the terms of Section 8 at all times during which he provides services to the
Company in any manner whatsoever and for four (4) years and nine (9) months
after the last date on which he has provided such services. Employee’s
obligations set forth in this Section 8 and the Company’s rights and remedies
with respect thereto shall remain in full force and effect for the period(s)
stated herein regardless of any termination or resignation of Employee or other
prior termination of his employment and/or this Agreement for any
reason.
Employee
and the Company further agree that due to the nature of the Company’s business,
and in order to protect the Company’s Confidential Information and goodwill, the
covenants and restrictions in this Section 8, including, but not limited to,
the
restrictions on the Employee’s ability to engage in activity competitive with
the Company, are required to be broad in scope.
If
the
Employee has violated any of the restrictions or covenants set forth in Section
8 of this Agreement or there is a basis for the granting of injunctive relief
in
accordance with the terms of Section 4, then the parties agree that the period
of all restrictions and covenants set forth in this Section 8 automatically
shall be extended by the number of days that (i) the Employee was in violation
of such restriction or covenant or (ii) such a basis for the granting of
injunctive relief existed, whichever is longer.
8
EXHIBIT
B
NOTE:
THIS AGREEMENT IS NOT TO BE SIGNED BEFORE YOUR FINAL DATE OF EMPLOYMENT WITH
THE
COMPANY
SUPPLEMENTAL
SEPARATION AND GENERAL RELEASE AGREEMENT
This
Supplemental Separation and General Release Agreement ("Agreement") is entered
into by and between German American Bancorp, an Indiana banking corporation,
and
the undersigned individual ("Employee").
WHEREAS,
the parties have entered into a separate Early Retirement and General Release
Agreement (“Early Retirement Agreement”) which contemplates that Employee will
sign this Agreement in exchange for the benefits set forth in the Early
Retirement Agreement;
WHEREAS,
while the parties do not believe that any claims exist between them, they wish
to enter into this Agreement in order to memorialize their
agreement.
NOW,
THEREFORE, in consideration of the mutual understandings, covenants, and the
release contained herein, the parties hereby voluntarily agree as
follows:
1. Specific
terms used in this Agreement have the following meanings: (a) "Employee"
includes the undersigned individual and anyone who has or obtains any legal
right or claims through him; and (b) “Company” has the same meaning as set forth
in the Early Retirement Agreement. No person or entity released by this
Agreement admits any liability to Employee all such persons and entities
expressly deny any such liability to Employee.
2. The
claims Employee is releasing (“Employee's Claims”) include all of his rights to
any relief of any kind from the Company, including, but not limited to, all
claims Employee has now, whether or not Employee now knows about the claims,
including, but not limited to: any and all claims (including, but not limited
to, claims for attorneys’ fees), demands, losses, damages, injuries (whether
personal, emotional or other), agreements, actions, promises or causes of action
(known or unknown) in connection with or arising directly or indirectly out
of
or in any way related to any and all matters, transactions, events or other
things occurring prior to the date hereof, including all those arising out
of or
in connection with his employment with the Company or arising out of any events,
facts or circumstances which either preceded, flowed from or followed the
cessation of his employment, or which occurred during the course of his
employment with the Company or incidental thereto or
arising out of any other matter or claim of any kind whatsoever and whether
pursuant to common law, statute, ordinance, regulation or otherwise and
including claims of fraud or misrepresentation in the making, negotiation or
execution of this Agreement. Claims or actions released herein include, but
are
not limited to, those based on allegations of wrongful discharge and/or breach
of contract; those arising under each of the laws specifically set forth in
the
Early Retirement Agreement and any other federal, state or local law, ordinance,
rule or regulation. Employee agrees and understands that any claims he may
have
under any legal theory or the aforementioned statutes or any other federal,
state or local law, ordinance, rule or regulation are effectively waived by
this
Agreement. The
parties understand and agree that no claims arising after the Effective Date
of
this Agreement are waived or released by this Agreement (the “Effective Date” of
this Agreement is the eighth day after it is signed by Employee, on the
condition that the Agreement is not revoked by him as provided
below).
9
3. In
exchange for the consideration set forth in the Early Retirement Agreement,
which the Company is otherwise not obligated to provide to Employee, Employee
agrees to give up, release, and waive all of Employee’s Claims and all other
actions, causes of action, claims or demands that he has against the Company.
Employee will not bring any lawsuits against the Company relating to the claims
described above, nor will Employee allow any suit to be brought on Employee’s
behalf. The Separation Payment constitutes full and fair consideration for
the
release of Employee’s Claims. Employee agrees that his rights under the
aforementioned statutes and any other federal, state, or local law, rule or
regulation are effectively waived by this Agreement.
4. Employee
hereby represents and warrants that he has returned to the Company all of its
property that was in his possession or control. This includes, but is not
limited to, those items set forth in the Early Retirement Agreement.
5. Employee
understands that, as a condition of this Agreement, the fact of and terms and
conditions of this Agreement are to remain strictly confidential, and shall
not
be disclosed by him to any person other than to his attorney, spouse, or as
required by law or lawfully-issued subpoena.
6. Employee
represents and warrants that in the making, negotiation and execution of this
Agreement, he is not relying upon any representation, statement or assertion
of
fact or opinion made by any agent, attorney, partner, employee or representative
of the persons, parties, partnerships or corporations being released herein,
and
he hereby waives any right to rely upon all prior agreements and/or oral
representations made by any agent, attorney, partner, employee or representative
of such persons, parties, partnerships or corporations even though made for
the
purpose of inducing him to enter into this Agreement. The parties stipulate
and
agree that all clauses and provisions of this Agreement are distinct and
severable, and Employee understands, and it is his intent, that in the event
this Agreement is ever held to be invalid or unenforceable (in whole or in
part)
as to any particular type of claim or as to any particular circumstances, it
shall remain fully valid and enforceable as to all other claims and
circumstances.
7.
This
Agreement contains the entire agreement of the parties and supersedes all
previous negotiations, whether written or oral. This Agreement may be changed
only by an instrument in writing signed by the party against whom the change,
waiver, modification, extension or discharge is sought. As required by the
ADEA
and the OWBPA, Employee understands that: (a) he has forty five (45) calendar
days after he receives this Agreement to consider it, and that if he does not
sign it within that period of time, it shall be deemed withdrawn by the Company;
(b) he may revoke this Agreement within seven (7) calendar days after signing
it
by providing written notice of revocation to Xxxx Xxxxxxxxx, President of the
Company; and (c) he has been advised by the Company that he should seek the
advice of legal counsel prior to signing this Agreement, and he has had an
adequate opportunity to do so. After signing this Agreement, Employee shall
return it personally in an envelope marked "Personal and Confidential" to Xx.
Xxxxxxxxx.
10
8.
This
Agreement shall inure to the benefit of, may be enforced by, and shall be
binding on the parties and their heirs, executors, administrators, personal
representatives, assigns and successors in interest. It is understood and agreed
that no breach of this Agreement shall be cause to set it aside or to revive
any
of the claims being released herein. In the event of any dispute about this
Agreement, the laws of the State of Indiana shall govern the validity,
performance, enforcement, and all other aspects of this Agreement.
9. Employee
agrees that if he violates this Agreement by suing the Company for any of the
claims he has released herein (other than one under the ADEA or OWBPA), or
if he
violates it in any other respect, he will pay all costs and expenses of
defending the action or lawsuit incurred by the Company, including but not
limited to, reasonable attorneys’ fees, costs, disbursements, awards, and
judgments. In addition, if he violates this Agreement by suing the Company
for
any of the claims released herein (other than one under the ADEA or OWBPA),
or
if he violates it in any other respect, he will promptly reimburse the Company
all amounts paid to him and on his behalf by the Company under this Agreement
and the Early Retirement Agreement, plus legal interest, and the Company shall
be entitled to collect same through legal process or otherwise, from him, and
the Company shall be relieved of any obligation to Employee under this
Agreement. As to any actions, claims, or charges that would not be released
because of the revocation, invalidity, or unenforceability of this Agreement
(other than one under the ADEA or OWBPA), Employee understands that the return
of the payment made by the Company under this Agreement and the Early Retirement
Agreement to him and on his behalf, with legal interest, is a prerequisite
to
asserting or bringing any such claims, charges, or actions. In the event the
Company brings any successful action against Employee to enforce this Agreement,
Employee shall reimburse the Company for its attorneys' fees, costs and expenses
incurred in such action.
10. Employee
acknowledges that, as required by the ADEA, 29 U.S.C. Section 626(f), he has
received (in Exhibit
C,
attached to the Early Retirement Agreement that he previously signed) adequate
written notice of any class, unit, or group of individuals covered by this
employment termination program, any eligibility factors for such program, and
any time limits applicable to this program. Employee also acknowledges that
said
exhibit, pursuant to 29 U.S.C. Section 626(f), adequately informs him of the
job
titles and ages of all persons eligible or selected for this program, and the
ages of all individuals in his same job classification or organizational unit
who are not eligible or selected for this program.
11
11. Employee
represents that he has read this Agreement; fully understands each and every
provision of this Agreement; and has voluntarily, on his own accord, executed
this Agreement. This Agreement may be executed in counterparts, including
facsimile, pdf, or photocopy counterparts, each of which shall be deemed an
original but all of which taken together shall constitute a single document.
Employee also understands that, in signing this Agreement, he may be giving
up
possible legal and/or administrative claims or rights.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement on the dates
set
forth below.
| Xxxx X. Xxxx | ||
| Signature: | ||
| |
Date:
|
|
|
|
||
| Received and agreed to by German American Bancorp on behalf of itself and all other persons and entities released herein: | ||
| By: | ||
|
Date:
|
|
|
|
|
||
12
EXHIBIT
C
INFORMATION
REQUIRED BY ADEA AND OWBPA
REGARDING
OFFER OF SEPARATION PAYMENT
[This
exhibit omitted as the information is not material to Investors. The Registrant
agrees to furnish supplementally such exhibit to the Commission upon
request.]
13
