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EXHIBIT 10.11
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement is made this 3rd day of
August, 1998, between First Coastal Bank, N.A. as successor to American
Independent Bank, N.A. (hereinafter the "Bank") and Xxxxxxx X. Xxxxxx
(hereinafter the "Executive").
WITNESSETH
WHEREAS, American Independent Bank, N.A. has entered into an Employment
Agreement with Executive dated as of October 18, 1996; and
WHEREAS, First Coastal Bank, N.A. has merged with and acquired American
Independent Bank, N.A. (the "Merger"); and
WHEREAS, as a condition to the Merger, Bank has agreed to make various
changes in the Employment Agreement with Executive;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, it is agreed that from and after the effective date of
the Merger between American Independent Bank, N.A. and First Coastal Bank, N.A.,
the Employment Agreement with Executive shall remain in full force and effect
except as set forth below:
1. The Term, as set forth in paragraph A.1.(a), shall begin with the
Effective Date of the Merger and shall continue for three (3) years thereafter.
2. Paragraph A.1.(b) shall be deleted in its entirety.
3. The first sentence of paragraph B.1. is amended to read as follows:
"DUTIES. The Executive shall perform the duties of the Vice Chairman
of the Board and Executive Vice President of the Bank, subject to the
powers by law vested in the Board of Directors of the Bank and in the
Bank's shareholders."
4. Paragraph C.3. is deleted in its entirety. However, should Bank adopt
a bonus program for executive officers, Executive shall be entitled to
participate therein fully, in accordance with the terms of such bonus plan.
5. Paragraph D is amended by adding a new sub-paragraph 5 following
subparagraph 4, which new sub-paragraph shall read as follows:
"5. SALARY CONTINUATION. Commencing with the later of Executive's
sixty-fifth (65th) birthday, or Executive's retirement from the Bank,
and continuing for 120 months, Bank shall pay to Executive, or his
estate or beneficiary as designated, as
EXHIBIT "D"
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salary continuation, an amount equal to fifty percent (50%) of
Executive's base salary in effect on March 31, 1998."
6. Paragraph 7.4.(b) is amended by deleting the phrase "plus twelve (12)
months' salary" where it appears therein and inserted in lieu thereof the phrase
"plus the monthly salary of Executive, payable in one lump sum on the date of
termination for the remainder of the thirty-six (36) months that originally
constituted the amended Term".
Except as amended hereby, the Employment Agreement between Xxxxxxx X.
Xxxxxx and American Independent Bank, N.A., dated October 18, 1996, shall remain
in full force and effect except that the duties of American Independent Bank,
N.A. thereunder shall be undertaken and assumed by First Coastal Bank, N.A.
IN WITNESS WHEREOF, the First Amendment has been executed as of the date
first hereinabove written.
EXECUTIVE
/s/ XXXXXXX X. XXXXXX
----------------------------------------
Xxxxxxx X. Xxxxxx
FIRST COASTAL BANK, N.A.
as successor to American Independent
Bank, N.A.
By: /s/ XXX X. XXXXXXXX
-------------------------------------
Xxx X. Xxxxxxxx
Chairman and Chief Executive Officer
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EMPLOYMENT AGREEMENT
XXXXXXX X. XXXXXX
OCTOBER 1996
THIS AGREEMENT (hereinafter the "Agreement") is made on this 18th day of
October, 1996 (hereinafter the "Agreement Date") between AMERICAN INDEPENDENT
BANK, N.A. (hereinafter the "Bank") and XXXXXXX X. XXXXXX (hereinafter the
"Executive").
WITNESSETH
WHEREAS, the Bank desires to avail itself of the skill, knowledge and
experience of the Executive in order to insure the successful management of its
business; and
WHEREAS, the Parties hereto desire to specify the terms of the
Executive's employment by the Bank as controlling the Executive's employment
with the Bank;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, it is agreed that from February 1, 1997, the following
terms and conditions shall apply to the Executive's said employment:
A. TERM OF EMPLOYMENT
1. (a) TERM. The Bank hereby employs the Executive and the Executive
hereby accepts employment with the Bank for the period of five (5) years (the
"Term") commencing on February 1, 1997 (the "Effective Date"), and ending
February 1, 2002, subject, however, to prior termination of this Agreement as
hereinafter provided. Where used herein, the "Term" shall refer to the entire
period of employment of the Executive by the Bank hereunder commencing with the
Effective Date, whether for the period provided above, or whether terminated
earlier as hereinafter provided.
(b) Subject to the notice provision set forth in this paragraph,
the Term of this Agreement shall be automatically extended for one (1)
additional year on September 30 of each calendar year. The Term shall not be
automatically extended as provided in this paragraph if either party shall give
written notice to the other, on or before September 30 of each year that the
Agreement shall not be automatically renewed on the next February 1. In the
event either party shall give the other written notice as provided in this
paragraph, the Term of this Agreement shall thereafter terminate on the next
following agreement termination date.
(c) If the Bank should form a holding company, then such holding
company shall join and become obligated under this Agreement.
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EMPLOYMENT AGREEMENT
XXXXXXX X. XXXXXX
OCTOBER 1996
B. DUTIES OF THE EXECUTIVE
1. DUTIES. The Executive shall perform the duties of the President
and Chief Executive Officer of the Bank, subject to the powers by law vested in
the Board of Directors of the Bank and in the Bank's shareholders. During the
Term, the Executive shall perform exclusively the services herein contemplated
to be performed by the Executive faithfully, diligently and to the best of the
Executive's ability, consistent with the highest and best standards of the
banking industry and in compliance with all applicable laws and Bank's Articles
of Association and Bylaws.
2. CONFLICTS OF INTEREST. Except as permitted by the prior written
consent of the Board of Directors of the Bank, the Executive shall devote the
Executive's entire productive time, ability and attention to the business of the
Bank during the Term, and the Executive 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
1. SALARY. For the Executive's services hereunder, the Bank shall
pay or cause to be paid as salary to the Executive the amount of nine thousand
one hundred sixty-six dollars and sixty-seven cents ($9,166.67) per month during
the Term of this Agreement, prorated for any month in which this Agreement is in
effect for only a portion of the month. The salary shall be payable in equal
installments in conformity with the Bank's normally payroll periods. The
Executive's salary shall be reviewed by the Board of Directors from time to
time, but not less than annually, on or about the anniversary of the Effective
Date and the Executive shall receive such salary increases, if any, as the Board
of Directors, in its sole discretion, shall determine.
2. During the Term of this Agreement, Executive shall also receive
annual increases to the salary described in paragraph C.1. of this Agreement
equal to 100% of the annual increase to the Los Angeles-Anaheim-Riverside All
Urban Consumer Price Index.
3. BONUS. The Executive shall be entitled to receive as an
incentive a "percentage bonus" as described herein for each of the Bank's fiscal
years during which this Agreement is in effect for only a part of the year. For
the purpose of this Agreement, the "percentage bonus" (hereinafter referred to
as Bonus "A") shall be calculated by multiplying by five percentage (5%) points,
the amount of the Bank's "net profits" (as defined herein). For the purpose of
this Agreement, "net profits" shall be the net income as shown on the Bank's
audited accrual basis financial statements. For the purpose of this Agreement,
Bonus "B" will be as follows: In the event the Bank reaches a twelve
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EMPLOYMENT AGREEMENT
XXXXXXX X. XXXXXX
OCTOBER 1996
percent (12%) return on Shareholder's Equity measured as of the close of the
preceding fiscal year, as shown on the Bank's audited financial statement for
that preceding year, then the Bank shall pay the Executive a bonus equal to
seven point five percent (7.5%) times the amount of the Bank's net profit and
shall come from the year end annual report. The Executive shall be entitled to
receive either Bonus "A" or "B". Bonus is based on profit, but after income
taxes. This bonus shall be payable within thirty (30) days after the Bank's
certified public accountants have issued their report.
D. EXECUTIVE BENEFITS
1. VACATION. The Executive shall be entitled to vacation during
each year of the Term in accordance with the Bank's policy on vacation
(currently four weeks for the Executive) as it may change from time to time;
provided however, that during each year period, the Executive is required to and
shall take at least two (2) weeks of said vacation (the "Mandatory Vacation")
which shall be taken consecutively.
2. AUTOMOBILE. During the Term hereof, the Bank shall provide the
Executive for the Executive's sole use, an automobile substantially equivalent
to a top of the line Oldsmobile or Cadillac, fully equipped, and shall pay all
operating expenses of any nature whatsoever with regard to such automobile
including insurance coverage for the automobile, provided that the Executive
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 payments as deductible business
expenses of the Bank.
3. GROUP MEDICAL AND LIFE INSURANCE BENEFITS. The Bank shall
provide for the Executive, at the Bank's expense, participation in medical,
dental, accident and health, income continuation and life insurance benefits
equivalent to the maximum benefits currently available under the California
Banker's Association Group Insurance Program for an employee of the Executive's
salary level. The Bank shall also provide additional term life insurance of
$250,000.00. Said coverage shall continue until premiums at term prices require
conversion to a more appropriate plan, approved by the Board. The Bank's
liability to the Executive for any breach of this paragraph shall be limited to
the amount of premiums payable by the Bank in order to obtain the coverage
contemplated herein.
4. During the employment period, Executive shall be eligible to
participate in any pension or profit-sharing plan, or similar employee benefit
plan or retirement program of the Bank now or hereafter existing, to the extent
that he is eligible under the provisions thereof and commensurate with his
position in relationship to other participants.
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EMPLOYMENT AGREEMENT
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OCTOBER 1996
E. BUSINESS EXPENSES AND REIMBURSEMENT
1. BUSINESS EXPENSES. The Executive shall be entitled to
reimbursement by the Bank for any ordinary and necessary business expenses
incurred by the Executive in the performance of the Executive's duties and in
acting for the Bank during the Term, including but not limited to entertainment,
meals, travel expenses, conventions, meetings, seminars, and clubs, provided
that the Executive furnishes to the Bank adequate records and other documentary
evidence of such expenditures. All such reimbursements shall be subject to
review and audit by the Bank's Board of Directors from time to time, at its sole
discretion. The Bank shall issue credit card(s) for the Executive's use.
F. TERMINATION
1. TERMINATION FOR CAUSE. The Bank may terminate this Agreement at
any time, without further obligation or liability to the Executive, by action of
the Board of Directors for cause. The occurrence of any of the following shall
constitute cause for purposes of this Agreement:
(a) The Executive commits an act or acts of malfeasance or
gross misfeasance in his duties or a willful violation of applicable banking law
or regulations;
(b) The Executive engages in activity which materially
adversely affects the Bank's reputation in the community or which evidences the
lack of the Executive's fitness or ability to perform the Executive's duties as
determined by the Board of Directors, in good faith;
(c) The Executive has committed any act which would cause
termination of coverage under the Bank's Blanket Bond as to Employee, as
distinguished from termination of coverage as to Bank as a whole;
(d) In the event of the Executive's death or the Executive is
found to be physically or mentally incapable of performing the Executive's
duties for a period of 90 days or greater by the Board of Directors, in good
faith;
(e) The Bank is closed or taken over by the Office of the
Comptroller of the Currency or other supervisory authority, including the
Federal Deposit Insurance Corporation; or
(f) Any regulatory authority having supervisory authority over
the Bank, exercises its cease and desist powers to remove the Executive from
office.
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EMPLOYMENT AGREEMENT
XXXXXXX X. XXXXXX
OCTOBER 1996
Termination pursuant to this Section F.1 shall become effective immediately upon
notice of termination.
2. TERMINATION WITHOUT CAUSE. Notwithstanding anything to the contrary
herein, the Bank may terminate this Agreement at any time without cause,
3. MERGER OR CORPORATE DISSOLUTION. In the event of a merger where the
Bank is not the surviving corporation, in the event of a consolidation, in the
event of a transfer of all or substantially all of the assets of the Bank, this
Agreement may be terminated or may be assigned to any person, association or
corporation acquiring all or substantially all of its assets or to any
corporation into which it shall be merged or consolidated if agreed to by the
Sank and that person, association or corporation in which case this Agreement
shall remain in full force and effect and the Bank shall be unconditionally
released from all of its duties and obligations hereunder upon such assignment.
4. EFFECT OF TERMINATION.
(a) In the event this Agreement is terminated for any of the reasons
specified in Section F.1 of this Agreement, the Executive shall be entitled to
the salary earned by the Executive prior to the date of termination as provided
for in this Agreement, computed pro rata up to and including that date, and
accrued but unused vacation time, but the Executive shall be entitled to no
further compensation for services rendered after the date of termination.
(b) In the event this Agreement is terminated pursuant to Section F.2
or F.3 of this Agreement, the Executive shall be entitled to the salary earned
by the Executive to the date of termination, computed pro rata up to and
including that date, and accrued but unused vacation time, plus twelve (12)
months' salary at the rate in effect immediately prior to such termination.
Payment of the additional salary required by this Section shall discharge the
Bank from any further liability to the Executive hereunder.
(c) In the event this Agreement is terminated pursuant to Section F
of this agreement, the provisions of Sections I.1 through I.6 and I.8 hereof
shall survive said termination and shall insure to the benefit of and be binding
upon the parties hereto and their respective executors, administrators,
successors and assigns.
H. RESIGNATION FROM BANK'S BOARD OF DIRECTORS
1. RESIGNATION. In the event the Executive is terminated in
accordance with the Agreement or resigns as President and Chief Executive
Officer of the
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EMPLOYMENT AGREEMENT
XXXXXXX X. XXXXXX
OCTOBER 1996
Bank or otherwise becomes unaffiliated with the Bank, the Executive shall tender
his resignation from the Board of Directors of the Bank effective on the date of
termination, resignation or non-affiliation.
I. GENERAL PROVISIONS
1. TRADE SECRETS. During the Term, the Executive will have access to
and become acquainted with what the Executive and the Bank acknowledge are trade
secrets, to wit, knowledge or data 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. The Executive shall not disclose any of the aforesaid trade
secrets, directly or indirectly, or use them in any way, either during the Term
or for a period of one (1) year after the termination of the Term of this
Agreement, except as required in the course of the Executive's employment with
the Bank.
2. RETURN OF DOCUMENTS. The Executive expressly agrees that all
manuals, documents, files, reports, studies, instruments or other materials used
and/or developed by the Executive during the Term, appertaining to banking, are
solely the property of the Bank, and that the Executive has no right, title or
interest therein. Upon termination of the Term of this Agreement, the Executive
or Executive's representative shall promptly deliver possession of all said
property to the Bank in good condition.
3. 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 States mail, postage
prepaid, or when communicated to a public telegraph company for transmittal,
addressed to the Bank at its head office location or the Executive at his last
known address. Either party may change its address by written notice in
accordance with this Section.
4. BENEFIT OF AGREEMENT. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective executors,
administrators, successors and assigns.
5. APPLICABLE LAW. This Agreement is to be governed by and construed
under the laws of the State of California.
6. INVALID PROVISIONS. Should any provisions 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 remaining portions of this Agreement shall remain in full force
and effect as if this Agreement had been executed with said provision
eliminated.
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EMPLOYMENT AGREEMENT
XXXXXXX X. XXXXXX
OCTOBER 1996
7. ENTIRE AGREEMENT. Except as to separate stock option agreements,
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 the Executive 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
other than duly authorized and executed stock option agreements. This Agreement
may not be modified or amended by oral agreement, but only by an agreement in
writing signed by the Bank and the Executive.
8. ARBITRATION. In the event that any dispute shall arise between the
parties concerning the provisions of this Agreement or the performance of any
part of the obligations hereunder, or in the event of an alleged breach of this
Agreement by any of the parties hereto, and the parties are unable to mutually
adjust and settle same, such dispute or disputes shall be submitted to binding
arbitration pursuant to the applicable rules of the American Arbitration
Association, and the decision and determination of the arbitrators shall be
final and conclusive.
IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
BANK
By /s/ W.S. (XXXXX) VAN DE WEGHE 10-21-96
-------------------------------- ----------------------------------
W.S. (Xxxxx) Van De Weghe Date
Its: Chairman of the Board of Directors
EXECUTIVE
/s/ XXXXXXX X. XXXXXX 10-18-96
---------------------------------- ----------------------------------
Xxxxxxx X. Xxxxxx Date
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