SEPARATION AGREEMENT AND FULL AND FINAL RELEASE OF CLAIMS
Exhibit 10.1
SEPARATION AGREEMENT AND
FULL AND FINAL RELEASE OF CLAIMS
FULL AND FINAL RELEASE OF CLAIMS
This Separation Agreement and Full and Final Release of Claims (“Agreement”) is made and
entered into between Xx. Xxxx Won Xxxx (“Xx. Xxxx”) and Hanmi Financial Corporation (“Hanmi”), a
Delaware corporation (collectively, the “Parties”).
1. SEVERANCE. The Parties have mutually agreed to end their employment relationship
(and Xx. Xxxx’x employment relationship with all subsidiaries and affiliates of Hanmi) effective
December 31, 2007 (the “Severance Date”). In resolution of their employment relationship, the
Parties have agreed to the terms set forth below.
2. BENEFITS. In consideration of his decision to enter into this Agreement, and
conditioned upon Xx. Xxxx’x material compliance with his obligations under Sections 3, 5, 6, 7 and
8 of the Employment Agreement and Sections 7, 10, 11, 20, 22, 24 and 25 of this Agreement
(regardless of whether the covenants, obligations or provisions set forth in such sections are
otherwise deemed enforceable), Hanmi agrees to provide Xx. Xxxx with the following:
(a) Xx. Xxxx shall receive a one-time, lump sum cash payment in the gross amount of One
Million Two Hundred Ninety Eight Thousand and no/100 Dollars ($1,298,000.00), subject to applicable
tax and other withholdings, within seven (7) days after the Effective Date, the actual date of
payment to be determined in the sole discretion of Hanmi. The payment pursuant to this Section
2(a) shall be subject to Section 32(b).
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(b) Xx. Xxxx shall receive a cash payment in the gross amount of Thirty Nine Thousand Three
Hundred Forty Six and 16/100 Dollars ($39,346.16) for all accrued but unused vacation through
December 31, 2007, which consists of seventeen (17) days, subject to applicable tax and other
withholdings, within seven (7) days after the Effective Date, the actual date of payment to be
determined in the sole discretion of Hanmi. The payment pursuant to this Section 2(b) shall be
subject to Section 32(b).
(c) Hanmi Bank (the “Bank”) shall transfer to Xx. Xxxx ownership of the 2005 Mercedes Benz
430S automobile (the “Mercedes”) that was provided for Xx. Xxxx’x use at the commencement of his
employment. The transfer of ownership of the Mercedes to Xx. Xxxx shall be without cost to Xx.
Xxxx. The Bank shall tender the properly executed title transfer documents for the Mercedes to Xx.
Xxxx within thirty (30) days after the Effective Date, the actual date of transfer to be determined
in the sole discretion of Hanmi. Xx. Xxxx shall be responsible for paying all applicable sales,
license and any other taxes and fees in connection with this transaction. Xx. Xxxx shall be solely
responsible to pay all costs and expenses of maintaining, operating and insuring the Mercedes after
the Severance Date. The transfer of ownership pursuant to this Section 2(c) shall be subject to
Section 32(b).
(d) The Bank shall transfer to Xx. Xxxx its equitable ownership interest in the Wilshire
Country Club membership that was provided for Xx. Xxxx’x use at the commencement of his employment.
The transfer of ownership of the Wilshire Country Club membership to Xx. Xxxx shall be without
cost to Xx. Xxxx. The Bank shall tender a release of all of its right, title and interest in the
Wilshire Country Club membership to Xx. Xxxx within thirty (30) days after the Effective Date, the
actual date of transfer to be determined in the sole discretion of Hanmi. Xx. Xxxx shall be
responsible for paying all income taxes and any other fees or taxes in connection with this
transaction. Xx. Xxxx shall be solely responsible to pay all monthly dues, quarterly or monthly
minimum charges, and any other costs and expenses of maintaining the Wilshire Country Club
membership after the Severance Date. The transfer of the equitable ownership interest pursuant to
this Section 2(d) shall be subject to Section 32(b).
(e) The Bank shall transfer its equitable ownership interest in the Xxxxxxxx Club membership
that was provided for Xx. Xxxx’x use at the commencement of his employment. The transfer of
ownership of the Xxxxxxxx Club membership to Xx. Xxxx shall be without cost to Xx. Xxxx. The Bank
shall tender a release of all of its right, title and interest in the Xxxxxxxx Club membership to
Xx. Xxxx within thirty (30) days after the Effective Date, the actual date of transfer to be
determined in the sole discretion of Hanmi. Xx. Xxxx shall be responsible for paying all income
taxes and any other fees or taxes in connection with this transaction. Xx. Xxxx shall be solely
responsible to pay all monthly dues, quarterly or monthly minimum charges, and any other costs and
expenses of maintaining the Xxxxxxxx Club membership after the Severance Date. The transfer of the
equitable ownership interest pursuant to this Section 2(e) shall be subject to Section 32(b).
(f) During the course of his employment with Hanmi, Xx. Xxxx was granted options to acquire
shares of Hanmi’s common stock totaling three hundred fifty thousand (350,000) shares subject to
certain terms and conditions. Only one hundred sixteen thousand six hundred sixty-seven (116,667)
shares (the “Vested Stock Options”) of these stock options are currently vested. The Parties
hereby agree that Hanmi shall purchase the Vested Stock Options
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from Xx. Xxxx for the price of Sixty Cents ($.60) per share, for a total purchase price of
Seventy Thousand Dollars and 20/100s ($70,000.20). Xx. Xxxx shall receive a cash payment in the
amount of $70,000.20 representing payment of the purchase price for the Vested Stock Options within
seven (7) days after the Effective Date, the actual date of payment to be determined in the sole
discretion of Hanmi. The Parties acknowledge and agree that no other stock options granted by
Hanmi to Xx. Xxxx will have vested on or prior to the Severance Date and all vesting of stock
options granted to Xx. Xxxx by Hanmi will terminate on the Severance Date. Accordingly, Xx. Xxxx
shall not be entitled to any stock options or other benefit under any Hanmi stock options plan(s)
after the Severance Date.
(g) Pursuant to the Employment Agreement, Xx. Xxxx received stock bonus awards totaling one
hundred thousand (100,000) restricted shares of Hanmi common stock (the “Restricted Stock”). All
but forty thousand (40,000) of these shares of Restricted Stock are currently vested. The 40,000
unvested shares of Restricted Stock shall vest effective as of the Severance Date. The Parties
acknowledge and agree that Xx. Xxxx shall retain all of his right, title and interest in and to the
Restricted Stock on and after the Severance Date, but that no new stock bonus awards shall be
granted to Xx. Xxxx after the Severance Date. Accordingly, Xx. Xxxx shall not be entitled to any
stock grants or other benefit under any Hanmi stock bonus plan(s) or agreement(s) other than the
Restricted Stock after the Severance Date.
(h) Hanmi will reimburse Xx. Xxxx for all business expenses incurred by Xx. Xxxx in
connection with his employment with Hanmi prior to the Severance Date, provided that Xx. Xxxx
timely and properly submits such expenses in accordance with Hanmi’s normal business expense
reimbursement policy.
All tax and other amounts which Hanmi is required to withhold or deduct will be deducted from the
payments to Xx. Xxxx under this Agreement. Except as described in Sections 2 (a-h), Xx. Xxxx’x
eligibility for, coverage under, and participation in all retirement, savings, welfare, fringe
benefit, compensation and bonus plans shall terminate on the Severance Date. The above benefits
shall continue to be payable and/or enforceable regardless of Xx. Xxxx’x death or disability, and
the provisions of this Section 2 shall be enforceable by Xx. Xxxx’x heirs and/or personal
representatives, as applicable. Upon Xx. Xxxx’x disability, payments due hereunder shall be made
to Xx. Xxxx or, in the event a legal guardian has been appointed for Xx. Xxxx, to such legal
guardian (in Hanmi’s discretion), and, upon Xx. Xxxx’x death, payment shall be made to Xx. Xxxx’x
estate, in such manner and at such times as set forth in this Section 2.
3. NO FURTHER OBLIGATION. Xx. Xxxx acknowledges and agrees that the monies and
benefits set forth in Section 2 represent good, valuable and sufficient consideration for the
mutual promises and duties set forth in this Agreement.
(a) In consideration for the payments and transfer of the Bank’s interests in the automobile
and club memberships being provided to him above, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and subject to the provisions of Section
4(b) below, Xx. Xxxx, for himself and for his attorneys, heirs, executors,
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administrators, successors and assigns, fully, finally and forever releases and discharges
Hanmi and the Bank, and all of their parent, subsidiary and/or affiliated companies, as well as
their successors, assigns, officers, directors, agents, representatives, attorneys, stockholders,
insurers, employees and employee benefit plans or programs (and the trustees, administrators,
fiduciaries, and insurers of such plans or programs), and any other person acting by, through,
under, or in concert with any of the persons or entities listed in this section (collectively, the
“Hanmi Releasees”), of and from any and all liability, claims, demands, actions, obligations,
causes of action, suits, grievances, damages, losses, and expenses, of any and every nature
whatsoever, known or unknown, at law or in equity, suspected or unsuspected, anticipated or
unanticipated, which Xx. Xxxx may have had, claims to have had, or now has or claims to have, which
are or may be based on any facts, acts, conduct, documents, representations, omissions, contracts,
deferred compensation plans, claims, events or other things occurring at any time on or before the
date of this Agreement and arising out of or relating to Xx. Xxxx’x employment with or separation
from Hanmi and the Bank. It is understood that, subject to the provisions of Section 4(b) below,
this Release includes, but is not limited to all claims, actions or causes of action that were or
could have been asserted during the negotiations over this Agreement, any claims, actions or causes
of action that were or could have been asserted before any administrative agency or in court, as
well as any claims, actions, or causes of action for fraud, misrepresentation, defamation,
discrimination or harassment in any form, retaliation, any claims under any federal, state, local
or other governmental statute or ordinance, including, without limitation, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the Older
Workers Benefit Protection Act, the Age Discrimination in Employment Act of 1967, the Family and
Medical Leave Act of 1993, the California Fair Employment and Housing Act, and any and all other
federal, state or local statutes, rules, ordinances, or regulations; any and all claims for alleged
wrongful discharge, retaliation, negligent or intentional infliction of emotional distress, and
breach of contract; any and all claims for compensation, bonuses, commissions, lost wages, stock or
stock options, or unused accrued vacation or sick pay; any and all claims for severance or similar
benefits or to post-employment health or group insurance benefits; any and all claims for
attorneys’ fees, costs or indemnification; and any and all other claims resulting from any alleged
unlawful behavior or conduct by any Hanmi Releasee, the existence of which is specifically denied
by the Hanmi Releasees.
(b) Notwithstanding the foregoing, nothing in this Agreement is intended to waive or otherwise
modify Xx. Xxxx’x right to (i) enforce this Agreement, (ii) pursue claims that cannot by statute or
otherwise be released by private agreement, (iii) seek indemnification from Hanmi or any subsidiary
or other affiliate thereof for claims made as a result of his serving or having served as an
officer or director of Hanmi, to the extent such indemnification is provided to Xx. Xxxx under that
certain Indemnity Agreement between Xx. Xxxx and Hanmi dated as of September 20, 2005 (the
“Indemnity Agreement”), the Articles of Incorporation or Bylaws of Hanmi, or by applicable law
(such indemnity shall not require payment as a condition precedent), (iv) enforce the Stock Bonus
Award Agreement dated February ___, 2005 (“the Stock Bonus Award Agreement”) evidencing the
Restricted Stock described in Section 2(g), or (v) receive any vested benefits payable to Xx. Xxxx
under the terms of Hanmi’s Deferred Compensation Plan or the Bank’s Profit Sharing and 401(k)
Savings Plan.
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(c) In consideration of Xx. Xxxx’x agreement to accept the terms and provisions of this
Agreement, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the provisions of Section 4(d) below, Hanmi, for itself, its
subsidiaries, affiliates, successors and assigns, fully, finally and forever releases and
discharges Xx. Xxxx, his heirs, executors, administrators and assigns, and any other person acting
by, through, under, or in concert with any of the persons or entities listed in this section (the
“Xxxx Releasees”), of and from any and all liability, claims, demands, actions, obligations, causes
of action, suits, grievances, damages, losses, and expenses, of any and every nature whatsoever,
known or unknown, at law or in equity, suspected or unsuspected, anticipated or unanticipated,
which Hanmi may have had, claims to have had, or now has or claims to have, which are or may be
based on any facts, acts, conduct, documents, representations, omissions, contracts, deferred
compensation plans, claims, events or other things occurring at any time on or before the date of
this Agreement and arising out of or relating to Xx. Xxxx’x employment with or separation from
Hanmi. It is understood that this Release includes, but is not limited to all claims, actions or
causes of action that were or could have been asserted during the negotiations over this Agreement,
any claims, actions or causes of action that were or could have been asserted before any
administrative agency or in court, the existence of which is specifically denied by the Xxxx
Releasees.
(d) Notwithstanding the foregoing, nothing in this Agreement is intended to waive or otherwise
modify and Hanmi does not release (i) any claims to enforce this Agreement or any agreement that
remains in full force and effect under Section 15, (ii) any claims against Xx. Xxxx or the Xxxx
Releasees resulting from any fraud, misappropriation, embezzlement or other illegal act by Xx. Xxxx
or Xx. Xxxx’x intentional or reckless violation of any federal, state or local statute, rule, or
regulation, or (iii) claims that cannot by statute or otherwise be released by private agreement.
For the purpose of implementing full and complete releases and discharges as set forth in
Section 4, the Parties expressly acknowledge that this Agreement is intended to include in its
effect, without limitation, all claims which the Parties do not know or suspect to exist at the
time they sign the Agreement, and that the Agreement contemplates the extinguishment of any such
claim or claims, except as expressly provided in Section 4. The Parties acknowledge and agree that
all of their rights under Section 1542 of the Civil Code of California are hereby expressly waived.
Said section reads 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.”
6. NO CLAIMS PREVIOUSLY MADE OR ASSIGNED TO OTHERS. Xx. Xxxx and Hanmi, respectively,
represent that neither they nor anyone on their behalf has filed, nor assigned to others the right
to file, nor are there currently pending by Xx. Xxxx or Hanmi or anyone on their behalf, any
complaints, charges or lawsuits against the Hanmi Releasees or the
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Xxxx Releasees (as the case may be), or any of them, with any governmental agency, any court or
with or in any other forum, and that neither Xx. Xxxx nor Hanmi nor anyone on their behalf will
file, assign to others the right to file, or make any further claims against the Hanmi Releasees or
the Xxxx Releasees (as the case may be), or any of them, at any time for any alleged acts or
omissions covered by the releases in Section 4 above. The Parties agree that in the event they (or
anyone on their behalf) assert any claim or file any complaint, charge or lawsuit, or any of them,
that is covered by the releases in Section 4 above, such party waives any monetary recovery or
other individual relief in such action and shall pay all of the attorneys’ fees, expenses and costs
incurred by the defending party in responding to such claim, complaint or action; provided,
however, that nothing in this Agreement shall prohibit or impose any liability on either party for
filing a charge or complaint with, or participating in any investigation by, any governmental
agency.
7. NON-DISPARAGEMENT. Xx. Xxxx agrees that he will not criticize, denigrate or
otherwise disparage Hanmi or any other Hanmi Releasee (including, without limitation, Hanmi and the
Bank’s past or present agents, officers, directors, representatives or employees), or any of
Hanmi’s products, services, policies, procedures, practices, business ethics, standards of business
conduct, methods or manner of doing business or financial performance, to anyone, including,
without limitation, members of the media, regulators, analysts and governmental agencies, or to
Hanmi’s customers, employees, vendors, shareholders, investors or competitors, or make any other
statements to any such persons that reasonably would be expected to impair the goodwill or
reputation of Hanmi or any other Hanmi Releasee. Hanmi agrees that the members of the Boards of
Directors of Hanmi and the Bank, and the corporate officers of Hanmi and the Bank, will not
criticize, denigrate or otherwise disparage Xx. Xxxx or any other Xxxx Releasee to anyone,
including, without limitation, members of the media, regulators, analysts and governmental
agencies, or to Hanmi’s customers, employees, vendors, shareholders, investors or competitors, or
make any other statements to any such persons that reasonably would be expected to impair the
reputation of Xx. Xxxx or any other Xxxx Releasee.
8. NO KNOWLEDGE OF UNLAWFUL CORPORATE CONDUCT. The Parties each confirm that they are
not aware of any activities engaged in or directed by Hanmi or the Bank, or their officers and/or
directors (including Xx. Xxxx), including but not limited to financial reporting practices, which
either of the Parties believes to have been unlawful or an intentional or reckless violation of any
federal, state or local statute, rule, or regulation.
9 NON-ADMISSION OF LIABILITY OR WRONGFUL CONDUCT. Hanmi and Xx. Xxxx agree that the
payments made and other consideration received pursuant to this Agreement shall not be construed as
an admission by any Hanmi Releasee or Xxxx Releasee of any legal liability or acts of wrongdoing or
discrimination on the part of Hanmi or of any legal liability, acts of wrongdoing or poor
performance on the part of Xx. Xxxx; nor shall it be used as evidence or an admission by any Hanmi
Releasee or Xxxx Releasee of such liability, wrongdoing, poor performance or discrimination.
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(a) Hanmi and Xx. Xxxx agree as a matter of intent that as of the Severance Date, this
Agreement terminates all aspects of the employment relationship between them. As part of an
amicable resolution to the employment relationship between the Parties, Xx. Xxxx acknowledges that
he does not and will not seek reinstatement, future employment, or return to active employee status
with Hanmi or its corporate affiliates, subsidiaries, successors or assigns. Xx. Xxxx further
acknowledges that Hanmi shall not be under any obligation whatsoever to consider him for
reinstatement, employment, reemployment or other similar status at any time. Xx. Xxxx further
agrees that no Hanmi Releasee shall be liable for any damages now or in the future because it
refuses to employ Xx. Xxxx for any reason whatsoever. Should Xx. Xxxx apply for such employment, or
should he be offered such employment, Xx. Xxxx agrees that the offer of employment may be revoked,
or he may be denied employment or terminated, without cause or recourse. The provisions set forth
in this section may only be waived or modified by a writing signed by the Parties expressly
referencing this section.
(b) Xx. Xxxx shall resign as Chief Executive Officer and President of Hanmi and as Chief
Executive Officer and President of the Bank and any and all other positions he may hold with Hanmi
or the Bank effective on the Severance Date. Xx. Xxxx shall have no authority to enter agreements
or otherwise bind Hanmi or the Bank after the Severance Date. Effective on the Severance Date,
Xx. Xxxx shall resign from Hanmi’s Board of Directors and from the Bank’s Board of Directors, and
from any and all boards of directors of Hanmi owned or controlled business entities.
(c) Xx. Xxxx acknowledges, understands, and agrees that within three (3) business days from
the Severance Date, he must return all files, memoranda, records, company credit cards, company
manuals, computer equipment, computer software, and any other equipment or documents (including all
copies and excerpts), and all other physical or electronic property of similar type that he
received from Hanmi or the Bank and/or that he used in the course of his employment with Hanmi and
the Bank (except that Xx. Xxxx shall be entitled to retain his cellular telephone, printer and
laptop computer).
11. CONFIDENTIALITY. The nature and terms of, and the circumstances surrounding the
execution of this Agreement are strictly confidential and have not been and shall not be disclosed
by Xx. Xxxx or Hanmi at any time to any person except to each party’s legal counsel, accountants
and tax advisors or, in the case of Xx. Xxxx his immediate family without the prior written consent
of an officer of Hanmi (in the case of disclosures by Xx. Xxxx) or the prior written consent of Xx.
Xxxx (in the case of disclosures by Hanmi), The Parties agree that they will disclose the nature
and terms of, and the circumstances surrounding the execution of this Agreement, to their
respective legal counsel, accountants, tax advisors or (in the case of disclosures to Xx. Xxxx)
spouse only if the person is informed of and agrees to honor this confidentiality requirement.
Such a person’s violation of this confidentiality requirement will be treated as a violation of
this Agreement by the party making the disclosure to such person. However, notwithstanding the
foregoing, disclosures otherwise prohibited by this section are permitted as required by applicable
law and as may be necessary in any legal proceedings directly related to the provisions and terms
of this Agreement, to prepare and file income tax forms, pursuant to court order after reasonable
notice to the other party, or in response to a disclosure made by the other party. Notwithstanding
the foregoing, however, nothing in this Agreement is intended to preclude Hanmi from complying with
any of its regulatory compliance
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obligations. As such, Xx. Xxxx agrees that Hanmi may file this Agreement with the Securities
and Exchange Commission and make such disclosure regarding it as Hanmi believes is required by
applicable law.
12. DIRECTOR AND OFFICER LIABILITY INSURANCE. After the Severance Date, Xx. Xxxx will
continue to be covered under Hanmi’s director and officer liability insurance for the period that
Xx. Xxxx was an officer and director of Hanmi to the extent set forth under the director and
officer liability insurance contract in effect as of the Severance Date.
13. GOVERNING LAW AND INTERPRETATION. This Agreement shall be interpreted under the
laws of the State of California without regard to principles of conflicts of law. This Agreement
is deemed to have been drafted jointly by the Parties. This Agreement shall be construed as a
whole according to its fair meaning and any uncertainty or ambiguity shall not be construed
strictly for or against either party based on attribution of drafting to any party.
14. SEVERABILITY. It is the intent of the Parties that the provisions of this
Agreement (and any surviving provisions of the Employment Agreement) shall be enforced to the
fullest extent permitted by law. Accordingly, if any particular section(s), subsection(s) or
portion(s) of this Agreement or the Employment Agreement shall be held invalid or unenforceable as
written, such section(s), subsection(s) or portion(s) shall be modified to the extent necessary to
be valid or enforceable. Such modification shall not affect the remaining provisions of this
Agreement. To the extent any section(s), subsection(s) or portion(s) of this Agreement or the
Employment Agreement are found invalid or unenforceable and cannot be modified to be valid or
enforceable, then the Agreement or the Employment Agreement shall be construed as if that
section(s), subsection(s) or portion(s) were deleted, and all remaining terms and provisions shall
be enforceable in law or equity in accordance with their terms.
15. SOLE AND ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between
the Parties. Any prior agreements between or directly involving the Parties to the Agreement are
superseded by the terms of this Agreement and thus are rendered null and void, except for
(a) Sections 3, 5, 6, 7 and 8 (as modified in this Agreement) of the Employment Agreement (a true
and correct copy of which is attached hereto and incorporated herein as Exhibit A) which shall
remain in full force and effect; (b) the Indemnity Agreement (a true and correct copy of which is
attached hereto and incorporated herein as Exhibit B) which shall remain in full force and effect;
(c) the Stock Bonus Award Agreement (a true and correct copy of which is attached hereto and
incorporated herein as Exhibit C) which shall remain in full force and effect to the extent
provided in Section 2(g); and (d) that certain Hanmi Financial Corporation and Hanmi Bank
Confidentiality Agreement between Xx. Xxxx and Hanmi dated as of October 15, 2005 (the
“Confidentiality Agreement”) (a true and correct copy of which is attached hereto and incorporated
herein as Exhibit D).
16. NO ORAL MODIFICATION. No amendments or modifications of this Agreement shall be
valid or binding upon the Parties unless made in writing and signed by the Parties hereto.
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17. NO OTHER PROMISES. Xx. Xxxx affirms that the only consideration for Xx. Xxxx’x
signing this Agreement is that set forth in this Agreement, that no other promise or agreement of
any kind has been made to or with him by any person or entity to cause him to execute this
document, and that he fully understands the meaning and intent of this Agreement, including but not
limited to, its final and binding effect.
18. LEGALLY BINDING AGREEMENT. Xx. Xxxx understands and acknowledges: (1) that this
is a legally binding release; (2) that by signing this Agreement, he is hereafter barred from
instituting claims against Hanmi in the manner and to the extent set forth in Sections 4 , 5 and 6
above; and (3) that this Agreement is final and binding.
19. LEGAL EFFECT OF AGREEMENT. The Parties hereto acknowledge that they have read
this Agreement and have been afforded an opportunity to have it fully explained to them by counsel
of their own choice, and that they are fully aware of the contents of this Agreement and of its
legal effect. This Agreement may be pleaded as a full and complete defense to, and may be used as
the basis for an injunction against, any action, suit or other proceeding which may be instituted,
prosecuted or attempted in breach of this Agreement.
(a) Xx. Xxxx acknowledges and agrees that he is solely responsible for all tax obligations, if
any, which may arise as a consequence of this Agreement, and acknowledges and agrees that neither
Hanmi nor the Bank has made representations to him regarding the tax consequences of any amounts
received by him pursuant to this Agreement. Xx. Xxxx covenants to pay federal and state taxes, if
any, that may become due and owing on account of the payment to him of any amounts pursuant to this
Agreement. Should any governmental entity make any claim or assessment against Hanmi or the Bank
for any amount the entity contends should have been deducted from what was paid to Xx. Xxxx or paid
as part of Xx. Xxxx’x tax liability, including but not limited to, any employee deductions under
FICA (Social Security), state or federal unemployment tax, or state or federal income tax, Xx. Xxxx
expressly agrees to indemnify and hold harmless Hanmi and the Bank from any such amount and any
cost, assessments, fines, penalties, interest, attorneys’ fees or other damages or expenses
reasonably incurred by Hanmi and the Bank in connection with such claim or assessment.
(b) Xx. Xxxx warrants, represents and agrees that he is not relying on the advice of Hanmi or
any of the Hanmi Releasees (as defined above) as to the legal, income tax or other consequences of
any kind arising out of this Agreement. Accordingly, Xx. Xxxx hereby releases and holds the Hanmi
and the other Hanmi Releasees harmless from all claims, causes of action or other rights of any
kind which Xx. Xxxx might otherwise be able to assert because the legal, income tax or other
consequences of this Agreement prove to be other than those which Xx. Xxxx anticipated.
(a) Xx. Xxxx agrees that he shall make himself available as reasonably requested by
Hanmi to assist Hanmi in any investigations, litigation, arbitration, administrative hearings or
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other legal matters in which Xx. Xxxx is named as a party or has knowledge relevant to the matter.
Xx. Xxxx acknowledges and agrees that such assistance may include, but shall not be limited to,
providing information or documents, providing declarations or statements to Hanmi or the Bank,
meeting with attorneys or other representatives of Hanmi or the Bank, preparing for and giving
depositions or testimony, and/or otherwise reasonably cooperating in the investigation, defense or
prosecution of such matters. Xx. Xxxx further acknowledges and agrees that the services and
advice to be performed by him hereunder may require that he be available to appear at various
locations to consult with Hanmi or the Bank’s employees or attorneys and to appear at various
hearings in which Hanmi, the Bank and/or Xx. Xxxx may be named as a party. Xx. Xxxx hereby
covenants that he shall use his best efforts to make himself available to attend such meetings or
hearings as reasonably requested by Hanmi. To the extent Xx. Xxxx voluntarily cooperates at
Hanmi’s request pursuant to this Section 21(a) after the Severance Date, Hanmi or the Bank shall
pay Xx. Xxxx at a daily rate of Two Thousand Five Hundred and no/100s ($2,500.00), plus any
reasonable lodging and/or travel expenses actually incurred.
(b) Unless compelled to do so by valid subpoena, court order or other valid government action
with jurisdiction over the matter (“Court Action”), Xx. Xxxx also promises not to encourage,
counsel or assist (directly or indirectly) any third party in the preparation or prosecution of any
civil disputes, differences, grievances, claims, charges or complaints against any of the Hanmi
Releasees. In the event Xx. Xxxx receives notice that he is required to provide testimony or
information in any context about Hanmi or the Bank to any third-party, Xx. Xxxx agrees to inform
Xxxxxxx X. X. Xxx, Chairman of the Board or such other person who is then Chairman of the Board of
Hanmi in writing of such notice within seventy-two (72) hours of receiving the notice, unless
prohibited by Court Action. Xx. Xxxx, thereafter, agrees to cooperate with the reasonable requests
of Hanmi in responding to (if necessary) such legal process.
(c) Each of the Parties shall provide reasonable cooperation to one another to carry out the
terms hereof and shall execute whatever further documents are reasonably necessary to effectuate
the same.
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(a) The Parties agree to jointly issue a press release (the “Press Release”) concerning the
reasons for Xx. Xxxx’x departure from Hanmi. (A true and correct copy of the press release
language agreed upon by the Parties is attached hereto as Exhibit E.) The Parties have agreed
upon the wording of the Form 8-K (the “Form 8-K”) to be filed by Hanmi with the Securities and
Exchange Commission relating to Xx. Xxxx’x departure. (A true and correct copy of the Form 8-K
language agreed upon by the Parties is attached hereto as Exhibit F.)
(b) In any public communication regarding the reason for Xx. Xxxx’x departure, each of the
Parties agrees that they will communicate substantially the substance of the Press Release. The
Parties shall each undertake reasonable steps to ensure that any material inquiries by
governmental, regulatory or taxing authorities regarding Xx. Xxxx’x departure from Hanmi are
directed to Xxxx Xxxxx, the Chairman of Hanmi’s Internal Audit Committee or such other person who
is then Chairman of Hanmi’s Internal Audit Committee.
(c) Xx. Xxxx shall direct future prospective employers to contact Xxxx Xxx, Senior Vice
President of Human Resources or if she no longer occupies that position, the person occupying the
position of Vice President of Human Resources, for information regarding his former employment with
Hanmi. If contacted by any prospective employer, Xx. Xxx shall communicate only the following: (i)
substantially the substance of the Press Release concerning the reasons for Xx. Xxxx’x departure
from Hanmi; and (ii) the dates of Xx. Xxxx’x employment, the position(s) he held, and (if
requested in writing by Xx. Xxxx) his salary at the time of separation.
23. LIQUIDATED DAMAGES. The Parties to this Agreement recognize the delays, expenses
and difficulties involved in proving, in a legal proceeding, the actual damages or losses suffered
for any breach of Sections 7 or 11 of this Agreement. Accordingly, instead of requiring any such
proof, the Parties agree that, as liquidated damages (but not as a penalty) for each and every
breach of either Section 7 or Section 11 of this Agreement, the breaching party shall pay the other
party the sum of Two Hundred Fifty Thousand Dollars and no/100s ($250,000). This shall be a
party’s sole and exclusive remedy against the other party for breach of either Section 7 or Section
11 of this Agreement. Neither the breach of Section 7 or Section 11 of this Agreement nor the
payment of liquidated damages by either party shall affect the validity of this Agreement or the
releases herein. In any action relating to this liquidated damages provision, the prevailing party
shall be entitled to recover their reasonable attorneys’ fees and costs.
Initials:
(a) Xx. Xxxx represents and warrants that he will comply with the obligations of
confidentiality imposed by California’s Business & Professions Code § 6068 and the attorney-client
privilege as defined by applicable rules and laws, including but not limited to, statutes,
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case law or professional rules of conduct, which are now in effect or which may become
applicable. Xx. Xxxx also represents and warrants that Section 1102.5(g) of the California Labor
Code is applicable to the confidentiality obligations arising out of his employment at Hanmi and
the Bank as well as those imposed by this Agreement, the Employment Agreement and the
Confidentiality Agreement.
(b) Xx. Xxxx understands and agrees that during the course of his employment with Hanmi and
the Bank, he became acquainted with proprietary confidential business information and trade secrets
including customer lists, prospect information, business plans, technology advances and the skills
of key personnel. Hanmi and the Bank have committed substantial resources, financial and
otherwise, to develop this confidential business information and to promote and increase its
goodwill. This information was communicated to Xx. Xxxx in confidence because of his status with
Hanmi and the Bank. Xx. Xxxx understands and agrees that he has a continuing statutory and
fiduciary obligation to protect confidential business information obtained during his employment.
Xx. Xxxx further understands that any violation of these obligations would cause irreparable harm
to Hanmi and the Bank and would be appropriate actions for injunctive relief.
(c) Xx. Xxxx understands and agrees that the Confidentiality Agreement shall remain in full
force and effect after the Severance Date. Xx. Xxxx understands and agrees that he will continue
to be bound by his obligations under that agreement after the Severance Date.
(d). Xx. Xxxx shall remain affiliated with Hanmi as an internal consultant through December
31, 2009 in exchange for which Xx. Xxxx shall be paid Six Thousand Dollars ($6,000.00) per month
(paid consistent with Hanmi’s normal payroll practices). During this period, Xx. Xxxx will be
available to Hanmi on an as—needed basis, but for no more than fifteen (15) hours per month, to
assist Hanmi with such business and administrative matters as Hanmi may reasonably request. Xx.
Xxxx shall have no other responsibilities. Xx. Xxxx agrees that during this period he will (i) not
engage, as an officer, director, employee or consultant of or for any Korean or Chinese commercial
bank headquartered within the State of California, or (ii) not engage, as an officer, director,
employee or consultant of or for any other commercial bank which has a business unit (or be
involved in the formation of such a business unit) the primary activity of which is marketing
commercial banking services to the Korean population resident in the United States. To the extent
not otherwise prohibited by this Section 24(d), nothing in this paragraph is intended to prohibit
Xx. Xxxx from working for a Korean bank between the Effective Date and December 31, 2009.
25. ARBITRATION. Any unresolved dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration, conducted before a single
arbitrator in Los Angeles, California, in accordance with the rules of the JAMS, Inc. then in
effect. The arbitrator shall not have the authority to add to, detract from, or modify any
provision hereof nor to award punitive damages to any injured party. The arbitrator shall have the
authority to order compensatory damages, vesting of options (or cash compensation in lieu of
vesting of options), reimbursement of costs, including those incurred to enforce this Agreement,
and interest thereon. A decision by the arbitrator shall be final and binding. Judgment may be
entered on the arbitrator’s award in any court having jurisdiction. Each party shall pay the fees
of its respective attorneys, the expenses of its witnesses and any other expenses connected with
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the arbitration, but all other costs of the arbitration, including the fees of the arbitrator,
cost of any record or transcript of the arbitration, administrative fees and other fees and costs
shall be paid in equal shares by Xx. Xxxx and Hanmi. The party losing the arbitration shall
reimburse the party who prevailed for all fees and expenses the prevailing party paid pursuant to
the preceding sentence. Notwithstanding the foregoing, either party may seek injunctive relief in
a court of competent jurisdiction for any breach or threatened breach by the other party of its
obligations under this Agreement, including those obligations set forth in Sections 7, 11 and 24,
for which injunctive relief may be available either under this Agreement or applicable law.
26. FEES AND EXPENSES. Hanmi shall pay Xx. Xxxx’x reasonable attorneys’ fees and
costs incurred in connection with the negotiation, preparation and execution of this Agreement not
to exceed Seventeen Thousand Five Hundred Dollars and no/100s ($17,500.00).
27. REVOCABILITY. In compliance with the Older Workers Benefit Protection Act (P.L.
101433), Xx. Xxxx does hereby acknowledge and agree as follows:
(a) This Agreement does not purport to waive rights or claims that may arise from acts or
events occurring after the date that this Agreement is executed by the Parties;
(b). This Agreement specifically applies to any rights or claims Xx. Xxxx may have against
Hanmi under the federal Age Discrimination in Employment Act of 1967;
(c) The consideration provided for in this Agreement is in addition to that to which Xx. Xxxx
is already entitled;
(d) This Agreement shall be revocable by Xx. Xxxx (by giving written notice of such revocation
to counsel for Hanmi, Xxxxx X. Xxx Xxxxx, c/o McGuireWoods LLP, 0000 Xxxxxxx Xxxx Xxxx,
0xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, fax number 000-000-0000), for a seven (7) day
period following execution of this Agreement by Xx. Xxxx. Accordingly, this Agreement shall not
become effective or enforceable any earlier than the expiration of the seven (7) day revocation
period; and
(e) Xx. Xxxx, having carefully read this Agreement and knowing the contents hereof, freely and
voluntarily consents to all the terms and conditions herein, understands the final and binding
effect of this Agreement, has been advised of his right to and been given a chance to consult with
and review this Agreement with an attorney of his choice prior to signing this Agreement, and has
been given a period of twenty-one (21) days within which to consider whether to sign this
Agreement. In the event that Xx. Xxxx chooses to waive this 21 day period, he acknowledges that he
was given a reasonable period of time within which to consider this Agreement and that his waiver
was made freely and voluntarily and without duress or any coercion by any other person, including
anyone at Hanmi.
28. HEADINGS. The headings included in this Agreement are for convenience only and do
not in any way limit, alter, or otherwise affect the matters contained in this Agreement or the
paragraphs set forth herein.
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29. COUNTERPARTS. This Agreement may be executed in counterparts, including copies
transmitted via facsimile and electronic mail, each of which shall be deemed to be an original, and
all of which together shall be deemed one and the same instrument. Signatures transmitted by
facsimile and electronic mail shall have the same force and effect as original signatures.
30. NOTICES. All notices, requests, demands and other communications (“Notices”)
hereunder shall be in writing addressed as follows:
| If to Hanmi: | Hanmi Financial Corporation Attention: Xxxx Xxx Senior Vice President 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx X Xxx Xxxxxxx, Xxxxxxxxxx 00000 |
|||||
| If to Xx. Xxxx: | Xx. Xxxx Won Xxxx 000 X. Xxxxxxxx Xxxxxx Xxx Xxxxxxx, Xxxxxxxxxx 00000 |
|||||
| Copies of Notices shall be sent to: | ||||||
| Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP Attention: Xxxxxx X. Xxxxx, Esq. 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxx 0000 Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000 |
||||||
Notice shall be deemed given and effective upon the occurrence of (i) the signing by the
recipient of an acknowledgement of receipt form accompanying delivery through the U.S. mail sent by
certified mail, return receipt requested, (ii) personal service by a process server, or (iii)
delivery to the recipient’s address by overnight delivery (e.g., FedEx, UPS, or DHL) or other
commercial delivery service. Either party may change the address for notice by notifying the other
party of such change in accordance with this Section 30.
31. REPRESENTATIONS. Hanmi hereby represents and warrants to Xx. Xxxx as follows:
(a) Hanmi is duly organized, validly existing and in good standing under the laws of the State
of Delaware; and
(b) Hanmi has the power and authority to execute, deliver and perform its obligations under
this Agreement; the execution, delivery and performance of this Agreement have been duly authorized
by all necessary action on the part of Hanmi; this Agreement has been duly executed and delivered
by a duly authorized officer of Hanmi and constitutes the legal, valid and binding agreement of
Hanmi, enforceable in accordance with its terms.
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(a) The intent of the Parties is that payments and benefits under this Agreement comply with
Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder
(collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this
Agreement shall be interpreted to be in compliance therewith.
(b) If Xx. Xxxx is deemed on the date of “separation from service” to be a “specified
employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any
payment or the provision of any benefit that is specified as subject to this Section, such payment
or benefit shall be made or provided at the date which is the earlier of (A) the expiration of the
six (6) month period measured from the date of such “separation from service” of Xx. Xxxx, and (B)
the date of Xx. Xxxx’x death (the “Delay Period”). Upon the expiration of the Delay Period, all
payments and benefits delayed pursuant to this Section 32(b) (whether they would have otherwise
been payable in a single sum or in installments in the absence of such delay) shall be paid or
reimbursed to Xx. Xxxx in a lump sum, and any remaining payments and benefits due under this
Agreement shall be paid or provided in accordance with the normal payment dates specified for them
herein.
(c) To the extent that the time and form of payments specified hereunder would be considered
a change in the time and form of payments of deferred compensation provided by the Employment
Agreement, the Parties intend that the transition rules of IRS Notice 2007-86 apply (as an election
or amendment to change a time and form of payment made on or after January 1, 2007 and on or before
December 31, 2007 for amounts not otherwise payable in 2007 and do not cause an amount to be paid
in 2007 that would not otherwise payable in 2007).
PLEASE READ CAREFULLY. BY SIGNING BELOW, YOU ATTEST THAT YOU HAVE READ THIS AGREEMENT AND THAT YOU
UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS YOU MAY HAVE OR
MAY HAVE HAD AGAINST THE OTHER PARTY TO THIS AGREEMENT.
| Date: December 27, 2007 | /s/ Sung Won Xxxx | |||
| Xx. Xxxx Won Xxxx | ||||
| HANMI FINANCIAL CORPORATION |
||||
| Date December 27, 2007 | By: | /s/ Xxxxxxx B. C. Xxx | ||
| Xxxxxxx X. X. Xxx | ||||
| Chairman of the Board | ||||
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APPROVED AS TO FORM:
| DATED: December 27, 2007 | XXXXXXXXXXXX XXXX & XXXXXXXXX LLP |
|||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Xxxxxx X. Xxxxx | ||||
| Attorneys for Xx. Xxxx Won Xxxx | ||||
| DATED: December 27, 0000 | XXXXXXXXXXXX LLP |
|||
| By: | /s/ Xxxxx X. Xxx Xxxxx | |||
| Xxxxx X. Xxx Xxxxx | ||||
| Attorneys for Hanmi Financial | ||||
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