Exhibit 10.5.2
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (“Agreement”) is entered into as of
October 27, 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 James
Leonetti, 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 employment
agreement entered into between the Bank and the Employee dated
October 27, 2005.
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)
Effective as of November 16, 2005,
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 of 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 (9) 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 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, as 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 and Chief Financial Officer 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
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Directors, including those specifically set
forth on Exhibit A herein. 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 $375,000, 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 or each year
for that year, and may be changed by mutual agreement of the
parties.
(b)
The Holding Company, through the
Bank, also agrees to pay a bonus of $100,000 upon the execution of
the Agreement, which is specifically conditioned on the
Employee’s continued employment with the Bank for three (3)
years in accordance with the terms of this Agreement. Employee
hereby acknowledges and agrees that if either (i) he should
voluntarily elect to terminate his employment hereunder for other
than good reason (as defined herein or (ii) if Employee is
terminated by the Holding Company or the Bank for cause (as defined
in each employment agreement), in either circumstances, Employee
shall immediately return to the Bank the portion of the $100,000
bonus which is equal to the product of $100,000 times the remaining
percentage of the three year Term (calculated by the number of days
based on a 365 day year) that Employee did not fulfill with the
Holding Company and the Bank.
(c)
The Employee will become eligible to
receive from the Bank a bonus or bonuses, which may be comprised of
Holding Company stock options and restricted stock awards with an
established minimum target of 50% of base compensation, 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.
(d)
The Holding Company, through the
Bank, shall provided a car allowance of $1,000 per month during the
Employment Period.
(e)
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.
(f)
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.
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(g)
In addition to Employers’
designated holidays, Employee shall be permitted to take paid
personal time off of not less than four (4) weeks per calendar
years. None of such personal time off shall accrue nor shall any
balance of such personal time off be owed to Employee at any
time.
(h)
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 Section 4, the Severance Payment paid and provided
hereunder pursuant to Section 9, death benefits provided hereunder
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 .
Employees agrees that for a period of eighteen (18) months
following the termination employment with the Holding Company, he
will not solicit, directly, or indirectly, divert or attempt to
divert for himself or
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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 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 to the positions he has been appointed to pursuant to
Section 2, 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, including Exhibit
A hereof, 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 or (E) a liquidation or dissolution of 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”
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(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 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 Holding Company’s
Board of Directors or a duly authorized committee thereof. Accrued
bonuses shall mean the bonus amount(s) determined in accordance
with Section 4(c) hereof.
(e)
With respect to any stock options
issued to the Employee that were outstanding on the Date of
Termination, any opti
