EXHIBIT 10.23
AGREEMENT FOR SEPARATION FROM EMPLOYMENT AND RELEASE
This Agreement for Separation of Employment and Release ("Agreement") is
made and entered into between XXXXXX X. XXXXXX ("Xxxxxx") and CITY NATIONAL
BANK, a national banking association ("CNB"), with reference to the following:
X. Xxxxxx was hired by CNB on May 1, 1992;
X. Xxxxxx has voluntarily elected to resign Broidy's CNB
employment effective November 14, 1995;
C. CNB is willing to accept Broidy's resignation;
D. Both Broidy and CNB now wish, by the terms of this Agreement, to
forever and finally resolve all of their respective rights and
obligations relating to Broidy's employment relationship with CNB and
resignation therefrom, except respecting the parties' rights and
obligations under and arising out of this Agreement.
Based on the foregoing, Broidy and CNB knowingly and voluntarily agree as
follows:
1. Broidy's resignation of employment will be effective as of the
close of business on November 14, 1995, and will include Broidy's resignation
from all positions as officer and director of CNB, City National Corporation and
all direct and indirect subsidiaries of either of them.
2. From November 15, 1995, through November 14, 1996, CNB will pay
Broidy an amount equal to the amount which Broidy would have been entitled to
receive as salary from CNB had he remained employed by CNB (the gross amount of
which is $300,000 per year) on CNB's regular semi-monthly pay period dates (and
after deducting any required taxes and other required governmental withholdings)
by deposit to Broidy's present CNB checking account and with advice thereof
mailed to Broidy's residence address as reflected in Broidy's CNB personnel
file. In addition, CNB will pay Broidy an amount equal to the following, less
any required deductions set forth above:
Percentage of CNB's Financial Percentage of
Goal Achieved in 1995 Base Salary
95% 25%
100 50
110 55
120 60
For purposes of the foregoing, the Financial Goal will be measured as set forth
in CNB's Executive Management Bonus Plan in effect for 1995. Such payment will
be made by CNB check on the date on which bonus checks are delivered to other
members of CNB senior management.
3. In addition to the payments described above, CNB agrees to pay
Broidy, by CNB check, the sum of $12,000, less any required deductions set forth
in Paragraph 2 above, in 12 equal installments, the first of which will be paid
10 days after this Agreement becomes final and the remainder of which will be
paid on the first business day of each succeeding calendar month.
4. Pursuant to the policies of insurance CNB maintains, Broidy's CNB
employee insurance benefits will terminate effective November 14, 1995. Because
Broidy is under age 65, Broidy may be eligible for continued group health
insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA") after November 14, 1995, at Broidy's own expense. CNB will
reimburse Broidy for COBRA or comparable privately purchased health insurance
premiums up to $486 per month for the period from November 15, 1995, to November
14, 1996. CNB will have no further obligation to reimburse such expenses in the
event Broidy becomes eligible for coverage as a full-time employee under any
subsequent employer's group medical insurance plan.
5. Broidy will not accrue or be entitled to any personal days,
salary continuation, vacation, or other compensated time off from CNB after
November 14, 1995, other than as set forth in Paragraph 2 above. Broidy will
be paid for all unused vacation (less required taxes and other governmental
withholdings) in the final salary payment due Broidy on November 14, 1995.
6. Any costs or expenses of Broidy which otherwise may have been
reimbursed by CNB (including, but not limited to, country or luncheon club
membership dues, business development expenses, automobile allowances, mileage,
car telephone, meals, etc.) will only be paid by CNB if incurred on or before
November 14, 1995, and to the extent they satisfy CNB reimbursement
requirements. Any such costs or expenses incurred after that date are the sole
responsibility of and are fully assumed by Broidy.
7. Broidy's rights and status as a participant under the CNB Profit
Sharing Plan will continue through November 14, 1995. Broidy acknowledges that
Broidy's rights, status and entitlement, if any, to benefits under that Plan
will be determined in accordance with its terms except as otherwise specifically
provided in this Agreement, including those respecting exercise rights upon
resignation of employment, which date, for purposes thereof and consistent with
the intent of this Agreement, is November 14, 1995. Broidy acknowledges that
under the terms of the Plan, CNB will allocate no portion of its contribution to
the Plan for 1995 to Broidy's account by reason of the termination of Broidy's
employment. However, CNB will pay Broidy an amount equal to Broidy's vested
percentage, being 75%, of the amount that would have been allocated to Broidy's
account from CNB's contribution to the Plan for 1995 had he remained employed by
CNB through December 31, 1995, under CNB's Profit Sharing Plan in effect for
1995, less any required deductions set forth in Paragraph 2 above. Such
payment will be made by CNB check to Broidy no later than March 31, 1996.
8. All CNC incentive and non-statutory stock options awarded to
Broidy through November 14, 1995, that are scheduled to vest on or before May
14, 1996, will vest on their
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respective scheduled vesting dates, and the period within which Broidy may
exercise vested options is extended to the earlier of the date each option
expires by its own terms, or November 14, 1996, all as more particularly set
forth in the First Amendment to Stock Option Agreements attached hereto as
Exhibit "1" and by this reference incorporated herein. Broidy understands that
as a result of the exercise periods of these options being extended beyond their
original terms, the options will, effective three months after November 14,
1995, no longer be treated as incentive stock options for federal income tax
purposes. This may result in significant differences in the tax treatment of
these options, as more fully discussed in Broidy's Participant's Guide to City
National Corporation 1983 and 1985 Stock Option Plans. Except as otherwise
specifically provided in this Agreement, all Broidy's rights and benefits
respecting stock options are determined in accordance with the terms of the
Plans, including those respecting exercise rights upon resignation of
employment, which date, for purposes thereof and consistent with the intent of
this Agreement, is November 14, 1995.
9. Broidy understands that all the payments and benefits set forth
in Paragraphs 2, 3, 4, 7 and 8, above, except payment for accrued unused
vacation, are not required by any of CNB's policies or procedures.
10. Broidy, as stated below, will do or not do the following:
10.1 Broidy has had access to, learned of or obtained customer
lists, customer names, financial information, pricing information, trade
secrets, trade knowledge, know-how, unprinted or printed data, confidential
information or other related tangible or intangible property ("Trade Secrets")
belonging to, used or developed by or for the benefit of, within the possession
or control of, or concerning CNB and/or any current or former customers or
shareholders. All such Trade Secrets will be kept strictly confidential by
Broidy and Broidy will never use, divulge, disclose, or communicate them, either
directly or indirectly, in any way to any other person or entity except as
compelled by law or with the prior written permission of CNB's Chief Executive
Officer or President. Without limiting the foregoing, until November 14, 1996,
Broidy will not directly or indirectly solicit or encourage any person or
organization that was a customer of CNB on November 14, 1995, to become a
customer of any other financial institution;
10.2 After November 14, 1995, Broidy will not be required to
perform any further services for CNB except as necessary to cooperate and assist
in an orderly transition and the investigation and handling (including, but not
limited to, providing information or testifying) of any actual or threatened
court action, arbitration or administrative proceeding relating to any matter
involving Broidy or any of Broidy's duties or responsibilities during employment
with CNB;
10.3 Broidy will immediately return to CNB all files, records,
documents, plans, drawings, specifications, equipment, personal computers,
pictures, videotapes, keys and similar items which are the property of or relate
to CNB and/or any current or former customers or shareholders in Broidy's
possession or control;
10.4 Broidy will not assist in any litigation against CNB
relating to any act or omission occurring prior to the date Broidy executes this
Agreement, except as compelled by law, or in Broidy's own defense if Broidy is
named as a defendant in such litigation; and
3
10.5 Until November 14, 1996, Broidy will not directly or
indirectly solicit or encourage CNB's officers or employees to seek employment
elsewhere unless given prior permission in writing by CNB's Chief Executive
Officer or President.
11. This Agreement, its contents, and the parties' discussions
pertaining to it are confidential. Broidy will not communicate or allow
communication in any manner (written, oral, or otherwise) with respect thereto,
except (1) by Broidy to Broidy's spouse, prospective employers, attorneys, and
tax advisors, if any, who will be informed of and bound by this confidentiality
provision; (2) as compelled by law; or (3) with the prior written approval of
CNB's Chief Executive Officer or President. Also, neither party will ever make
any disparaging statements or remarks about the other. CNB has informed Broidy
that it will suffer serious damages in the event of violation of this paragraph
by Broidy. In the event of a breach of this paragraph by Broidy, CNB will be
entitled to recover from Broidy an amount totalling all payments made by CNB
under Paragraphs 2, 3, 4 and 7 of this Agreement, and all other provisions
of this Agreement will remain in full force and effect.
12. The parties acknowledge and agree that in the event of any breach
by either party of the promises or obligations set forth in Paragraphs 10 or
11 above, the non-breaching party would suffer great and irreparable harm,
injury, and damage, would encounter extreme difficulty in attempting to prove
the actual amount of damages suffered as a result of such breach, and would
therefore not be reasonably or adequately compensated in damages in any action
at law. The parties therefore agree that in addition to any other remedy the
non-breaching party may have at law, in equity, by statute, or otherwise, in the
event of any breach of any of the promises or obligations set forth in either of
such Paragraphs, the non-breaching party will be entitled to seek and receive
temporary, preliminary and permanent injunctive and other equitable relief from
an arbitrator(s) selected under Paragraph 18, below, to enforce those promises
or obligations, or otherwise to prevent the violation of any of the terms or
provisions of such Paragraph, without the necessity of proving the amount of any
actual damage resulting therefrom. However, nothing in this paragraph is
intended as a waiver by either party of any other rights such party may have
against the other at law, in equity, by statute, or otherwise, arising out of,
in connection with or resulting from any breach of this Agreement.
13. By signing this Agreement, Broidy and Broidy's heirs, executors,
administrators, successors and assigns, if any, hereby absolutely and forever
release and discharge CNB and its parent, subsidiaries, affiliates, related and
correspondent entities and any of its or their current or former directors,
officers, employees, representatives, administrators, agents and attorneys, and
any successors-in-interest and assigns (collectively "CNB Parties") from any and
all claims, demands, losses, actions, causes of action, suits, liabilities,
obligations, controversies, damages, compensation, costs, expenses, attorneys'
fees, or the like, of every kind, nature or character, whether known or unknown,
suspected or unsuspected, direct or indirect, derivative or otherwise, which
Broidy now holds or owns or at any time heretofore held or owned, or may at any
time in the future hold or own, based on, arising out of or in connection with
any matter relating to Broidy's employment with CNB, the resignation of that
employment, or any basis therefor, or any other matter occurring or arising on
or before the date Broidy executes this Agreement, except as provided in this
Agreement (collectively "Claims"). Claims released under this Agreement
include, but are not limited to, the following:
4
13.1 Claims for injuries to Broidy arising out of or relating to
the course and scope of employment with CNB;
13.2 Claims for alleged violations of any contracts, express or
implied, or any covenants of good faith and fair dealing, express
or implied;
13.3 Claims of any legal restrictions on CNB's right to
discipline or terminate employees, any "constructive discharge"
or "wrongful discharge," or any tort;
13.4 Claims for defamation, invasion of privacy, emotional
and/or personal injury or distress or the like;
13.5 Claims for sick leave, vacation, compensated time off,
workers' compensation, separation pay or severance; and
13.6 Claims for violation of any local, state, federal or other
governmental statute, regulation or ordinance, as amended,
including, without limitation: Title VII of the Civil Rights Act
of 1964 (race, color, religion, sex (including pregnancy), and
national origin discrimination); 42 U.S.C. (S)1981
(discrimination in the making and enforcement of contracts); Age
Discrimination in Employment Act (42 U.S.C. (S)(S)621-634);
Federal and California Equal Pay Acts (29 U.S.C. (S)206(d)(1) and
California Labor Code (S)(S)3200, et seq.); California Fair
Employment and Housing Act (California Govt. Code (S)12940 et
seq.) (discrimination, including race, color, national origin,
ancestry, physical handicap, medical condition, marital status,
sex (including pregnancy), or age); Executive Order 11246 (race,
color, religion, sex (including pregnancy), and national origin
discrimination); Executive Order 11141 (age discrimination);
Rehabilitation Act of 1973 (29 U.S.C. (S)(S)503 and 504); Older
Workers Benefit Protection Act amendments to the Age
Discrimination in Employment Act (29 U.S.C. (S)(S)621 et seq.);
Civil Rights Act of 1991; Workers' Compensation Act (California
Labor Code (S)1197.5, et seq.); Americans with Disabilities Act;
and Employee Retirement Income Security Act of 1974 ("ERISA").
This Agreement, however, does not include a release of Broidy's right, if
any, to pension, retiree health, or similar benefits under any standard
retirement program of CNB, or rights or claims Broidy may have under the Age
Discrimination in Employment Act which arise after the date Broidy executes this
Agreement.
14. Broidy intends and agrees that this Agreement will be effective
as a full, final and general release of and from all matters covered herein. In
furtherance thereof, Broidy acknowledges that Broidy is familiar with, and that
Broidy's attorney of record, if any, has advised Broidy of, California Civil
Code (S)1542, 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 EXECUTION OF THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
5
Broidy expressly waives and releases any right or benefit which Broidy
has or may in the future have under California Civil Code (S)1542 to the fullest
extent that such rights or benefits may be lawfully waived and released.
Further, Broidy acknowledges that Broidy may hereafter discover facts different
from or in addition to those facts now known or believed by Broidy to be true
with respect to any or all of the matters covered by this Agreement, and agrees
that this Agreement will nevertheless be binding and remain in full and complete
force and effect.
15. Broidy represents that Broidy has not filed any complaint(s),
charge(s), claim(s), or application(s) against any CNB Party with any local,
state or federal agency or court. Broidy represents and agrees that Broidy will
never file any such complaint, charge, claim or application against CNB at any
time hereafter based upon any matter relating to employment with CNB or Broidy's
resignation therefrom, or based upon any matter arising on or before the date
Broidy executes this Agreement, except respecting Broidy's rights set forth in
this Agreement. Broidy further represents and agrees that if any agency or
court assumes jurisdiction of any such complaint, charge, claim or application
against CNB on behalf of Broidy, Broidy will request such agency or court to
withdraw from and/or to dismiss the matter with prejudice; and if withdrawal or
dismissal cannot be or is not effected, Broidy agrees that CNB will be entitled
to a credit from Broidy in an amount equivalent to all payments and benefits to
Broidy by CNB under Paragraphs 2, 3, 4 and 7 of this Agreement, for any
amount Broidy receives as a result of any such complaint, charge, claim or
application.
16. Nothing contained in this Agreement will be construed as an
admission of liability or wrongdoing of any kind by any party hereto, and all
such liability or wrongdoing is expressly denied.
17. Broidy acknowledges that if this Agreement becomes effective,
Broidy's employment with CNB will end irrevocably on November 14, 1995, by
voluntary resignation, and CNB will have no obligation to resume such employment
or to re-employ Broidy in any position or capacity whatsoever in the future.
The foregoing will not preclude CNB from re-employing Broidy at any time in the
future in CNB's sole discretion, provided, however, that Broidy will have no
greater rights with respect to re-employment or any application or request for
re-employment than applicants who have not previously been employed by CNB.
18. If any dispute, controversy or claim arises out of or relates to
this Agreement, or the breach thereof, and if such dispute cannot be settled
through direct discussions, the parties agree that such dispute will be resolved
exclusively by arbitration in accordance with the California Employment Dispute
Resolution Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. Each party will bear its own costs and attorneys' fees
incurred in connection with any such arbitration.
BY SIGNING THIS AGREEMENT, CNB AND BROIDY EACH AGREE TO WAIVE THE RIGHT
TO A JURY TRIAL SECURED BY ARTICLE I, SECTION 16 OF THE CALIFORNIA
CONSTITUTION.
19. Broidy acknowledges that before signing this Agreement, Broidy
has been encouraged by CNB to consult with an attorney about this Agreement's
terms, and Broidy understands that whether or not to do so is Broidy's sole
decision. If Broidy does, Broidy agrees
6
to pay Broidy's own attorneys' fees and costs, if any, arising out of or in
connection with this Agreement or its subject matter.
20. This Agreement contains and expresses the entire and final
agreement of the parties with respect to the matters covered herein, and
supersedes all negotiations, prior discussions and preliminary agreements. No
promises or representations, express or implied, concerning the Agreement have
been made by CNB to Broidy other than those contained in this Agreement. Any
alteration or modification to this Agreement must be in writing and signed by
each party to it or its duly authorized representative. In the event the
arbitrator(s) selected under Paragraph 18, above, a court of competent
jurisdiction or a governmental agency determines, upon the request or petition
of Broidy, that any provision of this Agreement, or application of it, is void,
invalid, unenforceable, or contrary to law for any reason, its remaining
provisions shall, at CNB's option, continue to be binding and fully enforceable;
in such a case, if CNB elects not to enforce the remainder of this Agreement,
Broidy agrees to return, in full or in part, as determined by CNB, any and all
payments received in exchange for agreeing to this Agreement.
21. Each party to this Agreement represents and warrants that he or
it has not assigned, transferred and/or granted to any other person any claim or
portion thereof against any other party to this Agreement.
22. This Agreement will be binding upon the heirs, executors,
administrators, successors and assigns of the parties hereto, provided, however,
that Broidy will not be entitled to encumber, create a lien upon, assign or
transfer any payments due under this Agreement.
23. This Agreement will be construed and enforced in accordance with
the laws of California to the extent such laws are not preempted by applicable
federal law.
24. This Agreement will not impair or alter Broidy's rights, if any,
to indemnification or payment of defense costs or expenses from CNB as provided
by CNB's Articles of Association, applicable law or pursuant to that certain
written agreement between it and Broidy, dated June 11, 1992, or from CNC
pursuant to that certain written agreement between it and Broidy, dated February
26, 1993, true and correct copies of which are attached hereto and incorporated
herein by this reference as Exhibit "2".
25. Broidy understands that Broidy has been given a period of at
least 21 consecutive calendar days to review and consider this Agreement before
signing it. Broidy further understands Broidy may revoke this Agreement within
7 days after signing it. Revocation is effective upon written notice thereof
being received by Xxxxxxxx Xxxxxxxxxxxx, Executive Vice President and Manager of
CNB's Human Resources Division, 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, no later than the close of business on the 7th day after
Broidy signs this Agreement. If Broidy revokes this Agreement, it will not be
effective or enforceable, and Broidy will not receive, or will be required to
immediately and fully reimburse CNB for, any payments or benefits pursuant to
this Agreement. If Broidy does not revoke the Agreement, it will become
effective on the 8th day after Broidy signs it.
7
THE UNDERSIGNED PARTIES, AND EACH OF THEM, ACKNOWLEDGE THAT THEY HAVE
CAREFULLY READ THIS AGREEMENT FOR SEPARATION OF EMPLOYMENT AND RELEASE IN ITS
HAVE HAD THE OPPORTUNITY TO DISCUSS THE CONTENTS OF THE AGREEMENT WITH
RESPECTIVE ATTORNEYS, IF ANY, AND, AS A RESULT, FULLY UNDERSTAND THE TERMS AND
CONSEQUENCES OF THE AGREEMENT. BASED ON THEIR KNOWLEDGE AND UNDERSTANDING OF THE
AGREEMENT, THE PARTIES REPRESENT AND WARRANT THAT THEY FREELY AND VOLUNTARILY
ENTER INTO IT ON THE DATE SET FORTH BELOW.
Dated: November 3 , 1995 /s/ Xxxxxx X. Xxxxxx
---------- ---------------------
XXXXXX X. XXXXXX
CITY NATIONAL CORPORATION, a Delaware CITY NATIONAL BANK, a national
corporation, as to Paragraph 24 only banking association
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
---------------------- ----------------------
Its: Vice Chairman and CEO Its: Chairman and CEO
---------------------- -----------------
APPROVED AS TO FORM
AND CONTENT:
OFFICE OF THE GENERAL COUNSEL
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------- ----------------------------
XXXXXX X. XXXXXX, ESQ. XXXXXXX X. XXXXXXX, XX.
Attorney for XXXXXX X. XXXXXX General Counsel
Attorney for CITY NATIONAL BANK and
CITY NATIONAL CORPORATION
8
FIRST AMENDMENT TO STOCK OPTION AGREEMENTS
This First Amendment to Stock Option Agreements (the "Amendment") is made
and entered into as of the 3d day of November, 1995, by and between CITY
------
NATIONAL CORPORATION, a Delaware corporation ("Company"), and XXXXXX X. XXXXXX
("Optionee"), with reference to the following:
A. Optionee is Vice Chairman of the Company and Vice Chairman and
Chief Administrative Officer of CITY NATIONAL BANK ("Bank"), a wholly owned
subsidiary of the Company, and holds incentive and non-statutory stock options
("Options"), as defined in Section 422 of the Internal Revenue Code of 1954, as
amended, issued by the Company pursuant to the City National Corporation 1983
Stock Option Plan or the City National Corporation 1985 Stock Option Plan
(collectively the "Plans"), as set forth in certain Stock Option Agreements (the
"Agreements"), as follows:
Number of Shares Vested and
Date of Grant Outstanding on November 14, 1995
5/1/92 27,255
12/16/92 27,255
12/15/93 18,750
2/22/95 0
B. Under the terms of the Agreements, Options to purchase the following
additional shares are scheduled to vest on or before May 14, 1996:
Date of Grant Number of Shares Vesting Date
5/1/92 0
12/16/92 13,627 12/16/95
12/15/93 18,750 12/15/95
2/22/95 12,500 2/22/96
C. Pursuant to the terms of an Agreement for Separation From
Employment and Release, Optionee will resign employment with the Company and the
Bank effective November 14, 1995 (the "Separation Date").
D. The Company and Optionee desire to amend the terms of the
Agreements and the Options in order to extend the vesting and exercise period
thereof.
NOW, THEREFORE, in consideration of the foregoing and the performance of
the mutual covenants contained herein, it is hereby agreed as follows:
EXHIBIT "1"
1. Unless otherwise defined herein, all terms used in this Amendment are
defined as set forth in the Agreements amended hereby.
2. All Agreements between the Company and Optionee are hereby
amended as set forth herein:
2.1 Notwithstanding any provision to the contrary in Paragraph 2 of each
of the Agreements, all unvested Options that would, absent the
termination of Optionee's employment, vest on or before May 14, 1996,
will vest as scheduled, and no unvested Option not vested on May 14,
1996, will vest or otherwise become exercisable. The "Termination Date"
will be the earlier of (a) ten (10) years after the date on which the
Option was granted to Optionee, or (b) November 14, 1996.
2.2 Paragraph 4 of each Agreement is hereby amended in its entirety to
read as follows:
"The Option and all rights granted under this Agreement will terminate on
the Termination Date. In the event of Optionee's death or incapacity,
the Option and all rights granted under this Agreement, to the extent
such rights have not theretofore been exercised, may be exercised by
Optionee's personal representative or, in the event of Optionee's death,
by the person or persons to whom the Option passes by will or by the
applicable laws of descent and distribution."
3. Effective February 14, 1996, all unexercised Options will no
longer be deemed to be incentive stock options, as defined in Section 422 of the
Internal Revenue Code of 1954, as amended, and Treasury regulations thereunder.
4. Except as set forth above, the Options and Agreements remain in
full force and effect according to their terms.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first set forth above.
CITY NATIONAL CORPORATION, a Delaware
corporation
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------- -------------------------------------
XXXXXX X. XXXXXX, Optionee XXXXXXX X. XXXXXXX, XX., Senior Vice
President, Secretary and General Counsel
2
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is made and entered into this 11th day of
----
June , 1992, between City National Bank, a national banking association ("CNB")
----- --
and XXXXXX X. XXXXXX (the "Indemnitee").
--------------------
RECITALS
--------
A. The Indemnitee is a member of the Board of Directors of CNB.
B. The Board of Directors of CNB has determined that highly competent
persons will be difficult to retain as directors of CNB unless such persons are
adequately protected against liabilities incurred in performance of their
services as directors of CNB.
C. It is, therefore, in the best interests of CNB to attract and retain
such directors by providing adequate protection against such liabilities by
means of Indemnification Agreements with individual directors, such as the
Indemnitee.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the promises and covenants contained
herein and as an inducement to the Indemnitee to continue to serve as a director
of CNB, CNB and the Indemnitee do hereby agree as follows:
1 Indemnity of Director. CNB agrees to indemnify and hold harmless the
Indemnitee to the fullest extent permissible under its Articles of Association,
Bylaws and applicable law, as the same exists or may be amended from time to
time. Provided, however, that no amendments to the Articles of Association or
Bylaws subsequent to the date hereof shall eliminate or lessen the availability
or scope of indemnification herein. In addition, the Indemnitee's
indemnification rights shall include but not be limited to the rights contained
in the following Paragraphs except to the extent expressly prohibited by
applicable law.
2 Indemnification in Third-Party Actions. CNB shall indemnify and hold
harmless the Indemnitee from and against all expenses (including attorneys'
fees), liability, judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee in connection with any present or future
threatened, pending or completed action, suit or proceeding, or appeal thereof,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of CNB) if the Indemnitee is a party or threatened to be made
a party to such action, suit or proceeding by reason of the fact that Indemnitee
is or was a director of CNB, or of any subsidiary of CNB, or is or was serving
at the request of CNB as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise; provided,
however, that the Indemnitee shall be entitled to such indemnification only if
Indemnitee acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of CNB, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
3 Indemnification in Proceedings by or in the Name of CNB. CNB shall indemnify
and hold harmless the Indemnitee from and against expenses (including attorney'
fees), judgments and amounts paid in settlement actually and reasonably incurred
by Indemnitee in connection with the defense or settlement of any present or
future threatened, pending or completed action or suit,
EXHIBIT "2"
Page 1
or appeal thereof, by or in the right of CNB to procure a judgment in its favor
if the Indemnitee is a party or threatened to be a party to such action or suit
by reason of the fact that Indemnitee is or was a director of CNB, or of any
subsidiary of CNB, or is or was serving at the request of CNB as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise; provided, however, that the Indemnitee shall be
entitled to such indemnification only if Indemnitee acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of CNB and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to
be liable in the performance of his or her duty to CNB if and to the extent that
the court in which such action or suit was brought shall determine that the
Indemnitee is not entitled to such indemnification.
4 Liability Insurance. Except as precluded by the last sentence of this
Paragraph 4, CNB will undertake reasonable efforts to maintain policies of
Directors and Officers Liability Insurance in reasonable amounts from
established and reputable insurers. CNB shall not be liable under this
Indemnification Agreement for any amount of any claim for which the Indemnitee
has been paid, or is legally entitled to payment, under such insurance policies
or under any other valid insurance policies maintained in the future by CNB for
Indemnitee's benefit. Any such Directors or Officers Liability Insurance
purchased by CNB shall explicitly exclude such insurance coverage for a formal
order of an appropriate bank regulatory agency assessing civil money penalties
against a bank director or officer.
Any such policies maintained by CNB will expire under expiration terms as
therein set forth. CNB is uncertain whether such policies will be renewed or if
not renewed can be replaced with policies of similar coverage at reasonable
cost. CNB shall not be required to maintain the policies presently in effect or
to replace such policies if, in the judgment of the Board of Directors of CNB,
the cost of such policies is not reasonable in relation to the coverage
provided. If CNB so decides not to maintain the current policies or replace
them with policies of similar coverage, CNB agrees to indemnify and hold
harmless the Indemnitee to the extent of coverage which would have been provided
by such policies to the fullest extent permissible under applicable law, in
addition to any other indemnification provided by this Agreement.
5 Advances of Expenses. Expenses incurred by the Indemnitee in connection with
any action, suit, proceeding or appeal thereof, described in Paragraphs 2 and 3
above, shall be paid by CNB in advance of the final disposition of such action,
suit or proceeding within twenty (20) days of receipt of an undertaking by the
Indemnitee to repay such amount if it is ultimately determined by the Board of
Directors, independent counsel, the shareholders or a court, as provided in
Paragraph 8 of this Indemnification Agreement, that Indemnitee is not entitled
to be indemnified by CNB or not entitled to full indemnification by CNB.
6 Indemnification Hereunder Not Exclusive. Indemnification and advancement of
expenses set forth in this Indemnification Agreement shall not be exclusive of
other rights the Indemnitee may have under applicable law, other agreements
between CNB and the Indemnitee, the Articles of Association or Bylaws of CNB, by
vote of disinterested directors of CNB or by vote of the shareholders of CNB.
7 Continuation of Indemnity. The indemnification and advancement of expenses
provided by, or granted pursuant to this Indemnification Agreement shall
continue after the Indemnitee has ceased to be a director of CNB and shall inure
to the benefit of the heirs, executors and administrators of the Indemnitee.
Page 2
8 Indemnification Procedure; Determination of Right to Indemnification. Upon
written request by the Indemnitee for indemnification under Paragraphs 2 and 3
above, the Indemnitee's entitlement to such indemnification shall be made by (1)
the Board of Directors of CNB by a majority vote of a quorum consisting of
directors who were not parties to the action, suit, settlement or proceeding, or
(2) if such quorum is not obtainable, by independent counsel, in a written
opinion, or (3) by the shareholders of CNB. Determination of entitlement to
indemnification shall be made within sixty (60) days of receipt by CNB of a
written request for indemnification by the Indemnitee. The Indemnitee's request
shall be accompanied by documentation reasonably available to the Indemnitee
relating to the Indemnitee's entitlement to be indemnified. All reasonable
expenses (including attorney's fees) relating to the Indemnitee's request for
indemnification under the Indemnification Agreement shall be paid by CNB
regardless of the outcome of the determination as to the Indemnitee's
entitlement to indemnification. If such determination is unfavorable to the
Indemnitee or if the Indemnitee has made no request for indemnification
hereunder or no determination is otherwise made, the Indemnitee may, within two
(2) years after such determination, or, if no determination has been made,
within two (2) years after the Indemnitee has incurred the expense or otherwise
made a payment for which the Indemnitee seeks indemnification, petition any
appropriate court of competent jurisdiction to determine whether the Indemnitee
is entitled to indemnification hereunder the terms of this Indemnification
Agreement. The Indemnitee shall not be prejudiced in such judicial proceeding
by a prior determination that the Indemnitee is not entitled to indemnification.
CNB shall be precluded from asserting in such court that it is not bound by the
provisions of the Indemnification Agreement. CNB shall pay all expenses
(including attorneys' fees) actually and reasonably incurred by the Indemnitee
in connection with such judicial determination.
9 No Presumption. If any action, suit or proceeding described in Paragraphs 2
and 3 above shall be terminated by judgment, order, settlement or conviction or
upon a plea of nolo contendere or its equivalent, no presumption shall be
---------------
created that the Indemnitee did not act in good faith and in a manner which such
Indemnitee reasonably believed to be in or not opposed to the best interests of
CNB, and, with respect to any criminal action or proceeding, that the Indemnitee
had reasonable cause to believe that his or her conduct was unlawful.
10 Limitations on Indemnification. Notwithstanding any other provision of the
Indemnification Agreement, CNB shall not be liable to indemnify the Indemnitee
in connection with any claim against Indemnitee:
10.1 For which the Indemnitee is indemnified by CNB other than under
this Indemnification Agreement;
10.2 If a court of competent jurisdiction has rendered a final decision
that indemnification relating to the claim would be unlawful;
10.3 If, pursuant to Section 16(b) of the Securities Exchange Act of
1934, as amended, or similar provisions of any state or federal statutory
law, the claim is for an accounting of profits made from the purchase and
sale by the Indemnitee of securities of CNB;
10.4 If a final decision by a court of competent jurisdiction shall
adjudge the Indemnitee's conduct to have been knowingly fraudulent or
deliberately dishonest and to be material to the claim adjudicated by the
court;
Page 3
10.5 If the claim was based upon the Indemnitee's deriving an unlawful
personal benefit and a court of competent jurisdiction adjudges that such
benefit was unlawful in a final decision;
10.6 Arising out of an administrative proceeding or action instituted by
an appropriate bank regulatory agency which proceeding or action results
in a final order assessing civil money penalties or requiring appropriate
action by an individual or individuals in the form of payments to CNB.
11 Savings Clause. if any provision of this Indemnification Agreement shall be
held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions (including portions of any paragraph
of this Indemnification Agreement containing an invalid, illegal or
unenforceable provision) shall not be impaired thereby. To the extent
practicable, any invalid, illegal or unenforceable provision of this
Indemnification Agreement shall be deemed modified as necessary to comply with
all applicable laws.
12 Counterparts. This Indemnification Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13 Interpretation. Headings are for convenience only and shall not be used in
construing meaning. This Indemnification Agreement shall be governed by, and
construed in accordance with the laws of the State of Delaware.
14 Notices. All notices or other communication hereunder shall be in writing
and shall be deemed to be effective and to have been duly given if delivered by
certified mail, postage prepaid, return receipt requested to the respective
parties, as follows:
"CNB" City National Bank
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: General Counsel
"Indemnitee" XXXXXX X. XXXXXX
---------------------------
AT CITY NATIONAL BANK
---------------------------
000 X. XXXXXXX DR.
---------------------------
XXXXXXX HILLS, CAL. 90210
---------------------------
or to such other address as a party may have furnished to the other in writing
in accordance with this paragraph, except that notice of change of address shall
only be effective upon receipt.
15 Successors and Assigns. This Indemnification Agreement shall be binding
upon CNB and its successors and assigns and shall inure to the benefit of the
Indemnitee and his or her heirs, executors and administrators.
16 Amendment, Waiver. No amendment of this Indemnification Agreement shall be
binding unless executed in writing by both parties hereto. No waiver of any
provision of this Indemnification Agreement shall constitute a waiver of any
other provision hereof.
Page 4
17 Notification of Claims. The Indemnitee shall promptly notify CNB in writing
upon being served with any summons, citation, subpoena, indictment, complaint,
information or other document relating to any matter concerning which the
Indemnitee may be entitled to indemnification hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Indemnification
Agreement to be duly executed and signed as of the date first above written.
"CNB" City National Bank, a national
banking association
By: /s/ Xxxx Xxxxxxxxx
-------------------
Its: CHAIRMAN/CEO
-------------
"Indemnitee" /s/ Xxxxxx X. Xxxxxx
---------------------
Page 5
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is made and entered into this 26th day of
----
February, 1993, between City National Corporation, a Delaware corporation (the
-------- ----
"Company") and Xxxxxx X. Xxxxxx (the "Indemnitee"), an officer and/or member of
----------------
the Board of Directors of the Company.
RECITALS
--------
A. The Indemnitee is an officer and/or member of the Board of
Directors of the Company.
B. The Board of Directors of the Company has determined that highly
competent persons will be difficult to retain as officers and/or directors of
the Company unless such persons are adequately protected against liabilities
incurred in performance of their services as officers and/or directors of the
Company.
C. It is, therefore, in the best interests of the Company to attract
and retain such officers and/or directors by providing adequate protection
against such liabilities by means of Indemnification Agreements with individual
officers and/or directors, such as the Indemnitee.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the promises and covenants contained
herein and as an inducement to the Indemnitee to continue to serve as an officer
and/or director of the Company, the Company and the Indemnitee do hereby agree
as follows:
1. Indemnity of Director/Officer. The Company agrees to indemnify and hold
harmless the Indemnitee to the fullest extent permissible under its Certificate
of Incorporation, Bylaws and applicable law, as the same exists or may be
amended from time to time. Provided, however, that no amendments to the
Certificate of Incorporation or Bylaws subsequent to the date hereof shall
eliminate or lessen the availability or scope of indemnification herein. In
addition, the Indemnitee's indemnification rights shall include but not be
limited to the rights contained in the following Paragraphs except to the extent
expressly prohibited by applicable law.
2. Indemnification in Third-Party Actions. The Company shall indemnify and
hold harmless the Indemnitee from and against all expenses (including attorneys'
fees), liability, judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee in connection with any present or future
threatened, pending or completed action, suit or proceeding, or appeal thereof,
whether civil, criminal, administrative or investigative (other than
EXHIBIT "2"
Page 1
an action by or in the right of the Company) if the indemnitee is a party or
threatened to be made a party to such action, suit or proceeding by reason of
the fact that Indemnitee is or was a director, member of any committee of the
board, officer, employee or agent of the Company, or of any subsidiary of the
Company, or is or was serving at the request of the Company as a director,
member of any committee of the board, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise; provided,
however, that the Indemnitee shall be entitled to such indemnification only if
Indemnitee acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
3. Indemnification in Proceedings by or in the Name of the Company. The
Company shall indemnify and hold harmless the Indemnitee from and against
expenses (including attorney' fees), judgments and amounts paid in settlement
actually and reasonably incurred by Indemnitee in connection with the defense or
settlement of any present or future threatened, pending or completed action or
suit, or appeal thereof, by or in the right of the Company to procure a judgment
in its favor if the Indemnitee is a party or threatened to be a party to such
action or suit by reason of the fact that Indemnitee is or was a director,
member of any committee of the board, officer, employee or agent of the Company,
or of any subsidiary of the Company, or is or was serving at the request of the
Company as a director, member of any committee of the board, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise; provided, however, that the Indemnitee shall be entitled to such
indemnification only if Indemnitee acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the Company
and except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable in the
performance of his or her duty to the Company if and to the extent that the
court in which such action or suit was brought shall determine that the
Indemnitee is not entitled to such indemnification.
4. Liability Insurance. The Company will undertake reasonable efforts to
maintain policies of Directors and Officers Liability Insurance in reasonable
amounts from established and reputable insurers. The Company shall not be
liable under this Indemnification Agreement for any amount of any claim for
which the Indemnitee has been paid, or is legally entitled to payment, under
such insurance policies or under any other valid insurance policies maintained
in the future by the Company for Indemnitee's benefit.
Any such policies maintained by the Company will expire under expiration
terms as therein set forth. The Company is uncertain whether such policies will
be renewed or if not renewed can be replaced with policies of similar coverage
at reasonable cost. The Company shall not be required to maintain the policies
presently in effect or to replace such policies if, in the judgment of the Board
of Directors of the Company, the cost of such policies is not reasonable in
relation to the coverage provided. If the Company so decides not to maintain
the current policies or replace them with policies of similar coverage, the
Company agrees to indemnify and hold harmless the Indemnitee to the extent of
coverage which would have been provided by such policies to the fullest extent
permissible under applicable law, in addition to any other indemnification
provided by this Agreement.
Page 2
5. Advances of Expenses. Expenses incurred by the Indemnitee in connection
with any action, suit, proceeding or appeal thereof, described in Paragraphs 2
and 3 above, shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding within twenty (20) days of receipt of an
undertaking by the Indemnitee to repay such amount if it is ultimately
determined by the Board of Directors, independent counsel, the shareholders or a
court, as provided in Paragraph 8 of this Indemnification Agreement, that
Indemnitee is not entitled to be indemnified by the Company or not entitled to
full indemnification by the Company.
6. Indemnification Hereunder Not Exclusive. Indemnification and advancement
of expenses set forth in this Indemnification Agreement shall not be exclusive
of other rights the Indemnitee may have under applicable law, other agreements
between the Company and the Indemnitee, the Certificate of Incorporation or
Bylaws of the Company, by vote of disinterested directors of the Company or by
vote of the shareholders of the Company.
7. Continuation of Indemnity. The indemnification and advancement of
expenses provided by, or granted pursuant to this Indemnification Agreement
shall continue after the Indemnitee has ceased to be an officer and/or director
of the Company and shall inure to the benefit of the heirs, executors and
administrators of the Indemnitee.
8. Indemnification Procedure; Determination of Right to Indemnification.
Upon written request by the Indemnitee for indemnification under Paragraphs 2
and 3 above, the Indemnitee's entitlement to such indemnification shall be made
by (1) the Board of Directors of the Company by a majority vote of a quorum
consisting of directors who were not parties to the action, suit, settlement or
proceeding, or (2) if such quorum is not obtainable, by independent counsel, in
a written opinion, or (3) by the shareholders of the Company. Determination of
entitlement to indemnification shall be made within sixty (60) days of receipt
by the Company of a written request for indemnification by the Indemnitee. The
Indemnitee's request shall be accompanied by documentation reasonably available
to the Indemnitee relating to the Indemnitee's entitlement to be indemnified.
All reasonable expenses (including attorney's fees) relating to the
Indemnitee's request for indemnification under the Indemnification Agreement
shall be paid by the Company regardless of the outcome of the determination as
to the Indemnitee's entitlement to indemnification. If such determination is
unfavorable to the Indemnitee or if the Indemnitee has made no request for
indemnification hereunder or no determination is otherwise made, the Indemnitee
may, within two (2) years after such determination, or, if no determination has
been made, within two (2) years after the Indemnitee has incurred the expense or
otherwise made a payment for which the Indemnitee seeks indemnification,
petition the Court of Chancery of the State of Delaware or any other of
competent jurisdiction to determine whether the Indemnitee is entitled to
indemnification hereunder the terms of this Indemnification Agreement. The
Indemnitee shall not be prejudiced in such judicial proceeding by a prior
determination that the Indemnitee is not entitled to indemnification. The
Company shall be precluded from asserting in such court that it is not bound by
the provisions of the Indemnification Agreement. The Company shall pay all
expenses (including attorneys' fees) actually and reasonably incurred by the
Indemnitee in connection with such judicial determination.
Page 3
9. No Presumption. If any action, suit or proceeding described in
Paragraphs 2 and 3 above shall be terminated by judgment, order, settlement or
conviction or upon a plea of nolo contendere or its equivalent, no presumption
---------------
shall be created that the Indemnitee did not act in good faith and in a manner
which such Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, that the Indemnitee had reasonable cause to believe that his or her
conduct was unlawful.
10. Limitations on Indemnification. Notwithstanding any other provision of
the Indemnification Agreement, the Company shall not be liable to indemnify the
Indemnitee in connection with any claim against Indemnitee:
10.1 For which the Indemnitee is indemnified by the Company other than
under this Indemnification Agreement;
10.2 If a court of competent jurisdiction has rendered a final
decision that indemnification relating to the claim would be unlawful;
10.3 If, pursuant to Section 16(b) of the Securities Exchange Act of
1934, as amended, or similar provisions of any state or federal statutory law,
the claim is for an accounting of profits made from the purchase and sale by the
Indemnitee of securities of the Company;
10.4 If a final decision by a court of competent jurisdiction shall
adjudge the Indemnitee's conduct to have been knowingly fraudulent or
deliberately dishonest and to be material to the claim adjudicated by the court;
or
10.5 If the claim was based upon the Indemnitee's deriving an unlawful
personal benefit and a court of competent jurisdiction adjudges that such
benefit was unlawful in a final decision.
11. Savings Clause. If any provision of this Indemnification Agreement shall
be held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions (including portions of any paragraph
of this Indemnification Agreement containing an invalid, illegal or
unenforceable provision) shall not be impaired thereby. To the extent
practicable, any invalid, illegal or unenforceable provision of this
Indemnification Agreement shall be deemed modified as necessary to comply with
all applicable laws.
12. Counterparts. This Indemnification Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13. Interpretation; Governing Law. Headings are for convenience only and
shall not be used in construing meaning. This Indemnification Agreement shall
be governed by, and construed in accordance with, the laws of the State of
Delaware.
14. Notices. All notices or other communication hereunder shall be in
writing and shall be deemed to be effective and to have been duly given if
delivered by certified mail, postage
Page 4
prepaid, return receipt requested to the respective parties, as follows:
"Company" City National Corporation
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: General Counsel
"Indemnitee" Xxxxxx X. Xxxxxx
----------------------------------
c/o City National Bank
--------------------------------
000 Xxxxx Xxxxxxx Xxxxx
------------------------------
Xxxxxxx Xxxxx, XX 00000
--------------------------------
or to such other address as a party may have furnished to the other in writing
in accordance with this paragraph, except that notice of change of address shall
only be effective upon receipt.
15. Successors and Assigns. This Indemnification Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the benefit
of the Indemnitee and his or her heirs, executors and administrators.
16. Amendment, Waiver. No amendment of this Indemnification Agreement shall
be binding unless executed in writing by both parties hereto. No waiver of any
provision of this Indemnification Agreement shall constitute a waiver of any
other provision hereof.
17. Notification of Claims. The Indemnitee shall promptly notify the Company
in writing upon being served with any summons, citation, subpoena, indictment,
complaint, information or other document relating to any matter concerning which
the Indemnitee may be entitled to indemnification hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Indemnification
Agreement to be duly executed and signed as of the date first above written.
"Company" City National Corporation, a
Delaware corporation
By: /s/ Xxxx Xxxxxxxxx
-------------------
Xxxx Xxxxxxxxx
Chairman of the Board
Its:
------------------------------------
"Indemnitee" /s/ Xxxxxx X. Xxxxxx
---------------------
Xxxxxx X. Xxxxxx
Page 5
