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EXHIBIT 10.22
CONSULTANT SERVICES AGREEMENT
This CONSULTANT SERVICES AGREEMENT ("Agreement"), dated as of April 1,
2000 ("Effective Date"), is between Xxxxxx X. Xxxxxxxx ("Consultant"), and West
Coast Bank ("WCB or Bank").
RECITALS
A. Consultant has proposed to provide certain services to WCB, as listed in
its proposal to WCB attached as Attachment A. The services to be
provided by Consultant are referred to collectively in this Agreement as
"Services."
B. WCB wishes to retain Consultant to provide the Services in accordance
with the terms of this Agreement.
C. Consultant and WCB have signed, as a condition precedent to this
Agreement, a Confidentiality Agreement. The Confidentiality Agreement is
a part of this Agreement.
The parties agree as follows:
AGREEMENT
1. THE SERVICES.
1.1 Consultant Services. Consultant will provide the Services listed
in Attachment A to WCB and its affiliates (collectively, the
"Company"). Attachment A is incorporated into this Agreement.
1.2 Service Standards. Consultant must perform the Services in a
manner consistent with reasonable business practices and
professional standards in his field and in a manner consistent
with the service quality Consultant provided in his former
capacity as Chief Financial Officer of the Company. WCB will
allow Consultant access to the resources reasonably required to
perform the Services in accordance with this Section.
1.3 Hours of Service. The actual hours during which Consultant will
provide the Services will be as mutually agreed between
Consultant and WCB from time to time. But, Consultant will make
himself available during reasonable business hours in a manner
that will allow WCB to schedule up to 250 hours of Consultant's
time before June 30, 2000. If Consultant does not do so, WCB may
deduct from the fees in Attachment B $250 per hour for unused
hours (Consultant will reimburse WCB for these hours if
prepaid). Despite this paragraph, WCB may not require Consultant
to schedule more than 90 hours of Consultant's time in June
2000.
2. SERVICE FEES. Attachment B describes the fees WCB will pay to Consultant
under this Agreement and the payment terms for those fees.
3. TERM. This Agreement is effective from the Effective Date through June
30, 2000, unless sooner terminated in accordance with Section 8.
4. RELATIONSHIP OF THE PARTIES. Consultant is an independent contractor and
will not at any time be considered an employee of the Bank while
providing Services under this Agreement. The relationship between the
parties is not and at no time will be that of
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parties to a partnership, joint venture, or any other similar
affiliation. Neither party at any time will represent that such an
agency, partnership, joint venture, or other similar affiliation exists
between the parties. Consultant waives any claims against Bank for wages
or benefits as an employee in connection with Services provided under
this Agreement and will indemnify and defend Bank for any losses
incurred as a result of or arising out of claims or actions by
Consultant asserting or alleging that Bank owes any employee wages or
benefits to such persons under this Agreement. The Salary Continuation
Agreement between West Coast Bancorp, WCB, and Consultant is terminated
as of the Effective Date. The Indemnification Agreement between West
Coast Bancorp and Consultant will remain in effect with respect to
Consultant's Services under this Agreement.
5. TERMINATION.
5.1 Termination Process. This Agreement may be terminated at any
time by mutual consent of the parties. WCB alone may terminate
this Agreement immediately upon notice to Consultant, if
Consultant materially breaches this Agreement, unless Consultant
has a cure period for such breach under this Agreement, in which
case Bank may terminate the Agreement as of the end of the cure
period if Consultant has not cured the breach. Consultant alone
may terminate this Agreement 20 days after delivering a notice
to WCB, if WCB materially breaches this Agreement, unless the
breach is cured within that 20-day period. Either party may
terminate this Agreement at any time upon notice to the other
party, if a material provision of this Agreement becomes illegal
or in violation of any law, regulation, or regulatory agency
order or opinion, and the severance of the provision from the
Agreement would materially alter its terms.
5.2 Effect of Termination. Termination of this Agreement will not
affect WCB's obligation to pay Consultant the fees earned with
respect to any Services provided to WCB by Consultant before the
termination is effective or any Services provided after the
termination is effective with WCB's written consent. Termination
by Consultant due to a material breach by WCB that is not cured
within the 30-day cure period will not affect WCB's obligation
to pay the fees listed in Attachment B in their entirety. Upon
any termination of this Agreement, Consultant will cooperate
with WCB at WCB's request with the transfer of the Services to
WCB or to a third party. Sections 4, 7, 8.2, 10, 11, 12, 13, and
19 will also survive any termination of this Agreement.
6. COMPLIANCE WITH LAWS. Consultant, at all times while conducting Services
under this Agreement, will comply with all applicable laws and
regulations, state and federal, including, without limitation,
employment-related laws, such as those related to workers' compensation,
unemployment compensation, disability benefits, and employment
discrimination.
7. CONFIDENTIALITY. Neither party will disclose to third parties any
nonpublic, confidential information concerning the other party's
business or customers it may obtain while fulfilling its obligations
under this Agreement, unless the disclosure is not prohibited by
applicable laws or regulations and (1) the disclosing party receives the
other party's written and signed consent to disclosure of its
confidential information; (2) the information is no longer confidential;
or (3) the disclosing party is required by legal or administrative
process, or in connection with responsibilities under the securities
laws, to disclose the confidential information. Bank may disclose
confidential information of Consultant to regulatory agencies with
jurisdiction over the Company. Consultant will comply with the separate
Confidentiality Agreement signed as a condition precedent to
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this Agreement. Each party (1) will promptly notify the other if it
discovers any improper or unauthorized uses or disclosures of the
other's financial information, (2) will take reasonable efforts within
its control to protect against further improper or unauthorized uses or
disclosures, and (3) will cooperate with the other party in any
investigations, claims, or litigation brought as a result of the
unauthorized uses or disclosures. All nonpublic information of a party
will be presumed confidential. However, information will not be
considered confidential if it has been publicly disclosed or is common
public knowledge, each other than due to the actions of the disclosing
party, or its employees, agents or representatives. WCB may disclose the
nature and terms of this Agreement and its relationship with Consultant
to potential business, merger or acquisition partners, on a "need to
know" basis, without violating this or any other Section of this
Agreement. The terms of this Agreement will be publicly disclosed by WCB
in connection with its filing requirements under the Securities Exchange
Act of 1934.
8. BREACH. Material breach of this Agreement by Consultant will include,
without limitation, the following:
8.1 Performance. A material or repeated default in the performance
of any obligations under this Agreement, unless the default is
cured within 20 days after Bank provides Consultant with notice
of the default.
8.2 Bank Security. An intentional breach of Company policies by
Consultant. If the breach is intentional, in addition to having
cause to immediately terminate this Agreement, WCB may also
charge to Consultant the cost of any and all repairs,
replacements, and expenses resulting from the breach. Consultant
will pay these amounts to WCB within 30 days' of receiving
notice of the costs.
8.3 Service Levels. Failure to meet the performance standards
described in Section 1.2 and the Attachments to this Agreement,
unless the failure is cured within 10 days' following notice by
WCB to Consultant.
9. RETURN OF PROPERTY. If and when this Agreement terminates, Consultant
will promptly return to Bank all items of Bank property used or obtained
by Consultant or its employees while providing the Services. All
property is to be returned in good condition and in a manner that will
not affect normal Bank operations. Consultant will reimburse Bank for
any property that is damaged or not returned to Bank, to the extent of
the actual cost incurred for repair or replacement. Consultant will not
be responsible for WCB equipment malfunctions or breakdowns in the
ordinary course of business.
10. INTELLECTUAL PROPERTY RIGHTS. This Section applies to the extent
Consultant uses, accesses or receives any of WCB's software, hardware,
technology systems, trademarks, logos, tradenames or other intellectual
property or proprietary information. The ownership, intellectual
property, and proprietary rights of software and any derivatives of it
may be governed by licensing agreements entered into by WCB with third
parties. Consultant will respect and be obligated by the terms of those
licensing agreements, including, without limitation, any restrictions on
use or modification of the software and any provisions related to
intellectual property rights. Any software, systems, programs, or other
items or derivatives of proprietary or intellectual property, that are
originally developed under this Agreement or not otherwise governed by
agreements between WCB and third parties will become the proprietary,
intellectual property, or copyright protected property of WCB, and
Consultant agrees not to challenge those rights. Consultant also will
not permit any use, sale, distribution, transfer, modification, license
or sublicense of any software, systems, proprietary information,
customer information, or intellectual property owned by or licensed to
WCB,
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without WCB's express written authorization. Consultant will treat and
protect all software, systems, proprietary information, customer
information, and intellectual property owned by or licensed to WCB and
all WCB trade secrets as "confidential information" of WCB within
Section 7 and the Confidentiality Agreement. Intellectual property and
trade secrets currently owned by Consultant will not become property of
WCB under this Section, except as tailored to WCB's specific needs or by
WCB employees.
11. USE OF NAMES. Consultant will not use WCB's logo in and will not use or
refer to WCB's name (in a manner that would violate WCB's proprietary
rights in the name) directly or indirectly in any advertisement, media
release, public announcement or public disclosure without the prior
written consent of WCB.
12. MANDATORY ARBITRATION. At either party's request, any disputes arising
under this Agreement that cannot be resolved between the parties, will
be submitted to binding arbitration in accordance with the rules of the
American Arbitration Association ("AAA"). If the parties are unable to
agree on the appointment of an arbitrator within 10 business days after
the dispute has been submitted to arbitration, AAA will administer the
case as a "one-arbitrator" case under the AAA rules. The costs of the
arbitration (excluding each party's own attorneys' fees) will be shared
equally by the parties. The arbitrator may in his/her discretion award
legal costs and attorneys' fees and to the substantially prevailing
party. If either party fails to appear at any properly noticed
arbitration proceeding, an award may be entered against that party by
default. Arbitration proceedings will take place in either Clackamas or
Multnohmah County, Oregon, unless the parties agree on another location.
Judgment on an arbitration award may be entered by either party in any
court of competent jurisdiction and is final, binding and
non-appealable.
13. INJUNCTIVE RELIEF. Neither party is required to arbitrate with respect
to requests for temporary restraining orders or preliminary or permanent
injunctions. Either party may seek such relief at any time to prevent or
stay a breach or further breach of this Agreement or the Confidentiality
Agreement. The right to seek injunctive relief under this Section
survives any termination of this Agreement.
14. NOTICES. Notices under this Agreement must be in writing, and may be
sent by mail or facsimile. Notices are effective when received, unless
another effective date is designated in the notice or is required by
this Agreement. A party will be found to have received a notice at the
earlier of (a) the date the party actually receives the notice, (b)
three business days following the date the notice was placed in
registered mail, return receipt requested, or (c) the business day
following the date a notice was sent to the party via facsimile, as long
as a facsimile confirmation was received by the sending party in
connection with the transmission of the notice. Notices must be
delivered to a party at the address or facsimile number set forth below,
unless before the notice is sent, the receiving party notifies the
sending party of an alternate address or facsimile number for notices.
15. ASSIGNMENT/SUBCONTRACTING. Consultant may not assign or subcontract any
of its rights or obligations under this Agreement without the prior
written consent of WCB. WCB may not assign its rights or obligations
under this Agreement without the prior written consent of Consultant.
Any assignment, transfer, or subcontract in violation of this Section 15
is void.
16. WAIVER. No delay or omission by either party to exercise any right or
power it has under this Agreement will be interpreted as a waiver of
such right or power, absent a written
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waiver signed by the party waiving the right or power. A waiver by any
party of any breach or obligation of the other party under this
Agreement will not be interpreted as a waiver of any other breaches or
obligations. All waivers must be in writing and signed by the party
making the waiver.
17. GOVERNING LAW AND VENUE. This Agreement is governed by and will be
interpreted in accordance with Oregon State laws. Any legal action or
claim brought or asserted under this Agreement must be filed in Oregon
in either Clackamas County or Multnomah County, and the parties to this
Agreement consent to personal jurisdiction in those counties.
18. FORCE MAJEURE/DISASTER RECOVERY. Neither party will be liable to the
other for any loss or performance delay or failure caused by or
resulting from an event, occurrence, or cause beyond its reasonable
control, including without limitation, war, vandalism, sabotage,
accidents, epidemics, quarantines, fires, explosions, earthquakes,
floods, shortages, interruptions of basic utility services, acts of any
government unit or agency, or acts of the other party that cause a delay
or make performance impossible.
19. ATTORNEYS' FEES. If a dispute arises between the parties regarding this
Agreement or the Services and is settled through legal action, the
substantially prevailing party will be entitled to recover its legal
expenses, including attorneys' fees, from the other party. This
provision applies both at trial and on appeal.
20. ENTIRE AGREEMENT. This Agreement, including its Exhibits, and the
Confidentiality Agreement contain the entire agreement between the
parties with respect to the subject matter of this Agreement, and this
Agreement supercedes all oral understandings or representations and all
prior proposals or agreements, whether written or oral, with respect to
the Services. This Agreement may be amended or modified only through a
written amendment signed by both parties. This Agreement may be executed
in counterparts, each of which will be considered an original and all of
which together constitute the same document. Headings used in this
Agreement are for reference and convenience purposes only and do not
affect interpretation of this Agreement.
21. SEVERABILITY. Except as otherwise provided in this Agreement, if any
provision of this Agreement is legitimately found to be or becomes
illegal or in violation of law, the rest of the Agreement remains in
full force and effect.
Signed and accepted as of March 10, 2000, effective as of the Effective Date:
CONSULTANT: WEST COAST BANK:
/s/ /s/
---------------------------------- ----------------------------------
By: Xxxxxx X. Xxxxxxxx By: Xxxxxx X. Xxxxxx
Its: SVP and General Counsel
Consultant Address:
0000 X.X. Xxxx Xxxxx Xxxx Xxxxx Xxxx Address:
Xxxxxxxx, XX 00000
Fax: N/A Attn: General Counsel
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
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ATTACHMENT A
SERVICES
Consultant will provide certain financial and accounting support Services as
requested by WCB under this Agreement.
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ATTACHMENT B
FEES
WCB will pay Consultant total fees of $62,500. These fees will be due and
payable as follows:
$20,833 on April 1, 2000
$20,833 on May 1, 2000
$20,834 on June 1, 2000
Consultant will keep complete and accurate records of time worked and will
provide those records to WCB upon request.
EXPENSE REIMBURSEMENT:
WCB will reimburse Consultant for reasonable out-of-pocket expenses for long
distance calls, travel expenses (other than for travel to WCB headquarters in
Lake Oswego), and supplies purchased by Consultant that are not provided by WCB
and are necessary for completion of the Services. WCB will also reimburse
Consultant for other out-of-pocket expenses that are approved by WCB in advance
in writing.
Consultant will submit an invoice to WCB for reimbursable expenses that become
due under this Agreement. WCB will pay such invoices within 15 business days.
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EXHIBIT 10.22 (CONT)
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement ("Agreement"), effective as of April 1,
2000, is between West Coast Bancorp ("WCB") and Xxxxxx X. Xxxxxxxx
("Consultant").
RECITALS
A. West Coast Bancorp and its affiliates are retaining Consultant to
provide certain consulting services to assist the Company (collectively,
"Services"). In connection with those Services, Consultant is entering
into this Agreement and a Consulting Agreement with WCB.
B. Due to the nature of the Services, Consultant may have access to
employees, records, documents, and other information owned or used by
WCB and its subsidiaries.
C. The parties wish to ensure that any confidential information, whether
written or oral, owned or used by WCB and its subsidiaries is protected
from disclosure and use by Consultant.
D. WCB's common stock is traded on the NASDAQ under the symbol WCBO.
Confidential information regarding WCB and its subsidiaries and/or other
parties may be deemed material, nonpublic information. WCB wishes to
ensure that Consultant does not trade in WCB stock on the basis of
material, nonpublic information.
Accordingly, the parties agree as follows:
AGREEMENT
1. Confidentiality. Consultant will hold any information ("Information") of
any kind provided to Consultant or otherwise found, delivered, or
overheard in the properties, systems, buildings, offices, records,
documents or other items of WCB and its subsidiaries, whether the
Information is written or oral, in the strictest confidence. Consultant
will refrain from disclosing any confidential Information to anyone in
any manner, unless and until written permission to disclose is granted
by WCB's General Counsel, Chief Financial Officer, or Chief Executive
Officer. This restriction includes the disclosure of Information to
employees of WCB, Consultant, and their affiliates, as well as to any
persons outside of those organizations. Consultant will require any of
his employees who have access to Information to comply with the terms of
this Agreement and will inform those employees of their obligations
under this Agreement. All Information will be presumed confidential.
However, Information will not be considered confidential if it has been
publicly disclosed or is common public knowledge, each other than due to
the actions of Consultant or its employees, agents or representatives.
This Agreement does not prohibit Consultant from sharing Information
with employees of Consultant or WCB and its affiliates on a
"need-to-know" basis as required in order to provide the Services.
2. Xxxxxxx Xxxxxxx Policy. Consultant understands that WCB has an Xxxxxxx
Xxxxxxx Policy that restricts "insiders" from trading in WCB stock when
in possession of material, nonpublic information. Consultant has
received a copy of this Policy and understands that he is an "insider"
of WCB as defined in the Policy. Consultant will comply with the Policy,
and Consultant will refrain from trading in the securities of WCB while
in possession of any of WCB's material, nonpublic information. In
addition, Consultant will cause his employees and representatives to
comply with the terms of this Agreement and the Policy. Consultant
understands that trading in WCB stock when in possession of material,
nonpublic information can result in significant monetary penalties and
other significant consequences.
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3. Indemnification. Consultant will indemnify and defend WCB and it's
employees, successors, and affiliates, harmless from all legal actions,
liability, demands, and claims of any kind (collectively "Claims")
asserted against WCB, or it's employees, successors, or affiliates, as a
result of or arising out of any breach of this Confidentiality Agreement
by Consultant or his employees. This obligation to indemnify and defend
includes without limitation the obligation to pay or reimburse, as
applicable, WCB, its employees, successors, and affiliates, for all
expenses and attorneys' fees incurred by them with respect to any Claim,
whether or not any action or proceeding is commenced and both at trial
and on appeal.
4. Condition Precedent. Consultant acknowledges that this Agreement is a
condition precedent to West Coast Bank's use of Consultant or any of his
Services and to the Consulting Agreement. Compliance with this Agreement
is required in order for Consultant to provide any additional Services
to West Coast Bank. Compliance with this Agreement by Consultant is
critical, and breach of this Agreement will give WCB and West Coast Bank
cause, at its discretion, to immediately terminate its relationship with
Consultant and all of West Coast Bank's remaining obligations to
Consultant, other than to pay for services previously performed, less
any amounts owed to WCB by Consultant under this Agreement. This result
is in addition to any other remedies available to WCB, under either
legal or equitable grounds. This Confidentiality Agreement will survive
termination of the Services or any relationship between Consultant and
West Coast Bank or WCB.
5. Enforcement. Consultant will reimburse WCB and its affiliates for any
legal expenses incurred, including reasonable attorneys' fees and costs,
enforcing this Agreement against Consultant, both at trial and on
appeal. Interest will accrue at 9% per annum, or at the legal rate of
interest for court judgements, whichever is higher, from the date fees
and costs are paid by WCB to the date reimbursed by Consultant. WCB is
entitled to seek injunctive relief in connection with any breach or
anticipatory breach of this Agreement by Consultant.
6. Counterparts/Authority. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of
this Agreement and all of which, when taken together, will be deemed to
constitute one and the same agreement.
7. Governing Law/Venue. This Agreement is governed by and will be
interpreted in accordance with the laws of the State of Oregon, except
to the extent that certain matters are governed by federal law. In the
event of a dispute between the parties, venue will be in Clackamas
County or Multnomah County, Oregon. The parties agree to submit to
personal jurisdiction in those counties. If any provision of this
Agreement is found to be illegal or unenforceable, the remaining terms
of this Agreement will remain in full force and effect.
Signed as of March 10, 2000, effective as of April 1, 2000:
WEST COAST BANCORP XXXXXX X. XXXXXXXX
/S/ /S/
--------------------------------- ---------------------------------
By: Xxxxxx X. Xxxxxx Individually
Its: SVP and General Counsel
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