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SEPARATION AGREEMENT, WAIVER AND
RELEASE
This
SEPARATION AGREEMENT, WAIVER AND RELEASE
(“Separation
Agreement”) is between GREAT LAKES BANCORP, INC. and GREATER
BUFFALO SAVINGS BANK (collectively, the “Bank”) and
MARYLOU BOROWIAK (“Executive”) (collectively, the
“Parties”).
WHEREAS ,
Executive and Bank wish to set forth their respective rights and
obligations arising from Executive’s separation from
Bank;
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 of
Great Lakes Bancorp, Inc. and Executive Vice President and
Chief Retail Banking Officer of Greater Buffalo Savings Bank
is effective as of August 22, 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.
Severance Compensation and Benefits .
Provided Executive (i) signs this Separation Agreement, and (ii)
does not revoke it pursuant to Section 16 of this Separation
Agreement, Executive shall be entitled to severance compensation
and benefits as follows:
(a)
From
and after the Separation Date, Bank shall pay Executive
thirteen
consecutive
equal biweekly payments of $4,557.69 and a final fourteenth payment
of $5,000 immediately thereafter, all less applicable taxes and
withholdings.
(b)
At
the separation date, Bank shall pay Executive for any earned
and unused vacation and Bank of Hours benefits.
(c)
Medical
Benefits.
i.
For
the
period
beginning on the Separation Date and ending on six months
thereafter (“Benefit Continuation Period”), Executive
will be entitled to receive continued coverage under Bank’s
group medical program in which she 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.
ii.
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 paragraph 2(b)(i) 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.
(d)
Outplacement .
Executive will be eligible to receive professional outplacement
assistance from R.W. Caldwell Associates for a period of three
months commencing at the Bank’s expense. No cash payment will
be made in lieu of any such professional outplacement
assistance.
3.
Release .
(a)
For
and in consideration of the promises and other valuable
consideration paid to Executive pursuant to this Separation
Agreement, Executive, for herself 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 3(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
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