EXHIBIT
ITEM 10(ii)A(1)
Employment Contract of Xxxxxxx X. Xxxxxxxxxxx, Xx. date January 1, 2000
EMPLOYMENT CONTRACT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of the 1st
day of January 2000, between MONTEREY COUNTY BANK, a California corporation
(Bank"), and XXXXXXX X. XXXXXXXXXXX, XX. ("Executive")
W I T N E S S E T H
WHEREAS, Executive has served as the Chairman and Chief
Executive Officer of Bank since 1987 with distinction, leading the Bank to a
"Premier Performing" rating in 1992, reducing the level of non--performing
loans from one far in excess of state averages to one which is far below
state averages, and becoming the only Chief Executive Officer in the Bank's
history whose tenure generated net profits; and
WHEREAS, the latest Employment Agreement between Executive and
Bank expired as of December 31, 1999; and
WHEREAS, Bank desires that Executive continue to be employed
as Bank's Chairman, President and Chief Executive Officer, and to document
the terms of such employment; and
WHEREAS, Executive is willing to be employed as Bank's
Chairman, President and Chief Executive Officer under the terms and
conditions herein stated.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter contained, and other good and valuable consideration,
it is hereby agreed by and between the parties hereto as follows:
A. TERM OF EMPLOYMENT
1. TERM. Bank hereby agrees to continue to employ
Executive, and Executive hereby accepts employment with Bank, for the period
of three (3) years, commencing on January 1, 2000, subject however, to prior
termination of this Agreement as hereinafter provided (the "Term"). When used
herein, "Term" shall refer to the entire period of employment of Executive by
Bank hereunder commencing January 1, 2000 (the "Effective Date"), whether for
the period provided above, or whether terminated earlier as hereinafter
provided.
B. DUTIES OF EXECUTIVE
1. DUTIES. Executive shall perform the duties of
Chairman of the Board, President and Chief Executive Officer of Bank, subject
to the powers by law vested in the Board of Directorsof Bank and in Bank's
shareholders, and shall serve as a Director of Bank if elected by the
shareholders. During the Term, Executive shall perform exclusively the
services herein contemplated to be performed by Executive with due care,
faithfully, diligently, to the best of Executive's ability and in compliance
with all applicable laws, policies adopted by the Board of Directors, and
Bank's Articles of Incorporation and Bylaws.
2. EXCLUSIVITY. Executive shall devote Executive's
entire productive time, ability and attention to the business of Bank during
the Term. Executive shall not directly or indirectly render any services of a
business, commercial or professional nature to any other person, firm or
corporation, whether for compensation or otherwise, without prior consent
evidenced by a resolution duly adopted by the Board of Directors of the Bank,
or the Executive Committee thereof. Notwithstanding the foregoing, Executive
may make investments of a passive nature in any business or venture, provided
however, that such business or venture is neither in competition or conflict,
3. UNIQUENESS OF EXECUTIVE'S SERVICES. The Executive
hereby represents that the services to be performed by him under the terms of
this contract are of a special, unique, unusual, extraordinary, and
intellectual character, which give them a peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in an action at
law. The Executive therefore expressly agrees that the Bank, in addition to
any other rights or remedies which the Bank may possess, shall be entitled to
injunctive and other equitable relief to prevent a breach of this contract by
the Executive.
4. PHYSICAL EXAMINATION. Executive shall take an
annual physical examination during each year during the Term of this
contract. Said physical examination(s) shall be conducted at the expense of
the Bank.
C. COMPENSATION
1. SALARY. For Executive's services hereunder, Bank
shall pay or cause to be paid as annual gross base salary to Executive the
amount of not less than $180,000 during each of the years of the Term,
beginning with the Effective Date. Executive shall also, so long as he serves
on the Board of Directors, be entitled to director's fees on the same basis
as paid to outside directors, if the Board of Directors does not exclude him
from such directors fees. The Board of Directors shall also, from time to
time, and at least once each calendar year grant such additional "merit"
increases, if any, in the base salary as are determined after review to be
appropriate in the discretion of the Board of Directors. Executive's salary
shall be payable in equal installments in conformity with Bank's normal
payroll periods as in effect from time to time.
D. EXECUTIVE BENEFITS
1. VACATION. Executive shall be entitled to a vacation
leave of four (4) weeks during each year of the Term, of which two (2) weeks
must be taken consecutively in each calendar year. Executive shall be
entitled to vacation pay, in lieu of up to two (2) weeks of vacation during
each calendar year, with the consent of the Board of Directors.
2. AUTOMOBILE ALLOWANCE. During the term hereunder,
Bank shall provide Executive, for Executive's sole use, a suitable full--size
automobile, or if the Executive desires to use his own automobile, Bank shall
pay Executive a comparable auto allowance (NOT LESS THAN $750 PER MONTH) as
determined by the Board of Directors. Bank shall pay all operating expenses
of any nature whatsoever with regard to such automobile.
Executive shall use reasonable efforts to furnish to Bank substantially
adequate records and other documentary evidence required by federal and state
statutes and regulations issued by the appropriate taxing authorities
substantiating the extent to which such payments are deductible business
expenses of Bank and not deductible additional compensation to Executive.
Bank shall also procure, pay for and maintain in force adequate insurance
coverage for such automobile. Bank and Executive agree that the value of
Executive's personal use of the automobile is twenty (20%) of the annual cost
of the automobile lease, repairs, and gasoline which shall be treated for tax
purposes as additional compensation to Executive, subject to appropriate
withholding.
3. GROUP MEDICAL AND LIFE INSURANCE BENEFITS. Bank
shall provide for Executive, at Bank's expense to the extent permitted by
Bank policy, participation in a comprehensive major medical, dental, and
optical plan, with accident benefits, equivalent to either (i) the maximum
available from time to time under the California Bankers Association Group
Insurance Program for an employee of Executive's salary level; or (ii) the
benefits under an insurance program adopted on a non--discriminatory basis
for the employees of the Bank generally. Life insurance benefits shall be
provided to Executive, at Bank's expense to the extent not prohibited by Bank
policy during the term hereof in an amount not less than $200,000, with
Executive to designate beneficiary thereunder.
4. SALARY CONTINUATION PLAN. Bank shall provide for
Executive a Salary Continuation Plan that provides for payments of $75,000
per year, for Xx. Xxxxxxxxxxx'x lifetime, if he remains with the Bank until
normal retirement, commencing age 65. The Salary Continuation Plan shall
provide the following with regard to the division of death proceeds should
Xx. Xxxxxxxxxxx die before his sixty-fifth (65th) birthday; his
beneficiary(ies) shall be entitled to an amount equal to $1,440,000 or the
net at risk insurance portion of the proceeds, whichever amount is less. The
net at risk insurance portion is the total proceeds less the cash value of
the policy. Should Xx. Xxxxxxxxxxx die on or subsequent to his sixty-fifth
(65th) birthday, his beneficiary(ies) shall be entitled to an amount equal to
$1,000,000 or the net at risk insurance portion of the proceeds, whichever is
less, and the Bank shall be entitled to the remainder of such proceeds.
5. BONUS. For the calendar year 2000, and for each full
calendar year of the Term completed by Executive pursuant to this Agreement,
he shall be entitled to an Incentive Bonus determined in accordance with this
paragraph. The Incentive Bonus shall equal the lesser of (i) $160,000, or
(ii) the sum of the ROA Bonus and the XXX Bonus, determined in accordance
with the Exhibit D-4. This bonus shall be payable in January of the year
following completion of the year on which it is based, or as soon thereafter
as is practical after the Bank's certified public accountants have delivered
their report on the Bank's condition and results of operations for the year.
6. SICK LEAVE. Executive shall be entitled to days of
paid sick leave in accordance with Bank policy.
E. BUSINESS EXPENSES AND REIMBURSEMENT.
1. BUSINESS EXPENSES. Executive shall be entitled to
reimbursement by Bank for any ordinary and necessary business expenses
incurred by Executive in the performance of Executive's duties and in acting
for Bank during the Term. Types of expenses qualifying for such reimbursement
shall be determined by the Board of Directors. Executive shall furnish to
Bank adequate records and other documentary evidence required by federal and
state statutes and regulations issued by the appropriate taxing authorities
for the substantiation of such payments as deductible business expenses of
Bank and not as deductible compensation to Executive; provided, however, that
reimbursement of such expenses shall not be dependent on proving
deductibility of such expenses for tax purposes if such expenses are
otherwise determined by the Board of Directors, in its sole discretion, to be
appropriate.
F. TERMINATION.
1. TERMINATION WITH CAUSE. Except as otherwise provided
herein, this Agreement may be terminated by Bank, at Bank's option with
notice to Executive, upon the occurrence of any of the following events:
(a) A material breach by Executive of any of the
terms or provisions of this Agreement;
(b) Executive is convicted of illegal activity by a
court of competent jurisdiction or pleads guilty to or nolo contendere to,
illegal activity, which activity materially adversely affects Bank's
reputation in the community or which evidences the lack of Executive's
fitness or ability to perform Executive's duties, as determined by the Board
of Directors in good faith; or
(c) Executive has committed any illegal or
dishonest act which would cause termination of coverage under Bank's Bankers
Blanket Bond as to Employee, as distinguished from termination of coverage as
to Bank as a whole; or
(d) Executive materially fails to perform or
habitually neglects Executive's duties or commits a material act of
malfeasance or misfeasance in connection therewith; or
(e) Executive becomes permanently disabled as such
is defined in his or Bank's disability insurance policy and such disability
makes Executive eligible for benefits thereunder (or if no such definition,
as defined by federal law or regulation pursuant to the Social Security Act
or a rebated statute). Any controversy concerning Executive's disability
shall be settled by arbitration in accordance with the rules of the American
Arbitration Association. Any termination pursuant to this subsection (d)
shall not affect the continued operation of any disability income
continuation plan, which may be established for the benefit of Executive;
(f) An order under 12 U.S.C. 1818(b) or (e) or any
similar statute is issued against Executive or Bank which calls for his
suspension or
removal from office; or
(g) The Superintendent of Banks, or other
supervisory or regulatory authority having jurisdiction takes possession of
the property and business of Bank pursuant to applicable statute or
regulation.
2. TERMINATION WITHOUT CAUSE.
(a) During the Term, this Agreement may be
terminated by Bank without cause upon written notice to Executive.
(b) During the Term, this Agreement may be
terminated by Executive without cause upon sixty (60) days' prior written
notice to Bank. Executive and Bank agree that it would be impractical or
extremely difficult to fix the actual damage caused by Executive's breach of
this Section F.2(b). Accordingly, the amount of damage suffered and
recoverable by Bank in the event of Executive's breach of this provision
shall be equal to the amount of Base Salary for Executive for two months.
Bank and Executive agree such sum is a reasonable estimate of damage under
the circumstances at the date this Agreement is made.
3. COMPENSATION UPON TERMINATION. (a) If Executive's
employment with Bank is terminated by Bank pursuant to Section F.1. hereof or
by Executive pursuant to Section F.2. hereof, Executive shall then only be
entitled to receive salary through the effective date of such termination
(without pro-ration of the Incentive Bonus described in Section D.4 above)
and shall receive any incurred but not reimbursed business expenses (subject
to the provisions of Section E.1. hereof).
(b) If Executive's employment is terminated by Bank
pursuant to Section F.2. hereof, Executive shall be entitled to receive
Executive's salary through the effective date of such termination; any
incurred but not reimbursed business expenses (subject to the provisions of
Section E.1. hereof); plus Executive's salary (as in effect immediately prior
to termination) for the "Severance Period", which shall be the greater of two
(2) years from the effective date of termination or the remainder of the Term
to be paid in equal installments in conformity with Bank's normal payroll
periods as in effect from time to time. However, if Executive's employment is
terminated by the Bank pursuant to Section F.2 within one year (1) after the
announcement or consummation, or during the pendency, of a Change in Control
Transaction, the Severance Period shall be the greater of 24 months from the
effective date of termination, or the remainder of the Term. A "Change in
Control Transaction" shall be limited to an acquisition by a person, or group
of persons acting in concert, of shares having the power to elect a majority
of the directors of the Bank, or a merger or other acquisition of the Bank or
its assets and business, in which the power to elect a majority of the
directors of the surviving corporation is in the hands of persons who were
not shareholders of the Bank as of one of the date hereof or a date two years
prior to such merger or other acquisition. In addition to compensation for
the Severance Period, Executive shall be entitled to a lump sum payment of
his Incentive Bonus (when calculated in accordance with the timing set forth
in Section D.4) for any calendar year in which his employment is terminated
by the Bank pursuant Section F.2 in an amount equal to a pro-rated portion
of the Incentive Bonus provided in Section D.4 above (calculated as though
the period from the beginning of the year until the end of the
month prior to the termination were a full year)
G. GENERAL PROVISIONS.
1. OWNERSHIP OF BOOKS AND RECORDS; CONFIDENTIALITY. (a)
All records or copies thereof of the accounts of customers, and any other
records and books relating in any manner whatsoever to the customers of Bank,
and all other files, books and records and other materials owned by Bank or
used by it in connection with the conduct of its business, whether prepared
by Executive or otherwise coming into his possession, shall be the exclusive
property of Bank regardless of who actually prepared the original material,
book or record. All such books and records and other materials, together with
all copies thereof, shall be immediately returned to Bank by Executive on any
termination of his employment.
(b) During the Term, Executive will have access to
and become acquainted with what Executive and Bank acknowledge are trade
secrets, to wit, knowledge or data concerning Bank, including its operations
and business, and the identity of customers of Bank, including knowledge of
their financial condition, their financial needs, as well as their methods of
doing business. Executive shall not disclose any of the aforesaid trade
secrets, directly or indirectly, or use them in any way, either during the
Term or thereafter, except as required in the course of Executive's
employment with Bank. Executive shall not solicit any employee or customer of
Bank to become an employee or customer of another institution until the later
of six (6) months following the end of the Term or the end of the Severance
Period.
2. ASSIGNMENT AND MODIFICATION. This Agreement, and the
rights and duties hereunder, may not be assigned by either party hereto
without the prior written consent of the other, and the parties expressly
agree that any attempt to assign the rights of any party hereunder without
such consent will be null and void; provided, however, that Bank's rights and
obligations hereunder shall be assignable without consent by operation of law
in the event of a merger or similar transaction involving the Bank.
3. FURTHER ASSURANCE. From time to time each party will
execute and deliver such further instruments and will take such other action
as the other party reasonably may request in order to discharge and perform
the obligations and agreements hereunder.
4. ARBITRATION. If the Parties hereto shall be unable
to reach an agreement on material provisions of this Agreement or on other
issues then such disputes shall be submitted to the American Arbitration
Association ("AAA") of closest to Monterey, California for resolution, in
accordance with the Commercial Arbitration Rules of the AAA (or by some other
arbitrator mutually agreed to by the parties). Such arbitration shall be
conducted in the following manner:
a. The Party desiring to resolve the dispute
through arbitration shall serve upon the Party a written notice of intent to
exercise rights under this arbitration provision. One arbitrator shall be
required, and that arbitrator shall be selected
by the arbitration service, in a manner determined by the AAA. The arbitrator
shall be furnished with a statement of issues in dispute and a summary of
each party's position.
b. The arbitrator shall set a date for a hearing
which shall be no less than thirty (30) days and no more than one hundred
twenty (120) days after the arbitrator is selected. At the arbitration, each
party shall present to the arbitrator the reasons why the respective
positions of the parties should be upheld. In considering such arguments, the
arbitrator may consider any evidence reasonably believed by him to be
credible and relevant to the determination which he is called upon to make.
The arbitrator may consider such hearsay and opinions of the parties as he
desires and may consider copies of any writings. The best evidence rule will
not apply nor any formal prerequisites required by the California Evidence
Code for the introduction of documents. Nothing contained herein shall
prevent either party from arguing about the weight to be given any evidence
under the Evidence Code or otherwise. The arbitrator shall not be bound by
either the Evidence Code, or the Code of Civil Procedure in determining the
evidence to be presented, admitted by him, or the method by which evidence
and arguments may be presented. All methods of discovery permitted by the
Code of Civil Procedure shall be permitted except use of requests for
admissions. Furthermore, a party shall only have fifteen (15) days from
receipt of interrogatories, or request for production to respond to the
propounding party. Each party shall have the right to take the deposition of
the other on twenty (20) days notice. The arbitrator shall determine a method
for resolution of any discovery dispute, which may include selecting one
arbitrator to resolve disputes by telephone conference. The arbitrator may
establish such rules as he deems reasonable for the conduct of the
arbitration, including requirements for the filing of memoranda supporting
the parties' positions.
c. The decision of the arbitrator shall be binding
upon the Parties and shall constituted a complete determination of the issues
considered by the arbitrator. The provisions this Section shall constitute a
binding arbitration agreement between the Parties pursuant to Code of Civil
Procedure Section 1321 et seq.
d. Each party shall be responsible for one-half of
all costs of the arbitration. Each party shall deposit with the AAA,
one--half (1/2) of all required deposits. The failure of either party to make
such deposit within thirty (30) days of notice of such cost shall
automatically entitle the other party to an arbitration determination
favorable to the party making the required deposit. Each party shall pay
their own fees and attorneys' fees and costs for the arbitration.
e. No arbitrator shall have ever been employed by
either party or their successors in interest or any of their Shareholders,
officers, directors, partners nor shall they be related to any of such
individuals by any relationship closer than consanguinity in the third degree.
NOTICE. BY INITIALING IN THE SPACE BELOW YOU ARE
AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE
"ARBITRATION OF DISPUTES" PROVISIONS DECIDED BY NEUTRAL ARBITRATION, AS
PROVIDED HEREIN AND BY CALIFORNIA LAW, AND YOU HEREBY AGREE TO WAIVE ANY
RIGHTS YOU MAY
POSSESS TO HAVE SUCH DISPUTE LITIGATED AND RESOLVED IN A COURT OR JURY TRIAL.
BY INITIALING IN THE SPACE BELOW YOU HEREBY WAIVE
YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE INCLUDED
IN THIS ARBITRATION OF DISPUTES PROVISION.
IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER
AGREEING TO THISPROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR EXECUTION OF THIS
AGREEMENT AND YOUR APPROVAL, SPECIFICALLY OF THIS PARAGRAPH 16, ACKNOWLEDGES
THAT YOUR EXECUTION OF THIS PROVISION IS VOLUNTARY AND THAT PRIOR TO SUCH
EXECUTION YOU HAVE CONSULTED WITH INDEPENDENT COUNSEL CONCERNING THE EFFECTS
OF SUCH PROVISION TO THE EXTENT YOU HAVE DEEMED NECESSARY, PRIOR TO YOUR
EXECUTION OF THIS PROVISION.
THE PARTIES HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE
TO, THE TERMS HEREOF AND TO THE SUBMISSION OF ANY DISPUTES TO ARBITRATION BY
THE AAA, AS SET FORTH HEREIN.
/S/ BW /S/ CTC
-------------------- --------------------
Bank's Initials Executive's Initials
4. NOTICES. All notices required or permitted
hereunder shall be in writing and shall be delivered in person or sent by
certified or registered mail, return receipt requested, postage prepaid as
follows:
To Bank: Monterey County Bank
000 Xxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Board of Directors
To Executive: Xxxxxxx X. Xxxxxxxxxxx, Xx.
X.X. Xxx 0000
Xxxxxx, XX 00000
or to such other party or address as either of the parties may designate in a
written notice served upon the other party in the manner provided herein. All
notices required or permitted hereunder shall be deemed duly given and
received on the date of delivery if delivered in person or on the second day
next succeeding the date of mailing if sent by certified or registered mail,
postage prepaid.
5. SUCCESSORS. This Agreement shall be binding
upon, and shall inure to the benefit of, the successors and assigns of the
parties.
6. ENTIRE AGREEMENT. Except as provided herein,
this Agreement constitutes the entire agreement between the parties, and all
prior negotiations, representations, or agreements between the parties,
whether oral or written, are merged into this Agreement. This Agreement may
only be modified by an agreement in writing executed by both of the parties
hereto.
7. GOVERNING LAW. This Agreement shall be construed
in accordance with the laws of the State of California.
8. EXECUTED COUNTERPARTS. This Agreement may be
executed in one or more counterparts, all of which together shall constitute
a single agreement and each of which shall be an original for all purposes.
9. SECTION HEADINGS. The various section headings are
inserted for convenience of reference only and shall not affect the meaning
or interpretation of this Agreement or any section hereof.
10. CALENDAR DAYS/CLOSE OF BUSINESS. Unless the context
so requires, all periods terminating on a given day, period of days or date
shall terminate on the close of business on that day or date and references
to "days" shall refer to calendar days.
11. SEVERABILITY. In the event that any of the
provisions, or portions thereof, of this Agreement are held to be
unenforceable or invalid by any court of competent jurisdiction, the validity
and enforceability of the remaining provisions or portions thereof, shall not
be affected thereby.
12. ATTORNEYS' FEES. In the event that any party shall
bring an action or arbitration in connection with the performance, breach or
interpretation hereof, then the prevailing party in such action as determined
by the court or other body having jurisdiction shall be entitled to recover
from the losing party in such action, as determined by the court or other
body having jurisdiction, all reasonable costs and expenses of litigation or
arbitration, including reasonable attorneys' fees, court costs, costs of
investigation and other costs reasonably related to such proceeding, in such
amounts as may be determined in the discretion of the court or other body
having jurisdiction.
IN WITNESS WHEREOF, this Agreement is executed as of the day and
year first above written.
BANK: MONTEREY COUNTY BANK
BY: /S/ XXXXX X. XXXXXX
-----------------------------
XXXXX XXXXXX
SENIOR VICE PRESIDENT AND
CHIEF OPERATING OFFICER
EXECUTIVE: /S/ XXXXXXX X. XXXXXXXXXXX, XX.
--------------------------------
XXXXXXX X. XXXXXXXXXXX, XX.
EXHIBIT D-4
CALCULATION OF BONUS
The ROA and XXX Bonuses shall be based on the Bank's pretax return
on average assets and beginning equity using the following amounts.
ROA ROA BONUS XXX XXX BONUS
--- --------- --- ---------
1.0% $ 10,000 10% $ 10,000
1.1% $ 20,000 11% $ 20,000
1.2% $ 30,000 12% $ 30,000
1.3% $ 40,000 13% $ 40,000
1.4% $ 50,000 14% $ 50,000
1.5% $ 60,000 15% $ 60,000
1.6% $ 70,000 16% $ 70,000
1.7% $ 80,000 17% $ 80,000
1.8% $ 90,000 18% $ 90,000
1.9% $ 100,000 19% $ 100,000
2.0% $ 110,000 20% $ 110,000
2.1% $ 120,000 21% $ 120,000
2.2% $ 130,000 22% $ 130,000
2.3% $ 140,000 23% $ 140,000
2.4% $ 150,000 24% $ 150,000
2.5% $ 160,000 25% $ 160,000
MAXIMUM COMBINED--$160,000, OR $340,000 MINUS NON-BONUS SALARY EXCLUDING
COMPENSATION, IF ANY, FOR VACATION NOT TAKEN) FOR THE YEAR. THE RETURN'S
SHALL BE CALCULATED BEFORE DEDUCTION FOR ANY ANNUAL PERFORMANCE BONUSES, BUT
AFTER DEDUCTION FOR COMMISSIONS AND BONUSES PAID ON A MONTHLY BASIS.
