EXHIBIT 10.1
FORM OF
SEVERANCE AND NONCOMPETITION AGREEMENT
This SEVERANCE AND NONCOMPETITION AGREEMENT ("Agreement") is entered
into as of ___________ __, 2003 by and among Washington Federal, Inc. (the
"Company"), Washington Federal Savings and Loan Association (the "Association"),
United Savings and Loan Bank (the "Bank") and ______________ (the "Executive").
RECITALS
WHEREAS, Executive has been employed by the Bank;
WHEREAS, pursuant to the terms of an Agreement and Plan of Merger,
dated as of May __, 2003, by and among the Company, the Association and the Bank
(the "Merger Agreement"), the Company has agreed to acquire the Bank and to
merge it with and into the Association, and the Merger Agreement includes a
condition to closing that the Executive enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of the parties contained herein, the parties hereto, intending to be
legally bound, agree as follows:
1. ENTIRE AGREEMENT. This Agreement supersedes in all respects
all prior and contemporaneous agreements, contracts, representations,
understandings, promises and arrangements, whether written or oral, between the
parties with respect to the subject matter provided hereby. No amendment,
modification, or waiver of this Agreement shall be valid or binding unless it is
in writing and signed by the party against which or whom enforcement of any
waiver, amendment, change, modification, extension, or discharge is sought.
Moreover, no valid waiver of any provision of this Agreement at any time shall
be deemed a waiver of such provision at any other time, nor of any other
provision of this Agreement at such time or any other time.
2. DEFINITIONS. The following words and terms shall have the
meanings set forth below for the purposes of this Agreement:
(a) AFFILIATE. Affiliate of any person or entity
means any stockholder or person or entity controlling, controlled by or under
common control with such person or entity, or any director, officer or key
executive of such entity or any of their respective relatives. For purposes of
this definition, "control," when used with respect to any person or entity,
means the power to direct the management and policies of such person or entity,
directly or indirectly, whether through ownership of voting securities, by
contracting or otherwise; and the terms "controlling" and "controlled" have
meanings that correspond to the foregoing.
(b) EFFECTIVE TIME. "Effective Time" shall have
the meaning set forth in the Merger Agreement.
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(c) COMPETING BUSINESS. "Competing Business"
shall mean any business, enterprise or other entity that as one of its
businesses or activities, is engaged in the business of banking (including,
without limitation, the acceptance of deposits and the making of loans) or a
permitted non-banking activity in which the Bank is directly or indirectly
engaged within the counties of King and Xxxxxx in the State of Washington.
(d) CONFIDENTIAL AND PROPRIETARY INFORMATION.
"Confidential and Proprietary Information" shall mean any and all (i)
confidential or proprietary information or material not in the public domain
about or relating to the business, operations, assets or financial condition of
the Bank or any Affiliate of the Bank or any of the Banks' or any such
Affiliate's trade secrets; and (ii) information, documentation or material not
in the public domain by virtue of any action by or on the part of the Executive,
the knowledge of which gives or may give the Bank or any Affiliate of the Bank
an advantage over any person not possessing such information. For purposes
hereof, the term "Confidential and Proprietary Information" shall not include
any information or material (i) that is known to the general public other than
due to a breach of this Agreement by the Executive or (ii) was disclosed to the
Executive by a person who the Executive did not reasonably believe was bound to
a confidentiality or similar agreement with the Bank or any Affiliate.
3. TERMINATION OF EMPLOYMENT. Executive's employment with the
Bank shall terminate effective as of the Effective Time.
4. RESTRICTIONS RESPECTING COMPETING BUSINESSES, CONFIDENTIAL
INFORMATION, ETC.
(a) The Executive acknowledges and agrees that by virtue of the
Executive's position and involvement with the business and affairs of the Bank,
the Executive has developed substantial expertise and knowledge with respect to
all aspects of the Banks' business, affairs and operations and has had access to
all significant aspects of the business and operations of the Bank and to
Confidential and Proprietary Information.
(b) The Executive hereby covenants and agrees that, until
_________ __, 2008 (the date which is the fifth anniversary of the Effective
Time), unless otherwise authorized by the Company or the Association in writing,
the Executive shall not, directly or indirectly, under any circumstance: (i)
disclose to any other person or entity any Confidential and Proprietary
Information, other than pursuant to applicable law, regulation or subpoena or
with the prior written consent of the Company or the Association; (ii) act or
fail to act so as to impair the confidential or proprietary nature of any
Confidential and Proprietary Information; (iii) use any Confidential and
Proprietary Information; or (iv) offer or agree to, or cause or assist in the
inception or continuation of, any such disclosure, impairment or use of any
Confidential and Proprietary Information. The Executive hereby agrees and
confirms that Executive has returned all documents, records and other items
containing any Confidential and Proprietary Information to the Bank (regardless
of the medium in which maintained or stored).
(c) The Executive covenants and agrees that until _________ __,
2008, the Executive will not, directly or indirectly, manage, operate, or
control, any Competing Business. The Executive further covenants and agrees
that, until _______ __, 2009, the Executive shall not,
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directly or indirectly, induce or influence any customer or other person that
had a business relationship with the Bank, or any Affiliate of the Bank, to
discontinue or reduce the extent of such relationship with the Association, as
successor to the Bank. For purposes of this Agreement, the Executive shall be
deemed directly or indirectly to be managing, operating or controlling a
business if he is engaged or interested in that business as a stockholder,
director, officer, or executive, agent, partner, individual proprietor,
consultant, advisor or otherwise, but not if the Executive's interest is limited
solely to the ownership of not more than 5% of the securities of any class of
equity securities of a corporation or other person whose shares are listed or
admitted to trade on a national securities exchange or are quoted on Nasdaq or a
similar means if Nasdaq is no longer providing such information.
(d) The Executive covenants and agrees that until _________ __,
2008, the Executive shall not, directly or indirectly, solicit to employ for
himself or others any employee of the Bank or any Affiliate of the Bank as of
the date of the cessation of the Executive's employment with the Bank, or to
solicit any such employee to leave the employment of the Association, as
successor to the Bank, or join the employee of another, then or at a later time.
(e) It is the intention of the parties hereto that the foregoing
covenants be fully enforceable in accordance with their terms and the provisions
hereof shall be interpreted so as to be enforceable to the maximum extent
permitted by applicable law, and limited or reduced solely as necessary to
comply with applicable law. To the extent that any obligation to refrain from
competing within an area for a period of time as provided herein is held invalid
or unenforceable, it shall, to the extent (and only to the extent) that it is
invalid or unenforceable, be deemed void ab initio. The remaining obligations
imposed by the provisions hereof shall be enforceable as if such invalid or
unenforceable provisions had not been included herein and shall be construed, to
the extent possible, such that the purpose of the foregoing covenants, as
intended by the parties hereto, can be achieved in a lawful manner.
(f) The parties agree that nothing in this Agreement shall be
construed to limit or negate the common law of torts, confidentiality, trade
secrets, fiduciary duty and obligations where such laws provide the Company or
the Association with any broader, further or other remedy or protection than
those provided herein.
(g) Because the breach of any of the provisions of this Section 4
will result in immediate and irreparable injury to the Company or the
Association for which the Company or the Association will not have an adequate
remedy at law, the Company or the Association shall be entitled, in addition to
all other rights and remedies, to seek a degree of specific performance of the
restrictive covenants contained in this Section 4 and to a temporary and
permanent injunction enjoining such breach, without posting bond or furnishing
similar security.
5. CONSIDERATION. In consideration of Executive's agreement
to, and compliance with, the terms and conditions set forth in this Agreement
and the termination of all outstanding obligations, agreements, contracts,
representations, understandings, promises and arrangements, whether written or
oral, between Employee and the Bank, the Association hereby agrees to pay to
Executive, concurrent with the execution of this Agreement, a cash amount of
___________ Dollars ($__________).
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[NOTE: THE FOLLOWING WOULD APPLY ONLY TO THE SEVERANCE AND
NONCOMPETITION AGREEMENTS FOR XXXXX AND XXXXX XXXX.] In further consideration
thereof, for a period of eighteen months from the Effective Date, which
Effective Date shall be the "qualifying event" date under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), the Executive
shall have the right to continue coverage under the Company's and/or
Association's medical insurance program as provided by COBRA, provided that such
coverage shall be at the Executive's expense.
6. ASSIGNMENT; BINDING AGREEMENT. This Agreement and the
rights and obligations hereunder shall not be assignable by any party without
the written consent of the other party, other than an assignment from the
Company or the Association to any subsidiary, or an assignment by the Company,
by operation of law or otherwise, in connection with any merger or consolidation
of the Company with or into another entity. The rights and obligations of each
party under this Agreement shall be binding upon, and shall inure to the benefit
of, the successors and permitted assigns of such party.
7. SEVERABILITY. The provisions of this Agreement shall be
deemed severable, and the invalidity or enforceability of any or more of these
provisions shall not affect the validity or enforceability of the other
provisions.
8. APPLICABLE LAW. This Agreement shall, at all times and in
all respects, be governed by, construed and interpreted in accordance with the
laws of the State of Washington, without regard to its conflicts of law rules.
9. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which together shall constitute one instrument.
The parties hereto understand and agree that the terms of this
agreement shall be kept confidential. The parties hereby agree that, except as
required by law or in the normal course of business and as set forth herein,
neither this Agreement nor the terms thereof shall be published, communicated or
disclosed to others. Executive may communicate the terms of this Agreement to
his financial and/or tax advisors. It is the responsibility of each party hereto
to make sure that the person or persons to which such party discloses any of the
terms of this Agreement keep such terms confidential.
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as of the date first written above.
WASHINGTON FEDERAL, INC.
By: __________________________________
Name: Xxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
WASHINGTON FEDERAL SAVINGS AND
LOAN ASSOCIATION
By: __________________________________
Name: Xxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
UNITED SAVINGS AND LOAN BANK
By: __________________________________
Name: Xxxxx Xxxxx
Title: President and Chief Executive Officer
EXECUTIVE
By: __________________________________
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