EXHIBIT 10.16
EMPLOYMENT AGREEMENT
AGREEMENT by and between California Community Bancshares, Inc. (the
"Company") and Anat Bird (the "Executive") dated as of the 30th day of
January, 2001.
1. EMPLOYMENT PERIOD. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to enter into the employ of the
Company, subject to the terms and conditions of this Agreement for a term of
three (3) years commencing March 1, 2001 and continuing until February 28, 2004.
At the end of each year, this Agreement shall renew for an additional one (1)
year period.
2. TERMS OF EMPLOYMENT.
(a) Position and Duties.
(i) the Executive shall serve as a member of the Board of
Directors of the Company and as President and Chief Executive Officer of the
Company, with such authority, duties and responsibilities as are commensurate
and consistent with such position;
(ii) the Executive's services shall be performed primarily at
the Company's office in Northern California;
(iii) Executive shall devote Executive's full time, ability and
attention to the business of the Company during the term of this Agreement, and
shall neither directly nor indirectly render any services of a business,
commercial or professional nature to any other person, firm, corporation or
organization for compensation without the prior written consent of the Board of
Directors of the Company (the "Board"). Notwithstanding the foregoing, the
Executive shall participate in the winding down of the business of SCB Forms,
Ltd. ("SCB"), a family-owned corporation which conducts meetings for bank
executives. SCB has four meetings scheduled through the end of 2001, which
cannot be cancelled without monetary penalty. In addition, the Executive has
permission to give speeches to members of the financial services industry for
which, from time to time, she may receive an honorarium.
(b) COMPENSATION.
(i) BASE SALARY. The Executive shall receive a base salary at
an annual rate of $400,000 subject to annual review (the "Annual Base Salary").
The Annual Base Salary shall be paid in semi-monthly installments on the
fifteenth (15th) and last working days of each month.
(ii) ANNUAL BONUS. The Executive shall be eligible for an
annual bonus of 100% of Annual Base Salary, as determined by the Compensation
and Personnel Committee of the Board, provided that the Executive shall receive
a bonus of not less than $400,000 on the first anniversary of the date hereof.
(iii) On the date hereof, the Company shall grant the Executive
a nonqualified stock option to acquire 400,000 shares of common stock of the
Company (the "Option"). The Option shall have a per share exercise of $6.64 and
shall vest one-third on the
Bird Employment Agreement
date hereof and in equal one-third installments on the first two anniversaries
of the date of grant, provided however, that the acceleration of exercisability
of the Option shall as provided in the Placer Capital Co. 1999 Stock Option Plan
and the Company's 1999 Stock Option Plan. The Option shall have a ten-year term
and shall remain exercisable for the full term unless the Executive's employment
is terminated by the Company for Cause or by the Executive without Good Reason.
(iv) OTHER EMPLOYEE BENEFIT PLANS. The Executive shall be
entitled to participate in all employee benefit, welfare and other plans,
practices, policies and programs generally applicable to similarly situated
executives of the Company as in effect from time to time.
(v) GENERAL EXPENSES. The Company shall, upon submission and
approval of written statements and bills in accordance with the then-regular
procedures of the Company, pay or reimburse Executive for any and all necessary,
customary and usual expenses (including entertainment) incurred by Executive
while traveling for or on behalf of the Company, and any and all other
necessary, customary or usual expenses incurred by Executive for or on behalf of
the Company in the normal course of business, as determined to be appropriate by
the Company.
3. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give the Executive written notice in accordance with
section 10(d) of this Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive calendar days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
reasonably acceptable to the Executive or the Executive's legal representative.
(b) CAUSE. The Company may terminate the Executive's employment for
Cause or without Cause. For purposes of this Agreement, "Cause" shall mean:
(i) the continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of its affiliated
companies (other than any such failure resulting from incapacity due to physical
or mental illness), after a written demand for substantial performance is
delivered to the Executive by the Board of Directors of the Company (the
"Board") which specifically identifies the manner in which the Board believes
that the Executive has not substantially performed the Executive's duties and
Executive has been given
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sufficient time to substantially perform such duties or substantiate to the
Company that she has already done so; or
(ii) the willful engaging by the Executive in illegal conduct
or gross misconduct, which is materially and demonstrably injurious to the
Company or any of its affiliated companies; or
(iii) conviction of a felony or entry of a guilty or nolo
contendere plea by the Executive with respect to a felony.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board of Directors of the Company or based upon the advice of
counsel for the Company shall be conclusively presumed to be done, or omitted to
be done, by the Executive in good faith and in the best interests of the Company
and its affiliated companies. The cessation of employment of the Executive shall
not be deemed to be for Cause unless and until there shall have been delivered
to the Executive a copy of a resolution duly adopted by the affirmative vote or
not less than two-thirds of the entire membership of the Board of Directors of
the Company at a meeting of such Board called and held for such purpose (after
reasonable notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Board), finding that,
in the good faith opinion of the Board, the Executive is guilty of the conduct
described in subparagraph (i) or (ii) above, and specifying the particulars
thereof in detail.
(c) GOOD REASON. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean in the absence of a written consent of the Executive:
(i) the assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by section 2(a) of this Agreement, or any other action by the
Company which results in a diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive;
(ii) any failure by the Company to comply with any of the
provisions of section 2(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(iii) the Company's requiring the Executive to be based at any
office location outside of Northern California;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this Agreement;
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(v) any failure by the Company to comply with and satisfy
section 9(c) of this Agreement; or
(vi) a Change in Control of the Company. "Change in Control"
shall mean (a) a merger in which the Company is not the surviving corporation a
majority of the capital stock of which is not owned by the majority shareholder
of the Company or an affiliate thereof; (b) a transfer of all or substantially
all of the assets of the Company; or (c) any other corporate reorganization in
which there is a change in ownership of the outstanding shares of the Company
wherein more than fifty percent (50%) of the outstanding shares of the Company
is transferred to any other partnership, limited partnership, corporation,
limited liability company, trust or business entity.
(d) NOTICE OF TERMINATION. Any termination by the Company whether
for Cause or otherwise, or by the Executive for Good Reason or otherwise, shall
be communicated by Notice of Termination to the other party hereto given in
accordance with section 10(d) of this Agreement. For purposes of this Agreement,
a "Notice of Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon; (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated; and (iii) if the Date of Termination (as defined below)
is other than the date of receipt of such notice, specifies the termination date
(which date shall be not more than thirty days after the giving of such notice).
The failure by the Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company, respectively,
from asserting such fact or circumstance in enforcing the Executive's or the
Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein within 30 days of such notice, as the case may
be; (ii) if the Executive's employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination; (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be; and (iv) if Executive terminates her
employment other than for Good Reason, the Date of Termination shall be 30 days
after the date of Notice of Termination, unless Company, at its option, chooses
an earlier date.
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) GOOD REASON; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If,
during the Employment Period, the Company shall terminate the Executive's
employment other than for Cause, death or Disability or the Executive shall
terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination the Executive's Annual Base
Salary for the balance
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of the term plus bonus equal to the Annual Base Salary for the balance of the
term to the extent not theretofore paid ("Accrued Base Salary");
(ii) the Option shall vest and shall become immediately
exercisable and shall remain exercisable until the tenth anniversary of the date
of grant; and
(iii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice, contract or agreement with
the Company or its affiliated companies through the Date of Termination (such
other amounts and benefits shall be hereinafter referred to as the "Other
Benefits").
(b) DEATH. If the Executive's employment is terminated by reason of
the Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement, other than for payment of Accrued Base Salary and the
timely payment or provision of Other Benefits. Accrued Base Salary shall be paid
to the Executive's estate or beneficiary, as applicable, in a lump sum in cash
within 30 days of the Date of Termination. With respect to the provision of
Other Benefits, the term Other Benefits as utilized in this section 4(b) shall
include death benefits as in effect on the date of the Executive's death
generally with respect to similarly situated executives of the Company. In
addition, the Option shall vest and shall become immediately exercisable until
the tenth anniversary of the date of grant.
(c) DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for payment of Accrued Base Salary and the timely payment or provision of
Other Benefits. Accrued Base Salary for the balance of the term shall be paid to
the Executive in a lump sum in cash within 30 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
utilized in this section 4(c) shall include, and the Executive shall be entitled
after the Disability Effective Date to receive, disability benefits as in effect
on the Disability Effective Date generally with respect to similarly situated
executives of the Company. In addition, the Option shall vest and shall become
immediately exercisable and shall remain exercisable until the tenth anniversary
of the date of grant.
(d) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's employment
shall be terminated for Cause or the Executive terminates her employment without
Good Reason during the Employment Period, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay to the
Executive (i) her Annual Base Salary through the Date of Termination and (ii)
Other Benefits, in each case to the extent theretofore unpaid.
5. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the
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Executive under any of the provisions of this Agreement and, such amounts
shall not be reduced whether or not the Executive obtains other employment.
6. ATTORNEYS' FEES. The Company agrees to pay as incurred, to the full
extent permitted by law, all legal fees and expenses which the Executive may
reasonably incur as a result of any contest (regardless of the outcome thereof)
by the Company, the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee of performance
thereof (including as a result of any contest by the Executive about the amount
of any payment pursuant to this Agreement) plus in each case interest on
any delayed payment at the applicable Federal rate provided for in
Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the
"Code").
7. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of the Executive (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this section 7) (a "Payment") would be subject to the excise tax
imposed by section 4999 of the Code or any interest or penalties are incurred by
the Executive with respect to such excise tax (such excise tax, together with
any such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing
provisions of this section 7(a), if it shall be determined that the Executive is
entitled to a Gross-Up Payment, but that the Payments do not exceed 110% of the
greatest amount (the "Reduced Amount") that could be paid to the Executive such
that the receipt of Payments would not give rise to any Excise Tax, then no
Gross-Up Payment shall be made to the Executive and the Payments, in the
aggregate, shall be reduced to the Reduced Amount.
(b) Subject to the provisions of section 7(c), all determinations
required to be made under this section 7, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by such
certified public accounting firm reasonably acceptable to the Executive as may
be designated by the Company (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and the Executive within
15 business days of the receipt of notice from the Executive that there has been
a Payment, or such earlier time as is requested by the Company. All fees and
expenses of the Accounting Firm shall be borne solely by the Company. Any
Gross-Up Payment, as determined pursuant to this section 7, shall be paid by the
Company to the Executive within five days of the later of (i) the due date for
the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Company and the Executive. As a result of the uncertainty in the application
of section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up
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Payments which will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
section 7(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment
by the Company of the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after the Executive is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this section 7(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such
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advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to section 7(c), the Executive becomes entitled to receive
any refund with respect to such claim, the Executive shall (subject to the
Company's complying with the requirements of section 7(c)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the Executive
of an amount advanced by the Company pursuant to section 7(c), a determination
is made that the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in writing of its
intent to contest such denial of refund prior to the expiration of 30 days after
such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
8. CONFIDENTIAL INFORMATION.
(a) Executive acknowledges that in the course of her employment,
Executive will have access to and gain knowledge of Propriety Information of the
Company and its affiliated companies. As used herein, Propriety Information
includes the following:
(i) Customer lists, including information regarding the identity of
clients and client contacts, client accounts, the business needs and
preferences of clients, and information regarding business and
contractual arrangements with clients. As used herein, "Customer List"
is not limited to physical writings or compilations, and includes
information which is contained in or reproduced from the memory of an
Executive.
(ii) Business plans, objectives and strategies, and marketing plans and
information;
(iii) Financial information and pricing information, including
information regarding vendors, suppliers and others doing business with
Company;
(iv) Personnel identities and information regarding skills and
compensation of various Company personnel;
(v) Company manuals and handbooks, computer programs and data;
(vi) Any other confidential information which gives the Company an
opportunity to claim a competitive advantage or has economic value.
During her employment with the Company, Executive will not use, copy,
transmit or otherwise disclose the Company's Proprietary Information for any
purpose other than for the benefit of the Company, and Executive will make all
reasonable efforts to protect the confidential nature of such information.
Executive will not disclose the Company's Proprietary
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Information to anyone not entitled to such disclosure without the advance
written permission of the Board.
Upon termination of her employment, Executive will immediately deliver
to the Company all of the Company's Proprietary Information. Executive will not
retain any copies of the Company's Proprietary Information after termination of
her employment without the express written consent of the Board.
Executive agrees that she shall not at any time, whether during or
subsequent to the term of her employment or for a period of one year thereafter,
directly or indirectly or by action in concert with others, induce or influence,
or seek to induce or influence, any person who is employed or engaged as an
employee, agent, independent contractor, or otherwise, by the Company to
terminate his or her employment or engagement with the Company.
After termination of her employment, Executive will not use the
Company's Proprietary Information for any purpose, or disclose or communicate
same to any person, firm or corporation for any purpose.
Executive further agrees that in the course of her employment Executive
will not disclose to the Company, or induce the Company to use, any trade secret
information belonging to any third party.
Executive acknowledges and agrees that the Company will suffer material
and irreparable damage if Executive violates her obligations under this
Agreement, which damage cannot be adequately compensated by money damages, and
agrees that the Company would not have an adequate remedy at law for such a
violation. Therefore, Executive agrees that the Company shall be entitled, in
addition to all other available remedies, to an immediate injunction to restrain
any violation by Executive of the provisions of this Agreement.
Notwithstanding anything in this Agreement to the contrary, information
(i) already in the public domain; (ii) independently developed by the Executive;
(iii) obtained from a source not subject to a confidentiality obligation to the
Company or a third party; or (iv) that becomes public knowledge (other than by
acts of the Executive or representatives of the Executive in violation of this
Agreement), shall not be deemed to be Proprietary Information as described in
this Section 8.
(b) Any termination of the Executive's employment or of this
Agreement shall have no effect on the continuing operation of this section 8.
9. SUCCESSORS.
(a) This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
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(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company or any of its affiliated companies would be required to
perform it if no such succession had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise. As used in this Agreement, the term
"affiliated companies" shall include any company controlled by, controlling or
under common control with the Company.
10. INDEMNIFICATION. The Company shall indemnify the Executive (and
her legal representatives or other successors) to the fullest extent permitted
by the laws of the State of Delaware and the State of California and its
existing certificate of incorporation and bylaws, and the Executive shall be
entitled to the protection of an insurance policy the Company maintains for the
benefit of its directors, officers and/or employees, against all costs, charges
and expenses whatsoever incurred or sustained by her (or her legal
representatives or other successors) in connection with any action, suit or
proceeding to which she (or her legal representatives or other successors) may
be a party by reason of her being or having been a director, officer and/or
employee of the Company and its affiliated companies.
11. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of California, without reference to principles of
conflict of laws.
(b) The paragraph headings in this Agreement are inserted for
convenience only, and shall in no way effect the interpretation of this
Agreement.
(c) The parties expressly agree that this document constitutes the
entire agreement between the parties hereto. This Agreement is executed without
reliance on any promise, warranty or representation by any party, or any
representative of any party, other than those, if any, expressly contained
herein. It is the intent of this Agreement to constitute an integration of the
entire Agreement between the parties, superseding all the previous negotiations,
promises, covenants, agreements and representations. Each party understands that
in the event of any subsequent litigation, controversy or dispute concerning any
of the terms, conditions or provisions of this Agreement, no party shall be
permitted to offer or introduce any evidence concerning any collateral or oral
agreements between the parties.
This Agreement may not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective successors and
legal representatives. All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
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IF TO THE EXECUTIVE:
Anat Bird
0000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
IF TO THE COMPANY:
California Community Bancshares, Inc.
Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Chairman of the Board
Telephone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee. Notices delivered personally shall be
deemed communicated as of actual receipt; mailed notices shall be deemed
communicated as of three (3) days after mailing.
(d) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(e) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(f) The Executive's or the Company's failure to insist upon strict
compliance with any provisions of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to section 3(c) of this Agreement, shall not be deemed to be a waiver
of such provision or right or any other provision or right of this Agreement.
12. ARBITRATION. In the event of any dispute, claim or controversy
between the Executive and the Company (or its directors, officers, employees or
agents) arising out of this Agreement or the Executive's employment with the
Company, both parties agree to submit such dispute, claim or controversy to
final and binding arbitration before the American Arbitration Association in
accordance with the Employment Rules of the American Arbitration Association.
The claims governed by this arbitration provision include, but are not limited
to, claims for breach of contract, civil torts and employment discrimination
such as violation of the Fair Employment and Housing Act, Title VII of the Civil
Rights Act, Age Discrimination in Employment Act, as modified by the Older
Worker's Protection Act and other employment laws.
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(a) The arbitration shall be conducted by a single arbitrator
selected either by mutual agreement of the Executive and the Company or, if they
cannot agree, from an odd-numbered list of experienced employment law
arbitrators provided by the American Arbitration Association. Each party shall
strike one arbitrator from the list alternately until only one arbitrator
remains.
(b) Each party shall have the right to conduct reasonable
discovery, as determined by the arbitrator.
(c) The arbitrator shall have all powers conferred by law and a
judgment may be entered on the award by a court of law having jurisdiction. The
arbitrator shall render a written arbitration award that contains the essential
findings and conclusions on which the award is based. The award and judgment
shall be binding and final on both parties.
(d) The Company will pay the arbitrator's fees and costs as well as
any AAA administrative fees. The parties shall each pay the fees of their own
attorneys and the expenses of their own witnesses.
(e) This agreement to arbitrate shall continue during the term of
employment and thereafter regarding any employment-related disputes.
(f) The Executive and the Company understand that by signing this
Agreement, they give up their right to a civil trial and their right to a trial
by jury.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from the Board of Directors of the Company,
the Company has caused these presents to be executed in its name on its behalf,
all as of the day and year first above written.
CALIFORNIA COMMUNITY BANCSHARES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
/s/ Anat Bird
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Anat Bird
