EXHIBIT 10.2
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and effective as of
June 25, 1998, by and between EAST-WEST BANK, a California banking corporation
(the "Company"), and XXXXX XXXX (the "Employee"), with respect to the following
facts:
A. The Company desires to be assured of the continued association and
services of the Employee in order to take advantage of her experience, knowledge
and abilities in the Company's business, and is willing to employ the Employee,
and the Employee desires to be so employed, on the terms and conditions set
forth in the Agreement.
B. The Employee from time to time in the course of her employment may
learn trade secrets and other confidential information concerning the Company,
and the Company desires to safeguard such trade secrets and confidential
information against unauthorized use and disclosure.
ACCORDINGLY, on the basis of the representations, warranties and covenants
contained herein, the parties hereto agree as follows:
1. EMPLOYMENT
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1.1 Employment. The Company hereby employs the Employee as
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Executive Vice President and Chief Financial Officer, and the Employee hereby
accepts such employment, on the terms and conditions set forth below, to perform
during the term of the Agreement such services as are required hereunder.
1.2 Duties. The Employee shall render such management services
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to the Company, and shall perform such duties and acts, in each case consistent
with her position as Executive Vice President and Chief Financial Officer, as
reasonably may be required by the Company's Board of Directors (the "Board") in
connection with any aspect of the Company's business. The Employee will have
such authority, power, responsibilities and duties as are inherent to her
positions (and the undertakings applicable to her positions) and necessary to
carry out her responsibilities and the duties required of her hereunder.
1.3 Service to Others. During the period in which the Employee
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is employed by the Company, the Employee shall devote substantially all of her
productive time, ability and attention to, and shall diligently and
conscientiously use her best efforts to further, the Company's business, and
shall not, without the prior written consent of the Board, perform such
services, for any person other than the Company, which would materially
interfere with the performance of her duties hereunder. Notwithstanding the
foregoing provisions of this Section 1.3, while the Employee is employed by the
Company, she may devote reasonable time to activities other than those required
under this Agreement, including the supervision of her personal investments, and
activities involving professional, charitable, educational, religious and
similar types of organizations, speaking engagements, membership on the boards
of directors of other organizations, and similar type activities, to the extent
that such other activities do not inhibit or prohibit the performance of the
Employee's duties under this Agreement, or conflict in any
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material way with the business or interests of the Company; provided, however,
that the Employee shall not serve on the board of any business, or hold any
other position with any business without the consent of the Board.
1.4 Place of Performance. In connection with her employment
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with the Company, the Employee will be based at the principal executive offices
of the Company located in the greater Los Angeles metropolitan area.
2. COMPENSATION
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2.1 Compensation. As the total consideration for the services
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which the Employee renders hereunder, the Employee shall be entitled to the
following:
(a) An annual base salary of $200,000, less income tax and
other applicable withholdings, payable in installments consistent with the
payments practices generally applicable to employees of the Company; provided,
however, that effective as of each January 1 during the term of the Employee's
employment by the Company, the Board and the Employee shall review the annual
base salary and, if appropriate, revise the same (provided that in no event
shall the Salary of the Employee be reduced to an amount that is less than
$200,000 per year, or to an amount that is less than the amount that she was
previously receiving).
(b) An annual bonus for each fiscal year of the Company
payable not more than ninety (90) days after the end of the fiscal year. The
amount of the bonus for each year shall equal forty percent (40%) of the
Employee's annual base salary if the target level of performance criteria is
realized, with a greater percentage payable if performance exceeds the target
level and a lesser percentage payable if performance is at least at the minimum
level but less than target). The exact amount of such increased or reduced
percentage shall be equal to the percentage by which actual performance is below
or above the target level criteria. The performance criteria for determining the
bonus shall be based on achievement of the financial budget for the Company, and
such additional criteria as may be determined by the Board.
(c) Participation in all benefit plans or programs
sponsored by the Company for executive officers in general, including, without
limitation, participation in any group health, medical reimbursement, dental,
disability, accidental death or dismemberment or life insurance plan (the costs,
including premiums, of which shall be paid exclusively by the Company),
vacation, sick leave, pension, profit sharing and salary continuation plans
(including, without limitation, the non-qualified deferred compensation plan and
the 401(k) match restoration plan); provided that the plans and programs shall
be maintained by the Company on terms no less favorable to the Employee than
those plans and programs in effect on the date hereof.
(d) Reimbursement of any and all reasonable and documented
expenses incurred by the Employee from time to time in the performance of her
duties hereunder.
(e) Four (4) weeks paid vacation per year, and all paid
holidays observed by the Company. In scheduling vacations the Employee shall
take into consideration the
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needs and activities of the Company. If the Employee has not been absent from
the Company for two consecutive weeks in the preceding twelve months, no less
than two weeks shall be taken consecutively.
(f) An allowance of $600 per month for use of a luxury
automobile for business and personal use.
(g) The Company will, to the maximum extent permitted by
law, defend, indemnify and hold harmless the Employee and the Employee's heirs,
estate, executors and administrators against any costs, losses, claims, suits,
proceedings, damages or liabilities to which the Employee may become subject
which arise out of, are based upon or relate to the Employee's employment by the
Company (and any predecessor company to the Company), or the Employee's service
as an officer or member of the Board of Directors of the Company (or any
predecessor company to the Company), including without limitation reimbursement
for any legal or other expenses reasonably incurred by the Employee in
connection with investigation and defending against any such costs, losses,
claims, suits, proceedings, damages or liabilities. The Company shall maintain
directors and officers liability insurance in commercially reasonable amounts
(as reasonably determined by the Board), and the Employee shall be covered under
such insurance to the same extent as other senior management employees of the
Company.
(h) Options to purchase 356,625 shares of Common Stock of
the Company on the terms and conditions set forth in Exhibit A hereto, with the
grant date of June 25, 1998, and a $10.00 per-share exercise price.
(i) The Company shall pay for the Employee's financial
counseling services at the rate of $8,000 per calendar year, with such amount to
be payable either for services provided personally to the Employee or, at the
election of the Employee, as a member of a group of executives who are eligible
for this financial counseling payment.
Notwithstanding anything to the contrary contained herein, Employee shall not be
entitled to the payment of any severance benefit to the extent that such payment
shall be deemed a "golden parachute payment" as defined in Section 359.1(f) of
the Federal Deposit Insurance Corporation Rules and Regulations.
2.2 Illness. Subject to the limitations contained in
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Section 3.3, if the Employee shall be unable to render the services required
hereunder on account of personal injuries or physical or mental illness, she
shall continue to receive all payments provided in the Agreement; provided,
however, that any such payments may, at the sole option of the Company, be
reduced by any amount that the Employee receives for the period covered by such
payments as disability compensation under insurance policies, if any, maintained
by the Company or under government programs.
2.3 Excise Tax Gross-Up.
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(a) If the Employee becomes entitled to one or more
payments (with a
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"payment" including, without limitation, the vesting of an option or other non-
cash benefit or property), whether pursuant to the terms of this Agreement or
any other plan, arrangement, or agreement with the Company or any affiliated
company (the "Total Payments"), which are or become subject to the tax imposed
by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or
any similar tax that may hereafter be imposed (the "Excise Tax"), the Company
shall pay to the Employee at the time specified below an additional amount (the
"Gross-up Payment") (which shall include, without limitation, reimbursement for
any penalties and interest that may accrue in respect of such Excise Tax) such
that the net amount retained by the Employee, after reduction for any Excise Tax
(including any penalties or interest thereon) on the Total Payments and any
federal, state and local income or employment tax and Excise Tax on the Gross-up
Payment provided for by this Section 2.3, but before reduction for any federal,
state, or local income or employment tax on the Total Payments, shall be equal
to the sum of (a) the Total Payments, and (b) an amount equal to the product of
any deductions disallowed for federal, state, or local income tax purposes
because of the inclusion of the Gross-up Payment in the Employee's adjusted
gross income multiplied by the highest applicable marginal rate of federal,
state, or local income taxation, respectively, for the calendar year in which
the Gross-up Payment is to be made.
(b) For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount of such Excise Tax:
(i) The Total Payments shall be treated as "parachute payments" within the
meaning of section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of section 280G(b)(1) of the Code shall be
treated as subject to the Excise Tax, unless, and except to the extent
that, in the written opinion of independent compensation consultants or
auditors of nationally recognized standing ("Independent Advisors")
selected by the Company and reasonably acceptable to the Employee, the
Total Payments (in whole or in part) do not constitute parachute
payments, or such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered within
the meaning of section 280G(b)(4) of the Code in excess of the base
amount within the meaning of section 280G(b)(3) of the Code or are
otherwise not subject to the Excise Tax.
(ii) The amount of the Total Payments which shall be treated as subject to the
Excise Tax shall be equal to the lesser of (A) the total amount of the
Total Payments or (B) the total amount of excess parachute payments
within the meaning of section 280G(b)(1) of the Code (after applying
clause (i) above).
(iii) The value of any non-cash benefits or any deferred payment or benefit
shall be determined by the Independent Advisors in accordance with the
principles of sections 280G(d)(3) and (4) of the Code.
(c) For purposes of determining the amount of the Gross-up
Payment, the Employee shall be deemed (A) to pay federal income taxes at the
highest marginal rate of federal income taxation for the calendar year in which
the Gross-up Payment is to be made; (B) to pay any applicable state and local
income taxes at the highest marginal rate of taxation for the
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calendar year in which the Gross-up Payment is to be made, net of the maximum
reduction in federal income taxes which could be obtained from deduction of such
state and local taxes if paid in such year (determined without regard to
limitations on deductions based upon the amount of the Employee's adjusted gross
income); and (C) to have otherwise allowable deductions for federal, state, and
local income tax purposes at least equal to those disallowed because of the
inclusion of the Gross-up Payment in the Employee's adjusted gross income. In
the event that the Excise Tax is subsequently determined to be less than the
amount taken into account hereunder at the time the Gross-up Payment is made,
the Employee shall repay to the Company at the time that the amount of such
reduction in Excise Tax is finally determined (but, if previously paid to the
taxing authorities, not prior to the time the amount of such reduction is
refunded to the Employee or otherwise realized as a benefit by the Employee) the
portion of the Gross-up Payment that would not have been paid if such Excise Tax
had been applied in initially calculating the Gross-up Payment, plus interest on
the amount of such repayment at the rate provided in section 1274(b)(2)(B) of
the Code. In the event that the Excise Tax is determined to exceed the amount
taken into account hereunder at the time the Gross-up Payment is made (including
by reason of any payment the existence or amount of which cannot be determined
at the time of the Gross-up Payment), the Company shall make an additional
Gross-up Payment in respect of such excess (plus any interest and penalties
payable with respect to such excess) at the time that the amount of such excess
is finally determined.
(d) The Gross-up Payment provided for above shall be paid
on the 30th day (or such earlier date as the Excise Tax becomes due and payable
to the taxing authorities) after it has been determined that the Total Payments
(or any portion thereof) are subject to the Excise Tax; provided, however, that
if the amount of such Gross-up Payment or portion thereof cannot be finally
determined on or before such day, the Company shall pay to the Employee on such
day an estimate, as determined by the Independent Advisors, of the minimum
amount of such payments and shall pay the remainder of such payments (together
with interest at the rate provided in section 1274(b)(2)(B) of the Code), as
soon as the amount thereof can be determined. In the event that the amount of
the estimated payments exceeds the amount subsequently determined to have been
due, such excess shall constitute a loan by the Company to the Employee, payable
on the fifth day after demand by the Company (together with interest at the rate
provided in section 1274(b)(2)(B) of the Code). If more than one Gross-up
Payment is made, the amount of each Gross-up Payment shall be computed so as not
to duplicate any prior Gross-up Payment. The Company shall have the right to
control all proceedings with the Internal Revenue Service that may arise in
connection with the determination and assessment of any Excise Tax and, at its
sole option, the Company may pursue or forego any and all administrative
appeals, proceedings, hearings, and conferences with any taxing authority in
respect of such Excise Tax (including any interest or penalties thereof);
provided, however, that the Company's control over any such proceedings shall be
limited to issues with respect to which a Gross-up Payment would be payable
hereunder, and the Employee shall be entitled to settle or contest any other
issue raised by the Internal Revenue Service or any other taxing authority. The
Employee shall cooperate with the Company in any proceedings relating to the
determination and assessment of any Excise Tax and shall not take any position
or action that would materially increase the amount of any Gross-up Payment
hereunder.
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3. TERM OF EMPLOYMENT AND TERMINATION
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3.1 Term. Unless sooner terminated pursuant to Section 3.2 of
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the Agreement, the term of employment under the Agreement shall be for a period
commencing on the date hereof and ending on the third anniversary date thereof;
provided, however, that such term of employment automatically shall be renewed
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daily, such that at any time the remaining term shall be equal to three years.
However, additional day-to-day renewals may be terminated by either party by
delivering written notice of such termination to the other party; provided that
such cessation of the automatic renewals shall be effective on the date
specified in such written notice; and further provided that such cessation of
the automatic renewals by the Board shall be effective only if it is pursuant to
a performance evaluation of the Employee by the Board or a finding by a bank
regulatory authority in a report of examination or otherwise that management of
the Company is unsatisfactory or inadequate.
3.2 At Will Employment. Each party hereby acknowledges and
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agrees that, except as expressly set forth in Section 3.3, (i) the Employee's
employment under this Agreement is AT WILL and can be terminated at the option
of either the Company or the Employee in their sole and absolute discretion, for
any or no reason whatsoever, with or without cause, and (ii) no representations,
warranties or assurances have been made concerning the length of such employment
by the Company.
3.3 Duties Upon Termination.
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(a) In the event that employment under the Agreement is
terminated, neither the Company nor the Employee shall have any remaining duties
or obligations hereunder, except that (i) the Company shall pay to the Employee,
or her estate, such compensation as is due pursuant to Section 2.1, prorated
through the date of termination, (ii) the Employee shall continue to be bound by
Section 4 of the Agreement and (iii) in the event that such employment is
terminated (A) by the Company for any reason other than "for cause" (as defined
below) or (B) by the Employee with "just reason" (as defined below), the Company
shall pay or provide to the Employee, or her estate, (I) a lump sum payment, not
later than 30 days after such termination of employment, equal to the greater of
(A) the remaining payments due to the Employee under this contract, including
the contributions that would have been made on the Employee's behalf to any
employee benefit plans of the Bank during the remaining term of the agreement or
(B) three times the sum of the Employee's annual salary rate in effect on the
date of termination plus the annual bonus for the most recent fiscal year prior
to the fiscal year in which occurs the Employee's termination of employment, and
(II) participation in all benefit plans and programs sponsored by the Company
for executive officers in general, all as set forth in Section 2.1(c), and all
long-term incentive compensation (including, without limitation, those options
set forth in Section 2.1(h)) shall vest at the date of such termination of
employment.
(b) The Company shall be deemed to have terminated the
employment of the Employee "for cause" if, but only if, such termination (i)
shall result solely from the Employee's continued and willful failure or refusal
to substantially perform her duties in accordance with the terms of the
Agreement and shall have been approved by 66.66% of the
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Board (excluding the Employee); provided, however, that the Employee first shall
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have received written notice specifying the acts or omissions alleged to
constitute such failure or refusal and such failure or refusal continues after
the Employee shall have had reasonable opportunity (but in no event less than
thirty (30) days) to correct the same; (ii) the Employee is subject to a removal
proceedings brought by a bank regulatory authority; or (iii) the Employee is
formally charged with a felony involving dishonesty or moral turpitude;
provided, however, that in the case of clause (ii) next above, if the removal
proceeding is unsuccessful, or in the case of clause (iii) next above, if the
Employee is not convicted of the felony, the Employee shall not be treated as
having been terminated "for cause" and shall be entitled to prompt payment of
all amounts described in clause 3.3(a)(iii). For purposes of this paragraph (b),
no act, or failure to act, on the Employee's part shall be deemed "willful"
unless done, or omitted to be done, by the Employee not in good faith and
without reasonable belief that the Employee's action or omission was in the best
interest of the Company.
(c) The Employee shall be deemed to have terminated her
employment with "just reason" if such termination shall result, in whole or in
part, from any of the following events:
(i) the breach by the Company of any material
provision of this Agreement;
(ii) receipt by the Employee of a notice from the
Company that the Company intends to terminate
employment under this Agreement;
(iii) the failure of a successor or assign of the
Company's rights under this Agreement to assume
the Company's duties hereunder;
(iv) the Company directs the Employee to perform
any unlawful act;
(v) the Employee ceases to be a member of the
Board;
(vi) the Employee's duties are materially reduced;
(vii) a relocation of Employee's principal place of
employment by more than 25 miles by automobile
from 000 Xxxxxxxxxx Xxxxx, Xxx Xxxxxx,
Xxxxxxxxxx;
(viii) liquidation or dissolution of the Bank; or
(ix) the death or disability of the Employee.
(d) The Employee shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise. The
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Company shall not be entitled to set off against the amounts payable to the
Employee under this Agreement any amounts owed to the Company by the Employee,
any amounts earned by the Employee in other employment after termination of her
employment with the Company, or any amounts which might have been earned by the
Employee in other employment had she sought such other employment.
4. TRADE SECRETS
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4.1 Trade Secrets. The Employee shall not, without the prior
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written consent of the Board in each instance, disclose or use in any way,
during the term of her employment by the Company and for one (1) year
thereafter, except as required in the course of such employment, any
confidential business or technical information or trade secret of the Company
acquired in the course of such employment, whether or not patentable,
copyrightable or otherwise protected by law, and whether or not conceived of or
prepared by her (collectively, the "Trade Secrets") including, without
limitation, any information concerning customer lists, products, procedures,
operations, investments, financing, costs, employees, accounting, marketing,
salaries, pricing, profits and plans for future development, the identity,
requirements, preferences, practices and methods of doing business of specific
parties with whom the Company transacts business, and all other information
which is related to any product, service or business of the Company, other than
information which is generally known in the industry in which the Company
transacts business or is acquired from public sources; all of which Trade
Secrets are the exclusive and valuable property of the Company; provided,
however, that, following termination of employment, the Employee shall be
entitled to retain a copy of any rolodex or other compilation maintained by her
of the names of business contacts with their addresses, telephone numbers and
similar information.
4.2 Tangible Items. All files, accounts, records, documents,
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books, forms, notes, reports, memoranda, studies, compilations of information,
correspondence and all copies, abstracts and summaries of the foregoing, and all
other physical items related to the Company, other than a merely personal item,
whether of a public nature or not, and whether prepared by the Employee or not,
are and shall remain the exclusive property of the Company and shall not be
removed from the premises of the Company, except as required in the course of
employment by the Company, without the prior written consent of the Board in
each instance, and the same shall be promptly returned to the Company by the
Employee on the expiration or termination of her employment by the Company or at
any time prior thereto upon the request of the Company.
4.3 Injunctive Relief. The Employee hereby acknowledges and
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agrees that it would be difficult to fully compensate the Company for damages
resulting from the breach or threatened breach of this Section 4 and,
accordingly, that the Company shall be entitled to seek temporary and injunctive
relief, including temporary restraining orders, preliminary injunctions and
permanent injunctions, to enforce such provisions without the necessity of
proving actual damages and without the necessity of posting any bond or other
undertaking in connection therewith. This provision with respect to injunctive
relief shall not, however, diminish the Company's right to claim and recover
damages.
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4.4 "Company". For the purposes of this Section 4 of the
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Agreement only, the term "Company" shall mean collectively East-West Bank, a
California banking corporation, and its successors, assigns and nominees, and
all individuals, corporations and other entities that directly, or indirectly
through one or more intermediaries, control or are controlled by or are under
common control with any of the foregoing.
5. MISCELLANEOUS
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5.1 Severable Provisions. The provisions of the Agreement
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are severable, and if any one or more provisions may be determined to be illegal
or otherwise unenforceable, in whole or in part, the remaining provisions, and
any partially unenforceable provisions to the extent enforceable, shall
nevertheless be binding and enforceable.
5.2 Successors and Assigns. All of the terms, provisions and
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obligations of the Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective heirs, representatives, successors
and assigns. Notwithstanding the foregoing, neither the Agreement nor any rights
hereunder shall be assigned, pledged, hypothecated or otherwise transferred by
the Employee without the prior written consent of the Board in each instance.
5.3 Governing Law. The validity, construction and
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interpretation of the Agreement shall be governed in all respects by the laws of
the State of California applicable to contracts made and to be performed within
that State.
5.4 Headings. Section and subsection headings are not to be
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considered part of the Agreement and are included solely for convenience and
reference and in no way define, limit or describe the scope of the Agreement or
the intent of any provisions hereof.
5.5 Entire Agreement. The Agreement constitutes the entire
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agreement between the parties hereto pertaining to the subject matter hereof,
and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, relating to the subject matter of the
Agreement. No supplement, modification, waiver or termination of the Agreement
shall be valid unless executed by the party to be bound thereby. No waiver of
any of the provisions of the Agreement shall be deemed to or shall constitute a
waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise expressly provided.
5.6 Notice. Any notice or other communication required or
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permitted hereunder shall be in writing and shall be deemed to have been given
(i) if personally delivered, when so delivered, (ii) if mailed, one (1) week
after having been placed in the United States mail, registered or certified,
postage prepaid, addressed to the party to whom it is directed at the address
set forth below or (iii) if given by telex or telecopier, when such notice or
other communication is transmitted to the telex or telecopier number specified
below and the appropriate answerback or telephonic confirmation is received.
Either party may change the address to which such notices are to be addressed by
giving the other party notice in the manner herein set forth.
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5.7 Attorneys' Fees. The Company will reimburse the Employee
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for the reasonable attorney fees incurred in connection with the negotiation of
this Agreement. In the event any party takes legal action to enforce any of the
terms of the Agreement, the unsuccessful party to such action shall pay the
successful party's expenses, including attorneys' fees, incurred in such action.
5.8 Third Parties. Nothing in the Agreement, expressed or
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implied, is intended to confer upon any person other than the Company or the
Employee any rights or remedies under or by reason of the Agreement.
5.9 Arbitration. Any controversy arising out of or relating
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to this Agreement or the transactions contemplated hereby shall be referred to
arbitration before the American Arbitration Association strictly in accordance
with the terms of this Agreement and the substantive law of the State of
California. The board of arbitrators shall convene at a place mutually
acceptable to the parties in the State of California and, if the place of
arbitration cannot be agreed upon, arbitration shall be conducted in Los
Angeles. The parties hereto agree to accept the decision of the board of
arbitrators, and judgment upon any award rendered hereunder may be entered in
any court having jurisdiction thereof. Neither party shall institute a
proceeding hereunder until that party has furnished to the other party, by
registered mail, at least thirty (30) days' prior written notice of its intent
to do so.
5.10 Construction. This Agreement was reviewed by legal
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counsel for each party hereto and is the product of informed negotiations
between the parties hereto. If any part of this Agreement is deemed to be
unclear or ambiguous, it shall be construed as if it were drafted jointly by the
parties. Each party hereto acknowledges that no party was in a superior
bargaining position regarding the substantive terms of this Agreement.
5.11 Consent to Jurisdiction. Subject to Section 5.9, each
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party hereto, to the fullest extent it may effectively do so under applicable
law, irrevocably (i) submits to the exclusive jurisdiction of any court of the
State of California or the United States of America sitting in the City of Los
Angeles over any suit, action or proceeding arising out of or relating to this
Agreement, (ii) waives and agrees not to assert, by way of motion, as a defense
or otherwise, any claim that it is not subject to the jurisdiction of any such
court, any objection that it may now or hereafter have to the establishment of
the venue of any such suit, action or proceeding brought in any such court and
any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum, (iii) agrees that a judgment in any such
suit, action or proceeding brought in any such court shall be conclusive and
binding upon such party and may be enforced in the courts of the United States
of America or the State of California (or any other courts to the jurisdiction
of which such party is or may be subject) by a suit upon such judgment and (iv)
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof by registered or certified air mail, postage prepaid,
return receipt requested, to the address of such party specified in or
designated pursuant to Section 5.6. Each party agrees that such service (i)
shall be deemed in every respect effective service of process upon such party in
any such suit, action or proceeding and (ii) shall, to the fullest extent
permitted by law, be taken and held to be valid personal service upon and
personal delivery to such party.
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5.12 Legal Counsel. EACH PARTY HEREBY ACKNOWLEDGES THAT IN
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CONNECTION WITH THIS AGREEMENT IT HAS SOUGHT THE ADVICE OF SUCH INDEPENDENT
LEGAL COUNSEL AS IT SHALL HAVE DETERMINED TO BE NECESSARY OR ADVISABLE IN ITS
SOLE AND ABSOLUTE DISCRETION.
IN WITNESS WHEREOF, the parties hereto have caused the Agreement
to be executed as of the date and year first set forth above.
EAST-WEST BANK
By: _______________________________
Authorized Representative
Xxxxxxxxxx Xxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Telecopier Number: (000) 000-0000
___________________________________
XXXXX XXXX
_____________________________
_____________________________
Telecopier Number: ____________
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EXHIBIT A
EAST WEST BANK
1998 EMPLOYEE STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
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This Stock Option Agreement ("Agreement") is made and entered into as
of the Date of Grant indicated below by and between East West Bank, as a
California banking corporation (the "Company"), and the person named below
("Participant").
WHEREAS, Participant is an employee, director or independent
contractor of the Company or one or more of its subsidiaries; and
WHEREAS, pursuant to the Company's 1998 Employee Stock Incentive Plan
(the "Plan"), the committee of the Board of Directors of the Company
administering the Plan (the "Committee") has approved the grant to Participant
of an option to purchase shares of the common stock of the Company (the "Common
Stock"), on the terms and conditions set forth herein; and
WHEREAS, the amount of compensation the recipient of the Option (as
defined below) could receive hereunder is based solely on an increase in the
value of the stock of the Company after the date of the grant;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto agree as follows:
1. Grant Of Option: Certain Terms and Conditions. The Company
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hereby grants to Participant, and Participant hereby accepts, as of the Date of
Grant, an option to purchase the number of shares of Common Stock indicated
below (the "Option Shares") at the Exercise Price per share indicated below,
which option shall expire at 5:00 p.m., California time, on the Expiration Date
indicated below and shall be subject to all of the terms and conditions set
forth in this Agreement (the "Option"). On each anniversary of the Date of
Grant, the option shall become exercisable to purchase, and shall vest with
respect to, that number of Option Shares (rounded to the nearest whole share)
equal to the total number of Options Shares multiplied by the Annual Vesting
Rate indicated below.
Participant: Xxxxx Xxxx
Date of Grant: June 25, 1998
Number of shares purchasable: 356,625 shares
Exercise Price per share: $10.00
Annual Vesting Rate: 25%
Expiration Date: June 25, 2008
The Option is not intended to qualify as an incentive stock option under Section
422 of the Internal Revenue Code of 1986, as amended (an "Incentive Stock
Option").
2. Acceleration and Termination of Option.
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(A) Change in Control. The Option shall become fully vested and
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exercisable upon the date of a Change in Control, if the date on which the
Employee's employment with the Company and all of its subsidiaries (such event
shall be referred to herein as the "Termination" of Employee's "Employment")
does not occur before the Change in Control. "Change in Control" shall mean the
first to occur of the following events:
(I) any date upon which the directors of the Company who
were last nominated by the Board of Directors (the "Board") for
election as directors cease to constitute a majority of the
directors of the Company;
(II) the date of the first public announcement that any
person or entity, together with all Affiliates and Associates (as
such capitalized terms are defined in Rule 12b-2 promulgated
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of such person or entity, shall have become the
Beneficial Owner (as defined in Rule 13d-3 promulgated under the
Exchange Act) of voting securities of the Company representing
25% or more of the voting power of the Company (as a "25%
Stockholder"); provided, however, that the terms "person" and
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"entity," as used in this clause (B), shall not include (1) the
Company or any of its subsidiaries, (2) any employee benefit plan
of the Company or any of its subsidiaries, (3) any entity holding
voting securities of the Company for or pursuant to the terms of
any such plan, (4) any person or entity if the transaction that
resulted in such person or entity becoming a 25% Stockholder was
approved in advance by
the Board or (5) any person or entity who is a 25% Stockholder on
the date of adoption of the Plan by the Board; or
(III) a reorganization, merger or consolidation of the
Company (other than a reorganization, merger or consolidation the
sole purpose of which is to change the Company's domicile solely
within the United States) the consummation of which results in
the outstanding securities of any class then subject to the
Option being exchanged for or converted into cash, property or a
different kind of securities; provided, however, that a Change in
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Control shall not be deemed to occur if, as a result of such
reorganization, merger or consolidation of the Company, the
securities of any class then subject to the Option (the "Option
Securities") are exchanged for or converted into securities that
represent the same beneficial ownership of the Company and
possess the same voting, liquidation and other rights to which
the Option Securities were entitled immediately prior to such
reorganization, merger or consolidation.
(B) Termination of Employment
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(I) Termination. If the Employee's Employment is
-----------
Terminated for any reason, including termination with "just reason" (as defined
in the Employment Agreement), and including termination for non-renewal of the
Employment Agreement term, but not including termination by the Company "for
cause" (as defined in the Employment Agreement), and not including voluntary
resignation by the Employee, the Option shall become fully vested and
exercisable upon such termination, and shall remain exercisable (by the Employee
or, in the event of the Employee's death, the Employee's estate or beneficiary
designated by the Employee) until the Expiration Date. For purposes of this
Option Agreement, the "Employment Agreement" shall be the employment agreement
between the Employee and the Company dated June 25, 1998.
(II) Voluntary Resignation. If Employee's Employment is
---------------------
Terminated by reason of Employee's voluntary resignation, (A) the portion of the
Option that has not vested on or prior to the date of such Termination of
Employment shall terminate on such date and (B) the remaining vested portion of
the Option shall continue to be exercisable (by the Employee or, in the event of
the Employee's death, the Employee's estate or beneficiary designated by the
Employee) until the three-year anniversary of the date of such Termination of
Employment, at which time it shall terminate.
(III) Termination for Cause. If Employee's Employment is
---------------------
Terminated by the Company "for cause" (as defined in the Employment Agreement),
then the Option shall terminate upon the date of such Termination of Employment.
(C) Other Events Causing Acceleration of Option. The Committee,
-------------------------------------------
in its sole discretion, may accelerate the exercisability of the Option at any
time and for any reason.
(D) Other Events Causing Termination of Option. Notwithstanding
------------------------------------------
anything to the contrary contained in this Agreement, the Option shall terminate
upon the consummation of any of the following events, or, if later, the
thirtieth day following the first date upon which such event shall have been
approved by both the Board and the shareholders of the Company:
(I) the dissolution or liquidation of the Company; or
(II) as a sale of substantially all of the property and
assets of the Company, unless the terms of such sale shall provide otherwise.
3. Adjustments. In the event that the outstanding securities of
-----------
the class then subject to the Option are increased, decreased or exchanged for
or converted into cash, property or a different number or kind of securities, or
cash, property or securities are distributed in respect of such outstanding
securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, reclassification, dividend (other than a
regular cash dividend) or other distribution, stock split, reverse stock split
or the like, or in the event that substantially all of the property and assets
of the Company are sold, then, unless such event shall cause the Option to
terminate pursuant to Section 2(d) hereof, the Committee shall make appropriate
and proportionate adjustments in the number and type of shares or other
securities or cash or other property that may thereafter be acquired upon the
exercise of the Option; provided, however, that any such adjustments in the
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Option shall be made without changing the aggregate Exercise Price of the then
unexercised portion of the Option.
4. Exercise.
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(A) The Option shall be exercisable during Participant's lifetime
only by Participant or by his or her guardian or legal representative, and after
Participant's death only by the person or entity entitled to do so under
Participant's last will and testament or applicable intestate law. The Option
may only be exercised by the delivery to the Company of a written notice of such
exercise, which notice shall specify the number of Option Shares to be purchased
(the "Purchased Shares") and the aggregate Exercise Price for such shares (the
"Exercise Notice"), together with payment in full of such aggregate Exercise
Price in cash or by check payable to the Company; provided, however, that
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payment of such aggregate Exercise Price may instead be made, in whole or in
part, by the delivery to the Company of a certificate or certificates
representing shares of Common Stock, duly endorsed or accompanied by duly
executed stock powers, which delivery effectively transfers to the Company good
and valid title to such shares, free and clear of any pledge, commitment, lien,
claim or other encumbrance (such shares to be valued on the basis of the
aggregate Fair Market Value (as defined below) thereof on the date of such
exercise), provided that the Company is not then prohibited from purchasing or
acquiring such shares of Common Stock.
(B) The "Fair Market Value" of a Common Share on any date (the
"Determination Date") shall be equal to the closing price per Common Share on
the business day
immediately preceding the Determination Date, as reported in The Wall Street
Journal, Western Edition, or, if no closing price was so reported for such
immediately preceding business day, the closing price for the next preceding
business day for which a closing price was so reported, or, if no closing price
was so reported for any of the 30 business days immediately preceding the
Determination Date, the average of the high bid and low asked prices per Common
Share on the business day immediately preceding the Determination Date in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotations System ("NASDAQ") or such other system then
in use, or, if the Common Shares were not quoted by any such organization on
such immediately preceding business day, the average of the closing bid and
asked prices on such day as furnished by a professional market maker making a
market in the Common Shares selected by the Board.
5. Payment of Withholding Taxes. If the Company becomes obligated
----------------------------
to withhold an amount on account of any tax imposed as a result of the exercise
of the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax, then Participant shall, on the first day upon which the Company becomes
obligated to pay such amount to the appropriate taxing authority, pay such
amount to the Company in cash or by check payable to the Company, or by shares
of Company stock owned by the Employee or otherwise distributable pursuant to
the exercise of the Option (except that, if shares are used to satisfy such
withholding obligation, the Company may impose such reasonable restrictions
relating to the delivery of mature shares as may be necessary to avoid the
Company incurring a charge to earnings as a result of such use of shares).
6. Notices. All notices and other communications required or
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permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given if delivered personally or five days after mailing by certified
or registered mail, postage prepaid, return receipt requested, to the Company at
000 Xxxxxxxxxx Xxxxx, Xxx Xxxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial
Officer, or to Participant at the address set forth beneath his or her signature
on the signature page hereto, or at such other addresses as they may designate
by written notice in the manner aforesaid.
7. Stock Exchange Requirements: Applicable Laws. Notwithstanding
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anything to the contrary in this Agreement, no shares of stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, shall be issued or delivered if (i) such shares have not been admitted
to listing upon official notice of issuance on each stock exchange upon which
shares of that class are then listed or (ii) in the opinion of counsel to the
Company, such issuance or delivery would cause the Company to be in violation of
or to incur liability under any federal, state or other securities law, or any
requirement of any stock exchange listing agreement to which the Company is a
party, or any other requirement of law or of any administrative or regulatory
body having jurisdiction over the Company.
8. Nontransferability. Neither the Option nor any interest therein
------------------
may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise
transferred in any manner other than by will or the laws of descent and
distribution.
9. Plan. The Option is granted pursuant to the Plan, as in effect
----
on the Date of Grant, and is subject to all the terms and conditions of the
Plan, as the same may be amended from time to time; provided, however, that no
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such amendment shall deprive Participant, without his or her consent, of the
Option or of any of Participant's rights under this Agreement. The
interpretation and construction by the Committee of the Plan, this Agreement,
the Option and such rules and regulations as may be adopted by the Committee for
the purpose of administering the Plan shall be final and binding upon
Participant. Until the Option shall expire, terminate or be exercised in full,
the Company shall, upon written request therefor, send a copy of the Plan, in
its then-current form, to Participant or any other person or entity then
entitled to exercise the Option.
10. Shareholder Rights. No person or entity shall be entitled to
------------------
vote, receive dividends or be deemed for any purpose the holder of any Option
Shares until the Option shall have been duly exercised to purchase such Option
Shares in accordance with the provisions of this Agreement.
11. Employment or Contract Rights. No provision of this Agreement or
-----------------------------
of the Option granted hereunder shall (i) confer upon Participant any right to
continue in the employ of or contract with the Company or any of its
subsidiaries, (ii) affect the right of the Company and each of its subsidiaries
to terminate the employment or contract of Participant, with or without cause,
or (iii) confer upon Participant any right to participate in any employee
welfare or benefit plan or other program of the Company or any of its
subsidiaries other than the Plan. PARTICIPANT HEREBY ACKNOWLEDGES AND AGREES
THAT THE COMPANY AND EACH OF ITS SUBSIDIARIES MAY TERMINATE THE EMPLOYMENT OR
CONTRACT OF PARTICIPANT AT ANY TIME AND FOR ANY REASON, OR FOR NO REASON, UNLESS
PARTICIPANT AND THE COMPANY OR SUCH SUBSIDIARY ARE PARTIES TO A WRITTEN
EMPLOYMENT OR INDEPENDENT CONTRACTOR AGREEMENT THAT EXPRESSLY PROVIDES
OTHERWISE.
12. Governing Law. This Agreement and the Option granted hereunder
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shall be governed by and construed and enforced in accordance with the laws of
the State of California without reference to choice or conflict of law
principles.
IN WITNESS WHEREOF, the Company and Participant have duly executed
this Agreement as of the Date of Grant.
EAST-WEST BANK
By _________________________
Authorized Representative
PARTICIPANT
____________________________
Signature of Xxxxx Xxxx
