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AGREEMENT AND GENERAL RELEASE

Release Agreement

AGREEMENT AND GENERAL RELEASE | Document Parties: First Commonwealth Financial Corporation | Joseph E. O?Dell You are currently viewing:
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First Commonwealth Financial Corporation | Joseph E. O?Dell

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Title: AGREEMENT AND GENERAL RELEASE
Governing Law: Pennsylvania     Date: 5/9/2007

AGREEMENT AND GENERAL RELEASE, Parties: first commonwealth financial corporation , joseph e. o?dell
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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:

 

 

(a)

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;

 

 

(b)

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

 

 

(c)

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


 

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.

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.

 

-4-


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


 
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