13
EXHIBIT (10.15)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement
("Agreement") is dated as of ______________, 1995, and is
entered into by and between
_________________________________, ("Employee") and First
Interstate Bancorp, a Delaware corporation ("First
Interstate"). This Agreement terminates and supersedes the
Employment Agreement dated ______________, _____ between
First Interstate and Employee and sets forth the terms and
conditions of Employee's continued employment with First
Interstate. Employee and First Interstate hereby agree that
Employee will render services to First Interstate on the
following terms and conditions:
1. Employment. Upon the terms and subject to
the conditions contained herein, during the term of this
Agreement, First Interstate hereby agrees to employ Employee
to provide full-time services for First Interstate. During
the term hereof, Employee agrees to devote his or her best
efforts to the business of First Interstate, and shall
perform his or her duties in a diligent, trustworthy,
business-like manner, all for the purpose of advancing the
business of First Interstate.
2. Duties. The duties of Employee shall be
those duties which can reasonably be expected to be
performed by a person with the title of
____________________________________________________________
__________________________________________________. Except
as provided in paragraph 10 of this Agreement, Employee's
duties may, from time to time, be changed or modified at the
discretion of the Chief Executive Officer or the Compensa-
tion Committee of First Interstate.
3. Salary and Benefits. First Interstate shall,
during the term of this Agreement, pay Employee a base
salary, which shall initially be the salary in effect on the
date of this Agreement. Such salary shall be paid in
semimonthly installments less applicable withholding and
salary reductions. First Interstate may, in its discretion,
periodically increase the base salary and/or grant a bonus
or other compensation or benefits to Employee, during the
term of the Agreement. First Interstate may not, however,
reduce Employee's base salary during the term of this
Agreement. Employee shall be entitled to participate in the
employee benefit programs generally available to employees
of First Interstate.
4. Term of Agreement. This Agreement shall be
effective beginning on the date of this Agreement and shall
continue until either party, in its sole discretion and for
any reason, provides written notice of termination to the
other party. Such termination will be effective no earlier
than the first day of the 14th month following the notice so
that, for example, a notice delivered on September 1, 1994
could terminate this Agreement no earlier than November 1,
1995. Notwithstanding the preceding sentences, and except
as otherwise provided in paragraph 9, this Agreement shall
terminate on the Employee's last day of employment if the
Employee voluntarily terminates for any reason or is
terminated by First Interstate for a reason described in
paragraph 5.
5. Termination. During the term of this Agree-
ment, and except as otherwise provided in paragraph 10 of
this Agreement, the parties agree that First Interstate may
terminate the employment of the Employee only for "Cause" or
for breach of the provisions of paragraph 8 or as set forth
in paragraph 9. Cause for termination shall be limited to
the following: (1) Employee engages in an act of dishonesty
or moral turpitude (including but not limited to conviction
of a felony) which materially injures or damages First
Interstate, (2) Employee willfully fails to substantially
perform his or her duties hereunder and such willful failure
results in demonstrable material injury and damage to First
Interstate, (3) it is determined that Employee has misrepre-
sented or concealed a material fact for the purpose of
securing employment or this Employment Agreement, or (4)
Employee's performance is substantially below the standard
of performance which can reasonably be expected from an
individual occupying Employee's position or Employee
substantially fails to meet performance objectives which
have been previously agreed to between Employee and First
Interstate, such as performance objectives relating to
profit.
6. Remedy for Breach. In the event that First
Interstate breaches this Agreement by terminating the
employment of Employee other than pursuant to paragraph 5,
and provided that Employee executes a release agreement in
the form attached hereto as Exhibit A, First Interstate
agrees to pay to Employee, as damages and not as a penalty
for such breach, a sum of money equal to Employee's monthly
base salary multiplied by 24. Unless First Interstate
determines in its complete discretion to pay such amount
more quickly, damages owed to Employee shall be paid at the
same time and in the same manner as if employment under this
Agreement had continued for 24 months past the date of
breach. By signing the Agreement Employee agrees that the
payments to which Employee may become entitled under this
paragraph are in lieu of any other payments to which Employ-
ee might be entitled and that First Interstate's discharge
of its obligations under this paragraph shall constitute
full satisfaction of any and all claims of any nature
whatsoever that Employee might otherwise possess against
First Interstate and its subsidiaries, except (1) such
claims as are specifically provided for in the terms of any
generally applicable employee benefit or executive
compensation plans evidenced by written agreements or (2)
any claims for personal injuries (other than claims that are
based on or relate to a contention that First Interstate has
wrongfully discharged Employee).
7. Successors. The rights and obligations of
First Interstate under this Agreement shall inure to the
benefit of and shall be binding upon the successors and
assigns of First Interstate.
8. Non-Disclosure of Confidential Information.
Employee agrees that during the term of this Agreement and
thereafter Employee will not disclose any information or
data concerning the business or customers of First Inter-
state that is disclosed to Employee or acquired by Employee
in confidence at any time during the period of his or her
employment. Employee further agrees that he or she will
neither publicly disclose the terms of this Agreement nor
publicly discuss First Interstate in a manner that tends to
portray First Interstate in an unfavorable light. Violation
of these provisions subsequent to the termination of this
Agreement will cause Employee to immediately forfeit his or
her right to any payments under paragraph 6 that have not
yet been paid. Notwithstanding anything contained in
paragraph 14, First Interstate shall have the right to file
a suit to enjoin any action of Employee which would
constitute a breach of this paragraph 8.
9. Illness, Incapacity, or Death. In the event
of illness or incapacity of Employee, First Interstate shall
continue Employee's salary for six months and may, at its
sole option, continue payment of Employee's salary until he
or she is able to return to work. If Employee is unable to
work due to illness or incapacity for a period greater than
six months, First Interstate may elect, in its discretion,
to terminate this Agreement. If Employee should die during
the term of this Agreement, Employee's employment shall be
treated as terminating and First Interstate's obligations
hereunder shall terminate as of the end of the month in
which Employee's death occurs. Employee's death during a
payout period under paragraph 6 of this Agreement shall,
however, not be treated the same as a death during
employment, i.e., the obligation to make payments under
paragraph 6 shall not terminate as of the end of the month
in which death occurs.
10. Change in Control. Upon a Change in Control
of First Interstate, as defined herein, Employee and First
Interstate agree that, notwithstanding any provisions to the
contrary in this Agreement, the terms and conditions of this
Agreement will be modified as follows:
(a) The term of this Agreement will automatically
be extended to the date two years following the date of
the Change in Control of First Interstate.
(b) Employee's duties shall remain defined as set
forth in paragraph 2 of this Agreement, or as otherwise
modified pursuant to paragraph 2 prior to the date of
the Change in Control. Following the Change in
Control, Employee's duties may not be changed and the
Chief Executive Officer and the Compensation Committee
shall no longer have the power to change, modify, add
to, or take away from the scope of Employee's duties.
In addition, Employee shall be entitled to benefits
under First Interstate's employee benefits programs
which are at least as favorable, in the aggregate, as
the most favorable of those benefits provided to
Employee under such programs prior to the Change in
Control or, if more favorable to Employee, those
provided generally at any time after the Change in
Control to other peer executives of First Interstate.
Any breach of this subparagraph (b) (which shall be
deemed to include the transfer of Employee's job
location to a site more than 50 miles away from his or
her place of employment prior to the Change in
Control), as determined by Employee in good faith, may
be deemed a material breach of this Agreement, and will
entitle Employee, at his or her election, to terminate
this Agreement and receive damages pursuant to
paragraph 6 of this Agreement (as modified by
subparagraphs 10(c) and 10(d) below and without regard
to the requirement that Employee execute a release).
(c) Upon a Change in Control, paragraphs 5 and 8
of this Agreement shall have no further force or
effect, and the employment of Employee may be term-
inated by First Interstate without causing a breach of
the Agreement only if (1) Employee engages in an act of
dishonesty or moral turpitude (including but not
limited to conviction of a felony) which materially
injures or damages First Interstate or (2) Employee
willfully fails to substantially perform his or her
duties hereunder and such willful failure results in
demonstrable material injury and damage to First
Interstate. The terms of paragraph 9 shall remain in
full force and effect following a Change in Control.
If Employee is terminated for a reason other than one
listed in the second preceding sentence, First
Interstate shall be treated as having breached this
Agreement and Employee shall be entitled to the payment
described in subparagraph (d) below (as damages and not
as a penalty for such breach). Such payment shall be
paid in a lump sum no later than 10 days following the
date of breach and there shall be no excuse for a delay
in payment.
(d) The amount First Interstate agrees to pay
Employee under this paragraph 10 shall equal an amount
determined by adding (1) and (2) and, if Employee's
employment is terminated in the same calendar year in
which the Change in Control occurs, by reducing the
result by (3), where
(1) is equal to $30,000 plus three
times the sum of (A) the amount of Employee's
annual base salary in effect immediately prior to
Employee's termination of employment and (B) the
aggregate of the amounts of Employee's target
bonus awards for the year in which Employee's
employment terminates under all of First
Interstate's incentive plans or programs in which
Employee was then participating,
(2) is equal to the sum of (A) the
aggregate of the increases in the single sum
actuarial equivalents of Employee's vested accrued
benefits under the Retirement Plan for the
Employees of First Interstate Bancorp and its
Affiliates or any successor plan (hereinafter
referred to as the "Pension Plan") and each
nonqualified defined benefit pension plan
sponsored by First Interstate other than the First
Interstate Bancorp Supplemental Executive
Retirement Plan (the "SERP") that would result if
Employee were credited with three additional years
of Service and Benefit Service (as such terms are
defined in the Pension Plan) and three additional
years of age, provided that the additional years
of Service shall in no event alter the determi-
nation of Employee's Basic Monthly Salary (as
defined in the Pension Plan), and (B) the
aggregate of the single sum actuarial equivalents
of Employee's vested accrued benefits under all
nonqualified employee deferred compensation plans
sponsored by First Interstate (including the SERP)
determined without regard to the provisions of the
preceding clause (A), and
(3) is an amount equal to the aggregate
of the amounts of any bonus awards paid to
Employee under First Interstate's incentive plans
or programs that were accelerated because of the
Change in Control, multiplied by a fraction, the
numerator of which is the number of full months
between the date of Employee's termination of
employment and January 1 of the year following the
year in which the Change in Control occurred, and
the denominator of which is 12.
The single sum actuarial equivalents described above
shall be determined using the interest rate and
mortality table set forth in the Pension Plan for
purposes of converting benefits to lump sum payments.
Nothing contained herein shall affect the application
of any provisions regarding offsets or non-duplication
of benefits applicable to any of the nonqualified
deferred compensation plan benefits referred to herein.
Upon payment of the amount described under clause
(2)(B) above, no further benefits shall be payable to
Employee under the plans described therein.
(e) Following a Change in Control, Employee's
base annual salary for the remaining term of this
Agreement shall be no less than his or her base salary
immediately prior to the date of the Change in Control.
(f) A "Change in Control" of First Interstate
means and shall be deemed to have occurred if and when
any one of the following five events occurs: (1)
within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, any person or group becomes a
beneficial owner, directly or indirectly, of securities
of First Interstate representing 20% or more of the
combined voting power of First Interstate's then
outstanding securities; (2) individuals who were
members of the Board of Directors of First Interstate
immediately prior to a meeting of the stockholders of
First Interstate involving a contest for the election
of Directors shall not constitute a majority of the
Board of Directors following such election; (3) the
stockholders of First Interstate approve the dissolu-
tion or liquidation of First Interstate; (4) the
stockholders of First Interstate approve an agreement
to merge or consolidate, or otherwise reorganize, with
or into one or more entities which are not subsidiar-
ies, as a result of which less than 50% of the out-
standing voting securities of the surviving or result
ing entity are, or are to be, owned by former stock
holders of First Interstate (excluding from the term
"former stockholders" a stockholder who is, or as a
result of the transaction in question becomes, an
"affiliate", as that term is used in the Securities
Exchange Act of 1934 and the Rules promulgated thereun-
der, of any party to such merger, consolidation or
reorganization); or (5) the stockholders of First
Interstate approve the sale of substantially all of
First Interstate's business and/or assets to a person
or entity which is not a subsidiary.
(g) Paragraph 14 shall no longer apply and the
following arbitration provisions shall apply:
(1) Because it is agreed that time will
be of the essence in determining whether any
payments are due to Employee under this Agreement
following a Change in Control, Employee may, if he
or she desires, submit any claim for payment under
this Agreement or dispute regarding the
interpretation of this Agreement to arbitration.
This right to select arbitration shall be solely
that of Employee and Employee may decide whether
or not to arbitrate in his or her discretion. The
"right to select arbitration" is not mandatory on
Employee and Employee may choose in lieu thereof
to bring an action in an appropriate civil court.
Once an arbitration is commenced, however, it may
not be discontinued without the mutual consent of
both parties to the arbitration.
(2) Any claim for arbitration may be
filed in writing with an arbitrator of Employee's
choice who is selected by the method described in
the next four sentences. The first step of the
selection shall consist of Employee submitting a
list of five potential arbitrators to First
Interstate. Each of the five arbitrators must be
either (A) a member of the National Academy of
Arbitrators located in the State of California or
(B) a retired California Superior Court or
Appellate Court judge. Within one week after
receipt of the list, First Interstate shall select
one of the five arbitrators as the arbitrator for
the dispute in question. If First Interstate
fails to select an arbitrator in a timely manner,
Employee shall then designate one of the five
arbitrators as the arbitrator for the dispute in
question.
(3) The arbitration hearing shall be
held within seven days (or as soon thereafter as
possible) after the picking of the arbitrator. No
continuance of said hearing shall be allowed
without the mutual consent of Employee and First
Interstate. Absence from or nonparticipation at
the hearing by either party shall not prevent the
issuance of an award. Hearing procedures which
will expedite the hearing may be ordered at the
arbitrator's discretion, and the arbitrator may
close the hearing in his or her sole discretion
when he or she decides he or she has heard
sufficient evidence to satisfy issuance of an
award.
(4) The arbitrator's award shall be
rendered as expeditiously as possible and in no
event later than one week after the close of the
hearing. In the event the arbitrator finds that
First Interstate has breached this Agreement, he
or she shall order First Interstate to immediately
take the necessary steps to remedy the breach.
The award of the arbitrator shall be final and
binding upon the parties. The award may be
enforced in any appropriate court as soon as
possible after its rendition. If an action is
brought to confirm the award, both First
Interstate and Employee agree that no appeal shall
be taken by either party from any decision
rendered in such action.
(5) Solely for purposes of determining
the allocation of the costs described in this
subsection, First Interstate will be considered
the prevailing party in a dispute if the
arbitrator determines (A) that First Interstate
has not breached this Agreement and (B) the claim
by Employee was not made in good faith.
Otherwise, Employee will be considered the
prevailing party. In the event that First
Interstate is the prevailing party, the fee of the
arbitrator and all necessary expenses of the
hearing (excluding any attorneys' fees incurred by
First Interstate) including stenographic reporter,
if employed, shall be paid by Employee. In the
event that Employee is the prevailing party, the
fee of the arbitrator and all necessary expenses
of the hearing (including all attorneys' fees
incurred by Employee in pursuing his or her
claim), including the fees of a stenographic
reporter if employed, shall be paid by First
Interstate.
(h) Paragraph 15 shall be deleted.
(i) First Interstate agrees that, if Employee is
terminated under circumstances that constitute a breach
of this Agreement, First Interstate will make no
statements with regard to Employee which might be
interpreted to reflect adversely upon his or her job
competency.
(j) Employee shall be entitled to refuse all or
any portion of any payment under this Agreement if he
or she determines that receipt of such payment may
result in adverse tax consequences to him or her.
First Interstate shall be totally and permanently
relieved of any obligation to pay any amount which
Employee explicitly so refuses in writing.
11. Consultation with Legal Counsel. Employee
acknowledges that he or she has been encouraged to consult
with legal counsel before signing this Agreement.
12. Governing Law. This Agreement is made and
entered into in the State of California, and the laws of
California shall govern its validity and interpretation in
the performance by the parties hereto of their respective
duties and obligations hereunder.
13. Entire Agreement. This Agreement constitutes
the entire agreement between the parties respecting the
employment of Employee, and there are no representations,
warranties or commitments, other than those set forth
herein. This Agreement may be amended or modified only by
an instrument in writing executed by all of the parties
hereto. This is an integrated agreement.
14. Arbitration. Except as otherwise provided in
paragraph 8, any dispute, controversy, or claim arising out
of or relating to this Agreement or breach thereof, or
arising out of or relating in any way to the employment of
the Employee or the termination thereof, shall be submitted
to arbitration in accordance with the Voluntary Labor
Arbitration Rules of the American Arbitration Association.
Judgment upon the award rendered by the arbitrator may be
entered in any court in the State of California, or in any
other court of competent jurisdiction. In reaching his or
her decision, the arbitrator shall have no authority to
ignore, change, modify, add to or delete from any provision
of this Agreement, but instead is limited to interpreting
this Agreement. In the case of any arbitration or
subsequent judicial proceeding arising after a Change in
Control, Employee shall be awarded his or her costs,
including attorneys' fees.
15. Assistance in Litigation. Employee shall
make himself or herself available, upon the request of First
Interstate, to testify or otherwise assist in litigation,
arbitration, or other disputes involving First Interstate,
or its directors, officers, employees, subsidiaries, or
parent corporations, (1) during the term of this Agreement
at no additional cost and (2) at any time following the
termination of this Agreement so long as Employee receives a
reasonable fee for his or her services plus reimbursement of
out-of-pocket expenses.
16. Notices. Any notice or communications
required or permitted to be given to the parties hereto
shall be delivered personally or be sent by United States
registered or certified mail, postage prepaid and return
receipt requested, and addressed or delivered as follows, or
as such other addresses the party addressed may have substi-
tute by notice pursuant to this section:
(a) If to First Interstate:
First Interstate Bancorp
633 West 5th Street
Los Angeles, California 90071
Attention: Corporate Secretary
(b) If to Employee:
17. Captions. The captions of this Agreement are
inserted for convenience and do not constitute a part
hereof.
18. Severability. In case any one or more of the
provisions contained in this Agreement shall for any reason
be held to be invalid, illegal or unenforceable in any other
respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained
herein and there shall be deemed substituted therefor such
other provision as will most nearly accomplish the intent of
the parties to the extent permitted by the applicable law.
In case this Agreement, or any one or more of the provisions
hereof, shall be held to be invalid, illegal or unenforce-
able within any governmental jurisdiction or subdivision
thereof, this Agreement or any such provision thereof shall
not as a consequence thereof be deemed to be invalid,
illegal or unenforceable in any other governmental jurisdic-
tion or subdivision thereof.
19. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which
shall be deemed an original, but all of which shall together
constitute one and the same Agreement.
IN WITNESS HEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered as of the
day and year first written above in Los Angeles, California.
EXECUTED: _______________, 19__.
First Interstate Bancorp
By ___________________________
EXECUTED: _______________, 19__.
___________________________
[Name of Employee]
EXHIBIT A
RESIGNATION AND GENERAL RELEASE AGREEMENT
In consideration of the covenants undertaken and
releases contained in this Resignation and General Release
Agreement (the "Agreement"), _________________ ("______") and
First Interstate Bancorp ("First Interstate"), agree as
follows:
______ hereby resigns, effective ___________, 199_,
from his or her position as _______________________ of First
Interstate, and as an officer, director, employee, or in any
other capacity with First Interstate or any of First
Interstate's divisions, subsidiaries or affiliates. First
Interstate shall as severance continue to and including
______, 199_, to pay to ______ his or her monthly base salary
of $_______________, less standard withholding and authorized
deductions. Such severance payment is for and in lieu of all
accrued but unpaid wages including vacation pay and any bonus,
and any other payments or benefits and none shall accrue
beyond _________________, 199_, provided, however, that First
Interstate shall pay to ______ on or before ___________, 199_,
his or her accrued but unused vacation to that date. _______
shall have the option to convert and continue his or her
health insurance after ____________, 199_, as may be required
or authorized by law under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA").
Except for those obligations created by or arising
out of this Agreement and any benefits specifically provided
for in the terms of any employee pension benefit plans (as
defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974) evidenced by written agreements, ______
hereby acknowledges full and complete satisfaction of and
releases and discharges and covenants not to sue First
Interstate, its divisions, subsidiaries, parent, affiliated
corporations, past and present, and each of them, as well as
their directors, officers, shareholders, representatives,
assignees, successors, agents and employees, past and present,
and each of them (individually and collectively, "Releasees")
from and with respect to any and all claims, wages,
agreements, obligations, demands and causes of action, known
or unknown, suspected or unsuspected, arising out of or in any
way connected with his or her employment relationship with, or
his or her separation or resignation from, First Interstate,
including, without limiting the generality of the foregoing,
any claim for severance pay, bonus or similar benefit, sick
leave, vacation pay, life insurance, health or medical
insurance or any other fringe benefit, workers' compensation
or disability, or any other occurrences, acts or omissions
whatever, known or unknown, suspected or unsuspected,
resulting from any act or omission by or on the part of
Releasees committed or omitted prior to the date of this
Agreement, including, without limiting the generality of the
foregoing, any claim under Title VII of the Civil Rights Act
of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family and Medical Leave
Act, the California Fair Employment and Housing Act, the
California Family Rights Act, or any other federal, state or
local law, regulation or ordinance.
This Agreement is intended to be effective as a bar
to every claim, demand and cause of action stated above.
Accordingly, ______ hereby expressly waives any rights and
benefits conferred by Section 1542 of the California Civil
Code, 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."
If any provision of this Agreement or its appli-
cation is held invalid, the invalidity shall not affect other
provisions or applications of the Agreement which can be given
effect without the invalid provisions or application and,
therefore, the provisions of this Agreement are declared to be
severable. _______ agrees to keep the terms of this Agreement
confidential.
_______________ acknowledges that he or she has been
encouraged to consult with legal counsel before signing this
Agreement.
[For employees 40 or older] _____ will be provided ample time
and opportunity to consider the terms of this Agreement and to
consult with an attorney if he or she chooses to do so. If
_____ agrees to all the provisions of this Agreement, he or
she shall return the executed original of this Agreement to
________________________. _____ shall have twenty-one (21)
days from the date he or she receives this Agreement in which
to sign this Agreement. He or she shall have seven (7) days
from the date he or she signs the Agreement within which to
revoke it.
The undersigned have read and understand the conse-
quences of this Agreement and voluntarily sign it. The under
signed declare under penalty of perjury that the foregoing is
true and correct.
EXECUTED this ______ day of ________ 199_, at
____________ County, California.
FIRST INTERSTATE BANCORP ________________________
[Name]
By _______________________ ________________________
[Signature]
Title _______________________