EXHIBIT 10.19
EMPLOYMENT
AGREEMENT
This Employment Agreement is made
and entered into as of October 31, 2006 by and between First
Bank of Beverly Hills, a California chartered bank (the “
Bank ”), and Eric Rosa (“ Executive
”).
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1.
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Engagement
and Responsibilities
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1.1 Upon the terms and subject to
the conditions set forth in this Agreement, the Bank hereby engages
and employs Executive as an officer of the Bank, with the title
“Executive Vice President,” as of the Employment
Commencement Date. Executive hereby accepts such engagement and
employment as of the Employment Commencement Date.
1.2 Executive’s duties and
responsibilities shall be to head the loan department of the Bank
and those duties that are normally and customarily vested in such
position. Executive’s duties shall also include those duties
and services for the Bank and its affiliates as the Chief Executive
Officer or Board shall in his or its discretion from time to time
reasonably direct which are not inconsistent with Executive’s
position as head of the loan department.
1.3 During the Employment Term,
Executive agrees to devote all of Executive’s business time,
energy and efforts to the business of the Bank and will use
Executive’s best efforts and abilities faithfully and
diligently to promote the Bank’s business interests. For so
long as Executive is employed by the Bank, Executive shall not,
directly or indirectly, either as an employee, employer,
consultant, agent, investor, principal, partner, stockholder
(except as the holder of less than 1% of the issued and outstanding
stock of a publicly held corporation), corporate officer or
director, or in any other individual or representative capacity,
engage or participate in any business that is in competition in any
manner whatsoever with the business of the Bank Group, as such
businesses are now or hereafter conducted. Subject to the foregoing
prohibition and provided such services or investments do not
violate any applicable law, regulation or order, or interfere in
any way with the faithful and diligent performance by Executive of
the services to the Bank otherwise required or contemplated by this
Agreement, the Bank expressly acknowledges that Executive
may:
1.3.1 make and manage personal
business investments of Executive’s choice without consulting
the Board; and
1.3.2 serve in any capacity with any
non-profit civic, educational or charitable organization without
consulting with the Board.
1.4 Covenants of
Executive
1.4.1 Best Efforts; Exclusive
Duty . Executive shall use his best efforts and skills in the
business and interests of the Bank, do his utmost to enhance and
develop the interests and welfare of the Bank, and devote
substantially all of his professional time and attention to the
Bank’s business.
1.4.2 Rules and Regulations .
Executive shall obey all rules, regulations and special
instructions of the Bank and all other rules, regulations, guides,
handbooks, procedures, policies and special instructions applicable
to the Bank’s business in connection with his duties
hereunder and shall endeavor to improve his ability and knowledge
of the Bank’s business in an effort to increase the value of
his services for the mutual benefit of the Bank and
Executive.
1.4.3 Compliance . Executive
shall use his best efforts and skills to cause the Bank to comply
with all of its contractual obligations and commitments and
applicable laws, rules and regulations.
2.1 “ Bank Group
” as of any date shall mean the Bank and each corporation or
other entity controlled by, controlling or under common control
with the Bank as of such date. As of the date of this Agreement,
the Bank Group includes the Bank, Beverly Hills Bancorp Inc. and
all subsidiaries of Beverly Hills Bancorp Inc.
2.2 “ Board ”
shall mean the Board of Directors of the Bank; to the extent that
functions of the Board under or in connection with this Agreement
have been delegated to a compensation or other Board committee,
references in this Agreement to the Board shall refer to such
compensation or other committee.
2.3 “ Change of Control
Plan ” shall mean the Change of Control Plan entered in
on or about the same date as this Agreement between the Bank and
Executive.
2.4 “ Employment
Commencement Date ” shall mean the date Executive
commences employment with the Bank.
2.5 “ Employment Term
” shall mean the period commencing the Employment
Commencement Date and ending upon the date of termination of
Executive’s employment with the Bank.
2.6 “ For Cause ”
shall mean, in the context of a basis for termination of
Executive’s employment with the Bank, that:
2.6.1 Executive breaches any
obligation, duty or agreement under this Agreement, which breach is
not cured or corrected within 15 days of written notice
thereof from the Bank (except for breaches of Sections 1.3, 6
and 7 of this Agreement, which cannot be cured and for which the
Bank need not give any opportunity to cure); or
2.6.2 Executive commits any act of
personal dishonesty, fraud, breach of fiduciary duty or trust;
or
2.6.3 Executive is convicted of, or
pleads guilty or nolo contendere with respect to, theft, fraud, a
crime involving moral turpitude, or a felony under federal or
applicable state law; or
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2.6.4 Executive commits any act of
personal conduct that, in the reasonable opinion of the Board,
gives rise to a material risk of liability under federal or
applicable state law for discrimination or sexual or other forms of
harassment or other similar liabilities to subordinate employees;
or
2.6.5 Executive commits continued
and repeated substantive violations of specific written directions
of the Board of Chief Executive Officer, which directions are
consistent with this Agreement and Executive’s positions with
the Bank or continued and repeated substantive failure to perform
duties assigned by or pursuant to this Agreement; provided that no
discharge shall be deemed for Cause under this
subsection 2.6.5 unless Executive first receives written
notice from the Bank advising him of the specific acts or omissions
alleged to constitute violations of written directions or a
material failure to perform his duties, and such violations or
material failure continue after he shall have had a reasonable
opportunity to correct the acts or omissions so complained of;
or
2.6.6 Executive commits any act, or
fails to commit any act, that, in the reasonable opinion of the
Board, gives rise to a material risk of material liability under
federal or state banking or lending laws (the type of liability
that could result in a cease and desist order, civil monetary
penalty, consent decree, memorandum of agreement or similar
regulatory action) or could adversely affect the Bank’s CAMEL
rating or could otherwise materially and adversely impact the
Bank’s relationship with its regulators; provided that
the Board may not terminate Executive for Cause under this
Section 2.6.6 unless the Board: (a) gives Executive
notice of its intent to terminate Executive under this Section and
provides Executive an opportunity to appear before the Board to
explain his conduct, and (b) if such action (or failure to
act) is capable of being cured or corrected by Executive (and was
not a fraudulent act by Executive) in a manner that could mitigate
material risk of liability, the Board gives Executive the
opportunity to cure or correct such action or failure to act for 60
days, and Executive promptly commences to cure and correct such
conduct; or
2.6.7 Executive willfully commits or
willfully causes any member of the Bank Group to commit any
material violation of law, rule or regulation affecting the Bank
Group or regulatory order or consent to which any member of the
Bank Group is subject; or
2.6.8 Any of Executive’s
representations or warranties under this Agreement is incorrect in
any material respect.
2.7 “ Good Reason
” shall mean the occurrence of one or more of the
following:
2.7.1 without the consent of
Executive, the Board assigns any duties to Executive substantially
inconsistent with, or reflecting an adverse change in,
Executive’s position, duties, responsibilities or status as
the executive vice president of the Bank, provided that
Executive must advise the Board within five days of assignment of
such duties that he believes such duties would give him the right
to terminate his employment for Good Reason and the Board does not
withdraw such assignment; or
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2.7.2 without the consent of
Executive, the Bank relocates Executive’s principal place of
employment to a location that is not in either Los Angeles County
or Ventura County, California.
2.8 “ Person ”
shall mean an individual or a partnership, corporation, trust,
association, limited liability company, governmental authority or
other entity.
2.9 “ 2007 Loan Origination
Goal ” shall mean that the Bank shall have closed in 2007
Funded Loans with an aggregate principal amount in excess of
$400,000,000. For this purpose:
2.9.1 Funded Loans shall mean loans
closed in 2007 except as otherwise set forth in this
Section 2.9;
2.9.2 a loan closed in 2006 but
funded in 2007 shall not be a Funded Loan;
2.9.3 a construction loan or
revolving line of credit closed in 2007 shall be a Funded Loan to
the maximum stated commitment of the Bank, notwithstanding how
much, if any, of the commitment is funded in 2007;
2.9.4 a loan made to any Person, or
affiliate of such Person, shall not be a Funded Loan if such Person
or affiliate of such Person has as of the date of this Agreement,
or had at any time within the three years prior to the date of this
Agreement, a loan from any member of the Bank Group;
2.9.5 an originated loan shall be
deemed closed when the Bank and the borrower have become legally
bound unto one another pursuant to a written loan agreement and the
loan has been funded (or the initial funding on the loan has
occurred); a purchased loan or loan participation shall be deemed
closed when the Bank and the seller have become legally bound unto
one another pursuant to a written purchase and sale agreement and
the purchase and sale have “closed” under the agreement
(or in absence of a closing the Bank has paid the purchase price
for the loan);
2.9.6 any loan that is not in
accordance with the policies and procedures of the Bank shall not
be a Funded Loan unless the deviations or variances have been
brought to the attention of the Board (or appropriate committee
with loan approval authority for such loan) and the Board or
committee approves the loan;
2.9.7 a loan originated by the Bank
in which the Bank concurrently or thereafter sells a participation
interest or interests shall be a Funded Loan for the full amount of
the Loan up to the Bank’s legal lending limit at the time of
origination ( e.g ., if the Bank’s legal lending limit
for that type of loan is $20 million, the loan is for $25 million
and the Bank sell a $10 million participation interest in the loan,
$20 million shall be a Funded Loan); and
2.9.8 a loan or loan participation
purchased by the Bank in 2007 (and with respect to which the
closing of the purchase occurs in 2007) shall be a Funded Loan
unless the Bank had purchased a loan or loan participation at any
time between December 31, 2003 and the date of this Agreement
from the seller or any affiliate of the seller.
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Executive acknowledges that approval
of any loan is within the sole and absolute discretion of the Board
(or persons/committees to whom such authority is delegated by the
Board).
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3.
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Compensation
and Benefits
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3.1 Base Salary . The Bank
shall pay to Executive a base salary of $250,000 per year during
the Employment Term. The Bank shall pay base salary to Executive in
installments in the same manner and at the same times the Bank pays
base salaries to other executive officers of the Bank, but in no
event less frequently than equal monthly installments.
3.2 Bonus .
3.2.1 The Bank shall pay to
Executive a “signing bonus” of $150,000 within 10 days
of the Employment Commencement Date. However, Executive understands
that it is the intention of the Bank that Executive continue
employment with the Bank for at least six months to earn the
signing bonus. Accordingly, if Executive agrees that if he
terminates his employment for any reason other than Good Reason, or
if the Bank terminates his employment For Cause, in either case
prior to six months from the Employment Commencement Date, he shall
concurrently with such termination if he terminates his employment,
or 10 days from termination if the Bank terminates his employment,
repay the full (and not prorated) signing bonus. If he fails to
repay the signing bonus when due, the obligation to repay shall
accrue interest at the rate of 10% per annum until
repaid.
3.2.2 The Board may, in its sole
discretion, award performance bonuses to Executive from time to
time.
3.3 Expense Reimbursement .
Executive shall be entitled to reimbursement from the Bank for the
reasonable costs and expenses that Executive incurs in connection
with the performance of Executive’s duties and obligations
under this Agreement in a manner consistent with the Bank’s
practices and policies therefor.
3.4 Employee Benefit Plans .
During the Employment Term, Executive shall be entitled to
participate in any pension, savings and group term life, medical,
dental, disability and other group benefit plans which the Bank
makes available to its executive officers generally.
3.5 Automobile Allowance .
During the Employment Term, Executive shall be entitled to an
automobile allowance of $1,000 per month, payable in a manner
consistent with the Bank’s practices and policies
therefor.
3.6 Vacation . During the
Employment Term, Executive shall be entitled to paid vacation that
accrues at the rate of one and two-thirds (1 2/3) days per calendar
month, provided that no vacation shall accrue at any time when
Executive has 15 days of accrued and unused vacation. Vacation
shall be subject to the general policies of the Bank regarding
vacation.
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3.7 Disability . In the event
of any disability or illness of Executive, if Executive shall
receive payments as a result of such disability or illness under
any disability plan maintained by the Bank, the Bank shall be
entitled to deduct the amount of such payments received from base
salary payable to Executive during the period of such illness
and/or disability.
3.8 Withholding . The Bank
may deduct from any compensation payable to Executive (including
payments made pursuant to Sections 3 and 5 of this Agreement in
connection with or following termination of employment) amounts
sufficient to cover Executive’s share of applicable federal,
state and/or local income tax withholding, old-age and
survivors’ and other social security payments, state
disability and other insurance premiums and payments.
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4.
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Termination
of Employment
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Executive’s employment shall
terminate on the earliest to occur of the following:
4.1 December 31,
2008;
4.2 upon the death of
Executive;
4.3 upon the delivery to Executive
of written notice of termination by the Bank if Executive shall
suffer a physical or mental disability which renders Executive, in
the reasonable judgment of the Board, unable to perform his duties
and obligations under this Agreement for either 60 consecutive days
or 90 days in any 12-month period;
4.4 upon written notice from
Executive to the Bank for Good Reason provided that such notice is
received within 90 days