EX-10.6 Separation Agreement - Brown 2005



 








EX-10.6




(Exhibit 10.6) Separation Agreement and Release for Randolph C. Brown




SEPARATION AGREEMENT AND RELEASE




     This SEPARATION AGREEMENT AND RELEASE (“Separation Agreement”) is between the NATIONAL BANK OF
GENEVA (“Employer”), and RANDOLPH C. BROWN (“Executive”).



     WHEREAS, Executive was employed by Employer pursuant to an Employment Agreement entered into
August 1, 2003 (“Agreement”);



     WHEREAS, Executive shall be separated from his employment with Employer;



     WHEREAS, Executive and Employer wish to clarify and amend their respective rights and
obligations arising from the separation of Executive;



     NOW, THEREFORE, in consideration of the mutual promises, benefits and covenants herein
contained, Employer and Executive hereby agree as follows:



     1. Except as expressly altered or modified by this Separation Agreement, the provisions of the
Agreement shall remain in effect and binding on Executive and Employer.



     2. Executive shall be separated effective March 11, 2005, pursuant to Section 4.1.5 of the
Agreement. Employer agrees that it shall not oppose any claim by Executive for New York State
unemployment insurance benefits arising from his separation from Employer. Employer agrees to
provide Executive with copies of its charter and by-laws, any directors’ and officers’ and other
insurance policies affording him coverage, and any documents entitling him to indemnification by
Employer or FII.



     3. Employer shall make twenty-six equal bi-weekly payments of $7,958.54, less required
withholding and deductions, to Executive, which shall satisfy fully Employer’s obligations to
Executive under Section 4.3.8 of the Agreement.



     4. Pursuant to Section 3.4 of the Agreement, Executive may elect to continue participating in
the Financial Institutions, Inc. (“FII”) health plan until July 31, 2006 or until he obtains a
position offering comparable benefits, whichever occurs first, on the same terms as other senior
level employees of the Employer.



     5. Executive has until June 11, 2005 to exercise his vested option in forty thousand four
hundred and fifty-three (40,453) shares of FII stock pursuant to the FII Management Stock Incentive
Plan.



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     6. Executive may, at his option, purchase the Employer vehicle, which has been provided for
his use, for the book value of Fourteen Thousand Dollars ($14,000.00).



     7. Executive shall have 30 days in which to pay Employer the amount which Employer has paid in
premiums on the policies on Executive’s life in accordance with Employer’s Split Dollar insurance
plan.



     8. (a) The parties agree and acknowledge that the consideration to be provided to Executive,
as set forth above, is being provided to extinguish and release all of Executive’s claims against
Employer and any of its past, present or future parent companies, subsidiaries, affiliates,
including FII, and all their respective past, present and future employees, officers, directors,
trustees, shareholders, agents, and successors and assigns (collectively, “Releasees”), and that
the consideration to be provided to Executive exceeds anything of value to which Executive would
otherwise be entitled.



          (b) For and in consideration of the promises and other valuable consideration paid to
Executive pursuant to this Separation Agreement, Executive, for himself and for his heirs,
executors, successors and assigns (collectively, “Releasors”), hereby releases and discharges the
Releasees from any and all claims, demands, causes of action, and liabilities of any kind
whatsoever, whether known or unknown, which the Releasors ever had, now have or may hereafter have
against the Releasees by reason of any actual or alleged act, omission, transaction, practice,
conduct, occurrence, or other matter, except for those rights expressly reserved in this Separation
Agreement.




          (c) Without limiting the generality of Section 8(b) above or characterizing the nature of the
Releasors’ claims, this document releases the Releasees from (i) any and all claims arising out of
Executive’s employment with Employer; (ii) any and all claims (whether based on a federal, state or
local stature, 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 American with
Disabilities Act, the Employee Retirement and Income Security Act, the Sarbanes-Oxley Act of 2002,
the New York Human Rights Law, the New York Labor Law, and/or any other federal, state or local
statute or court decision; (iii) any and all claims for breach of contract; (iv) 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




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arising by virtue of statute or common law, and whether based upon negligent or willful actions or
omissions); and (v) any and all claims for compensatory or punitive damages, attorneys’ fees, costs
and disbursements, which the Releasors ever had, now have or hereafter can, shall or may have
against the 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 expressly reserved in this Agreement.




     9. (a) Except for Executive’s rights to enforce this Separation Agreement, Executive
covenants, to the maximum extent permitted by law, that he shall not at any time hereafter
commence, maintain, prosecute, participate in, or permit to be filed by any other person on his
behalf, any action, charge, complaint, suit or proceeding or any kind, before any court,
administrative agency, or other tribunal, against any of the Releasees with respect to 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.



          (b) Executive further covenants, to the maximum extent permitted by law, that he shall not at
any time hereafter provide information, support or assistance, directly or indirectly, to any
individual or organization, in connection with any action, charge, complaint, suit or proceeding of
any kind against Employer or any of the Releasees. The foregoing covenant shall not preclude
Executive from testifying in a proceeding before a court or agency under compulsion of law,
provided that Executive complies fully with Section 10 below.




          (c) Executive agrees to give Employer and FII notice of any and all attempts to compel
disclosure of any information he is prohibited from disclosing by this Section 9. Executive shall
provide written notice of an attempt to compel such disclosure as promptly as possible to Employer
and FII, and at least five (5) days before compliance with any subpoena or order is requested or
required.




          (d) Executive further covenants that he will not make to any person or entity any statement,
whether written or oral, that directly or indirectly impugns the integrity of, or reflects
negatively on any of the Releasees, or that denigrates, disparages, or results in detriment to any
of the Releasees. The Releasees agree that they will not make to any person or entity any
statement, whether written or oral, that directly or indirectly impugns the integrity of, or
reflects negatively on Executive, or that




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denigrates, disparages, or results in detriment to Executive, except as any Releasee may be
obligated to comply with SEC and other regulatory requirements.




     10. (a) The existence and terms of this Separation Agreement are and shall be deemed
confidential and shall not be disclosed by Executive, or any party acting on behalf of Executive,
to any person or entity, except that Executive may disclose the terms of this Separation Agreement
to his spouse, attorney, and tax and financial advisors, who will each be advised of the
confidentiality of this Separation Agreement, and as required by law. Executive shall be
responsible for any breach of confidentiality by any person listed above.



          (b) Except pursuant to an order of a government body or court and as otherwise provided
herein, and then only provided that Executive has complied with subsection (c) below, neither
Executive, nor any party or individual acting on his behalf, shall disclose to or discuss with any
person or entity any information concerning (i) any mattes relating directly or indirectly to his
employment by Employer, (ii) any matter relating directly or indirectly to this Separation
Agreement, (iii) the termination of Executive’s employment with Employer, or (iv) Confidential
Information, as the term is defined in paragraph 5.1 of the Agreement.




     11. Executive shall make himself available at reasonable times and places to:



          (a) fully cooperate and assist with any examination of the Employer conducted by the Office of
the Comptroller of the Currency (“OCC”) or other regulatory authorities having jurisdiction over
the Employer or FII, including attendance at meetings and production of notes and records that may
be in Executive’s possession;




          (b) fully cooperate and assist the Employer and FII in any internal investigations or audits;
and




          (c) provide consultative assistance to the Employer or FII. Employer will reimburse Executive
any reasonable out of pocket expenses associated with requests for assistance under this provision,
to include travel, lodging and meals.




     12. Any breach by Executive of Section 8, 9, 10 or 11 of this Separation Agreement or of
Paragraphs 5, 6, or 7 of the Agreement, shall be considered a material breach for which Employer
shall be entitled to cease immediately the payments described in Section 3 of this Separation
Agreement and



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the benefits described in Paragraph 3.4 of the Agreement, in addition to any other remedies to
which the Employer may be entitled by law or under the Agreement.




     13. If any provision of this Separation Agreement is held to be illegal, void or
unenforceable, such provisions shall have no effect upon, and shall not impair the legality or
enforceability of, any other provision of this Separation Agreement.



     14. This Separation Agreement is binding upon, and shall inure to the benefit of, the parties
and their respective heirs, executors, representatives, successors and assigns.



     15. The making of this Separation Agreement is not intended, and shall not be construed, as
any admission that Employer or any of the Releasees has violated any federal, state, or local law,
or has committed any wrong against Executive or any other person or entity.



     16. Executive acknowledges and warrants that:



          (a) He has had the opportunity to consider, up to twenty-one days, the terms and provisions of
this Separation Agreement;




          (b) He has been advised by Employer in this writing to consult, and has had adequate
opportunity to consult with, an attorney of his choosing prior to executing this Separation
Agreement;




          (c) He has carefully read this Separation Agreement in its entirety, has had an opportunity to
have its provisions explained to him by an attorney of his choosing, and fully understands the
significance of all of its terms and provisions; and




          (d) He is signing this Agreement voluntarily and of his own free will and assents to all of
the terms and conditions contained herein.




     17. This Separation Agreement shall not become effective until the eighth day following its
execution by Employee (the “Effective Date”). Employee shall have the right to revoke this
Separation Agreement for a period of seven (7) days following his execution of this Separation
Agreement by giving written notice by personal delivery of such revocation to Employer. If
Executive revokes this Separation Agreement prior to the Effective Date, the promises and
obligations contained herein shall be null and void.



     IN WITNESS WHEREOF, the parties hereto have executed this Separation Agreement.



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	Randolph C. Brown	 	 	 	National Bank of Geneva
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	By:	 	 
	

	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Date:	 	 
	

	 	 
	 	 	 	 	 	 







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