Exhibit 10.18
EXHIBIT A
CONFIDENTIAL SEPARATION AGREEMENT
AND GENERAL RELEASE
THIS AGREEMENT, made and entered into on this ______ day of
___________, 2003 by and between Waypoint Financial Corp., a Pennsylvania
corporation (the "Company"), with its principal office in Harrisburg,
Pennsylvania, and Xxxxxxx X. Xxxxxxx, Xx., a resident of Pennsylvania
("Executive").
WITNESSETH:
WHEREAS, the Company had heretofore employed Executive under an
Employment Agreement originally entered into as of _______________________, 2003
(the "Employment Agreement); and
WHEREAS, Executive has terminated employment and the Employment
Agreement has been terminated as of _____________________________, and
WHEREAS, the Company and Executive wish to enter into an agreement to
provide for a mutual release as to any claims including, without limitation,
claims that might be asserted by Executive under the Employment Agreement and
the Age Discrimination in Employment Act, as further described herein, and
reaffirm Executive's right to indemnification for actions taken within the scope
of his employment.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. The Company and Executive hereby agree that Executive's
termination of employment shall be effective on
________________ and that the Employment Agreement, except as
otherwise provided therein as to obligations that continue
beyond its term, shall terminate on that date.
2. Notwithstanding Executive's termination of employment and the
termination of the Employment Agreement, in consideration of
the release provided by Executive under paragraph 6 below, the
Company shall pay or cause to be paid or provided to
Executive, subject to applicable employment and income tax
withholdings and deductions, all amounts and benefits required
under Section 5.4 of the Employment Agreement.
3. Executive agrees and acknowledges that the Company, on a
timely basis, has paid, or has agreed to pay, to Executive all
other amounts due and owing based on his prior services in
accordance with the terms of the Employment Agreement and that
the Company has no obligation, contractual or otherwise to
Executive, except as provided herein, nor does it have any
obligation to hire, rehire or re-employ Executive in the
future.
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4. Executive agrees and reaffirms that the provisions of the
Employment Agreement relating to Confidential Information
shall continue to apply notwithstanding the termination of
Executive's employment and the termination of the Employment
Agreement, and that the Company shall be entitled to all
remedies available under Section 4 of the Employment Agreement
in enforcing its rights hereunder as well as under Section 2
of the Employment Agreement.
5. Executive further agrees and reaffirms that Section 3 of the
Employment Agreement, as to Non-Competition, shall continue to
apply notwithstanding the termination of Executive's
employment and the termination of the Employment Agreement,
and that the Company shall be entitled to all remedies
available under Section 4 of the Employment Agreement in
enforcing its rights hereunder as well as under Section 3 of
the Employment Agreement.
6. In full and complete settlement of any claims that Executive
may have against the Company, including any possible
violations of the Age Discrimination in Employment Act, 29
U.S.C. '621 et. seq. __ ___ ("ADEA"), in connection with his
termination of employment, and for and in consideration of the
undertakings of the Company described herein, Executive does
hereby REMISE, RELEASE, AND FOREVER DISCHARGE the Company, and
each of its subsidiaries and affiliates, their officers,
directors, shareholders, partners, employees and agents, and
their respective successors and assigns, heirs, executors and
administrators (hereinafter all included within the term "the
Company"), of and from any and all manner of actions and
causes of actions, suits, debts, claims and demands whatsoever
in law or in equity, which he ever had, now has, or hereafter
may have, or which Executive's heirs, executors or
administrators hereafter may have, by reason of any matter,
cause or thing whatsoever from the beginning of Executive's
employment to the date of this Agreement; and particularly,
but without limitation of the foregoing general terms, any
claims arising from or relating in any way to Executive's
employment relationship or the Employment Agreement and his
termination from that employment relationship and the
termination of the Employment Agreement, including but not
limited to, any claims which have been asserted, could have
been asserted, or could be asserted now or in the future under
any federal, state or local laws, including any claims under
ADEA, Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. '2000e et. seq. ("Title VII"), 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,xx.xx. 1981-1988 of Title 42 of the U.S.C., the
Immigration Reform and Control Act, the National Labor
Relations Act, the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), the Rehabilitation Act of 1973,
the Americans with Disabilities Act, the Family and Medical
Leave Act, Section 11(c) of the Occupational Safety and Health
Act, and any common law claims now or hereafter recognized and
all
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claims for counsel fees and costs; provided, however, that
nothing herein shall preclude Executive from joining the
Company, and the Company shall defend Executive, in any action
brought against and for which he would have been indemnified
pursuant to the bylaws of the Company as of the date hereof,
unless later limited in accordance with applicable law, or
under applicable law (in which case he shall notify the
Company within five business days after receiving service of
process as to the commencement of the action and give the
Company the right to control the defense of any such action).
Notwithstanding the foregoing, nothing contained herein shall
prevent Executive from requiring the Company to fulfill its
obligations hereunder, under the Employment Agreement or under
any employee benefit plan, as defined in Section 3(3) of
ERISA, maintained by the Company and in which Executive
participated.
7. Executive further agrees and covenants that neither he, nor
any person, organization or other entity on his behalf, will
file, charge, claim, xxx or cause or permit to be filed,
charged, or claimed, any action for personal equitable or
monetary or other similar relief against the Company,
involving any matter occurring at any time in the past up to
and including the date of this Agreement, or involving any
continuing effects of any actions or practices which may have
arisen or occurred prior to the date of this Agreement,
including any charge of discrimination under ADEA, Title VII,
the Workers' Compensation Act or state of local laws. In the
event that Executive breaches his undertakings under this
Agreement, then the Company will be relieved of all further
obligations owed hereunder and he will forfeit all monies paid
to him and the value of the benefits due under Section 5.4 of
the Employment Agreement.
8. In full and complete settlement of any claims that the Company
may have against Executive, other than the fulfillment of
Executive's obligations hereunder or his remaining obligations
under the Employment Agreement as provided in Sections 4 and 5
above, and for and in consideration of the undertakings of
Executive described herein, the Company does hereby REMISE,
RELEASE, AND FOREVER DISCHARGE Executive and his heirs,
executors and administrators (hereinafter all included within
the term "Executive"), of and from any and all manner of
actions and causes of actions, suits, debts, claims and
demands whatsoever in law or in equity, which the Company ever
had, now has, or hereafter may have, by reason of any matter,
cause or thing whatsoever within the scope of Executive's
employment by the Company from the beginning of Executive's
employment with the Company to the date of this Agreement; and
particularly, but without limitation of the foregoing general
terms, any claims arising from or relating in any way to
actions taken by Executive within the scope of his employment
relationship or pursuant to the Employment Agreement and the
termination of that employment relationship with the Company
and of the Employment Agreement.
9. The Company further agrees and covenants that neither it, nor
any person, organization or other entity on its behalf, will
file, charge, claim, xxx or cause or
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permit to be filed, charged, or claimed, any action for
damages, including injunctive, declaratory, monetary or other
relief against Executive, involving any matter occurring at
any time in the past up to the date of this Agreement, or
involving any continuing effects of any actions or practices
which may have arisen or occurred prior to the date of this
Agreement so long as Executive meets all of his obligations
under this Agreement and the Employment Agreement. In the
event that the Company breaches its undertakings under this
Agreement, then Executive will be relieved of all further
obligations owed hereunder.
10. Executive hereby agrees and acknowledges that under this
Agreement, the Company has agreed to provide him with
compensation and benefits that are in addition to any amounts
to which he otherwise would have been entitled under the
Employment Agreement or otherwise in the absence of this
Agreement, and that such additional compensation is sufficient
to support the covenants and agreements by Executive herein.
11. Executive further agrees and acknowledges that the
undertakings of the Company as provided in this Agreement are
made to provide an amicable conclusion of Executive's
employment by the Company and, further, that Executive will
not require the Company to publicize anything to the contrary.
Executive and the Company, its officers and directors, will
not, disparage the name, business reputation or business
practices of the other. In addition, by signing this
Agreement, Executive agrees not to pursue any internal
grievance with the Company.
12. Executive hereby certifies that he has read the terms of this
Agreement, that he has been advised by the Company to consult
with an attorney and that he understands its terms and
effects. Executive acknowledges further that he is executing
this Agreement of his own violation, without any threat,
duress or coercion and with a full understanding of its terms
and effects and with the intention, as expressed in Section 6
hereof, of releasing all claims recited herein in exchange for
the consideration described herein, which he acknowledges is
adequate and satisfactory to him provided the Company meets
all of its obligations under this Agreement. The Company has
made no representations to Executive concerning the terms or
effects of this Agreement other than those contained in this
Agreement.
13. Executive hereby acknowledges that he was presented with this
Agreement on ________________________, and that he was
informed that he had the right to consider this Agreement and
the release contained herein for a period of twenty-one (21)
days prior to execution. Executive also understands that he
has the right to revoke this Agreement for a period of seven
(7) days following execution, by giving written notice to the
Company at 000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000,
Attention: Chairman, Compensation and Benefits Committee, in
which event the provisions of this Agreement shall be null and
void, and the parties shall have the rights, duties,
obligations and remedies afforded by applicable law.
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14. Executive and the Company agree that if any part of this
Agreement is determined to be invalid, illegal or otherwise
unenforceable, the remaining provisions of this Agreement
shall not be affected and will remain in full force and
effect.
15. Executive agrees that he will not in any way communicate the
terms of this Agreement to any person other than his immediate
family, attorney or financial advisor unless compelled by law
or administrative proceeding to do so.
16. This Agreement shall be interpreted and enforced under the
laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
ATTEST: WAYPOINT FINANCIAL CORP.
________________________________ By: _______________________________
Secretary Xxxxxxx X. Xxxxx
Title: Compensation and Benefits
Committee, Chairman
WITNESS: EXECUTIVE:
------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
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