EMPLOYMENT AND CONFIDENTIALITY AGREEMENT Community West Bank Executive Vice President & Chief Credit Officer
Exhibit
10.1
Community West
Bank
Executive
Vice President & Chief Credit Officer
This
Employment and Confidentiality Agreement (the “Agreement”) is made and entered
into as of September 5, 2008 (the “Effective Date”) by and between Community
West Bank, a Nationally Chartered Bank and wholly owned subsidiary of Community
West Bancshares (the “Bank”), Community West Bancshares, a California
corporation (“Parent”) and Xxxxxxx X. Favor (“Executive”) and supersedes the
contract dated September 6, 2007 between the same parties.
Witnesseth
Whereas
the Bank is a California national banking association duly organized, validly
existing, and in good standing under the laws of the United States of America,
with power to own property and carry on its business as it is now being
conducted, with its principal place of business located at 000 Xxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxx 00000;
Whereas
the Bank desires to avail itself of the skill, knowledge and experience of
Executive in order to insure the successful management of its
business;
Whereas
the parties desire to enter into this Agreement;
Whereas
the parties hereto desire to specify the terms of Executive’s employment by the
Bank and Company as controlling Executive’s employment at the Bank;
Now,
therefore, in consideration of the representations, warranties, and mutual
covenants set forth in this Agreement, the following terms and conditions shall
apply to Executive’s employment with the Bank on or after the Effective
Date.
1. ARTICLE 1 – EMPLOYMENT AND
TERM
1.1 Employment. The
Bank shall employee Executive as the Bank’s Executive Vice President and Chief
Credit Officer (the “Position”), and Executive accepts such employment, in
accordance with the terms and conditions set forth in this
Agreement. The place of Executive’s employment under this Agreement
shall be in Goleta, California or at a location determined by the Board of
Directors of the Bank (the “Board of Directors”).
1.2 Term. The
term of employment under this Agreement (“Term”) shall commence on the Effective
Date and end on August 31, 2011, subject to early termination, provided in
Article 4 below.
1.3 Renewal. Upon the
expiration of the Term, Executive’s employment under this Agreement shall
automatically renew for a successive period of twelve (12) months (“Renewal
Term”), and upon expiration of any subsequent Renewal Term shall automatically
renew for a successive period of twelve (12) months; unless, at least three (3)
months before the expiration of any preceding Term or Renewal Term, either (a)
the Board provides written notice of non-renewal to Executive; or, (b) Executive
provides written notice of non-renewal to Bank. Each party shall
negotiate in good faith the terms and conditions for any renewal of the Term or
any Renewal Term of this Agreement.
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1.4 Policies and
Regulations. Executive shall observe, comply with and be bound
by all of the policies, rules and regulations established by the Bank with
respect to its executives and otherwise, all of which policies, rules and
regulations are subject to change by the Bank from time to time.
2. ARTICLE 2 – DUTIES OF
EXECUTIVE
2.1 Powers. At
all times, Executive shall be empowered by and subject to the powers and
authority of the Board of Directors and the Bank’s
shareholders. Executive shall report directly to the Bank’s President
and Chief Executive Officer (“CEO”).
2.2 Duties
(a) Executive Vice President and
Chief Credit Officer of the Bank. Executive, directly or
through subordinate supervision, shall be responsible for technical and
operational activities on a day-to-day basis, as well as formulation of
strategies and business plans to achieve the Bank’s long-range
objectives. Executive agrees to render services and perform the
duties and acts of Executive Vice President and Chief Credit Officer (the
“Duties”) in connection with all aspects of Bank’s business as may be required
by the Board of Directors and/or the Bank’s CEO. Executive shall
perform these Duties, and the Specific Duties as defined below, faithfully,
diligently, to the best of Executive’s ability and in the best interests of the
Bank, consistent with the highest standards of the banking industries and in
compliance with all applicable laws, rules, regulations, and policies applicable
to the Bank, including, but not limited to, the Federal Deposit Insurance Act,
as amended, and all regulations thereunder, and the Bank’s Articles of
Association and Bylaws.
(b) Executive Vice President and
Chief Credit Officer of Parent. Executive also shall have the
position of Executive Vice President and Chief Credit Officer of
Parent. Executive agrees to render services and perform the duties
and acts of Executive Vice President and Chief Credit Officer of Parent as may
be required by the Board of Directors of Parent and/or the Parent’s
CEO.
2.3 Specific
Duties. Without limiting any of Executive’s Duties and
obligations under Section 2.2, above, Executive agrees to undertake and perform
all duties required of the Position (“Specific Duties”), including, but not
limited to:
(a) Formulates,
reviews and updates loan policy and presents changes to Directors Loan Committee
as appropriate.
(b)
Approves loans within established limits in the area of commercial lending and
Small Business Administration loans, and makes recommendations to Directors Loan
Committee.
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(c) Directs
credit officers, SBA Business Development Officers, and Special Assets staff
regarding structure, documentation, compliance, and loan workouts.
(d) Serves
as primary contact for the credit function on regulatory exams and credit
review.
(e) Provides
credit training directly or through other resources.
(f) Recommends
and monitors loan concentration limits.
(g) Serves
as the Bank’s Community Reinvestment Act Officer.
(h) Develops/enhances
loan products and underwriting.
(i) Analyzes
and determines the allowance for loan and lease loss (ALLL).
(j) Develops
and maintains effective communication and working relationships with direct
reports and inter-departmental staff.
2.4 Conflict of
Interests. 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. Further, Executive shall not
engage in any activity that would impair Executive’s ability to act and exercise
independent judgment in the best interests of the Bank.
2.5 Exclusive
Services. During employment by the Bank, Executive shall not,
without the express prior written consent of the Board of Directors, engage
directly or indirectly in any outside employment or consulting of any kind,
whether or not Executive receives remuneration for such
services. Nothing in this Section 2.5 shall prohibit Executive from
providing volunteer consulting services (the “Volunteer Services”) through
established non-profit or charitable organizations in furtherance of such
organization’s purposes, so long as such Volunteer Services do not materially
interfere with Executive’s performance of his duties and obligations under this
Agreement.
3.
ARTICLE 3 –
COMPENSATION
As the
total consideration for the services that Executive renders under this
Agreement, Executive shall be entitled to the following:
3.1 Base
Salary. Effective September 1, 2008, the Bank shall pay
Executive a base salary of One Hundred Seventy-Five Thousand Dollars ($175,000)
per year, less income tax and other applicable withholdings. On or
before March 1st of each year during the Term and any Renewal Term, the CEO
shall review the base salary payable to Executive under this Agreement and shall
determine, in the CEO’s sole discretion, whether or not to adjust such
salary. Any such adjustment shall be effective as of the first day of
March of each calendar year. Nothing in this Section 3.1 shall
obligate the Bank to increase the salary payable to Executive as a result of any
such review, provided that in no event shall the Bank reduce the salary payable
to Executive as a result of such review. Base salary shall be paid in
accordance with Bank’s regular payroll practices.
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3.2 Annual
Bonus. Executives shall be eligible to receive an annual
bonus, at an amount, if any, determined by the Board of Directors in its sole
discretion. If it is determined that a bonus will be paid Executive
for any calendar year, the bonus will be paid at or near the close of the
calendar year, but no later than thirty (30) days after
year-end. Executive acknowledges and agrees that nothing in this
Agreement or the Bank’s general policies shall require the Bank to pay Executive
a bonus for any year, to pay Executive a bonus in particular amount for any
year, or to pay Executive a bonus by reason of the Bank’s payment of a bonus to
any other executives of the Bank.
3.2.1 Signing Bonus Previously
Paid. Executive will refund the entire Fifteen Thousand
Dollars ($15,000) signing bonus should the Executive leave the Bank for any
reason other than termination without cause within the first year of this
contract. Refund of the signing bonus will be due within two (2) weeks of the
last day of Executive’s employment by the Bank.
3.3 Stock
Options
(a) Additional
Options. So long as Executive is then employed by the Bank
under the terms of this Agreement, (i) at the first meeting of the Board of
Directors during Sept 2009, Executive shall be granted options covering an
additional 3,750 shares of Common Stock in accordance with the terms and
conditions of the Plan and (ii) at the first meeting of the Board of Directors
during July 2010, Executive shall be granted options covering an additional
3,750 shares of Common Stock in accordance with the terms and conditions of the
Plan.
(b) Vesting
Schedule. Executive’s interest in each of the foregoing
options (the “Options”) shall vest pro rata on an annual basis over a period of
five (5) years from the date of grant of the Option.
(c) Acknowledgement. Executive
acknowledges that (i) under the Plan the exercise price of the Options will be
the per share fair market value of the Common Stock as of the date of grant of
the Option and (ii) Executive has read, reviewed and is familiar with the terms
and conditions of the Plan and the form of the Option Agreement under which the
Options will be granted to Executive.
(d) Adjustment of Option
Shares. The foregoing number of shares covered by any Option
shall be appropriately adjusted in the event of a stock split, reverse stock
split, stock dividend, combination or reclassification of the Common Stock, or
similar change in the capital structure of the Bank that occurs between the
Effective Date of this Agreement and the date on which the Option is
granted.
3.4 Deferred
Compensation
(a) Deferred
Compensation. The Bank hereby establishes a balance sheet
liability account for the benefit of Executive (the “Deferred
Account”). The provisions of this Section 3.4 shall control all
obligations of the Bank with respect to all amounts credited to the Deferral
Account.
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(i) Fourth Quarter
2008. As of the Effective Date of this Agreement, the Bank
shall credit to the Deferral Account Thirty-Three Thousand Five Hundred Dollars
($33,500) with respect to the calendar quarter ended September 30,
2008.
(ii) First Quarter
2009. Subject to the provisions of Section 3.4(b)(iv), below,
and provided that Executive is then employed by the Bank under this Agreement,
as of March 31, 2009, the Bank shall credit to the Deferral Account an
additional Thirty-Three Thousand Five Hundred Dollars ($33,500) with respect to
the calendar quarter ended March 2009.
(iii) Monthly
Credits. Subject to the provisions of Section 3.4(b)(iv)
below, beginning with September 2008 and continuing throughout the Term and any
Renewal Term of this Agreement, the Bank shall credit to the Deferral Account on
the last day of each calendar month an additional One Thousand Three Hundred
Forty Dollars ($1,340) per month, provided that in no event shall the Bank be
obligated to credit any amount to the Deferral Account with respect to any month
unless Executive is employed by the Bank under this Agreement as of the last day
of such calendar month.
(iv) No Credit During
Disability. Notwithstanding anything in this Agreement to the
contrary, the Bank shall not be obligated to credit any amount to the Deferral
Account under Section 3.4 as they may apply with respect to any period during
which Executive is disabled (as defined in Section 4.6
below). Notwithstanding the foregoing, interest shall accrue on the
balance of the Deferral Account during any period during which Executive is
disabled.
(b) Interest
Accrual. The Bank shall credit to the Deferral Account at the
end of each calendar month interest on the balance of the Deferral Account at a
rate equal to the then-current rate offered by the Bank on a six (6) month
certificate of deposit. Interest shall continue to accrue on the
balance in the Deferral Account so long as any amounts remain credited to the
Deferral Account and unpaid to Executive.
(c) Payment of Deferral
Amounts
(i) No Payment if Termination of
Employment Prior to Age 65. Except as provided in Section 3.4
below as it may apply, if Executive’s employment under this Agreement terminates
for any reason other than only Executive’s death or disability prior to the date
on which he attains age 65, the Bank shall have no obligation to pay any amount
to Executive with respect to any amounts credited to the Deferral
Account.
(ii)
Payment After Age
66. Subject to the provisions of Section 3.4(c)(i), above, at
such time as Executive attains age 66, whether or not he is then employed with
the Bank, the Bank shall make payments to Executive with respect to amounts
credited to the Deferral Account as follows:
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(A) Beginning
on the first day of the first calendar month after Executive attains age 66, the
Bank shall pay to Executive an annual amount selected by Executive but in any
event not less than Sixteen Thousand Eighty Dollars ($16,080) and not more than
Thirty-Three Thousand Five Hundred Dollars ($33,500). The Bank shall
pay such amount on a monthly, quarterly or annual basis as selected by
Executive. Executive may change the amount and the time for payment
of any amounts under this Section 3.4 as they may apply, so long as such change
is made in compliance with the election and other requirements of Section 409A
of the internal Revenue Code of 1986, as amended (the “Code”).
(B) The
parties intend that the provisions of Section 3.4(c)(ii)(A) provide for the
payment of the Deferred Account balance at a specified time within the meaning
of Section 409(A(a)(2)(A)(iv) of the Code.
(iii) Payment on Executive’s
Disability. If the Bank terminates this Agreement by reason of
Executive’s disability (as defined in Section 4.6 below), the Bank shall pay to
or on behalf of Executive an amount selected by Executive, but in any event not
less than One Thousand Three Hundred Forty Dollars ($1,340) and not more than
Two Thousand Six Hundred Eighty Dollars ($2,680) per month until all amounts
credited to the Deferral Account have been paid to or for the account of
Executive. Notwithstanding the foregoing, once Executive attains age
66, the amounts payable by the Bank to Executive shall be determined under
Section 3.4 above as they may apply and not this Section 3.4. If
Executive dies after the Bank has commenced paying his amounts under this
Section 3.4, the Bank shall pay to Executive’s Designated Heirs (as defined
below) in accordance with the provisions of Section 3.4 below, the balance in
the Deferred Account on the date of Executive’s death.
(iv) Payment on Executive’s
Death. If Executive dies prior to the Bank’s payment to
Executive of all amounts credited to the Deferral Account, the entire balance of
the Deferral Account on the date of Executive’s death shall be paid by the Bank
to Executive’s Designated Heirs (as defined below) within thirty (30) days after
the later of (A) the date of the delivery to the Bank of written
notice of Executive’s death or (B) the date on which the Bank receives a court
order or written instructions from legal counsel for Executive or Executive’s
estate reasonably acceptable to the Bank authorizing and confirming the payment
of the account balance to the Designated Heirs. Set forth in Exhibit
A hereto is a schedule of Executive’s heirs (the “Designated Heirs”) for
purposes of this Agreement. Executive may change the Designated Heirs
at any time and from time to time, provided that the Bank shall not be bound by
any change to the Designated Heirs unless and until the Bank has received
written notice of the change.
(v) Termination of Payment
Obligation. The Bank shall have no obligation to pay Executive
any amounts under this Section 3.4 as it may apply on or after the date on which
the Bank has paid to Executive the entire amount credited to the Deferral
Account.
(vi) Performance of
Services. All amounts credited to the Deferral Account under
this Section 3.4 are deemed credited with respect to services performed or to be
performed by Executive under this Agreement after the Effective
Date.
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(d) Vesting on Change in
Control. On the occurrence of a Change in Control, as defined
in Section 4.7 below as it may apply, Executive’s interest in fifty percent (the
“Vested Percentage”) of the total amount credited to the Deferral Account as of
the date of the Change in Control shall become fully vested. The Bank
shall pay the Vested Percentage to Executive in accordance with the provisions
of Section 3.4 as they may apply.
The
vesting under this Section shall occur regardless of whether or not Executive’s
employment under this Agreement is terminated pursuant to Section 4.7
below.
(e) Tax
Election. To the extent that this Agreement or the provisions
of this Section 3.4 constitute a nonqualified deferred compensation plan within
the meaning of Section 409A of the Code, Executive hereby makes an irrevocable
election as to the payment of any deferred compensation in accordance with the
provisions of this Section 3.4.
(f)
Status of Deferred
Account. Executive agrees that the Bank shall establish and
maintain the Deferral Account only as a balance sheet liability account and that
the Bank shall have no obligation to deposit or maintain any cash or other
assets in a separate or segregated account for the benefit of
Executive.
3.5. 401(k)
Plan. Subject to Executive’s compliance with the eligibility
and other terms and conditions of the Plan, Executive will be eligible to
participate in the Bank’s 401(k) Plan.
3.6. Bank Executive
Benefits. Subject to Executive’s satisfaction of any
eligibility requirements, Executive shall be eligible to participate in the
Bank’s employee benefit plans, for both Executive and family (including medical,
dental, vision, prescription plan, life insurance, and short-term disability
benefits) generally provided by the Bank to its senior executives. In
all events, the Bank’s liability to Executive shall be limited to the amount of
premiums payable by the Bank to obtain the coverage(s) contemplated
herein. Nothing in this Section 3.6 or any other provision of this
Agreement shall prohibit the Bank from, or limit the right of the Bank to,
changing or modifying the terms of any of the foregoing employee benefit plans
or terminating any of such plans.
3.7. Vacation. Executive
shall be entitled to vacation time of not more than twenty (20) days per year,
provided however that during each year of the Term or Renewal Term(s), Executive
is required to and shall take at least ten (10) days of said vacation (the
“mandatory vacation”) which shall be taken consecutively. Executive
shall be entitled to accumulate up to thirty (30) days of accrued vacation,
after which additional vacation will not accrue. The Bank shall not
be obligated to pay or reimburse Executive at the end of any calendar year any
amount for any unused vacation time. The Bank shall pay or reimburse
Executive at the end of the Term or any Renewal Term after which there is no
further Renewal Term, for any unused vacation time.
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3.8 Reimbursement for
Expenses. The Bank shall reimburse Executive for any and all
reasonable business expenses incurred by Executive on behalf of Bank in the
performance of this Agreement, approved expenditures to be determined by the
Board of Directors (“Business Expenses”). A reimbursable Business
Expense shall be of a nature qualifying it as a proper business expense
deduction on the federal and state income tax returns of the
Bank. Executive must be able to furnish adequate records and other
documentary evidence as may be required by Federal and State
statutes.
4.
ARTICLE 4 –
TERMINATION
4.1 Termination At
Will. Notwithstanding anything to the contrary herein, the
Bank may terminate this Agreement at any time and for any reason, with or
without cause, in accordance with the provisions of this Section
4. Except as otherwise specifically provided in this Agreement, such
termination shall be effective either immediately upon receipt of notice of
termination by Executive from the Bank or at such later date as the Bank may
specify in the notice of termination. Notwithstanding anything in
this Agreement to the contrary, the Bank shall have no obligation to continue
Executive’s employment under this Agreement for any period or any particular
period.
4.2 Termination by the Bank
Without Cause or on Non-Renewal. If during the Term or Renewal
Term the Bank terminates this Agreement without cause or does not renew the Term
or any Renewal Term, the following provisions shall apply:
(a) Notice
Period. The Bank shall provide Executive at least three (3)
months’ written notice of (i) the Bank’s termination of Executive’s employment
under this Agreement without cause or (ii) the Bank’s decision not to renew the
Agreement (“Notice Period”).
(b) Compensation.
(i) During Notice
Period. During the Notice Period, Executive shall continue to
receive the then-applicable salary and benefits specified in this Agreement and
shall continue to perform the Duties and Specific Duties of employment as
defined under the Agreement.
(ii) Deferred
Compensation. The Bank shall pay to Executive the balance in the Deferral
Account in accordance with the provisions of Section 3.4 above as they may
apply.
(c) Benefits.
(i) After
the effective date of the termination of this Agreement, all Executive benefits
available under Section 3.6 above (the “Benefits”) shall be continued by Bank,
contingent upon and subject to Executive’s COBRA election described under
Section 4.2 below as they may apply, with the Bank to pay the premium cost for
the first six (6) months and Executive to pay the premium cost
thereafter. Such Benefits to continue until the earliest of (A) the
expiration of the longer of either one (1) year following the effective date of
the termination of Executive’s employment under this Agreement or any
continuation or coverage period specified by applicable law, or (B) the date
Executive becomes covered under any other group health plan not maintained by
the Bank or any of its subsidiaries, or (C) Executive provides notice to Bank or
the COBRA provider to discontinue the Benefits. Executive shall use his
commercially reasonable efforts to promptly notify the Bank of the occurrence of
an event described in clause (B) or (C) of the preceding sentence.
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(ii) In
the event Executive is required to make an election under Executive Retirement
Income Security Act of 1974 Sections 601 et seq. (“COBRA”) to qualify for the
Benefits, Bank’s obligation hereunder shall be conditioned upon Executive’s
making a timely election.
4.3 Termination by the Bank for
Cause. The Bank may terminate this Agreement at any time for
“cause” (as defined below) by giving to Executive ten (10) days prior written
notice of termination.
(a) Definition of
Cause. For purposes of this Section 4.3, the term “cause”
means and includes only:
(i) conviction
of or confession by Executive to theft, fraud, or embezzlement against the
Bank;
(ii) Executive’s
refusal or failure, after specific written notice and demand by the Bank, to
diligently perform services for the Bank as required by Article 2
hereof;
(iii) Executive’s
breach or violation of any material written policy or regulation of the Bank,
including but not limited to, any written policy or regulation dealing with
sexual harassment, discrimination based on age, sex, race, religion or other
protected category, illicit drugs, and environmental protection
matters;
(iv) Executive’s
willful breach or violation of any material law, rule or regulation (other than
traffic violations or similar offense) or final order of a court of competent
jurisdiction applicable to the Bank or Executive.
(v) Executive’s
taking of any material action which requires the prior approval of the Board of
Directors without such approval; and
(vi) Executive’s
breach of or failure to perform any of his fiduciary duties to the Bank or any
of shareholders involving personal profit.
(b) Notice of
Termination. If the Bank proposes to terminate this Agreement
under clause (a)(i) above, this Agreement shall terminate automatically at the
end of such 10-day period and the Bank shall have no further obligation to give
Executive any further notice of termination. If the Bank proposes to
terminate this Agreement under any of clause (a)(ii), (a)(iii), (a)(v) or
(a)(vi) above, this Agreement shall terminate automatically at the end of such
10-day period and the Bank shall have no further obligation to give Executive
any further notice of termination unless Executive has cured, to the reasonable
satisfaction of the Bank, during such 10-day period, the alleged cause of
termination and the Bank provides Executive written notice of its acceptance of
such cure. Notwithstanding anything in this Agreement to the
contrary, if the Bank proposes to terminate this Agreement for cause under this
Section 4.3, so long as the Bank provides Executive a reasonable opportunity to
cure any alleged cause, if the Bank is required to do so, the Bank may terminate
this Agreement as of the date of the initial notice of termination and pay
Executive an additional ten (10) days of severance compensation.
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(c) Compensation.
(i) Earned
Compensation. Executive shall have the right to receive
compensation which has already vested or been earned as of the date of
termination of this Agreement under this Section 4.3.
(ii) Deferred
Compensation. The Bank shall pay Executive the balance in the
Deferral Account in accordance with the provisions of Section 3.4 above as they
may apply.
(d) Benefits.
(i) Earned
Benefits. Executive shall have the right to receive benefits
which have already vested or been earned as of the date of termination of this
Agreement under this Section 4.3 unless expressly prohibited by the terms of any
plan, program or agreement governing such compensation or benefits.
(ii) Additional
Benefits. Executive shall be entitled to receive only the
right to participate in the Bank’s medical plan in accordance with the
provisions of COBRA, provided that Executive shall be responsible for paying all
applicable insurance premiums and the Bank shall have no obligation to pay any
such premiums.
4.4. Termination by Executive on
Other Event.
(a) Right to
Terminate. Executive may terminate this Agreement at any time
upon the occurrence of an Other Event (as defined below) by giving to the Bank
sixty (60) days prior written notice of termination. Executive must
deliver his notice of termination under this Section 4.4(a) within sixty (60)
days after the occurrence of any Other Event specified
below. Executive shall specify in reasonable detail in such notice of
termination the basis for the claim that the Bank has breached or failed to
perform any of its material obligations or covenants. This notice of
termination must set forth in reasonable detail the facts and circumstances that
support Executive’s claim of right to terminate this Agreement under this
Section 4.4.
(b) Definition. For
purposes of this Agreement, the term “Other Event” shall mean and include: (i)
the Bank’s breach or failure to perform any of its material obligations or
covenants under this Agreement and either the Bank’s failure to cure such breach
or failure of performance within the 15-day period specified in Section 4.4(c)
below, or the continuation of such breach or failure of performance after such
15-day period without Executive’s written consent; and (ii) Good Reason (as
defined in Section 4.7(d) below).
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(c) Right to
Cure. The Bank shall have an opportunity to cure said
breach or failure of performance within fifteen (15) days of Bank’s receipt of
written notice specifying the material breach and the opportunity for Bank to
resolve said breach.
(d) Compensation.
(i) Earned
Compensation. Executive shall have the right to receive
compensation which has already vested or been earned as of the date of
termination of this Agreement under this Section 4.3.
(ii) Deferred
Compensation. The Bank shall pay Executive the balance in the
Deferral Account in accordance with the provisions of Section 3.4 above as they
may apply.
(e) Benefits.
(i) Earned
Benefits. Executive shall have the right to receive benefits
which have already vested or been earned as of the date of termination of this
Agreement under this Section 4.3, unless expressly prohibited by the terms of
any plan, program or agreement governing such compensation or
benefits.
(ii) Additional
Benefits. Executive shall be entitled to receive the Benefits
specified in Section 4.2(c) above in accordance with and subject to the terms of
such Section.
4.5 Termination on Death of
Executive. This Agreement shall terminate automatically upon
Executive’s death.
(a) Compensation. The
Bank shall pay to Executive, his beneficiary or beneficiaries or Executive’s
estate, as the case may be:
(i) the
compensation which has been earned through the date of termination of this
Agreement under this Section 4.5; and
(ii) the
balance in the Deferral Account in accordance with the provisions of Section 3.4
as they may apply.
(b) Benefits. Executive
shall have the right to receive benefits which have already vested or been
earned as of the date of termination of this Agreement under this Section 4.6
unless expressly prohibited by the terms of any plan, program or agreement
governing such compensation or benefits.
4.6 Termination on Mental or
Physical Disability of Executive.
(a) Right to
Terminate. If Executive is absent from work or found to be
physically or mentally incapable of performing Executive’s Duties and Specific
Duties for a period of thirty (30) consecutive days, or a cumulative period of
one hundred twenty (120) days in any one (1) calendar year, the Bank acting in
good faith may terminate this Agreement as of the termination date specified in
a written notice of termination delivered to Executive except that there is no
minimum Notice Period requirement.
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(b) Definition of
Disability. 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 one hundred twenty (120) days in any one (1) calendar
year.
(c) Compensation.
(i) Earned
Compensation. Executive shall have the right to receive
compensation which has already vested or been earned as of the date of
termination of this Agreement under this Section 4.6.
(ii) Deferred
Compensation. The Bank shall pay Executive the balance in the
Deferral Account in accordance with the provisions of Section 3.4 as they may
apply.
(d) Benefits.
(i) Earned
Benefits. Executive shall have the right to receive benefits
which have already vested or been earned as of the date of termination of this
Agreement under this Section 4.6, unless expressly prohibited by the terms of
any plan, program or agreement governing such compensation or
benefits.
(ii) Additional
Benefits. Executive shall be entitled to receive the Benefits
specified in Section 4.2(c) above in accordance with and subject to the terms of
such Section.
(e) Dispute re:
Disability. 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 mutually 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 Santa Xxxxxxx County Medical Association.
4.7 Termination on Change in
Control.
(a) Right to
Terminate. If within twelve (12) months following (a) a
merger, consolidation or reorganization of the Bank or Parent with or into
another corporation or business entity, immediately after which the shareholders
of Parent or the Bank immediately before the merger, consolidation or
reorganization own, directly or indirectly, 50% or less of the outstanding
voting securities of the surviving or resulting corporation or entity, or (b)
upon a sale or other disposition of all or substantially all of the assets of
Parent or the Bank other than to a wholly owned subsidiary of Parent or the
Bank, or (c) the acquisition of more than fifty percent (50%) of the combined
outstanding voting securities of Parent or the Bank by any person or group of
affiliated persons (other than as a result of the organization of a holding
company for Parent or the Bank) (collectively a “Change in Control”), (i) the
Bank terminates this Agreement, with or without cause, or does not renew the
Term or any Renewal Term of this Agreement or (ii) Executive terminates this
Agreement under Section 4.4 above, the following provisions shall
apply:
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(b) Compensation.
(i) Earned
Compensation. Executive shall have the right to receive
compensation which has already vested or been earned as of the date of
termination of this Agreement under this Section 4.6.
(ii)
Severance
Compensation. If, within one (1) year after the occurrence of
the Change in Control, Executive terminates his employment under this Agreement
for Good Reason (as defined below) or the Bank terminates Executive’s employment
under this Agreement other than for cause (as defined in Section 4.3(a) above),
the Bank shall pay to or on behalf of Executive one (1) year’s base salary and
the costs of Executive’s Benefits (as defined above) for a period of one (1)
year after the date of termination. The foregoing salary and benefits
shall be paid in monthly installments over such one year period in accordance
with the Bank’s normal practices. This provision shall apply only if
Executive terminates his employment for Good Reason or if the Bank terminates
Executive’s employment and shall not apply if Executive terminates his
employment on any other basis under Section 4.4 above.
(iii)
Deferred Compensation. The Bank shall pay Executive the balance in
the Deferral Account in accordance with the provisions of Section 3.4 as they
may apply.
(c) Benefits.
(i) Earned
Benefits. Executive shall have the right to receive benefits
which have already vested or been earned as of the date of termination of this
Agreement under this Section 4.7, unless expressly prohibited by the terms of
any plan, program or agreement governing such compensation or
benefits.
(ii) Additional
Benefits. Executive shall be entitled to receive the Benefits
specified in Section 4.2(c) above, in accordance with and subject to the terms
of such Section.
(d) For Good
Reason. For purposes of this Section 4.7, the term “Good
Reason” shall mean and include only the occurrence of any of the following
events:
(i) A
material change occurs in the functions, duties, responsibilities, reporting
relationship, location of work, and/or title of Executive which is not agreed to
by Executive, provided that none of (A) a change in Executive’s title following
the merger or consolidation of the Bank with or into any other corporation or
entity or (B) a temporary change any of the matters described in this clause (i)
for a period of no more than sixty (60) consecutive days as a result of
Executive’s incapacity or disability shall by itself constitute an event
described in this clause (i); or
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(ii) The
Bank requires Executive to perform any function or duty, the performance of
which would violate any material statute or public policy, the violation of
which could expose Executive to personal liability or which would have a
material adverse effect on Executive’s business reputation.
5. ARTICLE 5 – CONFIDENTIALITY
AND NON-SOLICITATION
5.1 Confidentiality and Trade
Secrets. Executive acknowledges that, in the course of his
employment with the Bank, Executive will acquire information about the Bank’s
borrowers and clients, terms and conditions of Bank transactions, pricing
information for the purchase or sale of assets, financing and securitization
arrangements, research materials, manuals, computer programs, formulas
analyzing, assets portfolios, techniques, data, marketing plans and tactics,
technical information, lists of asset sources, the processes and practices of
the Bank and related companies, information contained in electronic or computer
files, financial information, salary and wage information, and other information
that is designated by the Bank or its affiliates as confidential or that
Executive knows or should know is confidential information provided by third
parties and that the Bank or its affiliates are obligated to keep confidential
as well as other proprietary information of the Bank or its affiliates
(“Confidential Information”). Executive acknowledges that all
Confidential Information is and shall continue to be the exclusive property of
the Bank. Executive agrees not to disclose any Confidential
Information, either during the Term or thereafter, directly or indirectly, under
any circumstances or by any means, to any third person or party without the
prior written consent of the Bank.
5.2 Non-Solicitation of
Executives. Except as permitted by the prior written consent
of either the President/CEO of the Bank or the Chairman of the Board of
Directors, during the one (1) year period following the termination
date. Executive shall not directly or indirectly solicit for
employment or for independent contractor work from any executive of the Bank and
shall not encourage any such executive to leave the employment of the
Bank.
5.3 Non-Solicitation of
Customers. During the one (1) year period following the
termination date, Executive shall not directly: (a) solicit business from any
customer of the Bank; (b) encourage any customers to stop using the facilities
or services of the Bank; or (c) encourage any customers to use the facilities or
services of any competitor of the Bank.
5.4 Bank to Benefit from
Provisions. To the extent any provisions of this Article 5
relate in any way to Confidential Information and trade secrets of the Bank,
then the obligations of Executive set forth herein shall also extend to the Bank
and inure to its benefit.
6.
ARTICLE 6 – BANK’S
OWNERSHIP IN EXECUTIVE’S WORK
6.1 Bank’s
Ownership. Executive agrees that all inventions, discoveries,
improvements, trade secrets, formulas, techniques, processes, and know-how,
whether or not patentable, and whether or not reduced to practice, that are
conceived or developed during Executive’s employment with the Bank, either alone
or jointly with others, or relating to the Bank or to the banking industry
(“Bank’s Work”), and any written record that Executive may maintain of Bank’s
Work shall be owned exclusively by the Bank. Executive hereby assigns
to Bank all of Executive’s right, title and interest, if any, in such
intellectual property defined as Bank’s Work. Executive shall furnish
to Bank any and all such records pertaining to Bank’s Work immediately upon
request. Notwithstanding anything in this Section 6.1 to the
contrary, any inventions, discoveries, improvements, trade secrets, formulas,
techniques, processes and know-how conceived or developed by Executive solely
while providing Volunteer Services (as defined in Section 2.5 above) shall not
be considered Bank Work.
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6.2 Return of Bank’s Property
and Materials. Upon termination of his employment with the
Bank, Executive shall deliver to the Bank all Bank property and materials that
are in Executive’s possession or control, including Bank’s Work, within five (5)
calendar days.
6.3 Bank to Benefit from
Provisions. To the extent any provisions of this Article 6
relate in any way to information, property, rights, projects, ventures, or
inventions of the Bank, then the obligations of Executive set forth in this
Article 6 shall also extend to the Bank and inure to its benefit.
7. ARTICLE 7 –
ARBITRATION
7.1 Obligation to
Arbitrate. If any dispute, controversy or claim arises out of
or relates to this Agreement, such dispute, controversy or claim shall be
settled by binding arbitration only, in accordance with the Rules of Judicial
Arbitration and Mediation Services, using legal principles and damages according
to California Law, and shall be selected by and agreed upon by both
parties. Judgment upon the arbitrator’s award shall be entered in the
jurisdiction thereof. The arbitrator shall determine which party is
the prevailing party and shall include in the award the prevailing party’s
actual attorney’s fees and costs. The arbitrator shall have no
authority to grant either punitive or consequential damages to any
party. Nothing in the Article 7 shall prohibit or limit the right of
the Bank to commence suit or other judicial proceedings seeking injunction or
other equitable relief in the event of Executive’s breach or threatened breach
of any of his obligations under any of Sections 5 or 6 of this Agreement or
Sections 5 or 6 of the Original Agreement.
7.2 Arbitrator. If
the parties cannot agree upon the selection of an arbitrator within ten (10)
days of written demand upon the other, the parties shall choose from a list to
be provided by the main Los Angeles office of the American Arbitration
Association (“AAA”) or of the Federal Mediation and Conciliation Service using
the strike method, with the first to strike being determined by the flip of a
coin.
7.3 Fee
Deposit. As soon as practicable after selection of the
arbitrator, the arbitrator or their designated representative shall determine a
reasonable estimate of anticipated fees and costs setting forth that party’s pro
rata share of said fees and costs. Thereafter, each party shall,
within ten (10) days of receipt of said statement, deposit said sum with the
arbitrator. Failure of any party to make such a deposit shall result
in forfeiture by the non-depositing party of the right to prosecute or defend
the claim which is the subject of the arbitration but shall not otherwise serve
to xxxxx, stay, or suspend the arbitration.
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7.4 Hearing
Schedule. Unless the parties agree otherwise, within one
hundred and twenty (120) days of the selection of the arbitrator, a hearing
shall be conducted at a time and a place in Santa Xxxxxxx County agreed upon by
the parties. Arbitration shall be conducted in accordance with AAA
employment rules and procedures (“AAA Rules”) then in effect. In the
event of any inconsistency between AAA Rules and this Agreement, the terms of
this Agreement shall prevail.
7.5 Award. Within
thirty (30) days of conclusion of the arbitration hearing, the arbitrator shall
issue an award accompanied by a written decision explaining the basis for the
arbitrator’s award. The decision of the arbitrator shall be final,
binding, and non-appealable, except as otherwise permitted by Law, and may be
enforced as a final judgment in any court of competent
jurisdiction.
8. ARTICLE 8 –
MISCELLANEOUS
8.1 Parent as a
Party. Parent is a party to this Agreement solely for purposes
of effecting the grant of the Options contemplated in Section 3
above. Parent shall have no liability or obligation to Executive with
respect to the Bank’s performance or non-performance of any of its obligations
under this Agreement.
8.2 Injunctive
Relief. Executive hereby acknowledges and agrees that it would
be difficult to fully compensate the Bank for damages for a breach or threatened
breach of any of the provisions of Sections 5 or 6 hereof or Sections 5 or 6 of
the Original Agreement. Accordingly, Executive specifically agrees
that the Bank shall be entitled to temporary and permanent injunctive relief to
enforce the provisions of Sections 5 or 6 hereof or Sections 5 or 6 of the
Original Agreement and that such relief may be granted without the necessity of
proving actual damages. The foregoing provision with respect to
injunctive relief shall not, however, prohibit the Bank from pursuing any other
right or remedies available to the Bank for such breach or threatened breach,
including but not limited to, the recovery of damages from Executive or any
third parties.
8.3 Authorized Representative of
the Bank. Although Executive is an officer of the Bank, any
and all actions and decisions to be taken or made by the Bank under this
Agreement or with respect to the employment relationship described in this
Agreement, and any and all consents, approvals and agreements permitted or
required to be given or made on the part of the Bank under this Agreement, shall
be made and accomplished by the Bank only through the actions taken, in writing,
of its Chief Financial officer or such other person or persons as the Board of
Directors may from time to time designate.
8.4 Tax
Advice. Executive represents and warrants to the Bank that he
has sought and received independent professional advice concerning the treatment
of the transactions contemplated by this Agreement under the Code, the rules and
regulations promulgated thereunder by the Internal Revenue Service (the “IRS”)
and the income tax laws of any other applicable taxing jurisdictions and that he
is not relying upon any representation, warranty or other statement made by the
Bank, its counsel or anyone acting on behalf of the Bank with respect to such
treatment or the structuring of the compensation payable under this Agreement as
assuring any particular income tax treatment. Executive understands
and agrees that neither the Bank, its counsel nor anyone acting on behalf of the
Bank has made or is making any representation, warranty or other statement with
respect to such income tax treatment.
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8.5 Notice. Any
notice or other communication required or permitted under this Agreement shall
be in writing and shall be deemed received (i) when personally delivered or (ii)
if mailed, one (1) week after having been placed in the United States mail,
registered, or certified, postage prepaid, addressed to the party to whom it is
directed at the address listed below or (iii) if sent by facsimile, email or
other form of electronic transmission, one (1) business day after the notice is
transmitted to the facsimile number, email address or other address specified on
the signature page of this Agreement and the transmitting party either receives
confirmation of transmission or does not receive notice of
non-delivery.
8.6 Entire
Agreement. This Agreement, including any documents expressly
incorporated into it by the terms of this Agreement, constitutes the entire
agreement between the parties. This Agreement supersedes and rescinds
any and all prior oral and written agreements, understandings, negotiations and
discussions relating to the employment of Executive by Bank. This
Agreement may not be modified, supplemented or amended by oral agreement, but
only by an agreement in writing signed by Bank and Executive.
8.7 Amendment. This
Agreement may be amended only in writing duly executed by all of the parties
hereto. Notwithstanding anything in this Agreement to the contrary,
any amendment to Section 3.4 of this Agreement shall be made in compliance with
the requirements of Section 409A of the Code and the Treasury Regulations
thereunder.
8.8 Survival of Certain
Provisions. Notwithstanding anything to the contrary contained
herein, in the event of any termination of this Agreement, the rights and
obligations of the parties under the terms of this contract as they may apply
shall survive such termination and shall continue in full and effect until fully
performed.
8.9 Waivers. All
rights and remedies of the parties hereto are separate and cumulative and no one
of them, whether exercised or not, shall be deemed to limit or exclude any other
rights or remedies which the parties hereto may have. Neither party
hereto shall be deemed to waive any rights or remedies under this Agreement
unless such waiver be in writing and signed by such party. No delay
or omission on the part of either party hereto in exercising any right or remedy
shall operate as a waiver of such right or remedy or any other right or
remedy. A waiver of any right or remedy on any one occasion shall not
be construed as a bar to or waiver of any such right or remedy on any future
occasion.
8.10 Successors and
Assigns. The Bank shall require any successor or assignee,
whether direct or indirect, by purchase, merger, consolidation or otherwise to
all or substantially all of the business or assets of the Bank to expressly
assume and agree to perform in writing this Agreement in the same manner and to
the same extent that the Bank would be required to perform it if no such
succession or assignment had taken place. This Agreement shall inure
to the benefit of and be binding upon the Bank, its successors and assigns, and
upon Executive and Executive’s heirs, executors, administrators and legal
representatives. No party to this Agreement may delegate its or their
duties hereunder without the prior written consent of the other party to this
Agreement.
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8.11 Governing
Law. This Agreement is entered into in the State of
California and California law shall in all respects govern the validity,
construction and interpretation of this Agreement.
8.12 Attorneys’
Fees. In any arbitration, suit or other action between the
parties seeking enforcement of any of the terms and provisions of this
Agreement, the prevailing party in such arbitration, suit or other action shall
be awarded, in addition to damages, injunctive or other relief, its reasonable
costs and expenses, not limited to taxable costs and reasonable attorneys’
fees. In order for a party to change its address or other information
for the purpose of this section, the party must first provide notice of that
change in the manner required by this section.
9.
ARTICLE 9 – RECEIPT OF
AGREEMENT
9.1 Receipt of
Agreement. Each of the parties hereto acknowledges that they
have 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 caused this Employment and
Confidentiality Agreement to be executed as of the Effective Date set forth
above.
ACCEPTED
AND AGREED:
EXECUTIVE:
|
By:
|
||
| Name: |
Xxxxxxx
X. Favor
|
Address
for Notice:
0000
Xxxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
(000)
000-0000
COMMUNITY
WEST BANK
A
National Banking Association
|
By:
|
||
|
Xxxxx
Xxxxx, President/CEO
|
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Address
for Notice:
000 Xxxx
Xxxxxx
Xxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxxx, Chairman
(T) (000)
000-0000
(F) (000)
000-0000
COMMUNITY
WEST BANCSHARES
|
By:
|
||
|
Xxxxx
Xxxxx, President/CEO
|
000 Xxxx
Xxxxxx
Xxxxxx,
XX 00000
Attn:
Xxxxx Xxxxx, President/CEO
(T) (000)
000-0000
(F) (000)
000-0000
DESIGNATED
HEIRS
Set forth
below is a list of the names and addresses of Executive’s heirs to whom the Bank
shall pay the balance of the Deferred Account in the event of Executive’s
death.
|
NAME
|
ADDRESS
|
PERCENTAGE
INTEREST
|
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