EMPLOYMENT AGREEMENT
DATE: March 11, 1997
PARTIES: CAPITAL CORP. OF THE WEST, a California Bank Holding
Company, hereinafter referred to as "Employer"; and
XXXXXX X. XXXXXX, herein after referred to as
"Employee".
RECITALS:
1. Employee is currently employed as the Chief Executive Officer
of Employer (previously known as County Bank) under a written
Employment Agreement which will expire at the close of
business on February 28, 1997.
2. The Parties desire to enter into a new Employment
Agreement ("Agreement") for the purpose of extending the
employment of Employee.
AGREEMENT:
Employer hereby employs Employee, and Employee hereby accepts
employment with Employer, upon the terms and conditions hereinafter set forth.
1. Duties.
Employee is hereby employed as the President and Chief Executive
Officer of Employer. Employee shall perform the customary duties of a Chief
Executive Officer of a California bank holding company, including but not
limited to, the supervision of Employer's business and all subsidiary
corporations and businesses owned or related to Employer and such kindred duties
as may from time to time be reasonably requested of Employee by the Board of
Directors of Employer. As used herein the term "business of Employer" shall
include the business of any of Employer's subsidiaries and related entities.
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2. Appointment to Board of Directors.
Employer hereby agrees that Employee shall remain a member of the Board
of Directors of Employer for so long as Employee is elected to a position on the
board by the shareholders of Employer, or until this Agreement has been
terminated. During the period of Employee's election to the Board of Directors,
Employee shall serve as a member of any or all committees to which he is
appointed, except the audit committee. Employee also hereby agrees to accept
appointment to other boards of directors and committees of subsidiary and
related organizations of Employer. Employee shall fulfill all of Employee's
duties as a board and committee member without additional compensation. Upon the
termination of this Agreement by either Employee or Employer, Employee agrees to
immediately resign from the Board of Directors, from all committees and from all
corporate offices of Employer and from all of Employer's subsidiaries and
related companies; further, all fringe benefits, such as insurance, shall be
terminated on the last day of service of Employee, unless otherwise mandated by
the terms of this Agreement, Employer's personnel policy, or any other benefit
policies in effect at the time of such termination.
3. Term.
This Agreement shall be effective for a period of forty-six (46)
months. It shall commence on March 1, 1997 and unless sooner terminated as
provided herein shall end on December 31, 2000 ("Term").
4. Extent of Services.
Employee shall donate his full time, attention and energies to the
business of Employer, and shall not during the Term of this Agreement be engaged
in any other business activities, except personal investments, without the prior
written consent of Employer.
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5. Regular Compensation.
In consideration for the services which Employee is to render under
this Agreement, Employer shall pay to Employee an initial base salary ("Base
Salary") of One Hundred Fifty-one Thousand Two Hundred Fifty-nine Dollars
($151,259.00) per year. On July 1, 1997, the Board of Directors agrees to
reevaluate the Base Salary, and if the earnings are in line with projected
budget figures and if the present concerns regarding several large loans in the
troubled loan portfolio of County Bank are rectified to the satisfaction of the
Board of Directors, the Base Salary shall be increased thereafter to One Hundred
Sixty-seven Thousand Dollars ($167,000.00) per year (prorated for partial
years), or it shall be changed to said figure as soon after said date as the
Board of Directors is satisfied that the troubled loan portfolio is at an
acceptable level and the earnings of the corporation are in line with projected
budget figures. The Base Salary shall be payable to Employee in equal
semi-monthly installments on the fifteenth and the last working day of each
month during the period of employment, prorated for any partial employment
period. The Base Salary shall be subject to an annual economic adjustment on the
first day of each calendar year to reflect changes in the cost of living in the
San Xxxxxxx Valley in an amount to be determined by the Board of Directors of
Employer. Employer by its Board of Directors and at its sole discretion, may
also give due consideration to the question of salary increases on each
anniversary of the effective date of this Agreement.
6. Discretionary Incentive Compensation.
Employee shall be entitled to participate in any incentive programs
which may be adopted from time to time by Employer for Employee. Amounts awarded
to Employee under any said incentive program shall be determined at the sole
discretion of Employer, including the vesting of any incentive awards.
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7. Business Expenses.
Employee shall be reimbursed for all ordinary and necessary, documented
expenses reasonably incurred by Employee in connection with his employment
associated with managing the business of Employer and other expenses which may
be authorized from time to time by the Board of Directors of Employer, including
expenses for club membership, entertainment, travel and similar items. Travel
and other expenses for attendance at conventions and banking education programs
that are approved by the Board of Directors shall also be reimbursed. Employer
will pay for or will reimburse Employee for such expenses upon presentation by
Employee from time to time of receipts evidencing such expenditures.
8. Automobile.
Employer shall provide an automobile for the use of Employee. Employer
shall pay all fuel, operating, maintenance and insurance costs associated with
such automobile. Employee shall be entitled to limited use of the automobile for
personal use, but shall primarily use it for business purposes associated with
his employment.
9. Vacation.
During each full year of employment Employee shall be entitled to
annual vacation leave at full salary at the discretion of Employee as time
allows, so long as it is reasonable and does not jeopardize his
responsibilities, of sixteen (16) days each year plus an additional four (4)
bonus days if he receives a "satisfactory" or higher rating on his Annual
Employee Performance Evaluation; provided that Employee each calendar year shall
take as a portion of his vacation leave at least ten (10) consecutive business
days.
Recognizing that Employee would like to receive additional vacation
time in the year 2,000, Employer and Employee agree to
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enter into a separate incentive program whereby certain goals and objectives are
set for Employee. If Employee meets the objectives and goals of said plan by
December 31, 1999, Employee shall be entitled to an additional 2 weeks vacation
in the year 2,000, which additional vacation time must be taken in said year.
10. Disability.
If Employee becomes permanently disabled during the Term because of
sickness, physical or mental disability, so that he is unable to perform his
full duties hereunder, Employer agrees to continue the salary (i) ninety (90)
days from commencement of the disability, (ii) until Employee is able to return
to work, (iii) until payments commence under any disability insurance policy
obtained by Employee, or (iv) when any payments commence to Employee under the
separate Salary Continuation Agreement executed between the parties, whichever
is less.
11. Insurance.
Employer shall provide to Employee, his wife and qualifying children,
during the Term at Employer's expense the same medical insurance, dental
insurance, and disability insurance coverage, if any, which may be offered to
Employer's other full-time employees under any benefit plans as may be in effect
from time to time.
It is acknowledged that Employee currently has a $400,000.00 term life
insurance policy with Sun Life Insurance Company, Employer has under its
previous employment agreement with Employee given Employee extra compensation to
cover the premiums on said policy. Under this agreement Employee's Base Salary
has been increased so that Employee may determine whether to maintain said life
insurance policy and use the increase in Base Salary to cover the premiums
thereon, or to discontinue or alter said policy and to use the additional Base
Salary for other purposes. Employer shall have no duty under this agreement to
give Employee any extra
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compensation to cover life insurance premiums or to maintain any life insurance
on Employee's life.
12. Stock Options and Bonuses.
As additional consideration for entering into this Employment Agreement
Employer hereby grants to Employee a stock option to purchase 8,000 shares of
Employer's stock at a price equal to the fair market value of such stock on the
date of execution of this agreement. The stock purchase rights under said stock
option shall vest in Employee as follows:
(1) Twenty percent (20%) upon commencement of
the Employment Term under this Agreement;
(2) Additional twenty percent (20%) on January 1, 1998;
(3) Additional twenty percent (20%) on January 1, 1999;
(4) Additional twenty percent (20%) on January 1, 2000;
(5) Additional twenty percent (20%) on January 1, 2001.
Said vesting shall occur only if Employee is still employed by Employer
under the terms of this Agreement on the date said vesting is to occur.
Employer may consider granting additional stock options and bonuses
from time to time during the term, but shall not be obligated to do so.
13. Retirement Plan.
Employer shall be entitled to participate in any retirement plans
offered to other employees of Employer such as Employee's participation in
Employer's 401K plan and participation in Employer's Stock Option Plan (ESOP).
In addition it is acknowledged that Employer and Employee have entered into a
separate "Amended and Restated Salary Continuation Agreement" dated October 30,
1996, which provides for gradual vesting of retirement
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benefits to Employee based on his continued employment with Employer. The
Parties to this agreement understand that the participation by Employee in said
salary continuation plan does not assure in any way, or guarantee, the continued
employment of Employee under this Employment Agreement.
14. Printed Material.
All written, printed, visual or audio materials used by Employee in
performing duties for Employer, other than Employee's personal notes and
diaries, are and shall remain the property of Employer. Upon termination of
employment on any basis, Employee shall return all such materials to Employer.
15. Disclosure of Information.
In the course of employment, Employee may have access to confidential
information and trade secrets relating to Employer's business. Except as
required in the course of employment by Employer, Employee shall not, without
Employer's prior written consent, directly or indirectly disclose to anyone any
confidential information relating to Employer or any financial information,
trade secrets or "know-how" which is germane to Employer's business and
operations. Employee recognizes and acknowledges that any financial information
concerning any of Employer's customers, as it may exist from to time, is
strictly confidential and is a valuable, special and unique asset of Employer's
business. Employee shall not, either before or after termination of this
Agreement, disclose to anyone said financial information, or any part thereof,
for any reason or purposes whatsoever.
16. Prohibited Activities and Investments.
During the Term of this Agreement, Employee shall not, directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, principal stockholder (i.e., ten percent or more) or corporate officer,
directly, or in any
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other individual or representative capacity, engage or participate in any
banking business competitive with that of Employer.
17. Surety Bond.
Employee agrees to furnish all information and take any other steps
necessary to enable Employer to obtain and maintain a fidelity bond conditional
on the rendering of a true account by Employee of all moneys, goods, or other
property which may come into the custody, charge, or possession of Employee
during the Term of Employee's employment. The surety company issuing such bond
and the amount of the bond must be acceptable to Employer. All premiums on the
bond are to be paid by Employer. If Employee cannot personally qualify for a
surety bond at any time during the Term of this Agreement, Employer shall have
the option to terminate this Agreement immediately and said termination shall be
deemed to be a termination for cause.
18. Moral Conduct.
Employee agrees to conduct himself at all times with due regard to
public conventions and morals and to abide by and reflect in his personal
actions all of the "core values" adopted by Employer and its subsidiaries from
time to time. Employee further agrees not to do or commit any act that will
reasonably tend to degrade him or to bring him into public hatred, contempt or
ridicule, or that will reasonably tend to shock or offend any community in which
Employer engages in business, or to prejudice Employer or the banking industry
in general.
19. Termination of Agreement.
(a) Termination for Cause.
Employer reserves the right to terminate this Agreement "for cause."
Termination for cause shall include termination because of Employee's (i)
personal dishonesty, (ii) incompetence, (iii) will-
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ful misconduct, (iv) breach of fiduciary duty involving personal profit, (v)
material breach of any of the terms of this Agreement, (vi) intentional failure
to perform assigned duties, (vii) willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order, or (viii) the willful or permanent breach by Employee of
any obligations owed to Employer pursuant to this Agreement. In addition,
Employer reserves the right to terminate this Agreement "for cause" in the event
that actions are effected by any regulatory agency having jurisdiction to remove
or suspend Employee from office, or upon the directive of any such regulatory
agency that Employer must remove Employee as its Chief Executive Officer,
regardless of whether such directive is given orally or in writing.
(b) Statutory Grounds for Termination.
Employee's employment under this Agreement shall terminate immediately
upon the occurrence of any of the following events, which events are described
in sections 2920 and 2921 of the California Labor Code:
(1) The occurrence of circumstances that make it impossible or
impractical for the business of Employer to be continued.
(2) The death of Employee.
(3) The loss of Employee of legal capacity. This does not
affect Employee's rights under Section 10 of this Agreement.
(4) The loss by Employer of legal capacity to contract.
(5) Subject to Section 10 of this Agreement, the continued
incapacity on the part of Employee under this Agreement, unless waived by
Employer.
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(c) Termination for Bankruptcy.
This Agreement may be terminated immediately be either party at the
option of either party and without prejudice to any other remedy to which either
party may be entitled at law, in equity or under this Agreement if either party:
(1) Files a petition in bankruptcy court or is adjudi-
cated a bankrupt;
(2) Institutes or suffers to be instituted against it or
him any procedure in bankruptcy court for reorganization or re-
arrangement of his financial affairs;
(3) Has a receiver of his assets or property appointed
because of insolvency; or
(4) Makes a general assignment for the benefit of credi-
tors.
(d) Automatic Termination in the Event of Acquisition of
Employer.
This Agreement shall automatically terminate upon the consummation of
any event by which substantially all of the stock and/or assets of Employer are
acquired by a person, a group of persons, a financial institution or other
entity.
At the closing of such acquisition, Employee shall receive an
acquisition payment ("Acquisition Payment") in the amount equal to six (6)
month's Base Salary at the then current rate of compensation.
In the event of any such acquisition of Employer and the consequent
automatic termination of this Agreement, no provision contained in this
Agreement should be construed to prevent Employee
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from negotiating a new employment agreement with either Employer or the acquiror
of Employer, should the parties desire to do so.
It is mutually agreed by the parties that the above-referenced
Acquisition Payment shall be received by Employee in lieu of any and all claims
and/or damages which may be sustained by Employee due to the acquisition of
Employer and the termination of Employee's employment and will be accepted by
Employee in full satisfaction of all such claims and damages.
20. Severance Pay.
Upon early termination of this Agreement (i) pursuant to Section 19(d)
of this Agreement, (ii) by Employee for any reason, (iii) by Employer "for
cause" (pursuant to Section 19(a) of this Agreement), or (iv) because of the
death, incapacity or disability of Employee, Employee shall not receive any
Severance Payment of any sort or any bonus for the calendar year in which
termination is effected.
The parties acknowledge that it would be difficult to determine the
damages which Employee would suffer if his employment is terminated by Employer
without cause or on statutory grounds. Therefore it is agreed that if this
agreement is terminated early by Employer on any basis other than those listed
in the first paragraph of this Section 20, then Employee shall be entitled to
receive a cash payment ("Severance Payment") in the amount equal to one year's
Base Salary at the then current rate of compensation. It is mutually agreed by
the parties that the payment of the cash Severance Payment set forth above shall
be received by Employee in lieu of any and all claims and/or damages which may
be sustained by Employee by reason of his early termination and will be accepted
by Employee in full satisfaction of all such claims and damages and as payment
in full for all benefits received from Employee's services. The parties
understand and agree under no circumstances would Employee be entitled to
receive both the Acquisition Payment and the Severance Payment.
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21. Notices.
Any notice to Employer required or permitted under this Agreement shall
be given in writing to Employer, either by personal service or by certified
mail, postage prepaid, addressed to the chairman of the Board of Directors of
Employer at its then principal place of business. Any such notice to Employee
shall be given in like manner and, if mailed, shall be addressed to Employee at
Employee's home address then shown on Employer's files. For the purpose of
determining compliance with any time limit in this Agreement, a notice shall be
deemed to have been duly given (a) on the date of service, if personally served
on the party to whom notice is to be given, or (b) the fifth business day after
mailing, if mailed to the party to whom notice is to be given in the manner
provided in this Section.
22. Nonassignability.
Neither this Agreement nor any right or interest hereunder shall be
assignable by Employee, his beneficiaries or legal representatives without
Employer's prior written consent; provided, however, that nothing in this
Section 22 shall preclude (i) Employee from designating a beneficiary to receive
any benefit payable hereunder upon his death, or (ii) the executors,
administrators, or other legal representatives of Employee or his estate from
assigning any rights hereunder to the person or persons entitled thereto.
23. No Attachment.
Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect.
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24. Binding Effect.
This Agreement shall be binding upon, and inure to the benefit of,
Employee and Employer and their respective permitted successors and assigns.
25. Modification and Waiver.
(a) Amendment of Agreement
This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) Waiver.
No term or condition of this Agreement shall be deemed to have been
waived nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition for the future or as to any act other than
that specifically waived. No delay in exercising any rights shall be construed
as a waiver, nor shall a waiver on one occasion operate as a waiver of such
right on any future occasion.
26. Entire Agreement.
This Agreement supersedes any and all other agreements, either oral or
in writing, between the parties hereto with respect to the employment of
Employee by Employer. This Agreement contains all of the covenants and
agreements between the parties with respect to such employment in any manner
whatsoever. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not
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embodied herein, and that no other agreement, statement or promise not contained
in this Agreement shall be valid and binding.
27. 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 without being impaired or invalidated
in any way.
28. Governing Law.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of California.
29. Injunctive Relief.
Employer and Employee acknowledge and agree that the services to be
performed under this Agreement are of a special, unique, unusual, extraordinary
and intellectual character which give them a peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in an action at law.
Employer and Employee therefore expressly agree that Employer and Employee, in
addition to any other rights or remedies which Employer and Employee may
possess, shall be entitled to injunctive and other equitable relief to prevent a
breach of this Agreement by Employee and Employer.
30. Bank Regulatory Agencies.
The obligations and rights of the parties hereunder are expressly
conditioned upon the approval or non-disapproval of (i) this Agreement and/or
(ii) Employee, in the event such approvals are required, by those banking
regulatory agencies which have jurisdiction over Employer or any of its
subsidiaries.
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31. Duplicate Originals.
This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the day and year first above written.
EMPLOYER: CAPITAL CORP OF THE WEST
By: __________________________
Xxxxx X. Xxxxxxxxx
Chairperson of the Board
EMPLOYEE: ___________________________
Xxxxxx X. Xxxxxx
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