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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q/A-1
AMENDMENT No. 1 To
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1996
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[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to .
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COMMISSION FILE NUMBER 33-82150
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REGENCY BANCORP
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(Exact name of registrant as specified in its charter)
CALIFORNIA 77-0378956
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(State or other jurisdiction of (I.R.S. Employer
Incorporation or organizations) Identification No.)
7060 N. FRESNO STREET, FRESNO, CALIFORNIA 93720
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(Address of principal executive offices) (Zip code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (209) 438-2600.
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None
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(Former name, former address and fiscal year, if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for the shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No .
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As of November 14, 1996, the registrant had 1,818,160 shares of Common Stock
outstanding.
Page 1 of 51 pages
The Exhibit Index is located on page 5.
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PART II OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None
ITEM 2. CHANGES IN SECURITIES
None
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTER TO VOTE OF SECURITY HOLDERS
None
ITEM 5. OTHER INFORMATION
None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
(3.1) Articles of Incorporation, as amended, dated September 9, 1994,
incorporated by reference from exhibit 3.1 of registrant's Annual
Report on Form 10-K for the year ended December 31, 1994, filed
with the Commission on February 27, 1995.
(3.2) Bylaws, as amended, incorporated by reference from exhibit 3.2 of
registrant's Annual Report on Form 10-K for the year ended
December 31, 1994, filed with the Commission on February 27,
1995.
*(10.1) Amendment to the Project Management Agreement, dated August 21,
1996, by and between Regency Service Corporation, a California
Corporation, and Gary L. McDonald Real Estate and Development
Co., a California Corporation, for project managerial services
related to real estate development activities conducted by RSC.
*(10.2) Employment Agreement made and entered into as of August 22, 1996
between Regency Bank, a California Corporation, and Steven F.
Hertel, President/Chief Executive Officer.
*(10.3) Employment Agreement made and entered into as of August 22, 1996
between Regency Bank, a California Corporation, and Steven R.
Canfield, Executive Vice President/Chief Financial Officer.
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*(10.4) Employment Agreement made and entered into as of August 22, 1996
between Regency Bank, a California Corporation, and Robert J.
Longatti, Executive Vice President/Chief Credit Officer.
*(10.5) Employment Agreement made and entered into as of August 22, 1996
between Regency Investment Advisors Incorporated, a California
Corporation, and Alan R. Graas, President.
(27.1) Financial Data Schedule
* Denotes management contracts, compensatory plans or arrangements.
(b) Reports on Form 8-K
The Company filed a Form 8-K dated July 26, 1996 in which it
reported the Company had declared a $.06 per share cash dividend
payable to shareholders of record on July 29, 1996.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
REGENCY BANCORP
Date: November 19, 1996 By: /s/ Steven F. Hertel
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Steven F. Hertel
President and Chief Executive Officer
(Principal Executive Officer)
Date: November 19, 1996 By: /s/ Steven R. Canfield
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Steven R. Canfield
Executive Vice President and
Chief Financial Officer (Principal
Financial and Accounting Officer)
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EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NUMBER
*10.1 Amendment to the Project Management 6
Agreement, dated August 21, 1996, by and
between Regency Service Corporation, a
California Corporation, and Gary L. McDonald
Real Estate and Development Co., a California
Corporation, for project managerial services
related to real estate development activities
conducted by RSC.
*10.2 Employment Agreement made and entered into as 7-17
of August 22, 1996, by and between Regency
Bank, a California Corporation and Steven F.
Hertel, President/Chief Executive Officer.
*10.3 Employment Agreement made and entered into as 18-28
of August 22, 1996, by and between Regency
Bank, a California Corporation and Steven R.
Canfield, Executive Vice President/Chief
Financial Officer.
*10.4 Employment Agreement made and entered into as 29-39
of August 22, 1996, by and between Regency
Bank, a California Corporation and Robert J.
Longatti, Executive Vice President/Chief
Credit Officer.
*10.5 Employment Agreement made and entered into as 40-50
of August 22, 1996, by and between Regency
Investment Advisors Incorporated, a
California corporation and Alan R. Graas,
President.
27.1 Financial Data Schedule 51
* Denotes management contracts, compensatory plans or arrangements.
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AMENDMENT TO PROJECT MANAGER AGREEMENT
DATED: AUGUST 21, 1996
PARTIES: GARY L. MCDONALD REAL ESTATE AND DEVELOPMENT CO. (PROJECT MANAGER)
REGENCY SERVICE CORPORATION (RSC)
AGREEMENT
Exhibit C of the Agreement shall be amended as follows:
In the event that total commissions paid to all parties exceed 6% of the total
sales price, net of incentives, the Project Manager's 3% commission will be
reduced to an amount so that total commissions paid to all parties do not exceed
6% of the total sales price, net of incentives. Said reduction shall in no way
cause the Project Manager's commission to go negative.
By: /s/ Steven F. Hertel
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Regency Service Corporation, a California Corporation
By: /s/ Gary L. McDonald
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Gary L. McDonald Real Estate and Development Co., Inc., a California Corporation
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of August ___, 1996 by and
between REGENCY BANK, a California banking corporation ("Employer"), and Steven
F. Hertel ("Employee").
RECITALS
WHEREAS, Employer and Employee desire to enter into an agreement for the
purposes of engaging the services of Employee by reason of his experience,
training and ability in the commercial banking industry;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Employer and Employee agree as follows:
AGREEMENT
I. TERM OF EMPLOYMENT. Employer employs Employee and Employee hereby
accepts employment with Employer, upon the terms and conditions hereinafter set
forth, for a period of three (3) years from the date hereof. Upon the
occurrence of the third annual anniversary date of this Agreement, the term of
this Agreement shall be automatically extended for an additional three (3) year
term, and on each anniversary date thereafter, the term of this Agreement shall
be deemed automatically extended for an additional one (1) year term, subject to
the termination provisions of paragraph 16.
II. DUTIES AND OBLIGATIONS OF EMPLOYEE. Employee shall serve as the
President and Chief Executive Officer of Employer and its parent holding company
and shall perform the customary duties of such offices in the commercial banking
industry as may from time to time be reasonably requested of him by the Boards
of Directors of Employer and its parent holding company in addition to the
following:
A. Acting as a member of the Boards of Directors of Employer, its
parent holding company and their respective subsidiaries and all other board
committees to which Employee may be appointed or elected;
B. Participating in community affairs which are beneficial to the
Employer, its parent holding company and their respective subsidiaries;
C. Maintaining a good relationship with the Boards of Directors of
Employer, its parent holding company and their respective subsidiaries and the
shareholders of Employer's parent holding company;
D. Maintaining a good relationship with regulatory agencies and
governmental authorities having jurisdiction over Employer, its parent holding
company or their respective subsidiaries;
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E. Providing leadership in planning and implementing the conduct of
business and the affairs of the Employer, its parent holding company and their
respective subsidiaries; and
F. Hiring and firing of all employees employed by Employer, its
parent holding company and their respective subsidiaries, subject at all times
to the policies and directives set by the Employer's Board of Directors.
III. DEVOTION TO EMPLOYER'S BUSINESS.
A. Employee shall devote his full business time, ability, and
attention to the business of Employer, its parent holding company and their
respective subsidiaries during the term of this Agreement and shall not during
the term of this Agreement, without the prior written consent of Employer's
Board of Directors, engage in any other business activities, duties, or pursuits
whatsoever, or directly or indirectly render any services of a business,
commercial, or professional nature to any other person or organization, whether
for compensation or otherwise, which are in conflict with the business of
Employer, its parent holding company and their respective subsidiaries.
However, the expenditure of reasonable amounts of time for educational,
charitable, or professional activities shall not be deemed a breach of this
Agreement if those activities do not materially interfere with the services
required of Employee under this Agreement. Nothing in this Agreement shall be
interpreted to prohibit Employee from making passive personal investments.
However, Employee shall not directly or indirectly acquire, hold, or retain any
material interest in any business competing with or similar in nature to the
business of Employer, its parent holding company or their respective
subsidiaries.
B. Employee agrees to conduct himself at all times with due regard
to public conventions and morals. Employee further agrees not to do or commit
any act that will reasonably tend to shock or offend the community, or to
prejudice Employer or the banking industry in general.
C. Employee hereby represents and agrees that the services to be
performed under the terms of this Agreement are of a special, unique, unusual,
extraordinary, and intellectual character that gives them a peculiar value, the
loss of which cannot be reasonably or adequately compensated in damages in an
action at law. Employee therefore expressly agrees that Employer, in addition
to any other rights or remedies that Employer may possess, shall be entitled to
injunctive and other equitable relief to prevent or remedy a breach of this
Agreement by Employee.
IV. NONCOMPETITION BY EMPLOYEE. Employee shall not, during the term of
this Agreement, directly or indirectly, either as an employee, employer,
consultant, agent, principal, stockholder, officer, director, or in any other
individual or representative capacity, engage or participate in any competitive
banking or financial services business.
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V. INDEMNIFICATION FOR NEGLIGENCE OR MISCONDUCT. Employee shall
indemnify and hold Employer harmless from all liability for loss, damage, or
injury to persons or property resulting from the gross negligence or intentional
misconduct of the Employee.
VI. DISCLOSURE OF INFORMATION. Employee shall not, either before or after
termination of this Agreement, disclose to anyone any information relating to
Employer, its parent holding company or their respective subsidiaries or any
financial information, trade or business secrets, customer lists, computer
software or other information not otherwise publicly available concerning the
business or operations of Employer, its parent holding company or their
respective subsidiaries. Employee recognizes and acknowledges that any
financial information concerning any of the customers of Employer, its parent
holding company or their respective subsidiaries, as it may exist from time to
time, is strictly confidential and is a valuable, special and unique business
asset. Employee shall not, either before or after termination of this
Agreement, disclose to anyone said financial information or any part thereof,
for any reason or purpose whatsoever. This paragraph 6 shall survive the
expiration or termination of this Agreement.
VII. WRITTEN OR PRINTED MATERIAL. All written or printed materials,
notebooks and records used by Employee in performing duties for Employer, its
parent holding company or their respective subsidiaries, other than Employee's
personal notes and diaries, are and shall remain the sole property of Employer.
Upon termination of employment, Employee shall promptly return all such material
(including all copies) to Employer. This paragraph 7 shall survive expiration
or termination of this Agreement.
VIII. SURETY BOND. Employee agrees that he will furnish all information
and take any other steps necessary from time to time to enable Employer to
obtain or maintain a fidelity bond conditional on the rendering of a true
account by Employee of all monies, goods, or other property which may come into
the custody, charge, or possession of Employee during the term of his
employment. The surety company issuing the bond and the amount of the bond must
be acceptable to Employer. All premiums on the bond shall be paid by Employer.
If Employee cannot qualify for a surety bond at any time during the term of this
Agreement, Employer shall have the option to terminate this Agreement
immediately without any obligation to pay severance benefits to Employee in
accordance with paragraph 16 (d) of this Agreement.
IX. BASE SALARY. In consideration for the services to be performed
hereunder, Employee shall receive a salary at the rate of One Hundred Fifty-Five
Thousand Five Hundred Dollars ($155,500.00) per annum, payable in installments
during the term of this Agreement of approximately Six Thousand Four Hundred
Seventy-Nine Dollars and Seventeen Cents ($6,479.17) on the fifteenth and last
day of each month, subject to applicable adjustments for withholding taxes and
prorations for any partial employment period. Employee shall receive such
annual adjustments in salary, if any, as may be determined by Employer's Board
of Directors, in its sole discretion, resulting from the Board of Directors
annual review of Employee's compensation in the first quarter of each year
during the term of this Agreement.
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X. SALARY CONTINUATION DURING DISABILITY. If Employee for any reason
(except as expressly provided below) becomes temporarily or permanently disabled
so that he is unable to perform the duties under this Agreement, Employer agrees
to pay Employee the base salary otherwise payable to Employee pursuant to
paragraph 9 of this Agreement, reduced by the amounts received by Employee from
state disability insurance, or worker's compensation or other similar insurance
benefits through policies provided by Employer, for a period of six (6) months
from the date of disability.
For purposes of this paragraph 10, "disability" shall be defined as
provided in the disability insurance program maintained by Employer for the
benefit of Employee and in effect at the date of such disability.
Notwithstanding anything herein to the contrary, Employer shall have no
obligation to make payments for a disability resulting from the deliberate,
intentional actions of Employee, such as, but not limited to, attempted suicide
or chemical dependence of Employee.
XI. INCENTIVE COMPENSATION. Employee shall be entitled to receive bonus
or incentive compensation subject to the right of the Board of Directors, in its
sole discretion, to determine the amount of compensation available for bonus or
incentive payments to Employee each year during the term of this Agreement in
connection with its review of Employee's performance and Employer's results of
operations.
XII. STOCK OPTIONS. Employer has previously granted stock options to
Employee. Employer's parent holding company may, but is not obligated to, grant
additional stock options to Employee in the future which grants, if any, shall
be within the sole discretion of the Board of Directors of Employer's parent
holding company and subject to the terms and provisions of Employer's stock
option plan pursuant to which such grants are effected. Any such grants shall
be evidenced by a stock option agreement entered into between Employer's parent
holding company and Employee pursuant to such stock option plan and a copy of
each such stock option agreement shall be attached to this Agreement as an
exhibit. Notwithstanding any provision of any such stock option plan or any
such stock option agreement to the contrary, no rights of employment shall be
conferred upon Employee or result from any such stock option plan or any stock
option agreement entered into between Employer or its parent holding company and
Employee. Any employment rights and corresponding duties of Employee pursuant
to his employment by Employer shall be limited to and interpreted solely in
accordance with the terms and provisions of this Agreement.
XIII. OTHER BENEFITS. Employee shall be entitled to those employee
benefits adopted by Employer for all employees of Employer, subject to
applicable qualification requirements and regulatory approval requirements, if
any. Employee shall be further entitled to the following additional benefits
which shall supplement or replace, to the extent duplicative of any part or all
of the general employee benefits, the benefits otherwise provided to Employee:
A. VACATION. Employee shall be entitled to four (4) weeks annual
vacation leave at his then existing rate of base salary each year during the
term of this Agreement. Employee may be absent from his employment for vacation
as long as such leave is reasonable and does not jeopardize his responsibilities
and duties specified in this Agreement. The length
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of vacation should not exceed two (2) weeks without the approval of Employer's
Board of Directors. Accrual of vacation time, if any, shall be determined in
accordance with Employer's personnel policies.
B. AUTOMOBILE ALLOWANCE AND INSURANCE. Employer shall pay to
Employee an automobile allowance of Twelve Thousand Dollars ($12,000.00) per
year during the term of this Agreement, payable at the rate of One Thousand
Dollars ($1,000.00) per month. Employee shall acquire or otherwise make
available for his business and personal use an automobile, suitable to his
position, and (i) maintain it in good condition and repair; (ii) maintain public
liability insurance and property damage insurance policies with insurer(s)
acceptable to Employer and such coverages in such amounts as may be acceptable
to Employer from time to time; and (iii) such policies shall name Employer as an
additional insured, subject to the requirement that Employee's allowance
described above shall be increased in an amount equal to the additional premium
expense, if any, resulting from Employer being named as an additional insured.
Employer may, in its sole discretion, elect to provide and pay for such
insurance policies in lieu of Employee maintaining such policies.
C. PERSONAL INSURANCE. Employer shall provide during the term of
this Agreement at Employer's sole cost, a policy or policies of term life
insurance coverage in the amount of Two Hundred Fifty Thousand Dollars
($250,000.00) and group life, health (including medical, dental and
hospitalization), accident and disability insurance coverage for Employee and
his dependents either through a policy or policies of standard coverage provided
by an insurer or insurers selected by Employer in its sole discretion.
XIV. ANNUAL PHYSICAL EXAMINATION. Employer shall pay or reimburse
Employee for the cost of an annual physical examination conducted by a
California licensed physician selected by Employee and reasonably acceptable to
Employer.
XV. BUSINESS EXPENSES. Employee shall be reimbursed for all ordinary and
necessary expenses incurred by Employee in connection with his employment.
Employee shall also be reimbursed for reasonable expenses incurred in activities
associated with promoting the business of Employer, including expenses for
entertainment, travel, conventions, educational programs, club memberships and
similar items. Employer will pay for or will reimburse Employee for such
expenses upon presentation by Employee from time to time of receipts or other
appropriate evidence of such expenditures.
XVI. TERMINATION OF AGREEMENT.
A. AUTOMATIC TERMINATION. This Agreement shall terminate
automatically without further act of the parties and immediately upon the
occurrence of any one of the following events, subject to either party's right,
without any obligation whatsoever, to waive an event reasonably susceptible of
waiver, and the obligation of Employer to pay the amounts which would otherwise
be payable to Employee under this Agreement through the end of the month in
which the event occurs, except that only in the event of termination based upon
subparagraphs (1), (4) or (12, to the extent of Employer's breach) below shall
Employee be
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entitled to receive severance payments based upon automatic termination pursuant
to paragraph 16 (d) of this Agreement:
1. The occurrence of circumstances that make it impossible or
impractical for Employer to conduct or continue its
business.
2. The death of Employee.
3. The loss by Employee of legal capacity.
4. The loss by Employer of legal capacity to contract.
5. The willful, intentional and material breach of duty by
Employee in the course of his employment.
6. The habitual and continued neglect by Employee of his
employment duties and obligations under this Agreement.
7. The continuous mental or physical incapacity of Employee,
subject to Employee's rights under paragraph 10 of this
Agreement.
8. Employee's willful and intentional violation of any State of
California or federal banking laws, or of the Bylaws, rules,
policies or resolutions of Employer or its parent holding
company, or of the rules or regulations of the California
Superintendent of Banks or the Federal Deposit Insurance
Corporation, or other regulatory agency or governmental
authority having jurisdiction over Employer, its parent
holding company or their respective subsidiaries.
9. The determination by a state or federal banking agency or
governmental authority having jurisdiction over Employer,
its parent holding company or their respective subsidiaries
that Employee is not suitable to act in the capacity for
which he is employed by Employer.
10. Employee is convicted of any felony or a crime involving
moral turpitude or commits a fraudulent or dishonest act.
11. Employee discloses without authority any secret or
confidential information concerning Employer, its parent
holding company or their respective subsidiaries or takes
any action which Employer's Board of Directors determines,
in its sole discretion and subject to good faith, fair
dealing and reasonableness, constitutes unfair competition
with or induces any customer to
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breach any contract with Employer, its parent holding
company or their respective subsidiaries.
12. Either party breaches the terms or provisions of this
Agreement.
B. TERMINATION BY EMPLOYER. Employer may, at its election and in
its sole discretion, terminate this Agreement for any reason, or for no reason,
by giving not less than thirty (30) days' prior written notice of termination to
Employee, without prejudice to any other remedy to which Employer may be
entitled either at law, in equity or under this Agreement. Upon such
termination, Employee shall be entitled to receive any employment benefits which
shall have accrued prior to such termination and the severance pay specified in
paragraph 16 (d) below.
C. TERMINATION BY EMPLOYEE. This Agreement may be terminated by
Employee for any reason, or no reason, by giving not less than thirty (30) days'
prior written notice of termination to Employer. Upon such termination, all
rights and obligations accruing to Employee under this Agreement shall cease,
except that such termination shall not prejudice Employee's rights regarding
employment benefits which shall have accrued prior to such termination and any
other remedy which Employee may have at law, in equity or under this Agreement,
which remedy accrued prior to such termination.
D. SEVERANCE PAY - TERMINATION BY EMPLOYER. In the event of
termination by Employer pursuant to paragraph 16 (b) or automatic termination
based upon paragraph 16 (a) (1), (4) or (12, to the extent of Employer's breach)
of this Agreement, Employee shall be entitled to receive severance pay equal to
one (1) times Employee's aggregate annual compensation during the year the
termination occurs (including salary and any bonus, incentive or other payments
due Employee including, without limitation, director fees, auto allowance and
premiums for insurance), payable in twenty-four (24) substantially equal
installments on the fifteenth and last day of each month following such
termination. Notwithstanding the foregoing, in the event of a "change in
control" as defined in subparagraph (e) below, Employee shall not be entitled to
severance pay pursuant to this subparagraph (d) and any rights of Employee to
severance pay shall be limited to such rights as are specified in subparagraph
(e) below. Employee acknowledges and agrees that severance pay pursuant to this
subparagraph (d) is in lieu of all damages, payments and liabilities on account
of the early termination of this Agreement and the sole and exclusive remedy for
Employee terminated at the will of Employer pursuant to paragraph 16(b) or
pursuant to certain provisions of paragraph 16 (a) described herein.
E. SEVERANCE PAY - CHANGE IN CONTROL. In the event of a "change in
control" as defined herein, Employee shall be entitled to receive severance pay
in addition to any bonus or incentive compensation payments due Employee. Any
such severance pay due Employee shall be in an amount equal to two (2) times
Employee's average annual compensation for the five (5) years immediately
preceding the change in control. Employee's average annual compensation shall
be the average of the aggregate compensation paid by Employer to Employee
(including amounts deferred during the year at the election of the
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Employee) for each of the five (5) tax years ending immediately prior to the
change in control divided by the number five (5).
If all or any portion of the amounts payable to Employee pursuant to this
paragraph 16 (e) alone or together with other payments which Employee has the
right to receive from Employer, constitute "excess parachute payments" within
the meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), that are subject to the excise tax imposed by Section 4999 of the
Code (or similar tax and/or assessment), such amounts payable hereunder shall be
reduced to the extent necessary, after first applying any similar reduction in
payments to be received from any other plan or program sponsored by Employer
from which Employee has a right to receive payments subject to Sections 280G and
4999 of the Code, including without limitation any Salary Continuation Agreement
made between Employer and Employee, so as to cause a reduction of any excise tax
pursuant to Section 4999 of the Code to equal "zero".
Any such severance shall be payable in forty-eight (48) substantially equal
installments on the fifteenth and last day of each month following such
termination. Such severance payment, if any, shall be in lieu of all damages,
payments and liabilities on account of the events described above for which such
severance payment, if any, may be due Employee and any severance payment rights
of Employee under paragraph 16 (d) of this Agreement. This subparagraph (e)
shall be binding upon and inure to the benefit of the parties and any successors
or assigns or employer or any "person" as defined herein.
Notwithstanding the foregoing, Employee shall not be entitled to receive
nor shall Employer, its successors, assigns or any "person" as defined herein be
obligated to pay severance payments pursuant to this subparagraph (e) in the
event of an occurrence described in paragraph 16, subparagraphs (5), (6), (8),
(10), (11) or (12, to the extent of an Employee breach), or in the event of a
determination pursuant to subparagraph (9) thereof, or in the event Employee
terminates employment in accordance with paragraph 16 (c) and the termination is
not a result of or based upon the occurrence of any event described in paragraph
16 (e).
A "change in control" of Employer for purposes of this Agreement and
subparagraph (e) shall mean the occurrence of any of the following events with
respect to Employer (with the term "Employer" being defined for such a change in
control to include Employer's parent holding company), but specifically
excluding from a "change in control" any of the following events in which an
employee stock ownership plan sponsored by Employer or its parent holding
company is involved as a party or participant in acquiring "control" or in a
transaction or series of transactions resulting in such a "change in control":
(i) a change in control of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or in response
to any other form or report to the regulatory agencies or governmental
authorities having jurisdiction over Employer or any stock exchange on which
Employer's shares are listed which requires the reporting of a change in
control; (ii) any merger, consolidation or reorganization of Employer in which
Employer does not survive; (iii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction
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or a series of transactions) of any assets of Employer having an aggregate fair
market value of fifty percent (50%) of the total value of the assets of
Employer, reflected in the most recent balance sheet of Employer; (iv) a
transaction whereby any "person" (as such term is used in the Exchange Act or
any individual, corporation, partnership, trust or any other entity) is or
becomes the beneficial owner, directly or indirectly, of securities of Employer
representing 25% or more of the combined voting power of Employer's then
outstanding securities; (v) if in any one year period, individuals who at the
beginning of such period constitute the Board of Directors of Employer cease for
any reason to constitute at least a majority thereof, unless the election, or
the nomination for election by Employer's shareholders, of each new director is
approved by a vote of a least three-quarters of the directors then still in
office who were directors at the beginning of the period; (iv) a majority of the
members of the Board of Directors of Employer in office prior to the happening
of any event determines in its sole discretion that as a result of such event
there has been a change in control.
XVII. NOTICES. Any notices to be given hereunder by either party to the
other shall be in writing and may be transmitted by personal delivery or by U.S.
mail, registered or certified, postage prepaid with return receipt requested.
Mailed notices shall be addressed to the parties at the addresses listed as
follows:
Employer: Principal place of business
Employee: Principal place of business as shown in Employer's Personnel
Records and Employee's personal file.
Each party may change the address for receipt of notices by written notice in
accordance with this paragraph 17. Notices delivered personally shall be deemed
communicated as of the date of actual receipt; mailed notices shall be deemed
communicated as of three (3) days after the date of mailing.
XVIII. ARBITRATION. All claims, disputes and other matters in question
arising out of or relating to this Agreement or the breach or interpretation
thereof, other than those matters which are to be determined by the Employer in
its sole and absolute discretion, shall be resolved by binding arbitration
before a representative member, selected by the mutual agreement of the parties,
of the Judicial Arbitration and Mediation Services, Inc. ("JAMS"), presently
located at 111 Pine Street, Suite 710, in San Francisco, California, in
accordance with the rules and procedures of JAMS then in effect. In the event
JAMS is unable or unwilling to conduct such arbitration, or has discontinued its
business, the parties agree that a representative member, selected by the mutual
agreement of the parties, of the American Arbitration Association ("AAA"),
presently located at 417 Montgomery Street, in San Francisco, California, shall
conduct such binding arbitration in accordance with the rules and procedures of
the AAA then in effect. Notice of the demand for arbitration shall be filed in
writing with the other party to this Agreement and with JAMS (or AAA, if
necessary). In no event shall the demand for arbitration be made after the date
when institution of legal or equitable proceedings based on such claim, dispute
or other matter in question would be barred by the applicable statute of
limitations. Any award rendered by JAMS or AAA shall be final and binding upon
the parties, and as applicable, their respective heirs, beneficiaries, legal
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representatives, agents, successors and assigns, and may be entered in any court
having jurisdiction thereof. The obligation of the parties to arbitrate
pursuant to this clause shall be specifically enforceable in accordance with,
and shall be conducted consistently with, the provisions of Title 9 of Part 3 of
the California Code of Civil Procedure. Any arbitration hereunder shall be
conducted in Fresno, California, unless otherwise agreed to by the parties.
XIX. ATTORNEYS' FEES AND COSTS. In the event of litigation, arbitration or
any other action or proceeding between the parties to interpret or enforce this
Agreement or any part thereof or otherwise arising out of or relating to this
Agreement, the prevailing party shall be entitled to recover its costs related
to any such action or proceeding and its reasonable fees of attorneys,
accountants and expert witnesses incurred by such party in connection with any
such action or proceeding. The prevailing party shall be deemed to be the party
which obtains substantially the relief sought by final resolution, compromise or
settlement, or as may otherwise be determined by order of a court of competent
jurisdiction in the event of litigation, an award or decision of one or more
arbitrators in the event of arbitration, or a decision of a comparable official
in the event of any other action or proceeding. Every obligation to indemnify
under this Agreement includes the obligation to pay reasonable fees of
attorneys, accountants and expert witnesses incurred by the indemnified party in
connection with matters subject to indemnification.
XX. ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with respect to the
employment of Employee by Employer and contains all of the covenants and
agreements between the parties with respect to the employment of Employee by
Employer. Each party to this Agreement acknowledges that no other
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
set forth herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding on either party.
XXI. MODIFICATIONS. Any modification of this Agreement will be effective
only if it is in writing and signed by a party or its authorized representative.
XXII. WAIVER. The failure of either party to insist on strict compliance
with any of the terms, provisions, covenants, or conditions of this Agreement by
the other party shall not be deemed a waiver of any term, provision, covenant,
or condition, individually or in the aggregate, unless such waiver is in
writing, nor shall any waiver or relinquishment of any right or power at any one
time or times be deemed a waiver or relinquishment of that right or power for
all or any other times.
XXIII. PARTIAL INVALIDITY. If any provision in this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force and effect
without being impaired or invalidated in any way.
XXIV. INTERPRETATION. This Agreement shall be construed without regard to
the party responsible for the preparation of the Agreement and shall be deemed
to have been prepared jointly by the parties. Any ambiguity or uncertainty
existing in this Agreement shall not be
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interpreted against either party, but according to the application of other
rules of contract interpretation, if an ambiguity or uncertainty exists.
XXV. GOVERNING LAW AND VENUE. The laws of the State of California, other
than those laws denominated choice of law rules, shall govern the validity,
construction and effect of this Agreement. Any action which in any way involves
the rights, duties and obligations of the parties hereunder shall be brought in
the courts of the State of California and venue for any action or proceeding
shall be in Fresno County or in the United States District Court for the Eastern
District of California, and the parties hereby submit to the personal
jurisdiction of said courts.
XXVI. PAYMENTS DUE DECEASED EMPLOYEE. If Employee dies prior to the
expiration of the term of his employment, any payments that may be due Employee
from Employer under this Agreement as of the date of death shall be paid to
Employee's executors, administrators, heirs, personal representatives,
successors, or assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement consisting of
eleven pages in the City of Fresno, County of Fresno, State of California as of
the date set forth above.
EMPLOYER: EMPLOYEE:
REGENCY BANK
By:_____________________ __________________________
Gary McDonald Steven F. Hertel
Chairman of the Board
[ADD NOTARIAL ACKNOWLEDGEMENT]
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of August ___, 1996 by and
between REGENCY BANK, a California banking corporation ("Employer"), and Steven
R. Canfield ("Employee").
RECITALS
WHEREAS, Employer and Employee desire to enter into an agreement for the
purposes of engaging the services of Employee by reason of his experience,
training and ability in the commercial banking industry;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Employer and Employee agree as follows:
AGREEMENT
I. TERM OF EMPLOYMENT. Employer employs Employee and Employee hereby
accepts employment with Employer, upon the terms and conditions hereinafter set
forth, for a period of three (3) years from the date hereof, and on each
anniversary date thereafter, the term of this Agreement shall be deemed
automatically extended for an additional one (1) year term, subject to the
termination provisions of paragraph 16.
II. DUTIES AND OBLIGATIONS OF EMPLOYEE. Employee shall serve as the
Executive Vice President and Chief Financial Officer of Employer and its parent
holding company and shall perform the customary duties of such offices in the
commercial banking industry as may from time to time be reasonably requested of
him by the Boards of Directors and President and Chief Executive Officer of
Employer and its parent holding company in addition to the following:
A. Participating in community affairs which are beneficial to the
Employer, its parent holding company and their respective subsidiaries;
B. Maintaining a good relationship with the Boards of Directors of
Employer, its parent holding company and their respective subsidiaries, and the
shareholders of Employer's parent holding company; and
C. Maintaining a good relationship with regulatory agencies and
governmental authorities having jurisdiction over Employer, its parent holding
company or their respective subsidiaries.
III. DEVOTION TO EMPLOYER'S BUSINESS.
A. Employee shall devote his full business time, ability, and
attention to the business of Employer during the term of this Agreement and
shall not during the term of this Agreement, without the prior written consent
of Employer's Board of Directors, engage in any other business activities,
duties, or pursuits whatsoever, or directly or indirectly render
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any services of a business, commercial, or professional nature to any other
person or organization, whether for compensation or otherwise, which are in
conflict with the business of Employer, its parent holding company or their
respective subsidiaries. However, the expenditure of reasonable amounts of time
for educational, charitable, or professional activities shall not be deemed a
breach of this Agreement if those activities do not materially interfere with
the services required of Employee under this Agreement. Nothing in this
Agreement shall be interpreted to prohibit Employee from making passive personal
investments. However, Employee shall not directly or indirectly acquire, hold,
or retain any material interest in any business competing with or similar in
nature to the business of Employer, its parent holding company or their
respective subsidiaries.
B. Employee agrees to conduct himself at all times with due regard
to public conventions and morals. Employee further agrees not to do or commit
any act that will reasonably tend to shock or offend the community, or to
prejudice Employer or the banking industry in general.
C. Employee hereby represents and agrees that the services to be
performed under the terms of this Agreement are of a special, unique, unusual,
extraordinary, and intellectual character that gives them a peculiar value, the
loss of which cannot be reasonably or adequately compensated in damages in an
action at law. Employee therefore expressly agrees that Employer, in addition
to any other rights or remedies that Employer may possess, shall be entitled to
injunctive and other equitable relief to prevent or remedy a breach of this
Agreement by Employee.
IV. NONCOMPETITION BY EMPLOYEE. Employee shall not, during the term of
this Agreement, directly or indirectly, either as an employee, employer,
consultant, agent, principal, stockholder, officer, director, or in any other
individual or representative capacity, engage or participate in any competitive
banking or financial services business.
V. INDEMNIFICATION FOR NEGLIGENCE OR MISCONDUCT. Employee shall
indemnify and hold Employer harmless from all liability for loss, damage, or
injury to persons or property resulting from the gross negligence or intentional
misconduct of the Employee.
VI. DISCLOSURE OF INFORMATION. Employee shall not, either before or after
termination of this Agreement, disclose to anyone any information relating to
Employer, its parent holding company or their respective subsidiaries or any
financial information, trade or business secrets, customer lists, computer
software or other information not otherwise publicly available concerning the
business or operations of Employer, its parent holding company or their
respective subsidiaries. Employee recognizes and acknowledges that any
financial information concerning any of the customers of Employer, its parent
holding company or their respective subsidiaries, as it may exist from time to
time, is strictly confidential and is a valuable, special and unique business
asset. Employee shall not, either before or after termination of this
Agreement, disclose to anyone said financial information or any part thereof,
for any reason or purpose whatsoever. This paragraph 6 shall survive the
expiration or termination of this Agreement.
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VII. WRITTEN OR PRINTED MATERIAL. All written or printed materials,
notebooks and records used by Employee in performing duties for Employer, its
parent holding company and their respective subsidiaries, other than Employee's
personal notes and diaries, are and shall remain the sole property of Employer.
Upon termination of employment, Employee shall promptly return all such material
(including all copies) to Employer. This paragraph 7 shall survive expiration
or termination of this Agreement.
VIII. SURETY BOND. Employee agrees that he will furnish all
information and take any other steps necessary from time to time to enable
Employer to obtain or maintain a fidelity bond conditional on the rendering of a
true account by Employee of all monies, goods, or other property which may come
into the custody, charge, or possession of Employee during the term of his
employment. The surety company issuing the bond and the amount of the bond must
be acceptable to Employer. All premiums on the bond shall be paid by Employer.
If Employee cannot qualify for a surety bond at any time during the term of this
Agreement, Employer shall have the option to terminate this Agreement
immediately without any obligation to pay severance benefits to Employee in
accordance with paragraph 16 (d) of this Agreement.
IX. BASE SALARY. In consideration for the services to be performed
hereunder, Employee shall receive a salary at the rate of Eighty-Three Thousand
Two Hundred Fifty Dollars ($85,500.00) per annum, payable in installments during
the term of this Agreement of approximately Three Thousand Five Hundred
Sixty-Two Dollars and Fifty Cents ($3,562.50) on the fifteenth and last day of
each month, subject to applicable adjustments for withholding taxes and
prorations for any partial employment period. Employee shall receive such
annual adjustments in salary, if any, as may be determined in the sole
discretion of Employer's Board of Directors or Chief Executive Officer resulting
from the annual review of Employee's compensation in the first quarter of each
year during the term of this Agreement.
X. SALARY CONTINUATION DURING DISABILITY. If Employee for any reason
(except as expressly provided below) becomes temporarily or permanently disabled
so that he is unable to perform the duties under this Agreement, Employer agrees
to pay Employee the base salary otherwise payable to Employee pursuant to
paragraph 9 of this Agreement, reduced by the amounts received by Employee from
state disability insurance, or worker's compensation or other similar insurance
benefits through policies provided by Employer, for a period of six (6) months
from the date of disability.
For purposes of this paragraph 10, "disability" shall be defined as
provided in Employer's disability insurance program. Notwithstanding anything
herein to the contrary, Employer shall have no obligation to make payments for a
disability resulting from the deliberate, intentional actions of Employee, such
as, but not limited to, attempted suicide or chemical dependence of Employee.
XI. INCENTIVE COMPENSATION. Employee shall be entitled to receive bonus
or incentive compensation subject to the right of the Board of Directors, in its
sole discretion, to determine the amount of compensation available for bonus or
incentive payments to Employee
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each year during the term of this Agreement in connection with its review of
Employee's performance and Employer's results of operations.
XII. STOCK OPTIONS. Employer has previously granted stock options to
Employee. Employer's parent holding company may, but is not obligated to, grant
additional stock options to Employee in the future which grants, if any, shall
be within the sole discretion of the Board of Directors of Employer's parent
holding company and subject to the terms and provisions of Employer's stock
option plan pursuant to which such grants are effected. Any such grants shall
be evidenced by a stock option agreement entered into between Employer's parent
holding company and Employee pursuant to such stock option plan and a copy of
each such stock option agreement shall be attached to this Agreement as an
exhibit. Notwithstanding any provision of any such stock option plan or any
such stock option agreement to the contrary, no rights of employment shall be
conferred upon Employee or result from any such stock option plan or any stock
option agreement entered into between Employer or its parent holding company and
Employee. Any employment rights and corresponding duties of Employee pursuant
to his employment by Employer shall be limited to and interpreted solely in
accordance with the terms and provisions of this Agreement.
XIII. OTHER BENEFITS. Employee shall be entitled to those employee
benefits adopted by Employer for all employees of Employer, subject to
applicable qualification requirements and regulatory approval requirements, if
any. Employee shall be further entitled to the following additional benefits
which shall supplement or replace, to the extent duplicative of any part or all
of the general employee benefits, the benefits otherwise provided to Employee:
A. VACATION. Employee shall be entitled to eighteen (18) days
annual vacation leave at his then existing rate of base salary each year during
the term of this Agreement. Employee may be absent from his employment for
vacation as long as such leave is reasonable and does not jeopardize his
responsibilities and duties specified in this Agreement. The length of vacation
should not exceed two (2) weeks without the approval of Employer's Chief
Executive Officer. Accrual of vacation time, if any, shall be determined in
accordance with Employer's personnel policies.
B. AUTOMOBILE ALLOWANCE AND INSURANCE. Employer shall pay to
Employee an automobile allowance of Three Thousand Dollars ($3,000.00) per year
during the term of this Agreement, payable at the rate of Two Hundred Fifty
Dollars ($250.00) per month. Employee shall acquire or otherwise make available
for his business and personal use an automobile, suitable to his position, and
(i) maintain it in good condition and repair; (ii) maintain public liability
insurance and property damage insurance policies with insurer(s) acceptable to
Employer and such coverages in such amounts as may be acceptable to Employer
from time to time; and (iii) such policies shall name Employer as an additional
insured, subject to the requirement that Employee's allowance described above
shall be increased in an amount equal to the additional premium expense, if any,
resulting from Employer being named as an additional insured. Employer may, in
its sole discretion, elect to provide and pay for such insurance policies in
lieu of Employee maintaining such policies.
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XIV. ANNUAL PHYSICAL EXAMINATION. Employer shall pay or reimburse Employee
for the cost of an annual physical examination conducted by a California
licensed physician selected by Employee and reasonably acceptable to Employer.
XV. BUSINESS EXPENSES. Employee shall be reimbursed for all ordinary and
necessary expenses incurred by Employee in connection with his employment.
Employee shall also be reimbursed for reasonable expenses incurred in activities
associated with promoting the business of Employer, including expenses for
entertainment, travel, conventions, educational programs, club memberships and
similar items. Employer will pay for or will reimburse Employee for such
expenses upon presentation by Employee from time to time of receipts or other
appropriate evidence of such expenditures.
XVI. TERMINATION OF AGREEMENT.
A. Automatic Termination. This Agreement shall terminate
automatically without further act of the parties and immediately upon the
occurrence of any one of the following events, subject to either party's right,
without any obligation whatsoever, to waive an event reasonably susceptible of
waiver, and the obligation of Employer to pay the amounts which would otherwise
be payable to Employee under this Agreement through the end of the month in
which the event occurs, except that only in the event of termination based upon
subparagraphs (1), (4) or (12, to the extent of Employer's breach) below shall
Employee be entitled to receive severance payments based upon automatic
termination pursuant to paragraph 16 (d) of this Agreement:
1. The occurrence of circumstances that make it impossible or
impractical for Employer to conduct or continue its
business.
2. The death of Employee.
3. The loss by Employee of legal capacity.
4. The loss by Employer of legal capacity to contract.
5. The willful, intentional and material breach of duty by
Employee in the course of his employment.
6. The habitual and continued neglect by Employee of his
employment duties and obligations under this Agreement.
7. The continuous mental or physical incapacity of Employee,
subject to Employee's rights under paragraph 10 of this
Agreement.
8. Employee's willful and intentional violation of any State of
California or federal banking laws, or of the Bylaws, rules,
policies or resolutions of Employer or its parent holding
company, or of the rules or regulations of the California
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Superintendent of Banks or the Federal Deposit Insurance
Corporation, or other regulatory agency or governmental
authority having jurisdiction over Employer, its parent
holding company or their respective subsidiaries.
9. The determination by a state or federal banking agency or
governmental authority having jurisdiction over Employer or
its parent holding company that Employee is not suitable to
act in the capacity for which he is employed by Employer.
10. Employee is convicted of any felony or a crime involving
moral turpitude or commits a fraudulent or dishonest act.
11. Employee discloses without authority any secret or
confidential information concerning Employer, its parent
holding company or their respective subsidiaries or takes
any action which Employer's Board of Directors determines,
in its sole discretion and subject to good faith, fair
dealing and reasonableness, constitutes unfair competition
with or induces any customer to breach any contract with
Employer, its parent holding company or their respective
subsidiaries.
12. Either party breaches the terms or provisions of this
Agreement.
B. TERMINATION BY EMPLOYER. Employer may, at its election and in
its sole discretion, terminate this Agreement for any reason, or for no reason,
by giving not less than thirty (30) days' prior written notice of termination to
Employee, without prejudice to any other remedy to which Employer may be
entitled either at law, in equity or under this Agreement. Upon such
termination, Employee shall be entitled to receive any employment benefits which
shall have accrued prior to such termination and the severance pay specified in
paragraph 16 (d) below.
C. TERMINATION BY EMPLOYEE. This Agreement may be terminated by
Employee for any reason, or no reason, by giving not less than thirty (30) days'
prior written notice of termination to Employer. Upon such termination, all
rights and obligations accruing to Employee under this Agreement shall cease,
except that such termination shall not prejudice Employee's rights regarding
employment benefits which shall have accrued prior to such termination and any
other remedy which Employee may have at law, in equity or under this Agreement,
which remedy accrued prior to such termination.
D. SEVERANCE PAY - Termination by Employer. In the event of
termination by Employer pursuant to paragraph 16 (b) or automatic termination
based upon paragraph 16 (a) (1), (4) or (12, to the extent of Employer's breach)
of this Agreement, Employee shall be entitled to receive severance pay at
Employee's rate of salary immediately preceding such termination equal to six
(6) months' salary (in addition to incentive compensation or bonus payments due
Employee, if any) payable in twelve (12) substantially equal installments on the
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fifteenth and last day of each month following such termination.
Notwithstanding the foregoing, in the event of a "change in control" as defined
in subparagraph (e) below, Employee shall not be entitled to severance pay
pursuant to this subparagraph (d) and any rights of Employee to severance pay
shall be limited to such rights as are specified in subparagraph (e) below.
Employee acknowledges and agrees that severance pay pursuant to this
subparagraph (d) is in lieu of all damages, payments and liabilities on account
of the early termination of this Agreement and the sole and exclusive remedy for
Employee terminated at the will of Employer pursuant to paragraph 16(b) or
pursuant to certain provisions of paragraph 16 (a) described herein.
E. SEVERANCE PAY - CHANGE IN CONTROL. In the event of a "change in
control" as defined herein and within a period of one (1) year following
consummation of such a change in control (i) Employee's employment is
terminated; or (ii) without Employee's consent there occurs (A) any adverse
change in the nature and scope of Employee's position, responsibilities, duties,
salary, benefits or location of employment, or (B) any event which reasonably
constitutes a demotion, significant diminution or constructive termination (by
resignation or otherwise) of Employee's employment, then Employee shall be
entitled to receive severance pay in addition to any bonus or incentive
compensation payments due Employee. Any such severance pay due Employee shall
be in an amount equal to one (1) times Employee's average annual compensation
for the five (5) years immediately preceding the change in control. Employee's
average annual compensation shall be the average of the aggregate compensation
paid by Employer to Employee which was includable in Employee's gross income for
federal income tax purposes for the five (5) tax years ending immediately prior
to the change in control divided by the number five (5).
If all or any portion of the amounts payable to Employee pursuant to this
paragraph 16 (e) alone or together with other payments which Employee has the
right to receive from Employer, constitute "excess parachute payments" within
the meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), that are subject to the excise tax imposed by Section 4999 of the
Code (or similar tax and/or assessment), such amounts payable hereunder shall be
reduced to the extent necessary, after first applying any similar reduction in
payments to be received from any other plan or program sponsored by Employer
from which Employee has a right to receive payments subject to Sections 280G and
4999 of the Code, including without limitation any Salary Continuation Agreement
made between Employer and Employee, so as to cause a reduction of any excise tax
pursuant to Section 4999 of the Code to equal "zero".
Any such severance shall be payable in twenty-four (24) substantially equal
installments on the fifteenth and last day of each month following such
termination or an event described in paragraph 16 (e) (ii) of this Agreement.
Such severance payment, if any, shall be in lieu of all damages, payments and
liabilities on account of the events described above for which such severance
payment, if any, may be due Employee and any severance payment rights of
Employee under paragraph 16 (d) of this Agreement. This subparagraph (e) shall
be binding upon and inure to the benefit of the parties and any successors or
assigns or employer or any "person" as defined herein.
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Notwithstanding the foregoing, Employee shall not be entitled to receive
nor shall Employer, its successors, assigns or any "person" as defined herein be
obligated to pay severance payments pursuant to this subparagraph (e) in the
event of an occurrence described in paragraph 16, subparagraphs (5), (6), (8),
(10), (11) or (12, to the extent of an Employee breach), or in the event of a
determination pursuant to subparagraph (9) thereof, or in the event Employee
terminates employment in accordance with paragraph 16 (c) and the termination is
not a result of or based upon the occurrence of any event described in paragraph
16 (e) (ii).
A "change in control" of Employer for purposes of this Agreement and
subparagraph (e) shall mean the occurrence of any of the following events with
respect to Employer (with the term "Employer" being defined for such a change in
control to include any parent holding company), but specifically excluding from
a "change in control" any of the following events in which an employee stock
ownership plan sponsored by Employer or its parent holding company is involved
as a party or participant in acquiring "control" or in a transaction or series
of transactions resulting in such a "change in control": (i) a change in
control of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or in response to any other form
or report to the regulatory agencies or governmental authorities having
jurisdiction over Employer or any stock exchange on which Employer's shares are
listed which requires the reporting of a change in control; (ii) any merger,
consolidation or reorganization of Employer in which Employer does not survive;
(iii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition
(in one transaction or a series of transactions) of any assets of Employer
having an aggregate fair market value of fifty percent (50%) of the total value
of the assets of Employer, reflected in the most recent balance sheet of
Employer; (iv) a transaction whereby any "person" (as such term is used in the
Exchange Act or any individual, corporation, partnership, trust or any other
entity) is or becomes the beneficial owner, directly or indirectly, of
securities of Employer representing 25% or more of the combined voting power of
Employer's then outstanding securities; (v) if in any one year period,
individuals who at the beginning of such period constitute the Board of
Directors of Employer cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election by Employer's
shareholders, of each new director is approved by a vote of a least
three-quarters of the directors then still in office who were directors at the
beginning of the period; (iv) a majority of the members of the Board of
Directors of Employer in office prior to the happening of any event determines
in its sole discretion that as a result of such event there has been a change in
control.
XVII. NOTICES. Any notices to be given hereunder by either party to the
other shall be in writing and may be transmitted by personal delivery or by U.S.
mail, registered or certified, postage prepaid with return receipt requested.
Mailed notices shall be addressed to the parties at the addresses listed as
follows:
Employer: Principal place of business
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Employee: Principal place of business as shown in Employer's Personnel
Records and Employee's personal file.
Each party may change the address for receipt of notices by written notice in
accordance with this paragraph 17. Notices delivered personally shall be deemed
communicated as of the date of actual receipt; mailed notices shall be deemed
communicated as of three (3) days after the date of mailing.
XVIII. ARBITRATION. All claims, disputes and other matters in question
arising out of or relating to this Agreement or the breach or interpretation
thereof, other than those matters which are to be determined by the Employer in
its sole and absolute discretion, shall be resolved by binding arbitration
before a representative member, selected by the mutual agreement of the parties,
of the Judicial Arbitration and Mediation Services, Inc. ("JAMS"), presently
located at 111 Pine Street, Suite 710, in San Francisco, California, in
accordance with the rules and procedures of JAMS then in effect. In the event
JAMS is unable or unwilling to conduct such arbitration, or has discontinued its
business, the parties agree that a representative member, selected by the mutual
agreement of the parties, of the American Arbitration Association ("AAA"),
presently located at 417 Montgomery Street, in San Francisco, California, shall
conduct such binding arbitration in accordance with the rules and procedures of
the AAA then in effect. Notice of the demand for arbitration shall be filed in
writing with the other party to this Agreement and with JAMS (or AAA, if
necessary). In no event shall the demand for arbitration be made after the date
when institution of legal or equitable proceedings based on such claim, dispute
or other matter in question would be barred by the applicable statute of
limitations. Any award rendered by JAMS or AAA shall be final and binding upon
the parties, and as applicable, their respective heirs, beneficiaries, legal
representatives, agents, successors and assigns, and may be entered in any court
having jurisdiction thereof. The obligation of the parties to arbitrate
pursuant to this clause shall be specifically enforceable in accordance with,
and shall be conducted consistently with, the provisions of Title 9 of Part 3 of
the California Code of Civil Procedure. Any arbitration hereunder shall be
conducted in Fresno, California, unless otherwise agreed to by the parties.
XIX. ATTORNEYS' FEES AND COSTS. In the event of litigation, arbitration
or any other action or proceeding between the parties to interpret or enforce
this Agreement or any part thereof or otherwise arising out of or relating to
this Agreement, the prevailing party shall be entitled to recover its costs
related to any such action or proceeding and its reasonable fees of attorneys,
accountants and expert witnesses incurred by such party in connection with any
such action or proceeding. The prevailing party shall be deemed to be the party
which obtains substantially the relief sought by final resolution, compromise or
settlement, or as may otherwise be determined by order of a court of competent
jurisdiction in the event of litigation, an award or decision of one or more
arbitrators in the event of arbitration, or a decision of a comparable official
in the event of any other action or proceeding. Every obligation to indemnify
under this Agreement includes the obligation to pay reasonable fees of
attorneys, accountants and expert witnesses incurred by the indemnified party in
connection with matters subject to indemnification.
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XX. ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with respect to the
employment of Employee by Employer and contains all of the covenants and
agreements between the parties with respect to the employment of Employee by
Employer. Each party to this Agreement acknowledges that no other
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
set forth herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding on either party.
XXI. MODIFICATIONS. Any modification of this Agreement will be effective
only if it is in writing and signed by a party or its authorized representative.
XXII. WAIVER. The failure of either party to insist on strict compliance
with any of the terms, provisions, covenants, or conditions of this Agreement by
the other party shall not be deemed a waiver of any term, provision, covenant,
or condition, individually or in the aggregate, unless such waiver is in
writing, nor shall any waiver or relinquishment of any right or power at any one
time or times be deemed a waiver or relinquishment of that right or power for
all or any other times.
XXIII. PARTIAL INVALIDITY. If any provision in this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force and effect
without being impaired or invalidated in any way.
XXIV. INTERPRETATION. This Agreement shall be construed without regard to
the party responsible for the preparation of the Agreement and shall be deemed
to have been prepared jointly by the parties. Any ambiguity or uncertainty
existing in this Agreement shall not be interpreted against either party, but
according to the application of other rules of contract interpretation, if an
ambiguity or uncertainty exists.
XXV. GOVERNING LAW AND VENUE. The laws of the State of California, other
than those laws denominated choice of law rules, shall govern the validity,
construction and effect of this Agreement. Any action which in any way involves
the rights, duties and obligations of the parties hereunder shall be brought in
the courts of the State of California and venue for any action or proceeding
shall be in Fresno County or in the United States District Court for the Eastern
District of California, and the parties hereby submit to the personal
jurisdiction of said courts.
XXVI. PAYMENTS DUE DECEASED EMPLOYEE. If Employee dies prior to the
expiration of the term of his employment, any payments that may be due Employee
from Employer under this Agreement as of the date of death shall be paid to
Employee's executors, administrators, heirs, personal representatives,
successors, or assigns.
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IN WITNESS WHEREOF, the parties have executed this Agreement consisting of
eleven pages in the City of Fresno, County of Fresno, State of California as of
the date set forth above.
EMPLOYER: EMPLOYEE:
REGENCY BANK
By:____________________ __________________________
Steven F. Hertel Steven R. Canfield
President
[ADD NOTARIAL ACKNOWLEDGEMENT]
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of August ___, 1996 by and
between REGENCY BANK, a California banking corporation ("Employer"), and Robert
J. Longatti ("Employee").
RECITALS
WHEREAS, Employer and Employee desire to enter into an agreement for the
purposes of engaging the services of Employee by reason of his experience,
training and ability in the commercial banking industry;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Employer and Employee agree as follows:
AGREEMENT
I. TERM OF EMPLOYMENT. Employer employs Employee and Employee hereby
accepts employment with Employer, upon the terms and conditions hereinafter set
forth, for a period of three (3) years from the date hereof, and on each
anniversary date thereafter, the term of this Agreement shall be deemed
automatically extended for an additional one (1) year term, subject to the
termination provisions of paragraph 16.
II. DUTIES AND OBLIGATIONS OF EMPLOYEE. Employee shall serve as the
Executive Vice President and Chief Credit Officer of Employer and shall perform
the customary duties of such office in the commercial banking industry as may
from time to time be reasonably requested of him by the Board of Directors and
President and Chief Executive Officer of Employer in addition to the following:
A. Participating in community affairs which are beneficial to the
Employer, its parent holding company and their respective subsidiaries;
B. Maintaining a good relationship with the Boards of Directors of
Employer, its parent holding company and their respective subsidiaries, and the
shareholders of Employer's parent holding company; and
C. Maintaining a good relationship with regulatory agencies and
governmental authorities having jurisdiction over Employer, its parent holding
company or their respective subsidiaries.
III. DEVOTION TO EMPLOYER'S BUSINESS.
A. Employee shall devote his full business time, ability, and
attention to the business of Employer during the term of this Agreement and
shall not during the term of this Agreement, without the prior written consent
of Employer's Board of Directors, engage in any other business activities,
duties, or pursuits whatsoever, or directly or indirectly render any services
of a business, commercial, or professional nature to any other person or
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organization, whether for compensation or otherwise, which are in conflict with
the business of Employer, its parent holding company or their respective
subsidiaries. However, the expenditure of reasonable amounts of time for
educational, charitable, or professional activities shall not be deemed a breach
of this Agreement if those activities do not materially interfere with the
services required of Employee under this Agreement. Nothing in this Agreement
shall be interpreted to prohibit Employee from making passive personal
investments. However, Employee shall not directly or indirectly acquire, hold,
or retain any material interest in any business competing with or similar in
nature to the business of Employer, its parent holding company or their
respective subsidiaries.
B. Employee agrees to conduct himself at all times with due regard to
public conventions and morals. Employee further agrees not to do or commit any
act that will reasonably tend to shock or offend the community, or to prejudice
Employer or the banking industry in general.
C. Employee hereby represents and agrees that the services to be
performed under the terms of this Agreement are of a special, unique, unusual,
extraordinary, and intellectual character that gives them a peculiar value, the
loss of which cannot be reasonably or adequately compensated in damages in an
action at law. Employee therefore expressly agrees that Employer, in addition
to any other rights or remedies that Employer may possess, shall be entitled to
injunctive and other equitable relief to prevent or remedy a breach of this
Agreement by Employee.
IV. NONCOMPETITION BY EMPLOYEE. Employee shall not, during the term of
this Agreement, directly or indirectly, either as an employee, employer,
consultant, agent, principal, stockholder, officer, director, or in any other
individual or representative capacity, engage or participate in any competitive
banking or financial services business.
V. INDEMNIFICATION FOR NEGLIGENCE OR MISCONDUCT. Employee shall indemnify
and hold Employer harmless from all liability for loss, damage, or injury to
persons or property resulting from the gross negligence or intentional
misconduct of the Employee.
VI. DISCLOSURE OF INFORMATION. Employee shall not, either before or after
termination of this Agreement, disclose to anyone any information relating to
Employer, its parent holding company or their respective subsidiaries or any
financial information, trade or business secrets, customer lists, computer
software or other information not otherwise publicly available concerning the
business or operations of Employer, its parent holding company or their
respective subsidiaries. Employee recognizes and acknowledges that any
financial information concerning any of the customers of Employer, its parent
holding company or their respective subsidiaries, as it may exist from time to
time, is strictly confidential and is a valuable, special and unique business
asset. Employee shall not, either before or after termination of this
Agreement, disclose to anyone said financial information or any part thereof,
for any reason or purpose whatsoever. This paragraph 6 shall survive the
expiration or termination of this Agreement.
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VII. WRITTEN OR PRINTED MATERIAL. All written or printed materials,
notebooks and records used by Employee in performing duties for Employer, its
parent holding company and their respective subsidiaries, other than Employee's
personal notes and diaries, are and shall remain the sole property of Employer.
Upon termination of employment, Employee shall promptly return all such material
(including all copies) to Employer. This paragraph 7 shall survive expiration
or termination of this Agreement.
VIII. SURETY BOND. Employee agrees that he will furnish all information
and take any other steps necessary from time to time to enable Employer to
obtain or maintain a fidelity bond conditional on the rendering of a true
account by Employee of all monies, goods, or other property which may come
into the custody, charge, or possession of Employee during the term of his
employment. The surety company issuing the bond and the amount of the bond
must be acceptable to Employer. All premiums on the bond shall be paid by
Employer. If Employee cannot qualify for a surety bond at any time during
the term of this Agreement, Employer shall have the option to terminate this
Agreement immediately without any obligation to pay severance benefits to
Employee in accordance with paragraph 16 (d) of this Agreement.
IX. BASE SALARY. In consideration for the services to be performed
hereunder, Employee shall receive a salary at the rate of Eighty-Nine Thousand
Dollars ($89,000.00) per annum, payable in installments during the term of this
Agreement of approximately Three Thousand Seven Hundred and Eight Dollars and
Thirty-Three Cents ($3,708.33) on the fifteenth and last day of each month,
subject to applicable adjustments for withholding taxes and prorations for any
partial employment period. Employee shall receive such annual adjustments in
salary, if any, as may be determined in the sole discretion of Employer's Board
of Directors or Chief Executive Officer resulting from the annual review of
Employee's compensation in the first quarter of each year during the term of
this Agreement.
X. SALARY CONTINUATION DURING DISABILITY. If Employee for any reason
(except as expressly provided below) becomes temporarily or permanently disabled
so that he is unable to perform the duties under this Agreement, Employer agrees
to pay Employee the base salary otherwise payable to Employee pursuant to
paragraph 9 of this Agreement, reduced by the amounts received by Employee from
state disability insurance, or worker's compensation or other similar insurance
benefits through policies provided by Employer, for a period of six (6) months
from the date of disability.
For purposes of this paragraph 10, "disability" shall be defined as
provided in Employer's disability insurance program. Notwithstanding anything
herein to the contrary, Employer shall have no obligation to make payments for a
disability resulting from the deliberate, intentional actions of Employee, such
as, but not limited to, attempted suicide or chemical dependence of Employee.
XI. INCENTIVE COMPENSATION. Employee shall be entitled to receive bonus
or incentive compensation subject to the right of the Board of Directors, in its
sole discretion, to determine the amount of compensation available for bonus or
incentive payments to Employee
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each year during the term of this Agreement in connection with its review of
Employee's performance and Employer's results of operations.
XII. STOCK OPTIONS. Employer has previously granted stock options to
Employee. Employer's parent holding company may, but is not obligated to, grant
additional stock options to Employee in the future which grants, if any, shall
be within the sole discretion of the Board of Directors of Employer's parent
holding company and subject to the terms and provisions of Employer's stock
option plan pursuant to which such grants are effected. Any such grants shall
be evidenced by a stock option agreement entered into between Employer's parent
holding company and Employee pursuant to such stock option plan and a copy of
each such stock option agreement shall be attached to this Agreement as an
exhibit. Notwithstanding any provision of any such stock option plan or any
such stock option agreement to the contrary, no rights of employment shall be
conferred upon Employee or result from any such stock option plan or any stock
option agreement entered into between Employer or its parent holding company and
Employee. Any employment rights and corresponding duties of Employee pursuant
to his employment by Employer shall be limited to and interpreted solely in
accordance with the terms and provisions of this Agreement.
XIII. OTHER BENEFITS. Employee shall be entitled to those employee
benefits adopted by Employer for all employees of Employer, subject to
applicable qualification requirements and regulatory approval requirements, if
any. Employee shall be further entitled to the following additional benefits
which shall supplement or replace, to the extent duplicative of any part or all
of the general employee benefits, the benefits otherwise provided to Employee:
A. VACATION. Employee shall be entitled to eighteen (18) days annual
vacation leave at his then existing rate of base salary each year during the
term of this Agreement. Employee may be absent from his employment for vacation
as long as such leave is reasonable and does not jeopardize his responsibilities
and duties specified in this Agreement. The length of vacation should not
exceed two (2) weeks without the approval of Employer's Chief Executive Officer.
Accrual of vacation time, if any, shall be determined in accordance with
Employer's personnel policies.
B. AUTOMOBILE ALLOWANCE AND INSURANCE. Employer shall pay to
Employee an automobile allowance of Four Thousand Two Hundred Dollars
($4,200.00) per year during the term of this Agreement, payable at the rate of
Three Hundred Fifty Dollars ($350.00) per month. Employee shall acquire or
otherwise make available for his business and personal use an automobile,
suitable to his position, and (i) maintain it in good condition and repair;
(ii) maintain public liability insurance and property damage insurance policies
with insurer(s) acceptable to Employer and such coverages in such amounts as may
be acceptable to Employer from time to time; and (iii) such policies shall name
Employer as an additional insured, subject to the requirement that Employee's
allowance described above shall be increased in an amount equal to the
additional premium expense, if any, resulting from Employer being named as an
additional insured. Employer may, in its sole discretion, elect to provide and
pay for such insurance policies in lieu of Employee maintaining such policies.
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XIV. ANNUAL PHYSICAL EXAMINATION. Employer shall pay or reimburse
Employee for the cost of an annual physical examination conducted by a
California licensed physician selected by Employee and reasonably acceptable
to Employer.
XV. BUSINESS EXPENSES. Employee shall be reimbursed for all ordinary and
necessary expenses incurred by Employee in connection with his employment.
Employee shall also be reimbursed for reasonable expenses incurred in activities
associated with promoting the business of Employer, including expenses for
entertainment, travel, conventions, educational programs, club memberships and
similar items. Employer will pay for or will reimburse Employee for such
expenses upon presentation by Employee from time to time of receipts or other
appropriate evidence of such expenditures.
XVI. TERMINATION OF AGREEMENT.
A. AUTOMATIC TERMINATION. This Agreement shall terminate
automatically without further act of the parties and immediately upon the
occurrence of any one of the following events, subject to either party's right,
without any obligation whatsoever, to waive an event reasonably susceptible of
waiver, and the obligation of Employer to pay the amounts which would otherwise
be payable to Employee under this Agreement through the end of the month in
which the event occurs, except that only in the event of termination based upon
subparagraphs (1), (4) or (12, to the extent of Employer's breach) below shall
Employee be entitled to receive severance payments based upon automatic
termination pursuant to paragraph 16 (d) of this Agreement:
1. The occurrence of circumstances that make it impossible or
impractical for Employer to conduct or continue its business.
2. The death of Employee.
3. The loss by Employee of legal capacity.
4. The loss by Employer of legal capacity to contract.
5. The willful, intentional and material breach of duty by
Employee in the course of his employment.
6. The habitual and continued neglect by Employee of his
employment duties and obligations under this Agreement.
7. The continuous mental or physical incapacity of Employee,
subject to Employee's rights under paragraph 10 of this
Agreement.
8. Employee's willful and intentional violation of any State of
California or federal banking laws, or of the Bylaws, rules,
policies or resolutions of Employer or its parent holding
company, or of the rules or regulations of the California
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Superintendent of Banks or the Federal Deposit Insurance
Corporation, or other regulatory agency or governmental
authority having jurisdiction over Employer, its parent
holding company or their respective subsidiaries.
9. The determination by a state or federal banking agency or
governmental authority having jurisdiction over Employer or
its parent holding company that Employee is not suitable to
act in the capacity for which he is employed by Employer.
10. Employee is convicted of any felony or a crime involving
moral turpitude or commits a fraudulent or dishonest act.
11. Employee discloses without authority any secret or
confidential information concerning Employer, its parent
holding company or their respective subsidiaries or takes
any action which Employer's Board of Directors determines,
in its sole discretion and subject to good faith, fair
dealing and reasonableness, constitutes unfair competition
with or induces any customer to breach any contract with
Employer, its parent holding company or their respective
subsidiaries.
12. Either party breaches the terms or provisions of this
Agreement.
B. TERMINATION BY EMPLOYER. Employer may, at its election and in its
sole discretion, terminate this Agreement for any reason, or for no reason, by
giving not less than thirty (30) days' prior written notice of termination to
Employee, without prejudice to any other remedy to which Employer may be
entitled either at law, in equity or under this Agreement. Upon such
termination, Employee shall be entitled to receive any employment benefits which
shall have accrued prior to such termination and the severance pay specified in
paragraph 16 (d) below.
C. TERMINATION BY EMPLOYEE. This Agreement may be terminated by
Employee for any reason, or no reason, by giving not less than thirty (30) days'
prior written notice of termination to Employer. Upon such termination, all
rights and obligations accruing to Employee under this Agreement shall cease,
except that such termination shall not prejudice Employee's rights regarding
employment benefits which shall have accrued prior to such termination and any
other remedy which Employee may have at law, in equity or under this Agreement,
which remedy accrued prior to such termination.
D. SEVERANCE PAY - Termination by Employer. In the event of
termination by Employer pursuant to paragraph 16 (b) or automatic termination
based upon paragraph 16 (a) (1), (4) or (12, to the extent of Employer's breach)
of this Agreement, Employee shall be entitled to receive severance pay at
Employee's rate of salary immediately preceding such termination equal to six
(6) months' salary (in addition to incentive compensation or bonus payments due
Employee, if any) payable in twelve (12) substantially equal installments on the
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fifteenth and last day of each month following such termination.
Notwithstanding the foregoing, in the event of a "change in control" as defined
in subparagraph (e) below, Employee shall not be entitled to severance pay
pursuant to this subparagraph (d) and any rights of Employee to severance pay
shall be limited to such rights as are specified in subparagraph (e) below.
Employee acknowledges and agrees that severance pay pursuant to this
subparagraph (d) is in lieu of all damages, payments and liabilities on account
of the early termination of this Agreement and the sole and exclusive remedy for
Employee terminated at the will of Employer pursuant to paragraph 16(b) or
pursuant to certain provisions of paragraph 16 (a) described herein.
E. SEVERANCE PAY - CHANGE IN CONTROL. In the event of a "change in
control" as defined herein and within a period of one (1) year following
consummation of such a change in control (i) Employee's employment is
terminated; or (ii) without Employee's consent there occurs (A) any adverse
change in the nature and scope of Employee's position, responsibilities, duties,
salary, benefits or location of employment, or (B) any event which reasonably
constitutes a demotion, significant diminution or constructive termination (by
resignation or otherwise) of Employee's employment, then Employee shall be
entitled to receive severance pay in addition to any bonus or incentive
compensation payments due Employee. Any such severance pay due Employee shall
be in an amount equal to one (1) times Employee's average annual compensation
for the five (5) years immediately preceding the change in control. Employee's
average annual compensation shall be the average of the aggregate compensation
paid by Employer to Employee which was includable in Employee's gross income for
federal income tax purposes for the five (5) tax years ending immediately prior
to the change in control divided by the number five (5).
If all or any portion of the amounts payable to Employee pursuant to this
paragraph 16 (e) alone or together with other payments which Employee has the
right to receive from Employer, constitute "excess parachute payments" within
the meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), that are subject to the excise tax imposed by Section 4999 of the
Code (or similar tax and/or assessment), such amounts payable hereunder shall be
reduced to the extent necessary, after first applying any similar reduction in
payments to be received from any other plan or program sponsored by Employer
from which Employee has a right to receive payments subject to Sections 280G and
4999 of the Code, including without limitation any Salary Continuation Agreement
made between Employer and Employee, so as to cause a reduction of any excise tax
pursuant to Section 4999 of the Code to equal "zero".
Any such severance shall be payable in twenty-four (24) substantially equal
installments on the fifteenth and last day of each month following such
termination or an event described in paragraph 16 (e) (ii) of this Agreement.
Such severance payment, if any, shall be in lieu of all damages, payments and
liabilities on account of the events described above for which such severance
payment, if any, may be due Employee and any severance payment rights of
Employee under paragraph 16 (d) of this Agreement. This subparagraph (e) shall
be binding upon and inure to the benefit of the parties and any successors or
assigns or employer or any "person" as defined herein.
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Notwithstanding the foregoing, Employee shall not be entitled to receive
nor shall Employer, its successors, assigns or any "person" as defined herein be
obligated to pay severance payments pursuant to this subparagraph (e) in the
event of an occurrence described in paragraph 16, subparagraphs (5), (6), (8),
(10), (11) or (12, to the extent of an Employee breach), or in the event of a
determination pursuant to subparagraph (9) thereof, or in the event Employee
terminates employment in accordance with paragraph 16 (c) and the termination is
not a result of or based upon the occurrence of any event described in paragraph
16 (e) (ii).
A "change in control" of Employer for purposes of this Agreement and
subparagraph (e) shall mean the occurrence of any of the following events with
respect to Employer (with the term "Employer" being defined for such a change in
control to include any parent holding company), but specifically excluding from
a "change in control" any of the following events in which an employee stock
ownership plan sponsored by Employer or its parent holding company is involved
as a party or participant in acquiring "control" or in a transaction or series
of transactions resulting in such a "change in control": (i) a change in
control of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or in response to any other form
or report to the regulatory agencies or governmental authorities having
jurisdiction over Employer or any stock exchange on which Employer's shares are
listed which requires the reporting of a change in control; (ii) any merger,
consolidation or reorganization of Employer in which Employer does not survive;
(iii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition
(in one transaction or a series of transactions) of any assets of Employer
having an aggregate fair market value of fifty percent (50%) of the total value
of the assets of Employer, reflected in the most recent balance sheet of
Employer; (iv) a transaction whereby any "person" (as such term is used in the
Exchange Act or any individual, corporation, partnership, trust or any other
entity) is or becomes the beneficial owner, directly or indirectly, of
securities of Employer representing 25% or more of the combined voting power of
Employer's then outstanding securities; (v) if in any one year period,
individuals who at the beginning of such period constitute the Board of
Directors of Employer cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election by Employer's
shareholders, of each new director is approved by a vote of a least
three-quarters of the directors then still in office who were directors at the
beginning of the period; (iv) a majority of the members of the Board of
Directors of Employer in office prior to the happening of any event determines
in its sole discretion that as a result of such event there has been a change in
control.
XVII. NOTICES. Any notices to be given hereunder by either party to
the other shall be in writing and may be transmitted by personal delivery or by
U.S. mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at the addresses
listed as follows:
Employer:
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Employee: Principal place of business as shown in Employer's Personnel
Records and Employee's personal file.
Each party may change the address for receipt of notices by written notice in
accordance with this paragraph 17. Notices delivered personally shall be deemed
communicated as of the date of actual receipt; mailed notices shall be deemed
communicated as of three (3) days after the date of mailing.
XVIII. ARBITRATION. All claims, disputes and other matters in question
arising out of or relating to this Agreement or the breach or interpretation
thereof, other than those matters which are to be determined by the Employer in
its sole and absolute discretion, shall be resolved by binding arbitration
before a representative member, selected by the mutual agreement of the parties,
of the Judicial Arbitration and Mediation Services, Inc. ("JAMS"), presently
located at 111 Pine Street, Suite 710, in San Francisco, California, in
accordance with the rules and procedures of JAMS then in effect. In the event
JAMS is unable or unwilling to conduct such arbitration, or has discontinued its
business, the parties agree that a representative member, selected by the mutual
agreement of the parties, of the American Arbitration Association ("AAA"),
presently located at 417 Montgomery Street, in San Francisco, California, shall
conduct such binding arbitration in accordance with the rules and procedures of
the AAA then in effect. Notice of the demand for arbitration shall be filed in
writing with the other party to this Agreement and with JAMS (or AAA, if
necessary). In no event shall the demand for arbitration be made after the date
when institution of legal or equitable proceedings based on such claim, dispute
or other matter in question would be barred by the applicable statute of
limitations. Any award rendered by JAMS or AAA shall be final and binding upon
the parties, and as applicable, their respective heirs, beneficiaries, legal
representatives, agents, successors and assigns, and may be entered in any court
having jurisdiction thereof. The obligation of the parties to arbitrate
pursuant to this clause shall be specifically enforceable in accordance with,
and shall be conducted consistently with, the provisions of Title 9 of Part 3 of
the California Code of Civil Procedure. Any arbitration hereunder shall be
conducted in Fresno, California, unless otherwise agreed to by the parties.
XVII. ATTORNEYS' FEES AND COSTS. In the event of litigation, arbitration
or any other action or proceeding between the parties to interpret or enforce
this Agreement or any part thereof or otherwise arising out of or relating to
this Agreement, the prevailing party shall be entitled to recover its costs
related to any such action or proceeding and its reasonable fees of attorneys,
accountants and expert witnesses incurred by such party in connection with any
such action or proceeding. The prevailing party shall be deemed to be the party
which obtains substantially the relief sought by final resolution, compromise or
settlement, or as may otherwise be determined by order of a court of competent
jurisdiction in the event of litigation, an award or decision of one or more
arbitrators in the event of arbitration, or a decision of a comparable official
in the event of any other action or proceeding. Every obligation to indemnify
under this Agreement includes the obligation to pay reasonable fees of
attorneys, accountants and expert witnesses incurred by the indemnified party in
connection with matters subject to indemnification.
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XVIII. ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with respect to the
employment of Employee by Employer and contains all of the covenants and
agreements between the parties with respect to the employment of Employee by
Employer. Each party to this Agreement acknowledges that no other
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
set forth herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding on either party.
XIX. MODIFICATIONS. Any modification of this Agreement will be effective
only if it is in writing and signed by a party or its authorized representative.
XX. WAIVER. The failure of either party to insist on strict compliance
with any of the terms, provisions, covenants, or conditions of this Agreement by
the other party shall not be deemed a waiver of any term, provision, covenant,
or condition, individually or in the aggregate, unless such waiver is in
writing, nor shall any waiver or relinquishment of any right or power at any one
time or times be deemed a waiver or relinquishment of that right or power for
all or any other times.
XXI. PARTIAL INVALIDITY. If any provision in this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force and effect
without being impaired or invalidated in any way.
XXII. INTERPRETATION. This Agreement shall be construed without regard to
the party responsible for the preparation of the Agreement and shall be deemed
to have been prepared jointly by the parties. Any ambiguity or uncertainty
existing in this Agreement shall not be interpreted against either party, but
according to the application of other rules of contract interpretation, if an
ambiguity or uncertainty exists.
XXIII. GOVERNING LAW AND VENUE. The laws of the State of California, other
than those laws denominated choice of law rules, shall govern the validity,
construction and effect of this Agreement. Any action which in any way involves
the rights, duties and obligations of the parties hereunder shall be brought in
the courts of the State of California and venue for any action or proceeding
shall be in Fresno County or in the United States District Court for the Eastern
District of California, and the parties hereby submit to the personal
jurisdiction of said courts.
XXIV. PAYMENTS DUE DECEASED EMPLOYEE. If Employee dies prior to the
expiration of the term of his employment, any payments that may be due Employee
from Employer under this Agreement as of the date of death shall be paid to
Employee's executors, administrators, heirs, personal representatives,
successors, or assigns.
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IN WITNESS WHEREOF, the parties have executed this Agreement consisting of
eleven pages in the City of Fresno, County of Fresno, State of California as of
the date set forth above.
EMPLOYER: EMPLOYEE:
REGENCY BANK
By:_____________________ _____________________________
Steven F. Hertel Robert J. Longatti
President
[ADD NOTARIAL ACKNOWLEDGEMENT]
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of August ___, 1996 by and
between REGENCY INVESTMENT ADVISORS INCORPORATED, a California corporation
("Employer"), and Alan R. Graas ("Employee").
RECITALS
WHEREAS, Employer and Employee desire to enter into an agreement for the
purposes of engaging the services of Employee by reason of his experience,
training and ability in the financial services and money management industry;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Employer and Employee agree as follows:
AGREEMENT
I. TERM OF EMPLOYMENT. Employer employs Employee and Employee hereby
accepts employment with Employer, upon the terms and conditions hereinafter set
forth, for a period of three (3) years from the date hereof, and on each
anniversary date thereafter, the term of this Agreement shall be deemed
automatically extended for an additional one (1) year term, subject to the
termination provisions of paragraph 16.
II. DUTIES AND OBLIGATIONS OF EMPLOYEE. Employee shall serve as the
President Employer and shall perform the customary duties of such office as may
from time to time be reasonably requested of him by the Board of Directors of
Employer or the Chief Executive Officer of Regency Bancorp and Regency Bank, in
addition to the following:
A. Participating in community affairs which are beneficial to the
Employer, Regency Bancorp, Regency Bank and their respective subsidiaries;
B. Maintaining a good relationship with the Boards of Directors of
Employer, Regency Bancorp, Regency Bank and their respective subsidiaries, and
the shareholders of Regency Bancorp;
C. Maintaining a good relationship with regulatory agencies and
governmental authorities having jurisdiction over Employer, Regency Bancorp,
Regency Bank or their respective subsidiaries; and
D. Providing leadership in planning and implementing the conduct of
business and the affairs of Employer.
III. DEVOTION TO EMPLOYER'S BUSINESS.
A. Employee shall devote his full business time, ability, and
attention to the business of Employer during the term of this Agreement and
shall not during the term of this Agreement, without the prior written consent
of Employer's Board of Directors, engage in
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any other business activities, duties, or pursuits whatsoever, or directly or
indirectly render any services of a business, commercial, or professional nature
to any other person or organization, whether for compensation or otherwise,
which are in conflict with the business of Employer, Regency Bancorp, Regency
Bank or their respective subsidiaries. The preceding sentence shall not
probibit Employee from continuing as the General Partner of Graas Family Limited
Partnership, a California limited partnership, nor prevent Graas Family Limited
Partnership from holding the insurance license(s) of Employee and receiving
insurance commissions and other income generated by the activities of Employee
as described herein so long as all of such commissions and other income earned
from the date of Employee's employment by Employer are passed through to
Employer. Nothing in this Agreement shall be interpreted to prohibit Employee
from making passive personal investments. However, Employee shall not directly
or indirectly acquire, hold, or retain any material interest in any business
competing with or similar in nature to the business of Employer, Regency
Bancorp, Regency Bank or their respective subsidiaries, provided, however, that
nothing in this paragraph 3 (a) shall be deemed to prohibit Employee from
purchasing or owning equity securities of any issuer if those securities
constitute less than five percent of the class of equity securities and that
class is registered under the Securities Exchange Act of 1934.
B. Employee agrees to conduct himself at all times with due regard to
public conventions and morals. Employee further agrees not to do or commit any
act that will reasonably tend to shock or offend the community, or to prejudice
Employer, Regency Bancorp, Regency Bank or their respective subsidiaries.
C. Employee hereby represents and agrees that the services to be
performed under the terms of this Agreement are of a special, unique, unusual,
extraordinary, and intellectual character that gives them a peculiar value, the
loss of which cannot be reasonably or adequately compensated in damages in an
action at law. Employee therefore expressly agrees that Employer, in addition
to any other rights or remedies that Employer may possess, shall be entitled to
injunctive and other equitable relief to prevent or remedy a breach of this
Agreement by Employee.
IV. NONCOMPETITION BY EMPLOYEE. Employee shall not, during the term of
this Agreement, directly or indirectly, either as an employee, employer,
consultant, agent, principal, stockholder, officer, director, or in any other
individual or representative capacity, engage or participate in any
competitive banking, financial services or money management business.
V. INDEMNIFICATION FOR NEGLIGENCE OR MISCONDUCT. Employee shall indemnify
and hold Employer harmless from all liability for loss, damage, or injury to
persons or property resulting from the gross negligence or intentional
misconduct of the Employee.
VI. DISCLOSURE OF INFORMATION. Employee shall not, either before or after
termination of this Agreement, disclose to anyone any information relating to
Employer, Regency Bancorp, Regency Bank or their respective subsidiaries or any
financial information, trade or business secrets, customer lists, computer
software or other information not otherwise publicly available concerning the
business or operations of Employer, Regency Bancorp,
41
<PAGE>
Regency Bank or their respective subsidiaries. Employee recognizes and
acknowledges that any financial information concerning any customers of
Employer, Regency Bancorp, Regency Bank or their respective subsidiaries, as it
may exist from time to time, is strictly confidential and is a valuable, special
and unique business asset. Employee shall not, either before or after
termination of this Agreement, disclose to anyone said financial information or
any part thereof, for any reason or purpose whatsoever. This paragraph 6 shall
survive the expiration or termination of this Agreement.
VII. WRITTEN OR PRINTED MATERIAL. All written or printed materials,
notebooks and records used by Employee in performing duties for Employer,
Regency Bancorp, Regency Bank or their respective subsidiaries, other than
Employee's personal notes and diaries, are and shall remain the sole property of
Employer. Upon termination of employment, Employee shall promptly return all
such material (including all copies) to Employer. Employee agrees to hold all
of the foregoing materials in confidence and not to, directly or indirectly,
disclose, use copy, publish, summarize, or remove from the premises of Employer,
Regency Bancorp, Regency Bank or their respective subsidiaries, such materials
except during the period of employment described herein to the extent necessary
to carry out Employee's responsibilities under this Agreement and, after
termination of the period of employment hereunder, for three (3) years, unless
specifically authorized in writing by the Board of Directors of Employer.
Employee acknowledges that the pursuit of activities forbidden by this paragraph
7 would necessarily involve the use or disclosure of Employer's proprietary
information but that proof of such breach would be extremely difficult. To
forestall such disclosure, use and breach, and in consideration of the
employment under this Agreement, Employee agrees that for a period of three (3)
years after termination of his employment, Employee shall not, for himself or
any third party, use proprietary information of Employer, Regency Bancorp,
Regency Bank or their respective subsidiaries to solicit the business of any of
their respective customers by initiating direct contact with such customers or
to otherwise interfere with the business relationship between any of them and
any such customer, except that, upon termination of this Agreement, an
announcement thereof shall be sent to the customers of Employer in form and
substance as Employer and Employee shall in good faith mutually agree. This
paragraph 7 shall survive expiration or termination of this Agreement. Nothing
in this paragraph 7 is intended to limit any remedy of Employer, Regency
Bancorp, Regency Bank or their respective subsidiaries under the California
Uniform Trade Secrets Act (California Civil Code Section 3426), or otherwise
available under law.
VIII. SURETY BOND. Employee agrees that he will furnish all information
and take any other steps necessary from time to time to enable Employer to
obtain or maintain a fidelity bond conditional on the rendering of a true
account by Employee of all monies, goods, or other property which may come
into the custody, charge, or possession of Employee during the term of his
employment. The surety company issuing the bond and the amount of the bond
must be acceptable to Employer. All premiums on the bond shall be paid by
Employer. If Employee cannot qualify for a surety bond at any time during
the term of this Agreement, Employer shall have the option to terminate this
Agreement immediately without any obligation to pay severance benefits to
Employee in accordance with paragraph 16 (d) of this
42
<PAGE>
Agreement and without further obligation to Employee other than to pay accrued
salary, benefits or reimbursements.
IX. BASE SALARY. In consideration for the services to be performed
hereunder, Employee shall receive a salary at the rate of One Hundred Twenty-One
Thousand Five Hundred Dollars ($121,500.00) per annum, payable in installments
during the term of this Agreement of approximately Five Thousand Sixty-Two
Dollars and Fifty Cents ($5,062.50) on the fifteenth and last day of each month,
subject to applicable adjustments for withholding taxes and prorations for any
partial employment period. Employee shall receive such annual adjustments in
salary, if any, as may be determined in the sole discretion of Employer's Board
of Directors or the Chief Executive Officer of Regency Bancorp and Regency Bank,
resulting from the annual review of Employee's compensation in the first quarter
of each year during the term of this Agreement.
X. SALARY CONTINUATION DURING DISABILITY. If Employee for any reason
(except as expressly provided below) becomes temporarily or permanently disabled
so that he is unable to perform the duties under this Agreement, Employer agrees
to pay Employee the base salary otherwise payable to Employee pursuant to
paragraph 9 of this Agreement, reduced by the amounts received by Employee from
state disability insurance, or worker's compensation or other similar insurance
benefits through policies provided by Employer, for a period of six (6) months
from the date of disability.
For purposes of this paragraph 10, "disability" shall be defined as
provided in Employer's disability insurance program. Notwithstanding anything
herein to the contrary, Employer shall have no obligation to make payments for a
disability resulting from the deliberate, intentional actions of Employee, such
as, but not limited to, attempted suicide or chemical dependence of Employee.
XI. INCENTIVE COMPENSATION. Employee shall be entitled to receive bonus
or incentive compensation subject to the right of the Board of Directors, in its
sole discretion, to determine the amount of compensation available for bonus or
incentive payments to Employee each year during the term of this Agreement in
connection with its review of Employee's performance and Employer's results of
operations.
XII. STOCK OPTIONS. Regency Bancorp may, but is not obligated to, grant
stock options to Employee in the future which grants, if any, shall be within
the sole discretion of the Boards of Directors of Employer and Regency Bancorp
and subject to the terms and provisions Regency Bancorp's stock option plan
pursuant to which such grants are effected. Any such grants shall be evidenced
by a stock option agreement entered into between Regency Bancorp and Employee
pursuant to such stock option plan and a copy of each such stock option
agreement shall be attached to this Agreement as an exhibit. Notwithstanding
any provision of any such stock option plan or any such stock option agreement
to the contrary, no rights of employment shall be conferred upon Employee or
result from any such stock option plan or any stock option agreement entered
into between Regency Bancorp and Employee. Any employment rights and
corresponding duties of Employee pursuant to his employment by
43
<PAGE>
Employer shall be limited to and interpreted solely in accordance with the terms
and provisions of this Agreement.
XIII. OTHER BENEFITS. Employee shall be entitled to those employee
benefits adopted by Employer for all employees of Employer, subject to
applicable qualification requirements and regulatory approval requirements,
if any. Employee shall be further entitled to the following additional
benefits which shall supplement or replace, to the extent duplicative of any
part or all of the general employee benefits, the benefits otherwise provided
to Employee:
A. VACATION. Employee shall be entitled to twenty-one (21) days
annual vacation leave at his then existing rate of base salary each year during
the term of this Agreement. Employee may be absent from his employment for
vacation as long as such leave is reasonable and does not jeopardize his
responsibilities and duties specified in this Agreement. The length of vacation
should not exceed two (2) weeks without the approval of the Chief Executive
Officer of Regency Bancorp and Regency Bank. Accrual of vacation time, if any,
shall be determined in accordance with Employer's personnel policies.
B. AUTOMOBILE ALLOWANCE AND INSURANCE. Employer shall pay to
Employee an automobile allowance of Four Thousand Two Hundred Dollars
($4,200.00) per year during the term of this Agreement, payable at the rate of
Three Hundred Fifty Dollars ($350.00) per month. Employee shall acquire or
otherwise make available for his business and personal use an automobile,
suitable to his position, and (i) maintain it in good condition and repair; (ii)
maintain public liability insurance and property damage insurance policies with
insurer(s) acceptable to Employer and such coverages in such amounts as may be
acceptable to Employer from time to time; and (iii) such policies shall name
Employer as an additional insured, subject to the requirement that Employee's
allowance described above shall be increased in an amount equal to the
additional premium expense, if any, resulting from Employer being named as an
additional insured. Employer may, in its sole discretion, elect to provide and
pay for such insurance policies in lieu of Employee maintaining such policies.
XIV. ANNUAL PHYSICAL EXAMINATION. Employer shall pay or reimburse
Employee for the cost of an annual physical examination conducted by a
California licensed physician selected by Employee and reasonably acceptable
to Employer.
XV. BUSINESS EXPENSES. Employee shall be reimbursed for all ordinary
and necessary expenses incurred by Employee in connection with his
employment. Employee shall also be reimbursed for reasonable expenses
incurred in activities associated with promoting the business of Employer,
including expenses for entertainment, travel, conventions, educational
programs, club memberships and similar items. Employer will pay for or will
reimburse Employee for such expenses upon presentation by Employee from time
to time of receipts or other appropriate evidence of such expenditures.
XVI. TERMINATION OF AGREEMENT.
A. AUTOMATIC TERMINATION. This Agreement shall terminate
automatically without further act of the parties and immediately upon the
occurrence of any one of the
44
<PAGE>
following events, subject to either party's right, without any obligation
whatsoever, to waive an event reasonably susceptible of waiver, and the
obligation of Employer to pay the amounts which would otherwise be payable to
Employee under this Agreement through the end of the month in which the event
occurs, except that only in the event of termination based upon subparagraphs
(1), (4) or (12, to the extent of Employer's breach) below shall Employee be
entitled to receive severance payments based upon automatic termination pursuant
to paragraph 16 (d) of this Agreement:
1. The occurrence of circumstances that make it impossible or
impractical for Employer, Regency Bancorp and Regency Bank
to conduct or continue their business.
2. The death of Employee.
3. The loss by Employee of legal capacity.
4. The loss by Employer, Regency Bancorp and Regency Bank of
legal capacity to contract.
5. The willful, intentional and material breach of duty by
Employee in the course of his employment.
6. The habitual and continued neglect by Employee of his
employment duties and obligations under this Agreement.
7. The continuous mental or physical incapacity of Employee,
subject to Employee's rights under paragraph 10 of this
Agreement.
8. Employee's willful and intentional violation of any State of
California or federal banking laws, or of the Bylaws, rules,
policies or resolutions of Employer, Regency Bancorp or
Regency Bank or of the rules or regulations of the
California Superintendent of Banks or the Federal Deposit
Insurance Corporation, or other regulatory agency or
governmental authority having jurisdiction over Employer,
Regency Bancorp, Regency Bank or their respective
subsidiaries.
9. The determination by a state or federal banking agency or
governmental authority having jurisdiction over Employer,
Regency Bancorp, Regency Bank or their respective
subsidiaries that Employee is not suitable to act in the
capacity for which he is employed by Employer.
10. Employee is convicted of any felony or a crime involving
moral turpitude or commits a fraudulent or dishonest act.
45
<PAGE>
11. Employee discloses without authority any secret or
confidential information concerning Employer, Regency
Bancorp, Regency Bank or their respective subsidiaries or
takes any action which Employer's Board of Directors
determines, in its sole discretion and subject to good
faith, fair dealing and reasonableness, constitutes unfair
competition with or induces any customer to breach any
contract with Employer, Regency Bancorp, Regency Bank or
their respective subsidiaries.
12. Either party breaches the terms or provisions of this
Agreement.
B. TERMINATION BY EMPLOYER. Employer may, at its election and in
its sole discretion, terminate this Agreement for any reason, or for no reason,
by giving not less than thirty (30) days' prior written notice of termination to
Employee, without prejudice to any other remedy to which Employer may be
entitled either at law, in equity or under this Agreement. Upon such
termination, Employee shall be entitled to receive any employment benefits which
shall have accrued prior to such termination and the severance pay specified in
paragraph 16 (d) below.
C. TERMINATION BY EMPLOYEE. This Agreement may be terminated by
Employee for any reason, or no reason, by giving not less than thirty (30) days'
prior written notice of termination to Employer. Upon such termination, all
rights and obligations accruing to Employee under this Agreement shall cease,
except that such termination shall not prejudice Employee's rights regarding
employment benefits which shall have accrued prior to such termination and any
other remedy which Employee may have at law, in equity or under this Agreement,
which remedy accrued prior to such termination.
D. SEVERANCE PAY - TERMINATION BY EMPLOYER. In the event of
termination by Employer pursuant to paragraph 16 (b) or automatic termination
based upon paragraph 16 (a) (1), (4) or (12, to the extent of Employer's breach)
of this Agreement, Employee shall be entitled to receive severance pay at
Employee's rate of salary immediately preceding such termination equal to six
(6) months' salary (in addition to incentive compensation or bonus payments due
Employee, if any) payable in twelve (12) substantially equal installments on the
fifteenth and last day of each month following such termination.
Notwithstanding the foregoing, in the event of a "change in control" as defined
in subparagraph (e) below, Employee shall not be entitled to severance pay
pursuant to this subparagraph (d) and any rights of Employee to severance pay
shall be limited to such rights as are specified in subparagraph (e) below.
Employee acknowledges and agrees that severance pay pursuant to this
subparagraph (d) is in lieu of all damages, payments and liabilities on account
of the early termination of this Agreement and the sole and exclusive remedy for
Employee terminated at the will of Employer pursuant to paragraph 16(b) or
pursuant to certain provisions of paragraph 16 (a) described herein.
E. SEVERANCE PAY - CHANGE IN CONTROL. In the event of a "change in
control" as defined herein and within a period of one (1) year following
consummation of such a change in control (i) Employee's employment is
terminated; or (ii) without Employee's
46
<PAGE>
consent there occurs (A) any adverse change in the nature and scope of
Employee's position, responsibilities, duties, salary, benefits or location of
employment, or (B) any event which reasonably constitutes a demotion,
significant diminution or constructive termination (by resignation or otherwise)
of Employee's employment, then Employee shall be entitled to receive severance
pay in addition to any bonus or incentive compensation payments due Employee.
Any such severance pay due Employee shall be in an amount equal to one (1) times
Employee's average annual compensation for the five (5) years immediately
preceding the change in control. Employee's average annual compensation shall
be the average of the aggregate compensation paid by Employer to Employee which
was includable in Employee's gross income for federal income tax purposes for
the five (5) tax years ending immediately prior to the change in control divided
by the number five (5) or the number less than five which reflects the number of
years of employment prior to termination or the occurrence of an event described
above in this paragraph 16 (e) (ii).
If all or any portion of the amounts payable to Employee pursuant to this
paragraph 16 (e) alone or together with other payments which Employee has the
right to receive from Employer, constitute "excess parachute payments" within
the meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), that are subject to the excise tax imposed by Section 4999 of the
Code (or similar tax and/or assessment), such amounts payable hereunder shall be
reduced to the extent necessary, after first applying any similar reduction in
payments to be received from any other plan or program sponsored by Employer
from which Employee has a right to receive payments subject to Sections 280G and
4999 of the Code, including without limitation any Salary Continuation Agreement
made between Employer and Employee, so as to cause a reduction of any excise tax
pursuant to Section 4999 of the Code to equal "zero".
Any such severance shall be payable in twenty-four (24) substantially equal
installments on the fifteenth and last day of each month following such
termination or an event described in paragraph 16 (e) (ii) of this Agreement.
Such severance payment, if any, shall be in lieu of all damages, payments and
liabilities on account of the events described above for which such severance
payment, if any, may be due Employee and any severance payment rights of
Employee under paragraph 16 (d) of this Agreement. This subparagraph (e) shall
be binding upon and inure to the benefit of the parties and any successors or
assigns or employer or any "person" as defined herein.
Notwithstanding the foregoing, Employee shall not be entitled to receive
nor shall Employer, its successors, assigns or any "person" as defined herein be
obligated to pay severance payments pursuant to this subparagraph (e) in the
event of an occurrence described in paragraph 16, subparagraphs (5), (6), (8),
(10), (11) or (12, to the extent of an Employee breach), or in the event of a
determination pursuant to subparagraph (9) thereof, or in the event Employee
terminates employment in accordance with paragraph 16 (c) and the termination is
not a result of or based upon the occurrence of any event described in paragraph
16 (e) (ii).
A "change in control" of Employer for purposes of this Agreement and
subparagraph (e) shall mean the occurrence of any of the following events with
respect to Employer (with
47
<PAGE>
the term "Employer" being defined for such a change in control to include
Regency Bancorp and Regency Bank), but specifically excluding from a "change in
control" any of the following events in which an employee stock ownership plan
sponsored by Regency Bancorp is involved as a party or participant in acquiring
"control" or in a transaction or series of transactions resulting in such a
"change in control": (i) a change in control of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or in response to any other form or report to the regulatory agencies or
governmental authorities having jurisdiction over Employer or any stock exchange
on which Employer's shares are listed which requires the reporting of a change
in control; (ii) any merger, consolidation or reorganization of Employer in
which Employer does not survive; (iii) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one transaction or a series of
transactions) of any assets of Employer having an aggregate fair market value of
fifty percent (50%) of the total value of the assets of Employer, reflected in
the most recent balance sheet of Employer; (iv) a transaction whereby any
"person" (as such term is used in the Exchange Act or any individual,
corporation, partnership, trust or any other entity) is or becomes the
beneficial owner, directly or indirectly, of securities of Employer representing
25% or more of the combined voting power of Employer's then outstanding
securities; (v) if in any one year period, individuals who at the beginning of
such period constitute the Board of Directors of Employer cease for any reason
to constitute at least a majority thereof, unless the election, or the
nomination for election by Employer's shareholders, of each new director is
approved by a vote of a least three-quarters of the directors then still in
office who were directors at the beginning of the period; (iv) a majority of the
members of the Board of Directors of Employer in office prior to the happening
of any event determines in its sole discretion that as a result of such event
there has been a change in control.
XVII. NOTICES. Any notices to be given hereunder by either party to the
other shall be in writing and may be transmitted by personal delivery or by U.S.
mail, registered or certified, postage prepaid with return receipt requested.
Mailed notices shall be addressed to the parties at the addresses listed as
follows:
Employer: Principal place of business
Employee: Principal place of business as shown in Employer's Personnel
Records and Employee's personal file.
Each party may change the address for receipt of notices by written notice in
accordance with this paragraph 17. Notices delivered personally shall be deemed
communicated as of the date of actual receipt; mailed notices shall be deemed
communicated as of three (3) days after the date of mailing.
XVIII. ARBITRATION. All claims, disputes and other matters in question
arising out of or relating to this Agreement or the breach or interpretation
thereof, other than those matters which are to be determined by the Employer in
its sole and absolute discretion, shall be resolved by binding arbitration
before a representative member, selected by the mutual agreement of the parties,
of the Judicial Arbitration and Mediation Services, Inc. ("JAMS"),
48
<PAGE>
presently located at 111 Pine Street, Suite 710, in San Francisco, California,
in accordance with the rules and procedures of JAMS then in effect. In the
event JAMS is unable or unwilling to conduct such arbitration, or has
discontinued its business, the parties agree that a representative member,
selected by the mutual agreement of the parties, of the American Arbitration
Association ("AAA"), presently located at 417 Montgomery Street, in San
Francisco, California, shall conduct such binding arbitration in accordance with
the rules and procedures of the AAA then in effect. Notice of the demand for
arbitration shall be filed in writing with the other party to this Agreement and
with JAMS (or AAA, if necessary). In no event shall the demand for arbitration
be made after the date when institution of legal or equitable proceedings based
on such claim, dispute or other matter in question would be barred by the
applicable statute of limitations. Any award rendered by JAMS or AAA shall be
final and binding upon the parties, and as applicable, their respective heirs,
beneficiaries, legal representatives, agents, successors and assigns, and may be
entered in any court having jurisdiction thereof. The obligation of the parties
to arbitrate pursuant to this clause shall be specifically enforceable in
accordance with, and shall be conducted consistently with, the provisions of
Title 9 of Part 3 of the California Code of Civil Procedure. Any arbitration
hereunder shall be conducted in Fresno, California, unless otherwise agreed to
by the parties.
XIX. ATTORNEYS' FEES AND COSTS. In the event of litigation,
arbitration or any other action or proceeding between the parties to
interpret or enforce this Agreement or any part thereof or otherwise arising
out of or relating to this Agreement, the prevailing party shall be entitled
to recover its costs related to any such action or proceeding and its
reasonable fees of attorneys, accountants and expert witnesses incurred by
such party in connection with any such action or proceeding. The prevailing
party shall be deemed to be the party which obtains substantially the relief
sought by final resolution, compromise or settlement, or as may otherwise be
determined by order of a court of competent jurisdiction in the event of
litigation, an award or decision of one or more arbitrators in the event of
arbitration, or a decision of a comparable official in the event of any other
action or proceeding. Every obligation to indemnify under this Agreement
includes the obligation to pay reasonable fees of attorneys, accountants and
expert witnesses incurred by the indemnified party in connection with matters
subject to indemnification.
XX. ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with respect to the
employment of Employee by Employer and contains all of the covenants and
agreements between the parties with respect to the employment of Employee by
Employer. Each party to this Agreement acknowledges that no other
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
set forth herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding on either party.
XXI. MODIFICATIONS. Any modification of this Agreement will be effective
only if it is in writing and signed by a party or its authorized representative.
XXII. WAIVER. The failure of either party to insist on strict compliance
with any of the terms, provisions, covenants, or conditions of this Agreement by
the other party shall not
49
<PAGE>
be deemed a waiver of any term, provision, covenant, or condition, individually
or in the aggregate, unless such waiver is in writing, nor shall any waiver or
relinquishment of any right or power at any one time or times be deemed a waiver
or relinquishment of that right or power for all or any other times.
XXIII. PARTIAL INVALIDITY. If any provision in this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force and effect
without being impaired or invalidated in any way.
XXIV. INTERPRETATION. This Agreement shall be construed without regard to
the party responsible for the preparation of the Agreement and shall be deemed
to have been prepared jointly by the parties. Any ambiguity or uncertainty
existing in this Agreement shall not be interpreted against either party, but
according to the application of other rules of contract interpretation, if an
ambiguity or uncertainty exists.
XXV. GOVERNING LAW AND VENUE. The laws of the State of California, other
than those laws denominated choice of law rules, shall govern the validity,
construction and effect of this Agreement. Any action which in any way involves
the rights, duties and obligations of the parties hereunder shall be brought in
the courts of the State of California and venue for any action or proceeding
shall be in Fresno County or in the United States District Court for the Eastern
District of California, and the parties hereby submit to the personal
jurisdiction of said courts.
XXVI. PAYMENTS DUE DECEASED EMPLOYEE. If Employee dies prior to the
expiration of the term of his employment, any payments that may be due Employee
from Employer under this Agreement as of the date of death shall be paid to
Employee's executors, administrators, heirs, personal representatives,
successors, or assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement consisting of
twelve pages in the City of Fresno, County of Fresno, State of California as of
the date set forth above.
EMPLOYER: EMPLOYEE:
REGENCY INVESTMENT ADVISORS
INCORPORATED
By:__________________________ ___________________________
Steven F. Hertel Alan R. Graas
President
[ADD NOTARIAL ACKNOWLEDGEMENT]
50
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