THIS
AGREEMENT (the “Agreement”) is made and entered into this 6th day of May, 2005
(the “Effective Date”), by and between the WASHINGTON BANKING COMPANY and
WHIDBEY ISLAND BANK (together, “the Employer”) with its principal office in Oak
Harbor, Washington, and Xxxx X. Xxxxxx (the “Executive”).
In
consideration of the mutual promises made in this Agreement, the parties agree as follows:
1.
Employment.
Employer
employs Executive and Executive accepts employment with Employer as its Executive Vice
President and Chief Operating Officer.
2.
Term.
The
term of this Agreement (the “Term”) shall commence on the Effective Date and
shall continue through May 6, 2008; provided, however, that on May 7, 2008 and each
succeeding May 7, the Term shall automatically be extended for one additional year unless,
not later than ninety (90) days prior to any such May 7, either party shall have given
written notice to the other that it does not wish to extend the Term. In the event the
Term is not extended, Executive shall have no rights to any of the severance payments or
benefits continuation except as described in Section 5(a).
3.
Duties.
Executive
will serve as Employer’s Executive Vice President and Chief Operating Officer.
Executive shall render such executive, management and administrative services and perform
such tasks in connection with the affairs and overall operation of the Employer as is
customary for his position, subject to the direction of Employer’s Chief Executive
Officer and Board of Directors. Executive shall devote necessary time, attention and
effort to Employer’s business in order to properly discharge his responsibilities
under this Agreement. Executive is permitted to engage in activities outside the scope of
his duties, provided they do not conflict with the interests of the Employer, and do not
unreasonably infringe on his otherwise full-time dedication to the Employer’s
business.
4.
Compensation, Benefits, Reimbursement and Bonus.
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a.
In consideration for all services rendered by Executive during the term of this
Agreement, Employer shall pay Executive an annual base salary (before all
customary and proper payroll deductions) of $165,000.00 as adjusted from time to
time (“Base Salary”). The Board of Directors of the Employer shall
review Executive’s salary at the end of each year, in a manner consistent
with that used for all management employees of the Employer, and in its sole
discretion may adjust such salary commensurate with the Executive’s
performance under this Agreement.
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b.
Under the Employer’s Annual Incentive Plan, Executive shall be eligible to
receive an annual bonus based on performance as defined by the Board of
Directors, in accordance with the Employer’s incentive plan.
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c.
Executive shall be eligible for restricted stock and stock option grants under
the Employer’s Stock Option Plan. The timing and size of awards will be at
the discretion of the Board of Directors.
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d.
Executive may also participate in the Employer’s Deferred Compensation
Plan.
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e.
Throughout the term of this Agreement, Employer shall provide Executive with
reasonable health insurance, disability and other employee benefits. Executive
shall participate in all employee benefit plans and programs of Employer
available to its executives and key management employees, subject to and on a
basis consistent with the terms, conditions, and overall administration of such
plans and programs. Employer shall reimburse Executive for his reasonable
expenses (including, without limitation, travel, entertainment, and similar
expenses) incurred in performing and promoting the business of Employer.
Executive shall present itemized accounts of any such expenses as required by
Company policy and the rules and regulations of the Internal Revenue Service.
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5.
Termination of Agreement.
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a.
Termination Due to a Change of Control. If Employer
is subjected to a Change of Control (as defined in Section 5(g)(i)), and
either Employer or its assigns terminates Executive’s employment without
Cause or Executive terminates his employment for Good Reason within two (2)
years of such Change of Control, then Employer shall pay Executive upon the
effective date of such termination all Base Salary earned and all reimbursable
expenses incurred under this Agreement through such termination date.
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(i)
In addition, Employer shall pay Executive an amount equal to 1.5 times
Executive’s highest Base Salary over the prior three (3) years, plus an
amount equal to 1.5 times the annual bonus last paid hereunder or 1.5 times the
average bonus paid over the prior three (3) years, whichever is greater
(“Severance Benefit”). Provided, also, that the payment and benefits
described in this Section 5(a) will only be paid conditioned upon Executive
signing an agreement, in a form acceptable to Employer, that releases and holds
Employer harmless from all known and unknown claims and liabilities arising out
of Executive’s employment with Employer or the performance of this
Agreement (“Release Agreement”). The Employer’s obligation to pay
the Severance Benefit under this section continues for up to two (2) years after
the Agreement terminates provided that the Change of Control (as defined in
Section 5(g)(i)) occurs during the Term of the Agreement, and the Executive is
terminated without Cause or terminates his employment for Good Reason within two
(2) years of such Change of Control. The provisions of this paragraph will
survive termination of the Agreement.
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(ii)
Executive shall also be entitled to Severance Benefit if Employer terminates
Agreement without Cause prior to a Change of Control if such termination occurs
at any time from and after ninety days prior to the public announcement by the
Employer or any other party of a transaction which will result in a Change of
Control; provided that the effective date of the Change of Control occurs within
eighteen (18) months of Executive’s termination.
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(iii)
Payment of the Severance Benefit under this section is subject to and condition
on compliance with subsection 5(b).
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b.
Commitment of Executive. In the event that
any person extends any proposal or offer which is intended or may result in a
Change of Control, Executive shall, at the Employer’s request, assist the
Company in evaluating such proposal or offer. Further, subject to the additional
terms and conditions of this Agreement, in order to receive the Severance
Benefit, Executive cannot resign from the Company during any period from the
receipt of a specific Change of Control proposal through the consummation or
abandonment of the transaction contemplated by such proposal.
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c.
Termination by Employer Without Cause or by Executive for Good
Reason. If Employer terminates Executive’s employment
without Cause, or if Executive terminates his employment for Good Reason,
Employer shall pay Executive upon the effective date of such termination all
Base Salary earned and all reimbursable expenses incurred under this Agreement
through such termination date. In addition, Employer shall pay Executive an
amount equal to 1.5 times Executive’s highest Base Salary over the prior
three (3) years, plus an amount equal to 1.5 times the annual bonus last paid
hereunder or 1.5 times the average bonus paid over the prior three (3) years,
whichever is greater. Provided, however, that the payment and benefits described
in this section will only be made conditioned upon Executive signing a
Release Agreement.
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(i)
Benefits Continuation. In addition, the Executive shall be
entitled to health and dental insurance benefits for a period of eighteen (18)
months following the termination of this Agreement. These benefits will be
provided at Employer’s expense, but such period shall count towards the
Employer’s continuation of coverage obligation under Section 4980B of
the Internal Revenue Code (“COBRA”). The foregoing notwithstanding, in
the event that the Executive becomes eligible for comparable group insurance
coverage in connection with new employment, the coverage provided by the Company
under this Section shall terminate immediately.
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d.
Termination by Employer for Cause or by Executive Without Good
Reason. If Employer terminates Executive’s employment
for Cause or if Executive terminates his employment without Good Reason,
Employer shall pay Executive upon the effective date of such termination only
such Base Salary earned and expenses reimbursable under this Agreement incurred
through such termination date. In such case, Executive shall have no right to
receive compensation or other benefits for any period after termination under
this Agreement.
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e.
Termination Due to Disability or Upon Death. If
Employer terminates Executive’s employment on account of any mental or
physical Disability that prevents Executive from discharging his duties under
this Agreement, Executive shall be entitled to all Base Salary earned and
reimbursement for expenses incurred under this Agreement through the termination
date, plus a pro rata portion of any annual bonus for the year of termination.
Executive’s employment under this Agreement shall be terminated upon the
death of Executive. In such case, the Employer shall be obligated to pay to the
surviving spouse of Executive, or if there is none, to the Executive’s
estate: (A) that portion of Executive’s Base Salary that would
otherwise have been paid to him for the month in which his death occurred, and
(B) any amounts due him pursuant to the Employer’s pension plan, any
supplemental deferred compensation plan, and any other death, insurance,
employee benefit plan or stock benefit plan provided to Executive by the
Employer.
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g.
Termination Definitions.
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(i)
“Change of Control.” For purposes of this Agreement, the
term “Change of Control” shall mean the occurrence of one or more of
the following events: (A) One person or entity acquiring or otherwise
becoming the owner of twenty-five percent or more of Employer’s outstanding
common stock; (B) Replacement of a majority of the incumbent directors of
Washington Banking Company or Whidbey Island Bank by directors whose elections
have not been supported by a majority of the Board of either company, as
appropriate; (C) Dissolution or sale of fifty percent or more in value of
the assets, of either Washington Banking Company or Whidbey Island Bank; or
(D) A change “in the ownership or effective control” or “in
the ownership of a substantial portion of the assets” of Employer, within
the meaning of Section 280G of the Internal Revenue Code. Notwithstanding
the foregoing provisions of this section, a Change of Control will not be deemed
to have occurred solely because of an internal corporate reorganization or
similar transaction.
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(ii)
“Cause.” For purposes of this Agreement, termination for
“Cause” shall include termination because Executive: (A) materially
breaches this Agreement; (B) willfully breached or habitually neglected or
breached the duties which he was required to perform under the terms of this
Agreement or the policies of the Company; (C) commits act(s) of dishonesty,
theft, embezzlement, fraud, misrepresentation, or other act(s) of moral
turpitude against Employer, its subsidiaries or affiliates, its shareholders, or
its employees or which adversely impact the interest of Employer;
(D) willfully and continually failed to comply with any law, rule, or
regulation (other than traffic violations or similar offenses) or final cease
and desist order of a regulatory agency having jurisdiction over Employer; (E)
fails to follow the directions of Employer’s Board of Directors, which
failure is not corrected within thirty (30) days after receipt by Executive of
written notice outlining the corrective action required; or (F) knowingly
provides misleading or false information to shareholders, the Board of
Directors, auditors, accountants, or regulatory authorities.
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(iii)
“Disability.” For purposes of this Agreement,
“Disability” is defined as Executive’s inability to perform the
essential functions of the employment duties to the Employer for a period of
three (3) consecutive months. The Employer’s Board of Directors, acting in
good faith, shall make the final determination of whether Executive is suffering
under any Disability (as herein defined) and, for purposes of making such
determination, may require Executive to submit himself to a physical examination
by a physician mutually agreed upon by the Executive and Employer’s Board
of Directors at Employer’s expense.
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(iv)
“Good Reason.” For purposes of this Agreement,
termination for “Good Reason” shall mean termination by Executive as a
result of any material breach of this Agreement by Employer. Good Reason shall
include, but not be limited to: (A) a material reduction in
Executive’s compensation defined as a reduction equal to or greater than
five percent (5%) of Executive’s then annual base salary, which reduction
is not of general application to substantially all employees of the Employer,
(B) a material reduction in Executive’s duties, responsibilities, or
reporting relationship, but not merely a change in title, or (C) relocation
of Executive’s primary workplace from Oak Harbor to a location outside
Whatcom, Island, Snohomish, or Skagit counties.
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h.
Payment of Severance Benefit. Payment of any
Severance Benefit under this Section shall be paid in a lump sum or with
Employer’s regular salary payment schedule, as determined by Executive.
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6.
Parachute Payment Limitation.
Notwithstanding
anything in this Agreement to the contrary, if it is determined by legal counsel (or other
tax advisor to Executive) that the total of the Severance Benefit, together with any other
payments or benefits paid by the Employer to Executive, would constitute an “excess
parachute payment” within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended, and the net after-tax amount that Executive would realize from such
compensation, considering Executive’s federal and state income tax brackets and the
excise tax, would be greater if the compensation payable hereunder were limited, then the
compensation payable hereunder shall be limited in the manner determined by such counsel
or advisor, to maximize Executive’s net after-tax income.
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7.
Covenant Not To Compete.
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a.
Executive agrees that for the term of this Agreement and upon payment of a
Severance Benefit and for a period of eighteen (18) months thereafter (with the
understanding that the eighteen (18) month period will be shortened to one (1)
year upon the completion of a transaction constituting a Change of Control, as
defined in Section 5(g)(i)), Executive will not, within any county in which
Employer has branch offices at the termination of the term of this Agreement,
directly or indirectly be employed by, own, manage, operate, join, or benefit in
any way from any business activity that is competitive with Employer’s
business or reasonably anticipated business of which Executive has knowledge.
Employer and Executive agree that the duration of the covenant may be shortened
if the Executive waives a mutually agreed-upon portion of the Severance Benefit.
For purposes of the foregoing, Executive will be deemed to be directly or
indirectly employed by, own, manage, operate, join, or benefit in any way with
such business if the business is carried on by: (a) a partnership in which
Executive is a general or limited partner; or (b) a corporation of which
Executive is a shareholder (other than a shareholder owning less than 5% of the
total outstanding shares of the corporation), officer, director, employee or
consultant.
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b.
The parties agree that if a trial judge with jurisdiction over a dispute related
to this Agreement should determine that the restrictive covenant set forth above
is unreasonably broad, the parties authorize such trial judge to narrow the
covenant so as to make it reasonable, given all relevant circumstances, and to
enforce such covenant. The provisions of this paragraph shall survive
termination of this Agreement.
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8.
Nondisclosure of Confidential Information.
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a.
During the term of Executive’s employment and thereafter, Executive agrees
to hold Employer’s Confidential Information in strict confidence, and not
disclose or use it at any time except as authorized by Employer and for
Employer’s benefit. If anyone tries to compel Executive to disclose any
Confidential Information, by subpoena or otherwise, Executive agrees immediately
to notify Employer so that Employer may take any actions it deems necessary to
protect its interests. Executive’s agreement to protect Employer’s
Confidential Information applies both during the term of this Agreement and
after employment ends, regardless of the reason it ends.
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b.
“Confidential Information” includes, without limitation, any
information in whatever form that Employer considers to be confidential,
proprietary, information and that is not publicly or generally available
relating to Employer’s: trade secrets (as defined by the Uniform Trade
Secrets Act); know-how; concepts; methods; research and development; product,
content and technology development plans; marketing plans; databases;
inventions; research data and mechanisms; software (including functional
specifications, source code and object code); procedures; engineering;
purchasing; accounting; marketing; sales; customers; advertisers; joint venture
partners; suppliers; financial status; contracts or employees. Confidential
Information includes information developed by Executive, alone or with others,
or entrusted to Employer by its customers or others.
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9.
Nonsolicitation.
Executive
agrees that upon receipt of a Severance Benefit and for a period of eighteen (18) months
thereafter, Executive shall not directly or indirectly solicit or entice any of the
following to cease, terminate or reduce any relationship with Employer or to divert any
business from Employer: (a) any person who was an employee of Employer during the one- (1)
year period immediately preceding the termination of Executive’s employment; (b) any
customer or client of Employer; or (c) any prospective customer or client of Employer from
whom Executive actively solicited business within the last six (6) months of
Executive’s employment.
10.
Non-Disparagement.
Executive
will not, during the Term or after the termination or expiration of this Agreement or
Executive’s employment, make disparaging statements, in any form, about Employer or
its officers, directors, agents, employees, products or services.
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11.
Mutual Agreement to Arbitrate.
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a.
In the event of a dispute or claim between Executive and Employer related to
Employee’s employment or termination of employment, all such disputes or
claims will be resolved exclusively by confidential arbitration in accordance
with the Employment Arbitration Rules of JAMS (formerly Judicial Arbitration
& Mediation Services). This means that the parties agree to waive their
rights to have such disputes or claims decided in court by a jury. Instead, such
disputes or claims will be resolved by an impartial JAMS arbitrator whose
decision will be final.
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b.
The only disputes or claims that are not subject to arbitration are any claims
by Executive for workers’ compensation or unemployment benefits, and any
claim by Executive for benefits under an employee benefit plan that provides its
own arbitration procedure. Also, Executive and Employer may seek injunctive
relief in court in appropriate circumstances.
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c.
The arbitration procedure will afford Executive and Employer the full range of
statutory remedies. Employer will pay all costs that are unique to arbitration,
except that the party who initiates arbitration will pay the filing fee charged
by JAMS. Executive and Employer shall be entitled to discovery sufficient to
adequately arbitrate their claims, including access to essential documents and
witnesses, as determined by the arbitrator and subject to limited judicial
review. In order for any judicial review of the arbitrator’s decision to be
successfully accomplished, the arbitrator will issue a written decision that
will decide all issues submitted and will reveal the essential findings and
conclusions on which the award is based.
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12.
Miscellaneous.
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a.
Notwithstanding any other provision in this Agreement, the Employer shall make no payment of
any Severance Benefit provided for herein to the extent that such payment would
be prohibited by the provisions of Part 359 of the regulations of the Federal
Deposit Insurance Corporation as the same may be amended from time to time, and
if such payment is so prohibited, the Employer shall use its best efforts to
secure the consent of the FDIC or other applicable banking agencies to make
such payments in the highest amount permissible, up to the amount provided for
in this Agreement.
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b.
This Agreement contains the entire agreement between the parties with respect to
Executive’s employment with Employer, and is subject to modification or
amendment only upon agreement in writing signed by both parties.
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c.
This Agreement shall bind and inure to the benefit of the heirs, legal
representatives, successors and assigns of the parties, except that
Employer’s rights and obligations may not be assigned without consent of
Executive, and such consent shall not be unreasonably withheld.
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d.
If any provision of this Agreement is invalid or otherwise unenforceable, all
other provisions shall remain unaffected and shall be enforceable to the fullest
extent permitted by law.
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e.
In the event of any claim or dispute arising out of this Agreement, the party
that substantially prevails shall be entitled to reimbursement of all expenses
incurred in connection with such claim or dispute, including, without
limitation, attorneys’ fees and other professional fees. This paragraph
shall apply to expenses incurred with or without suit, and in any judicial,
arbitration or administrative proceedings, including all appeals therefrom.
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f.
Any notice required to be given under this Agreement to either party shall be
given by personal service or by depositing a copy of such notice in the United
States registered or certified mail, postage prepaid, addressed to the following
address, or such other address as addressee shall designate in writing:
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| Employer: |
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Xxxxxx X. Xxxxxxxx |
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Chairman of the Joint Compensation Committee of |
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Washington Banking Company and |
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Whidbey Island Bank |
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000 XX Xxxxxxxx Xxxxx |
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X.X. Xxx 0000 |
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Xxx Xxxxxx XX 00000 |
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| Executive: | | |
Xxxx X. Xxxxxx | | |
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0000 Xxxxxx Xxxx |
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Xxxxxxxxxx, XX 00000 (COO) |
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g.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Washington.
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| EMPLOYER: |
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WASHINGTON BANKING COMPANY and |
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WHIDBEY ISLAND BANK |
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By: /s/ Xxxxxx X. Xxxxxxxx |
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Xxxxxx X. Xxxxxxxx |
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Chairman of the Joint Compensation Committee of |
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Washington Banking Company and Whidbey Island Bank |
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| EXECUTIVE: |
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By: /s/ Xxxx X. Xxxxxx |
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Xxxx X. Xxxxxx |
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