Exhibit 10.2
AMENDMENT TO EMPLOYMENT AGREEMENT
---------------------------------
THIS AMENDMENT to the Employment Agreement between Union Bank of
California, N.A. (the "Bank") and Xxxxx X. Xxxxxx ("Xx. Xxxxxx") effective as of
January 1, 1998 (the "Agreement") is entered into by and between the Bank and
Xx. Xxxxxx, and such Amendment shall be effective as of May 1, 2005.
WHEREAS, the parties wish to make certain modifications thereto pursuant to
Paragraph 11 of the Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the material
promises and conditions contained in the Agreement and in this Amendment, the
parties agree as follows:
1. The Agreement and all exhibits attached thereto are hereby incorporated
by reference herein and made a part hereof, subject to the specific
modifications set forth herein.
2. Paragraph 1 of the Agreement is hereby amended and restated in its
entirety as follows:
"1. REPRESENTATIONS AND WARRANTIES.
------------------------------
The Bank represents that it is fully authorized to enter into this
Agreement. Xx. Xxxxxx warrants that he is under no employment contract,
bond, confidentiality agreement, or any other obligation which would
violate or be in conflict with the terms and conditions of this Agreement
or encumber his performance of duties assigned to him by the Bank. Xx.
Xxxxxx further warrants that he has not signed or committed to any
employment or consultant duties or other obligations which would divert his
attention from the duties assigned to him by the Bank under this Agreement.
The parties do not intend to include within the meaning of this paragraph
Xx. Xxxxxx'x service at the request of the Bank's Chief Executive Officer
for nonprofit, charitable, or trade associations or on the boards of
directors or other governing bodies of business enterprises unrelated to
the Bank and not in a business competitive with a business of the Bank."
3. Paragraph 2 of the Agreement is hereby amended and restated in its
entirety as follows:
"2. EMPLOYMENT AND DUTIES.
---------------------
Xx. Xxxxxx shall be employed as a Vice Chair of the Bank and its CFO.
Xx. Xxxxxx also shall hold the position of Vice Chair of UNBC; however, Xx.
Xxxxxx shall not be a director of UNBC's Board of Directors pursuant to
this Agreement. Xx. Xxxxxx hereby accepts such employment. Xx. Xxxxxx shall
devote his time, ability, attention, energy, knowledge and skill solely and
-1-
exclusively to performing all reasonable duties as a Vice Chair and CFO as
assigned to him by the Bank's Chief Executive Officer."
4. Paragraph 3 of the Agreement is hereby amended and restated in its
entirety as follows:
"3. BASE SALARY.
-----------
In consideration for Xx. Xxxxxx'x services to the Bank during the time
period in which this Agreement is effective, Xx. Xxxxxx shall receive,
retroactive to March 15, 2005, a base salary of Four Hundred Fifty Thousand
Dollars ($450,000.00) per annum to be paid in equal installments as per the
Bank's salary administration program, and subject to annual review and
increases at the discretion of the Executive Compensation and Benefits
Committee of the Bank's Board of Directors, the Bank's Board of Directors
(the "Board") or any other committee constituted by the Board for this
purpose (as applicable, the "Committee"). Annual base salary shall be
competitive with the annual base salaries for comparable executive
positions at banks of similar size and focus, as determined at the
discretion of the Committee."
5. Paragraph 4(a) of the Agreement is hereby amended and restated in its
entirety as follows:
"a. BONUS. Xx. Xxxxxx shall be entitled to participate in the Bank's
-----
Senior Management Bonus Plan or its successor, subject to the eligibility
requirements and other terms and conditions of such Plan and the
determinations of the administrator of such Plan. Xx. Xxxxxx'x target bonus
under the Senior Management Bonus Plan for 2005 shall be eighty percent
(80%) of base salary, subject to annual review and increases or decreases
at the discretion of the Committee, based on the median annual bonus
targets for comparable executive positions at banks of similar size and
focus (as determined at the discretion of the Committee)."
6. Paragraph 4(b) of the Agreement is hereby amended and restated in its
entirety as follows:
"b. LONG TERM INCENTIVES. Xx. Xxxxxx shall be eligible for long term
---------------------
incentive awards available to policy making officers. Awards may consist of
one or more types of long term incentives, including the grant of stock
options and restricted stock under the UNBC Management Stock Plan or its
successor and the award of performance shares under the UNBC Performance
Share Plan or its successor. Xx. Xxxxxx'x target award for 2005 shall be
valued at two hundred percent (200%) of base salary. Notwithstanding the
preceding sentence, determinations of the amount of any award to Xx. Xxxxxx
shall be made at the discretion of the Committee, subject to annual review
and increases or decreases, based on the median long term incentive targets
for comparable executive positions at banks of similar size and focus (as
determined at the discretion of the Committee)."
-2-
7. Paragraph 4(d) of the Agreement is hereby amended and restated in its
entirety as follows:
"d. SUPPLEMENTAL RETIREMENT BENEFITS. During his employment under this
--------------------------------
Agreement Xx. Xxxxxx shall be a participant under the Bank's Supplemental
Executive Retirement Plan for Policy Making Officers (the "PMO SERP") and
under the Union Bank Executive Supplemental Benefit Plan; the latter of
which is a plan of a predecessor of the Bank and copies of each plan are
attached hereto as Exhibit D. The supplemental plans referred to in the
preceding sentence, together with the Bank's retirement plans now or
hereafter in effect, shall collectively be referred to hereinafter as the
"Retirement Plans."
8. Paragraph 5 of the Agreement is hereby amended and restated in its
entirety as follows:
"5. OUTSIDE ACTIVITIES.
------------------
During the term of this Agreement, and subject to paragraph 1, Xx.
Xxxxxx shall devote his time, ability, attention, energy, knowledge and
skill to the business of the Bank. During the term of this Agreement, Xx.
Xxxxxx shall not, directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, shareholder, corporate officer,
director, or in any other capacity, engage or assist any third party in
engaging in any business competitive with the business of the Bank, UNBC or
their subsidiaries, without the written approval of the Bank's Chief
Executive Officer. Investments in publicly traded corporations through
brokerage accounts or in mutual funds, or depositor/borrower relationships
with other financial institutions are not intended to be covered by this
paragraph. Following his employment with the Bank, Xx. Xxxxxx shall not
engage in unfair competition with the Bank or aid others in any unfair
competition with the Bank. For purposes of this Agreement, "unfair
competition" shall mean a violation by Xx. Xxxxxx of any continuing
obligation he may have pursuant to the Bank's Business Standards of Conduct
regarding the use or disclosure of the Bank's confidential information, but
shall not include use or disclosure by Xx. Xxxxxx of the Bank's
confidential information where such information has become generally known
in the financial services industry other than through an improper act of
Xx. Xxxxxx or Xx. Xxxxxx'x legally required reporting or disclosure of such
information."
9. Paragraph 6(f) is hereby amended and restated in its entirety as
follows:
"f. BY XX. XXXXXX FOR CAUSE. Subject to the further conditions next
-----------------------
described, Xx. Xxxxxx may terminate this Agreement by giving sixty (60)
days' written notice to the Bank if he has incurred a material reduction of
his duties, title or responsibility (including Xx. Xxxxxx no longer serving
in the capacity or under the title of CFO but excluding Xx. Xxxxxx no
longer serving under the title of Vice Chair), a reduction in his annual
base salary or a reduction in his overall compensation package below the
median package for comparable executive positions at banks of similar size
and
-3-
focus (this peer group to be determined at the discretion of the
Committee). In order to elect to terminate this Agreement pursuant to this
subparagraph 6(f), Xx. Xxxxxx must submit the written notice to the Bank
within sixty (60) days of the reduction. Xx. Xxxxxx shall not be entitled
to elect to terminate this Agreement pursuant to this subparagraph 6(f) if
prior to Xx. Xxxxxx'x termination date the Bank corrects the deficiency
upon which Xx. Xxxxxx'x resignation is based. In the event that Xx. Xxxxxx
is entitled to and elects to terminate this Agreement pursuant to this
subparagraph 6(f), (i) he shall be entitled to receive salary and benefits
as set forth in paragraphs 3 and 4 of this Agreement through the effective
date of termination, and (ii) if he has not yet attained age 65 at the time
of his termination of employment and further has, at the time of his
termination of employment, previously executed the "General and Special
Release" (attached hereto as Exhibit A), then in consideration for such
Release, the Bank will provide Xx. Xxxxxx with the salary continuation and
benefits set forth in subparagraphs 6(d)(i)(A), (B), (C), (D) and (E). In
the event Xx. Xxxxxx dies while receiving salary continuation benefits
described in subparagraph 6(d)(i)(A) above, then Xx. Xxxxxx shall have the
remaining salary continuation, if any, paid to his Designated Beneficiary
under Exhibit C attached hereto."
10. A new Paragraph 19 is hereby added to the Agreement as follows:
"19. EFFECT OF DEFERRED COMPENSATION REGULATIONS.
-------------------------------------------
Xx. Xxxxxx and the Bank acknowledge that Xx. Xxxxxx'x receipt of
certain benefits under this Agreement otherwise payable upon the
termination of Xx. Xxxxxx'x employment may be subject to Section 409A of
the Internal Revenue Code or similar laws regulating the payment of
deferred compensation ("Section 409A"), which, if applicable, could require
a delay in the payment of such benefits for a period of at least six (6)
months following Xx. Xxxxxx'x separation from service. Xx. Xxxxxx
acknowledges and agrees that should the Bank in good faith determine that
any such benefits to be provided upon termination to Xx. Xxxxxx pursuant to
this Agreement are subject to Section 409A, the Bank may delay the payment
of such benefits for at least six (6) months (or such other period as may
be applicable), after first notifying Xx. Xxxxxx of its intention to do
so."
11. Except as expressly modified by this Amendment, the terms and
provisions of the Agreement shall remain unchanged and in full force and effect.
12. Any modification to this Amendment shall be effective only if it is in
writing and signed by the parties to be bound thereby.
13. This Amendment (including the Agreement and exhibits to the Agreement
incorporated herein by reference) constitutes the entire agreement between the
parties hereto with respect to the changes to the Agreement provided for in this
Amendment and supersedes all prior or contemporaneous written or verbal
agreements and understandings among the parties in connection with the subject
matter thereof.
-4-
IN WITNESS WHEREOF, the parties have executed this Amendment by their duly
authorized officers or agents.
Dated: 5/25/05 UNION BANK OF CALIFORNIA, N.A.
-----------
By /S/XXXX X. XXXXXX
------------------------------------
Xxxx X. Xxxxxx
Executive Vice President
Dated: 5/25/05 /S/XXXXX X. XXXXXX
----------- -------------------------------------
Xxxxx X. Xxxxxx
-5-
