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EXHIBIT 10.11
SEPARATION AGREEMENT AND GENERAL RELEASE
This SEPARATION AGREEMENT and GENERAL RELEASE (hereinafter referred to as
the "Agreement") is executed as of the 24th day of October, 1997 by and among
Carver Bancorp, Inc. ("Company"), Carver Federal Savings Bank ("Bank") and
Biswarup Mukherjee.
WHEREAS, Mr. Mukherjee, the Company and the Bank have agreed that he will
resign from his positions as Executive Vice President and Chief Financial
Officer of the Company and Executive Vice President and Chief Financial Officer
of the Bank effective as of October 24, 1997; and
WHEREAS, the Bank and Mr. Mukherjee desire to achieve the separation of
Mr. Mukherjee's employment amicably;
NOW, THEREFORE, in consideration of the mutual covenants and other good
and valuable consideration contained herein, the parties agree as follows:
1. Mr. Mukherjee shall resign from his positions as Executive Vice
President and Chief Financial Officer of the Company and as Executive Vice
President and Chief Financial Officer of the Bank effective as of October 24,
1997.
2. In consideration for executing this Agreement, including the releases
and other promises and obligations set forth herein, Mr. Mukherjee shall receive
from the Bank a severance payment of $60,000, payable in cash, in monthly
installments of $2,500 commencing on November 1, 1997 and ending with the final
installment payment on October 1, 1999.
3. In consideration for executing this Agreement, Mr. Mukherjee shall be
eligible to receive continued health, life and disability insurance benefits
during the period commencing October 24, 1997 and ending on October 23, 1999, in
accordance with the terms of the group insurance plans provided by the Company
and the Bank for their active employees.
4. In consideration for executing this Agreement, the Company agrees to
purchase from Mr. Mukherjee such shares of common stock of the Company ("Company
Stock") as he may offer to the Company during the 120 day period following his
termination of employment. Such purchase shall be at a price per share equal to
sum of (a) the average of the reported bid and ask price for a share of Company
Stock on the American Stock Exchange (as published by The Wall Street Journal)
on the day before the date of such purchase or, if Company Stock was not traded
on such date, on the next preceding day on which Company Stock was traded
thereon, plus (b) $ .25.
5. The payment and benefits provided for under Paragraphs 2 and 3 of this
Agreement, and the premium to be paid for any shares of Company Stock purchased
from Mr. Mukherjee by the Company pursuant to paragraph 4 of this Agreement,
shall be provided in addition to any benefits and other compensation Mr.
Mukherjee may be entitled to as a former employee of the Company and the Bank
pursuant to the terms of such employee benefit plans, programs or arrangements
as may be maintained by the Company and the Bank for the benefit of their
employees and former employees, including, without limitation, the Bank's
Retirement and 401(k) Savings Plans in RSI Retirement Trust, and the Company's
Management Recognition, 1995 Stock Option, Incentive Compensation Plans and
Employee Stock Ownership Plan (collectively referred
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to herein as the "Plans"). Annexed hereto as Exhibit A is a summary of the
number of shares of Company Stock that have been awarded, allocated or made
subject to options granted to Mr. Mukherjee heretofore, and the retirement
benefit payable to him, under the Plans. Mr. Mukherjee shall receive
distribution of the shares of the Company Stock awarded to him under the
Company's Management Recognition and Incentive Compensation Plans that are
vested as of October 24, 1997 and have not previously been distributed to him no
later than November 15, 1997. Mr. Mukherjee shall receive distribution of the
shares of Company Stock allocated to him under the Company's Employee Stock
Ownership Plan no later than January 31, 1998. In addition, to the extent that
Mr. Mukherjee has any accrued but unused vacation time as of the date of his
termination of employment, he shall receive payment from the Bank for additional
salary attributable to such period of unused vacation time.
6. Mr. Mukherjee agrees that, in exercising any voting or other
shareholder rights attributable to shares of Company Stock with respect to which
he has the right or authority to exercise, or direct the exercise of,
shareholder rights, he will act in accordance with the recommendations of the
Company's management. The foregoing sentence shall be subject to the provisions
of any applicable federal, state or local statute, rule, regulation or ruling
which restricts the ability of Mr. Mukherjee to enter into an agreement
regarding the exercise of shareholder rights attributable to Company Stock
directly or indirectly owned or controlled by him.
7. Mr. Mukherjee agrees that, for a period of one year following the date
of his termination of employment with the Bank and the Company, he shall not,
without the written consent of the Company, become an officer, employee,
consultant, director or trustee of any savings bank, savings and loan
association, savings and loan holding company, bank or bank holding company, or
any direct or indirect subsidiary or affiliate of any such entity, that entails
working in any city, town or county in which the Company or the Bank or any
affiliate of the Company or the Bank has an office or has filed an application
for regulatory approval to establish an office. Nothing contained in this
Agreement shall be deemed to prohibit Mr. Mukherjee from accepting employment
with a public accounting firm, or entering into any other professional or
business arrangement by which Mr. Mukherjee may provide services to a client for
a public accounting firm.
8. Mr. Mukherjee agrees to keep confidential and to refrain from using for
the benefit of himself, or any person or entity other than the Company and the
Bank or any of their affiliates, any material document or information obtained
from the Company or the Bank, or from their affiliates, in the course of his
employment with any of them concerning their properties, operations or business
(unless such document or information is readily ascertainable from public or
published information or trade sources or has otherwise been made available to
the public through no fault of his own) until the same ceases to be material (or
becomes so ascertainable or available); provided, however, that nothing in this
Paragraph 8 shall prevent Mr. Mukherjee, with or without the Company's consent,
from participating in or disclosing documents or information in connection with
any judicial or administrative investigation, inquiry or proceeding to the
extent that such participation or disclosure is required under applicable law.
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9. Mr. Mukherjee hereby covenants and agrees that, for a period of one
year following his termination of employment with the Company and the Bank, he
shall not, without the written consent of the Company, either directly or
indirectly:
a. solicit, offer employment to, or take any other action intended,
or that a reasonable person acting in like circumstances would expect, to have
the effect of causing any officer or employee of the Company or the Bank or any
affiliate of the Company or the Bank to terminate his or her employment and
accept employment or become affiliated with, or provide services for
compensation in any capacity whatsoever to, any savings bank, savings and loan
association, bank, bank holding company, savings and loan holding company, or
other institution engaged in the business of accepting deposits and making
loans, doing business in any city, town or county in which the Company, the Bank
or their affiliates has an office or has filed an application for regulatory
approval to establish an office;
b. provide any information, advice or recommendation to any person
that is intended, or that a reasonable person acting in like circumstances would
expect, to have the effect of causing any officer or employee of the Company or
the Bank, or any affiliate of the Company or the Bank, to terminate his or her
employment and accept employment or become affiliated with, or provide services
for compensation in any capacity whatsoever to any savings bank, savings and
loan association, bank, bank holding company, savings and loan holding company,
or other institution engaged in the business of accepting deposits and making
loans, doing business in any city, town or county in which the Company or the
Bank or an affiliate of the Company or the Bank has an office or has filed an
application for regulatory approval to establish an office; or
c. solicit, provide any information, advice or recommendation or
take any other action intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any customer of the
Company or the Bank or affiliate of the Company or the Bank to terminate an
existing business or commercial relationship with the Company or the Bank or an
affiliate of the Company or the Bank.
10. Mr. Mukherjee hereby agrees that he, on behalf of himself and also on
behalf of any other person or persons claiming or deriving a right from him,
forever releases and discharges the Company and the Bank and their agents,
servants, employees, directors, officers, affiliates and/or subsidiaries, and
any agents, servants, employees, directors and/or officers of all such
affiliates and/or subsidiaries ("the Releasees") from any and all charges,
complaints, claims, liabilities, obligations, promises, agreements,
controversies, actions, demands, debts, costs, expenses, damages, injuries or
causes of action ("Claims") which he now has, or ever has had, arising out of
his employment by, or termination of employment by, the Company and the Bank, or
otherwise, up to and including the date of the execution of this Agreement,
pursuant to any law, rule or regulation, including any Claims of which he is not
aware or does not suspect to exist as of the date of the execution of this
Agreement.
11. The release contained in Paragraph 10 of this Agreement includes, but
is not limited to, any Claims Mr. Mukherjee (or any person or persons claiming
or deriving a right from him) may have based on discrimination due to age, race,
sex, religion or national origin, or any other claims pursuant to the Age
Discrimination in Employment Act of 1967, as amended, the National Labor
Relations Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act
of 1866, the
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Equal Pay Act of 1963, the Rehabilitation Act of 1973, the Americans with
Disabilities Act, the Equal Pay Act, the Fair Labor Standards Act, the Employee
Retirement Income Security Act of 1974, as amended, the Internal Revenue Code of
1986, Executive Orders Nos. 11246 and 11141, the New York Human Rights Law, the
New York Equal Pay Law, the New York Equal Rights Law, and any other federal,
state or local statute, rule, constitutional provision, regulation, ordinance or
common law, including, but not limited to, those for wrongful discharge, fraud,
intentional or negligent infliction of emotional distress and breach of any
expressed or implied covenant of good faith and fair dealing, and including but
not limited to, any Claims for recovery of attorney's fees.
12. The Bank hereby agrees that the Bank, on behalf of itself, its
successors and assigns and any person or persons claiming or deriving a right
from the Bank or its successors and assigns, forever releases and discharges Mr.
Mukherjee from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, actions, demands, debts,
costs, expenses, damages, injuries or causes of action ("Claims") which the Bank
now has or ever has had, arising out of Mr. Mukherjee's employment by the Bank
or otherwise, up to and including the date of the execution of this Agreement,
pursuant to any law, rule or regulation, including any claims of which the Bank
is not aware of or does not suspect to exist as of the date of the execution of
this Agreement.
13. Mr. Mukherjee acknowledges that:
a. the payments and benefits to be provided pursuant to Paragraphs
2, 3 and 4 of this Agreement are in consideration for the releases contained
herein and exceed what he is otherwise entitled to receive from the Company and
the Bank ("Additional Payments");
b. he has been advised to consult an attorney before signing this
Agreement and has been afforded the opportunity to do so;
c. he has had the opportunity to consider this Agreement for at
least 21 days;
d. he has read this Agreement in its entirety, understands its
terms, and knowingly and voluntarily consents to its terms and conditions;
e. the releases made by him in Paragraphs 10 and 11 of this
Agreement are made knowingly and voluntarily, and without coercion by the
Company, the Bank or any of the Releasees; and
f. the filing of a Claim against the Company, the Bank or any of the
Releasees by Mr. Mukherjee (or any person or persons claiming or deriving a
right from him) shall be a violation of this Agreement resulting in Mr.
Mukherjee's obligation to repay to the Bank the Additional Payments he has
received in consideration of the releases made by him in Paragraphs 10 and 11 of
the Agreement and forfeiture of his rights to any future Additional Payments, in
addition to any costs or liabilities that may be imposed on him by a court for a
violation of this Agreement.
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12. This Agreement constitutes the entire understanding between the
parties, and supersedes any and all prior understandings and agreements between
the parties.
13. The parties acknowledge that no representations, promises,
consideration or inducements have been made by the Company, the Bank or by any
of the Releasees to Mr. Mukherjee other than what is contained in this
Agreement.
14. This Agreement may not be modified except by a writing signed by all
parties.
15. The parties acknowledge that this Agreement does not constitute or
imply any admission of liability by the Bank, or by any of the Releasees, to Mr.
Mukherjee or to anyone deriving or claiming a right through him or on his
behalf.
16. If any provision in this Agreement is declared or determined by any
court to be illegal, void, or unenforceable, the illegality or unenforceability
of such provision shall have no effect upon, and shall not impair, the
enforceability or validity of any other provisions in this Agreement.
17. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same instrument.
18. This Agreement will inure to the benefit of and be binding upon Mr.
Mukherjee, his legal representatives and testate or intestate distributees, and
the Company, the Bank and its successors and assigns.
19. The parties acknowledge that this Agreement will only become effective
on the eighth day following the day it is signed by Mr. Mukherjee, and that Mr.
Mukherjee may revoke this Agreement at any time prior to its effective date by
giving written notice of revocation to the Bank.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first herein written.
CARVER FEDERAL SAVINGS BANK
/s/ Biswarup Mukherjee By: /s/ Thomas L. Clark
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Biswarup Mukherjee
11/3/97 Title:President and Chief Executive Officer
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Date
CARVER BANCORP, INC.
By: /s/ Thomas L. Clark
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Title:President and Chief Executive Officer
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