Exhibit 10.7


 


EMPLOYMENT AGREEMENT


 


This Agreement is made
and entered into on January 22, 2009, by and among Bank of Manhattan, N.A.
(the “Bank”) and Rick Sowers (“Executive”) for the purposes set forth
hereinafter (“Agreement”).


 


W I T N E S S E T H


 


WHEREAS, the Bank is a
national banking association subject to the supervision and regulation of the
Office of the Comptroller of the Currency (“OCC”);


 


WHEREAS, Executive has
been named Executive Vice President and Chief Operating Officer of the Bank;
and


 


WHEREAS, it is the
intention of the parties to enter into an employment agreement for the purposes
of assuring the continued services of Executive as Executive Vice President and
Chief Operating Officer of the Bank.


 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained herein, the Bank
and Executive agree as follows:


 


A.                                   TERM OF EMPLOYMENT


 


The term of this Agreement (“Term”)
shall commence January 22, 2009, the date the Bank opened for business
(the “Effective Date”), and January 22,
2012.  Where used herein, “Term” shall
refer to the entire period of employment of Executive by the Bank hereunder,
whether for the period provided above, or whether terminated earlier as
hereinafter provided.  This does not
replace or impair the Stock Option Agreements between Manhattan Bancorp (“MB”),
the parent company of the Bank and Executive dated June 30, 2008, and November 20,
2008 (the “Stock Option Agreements”),
which shall remain in full force and effect.


 


B.                                     DUTIES OF EXECUTIVE


 


1.                                       Duties.  Executive shall perform the duties of
Executive Vice President and Chief Operating Officer of the Bank, reporting
directly to the President and Chief Executive Officer of the Bank, and subject,
at all times, to the powers vested by law in the Board (the “Board”) of the Bank and their respective shareholders.   During the Term, Executive shall perform the
services herein contemplated to be performed by Executive faithfully,
diligently and to the best of Executive’s ability, consistent with the highest
and best standards of the banking industry and in compliance with all
applicable laws and the Bank’s Articles of Association or Incorporation, Bylaws
and internal written policies.


 


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2.                                       Conflicts of Interest.  Except as permitted by the prior written
consent of the Board of Bank, Executive shall devote Executive’s entire
productive time, ability and attention to the business of the Bank during the
Term and Executive shall not directly or indirectly render any services of a
business, commercial or professional nature, to any other person, firm or
corporation, whether for compensation or otherwise, which are in conflict with
the Bank’s interests.  Notwithstanding
the foregoing, Executive may make investments of a passive nature in any
business or venture, provided that such business or venture is not in
competition, directly or indirectly, in any manner with the Bank.


 


C.                                     COMPENSATION


 


1.                                       Salary.  For Executive’s services hereunder, the Bank
shall pay or cause to be paid as annual base salary (the “Base Salary”) to Executive not less than
One Hundred Eighty-Five Thousand Dollars ($185,000) for the first year of the
Term, with annual increases in the discretion of the Board or the Bank’s
Compensation Committees.  Base Salary
shall be payable in equal installments in conformity with the Bank’s normal
payroll period.


 


2.                                       Bonuses. Any bonuses shall be as
determined by the Board of the Bank in their sole discretion.  This agreement does not nullify any previous
understanding related to the 2009 bonus guaranteed under Executive’s offer
letter.


 


D.                                    EXECUTIVE BENEFITS


 


1.                                       Vacation.  Executive shall be entitled to vacation
during each year of the Term consistent with the Bank’s approved vacation
schedule and policy, which shall provide Executive with not less than four (4) weeks
vacation for each year of the Term. 
Executive is encouraged to use all accrued vacation benefits and will be
expected to take vacation in the year it is earned.  Accrual of any unused vacation shall be
determined in accordance with the Bank’s Personnel Policy as in effect from
time to time and shall be subject to any limitations set forth therein.


 


2.                                       Group Medical and Other Insurance Benefits.  The Bank shall provide for
Executive, at the Bank’s expense, group medical and other insurance benefits in
accordance with the Bank’s Personnel Policy as in effect from time to
time.  All coverage under this paragraph
shall be in existence or shall take effect as of the Effective Date
hereof.  The Bank’s liability to
Executive for any breach of this paragraph shall be limited to the amount of
premiums required hereunder to be payable by the Bank to obtain or maintain, as
applicable, the coverage contemplated herein.


 


3.                                       Stock Option. MB has granted
Executive under the Stock Option Agreements an option to purchase 52,000 of
shares of MB’s authorized but unissued Common Stock.  Such option has a term of ten (10) years
and shall vest in three installments of 33.33% per year over a period of three (3) years,
with the first such installment to vest one year from the date of grant, and
with subsequent installments vesting two and three years thereafter.  To the maximum extent permitted by law, the
option will qualify as an “incentive stock option” within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended.  Such stock 


 


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option has been granted to Executive, pursuant to MB’s Stock Option
Plan (the “Plan”) and the Stock
Option Agreement.


 


4.                                       Auto Allowance.  During the Term, Executive shall be entitled
to receive One Thousand Dollars ($1,000) per month as a car allowance.


 


E.                                     REIMBURSEMENT FOR BUSINESS
EXPENSES


 


Executive shall be entitled to reimbursement by the Bank for any
ordinary and necessary business expenses incurred by Executive in the
performance of Executive’s duties in accordance with the Bank’s reimbursement
policies in effect from time to time, provided that each such expenditure is of
a nature qualifying it as a proper deduction on the federal and state income
tax returns of the Bank as a business expense and not as deductible
compensation to Executive; and Executive furnishes to the Bank adequate records
and other documentary evidence required by federal and state statutes and
regulations issued by the appropriate taxing authorities for the substantiation
of such expenditures as deductible business expenses of the Bank and not as
deductible compensation to Executive.


 


F.                                      TERMINATION


 


1.                                       Termination for Cause.  The Bank may terminate this Agreement at any
time by action of its Board for cause (“Cause”).  For purposes of this Agreement termination
for “Cause” shall mean termination because of Executive’s personal dishonesty,
incompetence, willful misconduct, any breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order or material breach of any
provision of this Agreement.  For
purposes of this Agreement, no act, or the failure to act, on Executive’s part
shall be considered “willful” unless done, or omitted to be done, not in good
faith and without reasonable belief that the action or omission was in the best
interests of the Bank.  Termination under
this Paragraph shall not prejudice any remedy that the Bank may have at law, in
equity, or under this Agreement.


 


2.                                       Death or Disability.  In the event of Executive’s death or if
Executive is found to be physically or mentally disabled (as hereinafter
defined) by the Board of Bank in good faith, this Agreement shall terminate
without any further liability or obligation by the Bank to Executive.  For purposes of this Agreement only, physical
or mental disability shall be defined as Executive having been unable to fully
perform under this Agreement for a continuous period of ninety (90) days or a
cumulative period of one-hundred eighty (180) days in any calendar year, or, if
applicable, such other periods as may be defined in the Bank’s Personnel Policy
or in applicable disability insurance policies as in effect from time to
time.  If there should be a dispute
between the Bank and Executive as to Executive’s physical or mental disability
for purposes of this Agreement, the question shall be settled by the opinion of
an impartial reputable physician or psychiatrist agreed upon by the parties or
their representatives, or if the parties cannot agree within ten (10) days
after a request for designation of such party, then by a physician or
psychiatrist designated by the Los Angeles County Medical Association.  The certification of such physician or
psychiatrist as to the question in dispute shall be final and 


 


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binding upon the parties hereto. 
The Bank shall bear the costs of such physician or psychiatrist selected
to determine such matter.


 


3.                                       Supervisory Matters.  If Executive is suspended and/or temporarily
prohibited from participating in the conduct of the Bank’s affairs by notice served
under Section 8(e)(3) or 8(g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. Section 1818(e)(3) and (g)(1)), the Bank’s
obligations under this Agreement shall be suspended as of the date of service,
unless stayed by appropriate proceedings. 
If the charges in the notice are dismissed, the Bank may in its
discretion:  (i) pay Executive all
or part of the compensation withheld while its obligations under this Agreement
were suspended; and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.  If
Executive is removed and/or permanently prohibited from participating in the
conduct of the Bank’s affairs by an order issued under Section 8(e)(3) or
i(g)(1) of the Federal Deposit Insurance Act (12 U.S.C. Section 1818(e)(3) or
(g)(1)), all obligations of the Bank under this Agreement shall terminate as of
the effective date of the order, but vested rights of the parties shall not be
affected.  If the Bank is in default (as
defined in Section 3(x)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1813(x)(1)), all obligations under this Agreement shall
terminate as of the date of default, but vested rights of the parties shall not
be affected.  All obligations under this
Agreement shall be terminated, except to the extent that it is determined that
continuation of the Agreement is necessary for the continued operation of the
Bank; (i) by the Federal Deposit Insurance Corporation at the time that
the Federal Deposit Insurance Corporation enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in Section 11
of the Federal Deposit Insurance Act (12 U.S.C. Section 1821); or (ii) by
the Federal Deposit Insurance Corporation or the United States Comptroller of
the Currency or his or her designee, at the time that the Federal Deposit
Insurance Corporation or the United States Comptroller of the Currency or his
or her designee approves a supervisory merger to resolve problems related to
the operation of the Bank or when the Bank is in an unsafe or unsound
condition.  All rights of the parties
that have already vested, however, shall not be affected by such action.


 


4.                                       Termination Without Cause.  Notwithstanding anything to the contrary
contained herein, it is agreed by the parties hereto that the Bank may at any
time without Cause and for any reason immediately terminate this Agreement and
Executive’s employment by the Bank by action of their respective Boards.  Upon such termination by the Bank all
benefits provided by the Bank hereunder to Executive shall thereupon cease,
except as provided in this Subparagraph F.4 or Subparagraph F.5, and Executive
shall be deemed to have voluntarily resigned as a director, officer and
employee of the Bank and any corporation, partnership, venture, limited
liability company or other entity controlled by, controlling or under common
control with the Bank or MB, and shall deliver such written resignation as Bank
may request.  Notwithstanding the
foregoing, it is agreed that in the event of such termination without Cause by
the Bank upon the delivery to the Bank by Executive of a waiver and release in
substantially the form of Attachment “A” to this Agreement, and
Executive’s compliance with the terms thereof, Executive shall be entitled to,
upon the effective date of termination, payment of a lump sum equivalent to
twelve (12) months’ base salary as such base salary is in effect on the date of
termination of employment, plus continuation of Executive’s medical benefits
for a period of twelve (12) months following such termination, with Bank
continuing to pay Executive’s share of premiums and associated costs as if
Executive continued to be employed with the Bank; 


 


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provided, however, that the Bank’s obligation to provide
such coverage shall be terminated if Executive is eligible to receive
comparable substitute coverage from another employer at any time during such
twelve-month period.  Executive agrees to
advise the Bank immediately if such comparable substitute coverage is available
from another employer.  Notwithstanding
any provision to the contrary in this Subparagraph F.4, no severance benefits
shall be payable to Executive hereunder if Executive’s employment is terminated
for any of the reasons delineated in Subparagraphs F.1, F.2 or F.3 hereof or
while grounds for termination under such Subparagraphs exist, and no severance
benefits shall be payable to Executive under this Subparagraph F.4 if payments
are required to be made to Executive under Subparagraph F.5 hereof.


 


5.                                       Termination Following Change in Control.


 


(a)                                  In the event a
Change in Control of the Bank or MB occurs (as defined below) and Executive’s
employment as Executive Vice President and Chief Operating Officer of the Bank
is terminated without Cause by the Bank, then Executive shall be entitled, upon
such termination of employment and upon delivery to the Bank of an executed
waiver and release in substantially the form of Attachment “A” to this
Agreement, to payment of a lump sum equivalent to one (1) times the
highest annual cash compensation amount paid to Executive by the Bank within
the three years preceding the Change in Control and to the continuation of
Executive’s coverage under the group medical care provided at the time of
termination for a period of twelve (12) months following such termination;
provided, however, that the Bank’s obligation to provide such coverage shall be
terminated if Executive obtains comparable substitute coverage from another
employer at any time during such 12-month period.  Executive agrees to advise the Bank
immediately if such comparable substitute coverage is obtained from another
employer.  Notwithstanding any provision
to the contrary in this Subparagraph F.5, no severance benefits shall be
payable to Executive hereunder if Executive’s employment is terminated for any
of the reasons delineated in Subparagraphs F.1, F.2 or F.3 hereof or while
grounds for termination under such Subparagraphs exist.


 


(b)                                 A “Change in Control” of the Bank occurs upon
the effective date of the first to occur of the following events:


 


(i)                                     Merger,
Consolidation, and Other Transactions. 
Any (A) merger where the Bank or MB, or a corporation in which the
Bank’s or MB’s shareholders as constituted immediately prior to the merger do
not own at least 50% of such corporation’s common stock or 50% of the common
stock of the parent of such corporation following such merger in the same
proportions as their ownership interests in the Bank or MB prior to such
transaction, is not the surviving corporation; (B) a transfer of all or a
substantial portion (50% or more) of the assets of the Bank or MB to another
corporation or other person in which the Bank’s or MB’s shareholders as
constituted immediately prior to such transfer do not own at least 50% of the
common stock or 50% of the common stock of the parent of such corporation (or
an equivalent economic interest in the case of a transferee that is not a
corporation) following such transfer in the same proportions as their ownership
interests in the Bank or MB prior to such transaction; or (C) the
liquidation or dissolution of the Bank or MB, except for a liquidation or
dissolution in which the assets and liabilities of the Bank or MB are
transferred to a transferee in which the owners of the Bank’s or MB’s common
stock as constituted immediately prior to the 


 


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transaction own at least 50% of the common stock or 50% of the common
stock of the parent of the transferee (or an equivalent economic interest in
the case of a transferee that is not a corporation) following such liquidation
or dissolution in the same proportions as their ownership interests in the Bank
or MB prior to such transaction; or


 


(ii)                                  Majority
Stockholder.  Any person (as such term is
used in Section 13(d) of the securities Exchange Act of 1934, as
amended (the “Exchange Act”)),
together with its affiliates (but excluding the Bank’s employee benefit plans
and the individuals who were the Bank’s or MB’s officers or directors on the date
of this Agreement or their affiliates), becomes the beneficial owner (within
the meaning of Rule 13(d)(3) under the Exchange Act) of more than 50%
of the Bank’s or MB’s outstanding common stock.


 


(iii)                               Regulatory
Exception.  Notwithstanding anything else
to the contrary set forth herein, a “Change in Control” shall not include any
sale of stock or securities, merger, transfer of assets, consolidation,
liquidation, reorganization or other transaction instituted by or at the
request of the OCC, FRB or the Federal Deposit Insurance Corporation to resolve
any supervisory concerns respecting the Bank or MB.


 


(c)                                  Notwithstanding
anything to the contrary in this Subparagraph F.5, no severance benefits shall
be payable to Executive hereunder if Executive’s employment is terminated for
any of the reasons delineated in Subparagraphs F.1, F.2 or F.3 hereof or while
grounds for termination under such Subparagraphs exist.


 


6.                                       Golden Parachute Limitation.  Severance compensation under Subparagraphs
F.4 and F.5 hereof will be reduced as provided below to avoid the penalties
imposed on “parachute payments” under the Internal Revenue Code of 1986 (the “Code”).


 


(a)                                  If the present
value of all Executive’s severance compensation provided by Bank under
Subparagraph F.4 or F.5 hereof and outside this Agreement is high enough to
cause any such payment to be a “parachute payment” (as defined in Section 280G(b)(2) of
the Code), then one or more of such payments will be reduced by the minimum
amount required to prevent the severance compensation under this Agreement from
being a “parachute payment.”


 


(b)                                 Executive may
direct the Bank regarding the order of reducing severance compensation and
other payments from the Bank to comply with this Subparagraph F.6.


 


7.                                       Section 409A Limitation.  It is the intention of Employer and Executive
that the severance and other benefits payable to Executive under this Agreement
either be exempt from, or otherwise comply with, Section 409A (“Section 409A”) of the Internal Revenue
Code of 1986, as amended. 
Notwithstanding any other term or provision of this Agreement, to the
extent that any provision of this Agreement is determined by Employer, with the
advice of its independent accounting firm or other tax advisors, to be subject
to and not in compliance with Section 409A, including, without limitation,
the definition of “Change in Control” or the timing of commencement and
completion of severance benefit and/or other benefit payments to Executive
hereunder in connection with a merger, recapitalization, sale of shares or
other 


 


6

















 


“Change in Control”, or the amount of any such payments, such
provisions shall be interpreted in the manner required to comply with Section 409A.  Employer and Executive acknowledge and agree
that such interpretation could, among other matters, (i) limit the
circumstances or events that constitute a “change in control;” (ii) delay
for a period of six (6) months or more, or otherwise modify the
commencement of severance and/or other benefit payments; and/or (iii) modify
the completion date of severance and/or other benefit payments.  Employer and Executive further acknowledge
and agree that if, in the judgment of Employer, with the advice of its
independent accounting firm or other tax advisors, amendment of this Agreement
is necessary to comply with Section 409A, Employer and Executive will
negotiate reasonably and in good faith to amend the terms of this Agreement to
the extent necessary so that it complies (with the most limited possible
economic effect on Employer and Executive) with Section 409A.  For example, if this Agreement is subject to Section 409A
and it requires that severance and/or other benefit payments must be delayed
until at least six (6) months after Executive terminates employment, then
Employer and Executive would delay payments and/or promptly seek a written
amendment to this Agreement that would, if permissible under Section 409A,
eliminate any such payments otherwise payable during the first six (6) months
following Executive’s termination of employment and substitute therefore a lump
sum payment or an initial installment payment, as applicable, at the beginning
of the seventh (7th) month following Executive’s termination of employment
which in the case of an initial installment payment would be equal in the
aggregate to the amount of all such payments thus eliminated.


 


G.                                    GENERAL PROVISIONS


 


1.                                       Trade Secrets.  During the Term, Executive will have access
to and become acquainted with what Executive and the Bank acknowledge are trade
secrets, to wit, knowledge or data concerning the Bank, including their
operations and methods of doing business, and the identity of customers of the
Bank, including knowledge of their financial condition and their financial
needs.  Executive shall not disclose any
of the aforesaid trade secrets, directly or indirectly, or use them in any way
either during the Term or thereafter, except as required in the course of
Executive’s employment with the Bank.


 


2.                                       Indemnification.  To the extent permitted by law, applicable
statutes and the Bylaws or resolutions of the Bank in effect from time to time,
the Bank shall indemnify Executive against liability or loss arising out of
Executive’s actual or asserted misfeasance or non-feasance in the performance
of Executive’s duties or out of any actual or asserted wrongful act against, or
by, the Bank including but not limited to judgments, fines, settlements and
legal and other expenses incurred in the defense of actions, proceedings and
appeals therefrom.  However, the Bank
shall have no duty to indemnify Executive with respect to any claim, issue or
matter as to which Executive has been adjudged to be liable to the Bank in the
performance of his duties, unless and only to the extent that the court in
which such action was brought shall determine upon application that, in view of
all of the circumstances of the case, Executive is fairly and reasonably
entitled to indemnification for the expenses which such court shall determine.  The Bank shall endeavor to apply for and
obtain Directors and Officers Liability Insurance to indemnify and insure the
Bank and Executive from and against the aforesaid liabilities.  The provisions of this paragraph shall apply
to the estate, executor, administrator,


 


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heirs, legatees or devisees of Executive.  The obligations of the Bank under this
Subparagraph G.2 shall continue through and after the Term of this Agreement.


 


3.                                       Return of Documents.  Executive expressly agrees that all manuals,
documents, files, reports, studies, instruments or other materials used and/or
developed by Executive during the Term are solely the property of the Bank, and
that Executive has no right, title or interest therein.  Upon termination of this Agreement, Executive
or Executive’s representative shall promptly deliver possession of all of said
property to the Bank in good condition.


 


4.                                       Non-solicitation.  During the Term and for a period of one year
thereafter, Executive shall not, directly or indirectly, engage or participate
in the solicitation or any attempt to solicit employees of the Bank to work for
any person, firm or business.


 


5.                                       Controlling Law.  This Agreement is to be governed by and
construed in accordance with the laws of the United States and, to the extent
not inconsistent therewith, the laws of the State of California.


 


6.                                       Invalid Provisions.  Should any provision of this Agreement for
any reason be declared invalid, void, or unenforceable by a court of competent
jurisdiction, the validity and binding effect of any remaining portion shall
not be affected, and the remaining portions of this Agreement shall remain in
full force and effect as if this Agreement had been executed with said
provision eliminated.


 


7.                                       Entire Agreement.  This Agreement and the Stock Option Agreement
contain the entire agreement of the parties. 
It supersedes any and all other agreements, either oral or in writing,
between the parties hereto with respect to the employment of Executive by the
Bank.  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 agreement,
statement, or promise not contained in this Agreement shall be valid or
binding.  This Agreement may not be
modified or amended by oral agreement, but only by an agreement in writing
signed by both the Bank and Executive.


 


8.                                       Notice.  For the purposes of this Agreement, notices,
demands and all other communications provided for in this Agreement shall be in
writing and shall be personally delivered or (unless otherwise specified)
mailed by United States mail, or sent by facsimile, provided that the facsimile
cover sheet contains a notation of the date and time of transmission, and shall
be deemed received:  (i) if
personally delivered, upon the date of delivery to the address of the person to
receive such notice, (ii) if mailed in accordance with the provisions of
this Subparagraph G.8, three (3) business days after the date placed in
the United States mail, or (iii) if given by facsimile, when sent.  Notices shall be addressed to the Bank at
their main office and to Executive at the address then maintained by the Bank in
its records for Executive or to such other respective addresses as the parties
hereto shall designate to the other by like notice.


 


9.                                       Arbitration.  Any dispute or controversy
arising under or in connection with this Agreement, the inception or termination
of Executive’s employment, or any alleged 


 


8

















 


discrimination or statutory or tort claim related to such employment,
including issues raised regarding the Agreement’s formation, interpretation or
breach, shall be settled exclusively by binding arbitration in Los Angeles,
California in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association (“AAA”). 
Without limiting the foregoing, the following potential claims by
Executive could be subject to arbitration under the Arbitration Agreement:  claims for wages or other compensation due;
claims for breach of any contract or covenant (express or implied) under which
Executive believes he would be entitled to compensation or benefits; tort
claims related to such employment; claims for discrimination and harassment
(including, but not limited to, race, sex, religion, national origin, age,
marital status or medical condition, disability, sexual orientation, or any
other characteristic protected by federal, state or local law); claims for
benefits (except where an employee benefit or pension plan specifies that its
claims procedure shall culminate in an arbitration or other procedure different
from this one); and claims for violation of any public policy, federal, state
or other governmental law, statute, regulation or ordinance.  The arbitration will be conducted in Los
Angeles County.  The arbitration shall
provide for written discovery and depositions adequate to give the parties
access to documents and witnesses that are essential to the dispute.  The arbitrator shall have no authority to add
to or to modify this Agreement, shall apply all applicable law, and shall have
no lesser and no greater remedial authority than would a court of law resolving
the same claim or controversy.  The
arbitrator shall issue a written decision that includes the essential findings
and conclusions upon which the decision is based, which shall be signed and
dated.  Executive and the Bank shall each
bear his or their own costs and attorneys’ fees incurred in conducting the
arbitration and, except in such disputes where Executive assets a claim
otherwise under a state or federal statute prohibiting discrimination in
employment (“a  Statutory Claim”), or unless required
otherwise by applicable law, shall split equally the fees and administrative
costs charged by the arbitrator and AAA between Executive, on the one hand, and
Bank on the other hand.  In disputes where
Executive asserts a Statutory Claim against the Bank, Executive shall be
required to pay only the AAA filing fee to the extent such filing fee does not
exceed the fee to file a complaint in state or federal court.  Executive shall pay the balance of the
arbitrator’s fees and administrative costs. 
Judgment may be entered on the arbitrator’s award in any court having
jurisdiction.


 


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IN
WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the day and year first above
written.


 


 


	
   

  	
   

  	
  BANK OF MANHATTAN, N.A.

  
	
  /s/ Rick L.
  Sowers

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Rick L. Sowers

  	
   

  	
  By:

  	
     /s/ Jeffrey M. Watson

  
	
  Executive

  	
   

  	
   

  	
  Jeffrey M. Watson

  
	
   

  	
   

  	
   

  	
  President & Chief Executive Officer

  
					



 


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WAIVER AND RELEASE AGREEMENT


 


This Waiver and Release
Agreement (the “Waiver Agreement”)
is entered into by and between Rick Sowers (“Employee”)
and Bank of Manhattan, N.A. on their behalf and on behalf of their parents,
subsidiaries, affiliates and successors-in-interest (collectively, “Employer”).


 


RECITALS


 


A.            Employee and Employer have entered into an Employment
Agreement dated as of January 22, 2009 (the “Agreement”).


 


B.            A condition precedent to certain of Employer’s
obligations under the Agreement is the execution of this Waiver Agreement.


 


NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties, intending to be legally
bound, agree and covenant as follows:


 


RELEASE


 


In consideration for the
payment of severance and other compensation under the Agreement, Employee
agrees unconditionally and forever to release and discharge Employer its parents,
subsidiaries, affiliates, successors-in-interest, and their respective
officers, directors, managers, employees, members, shareholders,
representatives, attorneys, agents and assigns from any and all claims,
actions, causes of action, demands, rights or damages of any kind or nature
which Employee may now have, or ever have, whether known or unknown, that arise
out of or in any way relate to Employee’s employment with, or separation from,
Employer on or before the date of execution of this Waiver Agreement.  Employee also confirms his resignation as a
director, officer and employee of Employer and any corporation, partnership,
venture, limited liability company or other entity controlled by, controlling
or under common control with Employer.


 


This release specifically
includes, but is not limited to, any claims for discrimination and/or violation
of any statutes, rules, regulations or ordinances, whether federal, state or
local, including, but not limited to, Title VII of the Civil Rights Act of
1964, as amended, age claims under the Age Discrimination in Employment Act of
1967, as amended by the Older Workers Benefits Protection Act of 1990, the
Employee Retirement Income Security Act of 1974, as amended, the California
Fair Employment and Housing Act, the California Labor Code, the Equal Pay Act,
the Americans With Disabilities Act, the Rehabilitation Act of 1973, the
Racketeer Influenced and Corrupt Organizations Act, the Financial Reform
Recovery and Enforcement Act of 1989, and/or Section 1981 of Title 42 of
the United State Code.


 


Employee further agrees
knowingly to waive the provisions and protections of Section 1542 of the
California Civil Code, which reads:


 


Attachment A


 

















 


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.


 


REPRESENTATIONS OF EMPLOYEE


 


Employee represents and
agrees that, prior to the execution of this Waiver Agreement, Employee has had
the opportunity to discuss the terms of this Waiver Agreement with legal
counsel of Employee’s choosing.


 


Employee affirms that no
promise or inducement was made to cause Employee to enter into this Waiver
Agreement other than the inducements provided in the Agreement.  Employee further confirms that Employee has
not relied upon any other statement or representation by anyone other than what
is in this Waiver Agreement as a basis for Employee’s agreement.


 


MISCELLANEOUS


 


Except for the Agreement
and any other employee benefit plans expressly referred to in the Agreement as
continuing following Employee’s termination of employment with Employer, this
Waiver Agreement sets forth the entire agreement between Employee and Employer,
and shall be binding on both party’s heirs, representatives and
successors.  This Waiver Agreement shall
be construed under the laws of the State of California, both procedurally and
substantively.  If any portion of this
Waiver Agreement is found to be illegal or unenforceable, such action shall not
affect the validity or enforceability of the remaining paragraphs or
subparagraphs of this Waiver Agreement.


 


Employee acknowledges
that Employee has been advised that Employee has twenty-one (21) days to
consider this Waiver Agreement, and that Employee was informed that Employee
has the right to consult with counsel regarding this Waiver Agreement.  To the extent Employee has taken less than
twenty-one (21) days to consider this Waiver Agreement, Employee acknowledges
that Employee has had sufficient time to consider the Waiver Agreement and to
consult with counsel, and that Employee does not desire additional time.


 


This Waiver Agreement is
revocable by Employee for a period of seven (7) days following Employee’s
execution of this Waiver Agreement. The revocation by Employee of this Waiver
Agreement must be in writing, must specifically revoke this Waiver Agreement
and must be received by Employer prior to the eighth (8th) day following the
execution of this Waiver Agreement by Employee. 
This Waiver Agreement becomes effective, enforceable and irrevocable
on the eighth (8th) day following Employee’s execution of the Waiver
Agreement.  No payment will be made to
the undersigned until such date.


 

















 


The undersigned agree to
the terms of this Waiver Agreement and voluntarily enters into it with the
intent to be bound hereby.


 


 


	
  DATED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Rick L. Sowers

  
	
   

  	
   

  	
   

  
	
  DATED:

  	
   

  	
   

  
	
   

  	
   

  	
  Bank of Manhattan, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Jeffrey M. Watson

  
	
   

  	
   

  	
  President & Chief Executive Officer