EXHIBIT 10.17
CUPERTINO NATIONAL BANK & TRUST
EMPLOYMENT, SEVERANCE AND
RETIREMENT BENEFITS AGREEMENT
THIS EMPLOYMENT, SEVERANCE AND RETIREMENT BENEFITS AGREEMENT (the
"Agreement") is made and entered on this ____ day of __________ and is effective
as of _________________, by and between CUPERTINO NATIONAL BANCORP (the
"Corporation"), its wholly owned subsidiary CUPERTINO NATIONAL BANK & TRUST (the
"Bank") and _____________ ("Employee").
The Corporation, Bank and Employee agree as follows:
1. DEFINITIONS
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1.1 "Agreement" means only the agreement contained in this document
and as modified in writing pursuant to section 10.5 herein.
1.2 "Anniversary Date" means the date one (1) year from the
Effective Date.
1.3 "Bank" means Cupertino National Bank & Trust, and any successor
to its business or assets which executes and delivers the Agreement as provided
by section 10.2 herein or which becomes bound by this Agreement by operation of
law.
1.4 "Board" means the Board of Directors of the Bank.
1.5 "Cause" means (1) Employee's acts of personal dishonesty;
willful misconduct; breach of fiduciary duty or violation of banking law
involving an intent to obtain personal or family profit; willful violation of
any law, rule, or regulation which results in action against or restrictions
imposed on the Bank by regulatory authorities; habitual abuse of substances (as
corroborated by a physician) or extended unexcused absence from work; or (2)
Employee's continued failure to substantially perform Employee's duties (which
failure may be determined by the Board by reference to the quality of the
Company's financial condition or operating performance) with the Bank (other
than any failure resulting from Disability) after a written demand for
substantial performance is given to Employee by the Board which demand
specifically identifies the manner in which the Board believes that Employee has
not substantially performed Employee's duties. The definition of "Cause" as set
forth in subsection (1) hereof is sometimes referred to separately herein as
"Personal Conduct/Cause," and the definition of "Cause" as set forth in
subsection (2) is sometimes referred to separately herein as
"Performance/Cause." The term "Cause," standing alone, shall mean either
Personal Conduct/Cause or Performance/Cause or both. For purposes of the
definition of Personal Conduct/Cause, an act, or failure to act, on the
Employee's part shall be
considered "willful" only if done, or omitted to be done, by him without
reasonable belief that such act, or failure to act, is in the best interests of
the Employer.
1.6 "Change in Control" means a change in the Board of Directors, or
the Corporation or the Bank following:
1.6.1 The acquisition, directly or indirectly, of more than 25%
of the outstanding shares of any class of voting securities of the Corporation
or the Bank by any Person; or
1.6.2 A merger, consolidated or sale of all or substantially
all of the assets of the Corporation or the Bank, such that the individuals
constituting the Corporation Board or the Board of the Bank immediately prior to
such period shall cease to constitute a majority of such Board, unless the
election of each director who was not a director prior thereto was approved by
vote of at least two-thirds of the directors then in office who were directors
prior to such period.
1.6.3 Notwithstanding the foregoing, any change in the Board of
either the Corporation or the Bank which occurs within the twenty-four (24)
month period following the Effective Date as a result of a merger with South
Valley Bancorporation, shall NOT constitute a Change in Control for purposes of
this Agreement.
1.7 "Control" means the possession, direct or indirect, by any
Person or "group" (as defined in section 13(d)(3) of the Securities Exchange Act
of 1934, as amended) of the power to direct or cause the direction of the
management policies of the Corporation or the Bank, whether through ownership of
voting securities, by contract, or otherwise, and in any case means the ability
to determine the election of a majority of the directors of the Corporation or
the Bank.
1.8 "Corporation" means Cupertino National Bancorp and any successor
to its business or assets which executes and delivers the agreement as provided
by section 10.2 herein, or which becomes bound by this Agreement by operation of
law.
1.9 "Corporation Board" means the Board of Directors of Cupertino
National Bancorp.
1.10 "Disability" means physical or mental illness resulting in
absence on a full-time basis from Employee's duties with Employer for one-
hundred eighty (180) consecutive calendar days. Disability shall be deemed to
have occurred only after the following procedure has been satisfied: If within
thirty (30) days after written notice of proposed Termination for Disability is
given to Employee by Employer, Employee has
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not returned to the full-time performance of Employee's duties, Employer may
terminate Employee by giving written notice of Termination for Disability. Such
notice may be given by Employer following Employee's absence from Employee's
duties by reason of physical or mental disability for one-hundred fifty (150)
consecutive calendar days.
1.11 "Effective Date" means _________________.- Salary Continuation
Agreement.
1.12 "Employee" means ______________.
1.13 "Employer" means the Corporation, the Bank or one of their
subsidiaries which is Employee's employer on the date of a Change in Control. If
Employee has more than one such employer on the date of a Change in Control, it
means the employer who makes payment of Employee's monthly salary, and if two or
more employers do so, each shall be deemed to be Employer for the purposes of
this Agreement on a pro rata basis as to the amount of Employee's working time
devoted to each, as a percentage of Employee's salary. "Employer" shall include
any successor to the business or assets of an Employer and which executes the
agreement provided by section 10.2 or which becomes bound by this Agreement by
operation of law.
1.14 "Person" means an individual, a corporation, a partnership, an
association, a joint stock company, a trust, any unincorporated organization or
a government or political subdivision thereof.
1.15 "Resignation for Good Reason" or "Resign for Good Reason" means
the cessation of Employee's employment upon written notice given by Employee to
Employer as provided in section 5.4.1 herein.
1.16 "Retirement" or "Retire" means voluntary termination by Employee
of his/her employment with Employer other than for reason of death, Disability
or Resignation for Good Reason, as those terms are defined herein.
1.17 "Salary" shall mean regular annual base cash compensation
exclusive of incentive or bonus compensation or noncash compensation benefits.
1.18 "Retirement Age" for purposes of this Agreement is sixty (60)
years of age.
1.19 "Termination" or "Terminated" means cessation of Employee's
employment upon written notice (with or without Cause) given to Employee, by
Employer or the Board, or their successors.
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2. POSITION AND DUTIES
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2.1 Employee shall be employed by the Bank as its _______________
_______________________ reporting to the Executive Management Committee,
of which Employee will be a member, effective _______________ ("the
Commencement Date"). As __________________________________________, Employee
agrees to devote his full business time, energy and skill to his duties at the
Bank. These duties shall include, but not be limited to, any duties consistent
with his position which may be assigned to Employee from time to time by the
Bank's President.
2.2 CODE OF PERSONAL AND BUSINESS CONDUCT. Employee agrees to abide
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by the terms and conditions of the Bank's standard employee Code of Personal &
Business Conduct executed by Employee and attached here as Exhibit A.
3. TERM
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3.1 The term of this Agreement shall commence as of the Effective
Date and shall continue until the Termination, Retirement, Resignation for Good
Reason (as defined in section 5.4.1) or death of Employee, whichever occurs
first. This Agreement and all of its terms and conditions may be terminated upon
written agreement by the parties. Notwithstanding the foregoing, nothing
contained herein shall imply the existence of a contract or assurance of
employment between Employee and Employer, nor shall this Agreement alter
Employer's personnel policies and practices, including the right to terminate
Employee at any time with or without cause.
3.2 Notwithstanding the right of Bank to terminate Employee, any
such Termination shall be governed by section 5 below.
4. COMPENSATION
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4.1 SALARY. Employee shall be paid a monthly salary of __________
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(____________ on an annual basis), subject to applicable withholding, in
accordance with the Bank's normal payroll procedures.
4.2 BENEFITS. Employee shall have the right, on the same basis as
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other members of senior management of the Bank, to participate in and to receive
benefits under any of the Bank's employee benefits plans, including medical,
dental, life and disability group insurance plans as well as the Bank's 401(k)
Plan and Employee Stock Purchase Plan.
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4.3 VACATION. Employee shall accrue vacation at a rate of 2.083
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days per month, the equivalent of five (5) weeks over a one (1) year period.
4.4 STOCK OPTIONS. Stock options will be granted at the discretion
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of the Board of Directors. The shares will vest under the provisions of the
Bank's 1995 Stock Option Plan.
4.5 PERFORMANCE BONUS. Employee will be eligible for a performance
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bonus up to ___ of base salary based upon goals, which will be set annually by
the Board.
4.6 CAR ALLOWANCE. _______ per month.
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4.7 DEFERRED COMPENSATION. The Bank will provide Retirement
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compensation benefits as provided in paragraph 6 set forth below.
4.9 COMPENSATION FREEZE. Subject to the terms and conditions
herein, and for a period for three (3) years from the Effective Date, Employee's
total annual Salary and standard employee benefits from Employer set forth above
shall remain the same; provided, however, that Employee's Salary shall be
increased annually to allow for a cost of living increase, such increase to be
determined based on the U.S. Department of Labor Bureau of Labor Statistics
Consumer Price Index for All Urban Consumers in the San Francisco, Oakland and
Bay Area. In addition, it is within the complete discretion of the Employer to
increase such amount of total compensation at any time and for any reason,
including a promotion of Employee to a new position or title; however, other
than the cost-of-living increase to Salary as provided for herein, nothing in
this Agreement shall suggest or imply that the Board is under any duty or
obligation to increase Employee's Salary or other compensation or standard
employee benefits at any time during the three (3) year period following the
Effective Date. Employee's current salary, his current participation in
incentive compensation programs of the Employer and a description of current
standard employee benefits are set forth above.
5. TERMINATION OF EMPLOYMENT
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5.1 The provisions of this section 5 shall govern the benefits, if
any, which Employee shall receive upon Termination of his Employment.
5.2 BENEFITS UPON VOLUNTARY TERMINATION. In the event that Employee
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voluntarily resigns from his employment with the Bank, or in the event that his
employment terminates as a result of his death or disability, Employee shall be
entitled to
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no compensation or benefits from the Bank other than those earned under
paragraph 4 above through the date of his termination.
5.3 BENEFITS UPON OTHER TERMINATION. Employee agrees that his
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employment may be terminated by the Bank at any time, with or without cause. In
the event of the termination of Employee's employment by the Bank for the
reasons set forth below, he shall be entitled to the following:
5.3.1 TERMINATION FOR PERSONAL CONDUCT/CAUSE. The payments set
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forth in section 5.3.2 hereof shall not apply if at any time Employee is
terminated upon a good faith finding of Personal Conduct/Cause by the Board;
provided, however, that Employee shall be given written notice of the Board's
finding of conduct by Employee amounting to Personal Conduct/Cause for such
Termination. Such notice shall be accompanied by a copy of a resolution duly
adopted by the affirmative vote of not less than a majority of the members of
the Board adopted at a duly-noticed meeting of the Board, and finding in good
faith that Employee engaged in conduct amounting to Personal Conduct/Cause and
specifying the particulars thereof.
5.3.2 If the Employee is Terminated for Performance/Cause or
other than by reason of death, Retirement, Disability or Personal Conduct/Cause,
as set forth herein, or if Employee Resigns for Good Reason, as defined in
section 5.4.1 below, the Bank shall pay to Employee ___________ months' Salary
("Severance Payment") at a rate equivalent to the then-current Salary of
Employee.
5.3.3 The Bank shall have the option of paying Severance
Payments in a lump-sum payment, or by salary continuation payments made under
the Bank's normal employee compensation schedule. If the Bank chooses the lump-
sum payment option, such payment shall be made not later than the tenth (10th)
day following the date of cessation of employment, Termination or Resignation
for Good Reason.
5.3.4 Although a payment triggering such section is not
intended hereby, amounts otherwise due under this section will be reduced if,
and to the extent that, such reduction will increase the net amount Employee
will receive under this Agreement after taking into account the imposition of
the excise tax under section 4999 of the Internal Revenue Code, if applicable.
5.4 If a Change in Control occurs during the Term of this Agreement,
Employee may thereafter be entitled to a payment set forth in section 5.3.2 in
accordance with the terms hereof, subject to the following limitations:
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5.4.1 RESIGNATION FOR GOOD REASON. The payments set forth in section
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5.3.2 hereof shall apply if, after a Change of Control but within one year
thereafter, Employee Resigns for Good Reason, upon the happening of one or more
of the following events (unless such event or occurrence is applied generally to
all officers and employees of Employer and any parent or successor of any of
them), any of which will constitute Good Reason for Employee's Resignation:
5.4.1.1 Without Employee's express written consent,
Employee's assignment to any duties substantially inconsistent with Employee's
position, duties, responsibilities and status with Employer immediately prior to
a Change in Control, or any removal of Employee from any such position to a
position substantially inferior to such prior position;
5.4.1.2 A reduction by Employer of Employee's Salary or of
any bonus compensation formula applicable to Employee as in effect prior to a
Change in Control;
5.4.1.3 A failure by Employer to maintain any of the employee
benefits to which Employee was entitled prior to a Change in Control at a level
substantially similar to or greater than that in effect prior to a Change in
Control, through the continuation of the same or substantially similar plans,
programs and policies;
5.4.1.4 The failure by Employer to provide Employee with the
same number of paid vacation days and leave to which Employee would be entitled
as salaried employee of Employer, or any parent or successor of Employer;
5.4.1.5 Employer requiring Employee to travel on employer's
business to an extent substantially greater than Employee's present business
travel obligations; or the relocation of Employee's office at least sixty (60)
miles from its current location, without Employee's consent; and
5.4.1.6 The failure of the Bank to obtain the assumption of
this Agreement by any successor of Employer as contemplated in section 10.2
below.
5.4.2 The events described above are the only events which shall
constitute Good Reason.
6. CERTAIN RETIREMENT BENEFITS
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6.1 Subject to the special terms and conditions contained below,
upon cessation of Employee's employment with Employer, if the Employee has
reached the Retirement
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Age, or as soon thereafter as Employee reaches the Retirement Age, the Bank
hereby agrees that the Employee and Employee's spouse shall become the joint
owners (with right of survival) with the Bank of the annual increase of the cash
surrender value of the policy thereafter arising; however, the Employee's (and
Employee's spouse's) right to draw against such increase (such draw to reduce
eventual death benefits) shall never exceed _______ per 12-month period (the
"Retirement Draw Benefit"). The shared right to ownership of this increase shall
continue for the lifetime of the Employee and the lifetime of the Employee's
surviving spouse, but in no event longer than 40 years.
6.1.1 The Retirement Draw Benefit will be made available by means of
a split-dollar insurance policy which is to be purchased by the Bank within
thirty (30) days of the date of this Agreement, and for which the premium
payment split between the Bank and Employee and the payment terms are outlined
in Exhibit B to this Agreement.
6.1.2 Subject to the provisions of sections 6.1.3 and 6.1.4 herein,
Employee's right to the Retirement Draw Benefit shall not fully vest unless he
has been employed by Employer for seven (7) years from the Effective Date. If
Employee's employment with Employer ends any time before a date one (1) year
from the date of this Agreement (the "Anniversary Date"), Employee will not have
any right to, or interest in, the Retirement Draw Benefit. If Employee's
employment ends at any time after the Anniversary Date, but prior to the seven
(7) year date of full vesting, Employee's right to one-seventh (1/7) of the
Retirement Draw Benefit--i.e., the right to draw _________, or one-seventh of
________, per 12-month period--will vest on the Anniversary Date, and Employee's
right to the Retirement Draw Benefit will continue to proportionately vest
thereafter on a monthly basis, on the first date of each month following the
Anniversary Date, until employment ends.
6.1.3 Subject to the provisions of section 6.1.2 herein, if prior to
a Change in Control and during the Term hereof, Employee is Terminated for any
reason other than Disability, the vesting of Employee's right to the Retirement
Draw Benefit will cease as of the date of termination. If prior to a Change of
Control and during the Term hereof, Employee is Terminated by reason of
Disability, the vesting of Employee's right to the Retirement Draw Benefit will
cease as of the date of termination unless the Board in its sole and absolute
discretion approves additional vesting.
6.1.4 Notwithstanding the provisions of section 6.1.2 herein, if
after a Change in Control and during the Term hereof, Employee is Terminated, or
Resigns for Good Reason, as provided in section 5.4.1 herein, Employee's right
to the Retirement Draw Benefit shall immediately vest in full, and such benefit
shall become available to Employee when Employee reaches Retirement Age.
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7. FEDERAL INCOME TAX WITHHOLDING
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7.1 The Bank shall withhold from any compensation or benefits
payable under this Agreement all federal, state, city or other taxes or
deductions as shall be required pursuant to any law, governmental regulation or
ruling.
8. ARBITRATION
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8.1 Any controversy between the parties hereto, including the
construction, application or breach of any of the terms, covenants or conditions
of this Agreement, and all claims relating to or arising from Employee's
employment or Termination, including all statutory claims (including but not
limited to all statutes dealing with employment discrimination), shall on a
timely written request of one party served upon the other, be submitted to
arbitration and be governed by the California Arbitration Act as set forth in
the California Code of Civil Procedure (presently sections 1280 et seq.). The
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parties agree that any written request for arbitration must be made within one
year after the initiating party first learned or should have learned in the
exercise of reasonable diligence of the essential facts upon which the claim is
based, or first suffered any harm, or first learned or should have learned in
the exercise of reasonable diligence of the breach of this Agreement, whichever
is earlier. Any claim not raised within such time limitation shall be waived
and forever barred. The arbitration shall take place in Santa Clara County,
California.
8.2 The parties may agree upon one arbitrator, but in the event
they cannot agree, there shall be three (3), one named in writing by each of the
parties within ten (10) days after demand for arbitration is given, and a third
chosen by the two so appointed; provided further that if the two appointed
cannot agree on the choice, then application shall be made to a presiding judge
of the Santa Clara County Superior Court for the purpose of designating a third
arbitrator. The applying party (who may suggest in such application the names of
a suitable third arbitrator) shall provide the other party at least 48 hours
prior notice of the application so that such other party may have the
opportunity to submit one or more names of persons suitable to serve as the
designated third arbitrator. The presiding judge shall have discretion to
designate the third arbitrator from among the names suggested by either party or
from among any other persons such judge deems appropriate. The cost of such
arbitration, including reasonable attorneys' fees, shall be borne by the losing
party or in such proportions as the arbitrator(s) shall decide. Arbitration
shall be the exclusive remedy of the parties and the award of the arbitrator(s)
shall be final and binding upon the parties.
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9. GENERAL PROVISIONS
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9.1 NONASSIGNABILITY. Neither this Agreement nor any right or
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interest hereunder shall be assignable by Employee, provided, however, that
nothing in this section 10 shall preclude (i) Employee from designating a
beneficiary to receive any benefits payable hereunder upon Employee's death, or
(ii) Employee's executors, administrators, or other legal representatives of
Employee's estate from assigning any rights hereunder to the person or persons
entitled thereto.
9.2 ASSUMPTION. The Bank shall require any successor in interest
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(whether direct or indirect or as a result of purchase, merger, consolidation,
Change in Control or otherwise) to all or substantially all of the business
and/or assets of the Corporation or the Bank to expressly assume and agree to
perform the obligations under this Agreement.
9.3 NO ATTACHMENT. Except as required or permitted by law, no
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right to receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to execution, attachment, levy, or similar process of
assignment by operation of law, and any attempt, voluntary or involuntary, to
effect any such action shall be null, void and of no effect. The payments due
Employee under section 5 herein shall not be deemed earned until the conditions
set forth in section 5 occur, if ever.
9.4 BINDING AGREEMENT. This Agreement contains the entire
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understanding among the parties regarding Employee's relationship with Bank and
Corporation and supersedes any prior employment agreements. This Agreement shall
be binding upon, and inure to the benefit of, Employee, the Bank and the
Corporation, and their respective heirs, successors and assigns. Each party
acknowledges that no representations, inducements, promises, or agreements 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 on either party except as provided
herein.
9.5 AMENDMENT OR AUGMENTATION OF AGREEMENT. This Agreement may not
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be modified or amended except by an instrument in writing signed by the parties
hereto. Unless expressly agreed to in writing by the parties hereto, no
additional rights or compensation, even if given or accepted, shall be deemed to
modify or otherwise affect the express terms and conditions of this Agreement.
9.6 WAIVER. No term or condition of this Agreement shall be deemed
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to have been waived, nor shall there be any estoppel against the enforcement of
any provision of
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this Agreement except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each waiver shall operate only as to the
specific term or condition waived and shall not constitute a waiver of such term
or condition for the future or as to any act other than that specifically
waived.
9.7 CONDITION OF THE BANK AND THE CORPORATION. Notwithstanding
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anything in this Agreement, no payment shall be made under section 5 without
regulatory approval if any of the following events or circumstances exist: (i)
the Bank is insolvent or a conservator or receiver has been appointed for it;
(ii) the Comptroller of the Currency or other appropriate federal banking agency
has made a determination that the Bank or the Corporation is in a "troubled
condition" as defined by applicable regulations of such federal banking agency;
(iii) the Bank or the Corporation is assigned a composite rating of 4 or 5 by
the appropriate federal banking agency or is informed in writing by the OCC that
it is rated a 4 or 5 under the Uniform Financial Institution's Rating System of
the Federal Financial Institution's Examination Council; or (iv) the OCC has
initiated a proceeding against the Bank to terminate or suspend deposit
insurance for the Bank.
9.8 SEVERABILITY. If, for any reason, any provision of this
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Agreement is held invalid, such invalidity shall not affect any other provision
of this Agreement not held invalid, and each such other provision shall to the
full extent consistent with law continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity shall
in no way affect the rest of such provision not held invalid, and the rest of
such provision together with all other provisions of this Agreement shall, to
the full extent consistent with law, continue in full force and effect. (If this
Agreement is held totally invalid or cannot be enforced, then to the full extent
permitted by law any prior employment agreement, whether oral or written,
express or implied, between the Bank and/or its affiliates, (or any successor
thereof) and Employee shall be deemed reinstated as if this Agreement had not
been executed.)
9.9 NOTICES. All notices, requests, demands and other
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communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered or if mailed by United States certified or
registered mail, prepaid, to the parties or their permitted assignees at the
following addresses (or at such other address as shall be given in writing by
either party to the other):
To: Cupertino National Bank & Trust
20230 Stevens Creek Boulevard
Cupertino, CA 95014-2244
Attention: Chairman of the Board
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To: Employee at the last known address contained in the
personnel records of the Bank
9.10 HEADINGS. The headings of paragraphs herein are included
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solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
9.11 GOVERNING LAW. This Agreement has been executed and delivered
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in the State of California, and its validity, interpretation, performance, and
enforcement shall be governed by the laws of said State.
9.12 ADVICE OF COUNSEL. Employee has been encouraged to consult
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with legal counsel of Employee's choosing concerning the terms of this Agreement
prior to executing this Agreement. Any failure by Employee to consult with
competent counsel prior to executing this Agreement shall not be a basis for
rescinding or otherwise avoiding the binding effect of this Agreement. The
parties acknowledge that they are entering into this Agreement freely and
voluntarily, with full understanding of the terms of the Agreement.
Interpretation of the terms of this Agreement shall not be construed
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for or against either party on the basis of the identity of the party who
drafted the provision in question.
CORPORATION: BANK:
CUPERTINO NATIONAL BANCORP CUPERTINO NATIONAL BANK & TRUST
By: _____________________________ By: ______________________________
_____________________________ ______________________________
Its: _____________________________ Its: ______________________________
_____________________________ ______________________________
EMPLOYEE:
____________________________________
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