EXHIBIT "10 (b)"
EMPLOYMENT CONTRACTS OF CERTAIN EXECUTIVE OFFICERS
EXECUTIVE EMPLOYMENT AGREEMENT
This is an Employment Agreement (hereinafter referred to as
this ("Agreement") made effective as of this 27th day of
March , 1996 by and between SDNB Financial Corp., a California
corporation("Employer") sometimes referred to hereafter as
("Financial") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (hereinafter referred to
as "Employee").
RECITAL
This Agreement is made with reference to the following
facts:
A. Employee is currently employed as President and Chief
Executive Officer of Financial and CEO of Employer's wholly owned
subsidiary, San Diego National Bank, a national association
(hereinafter referred to as the "Bank").
B. Employer believes it to be in its best interest to have
Employee continue his/her employment with the Bank in such
capacities and in order to induce Employee to accept such
continued employment as President and Chief Executive Officer,
Employer is willing to enter into this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and for other good and valuable consideration,
Employer and Employee covenant and agree as follows:
1. Term of Employment. Employer hereby agrees to cause the
Bank and Financial to employ Employee and Employee hereby accepts
employment with the Bank & Financial for a period beginning on
the effective date of this Agreement as set forth hereinabove and
continuing through and until December 31, 1998 (hereinafter
referred to as the "Initial Employment Term"). In the event of
any extension of this Agreement for one or more consecutive one
(1) year terms upon the agreement of the parties hereto, or
pursuant to the provisions of Section 9 hereof, the terms of this
Agreement shall be deemed to continue in effect for the term of
such extension (hereinafter referred to as the "Extended
Employment Term") (the Initial Employment Term and the Extended
Employment Term hereinafter collectively referred to as the
"Employment Term").
2. Duties of Employee. Employee shall serve as President
and Chief Executive Officer throughout the Employment Term.
Employee shall have such duties and responsibilities as are
presently set forth in the Bylaws of the Bank and as are
commensurate with such position, as may be from time to time more
particularly set fourth by the Board of Directors of the Bank and
Financial. Employee shall devote such portion of his productive
time and attention to the business of the Bank as shall be
reasonably necessary to carry out his duties during the
Employment Term. Employee shall also serve as director of the
Bank and Financial and shall be required to serve as an officer
and director of all other corporations which are wholly-owned
subsidiaries of Financial which exist now or may exist during the
Employment Term. Subject to the provision of Section 12 hereof,
this Agreement shall not be interpreted to prohibit Employee from
making passive personal investments or conducting private
business affairs if such activities do not materially interfere
with the services required under this Agreement.
3. Indemnification. Employer shall indemnify and hold
Employee harmless from all losses, costs, damages, liability,
therefor, charges, claims, demands, attorneys' fees and/or
expenses, actions and causes of action of any nature or sort,
liquidated or unliquidated, past, present and future, of
whatsoever kind or character which shall or may at any time
incurred, suffered or sustained by Employee arising from the
discharge of his duties on behalf of the Bank and/or Financial
and/or other subsidiaries of Financial for which Employee
provides services.
4. Compensation. As full compensation for the services to
be performed hereunder, Employee shall receive the following:
a. Basic Salary Subject to approved annual
increases as hereinafter provided, basic salary at the rate of
One Hundred Eighty Five Thousand One Hundred Twenty Dollars
($185,120) per year to be paid in accordance with the payroll
schedule established by the Bank's Board of Directors for all
Bank employees as in effect from time to time. The basic annual
salary set forth in this paragraph may be adjusted on January 1
or each year of the Employment Term at the discretion of the
Employer's Board of Directors for all Bank employees as in effect
from time to time. The basic annual salary set forth in this
paragraph shall be adjusted on January 1 of each year of the
Employment Term at the discretion of the Employer's Board of
Directors, but in no event shall the adjusted amount less than
the amount of Employee's basic annual salary for the preceding
year.
b. Bonuses and Deferred Savings Plan. Employee shall
be entitled to receive such other compensation as may be
determined by the Employer's Board of Directors to be
appropriate, in its sole discretion, including without limitation
any amounts payable to Employee by participation in the Bank's
Bonus Program and Deferred Savings Plan in accordance with the
terms and conditions of said plans as in effect during the
Employment Term. Employer shall not reduce during the Employment
Term the proportionate annual share of the total amount of said
Bonus Program and Deferred Savings Plan which Employee is
eligible to receive based upon said Program and Plan as presently
in effect as of the date of this Agreement. Further, if said
Program and/or Plan are eliminated by Employer or Bank, Employee
shall nevertheless continue to receive during the Employment Term
an annual share of the Bank's profits which Employee last
received pursuant to said program and/or Plan.
5. Tax Withholding. Employer shall have the right to
deduct or withhold from the compensation due to Employee
hereunder any and all sums required for any and all federal,
social security, state and local taxes now applicable or that may
be enacted and become applicable in the future.
6. Employee Benefits.
a. Vacation Time. Employee shall be entitled to
vacation time as set forth in the Bank's policies each calendar
year during the Employment Term without loss of compensation.
One increment of such annual vacation time shall be taken by
Employee for a period of not less than two (2) consecutive weeks.
In the event that Employee does not for any reason take the total
amount of vacation time authorized herein during any year, the
amount of time not taken in said year shall accumulate, and be
available as additional vacation time in subsequent years;
however, Employee shall not be permitted at any time to
accumulate vacation time in excess of the amount of vacation time
authorized for Employee during a two-year period.
b. Use of Automobile. Employer shall provide Employee
with the use of an "executive class" automobile throughout the
Employment Term, or alternatively, at the discretion of Employer,
an automobile allowance of Six Hundred ($600) Dollars per month.
In addition, whether Employer provides Employee with an
automobile or with an automobile allowance, Employer shall pay or
reimburse for all operating expense of the automobile used by
Employee, including a reasonable gasoline allowance and shall
further provide and maintain liability insurance on such
automobile, with coverage in amounts to be determined by the
Employer's Board of Directors, but in any event not less than the
minimum liability coverage required by California law. Employee
shall be required to maintain adequate records of all business
mileage incurred an all automobile operating expenses, such
records to be maintained in compliance with IRS record-keeping
guidelines then in effect.
c. Seminars. Employer shall reimburse Employee for
all costs and expenses, including without limitation registration
fees, transportation costs, meals and lodging, incurred by
Employee in connection with Employee's attendance at all
professional seminars relating to the financial services industry
for which Employee's attendance would be of benefit to Employer.
d. Club. Employer shall pay all ongoing dues related
to employee's membership in one "country-club" type club selected
by Employee and subject to the express approval of the Employer's
Board of Directors, shall pay all membership and/or initiation
fees connected with said membership.
e. Disability Insurance. Employer shall pay all
costs and expenses, including without limitation premiums, to
provide disability insurance coverage for Employee, which
coverage shall be in an appropriate and customary amount based
upon Employee's position and salary hereunder and subject to
approval of medical records by the insurer.
f. Additional Benefits. Employee shall be entitled to
receive the greater of: (1) all employment benefits made
available to other officers of the Bank and its affiliates and
commensurate with Employee's position and title with the Bank,
and (2) all employment benefits currently received by Employee as
of the date of this Agreement. Such benefits shall include, but
are not limited to, such health insurance, life insurance, sick
leave, pension, and retirement plans as are adopted from time to
time by the Bank. In the event that any benefit plan or plans
adopted by the Bank or all of its employees conflicts with or
overlaps any specific benefit set forth in this paragraph 6,
Employee shall be entitled to whichever benefit is the greater of
the two...
7. Life Insurance. In addition to any life insurance
policies paid for by Employer pursuant to Section 6.c, in which
Employee is named as its insured and in discretion, may purchase
such life insurance policies as it deems necessary or
appropriate, naming Employee as the insured and Employer as
beneficiary. Employee hereby agrees to submit, at employer's
cost, to any reasonable medical examination required for the
purchase of such insurance.
8. Expenses. Employee shall be reimbursed for all
reasonable expenses incurred by his pursuant to he performance of
his duties and responsibilities hereunder. Employee shall keep
complete and accurate records, including but not limited to proof
of payment of all such expenses, so that he may fully account to
the Employer if so requested.
9. Extension of Term Upon Changing Control. In the event
that there is a change in control of the Bank and/or Financial,
as that term is defined in 12 U.S.C. Section 1817 (Change in Bank
Control Act of 1978), whether by merger, acquisition, "friendly"
or hostile" "takeover" or otherwise, this Agreement shall be
deemed extended for three years from the date of said change in
control. During said period of extension, Employee shall be paid
his compensation then applicable hereunder, and shall continue
his participation in the Bank's Bonus Sharing Program and
Deferred Savings Plan in accordance with Section 4.b hereof, and
in no case shall Employer have any right to terminate the
employment of Employee hereunder, except "for cause," as said
term is defined in Section 10.a hereof. Further, in said event,
Employee shall receive during the Extended Employment term a
minimum of a ten percent (10%) increase in salary per annum each
January 1 subsequent to the date of said change in control.
10. Termination of Agreement.
a. Termination for Cause. Employer may terminate
this Agreement without notice for "cause." For the purposes of
this Agreement, "Cause" shall be defined as willful misconduct or
willful dishonesty of Employee in his capacity as President and
Chief Executive Officer of Bank and/or Financial, or willful
material breach or habitual neglect of the duties which Employee
is required to perform under the terms of this agreement.
b. Effect of Termination. In the event of termination
of Employee for cause as set froth in Section 10.a, and assuming
that Employer is not in material default hereunder, all future
bonuses or other salaries payable to or claimed by Employee are
waived, and any additional salary or bonus shall be paid only in
the sole and absolute discretion of Employer. In the event
Employee voluntarily terminates his employment hereunder,
Employee shall be entitled to a pro rata share of bonus
compensation based upon the formula contained in Section 10.c
hereof. Nothing in this Section 10 shall affect the rights of
the parties under Section 12 hereof.
c. Disability and Death. If, during the Employment
Term Employee should die or suffer any physical or mental illness
that renders him incapable of fulfilling his obligations under
this Agreement, and such incapacity exists or may reasonably be
expected to exist for more than one hundred and fifty (150)
consecutive days, Employer may, upon forty-five (45) days written
notice to Employee, terminate this Agreement. The determination
of Employer that Employee is incapable of fulfilling his
obligations under this Agreement, so long as such determination
is made in good faith and is supported by a reasonable medical
opinion, shall be final and binding. In the event of termination
under this Section 10.c, Employee, or his estate, shall be
entitled (I) to an amount equal to twelve (12) months' salary
payable forthwith, and (ii) to a pro rata share of bonus
compensation based upon the ratio of the number of days of the
portion of the bonus term then in effect prior to Employee's
death or disability, as the case may be, to the number of days of
the full bonus term, payable at the time when said bonus is
payable to all employees, and (iii) to any other accrued
compensation, plus such additional benefits, if any, as may be
approved by Employer's Board of Directors. Employee, or his
estate, shall, upon termination under the terms of this Section
10.c, be further entitled to additional pro rata compensation
based upon the ratio of the number of accrued vacation days, if
any, not taken by Employee during the year, as defined for the
purposes of vacation, in which Employee was so terminated, to 365
days.
d. Communication of Termination. Any termination by
Employer of Employee shall be communicated by written notice of
termination which shall indicate the specific termination
provision of this Agreement relied upon by Employer, and shall
set forth in reasonable detail the facts and circumstances
claimed to provide a basis for such termination.
11. Location. Employee shall not be required to move from
or perform his duties hereunder in any geographical area other
than the San Diego County area.
12. Non-Competition.
a. While Employed. During the Employment Term,
Employee shall not, directly or indirectly, either as an
employee, employer, consultant, agent, principal partner,
stockholder, corporate officer, director, or in any other
individual or representative capacity, engage or participate in
or acquire, hold, or retain any interest in any business of the
Bank in any location, unless such participation or interest is
fully disclosed to the Bank and Financial Corp. approval by a
majority of the Board of Directors of each. The foregoing
notwithstanding, Employee may acquire, hold or retain equity
ownership of any publicly-held company, provided that such equity
ownership does not exceed five percent (5%) of the issued and
outstanding shares of voting stock of such company.
b. Upon Early Termination or Termination for Cause.
If Employee is terminated for cause (as defined in Section 10.a
hereof) or voluntarily resigns from employment hereunder prior
to the termination of the Initial Employment Term without the
consent of Employer, Employee shall not acquire, hold or retain
any interest (direct or indirect) in any business in the County
of San Diego, in the State of California, and in such other
locations where the Bank is then engaged in business from time to
time during the remainder of the Initial Employment Term that is
in competition with the business of the Bank until the date on
which the employees' employment was to naturally terminate
according to the terms hereof; provided, however, that in the
event that prior to any such voluntary resignation as aforesaid,
Employer has offered in writing to extend the term of this
Agreement for an additional year on the same terms and conditions
as set forth in this Agreement with compensation increased in
accordance with Section 4.a hereof, then Employee's obligation
under this Section 12.b shall be extended for an additional one
(1) year beyond the Initial Employment Term.
c. If any portion of this Section 12 is held to be
illegal, unenforceable, void, or voidable, the remainder shall
remain in full force and effect, and this Section 12 shall be
deemed altered and amended to the minimum extent necessary to
bring it within the legal requirements.
13. Unique Services. Employee hereby represents and
agrees that the services to be performed under the terms of this
Agreement are of a special, unique, unusual, extraordinary and
intellectual character that gives them a peculiar value, the loss
of which cannot be reasonable or adequately compensated in
damages in any action at law. Employee, therefore, expressly
agrees that Employer, in addition to any rights or remedies that
Employer might possess, shall be entitled to injunctive and other
equitable relief to prevent or remedy a breach of this Agreement
by Employee.
14. Confidential Information.
a. For purposes of this Agreement, "Confidential
Information: shall mean information or material proprietary to
Employer or Bank or designated as Confidential Information by
Employer or Bank and not generally known by non-Bank personnel
which Employee develops or of which Employee may obtain knowledge
or access through or as a result of Employee's employment with
the Employer or Bank (including information conceived,
originated, discovered, or developed, in whole or in part, by
Employee). The Confidential Information includes, but is not
limited to, the following types of information and other
information of a similar nature (whether or not reduced to
writing): Drawings, specifications, models, data, documentation,
diagrams, flow charts, research, development, procedures,
marketing techniques and materials, marketing and development
plans, customer lists, and names and other information related to
customers, pricing and loan policies, financial information and
projections customer loans and employee files. Confidential
Information also includes any information described above which
Employer obtains from another party, and which Employer treats as
proprietary or designates as Confidential Information, whether or
not owned or developed by Employer, For purposes of this Section
a., Employer and/or Bank shall mean the Bank, Financial or any of
their affiliates. INFORMATION PUBLICLY KNOWN THAT IS GENERALLY
EMPLOYED BY FINANCIAL INSTITUTIONS AT OR AFTER THE TIME EMPLOYEE
FIRST HEARS OF SUCH INFORMATION OR GENERIC INFORMATION, OR
GENERAL KNOWLEDGE WHICH EMPLOYEE WOULD HAVE LEARNED IN THE COURSE
OF SIMILAR EMPLOYMENT OR WORK ELSEWHERE SHALL NOT BE DEEMED PART
OF THE CONFIDENTIAL INFORMATION.
b. All notes, data, reference materials, sketches,
drawings, memoranda, documentation, and records in any way
incorporating or reflecting any of the Confidential Information
and all proprietary rights therein, including copy rights, shall
belong exclusively to Employer, and Employee agrees to turn over
all copies of such materials in Employee's possession or control
to Employer upon request or upon termination of Employee's
employment with Employer.
c. Employee agrees during his employment by Employer
and thereafter to hold in confidence and not to directly or
indirectly reveal, report, publish, disclose, or transfer any of
the Confidential Information to any person or entity, or utilize
any of the Confidential Information for any purpose, except in
the due performance of Employee's services for Employer.
d. Because of the unique nature of the Confidential
Information, Employee understands and agrees that Employer will
suffer irreparable harm in the event that Employee fails to
comply with any of his obligations under this Section 14, and
that monetary damages will be inadequate to compensate Employer
for such breach. Accordingly, Employee agrees that Employer
will, in addition to any other remedies available to them at law
or in equity, be entitled to injunctive relief to enforce the
terms of this Section 14.
15. Notices. Any notices to be given hereunder by
either party to the other shall be in writing and may be
transmitted by personal delivery or by certified mail, return
receipt requested. Mailed notices shall be addressed the parties
as follows:
If notice is to Financial, to:
Board of Directors
SDNB Financial Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
San Diego National Bank
If notice is to Bank, to:
Board of Directors
SDNB Financial Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
San Diego National Bank
If notice is to Employee, to:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇: ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party may change its address by written notice in
accordance with this paragraph. Notices delivered personally
shall be deemed communicated as of the date of actual receipt;
mailed notices shall be deemed communicated as of forty-eight
(48) hours after the date of mailing.
16. Entire Agreement. This Agreement, in combination
with any collateral documents referred to herein, supersedes any
and all other agreements, either oral or in writing, between the
parties hereto with respect to the employment of Employee by the
Employer and contains all of the covenants and agreements between
the parties with respect to said employment.
17. Modifications. Any modification of this Agreement
shall be effective only if it is in writing and signed by the
parties hereto.
18. Effect of Waiver. The failure of either party to
insist on strict compliance with any of the terms, covenants or
conditions of this Agreement by the other party shall not be
deemed a waiver of that term, covenant, or condition, nor shall
any waiver or relinquishment of any right or power at any one
time or times be deemed a waiver or relinquishment of that right
or power for all or any other times.
19. Partial Invalidity. If any provision of this
Agreement is held be a court of competent jurisdiction to be
invalid, void, or unenforceable, the remaining provisions shall
nevertheless continue in full force without being impaired or
invalidated in any way, unless such partial invalidity materially
affects the intent of the parties as indicated herein.
20. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the state of
California applicable to contracts between residents of
California which are wholly executed and performed in California.
21. Assignability. The rights and duties of either
party hereunder shall not be assignable by either party, except
that this Agreement and all rights and obligations hereunder may
be assigned by Employer to, and be assumed by, any corporation or
other business entity which succeeds to all or substantially all
of the assets and business of Employer through merger,
consolidation acquisition of assets, or other corporate
reorganization. Subject to the provisions of the immediately
preceding sentence, this agreement shall be binding upon and
inure to the benefit of the heirs, executors and/or
administrators of Employee and to the successors and assigns of
Employer.
22. Arbitration. Any controversy or claim arising
out of or relating to this agreement, or the breach thereof,
shall be settled by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association (as such rules shall be in effect on the date a
demand for arbitrating is communicated from one party to the
other party hereto) in San Diego, California, and judgment upon
the award rendered by thereof. Employer shall bay the fees of
all arbitrators, witnesses and such other expenses as may be
generated by the arbitration's, including without limitation,
attorneys' fees of the Parties, unless in the event the
arbitration was instituted by Employee, the majority of the
Arbitrators conclude that said arbitration was not initiated in
good faith by Employee; under said circumstance, the arbitrators
shall be authorized to allocate costs and attorneys' fees as they
shell deem appropriate with due consideration to both the
relative financial abilities of the parties and the merits of the
positions of the parties with respect to the dispute underlying
the arbitration.
23. Headings. The headings used in this Agreement are
for convenience of reference only and are not part of this
Agreement and do not in any way limit or amplify the terms and
provisions hereof.
24. Further Acts and Documents. The parties hereto
agree to perform all further acts and execute all further
documents reasonably necessary to implement to purposes of this
Agreement.
Employer:
SDNB Financial Corp.
a California Corporation
By:
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President/Chief Executive Officer Vice Chairman
of the Board
Date: March 27, 1996 Date: March 27, 1996
EXECUTIVE EMPLOYMENT AGREEMENT
This is an Employment Agreement (hereinafter referred to as
this ("Agreement") made effective as of this 27th day of
March , 1996 by and between San Diego National Bank, ("Employer"
)and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (hereinafter referred to as
"Employee").
RECITAL
This Agreement is made with reference to the following
facts:
A. Employee is currently employed as President, San Diego
National Bank, a national banking association (hereinafter
referred to as the "Bank").
B. Employer believes it to be in its best interest to have
Employee continue his/her employment with the Bank in such
capacities and in order to induce Employee to accept such
continued employment as President, Employer is willing to enter
into this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and for other good and valuable consideration,
Employer and Employee covenant and agree as follows:
1. Term of Employment. Employer hereby agrees to cause the
Bank to employ Employee and Employee hereby accepts employment
with the Bank for a period beginning on the effective date of
this Agreement as set forth hereinabove and continuing through
and until December 31, 1998 (hereinafter referred to as the
"Initial Employment Term"). In the event of any extension of
this Agreement for one or more consecutive one (1) year terms
upon the agreement of the parties hereto, or pursuant to the
provisions of Section 9 hereof, the terms of this Agreement shall
be deemed to continue in effect for the term of such extension
(hereinafter referred to as the "Extended Employment Term") (the
Initial Employment Term and the Extended Employment Term
hereinafter collectively referred to as the "Employment Term").
2. Duties of Employee. Employee shall serve as President
of the Bank, throughout the Employment Term. Employee shall have
such duties and responsibilities as are presently set forth in
the Bylaws of the Bank and as are commensurate with such
position, as may be from time to time more particularly set
fourth by the Board of Directors of the Bank and Financial.
Employee shall devote such portion of his productive time and
attention to the business of the Bank as shall be reasonably
necessary to carry out his duties during the Employment Term.
Employee shall also serve as director of the Bank and Financial
and shall be required to serve as an officer and director of all
other corporations which are wholly-owned subsidiaries of
Financial which exist now or may exist during the Employment
Term. Subject to the provision of Section 12 hereof, this
Agreement shall not be interpreted to prohibit Employee from
making passive personal investments or conducting private
business affairs if such activities do not materially interfere
with the services required under this Agreement.
3. Indemnification. Employer shall indemnify and hold
Employee harmless from all losses, costs, damages, liability,
therefor, charges, claims, demands, attorneys' fees and/or
expenses, actions and causes of action of any nature or sort,
liquidated or unliquidated, past, present and future, of
whatsoever kind or character which shall or may at any time
incurred, suffered or sustained by Employee arising from the
discharge of his duties on behalf of the Bank and/or Financial
and/or other subsidiaries of Financial for which Employee
provides services.
4. Compensation. As full compensation for the services to
be performed hereunder, Employee shall receive the following:
a. Basic Salary Subject to approved annual
increases as hereinafter provided, basic salary at the rate of
One Hundred Twenty Three Thousand Five Hundred and Fifty Dollars
($123,550) per year to be paid in accordance with the payroll
schedule established by the Bank's Board of Directors for all
Bank employees as in effect from time to time. The basic annual
salary set forth in this paragraph may be adjusted on January 1
or each year of the Employment Term at the discretion of the
Employer's Board of Directors for all Bank employees as in effect
from time to time. The basic annual salary set forth in this
paragraph shall be adjusted on January 1 of each year of the
Employment Term at the discretion of the Employer's Board of
Directors, but in no event shall the adjusted amount less than
the amount of Employee's basic annual salary for the preceding
year.
b. Bonuses and Deferred Savings Plan. Employee shall
be entitled to receive such other compensation as may be
determined by the Employer's Board of Directors to be
appropriate, in its sole discretion, including without limitation
any amounts payable to Employee by participation in the Bank's
Bonus Program and Deferred Savings Plan in accordance with the
terms and conditions of said plans as in effect during the
Employment Term. Employer shall not reduce during the Employment
Term the proportionate annual share of the total amount of said
Bonus Program and Deferred Savings Plan which Employee is
eligible to receive based upon said Program and Plan as presently
in effect as of the date of this Agreement. Further, if said
Program and/or Plan are eliminated by Employer or Bank, Employee
shall nevertheless continue to receive during the Employment Term
an annual share of the Bank's profits which Employee last
received pursuant to said program and/or Plan.
5. Tax Withholding. Employer shall have the right to
deduct or withhold from the compensation due to Employee
hereunder any and all sums required for any and all federal,
social security, state and local taxes now applicable or that may
be enacted and become applicable in the future.
6. Employee Benefits.
a. Vacation Time. Employee shall be entitled to
vacation time as set forth in the Bank's policies each calendar
year during the Employment Term without loss of compensation.
One increment of such annual vacation time shall be taken by
Employee for a period of not less than two (2) consecutive weeks.
In the event that Employee does not for any reason take the total
amount of vacation time authorized herein during any year, the
amount of time not taken in said year shall accumulate, and be
available as additional vacation time in subsequent years;
however, Employee shall not be permitted at any time to
accumulate vacation time in excess of the amount of vacation time
authorized for Employee during a two-year period.
b. Use of Automobile. Employer shall provide Employee
with the use of an "executive class" automobile throughout the
Employment Term, or alternatively, at the discretion of Employer,
an automobile allowance of Six Hundred ($600) Dollars per month.
In addition, whether Employer provides Employee with an
automobile or with an automobile allowance, Employer shall pay or
reimburse for all operating expense of the automobile used by
Employee, including a reasonable gasoline allowance and shall
further provide and maintain liability insurance on such
automobile, with coverage in amounts to be determined by the
Employer's Board of Directors, but in any event not less than the
minimum liability coverage required by California law. Employee
shall be required to maintain adequate records of all business
mileage incurred an all automobile operating expenses, such
records to be maintained in compliance with IRS record-keeping
guidelines then in effect.
c. Seminars. Employer shall reimburse Employee for
all costs and expenses, including without limitation registration
fees, transportation costs, meals and lodging, incurred by
Employee in connection with Employee's attendance at all
professional seminars relating to the financial services industry
for which Employee's attendance would be of benefit to Employer.
d. Club. Employer shall pay all ongoing dues related
to employee's membership in one "country-club" type club selected
by Employee and subject to the express approval of the Employer's
Board of Directors, shall pay all membership and/or initiation
fees connected with said membership.
e. Disability Insurance. Employer shall pay all
costs and expenses, including without limitation premiums, to
provide disability insurance coverage for Employee, which
coverage shall be in an appropriate and customary amount based
upon Employee's position and salary hereunder and subject to
approval of medical records by the insurer.
f. Additional Benefits. Employee shall be entitled to
receive the greater of: (1) all employment benefits made
available to other officers of the Bank and its affiliates and
commensurate with Employee's position and title with the Bank,
and (2) all employment benefits currently received by Employee as
of the date of this Agreement. Such benefits shall include, but
are not limited to, such health insurance, life insurance, sick
leave, pension, and retirement plans as are adopted from time to
time by the Bank. In the event that any benefit plan or plans
adopted by the Bank or all of its employees conflicts with or
overlaps any specific benefit set forth in this paragraph 6,
Employee shall be entitled to whichever benefit is the greater of
the two...
7. Life Insurance. In addition to any life insurance
policies paid for by Employer pursuant to Section 6.c, in which
Employee is named as its insured and in discretion, may purchase
such life insurance policies as it deems necessary or
appropriate, naming Employee as the insured and Employer as
beneficiary. Employee hereby agrees to submit, at employer's
cost, to any reasonable medical examination required for the
purchase of such insurance.
8. Expenses. Employee shall be reimbursed for all
reasonable expenses incurred by his pursuant to he performance of
his duties and responsibilities hereunder. Employee shall keep
complete and accurate records, including but not limited to proof
of payment of all such expenses, so that he may fully account to
the Employer if so requested.
9. Extension of Term Upon Changing Control. In the event
that there is a change in control of the Bank and/or Financial,
as that term is defined in 12 U.S.C. Section 1817 (Change in Bank
Control Act of 1978), whether by merger, acquisition, "friendly"
or hostile" "takeover" or otherwise, this Agreement shall be
deemed extended for three years from the date of said change in
control. During said period of extension, Employee shall be paid
his compensation then applicable hereunder, and shall continue
his participation in the Bank's Bonus Sharing Program and
Deferred Savings Plan in accordance with Section 4.b hereof, and
in no case shall Employer have any right to terminate the
employment of Employee hereunder, except "for cause," as said
term is defined in Section 10.a hereof. Further, in said event,
Employee shall receive during the Extended Employment term a
minimum of a ten percent (10%) increase in salary per annum each
January 1 subsequent to the date of said change in control.
10. Termination of Agreement.
a. Termination for Cause. Employer may terminate
this Agreement without notice for "cause." For the purposes of
this Agreement, "Cause" shall be defined as willful misconduct or
willful dishonesty of Employee in his capacity as President of
Bank and/or Financial, or willful material breach or habitual
neglect of the duties which Employee is required to perform under
the terms of this agreement.
b. Effect of Termination. In the event of termination
of Employee for cause as set froth in Section 10.a, and assuming
that Employer is not in material default hereunder, all future
bonuses or other salaries payable to or claimed by Employee are
waived, and any additional salary or bonus shall be paid only in
the sole and absolute discretion of Employer. In the event
Employee voluntarily terminates his employment hereunder,
Employee shall be entitled to a pro rata share of bonus
compensation based upon the formula contained in Section 10.c
hereof. Nothing in this Section 10 shall affect the rights of
the parties under Section 12 hereof.
c. Disability and Death. If, during the Employment
Term Employee should die or suffer any physical or mental illness
that renders him incapable of fulfilling his obligations under
this Agreement, and such incapacity exists or may reasonably be
expected to exist for more than one hundred and fifty (150)
consecutive days, Employer may, upon forty-five (45) days written
notice to Employee, terminate this Agreement. The determination
of Employer that Employee is incapable of fulfilling his
obligations under this Agreement, so long as such determination
is made in good faith and is supported by a reasonable medical
opinion, shall be final and binding. In the event of termination
under this Section 10.c, Employee, or his estate, shall be
entitled (I) to an amount equal to twelve (12) months' salary
payable forthwith, and (ii) to a pro rata share of bonus
compensation based upon the ratio of the number of days of the
portion of the bonus term then in effect prior to Employee's
death or disability, as the case may be, to the number of days of
the full bonus term, payable at the time when said bonus is
payable to all employees, and (iii) to any other accrued
compensation, plus such additional benefits, if any, as may be
approved by Employer's Board of Directors. Employee, or his
estate, shall, upon termination under the terms of this Section
10.c, be further entitled to additional pro rata compensation
based upon the ratio of the number of accrued vacation days, if
any, not taken by Employee during the year, as defined for the
purposes of vacation, in which Employee was so terminated, to 365
days.
d. Communication of Termination. Any termination by
Employer of Employee shall be communicated by written notice of
termination which shall indicate the specific termination
provision of this Agreement relied upon by Employer, and shall
set forth in reasonable detail the facts and circumstances
claimed to provide a basis for such termination.
11. Location. Employee shall not be required to move from
or perform his duties hereunder in any geographical area other
than the San Diego County area.
12. Non-Competition.
a. While Employed. During the Employment Term,
Employee shall not, directly or indirectly, either as an
employee, employer, consultant, agent, principal partner,
stockholder, corporate officer, director, or in any other
individual or representative capacity, engage or participate in
or acquire, hold, or retain any interest in any business of the
Bank in any location, unless such participation or interest is
fully disclosed to the Bank and Financial Corp. approval by a
majority of the Board of Directors of each. The foregoing
notwithstanding, Employee may acquire, hold or retain equity
ownership of any publicly-held company, provided that such equity
ownership does not exceed five percent (5%) of the issued and
outstanding shares of voting stock of such company.
b. Upon Early Termination or Termination for Cause.
If Employee is terminated for cause (as defined in Section 10.a
hereof) or voluntarily resigns from employment hereunder prior
to the termination of the Initial Employment Term without the
consent of Employer, Employee shall not acquire, hold or retain
any interest (direct or indirect) in any business in the County
of San Diego, in the State of California, and in such other
locations where the Bank is then engaged in business from time to
time during the remainder of the Initial Employment Term that is
in competition with the business of the Bank until the date on
which the employees' employment was to naturally terminate
according to the terms hereof; provided, however, that in the
event that prior to any such voluntary resignation as aforesaid,
Employer has offered in writing to extend the term of this
Agreement for an additional year on the same terms and conditions
as set forth in this Agreement with compensation increased in
accordance with Section 4.a hereof, then Employee's obligation
under this Section 12.b shall be extended for an additional one
(1) year beyond the Initial Employment Term.
c. If any portion of this Section 12 is held to be
illegal, unenforceable, void, or voidable, the remainder shall
remain in full force and effect, and this Section 12 shall be
deemed altered and amended to the minimum extent necessary to
bring it within the legal requirements.
13. Unique Services. Employee hereby represents and
agrees that the services to be performed under the terms of this
Agreement are of a special, unique, unusual, extraordinary and
intellectual character that gives them a peculiar value, the loss
of which cannot be reasonable or adequately compensated in
damages in any action at law. Employee, therefore, expressly
agrees that Employer, in addition to any rights or remedies that
Employer might possess, shall be entitled to injunctive and other
equitable relief to prevent or remedy a breach of this Agreement
by Employee.
14. Confidential Information.
a. For purposes of this Agreement, "Confidential
Information: shall mean information or material proprietary to
Employer or Bank or designated as Confidential Information by
Employer or Bank and not generally known by non-Bank personnel
which Employee develops or of which Employee may obtain knowledge
or access through or as a result of Employee's employment with
the Employer or Bank (including information conceived,
originated, discovered, or developed, in whole or in part, by
Employee). The Confidential Information includes, but is not
limited to, the following types of information and other
information of a similar nature (whether or not reduced to
writing): Drawings, specifications, models, data, documentation,
diagrams, flow charts, research, development, procedures,
marketing techniques and materials, marketing and development
plans, customer lists, and names and other information related to
customers, pricing and loan policies, financial information and
projections customer loans and employee files. Confidential
Information also includes any information described above which
Employer obtains from another party, and which Employer treats as
proprietary or designates as Confidential Information, whether or
not owned or developed by Employer, For purposes of this Section
a., Employer and/or Bank shall mean the Bank, Financial or any of
their affiliates. INFORMATION PUBLICLY KNOWN THAT IS GENERALLY
EMPLOYED BY FINANCIAL INSTITUTIONS AT OR AFTER THE TIME EMPLOYEE
FIRST HEARS OF SUCH INFORMATION OR GENERIC INFORMATION, OR
GENERAL KNOWLEDGE WHICH EMPLOYEE WOULD HAVE LEARNED IN THE COURSE
OF SIMILAR EMPLOYMENT OR WORK ELSEWHERE SHALL NOT BE DEEMED PART
OF THE CONFIDENTIAL INFORMATION.
b. All notes, data, reference materials, sketches,
drawings, memoranda, documentation, and records in any way
incorporating or reflecting any of the Confidential Information
and all proprietary rights therein, including copy rights, shall
belong exclusively to Employer, and Employee agrees to turn over
all copies of such materials in Employee's possession or control
to Employer upon request or upon termination of Employee's
employment with Employer.
c. Employee agrees during his employment by Employer
and thereafter to hold in confidence and not to directly or
indirectly reveal, report, publish, disclose, or transfer any of
the Confidential Information to any person or entity, or utilize
any of the Confidential Information for any purpose, except in
the due performance of Employee's services for Employer.
d. Because of the unique nature of the Confidential
Information, Employee understands and agrees that Employer will
suffer irreparable harm in the event that Employee fails to
comply with any of his obligations under this Section 14, and
that monetary damages will be inadequate to compensate Employer
for such breach. Accordingly, Employee agrees that Employer
will, in addition to any other remedies available to them at law
or in equity, be entitled to injunctive relief to enforce the
terms of this Section 14.
15. Notices. Any notices to be given hereunder by
either party to the other shall be in writing and may be
transmitted by personal delivery or by certified mail, return
receipt requested. Mailed notices shall be addressed the parties
as follows:
If notice is to Financial, to:
Board of Directors
SDNB Financial Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
San Diego National Bank
If notice is to Bank, to:
Board of Directors
SDNB Financial Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
San Diego National Bank
If notice is to Employee, to:
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇: ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party may change its address by written notice in
accordance with this paragraph. Notices delivered personally
shall be deemed communicated as of the date of actual receipt;
mailed notices shall be deemed communicated as of forty-eight
(48) hours after the date of mailing.
16. Entire Agreement. This Agreement, in combination
with any collateral documents referred to herein, supersedes any
and all other agreements, either oral or in writing, between the
parties hereto with respect to the employment of Employee by the
Employer and contains all of the covenants and agreements between
the parties with respect to said employment.
17. Modifications. Any modification of this Agreement
shall be effective only if it is in writing and signed by the
parties hereto.
18. Effect of Waiver. The failure of either party to
insist on strict compliance with any of the terms, covenants or
conditions of this Agreement by the other party shall not be
deemed a waiver of that term, covenant, or condition, nor shall
any waiver or relinquishment of any right or power at any one
time or times be deemed a waiver or relinquishment of that right
or power for all or any other times.
19. Partial Invalidity. If any provision of this
Agreement is held be a court of competent jurisdiction to be
invalid, void, or unenforceable, the remaining provisions shall
nevertheless continue in full force without being impaired or
invalidated in any way, unless such partial invalidity materially
affects the intent of the parties as indicated herein.
20. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the state of
California applicable to contracts between residents of
California which are wholly executed and performed in California.
21. Assignability. The rights and duties of either
party hereunder shall not be assignable by either party, except
that this Agreement and all rights and obligations hereunder may
be assigned by Employer to, and be assumed by, any corporation or
other business entity which succeeds to all or substantially all
of the assets and business of Employer through merger,
consolidation acquisition of assets, or other corporate
reorganization. Subject to the provisions of the immediately
preceding sentence, this agreement shall be binding upon and
inure to the benefit of the heirs, executors and/or
administrators of Employee and to the successors and assigns of
Employer.
22. Arbitration. Any controversy or claim arising
out of or relating to this agreement, or the breach thereof,
shall be settled by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association (as such rules shall be in effect on the date a
demand for arbitrating is communicated from one party to the
other party hereto) in San Diego, California, and judgment upon
the award rendered by thereof. Employer shall bay the fees of
all arbitrators, witnesses and such other expenses as may be
generated by the arbitration's, including without limitation,
attorneys' fees of the Parties, unless in the event the
arbitration was instituted by Employee, the majority of the
Arbitrators conclude that said arbitration was not initiated in
good faith by Employee; under said circumstance, the arbitrators
shall be authorized to allocate costs and attorneys' fees as they
shell deem appropriate with due consideration to both the
relative financial abilities of the parties and the merits of the
positions of the parties with respect to the dispute underlying
the arbitration.
23. Headings. The headings used in this Agreement are
for convenience of reference only and are not part of this
Agreement and do not in any way limit or amplify the terms and
provisions hereof.
24. Further Acts and Documents. The parties hereto
agree to perform all further acts and execute all further
documents reasonably necessary to implement to purposes of this
Agreement.
Employer:
SDNB Financial Corp.
a California Corporation
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President President/CEO
Date: March 27, 1996 Date: March 27, 1996
EXECUTIVE EMPLOYMENT AGREEMENT
This is an Employment Agreement (hereinafter referred to as
this ("Agreement") made effective as of this 27th day of
March , 1996 by and between San Diego National Bank, ("Employer"
)and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (hereinafter referred to as "Employee").
RECITAL
This Agreement is made with reference to the following
facts:
A. Employee is currently employed as Executive Vice
President, San Diego National Bank, a national banking
association (hereinafter referred to as the "Bank").
B. Employer believes it to be in its best interest to have
Employee continue his/her employment with the Bank in such
capacities and in order to induce Employee to accept such
continued employment as Executive Vice President, Employer is
willing to enter into this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and for other good and valuable consideration,
Employer and Employee covenant and agree as follows:
1. Term of Employment. Employer hereby agrees to cause the
Bank to employ Employee and Employee hereby accepts employment
with the Bank for a period beginning on the effective date of
this Agreement as set forth hereinabove and continuing through
and until December 31, 1998 (hereinafter referred to as the
"Initial Employment Term"). In the event of any extension of
this Agreement for one or more consecutive one (1) year terms
upon the agreement of the parties hereto, or pursuant to the
provisions of Section 9 hereof, the terms of this Agreement shall
be deemed to continue in effect for the term of such extension
(hereinafter referred to as the "Extended Employment Term") (the
Initial Employment Term and the Extended Employment Term
hereinafter collectively referred to as the "Employment Term").
2. Duties of Employee. Employee shall serve as Executive
Vice President, throughout the Employment Term. Employee shall
have such duties and responsibilities as are presently set forth
in the Bylaws of the Bank and as are commensurate with such
position, as may be from time to time more particularly set
fourth by the Board of Directors of the Bank and Financial.
Employee shall devote such portion of his productive time and
attention to the business of the Bank as shall be reasonably
necessary to carry out his duties during the Employment Term.
Employee shall also serve as director of the Bank and Financial
and shall be required to serve as an officer and director of all
other corporations which are wholly-owned subsidiaries of
Financial which exist now or may exist during the Employment
Term. Subject to the provision of Section 12 hereof, this
Agreement shall not be interpreted to prohibit Employee from
making passive personal investments or conducting private
business affairs if such activities do not materially interfere
with the services required under this Agreement.
3. Indemnification. Employer shall indemnify and hold
Employee harmless from all losses, costs, damages, liability,
therefor, charges, claims, demands, attorneys' fees and/or
expenses, actions and causes of action of any nature or sort,
liquidated or unliquidated, past, present and future, of
whatsoever kind or character which shall or may at any time
incurred, suffered or sustained by Employee arising from the
discharge of his duties on behalf of the Bank and/or Financial
and/or other subsidiaries of Financial for which Employee
provides services.
4. Compensation. As full compensation for the services to
be performed hereunder, Employee shall receive the following:
a. Basic Salary Subject to approved annual
increases as hereinafter provided, basic salary at the rate of
One Hundred Five Thousand Nine Hundred Thirty Dollars ,
($105,930) per year to be paid in accordance with the payroll
schedule established by the Bank's Board of Directors for all
Bank employees as in effect from time to time. The basic annual
salary set forth in this paragraph may be adjusted on January 1
or each year of the Employment Term at the discretion of the
Employer's Board of Directors for all Bank employees as in effect
from time to time. The basic annual salary set forth in this
paragraph shall be adjusted on January 1 of each year of the
Employment Term at the discretion of the Employer's Board of
Directors, but in no event shall the adjusted amount less than
the amount of Employee's basic annual salary for the preceding
year.
b. Bonuses and Deferred Savings Plan. Employee shall
be entitled to receive such other compensation as may be
determined by the Employer's Board of Directors to be
appropriate, in its sole discretion, including without limitation
any amounts payable to Employee by participation in the Bank's
Bonus Program and Deferred Savings Plan in accordance with the
terms and conditions of said plans as in effect during the
Employment Term. Employer shall not reduce during the Employment
Term the proportionate annual share of the total amount of said
Bonus Program and Deferred Savings Plan which Employee is
eligible to receive based upon said Program and Plan as presently
in effect as of the date of this Agreement. Further, if said
Program and/or Plan are eliminated by Employer or Bank, Employee
shall nevertheless continue to receive during the Employment Term
an annual share of the Bank's profits which Employee last
received pursuant to said program and/or Plan.
5. Tax Withholding. Employer shall have the right to
deduct or withhold from the compensation due to Employee
hereunder any and all sums required for any and all federal,
social security, state and local taxes now applicable or that may
be enacted and become applicable in the future.
6. Employee Benefits.
a. Vacation Time. Employee shall be entitled to
vacation time as set forth in the Bank's policies each calendar
year during the Employment Term without loss of compensation.
One increment of such annual vacation time shall be taken by
Employee for a period of not less than two (2) consecutive weeks.
In the event that Employee does not for any reason take the total
amount of vacation time authorized herein during any year, the
amount of time not taken in said year shall accumulate, and be
available as additional vacation time in subsequent years;
however, Employee shall not be permitted at any time to
accumulate vacation time in excess of the amount of vacation time
authorized for Employee during a two-year period.
b. Use of Automobile. Employer shall provide Employee
with the use of an "executive class" automobile throughout the
Employment Term, or alternatively, at the discretion of Employer,
an automobile allowance of Six Hundred ($600) Dollars per month.
In addition, whether Employer provides Employee with an
automobile or with an automobile allowance, Employer shall pay or
reimburse for all operating expense of the automobile used by
Employee, including a reasonable gasoline allowance and shall
further provide and maintain liability insurance on such
automobile, with coverage in amounts to be determined by the
Employer's Board of Directors, but in any event not less than the
minimum liability coverage required by California law. Employee
shall be required to maintain adequate records of all business
mileage incurred an all automobile operating expenses, such
records to be maintained in compliance with IRS record-keeping
guidelines then in effect.
c. Seminars. Employer shall reimburse Employee for
all costs and expenses, including without limitation registration
fees, transportation costs, meals and lodging, incurred by
Employee in connection with Employee's attendance at all
professional seminars relating to the financial services industry
for which Employee's attendance would be of benefit to Employer.
d. Club. Employer shall pay all ongoing dues related
to employee's membership in one "country-club" type club selected
by Employee and subject to the express approval of the Employer's
Board of Directors, shall pay all membership and/or initiation
fees connected with said membership.
e. Disability Insurance. Employer shall pay all
costs and expenses, including without limitation premiums, to
provide disability insurance coverage for Employee, which
coverage shall be in an appropriate and customary amount based
upon Employee's position and salary hereunder and subject to
approval of medical records by the insurer.
f. Additional Benefits. Employee shall be entitled to
receive the greater of: (1) all employment benefits made
available to other officers of the Bank and its affiliates and
commensurate with Employee's position and title with the Bank,
and (2) all employment benefits currently received by Employee as
of the date of this Agreement. Such benefits shall include, but
are not limited to, such health insurance, life insurance, sick
leave, pension, and retirement plans as are adopted from time to
time by the Bank. In the event that any benefit plan or plans
adopted by the Bank or all of its employees conflicts with or
overlaps any specific benefit set forth in this paragraph 6,
Employee shall be entitled to whichever benefit is the greater of
the two...
7. Life Insurance. In addition to any life insurance
policies paid for by Employer pursuant to Section 6.c, in which
Employee is named as its insured and in discretion, may purchase
such life insurance policies as it deems necessary or
appropriate, naming Employee as the insured and Employer as
beneficiary. Employee hereby agrees to submit, at employer's
cost, to any reasonable medical examination required for the
purchase of such insurance.
8. Expenses. Employee shall be reimbursed for all
reasonable expenses incurred by his pursuant to he performance of
his duties and responsibilities hereunder. Employee shall keep
complete and accurate records, including but not limited to proof
of payment of all such expenses, so that he may fully account to
the Employer if so requested.
9. Extension of Term Upon Changing Control. In the event
that there is a change in control of the Bank and/or Financial,
as that term is defined in 12 U.S.C. Section 1817 (Change in Bank
Control Act of 1978), whether by merger, acquisition, "friendly"
or hostile" "takeover" or otherwise, this Agreement shall be
deemed extended for three years from the date of said change in
control. During said period of extension, Employee shall be paid
his compensation then applicable hereunder, and shall continue
his participation in the Bank's Bonus Sharing Program and
Deferred Savings Plan in accordance with Section 4.b hereof, and
in no case shall Employer have any right to terminate the
employment of Employee hereunder, except "for cause," as said
term is defined in Section 10.a hereof. Further, in said event,
Employee shall receive during the Extended Employment term a
minimum of a ten percent (10%) increase in salary per annum each
January 1 subsequent to the date of said change in control.
10. Termination of Agreement.
a. Termination for Cause. Employer may terminate
this Agreement without notice for "cause." For the purposes of
this Agreement, "Cause" shall be defined as willful misconduct or
willful dishonesty of Employee in his capacity as Executive Vice
President of Bank and/or Financial, or willful material breach or
habitual neglect of the duties which Employee is required to
perform under the terms of this agreement.
b. Effect of Termination. In the event of termination
of Employee for cause as set froth in Section 10.a, and assuming
that Employer is not in material default hereunder, all future
bonuses or other salaries payable to or claimed by Employee are
waived, and any additional salary or bonus shall be paid only in
the sole and absolute discretion of Employer. In the event
Employee voluntarily terminates his employment hereunder,
Employee shall be entitled to a pro rata share of bonus
compensation based upon the formula contained in Section 10.c
hereof. Nothing in this Section 10 shall affect the rights of
the parties under Section 12 hereof.
c. Disability and Death. If, during the Employment
Term Employee should die or suffer any physical or mental illness
that renders him incapable of fulfilling his obligations under
this Agreement, and such incapacity exists or may reasonably be
expected to exist for more than one hundred and fifty (150)
consecutive days, Employer may, upon forty-five (45) days written
notice to Employee, terminate this Agreement. The determination
of Employer that Employee is incapable of fulfilling his
obligations under this Agreement, so long as such determination
is made in good faith and is supported by a reasonable medical
opinion, shall be final and binding. In the event of termination
under this Section 10.c, Employee, or his estate, shall be
entitled (I) to an amount equal to twelve (12) months' salary
payable forthwith, and (ii) to a pro rata share of bonus
compensation based upon the ratio of the number of days of the
portion of the bonus term then in effect prior to Employee's
death or disability, as the case may be, to the number of days of
the full bonus term, payable at the time when said bonus is
payable to all employees, and (iii) to any other accrued
compensation, plus such additional benefits, if any, as may be
approved by Employer's Board of Directors. Employee, or his
estate, shall, upon termination under the terms of this Section
10.c, be further entitled to additional pro rata compensation
based upon the ratio of the number of accrued vacation days, if
any, not taken by Employee during the year, as defined for the
purposes of vacation, in which Employee was so terminated, to 365
days.
d. Communication of Termination. Any termination by
Employer of Employee shall be communicated by written notice of
termination which shall indicate the specific termination
provision of this Agreement relied upon by Employer, and shall
set forth in reasonable detail the facts and circumstances
claimed to provide a basis for such termination.
11. Location. Employee shall not be required to move from
or perform his duties hereunder in any geographical area other
than the San Diego County area.
12. Non-Competition.
a. While Employed. During the Employment Term,
Employee shall not, directly or indirectly, either as an
employee, employer, consultant, agent, principal partner,
stockholder, corporate officer, director, or in any other
individual or representative capacity, engage or participate in
or acquire, hold, or retain any interest in any business of the
Bank in any location, unless such participation or interest is
fully disclosed to the Bank and Financial Corp. approval by a
majority of the Board of Directors of each. The foregoing
notwithstanding, Employee may acquire, hold or retain equity
ownership of any publicly-held company, provided that such equity
ownership does not exceed five percent (5%) of the issued and
outstanding shares of voting stock of such company.
b. Upon Early Termination or Termination for Cause.
If Employee is terminated for cause (as defined in Section 10.a
hereof) or voluntarily resigns from employment hereunder prior
to the termination of the Initial Employment Term without the
consent of Employer, Employee shall not acquire, hold or retain
any interest (direct or indirect) in any business in the County
of San Diego, in the State of California, and in such other
locations where the Bank is then engaged in business from time to
time during the remainder of the Initial Employment Term that is
in competition with the business of the Bank until the date on
which the employees' employment was to naturally terminate
according to the terms hereof; provided, however, that in the
event that prior to any such voluntary resignation as aforesaid,
Employer has offered in writing to extend the term of this
Agreement for an additional year on the same terms and conditions
as set forth in this Agreement with compensation increased in
accordance with Section 4.a hereof, then Employee's obligation
under this Section 12.b shall be extended for an additional one
(1) year beyond the Initial Employment Term.
c. If any portion of this Section 12 is held to be
illegal, unenforceable, void, or voidable, the remainder shall
remain in full force and effect, and this Section 12 shall be
deemed altered and amended to the minimum extent necessary to
bring it within the legal requirements.
13. Unique Services. Employee hereby represents and
agrees that the services to be performed under the terms of this
Agreement are of a special, unique, unusual, extraordinary and
intellectual character that gives them a peculiar value, the loss
of which cannot be reasonable or adequately compensated in
damages in any action at law. Employee, therefore, expressly
agrees that Employer, in addition to any rights or remedies that
Employer might possess, shall be entitled to injunctive and other
equitable relief to prevent or remedy a breach of this Agreement
by Employee.
14. Confidential Information.
a. For purposes of this Agreement, "Confidential
Information: shall mean information or material proprietary to
Employer or Bank or designated as Confidential Information by
Employer or Bank and not generally known by non-Bank personnel
which Employee develops or of which Employee may obtain knowledge
or access through or as a result of Employee's employment with
the Employer or Bank (including information conceived,
originated, discovered, or developed, in whole or in part, by
Employee). The Confidential Information includes, but is not
limited to, the following types of information and other
information of a similar nature (whether or not reduced to
writing): Drawings, specifications, models, data, documentation,
diagrams, flow charts, research, development, procedures,
marketing techniques and materials, marketing and development
plans, customer lists, and names and other information related to
customers, pricing and loan policies, financial information and
projections customer loans and employee files. Confidential
Information also includes any information described above which
Employer obtains from another party, and which Employer treats as
proprietary or designates as Confidential Information, whether or
not owned or developed by Employer, For purposes of this Section
a., Employer and/or Bank shall mean the Bank, Financial or any of
their affiliates. INFORMATION PUBLICLY KNOWN THAT IS GENERALLY
EMPLOYED BY FINANCIAL INSTITUTIONS AT OR AFTER THE TIME EMPLOYEE
FIRST HEARS OF SUCH INFORMATION OR GENERIC INFORMATION, OR
GENERAL KNOWLEDGE WHICH EMPLOYEE WOULD HAVE LEARNED IN THE COURSE
OF SIMILAR EMPLOYMENT OR WORK ELSEWHERE SHALL NOT BE DEEMED PART
OF THE CONFIDENTIAL INFORMATION.
b. All notes, data, reference materials, sketches,
drawings, memoranda, documentation, and records in any way
incorporating or reflecting any of the Confidential Information
and all proprietary rights therein, including copy rights, shall
belong exclusively to Employer, and Employee agrees to turn over
all copies of such materials in Employee's possession or control
to Employer upon request or upon termination of Employee's
employment with Employer.
c. Employee agrees during his employment by Employer
and thereafter to hold in confidence and not to directly or
indirectly reveal, report, publish, disclose, or transfer any of
the Confidential Information to any person or entity, or utilize
any of the Confidential Information for any purpose, except in
the due performance of Employee's services for Employer.
d. Because of the unique nature of the Confidential
Information, Employee understands and agrees that Employer will
suffer irreparable harm in the event that Employee fails to
comply with any of his obligations under this Section 14, and
that monetary damages will be inadequate to compensate Employer
for such breach. Accordingly, Employee agrees that Employer
will, in addition to any other remedies available to them at law
or in equity, be entitled to injunctive relief to enforce the
terms of this Section 14.
15. Notices. Any notices to be given hereunder by
either party to the other shall be in writing and may be
transmitted by personal delivery or by certified mail, return
receipt requested. Mailed notices shall be addressed the parties
as follows:
If notice is to Financial, to:
Board of Directors
SDNB Financial Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
San Diego National Bank
If notice is to Bank, to:
Board of Directors
SDNB Financial Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
San Diego National Bank
If notice is to Employee, to:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇/▇▇▇▇▇: ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party may change its address by written notice in
accordance with this paragraph. Notices delivered personally
shall be deemed communicated as of the date of actual receipt;
mailed notices shall be deemed communicated as of forty-eight
(48) hours after the date of mailing.
16. Entire Agreement. This Agreement, in combination
with any collateral documents referred to herein, supersedes any
and all other agreements, either oral or in writing, between the
parties hereto with respect to the employment of Employee by the
Employer and contains all of the covenants and agreements between
the parties with respect to said employment.
17. Modifications. Any modification of this Agreement
shall be effective only if it is in writing and signed by the
parties hereto.
18. Effect of Waiver. The failure of either party to
insist on strict compliance with any of the terms, covenants or
conditions of this Agreement by the other party shall not be
deemed a waiver of that term, covenant, or condition, nor shall
any waiver or relinquishment of any right or power at any one
time or times be deemed a waiver or relinquishment of that right
or power for all or any other times.
19. Partial Invalidity. If any provision of this
Agreement is held be a court of competent jurisdiction to be
invalid, void, or unenforceable, the remaining provisions shall
nevertheless continue in full force without being impaired or
invalidated in any way, unless such partial invalidity materially
affects the intent of the parties as indicated herein.
20. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the state of
California applicable to contracts between residents of
California which are wholly executed and performed in California.
21. Assignability. The rights and duties of either
party hereunder shall not be assignable by either party, except
that this Agreement and all rights and obligations hereunder may
be assigned by Employer to, and be assumed by, any corporation or
other business entity which succeeds to all or substantially all
of the assets and business of Employer through merger,
consolidation acquisition of assets, or other corporate
reorganization. Subject to the provisions of the immediately
preceding sentence, this agreement shall be binding upon and
inure to the benefit of the heirs, executors and/or
administrators of Employee and to the successors and assigns of
Employer.
22. Arbitration. Any controversy or claim arising
out of or relating to this agreement, or the breach thereof,
shall be settled by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association (as such rules shall be in effect on the date a
demand for arbitrating is communicated from one party to the
other party hereto) in San Diego, California, and judgment upon
the award rendered by thereof. Employer shall bay the fees of
all arbitrators, witnesses and such other expenses as may be
generated by the arbitration's, including without limitation,
attorneys' fees of the Parties, unless in the event the
arbitration was instituted by Employee, the majority of the
Arbitrators conclude that said arbitration was not initiated in
good faith by Employee; under said circumstance, the arbitrators
shall be authorized to allocate costs and attorneys' fees as they
shell deem appropriate with due consideration to both the
relative financial abilities of the parties and the merits of the
positions of the parties with respect to the dispute underlying
the arbitration.
23. Headings. The headings used in this Agreement are
for convenience of reference only and are not part of this
Agreement and do not in any way limit or amplify the terms and
provisions hereof.
24. Further Acts and Documents. The parties hereto
agree to perform all further acts and execute all further
documents reasonably necessary to implement to purposes of this
Agreement.
Employer:
SDNB Financial Corp.
a California Corporation
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President President/CEO
Date: March 27, 1996 Date: March 27, 1996
EXECUTIVE EMPLOYMENT AGREEMENT
This is an Employment Agreement (hereinafter referred to as
this ("Agreement") made effective as of this 27th day of
March , 1996 by and between San Diego National Bank, ("Employer"
)and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (hereinafter referred to as "Employee").
RECITAL
This Agreement is made with reference to the following
facts:
A. Employee is currently employed as Senior Vice President
and Cheif Financial Officer, San Diego National Bank, a national
banking association (hereinafter referred to as the "Bank").
B. Employer believes it to be in its best interest to have
Employee continue his/her employment with the Bank in such
capacities and in order to induce Employee to accept such
continued employment as Senior Vice President and Chief Finanical
Officer, Employer is willing to enter into this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and for other good and valuable consideration,
Employer and Employee covenant and agree as follows:
1. Term of Employment. Employer hereby agrees to cause the
Bank to employ Employee and Employee hereby accepts employment
with the Bank for a period beginning on the effective date of
this Agreement as set forth hereinabove and continuing through
and until December 31, 1998 (hereinafter referred to as the
"Initial Employment Term"). In the event of any extension of
this Agreement for one or more consecutive one (1) year terms
upon the agreement of the parties hereto, or pursuant to the
provisions of Section 9 hereof, the terms of this Agreement shall
be deemed to continue in effect for the term of such extension
(hereinafter referred to as the "Extended Employment Term") (the
Initial Employment Term and the Extended Employment Term
hereinafter collectively referred to as the "Employment Term").
2. Duties of Employee. Employee shall serve as Senior Vice
President and Chief Financial Officer throughout the Employment
Term. Employee shall have such duties and responsibilities as
are presently set forth in the Bylaws of the Bank and as are
commensurate with such position, as may be from time to time more
particularly set fourth by the Board of Directors of the Bank and
Financial. Employee shall devote such portion of his productive
time and attention to the business of the Bank as shall be
reasonably necessary to carry out his duties during the
Employment Term. Employee shall also serve as director of the
Bank and Financial and shall be required to serve as an officer
and director of all other corporations which are wholly-owned
subsidiaries of Financial which exist now or may exist during the
Employment Term. Subject to the provision of Section 12 hereof,
this Agreement shall not be interpreted to prohibit Employee from
making passive personal investments or conducting private
business affairs if such activities do not materially interfere
with the services required under this Agreement.
3. Indemnification. Employer shall indemnify and hold
Employee harmless from all losses, costs, damages, liability,
therefor, charges, claims, demands, attorneys' fees and/or
expenses, actions and causes of action of any nature or sort,
liquidated or unliquidated, past, present and future, of
whatsoever kind or character which shall or may at any time
incurred, suffered or sustained by Employee arising from the
discharge of his duties on behalf of the Bank and/or Financial
and/or other subsidiaries of Financial for which Employee
provides services.
4. Compensation. As full compensation for the services to
be performed hereunder, Employee shall receive the following:
a. Basic Salary Subject to approved annual
increases as hereinafter provided, basic salary at the rate of
One Hundred One Thousand Six Hundred Fifty Eight ($101,658) per
year to be paid in accordance with the payroll schedule
established by the Bank's Board of Directors for all Bank
employees as in effect from time to time. The basic annual
salary set forth in this paragraph may be adjusted on January 1
or each year of the Employment Term at the discretion of the
Employer's Board of Directors for all Bank employees as in effect
from time to time. The basic annual salary set forth in this
paragraph shall be adjusted on January 1 of each year of the
Employment Term at the discretion of the Employer's Board of
Directors, but in no event shall the adjusted amount less than
the amount of Employee's basic annual salary for the preceding
year.
b. Bonuses and Deferred Savings Plan. Employee shall
be entitled to receive such other compensation as may be
determined by the Employer's Board of Directors to be
appropriate, in its sole discretion, including without limitation
any amounts payable to Employee by participation in the Bank's
Bonus Program and Deferred Savings Plan in accordance with the
terms and conditions of said plans as in effect during the
Employment Term. Employer shall not reduce during the Employment
Term the proportionate annual share of the total amount of said
Bonus Program and Deferred Savings Plan which Employee is
eligible to receive based upon said Program and Plan as presently
in effect as of the date of this Agreement. Further, if said
Program and/or Plan are eliminated by Employer or Bank, Employee
shall nevertheless continue to receive during the Employment Term
an annual share of the Bank's profits which Employee last
received pursuant to said program and/or Plan.
5. Tax Withholding. Employer shall have the right to
deduct or withhold from the compensation due to Employee
hereunder any and all sums required for any and all federal,
social security, state and local taxes now applicable or that may
be enacted and become applicable in the future.
6. Employee Benefits.
a. Vacation Time. Employee shall be entitled to
vacation time as set forth in the Bank's policies each calendar
year during the Employment Term without loss of compensation.
One increment of such annual vacation time shall be taken by
Employee for a period of not less than two (2) consecutive weeks.
In the event that Employee does not for any reason take the total
amount of vacation time authorized herein during any year, the
amount of time not taken in said year shall accumulate, and be
available as additional vacation time in subsequent years;
however, Employee shall not be permitted at any time to
accumulate vacation time in excess of the amount of vacation time
authorized for Employee during a two-year period.
b. Use of Automobile. Employer shall provide Employee
with the use of an "executive class" automobile throughout the
Employment Term, or alternatively, at the discretion of Employer,
an automobile allowance of Six Hundred ($600) Dollars per month.
In addition, whether Employer provides Employee with an
automobile or with an automobile allowance, Employer shall pay or
reimburse for all operating expense of the automobile used by
Employee, including a reasonable gasoline allowance and shall
further provide and maintain liability insurance on such
automobile, with coverage in amounts to be determined by the
Employer's Board of Directors, but in any event not less than the
minimum liability coverage required by California law. Employee
shall be required to maintain adequate records of all business
mileage incurred an all automobile operating expenses, such
records to be maintained in compliance with IRS record-keeping
guidelines then in effect.
c. Seminars. Employer shall reimburse Employee for
all costs and expenses, including without limitation registration
fees, transportation costs, meals and lodging, incurred by
Employee in connection with Employee's attendance at all
professional seminars relating to the financial services industry
for which Employee's attendance would be of benefit to Employer.
d. Club. Employer shall pay all ongoing dues related
to employee's membership in one "country-club" type club selected
by Employee and subject to the express approval of the Employer's
Board of Directors, shall pay all membership and/or initiation
fees connected with said membership.
e. Disability Insurance. Employer shall pay all
costs and expenses, including without limitation premiums, to
provide disability insurance coverage for Employee, which
coverage shall be in an appropriate and customary amount based
upon Employee's position and salary hereunder and subject to
approval of medical records by the insurer.
f. Additional Benefits. Employee shall be entitled to
receive the greater of: (1) all employment benefits made
available to other officers of the Bank and its affiliates and
commensurate with Employee's position and title with the Bank,
and (2) all employment benefits currently received by Employee as
of the date of this Agreement. Such benefits shall include, but
are not limited to, such health insurance, life insurance, sick
leave, pension, and retirement plans as are adopted from time to
time by the Bank. In the event that any benefit plan or plans
adopted by the Bank or all of its employees conflicts with or
overlaps any specific benefit set forth in this paragraph 6,
Employee shall be entitled to whichever benefit is the greater of
the two...
7. Life Insurance. In addition to any life insurance
policies paid for by Employer pursuant to Section 6.c, in which
Employee is named as its insured and in discretion, may purchase
such life insurance policies as it deems necessary or
appropriate, naming Employee as the insured and Employer as
beneficiary. Employee hereby agrees to submit, at employer's
cost, to any reasonable medical examination required for the
purchase of such insurance.
8. Expenses. Employee shall be reimbursed for all
reasonable expenses incurred by his pursuant to he performance of
his duties and responsibilities hereunder. Employee shall keep
complete and accurate records, including but not limited to proof
of payment of all such expenses, so that he may fully account to
the Employer if so requested.
9. Extension of Term Upon Changing Control. In the event
that there is a change in control of the Bank and/or Financial,
as that term is defined in 12 U.S.C. Section 1817 (Change in Bank
Control Act of 1978), whether by merger, acquisition, "friendly"
or hostile" "takeover" or otherwise, this Agreement shall be
deemed extended for three years from the date of said change in
control. During said period of extension, Employee shall be paid
his compensation then applicable hereunder, and shall continue
his participation in the Bank's Bonus Sharing Program and
Deferred Savings Plan in accordance with Section 4.b hereof, and
in no case shall Employer have any right to terminate the
employment of Employee hereunder, except "for cause," as said
term is defined in Section 10.a hereof. Further, in said event,
Employee shall receive during the Extended Employment term a
minimum of a ten percent (10%) increase in salary per annum each
January 1 subsequent to the date of said change in control.
10. Termination of Agreement.
a. Termination for Cause. Employer may terminate
this Agreement without notice for "cause." For the purposes of
this Agreement, "Cause" shall be defined as willful misconduct or
willful dishonesty of Employee in his capacity as Senior Vice
President and Chief Financial Officer of Bank and/or Financial,
or willful material breach or habitual neglect of the duties
which Employee is required to perform under the terms of this
agreement.
b. Effect of Termination. In the event of termination
of Employee for cause as set froth in Section 10.a, and assuming
that Employer is not in material default hereunder, all future
bonuses or other salaries payable to or claimed by Employee are
waived, and any additional salary or bonus shall be paid only in
the sole and absolute discretion of Employer. In the event
Employee voluntarily terminates his employment hereunder,
Employee shall be entitled to a pro rata share of bonus
compensation based upon the formula contained in Section 10.c
hereof. Nothing in this Section 10 shall affect the rights of
the parties under Section 12 hereof.
c. Disability and Death. If, during the Employment
Term Employee should die or suffer any physical or mental illness
that renders him incapable of fulfilling his obligations under
this Agreement, and such incapacity exists or may reasonably be
expected to exist for more than one hundred and fifty (150)
consecutive days, Employer may, upon forty-five (45) days written
notice to Employee, terminate this Agreement. The determination
of Employer that Employee is incapable of fulfilling his
obligations under this Agreement, so long as such determination
is made in good faith and is supported by a reasonable medical
opinion, shall be final and binding. In the event of termination
under this Section 10.c, Employee, or his estate, shall be
entitled (I) to an amount equal to twelve (12) months' salary
payable forthwith, and (ii) to a pro rata share of bonus
compensation based upon the ratio of the number of days of the
portion of the bonus term then in effect prior to Employee's
death or disability, as the case may be, to the number of days of
the full bonus term, payable at the time when said bonus is
payable to all employees, and (iii) to any other accrued
compensation, plus such additional benefits, if any, as may be
approved by Employer's Board of Directors. Employee, or his
estate, shall, upon termination under the terms of this Section
10.c, be further entitled to additional pro rata compensation
based upon the ratio of the number of accrued vacation days, if
any, not taken by Employee during the year, as defined for the
purposes of vacation, in which Employee was so terminated, to 365
days.
d. Communication of Termination. Any termination by
Employer of Employee shall be communicated by written notice of
termination which shall indicate the specific termination
provision of this Agreement relied upon by Employer, and shall
set forth in reasonable detail the facts and circumstances
claimed to provide a basis for such termination.
11. Location. Employee shall not be required to move from
or perform his duties hereunder in any geographical area other
than the San Diego County area.
12. Non-Competition.
a. While Employed. During the Employment Term,
Employee shall not, directly or indirectly, either as an
employee, employer, consultant, agent, principal partner,
stockholder, corporate officer, director, or in any other
individual or representative capacity, engage or participate in
or acquire, hold, or retain any interest in any business of the
Bank in any location, unless such participation or interest is
fully disclosed to the Bank and Financial Corp. approval by a
majority of the Board of Directors of each. The foregoing
notwithstanding, Employee may acquire, hold or retain equity
ownership of any publicly-held company, provided that such equity
ownership does not exceed five percent (5%) of the issued and
outstanding shares of voting stock of such company.
b. Upon Early Termination or Termination for Cause.
If Employee is terminated for cause (as defined in Section 10.a
hereof) or voluntarily resigns from employment hereunder prior
to the termination of the Initial Employment Term without the
consent of Employer, Employee shall not acquire, hold or retain
any interest (direct or indirect) in any business in the County
of San Diego, in the State of California, and in such other
locations where the Bank is then engaged in business from time to
time during the remainder of the Initial Employment Term that is
in competition with the business of the Bank until the date on
which the employees' employment was to naturally terminate
according to the terms hereof; provided, however, that in the
event that prior to any such voluntary resignation as aforesaid,
Employer has offered in writing to extend the term of this
Agreement for an additional year on the same terms and conditions
as set forth in this Agreement with compensation increased in
accordance with Section 4.a hereof, then Employee's obligation
under this Section 12.b shall be extended for an additional one
(1) year beyond the Initial Employment Term.
c. If any portion of this Section 12 is held to be
illegal, unenforceable, void, or voidable, the remainder shall
remain in full force and effect, and this Section 12 shall be
deemed altered and amended to the minimum extent necessary to
bring it within the legal requirements.
13. Unique Services. Employee hereby represents and
agrees that the services to be performed under the terms of this
Agreement are of a special, unique, unusual, extraordinary and
intellectual character that gives them a peculiar value, the loss
of which cannot be reasonable or adequately compensated in
damages in any action at law. Employee, therefore, expressly
agrees that Employer, in addition to any rights or remedies that
Employer might possess, shall be entitled to injunctive and other
equitable relief to prevent or remedy a breach of this Agreement
by Employee.
14. Confidential Information.
a. For purposes of this Agreement, "Confidential
Information: shall mean information or material proprietary to
Employer or Bank or designated as Confidential Information by
Employer or Bank and not generally known by non-Bank personnel
which Employee develops or of which Employee may obtain knowledge
or access through or as a result of Employee's employment with
the Employer or Bank (including information conceived,
originated, discovered, or developed, in whole or in part, by
Employee). The Confidential Information includes, but is not
limited to, the following types of information and other
information of a similar nature (whether or not reduced to
writing): Drawings, specifications, models, data, documentation,
diagrams, flow charts, research, development, procedures,
marketing techniques and materials, marketing and development
plans, customer lists, and names and other information related to
customers, pricing and loan policies, financial information and
projections customer loans and employee files. Confidential
Information also includes any information described above which
Employer obtains from another party, and which Employer treats as
proprietary or designates as Confidential Information, whether or
not owned or developed by Employer, For purposes of this Section
a., Employer and/or Bank shall mean the Bank, Financial or any of
their affiliates. INFORMATION PUBLICLY KNOWN THAT IS GENERALLY
EMPLOYED BY FINANCIAL INSTITUTIONS AT OR AFTER THE TIME EMPLOYEE
FIRST HEARS OF SUCH INFORMATION OR GENERIC INFORMATION, OR
GENERAL KNOWLEDGE WHICH EMPLOYEE WOULD HAVE LEARNED IN THE COURSE
OF SIMILAR EMPLOYMENT OR WORK ELSEWHERE SHALL NOT BE DEEMED PART
OF THE CONFIDENTIAL INFORMATION.
b. All notes, data, reference materials, sketches,
drawings, memoranda, documentation, and records in any way
incorporating or reflecting any of the Confidential Information
and all proprietary rights therein, including copy rights, shall
belong exclusively to Employer, and Employee agrees to turn over
all copies of such materials in Employee's possession or control
to Employer upon request or upon termination of Employee's
employment with Employer.
c. Employee agrees during his employment by Employer
and thereafter to hold in confidence and not to directly or
indirectly reveal, report, publish, disclose, or transfer any of
the Confidential Information to any person or entity, or utilize
any of the Confidential Information for any purpose, except in
the due performance of Employee's services for Employer.
d. Because of the unique nature of the Confidential
Information, Employee understands and agrees that Employer will
suffer irreparable harm in the event that Employee fails to
comply with any of his obligations under this Section 14, and
that monetary damages will be inadequate to compensate Employer
for such breach. Accordingly, Employee agrees that Employer
will, in addition to any other remedies available to them at law
or in equity, be entitled to injunctive relief to enforce the
terms of this Section 14.
15. Notices. Any notices to be given hereunder by
either party to the other shall be in writing and may be
transmitted by personal delivery or by certified mail, return
receipt requested. Mailed notices shall be addressed the parties
as follows:
If notice is to Financial, to:
Board of Directors
SDNB Financial Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
San Diego National Bank
If notice is to Bank, to:
Board of Directors
SDNB Financial Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
San Diego National Bank
If notice is to Employee, to:
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇: ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party may change its address by written notice in
accordance with this paragraph. Notices delivered personally
shall be deemed communicated as of the date of actual receipt;
mailed notices shall be deemed communicated as of forty-eight
(48) hours after the date of mailing.
16. Entire Agreement. This Agreement, in combination
with any collateral documents referred to herein, supersedes any
and all other agreements, either oral or in writing, between the
parties hereto with respect to the employment of Employee by the
Employer and contains all of the covenants and agreements between
the parties with respect to said employment.
17. Modifications. Any modification of this Agreement
shall be effective only if it is in writing and signed by the
parties hereto.
18. Effect of Waiver. The failure of either party to
insist on strict compliance with any of the terms, covenants or
conditions of this Agreement by the other party shall not be
deemed a waiver of that term, covenant, or condition, nor shall
any waiver or relinquishment of any right or power at any one
time or times be deemed a waiver or relinquishment of that right
or power for all or any other times.
19. Partial Invalidity. If any provision of this
Agreement is held be a court of competent jurisdiction to be
invalid, void, or unenforceable, the remaining provisions shall
nevertheless continue in full force without being impaired or
invalidated in any way, unless such partial invalidity materially
affects the intent of the parties as indicated herein.
20. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the state of
California applicable to contracts between residents of
California which are wholly executed and performed in California.
21. Assignability. The rights and duties of either
party hereunder shall not be assignable by either party, except
that this Agreement and all rights and obligations hereunder may
be assigned by Employer to, and be assumed by, any corporation or
other business entity which succeeds to all or substantially all
of the assets and business of Employer through merger,
consolidation acquisition of assets, or other corporate
reorganization. Subject to the provisions of the immediately
preceding sentence, this agreement shall be binding upon and
inure to the benefit of the heirs, executors and/or
administrators of Employee and to the successors and assigns of
Employer.
22. Arbitration. Any controversy or claim arising
out of or relating to this agreement, or the breach thereof,
shall be settled by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association (as such rules shall be in effect on the date a
demand for arbitrating is communicated from one party to the
other party hereto) in San Diego, California, and judgment upon
the award rendered by thereof. Employer shall bay the fees of
all arbitrators, witnesses and such other expenses as may be
generated by the arbitration's, including without limitation,
attorneys' fees of the Parties, unless in the event the
arbitration was instituted by Employee, the majority of the
Arbitrators conclude that said arbitration was not initiated in
good faith by Employee; under said circumstance, the arbitrators
shall be authorized to allocate costs and attorneys' fees as they
shell deem appropriate with due consideration to both the
relative financial abilities of the parties and the merits of the
positions of the parties with respect to the dispute underlying
the arbitration.
23. Headings. The headings used in this Agreement are
for convenience of reference only and are not part of this
Agreement and do not in any way limit or amplify the terms and
provisions hereof.
24. Further Acts and Documents. The parties hereto
agree to perform all further acts and execute all further
documents reasonably necessary to implement to purposes of this
Agreement.
Employer:
SDNB Financial Corp.
a California Corporation
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇. Vice President/ President/CEO
Chief Financial Officer
Date: March 27, 1996 Date: March 27, 1996