EXHIBIT 10.1
EXECUTIVE AGREEMENT
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THIS AGREEMENT, effective as of April 1, 2004 , is entered into by and
between Union Bank of California, N.A., a National Banking Association (the
"Bank"), and Xxxxxx X. Xxxxx ("Xx. Xxxxx"), an individual.
WHEREAS, Xx. Xxxxx currently is employed by the Bank as an Executive Vice
President and its Chief Credit Officer;
WHEREAS, Xx. Xxxxx has been designated a policy making officer of the Bank
and UnionBanCal Corporation ("UNBC");
WHEREAS, Xx. Xxxxx and UNBC are parties to a Change-of-Control Agreement
dated May 1, 2003 (the "Change-of-Control Agreement");
WHEREAS, the parties wish to terminate and supersede the existing terms and
conditions of Xx. Xxxxx'x employment with the Bank, including but not limited to
that certain Employment Agreement between Xx. Xxxxx and the Bank, dated
September 21, 2000 and subsequent amendments and modifications thereto (the
"2000 Employment Agreement"), but excluding the Change-of-Control Agreement; and
WHEREAS, the Bank desires to continue to secure the services of Xx. Xxxxx
and Xx. Xxxxx desires to perform services for the Bank on the terms and
conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the foregoing and of the material
promises and conditions contained in this Agreement, the parties agree as
follows:
1. REPRESENTATIONS AND WARRANTIES.
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The Bank represents that it is fully authorized to enter into this
Agreement. Xx. Xxxxx warrants that he is under no employment contract, bond,
confidentiality agreement, or any other obligation which would violate or be in
conflict with the terms and conditions of this Agreement or encumber his
performance of duties assigned to him by the Bank. Xx. Xxxxx further warrants
that he has not signed or committed to any employment or consultant duties or
other obligations which would divert his attention from the duties assigned to
him by the Bank under this Agreement. The parties do not intend to include
within the meaning of this paragraph Xx. Xxxxx'x service, in accordance with
Bank policy, for nonprofit, charitable, or trade associations or on the boards
of directors or other governing bodies of business enterprises unrelated to the
Bank and not in a business competitive with a business of the Bank.
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2. EMPLOYMENT AND DUTIES.
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Xx. Xxxxx shall be employed as a Vice Chair of the Bank and as Group Head
of its Commercial Financial Services Group ("CFSG"). Xx. Xxxxx also shall hold
the position of Vice Chair of UNBC. Xx. Xxxxx hereby accepts such employment.
Xx. Xxxxx shall devote his time, ability, attention, energy, knowledge and skill
to performing all reasonable duties as a Vice Chair and CFSG Group Head as
assigned to him by the Bank's Chief Executive Officer ("CEO"), the Bank's Board
of Directors (the "Board") and/or UNBC's Board of Directors (the "UNBC Board")
(when referred to collectively with the Bank's Board, the "Boards"). In
addition, Xx. Xxxxx shall continue to serve as a policy making officer of the
Bank and of UNBC.
3. NOMINATION TO UNBC BOARD OF DIRECTORS.
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Xx. Xxxxx'x name shall be included on the slate of directors for election
to the UNBC Board by the UNBC shareholders at the next regular election
following the effective date of this Agreement. If so elected, Xx. Xxxxx'x
service as a director of the UNBC Board (a "Director") shall be subject to the
UNBC Board's normal policies, including its retirement policy. Neither the Bank
nor UNBC shall be obligated to include Xx. Xxxxx'x name on any subsequent slate
of directors for election to the UNBC Board by the UNBC shareholders, nor shall
a decision not to place Xx. Xxxxx'x name on any such subsequent slate be deemed
a breach of any duty or obligation owed by the Bank and/or UNBC to Xx. Xxxxx
under this Agreement. Xx. Xxxxx acknowledges that his nomination for Director is
not a guarantee of election or reelection by UNBC's shareholders, nor is Xx.
Xxxxx'x election as a Director a guarantee that he will remain a Director for
any specified period of time.
4. TERM OF AGREEMENT; RENEWAL.
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The term of this Agreement shall commence on the effective date hereof and
end thirty-six (36) months after such date (the "Term"); provided, however, that
commencing on the date one year after the date hereof and on each annual
anniversary of such date (a "Renewal Date"), unless terminated earlier in
accordance with the provisions of paragraph 7 hereof, the Term shall be
automatically extended so as to terminate thirty-six (36) months from such
Renewal Date, unless, at least sixty (60) days prior to any Renewal Date, the
Bank has provided written notice to Xx. Xxxxx that the Term shall not be so
extended.
5. COMPENSATION AND ADDITIONAL BENEFITS.
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a. COMPENSATION. Xx. Xxxxx'x compensation shall be subject to annual
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review and adjustment based on competitive market analysis, the
recommendation of the Bank's CEO, and approval by the Executive
Compensation and Benefits Committee of the Bank's Board of Directors (the
"Board") or any other committee constituted by the Board for this purpose
(as applicable, the "Committee"). It is the parties' intention that Xx.
Xxxxx'x overall compensation be competitive with overall compensation for
comparable executive positions at banks of similar size and focus, with
year-to-year
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variations based on Xx. Xxxxx'x performance and the performance of the Bank. The
elements of Xx. Xxxxx'x compensation shall be:
(i) BASE SALARY. In consideration for Xx. Xxxxx'x services to the
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Bank, Xx. Xxxxx shall receive a base salary of not less than Four
Hundred Seventy Five Thousand Dollars ($475,000.00) per annum to be
paid in equal installments as per the Bank's salary administration
program. Such amount, as may be increased from time to time, shall be
referred to herein as "Base Salary."
(ii) SENIOR MANAGEMENT BONUS PLAN. Xx. Xxxxx shall continue to
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participate in the Bank's Senior Management Bonus Plan or any
successor thereto (the "Bonus Plan"), subject to the eligibility
requirements and other terms and conditions of the Bonus Plan and the
determinations of the administrator of such plan pursuant to the terms
thereof. Xx. Xxxxx'x target bonus under the Bonus Plan for 2004 shall
be ninety percent (90%) of Base Salary.
(iii) LONG TERM INCENTIVES. Xx. Xxxxx shall be eligible for long
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term incentive awards available to policy making officers. Awards may
consist of one or more types of long term incentives, including the
grant of stock options and restricted stock under the UnionBanCal
Corporation Management Stock Plan or any successor thereto (the "Stock
Plan") and the award of performance shares under the UnionBanCal
Corporation Performance Share Plan or any successor thereto (the
"Performance Share Plan"), with a total target economic value for 2004
of approximately one hundred seventy five percent (175%) of Xx.
Xxxxx'x Base Salary. Any awards of long term incentives shall be
subject to the terms and conditions of the Stock Plan and the
Performance Share Plan, as applicable, and the determinations of the
respective administrators of such plans pursuant to the terms thereof.
b. ADDITIONAL BENEFITS. During his employment under this Agreement:
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(i) RETIREMENT AND 401(K) PLAN. Xx. Xxxxx shall be entitled to
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participate in the Bank retirement and 401(k) plans that are now or
hereafter will be in effect, subject to the eligibility requirements
and other terms and conditions of such plans and the determinations of
the administrator of such plans pursuant to the terms thereof.
(ii) SUPPLEMENTAL RETIREMENT BENEFITS. During his employment
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under this Agreement, Xx. Xxxxx shall be a participant under the
Bank's Supplemental Executive Retirement Plan for Policy Making
Officers (the "PMO SERP") and under the Union Bank Executive
Supplemental Benefit Plan (the latter of which is a plan of a
predecessor of the Bank), subject to the terms and conditions of such
plans and the determinations of the administrators of such plans
pursuant to the terms thereof.
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(iii) INSURANCE AND WELFARE PLANS. Xx. Xxxxx and his eligible
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dependents shall be eligible to receive such other benefits or rights
as may be provided under any employee benefit plan provided by the
Bank that is now or hereafter will be in effect (including
participation in life, medical, disability, dental and vision
insurance plans), subject to eligibility requirements and other terms
and conditions of such plans and the determinations of the
administrators of such plans pursuant to the terms thereof.
(iv) DEFERRED COMPENSATION. Xx. Xxxxx shall be entitled at his
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discretion to defer payment of any or all cash compensation due to him
under this Agreement under the Bank's Senior Management Deferred
Compensation Plan or any successor thereto, subject to the eligibility
requirements and other terms and conditions of such plan and the
determinations of the administrator of such plan pursuant to the terms
thereof.
(v) PRIOR AWARDS OF RESTRICTED STOCK. Awards of restricted stock
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previously granted to Xx. Xxxxx under the 2000 Employment Agreement
shall continue to vest on the schedule and be subject to the other
provisions set forth in subparagraph 4(c) of the 2000 Employment
Agreement (which shall be deemed to be incorporated herein as if set
out in full herein), but in all other respects, shall continue to be
subject to the terms and conditions of the Stock Plan and the
determinations of the administrator of such plan. For purposes of this
subparagraph 5(v), references in subparagraph 4(c) of the 2000
Agreement to "subparagraphs 7(a), 7(b), 7(d) or 7(f)" shall be deemed
to be references to subparagraphs 7(a), 7(b), 7(d) and 7(f),
respectively, of this Agreement.
(vi) BENEFITS. Generally, Xx. Xxxxx shall be eligible for and
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participate in all of the Bank's employee benefit, incentive, equity
and perquisite plans and programs, including without limitation, the
Bank's Separation Pay Plan, (and any successors or additions thereto),
on a basis at least as favorable as that of similarly situated
executives and/or policy making officers, as the case may be, subject
to the eligibility requirements and other terms and conditions of such
plans and programs and the determinations of the administrators of
such plans and programs pursuant to the terms thereof.
6. OUTSIDE ACTIVITIES AND NON-COMPETITION.
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During the term of this Agreement, and subject to paragraph 1, Xx. Xxxxx
shall devote his time, ability, attention, energy, knowledge and skill to the
business of the Bank, including as a Director. During the term of this
Agreement, Xx. Xxxxx shall not, directly or indirectly, either as an employee,
employer, consultant, agent, principal, partner, shareholder, corporate officer,
director, or in any other capacity, engage or assist any third party in engaging
in any business competitive with the business of the Bank, UNBC, or their
subsidiaries, without the written approval of the CEO. Investments in publicly
traded corporations through brokerage accounts or in mutual funds, investments
through private equity funds in which Xx. Xxxxx has less than a one
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percent (1%) interest, or depositor/borrower relationships with other financial
institutions are not intended to be covered by this paragraph. Following his
employment with the Bank, Xx. Xxxxx shall not engage in unfair competition with
the Bank or aid others in any unfair competition with the Bank. For purposes of
this Agreement, "unfair competition" shall mean a violation by Xx. Xxxxx of any
continuing obligation he may have pursuant to the Bank's Business Standards of
Conduct regarding the use or disclosure of the Bank's confidential information,
but shall not include use or disclosure by Xx. Xxxxx of the Bank's confidential
information where such information has become generally known in the financial
services industry other than through an improper act of Xx. Xxxxx or Xx. Xxxxx'x
legally required reporting or disclosure of such information.
7. TERMINATION OF EMPLOYMENT.
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This Agreement shall terminate as follows:
a. BY DEATH. This Agreement shall be terminated upon the death of Mr.
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Xxxxx. The Bank's total liability to Xx. Xxxxx in the event of termination
of Xx. Xxxxx'x employment under this subparagraph shall be limited to the
payment (on his behalf) of Xx. Xxxxx'x salary, benefits and other
compensation as set forth in paragraph 5 of this Agreement through the
effective date of termination and any other benefits or rights under any
benefit plan or program pursuant to the terms thereof.
b. BY DISABILITY. If Xx. Xxxxx fails to perform his duties hereunder
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by reason of any physical or mental incapacity, for a period of more than
one hundred eighty (180) days in the aggregate in any three hundred sixty
five (365) day period, then, to the extent permitted by law, the Bank may
terminate Xx. Xxxxx'x employment on written notice given while he remains
so disabled. The Bank's total liability to Xx. Xxxxx in the event of
termination of Xx. Xxxxx'x employment under this subparagraph shall be
limited to the payment of Xx. Xxxxx'x salary, benefits and other
compensation as set forth in paragraph 5 of this Agreement through the
effective date of termination and any other benefits or rights under any
benefit plan or program pursuant to the terms thereof. Nothing in this
paragraph 7 is intended to preclude Xx. Xxxxx from exercising any rights he
may have under the Bank's Short Term Disability Plan or Long Term
Disability Plan or any respective successors thereto, in accordance with
the eligibility requirements and other terms and conditions of such plans.
c. FOR CAUSE. The Bank reserves the right to terminate this Agreement
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immediately, at any time, if: Xx. Xxxxx (i) fails to attempt in good faith
to perform the duties which he is required to perform under the terms of
this Agreement after written notice and a reasonable opportunity to cure
such failure; (ii) commits any material act of dishonesty, fraud,
misrepresentation or willful misconduct with regard to the Bank or in the
performance of his duties hereunder which would violate the Bank's Business
Standards of Conduct; (iii) is guilty of gross carelessness with regard to
a material matter in the performance of his duties; (iv) fails to obey the
written lawful direction of the Bank's CEO, the Board and/or the UNBC
Board; or (v) is convicted of, or pleads nolo
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contendere to, a felony or any other crime involving fraud, dishonesty or a
breach of trust. Nothing in the preceding sentence is intended to include
legally required or other reporting or disclosure by Xx. Xxxxx of financial
information regarding the Bank in the ordinary course of his employment as
a Vice Chair, CFSG Group Head, or any other title or position he may hold
during the term of this Agreement. The Bank's total liability to Xx. Xxxxx
in the event of termination of Xx. Xxxxx'x employment under this
subparagraph shall be limited to the payment of Xx. Xxxxx'x salary,
benefits and other compensation as set forth in paragraph 5 of this
Agreement through the effective date of termination and any other benefits
or rights under any benefit plan or program pursuant to the terms thereof.
d. WITHOUT CAUSE. The Bank reserves the right to terminate this
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Agreement without cause, for any reason and at any time, by written notice
to Xx. Xxxxx from the CEO. In the event of termination under this
subparagraph 7(d), and subject to the conditions set forth herein, Xx.
Xxxxx shall be entitled to receive the payments described in (i) and (ii)
below without any obligation to mitigate and without offset for any other
amounts earned.
(i) If Xx. Xxxxx has not yet attained age 65 at the time of his
termination of employment, and provided Xx. Xxxxx executes the
"General and Special Release" (attached hereto as Exhibit A), then in
consideration for such Release, the Bank will provide Xx. Xxxxx with:
(A) The greater of (I) two years of separation pay payable
as salary continuation on a payroll by payroll basis, in an
amount equal to Xx. Xxxxx'x Base Salary at the time of his
termination, plus a prorated bonus amount each payroll period
equal to the average of Xx. Xxxxx'x annual bonus (excluding any
amount that represents an award of long term incentives by the
Bank) for the three (3) most recent bonus determination years
divided by the number of payroll periods in the year, or (II) the
salary continuation amount payable under the Bank's then existing
separation pay plan; and
(B) Benefits (other than salary continuation) available
and/or payable to similarly situated executives and policy making
officers under the Bank's separation pay plan in effect at the
time of his termination of employment. A true and correct copy of
the Bank's Separation Pay Plan as in effect on the date of this
Agreement is attached hereto as Exhibit B. Grants of equity
awarded to Xx. Xxxxx prior to his termination of employment under
this Agreement shall be treated as provided for in the applicable
grant agreement, Board resolution, UNBC Board resolution, or Bank
policy.
(ii) The Bank will provide Xx. Xxxxx with salary, benefits and
other compensation as set forth in paragraph 5 of this Agreement
through the effective
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date of termination and any other benefits or rights under any benefit
plan or program pursuant to the terms thereof.
A termination of this Agreement on account of Xx. Xxxxx'x disability
shall be governed by subparagraph 7(b) and not this subparagraph 7(d). In
addition, in the event Xx. Xxxxx dies while receiving salary continuation
benefits under subparagraph 7(d)(i)(A) above, then Xx. Xxxxx shall have the
remaining salary continuation, if any, paid to his Designated Beneficiary
under Exhibit C attached hereto.
e. BY XX. XXXXX WITHOUT CAUSE. Xx. Xxxxx reserves the right to
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terminate this Agreement for any reason (other than the reason set forth in
subparagraph 7(f)) upon reasonable written notice to the Bank. The Bank's
total liability to Xx. Xxxxx in the event of termination of Xx. Xxxxx'x
employment under this subparagraph shall be limited to the payment of Xx.
Xxxxx'x salary, benefits and other compensation as set forth in paragraph 5
of this Agreement through the effective date of termination and any other
benefits or rights under any benefit plan or program pursuant to the terms
thereof.
f. BY XX. XXXXX FOR CAUSE. Subject to the further conditions next
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described, Xx. Xxxxx may terminate this Agreement by giving sixty (60)
days' written notice to the Bank of the occurrence of any of the following:
(i) a reduction in title as set forth in paragraph 2 hereof (including Xx.
Xxxxx no longer serving in the capacity or under the title of Vice Chair,
Group Head of CFSG, or policy making officer), (ii) a material reduction of
his duties, authority or responsibility, (iii) a material reduction in his
overall compensation package other than as a result of the competitive
market analysis and/or year-to-year variations based on performance
described in subparagraph 5(a) hereof, (iv) a reduction in Base Salary, (v)
a failure by the Bank to nominate Xx. Xxxxx for election as a Director
pursuant to paragraph 3 hereof, (vi) a failure by the Bank to provide
employee benefits (including equity, incentives and perquisites) to Xx.
Xxxxx on a basis at least as favorable as that which it provides to other
similarly situated executives and/or policy making officers, as the case
may be, as set forth in subparagraph 5(vi) hereof, or (vii) any other
material breach of the provisions hereof by the Bank. In order to elect to
terminate this Agreement pursuant to this subparagraph 7(f), Xx. Xxxxx must
submit the written notice to the Bank within sixty (60) days of his gaining
knowledge of the applicable act or event. Xx. Xxxxx shall not be entitled
to elect to terminate this Agreement pursuant to this subparagraph 7(f) if
prior to Xx. Xxxxx'x termination date the Bank corrects the deficiency upon
which Xx. Xxxxx'x election to terminate is based. In the event that Xx.
Xxxxx is entitled to and elects to terminate this Agreement pursuant to
this subparagraph 7(f), (i) he shall be entitled to receive salary,
benefits and other compensation as set forth in paragraph 5 of this
Agreement through the effective date of termination and any other benefits
or rights under any benefit plan or program pursuant to the terms thereof,
and (ii) if he has not yet attained age 65 at the time of his termination
of employment and further executes the "General and Special Release"
(attached hereto as Exhibit A), then in consideration for such Release, the
Bank will provide Xx. Xxxxx with the salary continuation and benefits set
forth in subparagraphs 7(d)(i)(A) and (B) without any obligation to
mitigate or offset for other amounts earned. In the event Xx. Xxxxx dies
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while receiving salary continuation benefits described in subparagraph
7(d)(i)(A) above, then Xx. Xxxxx shall have the remaining salary
continuation and benefits, if any, paid to his Designated Beneficiary under
Exhibit C attached hereto.
g. RESIGNATION OF POSITIONS. Upon termination of employment for any
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reason whatsoever, Xx. Xxxxx shall be deemed to have resigned from all
offices and positions with the Boards, the Bank, UNBC, and their
subsidiaries. Xx. Xxxxx agrees that, in connection with his termination
under this Agreement, he will tender such written resignations as required
by the Bank.
8. PROHIBITION OF ASSIGNMENT.
This Agreement is personal to Xx. Xxxxx and he may not assign or delegate
any of his rights or obligations hereunder without first obtaining the written
consent of the Bank.
9. EFFECT ON PRIOR AGREEMENTS.
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As of the effective date of this Agreement, except as otherwise
specifically provided herein, the 2000 Employment Agreement shall no longer have
any force or effect, and the parties hereby waive any and all rights to which
either party is now or may in the future be entitled to under the 2000
Employment Agreement and any other prior written, verbal or other agreement or
understanding between Xx. Xxxxx and the Bank or any parent, affiliate,
subsidiary, predecessor, assign, officer, director, employee, shareholder or
agent of the Bank, respectively), regarding the subject matter of this
Agreement. Notwithstanding the foregoing, nothing in this paragraph 9 is
intended to constitute a waiver by Xx. Xxxxx of (i) any and all salary, bonus,
benefits, reimbursement and all other compensation and other amounts to which
Xx. Xxxxx was entitled through the effective date of this Agreement; or (ii) any
rights which Xx. Xxxxx may have pursuant to the Change-of-Control Agreement.
10. UNBC OR BANK SUCCESSOR.
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For all purposes under this Agreement, the term "UNBC" shall include any
successor to UNBC's business and/or assets, by purchase, merger, consolidation,
reorganization, liquidation or otherwise. For all purposes under this Agreement,
the term "Bank" shall include any successor to the Bank's business and/or
assets, by purchase, merger, consolidation, reorganization, liquidation or
otherwise, and, in such an event, for all purposes under this Agreement, the
term "UNBC" also shall mean the U.S. parent company to such successor (and, if
there is no such U.S. parent company, the successor itself). This Agreement
shall inure to the benefit of and be binding upon any such successor to UNBC and
the Bank to which Xx. Xxxxx'x employment is transferred. Xx. Xxxxx'x employment
shall not be transferred except to a successor, as such term is defined in this
paragraph 10, and then only upon such successor assuming the obligation of the
Bank hereunder in a writing promptly delivered to Xx. Xxxxx.
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11. ARBITRATION.
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Any controversy between the Bank, UNBC or their parent companies,
subsidiaries and affiliates and Xx. Xxxxx arising out of Xx. Xxxxx'x employment
or the termination thereof, involving the construction or application of any of
the terms, provisions or conditions of this Agreement, or otherwise arising out
of or relating to this Agreement and any controversy arising out of or relating
to Exhibit A to this Agreement (the "General and Special Release") or involving
a claim of race, sex, religious, age, disability, medical condition (in and as
defined under California law), marital status, veteran status, sexual
orientation or national origin discrimination under Title VII of the Civil
Rights Act of 1964, as amended, the Americans with Disabilities Act of 1990, as
amended, the Age Discrimination in Employment Act, as amended, the Family and
Medical Leave Act, the California Fair Employment and Housing Act, or any other
federal, state or local laws, shall be settled by arbitration in accordance with
the employment dispute resolution or other applicable rules of the American
Arbitration Association in effect on the effective date of this Agreement, and
judgment on the award rendered by the arbitrator(s) may be entered by any court
having jurisdiction thereof. Reasonable limited discovery will be permitted in
the form of the right of each party to take the deposition of one individual and
any expert witness designated by the other party. Each party shall also have the
right to make requests for discovery of relevant documents to the other party.
Additional discovery may be had only where the arbitrator so orders, upon a
showing of substantial need. The Bank and Xx. Xxxxx each shall bear their own
costs and legal fees associated with the arbitration, except that the arbitrator
shall have the right in his discretion to award reasonable legal fees to the
prevailing party in the arbitration. Notwithstanding the foregoing, the Bank
shall bear the cost of the arbitrator (including the costs of establishing a
facility for and otherwise administering the arbitration). The location of the
arbitration shall be in Los Angeles, California, and the arbitration shall be
conducted so as to result in the rendering of the arbitrator's decision within
ninety (90) days after the original demand for arbitration. The arbitrator shall
be required to issue written findings and conclusions underlying the basis of
such decision.
This paragraph 11 of this Agreement and the obligations provided for herein
shall survive the termination of this Agreement and remain in full force and
effect following the termination of Xx. Xxxxx'x employment with the Bank.
12. INDEMNIFICATION.
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The Bank and UNBC agree to defend, indemnify and hold harmless Xx. Xxxxx
from all claims, causes of action or complaints made or filed by any party for
acts performed in the course and scope of his employment and attributable to Xx.
Xxxxx'x employment under this Agreement (including as a Director) to the fullest
extent permitted by applicable law. The Bank further agrees that Xx. Xxxxx'x
rights under any applicable policy of directors and officers' liability
insurance for acts performed in the course and scope of his employment and
attributable to Xx. Xxxxx'x employment under this Agreement (including as a
Director) shall not cease upon the termination of this Agreement, and the Bank
and UNBC shall continue coverage of Xx. Xxxxx therefore thereafter under
successor policies. This paragraph 12 and the obligations provided for herein
shall survive the termination of this Agreement.
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13. MODIFICATION.
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Any modification of this Agreement will be effective only if it is in
writing and signed by the parties to be bound thereby.
14. ENTIRE AGREEMENT.
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This Agreement constitutes the entire agreement between the Bank and Xx.
Xxxxx pertaining to the subject matter hereof, and supersedes all prior or
contemporaneous written or verbal agreements and understandings with Xx. Xxxxx
in connection with the subject matter hereof.
15. GOVERNING LAW.
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Except as otherwise provided herein, this Agreement and the rights and
obligations hereunder shall be governed by the laws of the State of Delaware.
The parties to this Agreement specifically consent to the jurisdiction of the
courts of California over any action arising out of or related to this
Agreement.
16. SEVERABILITY.
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If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
shall, nevertheless, continue in full force and effect without being impaired or
invalidated in any way.
17. WAIVER.
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The parties hereto shall not be deemed to have waived any of their
respective rights under this Agreement unless the waiver is in writing and
signed by such waiving party. No delay in exercising any right shall be a waiver
nor shall a waiver on one occasion operate as a waiver of such right on a future
occasion.
18. NOTICES.
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All notices provided for herein shall be in writing and shall be deemed to
have been given when delivered personally, when deposited in the United States
mail, registered or certified, postage prepaid, or when delivered to a messenger
service, addressed as follows:
To the Bank: Xxxx X. Xxxxxx
Executive Vice President
Union Bank of California, N.A.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
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or to the then current Director of Resources of the Bank at the time the notice
is given.
To Xx. Xxxxx: Xxxxxx X. Xxxxx
Vice Chair
Union Bank of California, N.A.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
or to Xx. Xxxxx at such home address as may be reflected in the Bank's records
at the time the notice is given.
19. EXECUTIVE COMPENSATION AND BENEFITS COMMITTEE.
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If at the time of a determination under this Agreement no Committee is in
existence, references to the Committee under this Agreement shall be deemed to
be references to the Board.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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20. WITHHOLDING TAXES.
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The Bank shall withhold and deduct all applicable federal and local taxes,
as required by applicable laws, from any payments made under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized officers or agents.
Dated: 2/25/04 UNION BANK OF CALIFORNIA, N.A.
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By /S/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
Executive Vice President
AGREED AS APPLICABLE:
Dated: 2/25/04 UNIONBANCAL CORPORATION
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By /S/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
Executive Vice President
Dated: 2/25/04 /S/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
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EXHIBIT A
GENERAL AND SPECIAL RELEASE
1. In return for the benefits provided for in subparagraphs 7(d)(i) or
7(f)(ii) of the Executive Agreement entered into as of April 1, 2004 (the
"Agreement"), the adequacy of which as consideration is hereby acknowledged,
Xxxxxx X. Xxxxx (hereinafter "Xx. Xxxxx") hereby fully releases and forever
discharges Union Bank of California, N.A., its parent, affiliated, and
subsidiary corporations, its and their successors and assigns, and the past and
present officers, directors, employees, shareholders, agents and employee
benefit plans of each (hereinafter collectively the "Bank") from any and all
actions, causes of action, claims, demands, damages, and liabilities of
whatsoever kind or character, in law or in equity, now known or unknown,
suspected or unsuspected, past or present, that he has ever had or currently may
have against them or any of them including, but not limited to, claims of race,
sex, religious, age, disability, medical condition (in and as defined under
California law), marital status, veteran status, sexual orientation or national
origin discrimination under Title VII of the Civil Rights Act of 1964, as
amended, the Americans with Disabilities Act of 1990, as amended, the Age
Discrimination in Employment Act, as amended, the Family and Medical Leave Act,
the California Fair Employment and Housing Act, and any other federal, state or
local laws, arising out of or in any way related to Xx. Xxxxx'x employment with
the Bank or the termination of that employment. Except as otherwise may be
provided by law, Xx. Xxxxx further agrees not to institute in any state or
federal court any action or claim of any kind against the Bank. Execution of
this document by Xx. Xxxxx operates as a complete bar and defense against any
and all current claims of any type that may be made by Xx. Xxxxx against the
Bank, provided, however, that nothing in this release is intended to affect Xx.
Xxxxx'x right to seek a remedy in arbitration to resolve any controversy arising
out of the construction or application of the terms, provisions or conditions of
the Agreement. Notwithstanding the foregoing, nothing in this Release is
intended to constitute a waiver by Xx. Xxxxx of any right or claim to
indemnification or to directors' and officers' liability insurance coverage or
any right or claim under any applicable policy of directors' and officers'
liability insurance he may have now or in the future have or any rights as a
shareholder of the Bank.
2. Xx. Xxxxx and the Bank understand and expressly agree that the release
granted in Paragraph 1 extends to all claims of every nature and kind, known or
unknown, suspected or unsuspected, past or present, which Xx. Xxxxx may have
against the Bank arising from or related to his employment with the Bank or the
termination of that employment and that any and all rights granted to Xx. Xxxxx
under Section 1542 of the California Civil Code or any analogous state law,
federal law, or regulation are hereby expressly waived. Section 1542 of the
California Civil Code provides that:
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.
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3. Xx. Xxxxx agrees that this General and Special Release, the terms and
conditions of the Agreement, and any and all actions in accordance therewith,
are strictly confidential. Therefore, the terms and conditions of the Agreement
shall not be disclosed, discussed, or revealed by Xx. Xxxxx to any other
persons, entities or organization, whether within or outside the Bank, except by
Xx. Xxxxx to his immediate family, attorneys or personal financial advisors, or
as may be required by applicable law, or to enforce the terms hereof. The
foregoing limitation shall not apply to the extent that the Agreement or this
General and Special Release has become part of the public record.
4. Xx. Xxxxx acknowledges and agrees that in the course of employment with
the Bank he has acquired confidential information and trade secrets concerning
the Bank, business strategies, corporate structure, regulatory issues,
securities, litigation, claims, threatened claims, affiliate transactions, Board
of Directors, Board Committee business, government relations, Office of the
Comptroller of the Currency relations and other highly private and confidential
data (collectively, the "Confidential Information"). Xx. Xxxxx agrees that he
shall not use or disclose any Confidential Information acquired during the
course of his employment with the Bank to any third party without the express
written consent of the Chief Executive Officer of the Bank; provided, however,
that the foregoing shall not apply to (i) information that becomes generally
known in the financial services industry other than as a result of improper
disclosure by Xx. Xxxxx and (ii) Xx. Xxxxx'x compliance with a subpoena, court
order or other proper legal process or regulatory requirements or inquiry. In
the case of (ii), to the extent not otherwise prohibited by law, Xx. Xxxxx
agrees to provide the Bank with prompt notice of the receipt thereof so that the
Bank can have the opportunity to object to such disclosure or to obtain a
protective order.
5. Xx. Xxxxx acknowledges and agrees that in the event that he materially
breaches the promises set forth in this General and Special Release and/or any
of the applicable provisions of the Agreement, and does not cure such breach
after written notice thereof, Xx. Xxxxx shall have no right to the severance
payments and benefits provided for under the Agreement.
6. Xx. Xxxxx has read this instrument, has had the opportunity of
consulting with an attorney regarding it, and signs it voluntarily and with the
intention of being bound by it. Xx. Xxxxx understands that he is waiving legal
rights by signing this Release.
7. Xx. Xxxxx acknowledges that he has been given at least twenty-one (21)
days within which to consider this Release. Xx. Xxxxx understands that he may
revoke this Release upon written notice to the Bank within seven (7) days after
execution of it and that this Release will not become effective or unenforceable
until the eighth (8th) day after its execution.
Dated: _______________ ____________________________________
Xxxxxx X. Xxxxx
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