EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this 23rd
day of October 1997 by and between Bay View Capital Corporation (the
"Corporation"), a Delaware Corporation, and Xxxxxx X. Xxxx (the "Executive").
R E C I T A L S:
A. The parties desire to enter into this Agreement setting forth the terms
and conditions of the employment relationship between the Corporation and the
Executive.
B. The Board of Directors of the Corporation (or "Board") believes it is in
the best interests of the Corporation to enter into this Agreement with the
Executive in order to assure continuity of management of the Corporation, and
has approved and authorized the execution by the Corporation of this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises herein contained, the parties hereto agree as follows:
1. Executive's Title, Duty, Authority and Time Commitment.
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a. Title. The Executive's position and title with the Corporation shall
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be that of Executive Vice President, Director of MIS and Servicing.
b. Duties and Authority. The Executive's duties and authority shall be
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consistent with those of an Executive Vice President, Director of MIS and
Servicing. The Executive shall render such administrative and management
services to the Corporation as are customarily performed by persons employed in
the banking and financial services industry in a similar executive capacity. In
addition, the Executive shall perform such other duties as the Board, or its
authorized representative, may from time to time require. All duties performed
by the Executive hereunder shall be in accordance with such reasonable standards
as are established from time to time by the Board, or its authorized
representative, and performance evaluations shall be conducted by or under the
direction of the Board and reviewed with the Executive annually.
c. Time Commitment. During the "Term of this Agreement", as defined in
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Section 5 of this Agreement, unless the Executive has obtained the prior written
consent of the Board, or its authorized representative,
(1) The Executive shall render his full productive time and services
to the Corporation, keeping normal business hours, but is authorized to engage
in banking trade association and related activities during normal business hours
which, in his judgment, with the concurrence of his immediate supervisor, are in
the business interests of the Corporation; and
(2) The Executive shall not render personal services to any other
person or entity for compensation, either as an Executive, consultant,
director or officer, if such services
would conflict with the Executive's duty to the Corporation or adversely affect
the Executive's judgment in the performance of his responsibilities. Executive
shall remain free to engage in community, charitable, political and personal
pursuits which do not interfere with his performance under this Agreement.
2. Compensation. The Corporation agrees to pay the Executive during the Term
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of this Agreement a base salary as follows: $190,000.00 per annum, with the
salary to be reviewed on July 1, 1998, and annually on each July 1st thereafter
during the Term of this Agreement. Salary increases are not guaranteed or
automatic. The salary provided for in this Agreement shall be payable semi-
monthly in accordance with the practices of the Corporation.
3. Discretionary Bonuses. The Executive shall be entitled to participate in
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discretionary bonuses and incentive payments which are now or become authorized
and declared by the Board or its authorized representative. Executive shall be
entitled to an annual performance bonus of up to forty percent (40.00%) of base
salary depending upon the achievement of specific goals set by the Board of
Directors.
4. Additional Benefits.
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a. Participation in Executive Benefit Plans. The Executive shall be
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entitled to participate in any plan of the Corporation, as such plan may from
time to time provide, relating to stock options, stock purchases, pension,
thrift, deferred profit-sharing, group insurance coverage, education or
retirement or other supplemental Executive benefits that the Corporation has
adopted or adopts for the benefit of its Executives.
b. Fringe Benefits. The Executive shall be entitled to participate in
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any other program which is or becomes applicable to the Corporation's
executives, as such program may from time to time provide including a reasonable
expense account, the payment of reasonable expenses for attending educational
seminars and annual and periodic meetings of trade associations, and other
benefits which are commensurate with the responsibilities and functions to be
performed by the Executive under this Agreement.
5. Term.
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a. Initial Term and Automatic Extension. The initial term of employment
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under this Agreement shall be for a period commencing on October 23rd, 1997 and
ending on December 31, 1997. On January 1, 1998 and on each January 1st
thereafter, the Term of this Agreement shall be extended automatically by one
additional year beyond the then-current expiration date, unless either the
Corporation or the Executive gives contrary written notice to the other not less
than 45 days in advance of the date on which this Agreement would otherwise be
extended. Reference herein to the "Term of this Agreement" shall refer to the
term as so extended. Section 9, entitled "Change in Control," shall survive the
expiration of this Agreement for a period of one (1) year so long as Executive
is employed by the Corporation. If Executive is terminated by the Corporation
without cause pursuant to Section 7a(2), said Section 9 shall survive this
Agreement for a period of one (1) year from the date of termination of
employment.
b. Consequences of Non-Extension. If this Agreement is not extended,
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on the expiration of the Term of this Agreement, the Executive shall be deemed
to be employed by the Corporation for no specific term and the Executive's
rights as an Executive of the Corporation shall be no less than those provided
by the laws of the State of California and the laws of the United States;
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provided, however, that such post expiration employment may be terminated at any
time by the Executive or by the Board, or its authorized representative, with or
without cause by delivery to the Executive of a written notice (the "Termination
Notice") of such termination.
6. Voluntary Absences. At such reasonable times as the Board, or its
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authorized representative, shall in its discretion permit, the Executive shall
be entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment under this Agreement. All such voluntary absences
shall count as holidays, vacation time, floating holidays, sick leave,
compensatory time or other paid time off as specified in Corporation policy,
provided that:
a. Vacation Entitlement. The Executive shall be entitled to an annual
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paid vacation of 20 days per year.
b. Timing of Vacation. Vacations shall be scheduled in a reasonable
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manner by the Executive and subject to the Corporation's needs, except that the
Executive shall take not less than ten (10) days vacation consecutively in each
calendar year.
7. Termination of Employment.
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a. Termination by Corporation. The Executive's employment under this
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Agreement may be terminated, with or without cause, at any time by the Board, or
its authorized representative, by delivery to the Executive of a written notice
(the "Termination Notice") of such termination. The Termination Notice shall
state the effective date of such termination and whether such termination is for
"cause," as defined in Section 7a(1), or without cause pursuant to Section
7a(2). Unless the Termination Notice states that the termination is for cause
and states with reasonable particularity the cause, the termination shall be
deemed to be without cause pursuant to Section 7a(2). In the event an
arbitrator appointed pursuant to Section 13 of this Agreement determines that a
purported termination for cause was in fact without proper cause, the
termination shall nonetheless be effective, but the Executive shall be entitled
to the severance payment pursuant to Section 7a(2) hereof.
(1) Termination by Corporation for Cause. The Executive's
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employment under this Agreement may be terminated at any time by the Board, or
its authorized representative, for "cause," which shall include, but not be
limited to the following:
(a) The commission by the Executive of an act of misconduct
(including, but not limited to, the violation of any law, rule, regulation or
cease and desist order applicable to the Executive or the Corporation or its
insured subsidiaries), or an act which constitutes a breach of a fiduciary duty
owed by the Executive involving personal profit;
(b) The Executive's material breach of this Agreement,
dishonesty, incompetence, willful misconduct, habitual unexcused absence from
work, intentional failure to perform duties, or gross negligence in the
performance of stated duties;
(c) The Executive's becoming physically or mentally incapable
of performing the essential functions of his employment position, with or
without reasonable accommodation, for a period in excess of the applicable leave
entitlement mandated by Federal or State law; or
(d) Any criminal conviction of the Executive (other than for a
minor traffic violation or similar offense), whether or not in the line of duty.
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In the event of termination for cause under this Section 7a(1), the Executive
shall have no right to receive compensation or other benefits under this
Agreement for any period after such termination.
(2) Termination by Corporation Without Cause. The
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Executive's employment under this Agreement may be terminated at any time by the
Board, or its authorized representative, without cause; provided, however, that
unless the termination of this Agreement is for "cause," as set forth in Section
7a(1), or pursuant to Sections 7b, 7c, or 9, then, upon such termination, in
addition to any benefits that had accrued to the date of termination but in lieu
of any rights or benefits that would have accrued following such termination,
the Executive shall be entitled, upon execution of a release acceptable to the
Board, or its authorized representative, to a lump sum severance payment of
twelve(12) months salary.
b. Termination by the Executive. This Agreement may be
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terminated by the Executive at any time upon 30 days written notice to the
Corporation or upon such shorter period as may be agreed upon between the
Executive and the Board.
c. Termination by Death. In the event of the death of the
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Executive during the Term of this Agreement, the Executive's estate, or such
person as the Executive may have previously designated in writing for group
insurance purposes, shall be entitled to receive the salary due the Executive
through the last day of the calendar month in which his death shall have
occurred.
8. Disability. If the Executive shall become disabled or
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incapacitated to the extent that he is unable to perform the essential functions
of his employment position, with or without reasonable accommodation, he shall
be entitled to receive disability benefits of the type provided for other
employees of the Corporation. In such event, 90 days after the last day the
Executive worked, any rights of the Executive to receive the salary provided in
Section 2 of this Agreement shall be suspended until the Executive is able to
resume performance of his duties.
9. Change in Control. If during the Term of this Agreement, or
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within one (1) year following the expiration of this Agreement and if Executive
is employed by the Corporation, there is a "change in control," as hereinafter
defined, of the Corporation, the Executive shall be entitled, upon execution of
a release acceptable to the Board or its authorized representative, to a
severance payment in the event the Executive's employment is terminated, other
than for "cause" as set forth in Section 7a(1) or pursuant to Sections 7b
(except as provided below), or 7c, within twenty-four (24) months after the
change in control. The amount of this payment shall equal two hundred
percent(200%) of the Executive's annual salary as of the date of termination and
shall be in lieu of any severance payment that would be due Executive under
Section 7a(2); provided, however, that in no event shall the amount of such
payment combined with other payments to be paid upon Executive's termination or
upon said change in control, exceed two hundred ninety-nine percent (299%) of
the Executive's "base amount" of compensation, as discussed in Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code"), or such other amount
as would from time to time constitute an excess parachute payment nondeductible
or taxable respectively under Code Sections 280G or 4999 as they may be amended.
Except as provided above, such termination or severance payment shall be in
addition to all other amounts payable to the Executive pursuant to this
Agreement; provided, however, that the amount of termination or severance
payment described in the preceding sentence shall be reduced to the extent that
such additional amounts are included in the computation of the payment described
in Section 280G(b)(2) of the Code. This termination or severance payment shall
also be made in the case of a termination of employment by the Executive
pursuant to Section 7b of this Agreement within twenty-four (24) months after a
change in control because during such twenty-four (24) month period
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there has been a material diminution of or interference with the Executive's
duties, responsibilities and benefits as Executive Vice President of the
Corporation. By way of example and not by way of limitation, any of the
following actions, if unreasonable or materially adverse to the Executive, shall
constitute such diminution or interference unless consented to in writing by the
Executive: (i) a change in the principal workplace of the Executive to a
location more than 25 highway miles from the Corporation's main office; (ii) a
reduction or adverse change in the salary or benefits which had theretofore been
provided to the Executive, other than as part of an overall program applied
uniformly and with equitable effect to all members of senior management of the
Corporation; or (iii) a change in Executive's title.
Any payments made to the Executive pursuant to this Agreement, or otherwise,
are subject to and conditioned upon their compliance with 12 U.S.C. ' 1828(k)
and any regulations promulgated thereunder.
The term "change in control" is defined solely as any acquisition of control
of the Corporation (other than pursuant to the acquisition by a trustee or other
fiduciary holding securities under an Executive benefit plan of the
Corporation), as defined in 12 C.F.R. ' 574.4, or any successor regulation,
which would require the filing of an application for acquisition of control or
notice of change in control as set forth in 12 C.F.R. ' 574.3, or any successor
regulation.
10. Successors and Assigns. The terms, provisions, covenants, and conditions
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of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided, however, that the
Executive may not sell, assign, pledge, hypothecate or otherwise transfer this
Agreement or any part thereof without the prior written consent of the
Corporation, which consent may be withheld by the Corporation for any reason it
deems appropriate. "Successors and assigns" shall mean, in the case of the
Corporation, any successor pursuant to a merger, consolidation or sale or
transfer of all or substantially all of the assets of the Corporation.
11. Indemnification. The Corporation hereby agrees that the Corporation
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shall indemnify the Executive to the fullest extent permitted by the
Corporation's Bylaws and by Delaware corporate law.
12. Disclosure of Information. Executive recognizes that as an executive of
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the Corporation, Executive occupies a position of trust with respect to much
business information of a secret or confidential nature which is the property of
the Corporation and which will be imparted to Executive from time to time in the
course of Executive's duties. Executive therefore agrees that Executive shall
not at any time, whether in the course of his employment or thereafter, use or
disclose directly or indirectly to any person outside the Corporation any of
such information, except as required in the ordinary course of Executive's
duties under this Agreement.
13. Arbitration. The parties hereby agree that any controversy or dispute
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arising out of or relating to this Agreement shall be resolved pursuant to this
Section 13.
a. Agreement to Negotiate. Prior to submitting any controversy,
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dispute or claim arising out of, or relating to, this Agreement to arbitration,
the parties hereto agree to observe the following procedures:
(1) The party desiring to submit any such controversy, dispute or
claim to arbitration (the "claimant") first shall give written notice thereof to
the other party (the "recipient") setting forth in detail the pertinent facts
and circumstances relating to such controversy,
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dispute or claim;
(2) The recipient shall have a period of fifteen (15) days after
receipt of written notice in which to consider the controversy, dispute or claim
which is the subject of the notice and to furnish in writing to the claimant a
written statement of the recipient's position;
(3) Within seven (7) days of claimant's receipt of recipient's
written statement, the parties shall meet in an effort to resolve amicably any
differences which may exist and, failing such resolution, either or both of the
parties shall have the right to submit the matter to arbitration.
b. Procedure for Arbitration.
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(1) The parties hereby agree that any controversy, dispute or claim
arising out of, or relating to, this Agreement, or breach of this Agreement,
including disputes concerning termination of this Agreement, shall be settled by
arbitration in San Mateo, California. This agreement to arbitrate shall be
specifically enforceable. Judgment upon any award rendered by an arbitrator may
be entered in any court having jurisdiction.
(2) Any demand for arbitration must be served on the other party
within forty-five (45) days of the act or omission giving rise to the
controversy, dispute or claim.
(3) There shall be one impartial arbitrator chosen by the parties
from a list procured from the California Mediation and Conciliation Service.
(4) The arbitrator shall not extend, modify or suspend any of the
terms of this Agreement.
(5) The decision of the Arbitrator within the scope of the
submission shall be final and binding on all parties, and any right to judicial
action on any matter subject to arbitration hereunder is hereby waived (unless
otherwise provided by applicable law), except suit to enforce this arbitration
award.
(6) Executive agrees that such arbitration shall be the exclusive
forum for any controversy, dispute or claim arising out of or relating to this
Agreement, or breach or termination of this Agreement. Executive further
expressly agrees that in arbitration his exclusive remedy shall be a money award
not to exceed the amount of wages he would have earned under this Agreement but
for the alleged violation and the Executive shall not be entitled to any other
remedy, at law or in equity, including but not limited to reinstatement, other
money damages, punitive damages and/or injunctive relief.
(7) Each party shall pay such party's own attorney or other
representative, and the expenses of such party's witnesses and all other
expenses connected with his case. Other costs of the arbitration, including the
cost of any record or transcript of the arbitration, administrative fees,
arbitrator's fees, and all other fees and costs, shall be borne by the
Corporation; provided, however, that at the discretion of the Arbitrator, and
upon a preponderance of the evidence that one of the parties has engaged in
malice, fraud or oppression relating to the termination of the Executive's
employment, reasonable attorney's fees and costs may be awarded to the other
party.
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14. General Provisions.
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a. Notices. Any notice, request, demand or other communication
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required or permitted hereunder shall be deemed to be properly given when
personally served in writing and when deposited in the United States mail,
registered or certified, postage prepaid, addressed to the party at the last
address supplied to the sending party by the addressed party.
b. Waiver. The waiver by any party of a breach of any provision of this
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Agreement by the other shall not operate or be construed as a waiver of any
subsequent breach of the same provision or any other provision of this
Agreement.
c. Entire Agreement. Except as provided herein, this Agreement
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contains the entire agreement of the parties. It supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Executive by the Corporation. 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.
The Offer and Acceptance Letter ("Offer") of September 26, 1997, shall be
attached to this Agreement and incorporated by this reference. If any conflict
arises between the Offer and this Agreement, the Offer shall control.
d. Amendments. No amendments or additions to this Agreement shall be
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binding unless in writing and signed by both parties, except as herein otherwise
provided.
e. Paragraph Headings. The paragraph headings used in this Agreement
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are included solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
f. Severability. The provisions of this Agreement shall be deemed
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severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
g. Governing Law. Except where federal law governs, this Agreement is
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to be governed by and construed under the internal substantive laws of the State
of California (and not under conflict of law principles) as such laws apply to
contracts made and to be performed entirely in the State of California.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first hereinabove written.
BAY VIEW CAPITAL CORPORATION,
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
THE EXECUTIVE
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
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