Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of
September 13, 2001, by and between Commercial Capital Bancorp (the "Holding
Company"), a corporation organized under the laws of the State of Nevada, with
its headquarters office located in the City of Irvine, Orange County,
California, and XXXXX X. XXXXXXXXX, a California resident (the "Employee").
A. The Holding Company has organized a subsidiary federal savings
bank (the "Bank").
B. Per the letter dated September 10, 2001, the Office of Thrift
Supervision ("OTS") has no objection to Holding Company entering into this
Agreement, and therefore, Employee will serve as the Executive Vice President,
Chief Investment Officer and Chief Administrative Officer of the Holding
Company.
On the basis of the foregoing facts and in consideration of the mutual
covenants and agreements contained herein, the parties agree as follows:
1. Term.
(a) Subject to the provisions below, the Holding Company agrees
to employ Employee, and Employee agrees to be employed by the Holding Company,
subject to the terms and conditions of this Agreement, for a term of three (3)
years ("the Term") commencing on the date of this Agreement (the "anniversary
date") unless employment is earlier terminated pursuant to the termination
provisions of this Agreement ("the Employment Period").
(b) Subject to the notice provisions set forth in this
paragraph, the term of this Agreement may be renewed or extended for one (1)
additional year after review and approval by the Board of Directors on the
anniversary date of this Agreement during each calendar year. The term shall not
be extended if either party gives written notice to the other, on or before the
date which is 90 days prior to the anniversary date, that the Agreement shall
not be renewed on the next anniversary date. In the event either party gives the
other written notice as provided in this paragraph, the term of this Agreement
shall thereafter terminate on the next following anniversary date.
2. Duties and Authority.
(a) During the Employment Period, Employee shall devote all his
productive time, ability and attention to the business and affairs of the
Holding Company and its subsidiaries, notwithstanding that, Employee shall not
directly render service of a business, commercial or professional nature to any
other person or organization other than the Holding Company and its subsidiaries
without the consent of the Board of Directors of the Holding Company (the "Board
of Directors"). However, nothing in this paragraph prohibits Employee from, or
requires the Board of Directors to approve or consent to Employee serving as an
advisor
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or Board member of a charitable or nonprofit organization or serving as an
advisor or director of any corporation which does not compete with the business
of the Holding Company, so long as such service does not materially interfere
with the performance of employment duties. Employee agrees that during the
Employment Period he will use his best efforts, skill and abilities to promote
the Holding Company's interests and to serve as the Executive Vice President,
Chief Investment Officer and Chief Administrative Officer of the Holding
Company. Employee shall perform such customary, appropriate and reasonable
executive duties as are normally assigned to the Executive Vice President, Chief
Investment Officer and Chief Administrative Officer at other thrift holding
companies, including such duties as are delegated to him from time to time by
the Board of Directors. Employee shall report directly to the Holding Company's
Chairman and Chief Executive Officer. The Holding Company shall also cause
Employee to be nominated, and management proxies will be voted to elect Employee
as a director of both the Bank and the Holding Company during the entire
Employment Period.
3. Holding Company's Authority.
Employee agrees to observe and comply with the Holding Company's
rules and regulations as adopted by the Board of Directors regarding performance
of his duties and to carry out and to perform orders, directions and policies
stated by the Board of Directors to him periodically, either orally or in
writing.
4. Compensation.
(a) The Holding Company directly, or through one or more of its
subsidiaries, agrees to pay to Employee during each year of this Agreement an
annual base salary of $387,500, beginning on the effective date of this
Agreement and payable in accordance with the Holding Company's standard payment,
policy and subject to such withholding as required by law or policy on the
fifteenth and last day of each month during the term of this Agreement. The base
salary shall be reviewed annually by the Board of Directors, on or before
January 31 of each year for that year, and may be changed by mutual agreement of
the parties.
(b) In addition to a11 other compensation referred to above, the
Holding Company may pay Employee a bonus or bonuses and may grant to Employee
stock options, in either case in such amount as and in such a manner as the
Board of Directors, in its discretion, determines is appropriate. Such
compensation shall be based upon guidelines established by, and reviewed by, the
Board of Directors that takes into consideration all measures of the Holding
Company's performance.
(c) The Holding Company or its subsidiaries shal1 provide a car
allowance of $1,000 per month during the Employment Period.
(d) During the Employment Period, Employee shall be eligible to
participate in any retirement, pension or profit-sharing plan, or similar
employee benefit plan or retirement or bonus program of the Holding Company and
its subsidiaries, to the extent that he is eligible under the provisions of the
plan and commensurate with his position in relationship to other participants
and pursuant to the terms of the plans or programs of the Holding Company and
its subsidiaries.
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(e) Employee shall accrue vacation and sick time ("paid time
off" or "PTO") at the rate of 7.67 hours per semi-monthly pay period (for a
total of 184.00 hours or 23 days per year). Notwithstanding any terms of the
Holding Company's personnel policy to the contrary, any unused PTO shall carry
forward to the next year. Once Employee has accrued, or is deemed to have
accrued, 276 hours of PTO (approximately 34.5 days per year) ("the cap"), he
shall cease to accrue further PTO until such time as accrued PTO falls below the
cap.
(f) The Holding Company agrees to provide medical, dental and
other insurance, including key man life and disability, for Employee on the same
terms as provided for all executive officers of the Holding Company and its
subsidiaries.
5. Reimbursement of Expenses.
The services required by the Holding Company and its subsidiaries
will require Employee to incur business, entertainment and community relations'
expenses and the Holding Company or its subsidiaries hereby agrees to provide
credit cards and charge accounts for Employee's use for such expenses. The
Holding Company or its subsidiaries agrees to reimburse Employee for all
out-of-pocket expenses that are business related, upon submission of appropriate
documentation and approval by the Board of Directors or a committee of it
appointed for such purpose. Such expenses shall include membership fees and dues
to organizations approved by the Board. The Board or a committee thereof shall
review such expenses at least monthly so that reimbursement of appropriate
expenses is not unreasonably delayed. Each expense, to be reimbursed, must be of
a nature qualifying it as a proper deduction on the income tax returns of the
Holding Company as a business expense and not as deductible compensation to
Employee. The records and other documentary evidence submitted by Employee to
the Holding Company or its subsidiaries with each request for reimbursement of
such expenses shall be in the form required by applicable statutes and
regulations issued by appropriate taxing authorities for the substantiation of
such expenditures as deductible business expenses of the Holding Company and not
as deductible compensation to Employee.
6. Confidential Information.
Employee agrees that he shall not, without the prior written
permission of the Holding Company in each case, publish, disclose or make
available to any other person, firm or corporation, either during or after the
termination of this Agreement, any confidential information which Employee may
obtain during the Employment Period, or which Employee may create prior to the
end of the Employment Period relating to the business of the Holding Company and
its subsidiaries, or to the business of any customer or supplier of any of them;
provided, however, Employee may use such information during the Employment
Period for the benefit of the Holding Company and its subsidiaries, Employee
agrees to execute any and all such additional agreements and instruments that
the Holding Company may deem reasonably necessary in order to protect the
confidentiality of such confidential information or otherwise to effectuate the
purpose and intent of this Section 6. Prior to or at the termination of this
Agreement, Employee shall return all documents, files, notes, writings and other
tangible evidence of such confidential information to the Holding Company and
its subsidiaries. This Section 6 shall survive the expiration or termination of
this Agreement. Notwithstanding the
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above, the OTS and other federal agencies will be exempt from any prohibition
regarding disclosure of confidential information.
7. Covenant Not to Solicit Customers or Fellow Employees.
Employee agrees that for a period of eighteen (18) months
following the termination of employment with the Holding Company, he will not
solicit, directly or indirectly divert or attempt to divert for himself or for
any third party, the business of any customer with whom the Holding Company and
its subsidiaries had done business during the preceding one year period.
Employee recognizes and acknowledges that any customer list and financial
information concerning any of the Holding Company's customers, as it may exist
from time to time, is a valuable, special and unique asset of the Holding
Company's business, Employee further agrees not to solicit, directly or
indirectly divert or attempt to divert for himself or for any third party, the
services of any officer or employee of the Holding Company and its subsidiaries
during such l8-month period. Employee agrees to execute any and all such
additional agreements and instruments that the Holding Company may deem
reasonably necessary in order to effectuate the purpose and intent of this
Section 7. This Section 7 shall survive the expiration or termination of this
Agreement.
8. Remedy.
Employee understands that, because of the unique character of the
services to be rendered by Employee hereunder, the Holding Company would not
have any adequate remedy at law for the breach or threatened breach by Employee
of any one or more of the covenants set forth in this Agreement and therefore
expressly agrees that the Holding Company in addition to any other rights or
remedies which may be available to it, shall be entitled to injunctive and other
equitable relief to prevent or remedy a breach of this Agreement by Employee.
9. Termination of Employee Without Cause.
(a) Upon the occurrence of an Event of Termination (as herein
defined) during Employee's term of employment under this Agreement, the
provisions of this Section shall apply.
(b) As used in this Agreement, an "Event of Termination" shall
mean and include any one or more of the following; (i) the termination by the
Holding Company of Employee's full-time employment hereunder for any reason
other than a termination governed by Section 12 below, or Termination for Cause,
as defined in Section l0(b) below; (ii) Employee's termination with good reason
from the Holding Company's employ in accordance with Section 9(c) below upon any
(A) failure to elect or reelect or to appoint or reappoint Employee as Executive
Vice President, Chief Investment Officer and Chief Administrative Officer,
unless consented to by the Employee, (B) a material change in Employee's
function, duties, or responsibilities with the Holding Company or its
subsidiaries, which change would cause Employee's position to become one of
substantially lesser responsibility, importance, or scope from the position and
attributes thereof described in Section 2 above, unless consented to
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by Employee, (C) a relocation of Employee's principal place of employment by
more than 30 driving miles from its location at the effective date of this
Agreement, unless consented to by the Employee, (D) a material reduction in the
benefits and perquisites to Employee from those being provided as of the
effective date of this Agreement, unless consented to by Employee, (E) a
liquidation or dissolution of the Holding Company or its subsidiaries, or (F)
breach of this Agreement by the Holding Company.
Notwithstanding the above, the event of a conservatorship or receivership is
specifically excluded from an Event of Termination.
(c) Upon the occurrence of any event of a type described in
clauses (ii)(A), (B), (C), (D), (E) or (F), of Section 9(b), Employee shall have
the right to terminate with good reason his employment under this Agreement by
delivering written notice to the Holding Company not less than sixty (60) days
following the occurrence of such event, which termination with good reason shall
be effective only if such event shall not be cured within thirty (30) days after
Holding Company's receipt of such notice. The date of any Event of Termination
shall be referred to herein as the "Date of Termination".
(d) Upon the occurrence of an Event of Termination by the
Holding Company, the Holding Company shall pay to Employee an amount equal to
his base salary for the remaining portion of the Term (such payment, the
Severance Payment), as severance pay in lieu of and in substitution for any
other claims for salary and continued benefits hereunder (based on Employee's
base salary and benefits prevailing at the time of termination). At the election
of the Employee, the Severance Payment shall be made to Employee: (a) in a lump
sum on the Date of Termination, or (b) on a semi-monthly basis in approximately
equa1 installments over a period of thirty-six (36) months following the Date of
Termination, or (c) on an annual basis in approximately equal installments over
a period of thirty-six (36) months following the Date of Termination. Payment of
the Severance Payment shall be in addition to all other sums owed to Employee
under applicable law for all periods prior to the Date of Termination,
including, without limitation, sums owed in respect of accrued PTO accrued
bonus, if any, and reimbursable expenses. Notwithstanding anything in this
Agreement to the contrary no bonus shall be deemed to have been accrued unless
and until any such bonus has been duly authorized by the Holding Company's Board
of Directors or a duly authorized committee thereof. Accrued bonuses shall mean
the bonus amount determined in accordance with Section 4(b).
(e) With respect to any stock options issued to the Employee
that were outstanding on the Date of Termination, any options which were not
fully vested and exercisable on the Date of Termination shall automatically
become exercisable upon the Date of Termination, and shall remain exercisable in
full for a period of ninety (90) days following the Communication Date.
(f) Upon the occurrence of an Event of Termination, the Holding
Company will cause to be continued for the Employee and his previously covered
dependents life, medical, dental and disability coverage that the Employee
agrees is substantially equivalent to the coverage maintained by the Holding
Company or its subsidiaries for Employee and his
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dependents prior to the Date of Termination at no cost to the Employee, except
to the extent such coverage may be changed in its application to all employees
of the Holding Company and its subsidiaries. Such coverage shall cease upon the
expiration of the remaining term of this Agreement.
10. Termination of Employee for Cause.
(a) The Holding Company's board of directors may terminate the
Employee's employment at any time, but any termination by the Holding Company's
board of directors other than termination for cause, shall not prejudice the
Employee's right to compensation or other benefits under the contract. The
Employee shall have no right to receive compensation or other benefits for any
period after termination for cause. Termination for cause shall include
termination because of the Employee's personal dishonesty, 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 similar offenses) or final
cease-and-desist order, or material breach of any provision of the contract.
(b) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the Holding Company's affairs by a notice
served under section 8 (e)(3) or (g)(1) of the Federal Deposit Insurance Act
(12 U.S.C. 1818 (e)(3) and (g)(1)) the Holding Company's obligations under
this Agreement shall be suspended as of the date of service unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the Holding
Company may in its discretion (i) pay Employee all or part of the compensation
withheld while its contract obligations were suspended, and (ii) reinstate (in
whole or in part) any of its obligations which were suspended.
(c) If Employee is removed and/or permanently prohibited from
participating in the conduct of the Holding Company's affairs by an order issued
under section 8 (e)(4) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
1818 (e)(4) or (g)(1), all obligations of the Holding Company under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
(d) If the Holding Company is in default (as defined in section
3 (x)(1) of the Federal Deposit Insurance Act), all obligations under this
Agreement shal1 terminate as of the date of default but this paragraph (g) shall
not affect any vested rights of the contracting parties.
(e) All obligations under this Agreement shall be terminated,
except to the extent determined that continuation of the contract is necessary
of the continued operation of the Holding Company:
(i) By the director of the OTS (the "Director") or his or
her designee, at the time the Federal Deposit Insurance Corporation or
Resolution Trust Corporation enters into an agreement to provide assistance to
or on behalf of the Holding Company under the authority contained in 13(C) of
the Federal Deposit Insurance Act; or
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(ii) By the Director or his or her designee, at the time
the Director or his or her designee approves a supervisory merger to resolve
problems related to operation of the Holding Company or when the Holding Company
is determined by the Director to be in an unsafe or unsound condition.
Any rights of the parties that have already vested, however,
shall not be affected by such action.
11. Termination Upon Employee's Death; Effect of Termination on
Other Plans.
Notwithstanding anything herein contained, if Employee shall die,
this Agreement shall terminate one (1) year from the date of Employee's death,
whereupon Employee's estate shall be entitled to receive his salary, accrued
PTO, and any bonus earned up through the date of termination. Such termination
shall not affect any rights which Employee may have at the time of his death
pursuant to any of the Holding Company or its subsidiaries plans or arrangements
for insurance, PTO or stock options, or for any other death benefit, bonus, or
retirement benefit, which accrued rights thereafter shall be enjoyed by
Employee's estate and continue to be governed by the provision of such plans and
arrangements to the extent they are not inconsistent with the terms of this
Agreement.
12. Change in Control.
(a) For purposes of this Agreement, a "Change in Control" of the
Holding Company or its subsidiaries shall mean an event of a nature that: (i)
would be required to be reported in response to Item 1(a) of the current report
on Form 8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); or (ii)
results in a Change in Control of the Holding Company or its subsidiaries within
the meaning of the Home Owners' Loan Act of 1933, as amended, the Federal
Deposit Insurance Act and the Rules and Regulations promulgated by the OTS (or
its predecessor agency), as in effect on the date hereof (provided, that in
applying the definition of change in control as set forth under the rules and
regulations of the OTS, the Board of Directors shall substitute its judgment for
that of the OTS); or (iii) without limitation such a Change in Control shall be
deemed to have occurred at such time as (A) any "person" (as the term is used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of voting securities of the Holding Company or its subsidiaries
representing 20% or more of the Holding Company or its subsidiaries outstanding
voting securities or right to acquire such securities except for any voting
securities of the Bank purchased by the Holding Company and any voting
securities purchased by any employee benefit plan of the Bank or the Holding
Company, or (B) individuals who constitute the Board of Directors on the date
hereof (the "Incumbent Board") cease for any reason to constitute at least a
majority thereof, provided that any person becoming a director subsequent to the
date hereof whose election was approved by a vote of at least three-quarters of
the directors comprising the Incumbent Board, or whose nomination for election
by the Holding Company's stockholders was approved by a Nominating Committee
solely comprised of members who are Incumbent Board members, shall be, for
purposes of this clause (B), considered as though he were a member of the
Incumbent Board, (C) a plan of reorganization,
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merger, consolidation, sale of all or substantially all the assets of the
Holding Company or its subsidiaries or similar transaction occurs or is
effectuated in which the Holding Company or its subsidiaries is not the
resulting entity; provided, however, that such an event listed above will be
deemed to have occurred or to have been effectuated upon the receipt of all
required federal regulatory approvals not including the lapse of any statutory
waiting periods, or (D) a proxy statement shall be distributed soliciting
proxies from stockholders of the Holding Company, by someone other than the
current management of the Holding Company, seeking stockholder approva1 of a
plan of reorganization, merger or consolidation of the Holding Company or its
subsidiaries with one or more corporations as a result of which the outstanding
shares of the class of securities then subject to such plan or transaction are
exchanged for or converted into cash or property or securities not issued by the
Holding Company or its subsidiaries shall be distributed; or (E) a tender offer
is made and accepted for 20% or more of the voting securities of the Holding
Company or its subsidiaries then outstanding.
The change in composition of the Board of Directors occasioned by a
conservatorship or receivership, or by directive of the OTS (or its successor),
should not be construed as a Change in Control for the purposes of triggering
the obligations to render compensation under this Agreement.
(b) If a Change in Control has occurred pursuant to Section
12(a) above or the Board Directors has determined that a Change in Control has
occurred, Employee shall be entitled to the benefits provided in paragraphs (c),
and (d) of this Section 12 upon his subsequent termination of employment at any
time during the term of this Agreement due to: (1) Employee's dismissal or (2)
Employee's voluntary resignation unless such termination is because of his death
or Termination for Cause.
(c) Upon Employee's entitlement to benefits pursuant to Section
12(b), the Holding Company shall pay Employee, or in the event of his subsequent
death, his beneficiary or beneficiaries, or his estate, as the case may be, as
severance pay or liquidated damages, or both a sum equal to the greater of: (1)
the payments due for the remaining term of the Agreement; or (2) three (3) times
Employee's highest annual compensation for the last five (5) years (such
payment, the Severance Payment). Such annual compensation shall include Base
Salary, commissions, bonuses, contributions or accruals on behalf of Employee to
any pension and profit sharing plans, any benefits to be paid or received under
any stock-based benefit plan, severance payments, directors or committee fees
and value of fringe benefits paid or to be paid to the Employee during such
years. At the election of the Employee, the Severance Payment shall be made to
Employee: (a) in a lump sum on the Date of Termination, or, (b) on a
semi-monthly basis in approximately equal installments over a period of
thirty-six (36) months following the, Date of Termination or (c) on an annual
basis in approximately equal installments over a period of thirty-six (36)
months following the Date of Termination. Payment of the Severance Payment
shall be in addition to all other sums owed to Employee under applicable law for
all periods prior to the Date of Termination, including, without limitation,
sums owed in respect of accrued PTO, accrued bonus, if any, and reimbursable
expenses. Notwithstanding anything in this Agreement to the contrary no bonus
shall be deemed to have been accrued unless and until any such bonus has been
duly authorized by the Holding Company's Board of Directors or a duly authorized
committee thereof. Such payments shall not be reduced in the event Employee
obtains other employment following termination of employment.
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(d) Upon the Employee's entitlement to benefits pursuant to
Section 12(b), the Holding Company will cause to be continued for the Employee
and his previously covered dependents life, medical, dental and disability
coverage that the Employee agrees is substantially equivalent to the
coverage maintained by the Holding Company for Employee and his dependents prior
to his termination at no cost to the Employee. Such coverage and payments shall
cease upon the expiration of thirty-six (36) months following the Date of
Termination.
13. Parachute Payment Provision.
In each calendar year that the Employee is entitled to receive payments or
benefits under the provisions of the Employment Agreement, the Holding Company
shall determine if an excess parachute payment (as defined in Section 4999 of
the Internal Revenue Code of 1986, as amended, and any successor provision
thereto, (the "Code")) exists. Such determination shall be made after taking any
reductions permitted pursuant to Section 280G of the Code and the regulations
thereunder. Any amount determined to be an excess parachute payment after taking
into account such reductions shall be hereafter referred to as the "Initial
Excess Parachute Payment". As soon as practicable after a Change in Control, the
Initial Excess Parachute Payment shall be determined. Upon the Date of
Termination following a Change in Control, the Holding Company shall pay the
Employee, subject to applicable withholding requirements under applicable state
or federal law, an amount equal to:
(a) twenty (20) percent of the Initial Excess Parachute Payment
(or such other amount equal to the tax imposed under Section 4999 of the Code);
and
(b) such additional amount (tax allowance) as may be necessary
to compensate the Employee for the payment by the Employee of state and local
and federal income and excise taxes on the payment provided under Clause (a) and
on any payments under this Clause (b). In computing such tax allowance, the
payment to be made under Clause (a) shall be multiplied by the "gross up
percentage" ("GUP"). The GUP shall be determined as follows:
GUP = Tax Rate
-----------------
1-Tax Rate
The "Tax Rate" for purposes of computing the GUP shall be the sum of the
highest marginal federal and state and local income and employment-related tax
rates, including any applicable excise tax rates, applicable to the Employee in
the year in which the payment under Clause (a) is made.
(c) Notwithstanding the foregoing, if it shall subsequently be
determined in a final judicial determination or a final administrative
settlement to which the Employee is a party that the excess parachute payment as
defined in Section 4999 of the Code, reduced as described above, is more than
the Initial Excess Parachute Payment (such different amount being hereafter
referred to as the "Determinative Excess Parachute Payment") then the Holding
Company's independent accountants shall determine the amount (the "Adjustment
Amount") the Holding
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Company must pay to the Employee in order to put the Employee in the same
position as the Employee would have been if the Initial Excess Parachute Payment
had been equal to the Determinative Excess Parachute Payment. In determining the
Adjustment Amount, independent accountants of the Holding Company shall take
into account any and all taxes (including any penalties and interest) paid by or
for the Employee or refunded to the Employee or for the Employee's benefit. As
soon as practicable after the Adjustment Amount has been so determined, the
Holding Company shal1 pay the Adjustment Amount to the Employee. In no event
however, shall the Employee make any payment under this paragraph to the Holding
Company.
(d) Resolution Procedure. For purposes of the foregoing, in the
event there is any disagreement between Employee and the Holding Company as to
whether one or more payments to which Employee becomes entitled under this
Agreement constitute parachute payments under Code Section 280G or as to the
determination of the Initial Excess Parachute Payment or the Determinative
Excess Parachute Payment, such dispute will be resolved as follows:
(i) In the event temporary, proposed or final Treasury
Regulations in effect at the time under Code Section 280G (or applicable
judicial decisions) specifically address the status of any such payment or
the method of valuation therefor, the characterization afforded to such
payment by the Regulations (or such decisions) will, together with the
applicable valuation methodology, be controlling.
(ii) In the event Treasury Regulations (or applicable
judicial decisions) do not address the status of any payment in dispute,
the matter will be submitted for resolution to a nationally-recognized
independent accounting firm mutually acceptable to Employee and the Holding
Company ("Independent Accountant"). The resolution reached by the
Independent Accountant wi1l be final and controlling; provided, however,
that if in the judgment of the Independent Accountant the status of the
payment in dispute can be resolved through the obtainment of a private
letter ruling from the Internal Revenue Service, a formal and proper
request for such ruling will be prepared and submitted, and proper request
for such ruling will be prepared and submitted, and the determination made
by the Internal Revenue Service in the issued ruling will be controlling.
All expenses incurred in connection with the retention of the Independent
Accountant and (if applicable) the preparation and submission of the ruling
request shall be borne by the Holding Company.
(e) Notwithstanding the foregoing, any payments made to Employee
pursuant to this Agreement, or otherwise, are subject to and conditioned upon
compliance with 12 U.S.C. (S) 1828(k) and any regulations promulgated
thereunder.
14. Modification.
This Agreement sets forth the entire understanding of the parties
with respect to the subject matter hereof, supersedes all existing agreements
between them concerning such subject matter, and may be modified only by written
instrument duly executed by each party.
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15. Notices.
Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested or delivered against receipt to the party at the
address set forth following the signature line of this Agreement or to such
other address as the party shall have furnished in writing. Notice to the estate
of Employee shall be sufficient if addressed to Employee as provided in this
Section 15. Any notice or other communication given by certified mail shall be
deemed given at the time of certification thereof, except for a notice changing
a party's address which shall be deemed given at the time of receipt thereof.
16. Dispute Resolution Procedures
Except with respect to any claim for equitable relief (the of
which shall not be subject to the provisions of this Section 16), any
controversy or claim arising out of or this Agreement or the Employee's
employment with the Holding Company or the termination thereof, including, but
not limited to, any claim of discrimination under state or federal law, shall be
settled by binding arbitration in accordance with the Rules of the American
Arbitration Association; and judgment upon the award rendered in such
arbitration shall be final and may be entered in any court having jurisdiction
thereof. Notice of the demand for arbitration shall be filed in writing with the
other party to this Agreement and with the American Arbitration Association. In
no event shall the demand for arbitration be made after the date when the
institution of legal or equitable proceedings based on such claim, dispute or
other matter in question would be barred by the applicable statute of
limitations. This agreement to arbitrate shall be specifically enforceable under
the prevailing arbitration law. Any party desiring to initiate arbitration
procedures hereunder shall serve written notice on the other party. The parties
agree that an arbitrator shall be selected pursuant to these provisions within
thirty (30) days of the service of the notice of arbitration. In the event of
any arbitration pursuant to these provisions, the parties shall retain the
rights of all discovery provided pursuant to the California Code of Civil
Procedure and the Rules thereunder. Any arbitration initiated pursuant to these
provisions shall be on an expedited basis and the dispute shall be heard within
one hundred twenty (120) days following the serving of the notice of arbitration
and a written decision shall be rendered within sixty (60) days thereafter. All
rights, causes of action, remedies and defenses available under California law
and equity are available to the parties hereto and shall be applicable as though
in a court of law. The parties shall share equally all costs of any such
arbitration.
17. Miscellaneous.
(a) This Agreement is drawn to be effective in the State of
California and shall be construed in accordance with California laws, except to
the extent superseded by federal law. The parties specifically acknowledge that
while the restrictions contained in Section 131 of the Federal Deposit Insurance
Corporation Improvement Act of 1991, relating to the payment of bonuses and
increases for senior executive officers of institutions which are deemed
"undercapitalized", do not currently apply to the Bank, such provisions may
affect the terms of this Agreement if during its term the Bank should be deemed
undercapitalized by either the OTS or the FDIC. No amendment or variation of the
terms of this Agreement shall be valid unless made in writing and signed by
Employee and a duly authorized representative of the Bank.
11
(b) Any waiver by either party of a breach of any provision of
this Agreement shall not operate as to be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
(c) Employee's rights and obligations under this Agreement
shall not be transferable by assignment or otherwise, such rights shall not be
subject to commutation, encumbrance or the claims of Employee's creditors, and
any attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon and inure to the benefit of the Holding Company
and its successors and those who are its assigns under Section 12.
(d) This Agreement does not create, and shall not be construed
as creating, any rights enforceable by a person not a party to this Agreement
(except as provided in subsection (c) above).
(e) The headings in this Agreement are solely for the
convenience of reference and shall be given no effect on the construction or
interpretation of this Agreement.
(f) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. It shall be governed by
and construed in accordance with the laws of the State of California, without
giving effect to conflict of laws, except where federal law governs.
12
18. Resignation as Director Upon Termination.
Upon termination of this Agreement, Employee, if he is then
serving as a director of the Holding Company, agrees to immediately resign his
position as a director as well as all other positions he may hold until the
Holding Company or any related or affiliated entity by giving written notice
of his resignation to the Chairman of the Board of Directors of the Holding
Company.
IN WITNESS WHEREOF, the Holding Company and Employee have
executed this Agreement to be effective as of the day and year written above.
HOLDING COMPANY: Commercial Capital Bancorp
By: Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
Address: __________________________
__________________________
EMPLOYEE: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxxx
Address: __________________________
__________________________
13
Employment Agreement
Addendum
Effective as of January 1, 2002, compensation for Xxxxx X. Xxxxxxxxx at
Commercial Capital Bancorp will be $412,500.
/s/ Xxxxxxx X. Xxxxxx
------------------------
Xxxxxxx X. Xxxxxx
Chairman & CEO
