EXHIBIT 10.13
EMPLOYMENT AGREEMENT
This Employment Agreement (sometimes referred to as this "Agreement") is
effective February 25, 1992, between SC Bancorp ("Bancorp") and Southern
California Bank ("Bank") (collectively refereed to as "Employers"), and David A.
McCoy ("Employee").
RECITALS
A. Employers desire to employ Employee in the full-time position of
Executive Vice President and Chief Operating Officer and the Employee has
advised Employers of his willingness to accept such employment by Employers.
B. Employers and Employee hereby enter into this Agreement setting forth
each and all of the terms and conditions of the employment.
NOW, THEREFORE, in consideration of the foregoing Recitals, and the terms,
conditions and covenants contained herein, it is agreed as follows:
1. EMPLOYMENT. Employers hereby employ Employee and Employee hereby
accepts this employment and agrees to exercise and perform faithfully,
exclusively, and to the best of his ability on behalf of each of the Employers
the powers and duties customarily exercised and performed by its Chief Operating
Officer for a period of three years from March 23, 1992, ("Employment Date")
until March 24, 1995, on the terms and conditions set forth herein. Employee
acknowledges and agrees that he is hereby also making a moral commitment to
honor this Agreement and to further the Employers' best interest during the full
term of this Agreement. Employers acknowledge and agree that they are hereby
making a moral commitment to honor this Agreement, to provide Employee with the
authority necessary to fulfill his responsibilities and to carry out the affairs
of Employers in a manner which is consistent with safe and sound banking
practices and in compliance with all applicable laws and regulations.
2. EMPLOYEE'S SERVICES AND DUTIES.
2.1 During the term hereof, Employee shall:
(a) Observe and conform to the policies, and directions,
promulgated by Employers' Board of Directors and/or President;
(b) Assume and perform those duties customarily performed by the
Chief Operating Officer of a bank, including general duties and other powers and
duties pertaining by law,
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regulations, or practice to the office of Director of Branch Banking or as
assigned or delegated to Employee by the President or as otherwise imposed by
the Bylaws of Employers; and
(c) Shall report directly to the President who shall set
performance goals in consultation with employee and shall review his performance
on an annual basis and
(d) Serve as a full-time employee, and devote his ability and
attention to the business of Employers during the term of this Agreement, and
neither directly nor indirectly render any services of a business, commercial,
or professional nature, whether as employee, partner, officer, director or
shareholder, to any other person, firm, corporation or organization which in any
manner competes with Employer, whether for compensation or otherwise, nor engage
in any activity which is adverse to the Employers' business or welfare, without
the prior written consent of Employers.
The precise services to be performed by Employee may be extended or
curtailed, from time to time, at the discretion of Employers' Board of Directors
and/or President provided such services shall at all times be of the nature
customarily performed by the Chief Operating Officer of a bank and bank holding
company, as the case may be.
2.2 Nothing contained herein shall be construed to prevent Employee
from investing his assets in any form or manner, or supervising these
investments, provided that such investment-related activities do not, in any
manner nor for any significant amount of time, interfere with his performance of
services on behalf of Employers, and provided further Employee shall not acquire
any direct or indirect ownership interest in any bank or financial institution,
other than Employers, where such ownership interest exceeds one tenth of one
percent of the total ownership interest in any bank or financial institution
other than Employers. This restriction shall only apply to banks or financial
institutions that are located within the service areas of any Employers' offices
and are in direct competition with Employers.
2.3 During the term hereof Employee shall not have a margin account
with any entity without the prior written consent of Employers' Board of
Directors or President.
3. TERM. The term of Employee's employment by Employers pursuant to this
Agreement shall be for a period of three consecutive years, commencing on the
Employment Date of March 23, 1992, and terminating on March 24, 1995, subject to
earlier termination as hereinafter provided. Provided further that,
notwithstanding the foregoing, two years after the employment date the term of
this Agreement shall be automatically renewed
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for an additional two year term so that the agreement shall be for a three year
term unless either party provides thirty days written notice of this party's
intent not to renew. In the event this agreement is not renewed it shall remain
in effect for a one year period.
4. COMPENSATION AND OTHER BENEFITS. As compensation in full for the
services to be rendered by Employee hereunder, Employers shall pay and the
Employee shall accept the following compensation:
(a) Employers shall pay to Employee a base salary of $130,000 per
year, commencing with the Employment Date, payable in equal semi-monthly
installments, less usual withholding deductions. Such base salary shall be a
minimum salary. As of January 1, 1993 and each January 1 thereafter during the
term of this Agreement, Employee's minimum base salary will be reviewed by the
Board of Directors on the basis of his performance to such date and the progress
of Employers and shall be increased as of such dates if so determined by the
Board of Directors in its absolute discretion. The Board of Directors may also
increase Employee's base salary at any other time in its absolute discretion.
(b) Employers shall provide Employee with a leased automobile of the
kind provided to other Employees with similar duties, responsibilities and
title. Employers shall pay for all maintenance and insurance on such
automobile.
(c) As additional compensation, Employee shall be entitled to
participate in the Senior Management Incentive Compensation Program.
(d) During the term of Employee's employment under this Agreement,
Employee shall be entitled to receive other benefits of employment, such as
life, health and accident insurance on Employee in the form, kind and amount
made available under group insurance coverage to other employees of Employers
with responsibilities and duties similar to those of Employee. Employee shall
also be entitled to participate in all of Employers' ERISA type plans in
existence during the term of this Agreement. Employee shall not be entitled to
participate in any profit sharing plans, incentive compensation programs or
other benefit plans made available to employees of Employers except as described
in paragraph 4(c) or other paragraphs of this Agreement.
(e) Employers shall provide the use of a country club membership to
Employee for the promotion of Employers' business. Employers shall be
responsible for all costs related to such membership. If Employers are
incapable of holding such membership in corporate name, Employers shall provide
to Employee
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funds necessary to acquire such membership. Employee shall be entitled to use
of such membership during the terms of this Agreement. Upon Employee ceasing
employment with Employers, Employee shall transfer any and all ownership of such
membership to Employers or a designee of Employers.
5. EXPENSES. Employee is authorized to incur reasonable expenses for
promoting the business of Employers and other customary, ordinary and business
activities. Such expenses will be reimbursed only upon presentation by Employee
with an itemized account of his expenditures with appropriate documentation to
substantiate such expenses on behalf of Employers.
6. VACATIONS AND HOLIDAYS. Employee shall be entitled to an annual
vacation according to Employers' personnel policy of four weeks without
reduction in salary. In the event that Employee has not utilized all his
vacation days during a year, his unused vacation may carry over to the next
calendar year up to a cap of two weeks. Once Employee reaches his vacation cap,
he ceases earning vacation until the unused vacation is reduced. Employee shall
also be entitled to all paid holidays provided to Employers' employees with
similar responsibilities and duties.
7. STOCK OPTIONS. Employee shall be entitled to participate in the
Employer's Stock Option Plan pursuant to the terms of said plan. Within 21 days
of employment, Employer shall grant to Employee stock options to acquire 7500
shares of common Stock at such terms as determined by the Board of Directors.
8. TERMINATION PRIOR TO EXPIRATION OF TERM.
8.1 TERMINATION BY EMPLOYERS FOR CAUSE. Employers have the
unrestricted right to terminate this Agreement at any time for cause, at which
time all obligations and liability of Employees under this Agreement shall cease
(except as to benefits then accrued), upon determination in good faith that
Employee (i) has been adjudged guilty of a felony or a misdemeanor involving
moral turpitude by a court of competent jurisdiction; (ii) has committed any act
which would cause termination of coverage under the Employers' Bankers' Blanket
Bond as to Employee (as distinguished from termination of coverage as to the
Employers as a whole); (iii) was involved in a criminal misfeasance or willful
misconduct in the performance of his duties; (iv) refused or failed to perform
his duties as provided in this Agreement; (v) refused or failed to follow the
rules and policies established by the Employers' Board of Directors or
President; (vi) was dishonest with respect to his relationship with Employers;
(vii) committed act(s) of gross negligence or reckless behavior which resulted
in harm to Employers; (viii) breached any of the covenants set forth in this
Agreement resulting in, or which reasonably may be expected to have, an adverse
effect upon
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Employers; or (ix) became disabled as discussed in Paragraph 8.4 of this
Agreement.
8.2 TERMINATION BY EMPLOYERS WITHOUT CAUSE. Either Employers' Board
of Directors and or President may terminate this Agreement and rights hereunder,
without cause or any reason whatsoever, upon payment to Employee of the sum of
twelve (12) months pay if terminated during the first year of this Agreement and
Six (6) months pay during any year thereafter at Employee's base salary in
effect on the date of termination. Any pay in lieu of vacation accrued to
Employee, but not taken as of the date of termination, will be deemed included
in the termination pay. All remaining obligations and liability of Employers
under this Agreement shall cease at the date of termination, (except as to
benefits then accrued).
Upon any termination of this Agreement without cause, payment to
Employee by Employers as provided in the preceding paragraph of this Section 8.2
shall constitute full and complete satisfaction of each and every obligation of
the Employers to the Employee.
8.3 DEATH OF EMPLOYEE. If Employee dies during the term of this
Agreement, Employers shall pay to the estate of Employee the compensation and
other rights hereunder which would otherwise be payable to Employee up to the
end of the following month in which his death occurs, and Employers shall have
no further obligations or liability under this Agreement (except as to benefits
then accrued).
8.4 DISABILITY OF EMPLOYEE. If Employee becomes disabled during the
term of this Agreement and such disability continues for a period of ninety (90)
days in any twelve month period, Employers may, at their option, after the
expiration of such period, terminate this Agreement by giving written notice to
Employee, at which time all obligations and liability of Employers under this
Agreement shall cease (except as to benefits then accrued). For the purposes of
this Agreement, the term "disabled" shall be defined as Employee's inability,
through physical or mental illness or other cause, to perform normal and
customary duties which he is required to perform under this Agreement. In
determining whether Employee is disabled, Employers may rely upon the written
statement provided by a licensed physician acceptable to Employers. Employee
shall allow himself to be examined from time to time by any licensed physician
selected by Employers. All such examinations will be conducted within a
reasonable time period.
8.5 TERMINATION BY EMPLOYEE. Employee shall have the right to
terminate this Agreement with or without cause or with or without notice.
However, Employers request that Employee give a minimum of ninety (90) days
prior notice, in writing, to
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Employers in the event Employee resigns or voluntarily terminates employment
during the term of this Agreement. The Employers' Board of Directors or
President, at their sole discretion, may reduce the number of days of prior
notice required or may waive the provision in its entirety.
8.6 MISCELLANEOUS PROVISION REGARDING TERMINATION. The paragraphs in
this Agreement providing for Employers' right to terminate this Agreement shall
be interpreted wholly independent from and without reference to one another and
shall not be construed to impair or in any manner limit Employers' right to
otherwise terminate this Agreement pursuant to the laws of the State of
California.
8.7 CHANGE OF CONTROL. In the event of a change of control during
the term of this Agreement or any renewal thereof, Employee shall receive twelve
(12) months severance pay if he is not retained in the same or similar position
for a period of one year after the change of control. Change of control shall
mean the purchase of a majority of the outstanding shares of common stock of the
Employers other than by an affiliate of the Employers or any purchase or sale of
substantially all of the property and assets of the Employers to a person or
entity other than an affiliate of the Employers or the merger or consolidation
of the Employer with or into another Corporation unless the Employer is to be
the surviving Corporation.
9. NOTICE. Any written notice to be given to Employee by Employers may
be given either by personal delivery to Employee, or by mail, registered or
certified, postage prepaid with return receipt requested, addressed to Employee
at his then current residence. Any written notice to be given to Employers by
Employee shall be given either by personal delivery to Employers' President, or
by mail, registered or certified, postage prepaid with return receipt requested,
addressed to Employers' President, at the administrative office of the
Employers.
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of Employers, their successors and assigns. Employee may not assign all
or any part of his interest under this Agreement without the prior written
consent of Employers.
11. RECEIPT OF AGREEMENT. Each of the parties hereto acknowledges that he
or they have read this Agreement in its entirety and does hereby acknowledge
receipt of a fully executed copy thereof. A fully executed copy shall be an
original for all purposes, and is a duplicate original.
12. ARBITRATION AND ATTORNEY'S FEES. Any controversy between Employers
and Employee involving the construction or application of any of the terms,
provisions or conditions of this Agreement shall, on the written request of
either party served on
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the other, be submitted to arbitration, and such arbitration shall comply with
and be governed by the provisions of the California Arbitration Act, Sections
1280 through 1294.2 of the California Code of Civil Procedure. Both parties
shall agree upon an arbitrator from the Los Angeles County Superior Court panel
and, if they are unable to agree on an arbitrator, then each will choose an
arbitrator, who together will select a third impartial arbitrator whose decision
shall be final and conclusive upon all parties. Employers and Employee shall
each pay the fees and/or expenses of their or his attorneys, witnesses and all
other expenses connected with presenting their or his case in arbitration. All
other costs of arbitration, including without limitation, the costs of any
record or transcript of the arbitration proceedings, administrative fees, the
fee and expenses of the arbitration(s) and all other fees and costs shall be
borne equally by Employers and Employee.
The arbitrator(s) who hears and decides any controversy, dispute
and/or claim between Employers and Employee shall, in determining a remedy, have
jurisdiction and authority only to award compensatory damages to make whole a
party suffering foreseeable economic damages, and, the arbitrator(s) shall not
have any authority or jurisdiction to make any award of any kind or nature
whatsoever or compensation for any damages including, without limitation, any
award for punitive damages and/or any award of damages for pain and suffering,
emotional distress or any other kind of form of non-economic damages and/or non-
foreseeable economic damages.
13. CALIFORNIA LAW. This Agreement is to be governed by and construed
under the laws of the State of California except to the extent that any federal
law regulating banks may apply.
14. 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.
15. INVALID PROVISIONS. Should any part of this Agreement for any reason
be declared invalid, the validity and binding effect of any remaining portion
shall not be affected, and the remaining portions of this Agreement shall remain
in force and effect as if this Agreement had been executed with the invalid
provisions eliminated.
16. ENTIRE AGREEMENT. This Agreement contains the entire Agreement
between the parties with respect to the employment of Employee by Employers, and
supersedes all prior and contemporaneous agreements, representations and
understandings of the parties. No modification, amendment or waiver of any of
the provisions of this Agreement shall be effective unless in writing
specifically referring hereto and signed by both parties.
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17. WAIVER OF BREACH. The failure to enforce at any time any of the
provisions of this Agreement, or to require at any time performance by the other
party of any of the provisions hereof, shall in no way be construed to be a
waiver of such provisions or to effect either the validity of this Agreement or
any part hereof or the right of either party thereafter to enforce each and
every provision in accordance with the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective on the day and year herein before set forth.
By
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David A. McCoy
SOUTHERN CALIFORNIA BANK
By
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Its:
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SC BANCORP
By
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Its:
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