THIS DOCUMENT IS A COPY OF THE EMPLOYMENT AGREEMENT FILED ON MAY 15,
1996 PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made effective April 1, 1995,
between LIBERTY NATIONAL BANK ("Bank"), having a principal place of
business at One Pacific Plaza, 7777 Center Avenue, Huntington Beach,
California 92647, and CATHERINE C. CLAMPITT ("Senior Vice
President"), whose residence is 200 Paris Lane, #316, Newport Beach,
California 92663.
W I T N E S S E T H
WHEREAS, Bank is a national banking association duly organized,
validly existing, and in good standing under the laws of the United
States of America, with power to own property and carry on its
business as it is now being conducted;
WHEREAS, Bank desires to continue to avail itself of the skill,
knowledge and experience of Senior Vice President in order to insure
the successful management of its business; and
WHEREAS, the parties hereto desire to specify the terms of Senior
Vice President's continued employment by Bank:
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, it is agreed that from and after April 1,
1995, (the "Effective Date"), the following terms and conditions
shall apply to Senior Vice President's employment:
A G R E E M E N T
A. TERM OF EMPLOYMENT
1. Term. Bank hereby employs Senior Vice President and
Senior Vice President hereby accepts employment with Bank for the
period commencing on the Effective Date and running through and
including March 31, 1997 (the "Term"), subject,
however, to prior termination of this Agreement as permitted by law
or as hereinafter provided. Where used herein, "Term" shall refer
to the entire period of employment of Senior Vice President by Bank
hereunder, whether for the period provided above, or whether
terminated earlier.
B. DUTIES OF SENIOR VICE PRESIDENT
1. Duties. Subject to the powers by law vested in the Board
of Directors of Bank and in Bank's shareholders, Senior Vice
President shall perform the duties of Senior Vice President and SBA
Department Manager of Bank. In that capacity, Senior Vice President
is primarily responsible for managing all facets of the SBA Loan
Department. Senior Vice President is also responsible for SBA loan
marketing, packaging, underwriting, documentation and disbursement.
Senior Vice President's duties include, but are not limited to,
those duties specified on Bank's Job Description for the position of
SBA Department Manager/Senior Vice President, a copy of which is
attached as Exhibit "A" hereto.
The duties and position of Senior Vice President may be
changed from time to time by the Board of Directors of Bank without
resulting in a rescission of this Agreement. Notwithstanding any
such change from the duties originally assigned and specified above,
or hereafter assigned, the employment of Senior Vice President shall
be construed as continuing under this Agreement as modified. During
the Term, Senior Vice President shall perform exclusively the
services herein contemplated to be performed by Senior Vice President
faithfully, diligently and to the best of Senior Vice President's
ability, consistent with the highest standards of the banking
industry and in compliance with all applicable laws, Bank's Articles
of Association and Bylaws and Bank's policies, as modified from time
to time.
2. Conflicts of Interests. Except as permitted by the prior
written consent of the Board of Directors of Bank, Senior Vice
President shall devote Senior Vice President's entire productive
time, ability and attention to the business of Bank during the Term
and Senior Vice President shall not directly or indirectly render any
services of a business, commercial or professional nature to any
other person, firm or corporation whether for compensation or
otherwise, which are in conflict with Bank's interest.
C. COMPENSATION
1. Base Salary. For Senior Vice President's services
hereunder, Bank shall pay or cause to be paid as base salary to
Senior Vice President the amount of Four Thousand One Hundred Sixty-Six Dollars
and Sixty-Seven Cents ($4,166.67) per month during the
Term, beginning with the Effective Date. Said salary shall be paid
in equal pro rata, bi-monthly installments in conformity with Bank's
normal payroll period. Senior Vice President's base salary shall be
subject to review and adjustment by the Board of Directors at any
time, and no less often than concurrently with her annual review.
2. Commissions. Senior Vice President shall receive
commissions for SBA and Piggyback 7a 504 (a non-SBA guaranteed
first trust deed on commercial property, combined and backed by an
SBA guaranteed second deed of trust) Loans submitted by her to the
SBA for approval, based upon the premium Bank receives from the sale
of the loan on the secondary market. Senior Vice President shall be
paid 11% of the premium on Broker SBA and Piggyback transactions on
SBA and Piggyback Loans, 15% of the premium on Non-Broker SBA and
Piggyback transactions and 13% of the premium on Bank employee
referred SBA and Piggyback transactions submitted by her.
Commissions are subject to penalties applied against earned
commissions for documentation deficiency resulting in a repair during
the first year of a loan limited to 10% of paid commission
3. Year End Bonus. Senior Vice President shall be eligible
for a bonus equivalent to 1.5% of SBA department premiums, as of
December 31 of each year, provided, however, that Senior Vice
President shall not be eligible or qualified to receive a Year End
Bonus unless she continues to be employed by the Bank at the
conclusion of the annual audit by which the department premium is
verified. If, for any reason, Senior Vice President is not employed
by the Bank at the end of a calendar year and at the end of the
subsequent annual audit, Senior Vice President shall not be eligible
or qualified for any Year End Bonus, or any part thereof.
4. Automobile Allowance. Senior Vice President shall
receive an automobile allowance of $750.00 per month. Said allowance
shall be paid in equal pro rata, bi-monthly installments in
conformity with Bank's normal payroll period.
5. Automobile Telephone Reimbursement. Senior Vice
President shall be reimbursed for automobile telephone charges
directly related to Bank business up to a maximum of $350.00 per
month.
D. BENEFITS
1. Vacation and Sick Pay. Senior Vice President shall be
entitled to vacation during the Term, in accordance with Bank's
Personnel Policy; provided, however, that at least two (2) weeks of
said vacation (the "Mandatory Vacation"), shall be taken
consecutively. Senior Vice President shall also be entitled to sick
pay in accordance with Bank's Personnel Policy.
2. Group Medical and Life Insurance Benefits. During the
Term, Bank shall provide for medical, accident, disability and life
insurance benefits to Senior Vice President in accordance with Bank's
standard employee benefits.
E. TERMINATION
1. Termination by the Board of Directors. Senior Vice
President is an officer of Bank, appointed by the Board of Directors.
Under the National Bank Act and this Agreement, Senior Vice President
serves at the pleasure of the Board of Directors and is subject to
dismissal by the Board at any time, without further obligation or
liability to Senior Vice President. In the event Bank elects to
dismiss Senior Vice President and terminate this Agreement, upon
Senior Vice President's execution and delivery to Bank of an original
Separation Agreement and General Release in a form and with content
acceptable to the Board of Directors, Senior Vice President shall be
entitled to compensation equal to four (4) months' base salary, to
be paid in four (4) equal monthly installments, beginning on the
first day of the month following expiration of the Revocation Period
provided for in the Separation Agreement and General Release and
continuing thereafter on the first day of the three (3) subsequent
months.
2. Action by Supervisory Authority. This Agreement shall
terminate immediately without further liability or obligation to
Senior Vice President or Bank:
(a) If Bank is closed or taken over by the Comptroller
of the Currency or other supervisory authority, including the Federal
Deposit Insurance Corporation; or
(b) If such supervisory authority should exercise its
cease and desist powers to remove Senior Vice President from office.
3. Merger or Transfer of Assets. This Agreement shall not
be terminated due to: (a) a merger where Bank is not the surviving
corporation; (b) a consolidation; or (c) a transfer of all or
substantially all of the assets of Bank. In the case of dissolution,
this Agreement shall be terminated.
4. Termination by Senior Vice President. Senior Vice
President may terminate her employment with Bank, and this Agreement,
upon sixty (60) days written notice of termination to Bank.
5. Effect of Termination. In the event of the termination
of Senior Vice President or this Agreement prior to the completion
of the Term for any of the reasons specified in this Paragraph E,
Senior Vice President shall be entitled to the salary earned by
Senior Vice President prior to the Effective Date of Termination, as
determined by the Board of Directors, computed pro rata up to and
including that date, and accrued but unused vacation time (to the
extent accumulated in accordance with Paragraph D.1); but Senior Vice
President shall be entitled to no further compensation for services
rendered after the Effective Date of Termination. Senior Vice
President shall receive commissions for SBA loans submitted by her
to the SBA and/or approved by the Bank for submission to the SBA
prior to the Effective Date of Termination. Such commissions will
be paid as previously outlined in Paragraph C, Sub-paragraph 2.
F. GENERAL PROVISIONS
1. Trade Secrets. During the Term, Senior Vice President
will have access to and become acquainted with what Senior Vice
President and Bank acknowledge are trade secrets, to wit, knowledge
or data concerning Bank, including its operations and business, and
its customers' financial condition, their financial needs, and
methods of doing business. Senior Vice President shall not disclose
any of the aforesaid trade secrets, directly or indirectly, or use
them in any way, except as required in the course of Senior Vice
President's employment with Bank.
2. Covenant Not to Interfere. Senior Vice President hereby
covenants and agrees that she will not now, or for a period of one
(1) year after termination, disrupt, damage, impair or interfere with
the business of Bank, whether by way of interfering with or raiding
its employees, disrupting its relationships with customers, , loan
packagers, representatives, vendors, or otherwise. Senior Vice
President furthers covenants and agrees that she will not now, or for
a period of four (4) months after termination, disrupt, damage,
impair or interfere with the business of Bank by way of disrupting
its relationships with brokers. After termination of employment,
Senior Vice President is not, however, restricted from being employed
by or engaged in a competing business.
3. Return of Documents. Senior Vice President expressly
agrees that all manuals, documents, files, reports, studies,
instruments or other materials used and/or developed by Senior Vice
President during her employment with Bank are solely the property of
Bank, and that Senior Vice President has no right, title or interest
therein. Upon termination of Senior Vice President's employment,
Senior Vice President or Senior Vice President's representative shall
promptly deliver possession of all of said property to Bank in good
condition.
4. Notices. Any notice, request, demand or other
communication required or permitted hereunder shall be deemed to be
properly given when personally served in writing, when deposited in
the United States mail, postage prepaid, or when communicated to a
public telegraph company for transmittal, addressed to the party at
the address appearing at the beginning of this Agreement. Either
party may change its/her address by written notice in accordance with
this paragraph.
5. Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their
respective executors, administrators, successors and assigns.
6. Applicable Law. Except to the extent governed by the
laws of the United States, this Agreement is to be governed by and
construed under the laws of the State of California.
7. Captions and Paragraph Headings. Captions and paragraph
headings used herein are for convenience only and are not a part of
this Agreement and shall not be used in construing it.
8. Invalid Provisions. Should any provision of this
Agreement for any reason be declared invalid, void, or unenforceable
by a court of competent jurisdiction, the validity and binding effect
of any remaining portion shall not be affected, and the remaining
portions of this Agreement shall remain in full force and effect as
if this Agreement had been executed with said provision eliminated.
9. Entire Agreement. This Agreement 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 Senior Vice President by Bank,
except any Stock Option Agreements between Senior Vice President and
Bank. 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 or binding. This Agreement may not be modified or amended
by oral agreement, but only by an agreement in writing signed by the
Chairman of the Board and Senior Vice President.
10. Arbitration. If any dispute, controversy or claim arises
out of or relates to this contract, the parties agree first to try
to settle the dispute by mediation under the Rules of Judicial
Arbitration & Mediation Services (JAMS) before resorting to
arbitration. Thereafter, any dispute, controversy or claim not
resolved by mediation shall be settled by binding arbitration in
accordance with the Rules of JAMS, and judgment upon the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
(a) The arbitrator shall determine which is the
prevailing party and shall include in the award that party's actual
attorneys' fees and costs.
(b) As soon as practicable after selection of the
arbitrator, the arbitrator or his or her designated representative
shall determine a reasonable estimate of anticipated fees and costs
of the arbitrator, and render a statement to each party setting forth
that party's prorata share of said fees and costs. Thereafter, each
party shall, within ten (10) days of receipt of said statement,
deposit said sum with the arbitrator. Failure of any party to make
such a deposit shall result in a forfeiture by the non-depositing
party of the right to prosecute or defend the claim which is the
subject of the arbitration, but shall not otherwise serve to abate,
stay or suspend the arbitration proceedings.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
LIBERTY NATIONAL BANK
By /s/ Richard M. Wilbur
CATHERINE C. CLAMPITT
By /s/ Catherine C. Clampitt