EXHIBIT 10.11
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made this 18th day of March, 2002, between
SERVICE 1st BANK (the "Bank"), having a principal place of business at Stockton,
California, and Xxxx X. Xxxxxxxx ("Employee"), and supercedes any prior
Employment Agreement.
W I T N E S S E T H
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WHEREAS, the Bank is a California banking corporation, which
is validly existing and in good standing under the laws of the State of
California, with power to own property and carry on its business as it is now
being conducted;
WHEREAS, the Bank desires to avail itself of the skill,
knowledge and experience of Employee in order to insure the successful
management of its business;
WHEREAS, the parties hereto desire to specify the terms of the
Employee's employment by the Bank as controlling Employee's employment with the
Bank;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, it is agreed that from and after March 18, 2002 (the
"Effective Date"), the following terms and conditions shall apply to Employee's
said employment:
A. TERM OF EMPLOYMENT
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1. Term. The Bank hereby employs Employee and Employee
hereby accepts employment with the Bank for the period commencing with the
Effective Date and continuing for an undetermined time.
B. DUTIES OF EMPLOYEE
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l. Duties. Employee shall perform the duties of Senior
Vice President & SBA Department Manager, as described more fully in a job
description entitled SBA Department Manager (the "Job Description"), subject to
the powers by law vested in the Board of Directors of the Bank and in the Bank's
shareholders. The duties of Employee hereunder may be reasonably changed by the
Board of Directors of the Bank from time-to-time without resulting in a
rescission or breach of this Agreement, and, without limiting the foregoing,
Employee agrees, if requested by the Board of Directors of the Bank and subject
to the rights of the Bank's stockholders, to serve in such additional or
alternative capacities as the Bank's Directors dictate subject to a revised job
description and/or compensation plan mutually agreeable to the Bank and the
Employee. During the Term, Employee shall perform exclusively the services
herein contemplated to be performed by Employee faithfully, diligently and to
the best of Employee's ability, consistent with the highest and best standards
of the banking industry and in compliance with all applicable laws and the
Bank's Articles of Incorporation and Bylaws.
2. Conflicts of Interest. Except as permitted by the
prior written consent of the Chief Credit Officer of
the Bank, Employee shall devote sufficient time,
ability and attention, during the Term, to fully and
timely meet the specifications and standards set
forth in the Job Description. The Employee shall not
directly or indirectly render any services of a
business, commercial or professional nature, to any
other person, firm or corporation, whether for
compensation or otherwise, which are in conflict with
the Bank's interests.
C. COMPENSATION
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1. The Employee will be paid a Base Pay of $60,000.00
per annum.
2. The Employee will be paid commission according to the
following schedule:
a. SBA Guaranteed Loans: Paid monthly, included
within the paycheck for the 15th of the
month following receipt of premium from the
sale of the guaranteed portion of the loan.
The incentive pay will be the following
percentage of the Net Premium Earned,
defined as the gross premium earned in the
sale of the guaranteed portion less any
broker fees paid.
% of Net Premium
Annual Loan Volume Earned
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From $-0- to $5,000,000 25%
From $5,000,001 to $10,000,000 40%
From $10,000,001 and up 50%
If within 90 days of the final disbursement
on a SBA guaranteed loan the Bank has not
sold the guaranteed portion, the Bank will
pay a commission of 1.00% on the gross loan
amount as part of the incentive pay
compensation. If at a later date, the
guaranteed portion is sold, the Bank will
pay the net difference between the incentive
pay calculated on the amount of Net Premium
Earned, as determined by the above chart,
and the amount previously paid under the
1.00% commission option.
If for any reason, the Bank must refund the
premium, the incentive pay will not be paid
or, if already paid, will be immediately
reimbursed to the Bank out of future
incentive pay and/or base salary. If the
Business Development Officer is no longer
employed by the Bank and has no future
compensation due, then the Business
Development Officer agrees to immediately
reimburse the Bank through personal
financial resources
b. Non-SBA Guaranteed Loans: Paid monthly,
included within the paycheck for the 15th of
the following month, based on the following
volumes of Total Loan Commitments boarded
during the month and earned percentage:
Monthly Loan Volume % of Total Commitment
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$-0- to $1,000,000 0.40% of amount over $-0-
$1,000,001 to $2,000,000 0.55% of amount over $1,000,000
$2,000,001 and up 0.60% of amount over $2,000,000
Total Loan Commitments for a month is
determined by adding the Calculated
Commitment for each loan boarded. The
Calculated Commitment is determined by
multiplying the loan commitment, net of any
amount participated, by the appropriate
percentage for the following loan types:
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Loan Type % of Commitment
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All term loans 100%
All lines of credit 75%
Construction loans, not rolling into 75%
a permanent loan
Construction loans rolling into a 100%
permanent loan
Letters of Credit 0%
Transaction loans 100%(pro rate if
term is less than
one year).
Loan boardings that qualify are the initial
loan and any new loan boarded within six
months of the boarding date of the initial
loan. Loan renewals do not qualify.
c. Deposits: Paid quarterly, included in the
paycheck on the 15th of the month following
the quarter-end. The incentive pay is
based on the average collected balance and
is paid for two years at the following
percentages:
ACCOUNT TYPE 1st YEAR 2nd YEAR
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Non-interest bearing 0.50% 0.25%
Interest bearing 0.25% 0.125%
(excluding CDs)
Certificate of Deposits 0.05% .025%
Sweep Products & 0.00% 0.00%
other Inv. Products
D. EMPLOYEE BENEFITS
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1. Vacation. Employee is entitled to four (4) weeks of
paid vacation at the Base Pay in effect at the time the vacation is taken. Said
vacation should be scheduled at the convenience of the Bank in order to handle
the workload in a reasonable and timely manner.
2. Automobile. Employee will receive an automobile
allowance of $375 per month.
3. Group Medical and Life Insurance Benefits. The Bank
shall provide for Employee, medical and life insurance benefits equivalent to
the normal and customary benefits available from time to time under the
California Banker's Association Group insurance Program (or equivalent) for a
salary level equivalent to $50,000 per annum. The Bank's liability to Employee
for any breach of this Subsection shall be limited to the amount of premiums
payable by the Bank to obtain the coverage contemplated herein.
4. Use of Bank Facilities, Equipment and Supplies. The
Bank will provide, and the Employee will have access to and use of, the
facilities, equipment, and supplies of the Bank, to the extent any salaried
officer of the Bank would have in the execution of his or her employment
responsibilities without the Bank being entitled to any compensation for the use
thereof. The facilities, equipment, and supplies shall include, but not
necessarily be limited to, a shared or unshared office, telephones (including
land lines and wireless telephonic devices) facsimile machines, copier(s), and
any other equipment and supplies made available by the Bank to facilitate its
normal business activities.
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E. REIMBURSEMENT FOR BUSINESS EXPENSES
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Employee shall be entitled to reimbursement by the Bank for
any ordinary and necessary business expenses incurred by Employee in the
performance of Employee's duties and in acting for the Bank during the Term,
which types of expenditures shall be determined by the Board of Directors,
provided that:
l. Each such expenditure is of a nature qualifying it as
a proper deduction on the federal and state income tax returns of the Bank as a
business expense and not as compensation to Employee; and
2. Employee furnishes to the Bank adequate records and
other documentary evidence required by federal and state statutes and
regulations issued by the appropriate taxing authorities for the substantiation
of such expenditures as deductible business expenses of the Bank and not as
compensation to Employee.
F. TERMINATION
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1. Termination. The Bank may terminate this Agreement at
any time without further obligation or liability to Employee, by action of the
Chief Credit Officer, if Employee fails to perform or habitually neglects the
duties which he is required to perform hereunder; if Employee engages in illegal
activity which materially adversely affects the Bank's reputation in the
community or which evidences the lack of Employee's fitness or ability to
perform Employee's duties as determined by the Chief Credit Officer in good
faith; any breach of fiduciary duty, dishonesty, deliberate or repeated
disregard of the policies or procedures of the Bank as adopted by the Board of
Directors or a committee thereof or refusal or failure to act in accordance with
any direction or order of the Board of Directors or a committee thereof of the
Bank, except those in contravention of any law or regulation; gross negligence
adversely impacting the Bank; willful breach of this Agreement or any other
willful misconduct; or if Employee is found to be physically or mentally
incapable (as hereinafter defined) of performing Employee's duties for a
continuous period of ninety (90) days or more by the Chief Credit Officer in
good faith. Such termination shall not prejudice any remedy, which the Bank may
have at law, in equity, or under this Agreement. Termination pursuant to this
Subsection F.1 shall become effective immediately upon notice of termination
from the Bank. Notwithstanding the foregoing, the Employee will be compensated
in accordance with paragraph C of this Agreement for each loan transaction that
closes after the effective date of termination that was processed by the
Employee under the terms of the Job Description; provided, however, that the
Risk Analysis Presentation for the loan transaction was approved by the Chief
Credit Officer on or prior to the termination date.
For purposes of this Agreement only, physical or mental
disability shall be defined as Employee being unable to fully perform under this
Agreement for a continuous period of ninety (90) days. If there should be a
dispute between the Bank and Employee as to Employee's physical or mental
disability for purposes of this Agreement, the question shall be settled by the
opinion of an impartial reputable physician or psychiatrist agreed upon by the
parties or their representatives, or if the parties cannot agree within ten (10)
days after a request for designation of such party, then by a physician or
psychiatrist designated by the San Xxxxxxx Medical Association. The
certification of such physician or psychiatrist as to the question in dispute
shall be final and binding upon the parties hereto.
Employee reserves the right to terminate this agreement at any
time for any reason subject to a 30-day notification. Said notification shall be
in writing and delivered to the Chief Credit Officer at the address of 00 X.
0Xxx Xxxxxx, Xxxxx, XX 00000.
2. Action by Supervisory Authority. If the Bank is
closed or taken over by the California Department of Financial Institutions or
other supervisory authority, including the Federal Deposit Insurance
Corporation, such bank supervisory authority may immediately terminate this
Agreement without further liability or obligation to Employee.
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3. Merger or Corporate Dissolution. In the event of a
merger where the Bank is not the surviving corporation or a consolidation or a
transfer of all or substantially all of the assets of the Bank, or any other
corporate reorganization where there is a change in ownership of at least
twenty-five percent (25%) of the outstanding stock of the Bank, except as may
result from a transfer of shares to another corporation in exchange for at least
eighty percent (80%) control of that corporation, or in the event of the
dissolution of the Bank, this Agreement may be terminated without further
liability to Employee by the Bank or the surviving bank. Notwithstanding the
foregoing, this Section F.3. shall not be applicable in the event of the
formation of a bank holding company for the Bank wherein the shareholders of the
Bank maintain the same percentage of ownership of the bank holding company.
4. Termination Without Cause. Notwithstanding anything
to the contrary contained herein, it is agreed by the parties hereto that the
Bank may at any time elect to terminate this Agreement and Employee's employment
by the Bank for any reason by action of its Chief Credit Officer.
G. GENERAL PROVISIONS
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1. Proprietary and Confidential Knowledge. During the
Term, Employee will have access to and become acquainted with what Employee and
the Bank acknowledge to be proprietary and confidential knowledge, to wit, data
and information concerning the Bank, including its operations and business, and
the identity of customers of the Bank, including knowledge of their financial
condition, their financial needs, as well as their methods of doing business.
Employee shall not disclose any of the aforesaid proprietary and confidential
knowledge, directly or indirectly, or use them in any way, either during the
Tens or for a period of one (1) year after the termination of this Agreement,
except as required in the course of Employee's employment with the Bank.
2. Indemnification. To the extent permitted by law,
applicable statutes and the Bylaws or resolutions of the Bank in effect from
time to time, the Bank will indemnify Employee against liability or loss arising
out of Employee's actual or asserted misfeasance or non-feasance in the
performance of Employee's duties or out of any actual or asserted wrongful act
against, or by, the Bank including but not limited to judgment, fines,
settlements and expenses incurred in the defense of actions, proceedings and
appeals therefrom. The provisions of this Subsection shall apply to the estate,
executor, administrator, heirs, legatees or devisees of Employee.
3. Return of Documents. Unless otherwise agreed to in
writing by the Bank and the Employee, the Employee expressly agrees that all
manuals, documents, files, reports, studies, instruments or other materials used
and/or developed by Employee during the Term are solely the property of the
Bank, and that Employee has no right, title or interest therein. Upon
termination of this Agreement, Employee or Employee's representative shall
promptly deliver possession of all of said property to the Bank in good
condition. Notwithstanding the foregoing, the Employee from time to time may
create or modify a system or procedure to be used by the Bank and the Employee
in the execution of the Job Description. The,Employee may use such systems and
procedures materially created or modified by the Employee in employment
activities unrelated to the specific business of the Bank.
4. Notices. Any notice, request, demand or other
communication required or permitted hereunder shall be deemed to be properly
given when personally served in writing, when deposited in the United State
mail by either certified or registered mail with return receipt requested,
postage prepaid, or when communicated to a public telegraph company for
transmittal, addressed to the party at the address appearing at the end of this
Agreement. Either party may change its address by written notice in accordance
with this Subsection.
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5. California Law. This Agreement is to be governed by
and construed under the laws of the State of California.
6. Captions and Section Headings. Captions and section
headings used herein are for convenience only and are not a part of this
Agreement and shall not be used in construing it.
7. Invalid Provisions. Should any provision of this
Agreement for any reason be declared invalid, void, or unenforceable by a court
of competent jurisdiction, the validity and binding effect of any remaining
portion shall not be affected, and the remaining portions of this Agreement
shall remain in full force and effect as if this Agreement had been executed
with said provision eliminated.
8. Entire Agreement. This Agreement contains the entire
agreement of the parties. It supersedes any and all other agreements, either
oral or in writing, between the parties hereto with respect to the employment of
Employee by the Bank. Each party to this Agreement acknowledges that no
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
embodied herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding. This Agreement may not be
modified or amended by oral agreement, but only by an agreement in writing
signed by the Bank and Employee.
9. Receipt of Agreement. Each of the parties hereto
acknowledges that he has read this Agreement in its entirety and does hereby
acknowledge receipt of a fully executed copy thereof. A fully executed copy
shall be an original for all purposes, and is a duplicate original.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
Service 1st Bank Xxxx X. Xxxxxxxx
/s/ XXXXXXX XXXXXX /s/ XXXX X. XXXXXXXX
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Xxxxxxx Xxxxxx, Chief Credit Officer Xxxx X. Xxxxxxxx
00 X. 00xx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000 Xxxxx, XX 00000
Attachment- Job Description
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