Exhibit 10.16
COMMERCIAL CAPITAL BANK
EXECUTIVE BONUS AGREEMENT
THIS AGREEMENT is adopted this 23rd day of July, 2002, by and between
COMMERCIAL CAPITAL BANK, a savings association located in Irvine, California
(the "Company"), and STEPHEN H. GORDON (the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to provide to the Executive a bonus opportunity. The Company
will pay the Executive's bonus from the Company's general assets.
AGREEMENT
The Executive and the Company agree as follows:
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Bonus" means only the cash bonus award paid to the Executive
during a Plan Year and does not include any salary.
1.2 "Change of Control" means the transfer of shares of the Company's
voting common stock such that one entity or one person acquires (or is deemed to
acquire when applying Section 318 of the Code) more than 50 percent of the
Company's outstanding voting common stock followed within twelve (12) months by
the Executive's Termination of Employment for reasons other than death,
Disability or retirement.
1.3 "Code" means the Internal Revenue Code of 1986, as amended.
1.4 "Disability" means the Executive's suffering a sickness, accident
or injury which has been determined by the carrier of any individual or group
disability insurance policy covering the Executive, or by the Social Security
Administration, to be a disability rendering the Executive totallly and
permanently disabled. The Executive must submit proof to the Company of the
carrier's or Social Security Administration's determination upon the request of
the Company.
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1.5 "Early Involuntary Termination" means that the Executive, prior to
Normal Retirement Age, has been notified in writing, that employment with the
Company is terminated for reasons other than an approved leave of absence.
Termination for Cause, Disability, or within 12 months following a Change of
Control.
1.6 "Normal Retirement Age" means the Executive's 60/th/ birthday.
1.7 "Normal Retirement Date" means the later of the Normal Retirement
Age or Termination of Employment.
1.8 "Plan Year" means the calendar year.
1.9 "Termination of Employment" means that the Executive ceases to be
employed by the Company for any reason, voluntary or involuntary, other than by
reason or a leave of absence approved by the Company.
1.10 "Termination for Cause" means the Company terminating the
Executive's employment for:
(a) Gross negligence or gross neglect of duties to the Company;
(b) Commission of a felony or of a gross misdemeanor involving
moral turpitude in connection with the Executive's employment with the
Company; or
(c) Fraud, disloyalty, dishonesty or willful violation of any law
or significant Company policy committed in connection with the
Executive's employment and resulting in an adverse effect on the
Company.
1.11 "Voluntary Termination" means that the Executive, prior to Normal
Retirement Age, has terminated employment with the Company for reasons other
than death, Disability, Termination for Cause, Change of Control, or Early
Involuntary Termination.
Article 2
Bonus Award
2.1 Payment of Bonus Award. The Company shall pay the Executive a cash
Bonus Award for each Plan Year until the Executive's death. The amount of the
Bonus Award shall be equal to the Executive's economic benefit under a separate
Split Dollar Agreement, divided by one minus the Company's combined marginal
income tax rate for the calendar year immediately preceding such payment. The
Executive shall have no right to determine or influence such Bonus Award. The
Company shall pay the Bonus Award prior to December 31 of each year.
2.2 Continuation of Bonus Award. The Company shall continue to pay the
Executive the Bonus Award under the following circumstances:
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(a) Upon the Executive attaining Normal Retirement Age;
(b) Upon a Change of Control.
Article 3
Reimbursement
Reimbursement to Company. In the event the Company has provided the
Executive any split dollar death benefit under separate agreement, the Executive
shall annually pay to the Company an amount equal to the Executive's economic
benefit determined under such agreement.
Article 4
General Limitations
The Company shall not continue to pay any Bonus award under this
Agreement under the following circumstances:
(a) Upon the Executive's Early Voluntary Termination;
(b) Upon the Executive's death;
(c) Upon the Executive's Termination for Cause; or
(d) Upon the termination of this Agreement.
Article 5
Amendment and Termination
This Agreement may be amended or terminated in the sole discretion of
the Company after written notification of such amendment or termination is
provided to the Executive.
Article 6
Claims and Review Procedure
6.1 Claims Procedure. Any person or entity who has not received
benefits under this Agreement that he or she believes should be paid (the
"claimant") shall make a claim for such benefit as follows:
6.1.1 Initiation -- Written Claim. The claimant initiates a claim
by submitting to the Company a written claim for the benefits.
6.1.2 Timing of Company Response. The Company shall respond to
such claimant within 90 days after receiving the claim. If the Company
determines that special circumstances require additional time for
processing the claim, the Company can extend the response period by an
additional 90 days by notifying the claimant in writing, prior to the
end of the initial 90-day period, that an additional period is
required. The notice of extension must
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set forth the special circumstances and the date by which the Company
expects to render its decision.
6.1.3 Notice of Decision. If the Company denies part or all of the
claim, the Company shall notify the claimant in writing of such denial.
The Company shall write the notification in a manner calculated to be
understood by the claimant. The notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of this Agreement
on which the denial is based,
(c) A description of any additional information or material
necessary for the claimant to perfect the claim and an
explanation of why it is needed,
(d) An explanation of this Agreement's review procedures and
the time limits applicable to such procedures, and,
(e) A statement of the claimant's right to bring a civil
action under ERISA Section 502(a) following an adverse
benefit determination on review.
6.2 Review Procedure. If the Company denies part or all of the claim,
the claimant shall have the opportunity for a full and fair review by the
Company of the denial, as follows:
6.2.1 Initiation -- Written Request. To initiate the review, the
claimant, within 60 days after receiving the Company's notice of
denial, must file with the Company a written request for review.
6.2.2 Additional Submissions -- Information Access. The claimant
shall then have the opportunity to submit written comments, documents,
records and other information relating to the claim. The Company shall
also provide the claimant, upon request and free of charge, reasonable
access to, and copies of, all documents, records and other information
relevant (as defined in applicable ERISA regulations) to the claimant's
claim for benefits.
6.2.3 Considerations on Review. In considering the review, the
Company shall take into account all materials and information the
claimant submits relating to the claim, without regard to whether such
information was submitted or considered in the initial benefit
determination.
6.2.4 Timing of Company Response. The Company shall respond in
writing to such claimant within 60 days after receiving the request for
review. If the Company determines that special circumstances require
additional time for processing the claim, the Company can extend the
response period by an additional 60 days by notifying the claimant in
writing, prior to the end of the initial 60-day period, that an
additional period is required. The notice of extension must set forth
the special circumstances and the date by which the Company expects to
render its decision.
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6.2.5 Notice of Decision. The Company shall notify the claimant in
writing of its decision on review. The Company shall write the
notification in a manner calculated to be understood by the claimant.
The notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of this Agreement
on which the denial is based,
(c) A statement that the claimant is entitled to receive,
upon request and free of charge, reasonable access to,
and copies of, all documents, records and other
information relevant (as defined in applicable ERISA
regulations) to the claimant's claim for benefits, and
(d) A statement of the claimant's right to bring a civil
action under ERISA Section 502(a).
Article 7
Miscellaneous
7.1 Binding Effect. This Agreement shall bind the Executive and the
Company and their beneficiaries, survivors, executors, administrators and
transferees.
7.2 No Guarantee of Employment. This Agreement is not an employment
policy or contract. It does not give the Executive the right to remain an
employee of the Company, nor does it interfere with the Company's right to
discharge the Executive. It also does not require the Executive to remain an
employee nor interfere with the Executive's right to terminate employment at any
time.
7.3 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of California, except to the extent preempted
by the laws of the United States of America.
7.4 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
7.5 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the Bonus award provided under this Agreement.
7.6 Reorganization. The Company shall not merge or consolidate into or
with another company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm, or person agrees to assume and discharge the obligations of the Company
under this Agreement.
7.7 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Executive as to the subject matter hereof. No rights
are granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.
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7.8 Facility of Payment. If the Executive is declared to be
incompetent, or incapable of handling the disposition of his or her property,
the Company may pay such benefit to the duly appointed guardian, legal
representative or person having the care or custody of the Executive. The
Company may require proof of incompetence, minority or guardianship as it may
deem appropriate prior to distribution of the benefit. Such distribution shall
completely discharge the Company from all liability with respect to such
benefit.
7.9 Administration. The Company shall have powers which are necessary
to administer this Agreement, including but not limited to:
(a) Interpreting the provisions of this Agreement;
(b) Establishing and revising the method of accounting for this
Agreement;
(c) Maintaining a record of Bonus payments; and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer this Agreement.
7.10 Named Fiduciary. The Company shall be the named fiduciary and plan
administrator under this Agreement. The named fiduciary may delegate to others
certain aspects of the management and operation responsibilities of the plan
including the employment of advisors and the delegation of ministerial duties to
qualified individuals.
IN WITNESS WHEREOF, the Executive and the Company consent to this
Agreement on the date above written.
EXECUTIVE: COMPANY:
Commercial Capital Bank
/s/ Stephen H. Gordon By /s/ David S. DePillo
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Stephen H. Gordon Title President
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