EXHIBIT 10.20
AGREEMENT AND GENERAL RELEASE
WITH XXXX X. XXXXXXXX
AGREEMENT AND GENERAL RELEASE
WITH XXXX X. XXXXXXXX
This Agreement and General Release ("Agreement") is entered into effective
as of September 7, 2000, by and between WAYPOINT FINANCIAL CORP., a Pennsylvania
stock corporation (the "Company") and the holding company of Waypoint Bank (the
"Bank") and XXXX X. XXXXXXXX ("Executive").
RECITALS:
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A. In connection with the Agreement and Plan of Reorganization, as amended,
dated March 27, 2000 (the "Merger Agreement"), by and between Xxxxxx Financial,
M.H.C., Xxxxxx Financial, Inc., New Xxxxxx Financial, Inc. (which has changed
its name to Waypoint Financial Corp.), Xxxxxx Savings Bank (which has changed
its name to Waypoint Bank and which shall be referred to herein as the "Bank")
and York Financial Corp. and York Federal Savings and Loan Association, the
parties hereto agreed that Executive would be offered certain benefits,
including but not limited to supplemental pension benefits, health insurance
coverage, a bonus for calendar year 2000, title to the automobile currently
provided to Executive, and the option to convert existing life insurance
coverages maintained by the Bank for Executive to private policy coverages, upon
termination of employment pursuant to the Agreement and General Release in the
form attached hereto as Exhibit 1 (the "Separation Agreement"); and
B. In connection with the approval of the merger (the "Merger") of York
Financial Corp. ("York Financial") with and into the Company, the Office of
Thrift Supervision ("OTS") stated by Order No. 2000-75, dated August 14, 2000,
that any agreements constituting "employment agreements" with the Bank (but not
the Company) within the meaning of 12 C.F.R. ss.563.39 could not be entered into
without first obtaining the non-objection of the Regional Director of the OTS,
which non-objection has not yet been received; and
C. The OTS has informed the Bank that the Separation Agreement shall be
deemed to be an employment agreement subject to OTS regulatory review and the
issuance of the non-objection of the Regional Director of the OTS if entered
into by the Bank; and
D. In consideration of the above and the agreement of the parties under the
Merger Agreement, the Separation Agreement shall be amended effective as of
September 7, 2000, as set forth below.
For good and valuable consideration, the receipt of which is hereby
acknowledged and based on the mutual covenants and agreements herein contained
and in the Separation Agreement, the parties hereby agree as follows:
The Separation Agreement is hereby amended to eliminate the Bank as a party
to said Separation Agreement. The Company shall honor all the terms and
conditions of the Separation Agreement and any reference to an obligation of
Xxxxxx Savings Bank in the Separation Agreement shall be deemed to be an
obligation of the Company so long as this Agreement remains in effect.
This Agreement has been executed by a duly authorized officer of the
Company and the Executive, effective as of the date first above written.
ATTEST: WAYPOINT FINANCIAL CORP.
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By: Xxxxxxx X. Xxxxxxx, Xx.
Title: Chairman and Chief Executive
Officer
WITNESS:
XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx
AGREEMENT AND GENERAL RELEASE
This Retirement Agreement and General Release is made and entered into on
this day of September 7, 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 retire as an employee and
officer of 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 upon his retirement.
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. Retirement. Executive and Xxxxxx hereby agree that Executive will
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(terminate his employment) with Xxxxxx effective December 31, 2000 ("Retirement
Date"). Provided that Executive has not revoked this Agreement, once executed by
him, within the revocation period set forth in Paragraph 11 Executive's last day
of employment with Xxxxxx will be his Retirement Date and following such date
Xxxxxx will commence paying to Executive the benefits described in the following
Paragraphs.
2. Supplemental Pension Benefits. Commencing January 1, 2001, and
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continuing on the first day of each month thereafter for a period which is 119
months, Xxxxxx shall pay to Executive a monthly supplemental pension benefit
equal to Two Thousand Dollars ($2,000.00).
3. Health Insurance Coverage. Upon Executive's early retirement, Executive
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and his spouse shall be eligible to participate under the group health insurance
plan of Xxxxxx, in accordance with the provisions of Xxxxxx' group health. plan,
up to the date that each attains his/her Medicare eligibility age, said
participation accomplished either by way of active covered participation or by
way of continuation coverage ("COBRA") participation.
4. Bonus. Executive will be eligible to receive a bonus for calendar year
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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.
5. Automobile. As soon as administratively feasible after Executive's
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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
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option to convert existing life insurance coverages maintained by Xxxxxx for
Executive for a period of thirty one (31) days following Executive's 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 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.
7. Retirement Plans. Upon Executive's Retirement Date, Executive shall be
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eligible to receive distributions from any of the qualified retirement plans
under which Executive currently participates.
8. Death of Executive. If Executive should die after benefits have
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commenced under this Agreement but before Executive has received all such
payments, Hams shall pay the remaining benefits to the Executive's surviving
spouse up to the earlier of either: (a) the date which is the end of the
thirty-six (36) month payment term described in Paragraph 2; or (b) the death of
the surviving spouse. If Executive should die prior to commencement of benefits
under this Agreement, this Agreement shall terminate and no benefits shall be
provided to Executive or his surviving spouse hereunder. Provided however, if
Executive should die prior to the commencement of benefits under this Agreement,
Executive's surviving spouse shall be entitled to receive group term life
insurance benefits in an amount as previously selected by Executive under
Xxxxxx' group term life insurance plan.
9. Tax Withholding. Xxxxxx shall withhold any and all taxes which are
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required to be withheld from any benefits paid under this Agreement to
Executive.
10. Non-Competition/Non-Solicitation Confidential Information. In
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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 thirty-six
(36) month payment term described in Paragraph 1, 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,
parttime, or permanent basis, any individual who was employed by Xxxxxx during
the three (3) year period immediately prior to Executive's Retirement Date.
Notwithstanding any other provisions of this Agreement to the contrary, the
terms of this subparagraph (b) shall not be limited to the thirty-six (36) month
restriction set forth above; or
(c) assist, advise, or serve in any capacity, representative or otherwise,
any third party in any action against Xxxxxx or transaction involving Xxxxxx.
Notwithstanding any other provisions of this Agreement to the contrary, the
terms of this subparagraph (c) shall not be limited to the thirty-six (36) month
restriction set forth above; 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 Hams, 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. Notwithstanding any other provisions of this Agreement to the
contrary, the terms of this subparagraph (d) shall not be limited to the
thirty-six (36) month restriction set forth above and all information referred
to herein shall not be disclosed unless and until it becomes known to the
general public from sources other than the Executive.
Executive understands and agrees that Xxxxxx will suffer irreparable harm
in the event that Executive breaches any of Executive's obligations under this
Paragraph 9, 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 9, 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.
11. Release of Claims. In consideration of the benefits to be provided by
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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; xx.xx. 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 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.
12. Property. Executive shall, no later than his Retirement Date, return to
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Xxxxxx all property and documents of Xxxxxx then in his possession.
13. Severability. Executive and Xxxxxx acknowledge that any restrictions
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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.
14. Construction. This Agreement shall be construed in accordance with the
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laws of the Commonwealth of Pennsylvania.
15. Captions. The captions used herein are for convenience and reference
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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.
16. Entire Agreement. This Agreement contains the entire understanding
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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.
17. Binding Effect- It is the intention of the parties hereto to be legally
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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.
18. Amendment. No amendment to this Agreement shall be binding unless in
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writing and signed by the parties hereto.
ATTEST: XXXXXX FINANCIAL, M.H.C
By:
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Secretary
(SEAL)
ATTEST: XXXXXX SAVINGS BANK
By:
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Secretary
(SEAL)
ATTEST: XXXXXX FINANCIAL, INC.
By:
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Secretary
(SEAL)
WITNESS: EXECUTIVE
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Xxxx X. Xxxxxxxx
