SEPARATION AGREEMENT, WAIVER AND RELEASERelease Agreement |
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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.
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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.
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(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 to be provided to Executive,
as
set forth above in Section 2 of this Separation Agreement: (i) exceeds anything
of value to which Executive would otherwise be entitled in the absence of this
Separation Agreement; (ii) fully and completely settles all claims by Executive
and any attorney Executive has retained against Bank and/or the other Bank
Releasees for attorneys fees, costs, disbursements and the like; and (iii)
is
sufficient consideration for Executive’s promises under this Separation
Agreement.
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4. No
Admission.
The
making of this Separation Agreement is not intended, and shall not be construed,
as any admission by Bank or Executive or any of the Bank Releasees that they
have violated any federal, state, or local law, or have committed any wrong
against Executive or any other person or entity.
5. Non-Competition.
For the
period beginning on the Separation Date and ending six months later (“Covenant
Period”), Executive agrees not to, directly or indirectly, for Executive’s own
account or as an agent, employee, officer, director, trustee, consultant or
member, partner, shareholder or other equity holder of any corporation, firm,
company, partnership or other entity (other than as an owner of 1% or less
of
any class of publicly traded securities), engage, anywhere within Erie, Niagara
or Chautauqua counties in New York State, in the management or operation of
a
commercial bank, savings bank, bank holding company, credit union or any other
financial services provider that competes with Bank, its subsidiaries or its
products or programs.
