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Exhibit 10(e)
SEVERANCE AGREEMENT AND GENERAL RELEASE
1. SEVERANCE PAY AND BENEFITS:
Pursuant to the mutual agreement of Xxxxxx X. Xxxxxxxxx
("Employee") and First Commercial Bank and First Commercial Bancorp, Inc.
("Employer"), Employee, for himself, Employee's heirs, executors,
administrators, successors and assigns (hereinafter referred to as the
"Releasors"), hereby accepts the following offer of Employer to provide the
mutually agreed upon severance pay and benefits set forth herein in connection
with cessation of Employee's employment with Employer and termination of
Employee's employment agreement dated November 22, 1994 (the "1994 Employment
Agreement"), effective October 31, 1995:
(a) Employer and Employee hereby agree that Employee shall
cease his employment with Employer effective October
31, 1995 (the "Cessation Date"), at which time
Employee's 1994 Employment Agreement shall terminate
and all salary and benefits payable to Employee shall
cease except as otherwise provided herein.
(b) On the Cessation Date, Employee shall be paid for his
accrued and unused vacation time.
(c) Employer shall provide Employee with continuation of
his current monthly salary, which shall be paid less
applicable payroll withholding amounts in twice
monthly installments, for the period beginning on
Employee's Cessation Date and ending on December 31,
1995.
(d) During the period beginning on Employee's Cessation
Date and ending on June 30, 1996 or until Employee is
employed elsewhere, whichever occurs first, Employer
shall pay Employee's monthly premiums for continuation
coverage under Employer's medical plan pursuant to
COBRA, less an amount equal to the amount currently
paid by Employee monthly for coverage under Employer's
medical plan, so that Employee will pay the same for
coverage under Employer's medical plan during said
period as he currently pays.
(e) Employer shall assign and shall tender to Employee
upon the expiration of seven (7) days from the
Cessation Date all of Employer's right, title and
interest in the term life insurance policy provided to
Employee by Employer. Employer shall pay the premiums
on such policy through December 31, 1996. Employee
shall thereafter assume payment of the premiums on
such policy, and Employer shall not be responsible for
any premiums on said policy after payment of the 1996
premium.
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(f) Employer shall pay to employee on January 1, 1996 a
lump sum payment of $80,000, less applicable payroll
withholding amounts. This payment shall be allocated
as follows: $48,000 of the payment is intended by the
parties as compensation for Employee's potential
claims for personal injury, and $32,000 is severance
pay. Employer will not issue a 1099 or W-2 as to the
$48,000. Employee recognizes that he may be liable to
one or more governmental taxing authorities for tax
payments on the $48,000 paid pursuant to this
Severance Agreement and General Release ("Agreement").
Employee agrees that he will pay any and all taxes
which may be imposed upon Employee by any and all
governmental taxing authorities or other entities on
account of the $48,000 paid pursuant to this
Agreement, and that Employer is not liable for such
taxes. Employee shall indemnify and hold Employer
harmless from and for any and all liability for taxes
and other payments which may be imposed upon Employee
by governmental taxing authorities, including
interest, penalties, costs, and attorneys' fees, on
account of the $48,000 paid pursuant to this
Agreement.
2. FULL RELEASE:
In return for such severance payment and benefits, Releasors
hereby fully release and discharge Employer and their respective officers,
directors, employees, agents, insurers, underwriters, subsidiaries, parents,
affiliates, successors or assigns (all such persons, firms, corporations and
entities being deemed beneficiaries hereof and are referred to herein as the
"Releasees") from any and all actions, causes of action, claims, obligations,
costs, losses, liabilities, damages and demands of whatsoever character, whether
or not known, suspected or claimed ("Claims"), which the Releasors have, or
hereafter may have, against the Releasees, including but not limited to, Claims
arising out of or in any way related to Employee's employment, the terms of any
employment agreement or the cessation of Employee's employment.
This Agreement of Employee shall be binding on the executors,
heirs, administrators, successors and assigns of Employee, and shall inure to
the benefit of the respective executors, heirs, administrators, successors and
assigns of the Releasees.
(b) Releasees agree to release Employee from all Claims
which Releasees have, or hereafter may have, against the Releasors arising out
of or in any way related to Employee's employment, the terms of any employment
agreement or the cessation of Employee's employment; provided however, that
Releasees do not agree to release Releasors from any Claims or proceedings
whatsoever which may be brought or claimed by any regulatory authority or for
any actions discovered after the Cessation Date which are related
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to Employee's malfeasance, misfeasance, fraud, dishonest or illegal conduct or
gross negligence.
3. EXPRESS WAIVER OF ALL CLAIMS UNDER CALIFORNIA CIVIL CODE
SECTION 1542:
It is understood and agreed that this Agreement extends to all
of the above-described Claims and potential Claims, and that all rights under
California Civil Code Section 1542 are hereby expressly waived by the Releasors
with respect to all such Claims. Said Section 1542 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 executing the release, which if known by him must have
materially affected his settlement with the debtor.
4. WAIVER OF RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT
ACT:
Employee understands that this Agreement includes claims and
rights Employee might have under the Age Discrimination in Employment Act
("ADEA"). The waiver of Employee's rights under the ADEA does not extend to
claims or rights that might arise after the date this Agreement is executed. The
monies to be paid to Employee in this Agreement are in addition to any sums to
which he would be entitled without signing this Agreement. For a period of seven
(7) days following execution of this Agreement, Employee may revoke the terms of
this Agreement by a written document received by the Employer on or before the
end of the seven (7) day period. The Agreement will not be final until said
revocation period has expired. Employer will make the payment to Employee as
described above if this Agreement is not revoked by Employee.
Employee acknowledges that he has been given the twenty-one
(21) day period to decide whether to sign this Agreement and has been advised to
consult with an attorney of his own choosing to discuss whether or not to sign
this Agreement.
5. RELEASEES' EXPRESS DENIAL OF LIABILITY:
The payment by the Releasees of the amount and benefits
specified hereinabove shall not be deemed an admission that any liability of the
Releasees exists, and in making said payment Releasees do not admit, but
expressly deny, any liability.
6. CONFIDENTIALITY:
Except pursuant to a valid and effective subpoena, civil
investigative or discovery demand, interrogatories, request for information or
production of documents, order
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of a court of competent jurisdiction or governmental entity or similar process,
or as is necessary or appropriate to disclose to any regulatory authority having
jurisdiction over Employer, any current or prospective insurance carrier of
Employer or as otherwise required by law or regulation, Employee and Employer
agree that the terms and amount of this Agreement have been and shall be held
strictly confidential by him and it. Employee and Employer agree that in the
event he or it discloses any information contrary to the confidentiality
provisions of this Agreement, any such breach would be a material breach of this
Agreement for which Employer or Employee, as the case may be, shall be entitled
to pursue any and all legal and equitable remedies available to it or him.
7. COOPERATION:
Employee agrees to reasonably cooperate with Employer, for a
period of six months following Employee's Cessation Date, with regard to the
business of Employer that Employee participated in during the course of
Employee's employment with Employer, including, but not limited to, providing
Employer with information requested by Employer with regard to such business.
8. EMPLOYMENT AGREEMENT:
Employee agrees that all his rights under the 1994 Employment
Agreement with Employer are terminated as of the Cessation Date and acknowledges
that his obligations under paragraphs 8 and 10 remain in full force and effect
in accordance with the terms thereof.
9. SEVERABILITY:
In the event that any term in this Agreement shall for any
reason be held by a court of competent jurisdiction to be invalid, illegal,
void, or unenforceable, the same shall not affect any other term of this
Agreement, but this Agreement shall be construed as if such invalid, illegal,
void, or unenforceable term had never been contained herein.
10. INFORMED AND VOLUNTARY SIGNATURE:
No promise or inducement has been made other than those set out
in this Agreement, and this Agreement is executed by Employee without reliance
on any representation by Employer. Employee hereby acknowledges that Employee
has read and understands this Agreement and that Employee affixes Employee's
signature hereto voluntarily and without coercion.
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11. ENTIRE AGREEMENT:
Employer and Employee acknowledge that no representations,
inducements, promises or agreements, oral or otherwise, have been made by any
party or anyone acting on behalf of a party which are not embodied herein, and
that no other agreement, statement, representation, inducement or promise not
contained in this Agreement shall be valid or binding. Any modification, waiver
or amendment of this Agreement will be effective only if it is in writing and
signed by all parties to the Agreement.
12. ARBITRATION:
Any disagreement, dispute, controversy or claim arising out of
this Agreement shall be settled exclusively and finally by arbitration. Employer
and Employee hereby expressly waive their entitlement, if any, to have
controversies between them related to matters that are to be arbitrated
hereunder decided by a court or a jury.
(a) The arbitration shall be conducted in accordance with
the Commercial Rules of Arbitration of the American
Arbitration Association ("AAA"). The arbitral tribunal
shall consist of one (1) arbitrator that shall be
mutually agreed upon by the parties or, if the parties
are unable to agree, the arbitrator shall be chosen by
the regional administrator of the AAA.
(b) The arbitrator shall have full authority to decide any
matters in controversy or dispute between the parties
except that he or she shall not have authority to vary
the terms of this Agreement.
(c) The arbitration shall be conducted in Sacramento,
California, or in any other city in the United States
of America that the parties to the dispute designate
by mutual written consent, and Employee and Employer
hereby consent to jurisdiction of the Arbitration held
in said locale and any award herein made. The
arbitration award may be enforced by any court of
competent authority in the same manner as a judgment
ordered by a court of law and/or equity.
(d) Any decision or award of the arbitrator shall be final
and binding upon the parties to the arbitration
proceeding. The parties hereto agree that the arbitral
award may be enforced against the parties to the
arbitration proceeding or their assets wherever the
award may be entered in any court having jurisdiction
thereof.
(e) All arbitration proceedings herein shall be pursued
privately and neither Employer nor Employee shall
publicize the fact of, or the decision of
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any such arbitration except pursuant to a valid and
effective subpoena, civil investigative or discovery
demand, interrogatories, request for information or
production of documents, order of a court of competent
jurisdiction or governmental entity or similar
process, or as is necessary or appropriate to disclose
to any regulatory authority having jurisdiction over
Employer, any current or prospective insurance carrier
of Employer or as otherwise required by law or
regulation, or for the purpose of pursuing any rights
of review as set forth in Section 11 through 13 of the
United States Arbitration Act.
13. ATTORNEYS' FEES:
In the event that any party shall bring an action or
arbitration in connection with the performance, breach or interpretation of this
Agreement, then the prevailing party in such action or arbitration as determined
by the court or other body having jurisdiction shall be entitled to recover from
the losing party in such action or arbitration, as determined by the court or
such other body having jurisdiction, all reasonable costs and expenses of
litigation or arbitration, including reasonable attorneys' fees, court costs,
costs of investigation and other costs reasonably related to such proceeding, in
such amounts as may be determined in the discretion of the court or such other
body having jurisdiction.
I, XXXXXX X. XXXXXXXXX, UNDERSTAND THAT THIS IS A LEGAL
RELEASE; MY SIGNATURE IS VOLUNTARY.
IN WITNESS WHEREOF, the parties hereto have executed this
Severance Agreement and General Release on this 31st day of October, 1995.
By Employee _____________________________________
XXXXXX X. XXXXXXXXX
By Employer _____________________________________
XXXXXX XXXXX, XX.
Chairman of the Board of Directors
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