1
EXHIBIT 10.7
DEFERRED COMPENSATION LOAN AGREEMENT
This Agreement is entered into between Hawthorne Financial Corporation
(the "Company") and Xxxxx Xxxxxxx ("Executive") as of July 12, 2000.
RECITALS
A. Executive is currently employed as the Company's Executive Vice
President and Chief Financial Officer.
B. Prior to her employment with the Company, Executive was a participant
in a deferred compensation plan at Imperial Bank ("Imperial").
C. As a result of Executive's resignation from Imperial, Executive (1)
was required to recognize $417,705.64 in deferred compensation and (2) lost the
opportunity to receive a corporate matching contribution of $40,832.65 from
Imperial.
D. As a material inducement to Executive to become employed by the
Company, the Company agreed to reimburse Executive for additional income and
employment tax liabilities she would recognize as a result of the accelerated
deferred compensation and to pay Executive the amount of the matching
contribution which she did not receive, provided that Executive continues to be
employed by the Company.
E. The Company proposes to loan Executive the amount necessary to cover
the lost matching contribution and Executive's state and federal income tax
liabilities with respect to the early recognition of deferred compensation and
the matching contribution.
F. Executive, together with her spouse, is a resident of the state of
California and is currently subject to taxation at the top marginal rates for
California and federal income tax purposes.
NOW, THEREFORE, the parties agree as follows:
1. Loan for Lost Matching Contribution and Tax Liabilities. The Company
shall make a loan (the "Loan") to Executive in the principal amount of
$227,627.43, with interest at the "applicable Federal rate" (as defined in
Section 1274(d) of the Internal Revenue Code) compounded semiannually, to cover
Executive's lost matching contribution from Imperial and Executive's state and
federal tax liabilities with respect to the early recognition of deferred
compensation and the matching contribution, on the terms and conditions set
forth in this Agreement.
2. Maturity of Loan. The remaining balance of the Loan, principal and
interest, shall become immediately due and payable on the earliest of (a) the
date Executive resigns her employment with the Company, (b) the date Executive's
employment is terminated for "cause" as defined herein, or (c) the third
anniversary of the date hereof. The Company shall be deemed to have terminated
the employment of Executive "for cause" if, but only if, such termination (x)
shall result from (i) Executive's continued and
1
2
willful failure or refusal to substantially perform her duties in accordance
with the terms of the Agreement, (ii) any act or omission by Executive
constituting gross negligence or willful misconduct that is materially injurious
to the Company, or (iii) Executive's commission of a felony or a serious
misdemeanor or any act or omission involving dishonesty, disloyalty or fraud
with respect to the Company, its customers or suppliers and (y) shall have been
approved by 66.66% of the Board of Directors of the Company. No termination
shall be considered to result from Executive's continued and willful failure or
refusal to substantially perform her duties in accordance with the terms of the
Agreement, unless Executive first shall have received written notice from the
Company specifying the acts or omissions alleged to constitute such failure or
refusal and such failure or refusal continues after Executive shall have had
reasonable opportunity to correct the same.
3. Loan Forgiveness
a. One-third (1/3) of the original principal amount of the Loan and all
interest then accrued on the Loan shall be forgiven and cancelled, automatically
and without action on the part of the Company or its Board of Directors, on each
of April 3, 2001, April 3, 2002 and April 3, 2003, provided that Executive
remains employed by the Company through that date.
b. The full remaining balance of the Loan, principal and interest,
shall, automatically and without action on the part of the Company or its Board
of Directors, be forgiven and cancelled upon the occurrence of any of the
following events:
i. Company's termination of Executive for any reason other than
for "cause" as defined herein, or
ii. Executive's death or disability. The term "disability" shall
mean a medically determinable physical or mental incapacity of Executive
rendering her incapable of reporting to work or unable to perform the
essential functions of her job for a period expected to continue for at
least twelve (12) consecutive months or result in death, as established
to the reasonable satisfaction of the Company's Board of Directors.
4. Tax Gross-Up Payment.
a. For each year that all or a portion of the Loan is forgiven or an
additional payment is made under this subsection 4a, the Company shall pay to
Executive an additional payment (a "Gross-Up Payment") in an amount equal to the
federal and state income and employment taxes due as a result of such
forgiveness and cancellation. Each Gross-Up Payment shall be made in two
installments. The first installment shall be in the amount of federal and state
income and employment taxes required to be withheld from Executive at the time
of the Loan forgiveness and/or Gross-Up Payment, and shall be paid to the
applicable withholding tax collection agencies within the time periods
prescribed by law. The second installment shall be paid to Executive on or
before the later of (i) April 1 of the calendar year following the calendar year
in which the applicable forgiveness or payment occurs or (ii) thirty (30) days
following the date
2
3
on which the tax return information for such calendar year is provided to the
Company as set forth in subsection c below. The second installment for the last
year in which a Gross-Up Payment is made with respect to Loan forgiveness shall
be adjusted to take into account the future tax effects of such Gross-Up
Payment, and no Gross-Up Payment shall be made for any subsequent year.
b. The Company shall have the right to deduct or otherwise effect
withholding from the Gross-Up Payment, or from any other compensation payable to
Executive, of any income or employment tax or other amount required by federal
or state tax laws to be withheld with respect to forgiveness of the Loan or the
making of the Gross-Up Payment.
c. The amount of the state and federal income taxes to be included in
the Gross-Up Payment shall be calculated by Executive's tax return preparer for
each of the years in question, subject to review and approval by the Company.
The Company shall provide to Executive and her tax return preparer a pro forma
Form W-2 for each such year indicating what executive's income and withholding
amounts would have been if no Loan forgiveness income or Gross-Up Payment income
had been reported on Form W-2 for such year. Executive shall provide the Company
a copy of each income tax return on which any Loan forgiveness income, Gross-Up
Payment income and/or state income tax deduction attributable to Loan
forgiveness or Gross-Up Payment is reflected. Additionally, Executive shall
provide the Company her tax return preparer's written calculation of what her
tax liability would be on each such income tax return if no Loan forgiveness
income, Gross-Up Payment income or state income tax deduction attributable to
Loan forgiveness or Gross-Up Payment were reflected. For each year, the income
tax portion of the Gross-Up Payment shall be the difference between the amounts
calculated under the two preceding sentences. The amount of employment taxes
included in the Gross-Up Payment shall be calculated as the Medicare tax rate
(currently 1.45%) multiplied by the amount of any Loan forgiveness income and
Gross-Up Payment income. If, as a result of Executive being audited or filing an
amended tax return, Executive's state or federal income tax liability for any
year covered by this provision is altered, Executive shall notify the Company of
the same and shall have her tax return preparer recalculate the Gross-Up Payment
for such year. If any such calculation indicates that the Company previously
made an excess Gross-Up Payment, Executive shall promptly repay to the Company
the amount of such excess, together with interest at the rate then applicable to
refunds from such taxing authority.
5. At Will Employment. Nothing herein shall be deemed to waive the
Company's policy that Executive's employment is AT WILL and can be terminated at
the option of either the Company or Executive in their sole and absolute
discretion, for any or no reason whatsoever, with or without cause, and no
representations, warranties or assurances have been made concerning the length
of such employment by the Company.
3
4
6. General.
a. Assignment.
i. This Agreement is personal to Executive and without the prior
written consent of the Company shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by
Executive's legal representatives.
ii. This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
iii. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no
such succession had taken place.
b. Headings. The subject headings of the paragraphs and subparagraphs of
this Agreement are included for purposes of convenience only, and shall not
affect the construction or interpretation of any of its provisions.
c. Severability. It is agreed that if any term, covenant, provision,
paragraph or condition of this Agreement shall be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability shall not
invalidate the whole Agreement, but it shall be construed as if it did not
contain the invalid, illegal or unenforceable part, and the rights and
obligations of the parties shall be construed and enforced accordingly.
d. Entire Agreement. The parties hereto agree that this Agreement
supersedes all existing agreements between the Company and Executive relating to
the subject matter hereof, whether oral, written, expressed or implied, and
contains the entire understanding and agreement between the parties on such
subject.
e. Amendment and Waiver. This Agreement may be amended, modified or
supplemented only by a writing executed by each of the parties. Either party may
in writing waive any provision of this Agreement to the extent such provision is
for the benefit of the waiving party. No waiver by either party of a breach of
any provision of this Agreement shall be construed as a waiver of any subsequent
or different breach, and no forbearance by a party to seek a remedy for
noncompliance or breach by the other party shall be construed as a waiver of any
right or remedy with respect to such noncompliance or breach.
f. Choice of Law. This Agreement and the performance hereunder shall be
construed in accordance with and under and pursuant to the internal substantive
laws of the State of California applicable to agreements fully executed and
performed entirely in such state.
4
5
g. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed facsimile if sent during normal
business hours of the recipient, if not, then on the next business day, (c)
three (3) days after having been sent by first class mail, return receipt
requested, postage prepaid, (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written or oral
verification of receipt, or (e) upon confirmed delivery by electronic mail.
Until changed upon giving notice as provided herein, notices shall be sent to:
If to the Company:
Hawthorne Savings, F.S.B.
0000 Xxxxxxxxx Xxxxxx
Xx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxx, Chief Executive Officer
Fax: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxxxxxxxx.xxx
If to Executive:
Xxxxx Xxxxxxx
0000 Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
h. Attorneys' Fees. In the event of any dispute regarding the
enforcement or interpretation of this Agreement, the party prevailing in such
dispute shall be entitled to recover from the other party hereto all costs of
such dispute, including reasonable attorneys' fees.
IN WITNESS WHEREOF, Executive and, pursuant to the authorization from
its Board of Directors, the Company have executed this Agreement as of the day
and year first above written.
EXECUTIVE HAWTHORNE FINANCIAL CORPORATION
By:
------------------------ -------------------------------------
XXXXX XXXXXXX Name and Title:
5
