EXHIBIT 10.47
EMPLOYMENT AND NON-COMPETITION AGREEMENT
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THIS EMPLOYMENT AND NON-COMPETITION AGREEMENT (the "Agreement") is made and
entered into by and between Southern Pacific Bank, a California corporation (the
"Corporation"), and Richard S. Cupp, an individual (the "Executive"), effective
as of the date on which the Executive's employment is approved by the relevant
California and Federal banking regulators.
WITNESSETH:
WHEREAS, the Corporation desires to employ the Executive as its Chairman of
the Board, President and Chief Executive Officer; and
WHEREAS, the Executive desires to accept such employment under the terms
and conditions herein stated.
NOW, THEREFORE, the Corporation and the Executive, each intending to be
legally bound, hereby mutually covenant and agree as follows:
1. Employment and Term
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(a) Employment - The Corporation hereby offers to employ the Executive as
the President and Chief Executive Officer of the Corporation, and the Executive
hereby accepts such employment, for the term set forth in Section 1(b). In
addition, the Corporation agrees to nominate and appoint the Executive to the
Board of Directors of the Corporation (the "Board") where he shall be entitled
to serve as Chairman of the Board, for so long as the Executive continues to be
employed hereunder. The Corporation also agrees to recommend to the parent
corporation, Imperial Credit Industries, Inc. ("ICII"), that the Executive be
appointed to the board of directors of ICII.
(b) Term - The employment hereunder shall be at will and may be terminated
without cause by the Corporation upon thirty (30) days prior written notice to
the Executive from the Board, and may be terminated by the Executive upon thirty
(30) days prior written notice to the Board.
2. Duties
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During his Term, the Executive shall serve as the President and Chief
Executive Officer of the Corporation and shall have all powers and duties
consistent with such position subject to the direction of the Board, to whom the
Executive shall report. The Executive shall preside at all meetings of the
Board, the Executive Committee of the Corporation and such other Board-appointed
committees as the Board may determine. The Executive shall devote his full time
and attention and best efforts to fulfill faithfully, responsibly and to the
best of his ability his duties hereunder.
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3. Compensation
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(a) Base Salary - For services performed by the Executive for the
Corporation pursuant to this Agreement, the Corporation shall pay the Executive
a base salary ("Base Salary") at the rate of $400,000 per year, payable in
accordance with the Corporation's regular payroll practices. Executive's Base
Salary shall be reviewed annually by the Board. Any compensation which may be
paid to the Executive under any additional compensation plan of the Corporation,
or which may be otherwise authorized from time to time by the Board, shall be in
addition to the Base Salary to which the Executive shall be entitled under this
Agreement.
(b) Bonus - The Executive shall be eligible to receive a cash bonus based
on the Corporation's achievement of certain goals established by the Board. The
Board shall promptly establish the Executive's goals for calendar year 2002,
including components related to compliance with outstanding regulatory orders
and with profitability/return on equity, and shall thereafter establish annual
goals for the Executive. Depending on the results achieved for each component,
the Executive's total cash bonus will range from $0 to $200,000, as determined
in the sole judgment of the Board.
This annual bonus arrangement shall be in lieu of the Executive's participation
in any other cash bonus or cash incentive plan or arrangement of the
Corporation; provided, however, that the foregoing shall not preclude the
Executive from participating in any equity or equity-based compensation program
of the Corporation, and the bonus program set forth herein may be replaced with
a different program in calendar year 2003 and each year thereafter, approved by
the Board and agreed with the Executive.
(c) Equity - The Executive shall be eligible to receive grants of common
stock of the parent corporation, Imperial Credit Industries, Inc. ("ICII") under
the ICII Long-Term Stock Incentive Plan and any successor or addition thereto,
in the sole discretion of the Board. Effective upon bank regulatory approval of
this Agreement, the Executive shall be awarded a stock option grant of 500,000
shares, at a price of 110% of the November 2001 average closing price quoted on
the Nasdaq National Market, vesting 20% per year, provided that the Executive
remains employed in his current position by the Corporation. In the event of a
change in control of the Corporation which results in the termination of the
Executive without Cause or for Good Reason (as defined hereafter), all unvested
shares shall vest immediately. For purposes of this Agreement, "change in
control" shall mean the sale of ICII or the Corporation (including shareholder
approval and consummation of any merger or other business combination of ICII or
the Corporation) or the sale of substantially all of the assets of ICII or the
Corporation.
(d) Tax Withholding - The Corporation shall provide for the withholding of
any taxes required to be withheld by federal, state and local law with respect
to any payment in cash, shares of capital stock or other property made by or on
behalf of the Corporation to or for the benefit of the Executive under this
Agreement or otherwise. The Corporation may, at its option: (i) withhold such
taxes from any cash payments owing from the Corporation to the Executive, (ii)
require the Executive to pay to the Corporation in cash such amount as may be
required to satisfy such withholding or (iii) make other satisfactory
arrangements with the Executive to satisfy such withholding obligations.
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4. Benefits
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In addition to the Base Salary to be paid to the Executive pursuant to
Section 3(a) hereof and any annual bonuses earned by, and discretionary grants
of common stock awarded to, the Executive pursuant to Sections 3(b) and 3(c)
hereof, the Executive shall also be entitled to the following:
(a) Participation in Insurance and Healthcare Benefit Plans - Except as
otherwise expressly provided herein, the Executive and his dependents may be
enrolled in the Corporation's insurance and healthcare benefit group plans in
accordance with established Corporation policies.
(b) Participation in the Corporation's 401(k) Plan and Deferred Executive
Compensation Plans - The Executive shall be entitled to participate in the
Corporation's 401(k) Plan and the Deferred Executive Compensation Plans in
accordance with established Corporation policies.
(c) Expense Reimbursement - The Corporation shall reimburse the Executive,
upon proper accounting, for reasonable business expenses incurred by him in the
course of the performance of his duties under this Agreement.
(d) Vacations, Holidays, Absences and Leaves - The Executive shall be
entitled to the benefit of the vacation, holiday, absence and leave policies
applicable to all employees of comparable title or status in the Corporation.
(e) Proration of Benefits - Any payments or benefits pursuant to this
Section 4, in any year during which the Executive is employed by the Corporation
for less than the entire year, shall, unless otherwise provided herein or in the
applicable plan or arrangement, be prorated in accordance with the number of
days in such year during which the Executive is employed by the Corporation.
5. Indemnification
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The Executive shall be entitled to the maximum indemnification provided by
the Bylaws and the Articles of Incorporation of the Corporation for officers,
directors and employees of the Corporation. The Executive's rights under this
paragraph shall continue without time limit so long as he may be subject to any
such liability, whether or not the Executive's term of employment by the
Corporation may have ended.
6. Representations and Warranties of the Executive
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The Executive hereby represents and warrants to the Corporation that (a)
the Executive's execution and delivery of this Agreement and his performance of
his duties and obligations hereunder will not conflict with, or cause a default
under, or give any party a right to damages under, or to terminate, any other
agreement to which the Executive is a party or by which he is bound, and (b)
there are no agreements or understandings that would make unlawful the
Executive's execution or delivery of this Agreement or his employment hereunder.
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7. Representations and Warranties of the Corporation
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The Corporation hereby represents and warrants to the Executive as follows:
(a) The Corporation is duly organized and established as a corporation
under the laws of the State of California and has all requisite power and
authority to enter into this Agreement and to perform its obligations hereunder.
The consummation of the transactions contemplated by this Agreement will neither
violate nor be in conflict with any agreement or instrument to which the
Corporation is a party or by which it is bound.
(b) The execution, delivery and performance of this Agreement and the
transactions contemplated hereby have been duly and validly authorized by all
requisite corporate action on the part of the Corporation and are valid, legal
and binding obligations of the Corporation, enforceable in accordance with their
terms except as may be limited by federal and state banking laws, regulations
and orders and by laws of general application relating to bankruptcy,
insolvency, moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights generally, and rules of law governing specific
performance, injunctive relief or other equitable remedies.
8. Termination
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Executive's employment shall terminate upon the happening of any of the
following events:
A. For Cause
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The Executive may be terminated for Cause immediately upon receipt of
notice pursuant to a good faith determination to terminate for Cause made by a
majority of the Board. For purposes of this Agreement, "Cause" means:
(1) the Executive engages in any act of theft, embezzlement, falsification
of records, misappropriation of funds or property, or fraud against, or with
respect to the business of, the Corporation or any affiliate;
(2) current use of illegal drugs on or off the job or current addiction to
alcohol, unless the Executive voluntarily requests accommodation for
rehabilitation before such time as the Corporation notifies the Executive that
it suspects the Executive's use of illegal drugs or addiction to alcohol;
(3) the Executive commits a breach of any material term of this Agreement or
any other material legal obligation to the Corporation and, if such breach is
capable of being cured, fails to cure such breach within 30 days of notice of
such breach by the Board;
(4) the Executive is convicted of, or pleads guilty or nolo contendere to a
felony or a crime involving moral turpitude, breach of trust or dishonesty;
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(5) the Executive intentionally commits any act that causes, or knowingly
fails to take reasonable and appropriate action to prevent, material injury to
the financial condition or business reputation of the Corporation or any of its
affiliates; however, this shall not apply to any act of the Corporation or its
affiliates by any other employee thereof except to the extent that such act is
committed at the direction, or with the specific knowledge, of the Executive; or
(6) the Executive ceases to devote his full time and attention and best
efforts to his duties hereunder.
Notwithstanding the foregoing, the Executive shall not be deemed to have
been terminated for Cause (except for Cause pursuant to (1), (2) and (4) above)
unless and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than three quarters
(3/4) of the non-employee Directors of the Corporation at a meeting of the Board
called and held for such purpose (after reasonable notice to the Executive and
an opportunity for the Executive, together with the Executive's counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
the Executive was guilty of the conduct set forth above and specifying the
particulars thereof in detail.
B. Good Reason (by the Executive)
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The Executive's employment may be terminated by the Executive at any time
for any of the following reasons (each of which is referred to herein as "Good
Reason") by giving the Corporation notice of the effective date of such
termination (which effective date may be the date of such notice):
(1) the Corporation commits a breach of any material term of this Agreement
and, if such breach is capable of being cured, fails to cure such breach within
30 days of receipt of notice of such breach;
(2) the Corporation removes the Executive from the position of President and
Chief Executive Officer of the Corporation, or the Executive's duties or
responsibilities are otherwise materially diminished, other than for Cause;
(3) the Executive's Base Salary is reduced below the Base Salary set forth
in Section 3(a) above; or
(4) the incentive compensation programs, welfare plans and any pension plan
offered to the Executive are materially diminished in comparison to such plans
enjoyed by the Executive upon his initial employment by the Corporation.
C. Executive's Rights to Terminate
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The Executive may, at his option, terminate his employment hereunder at any
time upon 30 days prior written notice to the Corporation.
D. Death
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This Agreement shall terminate automatically upon the Executive's death.
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E. Disability
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The Corporation may terminate the Executive's employment upon a good faith
determination by the Board that Executive has become so physically or mentally
disabled as to be incapable of satisfactorily performing his duties hereunder
for a period of 180 consecutive days, such determination to be based upon a
certificate as to such physical or mental disability issued by a licensed
physician or psychiatrist employed by the Corporation.
F. Without Cause
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The Corporation may, at its option, terminate the Executive's employment
without Cause at any time upon 30 days prior written notice to the Executive.
G. Date of Termination
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For purposes of this Agreement, the term "Date of Termination" shall mean
the later of the date that any party gives written notice that it intends to
terminate this Agreement pursuant to the terms hereof or the date, if any,
specified by the terminating party in such notice as the effective date of
termination.
9. Obligations of the Corporation Upon Termination
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(a) Cause - If the Executive's employment shall be terminated for
Cause, the Corporation's obligations to the Executive shall terminate, other
than the obligation (i) to pay to the Executive his Base Salary through the Date
of Termination at the rate in effect on the day preceding the Date of
Termination, and (ii) to continue to provide the Executive with benefits of the
type described in Section 4 through the Date of Termination.
(b) Voluntary - If the Executive terminates his employment for other
than Good Reason (a "Voluntary Termination"), this Agreement shall terminate
without further obligation to the Executive hereunder, other than the obligation
(i) to pay the Executive his Base Salary through the Date of Termination at the
rate in effect on the day preceding the Date of Termination and any previously
awarded but not yet paid cash bonus; and (ii) to continue to provide the
Executive with benefits of the type described in Section 4 through the Date of
Termination.
(c) Without Cause or for Good Reason - If the Corporation shall terminate
the Executive's employment without Cause, or if the Executive shall terminate
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his employment for Good Reason, the Corporation shall (i) continue in accordance
with the Corporation's normal payroll procedures to pay the Executive his Base
Salary through the date which is two years from the Date of Termination and the
pro rata portion of any cash bonus award the Executive would be entitled to
receive as of the end of the year in which the Date of Termination occurs, and
(ii) continue to provide the Executive with benefits of the type described in
Section 4 through the date which is two years from the Date of Termination. If
such termination shall occur within the first 120 days of the effective date of
this Agreement, the term "two years" in the fourth and eighth lines above shall
be changed to "one year."
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10. Non-Competition
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The Executive acknowledges and recognizes the highly competitive nature of
the business of the Corporation and its affiliates as well as his extensive
participation in the ownership of the common stock of the parent corporation.
The Executive accordingly agrees, until the second anniversary of the
Executive's termination or resignation of employment (such date being hereafter
referred to as the "Restricted Date"), as follows:
(a) The Executive will not directly or indirectly engage (as owner,
stockholder, partner or otherwise), except as a holder of fewer than 10% of the
outstanding shares or other equity interests of a company in any business which
directly competes with the business of the Corporation or any of its affiliates
within the same geographic areas in which the Corporation or any of its
affiliates engages in business at the time of the Executive's termination or
resignation, as the case may be.
(b) The Executive will not directly or indirectly induce any employee of
the Corporation or any of its affiliates to engage in any activity in which the
Executive is prohibited from engaging by subsection (a) above or to terminate
his employment with the Corporation or any of its affiliates, and will not
directly or indirectly employ or offer employment to any person who was employed
by the Corporation or any of its affiliates unless such person shall have been
terminated or ceased to be employed by any such entity for a period of at least
3 months.
(c) The Executive will not make any statement or take any action
intended to impair the goodwill or the business reputation of the Corporation or
any of its affiliates, or to be otherwise detrimental to the interests of the
Corporation or any of its affiliates, including any action or statement
intended, directly or indirectly, to benefit a competitor of the Corporation or
any of its affiliates. The Corporation agrees that it will not make any
statement or take any action intended to disparage or impair the business or
professional reputation of the Executive through the Restricted Date.
(d) It is expressly understood and agreed that although the Executive
and the Corporation consider the restrictions contained in this Section 10 to be
reasonable, if a final judicial determination is made by a court of competent
jurisdiction that the time or territory or any other restriction contained in
this Agreement is an unenforceable restriction against the Executive, the
provisions of this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such maximum
extent as such court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any restriction
contained in this Agreement is unenforceable, and such restriction cannot be
amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained herein.
11. Proprietary Information
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Through the Restricted Date, the Executive shall not use for his personal
benefit, or disclose, communicate or divulge to, or use for the direct or
indirect benefit on any person, firm, association or company other than the
Corporation, any Proprietary Information. "Proprietary
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Information" means information relating to the properties, prospects, products,
services or operations of the Corporation or any affiliate thereof that is not
generally known, is proprietary to the Corporation or such affiliate and is made
known to the Executive or learned or acquired by the Executive while in the
employ of the Corporation, including, without limitation, information concerning
trade secrets of the Corporation, or any of the Corporation's affiliates, and
any improvements relating to the products or services of the Corporation in
accounting, marketing, selling, leasing, financing and other business methods
and techniques. However, Proprietary Information shall not include (A) at the
time of disclosure to the Executive such information that was in the public
domain or later entered the public domain other than as a result of a breach of
an obligation herein; or (B) subsequent to disclosure to the Executive,
Executive received such information from a third party under no obligation to
maintain such information in confidence, and the third party came into
possession of such information other than as a result of a breach of an
obligation herein. All materials or articles of information of any kind
furnished to the Executive by the Corporation or developed by the Executive in
the course of his employment hereunder are and shall remain the sole property of
the Corporation; and if the Corporation requests the return of such information
at any time during, upon or after the termination of the Executive's employment
hereunder, the Executive shall immediately deliver the same to the Corporation.
12. Ownership of Proprietary Information
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The Executive agrees that all Proprietary Information shall be the sole
property of the Corporation and its assigns, and the Corporation and its assigns
shall be the sole owner of all licenses and other rights in connection with such
Proprietary Information. At all times until the Restricted Date, the Executive
will keep in the strictest confidence and trust all Proprietary Information and
will not use or disclose such Proprietary Information, or anything relating to
such information, without the prior written consent of the Corporation, except
as may be necessary in the ordinary course of performing his duties under this
Agreement.
13. Documents and Other Property
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All materials and articles of information of any kind furnished to the
Executive in the course of his employment hereunder are and shall remain the
sole property of the Corporation; and if the Corporation requests the return of
such information at any time during, upon or after the termination of the
Executive's employment hereunder, the Executive shall immediately deliver the
same to the Corporation. The Executive will not, without the prior written
consent of the Corporation, retain any documents, data or property, or any
reproduction thereof of any description, belonging to the Corporation or
pertaining to any Proprietary Information.
14. Third Party Information
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The Corporation from time to time receives from third parties confidential
or proprietary information subject to a duty on the Corporation's part to
maintain the confidentiality of such information and to use it only for certain
limited purposes ("Third Party Information"). At all times the Executive will
hold Third Party Information in the strictest confidence and will not
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disclose or use Third Party Information except as permitted by the agreement
between the Corporation and such third party.
15. Intellectual Property
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Any and all products, including but not limited to marketing and financing
materials and methods ("Products") made, developed or created by the Executive
(whether at the request or suggestion of the Corporation or otherwise, whether
alone or in conjunction with others, and whether during regular hours of work or
otherwise) (i) during the period of this Agreement, or (ii) within a period of
one year after the date of termination or resignation of employment hereunder,
which may be directly or indirectly useful in, or relate to, the business of or
tests being carried out by any member of the Corporation, shall be promptly and
fully disclosed by the Executive to the members of the Board and, if such
intellectual property was made, developed or created other than pursuant to the
Executive's employment hereunder, the Executive shall grant the Corporation a
perpetual, royalty free license to such intellectual property, and if such
intellectual property was made, developed or created pursuant to the Executive's
employment hereunder, such intellectual property shall be the Corporation's
exclusive property as against the Executive, and the Executive shall promptly
deliver to an appropriate representative of the Corporation as designated by the
Board all papers, drawings, models, data and other material relating to any
invention made, developed or created by him as aforesaid. The Executive shall,
at the request of the Corporation and without any payment therefor, execute any
documents necessary or advisable in the opinion of the Corporation's counsel or
direct issuance of patents or copyrights to the Corporation with respect to such
Products as are to be the Corporation's exclusive property as against the
Executive or to vest in the Corporation title to such Products as against the
Executive. The expense of securing any such patent or copyright shall be borne
by the Corporation.
16. Customer Lists
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The Executive will not during, or for a period of two years after the
termination of, his employment (i) disclose the Corporation's (including its
subsidiaries') customer lists or any part thereof to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever,
(ii) assist in obtaining any of the Corporation's (including its subsidiaries')
existing customers for any competing business, or (iii) encourage any customer
to terminate its relationship with the Corporation or any of its subsidiaries.
17. Equitable Relief
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The Executive acknowledges that, in view of the nature of the business in
which the Corporation is engaged, the restrictions contained in Sections 10
through 16 inclusive (the "Restrictions") are reasonable and necessary in order
to protect the legitimate interests of the Corporation, and that any violation
thereof would result in irreparable injuries to the Corporation, and the
Executive therefore further acknowledges that, if the Executive violates, or
threatens to violate, any of the Restrictions, the Corporation shall be entitled
to obtain from any court of competent jurisdiction, without the posting of any
bond or other security, preliminary and permanent injunctive relief as well as
damages and an equitable accounting of all earnings,
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profits and other benefits arising from such violation, which rights shall be
cumulative and in addition to any other rights or remedies in law or equity to
which the Corporation may be entitled.
18. Binding Effect
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This Agreement shall be binding upon and inure to the benefit of the heirs
and representatives of the Executive and the successors and assigns of the
Corporation. The Corporation shall require any successor (whether direct or
indirect, by purchase, merger, reorganization, consolidation, acquisition of
property or stock, liquidation or otherwise) to all or a significant majority of
its assets, by agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Corporation would be required to perform this
Agreement if no such succession had taken place. Regardless of whether such
agreement is executed, this Agreement shall be binding upon any successor of the
Corporation in accordance with the operation of law and such successor shall be
deemed the "Corporation" for purposes of this Agreement.
19. Notices
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All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered by hand or
sent by facsimile transmission with telephonic confirmation of receipt, or
mailed within the continental United States by first-class certified mail,
return receipt requested, postage prepaid, addressed as follows:
(a) if to the Board or the Corporation, to:
Southern Pacific Bank
23530 Hawthorne Boulevard
Torrance, CA 90505
Attention: General Counsel
(b) if to the Executive, to:
Richard S. Cupp
4253 Mesa Vista Drive
La Canada Flintridge, CA 91011
Such addresses may be changed by written notice sent to the other party at the
last recorded address of that party.
20. Arbitration of All Disputes
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(a) Any controversy or claim arising out of or relating to this
Agreement or the breach thereof (including the arbitrability of any controversy
or claim), shall be settled by arbitration in the City of Los Angeles in
accordance with the laws of the State of California by one arbitrator. If the
parties cannot agree on the appointment of an arbitrator, then the arbitrator
shall be appointed by the American Arbitration Association. The arbitration
shall be conducted
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in accordance with the rules of the American Arbitration Association, except
with respect to the selection of an arbitrator which shall be as provided in
this Paragraph 20. The cost of any arbitration proceeding hereunder shall be
borne by the Corporation. The award of the arbitrator shall be binding upon the
parties. Judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof.
(b) If it shall be necessary or desirable for the Executive to retain
legal counsel and incur other costs and expenses in connection with the
enforcement of any or all of his rights under this Agreement, and provided that
the Executive substantially prevails in the enforcement of such rights, the
Corporation shall pay (or the Executive shall be entitled to recover from the
Corporation, as the case may be) the Executive's reasonable attorneys' fees and
costs and expenses in connection with the enforcement of his rights including
the enforcement of any arbitration award.
21. No Assignment
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Except as otherwise expressly provided herein, this Agreement is not
assignable by any party and no payment to be made hereunder shall be subject to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
other charge.
22. Execution in Counterparts
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This Agreement may be executed by the parties hereto in two counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
constitute one and the same instrument, and all signatures need not appear on
any one counterpart.
23. Jurisdiction and Governing Law
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This Agreement shall be construed and interpreted in accordance with and
governed by the laws of the State of California, without reference to its
conflict of laws provisions.
24. Severability
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If any provision of this Agreement shall be adjudged by any court of
competent jurisdiction to be invalid or unenforceable for any reason, such
judgment shall not affect, impair or invalidate the remainder of this Agreement.
25. Entire Agreement
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This Agreement embodies the entire agreement of the parties hereto, and
supersedes all other oral or written agreements or understandings between them
regarding the subject matter hereof. No change, alteration or modification
hereof may be made except in a writing, signed by each of the parties hereto.
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26. Headings Descriptive
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The headings of the several paragraphs of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
SOUTHERN PACIFIC BANK RICHARD S. CUPP
By: _______________________________ _____________________________
Name: Robert Muehlenbeck,
on behalf of the Board of Directors
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