Date of Notification: November 3, 2004
Notice to Employee: This is a legal document. You are advised to
consult with an attorney prior to signing this agreement.
SEPARATION AGREEMENT & RELEASE
This is an Agreement between First National Bank of Xxxxxxx County and
its affiliates (the "Bank") and Xxxxx X. Xxxxxxx (the "Employee").
WHEREAS the Employee has been employed by the Bank as Executive Vice
President, Business Banking Division;
WHEREAS the Employee and the Bank mutually desire to amicably terminate
Employee's employment with the Bank;
WHEREAS the Employee and the Bank intend the terms and conditions of
this Agreement to govern all issues related to the Employee's employment with
and separation from the Bank;
NOW, THEREFORE, in consideration of the covenants and mutual promises
herein contained, and intending to be legally bound hereby, the Employee and the
Bank agree as follows:
1. Severance. Employee's last day in the office will be November 3,
2004 ("Separation Date"), and Employee shall be removed from
active payroll on that day. In consideration, the Bank will pay
Employee severance payments on the Bank's regular payroll
intervals which, for purposes of this Separation Agreement only,
shall be based upon an annual salary and benefits contributions
(including medical, dental, bank paid group term life,
supplemental retirement plan and 401(k)) in the total amount of
$164,708, minus all payroll deductions required by law or
authorized by the Employee until the earlier of November 2, 2005
or a violation of Paragraph 9 of this agreement.
2. Outplacement. Bank agrees to provide outplacement services which
are provided by the Bank to promote its interest. Payment will be
made by the Bank directly to the outplacement agency.
3. COBRA. The Bank agrees to reimburse Employee for payments made by
Employee for COBRA benefits for twelve months after the Separation
Date. The COBRA payment reimbursement made by the Bank shall be in
an amount equal to the amount the Bank typically contributes
toward the monthly healthcare premiums on behalf of any full-time
employee for the same Plan and level of coverage currently
provided to Employee. Employee agrees that Employee is responsible
for payment for the balance of any premiums due for COBRA benefits
during the twelve months following the Separation Date. If
Employee accepts employment with another employer who provides
similar coverage, on terms similar to those provided to Employee
by the Bank during Employee's employment, Employee agrees to
accept the insurance available through Employee's new employer and
the obligation of the Bank to reimburse the employee for the COBRA
payment will cease.
4. Bank-Paid Group Term Life Insurance. Xxxx agrees to transfer
Employee's group term life insurance policy to an individual
policy per the terms of the current group term life contract and
will pay the employee's group term premium on the transferred
policy until the Separation Date. Thereafter, Employee may elect
to continue the term life insurance policy on an individual basis
by paying the premium himself. The annual conversion amount of
approximately $6,631 has been included in the severance total of
$164,708. To obtain individual coverage, the employee must submit
a completed insurance application and first premium payment to the
insurance carrier within 31 days of the Separation Date or
November 3, 2004.
The Employee may also convert his voluntary life insurance to an
individual policy and continue to pay the premium. The Employee
will need to contact the insurance carrier to convert the policy.
5. Vacation. On or after the Separation Date, the Bank will pay
Employee in one lump sum all accrued, but not yet taken, vacation
time to which he is then entitled under the Bank's Vacation Policy
at $64.70/hr. as of November 3, 2004. Employee shall not receive
any other payments for vacations or holidays.
6. Car Allowance. The Employee's monthly car allowance of $700 per
month will continue for twelve months from the Effective Date.
This amount is in addition to the severance total of $164,708
referred to in Paragraph 1.
7. Stock Options. If requested, Bank will provide a short-term bridge
loan to Employee, on terms acceptable to Bank, for the purpose of
allowing him to exercise his rights to exercise stock options in
which he is vested according to the terms of the current stock
option program and Bank confirms that sufficient stock exists to
enable Employee to exercise his stock options.
8. Retirement Plans. Employee understands that he will receive
distributions to which he is entitled, at such times and in the
manner provided, under the provisions of the First National Bank
of Xxxxxxx County Retirement Savings Plan and the First National
Bank of Xxxxxxx County Executive Officer Supplemental Benefit
Retirement Plan ("SBRP") in accordance with the terms of those
plans and applicable laws. With the exception of benefits in which
he is vested, the Employee understands that after the Separation
Date, he will no longer be eligible to participate in any of
Bank's retirement and pension plans, including that he will no
longer be able to make contributions to any of the Bank's
retirement and pension plans, receive SBRP contributions from the
Bank, defer his own pay into the SBRP, or receive any bonus
payments that may be awarded to Bank employees. The amounts of
$4,199 and $12,220 reflecting the respective 2004 values of your
SBRP and 401(k) annual contribution made by the Bank on your
behalf have been included in the severance total of $164,708.
9. Covenant Not to Compete or Solicit. Employee shall not, during the
twelve months following the Separation Date, for himself, or on
behalf of any other person, firm, partnership, corporation, or
other entity, directly or indirectly engage in any banking
business or provide any banking services or services offered by a
bank to customers in Xxxxxxx County. The Employee agrees that for
a period of twelve (12) months after the Separation Date, he will
not, without prior written approval from the President of the
Bank, directly or indirectly solicit any person who is an employee
of the Bank to terminate his/her relationship with the Bank.
10. Employee Representations. Employee hereby represents and
acknowledges to the Bank that:
(a) HE HAS BEEN ADVISED, IN WRITING, TO READ THIS ENTIRE AGREEMENT
CAREFULLY, AND TO CONSULT WITH AN ATTORNEY OF HIS CHOICE PRIOR TO
SIGNING THIS AGREEMENT;
(b) he has had twenty-one (21) days to consider the waiver of his
rights under the Age Discrimination in Employment Act of 1967, as
amended ("ADEA") prior to signing this Agreement;
(c) he has been advised, in writing, that he has a full seven (7)
days after he signs this Agreement to revoke it, and that this
Agreement will not become effective until the seven (7) day
revocation period has run and he has notified the Bank, in
writing, that he has elected not to revoke this Agreement;
(d) the consideration provided him under this Agreement is
sufficient to support the releases provided by him under this
Agreement;
(e) he understands and agrees that he will receive separation pay
and benefits specified above in exchange for signing this
Agreement, and that he would not have received such separation pay
and benefits if he had not signed this Agreement;
(f) he has disclosed to the Bank any information in his possession
concerning any conduct involving the Bank or its affiliates that
may be unlawful or violates Bank Policy in any respect;
(g) he does not suffer from nor have knowledge of any work-related
injury or illness suffered during or exacerbated by his employment
with the Bank and that he has an earning capacity that is not
limited by any work-related injury or illness; and
(h) he has not filed any charges, claims or lawsuits against the
Bank involving any aspect of his employment which have not been
terminated as of the date of this Agreement.
Employee understands that the Bank regards the representations
made by him as material and that the Bank is relying on these
representations in entering into this Agreement.
11. Effective Date of the Agreement. Employee shall have seven (7)
days from the date he signs this Agreement to revoke his consent
to the waiver of his rights under the ADEA. Such revocation shall
be in writing addressed and delivered to the Bank official
executing this Agreement on behalf of the Bank which action shall
revoke this Agreement. If Employee revokes this Agreement, all of
its provisions shall be void and unenforceable. If Employee does
not revoke his consent, the Agreement will take effect on the day
after the end of this seven day revocation period (the "Effective
Date").
12. General Release. The Employee and his heirs, assigns, and agents
release, waive, and discharge the Bank Released Parties as defined
below from each and every claim, action or right of any sort,
known or unknown, arising on or before the Effective Date.
(a) The foregoing release includes, but is not limited to, any and
all claims, liabilities, demands, and causes of action known or
unknown, fixed or contingent, which the Employee may have or claim
to have against the Bank or the other Released Parties including,
without limitation, claims arising out of or in any way connected
to Employee's employment or termination of employment with the
Bank. By this Agreement, the Employee knowingly and voluntarily
waives any claims under any and all laws which provide legal
restrictions on Bank's right to terminate Employee's employment or
affect the terms and conditions of Employee's employment,
including claims under any federal, state, or other governmental
statute, regulation, ordinance or other provision, including,
without limitation, claims arising under: (1) Title VII of the
Civil Rights Act of 1964 and the Civil Rights Act of 1991; (2) the
Americans with Disabilities Act; (3) the Pennsylvania Human
Relations Act; (4) the Age Discrimination in Employment Act; (5)
the Older Workers Benefit Protection Act; (6) the Employee
Retirement Income Security Act of 1974, as amended, ("ERISA"); (7)
the Family and Medical Leave Act; (8) Section 1981 through 1988 of
Title 42 U.S.C.; (9) any other federal, state or local law,
regulation, ordinance or other provision of a similar nature to
any of the foregoing; or (10) any other provision providing for
relief by the Employee against Bank or the other Released Parties,
as well as any amendments to the foregoing statutes, regulations,
ordinances or other provisions. The Employee also waives any
common law claims against the Bank and the other Released Parties,
any claim for personal injury, wrongful discharge, negligence,
infliction of emotional distress, wrongful hiring or retention,
breach of contract, violation of public policy, whistleblower
claims, retaliation or any form of tort, and any and all claims
for counsel fees and costs attendant thereto.
(b) The Employee represents that he understands the foregoing
release, that rights and claims under the Age Discrimination in
Employment Act of 1967, as amended, are among the rights and
claims against the Bank he is releasing, and that he understands
that he is not releasing any rights or claims arising after the
Effective Date. The Employee also understands that he is not
waiving any rights or claims that cannot be legally waived.
Subject to the foregoing, this Agreement shall operate as a
general release of any and all claims to the fullest extent of
applicable law.
(c) The Employee further agrees never to sue the Bank or cause the
Bank to be sued regarding any matter within the scope of the above
release. If the Employee violates this release by suing the Bank
or causing the Bank to be sued, the Employee agrees to pay all
costs and expenses of defending against the suit incurred by the
Bank, including reasonable attorneys' fees except to the extent
that paying such costs and expenses is prohibited by law or would
result in the invalidation of the foregoing release.
(d) Released Parties are the Bank, all current and former parents,
subsidiaries, related companies, partnerships or joint ventures,
and, with respect to each of them, their predecessors and
successors; and, with respect to each such entity, all of its
past, present, and future employees, officers, directors,
stockholders, owners, representatives, assigns, attorneys, agents,
insurers, employee benefit programs (and the trustees,
administrators, fiduciaries and insurers of such programs), and
any other person acting by, through, under or in concert with any
of the persons or entities listed in this paragraph, and their
successors.
13. Breach by Employee. The Bank's obligations to the Employee after
the Effective Date are contingent on
Employee's obligations under this Agreement. Should the Bank have
knowledge that Employee has committed a material breach of this
Agreement, the Bank shall first notify Employee in writing of the
Bank's reason(s) for its belief. The Bank shall give Employee
thirty (30) days to cure any alleged material breach. Any uncured
material breach of this Agreement by the Employee will result in
the immediate cancellation of the Bank's obligations under this
Agreement and of any benefits that have been granted to the
Employee by the terms of this Agreement except to the extent that
such cancellation is prohibited by law or would result in the
invalidation of the foregoing release.
14. Confidential Information. The Employee acknowledges that, in
connection with his employment at the Bank, he obtained knowledge
about confidential and proprietary information of the Bank,
including but not limited to privileged and confidential matters
relating to the Bank's legal matters, lists of customers,
technical information about Bank products, and strategic plans of
the Bank's business (hereinafter the "Information"). Employee
agrees not to use, publish or otherwise disclose any Information
to others, including but not limited to a subsequent employer or
competitor of the Bank, either prior to or following the Effective
Date. If the Employee has any question regarding what data or
information would be considered by the Bank to be information
subject to this provision, the Employee agrees to contact the
President of the Bank in writing for clarification.
15. Future Employment. The Bank is not obligated to offer employment
to the Employee (or to accept services or the performance of work
from the Employee directly or indirectly) now or in the future.
Employee agrees never to seek employment with the Bank or any of
its affiliated companies. Notwithstanding the foregoing, the Bank
and Employee may enter into an employment or other agreement for
services by employee, which agreement shall not be a breach of
this Separation Agreement.
16. Return of Bank Property. The Employee agrees that he has returned
all property of the bank, including, but not limited to, his cell
phone, his Bank-owned credit card, all Bank files, all keys
including those to Bank-owned real estate and property. The
Employee further agrees that as of the Effective Date, he will
have no outstanding balance on his corporate credit card for which
appropriate accounting has not been submitted.
17. Confidentiality. The Employee shall keep strictly confidential all
the terms and conditions, including amounts, in this Agreement and
shall not disclose them to any person other than the Employee's
spouse, the Employee's legal or financial advisor, or U.S.
governmental officials who seek such information in the course of
their official duties, unless compelled by law to do so. If a
person not a party to this Agreement requests or demands, by
subpoena or otherwise, that the Employee disclose or produce this
Agreement or any terms or conditions thereof, the Employee shall
immediately 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 request or subpoena.
18. Entire Agreement. This Agreement sets forth the entire agreement
and understanding between the parties hereto and may be changed
only with the written consent of both parties and only if both
parties make express reference to this Agreement. The parties have
not relied on any oral statements that are not included in this
Agreement. Except as otherwise provided herein, this Agreement
supersedes all prior agreements and understandings concerning the
subject matter of this Agreement. Any modifications to this
Agreement must be in writing and signed by Employee and an
authorized employee or agent of the Bank.
19. Severability of Provisions. In the event that any provision in
this Agreement is determined to be legally invalid or
unenforceable by any court of competent jurisdiction, and cannot
be modified to be enforceable, the affected provision shall be
stricken from the Agreement, and the remaining terms of the
Agreement and its enforceability shall remain unaffected.
20. Applicable Law. This Agreement shall be construed, interpreted and
applied in accordance with the law of the Commonwealth of
Pennsylvania.
21. Successors and Assigns. This Agreement shall extend to, be binding
upon, and inure to the benefit of the Bank, Employee and their
respective successors, heirs, and assigns.
22. Counterparts. This Agreement may be executed by counterpart, each
of which when so executed shall be deemed to be an original, and
all of which when taken together shall constitute one and the same
agreement.
23. Notices/Requests. Any notice or request under this Agreement shall
be in writing, and sent to the other party via Federal Express or
U.S. Postal Service certified mail with return receipt, addressed
as follows:
(a) If to Employee:
Xxxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
000-000-0000
(Employee to fill in preferred contact information)
(b) If to Employer:
Xxxxx X. Xxxxx, President
First National Bank of Xxxxxxx County
0 Xxxxx Xxxx Xxxxxx
P. O. Box 523 West Chester, PA 19381
with a copy to:
Xxxxxxx X. Xxxxxxxxx, Esquire
XxxXxxxx Xxxxxx, Ltd.
00 Xxxx Xxxxx Xxxxxx - P. O. Box 660
West Chester, PA 19381-0660
Phone: (000) 000-0000
Fax: (000) 000-0000
I acknowledge that I understand the above agreement, which includes the
release of all claims. I understand that I am waiving unknown claims and I am
doing so knowingly and voluntarily, without any coercion or duress.
EMPLOYEE FIRST NATIONAL BANK
OF XXXXXXX COUNTY
/s/ Xxxxx X. Xxxxxxx By: /s/Xxxxx X. Xxxxx
---------------------- ------------------------
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxx
Date: _________________________ Date: _____________________
