TIER II
CALIFORNIA
EMPLOYMENT AGREEMENT
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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 Bank of California, a California corporation
("Employer") , and a wholly-owned subsidiary (except for any directors'
qualifying shares) of First Interstate Bancorp, a Delaware corporation ("First
Interstate"). This Agreement terminates and supersedes the Employment
Agreement dated ____________, ____ between Employer and Employee and sets
forth the terms and conditions of Employee's continued employment with
Employer. Employee and Employer hereby agree that Employee will render
services to Employer on the following terms and conditions:
1. Employment. Upon the terms and subject to the conditions
contained herein, during the term of this Agreement, Employer hereby agrees to
employ Employee to provide full-time services for Employer. During the term
hereof, Employee agrees to devote his or her best efforts to the business of
Employer, and shall perform his or her duties in a diligent, trustworthy,
business-like manner, all for the purpose of advancing the business of
Employer.
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 Compensation Committee of Employer.
3. Salary and Benefits. Employer 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. Employer 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 this
Agreement. Employer may not, however, reduce Employee's base salary during the
term of this Agreement. Employee shall be entitled to participate in the
employee
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benefit programs generally available to employees of
Employer.
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 Employer for a reason described in paragraph 5.
5. Termination. During the term of this Agreement, and except as
otherwise provided in paragraph 10 of this Agreement, the parties agree that
Employer 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 Employer, (2) Employee
willfully fails to substantially perform his or her duties hereunder and such
willful failure results in demonstrable material injury and damage to
Employer, (3) it is determined that Employee has misrepresented 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 Employer,
such as performance objectives relating to profit.
6. Remedy for Breach. In the event that Employer 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, Employer 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 18. Unless Employer determines in
its complete discretion to pay such amount more quickly,
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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 18 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 Employee might be entitled and that Employer'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 Employer 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 Employer has wrongfully
discharged Employee).
7. Successors. The rights and obligations of Employer under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of Employer.
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
Interstate or Employer 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 or Employer in a manner that
tends to portray First Interstate or Employer 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, Employer 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, Employer 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, Employer may
elect, in its discretion, to terminate this Agreement. If Employee should die
during
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the term of this Agreement, Employee's employment shall be treated as
terminated and Employer'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 Employer 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 Employer'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 Employer. 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
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effect, and the employment of Employee may be terminated by Employer
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 Employer 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 Employer. 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, Employer 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 Employer 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 $20,000 plus two 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
Employer's or 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 Employer or
First Interstate other than the First Interstate Bancorp
Supplemental Executive Retirement Plan (the "SERP") that would
result if Employee were credited with two additional years of
Service and Benefit Service
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(as such terms are defined in the Pension Plan) and two additional
years of age, provided that the additional years of Service shall
in no event alter the determination 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 Employer or First Interstate (including the
SERP) deter-mined 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 Employer's or 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 in 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 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
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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 dissolution 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
subsidiaries, as a result of which less than 50% of the outstanding
voting securities of the surviving or resulting entity are, or are to
be, owned by former stockholders 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
thereunder, 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
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in the next four sentences. The first step of the selection shall
consist of Employee submitting a list of five potential
arbitrators to Employer. 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, Employer shall select one of the five arbitrators as the
arbitrator for the dispute in question. If Employer 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 Employer. 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 Employer has
breached this Agreement, he or she shall order Employer 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 Employer 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, Employer will be considered
the prevailing party in a dispute if the arbitrator
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determines (A) that Employer 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 Employer is the prevailing party, the fee of the arbitrator
and all necessary expenses of the hearing (excluding any
attorneys' fees incurred by Employer) 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 Employer.
(h) Paragraph 15 shall be deleted.
(i) Employer agrees that, if Employee is terminated under
circumstances that constitute a breach of this Agreement, Employer 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.
Employer 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
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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 or Employer, to
testify or otherwise assist in litigation, arbitration, or other disputes
involving First Interstate or Employer, or any of the directors, officers,
employees, subsidiaries, or parent corporations of either, (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 to such other address as
the party addressed may have substituted by notice pursuant to this section:
(a) If to Employer:
First Interstate Bank of California
633 West 5th Street
Los Angeles, California 90071
Attention: Corporate Secretary
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(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 unenforceable 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 jurisdiction 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.
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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 Bank of California
By _____________________________________________
EXECUTED: ____________, 19__.
______________________________
(Name of Employee)
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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 Bank of California ("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, parent 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
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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 application 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
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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 consequences of this
Agreement and voluntarily sign it. The undersigned declare under penalty of
perjury that the foregoing is true and correct.
EXECUTED this day of _______ 199 , at __________ County, California.
FIRST INTERSTATE BANK ______________________
OF CALIFORNIA [Name]
By _________________________________ ______________________
[Signature]
Title ______________________________
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