Exhibit 99.3
MUTUAL GENERAL RELEASE
This Mutual General Release ("Agreement") is made and entered into as
of this 5th day of January 2004 by and between Pacific Premier Bancorp, Inc., a
Delaware corporation ("PPBI") and Pacific Premier Bank ("Bank"), a federally
chartered savings bank, on the one hand, and Xxxxxxx X. Xxxx ("Director"), on
the other hand, with reference to the following facts:
A. Director served as a director of PPBI and the Bank as a designee
of New Life Holdings, LLC ("NLH"), pursuant to Section 9.6 of
that certain Note and Warrant Purchase Agreement dated November
20, 2001 (the "Note and Warrant Purchase Agreement") between PPBI
and NLH.
B. PPBI and NLH, by an Agreement and Mutual General Release of even
date herewith, have agreed to amend Section 9.6 of the Note and
Warrant Purchase Agreement, to, among other things, terminate the
right of NLH to designate directors to the Boards of PPBI and the
Bank, and PPBI and NLH desire that Director resign his
directorships on the Boards of PPBI and the Bank effective as of
the date hereof, and Director desires to resign his directorships
on the Boards of PPBI and the Bank effective as of the date
hereof.
C. The parties hereto wish to provide for a general release of
claims one may have against the other through the date of
execution of this Mutual General Release.
NOW, THEREFORE, the parties hereto agree as follows:
1. Mutual General Release.
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(a) Except as otherwise expressly provided herein, Director
hereby releases and forever discharges PPBI, the Bank, and
their officers, directors, agents, affiliates, successors
and assigns, from any and all claims, debts, losses,
covenants, agreements, contracts, liabilities, demands,
obligations, accounts, expenses, actions, causes of action
and suits, whether past, present or future, known or
unknown, at law or in equity, of whatever kind or nature
whatsoever (collectively, "Claims"), which Director now has,
owns, or holds, or has at any time heretofore had, owned or
held, or may at any time hereafter have, own or hold, by
reason of any fact, matter, cause or thing whatsoever from
the beginning of time to the date hereof, including, without
limitation, any and all matters arising from or in
connection with any agreement or alleged agreement between
Director and PPBI or the Bank, whether written or oral. The
foregoing release shall not extend to Director's rights to
enforce the provisions of this Agreement.
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(b) Except as otherwise expressly provided herein, PPBI and the
Bank hereby release and forever discharge Director and his
heirs, personal representatives, successors and assigns,
from any and all Claims, which PPBI now has, owns, or holds,
or has at any time heretofore had, owned or held, or may at
any time hereafter have, own or hold, by reason of any fact,
matter, cause or thing whatsoever from the beginning of time
to the date hereof, including, without limitation, any and
all matters arising from or in connection with any agreement
or alleged agreement between Director and PPBI or the Bank,
whether written or oral. The foregoing release shall not
extend to the rights of PPBI or the Bank to enforce the
provisions of this Agreement.
(c) Except as otherwise set forth herein, each party agrees that
this Agreement shall be effective as a full and final accord
and satisfaction and release of each and every matter
hereinabove referred to. In furtherance of this intention,
each party acknowledges that each party is familiar with
Section 1542 of the California Civil Code, which 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."
Except as otherwise set forth herein, each party waives and
relinquishes any rights and benefits which that party has or
may have under Section 1542 of the California Civil Code, to
the fullest extent permitted by law. In connection with such
waiver and relinquishment, each party acknowledges that any
party may hereafter discover claims or facts in addition to or
different from those which each party now knows or believes to
exist with respect to the subject matter of this Agreement,
but that it is each party's intention hereby fully, finally
and forever to settle and release any and all released
matters, disputes and differences, known or unknown, suspected
or unsuspected, which now exist, may exist, or heretofore have
existed, as set forth herein. In furtherance of such
intention, and except as otherwise expressly reserved herein,
the releases herein given shall be and remain in effect as
full and complete general releases, notwithstanding the
discovery or existence of any such additional or different
claims or facts.
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(d) Each party acknowledges and agrees that it has not assigned
to any third party any Claim or any interest in any Claim
that it has or at any time has had against any other party,
and that it has the full power and authority to enter into
this Agreement and the release of Claims included herein.
(e) Anything provided in this Section 1 to the contrary
notwithstanding, the Director shall not release PPBI and the
Bank from, and the Director shall continue to have, to the
same extent applicable to any continuing director of PPBI or
the Bank, all rights to indemnification from PPBI and/or the
Bank related to his services as a director of PPBI and/or
the Bank, as such indemnification rights are provided for
under applicable law, under any charter or by-law provision
of PPBI or the Bank or pursuant to any existing
indemnification agreement between the Director and PPBI
and/or the Bank.
2. Miscellaneous.
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(a) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and
supersedes and replaces all prior negotiations, proposed
agreements and agreements, written or oral. The parties
hereto further agree that any amendment or modification to
this Agreement must be in writing, signed by both parties.
(b) This Agreement shall be binding up and inure to the benefit
of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
(c) This Agreement has been entered into in the State of
California and its validity, construction, interpretation
and legal effect shall be governed by the laws of the State
of California applicable to contracts entered into and
performed entirely within the State of California.
(d) Should any litigation be commenced between the parties
hereto or their representatives or should any party
institute any proceeding in a bankruptcy or similar court
which has jurisdiction over any other party hereto or any or
all of his or its property or assets concerning any
provision of this Agreement or the rights and duties of any
person or entity in relation thereto, the party or parties
prevailing in such litigation shall be entitled, in addition
to such other relief as may be granted, to a reasonable sum
as and for his or its or their attorneys' fees and court
costs in such litigation which shall be determined by the
court in such proceeding or in a separate action brought for
that purposes.
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(e) This Agreement may be executed in several counterparts, and
all so executed shall constitute one Agreement, binding on
all parties hereto, notwithstanding that all of the parties
are not signatories to the original or the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have set forth
their hands as of the date first above written.
/s/XXXXXXX X. XXXX
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PACIFIC PREMIER BANCORP, INC.
By: /s/ XXXXXX X. XXXXXXX
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PACIFIC PREMIER BANK
By: /s/ XXXXXX X. XXXXXXX
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