EXHIBIT 10.15
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is effective as of the 1st day of October,
2000 (the "Agreement Effective Date"), by and between BANK OF ORANGE COUNTY, a
California corporation (the "Bank" or "Employer"), and XXXXXX X. XXXXXXXX, XX.
(the "Employee") (collectively, the "parties"):
WHEREAS, Employee has been employed by Employer as President and Chief
Operating Officer pursuant to that certain Employment Agreement dated May 1,
1997 between Employer's predecessor, Security First Bank, and Employee (the
"Prior Employment Agreement"); and
WHEREAS, Employer and Employee desire, as of the Agreement Effective Date,
to cancel, supercede and terminate the Prior Employment Agreement, and any and
all other prior understandings, commitments, and/or employment contracts between
them, whether express or implied, if any, and
WHEREAS, the parties hereto desire to enter into a new employment
agreement, as of the Agreement Effective Date, for the purpose of continuing the
services of Employee for Employer in the position of its President and Chief
Executive Officer; and
WHEREAS, Placer Capital Co. ("PCC") and the Bank are subsidiaries of
California Community Bancshares, Inc. ("CCB"); and
WHEREAS, CCB and PCC determined that it was 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 Revised Assumption Agreement By and Between
California Community Bancshares, Inc. and Placer Capital Co. (the "Assumption
Agreement").
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
1. TERMINATION OF PRIOR EMPLOYMENT AGREEMENT. Employer and Employee agree
that the Prior Employment Agreement is hereby canceled, terminated, rescinded
and superceded, that Employee has received all amounts due and owing under the
Prior Employment Agreement and Employer has no obligations thereunder, and
Employee hereby releases Employer from any and all claims, debts or obligations
under the Prior Employment Agreement.
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 and Chief Executive Officer of Employer. Employee shall
perform the customary duties of a President and 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 and Chief Executive Officer,
Employee's duties shall include, if so elected, serving without compensation on
the Board.
3. EXTENT OF SERVICES.
(a) Employee shall devote Employee's full time, ability and attention
to the business of Employer during the Employment Term (as defined below), 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 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 December 31, 2003
(the "Employment Term").
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 $150,000.00 per year, payable in conformity with
Employer's normal payroll procedures (the "Base Salary"), and pro rated for any
partial calendar year in which this Agreement is in effect.
(b) BONUS. Employee shall be eligible to receive an incentive bonus
for each fiscal year of employment in accordance with the terms of the Executive
Compensation Program to be adopted by CCB.
(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. Employee shall have the right, in Employee's discretion, to
designate the beneficiary or beneficiaries of any such insurance.
(e) STOCK OPTIONS. As more fully set forth in that certain PCC
Nonstatutory Stock Option Agreement by and between PCC and Employee, Employee
was granted an option to purchase shares of common stock of PCC. CCB's
obligations with respect to the stock option
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evidenced by said PCC Nonstatutory Stock Option Agreement shall be governed by
the terms and conditions of the Assumption Agreement.
(f) AUTOMOBILE ALLOWANCE. During the Employment Term , Employee shall
be entitled to an automobile allowance of $800 per month (less any customary
withholding and employment taxes). Except for this automobile allowance,
Employer shall not be obligated to pay any other expenditure with respect to the
ownership, registration, operation, insurance or maintenance of Employee's
automobile.
(g) 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 accrued and unused vacation time for such calendar year at the end of the
calendar year in which it was accrued; or (ii) to carry over any accrued and
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.
(h) OTHER BENEFITS. Employee shall be entitled to participate during
the Employment Term in such other benefits of Employer, if any, as Employer now
or hereafter shall provide for its employees and/or senior executives generally,
in accordance with the applicable terms and conditions thereof.
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 resign as a member of the Board,
if a member of the Board, and shall be released from all obligations under this
Agreement, except that Employee shall remain subject to Sections 8, 9, 10(b),
10(c), 14, 16 and 19, and Employer shall be released from all obligations under
this Agreement, except as otherwise provided in this Section 6 and Sections
9(b), 14, 16 and 19.
(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
titles 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
single sum 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 and any and all stock options
previously granted to Employee under any stock option plan of Employer or any
affiliate of Employer and held by Employee at the date of termination shall
become fully vested and shall be exercisable for a period of two (2) years after
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the date of termination (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,
in consideration of 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.
(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. Employee understands and agrees that his satisfactory
performance of this Agreement requires conformance with reasonable standards
of diligence, competence, skill, judgment and efficiency of a person holding
the position of a President and Chief Executive Officer of a California
community bank similar to Employer and as prescribed by any applicable
federal banking laws and regulations, and that failure to conform to such
standards is cause for termination of this Agreement by Employer. "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. Employee shall not
be entitled to receive compensation or other benefits under this Agreement for
any period after such early termination by Employee, except any Vested Benefits
and COBRA Rights.
(d) DEATH DURING EMPLOYMENT. This Agreement and all benefits
hereunder shall terminate immediately upon the death of Employee, provided that
such termination of benefits shall
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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.
(e) DISABILITY. This Agreement and all benefits hereunder shall
terminate if Employee is not able, as a result of an illness or other physical
or mental disability, to perform the essential functions of his position as
required by this Agreement for a period of three (3) consecutive months or in
excess of one hundred eighty (180) days in any one (1) year period,
notwithstanding reasonable accommodation by Employer to Employee's known
physical or mental disability, solely in accordance with, and to the extent
required by, the Americans with Disabilities Act, 29 U.S.C. Sections 12101-213
(the "ADA"), the California Fair Employment and Housing Act (California
Government Code Sections 12900-12996 (the "FEHA"), or any other state or local
law governing the employment of disabled persons (provided such accommodation
would not impose an undue hardship on the operation of Employer's business or a
direct threat to the Employee or others) pursuant to the ADA, the FEHA, or any
other applicable state or local law governing the employment of disabled
persons.
(f) AUTOMATIC TERMINATION UPON CLOSURE OR TAKE-OVER. This Agreement
shall terminate automatically if the Bank is closed or taken over by the
California Department of Financial Institutions or by any other supervisory
authority.
(g) 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 a Change in Control as
defined in 6(g)(i)(c) above, Employee terminates employment with
Employer (pursuant to Section 6(c) 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 of a release of any and all liability of Employer or any
of its affiliates,
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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.
Notwithstanding anything to the contrary provided herein, in the event
the amounts payable to Employee in the event of a Change in Control
would, if they included such termination payments and stock option and
vesting accelerations to be made pursuant to this Section 6(f),
constitute Excess Parachute Payments for purposes of Sections 280G(b)
and 4999 of the Internal Revenue Code of 1986, as amended, ("IRC") or
any successor statute) (after application of IRC Section 280G(b)(4)),
the amount payable under this Section 6(f) shall be reduced by the
amount necessary to cause Employee to receive no Excess Parachute
Payments.
(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(g) and said transaction is in any manner the
result of any action taken at the direction of any governmental
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
moneys, 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
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 are 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
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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
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 the Bank 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
the Bank, in addition to any other rights or remedies that the Bank 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. NON-COMPETITION BY EMPLOYEE: CONSULTING AGREEMENT.
a) Employee shall not, during the Employment Term, directly or
indirectly, either as an employee, employer, consultant, agent,
principal, partner, shareholder, corporate officer, director, or in
any other individual or representative capacity, engage or participate
in any competing bank or financial institution or financial services
business without the prior written consent of the Board; provided,
however, Employee shall not be restricted by this Section from owning
securities of corporations listed on a national securities exchange or
regularly traded by national securities dealers so long as such
investment does not exceed one percent of the market value of the
outstanding securities of such corporation.
b) In the event that this Agreement is terminated pursuant to Section
6(a) or Section 6(c) hereof within twelve (12) months after the
Agreement Effective Date (the "Early Termination Date"), Employee
agrees thereafter to provide consulting services and not to compete
with Employer under the terms and conditions set forth in the
Consulting and Non-Competition Agreement attached hereto as Exhibit B
("Consulting Agreement").
c) Notwithstanding anything to the contrary set forth elsewhere in this
Agreement, Employee agrees that (i) the Consulting Agreement shall
take effect only in the event of and upon the termination of
Employee's employment with Employer pursuant to
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Section 6(a) or 6(c) of this Agreement; and (ii) the obligation of the
Employer to pay fees under the Consulting Agreement is wholly
independent of and shall in no way affect the provisions set forth in
Section 6(a) and/or 6(c) including, without limitation, the Severance
Pay as set forth in Section 6(a) or the provision in Section 6(c)
which provides that Employee shall not be entitled to receive
compensation or other benefits under this Agreement other than any
Vested Benefits and COBRA Rights for any period after early
termination by Employee pursuant to Section 6(c).
11. 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 the Bank at its then current principal office, c/o
Chairman of the Board of Directors. 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.
12. ENTIRE AGREEMENT. This Agreement supersedes 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
Prior Employment Agreement) and contains all of the covenants 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 agreement,
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.
13. SEVERABILITY. In the event that any term or condition contained in
this Agreement 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 non-enforceability 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.
14. 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 or its termination shall be
brought in a forum located within the State of California, and Employee hereby
agrees to be subject to service of process in California.
15. 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.
16. INDEMNIFICATION. Employer shall indemnify 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
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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 officer or agent of Employer or by reason
of his service at the request of Employer, if Employee acted 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. If available at rates determined by
Employer, in its sole discretion, to be reasonable, Employer shall 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 Reserve Board,
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.
17. 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 Sections 5(d) and 6(d) hereof.
18. 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.
19. ARBITRATION. In the event any dispute should arise between the parties
hereto concerning the interpretation of any term of this Agreement, or the
performance of any obligation hereunder, such dispute shall be resolved
exclusively (except as provided by the provisions of this Paragraph) by referral
to arbitration under the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association (the "AAA"). The arbitration
shall be held in Los Angeles, California or at such other location as the
parties agree. In any such dispute, Employee shall be obligated to pay to the
AAA only his own filing fees. All other AAA fees, including arbitrators' fees,
shall be borne by Employer. Notwithstanding the arbitration provisions hereof,
any party hereto shall have the right to seek injunctive relief from any court
of competent jurisdiction for any breach of this Agreement for which injunctive
relief is an appropriate remedy.
20. 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 this first day of October, 2000.
EMPLOYER: EMPLOYEE:
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BANK OF ORANGE COUNTY
By /s/ XXXXXX X. XXXXXX /s/ XXXXXX X. XXXXXXXX, XX.
---------------------------- -----------------------------
Chairman of the Board Xxxxxx X. Xxxxxxxx, Xx.
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California Community Bancshares, Inc. ("CCB") hereby ratifies and confirms
the commitments set forth in Paragraph 5(e) of this Agreement with regard to the
assumption of options granted by PCC to Employee pursuant to the terms of the
Assumption Agreement.
CALIFORNIA COMMUNITY BANCSHARES, INC.
By: /s/ XXXXXXX X. XXXXXX, XX.
---------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
Chairman of the Board
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EXHIBIT A
RELEASE AGREEMENT
This Release Agreement ("Release") was given to me, XXXXXX X. XXXXXXXX, XX.
("Employee"), this _____day of _________ , _______, by BANK OF ORANGE COUNTY 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, subsidiaries and the predecessors, and the 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 October 1, 2000 (the "Agreement"), Employer agree 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 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 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 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 includes 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)
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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 has had the right to consider entering into this Release for a full
twenty-one (21) days from receipt of this Release, and that in executing this
Release after less than a full twenty-one (21) days of consideration, he is
voluntarily and forever waiving his right to consider it for twenty-one (21)
days prior to executing it, 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 part 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:
----------------,---------- -----------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
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EXHIBIT B
CONSULTING AND NON-COMPETITION AGREEMENT
THIS CONSULTING AND NON-COMPETITION AGREEMENT (the "Agreement") is made and
entered into as of this 1st day of October, 2000, by and between BANK OF ORANGE
COUNTY, a California corporation ("Bank") and XXXXXX X. XXXXXXXX, XX.
("Consultant") (collectively, the "Parties").
RECITALS
A. The Bank entered into an employment agreement with Consultant
effective as of October 1, 2000 (the "Employment Agreement") to act as President
and Chief Executive Officer of the Bank.
B. The Bank desires to obtain the services of Consultant in the event
that Consultant's employment with the Bank is terminated under the Employment
Agreement pursuant to Section 6(a) or 6(c) of the Employment Agreement, and
Consultant desires in such event to provide personal services to the Bank;
C. The Bank desires to retain Consultant to serve on an independent
contractor basis; and
D. Consultant will perform such consulting services and not compete with
the Bank's business during the term of this Agreement, provided the Bank agrees
to pay Consultant fees in accordance with the terms and conditions hereinafter
set forth.
In consideration of the services to be performed in the future as well as
the mutual promises and covenants herein contained, it is agreed as follows:
1. CONSULTANT SERVICES; BANK'S RESPONSIBILITIES.
(a) CONSULTANT'S SERVICES. In the event that the Employment Agreement
is terminated pursuant to Section 6(a) or 6(c) of the Employment Agreement (the
"Early Termination Date"), Consultant agrees to provide consulting services as
requested by the Bank including, but not limited to, in the areas of strategic
planning and business development (the "Consulting Services") for the Term (as
defined in Section 2 below). In performing the Consulting Services, the Bank
shall not obligate Consultant to devote more than an average of two (2) hours
per week in providing the Consulting Services. At the request of the Bank, the
Consulting Services may be provided by telephone or at a site or sites other
than at the offices of the Bank.
(b) BANK'S RESPONSIBILITIES. The Bank shall cooperate with Consultant
and provide all information and direction necessary to accomplish the purposes
of this Agreement. The Bank shall provide all administrative facilities and
support necessary for the accomplishment of the Consulting Services.
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2. TERM. Subject to the provisions for termination provided in paragraph
6, the term of this Agreement shall begin as of the Early Termination Date and
shall end upon the expiration of eighteen (18) months after the Early
Termination Date (the "Term").
3. FEES. The Bank agree to pay to Consultant, and Consultant agrees to
accept as full payment for the performance of services hereunder and for
Consultant complying with the non-competition provision in Section 8 below, a
monthly fee in the amount of one-eighteenth of Consultant's Base Salary (as
defined in the Employment Agreement) as of the Early Termination Date, payable
within five (5) business days of the month immediately following each such month
during which the Consulting Services are rendered and Consultant complies with
Section 8. The Bank shall pay such fees without withholding any Federal or state
or local taxes.
4. EXPENSES. Consultant shall not be reimbursed for the expenses incurred
or paid by him in the provision of Consulting Services under this Agreement;
provided, however, that the Bank shall, upon submission and approval of written
statements and bills in accordance with the then regular procedures of the Bank,
pay or reimburse Consultant for any and all necessary, customary and usual
expenses incurred by him while traveling for or on behalf of the Bank, and any
and all other necessary, customary or usual expenses (including entertainment)
incurred by Consultant for or on behalf of the Bank in the normal course of
business, as determined to be appropriate by the Bank.
5. INDEPENDENT CONTRACTOR. The Bank and the Consultant acknowledge that
during the Term Consultant will not be an employee of the Bank and will be
working as an independent contractor for the Bank. Accordingly, Consultant shall
be responsible for payment of all taxes including federal, state and local taxes
arising out of Consultant's activities in accordance with this Agreement,
including by way of illustration but not limitation, federal and State income
tax, Social Security tax, Unemployment Insurance taxes, and any other taxes or
business license fees as required. Consultant shall not earn any additional
medical, dental, life insurance, retirement benefits, paid vacations or sick
leave or any other employee benefits as a result of his providing Consulting
Services to the Bank.
6. TERMINATION OF AGREEMENT. If this Agreement is terminated pursuant to
this paragraph 6, the Bank shall have no further liability to Consultant other
than for fees or expenses incurred as of the date of termination but not yet
paid.
(a) TERMINATION BY THE BANK FOR CAUSE. This Agreement and
Consultant's services hereunder may be terminated for cause by the Bank upon
written notice to Consultant, and Consultant shall not be entitled to receive
compensation or other benefits for any period after termination for cause. "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 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
the Bank; (v) any conviction of any felony or misdemeanor which may be
reasonably interpreted to be harmful to the Bank's reputation ; (vii) the
inducement of any client, customer, agent or
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employee to break any contract or terminate the agency or employment
relationship with the Bank or its affiliates; or (viii) 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
Consultant's dismissal or limits Consultant's duties. Termination for cause by
the Bank shall not constitute a waiver of any remedies which may otherwise be
available to the Bank under law, equity, or this Agreement.
(b) TERMINATION BY DEATH OR DISABILITY. The Bank may terminate this
Agreement by written notice to Consultant if, during the term of this Agreement,
Consultant shall become incapable of fulfilling obligations hereunder because of
death, injury or physical or mental illness. Termination for reason of
disability shall be effective immediately as of the date of said notice.
(c) TERMINATION BY CONSULTANT WITHOUT CAUSE. Consultant may terminate
this Agreement without cause by giving the Bank ninety (90) days written notice
of said termination.
7. INDEMNIFICATION. To the extent permitted by law and the Bank's
Articles of Incorporation and by-laws, the Bank shall indemnify, defend and hold
Consultant harmless against any and all claims as may be asserted by any third
party against Consultant based on the performance of Consultant's services under
the terms of this Agreement.
8. NON-COMPETITION. Consultant shall not, during the Term, directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, shareholder, corporate officer, director, or in any other individual or
representative capacity, engage or participate in any competing bank or
financial institution or financial services business for any bank or financial
institution or financial services business that has an office within 30 miles of
the head office or any branch of the Bank or any affiliate of the Bank.
Consultant hereby acknowledges the particular value to the Bank of this Section
8, the loss of which cannot be reasonably or adequately compensated in an action
at law or in arbitration. Therefore, Consultant expressly agrees that the Bank,
in addition to any and all other rights or remedies that the Bank shall possess,
shall be entitled to injunctive and other equitable relief to prevent or remedy
a breach of this Section 8 by Consultant, without the necessity of posting any
bond. Consultant's obligation under this Section 8 shall survive the termination
of this Agreement; provided that in the event of a breach of this Section 8 or
Section 9(d), the Bank will not have any obligation to continue to pay the
monthly fee under Section 3.
9. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. Except with respect to the Employment
Agreement, this Agreement supersedes any and all other agreements between
Consultant and the Bank, either oral or in writing, among the parties hereto
with respect to the retention of Consultant by the Bank and contains all of the
promises and agreements among the Parties with respect to such retention. Each
party acknowledges that no representations, promises or agreements, oral or
otherwise, have been made by any party or anyone acting on behalf of a party
which are not embodied herein, and that no other agreement, statement,
representation or promise with respect to such retention not contained in this
Agreement shall be valid or binding. Any modification,
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waiver or amendment of this Agreement will be effective only if it is in writing
and signed by the party to be charged.
Notwithstanding anything to the contrary set forth elsewhere in this
Agreement, Consultant agrees that (i) this Agreement shall take effect only in
the event of and upon the termination of Consultant's employment with the Bank
pursuant to the Section 5(a) of the Employment Agreement; and (ii) the
obligation of the Bank to pay Consulting Fees pursuant to this Agreement is
wholly independent of and shall in no way effect the provisions set forth in the
Employment Agreement.
(b) ARBITRATION. In the event any dispute should arise between the
parties hereto concerning the interpretation of any term of this Agreement, or
the performance of any obligation hereunder, such dispute shall be resolved
exclusively (except as provided by the provisions of this Paragraph) by referral
to arbitration under the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association (the "AAA"). The arbitration
shall be held in Los Angeles, California or at such other location as the
parties agree. In any such dispute, Consultant shall be obligated to pay to the
AAA only his own filing fees. All other AAA fees, including arbitrators' fees,
shall be borne by the Bank. Notwithstanding the arbitration provisions hereof,
any party hereto shall have the right to seek injunctive relief from any court
of competent jurisdiction for any breach of this Agreement for which injunctive
relief is an appropriate remedy.
(c) 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 or its termination shall be
brought in a forum located within the County of Orange, State of California, and
Consultant hereby agrees to be subject to service of process in California.
(d) DISCLOSURE OF INFORMATION. Consultant recognizes and acknowledges
that the Bank possesses trade secrets and other confidential and/or proprietary
information concerning the Bank's business affairs and methods of operation
which constitutes valuable, confidential, and unique assets of the Bank's
business ("Proprietary Information"), which the Bank has developed through a
substantial expenditure of time and money and which are and will continue to be
utilized in the Bank's business operations and which are not generally known in
the trade. At any time before or after termination of this Agreement, Consultant
agrees not to disclose to anyone any Proprietary Information for any reason or
purpose whatsoever and not to make use of any Proprietary Information for his
own purposes or for the benefit of anyone other than the Bank under any
circumstances. For purposes of this paragraph 9(d), Proprietary Information
includes, without limitation, all information regarding services, processes,
know-how, service development, business plans, strategic plans, labor relations,
research, finances, marketing, assessments, costs, benefits, and any other
confidential matters relating to the Bank. Consultant hereby acknowledges the
particular value to the Bank of this paragraph 9(d), the loss of which cannot be
reasonably or adequately compensated in an action at law or in arbitration.
Therefore, Consultant expressly agrees that the Bank, in addition to any other
rights or remedies that the Bank shall possess, shall be entitled to injunctive
and other equitable relief to prevent or to remedy a breach of this paragraph
9(d) by him, without the necessity of posting any bond.
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(e) SEVERABILITY. In the event that any term or condition contained
in this Agreement 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. It is the intention of the Parties that the non-competition covenants in
Section 8 shall be enforced to the greatest extent (but to no greater extent) in
time, area, and degree of participation as is permitted by the law of that
jurisdiction whose law is found to be applicable to any act allegedly in breach
of the covenants. It being the purpose of this Agreement to govern competition
by Consultant, the covenants in Section 8 shall be governed by and construed
according to that law (from among those jurisdictions arguably applicable to
this Agreement and those in which a breach of said Section is alleged to have
occurred or to be threatened) which best gives them effect.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting and
Non-Competition Agreement as of this 1st day of October, 2000, in the City of
Orange, California.
DATED: October 1, 2000 CONSULTANT:
/s/ XXXXXX X. XXXXXXXX, XX.
------------------------------------------
XXXXXX X. XXXXXXXX, XX.
DATED: October 1, 2000 BANK OF ORANGE COUNTY
By: /s/ XXXXXX X. XXXXXX
------------------------------------------
Xxxxxx X. Xxxxxx
Chairman of the Board of Directors
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