EXHIBIT 10.19
AGREEMENT AND GENERAL RELEASE
WITH ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
AGREEMENT AND GENERAL RELEASE
WITH ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
This Agreement and General Release ("Agreement") is entered into effective
as of October 13, 2000, by and between WAYPOINT FINANCIAL CORP., a Pennsylvania
stock corporation (the "Company") and the holding company of Waypoint Bank (the
"Bank") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("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 ▇▇▇▇▇▇ Financial,
M.H.C., ▇▇▇▇▇▇ Financial, Inc., New ▇▇▇▇▇▇ Financial, Inc. (which has changed
its name to Waypoint Financial Corp.), ▇▇▇▇▇▇ 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 salary continuation benefit, 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
October 13, 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:
1. 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 ▇▇▇▇▇▇ 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.
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Chairman and Chief Executive
Officer
WITNESS: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
RETIREMENT AGREEMENT AND GENERAL RELEASE
This Retirement Agreement and General Release is made and entered into on
this 13th day of October, 2000, by and between ▇▇▇▇▇▇ Financial, M.H.C., ▇▇▇▇▇▇
Financial, Inc., ▇▇▇▇▇▇ Savings Bank, and New ▇▇▇▇▇▇ Financial, Inc., its
successors, assigns, subsidiaries, and affiliates (collectively "▇▇▇▇▇▇") and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Executive").
WHEREAS, Executive has been employed by ▇▇▇▇▇▇ since January 11, 1988, and
is currently employed as Executive Vice President, Chief Financial Officer of
▇▇▇▇▇▇ Savings Bank; and
WHEREAS, Executive has indicated his desire to retire; and
WHEREAS, in recognition of the valuable services and contributions to
▇▇▇▇▇▇ made by Executive, ▇▇▇▇▇▇ is willing to provide certain salary
continuation benefits to Executive limited period following 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 ▇▇▇▇▇▇ hereby agree that Executive will retire
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(terminate his employment) with ▇▇▇▇▇▇ effective December 31, 2000 ("Retirement
Provided that Executive has not revoked this Agreement, once executed by him,
within the revocation period set forth in Paragraph 10(f), Executive's last day
of employment with ▇▇▇▇▇▇ will be his Retirement Date, and following such date
▇▇▇▇▇▇ will pay or commence paying to Executive the benefits described in the
following Paragraphs.
Salary Continuation and Continuation of Health Benefits. Commencing with
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the first payroll date following Executive's Retirement Date, ▇▇▇▇▇▇ agrees to
pay to Executive a monthly salary continuation benefit equal to $15,300. The
monthly salary continuation benefit described above shall be paid by Hams to
Executive over a term of thirty-six (36) months. For the period commencing
January 1, 2001 and ending July 31, 2001, ▇▇▇▇▇▇ also agrees to pay a percentage
of Executive's health plan continuation coverage ("COBRA") premium, if Executive
elects COBRA, in an amount equal to the employer paid percentage then paid by
▇▇▇▇▇▇ for active employees under its group health plan.
3. 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 ▇▇▇▇▇▇ must meet minimum
thresholds for ▇▇▇ and EPS, as set forth in the ▇▇▇▇▇▇ 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.
4. Automobile. As soon as administratively feasible after Executive's
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Retirement Date, ▇▇▇▇▇▇ shall cause title to the automobile currently provided
to Executive by ▇▇▇▇▇▇ to be transferred to Executive.
Life Insurance. ▇▇▇▇▇▇ confirms to Executive that Executive has the option
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to convert existing life insurance coverages maintained by ▇▇▇▇▇▇ for executive
for a period of thirty-one (31) days following Executive's Retirement Date. To
the extent Executive does not elect to covert said life insurance coverages to
private policy coverages, all life insurance maintained by ▇▇▇▇▇▇ covering
Executive shall cease as of Executive's Retirement Date.
6. Retirement Plans. Executive's- participation in the qualified retirement
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plans maintained by ▇▇▇▇▇▇ shall cease as of his Retirement Date. Provided
however, Executive may elect to commence distributions from the retirement plans
as of his Retirement Date or as of any date thereafter subject however to the
required minimum distribution rules and any other qualified plan rules
applicable to the ▇▇▇▇▇▇ qualified retirement plans.
7. 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 ▇▇▇▇▇▇' group term life
insurance plan.
8. Tax Withholding. ▇▇▇▇▇▇ 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.
9. Non-Competition/Non-Solicitation Confidential Information. In
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consideration of ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇; 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ or
transaction involving ▇▇▇▇▇▇. 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 ▇▇▇▇▇▇, including,
but not limited to, the names and addresses of customers of
▇▇▇▇▇▇, as they may have existed from time to time or of any of
▇▇▇▇▇▇' 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 ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ for such breach. Accordingly,
Executive agrees that, in the event of a breach or threatened breach by
Executive of this Paragraph 9, ▇▇▇▇▇▇, in addition to and not in limitation of
any other rights, remedies or damages available to ▇▇▇▇▇▇ 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.
10. Release of Claims. In consideration of the benefits to be provided by
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▇▇▇▇▇▇ 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
▇▇▇▇▇▇, of and from any and all claims, known and unknown, which Executive, his
heirs, executors, administrators, successors, and assigns have or may have
against ▇▇▇▇▇▇ 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; ▇▇.▇▇. 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 ▇▇▇▇▇▇,
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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 10, Executive agrees that ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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.
11. Property. Executive shall, no later than his Retirement Date, return to
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▇▇▇▇▇▇ all property and documents of Hams then in his possession.
12. Severability. Executive and ▇▇▇▇▇▇ 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.
13. Construction. This Agreement shall be construed in accordance with the
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laws of the Commonwealth of Pennsylvania.
14. 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.
15. 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 ▇▇▇▇▇▇. 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.
16. Adjustment. Notwithstanding the preceding paragraphs of this Agreement,
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in the event that the aggregate payments or benefits to be made or afforded to
Executive by ▇▇▇▇▇▇ would be deemed to include an "excess parachute payment"
under Section 2806 of the Internal Revenue Code of 1986 (the "Code") or any
successor thereto, and, if such benefits were reduced to an amount (the
"Non-Triggering Amount"), the value of which is one dollar ($1.00) less than an
amount equal to three (3) times Executive's "base amount" as determined in
accordance with said Section 2806, and the Non-Triggering Amount would be
greater than the aggregate value of the benefits (without such reduction) minus
the amount of tax required to be paid by the Executive thereon by Section 4999
of the Code, then benefits under this Agreement shall be reduced to the
Non-Triggering Amount.
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: ▇▇▇▇▇▇ FINANCIAL, M.H.C.
By:
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Secretary
(SEAL)
ATTEST: ▇▇▇▇▇▇ SAVINGS BANK
By:
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Secretary
(SEAL)
ATTEST: NEW ▇▇▇▇▇▇ FINANCIAL, INC.
By:
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Secretary
(SEAL)
WITNESS: EXECUTIVE
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇