EXHIBIT 10.22
Separation, Waiver and Release Agreement
with Xxxxx X. Xxxxxxx
Dated February 5, 2002
SEPARATION, WAIVER AND RELEASE AGREEMENT
This SEPARATION, WAIVER AND RELEASE AGREEMENT ("Agreement") is made by and
between Xxxxx X. Xxxxxxx ("Xxxxxxx") and Commercial Federal Bank, A Federal
Savings Bank ("CFB").
RECITALS:
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This Agreement is made with reference to the following facts and
objectives:
(a) Xxxxxxx has been employed by CFB prior to this Agreement as Executive
Vice-President and Chief Information Officer;
(b) Xxxxxxx is resigning from his employment with CFB effective at the
close of business on February 5, 2002; and
(c) The parties are entering into this Agreement in order to settle any
and all existing and potential disputes that they have or may have with
one another with respect to Xxxxxxx'x employment and separation from
employment and to release CFB and its affiliates completely from any
and all claims arising therefrom.
NOW, THEREFORE, in order to carry out the intent of the parties as set
forth in the foregoing recitals, which are made a contractual part of this
Agreement, and in consideration of the mutual agreements, provisions, recitals,
promises and covenants contained in this Agreement, the parties agree as
follows:
1. RESIGNATION. Xxxxxxx hereby voluntarily resigns from each employment,
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corporate office and other position he holds with Commercial Federal Corporation
and with any of its subsidiary entities, including CFB, effective at 5:00 p.m.
on February 5, 2002. Xxxxxxx is relieved of all authority to act on behalf of
CFB after such date and time.
2. CONSIDERATION TO XXXXXXX. As consideration to Xxxxxxx for the provisions of
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this Agreement:
(A) CFB will pay to Xxxxxxx a cash separation allowance by continuing
Xxxxxxx'x base salary compensation for approximately six (6)
months as described in this subparagraph 2.(A). Semi-monthly base
salary continuation payment(s) will be made to Xxxxxxx by
automatic payroll deposit to a checking or savings account
designated by Xxxxxxx on each of CFB's regular pay days (the 15th
and last days of the month), beginning February 15, 2002. Each
such payment will be in the amount equivalent to Xxxxxxx'x
semi-monthly base salary at the rate in effect as of February 1,
2002, less applicable federal and state tax withholdings and less
any amounts withheld pursuant to any other provision of this
Agreement or authorized by Xxxxxxx to be withheld. The final
semi-monthly salary continuation payment will be made on August
15, 2002.
(B) CFB will continue any health and dental insurance coverage that
Xxxxxxx and/or his dependents had as of February 1, 2002 under
CFB's group health and dental plans, as if Xxxxxxx were to remain
an active employee of CFB, through August 31, 2002. Xxxxxxx will
pay to CFB -- and CFB will withhold from the payment(s) described
in subparagraph 2.(A) above -- the portion of the cost of such
coverages that CFB requires active employees to contribute to the
cost of such coverages.
(C) To enable Xxxxxxx to obtain job search services and
assistance, CFB will pay to Xxxxxxx the sum of Nine-Thousand
Dollars ($9,000.00) in a lump sum less applicable federal and
state tax withholdings. This payment will be made to Xxxxxxx
within fifteen (15) days after the date this Agreement becomes
effective as described in paragraph 4.
(D) If approved by the insurance company providing the insurance
coverage, CFB will continue any group life insurance coverage
Xxxxxxx may have under CFB's group life insurance plan -- but
not coverage for any of Xxxxxxx'x dependents -- until August
31, 2002.
(E) Xxxxxxx may exercise any stock options that previously vested
or previously were exercisable by him, that have not expired,
within the ninety (90) calendar day period beginning February
5, 2002. Except as provided in the preceding sentence, Xxxxxxx
shall have no right, title or interest in or to and may not
exercise any of the options that were scheduled to vest in or
first be exercisable by Xxxxxxx on date(s) later than February
5, 2002, and it is understood and agreed that any right, title
and interest Xxxxxxx may have had in regard to such options is
cancelled as a result of his separation from the employment of
CFB.
(1) It is understood that exercise by Xxxxxxx of options
to purchase shares of stock under this subparagraph
2.(E) may result in taxable income to Xxxxxxx, and
that CFB may be obligated to withhold federal and
state taxes respecting that taxable income. Within
ten (10) days after CFB notifies Xxxxxxx of the
amount of such taxes required to be withheld, Xxxxxxx
shall deliver or mail to CFB his check (or a
cashier's check) in the amount of such taxes required
to be withheld, payable to "Commercial Federal Bank."
Xxxxxxx'x check shall be delivered or mailed to such
individual at CFB as CFB may direct. If Xxxxxxx fails
to timely deliver or mail such check or if such check
shall for any reason not be paid when presented by
CFB for payment, then CFB may deduct and withhold the
amount of such taxes from any payments otherwise due
from CFB to Xxxxxxx under subparagraph 2.(A) of this
Agreement. CFB may at its option delay delivery and
issuance of shares of stock to Xxxxxxx until Xxxxxxx
has paid to CFB the amount of such tax withholdings.
(F) In lieu of any bonus that might have been awarded to Xxxxxxx
in cash and restricted stock if Xxxxxxx had remained
employed by CFB through the date of declaration and payment
of such award, CFB will pay Xxxxxxx a cash bonus in the
amount of $121,165.72, in a lump sum less applicable tax
withholdings, on or before April 30, 2002. Xxxxxxx shall not
otherwise be entitled to any further or additional bonus or
compensation from CFB except as expressly provided in this
Agreement.
If an act required to be performed by CFB under this Paragraph 2 would
be required by this Paragraph 2 to be performed prior to the effective date of
this Agreement as determined under paragraph 4 of this Agreement, then such act
shall be deemed to have been performed timely by CFB if performed within
fourteen (14) calendar days after the effective date of this Agreement as
determined under paragraph 4 of this Agreement
Xxxxxxx acknowledges that the payment(s) and other consideration being
provided to Xxxxxxx under this paragraph 2 include consideration and benefits
that are in addition to anything that Xxxxxxx is already entitled to pursuant to
Xxxxxxx'x employment with CFB. It is understood that the payment of the
separation allowance and other consideration to be provided to Xxxxxxx under
this paragraph 2 constitute a voluntary, ad hoc severance arrangement, and that
same shall neither create nor be evidence of any severance pay plan or employee
welfare benefit plan, and that no employee or former employee of CFB or its
affiliated entities, other than Xxxxxxx, shall have any rights or claims under
the above described voluntary, ad hoc arrangement.
3. OTHER BENEFITS.
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(A) Beginning September 1, 2002, Xxxxxxx may elect to continue
health and dental insurance coverage for himself and his
dependents pursuant to and subject to the health care
continuation provisions of "COBRA", 29
U.S.C. (S)(S) 1161-1169. If Xxxxxxx elects to continue such
coverage(s), Xxxxxxx shall be responsible during the
applicable continuation period allowed by "COBRA"-- normally
eighteen (18) months-- for paying 100% of the cost of such
coverage(s). If Xxxxxxx elects to continue such coverage(s),
Xxxxxxx shall also pay an administrative fee of two percent
(2%) of the cost of such coverage(s) during the applicable
continuation period. If Xxxxxxx (or any of his dependents)
at any pertinent time becomes ineligible for "COBRA"
continuation coverage or further continuation coverage under
the provisions of CFB's plan(s) and consistent with the
federal "COBRA" law, then CFB shall be excused from any
further obligation to Xxxxxxx (or to the dependent(s) of
Xxxxxxx thus becoming ineligible for "COBRA" continuation
coverage, as the case may be) under this subparagraph 3.(A).
CFB will mail to Xxxxxxx, on or about August 1, 2002,
appropriate information and forms regarding election of
continuation insurance coverage under the federal "COBRA"
law, unless Xxxxxxx and his dependents have by that date
become ineligible for "COBRA" continuation coverage under
the provisions of CFB's plan(s) and consistent with the
federal "COBRA" law.
(B) CFB will pay to Xxxxxxx his accrued vacation that remains
unused as of February 5, 2002, if any, less applicable state
and federal tax withholdings.
(C) All other benefits, and the continuation or cessation thereof,
will be handled, addressed and administered in accordance with
the terms of CFB's plans, policies and procedures in effect on
February 1, 2002.
4. RIGHT TO REVOKE AND EFFECTIVE DATE. CFB has advised Xxxxxxx that
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Xxxxxxx has the right to revoke this Agreement at any time within seven (7) days
after Xxxxxxx signs this Agreement. Xxxxxxx may revoke this Agreement within the
seven (7) days period by delivering - or by mailing by certified prepaid United
States mail, return receipt requested - written notice of such revocation to Xx.
Xxxxxxx X. Xxxxxxxxxx, Commercial Federal Bank, 00000 Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxx, Xxxxxxxx 00000-0000. Unless revoked by one of such methods, this
Agreement shall become effective on the eighth day following the date Xxxxxxx
signs this Agreement.
5. RELEASE. In consideration of the covenants, agreements, and recitals
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contained in this Agreement, Xxxxxxx on behalf of himself and his assigns,
heirs, successors and personal representatives, hereby knowingly and voluntarily
releases and forever discharges CFB - and every entity affiliated with or
related to CFB as a parent or subsidiary entity or by common or interrelated
ownership or otherwise - and each of its and/or their respective agents,
employees, officers, directors, attorneys, predecessors, successors and assigns
(all of such released parties being collectively referred to hereinafter as
"Released Parties"), from any and all claims, damages, demands, liabilities,
attorney fees and expenses of any nature whatsoever arising out of or relating
in any way to Xxxxxxx'x employment with CFB and/or his separation from that
employment. This release shall include and extend to, without limitation, any
and all claims, demands and liabilities under, asserting or pursuant to federal,
state or local laws, regulations, decisions or ordinances generally, or
prohibiting employment discrimination (including Title VII of the Civil Rights
Act of 1964, the Americans with Disabilities Act and the Age Discrimination in
Employment Act), or based upon any alleged tort, breach of any contract,
wrongful discharge, or any other alleged wrongdoing whatsoever. This release
shall be construed broadly, it being the intent of the parties to fully resolve
any and all claims and potential claims of Xxxxxxx against Released Parties and
any of them, other than claims arising after this Agreement is signed by
Xxxxxxx.
6. COVENANT NOT TO XXX. Xxxxxxx covenants and agrees that he will forever
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refrain from bringing or participating as a party in any action, lawsuit, claim,
or proceeding based on, arising out of, or in connection with Xxxxxxx'x
employment with CFB or separation therefrom, other than claims arising as a
result of occurrences after this Agreement is signed by Xxxxxxx.
Nothing herein shall preclude Xxxxxxx from seeking any unemployment
compensation benefits to which he may otherwise be entitled by law.
7. ACKNOWLEDGEMENTS AND REPRESENTATIONS OF THE PARTIES. The parties
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acknowledge and represent as follows:
(A) This Agreement constitutes a legally binding agreement by each
party, enforceable in accordance with its terms.
(B) CFB and Xxxxxxx have had ample opportunity to review this
Agreement. Further, Xxxxxxx has been advised by CFB, and has
had ample opportunity, to consult with an attorney of his own
choosing prior to signing this Agreement regarding the terms,
conditions and ramifications of this Agreement, and Xxxxxxx
has in fact consulted with legal counsel of his own choosing
in that regard or has elected not to do so.
(C) CFB and Xxxxxxx are each entering into this Agreement
knowingly, voluntarily, and of their own volition and neither
is under any duress or undue influence.
(D) CFB and Xxxxxxx have read and understand this Agreement.
Xxxxxxx understands that, by signing this Agreement, he is
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releasing and waiving all claims arising out of or relating to
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his employment or separation from employment, other than
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claims arising after the date Xxxxxxx signs this Agreement.
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(E) Xxxxxxx has been advised and hereby acknowledges that he has
twenty-one (21) days, which will begin to run on February 5,
2002, in which to determine whether or not to accept the terms
of this Agreement and to sign this Agreement. Xxxxxxx may, if
he so chooses, waive this period and sign the Agreement prior
to the expiration of the 21-day period.
8. FUTURE EMPLOYMENT AND CONFIDENTIAL INFORMATION. Xxxxxxx hereby waives
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any entitlement he may have or claim to have of employment by CFB. Xxxxxxx
further agrees that he will not disclose, disseminate, or use any confidential
information concerning CFB's employees, operations, customers, products or
services (existing or contemplated), pricing policies, marketing and hiring
techniques, financial information, costs, profits, sales, or other information
or data of any kind, in any future employment or self-employment.
9. COVENANT OF CONFIDENTIALITY.
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A. Except as stated in the following subparagraph, Xxxxxxx
agrees, promises and covenants that he will keep the existence
of this Agreement - and each of the terms of this Agreement -
confidential.
X. Xxxxxxx may disclose the existence of this Agreement and
its terms as follows, and such disclosures shall not violate
the covenant of confidentiality stated in the preceding
subparagraph: (1) to Xxxxxxx'x spouse and his attorney(s),
provided that they first agree that they will not further
disclose any such information inconsistently with the
provisions of this subparagraph; (2) to a governmental
agency having a legitimate interest in obtaining such
information; (3) to Xxxxxxx'x accountants, auditors or other
tax advisors; (4) as required under penalty of law or legal
compulsion; (5) as required or reasonably necessary to
prosecute or defend any legal action or claim; (6) as
necessary to comply with a subpoena or court order, or as
necessitated in discovery proceedings in litigation or
administrative proceedings; and (7) as reasonably necessary
to implement, perform or enforce this Agreement.
10. NO ADMISSION OF LIABILITY. This Agreement shall not be treated as an
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admission of liability or of any wrongdoing by either party, and may
not be offered or admitted in evidence as any such admission.
11. ENTIRE AGREEMENT: BINDING EFFECT. This Agreement constitutes the
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entire agreement between the parties and shall bind and inure to the
benefit of both parties and of each of the Released Parties, and their
respective successors, heirs and legal representatives.
12. SEVERABILITY. In the event a court of competent jurisdiction
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determines that one or more of the clauses of this Agreement are
unenforceable, such clause(s) shall be severed from the Agreement and
the balance of the Agreement shall remain in full force and effect.
13. APPLICABLE LAW. This Agreement is made and entered into and shall be
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governed by and construed in accordance with the laws of the State of
Nebraska.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
this Agreement is signed below by Xxxxxxx.
/s/ Xxxxx X. Xxxxxxx
DATED: February 12, 2002 ------------------------------------------------
Xxxxx X. Xxxxxxx
Commercial Federal Bank,
A Federal Savings Bank
DATED: February 12, 2002 By: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: President and Chief Operating Officer
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