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Ex 2.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the
1st day of September, 2000 (the "Agreement Effective Date"), by and between
CALIFORNIA COMMUNITY BANCSHARES, INC., a Delaware corporation ("Bancshares"
or "Employer") and HARVEY FERGUSON (the "Employee") (collectively, the
"parties"):
WHEREAS, Employee has been employed by Bancshares and Bancshares's
predecessor, California Financial Bancorp ("CFB"), as the President and Chief
Executive Officer of Bancshares's wholly-owned subsidiary, Bank of Orange
County (the "Bank"), pursuant to that certain Employment Agreement dated May
4, 1999 by and among Employee, the Bank and CFB (the "Prior Employment
Agreement");
WHEREAS, Bancshares and Employee desire, as of the Agreement
Effective Date, to cancel and to terminate the Prior Employment Agreement;
WHEREAS, the parties hereto desire to enter into a new agreement, as
of the Agreement Effective Date, for the purpose of retaining the services of
Employee for Bancshares as its Executive Vice President and Chief
Administrative Officer;
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
1. EMPLOYMENT AND DUTIES. Employer and Employee hereby enter into this
Agreement upon the terms and conditions hereinafter set forth. Employee
is hereby employed, at the pleasure of the Board of Directors of
Bancshares (the "Board"), as Executive Vice President and Chief
Administrative Officer of Bancshares. Employee shall perform the
customary duties of an Executive Vice President and Chief
Administrative Officer of a multi-bank holding company as described in
Appendix I attached hereto and incorporated by reference, and such
attendant duties as may, from time to time, be reasonably requested of
Employee by the Board.
2. EXTENT OF SERVICES.
a) Employee shall devote Employee's full time, ability and
attention to the business of Employer during the term of this
Agreement, and shall neither directly nor indirectly render
any services of a business, commercial or professional nature
to any other person, firm, corporation or organization for
compensation without the prior written consent of the Board.
b) Nothing contained herein shall be construed to prevent
Employee from investing Employee's assets in any form or
manner which does not in any manner or for any amount of time
interfere with Employee's performance of services on behalf of
Employer.
3. TERM OF EMPLOYMENT. Subject to prior termination of this Agreement as
hereinafter provided, Employer hereby employs Employee, and Employee
hereby accepts
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employment with Employer, for a period beginning on the Agreement
Effective Date and ending December 31, 2003 (the "Employment Term").
4. COMPENSATION AND BENEFITS. In consideration of Employee's services to
Employer during the Employment Term, Employer agrees to compensate
Employee, subject to such limitations as may exist under any applicable
state or federal banking law or regulation, as follows:
a) BASE COMPENSATION. Employer shall pay or cause to be paid to
Employee a base compensation of $185,000 per year, payable in
conformity with Employer's normal payroll procedures (the
"Base Salary"), and prorated for any partial calendar year in
which this Agreement is in effect.
b) BONUS. Employee shall be eligible to receive an incentive
bonus for each fiscal year of employment in accordance with
the terms of the Executive Compensation Program to be adopted
by Employer.
c) GENERAL EXPENSES. Employer shall, upon submission and approval
of written statements and bills in accordance with the then
regular procedures of Employer, pay or reimburse Employee for
any and all necessary, customary and usual expenses incurred
by him while traveling for or on behalf of Employer, and any
and all other necessary, customary or usual expenses
(including entertainment) incurred by Employee for or on
behalf of Employer in the normal course of business, as
determined to be appropriate by Employer.
d) INSURANCE.
i) Employee shall be entitled to participate in such
group life insurance, health and long-term disability
plans as are provided by Employer to its employees
and/or senior executives, with such terms, conditions
and contributions as Employer generally provides its
other employees and/or senior executives. Employee
shall have the right, in Employee's discretion, to
designate the beneficiary or beneficiaries of any
such insurance.
ii) Employer shall continue to pay Employee's cancer
insurance premiums during the Employment Term.
e) AUTOMOBILE ALLOWANCE AND COUNTRY CLUB MEMBERSHIP. During the
Employment Term , Employee shall be entitled to an automobile
allowance of $800 per month (less any customary withholding
and employment taxes). Except for this automobile allowance,
Employer shall not be obligated to pay any other expenditure
with respect to the ownership, registration, operation,
insurance or maintenance of Employee's automobile.
Additionally, during the Employment Term, Employer shall pay
the dues for an individual membership for Employee in the Alta
Vista Country Club.
f) VACATION. Employee shall accrue four (4) weeks' paid vacation
leave per calendar year, pro rated on a daily basis for any
partial calendar year in which this
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Agreement is in effect. Such vacation leave shall be taken at
such time or times as are mutually agreed upon by Employee and
the Board, if appropriate, and in accordance with Employer's
vacation leave policy. For each calendar year, the Board shall
decide, in its discretion, either (i) to pay Employee for any
accrued and unused vacation time for such calendar year at the
end of the calendar year in which it was accrued or (ii) to
carry over any accrued and unused vacation time for such
calendar year to the next calendar year, provided, however,
that Employee shall accrue no additional vacation time at any
time that the Employee has accrued and unused vacation time of
six (6) weeks.
g) STOCK OPTIONS. As more fully set forth in that certain PCC
Nonstatutory Stock Option Agreement by and between PCC and
Employee, Employee was granted an option to purchase shares of
common stock of PCC. Bancshares' obligations with respect to
the stock option evidenced by said PCC Nonstatutory Stock
Option Agreement shall be governed by the terms and conditions
of the Assumption Agreement. In addition, any and all stock
options previously granted to Employee under any stock option
plan of Employer or any affiliate of Employer and unexercised
by Employee as of December 31, 2003 shall be exercisable until
December 31, 2005.
h) OTHER BENEFITS. Employee shall be entitled to participate
during the Employment Term in such other benefits of Employer,
if any, as Employer now or hereafter shall provide for its
employees and/or senior executives generally, in accordance
with the applicable terms and conditions thereof.
5. TERMINATION OF AGREEMENT. This Agreement may be terminated with or
without cause during the Employment Term in accordance with this
Section 5. In the event of such termination, Employee shall be released
from all obligations under this Agreement, except that Employee shall
remain subject to Sections 7, 8, 9(b), 9(c), 13, 15 and 18, and
Employer shall be released from all obligations under this Agreement,
except as otherwise provided in this Section 5 and Sections 9(b), 13,
15 and 18.
a) EARLY TERMINATION BY EMPLOYER WITHOUT CAUSE OR BY EMPLOYEE
UPON CHANGE IN TITLE. This Agreement and Employee's employment
may be terminated (i) by Employer without cause, for any
reason whatsoever, in the sole, absolute and unreviewable
discretion of Employer, upon written notice by the Board to
Employee; or (ii) by Employee in the event that Employer
changes Employee's titles or duties from those contemplated
under Section 1 of this Agreement. In the event of termination
pursuant to this Section 5(a), Employee shall receive a single
sum severance payment equal to twelve (12) months of his then
current Base Salary plus any incentive bonus prorated, if
necessary, for a partial year of employment, less customary
withholdings and any and all stock options previously granted
to Employee under any stock option plan of Employer or any
affiliate of Employer and held by Employee at the date of
termination shall become fully vested and shall be exercisable
for a period of two (2) years after the date of termination
(the "Severance Pay") as liquidated damages in lieu of any and
all claims by Employee against Employer, and shall be in full
and complete
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satisfaction of any and all rights which Employee may enjoy
hereunder, in consideration of a full and unconditional
release of any and all liability of Employer or any of its
shareholders, benefit plans, affiliated companies,
partnerships, limited partnerships or limited liability
companies, and the directors, officers, employees and agents
of such entities and their successors or assigns, arising out
of this Agreement or out of the employment relationship
between Employee and Employer (in the form of Exhibit A,
hereafter the "Release"), except that Employee shall be
entitled to receive (i) those benefits, if any, that have
vested by operation of state or federal law or under any
written term of a plan ("Vested Benefits"), and (ii) health
care coverage continuation rights under the consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA Rights").
Payment of the Severance Pay is expressly conditioned upon
receipt by Employer of the executed Release.
b) EARLY TERMINATION BY EMPLOYER FOR CAUSE. This Agreement and
Employee's employment may be terminated for cause by Employer
upon written notice to Employee, and Employee shall not be
entitled to receive compensation or other benefits for any
period after termination for cause except that Employee shall
be entitled to receive any Vested Benefits and COBRA Rights.
Employee understands and agrees that his satisfactory
performance of this Agreement requires conformance with
reasonable standards of diligence, competence, skill, judgment
and efficiency of a person holding the position of an
Executive Vice President and Chief Administrative Officer of a
multi-bank holding company similar to Employer and as
prescribed by any applicable federal banking and bank holding
company laws and regulations, and that failure to conform to
such standards is cause for termination of this Agreement by
Employer. "For cause" pursuant to this Agreement shall
include, but not be limited to: (i) any act of material
dishonesty; (ii) any material breach of this Agreement or any
breach of a fiduciary duty (involving personal profit); (iii)
any habitual neglect of, or habitual negligence in carrying
out, those duties contemplated under Section 1 of this
Agreement; (iv) any willful violation of any law, rule or
regulation, which, by virtue of bank or bank holding company
regulatory restrictions imposed as a result thereof, would
have a material adverse effect on the business or financial
prospects of Employer; (v) any conviction of any felony or
misdemeanor which may be reasonably interpreted to be harmful
to the Employer's reputation ; (vi) any failure by Employee to
qualify at any time during the Employment Term for any
fidelity bond as described in Section 6 of this Agreement;
(vii) the requirement to comply with any final
cease-and-desist order or written agreement with any
applicable state or federal bank regulatory authority which
requests or orders Employee's dismissal or limits Employee's
employment duties; (viii) any conduct which constitutes unfair
competition with the Employer or its affiliates; or (ix) the
inducement of any client, customer, agent or employee to break
any contract or terminate the agency or employment
relationship with the Employer or its affiliates. Termination
for cause by Employer shall not constitute a waiver of any
remedies which may otherwise be available to Employer under
law, equity, or this Agreement.
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c) EARLY TERMINATION BY EMPLOYEE. Employee may terminate this
Agreement upon ninety (90) days' written notice to Employer.
Employee shall not be entitled to receive compensation or
other benefits under this Agreement for any period after such
early termination by Employee, except any Vested Benefits and
COBRA Rights.
d) DEATH DURING EMPLOYMENT. This Agreement and all benefits
hereunder shall terminate immediately upon the death of
Employee, provided that such termination of benefits shall not
operate to prejudice or forfeit the rights of any beneficiary
or beneficiaries of any life and/or disability insurance
policies on the life of Employee obtained pursuant to Section
4(d) hereof or any Vested Benefits and COBRA Rights.
e) DISABILITY. This Agreement and all benefits hereunder shall
terminate if Employee is not able, as a result of an illness
or other physical or mental disability, to perform the
essential functions of his position as required by this
Agreement for a period of three (3) consecutive months or in
excess of one hundred eighty (180) days in any one (1) year
period, notwithstanding reasonable accommodation by Employer
to Employee's known physical or mental disability, solely in
accordance with, and to the extent required by, the Americans
with Disabilities Act, 29 U.S.C. Sections 12101-213 (the
"ADA"), the California Fair Employment and Housing Act
(California Government Code Sections 12900-12996 (the "FEHA"),
or any other state or local law governing the employment of
disabled persons (provided such accommodation would not impose
an undue hardship on the operation of Employer's business or a
direct threat to the Employee or others) pursuant to the ADA,
the FEHA, or any other applicable state or local law governing
the employment of disabled persons.
f) MERGER OR CORPORATE DISSOLUTION.
i) In the event of a (a) merger in which Employer is not
the surviving corporation a majority of the capital
stock of which is not owned by the majority
shareholder of Employer or an affiliate thereof; (b)
a transfer of all or substantially all of the assets
of Employer; (c) a merger, transfer of assets, or any
other corporate reorganization in which there is a
change of ownership of the outstanding shares of
Employer, between Employer and its majority
shareholder or between Employer and any affiliate of
its majority shareholder; (d) any other corporate
reorganization in which there is a change in
ownership of the outstanding shares of Employer
wherein more than fifty percent (50%) of the
outstanding shares of Employer is transferred to any
other partnership, limited partnership, corporation,
limited liability company, trust or business entity
(collectively a "Change in Control"); or (e) the
dissolution of Employer, this Agreement shall not be
terminated, but instead, the surviving or resulting
corporation, the transferee of Employer's assets, or
Employer shall be bound by and shall have the benefit
of the provisions of this Agreement. Notwithstanding
the foregoing, in the event of a Change in Control
and in the event that, during the twelve
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month period following such Change in Control, except
a Change in Control as defined in 5(f)(i)(c) above,
Employee terminates employment with Employer
(pursuant to Section 5(c) above) following a
reduction in the Employee's duties or title, Employee
shall be eligible to receive the Severance Pay as
defined in Section 5(a) above as liquidated damages
in lieu of any and all claims by Employee against
Employer, and shall be in full and complete
satisfaction of any and all rights which Employee may
enjoy hereunder, in consideration of a release of any
and all liability of Employer or any of its
affiliates, directors, officers, employees and
agents, arising out of this Agreement, or out of the
employment relationship or termination of the
employment relationship between Employee and
Employer, in the form of the Release, except any
Vested Benefits and COBRA Rights. Notwithstanding
anything to the contrary provided herein, in the
event the amounts payable to Employee in the event
of a Change in Control would, if they included such
termination payments and stock option and vesting
accelerations to be made pursuant to this
Section 5(f), constitute Excess Parachute Payments
for purposes of Sections 280G(b) and 4999 of the
Internal Revenue Code of 1986, as amended, ("IRC") or
any successor statute) (after application of IRC
Section 280G(b)(4)), the amount payable under this
Section 5(f) shall be reduced by the amount necessary
to cause Employee to receive no Excess Parachute
Payments.
ii) If Employer is not the surviving entity in any
transaction referred to in this Section 5(f) and said
transaction is in any manner the result of any action
taken at the direction of any supervisory authority
whatsoever, then in such event this Agreement shall
terminate immediately upon the consummation of such
transaction and Employee agrees that all rights,
duties, obligations, and benefits herein contained
shall thereupon terminate and that Employee shall be
entitled to no further compensation or benefits from
Employer except any Vested Benefits and COBRA Rights.
6. FIDELITY BOND. Employee agrees that he will furnish all information and
take any other steps necessary to enable Employer to obtain or maintain
a fidelity bond conditional on the rendering of a true account by
Employee of all moneys, goods, or other property which may come into
the custody, charge or possession of Employee during the term of
Employee's employment. The surety company issuing the bond and the
amount of the bond must be acceptable to Employer and satisfy all
banking laws and regulations. All premiums on the bond are to be paid
by Employer. If Employee cannot qualify for a fidelity bond at any time
during the term of this Agreement, Employer shall have the option to
terminate this Agreement immediately, which shall constitute a
termination for cause as defined in Section 5(b) hereof.
7. PRINTED MATERIAL. All written or printed materials which shall include,
but not be limited to, computer software, programs and files, used by
Employee in performing duties for Employer are, and shall remain, the
property of Employer, provided that any materials which belonged
personally to Employee prior to his employment with Employer are, and
shall remain, the property of Employee. Upon termination of Employee's
employment
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with Employer, Employee shall return such applicable written or printed
materials to Employer.
8. DISCLOSURE OF INFORMATION. Employee recognizes and acknowledges that
Employer possesses trade secrets and other confidential and/or
proprietary information concerning its business affairs and methods of
operation which constitute valuable, confidential, and unique assets of
its business and that of its affiliates ("Proprietary Information"),
which Employer has developed through a substantial expenditure of time
and money and which are and will continue to be utilized in Employer's
business and which are not generally known in the trade. At any time
before or after termination of this Agreement, Employee agrees not to
disclose to anyone any Proprietary Information and not to make use of
any Proprietary Information for his own purposes or for the benefit of
anyone other than Employer under any circumstances. For purposes of
this Section 8, Proprietary Information includes, without limitation,
all information regarding products, services, processes, know-how,
customers, suppliers, product and/or service development, business and
capital plans, research, finances, marketing, pricing, costs and any
other confidential matters relating to Employer or any affiliate of
Employer. Employee recognizes and acknowledges that all financial
information concerning any of Employer's customers, products or
financial results is strictly confidential, and Employee shall not, at
any time before or after termination of this Agreement, disclose to
anyone any such information or any part thereof, for any reason or
purpose whatsoever except to the extent that such information is
already otherwise publicly available or to the extent such disclosure
is required by Employee in order to comply with judicial process or
applicable regulations of any state or federal bank regulatory agency.
Employee hereby acknowledges the particular value to Bancshares of this
Section 8, the loss of which cannot be reasonably or adequately
compensated in an action at law or in arbitration. Therefore, Employee
expressly agrees that Bancshares, in addition to any other rights or
remedies that Bancshares shall possess, shall be entitled to injunctive
and other equitable relief to prevent or remedy a breach of this
Section 8 by Employee, without the necessity of posting any bond.
Employee's obligation under this Section 8 shall survive the
termination of this Agreement and/or the termination of employment.
9. NON-COMPETITION BY EMPLOYEE: CONSULTING AGREEMENT.
a) Employee shall not, during the Employment Term, directly or
indirectly, either as an employee, employer, consultant,
agent, principal, partner, shareholder, corporate officer,
director, or in any other individual or representative
capacity, engage or participate in any competing bank or
financial institution or financial services business without
the prior written consent of the Board; provided, however,
Employee shall not be restricted by this Section from owning
securities of corporations listed on a national securities
exchange or regularly traded by national securities dealers so
long as such investment does not exceed one percent of the
market value of the outstanding securities of such
corporation.
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b) In the event that this Agreement is terminated pursuant to
Section 5(a) hereof within twelve (12) months after the
Agreement Effective Date (the "Early Termination Date"),
Employee agrees thereafter to provide consulting services and
not to compete with Employer under the terms and conditions
set forth in the Consulting and Non-Competition Agreement
attached hereto as Exhibit B ("Consulting Agreement").
c) Notwithstanding anything to the contrary set forth elsewhere
in this Agreement, Employee agrees that (i) the Consulting
Agreement shall take effect only in the event of and upon the
termination of Employee's employment with Employer pursuant to
Section 5(a) of this Agreement; and (ii) the obligation of the
Employer to pay fees under the Consulting Agreement is wholly
independent of and shall in no way affect the provisions set
forth in Section 5(a) including, without limitation, the
Severance Pay as set forth in Section 5(a).
10. NOTICES. Any notices to be given hereunder by either party to the other
may be effected in writing either by personal delivery or by mail,
registered or certified, postage prepaid with return receipt requested.
Notices to Employer shall be given to Bancshares at its then current
principal office, c/o Chairman of the Board of Directors. Notices to
Employee shall be sent to Employee's then current personal residence.
Notices delivered personally shall be deemed communicated as of actual
receipt; mailed notices shall be deemed communicated as of five (5)
calendar days after mailing.
11. ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with
respect to the employment of Employee by Employer (including without
limitation the Prior Employment Agreement) and contains all of the
covenants, rights, obligations and agreements between the parties with
respect to such employment. Each party to this Agreement acknowledges
that no representations, inducements, promises or agreements, oral or
otherwise, have been made by any party, or anyone acting on behalf of
any party, which are not embodied herein, and that no other agreement,
statement or promise not contained in this Agreement shall be valid and
binding. Any modification of this Agreement will be effective only if
it is in writing signed by all parties to the Agreement.
12. SEVERABILITY. In the event that any term or condition contained in this
Agreement shall, for any reason, be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any
other term or condition of this Agreement, but this Agreement shall be
construed as if such invalid or illegal or unenforceable term or
condition had never been contained herein.
13. CHOICE OF LAW AND FORUM. This Agreement shall be governed by and
construed in accordance with the laws of the State of California,
except to the extent preempted by the laws of the United States. Any
action or proceeding brought upon, or arising out of, this Agreement or
its termination shall be brought in a forum located within the County
of Orange, State of California, and Employee hereby agrees to be
subject to service of process in California.
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14. WAIVER. The parties hereto shall not be deemed to have waived any of
their respective rights under this Agreement unless the waiver is in
writing and signed by such waiving party. No delay in exercising any
rights shall be a waiver nor shall a waiver on one occasion operate as
a waiver of such right on a future occasion.
15. INDEMNIFICATION. Employer shall indemnify Employee, to the maximum
extent permitted under the Certificate of Incorporation and bylaws of
Employer and governing laws and regulations, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by Employee in connection
with any threatened or pending action, suit or proceeding to which
Employee is made a party by reason of his position as an officer or
agent of Employer or by reason of his service at the request of
Employer, if Employee acted in good faith in the course and scope of
his employment and in a manner believed to be in or not opposed to the
best interests of Employer. If available at rates determined by
Employer, in its sole discretion, to be reasonable, Employer shall
endeavor to apply for and obtain directors' and officers' liability
insurance to indemnify and insure Employer and Employee from such
liability or loss.
Notwithstanding the foregoing, in any administrative proceeding or
civil action initiated by any federal or state banking agency, Employer
may only reimburse, indemnify or hold harmless Employee if Employer is
in compliance with any applicable statute, rule, regulation or policy
of the Board of Governors of the Federal Reserve System or any other
state or federal bank regulatory agency which then has jurisdiction
over Employer regarding permissible indemnification payments.
16. ASSIGNMENT. Neither this Agreement nor any of the rights or benefits
hereunder shall be subject to execution, attachment or similar process,
nor may this Agreement or any rights or benefits hereunder be assigned,
transferred, pledged or hypothecated without the written consent of
both parties hereto, except as provided in Sections 4(d) and 5(d)
hereof.
17. CAPTIONS AND PARAGRAPH HEADINGS. Captions and paragraph headings used
herein are for convenience and ready reference only and are not a part
of this Agreement and shall not be used in the construction or
interpretation thereof.
18. ARBITRATION. In the event any dispute should arise between the parties
hereto concerning the interpretation of any term of this Agreement, or
the performance of any obligation hereunder, such dispute shall be
resolved exclusively (except as provided by the provisions of this
Paragraph) by referral to arbitration under the National Rules for the
Resolution of Employment Disputes of the American Arbitration
Association (the "AAA"). The arbitration shall be held in Los Angeles,
California or at such other location as the parties agree. In any such
dispute, Employee shall be obligated to pay to the AAA only his own
filing fees. All other AAA fees, including arbitrators' fees, shall be
borne by Employer. Notwithstanding the arbitration provisions hereof,
any party hereto shall have the right to seek injunctive relief from
any court of competent jurisdiction for any breach of this Agreement
for which injunctive relief is an appropriate remedy.
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19. WITHHOLDING. Any payments provided for hereunder shall be paid net of
any applicable withholding required under federal, state or local law
and any additional withholding to which you have agreed.
20. TERMINATION OF PRIOR EMPLOYMENT AGREEMENT. Employer and Employee agree
that the Prior Employment Agreement is hereby canceled, terminated,
rescinded and superceded, that Employee has received all amounts due
and owing under the Prior Employment Agreement and Employer has no
obligations thereunder, and Employee hereby releases Employer from any
and all claims, debts or obligations under the Prior Employment
Agreement.
EXECUTED as of the 1st day of September, 2000.
EMPLOYER: EMPLOYEE:
CALIFORNIA COMMUNITY BANCSHARES, INC.
/s/ Ronald W. Bachli /s/ Harvey Ferguson
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By: Ronald W. Bachli, Harvey Ferguson
President & Chief Executive Officer
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APPENDIX I
POSITION DESCRIPTION
POSITION: CHIEF ADMINISTRATIVE OFFICER/EXECUTIVE VICE PRESIDENT
DEPARTMENT: ADMINISTRATION FOR CCB
REPORTS TO: PRESIDENT/C.E.O.
SUMMARY
Provides leadership and direction for holding company and subsidiary
bank activities pertaining to the Human Resource Coordination and training,
Data Processing/Network Administration, Bank Operations including the
coordination of Bank compliance (CRA, Lending and Operational), internal
audits, facilities management and Acquisition Integration.
PRIMARY DUTIES AND RESPONSIBILITIES:
Direct the development, planning and organization of the Human Resource
Department to insure the standardization of policies, procedures, compliance
issues and all other HR activities within the CCB system.
Investigate opportunities relating to the standardization of data processing
applications; including Network administration and the development of system
applications and/or conversion to new systems (if applicable) based on the
needs of the company and its subsidiaries.
Serves on and/or directs a number of operational committees to ensure
effective interface among subsidiaries including - but not limited to -
internal auditing, facilities management and new product development and
implementation.
Assumes administrative responsibility for a number of major organizational
components, directing the activities of subordinate executives and managers.
Contribute and assist in the formulation of the development, recommendations,
and administration of company and subsidiary policies and business goals.
Administrative responsibility for all compliance programs including Community
Reinvestment Act., lending regulations and operational compliance.
SUPERVISORY RESPONSIBILITIES
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Directs subordinate officers of holding company and coordinates officers of
subsidiary banks, as needed, to accomplish corporate goals and directives
with regards to and projects assigned to the Chief Administrative Officer.
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EXHIBIT A
RELEASE AGREEMENT
This Release Agreement ("Release") was given to me, Harvey Ferguson
("Employee"), this _____day of _________ , _______, by CALIFORNIA COMMUNITY
BANCSHARES, INC. ("Bancshares") (the "Employer"). At such time as this
Release becomes effective and enforceable (i.e., the revocation period
discussed below has expired), and assuming such Employee is otherwise
eligible for payments under the terms of that certain Employment Agreement
between Employee and Employer dated September 1, 2000 (the "Agreement"),
Employer agrees to pay Employee pursuant to the terms of the Agreement (i) an
amount equal to $ ________ (minus customary payroll deductions and any
outstanding obligations owed by the Employee to Employer); (ii) to provide
any Vested Benefits and COBRA Rights, as these terms are defined in the
Agreement; and (iii) any and all stock options previously granted to Employee
under any stock option plan of Employer or any affiliate of Employer and held
by Employee at the date of termination shall become fully vested and shall be
exercisable for a period of two (2) years after the date of termination.
In consideration of the receipt of the promise to pay such amount
and provide such benefits and the acceleration of vesting and extension of
exercisability of such stock options, Employee hereby agrees, for himself or
his heirs, executors, administrators, successors and assigns (hereinafter
referred to as the "Releasors"), to fully release and discharge Employer and
its officers, directors, employees, agents, insurers, underwriters,
subsidiaries, parents, affiliates, successors and assigns (hereinafter
referred to as the "Releasees") from any and all actions, causes of action,
claims, obligations, costs, losses, liabilities, damages and demands under
any federal, state or local law or laws, or common law, whether or not known,
suspected or claimed, which the Releasors have, or hereafter may have,
against the Releasees arising out of or in any way related to Employee's
employment or termination of employment with Employer.
It is understood and agreed that this Release extends to all such
claims and/or potential claims, and that Employee, on behalf of the
Releasors, hereby expressly waives all rights with respect to all such claims
under California Civil Code Section 1542, which provides as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his or
her favor at the time of executing the release, which
if known by him or her must have materially affected
his or her settlement with the debtor.
It is further understood and AGREED that this Release includes
claims and rights Employee might have under the Age Discrimination in
Employment Act ("ADEA"). The Employee's waiver of rights under the ADEA does
not extend to claims or rights that might arise after the date this Release
is executed. The monies to be paid to the Employee in this Release are in
addition to any sums to which he would be entitled without signing this
Release. For a period of seven (7) days following execution of this Release,
Employee may revoke the terms of this Release by a written document received
by Bancshares on or before the end of the seven (7) day period. The Release
will not be final until said revocation period has expired. No payments will
be made under the Agreement if the Employee revokes this Release.
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Employee executes this Release without reliance on any
representation by any Releasee. Employee acknowledges that he has read and
does understand the provisions of the Release set forth in the preceding
paragraph, that he has had an opportunity to consult with an attorney prior
to executing this Release, that he has had the right to consider entering
into this Release for a full twenty-one (21) days from receipt of this
Release, and that in executing this Release after less than a full twenty-one
(21) days of consideration, he is voluntarily and forever waiving his right
to consider it for twenty-one (21) days prior to executing it, that he
affixes his signature hereto voluntarily and without coercion, and that no
promise or inducement has been made other than those set out in this Release.
This document does not constitute, and shall not be admissible as evidence
of, an admission by any Releasee as to any fact or matter.
In case any part of this Release is later deemed to be invalid,
illegal or otherwise unenforceable, Employee agrees that the legality and
enforceability of the remaining provisions of this Release will not be
affected in any way.
Dated: ________ , __________ ------------------------------------
Harvey Ferguson
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EXHIBIT B
CONSULTING AND NON-COMPETITION AGREEMENT
THIS CONSULTING AND NON-COMPETITION AGREEMENT (the "Agreement") is
made and entered into as of this 1st day of September, 2000, by and between
CALIFORNIA COMMUNITY BANCSHARES, INC., a Delaware corporation ("Bancshares")
and HARVEY FERGUSON ("Consultant") (collectively, the "Parties").
RECITALS
A. Bancshares entered into an employment agreement with Consultant
effective as of September 1, 2000 (the "Employment Agreement") to act as
Executive Vice President and Chief Administrative Officer of Bancshares.
B. Bancshares desires to obtain the services of Consultant in the
event that Consultant's employment with Bancshares is terminated under the
Employment Agreement by Bancshares pursuant to Section 5(a) of the Employment
Agreement, and Consultant desires in such event to provide personal services
to Bancshares;
C. Bancshares desires to retain Consultant to serve on an
independent contractor basis; and
D. Consultant will perform such consulting services and not compete
with Bancshares's business during the term of this Agreement, provided
Bancshares agrees to pay Consultant fees in accordance with the terms and
conditions hereinafter set forth.
In consideration of the services to be performed in the future as
well as the mutual promises and covenants herein contained, it is agreed as
follows:
1. CONSULTANT SERVICES; BANK'S RESPONSIBILITIES.
(a) CONSULTANT'S SERVICES. In the event that the Employment
Agreement is terminated pursuant to Section 5(a) of the Employment Agreement
(the "Early Termination Date"), Consultant agrees to provide consulting
services as requested by Bancshares including, but not limited to, in the
areas of strategic planning and business development (the "Consulting
Services") for the Term (as defined in Section 2 below). In performing the
Consulting Services, Bancshares shall not obligate the Consultant to devote
more than an average of two (2) hours per week in providing the Consulting
Services. At the request of Bancshares, the Consulting Services may be
provided by telephone or at a site or sites other than at the offices of
Bancshares.
(b) BANCSHARES'S RESPONSIBILITIES. Bancshares shall cooperate
with the Consultant and provide all information and direction necessary to
accomplish the purposes of this Agreement. Bancshares shall provide all
administrative facilities and support necessary for the accomplishment of the
Consulting Services.
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2. TERM. Subject to the provisions for termination provided in
paragraph 6, the term of this Agreement shall begin as of the Early
Termination Date and shall end upon the expiration of eighteen (18) months
after the Early Termination Date (the "Term").
3. FEES. Bancshares agree to pay to Consultant, and Consultant
agrees to accept as full payment for the performance of services hereunder
and for Consultant complying with the non-competition provision in Section 8
below, a monthly fee in the amount of one-eighteenth of Consultant's Base
Salary (as defined in the Employment Agreement) as of the Early Termination
Date, payable within five (5) business days of the month immediately
following each such month during which the Consulting Services are rendered
and Consultant complies with Section 8. Bancshares shall pay such fees
without withholding any Federal or state or local taxes.
4. EXPENSES. Consultant shall not be reimbursed for the expenses
incurred or paid by him in the provision of Consulting Services under this
Agreement; provided, however, that Bancshares shall, upon submission and
approval of written statements and bills in accordance with the then regular
procedures of Bancshares, pay or reimburse Consultant for any and all
necessary, customary and usual expenses incurred by him while traveling for
or on behalf of Bancshares, and any and all other necessary, customary or
usual expenses (including entertainment) incurred by Consultant for or on
behalf of Bancshares in the normal course of business, as determined to be
appropriate by Bancshares.
5. INDEPENDENT CONTRACTOR. Bancshares and the Consultant acknowledge
that during the Term the Consultant will not be an employee of Bancshares and
will be working as an independent contractor for Bancshares. Accordingly,
Consultant shall be responsible for payment of all taxes including federal,
state and local taxes arising out of Consultant's activities in accordance
with this Agreement, including by way of illustration but not limitation,
federal and State income tax, Social Security tax, Unemployment Insurance
taxes, and any other taxes or business license fees as required. Consultant
shall not earn any additional medical, dental, life insurance, retirement
benefits, paid vacations or sick leave or any other employee benefits as a
result of his providing Consulting Services to Bancshares.
6. TERMINATION OF AGREEMENT. If this Agreement is terminated
pursuant to this paragraph 6, Bancshares shall have no further liability to
Consultant other than for fees or expenses incurred as of the date of
termination but not yet paid.
(a) TERMINATION BY BANCSHARES FOR CAUSE. This Agreement and
Consultant's services hereunder may be terminated for cause by Bancshares
upon written notice to Consultant, and Consultant shall not be entitled to
receive compensation or other benefits for any period after termination for
cause. "For cause" pursuant to this Agreement shall include, but not be
limited to: (i) any act of material dishonesty; (ii) any material breach of
this Agreement or any breach of a fiduciary duty (involving personal profit);
(iii) any habitual neglect of, or habitual negligence in carrying out, those
duties contemplated under this Agreement; (iv) any willful violation of any
law, rule or regulation, which, by virtue of bank or bank holding company
regulatory restrictions imposed as a result thereof, would have a material
adverse effect on the business or financial prospects of Bancshares; (v) any
conviction of any felony or misdemeanor which may be reasonably interpreted
to be harmful to Bancshares' reputation ; (vi) the requirement to comply with
any final cease-and-desist order or written agreement with any applicable
state or federal
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bank regulatory authority which requests or orders Consultant's dismissal or
limits Consultant's employment duties; or (vii) the inducement of any client,
customer, agent or employee to break any contract or terminate the agency or
employment relationship with Bancshares or its affiliates. Termination for
cause by Bancshares shall not constitute a waiver of any remedies which may
otherwise be available to Bancshares under law, equity, or this Agreement.
(b) TERMINATION BY DEATH OR DISABILITY. Bancshares may terminate
this Agreement by written notice to Consultant if, during the term of this
Agreement, Consultant shall become incapable of fulfilling obligations
hereunder because of death, injury or physical or mental illness. Termination
for reason of disability shall be effective immediately as of the date of
said notice.
(c) TERMINATION BY CONSULTANT WITHOUT CAUSE. Consultant may
terminate this Agreement without cause by giving Bancshares ninety (90) days
written notice of said termination.
7. INDEMNIFICATION. To the extent permitted by law and Bancshares'
Certificate of Incorporation and by-laws, Bancshares shall indemnify, defend
and hold Consultant harmless against any and all claims as may be asserted by
any third party against Consultant based on the performance of Consultant's
services under the terms of this Agreement.
8. NON-COMPETITION. Consultant shall not, during the Term, directly
or indirectly, either as an employee, employer, consultant, agent, principal,
partner, shareholder, corporate officer, director, or in any other individual
or representative capacity, engage or participate in any competing bank or
financial institution or financial services business for any bank or
financial institution or financial services business that has an office in
Orange County, California. Consultant hereby acknowledges the particular
value to Bancshares of this Section 8, the loss of which cannot be reasonably
or adequately compensated in an action at law or in arbitration. Therefore,
Consultant expressly agrees that Bancshares, in addition to any and all other
rights or remedies that Bancshares shall possess, shall be entitled to
injunctive and other equitable relief to prevent or remedy a breach of this
Section 8 by Consultant, without the necessity of posting any bond.
Consultant's obligation under this Section 8 shall survive the termination of
this Agreement; provided that in the event of a breach of this Section 8 or
Section 9(d), Bancshares will not have any obligation to continue to pay the
monthly fee under Section 3.
9. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. Except with respect to the Employment
Agreement, this Agreement supersedes any and all other agreements between
Consultant and Bancshares, either oral or in writing, among the parties
hereto with respect to the retention of Consultant by Bancshares and contains
all of the promises and agreements among the Parties with respect to such
retention. Each party acknowledges that no representations, promises or
agreements, oral or otherwise, have been made by any party or anyone acting
on behalf of a party which are not embodied herein, and that no other
agreement, statement, representation or promise with respect to such
retention not contained in this Agreement shall be valid or binding. Any
modification, waiver or amendment of this Agreement will be effective only if
it is in writing and signed by the party to be charged.
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Notwithstanding anything to the contrary set forth elsewhere in this
Agreement, Consultant agrees that (i) this Agreement shall take effect only
in the event of and upon the termination of Consultant's employment with
Bancshares pursuant to the Section 5(a) of the Employment Agreement; and (ii)
the obligation of Bancshares to pay Consulting Fees pursuant to this
Agreement is wholly independent of and shall in no way effect the provisions
set forth in the Employment Agreement.
(b) ARBITRATION. In the event any dispute should arise between
the parties hereto concerning the interpretation of any term of this
Agreement, or the performance of any obligation hereunder, such dispute shall
be resolved exclusively (except as provided by the provisions of this
Paragraph) by referral to arbitration under the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association
(the "AAA"). The arbitration shall be held in Los Angeles, California or at
such other location as the parties agree. In any such dispute, Consultant
shall be obligated to pay to the AAA only his own filing fees. All other AAA
fees, including arbitrators' fees, shall be borne by Bancshares.
Notwithstanding the arbitration provisions hereof, any party hereto shall
have the right to seek injunctive relief from any court of competent
jurisdiction for any breach of this Agreement for which injunctive relief is
an appropriate remedy.
(c) CHOICE OF LAW AND FORUM. This Agreement shall be governed
by and construed in accordance with the laws of the State of California,
except to the extent preempted by the laws of the United States. Any action
or proceeding brought upon, or arising out of, this Agreement or its
termination shall be brought in a forum located within the County of Orange,
State of California, and Consultant hereby agrees to be subject to service of
process in California.
(d) DISCLOSURE OF INFORMATION. Consultant recognizes and
acknowledges that Bancshares possesses trade secrets and other confidential
and/or proprietary information concerning Bancshares' business affairs and
methods of operation which constitutes valuable, confidential, and unique
assets of Bancshares' business ("Proprietary Information"), which Bancshares
has developed through a substantial expenditure of time and money and which
are and will continue to be utilized in Bancshares' business operations and
which are not generally known in the trade. At any time before or after
termination of this Agreement, Consultant agrees not to disclose to anyone
any Proprietary Information for any reason or purpose whatsoever and not to
make use of any Proprietary Information for his own purposes or for the
benefit of anyone other than Bancshares under any circumstances. For purposes
of this paragraph 9(d), Proprietary Information includes, without limitation,
all information regarding services, processes, know-how, service development,
business plans, strategic plans, labor relations, research, finances,
marketing, assessments, costs, benefits, and any other confidential matters
relating to Bancshares. Consultant hereby acknowledges the particular value
to Bancshares of this paragraph 9(d), the loss of which cannot be reasonably
or adequately compensated in an action at law or in arbitration. Therefore,
Consultant expressly agrees that Bancshares, in addition to any other rights
or remedies that Bancshares shall possess, shall be entitled to injunctive
and other equitable relief to prevent or to remedy a breach of this paragraph
9(d) by him, without the necessity of posting any bond.
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(e) SEVERABILITY. In the event that any term or condition
contained in this Agreement shall, for any reason, be held by a court of
competent jurisdiction to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other term or condition of this Agreement, but this Agreement shall be
construed as if such invalid or illegal or unenforceable term or condition
had never been contained herein. It is the intention of the Parties that the
non-competition covenants in Section 8 shall be enforced to the greatest
extent (but to no greater extent) in time, area, and degree of participation
as is permitted by the law of that jurisdiction whose law is found to be
applicable to any act allegedly in breach of the covenants. It being the
purpose of this Agreement to govern competition by Consultant, the covenants
in Section 8 shall be governed by and construed according to that law (from
among those jurisdictions arguably applicable to this Agreement and those in
which a breach of said Section is alleged to have occurred or to be
threatened) which best gives them effect.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
and Non-Competition Agreement as of this 1st day of September, 2000, in the
City of Newport Beach, California.
DATED: September 1, 2000 CONSULTANT:
/s/ Harvey Ferguson
-------------------------------------
HARVEY FERGUSON
DATED: September 1, 2000 CALIFORNIA COMMUNITY BANCSHARES, INC.
/s/ Ronald W. Bachli
By: ---------------------------------
Ronald W. Bachli,
President and Chief Executive
Officer
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