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EXHIBIT 10.21.3
AGREEMENT
THIS AGREEMENT is made and entered into as of the 2ND DAY OF JANUARY
1997 by and between STERLING BANK, a California corporation, hereinafter
referred to as "Employer", and XXXXXX XXXXXX, hereinafter referred to as
"Employee" and replaces the agreement dated January 1, 1994.
The parties contract with reference to the following facts:
A. Employer desires to employ Employee as its President
and Employee desires to accept employment with Employer in such capacity.
B. The parties are willing to enter into an agreement
providing for such employment upon the terms and conditions hereinafter set
forth.
1. EMPLOYMENT. Employer hereby agrees to
employ and does hereby employ Employee, and Employee agrees to accept and hereby
accepts employment by Employer, on the terms and subject to the conditions set
forth in this Agreement.
2. COMPENSATION.
2.1 Salary. Employer agrees to pay to
Employee salary at the rate of One Hundred and Forty Thousand, Two Hundred and
Eighty dollars ($140,280.00). Increases in the salary rate shall be at the
discretion of the Board of Directors of Employer. Salary called for by this
Agreement shall be Prorated and paid out weekly, semi-monthly or monthly, as the
Employer normally pays salary to executive officers.
2.2 Bonus. Upon completion of each
fiscal year of Employer, Employer shall consider a bonus for Employee based upon
Employee's performance during the completed fiscal year and the overall
financial performance of Employer. Employer may award Employee bonuses based
upon such consideration, and intends to do so. However, Employer shall not be
obligated in any way whatsoever to grant such bonuses which shall be granted, if
at all, at the sole discretion of Employer.
3. DUTIES, TIME AND EFFORTS. Employee Shall
serve as President of Employer and as such, shall report to the Chairman of the
Board of Directors, and his duties shall include generally, but without
limitation, authority and responsibility for the whole and overall supervision
of the banking aspects of Employer's business, the managing of the portfolio of
loans and deposit liabilities and the procurement of new business for Sterling
Bank; and he shall also undertake such other reasonable duties similar
managerial nature as the Chairman may at any time or from time to time, direct
him to perform including, but not limited to, providing services to subsidiaries
and/or affiliates of Employer without additional compensation. Employee shall
devote his full productive time, energies and abilities to the proper and
efficient performance of Employer's business pursuant to the employment
hereunder. Employee shall at all times during the term hereof be furnished with
such office, stenographic and other necessary secretarial assistance, and such
other facilities, amenities and services as are suitable to Employee's duties
hereunder. Unless otherwise
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agreed to by Employer, the Employee's offices shall be maintained at the
premises of the principal office of the Employer in Los Angeles, California;
provided, however, that in connection with the performance of his duties and
responsibilities, the Employee acknowledges that he may be required to undertake
reasonable business traveling. Employee may not without the prior express
authorization of Employer's Board of Directors directly or indirectly during the
term of this Agreement engage in any activity competitive with the business of
Employer, whether acting alone, as an owner, shareholder, partner, or
consultant, as an officer, director, or employee of any other corporation, or
otherwise; provided, however, that nothing herein contained shall prevent
employee from purchasing and/or holding less than one percent (1%) of the issued
and outstanding stock of a publicly-held corporation.
4. VACATION. Employee shall be entitled to a vacation of
three (3) weeks during each twelve (12) month period of the term of this
Agreement. The date or dates of said vacation shall be determined by Employee
and the Chairman of Employer. If for any reason Employee does not take his full
three (3) weeks of vacation as provided above, he may carry over a maximum of
one (1) week into the following year, but if he does not use the carried over
vacation week in that year it shall expire. Therefore, under no circumstances
regardless of employees failure to take vacations, would he be entitled to more
than four (4) weeks vacation during any twelve (12) month period.
5. TERM
5.1 The term of employment shall commence upon
the date of this Agreement and terminate on the 31st day of December 1997 unless
sooner terminated pursuant to Section 5.4 below, or upon the happening of any of
the following events:
(a) Whenever Employer and Employee shall
otherwise mutually agree to termination;
(b) Conviction of Employee for any crime
involving a dishonest act or involving any behavior not expected of an executive
of a bank which would make the continuance of his employment detrimental to
Employer;
(c) Death of Employee;
(d) Disability of Employee not arising
out of an injury sustained while on Employer's business extending beyond ninety
(90) consecutive days or totaling more than ninety (90) days in any period of
three hundred sixty-five (365) days (not limited to any calendar or fiscal
year);
(e) Commission of a dishonest act by the
Employee in the course of his employment;
(f) For "good cause" as defined in Section
5.2 below and pursuant thereto.
(g) At Employee's sole option,
exerciseable at any time upon ninety (90) days written notice.
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5.2 Termination for Good Cause After Notice
and Failure To Cure. Employer may at any time during the term of this Agreement
terminate this Agreement for good cause by written notice to the Employee by
complying with the notice requirements and restriction in Section 5.3. Good
cause shall include, for purposes of illustration, but shall not be limited to
the following reasons:
(a) Persistent unwillingness or inability
to perform his duties.
(b) Persistent malfeasance, misfeasance
of nonfeasance in connection with the performance of his duties; such conduct to
be determined solely by the Employer.
(c) Willful and intentional acts having
the effect of injuring the reputation, business or business relationships of
Employer.
(d) Breach of any material provision of
this Agreement.
5.3 Notice Requirements and Restrictions.
Provided, however, and by restriction to the right of Employer set forth in
Section 5.2, in the event Employer contends that Employee is not performing the
services required by this Agreement or that it has good cause to terminate
Employee pursuant to Section 5.2 of this Agreement, Employer shall provide
Employee with a written notice specifying in reasonable detail the services or
matters which it contends Employee has not been adequately performing and why
Employer has good cause to terminate this Agreement and what Employee should do
to adequately perform his obligations hereunder. If Employee performs the
required services within seven (7) days of receipt of the notice or immediately
modifies his performance to correct the matters complained of, Employee's breach
will be deemed cured and he shall not be terminated; provided, however, if the
nature of the service not performed by the Employee or the matters complained of
are such that more than seven (7) days are reasonably required to perform the
required service or to correct such matters, then Employee's breach will be
deemed cured if Employee commences to perform such services or to correct such
matters within said seven (7) day period and thereafter diligently prosecutes
such performance or correction to completion. If in the opinion of the Employer
the Employee does not perform the required services or modify his performance to
correct the matters complained of within said seven (7) day period, Employer
shall have the right by written notice to terminate this Agreement at the end of
said seven (7) day period.
If Employer terminates the Employee under the provisions in Section
5.2, for good cause as the Employer shall in its sole discretion determine, the
Employee shall receive an amount equal to ninety (90) days of salary, at the
then current rate, subject to deduction for all required federal or state taxes,
on the date of such termination, in lieu of any and all other compensation.
5.4 Termination of Employment Without Cause
Because of Governmental Restrictions on Continued Operations of Employer or
Bank.
The Employee understands that the conduct of Employer's business and the banking
business is, and during the term of this Agreement will be, subject to
regulation by law and by rules, regulations, permits and licenses of various
governmental bodies. If the continuation of Employer's business or the
continuation of the banking business by Sterling Bank is for any reason whatever
prohibited, prevented, or substantially restricted by a Court of law or such
governmental bodies, Employer shall
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thence forward have the right, at its option, to terminate this Agreement by
giving written notice of such termination without liability other than for such
compensation as shall then have accrued but not yet been paid.
6. EMPLOYERS AUTHORITY. To the extent that the following
is not inconsistent with the other provisions of this Agreement, Employee agrees
to observe and comply with the rules and regulations of Employer as adopted by
Employer's Board of Directors respecting performance of his duties and to carry
out and perform orders, directions and policies of Employer as they may be, from
time to time, stated to him either orally or in writing.
7. EXPENSES AND FRINGE BENEFITS.
7.1 Employer and Employee agree that Proper
discharge of the duties imposed upon Employee shall require the frequent use of
an automobile. The Corporation hereby agrees that it shall provide Employee with
a standard mid-size automobile, chosen by the Employee and Employer and suitable
for use by a President of an institution such as Employer. Such automobile shall
be purchased or leased by Employer and provided to Employee for his exclusive
use, or at the option of Employee, Employee shall purchase or lease an
automobile and the reasonable cost thereof shall be reimbursed by Employer for
so long as he is employed hereunder. Notwithstanding the foregoing, Employer
shall not be required to expend more than Five Hundred Dollars ($500.00) per
month in connection with such purchase, lease or reimbursement inclusive of
insurance, license, taxes and operating expenses. Employee may, at his option,
receive the aforementioned sum of $500.00 as an automobile allowance, in lieu of
being provided with a bank-owned automobile.
7.2 Employer shall pay or reimburse all expenses
reasonably incurred by Employee in discharge of Employee's duties hereunder.
Such expenses shall include, without limitation, the following:
(a) Education expenses incurred for the purpose of
maintaining or improving Employee's skills;
(b) Expenses for travel, lodging, and related
expenses in connection with conventions or meetings, attendance at which is
necessary or appropriate in connection with the performance by Employee of his
duties required hereunder;
(c) Expenses for meals, entertainment and similar
items reasonably incurred by Employee in connection with the business of the
Employer; and
(d) Monthly dues for employees membership in the
Xxxxxxxx Club.
(e) Such other expenses incurred by the Employee
reasonably related to the discharge by Employee of his duties as set forth
herein.
7.3 Employer shall require, as a condition of payment or
reimbursement for any item pursuant to Section 7.2, that Employee furnish
Employer with reasonable documentation evidencing that the expense has been
incurred and the relationship of such item to the business of Employer or the
duties of Employee.
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7.4 Notwithstanding any provisions herein to the
contrary, Employer shall provide to Employee all other Employee fringe benefits
which are generally provided for or made available to the employees of Employer.
Without limiting the generality of the preceding sentence, Employee shall be
entitled to participate in any group life and health insurance plans, any
qualified or non-qualified pension or profit sharing plan adopted or maintained
by the Employer and participation in Employer's Stock Ownership Plan (ESOP) , if
continued. Such participation shall be on the same basis as the majority of
participants in such plan. In addition, Employer will provide a $100,000 term
life insurance policy payable as designated by Employee. The premiums on such
policy will be paid by the Employer and will aggregate approximately $1,200 per
year.
8. CONFIDENTIAL DISCLOSURE. Except to the extent that
the proper performance of the Employee's duties pursuant to this Agreement may
require disclosure, Employee agrees that he will not for any reason or at any
time during or subsequent to the term of this Agreement disclose to any person
any secret of confidential information relating to the services of Employer or
any trade secrets of Employer or any other secret or confidential information
relating to Employer or the products or services of Employer. Employee agrees
that the remedy at law for any breach of the foregoing will be inadequate, and
that Employer shall be entitled to injunctive relief for any such breach.
9. MISCELLANEOUS
9.1 Assignability of Agreement. The provisions
of this agreement shall inure to the benefit of the Parties hereto, and their
respective permitted heirs, legal representatives, successors and assigns. The
obligations of Employee under this Agreement shall be personal and not delegable
by him in any manner whatsoever.
9.2 Notices. Any notice, request, instruction
or other document to be given hereunder by either party hereto to the other
shall be in writing and delivered personally or sent by certified or registered
mail, postage prepaid, and if mailed to any addressee in a state other than the
state of mailing, by air mail, addressed as follows:
IF TO EMPLOYEE: Xxxxxx Xxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
IF TO EMPLOYER: Xxxxx X. Xxxxxxxx, Chairman
Sterling Bank
0000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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Any notice so given shall be deemed received when delivered personally,
or (if mailed) when dispatched. Any party may change the address to which
notices are to be sent by giving written notice of such change of address to the
other party in the manner herein provided for giving notice.
9.3 Waiver. No waiver of any breach of any warranty,
representation, covenant or other term or provision of this Agreement shall be
deemed to be a waiver of any preceding or succeeding breach of the same or any
other warranty, representation, covenant, term or provision. No extension of the
time for performance of any obligation or other act shall be deemed to be an
extension of the time for the performance of any other obligation or any other
act.
9.4 Amendment to Agreement. This Agreement contains the
entire agreement between the Parties hereto with respect to the transactions
contemplated herein, and may not be amended, supplemented or discharged except
by an instrument in writing signed by both Parties hereto.
9.5 Disputes/Attorneys Fees. Should any dispute arise
concerning the terms or the interpretations of this Agreement, the prevailing
Party shall be entitled to and be awarded reasonable attorneys' fees and costs
in addition to any other relief to which it may be entitled.
9.6 Time of the Essence. Time is of the essence of each
provision of this Agreement in which time is an element.
9.7 Arbitration. The parties agree if any controversy or
claim shall arise out of this Agreement or the breach hereof and either party
shall request that the matter be settled by arbitration. The matter shall be
settled exclusively by arbitration in accordance with the rules then in effect
of the American Arbitration Association in the city of Los Angeles, California,
as the same may be modified by the statutes of California then in effect, by a
single arbitrator, if the parties shall agree upon one, or by one arbitrator
appointed by each party and a third arbitrator appointed by the other
arbitrators. In case of any failure of a party to make an appointment referred
to above within two (2) weeks after written notice of controversy, such
appointment shall be made by the Association. All arbitration proceedings shall
be held in the City of Los Angeles, California, and each party agrees to comply
in all respects with any award made in such proceeding and to the entry of a
judgment in any jurisdiction upon any award rendered in such Proceeding. All
costs and expenses of arbitration (including costs of preparation therefor and
reasonable attorneys' fees incurred in connection therewith) of the party
prevailing in such arbitration shall be borne by the losing party to such
arbitration, unless otherwise directed by the arbitrators. Notwithstanding any
provision of this section herein set forth no party may make a request for
arbitration hereunder with respect to any matter at any time following the
expiration of thirty (30) days after notice of the filing of a legal action with
respect to such matters in a court of competent jurisdiction.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement effective as
of: JANUARY 2, 1997
STERLING BANK XXXXXX X. XXXXXX
"Employer" "Employee"
By: /s/ XXXXX X. XXXXXXXX By: /s/ XXXXXX X. XXXXXX
------------------------- ------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board
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