Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of
September 13, 2001, by and between Commercial Capital Bank, a federal savings
bank, with its headquarters office located in the City of Irvine, Orange County,
California (the "Bank"), and XXXXXXX X. XXXXXX, a California resident (the
"Employee").
A. Per the letter dated September 10, 2001, the Office of Thrift
Supervision ("OTS") has no objection to Bank entering into this Agreement, and
therefore, Employee will serve as the Chairman and Chief Executive Officer of
the Bank.
B. The parties intend by this Agreement to comply with the
requirements of Section 563.39 of the Regulations of the OTS, 12 C.F.R. Section
563.39.
On the basis of the foregoing facts and in consideration of the mutual
covenants and agreements contained herein, the parties agree as follows:
1. Term.
(a) Subject to the provisions below, the Bank agrees to employ
Employee, and Employee agrees to be employed by the Bank, subject to the terms
and conditions of this Agreement, for a term of three (3) years ("the Term")
commencing on the date of this Agreement (the "anniversary date") unless
employment is earlier terminated pursuant to the termination provisions of this
Agreement ("the Employment Period").
(b) Subject to the notice provisions set forth in this
paragraph, the term of this Agreement may be renewed or extended for one (1)
additional year after review and approval by the Board of Directors on the
anniversary date of this Agreement during each calendar year. The term shall not
be extended if either party gives written notice to the other, on or before the
date which is 90 days prior to the anniversary date, that the Agreement shall
not be renewed on the next anniversary date. In the event either party gives the
other written notice as provided in this paragraph, the term of this Agreement
shall thereafter terminate on the next following anniversary date.
2. Duties and Authority.
(a) During the Employment Period, Employee shall devote all
necessary time, ability and attention to the business and affairs of the Bank
(see Exhibit A), notwithstanding that, Employee shall not directly render
service of a business, commercial or professional nature to any other person or
organization other than Commercial Capital Bancorp, the holding company for the
Bank ("Holding Company"), and Financial Institutional Partners Mortgage
Corporation, a subsidiary of the Holding Company, without the consent of the
Board of Directors of the Bank (the "Board of Directors"). However, nothing in
this paragraph prohibits Employee from, or requires the Board of Directors to
approve or consent to Employee serving as an advisor or Board member of a
charitable or nonprofit organization or serving as an
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advisor or director of any corporation which does not compete with the business
of the Bank, so long as such service does not materially interfere with the
performance of Employment duties. Employee agrees that during the Employment
Period he will use his best efforts, skill and abilities to promote the Bank's
interests and to serve as the Chairman and Chief Executive Officer of the Bank.
Employee shall perform such customary, appropriate and reasonable executive
duties as are normally assigned to the Chairman and Chief Executive Officer at
other federal savings banks, including such duties as are delegated to him from
time to time by the Board of Directors. Employee shall report directly to the
Bank's Board of Directors. The Bank shall also cause Employee to be nominated,
and management proxies will be voted to elect Employee as a director of both the
Bank and the Holding Company during the entire Employment Period.
3. Bank's Authority.
Employee agrees to observe and comply with the Bank's rules and
regulations as adopted by the Board of Directors regarding performance of his
duties and to carry out and to perform orders, directions and policies stated by
the Board of Directors to him periodically, either orally or in writing.
4. Compensation.
(a) The Bank directly, or through one or more of its affiliates,
agrees to pay to Employee during each year of this Agreement an annual base
salary of $450,000, beginning on the effective date of this Agreement and
payable in accordance with the Bank's standard payment policy and subject to
such withholding as required by law or policy on the fifteenth and last day of
each month during the term of this Agreement. The base salary shall be reviewed
annually by the Board of Directors, on or before January 31 of each year for
that year, and may be changed by mutual agreement of the parties. Employee
acknowledges and agrees that all base compensation paid by the Bank to Employee
under this Agreement shall be applied toward, and credited against, any base
compensation payable to Employee by the Holding Company under any employment
agreement between Employee and the Holding Company.
(b) In addition to all other compensation referred to above, the
Bank may pay Employee a bonus or bonuses and may grant to Employee stock
options, in either case in such amount as and in such a manner as the Board of
Directors, in its discretion, determines is appropriate. Such compensation shall
be based upon guidelines established by, and reviewed by, the Board of Directors
that takes into consideration all measures of the Bank's performance.
(c) The Bank directly, or through one or more of its affiliates,
shall provide a car allowance of $1,000 per month during the Employment Period.
(d) During the Employment Period, Employee shall be eligible to
participate in any retirement, pension or profit-sharing plan, including any
non-qualified, deferred compensation or salary continuation plan, or similar
employee benefit plan or retirement or bonus program of the Bank, to the extent
that he is eligible under the provisions of the plan and commensurate with his
position in relationship to other participants and pursuant to the terms of the
Bank's plans or programs.
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(e) Employee shall accrue vacation and sick time ("paid time
off" or "PTO") at the rate of 7.67 hours per semi-monthly pay period (for a
total of 184.00 hours or 23 days per year). Notwithstanding any terms of the
Bank's personnel policy to the contrary, any unused PTO shall carry forward to
the next year. Once Employee has accrued, or is deemed to have accrued, 276
hours of PTO (approximately 34.5 days per year) ("the cap"), he shall cease to
accrue further PTO until such time as accrued PTO falls below the cap.
(f) The Bank agrees to provide medical, dental and other
insurance, including key man life and disability, for Employee on the same terms
as provided for all executive officers of the Bank.
5. Reimbursement of Expenses.
The services required by the Bank will require Employee to incur
business, entertainment and community relations' expenses and the Bank hereby
agrees to provide credit cards and charge accounts for Employee's use for such
expenses. The Bank agrees to reimburse Employee for all out-of-pocket expenses
that are business related, upon submission of appropriate documentation and
approval by the Board of Directors or a committee thereof. Such expenses shall
include membership fees and dues to organizations approved by the Board. Each
expense, to be reimbursed, must be of a nature qualifying it as a proper
deduction on the income tax returns of the Bank as a business expense and not as
deductible compensation to Employee. The records and other documentary evidence
submitted by Employee to the Bank with each request for reimbursement of such
expenses shall be in the form required by applicable statutes and regulations
issued by appropriate taxing authorities for the substantiation of such
expenditures as deductible business expenses of the Bank and not as deductible
compensation to Employee.
6. Confidential Information.
Employee agrees that he shall not, without the prior written
permission of the Bank in each case, publish, disclose or make available to any
other person, firm or corporation, either during or after the termination of
this Agreement, any confidential information which Employee may obtain during
the Employment Period, or which Employee may create prior to the end of the
Employment Period relating to the business of the Bank, or to the business of
any customer or supplier of any of them; provided, however, Employee may use
such information during the Employment Period for the benefit of the Bank.
Employee agrees to execute any and all such additional agreements and
instruments that the Bank may deem reasonably necessary in order to protect the
confidentiality of such confidential information or otherwise to effectuate the
purpose and intent of this Section 6. Prior to or at the termination of this
Agreement, Employee shall return all documents, files, notes, writings and other
tangible evidence of such confidential information to the Bank. Notwithstanding
the above, the OTS and other federal agencies will be exempt from any
prohibition regarding disclosure of confidential information. This Section 6
shall survive the expiration or termination of this Agreement.
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7. Covenant Not to Solicit Customers or Fellow Employees.
Employee agrees that for a period of eighteen (18) months
following the termination of employment with the Bank, he will not solicit,
directly or indirectly divert or attempt to divert for himself or for any third
party, the banking business of any customer with whom the Bank had done business
during the preceding one year period. Employee recognizes and acknowledges that
any customer list and financial information concerning any of the Bank's
customers, as it may exist from time to time, is a valuable, special and unique
asset of the Bank's business. Employee further agrees not to solicit, directly
or indirectly divert or attempt to divert for himself or for any third party,
the services of any officer or employee of the Bank during such 18-month period.
Employee agrees to execute any and all such additional agreements and
instruments that the Bank may deem reasonably necessary in order to effectuate
the purpose and intent of this Section 7. This Section 7 shall survive the
expiration or termination of this Agreement.
8. Remedy.
Employee understands that, because of the unique character of the
services to be rendered by Employee hereunder, the Bank would not have any
adequate remedy at law for the breach or threatened breach by Employee of any
one or more of the covenants set forth in this Agreement and therefore expressly
agrees that the Bank in addition to any other rights or remedies which may be
available to it, shall be entitled to injunctive and other equitable relief to
prevent or remedy a breach of this Agreement by Employee.
9. Termination of Employee Without Cause.
(a) Upon the occurrence of an Event of Termination (as herein
defined) during Employee's term of employment under this Agreement, the
provisions of this Section shall apply.
(b) As used in this Agreement, an "Event of Termination" shall
mean and include any one or more of the following: (i) the termination by the
Bank or the Holding Company of Employee's full-time employment hereunder for any
reason other than a termination governed by Section 12 below, or termination for
Cause, as defined in Section 10(b) below; or (ii) Employee's termination with
good reason from the Bank's employ in accordance with Section 9 (c) below upon
any (A) failure to elect or reelect or to appoint or reappoint Employee as Chief
Executive Officer, unless consented to by Employee, (B) a material change in
Employee's function, duties, or responsibilities with the Bank, which change
would cause Employee's position to become one of substantially lesser
responsibility, importance, or scope from the position and attributes thereof
described in Section 2 above, unless consented to by Employee, (C) a relocation
of Employee's principal place of employment by more than 30 driving miles from
its location at the effective date of this Agreement, unless consented to by the
Employee, (D) a material reduction in the benefits and perquisites to Employee
from those being provided as of the effective date of this Agreement, unless
consented to by Employee, (E) a liquidation or dissolution of the Bank or
Holding Company, or (F) breach of this Agreement by the Bank.
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Notwithstanding the above, the event of a conservatorship or receivership is
specifically excluded from an Event of Termination.
(c) Upon the occurrence of any event of a type described in
clauses (ii)(A), (B), (C), (D), (E) or (F), of Section 9(b), Employee shall have
the right to terminate with good reason his employment under this Agreement by
delivering written notice to the Bank not less than sixty (60) days following
the occurrence of such event, which termination with good reason shall be
effective only if such event shall not be cured within thirty (30) days after
the Bank's receipt of such notice. The date of any Event of Termination shall be
referred to herein as the "Date of Termination".
(d) Upon the occurrence of an Event of Termination by the Bank,
the Bank shall pay to Employee an amount equal to his base salary for the
remaining portion of the Term (such payment, the Severance Payment), as
severance pay in lieu of and in substitution for any other claims for salary and
continued benefits hereunder (based on Employee's base salary and benefits
prevailing at the time of termination). At the election of the Employee, the
Severance Payment shall be made to Employee: (a) in a lump sum on the Date of
Termination, or (b) on a semi-monthly basis in approximately equal installments
over a period of thirty-six (36) months following the Date of Termination, or
(c) on an annual basis in approximately equal installments over a period of
thirty-six (36) months following the Date of Termination. Payment of the
Severance Payment shall be in addition to all other sums owed to Employee under
applicable law for all periods prior to the Date of Termination, including,
without limitation, sums owed in respect of accrued PTO, accrued bonus, if any,
and reimbursable expenses. Notwithstanding anything in this Agreement to the
contrary no bonus shall be deemed to have been accrued unless and until any such
bonus has been duly authorized by the Bank's Board of Directors or a duly
authorized committee thereof.
(e) With respect to any stock options issued to the Employee
that were outstanding on the Date of Termination, any options which were not
fully vested and exercisable on the Date of Termination shall automatically
become exercisable upon the Date of Termination, and shall remain exercisable in
full for a period of ninety (90) days following the Communication Date.
(f) Upon the occurrence of an Event of Termination, the Bank
will cause to be continued for the Employee and his previously covered
dependents life, medical, dental and disability coverage that the Employee
agrees is substantially equivalent to the coverage maintained by the Bank or the
Holding Company for Employee and his dependents prior to the Date of Termination
at no cost to the Employee, except to the extent such coverage may be changed in
its application to all Bank or Holding Company employees. Such coverage shall
cease upon the expiration of the remaining term of this Agreement.
10. Termination of Employee for Cause.
(a) The Bank's board of directors may terminate the Employee's
employment at any time, but any termination by the Bank's board of directors
other than termination for cause, shall not prejudice the Employee's right to
compensation or other benefits
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under the contract. The Employee shall have no right to receive compensation or
other benefits for any period after termination for cause. Termination for cause
shall include termination because of the Employee's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, or regulation (other than traffic violations or similar offenses) or
final cease-and-desist order, or material breach of any provision of the
contract.
(b) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
section 8 (e) (3) or (g) (1) of the Federal Deposit Insurance Act (12 U.S.C.
1818 (e) (3) and (g) (1)) the Bank's obligations under this Agreement shall be
suspended as of the date of service unless stayed by appropriate proceedings. If
the charges in the notice are dismissed, the Bank may in its discretion (i) pay
Employee all or part of the compensation withheld while its contract obligations
were suspended, and (ii) reinstate (in whole or in part) any of its obligations
which were suspended.
(c) If Employee is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
section 8 (e) (4) or (g) (1) of the Federal Deposit Insurance Act (12 U.S.C.
1818 (e) (4) or (g) (1)), all obligations of the Bank under this Agreement shall
terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(d) If the Bank is in default (as defined in section 3 (x) (1)
of the Federal Deposit Insurance Act), all obligations under this Agreement
shall terminate as of the date of default but this paragraph (g) shall not
affect any vested rights of the contracting parties.
(e) All obligations under this Agreement shall be terminated,
except to the extent determined that continuation of the contract is necessary
of the continued operation of the Bank:
(i) By the director of the OTS (the "Director") or his or
her designee, at the time the Federal Deposit Insurance Corporation or
Resolution Trust Corporation enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in 13 (C) of the Federal
Deposit Insurance Act; or
(ii) By the Director or his or her designee, at the time the
Director or his or her designee approves a supervisory merger to resolve
problems related to operation of the Bank or when the Bank is determined by the
Director to be in an unsafe or unsound condition.
Any rights of the parties that have already vested, however,
shall not be affected by such action.
11. Termination Upon Employee's Death; Effect of Termination on Other
Plans.
Notwithstanding anything herein contained, if Employee shall die, this
Agreement shall terminate one (1) year from the date of Employee's death,
whereupon Employee's estate shall be entitled to receive his salary, accrued
PTO, and any bonus earned up through the date of termination. Such termination
shall not affect any rights which Employee may have at the time
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of his death pursuant to any of the Bank's plans or arrangements for insurance,
PTO or stock options, or for any other death benefit, bonus, or retirement
benefit, which accrued rights thereafter shall be enjoyed by Employee's estate
and continue to be governed by the provision of such plans and arrangements to
the extent they are not inconsistent with the terms of this Agreement. The Bank
will cause to be continued for the Employee's previously covered dependants
life, medical and dental coverage that is substantially equivalent to the
coverage maintained by the Bank or the Holding Company for Employee's dependants
prior to the Employee's death at no cost to the Employee. Such Coverage shall
cease upon the expiration of the remaining term of this Agreement.
12. Change in Control.
(a) For purposes of this Agreement, a "Change in Control" of the
Bank or Holding Company shall mean an event of a nature that: (i) would be
required to be reported in response to Item I(a) of the current report on Form
8-K, as in effect on the date hereof, pursuant to Sections 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); or (ii)
results in a Change in Control of the Bank or the Holding Company within the
meaning of the Home Owners' Loan Act of 1933, as amended, the Federal Deposit
Insurance Act and the Rules and Regulations promulgated by the OTS (or its
predecessor agency), as in effect on the date hereof (provided, that in applying
the definition of change in control as set forth under the rules and regulations
of the OTS, the Board of Directors shall substitute its judgment for that of the
OTS); or (iii) without limitation such a Change in Control shall be deemed to
have occurred at such time as (A) any "person" (as the term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of voting
securities of the Bank or the Holding Company representing 20% or more of the
Bank's or the Holding Company's outstanding voting securities or right to
acquire such securities except for any voting securities of the Bank purchased
by the Holding Company and any voting securities purchased by any employee
benefit plan of the Bank or the Holding Company, or (B) individuals who
constitute the Board of Directors on the date hereof (the "Incumbent Board")
cease for any reason to constitute at least a majority thereof, provided that
any person becoming a director subsequent to the date hereof whose election was
approved by a vote of at least three-quarters of the directors comprising the
Incumbent Board, or whose nomination for election by the Holding Company's
stockholders was approved by a Nominating Committee solely comprised of members
who are Incumbent Board members, shall be, for purposes of this clause (B),
considered as though he were a member of the Incumbent Board, (C) a plan of
reorganization, merger, consolidation, sale of all or substantially all the
assets of the Bank or the Holding Company or similar transaction occurs or is
effectuated in which the Bank or Holding Company is not the resulting entity;
provided, however, that such an event listed above will be deemed to have
occurred or to have been effectuated upon the receipt of all required federal
regulatory approvals not including the lapse of any statutory waiting periods,
or (D) a proxy statement shall be distributed soliciting proxies from
stockholders of the Holding Company, by someone other than the current
management of the Holding Company, seeking stockholder approval of a plan of
reorganization, merger or consolidation of the Holding Company or Bank with one
or more corporations as a result of which the outstanding shares of the class of
securities then subject to such plan or transaction are exchanged for or
converted into cash or property or securities not issued by the Bank or the
Holding Company shall be
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distributed; or (E) a tender offer is made and accepted for 20% or more of the
voting securities of the Bank or Holding Company then outstanding.
The change in composition of the Board of Directors occasioned by a
conservatorship or receivership, or by directive of the OTS (or its successor),
should not be construed as a Change in Control for the purposes of triggering
the obligations to render compensation under this Agreement.
(b) If a Change in Control has occurred pursuant to Section
12(a) above or the Board of Directors has determined that a Change in Control
has occurred, Employee shall be entitled to the benefits provided in paragraphs
(c), and (d) of this Section 12 upon his subsequent termination of employment at
any time during the term of this Agreement due to: (1) Employee's dismissal or
(2) Employee's voluntary resignation unless such termination is because of his
death or Termination for Cause.
(c) Upon Employee's entitlement to benefits pursuant to Section
12(b), the Bank shall pay Employee, or in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be, as severance
pay or liquidated damages, or both a sum equal to the greater of: (1) the
payments due for the remaining term of the Agreement; or (2) three (3) times
Employee's highest annual compensation for the last five (5) years (such
payment, the Severance Payment). Such annual compensation shall include base
salary, commissions, bonuses, contributions or accruals on behalf of Employee to
any pension and profit sharing plans, including any non-qualified, deferred
compensation or salary continuation plans, any benefits to be paid or received
under any stock-based benefit plan, severance payments, directors or committee
fees and value of fringe benefits paid or to be paid to the Employee during such
years. At the election of the Employee, the Severance Payment shall be made to
Employee: (a) in a lump sum on the Date of Termination, or (b) on a semi-monthly
basis in approximately equal installments over a period of thirty-six (36)
months following the Date of Termination or (c) on an annual basis in
approximately equal installments over a period of thirty-six (36) months
following the Date of Termination. Payment of the Severance Payment shall be in
addition to all other sums owed to Employee under applicable law for all periods
prior to the Date of Termination, including, without limitation, sums owed in
respect of accrued PTO, accrued bonus, if any, and reimbursable expenses.
Notwithstanding anything in this Agreement to the contrary no bonus shall be
deemed to have been accrued unless and until any such bonus has been duly
authorized by the Bank's Board of Directors or a duly authorized committee
thereof. Such payments shall not be reduced in the event Employee obtains other
employment following termination of employment.
(d) Upon the Employee's entitlement to benefits pursuant to
Section 12(b), the Bank will cause to be continued for the Employee and his
previously covered dependents life, medical, dental and disability coverage that
the Employee agrees is substantially equivalent to the coverage maintained by
the Bank for Employee and his dependents prior to his termination at no cost to
the Employee. Such coverage and payments shall cease upon the expiration of
thirty-six (36) months following the Date of Termination.
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13. Parachute Payment Provision.
(a) Benefit Limit. The following limitation shall apply in the
event, but only in the event, that any payment received or to be received by
Employee pursuant to this Agreement ("Payment") would constitute a parachute
payment within the meaning of Section 280G of the Internal Revenue Code of 1986,
as amended (the "Code"):
The aggregate present value of those Payments shall be limited in
amount to the greater of the following dollar amounts (the "Benefit Limit"):
(i) 2.99 times Executive's Average Compensation, or
(ii) Payments under this Agreement after taking into account any
excise tax imposed under Code Section 4999 on those
Payments.
The present value of the Payments will be measured as of the
Change in Control and determined in accordance with the provisions of Code
Section 280G(d)(4).
As used in this Section 13(a), the term "Average Compensation"
means the average of Employee's W-2 wages from the Bank for the five (5)
calendar years (or such fewer number of calendar years of employment with the
Bank) completed immediately prior to the calendar year in which the Change of
Control is effected. Any W-2 wages for a partial year of employment will be
annualized, in accordance with the frequency which such wages are paid during
such partial year before inclusion in Average Compensation.
(b) Resolution Procedure. For purposes of the foregoing Benefit
Limit, in the event there is any disagreement between Employee and the Bank as
to whether one or more payments to which Employee becomes entitled under this
Agreement constitute parachute payments under Code Section 280G or as to the
determination of the present value thereof, such dispute will be resolved as
follows:
(i) In the event temporary, proposed or final Treasury
Regulations in effect at the time under Code Section 280G (or applicable
judicial decisions) specifically address the status of any such payment or
the method of valuation therefor, the characterization afforded to such
payment by the Regulations (or such decisions) will, together with the
applicable valuation methodology, be controlling.
(ii) In the event Treasury Regulations (or applicable
judicial decisions) do not address the status of any payment in dispute,
the matter will be submitted for resolution to a nationally-recognized
independent accounting firm mutually acceptable to Employee and the Bank
("Independent Accountant"). The resolution reached by the Independent
Accountant will be final and controlling; provided, however, that if in the
judgment of the Independent Accountant the status of the payment in dispute
can be resolved through the obtainment of a private letter ruling from the
Internal Revenue Service, a formal and proper request for such ruling will
be prepared and submitted, and the determination made by the Internal
Revenue Service in the issued ruling will be controlling. All expenses
incurred in connection with the retention of the
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Independent Accountant and (if applicable) the preparation and submission
of the ruling request shall be borne by the Bank.
(c) Reduction of Benefits. To the extent the aggregate present
value of Employee's Payments pursuant to Section 12 would exceed the Benefit
Limit, the salary payments will first be reduced, and then accelerated vesting
of Employee's options would be reduced, to the extent necessary to assure that
such Benefit Limit is not exceeded.
(d) Notwithstanding the foregoing, any payments made to Employee
pursuant to this Agreement, or otherwise, are subject to and conditioned upon
their compliance with 12 U.S.C.ss.1828(k) and any regulations promulgated
thereunder.
14. Modification.
This Agreement sets forth the entire understanding of the parties
with respect to the subject matter hereof, supersedes all existing agreements
between them concerning such subject matter, and may be modified only by written
instrument duly executed by each party.
15. Notices.
Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested or delivered against receipt to the party at the
address set forth following the signature line of this Agreement or to such
other address as the party shall have furnished in writing. Notice to the estate
of Employee shall be sufficient if addressed to Employee as provided in this
Section 15. Any notice or other communication given by certified mail shall be
deemed given at the time of certification thereof, except for a notice changing
a party's address which shall be deemed given at the time of receipt thereof.
16. Dispute Resolution Procedures.
Except with respect to any claim for equitable relief (the
pursuit of which shall not be subject to the provisions of this Section 16), any
controversy or claim arising out of this Agreement or the Employee's employment
with the Bank or the termination thereof, including, but not limited to, any
claim of discrimination under state or federal law, shall be settled by binding
arbitration in accordance with the Rules of the American Arbitration
Association; and judgment upon the award rendered in such arbitration shall be
final and may be entered in any court having jurisdiction thereof. Notice of the
demand for arbitration shall be filed in writing with the other party to this
Agreement and with the American Arbitration Association. In no event shall the
demand for arbitration be made after the date when the 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. This agreement to
arbitrate shall be specifically enforceable under the prevailing arbitration
law. Any party desiring to initiate arbitration procedures hereunder shall serve
written notice on the other party. The parties agree that an arbitrator shall be
selected pursuant to these provisions within thirty (30) days of the service of
the notice of arbitration. In the event of any arbitration pursuant to these
provisions, the parties shall retain the rights of all discovery provided
pursuant to the California
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Code of Civil Procedure and the Rules thereunder. Any arbitration initiated
pursuant to these provisions shall be on an expedited basis and the dispute
shall be heard within one hundred twenty (120) days following the serving of the
notice of arbitration and a written decision shall be rendered within sixty (60)
days thereafter. All rights, causes of action, remedies and defenses available
under California law and equity are available to the parties hereto and shall be
applicable as though in a court of law. The parties shall share equally all
costs of any such arbitration.
17. Miscellaneous.
(a) This Agreement is drawn to be effective in the State of
California and shall be construed in accordance with California laws, except to
the extent superseded by federal law. The parties specifically acknowledge that
while the restrictions contained in Section 131 of the Federal Deposit Insurance
Corporation Improvement Act of 1991, relating to the payment of bonuses and
increases for senior executive officers of institutions which are deemed
"undercapitalized", do not currently apply to the Bank, such provisions may
affect the terms of this Agreement if during its term the Bank should be deemed
undercapitalized by either the OTS or the FDIC. No amendment or variation of the
terms of this Agreement shall be valid unless made in writing and signed by
Employee and a duly authorized representative of the Bank.
(b) Any waiver by either party of a breach of any provision of
this Agreement shall not operate as to be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
(c) Employee's rights and obligations under this Agreement shall
not be transferable by assignment or otherwise, such rights shall not be subject
to commutation, encumbrance or the claims of Employee's creditors, and any
attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon and inure to the benefit of the Bank and its
successors and those who are its assigns under Section 12.
(d) This Agreement does not create, and shall not be construed
as creating, any rights enforceable by a person not a party to this Agreement
(except as provided in subsection (c) above).
(e) The headings in this Agreement are solely for the
convenience of reference and shall be given no effect on the construction or
interpretation of this Agreement.
(f) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. It shall be governed by
and construed in accordance with the laws of the State of California, without
giving effect to conflict of laws, except where federal law governs.
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18. Resignation as Director Upon Termination.
Upon termination of this Agreement, Employee, if he is then
serving as a director of the Bank, agrees to immediately resign his position as
a director as well as all other positions he may hold until the Bank or any
related or affiliated entity by giving written notice of his resignation to the
Vice Chairman of the Board of Directors of the Bank.
IN WITNESS WHEREOF, the Bank and Employee have executed this
Agreement to be effective as of the day and year written above.
BANK: Commercial Capital Bank
federal savings bank
By: /s/ Xxxxx X. XxXxxxx
------------------------------------------------
Xxxxx X. XxXxxxx
Vice Chairman, President and Chief Operating Officer
Address:
--------------------------------------------
--------------------------------------------
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Xxxxxxx X. Xxxxxx
Address:
--------------------------------------------
--------------------------------------------
12
Employment Agreement
Addendum
Effective as of January 1, 2002, compensation for Xxxxxxx X. Xxxxxx at
Commercial Capital Bank will be $550,000.
/s/ Xxxxx X. XxXxxxx
-------------------------
Xxxxx X. XxXxxxx
Vice Chairman & President
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT, dated as of August __,
2002 (the "Amendment"), by and between Commercial Capital Bank, a federal
savings bank, with its headquarters office located in the City of Irvine, Orange
County, California (the "Bank"), and XXXXXXX X. XXXXXX, a California resident
(the "Employee" and together with the Bank, the "Parties").
WHEREAS, the Parties entered into an Employment Agreement, dated as of
September 13, 2001 ( the "Agreement");
WHEREAS, the Parties hereto wish to modify and amend the Agreement as set
forth herein;
NOW, THEREFORE, in consideration of the premises, covenants and
agreements hereinafter set forth, the Parties hereto agree as follows:
1. Amendment to Section 9(d) of the Agreement.
Section 9(d) of the Agreement is hereby amended and restated in its
entirety to read as follows:
Upon the occurrence of an Event of Termination by the Bank, the Bank
shall pay Employee, or in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both a sum equal to the greater of: (1) the payments due for the
remaining term of the Agreement; or (2) three (3) times Employee's highest
annual compensation for the last five (5) years (such payment, the Severance
Payment). Such annual compensation shall include base salary, commissions,
bonuses, contributions or accruals on behalf of Employee to any pension and
profit sharing plans, including any non-qualified, deferred compensation or
salary continuation plans, any benefits to be paid or received under any
stock-based benefit plan, severance payments, directors or committee fees and
value of fringe benefits paid or to be paid to the Employee during such years.
At the election of the Employee, the Severance Payment shall be made to
Employee: (a) in a lump sum on the Date of Termination, or (b) on a semi-monthly
basis in approximately equal installments over a period of thirty-six (36)
months following the Date of Termination or (c) on an annual basis in
approximately equal installments over a period of thirty-six (36) months
following the Date of Termination. Payment of the Severance Payment shall be in
addition to all other sums owed to Employee under applicable law for all periods
prior to the Date of Termination, including, without limitation, sums owed in
respect of accrued PTO, accrued bonus, if any, and reimbursable expenses.
Notwithstanding anything in this Agreement to the contrary no bonus shall be
deemed to have been accrued unless and until any such bonus has been duly
authorized by the Bank's Board of Directors or a duly authorized committee
thereof. Such payments shall not be reduced in the event Employee obtains other
employment following termination of employment.
2. Miscellaneous.
(a) The Agreement is incorporated herein by reference.
(b) Except as otherwise set forth herein, the Agreement, as amended
hereby, shall remain in full force and effect and the Parties shall have all the
rights and remedies provided thereunder with the same force and effect as if the
Agreement was restated herein in its entirety.
(c) The provisions hereof shall be binding upon and inure to the
benefit of the Parties and their respective executors, heirs, personal
representatives, successors and assigns.
(d) This Amendment may be executed and delivered in several
counterparts with the intention that all such counterparts, when taken together,
constitute one and the same instrument.
* * *
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
BANK: Commercial Capital Bank, a federal savings bank
By: /s/ Xxxxx X. XxXxxxx
--------------------
Xxxxx X. XxXxxxx
Vice Chairman, President and Chief
Operating Officer
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
Address:_______________________________
_______________________________
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