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Exhibit 10.19 Employment Agreements dated November 27, 1995 between Mr.
Xxxx XxXxxxx and the Bank of San Francisco.
Xxxx X. XxXxxxx
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of
November 27, 1995 by and between Bank of San Francisco (the "Bank"), (the
"Employer"), and Xxxx X. XxXxxxx ("Executive").
R E C I T A L S:
A. The Employer desires to employ Executive to serve as President,
Chief Operating Officer, Chief Credit Officer and Director of the Bank, and the
Board of Directors of the Bank have approved the Employer's employment of
Executive.
B. Executive hereby accepts such employment on the terms and
conditions set forth in this Agreement.
A G R E E M E N T:
i. Agreement to Employ. Subject to the terms and
conditions contained herein, the Employer hereby employs Executive and Executive
hereby accepts employment by the Employer.
ii. Term of Employment. The term shall be for three (3)
years commencing on November 27, 1995, and ending, unless terminated earlier,
November 27, 1998 (the "Expiration Date").
iii. Position and Duties/Authority of Executive. During the
term of this Agreement, Executive shall hold the positions of President, Chief
Operating Officer, and Chief Credit Officer of the Bank. Executive shall report
to the Chief Executive Officer and shall perform such other or additional duties
and responsibilities, consistent with the foregoing positions as may be assigned
to Executive from time to time by the Chief Executive Officer or Board of
Directors of the Employer.
iv. Place of Employment. Executive's principal place of
employment shall be 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx. While
discharging his duties and responsibilities hereunder, Executive may be required
to travel from time to time and, as a result, be temporarily absent from his
principal place of employment.
v. Devotion of Time to Business. Except as provided below,
Executive shall devote his best efforts and ability, and attention to the
business and affairs of the Employer and to performing the duties and
responsibilities set forth herein on behalf of the Employer. Notwithstanding any
language herein to the contrary, Executive shall be entitled to devote time to
charitable, political and civic activities and speaking engagements, and
Executive shall be permitted to serve on the boards of directors of other
companies which do not directly compete with the Employer provided such
activities do not have a material, adverse effect on Executive's performance
hereunder.
vi. Confidential Information/Trade Secrets.
(1) In performing his duties under this Agreement, Executive
will have access to and become acquainted with information concerning the
Employer's operations, including financial, personnel, marketing, and other
information and customer lists that are owned by the Employer and regularly used
in the Employer's business, and such information is confidential and constitutes
trade secrets of the Employer.
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(2) Executive will not misuse, misappropriate, or disclose any
such trade secrets, directly or indirectly, to any other person, or use them in
any way, except as required in the course of his employment hereunder.
(3) The unauthorized use or disclosure of any of the
Employer's confidential information/trade secrets (including without limitation
information concerning current or future proposed work, services, or products,
the fact that any such work, services, or products are planned, under
consideration, or in use, and any descriptions thereof) constitute unfair
competition.
(4) Any violation by Executive of any of the provisions of
this paragraph would result in irreparable injury to the Employer, and the
Employer shall be entitled to injunctive relief to prevent or terminate such
violation.
(5) This paragraph shall not apply to any information that
becomes generally known to or available for use by the public other than as a
result of Executive's acts.
(6) The covenants set forth in this paragraph shall survive
termination of this Agreement for a period of one year; provided, however, that
with respect to the Employer's customer lists and relationships, such period
shall be two years.
vii. Compensation to Executive.
(1) Salary and Benefits. Subject to the terms and conditions
contained herein, throughout the term of this Agreement, Executive shall be
entitled to receive the following salary and benefits from the Employer:
1) Annual Base Salary. The Employer shall pay to Executive
as compensation for his services an Annual Base Salary of One Hundred
and Seventy Thousand Dollars ($170,000) in such intervals as other
salaried executives of the Employer are presently paid (but in no case
less frequently than monthly). The Annual Base Salary shall be paid
subject to all federal, state and local rules for payment, deduction
and withholding of taxes.
2) Annual Performance Bonus. For each calendar year,
Executive and the Chief Executive Officer of the Bank shall establish
reasonable goals for such year which, if met, will result in a bonus
payable to Executive from 0% to 50% of his base salary in cash. Such
goals shall be set no later than January 31st of the current year and
be based upon performance criteria which will include asset quality,
resolution of problem assets, development of a credit culture,
adherence to regulatory orders, quality of operational procedures and
controls, quality of staff, and financial performance of the Bank.
Evaluation and payment of bonus will occur no later than March 15th of
the current year for the previous years goals. Payment of the Annual
Performance Bonus is subject to regulatory approval.
(2) Retirement Plan. The Employer shall provide Executive with
retirement benefits, including any Section 401(k) Plan, under which the Employer
provides retirement or similar benefits to the other Bank employees. The
employees of the Bank currently participate in The San Francisco Company
("Company") 401(k) Plan. Executive's participation in the Section 401(k) Plan
shall begin as of July 1, 1996.
(3) Benefits. The Employer shall, during the term of this
Agreement, make available to Executive the following:
1) insurance coverage and benefits according to
existing or then current health plans;
2) group term life insurance, accidental death and
dismemberment insurance, and long-term group disability insurance, all in
accordance with the Employer's existing or then current group plans; and
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3) vacation of four weeks per year.
(4) Expense Account. The Employer will require Executive
to incur travel, lodging, meal, entertainment, and similar expenses. The
Employer shall advance or promptly reimburse Executive for all authorized
expenses reasonably incurred by Executive in the performance of his duties for
which Executive furnishes the Employer with adequate records and other
documentary evidence as required by applicable federal and state laws and
regulations.
(5) Stock Options.
1) The Board of Directors of the Company has adopted
an Executive Stock Option Plan (the "Stock Plan") under which Executive
shall be eligible to receive options to purchase shares of the
Company's Class A Common Stock, and the Company has reserved shares for
issuance under the Stock Plan and shall grant options under the Stock
Plan to Executive to purchase one percent (1%) of the shares of the
Company's Class A Common Stock. The options shall be granted effective
on December 1, 1995, and the option price shall be $ 0.34 per share.
Thirty-three and one-third (33-1/3) of such options shall vest on each
anniversary of this Agreement until all such options are vested.
2) Additional options (the "anti-dilution options")
shall be granted to Executive from time to time at the then current
fair market value and in such amounts as to assure that Executive's
options and shares previously issued to Executive upon the exercise of
options will comprise not less than one percent (1%) of the fully
diluted number of shares of all classes of the Company's Common Stock
(i.e., the sum of the number of shares of all classes of Common Stock
issued and outstanding, plus the number of shares of all classes of
Common Stock subject to options, warrants, conversion rights and all
other outstanding rights to purchase any class of shares of Common
Stock). Such additional options shall be granted at the fair market
value at the date of grant. The antidilution options shall vest on the
schedule set forth above, except that notwithstanding such vesting
schedule options granted on account of options, warrants, conversion
rights or other rights to purchase Common Stock shall not be
exercisable unless and until Common Stock is issued upon the exercise
of such rights. The Company shall have no obligation to grant Executive
any antidilution options with respect to any dilutive events occurring
after the completion of the next public offering by the Company of its
Common Stock.
(6) Other Benefits. The Employer shall provide Executive
with such other pension, health and welfare benefits as it may from time to time
offer to other senior executives in the ordinary course of its business, or as
may be reasonably required or necessary for him to perform his duties.
g. Temporary Living. The Employer shall provide
Executive a temporary living allowance in the amount of One Thousand Five
Hundred Dollars ($1,500) per month for a period of six (6) months.
viii. Termination.
(1) Termination by the Employer for Cause. The Employer may
terminate Executive's employment at any time for "cause." For the purpose of the
Employer's termination of this Agreement, the term "cause" shall include any of
the following:
1) Adjudication of Executive's guilt in
connection with the commission of a felony or a misdemeanor involving moral
turpitude (excluding traffic violations);
2) Good faith finding by the Employer's Chief
Executive Officer of Executive's theft, conversion, misappropriation, or
embezzlement of any assets of the Employer;
3) Executive's (A) habitual neglect of his
duties, (B) failure to obey the lawful direction of the Chief Executive Officer
of the Employer that do not contravene regulations or regulatory policies,
guidelines, agreements or orders, or (C) conduct that has a direct, substantial
and adverse effect
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on the Employer's reputation, in each case, after written notice and
adequate opportunity to cure any such asserted neglect, failure or
conduct; or
4) Good faith finding by the Employer's Chief
Executive Officer or Board of Directors that Executive's performance of
his duties resulted in a material deterioration in the condition of the
Bank, provided that such deterioration is not the result of conditions
either existing on the date of Executive's employment or external to
the Bank and beyond Executive's control.
(2) Termination without Cause.
i) The Employer may terminate Executive's
employment without "cause" at any time subject only to the provisions
of paragraph 9.d.
ii) The Executive may terminate employment without
"cause" at any time with a minimum of thirty (30) days notice.
(3) Termination for Death. Executive's employment shall
terminate upon Executive's death.
d. Termination for Disability. The Employer may terminate
Executive's employment upon the disability of Executive. As used herein, the
term "disability" shall mean sickness or physical or mental disability that
renders Executive unable to perform a substantial portion of his duties under
this Agreement for an aggregate period of more than ninety (90) days in any
twelve (12) month period.
e. Notice of Termination. If the Employer desires to terminate
Executive's employment under this Agreement, whether or not for cause, the
Employer shall deliver a notice of termination in writing to Executive (the
"Notice of Termination"). The Notice of Termination shall specify whether the
termination is (A) for cause (in which case the conduct of Executive or the
Employer giving rise to the termination shall be specified), (B) for death, (C)
for disability, or (D) without cause. The Notice of Termination shall specify an
effective date of termination (the "Termination Date") on or after the date
notice is given.
ix. Effect of Termination. Upon the termination of this
Agreement by either party, the parties shall comply with the following
obligations and duties:
(1) Termination for Cause. If the Employer terminates
Executive's employment for cause:
1) Annual Base Salary. The Employer shall on
the Termination Date pay Executive Executive's Annual Base Salary through the
Termination Date.
2) Annual Performance Bonus. The Executive
shall not be entitled to receive any performance bonus.
iii) Reimbursable Expenses. The Employer shall, on
the Termination Date, pay Executive all reimbursable expenses for which expense
reports have been provided to the Employer in accordance with the Employer's
policy.
iv) Vesting of Stock Options. All of the stock
options granted to Executive which have vested as of the Termination Date shall
be retained by Executive and shall be exercisable in accordance with the Stock
Plan, and any unvested options shall be forfeited.
(2) Termination for Death. If Executive's employment is
terminated as a result of Executive's death:
1) Annual Base Salary. The Employer's
obligation to pay Executive's salary shall terminate upon his death.
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2) Reimbursable Expenses. The Employer shall,
within thirty (30) days following the date of Executive's death, pay
Executive's estate all reimbursable expenses for which expense reports
have been provided to the Employer in accordance with the Employer's
policy.
3) Annual Performance Bonus. The Employer shall,
within thirty (30) days following the date of death, pay Executive's
estate Executive's Annual Performance Bonus at a rate of fifty percent
(50%) of Bonus, if any, that Executive would have earned for the
current year, prorated by the number of full months served during the
current year.
4) Vesting of Stock Options. All of the stock
options granted to Executive which have vested as of the Termination
Date shall be retained by Executive's estate in accordance with
paragraph 7.e., and unvested options shall be forfeited.
(3) Termination for Disability.
1) Annual Base Salary. The Employer shall pay
Executive Executive's Annual Base Salary through Termination Date.
2) Reimbursable Expenses. The Employer shall,
within thirty (30) days following the Termination Date, pay Executive
all reimbursable expenses for which expense reports have been
provided to the Employer in accordance with the Employer's policy.
3) Annual Performance Bonus. The Employer shall,
within thirty (30) days following the Termination Date, pay Executive's
Annual Performance Bonus, if any, that Executive would have earned for
the current year, prorated by the number of full months served during
the current year.
4) Vesting of Stock Options. All of the stock
options granted to Executive which have vested as of the Termination
Date shall be retained by Executive in accordance with paragraph 7.e.,
and unvested options shall be forfeited.
(4) Termination without Cause. If the Employer
terminated Executive's employment without cause:
1) Annual Base Salary. The Employer shall, on the
Termination Date, pay Executive his Annual Base Salary through the
Termination Date. In addition, the Employer shall, on the Termination
Date, pay Executive an additional one (1) year of Annual Base Salary,
or the amount remaining on this three (3) year Agreement, whichever is
less, provided, however, that (A) such payment shall be subject to
applicable statutory or regulatory restrictions, and (B) no such
payment shall be made for so long as the Federal Reserve or the Federal
Deposit Insurance Corporation determines that the Employer is in an
unsafe or unsound financial condition.
ii) Annual Performance Bonus. The Employer shall, on the Termination
Date, pay Executive's Annual Performance Bonus, if any, that Executive
would have earned for the current year, provided, however, that (A)
such payment shall be subject to applicable statutory or regulatory
restrictions, and (B) no such payment shall be made for so long as the
Federal Reserve or the Federal Deposit Insurance Corporation determines
that the Employer is in an unsafe or unsound financial condition. No
Annual Performance Bonus will be paid for the additional severance
identified in d.i., above.
i2) Reimbursable Expenses. The Employer shall,
on the Termination Date, pay Executive all reimbursable expenses for which
expense reports have been provided to the Employer in accordance with the
Employer's policy.
iv) Vesting of Stock Options. All of the stock
options granted to Executive which have vested as of the Termination
Date shall be retained by Executive and shall be exercisable in
accordance with the Stock Plan, and any unvested options shall be forfeited.
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(5) Voluntary Termination by Executive. If Executive
terminates this Agreement voluntarily:
1) Annual Base Salary. The Employer shall,
within three (3) days following the Termination Date, pay Executive
Executive's Annual Base Salary through the Termination Date.
ii) Annual Performance Bonus. The Executive
shall not be entitled to receive any performance bonus.
iii) Notice. The Executive will provide a
minimum of thirty (30) days notice.
iv) Reimbursable Expenses. The Employer shall,
within thirty (30) days following the Termination Date, pay Executive
all reimbursable expenses for which expense reports have been provided
to the Employer in accordance with the Employer's policy.
v) Vesting of Stock Options. All of the stock
options granted to Executive which have vested as of the Termination
Date shall be retained by Executive and shall be exercisable in
accordance with the Stock Plan, and any unvested options shall be
forfeited.
(6) Expiration of the Term of the Agreement. If
Executive's employment terminates upon the Expiration Date:
1) Annual Base Salary. The Employer shall on
the Expiration Date pay Executive Executive's Annual Base Salary
through the Expiration Date.
2) Reimbursable Expenses. The Employer shall,
within thirty (30) days following the Expiration Date, pay Executive
all reimbursable expenses for which expense reports have been provided
in accordance with the Employer's policy.
3) Annual Performance Bonus. The Employer
shall, no later than November 27, 1998, pay Executive's Annual
Performance Bonus, if any, for the year which the Chief Executive
Officer determines has been earned through the Expiration Date.
4) Vesting of Stock Options. All of the stock
options granted to Executive which have vested as of the Expiration
Date shall be retained by Executive and shall be exercisable in
accordance with paragraph 7.e., and any unvested options shall be
forfeited.
5) Other. Executive shall be entitled to no
other compensation or benefits upon expiration of this Agreement.
g. Other. Amounts set forth in paragraph 9.a. - f.
above, shall be the total sums that will be due and owing to the Executive in
the circumstances set forth in each of these subparagraphs. The Bank will have
no obligation to make any other payment or provide any other compensation except
as set forth therein.
x. Indemnification of Executive.
(1) Pre-Execution Actions and Events. Notwithstanding any
other provision to the contrary contained in this Agreement, the Employer shall
indemnify, defend at its expense, and hold Executive entirely harmless against
and from any claim, demand, cause of action, judgment, loss, liability, damage,
cost or expense whatsoever, including without limitation reasonable attorneys'
fees, which Executive may suffer, sustain, incur or otherwise become subject to
either directly or indirectly as a result of any claim, controversy, dispute,
legal action or proceeding whatsoever arising from actions taken by the Employer
or events relating to the business of the Bank or the Company occurring prior to
the execution of this Agreement.
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(2) Post-Execution Actions and Events. Notwithstanding any
other provision to the contrary contained in this Agreement, the Employer shall
indemnify, defend at its expense, and hold Executive entirely harmless against
and from any claim, demand, cause of action, judgment, loss, liability, damage,
cost or expense whatsoever, including without limitation reasonable attorneys'
fees, which Executive may suffer, sustain, incur or otherwise become subject to
either directly or indirectly as a result of any claim, controversy, dispute,
legal action or proceeding whatsoever arising from actions taken by the Employer
or events relating to the business of the Bank or the Company occurring
subsequent to the execution of this Agreement, other than any such claim,
demand, cause of action, judgment, loss, liability, damage, cost or expense
whatsoever which is due to Executive's misconduct or gross negligence.
Notwithstanding the foregoing, in any administrative proceeding or civil action
initiated by any federal banking agency, the Bank or the Company may only
reimburse, indemnify or hold harmless Executive if the Bank is in compliance
with any applicable statute, rule, regulation or policy of the Federal Deposit
Insurance Corporation, Federal Reserve Board, or the California State Banking
Department regarding permissible indemnification payments.
(3) Payment of expenses. In the event the Employer is
obligated hereunder to defend and indemnify Executive and in the event Executive
is also required to retain independent legal counsel, other experts or
professionals or should incur any reasonable litigation cost himself in
connection with Paragraph 10.b. above, the Employer shall promptly pay such
expenses as incurred.
(4) Survival of Indemnification. The obligations of the
Employer under this paragraph 10 to indemnify Executive shall survive the
expiration or termination of this Agreement.
xi. General provisions.
(1) Binding on Successors. Subject to any restrictions stated
in any other provision of this Agreement, this Agreement shall be binding on and
shall inure to the benefit of the parties and their respective successors and
assigns.
(2) Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior oral or written understandings and
agreements.
(3) Amendments; Waivers. No provision of this Agreement may
be changed, waived, modified, discharged or terminated, except by a written
instrument executed by the parties hereto.
(4) Notices. Any notice to be given under this Agreement shall
be in writing and shall be deemed effective only when hand-delivered or when
delivered by overnight courier, or three (3) days after the date postmarked if
sent by certified or registered mail, postage prepaid, return receipt requested,
addressed as follows:
If to the Employer:
Bank of San Francisco
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
If to Executive:
Xxxx X. XxXxxxx
000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
(5) Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of California.
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(6) Title and Headings. Title and headings to paragraphs,
subparagraphs and sub-subparagraphs of this Agreement are for the purpose of
reference only and shall not affect the interpretation of this Agreement.
(7) Regulatory Approval. This Agreement is subject to and
shall not become effective until any required approval or non-disapproval of the
employment of Executive by the Federal Deposit Insurance Corporation and the
California State Banking Department has been obtained.
(8) Insolvency. The terms and conditions of the Agreement
shall in no way be binding on the FDIC, or any successor agency, in the event
the Bank is determined to be insolvent and becomes subject to a receiver,
conservator or liquidator.
(9) Resolution of disputes. Any and all disputes pertaining or
relating to entering into this Agreement, the performance of this Agreement, the
interpretation of this Agreement, or the termination of the employment
relationship, including any claims for discrimination or harassment on any
basis, shall be resolved exclusively by binding arbitration before the Judicial
Arbitration & Mediation Service ("JAMS") in San Francisco. Each party shall bear
its own costs and expenses.
IN WITNESS WHEREOF, the undersigned have hereunto caused this
Agreement to be executed as of the day and year first above written.
BANK OF SAN FRANCISCO
By:
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Xxxxx X. Xxxxxxxx
Chairman and
Chief Executive Officer
EXECUTIVE:
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Xxxx X. XxXxxxx
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