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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
PARTIES: VALLEY OF THE ROGUE BANK
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxx Xxxxx, XX 00000
XXXX XXXXXXXX
DATE: May 1, 1996
AGREEMENT
WHEREAS, the Bank desires to employ Executive and Executive wishes to
be employed by the Bank, the parties agree as follows:
1. POSITION AND TERM.
Effective January 1, 1997, or such later date as may be
agreed, but no later than March 31, 1997, the Bank shall employ Executive, and
Executive shall report for duty at the Bank as a Senior Vice President of the
Bank, and the Executive shall serve the Bank in such capacity, or in such other
capacity as the Bank may, in its discretion, direct Executive to serve.
2. EXTENT OF SERVICES.
2.1 Executive shall devote his full time and attention
exclusively to the performance of the work and duties assigned to him for and
on behalf of the Bank.
2.2 Executive shall perform his duties with fidelity and
to the best of his ability and shall, at all times during employment by the
Bank and thereafter, respect the confidential nature of the information
received by him in the course of performing his duties.
2.3 Nothing contained in this Section 2 shall prohibit
the Executive from serving on the board of directors of any other corporation
not in direct competition with the Bank or any of its subsidiaries (subject to
the Bank's approval which will not be unreasonably withheld) or from owning or
controlling shares of
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stock in any other corporation, whether or not the capital stock thereof is
publicly traded (including one that operates a business that is competitive
with the Bank or its subsidiaries, if such stock is publicly traded and the
Executive does not beneficially own more than one percent (1%) of the
outstanding shares of such stock).
3. COMPENSATION AND BENEFIT PLANS.
Executive shall be compensated as follows:
3.1 BASE SALARY. Executive shall receive an initial
annual salary ("Base Salary") of $70,000. The Base Salary shall be paid in
increments equal to one-twelfth the Base Salary on the last day of each month.
3.2 INCREASES IN BASE SALARY. When the Bank reviews the
compensation of other executive officers in accordance with the Bank's regular
practices, Executive's Base Salary shall be subject to adjustment in accord
with the Bank's compensation policies and practices generally applicable to
senior executives, at the discretion of the Bank's board of directors.
Executive's Base Salary following any such change shall be the new Base Salary
for purposes of this Agreement.
3.3 INCENTIVE COMPENSATION. Executive shall be eligible
to participate in the Bank's Senior Management Cash Incentive Compensation
Program. The pool will be divided between the senior officers of the Bank on a
pro-rated basis based on base salary compensation paid during the preceding
year; Executive shall participate in the Program for the calendar year 1997;
provided, that Executive's pro rata share during 1997 shall be determined based
only on that portion of his Base Salary paid after his sixth month anniversary
of employment and before December 31, 1997. Executive must be employed at the
time the pool is distributed in order to participate. Executive acknowledges
that the Bank reserves the right to modify or terminate this Plan in its sole
discretion.
3.4 MAJOR MEDICAL, DISABILITY INCOME AND LIFE INSURANCE.
The Bank currently offers an employee benefits program which includes medical,
disability income, and group life insurance. The Bank will provide coverage
for Executive and his immediate family, if eligible, under the basic health
plan at no cost to the Executive. Executive shall be solely responsible for
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the additional cost of participating in any enhanced coverage offered by the
Bank. Nothing in this agreement, however, will require the Bank to provide
additional coverage beyond that offered to other employees. The Bank retains
the right to modify the employee benefits program offered at any future date.
3.5 BANK 401(K) PLAN. Executive shall be entitled to
participate in the Bank's 401(k) Plan in accord with plan terms on the same
basis as other employees.
3.6 VACATION. Executive shall be entitled to accrue up
to four (4) weeks of vacation during each calendar year. Vacation time is
subject to the guidelines set forth in the Bank's employee handbook, including
the guidelines governing vacation accruals during partial years of employment.
4. STOCK OPTIONS, SEVERANCE, TERMINATION OF EMPLOYMENT AND
NONCOMPETITION AND NONSOLICIATION.
The parties acknowledge that, prior to the first day of
executive's employment, there may, but not necessarily will, be a change of
control in the ownership of the Bank. The intent of this section is to specify
certain terms of Executive's employment in view of the potential implications
of that change. For purposes of this Agreement, a "change of control" shall
have occurred if:
(a) a person (which shall include an individual or an entity)
or group of persons acting in concert has acquired beneficial
ownership of 50 percent or more of the outstanding stock with
unlimited voting rights of the Bank or its parent holding company;
(b) any transaction or series of transactions subject to the
review or approval of the Comptroller of the Currency, the Federal
Deposit Insurance Corporation, the Board of Governors of the Federal
Reserve System or the Director of the Office of Thrift Supervision
under 12 U.S.C. Section 1467a (savings and loan holding companies),
12 U.S.C. Section 1817(j) (change of control of insured depository
institutions), 12 U.S.C. Section 1828(c) (merger of insured
depository institutions), or 12 U.S.C. Section 1842 (bank holding
companies) or successor statutes; or of the Director of the Oregon
Department of Business and Consumer Services under ORS Section Section
711.005 - 711.060 (mergers) or ORS Section Section 711.205 -
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711.250 (transfer of assets, liquidation) or successor statutes has
been completed, or the Bank or its parent holding company has entered
into a definitive agreement providing for such a transaction or series
of transactions; or
(c) a majority of the directors of the Bank's parent holding
company have been removed by the vote of the shareholders over the
contrary recommendation of the Board of Directors serving prior to the
vote.
4.1 NO CHANGE OF CONTROL.
If there has been no change of control, or the Bank has not
entered into a final agreement to consummate a change of control, as of the
first day of Executive's employment Executive shall be granted options to
purchase 5,000 shares of the common stock of VRB Bancorp, at the fair market
value of the shares on December 31, 1996.
4.1.1 STOCK OPTIONS.
Stock options shall vest according to the following
schedule:
January 1, 1998 0%
January 1, 1999 0%
January 1, 2000 10%
January 1, 2001 20%
January 1, 2002 30%
January 1, 2003 40%
January 1, 2004 50%
January 1, 2005 60%
January 1, 2006 80%
January 1, 2007 100%
4.1.2 TERMINATION OF EMPLOYMENT.
Executive's employment shall be "at will," and may be
terminated by either the Bank or Executive at any time, with or without cause,
upon two weeks written notice. If Executive resigns his employment, the Bank
shall pay Executive his monthly base salary through the effective date of his
resignation; provided that, without diminishing its obligation to pay Executive
through the effective date of the resignation, the Bank
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may, at its option, relieve Executive of some or all of his continuing duties
and responsibilities during the notice period.
If Executive's employment terminates under this section, the parties
agree that, at the election of the Bank and in its sole discretion, Executive
shall be subject to the terms of the noncompetition and nonsolicitation
provisions of Section 4.4 of this Agreement for a period, to be determined in
its sole discretion by the Bank, but not to exceed eighteen (18) months after
the last day of Executive's employment; provided, that the Bank shall continue
Executive's monthly portion of his base salary for each month that Section 4.4
remains in effect. The Bank agrees that it will notify Executive in writing no
later than ten business days following the last day of Executive's employment
whether it elects to exercise its rights under this Section and, if it elects
to exercise such rights, of the number of months that Section 4.4 shall remain
in effect.
4.2 CHANGE OF CONTROL.
In the event that, prior to Executive's first day of
employment, there has been a change of control, or the Bank has entered into a
final agreement to consummate a change of control, the Bank shall make good
faith efforts to negotiate, on Executive's behalf, Executive's employment with
the successor corporation and comparable stock options. "Comparable stock
options" is defined as options to purchase stock in the successor corporation
substantially comparable to, or more favorable to Executive in terms of number
of shares, purchase price or vesting terms, than the options provided to
Executive pursuant to Section 4.1.1.
4.2.1 NO EMPLOYMENT PROVIDED WITH SUCCESSOR CORPORATION
In the event that the successor corporation elects,
without cause, not to employ Executive, the Bank shall pay executive the
equivalent of one year's Base Salary, payable in monthly increments on the last
day of each month. Solely for purposes of Section 4.2.1, "cause" shall be
defined as (a) the death of Executive; (b) the inability of Executive due to
injury or disease to immediately perform the essential functions of a position
with the successor corporation equivalent in salary, responsibility, and rank
to the position of Senior Vice President with the Bank, with or without
reasonable
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accommodation; (d) conviction of or entry of a plea of guilty or nolo
contendere to a felony or other crime involving moral turpitude; (4)
Executive's removal from office with his current employer because of the
requirement of a regulatory agency having jurisdiction over his current
employer.
4.2.2 TERMINATION OF EMPLOYMENT WITH SUCCESSOR CORPORATION
If the successor corporation elects to employ
Executive, except as provided in Section 4.2.3, termination of Executive's
employment with the successor corporation shall be governed by Section 4.1.2.
4.2.3 SUCCESSOR CORPORATION EMPLOYS EXECUTIVE, BUT
DOES NOT PROVIDE SUBSTANTIALLY EQUIVALENT OR
BETTER STOCK OPTION BENEFITS
4.2.3.1 TERMINATION WITHOUT CAUSE PRIOR TO
JANUARY 1, 1998
If the successor corporation elects to employ
Executive, but not to provide Executive with comparable stock options, the Bank
agrees to pay Executive severance in an amount equal to one year's Base Salary
if the successor corporation terminates Executive's employment without cause
before January 1, 1998.
4.2.3.2 TERMINATION WITHOUT CAUSE AFTER JANUARY 1, 1998
If the successor corporation elects to employ
Executive, but not to provide Executive with comparable stock options, the Bank
agrees to pay Executive severance in an amount equal to one year's Base Salary
if the successor corporation terminates Executive's employment without cause
after January 1, 1998; provided, Executive shall be subject to the
noncompetition and nonsolicitation provisions of Section 4.4 of this Agreement
for a period of one year.
4.2.3.3 TERMINATION FOR CAUSE
If the successor corporation terminates Executive's
employment for cause, the only obligation
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to Executive shall be the payment of Base Salary and benefits accrued to the
date of termination.
4.2.3.4 DEFINITION OF CAUSE
For purposes of Section 4.2.2, "cause" shall be
defined as:
a) The death of the Executive;
b) The disability of the Executive as defined in Section 4.3 of
this Agreement;
c) Conviction of or entry of a plea of guilty or nolo contendere
to a felony or other crime involving moral turpitude;
d) Dishonesty, negligence, fraud or misconduct by Executive in
performance of his duties to the Bank or its parent or
subsidiaries;
e) Material breach of this Agreement by Executive;
f) Executive's removal from office because of the requirement of
a regulatory agency having jurisdiction over the Bank or its
parent;
g) Failure of Executive to perform his duties in a manner
consistent with the Bank's or its successor's standards
respecting Executive's performance.
4.3 DISABILITY.
4.3.1 For purposes of this Agreement, the term
"disability" shall mean Executive's inability because of sickness or injury to
perform the essential functions of duties assigned to him, with or without
reasonable accommodation.
4.3.2 The parties agree that Executive's
availability to perform services required of his position on an ongoing basis
is an essential function of his job. If, because of a disability, Executive
becomes unable to perform his duties for six (6) months in the aggregate in any
twelve (12) month period or for any consecutive three (3) months in
circumstances
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where Executive's medical prognosis is that he will be unable to resume
performance of his duties within an additional three (3) months, then the Bank
may thereafter terminate Executive's employment upon thirty (30) days' written
notice to Executive.
4.4 NONCOMPETITION AND NONSOLICITATION.
Executive agrees that during the time Executive is
employed by the Bank and, if Executive resigns or is terminated by either the
Bank or its successor pursuant to Sections 4.1.2, 4.2.2, or 4.2.3.2, for an
additional period following his last date of employment, as specified in the
applicable section of this Agreement, he will not (a) be associated in any way
with any other financial institution (defined in the Oregon Bank Act) or its
affiliates having branches or doing business in any of the same market areas as
the Bank or its parent, subsidiary, affiliate or related, or successor
corporations, whether directly or indirectly, alone or as a member of a
partnership or as an officer, director, stockholder or employee, (b) directly
or indirectly solicit, influence or assist anyone in the solicitation or
influencing of any customer or depositor of the Bank for the purpose of
causing, encouraging or attempting to cause or encourage such customer or
depositor to divert their current, ongoing or future business from the Bank to
another financial institution or (c) directly or indirectly solicit, influence
or assist anyone in the solicitation or influencing of any other employee of
the Bank for the purpose of causing, encouraging or attempting to cause or
encourage such other employee to leave the employment of the Bank. Ownership
of less than one (1) percent of the stock of a publicly held corporation shall
not be deemed to be prohibited by this provision. Should Executive fail to
honor the non-competition or non-solicitation covenants set forth in this
Section, the Bank will be relieved from its obligation to make any payments
under this Agreement but such relief of the Bank's obligation shall not
discharge Executive of his commitment under this Section.
4.5 OTHER EMPLOYMENT AFTER TERMINATION.
If Executive becomes self-employed or accepts other
employment (not in violation of Section 4.4) following termination of
employment, any income received by Executive will reduce the amount of
severance payable under any provision of this Agreement.
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5. PAYROLL WITHHOLDINGS.
All payments of Base Salary and other compensation payable by
the Bank pursuant to this Agreement shall be subject to the customary
withholding of income taxes and shall be subject to other withholdings required
with respect to compensation paid by an employer to an employee.
6. ARBITRATION.
Any controversy, claim, dispute or difference arising out of
the interpretation, construction or performance of this Agreement or
Executive's employment with the Bank or the termination thereof, against the
Bank, its parent, subsidiary, affiliated or related corporations, or its
officers, managers, employees or agents, including, but not limited to,
statutory claims under federal and state laws against discrimination such as
Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination
in Employment Act, the Americans With Disabilities Act, the Family and Medical
Leave Act, the 1966 Civil Rights Act, the Oregon Civil Rights Act, and common
law claims for breach of contract, breach of covenant of good faith and fair
dealing, wrongful termination, intentional interference with contractual
relations, or intentional or negligent infliction of emotional distress shall
be settled by arbitration in the State of Oregon under the rules and auspices
of the employment dispute rules of the American Arbitration Association, and
judgment upon the award entered in such arbitration may be entered in any court
having jurisdiction thereof.
7. JURISDICTION.
This Agreement has been made in and shall be governed by the
substantive laws of the State of Oregon, without regard to its choice of law
rules.
8. SUCCESSORS AND ASSIGNS.
All rights and duties of the Bank under this Agreement shall
be binding on and inure to the benefit of its successors, assigns or any
company which purchases or otherwise acquires it or all or substantially all of
its operating assets by any method. This Agreement shall not be assignable by
the Executive other than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the
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Executive's estate or personal representative.
9. INTEGRATION.
This Agreement contains the entire agreement of the parties
relating to the subject matter and may not be amended except by an instrument
in writing signed by the parties.
10. NOTICES.
All notices required or permitted under this Agreement shall
be in writing and may be personally served or mailed by registered or certified
U.S. mail, postage prepaid. Notices to the Bank shall be served on or mailed
to the Bank's Executive Vice President, Chief Operating Officer at Valley of
the Rogue Bank, X.X. Xxx 0000, Xxxxx Xxxxx, Xxxxxx 00000, or to such other
person or location as the Bank shall advise Executive in writing. Notices to
Executive shall be served on or mailed to him at such address as Executive
shall advise the Bank in writing.
11. SEVERABILITY.
If any provision of this Agreement shall be found, in any
action, suit or proceeding, to be invalid or ineffective, the validity and
effect of the remaining provisions shall not be affected.
12. PERFORMANCE BY THE BANK.
The parties acknowledge and agree that Executive will serve as
an executive officer of the Bank but also may serve as an officer of and
perform services for its holding company, VRB Bancorp, or any subsidiary or
affiliate of the Bank, VRB Bancorp, or their successors. Compensation and
benefits to be provided to Executive pursuant to this Agreement may be provided
either by the Bank, the holding company or other affiliate or successor or
partly by any of them.
13. EXECUTION.
The parties have executed this Agreement as of the date
appearing in the caption of this Agreement, to be effective upon the Effective
Date stated in Section 1 above.
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"The Bank" "Executive"
VALLEY OF THE ROGUE BANK
By: /s/ Xxxxxxx X. Xxxxxx /s/ Xxxx Xxxxxxxx
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Its: President/CEO XXXX XXXXXXXX
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