EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of October 20, 2005, by and among
PACIFIC STATE BANCORP, a California corporation ("PSBC") /("Employer") and
Xxxxxx X. Xxxxx ("Employee").
WHEREAS, Pacific State Bancorp, a California Corporation, is a Bank holding
company with one subsidiary, to wit: Pacific State Bank, a California banking
corporation ("PSB"); and
WHEREAS, Employee is presently serving as President and Chief Executive Officer
of Employer of both entities; and
WHEREAS, Employer recognizes that the contributions of Employee to the growth
and success of Employer have been and will continue to be substantial and
desires to assure Employer of the continued service of Employee, and Employee
desires to continue in the employment of Employer;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, Employer and Employee agree as follows:
Article 1. Term of Employment.
1.01 Employer employs Employee and Employee hereby accepts employment with
Employer, upon the terms and conditions hereinafter set forth, for a period of
five (5) years commencing on October 1, 2005, and ending on September 30, 2010
subject to the early termination provisions set forth below. The term of this
agreement shall be automatically extended for additional one (1) year period,
unless Employee or Employer gives written notice of non-renewal, not less than
sixty (60) days prior to the end of the prior term.
"Employment Term" Defined
1.02 As used herein, the phrase "employment term" refers to the entire period of
employment of Employee by Employer hereunder, whether for the periods provided
above, or whether terminated earlier as hereinafter provided or extended by
mutual agreement between Employer and Employee.
Article 2. Duties and Obligations of Employee.
Employee shall serve as the President/Chief Executive Officer of Pacific State
Bancorp and of Pacific State Bank. In his capacity as President/CEO he shall
report to the Board of Directors in assuming responsibility for developing and
implementing overall long-range objective, plans and policies, Strategic
Planning, acquisitions, marketing and other major functions of the Company
subject to approval of the Board of Directors. May serve as the principal
representative of the Company with the press, major customers, community and
industry associations, other businesses and regulatory agencies. Serve as voting
member of Bank's Board of Director's Loan Committee (Xx. Xxxxx is the Vice
Chairman of the Loan Committee), Executive Committee and a member of all other
board committees (except Audit and Personnel/Executive Compensation Committee.
Perform such duties as may, from time to time, be reasonably requested of him by
the Board of Directors of Employee, including but not limited to the hiring and
firing of all employees of the Employer. Subject at all times to the policies
set by Employee's Board of Directors.
Devotion to Employer's Business.
2.02 (a) Employee shall devote his full time, ability, and attention to the
business of Employer during the term of this contract.
(b) Employee shall not engage in any other business 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 Employer's
Board of Directors. 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 interfere with the service required
under this agreement.
(c) This agreement shall not be interpreted to prohibit Employee from making
passive personal investments or conduct private business affairs if those
activities do not interfere with the services required under this agreement. It
is recognized that the Employee is an owner of Corfino Homes Inc. with his
spouse Xxxxx Xxxxx, and from time to time, provides professional and financial
support to the company. However, Employee shall not directly or indirectly
acquire, hold, or retain any major interest in any business competing with or
similar in nature to the business of Employer ,which would be considered in
direct conflict with Employer.
Competitive Activities
2.03 During the term of this contract Employee shall not, directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director, or in any other individual or
representative capacity, engage or participate in any business that is in
competition in any manner whatsoever with the business of Employer.
Should Employee leave, by dismissal or voluntarily, the employ of Pacific State
Bancorp, and subsequently engage in any competitive activity with the Company,
Employee shall immediately resign from the Company's Board of Directors.
Uniqueness of Employee's Services
2.04 Employee hereby represents and agrees that the services to be performed
under the terms of this contract 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. Employee therefore expressly agrees that Employer, in addition to
any other rights or remedies that Employer may posses, shall be entitled to
injunctive and other equitable relief to prevent or remedy a breach of this
contract by Employee.
Indemnification for Negligence of Misconduct.
2.05 Employee shall indemnify and hold Employer harmless from all liability for
loss, damage, or injury to persons or property resulting from the negligence or
misconduct of Employee.
2
Disclosure of Information
2.06 Employee shall not either before or after termination of this Agreement,
disclose to anyone any information relating to Employer or any financial
information, trade and business secrets of know-how germane to the business and
operation of Employer. Employee recognizes and acknowledges that any financial
information concerning any of Employer's customers, as it may exist from time to
time, is strictly confidential and is a valuable, special and unique asset of
Employer's business. Employee shall not, either before or after termination of
this Agreement, disclose to anyone said financial information or any part
thereof, for any reason or purpose whatsoever.
Surety Bond.
2.07. The Employee agrees that he will furnish all information and take any
other steps necessary to enable the Employer to obtain or maintain a fidelity
bond conditional on the rendering of a true account by the Employee of all
monies, goods, or other property which may come into the custody, charge, or
possession of the Employee during the term of his employment. The Surety Company
issuing the bond and the amount of the bond must be acceptable to the Employer.
All premiums on the bond are to be paid by the Employer. If Employee cannot
qualify for a surety bond at any time during the term of this Agreement,
Employer shall have the option to terminate this Agreement immediately.
Article 3. Compensation
3.01 (a) As compensation for the services to be performed hereunder, Employee
shall receive a salary at the current rate of $223,084.00 per annum, payable not
less than once a month, during the employment term in monthly amounts of
$18,590.00. Use of a company automobile, Country Club membership, service clubs,
and other private clubs at the expense of the Company. The Employee shall have
the right to participate in all employment benefits and retirement plans. The
Employer will note the following additional compensation terms and benefits.
(b) Employee shall receive such annual adjustments in salary as may be
determined by Employer's Board of Directors in its sole discretion.
(c) Club dues and other sundry benefits paid by the Company such as
educational costs, mileage and expenses incurred on behalf of Pacific State
Bancorp or Pacific State Bank.
Salary Continuation Agreement
3.02 See Addendum A executed and adopted September, 2003, by and between Pacific
State Bancorp, (the "Employer") and Xxxxxx X. Xxxxx, (the "Employee").
Salary Continuation during Disability only
3 .03 If Employee for any reason becomes temporarily or permanently disabled so
that he is unable to perform the duties prescribed herein, Employer agrees to
pay Employee the difference between the amounts paid by State Disability
Insurance of Xxxxxxx'x Compensation benefits and the rate of compensation as
defined in paragraph 3.02 (a), for a period according to the following formula:
(a) The Employee is to utilize all accrued sick leave and vacation prior to
salary continuation formula begins.
3
(b) The Employer will continue salary for a maximum of six (6) months or
Employee's qualification for long-term disability benefits under Employer's paid
insurance program, whichever first occurs.
(c) For purposes of this section "temporarily" shall be defined as follows: the
inability of Employee to perform any work, for Employer or anyone else, in any
capacity". When the Employee is disabled the Employee cannot work for anyone
else without permission of the Board.
Exclusion
3.04 Employer shall have no obligation to make payments for a disability
resulting from the deliberate, intentional actions of Employee, such as, but not
limited to, attempted suicide and chemical dependency of Employee.
Article 4. Incentive Compensation Management Incentive Plan (annually approved)
4.01 Employer agrees to evaluate the performance of the President/CEO with
regard to additional compensation for superior performance. Employer shall
consider the overall performance including growth and profitability of the
Company in determining whether the President/CEO and the Management Team are
entitled to receive added compensation. The basis of granting such added
compensation will be to reward the President/CEO and the Management Team for
outstanding work and to provide an incentive for continued performance. However,
Employer shall not be required to grant added compensation to the President/CEO
and the Management Team. In the event that the Board of Directors establishes a
fund for the purpose of the payment of additional compensation as contemplated,
the President/CEO shall be solely responsible for the distribution of such funds
to the Senior Management Team, subject to ratification by the Board of
Directors. The President/CEO shall not be entitled to receive more than fifty
percent (50%) of the fund.
(a) As soon as practical (annually), the Board of Pacific State Bancorp will
establish the amount of total profit available for incentive compensation. These
decisions will be predicated upon the preceding year's profit performance of the
Bank. Profit performance is defined as after tax profits.
(b)Qualification under Pacific State Bancorp's incentive bonus plan, management
must receive and maintain an aggregate Camel's Rating of (2) from either or both
the Federal Reserve Board or the California Department of Financial
Institutions. Incentive Bonus performance must be verified by the Company's
auditors and approved by the Personnel/Executive Compensation Committee. The
average minimum return on assets to realize a bonus, management must achieve 1%
of average annual assets. Example is provided below as determined in 2004
Pacific State Bancorp Incentive Bonus Plan - Bank only
December 31, 2004
Audited net income $ 3,167,607
Calculation of Minimum Net Income for Pool:
Average Assets per ITI Report 55,503,000
Minimum return on average assets 1%
Floor on net income before bonus calculation $ 1,916,273
-----------
Net income available for bonus pool $ 1,251,335
Bonus pool percentage 20%
Total available bonus pool $ 250,267
-----------
4
Change in Control
4.02(a) In the event of a change in the control of the Company the Employer will
grant to the Employee 5% of the total sale value at close of the transaction
above the book value of the Company. The payment will be in cash or stock of the
acquiring enmity. The assets to be received in the transaction will create a
pool benefiting the three current senior personnel management; with the address
"Employee" receiving at a minimum of 60% of the "Management" pool.
4.02(b) In the event of a change in the control of the Company in which the
Company is not the surviving corporation, this Agreement shall terminate and
Employee shall receive immediate vesting of all of Employee's Stock Options. The
Employee will also, be entitled to one years' salary and health benefits for
employee and family, and the fully vested Boli commencing on the closing date of
the sale or control transfer date. This clause only comes into effect if
employee does not assume the position of President and CEO of the new or
reorganized enmity.
Plan Stock Option
4.03 Employer adopted a Stock Option Plan in 1987, which was amended in 1993.
Employee has been awarded and not yet exercised options as follows (Dates &
Prices vary): 110,000 Management Options Available @ $7.50 per share.
Article 5. Benefits
5.01 Employee shall be entitled to those Employee benefits to be enjoyed by the
general employee benefit package adopted by Employer, for all Employees of
Employer.
5.02 To the extent the general Employee benefit package is different, Employee
shall have the following benefits:
Annual Vacation
5.03 Employee shall be entitled to five- (5) weeks vacation time each year
without loss of compensation. Employee may be absent from his employment for
vacation as long as such leave is reasonable and does not jeopardize his
responsibilities and duties as President/CEO. The length of vacation should not
exceed two (2) weeks without the approval of the Board of Directors. Employee
must take at least two (2) consecutive weeks of vacation as required by the
superintendent of Banks. In the event that Employee is unable for any reason to
take the total amount of vacation time authorized herein during any year, he may
not accrue that time and add it to vacation time for the following year.
Vacation will be granted annually.
5
Medical, Life Insurance Coverage
5.04 Employer shall provide to Employee and his dependents at a nominal cost to
Employee the standard insurance coverage, or other Company paid insurance
program.
Annual Physical
5.05 An annual physical must be taken. Employee shall follow the recommendations
of physicians regarding Employees health. The results of these tests shall be
made available to the personnel committee of the Board of Directors.
Article 6. Business Expenses
6.01 (a) It is understood and agreed by the parties that the services required
for Employer will require Employee to incur entertainment expenses hereby agrees
to and shall pay the Employee in such amounts and at such times as Employee
shall request to meet such expenses.
(b) Employee shall, however, furnish to Employer adequate records and other
documentary evidence required by Federal and State statutes and regulations for
the substantiation of each such expenditure as an income tax deduction or other
records as may be required by the Board of Directors.
(c) Employee is entitled to service club and. other club memberships at the
discretion of both the Employer and Employee.
Article 7. Termination at the Will of Employer or the Regulatory Agencies
7.01 One of the primary needs of the Employer is to maintain flexibility in its
upper management. Employer shall therefore have the right, at Employer's sole
discretion, to terminate the employment of Employee at the will of Employer.
In the event of such termination Employee shall be entitled to severance pay as
herein set forth, the severance pay shall be one full year of Employee's current
annual salary. All health and welfare benefits are to be continued during the
one-year period. As well, as the deferred compensation is to be paid/distributed
to the Employee within six (6) months of termination date.
Termination for Cause
7.02 (a) Statutory Grounds for Termination. This Agreement shall terminate
immediately upon the occurrence of any one of the following events, which are
described in Sections 2920, 2921, 2924 and 2925 of the California Labor Code.
(1) The occurrence of circumstances that make it impossible or impractical for
the business of the Employer to be continued.
(2) The death of the Employee.
(3) The loss by Employee of legal capacity.
(4) The loss by the Employer of legal capacity to contract.
(5) The willful breach of duty by the Employee in the course of his employment,
unless waived by the Employer.
6
(6) The habitual neglect by the Employee of his employment duties unless waived
by the Employer.
(7) The continued incapacity on the part of the Employee under this Agreement,
unless waived by the Employer.
(8) The unsatisfactory performance of duty by Employee as determined solely by
the Board of Directors of Employer, subject to good faith, fair dealing and
reasonableness by Employer and not as a result of arbitrary or capricious acts
by Employer.
A. Effect of Termination for Cause on Compensation. In the event of the
termination of this Agreement prior to the completion of the term of employment
specified herein and for one of the causes enumerated in this paragraph, no
severance pay is due or payable to Employee, except for salary to date of
termination. This should exclude the event of death or incapability.
Article 8. General Provisions
Notices
8.01 Any notices to be given hereunder by either party to the other shall be in
writing and may be transmitted by personal delivery or mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices shall
be addressed to the parties at the addresses listed as follows: Employer:
Principal place of business or Headquarters1899 W. March Lane. Employee:
Principal place of business as shown in Employee's Personnel Records1899 W.
March Lane; but each party may change that address by written notice in
accordance with this section. Notices delivered personally shall be deemed
communicated as of the date of actual receipt mailed notices shall be
communicated as of the date of mailing.
Arbitration
8.02 (a) Any controversy between Employer and Employee involving the
construction or application of any of the terms, provision, or conditions of
this agreement shall on the written request of either party served on the other
be submitted to arbitration. Arbitration shall comply with and be governed by
the provisions of the California Arbitration Act.
(b) Employer and Employee shall each appoint one person to hear and determine
the dispute. If the two persons so appointed are unable to agree, then those
persons shall select a third impartial arbitrator whose decision shall be final
and conclusive upon both parties.
(c) The cost of arbitration shall be borne by the losing party or in such
proportions as the arbitrators decide.
Attorney's Fees and Costs
8.03 If any action at law or in equity is necessary to enforce or interpret the
terms of this agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs, and necessary expenses in addition to any other relief
to which that party may be entitled. This provision shall be construed as
applicable to the entire contract.
7
Entire Agreement
8.04 This agreement supersedes any and all other agreements, either oral or in
writing, between the parties hereto with respect to the employment of Employee
by Employer and contains all of the covenants and agreements between the parties
with respect to that employment in any manner whatsoever. Each party to this
agreement acknowledges that no other representation, inducements, promises, or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other
agreement, statement, or promise not contained in this agreement shall be valued
or binding on either party.
Modification
8.05 Any modification of this agreement will be effective only if it is in
writing and signed by the party to be changed.
Effect of Waiver
8.06 The failure of either party to insist on strict compliance with any of the
terms, covenants, or conditions of this agreement by the other party shall not
be deemed a waiver of that term, covenant, or condition, 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.
Partially Invalidity
8.07 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 without being impaired or invalidated
in any way.
Law Governing Agreement
8.08 This agreement shall be governed by and construed in accordance with the
laws of the State of California.
Sums Due Deceased Employee
8.09 If Employee dies prior to the expiration of the term of his employment, any
sums not limited to salary, deferred compensation or 401K benefits that may be
due him from Employer under this agreement as of the date of death shall be paid
to Employee's executors, administrators, heirs, personal representative,
successors and assigns.
Validity of Employment Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth above, and, as to Employer, by an officer of Employer duly
authorized by appropriate resolution of its Board of Directors.
This Employment Agreement dated October 1, 2005 supersedes/replaces
the September, 2003 Employment Agreement.
8
Executed on October 20, 2005 at Stockton California
PACFIC STATE BANCORP
By: /s/ XXXXXX X. XXXXX
---------------------------------
Xxxxxx X. Xxxxx
President/Chief Executive Officer
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Xxxxxx X. Xxxxxxx
Personnel Committee, Chair
By: /s/ XXXXXX HAND
---------------------------------
Xxxxxx Hand
Chairman of the Board
9
