EMPLOYMENT AGREEMENT
THIS AGREEMENT, effective as of January 1, 1998, is entered into by and
between Union Bank of California, N.A., a National Banking Association (the
"Bank"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), an individual.
WHEREAS, ▇▇. ▇▇▇▇▇▇ is currently employed by the Bank as Vice Chairman and
Group Head, Commercial Financial Services Group ("Vice Chairman");
WHEREAS, ▇▇. ▇▇▇▇▇▇ has been designated a policy making officer of the Bank
and UnionBanCal Corporation ("UNBC") and a Director on the Board of Directors of
UNBC (the "Board"), the Bank and various subsidiaries and affiliates of the Bank
and UNBC; and
WHEREAS, the parties wish to terminate and supersede the existing terms and
conditions of ▇▇. ▇▇▇▇▇▇'▇ employment with the Bank; and
WHEREAS, the Bank desires to continue to secure the services of ▇▇. ▇▇▇▇▇▇
and ▇▇. ▇▇▇▇▇▇ desires to perform services for the Bank on the terms and
conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the foregoing and of the material
promises and conditions contained in this Agreement, the parties agree as
follows:
1. REPRESENTATIONS AND WARRANTIES.
The Bank represents that it is fully authorized to enter into this
Agreement. ▇▇. ▇▇▇▇▇▇ warrants that he is under no employment contract, bond,
confidentiality agreement, or any other obligation which would violate or be in
conflict with the terms and conditions of this Agreement or encumber his
performance of duties assigned to him by the Bank. ▇▇. ▇▇▇▇▇▇ further warrants
that he has not signed or committed to any employment or consultant duties or
other obligations which would divert his attention from the duties assigned to
him by the Bank under this Agreement. The parties do not intend to include
within the meaning of this paragraph ▇▇. ▇▇▇▇▇▇'▇ service at the request of the
Bank's Chief Executive Officer, or with the concurrence of the Bank's Chief
Executive Officer, for nonprofit, charitable, or trade associations or on the
boards of directors or other governing bodies of business enterprises unrelated
to the Bank and not in a business competitive with a business of the Bank.
2. EMPLOYMENT AND DUTIES.
The Bank will continue to employ ▇▇. ▇▇▇▇▇▇ as a Vice Chairman and, during
such employment, will continue to nominate him as a Director of UNBC.
▇▇. ▇▇▇▇▇▇ hereby accepts such employment with the Bank. ▇▇. ▇▇▇▇▇▇ shall
devote his time, ability, attention, energy, knowledge and skill solely and
exclusively to performing all reasonable duties as Vice Chairman of the Bank as
assigned to him by the Bank's Chief Executive Officer or the Board.
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3. COMPENSATION.
a. BASE SALARY. In consideration for ▇▇. ▇▇▇▇▇▇'▇ services to the Bank
during the time period in which this Agreement is effective, ▇▇. ▇▇▇▇▇▇ is
receiving a base salary of Four Hundred Fifteen Thousand Dollars ($415,000.00)
per annum to be paid in equal installments as per the Bank's salary
administration program every two (2) weeks, and subject to annual review and
increases at the discretion of the Executive Compensation and Benefits Committee
of the Board, the Board or any other committee constituted by the Board for this
purpose (as applicable, the "Committee"). Annual base salary shall be
competitive with the annual base salaries for comparable executive positions at
banks of similar size and focus, as determined at the discretion of the
Committee.
b. ADDITIONAL RESTRICTED STOCK. ▇▇. ▇▇▇▇▇▇ shall receive an award of six
thousand (6,000) shares of restricted stock on June 1, 1998, provided that he is
employed by the Bank on that date and subject to the vesting requirements next
described. Provided ▇▇. ▇▇▇▇▇▇ is employed by the Bank, UNBC or one of their
subsidiaries on the applicable vesting date, 25% of the award (1500 shares)
shall vest on January 2, 1999, 25% of the award (1500 shares) shall vest on
January 2, 2000, 25% (1500 shares) shall vest on January 2, 2001, and 25% (1500
shares) shall vest on January 2, 2002. ▇▇. ▇▇▇▇▇▇ shall forfeit any portion of
the award that is not vested on the date he ceases to be employed by the Bank,
UNBC and their subsidiaries, unless his termination of employment arises under
circumstances described in subparagraphs 6(a), 6(b), 6(d) or 6(f), in which case
▇▇. ▇▇▇▇▇▇ shall become 100% vested at the time of termination if not already so
vested.
4. ADDITIONAL BENEFITS.
During his employment under this Agreement:
a. BONUS. ▇▇. ▇▇▇▇▇▇ shall be entitled to participate in the Bank's
Senior Management Bonus Plan, or its successor, subject to the eligibility
requirements and other terms and conditions of such Plan and the determinations
of the administrator of such Plan. ▇▇. ▇▇▇▇▇▇'▇ target bonus under the Senior
Management Bonus Plan shall be fifty percent (50%) of base salary, subject to
annual review and increases or decreases at the discretion of the Committee,
based on the median annual bonus targets for comparable executive positions at
banks of similar size and focus (as determined at the discretion of the
Committee).
b. LONG TERM INCENTIVES. ▇▇. ▇▇▇▇▇▇ shall be eligible for long term
incentive awards available to policy making officers. Awards may consist of one
or more types of long-term incentives, including the grant of stock options and
restricted stock under the UNBC Management Stock Option Plan, or its successor,
and the award of performance shares under the UNBC Performance Share Plan, or
its successor. ▇▇. ▇▇▇▇▇▇'▇ target award shall be valued at one hundred percent
(100%) of base salary. Notwithstanding the preceding sentence, determinations
of the amount of any award to ▇▇. ▇▇▇▇▇▇ shall be made at the discretion of the
Committee, subject to annual review and increases or decreases, based on the
median long-term incentive targets for comparable executive positions at banks
of similar size and focus (as determined at the discretion of the Committee).
c. RETIREMENT AND 401(k) PLAN. ▇▇. ▇▇▇▇▇▇ shall be entitled to
participate in the
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Bank retirement and 401(k) plans that are now or hereafter will be in effect,
subject to the eligibility requirements and other terms and conditions of
such plans and the determinations of the administrator of such plans.
d. SUPPLEMENTAL RETIREMENT BENEFITS. Subject to paragraph 6, ▇▇. ▇▇▇▇▇▇
shall be entitled to receive an overall pension benefit from the Bank,
calculated under the terms of the Union Bank of California Retirement Plan (the
"Retirement Plan"), without regard to the limits of Code sections 401(a)(17) and
415, and crediting ▇▇. ▇▇▇▇▇▇ with an additional five (5) years of "credited
service." ▇▇. ▇▇▇▇▇▇ shall be a participant under the Bank's Supplemental
Executive Retirement Plan (the "SERP"), such that the portion of ▇▇. ▇▇▇▇▇▇'▇
overall pension benefit payable under this Agreement shall be a net benefit (the
"Net Benefit"). Such Net Benefit shall be an amount determined as described in
the first sentence of this subparagraph less the amount payable from the
Retirement Plan and from the SERP. The Net Benefit payable under this Agreement
shall be determined as a Normal Retirement Benefit, an Early Retirement Benefit
or a Deferred Retirement Benefit as applicable, within the meaning of the SERP,
employing the same offset methodology and all other terms and conditions as
described under the SERP. As such, the Net Benefit shall be paid in the same
form and at the same time as the benefit payable under the SERP. The Net
Benefit obligation of this subparagraph 4(d) shall be an unfunded and unsecured
obligation of the Bank, as to which ▇▇. ▇▇▇▇▇▇ shall have no rights other than
those of a general creditor of the Bank.
e. INSURANCE AND WELFARE PLANS. ▇▇. ▇▇▇▇▇▇ and his eligible dependents
shall be eligible to receive such other benefits or rights as may be provided
under any employee benefit plan provided by the Bank that is now or hereafter
will be in effect (including participation in life, medical, disability, dental
and vision insurance plans), subject to eligibility requirements and other terms
and conditions of such plans and the determinations of administrators of such
plans.
f. OTHER BENEFITS. The Bank shall provide other benefits such as a car
allowance, luncheon and country club dues and assessments, and other perquisites
as determined by the Committee for similarly situated executives.
g. BUSINESS EXPENSES. ▇▇. ▇▇▇▇▇▇ shall be entitled to reimbursement by
the Bank for such customary, ordinary and necessary business expenses as are
incurred by him in the performance of his duties and activities associated with
promoting or maintaining the business of the Bank. All expenses as described in
this subparagraph 4(g) will be reimbursed only upon presentation by ▇▇. ▇▇▇▇▇▇
of such documentation in accordance with Bank policy and as may be reasonably
necessary to substantiate that all such expenses were incurred in the
performance of his duties.
h. VACATION AND SICK LEAVE. ▇▇. ▇▇▇▇▇▇ shall be entitled to earn
(i) four (4) weeks' paid vacation each year of employment under this Agreement
and (ii) sick leave on the same basis as other Bank employees and subject to all
accrual or accumulated maximum entitlement limitations which currently or may
hereafter exist under the Bank's vacation and sick leave policy.
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5. OUTSIDE ACTIVITIES AND NON-COMPETITION.
During the term of this Agreement, and subject to paragraph 1, ▇▇. ▇▇▇▇▇▇
shall devote his time, ability, attention, energy, knowledge and skill to the
business of the Bank. During the term of this Agreement, ▇▇. ▇▇▇▇▇▇ shall not,
directly or indirectly, either as an employee, employer, consultant, agent,
principal, partner, shareholder, corporate officer, director, or in any other
capacity, engage or assist any third party in engaging in any business
competitive with the business of the Bank, UNBC or their subsidiaries without
the written approval of the Bank's Chief Executive Officer. Investments in
publicly traded corporations through brokerage accounts or in mutual funds, or
depositor/borrower relationships with other financial institutions are not
intended to be covered by this paragraph. Following his employment with the
Bank, ▇▇. ▇▇▇▇▇▇ shall not engage in unfair competition with the Bank or aid
others in any unfair competition with the Bank, unfair competition having the
meaning ascribed in the "Competition and Business Promotion" section of the
Bank's April 1996 revision of the Business Standards of Conduct (except that the
object of the prohibition shall be read as the Bank rather than a competitor).
Following his employment with the Bank, ▇▇. ▇▇▇▇▇▇ shall not in any way breach
the confidence that the Bank has placed in him or misappropriate any proprietary
information of the Bank, as such prohibitions are described in the Bank's
April 1996 revision of the Business Standards of Conduct.
6. TERMINATION OF EMPLOYMENT.
This Agreement shall terminate as follows:
a. BY DEATH. This Agreement shall be terminated upon the death of
▇▇. ▇▇▇▇▇▇. The Bank's total liability to ▇▇. ▇▇▇▇▇▇ in the event of
termination of ▇▇. ▇▇▇▇▇▇'▇ employment under this subparagraph shall be limited
to the payment (on his behalf) of ▇▇. ▇▇▇▇▇▇'▇ salary and benefits as set forth
in paragraphs 3 and 4 of this Agreement through the effective date of
termination.
b. BY DISABILITY. If, in the sole opinion of the Bank's Chief Executive
Officer, governed by the exercise of good faith and supported by competent
medical opinion, ▇▇. ▇▇▇▇▇▇ is prevented from properly performing his duties
hereunder by reason of any physical or mental incapacity, for a period of more
than ninety (90) days in the aggregate in any twelve (12) month period, then, to
the extent permitted by law, his employment with the Bank shall terminate. The
Bank's total liability to ▇▇. ▇▇▇▇▇▇ in the event of termination of ▇▇. ▇▇▇▇▇▇'▇
employment under this subparagraph shall be limited to the payment of
▇▇. ▇▇▇▇▇▇'▇ salary and benefits as set forth in paragraphs 3 and 4 of this
Agreement through the effective date of termination. In calculating the Net
Benefit payable to ▇▇. ▇▇▇▇▇▇ pursuant to subparagraph 4(d), ▇▇. ▇▇▇▇▇▇ will
continue to accrue credited service in the manner described in Article VI of the
Retirement Plan (or a successor provision). Nothing in this paragraph 6 is
intended to preclude ▇▇. ▇▇▇▇▇▇ from exercising any rights he may have under the
Bank's Short Term Disability Plan or Long Term Disability Plan, in accordance
with the eligibility requirements and other terms and conditions of those
respective plans, or their respective successors.
c. FOR CAUSE. The Bank reserves the right to terminate this Agreement
immediately, at any time, if, in the opinion of the Bank's Chief Executive
Officer: ▇▇. ▇▇▇▇▇▇
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materially and/or habitually breaches or neglects the duties which he is
required to perform under the terms of this Agreement; commits any material
act of dishonesty, fraud, misrepresentation, or other act which would violate
the Bank's Business Standards of Conduct; is guilty of gross carelessness or
misconduct; fails to obey the lawful direction of the Bank's Chief Executive
Officer or the Board; or acts in any way that has a direct, substantial and
adverse effect on the Bank's reputation. The Bank's total liability to ▇▇.
▇▇▇▇▇▇ in the event of termination of ▇▇. ▇▇▇▇▇▇'▇ employment under this
subparagraph shall be limited to the payment of ▇▇. ▇▇▇▇▇▇'▇ salary and
benefits as set forth in paragraphs 3 and 4 of this Agreement through the
effective date of termination.
d. WITHOUT CAUSE. The Bank reserves the right to terminate this
Agreement without cause, for any reason and at any time, by written notice to
▇▇. ▇▇▇▇▇▇ from the Bank's Chief Executive Officer. ▇▇. ▇▇▇▇▇▇ hereby agrees
that the Bank may dismiss him under this subparagraph 6(d) without regard to
(i) any general or specific policies (whether written or oral) of the Bank
relating to the employment or termination of its employees, or (ii) any
statements made to ▇▇. ▇▇▇▇▇▇, whether made orally or contained in any document,
pertaining to ▇▇. ▇▇▇▇▇▇'▇ relationship with the Bank. In the event of
termination under this subparagraph 6(d), and subject to the conditions set
forth herein, ▇▇. ▇▇▇▇▇▇ shall be entitled to receive the payments described in
(i) and (ii) below.
(i) If ▇▇. ▇▇▇▇▇▇ has not yet attained age 65 at the time of his
termination of employment, and provided ▇▇. ▇▇▇▇▇▇ has, at the time of his
termination of employment, previously executed the "General and Special Release"
(attached hereto as Exhibit A), then in consideration for such Release, the Bank
will provide ▇▇. ▇▇▇▇▇▇ with:
(A) The greater of (I) two years of separation pay payable as
salary continuation on a payroll by payroll basis, in an amount equal
to ▇▇. ▇▇▇▇▇▇'▇ base salary at the time of his termination, plus a
prorated bonus amount each payroll period equal to the average of
▇▇. ▇▇▇▇▇▇'▇ annual bonus (excluding any amount that represents an
award of long term incentive by the Bank) for the three most recent
bonus determination years divided by the number of payroll periods in
the year, or (II) the salary continuation amount payable under the
Bank's then existing separation pay plan; and
(B) Benefits (other than salary continuation) payable to
participants at or above the level of Executive Vice Presidents for
the salary continuation period under the Bank's Separation Pay Plan in
effect on the date of this Agreement, or, if better, under the Bank's
separation pay plan in effect at the time of his termination of
employment. A true and correct copy of the Plan as in effect on the
date of this Agreement is attached hereto as Exhibit B; and
(C) Full and immediate vesting, upon ▇▇. ▇▇▇▇▇▇'▇ termination of
employment, in the target award amount under his outstanding grant(s)
of performance shares under the UNBC Performance Share Plan, and
payment of such vested shares within 120 days following his
termination of employment (without giving effect to any deferral
election that would have applied had the shares become an earned
award), such payment to be made in cash equal to the number of vested
shares times the average month-end closing price of UNBC
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common stock (as published in the Western Edition of the Wall Street
Journal) for the six months immediately preceding ▇▇. ▇▇▇▇▇▇'▇ date of
termination of employment; and
(ii) The Bank will provide ▇▇. ▇▇▇▇▇▇ with salary and benefits as set
forth in paragraphs 3 and 4 of this Agreement through the effective date of
termination.
A termination of this Agreement on account of ▇▇. ▇▇▇▇▇▇'▇ disability shall be
governed by subparagraph 6(b) and not this subparagraph 6(d). In addition, in
the event ▇▇. ▇▇▇▇▇▇ dies while receiving salary continuation benefits under
subparagraph 6(d)(i)(A) above, then ▇▇. ▇▇▇▇▇▇ shall have the remaining salary
continuation, if any, paid to his Designated Beneficiary under Exhibit C
attached hereto.
e. BY ▇▇. ▇▇▇▇▇▇ WITHOUT CAUSE. ▇▇. ▇▇▇▇▇▇ reserves the right to
terminate this Agreement for any reason (other than the reason set forth in
subparagraph 6(f)) upon reasonable written notice to the Bank. The Bank's total
liability to ▇▇. ▇▇▇▇▇▇ in the event of termination of ▇▇. ▇▇▇▇▇▇'▇ employment
under this subparagraph shall be limited to the payment of ▇▇. ▇▇▇▇▇▇'▇ salary
and benefits as set forth in paragraphs 3 and 4 of this Agreement through the
effective date of termination.
f. BY ▇▇. ▇▇▇▇▇▇ FOR CAUSE. Subject to the further conditions next
described, ▇▇. ▇▇▇▇▇▇ may terminate this Agreement by giving sixty (60) days'
written notice to the Bank if he has incurred a material reduction of his
duties, title or responsibility (including ▇▇. ▇▇▇▇▇▇ no longer serving in the
capacity or under the title of Vice Chairman of the Bank, the Bank's failure to
continue to nominate ▇▇. ▇▇▇▇▇▇ as a Director of UNBC, or ▇▇. ▇▇▇▇▇▇'▇ position
ceasing to be one directly reporting to the Bank's Chief Executive Officer), a
reduction in his annual base salary or a reduction in his overall compensation
package below the median package for comparable executive positions at banks of
similar size and focus (this peer group to be determined at the discretion of
the Committee). In order to elect to terminate this Agreement pursuant to this
subparagraph 6(f), ▇▇. ▇▇▇▇▇▇ must submit the written notice to the Bank within
sixty (60) days of the reduction. ▇▇. ▇▇▇▇▇▇ shall not be entitled to elect to
terminate this Agreement pursuant to this subparagraph 6(f) if prior to
▇▇. ▇▇▇▇▇▇'▇ termination date the Bank corrects the deficiency upon which
▇▇. ▇▇▇▇▇▇'▇ resignation election is based. In the event that ▇▇. ▇▇▇▇▇▇ is
entitled to and elects to terminate this Agreement pursuant to this
subparagraph 6(f), (i) he shall be entitled to receive salary and benefits as
set forth in paragraphs 3 and 4 of this Agreement through the effective date of
termination, and (ii) if he is has not yet attained age 65 at the time of his
termination of employment and further has, at the time of his termination of
employment, previously executed the "General and Special Release" (attached
hereto as Exhibit A), then in consideration for such Release, the Bank will
provide ▇▇. ▇▇▇▇▇▇ with the salary continuation and benefits set forth in
subparagraphs 6(d)(i)(A), (B) and (C). In the event ▇▇. ▇▇▇▇▇▇ dies while
receiving salary continuation benefits described in subparagraph 6(d)(i)(A)
above, then ▇▇. ▇▇▇▇▇▇ shall have the remaining salary continuation, if any,
paid to his Designated Beneficiary under Exhibit C attached hereto.
g. RESIGNATION OF POSITIONS. Upon termination of employment for any
reason whatsoever, ▇▇. ▇▇▇▇▇▇ shall be deemed to have resigned from all offices
and positions with the Bank, UNBC, and their subsidiaries. ▇▇. ▇▇▇▇▇▇ agrees
that, in connection with his termination under this Agreement, he will sign such
written resignations as required by the
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Bank.
7. PROHIBITION OF ASSIGNMENT.
This Agreement is personal to ▇▇. ▇▇▇▇▇▇ and he may not assign or delegate
any of his rights or obligations hereunder without first obtaining the written
consent of the Bank.
8. UNBC OR BANK SUCCESSOR.
For all purposes under this Agreement, the term "UNBC" shall include any
successor to UNBC's business and/or assets, by purchase, merger, consolidation,
reorganization, liquidation or otherwise. For all purposes under this
Agreement, the term "Bank" shall include any successor to the Bank's business
and/or assets, by purchase, merger, consolidation, reorganization, liquidation
or otherwise, and, in such an event, for all purposes under this Agreement, the
term "UNBC" also shall mean the U.S. parent company to such successor (and, if
there is no such U.S. parent company the successor itself). This Agreement
shall inure to the benefit of and be binding upon any such successor to UNBC and
the Bank to which ▇▇. ▇▇▇▇▇▇'▇ employment is transferred.
9. ARBITRATION.
Any controversy between the Bank, UNBC or their parent companies,
subsidiaries and affiliates and ▇▇. ▇▇▇▇▇▇ or between any employee of the Bank,
UNBC or their parent companies, subsidiaries and affiliates and ▇▇. ▇▇▇▇▇▇,
including, but not limited to, any controversy arising out of ▇▇. ▇▇▇▇▇▇'▇
employment or the termination thereof, involving the construction or application
of any of the terms, provisions or conditions of this Agreement, or otherwise
arising out of or relating to this Agreement and any controversy arising out of
or relating to Exhibit A to this Agreement (the "General and Special Release")
or involving a claim of race, sex, religious, age, disability, veteran status,
sexual orientation or national origin discrimination, shall be settled by
arbitration in accordance with the then current employment dispute resolution
rules of the American Arbitration Association determined by the Committee to
most closely resemble the California Employment Dispute Resolution Rules in
effect on January 1, 1998, and judgment on the award rendered by the
arbitrator(s) may be entered by any court having jurisdiction thereof.
Reasonable limited discovery will be permitted in the form of the right of each
party to take the deposition of one individual and any expert witness designated
by the other party. Each party shall also have the right to make requests for
discovery of relevant documents to the other party. Additional discovery may be
had only where the arbitrator so orders, upon a showing of substantial need.
The Bank and ▇▇. ▇▇▇▇▇▇ each shall bear their own costs and legal fees
associated with the arbitration, except that the arbitrator shall have the right
in his discretion to award reasonable legal fees to the prevailing party in the
arbitration. Further, the Bank shall bear the cost of the arbitrator (including
the costs of establishing a facility for and otherwise administering the
arbitration). The location of the arbitration shall be in San Francisco,
California, and the arbitration shall be conducted so as to result in the
rendering of the arbitrator's decision within ninety (90) days after the
original demand for arbitration.
In the event of a breach by ▇▇. ▇▇▇▇▇▇ of any of the covenants contained in
paragraph 5 of this Agreement, it is recognized that in addition to any other
remedy available to it, the Bank
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shall be entitled to institute or prosecute proceedings in any court of
competent jurisdiction, either in law or in equity, to obtain damages for any
breach of this Agreement or to ▇▇▇ for specific performance, or an injunction
against performance of any acts, or to seek any other available remedy.
This paragraph 9 of this Agreement and the obligations provided for herein
shall survive the termination of this Agreement and remain in full force and
effect following the termination of ▇▇. ▇▇▇▇▇▇'▇ employment with the Bank.
10. LIMITATION ON PAYMENTS.
a. BASIC RULE. In the event ▇▇. ▇▇▇▇▇▇ becomes entitled to payments
under this Agreement in connection with his termination of employment at a time
when the Bank's Auditors determine that the payments result in "excess parachute
payments" under section 280G of the Internal Revenue Code (the "Code"), then
instead of the amounts payable under this Agreement, ▇▇. ▇▇▇▇▇▇ shall receive
aggregate payments equal to the Reduced Amount, if such Reduced Amount would
result in net after-tax payments to ▇▇. ▇▇▇▇▇▇ that are greater than the net
after-tax payments he would have received without regard to this paragraph. For
purposes of this paragraph 10, the "Reduced Amount" shall be the amount,
expressed as a present value, that maximizes the aggregate present value of the
payments without causing any payment to be nondeductible by the Bank under
section 280G of the Code. All calculations required by this paragraph 10 shall
be performed by the Bank's independent auditors retained most recently prior to
the transaction implicating section 280G of the Code (the "Auditors"), based on
information supplied by the Bank and ▇▇. ▇▇▇▇▇▇, and shall be binding on the
Bank and ▇▇. ▇▇▇▇▇▇. All fees and expenses of the Auditors shall be paid by the
Bank.
b. REDUCTIONS. If the amount of the aggregate payments to ▇▇. ▇▇▇▇▇▇
must be reduced under this paragraph 10, then ▇▇. ▇▇▇▇▇▇ shall direct in which
order the payments are to be reduced, but no change in the timing of any payment
shall be made without the Bank's consent. As a result of uncertainty in the
application of sections 280G and 4999 of the Code at the time of an initial
determination by the Auditors hereunder, it is possible that a payment will have
been made by the Bank that should not have been made (an "Overpayment") or that
an additional payment that will not have been made by the Bank could have been
made (an "Underpayment"). In the event that the Auditors, based upon the
assertion of a deficiency by the Internal Revenue Service against the Bank or
▇▇. ▇▇▇▇▇▇ that the Auditors believe has a high probability of success,
determine that an Overpayment has been made, such Overpayment shall be treated
for all purposes as a loan to ▇▇. ▇▇▇▇▇▇ that he shall repay to the Bank,
together with interest at the applicable federal rate specified in section
7872(f)(2) of the Code; provided, however, that no amount shall be payable by
▇▇. ▇▇▇▇▇▇ to the Bank if and to the extent that such payment would not reduce
the amount that is nondeductible under section 280G of the Code or is subject to
an excise tax under section 4999 of the Code. In the event that the Auditors
determine that an Underpayment has occurred, such Underpayment shall promptly be
paid or transferred by the Bank to, or for the benefit of, ▇▇. ▇▇▇▇▇▇, together
with interest at the applicable federal rate specified in section 7872(f)(2) of
the Code.
11. MODIFICATION.
Any modification of this Agreement will be effective only if it is in
writing and signed
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by the parties to be bound thereby.
12. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the Bank and
▇▇. ▇▇▇▇▇▇ pertaining to the subject matter hereof, and supersedes all prior or
contemporaneous written or verbal agreements and understandings with ▇▇. ▇▇▇▇▇▇
in connection with the subject matter hereof.
13. GOVERNING LAW.
This Agreement and the rights and obligations hereunder shall be governed
by the laws of California, and the parties to this Agreement specifically
consent to the jurisdiction of the courts of California over any action arising
out of or related to this Agreement.
14. SEVERABILITY.
If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
shall, nevertheless, continue in full force and effect without being impaired or
invalidated in any way.
15. WAIVER.
The parties hereto shall not be deemed to have waived any of their
respective rights under this Agreement unless the waiver is in writing and
signed by such waiving party. No delay in exercising any right shall be a
waiver nor shall a waiver on one occasion operate as a waiver of such right on a
future occasion.
16. NOTICES.
All notices provided for herein shall be in writing and shall be deemed to
have been given when delivered personally, when deposited in the United States
mail, registered or certified, postage prepaid, or when delivered to a messenger
service, addressed as follows:
To the Bank: ▇▇▇▇ ▇▇▇▇▇▇
Executive Vice President
Union Bank of California, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To ▇▇. ▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice Chairman
Union Bank of California, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or at such other addresses as either of said parties may from time to time in
writing appoint.
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17. EXECUTIVE COMPENSATION AND BENEFITS COMMITTEE.
If at the time of a determination under this Agreement no Committee is in
existence, references to the Committee under this Agreement shall be deemed to
be references to the Board.
18. WITHHOLDING TAXES.
The Bank shall withhold and deduct all applicable federal and local taxes,
as required by applicable laws, from any payments made under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized officers or agents.
Dated: _____________ UNION BANK OF CALIFORNIA, N.A.
By ______________________________
▇▇▇▇ ▇▇▇▇▇▇
Executive Vice President
Dated: _____________ _________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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EXHIBIT A
GENERAL AND SPECIAL RELEASE
1. In return for the benefits provided for in subparagraphs 6(d)(i) or
6(f)(ii) of the Employment Agreement entered into as of January 1, 1998 (the
"Agreement"), the adequacy of which as consideration is hereby acknowledged,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (hereinafter, "▇▇. ▇▇▇▇▇▇") hereby fully releases and forever
discharges Union Bank of California, N.A., its parent, affiliated, and
subsidiary corporations, its and their successors and assigns, and the past and
present officers, directors, employees, shareholders, agents and employee
benefit plans of each (hereinafter, collectively the "Bank") from any and all
actions, causes of action, claims, demands, damages, and liabilities of
whatsoever kind or character, in law or in equity, now known or unknown,
suspected or unsuspected, past or present, that he has ever had or currently may
have against them or any of them including, but not limited to, claims of race,
sex, religious, age, disability, veteran status, sexual orientation or national
origin discrimination under Title VII of the Civil Rights Act of 1964, as
amended; the Americans with Disabilities Act of 1990, as amended; the Age
Discrimination in Employment Act, as amended; the California Fair Employment and
Housing Act and any other federal, state or local laws, arising out of or in any
way related to ▇▇. ▇▇▇▇▇▇'▇ employment with the Bank or termination of that
employment. ▇▇. ▇▇▇▇▇▇ further agrees not to institute in any state or federal
court any action or claim of any kind against the Bank. Execution of this
document by ▇▇. ▇▇▇▇▇▇ operates as a complete bar and defense against any and
all current claims of any type that may be made by ▇▇. ▇▇▇▇▇▇ against the Bank,
provided, however, that nothing in this release is intended to affect
▇▇. ▇▇▇▇▇▇'▇ right to seek a remedy in arbitration to resolve any controversy
arising out of the construction or application of the terms, provisions or
conditions of the Agreement.
2. ▇▇. ▇▇▇▇▇▇ and the Bank understand and expressly agree that the
release granted in Paragraph 1 extends to all claims of every nature and kind,
known or unknown, suspected or unsuspected, past or present, which ▇▇. ▇▇▇▇▇▇
may have against the Bank arising from or related to his employment with the
Bank or the termination of that employment and that any and all rights granted
to ▇▇. ▇▇▇▇▇▇ under Section 1542 of the California Civil Code or any analogous
state law, federal law, or regulation are hereby expressly waived. Section 1542
of the California Civil Code 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.
3. ▇▇. ▇▇▇▇▇▇ has read this instrument, has had the opportunity of
consulting with an attorney regarding it, and signs it voluntarily and with the
intention of being bound by it. ▇▇. ▇▇▇▇▇▇ understands that he is waiving
legal rights by signing this agreement.
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4. ▇▇. ▇▇▇▇▇▇ acknowledges that he has been given at least twenty-one
(21) days within which to consider this Release. ▇▇. ▇▇▇▇▇▇ understands that he
may revoke this Release upon written notice to the Bank within seven (7) days
after execution of it and that this Release will not become effective or
enforceable until the eighth (8th) day after its execution.
Dated: _______________ ______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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EXHIBIT C
UNION BANK OF CALIFORNIA, N.A.
BENEFICIARY DESIGNATION
UNDER EMPLOYMENT AGREEMENT
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Social Security Number: ______-____-________
If I die while receiving salary continuation payments under subparagraph 6(d) or
6(f) of the Employment Agreement entered into as of January 1, 1998, then any
payments remaining to be made shall be paid to the person to whom I am married
at the time of my death. IN THE EVENT I HAVE NO SPOUSE AT THE TIME OF MY DEATH,
THEN PAYMENT IS TO BE MADE AS FOLLOWS [CHECK ONE BOX ONLY]:
/ /1 To all of my children who survive me in equal shares. [Please provide
names and addresses below.] The term "children" means natural or legally
adopted children but excludes stepchildren (if not adopted).
/ /2 To my estate.
/ /3 Other [please enter a description, and provide names and addresses, if
necessary]:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
IN THE EVENT NO DESIGNATED BENEFICIARY SURVIVES ME, ANY REMAINING PAYMENTS
SHALL BE MADE TO MY ESTATE.
The names and addresses of my beneficiaries are as follows [please use a
separate sheet if necessary]:
1. Name:_____________________ Relationship:__________________________
Address:_______________________________________________________________
2. Name:_____________________ Relationship:__________________________
Address:_______________________________________________________________
3. Name:_____________________ Relationship:__________________________
Address:_______________________________________________________________
4. Name:_____________________ Relationship:__________________________
Address:_______________________________________________________________
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This beneficiary designation is to take effect on the date when it is
received by the Director of Human Resources of Union Bank of California,
N.A., and it supersedes any prior designations that I may have made under the
above-referenced Employment Agreement.
___________________, 199 __________________________________
[Date] [Signature]
Date of receipt:_____________, 199__.
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