EXHIBIT NO. 10.37
RELEASE AGREEMENT
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This Release Agreement ("Agreement"), dated as of January 19, 1999, is made by
and among BANK PLUS CORPORATION, a Delaware corporation ("Bank Plus"), FIDELITY
FEDERAL BANK, A FEDERAL SAVINGS BANK ("Fidelity"), GATEWAY INVESTMENT SERVICES,
INC., a California corporation ("GATEWAY"), and Robert P. Condon ("Employee").
Bank Plus, Fidelity and Gateway and their respective direct and indirect
subsidiaries shall be known as the "Company".
A. By mutual agreement, Employee's active employment with the Company
will end effective January 19, 1999 (the "Termination Date").
B. The Company and Employee wish to resolve certain claims the parties
may have arising out of or related to Employee's employment by the Company.
C. Employee is a party to a series of letter agreements dated as of
August 1, 1997, August 9, 1995, and November 22, 1994 (the "CIC/Severance
Agreements"), an Incentive Stock Option Agreement dated December 11, 1995 as
amended on February 28, 1996 (the "ISO Agreement"), a Stock Option Agreement
dated April 29, 1998 (the "Stock Option Agreement"), and a Restricted Stock
Award Agreement dated March 12, 1998 (the "Restricted Stock Agreement"). (The
CIC/Severance Agreements, ISO Agreement, Stock Option Agreement and the
Restricted Stock Agreement shall collectively be known as the "Employee
Agreements".)
D. Employee and Fidelity are parties to an indemnity agreement dated as
of June 20, 1995 (the "Indemnity Agreement"). Employee is or may be a
participant in the Company's deferred compensation plan (the "Deferred
Compensation Plan"), the Company's retirement income plan (the "Retirement
Income Plan"), and the Company's 401(k) Savings and Investment Plan (the "401(k)
Plan").
E. The parties hereto have entered into a Consulting and Profit Sharing
Agreement of even date herewith (the "Consulting and Profit Sharing Agreement").
NOW, THEREFORE, in consideration of the foregoing recitals and the
terms and conditions of this Agreement, the parties hereto agree as follows:
1. EMPLOYEE RELEASE.
a) Employee (for himself, his agents, heirs, successors, assigns,
executors and/or administrators) does hereby and forever release and
discharge Bank Plus, Fidelity, Gateway and their respective
affiliated corporations or entities, as well as the officers,
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directors, employees, consultants, accountants, agents and attorneys
and representatives of each of them, past or present, from any and
all causes of action, actions, judgments, liens, debts, contracts,
lawsuits, indebtedness, damages, losses, claims, liabilities,
rights, interests and demands of whatsoever kind of character, known
or unknown, suspected to exist or not suspected to exist,
anticipated or not anticipated, contingent or absolute, whether or
not heretofore brought before any state or federal court or before
any state or federal agency or other governmental entity, that
Employee has or may have against any released person or entity, by
reason of any and all acts, omissions, events or facts occurring or
existing prior to the date hereof, including, without limitation,
all claims attributable to the employment of Employee, all claims
attributable to the termination of that employment, all claims
arising under the Employee Agreements, all claims asserting breach
of an actual or implied contract, and all claims arising under any
federal, state or other governmental statute, regulation or
ordinance or common law, such as for example and without limitation,
Title VII of the Civil Rights Act of 1964 which prohibits
discrimination on the basis of sex, race, color, national origin and
religion, the Civil Rights Act of 1866, the Age Discrimination in
Employment Act which prohibits discrimination on the basis of age
over 40, the California Fair Employment and Housing Act which
prohibits discrimination on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, age over 40, and sex,
the California Labor Code, and wrongful termination claims;
provided, however, that the foregoing release and discharge shall
not apply to those obligations expressly recited to be performed
hereunder, obligations contemplated under the Consulting and Profit
Sharing Agreement or obligations (if any) under the Indemnity
Agreement, Deferred Compensation Plan, the Retirement Income Plan,
or the 401(k) Plan.
In light of the intention of Employee (for himself, his agents,
heirs, successors, assigns, executors and/or administrators) that
this release extend to any and all claims of whatsoever kind or
character, known or unknown, Employee expressly waives any and all
rights granted by California Civil Code Section 1542 (or any other
analogous federal or state law or regulation), and does so
understanding and acknowledging the significance and consequence of
such specific waiver of Section 1542. Section 1542 of the Civil Code
of the State of California states as follows:
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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.
Thus, notwithstanding the provisions of Section 1542, and for the
purposes of implementing a full and complete release by Employee,
Employee expressly acknowledges that this Agreement is intended to
include in its effect, without limitation, all claims that Employee
does not know or suspect to exist in his favor at the time of
execution hereof, and that this Agreement contemplates the
extinguishment of any such claim or claims.
b) Employee expressly waives, releases and relinquishes any and
all rights, options and grants under the ISO Agreement and Stock
Option Agreement including, but not limited to, the right to
exercise stock options prior to or on or after the Termination Date;
provided, however, that Employee shall retain the 5,315 vested
shares of Bank Plus restricted common stock that have previously
been issued to Employee under the Restricted Stock Agreement, and
Bank Plus shall waive the restrictions on the 10,629 unvested shares
of such restricted stock. Such shares are subject to any elections
previously made by Employee under the Deferred Compensation Plan.
c) Fidelity shall pay to Employee, on or promptly after the Termination
Date, all accrued and unused vacation hours as of that date at the
rate of Employee's current base salary, not to exceed 200 hours,
less all applicable state and federal taxes and mandatory and
authorized deductions.
d) Employee represents and warrants to the Company that he has not
sold, assigned, hypothecated, pledged or otherwise transferred or
attempted to transfer any claim or right set forth in this
Agreement.
2. COMPANY RELEASE. Each of Bank Plus, Fidelity and Gateway does hereby
and forever release and discharge Employee, from any and all known causes of
action, actions, judgments, liens, debts, contracts, indebtedness, damages,
losses, claims liabilities, rights, interests and demands of whatsoever kind of
character, which either Bank Plus, Fidelity or Gateway has or may have against
Employee by reason of any and all acts, omissions, events or facts occurring or
existing prior to the Termination Date that are actually known to Bank Plus,
Fidelity or Gateway, including, without limitation, all known claims
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attributable to the employment of Employee, all known claims attributable to the
termination of that employment, all known claims asserting breach of an actual
or implied contract, and all known claims arising under any federal, state or
other governmental statute, regulation or ordinance or common law; provided,
however, that the foregoing release and discharge shall not apply to those
obligations expressly recited to be performed hereunder, obligations
contemplated under the Consulting and Profit Sharing Agreement, and obligations,
if any, under the Indemnity Agreement, Deferred Compensation Plan, Retirement
Income Plan and 401(k) Plan. Reference to known matters in the preceding
sentence shall be deemed to mean matters actually known to any director or
member, as of the Termination Date, of the Management Committee (in each case
excluding Employee) of Bank Plus or Fidelity. The releases set forth in this
Section 2 shall not pertain in any nature or degree to any credit card,
mortgage, automobile loan, home equity loan, instant reserve account (overdraft
protection) or other credit or loan relationship, transaction or agreement under
which the Company, or any of the entities which comprise same, is the
creditor/obligee and Employee is the debtor/obligor.
3. INDEMNIFICATION OBLIGATIONS. Notwithstanding the foregoing, each of
Bank Plus, Fidelity and Gateway hereby reaffirms its indemnification obligations
to Employee under the terms of its bylaws and the Indemnity Agreement.
4. NO ADMISSIONS. Nothing contained herein shall be construed as an
admission of any wrongdoing or liability whatsoever by Bank Plus, Fidelity,
Gateway or Employee.
5. CONFIDENTIALITY. As a member of senior management of the Company,
Employee has occupied a position of trust with respect to business information
of a secret or confidential nature. As a material provision of this Agreement,
Employee agrees to maintain in strictest confidence all confidential information
in trust for the Company, its successors and assigns, and Employee agrees to not
misappropriate, disclose, or make available to anyone outside of the Company at
any time any confidential information or anything relating thereto, without the
prior written consent of Bank Plus, which consent may be withheld for any reason
or no reason at all. Employee will forthwith return all copies of information
relating to the Company's businesses, prospects, or confidential information (in
whatever form, including, without limitation, computer diskettes and hard
drives). Employee will also forthwith surrender all other personal property of
the Company in his possession, including, without limitation, access cards,
identification badge, computer(s) (including, but not limited to laptop and
desktop computers, monitors, keyboards, printers, peripherals, and other
computer related equipment), computer password(s), computer software and
cellular telephone(s).
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As used herein, the term "confidential information" shall include,
without limitation, all discounted cash flow analyses; valuations; cost basis
information regarding the Company's assets; matters involving the operation of
the Company's financial models; personal financial and biographical information
regarding directors, officers, employees, and customers of the Company;
communications to and from regulatory agencies (including the Office of Thrift
Supervision, Federal Deposit Insurance Corporation, Securities and Exchange
Commission, Federal Home Loan Bank and any and other federal or state agency
having regulatory oversight over Fidelity, Bank Plus, Gateway or any of their
respective subsidiary or affiliated entities; customer or trade lists; financial
data; trade secrets; marketing plans; marketing studies; training manuals;
software; strategic plans; formulas; and technical information of any kind
learned by Employee during his employment with the Company. The term
"confidential information" shall not include information that (i) is or becomes
available to the public other than as a result of a disclosure by you, (ii) was
within your knowledge from a source other than the Company or its
representative, or was independently developed by you, prior to its disclosure
to you by or on behalf of the Company, provided that such source is not bound by
a confidentiality agreement with the Company or its representative, or (iii)
becomes available to you on a non-confidential basis from a source other than
the Company, provided that such source is not bound by a confidentiality
agreement with the Company or its representative.
6. ENTIRE AGREEMENT. This Agreement constitutes a single integrated
contract expressing the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous oral and
written agreements and discussions with respect to the subject matter hereof.
There are no other agreements, written or oral, express or implied, between the
parties hereto, concerning the subject matter hereof, except as set forth herein
and in the Consulting Agreement. This Agreement may be amended or modified only
by an agreement in writing.
7. WAITING PERIOD AND RIGHT OF REVOCATION. Employee acknowledges that
he is aware that and is hereby advised that he has the right to consider this
Agreement for twenty-one days before signing it, and that if he signs this
Agreement prior to the expiration of twenty-one days, he is waiving this right
freely and voluntarily. Employee also acknowledges that he is aware of and is
hereby advised of his right to revoke this Agreement for a period of seven days
following the signing of this Agreement and that it shall not become effective
or enforceable until the revocation period has expired. To revoke this
Agreement, Employee must notify the Company within seven days of signing it.
8. ATTORNEY ADVICE. Employee acknowledges that he is aware of his right
to consult an attorney, and that he has been advised to consult with an
attorney.
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9. UNDERSTANDING OF AGREEMENT. The parties hereto each state that each
has carefully read this Agreement, that each has had sufficient time and
opportunity to consider its terms and to obtain legal advice relating thereto,
that each fully understands its final and binding effect, that the only promises
made to each of the parties to sign this Agreement are those stated above, and
that each of the parties is signing this Agreement voluntarily.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
BANK PLUS CORPORATION ROBERT P. CONDON
By: /S/ MARK K. MASON /S/ ROBERT P. CONDON
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Name: Mark K. Mason
Title: Chief Executive Officer
FIDELITY FEDERAL BANK,
A FEDERAL SAVINGS BANK
By: /S/ MARK K. MASON
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Name: Mark K. Mason
Title: Chief Executive Officer
GATEWAY INVESTMENT SERVICES, INC.
By: /S/ THOMAS G. NORWOOD
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Name: Thomas G. Norwood
Title: President