Unassociated Document


     

    CONSULTING
      AGREEMENT, SEPARATION AGREEMENT, WAIVER AND RELEASE

     

    This
      CONSULTING
      AGREEMENT, SEPARATION
      AGREEMENT, WAIVER AND RELEASE
      (“Separation Agreement”) is between GREATER BUFFALO SAVINGS BANK (“Bank”) and
      LAWRENCE SCHIAVI (“Executive”) (collectively, the “Parties”). 

     

    WHEREAS,
      Executive and Bank have previously entered into an Employment Agreement dated
      as
      of January 1, 2007 (“Employment Agreement);

     

    WHEREAS,
      Executive and Bank wish to set forth their respective rights and obligations
      arising from Executive’s separation from Bank; and

     

    WHEREAS,
      Bank
      wishes to obtain from Executive assistance in the transition period following
      Executive’s separation from Bank and Executive is willing provide such
      transition services as a consultant upon the terms and conditions set forth
      in
      this Separation Agreement.: 

     

    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 - Mortgage Banking Division of Bank is effective
      as
      of September 27, 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.  Medical
      Benefits.
      Provided Executive (i) signs this Separation Agreement, and (ii) does not revoke
      it pursuant to Section 18 of this Separation Agreement, Executive will, for
      the period
      beginning on the Separation Date and ending on December 31, 2007 (“Benefit
      Continuation Period”), be entitled to receive continued coverage under Bank’s
      group medical program in which he 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. 

     

    
      
        
        

      

      
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    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 this Section 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.

     

    3.  Consulting
      Services.
      Executive will provide consulting services to Bank concerning the operations
      and
      business of Bank’s mortgage business as may be reasonably requested from time to
      time by Bank’s President, Chief Financial Officer, or Board of Directors
      (“Consulting Services”). Bank hereby agrees to engage Executive, and Executive
      hereby accepts such engagement to provide the Consulting Services, for the
      period beginning on the Separation Date and continuing for a period ending
      on
      December 31, 2007 (“Consulting Period”). Bank and Executive do hereby
      acknowledge that the relationship between Bank and Executive during the
      Consulting Period shall be that of an independent contractor and that Executive
      shall not be treated as an employee for any purpose during that period. The
      Executive’s work schedule and location to perform such duties shall be
      established by mutual agreement of the parties.

     

    4.  Consulting
      Compensation.
      In
      consideration of the performance of the Consulting Services hereunder, Executive
      will receive the following:

     

    (a)  From
      and
      after the Separation Date, Bank shall pay Executive seven consecutive equal
      biweekly payments of $ 7,692.31 commencing on October 4, 2007 and ending on
      December 27, 2007.

     

    (b)  A
      payment
      of $ 171,153.83 on January 10, 2008.

     

    (c)  During
      the Consulting Period, Bank shall provide and make available to Executive
      reasonable office space and secretarial and other related support services
      for
      Executive's use at the Bank’s principal office.

     

    If
      Executive fails to perform and provide any reasonably requested Consulting
      Services during the Consulting Period, Executive will not be entitled to any
      compensation provided in clauses (a) and (b) above, and any payments previously
      made under such clauses will be promptly returned by Executive to
      Bank.

     

    
      
        
        

      

      
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    5.  Release.
      

     

    (a)  For
      and
      in consideration of the promises and other valuable consideration paid to
      Executive pursuant to this Separation Agreement, Executive, for himself 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 5(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.

     

    
      
        
        

      

      
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    (d)  Executive
      acknowledges and agrees that the consideration to be provided to Executive,
      as
      set forth above in Sections 2 and 4 of this Separation Agreement: (i) provides
      items of value to which Executive would not 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.

     

    6.  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. 

     

    7.  Non-Competition.
      For the
      period beginning on the Separation Date and ending on December 31, 2007,
      Executive shall not engage, anywhere within the Western New York counties in
      which Bank has branches, whether directly or indirectly, as principal, owner,
      officer, director, agent, employee, consultant or partner, in the management
      of
      a bank holding company, commercial bank, savings bank, credit union or any
      other
      financial services provider that competes with Bank or their products or
      programs (“Restricted Activities”), provided that the foregoing shall not
      restrict Executive from engaging in any Restricted Activities which Bank direct
      Executive to undertake or which Bank otherwise expressly authorizes. The
      foregoing shall not restrict Executive from accepting employment with a bank
      or
      other organization in which the Executive will be engaged in mortgage banking
      activities or engaged in providing mortgage banking products and services.
      The
      foregoing shall not restrict Executive from owning less than five percent (5%)
      of the outstanding capital stock of any company which engages in Restricted
      Activities, provided that Executive is not otherwise involved with such company
      as an officer, director, agent, employee or consultant. The foregoing provisions
      this Section shall not be held invalid because of the scope of the territory
      covered, the actions restricted thereby, or the period of time such covenant
      is
      operative. The provisions of this Section 7 supersedes any provision in the
      Employment Agreement relating to the same subject matter.

     

    
      
        
        

      

      
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    8.  Non-Solicitation.
      Executive agrees that for the period beginning on the Separation Date and ending
      six months thereafter, Executive shall not, directly or indirectly, without
      the
      written consent of Bank: (i) recruit or solicit for employment any employee
      of Bank or encourage any such employee to leave their employment with Bank,
      or
      (ii) solicit, induce or influence any customer, supplier, lessor or any
      other person or entity which has a business relationship with Bank to
      discontinue or reduce the extent of such relationship with Bank. For the
      purposes of this Separation Agreement, the term “solicit” means any direct or
      indirect communication of any kind whatsoever, regardless of by whom initiated,
      inviting, advising, encouraging, or requesting any person or entity, in any
      manner to take or refrain from taking any action. The provisions of this Section
      8 supersedes any provision in the Employment Agreement relating to the same
      subject matter.

     

    9.  Return
      of Bank Property.
      Executive warrants that he has returned all Bank Property to Bank. For purposes
      of this Separation Agreement, “Bank Property” includes, but is not limited to,
      all information and materials belonging to the Bank or its customers or clients,
      including office keys and equipment, documents, policy or practice manuals,
      records, customer files, written materials, electronic information, software
      packages, computers, computer disks, drives or files, handheld computer devices
      such as Blackberries, mobile phones, corporate credit cards, all other Bank
      Property in Executive’s position, including any and all reproductions or copies
      thereof. 

     

    10.  Non-Disparagement.
      Executive covenants that, except to the extent required by law, 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 the Bank or
      any
      of its executives, officers, directors, or employees or that denigrates,
      disparages or results in detriment to the Bank. 

     

    
      
        
        

      

      
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    11.  Confidential
      Information.
      For
      purposes of this Separation Agreement, “Confidential Information” includes, but
      is not limited to, any and all records, files, reports, letters, memoranda,
      records, data, flowcharts, promotional materials, agreements, information,
      market studies, pricing, customer lists, business methods, financial and cost
      data, business plans and strategies and other secret, confidential or
      proprietary information of any nature relating to the Bank, its personnel,
      affiliates and subsidiaries, and their parents, officers, board members,
      distributors, suppliers or employees, which is not generally available to the
      public. Except as required by law, Executive shall not disclose to or discuss
      with any person or entity any Confidential Information. Executive hereby
      warrants and guarantees that he has surrendered to the Bank all documents and
      data of any kind, including electronic versions of documents and data in
      machine-readable form, and any and all reproductions, in whole or in part,
      of
      any items relating to Confidential Information and has not made or retained
      any
      copy or extract of such documents, data or reproductions. Executive agrees
      to
      give Bank written notice of any and all attempts to compel of any Confidential
      Information or other information as to which disclosure is prohibited by this
      Separation Agreement. Such written notice shall be provided as soon as
      reasonably possible after Executive becomes aware of such attempt to compel
      such
      information and not less than five (5) days before compliance with any subpoena
      or order is requested or required.

     

    12.  Executive
      Cooperation.
      Executive shall cooperate fully in connection with any and all existing or
      future litigations or investigations brought by or against the Bank or any
      of
      its agents, officers, directors, or employees in which and to the extent
      Executive’s cooperation is necessary. In the event that Executive is subpoenaed
      in connection with any litigation or investigation, if legally permissible,
      Executive will promptly notify the Bank and shall give the Bank an opportunity
      to respond to such notice before taking any action or making any decision in
      connection with such subpoena. The Bank will reimburse Executive for reasonable
      out-of-pocket expenses incurred as a result of such cooperation.

     

    13.  Remedy.
      Executive acknowledges and agrees that the time periods and the other
      restrictions contained in Sections 7 through and including 12 are reasonable,
      legitimate and fair to Executive and necessary to protect the interests of
      Bank.
      In order to enforce compliance with this Separation Agreement, Executive
      acknowledges that the failure to comply with the provisions of Sections 7
      through and including 12 of this Separation Agreement will cause the Bank
      irrevocable harm and that a remedy at law for such failure would be an
      inadequate remedy for Bank. Therefore, Executive consents that the Bank may
      obtain an order of specific performance, an injunction, a restraining order,
      or
      other equitable relief from a court or arbitrator having jurisdiction. The
      availability of equitable relief shall not preclude the Bank from recovering
      any
      monetary damages or other relief to which it is entitled under applicable
      law.

     

    14.  Breach.
      Any
      material breach by Executive of this Separation Agreement shall be considered
      a
      breach for which the Bank shall be entitled to cease the payments and benefits
      described in Sections 2 and 4 of this Separation Agreement, in addition to
      any
      other remedies to which the Bank may be entitled by law. 

     

    
      
        
        

      

      
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    15.  Binding
      Effect.
      This
      Separation Agreement is binding upon, and shall inure to the benefit of, the
      Parties and their respective heirs, executors, representatives, successors
      and
      assigns except that Executive may not assign any of his obligations to provide
      the Consulting Services pursuant to this Separation Agreement without the prior
      written consent of Bank. 

     

    16.  Choice
      of Law.
      This
      Separation Agreement is to be construed at all times in accordance with and
      governed by the laws of the State of New York applicable to agreements made
      and
      to be performed entirely within such State.

     

    17.  Opportunity
      to Review.
      Executive acknowledges and warrants that (a) Executive has had a reasonable
      period of time not less than 21 days, to consider the terms and provisions
      of
      this Separation Agreement; (b) Executive has been advised by Bank in this
      writing to consult, and has had adequate opportunity to consult with, an
      attorney of Executive’s choosing prior to executing this Separation Agreement;
      (c) Executive has carefully read this Separation Agreement in its entirety,
      has
      had an opportunity to have its provisions explained to Executive by an attorney
      of Executive’s choosing, and fully understands the significance of all of its
      terms and provisions; and (d) Executive is signing this Separation Agreement
      voluntarily and of Executive’s own free will and assents to all of the terms and
      conditions contained herein. 

     

    18.  Effective
      Date and Right to Revoke.
      Executive has been given 21 days from the date of receipt to consider the terms
      and conditions of this Separation Agreement. Executive may accept this
      Separation Agreement by signing it after the Separation Date and returning
      an
      original Separation Agreement to Andrew W. Dorn, Jr. Greater Buffalo Savings
      Bank, any time during this 21-day period. Executive agrees that any changes
      to
      the Separation Agreement from the time it was offered to Executive, whether
      material or immaterial, do not restart the running of the 21-day period. After
      signing this Separation Agreement, Executive shall have seven days to revoke
      it
      by indicating Executive’s desire to do so in a writing received by Bank in
      accordance with this Section 18 of this Separation Agreement no later than
      5:00
      p.m. Eastern Standard Time on the seventh day following the date Executive
      signs
      this Separation Agreement (“Revocation Period”). The effective date of this
      Separation Agreement shall be the eighth day following Executive’s signing of
      this Separation Agreement provided Executive does not revoke it during the
      Revocation Period. If Executive does not accept this Separation Agreement as
      set
      forth above, or revokes this Separation Agreement during the Revocation Period,
      this Separation Agreement (including any obligations of the Bank to provide
      the
      consideration referred to above) shall be deemed null and void. 

     

    19.  Section
      409A Compliance.
      This
      Separation Agreement is intended to comply and shall be administered in a manner
      that is intended to comply with Section 409A of the Internal Revenue Code and
      shall be construed and interpreted in accordance with such intent. 

     

    20.  Entire
      Agreement and Termination of Employment Agreement.
      This
      Separation Agreement constitutes the entire agreement between the parties with
      respect to the subject matter hereof, and the duties, compensation and benefits
      of Executive, and except as otherwise specifically provided herein, supersedes
      all prior communications, representations, agreements, understandings, plans
      and
      arrangements between the parties, whether oral or written. Provided Executive
      (i) signs this Separation Agreement, and (ii) does not revoke it pursuant to
      Section 18 of this Separation Agreement, Bank and Executive hereby terminate
      the
      Employment Agreement as of the Separation Date specifically including any
      obligations or rights of under Sections 10 and 11 of the Employment Agreement
      which would otherwise survive the termination of the Employment
      Agreement.

     

    
      
        
        

      

      
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    21.  Severability.
      If any
      provision of this Separation Agreement shall be held by a court of competent
      jurisdiction to be illegal, void, or unenforceable, such provision shall be
      of
      no force and effect. In addition, if any one or more of the provisions contained
      in this Separation Agreement is held to be excessively broad as to duration,
      scope, activity or subject, such provisions will be construed by limiting and
      reducing them so as to be enforceable to the maximum extent compatible with
      applicable law.

     

    22.  Counterparts.
      This
      Separation Agreement may be executed in several counterparts, each of which
      shall be an original as against any party who or which signed it, and all of
      which shall constitute one and the same document.

     

    23.  Notices.
      All
      notices, requests, claims, demands and other communications hereunder shall
      be
      in writing and shall be given (and shall be deemed to have been duly given
      upon
      receipt) by delivery in person, by prepaid overnight courier (providing proof
      of
      delivery), by facsimile or by registered or certified mail (postage prepaid,
      return receipt requested) to the respective parties at the following addresses
      or facsimile numbers (or at such other address for a party as shall be specified
      in a notice given in accordance with this Section 23):

     

    if
      to
      Executive:

    


    Lawrence
      Schiavi

    9199
      Beech Meadow Court

    Clarence
      Center, NY 14032

    


    if
      to
      Bank:

    


    GREATER
      BUFFALO SAVINGS BANK,

    Attn:
      President

    2421
      Main
      St.

    Buffalo,
      New York 14214


     

    [Remainder
      of Page Intentionally Left Blank. Signature Page Follows.]

     

    
      
        
        

      

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

     

    
      	EXECUTIVE	 	 	GREATER
              BUFFALO SAVINGS BANK
	
            	 	 	
            
	
              
                
Lawrence
                Schiavi 

            	 	 	
              By:

              
                

              

            
	 	 	 	 
	
              Date:

              
                
 

            	 	 	
              Date:
                

              
                

              

            


    

     

    STATE
      OF
      NEW YORK

     

    :ss.

     

    COUNTY
      OF
      ___________

     

    On
      the
      _____ day of ____________, in the year 2007, before me, the undersigned,
      personally appeared LAWRENCE SCHIAVI, personally known to me or proved to me
      on
      the basis of satisfactory evidence to be the individual whose name is subscribed
      to the within instrument and acknowledged to me that he executed the same in
      his
      capacity, and that by his signature on the instrument, the individual executed
      the instrument.

     

    ____________________________________________________

    Notary
      Public

     

    
      
        
        

      

      
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