EMPLOYMENT AGREEMENT
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This
Agreement is made and entered into on June 15, 2010, by and among Bridge Capital
Holdings (“BCH”), Bridge Bank, National Association (“Bank”) and Xxxxxx X. Sa
(“Executive”) for the purposes set forth hereinafter (“Agreement”).
RECITALS
WHEREAS,
BCH is a California corporation and bank holding company registered under the
Bank Holding Company Act of 1956, as amended, subject to the supervision and
regulation of the Board of Governors of the Federal Reserve System
(“BGFRS”);
WHEREAS, BCH is the parent holding
company for the Bank, which is a national banking association and wholly-owned
subsidiary of BCH, subject to the supervision and regulation of the Office of
the Comptroller of the Currency (“OCC”);
WHEREAS,
Executive served as the Executive Vice President, Chief Administrative Officer
and Chief Financial Officer of BCH and the Bank pursuant to an employment
agreement dated February 15, 2007, by and among BCH, the Bank and the Executive
(the ”Prior Agreement”); and
WHEREAS,
it is the intention of the parties to enter into an employment agreement for the
purposes of assuring the continued services of the Executive as the Executive
Vice President and Chief Risk Officer of the Bank and as the Executive Vice
President, Chief Financial Officer and Chief Strategic Officer of
BCH.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, BCH, the Bank and the Executive agree as follows:
AGREEMENT
1.
Term of
Employment;
Termination of
Prior Agreement and Waiver of Rights and Benefits and Release of Obligations
Thereunder. Pursuant to this Agreement, the Bank and BCH employ the
Executive and the Executive hereby accepts employment with the Bank and BCH,
upon the terms and conditions hereinafter set forth. The term of this
Agreement shall be a period of three (3) years from the date hereof, subject to
the termination provisions of paragraph 16. Upon the occurrence of the
third annual anniversary of the date of this Agreement, and on each anniversary
date thereafter, the term of this Agreement shall be deemed automatically
extended for an additional one (1) year term, subject to the termination
provisions of paragraph 16.
In
consideration of the Executive’s base salary and such other benefits provided
pursuant to this Agreement, which the Executive, BCH and the Bank acknowledge
and agree represents an increase in compensation benefits over the compensation
benefits provided under the Prior Agreement and is adequate consideration for
the termination of the Prior Agreement, BCH, the Bank and the Executive agree
that the Prior Agreement is hereby terminated effective as of the date of this
Agreement and that this Agreement is intended by the parties hereto to supersede
in full and constitute a complete replacement for the Prior Agreement and any
rights and benefits thereunder, but does not supersede or replace the rights and
benefits under (i) the Indemnification Agreement specified in paragraph 5 of
this Agreement, (ii) the Supplemental Executive Retirement Plan specified in
paragraph 13(d) of this Agreement, or (iii) any stock option or equity award
agreement between BCH and the Executive as specified in paragraph 12 of this
Agreement. In furtherance thereof and notwithstanding any provision of
this Agreement or the Prior Agreement to the contrary, the Executive, for
himself, and his heirs, beneficiaries, executors, administrators, trustees, and
any other legal or personal representatives, agents, successors or permitted
assignees or transferees, further expressly agrees to and does hereby waive and
relinquish any and all rights and benefits under the Prior Agreement and
specifically releases the Bank and BCH, and their respective directors,
officers, employees, agents, affiliates and successors, from any obligations,
duties and liabilities under the Prior Agreement including any matters covered
or contemplated by California Civil Code Section 1542 which reads 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 him must have materially
affected his settlement with the debtor.”
2.
Duties and Obligations of
Executive. The Executive shall serve as the Executive Vice
President and Chief Risk Officer of the Bank and as the Executive Vice
President, Chief Financial Officer and Chief Strategic Officer of BCH pursuant
to this Agreement and shall perform the customary duties of each such office in
the commercial banking industry and such additional duties not inconsistent
therewith, as may from time to time be reasonably requested of him by the
President and Chief Executive Officer and the Board of Directors of
BCH.
3.
Devotion to Bank's and BCH’s
Business.
(a) The
Executive shall devote his full business time, ability, and attention to the
business of the Bank and BCH during the term of this Agreement and shall not
during the term of this Agreement engage in any other business activities,
duties, or pursuits whatsoever, or directly or indirectly render any services of
a business, commercial, or professional nature to any other person or
organization, whether for compensation or otherwise, without the prior written
consent of the Board of Directors of BCH. However, the expenditure of
reasonable amounts of time for educational, charitable, or professional
activities shall not be deemed a breach of this Agreement if those activities do
not materially interfere with the services required of the Executive under this
Agreement. Nothing in this Agreement shall be interpreted to prohibit the
Executive from making passive personal investments. However, the Executive
shall not directly or indirectly acquire, hold, or retain any interest in any
business competing with or similar in nature to the business of the Bank and
BCH, except passive shareholder investments in other financial institutions and
their respective affiliates which do not exceed five percent (5%) of the
outstanding voting securities in the aggregate in any single financial
institution and its affiliates on a consolidated basis.
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(b) The
Executive hereby represents and agrees that the services to be performed under
the terms of this Agreement are of a special, unique, unusual, extraordinary,
and intellectual character that gives them a peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in an action at
law. The Executive therefore expressly agrees that the Bank and BCH, in
addition to any other rights or remedies that the Bank and BCH may possess,
shall be entitled to injunctive and other equitable relief to prevent or remedy
a breach of this Agreement by the Executive.
4.
Noncompetition,
Nonsolicitation and Nondisclosure by the Executive.
(a) The
Executive shall not, during the term of this Agreement, directly or indirectly,
either as an employee, employer, consultant, agent, principal, stockholder
(except as permitted in paragraph 3 (a) of this Agreement), officer, director,
or in any other individual or representative capacity, engage or participate in
any competitive banking or financial services business without the prior written
consent of the Board of Directors of the Bank or BCH.
(b) Following
termination of this Agreement and the Executive’s employment hereunder and for a
period of twelve (12) months thereafter, the Executive shall not use any
confidential, trade secret, or proprietary information of the Bank or BCH, or
their affiliates and subsidiaries, including information described in paragraph
6 below, to solicit, encourage or assist, directly, indirectly or in any manner
whatsoever, (i) any employees of the Bank, BCH or their affiliates and
subsidiaries (including any former employees who voluntarily terminated such
employment within a twelve (12) month period prior to the Executive’s
termination of employment with the Bank or BCH) to resign or to apply for or
accept employment with any other competitive banking or financial services
business within the counties in California in which the Bank has located its
headquarters or branch offices; or (ii) any customer, person or entity that has
a business relationship with the Bank or during the twelve (12) month period
prior to the Executive’s termination of employment with the Bank was engaged in
a business relationship with the Bank, to terminate such business relationship
and engage in a business relationship with any other competitive banking or
financial services business within the counties in California in which the Bank
has located its headquarters or branch offices.
(c) Following
termination of this Agreement and the Executive’s employment hereunder and for a
period of twelve (12) months thereafter, the Executive will not (i) disclose or
use in any manner whatsoever, confidential, trade secret and proprietary
information of the Bank, BCH, or their affiliates and subsidiaries, including
information described in paragraph 6 below except as expressly permitted
thereunder; and (ii) assist (by disclosing information described in paragraph 6
below except as expressly permitted thereunder) any person or entity, directly,
indirectly or in any manner whatsoever, that engages in or seeks to engage in
any competitive banking or financial services business.
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5.
Indemnification.
The Executive entered into an indemnification agreement with the Bank dated
November 18, 2004, pursuant to which, to the extent permitted by law and
applicable regulations of the BGFRS and OCC, the Bank, and as applicable BCH,
shall indemnify the Executive if he was or is a party or is threatened to be
made a party in any action brought by a third party against the Executive
(whether or not the Bank or BCH is joined as a party defendant) against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with said action if the Executive acted in
good faith and in a manner the Executive reasonably believed to be in the best
interests of the Bank and BCH (and with respect to a criminal proceeding if the
Executive had no reasonable cause to believe his conduct was unlawful), provided
that the alleged conduct of the Executive arose out of and was within the course
and scope of his employment as an officer or Executive of the Bank and
BCH.
6.
Disclosure of
Information. The Executive shall not, either before or after
termination of this Agreement, without the prior written consent of the Board of
Directors of BCH or except as required by law to comply with legal process
including, without limitation, by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process, disclose to anyone any financial information, trade or business
secrets, customer lists, computer software or other information concerning the
business or operations of the Bank or BCH and their respective affiliates and
subsidiaries; provided, that such information shall not include information (i)
in or which enters the public domain (other than by breach of the Executive’s
obligations hereunder); (ii) acquired by the Executive other than in connection
with his employment; or (iii) that is disclosed to the Executive by a third
party not obligated to BCH or the Bank to keep such information
confidential. The Executive further recognizes and acknowledges that any
financial information concerning any customers of the Bank or BCH and
their respective affiliates and subsidiaries, as it may exist from time to time,
is strictly confidential and is a valuable, special and unique asset of Bank's
and BCH’s business. The Executive shall not, either before or after
termination of this Agreement, without such consent or except as required by
law, disclose to anyone said financial information or any part thereof, for any
reason or purpose whatsoever. In the event the Executive is required by
law to disclose such information described in this paragraph 6, the Executive
will provide the Bank and BCH, and their counsel with immediate notice of such
request so that they may consider seeking a protective order. If, in the
absence of a protective order or the receipt of a waiver hereunder, the
Executive is nonetheless, in the written opinion of knowledgeable counsel,
compelled to disclose any of such information to any tribunal or any other party
or else stand liable for contempt or suffer other material censure or material
penalty, then the Executive may disclose (on an “as needed” basis only) such
information to such tribunal or other party without liability hereunder.
Notwithstanding the foregoing, the Executive may disclose such information
concerning the business or operations of the Bank or BCH and their respective
affiliates and subsidiaries as may be required by the BGFRS, OCC or other
regulatory agency having jurisdiction over the operations of the Bank or BCH in
connection with an examination of the Bank or BCH or other proceeding conducted
by such regulatory agency.
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7.
Written, Printed or
Electronic Material. All written, printed or electronic material,
notebooks and records including, without limitation, computer disks used by the
Executive in performing duties for the Bank or BCH, other than the Executive's
personal address lists, telephone lists, notes and diaries, are and shall remain
the sole property of the Bank and BCH. Upon termination of employment, the
Executive shall promptly return all such material (including all copies,
extracts and summaries thereof) to the Bank or BCH.
8.
Surety Bond and Severance
Benefit. The Executive agrees that he will furnish all information
and take any other steps necessary from time to time to enable the Bank to
obtain or maintain a fidelity bond conditional on the rendering of a true
account by the Executive of all monies, goods, or other property which may come
into the custody, charge, or possession of the Executive during the term of his
employment. The surety company issuing the bond and the amount of the bond
must be acceptable to the Bank. All premiums on the bond shall be paid by
the Bank. The Bank, BCH or their respective successors, shall have no
obligation to pay or provide severance benefits to the Executive in accordance
with paragraph 16 (d) or 16 (e), as applicable, of this Agreement in the event
that the Executive’s employment is terminated in connection with the Executive’s
non-insurability for surety bond coverage as determined in the sole discretion
of the Bank’s insurer at any time during the term of this
Agreement.
9.
Base Salary.
The Executive shall receive a base salary at the rate of two hundred twenty-five
thousand dollars ($225,000) for the first twelve (12) months of the term of this
Agreement, payable in installments of approximately nine thousand three hundred
seventy-five dollars ($9,375) on the fifteenth and last day of each month.
The Executive’s base salary during each subsequent year of the term of this
Agreement shall be subject to annual adjustment increase or decrease as
determined by the BCH’s Board of Directors, in its sole discretion, resulting
from the Board of Directors annual review of the consolidated results of
operations of BCH, Executive's total compensation and such other performance
criteria or factors as the Board of Directors deems appropriate. All
payments of base salary shall be subject to applicable adjustments for
withholding taxes, prorations for any partial employment period and such other
applicable payroll procedures of the Bank.
10.
Salary Continuation During
Disability. If the Executive for any reason (except as expressly
provided below) becomes temporarily or permanently disabled so that he is unable
to perform the duties under this Agreement, the Executive shall be paid the base
salary otherwise payable to Executive pursuant to paragraph 9 of this Agreement,
reduced by the amounts received by the Executive from state disability
insurance, or worker's compensation or other similar insurance benefits through
policies provided by the Bank or BCH, for a period of six (6) months from the
date of disability. For purposes of this paragraph 10, “disability” shall
be defined as provided in the Bank's or BCH’s disability insurance
program.
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11.
Incentive
Compensation. Subject to paragraph 17 of this Agreement, the
Executive shall be entitled to receive an annual incentive compensation payment
pursuant to the terms of the Management Incentive Compensation Plan in effect at
the date of this Agreement and as amended at any future date (the “Incentive
Plan”) or pursuant to any successor incentive plan or arrangement adopted by the
Bank or BCH for its officers. Except as set forth in the Incentive Plan or
in any successor incentive plan or arrangement, no incentive compensation
payments shall be prorated for a partial year and the Executive shall not be
entitled to receive incentive compensation payments for any year during the term
of this Agreement in which the Executive was not employed by the Bank or BCH for
the full fiscal year. Notwithstanding any provision of the Incentive Plan
or any successor incentive plan or arrangement, no right of continued employment
or any modification of the “at will” nature of the Executive’s employment with
BCH and/or the Bank shall be conferred upon the Executive thereunder or result
therefrom.
12.
Stock Options/Equity
Awards. The Executive acknowledges having received the grant of
stock options and/or equity awards pursuant to the BCH Amended and Restated 2001
Stock Option Plan and/or BCH 2006 Equity Incentive Plan (collectively, the “BCH
Plans”). Any future stock option grant or equity award to the Executive
pursuant to the BCH Plans shall be (i) determined by and in the sole discretion
of the Board of Directors of BCH and (ii) evidenced by a stock option or equity
award agreement in the form required by the BCH Plans. Notwithstanding any
provision of the BCH Plans or any such stock option or equity award agreement to
the contrary, no right of continued employment or any modification of the “at
will” nature of the Executive’s employment with BCH and/or the Bank shall be
conferred upon the Executive thereunder or result therefrom.
13.
Other Benefits.
The Executive shall be entitled to those benefits adopted by the Bank and BCH
for all officers of the Bank and BCH, subject to applicable qualification
requirements and regulatory approval requirements, if any. The Executive
shall be further entitled to the following additional benefits which shall
supplement or replace, to the extent duplicative of any part or all of the
general officer benefits, the benefits otherwise provided to the
Executive:
(a) Vacation. The
Executive shall be entitled to twenty-two (22) business days of annual vacation
leave at his then existing rate of base salary each year during the term of this
Agreement. The Executive may be absent from his employment for vacation as
long as such leave is reasonable and does not jeopardize his responsibilities
and duties specified in this Agreement. The length of vacation should not
exceed ten (10) business days without the approval of BCH’s Chief Executive
Officer. Vacation time will accrue in accordance with the Bank's personnel
policies.
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(b) Automobile Allowance and
Insurance. The Bank or BCH will pay to the Executive an automobile
allowance in the amount of seven hundred fifty dollars ($750) per month during
the term of this Agreement. The Bank or BCH shall reimburse the Executive
for gasoline or other fuel expenditures related to business use of the
automobile acquired or used by the Executive upon presentation and approval of
receipts, invoices or other appropriate evidence of such expense in accordance
with the policies of the Bank or BCH. The Executive shall acquire or
otherwise make available for his business and personal use an automobile
suitable to his position and maintain it in good condition and repair. The
Executive shall (i) obtain and maintain public liability insurance and property
damage insurance policies with insurer(s) acceptable to the Bank and BCH and
with such coverages in such amounts as may be acceptable to the Bank and BCH
from time to time, (ii) provide copies of such policies, endorsements or other
evidence of insurance acceptable to the Bank and BCH and (iii) such insurance
policies shall include notice to the Bank or BCH in the event the coverages
approved by the Bank and BCH are changed in any material respect or
cancelled. Notwithstanding the foregoing, the Bank or BCH may, in its
discretion, elect to (i) require that the policies name the Bank and BCH as
additional insureds, subject to the requirement that the Executive’s allowance
described above shall be increased in an amount equal to the additional premium
expense, if any, resulting from the Bank and BCH being named as additional
insureds or (ii) provide and pay for such insurance policies in lieu of the
Executive maintaining such policies.
(c) Insurance. The
Bank or BCH shall provide during the term of this Agreement at no cost to the
Executive group life, health (including medical, dental, vision and
hospitalization), accident and disability insurance coverage for the Executive
and his dependents through a policy or policies provided by the insurer(s)
selected by the Bank or BCH in its sole discretion.
(d) Supplemental
Compensation. The Bank and the Executive acknowledge that they have
entered into a Supplemental Executive Retirement Plan dated August 1, 2004,
which provides supplemental compensation benefits to the Executive payable upon
retirement or as otherwise set forth in such Plan. Notwithstanding any
provision of such Plan, no right of continued employment or any modification of
the “at will” nature of the Executive’s employment with BCH and/or the Bank
shall be conferred upon the Executive thereunder or result
therefrom.
(e) Financial
Planning. The Bank or BCH will reimburse the Executive, upon
presentation and approval of receipts, invoices or other appropriate evidence of
expense in accordance with the policies of the Bank or BCH, for the cost of (i)
consultation with financial planning and/or estate planning advisors, (ii)
premiums incurred by the Executive for personal life and health insurance
coverages supplemental to any group insurance coverages provided by the Bank or
BCH, for the Executive individually and, as applicable, the Executive’s
dependents, (iii) consultation with financial advisors related to personal
investments, (iv) investment advisory and management fees, and (v) tax planning
and accounting fees (the “Permissible Purposes”). The amount of
reimbursement allowance shall be limited to (i) up to seven thousand five
hundred dollars ($7,500) of the expense incurred by the Executive for the first
year that the Executive incurs expense for any of the Permissible Purposes and
(ii) up to an additional two thousand five hundred dollars ($2,500) of expense
for any of the Permissible Purposes in each subsequent year during the term of
this Agreement.
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Notwithstanding
the foregoing, any portion of such reimbursement allowance which is not fully
spent during a particular year shall carryover and be available for use by the
Executive for the Permissible Purposes in subsequent years during the term of
this Agreement; provided, however, that the maximum aggregate amount of
reimbursement allowance available for use in any particular year shall not
exceed seven thousand five hundred dollars ($7,500) and any amount in excess of
seven thousand five hundred dollars ($7,500) shall lapse and will not carryover
from one year to another year or otherwise be available or increase the
reimbursement allowance in any year during the term of this
Agreement.
(f)
Technology Devices and
Internet Service. The Bank or BCH will provide at its expense the
following technology devices to be used by the Executive for Bank business
purposes: (i) a smartphone and related internet service for business
applications and (ii) a computer and printer and related DSL internet service
maintained at the Executive’s primary residence. The technology devices
will (i) comply with the Bank’s and BCH’s information technology policies and
(ii) be owned by the Bank at all times during the term of this Agreement.
The Bank or BCH will reimburse the Executive for the expense of such smartphone
internet and DSL internet services, upon presentation and approval of receipts,
invoices or other appropriate evidence of such expense in accordance with the
policies of the Bank or BCH.
(g) Reimbursement of Legal
Expense. The Bank or BCH will reimburse the Executive, upon
presentation and approval of receipts, invoices or other appropriate evidence of
expense in accordance with the policies of the Bank or BCH, for up to three
thousand dollars ($3,000) of the expense incurred by the Executive for
consultation with an attorney in connection with the negotiation and execution
of this Agreement.
(h) Deferred Compensation
Plan. The Executive will be entitled to participate in any
non-qualified deferred compensation plan that the Board of Directors of the Bank
or BCH determines in its sole discretion to establish for the deferral of
compensation earned by the Executive pursuant to this Agreement.
(i)
Education. The
Bank or BCH will reimburse the Executive, upon presentation and approval of
receipts, invoices or other appropriate evidence of expense in accordance with
the policies of the Bank or BCH, for expenses incurred for education in
compliance with education policies established by the Bank or BCH; provided,
that the Executive may incur up to ten thousand dollars ($10,000) per year in
additional education expense beyond the limits set forth in such education
policies.
14.
Annual Physical
Examination. The Bank or BCH shall pay or reimburse the Executive
for up to five hundred dollars ($500) of the cost, if any, in excess of
applicable insurance coverage specified in paragraph 13(c) of this Agreement for
an annual physical examination conducted by a California licensed physician
selected by the Executive, the results of which examination shall not be
required to be disclosed to BCH or the Bank. Any such reimbursement shall
be made upon presentation and approval of receipts, invoices or other
appropriate evidence of such expense in accordance with the policies of the Bank
or BCH.
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15.
Business Expenses;
Memberships. The Executive shall be reimbursed for all ordinary and
necessary expenses incurred by the Executive in connection with his
employment. The Executive shall also be reimbursed for reasonable expenses
incurred in activities associated with promoting the business of the Bank and
BCH, including expenses for entertainment, travel, conventions, educational
programs, dues and expenses related to membership in a fitness club and The
Silicon Valley Capital Club, or similar items. All such expenses described
above will be subject to compliance with applicable policies of the Bank or BCH
and any memberships will be further subject to the prior approval of the Board
of Directors of the Bank or BCH in its sole discretion. All such
reimbursements shall be made upon presentation and approval of receipts,
invoices or other appropriate evidence of such expense in accordance with the
policies of the Bank or BCH.
16.
Termination of
Agreement.
(a) Automatic
Termination. This Agreement shall terminate automatically without
further act of the parties and immediately upon the occurrence of any one of the
following events, subject to either party's right, without any obligation
whatsoever, to waive an event reasonably susceptible of waiver, and the
obligation of the Bank or BCH to pay the amounts which would otherwise be
payable to the Executive under this Agreement through the end of the month in
which the event occurs, except that only in the event of termination based upon
subparagraphs (1), (4) or (10, to the extent of the Bank's or BCH’s breach)
below shall the Executive be entitled to receive severance benefits based upon
automatic termination pursuant to paragraph 16 (d) of this
Agreement:
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(1)
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The
occurrence of circumstances that make it impossible or impractical for the
Bank and BCH to conduct or continue its business.
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| (2) | The death of the Executive. | |
| (3) | The loss by the Executive of legal capacity. |
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(4)
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The
loss by the Bank and BCH of legal capacity to
contract.
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(5)
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The
willful, intentional and material breach or the habitual and continued
neglect by the Executive of his employment responsibilities and
duties.
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(6)
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The
continuous mental or physical incapacity of the Executive, subject to
disability rights under this
Agreement.
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(7)
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The
Executive's willful and intentional violation of any state or federal
banking or securities laws, or of the bylaws, rules, policies or
resolutions of the Bank or BCH, or the rules or regulations of the BGFRS,
Federal Deposit Insurance Corporation, OCC, or other regulatory agency or
governmental authority having jurisdiction over the Bank or BCH, which has
a material adverse effect upon the Bank or
BCH.
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(8)
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The
written determination by a state or federal regulatory agency or
governmental authority having jurisdiction over the Bank or BCH that the
Executive is not suitable to act in the capacity for which he is employed
by the Bank or BCH.
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(9)
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The
Executive’s conviction of (i) any felony or (ii) a crime involving moral
turpitude, or the Executive’s willful and intentional commission of a
fraudulent or dishonest act.
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(10)
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A
material breach of the terms or provisions of this Agreement, which breach remains
uncured after thirty (30) days from the date written notice of breach
including the basis for the good faith determination of breach is given by
the non-breaching party to another
party.
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(b) Termination by Bank or
BCH. The Bank or BCH may, at its election and in its sole
discretion, terminate the Executive’s employment and this Agreement at any time
and for any reason or for no reason, upon thirty (30) days prior written notice
to the Executive, without prejudice to any other remedy to which the Bank or BCH
may be entitled either at law, in equity or under this Agreement. Unless
otherwise agreed in writing between the Executive, the Bank and BCH, at the time
such notice is given the Executive shall immediately cease performing and
discharging the duties and responsibilities of his positions and remove himself
and his personal belongings from the Bank’s and BCH’s premises. All rights
and obligations accruing to the Executive under this Agreement shall cease at
such termination, except that such termination shall not prejudice the
Executive’s rights regarding employment benefits which shall have accrued prior
to such termination, including the right to receive the severance benefits
specified in paragraph 16 (d) below, and any other remedy which the Executive
may have at law, in equity or under this Agreement, which remedy accrued prior
to such termination.
(c) Termination by
Executive. This Agreement may be terminated by the Executive as
follows:
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(i) the Executive may
terminate his employment and this Agreement at any time and for any reason or no
reason, upon thirty (30) days prior written notice to the Bank or BCH.
Unless otherwise agreed in writing between the Executive, the Bank and BCH, at
the time such notice is given the Executive shall immediately cease performing
and discharging the duties and responsibilities of his positions and remove
himself and his personal belongings from the Bank’s and BCH’s premises.
All rights and obligations accruing to the Executive under this Agreement shall
cease at such termination, except that such termination shall not prejudice the
Executive's rights regarding employment benefits which shall have accrued prior
to such termination and any other remedy which the Executive may have at law, in
equity or under this Agreement, which remedy accrued prior to such termination;
or
(ii) the Executive may
terminate his employment and this Agreement at any time upon thirty (30) days
prior written notice to the Bank or BCH, based on the Executive’s good faith
determination of the existence of “good reason” therefore, subject to the right
of the Bank or BCH to cure the matter alleged as the basis for the Executive’s
determination that “good reason” exists as described herein. In order to
be considered a “good reason,” such notice must be given to the Bank or BCH
within ninety (90) days of the occurrence of the event causing the “good reason”
to exist. For purposes of this Agreement, “good reason” shall mean that
without the Executive’s written consent there occurs (A) any material adverse
change in the nature and scope of the Executive's position, authorities,
responsibilities, duties, or a change of twenty (20) miles or more in the
Executive's location of employment, or any material reduction in the Executive’s
base salary, incentive compensation (including any material adverse change to
the terms of the Incentive Plan after the date of this Agreement) or other
benefits under this Agreement, or (B) any event which reasonably constitutes a
demotion, significant diminution or constructive termination (by resignation or
otherwise) of the Executive's employment. The Executive shall specify in
any such notice to the Bank or BCH the specific basis for his good faith
determination that “good reason” exists and the Bank or BCH shall have thirty
(30) days within which to cure any matter alleged by the Executive as the basis
for such “good reason” determination by the Executive. If, in the
reasonable good faith determination of the Executive, the matters alleged by the
Executive as “good reason” are cured within such thirty (30) day period, then
the Executive shall not be entitled to terminate his employment and this
Agreement based thereon. Unless otherwise agreed in writing between the
Executive, the Bank and BCH, upon termination, the Executive shall immediately
cease performing and discharging the duties and responsibilities of his
positions and remove himself and his personal belongings from the Bank’s and
BCH’s premises.
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(d) Severance Benefits - Without
a Change in Control. Subject to paragraphs 17 and 30 of this
Agreement, in the event of automatic termination based upon paragraph 16 (a)
(1), (4) or (10, to the extent of the Bank's or BCH’s breach), or termination by
the Bank or BCH pursuant to paragraph 16 (b), or termination at the election of
the Executive for “good reason” pursuant to paragraph 16 (c) (ii), then in each
such case, the Executive shall receive severance benefits consisting of (i) a
cash payment in an amount equal to one (1) times the Executive's (A) annual base
salary during the year the termination occurs and (B) average bonus or incentive
compensation amount paid to the Executive in the three (3) year period
immediately preceding the termination, less applicable withholding
deductions (in addition to base salary, incentive compensation, or other
payments, if any, due the Executive), payable in lump sum within thirty (30)
days following such termination; (ii) acceleration of vesting of any stock
options or equity awards granted to the Executive pursuant to the BCH Plans; and
(iii) continuation of group insurance coverages specified in paragraph 13 (c) of
this Agreement for the Executive and his dependents pursuant to The Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”), or under applicable
California law pursuant to Assembly Xxxx No. 1401 (“Cal-COBRA”), with one
hundred percent (100%) of premiums for the insurance coverages payable by the
Bank or BCH monthly to the Executive for a period of twelve (12) months from the
date of termination. Notwithstanding the foregoing or anything contained
in this Agreement to the contrary, the obligation of the Bank or BCH to pay the
premium costs related to the COBRA or Cal-COBRA continuation of insurance
coverages shall terminate at the earlier of the expiration of twelve (12) months
from the date of termination or the date of commencement of comparable insurance
coverages for the Executive by another employer. After such expiration
date, the Executive shall have such rights to continue to participate under the
Bank’s or BCH’s group health benefits plan at the Executive’s expense as may be
available under COBRA or Cal COBRA. The Executive agrees to notify the
Bank or BCH as soon as practicable, but not less than ten (10) business days in
advance of the commencement of such comparable insurance coverages with another
employer and to repay to the Bank or BCH any amounts paid by the Bank or BCH to
or for the benefit of the Executive that overlap the coverages provided by the
other employer.
Notwithstanding
the foregoing, in the event of a “change in control” as defined in paragraph 16
(e) below, the Executive shall not be entitled to the severance benefits
pursuant to this paragraph 16 (d) and any rights of the Executive to severance
benefits shall be limited to such rights as are specified in paragraph 16 (e)
below.
The
Executive acknowledges and agrees that severance benefits pursuant to this
paragraph 16 (d) are in lieu of all damages, payments and liabilities on account
of the early termination of this Agreement and the sole and exclusive remedy for
the Executive for a termination specified in paragraph 16 (d).
-12-
(e) Severance Benefits - Change
in Control. The Executive shall be entitled to receive severance
benefits in the event of a “change in control” as defined herein if, in
connection with a change in control or within eighteen (18) months following
consummation of a change in control, (i) the Executive's employment is
terminated by BCH, the Bank or a successor entity to BCH or the Bank, or by an
organization that owns a controlling interest in either such successor entity;
or (ii) the Executive terminates employment based upon the occurrence, without
the Executive’s written consent, of (A) any material adverse change in the
nature and scope of the Executive's position, authorities, responsibilities,
duties, or a change of twenty (20) miles or more in the Executive's location of
employment, or any material reduction in the Executive’s base salary, incentive
compensation (including any material adverse change to the terms of the
Incentive Plan after the date of this Agreement) or other benefits under this
Agreement, or (B) any event which reasonably constitutes a demotion, significant
diminution or constructive termination (by resignation or otherwise) of the
Executive's employment. In order to receive severance benefits after
termination pursuant to paragraph 16(e) (ii), the Executive must give written
notice to BCH, the Bank or a successor entity to BCH or the Bank, or to an
organization that owns a controlling interest in either such successor entity,
of the Executive’s intention to terminate employment based upon and within
ninety (90) days of the occurrence of an event specified in paragraph 16(e)
(ii), and thereafter the recipient of such notice shall have a thirty (30) day
right to cure period from the date of receipt of such notice within which to
rescind or otherwise reverse the occurrence of an event specified in paragraph
16(e) (ii) before the Executive’s termination becomes effective. An event
constituting a “material adverse change in the nature and scope of Executive’s
position, authorities, responsibilities, duties” or “a demotion, significant
diminution or constructive termination” shall be deemed to have occurred if
following a “change in control,” the Executive is not the sole Executive Vice
President, Chief Financial Officer and Chief Strategic Officer of the successor
entity to BCH and the Executive Vice President and Chief Risk Officer of the
successor entity to the Bank, or any organization that owns a controlling
interest in either such successor entity.
Subject
to paragraphs 17 and 30 of this Agreement, the severance benefits payable
pursuant to this paragraph 16 (e) shall consist of (i) a cash payment in an
amount equal to one and one-half (1½) times the Executive's (A) annual base
salary during the year the termination or other event triggering a right to
severance benefits hereunder occurs and (B) average bonus or incentive
compensation amount paid to the Executive in the three (3) year period
immediately preceding the termination, less applicable withholding
deductions (in addition to base salary, incentive compensation, or other
payments, if any, due the Executive), payable in lump sum within thirty (30)
days following such termination; (ii) acceleration of vesting of any stock
options or equity awards granted to the Executive pursuant to the BCH Plans; and
(iii) continuation of group insurance coverages specified in paragraph 13 (c) of
this Agreement for the Executive and his dependents pursuant to The Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”), or under applicable
California law pursuant to Assembly Xxxx No. 1401 (“Cal-COBRA”), with one
hundred percent (100%) of premiums for the insurance coverages payable by the
Bank or BCH monthly to the Executive for a period of eighteen (18) months from
the date of termination. Notwithstanding the foregoing or anything
contained in this Agreement to the contrary, the obligation of the Bank or BCH
to pay the premium costs related to the COBRA or Cal-COBRA continuation of
insurance coverages shall terminate at the earlier of the expiration of eighteen
(18) months from the date of termination or the date of commencement of
comparable insurance coverages for the Executive by another employer.
After such expiration date, the Executive shall have such rights to continue to
participate under the Bank’s or BCH’s group health benefits plan at the
Executive’s expense as may be available under COBRA or Cal COBRA. The
Executive agrees to notify the Bank or BCH as soon as practicable, but not less
than ten (10) business days in advance of the commencement of such comparable
insurance coverages with another employer and to repay to the Bank or BCH any
amounts paid by the Bank or BCH to or for the benefit of the Executive that
overlap the coverages provided by the other employer. Notwithstanding the
foregoing or any other provision of this Agreement to the contrary, if any part
or all of the severance benefits is subject to taxation under Section 409A of
the Internal Revenue Code of 1986, as amended, as determined by the Bank or BCH,
with the advice of its independent accounting firm or other tax advisors, then
the severance payment shall be subject to modification as set forth hereafter in
paragraph 17 of this Agreement.
-13-
The
Executive acknowledges and agrees that severance benefits pursuant to this
paragraph 16 (e) are in lieu of all damages, payments and liabilities on account
of the events described above for which such severance benefits may be due the
Executive under paragraph 16 (e) of this Agreement. This paragraph 16 (e)
shall be binding upon and inure to the benefit of the Bank and BCH and their
respective successors and assigns, and the Executive and the Executive’s heirs,
beneficiaries, successors, permitted assigns or transferees, executors,
administrators, trustees, and any other legal or personal
representatives.
Notwithstanding
the foregoing, the Executive shall not be entitled to receive severance benefits
pursuant to this paragraph 16 (e) in the event of an occurrence described in
paragraph 16 (a), subparagraphs (5), (7), (8), (9), or (10, to the extent of an
Executive breach), or in the event the Executive terminates employment in
accordance with paragraph 16 (c) (i) and the termination is not a result of or
based upon the occurrence of any event described in paragraph 16 (e) (ii)
above.
A “change
in control” for purposes of this Agreement and paragraph 16 (e), subject to the
limitation of Section 409A of the Internal Revenue Code of 1986, as amended, set
forth in paragraph 17 of this Agreement, shall mean the occurrence of any of the
following events with respect to the Bank or BCH: (i) a change in control of a
nature that would be required to be reported in response to Item 6 (e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), or in response to any other form or
report to the regulatory agencies or governmental authorities having
jurisdiction over the Bank or BCH or any stock exchange on which BCH's shares
are listed which requires the reporting of a change in control; (ii) any merger,
consolidation or reorganization of the Bank or BCH in which the Bank or BCH does
not survive; (iii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) of any assets
of the Bank or BCH having an aggregate fair market value of fifty percent (50%)
or more of the total value of the assets of the Bank or BCH, reflected in the
most recent consolidated audited or interim unaudited balance sheet of BCH; (iv)
a transaction whereby any “person” (as such term is used in the Exchange Act) or
any individual, corporation, partnership, trust or any other entity is or
becomes the beneficial owner, directly or indirectly, of securities of BCH or
Bank representing twenty-five percent (25%) or more of the combined voting power
of BCH’s or Bank’s then outstanding securities; (v) a situation where, in any
one-year period, individuals who at the beginning of such period constitute the
Board of Directors of the Bank or BCH cease for any reason to constitute at
least a majority thereof; or (vi) the shareholder(s) of the Bank or BCH approve
the sale or transfer of substantially all of the Bank’s or BCH’s assets to
parties that are not within a “controlled group of corporations” (as that term
is defined in Section 1563 of the Internal Revenue Code of 1986, as amended) in
which the Bank, or as applicable BCH, is a member.
-14-
Notwithstanding
the foregoing or anything else contained herein to the contrary, (i) if the
individuals who constitute the directors of the Bank and BCH at the time a
definitive agreement for a proposed transaction described above (excepting
therefrom the situation described in subparagraph (v) above) is executed will,
according to the terms of the definitive agreement, constitute a majority of the
members of the board of directors of the resulting entity(ies) or acquiring
person(s) that control(s) or is(are) the successor(s) to the Bank and BCH
immediately after the transaction, then before a transaction or event that would
otherwise constitute a change in control shall be deemed to have occurred, such
directors of the Bank and BCH may determine by majority vote that the specific
transaction or event does not constitute a change in control; and (ii) there
shall not be a change in control hereunder in the event that (A) an Employee
Stock Ownership Plan is sponsored by BCH which is the party that acquires
“control” or is the principal participant in the transaction constituting a
“change in control,” as described above, or (B) a reorganization is initiated by
the Board of Directors of the Bank or BCH in which the Bank is merged with and
into another wholly-owned bank subsidiary of BCH to consolidate operations under
the charter of such other bank subsidiary.
17.
Section 409A
Limitation.
(a) General. It is
the intention of BCH, the Bank and the Executive that this Agreement shall be
interpreted and administered consistent with Section 409A of the Internal
Revenue Code of 1986, as amended (“Section 409A”) and that the severance
benefits payable to the Executive under this Agreement either be exempt from, or
otherwise comply with, Section 409A. Notwithstanding any other term,
provision, or other matter set forth elsewhere in this Agreement, to the extent
that any provision of this Agreement may be determined by BCH or the Bank, with
the advice of its independent accounting firm or other tax advisors, to be
subject to and not in compliance with Section 409A, such provisions shall be
interpreted in the manner required to comply with Section 409A.
BCH, the
Bank and the Executive further acknowledge and agree that if, in the judgment of
BCH or the Bank, with the advice of its independent accounting firm or other tax
advisors, amendment of this Agreement is necessary to clarify any of the terms
of this Agreement, or to comply with Section 409A, BCH, the Bank and the
Executive will negotiate reasonably and in good faith to amend the terms of this
Agreement to the extent necessary so that it complies (with the most limited
possible economic effect on BCH, the Bank and the Executive) with Section
409A.
-15-
(b) Payments to Specified
Employees. Notwithstanding any provision of this Agreement to the
contrary, if the Executive is considered a “Specified Employee” (as defined
below), any distributions hereunder which would otherwise be made to the
Executive pursuant to the terms of this Agreement shall not be made during the
first six (6) months following termination of employment that constitutes a
separation from service pursuant to Section 409A unless the Executive dies prior
to the end of such six (6) month period. Any distribution which would
otherwise be paid to the Executive during such six (6) month period shall be
accumulated and paid to the Executive in a lump sum on the first day of the
seventh (7th) month
following such a separation from service. All subsequent distributions
shall be paid in the manner otherwise specified in this Agreement.
The term
“Specified Employee” shall mean an employee who at the time of separation from
service is a “Key Employee” of BCH or the Bank or a successor entity of either,
if any stock of BCH, the Bank or a successor entity of either is publicly traded
on an established securities market or otherwise. For purposes of this
Agreement, an employee is a Key Employee if the employee meets the requirements
of section 416(i)(1)(A)(i), (ii), or (iii) of the Internal Revenue Code of 1986,
as amended (applied in accordance with the regulations thereunder and
disregarding section 416(i)(5) thereof) at any time during the twelve (12) month
period ending on December 31 (the "Identification Period"). If the
employee is a Key Employee during an Identification Period, the employee is
treated as a Key Employee for purposes of this Agreement during the twelve (12)
month period that begins on the first day of April following the close of the
Identification Period.
18.
Gross-Up of Section 280G and
409A Tax. If all or any portion of the amounts payable to the
Executive under this Agreement, either alone or together with other payments
which the Executive has the right to receive from the Bank or BCH, constitute
“excess parachute payments” within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the “Code”), that are subject to the excise
tax imposed by Section 4999 of the Code (or similar tax and/or assessment), or
any tax is imposed on the Executive under Section 409A, the Bank or BCH (and its
successor) shall increase the amounts payable under this Agreement to the extent
necessary to afford the Executive substantially the same economic benefit under
this Agreement as the Executive would have received had no such excise tax under
Section 280G or tax under Section 409A been imposed on the payments due the
Executive under this Agreement. The determination of the amount of any such
taxes shall be made by the independent accounting firm employed by the Bank or
BCH, immediately prior to the change in control, or such other independent
accounting firm or advisor as may be mutually agreeable to the Bank or BCH (and
their respective successor), and the Executive in the exercise of their
reasonable good faith judgment. If, at a later date, it is determined
(pursuant to final regulations or published rulings of the Internal Revenue
Service, final judgment of a court of competent jurisdiction, or otherwise) that
the amount of any such taxes payable to the Executive is greater than the amount
initially so determined, then the Bank or BCH (or its successor) shall pay to
the Executive an amount equal to the sum of such additional taxes and any
interest, fines and penalties resulting from such underpayment, plus an amount
necessary to reimburse the Executive substantially for any income, excise or
other taxes payable by the Executive with respect to such
amounts.
-16-
19.
Notices. Any
notices to be given hereunder shall be in writing and may be transmitted by
personal delivery or by U.S. mail, registered or certified, postage prepaid with
return receipt requested. Mailed notices shall be addressed to the
Executive at the address listed in the Executive’s personnel file and to the
Bank or BCH at its principal business office located at 00 Xxxxxxx Xxxx., Xxx
Xxxx, Xxxxxxxxxx. A party may change the address for receipt of notices by
written notice in accordance with this paragraph 19. Notices delivered
personally shall be deemed communicated as of the date of actual receipt; mailed
notices shall be deemed communicated as of three (3) days after the date of
mailing.
20.
Arbitration.
All claims, disputes and other matters in question arising out of or relating to
this Agreement or the breach or interpretation thereof, other than those matters
which are to be determined by the Bank or BCH, in its sole and absolute
discretion, shall be resolved by binding arbitration before a representative
member, selected by the mutual agreement of the parties, of the Judicial
Arbitration and Mediation Services, Inc. (“JAMS”), in accordance with the rules
and procedures of JAMS then in effect which are incorporated herein by this
reference. In the event JAMS is unable or unwilling to conduct such
arbitration, or has discontinued its business, the parties agree that a
representative member, selected by the mutual agreement of the parties, of the
American Arbitration Association (“AAA”), shall conduct such binding arbitration
in accordance with the rules and procedures of the AAA then in effect which are
incorporated herein by this reference. Notice of the demand for
arbitration shall be filed in writing with the other party to this Agreement and
with JAMS (or AAA, if necessary). In no event shall the demand for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statute of limitations. Any award rendered by
JAMS or AAA shall be final and binding upon the parties, and as applicable,
their respective heirs, beneficiaries, legal representatives, agents, successors
and assigns, and may be entered in any court having jurisdiction thereof.
The obligation of the parties to arbitrate pursuant to this clause shall be
specifically enforceable in accordance with, and shall be conducted consistently
with, the provisions of Title 9 of Part 3 of the California Code of Civil
Procedure. Any arbitration hereunder shall be conducted in San Jose,
California, unless otherwise agreed to by the parties.
21.
Attorneys' Fees and
Costs. In the event of litigation, arbitration or any other action
or proceeding between the parties to interpret or enforce this Agreement or any
part thereof or otherwise arising out of or relating to this Agreement, the
prevailing party shall be entitled to recover its costs related to any such
action or proceeding and its reasonable fees of attorneys, accountants and
expert witnesses incurred by such party in connection with any such action or
proceeding. The prevailing party shall be deemed to be the party which
obtains substantially the relief sought by final resolution, compromise or
settlement, or as may otherwise be determined by order of a court of competent
jurisdiction in the event of litigation, an award or decision of one or more
arbitrators in the event of arbitration, or a decision of a comparable official
in the event of any other action or proceeding. Every obligation to
indemnify under this Agreement includes the obligation to pay reasonable fees of
attorneys, accountants and expert witnesses incurred by the indemnified party in
connection with matters subject to indemnification.
-17-
22.
Entire
Agreement. This Agreement supersedes any and all other agreements,
either oral or in writing, between the parties with respect to the employment of
the Executive by the Bank and BCH and contains all of the covenants and
agreements between the parties with respect to the employment of the Executive
by the Bank and BCH; provided, that, this Agreement does not supersede or
replace the rights and benefits under (i) the Indemnification Agreement
specified in paragraph 5 of this Agreement, (ii) the Supplemental Executive
Retirement Plan specified in paragraph 13(d) of this Agreement or (iii) any
stock option or equity award agreement between BCH and the Executive as
specified in paragraph 12 of this Agreement. Each party to this Agreement
acknowledges that no other 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 set forth herein, and that no other
agreement, statement, or promise not contained in this Agreement shall be valid
or binding on either party.
23.
Modifications.
Any modification of this Agreement will be effective only if it is in writing
and signed by a party or its authorized representative.
24.
Waiver. The
failure of a party to insist on strict compliance with any of the terms,
provisions, covenants, or conditions of this Agreement by another party shall
not be deemed a waiver of any term, provision, covenant, or condition,
individually or in the aggregate, unless such waiver is in writing, nor shall
any waiver or relinquishment of any right or power at any one time or times be
deemed a waiver or relinquishment of that right or power for all or any other
times.
25.
Partial
Invalidity. If any provision in this Agreement is held by a court
of competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect without being
impaired or invalidated in any way.
26.
Interpretation.
This Agreement shall be construed without regard to the party responsible for
the preparation of the Agreement and shall be deemed to have been prepared
jointly by the parties. Any ambiguity or uncertainty existing in this
Agreement shall not be interpreted against either party, but according to the
application of other rules of contract interpretation, if an ambiguity or
uncertainty exists.
27.
Governing Law and
Venue. The laws of the State of California, other than those laws
denominated choice of law rules, shall govern the validity, construction and
effect of this Agreement. Any action which in any way involves the rights,
duties and obligations of the parties hereunder and is not resolved by binding
arbitration shall be brought in the courts of the State of California and venue
for any action or proceeding shall be in Santa Xxxxx County or in the United
States District Court for the Northern District of California, and the parties
hereby submit to the personal jurisdiction of said courts.
-18-
28.
Payments Due Deceased
Executive. If the Executive dies prior to the expiration of the
term of his employment, any payments that may be due the Executive from the Bank
or BCH under this Agreement as of the date of death shall be paid to the
Executive's heirs, beneficiaries, successors, permitted assigns or transferees,
executors, administrators, trustees, or any other legal or personal
representatives.
29.
Assignment/Binding
Effect. Except as specifically set forth in this Agreement, the
Executive may not assign, delegate or otherwise transfer any of the Executive’s
rights, benefits, duties or obligations under this Agreement without the prior
written consent of the Bank and BCH. This Agreement shall inure to the
benefit of and be binding upon the Bank and BCH and their respective successors
and assigns, and the Executive and the Executive’s heirs, beneficiaries,
successors, permitted assigns or transferees, executors, administrators,
trustees, and any other legal or personal representatives.
30.
TARP
Limitations. The parties acknowledge and agree that BCH has entered
into agreements in connection with the sale of BCH securities to the United
States Department of Treasury (the “Treasury”) under the TARP Capital Purchase
Program (the “CPP”) and the Executive has also entered into an agreement waiving
certain rights under executive compensation arrangements such as this
Agreement. Such agreements with the Treasury (the “CPP Agreements”) impose
limitations upon executive compensation arrangements which are binding upon BCH,
the Bank and the Executive. Among the executive compensation limitations
imposed under the CPP are (i) prohibitions upon adoption of compensation
arrangements that may incentivize management officers such as the Executive to
take unnecessary and excessive risks, (ii) restrictions upon making any payment
that would be considered a golden parachute payment in violation of the CPP, and
(iii) requirements that any bonus and incentive compensation paid to the
Executive is subject to recovery or “clawback” if the payments were based on
materially inaccurate financial statements or performance metric criteria.
The parties further acknowledge and agree that additional limitations may be
imposed by the United States Congress, Treasury, and/or banking regulatory
authorities having jurisdiction over the operations of BCH and the Bank which
may affect the rights and obligations of BCH, the Bank and the Executive under
this Agreement and/or pursuant to such other compensation
arrangements.
Notwithstanding any provision of this
Agreement to the contrary, BCH, the Bank and the Executive further acknowledge
and agree that the limitations and restrictions under the CPP Agreements will
continue in effect as limitations and restrictions upon the provisions of this
Agreement and the rights and obligations of the parties hereunder including, but
not limited to, the Executive’s entitlement or right to receive incentive
compensation under Section 11, severance benefits under Sections 16(d) and
16(e), tax gross-up under Section 18 and/or such other compensation provided for
in this Agreement, until such time as the CPP Agreements and any limitations or
restrictions imposed under current or future regulations promulgated by the
United State Congress, Treasury, and/or banking regulatory authorities having
jurisdiction over the operations of BCH and the Bank are terminated. Any
conflicts between the provisions of this Agreement and the foregoing limitations
and restrictions shall be resolved in favor of compliance with such limitations
and restrictions.
-19-
31.
Effect of Termination on
Certain Provisions. Upon the termination of this Agreement, the
obligations of the Bank, BCH and the Executive hereunder shall cease except to
the extent of the Bank’s or BCH’s obligation to make payments, if any, to or for
the benefit of the Executive following termination, and provided that paragraphs
4, 5, 6, 7, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30 and 31 shall
remain in full force and effect.
32.
Advice of Counsel and
Advisors. The Executive acknowledges and agrees that he has read
and understands the terms and provisions of this Agreement and prior to signing
this Agreement, he has had the advice of counsel and/or such other advisors as
he deemed appropriate in connection with his review and analysis of such terms
and provisions of this Agreement.
33.
Required Regulatory
Approvals. Notwithstanding any provision of this Agreement to the
contrary, if approvals of banking regulatory or other governmental authorities
having jurisdiction over the operations of BCH or the Bank are required as a
condition to Executive’s employment pursuant to this Agreement including,
without limitation, the approval of the BGFRS or its Federal Reserve Bank of San
Francisco, the FDIC, or the OCC, then in such event this Agreement shall not be
effective until such approvals are obtained. In the event any such
approvals are not obtained, this Agreement and the rights and obligations of the
parties hereunder shall automatically and without further action of any party
hereto be terminated.
-20-
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written in the City of San Xxxx, County of Santa Xxxxx, State of
California.
|
EXECUTIVE
|
|||
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By:
|
|
|
|
|
Xxxxx
X. Xxxxxx, M.D.
|
Xxxxxx
X. Sa
|
||
|
Chairman
of the Board
|
|||
|
By:
|
|
||
|
Xxxxxx
X. Xxxxx
|
|||
|
Vice-Chairman
of the Board and
|
|||
|
Chairman
of the Compensation
|
|||
|
Committee
|
|||
|
BRIDGE
BANK, NATIONAL ASSOCIATION
|
|||
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By:
|
|
||
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Xxxxx
X. Xxxxxx, M.D.
|
|||
|
Chairman
of the Board
|
|||
|
By:
|
|
||
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Xxxxxx
X. Xxxxx
|
|||
|
Vice-Chairman
of the Board and
|
|||
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Chairman
of the Compensation
|
|||
|
Committee
|
|||
-21-
