EXHIBIT 10.30
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
November 16, 2007, by and between Service 1st Bank ("Bank") and Xxxxxx X. Xxxxxx
Xxxxx ("Executive").
RECITALS
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WHEREAS, Bank is a California state-chartered banking corporation,
subject to the supervision and regulation of the California Department of
Financial Institutions ("CDFI") and the Federal Deposit Insurance Corporation
("FDIC");
WHEREAS, Bank is a wholly-owned subsidiary of Service 1st Bancorp, a
California corporation and bank holding company registered under the Bank
Holding Company Act of 1956, as amended ("Bancorp"), subject to the supervision
and regulation of the Board of Governors of the Federal Reserve System
("BGFRS"); and
WHEREAS, Bank and Executive desire to enter into an employment
agreement for the purposes of engaging the services of Executive and to
delineate the rights, obligations and responsibilities of Bank and Executive.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Bank and Executive agree as follows:
AGREEMENT
1. Term of Employment. Bank hereby employs Executive in the
position with Bank as hereinafter set forth, and Executive hereby accepts
employment with Bank upon the terms and conditions hereinafter set forth, for a
period of three (3) years from the date hereof, subject to the termination
provisions of paragraph 16 and any required regulatory approvals as specified in
paragraph 28 of this Agreement. Upon the occurrence of the third annual
anniversary of the date of this Agreement, and on each annual 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.
2. Duties and Obligations of Executive. Executive shall serve as
the Executive Vice President and Chief Credit Officer of Bank and shall perform
the duties of such positions as set forth in the position description approved
by resolutions adopted by the Board of Directors of Bank, which shall be
attached to this Agreement as an addendum, and such additional duties as may
from time to time be reasonably requested of him by the Board of Directors of
Bank.
3. Devotion to Bank's Business.
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(a) Executive shall devote his business time, ability,
and attention to the business of Bank 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 Bank's Board of Directors.
(b) 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 Executive under this Agreement. It is expressly understood
and agreed that Executive may continue to participate in any such activities in
which Executive participated prior to the date of this Agreement with the
knowledge of Bank. Nothing in this Agreement shall be interpreted to prohibit
Executive from making passive personal investments; provided that, except for
ownership interests in businesses acquired prior to the date of this Agreement
which represent in each case less than three percent (3%) of the total ownership
of each such business, Executive shall not directly or indirectly acquire, hold,
or retain any ownership interest in any financial institution, including its
affiliated companies, or any other business competing with or similar in nature
to the business of Bancorp or Bank, or their respective subsidiaries or
affiliates, which conducts business or operations in San Xxxxxxx County.
(c) Executive agrees to conduct himself at all times with
due regard to public conventions and morals. Executive further agrees not to do
or commit any act that will reasonably tend to shock or offend the community and
have an adverse effect upon Bancorp or Bank.
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(d) 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. Executive therefore expressly agrees that in
addition to any other rights or remedies that Bank may possess, it shall be
entitled to injunctive and other equitable relief to prevent or remedy a breach
of this Agreement by Executive.
4. Noncompetition by Executive. Executive shall not, during the
term of this Agreement, directly or indirectly, either as a consultant, agent,
principal, stockholder (except as permitted in paragraph 3(b) of this
Agreement), officer, director, or in any other individual or representative
capacity, engage, assist, consult or participate in any other banking or
financial services business without the prior written consent of the Board of
Directors of Bank. Following the termination of this Agreement and during any
period when Executive is receiving severance payments from Bancorp or Bank
pursuant to or related to this Agreement, Executive shall be subject to the
foregoing noncompetition restrictions only with respect to banking or financial
services businesses which conduct business or operations in San Xxxxxxx County.
This paragraph 4 shall survive the expiration or termination of this Agreement.
5. Indemnification.
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(a) Executive shall indemnify and hold Bancorp and Bank,
and their respective affiliates and subsidiaries, harmless from all liability
for loss, damage, or injury to persons or property resulting from the gross
negligence or intentional misconduct of Executive.
(b) To the fullest extent permitted by law and applicable
regulations of the BGFRS, CDFI and FDIC, Bank shall indemnify 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 Executive (whether or not Bank is joined as a party
defendant) against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with said action if Executive
acted in good faith and in a manner Executive reasonably believed to be in the
best interests of Bank (and with respect to a criminal proceeding if Executive
had no reasonable cause to believe his conduct was unlawful), provided that the
alleged conduct of Executive arose out of and was within the course and scope of
his employment as an officer or executive of Bank.
6. Disclosure of Information. Executive shall not, either before
or after termination of this Agreement, without the prior written consent of
Bank's Board of Directors 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 not otherwise
publicly available concerning the business or operations of Bancorp or Bank and
their respective affiliates and subsidiaries. Executive further recognizes and
acknowledges that any financial information concerning any customers of Bancorp
or Bank and their respective affiliates or subsidiaries, as it may exist from
time to time, is strictly confidential and is a valuable, special and unique
asset of Bancorp's and Bank's business. 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 Executive is required by law to
disclose such information described in this paragraph 6, Executive will provide
Bank and its 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 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 Executive may disclose (on an
"as needed" basis only) such information to such tribunal or other party without
liability hereunder. Notwithstanding the foregoing, Executive may disclose such
information concerning the business or operations of Bancorp or Bank and their
respective affiliates and subsidiaries as may be required by the BGFRS, CDFI,
FDIC or other regulatory agency having jurisdiction over the operations of
Bancorp or Bank in connection with an examination of Bancorp or Bank or other
proceeding conducted by such regulatory agency. This paragraph 6 shall survive
the expiration or termination of this Agreement.
7. Written, Printed or Electronic Material. All written, printed
or electronic material, notebooks and records including, without limitation,
computer disks used by Executive in performing duties for Bancorp or Bank, other
than Executive's personal notes and diaries, are and shall remain the sole
property of Bank. Upon termination of employment, Executive shall promptly
return all such material (including all copies, extracts and summaries thereof)
to Bank. This paragraph 7 shall survive the expiration or termination of this
Agreement.
8. Surety Bond. Executive agrees that he will furnish all
information and take any other steps necessary from time to time to enable Bank
to obtain or maintain a fidelity bond conditional on the rendering of a true
account by Executive of all monies, goods, or other property which may come into
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the custody, charge, or possession of Executive during the term of his
employment. The surety company issuing the bond and the amount of the bond must
be acceptable to Bank. All premiums on the bond shall be paid by Bank. Bank
shall have no obligation to pay severance benefits to Executive in accordance
with paragraph 16 (d) of this Agreement in the event that the Executive's
employment is terminated in connection with the Executive's failure to qualify
for a surety bond at any time during the term of this Agreement and such failure
to qualify results from an occurrence described in paragraph 16(a) (5), (6),
(7), (8), (9), or (11, to the extent of an Executive breach).
9. Base Salary. In consideration for the services to be performed
hereunder, Bank shall pay to Executive a base salary at the rate of One Hundred
Thirty Dollars ($130,000.00) per annum, payable in substantially equal
installments during the term of this Agreement of approximately Five Thousand
Four Hundred Sixteen Dollars ($5,416.67) on the fifteenth and last days of each
month, subject to applicable adjustments for withholding taxes and prorations
for any partial employment period. Executive shall receive such annual
adjustments in base salary, if any, as may be determined by Bank's Board of
Directors, in its sole discretion.
10. Salary Continuation During Disability. If 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, Bank
agrees to pay Executive the base salary otherwise payable to Executive pursuant
to paragraph 9 of this Agreement reduced by the amounts received by Executive
from state disability insurance, or worker's compensation or other similar
insurance benefits through policies provided by Bancorp or Bank, 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 any disability insurance coverage provided by Bancorp or
Bank to Executive or as may otherwise be defined in any disability insurance
program of Bancorp or Bank. Notwithstanding anything herein to the contrary,
Bank shall have no obligation to make payments for a disability resulting from
the deliberate, intentional actions of Executive, such as, but not limited to,
attempted suicide or chemical dependence of Executive.
11. Incentive Compensation. Executive shall be entitled to receive
an annual incentive compensation payment as determined by the Board of Directors
of Bank based upon the implementation of Bancorp's strategic plan for each year
and the profitability of Bancorp for each year during the term of this
Agreement.
Notwithstanding the foregoing, no incentive compensation
payments shall be prorated for a partial year and Executive shall not be
entitled to receive incentive compensation payments based upon the increased
profitability described above for any year during the term of this Agreement in
which Executive was not employed by Bank for the full fiscal year. Any incentive
compensation payable to Executive shall be distributed to Executive following
review by Bank's Board of Directors of the final audited consolidated financial
results of operations for the immediately preceding fiscal year of Bancorp.
12. Stock Options. Executive has previously been granted incentive
stock options to purchase Fifteen Thousand (15,000) shares of Bancorp's common
stock pursuant to the 2004 Stock Option Plan (the "2004 Plan"). Notwithstanding
any contrary provision of the 2004 Plan or related Incentive Stock Option
Agreement, no rights of employment shall be conferred upon Executive or result
from the 2004 Plan or such Incentive Stock Option Agreement. Bancorp has a 2004
Stock Option Plan (the "2004 Plan") pursuant to which no stock options have been
granted to Executive as of the date of this Agreement. Executive shall be
eligible for a future grant of stock options under the 2004 Plan in the sole
discretion of Bancorp's Board of Directors. In the event stock options are
granted to Executive under the 2004 Plan in the future, no rights of employment
shall be conferred upon Executive or result from the 2004 Plan or stock option
agreements thereunder. Any employment rights and corresponding duties of
Executive pursuant to his employment by Bank shall be limited to and interpreted
solely in accordance with the terms and provisions of this Agreement.
13. Other Benefits. Executive shall be entitled to those benefits
adopted by Bancorp or Bank for all executive officers of Bancorp or Bank,
subject to applicable qualification requirements and regulatory approval
requirements, if any. 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 benefits available for executive officers of
Bancorp or Bank, the benefits otherwise provided to Executive:
(a) Vacation. Executive shall be entitled to annual
vacation leave, the duration of which shall be equal to an aggregate of four (4)
weeks. The vacation leave shall be paid by Bank based on Executive's then
existing rate of base salary each year during the term of this Agreement.
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 two (2) weeks
without the approval of Bank's Board of Directors, but at least two (2)
consecutive weeks of vacation must be taken each year during the term of this
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Agreement. Vacation time will accrue in accordance with Bank's personnel
policies.
(c) Insurance. Bank shall provide during the term of this
Agreement group life, health (including medical, dental and hospitalization),
accident and disability insurance coverage for Executive and his dependents
through a policy or policies provided by the California Bankers Association
group insurance program or similarly equivalent program. The cost of such
insurance shall be paid by Bank.
14. Annual Physical Examination. Bank shall pay or reimburse
Executive for the cost of an annual physical examination conducted by a
California licensed physician selected by Executive and reasonably acceptable to
Bank.
15. Business Expenses. Executive shall be reimbursed for all
ordinary and necessary expenses incurred by Executive in connection with his
employment. Executive shall also be reimbursed for expenses incurred in
activities associated with promoting the business of Bancorp or Bank, including
expenses for club memberships, entertainment, travel and other expenses for
attendance at conventions and education programs, and similar items. Bank will
pay for or will reimburse Executive for such expenses upon presentation by
Executive from time to time of receipts or other appropriate evidence of such
expenditures in form and content reasonably acceptable to Bank. Any club
memberships shall be approved in advance of purchase by Bank's Boards of
Directors.
16. Termination of Agreement.
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(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 a party's right,
without any obligation whatsoever, to waive an event reasonably susceptible of
waiver which otherwise benefits the waiving party, and the obligation of Bank to
pay the amounts which would otherwise be payable to 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 (11, to
the extent of Bank's breach) below shall Executive be entitled to receive
severance payments and continuation of group insurance benefits based upon
automatic termination pursuant to paragraph 16 (d) of this Agreement:
(1) The occurrence of circumstances that make it
impossible or impractical for Bancorp and
Bank to conduct or continue business.
(2) The death of Executive.
(3) The loss by Executive of legal capacity.
(4) The loss by Bancorp and Bank of legal
capacity to contract.
(5) The willful and material breach or the
habitual and continued neglect by the
Executive of his employment responsibilities
and duties;
(6) The continuous mental or physical incapacity
of the Executive, subject to disability
rights under this Agreement;
(7) The Executive's willful violation of any
federal banking or securities laws, or of
the bylaws, rules, policies or resolutions
of Bancorp or Bank, or the rules or
regulations of the BGFRS, CDFI, FDIC, or
other regulatory agency or governmental
authority having jurisdiction over Bancorp
or Bank, which has an adverse effect upon
the Bancorp or Bank;
(8) The written determination by a state or
federal banking agency or governmental
authority having jurisdiction over the
Bancorp or Bank that Executive is not
suitable to act in the capacity for which he
is employed by Bank;
(9) The Executive's conviction of (i) any felony
or (ii) a crime involving moral turpitude,
or the Executive's willful commission of a
fraudulent or dishonest act; or
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(10) The Executive's willful disclosure, without
authority, of any secret or confidential
information concerning Bancorp or Bank and
their respective affiliates or subsidiaries,
or taking any action which Bank's Board of
Directors determines, in its sole discretion
and subject to good faith, fair dealing and
reasonableness, constitutes unfair
competition with or induces any customer to
breach any contract with the Bancorp or
Bank, or their respective affiliates or
subsidiaries.
(11) Bank or Executive materially breaches the
terms or provisions of this Agreement.
(b) Termination by Bank. Bank may, at its election and in
its sole discretion, terminate this Agreement at any time for any reason, or for
no reason, without prejudice to any other remedy to which Bank may be entitled
either at law, in equity or under this Agreement. Upon such termination,
Executive shall immediately cease performing and discharging the duties and
responsibilities of his position with Bank and remove himself and his personal
belongings from Bank's premises. All rights and obligations accruing to
Executive under this Agreement shall cease at such termination, except that such
termination shall not prejudice Executive's rights regarding employment benefits
which shall have accrued prior to such termination, including the right to
receive the severance pay and benefits specified in paragraph 16 (d) below, and
any other remedy which 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 at any time by Executive for any reason, or no reason, by giving not
less than thirty (30) days' prior written notice of termination to Bank. Upon
such termination, all rights and obligations accruing to Executive under this
Agreement shall cease, except that such termination shall not prejudice
Executive's rights regarding employment benefits which shall have accrued prior
to such termination and any other remedy which Executive may have at law, in
equity or under this Agreement, which remedy accrued prior to such termination.
(d) Severance Pay and Insurance Continuation Benefits -
Termination by Bank. In the event of termination by Bank pursuant to paragraph
16 (b) or automatic termination based upon paragraph 16 (a) (1), (4) or (11, to
the extent of Bank's breach) of this Agreement, Executive shall be entitled to
receive severance pay (in addition to any base salary, incentive compensation,
or other payments, if any, due Executive) equal to six (6) months base salary,
payable by Bank in substantially equal installments on the fifteenth and last
days of each month commencing with the month immediately following such
termination. Executive shall also be entitled to receive continuation of group
insurance coverages in effect at the date of termination for Executive and his
dependents, at the expense of Bank for a period of one hundred eighty (180) days
from the date of termination. Notwithstanding the foregoing, in the event of a
"change in control" as defined in subparagraph (e) below, Executive shall not be
entitled to severance pay or continuation of group insurance coverages pursuant
to this subparagraph (d) and any rights of Executive to severance pay or other
benefits shall be limited to such rights and benefits as are specified in
subparagraph (e) below. Executive acknowledges and agrees that severance pay and
continuation of group insurance coverages pursuant to this subparagraph (d) is
in lieu of all damages, payments and liabilities on account of the early
termination of this Agreement and the sole and exclusive remedy for Executive
terminated at the will of Bank pursuant to paragraph 16 (b) or pursuant to
certain provisions of paragraph 16 (a) described herein.
(e) Severance Pay - Change in Control. In the event of a
"change in control" as defined herein and within a period of twenty-four (24)
months following consummation of such a change in control (i) Executive's
employment is terminated; or (ii) any adverse change occurs in the nature and
scope of Executive's position, responsibilities, duties, base salary, benefits
or location of employment; or (iii) any event occurs which reasonably
constitutes a demotion, significant diminution or constructive termination (by
resignation or otherwise) of Executive's employment, Executive shall be entitled
to receive severance pay in addition to any bonus or incentive compensation
payments due Executive. Any such severance pay due Executive shall be in an
amount equal to twelve (12) months of Executive's base salary at the rate in
effect immediately prior to termination. Executive shall also be entitled to
receive continuation of group insurance coverages in effect at the date of
termination for Executive and his dependents, at the expense of Bank for a
period of twelve (12) months from the date of termination.
Notwithstanding the foregoing provisions of paragraph 16 (e),
Executive may resign his position at any time during the period commencing on
the expiration of six (6) months following a "change in control" through the
expiration of twelve (12) months following a "change in control" and upon such
resignation receive the severance pay specified in paragraph 16 (e) above
without regard to whether an event described in paragraph 16 (e) (i), (ii) or
(iii) has occurred; provided, however, that Executive shall deliver a letter of
resignation that clearly states the intention to resign as of a date specified
therein and such date of resignation shall be at least thirty (30) days after
the date of receipt of the resignation letter by Executive's employer following
such "change in control."
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Any such severance shall be payable in lump sum by Bank within
thirty (30) days following the occurrence of an event described in paragraph 16
(e). Such severance payments, if any, shall be in lieu of all damages, payments
and liabilities on account of the events described above for which such
severance payments, if any, may be due Executive and any severance payment
rights of Executive under paragraph 16 (d) of this Agreement. This paragraph 16
(e) shall be binding upon and inure to the benefit of the parties and any
successors or assigns of the parties or any "person" as defined herein.
Notwithstanding the foregoing, Executive shall not be entitled
to receive nor shall Bank, their respective successors, assigns or any "person"
as defined herein be obligated to pay severance payments pursuant to this
paragraph 16 (e) in the event of an occurrence described in paragraph 16 (a)
(5), (7) (8), (9), (10), or (11, to the extent of Executive's breach), or in the
event Executive terminates employment in accordance with paragraph 16 (c) and
the termination is not a result of or based upon the occurrence of any event
described in paragraph 16 (e) (ii) or (iii) above.
17. Change in Control Definition. The term "change in control"
shall mean the first to occur of any of the following events with respect to
Bancorp or Bank:
(a) Any "person" (as such term is used in sections 13 and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), becomes the beneficial owner (as that term is used in section 13(d) of
the Exchange Act), directly or indirectly, of twenty-five percent (25%) or more
of Bancorp's or Bank's capital stock, other than a group of two or more persons
not (i) acting in concert for the purpose of acquiring, holding or disposing of
such stock or (ii) otherwise required to file any form or report with any
governmental agency or regulatory authority having jurisdiction over Bancorp or
Bank which requires the reporting of any change in control;
(b) During any period of not more than two (2)
consecutive years, not including any period prior to the date of this Agreement,
individuals who, at the beginning of such period, constitute the Board of
Directors of Bancorp or Bank, cease for any reason to constitute at least a
majority thereof;
(c) The effective date of any consolidation or merger of
Bancorp or Bank (after all requisite shareholder, applicable regulatory and
other approvals and consents have been obtained), other than a consolidation or
merger of Bancorp or Bank in which the holders of the voting capital stock of
Bancorp or Bank immediately prior to the consolidation or merger hold
more than fifty percent (50%) of the voting capital stock of the surviving
entity immediately after the consolidation or merger;
(d) The shareholders of Bancorp or Bank approve any plan
or proposal for the liquidation or dissolution of Bancorp or Bank; or
(e) The shareholders of Bancorp or Bank approve the sale
or transfer of substantially all of Bancorp's or Bank's assets to parties that
are not within a "controlled group of corporations" (as that term is defined in
section 1563 of the Code) in which Bancorp or, as applicable Bank, is a member.
Notwithstanding the foregoing or anything else contained
herein to the contrary, there shall not be a "change in control" for purposes of
this Agreement if the event which would otherwise come within the meaning of the
term "change in control" involves (i) an Employee Stock Ownership Plan sponsored
by the Bancorp, which Plan is the party that acquires "control" or is the
principal participant in the transaction constituting a "change in control," as
described above, or (ii) a reorganization in which the Bank or any bank
subsidiary of Bancorp is merged with and into another bank subsidiary of Bancorp
to consolidate operations under the charter of such other bank subsidiary.
18. Notices. Any notices to be given hereunder by a party to
another party 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 parties at the addresses
listed as follows:
Bank: Principal place of business address.
Executive: Principal residence address as shown in Bancorp's
Personnel Records and Executive's personal file.
Each party may change the address for receipt of notices by written
notice in accordance with this paragraph 18. 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.
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19. 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 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., San
Francisco, California ("JAMS"), in accordance with the rules and procedures of
JAMS then in effect. 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, San Francisco, California ("AAA"), shall
conduct such binding arbitration in accordance with the rules and procedures of
the AAA then in effect. 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 Stockton, California, unless otherwise agreed to by the parties.
20. 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.
21. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with respect to the
employment of Executive hereunder and contains all of the covenants and
agreements between the parties with respect to the employment of Executive
hereunder. 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 a party.
22. Modifications. Any modification of this Agreement will be
effective only if it is in writing and signed by a party or its authorized
representative.
23. Waiver. The failure of any party to insist on strict
compliance with any of the terms, provisions, covenants, or conditions of this
Agreement by the other 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.
24. 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.
25. Advice of Counsel and Advisors. 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 such other advisors as he deemed appropriate in connection with his review
and analysis of such terms and provisions of this Agreement.
26. 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 arbitration as set forth in paragraph 19 of this Agreement shall be
brought in the courts of the State of California and venue for any action or
proceeding shall be in San Xxxxxxx County or in the United States District Court
for the Eastern District of California, and the parties hereby submit to the
personal jurisdiction of said courts.
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27. Payments Due Deceased Executive. If Executive dies prior to
the expiration of the term of his employment, any payments that may be due
Executive under this Agreement as of the date of death shall be paid to
Executive's executors, administrators, heirs, personal representatives,
successors, or assigns.
28. Regulatory Approval. Bank and Executive agree to cooperate in
obtaining any required regulatory approvals of this Agreement from the BGFRS,
CDFI, FDIC or other governmental or regulatory authority having jurisdiction
over Bancorp or Bank at the earliest practicable date. Notwithstanding any other
term or provision of this Agreement, Bank and Executive further agree that no
benefits, rights or obligations shall accrue to the parties hereunder in the
absence of obtaining any such required regulatory approvals and in the event
that any such governmental or regulatory authority shall disapprove any
provision of this Agreement, then the parties hereto will use their best
efforts, acting in good faith, to amend this Agreement in a manner that will be
acceptable to the parties and to such governmental or regulatory authorities.
IN WITNESS WHEREOF, the parties have executed this Agreement in
Stockton, California, as of the date set forth above.
BANK: EXECUTIVE:
Service 1st Bank
By: /s/ Xxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx Xxxxx
----------------------------- --------------------------------
Xxxx X. Xxxxxx Xxxxxx X. Xxxxxx Xxxxx
Chairman
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