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EXHIBIT 10.2
SEPARATION AND RELEASE AGREEMENT
1. PARTIES.
The parties to this Separation and Release Agreement (the "Agreement")
are West Coast Bancorp ("Bancorp") and Xxxxxx X. Xxxxxxxx ("Xxxxxxxx").
2. RECITALS.
x. Xxxxxxxx was employed by Bancorp in the position of President and
Chief Executive Officer of Bancorp and its subsidiary, West Coast Bank
(the "Bank"). Effective July 16, 1999, Xxxxxxxx'x employment in such
positions with Bancorp and the Bank is terminated.
b. In recognition of Xxxxxxxx'x service to Bancorp, and to resolve
any and all issues between them arising out of Xxxxxxxx'x employment,
Bancorp and Xxxxxxxx have voluntarily agreed to enter into this Agreement.
3. RESIGNATION FROM BANK AND BOARD.
Effective July 16, 1999, Xxxxxxxx resigns from his positions with Bancorp,
Bancorp's Board of Directors, and from his positions with, and Board membership
on, any parent, subsidiary or affiliated company of Bancorp, including the Bank.
As discussed below in Paragraph 4, after July 16, 1999, Bancorp shall
employ Xxxxxxxx in another capacity through and including October 31, 1999.
Thereafter, Xxxxxxxx shall not intentionally seek or accept future employment or
position (including Board membership) with Bancorp or any of its affiliated or
successor organizations or Boards until May 1, 2000.
4. PAYMENT AND BENEFITS TO XXXXXXXX.
a. As consideration for other provisions of this Agreement, Bancorp
shall employ Xxxxxxxx, with current salary and benefits, through and
including October 31, 1999. Xxxxxxxx'x specific designated duties will be
mutually agreed to by Xxxxxxxx and the Board. Bancorp shall provide
Xxxxxxxx with office space and support services, including a secretary.
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b. On January 4, 2000, Bancorp shall pay Xxxxxxxx a lump sum amount
of two hundred seventy five thousand dollars ($275,000.00). To the extent
allowed by any plan documents and existing law, Xxxxxxxx may defer the
maximum amount of this payment. Bancorp shall make no withholdings from
this lump sum amount, and Xxxxxxxx is solely responsible for any tax
consequences resulting from this payment.
c. Bancorp shall pay Xxxxxxxx for any earned, unused vacation as of
October 31, 1999.
d. Bancorp shall reimburse Xxxxxxxx for any reasonable business
expenses incurred through October 31, 1999, provided Xxxxxxxx submits his
reimbursement requests by no later than November 15, 1999.
x. Xxxxxxxx may permanently retain his personal laptop computer,
provided all confidential Bancorp information is deleted and returned to
Bancorp consistent with paragraphs 7 and 9 below.
f. After Xxxxxxxx'x employment ends on October 31, 1999, Bancorp
shall pay the cost of Xxxxxxxx'x COBRA insurance coverage to provide
Xxxxxxxx health insurance coverage through and including January 31, 1999.
After that time, any insurance premium payments are solely Xxxxxxxx'x
responsibility.
g. Bancorp shall pay directly for executive outplacement services
for Xxxxxxxx, up to a maximum of five thousand dollars ($5,000.00).
h. If allowed by plan documents and law, Xxxxxxxx may continue his
disability insurance coverage at his own expense.
i. Bancorp is making no representations or warranties concerning the
tax implications of any payments pursuant to this Agreement, and has
encouraged Xxxxxxxx to seek independent tax and legal advice. Except as
may be expressly stated in this Agreement, Bancorp shall have no other
financial obligation to Xxxxxxxx. Except as otherwise stated herein,
Bancorp is not responsible for making any other payment,
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pension plan, 401(k) or other retirement plan or other plan payments to
Xxxxxxxx or on Xxxxxxxx'x behalf.
5. WAIVER AND RELEASE OF LIABILITY.
In exchange for the payment provided above, Xxxxxxxx waives and releases
all claims, complaints, and charges of any kind related to his employment and
the events leading up to this Agreement.
This waiver and release applies to Bancorp, all affiliated organizations,
all successor organizations, all employee benefit plans, all present and former
directors, officers, employees, agents, and fiduciaries. It includes, but is not
limited to, all claims of unlawful discrimination under federal and state
statutes, including Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with Disabilities Act, the Older
Worker Benefit Protection Act, ORS Chapters 652 and 659, the Fair Labor
Standards Act, all claims for termination of employment or breach of contract,
wage or other compensation claims, and any other claims relating to Xxxxxxxx"s
employment with Bancorp, whether based on contract, statute, or tort, and
whether filed before a federal or state court or administrative agency. Xxxxxxxx
understands that this waiver and release also applies to his heirs, assigns,
executors, and administrators.
6. ALL OTHER AGREEMENTS NULL AND VOID.
Any other written or verbal agreements between the parties are null and
void, and superceded by this Agreement. This includes that Xxxxxxxx specifically
waives any rights he has pursuant to the "Salary Continuation Agreement" between
the parties.
7. CONFIDENTIALITY OF AGREEMENT.
As part of the consideration for Bank's payment to Xxxxxxxx, Xxxxxxxx
agrees that he shall maintain strict confidentiality regarding the existence and
terms of this Agreement, except as required for accounting statements,
preparation of tax returns, compulsion of legal process, or disclosure to
financial consultants, attorneys or his spouse.
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8. MUTUAL NON-DISPARAGEMENT.
Neither Bancorp nor Xxxxxxxx shall make any negative comments about the
other party. If Bancorp is asked for employment information concerning Xxxxxxxx
it shall direct any such inquiry to Xxxx X. Xxxxxx for so long as Xx. Xxxxxx
remains a member of Bancorp's Board of Directors.
9. RETURN OF PROPERTY.
Xxxxxxxx agrees to return all property to Bancorp, including but not
limited to keys, documents, software, hardware, and any other Bank property.
Bancorp shall assign the membership in the Oregon Golf Club currently used by
Xxxxxxxx to Xxxxxxxx, effective July 31, 1999. All future costs associated with
that membership, including dues, are solely Xxxxxxxx'x responsibility. Bancorp
shall have no future costs associated with that membership, or any other
membership, association or affiliation undertaken by Xxxxxxxx.
11. EXECUTION AND REVOCATION OF THIS AGREEMENT.
Xxxxxxxx accepts this Agreement voluntarily and understands: (a) the
meaning and effect of the waiver and release in paragraph 4; (b) that he was
given, and waived, twenty-one (21) days to decide whether to accept this
Agreement; and (c) that he was advised to consult with an attorney before he
accepts this Agreement. IN MAKING HIS DECISION WHETHER TO ACCEPT THIS AGREEMENT,
XXXXXXXX IS NOT RELYING ON ANY PROMISES OR REPRESENTATIONS, EITHER ORAL OR
WRITTEN, OTHER THAN WHAT IS CONTAINED IN THIS AGREEMENT. XXXXXXXX UNDERSTANDS
THAT HE MAY REVOKE HIS DECISION ONLY WITHIN A PERIOD OF SEVEN (7) DAYS AFTER THE
DATE HE SIGNS THIS AGREEMENT, BY
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DELIVERING WRITTEN NOTICE TO BANCORP. IF XXXXXXXX REVOKES HIS DECISION WITHIN
THE SEVEN DAYS, THE AGREEMENT SHALL NOT BE EFFECTIVE OR ENFORCEABLE AND XXXXXXXX
WILL NOT RECEIVE THE CONSIDERATION DESCRIBED IN THE AGREEMENT.
12. ABILITY TO SEEK EMPLOYMENT/NON-COMPETITION/NON-SOLICITATION
While employed by Bancorp pursuant to this Agreement, Xxxxxxxx may seek
other employment opportunities. However, Xxxxxxxx shall not terminate his
Bancorp employment until October 31, 1999.
While employed by Bancorp, Xxxxxxxx will not, anywhere in any County in
which Bancorp is doing business, directly or indirectly provide services for or
acquire an interest greater than 5% (as an employee, consultant, independent
contractor, agent, sole proprietor, partner, joint venturer, investor,
shareholder, corporate officer, or director) in any bank, firm, entity, or
business that competes with or is expected to compete with Bancorp's business or
reasonably anticipated business.
Xxxxxxxx further agrees that, while employed by Bancorp, he will not
directly or indirectly solicit or encourage any customer, employee or consultant
of Bancorp to leave or terminate such relationship, employment or consultancy
for any reason, including without limitation, becoming a customer of or engaged
in any capacity by Xxxxxxxx (or any person or entity associated with or engaging
Xxxxxxxx or owned to any degree directly or indirectly by Xxxxxxxx, nor will he
assist others in doing so.
All of the restrictions on competition and solicitation in this Paragraph
expressly include a ban on any promotional, organizing, or pre-incorporation
activities by Xxxxxxxx in connection with any bank, firm, entity, or business
that competes with, or should reasonably expect to compete with, Bancorp's
business or reasonably anticipated business.
13. NO ADMISSION OF WRONGDOING
This Agreement is not an admission of wrongdoing by either party.
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14. PARAGRAPH AND SECTION TITLES.
Paragraph and section titles in this Agreement are used for convenience
only and are not intended to and shall not in any way enlarge, define, limit, or
extend the rights or obligations of the parties or affect the interpretation of
this Agreement.
15. ENTIRE AGREEMENT.
This Agreement constitutes the entire integrated agreement of the parties.
All the agreements, covenants, representations, and warranties, express or
implied, oral or written, concerning the subject matter of this Agreement are
contained in this Agreement. Unless otherwise stated herein, all prior and
contemporaneous conversations, negotiations, agreements, representations,
covenants, and warranties concerning the subject matter of this Agreement are
merged into this Agreement.
16. SEVERABILITY.
If any provision of this Agreement is found to be illegal or legally
unenforceable, Bancorp shall have the right to elect that the remaining
provisions shall continue in full force and effect or that there be a rescission
of this Agreement.
17. GOVERNING LAW.
This Agreement shall be governed and enforced by the laws of the state of
Oregon.
18. MISCELLANEOUS.
The benefits of this Agreement shall inure to the successors and assigns
of the parties. The sole remedy for any breach shall be the rights and remedies
provided for herein. The parties acknowledge that the only consideration for
this Agreement is the consideration expressly described herein. The parties
further acknowledge that the terms of this Agreement are contractual.
This Agreement may be executed via facsimile and in one or more
counterparts, each of which shall be deemed to be an original. All counterparts
shall constitute one Agreement binding on all of the parties, notwithstanding
that not all of the parties are signatories to the same counterpart.
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Each of the parties and/or its counsel has reviewed, revised, and
negotiated, or had the opportunity to negotiate the terms, conditions, and
language of this Agreement. The rule of construction that ambiguities are to be
resolved against the drafting party shall not be applied in interpreting this
Agreement.
Each party is responsible for the payment of its own attorneys' fees and
legal expenses with relation to the negotiation and preparation of this
Agreement.
WEST COAST BANCORP
/s/ Xxxxxx X. Xxxxxxxx / July 16, 1999 By /s/ Xxxx X. Xxxxxx / July 16, 1999
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Xxxxxx X. Xxxxxxxx Date Xxxx X. Xxxxxx Date
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