exv10w1






Exhibit 10.1




EMPLOYMENT AGREEMENT




     This Employment Agreement (this “Agreement”) is entered into by and between Capital Corp of
the West, a California bank holding company (“CCOW” or “Company”) and Richard Cupp, as of August
15, 2008 (the “Effective Date) and shall be in effect for the period of one year, subject to
renewal for such term as may be agreed upon by the parties. This Agreement by and between the
Company and Executive (collectively referred to as the “Parties”) is intended, where applicable,
to comply with section 409A of the Internal Revenue Code of 1986, as amended (“Code”). While
following execution this Agreement shall be effective as of the Effective Date, it shall not be
executed by the parties or become effective until all required regulatory approvals have been
received.



     1. Duties and Executive Position.



     Executive is hereby employed as the President and Chief Executive Officer of CCOW and Chief
Executive Officer of County Bank. Executive shall perform the customary duties of a Chief
Executive Officer for a California bank holding company, including but not limited to supervision
of Company’s business and all subsidiary corporations and businesses owned or related to Company
and such other duties as may from time to time be reasonably requested of Executive by the Board
of Directors of Company (“Board”). As used herein the term “business of Company” shall include the
business of any of Company’s subsidiaries and related entities.



     2. Appointment to Company’s Board of Directors.



     Company hereby agrees that Executive shall remain a member of the Board for so long as
Executive is elected to a position on the Board by the shareholders of Company and this Agreement
has not been terminated. During the period of Executive’s election to the Board, Executive shall
serve as a member of any or all committees to which he is appointed, except the current Audit
Committee and Compensation Committee and any future Board committees which require only independent
directors. Executive also hereby agrees to accept appointment to other boards of directors and
committees of subsidiary and related organizations of Company, except such committees that require
an independent director. Executive shall fulfill all of Executive’s duties as a Board and committee
member without additional compensation. Except as otherwise expressly provided by the terms of this
Agreement, upon the termination of Executive’s employment under this Agreement by either Executive
or Company, Executive’s service on the Board, all committees of the Company, all corporate offices
of Company, and all of Company’s subsidiaries and related companies shall be immediately terminated
without further corporate action; further, all fringe benefits, such as insurance, shall be
terminated on the last day of service of Executive, unless otherwise expressly provided by the
terms of this Agreement, Company’s personnel policy, or any other benefit policies and programs in
effect at the time of such termination.



     3. Arbitration.



     To the fullest extent permitted by law all controversies between Executive and Company,
including whether any termination is with or without cause, will be submitted for resolution to



 









 




binding arbitration in accordance with the Employment Rules of the American Arbitration
Association. This means that, except as otherwise stated, both the Company and the Executive
understand that arbitration will be their exclusive forum for resolving disputes between them, and
that both parties waive their entitlement, if any, to have controversies between them decided by a
court or a jury. This provision shall not apply to any claim or controversy with respect to or
arising out of any employee benefit plan or program of the Company to the extent that such plan or
program requires participants, beneficiaries and other claimants to follow certain claims
procedures specified therein.




     4. Extent of Service.



     Throughout his employment with the Company as President and Chief Executive Officer,
Executive shall donate his full time, attention, and energies to the business of Company and shall
not be engaged in any other business activities, except personal investments, without the prior
written consent of Company.



     5. Regular Compensation.



     In consideration for the services which Executive is to render under this Agreement, Company
shall pay to Executive a base salary (“Base Salary”) at the annual rate of Five Hundred Thousand
Dollars ($500,000). The Base Salary shall be payable to Executive in equal semi-monthly
installments on the company’s normal payroll schedule.



     6. Annual Incentive Compensation.



     The maximum target bonus for the first year shall equal 150% times Base Salary, comprised of
three components: (i) the Guaranteed portion; (ii) the Performance Criteria portion; and (iii) the
Strategic Criteria portion. At the end of the first twelve months, Executive shall be paid a bonus
of $250,000 (the “Guaranteed” portion) which is guaranteed. The remaining target bonus for the
first year shall be performance based comprised of $250,000 to be awarded based on mutually agreed
upon performance criteria (the “Performance Criteria” portion) and $250,000 to be awarded based on
achievement of strategic criteria (the “Strategic Criteria” portion). The Performance Criteria and
Strategic Criteria shall be established not more than 30 days following the execution of this
Agreement. The target bonus to which Executive is entitled shall be paid within 30 days of the
first anniversary of the Effective Date of this Agreement or within 30 days following the
termination of Executive’s employment, whichever is sooner.



     If this Agreement is renewed for a second year, the target bonus for the second year shall
equal 100% of Base Salary and shall be based entirely on mutually agreed performance criteria. The
award of the bonus for the second year shall be based on the determination of the Compensation
Committee of the Board of Directors that Executive has met or exceeded the performance criteria.



     Executive shall also be entitled to participate in any incentive programs which may be adopted
from time to time by Company for Executive, subject to the terms thereof. Amounts



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awarded to Executive under any said incentive program shall be determined at the sole discretion
of Company, including the vesting of any incentive awards.




     7. Business Expenses.



     Executive shall be reimbursed for all ordinary and necessary, documented expenses in
conformance with company policy. Request for reimbursement of other expenses should be presented
to the board in advance for approval. In addition, the company will provide suitable housing and
related housing expenses for the Executive.



     8. Automobile.



     Company shall purchase or lease an automobile of the Executive’s choice for his use as Chief
Executive Officer at an “out the door” cost not to exceed $55,000. Company shall pay all fuel,
operating, maintenance, and insurance costs. Executive shall be entitled to limited use of the
automobile for personal use, but shall primarily use it for business purposes associated with his
employment. As the Chief Executive Officer of Company, Executive has been provided an automobile
for the convenience of Company. Company expects the Executive will frequently visit Company’s
various business locations, customers, business partners, vendors, regulatory agencies, ratings
and market making agencies and travel for trade associations in which Company is actively engaged.
Upon termination of employment, automobile is to be returned to the company in good condition on
the final date of employment.



     9. Vacation.



     During his employment Executive shall be entitled to vacation leave at full salary at the
discretion of Executive as time allows, so long as it is reasonable and does not jeopardize his
responsibilities, of twenty (20) business days per annum; provided that Executive shall take as a
portion of his vacation leave at least ten (10) consecutive business days per annum, unless
otherwise waived by the Board.



     10. Disability.



     If Executive becomes disabled (as defined in section 409A of the Code) during his employment
with Company pursuant to the terms of this Agreement, Company agrees to continue Executive’s Base
Salary (i) for ninety (90) days from commencement of the disability or (ii) until Executive is
able to return to work whichever is less.



     11. Insurance.



     Company shall provide to Executive, for the benefit of Executive and his eligible spouse,
during Executive’s employment with Company pursuant to this Agreement and at Company’s expense the
same medical insurance, dental insurance, and disability insurance coverage, if any, which may be
offered to Company’s other full-time Executives under any benefit plans as may be in effect from
time to time.



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     The parties acknowledge that Executive’s Base Salary has been set high enough under this
Agreement so that Executive may pay for additional life insurance that would exceed the maximum
company benefit. However, Executive shall have the right to determine whether to maintain life
insurance and use part of his Base Salary to cover the premiums thereon, or to use the Base Salary
for other purposes. Company shall have no duty under this Agreement to give Executive any
additional compensation to cover life insurance premiums or to maintain any life insurance on
Executive’s life.



     12. Stock Options.



          (a) As part of the consideration for entering this Agreement, the Board has
agreed to grant Executive 100,000 incentive stock options on or about the Effective Date. The
stock option grant will vest as follows: 20% shall vest 12 months after the grant date.
Thereafter
the options will vest 20% per year on the anniversary of the grant date. Options will be
totally
vested in five years. Stock Options will immediately vest and become exercisable upon the
following: 1. Termination by the Company without “cause” as defined in Section 19 below, 2.
Termination by the Executive for “good reason” as defined in Section 19 below or 3.
Completion of this Agreement (as defined in Section 19(d)).




          (b) Such stock options shall be granted pursuant to and subject to the terms of
the 2002 Stock Option Plan, as amended and shall be subject to such other terms as determined
by the Board as may be set forth in the stock option award agreement.




          (c) Additional annual stock option grants may be recommended by the
Compensation Committee subject to the approval of the Board of Directors.




     13. Retirement Plans. Executive shall be entitled to participate in any retirement
plans offered to other Executives of the company, such as Executive’s participation in Company’s 401(k) plan and ESOP.




     14. Printed Material.



     All written, printed, electronic, visual or audio materials used by Executive in performing
duties for Company, other than Executive’s personal notes and diaries, are and shall remain the
property of Company. Upon termination of employment on any basis, Executive shall return all such
materials to Company.



     15. Disclosure of Information.



     In the course of employment, Executive may have access to confidential information and trade
secrets relating to Company’s business. Except as required in the course of employment by Company,
Executive shall not, without Company’s prior written consent, directly or indirectly disclose to
anyone any confidential information relating to Company or any financial information, trade secrets
or “know-how” that is germane to Company’s business and operations.



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Executive recognizes and acknowledges that any financial information concerning any of Company’s
customers, as it may exist from time to time, is strictly confidential and is a valuable, special
and unique asset of Company’s business. Executive shall not, either before or after termination of
this Agreement, disclose to anyone said financial information, or any part thereof, for any reason
or purposes whatsoever.




     16. Prohibited Activities and Investments.



     During Executive’s employment with Company pursuant to this Agreement, Executive shall not,
directly or indirectly, either as an Executive, Company, consultant, agent, principal, partner,
principal stockholder (i.e., ten percent or more) or corporate officer, directly, or in any other
individual or representative capacity, engage or participate in any business competitive with that
of Company.



     17. Surety Bond.



     Executive agrees to furnish all information and take any other steps necessary to enable
Company to obtain and maintain a fidelity bond conditional on the rendering of a true account by
Executive of all moneys, goods, or other property that may come into the custody, charge, or
possession of Executive during Executive’s employment. The surety company issuing such bond and
the amount of the bond must be acceptable to Company. All premiums on the bond are to be paid by
Company. If Executive cannot personally qualify for a surety bond at any time during the
Executive’s employment with Company pursuant to this Agreement, Company shall have the option to
terminate this Agreement immediately and said termination shall be deemed to be a termination for
cause under section 19(a) herein.



     18. Moral Conduct.



     Executive agrees to conduct himself at all times with due regard to public conventions and
morals and to abide by and reflect in his personal actions all of the “core values” adopted by
Company and its subsidiaries from time to time. Executive further agrees not to do or commit any
act that will reasonably tend to degrade him or to bring him into public hatred, contempt or
ridicule, or that will reasonably tend to shock or offend any community in which Company engages
in business, or to prejudice Company or the banking industry in general.



     19. Termination of
Agreement.



          (a) Termination for Cause.




     Company reserves the right to terminate this Agreement “for cause.” Termination for cause
shall include termination because of Executive’s (i) personal dishonesty, (ii) incompetence, (iii)
willful misconduct, (iv) breach of fiduciary duty involving personal profit, (v) material breach of
any of the terms of this Agreement, (vi) substantial failure to perform assigned duties, (vii)
willful violation of any law, rule or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order, or (viii) the willful or permanent breach by Executive
of any obligations owed to Company pursuant to this Agreement. In addition,



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Company reserves the right to terminate this Agreement “for cause” in the event that actions are
effected by any regulatory agency having jurisdiction to remove or suspend Executive from office,
or upon the directive of any such regulatory agency that Company must remove Executive as its
Chief Executive Officer, regardless of whether such directive is given orally or in writing.




          (b) Statutory Grounds for Termination.




     Executive’s employment under this Agreement shall terminate immediately upon the occurrence
of any of the following events, which events are described in sections 2920 and 2921 of the
California Labor Code:




	 	(1)	 	The occurrence of circumstances that make it
impossible or
impractical for the business of Company to be continued.

	 
	 	(2)	 	The death of Executive.

	 
	 	(3)	 	The loss of Executive’s legal capacity. This
does not affect
Executive’s rights under section 10 of this Agreement.

	 
	 	(4)	 	The loss by Company of legal capacity to contract.

	 
	 	(5)	 	Subject to section 10 of this Agreement, the
continued incapacity
on the part of Executive under this Agreement, unless waived by
Company.






          (c) Definition of Good Reason.



As used in this Agreement, the term Good Reason means the occurrence of any of the following
provided, however, that any such event or condition shall cease to constitute a Good Reason two
years following its initial existence:





(1) A material diminution in Executive’s Base Salary;




(2) A material diminution in Executive’s authority, duties, or responsibilities;




(3) A requirement that Executive report to a corporate officer or employee instead of
reporting directly to the Board of Directors of the Company.




(4) A change in the Executive’s principal work location to any location that is more
than 50 miles from Executive’s current work location on the date of this Agreement; or




(5) Any other action or inaction that constitutes a material breach of this Agreement by
the Company.


Notwithstanding the foregoing, the Executive shall not be considered to have terminated employment
for Good Reason (i) unless he provides written notice to the Company of the





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existence of the event or condition constituting Good Reason within 90 days of its initial
existence, or (ii) if the Company remedies such event or condition within 30 days of receipt of
such notice.




          (d) Completion of Agreement



     The Executive’s employment under this Agreement will terminate on the one year anniversary of
the effective date of this Agreement unless extended or renewed by the written agreement of
parties. “Completion of the Agreement” means Executive’s performance of his duties under this
Agreement through the later of (i) the end of the first one year term or (ii) if the Company
requests that the parties renew or extend this Agreement on substantially the same terms, through
the end of the second one year term (or such shorter renewal term as the parties mutually agree).



     20. Bonus Calculation and Severance Pay



          (a) (Bonus Calculation) If the Company terminates this Agreement without
cause, or if the Executive terminates the agreement for good reason, the Executive will
receive
his base salary through the date of termination and the annual target bonus; provided,




          (i) during the first one year term, the Executive will receive the
Guaranteed portion of $250,000 plus, if the Strategic Criteria are met, the
Strategic Criteria portion ($250,000), plus, any amount related to the Performance
 Criteria portion (up to $250,000) which shall be determined by the Board’s
Compensation Committee; and




          (ii) after the first one year term, the Executive is eligible to receive the
target bonus of up to $500,000 which shall be determined by the Board’s
Compensation Committee based upon mutually agreed performance criteria.


Payment of incentive bonus under this Section 20(a) is in lieu of the annual incentive bonus to
which Executive would have been entitled under Section 6 if this Agreement had continued to the
end of its then current term. In no case will Executive receive both an annual incentive bonus
under Section 6 and any payment under this Section 20(a) with respect to the same period of
employment.




          (b) (Severance Pay) If the Company terminates this Agreement without cause,
or if Executive terminates the Agreement for Good Reason, or upon Executive’s completion of
the Agreement, the Executive also will receive a lump sum severance payment of $500,000 plus,
a performance based severance payment of $250,000. The performance based severance award
shall be conditioned on a finding by the Compensation Committee of the Company’s Board of
Directors that Executive during the first year has achieved both the Performance Criteria and
the
Strategic Criteria or after the first year that Executive has achieved applicable performance
criteria.



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          (c) For the avoidance of uncertainty: if the Executive refuses to renew or extend this
Agreement on substantially similar terms for a period not to exceed one year at the request of the
Company after the initial one year term, Executive will be entitled to the annual incentive bonus
under Section 6 for the first one year term but will not be entitled to any additional payment
under Section 20(a) or to any severance under Section 20(b); and if this Agreement terminates (i)
pursuant to Section 19(b) of this Agreement, (ii) by Company “for cause” (pursuant to Section
19(a) of this Agreement), or (iii) because of the death, incapacity or disability of Executive,
Executive shall not receive any annual incentive bonus under Section 6 or Section 20(a) or any
severance under Section 20(b).



          (d) Payments under the terms of this Section 20 are subject to regulatory approval pursuant
to Part 359 of the FDIC Rules and Regulations.



     21. Cooperation with Company After Termination of the Executive’s Employment.



     Following termination of the Executive’s employment, Executive shall fully cooperate with
Company in all matters relating to the winding up of his pending work on behalf of Company and the
orderly transfer of any such pending work to other employees of Company as may be designated by
Company, including but not limited to the successor President and Chief Executive Officer of
Company.



     22. Notices.



     Any notice to Company required or permitted under this Agreement shall be given in writing to
Company, either by personal service or by certified mail, postage prepaid, addressed to the
chairman of the Board at its then principal place of business. Any such notice to Executive shall
be given in like manner and, if mailed, shall be addressed to Executive at Executive’s home
address then shown on Company’s files. For the purpose of determining compliance with any time
limit in this Agreement, a notice shall be deemed to have been duly given (a) on the date of
service, if personally served on the party to whom notice is to be given, or (b) the fifth
business day after mailing, if mailed to the party to whom notice is to be given in the manner
provided in this Section.



     23. Nonassignability.



     Neither this Agreement nor any right or interest hereunder shall be assignable by Executive,
his beneficiaries or legal representatives without Company’s prior written consent; provided,
however, that nothing in this Section 23 shall preclude (i) Executive from designating a
beneficiary to receive any benefit payable hereunder upon his death, or (ii) the executors,
administrators, or other legal representatives of Executive or his estate from assigning any
rights hereunder to the person or persons entitled thereto.



     24. No Attachment.



     Except as required by law, no right to receive payments under this Agreement shall be subject
to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge



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or hypothecation or to execution, attachment, levy or similar process or assignment by operation
of law, and any attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect.



     25. Binding Effect.



     This Agreement shall be binding upon and inure to the benefit of Executive and Company and
their respective permitted successors and assigns. This Agreement shall not become effective and
Executive shall have no rights hereunder prior to receipt of all regulatory approvals from the
Company’s banking regulators.



     26. Modification and Waiver.



          (a) Amendment of Agreement.



     This Agreement may not be modified or amended except by an instrument in writing signed by
the parties hereto.



          (b) Waiver.



     No term or condition of this Agreement shall be deemed to have been waived nor shall there be
any estoppel against the enforcement of any provision of this Agreement, except by written
instrument of the party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate
only as to the specific term or condition for the future or as to any act other than that
specifically waived. No delay in exercising any rights shall be construed as a waiver, nor shall a
waiver on one occasion operate as a waiver of such right on any future occasion.



     27. Entire Agreement.



     The parties hereto acknowledge that each has read this Agreement, understand it, and agree to
be bound by its terms. The parties further agree that this Agreement contains all of the covenants
and agreements between the parties with respect to the employment of Executive by Company. Each
party to this Agreement acknowledges that no representations, inducements, promises or agreements,
orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which
is not embodied herein, and that no other agreement, statement or promise not contained in this
Agreement shall be valid and binding.



     28. Partial Invalidity.



     If any provision in this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the provision shall be deemed amended as necessary to conform to applicable
laws or regulations, or if it cannot be so amended without materially altering the intention of the
parties, the remaining provisions shall nevertheless continue in full force without being impaired
or invalidated in any way.



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     29. Governing Law.



     This Agreement shall be governed by and construed in accordance with the laws of the State of
California.



     30. Injunctive Relief.



     Company and Executive acknowledge and agree that the services to be performed under this
Agreement are of a special, unique, unusual, extraordinary and intellectual character which give
them a peculiar value, the loss of which cannot be reasonably or adequately compensated in damages
in an action at law. Company and Executive therefore expressly agree that Company and Executive,
in addition to any other rights or remedies which Company and Executive may possess, shall be
entitled to injunctive and other equitable relief to prevent a breach of this Agreement by
Executive and Company.



     31. Company Regulatory Agencies.



     The obligations and rights of the Parties hereunder are expressly conditioned upon the
approval or non-disapproval of (i) this Agreement and/or (ii) Executive, in the event such
approvals are required, by those banking regulatory agencies which have jurisdiction over Company
or any of its subsidiaries.



     32. Duplicate Originals.



     This Agreement may be executed simultaneously in one or more counterparts, each of which
shall be deemed an original, but all of which together constitute one and the same instrument.



     33. Compliance with Internal Revenue Code Section 409A.



          (a) Company and Executive agree that, notwithstanding anything herein to the contrary, this
Agreement is intended to be interpreted and operated so that the payment of the benefits set forth
herein either shall either be exempt from the requirements of section 409A of the Code or shall
comply with the requirements of such provision. References in this Agreement to section 409A of the
Code include rules, regulations, and guidance of general application issued by the Department of
the Treasury under section 409A of the Code. Executive hereby acknowledges that he has been advised
to seek and has sought the advice of a tax advisor with respect to the tax consequences to
Executive of all payments pursuant to this Agreement, including any adverse tax consequences or
penalty taxes under Code section 409A and applicable State tax law. Executive hereby agrees to bear
the entire risk of any such adverse federal and State tax consequences and penalty taxes in the
event any payment pursuant to this Agreement is deemed to be subject to Code Section 409A, that no
representations have been made to Executive relating to the tax treatment of any payment pursuant
to this Agreement under Code Section 409A and the corresponding provisions of any applicable State
income tax laws, and that in no event shall the Company be liable to Executive for or with respect
to any taxes, penalties or interest which may be imposed upon Executive pursuant to Section 409A.



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          (b) If, on the date of Executive’s Separation from Service, Executive is a
“specified employee”, as defined in section 409A of the Code, of the Company, and if any
payments or benefits under this Agreement payable upon Executive’s Separation from Service
will result in additional tax or interest to the Executive because of section 409A of the
Code, then
despite any provision of this Agreement to the contrary the Executive will not be entitled to
the
payments or benefits until the earlier of (x) the date that is six months and one day after
Executive’s Separation from Service for reasons other than the Executive’s death, and (y) the
date of the Executive’s death. After the end of the period during which payments or benefits
are
delayed under this provision, the entire amount of the delayed payments and benefits shall be
paid to the Executive in a single lump sum, without interest.



          (c) With respect to reimbursements and in-kind benefits made to Executive
pursuant to Sections 8 and 9, if any, which are not otherwise excludible from Executive’s
gross
income, to the extent required to comply with the provisions of section 409A of the Code, no
reimbursement of such expenses incurred by Executive during any taxable year of Executive
shall be made after the last day of the following taxable year, the amount of expenses
eligible for
reimbursement, or in-kind benefits provided, during a taxable year may not affect the expenses
eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, and
the
right to reimbursement of such expenses or such in-kind benefits shall not be subject to
liquidation or exchange for another benefit.



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     IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of the 27 day of
OCT, 2008.



	 	 	 	 	 
	     COMPANY: 	CAPITAL CORP OF THE WEST

 	 
	 	By:  	/s/ Jerry Callister
 	 
	 	 	Jerry Callister 	 
	 	 	Chairman — Board of Directors 	 
	 
	 	 	 
	     EXECUTIVE: 	  	/s/ Richard S. Cupp
 	 
	 	 	Richard S. Cupp 	 
	 	 	 	 
	 




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