Exhibit 10.2
SPECIAL COMPENSATION AGREEMENT
THIS SPECIAL COMPENSATION AGREEMENT (the "Agreement") is made and
entered into as of May 19, 2000, by and among IMPERIAL BANCORP, a registered
bank holding company ("Bancorp"), IMPERIAL BANK, a California banking
corporation ("Bank") and XXXXXX X. XXXXXXXXX, an individual (the "Executive").
(Bancorp and Bank shall be collectively referred to as "the Company").
RECITALS
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A. The Executive is currently employed by Bank.
B. This Agreement sets forth the Special Compensation (as defined in
Section 3 below) which the Company agrees it will pay to the Executive upon a
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Termination Following Change in Control (as defined in Section 1(P) below).
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C. The board of directors of both Bancorp and Bank, with the Executive
specifically excluded from consideration of the matter, have approved the
execution of this Agreement and the performance of the obligations hereunder.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter contained, and for other good and valuable
consideration, it is hereby agreed among the parties hereto as follows:
1. Definitions
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(a) Average Annual Compensation. The average Compensation (as defined
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in Section 1(e) below) paid by the Company to the Executive during the five (5)
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most recent calendar years ending prior to the Change in Control of the Company.
(b) Cause. For purposes of this Agreement only, termination for
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"Cause" shall mean:
(1) termination of the Executive's employment on the basis of
fraud, misappropriation or embezzlement on the part of the Executive;
(2) termination because Executive is convicted of (or pleads
nolo contendere to) a crime of dishonesty or breach of trust or crime leading to
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incarceration of more than 90 days (including, without limitation, embezzlement
or theft against Company) or payment of a penalty or fine of not less than
$10,000; or
(3) termination after issuance of an Order by a regulatory
agency, administrative tribunal or court pursuant to Section 8 of the Federal
Deposit Insurance Act, Section 1913.5 of the California Financial Code or
successor statutes.
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Cause unless and until Bank delivers to the Executive a Notice of
Termination (as defined in Section 1(k) below) and a copy of the resolution duly
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adopted by the affirmative vote of not less than three-quarters of the entire
membership of Bank's board of directors at a meeting of the board called and
held for the purpose of termination of the Executive for Cause (after reasonable
notice to the Executive and an opportunity for the Executive, together with the
Executive's counsel, to be heard before the board), finding that in the good
faith opinion of the board the Executive was guilty of or the subject of any of
the items specified above, and specifying the particulars thereof in detail.
(c) Change in Control. A Change in Control shall be
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deemed to have occurred contemporaneously with the occurrence of the first of
any of the following events:
(1) any consolidation or merger of Bank or
Bancorp unless its voting securities outstanding immediately before the merger
or consolidation would continue to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity) at least 50
percent of the combined voting power of the voting securities of the surviving
entity outstanding immediately after such merger or consolidation;
(2) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all or substantially
all of the assets of Bank or Bancorp;
(3) the shareholders of Bank or Bancorp approve
any plan or proposal for the liquidation or dissolution of Bank or Bancorp;
(4) any person (as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended, and the
regulations thereunder (collectively, the "Exchange Act")) becomes the
beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of
25% or more of Bank's or Bancorp's issued and outstanding Common Stock
(beneficial owners of 5% or more of Bank's or Bancorp's issued and outstanding
Common Stock on the date of this Agreement shall not be considered persons for
purposes of this section), except as a result of an agreement to vote securities
unless its ultimate purpose is to cause what would otherwise be a Change in
Control or to force one or more directors or member of senior management to be
replaced, as reasonably determined by Bancorp's board of directors; or
(5) a majority of the members of Bank's or
Bancorp's board of directors is replaced during any two-year period by directors
whose appointment or election is not approved by two-thirds of the members of
the board of directors at the start of such two-year period.
(d) Code. The Internal Revenue Code of 1986, as amended.
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(e) Compensation. The total taxable gross cash compensation
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payable to the Executive by Company, determined before tax withholding,
Executive's contributions to benefit programs (such as Section 401(k) plan,
cafeteria plan or Executive Deferral Plan contributions), but not including
distributions from any deferred compensation or any other benefit plan, any
equity compensation ( such as stock option gains), or any taxable non cash
benefits.
(f) Date of Termination. The "Date of Termination" of
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employment shall mean:
(1) if this Agreement is terminated by the Company
based on the Executive's Disability, 30 days after Notice of Termination is
given to the Executive; provided, however, that the Executive shall not have
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returned to the performance of the Executive's duties on a full-time basis
during such 30-day period;
(2) if this Agreement is terminated based on the
Executive's Retirement, the date on which the Notice of Termination is given;
(3) if this Agreement is terminated based on the
Executive's Death, Good Reason or for Other Reason, the effective date of such
termination; or
(4) if this Agreement is terminated for Cause, the
date Bank delivers the resolution of Bank adopted in accordance with Section
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l(b) above.
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(g) Death. Termination for "Death" shall mean termination
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of the Executive's employment after the Executive has been declared legally dead
pursuant to the applicable laws.
(h) Disability. Termination for "Disability" shall mean
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termination of the Executive's employment because the Executive has been absent
from his duties on a full time basis for six (6) months as a result of the
Executive's incapacity due to physical or mental illness and, within 30 days of
Notice of Termination, the Executive shall not have returned to full-time
performance of the Executive's duties.
(i) Excise Tax. The tax imposed by Section 4999 of the
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Code and any applicable state excise tax provision.
(j) Good Reason. Termination for "Good Reason" shall
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mean termination of employment by the Executive based on any of the following
events occurring without the Executive's express written consent:
(1) Bank's assignment to the Executive of duties
inconsistent with the Executive's position, duties, responsibilities and status
with Bank or a change in the Executive's titles or offices as in effect
immediately prior to a Change in Control, or
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any removal of the Executive from or any failure to reelect the Executive to any
such positions, except in connection with the termination of the Executive's
employment for Death, Disability, Retirement or Cause or by the Executive other
than for Good Reason;
(2) After a Change in Control, a reduction by
Bank in the Executive's base salary as in effect on the date hereof or as the
same may be increased from time to time during the term of this Agreement or
Bank's failure to increase, within 12 months of the Executive's last increase in
base salary, the Executive's base salary in an amount which at least equals, on
a percentage basis, the average percentage increase in base salary for all
executive officers of the Company effected in the preceding 12 months;
(3) Any failure by the Company to continue in
effect any material fringe benefit, plan or arrangement in which the Executive
is participating at the time of a Change in Control (or any other plans
providing the Executive with substantially similar benefits) (collectively the
"Fringe Benefit Plans"), or the taking of any action by the Company which would
adversely affect the Executive's participation in or materially reduce the
Executive's benefits under any Fringe Benefit Plan or deprive the Executive of
any material fringe benefit enjoyed by the Executive at the time of a Change in
Control;
(4) Any failure by the Company to continue in
effect any monetary incentive plan or arrangement in which the Executive is
participating at the time of a Change in Control (or any other plans or
arrangements providing the Executive with substantially similar benefits)
(collectively the "Monetary Incentive Plan")) or the taking of any action by the
Company which would adversely affect the Executive's participation in such
Monetary Incentive Plans or reduce the Executive's benefits under the Monetary
Incentive Plans expressed as a percentage of the Executive's base salary, by
more than two percentage points in any fiscal year as compared to the
immediately preceding fiscal year;
(5) A relocation of the Company's principal
executive offices to a location more than twenty (20) miles from the current
location, or the Executive's relocation to any place other than the location at
which the Executive performed executive duties prior to a Change in Control,
except for required travel by the Executive on the Company's business to an
extent substantially consistent with the Executive's business travel obligations
at the time of a Change of Control;
(6) Any material reduction by Bank in the number
of annual paid vacation days to which the Executive is entitled after a Change
in Control;
(7) Any material breach by the Company of any
provision of this Agreement;
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(8) Any failure by Bank or Bancorp to obtain the
assumption of this Agreement by any successor or assign of the Company pursuant
to Section 5 hereof; or
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(9) Any purported termination of the Executive's
employment (other than for Death) which is not effected pursuant to a Notice of
Termination satisfying the requirements of Section l(k) below.
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(k) Notice of Termination. A written notice which (1)
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indicates the specific termination provisions in this Agreement relied upon, (2)
sets forth in reasonable detail the facts and circumstances claimed to provide
the basis for termination of the Executive's employment under the provisions so
indicated (and also provides the resolution specified in Section 1(b) if the
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termination is for Cause), and (3) is delivered to (A) the Executive if the
grounds for termination are Disability (when no legal custodian has been
appointed for the Executive), Retirement or Cause, or (B) the Executive's legal
custodian if the grounds for termination are Disability and a legal custodian
has been appointed for the Executive.
(l) Other Reason. Termination for "Other Reason" shall
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mean termination of the Executive's employment either voluntarily or
involuntarily for any reason other than Death, Disability, Retirement, Cause or
Good Reason.
(m) Payment Date. The Date of Termination.
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(n) Retirement. Termination for "Retirement" shall mean
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the Executive's voluntary retirement (other than for Good Reason).
(o) Special Compensation. The term "Special Compensation"
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shall have the meaning defined in Section 3 below.
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(p) Termination Following Change in Control. If a Change
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in Control occurs while the Executive is still an employee of Bank, Termination
Following Change in Control shall mean any termination of the Executive's
employment with Bank within two years of the Change in Control unless such
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termination is as a result of (i) the Executive's Death; (ii) the Executive's
Disability; (iii) the Executive's Retirement; (iv) the Executive's termination
by Bank for Cause; or (v) the Executive's decision to terminate employment for
other Reason.
2. Term of Agreement.
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This Agreement shall terminate upon the earliest of the
following events:
(a) ten years from the date hereof or, if later, two
years after the date of Change in Control;
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(b) the Date of Termination of the Executive's
employment by Bank (i) prior to a Change in Control or (ii) after a Change in
Control for Death, Disability, Retirement or Cause;
(c) the Date of Termination of the Executive's
employment by the Executive (i) prior to a Change in Control or (ii) after a
Change in Control for Other Reason; or
(d) the payment in full of all of the Company's
obligations for Special compensation as set forth in Section 3 below after
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Termination Following Change in Control.
3. Special Compensation Upon Termination Following Change in Control.
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(a) Special Compensation. Unless this Agreement
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has previously terminated pursuant to Section 2 above, immediately upon a
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Termination Following Change in Control, the Company shall pay to the Executive,
in addition to any compensation to which the Executive may otherwise be
entitled, an amount equal to the lesser of: (1) 2.99 times the Average Annual
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Compensation; or (2) the largest gross Special Compensation amount which, in the
opinion of the Company's independent auditors, will maximize the net payment to
the Executive after consideration of all taxes including the Excise Tax. The
Special Compensation shall be paid in a lump sum, in cash, on the Payment Date.
All of the Special Compensation shall be paid by Bank.
(b) Computation of Excise Tax. For purposes of
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determining whether any of the Special Compensation will be subject to the
Excise Tax and the amount of such Excise Tax:
(1) Any other payments or benefits
received or to be received by the Executive in connection with a Change in
Control (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person or entity whose actions
result in a Change in Control or any person affiliated with the Company or such
person) shall be treated as "parachute payments" within the meaning of Section
280G(b)(2) of the Code and all "excess parachute payment" within the meaning of
Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the
opinion of the Company's independent auditors such other payments or benefits
(in whole or in part) do not constitute parachute payments or such excess
parachute payments (in whole or in part) represent reasonable compensation for
services actually rendered by the Executive within the meaning of Section
280G(b)(4) of the Code (except that, as to amounts that are reasonable
compensation for services rendered before a Change in Control, the base amount
allocated to such amount shall be taken into account to the extent prescribed by
Section 280G of the Code).
(2) The value of any non-cash benefits
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and any present value computations shall be determined by the Company's
independent auditors in accordance with the principles of Section 28OG(d)(3) and
(4) of the Code.
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(3) The determination of the amount of
the Excise Tax pursuant to the foregoing provisions shall be made by the
Company's independent auditors and such determination shall be binding on both
the Company and the Executive. The expense of such determination shall be borne
solely by the Company.
(c) The Company's Withholding Obligation. Bank
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shall withhold the amount of federal and state income tax and, if applicable,
the Excise Tax applicable to the Special Compensation payable to the Executive
pursuant to the provisions of Section 3 hereof, in the amount established by
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Company's independent auditors.
(D) No Other Analogous Benefits Payable.
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Executive agrees that this Agreement sets forth the only arrangement pursuant to
which Executive may receive any severance, similar benefit, or special payment
following a Change in Control while this Agreement is in effect, and Executive
waives any entitlement he may have to any such benefit or any other amount that
would be a "parachute payment" with respect to such a Change in Control.
4. No Obligation to Mitigate Damages.
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(a) Executive shall not be required to mitigate
damages for the amount of any payment provided for under this Agreement by
seeking other employment or otherwise, nor shall the amounts of any payment
provided for under this Agreement be reduced by any compensation earned by the
Executive as a result of employment by another employer after the Date of
Termination or otherwise.
(b) The provisions in this Agreement and any
payment provided for hereunder shall not reduce any amounts otherwise payable,
or in any way diminish the Executive's existing rights, or rights which would
accrue solely as a result of the passage of time under any benefit plan,
incentive plan, securities plan, employment agreement or other contract, plan or
arrangement.
5. Successor to the Company.
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(a) The Company will require any successor or
assign, whether direct or indirect, by purchase, merger, consolidation or
otherwise, of all or substantially all of the business and/or assets of Bank or
Bancorp to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession or assignment had taken place. As used in this Agreement, Company
shall mean the "Company" and any successor to its business and/or assets which
executes and delivers the agreement provided in this Section 5 or which
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otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
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(b) This Agreement shall inure to the benefit of
and be enforceable by the Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, advisees and
legatees. If the Executive should die while any amounts are still payable
hereunder, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisee, legatee
or other designee or, if there is none, to the Executive's estate.
6. Arbitration. Any controversy or claim arising out of or relating
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to this Agreement, or the breach thereof, other than matters pertaining to
injunctive relief, including, without limitation, temporary restraining orders,
preliminary injunctions, and permanent injunctions, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the Judicial
Arbitration and Mediation Service, and judgment upon the award rendered by the
arbitrator(s) shall be and may be entered in any court having jurisdiction
thereof. The parties hereto hereby agree that the arbitrator(s) shall have
jurisdiction to award punitive damages and the parties shall be permitted to
conduct discovery in accordance with the provisions of Part 3, Title 9,
Paragraphs 1280 et seq. of the California Code of Civil Procedure. Such
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arbitration shall take place in Los Angeles, California, unless otherwise agreed
to in writing by the parties.
7. Miscellaneous.
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(a) No Employment Contract. This Agreement shall not constitute
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a contract of employment between Company and Executive.
(b) Notice. All notices, requests, demands, and other
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communications provided for hereunder shall be in writing or by e-mail or
facsimile transmission and shall be deemed to have been duly given (1) on the
date of service if delivered in person or by e-mail or facsimile transmission
(with the e-mail or facsimile confirmation of transmission receipt acting as
confirmation of service when sent and provided that e-mailed or telecopied
notices are also mailed by first class, certified or registered mail, postage
prepaid); or (2) seventy-two (72) hours after mailing by first class, registered
or certified mail, postage prepaid, and properly addressed as follows or at such
other address as the party affected may designate in a written notice to such
other party in compliance with this section.
If to the Company: Imperial Bancorp
Attn: Xxxxxxx Xxxxx
0000 Xxxxx Xx Xxxxxxx Xxxx.
Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
E-mail: xxxxxxx@xxxxxxxxxxxx.xxx
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If to the Executive: Xxxxxx X. Xxxxxxxxx
X.X. Xxx 00000
Xxx Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
E-Mail: xxxxxx.xxxxxxxxx@xxxxxxxxxxxx.xxx
(c) Waiver. No provisions of this Agreement may be
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modified, waived or discharged unless such waiver, modification or discharge is
pursuant to a written agreement signed by the Executive and the Company. No
waiver by either party of any breach of, or compliance with, any condition or
provision of this Agreement to be performed by the other party shall be deemed a
waiver of similar or dissimilar provisions or conditions.
(d) Integration. No agreements or representations, oral or
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otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement
and the terms and conditions of all previous agreements between the parties
concerning the subject matter hereof are hereby superseded.
(e) Governing Law. This Agreement shall be governed and
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construed in accordance with the laws of the State of California.
(f) Validity. The invalidity or unenforceability of any
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provisions of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect.
(g) Counterparts. This Agreement may be executed in one or
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more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(h) Legal Fees and Expenses. In the event that any party
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shall bring any arbitration, action to enforce arbitration or any other legal
action or proceeding (collectively "action") arising out of or in connection
with the performance, breach, interpretation, validity or enforceability of this
Agreement, then the prevailing party in such action (as determined by the court,
arbitrator(s) or other body having jurisdiction) shall be entitled to recover
from the losing party, all reasonable costs and expenses of the action,
including the fees of all arbitrators if the action has been arbitrated,
reasonable attorneys' fees, court costs, costs of investigation and other costs
reasonably related to such action, in such amounts as may be determined in the
discretion of the court, arbitrator(s) or other body having jurisdiction.
(i) Confidentiality. The Executive shall retain in
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confidence any and all confidential information known to the Executive
concerning the Company and its business so long as such information is not
otherwise properly disclosed.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
"EXECUTIVE" "BANCORP"
IMPERIAL BANCORP, a registered
bank holding company
____________________________ By: ___________________________
Xxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxx
Senior Vice President
"BANK"
IMPERIAL BANK, a state
banking corporation
By: ___________________________
Xxxxxx Xxxxxx
President and COO
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