Exhibit 10.19
SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
Xxxxxx X. Xxxxxx (hereinafter "Employee") on the one hand, Feather
River State Bank and California Independent Bancorp (collectively hereinafter,
"Employer"), on the other hand, hereby enter into this Severance Agreement and
Release of Claims (hereinafter, "Agreement") under the following terms and
conditions:
1. BACKGROUND AND PURPOSE.
1.1 Employee was employed by Employer as President and Chief
Executive Officer.
1.2 Employee, for his part, and Employer, for its part, desire
to mutually sever the employment relationship between them on the terms and
conditions set forth below.
2. EFFECTIVE DATE. This Agreement shall become effective upon the
earlier of June 30, 1999, or immediately following three days written notice by
Employer.
3. CONSIDERATION. In consideration of the releases and agreements set
forth herein Employer agrees to provide Employee with the following severance
benefits:
3.1. Employee shall receive any unpaid portion of his earned
vacation and amounts due pursuant to the deferred bonus program;
3.2. Employer shall match, pursuant to the plan's limitations,
any contributions made by Employee through the effective date of this Agreement
in 1999 to Employer's 401(k) plan;
3.3 Beginning the effective date of this Agreement, Employee
shall be entitled to elect to receive COBRA benefits as provided by law.
3.4 Within thirty (30) days of the effective date, Employee
shall receive a lump sum severance benefit payment in the amount of eight
thousand dollars ($8,000), less all legally required employee deductions and
withholdings.
3.5 EXECUTIVE SALARY CONTINUATION AGREEMENTS. Employer and
Employee previously entered into Executive Salary Continuation Agreements dated
April 28, 1993 and February 4, 1997 ("Salary Continuation Agreements"). As of
the date of this Agreement, Employee shall be deemed fully vested in the amounts
described in the column identified as "Accrued Salary Continuation Liability"
for plan year six (6) of the 1993 Salary Continuation Agreement ($101,889) and
for plan year two (2) of the 1997 Salary Continuation Agreement ($33,226).
Hereafter, the aggregate of these vested amounts ($135,115) shall accrue
interest at a
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rate of 6.5% per annum until paid in full. Upon Employee attaining age 62,
Employee shall receive payment of the vested sum in sixty (60) equal monthly
installments together with accrued interest, payable with each installment, on
the first day of each month. Should Employee die after age 62, commencing ninety
(90) days following the date of his death, FRSB shall make all remaining
payments owed to Employee's designated beneficiary. In the event of Employee's
death prior to age 62, commencing ninety (90) days following the date of his
death, FRSB shall pay all sums owed to Employee's designated beneficiary in
sixty (60) equal monthly installments, payable on the first day of each month.
If Consultant has not designated a beneficiary, the payments described herein
shall be made to the Consultant's surviving spouse or, if none, to the duly
qualified personal representative, executor or administrator of Consultant's
estate.
3.6 Employee agrees that he is not entitled to any payments,
including bonuses except for those payments expressly provided for in this
Agreement.
3.7 Upon receipt of the notice specified in Paragraph 2,
Employee will immediately provide Employer with a written resignation from all
director and officer positions he currently holds with California Independent
Bancorp, Feather River State Bank and with any subsidiaries or affiliates of
either entity.
4. RELINQUISHMENT OF ENTITLEMENT TO SALARY CONTINUATION AGREEMENT.
Except as otherwise provided for in this Agreement, Employee relinquishes any
rights, or entitlement to payments or other benefits he may have pursuant to the
terms of the Salary Continuation Agreements.
5. NON-RAIDING AND NON-SOLICITATION OF CUSTOMERS. Employee shall not,
acting directly or indirectly, solicit, induce or attempt to induce or encourage
any of the employees or consultants of Employer to leave their employment.
Employee further agrees that he shall not, acting directly or indirectly,
utilize any confidential information, trade secrets, or customer, borrower or
depositor or other information obtained from Employer or while serving as an
employee, to solicit, induce or attempt to induce or encourage any customer,
borrower or depositor of Employer to end, modify or terminate its relationship
with Employer.
6. COOPERATION. Employee agrees to cooperate fully with Employer in the
future in the event any litigation, arbitration or other legal or administrative
proceeding or investigation is initiated by or against Employer. Said
cooperation includes, but is not limited to, making himself available to
Employer and/or the Employer's attorneys to answer questions regarding any loans
or other activities of the Employer for which Employee has knowledge, to assist
the Employer by making himself available to testify as a witness at any
proceeding or deposition, and to cooperate fully in any investigation the
Employer may need to conduct in either prosecuting or defending any litigation
involving the Employer.
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7. RELEASES OF LIABILITY.
7.1 In consideration of the promises and covenants contained
in this Agreement, Employer and Employee agree to the following releases.
7.2 SPECIFIC RELEASE OF AGE DISCRIMINATION CLAIM.
7.2.a. AGE DISCRIMINATION IN EMPLOYMENT ACT. Employee
represents that he understands and acknowledges that the Age Discrimination in
Employment Act, provides him the right to bring a claim against Employer if the
Employee believes that he has been discriminated against on the basis of age.
Employee expressly warrants that he will not file any claim or action against
Employer, its officers, directors, shareholders, agents, employees or any entity
or employee associated with or employed by Employer based on any alleged
violations of the Age Discrimination in Employment Act arising prior to the date
he executes this Agreement. Employee hereby waives any right to assert a claim
for relief under this Act, including but not limited to, back pay, attorneys'
fees, damages, reinstatement or injunctive relief.
7.2.b. OLDER WORKERS BENEFIT PROTECTION ACT. Pursuant
to the terms of the Older Workers' Benefit Protection Act (OWBPA), Employee
acknowledges that he is waiving any claims he may have under the Age
Discrimination in Employment Act arising prior to the date he executes this
agreement. Employee acknowledges that he has had twenty-one (21) days in which
to consider the terms of this Agreement. Employee acknowledges that, by the
terms of this Agreement, Employee has been advised in writing that the Employee
should consult with an attorney regarding the terms and conditions of this
Agreement. Employee further acknowledges that, by the terms of this Agreement,
he has been advised that following execution of this Agreement, Employee has
seven (7) days in which he may revoke this Agreement and that this Agreement
does not become effective until the seventh day following execution of the
Agreement. The date, seven (7) days following the execution of the Agreement,
shall be the effective date of this Agreement. Employee further acknowledges
that he has consulted with an attorney and is fully aware of the rights and
claims being released by his execution of this Agreement.
7.3 SPECIFIC RELEASE OF STATUTORY RIGHTS CLAIMS. Employee
understands and acknowledges that Title VII of the Civil Rights Act of 1964 as
amended, the Civil Rights Act of 1991, the Americans With Disabilities Act, the
Vietnam Era Veterans Readjustments Assistance Act of 1974, the California Family
Rights Act of 1991, the Federal Family and Medical Leave Act of 1993, and the
California Fair Employment and Housing Act, as amended, and applicable
provisions of California's Labor Code (including, but not limited to, the
Worker's Compensation and Insurance provisions contained in sections 3200 ET.
SEQ.) provide the right to an employee to bring charges, claims or complaints
against an employer if the employee believes he has been discriminated against
on a number of bases, including race, ancestry, color, religion, sex, marital
status, national
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origin, age, status as a veteran of the Vietnam era, request or need for family
or medical leave, physical or mental disability, medical condition, or sexual
preference. Employee, with full understanding of the rights afforded him under
these federal and state laws, agrees that he will not file, or cause to be filed
against Employer, any charges, complaints, or actions based on any alleged
violation of these federal and state laws, including California's Worker's
Compensation laws, or any successor or replacement federal or state laws.
Employee hereby waives any right to assert a claim for relief available under
these federal and state laws including, but not limited to, back pay, attorneys'
fees, damages, reinstatement, or injunctive relief, which Employee may otherwise
recover based on any alleged violation of these federal and state laws, or any
successor or replacement federal or state laws.
7.4 GENERAL RELEASE. Excepting the obligations that are
expressly set forth in this Agreement, Employee shall and hereby does release
and forever discharge Employer, and Employer's predecessors, successors, heirs,
assigns, executors, administrators, agents, employees, representatives,
attorneys, affiliates, subsidiaries, and any and all past or present officers,
directors and shareholders of Employer, and all of them, as well as any and all
persons acting or allegedly acting by, under, through or in concert with any of
them, against any and all claims, damages, actions, causes of action,
liabilities, judgments, liens, contracts, agreements, rights, debts, suits,
obligations, promises, acts, costs and expenses (including, but not limited to,
attorneys' fees), damages and charges of whatsoever nature, whether known or
unknown, suspected or unsuspected, foreseen or unforeseen, fixed or contingent,
or ever filed or prosecuted (hereinafter, collectively referred to as "Claims")
which Employee may now have, or claims to have, or any time heretofore had, or
claimed to have had, against Employer, or any other claim, as a result of things
undertaken, said, stated, done or admitted to be done up to and including the
date of this Agreement.
7.5 WAIVER OF UNKNOWN AND UNANTICIPATED CLAIMS. It is
understood and agreed that the releases as referred to herein are full and final
releases by Employee of Employer, and that such full and final releases include,
without limitation, all unknown and unanticipated claims, injuries, debts, or
damages, as well as those now known or disclosed. With respect to any claims by
Employee against Employer, Employee expressly waives the provisions of
California Civil Code section 1542 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."
In that connection, Employee realizes and acknowledges that one or more of the
Claims may include losses sustained by Employee on account of Employer, that are
presently unknown or unsuspected, and that such losses as were sustained may
give rise to additional
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losses and expenses in the future which are not now anticipated. Nevertheless,
Employee acknowledges that this release has been negotiated and agreed upon and
that in consideration for the rights and benefits under this Agreement, Employee
intends and hereby does release, acquit and forever discharge Employer, and
Employer's predecessors, successors, heirs, assigns, executors, administrators,
agents, employees, representatives, attorneys, affiliates, subsidiaries, and any
and all past or present officers, directors and shareholders of Employer, and
all of them, as well as any and all persons acting or allegedly acting by,
under, through or in concert with any of them, as set forth above, from any and
all Claims, including those that are unknown, unsuspected or unforeseen or that
are presently unknown and unanticipated.
8. CONFIDENTIALITY OF EMPLOYER'S PROPRIETARY INFORMATION. Employee
acknowledges that by reason of his position with Employer, he has been given
access to confidential, proprietary information, trade secrets or materials
respecting Employer's business affairs. Such confidential information includes,
but is not limited to, Employer's business strategies, financial results,
contractual agreements between Employer and other individuals or entities,
strategies and ideas, compilation of information and records which are owned by
Employer and are regularly used in operation of Employer's business, customer
lists, borrower or depositor lists, loan information, policy manuals, board of
directors or committee meeting minutes and attachments, procedures, written
descriptions, processes, research projects, protocols or other tangible items
and documentation, including computer programs or computer software, reports and
marketing information. Employee represents that he has held all such information
confidential and will continue to do so. Employee represents and agrees that he
shall not disclose any such confidential information to any others, or take or
use for Employee's own purposes, or the purposes of any others. Employee further
represents that all files, records, documents, lists, policy manuals, board of
directors or committee meeting minutes and attachments, equipment, inventions,
computer programs, research projects, protocols, processes and similar items
relating to the business of Employer, whether prepared by Employee or otherwise
coming into Employee's possession, shall remain the exclusive property of
Employer and shall not be removed from the premises of Employer. Employee
further represents that he does not have in his possession any of the
confidential information described in this paragraph and has returned all such
confidential information to Employer. Employee agrees that these restrictions
shall also apply to (i) confidential information belonging to third parties in
the Employer's possession and (ii) confidential information conceived,
originated, discovered or developed by Employee during the term of his
employment.
9. RESOLUTION OF DISPUTES. Any disputes regarding the rights or
obligations of the parties under this Agreement shall be conclusively determined
by binding arbitration. The arbitration shall be conducted as follows:
9.1 BINDING ARBITRATION. Any dispute between the parties shall
be submitted to, and conclusively determined by, binding arbitration in
accordance with this
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paragraph. The provisions of this paragraph shall not preclude any party from
seeking injunctive or other provisional or equitable relief in order to preserve
the status quo of the parties pending resolution of the dispute, and the filing
of an action seeking injunctive or other provisional relief shall not be
construed as a waiver of that party's arbitration rights. The arbitration of any
dispute between the parties to this Agreement shall be governed by the
provisions of the California Arbitration Act (California Code of Civil Procedure
sections 1280 ET SEQ., including the provisions contained in section 1283.05).
9.2 INITIATION OF ARBITRATION. In the case of any dispute
between the parties to this Agreement, either party shall have the right to
initiate the binding arbitration process provided for in this paragraph by
serving upon the other party a demand for arbitration. Notwithstanding any other
provision of law, in order to be enforceable a demand for arbitration must be
served within sixty (60) days of the date on which a party discovers, or
reasonably should have discovered, facts giving rise to a dispute as defined
above.
9.3 SELECTION OF ARBITRATORS. Within thirty (30) days of
service of a demand for arbitration by either party to this Agreement, the
parties shall endeavor in good faith to select a single arbitrator. If they fail
to do so within that time period, each party shall have an additional period of
fifteen (15) days in which to appoint an arbitrator and those arbitrators within
fifteen (15) days shall select an additional arbitrator. If any party fails to
appoint an arbitrator or if the arbitrators initially selected by the parties
fail to appoint an additional arbitrator within the time specified herein, any
party may apply to have an arbitrator appointed for the party who has failed to
appoint, or to have the additional arbitrator appointed, by the presiding judge
for the Superior Court, Xxxxxx County, California. If the presiding judge,
acting in his or her personal capacity, is unable or unwilling to appoint the
additional arbitrator, that arbitrator shall be selected in accordance with
California Code of Civil Procedure section 1281.6.
9.4 LOCATION OF ARBITRATION. Any arbitration hearing shall be
conducted in Xxxxxx County, California.
9.5 APPLICABLE LAW. The law applicable to the arbitration of
any dispute shall be the law of the State of California, excluding its conflicts
of law rules.
9.6 ARBITRATION PROCEDURES. Except as otherwise provided in
this paragraph, the arbitration shall be governed by the California Arbitration
Act (Code Civ. Proc. Sections 1280 et seq.). In addition, either party may
choose, at that party's discretion, to request that the arbitrators resolve any
dispositive motions prior to the taking of evidence on the merits of the
dispute. By way of example, such dispositive motions would include, but not be
limited to, those which would entitle a party to summary judgement or summary
adjudication of issues pursuant to Code of Civil Procedure section 437c or
resolution of a special defense as provided for at Code of Civil Procedure
section 597. In the event a party
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to the arbitration requests that the arbitrators resolve a dispositive motion,
the arbitrators shall receive and consider any written or oral arguments
regarding the dispositive motion, and shall receive and consider any evidence
specifically relating thereto, and shall render a decision thereon, before
hearing any evidence on the merits of the dispute. The arbitration shall proceed
with due dispatch and a decision shall be rendered within sixty (60 ) days after
the appointment of the final arbitrator. Such decision shall be in such written
form that a judgment may be entered on it in any court of competent jurisdiction
in the State of California.
9.7 LIMITATION ON SCOPE OF ARBITRATORS' AWARD OR DECISION.
Employer and Employee agree that if the arbitrators find any disputed claim to
be meritorious, the arbitrators shall have the authority to order legal and/or
equitable relief appropriate to the claim.
9.8 COSTS OF ARBITRATION; ATTORNEYS' FEES. While the
arbitration is pending, each party shall bear equally the costs of the
arbitration and shall bear its own attorneys' fees. However, at the conclusion
of the arbitration, Employer and Employee agree that the arbitrators shall award
to the prevailing party the costs, including the costs of the arbitration, and
attorneys' fees incurred by that party in participating in the arbitration
process.
9.9 ACKNOWLEDGMENT OF CONSENT TO ARBITRATION. NOTICE: BY
EXECUTING THIS AGREEMENT YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE
MATTERS INCLUDED IN THE "RESOLUTION OF DISPUTES" PROVISION DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU
MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY
EXECUTING THIS AGREEMENT, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO APPEAL
UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THE "RESOLUTION OF DISPUTES"
PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR EXECUTION OF THIS AGREEMENT INDICATING
YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
BY EXECUTING THIS AGREEMENT, YOU ARE INDICATING THAT YOU HAVE READ AND
UNDERSTOOD THE FOREGOING AND UNDERSTAND THAT BY EXECUTING THIS AGREEMENT YOU
AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THIS ARBITRATION
OF DISPUTES PROVISION TO NEUTRAL ARBITRATION.
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10. NO REHIRE. Employee shall not be subject to rehire as an employee
of Employer, or any of them.
11. CONFIDENTIALITY OF TERMS OF AGREEMENT. In further consideration for
the rights and benefits provided by this Agreement, Employee agrees that all
terms and conditions of this Agreement shall forever remain confidential and
shall not be disclosed to third parties. Notwithstanding this confidentiality
provision, the Employee may disclose the terms and conditions of this Agreement
to their attorneys or accountants for tax reporting purposes or as they may be
compelled pursuant to legal process issued by a court of competent jurisdiction.
Notwithstanding this confidentiality provision, Employer may disclose the terms
and conditions of this Agreement as it deems necessary in its own discretion.
12. ENTIRE AGREEMENT. This document constitutes the entire agreement
between the parties, all oral agreements being merged herein, and supersedes all
prior representations and agreements. There are no representations, agreements,
arrangements, or understandings, oral or written, between or among the parties
relating to the subject matter of this Agreement that are not fully expressed
herein.
13. WAIVER. Any of the terms or conditions of this Agreement may be
waived at any time by the party entitled to the benefit thereof, but no such
waiver shall affect or impair the right of the waiving party to require
observance, performance or satisfaction either of that term or condition as it
applies on a subsequent occasion or of any other term or condition hereof.
14. AMENDMENT. The provisions of this Agreement may be modified or
amended at any time by agreement of the parties. Any such amendment or
modification as hereinafter may be made, shall be ineffective to modify this
Agreement in any respect unless in writing and signed by the party or parties
against whom enforcement of the modification or amendment is sought.
15. REPRESENTATION BY COUNSEL. This Agreement has been carefully read
by the parties and the contents hereof are known and understood by all parties.
The parties have each received independent legal advice from attorneys of their
choice with respect to the preparation, review and advisability of executing
this Agreement. Prior to the execution of this Agreement by each party, the
parties' attorneys reviewed the Agreement, and the parties acknowledge that they
have executed this Agreement after independent investigation and without fraud,
duress or undue influence.
16. NO ADMISSIONS. The purpose of this Agreement is to settle claims
which are denied and are contested. The parties enter into this Agreement with
the costs and risks
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of litigating and appealing the Action in mind. Nothing contained in this
Agreement shall be deemed as an admission of any kind by Employer.
17. SEVERABILITY. If any provision of this Agreement is adjudicated by
a court of competent jurisdiction to be invalid or unenforceable, the remainder
of the Agreement which can be given full force and effect without the invalid
provision shall continue in full force and effect and shall in no way be
impaired or invalidated.
18. ATTORNEYS' FEES; PREJUDGMENT INTEREST. If the services of an
attorney are required by any party to secure the performance of this Agreement
or otherwise upon the breach or default of another party to this Agreement, or
if any judicial remedy or arbitration is necessary to enforce or interpret any
provision of this Agreement or the rights and duties of any person in relation
thereto, the prevailing party shall be entitled to reasonable attorneys' fees,
costs and other expenses, in addition to any other relief to which such party
may be entitled. Any award of damages following judicial remedy or arbitration
as a result of the breach of this Agreement or any of its provisions shall
include an award of prejudgment interest from the date of the breach at the
maximum amount of interest allowed by law.
19. SUCCESSION. Subject to the provisions otherwise contained in this
Agreement, this Agreement shall inure to the benefit of, and be binding upon,
the successors and assigns of each of the respective parties hereto.
20. GOVERNING LAW AND CONSENT TO JURISDICTION. The rights and
obligations of the parties, and the interpretation and performance of this
Agreement, shall be governed by the laws of the State of California, excluding
its conflict of law rules. To the maximum extent permitted by law, the parties
agree that all actions or proceedings arising in connection with this Agreement
shall be tried and determined in the Superior court of the State of California,
in and for the County of Xxxxxx.
21. NOTICES. Any notice under this Agreement shall be in writing, and
any written notice or other document shall be deemed to have been duly given (i)
on the date of personal service on the parties, (ii) on the third business day
after mailing, if the document is mailed by registered or certified mail, (iii)
one day after being sent by professional or overnight courier or messenger
service guaranteeing one-day delivery, with receipt confirmed by the courier, or
(iv) on the date of transmission if sent by telegram, telex, telecopy or other
means of electronic transmission resulting in written copies, with receipt
confirmed. Failure to give notice in accordance with any of the foregoing
methods shall not defeat the effectiveness of notice actually received by the
addressee.
22. CAPTIONS. All paragraph captions are for reference only and should
not be considered in construing this Agreement.
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23. NON-ASSIGNABILITY. This Agreement shall not be assigned by any
party without the prior written consent of the other parties. Any assignment
contrary to the provisions of this Agreement shall be deemed a default under the
Agreement, allowing the non-defaulting parties to exercise all remedies
available under law.
24. COUNTERPARTS. The Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one-in-the-same document.
25. BANKING REGULATORY AGENCIES. The obligations and rights of the
parties hereunder are expressly conditioned upon the approval or non-disapproval
of (i) this Agreement and/or (ii) Employee, in the event such approvals are
required, by those banking regulatory agencies which have jurisdiction over
Employer.
Dated:
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EMPLOYEE
CALIFORNIA INDEPENDENT BANCORP
Dated: By:
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Its:
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FEATHER RIVER STATE BANK
Dated: By:
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Its:
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