Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 18th day of March, 1998, between BUSINESS
BANK OF CALIFORNIA (the "Bank"), having a principal place of business at 000
Xxxx Xxxxxx Xxxxxx, Xxx Xxxxxxxxxx, Xxxxxxxxxx 00000, and XXXX X. XXXX
("Executive"), whose residence address is 00000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000.
W I T N E S S E T H
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WHEREAS, the Bank is a California banking corporation duly organized,
validly existing, and in good standing under the laws of the State of
California, with power to own property and carry on its business as it is now
being conducted;
WHEREAS, the Bank desires to continue to avail itself of the skill,
knowledge and experience of Executive in order to insure the successful
management of its business;
WHEREAS, the parties hereto desire to specify the terms of
Executive's employment by the Bank as controlling Executive's employment with
the Bank;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, and intending to be legally bound, it is agreed that from and after
April 1, 1998 (the "Effective Date"), the following terms and conditions shall
apply to Executive's said employment:
A. TERM OF EMPLOYMENT
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The Bank hereby employs Executive and Executive hereby accepts
employment with the Bank for the period of three (3) years (the "Term")
commencing with the Effective Date, subject, however, to prior termination of
this Agreement as hereinafter provided. 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.
B. DUTIES OF EXECUTIVE
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1. Duties. Executive shall perform the duties of President and
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Chief Executive Officer of the Bank, subject to the powers by law vested in the
Board of Directors of the Bank and in the Bank's shareholders. During the Term,
Executive shall perform exclusively 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
Incorporation, Bylaws and internal written policies.
2. Conflicts of Interest. Except as permitted by the prior
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written consent of the Board of Directors of the 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
however, that neither such business or venture is in competition, directly or
indirectly, in any manner with the Bank.
C. COMPENSATION
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1. Salary. For Executive's services hereunder, the Bank shall
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pay or cause to be paid as annual base salary to Executive the sum of One
Hundred Fifty Thousand Dollars ($150,000) for each year of the Term. Said salary
shall be payable in equal installments in conformity with the Bank's normal
payroll period. Annual adjustments after the first year of the Term may be made
in the discretion of the Board of Directors.
2. Bonuses. Executive shall be entitled to participate in the
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Bank's existing incentive compensation plan upon such terms and conditions as
are mutually agreeable to the Bank and Executive.
D. EXECUTIVE BENEFITS
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1. Vacation. Executive shall be entitled to a four (4) week
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vacation during each year of the Term; provided, however, that for each year of
the Term, Executive is required to and shall take at least two (2) weeks of said
vacation (the "Mandatory Vacation"), which shall be taken consecutively.
Executive shall not be entitled to vacation pay in lieu of vacation and accrual
of any unused vacation time shall be limited to a maximum of five (5) weeks at
any time.
2. Automobile. Effective January 1, 1999, or earlier if
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requested by Executive, the Bank shall provide Executive, for Executive's sole
use, a suitable full-sized automobile, the specific make and model of such
automobile to be determined by Executive,
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which automobile shall be initially new and at no time be older than three (3)
years. The Bank shall pay all operating expenses of any nature whatsoever with
regard to such automobile, provided 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 payments as deductible business expenses of the Bank and
not as deductible compensation to Executive. The Bank shall also procure and
maintain in force an automobile liability insurance policy on such automobile,
containing all reasonable and necessary coverage.
3. Group Medical and Life Insurance Benefits. The Bank shall
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provide for Executive, at the Bank's expense, participation in the Bank's
existing California Banker's Association Group Insurance Program ("CBA Program")
at a level commensurate for an employee of Executive's salary level. Said
coverage shall be in existence or shall take effect as of the Effective Date
hereof and shall continue throughout the Term. 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.
4. Stock Options. The Bank shall grant Executive a stock option
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to purchase up to 26,000 shares of the Bank's authorized but unissued Common
Stock (in addition to any currently outstanding options), at an exercise price
equal to the higher of book or market value on the date of grant, subject to
compliance with any applicable requirements of the Bank's Stock Option Permit
and Order of Exemption issued by the State Banking Department. The Bank and
Executive agree that such option shall be for a term of ten (10) years, and will
vest over a period of five (5) years from the date of grant as follows: twenty
percent (20%) will be exercisable on or after each of the first five
anniversaries of the date of grant of the stock option. The Bank and Executive
also agree that, 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 option will be granted to Executive
pursuant to the Bank's current Stock Option Plan, and an agreement between the
Bank and Executive containing the terms as may be agreed upon by such parties.
5. 401(k) Plan. Executive shall be entitled to participate in
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the Bank's 401(k) Plan subject to the eligibility and vesting requirements set
forth in said Plan.
E. REIMBURSEMENT FOR BUSINESS EXPENSES
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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 and in acting for the Bank during the Term,
which types of expenditures shall be determined by the Board of Directors,
provided that:
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(a) 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
(b) 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
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1. Termination for Cause. The Bank may terminate this Agreement
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at any time by action of the Board of Directors, if Executive fails to perform
or habitually neglects the duties which he is required to perform hereunder, if
Executive engages in illegal activity which materially adversely affects the
Bank's reputation in the community or which evidences the lack of Executive's
fitness or ability to perform Executive's duties as reasonably determined by the
Board of Directors in good faith, or if Executive commits any act which would
cause termination of coverage under the Bank's Bankers' Blanket Bond as to
Executive (as distinguished from termination of coverage as to the Bank as a
whole). In the event the Bank terminates this Agreement for cause as provided
herein, Executive shall not be eligible for any severance benefits otherwise
contemplated by this Agreement. Such termination shall not prejudice any remedy
which 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
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Executive is found to be physically or mentally disabled (as hereinafter
defined) by the Board of Directors 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 being unable to fully perform under
this Agreement for a continuous period of ninety (90) days or a cumulative
period of 120 days in any calendar year. 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 San Bernardino County Medical Association. The certification
of such physician or psychiatrist as to the question in dispute shall be final
and binding upon the parties hereto.
3. Action by Supervisory Authority. If the Bank is closed by or
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taken over by the California Department of Financial Institutions or other
supervisory authority, including the Federal Deposit Insurance Corporation, such
bank supervisory authority may
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immediately terminate this Agreement without further liability or obligation by
the Bank to Executive.
4. Merger or Other Corporate Reorganization. In the event of:
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(i) a merger where the Bank is not the surviving corporation, (ii) a transfer of
all or substantially all of the assets of the Bank or (iii) any acquisition,
consolidation or other corporate reorganization where there is a change in
ownership of at least fifty-one percent (51%) except as may result from a
transfer of shares to another corporation in exchange for at least eighty
percent (80%) control of that corporation, and, in the event that this Agreement
and Executive's employment are terminated for any reason during the two-year
period immediately following the effective date of consummation of such merger
or other corporate reorganization by either Executive or by the surviving
entity, in the event of a merger; by either Executive or the transferee of
assets in the event of a purchase or sale; or by either Executive or the
acquiror, in the event of an acquisition of stock in the Bank, then Executive
shall be entitled to the same severance benefits as contemplated by Paragraph
F.5 below for a nine (9) month period immediately following such termination of
this Agreement; provided, however, that if, on the first business day
immediately preceding the effective time of such merger or other corporate
reorganization, the Bank's total assets equal $250 million or greater, then
Executive shall be entitled to said severance benefits for a two (2) year period
immediately following such termination. Notwithstanding the foregoing, no such
severance benefits shall be payable to Executive in the event that this
Agreement is terminated during the above-described two-year period for any of
the reasons delineated in Paragraph F.1 above.
5. Termination Without Cause. Notwithstanding anything to the
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contrary contained herein, it is agreed by the parties hereto that either the
Bank or Executive may at any time elect to terminate this Agreement and
Executive's employment by the Bank for any reason. Such termination shall be
effective thirty (30) days following proper delivery of notice of termination to
the non-terminating party in accordance with the notice provisions set forth
herein. In the event this Agreement is terminated by Executive, all benefits
provided by the Bank hereunder to Executive shall cease upon the effective date
of such termination of this Agreement and Executive shall not be entitled to any
severance benefits whatsoever. In the event this Agreement is terminated by the
Bank (other than in accordance with Paragraph F.1 hereof), Executive shall be
entitled to each of the following severance benefits commencing upon the
effective date of termination of this Agreement: (a) Executive shall continue to
be paid Executive's base salary for a period of nine (9) months immediately
following the effective date of Executive's termination, which payments shall be
payable to Executive in accordance with the normal method of payment as
specified in this Agreement; and (b) Executive shall be entitled to maintain all
medical and life insurance benefits which were granted to him during his
employment with the Bank for a period of nine (9) months immediately following
the effective date of Executive's termination.
6. Effect of Termination. In the event of the termination of
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this Agreement for any reason (except as provided herein), Executive shall be
entitled to the salary
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and bonus, if any, earned by Executive prior to the date of termination as
provided for in this Agreement (except that Executive shall not be entitled to
any bonus in the event his employment is terminated for cause as provided in
Paragraph F.1 above), computed pro rata up to and including that date; but
Executive shall be entitled to no further compensation for services rendered
after the date of termination, except as provided in Paragraph F.4 above
regarding merger or other corporate reorganization or Paragraph F.5 above
regarding termination without cause by the Bank. Executive further agrees that
in the event of termination of employment for any reason, he will resign from
the Board of Directors of the Bank on the effective date of the termination of
such employment.
G. GENERAL PROVISIONS
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1. Trade Secrets. During the Term, Executive will have access to
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and become acquainted with what Executive and the Bank acknowledge are trade
secrets, to wit, knowledge or data concerning the Bank, including its 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 for a period of
two (2) years after the termination of this Agreement, except as required in the
course of Executive's employment with the Bank.
2. Covenant Not to Compete. Executive hereby covenants and
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agrees that for a period of eighteen (18) months following termination of this
Agreement, Executive shall not engage in the business of banking within a
twenty-five (25) mile radius of the Bank's head office, or any branch office, or
of any location for which the Bank has applied for a branch office.
Notwithstanding the foregoing, this covenant not to compete shall not be
applicable in the event that this Agreement is terminated in accordance with
Paragraph F.4 hereof.
3. Indemnification. To the extent permitted by law, applicable
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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 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
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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, heirs, legatees or devisees of Executive.
4. Return of Documents. Executive expressly agrees that all
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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.
5. Notices. All notices, demands or other communications
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hereunder shall be in writing and shall be delivered in person (professional
courier acceptable); or by United States mail, certified or registered, postage
prepaid, with return receipt requested; or by facsimile transmission; or
otherwise actually delivered, to the addresses for the parties appearing at the
inception of this Agreement. The persons or addresses to which mailings or
deliveries shall be made may change from time to time by notice given pursuant
to the provisions of this Paragraph G.5. Any notice, demand or other
communication given pursuant to this Agreement shall be deemed to have been
given on the date actually delivered, if delivered in person, three days
following the date mailed, if delivered by U.S. mail, or upon written
confirmation of transmission, if delivered by facsimile.
6. Review by Counsel. Executive represents and warrants to the
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Bank that he has had this Agreement reviewed by independent legal counsel of his
choice, or if he has not, that he has had the opportunity to do so, and hereby
waives any claim, objection or defense on the grounds that this Agreement has
not been reviewed by legal counsel of his choice.
7. California Law. This Agreement is to be governed by and
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construed in accordance with the laws of the State of California.
8. Captions and Paragraph Headings. Captions and paragraph
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headings used herein are for convenience only and are not a part of this
Agreement and shall not be used in construing it.
9. Invalid Provisions. Should any provision of this Agreement
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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.
10. Entire Agreement. This Agreement contains the entire
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agreement of the parties. It supersedes any and all other agreements, either
oral or in writing,
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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.
11. Receipt of Agreement. Each of the parties hereto
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acknowledges that he has read this Agreement in its entirety and does hereby
acknowledge receipt of a fully executed copy thereof. A fully executed copy
shall be an original for all purposes, and is a duplicate original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
BUSINESS BANK OF CALIFORNIA
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
Chairman of the Board
/s/ Xxxx X. Xxxx
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XXXX X. XXXX
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BUSINESS BANK OF CALIFORNIA
SUPPLEMENT TO EMPLOYMENT AGREEMENT FOR XXXX X. XXXX
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If either party to this Agreement does not desire for the Agreement to be
renewed at the end of the Term, such party shall so notify the other party not
less than nine (9) months prior to the expiration of the Term. If no notice is
given and the parties fail to take any affirmative action to enter into a new
employment agreement, this Agreement shall continue in full force and effect for
one (1) additional year.
