SEPARATION AGREEMENT AND GENERAL RELEASE
EXHIBIT
10.1
SEPARATION
AGREEMENT AND GENERAL RELEASE
This
Separation Agreement and General Release (this “Agreement”) is made
and entered into effective as of the 3rd day of April, 2008, by and
between Southern Connecticut Bancorp, Inc., and its subsidiary, The Bank of
Southern Connecticut, Inc., having their principal place of business in New
Haven, Connecticut (collectively, the “Company”) and Xxxxxxx
X. Xxxxxxxx, an individual residing in Guilford, Connecticut (the “Employee”).
W I T N E
S S E T H :
WHEREAS,
the Employee has been a long-time employee of the Company, most recently serving
as its President and Chief Executive Officer pursuant to that certain Employment
Agreement by and between the Employee and the Company dated February 27, 2008
(the “Employment
Agreement”); and
WHEREAS,
the Employee and the Company have agreed that the Employee will resign from his
employment with the Company, and the Employment Agreement will be terminated,
all pursuant to the terms of this Agreement.
NOW,
THEREFORE, in consideration of the promises and the mutual covenants herein
contained, the parties hereto, intending to be legally bound, do hereby mutually
covenant and agree as follows:
1. Consideration and
Benefits.
(a) Separation
Payment. The Company will pay the Employee a separation
payment of Three Hundred Thousand Dollars ($300,000) less all applicable
federal, state and local taxes and withholdings (the “Separation
Payment”). The Company will pay the Separation Payment to the
Employee upon the later of (a) the Company’s receipt of this Agreement,
fully-executed by Employee; and (b) the expiration of the Revocation Period (as
defined below).
(b) Restricted
Stock. The Employee and the Company acknowledge and agree that
(i) the Employee was entitled to Seven Thousand Five Hundred (7,500) shares of
restricted stock of the Company (the “Shares”), vesting
over a three year period under the terms of the Employment Agreement; (ii) Three
Thousand (3,000) of the Shares were vested as of December 31, 2007; and (iii)
Four Thousand Five Hundred (4,500) of the Shares remain unvested as of the date
of this Agreement and shall be forfeited by the Employee.
(c) Health
Insurance. In the event that the Employee elects to continue
his group medical, dental and vision (collectively referred to hereinafter as
“health”) insurance pursuant to COBRA and timely completes and delivers all
documents necessary for such health insurance continuation, the Company agrees
to directly pay the COBRA premium payments until the earlier of: (i) the date on
which the Employee first becomes eligible to obtain group health insurance
through another employer; or (ii) March 31, 2009. If the Employee
still has not secured alternate health insurance as of March 31, 2009, he may
continue group health insurance in accordance with COBRA at his own
expense.
(d) 401(k)
Plan. The Employee shall be entitled to the vested portion of
his account in the Company’s 401(k) Plan, in accordance with the terms and
conditions of the 401(k) Plan.
(e) No
Entitlement. The Employee understands, acknowledges and agrees
that he would not be entitled to the Separation Payment described in Section
1(a) or the payment of COBRA premiums described in Section 1(c) in the absence
of this Agreement.
2. Termination of Employment
Agreement. The Employment Agreement is terminated effective as
of April 3, 2008. The Employee shall voluntarily resign from all
positions he holds for the Company and its subsidiaries including, without
limitation, his position as an officer and director of the Company, effective as
of April 3, 2008. Except as provided in this Agreement, the Employee
shall have no right to any further compensation or benefits from the Company,
whether pursuant to the Employment Agreement or otherwise.
3. General Release of Claims;
by the Employee. The Employee, on behalf of himself and his
heirs, legal representatives and assigns, hereby knowingly and voluntarily
waives, remises, releases and forever discharges, to the extent such releases
and discharges are permitted by applicable law, the Company and its officers,
directors, employees, agents, affiliates and the successors, assigns and legal
representatives of the foregoing (collectively, the “Released Parties”),
of and from all, and all manner of, action and actions, cause and causes of
action, suits, debts, dues, sums of money, accounts, reckoning, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims and
demands whatsoever, in law, in admiralty or in equity (collectively, “Claims”) which
against the Released Parties the Employee ever had, now has or which the heirs,
legal representatives or assigns of the Employee hereafter can, shall or may
have for, upon or by reason of any matter, cause or thing whatsoever, whether
known or unknown, asserted or unasserted, suspected or unsuspected, whether or
not related to his employment or separation from employment with the Company,
from the beginning of the world to the date the Employee signs this
Agreement. Without limiting the generality of the foregoing, the
Employee specifically waives, remises, releases and forever discharges his right
to bring any Claims against the Released Parties (a) under Title VII of the
Civil Rights Act, the Age Discrimination in Employment Act (including the
amendments of the Older Workers Benefit Protection Act of 1990), the Employee
Retirement Income Security Act, the Americans with Disabilities Act, the Family
and Medical Leave Act, the Connecticut Fair Employment Practices Act, and any
other federal, state or local law dealing with discrimination on any basis,
including but not limited to sex, age, race, national origin, sexual
orientation, veteran status, marital status, religion, and physical and/or
mental disability; and (b) relating to or in connection with unpaid wages,
unpaid commissions, unpaid bonuses, unpaid overtime, accrued vacation pay,
breach of contract, breach of the implied covenant of good faith and fair
dealing, wrongful termination, violation of public policy, retaliation,
misrepresentation, defamation, infliction of emotional distress or any other
possible Claim under any statute or common law.
4. General Release of Claims;
by the Company. The Company, on behalf of itself and its
successors, assigns and legal representatives, hereby knowingly and voluntarily
waives, remises, releases and forever discharges, to the extent such releases
and discharges are permitted
by
applicable law, the Employee and his heirs, legal representatives and assigns,
of and from all, and all manner of Claims which against the Employee and his
heirs, legal representatives and assigns the Company ever had, now has or which
the successors, assigns or legal representatives of the Company hereafter can,
shall or may have for, upon or by reason of any matter, cause or thing
whatsoever, whether known or unknown, asserted or unasserted, suspected or
unsuspected, whether or not related to his employment or separation from
employment with the Company, from the beginning of the world to the date the
Employee signs this Agreement.
5. Revocation
Period. Employee may revoke this Agreement within a seven (7)
day period following the day he executes this Agreement (the “Revocation
Period”). To be effective, any such revocation must state, “I
hereby revoke my acceptance of my Separation Agreement with the Southern
Connecticut Bancorp, Inc., and its subsidiary, The Bank of Southern Connecticut,
Inc.” and must be submitted in writing and received by the Company (at the
address set forth immediately below) before the end of the Revocation
Period. Any revocation notice must be delivered to:
Xx. Xxxxx
X. Xxxxxx, Chairman
Southern
Connecticut Bancorp, Inc./The Bank of Southern Connecticut
000
Xxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
This
Agreement shall not become effective or enforceable until the Revocation Period
has expired. If the last day of the Revocation Period is a Saturday,
Sunday or legal holiday in Connecticut, then the Revocation Period shall not
expire until the next following day which is not a Saturday, Sunday or legal
holiday.
6. Consultation with an
Attorney. The Employee acknowledges that he has been advised
that this Agreement is a binding legal document and that he should consult with
an attorney regarding this Agreement. The Employee represents that he
has read this Agreement, that he fully understands the terms and legal effect of
this Agreement, and that he is entering into this Agreement knowingly and
voluntarily. The Employee acknowledges that he has received
sufficient time to consider this Agreement, and to retain and consult with an
attorney of his own choice regarding it. The Employee also
acknowledges that he has had at least twenty-one (21) days to review and
consider this Agreement before signing it, or is knowingly and voluntarily
waiving the remainder of such twenty-one (21) day period on the advice of his
attorney.
7. No Future Right to
Employment. The Employee understands and agrees that the
Company shall have no obligation to employ him in any capacity after the
effective date of this Agreement. Any offer of employment or
opportunity for consulting services provided to the Employee by the Company
subsequent to the effective date of this Agreement shall be solely in the
discretion of the Company. The Employee agrees that if he seeks any
employment or consulting opportunities with the Company subsequent to the date
hereof, a rejection of his application or inquiry will not constitute a
violation of law in any manner whatsoever and he will not file any legal action
against the Company arising from or related to such events.
8. No
Solicitation. The Employee agrees that from the date of this
Agreement until December 31, 2009, he shall not, personally or through others,
solicit, divert, or hire away any employee, supplier, customer or client of the
Company, nor shall the Employee encourage any employee, supplier, customer or
client to terminate his, her or its relationship with the Company, or otherwise
attempt to do any of the foregoing. The Employee and the Company
expressly agree that a violation by the Employee of his covenants and agreements
contained in this Section 8 would cause irreparable injury to the Company which
injury would not be susceptible of monetary valuation and that, accordingly, in
addition to any other rights and remedies it may have at law or in equity, the
Company shall be entitled to seek and obtain an injunction enjoining and
restraining the Employee from doing or continuing to do any act and any other
violation or threatened violation of his covenants and agreements contained in
this Section 8.
9. Public
Disclosure. The Employee and the Company shall mutually agree
on a public announcement describing the Employee’s separation from employment
pursuant to this Agreement. The Employee acknowledges that this
Agreement and any related public announcement may be filed with the Securities
Exchange Commission and other federal, state or local regulatory bodies, in
accordance with applicable law or administrative practice.
10. Non-Disparagement. Neither
the Company nor the Employee will make disparaging remarks, orally or in
writing, about each other to any person or entity, regarding any aspect of
Employee’s employment at the Company or any other matter related to the
employment relationship that existed between the Company and the
Employee.
11. Entire
Agreement. This Agreement sets forth the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes any and all prior agreements, representations or understandings,
written or oral, between the parties with respect thereto. The
Employee acknowledges that he has not relied on any representations, promises,
or agreements of any kind made to him in connection with his decision to sign
this Agreement, except for those set forth in this Agreement. No
modification or amendment of this Agreement shall be binding unless in writing
and signed by the parties hereto.
12. Governing Law and
Enforcement. This Agreement shall be governed by and construed
and enforced in accordance with the substantive laws of the State of Connecticut
without regard for its conflicts of law rules. The Employee and the
Company hereby agree to be subject to the personal jurisdiction of the state and
federal courts of Connecticut should any dispute arise relating to or in
connection with this Agreement. In any such action, both parties
hereby waive their right to a trial by a jury and consent to a trial by a
judge.
13. Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal representatives,
successors and assigns.
14. Severability. Should
any provision of this Agreement be deemed illegal or unenforceable by any court
of competent jurisdiction, the parties hereby jointly request that such
provision be modified to the least extent necessary to render it legal and
enforceable. If such provision cannot be modified to be legal and
enforceable, then such provision shall immediately become null and void, leaving
the remainder of this Agreement in full force and effect.
15. Counterparts. This
Agreement may be executed in one or more counterparts and exchanged by facsimile
or other electronic means. Each counterpart will be deemed to be an
original copy of this Agreement and all of which, when taken together, will be
deemed to constitute one and the same agreement.
By
Signing this Agreement, the Employee Waives Any Right that He Has, Ever Had or
Ever Will Have to Bring or Maintain a Lawsuit or Make Any Claims Against the
Company Involving Any Matter Arising Prior to the Signing of this
Agreement. This Additional Notice Regarding the Effect of this
Agreement Is Provided Solely as a Reminder and Does Not Lessen, Modify or Alter
in Any Way the Scope, Meaning and Effect of the Release of Claims Set Forth
Above.
EMPLOYEE:
/s/ Xxxxxxx X.
Xxxxxxxx
Xxxxxxx
X. Xxxxxxxx
STATE OF
CONNECTICUT :
: ss: New
Haven
COUNTY OF
NEW
HAVEN :
On this 27th day of March, 2008, before
me personally appeared Xxxxxxx X. Xxxxxxxx, to me known to be the person
described in the foregoing Separation Agreement, who in my presence executed the
same, acknowledging such execution to be her free act and deed.
/s/ Xxxxxxxx
Xxxxxxxx
Notary
Public
My
Commission Expires: March 31,
2009
SOUTHERN
CONNECTICUT BANCORP, INC.,
THE BANK
OF SOUTHERN CONNECTICUT, INC.
By: /s/ Xxxxx X.
Xxxxxx
Xxxxx X. Xxxxxx
Its Chairman
STATE OF
CONNECTICUT :
: ss: New
Haven
COUNTY OF
NEW
HAVEN :
On this 26 day of March, 2008, before
me personally appeared Xxxxx X. Xxxxxx, who in my presence executed the
foregoing Separation Agreement, acknowledging such execution to be his free act
and deed on behalf of Southern Connecticut Bancorp, Inc. and The Bank of
Southern Connecticut, Inc.
/s/ Xxxxxxxxx X.
Xxxxxx
Notary
Public
My
Commission Expires: January 12,
2012
