Exhibit 10.33
RELEASE AGREEMENT
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This Release Agreement ("Agreement"), dated as of September 21, 1998,
is made by and among BANK PLUS CORPORATION, a Delaware corporation ("Bank
Plus"), FIDELITY FEDERAL BANK, A FEDERAL SAVINGS BANK ("Fidelity"; together with
Bank Plus and their respective direct and indirect subsidiaries, the "Company"),
and XXXXXXX X. XXXXXXXXX ("Employee").
R E C I T A L S
A. By mutual agreement, Employee's active employment with the Company
will end effective September 21, 1998, pursuant to the terms of a letter
agreement dated September 19, 1998 by and among Bank Plus, Fidelity and Employee
(the "Severance Agreement").
B. Pursuant to Sections 6 and 7 of the Severance Agreement, the Company
and Employee wish to resolve certain claims the parties may have arising out of
or related to Employee's employment by the Company.
C. Pursuant to Section 2 of the Severance Agreement, the parties hereto
have entered into a consulting agreement of even date (the "Consulting
Agreement").
NOW, THEREFORE, in consideration of the foregoing recitals and the
terms and conditions of this Agreement, the parties hereto agree as follows:
1. EMPLOYEE RELEASE. Employee (for himself, his agents, heirs,
successors, assigns, executors and/or administrators) does hereby and forever
release and discharge Bank Plus, Fidelity and their respective affiliated
corporations or entities, as well as the officers, directors, employees,
consultants, accountants, agents and attorneys and representatives of each of
them, past or present, from any and all causes of action, actions, judgments,
liens, debts, contracts, lawsuits, indebtedness, damages, losses, claims,
liabilities, rights, interests and demands of whatsoever kind or character,
known or unknown, suspected to exist or not suspected to exist, anticipated or
not anticipated, contingent or absolute, whether or not heretofore brought
before any state or federal court or before any state or federal agency or other
governmental entity, that Employee has or may have against any released person
or entity, by reason of any and all acts, omissions, events or facts occurring
or existing prior to the date hereof, including, without limitation, all claims
attributable to the employment of Employee, all claims attributable to the
termination of that employment, all claims arising under the Employment
Agreement (as defined in the Severance Agreement), the Bank Plus Agreement (as
defined in the Severance Agreement), or the letter agreement dated as of August
1, 1997 among the parties hereto relating to a change in control of Bank Plus
(the "CIC Agreement"), all claims asserting breach of an actual or implied
contract, and all claims arising under any federal, state or other governmental
statute, regulation or ordinance or common law, such as, for example and without
limitation, Title VII of the Civil Rights Act of 1964 which prohibits
discrimination on the basis of sex, race, color, national origin and religion,
the Civil Rights Act of 1866, the Age Discrimination in Employment Act which
prohibits discrimination on the basis of age over 40, the California Fair
Employment and Housing Act which prohibits discrimination on the basis of race,
religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, age over 40, and sex, the
California Labor Code, and wrongful termination claims; provided, however, that
the foregoing release and discharge shall not apply to those obligations
expressly recited to be performed hereunder, obligations contemplated under the
Severance Agreement, the Consulting Agreement, indemnity agreements between the
Company and Employee, agreements between the Company and Employee pursuant to
Bank Plus' Stock Option and Equity Incentive Plan or Deferred Compensation Plan,
or obligations under the Company's Retirement Income Plan or 401(k) plan.
In light of the intention of Employee (for himself, his agents, heirs,
successors, assigns, executors and/or administrators) that this release extend
to any and all claims of whatsoever kind or character, known or unknown,
Employee expressly waives any and all rights granted by California Civil Code
Section 1542 (or any other analogous federal or state law or regulation), and
does so understanding and acknowledging the significance and consequence of such
specific waiver of Section 1542. Section 1542 of the Civil Code of the State of
California states as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Thus, notwithstanding the provisions of Section 1542, and for the
purposes of implementing a full and complete release by Employee, Employee
expressly acknowledges that this Agreement is intended to include in its effect,
without limitation, all claims that Employee 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 such claim or claims.
2. COMPANY RELEASE. Each of Bank Plus and Fidelity does hereby and
forever release and discharge Employee, from any and all known causes of action,
actions, judgments, liens, debts, contracts, indebtedness, damages, losses,
claims, liabilities, rights, interests and demands of whatsoever kind or
character, which either Bank Plus or Fidelity has or may have against any
Employee, by reason of any and all acts, omissions, events or facts occurring or
existing prior to the date hereof that are known to Bank Plus or Fidelity,
including, without limitation, all known claims attributable to the employment
of Employee, all known claims attributable to the termination of that
employment, all known claims arising under the Employment Agreement (as defined
in the Severance Agreement), the Bank Plus Agreement (as defined in the
Severance Agreement), or the CIC Agreement, all known claims asserting breach of
an actual or implied contract, and all known claims arising under any federal,
state or other governmental statute, regulation or ordinance or common law;
provided, however, that the foregoing release and discharge shall not apply to
those obligations expressly recited to be performed hereunder, obligations
contemplated under the Severance Agreement, the Consulting Agreement, indemnity
agreements between the Company and Employee, agreements between the Company and
Employee pursuant to Bank Plus' Stock Option and Equity Incentive Plan or
Deferred Compensation Plan, or obligations under the Company's Retirement Income
Plan or 401(k) plan. Reference to known matters in the preceding sentence shall
be deemed to mean matters known to any director or member, as of the date
hereof, of the Executive Management Committee (in each case excluding Employee)
of Bank Plus or Fidelity.
3. INDEMNIFICATION OBLIGATIONS. Notwithstanding the foregoing, each of
Bank Plus and Fidelity hereby reaffirms its indemnification obligations to
Employee under the terms of its bylaws and its indemnity agreement with Employee
in effect on September 21, 1998.
4. NO ADMISSIONS. Nothing contained herein shall be construed as an
admission of any wrongdoing or liability whatsoever by Bank Plus, Fidelity or
Employee.
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5. ONE-TIME CASH PAYMENTS. The parties hereto acknowledge that the
Company has delivered to Employee the following payments:
o A check for Employee's salary earned from the last salary payment date
of September 11, 1998, up to and including September 21, 1998, in the
net amount of $6,766.43; and
o A check for Employee's accrued and unused vacation hours, up to and
including September 21, 1998, in the amount of $28,678.72.
Additionally, upon the expiration of the waiting period and
non-revocation of this Agreement by the Employee as described in Section 8
hereof, the Company shall pay to Employee, in full satisfaction of its
obligation under Section 1 of the Severance Agreement, a lump sum cash severance
payment of $200,080 less applicable deductions and withholding, resulting in a
net cash payment to Employee by check of $129,151.64. The foregoing description
of one-time cash payments is not intended to limit the other obligations of the
Company to Employee under the Severance Agreement or the Consulting Agreement.
6. CONFIDENTIALITY. As a member of senior management of the Company,
Employee has occupied a position of trust with respect to business information
of a secret or confidential nature. As a material provision of this Agreement,
Employee agrees to maintain in strictest confidence all confidential information
in trust for the Company, its successors and assigns. Employee agrees to not
misappropriate, disclose, or make available to anyone outside of the Company at
any time any confidential information or anything relating thereto, without the
prior written consent of Bank Plus, which consent may be withheld for any reason
or no reason at all. Employee represents that he has returned all copies of
information relating to the Company's businesses, prospects, or confidential
information (in whatever form, including, without limitation, computer diskettes
and hard drives) except as contemplated by the Consulting Agreement. Employee
will also surrender all other personal property of the Company in his
possession, including, without limitation, access cards and identification
badge.
As used herein, the term "confidential information" shall include,
without limitation, all: discounted cash flow analyses; valuations; cost basis
information regarding Fidelity's REO and other assets; matters involving the
operation of the Company's financial models; personal financial and biographical
information regarding directors, officers, employees and customers of the
Company; communications to and from regulatory agencies (including the Office of
Thrift Supervision, Federal Deposit Insurance Corporation, Securities and
Exchange Commission, Federal Home Loan Bank and any other federal or state
agency having regulatory oversight over Fidelity, Bank Plus, or any of their
respective subsidiary or affiliated entities); customer or trade lists;
financial data; trade secrets; marketing plans; marketing studies; training
manuals; software; strategic plans; formulas; and technical information of any
kind learned by Employee during his employment with the Company. The term
"confidential information" shall not include information that (i) is or becomes
available to the public other than as a result of a disclosure by you, (ii) was
within your knowledge from a source other than the Company or its
representative, or was independently developed by you, prior to its disclosure
to you by or on behalf of the Company, provided that such source is not bound by
a confidentiality agreement with the Company or its representative, or (iii)
becomes available to you on a non-confidential basis from a source other than
the Company, provided that such source is not bound by a confidentiality
agreement with the Company or its representative.
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7. ENTIRE AGREEMENT. This Agreement constitutes a single integrated
contract expressing, together with the Severance Agreement and the Consulting
Agreement, the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous oral and written
agreements and discussions with respect to the subject matter hereof. There are
no other agreements, written or oral, express or implied, between the parties
hereto, concerning the subject matter hereof, except as set forth herein and in
the Severance Agreement and the Consulting Agreement. This Agreement may be
amended or modified only by an agreement in writing.
8. WAITING PERIOD AND RIGHT OF REVOCATION. Employee acknowledges that
he is aware that and is hereby advised that he has the right to consider this
Agreement for twenty-one days before signing it, that he was first provided with
the basic terms of this Agreement in writing on September 19, 1998 prior to
receiving the full text of this Agreement and that if he signs this Agreement
prior to the expiration of twenty-one days, he is waiving this right freely and
voluntarily. Employee also acknowledges that he is aware of and is hereby
advised of his right to revoke this Agreement for a period of seven days
following the signing of this Agreement and that it shall not become effective
or enforceable until the revocation period has expired. To revoke this
Agreement, Employee must notify the Company within seven days of signing it.
9. ATTORNEY ADVICE. Employee acknowledges that he is aware of his right
to consult an attorney, that he has been advised to consult with an attorney,
and that he has consulted with an attorney of his choosing prior to signing this
Agreement.
10. UNDERSTANDING OF AGREEMENT. The parties hereto each state that each
has carefully read this Agreement, that each has had sufficient time and
opportunity to consider its terms and to obtain legal advice relating thereto,
that each fully understands its final and binding effect, that the only promises
made to each of the parties to sign this Agreement are those stated above, and
that each of the parties is signing this Agreement voluntarily.
Dated: September 30, 1998 /S/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
Dated: September 30, 1998 BANK PLUS CORPORATION
By /S/ XXXX XXXXX
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Dated: September 30, 1998 FIDELITY FEDERAL BANK, A FSB
By /S/ XXXX XXXXX
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