**Exhibit 10.a**
EXECUTION
EMPLOYMENT AGREEMENT
     EMPLOYMENT AGREEMENT (this “Agreement”) dated as of September 1, 2004among Bay View Capital Corporation, a Delaware corporation having its principalplace of business at 1840 Gateway Drive, San Mateo, CA 94404 (“BVCC”), Bay ViewAcceptance Corporation, a Nevada corporation having its principal place ofbusiness at 818 Oak Park Road, Covina, CA 91724 (“BVAC”), and P.K. Chatterjee,an individual residing at 25 Falling Oaks Trail, Austin, Texas 78738 (the“Executive”).
WITNESSETH:
     WHEREAS, BVAC is a wholly owned subsidiary of BVCC;
     WHEREAS, BVCC and BVAC (collectively, the “Employers”) desire to employthe Executive, and the Executive desires to be employed by the Employers, allin accordance with the terms and subject to the conditions set forth herein;and
     WHEREAS, the parties are entering into this Agreement to set forth andconfirm their respective rights and obligations with respect to the Executive’semployment by the Employers;
     NOW, THEREFORE, in consideration of the premises and the mutual covenantsherein contained, the parties hereto, intending to be legally bound hereby,mutually agree as follows:
     1.      Employmentand Term.
           (a)      Effective on September 7, 2004 (the “Effective Date”), (i) BVCC shallemploy the Executive, and the Executive shall be employed by BVCC, as theExecutive Vice President and Director of Retail Operations of BVCC and (ii)BVAC shall employ the Executive, and the Executive shall be employed by BVAC,as the President and Chief Executive Officer of BVAC (with all such positionsdescribed in clauses (i) and (ii) hereof being collectively referred to hereinas the “Position”), in accordance with the terms and subject to the conditionsset forth herein for a term (the “Term”) that shall commence on the EffectiveDate and, subject to paragraphs 1(b), 1(c), 1(d) and 1(e), shall continue for aperiod of three years. BVCC and BVAC shall be jointly and severally liable tothe Executive with respect to (i) all liabilities of BVAC to the Executivehereunder and (ii) all liabilities of BVCC to the Executive hereunder;provided, however, that BVCC shall not be responsible for any
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liability of BVAC to the Executive to the extent that such liability hasbeen discharged by BVAC, and BVAC shall not be responsible for any liability ofBVCC to the Executive to the extent that such liability has been discharged byBVCC. Promptly following the Effective Date, BVAC agrees to elect theExecutive as a member of its Board of Directors.
           (b)      Unless written notice in accordance with this paragraph 1 terminatingthe automatic extension of the term of the Executive’s employment hereunder isgiven by either of the Employers or the Executive, on each day this Agreementis in effect, the Term shall be automatically extended for one additional dayso that at all times this Agreement shall have a then current three-year Term.Unless otherwise provided herein or agreed by the parties hereto, all of theterms and conditions of this Agreement shall continue in full force and effectthroughout the Term and, with respect to those terms and conditions that applyafter the Term, after the Term.
           (c)      Notwithstanding paragraph 1(b), the Employers, by action of theirBoards of Directors (the “Boards”) and effective as specified in a writtennotice thereof to the Executive in accordance with the terms hereof, shall havethe right to terminate the Executive’s employment hereunder at any time duringthe Term hereof for Cause (as defined herein) or other than for Cause or onaccount of the Executive’s death or Permanent Disability (as defined herein),subject to the provisions of this paragraph 1.
                     (i)      “Cause” shall mean (A) the Executive’s willful and continued failuresubstantially to perform his material duties with the Employers as set forth inthis Agreement, or the commission by the Executive of any activitiesconstituting a violation or breach under any material federal, state or locallaw or regulation applicable to the activities of BVAC or BVCC, in each case,after notice thereof from the Employers to the Executive and a reasonableopportunity for the Executive to cease such failure, breach or violation in allmaterial respects, (B) fraud, breach of fiduciary duty, dishonesty,misappropriation or other intentional material damage to the property orbusiness of BVAC or BVCC by the Executive, (C) the Executive’s repeatedabsences other than for physical or mental impairment or illness, (D) theExecutive’s admission or conviction of, or plea of nolo contendere to, anyfelony or any other crime that, in the reasonable judgment of the Boards,adversely affects BVAC’s or BVCC’s reputation or the Executive’s ability tocarry out his obligations under this Agreement or (E) the Executive’snon-compliance with the provisions of paragraph 2(b) hereof after noticethereof from the Employers to the Executive and a reasonable opportunity forthe Executive to cure such non-compliance. Notwithstanding the foregoing, theEmployers may not terminate the Executive’s employment hereunder for Causeunless the Executive is given (A) written notice, in accordance with theBy-laws of the Employers, of a special meeting of the Boards to consider thetermination of the Executive’s employment hereunder for Cause and (B) theopportunity for the Executive to address such special meeting.
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                     (ii)      “Permanent Disability” shall mean a physical or mental disabilitysuch that the Executive is substantially unable to perform those duties that hewould otherwise be expected to continue to perform and the nonperformance ofsuch duties has continued for a period of 240 consecutive days, provided,however, that in order to terminate the Executive’s employment hereunder onaccount of Permanent Disability, the Employers must provide the Executive withwritten notice of the Boards’ good faith determination to terminate theExecutive’s employment hereunder for reason of Permanent Disability not lessthan 30 days prior to such termination, which notice shall specify the date oftermination. Until the specified effective date of termination by reason ofPermanent Disability, the Executive shall continue to receive compensation atthe rates set forth in paragraph 3. No termination of the Executive’semployment hereunder because of Permanent Disability shall impair any rights ofthe Executive under any disability insurance policy maintained by the Employersat the commencement of the aforesaid 240-day period.
           (d)      The Executive shall have the right to terminate his employmenthereunder at any time during the Term hereof for Good Reason or in the event aChange in Control occurs. As used herein:
                     (i)      “Good Reason” shall mean (A) the Executive’s Position or the scope ofthe Executive’s authority, duties or responsibilities as described in thisAgreement are materially diminished without the Executive’s written consent,excluding for this purpose any action not taken by the Employers in bad faithand that is remedied by the Employers promptly following written notice thereoffrom the Executive to the Employers; (B) a material breach by either Employerof its respective obligations to the Executive under this Agreement, whichbreach is not cured in all material respects to the reasonable satisfaction ofthe Executive within 30 days (except in the case of a payment default for whichthe cure period shall be 10 days), in each case following written noticethereof from the Executive to the Employers or (C) any termination of theExecutive’s employment hereunder without Cause; and
                     (ii)      “Change in Control” shall mean the first to occur of (A) theacquisition of shares of BVCC by any “person” or “group” (as such terms areused in Rule 13d-3 under the Securities Exchange Act of 1934 as now orhereafter amended) in a transaction or series of transactions that result insuch person or group directly or indirectly first owning beneficially more than50% of BVCC’s Common Stock after the date of this Agreement or (B) theconsummation of a merger or other business combination after which the holdersof voting capital stock of BVCC do not collectively own 50% or more of thevoting capital stock of the entity surviving such merger or other businesscombination (any of the foregoing being referred to herein as a “Transaction”).A Transaction constituting a Change in Control shall only be deemed to haveoccurred upon the closing of the Transaction.
           (e)   (i)      If (A) the Employers terminate the Executive’s employmenthereunder for any reason other than for Cause and such termination occurs as ofa date that
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is within 270 days preceding or within 180 days after the consummation ofa Change in Control (such 270-day period and such 180-day period beinghereinafter collectively referred to as a “Change in Control Period”), (B) thisAgreement is terminated as a result of the death or Permanent Disability of theExecutive effective as of a date within a Change in Control Period, (C) theExecutive terminates his employment hereunder for Good Reason effective as of adate within a Change in Control Period or (D) the Executive elects to terminatehis employment hereunder within 180 days after the consummation of a Change inControl, the Employers shall pay to the Executive or his estate, provided theExecutive or his estate concurrently signs and delivers to the Employers ageneral release in a form mutually acceptable to the Employers and theExecutive, promptly after the event giving rise to such payment occurs anamount equal to the sum of (y) (1) the Executive’s Base Salary (as definedherein) accrued but unpaid through the date the termination of the Executive’semployment hereunder is effective, (2) the Incentive Bonus (as defined herein)payable to the Executive pursuant to paragraph 3(b)(i) for such year whichshall be determined by multiplying the average percentage of the Executive’sBase Salary paid to the Executive as an Incentive Bonus for all full years ofemployment hereunder prior to the year in which the Change in Control occurs bythe Executive’s Base Salary on the date of the Change in Control, provided thatBVAC is on track to achieve all performance goals for such year and (3) anyamount in respect of excise taxes required to be paid to the Executive pursuantto paragraph 1(f), with such payments, rights and benefits described in clauses(y)(1), (y)(2) and (y)(3) hereof being collectively referred to herein as the“Accrued Obligations and (z) a severance payment equal to 2.99 times the sum of(1) the Executive’s annual Base Salary as of the effective date of terminationof the Executive’s employment hereunder and (2) the Incentive Bonus payable tothe Executive pursuant to paragraph 3(b)(i) for the year in which suchtermination is effective calculated based on the average percentage for allfull years of employment hereunder prior to the year in which such terminationoccurs.
                     (ii)      If (A) the Employers terminate the Executive’s employment hereunderfor any reason other than for Cause effective as of a date that is not within aChange in Control Period or (B) the Executive terminates his employmenthereunder for Good Reason effective as of a date that is not within a Change inControl Period, the Employers shall pay the Executive, provided the Executiveconcurrently signs and delivers to the Employers a general release in a formmutually acceptable to the Employers and the Executive, an amount equal to thesum of (y) the Accrued Obligations and (z) the amount of Base Salary theExecutive would have received had he remained employed hereunder for theremainder of the Term.
                     (iii)      If (A) the Employers terminate the Executive’s employment hereunderfor Cause, (B) the Executive terminates his employment hereunder for any reasonother than Good Reason, his death or Permanent Disability or (C) this Agreementis terminated by the Employers as a result of the death or Permanent Disabilityof the Executive
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effective as of a date that is not within a Change in Control Period, the soleobligation of the Employers shall be to pay the Accrued Obligations to theExecutive.
                     (iv)      The Employers and the Executive shall each have the right, upon priorwritten notice delivered to the other on or prior to August 1, 2005, toterminate Executive’s employment without Cause effective as of September 30,2005. In the event of a termination of the Executive’s employment pursuant tothis paragraph 1(e)(iv) that is within a Change in Control Period, theEmployers shall pay the Executive, provided the Executive concurrently signsand delivers to the Employers a general release in a form mutually acceptableto the Employers and the Executive, an amount equal to the sum of (y) theAccrued Obligations and (z) a severance payment equal to 2.99 times the sum of(1) the Executive’s annual Base Salary as of the effective date of terminationof the Executive’s employment hereunder and (2) the Incentive Bonus payable tothe Executive pursuant to paragraph 3(b)(i) for 2004. In the event of atermination of the Executive’s employment pursuant to this Section 1(e)(iv)that is not within a Change in Control Period, the Employers shall pay theExecutive, provided the Executive concurrently signs and delivers to theEmployers a general release in a form mutually acceptable to the Employers andthe Executive, an amount equal to the sum of (y) the Accrued Obligations and(z) the amount of Base Salary the Executive would have received had he remainedemployed hereunder for one year from the date of the Executive’s termination.
           (f)      In the event that the independent public accountants of either of theEmployers or the Internal Revenue Service determines that any payment, coverageor benefit provided to the Executive pursuant hereto is subject to the excisetax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended(the “Code”) or any successor provision thereof or any interest or penaltiesincurred by the Executive with respect to such excise tax (such excise tax,together with any such interest and penalties, are hereinafter collectivelyreferred to as the “Excise Tax”), the Employers, within 30 days thereafter,shall pay to the Executive, in addition to any other payment, coverage orbenefit due and owing hereunder, an amount determined by multiplying the rateof Excise Tax then imposed by Section 4999 by the amount of the “excessparachute payment” received by the Executive, determined without regard to anypayments made to the Executive pursuant to this paragraph 1(f), and dividingthe product so obtained by the amount obtained by subtracting the aggregatelocal, state and federal income and FICA and health insurance taxes applicableto the receipt by the Executive of the “excess parachute payment” and takinginto account the deductibility for federal income tax purposes of the paymentof state and local income taxes thereon (as affected by those provisions of theCode that act to reduce the deductibility of itemized deductions), from theamount obtained by subtracting from 1.00 the rate of Excise Tax then imposed bySection 4999 of the Code, it being the intention of the parties hereto that theExecutive’s net after tax position (after taking into account any interest orpenalties imposed with respect to such taxes) upon the receipt of the paymentsprovided for by this Agreement be no less advantageous to the Executive thanthe net after tax position to the
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Executive that would have been obtained had Sections 280G and 4999 of theCode not been applicable to such payments. Except as otherwise providedherein, all determinations to be made under this paragraph 1(f) shall be madeby tax counsel whose selection shall be reasonably acceptable to the Executiveand the Employers and whose fees and costs shall be paid for by the Employers.
           (g)      Any notice of termination of this Agreement by the Employers to theExecutive or by the Executive to the Employers shall be given in accordancewith the provisions of paragraph 10 hereof.
           (h)      The Employers agree to reimburse the Executive for the reasonable feesand expenses of the Executive’s attorneys and for court and related costs inany proceeding to enforce the provisions of this Agreement in which theExecutive is successful on the merits.
     2.    Dutiesof the Executive.
           (a)      Subject to the ultimate control and discretion of the Boards of theEmployers, the Executive shall serve in the Position and perform all duties andservices commensurate with the Position. Throughout the Term, the Executiveshall perform all duties reasonably assigned or delegated to him under theBy-laws of BVAC and BVCC or from time to time by the Boards of the Employers orthe Chief Executive Officer of BVCC consistent with the Position. Except fortravel normally incidental and reasonably necessary to the business of BVAC andBVCC and the duties of the Executive hereunder, the duties of the Executiveshall be performed in the greater Los Angeles, California metropolitan area.
           (b)      The Executive shall devote substantially all of the Executive’sbusiness time and attention to the performance of the Executive’s dutieshereunder and, during the term of his employment hereunder, the Executive shallnot engage in any other business enterprise that requires any significantamount of the Executive’s personal time or attention, unless granted the priorpermission of the Boards. The Boards have approved the Executive’s position asa member and 10%-owner of Battle Advisory Group, LLC. The foregoing provisionshall not prevent the Executive’s purchase, ownership or sale of any interestin, or the Executive’s engaging (but not to exceed an average of five hours perweek) in, any business that does not compete with the business of BVAC or BVCCor the Executive’s involvement in charitable or community activities, provided,that the time and attention that the Executive devotes to such business andcharitable or community activities does not materially interfere with theperformance of his duties hereunder and that a material portion of the timedevoted by the Executive to charitable or community activities are devoted tocharitable or community activities within BVAC’s market area and furtherprovided that such conduct complies in all material respects with applicablepolicies of BVAC and BVCC.
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           (c)      The Executive shall be entitled to six weeks of vacation during eachcalendar year with full compensation, and to be taken at such time or times, asthe Executive and BVAC shall mutually determine. Earned but unused vacationshall be accrued in accordance with BVCC’s vacation policy of 20 hours permonth.
     3.    Compensation. For all services to be rendered by the Executivehereunder:
           (a)      BaseSalary. The Employers shall pay the Executive a base salary (the“Base Salary”) at a monthly rate of Twenty-Five Thousand Dollars ($25,000),plus such other compensation as may, from time to time, be determined by theEmployers. At the end of each fiscal year of the Employers, the Employersshall review the amount of the Executive’s Base Salary, and shall increase suchBase Salary for the following year to such amount as the Boards may determinein their discretion. Such Base Salary and other compensation shall be payablein accordance with the Employers’ normal payroll practices as in effect fromtime to time.
           (b)      Bonus. The Employers agree that the Executive shall be eligible toreceive, in accordance in all material respects with applicable policies ofBVCC relating to incentive compensation for executive officers, an annual bonus(the “Bonus”) payable in cash, determined as follows:
                     (i)      an annual performance incentive bonus (the “Incentive Bonus”),determined in the discretion of the Boards, of up to 50% of the Executive’sBase Salary, based upon BVAC’s and the Executive’s attainment of performancegoals established by the Boards, which Incentive Bonus for 2004 shall bepro-rated based on the fact that the Executive served the Employers for onlyfour months of 2004.
                     (ii)      In the event that BVAC and the Executive exceed all pre-determinedperformance goals for a calendar year, an annual supplemental bonus (the“Supplemental Bonus”), determined in the discretion of the Boards, of up to 2%of the amount by which BVAC’s pre-tax profit for such calendar year exceedsBVAC’s pre-tax profit for the immediately preceding calendar year. In the caseof 2004 only, the Supplemental Bonus shall be determined, in the discretion ofthe Boards, based upon the amount by which BVAC’s pre-tax profit for 2004exceeds $6,434,000.
           (c)      StockOptions. Subject to any required stockholder approval, BVCChereby grants the Executive options (the “Options”) to purchase an aggregate of50,000 shares of BVCC’s Common Stock at a price per share equal to 100% of theclosing price of BVCC’s Common Stock on the New York Stock Exchange on the dateof grant (the “Exercise Price”). Of the Options, Options to purchase 5,000shares shall be incentive stock options and Options to purchase 45,000 sharesshall be non-qualified stock options. The Exercise Price of the Options may bereduced from time to time in the discretion of the Board by the per shareamount of any cash distribution to BVCC’s stockholders arising from BVCC’s Planof Partial
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Liquidation. The Options shall be subject to the terms and conditions ofthe BVCC stock option agreement or agreements pursuant to which the Options aregranted, and shall have the following other principal terms:
                     (i)      the Options shall become exercisable and be vested, and remainexercisable and vested for a term of five years from and after the EffectiveDate, in three cumulative installments as follows:
                              (A)      the first installment, consisting of an incentive stock option topurchase 5,000 shares and a non-qualified stock option to purchase 11,667shares of BVCC’s Common Stock, shall become exercisable from and after firstanniversary the Effective Date;
                              (B)      the second installment, consisting of non-qualified stock options topurchase 16,666 shares of BVCC’s Common Stock, shall become exercisable fromand after the second anniversary of the Effective Date; and
                              (C)      the third installment, consisting of non-qualified options to purchase16,666 shares of BVCC’s Common Stock, shall become exercisable from and afterthe third anniversary of the Effective Date;
                     (ii)      the Options shall become immediately exercisable and shall remainexercisable for the remainder of their term in the event of (A) a Change inControl of BVCC, (B) the sale of all or substantially all of the capital stockor assets of BVAC to a party other than an affiliate of the Employers, butexcluding therefrom any securitization of BVAC’s assets, (C) a termination ofthis Agreement by the Employers without Cause or (D) a termination of thisAgreement by the Executive for Good Reason;
                     (iii)      the Options shall terminate immediately in the event of (A) atermination of this Agreement by the Employers for Cause or (B) a terminationof this Agreement by the Executive without Good Reason;
                     (iv)      the Options shall remain exercisable until the earlier of theexpiration of their term or three years after the termination of this Agreementby the Employers because of the Executive’s death or Permanent Disability andthe Options shall become immediately exercisable if such termination occursduring the 270 days preceding consummation of a Change in Control;
                     (v)      in the event that after the Effective Date the outstanding shares ofBVCC Common Stock subject to the Options are increased or decreased or changedinto or exchanged for a different number or kind of shares of BVCC or othersecurities of BVCC or of another corporation by reason of a reorganization,merger, consolidation, reclassification, stock split, reverse stock split,stock dividend or combination of shares of Common Stock, the Board of Directorsof BVCC shall make an appropriate and equitable adjustment in the
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number and kind of shares as to which the Options or portion thereof thenunexercised shall be exercisable and in the Exercise Price. Such adjustment inthe Options shall be made without any change in the total price applicable tothe unexercised portion of the Options, except for any change in the aggregateprice resulting from rounding-off of share amounts or prices, and with anynecessary corresponding adjustment in the Exercise Price.
           (d)      OtherBenefits. Throughout the Term:
                     (i)      The Employers shall provide the Executive with an automobile at theEmployers’ sole cost and expense. Such automobile shall be owned or leased byBVCC or BVAC. The Employers shall bear all gas, insurance, repairs,maintenance, car telephone and other business operating expenses for theautomobile.
                     (ii)      In connection with his relocation to the greater Los Angeles area,the Executive shall be entitled to receive: (A) reimbursement of allreasonable expenses for housing and needs for the first month of theExecutive’s employment and (B) commencing with the second month of theExecutive’s employment, $3,000 per month (grossed-up for taxes) for temporaryhousing in the greater Los Angeles area for the lesser of twelve months or thedate on which the Executive takes possession of a purchased residence in thegreater Los Angeles area; provided, however, that upon expiration of suchtwelve-month period, the Compensation Committee of BVCC may consider anextension of the temporary housing allowance if so requested by the Executive.
                     (iii)      The Employers shall reimburse the Executive for the cost of not morethan twelve first-class airfares for the Executive and Executive’s immediatefamily between Texas and California.
                     (iv)      Commencing on the first day of the month following the EffectiveDate, the Executive shall be eligible to participate in BVCC’s 401(k) plan inaccordance with the terms and conditions thereof as the same are in effect fromtime to time. Commencing on the first anniversary of the Effective Date, BVCCwill annually match 50% of the Executive’s contribution to the 401(k) plan upto 6% of the Executive’s Base Salary.
                     (v)      During the first 90 days of the Executive’s employment, the Employerswill reimburse the Executive for COBRA health insurance premiums paid by theExecutive for himself and his family. If the Executive elects not toparticipate in the Employer’s health insurance plans, the Employers will paythe Executive $450 per month to defray the cost of health insurance coverage.
                     (vi)      If the Executive sells his current primary residence in Texas andpurchases a primary residence in the Los Angeles metropolitan area, theEmployers will reimburse the Executive for his actual and reasonably documentedcosts of his relocation to the Los Angeles metropolitan area and the costs ofselling his current primary residence in
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Texas and of purchasing a new primary residence in the Los Angelesmetropolitan area, exclusive of the purchase price thereof and costs related toobtaining financing of such purchase price. The Employers will also reimbursethe Executive for any amount by which the fair market sale price of theExecutive’s current primary residence in Texas is less than the sum of thepurchase price the Executive paid for such residence and any reasonablydocumented capital improvements to such residence.
                     (vii)      The Employers will reimburse the Executive for the membership duesof a social club in Southern California in such amount as is mutually agreed.
                     (viii)      The compensation provided for in this paragraph 3 shall be inaddition to such rights as the Executive may have, during the Executive’semployment hereunder, to participate in and receive benefits from or under anybenefit plans the Employers currently maintain or may in their discretionestablish in the future for their employees or executives. To the extent anyof such benefits are taxable to the Executive, the Executive shall be solelyresponsible for such taxes.
           (e)      BVCCBoard Membership. BVCC acknowledges that it intends to recommendto the Nominating Committee of BVCC’s Board of Directors that it nominate theExecutive for election as a director of BVCC at BVCC’s April 2005 annualmeeting of stockholders.
     4.    Expenses. The Employers shall promptly reimburse the Executive for allreasonable expenses paid or incurred by the Executive in connection with theperformance of the Executive’s duties and responsibilities hereunder, uponpresentation of expense vouchers or other appropriate documentation therefor,and all reasonable professional expenses, such as licenses and dues andprofessional educational expenses, paid or incurred by the Executive during theTerm.
     5.    Indemnification. Notwithstanding anything in the Employers’certificate of incorporation or their By-laws to the contrary, the Executiveshall at all times during his employment by the Employers, and thereafter, beindemnified by the Employers to the fullest extent permitted by applicable lawfor any matter in any way relating to the Executive’s affiliation with theEmployers and their respective subsidiaries; provided, however, that if theExecutive’s employment shall have been terminated by the Employers for Cause,then the Employers shall have no obligation whatsoever to indemnify theExecutive for any claim arising out of the matter for which his employmentshall have been terminated for Cause or for any conduct of the Executive notwithin the scope of the Executive’s duties under this Agreement.
     6.    ConfidentialInformation. The Executive understands that in the courseof his employment by the Employers the Executive will receive confidentialinformation concerning the business of the Employers and that the Employersdesire to protect. The Executive agrees
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that he will not at any time during or after the period of his employmentby the Employers reveal to anyone outside BVAC or BVCC, or use for his ownbenefit, any such information that has been designated as confidential by theEmployers or understood by the Executive to be confidential without specificwritten authorization by the Employers. Upon termination of this Agreement,and upon the request of the Employers, the Executive shall promptly deliver tothe Employers any and all written materials, records and documents, includingall copies thereof, made by the Executive or coming into his possession duringthe Term and retained by the Executive containing or concerning confidentialinformation of the Employers and all other written materials furnished to andretained by the Executive by the Employers for his use during the Term,including all copies thereof, whether of a confidential nature or otherwise.
     7.    Representationand Warranty of the Executive. The Executive representsand warrants that he is not under any obligation, contractual or otherwise, toany other firm or corporation, which would prevent his entry into the employ ofthe Employers or his performance of the terms of this Agreement.
     8.    EntireAgreement; Amendment. This Agreement contains the entireagreement between the Employers and the Executive with respect to the subjectmatter hereof, and may not be amended, waived, changed, modified or dischargedexcept by an instrument in writing executed by the parties hereto.
     9.    Assignability. This Agreement shall be binding upon, and inure to thebenefit of, the Employers and their successors and assigns. This Agreementshall not be assignable by the Executive, but shall inure to the benefit of theExecutive’s heirs, executors, administrators and legal representatives.
     10.    Notice. Any notice that may be given hereunder shall be in writingand be deemed given when hand delivered and acknowledged or, if mailed, one dayafter mailing by registered or certified mail, return receipt requested, or ifdelivered by an overnight delivery service, one day after the notice isdelivered to such service, to either party hereto at their respective addressesstated above, or at such other address as either party may by similar noticedesignate. Copies of such notices also shall be sent to the Employersattention: General Counsel, 1840 Gateway Drive, San Mateo, California 94404 andto the Executive’s counsel, attention:_______________________________________.
     11.    Specific Performance. The parties agree that irreparable damage wouldoccur in the event that any of the provisions of paragraph 6 were not performedin accordance with their specific terms or were otherwise breached. It isaccordingly agreed that the parties shall be entitled to an injunction orinjunctions to prevent breaches of paragraph 6 and to enforce specifically theterms and provisions of paragraph 6 hereof, this being in addition to any otherremedy to which any party is entitled at law or in equity.
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     12.    NoThird Party Beneficiaries. Nothing in this Agreement, express orimplied, is intended to confer upon any person or entity other than the parties(and the Executive’s heirs, executors, administrators and legalrepresentatives) any rights or remedies of any nature under or by reason ofthis Agreement.
     13.    SuccessorLiability. The Employers shall require any subsequentsuccessor, whether direct or indirect, by purchase, merger, consolidation orotherwise, to all or substantially all of the business or assets of theEmployers to assume expressly and agree to perform this Agreement in the samemanner and to the same extent that the Employers would be required to performit if no such succession had taken place.
     14.    Mitigation. The Executive shall not be required to mitigate theamount of any payment provided for in this Agreement by seeking otheremployment or otherwise, nor shall the amount of any payment or benefitprovided for in this Agreement be reduced by any compensation earned by theExecutive as the result of employment by another employer or by retirementbenefits payable after the termination of this Agreement, except that theEmployers shall not be required to provide the Executive and his eligibledependents with medical insurance coverage as long as the Executive and hiseligible dependents are receiving comparable medical insurance coverage fromanother employer.
     15.    Arbitration. Any dispute that may arise between the parties hereto,including, without limitation, any dispute arising out of or relating to thisAgreement, shall be submitted to binding arbitration in accordance with theRules of the American Arbitration Association, except for any dispute excludedfrom arbitration by law; provided that any such dispute shall first besubmitted to the Boards in an effort to resolve such dispute without resort toarbitration, and provided, further, that the Boards shall have a period of 60days within which to respond to the Executive’s submitted dispute, and if theBoards fail to respond within said time, or the Executive’s dispute is notresolved, the matter shall then be submitted for arbitration. The results ofany arbitration pursuant to this Agreement shall be final and binding on theparties hereto.
     16.    Waiverof Breach. The failure at any time to enforce or exercise anyright under any of the provisions of this Agreement or to require at any timeperformance by the other parties of any of the provisions hereof shall in noway be construed to be a waiver of such provisions or to affect either thevalidity of this Agreement or any part hereof, or the right of any partyhereafter to enforce or exercise its rights under each and every provision inaccordance with the terms of this Agreement.
     17.    NoAttachment. Except as required by law, no right to receivepayments under this Agreement shall be subject to anticipation, commutation,alienation, sale, assignment, encumbrance, charge, pledge or hypothecation orto execution, attachment, levy or similar process or assignment by operation oflaw, and any attempt, voluntary or involuntary, to effect any such action shallbe null, void and of no effect; provided, however, that nothing in
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this paragraph 17 shall preclude the assumption of such rights byexecutors, administrators or other legal representatives of the Executive orhis estate and their assigning any rights hereunder to the person or personsentitled hereto.
     18.    Severability. The invalidity or unenforceability of any term, phrase,clause, paragraph, restriction, covenant, agreement or other provision hereofshall in no way affect the validity or enforceability of any other provision,or any part thereof, but this Agreement shall be construed as if such invalidor unenforceable term, phrase, clause, paragraph, restriction, covenant,agreement or other provision had never been contained herein unless thedeletion of such term, phrase, clause, paragraph, restriction, covenant,agreement or other provision would result in such a material change as to causethe covenants and agreements contained herein to be unreasonable or wouldmaterially and adversely frustrate the objectives of the parties as expressedin this Agreement.
     19.    Survivalof Benefits. Any provision of this Agreement that provides abenefit to the Executive and that by the express terms hereof does notterminate upon the expiration of the Term shall survive the expiration of theTerm and shall remain binding upon the Employers until such time as suchbenefits are paid in full to the Executive or his estate.
     20.    Construction. This Agreement shall be governed by and construed inaccordance with the internal laws of the State of California, without givingeffect to principles of conflict of laws. All headings in this Agreement havebeen inserted solely for convenience of reference only, are not to beconsidered a part of this Agreement and shall not affect the interpretation ofany of the provisions of this Agreement.
     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as ofthe date first written above.    BAY VIEW CAPITAL CORPORATIONBy: /s/ John Okubo