EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into on this 14th day of April, 1997
by and between EAST-WEST BANK, (hereinafter referred to as "Bank"), and XXXXXXX
XXXXXXXX hereinafter referred to as "Executive").
W I T N E S S E T H
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WHEREAS, in order to insure the successful management of its business, Bank
desires to avail itself of the experience, skills, abilities and knowledge of
Executive; and
WHEREAS, both the Bank and the Executive desire to embody the terms and
conditions of Executive's employment in this written agreement which supersedes
all prior agreements, whether written or oral; and
WHEREAS, the employment, the duration thereof, the compensation to be paid
to Executive, and other terms and conditions of employment provided in this
Agreement were duly fixed, stated, approved and authorized for and on behalf of
the Bank by action of its Board of Directors at a meeting held on April 14,
1997, at which meeting a quorum was present and voted, exclusive of Executive.
NOW, THEREFORE, in consideration of the mutual covenants, terms and
conditions, hereinafter set forth, the sufficiency of which is acknowledged, the
parties hereto covenant and agree as follows:
1. TERM
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Subject to the concurrence of all the appropriate state and/or federal
regulatory agencies, Bank agrees to employ Executive as Senior Vice President
and Chief Credit Officer, and Executive hereby accepts employment with Bank
commencing on April 14, 1997 ("Commencement Date") and shall continue for a
period of one(1) year(s) from and after the Commencement Date, unless sooner
terminated or extended pursuant to the provisions of Sections 6 and 7 hereof.
This period of employment shall be referred to herein as "the Term". The Bank
and Executive will commence good faith discussions regarding the renewal or
extension of this Agreement three (3) months prior to expiration of the Term of
this Agreement.
2. DUTIES
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2.1 Generally. At the commencement of this Agreement Executive
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shall serve as Senior Vice President and Chief Credit Officer subject to the
powers by law vested in the Board of Directors of Bank and in Bank's
shareholders. During the term of this Employment Agreement, Executive shall
perform his duties faithfully, diligently and to the best of his ability,
consistent
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with the highest and best standards of the banking industry and in compliance
with all applicable laws and the Bank's Articles of Association and Bylaws. The
Executive may be assigned other titles and job responsibilities at the sole
discretion of the Bank.
2.2 Performance. Executive shall devote substantially his full
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energies, interest, abilities and productive time to the business of the Bank.
Executive shall at all times loyally and conscientiously perform all of these
duties and obligations hereunder and shall at all times strictly adhere to and
obey, and instruct and require all those working under and with him strictly to
adhere and obey, all Bank policies and procedures whether written or oral and
all applicable federal and state laws, statutes, rules and regulations to the
end that the Bank shall at all times be in full compliance with such laws,
statutes, rules and regulations.
3. COMPENSATION
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3.1 Operating Period. During the Term, Executive shall receive an
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annual base salary in the amount of One Hundred Sixty Five Thousand
Dollars($165,000.00) payable in accordance with the normal payroll practices of
the Bank. Annual salary increases shall be according to Bank policy which are
based on merit and the Bank's financial performance for the previous year.
Annual increases are in the sole discretion of the Bank.
3.2 Bonus. In addition to the base salary set forth in Section 3.1
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hereof, during the Term, Executive may participate in the Bank's Management
Incentive Program with the opportunity to earn an annual bonus, based upon
achievement. Bonus potential is established pursuant to the Management Incentive
Program currently at 30% of calendar year base salary earnings prorated for
service less than the full twelve (12) month cycle. The percentage may be
changed at the sole discretion of the Bank with or without notice. Executive
shall not receive any bonus if employment is terminated prior to Executive
completing any full calendar year; there shall be no proration of bonus
earnings. The Bank, in its sole discretion, may award a pro rata bonus at time
of termination.
4. EXECUTIVE BENEFITS
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4.1 Group Medical and Life Insurance Benefits. During the Term the
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Bank shall provide for Executive, at Bank's expense, participation in medical,
dental, accident and health, income continuation and life insurance benefits to
the same extent that such benefits are available to other executives and
eligible employees of the Bank. Dependent coverage may be subject to Executive
contributions. Nothing herein shall imply that the Bank may not reduce,
eliminate or modify existing benefits provisions applicable to all employees.
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4.2 Business Expense. Executive shall be entitled to reimbursement
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by the Bank in accordance with Bank policy and procedures, for any ordinary and
necessary business expenses incurred by Executive in the performance of
Executive's duties and in acting for the Bank during the Term, which type of
expenditures shall be determined by the Board of Directors, provided that:
(a) Each such expenditure is of a nature qualifying it as a
proper deduction on the federal and state income tax returns of the Bank as a
business expense and not as deductible compensation to Executive; and
(b) Executive furnishes to the Bank adequate records and other
documentary evidence required by federal and state statutes and regulations
issued by the appropriate taxing authorities for the substantiation of such
expenditures as deductible business expenses of the Bank and not as deductible
compensation to Executive.
4.3 401(k). Executive may participate in the Bank's 401(k) Plan
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subject to the terms and conditions thereof.
4.4 Vacation. Executive shall be entitled to a vacation, in
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accordance with standard Bank policies based on Corporate title and length of
service, each year during the Term, which vacation presently shall be Four (4)
weeks and such vacation shall accrue at the rate of 1.6666 days for each month
of service under this Agreement. Any vacation time not used may be accrued for
use in future years, subject to a maximum accrual balance not to exceed 1 1/2
times annual accrual entitlement.
4.5 Employee Benefits. Executive shall be entitled to participate
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in all Bank employee benefits available to all employees, subject to meeting
standard eligibility requirements.
5. PROPERTY RIGHTS
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5.1 Trade Secrets. During the Term, Executive may have access to
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and become acquainted with various trade secrets which are owned by the Bank and
which may regularly be used in the operation of the Bank. Executive shall not
disclose any such trade secrets, directly or indirectly, or use them in any way,
during the Term or at any time thereafter, except as required pursuant to the
provisions of this Agreement. All such trade secrets, including, but not by way
of limitation, any and all files, records, documents, specifications, equipment,
customer lists and similar items relating to the business of the Bank, whether
prepared by Executive or otherwise coming into Executive's possession, shall
remain the exclusive property of the Bank and shall not be removed from the
premises of the Bank under any circumstances whatsoever without the prior
written consent of the Board of Directors.
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5.2 Other Property. Under termination of this Agreement, Executive
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shall immediately deliver to the Board of Directors any and all property in
Executive's possession or under Executive's control belonging to the Bank, in
good condition, ordinary wear and tear and damage by any cause beyond
Executive's reasonable control excepted.
6. ADDITIONAL OBLIGATIONS
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6.1 Covenant Not to Compete. During the Term, Executive shall not,
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directly or indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer of director, or in any other
individual or representative capacity, engage or participate in any business or
activity that is in any way in competition in any manner whatsoever with the
business of the Bank.
7. TERMINATION.
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Pursuant to the provisions of all applicable federal and state statutes and
regulations including California Labor Code Section 2922, it is the specific
intent of the Bank and the Executive that the employment shall be "at will", and
any and all other provisions of this Agreement to the contrary notwithstanding,
Executive's employment hereunder may be terminated as follows:
7.1 Without Cause. In the sole and absolute discretion of the Board
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of Directors for any cause whatsoever; provided, however, that if such
termination occurs during the Term, and is for any cause other than those causes
particularly described in Sections 7.2 or 7.3 hereof, Executive shall receive a
severance payment in the amount equal to six (6) months of the then current
annual salary in full and complete satisfaction of any and all rights which
Executive might enjoy hereunder other than the right, if any, to exercise any of
the stock options vested prior to such termination. In the event that
termination takes place without cause in the first six (6) months of employment,
the severance payment provided herein shall be prorated based upon the length of
service.
7.2 Disability. Upon Executive's medical or psychological disability
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whereby Executive is unable to continue his duties hereunder, the employment is
terminated. If such termination occurs as a result of such disability,
Executive shall receive severance payment in an amount equal to six (6) months
of the annual base salary in effect hereunder at the date of such termination in
full and complete satisfaction of any and all rights which Executive might enjoy
hereunder other than the right, if any, to exercise any of the stock options
vested prior to such termination.
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7.3 With Cause. In the event of Executive's death or willful breach
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or habitual neglect of his duties and obligations under this Agreement, his
conviction of a felony or the closing of the Bank under order of regulatory
authorities or any other governmental regulator of competent jurisdiction, in
which event Executive or Executive's estate shall not receive any severance
payment.
7.4. Severance After The Term of Agreement. In the event that this
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Agreement expires and no subsequent Employment Agreement is entered into and
Executive remains in the employment of the Bank whereby employment remains "at
will", if the Bank terminates the Executive without cause, as defined above, the
Executive shall receive six (6) months of salary as severance pay in full and
complete satisfaction of any and all rights that Executive may have. If the Bank
terminates the Executive for cause, no severance pay shall be paid to Executive.
7.5. Severance Settlement. Severance payment shall be made in a lump
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sum, subject to required payroll withholding and IRS Form W-2 reporting.
7.6. General Release of Claims. As a material inducement to the Bank
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to enter into Sections 7.1, 7.2 and 7.4, Executive hereby irrevocably and
unconditionally releases, acquits, and forever discharges the Bank and each of
the Bank's owners, shareholders, predecessors, successors, assigns, agents,
directors, officers, employees, representatives, attorneys, divisions,
subsidiaries, affiliates (and agents, directors, officers, employees,
representatives and attorneys of such divisions, subsidiaries and affiliates),
and all persons acting by, through, under or in concert with any of them
(collectively "Releasees"), or any of them, from any and all complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages, costs,
losses, debts and expenses (including attorney's fees and costs actually
incurred), of any nature whatsoever, including the Age Discrimination in
Employment Act and the Older Workers Benefit Protection Act, known or unknown
("Claim" or "Claims"), which Executive now has, owns, or holds, or claims to
have, own or hold, or which Executive at any time heretofore had, owned, or
held, or claimed to have, own, or hold, or which Executive at any time
hereinafter may have, own, or hold, or claim to have, own, or hold, against each
or any of the Releasees.
7.7. Civil Code Section 1542. Executive expressly waives and
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relinquishes all rights and benefits afforded by Section 1542 of the Civil Code
of the State of California and does so understand and acknowledge the
significance and consequence of such specific waiver of Section 1542. Section
1542 of the Civil Code of the State of California states as follows:
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"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor
at the time of executing the release, which if known by
him must have materially affected his settlement with the
debtor."
7.8 Indemnification. The Bank agrees to indemnify Executive to the
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fullest extent possible pursuant to California law for any and all acts
performed during the course and scope of Executive's employment. At all times
during the employment, the Bank shall maintain directors and officers liability
insurance coverage for Executive.
8. ACKNOWLEDGMENT.
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Executive hereby acknowledges that this Agreement may be subject to and
contingent upon the prior approval of the regulatory authorities and only to the
extent that any such prior approval is required. If such approval is not
obtained, this contract is null and void and unenforceable.
9. MISCELLANEOUS.
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9.1 Notice. Any and all notices and other communications hereunder
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shall be in writing and shall be deemed to have been duly given when delivered
personally or forty-eight (48) hours after being mailed, certified or registered
mail, return receipt requested, postage prepaid, to the addresses set forth
below or to such addresses as may from time to time be designated in writing.
East-West Bank,
Attention: Human Resources Director
000 Xxxxxxxxxx Xxxxx
Xxx Xxxxxx, XX. 00000
9.2 Time. Time is of the essence of this Agreement with respect to
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each and every provision of this Agreement in which time is a factor.
9.3 Entire Agreement. This Agreement sets forth the entire agreement
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between Executive and the Bank pertaining to the subject matter hereof, fully
supersedes any and all prior agreements or understandings between Executive and
any other persons on behalf of the Bank pertaining to the subject matter hereof
and no change in modification of or addition, amendment or supplement to this
Agreement shall be valid unless set forth is writing and signed and dated by
Executive and the Bank.
9.4 Further Assurances. Executive and the Bank, without the
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necessity of any further consideration, agree to execute and deliver such other
documents and take such other action
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as may be necessary to consummate more effectively the purposes and subject
matter of this Agreement.
9.5 Applicable Law. The existence, validity, construction and
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operational effect of this Agreement, any and all of these covenants,
agreements, representations, warranties, terms and conditions and the rights and
obligations of Executive and the Bank hereunder shall be determined in
accordance with the regulations of the applicable regulatory authorities
provided, however, that any provision of this Agreement which may be prohibited
by law or otherwise held invalid shall be ineffective only to the extent of such
prohibition or invalidity and shall not invalidate or otherwise render
ineffective any or all of the remaining provisions of this Agreement.
9.6 Controversy. In the event of any controversy, claim, or
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dispute between Executive and the Bank arising out of or relating to this
Agreement, the prevailing party shall be entitled to recover as costs from the
non-prevailing party reasonable expenses, including, but not by way of
limitation, attorneys' fees and accountant's fees.
9.7 Arbitration. Any dispute regarding any aspect of this Agreement,
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including but not limited to its formation, performance or breach ("arbitrable
dispute"), shall be submitted to arbitration in Los Angeles County, California,
before a single experienced employment arbitrator licensed to practice law in
California and selected in accordance with the Employment Dispute Resolution
Rules of the American Arbitration Association, as the exclusive forum for
resolving such claims or dispute. The arbitrator shall not have authority to
modify or change the Agreement in any respect. The prevailing party in any such
arbitration shall be awarded its costs, expenses, and actual attorneys' fees
incurred in connection with the arbitration. Bank and Executive shall each be
responsible for payment of one-half the amount of the arbitrator's fee(s). The
arbitrator's decision and/or award will be fully enforceable and subject to an
entry of judgment by the Superior Court of the State of California for the
County of Los Angeles. Should any part to this Agreement hereafter institute any
legal action or administrative proceeding against the other with respect to any
Claim waived by this Agreement or pursue any arbitrable dispute by any method
other than arbitration, the responding party shall recover from the initiating
party all damages, costs, expenses, and attorneys' fees incurred as a result of
such action.
9.8 Headings and Gender. The section headings used in this
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Agreement are intended solely for the convenience of reference and shall not in
any way or manner amplify, limit, modify or otherwise be used in the
interpretation of any of the provisions of this Agreement and the masculine,
feminine or neuter gender and the singular or plural number shall be deemed to
include the others whenever the context so indicates or requires.
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9.9 Successors. The covenants, agreements, representations,
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warranties, terms and conditions contained in this Agreement shall be binding
upon and insure to the benefit of the successors and assigns of Executive and
the Bank, provided however, that Executive may not assign any or all of his
rights or duties hereunder except upon the prior written consent of the Board of
Directors in its sole and absolute discretion.
DATED: April 14, 1997
EAST-WEST BANK
By:
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XXXXXXX XX, PRESIDENT & CEO
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XXXXXXX XXXXXXXX, EXECUTIVE
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ANNUAL AMENDMENT TO EMPLOYMENT AGREEMENT
This Annual Amendment to the April 14, 1997 Employment Agreement
(hereinafter "Employment Agreement") is entered into on this 1st day of February
l, 1998 by and between EAST-WEST BANK (hereinafter referred to as "Bank"), and
Xxxxxxx Xxxxxxxx (hereinafter referred to as "Executive").
Pursuant to Section 9.3 of the Employment Agreement between the Bank and
Executive, the following terms and conditions of the Employment agreement are
hereby modified and agreed to, as approved and authorized for and on behalf of
the Bank by action of its Board of Directors at a meeting held on January 22,
1998, at which meeting a quorum was present and voted, exclusive of Executive:
1. TERM
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Bank agrees to employ Executive as Senior Vice President, and Executive
hereby accepts employment with Bank commencing on February 1, 1998
("Commencement Date") and shall continue for a period of one (1) year from and
after the Commencement Date.
2. DUTIES
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2.1 Generally. At the commencement of this agreement executive shall
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serve as Senior Vice President and Chief Credit Officer subject to the powers by
law vested in the Board of Directors of Bank and in Bank's shareholders. During
the term of this Employment Agreement, Executive shall perform his/her duties
faithfully, diligently and to the best of his/her ability, consistent with the
highest and best standards of the banking industry and in compliance with all
applicable laws and the Bank's Articles of Association and Bylaws. The
Executive may be assigned other titles and job responsibilities at the sole
discretion of the Bank.
3. COMPENSATION
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3.1 Operating Period. During the Term, Executive shall receive an
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annual base salary in the amount of One Hundred Seventy Three Thousand Four
Hundred Fifteen Dollars ($173,415.00) payable in accordance with the normal
payroll practices of the Bank. Annual salary increases shall be according to
Bank policy which are based on merit and the bank's financial performance for
the previous year. Annual increases are in the sole discretion of the Bank.
4. EXECUTIVE BENEFITS
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4.2 Business Expense Executive shall be entitled to reimbursement
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by the Bank in accordance with Bank policy and procedure, for any ordinary and
necessary business expenses incurred by Executive in the performance of
Executive's duties and in acting for the Bank during the Term, which type of
expenditures shall be determined by the Board of Directors, provided that
executive furnishes to the Bank adequate records and other documentary evidence
for such expenditures.
4.6 LTD Long Term Disability. Executive will be required to join the
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Executive Long Term Disability Plan. The Executive Long Term Disability Plan is
a contributory plan. All premiums will automatically by paid out of payroll
deductions. Participation is mandatory.
Except as expressly agreed to herein, the Employment Agreement between the
parties shall remain in force and effect.
Dated:___________________________, 0000
XXXX XXXX XXXX
By:_____________________________________
________________________________________
Executive
