Exhibit 10.4
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of
December 19, 2005 by and between Commercial Capital Bancorp
(the “Holding Company”), a corporation organized under
the laws of the State of Nevada, with its headquarters office
located in the City of Irvine, Orange County, California, and
Robert O. Williams , a California resident (the
“Employee”). References herein to “Bank”
are references to Commercial Capital Bank, FSB. References herein
to “Bank Employment Agreement” are references to the
amended and restated employment agreement entered into between the
Bank and the Employee dated December 19, 2005.
A. On January 1, 2001 ,
the Holding Company and Employee entered into an employment
agreement.
B. The Holding Company now desires
to enter into this Agreement with Employee pursuant to which
Employee would continue to be employed as the Executive Vice
President of the Holding Company, henceforth on the terms and
subject to the conditions set forth herein, and Employee desires to
be so employed.
On the basis of the foregoing facts,
for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and in further consideration of the
mutual covenants and agreements contained herein, the parties agree
as follows:
1. Term .
(a) Subject to the provisions below,
the Holding Company agrees to employ Employee, and Employee agrees
to be employed by the Holding Company, subject to the terms and
conditions of this Agreement, for a term of three (3) years
(“the Term”) unless employment is earlier terminated
pursuant to the termination provisions of this Agreement,
commencing on the date first set forth above (the “Employment
Period”).
(b) Subject to the notice provisions
of this paragraph, on the first annual anniversary of the date
first above written and each annual anniversary thereafter, the
Term of this Agreement may be renewed or extended for one
(1) additional year after review and approval by the Board of
Directors or a duly authorized committee. In the event that the
Holding Company or the Employee gives written notice to the other
party or parties hereto of such party’s or parties’
election not to extend the Term, with such notice to be given not
less than ninety (90) days prior to any such anniversary date,
then this Agreement shall terminate at the conclusion of its
remaining Term.
(c) References herein to the Term of
this Agreement and/or the Employment Period shall refer both to the
initial Term and successive Terms.
2. Duties and Authority .
During the Employment Period, Employee shall devote all his
productive time, ability and attention to the business and affairs
of the Holding Company and its subsidiaries. Employee shall not
directly render service of a business, commercial or professional
nature to any other person or organization other than the Holding
Company and its subsidiaries without the consent of the Board of
Directors. However, nothing in this paragraph prohibits Employee
from, or requires the Board of Directors to approve or consent to
Employee
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serving as an advisor or Board
member of a charitable or nonprofit organization or serving as an
advisor or director of any corporation which does not compete with
the business of the Holding Company, so long as such service does
not materially interfere with the performance of employment duties.
Employee agrees that during the Employment Period, he will use his
best efforts, skill and abilities to promote the Holding
Company’s interests and to serve as the Executive Vice
President of the Holding Company. Employee shall perform such
customary, appropriate and reasonable executive duties as are
normally assigned to such position at other thrift holding
companies, including such duties as are delegated to him from time
to time by the Board of Directors. Employee shall report directly
to the Holding Company’s Chairman and Chief Executive
Officer.
3. Holding Company’s
Authority . Employee agrees to observe and comply with the
Holding Company’s policies and procedures as adopted by the
Board of Directors regarding performance of his duties and to carry
out and to perform orders, directions and policies stated by the
Board of Directors to him periodically, either orally or in
writing.
4. Compensation .
(a) The Holding Company, through the
Bank, agrees to pay to Employee during each year of this Agreement
an annual base salary of $280,990, beginning on the date first set
forth above and payable in accordance with the Bank’s
standard biweekly payroll policy and subject to such withholding as
required by law or policy. The base salary shall be reviewed
annually by the Bank’s Board of Directors or a duly
authorized committee thereof, on or before January 31 of each
year for that year, and may be changed by mutual agreement of the
parties.
(b) The Employee will become
eligible to receive from the Bank a bonus or bonuses, and to
receive from the Holding Company stock options and restricted stock
awards, in each case, in such amount as, in such a manner as, and
at such time as, the Board of Directors of the Holding Company or
the Bank or a duly authorized committee thereof, as the case may
be, in its discretion, determines is appropriate.
(c) The Holding Company, through the
Bank, shall provide a car allowance of $1,000 per month during the
Employment Period.
(d) During the Employment Period,
Employee shall be eligible to participate in any retirement,
pension or profit-sharing plan, including any non-qualified,
deferred compensation or salary continuation plan, or similar
employee benefit plan or retirement or bonus program of the Holding
Company and its subsidiaries, to the extent that he is eligible
under the provisions of the plan and commensurate with his position
in relationship to other participants and pursuant to the terms of
the plans or programs of the Holding Company and its
subsidiaries.
(e) The Holding Company, through the
Bank, shall provide medical, dental and other insurance, including
key man life and disability, for Employee on the same terms as
provided for all executive officers of the Holding Company and its
subsidiaries.
(f) Notwithstanding any provision
herein to the contrary, to the extent that payments and benefits,
as provided by this Agreement, including, without limitation, base
salary and other employee benefits paid and provided hereunder
pursuant to this Section 4, the Severance Payment paid and
provided hereunder pursuant to Section 9, death benefits
provided hereunder
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pursuant to Section 11, sums
owed in respect of accrued bonus, if any, and reimbursable
expenses, are paid to or received by Employee under the Bank
Employment Agreement, all such payments and benefits, to the extent
paid by the Bank, will be subtracted from any amount due
simultaneously to Employee under similar provisions of this
Agreement.
5. Reimbursement of Expenses
. The services required by the Holding Company and its subsidiaries
will require Employee to incur business, entertainment and
community relations expenses and the Holding Company or its
subsidiaries hereby agrees to provide credit cards and charge
accounts for Employee’s use for such expenses. The Holding
Company or its subsidiaries agrees to reimburse Employee for all
out-of-pocket expenses, which are business related, upon submission
of appropriate documentation and approval by the Chairman and Chief
Executive Officer of the Holding Company. Such expenses may include
membership fees and dues to organizations approved by the Chairman
of the Board and Chief Executive Officer. Each expense, to be
reimbursed, must be of a nature qualifying it as a proper deduction
on the income tax returns of the Holding Company as a business
expense and not as deductible compensation to Employee. The records
and other documentary evidence submitted by Employee to the Holding
Company or its subsidiaries with each request for reimbursement of
such expenses shall be in the form required by applicable statutes
and regulations issued by appropriate taxing authorities for the
substantiation of such expenditures as deductible business expenses
of the Holding Company and not as deductible compensation to
Employee.
6. Confidential Information .
Employee agrees that he shall not, without the prior written
permission of the Holding Company in each case, publish, disclose
or make available to any other person, firm or corporation, either
during or after the termination of this Agreement, any confidential
information which Employee may obtain during the Employment Period,
or which Employee may create prior to the end of the Employment
Period relating to the business of the Holding Company and its
subsidiaries, or to the business of any customer or supplier of any
of them; provided, however, Employee may use such information
during the Employment Period for the benefit of the Holding Company
and its subsidiaries. Employee agrees to execute any and all such
additional agreements and instruments that the Holding Company may
deem reasonably necessary in order to protect the confidentiality
of such confidential information or otherwise to effectuate the
purpose and intent of this Section 6. Prior to or at the
termination of this Agreement, Employee shall return all documents,
files, notes, writings and other tangible evidence of such
confidential information to the Holding Company and its
subsidiaries. This Section 6 shall survive the expiration or
termination of this Agreement.
7. Covenant Not to Solicit
Customers or Fellow Employees . Employee agrees that for a
period of eighteen (18) months following the termination of
employment with the Holding Company, he will not solicit, directly
or indirectly, divert or attempt to divert for himself or for any
third party, the business of any customer with whom the Holding
Company and its subsidiaries had done business during the preceding
one year period. Employee recognizes and acknowledges that any
customer list and financial information concerning any of the
Holding Company’s customers, as it may exist from time to
time, is a valuable, special and unique asset of the Holding
Company’s business. Employee further agrees not to solicit or
employ, directly or indirectly, divert or attempt to divert for
himself or for any third party, the services of any officer or
employee of the Holding Company and its subsidiaries during such
18-month period. Employee agrees to execute any and all such
additional agreements and instruments that the Holding
Company
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may deem reasonably necessary in
order to effectuate the purpose and intent of this Section 7.
This Section 7 shall survive the expiration or termination of
this Agreement.
8. Remedy . Employee
understands that, because of the unique character of the services
to be rendered by Employee hereunder, the Holding Company would not
have any adequate remedy at law for the breach or threatened breach
by Employee of any one or more of the covenants set forth in this
Agreement and therefore expressly agrees that the Holding Company
in addition to any other rights or remedies which may be available
to it, shall be entitled to injunctive and other equitable relief
to prevent or remedy a breach of this Agreement by
Employee.
9. Termination of Employee
Without Cause .
(a) Upon the occurrence of an Event
of Termination (as herein defined) during Employee’s Term of
employment under this Agreement, the provisions of this Section
shall apply.
(b) As used in this Agreement, an
“Event of Termination” shall mean and include any one
or more of the following: (i) the termination by the Holding
Company of Employee’s full-time employment hereunder for any
reason other than a termination governed by Section 12 below,
or Termination for Cause, as defined in Section 10 below;
(ii) Employee’s termination with good reason from the
Holding Company’s employ in accordance with Section 9(c)
below upon any (A) failure to elect or reelect or to appoint
or reappoint Employee as Executive Vice President, unless consented
to by the Employee, (B) a material change in Employee’s
function, duties, or responsibilities with the Holding Company or
its subsidiaries, which change would cause Employee’s
position to become one of substantially lesser responsibility,
importance, or scope from the position and attributes thereof
described in Section 2 above, unless consented to by Employee,
(C) a relocation of Employee’s principal place of
employment by more than 30 driving miles from its location at the
effective date of this Agreement, unless consented to by the
Employee, (D) a material reduction in the benefits and
perquisites to Employee from those being provided as of the
effective date of this Agreement, unless consented to by Employee,
(E) a liquidation or dissolution of the Holding Company or its
subsidiaries, or (F) breach of this Agreement by the Holding
Company.
(c) Upon the occurrence of any event
of a type described in clauses (ii)(A), (B), (C), (D), (E) or
(F), of Section 9(b), Employee shall have the right to
terminate with good reason his employment under this Agreement by
delivering written notice to the Holding Company not less than
sixty (60) days following the occurrence of such event, which
termination with good reason shall be effective only if such event
shall not be cured within thirty (30) days after Holding
Company’s receipt of such notice. The date of any Event of
Termination shall be referred to herein as the “Date of
Termination.”
(d) Upon the occurrence of an Event
of Termination by the Holding Company, the Holding Company, through
the Bank, shall pay to Employee an amount equal to his base salary
for the remaining portion of the Term (such payment, the
“Severance Payment”), as severance pay in lieu of and
in substitution for any other claims for salary and continued
benefits hereunder (based on Employee’s base salary and
benefits prevailing at the time of termination). At the election of
the Employee, the Severance Payment shall be made to Employee:
(i) in a lump sum on the Date of Termination, or (ii) on
a bi-weekly basis in approximately equal installments over
a
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period ending not later than the
date that is 2-1/2 months following the last day of the calendar
year in which the Date of Termination occurs. Payment of the
Severance Payment shall be in addition to all other sums owed to
Employee under applicable law for all periods prior to the Date of
Termination, including, without limitation, sums owed in respect of
accrued bonus, if any, and reimbursabl
