POST-EMPLOYMENT
CONSULTING AGREEMENT
THIS AGREEMENT made effective as of the 6th day of January,
1997 (the "Effective Date"), by and between California Federal Bank, F.S.B.
(hereinafter referred to as "the Bank," which term shall for all purposes
include its successors and assigns) and the undersigned Consultant (the
"Consultant").
W I T N E S S E T H:
WHEREAS, the Bank is engaged in the depository, lending and
financial services businesses (collectively the "Business"); and
WHEREAS, Consultant has expertise, experience and capability
in the Business, including having served as an executive officer of the Bank;
and
WHEREAS, the Bank wishes to retain the services of the
Consultant, and the Consultant wishes to perform services for the Bank, on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which consideration are mutually acknowledged by
the parties, it is hereby agreed as follows:
1. RECITALS. The recitals hereinbefore set forth constitute
an integral part of this Agreement, evidencing the intent of the parties in
executing this Agreement and describing the circumstances of its execution.
Said recitals are by express reference made a part of the covenants hereof,
and this Agreement shall be construed in the light thereof.
2. ENGAGEMENT OF CONSULTANT. The Bank engages the Consultant
to provide services, as specified in Section 4, below, to the Bank and the
Consultant hereby agrees to provide these services, in accordance with the
terms and conditions set forth in this Agreement.
3. TERM. This Agreement shall commence on the date set forth
above ("Effective Date") and expire on the second anniversary of the Effective
Date, unless earlier terminated by agreement of the parties. Upon termination
of this Agreement, neither party shall have any further obligations hereunder,
except that the Bank shall be obligated to pay to Consultant any compensation
earned or expenses to be reimbursed under Sections 5 and 6, below, and
Consultant's obligations described in Section 7 and the Bank's remedies under
Section 8 (for breaches under Section 7) shall continue notwithstanding the
termination of this Agreement.
4. DUTIES AND CONSULTANT. The Consultant shall, upon the
reasonable request of the Bank, assist the Bank in the post-merger transition
period and, for a period of two (2) years after the Effective Date, in the
pursuit of the "goodwill claim" of the Bank at such times and in such
manner as Consultant and the Bank shall mutually agree. The Consultant's
on-location (i.e., away from his principal place of business) requirements will
not exceed six (6) days per calendar quarter without the Consultant's consent.
5. COMPENSATION. As compensation for his services and the
restrictive covenants contained herein, the Consultant shall receive
twenty-four (24) monthly payments in the amount of $8,333.33 each, with the
first such payment being due on January 6, 1997 and the remaining payments
being due by the first day of each of the succeeding twenty-three (23) months.
6. ASSISTANCE/EXPENSES. The Bank agrees to provide or to
cause to be provided to Consultant an office and such other assistance as the
Bank determines to be required for Consultant to discharge any
responsibilities assigned pursuant to Section 4. The Bank shall pay or
reimburse the Consultant for the reasonable and appropriate out-of-pocket
expenses incurred by him in connection with the performance of services under
this Agreement. Consultant must provide proper documentation to the Bank for
all such expenses.
7. CONFIDENTIAL INFORMATION. Consultant understands and
acknowledges that his obligations to the Bank under Section 11 of his
Employment Agreement dated as of February 14, 1996, relating to confidential
information shall continue to apply to and obligate Consultant during and
after the term of this Agreement.
8. REMEDIES. Consultant acknowledges that the restraints and
agreements herein provided are fair and reasonable, that enforcement of the
obligations described in Section 7 will not cause him undue hardship and that
said provisions are reasonably necessary and commensurate with the need to
protect the Bank and its legitimate and proprietary business interests and
property from irreparable harm. Consultant acknowledges and agrees that (a) a
breach of any of the obligations described in Section 7, above, will result in
irreparable harm to the business of the Bank, (b) a remedy at law in the form
of monetary damages for any breach by him of any of the obligations described
in Section 7 is inadequate, (c) in addition to any other remedy at law or
equity for such breach, the Bank shall be entitled to institute and maintain
appropriate proceedings in equity, including a suit for injunction to enforce
the specific performance by Consultant of the obligations hereunder and to
enjoin Consultant from engaging in any activity in violation hereof, and (d)
the obligations on his part described in Section 7 shall be construed as
agreements independent of any other provisions in this Agreement, and the
existence of any claim, setoff or cause of action by Consultant against the
Bank, whether predicated on this Agreement or otherwise, shall not constitute
a defense or bar to the specific enforcement by the Bank of said covenants.
9. INDEPENDENT CONTRACTOR. The parties to this Agreement
intend that the Consultant will perform under this Agreement as an independent
contractor, and not as an employee of the Bank. Consequently, during the term
of this Agreement:
2
(a) The Consultant shall be solely responsible for
the payment of all taxes in connection with the Consultant's
remuneration from the Bank, and the Bank shall not withhold
taxes from his remuneration; and
(b) The Consultant shall not accrue or receive any
benefits under any employee benefit plan maintained by the
Bank attributable to his services hereunder; provided that
nothing in this Agreement shall affect any rights to
benefits Consultant (and Consultant's spouse and dependents)
might have under any employee benefit plans of the Bank by
virtue of his prior service as an employee of Cal Fed
Bancorp Inc. or its subsidiaries.
10. ENTIRE UNDERSTANDING. This Agreement constitutes the
entire understanding between the parties relating to Consultant's services
hereunder and supersedes and cancels all prior written and oral understandings
and agreements with respect to such matters. Any amendment of this Agreement
shall be effective only to the extent that it is in writing, executed by the
Bank and Consultant.
11. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of (a) Consultant's executors, administrators, legal
representatives, heirs and legatees and (b) the Bank and its successors and
assigns.
12. PAYMENT IN THE EVENT OF DEATH. In the event of
Consultant's death prior to the expiration of the term of this Agreement, the
Bank shall pay to such beneficiary as the Consultant may designate in writing,
or the executor of his estate in the absence of such designation, a lump sum
equal to the unpaid balance of the total compensation of two hundred thousand
dollars ($200,000) payable pursuant to Section 5, above. Such payment shall be
in full settlement and satisfaction of all claims and demands on behalf of the
Consultant under this Agreement.
13. WAIVER. The waiver by any party hereto of a breach of
any provision of this Agreement by any other party shall not operate or be
construed as a waiver of any subsequent breach.
14. GOVERNING LAW. This Agreement shall be governed by, and
interpreted, construed and enforced in accordance with, the laws of the State
of California.
15. HEADINGS. The headings of the sections of this
Agreement are for reference purposes only and do not define or limit, and shall
not be used to interpret or construe, the contents of this Agreement.
3
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed at Los Angeles, California, on the date above set forth.
CONSULTANT CALIFORNIA FEDERAL BANK, F.S.B.
/s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
--------------------------- -----------------------------------
Xxxxxx X. Xxxxxxxxxx Its Senior Vice President
----------------------------------
4
