CONSULTING AGREEMENT, SEPARATION AGREEMENT, WAIVER AND RELEASE
CONSULTING
AGREEMENT, SEPARATION AGREEMENT, WAIVER AND RELEASE
This
CONSULTING
AGREEMENT, SEPARATION
AGREEMENT, WAIVER AND RELEASE
(“Separation Agreement”) is between GREATER BUFFALO SAVINGS BANK (“Bank”) and
XXXXXXXX XXXXXXX (“Executive”) (collectively, the “Parties”).
WHEREAS,
Executive and Bank have previously entered into an Employment Agreement dated
as
of January 1, 2007 (“Employment Agreement);
WHEREAS,
Executive and Bank wish to set forth their respective rights and obligations
arising from Executive’s separation from Bank; and
WHEREAS,
Bank
wishes to obtain from Executive assistance in the transition period following
Executive’s separation from Bank and Executive is willing provide such
transition services as a consultant upon the terms and conditions set forth
in
this Separation Agreement.:
NOW,
THEREFORE,
in
consideration of the mutual promises, benefits and covenants herein contained,
Bank and Executive hereby agree as follows:
1. Employment
Separation.
(a) Executive
acknowledges and agrees that Executive’s resignation from employment and service
as Executive Vice President - Mortgage Banking Division of Bank is effective
as
of September 27, 2007 at 5:00 p.m. (“Separation Date”).
(b) From
and
after the Separation Date, except as otherwise set forth in this Separation
Agreement, Executive shall not be entitled to any further compensation or monies
from Bank or to receive any benefits or to participate in any benefit plan
or
program of Bank. Executive acknowledges that, as of the date of this Separation
Agreement, except as set forth herein, Executive has received all wages,
benefits and payments of any kind to which Executive may be
entitled.
(c) This
Separation Agreement shall not compromise any right Executive may have to group
health continuation coverage under Sections 601 et
seq.
of
ERISA (“COBRA”) nor shall it compromise any right to vested benefits accumulated
under the Bank’s 401(k) Plan subject to the terms of the plan(s).
2. Medical
Benefits.
Provided Executive (i) signs this Separation Agreement, and (ii) does not revoke
it pursuant to Section 18 of this Separation Agreement, Executive will, for
the period
beginning on the Separation Date and ending on December 31, 2007 (“Benefit
Continuation Period”), be entitled to receive continued coverage under Bank’s
group medical program in which he participates as of the Separation Date. During
the Benefit Continuation Period, Executive’s cost of group medical plan coverage
will be the same as the amount paid by other employees of Bank for participation
in said Bank-sponsored benefit programs. With respect to Bank’s group medical
plan, the Parties agree that the Separation Date will be the date of Executive’s
“qualifying event” for purposes of Executive’s continuation coverage rights
under COBRA and that the COBRA coverage period will commence on the Separation
Date. As a condition of receipt of benefits under this paragraph 2(b)(i),
Executive must timely elect continuation coverage under COBRA.
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Notwithstanding
the foregoing, in the event Executive becomes reemployed with another entity
during the Benefit Continuation Period, Bank’s provision of coverage and payment
of the benefits described in this Section will cease (even if Executive is
entitled under COBRA to continue to participate in Bank’s group medical plan at
Executive’s sole cost). Executive shall immediately provide notice to Bank if
Executive becomes reemployed with another entity during the Benefit Continuation
Period.
3. Consulting
Services.
Executive will provide consulting services to Bank concerning the operations
and
business of Bank’s mortgage business as may be reasonably requested from time to
time by Bank’s President, Chief Financial Officer, or Board of Directors
(“Consulting Services”). Bank hereby agrees to engage Executive, and Executive
hereby accepts such engagement to provide the Consulting Services, for the
period beginning on the Separation Date and continuing for a period ending
on
December 31, 2007 (“Consulting Period”). Bank and Executive do hereby
acknowledge that the relationship between Bank and Executive during the
Consulting Period shall be that of an independent contractor and that Executive
shall not be treated as an employee for any purpose during that period. The
Executive’s work schedule and location to perform such duties shall be
established by mutual agreement of the parties.
4. Consulting
Compensation.
In
consideration of the performance of the Consulting Services hereunder, Executive
will receive the following:
(a) From
and
after the Separation Date, Bank shall pay Executive seven consecutive equal
biweekly payments of $ 7,692.31 commencing on October 4, 2007 and ending on
December 27, 2007.
(b) A
payment
of $ 171,153.83 on January 10, 2008.
(c) During
the Consulting Period, Bank shall provide and make available to Executive
reasonable office space and secretarial and other related support services
for
Executive's use at the Bank’s principal office.
If
Executive fails to perform and provide any reasonably requested Consulting
Services during the Consulting Period, Executive will not be entitled to any
compensation provided in clauses (a) and (b) above, and any payments previously
made under such clauses will be promptly returned by Executive to
Bank.
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5. Release.
(a) For
and
in consideration of the promises and other valuable consideration paid to
Executive pursuant to this Separation Agreement, Executive, for himself and
for
Executive’s heirs, executors, successors and assigns (collectively, “Executive
Releasors”), hereby releases and discharges Bank and any and all of its parents,
subsidiaries, divisions, affiliated entities, predecessors, successors and
assigns, and all of their Executive benefit plans, funds, and any of the
foregoing entities’ past or present officers, directors, employees,
stockholders, trustees, administrators, attorneys, accountants and agents
(collectively “Bank Releasees”) from any and all claims, demands, causes of
action, and liabilities of any kind whatsoever, whether known or unknown, which
the Executive Releasors ever had, now have or may hereafter have against any
or
all Bank Releasees from the beginning of the world through the date of this
Separation Agreement by reason of any actual or alleged act, omission,
transaction, practice, conduct, occurrence, or other matter, except for those
rights expressly set forth or reserved in this Separation Agreement. It is
the
understanding and agreement of the Parties that the release provided for by
this
sub-paragraph shall be a general release in all respects.
(b) Without
limiting the generality or force or effect of Section 5(a) above, or
characterizing the nature of the Executive Releasors’ claims, this document
releases the Bank Releasees from any and all claims arising, directly or
indirectly, from (i) Executive’s employment with Bank; (ii) the terms and
conditions of such employment; (iii) the termination of Executive’s employment
with Bank; (iv) the negotiation and entry into this Separation Agreement and/or
the terms of this Separation Agreement; (v) any federal, state or local statute,
or court decision including, but not limited to, claims under the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964,
the
Americans with Disabilities Act, the Employee Retirement and Income Security
Act, the Xxxxxxxx-Xxxxx Act of 2002, the New York Human Rights Law, N.Y. Exec.
Law Art. 15; (vi) any and all claims for breach of contract; (vii) any and
all
claims for lost wages, bonuses, back pay, front pay, employee benefits,
including severance pay, or for damages or injury of any type whatsoever,
including, but not limited to, defamation, injury to reputation, intentional
or
negligent infliction of emotional distress, (whether arising by virtue of
statute or common law, and whether based upon negligent or willful actions
or
omissions); and (viii) any and all claims for compensatory or punitive damages,
attorneys’ fees, costs and disbursements which the Executive Releasors ever had,
now have or hereafter can, shall or may have against the Bank Releasees for,
upon or by reason of any actual or alleged act, omission, transaction, practice,
conduct, occurrence or other matter up to and including the date of the
execution of this Separation Agreement by Executive, except for those rights
specifically provided for or expressly reserved by Executive in this Separation
Agreement and any claim necessary to enforce the terms of this Separation
Agreement.
(c) Executive
represents that Executive has not filed or permitted to be filed against Bank
or
any Bank Releasees, individually or collectively, any lawsuits or charges
(including any arbitrations), and covenants and agrees that Executive will
not
do so at any time hereafter with respect to the subject matter of this
Separation Agreement and claims released pursuant to this Separation Agreement,
except as otherwise provided in this Separation Agreement. Executive
acknowledges that Executive fully understands and agrees that, to the fullest
extent permitted by law, this Separation Agreement shall operate as a complete
defense to any claim or entitlement which hereafter may be asserted by Executive
or any other person acting on Executive’s behalf, against Bank Releasee(s) for
or on account of any matter or thing whatsoever arising out of or in any way
based upon the circumstances, facts, and events related to Executive’s
employment and separation from employment or to any claim made by Executive
against any Bank Releasee(s) arising from such circumstances, facts, and events.
However, nothing in this Separation Agreement shall be construed to prohibit
Executive from filing a charge (including a challenge to the validity of this
Agreement) with or participating in any investigation or proceeding conducted
by
the EEOC. Notwithstanding the preceding sentence, Executive agrees to waive
Executive’s right to recover monetary damages in any charge or other proceeding
of any kind filed by Executive or anyone else on Executive’s behalf to the
fullest extent allowed by law.
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(d) Executive
acknowledges and agrees that the consideration to be provided to Executive,
as
set forth above in Sections 2 and 4 of this Separation Agreement: (i) provides
items of value to which Executive would not otherwise be entitled in the absence
of this Separation Agreement; (ii) fully and completely settles all claims
by
Executive and any attorney Executive has retained against Bank and/or the other
Bank Releasees for attorneys fees, costs, disbursements and the like; and (iii)
is sufficient consideration for Executive’s promises under this Separation
Agreement.
6. No
Admission.
The
making of this Separation Agreement is not intended, and shall not be construed,
as any admission by Bank or Executive or any of the Bank Releasees that they
have violated any federal, state, or local law, or have committed any wrong
against Executive or any other person or entity.
7. Non-Competition.
For the
period beginning on the Separation Date and ending on December 31, 2007,
Executive shall not engage, anywhere within the Western New York counties in
which Bank has branches, whether directly or indirectly, as principal, owner,
officer, director, agent, employee, consultant or partner, in the management
of
a bank holding company, commercial bank, savings bank, credit union or any
other
financial services provider that competes with Bank or their products or
programs (“Restricted Activities”), provided that the foregoing shall not
restrict Executive from engaging in any Restricted Activities which Bank direct
Executive to undertake or which Bank otherwise expressly authorizes. The
foregoing shall not restrict Executive from accepting employment with a bank
or
other organization in which the Executive will be engaged in mortgage banking
activities or engaged in providing mortgage banking products and services.
The
foregoing shall not restrict Executive from owning less than five percent (5%)
of the outstanding capital stock of any company which engages in Restricted
Activities, provided that Executive is not otherwise involved with such company
as an officer, director, agent, employee or consultant. The foregoing provisions
this Section shall not be held invalid because of the scope of the territory
covered, the actions restricted thereby, or the period of time such covenant
is
operative. The provisions of this Section 7 supersedes any provision in the
Employment Agreement relating to the same subject matter.
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8. Non-Solicitation.
Executive agrees that for the period beginning on the Separation Date and ending
six months thereafter, Executive shall not, directly or indirectly, without
the
written consent of Bank: (i) recruit or solicit for employment any employee
of Bank or encourage any such employee to leave their employment with Bank,
or
(ii) solicit, induce or influence any customer, supplier, lessor or any
other person or entity which has a business relationship with Bank to
discontinue or reduce the extent of such relationship with Bank. For the
purposes of this Separation Agreement, the term “solicit” means any direct or
indirect communication of any kind whatsoever, regardless of by whom initiated,
inviting, advising, encouraging, or requesting any person or entity, in any
manner to take or refrain from taking any action. The provisions of this Section
8 supersedes any provision in the Employment Agreement relating to the same
subject matter.
9. Return
of Bank Property.
Executive warrants that he has returned all Bank Property to Bank. For purposes
of this Separation Agreement, “Bank Property” includes, but is not limited to,
all information and materials belonging to the Bank or its customers or clients,
including office keys and equipment, documents, policy or practice manuals,
records, customer files, written materials, electronic information, software
packages, computers, computer disks, drives or files, handheld computer devices
such as Blackberries, mobile phones, corporate credit cards, all other Bank
Property in Executive’s position, including any and all reproductions or copies
thereof.
10. Non-Disparagement.
Executive covenants that, except to the extent required by law, he will not
make
to any person or entity any statement, whether written or oral, that directly
or
indirectly impugns the integrity of, or reflects negatively on the Bank or
any
of its executives, officers, directors, or employees or that denigrates,
disparages or results in detriment to the Bank.
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11. Confidential
Information.
For
purposes of this Separation Agreement, “Confidential Information” includes, but
is not limited to, any and all records, files, reports, letters, memoranda,
records, data, flowcharts, promotional materials, agreements, information,
market studies, pricing, customer lists, business methods, financial and cost
data, business plans and strategies and other secret, confidential or
proprietary information of any nature relating to the Bank, its personnel,
affiliates and subsidiaries, and their parents, officers, board members,
distributors, suppliers or employees, which is not generally available to the
public. Except as required by law, Executive shall not disclose to or discuss
with any person or entity any Confidential Information. Executive hereby
warrants and guarantees that he has surrendered to the Bank all documents and
data of any kind, including electronic versions of documents and data in
machine-readable form, and any and all reproductions, in whole or in part,
of
any items relating to Confidential Information and has not made or retained
any
copy or extract of such documents, data or reproductions. Executive agrees
to
give Bank written notice of any and all attempts to compel of any Confidential
Information or other information as to which disclosure is prohibited by this
Separation Agreement. Such written notice shall be provided as soon as
reasonably possible after Executive becomes aware of such attempt to compel
such
information and not less than five (5) days before compliance with any subpoena
or order is requested or required.
12. Executive
Cooperation.
Executive shall cooperate fully in connection with any and all existing or
future litigations or investigations brought by or against the Bank or any
of
its agents, officers, directors, or employees in which and to the extent
Executive’s cooperation is necessary. In the event that Executive is subpoenaed
in connection with any litigation or investigation, if legally permissible,
Executive will promptly notify the Bank and shall give the Bank an opportunity
to respond to such notice before taking any action or making any decision in
connection with such subpoena. The Bank will reimburse Executive for reasonable
out-of-pocket expenses incurred as a result of such cooperation.
13. Remedy.
Executive acknowledges and agrees that the time periods and the other
restrictions contained in Sections 7 through and including 12 are reasonable,
legitimate and fair to Executive and necessary to protect the interests of
Bank.
In order to enforce compliance with this Separation Agreement, Executive
acknowledges that the failure to comply with the provisions of Sections 7
through and including 12 of this Separation Agreement will cause the Bank
irrevocable harm and that a remedy at law for such failure would be an
inadequate remedy for Bank. Therefore, Executive consents that the Bank may
obtain an order of specific performance, an injunction, a restraining order,
or
other equitable relief from a court or arbitrator having jurisdiction. The
availability of equitable relief shall not preclude the Bank from recovering
any
monetary damages or other relief to which it is entitled under applicable
law.
14. Breach.
Any
material breach by Executive of this Separation Agreement shall be considered
a
breach for which the Bank shall be entitled to cease the payments and benefits
described in Sections 2 and 4 of this Separation Agreement, in addition to
any
other remedies to which the Bank may be entitled by law.
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15. Binding
Effect.
This
Separation Agreement is binding upon, and shall inure to the benefit of, the
Parties and their respective heirs, executors, representatives, successors
and
assigns except that Executive may not assign any of his obligations to provide
the Consulting Services pursuant to this Separation Agreement without the prior
written consent of Bank.
16. Choice
of Law.
This
Separation Agreement is to be construed at all times in accordance with and
governed by the laws of the State of New York applicable to agreements made
and
to be performed entirely within such State.
17. Opportunity
to Review.
Executive acknowledges and warrants that (a) Executive has had a reasonable
period of time not less than 21 days, to consider the terms and provisions
of
this Separation Agreement; (b) Executive has been advised by Bank in this
writing to consult, and has had adequate opportunity to consult with, an
attorney of Executive’s choosing prior to executing this Separation Agreement;
(c) Executive has carefully read this Separation Agreement in its entirety,
has
had an opportunity to have its provisions explained to Executive by an attorney
of Executive’s choosing, and fully understands the significance of all of its
terms and provisions; and (d) Executive is signing this Separation Agreement
voluntarily and of Executive’s own free will and assents to all of the terms and
conditions contained herein.
18. Effective
Date and Right to Revoke.
Executive has been given 21 days from the date of receipt to consider the terms
and conditions of this Separation Agreement. Executive may accept this
Separation Agreement by signing it after the Separation Date and returning
an
original Separation Agreement to Xxxxxx X. Xxxx, Xx. Greater Buffalo Savings
Bank, any time during this 21-day period. Executive agrees that any changes
to
the Separation Agreement from the time it was offered to Executive, whether
material or immaterial, do not restart the running of the 21-day period. After
signing this Separation Agreement, Executive shall have seven days to revoke
it
by indicating Executive’s desire to do so in a writing received by Bank in
accordance with this Section 18 of this Separation Agreement no later than
5:00
p.m. Eastern Standard Time on the seventh day following the date Executive
signs
this Separation Agreement (“Revocation Period”). The effective date of this
Separation Agreement shall be the eighth day following Executive’s signing of
this Separation Agreement provided Executive does not revoke it during the
Revocation Period. If Executive does not accept this Separation Agreement as
set
forth above, or revokes this Separation Agreement during the Revocation Period,
this Separation Agreement (including any obligations of the Bank to provide
the
consideration referred to above) shall be deemed null and void.
19. Section
409A Compliance.
This
Separation Agreement is intended to comply and shall be administered in a manner
that is intended to comply with Section 409A of the Internal Revenue Code and
shall be construed and interpreted in accordance with such intent.
20. Entire
Agreement and Termination of Employment Agreement.
This
Separation Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof, and the duties, compensation and benefits
of Executive, and except as otherwise specifically provided herein, supersedes
all prior communications, representations, agreements, understandings, plans
and
arrangements between the parties, whether oral or written. Provided Executive
(i) signs this Separation Agreement, and (ii) does not revoke it pursuant to
Section 18 of this Separation Agreement, Bank and Executive hereby terminate
the
Employment Agreement as of the Separation Date specifically including any
obligations or rights of under Sections 10 and 11 of the Employment Agreement
which would otherwise survive the termination of the Employment
Agreement.
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21. Severability.
If any
provision of this Separation Agreement shall be held by a court of competent
jurisdiction to be illegal, void, or unenforceable, such provision shall be
of
no force and effect. In addition, if any one or more of the provisions contained
in this Separation Agreement is held to be excessively broad as to duration,
scope, activity or subject, such provisions will be construed by limiting and
reducing them so as to be enforceable to the maximum extent compatible with
applicable law.
22. Counterparts.
This
Separation Agreement may be executed in several counterparts, each of which
shall be an original as against any party who or which signed it, and all of
which shall constitute one and the same document.
23. Notices.
All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be given (and shall be deemed to have been duly given
upon
receipt) by delivery in person, by prepaid overnight courier (providing proof
of
delivery), by facsimile or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
or facsimile numbers (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 23):
if
to
Executive:
Xxxxxxxx
Xxxxxxx
0000
Xxxxx Xxxxxx Xxxxx
Xxxxxxxx
Xxxxxx, XX 00000
if
to
Bank:
GREATER
BUFFALO SAVINGS BANK,
Attn:
President
0000
Xxxx
Xx.
Xxxxxxx,
Xxx Xxxx 00000
[Remainder
of Page Intentionally Left Blank. Signature Page Follows.]
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Separation Agreement.
EXECUTIVE | GREATER BUFFALO SAVINGS BANK | ||
Xxxxxxxx Xxxxxxx |
By:
|
||
Date:
|
Date:
|
STATE
OF
NEW YORK
:ss.
COUNTY
OF
___________
On
the
_____ day of ____________, in the year 2007, before me, the undersigned,
personally appeared XXXXXXXX XXXXXXX, personally known to me or proved to me
on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in
his
capacity, and that by his signature on the instrument, the individual executed
the instrument.
____________________________________________________
Notary
Public
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