EXHIBIT NO. 10.35
RELEASE AGREEMENT
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This Release Agreement ("Agreement"), dated as of November 16, 1998, is made by
and among BANK PLUS CORPORATION, a Delaware corporation ("Bank Plus"), FIDELITY
FEDERAL BANK, A FEDERAL SAVINGS BANK ("Fidelity"); BANK PLUS CREDIT SERVICES
CORPORATION, a Delaware corporation ("BPCS"), and X.X. Xxxxxx III. Bank Plus,
Fidelity and BPCS and their respective direct and indirect subsidiaries shall be
known as the "Company".
A. By mutual agreement, Employee's active employment with the
Company will end effective November 30, 1998.
B. The Company and Employee wish to resolve certain claims the
parties may have arisen out of or related to Employee's employment by the
Company.
C. Employee is a party to a letter agreement dated as of August
1, 1997 (the "CIC/Severance Agreement"), an Interoffice memorandum dated March
10, 1998 (the "Relocation Agreement"), an Incentive Stock Option Agreement dated
December 11, 1995 as amended on February 28, 1996 (the "ISO Agreement"), and
Stock Option Agreement dated April 29, 1998 (the "Stock Option Agreement"). (The
CIC/Severance Agreement, Relocation Agreement, ISO Agreement and Stock Option
Agreement shall collectively be known as the "Employee Agreements".)
D. The parties hereto have entered into a consulting agreement of
even date herewith (the "Consulting Agreement").
NOW, THEREFORE, in consideration of the foregoing recitals and the
terms and conditions of this Agreement, the parties hereto agree as follows:
1. EMPLOYEE RELEASE.
a) Employee (for himself, his agents, heirs, successors, assigns,
executors and/or administrators) does hereby and forever
release and discharge Bank Plus, Fidelity, BPCS and their
respective affiliated corporations or entities, as well as the
officers, directors, employees, consultants, accountants,
agents and attorneys and representatives of each of them, past
or present, from any and all causes of action, actions,
judgments, liens, debts, contracts, lawsuits, indebtedness,
damages, losses, claims, liabilities, rights, interests and
demands of whatsoever kind of character, known or unknown,
suspected to exist or not suspected to exist, anticipated or
not anticipated, contingent or absolute, whether or not
heretofore brought before any state or federal court or before
any state or federal agency or other governmental entity, that
Employee has or may have against any released person or
entity, by reason of any and all acts, omissions, events or
facts occurring or existing prior to the date hereof,
including, without limitation, all claims attributable to the
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employment of employee, all claims attributable to the
termination of that employment, all claims arising under the
Employee Agreements (including all costs, expenses and
obligations set forth in or contemplated by the Relocation
Agreement, including but not limited to, those pertaining to
housing related expenses (mortgage payments, utilities, taxes,
furnishings, upkeep and maintenance); club memberships
(country, business and athletic); theatre subscriptions
(symphony, opera and dramatic) and automobile related expenses
(lease payments, insurance, maintenance/upkeep and fuel)), all
claims asserting breach of an actual or implied contract, and
all claims arising under any federal, state or other
governmental statute, regulation or ordinance or common law,
such as for example and without limitation, Title VII of the
Civil Rights Act of 1964 which prohibits discrimination on the
basis of sex, race, color, national origin and religion, the
Civil Rights Act of 1866, the Age Discrimination in Employment
Act which prohibits discrimination on the basis of age over
40, the California Fair Employment and Housing Act which
prohibits discrimination on the basis of race, religious
creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, age over
40, and sex, the California Labor Code, and wrongful
termination claims; provided, however, that the foregoing
release and discharge shall not apply to those obligations
expressly recited to be performed hereunder, obligations
contemplated under the Consulting Agreement, the indemnity
agreement between the Company and Employee, Deferred
Compensation Plan, or obligations under the Company's
Retirement Income Plan or 401(k) Savings and Investment Plan,
if any.
In light of the intention of Employee (for himself, his
agents, heirs, successors, assigns, executors and/or
administrators) that this release extend to any and all claims
of whatsoever kind or character, known or unknown, Employee
expressly waives any and all rights granted by California
Civil Code Section 1542 (or any other analogous federal or
state law or regulation), and does so understanding and
acknowledging the significance and consequence of such
specific waiver of Section 1542. Section 1542 of the Civil
Code of the State of California states 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.
Thus, notwithstanding the provisions of Section 1542, and for
the purposes of implementing a full and complete release by
Employee, Employee expressly acknowledges that this Agreement
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is intended to include in its effect, without limitation, all
claims that Employee does not know or suspect to exist in his
favor at the time of execution hereof, and that this Agreement
contemplates the extinguishment of any such claim or claims.
b) Employee expressly waives, releases and relinquishes any and
all rights, options and grants under the ISO Agreement and
Stock Option Agreement including, but not limited to, the
right to exercise stock options prior to, on or after November
30, 1998.
c) Employee agrees that no payment is due him from the Company
pertaining to unpaid vacation pay or accrual.
d) Employee represents and warrants to the Company that he has
not sold, assigned, hypothecated, pledged or otherwise
transferred or attempted to transfer any claim or right set
forth in this Agreement.
2. COMPANY RELEASE. Each of the Bank Plus, Fidelity and BPCS does
hereby and forever release and discharge Employee, from any and all known causes
of action, actions, judgments, liens, debts, contracts, indebtedness, damages,
losses, claims liabilities, rights, interests and demands of whatsoever kind of
character, which either Bank Plus, Fidelity or BPCS has or may have against any
Employee by reason of any and all acts, omissions, events or facts occurring or
existing prior to the date hereof that are known to Bank Plus, Fidelity or BPCS,
including, without limitation, all known claims attributable to the employment
of employee, all known claims attributable to the termination of that
employment, all known claims asserting breach of an actual or implied contract,
and all known claims arising under any federal, state or other governmental
statute, regulation or ordinance or common law; provided, however, that the
foregoing release and discharge shall not apply to those obligations expressly
recited to be performed hereunder obligations contemplated under the Consulting
Agreement, indemnity agreement between the Company and Employee, Deferred
Compensation Plan, or obligations under the Company's Retirement Income Plan or
401(k), Savings and Investment Plan. Reference to known matters in the preceding
sentence shall be deemed to mean matters known to any director or member, as of
August 26, 1998, of the Executive Management Committee (in each case excluding
Employee) of Bank Plus or Fidelity. The releases set forth in this Section 2
shall not pertain in any nature or degree to any credit card, mortgage,
automobile loan, home equity loan, instant reserve account (overdraft
protection) or other credit or loan relationship, transaction or agreement under
which the Company, or any of the entities which comprise same, is the
creditor/obligee and Employee is the debtor/obligor.
3. INDEMNIFICATION OBLIGATIONS. Notwithstanding the foregoing,
each of Bank Plus and Fidelity hereby reaffirms its indemnification obligations
to Employee under the terms of its bylaws and its indemnity agreement with
Employee in effect on August 26, 1998.
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4. NO ADMISSIONS. Nothing contained herein shall be construed as
an admission of any wrongdoing or liability whatsoever by Bank Plus, Fidelity or
Employee.
5. ONETIME CASH PAYMENTS. On or after November 30, 1998, Company
will mail to employee the following payments:
- A check for Employee's salary earned and unpaid from the
last salary payment date of November 20, 1998, up to and
including November 30, 1998, less applicable deductions
and withholding, resulting in the net amount of $3,298.59.
- A check for $11,433.34, to cover Employee's COBRA payments
for Employee's medical, dental and vision insurance
coverages received through the Company for twelve months
from December 1, 1998 through and including November 30,
1999, after which date Employee shall be solely
responsible for any further COBRA related costs. Employee
shall be solely responsible for timely applying for COBRA
benefits through the Company and for making all payments
required thereunder on and after December 1, 1998.
Additionally, upon the expiration of the waiting period and
non-revocation of this Agreement by the Employee as described in Section 8
hereof, the Company shall pay to Employee, in consideration of the releases set
forth in Section 1 hereof and any and all rights, claims and agreements under
the Employee Agreements, a lump sum payment of $56,000.00, representing
reimbursement of disputed relocation and other expenses. The foregoing
description of onetime cash payments is not intended to limit the obligations of
the Company to employee under the Consulting Agreement.
6. CONFIDENTIALITY. As a member of senior management of the
Company, employee has occupied a position of trust with respect to business
information of a secret or confidential nature. As a material provision of this
Agreement, Employee agrees to maintain in strictest confidence all confidential
information in trust for the Company, its successors and assigns, employee
agrees to not misappropriate, disclose, or make available to anyone outside of
the Company at any time any confidential information or anything relating
thereto, without the prior written consent of Bank Plus, which consent may be
withheld for any reason or no reason at all. Employee will forthwith return all
copies of information relating to the Company's businesses, prospects, or
confidential information (in whatever form, including, without limitation,
computer diskettes and hard drives). Employee will also forthwith surrender all
other personal property of the Company in his possession, including, without
limitation, access cards, identification badge, computer(s) (including, but not
limited to laptop and desktop computers, monitors, keyboards, printers,
peripherals, and other computer related equipment), computer password(s),
computer software and cellular telephone(s).
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As used herein, the term "confidential information" shall
include, without limitation, all discounted cash flow analyses; valuations; cost
basis information regarding Fidelity's REO and other assets; matters involving
the operation of the Company's financial models; personal financial and
biographical information regarding directors, officers, employees, and customers
of the Company; communications to and from regulatory agencies (including the
Office of Thrift Supervision, Federal Deposit Insurance Corporation, Securities
and Exchange Commission, Federal Home Loan Bank and any and other federal or
state agency having regulatory oversight over Fidelity, Bank Plus, or any of
their respective subsidiary or affiliated entities; customer or trade lists;
financial data; trade secrets; marketing plans; marketing studies; training
manuals; software; strategic plans; formulas; and technical information of any
kind learned by Employee during his employment with the Company. The term
"confidential information" shall not include information that (i) is or becomes
available to the public other than as a result of a disclosure by you, (ii) was
within your knowledge from a source other than the Company or its
representative, or was independently developed by you, prior to its disclosure
to you by or on behalf of the Company, provided that such source is not bound by
a confidentiality agreement with the Company or its representative, or (iii)
becomes available to you on a non-confidential basis from a source other than
the Company, provided that such source is not bound by a confidentiality
agreement with the Company or its representative.
7. ENTIRE AGREEMENT. This Agreement constitutes a single
integrated contract expressing, together with the Consulting Agreement, the
entire agreement of the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous oral and written agreements and
discussions with respect to the subject matter hereof. There are no other
agreements, written or oral, express or implied, between the parties hereto,
concerning the subject matter hereof, except as set forth herein and in the
Consulting Agreement. This Agreement may be amended or modified only by an
agreement in writing.
8. WAITING PERIOD AND RIGHT OF REVOCATION. Employee
acknowledges that he is aware that and is hereby advised that he has the right
to consider this Agreement for twenty-one days before signing it, and that if he
signs this Agreement prior to the expiration of twenty-one days, he is waiving
this right freely and voluntarily. Employee also acknowledges that he is aware
of and is hereby advised of his right to revoke this Agreement for a period of
seven days following the signing of this Agreement and that it shall not become
effective or enforceable until the revocation period has expired. To revoke this
Agreement, Employee must notify the Company within seven days of signing it.
9. ATTORNEY ADVICE. Employee acknowledges that he is aware of
his right to consult an attorney, that he has been advised to consult with an
attorney, and that he has consulted with an attorney of his choosing prior to
signing this Agreement.
10. UNDERSTANDING OF AGREEMENT. The parties hereto each state
that each has carefully read this Agreement, that each has had sufficient time
and opportunity to consider its terms and to obtain legal advice relating
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thereto, that each fully understands its final and binding effect, that the only
promises made to each of the parties to sign this Agreement are those stated
above, and that each of the parties is signing this Agreement voluntarily.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
DATED: DECEMBER 2, 1998 BY /S/ X.X. XXXXXX III
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X. X. XXXXXX III
DATED: DECEMBER 7, 1998 BANK PLUS CORPORATION
BY /S/ XXXX X. XXXXX
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DATED: DECEMBER 7, 1998 FIDELITY FEDERAL BANK,
A FEDERAL SAVINGS BANK
BY /S/ XXXX X. XXXXX
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DATED: DECEMBER 7, 1998 BANK PLUS CREDIT SERVICES CORPORATION
BY /S/ XXXX X. XXXXX
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APPROVED AS TO FORM AND CONTENT:
BERGER, KAHN, SHAFTON, MOSS,
XXXXXX, XXXXX & GLADSTONE
DATED: DECEMBER 4, 1998 BY /S/ XXXX X. XXXX
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XXXX X. XXXX
ATTORNEY FOR X.X.XXXXXX III
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Release Agreement
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DATED: DECEMBER 7, 1998 BY XXXXXXX X. XXXX
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XXXXXXX X. XXXX
ATTORNEY FOR THE COMPANY
