Exhibit 10.29
January 29, 2001
Xxxxx X. Xxxxx
Executive Vice President
Chief Financial Officer
Dear Xxxx:
This letter, upon your signature, will constitute a Separation
Agreement ("Agreement") between you and Pacific Century Financial Corporation
and Bank of Hawaii (collectively, the "Bank") regarding the terms of your
resignation and separation from employment with the Bank and its subsidiaries
and affiliates.
1. Your date of termination ("Termination Date") be no later than December 31,
2001, but may be effective on such earlier date as you may elect. Effective
February 3, 2001, however, you will be relieved of all your current duties
and responsibilities. From February 3, 2001 until all of your accrued
vacation time is used, you will be on vacation. Thereafter until your
Termination Date, you will make yourself available to the Bank for
consultation on an as needed basis to assure a smooth transition. As part
of the transition you will also resign any positions you hold as a
director, officer or other management official of any Bank affiliate or
subsidiary, or as trustee or fiduciary of any Bank benefit plan or trust.
2. You will be paid your earned salary and auto allowance through your
Termination Date, and the Bank's portion of your club dues will continue to
be paid through April 30, 2001. You will continue to participate in all
Bank employee benefit plans through your Termination Date. You will receive
payment under the Bank's 0000 xxx-year incentive plan in the amount of
$160,000.00. You acknowledge and agree that no compensation other than that
specified herein is owed to you.
3. You have received or will receive by separate cover information regarding
your rights to health insurance continuation after your Termination Date.
To the extent that you have such rights, nothing in this agreement will
impair those rights.
4. On or before February 19, 2001 you will return to the Bank any information
you have about the Bank's practices, procedures or trade secrets, including
but not limited to, customer data, lists and accounts; Bank strategies,
growth plans, business plans, and marketing strategies; and any Bank
property such as Bank Visa card and keys.
5. Because your employment is being terminated by way of resignation, you are
not entitled to benefits under our Employees' Severance Plan. By acceptance
of this Agreement, you are waiving and releasing your benefits under that
Plan. While the Bank makes no representation to you concerning your
possible entitlement to unemployment insurance benefits, under the
circumstances, it will truthfully report, should unemployment compensation
authorities ask that the termination of your employment was voluntary.
6. Although you are not otherwise entitled to it, in further consideration of
your acceptance of the terms of this Agreement, the Bank will pay you
$375,000.00, less customary payroll deductions [(this portion hand written
in on 1/30/01, and initialed by both parties), payable on January 15, 2002
regardless of the termination date]. In addition, if you elect a
Termination Date before December 31, 2001, the Bank will pay an amount
equal to your salary and any accrued but unused vacation, from that date
through December 31, 2001. These amounts will be paid within two weeks of
your Termination Date, but no earlier than the effective date of this
Agreement as defined in paragraph 13 below (the "Effective Date"). In
addition to the foregoing payments, the Bank will pay for outplacement
services with its selected outplacement services provider for a period of
six months. Finally, with regard to all Qualified and Nonqualified Stock
Options ("Options") currently held by you which are not vested, the
Compensation Committee will provide for the full vesting of such Options
upon the completion of six months following their date of grant. Also, with
regard to vested Options held by you as of your Termination Date, the
Compensation Committee will extend the period within which these Options
are exercisable to three years following your Termination Date in the case
of 1994 Plan Options, and one year following your Termination Date in the
case of 1988 Plan Options (or, if earlier, in either case to the end of the
original terms of the Options). The extension of the exercise period for
your Qualified Stock Options may result in conversion of your Qualified
Stock Options into Nonqualified Stock Options with a consequent loss of
certain tax benefits. Therefore, Qualified Stock Options will not be
subject to these extensions unless you consent on or before your
Termination Date.
7. You waive, release and forego any and all claims, whether or not now known,
suspected or claimed, that you ever had, now have, or may later claim to
have had as of or prior to the Effective Date of this Agreement against the
Bank and any of its predecessors, subsidiaries, related entities, officers,
directors, shareholders, agents, attorneys, employees, successors or
assigns arising from or related to your employment with the Bank and/or the
termination of your employment with the Bank.
These claims include, but are not limited to, claims arising under federal,
state and local statutory or common law, including, but not limited to, the
Age Discrimination in Employment Act, Title VII of the Civil Rights Act of
1964, Hawaii civil rights and anti-discrimination statutes, wage and hour
laws, the law of contract and tort (such as claims for breach of contract,
infliction of emotional distress, defamation, invasion of privacy, wrongful
termination, etc.), and any claims for attorneys' fees and/or costs.
8. The Bank and you agree that any inquiries regarding verification of your
employment will be handled through the Bank of Hawaii, Human Resources
Division. You agree that you will instruct anyone of whom you are aware who
is making such inquiries to contact the Human Resources Division. As is the
Bank's practice, the Human Resources Division will only release information
confirming your dates of employment and position title.
9. The Bank and you agree that each will not make any disparaging, negative or
derogatory statements regarding the other.
10. Unless compelled by court order or subpoena or otherwise required by law,
you will not disclose to others or use any information regarding the
following:
a. Any information regarding the Bank's practices, procedures or trade
secrets, including but not limited to, customer data, lists and
accounts; and Bank strategies, growth plans, business plans, and
marketing strategies.
b. The terms of this Agreement, the benefit being paid under it, and the
fact of its payment are confidential, except that you may disclose
this information to (i) your attorney, accountant or other
professional advisor to whom you must make the disclosure in order for
them to render professional services to you, and (ii) your spouse. You
will instruct any such people to whom you make a disclosure, however,
to maintain the confidentiality of this information just as you must.
11. In the event that you breach any of your obligations under this Agreement
or otherwise imposed by law, the Bank will be entitled to recover the
benefit paid under this Agreement and to obtain all other relief provided
by law or equity. In addition, you acknowledge and agree that breach of
Paragraphs 4, 9, and 10 will result in irreparable harm to the Bank for
which it will have no adequate remedy at law and for which the Bank may
seek immediate injunctive relief.
12. You agree that you will not seek reinstatement to the Bank nor apply for
employment with the Bank or its subsidiaries or affiliates.
13. The following is required by the Older Workers Benefit Protection Act:
This Agreement includes a waiver of any claims you may have under the
Age Discrimination in Employment Act through the Effective Date of this
Agreement. You have up to 21 days from the date of this letter, or February
19, 2001, to accept the terms of this Agreement, although you may accept it
at any time within those 21 days. There are advantages and disadvantages
for you in entering into this Agreement. Prompt receipt of the payment
provided for in paragraph 6 and an amicable resolution to the situation may
be considered advantages. Release of potential claims may be considered a
disadvantage. To properly weigh the advantages and disadvantages you are
advised to consult an attorney about this Agreement prior to signing the
Agreement. If you want to accept the Agreement prior to the expiration of
the 21 days, you will need to indicate your waiver of the 21-day
consideration period by signing in the space indicated below.
To accept this Agreement, please date and sign this letter and return
it to me. (An extra copy for your file is enclosed)
Once you do so, you will still have an additional seven days in which to
revoke your acceptance. To revoke, you must send me a written statement of
revocation by registered mail, return receipt requested. If you do not
revoke, the eighth day after the date of your acceptance will be the
"Effective Date" of this Agreement. The Agreement will not be effective and
enforceable until the revocation period has expired.
14. This Agreement represents the complete agreement of the parties, and is
intended to bind both the parties, and all persons claiming by or through
the parties. It supersedes any and all prior agreements, and may only be
amended in writing signed by both you and Bank. It shall be governed by and
interpreted under Hawaii law and may be pleaded as a full and complete
defense to, and as the basis for an injunction against, any future
proceeding. You understand and agree that this Agreement is not intended to
be and is not an admission of any fact or wrongdoing or liability by any of
the parties.
Xxxx, I am pleased that we were able to part ways on these amicable
terms. The Bank and I wish you every success in your future endeavors.
Sincerely,
/S/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx
Executive Vice President & Director,
Human Resources Division
By signing this letter, I acknowledge that I have had the opportunity to
review this Agreement carefully with an attorney of my choice; that I have read
and understand the terms of the Agreement; and that I voluntarily agree to them.
Dated: January 30, 2001
/S/ Xxxxx X. Xxxxx
-----------------------------------------------------
Xxxxx X. Xxxxx
Pursuant to 29 C.F.R. ss. 1625.22(e)(6), I hereby knowingly and voluntarily
waive the twenty-one (21) day pre-execution consideration period set forth in
Older Workers Benefit Protection Act (29 U.S.C. (S) 626(f)(1)(F)(i)).
Dated: January 30, 2001
/S/ Xxxxx X. Xxxxx
-----------------------------------------------------
Xxxxx X. Xxxxx
AMENDMENT TO PACIFIC CENTURY FINANCIAL CORPORATION
STOCK OPTIONS FOR XXXXX X. XXXXX
This Amendment, effective as of November 29, 2001, is made by and
between Pacific Century Financial Corporation, a Hawaii corporation, with its
principal office at 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxx ("PCFC"),
and Xxxxx X. Xxxxx, residing at 0000 Xxxxxxxx Xxx Xxxxxxxx, XX 00000
("Optionee"), as an amendment to certain outstanding stock option agreements
between such parties.
WHEREAS, PCFC and Optionee have entered into stock option agreements
for the grant to the Optionee of certain qualified incentive stock options
("ISOs") and nonqualified stock options ("NQSOs") (together, "Options") pursuant
to the Pacific Century Financial Corporation Stock Option Plan of 1994 ("1994
Plan") and the Pacific Century Financial Corporation Stock Option Plan of 1988
("1988 Plan") (together, "Plans");
WHEREAS, in a manner consistent with the terms of the Plans and
pursuant to the terms of that certain Separation Agreement between PCFC and the
Optionee dated January 29, 2001 "Separation Agreement"), PCFC and the Optionee
desire to modify the vesting and exercise periods applicable to the outstanding
Options held by the Optionee;
NOW, THEREFORE, the parties hereto agree to amend the Options as
follows:
(a) Effective as of the date of the Separation Agreement, any
nonvested outstanding Options then held by the Optionee shall be fully vested
upon completion of six months following their date of grant.
(b) Effective as of his "Termination Date" (within the meaning of the
Separation Agreement), any vested outstanding Options held by the Optionee as of
his Termination Date which have been granted under the 1994 Plan shall be
exercisable during the period of three years following his Termination Date (or,
if later, until the end of the applicable exercise period provided for under the
terms of the Option), and any vested outstanding Options held by the Optionee as
of his Termination Date which have been granted under the 1988 Plan shall be
exercisable during the period of one year following his Termination Date (or, if
later, until the end of the applicable exercise period under the terms of the
Option). However, the exercise period of an Option shall not be extended under
this Amendment beyond the original term of the Option.
(c) The extended exercise periods described in paragraph (b) above
shall apply only to the ISOs as described in the attached Exhibit A, in which
case such ISOs shall be deemed to be NQSOs.
(d) The above modifications shall not apply to any other awards under
the Plans or any other plan or agreement, including any tandem or freestanding
stock appreciation rights that may have been awarded under the Plans.
(e) This Amendment shall constitute an amendment to the underlying
option agreements for the affected Options.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment on the date first above written.
PACIFIC CENTURY FINANCIAL
CORPORATION
By /S/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Its
"PCFC"
/S/ Xxxxx X. Xxxxx
-------------------------------------------------
"Optionee"
AMENDMENT TO PACIFIC CENTURY FINANCIAL CORPORATION
STOCK OPTIONS FOR XXXXX X. XXXXX
EXHIBIT A -- ISO's SUBJECT TO EXTENDED EXERCISE PERIODS
The following ISOs shall be subject to the extended exercise periods
as provided for under the Amendment:
Grant Date Expiration Date Plan ISOs
---------- --------------- ---- ----
02/18/1994 02/18/2004 1994 6,600
12/04/1995 12/31/2004 1994 3,186
12/20/1996 12/31/2004 1994 4,732
12/12/1997 12/31/2004 1994 3,836 *
09/08/1998 12/31/2004 1994 5,925
12/10/1999 12/31/2004 1994 5,517
11/03/2000 12/31/2004 1994 5,000
* Does not apply with respect to tandem SAR
