Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 15th day of April, 1998, between BUSINESS BANK
OF CALIFORNIA (the "Bank"), having a principal place of business at 000 Xxxx
Xxxxxx Xxxxxx, Xxx Xxxxxxxxxx, Xxxxxxxxxx 00000, and XXXX X. XXXXX
("Executive"), whose residence address is 00000 Xxxxxxx Xxxx, Xxxxxx Xxxxxx, XX
00000.
WITNESSETH
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WHEREAS, the Bank is a California banking corporation duly organized,
validly existing, and in good standing under the laws of the State of
California, with power to own property and carry on its business as it is now
being conducted;
WHEREAS, the Bank desires to avail itself of the skill, knowledge and
experience of Executive in order to insure the successful management of its
business;
WHEREAS, the parties hereto desire to specify the terms of Executive's
employment by the Bank as controlling Executive's employment with the Bank;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and intending to be legally bound, it is agreed that the following terms
and conditions shall apply to Executive's said employment:
A. TERM OF EMPLOYMENT
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1. Term. The Bank hereby employs Executive and Executive hereby accepts
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employment with the Bank for the period (the "Term") commencing April 15,
1998, the "Effective Date" and terminating on such date and upon such terms as
provided for in Paragraph F of this Agreement.
B. DUTIES OF THE EXECUTIVE
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1. Duties. Executive shall perform the duties of Executive Vice
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President/Cashier of the Bank, subject to the powers by law vested in the Board
of Directors of the Bank and in the Bank's shareholders. During the Term,
Executive shall perform exclusively the services herein contemplated to be
performed by faithfully, diligently and to the best of Executive's ability,
consistent with the highest and best standards of the banking industry and in
compliance with all applicable laws and the Bank's Articles of Incorporation,
Bylaws and internal written policies.
2. Conflicts of Interest. Except as permitted by the prior written
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consent of the Board of Directors of the Bank, Executive shall devote
Executive's entire productive time, ability and attention to the business of the
Bank during the Term and 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 the Bank's interests. Notwithstanding the foregoing, Executive may
make investments of a passive nature in any business or venture, provided
however, that neither such business or venture is in competition, directly or
indirectly, in any manner with the Bank.
C. COMPENSATION
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1. Salary. For Executive's services hereunder, the Bank shall pay or
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cause to be paid as annual base salary to Executive the sum of Ninety Thousand
Dollars ($90,000) for each year (i.e., 12-month period) of the Term. Said salary
shall be payable in equal installments in conformity with the Bank's normal
payroll period. Annual adjustments after the first year of the Term may be made
in the Discretion of the Board of Directors.
2. Bonuses. Executive shall participate in bonus programs as approved
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by the Board of Directors from time to time.
D. EXECUTIVE BENEFITS
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1. Vacation. Executive shall be entitled to a four (4) week vacation
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during each year of the Term; provided, however, that for each year of the Term,
Executive is required to and shall take at least two (2) weeks of said vacation
(the "Mandatory Vacation"), which shall be taken consecutively. Executive shall
not be entitled to vacation pay in lieu of vacation.
2. Automobile. During the Term hereunder, the Bank shall provide
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Executive, for Executive's sole use, a suitable full-sized automobile, which
automobile shall at no time be older than three (3) years. The Bank shall pay
all operating expenses of any nature whatsoever with regard to such automobile,
provided Executive furnishes to the Bank adequate records and other documentary
evidence required by federal and state statutes and regulations issued by the
appropriate taxing authorities for the substantiation of such payments as
deductible business expenses of the Bank and not as deductible compensation to
Executive. The Bank shall also procure and maintain in force an automobile
liability insurance policy on such automobile, containing all reasonable and
necessary coverage.
3. Group Medical and Life Insurance Benefits. The Bank shall provide
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for Executive, at the Bank's expense, participation in the bank's existing
California Banker's Association Group Insurance Program ("CBA Program") at a
level commensurate for an employee of Executive's salary level. Said coverage
shall be in existence or shall take effect as of the Effective Date hereof and
shall continue throughout the Term. The Bank's liability to Executive for any
breach
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of this paragraph shall be limited to the amount of premiums required hereunder
to be payable by the Bank to obtain or maintain, as applicable, the coverage
contemplated herein.
4. Stock Options. The Bank shall grant Executive a stock option to
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purchase up to 10,000 shares of the Bank's authorized but unissued Common Stock,
at an exercise price equal to market value on the date of grant, subject to
compliance with any applicable requirements of the Bank's Stock Option Permit
issued by the State Banking Department. The Bank and Executive agree that such
option shall be for a term of ten (10) years, and will vest over a period of
five (5) years from the date of grant as follows: twenty percent (20%) will be
exercisable on or after each of the first five anniversaries of the date of
grant of the stock option. The Bank and Executive also agree that, to the
maximum extent permitted by law, the option will qualify as an "incentive stock
option" within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended. Such stock option will be granted to Executive pursuant to the
Bank's current Stock Option Plan, and an agreement between the Bank and
Executive containing the terms as may be agreed upon by such parties.
5. 401-(k) Plan. Executive shall be entitled to participate in the
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Bank's 401 (k) Plan subject to the eligibility and vesting requirements set
forth in said Plan.
E. REIMBURSEMENT FOR BUSINESS EXPENSES
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Executive shall be entitled to reimbursement by the Bank for any
ordinary and necessary business expenses incurred by Executive in the
performance of Executive's duties and in acting for the Bank during the Term,
which types of expenditures shall be determined by the President of the Bank or,
the Board of Directors, provided that:
(a) Each such expenditure is of a nature qualifying it as a proper
deduction on the federal and state income tax returns of the Bank as a business
expense and not as deductible compensation to Executive; and
(b) Executive furnishes to the Bank adequate records and other
documentary evidence required by federal and state statutes and regulations
issued by the appropriate taxing authorities fr the substantiation of such
expenditures as deductible business expenses of the Bank and not as deductible
compensation to Executive.
F. TERMINATION
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1. Termination for Cause. The Bank may terminate this Agreement at any
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time by action of the Board of Directors, if Executive fails to perform or
habitually neglects the duties which she is required to perform hereunder, if
Executive engages in illegal activity which materially adversely affects the
Bank's reputation in the community or which evidences the lack of Executive's
fitness or ability to perform the Executive's duties as reasonably determined by
the Board of Directors in good faith, or if Executive commits any act which
would cause termination of
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coverage under the Bank's Bankers' Blanket Bond as to Executive (as
distinguished from termination of coverage as to the Bank as a whole). In the
event the Bank terminates this Agreement for cause as provided herein, Executive
shall not be eligible for any severance benefits otherwise contemplated by this
Agreement. Such termination shall not prejudice any remedy which the Bank may
have at law, in equity, or under this Agreement.
2. Death or Disability. In the event of Executive's death or if
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Executive is found to be physically or mentally disabled (as hereinafter
defined) by the Board of Directors in good faith, this Agreement shall terminate
without any further liability or obligation by the Bank to Executive.
For purposes of this Agreement only, physical or mental disability shall
be defined as Executive being unable to fully perform under this Agreement for a
continuous period of ninety (90) days or a cumulative period of 120 days in any
calendar year. If there should be a dispute between the Bank and Executive as to
Executive's physical or mental disability for purposes of this Agreement, the
question shall be settled by the opinion of an impartial reputable physician or
psychiatrist agreed upon by the parties or their representatives, or if the
parties cannot agree within ten (10) days after a request for designation of
such party, then by a physician or psychiatrist designated by the San Bernardino
County Medical Association. The certification of such physician or psychiatrist
as to the question in dispute shall be final and binding upon the parties
hereto.
3. Action by Supervisory Authority. If the Bank is closed by or taken
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over by the California State Banking Department or other supervisory authority,
including the Federal Deposit Insurance Corporation, such bank supervisory
authority may immediately terminate this Agreement without further liability or
obligation by the Bank to Executive.
4. Merger or Other Corporate Reorganization. In the event of: (i) a
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merger where the Bank is not the surviving corporation, (ii) a transfer of all
or substantially all of the assets of the Bank or (iii) any acquisition,
consolidation or other corporate reorganization where there is a change in
ownership of at least fifty-one percent (51%) except as may result from a
transfer of shares to another corporation in exchange for at least eighty
percent (80%) control of that corporation, and, in the event that this Agreement
and Executive's employment are terminated for any reason during the two-year
period immediately following the effective date of consummation of such merger
or other corporate reorganization by either Executive or by the surviving
entity, in the event of a merger; by either Executive or the transferee of
assets in the event of a purchase or sale; or by either Executive or the
acquirer, in the event of an acquisition of stock in the Bank, then Executive
shall be entitled to the same severance benefits as contemplated by Paragraph
F.5 below for a six (6) month period immediately following such termination of
this Agreement.
5. Termination Without Cause. Notwithstanding anything to the contrary
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contained herein, it is agreed by the parties hereto that either the Bank or
Executive may at any time elect to terminate this Agreement and Executive's
employment by the Bank for any reason. Such termination shall be effective
thirty (30) days following proper delivery of notice of termination
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to the non-terminating party in accordance with the notice provisions set forth
herein. In the event this Agreement is terminated by Executive, all benefits
provided by the Bank hereunder to Executive shall cease upon the effective date
of such termination of this Agreement and Executive shall not be entitled to any
severance benefits whatsoever. In the event this Agreement is terminated by the
Bank (other than in accordance with paragraph F.1 hereof) Executive shall be
entitled to each of the following severance benefits commencing upon the
effective date of termination of this Agreement: (a) Executive shall continue to
be paid Executive's base salary for a period of six (6) months immediately
following the effective date of Executive's termination, which payments shall be
payable to Executive in accordance with the normal method of payment as
specified in this Agreement; and (b) Executive shall be entitled to maintain all
medical and life insurance benefits which were granted to her during her
employment with the Bank for a period of six (6) months immediately following
the effective date of Executive's termination.
6. Effect of Termination. In the event of the termination of this
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Agreement for any reason (except as provided herein), Executive shall be
entitled to the salary and bonus, if any, earned by Executive prior to the date
of termination as provided for in this Agreement (except that Executive shall
not be entitled to any bonus in the event her employment is terminated for cause
as provided in Paragraph F.1 above), computed pro rata up to and including that
date; but Executive shall be entitled to no further compensation for services
rendered after the date of termination.
G. GENERAL PROVISIONS
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1. Trade Secrets. During the Term, Executive will have access to and
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become acquainted with what Executive and the Bank acknowledge are trade
secrets, to wit, knowledge or data concerning the Bank, including its operations
and methods of doing business, and the identity of customers of the Bank,
including knowledge of their financial condition and their financial needs.
Executive shall not disclose any of the aforesaid trade secrets, directly or
indirectly, or use them in any way, either during the Term or for a period of
two (2) years after the termination of this Agreement, except as required in the
course of Executive's employment with the Bank.
2. Covenant Not to Compete. Executive hereby covenants and agrees that
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for a period of eighteen (18) months following termination of this Agreement,
Executive shall not engage in the business of banking within a twenty-five (25)
mile radius of the Bank's head office, or any branch office, or of any location
for which the Bank has applied for a branch office. Notwithstanding the
foregoing, this covenant not to compete shall not be applicable in the event
that this Agreement is terminated in accordance with Paragraph F.4 hereof.
3. Indemnification. To the extent permitted by law, applicable statues
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and the Bylaws or resolutions of the Bank in effect from time to time, the Bank
shall indemnify Executive against liability or loss arising out of Executive's
actual or asserted misfeasance or non- feasance in the performance of
Executive's duties or out of any actual or asserted wrongful act against, or by,
the Bank including but not limited to judgments, fines, settlements and expenses
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incurred in the defense of actions, proceedings and appeals therefrom. However,
the Bank shall have no duty to indemnify Executive with respect to any claim,
issue or matter as to which Executive has been adjudged to be liable to the Bank
in the performance of her duties, unless and only to the extent that the court
in which such action was brought shall determine upon application that, in view
of all of the circumstances of the case, Executive is fairly and reasonably
entitled to indemnification for the expenses which such court shall determine.
The Bank shall endeavor to apply for and obtain Directors and Officers Liability
Insurance to indemnify and insure the Bank and Executive from and against the
aforesaid liabilities. The provisions of this paragraph shall apply to the
estate, executor, administrator, heirs, legatees or devisees of Executive.
4. Return of Documents. Executive expressly agrees that all manuals,
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documents, files, reports, studies, instruments or other materials used and/or
developed by Executive during the Term are solely the property of the Bank, and
that Executive has no right, title or interest therein. Upon termination of this
Agreement, Executive or Executive's representative shall promptly deliver
possession of all said property to the Bank in good condition.
5. Notices. All notices, demands or other communications hereunder
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shall be in writing and shall be delivered in person (professional courier
acceptable); or by United States mail, certified or registered, postage prepaid,
with return receipt requested; or by facsimile transmission; or otherwise
actually delivered, to the addresses for the parties appearing at the inception
of this agreement. The persons or addresses to which mailings or deliveries
shall be made may change from time to time by notice given pursuant to the
provisions of this Paragraph G.5. Any notice, demand or other communication
given pursuant to this Agreement shall be deemed to have been given on the date
actually delivered, if delivered in person, three days following the date
mailed, if delivered by U.S. mail, or upon written confirmation of transmission,
if delivered by facsimile.
6. Review by Counsel. Executive represents and warrants to the Bank
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that she has had this Agreement reviewed by independent legal counsel of her
choice, or if she has not, that she has had the opportunity to do so, and hereby
waives any claim, objection or defense on the grounds that this Agreement has
not been reviewed by legal counsel of her choice.
7. California Law. This Agreement is to be governed by and construed in
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accordance with the laws of the State of California.
8. Captions and Paragraph Headings. Captions and paragraph headings
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shall used herein are for convenience only and are not a part of this Agreement
and not be used in construing it.
9. Invalid Provisions. Should any provision of this Agreement for any
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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 provision
eliminated.
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10. Entire Agreement. This Agreement contains the entire agreement of
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the parties. It supersedes any and all other agreements, either oral or in
writing, between the parties hereto with respect to the employment of Executive
by the Bank. 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. This Agreement may not be modified or
amended by oral agreement but only by an agreement in writing signed by both the
Bank and Executive.
11. Receipt of Agreement. Each of the parties hereto acknowledges that
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he/she has read this Agreement in its entirety and does hereby acknowledge
receipt of a fully executed copy thereof. A fully executed copy shall be an
original for all purposes, and is a duplicate original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BY: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
President and Chief Executive Officer
/s/ Xxxx X. Xxxxx
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XXXX X. XXXXX
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