Exhibit 10.1
Form of Employment Agreement for President and Chief Executive Officer
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
this _____ day of __________ 200_ by and between Rainier Pacific Financial
Group, Inc. (the "Company"), and its wholly owned subsidiary, Rainier Pacific
Savings Bank (the "Savings Bank"), and Xxxx X. Xxxx (the "Employee").
WHEREAS, the Employee is currently serving as the President and Chief
Executive Officer of the Company and of the Savings Bank;
WHEREAS, the Employee has made and will continue to make a major
contribution to the success of the Company and the Savings Bank in the position
of President and Chief Executive Officer;
WHEREAS, the board of directors of the Company and the board of directors
of the Savings Bank (collectively, the "Board of Directors") recognize that the
possibility of a change in control of the Savings Bank or the Company may occur
and that such possibility, and the uncertainty and questions which may arise
among management, may result in the departure or distraction of key management
to the detriment of the Company, the Savings Bank and their respective
stockholders;
WHEREAS, the Board of Directors believes that it is in the best interests
of the Company and the Savings Bank to enter into this Agreement with the
Employee in order to assure continuity of management of the Company and its
subsidiaries; and
WHEREAS, the Board of Directors has approved and authorized the execution
of this Agreement with the Employee;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein, it is AGREED as follows:
1. Definitions.
(a) The term "Change in Control" means (1) an offeror other than the
Company purchases shares of stock of the Company or the Savings Bank pursuant to
a tender or exchange offer for such shares; (2) an event of a nature that
results in the acquisition of control of the Company or the Savings Bank within
the meaning of the Bank Holding Company Act of 1956, as amended, under 12 U.S.C.
Section 1841 (or any successor statute or regulation) or requires the filing of
a notice with the Federal Deposit Insurance Corporation ("FDIC") under 12 U.S.C.
Section 1817(j) (or any successor statute or regulation); (3) an event that
would be required to be reported in response to Item 1 of the Current Report on
Form 8-K, as in effect on the Effective Date, pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); (4) any person (as the
term is used in Sections 13(d) and 14(d) of the Exchange Act) that is or becomes
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) directly
or indirectly of securities of the Company or the Savings Bank representing 25%
or more of the combined voting power of the Company's or the Savings Bank's
outstanding securities; (5) individuals who are members of the board of
directors of the Company immediately following the Effective Date or who are
members of the board of directors of the Savings Bank immediately following the
Effective Date (in each case, the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequently whose
election was approved by a vote of at least three-quarters of the directors
comprising the Incumbent Board, or whose nomination for election by the
Company's or the Savings Bank's stockholders was approved by the nominating
committee serving under an Incumbent Board, shall be considered a member of the
Incumbent Board; or (6) consummation of a plan of reorganization, merger,
consolidation, sale of all or substantially all of the assets of the Company or
a similar transaction in which the Company is not the resulting entity, or a
transaction at the completion of which the former stockholders of the acquired
corporation become the holders of more than 40% of the outstanding common stock
of the Company and the Company is the resulting entity of such transaction;
provided that the term "Change in Control" shall not include an acquisition of
securities by an employee benefit plan of the Savings Bank or the Company.
(b) The term "Consolidated Subsidiaries" means any subsidiary or
subsidiaries of the Company (or its successors) that are part of the affiliated
group (as defined in Section 1504 of the Internal Revenue Code of 1986, as
amended (the "Code"), without regard to subsection (b) thereof) that includes
the Savings Bank, including but not limited to the Company.
(c) The term "Date of Termination" means the date upon which the
Employee's employment with the Company or the Savings Bank or both ceases, as
specified in a notice of termination pursuant to Section 8 of this Agreement or
the date a succession becomes effective under Section 10.
(d) The term "Effective Date" means the date of this Agreement.
(e) The term "Involuntary Termination" means the termination
of the employment of Employee (i) by either the Company or the Savings Bank or
both without the Employee's express written consent; or (ii) by the Employee by
reason of a material diminution of or interference with his duties,
responsibilities or benefits, including (without limitation) any of the
following actions unless consented to in writing by the Employee: (1) a
requirement that the Employee be based at any place other than Fife, Washington,
or within a radius of 35 miles from the location of the Company's administrative
offices as of the Effective Date, except for reasonable travel on Company or
Savings Bank business; (2) a material demotion of the Employee; (3) a material
reduction in the number or seniority of personnel reporting to the Employee or a
material reduction in the frequency with which, or in the nature of the matters
with respect to which such personnel are to report to the Employee, other than
as part of a Savings Bank- or Company-wide reduction in staff; (4) a reduction
in the Employee's salary or a material adverse change in the Employee's
perquisites, benefits, contingent benefits or vacation, other than as part of an
overall program applied uniformly and with equitable effect to all members of
the senior management of the Savings Bank or the Company; (5) a material
permanent increase in the required hours of work or the workload of the
Employee; or (6) the failure of the board of directors of the Company (or a
board of directors of a successor of the Company) to elect him as President and
Chief
2
Executive Officer of the Company (or a successor of the Company) or any action
by the board of directors of the Company (or a board of directors of a successor
of the Company) removing him from such office, or the failure of the board of
directors of the Savings Bank (or any successor of the Savings Bank) to elect
him as President and Chief Executive Officer of the Savings Bank (or any
successor of the Savings Bank) or any action by such board (or a board of a
successor of the Savings Bank) removing him from such office. The term
"Involuntary Termination" does not include Termination for Cause, termination of
employment due to death or permanent disability pursuant to Section 7(f) of this
Agreement, retirement or suspension or temporary or permanent prohibition from
participation in the conduct of the Savings Bank's affairs under Section 8 of
the Federal Deposit Insurance Act ("FDIA").
(f) The terms "Termination for Cause" and "Terminated For Cause"
mean termination of the employment of the Employee with either the Company or
the Savings Bank, as the case may be, because of the Employee's personal
dishonesty, willful misconduct, breach of a fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, or regulation (other than traffic violations or similar offenses) or
final cease-and-desist order, or (except as provided below) material breach of
any provision of this Agreement. No act or failure to act by the Employee shall
be considered willful unless the Employee acted or failed to act with an absence
of good faith and without a reasonable belief that his action or failure to act
was in the best interest of the Company or the Savings Bank. The Employee shall
not be deemed to have been Terminated for Cause unless and until there shall
have been delivered to the Employee a copy of a resolution, duly adopted by the
affirmative vote of not less than a majority of the entire membership of the
Board of Directors at a meeting of the Board duly called and held for such
purpose (after reasonable notice to the Employee and an opportunity for the
Employee, together with the Employee's counsel, to be heard before the Board),
stating that in the good faith opinion of the Board of Directors the Employee
has engaged in conduct described in the preceding sentence and specifying the
particulars thereof in detail.
2. Term. The term of this Agreement shall be a period of three years
commencing on the Effective Date, subject to earlier termination as provided
herein. Beginning on the first anniversary of the Effective Date, and on each
anniversary thereafter, the term of this Agreement shall be extended for a
period of one year in addition to the then-remaining term, provided that (i)
neither the Employee nor the Company has given notice to the other in writing at
least 90 days prior to such anniversary that the term of this Agreement shall
not be extended further; and (ii) prior to such anniversary, the Board of
Directors, or a committee of the Board of Directors which has been delegated
authority to act on such matters by the Board of Directors ("Committee"),
explicitly reviews and approves the extension. Reference herein to the term of
this Agreement shall refer to both such initial term and such extended terms.
3. Employment. The Employee shall be employed as the President and Chief
Executive Officer of the Company and as the President and Chief Executive
Officer of the Savings Bank. As such, the Employee shall render all services and
possess the powers as are customarily performed by persons situated in similar
executive capacities, and shall have such other powers and duties as the Board
of Directors may prescribe from time to time. The Employee shall also render
services to any subsidiary or subsidiaries of the Company or the Savings Bank as
requested by the Company or the Savings Bank from time to time consistent with
his executive position. The Employee shall devote his best efforts and
reasonable time and attention to the business and affairs of the Company and the
Savings Bank to the extent necessary to discharge his responsibilities
hereunder. The Employee may (i) serve on charitable or civic boards or
committees and, in addition, on such
3
corporate boards as are approved in a resolution adopted by a majority of the
Board of Directors or a Committee, which approval shall not be withheld
unreasonably and (ii) manage personal investments, so long as such activities do
not interfere materially with performance of his responsibilities hereunder.
4. Cash Compensation.
(a) Salary. The Company and the Savings Bank jointly agree to pay
the Employee during the term of this Agreement a base salary (the "Salary") the
annualized amount of which shall be not less than the annualized aggregate
amount of the Employee's base salary from the Company and any Consolidated
Subsidiaries in effect at the Effective Date; provided that any amounts of
salary actually paid to the Employee by any Consolidated Subsidiaries shall
reduce the amount to be paid by the Company and the Savings Bank to the
Employee. The Salary shall be paid no less frequently than monthly and shall be
subject to customary tax withholding. The amount of the Employee's Salary shall
be increased (but shall not be decreased) from time to time in accordance with
the amounts of salary approved by the Board of Directors or the Committee or the
board of directors or the appropriate committee of any of the Consolidated
Subsidiaries after the Effective Date. The amount of the Salary shall be
reviewed by the Board of Directors or the Committee at least annually during the
term of this Agreement.
(b) Bonuses. The Employee shall be entitled to participate in an
equitable manner with all other executive officers of the Company and the
Savings Bank in such performance-based and discretionary bonuses, if any, as are
authorized and declared by the Board of Directors or the Committee for executive
officers.
(c) Expenses. The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in performing
services under this Agreement in accordance with the policies and procedures
applicable to the executive officers of the Company and the Savings Bank,
provided that the Employee accounts for such expenses as required under such
policies and procedures.
5. Benefits.
(a) Participation in Benefit Plans. The Employee shall be entitled
to participate, to the same extent as executive officers of the Company and the
Savings Bank generally, in all plans of the Company and the Savings Bank
relating to pension, retirement, thrift, profit-sharing, savings, group or other
life insurance, hospitalization, medical and dental coverage, travel and
accident insurance, education, cash bonuses, and other retirement or employee
benefits or combinations thereof. In addition, the Employee shall be entitled to
be considered for benefits under all of the stock and stock option related plans
in which the Company's or the Savings Bank's executive officers are eligible or
become eligible to participate.
(b) Fringe Benefits. The Employee shall be eligible to participate
in, and receive benefits under, any other fringe benefit plans or perquisites
which are or may become generally available to the Company's or the Savings
Bank's executive officers, including but not limited to
4
supplemental retirement, deferred compensation program, supplemental medical or
life insurance plans, company cars, club dues, physical examinations, financial
planning and tax preparation services.
6. Vacations; Leave. The Employee shall be entitled (i) to annual paid
vacation in accordance with the policies established by the Board of Directors
or the Committee for executive officers, and (ii) to voluntary leaves of
absence, with or without pay, from time to time at such times and upon such
conditions as the Board of Directors or the Committee may determine in its
discretion.
7. Termination of Employment.
(a) Involuntary Termination. The Board of Directors may terminate
the Employee's employment at any time, but, except in the case of Termination
for Cause, termination of employment shall not prejudice the Employee's right to
compensation or other benefits under this Agreement. In the event of Involuntary
Termination other than after a Change in Control which occurs during the term of
this Agreement, the Company and the Savings Bank jointly shall (i) pay to the
Employee during the remaining term of this Agreement the Salary at the rate in
effect immediately prior to the Date of Termination, including the pro rata
portion of any incentive award, payable in such manner and at such times as the
Salary would have been payable to the Employee under Section 4(a) if the
Employee had continued to be employed by the Company and the Savings Bank, and
(ii) provide to the Employee during the remaining term of this Agreement
substantially the same group life insurance, hospitalization, medical, dental,
prescription drug and other health benefits, and long-term disability insurance
(if any) for the benefit of the Employee and his dependents and beneficiaries
who would have been eligible for such benefits if the Employee had not suffered
Involuntary Termination, on terms substantially as favorable to the Employee,
including amounts of coverage and deductibles and other costs to him, as if he
had not suffered Involuntary Termination.
(b) Termination for Cause. In the event of Termination for Cause,
the Company and the Savings Bank shall pay to the Employee the Salary and
provide benefits under this Agreement only through the Date of Termination, and
shall have no further obligation to the Employee under this Agreement.
(c) Voluntary Termination. The Employee's employment may be
voluntarily terminated by the Employee at any time upon at least 90 days'
written notice to the Company and the Savings Bank or such shorter period as may
be agreed upon between the Employee and the Board of Directors. In the event of
such voluntary termination, the Company and the Savings Bank shall be obligated
jointly to continue to pay to the Employee the Salary and provide benefits under
this Agreement only through the Date of Termination, at the time such payments
are due, and shall have no further obligation to the Employee under this
Agreement.
(d) Change in Control. In the event of Involuntary Termination after
a Change in Control which occurs at any time following the Effective Date while
the Employee is employed under this Agreement, the Company and the Savings Bank
jointly shall (i) pay to the Employee in
5
a lump sum in cash within 25 business days after the Date of Termination an
amount equal to 299% of the Employee's "base amount" as defined in Section 280G
of the Code; and (ii) provide to the Employee during the remaining term of this
Agreement substantially the same group life insurance, hospitalization, medical,
dental, prescription drug and other health benefits, and long-term disability
insurance (if any) for the benefit of the Employee and his dependents and
beneficiaries who would have been eligible for such benefits if the Employee had
not suffered Involuntary Termination, on terms substantially as favorable to the
Employee, including amounts of coverage and deductibles and other costs to him,
as if he had not suffered Involuntary Termination.
(e) Death. In the event of the death of the Employee while employed
under this Agreement and prior to any termination of employment, the Company and
the Savings Bank jointly shall pay to the Employee's estate, or such person as
the Employee may have previously designated in writing, the Salary which was not
previously paid to the Employee and which he would have earned if he had
continued to be employed under this Agreement through the last day of the
calendar month in which the Employee died, together with the benefits provided
hereunder through such date.
(f) Disability. If the Employee becomes entitled to benefits under
the terms of the then-current disability plan, if any, of the Company or the
Savings Bank (the "Disability Plan") or becomes otherwise unable to fulfill his
duties under this Agreement, he shall be entitled to receive such group and
other disability benefits, if any, as are then provided by the Company or the
Savings Bank for executive employees. In the event of such disability, this
Agreement shall not be suspended, except that (i) the obligation to pay the
Salary to the Employee shall be reduced in accordance with the amount of
disability income benefits received by the Employee, if any, pursuant to this
paragraph such that, on an after-tax basis, the Employee shall realize from the
sum of disability income benefits and the Salary the same amount as he would
realize on an after-tax basis from the Salary if the obligation to pay the
Salary were not reduced pursuant to this Section 7(f); and (ii) upon a
resolution adopted by a majority of the disinterested members of the Board of
Directors or the Committee, the Company and the Savings Bank may discontinue
payment of the Salary beginning six months following a determination that the
Employee has become entitled to benefits under the Disability Plan or otherwise
unable to fulfill his duties under this Agreement.
(g) Temporary Suspension or Prohibition. If the Employee is
suspended and/or temporarily prohibited from participating in the conduct of the
Savings Bank's affairs by a notice served under Section 8(e)(3) or (g)(1) of the
FDIA, 12 U.S.C. Section 1818(e)(3) and (g)(1), or pursuant to Section 32.16.090
of the Revised Code of Washington ("R.C.W."), the Savings Bank's obligations
under this Agreement shall be suspended as of the date of service, unless stayed
by appropriate proceedings. If the charges in the notice are dismissed, the
Savings Bank may in its discretion (i) pay the Employee all or part of the
compensation withheld while its obligations under this Agreement were suspended
and (ii) reinstate in whole or in part any of its obligations which were
suspended.
(h) Permanent Suspension or Prohibition. If the Employee is removed
and/or permanently prohibited from participating in the conduct of the Savings
Bank's affairs by an order issued under Section 8(e)(4) or (g)(1) of the FDIA,
12 U.S.C. Section 1818(e)(4) and (g)(1), or pursuant to R.C.W. 32.16.090, all
obligations of the Savings Bank under this Agreement shall
6
terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(i) Default of the Savings Bank. If the Savings Bank is in default
(as defined in Section 3(x)(1) of the FDIA), all obligations under this
Agreement shall terminate as of the date of default, but this provision shall
not affect any vested rights of the contracting parties.
(j) Termination by Regulators. All obligations under this Agreement
shall be terminated, except to the extent determined that continuation of this
Agreement is necessary for the continued operation of the Savings Bank: (1) at
the time the FDIC enters into an agreement to provide assistance to or on behalf
of the Savings Bank under the authority contained in Section 13(c) of the FDIA;
or (2) by the FDIC, at the time it approves a supervisory merger to resolve
problems related to operation of the Savings Bank. Any rights of the parties
that have already vested, however, shall not be affected by any such action.
(k) Reductions of Benefits. Notwithstanding any other provision of
this Agreement, if payments and the value of benefits received or to be received
under this Agreement, together with any other amounts and the value of benefits
received or to be received by the Employee, would cause any amount to be
nondeductible by the Company or any of the Consolidated Subsidiaries for federal
income tax purposes pursuant to or by reason of Section 280G of the Code, then
payments and benefits under this Agreement shall be reduced (not less than zero)
to the extent necessary so as to maximize amounts and the value of benefits to
be received by the Employee without causing any amount to become nondeductible
pursuant to or by reason of Section 280G of the Code. The Employee shall
determine the allocation of such reduction among payments and benefits to the
Employee.
(l) Further Reductions. Any payments made to the Executive pursuant
to this Agreement, or otherwise, are subject to and conditioned upon their
compliance with 12 U.S.C. Section 1828(k) and any regulations promulgated
thereunder.
8. Notice of Termination. In the event that the Company or the Savings
Bank, or both, desire to terminate the employment of the Employee during the
term of this Agreement, the Company or the Savings Bank, or both, shall deliver
to the Employee a written notice of termination, stating whether such
termination constitutes Termination for Cause or Involuntary Termination,
setting forth in reasonable detail the facts and circumstances that are the
basis for the termination, and specifying the date upon which employment shall
terminate, which date shall be at least 30 days after the date upon which the
notice is delivered, except in the case of Termination for Cause. In the event
that the Employee determines in good faith that he has experienced an
Involuntary Termination of his employment, he shall send a written notice to the
Company and the Savings Bank stating the circumstances that constitute such
Involuntary Termination and the date upon which his employment shall have ceased
due to such Involuntary Termination. In the event that the Employee desires to
effect a Voluntary Termination, he shall deliver a written notice to the Company
and the Savings Bank, stating the date upon which employment shall terminate,
which date shall be at least 90 days after the date upon which the notice is
delivered, unless the parties agree to a date sooner.
7
9. Attorneys' Fees. The Company and the Savings Bank jointly shall pay all
legal fees and related expenses (including the costs of experts, evidence and
counsel) incurred by the Employee as a result of (i) the Employee's contesting
or disputing any termination of employment, or (ii) the Employee's seeking to
obtain or enforce any right or benefit provided by this Agreement or by any
other plan or arrangement maintained by the Company or the Savings Bank (or a
successor) or the Consolidated Subsidiaries under which the Employee is or may
be entitled to receive benefits; provided that the Company's and the Savings
Bank's obligation to pay such fees and expenses is subject to the Employee's
prevailing with respect to the matters in dispute in any action initiated by the
Employee or the Employee's having been determined to have acted reasonably and
in good faith with respect to any action initiated by the Company or the Savings
Bank.
10. No Assignments.
(a) This Agreement is personal to each of the parties hereto, and no
party may assign or delegate any of its rights or obligations hereunder without
first obtaining the written consent of the other parties; provided, however,
that the Company and the Savings Bank shall require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) by
an assumption agreement in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company and/or the Savings Bank would be required to
perform it, if no such succession or assignment had taken place. Failure to
obtain such an assumption agreement prior to the effectiveness of any such
succession or assignment shall be a breach of this Agreement and shall entitle
the Employee to compensation and benefits from the Company and the Savings Bank
in the same amount and on the same terms as the compensation pursuant to Section
7(d) of this Agreement. For purposes of implementing the provisions of this
Section 10(a), the date on which any such succession becomes effective shall be
deemed the Date of Termination.
(b) This Agreement and all rights of the Employee hereunder shall
inure to the benefit of and be enforceable by the Employee's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
11. Notice. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to the Company and Savings Bank
at their home offices, to the attention of the Board of Directors with a copy to
the Secretary of the Company and the Secretary of the Savings Bank, or, if to
the Employee, to such home or other address as the Employee has most recently
provided in writing to the Company or the Savings Bank.
12. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
13. Headings. The headings used in this Agreement are included solely for
convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
8
14. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
15. Governing Law. This Agreement shall be governed by the laws of the
State of Washington.
16. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in accordance
with the rules of the American Arbitration Association then in effect. Judgment
may be entered on the arbitrator's award in any court having jurisdiction.
Notwithstanding the foregoing, the Company, the Savings Bank, or both may resort
to the Superior Court of Xxxxxx County, Washington for injunctive and such other
relief as may be available in the event that the Employee engages in conduct,
after termination of the Agreement that amounts to a violation of the Washington
Trade Secrets Act or amounts to unlawful interference with the business
expectancies of the Company or the Savings Bank.
17. Deferral of Non-Deductible Compensation. In the event that the
Employee's aggregate compensation (including compensatory benefits which are
deemed remuneration for purposes of Section 162(m) of the Code) from the Company
and the Consolidated Subsidiaries for any calendar year exceeds the maximum
amount of compensation deductible by the Company or any of the Consolidated
Subsidiaries in any calendar year under Section 162(m) of the Code (the "maximum
allowable amount"), then any such amount in excess of the maximum allowable
amount shall be mandatorily deferred with interest thereon at 8% per annum to a
calendar year such that the amount to be paid to the Employee in such calendar
year, including deferred amounts and interest thereon, does not exceed the
maximum allowable amount. Subject to the foregoing, deferred amounts including
interest thereon shall be payable at the earliest time permissible.
18. Knowing and Voluntary Agreement. Employee represents and agrees that
he has read this Agreement, understands its terms, and that he has the right to
consult counsel of choice and has either done so or knowingly waives the right
to do so. Employee also represents that he has had ample time to read and
understand the Agreement before executing it and that he enters into this
Agreement without duress or coercion from any source.
9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
Attest: RAINIER PACIFIC FINANCIAL GROUP, INC.
______________, Corporate Secretary By: ____________________________________
Its: Chairman of the Board of Directors
Attest: RAINIER PACIFIC SAVINGS BANK
______________, Corporate Secretary By: ____________________________________
Its: Chairman of the Board of Directors
EMPLOYEE
________________________________________
Xxxx X. Xxxx
10
