Exhibit 99.4
MUTUAL GENERAL RELEASE
This Mutual General Release ("Agreement") is made and entered into as
of this 5th day of January 2004 by and between Pacific Premier Bancorp, Inc., a
Delaware corporation ("PPBI") and Pacific Premier Bank ("Bank"), a federally
chartered savings bank, on the one hand, and Xxxx Xxxxxx ("Director"), on the
other hand, with reference to the following facts:
A. Director served as a director of PPBI and the Bank as a designee of
New Life Holdings, LLC ("NLH"), pursuant to Section 9.6 of that
certain Note and Warrant Purchase Agreement dated November 20, 2001
(the "Note and Warrant Purchase Agreement") between PPBI and NLH.
B. PPBI and NLH, by an Agreement and Mutual General Release of even date
herewith, have agreed to amend Section 9.6 of the Note and Warrant
Purchase Agreement, to, among other things, terminate the right of NLH
to designate directors to the Boards of PPBI and the Bank, and PPBI
and NLH desire that Director resign his directorships on the Boards of
PPBI and the Bank effective as of the date hereof, and Director
desires to resign his directorships on the Boards of PPBI and the Bank
effective as of the date hereof.
C. The parties hereto wish to provide for a general release of claims one
may have against the other through the date of execution of this
Mutual General Release.
NOW, THEREFORE, the parties hereto agree as follows:
1. Mutual General Release.
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(a) Except as otherwise expressly provided herein, Director hereby
releases and forever discharges PPBI, the Bank, and their
officers, directors, agents, affiliates, successors and assigns,
from any and all claims, debts, losses, covenants, agreements,
contracts, liabilities, demands, obligations, accounts, expenses,
actions, causes of action and suits, whether past, present or
future, known or unknown, at law or in equity, of whatever kind
or nature whatsoever (collectively, "Claims"), which Director now
has, owns, or holds, or has at any time heretofore had, owned or
held, or may at any time hereafter have, own or hold, by reason
of any fact, matter, cause or thing whatsoever from the beginning
of time to the date hereof, including, without limitation, any
and all matters arising from or in connection with any agreement
or alleged agreement between Director and PPBI or the Bank,
whether written or oral. The foregoing release shall not extend
to Director's rights to enforce the provisions of this Agreement.
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(b) Except as otherwise expressly provided herein, PPBI and the Bank
hereby release and forever discharge Director and his heirs,
personal representatives, successors and assigns, from any and
all Claims, which PPBI now has, owns, or holds, or has at any
time heretofore had, owned or held, or may at any time hereafter
have, own or hold, by reason of any fact, matter, cause or thing
whatsoever from the beginning of time to the date hereof,
including, without limitation, any and all matters arising from
or in connection with any agreement or alleged agreement between
Director and PPBI or the Bank, whether written or oral. The
foregoing release shall not extend to the rights of PPBI or the
Bank to enforce the provisions of this Agreement.
(c) Except as otherwise set forth herein, each party agrees that this
Agreement shall be effective as a full and final accord and
satisfaction and release of each and every matter hereinabove
referred to. In furtherance of this intention, each party
acknowledges that each party is familiar with Section 1542 of the
California Civil Code, which provides 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."
Except as otherwise set forth herein, each party waives and
relinquishes any rights and benefits which that party has or
may have under Section 1542 of the California Civil Code, to
the fullest extent permitted by law. In connection with such
waiver and relinquishment, each party acknowledges that any
party may hereafter discover claims or facts in addition to or
different from those which each party now knows or believes to
exist with respect to the subject matter of this Agreement,
but that it is each party's intention hereby fully, finally
and forever to settle and release any and all released
matters, disputes and differences, known or unknown, suspected
or unsuspected, which now exist, may exist, or heretofore have
existed, as set forth herein. In furtherance of such
intention, and except as otherwise expressly reserved herein,
the releases herein given shall be and remain in effect as
full and complete general releases, notwithstanding the
discovery or existence of any such additional or different
claims or facts.
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(d) Each party acknowledges and agrees that it has not assigned to
any third party any Claim or any interest in any Claim that it
has or at any time has had against any other party, and that it
has the full power and authority to enter into this Agreement and
the release of Claims included herein.
(e) Anything provided in this Section 1 to the contrary
notwithstanding, the Director shall not release PPBI and the Bank
from, and the Director shall continue to have, to the same extent
applicable to any continuing director of PPBI or the Bank, all
rights to indemnification from PPBI and/or the Bank related to
his services as a director of PPBI and/or the Bank, as such
indemnification rights are provided for under applicable law,
under any charter or by-law provision of PPBI or the Bank or
pursuant to any existing indemnification agreement between the
Director and PPBI and/or the Bank.
2. Miscellaneous.
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(a) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and
supersedes and replaces all prior negotiations, proposed
agreements and agreements, written or oral. The parties hereto
further agree that any amendment or modification to this
Agreement must be in writing, signed by both parties.
(b) This Agreement shall be binding up and inure to the benefit of
the parties hereto and their respective heirs, personal
representatives, successors and assigns.
(c) This Agreement has been entered into in the State of California
and its validity, construction, interpretation and legal effect
shall be governed by the laws of the State of California
applicable to contracts entered into and performed entirely
within the State of California.
(d) Should any litigation be commenced between the parties hereto or
their representatives or should any party institute any
proceeding in a bankruptcy or similar court which has
jurisdiction over any other party hereto or any or all of his or
its property or assets concerning any provision of this Agreement
or the rights and duties of any person or entity in relation
thereto, the party or parties prevailing in such litigation shall
be entitled, in addition to such other relief as may be granted,
to a reasonable sum as and for his or its or their attorneys'
fees and court costs in such litigation which shall be determined
by the court in such proceeding or in a separate action brought
for that purposes.
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(e) This Agreement may be executed in several counterparts, and all
so executed shall constitute one Agreement, binding on all
parties hereto, notwithstanding that all of the parties are not
signatories to the original or the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have set forth
their hands as of the date first above written.
/s/XXXX XXXXXX
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PACIFIC PREMIER BANCORP, INC.
By: /s/ XXXXXX X. XXXXXXX
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PACIFIC PREMIER BANK
By: /s/ XXXXXX X. XXXXXXX
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