EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of December
22,1999 , by and between BYL Bank Group , a California banking corporation, with
its headquarters office located at 1875 N. Tustin Ave., Orange, California 92865
(the "Bank"), and Gary Strachn, residing at 1655 Clark Avenue #225, Long Beach,
California 90815 (the "Employee").
A. The Bank is a corporation organized for the purpose of carrying on
the business of banking.
B. The Bank desires to avail itself of the skill, knowledge and
experience of Employee in order to insure the successful management of its
business;
C. The parties hereto desire to specify the terms of Employee's
employment by Bank as a Senior Vice President and Chief Financial Officer in
this written agreement which supersedes all prior agreements, whether written or
oral; and
D. The employment, the duration thereof, the compensation to be paid to
Employee, termination and other terms and conditions of employment provided in
this Agreement were duly fixed, stated, approved and authorized for and on
behalf of the Bank by action of its Board of Directors at a meeting held on
December 22, 1999, at which meeting a quorum was present and voted.
NOW, THEREFORE, on the basis of the foregoing facts and in consideration
of the mutual covenants and agreements contained herein, the parties hereto
agree as follows:
1. TERM
(a) Subject to the provisions below, the Bank agrees to continue
to employ Employee, and Employee agrees to be employed by the Bank, subject to
the terms and conditions of this Agreement, for a period commencing on December
22, l999 and ending on December 31, 2000.
The term for which Employee is employed hereunder is hereinafter referred
to as the "Employment Period".
(b) Subject to the notice provisions set forth in this paragraph,
the term of this Agreement shall automatically be extended for one (1)
additional year on January 1, 2001 after the expiration of the term described in
Paragraph 1(a). The term shall not be automatically extended as provided in this
paragraph if either party shall give written notice to the other, on or before
September 30 of each year, that the Agreement shall not be automatically renewed
on the next January 1. In the event either party shall give the other written
notice as provided in this paragraph, the term of this Agreement shall
thereafter terminate on the next following agreement termination date.
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2. DUTIES AND AUTHORITY
(a) During the Employment Period, Employee shall devote all his
productive time, ability and attention to the business and affairs of the Bank.
Employee shall not directly render service of a business, commercial or
professional nature to any other person or organization without the consent of
the Board of Directors of the Bank (the "Board of Directors"); provided,
however, that nothing contained herein shall prohibit Employee, or require the
Board of Directors to approve or consent to Employee serving a charitable or
nonprofit organization or serving as an advisor or director of any corporation
which does not compete with the business of the Bank. Employee agrees during the
Employment Period to use his best efforts, skill and abilities to promote the
Bank's interests and to serve as an Senior Vice President and Chief Financial
Officer of the Bank. Employee's duties shall include all responsibilities
assigned to the Senior Vice President. For the purposes of regulatory reporting,
the position of Chief Financial Officer is considered an Executive Officer.
3. BANK'S AUTHORITY. Employee agrees to observe and comply with all
laws and the Bank's rules and regulations as adopted by the Board of Directors
regarding performance of his duties and to carry out and to perform all
appropriate orders, directions and policies stated by the Board of Directors to
him periodically, either orally or in writing.
4. COMPENSATION.
(a) The Bank agrees to pay to Employee during the term of this
Agreement a base salary of $85,000 per annum, beginning on the effective date of
this Agreement and payable on the first and fifteenth day of each month during
the term of this Agreement; provided, however, that the base salary shall be
reviewed annually by the Board of Directors, on or before January 31, and may be
changed by mutual agreement of the parties. Any such change may be subject to
review by the Bank's regulatory agencies.
(b) In addition to all other compensation referred to above, the
Employee shall be entitled to participate in any and all other bonus plans,
employee benefits and other plans that may be developed and adopted by the Bank.
(c) All compensation shall be subject to the customary withholding
tax and other employment taxes as required with respect to compensation paid by
a corporation to an employee.
(d) The Bank shall provide a car for Employee's use during the
term, and shall pay all insurance, gas and maintenance expenses of such
automobile. Any expenses of such automobile which are paid by the Bank and which
are for the personal use of the automobile by Employee shall be taxable as
income to Employee. The Employee shall use due care and reasonable efforts to
furnish to the Bank adequate written records and other documentary evidence
required by Federal and State laws and regulations substantiating the extent to
which use of the automobile constitutes deductible business expenses of the
Bank.
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(e) During the Employment Period, Employee shall be eligible to
participate in any pension or profit-sharing plan, or similar employee benefit
plan or retirement program of the Bank now or hereafter existing, to the extent
that he is eligible under the provisions thereof and commensurate with his
position in relationship to other participants. The Bank shall pay for cost of
an annual physical examination of Employee.
(f) Employee shall accrue vacation at the rate of 8.3 hours per
semi-monthly pay period (for a total of 200 hours or 25 days per year) and shall
accumulate sick leave at the rate of 3.3 hours per semi-monthly pay period (for
a total of 80 hours or 10 days per year). Notwithstanding any terms of the
Bank's personnel policy to the contrary, any unused sick leave shall carry
forward to the next year until used, but in no event shall any compensation for
unused sick leave be due to Employee upon his resignation or upon the
termination of this employment for any other reason, including his death or
disability. Vacation time shall not accrue to more than 200 hours (25 days),
except that under special circumstances up to 280 hours (35 days) of vacation
may be accrued if such accrual is approved in advance by the Board of Directors
in its discretion. Employee shall be required to take at least two consecutive
weeks of vacation during each calendar year at a time mutually convenient to
Employee and the Bank.
(g) The Bank agrees to provide medical and dental insurance for
Employee on the same terms as provided for all Senior Vice President officers of
the Bank. The Bank shall provide for Employee, at the Bank's expense,
participation in medical, accident and health, and life insurance benefits
equivalent to the maximum benefits available from time to time under the
California Bankers Association Group insurance program for Employee's salary
level, as long as Employee is insurable at a normal premium payment. Said
coverage shall take effect as of the Effective Date hereof and shall continue
throughout the Term. The Bank's liability to Employee for any breach of this
paragraph shall be limited to the amount of premiums payable by the Bank to
obtain the coverage contemplated herein.
5. REIMBURSEMENT OF EXPENSES.
The services required by the Bank will require Employee to incur business,
entertainment and communityrelations expenses and the Bank hereby agrees to
provide credit cards and charge accounts for Employee's use for such expenses.
The Bank agrees to reimburse Employee for all out-of-pocket expenses which are
business related, upon submission of appropriate documentation therefor and
approval thereof by the Board of Directors or a committee thereof appointed for
such purpose. The Board or a committee thereof shall review such expenses at
least monthly so that reimbursement of appropriate expenses is not unreasonably
delayed. Each expense, to be reimbursed, must be of a nature qualifying it as a
proper deduction on the income tax returns of the Bank as a business expense and
not as deductible compensation to Employee. The records and other documentary
evidence submitted by Employee to the Bank with each request for reimbursement
of such expenses shall be in the form required by applicable statutes and
regulations issued by appropriate taxing authorities for the substantiation of
such expenditures as deductible business expenses of the Bank and not as
deductible compensation to Employee.
6. CONFIDENTIAL INFORMATION.
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Without the prior written permission of the Bank in each case, Employee
shall not publish, disclose or make available to any other person, firm or
corporation, either during or after the termination of this Agreement, any
confidential information which Employee may obtain during the Employment Period,
or which Employee may create prior to the end of the Employment Period relating
to the business of the Bank, or to the business of any customer or supplier of
any of them; provided, however, Employee may use such information during the
Employment Period for the benefit of the Bank. Prior to or at the termination of
this Agreement, Employee shall return all documents, files, notes, writings and
other tangible evidence of such confidential information to the Bank.
7. COVENANT NOT TO SOLICIT CUSTOMERS OR
FELLOW EMPLOYEES.
Employee agrees that for a period of twelve (12) months following the
termination of his employment hereunder he will not solicit the banking business
of any customer with whom the Bank had done business during the preceding one
year period. Employee further agrees not to solicit the services of any officer
or employee of the Bank during such twelve (12) month period.
8. REMEDY.
Employee understands that, because of the unique character of the services
to be rendered by Employeehereunder, the Bank would not have any adequate remedy
at law for the material breach or threatened breach by Employee of any one or
more of the covenants set forth in this Agreement and agrees that in the event
of any such material breach or threatened breach, the Bank may in addition to
the other remedies which may be available to it:
(a) Declare forfeited any moneys representing accrued salary,
contingent payments or other fringe benefits due and payable to Employee, and,
or alternatively,
(b) File a suit in equity to enjoin Employee from the breach or
threatened breach of such covenants.
9. TERMINATION OF EMPLOYEE WITHOUT CAUSE.
(a) The Board of Directors may terminate Employee's employment
hereunder without Cause (as defined in subsection 10(b) below) at any time,
provided, however, that such termination by the Board without Cause shall
entitle Employee to the compensation described in subsection 9(b) below.
(b) In the event Employee is terminated by the Bank without Cause,
the Bank shall pay to Employee an amount equal to nine (9) months of base
salary, auto allowance, vacation pay and insurance benefits, and accrued bonuses
as severance pay in lieu of and in substitution for any other claims for salary
and continued benefits hereunder (based on Employee's base salary and benefits
prevailing at the time of termination). Such severance payment shall be in
addition to all other sums owing to Employee as accrued vacation pay.
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However, if Employee's employment is terminated by the Bank or the Bank's
successor pursuant to this Section 9 within nine (9) months as a result of the
consummation of a plan of dissolution or a liquidation of the Bank, or
consummation of a plan of reorganization, merger or consolidation of the Bank
with one or more corporations, as a result of which the Bank is not the
surviving corporation, or upon the sale of all or substantially all of the
assets of the Bank to another corporation, or the acquisition of stock
representing more than 25% of the voting power of the Bank then outstanding by
another corporation or person, the Bank shall pay to Employee an amount equal to
eighteen (18) months of base salary, auto allowance, vacation pay, and insurance
benefits, as severance pay in lieu of and in substitution for any other claims
for salary and continued benefits hereunder (based on Employee's base salary and
benefits prevailing at the time of termination). Such severance payment shall be
in addition to all sums owing to employee as accrued vacation pay.
With respect to any stock options issued to the Employee that were
outstanding on the date of the termination of his employment under this Section
9, any options which would become exercisable had the Employee remained in the
employ of the Bank through the end of the Employment Period but which are not
exercisable on the effective date of the Employee's termination of employment
under this Section 9 shall automatically become exercisable upon any such
termination, and shall remain exercisable in full for a period of one year after
such termination of employment.
10. TERMINATION OF EMPLOYEE FOR CAUSE.
(a) Notwithstanding anything herein contained, on or after the
date hereof and prior to the end of the Employment Period, the Bank shall have
the right to terminate Employee's employment hereunder for Cause (as defined in
Subsection 10(b) below) by giving to Employee written notice of such termination
as of a date (not earlier than ten (10) days after such notice) to be specified
in such notice, and the Employment Period shall terminate on the date so
specified, whereupon Employee shall be entitled to receive only his then accrued
salary at the rate provided in Section 4(a), plus his accrued vacation pay, but
only to the date on which termination shall take effect; provided, however, that
if termination is due to physical or mental disability of Employee, such
termination shall not affect any rights which Employee may have at the time of
termination pursuant to any insurance or other death benefit, bonus, retirement,
or arrangements of the Bank; or any stock option plan or any options thereunder,
which rights shall continue to be governed by the provisions of such plans and
arrangements.
(b) For purposes of this Agreement, "Cause" shall mean the
determination by the Board of Directors, acting in good faith and by majority
vote, with or without a meeting, that Employee has (i) willfully failed to
perform or habitually neglected the appropriate duties which he is required to
perform hereunder; or (ii) willfully failed to follow any policy of the Bank
which materially adversely affects the condition of the Bank; or (iii) engaged
in any activity in contravention of any Bank policy, statute, regulation or
governmental policy which materially adversely affects the Bank's condition, or
its reputation in the community, or which evidences the lack of Employee's
fitness or ability to perform Employee's duties; or (iv) willfully refused to
follow any appropriate instruction from the Board of Directors unless Employee
asserts that
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compliance with such instruction would cause the Bank or Employee to violate any
statute, regulation or governmental or Bank policy; or (v) subject to subsection
(c) below, become physically or mentally disabled or otherwise evidenced his
inability to discharge his duties as an Senior Vice President of the Bank, or
(vi) been convicted of or pleaded guilty or nolo contendere to any felony, or
(vii) committed any act which would cause termination of coverage under the
Bank's Bankers Blanket Bond as to Employee, as distinguished from termination of
coverage as to the Bank as a whole.
(c) If Employee becomes disabled and such disability continues for
a period of one hundred eighty (180) consecutive days, then upon expiration of
such 180-day period, if the term of this Agreement has not already expired, the
Bank may, in its discretion, terminate the Agreement and all benefits due
hereunder, but Employee shall be entitled upon such termination to receive
disability payments in accordance with such disability plan as may be
established for the payment of disability benefits as permitted under the
Internal Revenue Code; provided, however, that if such disability is job
related, as determined by an arbitrator mutually acceptable to the Bank and
Employee or Employee's representative, then the compensation due hereunder shall
continue for a period of one year after the commencement of such disability.
(d) This Agreement shall terminate immediately without further
liability or obligation to Employee if the Bank is closed by any supervisory
authority.
11. TERMINATION UPON EMPLOYEE'S DEATH; EFFECT OF
TERMINATION ON OTHER PLANS
(a) Notwithstanding anything herein contained, if Employee shall
die, this Agreement shall terminate on the date of Employee's death, whereupon
Employee's estate shall be entitled to receive his salary, accrued vacation, and
any bonus earned up through the date of termination. Such termination shall not
affect any rights which Employee may have at the time of his death pursuant to
any of the Bank's plans or arrangements for insurance or for any other death
benefit, bonus, or retirement benefit.
(b) Notwithstanding anything herein contained, any termination of
employment under this Section 11 shall not affect any accrued rights which
Employee may have at the time of such termination, including, but not limited
to, any of the Bank's plans for arrangements for insurance, vacation,
retirement, and stock options, which then accrued rights shall continue to be
governed by the provisions of such plans and arrangements to the extent they are
not inconsistent with the terms of this Agreement.
12. MERGER, CONSOLIDATION OR REORGANIZATION.
In the event of a merger where the Bank is not the surviving corporation,
or in the event of a consolidation, or in the event of a transfer of all or
substantially all of the assets of the Bank, or in the event of any other
corporation reorganization where there is a change in ownership of at least
twenty-five percent (25%) except as may result from a transfer of shares to
another corporation in exchange for at least eighty percent (80%) control of
that corporation, or in the event of the dissolution of the Bank, this Agreement
shall not be terminated, in which
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case, except in the event of dissolution, the surviving or resulting
corporation, the transferee of the Bank's assets, or the Bank shall be bound by
and shall have the benefit of the provisions of this Agreement. The Bank shall
endeavor to take all reasonable actions necessary to insure that such
corporation or transferee, if other than the Bank, is bound by the provisions of
this Agreement.
13. MODIFICATION
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof, supersedes all existing agreements between
them concerning such subject matter, and may be modified only by written
instrument duly executed by each party.
14. NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested or delivered against receipt to the party set forth in the
preamble to this Agreement (or to such other address as the party shall have
furnished in writing in accordance with the provisions of this Section 14).
Notice to the estate of Employee shall be sufficient if addressed to Employee as
provided in this Section 14. Any notice or other communication given by
certified mail shall be deemed given at the time of certification thereof,
except for a notice changing a party's address which shall be deemed given at
the time of receipt thereof.
15. DISPUTE RESOLUTION PROCEDURES
Any controversy or claim arising out of or this Agreement or the breach
thereof, or the interpretation thereof, shall be settled by binding arbitration
in accordance with the Rules of the American Arbitration Association; and
judgment upon the award rendered in such arbitration shall be final and may be
entered in any court having jurisdiction thereof. Notice of the demand for
arbitration shall be filed in writing with the other party to this Agreement and
with the American Arbitration Association. In no event shall the demand for
arbitration be made after the date when institution or legal or equitable
proceedings based on such claim, dispute or other matter in questions would be
barred by the applicable statute of limitations. This agreement to arbitrate
shall be specifically enforceable under the prevailing arbitration law. Any
party desiring to initiate arbitration procedures hereunder shall serve written
notice on the other party. The parties agree that an arbitrator shall be
selected pursuant to these provisions within thirty (30) days of the service of
the notice of arbitration. In the event of any arbitration pursuant to these
provisions, the parties shall retain the rights of all discovery provided
pursuant to the California Code of Civil Procedure and the Rules thereunder,
except that all time periods contained in said Code and Rules shall be shortened
by fifty percent (50%) for purposes of arbitration proceedings hereunder. Any
arbitration initiated pursuant to these provisions shall be on an expedited
basis and the dispute shall be heard within one hundred twenty (120) days
following the serving of the notice of arbitration and a written decision shall
be rendered within sixty (60) days thereafter. All rights, causes of action,
remedies and defenses available under California law and equity are available to
the parties hereto and shall be applicable as though in a court of law. The
parties shall share equally all costs of any such arbitration.
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16. MISCELLANEOUS.
(a) This Agreement is drawn to be effective in the State of
California and shall be construed in accordance with California laws, except to
the extent superseded by any other federal law. No amendment or variation of the
terms of this Agreement shall be valid unless made in writing and signed by
Employee and a duly authorized representative of the Bank.
(b) Any waiver by either party of a breach of any provision of
this Agreement shall not operate as to be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
(c) Employee's rights and obligations under this Agreement shall
not be transferable by assignment or otherwise, such rights shall not be subject
to commutation, encumbrance or the claims of Employee's creditors, and any
attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon and inure to the benefit of the Bank and its
successors and those who are its assigns under Section 12.
(d) This Agreement does not create, and shall not be construed as
creating, any rights enforceable by a person not a party to this Agreement
(except as provided in subsection (c) above).
(e) The headings in this Agreement are solely for the convenience
of reference and shall be given no effect on the construction or interpretation
of this Agreement.
(f) This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. It shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
conflict of laws, except where federal law governs.
17. RESIGNATION AS DIRECTOR UPON TERMINATION.
Upon termination of this Agreement, Employee, if he is then serving as a
director of the Bank and/or the Bank's holding company, agrees to immediately
resign his position as a director by giving written notice of his resignation to
the Chairman of the Board of Directors of the Bank and/or the Bank's holding
company.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be signed by its
duly authorized officers and Employee has executed this Agreement to be
effective as of the day and year written above.
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BANK: BYL Bank Group
By: /s/ H. RHOADS MARTIN
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H. Rhoads Martin
Chairman of the Board
EMPLOYEE:
By: /s/ GARY STRACHN
---------------------------------
Gary Strachn
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