EXHIBIT 10.14.6
EMPLOYMENT AGREEMENT
--------------------
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of January 1,
1998, by and between PACIFIC CREST CAPITAL, INC., a Delaware corporation
(hereinafter referred to as "EMPLOYER") and XXXXXX XXXXX (hereinafter
referred to as "EMPLOYEE"), on the following terms and conditions:
1. TERM OF AGREEMENT; DUTIES
(a) TERM. EMPLOYER hereby agrees to employ EMPLOYEE as the Senior
Vice President of EMPLOYER for a two year period, commencing on the date
hereof, and EMPLOYEE hereby agrees to accept such employment for such period,
subject to earlier termination under the circumstances provided herein. The
term of this Agreement shall be extended automatically to cover successive
periods of one year each unless, at least one year prior to the end of the
original or any renewal term hereof, EMPLOYEE gives written notice to the
President of EMPLOYER, or EMPLOYER gives written notice to EMPLOYEE, of an
intent to terminate this Agreement at the end of such term.
(b) DUTIES. EMPLOYEE, subject to the direction and control of the
Board of Directors, shall devote all of EMPLOYEE'S productive time, attention
and energies to discharging, and shall perform, such executive duties and
managerial responsibilities as may from time to time be specified by
EMPLOYER, and will use EMPLOYEE'S best efforts to promote the interest of
EMPLOYER and its subsidiaries and affiliates and the performance of such
duties and responsibilities shall be EMPLOYEE'S exclusive employment for
compensation; provided, however, that nothing herein contained shall be
deemed to limit EMPLOYEE'S right to make passive investments in
non-affiliated companies.
1
(c) EXTENSION OF TERM OF EMPLOYMENT UPON CERTAIN CORPORATE CHANGES.
For purposes of this paragraph (c), "Extension Date" shall mean the effective
date of a transaction pursuant to which (i) EMPLOYER ceases to be an
independent publicly owned corporation, (ii) all or substantially all of the
assets of EMPLOYER (including by not limited to the stock of EMPLOYER'S
subsidiaries)are sold, (iii) all or substantially all of the assets, or a
majority of the outstanding capital stock, of Pacific Crest Bank are sold to
a purchaser which is not controlled by EMPLOYER, (iv) EMPLOYER is merged with
or into another corporation which is to be the surviving corporation, or (v)
a majority of the outstanding capital stock of EMPLOYER becomes owned or
held, directly or indirectly, in such transaction or series of transactions
by a person or entity other than EMPLOYER, its subsidiary or affiliate, or by
a "group" as such term is defined in Rule 13 d-1 of the Securities and
Exchange Act of 1934, which prior to such transaction or series of
transactions did not include EMPLOYER, its subsidiaries or affiliates.
Notwithstanding paragraph (a) of this Section 1, the term of employment
hereunder shall automatically be extended on the first to occur of any
Extension Date. On such Extension Date, the term of employment hereunder
shall be extended to cover the two-year period commencing on such Extension
Date.
2. COMPENSATION. EMPLOYER shall compensate EMPLOYEE for the services to
be rendered by EMPLOYEE hereunder during the term of EMPLOYEE'S employment,
including all services to be rendered as an officer and executive of
EMPLOYER, its subsidiaries and affiliates, at an annual base rate to be
determined from time to time, and in no event less frequently than annually,
during the term of this Agreement as follows (the "Base Rate"):
(a) The Base Rate shall be $97,344 per year during the period from
the date hereof through December 31, 1998; and
2
(b) The Base Rate for each subsequent calendar year or portion
thereof during which this Agreement is in effect shall be no less than the
Base Rate for the prior calendar year and may be increased at the sole
discretion of the Board of Directors of EMPLOYER based on the performance of
EMPLOYER and the individual merit of EMPLOYEE.
The applicable Base Rate shall be payable not less frequently than
monthly in accordance with the regular salary procedure from time to time
adopted by EMPLOYER. There shall be deducted from all compensation paid to
EMPLOYEE such sums, including but not limited to Social Security, income tax
withholding, employment insurance, and any and all other such deductions as
EMPLOYER is by law obligated to withhold. Notwithstanding anything to the
contrary contained herein, the salary of EMPLOYEE may be increased by the
Board of Directors of EMPLOYER but shall, for any employment year covered by
this Agreement, be at least at a Base Rate herein above set forth, plus any
incentive arrangements to be determined by the Board of Directors.
EMPLOYEE shall be reimbursed for EMPLOYEE'S reasonable and actual
out-of-pocket expenses incurred by EMPLOYEE in performance of EMPLOYEE'S
duties and responsibilities hereunder, provided EMPLOYEE shall first furnish
proper vouchers and expense accounts setting for the information required by
the United States Treasury Department for deductible business expenses.
EMPLOYEE shall be entitled to participate in and shall be included
in such insurance, pension, profit sharing, stock options, stock purchase and
other employee benefit plans ("Benefit Plans") of EMPLOYER as are in effect
from time to time during the term of this Agreement for other employees of
EMPLOYER who are employed by EMPLOYER in similar executive capacities as
EMPLOYEE; provided, however, that nothing in this Agreement shall in any way
require EMPLOYEE to be covered by any Benefit Plan if EMPLOYEE'S
participation is not required by the terms of the Benefit Plan.
3
3. DISABILITY. If, on account of any physical or mental disability,
EMPLOYEE shall fail or be unable to perform under this Agreement for any
period of one hundred twenty (120) consecutive days or for an aggregate
period of one hundred twenty (120) or more days during any consecutive
twelve-month period, then and in that event EMPLOYER may, at its option, at
any time thereafter, upon written notice to EMPLOYEE, terminate the employment
relationship provided for in this Agreement. In such event, EMPLOYEE'S
requirement to render services hereunder and EMPLOYER'S requirement to
compensate EMPLOYEE hereunder shall terminate and come to an end upon the
date such notice is given as if such date were the termination of this
Agreement; provided, however, that if EMPLOYER terminates the employment
relationship as a result of EMPLOYEE'S disability, then EMPLOYEE shall be
entitled to receive, as disability compensation, payments at the Base Rate
previously set forth for the remaining term of this Agreement payable not
less frequently than monthly. The option to terminate the employment in the
event of a disability herein provided is separate, distinct and additional
to any right on the part of EMPLOYER to terminate this Agreement, as provided
in Section 6 hereof. EMPLOYER may, at its option, apply for disability income
insurance and, if so, any obligation on the part of EMPLOYER to pay EMPLOYEE
any payments on account of any physical or mental disability of EMPLOYEE as
specified above, shall be credited with the amount of any payments to
EMPLOYEE under any such disability income policy but not any payments to
EMPLOYEE under any state disability insurance.
4. DEATH. In the event that EMPLOYEE should die during the term hereof,
this Agreement will terminate. In such event, EMPLOYEE'S personal
representative shall be entitled to receive, as a death benefit, in addition
any other payments which EMPLOYEE'S
4
personal representative may be entitled to receive under any Benefit Plans,
payments for a period of 12 months at the Base Rate that would have then been
payable to EMPLOYEE under this AGreement payable not less frequently than
monthly.
EMPLOYER may maintain life insurance on the life of EMPLOYEE, in favor
of the EMPLOYER. EMPLOYEE shall have no interest whatsoever in any such
policy or policies, except as otherwise provided in any split dollar life
insurance agreements, but EMPLOYEE shall at the request of EMPLOYER submit to
such medical examinations, supply such information, consent to such blood
tests and execute such documents as may be required by the insurance company
or companies to whom EMPLOYER has applied for such insurance.
5. VACATION. EMPLOYEE shall be entitled to vacation time for each
calendar year during the term of this Agreement in accordance with EMPLOYER'S
vacation policy for senior management executives from time to time in effect.
6. TERMINATION FOR CAUSE. The EMPLOYER shall have the unrestricted
right to discharge the EMPLOYEE at any time for cause. Cause for discharge,
to be determined in the EMPLOYER'S sole discretion, shall include, but shall
not be limited to, theft or embezzlement by the EMPLOYEE from the EMPLOYER or
its affiliates; fraud or other acts of dishonesty by the EMPLOYEE in the
conduct of the EMPLOYER'S business or the fulfillment of EMPLOYEE'S assigned
responsibilities hereunder; gross neglect by the EMPLOYEE of EMPLOYEE'S
duties hereunder; the EMPLOYEE'S conviction of, or plea of NOLO CONTENDERE
to, any felony or any crime involving moral turpitude; the EMPLOYEE'S failure
to follow the lawful and reasonable instructions of the Board of Directors of
EMPLOYER or the President; or any material breach by the EMPLOYEE of any term,
provision or covenant of this Agreement. The occurrence of any event
constituting cause for discharge shall permit but not require the
5
EMPLOYER to terminate the EMPLOYEE for cause; provided, however, that the
EMPLOYER'S decision not to terminate the EMPLOYEE upon the occurrence of an
event constituting cause for discharge shall not operate as a waiver of its
rights provided in this Section 6 or otherwise. The decision to so terminate
the EMPLOYEE, to impose lesser discipline, to take other action, or to take no
action in response to any such occurrence shall be in the EMPLOYER'S sole and
exclusive discretion.
If the EMPLOYER terminates the EMPLOYEE for cause, the EMPLOYER shall be
obligated to provide to the EMPLOYEE only the Base Rate salary provided for
in Section 2 through the date of termination of the EMPLOYEE at the rate in
effect on the date of such termination of the EMPLOYEE.
7. CONFIDENTIAL INFORMATION; COMPETITION
(a) EMPLOYEE acknowledges that, in the course of employment
hereunder, EMPLOYEE has and will become acquainted with confidential
information belonging to EMPLOYER. This information may relate to persons,
firms and corporations which are or become customers or accounts of EMPLOYER
or of a subsidiary or affiliate of EMPLOYER during the term of this
Agreement. None of the confidential information which EMPLOYEE may have or
may obtain prior to the termination of this Agreement shall be disclosed to
any other person either before or after the termination of the Agreement
without the prior written permission of EMPLOYER, except such disclosures as
may be necessary to the performance by EMPLOYEE of EMPLOYEE'S duties
hereunder or unless such information is a part of the public domain, is
within the prior knowledge of any such other person or is published anywhere
without EMPLOYEE'S fault.EMPLOYEE shall return all tangible evidence of all
such confidential information to EMPLOYER prior to or at the termination of
EMPLOYEE'S employment.
6
(b) EMPLOYEE expressly covenants and agrees that for a period of
two years after the date of termination of EMPLOYEE'S employment with
EMPLOYER, EMPLOYEE will not, acting alone or in conjunction with others,
directly or indirectly, solicit business of any type engaged in by EMPLOYER
(or any subsidiary or affiliate of EMPLOYER) from any person or business
which is an account, customer of client of EMPLOYER (or any subsidiary or
affiliate of EMPLOYER), or induce or attempt to influence any such account,
customer or client to curtail or cancel its business with EMPLOYER (or any
subsidiary or affiliate of EMPLOYER).
(c) Because the remedy at law for any breach of the provisions of
this Section 7 would be inadequate, EMPLOYEE hereby consents to the granting,
by any court having jurisdiction and without the necessity of providing
actual monetary loss, of an injunction or other equitable relief enjoining
any breach of such provisions.
(d) EMPLOYEE and EMPLOYER recognize that the laws and public
policies of the various states of the United States may differ as to the
validity and enforceability of covenants and undertakings similar to those
set forth in paragraph (b) of Section 7. It is the intention of EMPLOYER and
EMPLOYEE that the provisions of paragraph (b) of Section 7 shall be enforced
to the fullest extent permissible under the laws and public policies of each
state and jurisdiction in which such enforcement is sought, and the
unenforceability (or the modification to conform to such laws or public
policies) of any provisions of such paragraph shall not render unenforceable,
or impair, the remainder of the provisions of such paragraph. Accordingly, if
any provisions of such paragraph shall be determined to be invalid or
unenforceable, either in whole or in part, under the laws or public policies
of any state or jurisdiction in which enforcement is sought, as to such state
or jurisdiction the provisions of such paragraph shall be deemed amended to
delete or modify, as necessary, the offending provision
7
and to alter the balance hereof in order to render it valid and enforceable
in such state or jurisdiction.
(e) Notwithstanding any termination of EMPLOYEE'S employment, all
of the covenants and agreements of EMPLOYEE under this Section 7 shall
continue in full force and effect in accordance with the terms hereof, even
if such termination is for cause pursuant to Section 6.
8. NOTICES. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing and shall be deemed to have
been given at the time delivered, if personally delivered, or twenty-four
hours after deposit thereof for mailing at any general or branch United
States Post Office enclosed in a registered or certified postpaid envelope
and addressed to either EMPLOYER or EMPLOYEE as the case may be, at 00000
Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000. The parties hereto may
designate a different place at which notice shall be given provided, however,
that any such notice of change of address shall be effective only upon
receipt.
9. ENTIRE UNDERSTANDING. This Agreement sets forth the entire
understanding of the parities hereto with respect to the subject matter
hereof and no other representations, warranties or agreements whatsoever have
been made to EMPLOYEE, except any such incentive arrangements as may be set
forth in a written Bonus Plan applicable to EMPLOYEE. This agreement shall
not be modified, amended, or terminated except by another instrument in
writing executed by the parties hereto.
8
10. GOVERNING LAW. This Agreement and all rights, obligations and
liabilities arising hereunder shall be construed and enforced in accordance
with the laws of the State of California.
11. ATTORNEY'S FEES. In the event it becomes necessary to commence any
proceeding or action to enforce the provisions of this Agreement, the Court
before whom the same shall be tried may award to the prevailing party all
costs and expenses thereof, including but not limited to reasonable attorney
fees, the usual, customary and lawfully recoverable Court costs, and all
other expenses in connection therewith.
The parities hereto have executed this Agreement on the day and year
first above written.
"EMPLOYEE"
/s/ Xxxxxx Xxxxx
------------------------------------
XXXXXX XXXXX
"EMPLOYER"
PACIFIC CREST CAPITAL, INC.
By: /s/ Xxxx Xxxxxx
---------------------------------
XXXX XXXXXX
Title: Chairman of the Board
9
