Exhibit 10.27
FORM OF CHANGE IN CONTROL AGREEMENT
MONTEREY BAY BANCORP, INC.
MONTEREY BAY BANK
This AGREEMENT is made effective as of _________________, 2003, by and
between Monterey Bay Bancorp, Inc. ("Company"), a corporation organized under
the laws of the State of Delaware, with its principal executive offices located
at 567 Auto Center Drive, Watsonville, California, 95076; and Monterey Bay Bank
("Association"), a federally chartered savings and loan association, a
wholly-owned subsidiary of the Company, and ________________________________
("Executive").
WHEREAS, the Company and Association wish to assure both themselves and
their key employees of continuity of management and objective judgment in the
event of a threatened or actual change in control of the Company or Association,
and to induce its key employees to remain employed by the Company or Association
in the event of a threatened or actual change in control of the Company or
Association, and
WHEREAS, the Boards of Directors of the Company and / or the
Association have determined that Executive is a key employee of the Company and
/ or Association and an integral part of its management; and
WHEREAS, this Agreement is not intended to alter materially the
compensation and benefits that the Executive reasonably could expect to receive
in the absence of a threatened or actual change in control of the Company or
Association, and this Agreement accordingly will be operative only upon
circumstances relating to a change in control of the Company or Association, as
set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. TERM OF AGREEMENT.
The term of this Agreement shall be deemed to have commenced as of the
date first above written and shall continue for a period of twelve (12) full
calendar months thereafter. Commencing on the first anniversary date of this
Agreement and continuing at each anniversary date thereafter, the Boards of
Directors ("Board") of the Company and Association may extend this Agreement for
an additional twelve months. The Boards of Directors will review this Agreement
at least annually for purposes of determining whether to extend this Agreement
and shall give notice to the Executive as soon as possible after such review as
to whether the Agreement is to be extended.
Page 1 of 18 Pages
2. CHANGE IN CONTROL.
(a) Upon the occurrence of a Change in Control of the Company or
Association (as herein defined) followed at any time during the term of this
Agreement or for six months thereafter by the termination of Executive's
employment, other than for Termination for Cause, as defined in Section 2(c)
hereof, the provisions of Section 3 shall apply.
(b) For purposes of this Agreement, a "Change in Control" of the
Company or Association shall mean an event of a nature that: (i) would be
required to be reported in response to Item 1(a) of the Current Report on Form
8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act"); or (ii) results in a
Change in Control of the Company or Association within the meaning of the Home
Owners' Loan Act of 1933 and the Rules and Regulations promulgated by the Office
of Thrift Supervision ("OTS") (or its predecessor or successor agency), as in
effect on the date hereof (provided, that in applying the definition of change
in control as set forth under the rules and regulations of the OTS, the Boards
of Directors shall substitute their judgment for that of the OTS); or (iii)
without limitation such a Change in Control shall be deemed to have occurred at
such time as (A) any "person" (as the term is used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company or Association representing 25% or more of the Association's or the
Company's outstanding securities except for any securities of the Association
purchased by the Company in connection with the conversion of the Association to
the stock form and any securities purchased by any employee benefit plan of the
Company or Association, or (B) individuals who constitute the Boards of
Directors on the date hereof (the "Incumbent Boards") cease for any reason to
constitute at least a majority thereof, provided that any person becoming a
Director subsequent to the date hereof whose election was approved by a vote of
at least three-quarters of the Directors comprising the Incumbent Boards, or
whose nomination for election by the Company's or Association's stockholders was
approved by the same Nominating Committees serving under Incumbent Boards, shall
be, for purposes of this clause (B), considered as though he were a member of
the Incumbent Boards, or (C) a plan of reorganization, merger, consolidation,
sale of all or substantially all the assets of the Company or Association or
similar transaction occurs in which the Company or Association is not the
resulting entity, or (D) a proxy statement is distributed soliciting proxies
from stockholders of the Company, by someone other than the current management
of the Company, seeking stockholder approval of a plan of reorganization, merger
or consolidation of the Company or Association with one or more corporations as
a result of which the outstanding shares of the class of securities then subject
to such plan or transaction are exchanged for or converted into cash or property
or securities not issued by the Company or the Association shall be distributed,
or (E) a tender offer is made for 25% or more of the voting securities of the
Company or Association then outstanding.
Page 2 of 18 Pages
(c) Executive shall not have the right to receive termination benefits
pursuant to Section 3 hereof upon Termination for Cause. The term "Termination
for Cause" shall mean termination because of the Executive's intentional failure
to perform stated duties, personal dishonesty, incompetence, unsatisfactory job
performance as voted by at least a three-fourths majority of the Boards, willful
misconduct, any breach of fiduciary duty involving personal profit, willful
violation of any law, rule, regulation (other than traffic violations or similar
offenses) or final cease and desist order, the use of drugs or alcohol that
interferes with the Executive's performance of his job duties, any unlawful
conduct by Executive injurious to the interest, property, operations, business
or reputation of the Company or Association, or any material breach of this
Agreement. For purposes of this Section, no act, or the failure to act, on
Executive's part shall be "willful" unless done, or omitted to be done, not in
good faith and without reasonable belief that the action or omission was in the
best interest of the Company or its affiliates. Notwithstanding the foregoing,
Executive shall not be deemed to have been Terminated for Cause unless and until
there shall have been delivered to him a copy of a resolution duly adopted by
the affirmative vote of not less than three-fourths of the members of the Boards
of Directors at meetings of the Boards of Directors called and held for that
purpose, finding that in the good faith opinion of the Boards of Directors,
Executive was guilty of conduct justifying Termination for Cause and specifying
the particulars thereof in detail. Executive shall not have the right to receive
compensation or other benefits for any period after Termination for Cause. Any
stock options and related limited rights granted to Executive under any stock
option plan, or any unvested awards granted to Executive under any restricted
stock benefit plan of the Company or its subsidiaries, shall become null and
void effective upon Executive's receipt of Notice of Termination For Cause and
shall not be exercisable by or delivered to Executive at any time subsequent to
such Termination for Cause.
Page 3 of 18 Pages
3. TERMINATION BENEFITS.
(a) If within six (6) months following the date a Change in Control has
occurred or the Boards of Directors have determined that a Change in Control has
occurred, Executive shall be entitled to the benefits provided in Sections 3(b)
and 3(c) upon: (1) Executive's termination by the Company or Association, other
than for Termination for Cause, or (2) a material detrimental alteration in
authority or responsibility, demotion, loss of title, or (3) material reduction
in annual compensation or benefits, with material reduction defined as 5.00% or
more, or (4) relocation of Executive's principal place of employment by more
than thirty (30) miles from its prior location.
(b) If the Executive becomes eligible for benefits under Section 3(a)
above, the Company or Association shall be obligated to pay Executive, or in the
event of his subsequent death, his beneficiary or beneficiaries, or his estate,
as the case may be, a sum equal to _______ (__) months of the Executive's then
current annual compensation. Such annual compensation shall include base salary,
auto allowance, any bonuses in the form of cash or stock grants paid or to be
paid to Executive in any such year, and the amount of benefits paid or accrued
to Executive pursuant to any qualified or non-qualified employee benefit plan
maintained by the Company or Association in any such year. At the election of
Executive which election is to be made prior to a Change in Control, such
payment may be made in a lump sum. In the event that no election is made,
payment to Executive will be made on a monthly basis in approximately equal
installments during the remaining term of this Agreement. This Agreement
specifically states that no benefits will be "grossed up" or otherwise adjusted
to reflect the personal income tax consequences to or personal income tax
liabilities of Executive.
(c) If the Executive becomes eligible for benefits under Section 3(a)
above, the Company or Association shall cause to be continued medical, dental,
vision, short term disability, and long term disability coverage substantially
similar to the coverage maintained by the Company or Association for Executive
prior to his severance, except to the extent such coverage may be changed in its
application to all Company or Association employees. Such coverage and payments
shall cease upon expiration of _______ (__) full calendar months following the
Date of Termination.
Page 4 of 18 Pages
(d) Notwithstanding the preceding provisions of this Section 3, in the
event that:
(i) the aggregate payments or benefits to be made or
afforded to Executive, which are deemed to be
parachute payments as defined in Section 280G of the
Internal Revenue Code of 1986, as amended (the
"Code") or any successor thereof, (the "Termination
Benefits") would be deemed to include an "excess
parachute payment" under Section 280G of the Code;
and
(ii) if such Termination Benefits were reduced to an
amount (the "Non-Triggering Amount"), the value of
which is one dollar ($1.00) less than an amount equal
to three (3) times Executive's "base amount," as
determined in accordance with said Section 280G and
the Non-Triggering Amount would be greater than the
aggregate value of the Termination Benefits
(excluding such reduction) minus the amount of tax
required to be paid by the Executive thereon by
Section 4999 of the Code,
then the Termination Benefits shall be reduced to the Non-Triggering Amount. The
allocation of the reduction required hereby among the Termination Benefits shall
be determined solely by the Executive at Executive's discretion.
(e) If the Executive's employment is terminated by reason of
Executive's voluntary resignation, all of the Company's and Association's
obligations hereunder shall terminate upon the date the Executive ceases to be
employed as a result of such voluntary resignation. Executive shall be entitled
to no additional compensation beyond that generally available to all or
substantially all of the full-time employees of the Company or Association at
that time, and Executive shall only be entitled to that compensation and
benefits earned and vested at the date of such voluntary resignation.
Page 5 of 18 Pages
4. NOTICE OF TERMINATION.
(a) Any purported termination by the Company, Association, or by
Executive shall be communicated by Notice of Termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
written notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice
of Termination (which, in the case of Termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given).
5. SOURCE OF PAYMENTS.
It is intended by the parties hereto that all payments provided in this
Agreement shall be paid in cash or check from the general funds of the
Association. Further, the Company guarantees such payment and provision of all
amounts and benefits due hereunder to Executive and, if such amount and benefits
due from the Association are not timely paid or provided by the Association,
such amounts and benefits shall be paid and provided by the Company.
6. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior Change In Control Agreement or similar agreement
between the Company or Association and Executive, except that this Agreement
shall not affect or operate to reduce any benefit or compensation inuring to
Executive of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that Executive is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
Nothing in this Agreement shall confer upon Executive the right to
continue in the employ of the Company or Association, or shall impose on the
Company or Association any obligation to employ or retain Executive in its
employ for any period. Neither the Executive nor the Company or Association is
bound to continue the employment relationship if either chooses, at its will, to
end the relationship and terminate this Agreement at any time.
Page 6 of 18 Pages
7. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive, the Company and Association and their respective successors and
assigns.
8. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
Page 7 of 18 Pages
9. REQUIRED REGULATORY PROVISIONS.
(a) If Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Association's affairs by a notice
served under Section 8(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act (12
U.S.C. ss.1818(E)(3) or (g)(1)), the Association's obligations under this
contract shall be suspended as of the date of service, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the
Association may in its discretion reinstate (in whole or in part) any of the
obligations which were suspended.
(b) If Executive is removed and/or permanently prohibited from
participation in the conduct of the Association's affairs by an order issued
under Section 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
ss.1818(c)(4) or (g)(1)), all obligations of the Association or Company under
this Agreement shall terminate as of the effective date of the order, but vested
rights of the Executive, the Company, or Association shall not be affected.
(c) If the Association is in default as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act, all Obligations of the Association or Company
under this Agreement shall terminate as of the effective date of the order, but
vested rights of the Executive, the Company, or the Association shall not be
affected.
(d) All obligations under this contract shall be terminated, except to
the extent determined that continuation of the contract is necessary for the
continued operation of the institution: (i) by the Director of the Office of
Thrift Supervision (or his or her designee) at the time the Federal Deposit
Insurance Corporation or the Resolution Trust Corporation enters into an
agreement to provide assistance to or on behalf of the Association under the
authority contained in Section 13(c) of the Federal Deposit Insurance Act; or
(ii) by the Director of the Office of Thrift Supervision (or his or her
designee) at the time the Director (or his or her designee) approves a
supervisory merger to resolve problems related to operation of the Association
or when the Association is determined by the Director to be in an unsafe or
unsound condition. Any rights of the parties that have already vested, however,
shall not be affected by such action.
(e) Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
ss.1828(k) and any rules and regulations promulgated thereunder.
Page 8 of 18 Pages
10. REINSTATEMENT OF BENEFITS UNDER SECTION 9(a).
In the event Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Association's affairs by a notice described
in Section 9(a) hereof (the "Notice") during the term of this Agreement and a
Change in Control, as defined herein, occurs, the Association will assume its
obligation to pay and Executive will be entitled to receive all of the
termination benefits provided for under Section 3 of this Agreement upon the
Association's receipt of a dismissal of charges in the Notice.
11. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
12. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
13. GOVERNING LAW.
The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by the laws of the State of Delaware, except to the
extent preempted by Federal law.
Page 9 of 18 Pages
14. ARBITRATION.
In the event there is any dispute arising out of this Agreement, the
Executive, Company, and Association agree to submit such dispute to binding
arbitration in accordance with the terms of the Alternative Dispute Resolution
Agreement set forth in Appendix A to this Agreement and incorporated herein.
15. PAYMENT OF COSTS AND LEGAL FEES.
In the event of any dispute between the parties regarding the
interpretation or enforcement of this Agreement or any part thereof or otherwise
arising out of or relating to this Agreement, the prevailing party shall be
entitled to recover its costs related to any such dispute and its reasonable
fees of attorneys, accountants, and expert witnesses incurred by such party in
connection therewith. As used in this paragraph, "prevailing party" shall mean
the party, if any, in whose favor substantially all of the material issues have
been decided.
16. INDEMNIFICATION.
The Company shall provide Executive (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense, or in lieu thereof, shall indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under Delaware law and as provided in the Company's certificate of
incorporation against all expenses and liabilities reasonably incurred by him in
connection with or arising out of any action, suit or proceeding in which he may
be involved by reason of his having been a Director or Officer of the Company or
Association (whether or not he continues to be a Director or Officer at the time
of incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs, attorneys' fees, and the
cost of reasonable settlements.
Page 10 of 18 Pages
17. SUCCESSOR TO THE COMPANY.
The Company and Association shall require any successor or assignee,
whether direct or indirect, by purchase, merger, consolidation or otherwise, to
all or substantially all the business or assets of the Company or the
Association, expressly and unconditionally to assume and agree to perform the
Company's and Association's obligations under this Agreement, in the same manner
and to the same extent that the Company and Association would be required to
perform if no such succession or assignment had taken place.
SIGNATURES
IN WITNESS WHEREOF, Monterey Bay Bancorp, Inc. and Monterey Bay Bank
have caused this Agreement to be executed by its duly authorized officer, and
Executive has signed this Agreement, on the _____ day of _________________,
2003.
ATTEST: MONTEREY BAY BANCORP, INC.
__________________________________ By: _____________________________
Mary Anne Carson C. Edward Holden
Corporate Secretary Chief Executive Officer
President
ATTEST: MONTEREY BAY BANK
__________________________________ By: _____________________________
Mary Anne Carson C. Edward Holden
Corporate Secretary Chief Executive Officer
President
WITNESS: EXECUTIVE
__________________________________ By: _____________________________
Witness Name Executive Name
Page 11 of 18 Pages
APPENDIX A
ALTERNATIVE DISPUTE RESOLUTION
I. AGREEMENT TO ARBITRATE
In the event that any employment dispute arises between Monterey Bay
Bancorp, Inc, ("Company"), Monterey Bay Bank ("Association") and
__________________ ("Executive"), the parties involved will make all
efforts to resolve any such dispute through informal means. If these
informal attempts at resolution fail and if the dispute arises out of
or is related to a breach of the parties' Employment Agreement, the
termination of employment or alleged unlawful discrimination, Company,
Association, and Executive will submit the dispute to final and binding
arbitration.
By accepting employment with the Company or Association, Executive
agrees that arbitration is the exclusive remedy for all such arbitrable
disputes; with respect to such disputes, no other action may be brought
in court or any other forum (except actions to compel arbitration
hereunder). THIS ALTERNATIVE DISPUTE RESOLUTION ("ADR") AGREEMENT IS A
WAIVER OF THE PARTIES' RIGHTS TO A CIVIL COURT ACTION FOR A DISPUTE
RELATING TO TERMINATION OF EMPLOYMENT OR ALLEGED UNLAWFUL
DISCRIMINATION, WHICH INCLUDES RETALIATION OR SEXUAL OR OTHER UNLAWFUL
HARASSMENT; ONLY AN ARBITRATOR, NOT A JUDGE OR JURY, WILL DECIDE THE
DISPUTE.
Employment disputes arising out of or related to termination of
employment or alleged unlawful discrimination, including retaliation,
sexual or other unlawful harassment, shall include, but not be limited
to, the following: alleged violations of federal, state and/or local
constitutions, statutes or regulations; claims based on any purported
breach of contractual obligation, including breach of the covenant of
good faith and fair dealing; and claims based on any purported breach
of duty arising in tort, including violations of public policy.
Disputes related to workers' compensation and unemployment insurance
are not arbitrable hereunder. Claims for benefits covered by a separate
benefit plan that provides for arbitration are not covered by this ADR
Agreement. Claims that are filed with or are being processed by the
U.S. Equal Employment Opportunity Commission ("EEOC"), or that are
brought under Title VII of the Civil Rights Act of 1964, as amended,
are not arbitrable under this Agreement, except that the parties may
agree in writing to do so with respect to each such dispute that may
arise.
Page 12 of 18 Pages
II. ARBITRATION PROCEDURES
A. Attempt At Informal Resolution Of Disputes
Prior to submission of any dispute to arbitration, Company,
Association, and Executive shall attempt to resolve the dispute
informally through mediation. Company, Association, and Executive will
select a mediator from a list provided by the State Mediation and
Conciliation Service or other similar agency who will assist the
parties in attempting to reach a settlement of the dispute. The
mediator may make settlement suggestions to the parties but shall not
have the power to impose a settlement upon them. If the dispute is
resolved in mediation, the matter shall be deemed closed. If the
dispute is not resolved in mediation and goes to the next step (binding
arbitration), any proposals or compromises suggested by either of the
parties or the mediator shall not be referred to or have any bearing on
the arbitration procedure. The mediator cannot also serve as the
arbitrator in the subsequent proceeding unless all parties expressly
agree in writing.
B. Request for Arbitration
Should Company, Association, or Executive wish to pursue arbitration of
any arbitrable dispute, Company, Association, Executive or its/his
representative must submit a written "Request For Arbitration" to the
other party with (1) year of the alleged conduct giving rise to the
dispute. If the "Request For Arbitration" is not submitted in
accordance with the aforementioned time limitations, the party will not
be able to bring its/his claims to this or any other forum. Unless
otherwise required by law, the "Request For Arbitration" shall clearly
state it is "Request For Arbitration" at the beginning of the first
page and includes the following information: (1) a factual description
of the dispute in sufficient detail to advise the other party of the
nature of the dispute, (2) the date when the dispute first arose, and
(3) the relief requested by requesting party.
A Request for Arbitration must be mailed to the other party's last
known address or hand-delivered to that party. The party to whom the
Request for Arbitration is directed will respond within thirty (30)
days so that the parties can begin the process of selecting an
Arbitrator. Such response may include any counterclaims.
C. Selection Of The Arbitrator
All disputes will be resolved by a single Arbitrator, selected through
and under the American Arbitration Association's "National Rules for
the Resolution of Employment Disputes" as amended and effective June 1,
1997.
Page 13 of 18 Pages
D. The Arbitrator's Authority
The Arbitrator shall have the powers enumerated below:
1. Ruling on motions regarding discovery, and ruling on
procedural and evidentiary issues arising during the
arbitration.
2. Ruling on motions to dismiss and/or motions for summary
judgment applying the standards governing such motions under
the Federal Rules of Civil Procedure.
3. Issuing protective orders on the motion of any party or third
party witness, such protective orders may include, but are not
limited to, sealing the record of the arbitration, in whole or
in part (including discovery proceedings and motions,
transcripts, and the decision and award), to protect the
privacy or other constitutional or statutory rights of parties
and/or witnesses.
4. Determining only the issue(s) submitted to him/her. The
issue(s) must be identifiable in the "Request For Arbitration"
or counterclaim(s). Except as required by law, any issue(s)
not identifiable in those documents is outside the scope of
the Arbitrator's jurisdiction and any award involving such
issue(s), upon motion by a party, shall be vacated.
Page 14 of 18 Pages
E. Discovery
The discovery process shall proceed and be governed, consistent with
the standards of the Federal Rules of Civil Procedure, as follows:
1. Unless otherwise required by law, parties may obtain discovery
by any of the following methods:
a. Depositions of non-expert witnesses upon oral
examination, five (5) per side as of right, with more
permitted if leave is obtained from the Arbitrator;
b. Written interrogatories, up to a maximum combined
total of twenty (20), with the responding party
having twenty (20) days to respond;
c. Request for production of documents or things or
permission to enter upon land or other property for
inspection, with the responding party having twenty
(20) days to produce the documents and allow entry or
to file objections to the request;
d. Physical and mental examination, in accordance with
Federal Rule of Civil Procedure 35(a); and
e. Any motion to compel production, answers to
interrogatories or entry onto land or property must
be made to the Arbitrator within fifteen (15) days of
receipt of objections.
2. To the extent permitted by the Federal Arbitration Act or
applicable California law, each party shall have the right to
subpoena witnesses and documents during discovery and for the
arbitration.
3. All discovery requests shall be submitted no less than sixty
(60) days before the hearing date.
4. The scope of discoverable evidence shall be in accordance with
Federal Rule of Civil Procedure 26(b)(1).
5. The Arbitrator shall have the power to enforce the
aforementioned discovery rights and obligations by the
imposition of the same terms, conditions, consequences,
liabilities, sanctions and penalties as can or may be imposed
in like circumstances in a civil action by a federal court
under the Federal Rules of Civil Procedure.
Page 15 of 18 Pages
F. Hearing Procedure
The hearing shall proceed according to the American Arbitration
Association's "National Rules for the Resolution of Employment
Disputes" as amended and effective June 1, 1997, with the following
amendments:
1. The Arbitrator shall rule at the outset of the
arbitration on procedural issues that bear on whether
the arbitration is allowed to proceed.
2. Each party has the burden of proving each element of
its claims or counterclaims, and each party has the
burden of proving any of its affirmative defenses.
3. In addition to, or in lieu of closing argument,
either party shall have the right to present a
post-hearing brief, and the due date for exchanging
any post-hearing briefs shall be mutually agreed on
by the parties and the Arbitrator.
G. Substantive Law
1. The parties agree that they will be afforded the
identical legal equitable, and statutory remedies as
would be afforded them were they to bring an action
in a court of competent jurisdiction.
2. The applicable substantive law shall be the law of
the State of California or federal law. If both
federal and state law are applicable to a cause of
action, Executive shall have the right to elect his
choice of law. Choice of substantive law in no way
affects the procedural aspects of the arbitration,
which are exclusively governed by the provisions of
this ADR Agreement.
H. Opinion And Award
The Arbitrator shall issue a written opinion and award, in conformance
with the following requirements:
1. The opinion and award must be signed and dated by the
Arbitrator.
2. The Arbitrator's opinion and award shall decide all
issues submitted.
3. The Arbitrator's opinion and award shall set forth
the legal principles supporting each part of the
opinion.
4. The Arbitrator shall have the same authority to award
remedies, damages and costs as provided to a judge
and/or jury under parallel circumstances.
Page 16 of 18 Pages
I. Enforcement Of Arbitrator's Award
Following the issuance of the Arbitrator's decision, any party may
petition a court to confirm, enforce, correct or vacate the
Arbitrator's opinion and award under the Federal Arbitration Act,
and/or applicable California law.
J. Fees And Costs
Unless otherwise required by law, fees and costs shall be allocated in
the following manner:
1. Each party shall be responsible for its own
attorneys' fees, except as otherwise provided by law.
2. The Company or Association shall pay the entire cost
of the arbitrator's services, the facility in which
the arbitration is to be held, and any similar costs,
except that Executive shall contribute toward these
costs an amount equal to the then-current filing fee
in California Superior Court charged for filing a
complaint or for first appearing, whichever is lower.
3. The Company or Association shall pay the entire cost
of a court reporter to transcribe the arbitration
proceedings. Each party shall advance the cost for
said party's transcript of the proceedings. Each
party shall advance its own costs for witness fees,
service and subpoena charges, copying, or other
incidental costs that each party would bear during
the course of a civil lawsuit.
4. Each party shall be responsible for its costs
associated with discovery, except as required by law
or court order.
Page 17 of 18 Pages
III. SEVERABILITY
In the event that any provision of this ADR Agreement is determined by
a court of competent jurisdiction to be illegal, invalid or
unenforceable to any extent, such term or provision shall be enforced
to the extent permissible under the law and all remaining terms and
provisions of this ADR Agreement shall continue in full force and
effect.
DATED: ________________, 2003 _______________________________
Executive
MONTEREY BAY BANK
DATED: _______________, 2003 By: ___________________________
C. Edward Holden
Chief Executive Officer
President
MONTEREY BAY BANCORP, INC.
DATED: _______________, 2003 By: ___________________________
C. Edward Holden
Chief Executive Officer
President
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