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SPECIAL COMPENSATION AGREEMENT
THIS SPECIAL COMPENSATION AGREEMENT (the "Agreement") is made and
entered into on May 19, 2000, by and among IMPERIAL BANCORP, a registered bank
holding company ("Bancorp"), IMPERIAL BANK, a California banking corporation
("Bank") and GEORGE L. GRAZIADIO, JR., an individual (the "Executive").
(Bancorp and Bank shall be collectively referred to as "the Company").
RECITALS
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A. The Executive is currently employed by Bancorp and Bank.
B. This Agreement sets forth the Special Compensation (as defined in
Section 3 below) which the Company agrees it will pay to the Executive upon a
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Change in Control (as defined in Section 1(b) below).
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C. The board of directors of both Bancorp and Bank, with the Executive
specifically excluded from consideration of the matter, have approved the
execution of this Agreement and the performance of the obligations hereunder.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter contained, and for other good and valuable
consideration, it is hereby agreed among the parties hereto as follows:
1. Definitions
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(a) Average Annual Compensation. The average Compensation (as defined
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in Section 1(d) below) paid by the Company to the Executive during the five (5)
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most recent calendar years ending prior to the Change in Control of the Company.
(b) Change in Control. A Change in Control shall be deemed to have
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occurred contemporaneously with the occurrence of the first of any one of the
following events:
(1) any consolidation or merger of Bank or Bancorp unless its
voting securities outstanding immediately before the merger or consolidation
would continue to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least 50 percent of
the combined voting power of the voting securities of the surviving entity
outstanding immediately after such merger or consolidation;
(2) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of Bank or Bancorp;
(3) the shareholders of Bank or Bancorp approve any plan or
proposal for the liquidation or dissolution of Bank or Bancorp;
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(4) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended, and the regulations
thereunder (collectively, the "Exchange Act")) becomes the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act) of 25% or more of
Bank's or Bancorp's issued and outstanding Common Stock (except as a result of
an agreement to vote securities unless its ultimate purpose is to cause what
would otherwise be Change in Control or to force one or more directors or
members of senior management to be replaced, as reasonably determined by the
Bancorp's board of directors); or
(5) a majority of the members of Bank's or Bancorp's board of
directors is replaced during any two-year period by directors whose appointment
or election is not approved by two-thirds of the members of the board of
directors at the start of such two-year period.
(c) Code. The Internal Revenue Code of 1986, as amended.
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(d) Compensation. The total taxable gross cash compensation payable
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to the Executive by Company, determined before tax withholding, Executive's
contributions to benefit programs (such as Section 401(k) plan, cafeteria plan,
or Executive Deferral Plan contributions), but not including distributions from
any deferred compensation of other benefit plan, any equity compensation (such
as stock option gains), or any taxable noncash benefits.
(e) Date of Termination. The "Date of Termination" of employment
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shall mean:
(1) if this Agreement is terminated by the Company based on the
Executive's Disability, 30 days after Notice of Termination is given to the
Executive; provided, however, that the Executive shall not have returned to the
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performance of the Executive's duties on a full-time basis during such 30-day
period;
(2) if this Agreement is terminated based on the Executive's
Retirement, the date on which the Notice of Termination is given; or
(3) if this Agreement is terminated based on the Executive's
Death, or for Other Reason, the effective date of such termination.
(f) Death. Termination for "Death" shall mean termination of the
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Executive's employment after the Executive has been declared legally dead
pursuant to the applicable laws.
(g) Disability. Termination for "Disability" shall mean termination
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of the Executive's employment because the Executive has been absent from his
duties on a full time basis for six (6) months as a result of the Executive's
incapacity due to physical or mental illness and, within 30 days of Notice of
Termination, the Executive shall not have returned to full-time performance of
the Executive's duties.
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(h) Excise Tax. The tax imposed by Section 4999 of the Code and any
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applicable state excise tax provision.
(i) Notice of Termination. A written notice which (1) indicates the
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specific termination provisions in this Agreement relied upon, (2) sets forth in
reasonable detail the facts and circumstances claimed to provide the basis for
termination of the Executive's employment under the provisions so indicated (and
also provides the resolution specified in Section 1(b) if the termination is for
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Cause), and (3) is delivered to (A) the Executive if the grounds for termination
are Disability (when no legal custodian has been appointed for the Executive),
Retirement or Cause, or (B) the Executive's legal custodian if the grounds for
termination are Disability and a legal custodian has been appointed for the
Executive.
(j) Other Reason. Termination for "Other Reason" shall mean
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termination of the Executive's employment either voluntarily or involuntarily
for any reason other than Death, Disability, Retirement, Cause or Good Reason.
(k) Payment Date. The Date of Termination.
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(l) Retirement. Termination for "Retirement" shall mean termination
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of the Executive's employment by Bank (after Notice of Termination) or
termination by the Executive, based on the Executive having reached age 70 or
such other age as shall have been fixed in any arrangement established with the
Executive's written consent.
(m) Special Compensation. The term "Special Compensation" shall have
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the meaning defined in Section 3 below.
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2. Term of Agreement.
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This Agreement shall terminate upon the earliest of the following
events:
(a) ten years from the date hereof if a Change in Control has
not occurred within such ten year period;
(b) the Date of Termination of the Executive's employment by
Bank based on Death, Disability, Retirement or Other Reason; or
(c) the payment in full of all of the Company's obligations for
Special Compensation as set forth in Section 3 below after a Change in Control.
3. Special Compensation Upon Change in Control.
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(a) Special Compensation. Unless this Agreement has previously
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terminated pursuant to Section 2 above, immediately upon a Change in Control,
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the Company shall pay to the Executive, in addition to any compensation to which
the Executive may otherwise be entitled, an amount equal to the lesser of: (1)
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2.99 times the Average Annual Compensation; or (2) the largest gross Special
Compensation amount which, in the opinion of
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the Company's independent auditors, will maximize the net payment to the
Executive after consideration of all taxes including the Excise Tax. The Special
Compensation shall be paid in a lump sum, in cash, on the Payment Date. All of
the Special Compensation shall be paid by Bancorp and Bank based on the
respective Average Annual Compensation paid by each.
(b) Computation of Excise Tax. For purposes of determining
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whether any of the Special Compensation will be subject to the Excise Tax and
the amount of such Excise Tax:
(1) Any other payments or benefits received or to be
received by the Executive in connection with a Change in Control (whether
pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with the Company, any person or entity whose actions result in a
Change in Control or any person affiliated with the Company or such person)
shall be treated as "parachute payments" within the meaning of Section
280G(b)(2) of the Code and all "excess parachute payments" within the meaning of
Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the
opinion of the Company's independent auditors such other payments or benefits
(in whole or in part) do not constitute parachute payments or such excess
parachute payments (in whole or in part) represent reasonable compensation for
services actually rendered by the Executive within the meaning of Section
280G(b)(4) of the Code (except that, as to amounts that are reasonable
compensation for services rendered before a Change in Control, the base amount
allocated to such amount shall be taken into account to the extent prescribed by
Section 280G of the Code).
(2) The value of any non-cash benefits and any present
value computations shall be determined by the Company's independent auditors in
accordance with the principles of Section 28OG(d)(3) and (4) of the Code.
(3) The determination of the amount of the Excise Tax
pursuant to the foregoing provisions shall be made by the Company's independent
auditors and such determination shall be binding on both the Company and the
Executive. The expense of such determination shall be borne solely by the
Company.
(c) The Company's Withholding Obligation. Bank shall withhold
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the amount of federal and state income tax and, if applicable, the Excise Tax
applicable to the Special Compensation payable to the Executive pursuant to the
provisions of Section 3 hereof, in the amount established by Company's
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independent auditors.
(d) No Other Analogous Benefits Payable. Executive agrees that
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this Agreement sets forth the only arrangement pursuant to which Executive may
receive any severance, similar benefit, or special payment following a Change in
Control while this Agreement is in effect, and Executive waives any entitlement
he may have to any such benefit or any other amount that would be a "parachute
payment" with respect to such a Change in Control.
4. No Obligation to Mitigate Damages.
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(a) Executive shall not be required to mitigate damages for the
amount of any payment provided for under this Agreement by seeking other
employment or otherwise, nor shall the amounts of any payment provided for under
this Agreement be reduced by any compensation earned by the Executive as a
result of employment by another employer after the Date of Termination or
otherwise.
(b) The provisions in this Agreement and any payment provided
for hereunder shall not reduce any amounts otherwise payable, or in any way
diminish the Executive's existing rights, or rights which would accrue solely as
a result of the passage of time under any benefit plan, incentive plan,
securities plan, employment agreement or other contract, plan or arrangement.
5. Successor to the Company.
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(a) The Company will require any successor or assign, whether
direct or indirect, by purchase, merger, consolidation or otherwise, of all or
substantially all of the business and/or assets of Bank or Bancorp to assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform if no such succession or assignment had
taken place. As used in this Agreement, Company shall mean the "Company" and any
successor to its business and/or assets which executes and delivers the
agreement provided in this Section 5 or which otherwise becomes bound by all the
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terms and provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, advisees and legatees. If the
Executive should die while any amounts are still payable hereunder, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's devisee, legatee or other designee
or, if there is none, to the Executive's estate.
6. Arbitration. Any controversy or claim arising out of or relating to
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this Agreement, or the breach thereof, other than matters pertaining to
injunctive relief, including, without limitation, temporary restraining orders,
preliminary injunctions, and permanent injunctions, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the Judicial
Arbitration and Mediation Service (JAMS), and judgment upon the award rendered
by the arbitrator(s) shall be and may be entered in any court having
jurisdiction thereof. The parties hereto hereby agree that the arbitrator(s)
shall have jurisdiction to award punitive damages and the parties shall be
permitted to conduct discovery in accordance with the provisions of Part 3,
Title 9, Paragraphs 1280 et seq. of the California Code of Civil Procedure.
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Such arbitration shall take place in Los Angeles County, California, unless
otherwise agreed to in writing by the parties.
7. Miscellaneous.
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(a) Notice. All notices, requests, demands, and other communications
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provided for hereunder shall be in writing or by e-mail or facsimile
transmission and shall be deemed to have been duly given (1) on the date of
service if delivered in person or by e-mail or facsimile transmission (with the
e-mail or facsimile confirmation of transmission receipt acting as confirmation
of service when sent and provided that e-mailed or facsimile notices are also
mailed by first class, certified or registered mail, postage prepaid); or (2)
seventy-two (72) hours after mailing by first class, registered or certified
mail, postage prepaid, and properly addressed as follows or at such other
address as the party affected may designate in a written notice to such other
party in compliance with this section.
If to the Company: Imperial Bancorp
Attn: Richard Baker
9920 South La Cienega Blvd.
Inglewood, California 90301
Telecopier No.: (310) 417-5695
E-mail: [email protected]
If to the Executive: George L. Graziadio, Jr.
P.O. Box 92991
Los Angeles, CA 90009
Telecopier No.: (310) 417-5999
E-mail: [email protected]
(b) Waiver. No provisions of this Agreement may be modified, waived
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or discharged unless such waiver, modification or discharge is pursuant to a
written agreement signed by the Executive and the Company. No waiver by either
party of any breach of, or compliance with, any condition or provision of this
Agreement to be performed by the other party shall be deemed a waiver of similar
or dissimilar provisions or conditions.
(c) Integration. No agreements or representations, oral or otherwise,
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express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement and the terms
and conditions of all previous agreements between the parties concerning the
subject matter hereof are hereby superseded.
(d) Governing Law. This Agreement shall be governed and construed in
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accordance with the laws of the State of California.
(e) Validity. The invalidity or unenforceability of any provisions of
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this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
(f) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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(g) Legal Fees and Expenses. In the event that any party shall bring
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any arbitration, action to enforce arbitration or any other legal action or
proceeding (collectively "action") arising out of or in connection with the
performance, breach, interpretation, validity or enforceability of this
Agreement, then the prevailing party in such action (as determined by the court,
arbitrator(s) or other body having jurisdiction) shall be entitled to recover
from the losing party, all reasonable costs and expenses of the action,
including the fees of all arbitrators if the action has been arbitrated,
reasonable attorneys' fees, court costs, costs of investigation and other costs
reasonably related to such action, in such amounts as may be determined in the
discretion of the court, arbitrator(s) or other body having jurisdiction.
(h) Confidentiality. The Executive shall retain in confidence any and
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all confidential information known to the Executive concerning the Company and
its business so long as such information is not otherwise properly disclosed.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"EXECUTIVE" "BANCORP"
IMPERIAL BANCORP, a registered
bank holding company
____________________________ By: ___________________________
George L. Graziadio, Jr. Richard M. Baker
Senior Vice President
"BANK"
IMPERIAL BANK, a California
banking corporation
By: ___________________________
Daniel Mathis
President and Chief Operating Officer
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