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Exhibit
10.1
PFF BANCORP,
INC.
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
This AMENDED AND RESTATED
AGREEMENT (“Agreement”) is made effective as of
by and between PFF Bancorp, Inc. (the “Holding
Company”), a corporation organized under the laws of
Delaware, with its principal administrative office at 9337 Milliken
Avenue, Rancho Cucamonga, California 91729, and
(“Executive”). Any reference to
“Institution” or “Bank” herein shall mean
PFF Bank & Trust or any successor thereto.
WHEREAS, the Holding Company
wishes to assure itself of the services of Executive for the period
provided in this Agreement; and
WHEREAS, Executive is willing
to serve in the employ of the Holding Company on a full-time basis
for said period.
NOW, THEREFORE, in
consideration of the mutual covenants herein contained, and upon
the other terms and conditions hereinafter provided, the parties
hereby agree as follows:
1. POSITION AND
RESPONSIBILITIES.
During the period of
Executive’s employment hereunder, Executive agrees to serve
as
of the Holding
Company. Executive shall render administrative and management
services to the Holding Company such as are customarily performed
by persons in a similar executive capacity. During said period,
Executive also agrees to serve, if elected, as an officer and
director of any subsidiary of the Holding Company.
2. TERMS.
a) The period of
Executive’s employment under this Agreement shall be deemed
to have commenced as of the date first above written and shall
continue for a period of thirty-six (36) full calendar months
thereafter. Commencing on the date of the execution of this
Agreement, the term of this Agreement shall be extended for one day
each day until such time as the board of directors of the Holding
Company (the “Board”) or Executive elects not to extend
the term of the Agreement by giving written notice to the other
party in accordance with Section 8 of this Agreement, in which
case the term of this Agreement shall be fixed and shall end on the
third anniversary of the date of such written notice.
b) During the period of
Executive’s employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence, Executive shall devote substantially
all his business time, attention, skill, and efforts to the
faithful performance of his duties hereunder including activities
and services related to the organization, operation and management
of the Holding Company and its, direct or indirect, subsidiaries
(“Subsidiaries”) and participation in community and
civic organizations; provided, however, that, with the approval of
the Board, as evidenced by a resolution of such Board, from time to
time, Executive may serve, or continue to serve, on the boards of
directors of, and hold
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any other offices or positions in,
companies or organizations, which, in such Board’s judgment,
will not present any conflict of interest with the Holding Company
or its Subsidiaries, or materially affect the performance of
Executive’s duties pursuant to this Agreement.
c) Notwithstanding anything
herein contained to the contrary, Executive’s employment with
the Holding Company may be terminated by the Holding Company or
Executive during the term of this Agreement, subject to the terms
and conditions of this Agreement.
3. COMPENSATION AND
REIMBURSEMENT.
a) Executive shall be
entitled to a salary from the Holding Company or its Subsidiaries
of $
per year (“Base Salary”). Base Salary shall include any
amounts of compensation deferred by Executive under any qualified
or unqualified plan maintained by the Holding Company and its
Subsidiaries. Such Base Salary shall be payable bi-weekly. During
the period of this Agreement, Executive’s Base Salary shall
be reviewed at least annually; the first such review will be made
no later than one year from the date of this Agreement. Such review
shall be conducted by the Board or by a Committee of the Board
delegated such responsibility by the Board (the
“Committee”). The Committee or the Board may increase
Executive’s Base Salary. Any increase in Base Salary shall
become the “Base Salary” for purposes of this
Agreement. In addition to the Base Salary provided in this
Section 3(a), the Holding Company shall also provide
Executive, at no premium cost to Executive, with all such other
benefits as provided uniformly to permanent full-time employees of
the Holding Company and its Subsidiaries.
b) Executive shall be
entitled to participate in any employee benefit plans, arrangements
and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from
immediately prior to the beginning of the term of this Agreement,
and the Holding Company and its Subsidiaries will not, without
Executive’s prior written consent, make any changes in such
plans, arrangements or perquisites which would materially adversely
affect Executive’s rights or benefits thereunder, except to
the extent that such changes are made applicable to all Holding
Company and Institution employees eligible to participate in such
plans, arrangements and perquisites on a non-discriminatory basis.
Without limiting the generality of the foregoing provisions of this
Section (b), Executive shall be entitled to participate in or
receive benefits under any employee benefit plans including, but
not limited to, retirement plans, supplemental retirement plans,
pension plans, profit-sharing plans, health-and-accident plans,
medical coverage or any other employee benefit plan or arrangement
made available by the Holding Company and its Subsidiaries in the
future to its senior executives and key management employees,
subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements. Executive
shall be entitled to incentive compensation and bonuses as provided
in any plan of the Holding Company and its Subsidiaries in which
Executive is eligible to participate. Nothing paid to Executive
under any such plan or arrangement will be deemed to be in lieu of
other compensation to which Executive is entitled under this
Agreement.
c) In addition to the Base
Salary provided for by paragraph (a) of this Section 3
and other compensation provided for by paragraph (b) of this
Section 3, the Holding Company shall
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pay or reimburse Executive for all
reasonable travel and other reasonable expenses incurred by
Executive performing his obligations under this Agreement and may
provide such additional compensation in such form and such amounts
as the Board may from time to time determine.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT
OF TERMINATION.
a) Upon the occurrence of an
Event of Termination (as herein defined) during Executive’s
term of employment under this Agreement, the provisions of this
Section shall apply. As used in this Agreement, an “Event of
Termination” shall mean and include any one or more of the
following: (i) the termination, as defined in Treasury
Regulation Section 1.409A-1(h)(1)(ii), by the Holding Company
of Executive’s full-time employment, hereunder for any reason
other than termination governed by Section 5(a) hereof, death,
retirement (as defined in the Institution’s employee
handbook) or for Cause, as defined in Section 7 hereof;
(ii) Executive’s resignation from the Holding
Company’s employ, as defined in Treasury Regulation
Section 1.409A-1(h)(1)(ii), upon, (A) any failure to
elect or reelect or to appoint or reappoint Executive as
, unless consented to by Executive, (B) a material change in
Executive’s function, duties, or responsibilities with the
Holding Company or its Subsidiaries, which change would cause
Executive’s position to become one of lesser responsibility,
importance, or scope from the position and attributes thereof
described in Section 1, above, unless consented to by
Executive, (C) a relocation of Executive’s principal
place of employment by more than 25 miles from its location at the
effective date of this Agreement, unless consented to by Executive,
(D) a material reduction in the benefits and perquisites to
Executive from those being provided as of the effective date of
this Agreement, unless consented to by Executive, or
(E) breach of this Agreement by the Holding Company. Upon the
occurrence of any event described in clauses (A), (B), (C),
(D) or (E), above, Executive shall have the right to elect to
terminate his employment under this Agreement by resignation upon
not less than sixty (60) days prior written notice given
within six (6) full calendar months after the event giving
rise to said right to elect; provided, however, an Event of
Termination shall not be deemed to have occurred if, during the
sixty (60) day notice period, the circumstances giving grounds
to the Event of Termination are cured in a manner determined by
Executive, in his discretion, to be satisfactory.
b) Upon the occurrence of an
Event of Termination, on the Date of Termination, as defined in
Section 8, the Holding Company shall be obligated to pay
Executive, or, in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be, a
sum equal to the sum of: (i) the amount of the remaining
payments that Executive would have earned if he had continued
working for the Holding Company and/or Institution during the
remaining unexpired term of this Agreement at Executive’s
Base Salary at the Date of Termination; (ii) the amount equal
to the annual value of the additional employer-derived
contributions that would have been credited directly to
Executive’s accounts under the tax-qualified 401(k) plan,
employee stock ownership plan and all nonqualified benefit plans
that Executive would have earned if he had continued working for
the Holding Company and/or Institution during the remaining
unexpired term of this Agreement, with such amounts to be
calculated by multiplying the last annual amount credited to
Executive’s account under each of these plans by the
remaining unexpired term of this Agreement; (iii) the portion,
if any, of the compensation earned by Executive through the date of
the termination of his employment with the Holding Company and/or
Institution which remains unpaid as of such date, such payment to
be made at the time and
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in the manner prescribed by law
applicable to the payment of wages but in no event later than
twenty (20) days following the later of the end of the taxable
year of Executive, Holding Company or Bank in which the termination
event, as defined in Treasury Regulation
Section 1.409A-1(h)(1)(ii), occurs; and (iv) the
benefits, if any, to which he is entitled as a former employee
under the employee benefit plans and programs and compensation
plans and programs maintained by the Holding Company and the
Institution for their officers and employees. At the election of
Executive, which election is to be made prior to an Event of
Termination, such cash payments shall be made in a lump sum within
thirty (30) days following the Date of Termination or in
approximately equal monthly installments during the remaining term
of the Agreement with no present value applied; provided, however,
that if no election is made, then payments will be made in monthly
installments rather than in a lump sum; provided, further, that the
final payment shall be made within twenty (20) days following
the later of the end of the taxable year of Executive, Holding
Company or Bank in which the termination event occurs. Such
payments shall not be reduced in the event Executive obtains other
employment following termination of employment.
c) Upon the occurrence of an
Event of Termination followed by an actual termination of
employment, the Holding Company will cause to be continued life,
medical, dental and disability coverage substantially equivalent to
the coverage maintained by the Holding Company or its Subsidiaries
for Executive prior to his termination at no premium cost to
Executive, except to the extent such coverage may be changed in its
application to all Holding Company or Institution employees on a
non-discriminatory basis. Such coverage shall cease upon the
expiration of the remaining term of this Agreement. In addition,
notwithstanding the foregoing, if the provision of any of the
benefits covered by this Section 4(c) would trigger the 20%
tax and interest penalties under Section 409A of the Internal
Revenue Code (“Section 409A”), then the benefit(s) that
would trigger such tax and interest penalties shall not be provided
(collectively, the “Excluded Benefits”), and in lieu of
the Excluded Benefits the Holding Company shall pay to Executive,
in a lump sum within thirty (30) days following the
termination event, or within thirty (30) days after such
determination should it occur following termination of employment,
a cash amount equal to the economic equivalent (defined as the
present value of the full monthly premium cost over the remaining
unexpired term using the 120% discount rate of the short-term
applicable federal rate as set forth in the IRS Regulations) of
such Excluded Benefits.
The Holding Company and
Executive hereby stipulate that the damages which may be incurred
by Executive following any such termination of employment are not
capable of accurate measurement as of the date first above written
and that the payments and benefits contemplated by Sections 4(b)
and (c) constitute reasonable damages under the circumstances
and shall be payable without any requirement of proof of actual
damage and without regard to Executive’s efforts, if any, to
mitigate damages. The Holding Company and Executive further agree
that the Holding Company may condition the payments and benefits
(if any) due under Sections 4(b)(i), 4(b)(ii), and 4(c) on the
receipt of Executive’s resignation from any and all positions
which he holds as an officer, director or committee member with
respect to the Holding Company, the Institution or any subsidiary
or affiliate of either of them and the execution of an effective
release of claims, consistent with the time frame and terms
contained in Section 25 of this Agreement, against the Holding
Company and its Subsidiaries in a form to be prescribed by the
Holding Company.
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d) Executive, the Holding
Company and the Bank acknowledge that each of the payments and
benefits promised to Executive under this Agreement must either
comply with the requirements of Section 409A of the Code and
the regulations thereunder or qualify for an exception from
Section 409A of the Code. To that end, Executive, the Holding
Company and the Bank agree that the termination benefits described
in Section 4(b) are intended to be exempt from
Section 409A pursuant to Treasury Regulation
Section 1.409A-1(b)(4) as short-term deferrals (or payments in
substitution for payments that qualify as short-term deferrals) and
the benefits described in Section 4(c) are intended to be
exempt from Section 409A pursuant to Treasury Regulation
Section 1.409A-1(a)(5) as amounts not includable in income by
virtue of being received under a health plan satisfying
Section 105 of the Code or termination benefits exempt from
Section 409A pursuant to Treasury Regulation
Section 1.409A-1(b)(4) as short-term deferrals (or payments in
substitution for payments that qualify as short-term
deferrals).
5. CHANGE IN CONTROL.
a) For purposes of this
Agreement, a “Change in Control” of the Holding Company
or the Institution shall mean any of the following
events:
(i) the occurrence of any
event (other than an event described in Section 5(a)(iii)(A))
upon which any “person” (as such term is used in
sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (“Exchange Act”)), other than (A) a
trustee or other fiduciary holding securities under an employee
benefit plan maintained for the benefit of employees of the Holding
Company; (B) a corporation owned, directly or indirectly, by
the stockholders of the Holding Company in substantially the same
proportions as their ownership of stock of the Holding Company; or
(C) any group constituting a person in which employees of the
Holding Company are substantial members, becomes the
“beneficial owner” (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of
securities issued by the Holding Company representing 20% or more
of the combined voting power of all of the Holding Company’s
then outstanding securities, excluding any securities purchased by
the Holding Company’s employee stock ownership plan and
trust;
(ii) the occurrence of any
event upon which the individuals who on the date this Agreement is
executed are members of the Board, together with individuals whose
election by the Board or nomination for election by the Holding
Company’s shareholders was approved by the affirmative vote
of at least three-quarters of the members of the Board then in
office who were either members of the Board on the date this
Agreement is executed or whose nomination or election was
previously so approved, cease for any reason to constitute a
majority of the members of the Board, but excluding, for this
purpose, any such individual whose initial assumption of office is
in connection with an actual or threatened election contest
relating to the election of directors of the Holding
Company;
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(iii) the consummation of
either:
(A) a merger or consolidation
of the Holding Company with any other corporation, other than a
merger or consolidation following which both of the following
conditions are satisfied:
(I) either (1) the
members of the Board of the Holding Company immediately prior to
such merger or consolidation constitute at least a majority of the
members of the governing body of the institution resulting from
such merger or consolidation; or (2) the shareholders of the
Holding Company own securities of the institution resulting from
such merger or consolidation representing 80% or more of the
combined voting power of all such securities of the resulting
institution then outstanding in substantially the same proportions
as their ownership of voting securities of the Holding Company
immediately before such merger or consolidation; and
(II) the entity which results
from such merger or consolidation expressly agrees in writing to
assume and perform the Holding Company’s obligations under
this Agreement; or
(B) a plan of complete
liquidation of the Holding Company or an agreement for the sale or
disposition by the Holding Company of all or substantially all of
its assets;
(iv) the occurrence of an
event which would require the Holding Company to report a response
to Item 5.01 of the current report on Form 8-K, as in effect
on the date hereof, pursuant to Section 13 or 15(d) of the
Exchange Act;
(v) the occurrence of an
event which would result in a Change in Control of the Institution
within the meaning of the Home Owners’ Loan Act of 1933 and
the Rules and Regulations promulgated by the Office of Thrift
Supervision (“OTS”), as in effect on the date hereof
(provided that in applying the definition of change in control as
set forth in the Rules and Regulations of the OTS, the Board shall
substitute its judgment for that of the OTS); or
(vi) any event that would be
described in Section 5(a)(i), (ii), (iii) or (iv) if
the term “Institution” were substituted for the term
“Holding Company” therein.
b) If a Change in Control has
occurred pursuant to Section 5(a) or the Board has determined
that a Change in Control has occurred, Executive, at any time
within ninety (90) days following the Change in Control, shall
have the right to terminate employment and shall be entitled to the
benefits provided in paragraphs (c) and (d) of this
Section 5 upon his subsequent termination of employment
(voluntary or involuntary), unless such termination is because of
his Termination for Cause; provided, however, that such benefits
paid on account of Executive’s termination due to a Change in
Control are paid no later than twenty (20) days following the
later of the end of the taxable year of Executive, Holding Company
or Bank in which the termination event occurs, and in order to
accommodate this payment timing, the ninety (90) day period
referenced in this Section 5(b) will be shortened as
necessary.
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c) Upon Executive’s
entitlement to benefits pursuant to Section 5(b), the Holding
Company shall pay Executive, or in the event of his subsequent
death, his beneficiary or beneficiaries, or his estate, as the case
may be, as severance pay or liquidated damages, or both, an
immediate lump sum equal to three (3) times Executive’s
average annual compensation for the three (3) preceding
taxable years with such compensation to be paid within thirty
(30) days following the termination event. Such annual
compensation shall include any Base Salary, commissions, bonuses,
the value of employer-derived contributions credited to the
accounts of Executive (vested or unvested) under any pension,
401(k), employee stock ownership and profit sharing plan, severance
payments, directors or committee fees and fringe benefits paid or
to be paid to Executive during such years. If Executive shall have
worked less than three (3) taxable years, then the average
shall be computed as an average of the number of years worked by
Executive. Similarly, if Executive shall have worked for any
portion of a taxable year in the thr
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