EXHIBIT 10.6
EMPLOYMENT AGREEMENT
This Employment Agreement (the -Agreement") is made and entered into as of the
1st day of December, 2000. by and between Palomar Community Bank, a California
state-chartered banking corporation (the "Bank" or "Employer") and Xxxxxxx
Xxxxxxx (the "Employee") (collectively, the "parties"):
WHEREAS, Bank and its parent corporation, Community West Bancshares
("Community") has entered into that certain Stock Purchase Agreement dated
December 1, 2000 (the "Stock Purchase Agreement") with Centennial First
Financial Services ("Centennial") and the Employee to sell Bank to Centennial;
WHEREAS, Bank and Centennial desire to retain Employee as President and Chief
Executive Officer of Bank on the Effective Time as that term is defined in the
Stock Purchase Agreement (the "Agreement Effective Date");
WHEREAS, the parties desire to enter into an agreement for the purpose or
retaining Employee's services as President and Chief Executive Officer of the
Bank;
NOW, THEREFORE IT IS MUTUALLY AGREED AS FOLLOWS:
1. Employment and Duties. Effective only at the Agreement Effective Date,
Employer and
Employee hereby enter into this Agreement upon the terms and conditions
hereinafter set forth. During the Employment Term.. Employee is hereby employed,
at the pleasure of the Board of Directors of the Bank (the "Board"), as the
President and Chief Executive Officer of Employer. Employee shall perform the
customary duties of a President and Chief Executive Officer of a California
state-chartered banking corporation (a "California Bank") and such attendant
duties as may, from time to time, be reasonably requested of Employee by the
Board. In connection with Employee's employment as President of a California
Bank, Employee's duties shall include serving without compensation on the Board.
Employee shall also serve as a member of the board of directors of Centennial at
the Agreement Effective Date.
2. Extent of Services.
a. Employee shall devote Employee's full time, ability and attention to the
business of Employer during the term of this Agreement, and shall neither
directly nor indirectly render any services of a business, commercial or
professional nature to any other person, firm,, corporation or organization for
compensation without the prior written consent of the Board or the Chairman.
b. Nothing contained herein shall be construed to prevent Employee from
investing Employee's assets in any form or manner which does not in any manner
or for any amount of time interfere with Employee's performance of services on
behalf of Employer.
3. Term of Employment. Subject to prior termination of this Agreement as
hereinafter provided, Employer hereby employs Employee.. and Employee hereby
accepts employment with Employer, for a period beginning on the Agreement
Effective Date and ending three years from the Agreement Effective Date;
provided, however. that this Agreement will automatically extend for -an
additional Year beginning on the third Year anniversary of the Agreement
Effective Date. unless terminated by the Board not less than 90 days prior to
the end of the initial term (the "Employment Term").
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1. Compensation and Benefits. In consideration of Employee's services to
Employer during the Employment Term, Employer agrees to compensate Employee,
subject to such limitations as may exist under any applicable state or federal
banking law or regulation, as follows:
a. Base Compensation. Employer shall pay or cause to be paid to Employee a base
compensation at the rate of $135,000 per year, payable in conformity with
Employer's normal payroll procedures (the "Base Salary"). Such Base Salary shall
be reviewed by the President and Chief Executive Officer of Centennial each
year.
b. Bonus. Employer shall be eligible to receive an annual bonus for each fiscal
year of the Bank. The bonus will be awarded by the President and Chief Executive
Officer of Centennial. subject to his sole discretion, based on reasonable
performance goals And administrative procedures established by the Board.
C. General Expenses. Employer shall, upon submission and approval of written
statements and bills in accordance with the then regular procedures of Employer,
pay or reimburse Employee for any and all necessary, customary and usual
expenses incurred by him while traveling for or on behalf of Employer, and any
and all other necessary, customary or usual expenses (including, entertainment)
incurred by Employee for or on behalf of Employer in the normal course of
business, as determined to be appropriate by Employer.
d. Insurance. Employee (and Employee's family, where applicable) shall be
entitled to participate in such group life insurance, health and long-term
disability plans as are provided by Employer to its employees and/or senior
executives, with such terms, conditions and contributions as Employer generally
provides its other employees and/or senior executives. Employee shall have the
right, in Employee's discretion, to designate the beneficiary or beneficiaries
of any such insurance.
e. Automobile Allowance. During the term of this Agreement, Employee shall be
entitled to an Employer leased automobile at a maximum lease rate of $750 per
month. Employer shall be obligated to pay the expenditures with respect to the
registration, operation. insurance and maintenance of the automobile.
f. Vacation. Employee shall accrue four (4) weeks' paid vacation leave per year,
pro rated on a daily basis for any partial calendar year in which this Agreement
is in effect. Such vacation leave shall be taken at such time or times as are
mutually agreed upon by Employee and the Board and accordance with Employer's
vacation leave policy.. provided, that at least two (2) weeks of such vacation
shall be taken consecutively. Employee acknowledges that the requirement of two
(2) consecutive weeks of vacation is required by sound banking practice. For
each calendar year, the President and Chief Executive Officer of Centennial
shall decide, in its discretion. either (i) to pay Employee for any unused
vacation time for such calendar year or (ii) to carry over any unused vacation
time for such calendar year to the next calendar year, provided, however, that
Employee shall accrue no additional vacation time at any time that the Employee
has accrued and unused vacation time of six (6) weeks.
g. Salary Continuation Agreement Within six months of the Agreement Effective
Date, Employer shall establish a salary continuation plan and enter 'into a
salary continuation agreement with Employer. The salary continuation agreement
will provide Employee with benefit payments of $75,000 per year for a period of
15 years beginning, at the time Employee attains the age of 65, provided that
Employee remains in the continuous employ of Employer until Employee reaches age
65, and provide pro rated benefits payable beginning at age 65 (or at the option
of Employer, payable in a lump sum equal to the present value of such future
payments at the date of termination) if Employee dies, is disabled or is
terminated without cause prior to attaining the age of 65.
h. Stock Options. Within 30 days of the Agreement Effective Date, pursuant to
the stock option plan of Centennial, Employee shall be granted an option to
acquire 10,000 shares of Employer's parent's shares of common stock at their
fair market value at the date of grant, subject to the terms and conditions of
the stock option agreement, including the vesting requirements.
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i. Other Benefits. Employee shall be entitled to participate during the
Employment Term in such other benefits of Employer, including 401 (k) plan,
employee stock ownership plan, and bonus programs, if any, as Employer now or
hereafter shall provide for its employees and/or senior executives generally, in
accordance with the provisions applicable terms and conditions thereof.
5. Termination of Agreement . This Agreement may be terminated with or without
cause during the Employment Term in accordance with this Section 5. In the event
of such termination. Employee shall be released from all obligations under this
Agreement, except that Employee shall remain subject to Sections 7, 8, 9(b),
9(c), 1 3 15 and 18, and Employer shall be released from all obligations under
this Agreement, except as otherwise provided in this Section 5 and Sections
9(b), 13, 15 and 18.
11. Early Termination by Employer Without Cause or by Employee upon Change in
Title or Change in Office Location. This Agreement and Employee's employment may
be terminated (1) by Employer without cause, for any reason whatsoever, in the
sole, absolute and unreviewable discretion of Employer, upon written notice by
the Board to Employee; or (ii) by Employee in the event that Employer changes
Employee's title from that of President and Chief Executive Officer of Employer.
changes Employee's duties from those which are customary for a President and
Chief Executive Officer of a California Bank, or changes the location of the
office to which Employee is required to report by more than 40 miles. In the
event of termination pursuant to this Section 5(a), Employee shall receive a
single sum severance payment equal to twelve (12) months of his then current
Base Salary less customary withholdings, payable within two (21) days of such
termination, plus continued benefits under this Agreement for a period of six
(6) months, plus payment of all accrued vacation pay. Such severance pay shall
constitute liquidated damages in lieu of any and all claims by Employee against
Employer, and shall be in full and complete satisfaction of any and all rights
which Employee may enjoy hereunder, and are expressly conditioned upon receipt
by Employer of a full and unconditional release (in the form of Exhibit A) From
Employee of any and all liability of Employer or any of its affiliates,
directors. officers. employees and agents, arising) out of this Agreement or out
of the employment relationship or termination of the employment relationship
between Employee and Employer.
b. Early Termination by Employer for Cause. This Agreement and Employee's
employment may be terminated for cause by Employer upon written notice to
Employee, and Employee shall not be entitled to receive compensation or other
benefits for any period after termination for cause. "For cause" pursuant to
this Agreement shall include, but not be limited to: (1) any act of dishonesty;
(11) any breach of this Agreement or any breach of a fiduciary duty (involving
personal profit); (iii) any neglect of duties or negligence in carrying out
duties customary to that of a President and Chief Executive Officer of a
California bank; (iv) any willful violation of any law, rule or regulation,
which, by virtue of bank regulatory restrictions imposed as a result thereof,
would have a material adverse effect on the business or financial prospects of
Employer; (v) any commission of any crime (other than a traffic violation or
similar offense); (vi) any failure by Employee to qualify at any time during the
Employment Term for a fidelity bond as described in Section 6 of this Agreement,
or (vii) the requirement to comply with any final cease-and-desist order or
written agreement with any applicable state or federal bank regulatory authority
which requests or orders Employee's dismissal or limits Employee's employment
duties. Termination for cause by Employer shall not constitute a waiver of any
remedies which may otherwise be available to Employer Xxxxxx law. equity. or
this Agreement.
C. Early Termination by Employee. Employee may terminate this Agreement.
including pursuant to Section 5(a), upon ninety (90) days' written notice to
Employer. Except as otherwise provided by Sections 5(a) or 5(f), Employee shall
not be entitled to receive compensation or other benefits under this Agreement
for any period after such early termination by Employee.
d. Death During Employment, This Agreement and all benefits hereunder shall
terminate immediately upon the death of Employee. provided that such termination
of benefits shall not operate to prejudice or forfeit the rights of any
beneficiary or beneficiaries of any life insurance policy on the life of
Employee obtained pursuant to Section 4(d) hereof.
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e. Automatic Termination Upon Closure or Take-Over. This Agreement shall
terminate automatically if Employer is closed or taken over by the California
Department of Financial Institutions or by any other supervisory authority.
f. Merger or Corporate Dissolution.
i. In the event of a (a) merger or reorganization of Employer such that
Centennial does not own a majority of the capital stock of the surviving
corporation; (b) merger or reorganization of Centennial such that the
shareholders of Centennial immediately prior to the transaction do not own a
majority of the capital stock of the surviving corporation; (c) a transfer of
all or substantially all of the assets of Centennial or Employer-, (d) any other
corporate transaction in which there is a change in ownership of the outstanding
shares of Centennial or Employer wherein more than fifty percent (50%) of the
outstanding shares of Centennial or Employer are transferred to -any other
partnership, corporation, trust or business entity; or (e) the dissolution of
Employer (a "Change in Control"); this Agreement shall terminate, and Employee
shall receive a single sum severance payment equal to twenty-four (24) months of
his then current Base Salary, less customary withholdings and taxes, plus
continued benefits under this Agreement for a period of twenty four (24) months,
plus payment of all accrued vacation pay. Such severance pay shall constitute
liquidated damages in lieu of any and all claims by Employee against Employer,
and shall be in full and complete satisfaction of any and all rights which
Employee may enjoy hereunder, and are expressly conditioned upon receipt by
Employer of a fall and unconditional release (in the form of Exhibit A) from
Employee of any and all liability of Employer or any of its affiliates,
directors, officers, employees and agents, arising out of this Agreement or out
of the employment relationship or termination of the employment relationship
between Employee and Employer.
ii. Notwithstanding anything the contrary provided herein, if Centennial is not
the surviving entity in any transaction referred to in this Section 5(f) hereof
and said transaction is in any manner the result of any action taken at the
direction of any supervisory authority whatsoever, then in such event this
Agreement shall terminate immediately upon the consummation of such transaction
and Employee agrees that all rights, duties, obligations. and benefits herein
contained shall thereupon terminate and that Employee shall be entitled to no
further compensation or benefits from Employer save and except those rights,
duties, obligations, benefits and/or compensation accrued and/or earned prior to
the date of such termination.
6. Fidelity Bond. Employee, agrees that he will furnish all information and take
any other steps necessary to enable Employer to obtain or maintain a fidelity
bond conditional on the rendering of a true account by Employee of all moneys.
goods, or other property which may come into the custody, charge or possession
of Employee during the term of Employee's employment. The surety company issuing
the bond and the amount of the bond must be acceptable to Employer and satisfy
all banking laws and regulations. All premiums on the bond are to be paid by
Employer. If Employee cannot qualify for a fidelity bond at any time during the
term of this Agreement. Employer shall have the option to terminate this
Agreement immediately, which shall constitute a termination for cause as defined
in Section 5(b) hereof.
Printed Material. All written or printed materials which shall include, but not
be limited to. computer software. programs and files, used by Employee in
performing duties for Employer are, and shall remain, the property of Employer,
provided that any materials which belonged personally to Employee prior to his
employment with Employer are, and shall remain, the property of Employee. Upon
termination of Employee's employment with Employer, Employee shall return such
applicable written or printed materials to Employer.
8. Disclosure of Information. Employee recognizes and acknowledges that Employer
possesses trade secrets and other confidential and/or proprietary information
concerning its business affairs and methods of operation which constitute
valuable, confidential, and unique assets of its business and that of its
affiliates ("Proprietary Information"), which Employer has developed through a
substantial expenditure of time and money and which are and will continue to be
utilized in Employer's business and which are not -generally known in the trade.
At any time
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before termination of Employee's employment and for a period of two years
thereafter, Employee agrees not to disclose to anyone any Proprietary
Information and not to make use of any Proprietary Information for his own
purposes or for the benefit of anyone other than Employer under any
circumstances. For purposes of this Section 8, Proprietary Information includes,
without limitation, all information regarding products, services, processes,
know-how, customers, suppliers, product and/or service development, business and
capital plans. research, finances, marketing, pricing, costs and any other
confidential matters relating to Employer or any affiliate of Employer. Employee
recognizes and acknowledges that all financial information concerning any of
Employer's customers. products or financial results is strictly confidential,
and Employee shall not, at any time before or after termination of this
Agreement, disclose to anyone any such information or any part thereof, for any
reason or purpose whatsoever except to the extent that such information is
already otherwise publicly available or to the extent such disclosure is
required by Employee in order to comply with judicial process or applicable
regulations of any state or federal bank regulatory agency.
Employee hereby acknowledges the particular value to the Bank of this Section 8,
the loss of which cannot be reasonably or adequately compensated in an action at
law or in arbitration. Therefore, Employee expressly agrees that the Bank- in
addition to my other rights or remedies that the Bank shall possess, shall be
entitled to injunctive and other equitable relief to prevent or remedy a breach
of this Section 8 by Employee, without the necessity of posting any bond.
Employee's obligation under this Section 8 shall survive the termination of this
Agreement and/or the termination of employment.
9. Noncompetition by Employee; Consulting Agreement.
a. Employee shall not, during the Employment Term, directly or indirectly,
either as an employee, employer consultant. agent, principal, partner,
shareholder, corporate officer. director. or in any other individual or
representative capacity, engage or participate in any competing bank or
financial institution or financial services business without the prior written
consent of the Board; provided, however, Employee shall not be restricted by
this Section from owning securities of corporations listed on a national
securities exchange or regularly traded by national securities dealers so long
as such investment does not exceed five percent of the market value of the
outstanding securities of such corporation.
b. In the event that Employee's employment is terminated pursuant to Section
5(a) or Section 5(c) hereof within twelve (12) months after the Agreement
Effective Date (the -'Early Termination Date"), Employee agrees to provide
consulting services and not to compete with Employer under the terms and
conditions set forth in the Consulting and Noncompetition Agreement attached
hereto as Exhibit B ("Consulting Agreement").
C. Notwithstanding anything to the contrary set forth elsewhere in this
Agreement, Employee agrees that (i) the Consulting Agreement shall take effect
only in the event there is an Early Termination Date; and (ii) the obligation of
the Bank- to pay fees under the Consulting Agreement is wholly independent of
and shall in no way effect the provisions set forth in Section 5(a) -and/or 5(c)
including, without limitation, the severance pay provisions set forth in Section
5(a) or the provision in Section 5(c) which provides that, except as provided in
Section 5(f), Employee shall not be entitled to receive compensation or other
benefits under this Agreement for any period after early termination by Employee
pursuant to Section 5(c).
10. Notices. Any notices to be given hereunder by either party to the other may
be effected in writing either by personal delivery or by mail, registered or
certified, postage prepaid with return receipt requested. Notices to Employer
shall be given to the Bank at its then current principal office, c/o Chairman of
the Board of Directors. Notices to Employee shall be sent to Employee's then
current personal residence. Notices delivered personally shall be deemed
communicated as of actual receipt; mailed notices shall be deemed communicated
as of five (5) calendar days after mailing.
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11. Entire Agreement Except with respect to the Stock Purchase Agreement, this
Agreement
supersedes any and all other agreements, either oral or in -writing, between the
parties hereto with respect to the employment of Employee by Employer and
contains all of the covenants and agreements between the parties with respect to
such employment. 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 and binding. Any modification of this Agreement
will be effective only if it is in writing signed by all parties to the
Agreement.
12. Severability. In the event that any term or condition contained in this
Agreement shall, for any reason, be held by a court of competent jurisdiction to
be invalid, illegal or unenforceable in any respect. such illegality or
unenforceability shall not affect any other term or condition of this Agreement,
but this Agreement shall be construed as if such invalid or illegal or
unenforceable term or condition had never been contained herein.
13. Choice of Law and Forum. This Agreement shall be governed by and construed
in accordance with the laws of the State of California,, except to the extent
preempted by the laws of the United States. Any action or proceeding brought
upon, or arising out of, this Agreement or its termination shall be brought in a
forum located within the County of San Bernardino, State of California, and
Employee hereby agrees to be subject to service of process in California.
14. Waiver. The parties hereto shall not be deemed to have waived any of their
respective rights under this Agreement unless the waiver is in writing and
signed by such waiving party. No delay in exercising any rights shall be a
waiver nor shall a waiver on one occasion operate as a waiver of such right on a
future occasion.
15. Indemnification. During the Employment Term, Employer shall indemnify
Employee, to the maximum extent permitted under the articles of incorporation
and bylaws of Employer and governing laws and regulations, against expenses
(including attorneys' fees), Judgments, damages, liabilities. fines and amounts
paid in settlement actually and reasonably incurred by Employee in connection
with any threatened or pending action, stilt or proceeding to which Employee is
made a party by reason of his position as an officer or agent of Employer or by
reason of his service at the request of Employer, if Employee acted in good
faith and in a manner believed to be in or not opposed to the best interests of
Employer. If available at rates determined by Employer, in its sole discretion,
to be reasonable, Employer shall endeavor to apply for and obtain directors' and
officers' liability insurance to indemnify and insure Employer and Employee from
such liability or loss.
Notwithstanding the foregoing, in any administrative proceeding or civil action
initiated by any federal or state banking agency, Employer may only reimburse,
indemnify or hold harmless Employee if Employer is in compliance with any
applicable statute, rule, regulation or policy of the Federal Deposit Insurance
Corporation, the California Department of Financial Institutions, or any other
state or federal bank regulatory agency which then has jurisdiction over the
Bank regarding permissible indemnification payments.
16. Assignment. 'Neither this Agreement nor any of the rights or benefits
hereunder shall be subject to execution, attachment or similar process, nor may
this Agreement or any rights or benefits hereunder be assigned. transferred,
pledged or hypothecated without the written consent of both parties hereto,
except as provided in Sections 4(d) and 5(ld) hereof.
17. Captions and Paragraph Headings. Captions and paragraph headings used herein
are for convenience and ready reference only and are not a pan of this Agreement
and shall not be i the construction or interpretation thereof.
18. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or breach
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of this Agreement shall be settled by arbitration in accordance with the
Employment Arbitration Rules of the American Arbitration Association, and
judgment on the award rendered by the arbitrators may be entered in any court
having jurisdiction. There shall be three arbitrators, one to be chosen directly
by each party, and the third arbitrator to be selected by the two arbitrators so
chosen. If any arbitration proceeding is brought for the enforcement of this
Agreement or because of an alleged dispute, breach or default in connection with
this Agreement, (i) the nonprevailing party shall pay the fees of the
arbitrators and all other costs of the arbitration, including the cost of any
record or transcripts of the -arbitrations and administrative fees; and (ii) the
prevailing party shall be entitled to recover reasonable attorney's fees and any
other costs and expenses incurred in that action or proceeding, in addition to
any other relief to which it or lie may be entitled.
19. Withholding Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state or local law and any
additional withholding to which Employee has agreed.
20. Effective Date of the Agreement. Anything herein to the contrary
notwithstanding, the Agreement and the obligations of Bank, Community,
Centennial and Employee hereunder shall not be effective until the Effective
Time, as that term is defined in the Stock Purchase Agreement, and should the
Stock Purchase Agreement terminate, this Agreement shall terminate and the
par-ties hereto, including Bank and Community shall owe no further duty or
obligation to the others on account of this Agreement.
Executed on this 1" day of December, 2000.
EMPLOYER: /s/ Xxxxxx XxxxXxxx EMPLOYEE: /s/ Xxxxxxx Xxxxxxx
----------------------------- ------------------------------
PALOMAR COMMUNITY BANK
By: Chairman of the Board of Directors Xxxxxxx Xxxxxxx
Agreed and Accepted: CENTENNIAL FIRST FINANCIAL SERVICES
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
By: President and Chief Executive Officer
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