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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered as of
this 28th day of January, 2000, by and between ITLA Capital Corporation (the
"Company") and its subsidiaries and affiliates, including but not limited to
Imperial Capital Bank, formerly known as Imperial Thrift and Loan Association
(Imperial) and Xxxxxx X. Xxxxxxxxxx (the "Executive").
WHEREAS, the Executive has served as the Chief Executive Officer and
Chairman of the Board of Directors of the Company since its inception and of
Imperial since July, 1992;
WHEREAS, the board of directors of the Company ("Board of Directors")
recognizes that, as is the case with publicly held corporations generally, the
possibility of a change in control of the Company and/or Imperial may exist and
that such possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of key management
personnel to the detriment of the Company, and Imperial and their respective
stockholders; and
WHEREAS, the Executive is a party to that certain employment agreement
with the Company dated October 27, 1995, under which the Executive is entitled
to certain severance benefits under certain conditions (the "Prior Employment
Agreement"), which he is willing to terminate in consideration of this Agreement
becoming effective;
WHEREAS, the Executive is a party to that certain employment agreement
with the Company dated July 23rd, 1997, which he and the Company are willing to
terminate for the mutual consideration as set forth in this Agreement becoming
effective.
WHEREAS, the Board of Directors believes it is in the best interest of
the Company and its subsidiaries to enter into this Agreement with the Executive
in order to assure continuity of management of the Company and its subsidiaries
and to reinforce and encourage the continued attention and dedication of the
Executive to the Executive's assigned duties without distraction in the face of
potentially disruptive circumstances arising from the possibility of a change in
control of the Company or Imperial, although no such change is now contemplated;
WHEREAS, the Board of Directors has approved and authorized the
execution of this Agreement with the Executive;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein, it is AGREED as follows:
1. Definition.
(a) The term "Change in Control" means the occurrence of any of the
following events with respect to the Company, or with respect to Imperial: (1)
any person (as the term is used in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") is or becomes the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act),
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directly or indirectly of securities of the Company, or Imperial representing
33.33% or more of the Company's or Imperial's outstanding securities; (2)
individuals who are members of the Board of Directors of the Company or Imperial
on the date hereof (the "Incumbent Board") cease for any reason to constitute at
least a majority thereof, provided that any person becoming a director
subsequent to the date hereof whose election was approved by a vote of at least
two-thirds of the directors comprising the Incumbent Board, or whose nomination
for election by the Company's or Imperial's stockholders was approved by the
nominating committee serving under an Incumbent Board, shall be considered a
member of the Incumbent Board; (3) a reorganization, merger, consolidation, sale
of all or substantially all of the assets of the Company or Imperial, or a
similar transaction in which the Company or Imperial is not the resulting entity
(unless the continuing ownership requirements clause (4) below are met with
respect to the resulting entity); or (4) a merger or consolidation of the
Company or Imperial with any other corporation other than a merger or
consolidation in which the voting securities of the Company or Imperial
outstanding immediately prior thereto represent at least 66.67% of the total
voting power represented by the voting securities of the Company or Imperial or
the surviving entity outstanding immediately after such merger or consolidation.
The term "Change in Control" shall not include: (1) an acquisition of securities
by an employee benefit plan of the Company or Imperial; (2) any of the above
mentioned events or occurrences involving any other subsidiary of the Company or
Imperial, although this may be amended at a later date; (3) any of the above
mentioned events or occurrences which require but do not receive the requisite
government or regulatory approval to bring the event or occurrence to fruition.
(b) The term "Date of Termination" means the date upon which the
Executive's employment with the Company or Imperial ceases, as specified in a
notice of termination pursuant to Section 8 of this Agreement.
(c) The term "Disability" means the Executive's incapacity due to
physical or mental illness to perform substantially his duties on a full-time
basis for six consecutive months.
(d) The term "Effective Date" means January 28, 2000.
(e) The term "Involuntary Termination" means the termination of the
employment of the Executive by the Company or Imperial without the Executive's
express written consent or a material diminution of or interference with the
Executive's duties, responsibilities and benefits as Chief Executive Officer of
the Company or Imperial, including (without limitation) any of the following
actions unless consented to in writing by the Executive: (1) following the
occurrence of a Change of Control a requirement that the Executive be based at a
place other than the Executive's present work location immediately prior to the
Change of Control or within 35 miles thereof, except for reasonable travel on
Company or Imperial business; (2) a material demotion of the Executive; (3) a
material reduction in the number or seniority of other Company or Imperial
personnel reporting to the Executive or a material reduction in the frequency
with which, or in the nature of the matters with respect to which, such
personnel are to report to the Executive, other than as part of a Company-wide
reduction in staff; (4) a material adverse change in the Executive's
compensation, other than as part of an overall program applied uniformly and
with equitable effect to all members of the senior management of the Company or
Imperial; (5) a
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material permanent increase in the required hours of work or the workload of the
Executive; (6) the failure of the Board of Directors to elect him as Chairman
and Chief Executive Officer of the Company or Imperial (or a successor of the
Company or Imperial) or any action by the Board of Directors (or a board of
directors of a successor of the Company or Imperial) removing him from either of
such offices; (7) death of the Executive or termination of the Executive's
employment by the Company or Imperial for Disability as provided for in and
subject to sections 7(f) and 7(c) below; or (8) other material breach of this
Agreement by the Company or Imperial not cured within 30 days after notice
thereof to the Company or Imperial by the Executive; or (9) a material increase
or decrease in the business responsibilities and duties, such that the
Executive's qualifications as utilized immediately prior to the Change of
Control are no longer consistent with the qualifications needed for the revised
position; or (10) any termination of the Executive's employment by the
Executive, the Company, Imperial or the surviving entity immediately after a
merger or consolidation (as defined above in section 1(a)) within 60 months
after a Change in Control. The term "Involuntary Termination" does not include
Termination for Cause or termination of employment due to retirement on or after
the Executive attains age 65.
(f) The terms "Termination for Cause" and "Terminated for Cause" mean
termination by the Company or Imperial of the employment of the Executive
because of (i) willful and continued failure by the Executive substantially to
perform his duties, (other than a failure resulting from physical or mental
illness) after a demand for substantial performance is delivered to the
Executive by the Board of Directors of the Company or Imperial which
specifically identifies the manner in which the Executive has not substantially
performed his duties, (ii) the Executive's willful dishonestly, willful
incompetence, willful misconduct, breach of a fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, regulation or final cease-and-desist order relating to the
Executive's employment with the Company or Imperial or otherwise interfering
with the Executive's ability to carry out the duties of his employment, or
material breach of any provision of this Agreement; provided that no act or
failure to act shall be considered "willful" unless done or omitted to be done
by the Executive in bad faith and without reasonable belief that the act or
omission was in or not opposed to the best interests of the Company or Imperial.
Any act or failure to act based upon authority pursuant to a resolution duly
adopted by the Board of Directors or upon the advice of counsel for the Company
or Imperial shall be conclusively presumed to be done or omitted to be done in
good faith and in the best interests of the Company or Imperial. The Executive's
attention to matters not directly related to the business of the Company or
Imperial shall not provide a basis for Termination for Cause if the Board of
Directors has approved the Executive's engagement in such activities. The
Executive shall not be deemed to have been Terminated for Cause unless and until
the Company or Imperial has delivered to the Executive a notice containing a
resolution adopted by not less than three-quarters of the entire membership of
the Board of Directors at a meeting called and held for the purpose, after
reasonable notice to the Executive and opportunity for him to appear with
counsel before the Board of Directors, finding that in the good faith opinion of
the Board of Directors the Executive has engaged in conduct described in this
section 1(f) and specifying the particulars in detail.
2. Term: Termination of Prior Employment Agreement. The term of this
Agreement shall be a period of 60 months commencing on the Effective Date,
subject to earlier termination
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as provided herein. Beginning on the first anniversary of the Effective Date and
on each anniversary thereafter, the term of this Agreement shall be extended for
a period of one year in addition to the then-remaining term, provided that the
Company or Imperial has not given notice to the Executive in writing at least 90
days prior to such anniversary that the term of this Agreement shall not be
extended further, and provided further that notwithstanding the delivery of any
such notice, the term of this Agreement shall be extended until the expiration
of 60 months following the date upon which a Change in Control shall have
occurred during the term of this Agreement including extensions of the term
pursuant to the first proviso of this sentence. The Executive's Prior Employment
Agreement shall terminate immediately prior to the commencement of the term of
this Agreement.
3. Employment. The Executive is employed as the Chief Executive Officer
of the Company and Imperial. As such, the Executive shall render administrative
and management services as are customarily performed by persons situated in
similar executive capacities, and shall have such other executive policy and
management powers and duties as the Board of Directors may prescribe from time
to time. The Executive shall also render services to any affiliates of the
Company or Imperial as requested by the Company or Imperial from time to time
consistent with his executive position. The Executive shall devote his best
efforts and full attention and energies to the business and affairs of the
Company and Imperial as provided here under. Notwithstanding the foregoing and
with the prior approval of the Board of Directors, which may not be unreasonably
withheld, the Executive may serve on boards of directors of nonaffiliated
companies and may devote reasonable time to fulfilling his responsibilities as a
member of such boards to the extent permissible under applicable federal and
state laws and regulations which may limit such service.
4. Cash Compensation.
(a) Salary. The Company agrees to pay the Executive during the term
of the Agreement a base salary ("Base Salary") the annualized amount of which
shall be not less than the annualized aggregate amount of the Executive's base
salary in effect at the Effective Date. The Base Salary shall be paid in
accordance with the Company's payroll practices for executives and shall be
subject to customary tax withholding. The amount of the Executive's Base Salary
may be increased by the Board of Directors from time to time in its discretion
but shall be not be decreased during the term of this Agreement. As of the
Effective Date of this Agreement, the Executive's Base Salary shall be
$397,500.00.
The Executive may voluntarily elect to contribute a portion of his Base
Salary to any (i) plan sponsored by the Company or Imperial which includes a
cash-or-deferred arrangement under Section 401(k) of the Internal Revenue Code
of 1986, as amended (the "Code"), (ii) "cafeteria plan" sponsored by the Company
or Imperial under Section 125 of the Code, or (iii) plan sponsored by the
Company or Imperial in which management may participate and which includes a
cash-or-deferred arrangement such as a nonqualified deferred compensation plan.
(b) Housing and Automobile Allowances. The Company shall pay to the
Executive a housing allowance of not less than $2,500 per month and at the
Executive's election
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an automobile allowance of not less than $1,950 per month or use of a Company
vehicle pursuant to the Company's Automobile Policy. These allowances may be
increased by the Board of Directors from time to time in its discretion but
shall be not be decreased during the term of this Agreement.
(c) Annual Incentive Plan; Bonuses. The Executive shall be entitled
to participate on terms not less favorable, but generally greater than those
applicable to any other executive officer of the Company or Imperial in such
performance-based awards and discretionary bonuses, if any, as are authorized
and declared by the Board of Directors for executive officers of the Company or
Imperial, including but not limited to the Company's or Imperial's Annual
Incentive Compensation Plan.
(d) Stock Benefit Plans. The Executive shall be entitled to be
considered for benefits under all of the stock and stock option related plans in
which the Company's or Imperial's executive officers are eligible or become
eligible to participate, including but not limited to the ITLA Capital
Corporation and/or Imperial Thrift and Loan Association 1995 Employee Stock
Incentive Plan (Stock Plan) and the Recognition and Retention Plan (RRP).
(e) Supplemental Executive Retirement Plan (SERP). The Executive
shall be entitled to participate in any Supplemental Executive Retirement Plan
(SERP) implemented by the Company or Imperial, which shall provide that
following the Change of Control an additional funding of an amount equal to 3.95
times the sum of Executive's annual Base Salary shall occur and all benefits and
RRP stock granted to the Executive under the SERP shall immediately vest, as
more particularly set forth in Section 4.4 of the Company's Supplemental
Executive Retirement Plan Effective January 1, 1997, as amended on January 28,
2000, or as amended thereafter. To the extent this SERP differs with this
Agreement, this Agreement shall control however, the distribution of RRP stock
shall be contingent upon the availability of the same stock as delineated in the
SERP.
(f) Expenses. The Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses and continuing education expenses
incurred by the Executive in performing services under this Agreement in
accordance with the policies and procedures applicable to the executive officers
of the Company or Imperial, provided that the Executive accounts for such
expenses as required under such policies and procedures. Continuing education
expenses include, but are not limited to, reasonable and continuing expenses
incurred by the Executive related to his membership in the Young Presidents'
Organization (YPO) and the Harvard Business School Alumni Association.
(g) Salary Continuation Plan (SCP). The Executive shall be entitled
to participate in any Salary Continuation Plan (SCP) implemented by the Company
or Imperial which shall provide that the Executive shall receive 75% of the
average of his three preceding years' Base Salary payable over a fifteen year
period following the Executive's termination of employment, other than a
Termination for Cause or a Voluntary Termination. In the event that the
Executive incurs a Voluntary Termination prior to attaining age 65, the benefit
payable under the SCP shall be reduced as set forth in the SCP. Upon a Change in
Control prior to termination of
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employment, the Executive shall receive a benefit under the SCP equal to 75% of
the average of his three preceding years' Base Salary for fifteen (15) years,
but payable over a ten (10) year period commencing upon the Change in Control.
No benefit shall be payable under the SCP in the event that the Executive incurs
a Termination for Cause. The compensation received by the Executive under the
SCP shall be in addition to the benefits and compensation received by the
Executive under any terms and conditions of this Agreement.
5. Benefits.
(a) Participation in Benefit Plans. The Executive shall be entitled
to participate, to the same extent as executive officers of the Company or
Imperial generally, in all plans of the Company or Imperial relating to group or
other life, accidental death and dismemberment, medical and dental, short and
long term disability, travel and accident insurance, education, pension, thrift,
profit-sharing, savings, other retirement or employee benefits or combinations
thereof, including coverage for eligible dependents as provided for in such
plans.
(b) Life Insurance. The Company shall provide to the Executive and
shall pay the premiums on a personal life insurance policy providing benefits in
an amount equal to at least four times his annual Base Salary.
(c) Memberships in Organizations and Clubs. The Executive shall be
entitled to Company paid non-equity membership in one private Club in an initial
amount not to exceed $7,500 with monthly dues of $400, or as may be increased or
decreased by the Club. In addition, the Company shall pay all of Executive's
reasonable expenses and costs associated with his membership in the Young
Presidents Organization, or after attaining age forty-nine (49) the World's
President Organization, and the Harvard Business School Alumni Association. The
Executive shall also be entitled to participate in a Company sponsored equity
club membership. This membership shall have an equity ownership value of up to
$140,000 plus annual dues, and may be chosen solely at the discretion of the
Executive. Any and all rights to this equity club membership shall immediately
vest in the interest of the Executive following Change of Control, upon the
Executive's retirement, or after the Executive attains the age of 65.
(d) Other Fringe Benefits. The Executive shall be eligible to
participate in, and receive benefits under, any other fringe benefit plans or
perquisites which are or may become generally available to the Company's or
Imperial's executive officers, including but not limited to supplemental
retirement, incentive compensation, supplemental medical or life insurance
plans, club dues, physical examinations, financial planning and tax preparation
services. Eligible dependents of the Executive shall be participants in such
plans and perquisites to the same extent as eligible dependents of the Company's
or Imperial's executive officers generally. The Executive shall also be entitled
to receive a one time payment of up to $25,000, plus imputed taxes, for the
Executive's personal estate planning, and shall be entitled to receive up to
$6,500 per annum, plus imputed taxes, for the maintenance of the Executive's
personal estate and tax planning.
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6. Vacations; Leave. The Executive shall be entitled to annual paid
vacation in accordance with the policies established by the Board of Directors
for executive officers, in no event less than five weeks per year, and to
voluntary leaves of absence, with or without pay, from time to time at such
times and upon such conditions as the Board of Directors may determine in its
discretion.
7. Termination of Employment.
(a) Involuntary Termination. In the event of the Involuntary
Termination of the Executive by the Company or Imperial (or both), the Company
or Imperial shall pay to the Executive, within 25 business days of the Date of
Termination of employment;
(i) in a lump sum an amount equal to the product of the
amount of cash bonus and other cash incentive compensation paid or
payable to the Executive for the most recently completed fiscal year
of the Company multiplied by a fraction with a numerator equal to the
number of days in the fiscal year elapsed through the Date of
Termination and a denominator of 365; and
(ii) during the remaining term of the Agreement, or if a
Change of Control has occurred, for the 60 months following the Date
of Termination, pay to the Executive monthly one-twelfth of his Base
Salary at the highest annual rate in effect during the three years
prior to the Date of Termination and one-twelfth of the average
annual amount of cash bonus and cash incentive compensation of the
Executive, based on the average of the amounts of such compensation
earned by the Executive for the two full fiscal years preceding the
Date of Termination; or, if the Executive elects, shall pay to him
the amount of all payments under this section 7(a)(ii) in a lump sum;
and
(iii) during the 60 months following the Date of
Termination, except as provided in section 7(g) below, maintain
substantially the same benefits described in section 5 of this
Agreement for the benefit of the Executive and his eligible
dependents and beneficiaries who would have been eligible for such
benefits if the Executive had not suffered Involuntary Termination
and on terms substantially as favorable to the Executive including
amounts of coverage and deductibles and other costs to him in effect
immediately prior to such Involuntary Termination or maintain the
same benefits described in section 5 for the benefit of the Executive
and his eligible dependents, at the same cost to the Executive, as he
would have enjoyed if he had remained employed by the Company or
Imperial; or at the election of the Executive (or, notwithstanding
the election of the Executive at the election of the Company or
Imperial, if coverage under the Company's or Imperial's group plan is
not available to the Executive and his eligible dependents and
beneficiaries) cash in an amount equal to the premium cost being paid
by the Company or Imperial with respect to the Executive for such
benefits immediately prior to the Date of Termination); and
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(iv) Retain Executive as a consultant for a period of 18
months following the termination of Executive's employment following
a Change of Control. Executive shall be paid in addition to any an
all other compensation and benefits, including payments under the
SCP, a monthly consulting fee equal to 75% of the monthly Base Salary
of the Executive at the time of termination. In addition, during the
term of the consulting engagement the Company or Imperial will
provide office space and secretarial support of the same type as it
provided to the Executive Officer during his employment; and
(v) transfer title of the Company or Imperial owned or
leased vehicle currently being utilized by the Executive to the
Executive, free and clear. All costs of such transfer such as lease
buy-out, registration fees and sales taxes to be borne by Company or
Imperial; and
(vi) notwithstanding anything to the contrary, all of
Executive's outstanding stock options and restricted stock awards,
including but not limited to Stock Plan options and RRP stock held in
the SERP, shall immediately vest upon the Involuntary Termination of
the Executive.
(b) Change in Control. In the event that any payments or benefits
provided or to be provided to the Executive pursuant to this Agreement in
combination with payments or benefits, if any, from other plans or arrangements
maintained by the Company or Imperial or any of its affiliates, constitute
"excess parachute payments" under Section 280G of the Internal Revenue Code of
1986, as amended (the "Code") that are subject to excise tax under section 4999
of the Code, the Company or Imperial shall pay to the Executive in cash an
additional amount equal to the amount of the Gross Up Payment (as hereinafter
defined). The "Gross Up Payment" shall be the amount needed to insure that the
amount of such payments and the value of such benefits received by the Executive
(net of such excise tax and any federal, state and local tax on the Company's or
Imperial's payment to him attributable to such excise tax) equals the amount of
such payments and value of such benefits as he would receive in the absence of
such excise tax and any federal, state and local tax on the Company's or
Imperial's payment to him attributable to such excise tax. The Company or
Imperial shall pay the Gross Up Payment within 25 business days after the Date
of Termination. For purposes of determine the amount of the Gross Up Payment,
the value of any non-cash benefits and deferred payments or benefits shall be
determined by the Company's independent auditors in accordance with the
principles of Section 280G of the Code. In the event that, after the Gross Up
Payment is made, the amount of the excise tax is determined to be less than the
amount calculated in the determination of the actual Gross Up Payment made by
the Company, the Employee shall repay to the Company or Imperial, at the time
that such reduction in the amount of excise tax is finally determined, the
portion of the Gross Up Payment attributable to such reduction, plus interest on
the amount of such repayment at the applicable federal rate under Section 1274
of the Code from the date of the Gross Up Payment to the date of the repayment.
The amount of the reduction of the Gross Up Payment shall reflect any subsequent
reduction in excise taxes resulting from such repayment. In the event that,
after the Gross Up Payment is made, the amount of the excise tax is determined
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exceed the amount anticipated at the time the Gross Up Payment was made, the
Company or Imperial shall pay to the Employee, in immediately available funds,
at the time that such additional amount of excise tax is finally determined, an
additional payment ("Additional Gross Up Payment") equal to such additional
amount of excise tax and any federal, state and local taxes thereon, plus all
interest and penalties, if any, owed by the Employee with respect to such
additional amount of excise and other tax. The Employee shall have the right to
challenge any excise tax assessment against him as to which the Employee is
entitled to (or would be entitled if such assessment is finally determined to be
proper) a Gross Up Payment or Additional Gross Up Payment, provided that all
costs and expenses incurred in such a challenge shall be borne by the Company or
Imperial and the Company or Imperial shall indemnify the Employee and hold him
harmless, on an after-tax basis, from any excise or other tax (including
interest and penalties with respect thereto) imposed as a result of such payment
of costs and expenses by the Company or Imperial.
(c) Termination Due to Disability. In the event that the Company or
Imperial desires to terminate the employment of the Executive due to Disability,
it shall send him a notice as provided in Section 8 stating that it has
determined that he has a Disability as defined in section 1(c) of this
Agreement. If, within 30 days after receiving such a notice, the Executive does
not return to the performance of his duties on a full-time basis, his employment
shall be terminated on the 30th day after such receipt and such day shall be the
Termination date, provided that if the Executive does not concur that a
Disability has occurred, a licensed medical doctor, selected jointly by the
Company and the Executive, shall determine the existence of a Disability. In the
event that the Company and the Executive cannot agree on the selection of such a
doctor, each shall select a doctor, and the two doctors shall select a third
doctor, and the three doctors shall determine whether a Disability exists.
(d) Termination for Cause. In the event of Termination for Cause, the
Company or Imperial shall have no further obligation to the Executive under this
Agreement after the Date of Termination, subject to any benefit continuation
requirement under applicable law.
(e) Voluntary Termination. The Executive may terminate his employment
voluntarily at any time by a notice pursuant to Section 8 of this Agreement. In
the event that the Executive voluntarily terminates his employment other than by
reason of any of the actions that constitute Involuntary Termination under
Section 1(e) of this Agreement or in connection with or within 60 months after a
Change in Control, the Company or Imperial shall be obligated to the Executive
for the amount of his Base Salary and benefits only through the Date of
Termination, at the time such payments are due, and the SCP benefits set forth
in Section 4(g) of this Agreement, and the Company or Imperial shall have no
further obligation to the Executive under this Agreement, subject to any
benefits continuation requirement under applicable law.
(f) Death. In the event of the death of the Executive while employed
under this Agreement and prior to any termination of employment, the Company or
Imperial shall pay to the Executive's estate, or such person as the Executive
may have previously designated in writing, the same payments and benefits as the
Executive would have been entitled to under
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section 7 (excluding the amounts which would have been payable under section
7(a)(iv)) if he had suffered Involuntary Termination, and the amount of any
bonus or incentive compensation for the fiscal year in which the Executive died
if he had remained employed, the amounts of which shall be pro-rated in
accordance with the portion of the fiscal year prior to his death; provided that
such amounts shall be payable when and as ordinarily payable under the
applicable plans.
(g) No Mitigation Except As To Health Benefits. The Executive shall
be under no obligation to mitigate the amount of payments or benefits to which
he is entitled under this section 7 by seeking employment or otherwise, provided
that to the extent, if any, that the Executive and his eligible dependents under
the Company's or Imperial's medical, dental and short- and long-term disability
plans become entitled to substantially the same coverage at substantially the
same cost (if any) to the Executive as applies under this section 7, then the
Company's or Imperial's obligation to provide such benefits shall be reduced
accordingly. In the event that the Executive becomes entitled to such benefits
from another employer during the period in which the Company or Imperial
provides benefits under this section 7, the Executive shall notify the Company
or Imperial in writing within 30 days, and shall notify the Company or Imperial
of such changes as may occur in such benefits from time to time in each case
within 30 days, in such details as the Company or Imperial may reasonably
request.
(h) Forfeiture. Notwithstanding any other provisions of this
Agreement, the Executive shall forfeit any right to receive payments or benefits
under this section 7 following any breach of Section 9 or Section 10 of this
Agreement.
8. Notice of Termination. In the event that the Company or Imperial
desires to terminate the employment of the Executive during the term of this
Agreement, the Company or Imperial shall deliver to the Executive a written
notice of termination, stating whether such termination constitutes Termination
for Cause or Involuntary Termination, setting forth in reasonable detail the
facts and circumstances that are the basis for the termination, and specifying
the date upon which employment shall terminate, which date shall be at least 30
days after the date upon which the notice is delivered, except in the case of
Termination for Cause. In the event that the Executive determines in good faith
that he has experienced an Involuntary Termination of his employment, he shall
send a written notice to the Company or Imperial stating the circumstances that
constitute such Involuntary Termination and the date upon which his employment
shall have ceased due to such Involuntary Termination. In the event that the
Executive desires to terminate his employment with the Company or Imperial, he
shall deliver a written notice to the Company or Imperial, stating the date upon
which employment shall terminate, which, except in the case of termination of
employment in connection with or within 60 months after a Change in Control,
shall be at least 90 days after the date upon which the notice is delivered,
unless the parties agree to a date sooner.
9. Confidentiality, Noncompete and Nonsolicitation Agreement.
(a) The Executive acknowledges that in the course of his employment
by the Company or Imperial, he will have access to and become informed of
confidential and secret
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information which is a competitive asset of the Company or Imperial
("Confidential Information"), including, without limitation, (i) the terms of
any agreement between the Company or Imperial and any employee, customer or
supplier, (ii) pricing strategy, (iii) merchandising and marketing methods, (iv)
product development ideas and strategies, (v) personnel training and development
programs, (vi) financial results, (vii) strategic plans and demographic
analyses, (viii) proprietary computer and systems software, and (ix) any
nonpublic information concerning the Company or Imperial, its employees,
suppliers or customers. The Executive agrees that he will keep all Confidential
Information in strict confidence and will not intentionally make known, divulge,
reveal, furnish, make available, or use any Confidential Information that could
materially affect the Company's or Imperial's operations, profitability or
reputation (except in the course of his regular authorized duties on behalf of
the Company or Imperial). The Executive may disclose information as required by
law (after giving the Company or Imperial notice and an opportunity to contest
such requirement). The Executive's obligations under this Section 9 are in
addition to, and not in limitation of or preemption of, all other obligations of
confidentiality which the Executive may have to the Company or Imperial under
general legal or equitable principles.
(b) Except in the ordinary course of the Company's or Imperial's
business, the Executive has not made, nor shall at any time following the date
of this Agreement, make or cause to be made, any copies, pictures, duplicates,
facsimiles or other reproductions or recordings or any abstracts or summaries
including or reflecting Confidential Information. All such documents and other
property furnished to the Executive by the Company or Imperial or otherwise
acquired or developed by the Company or Imperial shall at all times be the
property of the Company or Imperial. Upon termination of the Executive's
employment by the Company or Imperial, the Executive will return to the Company
or Imperial any such documents or other property of the Company or Imperial
which are in the possession, custody or control o the Executive.
(c) Without the prior written consent of the Company or Imperial
(which may not be unreasonably withheld), except in the ordinary course of the
Company's or Imperial's business, the Executive shall not at any time during the
term of this agreement or during the period payments are being made by the
Company or Imperial resulting from an Involuntary Termination, (the "Restricted
Period") engage in any business or division of a business of a kind in whole or
in part similar to that heretofore engaged in by the Company or Imperial or any
of its subsidiaries ("Restricted Business"), or disclose in any manner to any
person, firm, partnership, association, trust, venture, corporation or business
organization or enterprise engaged in the Restricted Business, any Confidential
Information.
(d) During the Restricted Period, the Executive shall not engage in
or participate in the Restricted Business of the Company or Imperial, directly
or indirectly, as a partner, shareholder, officer, director, employee,
consultant, independent contractor, agent or otherwise, within California
without prior written consent of the Company or Imperial, other than by working
for the Company or Imperial, or its successors or assigns.
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(e) In the event of that the Executive's employment with the Company
or Imperial terminates for any reason, the Executive agrees that during the
Restricted Period, he will not in any capacity, on his own behalf or on behalf
of any other firm, person or entity, undertake or assist in the solicitation of
any employee to terminate his or her employment with the Company or Imperial.
10. Post-termination Assistance. The Executive agrees that after his
employment with the Company or Imperial has terminated for any reason, he will
provide, upon reasonable notice, such information and assistance to the Company
or Imperial as may reasonably be requested by the Company or Imperial in
connection with any litigation in which it or any of its affiliates is or may
become a party; provided that the Company or Imperial agrees to reimburse the
Executive for any reasonably related expenses, including travel expenses.
11. Arbitration. Any dispute between the Executive and the Company or
Imperial under this Agreement shall be determined in accordance with the
procedures established in this section and the Federal Arbitration Act. The
dispute will be determined by arbitration in accordance with the following
procedures:
(a) Arbitration may be initiated by providing the other party with a
written demand to arbitrate.
(b) Within 21 calendar days of receipt of a written demand to
arbitrate, the parties shall select an arbitrator to hear the dispute. In the
event that the parties are unable to agree upon an arbitrator, either party may,
within 30 calendar days of the written demand for arbitration, petition the
presiding judge of the local state trial court having jurisdiction for an
appointment of a retired judge to serve as arbitrator.
(c) The arbitrator will hold a hearing at which the parties to the
dispute may submit evidence, including examining witnesses. The arbitrator may
issue subpoenas to compel the testimony of third parties and the production of
documents. Testimony shall be taken under oath and the parties may be
represented by legal counsel.
(d) The arbitrator shall issue a written decision within 21 calendar
days of the conclusion of the hearing. The decision shall be final and binding
upon the parties and may be entered in any court having jurisdiction.
(e) The Company and Imperial shall bear the direct costs of the
arbitration proceedings (arbitration fees, transcripts expenses, etc.), but each
party shall otherwise bear its own expenses.
12. Attorneys Fees. The Company and Imperial shall pay all legal fees
and related expenses (including the cost of experts, evidence and counsel)
incurred by the Executive as a result of (i) the Executive's contest or
disputing any termination of employment, or (ii) the Executive's seeking to
obtain or enforce any right or benefit provided by this Agreement or by any
other plan or arrangement maintained by the Company or Imperial (or its
successors) under
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which the Executive is or may be entitled to receive benefits; provided that the
Company's or Imperial's obligation to pay such fees and expenses is subject to
the Executive's prevailing with respect to the matters in dispute in any action
initiated by the Executive or the Executive's having been determined to have
acted reasonably and in good faith with respect to any action initiated by the
Company or Imperial.
13. No Assignments.
(a) This Agreement is personal to each of the parties hereto, and
neither party may assign or delegate any of its rights or obligations hereunder
without first obtaining the written consent of the other party; provided that
the Company or Imperial shall require any successor or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) by an assumption
agreement in form and substance satisfactory to the Executive, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company or Imperial would be required to perform it if no such
succession or assignment had taken place. Failure of the Company or Imperial to
obtain such an assumption agreement prior to the effectiveness of any such
succession or assignment shall be a breach of this Agreement and shall entitle
the Executive to compensation and benefits from the Company or Imperial in the
same amount and on the same terms as the compensation pursuant to Section 7
hereof. For purposes of implementing the provision of this Section 13, the date
on which any such succession becomes effective shall be deemed the Date of
Termination.
(b) This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by the Executive's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Employee should die while any amounts would still
be payable to the Employee hereunder if the Employee had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Employee's devisee, legatee or other designee
or if there is no such designee, to the Employee's estate.
14. Delivery of Notice. For the purposes of this Agreement, notices and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or sent by
certified mail, return receipt requested, postage prepaid, to the Company or
Imperial at its home office, to the attention of the Board of Directors with a
copy to the Secretary of the Company, or if to the Executive, to such home or
other address as the Executive has most recently provided in writing to the
Company.
15. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties.
16. Headings. The heading used in this Agreement are included solely for
convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
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17. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability or any provision shall not
affect the validity or enforceability of the other provisions hereof.
18. Governing Law. This Agreement shall be governed by the laws of the
United States to the extent applicable and otherwise by the laws of the Sate of
California.
19. Withholding of Taxes. The Company or Imperial may withhold from any
amounts payable under this Agreement all federal, state, city, or other taxes as
the Company or Imperial is required to withhold pursuant to any law or
governmental regulation or ruling.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE
ENFORCED BY THE PARTIES.
ITLA CAPITAL CORPORATION EXECUTIVE
and IMPERIAL CAPITAL BANK
----------------------------------- ----------------------------
By: Xxxxxxx Xxxxxxxx By: Xxxxxx X. Xxxxxxxxxx
Its: Member of the Board of Directors Executive
Chairman of the Compensation Committee
ITLA CAPITAL CORPORATION
and IMPERIAL CAPITAL BANK
-----------------------------------
By: Hirotaka Oribe
Its: Member of the Board of Directors
and the Compensation Committee
ITLA CAPITAL CORPORATION
and IMPERIAL CAPITAL BANK
-----------------------------------
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By: Xxxxxxx Xxxxx
Its: Managing Director and
Chief Financial Officer
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