EXHIBIT 10.IIA2
EXHIBIT
ITEM 10(II)A(2)
Employment Contract of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇., Dated May 14, 1997
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of the 14 day of
May, 1997, between MONTEREY COUNTY BANK, a California corporation ("Bank"),
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇. ("Executive").
W I T N E S S E T H
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WHEREAS, Executive has served as the Chairman and Chief Executive Officer
of Bank since 1987 with distinction, leading the Bank to a "Premier
Performing" rating in 1992, reducing the level of non-performing loans from
one far in excess of state averages to one which is far below state averages,
and becoming the only Chief Executive Officer in the Bank's history whose
tenure generated net profits; and
WHEREAS, the latest Employment Agreement between Executive and Bank
expired as of December 31, 1996; and
WHEREAS, Bank desires that Executive continue to be employed as Bank's
Chairman, President and Chief Executive Officer, and to document the terms of
such employment; and
WHEREAS, Executive is willing to be employed as Bank's Chairman,
President and Chief Executive Officer under the terms and conditions herein
stated.
WHEREAS, Executive is willing to be employed as Bank's Chairman,
President and Chief Executive Officer under the terms and conditions herein
stated.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, and other good and valuable consideration, it is
hereby agreed by and between the parties hereto as follows:
A. TERM OF EMPLOYMENT
1. TERM. bank hereby agrees to continue to employ Executive, and
Executive hereby accepts employment with Bank, for the period of three (3)
years, commencing on January 1, 1997, subject however, to prior termination
of this Agreement as hereinafter provided (the "Term"). When used herein,
"Term" shall refer to the entire period of employment of Executive by Bank
hereunder commencing January 1, 1997 (the "Effective Date"), whether for the
period provided above, or whether terminated earlier as hereinafter provided.
B. DUTIES OF EXECUTIVE
1. DUTIES. Executive shall perform the duties of Chairman of the
Board and Chief Executive Officer of Bank, subject to the powers by law
vested in the Board of Directors of Bank and in Bank's shareholders, and
shall serve as a Director of Bank if elected by the shareholders. During the
Term, Executive shall perform exclusively the services herein, contemplated
to be performed by Executive with due care, faithfully, diligently, to the
best of Executive's ability and in compliance with all applicable laws,
policies adopted by the Board of Directors, and Bank's Articles of
Incorporation and Bylaws.
2. EXCLUSIVELY. Executive shall devote Executive's entire productive
time, ability and attention to the business of Bank during the term.
Executive shall not directly or indirectly render any services of a business,
commercial or professional nature to any other person, firm or corporation,
whether for compensation or otherwise, without prior consent evidenced by a
resolution duly adopted by the Board of Directors of the Bank, or the
Executive Committee thereof. Notwithstanding the foregoing, Executive may
make investments of a passive nature in any business or venture, provided
however, that such business or venture is neither in competition or conflict,
directly or indirectly, in any manner with Bank.
3. UNIQUENESS OF EXECUTIVE'S SERVICES. The Executive hereby
represents that the services to be performed by him under the terms of this
contract are of a special, unique, unusual, extraordinary, and intellectual
character, which give them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages in an action at law. The
Executive therefore expressly agrees that the Bank, in addition to other
rights or remedies which the Bank may possess, shall be entitled to
injunctive and other equitable relief to prevent a breach of this contract by
the Executive.
4. PHYSICAL EXAMINATION. Executive shall take an annual physical
examination during each year during the Term of this contract. Said physical
examination(s) shall be conducted at the expense of the Bank.
C. COMPENSATION
1. SALARY. For Executive's services hereunder, Bank shall pay or
cause to be paid as annual gross base salary to Executive the amount of not
less than $150,000 during each of the years of the Term, beginning with the
Effective Date. Executive shall also, so long as he serves on the Board of
Directors, be entitled to directors fees on the same basis as paid to outside
directors, if the Board of Directors does not exclude him from such directors
fees. The Board of Directors shall also, from time to time, and at least once
each calendar year grant such additional "merit" increases, if any, in the
base salary as are determined after review to be appropriate in the
discretion of the Board of Directors. Executive's salary shall be payable in
equal installments in conformity with Bank's normal payroll periods as in
effect from time to time.
D. EXECUTIVE BENEFITS
1. VACATION. Executive shall be entitled to a vacation leave of
four (4) weeks during each year of the Term, of which two (2) weeks must be
taken consecutively in each calendar year. Executive shall also be entitled
to vacation pay, in lieu of up to two (2) weeks of vacation during each
calendar year, with the consent of the Board of Directors.
2. AUTOMOBILE ALLOWANCE. During the term hereunder, Bank shall
provide Executive, for Executive's sole use, a suitable full-size automobile,
or, if the Executive desires to use his own automobile, Bank shall pay
Executive a comparable auto allowance (not less than $600 per month) as
determined by the Board of Directors. Bank shall pay all operating expenses
of any nature whatsoever with regard to such automobile. Executive shall use
reasonable efforts to furnish to Bank substantially adequate records
and other documentary evidence required by federal and state statutes and
regulations issued by appropriate taxing authorities substantiating the
extent to which such payments are deductible business expenses of Bank
and not deductible additional compensation to Executive. Bank shall also
procure, pay for and maintain in force adequate insurance coverage for such
automobile. Bank and Executive agree that the value of Executive's personal
use of the automobile is twenty (20%) of the annual cost of the automobile
lease, repairs, and gasoline which shall be treated for tax purposes as
additional compensation to Executive, subject to appropriate withholding.
3. GROUP MEDICAL AND LIFE INSURANCE BENEFITS. Bank shall provide
for Executive, at Bank's expense to the extent permitted by Bank policy,
participation in a comprehensive major medical, dental, and optical plan,
with accident benefits, equivalent to either (i) the maximum available from
time to time under the California Bankers Association Group Insurance Program
for an employee of Executive's salary level; or (ii) the benefits
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under an insurance program adopted on a non-discriminatory basis for the
employees of the Bank generally. Life insurance benefits shall be provided to
Executive, at Bank's expense to the extent not prohibited by Bank policy
during the term hereof in an amount not less than $200,000, with Executive to
designate beneficiary thereunder.
4. BONUS. For the calendar year 1997, and for each full calendar
year of the Term completed by Executive pursuant to this Agreement, he shall
be entitled to an Incentive Bonus determined in accordance with this
paragraph. The Incentive Bonus shall equal lesser of (i) $160,000, or (ii)
the sum of the ROA Bonus and the ▇▇▇ Bonus, determined in accordance with the
Exhibit D-4. This bonus shall be payable in January of the year following
completion of the year on which it is based, or as soon thereafter as is
practical after the Bank's certified public accountants have delivered their
report on the Bank's condition and results of operations for the year.
5. SICK LEAVE. Executive shall be entitled to days of paid sick
leave in accordance with Bank policy.
E. BUSINESS EXPENSES AND REIMBURSEMENT.
1. BUSINESS EXPENSES. Executive shall be entitled to reimbursement
by Bank for any ordinary and necessary business expenses incurred by
Executive in the performance of Executive's duties and in acting for Bank
during the Term. Types of expenses qualifying for such reimbursement shall be
determined by the Board of Directors. Executive shall furnish to Bank
adequate records and other documentary evidence required by federal and state
statutes and regulations issued by the appropriate taxing authorities for the
substantiation of such payments as deductible business expenses of Bank and
not as deductible compensation to Executive; provided, however, that
reimbursement of such expenses shall not be dependent on proving
deductibility of such expenses for tax purposes if such expenses are
otherwise determined by the Board of Directors, in its sole discretion, to be
appropriate.
F. TERMINATION.
1. TERMINATION WITH CAUSE. Except as otherwise provided herein,
this Agreement may be terminated by Bank, at Bank's option with notice to
Executive, upon the occurrence of any of the following events:
(a) A material breach by Executive of any of the terms or
provisions of this Agreement;
(b) Executive is convicted of illegal activity by a court of
competent jurisdiction or pleads guilty to or nolo contendere to, illegal
activity, which activity materially adversely affects Bank's reputation in
the community or which evidences the lack of Executive's fitness or ability
to perform Executive's duties, as determined by the Board of Directors in
good faith; or
(c) Executive has committed any illegal or dishonest act which
would cause termination of coverage under Bank's Bankers Blanket Bond as to
Employee, as distinguished from termination of coverage as to Bank as a
whole; or
(d) Executive materially fails to perform or habitually
neglects Executive's duties or commits a material act of malfeasance or
misfeasance in connection therewith; or
(e) Executive becomes permanently disabled as such is defined
in his or Bank's disability insurance policy and such disability makes
Executive eligible for benefits thereunder (or if no such definition, as
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defined by federal law or regulation pursuant to the Social Security Act or a
related statute). Any controversy concerning Executive's disability shall be
settled by arbitration in accordance with the rules of the American
Arbitration Association. Any termination pursuant to this subsection (d)
shall not affect the continued operation of any disability income
continuation plan, which may be established for the benefit of Executive;
(f) An order under 12 U.S.C. 1818(b) or (e) or any similar statute
is issued against Executive or Bank which calls for his suspension or removal
from office; or
(g) The Superintendent of Banks, or other supervisory or regulatory
authority having jurisdiction takes possession of the property and business
of Bank pursuant to applicable statute or regulation.
2. TERMINATION WITHOUT CAUSE.
(a) During the Term, this Agreement may be terminated by Bank
without cause upon written notice to Executive.
(b) During the Term, this Agreement may be terminated by Executive
without cause upon sixty (60) days' prior written notice to Bank. Executive
and Bank agree that it would be impractical or extremely difficult to fix the
actual damage caused by Executive's breach of this Section F.2(b).
Accordingly, the amount of damage suffered and recoverable by Bank in the
event of Executive's breach of this provision shall be equal to the amount of
Base Salary for Executive for two months. Bank and Executive agree such sum
is a reasonable estimate of damage under the circumstances at the date
this Agreement is made.
3. COMPENSATION UPON TERMINATION. (a) If Executive's employment with
Bank is terminated by Bank pursuant to Section F.1. hereof or by Executive
pursuant to Section F.2. hereof, Executive shall then only be entitled to
receive salary through the effective date of such termination (without
proration of the Incentive Bonus described in Section D.4 above) and shall
receive any incurred but not reimbursed business expenses (subject to the
provisions of Section E.1. hereof).
(b) If Executive's employment is terminated by Bank pursuant to
Section F.2. hereof, Executive shall be entitled to receive Executive's
salary through the effective date of such termination; any incurred but not
reimbursed business expenses (subject to the provisions of Section E.1.
hereof); plus Executive's salary (as in effect immediately prior to
termination) for the "Severance Period", which shall be the lesser of two
years from the effective date of termination or the remainder of the Term to
be paid in equal installments in conformity with Bank's normal payroll
periods as in effect from time to time. However, if Executive's employment is
terminated by the Bank pursuant to Section F.2 within six months (6) after
the announcement or consummation, or during the pendency, of a Change in
Control Transaction, the Severance Period shall be the greater of 24 months
from the effective date of termination, or the remainder of the Term. A
"Change in Control Transaction" shall be limited to an acquisition by a
person, or group of persons acting in concert, of shares having the power to
elect a majority of the directors of the Bank, or a merger or other
acquisition of the Bank or its assets and business, in which the power to
elect a majority of the directors of the surviving corporation is in the
hands of persons who were not shareholders of the Bank as of one of the date
hereof or a date two years prior to such merger or other acquisition. In
addition to compensation for the Severance Period, Executive shall be
entitled to a lump sum payment of his Incentive Bonus (when calculated in
accordance with the timing set forth in Section D.4) for any calendar year in
which his employment is terminated by
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the Bank pursuant to Section F.2 in an amount equal to a pro-rated portion of
the Incentive Bonus provided in Section D.4 above (calculated as though the
period from the beginning of the year until the end of the month prior to the
termination were a full year).
G. GENERAL PROVISIONS.
1. Ownership of Books and Records; Confidentiality. (a) All records
or copies thereof of the accounts of customers, and any other records and
books relating in any manner whatsoever to the customers of Bank, and all
other files, books and records and other materials owned by Bank or used by
it in connection with the conduct of its business, whether prepared by
Executive or otherwise coming into his possession, shall be the exclusive
property of Bank regardless of who actually prepared the original material,
book or record. All such books and records and other materials, together with
all copies thereof, shall be immediately returned to Bank by Executive on
any termination of his employment.
(b) During the Term, Executive will have access to and become
acquainted with what Executive and Bank acknowledge are trade secrets, to
wit, knowledge or data concerning Bank, including its operations and
business, and the identity of customers of Bank, including knowledge of their
financial condition, their financial needs, as well as their methods of doing
business. Executive shall not disclose any of the aforesaid trade secrets,
directly or indirectly, or use them in any way, whether during the Term or
thereafter, except as required in the course of Executive's employment with
Bank. Executive shall not solicit any employee or customer of Bank to become
an employee or customer of another institution until the later of six (6)
months following the end of the Term or the end of the Severance Period.
2. ASSIGNMENT AND MODIFICATION. This Agreement, and the rights and
duties hereunder, may not be assigned by either party hereto without the prior
written consent of the other, and the parties expressly agree that any
attempt to assign the rights of any party hereunder without such consent
will be null and void; provided, however, that Bank's rights and obligations
hereunder shall be assignable without consent by operation of law in the
event of a merger or similar transaction involving the Bank.
3. FURTHER ASSURANCE. From time to time each party will execute and
deliver such further instruments and will take such other action as the other
party reasonably may request in order to discharge and perform the
obligations and agreements hereunder.
4. ARBITRATION. If the Parties hereto shall be unable to reach an
agreement on material provisions of this Agreement or on other issues then
such disputes shall be submitted to the the American Arbitration Association
("AAA") of closest to Monterey, California for resolution, in accordance with
the Commercial Arbitration Rules of the AAA (or by some other arbitrator
mutually agreed to by the parties). Such arbitration shall be conducted in
the following manner:
a. The Party desiring to resolve the dispute through arbitration
shall serve upon the Party a written notice of intent to exercise rights under
this arbitration provision. One arbitrator shall be required, and that
arbitrator shall be selected by the arbitration service, in a manner
determined by the AAA. The arbitrator shall be furnished with a statement of
issues in dispute and a summary of each party's position.
b. The arbitrator shall set a date for a hearing which shall be no
less than thirty (30) days and no more than one hundred twenty (120) days
after the arbitrator is selected. At the arbitration, each
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party shall present to the arbitrator the reasons why the respective
positions of the parties should be upheld. In considering such arguments, the
arbitrator may consider any evidence reasonably believed by him to be
credible and relevant to the determination which he is called upon to make.
The arbitrator may consider such hearsay and opinions of the parties as he
desires and may consider copies of any writings. The best evidence rule will
not apply nor any formal prerequisites required by the California Evidence
Code for the introduction of documents. Nothing contained herein shall
prevent either party from arguing about the weight to be given any evidence
under the Evidence Code or otherwise. The arbitrator shall not be bound by
either the Evidence Code, or the Code of Civil Procedure in determining the
evidence to be presented, admitted by him, or the method by which evidence
and arguments may be presented. All methods of discovery permitted by the
Code of Civil Procedure shall be permitted except use of requests for
admissions. Furthermore, a party shall only have fifteen (15) days from
receipt of interrogatories, or request for production to respond to the
propounding party. Each party shall have the right to take the deposition of
the other on twenty (20) days notice. The arbitrator shall determine a
method for resolution of any discovery dispute, which may include selecting
one arbitrator to resolve disputes by telephone conference. The arbitrator
may establish such rules as he deems reasonable for the conduct of the
arbitration, including requirements for the filing of memoranda supporting
the parties' positions.
c. The decision of the arbitrator shall be binding upon the Parties
and shall constituted a complete determination of the issues considered by
the arbitrator. The provisions this Section shall constitute a binding
arbitration agreement between the Parties pursuant to Code of Civil Procedure
Section 1321 et seq.
d. Each party shall be responsible for one-half of all costs of the
arbitration. Each party shall deposit with the AAA, one-half (1/2) of all
required deposits. The failure of either party to make such deposit within
thirty (30) days of notice of such cost shall automatically entitle the other
party to an arbitration determination favorable to the party making the
required deposit. Each party shall pay their own fees and attorney's fees and
costs for the arbitration.
e. No arbitrator shall have ever been employed by either party or
their successors in interest or any of their Shareholders, officer,
directors, partners nor shall they be related to any of such individuals by
any relationship closer than consanguinity in the third degree.
NOTICE. BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE
ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF
DISPUTES" PROVISIONS DECIDED BY NEUTRAL ARBITRATION, AS PROVIDED HEREIN AND
BY CALIFORNIA LAW, AND YOU HEREBY AGREE TO WAIVE ANY RIGHTS YOU MAY POSSESS TO
HAVE SUCH DISPUTE LITIGATED AND RESOLVED IN A COURT OR JURY TRIAL.
BY INITIALING IN THE SPACE BELOW YOU HEREBY WAIVE YOUR JUDICIAL
RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE INCLUDED IN THIS
ARBITRATION OF DISPUTES PROVISION.
IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR EXECUTION OF THIS AGREEMENT AND YOUR
APPROVAL, SPECIFICALLY OF THIS PARAGRAPH 16, ACKNOWLEDGES THAT YOUR EXECUTION
OF THIS PROVISION IS VOLUNTARY AND THAT PRIOR TO SUCH EXECUTION YOU HAVE
CONSULTED WITH INDEPENDENT COUNSEL CONCERNING THE EFFECTS OF SUCH PROVISION
TO THE EXTENT YOU HAVE DEEMED NECESSARY, PRIOR TO YOUR EXECUTION OF THIS
PROVISION.
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THE PARTIES HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE TO, THE TERMS
HEREOF AND TO THE SUBMISSION OF ANY DISPUTES TO ARBITRATION BY THE AAA, AS
SET FORTH HEREIN.
BW CTC
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Bank's Initials Executive's Initials
4. NOTICES. All notices required or permitted hereunder shall be in
writing and shall be delivered in person or sent by certified or registered
mail, return receipt requested, postage prepaid as follows:
To Bank: Monterey County Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Board of Directors
To Executive: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other party or address as either of the parties may designate in a
written notice served upon the other party in the manner provided herein. All
notices required or permitted hereunder shall be deemed duly given and
received on the date of delivery if delivered in person or on the second day
next succeeding the date of mailing if sent by certified or registered mail,
postage prepaid.
5. SUCCESSORS. This Agreement shall be binding upon, and shall inure
to the benefit of, the successors and assigns of the parties.
6. ENTIRE AGREEMENT. Except as provided herein, this Agreement
constitutes the entire agreement between the parties, and all prior
negotiations, representations, or agreements between the parties, whether oral
or written, are merged into this Agreement. This Agreement may only be
modified by an agreement in writing executed by both of the parties hereto.
7. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of California.
8. EXECUTED COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which together shall constitute a single agreement
and each of which shall be an original for all purposes.
9. SECTION HEADINGS. The various section headings are inserted for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement or any section hereof.
10. CALENDAR DAYS/CLOSE OF BUSINESS. Unless the context so requires,
all periods terminating on a given day, period of days or date shall
terminate on the close of business on that day or date and references to
"days" shall refer to calendar days.
11. SEVERABILITY. In the event that any of the provisions, or portions
thereof, of this Agreement are held to the unenforceable or invalid by any
court of competent jurisdiction, the validity and enforceability of the
remaining provisions of portions thereof, shall not be affected thereby.
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12. ATTORNEY'S FEES. In the event that any party shall bring an action
or arbitration in connection with the performance, breach or interpretation
hereof, then the prevailing party in such action as determined by the court
or other body having jurisdiction shall be entitled to recover from the
losing party in such action, as determined by the court or other body having
jurisdiction, all reasonable costs and expenses of litigation or arbitration,
including reasonable attorney's fees, court costs, costs of investigation and
other costs reasonably related to such proceeding, in such amounts as may be
determined in the discretion of the court or other body having jurisdiction.
IN WITNESS WHEREOF, this Agreement is executed as of the day and year
first above written.
BANK: MONTEREY COUNTY BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and
Chief Operating Officer
EXECUTIVE: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇-▇
CALCULATION OF BONDS
The ROA and ▇▇▇ Bonuses shall be based on the Bank's pretax return on
average assets and beginning equity using in the following amounts:
ROA ROA BONUS ▇▇▇ ▇▇▇ BONUS
---- --------- --- ---------
0.8% $ 10,000 9% $ 10,000
0.9% $ 20,000 10% $ 20,000
1.0% $ 30,000 11% $ 30,000
1.1% $ 40,000 12% $ 40,000
1.2% $ 50,000 13% $ 50,000
1.3% $ 60,000 14% $ 60,000
1.4% $ 70,000 15% $ 70,000
1.5% $ 80,000 16% $ 80,000
1.6% $ 90,000 17% $ 90,000
1.7% $100,000 18% $100,000
1.8% $110,000 19% $110,000
1.9% $120,000 20% $120,000
2.0% $130,000 21% $130,000
2.1% $140,000 22% $140,000
2.2% $150,000 23% $150,000
2.3% $160,000 24% $160,000
MAXIMUM COMBINED - $160,000, or $310,000 minus non-bonus salary excluding
compensation, if any, for vacation not taken) for the year. The return's
shall be calculated before deduction for any annual performance bonuses, but
after deduction for commissions and bonuses paid on a monthly basis.
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