Exhibit 10.a
GENERAL RELEASE AND SETTLEMENT AGREEMENT
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("AGREEMENT")
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For good and valuable consideration, receipt of which is hereby
acknowledged, and in order to resolve and settle finally, fully and completely
all matters or disputes that now or may exist between them, the parties agree as
follows:
1. PARTIES. The parties to this Agreement are Xxxxxx X. Xxxxxxxx, his
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heirs, representatives, successors and assigns (hereinafter referred to
collectively as "Xx. Xxxxxxxx") and Bank of America National Trust and Savings
Association, BankAmerica Corporation, and/or any of its or their subsidiaries or
affiliates (hereinafter referred to collectively as "Bank").
2. TIME TO SIGN AGREEMENT. Xx. Xxxxxxxx acknowledges and agrees he
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received the Agreement on or before March 14, 1997. Xx. Xxxxxxxx also
acknowledges and agrees he had at least twenty-one (21) calendar days from the
date he received the Agreement to decide whether to sign it. Xx. Xxxxxxxx
understands that for seven (7) calendar days after he signs this Agreement he
has the right to revoke it, and this Agreement shall not become effective and
enforceable until after the expiration of this seven day period. The Agreement
may not be revoked after the seven day period. Xx. Xxxxxxxx understands that he
will not be entitled to receive or retain any of the consideration provided by
this Agreement, except under Paragraphs 4 and 7, unless in addition to signing
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and returning the fully executed Agreement, he signs and returns Attachment A
confirming that he does not revoke the Agreement, and provided that Attachment A
is signed no fewer than eight (8) calendar days after Xx. Xxxxxxxx signs this
Agreement. Xx. Xxxxxxxx also understands and agrees that as an additional
condition to receiving or retaining the consideration provided for by this
Agreement (except under Paragraphs 4 and 7), Xx. Xxxxxxxx must execute and
return to Bank the Confirmation of General Release and Settlement Agreement,
attached as Attachment B, which may not be signed any earlier than one day after
the Resignation Date, as defined in Paragraph 3, below.
3. VOLUNTARY RESIGNATION. Xx. Xxxxxxxx hereby voluntarily tenders and
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Bank hereby accepts the voluntary resignation of Xx. Xxxxxxxx from all officer
positions and from his employment effective June 30, 1997, or such later date as
the Bank may designate, but no later than December 31, 1997 (the "Resignation
Date").
4. PAYMENTS TO BE MADE. In consideration of the promises of Mr.
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Xxxxxxxx as set forth herein, and without any other obligation to do so, the
parties agree that, within 15 business days of the Resignation Date, provided
that the Bank has received this fully
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executed Agreement, Bank will pay Xx. Xxxxxxxx the xxxxx sum of Forty-Five
Thousand Dollars ($45,000.00), less legal deductions for applicable taxes and
other withholdings.
5. BONUS ELIGIBILITY. As further consideration, and without any
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other obligation to do so, the parties agree that, subject to the provisions of
Paragraph 2, Xx. Xxxxxxxx will be eligible to receive a bonus under the Senior
Management Incentive Program ("SMIP") for his 1997 performance in an amount to
be decided at the discretion of the Bank. This payment, if any, will be less
legal deductions for applicable taxes and other withholdings and will be
payable at the same time such payments are made by Bank to other senior officers
under the SMIP generally for 1997 performance. Except as specified in this
paragraph, Xx. Xxxxxxxx agrees that, as of the date he executes this Agreement,
he: (a) withdraws his participation in any and all bonus or incentive plan(s) or
program(s) of the Bank; (b) will not be eligible to participate in any such
plan(s) or program(s) between the date he executes this Agreement and December
31, 1997, and (c) is not now or will he in the future be entitled to any
incentive or bonus payment(s) from Bank based on his employment through the
Resignation Date, or on any other basis.
6. TREATMENT OF STOCK-BASED BENEFITS. As further consideration, and
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without any other obligation to do so, the parties agree that, subject to and
contingent upon satisfaction of the provisions of Paragraph 2:
(a) Bank will recommend to the Executive Personnel and Compensation
Committee ("EPCC") that all of the stock options (including the DEC account
credits associated therewith) previously granted to Xx. Xxxxxxxx and outstanding
as of the Resignation Date, shall become 100% vested and immediately exercisable
as of the day after the Resignation Date;
(b) Bank will recommend to the EPCC that Xx. Xxxxxxxx shall have
three (3) years from the Resignation Date or the expiration of the original
option period specified in the applicable option agreement, whichever is less,
to exercise all stock options which are vested or become vested as of the day
after the Resignation Date, including PSOs, and which have not been exercised as
of the day after the Resignation Date;
(c) Xx. Xxxxxxxx will continue to receive credits to his DEC
accounts in accordance with the 1987 Management Stock Plan through the
Resignation Date; and
(d) With respect to Xx. Xxxxxxxx'x outstanding stock options and DEC
accounts, except as specified in this Paragraph 6, such options and DEC accounts
shall be treated in accordance with the terms of the plan or plans or option
agreements under which they were issued. Additionally, except as set forth in
this Agreement, as of the date he executes this Agreement, Xx. Xxxxxxxx agrees
that he is not now nor will he in the future be entitled to any grants of or
receipt of stock options, restricted stock, performance shares, impact shares
(including cash-based stock units), credits to DEC accounts, SARs, or other
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stock-based incentive award(s) based on his employment through the Resignation
Date, or on any other basis.
7. FINANCIAL PLANNING. As further consideration, and without any
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other obligation to do so, Bank agrees that, for 1997, Xx. Xxxxxxxx shall
continue to be eligible for standard financial counselling services at Bank's
expense to be provided by the Ayco Company. The parties understand and agree
that these services include tax preparation assistance by the Ayco Company in
1998 with respect to Xx. Xxxxxxxx'x 1997 tax returns. Except as provided by
this Paragraph, Xx. Xxxxxxxx shall not be eligible for any Bank-paid financial
counselling services by Ayco Company or any other company after the Resignation
Date.
8. RELEASE OF CLAIMS. In exchange for the promises contained in
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this Agreement, Xx. Xxxxxxxx hereby waives, releases and forever discharges, and
agrees to the extent permitted by law that he will not in any manner institute,
prosecute or pursue, any and all complaints, claims, charges, claims for relief,
demands, suits, actions or causes of action, whether in law or in equity, which
he asserts or could assert, at common law or under any statute, rule,
regulation, order or law, whether federal, state, or local, or on any grounds
whatsoever, including without limitation, any age discrimination claims under
the Age Discrimination in Employment Act, and any claims under the California
Fair Employment and Housing Act, the California Labor Code, Title VII of the
Civil Rights Act of 1964, the Equal Pay Act, the Americans with Disabilities
Act, the Family and Medical Leave Act, the California Family Rights Act, the
Rehabilitation Act of 1973, the Employee Retirement Income Security Act of 1974,
the Racketeer Influenced and Corrupt Organizations Act, the Financial Reform
Recovery and Enforcement Act of 1989, the Fair Labor Standards Act, and/or
Section 1981 of Title 42 of the United States Code, against Bank and/or any of
its or their current or former, owners, officials, directors, officers,
shareholders, affiliates, agents, employee benefit plans, representatives,
servants, employees, attorneys, subsidiaries, parents, divisions, branches,
units, successors, predecessors, and assigns (collectively referred to as
"Released Parties") with respect to any event, matter, claim, damage or injury
arising out of his employment relationship with Bank, and/or the termination of
such employment relationship, and/or with respect to any other claim, matter, or
event arising prior to execution of this Agreement by Xx. Xxxxxxxx. This
Agreement includes, but is not limited to, (i) release of any claims arising
from any statements (written or oral) made or distributed or published by any
and all of the Released Parties, prior to signing of this Agreement by Xx.
Xxxxxxxx, including any statements by Xx. Xxxxxxxx himself, and (ii) except as
otherwise specifically provided in this Agreement, release of any claims for any
type of wages, commissions, bonus, stock, incentive award, separation or
severance benefits, or any other form of compensation including, without
limitation, Bank's Employee Transition Program and/or any successor severance
program and/or the Change in Control Agreement referenced in Paragraph 10,
below. This Agreement does not waive rights or claims that may arise after the
date the Agreement is executed by Xx. Xxxxxxxx.
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9. CIVIL CODE (S)1542 WAIVER. As a further consideration and inducement
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for this Agreement, to the extent permitted by law, Xx. Xxxxxxxx hereby waives
and releases any and all rights under Section 1542 of the California Civil Code
or any analogous state, local, or federal law, statute, rule, order or
regulation, he has or may have with respect to the Released Parties. California
Civil Code Section 1542 reads 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."
Xx. Xxxxxxxx hereby expressly agrees that this Agreement shall extend and apply
to all unknown, unsuspected and unanticipated injuries and damages as well as
those that are now disclosed.
10. CANCELLATION OF CHANGE IN CONTROL AGREEMENT. Xx. Xxxxxxxx agrees
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that, effective the date Xx. Xxxxxxxx executes this Agreement, the Change in
Control Agreement between Xx. Xxxxxxxx and BankAmerica Corporation shall be
cancelled, all its provisions shall be void, and Bank shall have no liability
thereunder.
11. NO VACATION. Xx. Xxxxxxxx acknowledges and agrees that he has no
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accrued and unused vacation days, in lieu or personal choice days as of the date
he executes this Agreement and shall not earn or accrue any vacation, in lieu or
personal choice days between the date he executes this Agreement and the
Resignation Date.
12. WITHDRAWAL FROM DIRECTORSHIPS. Xx. Xxxxxxxx represents and agrees
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that as of the Resignation Date, he has or will have resigned from all
directorships or board memberships which he holds for entities or subsidiaries
or affiliates within Bank, and has or will have resigned from all directorships
or board memberships outside of Bank which he holds on behalf of or for the
benefit of Bank.
13. NO DISPARAGEMENT. Xx. Xxxxxxxx agrees and represents that he will
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not criticize, defame or disparage any of the Released Parties, their plans or
their actions, to any third party, either orally or in writing. It shall not be
a violation of this Paragraph if Xx. Xxxxxxxx provides information, which he in
good faith believes to be truthful, in response to inquiries from a
representative of a government agency acting in an official capacity and engaged
in either a formal or informal investigation of any of the Released Parties.
14. DEFERRED COMPENSATION AMOUNTS. Xx. Xxxxxxxx understands and agrees
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that any and all deferred amounts he has under any deferred compensation plan,
if any, will be paid to him pursuant to the terms of such plan(s) following the
Resignation Date and, to the extent there is a conflict between the terms of the
applicable deferred compensation plan and
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the terms of this Agreement, the parties agree that the terms of the deferred
compensation plan will govern. Xx. Xxxxxxxx also understands and agrees that any
payment to him under the Supplemental Retirement Plan shall be paid in accord
with the terms of the Supplemental Retirement Plan and in accord with the terms
of any applicable and valid Benefit Payment Election Form signed by Xx.
Xxxxxxxx, and will be paid following the Resignation Date. Bank and Xx. Xxxxxxxx
agree that the Benefit Payment Election Form signed by Xx. Xxxxxxxx provides
that he be paid in 5 annual installments commencing in the calendar year
following the year in which his employment ends, and Xx. Xxxxxxxx shall be paid
accordingly. Xx. Xxxxxxxx also understands and agrees that to the extent the
timing of any payments under any deferred compensation plan in which he
participates conflicts with the timing of payments to Xx. Xxxxxxxx as specified
in this Agreement, the timing provided for in the deferred compensation plan
shall control.
15. CONFIDENTIAL INFORMATION. Xx. Xxxxxxxx agrees and acknowledges that
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the positions held by him within Bank gave him significant access to
confidential information of substantial importance to the business of the Bank.
Therefore, Xx. Xxxxxxxx agrees that any and all information obtained by or
disclosed to him at any time during his employment with Bank which is not
generally known to the public ("Confidential Information"), is strictly
confidential and/or proprietary to Bank, constitutes trade secrets of Bank and
shall not be disclosed, discussed, or revealed to any persons, entities, or
organizations, outside of Bank, without prior written approval by an authorized
representative of Bank. Confidential Information shall include, but not be
limited to, information concerning Bank's customers, strategies, tactics,
methods of operation, processes, practices, policies, programs, marketing
information, market research data, financial information, procedures, and/or
personnel information. Further, to the fullest extent permitted by applicable
law, Xx. Xxxxxxxx agrees he will not (a) use any Confidential Information to
solicit present or potential business or customers of the Bank or use any
Confidential Information to otherwise compete with the Bank, or (b) use any
Confidential Information to assist any other individual, company or entity to do
so. A breach of this Paragraph is a material breach. The parties to this
Agreement agree that, should Xx. Xxxxxxxx violate the provisions of this
Paragraph, Bank shall be relieved of any obligation it may have to provide any
consideration to Xx. Xxxxxxxx which has not yet been provided under this
Agreement. In addition to any remedy for breach of this Paragraph which is
provided by this Paragraph, Bank retains all other legal and equitable rights or
remedies, including injunctive relief, which may be available under the law.
16. CONFIDENTIALITY OF AGREEMENT TERMS. Xx. Xxxxxxxx also agrees that
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the terms and conditions of this Agreement and any and all actions by Bank in
accordance therewith, are to be treated by Xx. Xxxxxxxx as strictly confidential
and, with the exception of Xx. Xxxxxxxx'x counsel, tax advisor, immediate
family, financial advisor, or as required by applicable law, have not been and
shall not be disclosed, discussed, or revealed to any other persons, entities,
or organizations, whether within or outside Bank, without prior written approval
by an authorized representative of Bank. Xx. Xxxxxxxx further agrees to
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take all reasonable steps necessary to insure that confidentiality is maintained
by any of the individuals or entities referenced above to whom disclosure is
authorized and agrees to accept responsibility for any breach of confidentiality
by said individuals or entities referenced above.
17. RETURN OF BANK PROPERTY. Xx. Xxxxxxxx further represents and/or
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agrees that he has returned or, prior to the Resignation Date, will return to
Bank all equipment and/or other property belonging to it (including, without
limitation, business credit cards, building passes, building keys, parking
passes, fax equipment, computer equipment, and phone equipment) which has been
or is in his care, custody, possession or control. The parties also recognize
that it is not practical for Xx. Xxxxxxxx to return to Bank the home security
equipment currently installed in Xx. Xxxxxxxx'x home; however, Xx. Xxxxxxxx
understands and agrees that Bank's monitoring of this security equipment shall
be discontinued on December 31, 1997. Xx. Xxxxxxxx agrees that, no later than
the Resignation Date, he will reimburse or reconcile to the Bank's satisfaction
all outstanding expenses or bills charged or chargeable to the Bank under Bank
expense reimbursement guidelines.
18. FUTURE COOPERATION AND INDEMNIFICATION. Xx. Xxxxxxxx additionally
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agrees to make himself available in connection with any and all claims,
disputes, negotiations, investigations, lawsuits or administrative proceedings
involving the Bank, to provide information or documents, provide declarations or
statements to the Bank, meet with attorneys or other representatives of the
Bank, prepare for and give depositions or testimony, and/or otherwise cooperate
in the investigation, defense or prosecution of such matters. The parties
recognize and agree that nothing in this Agreement shall waive, release or in
any way impair Xx. Xxxxxxxx'x rights to indemnification arising from his
employment with Bank, as such rights are specified in the applicable bylaws of
Bank and provided by applicable law.
19. NO RAIDING. As further consideration, to the fullest extent
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permitted by applicable law, Xx. Xxxxxxxx agrees he will not solicit for
employment or solicit for hire, on behalf of himself or any other person,
company or entity, any employees of Bank, nor will he aid any other person,
entity or company to do so, unless Xx. Xxxxxxxx receives prior written
authorization to do so from Xxxxxxxx Xxxxx (or her successor or delegee), from
the time he signs this Agreement through December 31, 2000, nor has he done so
within the three months prior to the time he signs this Agreement. A general
advertisement through the mass media soliciting applicants for a position or
positions shall not constitute a violation of this Paragraph. A breach of this
Paragraph is a material breach. The parties to this Agreement agree that, should
Xx. Xxxxxxxx violate the provisions of this Paragraph, Bank shall be relieved of
any obligation it may have to provide any consideration to Xx. Xxxxxxxx which
has not yet been provided under this Agreement. In addition to any remedy for
breach of this Paragraph which is provided by this Paragraph, Bank retains all
other legal and equitable rights or remedies, including injunctive relief, which
may be available under the law.
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20. NO ADMISSION OF LIABILITY. By entering into this Agreement, Bank and
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the other Released Parties do not admit any liability whatsoever to Xx. Xxxxxxxx
or to any other person arising out of any claims heretofore or hereafter
asserted by Xx. Xxxxxxxx and Bank and the other Released Parties expressly deny
any and all such liability.
21. ASSIGNMENTS. Xx. Xxxxxxxx represents that he has not assigned or
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transferred to any person or entity any of his rights or claims which are or
could be covered by this Agreement, including but not limited to any covenant
not to xxx and the waivers and releases contained in this Agreement.
22. PAYMENTS NOT PART OF PENSION OR RETIREMENT PLANS. None of the
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expenses to be incurred by Bank and/or payments or reimbursements to be made by
Bank to Xx. Xxxxxxxx pursuant to this Agreement shall count as earnings for
purposes of Xx. Xxxxxxxx'x pension, regular or supplemental retirement, or
savings plan benefits, including specifically the 401(k) Investment Plan and the
Pension Plan.
23. ATTORNEYS' FEES. As further mutual consideration of the promises set
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forth herein, the Bank and Xx. Xxxxxxxx agree that they each are responsible for
their own attorneys' fees and costs, and each agrees that they will not seek
from the other reimbursement for attorneys' fees and/or costs incurred in this
action or relating to any matters addressed in this Agreement.
24. JOINT PARTICIPATION IN PREPARATION OF AGREEMENT. The parties hereto
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participated jointly in the negotiation and preparation of this Agreement, and
each party has had the opportunity to obtain the advice of legal counsel and to
review, comment upon, and redraft this Agreement. Accordingly, it is agreed that
no rule of construction shall apply against any party or in favor of any party.
This Agreement shall be construed as if the parties jointly prepared this
Agreement, and any uncertainty or ambiguity shall not be interpreted against any
one party and in favor of the other.
25. SEVERABILITY. Should any of the provisions of this Agreement be
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rendered invalid by a court or government agency of competent jurisdiction, it
is agreed that this shall not in any way or manner affect the enforceability of
the other provisions of this Agreement which shall remain in full force and
effect. The parties further agree that California law shall govern the validity
and interpretation of this Agreement and that jurisdiction and/or venue of any
action involving the validity, interpretation or enforcement of this Agreement
or any of its terms, provisions or obligations or claiming breach thereof, shall
exist exclusively in a court or government agency located within San Francisco,
California.
26. SCOPE OF AGREEMENT. Xx. Xxxxxxxx hereby affirms and acknowledges
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that he has read the foregoing Agreement, that he has had the opportunity to
review or discuss it with the counsel of his choice that he has in fact had it
reviewed and discussed it with counsel of his choice, and that he fully
understands and appreciates the meaning of each of
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its terms. The parties to this Agreement represent that this Agreement may be
used as evidence in any subsequent proceeding in which any of the parties
alleges a breach of this Agreement or seeks to enforce its terms, provisions or
obligations.
27. ENTIRE AGREEMENT. This Agreement constitutes the complete
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understanding between Xx. Xxxxxxxx and Bank and supersedes any and all prior
agreements, promises, representations, or inducements, no matter its or their
form, concerning its subject matter. Xx. Xxxxxxxx understands and agrees that,
except as required by law or as specifically provided for in this Agreement, he
shall receive no further benefits or compensation of any type. Section headings
in this Agreement are included for convenience of reference only and shall not
be considered part of this Agreement for any other purpose. No promises or
agreements made subsequent to the execution of this Agreement by these parties
shall be binding unless reduced to writing and signed by authorized
representatives of these parties.
PLEASE TAKE THIS AGREEMENT HOME AND CAREFULLY CONSIDER ALL
OF ITS PROVISIONS BEFORE SIGNING IT. YOU SHOULD CONSULT AN
ATTORNEY OF YOUR CHOICE ABOUT THIS AGREEMENT BEFORE YOU SIGN
THE AGREEMENT. THIS AGREEMENT INCLUDES A RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS TO THE EXTENT PERMITTED BY LAW.
XXXXXX X. XXXXXXXX
DATED: 3-19-97 /s/ XXXXXX X. XXXXXXXX
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"BANK"
DATED: 3-25-97 by /s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
Vice Chairman
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ATTACHMENT A
STATEMENT OF NON-REVOCATION
AS OF THE DATE SHOWN ON THIS FORM
By signing below, I hereby verify that I have chosen not to revoke my
agreement to and execution of the General Release and Settlement Agreement. My
signature confirms my renewed agreement to the terms of that Agreement,
including the release and waiver of any and all claims relating to my employment
with Bank and/or the termination of that employment.
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Name (Please Print) Social Security Number
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Signature* Date*
*DO NOT SIGN, DATE OR RETURN THIS DOCUMENT UNTIL EIGHT (8) DAYS AFTER YOU SIGN
THE GENERAL RELEASE AND SETTLEMENT AGREEMENT.
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ATTACHMENT B
CONFIRMATION OF GENERAL RELEASE AND SETTLEMENT AGREEMENT
By signing below, I hereby acknowledge and confirm my agreement to all the
terms of the General Release and Settlement Agreement ("Agreement"). I also
agree, that as of the date I sign this document, my release and waiver of any
and all claims I may have relating to my employment within BankAmerica
Corporation and/or the termination of that relationship and/or release of other
claims arising before execution of the Agreement as set forth in the Agreement,
shall apply with the same force and effect as if set forth fully herein to the
period of time between the time I signed the Agreement and the date I sign this
document.
____________________________________________ ______________________
Signature* Date*
*DO NOT SIGN, DATE OR RETURN THIS DOCUMENT UNTIL AT LEAST ONE DAY AFTER YOUR
RESIGNATION DATE
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