North Coast Bank
Senior Vice President & Chief Financial Officer
Change of Control Employment Agreement
This agreement made and entered into this SIXTEENTH day of DECEMBER,
0000, xxxxxxx Xxxxx Xxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx ("the Bank") and Xxxxxx
Xxxxxxxx, ("Employee");
WHEREAS, the Bank is a national bank, regulated by the Office of the
Comptroller of the Currency, insured by the Federal Deposit Insurance
Corporation, and located in Santa Rosa, California; and
WHEREAS, the Bank wants to employ the Employee as Senior Vice President
and Chief Financial Officer of the Bank; and
WHEREAS, the parties desire to enter into this agreement setting forth
the terms and conditions of the employment relationship of the Bank and the
Employee;
NOW, THEREFORE, it is agreed as follows:
A. TERMS OF AGREEMENT
1. The initial term of this Agreement shall continue for three (3)
years unless such agreement is terminated pursuant to the terms
hereof or by the first to occur of the conditions to be stated
hereinafter. This Agreement will be automatically extended each
year after the initial term unless either party gives contrary
written notice to the other 90 days prior to the renewal
anniversary date. The terms previously stated notwithstanding,
this contract will be terminated by the occurrence of any of the
following:
a. The death of Employee;
b. The complete disability of Employee. "Complete disability"
as used herein shall mean the inability of Employee, due to
illness, accident, or other physical or mental incapacity to
perform the services provided for hereunder for an aggregate
of sixty days within any period of 120 consecutive days
during the term hereof, provided, however that said
disability shall not constitute a basis for discharge for
cause;
c. The discharge of Employee by the Bank for cause. "Cause" as
used herein shall mean:
1. such negligence or misconduct as shall constitute, as
a matter of law, a breach of the covenants and
obligations of Employee hereunder;
2. failure or refusal of Employee to comply with the
provisions of this agreement;
3. employee being convicted by any duly constituted
court with competent jurisdiction of a crime
involving moral turpitude;
4. at the discretion of the Board, this contract may be
terminated if there are acts the Board feels are
moral turpitude;
5. at the discretion of the Board for failure to perform
at acceptable levels of deposit growth or asset
growth and other performance standards including
safety and soundness measures as determined by the
Board.
Termination of employment shall constitute a tender by Employee of her
resignation as an officer of the Bank. In the event of termination, the
Employee is entitled to severance pay equal to one month's pay for each
year employed by the Bank up to six month's salary.
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B. CHANGE OF CONTROL
1. If during the term of the Agreement there is a change of control
(COC) of the Bank, the Employee shall be entitled to termination
or severance pay in the event employment is terminated, except
for just cause as defined in Section B, paragraph c, after the
change in control. In the event the Employee is terminated as a
result of the COC, the Employee shall be entitled to receive her
salary through the last day of the calendar month of the
termination, or payment in lieu of the notice period. In
addition, the terminated Employee shall receive an amount equal
to 1 (one) times her then existing annual base salary. This
payment shall also be made in connection with, or within 180 days
after, a change in control of the Bank results in termination of
employment of Employee. This payment shall be in addition to any
amount otherwise owed to the Employee pursuant to this Agreement.
The term "control" shall refer to the acquisition of 25 percent
or more of the voting securities of the Bank by any person, or
persons acting as a group within the meaning of Section 13(d) of
the Securities Exchange Act of 1934, or to such acquisition of a
percentage between 10 percent and 25 percent if the Board of
Directors of the Bank or the Comptroller of the Currency, the
FDIC, or the Federal Reserve Bank have made a determination that
such acquisition constitutes or will constitute control of the
Bank. The term "person" refers to an individual, corporation,
bank, bank holding company, or other entity.
2. The following items are automatically considered due and payable
in the event that a change of control occurs:
a. Non-forfeitable deferred compensation shall be paid out in
full.
b. All earned compensation relative to the terms and conditions
of a bonus program in place at the time of the COC shall be
considered due and payable.
c. In the event that the Employee is a participant in a
restricted stock plan, or share option plan, and such plan
is terminated involuntarily as a result of the COC, all
stock and options shall be declared 100% vested, and
distributed.
C. WAIVER OF PROVISIONS
Failure of any of the parties to insist, in one or more
instances, on performance by the others in strict accordance with
the terms and conditions of this agreement shall not be deemed a
waiver or relinquishment of any right granted hereunder of the
future performance of any such term or condition or of any other
term or condition of this agreement, unless such waiver is
contained in writing signed by or on behalf of all parties.
D. GOVERNING LAW
This agreement shall be governed by and construed and enforced in
accordance with the laws of the State of California. If for any
reason any provision of this agreement shall be held by a court
of competent jurisdiction to be void or unenforceable, the same
shall not affect the remaining provisions thereof.
E. MODIFICATION AND AMENDMENT
This agreement contains the sole and entire agreement among the
parties hereto and supersedes all prior discussions and
agreements among the parties, and any such prior agreements
shall, from and after the date hereof, be null and void. This
agreement shall not be modified or amended except by an
instrument in writing signed by or on behalf of the parties
hereto.
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F. NON-ASSIGNABLE CONTRACT
This agreement may not be assigned or transferred by any party
hereto, in whole or in part, without the prior written consent of
the other.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
year and date shown below.
Employee:
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Xxxxxx Xxxxxxxx, Senior Vice President & CFO Date
North Coast Bank
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M. Xxxxx Xxxx, Chairman of the Board Date
North Coast Bank
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