EXHIBIT 10.7
CHANGE IN CONTROL EMPLOYMENT AGREEMENT
This Agreement by and between Hawthorne Financial Corporation (the
"Company"), and XXXXXX XXXX (the "Executive"), is dated as of September 23,
2003.
RECITALS
The Board of Directors of the Company (the "Board"), has determined
that it is in the best interests of the Company and its shareholders to assure
that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change of Control (as
defined below) of the Company.
The Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control and to encourage the
Executive's full attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control, and to provide the
Executive with compensation and benefits arrangements upon a Change of Control
which ensure that the compensation and benefits expectations of the Executive
will be satisfied and which are competitive with those of other corporations.
Therefore, in order to accomplish these objectives, the Board has
caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1) Certain Definitions.
a) The "Effective Date" shall mean the first date during the Change of
Control Period (as defined in Section l(b)) on which a Change of
Control (as defined in Section 2) occurs.
If a Change of Control occurs and if the Executive's employment with
the Company is terminated by the Company prior to the date on which
the Change of Control occurs, and if it is reasonably demonstrated by
the Executive that such termination of employment (i) was at the
request of a third party who has taken steps reasonably calculated to
effect a Change of Control or (ii) otherwise arose in connection with
or anticipation of a Change of Control, then for all purposes of this
Agreement the "Effective Date" shall mean the date immediately prior
to the date of such termination of employment.
b) The "Change of Control Period" shall mean the period commencing on the
date of this Agreement and ending on the first anniversary of the date
thereafter.
c) "Renewal Date" - Commencing on the first anniversary date of this
Agreement and on each anniversary date thereafter, this Agreement
shall be automatically extended for another Change of Control period.
The Company may, however, terminate the automatic
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extension by providing the Executive with written notice at least 60
days prior to the Renewal Date that the Change of Control period shall
not be so extended.
d) "Company" shall mean the Company as herein before 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.
e) "Affiliated Companies" shall mean any company controlled by,
controlling or under common control with the Company.
f) "Disability" shall mean the Executive's long-term disability for
purposes of any reasonable occupation as determined under the
Company's disability plan that is applicable to the Executive.
g) "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 in Section 1(h)) 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).
h) "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, 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 and (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.
2) Change of Control. For the purpose of this Agreement, a "Change of Control"
shall mean:
a) The acquisition by any individual, entity or group (a "Person") within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of more than 24.9% of either (i) the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or (ii)
the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities").
For purposes of this subsection (a), a Change of Control may not occur
due to the exercise of warrants. Therefore, the exercise of
outstanding warrants is specifically excluded from the determination
of whether or not a Change of Control has occurred.
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In addition, the following acquisitions shall not constitute a Change
of Control: (i) any acquisition directly from the Company, (ii) any
acquisition by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company or (iv) any acquisition
by any corporation pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of subsection (c) of this Section 2; or
b) Directors who, as of the date of this Agreement, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming
a director subsequent to the date of this Agreement whose election, or
nomination for election by the Company's shareholders, was approved by
a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Board; or
c) Consummation by the Company of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of the Company or the acquisition of assets or stock of
another corporation (a "Business Combination").
This Section 2(c) shall not apply if, following such Business
Combination:
(i) all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly,
more than 50% of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be;
(ii) A Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined
voting power of the then outstanding voting securities of such
corporation, so long as such ownership existed prior to the Business
Combination; and
(iii) at least a majority of the members of the board of directors of
the corporation
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resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
d) Approval by the shareholders of the Company of a complete liquidation
or dissolution of the Company.
3) Employment Period. The Company hereby agrees to continue the Executive in
its employ, and the Executive hereby agrees to remain in the employ of the
Company subject to the terms and conditions of this Agreement, for the
period commencing on the Effective Date and ending on the first anniversary
of such date (the "Employment Period").
4) Terms of Employment.
a) Position and Duties.
i) During the Employment Period, (A) the Executive's position
(including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant
of those held, exercised and assigned to the Executive at any
time during the 120-day period immediately preceding the
Effective Date and (B) the Executive's services shall be
performed at the location where the Executive was employed
immediately preceding the Effective Date or any office or
location less than 25 miles from such location.
ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote reasonable attention and time during
normal business hours to the business and affairs of the Company
and, to the extent necessary to discharge the responsibilities
assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and efficiently
such responsibilities.
During the Employment Period, the Executive may not compete with
the Company. The Executive recognizes his/her continuing
fiduciary duty to at all times act in the Company's best
interest. Any outside employment must be cleared for conflicts
and receive the express written permission of the Board.
During the Employment Period it shall not be a violation of this
Agreement for the Executive to (A) serve on corporate, civic or
charitable boards or committees, (B) deliver lectures, fulfill
speaking engagements or teach at educational institutions and (C)
manage personal investments, so long as such activities do not
significantly interfere with the performance of the Executive's
responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the
extent that any such activities have been conducted by the
Executive prior to the Effective Date, the continued conduct of
such activities (or the conduct of activities similar in nature
and scope thereto) subsequent to the Effective Date shall
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not thereafter be deemed to interfere with the performance of the
Executive's responsibilities to the Company.
b) Compensation.
i) Base Salary. During the Employment Period, the Executive shall
receive an annual base salary ("Annual Base Salary"), which shall
be paid at a monthly rate, at least equal to twelve times the
highest monthly base salary paid or payable, including any base
salary which has been earned but deferred, to the Executive by
the Company and its affiliated companies in respect of the
twelve-month period immediately preceding the month in which the
Effective Date occurs. During the Employment Period, the Annual
Base Salary shall be reviewed no more than 12 months after the
last salary increase awarded to the Executive prior to the
Effective Date and thereafter at least annually. Any increase in
Annual Base Salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. Annual Base
Salary shall not be reduced after any such increase, and the term
Annual Base Salary as utilized in this Agreement shall refer to
Annual Base Salary as so increased.
ii) Incentives. In addition to Annual Base Salary, the Executive
shall be awarded the following bonuses. For each fiscal year
ending during the Employment Period, the Executive shall be
awarded an annual bonus in cash at least equal to the average of
the Executive's bonuses under the Company's Annual Incentive
Program, or any comparable bonus under any predecessor or
successor plan(s), for the last three full fiscal years prior to
the Effective Date. This bonus shall be known at the "Annual
Bonus."
In the event an Executive has completed at least one year, but
not three full years of employment with the Company prior to the
Effective Date, any bonuses received under the Company's Annual
Incentive Program, or any comparable bonus under any predecessor
or successor plan(s), will be averaged to constitute the Annual
Bonus.
If an Executive has been employed for less than one year prior to
the Effective Date, the then existing President and Chief
Executive Officer will review the Executive's performance
relative to established performance goals. A pro rata bonus will
then be recommended to the Compensation Committee of the Board of
Directors, which if approved, will be annualized to constitute
the Annual Bonus.
Each such Annual Bonus shall be paid no later than the fifteenth
day of the third month of the fiscal year next following the
fiscal year for which the Annual Bonus is awarded, unless the
Executive shall elect to defer the receipt of such Annual Bonus.
In addition, during the Employment Period, the Executive shall be
entitled to participate in all long-term and other incentive
plans, practices, policies and programs applicable generally to
other peer executives of the Company and its affiliated
companies, but in no event shall such plans, practices, policies
and programs provide the Executive with incentive opportunities
(measured with respect to both regular and special incentive
opportunities, to the extent, if any, that such distinction is
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applicable) less favorable, in the aggregate, than the most
favorable of those provided by the Company and its affiliated
companies for the Executive under such plans, practices, policies
and programs as in effect at any time during the 120-day period
immediately preceding the Effective Date or if more favorable to
the Executive, those provided generally at any time after the
Effective Date to other peer executives of the Company and its
affiliated companies.
iii) Savings and Retirement Plans. During the Employment Period, the
Executive shall be entitled to participate in all savings and
retirement plans, practices, policies and programs applicable
generally to other peer executives of the Company and its
affiliated companies, but in no event shall such plans,
practices, policies and programs provide the Executive with
savings opportunities and retirement benefit opportunities, in
each case, less favorable, in the aggregate, than the most
favorable of those provided by the Company and its affiliated
companies for the Executive under such plans, practices, policies
and programs as in effect at any time during the 120-day period
immediately preceding the Effective Date or if more favorable to
the Executive, those provided generally at any time after the
Effective Date to other peer executives of the Company and its
affiliated companies. Without limiting the generality of the
foregoing, the Company and its affiliated companies shall
continue to honor any individual agreements between any of them
and the Executive regarding the provision of supplemental
retirement benefits such as (but not limited to) post-retirement
income and/or welfare benefits (each of which is hereafter
referred to as an "Individual SERP").
iv) Welfare Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be,
shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and
programs provided by the Company and its affiliated companies
(including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and
programs) to the extent applicable generally to other peer
executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide
the Executive with benefits which are less favorable, in the
aggregate, than the most favorable of such plans, practices,
policies and programs in effect for the Executive at any time
during the 120-day period immediately preceding the Effective
Date or, if more favorable to the Executive, those provided
generally at any time after the Effective Date to other peer
executives of the Company and its affiliated companies.
v) Expenses. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the most
favorable policies, practices and procedures of the Company and
its affiliated companies in effect for the Executive at any time
during the 120-day period immediately preceding the Effective
Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies.
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vi) Fringe Benefits. During the Employment Period, the Executive
shall be entitled to fringe benefits, including, without
limitation, the fringe benefits identified on Exhibit "A"
attached hereto in accordance with the most favorable plans,
practices, programs and policies of the Company and its
affiliated companies in effect for the Executive at any time
during the 120-day period immediately preceding the Effective
Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies.
vii) Office and Support Staff. During the Employment Period, the
Executive shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to exclusive
personal secretarial and other assistance, at least equal to the
most favorable of the foregoing provided to the Executive by the
Company and its affiliated companies at any time during the
120-day period immediately preceding the Effective Date or, if
more favorable to the Executive, as provided generally at any
time thereafter with respect to other peer executives of the
Company and its affiliated companies.
viii)Vacation. During the Employment Period, the Executive shall be
entitled to paid vacation in accordance with the most favorable
plans, policies, programs and practices of the Company and its
affiliated companies as in effect for the Executive at any time
during the 120-day period immediately preceding the Effective
Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies.
5) 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, it may give to the Executive
written notice in accordance with Section 11(b) 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.
b) Cause. The Company may terminate the Executive's employment during the
Employment Period for Cause. For purposes of this Agreement, "Cause" shall
mean:
i) the willful and continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of
its affiliates (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 which specifically identifies the manner in which
the Board believes that the Executive has not substantially
performed the Executive's duties, or
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ii) the willful engaging by the Executive in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the
Company.
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 or upon the instructions of a senior officer
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.
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 of not less than three-quarters of the entire
membership of the Board at a meeting of the 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 may terminate Executive's employment during
the Employment Period for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean:
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 4(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 isolated,
insubstantial and inadvertent actions not taken in bad faith and
which are 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 4(b) of this Agreement, other than isolated,
insubstantial and inadvertent failures not occurring in bad faith
and which are 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
or location other than as provided in Section 4(a)(i)(B) hereof
or the Company's requiring the Executive to travel on Company
business to a substantially greater extent than required
immediately prior to the Effective Date;
iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this
Agreement; or
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v) any failure by the Company to comply with and satisfy Section
10(c) of this Agreement.
For purposes of this Section 5(c), the Executive's cessation of employment shall
not be deemed for "Good Reason" unless and until there shall have been delivered
to the Executive a copy of a resolution duly adopted by the affirmative vote of
not less than three-quarters of the entire membership of the Board at a meeting
of the 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 has Good Reason as described in subparagraph
(i) - (v) above, and specifying the particulars thereof in detail.
d) Notice of Termination. Any termination by the Company for Cause, or by
the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section
11(b) of this Agreement. 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.
6) 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 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 aggregate of the
following amounts:
A. the sum of:
(1) the Executive's Annual Base Salary through the Date of
Termination to the extent not theretofore paid; plus
(2) the product of:
(x) the higher of (I) the Annual Bonus and (II) any bonus
paid or payable, including any bonus or portion thereof
which has been earned but deferred (and annualized for any
fiscal year consisting of less than twelve full months or
during which the Executive was employed for less than twelve
full months), for the most recently completed fiscal year
during the Employment Period, if any, and;
(y) a fraction, the numerator of which is the number of days
in the current fiscal year through the Date of Termination,
and the denominator of which is 365, plus
(3) any accrued vacation pay, in each case to the extent not
theretofore paid (the sum of the amounts described in
clauses (1), (2) and (3) shall be hereinafter referred to as
the "Accrued Obligations"); and
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B. an amount equal to the sum of (1) the Executive's Annual
Base Salary and (2) the Annual Bonus; and
C. an amount equal to the difference between (1) the aggregate
benefit under any qualified defined benefit retirement plans
of the Company and its affiliated companies in which the
Executive participates (collectively, the "Retirement Plan")
and any "top hat," excess or supplemental defined benefit
retirement plans of the Company and its affiliated companies
in which the Executive participates, and any Individual SERP
(collectively, the "SERP') which the Executive would have
accrued (whether or not vested) if the Executive's
employment had continued for one year after the Date of
Termination and (2) the actual vested benefit, if any, of
the Executive under the Retirement Plan and the SERP,
determined as of the Date of Termination (with the foregoing
amounts to be computed on an actuarial present value basis,
based on the assumption that the Executive's compensation
during such period of deemed continued employment after the
Date of Termination was that required by Section 4(b)(i) and
Section 4(b)(ii), and using actuarial assumptions no less
favorable to the Executive than the most favorable of those
in effect for purposes of computing benefit entitlements
under the Retirement Plan and the SERP at any time from the
day before the Effective Date through the Date of
Termination);
ii) the Company shall continue benefits to the Executive and/or the
Executive's family, for one year after the Executive's Date of
Termination, or such longer period as may be provided by the
terms of the appropriate plan, program, practice or policy, at
least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies
described in Section 4(b)(iv) of this Agreement if the
Executive's employment had not been terminated or, if more
favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company
and its affiliated companies and their families; provided,
however, that if the Executive becomes reemployed with another
employer and is eligible to receive medical or other welfare
benefits under another employer provided plan, the medical and
other welfare benefits described herein shall be secondary to
those provided under such other plan during such applicable
period of eligibility; and for purposes of determining the
eligibility of the Executive for retiree benefits pursuant to
such plans, practices, programs and policies, the Executive shall
be considered to have remained employed until the end of a number
of years after the Date of Termination equal to the Multiplier
and to have retired on the last day of such period;
iii) the Company shall, at its sole expense as incurred, provide the
Executive with outplacement services the scope and provider of
which shall be selected by the Executive in the Executive's sole
discretion; and
iv) 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 or contract or agreement of the Company and its
affiliated companies
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(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 Obligations and the timely payment or provision of Other
Benefits. Accrued Obligations 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 6(b)
shall include, without limitation, and the Executive's estate and/or
beneficiaries shall be entitled to receive, benefits at least equal to
the most favorable benefits provided by the Company and affiliated
companies to the estates and beneficiaries of peer executives of the
Company and such affiliated companies under such plans, programs,
practices and policies relating to death benefits, if any, as in
effect with respect to other peer executives and their beneficiaries
at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive's estate and/or
the Executive's beneficiaries, as in effect on the date of the
Executive's death with respect to other peer executives of the Company
and its affiliated companies and their beneficiaries.
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 Obligations and the
timely payment or provision of Other Benefits. Accrued Obligations
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 6(c)
shall include, and the Executive shall be entitled after the
Disability Effective Date to receive, disability and other benefits at
least equal to the most favorable of those generally provided by the
Company and its affiliated companies to disabled executives and/or
their families in accordance with such plans, programs, practices and
policies relating to disability, if any, as in effect generally with
respect to other peer executives and their families at any time during
the 120-day period immediately preceding the Effective Date or, if
more favorable to the Executive and/or the Executive's family, as in
effect at any time thereafter generally with respect to other peer
executives of the Company and its affiliated companies and their
families.
d) Cause; Other than for Good Reason. If the Executive's employment shall
be terminated for Cause during the Employment Period, this Agreement
shall terminate without further obligations to the Executive other
than the obligation to pay to the Executive (x) the Annual Base Salary
through the Date of Termination, (y) the amount of any compensation
previously deferred by the Executive, and (z) Other Benefits, in each
case to the extent theretofore unpaid. If the Executive voluntarily
terminates employment during the Employment Period, excluding a
termination for Good Reason, this Agreement shall terminate without
further obligations to the Executive, other than for Accrued
Obligations and the timely payment or provision of Other Benefits. In
such case, all Accrued Obligations shall be paid to the Executive in a
lump sum in cash within 30 days of the Date of Termination.
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7) Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit
the Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its affiliated
companies for which the Executive may qualify, nor, subject to Section
11(f), shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement with the Company or any
of its affiliated companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice
or program of or any contract or agreement with the Company or any of its
affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or
contract or agreement except as explicitly modified by this Agreement.
Notwithstanding the foregoing, from and after the Effective Date, the
compensation and benefits provided for pursuant to Sections 5, 8 and 9
hereof shall be in lieu of any severance or separation pay or benefits to
which the Executive might otherwise be entitled under any plan, program,
policy or arrangement of the Company and its affiliates.
8) Full Settlement; Legal Fees. 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 Executive under any of the provisions of this
Agreement and except as specifically provided in Section 6(a)(ii), such
amounts shall not be reduced whether or not the Executive obtains other
employment.
All legal fees and expenses reasonably incurred as a result of any contest
to the validity or enforceability of, or liability under, any provision of
this Agreement or any guarantee of performance thereof (whether such
contest is between the Company and the Executive or between either of them
and any third party, and including as a result of any contest by the
Executive about the amount of any payment pursuant to this Agreement),
shall be awarded to the prevailing party.
In addition, if the Executive prevails with respect to a dispute over
delayed payments, the Executive will be entitled to the delayed payment
plus interest at the applicable Federal rate provided for in Section
7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the
"Code").
9) Confidential Information. As used herein, "Confidential Information" means
all technical and business information of the Company and its affiliated
companies, whether patentable or not, which is of a confidential, trade
secret and/or proprietary character and which is either developed by the
Executive (alone or with others) or to which the Executive has had access
during the Executive's employment. Such Confidential Information includes,
but is not limited to customer lists, products, procedures, operations,
investments, financing, costs, employees, accounting, marketing, salaries,
pricing, profits and plans for future development, the identity,
requirements, preferences, practices and methods of doing business of
specific parties with whom the Company transacts business, and all other
information which is related to any product or service or business of the
Company, other than information which is
12
generally known in the financial services industry or is acquired from
public sources.
a) The Executive shall use the Executive's best efforts and diligence
both during and after employment by the Company to protect the
confidential, trade secret and/or proprietary character of all
Confidential Information. The Executive shall not, directly or
indirectly, use (for the Executive or another) or disclose any
Confidential Information, for so long as it shall remain proprietary
or protectible as confidential or trade secret information, except as
may be necessary for the performance of the Executive's duties with
the Company.
b) The Executive shall deliver promptly to the Company, at the
termination of the Executive's employment, or at any other time at the
Company's request, without retaining any copies, all documents and
other material in the Executive's possession relating, directly or
indirectly, to any Confidential Information.
c) Each of the Executive's obligations in this Section 9 shall also apply
to the confidential, trade secret and proprietary information learned
or acquired by the Executive during the Executive's employment from
others with whom the Company or any affiliated company has a business
relationship.
d) The Executive understands that the Executive is not to disclose to the
Company or any affiliated company, or use for its benefit, any of the
confidential, trade secret or proprietary information of others,
including any of the Executive's former employers.
10) 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.
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 would be required to perform it if no such
succession had taken place.
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. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. 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.
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b) All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed facsimile if sent
during normal business hours of the recipient, if not, then on the
next business day, (c) three (3) days after having been sent by first
class mail, return receipt requested, postage prepaid, (d) one (1) day
after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written or oral verification of
receipt, or (e) upon confirmed delivery by electronic mail. Until
changed upon giving notice as provided herein, notices shall be sent
to:
If to the Company:
Hawthorne Savings, F.S.B.
0000 Xxxxxxxxx Xxxxxx
Xx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxx, Chief Executive Officer
Fax: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxxxxxxxx.xxx
If to the Executive:
XxXxxx Xxxx
0000 Xxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, XX 00000
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications
shall be effective when actually received by the addressee.
c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision
of this Agreement.
d) The Company may withhold from any amounts payable under this Agreement
such Federal, state, local or other taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
e) The Executive's or the Company's failure to insist upon strict
compliance with any provision 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 5(c)(i)-(v) 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.
f) The Executive and the Company acknowledge that, except as may
otherwise be provided under any other written agreement between the
Executive and the Company, the employment of the Executive by the
Company is "at will" and, subject to Section l(a) hereof, prior to the
Effective Date, the Executive's employment and/or this Agreement may
be terminated by either the Executive or the Company at any time prior
to the Effective Date, in which case the Executive shall have no
further rights under this Agreement. This Agreement shall have no
effect on the Executive's rights under any plan,
14
program, policy or practice provided by the Company or any of its
affiliated companies except as specifically provided in Section 7
above.
12) Non-Solicitation. During the Employment Period and for a period of one year
thereafter, the Executive shall not 1) induce or attempt to induce any
employee of the Company to leave the employ of the Company or in any way
interfere with the relationship between the Company and its employees, (2)
hire any person who was employed by the Company during the Employment
Period, or (3) induce or attempt to induce any client of the Company to
cease doing business with the Company or in any way interfere with the
relationship between the Company and its clients
13) Waiver & Release. In exchange for the benefits as outlined in this
Agreement, the Executive agrees to waive and release any and all claims,
actions or costs arising out of his employment with the Company. The Waiver
& Release includes all claims whether arising in tort or contract and
whether arising under statute or common law.
Such claims may include, but are not limited to, wrongful termination,
retaliation, harassment, or any statutory claims under Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Fair Employment
and Housing Act, the Americans with Disabilities Act, or similar Federal or
state statutes. The Executive understands and acknowledges that accepting
benefits under this Agreement specifically constitutes a voluntary waiver
of any and all rights and claims against the Company including, without
limitation, rights or claims arising under the Age Discrimination in
Employment Act of 1967, 29 U.S.C. Section 621, et. seq..
This Waiver & Release applies even to such damages or losses about which
the Executive does not know, or which do not now exist, but which might
arise in the future. The Executive waives all rights under California Civil
Code Section 1542. Section 1542 provides as follows:
"A general release does not extend to claims, which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
14) Binding Arbitration. Any controversy or claim arising out of or related to
this Agreement, or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association under its Commercial
Arbitration Rules.
The arbitration will be conducted before an arbitrator who is a member of
the National Academy of Arbitrators and selected by the parties from the
American Arbitration Association's Labor Panel. The arbitrator will have
jurisdiction to determine the arbitrability of any claim. The arbitrator
will not have the right to add to, subtract from or modify any of the terms
of this Agreement, nor the power to reverse or modify any decision reserved
to the Company's discretion.
The arbitrator shall have the authority to grant all monetary or equitable
relief (including, without limitation, ancillary costs and fees) available
under state and federal law. Judgment
15
on any award rendered by the arbitrator may be entered and enforced by any
court having jurisdiction thereof. Discovery shall be in accordance with
the California Arbitration Act. The parties agree that the parties shall
share responsibility for the Arbitrator's fee.
15) Integration Clause. The terms of this Agreement are final. The Executive
and the Company represent that in executing this Agreement, they have not
relied upon any representations other than those specifically stated in
this written Agreement.
The Agreement contains all promises that have been made by either party.
There are no hidden terms, and everything that is important to this
Agreement is specified in writing here. This Agreement shall be construed
as though both parties have participated equally in its drafting, and it
shall be interpreted, wherever possible, to make it valid and effective.
IN WITNESS WHEREOF, the Executive and, pursuant to the authorization from its
Board of Directors, the Company have executed this Agreement as of the day and
year first above written.
EXECUTIVE HAWTHORNE FINANCIAL CORPORATION
/s/ XXXXXX XXXX
--------------------------- By: /s/ XXXXXX XXXXXXXXXXX
XxXxxx Xxxx --------------------------------
Xxxxxx Xxxxxxxxxxx, President & CEO
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