Exhibit 10.5
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 Bank,
FSB, a federal savings bank, with its headquarters office located
in the City of Irvine, Orange County, California (the
“Bank”), and Stephen H. Gordon , a California
resident (the “Employee”). References herein to
“Holding Company” are references to Commercial Capital
Bancorp, Inc.
A. On September 13, 2001
, the Bank and Employee entered into an employment
agreement.
B. The Bank now desires to enter
into this Agreement with Employee pursuant to which Employee would
continue to be employed by the Bank as the Chairman of the Board
and Chief Executive Officer of the Bank, 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 Bank agrees to employ Employee, and Employee agrees to be
employed by the Bank, 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 thereof. In the event the
Bank 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 necessary
time, ability and attention to the business and affairs of the
Bank. 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 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 Bank, 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 Bank’s interests and to serve as
the Chairman of the Board and Chief Executive Officer of the
Bank. Employee shall perform such customary, appropriate and
reasonable executive duties as are normally assigned to a person
with such position at other banks, including such duties as are
delegated to him from time to time by the Board of Directors.
Employee shall report directly to the Bank’s Board of
Directors. The Bank shall also cause the Employee to be nominated
and management proxies will be voted to elect Employee as a
director of both the Bank and Holding Company during the entire
Employment Period.
3. Bank’s Authority .
Employee agrees to observe and comply with the Bank’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 Bank agrees to pay to
Employee during each year of this Agreement an annual base salary
of $925,750, beginning on the date first set forth above and
payable in accordance with the Bank’s standard bi-weekly
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, on or before January 31st 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, if
recommended to the Holding Company, to receive from the Holding
Company stock options and restricted stock awards, in either case,
in such amount as, in such a manner as, and at such time as, the
Board of Directors or a duly authorized committee thereof, in its
discretion, determines is appropriate.
(c) 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 Bank or
the Holding Company, 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
Bank or the Holding Company’s plans or program.
(e) The Bank agrees to 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 Bank.
5. Reimbursement of Expenses
. The services required by the Bank will require Employee to incur
business, entertainment and community relations’ expenses and
the Bank hereby agrees to provide credit cards and charge accounts
for Employee’s use for such expenses. The Bank agrees to
reimburse Employee for all out-of-pocket expenses that are business
related, upon submission of appropriate documentation and approval
by the Board of Directors or a committee
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thereof. Such expenses may include
membership fees and dues to organizations approved by the Board of
Directors or a committee thereof. Each expense, to be reimbursed,
must be of a nature qualifying it as a proper deduction on the
income tax returns of the Bank as a business expense and not as
deductible compensation to Employee. The records and other
documentary evidence submitted by Employee to the Bank 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 Bank and not as
deductible compensation to Employee.
6. Confidential Information .
Employee agrees that he shall not, without the prior written
permission of the Bank 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 Bank, 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 Bank. Employee agrees to execute any and all
such additional agreements and instruments that the Bank 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 Bank. 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 Bank, he will not solicit, directly or
indirectly, divert or attempt to divert for himself or for any
third party, the banking business of any customer with whom the
Bank had done business during the preceding one year period.
Employee recognizes and acknowledges that any customer list and
financial information concerning any of the Bank’s customers,
as it may exist from time to time, is a valuable, special and
unique asset of the Bank’s business. Employee further agrees
not to solicit or hire, directly or indirectly, divert or attempt
to divert for himself or for any third party, the services of any
officer or employee of the Bank during such 18-month period.
Employee agrees to execute any and all such additional agreements
and instruments that the Bank 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 Bank 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 Bank 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.
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(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 Bank or
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(b) below; or (ii) Employee’s termination
with good reason from the Bank’s employ in accordance with
Section 9(c) below upon any (A) failure to elect or
reelect or to appoint or reappoint Employee to the positions he has
been appointed to pursuant to Section 2, unless consented to
by Employee, (B) a material change in Employee’s
function, duties, or responsibilities with the Bank, 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 Bank or Holding Company, or (F) breach of this Agreement
by the Bank.
(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 Bank 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 the
Bank’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 Bank, the Bank shall pay to Employee an
amount equal to the greater of: (1) his base salary for the
remaining portion of the Term; or (2) three (3) times
Employees highest annual compensation for the last five
(5) years (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). Such annual compensation shall include base salary,
commissions, bonuses, contributions or accruals on behalf of
Employee to any pension and profit sharing plans, including any
non-qualified, deferred compensation or salary continuation plans,
any benefits to be paid or received under any stock-based benefit
plan, severance payments, directors or committee fees and value of
fringe benefits paid or to be paid to the Employee during such
years. 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 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 reimbursable expenses. Notwithstanding
anything in this Agreement to the contrary, no bonus shall be
deemed to have been accrued unless and until any such bonus has
been duly authorized by the Bank’s Board of Directors or a
duly authorized committee thereof. Accrued bonuses shall mean the
bonus amount(s) determined in accordance with Section 4(b)
hereof.
(e) With respect to any stock
options issued to the Employee that were outstanding on the Date of
Termination, any options which were not exercisable on the Date
of
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Termination shall automatically
become exercisable upon the Date of Termination, and shall remain
exercisable in full for a period of thirty
(30) days.
(f) Upon the occurrence of an Event
of Termination, the Bank will cause to be continued for the
Employee and his previously covered dependents life, medical,
dental and disability coverage that the Employee agrees is
substantially equivalent to the coverage
