Exhibit 10.9
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 20th day of October, 1995, between Eldorado Bank
(hereinafter referred to as the "Employer"), and Xxxxxxx Xxxxxxxxx,
(hereinafter referred to as the "Executive").
WITNESSETH:
WHEREAS, Employer on this date has consummated the acquisition of
Mariners Bankcorp and Mariners Bank pursuant to an Agreement and Plan of
Reorganization dated May 22, 1995;
WHEREAS, Executive was President and Chief Executive Officer of Mariners
Bancorp and Mariners Bank and had an Employment Agreement dated July 1, 1991;
WHEREAS Employer and Executive desire to terminate the Employment
Agreement dated July 1, 1991 and replace such Employment Agreement with this
Agreement;
WHEREAS, Employer is desirous of employing Executive in the capacity
hereinafter stated, and Executive is desirous of entering into the employ of
Employer in such capacity, for the period and on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and conditions herein contained the parties hereto, intending to be
legally bound, do hereby agree as follows:
1. EMPLOYMENT
Employer hereby employs Executive as an Executive Vice President with the
responsibilities set forth in the job description attached hereto, and
Executive accepts the duties that are set forth in the job description
attached and accepts all other duties described herein, and agrees to
discharge the same faithfully and to the best of his ability and consistent
with the highest and best standards of the banking industry, in accordance
with the policies of the Board as established, and in compliance with all
laws and the Employer's Articles, Bylaws, Policies and Procedures. Executive
shall devote his full business time and
attention to the business and affairs of Employer to which he may be elected
or appointed and shall perform the duties thereof to the best of his ability.
Except as permitted by the prior written consent of the Chief Executive
Officer or the Board of Directors, Executive shall not directly or indirectly
render any services of a business, commercial or professional nature to any
other person, firm or corporation, whether for compensation or otherwise,
which are in conflict with Employer's interests. Executive shall perform such
other duties as shall be from time to time prescribed by the Chief Executive
Officer, President or the Board of Directors of Employer.
2. TERM
Employer hereby employs Executive and Executive hereby accepts
employment with Employer for the period of three (3) years (the "Term"),
commencing with the date of this Agreement, subject, however, to prior
termination of this Agreement as hereinafter provided. Where used herein,
"Term" shall refer to the entire period of employment of Executive by
Employer, whether for the period provided above, or whether terminated
earlier as hereinafter provided, or extended by mutual agreement in writing
by the Employer and Executive.
3. COMPENSATION
In consideration for all services to be rendered by Executive to
Employer, Employer agrees to pay Executive a starting base salary of one
hundred twenty-five thousand dollars ($125,000) per year, commencing at the
date of this Agreement. The Board of Directors may increase the base salary
based on Executive's performance and Employer's performance and
profitability. Such salary increases shall be within the sole discretion of
the Board of Directors. In addition, Executive may receive incentive
compensation as the Chief Executive Officer or the Board of Directors, in its
sole discretion, shall determine. Executive's salary shall be paid monthly or
semi-monthly, depending on the policy of Employer. Employer shall deduct
therefrom all taxes which may be required to be deducted or withheld under
any provision of the law (including, but not limited to, social
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security payments and income tax withholding) now in effect or which may
become effective anytime during the term of this Agreement.
Executive shall be entitled to participate in any and all other employee
benefits and plans that may be developed and adopted by the Employer and in
which all or substantially all of the employees of Employer are eligible to
participate.
4. REIMBURSEMENT
Employer agrees to provide Executive a monthly car allowance of six
hundred ($600) dollars. All costs of such automobile, including operation,
maintenance, and insurance, shall be borne by Executive.
Employer further agrees to reimburse Executive for all ordinary and
necessary expenses incurred by Executive on behalf of Employer, including
entertainment, meals and travel expenses. Executive shall provide to Employer
records substantiating the business purpose of such expenses. Any costs
incurred by Executive for conventions, meetings and seminars will be
reimbursed as well as special social entertainment expenses, provided the
Chief Executive Officer or President of Employer approves such.
Employer agrees to pay the monthly member dues for Executive's membership
at the Pacific Golf and Country Club.
5. INSURANCE
Employer agrees to provide Executive with Employer's standard health and
life insurance benefits which is now or may hereinafter be in effect for
those persons who are Executive Vice Presidents of Employer.
6. VACATION
Executive shall be entitled to accrue up to four (4) weeks vacation
during each year of the Term with at least two (2) weeks to be taken in a
consecutive period. Vacation benefits shall not accrue above four weeks at
any time. The Board of Directors at its discretion may waive the provision
with respect to unused vacation time.
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7. TERMINATION
Employer shall have the right to terminate this Agreement for any of the
following reasons by serving written notice upon Executive:
(a) Willful misconduct or criminal misfeasance in the performance of
Executive's duties and obligations as Executive Vice President;
(b) Illegal conduct, constituting a crime involving moral turpitude,
illegal conduct, or conviction of a felony, or any conduct detrimental
to the interest of Employer;
(c) Physical or mental disability rendering Executive incapable of
performing his duties for a consecutive period of 360 days, or by
death;
(d) Determination by Employer's Board of Directors that the continued
employment of Executive is detrimental to the best interest of
Employer, or for any reason whatsoever as determined by Employer's
Board of Directors and in the sole and absolute discretion of
Employer's Board of Directors.
In the event this Agreement is terminated for any of the reasons specified
in the paragraphs (a), (b), or (c) above, Executive will be paid one months's
salary calculated as of the date of Executive's termination, plus any pay in
lieu of vacation accrued to, but not taken as of the date of termination.
Such termination pay shall be considered to be in full and complete
satisfaction of any and all rights which Executive may enjoy under the terms
of this Agreement other than rights, if any, to exercise any of the stock
options vested prior to such termination. The insurance benefits provided
herein shall be extended at Employer's sole cost for thirty (30) days
following the date of termination.
In the event this Agreement is terminated for any reasons specified in
paragraph (d), above, Executive shall be entitled to termination pay in the
amount of the greater of the balance payable under this Agreement or twelve
(12) months of the Executive's then current base salary per year at the date
of termination. Such termination pay shall be paid in a lump sum and shall be
considered to be in full and complete satisfaction of any and all rights
which Executive may enjoy under the terms of this Agreement.
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Where termination is pursuant to paragraph (d), above, any pay in lieu of
vacation accrued to, but not taken as of the date of termination, will be
deemed included in the termination pay. In such case, the insurance benefits
provided herein shall be extended at Employer's sole cost for six (6) months
following the date of termination.
Executive shall give sixty (60) days prior notice, in writing, to employer
in the event Executive resigns or voluntarily terminates employment.
8. ACQUISITION OR DISSOLUTION OF EMPLOYER
This Agreement shall not be terminated by the voluntary or involuntary
dissolution of Employer. Notwithstanding the foregoing, in the event
proceedings for liquidation or Employer are commenced by regulatory
authorities, this Agreement and all rights and benefits hereunder shall
terminate.
9. INDEMNIFICATION
To the extent permitted by law, Employer shall indemnify Executive who was
or is a party or is threatened to be made a party in any action brought by a
third party against the Executive (whether or not Employer is joined as a
party defendant) against expenses, judgments, fines, settlements, and other
amounts actually and reasonably incurred in connection with said action if
Executive acted in good faith and in a manner Executive reasonably believed
to be in the best interest of the Employer (and with respect to a criminal
proceeding if Executive had no reasonable cause to believe his conduct was
unlawful), provided that the alleged conduct of Executive arose out of and
was within the course and scope of his employment as an officer or employee
of Employer.
10. RETURN OF DOCUMENTS
Executive expressly agrees that all manuals, documents, files, reports,
studies, instruments or other materials used or developed by Executive during
the Term are solely the property of Employer, and Executive has no right,
title or interest therein. Upon termination of this Agreement, Executive or
Executive's
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representatives shall promptly deliver possession of all of said property to
Employer in good condition.
11. NOTICES
Any notice, request, or demand, or other communication required or
permitted hereunder shall be deemed to be properly given when personally
served in writing, when deposited in the U.S. mail, postage prepaid, or when
communicated to a public telegraph company for transmittal, addressed to the
party at the address given at the beginning of this Agreement or at any other
address as Employer or Executive may designate to the other in writing.
12. BENEFIT OF AGREEMENT
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective executors, administrators, successors and
assigns.
13. APPLICABLE LAW
This Agreement is to be governed by and construed under the laws of the
State of California.
14. CAPTIONS AND PARAGRAPH HEADINGS
Captions and paragraph headings used herein are for convenience only and
are not a part of this Agreement and shall not be used in construing it.
15. INVALID PROVISIONS
Should any provisions of this Agreement for any reason be declared
invalid, void, or unenforceable by a court of competent jurisdiction, the
validity and binding effect of any remaining portion shall not be affected
and the remaining portions of this Agreement shall remain in full force and
effect as if this Agreement had been executed with said provisions eliminated.
16. ENTIRE AGREEMENT
This Agreement with the exception of the Executive Salary Continuation
Agreement dated as of even date herewith contains the entire agreement of the
parties and it supersedes any and all other
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agreements, either oral or in writing, between the parties hereto with
respect to the employment of Executive by Employer. Each party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements, oral or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other
agreement, statement, or promise not contained in this Agreement shall be
valid or binding with the exception of the Executive Salary Continuation
Agreement. This Agreement may not be modified or amended by oral agreement,
but only by an agreement in writing signed by Employer and Executive. Upon
the execution of this Agreement, all other agreements regarding the
employment of Executive with Mariners Bancorp and Mariners Bank, with the
exception of the Executive Salary Continuation Agreement dated as of even
date herewith, shall terminate and Employer shall have no liability.
17. CONFIDENTIALITY
This Agreement is to be held confidential. Breach of such
confidentiality by Executive will be subject to termination under the
provisions of 7(a) of this Agreement.
18. ARBITRATION
All claims, disputes and other matters in question arising out of or
relating to this Agreement or the breach or interpretation thereof, other
than those matters which are to be determined by the Employer in its sole and
absolute discretion, shall be resolved by binding arbitration before a
representative member, selected by the mutual agreement of the parties, of
the Judicial Arbitration and Mediation Services, Inc. ("JAMS"), presently
located in Santa Ana, California. In the event JAMS is unable or unwilling to
conduct the arbitration provided for under the terms of this Paragraph, or
has discontinued its business, the parties agree that a representative
member, selected by the mutual agreement of the parties, of the American
Arbitration Association ("AAA"), presently located in Orange County,
California, shall conduct the binding arbitration referred to in this
Paragraph. Notice of the demand for arbitration shall be filed in writing
with the other party to this Agreement and with JAMS (or AAA, if necessary).
In no event shall
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the demand for arbitration be made after the date when institution of legal
or equitable proceedings based on such claim, dispute or other matter in
question would be barred by the applicable statute of limitations. The
arbitration shall be subject to such rules of procedure used or established
by JAMS, or if there are none, the rules of procedure used or established by
AAA. Any award-rendered by JAMS or AAA shall be final and binding upon the
parties, and as applicable, their respective heirs, beneficiaries, legal
representatives, agents, successors and assigns, and may be entered in any
court having jurisdiction thereof. The obligation of the parties to arbitrate
pursuant to this clause shall be specifically enforceable in accordance with,
and shall be conducted consistently with, the provisions of Title 9 of Part 3
of the California Code of Civil Procedure. Any arbitration hereunder shall be
conducted in Orange County, California, unless otherwise agreed to by the
parties.
19. LEGAL COSTS
If either party commences an action against the other party arising out
of or in connection with this Agreement, the prevailing party shall be
entitled to have and recover from the losing party reasonable attorney's fees
and costs of suit.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ELDORADO BANK
By /s/
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By /s/ Xxxxxxx Xxxxxxxxx
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