EXHIBIT 10.18
CHANGE IN CONTROL
SEVERANCE BENEFITS PLAN AGREEMENT
Effective as of the 5th day of February, 1997 ("Effective Date") FIRST
REPUBLIC SAVINGS BANK, a Nevada corporation (the "COMPANY"), and its parent,
FIRST REPUBLIC BANCORP INC., a Delaware corporation (the "HOLDING COMPANY"),
hereby create this CHANGE IN CONTROL SEVERANCE BENEFITS PLAN AGREEMENT (the
"Plan Agreement"). This Plan Agreement is intended to provide Company and
Holding Company employees (each, an "Employee") with the compensation and
benefits described herein upon the occurrence of specific events.
Certain capitalized terms used in this Plan Agreement are defined in
Article 6.
Reference herein to the rights and obligations of the Company with respect
to its Employees shall also be deemed to be the rights and obligations of the
Holding Company with respect to its Employees.
The Company hereby agrees for the benefit of each Employee as follows:
ARTICLE 1
EMPLOYMENT BY THE COMPANY
1.1 Each Employee shall be eligible for the benefits herein set forth on
the Effective Date (if such Employee is employed by the Company on that date),
or on the date upon which a person subsequently is employed by the Company
during the term of this Plan Agreement.
1.2 This Plan Agreement shall remain in full force and effect for the two
year period specified in Article 7; provided, however, that the rights and
obligations contained in Articles 2 through 7 shall survive any termination for
the longer of (i) two (2) years from the Effective Date of the Plan Agreement or
(ii) twenty-four (24) months following a Change in Control (as hereinafter
defined) or such later period as may be required so that all benefits to which
Employee is entitled under this Plan Agreement are paid or otherwise provided to
Employee.
1.3 The Company wishes to set forth the compensation and benefits which
Employee shall be entitled to receive in the event that there is a Change in
Control or Employee's employment with the Company terminates following a Change
in Control under the circumstances described in Article 2 of this Plan
Agreement.
1.4 The duties and obligations of the Company to Employee under this Plan
Agreement shall be in consideration for Employee's services to the Company,
Employee's continued employment with the Company, and Employee's execution of
the general waiver and release described in Section 3.2
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ARTICLE 2
SEVERANCE BENEFITS
2.1 ENTITLEMENT TO SEVERANCE BENEFITS. Upon the occurrence of the events
herein described, or if Employee's employment terminates due to a Covered
Termination, the Company shall pay Employee the compensation and benefits
described in this Article 2.
Payment of any benefits described in this Article 2 shall be subject to the
restrictions and limitations set forth in Article 3.
2.2 LUMP SUM SEVERANCE PAYMENT. Within forty-five (45) days following a
Covered Termination, Employee shall receive a lump sum payment determined by
the Employee's Total Compensation multiplied by the appropriate factor or
formula applied from the table attached as Exhibit A (which factor or formula
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shall be based upon the Employee's title or grade within the Company), as well
as any additional payment (if applicable) pursuant to Section 4.2 hereof. This
lump sum payment shall be called the Employee's "Severance Benefit."
If the Employee's Covered Termination occurs on or before the expiration of
twelve (12) months from the occurrence of a Change in Control, the Employee
shall be entitled to receive 100% of his or her Severance Benefit. If the
Employee's Covered Termination occurs after the expiration of twelve (12) months
from the occurrence of a Change in Control, the Employee shall not be entitled
to receive a Severance Benefit hereunder.
2.3 DEATH OF AN EMPLOYEE. If an Employee dies after becoming eligible to
receive the payment of the severance benefit described herein, but before such
severance benefit is paid to the Employee, such severance benefit shall be paid
to the Employee's surviving spouse or, if there is no surviving spouse, to the
Employee's estate.
2.4 STOCK OPTIONS AND STOCK. All stock options held by the Employee with
respect to Holding Company stock that are unvested at the time of a Change in
Control shall become fully vested and exercisable upon a Change in Control
(regardless of whether a Covered Termination occurs) and all Holding Company
stock held by the Employee that is subject to vesting restrictions at the time
of a Change in Control shall become fully vested upon a Change in Control
(regardless of whether a Covered Termination occurs).
2.5 SPLIT DOLLAR INSURANCE. For Employees who receive from the Company
the Equitable split dollar life insurance plan benefit ("Split Dollar Plan"),
automatically upon the occurrence of a Change in Control (and regardless of
whether a Covered Termination occurs), all then existing loans from the Company
to the Employee pursuant to the Split Dollar Plan will be deemed to be paid in
full and the promissory note(s) executed by the Employee in connection with such
Split Dollar Plan will be deemed satisfied and said promissory note(s), together
with any collateral assignment(s) pledged by the Employee in connection
therewith, will be of no further force and effect. Upon a Change in Control,
the Company will promptly take such action as is necessary to extinguish the
promissory note(s) and collateral assignment(s).
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2.6 TAX-QUALIFIED RETIREMENT PLANS. Upon the occurrence of a Change in
Control (and regardless of whether a Covered Termination occurs), the Employee's
benefits under the First Republic 401(k) and Employee Stock Ownership Plans
shall become fully vested (to the extent not already fully vested).
2.7 WELFARE BENEFITS. Following a Covered Termination, Employee and his or
her covered dependents will be eligible to continue their Welfare Benefit
coverage under any Welfare Benefit plan or program maintained by the Company
only to the extent provided under the terms and conditions of such Welfare
Benefit plan or program. Except for the foregoing, no continuation of Welfare
Benefits shall be provided under this Plan Agreement, except to the extent
continuation of health insurance coverage is required under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA").
This Section 2.7 is not intended to affect, nor does it affect, the rights
of Employee, or Employee ' s covered dependents, under any applicable law with
respect to health insurance continuation coverage.
2.8 MITIGATION. Except as otherwise specifically provided herein, Employee
shall not be required to mitigate damages or the amount of any payment provided
under this Plan Agreement by seeking other employment or otherwise, nor shall
the amount of any payment provided for under this Plan Agreement be reduced by
any compensation earned by Employee as a result of employment by another
employer or by retirement benefits received after the date of the Covered
Termination, or otherwise.
2.9 BASIS OF PAYMENTS. All benefits under this Plan Agreement shall be
paid by the Company. This Plan Agreement shall be unfunded, and benefits
hereunder shall be paid only from the general assets of the Company.
ARTICLE 3
LIMITATIONS AND CONDITIONS ON BENEFITS
3.1 WITHHOLDING OF TAXES. The Company shall withhold appropriate federal,
state or local income and employment taxes from any payments hereunder.
3.2 EMPLOYEE PLAN AGREEMENT AND RELEASE PRIOR TO RECEIPT OF BENEFITS. Upon
the occurrence of a Covered Termination, and prior to the receipt of any
benefits under this Plan Agreement on account of the occurrence of a Covered
Termination, Employee shall, as of the date of a Covered Termination, execute an
employee agreement and release substantially in the form attached hereto as
Exhibit B. Such employee agreement and release shall specifically relate to all
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of Employee's rights and claims in existence at the time of such execution. In
the event Employee does not execute such employee agreement and release within
the time period specified in such employee agreement and release or if Employee
revokes such employee agreement and release within the revocation period
provided in such employee agreement and release, no benefits shall be payable
under this Plan Agreement to Employee. In addition, anything contained in
Article 2 to the contrary notwithstanding, no payment of benefits under this
Plan Agreement shall be made until such revocation period shall have expired.
3.3 LIMITS IMPOSED BY APPLICABLE BANKING LAW. Notwithstanding any other
provision to the contrary, the Company shall not be obligated under this Plan
Agreement to pay any Severance Benefit to the
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extent that such payment would violate any prohibition or limitation on
termination payments under any applicable federal or state statute, rule or
regulation promulgated, or effective order issued, by any federal or state
regulatory agency having jurisdiction over the Company. Without limiting the
foregoing, the Company acknowledges that the Federal Deposit Insurance
Corporation (the "FDIC") has issued a regulation that prohibits payment of the
Severance Benefit under certain circumstances, unless such payments were
approved by the FDIC and any other applicable regulator.
ARTICLE 4
OTHER RIGHTS AND BENEFITS
4.1 NONEXCLUSIVITY. Nothing in the Plan Agreement shall prevent or limit
Employee's continuing or future participation in any benefit, bonus, incentive
or other plans, programs, policies or practices provided by the Company and for
which Employee may otherwise qualify, nor, except as specifically provided
herein, shall anything herein limit or otherwise affect such rights as Employee
may have under any stock option or other agreements with the Company. Except as
otherwise expressly provided herein, amounts which are vested benefits or which
Employee is otherwise entitled to receive under any plan, policy, practice or
program of the Company at or subsequent to the date of a Covered Termination
shall be payable in accordance with such plan, policy, practice or program.
4.2 PARACHUTE PAYMENTS. If any amount payable to or other benefit
receivable by an Employee pursuant to this Plan Agreement constitutes a
Parachute Payment as defined in Section 280G of the Internal Revenue Code (a
"Parachute Payment"), alone or when added to any other amount payable or paid to
or other benefit receivable or received by the Employee which is deemed to
constitute a Parachute Payment (whether or not under an existing plan,
arrangement or other agreement), and would result in the imposition on the
Employee of an excise tax under Section 4999 of the Internal Revenue Code (the
"Excise Tax"), then, in addition to any other benefits to which the Employee is
entitled under this Plan Agreement, the Employee shall be promptly paid by the
Company an additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Employee of all taxes (including any excise taxes, income
taxes (determined using the highest possible applicable federal, state and
local marginal tax rates) and interest or penalties with respect to such taxes)
imposed on the Gross-Up Payment, the Employee retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed on all Parachute Payments.
Determinations under this Section 4.2 shall be made by the Chief Financial
Officer of the Company in conjunction with the Company's independent auditors
(which auditors served in such capacity immediately prior to the Change in
Control). All fees and expenses of the independent auditor shall be borne
solely by the Company.
ARTICLE 5
NON-ALIENATION OF BENEFITS
No benefit hereunder shall be subject to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any attempt to so
subject a benefit hereunder shall be void.
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ARTICLE 6
DEFINITIONS
For purposes of the Plan Agreement, the following terms shall have the
meanings set forth below:
6.1 "AGREEMENT" OR "PLAN AGREEMENT" means this Change in Control Severance
Benefits Plan Agreement.
6.2 "ANNUAL BASE SALARY" means the amount of compensation provided by the
Company to Employee as base salary if the Employee is an exempt, salaried
employee according to the Company's personnel records. Such amount shall be
determined by annualizing the highest base rate_in effect for Employee at any
time immediately prior to, on, or after the date of the Change in Control,
exclusive of any bonus or other incentive cash compensation, income from any
stock options or other stock awards, supplemental deferred compensation
contributions made by the Company, pension or profit sharing contributions or
distributions (except as provided below), insurance payments or proceeds, fringe
benefits, or other form of additional compensation, but specifically including
any amounts withheld from base salary to provide benefits pursuant to Section
125 or 401(k) of the Internal Revenue Code or pursuant to any other plan or
program of deferred compensation with respect to elective deferrals of
compensation otherwise payable currently.
6.3 "BONUS" means the Employee's bonus compensation received for the
calendar year immediately preceding the Change in Control. For purposes of
determining a bonus compensation for the preceding calendar year, the bonus
compensation shall be attributable to the year in which the bonus was earned,
even though all or part of the bonus may have been actually paid to the Employee
in the subsequent year.
6.4 "CHANGE IN CONTROL" means the consummation of any of the following
transactions during the term of this Plan Agreement:
(a) the Company or Holding Company merges or consolidates with any other
corporation, other than a merger or consolidation which would result in
beneficial owners of the total voting power in the election of directors
represented by the voting securities ("Voting Securities") of the Company or
Holding Company (as the case may be) outstanding immediately prior thereto
continuing to beneficially own securities representing (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than fifty percent (50%) of the total Voting Securities of the
Company or Holding Company, or of such surviving entity, outstanding immediately
after such merger or consolidation;
(b) the Company or Holding Company liquidates or dissolves, or sells,
leases, exchanges or otherwise transfers or disposes of all or substantially all
of the Company's assets;
(c) any person (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), other than
(A) a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or Holding Company, (B) a corporation owned directly or
indirectly by the shareholders of Holding Company in substantially the same
proportions as their beneficial ownership of stock
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in Holding Company, or (C) Holding Company (with respect to its ownership of the
stock of the Company), is or becomes the beneficial owner (within the meaning of
Rule 13d-3 under the Exchange Act), directly or indirectly, of the securities of
the Company or Holding Company representing fifty percent (50%) or more of the
Voting Securities; or
(d) (A) (1) the shareholders of the Company or the Holding Company,
approve a merger or consolidation of the Company or Holding Company with any
other corporation, other than a merger or consolidation which would result in
beneficial owners of Voting Securities of the Company or Holding Company (as the
case may be) outstanding immediately prior thereto continuing to beneficially
own securities representing (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than seventy-five
percent (75%) of the total Voting Securities of the Company or Holding Company,
or of such surviving entity, outstanding immediately after such merger or
consolidation, or (2) any person (as such term is used in Sections 13(d) or
14(d) of the Exchange Act), other than (a) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or Holding Company, (b)
a corporation owned directly or indirectly by the shareholders of Holding
Company in substantially the same proportions as their ownership of stock in
Holding Company, or (c) Holding Company (with respect to Holding Company's
ownership of the stock of the Company), is or becomes the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act), directly or
indirectly, of the securities of the Company or Holding Company representing 25%
or more of the Voting Securities of such corporation, and
(B) within twelve (12) months of the occurrence of such event, a change in
the composition of the Board of Directors of the Company or Holding Company
occurs as a result of which sixty percent (60%) or fewer of the directors are
Incumbent Directors.
"Incumbent Directors" shall mean directors who either
(A) are directors of the Company and of the Holding Company as of the date
hereof;
(B) are elected, or nominated for election, to the Board of Directors of
the Company and of the Holding Company with the affirmative votes of at least a
majority of the directors of the Company or Holding Company who are Incumbent
Directors described in (A) above at the time of such election or nomination; or
(C) are elected, or nominated for election, to the Board of Directors of
the Company or the Holding Company with the affirmative votes of at least a
majority of the directors of the Company or Holding Company who are Incumbent
Directors described in (A) or (B) above at the time of such election or
nomination.
Notwithstanding the foregoing, "Incumbent Directors" shall not include an
individual whose election or nomination to the Board of Directors of the Company
or Holding Company occurs in order to provide representation for a person or
group of related persons who have initiated or encouraged an actual or
threatened proxy contest relating to the election of directors of the Company or
Holding Company.
6.5 "COMPANY" means First Republic Savings Bank, a Nevada corporation, and
any successor thereto.
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6.6 "CONSTRUCTIVE TERMINATION" means that the Employee voluntarily
terminates his or her employment after any of the following are undertaken
without his or her express written consent:
(a) the material, involuntary reduction in Employee's responsibilities,
authorities or functions as an employee of the Company as in effect immediately
prior to a Change in Control, except in connection with the termination of
Employee's employment for death, disability, retirement or any listed exclusion
from the definition of Involuntary Termination;
(b) a reduction in Employee's Annual Base Salary or Weekly Wage, whichever
is applicable, by more than 10%;
(c) a substantive, material adverse change in the manner in which
Employee's bonus is established or determined; or
(d) a relocation of Employee to a location more than thirty-five (35) miles
from the location at which Employee performed Employee's duties prior to a
Change in Control, except for required travel by Employee on the Company's
business to an extent substantially consistent with Employee's business travel
obligations at the time of a Change in Control.
6.7 "COVERED TERMINATION" means an Involuntary Termination or a
Constructive Termination within twelve (12) months following a Change in
Control. No other event shall be a Covered Termination for purposes of this Plan
Agreement. For example, if Employee's employment terminates, but not due to an
Involuntary Termination or a Constructive Termination within twelve (12) months
following a Change in Control, or for any reason prior to a Change in Control,
or after twelve (12) months or more following a Change in Control, then the
termination of employment will not be a Covered Termination and Employee will
not be entitled to receive any payments or benefits under Article 2 which are
payable with respect to a Covered Termination.
6.8 "EMPLOYEE" means a person employed as a common law employee with the
Company or Holding Company on the date of a Change in Control. For purposes of
this Plan Agreement, "Employee" excludes a person in any of the following
categories immediately prior to a Change in Control: (a) person whom the Company
or Holding Company treats as an independent contractor; (b) an individual
serving the Company or Holding Company through an agency, payroll service, sub-
contractor or other third party provider; (c) a person who is employed up to a
maximum defined term and who is employed without regular employee benefits; (d)
a seasonal employee who is employed for less than twelve (12) consecutive months
and who is employed without regular employee benefits; (e) an employee on leave
of absence after the period of time the Company or Holding Company has committed
or is required to return him or her to active employment based on the
requirements of law, written policy or Company or Holding Company practice; (f)
a part-time hourly employee who works on an unscheduled, on-call basis; and (g)
any employee acquired by the Company or Holding Company as a result of a merger
or other business combination until the first anniversary date of the
acquisition, unless some other date is specified by agreement with the acquired
entity.
6.9 "HOLDING COMPANY" means First Republic Bancorp Inc., a Delaware
corporation, and any successor thereto.
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6.10 "INVOLUNTARY TERMINATION" means Employee's dismissal or discharge by
the Company (or, if applicable, by the successor entity) for reasons other than
one of the following reasons:
(a) the commission by Employee of an act of deliberately criminal or
fraudulent misconduct in the line of duty to the Company or Holding Company
(including, but not limited to, fraud, misappropriation, embezzlement or the
wilful violation of any material law, rule, regulation, or cease and desist
order applicable to Employee, the Company or Holding Company), or a deliberate,
wilful breach of a fiduciary duty owed by Employee to the Company or the Holding
Company;
(b) Intentional, continued failure to perform stated duties (including but
not limited to chronic absenteeism), gross negligence, or gross incompetence in
the performance of stated duties;
(c) Employee's chronic alcohol or drug abuse that results in a material
impairment of Employee's ability to perform his or her duties as an employee of
the Company after reasonable accommodation;
(d) Employee's removal from his or her office with the Company pursuant to
an effective order under Section 8(e) of the Federal Deposit Insurance Act 12
U.S.C.(S)1818(e).
The termination of an Employee's employment will not be deemed to be an
"Involuntary Termination" if such termination occurs as a result of the death or
disability of Employee.
6.11 "TOTAL COMPENSATION" means, with respect to salaried, exempt
Employee's, the sum of the Employee's Annual Base Salary and the Employee's
Bonus (as such terms are defined in this Article 6). "Total Compensation" means
with respect to hourly wage, non-exempt Employees the Employee's Weekly Wage.
6.12 "WEEKLY WAGE" means the amount of compensation provided by the
Company to Employee on a weekly basis if Employee is a non-exempt, hourly wage
employee according to the Company's personnel records. Such amount shall be
determined by multiplying the highest hourly wage in effect for Employee at any
time immediately prior to, on, or after the date of Change in Control (exclusive
of all other forms of compensation and benefits) by 2080, and by dividing that
product by 52.
6.13 "WELFARE BENEFITS" means benefits providing for coverage or payment
in the event of Employee's death, disability, illness or injury that were
provided to Employee immediately before a Change in Control, whether taxable or
non-taxable and whether funded through insurance or otherwise.
ARTICLE 7
TERM OF PLAN AGREEMENT; ADMINISTRATION
7.1 TERM. This Plan Agreement shall have a term of two (2) years,
commencing as of the Effective Date.
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7.2 ADMINISTRATION. The Plan Agreement shall be administered and
interpreted by a committee (the "Committee") composed of the three individuals
holding the following positions immediately prior to a Change in Control (or at
such earlier time that such a decision or interpretation is required to be
made): the Executive Vice President/COO, the Senior Vice President/CFO, and the
Senior Vice President/General Counsel. The Committee shall have the full and
exclusive discretion to interpret and administer the Plan. All actions,
interpretations and decisions of the Committee shall be conclusive and binding
on all persons, and shall be given the maximum possible deference allowed by
law.
ARTICLE 8
GENERAL PROVISIONS
8.1 EMPLOYMENT STATUS. This Plan Agreement does not constitute a contract
of employment or impose on Employee any obligation to remain as an employee, or
impose on the Company any obligation (i)to retain Employee as an employee, (ii)
to change the status of Employee as an at-will employee, or (iii) to change the
Company's policies regarding termination of employment.
8.2 NOTICES. Any notices provided hereunder must be in writing and such
notices or any other written communication shall be deemed effective upon the
earlier of personal delivery (including personal delivery by telex or facsimile)
or the third day after mailing by first class mail, to the Company at its
administrative headquarters located at 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000: Attention: General Counsel (or to its primary office
location if no longer at the above address), and to Employee at his or her
address as listed in the Company's payroll records. Any payments made by the
Company to Employee under the terms of this Plan Agreement shall be delivered to
Employee either in person or at his or her address as listed in the Company's
payroll records.
8.3 SEVERABILITY. Whenever possible, each provision of this Plan Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Plan Agreement is held to be invalid, illegal
or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Plan Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
8.4 WAIVER. If either party should waive any breach of any provisions of
this Plan Agreement, such party shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this Plan
Agreement.
8.5 COMPLETE PLAN AGREEMENT. This Plan Agreement, including Exhibits A, B
and C, and any other written agreements expressly referred to in this Plan
Agreement, constitutes the entire, complete, final, and exclusive embodiment of
the agreement with regard to this subject matter.
8.6 AMENDMENT OR TERMINATION OF PLAN AGREEMENT. This Plan Agreement may be
changed or terminated prior to a Change in Control only if such change or
termination has been approved by the Company's and Holding Company's Board of
Directors (in each case pursuant to which a majority of the Incumbent Directors
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shall have voted in favor of such approval), and may not be changed or
terminated on or after a Change in Control without the written consent of the
affected Employee(s).
8.7 HEADINGS. The headings of the Articles and Sections hereof are
inserted for convenience only and shall not be deemed to constitute a part
hereof nor to affect the meaning thereof.
8.8 SUCCESSORS AND ASSIGNS. This Plan Agreement is intended to bind and
inure to the benefit of and be enforceable by Employee and the Company, and
their respective successors, assigns, heirs, executors and administrators.
8.9 ARBITRATION. Any and all disputes or controversies, arising from or
regarding the interpretation, performance, enforcement or termination of this
Plan Agreement shall be resolved, subject to Section 7.2 hereof, by final and
binding arbitration under the procedures set forth in the Arbitration Procedure
attached hereto as Exhibit C and the then existing Judicial Arbitration and
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Mediation Services, Inc. ("JAMS") Rules of Practice and Procedure or the rules
of practice and procedure of any successor entity to JAMS (except insofar as
they are inconsistent with the procedures set forth in the enclosed Arbitration
Procedure).
8.10 ATTORNEY FEES. In the event of any arbitration or litigation or any
other action or proceeding relating to the interpretation, performance,
enforcement or termination of this Plan Agreement, the Company, Holding Company
and Employee shall be responsible for its own fees and costs, including
reasonable attorneys' fees, incurred as a result of such action or proceeding;
provided, however, that if any Employee brings an action or proceeding hereunder
in good faith, then the Company or the Holding Company shall reimburse such
Employee for his or her fees, costs and reasonable attorneys fees in connection
therewith, regardless of the outcome of the proceeding.
8.11 CHOICE OF LAW. All questions concerning the construction, validity
and interpretation of this Plan Agreement will be governed by the laws of the
State of California, except to the extent preempted by federal law.
8.12 TRANSFER OF SERVICES TO AFFILIATE. This Plan Agreement shall not
prohibit the Company, prior to a "Change in Control", from transferring
Employee's services to an affiliate of the Company, provided that the rights and
obligations of the parties hereto shall not terminate in the event of such
transfer, and provided further that the new entity for which Employee is
performing services also shall be bound hereby without the need for further
written agreement and without release of the Company.
8.13 NO VIOLATION OF GOVERNING BANKING LAW. Nothing in this Plan Agreement
is intended to require or shall be construed as requiring the Company to do or
fail to do any act in violation of applicable law, rule, regulation or order.
The Company's inability, pursuant to court or regulatory order, to perform its
obligations under this Plan Agreement or the modification of this Plan Agreement
by the FDIC or other bank regulatory agency through administrative action shall
not constitute a breach of this Plan Agreement. Except to the extent provided in
Section 3.3, the provisions of this Plan Agreement shall be severable. If this
Plan Agreement or any portion hereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Company shall
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nevertheless perform its obligations hereunder to the full extent permitted by
any applicable portion of this Plan Agreement that shall not have been
invalidated, and the balance of this Plan Agreement not so invalidated shall be
enforceable in accordance with its terms.
8.14 CONSTRUCTION OF PLAN AGREEMENT. In the event of a conflict between
the text of the Plan Agreement and any summary, description or other information
regarding the Plan Agreement, the text of the Plan Agreement shall control.
IN WITNESS WHEREOF, the Company has caused this Plan Agreement to be duly
adopted as of the Effective Date.
COMPANY HOLDING COMPANY
By: /s/ Xxxxx X. Xxxxxxx, XX By: /s/ Xxxxx X. Xxxxxxx, XX
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Its: President Its: President
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By: /s/ Xxxxxxxxx August-xxXxxxx By: /s/ Xxxxxxxxx August-xxXxxxx
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Its: Executive Vice President Its: Executive Vice President
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Exhibit A: Severance Benefit Table
Exhibit B: Employee Plan Agreement and Release
Exhibit C: Arbitration Procedure
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EXHIBIT A
SEVERANCE BENEFIT TABLE
Category Title or Grade Factor (# of Years)
-------- -------------- ------------------
I. President/CEO; Executive Vice President/COO; Senior
Vice President/CFO; Executive Vice President - Nevada;
Senior Vice President/General Counsel................... 2
II. Vice President (other than Vice President - Credit &
Underwriting)........................................... 1.5*
III. Managing Directors - Lending; Regional Savings Managers;
Director of Loan Administration; Director of Secondary
Marketing............................................... 1.5*
IV. Loan Officers; Savings Branch Managers; Team Processing
Managers; Loan Originator; Senior Loan Processors;
Director of Marketing; Treasurer; Manager Loan Closing;
Savings Operations Manager; Manager, Special Assets;
Accounting Manager; Assistant Credit Administrator; MIS
Department Personnel; Senior Credit Officer; Vice
President - Credit & Underwriting; Senior Consultant;
Senior Financial Analyst................................ 1*
V. Other Employees in Exempt Status........................ 0.75*
VI. Employees in Non Exempt Status.......................... Will receive 4 weeks of Weekly Wage,
plus two weeks for every full year with
the Company, up to a total maximum of 28
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weeks of Weekly Wage.*
EXAMPLE: Non-exempt Employee who had worked
for the Company for 5 full years at the date
of a Covered Termination shall receive a
Severance Benefit equal to 14 weeks of
Weekly Wage.
______________________
* The factor for any Employee in these categories who has been employed by the
Company for less than one year as of the date of a Change in Control shall be
reduced in proportion to the percentage of his/her time of employment bears
to one year. For this purpose, time of employment shall be based on the
number of full months in the Company's employ. EXAMPLE: If an Employee in
Category II has been with the Company nine months as of the Change of Control
date, his/her severance factor shall be reduced to 1.125 (9 mos. is 75% of 1
yr; 75% of 1.5 = 1.125). The President/CEO and the Executive Vice
President/COO each have the authority to waive this factor reduction in their
sole and absolute discretion as to any such Employee.
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EXHIBIT B.1
EMPLOYEE AGREEMENT AND RELEASE
I hereby release, acquit and forever discharge the First Republic Savings
Bank, its parents and subsidiaries (collectively, the "Company"), and their
officers, directors, agents, servants, employees, shareholders, attorneys,
successors, assigns and affiliates, of and from any and all claims, liabilities,
demands, causes of action, costs, expenses, attorneys fees, damages, indemnities
and obligations of every kind and nature, in law, equity, or otherwise, known
and unknown, suspected and unsuspected, disclosed and undisclosed (other than
any claim for indemnification which I may have as a result of any third party
action against me based on my employment with the Company), arising out of or in
any way related to agreements, events, acts or conduct at any time prior to and
including the effective date of this Agreement, including but not limited to:
all such claims and demands directly or indirectly arising out of or in any way
connected with my employment with the Company or the termination of that
employment, including but not limited to, claims of intentional and negligent
infliction of emotional distress, any and all tort claims for personal injury,
claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other ownership interests in the Company, vacation pay, fringe benefits,
expense reimbursements, severance pay, or any other form of compensation; claims
pursuant to any federal, state or local law, statute or cause of action
including, but not limited to, the federal Civil Rights Act of 1964, as amended;
the federal Americans with Disabilities Act of 1990; the California Fair
Employment and Housing Act, as amended; tort law; contract law; wrongful
discharge; discrimination; harassment; fraud; defamation; emotional distress;
and breach of the implied covenant of good faith and fair dealing; provided,
however, that nothing in this paragraph shall be construed in any way to release
the Company (i) from its obligation to indemnify me pursuant to any
Indemnification Agreement between me and the Company which is currently in
effect; or (ii) from the Company's obligations as otherwise set forth under the
Company's Change in Control Severance Benefits Plan Agreement, the Company's
Retention Bonus and Insurance Benefits Plan Agreement, and the generally
applicable employee benefit plans, programs and arrangements of the Company.
In giving this release, which includes claims which may be unknown to me at
present, I acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND
TO THE 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." I hereby expressly waive and
relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to my release of any claims I may
have against the Company.
I UNDERSTAND AND AGREE COMPLETELY TO THE TERMS SET FORTH IN THE FOREGOING
AGREEMENT.
By:____________________________________
[Employee Name]
Date:____________________________, 199_
[FOR PARTICIPANTS UNDER AGE 40]
13
EXHIBIT B.2
EMPLOYEE AGREEMENT AND RELEASE
I acknowledge that I have read and understand Section 1542 of the
California Civil Code which 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." I hereby expressly waive
and relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to my release of any claims I may
have against First Republic Savings Bank, its parents and subsidiaries
(collectively the "Company").
I hereby release, acquit and forever discharge the Company, and their
officers, directors, agents, servants, employees, shareholders, attorneys,
successors, assigns and affiliates, of and from any and all claims, liabilities,
demands, causes of action, costs, expenses, attorneys fees, damages, indemnities
and obligations of every kind and nature, in law, equity, or otherwise, known
and unknown, suspected and unsuspected, disclosed and undisclosed (other than
any claim for indemnification I may have as a result of any third party action
against me based on my employment with the Company), arising out of or in any
way related to agreements, events, acts or conduct at any time prior to and
including the effective date of this Agreement, including but not limited to:
all such claims and demands directly or indirectly arising out of or in any way
connected with my employment with the Company or the termination of that
employment, including but not limited to, claims of intentional and negligent
infliction of emotional distress, any and all tort claims for personal injury,
claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other ownership interests in the Company, vacation pay, fringe benefits,
expense reimbursements, severance pay, or any other form of compensation; claims
pursuant to any federal, state or local law or cause of action including, but
not limited to, the federal Civil Rights Act of 1964, as amended; the federal
Age Discrimination in Employment Act of 1967, as amended ("ADEA"); the federal
Americans with Disabilities Act of 1990; the California Fair Employment and
Housing Act, as amended; tort law; contract law; wrongful discharge;
discrimination; fraud; defamation; emotional distress; and breach of the implied
covenant of good faith and fair dealing; provided, however, that nothing in this
paragraph shall be construed in any way to release the Company (i) from its
obligation to indemnify me pursuant to any Indemnification Agreement between me
and the Company which is currently in effect; or (ii) from the Company's
obligations as otherwise set forth under the Company's Change in Control
Severance Benefits Plan Agreement, the Company's Retention Bonus and Insurance
Benefits Plan Agreement, and the generally applicable employee benefit plans,
programs and arrangements of the Company.
I acknowledge that I am knowingly and voluntarily waiving and releasing any
rights I may have under ADEA. I also acknowledge that the consideration given
for the waiver and release in the preceding paragraph hereof is in addition to
anything of value to which I was already entitled. I further acknowledge that I
have been advised by this writing, as required by the ADEA, that: (A) my waiver
and release do not apply to any rights or claims that may arise after the
effective date of this Agreement; (B) I should consult with an attorney prior
to executing this Agreement; (C) I have [TWENTY-ONE (21)] [INSERT OTHER PERIOD
OF TIME IF APPROPRIATE] days to consider this Agreement (although I may choose
to voluntarily execute this Agreement earlier); (D) I have seven (7) days
following the execution of this Agreement by the parties to revoke the
Agreement; and (E) this Agreement shall not be effective until the date upon
which the revocation period has expired, which shall be the eighth day after
this Agreement is executed by me.
I UNDERSTAND AND AGREE COMPLETELY TO THE TERMS SET FORTH IN THE FOREGOING
AGREEMENT.
By:____________________________________
[Employee Name]
Date:____________________________, 199_
[FOR PARTICIPANTS WHO ARE AGE 40 AND OLDER]
14
EXHIBIT C
ARBITRATION PROCEDURE
1. The parties agree that any dispute that arises in connection with the
payment of benefits under this Plan Agreement or the termination of this Plan
Agreement shall be resolved by binding arbitration in the manner described
below.
2. A party intending to seek resolution of any dispute under the Plan
Agreement by arbitration shall provide a written demand for arbitration to the
other party, which demand shall contain a brief statement of the issues to be
resolved.
3. The arbitration shall be conducted in San Francisco County, California
by a mutually acceptable retired judge from the panel of Judicial Arbitration
and Mediation Services, Inc. or any entity performing the same type of services
that succeeds to its business ("JAMS"). At the request of either party,
arbitration proceedings will be conducted in the utmost secrecy and, in such
case all documents, testimony and records shall be received, heard and
maintained by the arbitrator in secrecy under seal, available for inspection
only by the parties to the arbitration, their respective attorneys, and their
respective expert consultants or witnesses who shall agree in advance and in
writing, to receive all such information confidentially and to maintain such
information in secrecy, and make no such use of such information except for the
purposes of the arbitration, unless compelled by legal process.
4. The arbitrator is required to disclose any circumstances that might
preclude the arbitrator from rendering an objective and impartial determination.
In the event the parties cannot mutually agree upon the selection of a JAMS
arbitrator, the President of JAMS shall designate the arbitrator.
5. The party demanding arbitration shall promptly request that JAMS
conduct a scheduling conference with fifteen (15) days of the date of that
party's written demand for arbitration or on the first available date thereafter
on the arbitrator's calendar. The arbitration hearing shall be held within
thirty (30) days after the scheduling conference or on the first available date
thereafter on the arbitrator's calendar.
6. Discovery shall be conducted as follows: (a) prior to the arbitration
any party may make a written demand for lists of the witnesses to be called and
the documents to be introduced at the hearing; (b) the lists must be served
within fifteen (15) days of the date of receipt of the demand, or one day prior
to the arbitration, whichever is earlier; and (c) each party may take no more
than two depositions (pursuant to the procedures set forth in the California
Code of Civil Procedure) with a maximum of five hours of examination time per
deposition, and no other form of pre-arbitration discovery shall be permitted.
7. It is the intent of the parties that the Federal Arbitration Act
("FAA") shall apply to the enforcement of this provision unless it is held
inapplicable by a court with jurisdiction over the dispute, in which event the
California Arbitration Act ("CAA") shall apply.
8. Except to the extent preempted by federal law, the arbitrator shall
apply California law, including the California Evidence Code, and shall be able
to decree any and all relief of an equitable nature, including but not limited
to such relief as a temporary restraining order, a preliminary injunction, a
permanent injunction, or replevin of Company property. The arbitrator shall
also be able to award actual, general or consequential damages, but shall not
award any other form of damage (e.g., punitive damages).
15
