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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of _________ , 1996
by and between BANK OF SALINAS, a California banking corporation ("Employer"),
and ("Employee").
RECITALS
WHEREAS, Employer and Employee desire to enter into an agreement for
the purposes of engaging the services of Employee by reason of his experience,
training and ability in the commercial banking industry;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the Employer and Employee agree as follows:
AGREEMENT
1. Term of Employment. Employer employs Employee and Employee
hereby accepts employment with Employer, upon the terms and conditions
hereinafter set forth, for a period of three (3) years from the date hereof,
and on each anniversary date thereafter, the term of this Agreement shall be
deemed automatically extended for an additional one (1) year term, subject to
the termination provisions of paragraph 16.
2. Duties and Obligations of Employee. Employee shall serve as
the _______________________ of Employer and shall perform the customary duties
of such office in the commercial banking industry as may from time to time be
reasonably requested of him by the Board of Directors of Employer in addition
to the following:
(a) Participating in community affairs which are
beneficial to the Employer;
(b) Maintaining a good relationship with shareholders and
the Boards of Directors of Employer, its parent holding company and affiliates
thereof; and
(c) Maintaining a good relationship with regulatory
agencies and governmental authorities having jurisdiction over Employer, its
parent holding company and affiliates thereof.
3. Devotion to Employer's Business.
(a) Employee shall devote his full business time,
ability, and attention to the business of Employer during the term of this
Agreement and shall not during the term of this Agreement, without the prior
written consent of Employer's Board of Directors, engage in any other business
activities, duties, or pursuits whatsoever, or directly or indirectly render
any services of a business, commercial, or professional nature to any other
person or organization, whether for compensation or otherwise, which are in
conflict with Employer's business. However, the expenditure of reasonable
amounts of time for educational, charitable, or professional activities shall
not be deemed a breach of this Agreement if those activities do not
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materially interfere with the services required of Employee under this
Agreement. Nothing in this Agreement shall be interpreted to prohibit Employee
from making passive personal investments. However, Employee shall not directly
or indirectly acquire, hold, or retain any material interest in any business
competing with or similar in nature to the business of Employer.
(b) Employee agrees to conduct himself at all times with
due regard to public conventions and morals. Employee further agrees not to do
or commit any act that will reasonably tend to shock or offend the community,
or to prejudice Employer or the banking industry in general.
(c) Employee hereby represents and agrees that the
services to be performed under the terms of this Agreement are of a special,
unique, unusual, extraordinary, and intellectual character that gives them a
peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages in an action at law. Employee therefore expressly agrees
that Employer, in addition to any other rights or remedies that Employer may
possess, shall be enticed to injunctive and other equitable relief to prevent
or remedy a breach of this Agreement by Employee.
4. Noncompetition by Employee. Employee shall not, during the
term of this Agreement, directly or indirectly, either as an employee,
employer, consultant, agent, principal, stockholder, officer, director, or in
any other individual or representative capacity, engage or participate in any
competitive banking or financial services business.
5. Indemnification for Negligence or Misconduct. Employee shall
indemnify and hold Employer harmless from all liability for loss, damage, or
injury to persons or property resulting from the gross negligence or
intentional misconduct of the Employee.
6. Disclosure of Information. Employee shall not, either before
or after termination of this Agreement, disclose to anyone any information
relating to Employer or any financial information, trade or business secrets,
customer lists, computer software or other information not otherwise publicly
available concerning the business or operations of Employer. Employee
recognizes and acknowledges that any financial information concerning any of
Employer's customers, as it may exist from time to time, is strictly
confidential and is a valuable, special and unique asset of Employer's
business. Employee shall not, either before or after termination of this
Agreement, disclose to anyone said financial information or any part thereof,
for any reason or purpose whatsoever. This paragraph 6 shall survive the
expiration or termination of this Agreement.
7. Written or Printed Material. All written or panted materials,
notebooks and records used by Employee in performing duties for Employer, other
than Employee's personal notes and diaries, are and shall remain the sole
property of Employer. Upon termination of employment, Employee shall promptly
return all such material (including all copies) to Employer. This paragraph 7
shall survive expiration or termination of this Agreement.
8. Surety Bond. Employee agrees that he will furnish all
information and take any other steps necessary from time to time to enable
Employer to obtain or maintain a fidelity bond conditional on the rendering of a
true account by Employee of all monies, goods, or other property which may come
into the custody, charge, or possession of Employee during the term of his
employment. The surety company issuing the bond and the amount of the bond must
be
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acceptable to Employer. All premiums on the bond shall be paid by Employer. If
Employee cannot qualify for a surety bond at any time during the term of this
Agreement, Employer shall have the option to terminate this Agreement
immediately without any obligation to pay severance benefits to Employee in
accordance with paragraph 16 (d) of this Agreement.
9. Base Salary. In consideration for the services to be performed
hereunder, Employee shall receive a salary at the rate of per annum, payable in
installments during the term of this Agreement of approximately on the last
and fifteenth days of each month, subject to applicable adjustments for
withholding taxes and prorations for any partial employment period. Employee
shall receive such annual adjustments in salary, if any, as may be determined
by Employer's Board of Directors, in its sole discretion, resulting from the
Board of Directors annual review of Employee's compensation on or about January
1 of each year during the term of this Agreement.
10. Salary Continuation During Disability. If Employee for any
reason (except as expressly provided below) becomes temporarily or permanently
disabled so that he is unable to perform the duties under this Agreement,
Employer agrees to pay Employee the base salary otherwise payable to Employee
pursuant to paragraph 9 of this Agreement, reduced by the amounts received by
Employee from state disability insurance, or worker's compensation or other
similar insurance benefits through policies provided by Employer, for a period
of six (6) months from the date of disability.
For purposes of this paragraph 10, "disability" shall be defined as
provided in Employer's disability insurance program. Notwithstanding anything
herein to the contrary, Employer shall have no obligation to make payments for
a disability resulting from the deliberate, intentional actions of Employee,
such as, but not limited to, attempted suicide or chemical dependence of
Employee.
11. Incentive Compensation. Employee shall be entitled to receive
incentive compensation in the sole discretion of the Board of Directors each
year during the term of this Agreement in connection with its review of
Employee's performance and Employer's results of operations. Except as may be
determined by the Board of Directors in its sole discretion, under no
circumstance shall a right to receive incentive compensation exist in favor of
or accrue to or for the benefit of Employee prior to actual receipt of such
incentive compensation.
12. Stock Options. Employer has previously granted stock options
to Employee evidenced by one or more stock option agreements attached hereto as
Exhibit B and incorporated herein by this reference. Employer may, but is not
obligated to, grant additional stock options to Employee in the future which
grants, if any, shall be within the sole discretion of the Board of Directors
of Employer and subject to the terms and provisions of Employer's stock option
plan pursuant to which such grants are effected. Any such grants shall be
evidenced by a stock option agreement entered into between Employer and
Employee pursuant to such stock option plan and a copy of each such stock
option agreement shall be attached to this Agreement as an exhibit.
Notwithstanding any provision of any such stock option plan or any such stock
option agreement to the contrary, no rights of employment shall be conferred
upon Employee or result from any such stock option plan or any stock option
agreement entered into between Employer and Employee. Any employment rights and
corresponding duties of Employee pursuant to his
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employment by Employer shall be limited to and interpreted solely in accordance
with the terms and provisions of this Agreement.
13. Other Benefits. Employee shall be entitled to those employee
benefits adopted by Employer for all employees of Employer, subject to
applicable qualification requirements and regulatory approval requirements, if
any. Employee shall be further entitled to the following additional benefits
which shall supplement or replace, to the extent duplicative of any part or all
of the general employee benefits, the benefits otherwise provided to Employee:
(a) Vacation. Employee shall be entitled to four
(4) weeks annual vacation leave at his then existing rate of base salary each
year during the term of this Agreement. Employee may be absent from his
employment for vacation as long as such leave is reasonable and does not
jeopardize his responsibilities and duties specified in this Agreement. The
length of vacation should not exceed two (2) weeks without the approval of
Employer's executive committee of the Board of Directors. Employee shall take
at least two (2) consecutive weeks of vacation as required by the California
Superintendent of Banks. Accrual of vacation time, if any, shall be determined
in accordance with Employer's personnel policies.
(b) Automobile and Insurance. Employer shall acquire
or otherwise make available to Employee for his business and incidental
personal use an automobile, suitable to his position, and (i) maintain it in
good condition and repair; and (ii) provide public liability insurance and
property damage insurance policies with insurer(s) acceptable to Employer and
with coverages in such amounts as may be acceptable to Employer from time to
time.
14. Annual Physical Examination. Employer shall pay or reimburse
Employee for the cost of an annual physical examination conducted by a
California licensed physician selected by Employee and reasonably acceptable to
Employer.
15. Business Expenses. Employee shall be reimbursed for all
ordinary and necessary expenses incurred by Employee in connection with his
employment. Employee shall also be reimbursed for reasonable expenses incurred
in activities associated with promoting the business of Employer, including
expenses for entertainment, travel, conventions, educational programs, club
memberships and similar items. Employer will pay for or will reimburse Employee
for such expenses upon presentation by Employee from time to time of receipts
or other appropriate evidence of such expenditures.
16. Termination of Agreement.
(a) Automatic Termination. This Agreement shall terminate automatically without
further act of the parties and immediately upon the occurrence of any one of
the following events, subject to either party's right, without any obligation
whatsoever, to waive an event reasonably susceptible of waiver, and the
obligation of Employer to pay the amounts which would otherwise be payable to
Employee under this Agreement through the end of the month in which the event
occurs, except that only in the event of termination based upon subparagraphs
(1), (4) or (12, to the extent of Employer's breach) below shall Employee be
entitled to receive severance payments based upon automatic termination
pursuant to paragraph 16 (d) of this Agreement:
(1) The occurrence of circumstances that make it
impossible or impractical for Employer to
conduct or continue its business.
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(2) The death of Employee.
(3) The loss by Employee of legal capacity.
(4) The loss by Employer of legal capacity to
contract.
(5) The willful, intentional and material breach
of duty by Employee in the course of his
employment.
(6) The habitual and continued neglect by
Employee of his employment duties and
obligations under this Agreement.
(7) The continuous mental or physical incapacity
of Employee, subject to Employee's rights
under paragraph 10 of this Agreement.
(8) Employee's willful and intentional violation
of any State of California or federal banking
laws, or of the Bylaws, rules, policies or
resolutions of Employer or its parent holding
company, or of the rules or regulations of
the California Superintendent of Banks or the
Federal Deposit Insurance Corporation, or
other regulatory agency or governmental
authority having jurisdiction over Employer
or its parent holding company.
(9) The determination by a state or federal
banking agency or governmental authority
having jurisdiction over Employer that
Employee is not suitable to act in the
capacity for which he is employed by
Employer.
(10) Employee is convicted of any felony or a
crime involving moral turpitude or commits a
fraudulent or dishonest act.
(11) Employee discloses without authority any
secret or confidential information concerning
Employer or takes any action which Employer's
Board of Directors determines, in its sole
discretion and subject to good faith, fair
dealing and reasonableness, constitutes
unfair competition with or induces any
customer to breach any contract with
Employer.
(12) Either party breaches the terms or provisions
of this Agreement.
(b) Termination by Employer. Employer may, at its election and in its sole
discretion, terminate this Agreement for any reason, or for no reason, by
giving not less than thirty (30) days' prior written notice of termination to
Employee, without prejudice to any other remedy to which Employer may be
entitled either at law, in equity or under this Agreement. Upon such
termination, Employee shall be entitled to receive any employment
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benefits which shall have accrued prior to such termination and the severance
pay specified in paragraph 16 (d) below.
(c) Termination by Employee. This Agreement may be terminated by Employee for
any reason, or no reason, by giving not less than thirty (30) days' prior
written notice of termination to Employer. Upon such termination, all rights
and obligations accruing to Employee under this Agreement shall cease, except
that such termination shall not prejudice Employee's rights regarding
employment benefits which shall have accrued prior to such termination and any
other remedy which Employee may have at law, in equity or under this Agreement,
which remedy accrued prior to such termination.
(d) Severance Pay - Termination by Employer. In the event of termination by
Employer pursuant to paragraph 16 (b) or automatic termination based upon
paragraph 16 (a) (1), (4) or (12, to the extent of Employer's breach) of this
Agreement, Employee shall be entitled to receive severance pay at Employee's
rate of salary immediately preceding such termination equal to six (6) months'
salary (in addition to incentive compensation or bonus payments due Employee,
if any), payable in substantially equal installments on the first and fifteenth
days of each month following termination. Notwithstanding the foregoing, in the
event of a "change in control. as defined in subparagraph (e) below, Employee
shall not be entitled to severance pay pursuant to this subparagraph (d) and
any rights of Employee to severance pay shall be limited to such rights as are
specified in subparagraph (e) below. Employee acknowledges and agrees that
severance pay pursuant to this subparagraph (d) is in lieu of all damages,
payments and liabilities on account of the early termination of this Agreement
and the sole and exclusive remedy for Employee terminated at the will of
Employer pursuant to paragraph 16(b) or pursuant to certain provisions of
paragraph 16 (a) described herein.
(e) Severance Pay - Change in Control. In the event of a "change in control" as
defined herein and within a period of one and one half (1 1/2) years following
consummation of such a change in control (i) Employee's employment is
terminated; or (ii) without Employee's consent there occurs (A) any adverse
change in the nature and scope of Employee's position, responsibilities,
duties, salary, benefits or location of employment, or (B) any event which
reasonably constitutes a demotion, significant diminution or constructive
termination (by resignation or otherwise) of Employee's employment, then
Employee shall be entitled to receive severance pay in addition to any bonus or
incentive compensation payments due Employee. Any such severance pay due
Employee shall be in an amount equal to one and one half (1 1/V times
Employee's average annual compensation for the five (5) years immediately
preceding the change in control. Employee's average annual compensation shall
be the average of the aggregate compensation paid by Employer to Employee which
was includable in Employee's gross income for federal income tax purposes for
the five (5) tax years ending immediately prior to the change in control
divided by the number five (5).
If all or any portion of the amounts payable to Employee pursuant to
this paragraph 16 (e) alone or together with other payments which Employee has
the right to receive from Employer, constitute "excess parachute payments"
within the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code"), THAT ARE subject to the excise tax imposed by Section
4999 of the Code (or similar tax and/or assessment), such amounts payable
hereunder shall be reduced to the extent necessary, after first applying any
similar reduction in payments to be received from any other plan or program
sponsored by Employer from which Employee has a right to receive payments
subject to Sections 280G and 4999 of the Code,
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including without limitation any Salary Continuation Agreement made between
Employer and Employee, so as to cause a reduction of any excise tax pursuant to
Section 4999 of the Code to equal "zero".
Any such severance shall be payable in substantially equal installments on the
first and fifteenth days of each month following termination or an event
described in paragraph 16 (e) (ii) of this Agreement. Such severance payment,
if any, shall be in lieu of all damages, payments and liabilities on account of
the events described above for which such severance payment, if any, may be due
Employee and any severance payment rights of Employee under paragraph 16 (d) of
this Agreement. This subparagraph (e) shall be binding upon and inure to the
benefit of the parties and any successors or assigns or employer or any
"person" as defined herein.
Notwithstanding the foregoing, Employee shall not be entitled to
receive nor shall Employer, its successors, assigns or any "person" as defined
herein be obligated to pay severance payments pursuant to this subparagraph (e)
in the event of an occurrence described in paragraph 16, subparagraphs (5),
(6), (8), (10), (11) or (12, to the extent of an Employee breach), or in the
event of a determination pursuant to subparagraph (9) thereof, or in the event
Employee terminates employment in accordance with paragraph 16 (c) and the
termination is not a result of or based upon the occurrence of any event
described in paragraph 16 (e) (ii).
A "change in control. of Employer for purposes of this Agreement and
subparagraph (e) shall mean the occurrence of any of the following events with
respect to Employer (with the term "Employer" being defined for such a change
in control to include any parent holding company): (i) a change in control of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or in response to any other form or
report to the regulatory agencies or governmental authorities having
jurisdiction over Employer or any stock exchange on which Employer's shares are
listed which requires the reporting of a change in control; (ii) any merger,
consolidation or reorganization of Employer in which Employer does not survive;
(iii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) of any assets of
Employer having an aggregate fair market value of fifty percent (50%) of the
total value of the assets of Employer, reflected in the most recent balance
sheet of Employer; (iv) a transaction whereby any "person" (as such term is
used in the Exchange Act or any individual, corporation, partnership, trust or
any other entity) is or becomes the beneficial owner, directly or indirectly,
of securities of Employer representing 25 % or more of the combined voting
power of Employer's then outstanding securities; (v) if in any one year period,
individuals who at the beginning of such period constitute the Board of
Directors of Employer cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election by Employer's
shareholders, of each new director is approved by a vote of a least
three-quarters of the directors then still in office who were directors at the
beginning of the period; (iv) a majority of the members of the Board of
Directors of Employer in office prior to the happening of any event determines
in its sole discretion that as a result of such event there has been a change
in control.
17. Notices. Any notices to be given hereunder by either party to
the other shall be in writing and may be transmitted by personal delivery or by
U.S. mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at the addresses
listed as follows:
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Employer: Principal place of business
Employee: Principal place of business as shown in Employer's Personnel
Records and Employee's personal file.
Each party may change the address for receipt of notices by written notice in
accordance with this paragraph 17. Notices delivered personally shall be deemed
communicated as of the date of actual receipt; mailed notices shall be deemed
communicated as of three (3) days after the date of mailing.
18. Arbitration. AU claims, disputes and other matters in question
arising out of or relating to this Agreement or the breach or interpretation
thereof, other than those matters which are to be determined by the Employer in
its sole and absolute discretion, shall be resolved by binding arbitration
before a representative member, selected by the mutual agreement of the
parties, of the Judicial Arbitration and Mediation Services, Inc. ("JAMS"),
presently located at 111 Pine Street, Suite 710, in San Francisco, California,
in accordance with the rules and procedures of JAMS then in effect. In the
event JAMS is unable or unwilling to conduct such arbitration, or has
discontinued its business, the parties agree that a representative member,
selected by the mutual agreement of the parties, of the American Arbitration
Association ("AAA"), presently located at 417 Montgomery Street, in San
Francisco, California, shall conduct such binding arbitration in accordance
with the rules and procedures of the AAA then in effect. Notice of the demand
for arbitration shall be filed in writing with the other party to this
Agreement and with JAMS (or AAA, if necessary). In no event shall the demand
for arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statute of limitations. Any award rendered by JAMS or
AAA shall be final and binding upon the parties, and as applicable, their
respective heirs, beneficiaries, legal representatives, agents, successors and
assigns, and may be entered in any court having jurisdiction thereof. The
obligation of the parties to arbitrate pursuant to this clause shall be
specifically enforceable in accordance with, and shall be conducted
consistently with, the provisions of Title 9 of Part 3 of the California Code
of Civil Procedure. Any arbitration hereunder shall be conducted in Salinas,
California, unless otherwise agreed to by the parties.
19. Attorneys' Fees and Costs. In the event of litigation,
arbitration or any other action or proceeding between the parties to interpret
or enforce this Agreement or any part thereof or otherwise arising out of or
relating to this Agreement, the prevailing party shall be entitled to recover
its costs related to any such action or proceeding and its reasonable fees of
attorneys, accountants and expert witnesses incurred by such party in connection
with any such action or proceeding. The prevailing party shall be deemed to be
the party which obtains substantially the relief sought by final resolution,
compromise or settlement, or as may otherwise be determined by order of a court
of competent jurisdiction in the event of litigation, an award or decision of
one or more arbitrators in the event of arbitration, or a decision of a
comparable official in the event of any other action or proceeding. Every
obligation to indemnify under this Agreement includes the obligation to pay
reasonable fees of attorneys, accountants and expert witnesses incurred by the
indemnified party in connection with matters subject to indemnification.
20. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with respect to
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the employment of Employee by Employer and contains all of the covenants and
agreements between the parties with respect to the employment of Employee by
Employer. Each party to this Agreement acknowledges that no other
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
set forth herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding on either party.
21. Modifications. Any modification of this Agreement will be
effective only if it is in writing and signed by a party or its authorized
representative.
22. Waiver. The failure of either party to insist on strict
compliance with any of the terms, provisions, covenants, or conditions of this
Agreement by the other party shall not be deemed a waiver of any term,
provision, covenant, or condition, individually or in the aggregate, unless
such waiver is in writing, nor shall any waiver or relinquishment of any right
or power at any one time or times be deemed a waiver or relinquishment of that
right or power for all or any other times.
23. Partial Invalidity. If any provision in this Agreement is held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force and effect
without being impaired or invalidated in any way.
24. Interpretation. This Agreement shall be construed without
regard to the party responsible for the preparation of the Agreement and shall
be deemed to have been prepared jointly by the parties. Any ambiguity or
uncertainty existing in this Agreement shall not be interpreted against either
party, but according to the application of other rules of contract
interpretation, if an ambiguity or uncertainty exists.
25. Governing Law and Venue. The laws of the State of California,
other than those laws denominated choice of law rules, shall govern the
validity, construction and effect of this Agreement. Any action which in any
way involves the rights, duties and obligations of the parties hereunder shall
be brought in the courts of the State of California and venue for any action or
proceeding shall be in Monterey County or in the United States District Court
for the Northern District of California, and the parties hereby submit to the
personal jurisdiction of said courts.
26. Payments Due Deceased Employee. If Employee dies prior to the
expiration of the term of his employment, any payments that may be due Employee
from Employer under this Agreement as of the date of death shall be paid to
Employee's executors, administrators, heirs, personal representatives,
successors, or assigns.
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IN WITNESS WHEREOF, the parties have executed this Agreement consisting
of eleven pages in the City of Salinas, County of Monterey, State of California
as of the date set forth above.
EMPLOYER: EMPLOYEE:
BANK OF SALINAS
By:
[ADD NOTARIAL ACKNOWLEDGEMENT]
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