This Employment Agreement involves
Title: EMPLOYMENT AGREEMENT
Governing Law: California Date: 8/19/2016
Industry: Regional Banks Sector: Financial
This Employment Agreement (this “ Agreement ”), dated as of August 18, 2016, is made and entered into by and between CATHAY GENERAL BANCORP, a Delaware corporation (the “ Company ”), CATHAY BANK, a California corporation and a wholly-owned subsidiary of the Company (the “ Bank ”), and PIN TAI (the “ Executive ”).
W I T N E S S E T H:
WHEREAS, the Executive has been employed by the Company and/or the Bank since 1999, most recently as President of the Bank;
WHEREAS, the Company and the Bank desire to memorialize the employment relationship with the Executive in his new position as President and Chief Executive Officer of the Company and as Chief Executive Officer of the Bank, and his continued position as President of the Bank, and the Executive desires to be employed by the Company and the Bank in such positions, pursuant to the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, each intending to be legally bound hereby, agree as follows:
1. Employment and Positions . The Company and the Bank hereby agree to employ the Executive, and the Executive hereby agrees to be employed by the Company and the Bank, for the Employment Period (as defined below). During the Employment Period, the Executive shall serve as President and Chief Executive Officer of the Company and President and Chief Executive Officer of the Bank, and shall report, respectively, to the Board of Directors of the Company (the “ Company Board ”) and the Board of Directors of the Bank (the “ Bank Board ” and, together with the Company Board, the “ Boards ”), performing such duties and responsibilities as are customarily attendant to such positions with respect to the business of the Company and the Bank and such other duties and responsibilities as may from time to time be assigned to the Executive by the Boards (as applicable). During the Employment Period, the Executive shall also continue to serve, to the extent requested by the Company Board, as a member of the Bank Board, without additional compensation. In addition, if and when elected by the Company Board to fill a vacancy or nominated by the Company Board for election by the Company’s stockholders and subject to election by such stockholders, the Executive shall also serve as a member of the Company Board, without additional compensation.
2. Performance . During the Employment Period, the Executive agrees to devote his business time, energy, experience and talents to the business and affairs of the Company and the Bank, to discharge the responsibilities assigned to the Executive hereunder and by the Boards and to perform faithfully and efficiently such responsibilities. During the Employment Period, it shall not be a violation of this Agreement for the Executive to (i) serve on corporate, civic or charitable boards or committees, (ii) deliver lectures, fulfill speaking engagements or teach at educational institutions, or (iii) manage his and his family’s personal investments, so long as such activities do not materially interfere with the performance of the Executive’s responsibilities as an employee of the Company and the Bank in accordance with this Agreement, as determined in the sole judgment of the Boards. The Executive shall perform all such services in accordance with the policies, procedures and rules established by the Company, the Bank and the Boards. In addition, the Executive shall comply with all laws, rules and regulations that are generally applicable to the Company or its subsidiaries or affiliates and their respective employees, directors and officers.
3. Employment Period . Subject to earlier termination pursuant to Section 7, the term of employment of the Executive hereunder shall begin on October 1, 2016, and shall continue until September 30, 2019 (the “ Initial Term ”); provided , however , that beginning on the first day immediately following the expiration of the Initial Term ( e.g., October 1, 2019), and on each subsequent anniversary of such day, the term of this Agreement shall be extended by an additional one (1) year period (each such period, an “ Additional Term ”), unless at least ninety (90) days before the end of the Initial Term or the applicable Additional Term, the Company and the Bank notify the Executive that the term of this Agreement will not be extended. If the term of this Agreement is not extended, the term of employment hereunder shall terminate as of the end of the Initial Term or the end of any Additional Term, as applicable (collectively, the “ Employment Period ”). Notwithstanding the foregoing, the employment of the Executive hereunder shall cease and this Agreement shall terminate, subject to Section 11(i), if and when during the Employment Period a Change of Control shall occur and the Effective Date shall have commenced (as such terms are defined in the Amended and Restated Change of Control Employment Agreement dated December 18, 2008, among the parties hereto, hereinafter the “ Change of Control Agreement ”), following which the terms of the Executive’s employment shall be governed exclusively by the Change of Control Agreement.
4. Principal Location . The Executive’s principal place of employment shall be the Company’s administrative offices in El Monte, California, or such other location or locations as the Company Board may from time to time designate.
5. Compensation and Benefits .
(a) Base Salary . As compensation for his services hereunder and in consideration of the Executive’s other agreements hereunder, during the Employment Period, the Company shall pay the Executive an annual base salary (the “Base Salary”), payable in equal installments in accordance with the applicable payroll practices, at an initial rate of $700,000 for the first year of this Agreement, subject to annual review by the Company Board for increases but not decreases; provided , however , such Base Salary may be reduced in connection with a broad-based reduction for senior executives of the Company.
(b) Bonus, Incentive, Savings and Retirement Plans . During the Employment Period, the Executive shall be eligible to participate in all bonus, cash incentive, equity incentive, savings and retirement plans, practices, policies, and programs applicable generally to other executive officers of the Company and the Bank.
(c) Welfare Benefit Plans . During the Employment Period, the Executive and/or the Executive’s family, as the case may be, shall be eligible to participate in all welfare benefit plans, practices, policies and programs provided by the Company and the Bank (including, without limitation, medical, prescription, dental, disability, employee life, group life, accidental death and travel accident insurance plans and programs) to the extent applicable generally to other executive officers of the Company and the Bank.
(d) Fringe Benefits . During the Employment Period, the Executive shall be entitled to fringe benefits, including, without limitation, a country club membership and use of a leased luxury automobile (Mercedes, Lexus, BMW, or equivalent) and payment of related expenses, in accordance with the plans, practices, programs and policies of the Company and the Bank for their executive officers.
(e) Vacation . Vacation accrues on a basis equivalent to four (4) weeks per full calendar year of employment, in accordance with the Bank’s standard vacation policy and payroll practices for employees. Vacation will stop accruing after a total of 160 hours (four (4) weeks) are accumulated.
(f) Business Expenses . The Executive shall be reimbursed by the Company and the Bank for all reasonable and necessary business expenses actually incurred by him in performing his duties hereunder in accordance with policies established by the Company and the Bank from time to time and subject to receipt by the Company or the Bank of appropriate documentation.
6. Covenants of the Executive . In return for the consideration in this Agreement, Executive acknowledges his agreement to comply with the following obligations:
(a) Non-solicitation. During the Employment Period and for a period of one (1) year following termination of such employment under any circumstances, the Executive shall not willfully, directly or indirectly, (i) recruit, solicit for employment or otherwise contract for the services of, or establish a business relationship with (or assist any other person in engaging in any such activities), any person who is, or within twelve (12) months before any date of determination was (and, following the termination of the Executive’s employment with the Company, within twelve (12) months before or after such termination, was) an officer of the Company or any of its subsidiaries or affiliates; or (ii) otherwise induce or attempt to induce (or assist any other person in engaging in any such activities) any officer of the Company or any of its subsidiaries or affiliates to terminate such person’s employment or other relationship with the Company or any of its subsidiaries or affiliates, or in any way interfere with the relationship between the Company or any of its subsidiaries or affiliates and any such officer.
(b) Confidential Information . The Executive shall hold in a fiduciary capacity for the benefit of the Company and the Bank all proprietary or confidential information, knowledge or data relating to the Company and its subsidiaries and affiliates, and their respective businesses and operations, which information, knowledge or data shall have been obtained by the Executive during the Executive’s employment by the Company or the Bank and which information, knowledge or data shall not be or become public knowledge (other than by acts by the Executive or representatives of the Executive in violation of this Agreement) (the “ Confidential Information ”). The Executive shall not, without the prior written consent of the Company or the Bank or as may otherwise be required by law or legal process, communicate or divulge any such Confidential Information to anyone other than the Company or the Bank and those persons designated by the Company or the Bank. The foregoing notwithstanding, neither this Agreement nor any other Company agreement or policy shall prohibit the Executive from making a good faith report or related disclosures to any governmental agency or entity regarding potential violations of applicable federal, state or local law or to take other actions protected as whistleblower activity under applicable law. The Executive is not required to notify the Company of any such reports or disclosures.
(c) Non-Disparagement . The Executive shall refrain, both during the Employment Period and after the termination of such employment, from making or publishing any oral or written statements about the Company or any subsidiary or affiliate, or any of their known respective officers, employees, stockholders, investors, directors, agents or representatives, that are malicious, obscene, threatening, harassing, intimidating or discriminatory and which are designed to harm any of the foregoing. The foregoing restriction shall include, without limitation, statements made, whether directly or indirectly, to or on social media, internet websites, blogs and electronic bulletin boards, as well as statements to the media, including writers, researchers, reporters, magazines, newspapers, book publishers, television stations, radio stations, the motion picture industry, public interest groups, and the publishing industry generally. In the event such a communication is made to anyone, it will be considered a material breach of the terms of this Agreement. This provision is not intended to limit the Executive’s right to give nonmalicious and truthful testimony should he be subpoenaed to give such testimony, and the foregoing restrictions shall not apply with respect to the Executive’s communication with federal, state or local governmental agencies as may be legally required or otherwise protected by law.
(d) Company Property . All Confidential Information, files, records, correspondence, memoranda, notes or other documents (including, without limitation, those in computer-readable form) or property relating or belonging to the Company and its subsidiaries and affiliates, whether prepared by the Executive or otherwise coming into his possession or control in the course of the performance of his services for the Company and its subsidiaries and affiliates, shall be the exclusive property of the Company and shall be delivered to the Company, and not retained by the Executive (including, without limitation, any copies thereof), promptly upon request by the Company and, in any event, promptly upon termination of his employment. The Executive acknowledges and agrees that he has no expectation of privacy with respect to the Company’s or its subsidiaries’ or affiliates’ telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages), and that the Executive’s activity and any files or messages on or using any of those systems may be accessed and monitored at any time without notice. Nothing contained herein is intended to constitute a waiver of Executive's privacy rights with respect to any personal e-mail, home network or home computer systems, except to the extent of any communications pertaining to the business of the Company or the Bank.
(e) Enforcement . The Executive acknowledges that a breach of his covenants and agreements contained in this Section 6 would cause irreparable damage to the Company and its subsidiaries and affiliates, the exact amount of which would be difficult to ascertain, and that the remedies at law for any such breach or threatened breach would be inadequate. Accordingly, the Executive agrees that if he breaches or threatens to breach any of the covenants or agreements contained in this Section 6, then in addition to any other remedy which may be available at law or in equity, the Company and its subsidiaries and affiliates shall be entitled to institute and prosecute proceedings in any court of competent jurisdiction for specific performance and injunctive and other equitable relief to prevent the breach or any threatened breach thereof without bond or other security or a showing of irreparable harm or lack of an adequate remedy at law. Whenever the Executive is proven to have breached any of the covenants or agreements contained in this Section 6, after an arbitration proceeding is conducted pursuant to Section 11(n) below, the Company or the Bank (as applicable) may cease or withhold payment to the Executive of any severance payments described in Section 8, for which he otherwise qualifies under such Section 8.
7. Termination of Employment .
(a) Death . The Executive’s employment shall terminate automatically if the Executive dies during the Employment Period.
(b) Disability . If the Company determines in good faith that Disability (as defined below) of the Executive has occurred during the Employment Period, it may give to the Executive written notice in accordance with Section 7 of its intention to terminate the Executive’s employment. In such event, the Executive’s employment with the Company shall terminate effective on the thirtieth (30th) day thereafter (the “ Disability Effective Date ”), provided that, within the thirty (30) days after such receipt, the Executive shall not have returned to full-time performance of his duties. “ Disability ” means the absence of the Executive from the Executive’s duties with the Company or the Bank (as applicable) on a full-time basis for ninety (90) consecutive business days as a result of incapacity due to mental or physical illness that is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to the Executive or the Executive’s legal representative.
(c) Cause . The Company may terminate the Executive’s employment during the Employment Period with or without “ Cause ,” which means:
(i) the willful and continued failure of the Executive to perform substantially the Executive’s duties hereunder (other than any such failure resulting from incapacity due to physical or mental illness or following the Executive’s delivery of a Notice of Termination for Good Reason), after a written demand for substantial performance is delivered to the Executive by the Company Board that specifically identifies the manner in which the Company Board believes that the Executive has not substantially performed the Executive’s duties, or
(ii) the willful engaging by the Executive in illegal conduct or gross misconduct that is materially and demonstrably injurious to the Company or the Bank.
For purposes of this Section 7(c), no act, or failure to act, on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of the Company.
(d) Good Reason . The Executive’s employment may be terminated during the Employment Period by the Executive for, or by the Executive voluntarily without, “ Good Reason ,” which means:
(i) the assignment to the Executive of any duties inconsistent in any respect with the Executive’s position (including status, offices, titles and reporting requirements), authority, duties or responsibilities as contemplated by Section 1, or any other material diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and that is remedied by the Company or the Bank promptly after receipt of notice thereof given by the Executive;
(ii) any failure by the Company or the Bank to comply with any of the provisions of Section 5(a), other than an isolated, insubstantial and inadvertent failure not occurring in bad faith and that is remedied by the Company or the Bank promptly after receipt of notice thereof given by the Executive;