EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this 1st
day of April 1998 by and between Concord Growth Corporation (the "Corporation"),
a California Corporation, and Xxxxxxx X. Xxxxxxxxx (the "Executive").
R E C I T A L S:
A. The parties desire to enter into this Agreement setting forth the
terms and conditions of the employment relationship between the Corporation and
the Executive.
B. The Board of Directors of the Corporation (or "Board") believes it is
in the best interests of the Corporation to enter into this Agreement with the
Executive in order to assure continuity of management of the Corporation, and
has approved and authorized the execution by the Corporation of this Agreement.
C. This Agreement shall replace in its entirety all that Employment
Agreement dated January 21, 1997 between the parties.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises herein contained, the parties hereto agree as follows:
1. Executive's Title, Duty, Authority and Time Commitment.
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a. Title. The Executive's position and title with the Corporation
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shall be that of Executive Vice President and Chief Operating Officer.
b. Duties and Authority. The Executive's duties and authority shall
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be consistent with those of an Executive Vice President and Chief Operating
Officer. The Executive shall render such administrative and management services
to the Corporation as are customarily performed by persons employed in the
commercial finance industry in a similar executive capacity. In addition, the
Executive shall perform such other duties as the Board, or its authorized
representative, may from time to time require, provided
such duties are reasonably consistent with the Executive's education, experience
and background. Performance evaluations shall be conducted by or under the
direction of the Board and reviewed with the Executive annually.
c. Time Commitment. During the "Term of this Agreement", as defined
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in Section 5 of this Agreement, unless the Executive has obtained the prior
written consent of the Board, or its authorized representative,
(1) The Executive shall devote substantially all of his
productive time and services to the performance of duties called for in
this Agreement during normal business hours, but is authorized to engage in
such trade association and related activities during normal business hours
which, in his judgment, with the concurrence of his immediate supervisor,
are in the business interests of the Corporation; and
(2) The Executive shall not render personal services to any
other person or entity for compensation, either as an Executive,
consultant, director or officer, without first obtaining approval from the
Chairman of the Board. In no event shall such services conflict with the
Executive's duty to the Corporation or adversely affect the Executive's
judgment in the performance of his responsibilities. Executive shall remain
free to engage in community, charitable, political and personal pursuits
which do not interfere with his performance under this Agreement.
2. Compensation. The Corporation agrees to pay the Executive during the
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Term of this Agreement a base salary as follows: $150,000 per annum, with the
salary to be reviewed for increase on July 1, 1998, and annually on each July
1st thereafter during the Term of this Agreement. Salary increases are not
guaranteed or automatic. The salary provided for in this Agreement shall be
payable semi-monthly in accordance with the practices of the Corporation.
3. Discretionary Bonuses. The Executive shall be entitled to
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participate in discretionary bonuses and incentive payments to the extent
authorized and declared by the Board or its authorized representative. For any
given calendar year, Executive shall be entitled to an annual performance bonus
of up to 50% of
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his base salary based upon the attainment of performance goals set by the
Corporation.
4. Additional Benefits.
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a. Participation in Executive Benefit Plans. The Executive shall be
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entitled to participate in any plan of the Corporation, as such plan may from
time to time provide, relating to pension, thrift, deferred profit sharing,
group insurance coverage, education or retirement or other supplemental
Executive benefits that the Corporation may adopt for all of its executives as a
group.
b. Fringe Benefits. The Executive shall be entitled to participate
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in any other program which may be or become applicable to the Corporation's
executives, as such program may from time to time provide including a reasonable
expense account, the payment of reasonable expenses for attending educational
seminars and annual and periodic meetings of trade associations, and other
benefits which are commensurate with the responsibilities and functions to be
performed by the Executive under this Agreement.
5. Term.
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a. Initial Term and Automatic Extension Termination of Prior
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Employment Agreement. The initial term of this Agreement shall be for one year
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commencing on January 1, 1998 and expiring on December 31, 1998 (the "Expiration
Date"). On the Expiration Date and on each anniversary date of the Expiration
Date thereafter, the Term of this Agreement shall be extended automatically by
one additional year beyond the then current Expiration Date, unless either the
Corporation or the Executive gives contrary written notice to the other not less
than 45 days in advance of the date on which this Agreement would otherwise be
extended. Reference herein to the "Term of this Agreement" shall refer to both
the initial term and to the term as so extended. Section 9, entitled "Change in
Control," Section 13, entitled "Confidential Information," and Section 14,
entitled "Arbitration," shall survive the expiration of this Agreement.
b. Consequences of Non-Extension. If this Agreement is not
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extended, on the expiration of the Term of this
3.
Agreement, the Executive shall be deemed to be employed by the Corporation for
no specific term and the Executive's rights as an Executive of the Corporation
shall be no less than those provided by the laws of the State of California and
the laws of the United States; provided, however, that such post expiration
employment may be terminated at any time by the Executive or by the Board, or
its authorized representative, with or without cause by delivery to the
Executive of a Termination Notice as defined in Section 7a hereof.
6. Voluntary Absences; Paid Vacation. At such reasonable times as the
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Board, or its authorized representative, shall in its discretion permit, the
Executive shall be entitled, without loss of pay, to absent himself voluntarily
from the performance of his employment under this Agreement. All such voluntary
absences shall count as holidays, vacation time, floating holidays, sick leave,
or other paid time off as specified in Corporation policy. The Executive shall
be entitled to an annual paid vacation of twenty (20) days per year.
7. Termination of Employment.
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a. Termination by Corporation. The Executive's employment under
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this Agreement may be terminated, with or without cause, at any time by the
Board, or its authorized representative, by delivery to the Executive of a
written notice (the "Termination Notice") of such termination. The Termination
Notice shall state the effective date of such termination and whether such
termination is for "cause," as defined in Section 7a(1), or without cause
pursuant to Section 7a(2). Unless the Termination Notice states that the
termination is for cause and states with reasonable particularity the cause, the
termination shall be deemed to be without cause pursuant to Section 7a(2). In
the event an arbitrator appointed pursuant to Section 13 of this Agreement
determines that a purported termination for cause was in fact without proper
cause, the termination shall nonetheless be effective, but the Executive shall
be entitled to the severance payment pursuant to Section 7a(2) hereof.
(1) Termination by Corporation for Cause. The Executive's
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employment under this Agreement may be terminated at any time by the Board, or
its authorized representative, for "cause," which shall include:
4.
(a) The commission by the Executive of an act of willful
and material misconduct in the performance of duties (including, but not limited
to, the willful and material violation of any law, rule, regulation or cease and
desist order applicable to the Executive or the Corporation or its insured
subsidiaries), or an act which constitutes a conflict of interest with the
Corporation or its stockholders, or a material breach of a fiduciary duty owed
by the Executive;
(b) The Executive's breach of this Agreement, dishonesty
resulting in enrichment of Executive at the expense of the company,
incompetence, willful and material misconduct, habitual absence from work,
failure to perform duties, or negligence in the performance of stated duties;
(c) The Executive's becoming physically or mentally
incapable of performing the essential functions of his employment position, with
or without reasonable accommodation, for a period in excess of the applicable
leave entitlement, if any, mandated by Federal or State law; or
(d) Any criminal conviction of the Executive (other than
for a minor traffic violation or similar offense), involving the property or
business of the Corporation, or any criminal conviction which materially injures
the Corporation s reputation or business
Prior to the Corporation relying on sections 7a(1)(a) and (b), Executive shall
be given thirty (30) days advance notice of the claimed misconduct or breach and
Executive shall have reasonable opportunity to cure said breach; provided,
however, that no notice or cure period shall be required if Executive's
misconduct involves fraud or dishonesty.
In the event of termination for cause under this Section 7a(1), the Executive
shall have no right to receive compensation or other benefits under this
Agreement for any period after such termination.
(2) Termination by Corporation Without Cause. The Executive's
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employment under this Agreement may be terminated at any time by the Board, or
its authorized
5.
representative, without cause; provided, however, that unless the termination of
this Agreement is for "cause," as set forth in Section 7a(1), or pursuant to
Sections 7b, 7c, or 9, then, upon such termination, in addition to any benefits
that had accrued to the date of termination but in lieu of any rights or
benefits that would have accrued following such termination, the Executive shall
be entitled, upon execution of a Severance Agreement and Release as provided in
Exhibit A, to a lump sum severance payment of twelve (12) months salary.
b. Termination by the Executive. This Agreement and Executive's
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employment may be terminated by the Executive at any time and for any reason
upon 30 days written notice to the Corporation or upon such shorter period as
may be agreed upon between the Executive and the Board subject, however, to the
provisions contained in Section 13 and the Severance Plan provided in Exhibit B.
c. Termination by Death. In the event of the death of the Executive
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during the Term of this Agreement, the Executive's estate, or such person as the
Executive may have previously designated in writing for group insurance
purposes, shall be entitled to receive the salary due the Executive through the
last day of the calendar month in which his death shall have occurred.
8. Disability. If the Executive shall become disabled or incapacitated
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to the extent that he is unable to perform the essential functions of his
employment position, with or without reasonable accommodation (as determined in
accordance with applicable law), he shall be entitled to receive disability
benefits of the type, if any, provided for other employees of the Corporation.
In such event, when the Executive has been absent 90 calendar days in excess of
utilized vacation and sick leave within a 120 calendar day period after the last
day the Executive worked, any rights of the Executive to receive the salary
provided in Section 2 of this Agreement shall be suspended until the Executive
is able to resume regular performance of his duties.
9. Change in Control. If during the Term of this Agreement, or within
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one (1) year following the expiration of this Agreement and if Executive is
employed by the Corporation, there is a "change in control," as hereinafter
defined, of the
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Corporation or Bay View Capital Corporation ("BVCC"), the Executive shall be
entitled, upon execution of a Severance Agreement and Release as provided in
Exhibit A, to a severance payment in the event the Executive's employment is
terminated, other than for "cause" as set forth in Section 7a(1) or pursuant to
Sections 7b (except as provided below), 7c or 7(d), within twenty-four (24)
months after the change in control. The amount of this payment shall equal two
hundred percent (200%) of the Executive's annual salary as of the date of
termination and shall be in lieu of any severance payment that would be due
Executive under Section 7a(2). Such termination or severance payment shall be in
addition to all other amounts payable to the Executive pursuant to this
Agreement. This termination or severance payment shall also be made in lieu of
any severance payment that would be due Executive under section 7b in the case
of a termination of employment by the Executive pursuant to Section 7b of this
Agreement within twenty-four (24) months after a change in control because
during such twenty-four (24) month period there has been a material diminution
of or interference with the Executive's duties, responsibilities and benefits as
Executive Vice President and Chief Operating Officer of the Corporation. By way
of example and not by way of limitation, any of the following actions, if
unreasonable or materially adverse to the Executive, shall constitute such
diminution or interference unless consented to in writing by the Executive: (i)
a change in the principal workplace of the Executive to a location more than 25
miles from the Corporation's main office; (ii) a reduction or adverse change in
the salary or benefits which had theretofore been provided to the Executive,
other than as part of an overall program applied uniformly and with equitable
effect to all members of senior management of the Corporation; or (iii) a change
in Executive's title.
Any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12 U.S.C.
1828(k) and any regulations promulgated thereunder.
The term "change in control" means (1) an event with respect to BVCC of a
nature that would be required to be reported in response to Item 1 of the
current report on Form 8-K, as in effect on the date hereof, pursuant to Section
13 or 15(d) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); (2) if
any
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person (as the term is used in Sections 13(d) and 14(d) of the Exchange
Act) or becomes the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) directly or indirectly of securities of the Corporation or
BVCC representing 20% or more of the Corporation's or BVCC's outstanding
securities; or (3) a reorganization, merger, consolidation, sale of all or
substantially all of the assets of the Corporation or BVCC or a similar
transaction in which the Corporation, BVCC, or a subsidiary of BVCC is not the
resulting entity. The term "change in control" shall not include an acquisition
of securities by an employee benefit plan of the Corporation or BVCC.
10. Successors and Assigns. The terms, provisions, covenants, and
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conditions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided,
however, that the Executive may not sell, assign, pledge, hypothecate or
otherwise transfer this Agreement or any part thereof without the prior written
consent of the Corporation. "Successors and assigns" shall mean, in the case of
the Corporation, any successor pursuant to a merger, consolidation or sale or
transfer of all or substantially all of the assets of the Corporation.
11. Indemnification. The Corporation hereby agrees that the
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Corporation shall indemnify the Executive to the fullest extent permitted by the
Corporation's Bylaws and by Delaware corporate law.
12. Excise Taxes. In the event it shall be determined that any
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payment or distribution by the Corporation or its affiliates to or for the
benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of the Agreement or otherwise, but
determined without regard to any additional payments required under this Section
12) (a "Payment") would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code (the "Code") or any interest or penalties are incurred
by the Executive with respect to such excise (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes),
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including, without limitations, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payment.
13. Confidential Information
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a. Non-Disclosure. Employee hereby agrees that, during the
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Term of this Agreement and thereafter, he will not disclose to any person, or
otherwise use or exploit any of the proprietary or confidential information or
knowledge, including without limitation, trade secrets, processes, records of
research, proposals, reports, methods, techniques, customer lists and customers,
computer software or programming, budgets or financial information, or other
confidential information and/or trade secrets, regarding the Company, its
businesses, properties or affairs obtained by him at any time prior to or
subsequent to the execution of this Agreement, except to the extent required by
his performance or assigned duties for the Company. Executive understands that
proprietary or confidential information does not include any of the foregoing
items which (i) have become publicly known or made generally available through
no wrongful act of Executive or of others who were under confidentiality
obligations as to the item or items involved, or (ii) are independently
developed by the Executive without the use of proprietary or confidential
information. In addition, Employee agrees not to divulge, publish or otherwise
reveal, during the Term of this Agreement or thereafter, either directly or
indirectly, or through another, to any person, firm or corporation, for
competitive purposes, any knowledge or information or any facts concerning the
methods and techniques used by the Company to conduct business, the names of
customers and others who have relationships with the Company, or other
confidential information and/or trade secrets used by the Company in the
operation of its business. During the Term of this Agreement: (i) Employee
agrees to disclose to the Company the identity and nature of any contacts with
any person or entity soliciting from Employee disclosure of any such information
or soliciting Employee's involvement in any business venture competitive with
the Company; and (ii) Employee shall not conceal from or fail to disclose to the
Company, or divert or exploit for his own personal profit or that of others, any
business opportunity or other opportunity to acquire an interest in or a
contractual relationship with any person or entity where such
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person or entity is in the Company's line of business or where such contractual
relationship would be considered a feasible and advantageous opportunity for the
Company.
b. Return of Materials. Upon termination of employment,
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Employee will deliver to the Company all tangible displays and repositories of
process, records of research, proposals, reports, memoranda, computer software
and programming, budgets and other financial information, and other materials or
records or writings of any type (including any copies thereof) made, used or
obtained by Employee in connection with his employment by the Company; provided,
however, that documents relating to Employee's employment arrangements with the
Company or his personal affairs shall be excluded from the provisions herein.
Notwithstanding the foregoing, Employee will be entitled to have reasonable
access to such property as is necessary for and in order to prosecute or defend
any legal action or proceeding or to respond to a court or arbitration order.
c. The Employee acknowledges that the restrictions contained in
the foregoing paragraphs of this Section 12, in view of the nature of the
business in which the Company is engaged, are reasonable and necessary in order
to protect the legitimate interests of the Company, and that any violation
thereof would result in irreparable and substantial harm to the Company for
which the Company does not have an adequate remedy at law, and the Employee
therefore acknowledges that, in the event of his actual or threatened violations
of any of these restrictions, the Company shall be entitled to obtain from any
court of competent jurisdiction temporary, preliminary and permanent injunctive
relief as well as damages and equitable accounting of all earnings, profits and
other benefits arising from such violation, which rights shall be cumulative and
in addition to any other rights or remedies to which the Company may be
entitled.
d. In the event that the Company believes that it is entitled
to relief under this Section 13, Company will provide written notice to Employee
specifying the nature of any alleged breach of this section. Company shall be
obligated to discuss with Employee in good faith whether such breach has
occurred and, if so, whether such breach can be cured. If Employee cures such
breach within fifteen (15) days from the date of such
10.
notice, Employee shall not be deemed to be in breach of this Section 13.
14. Arbitration. Except as provided in Section 14c, the parties
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hereby agree that any controversy or dispute arising out of or relating to this
Agreement shall be resolved pursuant to this Section 14.
a. Agreement to Negotiate. Prior to submitting any
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controversy, dispute or claim arising out of, or relating to, this Agreement to
arbitration, the parties hereto agree to observe the following procedures:
(1) The party desiring to submit any such controversy,
dispute or claim to arbitration (the "claimant") first shall give written notice
thereof to the other party (the "recipient") setting forth in detail the
pertinent facts and circumstances relating to such controversy, dispute or
claim;
(2) The recipient shall have a period of fifteen (15) days
in which to consider the controversy, dispute or claim which is the subject of
the notice and to furnish in writing to the claimant a written statement of the
recipient's position;
(3) Within seven (7) days of claimant's receipt of
recipient's written statement, the parties shall meet in an effort to resolve
amicably any differences which may exist and, failing such resolution, or the
recipient's failure to provide timely statement of position, either or both of
the parties shall have the right to submit the matter to arbitration.
b. Procedure for Arbitration.
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(1) The parties hereby agree that to the extent allowable
by law any controversy, dispute or claim arising out of, or relating to, this
Agreement, or breach of this Agreement, including disputes concerning
termination of this Agreement as well as those based upon alleged tort or
unlawful acts including harassment or discrimination, shall be settled by
arbitration in San Mateo, California. The parties hereby waive any right to a
trial by court or jury. This agreement to arbitrate shall be specifically
enforceable. Judgment upon any
11.
award rendered by an arbitrator may be entered in any court having jurisdiction.
(2) Any demand for arbitration must be served on the other
party within forty-five (45) days of the act or omission giving rise to the
controversy, dispute or claim, except that the demand in writing may be made at
a later date in accordance with the applicable statute of limitation for any
statutory claim which allows a later date for the presentation of the claim.
(3) There shall be one impartial arbitrator chosen by
the Corporation from a list procured from the California Mediation and
Conciliation Service. The choice of arbitrator shall be subject to the
Executive's approval.
(4) The arbitrator shall not extend, modify or suspend
any of the terms of this Agreement except as required by law.
(5) The decision of the Arbitrator within the scope of the
submission shall be final and binding on all parties, and any right to judicial
action on any matter subject to arbitration hereunder is hereby waived (unless
otherwise provided by applicable law), except suit to enforce this arbitration
award.
(6) Executive agrees that such arbitration shall be the
exclusive forum for any controversy, dispute or claim arising out of or relating
to this Agreement, or breach or termination of this Agreement.
(7) The prevailing party in any such arbitration shall be
entitled to recover his or its costs and expenses, including reasonable
attorneys' fees, incurred in connection with such arbitration.
(8) The arbitrator shall issue a written opinion specifying
factual and legal bases for the award.
15. General Provisions.
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a. Notices. Any notice, request, demand or other communication
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required or permitted hereunder shall be
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deemed to be properly given when personally served in writing and when deposited
in the United States mail, registered or certified, postage prepaid, addressed
to the party at the last address supplied to the sending party by the addressed
party.
b. Waiver. The waiver by any party of a breach of any
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provision of this Agreement by the other shall not operate or be construed as a
waiver of any subsequent breach of the same provision or any other provision of
this Agreement.
c. Entire Agreement. Except as provided herein, this Agreement
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contains the entire agreement of the parties. It supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Executive by the Corporation. Each party to this
Agreement acknowledges that no representations, inducements, promises or
agreements, oral or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein, and that no other agreement,
statement or promise not contained in this Agreement shall be valid and binding.
d. Amendments. No amendments or additions to this Agreement
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shall be binding unless in writing and signed by both parties, except as herein
otherwise provided.
e. Paragraph Headings. The paragraph headings used in this
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Agreement are included solely for convenience and shall not affect, or be used
in connection with, the interpretation of this Agreement.
f. Severability. The provisions of this Agreement shall be
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deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof.
g. Governing Law. Except where federal law governs, this
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Agreement is to be governed by and construed under the internal substantive laws
of the State of California unless otherwise specified in this Agreement (and not
under conflict of law principles) as such laws apply to contracts made and to be
performed entirely in the State of California.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first hereinabove written.
13.
CONCORD GROWTH CORPORATION,
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
THE EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
14.
