Exhibit 10.6
PACIFIC CONTINENTAL BANK
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), signed as of April 24, 2001
(the "Effective Date"), is entered into between PACIFIC CONTINENTAL BANK
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("Bank"), PACIFIC CONTINENTAL CORPORATION ("Corporation") and J. XXXXX XXXXXX
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("Executive").
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RECITALS
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A. Executive currently serves as President and Chief Executive Officer of the
Bank and Corporation.
B. Corporation and Bank desire Executive to continue his employment at the
Bank and Corporation under the terms and conditions of this Agreement.
C. Executive desires to continue his employment at the Bank and Corporation
under the terms and conditions of this Agreement.
D. This Agreement supercedes any and all other severance or similar agreements
that may currently be in effect for Executive with either the Bank or the
Corporation.
AGREEMENT
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In consideration of the promises set forth in this Agreement, the parties
agree as follows.
1. Employment. The Bank and Corporation agree to employ Executive, and
Executive accepts employment by the Bank and Corporation on the terms and
conditions set forth in this Agreement. Executive's title will be President
and Chief Executive Officer of both the Bank and Corporation. During the
Term of this Agreement, Executive will serve as a director of both the Bank
and Corporation.
2. Term. The term of this Agreement ("Term") is three years. Notwithstanding
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any termination or expiration of this Agreement, so long as Executive is
employed by the Corporation or any of its subsidiaries, the provisions of
Section 10 shall survive until such time as the Corporation's Board of
Directors specifically terminates Section 10.
3. Duties. The Bank and Corporation will employ Executive as its President and
Chief Executive Officer. Executive will faithfully and diligently perform
his assigned duties, which are as follows:
a. Bank Performance. Executive will be responsible for all aspects of the
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Bank's performance, including without limitation, directing that daily
operational and managerial matters are performed in a manner
consistent with Corporation's and the Bank's policies.
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b. Development and Preservation of Business. Executive will be
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responsible for the development and preservation of banking
relationships and other business development efforts (including
appropriate civic and community activities) in the Bank's market area.
c. Report to Board. Executive will report directly to the Bank's and the
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Corporation's boards of directors.
4. Extent of Services. Executive will devote all of his working time,
attention and skill to the duties and responsibilities set forth in Section
3. To the extent that such activities do not interfere with his duties
under Section 3, Executive may participate in other businesses as a passive
investor, but (a) Executive may not actively participate in the operation
or management of those businesses, and (b) Executive may not, without the
Bank's or the Corporation's prior written consent, make or maintain any
investment in a business with which the Bank and/or Corporation has an
existing competitive or commercial relationship.
5. Salary. In addition to normal fees as a member of the Boards of Directors
of the Bank and the Corporation, Executive will initially receive an annual
base salary of $222,500, to be paid in accordance with the Bank's regular
payroll schedule. Subsequent salary increases are subject to the Bank's and
Corporation's annual review of Executive's compensation and performance.
6. Incentive Compensation. Each year during the Term, the Bank's board of
directors will determine the amount of bonus to be paid by the Bank to
Executive for that year. Such bonus shall be determined in accordance with
the Bank's 401(k)/bonus formula, as such formula is in effect as of the
date of this Agreement and as it may be modified with Executive's prior
approval. This bonus will be paid to Executive no later than January 31 of
the year following the year in which the bonus is earned by Executive.
7. Income Deferral. Executive will be eligible to participate in any program
available to the Bank's and Corporation's senior management for income
deferral, for the purpose of deferring receipt of any or all of the
compensation he may become entitled to under this Agreement.
8. Vacation and Benefits.
a. Vacation and Holidays. Executive will receive six (6) weeks of paid
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vacation each year. Each year, Executive may carry over up to three
(3) weeks of unused vacation to the following year. Any unused
vacation time in excess of three (3) weeks will not accumulate or
carry over from one calendar year to the next.
b. Benefits. Executive will be entitled to participate in any group life
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insurance, disability, health and accident insurance plans, profit
sharing and pension plans and in other employee fringe benefit
programs the Bank or Corporation may have in effect from time to time
for its similarly situated employees, in
2
accordance with and subject to any policies adopted by the Bank's or
Corporation's board of directors with respect to the plans or
programs, including without limitation, any incentive or employee
stock option plan, deferred compensation plan, 401(k) plan (including
matching or profit plan), and Supplemental Executive Retirement Plan
(SERP). Neither the Bank nor Corporation through this Agreement
obligates itself to make any particular benefits available to its
employees. During the Term and consistent with past practice,
Executive will also receive (1) the use of a Bank automobile, (2) an
annual membership at the Downtown Athletic Club or a comparable health
club, and (3) payment of his annual dues at the Xxxxxx Country Club.
c. Business Expenses. The Bank will reimburse Executive for ordinary and
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necessary expenses which are consistent with past practice at the Bank
(including, without limitation, travel, entertainment, and similar
expenses) and which are incurred in performing and promoting the
Bank's business. Executive will present on a monthly basis itemized
accounts of these expenses, subject to any limits of Bank policy or
the rules and regulations of the Internal Revenue Service.
9. Termination of Employment.
a. Termination By Bank for Cause. If, during the Term, the Bank
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terminates Executive's employment for Cause (defined below), the Bank
will pay Executive the salary earned and expenses reimbursable under
this Agreement incurred through the date of his termination. Executive
will have no right to receive compensation or other benefits for any
period after termination under this Section 9.
b. Other Termination By Bank. If, during the Term, the Bank terminates
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Executive's employment without Cause, or Executive terminates his
employment for Good Reason (defined below), the Bank will pay
Executive the compensation (including the bonus described in Section
6) and other benefits he would have been entitled to if his employment
had not terminated (the "Termination Payment"), for a period of twelve
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months. In the event of a termination related to a Change in Control
pursuant to Section 10, the provisions of Section 10 shall supersede
this section.
c. Death or Disability. This Agreement terminates (1) if Executive dies
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or (2) if Executive is unable to perform his duties and obligations
under this Agreement for a period of 90 days as a result of a physical
or mental disability (such inability being, a "Disability"), unless
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with reasonable accommodation Executive could continue to perform his
duties under this Agreement and making these accommodations would not
pose an undue hardship on the Bank. If termination occurs under this
Section 9(c), Executive or his estate will be entitled to receive
3
all compensation and benefits earned and expenses reimbursable
through the date Executive's employment terminated.
d. Return of Bank Property. If and when Executive ceases, for any reason,
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to be employed by the Bank or the Corporation, Executive must return
to the Bank all keys, pass cards, identification cards and any other
property of the Bank or Corporation. At the same time, Executive also
must return to the Bank all originals and copies (whether in hard
copy, electronic or other form) of any documents, drawings, notes,
memoranda, designs, devices, diskettes, tapes, manuals, and
specifications which constitute proprietary information or material of
the Bank or Corporation. The obligations in this paragraph include the
return of documents and other materials which may be in his desk at
work, in his car, in place of residence, or in any other location
under his control.
e. Cause. "Cause" means any one or more of the following:
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(1) Willful misfeasance or gross negligence in the performance of
Executive's duties;
(2) Conviction of a crime in connection with his duties; or
(3) Conduct demonstrably and significantly harmful to the Bank, as
reasonably determined on the advice of legal counsel by the
Bank's board of directors.
f. Good Reason. "Good Reason" means only any one or more of the
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following:
(1) Reduction of Executive's salary or reduction or elimination of
any significant compensation or benefit plan benefiting
Executive, unless the reduction or elimination is generally
applicable to substantially all Bank employees (or employees of a
successor or controlling entity of the Bank) formerly benefited;
(2) The assignment to Executive without his consent of any authority
or duties materially inconsistent with Executive's position as of
the date of this Agreement; or
(3) A relocation or transfer of Executive's principal place of
employment that would require Executive to commute on a regular
basis more than 50 miles each way from his present place of
employment.
g. Change in Control. "Change in Control" means a change "in the
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ownership or effective control" or "in the ownership of a substantial
portion of the assets" of the Bank, within the meaning of section 280G
of the Internal Revenue Code.
10. Payment Related to a Change in Control.
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a. Payment Triggers Upon the occurrence of any of the following, each of
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which is a "Triggering Event," Executive will be entitled to receive
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the payment and benefits described in Section 10(b):
(1) A Change in Control of the Bank and/or the Corporation is
consummated while Executive is employed by the Bank, and
Executive is not offered a Comparable Position (as defined below)
with the acquiring company;
(2) Within one year after accepting a Comparable Position with the
acquiring company, Executive's employment ceases for any reason
other than termination for Cause; or
(3) The Bank terminates Executive's employment without Cause or
Executive resigns for Good Reason, and within one year thereafter
the Bank and/or the Corporation enters into an agreement for a
Change in Control or any party announces or is required by law to
announce a prospective Change in Control of the Bank and/or the
Corporation.
(4) A "Comparable Position" means the position of CEO of the
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acquiring company, on financial terms in the aggregate no less
favorable than this Agreement.
b. Payment Amount. If a Triggering Event occurs, the Bank will pay
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Executive, upon the closing of the Change in Control or termination of
Executive's employment, whichever is applicable, a single payment in
an amount equal to two and one-half (2.5) times the highest
compensation (as reportable on Executive's IRS W-2 form) received by
Executive from the Bank and/or the Corporation during any of the most
recent three (3) calendar years ending before, or simultaneously with,
the date on which the Change in Control occurs or the termination of
Executive's employment, as applicable, less the amount of any
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Termination Payments that may have been paid to Executive pursuant to
Section 9(b). If Executive's employment is terminated pursuant to
Section 10(a), the Bank will also maintain and provide for one-year
following Executive's termination or the closing of the Change in
Control, whichever is later, at no cost to Executive, the benefits
described in Section 8(b) to which Executive is entitled (determined
as of the day before the date of such termination); but if Executive's
participation in any such benefit is thereafter barred or not
feasible, or discontinued or materially reduced, the Bank will arrange
to provide Executive with either benefits substantially similar to
those benefits or a cash payment of substantially similar value in
lieu of the benefits.
c. Limitations on Payments Related to Change in Control. The following
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apply notwithstanding any other provision of this Agreement:
(1) If the total of the payments and benefits described in Section
10(b) will be an amount that would cause them to be a "parachute
payment" within
5
the meaning of Section 280G(b)(2)(A) of the Internal Revenue
Code (a "Parachute Payment Amount"), then such payment(s) shall
------------------------
be reduced so that the total amount thereof is $1 less than the
Parachute Payment Amount; and
(2) Executive's right to receive the payments and benefits described
in Section 10(b) terminates immediately if before the Change in
Control transaction closes, Executive terminates his employment
without Good Reason or the Bank terminates Executive's employment
for Cause.
d. Survival. The provisions of this Section 10 will survive any
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termination or expiration of this Agreement until such time as the
Corporation's Board of Directors specifically terminates this Section
10.
11. Confidentiality. Executive will not, after the date this Agreement is
signed, including during and after its Term, use for his own purposes or
disclose to any other person or entity any confidential business
information concerning the Bank or Corporation or their business
operations, unless (1) the Bank or Corporation consents to the use or
disclosure of their respective confidential information; (2) the use or
disclosure is consistent with Executive's duties under this Agreement or
(3) disclosure is required by law or court order. For purposes of this
Agreement, confidential business information includes, without limitation,
trade secrets, various confidential information concerning all aspects of
current and future operations, nonpublic information on investment
management practices, marketing plans, pricing structure and technology of
either the Bank or Corporation. Executive will also treat the terms of this
Agreement as confidential business information.
12. Nonsolicitation. For two years after Executive's employment under this
Agreement terminates, Executive will not, directly or indirectly, persuade
or entice, or attempt to persuade or entice, (i) any employee of the Bank
or Corporation to terminate his/her employment with the Bank or
Corporation, or (ii) any customer of the Bank or Corporation to terminate
his/her relationship with the Bank or Corporation or to otherwise direct
any portion of his/her business away from the Bank or Corporation.
13. Enforcement.
a. The Bank and Executive stipulate that, in light of all of the facts
and circumstances of the relationship between Executive and the Bank,
the agreements referred to in Sections 11 and 12 are fair and
reasonably necessary for the protection of the Bank's and
Corporation's confidential information, goodwill and other protectable
interests. If a court of competent jurisdiction should decline to
enforce any of those covenants and agreements, Executive and the Bank
request the court to reform these provisions to restrict Executive's
use of confidential information and Executive's ability to solicit
employees to the maximum extent, in time and scope, the court finds
enforceable.
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b. Executive acknowledges the Bank and Corporation will suffer immediate
and irreparable harm that will not be compensable by damages alone if
Executive repudiates or breaches any of the provisions of Sections 11
or 12 or threatens or attempts to do so. For this reason, under these
circumstances, the Bank, in addition to and without limitation of any
other rights, remedies or damages available to it at law or in equity,
will be entitled to obtain temporary, preliminary and permanent
injunctions in order to prevent or restrain the breach, and the Bank
will not be required to post a bond as a condition for the granting of
this relief.
14. Covenants. Executive specifically acknowledges the receipt of adequate
consideration for the covenants contained in Sections 11 and 12 and that
the Bank is entitled to require him to comply with these Sections. These
Sections will survive termination of this Agreement.
15. Arbitration.
a. Arbitration. At either party's request, the parties must submit any
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dispute, controversy or claim arising out of or in connection with, or
relating to, this Agreement or any breach or alleged breach of this
Agreement, to arbitration under the American Arbitration Association's
rules then in effect (or under any other form of arbitration mutually
acceptable to the parties). A single arbitrator agreed on by the
parties will conduct the arbitration. If the parties cannot agree on a
single arbitrator, each party must select one arbitrator and those two
arbitrators will select a third arbitrator. This third arbitrator will
hear the dispute. The arbitrator's decision is final (except as
otherwise specifically provided by law) and binds the parties, and
either party may request any court having jurisdiction to enter a
judgment and to enforce the arbitrator's decision. The arbitrator will
provide the parties with a written decision naming the substantially
prevailing party in the action. This prevailing party is entitled to
reimbursement from the other party for its costs and expenses,
including reasonable attorneys' fees.
b. Governing Law. All proceedings will be held at a place designated by
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the arbitrator in Lane County, Oregon.
c. Exception to Arbitration. Notwithstanding the above, if Executive
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violates Section 11 or 12, the Bank and/or Corporation will have the
right to initiate the court proceedings described in Section 13b), in
lieu of an arbitration proceeding under this Section 15.
16. Miscellaneous Provisions.
a. Entire Agreement. This Agreement constitutes the entire understanding
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and agreement between the parties concerning its subject matter and
supersedes all
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prior agreements, correspondence, representations, or understandings
between the parties relating to its subject matter.
b. Binding Effect. This Agreement will bind and inure to the benefit of
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the Bank's, Corporation's and Executive's heirs, legal
representatives, successors and assigns.
c. Litigation Expenses. If either party successfully seeks to enforce any
-------------------
provision of this Agreement or to collect any amount claimed to be due
under it, this party will be entitled to reimbursement from the other
party for any and all of its out-of pocket expenses and costs
including, without limitation, reasonable attorneys' fees and costs
incurred in connection with the enforcement or collection.
d. Waiver. Any waiver by a party of its rights under this Agreement must
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be written and signed by the party waiving its rights. A party's
waiver of the other party's breach of any provision of this Agreement
will not operate as a waiver of any other breach by the breaching
party.
e. Assignment. The services to be rendered by Executive under this
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Agreement are unique and personal. Accordingly, Executive may not
assign any of his rights or duties under this Agreement.
f. Amendment. This Agreement may be modified only through a written
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instrument signed by both parties.
g. Severability. The provisions of this Agreement are severable. The
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invalidity of any provision will not affect the validity of other
provisions of this Agreement.
h. Governing Law and Venue. This Agreement will be governed by and
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construed in accordance with Oregon law, except to the extent that
certain matters may be governed by federal law. The parties must bring
any legal proceeding arising out of this Agreement in Lane County,
Oregon.
i. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which will be deemed an original, but all of
which taken together will constitute one and the same document.
[signatures appear on following page]
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Signed as of: April 24, 2001:
EXECUTIVE:
/s/ J. Xxxxx Xxxxxx
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J. Xxxxx Xxxxxx
PACIFIC CONTINENTAL BANK:
By /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Its: Chairman of the Board
PACIFIC CONTINENTAL CORPORATION
By /s/ Xxxxxx Xxxxxx
-----------------------------------------
Xxxxxx Xxxxxx
Its: Chairman of the Board
9
PACIFIC CONTINENTAL BANK
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), signed as of April 24, 2001 (the
"Effective Date"), is entered into between PACIFIC CONTINENTAL BANK ("Bank"),
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PACIFIC CONTINENTAL CORPORATION ("Corporation") and XXX X. XXXXX ("Executive").
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RECITALS
--------
A. Executive currently serves as Executive Vice President and Chief Operating
Officer of the Bank and Vice President and Secretary of the Corporation.
B. Corporation and Bank desire Executive to continue his employment at the
Bank and Corporation under the terms and conditions of this Agreement.
C. Executive desires to continue his employment at the Bank and Corporation
under the terms and conditions of this Agreement.
D. This Agreement supercedes any and all other severance or similar agreements
that may currently be in effect for Executive with either the Bank or the
Corporation.
AGREEMENT
---------
In consideration of the promises set forth in this Agreement, the parties
agree as follows.
1. Employment. The Bank and Corporation agree to employ Executive, and
Executive accepts employment by the Bank and Corporation on the terms and
conditions set forth in this Agreement. Executive's title will be Executive
Vice President and Chief Operating Officer of the Bank and Vice President
and Secretary of the Corporation.
2. Term. The term of this Agreement ("Term") is three years. Notwithstanding
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any termination or expiration of this Agreement, so long as Executive is
employed by the Corporation or any of its subsidiaries, the provisions of
Section 10 shall survive until such time as the Corporation's Board of
Directors specifically terminates Section 10.
3. Duties. The Bank will employ Executive as its Executive Vice President and
Chief Operating Officer. The Corporation will employ Executive as its Vice
President and Secretary of the Corporation. Executive will faithfully and
diligently perform the duties assigned to him from time to time by the
Bank's and the Corporation's President. These duties will include, without
limitation, the following:
a. As a member of the Bank's and Corporation's senior management, the
Executive will participate in the planning and strategic direction of
the organizations. Executive will be responsible for the operating
divisions of the company
1
including information systems, personnel, bank operations, financial
reporting, and risk management.
b. Development and Preservation of Business. Executive will be
----------------------------------------
responsible for the development and preservation of banking
relationships and other business development efforts (including
appropriate civic and community activities) in the Bank's market area.
c. Report to President. Executive will report directly to the Bank's and
-------------------
the Corporation's President.
4. Extent of Services. Executive will devote all of his working time,
attention and skill to the duties and responsibilities set forth in Section
3. To the extent that such activities do not interfere with his duties
under Section 3, Executive may participate in other businesses as a passive
investor, but (a) Executive may not actively participate in the operation
or management of those businesses, and (b) Executive may not, without the
Bank's or the Corporation's prior written consent, make or maintain any
investment in a business with which the Bank and/or Corporation has an
existing competitive or commercial relationship.
5. Salary. Executive will initially receive an annual base salary of $131,250,
to be paid in accordance with the Bank's regular payroll schedule.
Subsequent salary increases are subject to the Bank's and Corporation's
annual review of Executive's compensation and performance.
6. Incentive Compensation. Each year during the Term, the Bank's board of
directors will determine the amount of bonus to be paid by the Bank to
Executive for that year. Such bonus shall be determined in accordance with
the Bank's 401(k)/bonus formula, as such formula is in effect as of the
date of this Agreement and as it may be modified with Executive's prior
approval. This bonus will be paid to Executive no later than January 31 of
the year following the year in which the bonus is earned by Executive.
7. Income Deferral. Executive will be eligible to participate in any program
available to the Bank's and Corporation's senior management for income
deferral, for the purpose of deferring receipt of any or all of the
compensation he may become entitled to under this Agreement.
8. Vacation and Benefits.
a. Vacation and Holidays. Executive will receive five (5) weeks of paid
---------------------
vacation each year. Each year, Executive may carry over up to two (2)
weeks of unused vacation to the following year. Any unused vacation
time in excess of two (2) weeks will not accumulate or carry over from
one calendar year to the next.
b. Benefits. Executive will be entitled to participate in any group life
--------
insurance, disability, health and accident insurance plans, profit
sharing and pension plans
2
and in other employee fringe benefit programs the Bank or Corporation
may have in effect from time to time for its similarly situated
employees, in accordance with and subject to any policies adopted by
the Bank's or Corporation's board of directors with respect to the
plans or programs, including without limitation, any incentive or
employee stock option plan, deferred compensation plan, 401(k) plan
(including matching or profit plan), and Supplemental Executive
Retirement Plan (SERP). Neither the Bank nor Corporation through this
Agreement obligates itself to make any particular benefits available
to its employees. During the Term and consistent with past practice,
Executive will also receive (1) the use of a Bank automobile, (2) an
annual membership at the Downtown Athletic Club or a comparable health
club.
c. Business Expenses. The Bank will reimburse Executive for ordinary and
-----------------
necessary expenses which are consistent with past practice at the Bank
(including, without limitation, travel, entertainment, and similar
expenses) and which are incurred in performing and promoting the
Bank's business. Executive will present on a monthly basis itemized
accounts of these expenses, subject to any limits of Bank policy or
the rules and regulations of the Internal Revenue Service.
9. Termination of Employment.
a. Termination By Bank for Cause. If, during the Term, the Bank
-----------------------------
terminates Executive's employment for Cause (defined below), the Bank
will pay Executive the salary earned and expenses reimbursable under
this Agreement incurred through the date of his termination. Executive
will have no right to receive compensation or other benefits for any
period after termination under this Section 9.
b. Other Termination By Bank. If, during the Term, the Bank terminates
-------------------------
Executive's employment without Cause, or Executive terminates his
employment for Good Reason (defined below), the Bank will pay
Executive the compensation (including the bonus described in Section
6) and other benefits he would have been entitled to if his employment
had not terminated (the "Termination Payment"), for a period of twelve
-------------------
months. In the event of a termination related to a Change in Control
pursuant to Section 10, the provisions of Section 10 shall supersede
this section.
c. Death or Disability. This Agreement terminates (1) if Executive dies
-------------------
or (2) if Executive is unable to perform his duties and obligations
under this Agreement for a period of 90 days as a result of a physical
or mental disability (such inability being, a "Disability"), unless
----------
with reasonable accommodation Executive could continue to perform his
duties under this Agreement and making these accommodations would not
pose an undue hardship on the Bank. If termination occurs under this
Section 9(c), Executive or his estate will be entitled to receive
3
all compensation and benefits earned and expenses reimbursable
through the date Executive's employment terminated.
d. Return of Bank Property. If and when Executive ceases, for any reason,
-----------------------
to be employed by the Bank or the Corporation, Executive must return
to the Bank all keys, pass cards, identification cards and any other
property of the Bank or Corporation. At the same time, Executive also
must return to the Bank all originals and copies (whether in hard
copy, electronic or other form) of any documents, drawings, notes,
memoranda, designs, devices, diskettes, tapes, manuals, and
specifications which constitute proprietary information or material of
the Bank or Corporation. The obligations in this paragraph include the
return of documents and other materials which may be in his desk at
work, in his car, in place of residence, or in any other location
under his control.
e. Cause. "Cause" means any one or more of the following:
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(1) Willful misfeasance or gross negligence in the performance of
Executive's duties;
(2) Conviction of a crime in connection with his duties; or
(3) Conduct demonstrably and significantly harmful to the Bank, as
reasonably determined on the advice of legal counsel by the
Bank's board of directors.
f. Good Reason. "Good Reason" means only any one or more of the
-----------
following:
(1) Reduction of Executive's salary or reduction or elimination of
any significant compensation or benefit plan benefiting
Executive, unless the reduction or elimination is generally
applicable to substantially all Bank employees (or employees of a
successor or controlling entity of the Bank) formerly benefited;
(2) The assignment to Executive without his consent of any authority
or duties materially inconsistent with Executive's position as of
the date of this Agreement; or
(3) A relocation or transfer of Executive's principal place of
employment that would require Executive to commute on a regular
basis more than 50 miles each way from his present place of
employment.
g. Change in Control. "Change in Control" means a change "in the
-----------------
ownership or effective control" or "in the ownership of a substantial
portion of the assets" of the Bank, within the meaning of section 280G
of the Internal Revenue Code.
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10. Payment Related to a Change in Control.
a. Payment Triggers Upon the occurrence of any of the following, each of
----------------
which is a "Triggering Event," Executive will be entitled to receive
----------------
the payment and benefits described in Section 10(b):
(1) A Change in Control of the Bank and/or the Corporation is
consummated while Executive is employed by the Bank, and
Executive is not offered a Comparable Position (as defined below)
with the acquiring company;
(2) Within one year after accepting a Comparable Position with the
acquiring company, Executive's employment ceases for any reason
other than termination for Cause; or
(3) The Bank terminates Executive's employment without Cause or
Executive resigns for Good Reason, and within one year thereafter
the Bank and/or the Corporation enters into an agreement for a
Change in Control or any party announces or is required by law to
announce a prospective Change in Control of the Bank and/or the
Corporation.
(4) A "Comparable Position" means the position of CFO of the
-------------------
acquiring company, on financial terms in the aggregate no less
favorable than this Agreement.
b. Payment Amount. If a Triggering Event occurs, the Bank will pay
--------------
Executive, upon the closing of the Change in Control or termination of
Executive's employment, whichever is applicable, a single payment in
an amount equal to two (2) times the highest compensation (as
reportable on Executive's IRS W-2 form) received by Executive from the
Bank and/or the Corporation during any of the most recent three (3)
calendar years ending before, or simultaneously with, the date on
which the Change in Control occurs or the termination of Executive's
employment, as applicable, less the amount of any Termination Payments
----
that may have been paid to Executive pursuant to Section 9(b). If
Executive's employment is terminated pursuant to Section 10(a), the
Bank will also maintain and provide for one-year following Executive's
termination or the closing of the Change in Control, whichever is
later, at no cost to Executive, the benefits described in Section 8(b)
to which Executive is entitled (determined as of the day before the
date of such termination); but if Executive's participation in any
such benefit is thereafter barred or not feasible, or discontinued or
materially reduced, the Bank will arrange to provide Executive with
either benefits substantially similar to those benefits or a cash
payment of substantially similar value in lieu of the benefits.
c. Limitations on Payments Related to Change in Control. The following
----------------------------------------------------
apply notwithstanding any other provision of this Agreement:
5
(1) If the total of the payments and benefits described in Section
10(b) will be an amount that would cause them to be a "parachute
payment" within the meaning of Section 280G(b)(2)(A) of the
Internal Revenue Code (a "Parachute Payment Amount"), then such
------------------------
payment(s) shall be reduced so that the total amount thereof is
$1 less than the Parachute Payment Amount; and
(2) Executive's right to receive the payments and benefits described
in Section 10(b) terminates immediately if before the Change in
Control transaction closes, Executive terminates his employment
without Good Reason or the Bank terminates Executive's employment
for Cause.
d. Survival. The provisions of this Section 10 will survive any
--------
termination or expiration of this Agreement until such time as
the Corporation's Board of Directors specifically terminates this
Section 10.
11. Confidentiality. Executive will not, after the date this Agreement is
signed, including during and after its Term, use for his own purposes or
disclose to any other person or entity any confidential business
information concerning the Bank or Corporation or their business
operations, unless (1) the Bank or Corporation consents to the use or
disclosure of their respective confidential information; (2) the use or
disclosure is consistent with Executive's duties under this Agreement or
(3) disclosure is required by law or court order. For purposes of this
Agreement, confidential business information includes, without limitation,
trade secrets, various confidential information concerning all aspects of
current and future operations, nonpublic information on investment
management practices, marketing plans, pricing structure and technology of
either the Bank or Corporation. Executive will also treat the terms of this
Agreement as confidential business information.
12. Nonsolicitation. For two years after Executive's employment under this
Agreement terminates, Executive will not, directly or indirectly, persuade
or entice, or attempt to persuade or entice, (i) any employee of the Bank
or Corporation to terminate his/her employment with the Bank or
Corporation, or (ii) any customer of the Bank or Corporation to terminate
his/her relationship with the Bank or Corporation or to otherwise direct
any portion of his/her business away from the Bank or Corporation.
13. Enforcement.
a. The Bank and Executive stipulate that, in light of all of the facts
and circumstances of the relationship between Executive and the Bank,
the agreements referred to in Sections 11 and 12 are fair and
reasonably necessary for the protection of the Bank's and
Corporation's confidential information, goodwill and other protectable
interests. If a court of competent jurisdiction should decline to
enforce any of those covenants and agreements, Executive and the Bank
request the court to reform these provisions to restrict Executive's
use
6
of confidential information and Executive's ability to solicit
employees to the maximum extent, in time and scope, the court finds
enforceable.
b. Executive acknowledges the Bank and Corporation will suffer immediate
and irreparable harm that will not be compensable by damages alone if
Executive repudiates or breaches any of the provisions of Sections 11
or 12 or threatens or attempts to do so. For this reason, under these
circumstances, the Bank, in addition to and without limitation of any
other rights, remedies or damages available to it at law or in equity,
will be entitled to obtain temporary, preliminary and permanent
injunctions in order to prevent or restrain the breach, and the Bank
will not be required to post a bond as a condition for the granting of
this relief.
14. Covenants. Executive specifically acknowledges the receipt of adequate
consideration for the covenants contained in Sections 11 and 12 and that
the Bank is entitled to require him to comply with these Sections. These
Sections will survive termination of this Agreement.
15. Arbitration.
a. Arbitration. At either party's request, the parties must submit any
-----------
dispute, controversy or claim arising out of or in connection with, or
relating to, this Agreement or any breach or alleged breach of this
Agreement, to arbitration under the American Arbitration Association's
rules then in effect (or under any other form of arbitration mutually
acceptable to the parties). A single arbitrator agreed on by the
parties will conduct the arbitration. If the parties cannot agree on a
single arbitrator, each party must select one arbitrator and those two
arbitrators will select a third arbitrator. This third arbitrator will
hear the dispute. The arbitrator's decision is final (except as
otherwise specifically provided by law) and binds the parties, and
either party may request any court having jurisdiction to enter a
judgment and to enforce the arbitrator's decision. The arbitrator will
provide the parties with a written decision naming the substantially
prevailing party in the action. This prevailing party is entitled to
reimbursement from the other party for its costs and expenses,
including reasonable attorneys' fees.
b. Governing Law. All proceedings will be held at a place designated by
-------------
the arbitrator in Lane County, Oregon.
c. Exception to Arbitration. Notwithstanding the above, if Executive
------------------------
violates Section 11 or 12, the Bank and/or Corporation will have the
right to initiate the court proceedings described in Section 13b), in
lieu of an arbitration proceeding under this Section 15.
7
16. Miscellaneous Provisions.
a. Entire Agreement. This Agreement constitutes the entire understanding
----------------
and agreement between the parties concerning its subject matter and
supersedes all prior agreements, correspondence, representations, or
understandings between the parties relating to its subject matter.
b. Binding Effect. This Agreement will bind and inure to the benefit of
--------------
the Bank's, Corporation's and Executive's heirs, legal
representatives, successors and assigns.
c. Litigation Expenses. If either party successfully seeks to enforce any
-------------------
provision of this Agreement or to collect any amount claimed to be due
under it, this party will be entitled to reimbursement from the other
party for any and all of its out-of-pocket expenses and costs
including, without limitation, reasonable attorneys' fees and costs
incurred in connection with the enforcement or collection.
d. Waiver. Any waiver by a party of its rights under this Agreement must
------
be written and signed by the party waiving its rights. A party's
waiver of the other party's breach of any provision of this Agreement
will not operate as a waiver of any other breach by the breaching
party.
e. Assignment. The services to be rendered by Executive under this
----------
Agreement are unique and personal. Accordingly, Executive may not
assign any of his rights or duties under this Agreement.
f. Amendment. This Agreement may be modified only through a written
---------
instrument signed by both parties.
g. Severability. The provisions of this Agreement are severable. The
------------
invalidity of any provision will not affect the validity of other
provisions of this Agreement.
h. Governing Law and Venue. This Agreement will be governed by and
-----------------------
construed in accordance with Oregon law, except to the extent that
certain matters may be governed by federal law. The parties must bring
any legal proceeding arising out of this Agreement in Lane County,
Oregon.
i. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which will be deemed an original, but all of
which taken together will constitute one and the same document.
[signatures appear on following page]
8
Signed as of April 24, 2001:
EXECUTIVE:
/s/ Xxx Xxxxx
------------------------------------------------
Xxx X. Xxxxx
PACIFIC CONTINENTAL BANK:
By /s/ Xxxxxx Xxxxxx
---------------------------------------------
Xxxxxx Xxxxxx
Its: Chairman of the Board
PACIFIC CONTINENTAL CORPORATION
By /s/ Xxxxxx Xxxxxx
---------------------------------------------
Xxxxxx Xxxxxx
Its: Chairman of the Board
9
