EXHIBIT 10.61
SENIOR MANAGER SEPARATION BENEFITS AGREEMENT
(Including Change In Control Provisions)
THIS SENIOR MANAGER SEPARATION BENEFITS AGREEMENT (the "Agreement") is made
and entered into as of January 17, 1996, by and between SIERRA TAHOE BANCORP, a
California Corporation (hereinafter "STB") and its banking subsidiaries TRUCKEE
RIVER BANK and SIERRA BANK OF NEVADA, with its principal offices located at
10181 Truckee Tahoe Airport Road, P.O. Box 61000, Xxxxxxx, Xxxxxxxxxx 00000 and
XXXXXX X. XXXXXXXX, an individual ("MRS").
WITNESSETH
WHEREAS, MRS is currently designated a senior officer and 'at will'
employee of Truckee River Bank and Sierra Bank of Nevada and expects to
remain a senior officer and employee subject to the policies and conditions
contained within the STB Personnel Policies and Procedures;
WHEREAS, both STB and MRS feel it is in their respective and mutual best
interests to preagree upon appropriate and reasonable separation
compensation that will be paid to MRS should STB ever determine that MRS
should, for whatever reason, be terminated from his position and leave the
company;
WHEREAS, STB and MRS agree that the benefits described herein constitute
full payment of and shall completely supersede and constitute full
satisfaction of any and all other monetary or nonmonetary benefits paid as
a result of the termination of MRS for any reason by STB except as may be
additionally required beyond the sums and benefits paid hereunder by law.
WHEREAS, nothing in this Agreement is intended to change the current at
will employment of MRS or create a contract of employment. Further, this
Agreement shall only cover situations wherein STB requests the termination
of MRS and shall not apply if MRS elects to voluntarily leave STB.
NOW, THEREFORE, in consideration of the promises set forth below and for
other good and valuable consideration, including the mutual covenants and
agreements herein contained, the receipt and sufficiency of which is hereby
acknowledged, STB and MRS hereby agree as follows:
1. Applicability of Agreement; Definition of Termination: This Agreement
coveys additional benefits not otherwise due to employees generally and shall
become operative upon MRS's termination of employment for any reason by STB, its
affiliates and, their respective officers or directors, so long as that
termination did not result from a final determination of the Human Resources
Director and the Personnel Committee of the Board of Directors of STB that MRS's
termination resulted from a material violation of the STB Personnel policies and
procedures (i.e. termination for cause) (hereinafter referred to as the
"Termination"). The term 'Termination' shall also be deemed to include a
resignation by MRS within Nine (9) months of any 'Change In Control' as that
term is defined in Paragraph 5. If the defined Termination of MRS does occur,
this Agreement shall immediately become applicable. This Agreement shall
not apply as to any event not covered under the definition of the term
'Termination'. Following the defined Termination, and the payment of benefits
under this Agreement, it is expressly agreed and understood that STB shall not
be precluded from rehiring MRS's position either now or in the future and such
rehiring shall not be deemed to nullify or change this Agreement if it is
otherwise applicable.
2. Conditions For Payment of Separation Benefits. STB shall pay the
separation benefits set forth in Paragraph 3 to MRS after each of the following
requirements have been satisfied in the reasonable discretion of STB:
A. A defined Termination as set forth in Paragraph 1 has occurred and MRS
has left (or will promptly thereafter leave) the employment of STB; and
B. MRS consent to and does expressly waive, release, indemnify and fully
hold STB, its subsidiary companies and each of their employees, officers and
directors harmless with regard to his employment at STB; the manner of his
Termination; and any other matters reasonably related to his employment. MRS
agrees to initiate no action, of any type or kind, regarding his employment or
Termination and if such an action is initiated he agrees that such action may be
promptly closed, dismissed or summarily disallowed, or, if it shall continue,
that MRS will indemnify STB for the legal fees, costs and expenses resulting
from their defense of that action; and
C. MRS agrees to and shall maintain the confidentiality of any and all
proprietary secrets, processes and plans of STB and its subsidiaries made known
to MRS during his employment.
STB may elect to advance the separation benefits set forth in Paragraph 3 prior
to the satisfaction of each of the above requirements in this Paragraph 2, or in
anticipation of full performance by MRS, and should any requirement not be
satisfied within a reasonable period thereafter or continuously performed, MRS,
upon request of STB and presentation of proof of nonperformance and a reasonable
period to cure the continuing nonperformance, shall promptly return the
separation benefit(s) paid or granted to him and this Agreement shall terminate.
3. Separation Benefits. STB shall, in addition to any final salary,
vacation, personal leave, retirement plan and other monetary or nonmonetary
benefit(s) covered under one or more separate agreement(s) and otherwise
due or applicable to MRS upon Termination (except benefits due under an
agreement or policy concerning office closure or reduction in force laws so
long as less than the sums being paid hereunder), pay to MRS upon
Termination one of the following benefits, at the election and option of
MRS:
A. A lump sum payment equal to TWELVE (12) months of monthly
salary, less any and all applicable taxes, deductions arising from
benefit elections or any other sums required to be deducted by
law, rule or regulation. If this option is elected, STB will
require MRS to pay the full rate allowed by COBRA for any
continued health insurance coverage elected at the time of
Termination; or
B. Continuation of monthly salary for TWELVE (12) months, less any
and all applicable taxes, deductions arising from benefit
elections or other sums required to be deducted by law, rule or
regulation. If this option is elected, and if MRS elects to
continue health insurance coverage under COBRA, STB will continue
to charge MRS the applicable employee coverage rate for Twelve
(12) months if said applicable
employee rate may be properly granted to MRS without violating any
existing policy or law and if said rate is lower than the COBRA
rate that may be assessed.
The payment option elected shall be deemed the "Separation Benefit". Said
Separation Benefit shall result in a waiver of any other separation benefits due
to MRS following the Termination as more fully set forth in Paragraph 4.
4. Express Waiver and Release of Other Separation Benefits. By executing
this Agreement, MRS agrees that the Separation Benefit paid pursuant to this
Agreement, provided the payments or benefits at least equal those payments or
benefits that must be paid to terminated employees by law, shall be deemed to be
the equivalent and substitute for any legally or customarily required separation
payments due to MRS and STB shall be given full credit for sums paid hereunder
as to any legal or customarily requirements to pay separation and payments
hereunder shall be deemed to have fully satisfied STB's obligations with regard
to any legally or customarily mandated separation payments due to MRS upon his
termination, including, but not limited to, any laws or customs regarding
reduction in force or job-site closing. If additional sums are legally required,
or are adjudicated as required, this Agreement shall be deemed to be
automatically amended to credit against the sums due the amount paid hereunder
and this Agreement shall be deemed to include any additionally required benefits
or payments.
5. Change In Control. The term 'Termination' shall include any event
resulting in the change in control or reorganization of STB and shall continue
for NINE (9) months thereafter when it shall terminate (unless a new Change In
Control shall thereafter occur when it shall again be applicable for an
additional nine months). The term 'Change In Control' shall be defined as the
completion of any of the following: (i) the sale of all or substantially all of
the assets of STB; (ii) the merger, consolidation or reorganization of STB in
which STB is not the survivor entity; (iii) or a successful tender offer
involving fifty percent (50%) or more of the outstanding voting securities of
STB; provided, however, that the Reorganization shall be without the monetary
assistance of the FDIC and further provided that any transaction involving the
organization of a holding company in which STB's shareholders would own the same
percentage of such new holding company's securities as they previously held in
STB shall not be deemed to qualify for a Change In Control. If a Change In
Control shall occur, at the election of MRS, and if MRS concludes in good faith
that because of the Change In Control he can no longer properly or effectively
discharge his responsibilities and duties, MRS may, at his option, resign from
STB within the Nine (9) month period set forth in this Paragraph after giving
Sixty (60) days prior written notice of his separation and declare the Change In
Control to be the equivalent of a Termination and receive such benefits that
would have been due had STB caused the Termination to occur as set forth in this
Agreement.
6. Binding Effect of Agreement. This Agreement shall inure to the benefit
of and be binding upon the heirs, administrators, personal representatives,
successors and assigns of MRS and STB, as the case may be.
7. No Contest; Reimbursement of Benefits: The parties hereby mutually agree
that in the event that MRS contests this Agreement, or any of the provisions
hereunder, by the filing or commencement of any action or proceeding relating to
his employment or Termination of any kind or nature whatsoever against STB, its
parent company or affiliate companies or is reemployed by STB involuntarily by
court order, or an enforceable judgment is obtained against STB, then STB shall
have the absolute right: (i) to enforce repayment in full on the date of such
re-employment of all sums paid to MRS hereunder, which sums shall include the
payment or value of any benefits received by MRS hereunder, as a credit in
offset, reduction and
satisfaction of all or any portion of such judgment, or, (ii) if there is no
judgment, against wages due to MRS.
8. Captions: The captions set forth herein are included solely for ease and
convenience of reference and are not to be considered or construed in the
interpretation of this Agreement.
9. Entire Agreement: This Agreement constitutes and contains the entire
Agreement between the parties and no statement or representation of either party
hereto, their agents, officers, directors or employees made outside of this
Agreement and not contained herein shall form a part of this Agreement or be
binding upon the other party. This Agreement shall not be changed, modified,
altered or amended, except by written instrument signed by the parties hereto.
10. Governing Law: This Agreement shall be construed and governed in
accordance with the laws of the State wherein MRS is predominantly employed,
with venue appropriate in the County wherein MRS is predominantly employed. Any
provision of this Agreement prohibited by law shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement. In the event of
any litigation or action being commenced with regard to this Agreement, the
prevailing party shall be awarded their reasonable attorneys fees, costs and
expenses.
11. Informed Consent and Waiver: MRS has executed this Agreement on a fully
informed, voluntary basis. MRS understands and agrees that the separation
benefit provided for herein will preclude MRS's right to seek other separation
benefits, except as allowed by law, and that MRS has been given the right and
opportunity to consult with an advisor or attorney prior to the execution of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have made, executed and delivered this
Agreement as of the day and year first above written.
/s/ XXXXXX X. XXXXXXXX
XXXXXX X. XXXXXXXX
SIERRA TAHOE BANCORP,
a California Corporation
By: /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
Its: President/CEO
STATE OF CALIFORNIA )
) SS.
COUNTY OF NEVADA )
On 19th day of January, 1996, personally appeared before me, a Notary
Public, in and for said County and State, XXXXXX X. XXXXXXXX, known to me to be
the person described in and who executed the foregoing instrument, who
acknowledged to me that he executed the same freely and voluntarily and for the
uses and purposes therein mentioned.
/s/ Xxxxx Xxxxxxx
Notary Public
(Seal)
STATE OF CALIFORNIA )
) SS.
COUNTY OF NEVADA )
On this 13th day of February, 1996, personally appeared before me, a Notary
Public, in and for said County and State, XXXXXXX X. XXXX, in his capacity as
President and CEO of SIERRA TAHOE BANCORP, known to me to be the person
described in and who executed the foregoing instrument, who acknowledge to me
that he executed the same freely and voluntarily and for the uses and purposes
therein mentioned.
/s/ Xxxxx Xxxxxxx
Notary Public
(Seal)
