EMPLOYMENT AGREEMENT
 |
 |
This
Agreement is made and entered into on June 15, 2010, by and among Bridge Capital
Holdings (“BCH”), Bridge Bank, National Association (“Bank”) and Xxxxxx X. Xxxxx
(“Executive”) for the purposes set forth hereinafter (“Agreement”).
RECITALS
WHEREAS,
BCH is a California corporation and bank holding company registered under the
Bank Holding Company Act of 1956, as amended, subject to the supervision and
regulation of the Board of Governors of the Federal Reserve System
(“BGFRS”);
WHEREAS, BCH is the parent holding
company for the Bank, which is a national banking association and wholly-owned
subsidiary of BCH, subject to the supervision and regulation of the Office of
the Comptroller of the Currency (“OCC”);
WHEREAS,
Executive served as the President and Chief Executive Officer of BCH and the
Bank pursuant to an employment agreement dated February 15, 2007, by and among
BCH, the Bank and the Executive (the ”Prior Agreement”) and also served as a
director of BCH and the Bank; and
WHEREAS,
it is the intention of the parties to enter into an employment agreement for the
purposes of assuring the continued services of the Executive as the President
and Chief Executive Officer of BCH and the Bank.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, BCH, the Bank and the Executive agree as follows:
AGREEMENT
1. Term of
Employment;
Termination of
Prior Agreement and Waiver of Rights and Benefits and Release of Obligations
Thereunder. Pursuant to this Agreement, the Bank and BCH
employ the Executive and the Executive hereby accepts employment with the Bank
and BCH, upon the terms and conditions hereinafter set forth. The
term of this Agreement shall be a period of three (3) years from the date
hereof, subject to the termination provisions of paragraph 16. Upon
the occurrence of the third annual anniversary of the date of this Agreement,
and on each anniversary date thereafter, the term of this Agreement shall be
deemed automatically extended for an additional one (1) year term, subject to
the termination provisions of paragraph 16.
In
consideration of the Executive’s base salary and such other benefits provided
pursuant to this Agreement, which the Executive, BCH and the Bank acknowledge
and agree represents an increase in compensation benefits over the compensation
benefits provided under the Prior Agreement and is adequate consideration for
the termination of the Prior Agreement, BCH, the Bank and the Executive agree
that the Prior Agreement is hereby terminated effective as of the date of this
Agreement and that this Agreement is intended by the parties hereto to supersede
in full and constitute a complete replacement for the Prior Agreement and any
rights and benefits thereunder, but does not supersede or replace the rights and
benefits under (i) the Indemnification Agreement specified in paragraph 5 of
this Agreement, (ii) the Supplemental Executive Retirement Plan specified in
paragraph 13(d) of this Agreement, or (iii) any stock option or equity award
agreement between BCH and the Executive as specified in paragraph 12 of this
Agreement. In furtherance thereof and notwithstanding any provision
of this Agreement or the Prior Agreement to the contrary, the Executive, for
himself, and his heirs, beneficiaries, executors, administrators, trustees, and
any other legal or personal representatives, agents, successors or permitted
assignees or transferees, further expressly agrees to and does hereby waive and
relinquish any and all rights and benefits under the Prior Agreement and
specifically releases the Bank and BCH, and their respective directors,
officers, employees, agents, affiliates and successors, from any obligations,
duties and liabilities under the Prior Agreement including any matters covered
or contemplated by California Civil Code Section 1542 which reads as
follows:
“A
general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the
debtor.”
2. Duties and Obligations of
Executive. The Executive shall serve as the President and
Chief Executive Officer of BCH and the Bank pursuant to this Agreement and shall
perform the customary duties of each such office in the commercial banking
industry and such additional duties not inconsistent therewith, as may from time
to time be reasonably requested of him by the Board of Directors of
BCH. The Executive shall also serve as a director of BCH and the
Bank, subject to satisfaction of applicable election requirements during the
term of this Agreement.
3. Devotion to Bank's and BCH’s
Business.
(a) The
Executive shall devote his full business time, ability, and attention to the
business of the Bank and BCH during the term of this Agreement and shall not
during the term of this Agreement engage in any other business activities,
duties, or pursuits whatsoever, or directly or indirectly render any services of
a business, commercial, or professional nature to any other person or
organization, whether for compensation or otherwise, without the prior written
consent of the Board of Directors of BCH. However, the expenditure of
reasonable amounts of time for educational, charitable, or professional
activities shall not be deemed a breach of this Agreement if those activities do
not materially interfere with the services required of the Executive under this
Agreement. Nothing in this Agreement shall be interpreted to prohibit
the Executive from making passive personal investments. However, the
Executive shall not directly or indirectly acquire, hold, or retain any interest
in any business competing with or similar in nature to the business of the Bank
and BCH, except passive shareholder investments in other financial institutions
and their respective affiliates which do not exceed five percent (5%) of the
outstanding voting securities in the aggregate in any single financial
institution and its affiliates on a consolidated basis.
-2-
(b) The
Executive hereby represents and agrees that the services to be performed under
the terms of this Agreement are of a special, unique, unusual, extraordinary,
and intellectual character that gives them a peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in an action at
law. The Executive therefore expressly agrees that the Bank and BCH,
in addition to any other rights or remedies that the Bank and BCH may possess,
shall be entitled to injunctive and other equitable relief to prevent or remedy
a breach of this Agreement by the Executive.
4. Noncompetition,
Nonsolicitation and Nondisclosure by the Executive.
(a) The
Executive shall not, during the term of this Agreement, directly or indirectly,
either as an employee, employer, consultant, agent, principal, stockholder
(except as permitted in paragraph 3 (a) of this Agreement), officer, director,
or in any other individual or representative capacity, engage or participate in
any competitive banking or financial services business without the prior written
consent of the Board of Directors of the Bank or BCH.
(b) Following
termination of this Agreement and the Executive’s employment hereunder and for a
period of twelve (12) months thereafter, the Executive shall not use any
confidential, trade secret, or proprietary information of the Bank or BCH, or
their affiliates and subsidiaries, including information described in paragraph
6 below, to solicit, encourage or assist, directly, indirectly or in any manner
whatsoever, (i) any employees of the Bank, BCH or their affiliates and
subsidiaries (including any former employees who voluntarily terminated such
employment within a twelve (12) month period prior to the Executive’s
termination of employment with the Bank or BCH) to resign or to apply for or
accept employment with any other competitive banking or financial services
business within the counties in California in which the Bank has located its
headquarters or branch offices; or (ii) any customer, person or entity that has
a business relationship with the Bank or during the twelve (12) month period
prior to the Executive’s termination of employment with the Bank was engaged in
a business relationship with the Bank, to terminate such business relationship
and engage in a business relationship with any other competitive banking or
financial services business within the counties in California in which the Bank
has located its headquarters or branch offices.
(c) Following
termination of this Agreement and the Executive’s employment hereunder and for a
period of twelve (12) months thereafter, the Executive will not (i) disclose or
use in any manner whatsoever, confidential, trade secret and proprietary
information of the Bank, BCH, or their affiliates and subsidiaries, including
information described in paragraph 6 below except as expressly permitted
thereunder; and (ii) assist (by disclosing information described in paragraph 6
below except as expressly permitted thereunder) any person or entity, directly,
indirectly or in any manner whatsoever, that engages in or seeks to engage in
any competitive banking or financial services business.
-3-
5. Indemnification. The
Executive entered into an indemnification agreement with the Bank dated March
20, 2003, pursuant to which, to the extent permitted by law and applicable
regulations of the BGFRS and OCC, the Bank, and as applicable BCH, shall
indemnify the Executive if he was or is a party or is threatened to be made a
party in any action brought by a third party against the Executive (whether or
not the Bank or BCH is joined as a party defendant) against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred in
connection with said action if the Executive acted in good faith and in a manner
the Executive reasonably believed to be in the best interests of the Bank and
BCH (and with respect to a criminal proceeding if the Executive had no
reasonable cause to believe his conduct was unlawful), provided that the alleged
conduct of the Executive arose out of and was within the course and scope of his
employment as an officer or Executive of the Bank and BCH.
6. Disclosure of
Information. The Executive shall not, either before or after
termination of this Agreement, without the prior written consent of the Board of
Directors of BCH or except as required by law to comply with legal process
including, without limitation, by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process, disclose to anyone any financial information, trade or business
secrets, customer lists, computer software or other information concerning the
business or operations of the Bank or BCH and their respective affiliates and
subsidiaries; provided, that such information shall not include information (i)
in or which enters the public domain (other than by breach of the Executive’s
obligations hereunder); (ii) acquired by the Executive other than in connection
with his employment; or (iii) that is disclosed to the Executive by a third
party not obligated to BCH or the Bank to keep such information
confidential. The Executive further recognizes and acknowledges that
any financial information concerning any customers of the Bank or BCH
and their respective affiliates and subsidiaries, as it may exist from time to
time, is strictly confidential and is a valuable, special and unique asset of
Bank's and BCH’s business. The Executive shall not, either before or
after termination of this Agreement, without such consent or except as required
by law, disclose to anyone said financial information or any part thereof, for
any reason or purpose whatsoever. In the event the Executive is
required by law to disclose such information described in this paragraph 6, the
Executive will provide the Bank and BCH, and their counsel with immediate notice
of such request so that they may consider seeking a protective
order. If, in the absence of a protective order or the receipt of a
waiver hereunder, the Executive is nonetheless, in the written opinion of
knowledgeable counsel, compelled to disclose any of such information to any
tribunal or any other party or else stand liable for contempt or suffer other
material censure or material penalty, then the Executive may disclose (on an “as
needed” basis only) such information to such tribunal or other party without
liability hereunder. Notwithstanding the foregoing, the Executive may
disclose such information concerning the business or operations of the Bank or
BCH and their respective affiliates and subsidiaries as may be required by the
BGFRS, OCC or other regulatory agency having jurisdiction over the operations of
the Bank or BCH in connection with an examination of the Bank or BCH or other
proceeding conducted by such regulatory agency.
-4-
7. Written, Printed or
Electronic Material. All written, printed or electronic
material, notebooks and records including, without limitation, computer disks
used by the Executive in performing duties for the Bank or BCH, other than the
Executive's personal address lists, telephone lists, notes and diaries, are and
shall remain the sole property of the Bank and BCH. Upon termination
of employment, the Executive shall promptly return all such material (including
all copies, extracts and summaries thereof) to the Bank or BCH.
8. Surety Bond and Severance
Benefit. The Executive agrees that he will furnish all
information and take any other steps necessary from time to time to enable the
Bank to obtain or maintain a fidelity bond conditional on the rendering of a
true account by the Executive of all monies, goods, or other property which may
come into the custody, charge, or possession of the Executive during the term of
his employment. The surety company issuing the bond and the amount of
the bond must be acceptable to the Bank. All premiums on the bond
shall be paid by the Bank. The Bank, BCH or their respective
successors, shall have no obligation to pay or provide severance benefits to the
Executive in accordance with paragraph 16 (d) or 16 (e), as applicable, of this
Agreement in the event that the Executive’s employment is terminated in
connection with the Executive’s non-insurability for surety bond coverage as
determined in the sole discretion of the Bank’s insurer at any time during the
term of this Agreement.
9. Base
Salary. The Executive shall receive a base salary at the rate
of four hundred fifty thousand dollars ($450,000) for the first twelve (12)
months of the term of this Agreement, payable in installments of approximately
eighteen thousand seven hundred fifty dollars ($18,750) on the fifteenth and
last day of each month. The Executive’s base salary during each
subsequent year of the term of this Agreement shall be subject to annual
adjustment increase or decrease as determined by the BCH’s Board of Directors,
in its sole discretion, resulting from the Board of Directors annual review of
the consolidated results of operations of BCH, Executive's total compensation
and such other performance criteria or factors as the Board of Directors deems
appropriate. All payments of base salary shall be subject to
applicable adjustments for withholding taxes, prorations for any partial
employment period and such other applicable payroll procedures of the
Bank.
10. Salary Continuation During
Disability. If the Executive for any reason (except as
expressly provided below) becomes temporarily or permanently disabled so that he
is unable to perform the duties under this Agreement, the Executive shall be
paid the base salary otherwise payable to Executive pursuant to paragraph 9 of
this Agreement, reduced by the amounts received by the Executive from state
disability insurance, or worker's compensation or other similar insurance
benefits through policies provided by the Bank or BCH, for a period of six (6)
months from the date of disability. For purposes of this paragraph
10, “disability” shall be defined as provided in the Bank's or BCH’s disability
insurance program.
-5-
11. Incentive
Compensation. Notwithstanding the following provision, the
Executive shall not be entitled to participate in the Incentive Plan (defined
below) or to receive incentive compensation thereunder or otherwise from the
Bank or BCH during any period prior to termination of the limitations and
restrictions set forth under Section 30 of this Agreement.
Subject to paragraph 17 of this Agreement, the Executive shall be
entitled to receive an annual incentive compensation payment pursuant to the
terms of the Management Incentive Compensation Plan in effect at the date of
this Agreement and as amended at any future date (the “Incentive Plan”) or
pursuant to any successor incentive plan or arrangement adopted by the Bank or
BCH for its officers. Except as set forth in the Incentive Plan or in
any successor incentive plan or arrangement, no incentive compensation payments
shall be prorated for a partial year and the Executive shall not be entitled to
receive incentive compensation payments for any year during the term of this
Agreement in which the Executive was not employed by the Bank or BCH for the
full fiscal year. Notwithstanding any provision of the Incentive Plan
or any successor incentive plan or arrangement, no right of continued employment
or any modification of the “at will” nature of the Executive’s employment with
BCH and/or the Bank shall be conferred upon the Executive thereunder or result
therefrom.
12. Stock Options/Equity
Awards. The Executive acknowledges having received the grant
of stock options and/or equity awards pursuant to the BCH Amended and Restated
2001 Stock Option Plan and/or BCH 2006 Equity Incentive Plan (collectively, the
“BCH Plans”). Any future stock option grant or equity award to the
Executive pursuant to the BCH Plans shall be (i) determined by and in the sole
discretion of the Board of Directors of BCH and (ii) evidenced by a stock option
or equity award agreement in the form required by the BCH
Plans. Notwithstanding any provision of the BCH Plans or any such
stock option or equity award agreement to the contrary, no right of continued
employment or any modification of the “at will” nature of the Executive’s
employment with BCH and/or the Bank shall be conferred upon the Executive
thereunder or result therefrom.
13. Other
Benefits. The Executive shall be entitled to those benefits
adopted by the Bank and BCH for all officers of the Bank and BCH, subject to
applicable qualification requirements and regulatory approval requirements, if
any. The Executive shall be further entitled to the following
additional benefits which shall supplement or replace, to the extent duplicative
of any part or all of the general officer benefits, the benefits otherwise
provided to the Executive:
(a) Vacation. The
Executive shall be entitled to twenty-seven (27) business days of annual
vacation leave at his then existing rate of base salary each year during the
term of this Agreement. The Executive may be absent from his
employment for vacation as long as such leave is reasonable and does not
jeopardize his responsibilities and duties specified in this
Agreement. The length of vacation should not exceed ten (10) business
days without the approval of BCH’s Board of Directors. Vacation time
will accrue in accordance with the Bank's personnel policies.
-6-
(b) Automobile Allowance and
Insurance. The Bank or BCH will pay to the Executive an
automobile allowance in the amount of one thousand two hundred fifty dollars
($1,250) per month during the term of this Agreement. The Bank or BCH
shall reimburse the Executive for gasoline or other fuel expenditures related to
business use of the automobile acquired or used by the Executive upon
presentation and approval of receipts, invoices or other appropriate evidence of
such expense in accordance with the policies of the Bank or BCH. The
Executive shall acquire or otherwise make available for his business and
personal use an automobile suitable to his position and maintain it in good
condition and repair. The Executive shall (i) obtain and maintain
public liability insurance and property damage insurance policies with
insurer(s) acceptable to the Bank and BCH and with such coverages in such
amounts as may be acceptable to the Bank and BCH from time to time, (ii) provide
copies of such policies, endorsements or other evidence of insurance acceptable
to the Bank and BCH and (iii) such insurance policies shall include notice to
the Bank or BCH in the event the coverages approved by the Bank and BCH are
changed in any material respect or cancelled. Notwithstanding the
foregoing, the Bank or BCH may, in its discretion, elect to (i) require that the
policies name the Bank and BCH as additional insureds, subject to the
requirement that the Executive’s allowance described above shall be increased in
an amount equal to the additional premium expense, if any, resulting from the
Bank and BCH being named as additional insureds or (ii) provide and pay for such
insurance policies in lieu of the Executive maintaining such
policies.
(c) Insurance. The
Bank or BCH shall provide during the term of this Agreement at no cost to the
Executive group life, health (including medical, dental, vision and
hospitalization), accident and disability insurance coverage for the Executive
and his dependents through a policy or policies provided by the insurer(s)
selected by the Bank or BCH in its sole discretion.
(d) Supplemental
Compensation. The Bank and the Executive acknowledge that they
have entered into a Supplemental Executive Retirement Plan dated August 1, 2004,
which provides supplemental compensation benefits to the Executive payable upon
retirement or as otherwise set forth in such Plan. Notwithstanding
any provision of such Plan, no right of continued employment or any modification
of the “at will” nature of the Executive’s employment with BCH and/or the Bank
shall be conferred upon the Executive thereunder or result
therefrom.
(e) Financial
Planning. The Bank or BCH will reimburse the Executive, upon
presentation and approval of receipts, invoices or other appropriate evidence of
expense in accordance with the policies of the Bank or BCH, for the cost of (i)
consultation with financial planning and/or estate planning advisors, (ii)
premiums incurred by the Executive for personal life and health insurance
coverages supplemental to any group insurance coverages provided by the Bank or
BCH, for the Executive individually and, as applicable, the Executive’s
dependents, (iii) consultation with financial advisors related to personal
investments, (iv) investment advisory and management fees, and (v) tax planning
and accounting fees (the “Permissible Purposes”). The amount of
reimbursement allowance shall be limited to (i) up to fifteen thousand dollars
($15,000) of the expense incurred by the Executive for the first year that the
Executive incurs expense for any of the Permissible Purposes and (ii) up to an
additional five thousand dollars ($5,000) of expense for any of the Permissible
Purposes in each subsequent year during the term of this
Agreement.
-7-
Notwithstanding the foregoing, any portion of such reimbursement
allowance which is not fully spent during a particular year shall carryover and
be available for use by the Executive for the Permissible Purposes in subsequent
years during the term of this Agreement; provided, however, that the maximum
aggregate amount of reimbursement allowance available for use in any particular
year shall not exceed fifteen thousand dollars ($15,000) and any amount in
excess of fifteen thousand dollars ($15,000) shall lapse and will not carryover
from one year to another year or otherwise be available or increase the
reimbursement allowance in any year during the term of this
Agreement.
(f) Technology Devices and
Internet Service. The Bank or BCH will provide at its expense
the following technology devices to be used by the Executive for Bank business
purposes: (i) a smartphone and related internet service for business
applications and (ii) a computer and printer and related DSL internet service
maintained at the Executive’s primary residence. The technology
devices will (i) comply with the Bank’s and BCH’s information technology
policies and (ii) be owned by the Bank at all times during the term of this
Agreement. The Bank or BCH will reimburse the Executive for the
expense of such smartphone internet and DSL internet services, upon presentation
and approval of receipts, invoices or other appropriate evidence of such expense
in accordance with the policies of the Bank or BCH.
(g) Reimbursement of Legal
Expense. The Bank or BCH will reimburse the Executive, upon
presentation and approval of receipts, invoices or other appropriate evidence of
expense in accordance with the policies of the Bank or BCH, for up to five
thousand dollars ($5,000) of the expense incurred by the Executive for
consultation with an attorney in connection with the negotiation and execution
of this Agreement.
(h) Deferred Compensation
Plan. The Executive will be entitled to participate in any
non-qualified deferred compensation plan that the Board of Directors of the Bank
or BCH determines in its sole discretion to establish for the deferral of
compensation earned by the Executive pursuant to this Agreement.
(i) Education. The
Bank or BCH will reimburse the Executive, upon presentation and approval of
receipts, invoices or other appropriate evidence of expense in accordance with
the policies of the Bank or BCH, for expenses incurred for education in
compliance with education policies established by the Bank or BCH; provided,
that the Executive may incur up to ten thousand dollars ($10,000) per year in
additional education expense beyond the limits set forth in such education
policies.
-8-
14. Annual Physical
Examination. The Bank or BCH shall pay or reimburse the
Executive for up to five hundred dollars ($500) of the cost, if any, in excess
of applicable insurance coverage specified in paragraph 13(c) of this Agreement
for an annual physical examination conducted by a California licensed physician
selected by the Executive, the results of which examination shall not be
required to be disclosed to BCH or the Bank. Any such reimbursement
shall be made upon presentation and approval of receipts, invoices or other
appropriate evidence of such expense in accordance with the policies of the Bank
or BCH.
15. Business Expenses;
Memberships. The Executive shall be reimbursed for all
ordinary and necessary expenses incurred by the Executive in connection with his
employment. The Executive shall also be reimbursed for reasonable
expenses incurred in activities associated with promoting the business of the
Bank and BCH, including expenses for entertainment, travel, conventions,
educational programs, dues and expenses for membership in a fitness club and The
Silicon Valley Capital Club, or similar items. The Executive may also
obtain a golf club membership at such time during the term of this Agreement as
the Board of Directors of BCH or the Bank may, in the exercise of its sole
discretion, deem appropriate. All such expenses described above will
be subject to compliance with applicable policies of the Bank or BCH and any
memberships will be further subject to the prior approval of the Board of
Directors of the Bank or BCH in its sole discretion. All such
reimbursements shall be made upon presentation and approval of receipts,
invoices or other appropriate evidence of such expense in accordance with the
policies of the Bank or BCH.
16. Termination of
Agreement.
(a) Automatic
Termination. This Agreement shall terminate automatically
without further act of the parties and immediately upon the occurrence of any
one of the following events, subject to either party's right, without any
obligation whatsoever, to waive an event reasonably susceptible of waiver, and
the obligation of the Bank or BCH to pay the amounts which would otherwise be
payable to the Executive under this Agreement through the end of the month in
which the event occurs, except that only in the event of termination based upon
subparagraphs (1), (4) or (10, to the extent of the Bank's or BCH’s breach)
below shall the Executive be entitled to receive severance benefits based upon
automatic termination pursuant to paragraph 16 (d) of this
Agreement:
|
|
(1)
|
The
occurrence of circumstances that make it impossible or impractical for the
Bank and BCH to conduct or continue its
business.
|
|
(2)
|
The
death of the Executive.
|
|
(3)
|
The
loss by the Executive of legal
capacity.
|
|
|
(4)
|
The
loss by the Bank and BCH of legal capacity to
contract.
|
-9-
|
|
(5)
|
The
willful, intentional and material breach or the habitual and continued
neglect by the Executive of his employment responsibilities and
duties.
|
|
|
(6)
|
The
continuous mental or physical incapacity of the Executive, subject to
disability rights under this
Agreement.
|
|
|
(7)
|
The
Executive's willful and intentional violation of any state or federal
banking or securities laws, or of the bylaws, rules, policies or
resolutions of the Bank or BCH, or the rules or regulations of the BGFRS,
Federal Deposit Insurance Corporation, OCC, or other regulatory agency or
governmental authority having jurisdiction over the Bank or BCH, which has
a material adverse effect upon the Bank or
BCH.
|
|
|
(8)
|
The
written determination by a state or federal regulatory agency or
governmental authority having jurisdiction over the Bank or BCH that the
Executive is not suitable to act in the capacity for which he is employed
by the Bank or BCH.
|
|
|
(9)
|
The
Executive’s conviction of (i) any felony or (ii) a crime involving moral
turpitude, or the Executive’s willful and intentional commission of a
fraudulent or dishonest act.
|
|
|
(10)
|
A
material breach of the terms or provisions of this Agreement, which breach remains
uncured after thirty (30) days from the date written notice of breach
including the basis for the good faith determination of breach is given by
the non-breaching party to another
party.
|
(b) Termination by Bank or
BCH. The Bank or BCH may, at its election and in its sole
discretion, terminate the Executive’s employment and this Agreement at any time
and for any reason or for no reason, upon thirty (30) days prior written notice
to the Executive, without prejudice to any other remedy to which the Bank or BCH
may be entitled either at law, in equity or under this
Agreement. Unless otherwise agreed in writing between the Executive,
the Bank and BCH, at the time such notice is given the Executive shall
immediately cease performing and discharging the duties and responsibilities of
his positions and remove himself and his personal belongings from the Bank’s and
BCH’s premises and the Executive agrees to concurrently resign as a director of
both the Bank and BCH. All rights and obligations accruing to the
Executive under this Agreement shall cease at such termination, except that such
termination shall not prejudice the Executive’s rights regarding employment
benefits which shall have accrued prior to such termination, including the right
to receive the severance benefits specified in paragraph 16 (d) below, and any
other remedy which the Executive may have at law, in equity or under this
Agreement, which remedy accrued prior to such termination.
-10-
(c) Termination by
Executive. This Agreement may be terminated by the Executive
as follows:
(i) the Executive may
terminate his employment and this Agreement at any time and for any reason or no
reason, upon thirty (30) days prior written notice to the Bank or
BCH. Unless otherwise agreed in writing between the Executive, the
Bank and BCH, at the time such notice is given the Executive shall immediately
cease performing and discharging the duties and responsibilities of his
positions and remove himself and his personal belongings from the Bank’s and
BCH’s premises and the Executive agrees to concurrently resign as a director of
both the Bank and BCH. All rights and obligations accruing to the
Executive under this Agreement shall cease at such termination, except that such
termination shall not prejudice the Executive's rights regarding employment
benefits which shall have accrued prior to such termination and any other remedy
which the Executive may have at law, in equity or under this Agreement, which
remedy accrued prior to such termination; or
(ii) the Executive may
terminate his employment and this Agreement at any time upon thirty (30) days
prior written notice to the Bank or BCH, based on the Executive’s good faith
determination of the existence of “good reason” therefore, subject to the right
of the Bank or BCH to cure the matter alleged as the basis for the Executive’s
determination that “good reason” exists as described herein. In order
to be considered a “good reason,” such notice must be given to the Bank or BCH
within ninety (90) days of the occurrence of the event causing the “good reason”
to exist. For purposes of this Agreement, “good reason” shall mean
that without the Executive’s written consent there occurs (A) any material
adverse change in the nature and scope of the Executive's position, authorities,
responsibilities, duties, or a change of twenty (20) miles or more in the
Executive's location of employment, or any material reduction in the Executive’s
base salary, incentive compensation (including any material adverse change to
the terms of the Incentive Plan after the date of this Agreement) or other
benefits under this Agreement, or (B) any event which reasonably constitutes a
demotion, significant diminution or constructive termination (by resignation or
otherwise) of the Executive's employment. The Executive shall specify
in any such notice to the Bank or BCH the specific basis for his good faith
determination that “good reason” exists and the Bank or BCH shall have thirty
(30) days within which to cure any matter alleged by the Executive as the basis
for such “good reason” determination by the Executive. If, in the
reasonable good faith determination of the Executive, the matters alleged by the
Executive as “good reason” are cured within such thirty (30) day period, then
the Executive shall not be entitled to terminate his employment and this
Agreement based thereon. Unless otherwise agreed in writing between
the Executive, the Bank and BCH, upon termination, the Executive shall
immediately cease performing and discharging the duties and responsibilities of
his positions and remove himself and his personal belongings from the Bank’s and
BCH’s premises and the Executive agrees to concurrently resign as a director of
both the Bank and BCH.
-11-
(d) Severance Benefits - Without
a Change in Control. Subject to paragraphs 17 and 30 of this
Agreement, in the event of automatic termination based upon paragraph 16 (a)
(1), (4) or (10, to the extent of the Bank's or BCH’s breach), or termination by
the Bank or BCH pursuant to paragraph 16 (b), or termination at the election of
the Executive for “good reason” pursuant to paragraph 16 (c) (ii), then in each
such case, the Executive shall receive severance benefits consisting of (i) a
cash payment in an amount equal to one and one-half (1 ½) times the Executive's
(A) annual base salary during the year the termination occurs and (B) average
bonus or incentive compensation amount paid to the Executive in the three (3)
year period immediately preceding the termination, less applicable withholding
deductions (in addition to base salary, incentive compensation, or other
payments, if any, due the Executive), payable in lump sum within thirty (30)
days following such termination; (ii) acceleration of vesting of any stock
options or equity awards granted to the Executive pursuant to the BCH Plans; and
(iii) continuation of group insurance coverages specified in paragraph 13 (c) of
this Agreement for the Executive and his dependents pursuant to The Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”), or under applicable
California law pursuant to Assembly Xxxx No. 1401 (“Cal-COBRA”), with one
hundred percent (100%) of premiums for the insurance coverages payable by the
Bank or BCH monthly to the Executive for a period of eighteen (18) months from
the date of termination. Notwithstanding the foregoing or anything
contained in this Agreement to the contrary, the obligation of the Bank or BCH
to pay the premium costs related to the COBRA or Cal-COBRA continuation of
insurance coverages shall terminate at the earlier of the expiration of eighteen
(18) months from the date of termination or the date of commencement of
comparable insurance coverages for the Executive by another
employer. After such expiration date, the Executive shall have such
rights to continue to participate under the Bank’s or BCH’s group health
benefits plan at the Executive’s expense as may be available under COBRA or Cal
COBRA. The Executive agrees to notify the Bank or BCH as soon as
practicable, but not less than ten (10) business days in advance of the
commencement of such comparable insurance coverages with another employer and to
repay to the Bank or BCH any amounts paid by the Bank or BCH to or for the
benefit of the Executive that overlap the coverages provided by the other
employer.
Notwithstanding
the foregoing, in the event of a “change in control” as defined in paragraph 16
(e) below, the Executive shall not be entitled to the severance benefits
pursuant to this paragraph 16 (d) and any rights of the Executive to severance
benefits shall be limited to such rights as are specified in paragraph 16 (e)
below.
The
Executive acknowledges and agrees that severance benefits pursuant to this
paragraph 16 (d) are in lieu of all damages, payments and liabilities on account
of the early termination of this Agreement and the sole and exclusive remedy for
the Executive for a termination specified in paragraph 16 (d).
-12-
(e) Severance Benefits - Change
in Control. The Executive shall be entitled to receive
severance benefits in the event of a “change in control” as defined herein if,
in connection with a change in control or within thirty (30) months following
consummation of a change in control, (i) the Executive's employment is
terminated by BCH, the Bank or a successor entity to BCH or the Bank, or by an
organization that owns a controlling interest in either such successor entity;
or (ii) the Executive terminates employment based upon the occurrence, without
the Executive’s written consent, of (A) any material adverse change in the
nature and scope of the Executive's position, authorities, responsibilities,
duties, or a change of twenty (20) miles or more in the Executive's location of
employment, or any material reduction in the Executive’s base salary, incentive
compensation (including any material adverse change to the terms of the
Incentive Plan after the date of this Agreement) or other benefits under this
Agreement, or (B) any event which reasonably constitutes a demotion, significant
diminution or constructive termination (by resignation or otherwise) of the
Executive's employment. In order to receive severance benefits after
termination pursuant to paragraph 16(e) (ii), the Executive must give written
notice to BCH, the Bank or a successor entity to BCH or the Bank, or to an
organization that owns a controlling interest in either such successor entity,
of the Executive’s intention to terminate employment based upon and within
ninety (90) days of the occurrence of an event specified in paragraph 16(e)
(ii), and thereafter the recipient of such notice shall have a thirty (30) day
right to cure period from the date of receipt of such notice within which to
rescind or otherwise reverse the occurrence of an event specified in paragraph
16(e) (ii) before the Executive’s termination becomes effective. An
event constituting a “material adverse change in the nature and scope of
Executive’s position, authorities, responsibilities, duties” or “a demotion,
significant diminution or constructive termination” shall be deemed to have
occurred if following a “change in control,” the Executive is not the sole
President and Chief Executive Officer of both the successor entity to
the Bank and the successor entity to BCH, or any organization that owns a
controlling interest in either such successor entity.
Subject
to paragraphs 17 and 30 of this Agreement, the severance benefits payable
pursuant to this paragraph 16 (e) shall consist of (i) a cash payment in an
amount equal to two and one-half (2 ½) times the Executive's (A) annual base
salary during the year the termination or other event triggering a right to
severance benefits hereunder occurs and (B) average bonus or incentive
compensation amount paid to the Executive in the three (3) year period
immediately preceding the termination, less applicable withholding
deductions (in addition to base salary, incentive compensation, or other
payments, if any, due the Executive), payable in lump sum within thirty (30)
days following such termination; (ii) acceleration of vesting of any stock
options or equity awards granted to the Executive pursuant to the BCH Plans; and
(iii) continuation of group insurance coverages specified in paragraph 13 (c) of
this Agreement for the Executive and his dependents pursuant to The Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”), or under applicable
California law pursuant to Assembly Xxxx No. 1401 (“Cal-COBRA”), with one
hundred percent (100%) of premiums for the insurance coverages payable by the
Bank or BCH monthly to the Executive for a period of thirty (30) months from the
date of termination. Notwithstanding the foregoing or anything
contained in this Agreement to the contrary, the obligation of the Bank or BCH
to pay the premium costs related to the COBRA or Cal-COBRA continuation of
insurance coverages shall terminate at the earlier of the expiration of thirty
(30) months from the date of termination or the date of commencement of
comparable insurance coverages for the Executive by another
employer. After such expiration date, the Executive shall have such
rights to continue to participate under the Bank’s or BCH’s group health
benefits plan at the Executive’s expense as may be available under COBRA or Cal
COBRA. The Executive agrees to notify the Bank or BCH as soon as
practicable, but not less than ten (10) business days in advance of the
commencement of such comparable insurance coverages with another employer and to
repay to the Bank or BCH any amounts paid by the Bank or BCH to or for the
benefit of the Executive that overlap the coverages provided by the other
employer. Notwithstanding the foregoing or any other provision of
this Agreement to the contrary, if any part or all of the severance benefits is
subject to taxation under Section 409A of the Internal Revenue Code of 1986, as
amended, as determined by the Bank or BCH, with the advice of its independent
accounting firm or other tax advisors, then the severance payment shall be
subject to modification as set forth hereafter in paragraph 17 of this
Agreement.
-13-
The
Executive acknowledges and agrees that severance benefits pursuant to this
paragraph 16 (e) are in lieu of all damages, payments and liabilities on account
of the events described above for which such severance benefits may be due the
Executive under paragraph 16 (e) of this Agreement. This paragraph 16
(e) shall be binding upon and inure to the benefit of the Bank and BCH and their
respective successors and assigns, and the Executive and the Executive’s heirs,
beneficiaries, successors, permitted assigns or transferees, executors,
administrators, trustees, and any other legal or personal
representatives.
Notwithstanding
the foregoing, the Executive shall not be entitled to receive severance benefits
pursuant to this paragraph 16 (e) in the event of an occurrence described in
paragraph 16 (a), subparagraphs (5), (7), (8), (9), or (10, to the extent of an
Executive breach), or in the event the Executive terminates employment in
accordance with paragraph 16 (c) (i) and the termination is not a result of or
based upon the occurrence of any event described in paragraph 16 (e) (ii)
above.
A “change
in control” for purposes of this Agreement and paragraph 16 (e), subject to the
limitation of Section 409A of the Internal Revenue Code of 1986, as amended, set
forth in paragraph 17 of this Agreement, shall mean the occurrence of any of the
following events with respect to the Bank or BCH: (i) a change in control of a
nature that would be required to be reported in response to Item 6 (e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), or in response to any other form or
report to the regulatory agencies or governmental authorities having
jurisdiction over the Bank or BCH or any stock exchange on which BCH's shares
are listed which requires the reporting of a change in control; (ii) any merger,
consolidation or reorganization of the Bank or BCH in which the Bank or BCH does
not survive; (iii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) of any assets
of the Bank or BCH having an aggregate fair market value of fifty percent (50%)
or more of the total value of the assets of the Bank or BCH, reflected in the
most recent consolidated audited or interim unaudited balance sheet of BCH; (iv)
a transaction whereby any “person” (as such term is used in the Exchange Act) or
any individual, corporation, partnership, trust or any other entity is or
becomes the beneficial owner, directly or indirectly, of securities of BCH or
Bank representing twenty-five percent (25%) or more of the combined voting power
of BCH’s or Bank’s then outstanding securities; (v) a situation where, in any
one-year period, individuals who at the beginning of such period constitute the
Board of Directors of the Bank or BCH cease for any reason to constitute at
least a majority thereof; or (vi) the shareholder(s) of the Bank or BCH approve
the sale or transfer of substantially all of the Bank’s or BCH’s assets to
parties that are not within a “controlled group of corporations” (as that term
is defined in Section 1563 of the Internal Revenue Code of 1986, as amended) in
which the Bank, or as applicable BCH, is a member.
-14-
Notwithstanding
the foregoing or anything else contained herein to the contrary, (i) if the
individuals who constitute the directors of the Bank and BCH at the time a
definitive agreement for a proposed transaction described above (excepting
therefrom the situation described in subparagraph (v) above) is executed will,
according to the terms of the definitive agreement, constitute a majority of the
members of the board of directors of the resulting entity(ies) or acquiring
person(s) that control(s) or is(are) the successor(s) to the Bank and BCH
immediately after the transaction, then before a transaction or event that would
otherwise constitute a change in control shall be deemed to have occurred, such
directors of the Bank and BCH may determine by majority vote that the specific
transaction or event does not constitute a change in control; and (ii) there
shall not be a change in control hereunder in the event that (A) an Employee
Stock Ownership Plan is sponsored by BCH which is the party that acquires
“control” or is the principal participant in the transaction constituting a
“change in control,” as described above, or (B) a reorganization is initiated by
the Board of Directors of the Bank or BCH in which the Bank is merged with and
into another wholly-owned bank subsidiary of BCH to consolidate operations under
the charter of such other bank subsidiary.
17. Section 409A
Limitation.
(a) General. It
is the intention of BCH, the Bank and the Executive that this Agreement shall be
interpreted and administered consistent with Section 409A of the Internal
Revenue Code of 1986, as amended (“Section 409A”) and that the severance
benefits payable to the Executive under this Agreement either be exempt from, or
otherwise comply with, Section 409A. Notwithstanding any other term,
provision, or other matter set forth elsewhere in this Agreement, to the extent
that any provision of this Agreement may be determined by BCH or the Bank, with
the advice of its independent accounting firm or other tax advisors, to be
subject to and not in compliance with Section 409A, such provisions shall be
interpreted in the manner required to comply with Section 409A.
BCH, the
Bank and the Executive further acknowledge and agree that if, in the judgment of
BCH or the Bank, with the advice of its independent accounting firm or other tax
advisors, amendment of this Agreement is necessary to clarify any of the terms
of this Agreement, or to comply with Section 409A, BCH, the Bank and the
Executive will negotiate reasonably and in good faith to amend the terms of this
Agreement to the extent necessary so that it complies (with the most limited
possible economic effect on BCH, the Bank and the Executive) with Section
409A.
-15-
(b) Payments to Specified
Employees. Notwithstanding any provision of this Agreement to
the contrary, if the Executive is considered a “Specified Employee” (as defined
below), any distributions hereunder which would otherwise be made to the
Executive pursuant to the terms of this Agreement shall not be made during the
first six (6) months following termination of employment that constitutes a
separation from service pursuant to Section 409A unless the Executive dies prior
to the end of such six (6) month period. Any distribution which would
otherwise be paid to the Executive during such six (6) month period shall be
accumulated and paid to the Executive in a lump sum on the first day of the
seventh (7th) month
following such a separation from service. All subsequent
distributions shall be paid in the manner otherwise specified in this
Agreement.
The term “Specified Employee” shall mean an employee who at the time of
separation from service is a “Key Employee” of BCH or the Bank or a successor
entity of either, if any stock of BCH, the Bank or a successor entity of either
is publicly traded on an established securities market or
otherwise. For purposes of this Agreement, an employee is a Key
Employee if the employee meets the requirements of section 416(i)(1)(A)(i),
(ii), or (iii) of the Internal Revenue Code of 1986, as amended (applied in
accordance with the regulations thereunder and disregarding section 416(i)(5)
thereof) at any time during the twelve (12) month period ending on December 31
(the "Identification Period"). If the employee is a Key Employee
during an Identification Period, the employee is treated as a Key Employee for
purposes of this Agreement during the twelve (12) month period that begins on
the first day of April following the close of the Identification
Period.
18.
Gross-Up of Section 280G and
409A Tax. If all or any portion of the amounts payable to the
Executive under this Agreement, either alone or together with other payments
which the Executive has the right to receive from the Bank or BCH, constitute
“excess parachute payments” within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the “Code”), that are subject to the excise
tax imposed by Section 4999 of the Code (or similar tax and/or assessment), or
any tax is imposed on the Executive under Section 409A, the Bank or BCH (and its
successor) shall increase the amounts payable under this Agreement to the extent
necessary to afford the Executive substantially the same economic benefit under
this Agreement as the Executive would have received had no such excise tax under
Section 280G or tax under Section 409A been imposed on the payments due the
Executive under this Agreement. The determination of the amount of any such
taxes shall be made by the independent accounting firm employed by the Bank or
BCH, immediately prior to the change in control, or such other independent
accounting firm or advisor as may be mutually agreeable to the Bank or BCH (and
their respective successor), and the Executive in the exercise of their
reasonable good faith judgment. If, at a later date, it is determined
(pursuant to final regulations or published rulings of the Internal Revenue
Service, final judgment of a court of competent jurisdiction, or otherwise) that
the amount of any such taxes payable to the Executive is greater than the amount
initially so determined, then the Bank or BCH (or its successor) shall pay to
the Executive an amount equal to the sum of such additional taxes and any
interest, fines and penalties resulting from such underpayment, plus an amount
necessary to reimburse the Executive substantially for any income, excise or
other taxes payable by the Executive with respect to such
amounts.
-16-
19. Notices. Any
notices to be given hereunder shall be in writing and may be transmitted by
personal delivery or by U.S. mail, registered or certified, postage prepaid with
return receipt requested. Mailed notices shall be addressed to the
Executive at the address listed in the Executive’s personnel file and to the
Bank or BCH at its principal business office located at 00 Xxxxxxx Xxxx., Xxx
Xxxx, Xxxxxxxxxx. A party may change the address for receipt of
notices by written notice in accordance with this paragraph
19. Notices delivered personally shall be deemed communicated as of
the date of actual receipt; mailed notices shall be deemed communicated as of
three (3) days after the date of mailing.
20. Arbitration. All
claims, disputes and other matters in question arising out of or relating to
this Agreement or the breach or interpretation thereof, other than those matters
which are to be determined by the Bank or BCH, in its sole and absolute
discretion, shall be resolved by binding arbitration before a representative
member, selected by the mutual agreement of the parties, of the Judicial
Arbitration and Mediation Services, Inc. (“JAMS”), in accordance with the rules
and procedures of JAMS then in effect which are incorporated herein by this
reference. In the event JAMS is unable or unwilling to conduct such
arbitration, or has discontinued its business, the parties agree that a
representative member, selected by the mutual agreement of the parties, of the
American Arbitration Association (“AAA”), shall conduct such binding arbitration
in accordance with the rules and procedures of the AAA then in effect which are
incorporated herein by this reference. Notice of the demand for
arbitration shall be filed in writing with the other party to this Agreement and
with JAMS (or AAA, if necessary). In no event shall the demand for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statute of limitations. Any award rendered
by JAMS or AAA shall be final and binding upon the parties, and as applicable,
their respective heirs, beneficiaries, legal representatives, agents, successors
and assigns, and may be entered in any court having jurisdiction
thereof. The obligation of the parties to arbitrate pursuant to this
clause shall be specifically enforceable in accordance with, and shall be
conducted consistently with, the provisions of Title 9 of Part 3 of the
California Code of Civil Procedure. Any arbitration hereunder shall
be conducted in San Jose, California, unless otherwise agreed to by the
parties.
-17-
21. Attorneys' Fees and
Costs. In the event of litigation, arbitration or any other
action or proceeding between the parties to interpret or enforce this Agreement
or any part thereof or otherwise arising out of or relating to this Agreement,
the prevailing party shall be entitled to recover its costs related to any such
action or proceeding and its reasonable fees of attorneys, accountants and
expert witnesses incurred by such party in connection with any such action or
proceeding. The prevailing party shall be deemed to be the party
which obtains substantially the relief sought by final resolution, compromise or
settlement, or as may otherwise be determined by order of a court of competent
jurisdiction in the event of litigation, an award or decision of one or more
arbitrators in the event of arbitration, or a decision of a comparable official
in the event of any other action or proceeding. Every obligation to
indemnify under this Agreement includes the obligation to pay reasonable fees of
attorneys, accountants and expert witnesses incurred by the indemnified party in
connection with matters subject to indemnification.
22. Entire
Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with respect to the
employment of the Executive by the Bank and BCH and contains all of the
covenants and agreements between the parties with respect to the employment of
the Executive by the Bank and BCH; provided, that, this Agreement does not
supersede or replace the rights and benefits under (i) the Indemnification
Agreement specified in paragraph 5 of this Agreement, (ii) the Supplemental
Executive Retirement Plan specified in paragraph 13(d) of this Agreement or
(iii) any stock option or equity award agreement between BCH and the Executive
as specified in paragraph 12 of this Agreement. Each party to this
Agreement acknowledges that no other 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 set forth herein, and that no other
agreement, statement, or promise not contained in this Agreement shall be valid
or binding on either party.
23. Modifications. Any
modification of this Agreement will be effective only if it is in writing and
signed by a party or its authorized representative.
24. Waiver. The
failure of a party to insist on strict compliance with any of the terms,
provisions, covenants, or conditions of this Agreement by another party shall
not be deemed a waiver of any term, provision, covenant, or condition,
individually or in the aggregate, unless such waiver is in writing, nor shall
any waiver or relinquishment of any right or power at any one time or times be
deemed a waiver or relinquishment of that right or power for all or any other
times.
25. 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 and effect
without being impaired or invalidated in any way.
26. Interpretation. This
Agreement shall be construed without regard to the party responsible for the
preparation of the Agreement and shall be deemed to have been prepared jointly
by the parties. Any ambiguity or uncertainty existing in this
Agreement shall not be interpreted against either party, but according to the
application of other rules of contract interpretation, if an ambiguity or
uncertainty exists.
-18-
27. Governing Law and
Venue. The laws of the State of California, other than those
laws denominated choice of law rules, shall govern the validity, construction
and effect of this Agreement. Any action which in any way involves
the rights, duties and obligations of the parties hereunder and is not resolved
by binding arbitration shall be brought in the courts of the State of California
and venue for any action or proceeding shall be in Santa Xxxxx County or in the
United States District Court for the Northern District of California, and the
parties hereby submit to the personal jurisdiction of said courts.
28. Payments Due Deceased
Executive. If the Executive dies prior to the expiration of
the term of his employment, any payments that may be due the Executive from the
Bank or BCH under this Agreement as of the date of death shall be paid to the
Executive's heirs, beneficiaries, successors, permitted assigns or transferees,
executors, administrators, trustees, or any other legal or personal
representatives.
29. Assignment/Binding
Effect. Except as specifically set forth in this Agreement,
the Executive may not assign, delegate or otherwise transfer any of the
Executive’s rights, benefits, duties or obligations under this Agreement without
the prior written consent of the Bank and BCH. This Agreement shall
inure to the benefit of and be binding upon the Bank and BCH and their
respective successors and assigns, and the Executive and the Executive’s heirs,
beneficiaries, successors, permitted assigns or transferees, executors,
administrators, trustees, and any other legal or personal
representatives.
30.
TARP
Limitations. The parties acknowledge and agree that BCH has
entered into agreements in connection with the sale of BCH securities to the
United States Department of Treasury (the “Treasury”) under the TARP Capital
Purchase Program (the “CPP”) and the Executive has also entered into an
agreement waiving certain rights under executive compensation arrangements such
as this Agreement. Such agreements with the Treasury (the “CPP
Agreements”) impose limitations upon executive compensation arrangements which
are binding upon BCH, the Bank and the Executive. Among the executive
compensation limitations imposed under the CPP are (i) prohibitions upon
adoption of compensation arrangements that may incentivize management officers
such as the Executive to take unnecessary and excessive risks, (ii) restrictions
upon making any payment that would be considered a golden parachute payment in
violation of the CPP, and (iii) requirements that any bonus and incentive
compensation paid to the Executive is subject to recovery or “clawback” if the
payments were based on materially inaccurate financial statements or performance
metric criteria. The parties further acknowledge and agree that
additional limitations may be imposed by the United States Congress, Treasury,
and/or banking regulatory authorities having jurisdiction over the operations of
BCH and the Bank which may affect the rights and obligations of BCH, the Bank
and the Executive under this Agreement and/or pursuant to such other
compensation arrangements.
-19-
Notwithstanding any provision of this Agreement to the contrary, BCH, the Bank
and the Executive further acknowledge and agree that the limitations and
restrictions under the CPP Agreements will continue in effect as limitations and
restrictions upon the provisions of this Agreement and the rights and
obligations of the parties hereunder including, but not limited to, the
Executive’s entitlement or right to receive incentive compensation under Section
11, severance benefits under Sections 16(d) and 16(e), tax gross-up under
Section 18 and/or such other compensation provided for in this Agreement, until
such time as the CPP Agreements and any limitations or restrictions imposed
under current or future regulations promulgated by the United State Congress,
Treasury, and/or banking regulatory authorities having jurisdiction over the
operations of BCH and the Bank are terminated. Any conflicts between
the provisions of this Agreement and the foregoing limitations and restrictions
shall be resolved in favor of compliance with such limitations and
restrictions.
31. Effect of Termination on
Certain Provisions. Upon the termination of this Agreement,
the obligations of the Bank, BCH and the Executive hereunder shall cease except
to the extent of the Bank’s or BCH’s obligation to make payments, if any, to or
for the benefit of the Executive following termination, and provided that
paragraphs 4, 5, 6, 7, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30 and 31
shall remain in full force and effect.
32. Advice of Counsel and
Advisors. The Executive acknowledges and agrees that he has
read and understands the terms and provisions of this Agreement and prior to
signing this Agreement, he has had the advice of counsel and/or such other
advisors as he deemed appropriate in connection with his review and analysis of
such terms and provisions of this Agreement.
33. Required Regulatory
Approvals. Notwithstanding any provision of this Agreement to
the contrary, if approvals of banking regulatory or other governmental
authorities having jurisdiction over the operations of BCH or the Bank are
required as a condition to Executive’s employment pursuant to this Agreement
including, without limitation, the approval of the BGFRS or its Federal Reserve
Bank of San Francisco, the FDIC, or the OCC, then in such event this Agreement
shall not be effective until such approvals are obtained. In the
event any such approvals are not obtained, this Agreement and the rights and
obligations of the parties hereunder shall automatically and without further
action of any party hereto be terminated.
-20-
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written in the City of San Xxxx, County of Santa Xxxxx, State of
California.
|
EXECUTIVE
|
||||
|
By:
|
|
|
||
|
Xxxxx
X. Xxxxxx, M.D.
|
Xxxxxx
X. Xxxxx
|
|||
|
Chairman
of the Board
|
||||
|
By:
|
|
|||
|
Xxxxxx
X. Xxxxx
|
||||
|
Vice-Chairman
of the Board
|
||||
|
BRIDGE
BANK, NATIONAL ASSOCIATION
|
||||
|
By:
|
|
|||
|
Xxxxx
X. Xxxxxx, M.D.
|
||||
|
Chairman
of the Board
|
||||
|
By:
|
|
|||
|
Xxxxxx
X. Xxxxx
|
||||
|
Vice-Chairman
of the Board
|
||||
-21-
