Exhibit 10.1


 


SEPARATION AND
CONSULTING AGREEMENT

AND

GENERAL RELEASE OF CLAIMS


 


This
Separation and Consulting Agreement and General Release of Claims (this “Agreement”)
is entered into by and between A. Vincent Siciliano (“Employee”), and 1st
Pacific Bancorp, a California corporation (“Bancorp”) and 1st Pacific Bank of
California, a California state bank (“Bank”) (collectively, Bancorp and Bank
are referred to as the “Employer” or the “Bank”).


 


RECITALS


 


A.                                   Employee
resigns his employment with Employer upon Employee’s execution of this
Agreement.


 


B.                                     Employee
and Employer desire to settle and compromise any and all possible claims
against Employer by Employee arising out of their relationship to date,
including Employee’s employment with 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.  In consideration
of the covenants and releases set forth herein, the Bank agrees to pay
Employee, on the eighth (8) day following Employee’s execution of this
Agreement, a lump sum severance payment of Two Hundred Fifty-Five Thousand
Dollars ($255,000.00), less all applicable state and federal deductions or
withholdings (in each case, the “Payment”), $2,000 of which shall be
consideration for Employee’s Release of ADEA Claims as set forth in Section 11
below.  The check representing the
Payment shall be personally delivered to Employee, or mailed to Employee at his
home address at 411 Hidden Pines Lane, Del Mar, CA  92014.


 


2.                                       Resignation
of Positions Held by Employee. 
Employee shall resign, upon his execution of this Agreement, his
position as the Chief Executive Officer of 1st Pacific Bank of
California and any other offices he holds with either 1st Pacific
Bank of California or 1st Pacific Bancorp, together with his
positions on the Board of either of the two entities.  Employee shall tender such resignations in
writing immediately upon execution of this Agreement.


 


3.                                       Further
Consideration.  As further consideration
for the covenants and releases set forth herein, Employer agrees to provide
Employee with healthcare and life insurance benefits as described in Sections
3.7 and 5.4.4 of Employee’s current employment agreement, for a period of one
year after the date employee signs this Agreement, except as otherwise provided
in this Section 3 and elsewhere in this Agreement.  However, should Employee become re-employed
during that one year period, and if Employee becomes eligible for comparable
health and/or life insurance benefits from a subsequent employer, he will
notify the Employer within seven (7) days. 
Upon Employee’s becoming eligible for such comparable health or life
insurance benefits, the Employer’s obligation to provide further benefits under
this paragraph shall immediately cease as to either health insurance or life
insurance benefits, or both, as the case may be.  During the one year period referenced in this
paragraph, Employee will respond promptly to requests by Employer for
information required for purposes of administering this provision.


 


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4.                                       Other
Consideration.  Employee shall return
the leased vehicle in his possession promptly upon execution of this Agreement
by Employee.


 


5.                                       Vacation
Pay.  Upon execution of this
Agreement, Employer shall pay Employee vacation pay in the amount of 92.02
hours, or $11,281.65, it being agreed by both Employee and Employer that said
amount represents all vacation pay due and owing to Employee.


 


6.                                       Consulting
Services.  Employer will retain
Employee as a consultant and Employee will provide consulting services to the
Employer, under the direction of the Chief Executive Officer of the Bank or his
delegee, for a period of six months (the “Consulting Term”), in order to assist
in the maintenance of Bank’s customer, investor and employee relationships,
including without limitation services of the following types: (a) provision
of specific information regarding the service requirements of specific
customers and their business and financial practices; (b) identification
of and introduction to prospective customers of Bank; (c) advice regarding
specific Bank employee relations and issues; (d) assistance in development
of marketing plans; (e) assistance in fostering continued relationships
with customers of Bank to whom Employee provided services or as to which he was
their primary contact at Bank; (f) assisting in litigation or arbitration
matters involving Bancorp or Bank, including appearing for depositions; (g) assisting
in regulatory relations and (h) performance of special projects as yet
undetermined.


 


a.                                       During
the Consulting Term, Employee shall be available to provide consulting services
to Employer upon reasonable notice and at reasonable times not to exceed 20
hours per month, without further compensation except as provided herein.


 


b.                                      Employee’s
consulting obligation to Employer shall not prevent him from engaging in other
employment, consulting and business relationships, provided these do not breach
any of the other provisions of this Agreement or any other agreement with
Employer or prevent him from providing consulting services hereunder.


 


7.                                       Covenants.  During the Consulting Term, Employee
re-affirms and agrees that he shall comply with his obligations and duties
under Section 6 of the Employment Agreement, except as modified herein,
and, in addition, agrees as follows:


 


(a)                                  Employee
agrees that he shall not in the future use or disclose any “confidential
information” of Employer.  For purposes
of the provision, the term “confidential information” shall include all
non-public information belonging to the Employer and including but not limited
to non-public information regarding the Employer’s customers, employees,
business practices, financial information or projections, internal reports,
strategic plans, customer habits, preferences or needs, proposed acquisitions
or similar transactions; product and service prices; customer charges; contract
negotiations and employee relations matters, in addition to any information
constituting a trade secret as defined by law.


 


(b)                                 Employee
further agrees, for a period of six months beginning with Employee’s last day
of employment, not to solicit any current customer of the Employer with whom
Employee worked or interacted directly while employed by Employer to limit or
discontinue its relationship with Employer.


 


2

















 


(c)                                  Employee
further agrees not to solicit, for one year after Employee’s last day of
employment, any employee of or independent contractor to Employer to cease
being employed by or contracting with Employer.


 


(d)                                 Employee
further agrees, for a period of six months after Employee’s last day of
employment with Employer, not to hire or permit or enable any other person or entity
to hire any person holding any of the following titles on Employee’s last day
of employment with Employer:  (i) Executive
Vice President; (ii) Senior Vice President; (iii) Branch Manager
(regardless of title); (iv) Compliance and Risk Manager; (v) Vice
President-Central Operations; and (vi) Vice President-Loan Administration.


 


(e)                                  Employee
and Employer agree that Section 6.6.1 of Employee’s current Employment
Agreement shall be of no further force or effect as of the date this Agreement
becomes effective; provided, however, that such agreement with regard to Section 6.6.1
shall in no way limit or restrict the application, interpretation or
enforcement of the provisions of this paragraph.


 


8.                                       Liquidated
Damages for Breach by Employee.  In
the event of any breach of any provision of Paragraph 7 above, or of any
provision of Paragraph 6 of Employee’s current employment agreement with
the Bank (other than Section 6.6.1 thereof), or of any other provision of
this Separation and Consulting Agreement, Employee agrees that he will pay to
the Bank liquidated damages in the sum of $255,000.  The parties agree that such liquidated
damages are reasonable under the circumstances existing at the time this
Agreement is entered into for, among other reasons, the fact that, in the event
of such a breach by Employee, it would be difficult to measure the harm to the
Bank from such breach, although the harm would be substantial and irreparable.


 


9.                                       No
Other Consideration.  Employee shall
receive no further or additional consideration in respect of any merger,
acquisition or other transaction involving the Bank which occurs or closes
after the date of Employee’s last day of employment with the Bank.


 


10.                                 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, 


 


3

















 


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 3 of this
Agreement.


 


b.                                      Employee
irrevocably and absolutely agrees that he/she will not prosecute nor allow to
be prosecuted on his/her 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 subsidiary corporations or entities and
all of their respective boards of directors, officers, employees, agents,
volunteers, attorneys, insurers, divisions, successors and assigns will be
absolutely, unconditionally and forever discharged of and from all obligations
to or on behalf of Employee related in any way to the matters discharged
herein.


 


11.                                 Release
of All ADEA Claims.


 


a.                                       This
section of the Agreement exclusively addresses Employee’s release of claims
arising under federal law involving discrimination on the basis of age in
employment (age 40 and above).  This
section is provided separately, in compliance with federal law, including but
not limited to the Older Workers’ Benefit Protection Act of 1990, to ensure
that Employee clearly understands his/her rights so that any release of age
discrimination claims under federal law (the ADEA) is knowing and voluntary on
the part of Employee.


 


b.                                      Employee
represents, acknowledges and agrees that the Employer has advised him/her, in
writing, to discuss this Agreement with an attorney, and to the extent, if any,
that Employee has desired, Employee has done so; that the Employer has given
Employee twenty-one (21) days from receipt of this Agreement to review and
consider this Agreement before signing it, and Employee understands that he may
use as much of this twenty-one (21) day period as he wishes prior to signing;
that no promise, representation, warranty or agreements not contained herein
have been made by or with anyone to cause him to sign this Agreement; that he
has read this Agreement in its entirety, and fully understands and is aware of
its meaning, intent, content and legal effect; and that he is executing this
release voluntarily and free of any duress or coercion.


 


c.                                       The
parties acknowledge that for a period of seven (7) days following the
execution of this Agreement, Employee may revoke the Agreement, and the
Agreement shall not become effective or enforceable until the revocation period
has expired.  This Agreement shall become
effective eight (8) days after it has been signed by Employee and the
Employer, and in the event the parties do not sign on the same date, then this
Agreement shall become effective eight (8) days after the date it is
signed by Employee.


 


d.                                      In
consideration of the separation payment and other benefits made to Employee
described in Section 1 of this Agreement, which Employee would otherwise
not be entitled to except for signing this Agreement, Employee does hereby
unconditionally, 


 


4

















 


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 arising under the ADEA and related
directly or indirectly to Employee’s employment with the Employer and the
termination of said employment.


 


12.                                 Section 1542
Waiver.  Employee does expressly
waive all of the benefits and rights granted to him/her pursuant to California
Civil Code section 1542, which reads:


 


A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OF 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.


 


Employee does
certify that he/she has read all of this Agreement, including the release
provisions contained herein and the quoted Civil Code section, above, and that
he/she fully understands all of the same. 
Employee hereby expressly agrees that this Agreement shall extend and
apply to all unknown, unsuspected and unanticipated injuries and damages
(including, without limitation, those arising under the ADEA), as well as those
injuries and damages that are now disclosed.


 


13.                                 Confidentiality.  Employee agrees that all matters relative to
this Agreement, including the negotiations leading up to this Agreement and its
terms, shall remain confidential. 
Accordingly, Employee hereby agrees that, with the exception of his
spouse, regulatory agencies of the Employer and tax and legal advisors, he will
not discuss, disclose or reveal to any other persons, entities or
organizations, whether within or outside of the Employer, the terms and
conditions of this Agreement.  Employer
agrees that, in the event any third party, other than a regulatory agency,
inquires concerning Employee’s resignation, departure from Employer, or
concerning this Agreement, Employer shall state words to the effect that
Employee resigned his position to pursue other interests.  A breach of this provision shall occur only
if the conduct constituting the breach was conduct by a Director of Employer or
its Chief Executive Officer, Chief Financial Officer or Chief Operating
Officer.


 


14.                                 Ownership
of Options or Stock.  Attached to
this Agreement as Exhibit (“1”) is a chart showing Employee’s ownership of
vested shares of stock in Employer and vested options on such stock.  The parties agree that the attached chart is
accurate and complete.


 


15.                                 Non-Disparagement.  Employee agrees that he will not disparage
the Employer or any of its directors, employees, agents or volunteers or
otherwise interfere with the Employer’s business, vendor or other
relationships.  Employee agrees not to
make any derogatory or adverse statements, written or verbal, to anyone
regarding the Employer or any of its present or former directors, employees,
agents or volunteers.  The Employer
agrees that it will neither disparage Employee nor make any derogatory or
adverse statements, written or verbal, to anyone regarding Employee.  If an arbitrator determines that the Employer
has breached its obligations under this 


 


5

















 


Section 15, to the
extent the Payment has not been paid in full, the Employer shall be required to
make the Payment in full to Employee within five (5) days following such
arbitrator’s determination.  Nothing in
this Section 15 shall prohibit or relate to any statement by any person to
any regulatory agency.


 


16.                                 Entire
Agreement.  The parties further
declare and represent that no promise, inducement or agreement not herein
expressed has been made to them and that this Agreement contains the full and
entire agreement between and among the parties, and that the terms of this
Agreement are contractual and not a mere recital.


 


17.                                 Future
Employment.  Employee agrees that the
Employer will not be obligated to offer employment to him or to hire him for
any reason, regardless of the circumstances, at any time on or after the date
of this Agreement.  Employee agrees that
he will not apply for nor accept any such employment.


 


18.                                 Trade
Secret/Proprietary Information. 
Employee hereby reaffirms his obligations under his Employment Agreement
with the Employer to which this Agreement relates, which shall remain in effect
to the extent provided in the Employment Agreement.  Employee further agrees that he shall not
disclose to any person(s) or entity(ies) at any time or in any manner,
directly or indirectly, any information relating to the operations of the
Employer which has not already been disclosed to the general public.  Employee agrees that this provision includes,
but is not limited to, the following information: proprietary information and/or
trade secrets; secret formulae; customer lists and/or names; product and
service prices; customer charges; contracts; contract negotiations and employee
relations matters.  Employee understands
and agrees that this list is not all-inclusive.


 


19.                                 Return
of Company Property.  Employee agrees
to promptly return all property or information belonging to the Employer,
including all keys, computers, cellular telephones, and any document or
property Employee generated during his employment at the Employer, and agrees
that no such property will be in his possession or control at the time he
receives the consideration specified in Section 1.  This includes all property or information
that may have come into his possession as a result of his employment with the
Employer.  Employee further acknowledges
that he has not retained any copies of any such information.


 


20.                                 Applicable
Law.  The validity, interpretation,
and performance of this Agreement shall be construed and interpreted according
to the laws of the State of California.


 


21.                                 Dispute
Resolution.  Any dispute arising out
of or related to this Agreement shall be resolved through binding arbitration
through JAMS/Endispute in San Diego, California, under the then current
applicable rules of JAMS/Endispute. 
Each party shall be responsible for its or his/her own costs and
attorneys’ fees in connection with the arbitration.


 


22.                                 Complete
Defense.  This Agreement may be
pleaded as a full and complete defense against any action, suit or proceeding
which may be prosecuted, instituted or attempted by either party in breach
thereof.


 


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23.                                 Severability.  If any provision of this Agreement, or part
thereof, is held invalid, void or voidable as against public policy or
otherwise, the invalidity shall not affect other provisions, or parts thereof,
which may be given effect without the invalid provision or part.  To this extent, the provisions, and parts
thereof, of this Agreement are declared to be severable.


 


24.                                 No
Admission of Liability.  It is
understood that this Agreement is not an admission of any liability by the
Employer.


 


25.                                 Successors
and Assigns.  This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns.


 


26.                                 Counterparts.  This Agreement may be signed in
counterparts.  A facsimile signature
shall have the same force and effect as an original signature.


 


Employee and
the Employer have read the foregoing Agreement and know its contents and fully
understand it.  Employee and the Employer
acknowledge that they have fully discussed this Agreement with their respective
attorneys to the extent desired, or have had the opportunity to do so, and
fully understand the consequences of this Agreement.  No party is being influenced by any statement
made by or on behalf of any of the other party to this Agreement.  Employee and the Employer have relied and are
relying solely upon his or its own judgment, belief and knowledge of the
nature, extent, effect and consequences relating to this Agreement and/or upon
the advice of their own legal counsel concerning the consequences of this
Agreement.


 


IN
WITNESS WHEREOF, the undersigned have executed this
Agreement on the dates shown below.


 


 


	
  Dated:  7-3-08

  	
  /s/ A. Vincent Siciliano

  
	
   

  	
  A. Vincent Siciliano

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  1st Pacific Bank of California:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:  July 3, 2008

  	
  By: 

  	
       /s/ Ronald J. Carlson

  
	
   

  	
  Name:  

  	
  Ronald J. Carlson

  
	
   

  	
  Its:  

  	
  Chairman

  
	
   

  	
   

  
	
   

  	
  1st Pacific Bancorp:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:  July 3, 2008

  	
  By: 

  	
       /s/ Ronald J. Carlson

  
	
   

  	
  Name:  

  	
  Ronald J. Carlson

  
	
   

  	
  Its:  

  	
  Chairman

  
				



 


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A. Vincent Siciliano


 


Vested Holdings of 1st Pacific Bancorp Common Stock or Options:  as of July 2, 2008


 


	
   

  	
  1.

  	
  Shares
  of Stock

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
  Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  A. Vincent Siciliano IRA

  	
   

  	
  2,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  A. Vincent Siciliano (Restricted Stock Grant, Vested Portion

  	
   

  	
  2,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  A. Vincent and Susan Siciliano

  	
   

  	
  12,200

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  A. Vincent Siciliano c/f David Siciliano (UGMA)

  	
   

  	
  2,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Total (Split
  Adjusted)

  	
   

  	
  18,700

  	
   

  



 


	
   

  	
  2.

  	
  Options

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Post-Termination

  	
   

  
	
   

  	
   

  	
  Date

  	
   

  	
  Price

  	
   

  	
  Vested

  	
   

  	
   

  	
   

  	
  Exercise
  Period

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  02/14/02

  	
   

  	
  $

  	
  5.00

  	
   

  	
  57,500

  	
   

  	
   

  	
   

  	
   

  	
  2 years

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  12/12/02

  	
   

  	
  $

  	
  5.25

  	
   

  	
  10,000

  	
   

  	
  (ISO)

  	
   

  	
   

  	
  3 months

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  06/17/03

  	
   

  	
  $

  	
  7.98

  	
   

  	
  56,176

  	
   

  	
  (ISO)

  	
   

  	
   

  	
  3 months

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  TOTAL

  	
   

  	
  123,676

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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