EXHIBIT 10.18
SEPARATION AGREEMENT
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This Separation Agreement ("Agreement") is made and entered into on the
5th day of December, 2001, between First National Bank of Northern California, a
national banking association with its executive offices at 000 Xx Xxxxxx Xxxx,
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (the "Bank" or "Employer"), and Xxxx X.
Xxxxx ("Employee"), as follows:
1. Termination of Employment.
(a) Employee's employment with the Bank will be deemed to have ended
effective as of October 31, 2001. Employee hereby confirms that he voluntarily
resigned as an employee and officer of the Bank, and the Bank hereby confirms
that it has accepted Employee's resignation, effective as of said date. Employee
also confirms that he voluntarily resigned as an employee and officer of FNB
Bancorp, a California corporation and affiliate of the Bank, effective as of
said date. Employee further confirms that his resignation from the Bank and FNB
Bancorp includes his resignation, also effective as of October 31, 2001, as a
Director and member of the Board of Directors of the Bank and as a Director and
member of the Board of Directors of FNB Bancorp, which resignations have been
accepted.
(b) The Bank shall pay to Employee, as severance salary, continuation
payments (calculated according to Employee's existing annual rate of pay) for a
period of eighteen (18) months, commencing from November 1, 2001. Said payments
shall be made by Employer to Employee according to Employer's current (monthly)
payroll practices, less applicable tax withholdings. Payments shall be made to
Employee by mail or in such other manner as Employee designates in writing. In
the event Employee revokes this Agreement pursuant to the terms of Paragraph 10
below, Employee shall return all consideration received from Employer hereunder
within five (5) days following such revocation.
(c) The Bank shall make Employee's COBRA payments for continuation of
his existing group insurance coverage (for Employee and his eligible dependents)
for a period of eighteen (18) months, commencing from November 1, 2001.
Thereafter, Employee will be solely responsible for maintaining such coverage,
through COBRA or otherwise.
(d) Employer shall, upon request of Employee, provide to Employee a
letter of reference.
(e) Employee has entered into a Salary Continuation Agreement with the
Bank dated December 20, 1996 (the "Salary Continuation Agreement"). This
Agreement shall constitute a determination by the Bank, under Section 1.1.13 of
the Salary Continuation Agreement, that Employee's termination of employment
with the Bank shall be treated as an "Involuntary Termination" for purposes of
the Salary Termination Agreement; and the Bank hereby agrees that Employee shall
be entitled to receive the early termination benefit specified under Section 2.2
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of the Salary Continuation Agreement in respect of an "Involuntary Termination."
The Bank and Employee agree that the amount of said benefit (the "Vested Accrued
Liability" amount set forth in Schedule "A" of the Salary Continuation
Agreement), as said benefit is referenced under Sections 2.2.1, 2.2.2 and 2.2.3
of the Salary Termination Agreement, shall be $360,167.00.
(f) Employer and Employee each has previously returned or promptly upon
signing this Agreement will promptly return to the other any and all personal
property of the other in the possession of Employer/Employee.
(g) Employer and Employee hereby acknowledge the incentive stock
options granted to Employee and currently outstanding under the First National
Bank of Northern California 1997 Stock Option Plan (the "Stock Option Plan"). It
is agreed that all such options shall continue to be governed by the incentive
stock option agreements executed between Employer and Employee plus the
applicable provisions of the Stock Option Plan, notwithstanding anything to the
contrary in this Agreement; provided, however, that the effective date of
Employee's resignation and termination of employment with the Bank, for purposes
of such incentive stock option agreements, shall be October 31, 2001, the same
termination date as specified in this Agreement.
2. Release.
(a) Employee, on behalf of himself, and any other person or entity
which could make any claims through him, forever releases and fully discharges
Employer and its directors, officers, members, employees, agents,
representatives, heirs, predecessors, successors, assigns, insurers,
subsidiaries, partners, parents, joint venturers, affilliates, and any other
person or entity that could be made liable through it from:
(i) all claims of any kind that Employee could assert
against Employer including, but not limited to, claims arising from or related
in any manner to Employee's employment or separation of employment with
Employer; and
(ii) all claims (whether or not the parties know about or
suspect the claims and whether or not the claims have matured) which Employee
previously had, now has, or may in the future have against Employer.
(b) Nothing contained anywhere in this Agreement shall be considered a
waiver of claims which cannot be waived as a matter of law or public policy, or
of any rights or obligations granted under this Agreement.
(c) As used throughout this Agreement, "claims" includes, but is not
limited to, claims arising from or related in any manner to: breach of any
contract, breach of the covenant of good faith and fair dealing, breach of
fiduciary duty, breach or violation of any securities laws or regulations,
emotional distress, fraud, discrimination on any basis, including discrimination
based upon age, disability, marital status, medical condition, race, ancestry,
color, national origin, sex, sexual orientation, veteran status, and any other
basis upon which local, state, or federal laws or regulations prohibit
discrimination, harassment in any form or manner, payment of wages or other
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compensation, equal pay, violation of any provision of the California Labor
Code, violation of ERISA, OSHA and Cal-OSHA laws, wage and hour laws, and
workers compensation laws, fraud or any provision of any benefit plant
(including, but not limited to, breach of any stock option, deferred
compensation, profit sharing or stock purchase plan), violation of public
policy, defamation and any other claims relating in any manner to Employee's
relationship with Employer and any of its related persons or entities described
in this Agreement.
3. Waiver of Civil Code Section 1542. Employee expressly understands
and acknowledges that he may not know that he has claims against Employer, or
that Employee is aware of claims against Employer but may have underestimated
the amount or severity of those claims. Employee acknowledges that he
specifically took these factors into account in agreeing to the terms of this
Agreement and to the promises contained in this Agreement. A portion of the
payments, benefits, and promises in this Agreement was given in exchange for a
full satisfaction and discharge of all such claims. With respect to the claims
as described in this Agreement, Employee specifically waives all rights he might
have under California Civil Code Section 1542, which provides that:
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. Indemnification. Employer shall fully defend and indemnify Employee
with respect to any activity undertaken by Employee during his tenure with
Employer; provided, however, that such obligation by Employer shall not extend
to any act, omission, or statement by Employee that constitutes a criminal
violation (unless he had no reasonable cause to believe his conduct was
unlawful) or gross and willful negligence (unless he acted in good faith and in
a manner he believed to be in, or not opposed to, Employer's best interests). In
the event a claim is asserted against Employee to which this paragraph applies,
Employer shall have sole and exclusive right to select counsel to defend
Employee, and Employee shall cooperate fully with Employer and said counsel in
the defense of the claim. In addition, in the event a lawsuit is filed by
Employer against a third party or by a third party against Employer (not
involving a claim asserted against Employee) in connection with any activity
undertaken by Employee during his tenure with Employer, then Employee agrees
that (a) he will cooperate with Employer in the prosecution or defense of such
suit, as the case may be, (b) he will make himself reasonably available for
conferences with counsel representing Employer and as a witness, and will
provide all requested information, which information shall be truthful and
complete to the best of his ability, and (c) he will not engage in any acts or
omissions which have the purpose or effect of thwarting Employer's ability to
assert or protect the interests of the Bank in such suit.
5. No Admissions. Employee and Employer each understands and
acknowledges that neither party admits that any claim which Employee has made or
could make against Employer, or that any claim which Employer has made or could
make against Employee is true or false or that Employer is at fault or has any
liability to Employee or any other person or entity, or that Employee is at
fault or has any liability to Employer, or to any other person or entity.
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6. Public Announcement and Other Statements. Neither Employee nor
Employer shall make any derogatory statement about the other. Employer has
previously announced the resignation of Employee to the employees of the Bank
and Employee agrees that the wording of such announcement was appropriate and
may be repeated by Employer when explaining Employee's resignation to
shareholders of the Bank, to customers of the Bank and to the general public.
Employer shall only respond to Employee's prospective successor employer's
inquiries consistent with the letter and spirit of this Agreement. Additionally,
Employer agrees that it will inform those of its employees to whom it is
obligated under the law to make such a report, and to those of its employees of
whom it has made inquiries, that inquiries have revealed no act or statement by
Employee that would constitute any violation of the law. Employee also agrees to
only make statements regarding his separation from Employer that are consistent
with the letter and spirit of this Agreement. In the event an arbitrator
determines, at the conclusion of any proceedings pursuant to Paragraph 12 of
this Agreement, that Employee has made any statement that materially departs
from the letter and spirit of this Agreement, at its sole option Employer either
may be relieved of any obligation to make further payments under sub-paragraphs
1(b) and 1(c) of this Agreement, or may be relieved of its obligations under
this Paragraph 6.
7. Governing Law. This Agreement shall be construed under and governed
by the laws of the State of California. This Agreement shall be deemed to have
been entered into and performed in South San Francisco, California. All
questions of validity, interpretation or performance of any of the terms of this
Agreement or any rights or obligations of Employee or Employer shall be governed
by California law.
8. Entire Agreement. This Agreement contains the entire agreement
between Employee and Employer pertaining to Employee's relationship with
Employer. This Agreement supersedes any and all prior and/or concurrent oral or
written negotiations, discussions, agreements, representations, and
understandings. No modification of this Agreement is valid unless in writing
signed by Employee and Employer. Employee and Employer each acknowledges and
represents that in agreeing to and signing this Agreement, each party acted
voluntarily and did not rely upon any inducement, statement, promise, or
representation other than those contained in this Agreement.
9. Severability. If a court which has jurisdiction finds that any
provision of this Agreement is invalid, unenforceable, or void, the remainder of
this Agreement shall remain in full force. Similarly, if a court which has
jurisdiction finds that any provision of this Agreement as applied to particular
persons, places and/or circumstances is invalid, unenforceable, or void, the
provision as applied to any other persons, places, or circumstances and the
balance of the Agreement shall remain in full force and effect.
10. Effective Date. Employee acknowledges that, among other claims, he
is waiving all claims for age discrimination under state and federal law,
including, but not limited to, the California Fair Employment and Housing Act
and the federal Age Discrimination in Employment Act. Employee acknowledges and
confirms that he has been provided more than twenty-one (21) days in which to
consider and sign this Agreement, in accordance with the Older Workers Benefit
Protection Act. In accordance with said Older Workers Benefit Protection Act,
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Employee further acknowledges and confirms that he shall have seven (7) days
following the date of signing this Agreement in which to revoke the Agreement.
This Agreement shall be effective on the eighth (8th) day after execution of
this Agreement by Employee ("Effective Date").
11. Voluntary Execution of Agreement. Employee and Employer each
acknowledges that each has agreed to all of the terms of this Agreement, has
signed this Agreement voluntarily, and has not been subjected to threats or
excessive influence by any other party. Employee further acknowledges that he
has signed this Agreement with the full intent of releasing all claims as
specified herein. Employee and Employer each further specifically acknowledges
that:
(a) Each has read this Agreement;
(b) Each has had full opportunity to consult with his/its own attorney
prior to agreeing to and signing this Agreement and for the negotiation of this
Agreement and has either done so, or voluntarily declined to do so;
(c) Each acknowledges that each understands the terms and consequences
of this Agreement and of the releases it contains and has had full opportunity
to ask any questions about this Agreement, its terms and its effect; and
(d) Each is fully aware of the legal and binding effect of this
Agreement.
12. Arbitration. In the event either party believes that the other has
violated any material provision of this Agreement, or in the event any other
dispute arises over the meaning or application of this Agreement, Employer and
Employee agree that such controversy shall be fully and finally decided by
binding arbitration before a single neutral arbitrator to take place in San
Mateo County, California, on an accelerated basis, without right to decision by
a jury and without right of appeal. The party making a claim shall describe that
claim in writing with reasonable particularity in the form of a demand for
arbitration and request for specific relief. Employer agrees to advance all
costs of the arbitration and arbitrator. In the event Employer is deemed by the
arbitrator to be the non-prevailing party in the arbitration, it shall also
reimburse Employee's reasonable attorneys' fees in the amount determined by the
arbitrator. In the event Employee is deemed by the arbitrator to be the
non-prevailing party, he shall reimburse one-half of the amounts advanced by
Employer for the arbitrator and arbitration.
13. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
14. Authority. Employer represents and warrants that the undersigned
representative has the authority to act on its behalf and to bind it and any and
all who may claim through it to this Agreement. Employee represents and warrants
that he has the capacity to act on his own behalf and on behalf of all who might
claim through him to bind him to this Agreement.
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EMPLOYER: EMPLOYEE:
FIRST NATIONAL BANK
OF NORTHERN CALIFORNIA
By /s/ XXXXXX X. XXXXXX /s/ XXXX X. XXXXX
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Xxxxxx X. XxXxxx Xxxx X. Xxxxx
President and Chief Operating Officer
Address for notices: Address for notices:
000 Xx Xxxxxx Xxxx 0000 Xxxxxxx Xxxxxx
Xxxxx Xxx Xxxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Approved as to form by the
undersigned, as legal counsel to
Xxxx X. Xxxxx:
/s/ XXXXXX X. STRETCH
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Xxxxxx X. Stretch
Attorney at Law
000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
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