EXHIBIT 10.5
Employment Agreement - Mr. Barry J. Moore
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of November
28, 1995, by and between BANK OF YORBA LINDA, a California banking corporation,
with its headquarters office located at 18206 Imperial Highway, Yorba Linda
California 92686 (the "Bank"), and BARRY J. MOORE, residing at 977 Maryhurst
Drive, Claremont, California 92680 (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 its Executive 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
November 28, 1995, 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 five-year period commencing
on January 1, 1996 and ending on December 31, 2001.
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 of each calendar year after the expiration of
the five (5) year 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 the Executive Vice President and Chief
Financial Officer of the Bank. Employee's duties shall include all
responsibilities normally assigned to the Executive Vice President and Chief
Financial 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
of each year for that year, 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.
(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
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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 executive officers of the Bank. The Bank shall provide for Employee, at
the Bank's expense, participation in medical, accident and health, income
continuation 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 community relations 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.
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
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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 twenty-four (24) 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 twenty-four (24)
month period.
8. REMEDY.
Employee understands that, because of the unique character of the
services to be rendered by Employee hereunder, 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 twelve (12) 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.
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
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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 twenty-four (24) 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 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 Vice President and
Chief Financial Officer of the Bank, or (vi) been convicted of or pleaded
guilty or nolo contendere to any felony, or (vii) committed any act which would
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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 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.
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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.
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
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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, 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.
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.
BANK: BANK OF YORBA LINDA
By: /s/ John C. Coelho
--------------------------
John C. Coelho
Chairman of the Board
EMPLOYEE:
/s/ Barry J. Moore
--------------------------
Barry J. Moore
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