Exhibit 10.19
-------------
FIRST AMENDMENT TO
------------------
SEPARATION AGREEMENT
--------------------
THIS FIRST AMENDMENT TO SEPARATION AGREEMENT (this "Amendment") is made
as of March 22, 2002, by and between First National Bank of Northern California,
a national banking association with its executive offices at 000 Xx Xxxxxx Xxxx,
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (the "Bank" or "Employer") and Xxxx X.
Xxxxx ("Employee").
Recitals:
---------
A. The Bank and Employee entered into a Separation Agreement dated
December 5, 2001 (the "Agreement"), pursuant to which the Bank agreed to make
certain payments to Employee for a period of eighteen (18) months commencing
from November 1, 2001.
B. Paragraph 6 of the Agreement provides, among other matters, that
neither the Bank nor Employee shall make any derogatory statement about the
other and that, under certain circumstances, following binding arbitration as
described in Paragraph 12 of the Agreement, the Bank may be relieved of any
further obligation to make such payments.
C. The Bank and Employee wish to revise the provisions of Paragraph
12 of the Agreement in order to clarify certain of the remedies available to the
Bank in the event of a disagreement or dispute involving the interpretation or
application of Paragraph 6 of the Agreement.
NOW THEREFORE, the parties hereto agree as follows:
1. Definitions. All capitalized terms used in this Amendment, unless
otherwise defined, shall have the meanings attributed to such terms in the
Agreement.
2. Restatement of Paragraph 12. Paragraph 12 of the Agreement is
hereby amended, revised and restated in its entirety and shall be worded as
follows:
"12. Arbitration. In the event either party believes that the
other has violated any material provision of this Agreement, or in the
event any other disagreement or dispute arises over the meaning or
application of this Agreement, Employer and Employee agree that such
controversy shall be fully and finally decided by binding arbitration
before a single neutral arbitrator to take place in San Mateo County,
California, on an accelerated basis, without right to decision by a
jury and without right of appeal. The party making a claim shall
describe that claim in writing with reasonable particularity in the
form of a demand for arbitration and request for specific relief.
Employer agrees to advance all costs of the arbitration and arbitrator.
If any claim is made by Employer with respect to Employee's compliance
with Paragraph 6 of this Agreement, then Employer shall be entitled, at
its sole option, to suspend all further payments to Employee under
sub-paragraph 1(b) of this Agreement, pending completion of the
arbitration. In the event Employer is deemed by the arbitrator to be
the non-prevailing party in the arbitration, Employer shall also
reimburse Employee's reasonable attorneys' fees in the amount
determined by the arbitrator. In the event Employee is deemed by the
arbitrator to be the non-prevailing party, Employee shall reimburse
one-half (1/2) of the amounts advanced by Employer for the arbitrator
and the arbitration. In the event Employee is deemed by the arbitrator
to be the non-prevailing party, Employee shall also reimburse
Employer's reasonable attorneys' fees in the amount determined by the
arbitrator."
3. Effective Date. This Amendment shall be effective as of the date
first above written, subject to the condition that the Bank and Employee, and
legal counsel to Employee, shall have affixed their signatures to this Amendment
on or before March 31, 2002. Upon execution of this Amendment (not later than
March 31, 2002) by the Bank, Employee and legal counsel to Employee, all
payments heretofore required to have been made by the Bank to Employee pursuant
to sub-paragraph 1(b) of the Agreement, currently being held in a suspense
account at the Bank pending the execution of this Amendment, shall promptly be
released from said suspense account and delivered by the Bank to Employee. If
the Bank and Employee, and legal counsel to Employee, have not signed this
Amendment on or before March 31, 2002, this Amendment shall be void and without
force or effect as of such date.
4. Effect of Amendment. Except as amended as set forth in Section 2
above, and subject to Section 3 above, the Agreement shall be unchanged and
continue in effect.
5. Miscellaneous.
-------------
5.1 Governing Law. This Amendment shall be construed under and
governed by the laws of the State of California. This Amendment shall
be deemed to have been entered into and performed in South San
Francisco, California. All questions of validity, interpretation or
performance of any of the terms of this Amendment or any rights or
obligations of Employee or the Bank shall be governed by California
law.
5.2 Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
5.3 Headings. The headings and captions used in this Amendment
are used only for convenience and are not to be considered in
construing or interpreting this Amendment.
5.4 Entire Agreement. This Amendment constitutes the entire
agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings duties or obligations
between the parties with respect to the subject matter hereof.
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
EMPLOYER: EMPLOYEE:
FIRST NATIONAL BANK
OF NORTHERN CALIFORNIA
By /s/ XXXXXX X. XXXXXX /s/ XXXX X. XXXXX
---------------------------------- ------------------------------------
Xxxxxx X. XxXxxx Xxxx X. Xxxxx
President and Chief Operating
Officer
Address for notices: Address for notices:
000 Xx Xxxxxx Xxxx 0000 Xxxxxxx Xxxxxx
Xxxxx Xxx Xxxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Approved as to form by the
undersigned, as legal counsel to
Xxxx X. Xxxxx:
/s/ XXXXXX X. STRETCH
------------------------------------
Xxxxxx X. Stretch
Attorney at Law
000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
3
