Exhibit 10.1
AGREEMENT AND GENERAL
RELEASE
WHEREAS, First Commonwealth
Financial Corporation (“Employer”) employed Joseph E.
O’Dell (“Employee”); and
WHEREAS, Employer and Employee wish
to resolve any and all matters between them relating to
Employee’s employment and termination from
employment;
NOW, THEREFORE, in consideration of
the mutual undertakings set forth below, this Separation Agreement
and Release (“SAR”) will govern Employee’s
termination from employment with Employer and will resolve, finally
and completely, any and all possible claims and disputes between
Employer and Employee arising from such employment and termination
of employment:
1. Employer’s employment
records will reflect that Employee’s employment with Employer
terminated effective February 28, 2007 (the “Termination
Date”).
2. In exchange for Employee’s
execution of this SAR, Employer agrees to:
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(a)
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pay Employee
Four Hundred Thousand Dollars ($400,000.00), less any and all
legally required withholding and deductions. This amount will be
paid in twelve equal installments beginning in March 2007 and
ending in February 2008, in accordance with Employer’s
regular payroll practices;
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(b)
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pay the
Employee Two Hundred Fifty-Seven Thousand Dollars ($257,000), less
any legally required withholdings and deductions. This amount will
be paid in a single sum payment on March 14, 2008; provided,
however, that if Employee fails to comply with the covenants set
forth in paragraphs 11-12 hereof, as determined by the Employer,
Employee shall be required and hereby agrees to immediately repay
the full amount of $257,000 to the Employer upon written demand
thereof; and
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(c)
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pay Employee Twenty Thousand Four
Hundred and Seventy-Two Dollars and Fifty-Six Cents ($20,472.56),
less any legally required withholdings and deductions. The sum of
Twenty Thousand Four
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Hundred and Seventy-Two Dollars and
Fifty-Six Cents ($20,472.56) will be paid on March 30, 2007,
in accordance with Employer’s regular payroll practices.
Employer will also extend continuation coverage to the Employee, as
required by Section 4980B of the Internal Revenue Code of
1986, as amended (“COBRA”) under the First Commonwealth
Financial Corporation Group Health Plan (“Plan”) on the
terms and conditions mandated by COBRA including the
Employee’s payment of the applicable COBRA premiums. If
Employee exhausts COBRA (completion of the applicable 18-month
COBRA coverage period), the Employer shall provide a conversion
health insurance policy and as permitted under state law
(“Conversion Policy”), beginning in September 2008, and
Employer shall be responsible for the cost of such Conversion
Policy up to Two Thousand Two Hundred Dollars ($2,200.00) per month
in premiums for the Conversion Policy with the Employee required to
pay any remainder in premiums. The Employer will cease to provide
Conversion Policy coverage under this paragraph on the earlier of:
(i) August 2010; (ii) the date the Employee fails to pay
his portion of the Conversion Policy premiums; or (iii) the
date of the Employee’s death.
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Employee acknowledges that he is not
otherwise entitled to receive the foregoing payments and benefits
unless he executes this SAR. Employee agrees that he accepts the
consideration set forth in paragraphs 2 and 4 of this SAR as
adequate and in the full, final, and complete settlement of all
possible claims which he might have as described in
paragraph 3 of this SAR. Employee expressly understands,
agrees and covenants that Employer shall not be required to make
any further payment, for any reason whatsoever and including any
payment of attorneys’ fees or costs, to him or to any person,
attorney, representative, heir or estate, regarding any claim or
right whatsoever which might possibly be asserted by him or on his
behalf. In the event that Employee dies prior to the amounts set
forth in paragraph 2(a) — (b) being paid to him,
Employer agrees to pay any remaining but unpaid amounts to Alice
O’Dell.
3. In exchange for the promises
contained in paragraphs 2 and 4, Employee hereby unconditionally
releases Employer, its affiliates, officers, directors, Board,
employees, shareholders, agents, benefit plans, predecessors,
successors and/or assigns from any and all claims, issues, or
causes of action, known or unknown, as of the Effective Date of
this Agreement (defined in paragraph 16), including those
arising out of Employee’s employment
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with Employer, Employee’s interaction with
Employer’s employees, and Employee’s separation from
employment with Employer, including, but not limited to:
(i) all claims under any possible legal, equitable, contract,
or tort theory, including, but not limited to, any and all claims
for wrongful discharge or for breach of contract and any and all
claims for defamation, slander, invasion of privacy,
misrepresentation, negligence, or intentional or negligent
infliction of emotional distress; (ii) all claims under any
possible statutory theory, including, but not limited to, any and
all claims under Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1991, the Federal Rehabilitation Act, the
Americans with Disabilities Act, the Age Discrimination in
Employment Act, the Older Workers Benefit Protection Act, the
Pregnancy Discrimination Act, the Equal Pay Act, the Pennsylvania
Human Relations Act, and any and all other federal, state, and/or
local employment and other legal claims, and any other civil rights
law, including any federal, state, or local law, statute,
ordinance, regulation, or executive order prohibiting employment
discrimination based on age, sex, sexual orientation, religion,
race, color, handicap, disability, retaliation, or any other
characteristic proscribed by law, or any other legal claims, such
as whistleblower claims, wrongful discharge claims, and claims for
possible attorneys’ fees and costs; (iii) all claims
under the Employee Retirement Income Security Act of 1974, all
claims under the Wage Payment and Collection Law, and all claims
under the Family and Medical Leave Act; and (iv) all claims
for the fees, costs, and expenses of any and all attorneys who have
at any time or are now representing Employee in connection with
this SAR or in connection with any matter released by Employee.
Employee acknowledges and covenants that he has not sustained any
work-related injury or illness during his employment with Employer.
Employee acknowledges that he has filed no charges, complaints, or
other claims against Employer. Employee further understands,
covenants, and agrees that he will not enter suit or initiate any
proceedings of any kind against Employer or any other person or
entity on any of the claims mentioned above. To the extent,
however, that any entity or person sues on Employee’s behalf
concerning any possible claim, Employee agrees that this SAR has
fully and finally satisfied any and all possible claims, and
Employee agrees to waive and otherwise relinquish eligibility for
any recovery beyond what he has received in this SAR, even if he
participates or otherwise assists in such litigation.
4. Employer will offer Employee the
opportunity to perform services for Employer pursuant to the
Independent Contractor Services Agreement attached hereto as
Attachment A.
5. Employee does not waive, nor
shall this SAR be construed to waive, any right which is not
subject to waiver as a matter of law (such as a claim for
workers’
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compensation benefits), claims for vested
benefits under, for example, any qualified retirement plan, or any
claim or right which arises after the Effective Date of this
Release.
6. Employee understands and agrees
that Employer, including any successor or affiliate of Employer,
will not be obligated in any way to provide him with future
employment, compensation, or benefits in any amount or for any
reason, and Employee agrees not to seek any such employment,
reemployment, compensation or benefits.
7. Employee expressly understands
and agrees that Employer expressly denies that it harmed him or
treated him unlawfully, unfairly or discriminatorily in any way, or
that it retaliated against him. Neither this SAR nor the
implementation thereof shall be construed to be, or shall be,
admissible in any proceedings as evidence of an admission by
Employer of any violation of or failure to comply with any federal,
state or local law, ordinance, agreement, rule, regulation, or
order. The preceding sentence does not preclude introduction of
this SAR by either party to establish that the other’s claims
were resolved and released according to the terms of this SAR or by
Employer or Employee to establish any breach of this
SAR.
8. Employee is hereby advised to
consult with an attorney prior to executing this SAR to help him
fully understand and appreciate its legal effect. Employee swears
that he has carefully read the foregoing release, that he
understands completely its contents, that he understands the
significance and consequences of signing it, and that he has had a
full and fair opportunity to have his attorney explain all of its
contents and ramifications. Employee expressly warrants that he has
been afforded the opportunity to consider this SAR for a period of
twenty-one (21) calendar days. Employee further swears that he
has agreed to and signed this SAR knowingly and voluntarily of his
own free will, act, and deed, and for full and sufficient
consideration.
9. Employee shall have a period of
seven (7) days following his execution of this SAR to revoke
it (“Revocation Period”), and this SAR shall not be
effective or enforceable prior to the expiration of the Revocation
Period. Revocation must be made by delivering, within the
Revocation Period, a notice to Thaddeus Clements, Senior Vice
President, P.O. Box 400, Indiana, Pennsylvania 15701. The
revocation of this SAR by Employee will automatically revoke the
terms described in paragraphs 2 and 4 of this SAR. If Employee
does not advise Employer in writing that he revokes this SAR within
the Revocation Period, the SAR shall become effective and be
forever enforceable. Employee understands that if he revokes this
SAR, he will not receive the sums or other consideration set forth
in paragraphs 2 and 4 of this SAR.
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This SAR shall not
become effective or enforceable until at least the eighth (8
th
) day after
the date that Employee signs the SAR.
10. By entering into this SAR,
Employer expressly denies any unlawful or unfair
conduct.
11. Employee agrees that for the
period from February 28, 2007 to August 2010, Employee will
not, for himself, as an agent, employee, contractor or owner, or on
behalf of another person or entity, directly or indirectly, engage
in any “Prohibited Position” with any “Competing
Business.” For purposes of this SAR, “Prohibited
Position” shall mean any position, whether as principal,
agent, officer, director, employee, consultant, shareholder, or
otherwise: (i) where Employee will be engaged in the
management, sale, development, or marketing of products or services
of the type provided by the Employer; and (ii) during
employment with Employer, Employee was privy to or given access to
proprietary and/or confidential business information of the
Employer concerning the Employer’s management, strategy,
performance, sale, development or marketing of that type of product
or service and/or was involved in maintaining the Employer’s
customer relationships or goodwill; “Competing
Business” shall mean any person, corporation or other entity
which engages in the marketing and/or sale of: (i) retail
banking products in the Commonwealth of Pennsylvania, including,
for example, personal and business accounts, private banking,
business banking, loans, lines of credit, mortgages, and other
investment or financial products; or (ii) any other product or
service of the Employer, currently and in the future, in the
Commonwealth of Pennsylvania, in which the Employee had
involvement, and/or about which Employee learned of, and/or may
have acquired any knowledge about, while employed by the Company.
Employee also agrees not to enter into, consult about, or become
involved with any transactions that he learned and/or became aware
of through his employment with Employer. Employee acknowledges that
this restriction is properly limited so that it will not interfere
with his ability to earn a livelihood and that this restriction is
reasonable and necessary to protect Employer’s legitimate
business interest, including the protection of its confidential and
trade secret information. In exchange for the consideration set
forth in paragraphs 2 and 4, Employee agrees to be bound by the
terms of this paragraph 11. Employee’s provision of services
to Employer pursuant to the Independent Contractor Services
Agreement with Employer will not violate the terms of paragraph 11.
The foregoing covenants shall not be deemed to prohibit Employee
from acquiring as an investment not more than five percent
(5%) of the capital stock of a Competing Business, whose stock
is traded on a national securities exchange or through an automated
quotation system of a registered securities association.
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12. a. Except as otherwise required
by law, Employee agrees to refrain from directly or indirectly
engaging in publicity or any other action or activity that reflects
adversely upon Employer, its Board, officers