Exhibit 10.1
EMPLOYMENT TERMINATION
AGREEMENT
THIS EMPLOYMENT TERMINATION AGREEMENT
(the "Agreement") is made and
entered into by and between M. BURKE WELSH, JR., an individual, on
behalf of himself, his spouse, agents, representatives, attorneys,
assignees, heirs, executors, administrators, beneficiaries and
trustees ("WELSH"), and PAB BANKSHARES, INC. (the
“COMPANY”) and THE PARK AVENUE BANK (the
“BANK”) on behalf of themselves, their predecessors,
successors, all former, current and future related companies,
divisions, subsidiaries, affiliates and parents, and collectively,
their former, current and future directors, officers, employees,
agents, representatives, attorneys, fiduciaries, assignees, heirs,
executors, administrators, beneficiaries and trustees (the
“COMPANIES”). WELSH and the COMPANIES
are sometimes referred to together as the “parties” or
individually as a “party.”
WITNESSETH:
WHEREAS , WELSH is employed as the President and Chief
Executive Officer of the COMPANIES pursuant to an Employment
Agreement dated May 1, 2008 (the “Employment
Agreement”), between WELSH and the COMPANIES; and
WHEREAS , WELSH and the COMPANIES desire to fully and
finally terminate the Employment Agreement and resolve any and all
obligations that each may have against the other under the
Employment Agreement or otherwise in an amicable manner;
NOW, THEREFORE , in consideration of the mutual covenants and
promises each party has made to the other as set forth in this
Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, WELSH and
the COMPANIES agree as follows:
1.
Termination of Employment and Employment Agreement.
Effective on the date that this Agreement is executed by both
parties (the “Termination Date”), WELSH resigns his
employment with the Companies and further resigns as President,
Chief Executive Officer and Director of the
COMPANIES. Except as provided herein, the terms of
the Employment Agreement shall terminate as of the Termination
Date.
2.
General Waiver And Release. WELSH fully
and completely waives, releases, and forever discharges the
COMPANIES from any and all claims, charges, complaints, actions,
causes of action, grievances, controversies, demands, agreements,
contracts, covenants, promises, liabilities, judgments,
obligations, debts, damages (including, but not limited to, actual,
compensatory, exemplary and punitive damages), attorneys' fees and
costs and/or any other liabilities of any kind, nature, description
or character which he may have against the COMPANIES arising out of
WELSH’S employment with the COMPANIES, the termination of his
employment with the COMPANIES, and/or any other occurrence
whatsoever before the date that WELSH executes this Agreement,
whether known or unknown, suspected or concealed, and whether
presently asserted or otherwise, including, but not limited to, all
claims that the COMPANIES:
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violated public
policy or common law (including claims for breach of contract,
promissory estoppel, detrimental reliance, retaliatory discharge,
personal injury, invasion of privacy, negligent hiring, retention
or supervision, defamation, intentional or negligent infliction of
emotional distress and/or mental anguish, intentional or tortious
interference with contract, negligence, or loss of consortium);
or
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Exhibit 10.1
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violated their
personnel policies or handbooks, or any purported contract of
employment, express or implied, between WELSH and the COMPANIES;
or
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failed to
provide WELSH with any severance pay or other benefits pursuant to
the terms of any employee benefit plan or arrangement of the
COMPANIES, violated the terms of any such employee benefit plan,
breached any fiduciary obligation with respect to such plan or
arrangement, or discriminated against WELSH for the purpose of
preventing WELSH from obtaining benefits pursuant to the terms of
any such plan or arrangement, or in any way violated any provision
of the Employee Retirement Income Security Act, as amended, 29
U.S.C. § 1001 et seq. ; or
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retaliated
against or discriminated against WELSH on the basis of age, sex
(including sexual harassment), race, disability, handicap, national
origin, age, ancestry, religion, sexual orientation, marital
status, parental status, caregiver status, source of income, or any
other basis in violation of any city, local, state or federal laws,
ordinances, executive orders, regulations or constitutions or
otherwise violated any city, local, state, or federal laws,
ordinances, executive orders, regulations or constitutions,
including Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq. , the Fair Labor
Standards Act of 1938, as amended, 29 U.S.C. § 201 et
seq. , the Family and Medical Leave Act, 29 U.S.C. §
2601 et seq. , the Americans with Disabilities Act of
1990, 42 U.S.C. § 12101 et seq. , the Equal Pay
Act, 29 U.S.C. § 206(d), and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. § 621 et
seq. (“ADEA”).
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For the purpose of implementing a full and
complete waiver and release, WELSH expressly acknowledges that the
waiver and release he gives in this Agreement is intended to
include in its effect, without limitation, claims that he did not
know or suspect to exist in his favor at the time WELSH executes
this Agreement, regardless of whether the knowledge of such claims,
or the facts upon which they might be based, would materially have
affected the settlement of this matter, and that the consideration
given under the Agreement was also for the waiver and release of
those claims and contemplates the extinguishment of any such
unknown claims.
3.
Covenant Not To Sue. WELSH also agrees not to
sue the COMPANIES, either individually or collectively, in any
forum for any claim covered by the waiver and release set forth in
Paragraph 2, except that WELSH may bring a claim under the ADEA to
challenge this Agreement. If WELSH violates this
Agreement by suing the COMPANIES, other than under the ADEA to
challenge this Agreement, WELSH shall be liable to the COMPANIES
for their reasonable attorneys’ fees and other litigation
costs incurred in defending against such a lawsuit.
4.
Rights And Claims Excluded From Waiver And Release.
This Agreement does not waive any rights that cannot be
waived by law, including WELSH’S right to file an
administrative charge of discrimination. WELSH is
waiving, however, any right to monetary recovery should any
administrative agency (such as the Equal Employment Opportunity
Commission) pursue any claims on his behalf.
5.
Non-Admission Of Liability. WELSH
acknowledges that nothing contained in this Agreement, nor any of
the acts taken thereunder, shall be deemed or construed as an
admission of liability of any violation of any applicable law,
ordinance, order, regulation, or constitution of any
kind.
Exhibit 10.1
6.
Future Cooperation. Upon
reasonable advance notice from the COMPANIES, following the
Termination Date, WELSH shall make himself available to the
COMPANIES or their designated representatives for the purposes
of: (a) providing information regarding the projects,
files, and matters on which WELSH worked for the purpose of
transitioning such projects; and (b) providing information and/or
testimony regarding any other matter, file, project, and/or client
with whom WELSH was involved while employed with the
COMPANIES.
7.
Future Assurance . Upon a
reasonable request by the COMPANIES, WELSH agrees to take any and
all actions, including, without limitation, the execution of
certificates, documents, or instruments necessary or appropriate to
give effect to the terms and conditions set forth in this
Agreement.
(a) In
consideration for WELSH’S agreement to terminate the
Employment Agreement, to fully release the COMPANIES from any and
all claims under the Employment Agreement or otherwise, and the
other duties and obligations of WELSH contained herein, the parties
agree, subject to Paragraph 18 below, that the BANK shall pay
severance to WELSH in a total, gross amount of Seven Hundred Thirty
Thousand Dollars ($730,000), less any amounts required to be
withheld under applicable law. The COMPANIES will issue
to WELSH an IRS Form W-2 indicating the amount withheld under
applicable law. Such payment shall be made as soon as
administratively feasible following the expiration of the
revocation period applicable to this Agreement, but in no event
later than May 30, 2009.
(b) Notwithstanding
anything else contained herein to the contrary, no payment shall be
made or benefits delivered under this Agreement (other than
payments required to be made by the COMPANIES pursuant to Paragraph
9 below) unless and until the applicable revocation period to this
Agreement has expired without WELSH having elected to revoke the
Release. WELSH agrees and acknowledges that he would not
be entitled to the consideration described herein absent execution
of this Agreement.
9.
Other Benefits.
(a) Nothing
in this Agreement shall:
(i)
alter or reduce any vested, accrued benefits (if any) WELSH
may be entitled to receive under any 401(k) plan established by the
COMPANIES, which shall be paid in accordance with the terms of the
401(k) plan;
(ii) affect
WELSH’S right (if any) to elect and pay for continuation of
WELSH’S health insurance coverage under COMPANIES’
health plans pursuant to the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”) or other applicable law
concerning health care continuation coverage;
(iii) affect
WELSH’S right (if any) to receive (i) any Base Salary, as
defined in the Employment Agreement, that accrues through the
Termination Date but is unpaid, (ii) any reimbursable expenses that
WELSH incurs before the Termination Date but are unpaid, provided
Welsh has provided substantiation of such expenses, (iii) any
unused paid time off days (including vacation days) accrued through
the Termination Date, all of which shall be paid as soon as
administratively practicable (and in any event within thirty (30)
days) after the Termination Date;
Exhibit 10.1
(iv) affect
WELSH’s right to continue to receive his health care benefits
through the Termination Date, as in effect as of the date hereof,
which health care
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