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EXHIBIT 10.1
BANK OF THE WEST
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), dated as of November 10, 1998,
between UNITED SECURITY BANCORPORATION ("USBN"), BANK OF THE WEST ("Bank") and
XXX XXXXXX ("Officer") takes effect on the effective date of the Merger
("Effective Date").
RECITALS
A. BANCWEST FINANCIAL CORPORATION ("Bancwest"), which is the parent
company of the Bank, intends to merge into USBN, and the Bank will thereby
become the wholly owned subsidiary of USBN (the "Merger") under the terms of the
Agreement and Plan of Merger dated as of November 10, 1998 (the "Plan") between
the parties.
B. Before the Merger, Officer has served as President and the Chairman
of the Bank.
C. USBN and the Bank desire Officer to continue his employment at the
Bank under the terms and conditions of this Agreement, and Officer desires to
continue his employment at the Bank under the terms and conditions of this
Agreement.
AGREEMENT
The parties agree as follows.
1. EMPLOYMENT. The Bank agrees to employ Officer and Officer accepts employment
by the Bank on the terms and conditions set forth in this Agreement. Officer's
title will be "President and Chief Executive Officer" of the Bank. In addition,
Officer shall, as one of the three individuals appointed pursuant to the Plan,
serve as a member of the board of directors of USBN.
2. EFFECTIVE DATE AND TERM.
(a) Term. The term of this Agreement ("Term") is three (3) years, beginning
on the Effective Date.
(b) Abandonment or Termination of the Merger. If the Plan terminates before
closing of the Merger, this Agreement will not become effective and
will be void.
3. DUTIES. The Bank will employ Officer as its President and Chief Executive
Officer. Officer will faithfully and diligently perform his assigned duties,
which are as follows:
(a) Bank Performance. Officer will be responsible for all
aspects of the Bank's performance, including without limitation,
directing that daily operational and managerial matters are performed
in a manner consistent with USBN's and the Bank's policies. Officer
will exert his best efforts and devote all his working time and
attention to Bank's affairs. Officer may delegate responsibility for
the day-to-day operation of Bank's business to other officers of the
Bank, subject to the general direction and control of Bank's board of
directors; however, he will continue to hold ultimate responsibility
for the Bank's performance. Officer will perform the duties of
President consistent with the Bank's bylaws and the direction of its
board of directors.
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(b) Integration with USBN. Officer will participate in the
integration of the Bank's commercial banking activities with USBN's
existing operations.
(c) Development and Preservation of Business. Officer will be
responsible for the development and preservation of banking
relationships and other business development efforts (including
appropriate civic and community activities) in Walla Walla County,
Washington.
(d) Report to Board. Officer will report directly to the Chief
Executive Officer of USBN and to the board of directors of the Bank.
The Bank's board of directors may, from time to time, modify Officer's
title or add, delete, or modify Officer's performance responsibilities
to accommodate management succession, as well as any other management
objectives of the Bank or of USBN. Officer will assume any additional
positions, duties, and responsibilities as may reasonably be requested
of him with or without additional compensation, as appropriate and
consistent with Sections 3(a), 3(b) and 3(c) of this Agreement.
4. EXTENT OF SERVICES. Officer will at all times faithfully, industriously, and
to the best of his ability, experience and talents, perform all the duties that
may be required of and from the Bank's President under this Agreement. To the
extent that such activities do not interfere with his duties under Section 3,
Officer may participate in other businesses as a passive investor, but (a)
Officer may not actively participate in the operation or management of those
businesses, and (b) Officer may not, without the Bank's prior written consent,
make or maintain any investment in a business with which the Bank and/or USBN
has an existing competitive or commercial relationship.
5. SALARY. Initially, Officer will receive a salary of $108,000 per year, to be
paid in accordance with the Bank's regular payroll schedule. The Bank will
annually review Officer's compensation, in connection with the advice and
recommendations of the Chief Executive Officer of USBN.
6. INCENTIVE COMPENSATION. Each year during the Term, the Bank's board of
directors, subject to ratification by USBN's board of directors, will determine
the amount of bonus, if any, to be paid by the Bank to Officer for that year. In
making this determination, the Bank's board of directors will consider factors
such as Officer's performance of his duties and the safety, soundness and
profitability of the Bank. Officer's bonus, if any, will reflect Officer's
contribution to the performance of the Bank during the year, also taking into
account the nature and extent of incentive bonuses paid to comparable senior
officers at USBN and its banking subsidiaries. This bonus will be paid to
Officer no later than January 31 of the year following the year in which the
bonus is earned by Officer. The foregoing notwithstanding, it is the specific
and agreed intent that the incentive compensation paid to Officer shall be, in
the aggregate, substantially comparable to the incentive compensation Officer
would have received pursuant to the formulas set forth in the Bank's XXX Bonus
Plan, the Loan Incentive Plan, and the Deposit Incentive Plan.
7. BENEFITS. Officer will be entitled to participate in any group life
insurance, disability, health and accident insurance plans, profit sharing and
pension plans and in other employee fringe benefit programs the Bank or USBN 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 USBN's
board of directors with respect to the plans or programs. Such programs may
include without limitation, any incentive or employee stock option plan,
deferred compensation plan, 401(k) plan, Supplemental Executive Retirement Plan
(SERP), and USBN's senior management salary continuation program. The foregoing
notwithstanding, it is the specific and agreed intent that the total benefits
paid to Officer shall be, in the aggregate, substantially comparable to the
total benefits Officer is presently receiving from the Bank, including but not
limited to the Bank's Money Purchase Pension Plan, Life Insurance and Disability
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Plans. Officer shall be entitled to carry over unused vacation days and sick
leave accrued as of the Effective Date.
8. STOCK OPTIONS. Officer shall receive, on or about the Effective Date, an
incentive stock option to purchase 13,000 shares of USBN Common Stock, with the
number of option shares to be adjusted in the event that USBN changes the number
of shares issued and outstanding prior to the Effective Date as a result of a
stock split, stock dividend, recapitalization or similar transaction with
respect to outstanding USBN Common Stock and that the record date therefor is
prior to the option grant date. This grant shall be in addition to any other
options which would customarily be granted, from time to time, to comparable
senior officers at USBN and its banking subsidiaries in the ordinary course of
business.
9. BUSINESS EXPENSES. The Bank will reimburse Officer for ordinary and necessary
expenses (including, without limitation, bank automobile, travel, entertainment,
and similar expenses) incurred in performing and promoting the Bank's business.
Officer will present from time to time itemized accounts of these expenses,
subject to any limits of Bank policy or the rules and regulations of the
Internal Revenue Service. The Bank automobile provided to Officer shall at no
time be more than three (3) years old and shall be of comparable quality to the
Buick Park Avenue presently provided. Upon termination of Officer's employment
with the Bank, Officer shall be permitted to purchase the automobile he is then
operating at the "blue book" value on the date of termination.
10. TERMINATION OF EMPLOYMENT.
(a) Termination By Bank for Cause. If the Bank terminates
Officer's employment for Cause (defined below) or Officer terminates
his employment without Good Reason (defined below) before the Term of
this Agreement expires, the Bank will pay Officer the salary earned and
expenses reimbursable under this Agreement incurred through the date of
his termination. Officer will have no right to receive compensation or
other benefits for any period after termination under this Section
10(a), and Officer will be subject to the noncompetition and
nonsolicitation requirements of Section 12 through the remainder of the
Term and for the 24-month period following the Term.
(b) Other Termination By Bank. If the Bank terminates
Officer's employment without Cause or Officer terminates his employment
for Good Reason (defined below) before the Term of this Agreement
expires, the Bank will pay Officer for the remainder of the Term the
compensation and other benefits he would have been entitled to if his
employment had not terminated, and Officer will be subject to the
noncompetition and nonsolicitation requirements of Section 12 through
the remainder of the Term only.
(c) Death or Disability. This Agreement terminates (1) if
Officer dies or (2) if Officer 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 arising at any time during the term of
this Agreement, unless with reasonable accommodation Officer could
continue to perform his duties under this Agreement and making these
accommodations would not pose undue hardship to the Bank. If
termination occurs under this Section 10(c), Officer or his estate will
be entitled to receive all compensation and benefits earned and
expenses reimbursable through the date Officer's employment terminated.
(d) Return of Bank Property. If and when Officer ceases, for
any reason, to be employed by the Bank, Officer must return to the Bank
all keys, pass cards, identification cards and any other property of
the Bank or USBN. At the same time, Officer also must return to the
Bank all originals and copies (whether in hard copy, electronic or
other form) of any documents,
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drawings, notes, memoranda, designs, devices, diskettes, tapes,
manuals, and specifications which constitute proprietary information or
material of the Bank or USBN. 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:
(i) Willful misfeasance or gross negligence in
the performance of Officer's duties;
(ii) Conviction of a crime in connection with his
duties; or
(iii) Conduct demonstrably and significantly
harmful to the Bank, as reasonably
determined on the advice of legal counsel by
the USBN's or the Bank's board of directors.
(f) Good Reason. "Good Reason" means only any one or more of
the following:
(i) Reduction, without Officer's consent, of
Officer's salary or reduction or elimination
of any compensation or benefit plan
benefiting Officer, 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;
(ii) The assignment to Officer without his
consent of any authority or duties
materially inconsistent with Officer's
position as of the date of this Agreement or
the substantive diminishment of his duties;
or
(iii) A relocation or transfer of Officer's
principal place of employment that would
require Officer to commute on a regular
basis more than 40 miles each way from his
current business office at the Bank on the
date of this Agreement, unless Officer
consents to the relocation or transfer.
11. CONFIDENTIALITY. Officer 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 USBN or their business operations, unless (1) the Bank or USBN consents to
the use or disclosure of their respective confidential information; (2) the use
or disclosure is consistent with Officer'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, 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 USBN, whether or
not such information qualifies as a "trade secret" under applicable laws.
Officer will also treat the terms of this Agreement as confidential business
information.
12. NONCOMPETITION. Subject to the restrictions in Sections 10(a) and 10(b)
above, during the Term and the terms of any extensions or renewals of this
Agreement (the "Employment Period") and for the 24-month period following
termination of the Employment Period, Officer will not, directly or indirectly,
as a shareholder, "founder," director, officer, employee, partner, agent,
consultant, lessor, creditor or otherwise:
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(a) provide management, supervisory or other services to any
person or entity engaged or, in the case of a business to be formed or
in formation, that will engage in any business in Walla Walla County,
Washington which is competitive with the business of the Bank or USBN
or any of their subsidiaries as conducted during the Employment Period;
(b) persuade or entice, or attempt to persuade or entice, any
employee of the Bank or USBN to terminate his/her employment with the
Bank or USBN or to participate in any manner in the formation of any
business referenced under Section 12(a); or
(c) persuade or entice or attempt to persuade or entice, any
person or entity to terminate, cancel, rescind or revoke its business
or contractual relationships with the Bank or USBN.
13. ENFORCEMENT.
(a) The Bank and Officer stipulate that, in light of all of
the facts and circumstances of the relationship between Officer and the
Bank, the agreements referred to in Sections 11 and 12 (including
without limitation their scope, duration and geographic extent) are
fair and reasonably necessary for the protection of the Bank's and
USBN's confidential information, goodwill and other protectable
interests. If a court of competent jurisdiction should decline to
enforce any of those covenants and agreements, Officer and the Bank
will request the court to reform these provisions to restrict Officer's
use of confidential information and Officer's ability to compete with
the Bank and USBN to the maximum extent, in time, scope of activities,
and geography, the court finds enforceable.
(b) Officer acknowledges the Bank and USBN will suffer
immediate and irreparable harm that will not be compensable by damages
alone if Officer 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. Officer 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. Officer represents that if his
employment is terminated, whether voluntarily or involuntarily, Officer has
experience and capabilities sufficient to enable Officer to obtain employment in
areas which do not violate this Agreement and that the Bank's or USBN's
enforcement of a remedy by way of injunction will not prevent Officer from
earning a livelihood.
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
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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 Spokane County, Washington. The
arbitrator, in rendering a decision as to any state law claims, will
apply Washington law.
(c) Exception to Arbitration. Notwithstanding the above, if
Officer violates Section 11 or 12, the Bank will have the right to
initiate the court proceedings described in Section 13(b), in lieu of
an arbitration proceeding under this Section 15.
16. MISCELLANEOUS PROVISIONS.
(a) Reservation of Rights. Notwithstanding any other provision
of this Agreement, USBN shall, in its sole discretion, have the right
to terminate or modify any compensation or benefit plan now or in the
future maintained by USBN or the Bank; provided, however, that the
aggregate economic value of the total compensation and benefits
provided to Officer under this Agreement shall not be reduced as a
result of any such termination or modification.
(b) 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.
(c) Binding Effect. This Agreement will bind and inure to the
benefit of the Bank's, USBN's and Officer's heirs, legal
representatives, successors and assigns.
(d) 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.
(e) 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.
(f) Assignment. The services to be rendered by Officer under
this Agreement are unique and personal. Accordingly, Officer may not
assign any of his rights or duties under this Agreement.
(g) Amendment. This Agreement may be modified only through a
written instrument signed by both parties and approved in writing by
USBN.
(h) Severability. The provisions of this Agreement are
severable. The invalidity of any provision will not affect the validity
of other provisions of this Agreement.
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(i) Governing Law and Venue. This Agreement will be governed
by and construed in accordance with Washington 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
Spokane County, Washington.
(j) 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.
(k) Independent Legal Counsel. Officer acknowledges that he
has had the opportunity to consult with independent legal counsel with
respect to the negotiation, preparation, and execution of this
Agreement.
Signed as of November 10, 1998:
BANK OF THE WEST
By:/s/
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Its:
XXX XXXXXX, individually
/s/
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Xxx Xxxxxx
Ratified _____________, 199__: UNITED SECURITY BANCORPORATION
By:/s/
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Xxxxxxx X. Xxxxxxxx
Its: Chairman
By:/s/
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Xxxxxxx X. Xxxxx
Its: President and Chief Executive
Officer
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