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CONSULTING AGREEMENT, SEPARATION AGREEMENT, WAIVER AND
RELEASE
This
CONSULTING AGREEMENT,
SEPARATION AGREEMENT, WAIVER AND RELEASE
(“Separation
Agreement”) is between GREATER BUFFALO SAVINGS BANK
(“Bank”) and LAWRENCE SCHIAVI (“Executive”)
(collectively, the “Parties”).
WHEREAS ,
Executive and Bank have previously entered into an Employment
Agreement dated as of January 1, 2007 (“Employment
Agreement);
WHEREAS ,
Executive and Bank wish to set forth their respective rights and
obligations arising from Executive’s separation from Bank;
and
WHEREAS ,
Bank wishes to obtain from Executive assistance in the transition
period following Executive’s separation from Bank and
Executive is willing provide such transition services as a
consultant upon the terms and conditions set forth in this
Separation Agreement.:
NOW, THEREFORE ,
in consideration of the mutual promises, benefits and covenants
herein contained, Bank and Executive hereby agree as
follows:
1.
Employment Separation .
(a)
Executive acknowledges and agrees that Executive’s
resignation from employment and service as Executive Vice President
- Mortgage Banking Division of Bank is effective as of September
27, 2007 at 5:00 p.m. (“Separation Date”).
(b)
From and after the Separation Date, except as otherwise set forth
in this Separation Agreement, Executive shall not be entitled to
any further compensation or monies from Bank or to receive any
benefits or to participate in any benefit plan or program of Bank.
Executive acknowledges that, as of the date of this Separation
Agreement, except as set forth herein, Executive has received all
wages, benefits and payments of any kind to which Executive may be
entitled.
(c)
This Separation Agreement shall not compromise any right Executive
may have to group health continuation coverage under Sections
601
et seq .
of ERISA (“COBRA”) nor shall it compromise any right to
vested benefits accumulated under the Bank’s 401(k) Plan
subject to the terms of the plan(s).
2.
Medical Benefits .
Provided Executive (i) signs this Separation Agreement, and (ii)
does not revoke it pursuant to Section 18 of this Separation
Agreement, Executive will, for the
period
beginning on the Separation Date and ending on December 31, 2007
(“Benefit Continuation Period”), be entitled to receive
continued coverage under Bank’s group medical program in
which he participates as of the Separation Date. During the Benefit
Continuation Period, Executive’s cost of group medical plan
coverage will be the same as the amount paid by other employees of
Bank for participation in said Bank-sponsored benefit programs.
With respect to Bank’s group medical plan, the Parties agree
that the Separation Date will be the date of Executive’s
“qualifying event” for purposes of Executive’s
continuation coverage rights under COBRA and that the COBRA
coverage period will commence on the Separation Date. As a
condition of receipt of benefits under this paragraph 2(b)(i),
Executive must timely elect continuation coverage under
COBRA.
Notwithstanding
the foregoing, in the event Executive becomes reemployed with
another entity during the Benefit Continuation Period,
Bank’s provision of coverage and payment of the benefits
described in this Section will cease (even if Executive is
entitled under COBRA to continue to participate in
Bank’s group medical plan at Executive’s sole
cost). Executive shall immediately provide notice to Bank if
Executive becomes reemployed with another entity during the
Benefit Continuation Period.
3.
Consulting Services .
Executive will provide consulting services to Bank concerning the
operations and business of Bank’s mortgage business as may be
reasonably requested from time to time by Bank’s President,
Chief Financial Officer, or Board of Directors (“Consulting
Services”). Bank hereby agrees to engage Executive, and
Executive hereby accepts such engagement to provide the Consulting
Services, for the period beginning on the Separation Date and
continuing for a period ending on December 31, 2007
(“Consulting Period”). Bank and Executive do hereby
acknowledge that the relationship between Bank and Executive during
the Consulting Period shall be that of an independent contractor
and that Executive shall not be treated as an employee for any
purpose during that period. The Executive’s work schedule and
location to perform such duties shall be established by mutual
agreement of the parties.
4.
Consulting Compensation .
In consideration of the performance of the Consulting Services
hereunder, Executive will receive the following
:
(a)
From and after the Separation Date, Bank shall pay Executive seven
consecutive equal biweekly payments of $ 7,692.31 commencing on
October 4, 2007 and ending on December 27, 2007.
(b)
A payment of $ 171,153.83 on January 10, 2008.
(c)
During the Consulting Period, Bank shall provide and make available
to Executive reasonable office space and secretarial and other
related support services for Executive's use at the Bank’s
principal office.
If
Executive fails to perform and provide any reasonably
requested Consulting Services during the Consulting Period,
Executive will not be entitled to any compensation provided in
clauses (a) and (b) above, and any payments previously made
under such clauses will be promptly returned by Executive to
Bank.
5.
Release .
(a)
For and in consideration of the promises and other valuable
consideration paid to Executive pursuant to this Separation
Agreement, Executive, for himself and for Executive’s heirs,
executors, successors and assigns (collectively, “Executive
Releasors”), hereby releases and discharges Bank and any and
all of its parents, subsidiaries, divisions, affiliated entities,
predecessors, successors and assigns, and all of their Executive
benefit plans, funds, and any of the foregoing entities’ past
or present officers, directors, employees, stockholders, trustees,
administrators, attorneys, accountants and agents (collectively
“Bank Releasees”) from any and all claims, demands,
causes of action, and liabilities of any kind whatsoever, whether
known or unknown, which the Executive Releasors ever had, now have
or may hereafter have against any or all Bank Releasees from the
beginning of the world through the date of this Separation
Agreement by reason of any actual or alleged act, omission,
transaction, practice, conduct, occurrence, or other matter, except
for those rights expressly set forth or reserved in this Separation
Agreement. It is the understanding and agreement of the Parties
that the release provided for by this sub-paragraph shall be a
general release in all respects.
(b)
Without limiting the generality or force or effect of Section 5(a)
above, or characterizing the nature of the Executive
Releasors’ claims, this document releases the Bank Releasees
from any and all claims arising, directly or indirectly, from (i)
Executive’s employment with Bank; (ii) the terms and
conditions of such employment; (iii) the termination of
Executive’s employment with Bank; (iv) the negotiation and
entry into this Separation Agreement and/or the terms of this
Separation Agreement; (v) any federal, state or local statute, or
court decision including, but not limited to, claims under the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act
of 1964, the Americans with Disabilities Act, the Employee
Retirement and Income Security Act, the Sarbanes-Oxley Act of 2002,
the New York Human Rights Law, N.Y. Exec. Law Art. 15; (vi) any and
all claims for breach of contract; (vii) any and all claims for
lost wages, bonuses, back pay, front pay, employee benefits,
including severance pay, or for damages or injury of any type
whatsoever, including, but not limited to, defamation, injury to
reputation, intentional or negligent infliction of emotional
distress, (whether arising by virtue of statute or common law, and
whether based upon negligent or willful actions or omissions); and
(viii) any and all claims for compensatory or punitive damages,
attorneys’ fees, costs and disbursements which the Executive
Releasors ever had, now have or hereafter can, shall or may have
against the Bank Releasees for, upon or by reason of any actual or
alleged act, omission, transaction, practice, conduct, occurrence
or other matter up to and including the date of the execution of
this Separation Agreement by Executive, except for those rights
specifically provided for or expressly reserved by Executive in
this Separation Agreement and any claim necessary to enforce the
terms of this Separation Agreement.
(c)
Executive represents that Executive has not filed or permitted to
be filed against Bank or any Bank Releasees, individually or
collectively, any lawsuits or charges (including any arbitrations),
and covenants and agrees that Executive will not do so at any time
hereafter with respect to the subject matter of this Separation
Agreement and claims released pursuant to this Separation
Agreement, except as otherwise provided in this Separation
Agreement. Executive acknowledges that Executive fully understands
and agrees that, to the fullest extent permitted by law, this
Separation Agreement shall operate as a complete defense to any
claim or entitlement which hereafter may be asserted by Executive
or any other person acting on Executive’s behalf, against
Bank Releasee(s) for or on account of any matter or thing
whatsoever arising out of or in any way based upon the
circumstances, facts, and events related to Executive’s
employment and separation from employment or to any claim made by
Executive against any Bank Releasee(s) arising from such
circumstances, facts, and events. However, nothing in this
Separation Agreement shall be construed to prohibit Executive from
filing a charge (including a challenge to the validity of this
Agreement) with or participating in any investigation or proceeding
conducted by the EEOC. Notwithstanding the preceding sentence,
Executive agrees to waive Executive’s right to recover
monetary damages in any charge or other proceeding of any kind
filed by Executive or anyone else on Executive’s behalf to
the fullest extent allowed by law.
(d)
Executive acknowledges and agrees that the consideration to be
provided to Executive, as set forth above in Sections 2 and 4 of
this Separation Agreement: (i) provides items of value to which
Executive would not otherwise be entitled in the absence of this
Separation Agreement; (ii) fully and completely settles all
claims
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