EXHIBIT 10.p.
GENERAL RELEASE AND SETTLEMENT AGREEMENT
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("AGREEMENT")
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For good and valuable consideration, receipt of which is hereby
acknowledged, and in order to resolve and settle finally, fully and completely
all matters or disputes that now or may exist between them, the parties agree as
follows:
1. PARTIES. The parties to this Agreement are Xxxxx X. Xxxxxxx, his
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heirs, representatives, successors and assigns (hereinafter referred to
collectively as "Xx. Xxxxxxx") and Bank of America National Trust and Savings
Association, BankAmerica Corporation, and/or any of its or their current,
former, or future, subsidiaries or affiliates (hereinafter referred to
collectively as "Bank").
2. VOLUNTARY RESIGNATION. Xx. Xxxxxxx hereby voluntarily tenders and
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Bank hereby accepts the voluntary resignation of his employment effective
December 1, 1995 from all offices, officer positions, and other positions he
holds within Bank except he shall be an employee (not an officer) of BankAmerica
Corporation ("BAC") through February 15, 1996. Xx. Xxxxxxx hereby voluntarily
tenders and Bank accepts the voluntary resignation of his employment from BAC
effective February 15, 1996.
3. TIME TO SIGN AGREEMENT. Xx. Xxxxxxx acknowledges and agrees he, or
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his counsel on his behalf, received the Agreement on or before November 9, 1995.
Xx. Xxxxxxx also acknowledges and agrees he had at least twenty-one (21)
calendar days from the date he received this Agreement to decide whether to sign
it. Xx. Xxxxxxx understands that for seven (7) calendar days after he signs
this Agreement he has the right to revoke it, and this Agreement shall not
become effective and enforceable until after the expiration of this seven day
period. The Agreement may not be revoked after the seven day period. Xx.
Xxxxxxx understands that he will not be entitled to receive or retain any of the
consideration provided by this Agreement, except under Paragraph 4, unless he
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signs and returns the fully executed Agreement and unless he signs and returns
Attachment A confirming that he does not revoke the Agreement, and provided that
Attachment A is signed no fewer than eight (8) calendar days after Xx. Xxxxxxx
signs this Agreement. Xx. Xxxxxxx also understands and agrees that as an
additional condition to receiving or retaining the consideration provided for by
this Agreement, Xx. Xxxxxxx must execute and return to Bank the Confirmation of
General Release and Settlement Agreement, attached as Attachment B, which may
not be signed any earlier than February 16, 1996.
4. PAID NOTICE PERIOD. As consideration for the promises contained in
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this Agreement, and without any other obligation to do so, Bank agrees that
beginning December 1, 1995, and continuing through February 15, 1996, Xx.
Xxxxxxx shall be relieved of the regular, day-to-day responsibilities and duties
as an employee of BAC including being
relieved of all decision-making power or authority and shall not have use of an
office, but Xx. Xxxxxxx shall assist the Bank in the transition to a new Chief
Financial Officer during this period. During this period, Xx. Xxxxxxx shall
continue to receive the base salary ($58,333.33 per month, less legal deductions
for applicable taxes and other withholdings) and be eligible for the medical,
dental, vision, life, and accidental death and dismemberment insurance benefits
he was receiving from Bank as of the date he first received this Agreement, but
he shall not accrue, be eligible to accrue, or utilize any sickness leave and/or
long-term disability benefits. During this period, he shall also remain subject
to the xxxxxxx xxxxxxx rules of the Securities and Exchange Act of 1934, as well
as any Bank policies, practices and procedures required by applicable law or as
required or directed by any regulatory authority.
5. PAYMENTS TO BE MADE. In consideration of the promises of Xx. Xxxxxxx
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as set forth herein, and without any other obligation to do so, the parties
agree that, on January 2, 1996, Bank will pay Xx. Xxxxxxx the xxxxx sum of Four
Million Nine Hundred Ninety-Four Thousand Seven Hundred Ninety-One and 67/100
Dollars ($4,994, 791.67), less legal deductions for applicable taxes and other
withholdings.
6. FURTHER CONSIDERATION - BENEFITS. As further consideration, and
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without any other obligation to do so, Bank will pay Xx. Xxxxxxx within ten (10)
business days of February 15, 1996, the gross sum of Twenty-Five Thousand
Dollars ($25,000.00), less legal deductions for applicable taxes and other
withholdings, to defray expenses for premiums that may be incurred by Xx.
Xxxxxxx with respect to medical, dental, vision, life, long term disability and
accidental death and dismemberment insurance.
7. BONUS ELIGIBILITY. As further consideration, and without any other
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obligation to do so, the parties agree that Xx. Xxxxxxx will be eligible to
receive a bonus for his 1995 performance (in lieu of payment under the Senior
Management Incentive Program) in the amount of One Million Five Hundred Thousand
Dollars ($1,500,000.00), less legal deductions for applicable taxes and other
withholdings. This bonus will be payable on January 2, 1996. Except as
specified in this Agreement, as of the date he executes this Agreement, Xx.
Xxxxxxx agrees that he is not now nor will he in the future be entitled to any
incentive or bonus payment(s) from Bank based on his employment through February
15, 1996.
8. FURTHER CONSIDERATION - OUTPLACEMENT. As further consideration, and
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without any other obligation to do so, Bank agrees to pay for Xx. Xxxxxxx to be
provided with executive outplacement consulting services by a firm of Bank's
choice, provided that, to be eligible for these services, Xx. Xxxxxxx must begin
using such services within 6 months of February 15, 1996. Xx. Xxxxxxx
acknowledges and agrees that Bank will expend no other sums in support of his
efforts to obtain employment and that Bank makes no representation or guarantee
that employment for him will be found as a result of its payment for the
outplacement services.
4120669.14 2
9. STOCK OPTIONS. As further consideration, and without any other
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obligation to do so, the parties agree that, with respect to stock options
previously issued to Xx. Xxxxxxx by Bank, Bank has recommended and the Executive
Personnel and Compensation Committee of the BankAmerica Corporation Board of
Directors has approved and agreed, subject to the provisions of Paragraph 3,
that (1) all options and stock appreciation rights (including the DEC account
credits associated therewith) previously granted to Xx. Xxxxxxx and outstanding
as of February 15, 1996, shall become 100% vested and immediately exercisable as
of February 16, 1996; and (2) that Xx. Xxxxxxx shall have three (3) years from
February 16, 1996, or the expiration of the original option or stock
appreciation rights period, whichever is less, to exercise such options or stock
appreciation rights. Except as specified in this Paragraph and in Paragraph 10,
as of the date he executes this Agreement, Xx. Xxxxxxx agrees that he is not now
nor will he in the future be entitled to any further grants of stock options,
restricted stock, credits to DEC accounts, or other stock based incentive
award(s) based on his employment through February 15, 1996 or on any other
basis, and that the Plan documents and Option Agreements shall govern.
10. PERFORMANCE SHARES. As further consideration, and without any other
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obligation to do so, the parties agree that, with respect to Performance Share
Units (stock and cash components) previously granted to Xx. Xxxxxxx, Bank has
recommended and the Executive Personnel and Compensation Committee of the
BankAmerica Corporation Board of Directors has approved and agreed, subject to
the provisions of Paragraph 3, that such Units be retained by Xx. Xxxxxxx
notwithstanding the separation of his employment on February 15, 1996, as if he
had remained employed by the Bank, subject to the fulfilling of the stock price
or shareholder return targets with respect to such Units.
11. SUPPLEMENTAL RETIREMENT PROGRAM. As further consideration, and
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without any other obligation to do so, the parties agree that Xx. Xxxxxxx shall
make an election under the Supplemental Retirement Program before February 15,
1996, as to whether he wishes to receive an immediate lump sum distribution or
elect, subject to the consent of the BankAmerica Corporation Employee Benefits
Administrative Committee, a different form of distribution.
12. FINANCIAL PLANNING. As further consideration, and without any other
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obligation to do so, Bank agrees that, for 1996, Xx. Xxxxxxx shall continue to
be provided with standard financial counselling services at Bank's expense to be
provided by the Ayco Company, including estate planning advice during 1996 up to
a maximum cost of $3,000 for estate planning. The parties understand and agree
that these services include tax preparation assistance by the Ayco Company in
1997 with respect to Xx. Xxxxxxx'x 1996 tax returns. Except as provided by this
Paragraph, Xx. Xxxxxxx shall not be eligible for any financial counselling
services by Ayco Company or any other company after December 31, 1996.
13. RELEASE OF CLAIMS. In exchange for the promises contained in this
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Agreement, Xx. Xxxxxxx hereby waives, releases and forever discharges, and
agrees to the
4120669.14 3
extent permitted by law that he will not in any manner institute, prosecute or
pursue, any and all complaints, claims, charges, claims for relief, demands,
suits, actions or causes of action, whether in law or in equity, which he
asserts or could assert, at common law or under any statute, rule, regulation,
order or law, whether federal, state, or local, or on any grounds whatsoever,
including without limitation, any age discrimination claims under the federal
Age Discrimination in Employment Act, and any claims under the California Fair
Employment and Housing Act, the California Labor Code, Title VII of the Civil
Rights Act of 1964, the Equal Pay Act, the Fair Labor Standards Act, the
Americans with Disabilities Act, the Family and Medical Leave Act, the
Rehabilitation Act of 1973, the Employee Retirement Income Security Act of 1974,
the Racketeer Influenced and Corrupt Organizations Act, the Financial Reform
Recovery and Enforcement Act of 1989, and/or Section 1981 of Title 42 of the
United States Code, against Bank and/or any of its or their current or former,
owners, officials, directors, officers, shareholders, affiliates, agents,
employee benefit plans, representatives, servants, employees, attorneys,
subsidiaries, parents, divisions, branches, units, successors, predecessors, and
assigns (collectively referred to as "Released Parties") with respect to any
event, matter, claim, damage or injury arising out of his employment
relationship with Bank, and/or the termination of such employment relationship,
and/or with respect to any other claim, matter, or event arising prior to
execution of this Agreement by Xx. Xxxxxxx. This Agreement includes, but is not
limited to, (i) release of any claims arising from or related to any statements
(written or oral) made or distributed or published by any or all of the Released
Parties, prior to signing of this Agreement by Xx. Xxxxxxx, including any
statements by Xx. Xxxxxxx himself, and (ii) release of any claims for any type
of wages, commissions, bonus, separation or severance benefits, stock, or any
other form of compensation. This Agreement does not release or waive rights or
claims based on events that may arise after the date the Agreement is executed
by Xx. Xxxxxxx. In addition, this Agreement does not release or waive any
rights or claims of Xx. Xxxxxxx (1) for indemnification as a director, officer
or agent of the Bank under applicable law, applicable by-laws, or applicable
charter provisions, (2) under this Agreement itself, (3) for health benefits or
life insurance benefits based on claims already submitted or which are covered
claims and are properly submitted in the future, or (4) for any vested rights
under pension or retirement plans.
14. CIVIL CODE (S)1542 WAIVER. As a further consideration and inducement
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for this Agreement, to the extent permitted by law, Xx. Xxxxxxx hereby waives
and releases any and all rights under Section 1542 of the California Civil Code
or any analogous state, local, or federal law, statute, rule, order or
regulation, he has or may have with respect to the Released Parties. California
Civil Code Section 1542 reads 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."
4120669.14 4
Xx. Xxxxxxx hereby expressly agrees that this Agreement shall extend and apply
to all unknown, unsuspected and unanticipated injuries and damages as well as
those that are now disclosed. The rights and claims released or waived under
Paragraphs 13 and 14 shall be collectively referred to as "Released Claims".
15. BANK'S RELEASE OF CLAIMS. In exchange for the promises contained in
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this Agreement, Bank hereby waives, releases and forever discharges, and agrees
to the extent permitted by law that it will not in any manner institute,
prosecute or pursue, any and all complaints, claims, charges, claims for relief,
demands, suits, actions or causes of action, whether in law or in equity, which
it asserts or could assert, at common law or under any statute, rule,
regulation, order or law, whether federal, state, or local, or on any grounds
whatsoever, arising from or attributable to Xx. Xxxxxxx'x employment
relationship with Bank, or based on any claim, matter, or event occurring prior
to the execution of this Agreement by Bank; provided, however, that the waivers
and releases of this Paragraph shall not extend to any criminal, malicious,
dishonest, or fraudulent acts of Xx. Xxxxxxx in violation of any Federal or
state laws or regulations, or in violation of Bank policies or guidelines, or
arising out of a conflict of interest, bad faith actions, violations of public
policy, or claims which are not waivable by law. Further, this release shall
not extend to any banking or customer relationship Xx. Xxxxxxx may have with
Bank, including, but not limited to, consumer or residential loans, personal
loans, equity loans, lines of credit, checking, investment, savings, or trust
accounts, business loans, credit cards, credit arrangements or any other
financial agreements or obligations, including, but not limited to, any matters
on which Xx. Xxxxxxx is a guarantor or co-signer, and Xx. Xxxxxxx represents to
the best of his knowledge after reasonable inquiry that he is current with
respect to all such obligations.
16. NO VACATION. Xx. Xxxxxxx acknowledges and agrees that he has no
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accrued and unused vacation days, in lieu or personal choice days as of the date
he executes this Agreement and shall not earn or accrue any vacation, in lieu or
personal choice days between the date he executes this Agreement and February
15, 1996.
17. DEFERRED COMPENSATION AMOUNTS. Xx. Xxxxxxx understands and agrees
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that any and all deferred compensation amounts he has under any deferred
compensation plan(s), if any, will be paid to him pursuant to the terms of such
plan(s) following the effective date of the resignation of his employment on
February 15, 1996.
18. CONFIDENTIAL INFORMATION.
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(a) Xx. Xxxxxxx agrees and acknowledges that the positions held by him
within Bank gave him significant access to confidential information of
substantial importance to the business of the Bank. Therefore, to the fullest
extent permitted by applicable law, Xx. Xxxxxxx agrees that any and all
information ("Confidential Information") obtained by or disclosed to him at any
time during his employment with Bank, and which is treated as
4120669.14 5
confidential by the Bank and which is not generally known to the public, is
strictly confidential and/or proprietary to Bank, shall be treated as trade
secrets of Bank, and shall not be disclosed, discussed, or revealed to any
persons, entities, or organizations, inside or outside of Bank, without prior
written approval to do so from Xxxxxxxx Xxxxx (or her successor or delegee).
Confidential Information shall include, but not be limited to, customer lists,
information concerning Bank's customers to the extent disclosure or use thereof
would violate applicable banking and privacy laws or regulations or reveal
confidential competitive information, strategies, tactics, methods of operation,
processes, practices, policies, programs, marketing information, market research
data, financial information, procedures, and/or personnel information. Further,
to the fullest extent permitted by applicable law, Xx. Xxxxxxx agrees he will
not (a) use any Confidential Information to solicit present or potential
business or customers of the Bank or use any Confidential Information to
otherwise compete with the Bank, or (b) use any Confidential Information to
assist any other individual, company or entity to do so. A breach of this
Paragraph 18, including this subparagraph 18(a) or subparagraph 18(b) below, is
a material breach. The parties to this Agreement agree that, should Xx. Xxxxxxx
violate the provisions of this Paragraph, Bank shall be relieved of any
obligation it may have to provide any consideration to Xx. Xxxxxxx which has not
yet been provided under this Agreement, except Xx. Xxxxxxx shall continue to
receive the consideration provided for under Paragraphs 9, 10, and 11. In
addition to any remedy for breach of this Paragraph which is provided by this
Paragraph, Bank retains all other legal and equitable rights or remedies,
including injunctive relief, which may be available under the law.
(b) The parties agree that Confidential Information does not include: (i)
information which was in the public domain at the time it was disclosed or comes
into the public domain through no fault of Xx. Xxxxxxx or his agents, (ii)
information as to which Xx. Xxxxxxx can carry the burden of proof that it was
known to Xx. Xxxxxxx at the time he received it from the Bank, as can be shown
by his files in existence at the time of receipt, (iii) information which is
disclosed with the prior written approval of an authorized representative of the
Bank, (iv) information which is known to Xx. Xxxxxxx from a source other than
Bank and without any breach of this Agreement by Xx. Xxxxxxx, properly and
legally disclosed to Xx. Xxxxxxx without confidentiality restrictions on its
use, and otherwise not disclosed to Xx. Xxxxxxx in violation of the Bank's
rights, (v) information which is deliberately disclosed to a third party by an
authorized representative of the Bank without disclosure restrictions similar or
analogous to those contained in this Agreement, other than disclosures to
government regulators, or (vi) information which is disclosed by Xx. Xxxxxxx
pursuant to the order or requirement of a court, administrative agency,
regulatory authority or other governmental body, in respect of which Xx. Xxxxxxx
shall make best, good faith efforts to promptly notify Bank of the pendency of
such order or requirement so that Bank has a reasonable opportunity to move for
a protective order in advance of any such disclosure.
4120669.14 6
19. NO RAIDING. As further consideration, to the fullest extent
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permitted by applicable law, Xx. Xxxxxxx agrees he will not solicit for
employment or solicit for hire, on behalf of himself or any other person,
company or entity, any employees of Bank, nor will he aid any other person,
entity or company to do so, unless Xx. Xxxxxxx receives prior written
authorization to do so from Xxxxxxxx Xxxxx (or her successor or delegee), from
the time he signs this Agreement through February 15, 1997, nor has he done so
within the three months prior to the time he signs this Agreement with one
exception with respect to an officer who made an inquiry of him (whose name has
been disclosed to counsel for Bank). A general advertisement through the mass
media soliciting applicants for a position or positions shall not constitute a
violation of this Paragraph. A breach of this Paragraph is a material breach.
The parties to this Agreement agree that, should Xx. Xxxxxxx violate the
provisions of this Paragraph, Bank shall be relieved of any obligation it may
have to provide any consideration to Xx. Xxxxxxx which has not yet been provided
under this Agreement, except Xx. Xxxxxxx shall continue to receive the
consideration provided for under Paragraphs 9, 10, and 11. In addition to any
remedy for breach of this Paragraph which is provided by this Paragraph, Bank
retains all other legal and equitable rights or remedies, including injunctive
relief, which may be available under the law.
20. CONFIDENTIALITY OF AGREEMENT TERMS. To the extent not disclosed to
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the public by an authorized representative of Bank, Xx. Xxxxxxx also agrees that
the terms and conditions of this Agreement and any and all actions by Bank in
accordance therewith, are strictly confidential and, with the exception of Xx.
Xxxxxxx'x counsel, tax advisor, financial advisor, immediate family, or as
required by applicable law or legal process, or to enforce Xx. Xxxxxxx'x rights
or secure performance by the Bank under this Agreement, have not been and shall
not be disclosed, discussed, or revealed by Xx. Xxxxxxx or his agents or
representatives to any other persons, entities, or organizations, whether within
or outside Bank, without prior written approval by Xxxxxxxx Xxxxx (or her
successor or delegee); provided, however, that Xx. Xxxxxxx shall not be
prohibited from disclosing the fact or terms of Paragraph 19. Xx. Xxxxxxx
further agrees to take all reasonable steps necessary to insure that
confidentiality is maintained by any of the individuals or entities referenced
above to whom disclosure is authorized. Xx. Xxxxxxx shall make best, good faith
efforts to promptly notify Bank of the pendency of any legal process or order
which requests or requires disclosure of information governed by this Paragraph
so that Bank has a reasonable opportunity to move for a protective order in
advance of any such disclosure. A breach of this Paragraph is a material
breach. The parties to this Agreement agree that, should Xx. Xxxxxxx violate
the provisions of this Paragraph, Bank shall be relieved of any obligation it
may have to provide any consideration to Xx. Xxxxxxx which has not yet been
provided under this Agreement, except Xx. Xxxxxxx shall continue to receive the
consideration provided for under Paragraphs 9, 10, and 11. In addition to any
remedy for breach of this Paragraph which is provided by this Paragraph, Bank
retains all other legal and equitable rights or remedies, including injunctive
relief, which may be available under the law.
4120669.14 7
21. RETURN OF BANK PROPERTY. Xx. Xxxxxxx further represents and/or
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agrees that he has returned or, prior to February 15, 1996, will return, or
allow to be returned, to Bank all equipment and/or other material property
belonging to it (including, without limitation, business credit cards, building
passes, building keys, parking passes, fax equipment, computer equipment,
security equipment including the alarm box at his home (except Bank will not
remove magnetic sensors from his home unless Bank compensates Xx. Xxxxxxx for
damages to his home caused by such removal), and phone equipment) which has been
or is in his care, custody, possession or control. Xx. Xxxxxxx agrees that, as
of February 15, 1996, he will reimburse or reconcile to the Bank's satisfaction
all outstanding expenses or bills charged or chargeable to the Bank under Bank
guidelines, except that the parties understand and agree that there may be
expenses incurred prior to February 15, 1996, for which the bills are received
after such date, and Xx. Xxxxxxx shall promptly reimburse or reconcile any such
bills. (Minimal if any such charges or expenses are anticipated after December
1, 1995.) In addition, Xx. Xxxxxxx agrees that, as of the date he executes this
Agreement, he has submitted all charges or business expenses incurred by him and
associated with his employment with the Bank and properly charged to Bank,
except for those bills he receives after he signs this Agreement, which he shall
promptly submit to the Bank. (Minimal if any such charges or expenses are
anticipated after December 1, 1995.)
22. FUTURE COOPERATION. Xx. Xxxxxxx additionally agrees to make himself
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reasonably available in connection with any and all claims, disputes,
negotiations, investigations, lawsuits or administrative proceedings involving
the Bank, to provide information or documents, provide declarations or
statements to the Bank, meet with attorneys or other representatives of the
Bank, prepare for and give depositions or testimony, and/or otherwise cooperate
in the investigation, defense or prosecution of such matters. Xx. Xxxxxxx
similarly agrees to cooperate with respect to providing information known to him
as a result of his employment with Bank and related to Bank business.
23. NO ADMISSION OF LIABILITY. By entering into this Agreement, neither
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party admits any liability whatsoever to the other party or to any other person
arising out of any claims heretofore or hereafter asserted by such party and
both Bank and Xx. Xxxxxxx expressly deny any and all such liability.
24. PAYMENTS NOT PART OF PENSION OR RETIREMENT PLANS. Except for the
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amounts payable under Xxxxxxxxx 0, xxxx of the expenses to be incurred by Bank
and/or payments or reimbursements to be made by Bank to Xx. Xxxxxxx pursuant to
this Agreement shall count as earnings for purposes of Xx. Xxxxxxx'x pension,
regular or supplemental retirement, or regular or supplemental savings plan
benefits, including specifically BankAmerishare or BankAmeraccount, or the
401(k) Investment Plan or the Pension Plan.
25. ATTORNEYS' FEES. As further mutual consideration of the promises set
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forth herein, the Bank and Xx. Xxxxxxx agree that they each are responsible for
their own
4120669.14 8
attorneys' fees and costs, and each agrees that they will not seek from the
other reimbursement for attorneys' fees and/or costs incurred in connection with
this Agreement or relating to any matters addressed in this Agreement.
26. JOINT PARTICIPATION IN PREPARATION OF AGREEMENT. The parties hereto
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participated jointly in the negotiation and preparation of this Agreement, and
each party has had the opportunity to obtain the advice of legal counsel and to
review, comment upon, and redraft this Agreement. Accordingly, it is agreed
that no rule of construction shall apply against any party or in favor of any
party. This Agreement shall be construed as if the parties jointly prepared
this Agreement, and any uncertainty or ambiguity shall not be interpreted
against any one party and in favor of the other.
27. NO OTHER CLAIMS.
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(a) Xx. Xxxxxxx agrees and represents that he has not filed or otherwise
pursued any charges, complaints or claims of any nature with any local, state or
federal government agency or court with respect to any Released Claims and, to
the extent permitted by law, he will not do so in the future. If any government
agency or court assumes jurisdiction of any Released Claim, Xx. Xxxxxxx will
take such actions to ensure that such agency or court withdraws from and/or
dismisses the matter with prejudice, including but not limited to, requesting
such action by such agency or court, and he will not participate or cooperate in
such matter(s) except as required by law or as specified in this Agreement. Xx.
Xxxxxxx agrees that the Bank has no obligation to provide any consideration
under this Agreement if, at any time from the date this Agreement is executed by
Xx. Xxxxxxx through the date any such payment, payments or other consideration
would otherwise become due or payable, Xx. Xxxxxxx has filed any lawsuit,
administrative charge or claim of any nature with any local, state or federal
government agency or court against any Released Party with respect to any
Released Claim, except Xx. Xxxxxxx shall continue to receive the consideration
provided for under Paragraphs 9, 10, and 11.
(b) Bank agrees and represents that it has not filed or otherwise pursued
any charges, complaints or claims of any nature with any local, state or federal
government agency or court with respect to claims released or waived under
Paragraph 15 of this Agreement and, to the extent permitted by law, it will not
do so in the future. If any government agency or court assumes jurisdiction of
any claims released or waived under Paragraph 15, Bank will take such actions to
ensure that such agency or court withdraws from and/or dismisses the matter with
prejudice, including but not limited to, requesting such action by such agency
or court, and Bank will not participate or cooperate in such matter(s) except as
required by law or as specified in this Agreement.
28. ASSIGNMENTS. Xx. Xxxxxxx represents and warrants that he has not
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assigned or transferred to any person, company or entity any of his Released
Claims, including but not limited to any covenant not to xxx. Bank represents
and warrants that it has not assigned
4120669.14 9
or transferred to any person, company or entity any of its claims released or
waived under Paragraph 15, including but not limited to any covenant not to xxx.
29. SEVERABILITY. Should any of the clauses or provisions of this
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Agreement be rendered invalid by a court or government agency of competent
jurisdiction, it is agreed that this shall not in any way or manner affect the
enforceability of the other provisions of this Agreement which shall remain in
full force and effect. The parties further agree that California law shall
govern the validity and interpretation of this Agreement and that jurisdiction
and/or venue of any action involving the validity, interpretation or enforcement
of this Agreement or any of its terms, provisions or obligations or claiming
breach thereof, shall exist exclusively in a court or government agency located
within San Francisco, California.
30. SCOPE OF AGREEMENT. Xx. Xxxxxxx hereby affirms and acknowledges that
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he has read the foregoing Agreement, that he has had the opportunity to review
or discuss it and has reviewed or discussed it with the counsel of his choice,
that changes have been made to the Agreement at his request, and that he fully
understands and appreciates the meaning of each of its terms. The parties to
this Agreement represent that this Agreement may be used as evidence in any
subsequent proceeding in which any of the parties alleges a breach of this
Agreement or seeks to enforce its terms, provisions or obligations.
31. RECOVERY OF FEES AND COSTS. In the event of litigation arising under
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this Agreement, the prevailing party is entitled to reasonable attorneys' fees
and costs in addition to any other relief to which it is determined the
prevailing party is entitled.
32. FAILURE TO MAKE PAYMENTS. This Agreement shall be null and void at
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Xx. Xxxxxxx'x prompt election if Bank fails to, in fact, provide the payments as
called for by Paragraphs 4, 5, and 7 or the consideration as called for by
Paragraphs 9 and 10, promptly following a demand to do so by Xx. Xxxxxxx.
However, a good faith dispute with respect to the number or amount of options,
stock appreciation rights, DEC account credits, or Performance Share Units, or a
good faith dispute with respect to the exercise periods or the terms or
application of the Plan documents or Option Agreements, shall not serve as a
basis for Xx. Xxxxxxx to elect to declare the Agreement null and void. Should
Xx. Xxxxxxx declare the Agreement null and void, he may retain and continue to
receive the consideration as called for by Paragraphs 9 and 10 but he shall
return and no longer be eligible to receive the payments as called for by
Paragraphs 5 and 7. In addition, should Xx. Xxxxxxx declare the Agreement null
and void, in addition to the provisions of this Paragraph, Xx. Xxxxxxx may
pursue any remedies against the Bank available under applicable law.
33. ENTIRE AGREEMENT. This Agreement constitutes the complete
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understanding between Xx. Xxxxxxx and Bank and supersedes any and all prior
agreements, promises, representations, or inducements, no matter its or their
form, concerning its subject matter. Section headings in this Agreement are
included for convenience of reference only and shall
4120669.14 10
not be considered part of this Agreement for any other purpose. No promises or
agreements made subsequent to the execution of this Agreement by these parties
shall be binding unless reduced to writing and signed by Xx. Xxxxxxx and
Xxxxxxxx Xxxxx (or her successor or delegee).
PLEASE TAKE THIS AGREEMENT HOME AND CAREFULLY CONSIDER ALL OF ITS
PROVISIONS BEFORE SIGNING IT. YOU SHOULD CONSULT AN ATTORNEY OF
YOUR CHOICE ABOUT THIS AGREEMENT BEFORE YOU SIGN THE AGREEMENT.
THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS
TO THE EXTENT PERMITTED BY LAW.
XXXXX X. XXXXXXX
DATED: December 1, 1995 /s/ XXXXX X. XXXXXXX
---------------- ----------------------------
"BANK"
DATED: December 4, 1995 by /s/ XXXXXXXX X. XXXXX
---------------- --------------------------
Xxxxxxxx X. Xxxxx
Vice Chairman
4120669.14 11
ATTACHMENT A
STATEMENT OF NON-REVOCATION
AS OF THE DATE SHOWN ON THIS FORM
By signing below, I hereby verify that I have chosen not to revoke my
agreement to and execution of the General Release and Settlement Agreement. My
signature confirms my renewed agreement to the terms of that Agreement,
including the release and waiver of any and all claims relating to my employment
with Bank and/or the termination of that employment, and of all other claims
released or waived under Paragraphs 13 and 14 of the General Release and
Settlement Agreement.
XXXXX X. XXXXXXX ###-##-####
-------------------------- ---------------------------------
Name (Please Print) Social Security Number
/s/ XXXXX X. XXXXXXX December 13, 1995
-------------------------- ----------------------------------
Signature* Date*
*DO NOT SIGN, DATE OR RETURN THIS DOCUMENT UNTIL EIGHT (8) DAYS AFTER YOU SIGN
THE GENERAL RELEASE AND SETTLEMENT AGREEMENT.
4120669.14 12
ATTACHMENT B
CONFIRMATION OF GENERAL RELEASE AND SETTLEMENT AGREEMENT
By signing below, I hereby acknowledge and confirm my agreement to all the
terms of the General Release and Settlement Agreement ("Agreement"). I also
agree, that as of the date I sign this document, I release and waive any and all
additional employment claims (e.g., statutory employment claims, wrongful
----
discharge types of claims or related claims, breach of employment contract types
of claims, but not claims for breach of the Agreement itself) I may have
relating to my employment within BankAmerica Corporation and/or the termination
of that relationship which I would not have but for my being an employee of
BankAmerica Corporation since the time I signed the Agreement.
/s/ XXXXX X. XXXXXXX February 18, 1996
--------------------------------- -----------------------------
Signature* Date*
*DO NOT SIGN, DATE OR RETURN THIS DOCUMENT BEFORE FEBRUARY 16, 1996
4120669.14 13
