EXHIBIT 10.12
AMENDMENT NUMBER 1 TO THE AGREEMENT
BETWEEN
PBOC HOLDINGS, INC.
AND
PEOPLE'S BANK OF CALIFORNIA
AND
J. XXXXXXX XXXXXX
WHEREAS, PBOC Holdings, Inc. (the "Corporation"), People's Bank of
California (the "Bank") (together, the "Employers"), and J. Xxxxxxx Xxxxxx (the
"Executive") entered into an employment agreement dated May 15, 1998 (the
"Agreement");
WHEREAS, the Employers and the Executive desire to modify certain
provisions of the Agreement; and
WHEREAS, Section 12 of the Agreement provides that no provisions of the
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing and signed by the Executive and such
officer or officers as may be specifically designated by the Boards of Directors
of the Employers to sign on its behalf.
NOW, THEREFORE, BE IT RESOLVED, in consideration of the mutual
covenants herein set forth, the Employers and the Executive do hereby agree to
the following amendments to the Agreement:
1. The definition of "Average Annual Compensation" shall be added as
Section 1(a) of the Agreement to read as set forth below and the current
subsections (a) - (j) are to be re-lettered as (b) - (k):
(a) AVERAGE ANNUAL COMPENSATION. The Executive's "Average
Annual Compensation" for purposes of this Agreement shall be deemed to
mean the average level of compensation paid to the Executive by the
Employers or any subsidiary thereof during the most recent five taxable
years preceding the Date of Termination and which was either (i)
included in the Executive's gross income for tax purposes, including
but not limited to Base Salary, bonuses and amounts taxable to the
Executive under any qualified or non-qualified employee benefit plans
of the Employers, or (ii) deferred at the election of the Executive.
For purposes of this definition, Average Annual Compensation shall not
include any funds paid to the Executive pursuant to the Executive's
Initial Employment Agreement in connection with the Corporation's
initial public offering and termination of the Initial Employment
Agreement, which was included by Executive as compensation in
Executive's federal income tax return.
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2. Section 3(a) of the Agreement is restated to read as set forth
below:
(a) The Employers hereby employ the Executive as Senior
Executive Vice President and Chief Financial Officer of the Corporation
and the Bank and the Executive hereby accepts said employment and
agrees to render such services to the Corporation and the Bank on the
terms and conditions set forth in this Agreement. The term of
employment under this Agreement shall be for three years, commencing on
the date of this Agreement and, upon approval of the Boards of
Directors of the Employers, shall extend for an additional year on each
annual anniversary of the date of this Agreement such that at any time
the remaining term of this Agreement shall be from two to three years.
Prior to each annual anniversary, the Boards of Directors of the
Employers shall consider and review (after taking into account all
relevant factors, including the Executive's performance hereunder) an
extension of the term of this Agreement, and the term shall continue to
extend each year if the Boards of Directors approve such extension
unless the Executive gives written notice to the Employers of the
Executive's election not to extend the term, with such written notice
to be given not less than thirty (30) days prior to any such
anniversary date. If any party gives timely notice that the term will
not be extended as of any annual anniversary date, then this Agreement
shall terminate at the conclusion of its remaining term. References
herein to the term of this Agreement shall refer both to the initial
term and successive terms.
3. Section 4(b) of the Agreement is restated to read as set forth
below:
(b) During the term of this Agreement, the Executive shall be
entitled to participate in and receive the benefits of any pension or
other retirement benefit plan, profit sharing, stock option, employee
stock ownership, or other plans, benefits and privileges given to
employees and executives of the Employers, to the extent commensurate
with his then duties and responsibilities, as fixed by the Boards of
Directors of the Employers. The Employers shall not make any changes in
such plans, benefits or privileges which would adversely affect the
Executive's rights or benefits thereunder, unless such change occurs
pursuant to a program applicable to all executive officers of the
Employers and does not result in a proportionately greater adverse
change in the rights of or benefits to the Executive as compared with
any other executive officer of the Employers. Nothing paid to the
Executive under any plan or arrangement presently in effect or made
available in the future shall be deemed to be in lieu of the salary
payable to the Executive pursuant to Section 4(a) hereof.
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4. Subparagraphs (A) and (B) of Section 6(d) of the Agreement are
restated to read as set forth below:
(A) pay to the Executive, in either twenty-four (24)
equal monthly installments beginning with the first business day of the
month following the Date of Termination or in a lump sum within five
business days of the Date of Termination (at the Executive's election),
a cash severance amount equal to two (2) times that portion of the
Executive's Average Annual Compensation, and
(B) maintain and provide for a period ending at the
earlier of (i) the expiration of the remaining term of employment
pursuant hereto prior to the Notice of Termination or (ii) the date of
the Executive's full-time employment by another employer (provided that
the Executive is entitled under the terms of such employment to
benefits substantially similar to those described in this subparagraph
(B)), at no cost to the Executive, the Executive's continued
participation in all group insurance, life insurance, health and
accident insurance, disability insurance and other employee benefit
plans, programs and arrangements offered by the Employers in which the
Executive was entitled to participate immediately prior to the Date of
Termination (excluding (x) stock option and restricted stock plans of
the Employers, (y) bonuses and other items of cash compensation
included in Average Annual Compensation and (z) other benefits, or
portions thereof, included in Average Annual Compensation), provided
that in the event that the Executive's participation in any plan,
program or arrangement as provided in this subparagraph (B) is barred,
or during such period any such plan, program or arrangement is
discontinued or the benefits thereunder are materially reduced, the
Employers shall arrange to provide the Executive with benefits
substantially similar to those which the Executive was entitled to
receive under such plans, programs and arrangements immediately prior
to the Date of Termination.
5. A new Section 20 is added to the Agreement to read as set forth
below:
20. PAYMENT OF COST AND LEGAL FEES AND REINSTATEMENT OF
BENEFITS. In the event any dispute or controversy arising under or in
connection with the Executive's termination is resolved in favor of the
Executive, whether by judgement, arbitration or settlement, the
Executive shall be entitled to the payment of (a) all legal fees
incurred by the Executive in resolving such dispute or controversy, and
(b) any back-pay, including Base Salary, bonuses and any other cash
compensation, fringe benefits and any compensation and benefits due to
the Executive under this Agreement.
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6. With the addition of a new Section 20, the current Section 20 of the
Agreement is restated as Section 21 to read as set forth below:
21. ENTIRE AGREEMENT. This Agreement and any amendments
thereto embody the entire agreement between the Employers and the
Executive with respect to the matters agreed to herein. All prior
agreements between the Employers and the Executive with respect to the
matters agreed to herein are hereby superseded and shall have no force
or effect.
The Employers and the Executive intend that the Agreement and this
Amendment Number 1 to the Agreement ("Amendment") embody the entire agreement
between the Employers and the Executive with respect to the matters agreed to in
the Agreement, as amended.
IN WITNESS WHEREOF, the parties have duly executed this Amendment
Number 1 to the Agreement as of this 22nd day of May 2000.
PBOC HOLDINGS, INC.
By: /s/Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
Attest: PEOPLE'S BANK OF CALIFORNIA
/s/Xxxxxxxx X. Xxxx By: /s/Xxxxxx X. Xxxxxxx
----------------------------- -------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
EXECUTIVE
By: /s/J. Xxxxxxx Xxxxxx
-------------------------------------
J. Xxxxxxx Xxxxxx
Senior Executive Vice President and
Chief Financial Officer
