AGREEMENT AND RELEASE
Exhibit 10.1
This
Agreement and Release (“Agreement”) is made and entered into this 23rd day of
January, 2008, among Vineyard Bank, National Association, a national banking
association (“Bank”), Vineyard National Bancorp, a California corporation
(“Bancorp”) and Xxxxxx Xxxxxxx Xxxxxxx (“Xxxxxxx”). The parties have
agreed that Xxxxxxx’ employment with Bank, Bancorp and all parents, subsidiaries
and affiliates of Bank and Bancorp (collectively, the “Vineyard Entities”) shall
terminate effective January 23, 2008 (the “Separation Date”). The
following confirms the terms and conditions of a mutually agreed upon separation
and release of claims among Bank, Bancorp and Xxxxxxx.
1. Termination
of Employment;
Resignation from Board of Directors. Xxxxxxx’ employment with
each of the Vineyard Entities will be terminated effective as of the Separation
Date, and Xxxxxxx hereby resigns from the board of directors of each of the
Vineyard Entities, including, without limitation, Bancorp, Bank, 1031 Exchange
Advantage, Inc. and 1031 Funding & Reverse Corp., effective as of the
Separation Date. Xxxxxxx will be relieved of all duties and
responsibilities related to his positions as of that date.
2. Payments. Promptly
following the expiration of the revocation period set forth in Section 8 of
this
Agreement, and provided that Xxxxxxx is in compliance with the terms and
conditions of this Agreement, Bank or Bancorp shall:
(a) Pay
to
Xxxxxxx a lump sum payment in the amount of One Million One Hundred and Fifty
Thousand Dollars ($1,150,000), less all applicable state and federal
withholdings;
(b) Reimburse
Xxxxxxx for premiums incurred by Xxxxxxx in continuing group health insurance
coverage pursuant to COBRA through January 23, 2009. After January
23, 2009, Xxxxxxx shall be eligible to continue group health insurance coverage
pursuant to COBRA at Xxxxxxx’ own expense. Xxxxxxx shall not be
eligible, however, to receive or accrue other benefits, such as vacation, sick
leave or holiday pay;
(c) Transfer
to Xxxxxxx any and all interest of the Vineyard Entities in the equity
membership held by Xxxxxxx at the Shady Canyon Country Club;
(d) Transfer
to Xxxxxxx good and marketable title to that certain 2007 Mercedes S65,
California license number 6BPS655; and
(e) Use
commercially reasonable best efforts to facilitate the transfer of its entire
interest in the “key-man” term life insurance policy to Xxxxxxx, under which
Xxxxxxx is the insured party and Bancorp is the current designated
beneficiary. Upon such transfer, Xxxxxxx shall be the sole owner of
such policy and shall be responsible for any and all remaining insurance
premiums and shall have the compete and absolute discretion to designate and
re-designate beneficiaries of the policy from time to time.
3. Consulting
Arrangement. Xxxxxxx shall be placed on a consulting
relationship
with Bank and Bancorp commencing on the Separation Date and ending on January
22, 2009 (the “Consulting Period”). During the Consulting Period,
Xxxxxxx agrees to make himself reasonably available in person, by phone and/or
by email during regular work hours, on a non-exclusive basis, to answer
questions from members of Bancorp’s board of directors or any person
specifically designated by Bancorp’s board of directors regarding matters with
which Xxxxxxx is familiar and/or about which Xxxxxxx acquired knowledge,
expertise and/or experience during the time Xxxxxxx was employed by the
Company. Xxxxxxx shall be an independent contractor, and not an
employee or agent, during the Consulting Period and shall have no authority
to
bind Bank or Bancorp to any third person or otherwise to act in any way as
a
representative of Bank or Bancorp. As an independent contractor,
Xxxxxxx shall not be eligible to participate in any employee benefit plans
or
programs during the Consulting Period, except as expressly set forth in Section
2 of the Agreement. The payment described in Paragraph 2(a) shall be
considered, in part, as compensation to Xxxxxxx for the services rendered by
him
during the Consulting Period and Xxxxxxx shall receive no additional monies
or
fees from Bank or Bancorp for providing the services described in this
Paragraph.
4. Return
of
Property. Xxxxxxx agrees to return to Bancorp no later than
the close of business on January 26, 2008 all property of any of the Vineyard
Entities which Xxxxxxx has in his custody or control including, but not limited
to, office equipment, forms, manuals, client files, personnel files, or other
confidential or proprietary materials of any of the Vineyard
Entities. Xxxxxxx agrees to maintain all information regarding any of
the Vineyard Entities’ clients or internal policies or procedures as strictly
confidential and shall not disclose them to third parties.
5. Waiver
of
Rights. Xxxxxxx agrees that the payments and benefits
referenced in this Agreement are in excess of all monies and/or benefits owed
by
Bank and/or Bancorp to him for any reason whatsoever, and except as specifically
provided by this Agreement, all rights of Xxxxxxx associated with his employment
and/or that certain Amended and Restated Employment Agreement among Bancorp,
Bank and Xxxxxxx dated April 9, 2007 are terminated as of the Separation
Date.
6. Releases
of Known and Unknown
Claims. In consideration of the payments and benefits outlined
above, and excepting only the obligations created in this Agreement, Xxxxxxx
hereby releases and discharges Bank, Bancorp and their current and former
officers, directors, shareholders, employees, representatives, attorneys and
agents, as well as their predecessors, parents, subsidiaries, affiliates,
divisions, and successors in interest of and from any and all claims, demands,
liabilities, suits or damages of any type or kind, whether known or unknown,
including, without limitation, any and all claims arising from or in any way
related to Xxxxxxx’ employment with any of the Vineyard Entities, the
termination thereof or the Amended and Restated Employment Agreement dated
April
9, 2007.
This
release specifically includes, without limitation, all claims for wages, salary,
incentives, incentive awards, bonuses, benefits, wrongful discharge, breach
of
express or implied contract, defamation, fraud, misrepresentation, intentional
or negligent infliction of emotional distress, defamation, compensatory and/or
other relief relating to or in any way connected with the terms, conditions,
and
benefits of employment, discrimination based on race, color, sex, religion,
national origin, age, marital status, disability and medical condition, and/or
all claims arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq.,
the Age Discrimination in Employment Act of 1967 as amended by the Older Workers
Benefit Protection Act, the Americans with Disabilities Act, the Family and
Medical Leave Act, the California Family Rights Act, the California Fair
Employment and Housing Act, COBRA, the Employee Retirement Income Security
Act
of 1974 (“ERISA”), and/or violations of any other statutes, rules, regulations
or ordinances whether federal, state or local. Notwithstanding the
foregoing, nothing in this Agreement shall prevent Employee from filing a charge
with any federal, state or administrative agency, but Xxxxxxx agrees not to
participate in, and waives any rights with respect to, any monetary or financial
relief arising from any such proceeding that relates to the matters released
by
this Agreement.
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It
is
understood and agreed that this release extends to all claims of whatever
nature, known or unknown, and includes all rights under Section 1542 of the
Civil Code of California, which provides as follows:
A
general
release does not extend to claims which the creditor does not know or suspect
to
exist in his or her favor at the time of executing the release, which if known
by him or her must have materially affected his or her settlement with the
debtor.
Thus,
notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of all claims, Xxxxxxx
expressly acknowledges that this Agreement also includes in its effect, without
limitation, all claims that Xxxxxxx does not know or suspect to exist in his
favor at the time of execution hereof, and that this Agreement contemplates
the
extinguishment of any and all such claim(s).
This
release does not extend to any future claim that Xxxxxxx may have against Bank
or Bancorp for:
(a) Payments
to Xxxxxxx provided for in this Agreement.
(b) Claims
by
Xxxxxxx for indemnification pursuant to (i) indemnification provisions, if
any, of the bylaws or charter documents of Xxxxxxx, (ii) indemnification
rights of Xxxxxxx under California or other applicable law,
(iii) indemnification pursuant to any directors and officers’ liability,
general liability or other insurance policy carried by Bank or Bancorp, in
the
event any third party claims are asserted against Xxxxxxx by virtue of his
service as an officer or employee of Bank or Bancorp.
7. No
Admission of
Liability. By entering into this Agreement, neither Bank nor
Bancorp suggest or admit to any liability to Xxxxxxx or that either of them
violated any law or any duty or obligation to Xxxxxxx.
8. Right
to an Attorney, Time to
Consider, Revocation. Xxxxxxx acknowledges and agrees
that he was provided with twenty-one (21) days to consider this Agreement and
to
consult with counsel and Bank and Bancorp have advised Xxxxxxx of his right
to
do so. To the extent that Xxxxxxx has taken less than twenty-one (21)
days to consider this Agreement, Xxxxxxx acknowledges that he has had sufficient
time to consider this Agreement and to consult with counsel and that Xxxxxxx
did
not desire additional time. This Agreement is revocable by Xxxxxxx
for a period of seven (7) calendar days following Xxxxxxx’ execution of this
Agreement. Thus, the terms of this Agreement will not become
effective or enforceable for seven (7) calendar days following the date of
this
Agreement’s execution by Xxxxxxx, during which time Xxxxxxx may revoke this
Agreement by notifying the undersigned representative of Bank and Bancorp in
writing by registered letter. This Agreement becomes effective,
enforceable and irrevocable on the eighth (8th) day following Xxxxxxx’ execution
of this Agreement.
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9. Cooperation. Xxxxxxx
agrees to cooperate with Bank and Bancorp in connection with disputes between
Bank and/or Bancorp and third parties. This cooperation may include,
but is not limited to, conferring with and assisting Bank and Bancorp in
preparatory work in litigation matters, providing factual information to Bank
and Bancorp, and giving depositions and testimony in judicial and administrative
proceedings. Xxxxxxx also agrees to provide such information or
assistance to Bank and Bancorp as may be requested by Bank and/or Bancorp in
connection with any regulatory examination by any state or federal regulatory
authority. Bank and Bancorp will reimburse Xxxxxxx for his reasonable
out-of-pocket expenses incurred in connection therewith, provided that such
expenses are approved in advance by Bank and Bancorp.
10. No
Solicitation of Customers or
Employees. Xxxxxxx agrees that for one (1) year after the
execution of this Agreement, he will not directly or indirectly: (a)
call on, or otherwise solicit business from any actual customer of Bank or
Bancorp of which he is aware, (b) encourage any customers or vendors
of Bank or Bancorp to stop using the facilities or services of Bank or Bancorp,
or (c) encourage any customers or vendors of Bank or Bancorp to use the
facilities or services of any competitor of Bank or Bancorp, nor will he assist
others in engaging in such activity. Xxxxxxx further agrees that he
will not, during the period stated above, encourage or solicit for employment
or
independent contractor work, any employee of Bank or Bancorp, or any of their
parent or subsidiary companies, to terminate his or her employment with Bank
or
Bancorp for any reason, nor will he assist others to do so.
11. Confidentiality. Xxxxxxx
agrees that neither he nor his agents or representatives will disclose,
disseminate and/or publicize, or cause or permit to be disclosed, disseminated
or publicized, the existence of this Agreement, any of the terms of this
Agreement, or any claims or allegations which Xxxxxxx could have made or
asserted against Bank or Bancorp to any person, corporation, association or
governmental agency or other entity except: (1) to the extent
necessary to report income to appropriate taxing authorities; (2) to members
of
Xxxxxxx’ immediate family; (3) to Xxxxxxx’ attorneys; (4) in response to an
order of a court of competent jurisdiction or subpoena issued under the
authority thereof; or (5) in response to any inquiry or subpoena issued by
a state or federal governmental agency; provided, however, that notice of
receipt of such judicial order or subpoena shall be immediately communicated
by
Xxxxxxx to Bank and Bancorp telephonically, and confirmed immediately thereafter
in writing, so that Bank and Bancorp will have the opportunity to assert what
rights they have to non-disclosure prior to Xxxxxxx’ response to the order,
inquiry or subpoena. Xxxxxxx also agrees not to disclose or use for
his own benefit, directly or indirectly, any confidential or proprietary
information pertaining to the business of Bank or Bancorp and/or any of their
customers or clients. Xxxxxxx acknowledges that he is obligated to
abide by all previous non-disclosure agreements/proprietary rights agreements
he
entered into with Bank or Bancorp. Xxxxxxx also agrees to abide by
all policies of Bank and Bancorp regarding the protection of Bank and Bancorp’s
confidential and proprietary information. Additionally, Xxxxxxx
agrees not to participate, cooperate or assist any person(s) with respect to
any
claim they may have against Bank and/or Bancorp, directly or indirectly,
specifically or generally. Any violation of this confidentiality
provision contained herein by Xxxxxxx shall be considered a material breach
of
this Agreement.
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12. No
Disparagement. No party will make any negative, disparaging,
detrimental or derogatory comments to any third party concerning any other
party, or any of their current and former officers, directors, shareholders,
employees, representatives, attorneys and agents, as well as their predecessors,
parents, subsidiaries, affiliates, divisions, subordinates, supervisors and
successors in interest.
13. Arbitration. Any
and all disputes, controversies or claims of any kind or nature between the
parties, including without limitation disputes, controversies or claims arising
under or in any way relating to the interpretation, application or enforcement
of this Agreement, Xxxxxxx’ employment with any of the Vineyard Entities, any
claim for benefits, Xxxxxxx’ separation of employment from the Vineyard
Entities, any claim by Xxxxxxx that he was fraudulently induced to enter into
this Agreement, or claims relating to the general validity or enforceability
of
this Agreement, shall be settled by final and binding arbitration under the
auspices and rules of the American Arbitration Association or other mutually
agreed upon alternative dispute resolution service. Any such
arbitration must be filed in Riverside County, California, and the laws of
the
State of California shall control except where federal law
governs. The prevailing party in any such arbitration proceeding
shall be entitled to reasonable costs and attorney’s fees. The award
of the arbitrator is to be final and enforceable in any court of competent
jurisdiction.
14. Waiver
and
Modification. The failure to enforce any provision of this
Agreement shall not be construed to be a waiver of such provision or to affect
either the validity of this Agreement or the right of any party to enforce
the
Agreement. This Agreement may be modified or amended only by a
written agreement executed by Xxxxxxx and the undersigned representatives of
Bank and Bancorp.
15. Integration.
This
Agreement
between the parties constitutes a single, integrated written contract expressing
the entire agreement of the parties hereto relative to the subject matter
hereof. No covenants, agreements, representations, or warranties of
any kind whatsoever have been made by any party hereto. All prior
discussions and negotiations have been and are merged and integrated into,
and
are superseded by, this Agreement.
16. Regulatory
Provision. Any payments made to Employee pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with 12 U.S.C. § 1828(k) and any regulations promulgated
thereunder.
17. Severability
and Savings
Provision. In the event that any provision of this Agreement
should be held to be void, voidable, or unenforceable, the remaining portions
hereof shall remain in full force and effect. Additionally, in the
event that any portion of this agreement is deemed void or unenforceable, the
parties will be excused from performing that portion of the
Agreement.
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18. Governing
Law. This
Agreement shall be construed in accordance with, and be governed by the laws
of
the United States, including the rules and regulations of the Office of the
Comptroller of the Currency and, to the extent federal is not applicable, by
the
laws of the State of California, both procedural and substantive.
PLEASE
READ CAREFULLY. THIS AGREEMENT CONTAINS A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
Dated: January
23, 2008
|
VINEYARD
BANK, NATIONAL ASSOCIATION
|
By: /s/ Xxxxx X. XxXxxxx III | |
Dated: January
23, 2008
|
|
By: /s/ Xxxxx X. XxXxxxx III | |
I
have
carefully read this Agreement and understand that it contains a release of
known
and unknown claims. I acknowledge and agree to all of the terms and
conditions of this Agreement. I further acknowledge that I enter into
this Agreement voluntarily with a full understanding of its terms.
Dated: January
23, 2008
|
/s/ Xxxxxx
Xxxxxxx Xxxxxxx
|
Xxxxxx Xxxxxxx Xxxxxxx |
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