North Coast Bank
President & Chief Executive Officer
Employment Agreement
This agreement made and entered into this SIXTEENTH day of DECEMBER,
0000, xxxxxxx Xxxxx Xxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx ("the Bank") and Xxxxx X.
Xxxxxxx, ("Employee");
WHEREAS, the Bank is a national bank, regulated by the Office of the
Comptroller of the Currency, insured by the Federal Deposit Insurance
Corporation, and located in Santa Rosa, California; and
WHEREAS, the Bank wants to employ the Employee as President and Chief
Executive Officer of the Bank; and
WHEREAS, the parties desire to enter into this agreement setting forth
the terms and conditions of the employment relationship of the Bank and the
Employee;
NOW, THEREFORE, it is agreed as follows:
A. ESTABLISH RELATIONSHIP AND DUTIES
1. The Bank hereby will employ Employee as President and Chief
Executive Officer, to hold the title of President and Chief
Executive Officer, and to perform such services and duties as the
Board of Directors may, from time to time, designate during the
term hereof. Subject to the terms and conditions hereof, Employee
will perform such duties and exercise such authority as are
customarily performed and exercised by persons holding such
office, subject to the general direction of the Board of
Directors of the Bank, exercised in good faith in accordance with
standards of reasonable business judgment and safety and
soundness within the confines of the law.
2. Employee shall serve on the Board of Directors of the Bank
subject to the terms hereof.
3. Employee accepts such employment and shall devote her full time,
attention, and efforts to the due diligent performance of her
duties herein specified and as an officer and director of the
Bank and will not accept employment with any other individual,
corporation, partnership, governmental authority, or any other
entity, or engage in any other venture for profit which the Bank
may consider to be in conflict with her or its best interest or
to be in competition with the Bank's business, or which may
interfere in any way with Employee's performance of her duties
hereunder. Any exception to this must be made by written
notification and approval of the Board.
B. TERMS OF EMPLOYMENT
1. The initial term of employment under this Agreement shall
continue for three (3) years unless such agreement is terminated
pursuant to the terms hereof or by the first to occur of the
conditions to be stated hereinafter. This Agreement will be
automatically extended each year after the initial term unless
either party gives contrary written notice to the other 90 days
prior to the renewal anniversary date. The terms previously
stated notwithstanding, this contract will be terminated by the
occurrence of any of the following:
a. The death of Employee;
b. The complete disability of Employee. "Complete disability"
as used herein shall mean the inability of Employee, due to
illness, accident, or other physical or mental incapacity to
perform the services provided for hereunder for an aggregate
of sixty days within any period of 120 consecutive days
during the term hereof, provided, however that said
disability shall not constitute a basis for discharge for
cause;
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c. The discharge of Employee by the Bank for cause. "Cause" as
used herein shall mean:
1. such negligence or misconduct as shall constitute, as
a matter of law, a breach of the covenants and
obligations of Employee hereunder;
2. failure or refusal of Employee to comply with the
provisions of this agreement;
3. employee being convicted by any duly constituted
court with competent jurisdiction of a crime
involving moral turpitude;
4. at the discretion of the Board, this contract may be
terminated if there are acts the Board feels are
moral turpitude;
5. at the discretion of the Board for failure to perform
at acceptable levels of deposit growth or asset
growth and other performance standards including
safety and soundness measures as determined by the
Board.
Termination of employment shall constitute a tender by Employee of her
resignation as an officer and director of the Bank. In the event of
termination, the Employee is entitled to severance pay equal to one
month's pay for each year employed by the Bank up to six month's salary.
C. COMPENSATION
1. For all services which Employee may render to the Bank during the
term hereof, the Bank shall pay to Employee, subject to such
deductions as may be required by law:
a. BASE SALARY - An annual salary of $104,500 payable in equal
bimonthly installments and subject to such deductions as may
be required by law, for the first 12 months. Thereafter,
annual performance reviews will be completed during the
month of December each year, for a January 1 effective date
during the term of this Agreement. With the performance
evaluation, the Board will determine the annual salary to be
effective January 1 of each year during the term of the
Agreement. The Board has sole discretion as to the amount of
the CEO's compensation.
b. PERFORMANCE BONUS - Each year, a performance bonus, ranging
from 0% to 50% of CEO's annual base salary will be awarded,
based upon mutually agreed upon goals. The Board has sole
discretion as to the goals of the bonus program.
D. OTHER BENEFITS
1. The Employee shall be entitled to participate in any plan of the
Bank relating to stock options, stock purchases, profit sharing,
thrift, group life insurance, medical coverage, education, or
other bonus, retirement or employee benefits that the Bank may
adopt for the benefit of its employees.
2. Employee shall be entitled to an annual vacation of four (4)
weeks per year. The Employee shall schedule timing of vacations
in a reasonable manner.
3. Employee shall be eligible to participate in any other benefits,
which may be or become applicable to the Bank's executive
officers. Employee shall be reimbursed for mileage associated
with the business of the Bank at the then current reimbursable
rate allowed by the IRS. Employer agrees the payment of
reasonable expenses for attending annual and periodic meetings of
trade associations, and any other benefits, which are
commensurate with the responsibilities and functions to be
performed by the Employee under this Agreement.
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E. CHANGE OF CONTROL
1. If during the term of the Agreement there is a change of control
(COC) of the Bank, the Employee shall be entitled to termination
or severance pay in the event employment is terminated, except
for just cause as defined in Section B, paragraph c, after the
change in control. In the event the Employee is terminated as a
result of the COC, the Employee shall be entitled to receive her
salary through the last day of the calendar month of the
termination, or payment in lieu of the notice period. In
addition, the terminated Employee shall receive an amount equal
to 2 (two) times her then existing annual base salary. This
payment shall also be made in connection with, or within 3 years
after, a change in control of the Bank results in termination of
employment of Employee. This payment shall be in addition to any
amount otherwise owed to the Employee pursuant to this Agreement.
This Agreement will be automatically extended each year after the
initial term unless either party gives contrary written notice to
the other 90 days prior to the renewal anniversary date.
The term "control" shall refer to the acquisition of 25 percent
or more of the voting securities of the Bank by any person, or
persons acting as a group within the meaning of Section 13(d) of
the Securities Exchange Act of 1934, or to such acquisition of a
percentage between 10 percent and 25 percent if the Board of
Directors of the Bank or the Comptroller of the Currency, the
FDIC, or the Federal Reserve Bank have made a determination that
such acquisition constitutes or will constitute control of the
Bank. The term "person" refers to an individual, corporation,
bank, bank holding company, or other entity.
2. The following items are automatically considered due and payable
in the event that a change of control occurs:
a. Non-forfeitable deferred compensation shall be paid out in
full.
b. All earned compensation relative to the terms and conditions
of a bonus program in place at the time of the COC shall be
considered due and payable.
c. In the event that the Employee is a participant in a
restricted stock plan, or share option plan, and such plan
is terminated involuntarily as a result of the COC, all
stock and options shall be declared 100% vested, and
distributed.
F. POST TERMINATION COVENANTS
1. If during the term hereof Employee shall cease employment
hereunder for any reason other than a change of control, employee
agrees that she will not, without prior written consent of the
Bank:
a. furnish anyone with the name of, or any list or lists of,
customers of the Bank or utilize such list or information
himself for banking purposes; or
b. furnish, use or divulge to anyone any information acquired
by him from the Bank relating to the Bank's methods of doing
business.
2. It is understood and agreed by the parties hereto that the
provisions of this section are independent of each other, and the
invalidity of any such provision or portion thereof shall not
affect the validity or enforceability of any other provisions of
this agreement.
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G. WAIVER OF PROVISIONS
Failure of any of the parties to insist, in one or more instances, on
performance by the others in strict accordance with the terms and
conditions of this agreement shall not be deemed a waiver or
relinquishment of any right granted hereunder of the future performance
of any such term or condition or of any other term or condition of this
agreement, unless such waiver is contained in writing signed by or on
behalf of all parties.
H. GOVERNING LAW
This agreement shall be governed by and construed and enforced in
accordance with the laws of the State of California. If for any reason
any provision of this agreement shall be held by a court of competent
jurisdiction to be void or unenforceable, the same shall not affect the
remaining provisions thereof.
I. MODIFICATION AND AMENDMENT
This agreement contains the sole and entire agreement among the parties
hereto and supersedes all prior discussions and agreements among the
parties, and any such prior agreements shall, from and after the date
hereof, be null and void. This agreement shall not be modified or
amended except by an instrument in writing signed by or on behalf of the
parties hereto.
J. NON-ASSIGNABLE CONTRACT
This agreement may not be assigned or transferred by any party hereto,
in whole or in part, without the prior written consent of the other.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
year and date shown below.
Employee:
-------------------------------- --------------------
Xxxxx Xxxxxxx, President & CEO Date
North Coast Bank
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M. Xxxxx Xxxx, Chairman of the Board Date
Xxxxx Xxxxx Xxxx
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Xxxxx Xxxxx Xxxx
President & Chief Executive Officer
Employment Agreement
Addendum
This is an addendum to the Employment Agreement made and entered into
on the SIXTEENTH day of DECEMBER, 0000, xxxxxxx Xxxxx Xxxxx Xxxx, Xxxxx Xxxx,
Xxxxxxxxxx ("the Bank") and Xxxxx X. Xxxxxxx, ("Employee") as follows:
If all or any portion of the amounts payable to Employee pursuant to
paragraph E - Change of Control alone or together with other payments which
Employee has the right to receive from Employer, constitute "excess parachute
payments" within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), that are subject to the excise tax imposed by
Section 4999 of the Code (or similar tax and/or assessment), such amounts
payable hereunder shall be reduced to the extent necessary, after first applying
any similar reduction in payment to be received from any other plan or program
sponsored by Employer from which Employee has a right to receive payment subject
to Sections 280G and 4999 of the Code, including without limitation any Salary
Continuation Agreement made between Employer and Employee, so as to cause a
reduction of any excise tax pursuant to Section 4999 of the Code to equal
"zero".
Employee:
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Xxxxx Xxxxxxx, President & CEO Date
North Coast Bank
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M. Xxxxx Xxxx, Chairman of the Board Date
North Coast Bank
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