Exhibit 10.5
TERMINATION OF EMPLOYMENT
AGREEMENT
This Termination of Employment
Agreement (this “Agreement”) is entered into as of
July , 2009 by and between
[ ]
(“Employee”), and 1 st Pacific Bancorp, a California corporation
(“Bancorp”) and 1 st Pacific Bank of California, a California
state bank (“Bank”) (collectively, Bancorp and Bank are
referred to as the “Employer”) and made effective as of
the Effective Time of the Merger (as these terms are defined
below).
RECITALS
A. Employee
commenced employment with the Employer on or about
.
B. In connection
with that certain Agreement and Plan of Merger, dated of even date
herewith, by and among Employer, First Business Bank, N.A., a
national banking association, and FB Bancorp, a California
corporation (the “Merger Agreement”), Employee’s
employment, with Employer will terminate effective as of the
Effective Time of the Merger (as these terms are defined in the
Merger Agreement).
C. Employee and
the Employer desire to settle and compromise any and all possible
claims against the Employer by Employee arising out of their
relationship to date, including Employee’s employment with
the Employer and the termination of Employee’s employment,
and to provide for a general release of any and all such
claims.
AGREEMENT
1.
Separation Pay/Consideration . Employer and Executive
hereby agree: (i) that this Agreement constitutes the new
Exhibit A to the Employment Agreement (as defined below),
superseding any prior version attached as Exhibit A to the
Employment Agreement; and (ii) notwithstanding execution of
this Agreement Executive shall continue to be employed under the
terms of the Employment Agreement until the Effective Time of the
Merger at which time Employer and Executive agree that the
Employment Agreement shall terminate subject to the terms specified
therein and this Agreement shall also become effective. In
consideration of the covenants and releases set forth herein, the
Bank agrees to pay Employee the amount payable to him and the
non-monetary consideration (if any) due him, pursuant to and in
accordance with, Paragraphs 5.2, 5.3 or 5.4, as the case may
be, of the Employment Agreement dated
, 200 , by and between the Employer
and Employee (the “Employment Agreement”), less all
applicable state and federal deductions (in each case, the
“Severance Benefit”), $2,000 of which shall be
consideration for Employee’s release of ADEA claims as set
forth in Section 5, below; provided that no such Severance
Benefit shall be made until at least eight (8) days have past
since Employee’s execution of this Agreement. The check
representing the Severance Benefit shall be mailed to Employee at
his home address at
.
Notwithstanding anything contained herein to the contrary, if
Employee qualifies as a “specified employee ,” as
defined in Section 409A(a)(2)(B)(i) of the Internal
Revenue Code, as amended, payment of the Severance Benefit shall be
delayed for a period of six months from the date of termination of
Employee’s employment and calculated in accordance with
Section 5.3.4 of the Employment Agreement. Payment of
the Severance Benefit hereunder shall be contingent upon the
closing of the Merger as contemplated in the Merger
Agreement.
2.
Regulatory Restrictions . The parties understand and
agree that at the time any payment would otherwise be made or
benefit provided under Section 1 hereof, depending on the
facts and circumstances existing at such time, the satisfaction of
such obligations by the Employer may be deemed by a regulatory
authority to be illegal, an unsafe and unsound practice, or for
some other reason not properly due or payable by the
Employer. Among other things, the regulations at 12 C.F.R.
Part 30, Appendix A promulgated pursuant to
Section 39(a) of the Federal Deposit Insurance Act, and
at 12 C.F.R. Part 359, or similar regulations or regulatory
action following similar principles may apply at such time.
The Employer agrees that to the extent reasonably feasible, it will
in good faith seek to determine the position of the appropriate
regulatory authority in advance of each payment or benefit
otherwise due under this Agreement, including seeking the approval
or acquiescence of the appropriate regulatory authorities, if
required. The parties understand, acknowledge and agree that,
notwithstanding any other provision of this Agreement, the Employer
shall not be obligated to make any payment or provide any benefit
under this Agreement where (i) an appropriate regulatory
authority does not approve or acquiesce as required, or
(ii) the Employer has been informed either orally or in
writing by a representative of the appropriate regulatory authority
that it is the position of such regulatory authority that making
such payment or providing such benefit would constitute an unsafe
and unsound practice, violate a written agreement with the
regulatory authority, violate an applicable rule, law or
regulation, or would cause the representative of the regulatory
authority to recommend enforcement action against the
Employer.
3.
Covenants . During the term of any Section 409A
waiting period, Employee re-affirms and agrees that he shall comply
with his obligations and duties under Section 6 of the
Employment Agreement, except for Paragraph 6.6.1.
4.
Release of All Claims Except Age Discrimination in Employment
Act of 1967 (“ADEA”) Claims.
a. In
consideration of the payment and other benefits described in
Section 1, which Employee would otherwise not be entitled to
except for signing this Agreement, Employee does hereby
unconditionally, irrevocably and absolutely release and discharge
the Employer and any related holding, parent, sister or subsidiary
entities and all of their respective boards of directors, officers,
employees, agents, volunteers, attorneys, insurers, divisions,
successors and assigns from any and all loss, liability, claims,
demands, causes of action or suits of any type, whether in law
and/or in equity, related directly or indirectly, or in any way
connected with any transaction, affairs or occurrences between them
to date, including, but not limited to, Employee’s employment
with the Employer and the termination of said employment.
This Agreement specifically applies, without limitation, to any and
all contract or tort claims, claims for wrongful termination, wage
claims, and claims arising under Title VII of the Civil Rights Act
of 1991, the Americans with Disabilities Act, the Equal Pay Act,
the California Fair Employment and Housing Act, the Fair Labor
Standards Act, the Family and Medical Leave Act, the California
Family Rights Act, the California Labor Code, and any and all
federal or state statutes or provisions governing the employment
relationship or discrimination in employment except the federal
statute specifically excluded hereafter. This release
specifically excludes any and all loss, liability, claims, demands,
causes of action or suits of any type arising under the ADEA.
Employee’s release of ADEA claims will be addressed
separately in Section 5 of this Agreement.
2
b. Employee
irrevocably and absolutely agrees that he will not prosecute nor
allow to be prosecuted on his behalf, in any administrative agency,
whether federal or state, or in any court, whether federal or
state, any claim or demand of any type related to the matters
released above, it being the intention of the parties that with the
execution by Employee of this release, the Employer and any related
holding, parent, sister or subsidi
