EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into on this 16th day of November 1998 by
and between EAST-WEST BANK, (hereinafter referred to as "Bank"), and Xxxxxx Xxxx
hereinafter referred to as "Executive").
W I T N E S S E T H
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WHEREAS, in order to insure the successful management of its business, Bank
desires to avail itself of the experience, skills, abilities and knowledge of
Executive; and
WHEREAS, both the Bank and the Executive desire to embody the terms and
conditions of Executive's employment in this written agreement which supersedes
all prior agreements, whether written or oral; and
WHEREAS, the employment, the duration thereof, the compensation to be paid to
Executive, and other terms and conditions of employment provided in this
Agreement were duly fixed, stated, approved and authorized for and on behalf of
the Bank by action of its Board of Directors at a meeting held on October 27,
1998, at which meeting a quorum was present and voted, exclusive of Executive.
NOW, THEREFORE, in consideration of the mutual covenants, terms and
conditions, hereinafter set forth, the sufficiency of which is acknowledged, the
parties hereto covenant and agree as follows:
1. TERM
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Subject to the concurrence of all the appropriate state and/or federal
regulatory agencies, Bank agrees to employ Executive as Executive Vice President
and Chief Credit Officer, and Executive hereby accepts employment with Bank
commencing on November 16, 1998 ("Commencement Date") and shall continue for a
period of one(1) year(s) from and after the Commencement Date, unless sooner
terminated or extended pursuant to the provisions of Sections 6 and 7 hereof.
This period of employment shall be referred to herein as "the Term". The Bank
and Executive will commence good faith discussions regarding the renewal or
extension of this Agreement three (3) months prior to expiration of the Term of
this Agreement.
2. DUTIES
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2.1 Generally. At the commencement of this Agreement Executive shall
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serve as Executive Vice President and Chief Credit Officer subject to the powers
by law vested in the Board of Directors of Bank and in Bank's shareholders.
During the term of this Employment Agreement, Executive shall perform his duties
faithfully, diligently and to the best of his ability, consistent
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with the highest and best standards of the banking industry and in compliance
with all applicable laws and the Bank's Articles of Association and Bylaws. The
Executive may be assigned other titles and job responsibilities at the sole
discretion of the Bank.
2.2 Performance. Executive shall devote substantially his full energies,
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interest, abilities and productive time to the business of the Bank. Executive
shall at all times loyally and conscientiously perform all of these duties and
obligations hereunder and shall at all times strictly adhere to and obey, and
instruct and require all those working under and with him strictly to adhere and
obey, all Bank policies and procedures whether written or oral and all
applicable federal and state laws, statutes, rules and regulations to the end
that the Bank shall at all times be in full compliance with such laws, statutes,
rules and regulations.
3. COMPENSATION
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3.1 Operating Period. During the Term, Executive shall receive an annual
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base salary in the amount of One Hundred Fifty Thousand Dollars ($150,000.00)
payable in accordance with the normal payroll practices of the Bank. Annual
salary increases shall be according to Bank policy which are based on merit and
the Bank's financial performance for the previous year. Annual increases are in
the sole discretion of the Bank.
3.2 Bonus. In addition to the base salary set forth in Section 3.1
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hereof, during the Term, Executive may participate in the Bank's Management
Incentive Program with the opportunity to earn an annual bonus, based upon
achievement. Bonus potential is established pursuant to the Management Incentive
Program currently at 30% of calendar year base salary earnings prorated for
service less than the full twelve (12) month cycle. The percentage may be
changed at the sole discretion of the Bank with or without notice. Executive
shall not receive any bonus if employment is terminated prior to Executive
completing any full calendar year; there shall be no proration of bonus
earnings. The Bank, in its sole discretion, may award a pro rata bonus at time
of termination. Executive is guaranteed 30% bonus payment for 1998 actual
earnings.
4. EXECUTIVE BENEFITS
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4.1 Group Medical and Life Insurance Benefits. During the Term the
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Bank shall provide for Executive, at Bank's expense, participation in medical,
dental, accident and health, income continuation and life insurance benefits to
the same extent that such benefits are available to other executives and
eligible employees of the Bank. Dependent coverage may be subject to Executive
contributions. Nothing herein shall imply that the Bank may not reduce,
eliminate or modify existing benefits provisions applicable to all employees.
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4.2 Business Expense. Executive shall be entitled to reimbursement
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by the Bank in accordance with Bank policy and procedures, for any ordinary and
necessary business expenses incurred by Executive in the performance of
Executive's duties and in acting for the Bank during the Term, which type of
expenditures shall be determined by the Board of Directors, provided that
executive furnishes to the Bank adequate records and other documentary evidence
for such expenditures.
4.3 Automobile. Executive shall receive an automobile allowance in
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the sum of seven hundred dollars ($700.00) per month during the term of this
agreement.
4.4 401(k). Executive may participate in the Bank's 401(k) Plan
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subject to the terms and conditions thereof.
4.5 Vacation. Executive shall be entitled to a vacation, in
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accordance with standard Bank policies based on Corporate title and length of
service, each year during the Term, which vacation presently shall be four (4)
weeks and such vacation shall accrue at the rate of 13.33 hours for each month
of service under this Agreement. Any vacation time not used may be accrued for
use in future years, subject to a maximum accrual balance not to exceed 1 1/2
times annual accrual entitlement.
4.6 LTD (Long Term Disability). Executive will be required to join
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the Executive Long Term Disability Plan. The Executive Long Term Disability Plan
is a contributory plan. All premiums will automatically be paid out of payroll
deductions. Participation is mandatory.
4.7 Employee Benefits. Executive shall be entitled to participate
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in all Bank employee benefits available to all employees, subject to meeting
standard eligibility requirements.
4.8 Employee Stock Incentive Plan. Executive will be eligible to
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participate in the Employee Stock Incentive Plan. The Executive will be awarded
10,000 shares the first year at a xxxxx xxxxx of $10 per share, a minimum of
5,000 shares for the second and third year of employment at a xxxxx xxxxx of the
current fair market value of the stock. Thereafter, participation in the plan is
at the sole discretion of the Bank.
4.9 Benefit Enhancements. Executive will be eligible for all and
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any benefit enhancements that are made to the executive benefit package.
5. PROPERTY RIGHTS
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5.1 Trade Secrets. During the Term, Executive may have access to
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and become acquainted with various trade secrets which are owned by the Bank and
which may regularly be used in the
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operation of the Bank. Executive shall not disclose any such trade secrets,
directly or indirectly, or use them in any way, during the Term or at any time
thereafter, except as required pursuant to the provisions of this Agreement. All
such trade secrets, including, but not by way of limitation, any and all files,
records, documents, specifications, equipment, customer lists and similar items
relating to the business of the Bank, whether prepared by Executive or otherwise
coming into Executive's possession, shall remain the exclusive property of the
Bank and shall not be removed from the premises of the Bank under any
circumstances whatsoever without the prior written consent of the Board of
Directors.
5.2 Other Property. Under termination of this Agreement, Executive
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shall immediately deliver to the Board of Directors any and all property in
Executive's possession or under Executive's control belonging to the Bank, in
good condition, ordinary wear and tear and damage by any cause beyond
Executive's reasonable control excepted.
6. ADDITIONAL OBLIGATIONS
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6.1 Covenant Not to Compete. During the Term, Executive shall not,
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directly or indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer of director, or in any other
individual or representative capacity, engage or participate in any business or
activity that is in any way in competition in any manner whatsoever with the
business of the Bank.
7. TERMINATION.
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Pursuant to the provisions of all applicable federal and state statutes and
regulations including California Labor Code Section 2922, it is the specific
intent of the Bank and the Executive that the employment shall be "at will", and
any and all other provisions of this Agreement to the contrary notwithstanding,
Executive's employment hereunder may be terminated as follows:
7.1 Without Cause. In the sole and absolute discretion of the Board of
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Directors for any cause whatsoever; provided, however, that if such termination
occurs during the Term, and is for any cause other than those causes
particularly described in Sections 7.2 or 7.3 hereof, Executive shall receive a
severance payment in the amount equal to six (6) months of the then current
annual salary in full and complete satisfaction of any and all rights which
Executive might enjoy hereunder. In the event that termination takes place
without cause in the first six (6) months of employment, the severance payment
provided herein shall be prorated based upon the length of service.
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7.2 Disability. Upon Executive's medical or psychological disability
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whereby Executive is unable to continue his duties hereunder, the employment is
terminated. If such termination occurs as a result of such disability,
Executive shall receive severance payment in an amount equal to six (6) months
of the annual base salary in effect hereunder at the date of such termination in
full and complete satisfaction of any and all rights which Executive might enjoy
hereunder other than the right, if any, to exercise any of the stock options
vested prior to such termination.
7.3 With Cause. In the event of Executive's death or willful breach or
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habitual neglect of his duties and obligations under this Agreement, his
conviction of a felony or the closing of the Bank under order of regulatory
authorities or any other governmental regulator of competent jurisdiction, in
which event Executive or Executive's estate shall not receive any severance
payment.
7.4. Severance After The Term of Agreement. In the event that this Agreement
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expires and no subsequent Employment Agreement is entered into and Executive
remains in the employment of the Bank whereby employment remains "at will", if
the Bank terminates the Executive without cause, as defined above, the Executive
shall receive six (6) months of salary as severance pay in full and complete
satisfaction of any and all rights that Executive may have. If the Bank
terminates the Executive for cause, no severance pay shall be paid to Executive.
7.5. Severance Settlement. Severance payment shall be made in a lump sum,
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subject to required payroll withholding and IRS Form W-2 reporting.
7.6 Change of Control. If a Change of Control (as defined below) occurs
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during the term of this Agreement, and if Executive is terminated without cause
within twelve (12) months of such Change of Control, Executive shall receive a
severance payment equal to two times the annual base salary; this severance
payment shall be in lieu of the severance payment provided in Section 7.1 and
7.4 of this Agreement or under any severance payment to which Executive would
otherwise be entitled to under this Agreement or under any severance program of
general application of the Bank or any entity which might acquire control of
Bank. Change of Control means:
(I) any date upon which the directors of the Company who were last
nominated by the Board of Directors (the "Board") for election as directors
cease to constitute a majority of the directors of the Company;
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(II) the date of the first public announcement that any person or
entity, together with all Affiliates and Associates (as such capitalized terms
are defined in Rule 12b-2) promulgated under the Securities and Exchange Act of
1934, as amended (the "Exchange Act")) of such person or entity, shall have
become the Beneficial Owner (as defined in Rule 13d-3 promulgated under the
Exchange Act) of voting securities of the Company representing 51% or more of
the voting power of the Company (a "51% Stockholder"); provided, however, that
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the terms "person" and "entity," as used in this clause (B), shall not include
(1) the Company or nay of its subsidiaries, (2) any employee benefit plan of the
Company or any of its subsidiaries, (3) any entity holding voting securities of
the Company for or pursuant to the terms of any such plan or (4) any person or
entity who was a 51% Stockholder on the date of adoption of the Plan by the
Board; or (5) the formation of a holding in which the shareholders of the
holding company after its formation are substantially the same as for the
Company prior to the holding company formation.
7.7. General Release of Claims. As a material inducement to the Bank to
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enter into Sections 7.1, 7.2 and 7.4, Executive hereby irrevocably and
unconditionally releases, acquits, and forever discharges the Bank and each of
the Bank's owners, shareholders, predecessors, successors, assigns, agents,
directors, officers, employees, representatives, attorneys, divisions,
subsidiaries, affiliates (and agents, directors, officers, employees,
representatives and attorneys of such divisions, subsidiaries and affiliates),
and all persons acting by, through, under or in concert with any of them
(collectively "Releasees"), or any of them, from any and all complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages, costs,
losses, debts and expenses (including attorney's fees and costs actually
incurred), of any nature whatsoever, including the Age Discrimination in
Employment Act and the Older Workers Benefit Protection Act, known or unknown
("Claim" or "Claims"), which Executive now has, owns, or holds, or claims to
have, own or hold, or which Executive at any time heretofore had, owned, or
held, or claimed to have, own, or hold, or which Executive at any time
hereinafter may have, own, or hold, or claim to have, own, or hold, against each
or any of the Releasees.
7.8. Civil Code Section 1542. Executive expressly waives and
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relinquishes all rights and benefits afforded by Section 1542 of the Civil Code
of the State of California and does so understand and acknowledge the
significance and consequence of such specific waiver of Section 1542. Section
1542 of the Civil Code of the State of California states as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by
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him must have materially affected his settlement with the debtor."
7.9 Indemnification. The Bank agrees to indemnify Executive to the
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fullest extent possible pursuant to California law for any and all acts
performed during the course and scope of Executive's employment. At all times
during the employment, the Bank shall maintain directors and officers liability
insurance coverage for Executive.
8. ACKNOWLEDGMENT.
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Executive hereby acknowledges that this Agreement may be subject to and
contingent upon the prior approval of the regulatory authorities and only to the
extent that any such prior approval is required. If such approval is not
obtained, this contract is null and void and unenforceable.
9. MISCELLANEOUS.
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9.1 Notice. Any and all notices and other communications hereunder shall
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be in writing and shall be deemed to have been duly given when delivered
personally or forty-eight (48) hours after being mailed, certified or registered
mail, return receipt requested, postage prepaid, to the addresses set forth
below or to such addresses as may from time to time be designated in writing.
East-West Bank
Attention: Human Resources Director
000 Xxxxxxxxxx Xxxxx
Xxx Xxxxxx, XX. 00000
9.2 Time. Time is of the essence of this Agreement with respect to each
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and every provision of this Agreement in which time is a factor.
9.3 Entire Agreement. This Agreement sets forth the entire agreement
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between Executive and the Bank pertaining to the subject matter hereof, fully
supersedes any and all prior agreements or understandings between Executive and
any other persons on behalf of the Bank pertaining to the subject matter hereof
and no change in modification of or addition, amendment or supplement to this
Agreement shall be valid unless set forth is writing and signed and dated by
Executive and the Bank.
9.4 Further Assurances. Executive and the Bank, without the necessity of
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any further consideration, agree to execute and deliver such other documents and
take such other action as may be necessary to consummate more effectively the
purposes and subject matter of this Agreement.
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9.5 Applicable Law. The existence, validity, construction and
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operational effect of this Agreement, any and all of these covenants,
agreements, representations, warranties, terms and conditions and the rights and
obligations of Executive and the Bank hereunder shall be determined in
accordance with the regulations of the applicable regulatory authorities
provided, however, that any provision of this Agreement which may be prohibited
by law or otherwise held invalid shall be ineffective only to the extent of such
prohibition or invalidity and shall not invalidate or otherwise render
ineffective any or all of the remaining provisions of this Agreement.
9.6 Controversy. In the event of any controversy, claim, or dispute
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between Executive and the Bank arising out of or relating to this Agreement, the
prevailing party shall be entitled to recover as costs from the non-prevailing
party reasonable expenses, including, but not by way of limitation, attorneys'
fees and accountant's fees.
9.7 Arbitration. Any dispute regarding any aspect of this Agreement,
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including but not limited to its formation, performance or breach ("arbitrable
dispute"), shall be submitted to arbitration in Los Angeles County, California,
before a single experienced employment arbitrator licensed to practice law in
California and selected in accordance with the Employment Dispute Resolution
Rules of the American Arbitration Association, as the exclusive forum for
resolving such claims or dispute. The arbitrator shall not have authority to
modify or change the Agreement in any respect. The prevailing party in any such
arbitration shall be awarded its costs, expenses, and actual attorneys' fees
incurred in connection with the arbitration. Bank and Executive shall each be
responsible for payment of one-half the amount of the arbitrator's fee(s). The
arbitrator's decision and/or award will be fully enforceable and subject to an
entry of judgment by the Superior Court of the State of California for the
County of Los Angeles. Should any part to this Agreement hereafter institute
any legal action or administrative proceeding against the other with respect to
any Claim waived by this Agreement or pursue any arbitrable dispute by any
method other than arbitration, the responding party shall recover from the
initiating party all damages, costs, expenses, and attorneys' fees incurred as a
result of such action.
9.8 Headings and Gender. The section headings used in this Agreement are
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intended solely for the convenience of reference and shall not in any way or
manner amplify, limit, modify or otherwise be used in the interpretation of any
of the provisions of this Agreement and the masculine, feminine or neuter gender
and the singular or plural number shall be deemed to include the others whenever
the context so indicates or requires.
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9.9 Successors. The covenants, agreements, representations, warranties,
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terms and conditions contained in this Agreement shall be binding upon and
insure to the benefit of the successors and assigns of Executive and the Bank,
provided however, that Executive may not assign any or all of his rights or
duties hereunder except upon the prior written consent of the Board of Directors
in its sole and absolute discretion.
DATED: November 16, 1999
EAST-WEST BANK
By:_______________________________
XXXXXX XXXX, FVP AND HUMAN RESOURCES
DIRECTOR
_______________________________
EXECUTIVE
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