EXHIBIT 10.8
EMPLOYMENT AGREEMENT
This Agreement is made by and between The Bank of Hemet, a
corporation (hereinafter referred to as "Employer"), and Xxxxx X. Xxxxxxxxxx
(hereinafter referred to as "Employee") to be effective on and as of April 19,
2001.
RECITALS
A. Employer is a corporation which is engaged in the banking
business at facilities located in Riverside County, California.
B. Employee has experience in the banking industry managing
financial institutions.
C. Employer desires to employ Employee as Executive Vice President
and Chief Operating Officer of Employer upon the terms and conditions
hereinafter set forth. Employee hereby desires to accept employment as Executive
Vice President and Chief Operating Officer upon such terms and conditions.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and undertakings
of the parties as hereinafter set forth, it is agreed:
1. Purpose and Agreement.
The purpose of this Agreement is to define the relationship
between Employer and Employee. Employer hereby employs Employee and Employee
hereby accepts employment by Employer, upon all of the terms and conditions of
this Agreement.
2. Employee's Duties and Authority.
Employer shall employ Employee as Executive Vice President and
Chief Operating Officer, or in such other capacity or capacities as Employer, or
its designee, may from time to time prescribe.
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3. Restrictions on Outside Business Activities.
During his employment, Employee shall devote his full business
time, energy, and ability exclusively to the business and interests of Employer,
and shall not, without Employer's prior written consent, render to others
services of any kind for compensation, or engage in any other business activity
that would materially interfere with the performance of his duties under this
Agreement.
Employee represents to Employer that he has no other outstanding
commitments inconsistent with any of the terms of this Agreement or the services
to be rendered under it.
4. Term and Termination.
a. Employer hereby employs Employee and Employee hereby
accepts such employment for a period of twelve months commencing as of the date
of this Agreement and ending on the first anniversary of such date, unless
earlier terminated pursuant to the terms of this Agreement. This Agreement may
be renewed for successive twelve month terms on mutual agreement of Employer and
Employee.
b. Employer may immediately terminate this Agreement at any
time without notice for cause if Employee commits any act of dishonesty,
discloses confidential information, is guilty of misconduct or gross negligence,
or acts in any way that has a direct, substantial, and adverse effect on
Employer's reputation, or, Employee is the subject of a removal order from a
banking regulatory agency.
c. Employer may immediately terminate this Agreement, and
Employee's employment with Employer, at any time without cause and with or
without notice. Provided that in the event Employer elects to so terminate this
Agreement during the initial term, or any successor term, Employee shall be
entitled to be paid his base monthly salary for the remaining term of this
Agreement as severance pay. Payment of such severance pay may,
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solely at the option of Employer, be made in equal monthly installments, or in
one lump sum.
d. If, at the end of any calendar month during the initial
term or any renewal term of this Agreement, Employee is, and has been, for the
three consecutive full calendar months then ending, or for fifty percent or more
of the normal working days during the six consecutive full calendar months then
ending, unable to perform his duties under this Agreement in his normal and
regular manner, due to mental or physical illness or injury, this Agreement
shall be then terminated.
e. If Employee dies during the initial term or during any
renewal term of this Agreement, this Agreement shall be terminated on the last
day of the calendar month of his death.
f. In the event proceedings for liquidation of Employer are
commenced by a banking regulatory agency, this Agreement shall be terminated
immediately.
g. Employee may terminate this Agreement upon sixty (60) days
written notice to Employer in the event of either of the following:
(1) Employer's breach of any material provision of this
Agreement; or,
(2) Any material changes by Employer in the status,
responsibility or position level of Employee.
h. Upon termination of this Agreement, and except as provided
in subparagraph 4c and paragraph 12, the parties agree that Employee shall be
entitled to receive only compensation accrued but unpaid as of the date of
termination and shall not be entitled to additional compensation of any type
whatsoever. Further, upon such termination, Employee shall immediately return to
Employer any and all property of Employer which he has in his possession or
which he has under his control.
5. Compensation.
a. Employer shall pay Employee a monthly salary of $10,000.00
for all services to be rendered by Employee hereunder. Said salary shall be
payable in accordance with normal payroll practices of Employer.
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b. All compensation paid or payable to Employee under this
Paragraph shall be subject to customary withholding tax and other employment
taxes as required with respect to compensation paid by a corporation to an
employee.
6. Incentive Compensation.
Within thirty days of the end of calendar year 2001, and
the end of the calendar year for each successive term hereof, if any, Employee
will be given a performance evaluation by Employer's Board of Directors, which
shall address his achievement of corporate goals, both quantitative and
qualitative. Based upon this evaluation, the Board of Directors will make a
decision concerning incentive compensation for Employee, if any. The granting of
such compensation and the amount thereof shall be entirely discretionary on the
part of the Board of Directors. Such additional compensation, if any, shall be
paid to Employee no later than sixty days after calendar year end 2001 or the
calendar year end for each successive term hereof, if any, or thirty days after
release of Employer's audited financial statements for any such year, whichever
is later.
7. Vacation, Sick Leave and Other Fringe Benefits.
a. During the term of this Agreement, or any extension
thereof, Employee shall be entitled to accrue paid vacation benefits at the rate
of one and two-thirds days per month, up to a maximum accrual of twenty days. At
such time as Employee has accrued the maximum vacation benefit permitted
hereunder, Employee shall accrue no further vacation benefit unless and until
Employee's vacation benefit account is reduced below the maximum permitted. At
such time, Employee will begin to accrue vacation benefits again subject to the
maximum limitation. To the extent that there is a conflict between the
provisions of this subparagraph and the provisions of vacation policies
generally applicable to Employer's other employees, the provisions of this
subparagraph shall control. It is the intent of the Parties that on at least one
occasion per year, Employee shall take a vacation of no less than ten
consecutive work days.
b. Employee shall be entitled to receive an Employer-paid
executive physical examination at a mutually agreed upon medical facility in
Southern California.
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c. Effective on the first date of employment hereunder,
Employer shall grant Employee an option to purchase five thousand shares of The
Bank of Hemet common stock at the then current market price, pursuant to the
terms of Employer's written Stock Option Plan, the terms of which are
specifically incorporated herein. In addition, it is mutually agreed that, in
the event that Employer or a holding company formed to acquire Employer offers
to acquire common stock of Employer, by means of either a tender offer or a
merger, during the initial term of this agreement, Employee agrees that he will
not tender or sell to Employer or a holding company any shares of common stock
of Employer received from the exercise of the stock option grant referred to
above. Further, Employee agrees that during the term of this agreement, or any
extension thereof, subsequent to the election of S Corporation tax treatment by
Employer, or a holding company having acquired Employer, unless authorized
otherwise by Employer, he will only sell common stock received from the exercise
of the above referenced stock options to an existing shareholder of the common
stock of Employer or a holding company having acquired Employer. To the extent
that a conflict should exist between the provisions of this paragraph and
Employer's written 1994 Stock Option Plan, the provisions of this paragraph
shall control.
d. Employee shall be entitled to receive all other benefits
of employment, including health/life insurance, sick leave, deferred
compensation and stock option plan benefits, generally available to Employer's
other management employees, if any, when and as he becomes eligible for them. In
that regard, Employee shall be eligible to participate in the Employer's group
health/life and 401(k) plans immediately on commencement of employment
hereunder. To the extent that any such benefits are provided to Employee,
whether immediately or otherwise, Employer reserves the right to modify, suspend
or discontinue any and all such benefits, policies and/or practices at any time
without notice to or recourse by Employee so long as such action is taken
generally with respect to all other similarly situated persons and does not
single out Employee.
8. Expense Reimbursement.
During the initial term, and any successor term of this
Agreement, if any, Employer shall pay or reimburse Employee for all ordinary and
reasonable out-of-pocket expenses actually incurred (and, in the case of
reimbursement, paid) by Employee in
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the performance of Employee's services under this Agreement, provided that
Employee submits proof of such expenses, with the properly completed forms as
prescribed from time to time by Employer, no later than 30 days after the end of
the monthly period in which such expenses have been so incurred. Further,
Employer agrees to reimburse Employee for costs and expenses incurred by
Employee for his attendance at conventions, meetings and seminars, as well as
expenses associated with special social marketing events, provided such
expenditures are approved by Employer's Board of Directors in advance. Employer
agrees to reimburse Employee for the cost of Employee's second year tuition in
UCLA's Executive MBA program, pursuant to Employer's existing policy covering
such reimbursement.
9. Files, Records and Proprietary Information.
a. All books, records, files, documents, and reports
concerning Employer and its policies and programs shall belong to and remain the
property of Employer and shall be under and subject to the control of Employer
at all times during and after the term hereof.
b. Employee recognizes that Employee's relationship with
Employer and its subsidiaries is one of high trust and confidence by reason of
Employee's access to and contact with the trade secrets and confidential and
proprietary information of Employer and its subsidiaries including, without
limitation, information not previously disclosed to the public regarding current
and projected revenues, expenses, costs, profit margins and any other financial
and budgeting information; marketing and distribution plans and practices;
business plans, opportunities, projects and any other business and corporate
strategies; product information; names, addresses, terms of contracts and other
arrangements with customers, suppliers, agents and employees of Employer and its
subsidiaries; confidential and sensitive information regarding other employees,
including information with respect to their job descriptions, performance
strengths and weaknesses, and compensation; financial and personal information
regarding Employer's customers; and other information not generally known
regarding the business, affairs and plans of Employer and its subsidiaries
(collectively, the "Proprietary Information"). Employee acknowledges and agrees
that the Proprietary Information is the exclusive property of Employer and its
subsidiaries, and that Employee shall not at any time, either during Employee's
employment with Employer or thereafter, disclose to others, or directly or
indirectly use for Employee's
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own benefit or the benefit of others, any of the Proprietary Information.
c. Employee acknowledges that the unauthorized use or
disclosure of Proprietary Information would be detrimental to Employer and would
reasonably be anticipated to materially impair Employer's value.
d. Employee's undertakings and obligations under the
Paragraph will not apply, however, to any Proprietary Information which: (a) is
or becomes generally known to the public through no action on Employee's part;
(b) is approved for release by written authorization of the Board; or, (c) is
required to be disclosed by law or governmental or court process or order.
e. Upon termination of Employee's employment with Employer or
at any other time upon request, Employee will promptly deliver to Employer all
notes, memoranda, notebooks, drawings, records, reports, written computer code
files and other documents (and all copies or reproductions of such materials) in
Employee's possession or under Employee's control, whether prepared by Employee
or others, which contain Proprietary Information. Employee acknowledges that
this material is the sole property of Employer.
10. Solicitation of Other Employees.
For a period of one year following the termination of
employment hereunder, Employee shall not induce or attempt to induce, directly
or indirectly, any employee of Employer to discontinue employment with Employer
for the purpose of representing a competitor of Employer.
11. Injunction.
Employee is obligated under this Agreement to render
services of a special, unique, unusual, extraordinary, and intellectual
character, which give this Agreement peculiar value. The loss of these services
cannot be reasonably or adequately compensated by damages granted in an action
at law. Accordingly, in addition to other remedies provided by law or this
Agreement, Employer shall have the right during the term or any renewal term of
this Agreement to obtain injunctive relief against the breach
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of this contract by Employee or the performance of services elsewhere by
Employee, or both.
12. Right to Terminate or Assign Agreement.
In the event of a merger in which Employer is not the
surviving entity, or, of a sale of all or substantially all of Employer's
assets, Employer may, at its sole option (1) assign this Agreement and all
rights and obligations under it to any business entity that succeeds to all or
substantially all of Employer's business through that merger or sale of assets
and obtain that business entity's agreement to assume the obligations and
liabilities hereunder, or, (2) on at least thirty days prior written notice to
Employee, terminate this agreement effective on the date of the merger or sale
of assets and pay Employee the balance of Employee's base salary for the then
pending term of this Agreement, either in equal monthly installments or in one
lump sum, solely at the option of Employer.
13. Rights and Obligations After Notice of Termination.
If Employee gives notice of termination of this Agreement under
Paragraph 4g, or if it becomes known that this Agreement will otherwise
terminate in accordance with its provisions, Employer may, in its sole
discretion and subject to its other obligations under this Agreement, relieve
Employee of his duties under this Agreement and assign Employee other reasonable
duties and responsibilities to be performed until the termination becomes
effective.
14. Indemnification by Employer.
a. Employer shall, to the maximum extent permitted by law,
indemnify and hold Employee harmless for any acts or decisions made in good
faith while performing services for Employer. To the same extent, Employer will
pay, and subject to any legal limitations, advance all expenses, including
reasonable attorney fees and costs of court-approved settlements, actually and
necessarily incurred by Employee in connection with the defense of any action,
suit or proceeding and in connection with any appeal, which has been brought
against Employee by reason of his service as an Employee of Employer.
b. The obligations under this Paragraph 14 shall survive the
termination of this Agreement.
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15. Additional Acts.
Each party agrees to perform any further acts and to execute and
deliver any documents which may be reasonably necessary or desirable to carry
out the provisions of this Agreement.
16. Entire Agreement.
a. This Agreement contains the entire agreement between the
parties and supersedes all prior oral and written agreements, understandings,
commitments, and practices between them, including all prior employment
agreements, whether or not fully performed by Employee before the date of this
Agreement. No oral modifications, express or implied, may alter or vary the
terms of this Agreement. No amendments to this Agreement may be made except by a
writing signed by both parties. No Employee or supervisor of Employer is
authorized to alter or vary the terms of this Agreement except by written
agreement signed by the President of Employer. Any representations contrary to
this Agreement, express or implied, written or oral, are hereby disclaimed.
b. Employee acknowledges that he has been afforded the
opportunity to consult with an attorney licensed to practice within the State of
California regarding the terms of this Agreement and has had an opportunity to
fully negotiate those terms with representatives of Employer. Employee
acknowledges that he has not relied on any promise or representation, other than
those contained in this Agreement, to induce him to execute it.
17. Waiver of Breach or Violation Not Deemed Continuing.
The waiver by either party of a breach or violation of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any subsequent breach thereof, nor shall the waiver of any provision hereof
be deemed to be a waiver of any other provision, whether or not similar. Any
waiver of any provision hereof must be written and signed by the party to be
charged to be effective.
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18. Notice.
Any notice to Employer required or permitted under this Agreement
shall be given in writing to Employer, either by personal service or by
registered or certified mail, postage prepaid, addressed to the President of
Employer at its then principal place of business. Any such notice to Employee
shall be given in a like manner and, if mailed, shall be addressed to Employee
at his home address then shown in Employer's files. For the purpose of
determining compliance with any time limit in this Agreement, a notice shall be
deemed to have been duly given (a) on the date of service, if served personally
on the party to whom notice is to be given, or (b) on the second business day
after mailing, if mailed to the party to whom the notice is to be given in the
manner provided in this section.
19. Counterparts.
This Agreement may be executed in two counterparts, each of which
shall be deemed an original and which together shall constitute one and the same
Agreement.
20. No Assignment.
Except as provided in Paragraph 12, this Agreement is personal to
each of the parties hereto and neither party may assign or delegate any of their
rights or obligations hereunder without first obtaining the written consent of
the other party.
21. Choice of Law.
This Agreement is entered into in the County of Riverside, State
of California, and shall be governed by the laws of the State of California.
22. Arbitration.
a. Employee and Employer agree that any legal or equitable
claims or disputes arising out of or in connection with this Agreement will be
settled by binding arbitration. This Agreement applies to the following
allegations, disputes and claims for relief, but is not limited to those listed:
wrongful discharge under statutory law and common law; employment discrimination
based on federal, state or local statute, ordinance, or governmental
regulations; retaliatory discharge or
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other action; compensation disputes; tortious conduct; contractual violations;
ERISA violations; and other statutory and common law claims and disputes,
regardless of whether the statute was enacted or whether the common law doctrine
was recognized at the time this Agreement was signed. The arbitration
proceedings shall be conducted in Riverside, California in accordance with the
arbitration provisions set out in California Code of Civil Procedure section
1280, et seq. in effect at the time a demand for arbitration is made. The
provisions of California Code of Civil Procedure section 1283.05 or its
successor sections are specifically incorporated in and made a part of this
Agreement. Depositions may be taken and discovery may be obtained in any
arbitration under this Agreement in accordance with such sections.
b. One neutral arbitrator shall be used and shall be chosen
by mutual agreement of the parties from the list of arbitrators supplied by the
Administrator of the San Bernardino, California offices of the Judicial
Arbitration and Mediation Services ("JAMS") ("Administrator"). If, within thirty
days after an arbitrable dispute has been identified by either party no
arbitrator has been chosen, a neutral arbitrator shall be assigned to the
dispute by the Administrator. The arbitrator shall issue a written decision and
award which shall be exclusive, final, and binding on both parties, their heirs,
executors, administrators, successors, and assigns and judgment on the award
rendered by the arbitrator may be entered in any court located in Riverside
County, California, having jurisdiction thereof. Each party shall pay its own
attorneys' fees, and the expenses of its or his own witnesses and all other fees
and costs associated with the presentation of his or its case at arbitration.
The fees of the arbitrator and any costs associated with the arbitration hearing
itself, including chargeable costs incurred by the arbitrator, shall be paid by
Employer. By signing this Agreement, Employee and Employer agree to substitute
one legitimate dispute resolution forum (arbitration) for another (litigation),
and thereby waive the right to have these disputes resolved in court. This
substitution involves no surrender of any substantive statutory or common law
benefit, protection or defense.
23. Miscellaneous.
a. The section headings contained in this Agreement are for
convenience only and shall in no manner be construed as part of this Agreement.
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b. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this Agreement shall nevertheless remain in full
force and effect. If any provision is held invalid or unenforceable with respect
to particular circumstances, it shall nevertheless remain in full force and
effect in all other circumstances.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first set forth above.
"Employee"
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/s/ Xxxxx X. Xxxxxxxxxx
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"Employer"
THE BANK OF HEMET
By:
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/s/ Xxxxx X. Xxxxx
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President
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