Exhibit 10.3
EXECUTIVE
SEVERANCE AGREEMENT
This Severance Agreement ("Agreement") is made and entered into as of November
16, 1999 by and between Redwood Empire Bancorp and National Bank of the Redwoods
(collectively the "Employer"), and Xxxxx X. Xxxxxxxx ("Executive").
Employer desires to employ Executive and Executive desires to be employed by
Employer, for the period and under the terms and conditions set forth in this
document. Therefore, in consideration of the mutual covenants and conditions
contained in this Agreement, the parties agree to the following:
To establish by this Agreement a mutually agreed upon Severance Agreement in the
event that the Employer no longer desires to retain the services of the
Executive.
1. TERM
The term of this Agreement shall be for five (5) years, terminating November 16,
2004. However, nothing in this Agreement should be interpreted as modifying
Employer's policy of at-will employment. Employer shall have the right to
terminate the Agreement at any time in accordance with the provisions of Section
Three. If this Agreement is terminated in such manner, all rights and duties of
Executive and Employer per this Agreement shall end. "Term" shall refer to the
entire period of employment of Executive by Employer, whether for the period
described above, whether terminated earlier, or extended by mutual agreement.
Notice of intent to extend and/or renegotiate the Agreement may be given to
Executive by Employer at least six months prior to the end of the term. Employer
and Executive agree that this document contains the entire understanding and
agreement between them regarding employment. The at-will nature of this
employment cannot be amended or supplemented in any respect except by further
written agreement.
2. TERMINATION
Employer has the right to terminate this agreement for any of the following
reasons, by providing written notice to Executive:
a) Willful breach of or habitual neglect of or failure to perform or
inability to perform the Executive's duties and obligations, as determined
by Employer;
b) Conduct constituting a crime involving moral turpitude, illegal conduct or
conviction of a felony as determined by the Employer's legal counsel, or
any conduct detrimental to the interests of Employer as determined by the
Board of Directors;
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c) Physical or mental disability rendering Executive incapable of performing
the duties for which they are employed for a consecutive period of 180
days, or by death; or
d) Determination by the Board that the continued employment of Executive is
detrimental to the best interests of Employer, or for any reason
whatsoever as determined by the Board and in the sole and absolute
discretion of the Board.
I. If this Agreement is terminated for any of the reasons listed in
(a), (b), or (c) above, Executive will be paid one month's salary.
This termination pay will be considered to be in full and complete
satisfaction of any and all rights which Executive may enjoy under
the terms of this Agreement other than rights, if any, provided for
in other written agreements with Employer. Insurance benefits will
continue to be provided by Employer until the end of the month in
which termination occurs. If the Executive is terminated for the
reason listed in (c) above (disability), and he receives an enhanced
disability payment based on an Executive Salary Continuation
Agreement, or other agreement, which is greater than one month's
salary, then this one month's salary would not be paid.
II. If this Agreement is terminated for any reason listed in (d), above,
Executive shall be entitled to termination pay in a lump sum equal
to two (2) years salary inclusive of the accrued salary continuation
liability for the appropriate Plan year as referenced in an
Executive Salary Continuation Plan (if applicable) and any accrued
but unused vacation leave. This termination pay shall be considered
to be in full and complete satisfaction of any and all rights which
Executive may enjoy under the terms of this Agreement except for
rights, if any, provided for in other written contracts with
Employer. Any pay in lieu of vacation will be considered to be
included in this termination pay. Executive must sign a release of
liability in order to receive any termination pay representing three
months pay or more. Insurance benefits shall be continued to be
provided until the end of the month in which termination occurs.
III. If Executive is party to a separate salary continuation agreement in
his/her capacity as an executive then the termination benefits in
the salary continuation agreement are the only benefits that he will
receive upon termination initiated by change of control. Section 3
paragraph II with regards to the lump sum payment of the severance
agreement will not be applicable. However, all other terms and
conditions in Section 3 paragraph II will be applicable to a
termination initiated by the change of control agreement.
A change in job duties (including transfer to a different subsidiary) will not
constitute termination within this agreement.
Executive shall provide thirty days notice, in writing, in the event he
voluntarily terminates his employment.
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3. EMPLOYEE BENEFITS
Employer will provide Executive with all employee benefits afforded all other
employees, as outlined in the Employer's Employee Handbook and other employee
communications. Except as may be stated in this Agreement, Executive is subject
to the same changes in benefits and other related plans (additions,
modification, deletions) as every other employee of Employer.
Executive may also be eligible for participation in an Employer Stock Option
Plan and/or Executive Salary Continuation Plan, as determined by the appropriate
Board of Directors. These would be separate and stand-alone Agreements, and not
part of this Severance Agreement unless specifically referenced within the
Severance Agreement.
4. NONCOMPETITION AND CONFIDENTIALITY
In the event Executive's employment is involuntarily terminated for any reason
listed in section 3 (d) above, Executive shall not, for a period of one year,
directly or indirectly, without the prior written consent of Employer's Board of
Directors (i) own, manage, operate, control, finance or participate in the
ownership, management, operation, control or financing of, or be connected as an
officer, director, employee, partner, principal, agent, representative,
consultant or otherwise with, any business or enterprise engaged in any business
which is competitive with or similar to Employer's banking business, within
Sonoma County or a 25 mile radius of Employer's banking operations (the
"Territory"); (ii) engage in any other manner, within the Territory, in any
business that is competitive with or similar to Employer's banking operations;
or (iii) induce or attempt to induce any person who is a customer, supplier,
distributor, officer or employee of Employer immediately prior to Executive's
termination to terminate such person's relationships with, or to take any action
that would be disadvantageous to Employer. Notwithstanding the above, Executive
shall not be deemed to be engaged directly or indirectly in and business in
contravention of paragraphs (i) or (ii) above, if (1) Executive participates in
any such business solely as a passive investor in up to 10% of the equity
securities or 10% of the debt securities of a company or partnership, or (2)
Executive is employed by a business or enterprise that is engaged primarily in a
business other than that which is competitive with or similar to Employer's
banking operations and Executive does not apply his expertise at such business
or enterprise to that part of such business or enterprise that is competitive
with or similar to employer's business or banking operations.
In addition, throughout their employment and following any termination,
Executive shall not make any use of trade secrets and other confidential
information relating to the business and properties of Employer. Upon
termination, Executive shall deliver all confidential documents now possessed or
acquired later.
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5. CHANGE OF CONTROL
This Agreement shall not be terminated by the dissolution of Employer. However,
in the event proceedings for liquidation are commenced by the regulatory
authorities, this Agreement and all related rights and benefits shall terminate.
In the event of any merger or consolidation where Employer is not the surviving
or resulting corporation, or upon transfer of all or substantially all of the
assets of Employer, Executive shall be paid in accordance with the Executive
Salary Continuation Agreement (if such agreement is applicable), which is a
stand alone benefit program and not an Employment Agreement. This payment, if
applicable, shall be considered to be in full and complete satisfaction of any
and all rights which Executive may enjoy under the terms of this Agreement
except for rights, if any, provided for in other written contracts with
Employer.
6. RETURN OF DOCUMENTS & TRADE SECRETS
Executive agrees that all manuals, documents, programs, files, reports, studies,
instruments or other materials used and/or developed by Executive during the
term of employment are the sole property of Employer. Upon termination of this
Agreement, Executive or a representative shall promptly deliver all such
property to Employer, in good condition.
Without limiting the generality of section 5 above, and at all times after the
date of Executive's termination of employment with Employer, Executive (i) shall
make no use of any and all secrets and other confidential information, ideas,
knowledge, know-how, techniques, secret processes, improvements, discoveries,
methods, inventions, sales financial information, customer lists, plans,
concepts, strategies or products, as well as all documents, reports, drawings,
designs, plans and proposals otherwise pertaining to same, relating to the
business and properties of Employer of which Executive has acquired, or may
hereafter acquire, knowledge and possession as the Chief Executive Officer
(hereinafter referred to as "Trade Secrets"), or any other part thereof, (ii)
shall not disclose the Trade Secrets, or any other part thereof, to any other
person, and (iii) shall deliver, on and after Executive's termination, all
documents, reports, drawings, designs, plans, proposals, and other tangible
evidence of Trade Secrets, now possessed or hereafter acquired by Executive, to
Employer.
7. NOTICES
Any notice or other communication required or permitted by this Agreement shall
be considered to be properly given when personally served in writing, when
delivered via the US mail, or when communicated via facsimile, addressed as
follows:
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To Employer: To Executive:
Redwood Empire Bancorp Xxxxx X. Xxxxxxxx
000 Xxxxx Xxxx Xxxxxx 00000 Xxxx Xx Xxxxxx Xxxxx
Xxxxx Xxxx, XX 00000 El Xxxxxx, XX 00000
Attn.: Board of Directors
8. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of California, except to the extent governed by the laws of the United
States.
9. PARAGRAPH HEADINGS
Paragraph headings used in this Agreement are for convenience only, and are not
a part of this Agreement and shall not be used in construing it.
10. INVALID PROVISIONS
If any provision of this Agreement is, for any reason, declared invalid, void or
unenforceable, the remaining portions shall continue in full force without being
affected in any way.
11. CONFIDENTIALITY
This agreement is to be held confidential. Breach of this confidentiality by
Executive will make him subject to termination under this Agreement.
12. ARBITRATION
If any disputes arise under this Agreement, the parties will first make a good
faith attempt at mediation. If this attempt is not successful, any remaining
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled pursuant to an arbitration agreement to be entered
into by the parties. In the event there is no arbitration agreement, the rules
of judicial arbitration will be used. Judgment upon the award rendered by the
arbitrator(s) may be entered into any court having jurisdiction.
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13. LEGAL COSTS
If either party commences an action against the other party arising out of or in
connection with this Agreement, the prevailing party shall be entitled to have
and recover reasonable attorney's fees and costs of suit or arbitration from the
losing party.
If an arbitration agreement is in place, costs will be covered per that
agreement. If a mediator is used, the parties will share said costs.
REDWOOD EMPIRE BANCORP EXECUTIVE
NATIONAL BANK OF THE REDWOODS
By: /s/ Xxx Xxxxxxxx /s/ Xxxxx X. Xxxxxxxx
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Xxx Xxxxxxxx Xxxxx X. Xxxxxxxx
Chairman of the Board
Date: November 16, 1999 Date: November 16, 1999
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