EMPLOYMENT AGREEMENT
This employment agreement (the "Agreement"), dated as of July 9, 1997,
by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), Chairman of National Bank of
Southern California ("NBSC"), and Western Bancorp, a California corporation
("Western," formerly named Monarch Bancorp), is made with reference to the
Amended and Restated Agreement and Plan of Merger dated as of December 19, 1996
(the "Merger Agreement") by and between California Commercial Bankshares, the
parent of NBSC ("CCB"), and Western. Capitalized terms used herein but not
otherwise defined shall have the meanings assigned thereto in the Merger
Agreement.
Subject to the terms and conditions of this Agreement, Western wishes
to provide for ▇▇▇▇▇▇'▇ continued services to NBSC during the period following
the Effective Time and ▇▇▇▇▇▇ is willing to continue to serve as chairman of
NBSC and thereafter as consultant to Western. As of the Effective Time, this
Agreement replaces the executive salary continuation agreement, dated as of
January 2, 1988 (the "Prior Agreement"), between ▇▇▇▇▇▇ and NBSC.
Now, therefore, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. DUTIES. From the Effective Time through June 30, 1998 (such date being
the "Employment Termination Date" and such period being the "Employment
Period"), ▇▇▇▇▇▇ shall serve as Chairman of the Board of NBSC. In addition,
▇▇▇▇▇▇ shall serve as a
director of Western until the annual meeting of shareholders of Western in the
second quarter of 1998. In his position as Chairman of the Board of NBSC, ▇▇▇▇▇▇
shall promote the welfare of NBSC, with an emphasis on business development and
customer retention. His specific duties shall be performed in accordance with a
plan to be mutually agreed by ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (President of NBSC) and
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. (Chairman of Western). Thereafter, ▇▇▇▇▇▇ shall act as
consultant to Western as set forth in Section 7 hereof.
2. TERM. This Agreement, which shall supersede the Prior Agreement, shall
not terminate until all payments hereunder have been made in full.
3. COMPENSATION. During the Employment Period, ▇▇▇▇▇▇ will be entitled to
receive (i) a salary of (a) $190,000 per annum from the Effective Time through
December 31, 1997 and (b) $209,000 per annum from January 1, 1998 through the
Employment Termination Date, payable in accordance with NBSC's customary
practices, and (ii) the perquisites currently provided to him as chairman of
NBSC. Provided that prior to December 31, 1997 ▇▇▇▇▇▇ has NOT voluntarily
terminated his employment hereunder or been terminated by NBSC for "Cause" as
defined in Section 4(c) hereof, then ▇▇▇▇▇▇ will also be entitled to a bonus for
1997 based on job performance, the earnings of NBSC in relation to its budget
and otherwise comparable to the bonus paid for the 1997 plan year to other
executives of Western and its affiliates with similar duties, responsibilities
and job performance (expected to be approximately $109,725). In addition, on
July 1, 1998, Western shall pay to ▇▇▇▇▇▇, subject to the terms and conditions
set forth herein, the sum of $611,639 which may, by mutual agreement, be
deferred and
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paid at a future time and future value. ▇▇▇▇▇▇ shall be entitled to supplemental
retirement payments of $80,000 per year from and after the date of ▇▇▇▇▇▇'▇ 65th
birthday, payable monthly on the first day of each month following such birthday
for a period of 15 years (the aggregate of such payments not to exceed
$1,200,000).
4. TERMINATION OF SERVICE PRIOR TO RETIREMENT
(a) DEATH. In the event ▇▇▇▇▇▇ should die before receiving the
full amount of the payments provided in Section 3, then subject to clause
(c) hereof, Western shall nevertheless pay such sums to ▇▇▇▇▇▇'▇
representative or the person entitled to receive such payments under
▇▇▇▇▇▇'▇ will or the laws of descent and distribution at the times due in
accordance with Section 3.
(b) DISABILITY. In the event ▇▇▇▇▇▇ suffers a disability prior to the
Employment Termination Date, Western may terminate ▇▇▇▇▇▇'▇ employment but,
subject to clause (c) hereof, ▇▇▇▇▇▇ shall nevertheless be entitled to
receive the payments provided in Section 3 hereof. For purposes of this
Agreement, the term "disability" shall mean ▇▇▇▇▇▇'▇ inability to perform
his duties whether by injury (physical or mental), illness, or otherwise,
incapacitating ▇▇▇▇▇▇ for a continuous period exceeding 120 days and which
at any time after such 120-day period NBSC's Board of Directors shall
determine permanently renders ▇▇▇▇▇▇ incapable of performing his services.
Any determination made in good faith by NBSC's Board of Directors shall be
conclusive and binding upon ▇▇▇▇▇▇.
(c) VOLUNTARY TERMINATION BY ▇▇▇▇▇▇; TERMINATION BY NBSC FOR "CAUSE."
In the event ▇▇▇▇▇▇'▇ employment with NBSC is terminated prior to the
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Employment Termination Date either (i) voluntarily by ▇▇▇▇▇▇ (including,
without limitation, by not accepting employment pursuant to this Agreement)
or (ii) by NBSC for "Cause" (as defined herein), then this Agreement
(except for the provisions of Section 6) and all of Western's and NBSC's
obligations hereunder shall terminate on the date of such termination and
no benefits or payments of any kind shall thereafter be made to ▇▇▇▇▇▇
pursuant to this Agreement. For purposes of this Agreement, "Cause" means:
(x) the willful and continued failure by ▇▇▇▇▇▇ substantially to perform
▇▇▇▇▇▇'▇ duties with the NBSC (other than such failure resulting from
▇▇▇▇▇▇'▇ disability) after demand for substantial performance has been
delivered by NBSC's Board of Directors to ▇▇▇▇▇▇ which specifically
identifies the manner in which ▇▇▇▇▇▇ has not substantially preformed his
duties; (y) the willful engaging by ▇▇▇▇▇▇ in ▇▇▇▇▇ misconduct materially
and demonstrably injurious to the Bank; or (z) upon ▇▇▇▇▇▇'▇ dishonesty,
conviction of a serious crime or habitual intemperance.
(d) TERMINATION FOR "GOOD REASON." Notwithstanding anything to the
contrary contained herein, ▇▇▇▇▇▇ will not be treated as having voluntarily
terminated his employment hereunder, if such termination was for "Good
Reason" (as defined below). For purposes hereof, the term "Good Reason"
shall mean: (i) a change in assignment to a geographical location which is
more than 50 miles from the location of the principal executive office of
NBSC at the time of entering into this Agreement; or (ii) material breach
by NBSC of the terms and conditions of this Agreement. Accordingly, any
such termination of employment by ▇▇▇▇▇▇
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for Good Reason shall not relieve NBSC of its obligations to make the
payments required by Section 3 hereof.
5. STOCK OPTION. Subject to Section 4 hereof, Western and NBSC confirm that
certain options held by ▇▇▇▇▇▇ to acquire an additional 5,000 shares at $5.25
per share will vest on January 26, 1998 and that certain options held by ▇▇▇▇▇▇
to acquire an additional 3,333 shares at $6.50 per share will vest on June 27,
1998 (in each case in accordance with the stock option agreements under which
such options were issued).
6. COMPETITION. Neither ▇▇▇▇▇▇ nor any corporation, partnership, trust or
other entity controlled by ▇▇▇▇▇▇ shall:
(a) except for shares of publicly held companies not in excess of 1%
of the total outstanding in any one investee, on or before January 1, 1999
(and notwithstanding any early termination of ▇▇▇▇▇▇'▇ employment under
Section 4), engage in, be employed by, acquire an equity interest in or
start, or otherwise provide any assistance to, directly or indirectly, any
insured depositary institution ("Insured Depositary Institution") in Orange
County in the State of California so long as NBSC or its successors or
assigns remain an Insured Depositary Institution;
(b) at any time following the Effective Time, disclose confidential
information regarding Western or its affiliates to any third party, except
as required by law, regulation or court order or pursuant to the request of
NBSC's (or Western's) Board of Directors; and
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(c) solicit, directly or indirectly, on its own behalf or on behalf of
any other person or entity, management personnel employed by Western or any
Western affiliate for employment with any other Insured Depositary
Institution;
PROVIDED, HOWEVER, that with respect to any of the matters covered in this
Section 6, to the extent that any restriction set forth in this Section 6 is
adjudicated to be invalid or unenforceable in any jurisdiction, the court
making such determination shall have the power to limit, construe or reduce
the duration, scope, activity or area of such provision to the extent
necessary to render such provision enforceable to the maximum extent
permitted by applicable law, such limited form to apply only with respect to
the operation of such provision in the particular jurisdiction in which such
adjudication is made.
7. CONSULTING. Western and ▇▇▇▇▇▇ hereby agree that, effective as of July
1, 1998, ▇▇▇▇▇▇ may be requested to provide consulting services to Western
through December 31, 1998 including advice on, among other things, pending
litigation. ▇▇▇▇▇▇ shall be paid during the term of his engagement as consultant
$1,000 for each day actually spent by ▇▇▇▇▇▇ (if any) in consulting hereunder,
plus reasonable out-of-pocket expenses, payable quarterly in arrears.
8. EFFECT OF TERMINATION. Except as otherwise agreed by the parties,
effective upon the Employment Termination Date ▇▇▇▇▇▇ shall cease to be a
director of NBSC.
9. AMENDMENT OF SHAREHOLDER AGREEMENT. The parties hereto agree that
Section 5 of the Shareholder Agreement, dated as of December 19, 1996, by and
between ▇▇▇▇▇▇ and Western shall be deleted and the following substituted in
place thereof: "Omitted."
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10. NOTICES. All notices, requests, claims, demands or other communications
hereunder shall be in writing and shall be deemed given when delivered
personally, upon receipt of a transmission confirmation if sent by telecopy or
like transmission and on the next business day when sent by a reputable
overnight courier service to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
If to Western:
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: 714/495-3135
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
If to ▇▇▇▇▇▇:
11. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by either of the parties hereto without
the prior written consent of the other party; PROVIDED, HOWEVER, that the
consent of ▇▇▇▇▇▇ shall not be required in the event of a merger or
consolidation of Western (in which Western is not the surviving entity) or a
sale of all or substantially all of the assets of Western if, in any such
transactions, the surviving entity shall assume all of the obligations of
Western hereunder.
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(b) AMENDMENTS. This Agreement may not be changed orally, but only by
an agreement in writing signed by the party or parties against whom enforcement
of any waiver, change, modification or consent is sought or from whom discharge
is sought.
(c) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
(d) HEADINGS. All section headings herein are for convenience of
reference only; they are not part of this Agreement, and no construction or
reference shall be derived therefrom.
(e) CHOICE OF LAW. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of California, without reference to its conflicts of law principles.
(f) PAYMENTS. All payments hereunder shall be net of applicable
withholding taxes and other related amounts, if any.
(g) EXPENSES. Each party shall be responsible for its own fees and
expenses in connection with the preparation and execution of this Agreement. In
any dispute arising out of or relating to this Agreement, the prevailing party
shall be entitled to reasonable attorney's fees in addition to other costs.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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WESTERN BANCORP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: CHAIRMAN
Confirmed as to (i) replacement of the
Prior Agreement and (ii) Section ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Pres
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