<PAGE>
Exhibit 2.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of
the 29th day of February 2000 (the "Agreement Effective Date") by and between
SACRAMENTO COMMERCIAL BANK, a California state-chartered bank corporation
(the "Bank" or the "Employer"), and DARYL B. FOREMAN (the "Employee")
(collectively the "parties").
WHEREAS, Employee has been employed by Employer as President/Chief
Executive Officer pursuant to that certain Employment Agreement dated April
1, 1999, including the Amended and Restated Salary Continuation Agreement
incorporated therein (the "Bank Employment Agreement");
WHEREAS, Employer and Employee desire, as of the Agreement
Effective Date, to cancel, rescind, supercede and terminate the Bank
Employment Agreement and any and all other previously executed employment
and/or salary continuation agreements between Employee and Employer (the
"Prior Agreements");
WHEREAS, the parties hereto desire to enter into a new agreement,
as of the Agreement Effective Date, for the purpose of continuing the
services of Employee for Employer as its President/Chief Executive Officer;
WHEREAS, Placer Capital Co. ("PCC") and the Bank are subsidiaries
of California Community Bancshares, Inc. ("CCB"); and
WHEREAS, CCB and PCC have determined that it is in their
respective best interests and in the best interests and to the
advantage of their respective shareholders, for PCC to grant options to the
directors, officers and employees of CCB, PCC, the Bank and other affiliates
of CCB and PCC in consideration of CCB agreeing to assume such options upon
the occurrence of such certain events as set forth in that certain Assumption
Agreement By and Between California Community Bancshares, Inc. and Placer
Capital Co. (the "Assumption Agreement"); and,
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
1. TERMINATION OF BANK EMPLOYMENT AGREEMENT. Employer and
Employee agree that the Bank Employment Agreement is hereby canceled,
terminated, rescinded and superceded
1
<PAGE>
that Employee has received all amounts due and owing under the Bank
Employment Agreement and Employer has no obligations thereunder and Employee
hereby releases Employer from any and all claims, debts or obligations under
the Bank Employment Agreement and the Prior Agreements.
2. EMPLOYMENT AND DUTIES. Employer and Employee hereby
enter into this Agreement upon the terms and conditions hereinafter set
forth. Employee is hereby employed, at the pleasure of the Board of Directors
of the Bank (the "Board"), as President/Chief Executive Officer. Employee
shall perform the customary duties of a President/Chief Executive Officer, of
a California state-chartered banking corporation and such attendant duties as
may, from time to time, be reasonably requested of Employee by the Board. In
connection with Employee's employment as President/Chief Executive Officer,
Employee's duties shall include, if so elected, serving without compensation
on the Board of Directors of Employer.
3. EXTENT OF SERVICES.
(a) Employee shall devote Employee's full time, ability and
attention to the business of Employer during the term of this Agreement, and
shall neither directly nor indirectly render any services of a business,
commercial or professional nature to any other person, firm, corporation or
organization for compensation without the prior written consent of the Board
or Chairman of the Board.
(b) Nothing contained herein shall be construed to prevent
Employee from investing Employee's assets in any form or manner which does
not in any manner or for any amount of time interfere with Employee's
performance of services on behalf of Employer.
4. TERM OF EMPLOYMENT. Subject to a mutual, written
extension of the Employment Term, or prior termination of this Agreement as
hereinafter provided in Section 6, Employer hereby employs Employee, and
Employee hereby accepts employment with Employer, for a period of three (3)
years beginning on the Agreement Effective Date and ending on the third
anniversary of the Agreement Effective Date (the "Employment Term"). The Bank
shall provide 90 days written notice to Employee if it intends not to renew
this Agreement at the end of the Employment Term. If the Bank does not
provide 90 days' notice that it does not intend to renew
2
<PAGE>
this Agreement, then the Bank shall pay Employee his then-current Base Salary
for a period of three (3) months after the Employment Term payable in
conformity with the Bank's normal payroll procedures.
5. COMPENSATION AND BENEFITS. In consideration of
Employee's services to Employer during the Employment Term, Employer agrees
to compensate Employee, subject to such limitations as may exist under any
applicable state or federal banking law or regulation, as follows:
(a) BASE COMPENSATION. Employer shall pay or cause to be
paid to Employee a base compensation of $182,000 per year, payable in
conformity with Employer's normal payroll procedures (the "Base Salary"), and
prorated for any partial calendar year in which this Agreement is in effect.
The Base Salary may be increased at the discretion of the Bank Board.
(b) BONUS. Employee shall be eligible to receive an
incentive bonus for each fiscal year of Employment in accordance with the
terms of the certain Executive Compensation Program to be adopted by the Bank
that is no less favorable than the Executive Compensation Program of
California Community Bancshares, Inc. (the "Bank Executive Compensation
Program").
(c) GENERAL EXPENSES. Employer shall, upon submission and
approval of written statements and bills in accordance with the then regular
procedures of Employer, pay or reimburse Employee for any and all necessary,
customary and usual expenses incurred by him while traveling for or on behalf
of Employer, and any and all other necessary, customary or usual expenses
(including entertainment) incurred by Employee for or on behalf of Employer
in the normal course of business, as determined to be appropriate by Employer.
(d) INSURANCE. Employee shall be entitled to participate in
such group life insurance, health and long-term disability plans as are
provided by Employer to its employees and/or senior executives, with such
terms, conditions and contributions as Employer generally provides its other
employees and/or senior executives. In addition, Employee's current stand
alone life insurance and long-term disability plans shall remain in effect
during the term of the Agreement and Employer shall continue to pay such
contributions as are necessary to maintain these plans.
3
<PAGE>
(e) AUTOMOBILE ALLOWANCE. Employer shall provide Employee
with Ten Thousand Eight Hundred Dollars ($10,800) for an automobile allowance
per year. This allowance shall be paid every month in increments of Nine
Hundred Dollars ($900). Employee shall pay all operating expenses of the
automobile. Employee shall procure and maintain an automobile liability
insurance policy on the automobile, with coverage including Employee for at
least a minimum of $300,000 for bodily injury or death to any one person in
any one accident, and $100,000 for property damage in any one accident. The
Employer shall be named as an additional insured and Employee shall provide
Employer copies of policies evidencing insurance and Employer's inclusion as
an additional insured.
(f) VACATION. Employee shall accrue four (4) weeks' paid
vacation leave per calendar year, pro rated on a daily basis for any partial
calendar year in which this Agreement is in effect. Such vacation leave shall
be taken at such time or times as are mutually agreed upon by Employee and
the Board, if appropriate, and in accordance with Employer's vacation leave
policy, provided, that at least two (2) weeks of such vacation shall be taken
consecutively each year. Employee acknowledges that the requirement of two
(2) consecutive weeks of vacation each year is required by sound banking
practice. For each calendar year, the Board shall decide, in its discretion,
either (i) to pay Employee for any unused vacation time for such calendar
year or (ii) to carry over any unused vacation time for such calendar year to
the next calendar year, provided, however, that Employee shall accrue no
additional vacation time at any time that the Employee has accrued and unused
vacation time of six (6) weeks.
(g) OTHER BENEFITS. Employee shall be entitled to
participate during the Employment Term in such other benefits of Employer,
including bonus programs, retirement plans and sick leave plans, if any, as
Employer now or hereafter shall provide for their employees and/or senior
executives generally, in accordance with the applicable terms and conditions
thereof.
(h) STOCK OPTIONS. As more fully set forth in the PCC
Nonstatutory Stock Option Agreement, Employee shall be granted an option to
purchase not less than 44,706 shares of common stock of Employer at an
exercise price of $16.34 per share. The Option shall vest and be exercisable
according to the terms of the PCC Nonstatutory Stock Option Agreement. CCB's
4
<PAGE>
obligations with respect to the stock option awarded to Employee in this
Paragraph 5(h) shall be governed by the terms and conditions of the
Assumption Agreement.
6. TERMINATION OF AGREEMENT. This Agreement may be
terminated with or without cause during the Employment Term in accordance
with this Section 6. In the event of such termination, Employee shall be
released from all obligations under this Agreement, except that Employee
shall remain subject to Sections 8, 9, 14, 15, 16 and 18, and Employer shall
be released from all obligations under this Agreement, except as otherwise
provided in this Section 6 and Sections 14, 15, 16 and 18.
(a) EARLY TERMINATION BY EMPLOYER WITHOUT CAUSE OR BY
EMPLOYEE UPON CHANGE IN TITLE. This Agreement and Employee's employment may
be terminated (i) by Employer without cause, for any reason whatsoever, in
the sole, absolute and unreviewable discretion of Employer, upon written
notice by the Board to Employee; or (ii) by Employee in the event that
Employer changes Employee's title or duties from those contemplated under
Section 2 of this Agreement. In the event of termination pursuant to this
Section 6(a), Employee shall receive a severance payment equal to twelve (12)
months of his then current Base Salary, plus any incentive bonus prorated, if
necessary, for a partial year of employment, less customary withholdings (the
"Severance Pay") as liquidated damages in lieu of any and all claims by
Employee against Employer, and shall be in full and complete satisfaction of
any and all rights which Employee may enjoy hereunder, as consideration for a
full and unconditional release of any and all liability of Employer or any of
its shareholders, benefit plans, affiliated companies, partnerships, limited
partnerships or limited liability companies, and the directors, officers,
employees and agents of such entities and their successors or assigns,
arising out of this Agreement or out of the employment relationship between
Employee and Employer (in the form of Exhibit A, hereafter the "Release"),
except that Employee shall be entitled to receive (i) those benefits, if any,
that have vested by operation of state or federal law or under any written
term of a plan ("Vested Benefits"), and (ii) health care coverage
continuation rights under the consolidated Omnibus Budget Reconciliation Act
of 1985 ("COBRA Rights"). Payment of the Severance Pay is expressly
conditioned upon receipt by Employer of the Executed Release. If
5
<PAGE>
Employee declines to enter into the Release he shall have no right to any
Severance Pay or portion thereof under the Agreement arising out of his
termination of employment pursuant to Section 6(a) herein, but reserves his
right to assert any and all statutory, common law and/or contractual claims
against Employer under the Arbitration section (section 18) of this Agreement.
(b) EARLY TERMINATION BY EMPLOYER FOR CAUSE. This Agreement
and Employee's employment may be terminated for cause by Employer upon
written notice to Employee, and Employee shall not be entitled to receive
compensation or other benefits for any period after termination for cause
except that Employee shall be entitled to receive any Vested Benefits and
COBRA Rights. "For cause" pursuant to this Agreement shall include, but not
be limited to: (i) any act of material dishonesty; (ii) any material breach
of this Agreement or any breach of a fiduciary duty (involving personal
profit); (iii) any habitual neglect of, or habitual negligence in carrying
out, those duties contemplated under Section 2 of this Agreement; (iv) any
willful violation of any law, rule or regulation, which, by virtue of bank
regulatory restrictions imposed as a result thereof, would have a material
adverse effect on the business or financial prospects of Employer; (v) any
conviction of any felony or misdemeanor which may be reasonably interpreted
to be harmful to the Employer's reputation ; (vi) any failure by Employee to
qualify at any time during the Employment Term for any fidelity bond as
described in Section 7 of this Agreement; (vii) the requirement to comply
with any final cease-and-desist order or written agreement with any
applicable state or federal bank regulatory authority which requests or
orders Employee's dismissal or limits Employee's employment duties; (viii)
any conduct which constitutes unfair competition with the Employer or its
affiliates; or (ix) the inducement of any client, customer, agent or employee
to break any contract or terminate the agency or employment relationship with
the Employer or its affiliates. Termination for cause by Employer shall not
constitute a waiver of any remedies which may otherwise be available to
Employer under law, equity, or this Agreement.
(c) EARLY TERMINATION BY EMPLOYEE. Employee may terminate
this Agreement upon ninety (90) days' written notice to Employer. Except as
otherwise provided below by Section 6(f), Employee shall not be entitled to
receive compensation or other benefits under this
6
<PAGE>
Agreement for any period after such early termination by Employee, except any
Vested Benefits and COBRA Rights.
(d) DEATH DURING EMPLOYMENT/EMPLOYEE'S TOTAL PERMANENT
DISABILITY. This Agreement and all benefits hereunder shall terminate
immediately upon the death or total permanent disability of Employee,
provided that such termination of benefits shall not operate to prejudice or
forfeit the rights of any beneficiary or beneficiaries of any life and/or
disability insurance policies on the life of Employee obtained pursuant to
Section 5(d) hereof or any Vested Benefits and COBRA Rights. Employee's
beneficiary or beneficiaries shall receive all accrued salary and incentive
bonus, prorated, if necessary, for a partial fiscal year of employment.
(e) AUTOMATIC TERMINATION UPON CLOSURE OR TAKE-OVER. This
Agreement shall terminate automatically if Bank is closed or taken over by
the California Department of Financial Institutions or by any other
supervisory authority.
(f) MERGER OR CORPORATE DISSOLUTION.
(i) In the event of a (a) merger in which the Bank
is not the surviving corporation a majority of the capital stock of
which is not owned by the sole shareholder of the Bank or an
affiliate thereof; (b) a transfer of all or substantially all of the
assets of Employer; (c) a merger, transfer of assets, or any other
corporate reorganization in which there is a change of ownership of
the outstanding shares of the Bank, between the Bank and its sole
shareholder or between the Bank and any affiliate of its sole
shareholder; (d) any other corporate reorganization in which there is
a change in ownership of the outstanding shares of Employer wherein
more than fifty percent (50%) of the outstanding shares of Employer
is transferred to any other partnership, limited partnership,
corporation, limited liability company, trust or business entity
(collectively a "Change in Control"); or (e) the dissolution of
Employer, this Agreement shall not be terminated, but instead, the
surviving or resulting corporation, the transferee of Employer's
assets, or Employer shall be bound by and shall have the benefit of
the provisions of this Agreement. Notwithstanding the foregoing, in
the event of a Change in Control and in the event that, during the
twelve month period following such Change in Control, except
7
<PAGE>
a Change in Control as defined in 6(f)(i)(c) above, Employee
terminates employment with Employer (pursuant to Section 6(a) above)
following a reduction in the Employee's duties or title, Employee
shall be eligible to receive a single sum payment of the Severance
Pay as defined in Section 6(a) above as liquidated damages in lieu of
any and all claims by Employee against Employer, and shall be in full
and complete satisfaction of any and all rights which Employee may
enjoy hereunder, in consideration for a release of any and all
liability of Employer or any of its affiliates, directors, officers,
employees and agents, arising out of this Agreement, or out of the
employment relationship or termination of the employment relationship
between Employee and Employer, in the form of the Release, except any
Vested Benefits and COBRA Rights. If Employee declines to enter into
the Release, he shall have no right to any Severance Pay or portion
thereof under the Agreement arising out of his termination of
employment pursuant to Section 6(a) hereof, but reserves his right to
assert any and all statutory, common law and/or contractual claims
against Employer under the Arbitration section (section 18) of this
Agreement.
(ii) Notwithstanding anything to the contrary provided
herein, if the Employer is not the surviving entity in any
transaction referred to in this Section 6(f) hereof and said
transaction is in any manner the result of any action taken at the
direction of any supervisory authority whatsoever, then in such event
this Agreement shall terminate immediately upon the consummation of
such transaction and Employee agrees that all rights, duties,
obligations, and benefits herein contained shall thereupon terminate
and that Employee shall be entitled to no further compensation or
benefits from Employer, except any Vested Benefits and COBRA Rights.
7. FIDELITY BOND. Employee agrees that he will furnish all
information and take any other steps necessary to enable Employer to obtain
or maintain a fidelity bond conditional on the rendering of a true account by
Employee of all monies, goods, or other property which may come into the
custody, charge or possession of Employee during the term of Employee's
employment. The surety company issuing the bond and the amount of the bond
must be acceptable to
8
<PAGE>
Employer and satisfy all banking laws and regulations. All premiums on the
bond are to be paid by Employer. If Employee cannot qualify for a fidelity
bond at any time during the term of this Agreement, Employer shall have the
option to terminate this Agreement immediately, which shall constitute a
termination for cause as defined in Section 6(b) hereof.
8. PRINTED MATERIAL. All written or printed materials
which shall include, but not be limited to, computer software, programs and
files, used by Employee in performing duties for Employer are, and shall
remain, the property of Employer, provided that any materials which belonged
personally to Employee prior to his employment with Employer are, and shall
remain, the property of Employee. Upon termination of Employee's employment
with Employer, Employee shall return such applicable written or printed
materials to Employer.
9. DISCLOSURE OF INFORMATION. Employee recognizes and
acknowledges that Employer possesses trade secrets and other confidential
and/or proprietary information concerning its business affairs and methods of
operation which constitute valuable, confidential, and unique assets of its
business and that of its affiliates ("Proprietary Information"), which
Employer has developed through a substantial expenditure of time and money
and which is and will continue to be utilized in Employer's business and
which are not generally known in the trade. At any time before or after
termination of this Agreement, Employee agrees not to disclose to anyone any
Proprietary Information and not to make use of any Proprietary Information
for his own purposes or for the benefit of anyone other than Employer under
any circumstances. For purposes of this Section 9, Proprietary Information
includes, without limitation, all information regarding products, services,
processes, know-how, customers, suppliers, product and/or service
development, business and capital plans, research, finances, marketing,
pricing, costs and any other confidential matters relating to Employer or any
affiliate of Employer. Employee recognizes and acknowledges that all
financial information concerning any of Employer's customers, products or
financial results is strictly confidential, and Employee shall not, at any
time before or after termination of this Agreement, disclose to anyone any
such information or any part thereof, for any reason or purpose whatsoever
except to the extent that such information is already otherwise publicly
available or to the extent such disclosure is
9
<PAGE>
required by Employee in order to comply with judicial process or
applicable regulations of any state or federal bank regulatory agency.
Employee hereby acknowledges the particular value to Employer of
this Section 9, the loss of which cannot be reasonably or adequately
compensated in an action at law or in arbitration. Therefore, Employee
expressly agrees that Employer, in addition to any other rights or remedies
that Employer shall possess, shall be entitled to injunctive and other
equitable relief to prevent or remedy a breach of this Section 9 by Employee,
without the necessity of posting any bond.
Employee's obligation under this Section 9 shall survive the
termination of this Agreement and/or the termination of employment.
10. NOTICES. Any notices to be given hereunder by either
party to the other may be effected in writing either by personal delivery or
by mail, registered or certified, postage prepaid with return receipt
requested. Notices to Employer shall be given to Employer at its then current
principal office, c/o Chairman of the Board. Notices to Employee shall be
sent to Employee's then current personal residence. Notices delivered
personally shall be deemed communicated as of actual receipt; mailed notices
shall be deemed communicated as of five (5) calendar days after mailing.
11. ENTIRE AGREEMENT. This Agreement supercedes any and all
other agreements, either oral or in writing, between the parties hereto with
respect to the employment of Employee by Employer (including without
limitation the Bank Employment Agreement and the Prior Agreements which are
hereby canceled, superceded and terminated) and contains all of the
covenants, rights, obligations and agreements between the parties with
respect to such employment. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are
not embodied herein, and that no other agreements, statement or promise not
contained in this Agreement shall be valid and binding. Any modification of
this Agreement will be effective only if it is in writing signed by all
parties to the Agreement.
12. SEVERABILITY. In the event that any term or condition
contained in this Agreement
10
<PAGE>
shall, for any reason, be held by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other term or condition of this
Agreement, but this Agreement shall be construed as if such invalid or
illegal or unenforceable term or condition had never been contained herein.
13. CHOICE OF LAW AND FORUM. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California, except to the extent preempted by the laws of the United States.
Any action or proceeding brought upon, or arising out of, this Agreement of
its termination shall be brought in a forum located within the County of
Sacramento, State of California, and Employee hereby agrees to be subject to
service of process in California.
14. WAIVER. The parties hereto shall not be deemed to have
waived any of their respective rights under this Agreement unless the waiver
is in writing and signed by such waiving party. No delay in exercising any
rights shall be a waiver nor shall a waiver on one occasion operate as a
waiver of such right on a future occasion.
15. INDEMNIFICATION. Employer shall indemnify, defend, and
hold harmless Employee, to the maximum extent permitted under the articles of
incorporation and bylaws of Employer and governing laws and regulations,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by Employee in connection
with any threatened or pending action, suit or proceeding to which Employee
is made a party by reason of his position as an employee, officer or agent of
Employer or by reason of his service at the request of Employer, if Employee
acting in good faith in the course and scope of his employment and in a
manner believed to be in or not opposed to the best interests of Employer.
Nothing in this Indemnification section shall interfere with or restrict the
right of Employee to statutory indemnification under the laws of the State of
California including but not limited to those rights provided in California
Labor Code section 2802 and California Corporations Code section 317, and any
amendments thereto. Furthermore, this Indemnification section shall not in
any way restrict or interfere with any equitable or implied rights of
indemnity to which Employee may be entitled under the common law of the State
of California. If available at rates determined by Employer, in their sole
discretion, to be reasonable, Employer shall
11
<PAGE>
endeavor to apply for and obtain directors' and officers' liability insurance
to indemnify and insure Employer and Employee from such liability or loss.
Notwithstanding the foregoing, in any administrative proceeding or
civil action initiated by any federal or state banking agency, Employer may
only reimburse, indemnify or hold harmless Employee if Employer is in
compliance with any applicable statute, rule, regulation or policy of the
Federal Deposit Insurance Corporation, the California Department of Financial
Institutions, or any other state or federal bank regulatory agency which then
has jurisdiction over Employer regarding permissible indemnification payments.
16. ASSIGNMENT. Neither this Agreement nor any of the
rights or benefits hereunder shall be subject to execution, attachment or
similar process, nor may this Agreement or any rights or benefits hereunder
be assigned, transferred, pledged or hypothecated without the written consent
of both parties hereto, except as provided in Section 6(d) hereof.
17. CAPTIONS AND PARAGRAPH HEADINGS. Captions and paragraph
headings used herein are for convenience and ready reference only and are not
a part of this Agreement and shall not be used in the construction or
interpretation thereof.
18. ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, the alleged breach of this Agreement, or
Employee's employment with Employer or the termination of the employment
relationship between Employee and Employer, shall be settled by arbitration
in accordance with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association, and judgment on the award
rendered by the arbitrators may be entered in any court having jurisdiction.
There shall be three arbitrators, one to be chosen directly by each party,
and the third arbitrator to be selected by the two arbitrators so chosen. If
any arbitration proceeding is brought for the enforcement of this Agreement
or because of an alleged dispute, breach or default in connection with this
Agreement, (i) the non-prevailing party shall pay the fees of the arbitrators
and all other costs of the arbitration, including the cost of any record or
transcripts of the arbitrations and administrative fees; and (ii) the
prevailing party shall be entitled to recover reasonable attorneys' fees and
any other costs and expenses incurred in that action or proceeding, in
addition to any other relief to which it or he may be entitled. The parties
12
<PAGE>
acknowledge that they intend that the controversies and claims to be
arbitrated under this Section 18 be construed as broadly as possible under
applicable law. This Section 18 shall not apply to a breach or alleged breach
of Section 9 of the Agreement by Employee.
19. WITHHOLDING. Any payments provided for hereunder shall
be paid net of any applicable withholding required under federal, state or
local law and any additional withholding to which you have agreed.
EXECUTED as of the 29th day of February, 2000.
EMPLOYER: EMPLOYEE:
SACRAMENTO COMMERCIAL BANK
By: /s/ Ronald W. Bachli /s/ Daryl B. Foreman
---------------------------------- ---------------------------
Chairman of the Board of Directors DARYL B. FOREMAN
California Community Bancshares, Inc. ("CCB") hereby ratifies and
confirms the commitments set forth in Paragraph 5(h) of this Agreement to
provide Employee an Option to purchase common stock of CCB pursuant to the
terms of the Assumption Agreement.
CALIFORNIA COMMUNITY BANCSHARES, INC.
By: /s/ Richard W. Decker, Jr.
----------------------------------
Chairman of the Board
13
<PAGE>
EXHIBIT A
RELEASE AGREEMENT
This Release Agreement ("Release") was given to me, DARYL B.
FOREMAN ("Employee"), this ____ day of ___________, _____, by SACRAMENTO
COMMERCIAL BANK and its benefit plans, shareholders, parent companies,
partnerships, limited partnerships, limited liability companies and any and
all of its other affiliates, and the directors, officers, employees, agents,
insurers, underwriters and subsidiaries, and the predecessors, successors and
assigns of each such individuals and entities (the "Bank" or "Employer"). At
such time as this Release becomes effective and enforceable (i.e., the
revocation period discussed below has expired), and assuming such Employee is
otherwise eligible for payments under the terms of that certain Employment
Agreement between Employee and Employer dated February 29, 2000 (the
"Agreement"), Employer agrees to pay Employee pursuant to the terms of the
Agreement an amount equal to $_________ (minus customary payroll deductions
and any outstanding obligations owed by the Employee to Employer), and to
provide any Vested Benefits and/or COBRA Rights, as these terms are defined
in the Agreement.
In consideration of the receipt of the promise to pay such amount,
Employee hereby agrees, for himself or his heirs, executors, administrators,
successors and assigns (hereinafter referred to as the "Releasors"), to fully
release and discharge Employer and its benefit plans, officers, directors,
employees, shareholders, partners, limited partners, parent companies,
partnerships, limited liability companies and any and all of its other
affiliates, and the officers, directors, employees, agents, insurers,
underwriters, subsidiaries, affiliates, and the predecessors, successors and
assigns, and each such individual and entity (hereinafter referred to as the
"Releasees") from any and all actions, causes of action, claims, obligations,
costs, losses, liabilities, damages and demands under any federal, state or
local law or laws, or common law, whether or not known, suspected or claimed,
which the Releasors have, or hereafter may have, against the Releasees,
arising out of or in any way related to the Agreement, Employee's employment
or termination of employment with Employer.
It is understood and agreed that this Release extends to all such
claims and/or potential
<PAGE>
claims, and that Employee, on behalf of the Releasors, hereby expressly
waives all rights with respect to all such claims under California Civil Code
Section 1542, which provides as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her
favor at the time of executing the release, which if known
by him or her must have materially affected his or her
settlement with the debtor.
It is further understood and agreed that this Release may include
claims and rights Employee might have under the Age Discrimination in
Employment Act ("ADEA"). The Employee's waiver of rights under the ADEA does
not extend to claims or rights that might arise after the date this Release
is executed. The monies to be paid to the Employee in this Release are in
addition to any sums to which he would be entitled without signing this
Release. For a period of seven (7) days following execution of this Release,
Employee may revoke the terms of this Release by a written document received
by the Employer on or before the end of the seven (7) day period. The Release
will not be final until said revocation period has expired. No payments will
be made under the Agreement if the Employee revokes this Release.
Employee executes this Release without reliance on any
representation by any Releasee. Employee acknowledges that he has read and
does understand the provisions of the Release set forth in the preceding
paragraph, that he has had an opportunity to consult with an attorney prior
to executing this Release, that he was given twenty-one (21) days in which to
consider entering into this Release, that he affixes his signature hereto
voluntarily and without coercion, and that no promise or inducement has been
made other than those set out in this Release. This document does not
constitute, and shall not be admissible as evidence of, an admission by any
Releasee as to any fact or matter.
In case any party of this Release is later deemed to be invalid,
illegal or otherwise unenforceable, Employee agrees that the legality and
enforceability of the remaining provisions of this Release will not be
affected in any way.
Dated:
------------------------------- ---------------------------------
Daryl B. Foreman
