EXHIBIT 10.29
KEY EMPLOYEE RETENTION INCENTIVE AGREEMENT
This Agreement is made this 11th day of May, 2000, between FIRST
PROFESSIONAL BANK, N.A. ("Bank") and XXX XXXXXXXXXXX ("Employee").
RECITALS
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WHEREAS, Bank desires to retain its long-term key employees by
rewarding long term employment with the Bank; and
WHEREAS, Employee is a key employee of Bank.
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereby agree as follows:
1. PURPOSE. The purpose of this Agreement is to reward Employee for
Employee's ability, loyalty and exceptional service, and to provide incentive
compensation as an incentive for Employee to remain an employee of the Bank.
2. INCENTIVE COMPENSATION. As an incentive for Employee's continued
employment, Bank shall provide the following incentive compensation to Employee
upon the terms and conditions set forth herein:
(a) COMPENSATION. In the event of: (i) a resource reallocation
or work reduction, (ii) a merger where the Bank is not the surviving entity;
(iii) a transfer of all or substantially all of the assets of the Bank; or (iv)
any other corporate reorganization where there is a change of ownership in the
Bank of at least fifty-one percent (51%), except as may result from a transfer
of shares to another corporation in exchange for at least eighty percent (80%)
control of that corporation (any of the events described in clauses (i) through
(iv) being referred to herein as a "Transaction"), as a result of which at any
time within two (2) years from the effective date of the Transaction (A)
Employee's employment is terminated by Bank without cause, (B) Employee
terminates her employment because Employee's annual base compensation is reduced
by more than 25% over the previous year, or (C) Employee 10043 03/14/2000 3:24
PM
terminates her employment because, without Employee's consent, the location of
Employee's place of employment with Bank is changed to a place more than 75
miles away from Employee's place of employment at the time of the Transaction
(any of the events described in clauses (A) through (C) being referred to herein
as a "Triggering Event"), Bank shall continue to pay to Employee the monthly
base salary that Employee is earning at the time of such Triggering Event (less
withholding and other applicable taxes required by law and excluding auto
allowance and any unearned bonus ), for a period of three (3) months after the
termination of her employment (the "Additional Compensation"). Employee shall
make a good faith effort to obtain alternate employment after the termination of
Employee's employment with Bank, and shall promptly notify Bank of the
obtainment of any employment and the monthly base salary to be paid by the new
employer. The Additional Compensation shall be reduced by the amount of any
compensation (including salary, bonus, consulting fees or unemployment benefits)
that Employee receives during the period any Additional Compensation is to be
paid by Bank hereunder. This provision for Additional Compensation supersedes
and takes the place of any general Bank policy concerning severance that is in
effect at the time of any Triggering Event. Further, notwithstanding any Bank
policy regarding tuition reimbursement to the contrary, if Employee's employment
is terminated due to any of the Triggering Events set forth herein, Employee
shall not be required to reimburse the Bank for any tuition payments made during
the twelve months prior to such Triggering Event.
As a condition precedent to the payment of the Additional
Compensation, Employee shall execute a Settlement Agreement and Release,
acceptable in form to the Bank, releasing Bank from any and all claims relating
to Employee's employment with Bank up through the date of the Settlement
Agreement and Release, in substantially the form attached hereto as Exhibit A.
Employee acknowledges that it may be necessary to amend or modify the form of
Release at the time of execution to maintain its effectiveness in accordance
with changes in federal or state laws or regulations or case law. Employee
hereby acknowledges that Employee must sign the Release, as it may be amended or
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modified as of the date of Employee's execution of the Release, as a condition
precedent to receiving any Additional Compensation.
(b) STOCK OPTIONS. Bank has caused its parent company,
Professional Bancorp, Inc. ("PBI"), to grant to Employee options to purchase
3,500 shares of common stock of PBI (the "Options") as consideration for this
Agreement. The Options shall be exercisable as follows: (i) options to purchase
1,100 shares shall be exercisable upon Employee's execution of this Agreement,
(ii) options to purchase 1,200 shares shall be exercisable on the first
anniversary date of this Agreement if Employee is still employed by the Bank on
such date, and (iii) the options to purchase the remaining 1,200 shares shall be
exercisable on the second anniversary date of this Agreement if Employee is
still employed by the Bank on such date.
3. EMPLOYMENT AT WILL. Employee's employment with Bank remains at-will.
This Agreement does not create a contract of employment between Bank and
Employee. This Agreement does not limit the right of the Bank to discharge
Employee for any reason, or for no reason. Employee may also terminate her
employment with Bank at any for any reason or for no reason at all.
4. ENTIRE AGREEMENT. This instrument contains the entire agreement of
the parties with respect to the subject matter hereof. No change, modification,
amendment, or alteration to this Agreement shall be valid unless in writing and
signed by the parties hereto.
5. GOVERNING LAW. This Agreement shall be governed and construed and
the legal relationship and obligations of the parties determined in accordance
with the laws of the State of California.
6. SEVERABILITY. The provisions in this Agreement are severable. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision hereof.
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7. ASSIGNABILITY. Employee acknowledges that this Agreement and the
benefits hereunder are personal to Bank and Employee and are not assignable or
transferable by Employee. This Agreement shall be binding upon all and inure to
the benefit of Employee's and Bank's heirs, successors and assigns.
8. ARBITRATION. The parties hereto agree that any disputes arising out
of or related to this Agreement shall be settled by final and binding
arbitration in Santa Xxxxxx or Los Angeles, California in accordance with the
commercial arbitration rules of the American Arbitration Association.
FIRST PROFESSIONAL BANK, N.A.
By: ______________________________
Xxxx Xxxxxx, Chief Executive
Officer
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XXX XXXXXXXXXXX
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EXHIBIT A
RELEASE OF CLAIMS
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THIS AGREEMENT is made this _____ day of __________________, _____,
between XXX XXXXXXXXXXX ("Employee") and FIRST PROFESSIONAL BANK, N.A.
("Employer").
BACKGROUND
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A. Employer and Employee entered into a Key Employee Retention
Incentive Agreement dated ________________, 1999 (the "Incentive Agreement"),
pursuant to which Employee shall be paid Additional Compensation (as defined in
the Incentive Agreement) in consideration for executing this Release of Claims.
B. Employee desires to receive the Additional Compensation and
Employee and Employer want to settle any issues through the date of this
Agreement related to Employee's employment by Employer, including any present or
past claims by Employee against the Employer or Professional Bancorp, Inc., and
their respective directors, officers, employees, legal representatives and
agents (collectively, the "Employer Group").
NOW THEREFORE, Employer and Employee promise, agree and state as
follows:
1. Employee promises, agrees and states that:
a. Employee's employment with Employer ended on ____________,
________;
b. Employee has not filed and will not file or appeal, any
lawsuit, administrative charge, or other claim about his/her employment arising
on or before the date hereof, or any lawsuit, charge or claim, filed or
appealed, shall be dismissed or withdrawn by Employee permanently without right
to refile or renew that lawsuit, charge or claim;
c. Employee forever waives and releases Employer and the
Employer Group from any and all claims, including race, sex, national origin,
handicap, religious, benefit or age discrimination or retaliation under (1)
Title VII of the Civil Rights Act of 1964, (42 United States Code beginning at
Section 2000e); (2) the Employee Retirement Income Security Act or ERISA, (29
United States Code beginning at Section 1001); (3) the Reconstruction Era Civil
Rights Acts (42 United States Code beginning at Section 1981); (4) the Age
Discrimination in Employment Act "ADEA" (29 United States Code, Sections 621
through 634); (5) the Americans with Disabilities Act of 1990 "ADA" (42 United
States Code beginning at Section 12111); and (6) the Family and Medical Leave
Act of 1993 "FMLA" (29 United States Code beginning at Section 2601) arising out
of an act or omission occurring on or before the date hereof.
d. Employee further forever waives and releases the Employer
Group from any and all claims, liabilities, damages, penalties, obligations,
actions and causes of action (hereinafter "Claims"), whether past, present or
future, whether now known or unknown, and whether arising out of common law,
constitution, statute or regulation as long as the Claim arises out of an act or
omission occurring on or before the date of this Agreement, which includes but
is not limited to Claims arising out of or relating to Employee's employment or
Employee's termination, breach of contract, defamation, misrepresentation,
public policy, wrongful or constructive termination, infliction of emotional
distress, or the California Fair Employment and Housing Act, as amended,
California Government Code ss.12900, et seq., and the California Labor Code, or
other applicable discrimination laws or regulations.
e. Employee forever waives and gives up any right to payment
of attorneys' fees.
f. If Employee's employment with Employer has been terminated,
Employee forever waives and renounces any right to reinstatement of employment,
whether temporary or permanent, part-time or full-time, in any capacity with
Employer, and promises never to apply for or otherwise seek employment with
Employer.
g. As part of this general release, and not by way of
limitation, Employee expressly waives any right Employee may have under ss.1542
of the California Civil Code, which states:
"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."
h. Employee understands and agrees that Employee may later
discover facts in addition to or different from those which Employee now knows
or believes to be true with respect to the subject matters of this Agreement,
but that it is nevertheless Employee's intention by signing this Agreement to
fully, finally and forever release any and all claims, whether now known or
unknown, suspected or unsuspected, which now exist, may exist or previously have
existed as set forth herein.
2. Employee also promises and agrees not to make any negative or
disparaging remarks about Employer or to volunteer, start or encourage any
statement or action that could hurt the business or reputation of the Employer.
3. Employee agrees that any breach of the Employee's promises and
releases in Sections 1 and 2 of this Agreement and Release will entitle the
Employer to recover everything paid to Employee under this Agreement and the
Incentive Agreement plus damages, including attorney fees and all litigation
expenses, and equitable relief.
4. In consideration of this Agreement, Employer agrees that, unless
this Agreement is revoked by Employee under Section 13(c) below, Employee shall
receive the Additional Compensation on the terms set forth in the Incentive
Agreement.
5. Employer does not admit any violation of any federal or state
statute, the common law, or Employee's rights. To the contrary, the Employer
denies any violation and makes this Agreement only to settle finally all claims
and issues relating to Employee's employment and termination thereof, if
applicable.
6. Employee represents and acknowledges that in executing this
Agreement Employee does not rely and has not relied upon any promise,
representation or statement not in this Agreement and Release made by the
Employer or the Employer's attorneys about the subject matter, basis or effect
of this Agreement or otherwise.
7. The provisions of this Agreement and Release are severable; if any
part of it is found to be unenforceable, the remaining parts shall remain fully
valid and enforceable.
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8. Each party has adequate knowledge of the facts and law with respect
to the advisability of making the settlement provided for within, with respect
to the advisability of executing this agreement, and with respect to the meaning
of California Civil Code Section 1542. Each party has made such investigation of
the facts pertaining to this settlement and this Agreement, and all of the
matters pertaining thereto, as the party deems necessary. Each party has read
this Agreement and understands the contents thereof.
9. This Agreement shall be deemed to have been executed and delivered
within the State of California and the rights and obligations of the parties
hereunder shall be construed and enforced in accordance with, and governed by,
the laws of the State of California.
10. This Agreement is the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior and
contemporaneous oral and written agreements and discussions. This Agreement may
be amended only by an agreement in writing, signed by all parties hereto. In the
event of arbitration or litigation hereafter arising from or relating to this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees
and costs.
11. This Agreement is binding upon and shall inure to the benefit of
the parties hereto, and their respective successors.
12. This Agreement may be executed in counterparts, and when each party
has signed and delivered at least one such counterpart, each counterpart shall
be deemed an original, and, when taken together with the other signed
counterpart(s), shall constitute one Agreement which shall be binding upon and
effective as to all parties.
13. Employee is hereby advised:
a. to CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT;
b. that EMPLOYEE HAS TWENTY-ONE (21) DAYS WITHIN WHICH TO CONSIDER
AND SIGN THIS AGREEMENT; and
c. that EMPLOYEE MAY CANCEL THIS AGREEMENT WITHIN SEVEN
(7) DAYS AFTER SIGNING THIS AGREEMENT; and that this
Agreement is not effective or enforceable until this
seven (7) day period has expired.
14. EMPLOYEE, BY SIGNING THIS AGREEMENT, UNDERSTANDS AND INTENDS TO
WAIVE ALL CLAIMS AGAINST THE EMPLOYER GROUP, INCLUDING ALL CLAIMS FOR FEES.
EMPLOYEE ADMITS EMPLOYEE ENTERS INTO THIS AGREEMENT KNOWINGLY, VOLUNTARILY AND
AFTER HAVING CONSULTED WITH OR HAVING THE OPPORTUNITY TO CONSULT WITH AN
ATTORNEY FOR A COMPLETE REVIEW OF THIS DOCUMENT.
Employee and Employer have read this Settlement Agreement and Release,
and by signing below, indicate their knowing and voluntary agreement to its
terms.
XXX XXXXXXXXXXX FIRST PROFESSIONAL BANK, N.A.
__________________________________ By: _______________________________
Title: ____________________________
Date: _____________________________ Date: _____________________________
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