EMPLOYMENT AGREEMENT
Exhibit
10.1
EMPLOYMENT
AGREEMENT (“Agreement”) dated this 19th
day of December
2007, by and between Xxxxxx Xxxxxxx (the “Executive”), Pacific Premier Bancorp,
Inc. (the “Company”) and Pacific Premier Bank (the “Bank” and, together with the
Company, the “Employers”).
WITNESSETH
WHEREAS,
the Employers desire to assure themselves of the services of the
Executive for the period provided in this Agreement, and the Executive is
willing to serve in the employ of the Employers for such period, all in
accordance with the terms and conditions contained in this
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants herein set forth,
Executive and the Employers do agree to the terms of employment as
follows:
1. Definitions. The
following words and terms shall have the meanings set forth below for the
purposes of this Agreement:
(a) Affiliate. Affiliate
of any person or entity means any stockholder or person or entity controlling,
controlled by or under common control with such person or entity, or any
director, officer or key executive of such entity or any of their respective
relatives. For purposes of this definition, “control,” when used with respect to
any person or entity, means the power to direct the management and policies
of
such person or entity, directly or indirectly, whether through ownership
of
voting securities, by contracting or otherwise; and the terms “controlling” and
“controlled” have meanings that correspond to the foregoing.
(b) Base
Salary. “Base Salary” shall have the meaning set forth in
Section 3 (a) hereof.
(c) Cause.
Termination of the Executive's employment for “Cause” shall mean
termination because of personal dishonesty or incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule or regulation (other
than traffic violations or other misdemeanor offenses) or final cease-and-desist
order or material breach of any provision of this Agreement.
(d) Change
in Control. “Change in Control” shall mean the occurrence of
any of the following events subsequent to the date of this Agreement: (i)
the
acquisition of control of the Company or the Bank as defined in the rules
and
regulations of the applicable banking regulators on the date hereof (provided
that in applying the definition of Change in Control as set forth under the
rules and regulations of the applicable banking regulators, the Board of
Directors of Employers shall substitute its judgment for that of the applicable
banking regulators); (ii) an event that would be required to be reported
in
response to Item 5.01(a) of the Current Report on Form 8-K pursuant to Sections
13 or 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”),
or any successor thereto, whether or not any class of securities of the Company
is registered under the Exchange Act; (iii) any “person” (as such term is used
in Sections 13(d) and 14(d) of the Exchange Act), after the date hereof,
other
than a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any Affiliate of the Company, is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 25% or more of the
combined voting power of the Company's then outstanding securities; (iv)
the
sale or other disposition of all or substantially all of the assets of the
Company or the transfer by the Company of greater than 25% of the voting
securities of the Company; or (v) during any period of three consecutive
years,
individuals who at the beginning of such period constitute the Board of
Directors of the Company cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election by stockholders,
of
each new director was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of the
period.
(e) Code. “Code”
shall mean the Internal Revenue Code of 1986, as amended.
(f) Confidential
and Proprietary Information. “Confidential and Proprietary Information”
shall mean any and all (i) confidential or proprietary information
or material
not in the public domain about or relating to the business, operations, assets
or financial condition of the Employers or any Affiliate of the Employers
or any
of the Employers’ or any such Affiliate's trade secrets; and (ii) information,
documentation or material not in the public domain by virtue of any action
by or
on the part of the Executive, the knowledge of which gives or may give the
Employers or any Affiliate of the Employers an advantage over any person
not
possessing such information. For purposes hereof, the term Confidential and
Proprietary Information shall not include any information or material (i)
that
is known to the general public other than due to a breach of this Agreement
by
the Executive or (ii) was disclosed to the Executive by a person who the
Executive did not reasonably believe was bound to a confidentiality or similar
agreement with the Employers.
(g) Date
of Termination. “Date of Termination” shall mean (i) if the Executive's
employment is terminated for Cause or for Disability, the date specified
in the
Notice of Termination, and (ii) if the Executive's employment is terminated
for
any other reason, the date on which a Notice of Termination is given or as
specified in such Notice.
(h) Disability.
Termination by the Employers of the Executive's employment based
on
“Disability” shall mean termination because of any physical or mental impairment
which qualifies the Executive for disability benefits under the applicable
long-term disability plan maintained by the Company or the Bank or, if no
such
plan applies, which would qualify the Executive for disability benefits under
the Federal Social Security System.
(i) Good
Reason. Termination by the Executive of the Executive's employment for
“Good Reason” shall mean termination by the Executive following a Change in
Control based on:
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(i)
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Without
the Executive's express written consent, a material adverse change
made by
the Employers which would reduce the Executive's functions, duties
or
responsibilities as President and Chief Executive Officer of the
Company
and the Bank.
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(ii)
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Without
the Executive's express written consent, a material reduction by
the
Employers in the Executive's Base Salary as the same may be increased
from
time to time; or
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(iii)
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Without
the Executive's express written consent, the Employers require
the
Executive to be based at a location more than 50 miles from Costa
Mesa,
California (which requirement shall be deemed to be a material
change in
the geographic location at which the Executive must perform services
for
the Company and the Bank), except for required travel on business
of the
Employers to an extent substantially consistent with the Executive's
present business travel
obligations.
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(j) IRS. IRS
shall mean the Internal Revenue Service.
(k) Notice
of Termination. Any purported termination of the Executive's employment
by the Employers for any reason including, without limitation, for Cause
or
Disability, or by the Executive for any reason including, without limitation,
for Good Reason, shall be communicated by written “Notice of Termination” to the
other party or parties hereto. For purposes of this Agreement, a “Notice of
Termination” shall mean a dated notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis
for
termination of Executive's employment under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty (30)
nor
more than ninety (90) days after such Notice of Termination is given, except
in
the case of the Company's termination of Executive's employment for Cause,
which
shall be effective immediately; and (iv) is given in the manner specified
in
Section 14 hereof.
(l) Separation
from Service. Whether a Separation from Service takes place
is determined based on the facts and circumstances surrounding the termination
of the Executive’s employment and whether the Employers and the Executive
intended for the Executive to provide significant services for the Employers
following such termination. A termination of employment will not be
considered a Separation from Service if:
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(i)
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the
Executive continues to provide services as an employee of the Employers
at
an annual rate that is twenty percent or more of the services rendered,
on
average, during the immediately preceding three full calendar years
of
employment and the annual remuneration for such services is twenty
percent
(20%) or more of the average annual remuneration earned during
the final
three full calendar years of employment,
or
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(ii)
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the
Executive continues to provide services to the Employers in a capacity
other than as an employee of the Employers at an annual rate that
is
twenty percent or more of the services rendered, on average, during
the
immediately preceding three full calendar years of employment and
the
average annual remuneration earned during the final three full
calendar
years of employment.
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(m) Specified
Employee. Pursuant to Code Section 409A, a Specified
Employee shall mean a key employee (as defined in Section 416(i) of the Code
without regard to paragraph 5 thereof) of the Employers if any stock of the
Company is publicly traded on an established securities market or
otherwise.
2. Term
of Employment.
(a) Each
of the Company and the Bank hereby employs the Executive as President and
Chief
Executive Officer of the Company and the Bank, and the Executive hereby accepts
said employment and agrees to render such services to the Employers, on the
terms and conditions set forth in this Agreement. The term of
employment under this Agreement shall be for a term of three years, commencing
on the date of this Agreement, unless such term is extended as provided in
this
Section 2. On the annual anniversary of the date first above written
and each annual anniversary thereafter, the term of this Agreement shall
automatically be extended for an additional one-year without the need for
notification to be given by the Board of Directors of each of the Employers
of
their approval of such extension. If either the Executive on the one
hand, or the Company or the Bank on the other hand, gives written notice
to the
other party or parties hereto of such party’s or parties’ election not to extend
the term, with such notice to be given not less than ninety (90) days prior
to
any such anniversary date, then this Agreement shall terminate at the conclusion
of its remaining term. References herein to the “Term of Employment” shall refer
both to the initial term and successive terms.
(b) During
the Term of Employment, the Executive shall perform such executive services
for
the Employers as may be consistent with Executive’s titles and such executive
services which are from time to time assigned to Executive by the Employers’
respective Boards of Directors. The Executive shall devote
Executive’s entire business time, attention, skill and energy exclusively to the
business of the Employers. The Executive shall not engage or prepare
to engage in any other business activity, whether or not such business activity
is pursued for gain, profit or other economic or financial advantage; provided,
however, that the Executive may engage in appropriate civic, charitable or
religious activities and devote a reasonable amount of time to private
investments or boards or other activities provided that such activities do
not
interfere or conflict with the Executive’s responsibilities and are not or not
likely to be contrary to the Employers interests
3. Compensation
and Benefits.
(a) The
Employers shall compensate and pay the Executive for services during the
term of
this Agreement at a minimum base salary of $375,000 per
year (“Base Salary”), which may be increased from time to time in such amounts
as may be determined by the Board of Directors of the Employers and may not
be
decreased without the Executive's express written consent. The
Executive’s Base Salary shall be paid in periodic installments (not less than
monthly) in accordance with the general payroll practices of the Employers,
as
in effect from time-to-time.
(b) This
Agreement shall have no impact on, and Executive shall continue to be entitled
to all benefits set forth in, that certain Salary Continuation Agreement
between
Executive and the Bank dated May 17, 2006. In addition, during the
term of this Agreement, the Executive shall be entitled to participate in
and
receive the benefits of any pension or other retirement benefit plan, profit
sharing, stock option, employee stock ownership, or other plans, benefits
and
privileges given to employees and executives of the Employers, to the extent
commensurate with Executive’s then duties and responsibilities as fixed by the
Boards of Directors of the Employers.
(c) Executive
shall be entitled to receive all benefits and conditions of employment generally
available to other executives of Employers, including, without limitation,
sick
leave, disability, accident, life, hospitalization, medical and dental
insurance, paid holidays, and participation in any pension, profit sharing
or
other retirement plan pursuant to the terms of said plans. Employers
shall obtain life insurance for Executive in the amount of $1,500,000, with
the
beneficiary or beneficiaries of said life insurance to be designated by
Executive.
(d) Executive
shall accrue paid vacation at the rate of three weeks per year and paid sick
leave at the rate of two hours per pay period. Except as stated
herein, the terms and conditions of Executive’s vacation and sick pay shall be
governed by Employer’s Employee Handbook, as amended from
time-to-time. The Executive shall not be entitled to receive any
additional compensation from the Employers for failure to take a vacation,
nor
shall the Executive be able to accumulate unused vacation time from one year
to
the next, except to the extent authorized by the Board of Directors of the
Employers.
(e) During
the term of this Agreement, Executive shall receive the use of an automobile
paid for by the Company.
(f) Executive
shall be eligible for a discretionary performance bonus not to exceed 125%
of
Executive’s Base Salary, based on individual performance and overall performance
of the Employers. The criteria for determining eligibility and the
amount of any bonus shall be in the discretion of the Compensation Committee
of
the Employer’s Board of Directors. Such bonus, if any, shall be paid
between January 1 and March 15 following the year during which performance
is
measured.
(g) The
Executive shall be required to obtain a physical examination not less than
annually during the Term of Employment which shall be paid for by the
Employer.
4. Expenses.
The Employers shall reimburse the Executive or otherwise provide for or pay
for
all reasonable expenses incurred by the Executive in furtherance of or in
connection with the business of the Employers, including, but not by way
of
limitation, traveling expenses, subject to such reasonable documentation
and
other limitations as may be established by the Boards of Directors of the
Employers. If such expenses are paid in the first instance by the Executive,
the
Employers shall reimburse the Executive therefore.
5. Termination.
(a) The
Employers shall have the right, at any time upon prior Notice of Termination,
to
terminate the Executive's employment hereunder for any reason, including,
without limitation, termination for Cause or Disability, and the Executive
shall
have the right, upon prior Notice of Termination, to terminate Executive’s
employment hereunder for any reason.
(b) In
the event that (i) the Executive’s employment is terminated by the Company for
Cause, (ii) the Executive dies or (iii) the Executive terminates his employment
hereunder other than for Disability or Good Reason, the Executive shall have
no
right pursuant to this Agreement to compensation or other benefits for any
period after the applicable Date of Termination or death other than for Base
Salary accrued through the Date of Termination or death. To the
extent that Executive voluntarily terminates his employment with either one
of
the Employers, he shall be deemed to have voluntarily terminated his employment
with the other Employer.
(c) In
the event that the Executive's employment is terminated as a result of
Disability during the term of this Agreement, the Executive shall receive
the
lesser of (i) Executive’s existing Base Salary as in effect as of the Date of
Termination, multiplied by one year or (ii) Executive’s Base Salary for the
duration of the Term of Employment. In the event of the Executive's
death during the term of this Agreement, the Executive's estate shall receive
the lesser of (i) Executive’s existing Base Salary as in effect as of the date
of Executive’s death, multiplied by one year or (ii) Executive’s Base Salary
through the end of the Term of Employment. Payment pursuant to this
Subsection (c) shall be paid to the Executive or Executive’s estate within sixty
(60) days after the Date of Termination.
(d) In
the event that the Executive's employment is terminated (i) by the Employers
for
other than Cause, Disability, or the Executive's death or (ii) by the Executive
(a) due to a material breach of this Agreement by the Employers, or (b) for
Good
Reason, then the Employers shall, subject to Section 6 hereof, if applicable,
provide the benefits described in subparagraphs (A) and (B) of this Section
6(d). Such a termination shall be deemed an involuntary termination
if the breach or Good Reason basis for termination has not been cured within
thirty (30) business days after a written notice of non-compliance has been
given by the Executive to the Employers, such written notice has been given
no
more than ninety (90) days after the initial occurrence of the breach or
the
Good Reason basis for termination, and the termination occurs within two
(2)
years following the initial occurrence of the breach or the Good Reason basis
for termination.
(A) Pay
to the Executive a cash severance amount equal to the Executive's Base Salary
as
in effect immediately prior to the Date of
Termination, plus his incentive bonus for the previous
year multiplied by three (3) years, less taxes and other required withholding
(“Severance Pay”). Such Severance Pay shall be paid in a lump sum on
the first business day of the month following the Date of
Termination. Nothwithstanding the foregoing, no such Severance Pay
will be paid to Executive unless the Executive has undergone a Separation
from
Service.
(B) Maintain
and provide for a period ending at the earlier of (i) the third anniversary
of
the Date of Termination or (ii) the date of the Executive's full-time employment
by another employer, at no cost to the Executive, the Executive's continued
participation in all group insurance, life insurance, health and accident,
disability and other employee benefit plans, programs and arrangements in
which
the Executive was entitled to participate immediately prior to the Date of
Termination (other than any stock option or other stock compensation plans
or
bonus plans of the Employers), provided that in the event that Executive's
participation in any such plan, program or arrangement is barred, the Employers
shall arrange to provide Executive with benefits substantially similar to
those
Executive was entitled to receive under such plans, programs and arrangements
prior to the Date of Termination.
(e) In
receiving any payments pursuant to this Section 5, the Executive shall not
be
obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to the Executive hereunder, and such amounts shall
not be
reduced or terminated whether or not the Executive obtains other
employment.
(f) Restrictions
on Timing of Distribution. Notwithstanding
any provision of this Agreement to the contrary, if Executive is a Specified
Employee on the Date of Termination and, as a result thereof, Section 409A
of
the Code and the rules promulgated thereunder would so require, payments
pursuant to Subsection (d) of this Section 5 may not commence earlier than
six
(6) months after the Date of Termination. Therefore, in the event
this Subsection (f) is applicable, the payment required pursuant to Subsection
(d) of this Section 5 shall be paid in a lump sum on the first day of the
seventh month following the Date of Termination.
6. Limitation
of Benefits under Certain Circumstances. If the payments and benefits
pursuant to Section 5 hereof, either alone or together with other payments
and
benefits which the Executive has the right to receive from the Employers,
would
constitute a “parachute payment” under Section 280G of the Code, the payments
and benefits payable by the Employers pursuant to Section 5 hereof shall
be
reduced, in the manner determined by the Executive, by the amount, if any,
which
is the minimum necessary to result in no portion of the payments and benefits
payable by the Employers under Section 5 being non-deductible to the Employers
pursuant to Section 280G of the Code and subject to the excise tax imposed
under
Section 4999 of the Code. The determination of any reduction in the payments
and
benefits to be made pursuant to Section 5 shall be based upon the opinion
of
independent counsel selected by the Employers’ independent public accountants
and paid by the Employers. Such counsel shall be reasonably acceptable to
the
Employers and the Executive; shall promptly prepare the foregoing opinion,
but
in no event later than thirty (30) days from the Date of Termination; and
may
use such actuaries as such counsel deems necessary or advisable for the purpose.
Nothing contained herein shall result in a reduction of any payments or benefits
to which the Executive may be entitled upon termination of employment under
any
circumstances other than as specified in this Section 6, or a reduction in
the
payments and benefits specified in Section 5 below zero.
7. Restrictions
Respecting Confidential Information and Non-Solicitation
(a) The
Executive acknowledges and agrees that by virtue of the Executive's position
and
involvement with the business and affairs of the Employers, the Executive
will
develop substantial expertise and knowledge with respect to all aspects of
the
Employers’ business, affairs and operations and will have access to all
significant aspects of the business and operations of the Employers and to
Confidential and Proprietary Information.
(b) The
Executive hereby covenants and agrees that, during the term of employment
and
thereafter, unless otherwise authorized by the Employers in writing, the
Executive shall not, directly or indirectly, under any circumstance: (i)
disclose to any other person or entity (other than in the regular course
of
business of the Employers) any Confidential and Proprietary Information,
other
than pursuant to applicable law, regulation or subpoena or with the prior
written consent of the Employers; (ii) act or fail to act so as to impair
the
confidential or proprietary nature of any Confidential and Proprietary
Information; (iii) use any Confidential and Proprietary Information other
than
for the sole and exclusive benefit of the Employers; or (iv) offer or agree
to,
or cause or assist in the inception or continuation of, any such disclosure,
impairment or use of any Confidential and Proprietary Information. Following
the
term of employment, the Executive shall return all documents, records and
other
items containing any Confidential and Proprietary Information to the Employers
(regardless of the medium in which maintained or stored).
(c) While
the Executive is employed by the Employers and for two (2)
years after the Date of Termination, the Executive shall
not hire or solicit or attempt to solicit for hire a Covered Employee, encourage
another person to hire a Covered Employee, or otherwise seek to adversely
influence or alter such Covered Employee’s relationship with the Employers or
any of the Employers’ Affiliates (except during the Executive’s employment with
the Employers, when acting on the good faith belief that ending the Covered
Employee’s employment would be in the Employers’ best interest). A “Covered
Employee” shall be any person who has been employed by the Employers or any of
the Employers’ Affiliates in which Executive was directly involved or had access
to Confidential and Proprietary Information at any time within the twelve
(12)
months prior to the date of any action prohibited by the preceding sentence
occurs.
(d) The
Executive acknowledges that as a result of Executive’s employment with the
Employers, Executive has held and will continue to hold a position of the
highest trust in which Executive comes to know the Employers’ employees, its
customers and its Confidential and Proprietary Information. The
Executive agrees that the provisions of Section 7 (c) are necessary to protect
the Employers’ legitimate business interests. The Executive warrants
that these provisions will not unreasonably interfere with Executive’s ability
to earn a living or to pursue Executive’s occupation after Executive’s
employment ends for any reason. Executive agrees to promptly notify
the Employers of the name and address of any Person or entity to which Executive
provides services during the Covered Period and authorizes the Employers,
after
consultation with Executive as to the form and content of any such notice,
to
notify that entity of Executive’s obligations under this Agreement.
(e) The
parties agree that nothing in this Agreement shall be construed to limit
or
negate the common law of torts, confidentiality, trade secrets, fiduciary
duty
and obligations where such laws provide the Employers with any broader, further
or other remedy or protection than those provided herein.
(f) Because
the breach of any of the provisions of this Section 7 will result in immediate
and irreparable injury to the Employers for which the Employers will not
have an
adequate remedy at law, the Employers shall be entitled, in addition to all
other rights and remedies, to seek a degree of specific performance of the
restrictive covenants contained in this Section 7 and to a temporary and
permanent injunction enjoining such breach, without posting bond or furnishing
similar security.
8. Cooperation
in Legal
Proceedings. After
the Date of Termination, the Executive agrees to reasonably cooperate with
the
Employers and any of their Affiliates in the defense or prosecution of any
claims or actions that may be brought against or on behalf of the Employers
or
their Affiliates, which relate to events or occurrences that transpired while
the Executive was employed by the Employers. The Executive’s
reasonable cooperation in connection with such claims or actions shall include,
but not be limited to, being available to meet with counsel to prepare for
discovery or trial and to act as a witness on behalf of the Employers or
any of
their Affiliates. The Executive also agrees to reasonably cooperate
with the Employers and any of their Affiliates in connection with any
investigation or review of any federal, state, or local regulatory authority
as
any such investigation or review relates to any acts or omissions that
transpired while the Executive was employed by the Employers. The
Executive understands that in any legal action, investigation, or review
covered
by this Section 8 that the Employers expects the Executive to provide only
accurate and truthful information or testimony. The Employers will
pay expenses necessarily and reasonably incurred by the Executive in complying
with this Section.
9. Work
Product. The Executive acknowledges that all inventions
innovations, improvements, developments, methods, designs, analyses, drawings,
reports and all similar or related information (whether or not patentable)
which
relate to the Employers or their Affiliates, research and development or
existing or future products or services and which are conceived, developed
or
made by the Executive while employed by the Employers and their Affiliates
(“Work Product”) belong to the Employers or such Affiliates (as
applicable). The Executive shall promptly disclose such Work Product
to the Boards of Directors of the Employers and perform all actions reasonably
requested by the Boards of Directors (whether during or after the Executive’s
employment) to establish and confirm such ownership (including, without
limitation, executing assignments, consents, powers of attorney and other
instruments).
10. Return
of
Property. On
and after the Date of Termination for any reason, or at any time during the
Executive’s employment, on the request or direction of the Employers, the
Executive will immediately deliver to the Employers any or all equipment,
property, material, Confidential and Proprietary Information, Work Product
or
copies thereof which are owned by the Employers and are in the Executive’s
possession or control. This includes documents or other information
prepared by the Executive, on Executive’s behalf or provided to the Executive in
connection with the Executive’s duties while employed by the Employers,
regardless of the form in which such document or information are maintained
or
stored, including computer, typed, written, electronic, audio, video,
micro-fiche, imaged, drawn or any other means of recording or storing documents
or other information. The Executive hereby warrants that the
Executive will not retain in any form such documents, Confidential and
Proprietary Information, Work Product or other information or copies
thereof. The Executive may retain a copy of this Agreement and any
other document or information describing any rights the Executive may have
after
the termination of the Executive’s employment.
11. Dispute
Resolution.
The Executive and the Employers agree that arbitration in accordance
with the
Federal Arbitration Act and the Dispute Resolution Procedures set forth in
Attachment A to this Agreement shall be the exclusive means for final resolution
of any dispute between the parties arising out of or relating to the Executive’s
employment or this Agreement, except (1) for workers’ compensation and
unemployment claims; (2) when injunctive relief is necessary to preserve
the
status quo or to prevent irreparable injury; and (3) any claims arising from
or
relating to Section 7 of this Agreement. Injunctive relief may be
sought only from any court of competent jurisdiction located in Orange County,
California and the Executive consents to venue and personal jurisdiction
in any
such court. The parties hereto agree that the arbitration
provided for hereunder shall be conducted by the Judicial Arbitration and
Mediation Services, Inc. (“JAMS”), presently located in Orange County,
California. In the event JAMS is unable or unwilling to conduct the
arbitration provided for under the terms of this Section, or has discounted
its
business, the parties agree that the American Arbitration Association, presently
located in Orange County, California, shall conduct the binding arbitration
referred to in this Section. If any part of this
Agreement is held by an arbitrator or court of competent jurisdiction to
be void
or unenforceable, the remaining provisions shall continue with full force
and
effect. If this Agreement shall be determined by any court or an
arbitrator to be unenforceable because of its duration, or the scope of
activities, information or geographic area covered, the parties agree that
this
Agreement shall be interpreted to extend to the maximum period of time or
range
of activities, information or geographic area that would be
enforceable.
12. Withholding. All
payments required to be made by the Employers hereunder to the Executive
shall
be subject to the withholding of such amounts, if any, relating to tax and
other
payroll deductions as the Employers may reasonably determine should be withheld
pursuant to any applicable law or regulation.
13. Assignability. The
Employers may assign this Agreement and their rights and obligations hereunder
in whole, but not in part, to any corporation or other entity with or into
which
the Employers may hereafter merge or consolidate or to which the Employers
may
transfer all or substantially all of their respective assets, if in any such
case said corporation or other entity shall by operation of law or expressly
in
writing assume all obligations of the Employers hereunder as fully as if
it had
been originally made a party hereto, but may not otherwise assign this Agreement
or its rights and obligations hereunder. The Executive may not assign or
transfer this Agreement or any rights or obligations hereunder.
14. Notice. For
the purposes of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been
duly
given when delivered or mailed by certified or registered mail, return receipt
requested, postage prepaid, addressed to the respective addresses set forth
on
the signature page hereto. Any notice, request, demand or other communication
delivered or sent in the manner aforesaid shall be deemed given or made (as
the
case may be) upon the earliest of (a) the date it is actually received, (b)
the
business day after the day on which it is delivered by hand, (c) the business
day after the day on which it is properly delivered to Federal Express (or
a
comparable overnight delivery service), or (d) the third business day after
the
day on which it is deposited in the United States mail. The Employers or
the
Executive may change their respective addresses by notifying the other party
or
parties of the new addresses in any manner permitted by this Section
14.
15. Amendment;
Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed
to
in writing and signed by the Executive and such officer or officers as may
be
specifically designated by the Boards of Directors of the Employers to sign
on
their behalf. No waiver by any party hereto at any time of any breach by
any
other party hereto of, or compliance with, any condition or provision of
this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior
or
subsequent time.
16. Governing
Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the United States where applicable
and otherwise by the substantive laws of the California, without regard to
any
conflicts of laws provisions thereof.
17. Nature
of Obligations. Nothing contained herein shall create or require the
Employers to create a trust of any kind to fund any benefits which may be
payable hereunder, and to the extent that the Executive acquires a right
to
receive benefits from the Employers hereunder, such right shall be no greater
than the right of any unsecured general creditor of the Employers.
18. Headings.
The section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of
this Agreement.
19. Validity.
The invalidity, illegality or unenforceability of any provision
of this
Agreement, in whole or in part, shall not affect the validity, legality or
enforceability of any other provisions of this Agreement, which shall remain
in
full force and effect.
20. Counterparts.
This Agreement may be executed in one or more counterparts, each
of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
21. Regulatory
Prohibition and Required Provisions.
(a) Notwithstanding
any other provision of this Agreement to the contrary, any payments made
to the
Executive pursuant to this Agreement, or otherwise, are subject to and
conditioned upon their compliance with Section 18(k) of the Federal Deposit
Insurance Act (“FDIA”) (12 U.S.C. §1828(k), and the regulations promulgated
thereunder, including 12 C.F.R. Part 359. Furthermore, following such
termination for Cause, the Executive will not, directly or indirectly,
participate in the affairs or the operations of the Employers.
(b) If
Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the Bank’s affairs by a notice served under
Section 8(e)(3) or 8(g)(1) of the FDIA, 12 U.S.C. § 1818(e)(3) or (g)(1), the
Bank’s obligations under this contract shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the charges in
the notice are dismissed, the Bank may in its discretion (i) pay Executive
all
or part of the compensation withheld while their contract obligations were
suspended; and (ii) reinstate (in whole or in part) any of the obligations
which
were suspended.
(c) If
Executive is removed and/or permanently prohibited from participating in
the
conduct of the Bank’s affairs by an order issued under Section 8(e)(4) or
8(g)(l) of the FDIA, 12 U.S.C. § 1818(e)(4) or (g)(l), all obligations of the
Bank under this contract shall terminate as of the effective date of the
order,
but vested rights of the contracting parties shall not be affected.
(d) If
the Bank is in default as defined in Section 3(x)(l) of the FDIA, 12 U.S.C.
§
1813(x)(l) all obligations of the Bank under this contract shall terminate
as of
the date of default, but this paragraph shall not affect any vested rights
of
the contracting parties.
(e) All
obligations of the Bank under this contract shall be terminated, except to
the
extent determined that continuation of the contract is necessary for the
continued operation of the institution, by the Federal Deposit Insurance
Corporation (“FDIC”), at the time the FDIC enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in Section
13(c) of the FDIA, 12 U.S.C. § 1823(c).
22. Entire
Agreement. This Agreement embodies the entire agreement between the
Employers and the Executive with respect to the matters agreed to herein.
All
prior agreements between the Employers and the Executive with respect to
the
matters agreed to herein are hereby superseded and shall have no force or
effect.
[Signature
page follows]
IN
WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
PACIFIC
PREMIER BANCORP, INC.
By:
Name:
Title:
Address:
0000
Xxxxxxxxx Xxxxxx
0xx
Xxxxx
Xxxxx
Xxxx, XX 00000
PACIFIC
PREMIER BANK
By:
Name:
Title:
Address:
0000
Xxxxxxxxx Xxxxxx
0xx
Xxxxx
Xxxxx
Xxxx, XX 00000
EXECUTIVE
By:
Name: Xxxxxx
Xxxxxxx
Address:
00000
Xxxxxxxxx Xxxxx
Xxxxx
Xxx, XX 00000
Attachment
A
DISPUTE
RESOLUTION PROCEDURES
The
parties agree to make a good faith effort to informally resolve any dispute
before submitting the dispute to be resolved in accordance with the following
procedures (“Procedures”):
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A.
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The
party claiming to be aggrieved (“Claimant”) shall furnish to the other a
written statement of the grievance, all Persons whose testimony
would
support the grievance, and the relief requested or
proposed. The written statements must be delivered to the other
party within the time limits for bringing an administrative or
court
action based on that claim.
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B.
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If
the other party does not agree to furnish the relief requested
or
proposed, or otherwise does not satisfy the demand of the Claimant
within
30 days and the Claimant wishes to pursue the issue, the Claimant
shall
give notice to the other of the Claimant’s demand that the dispute be
submitted to non-binding mediation before a mediator jointly selected
by
the parties or the parties cannot agree on a mediator selected
from a list
provided by the American Arbitration Association. Such
mediation should occur within 90 days of the demand for
mediation.
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C.
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If
the dispute is not resolved in mediation, the Claimant shall request
arbitration of the dispute by giving written notice to the other
party
within 30 days after mediation. The parties will attempt to agree
on a
mutually acceptable arbitrator and, if no agreement is reached,
the
parties will request a list of nine arbitrators from the American
Arbitration Association or such other arbitration firms as agreed
and
select by alternatively striking names. The arbitration will be
conducted consistent with American Arbitration Association’s National
Rules for Resolution of Employment Disputes (“Rules”) that are in effect
at the time of the arbitration. If there is any conflict
between those Rules and the Procedures, the Procedures will
govern. The arbitrator shall have authority to decide whether
the conduct complained of under Section A above violates the legal
rights
of the parties. In any such arbitration proceeding, any hearing
must be supported by written findings of fact and conclusions of
law. The arbitrator’s findings of fact must be supported by
substantial evidence on the record as a whole, and the conclusions
of law
and any remedy must be provided for by and consistent with the
laws of
California and federal law. The arbitrator shall have no
authority to add to, modify, change or disregard any lawful term
of the
Agreement. The Employers will pay the arbitrator’s fee. Any
award that may result from such arbitration, may be confirmed into
a
judgment from a court and enforced in accordance with applicable
law.
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