EXHIBIT 10.52
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is executed this
28th day of August, 1998 ("Execution Date") and is deemed effective as of
October 1, 1994 ("Effective Date") between SierraWest Bank, a California banking
corporation ("SierraWest"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ("▇▇▇▇").
1. SierraWest or its predecessors has employed ▇▇▇▇ pursuant to a
written employment agreement effective October 1, 1994, which agreement
has been amended by the parties from time to time.
2. SierraWest desires to continue to employ ▇▇▇▇ as President and
Chief Executive Officer of SierraWest, and ▇▇▇▇ desires to be so employed
by SierraWest and the Parties wish to make additional amendments to the
agreement.
3. This Agreement sets forth the restated and amended terms and
conditions of ▇▇▇▇'▇ continued employment as President and Chief
Executive Officer of SierraWest, and replaces and supercedes all prior
agreements relating to the subject matter hereof.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
EMPLOYMENT
1.
1.1 POSITION. ▇▇▇▇ will continue to be employed as President and Chief
Executive Officer ("CEO") of SierraWest from the date of this Agreement until
his employment is terminated pursuant to its terms. As President and CEO, ▇▇▇▇
shall: (a) report to the Board of Directors of SierraWest ("Board"); (b) assist
the Board in developing and implementing SierraWest's ongoing business strategy
and objectives; (c) exercise overall executive responsibility for the management
and operation of SierraWest; and (d) exercise such other duties, powers and
responsibilities not inconsistent with his role as President and CEO as the
Board in its judgment may assign to him from time to time. In addition, ▇▇▇▇
agrees to serve without additional compensation as a member of the Board of
SierraWest and/or of any of its subsidiaries and/or to hold additional offices
with SierraWest or any subsidiary, not inconsistent with his position as
President and CEO, if requested by the Board of SierraWest in the reasonable
exercise of its business judgment.
1.2 NON-COMPETITION DURING EMPLOYMENT. ▇▇▇▇ shall devote substantially all
of his business time, skill, attention and best efforts to SierraWest's business
and shall discharge and
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fulfill his responsibilities in a fully professional manner. ▇▇▇▇ shall not
render services to any other person or entity without the prior written
consent of SierraWest, nor engage in any activity which conflicts or
interferes with the full performance of his duties and responsibilities for
SierraWest. The above notwithstanding, nothing in this Agreement is intended
to preclude ▇▇▇▇ from engaging reasonably in charitable or community
activities so long as such activities do not interfere materially with the
full performance of his duties and responsibilities under this Agreement.
1.3 TERM OF EMPLOYMENT. ▇▇▇▇'▇ employment pursuant to this Agreement shall
continue until December 31, 2000, unless (i) sooner terminated in accordance
with Article 3 below or (ii) extended by written agreement of the parties
hereto.
ARTICLE 2
COMPENSATION
2.
2.1 SALARY. In consideration of services rendered, ▇▇▇▇ will be paid a base
salary at the rate of no less than $262,500 on an annualized basis, earned and
payable semi-monthly or otherwise as consistent with the regular payroll periods
and practices of SierraWest, less any deductions required by law or authorized
by ▇▇▇▇. ▇▇▇▇ will be considered for periodic increases in base salary pursuant
to SierraWest's normal policies and procedures for executive salary increases,
which currently provide for annual reviews of executive salaries. Any increases
shall be made in the sole business judgment of the Board in light of ▇▇▇▇'▇
performance, internal and external business conditions, and other factors
considered appropriate by the Board. ▇▇▇▇'▇ salary will not be reduced at any
time below its then current level, including any periodic increases which ▇▇▇▇
may have been granted, without both SierraWest's and ▇▇▇▇'▇ consent.
2.2 INCENTIVE COMPENSATION. ▇▇▇▇ is eligible to participate in SierraWest's
annual incentive compensation program as currently established and modified from
time to time. Eligibility does not guarantee the grant of any award, and actual
bonus(es) (if any) payable to ▇▇▇▇ will be determined by the terms of the Plan
or its successor. SierraWest reserves the right to modify, amend or discontinue
its annual incentive plan at any time.
2.3 BENEFITS. During the term of his employment under this Agreement, ▇▇▇▇
shall receive the following benefits:
(a) ▇▇▇▇ shall be eligible to participate or continue to participate
in all employee benefit plans maintained or hereinafter instituted by
SierraWest, including (without limitation) any disability, health,
accident and other insurance programs, paid vacations, and similar plans
or programs, subject in each case to the generally applicable terms and
conditions of the plan or program in question and to the determinations
of any committee administering such plan or program.
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(b) ▇▇▇▇ will continue to participate in the Salary Continuation Plan
under its existing terms and conditions, which currently provides for an
annual benefit of $50,000.00 per year for 20 years following retirement
at age 65 or earlier death. The amount and the extent of benefits to
which ▇▇▇▇ is entitled will be governed by the terms of the Salary
Continuation Plan, as may be amended from time to time.
(c) SierraWest will provide ▇▇▇▇, for his sole use, with an automobile
of a type and style consistent with his position as President and CEO and
his legitimate business needs. Alternatively, SierraWest may elect in its
sole discretion to provide ▇▇▇▇ with a car allowance which will enable
▇▇▇▇ to own or lease and operate an equivalent vehicle in accordance with
SierraWest's policies, as may be amended from time to time. The purchase
of an automobile for ▇▇▇▇ shall be subject to the approval of the
Compensation Committee of the Board.
(d) ▇▇▇▇ is eligible to participate in SierraWest's long-term
incentive plan as may be developed and as modified from time to time. In
addition, the Board may grant awards of SierraWest stock options to ▇▇▇▇
pursuant to its Stock Option Plan or otherwise. As of the Execution
Date, ▇▇▇▇ has been awarded options to purchase 99,487 shares of stock,
of which he has exercised 25,987 options. Any awards of stock options or
other long-term incentives are granted at the sole discretion of the
Board and subject to the terms of the Plan. SierraWest reserves the right
to modify, amend or discontinue its long-term incentive plan(s) at any
time.
Upon termination of ▇▇▇▇'▇ employment for any reason, ▇▇▇▇ shall retain all
rights to benefits vested as of the termination date under such plans and in
accordance with their terms. All further rights to participate in or earn
benefits under such plans shall cease as of the termination date.
2.4 EXPENSES. ▇▇▇▇ shall be reimbursed for reasonable travel and business
expenses incurred in the performance of his duties hereunder, subject to
approval of the Chairman of the Board.
2.5 MEMBERSHIPS AND OTHER MAJOR PURCHASES. SierraWest shall purchase and hold
in Executive's name for his use during the term of this Agreement, a full
membership in Montreux Country Club located in the State of Nevada. It is
agreed and understood that Executive has provided, and will continue to provide,
all requested particulars to the Board Compensation Committee, regarding this
membership and any other membership or other major purchases which the Board may
consider purchasing for the benefit of Executive. The Board will consider and
approve or disapprove such requests in the reasonable exercise of its business
judgment.
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2.5.1 Executive specifically agrees that in the event his employment is
terminated for any reason pursuant to which he is not entitled, under the
provisions of this Agreement, to retain ownership of the Montreux Country Club
membership, or any other membership which may have been purchased in his name,
he will promptly take all action necessary to transfer ownership of the
membership to SierraWest.
2.5.2 SierraWest specifically agrees that in the event ▇▇▇▇'▇ employment is
terminated for any reason pursuant to which is he entitled, under the provisions
of this Agreement, to retain ownership of the Montreux Country club membership,
or any other membership which may have been purchased in his name, and further
in the event that there exist any unpaid membership dues regarding the ownership
of the club membership, SierraWest will pay promptly those fees.
ARTICLE 3
TERMINATION OF EMPLOYMENT
3.
3.1 TERMINATION FOR CAUSE. SierraWest may terminate ▇▇▇▇'▇ employment for
cause without any breach of this Agreement at any time effective immediately
upon giving written notice. For purposes of this Agreement, Cause is defined as
any of the following:
(a) ▇▇▇▇'▇ conviction of (i) a felony, or (ii) misdemeanor involving
moral turpitude or financial misconduct;
(b) ▇▇▇▇ engaging in fraudulent or unethical business practices
forbidden by law or contrary to SierraWest's internally distributed
policies, including but not limited to financial reporting and
confidentiality requirements;
(c) ▇▇▇▇ misappropriating assets of SierraWest or any of its
affiliates;
(d) ▇▇▇▇ engaging in any of the following conduct (after thirty days'
written notice from SierraWest that he is subject to immediate
termination if such conduct continues or reoccurs): (i) continued failure
to perform his duties; (ii) repeated insobriety or drug use; (iii)
continued or repeated absence for reasons other than disability or
sickness; or (iv) failure to cure a material breach of this Agreement not
otherwise described in this Section 3.1.
A determination that cause as defined in subsections (b) through (d) has
occurred shall be made by a vote of a majority of the Board. Upon a Termination
for Cause, SierraWest shall pay ▇▇▇▇ only: (i) his base salary through the date
of termination at the rate in effect at that time; (ii) vacation and personal
days accrued but unpaid through the date of termination; and (iii) reimbursement
for any approved unreimbursed expenses incurred pursuant to Section 2.4 hereof.
SierraWest shall have no further obligation or liability to ▇▇▇▇, except with
respect to
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benefits already vested pursuant to the terms of the respective benefits
plans.
3.2 TERMINATION ON DEATH. ▇▇▇▇'▇ employment pursuant to this Agreement shall
terminate immediately upon his death. In such event, SierraWest shall pay to
▇▇▇▇'▇ surviving spouse or his estate, as appropriate: (i) his salary through
the date of termination at the rate in effect at that time; (ii) accrued but
unpaid vacation and personal days through the date of termination; (iii) an
amount equal to any bonus he would have been awarded, paid on a prorate basis,
after the end of SierraWest's year and in conjunction with other executive bonus
payments; and (iv) reimbursement for approved unreimbursed expenses incurred
pursuant to Section 2.4 herein. SierraWest shall have no further obligation or
liability to ▇▇▇▇, except with respect to benefits already vested pursuant to
the terms of the respective benefits plans.
3.3 TERMINATION FOR COMPLETE DISABILITY. SierraWest, at its option and upon
written notice to ▇▇▇▇, may terminate ▇▇▇▇'▇ employment without any breach of
this Agreement upon ▇▇▇▇'▇ complete disability. For purposes of this Agreement,
Complete Disability is defined as being unable to perform or substantially
impaired in the performance of duties hereunder by reason of illness or other
physical or mental incapacity for more than one-half of the business days in any
six (6) month period. Termination for Complete Disability shall be effective
upon the giving of written notice. In such event, SierraWest shall pay to ▇▇▇▇:
(i) his salary through the date of termination at the rate in effect at that
time; (ii) accrued but unpaid vacation and personal days through the date of
termination; (iii) an amount equal to any bonus he would have been awarded, paid
on a prorate basis, after the end of SierraWest's year and in conjunction with
other executive bonus payments; and (iv) reimbursement for approved unreimbursed
expenses incurred pursuant to Section 2.4 herein. SierraWest shall have no
further obligation or liability to ▇▇▇▇, except with respect to benefits already
vested pursuant to the terms of the respective benefits plans.
3.4 TERMINATION WITHOUT CAUSE OR UPON REORGANIZATION OR AT THE EXPIRATION OF
THE TERM. SierraWest may terminate ▇▇▇▇'▇ employment without any breach of this
Agreement at any time and upon written notice Without Cause, which for purposes
of this Agreement means for any reasons other than for Cause, upon Death or for
Complete Disability. SierraWest may also terminate ▇▇▇▇'▇ employment without
any breach of this Agreement upon a Change of Control as defined herein. In
the event of Termination Without Cause or Termination upon a Change of Control,
or in the event that this Agreement expires at the end of its term and the
parties fail to extend, renew or replace it with another employment agreement
("Termination at the Expiration of the Term), SierraWest shall pay to ▇▇▇▇ the
following, in liquidation of all its obligations under this Agreement: (i) his
salary through the date of termination at the rate in effect at that time; (ii)
his accrued but unpaid vacation and personal days through the date of
termination; (iii) an amount equal to any bonus he would have been awarded, paid
on a prorata basis, after the end of SierraWest's year and in conjunction with
other executive bonus payments; (iv) reimbursement for approved unreimbursed
expenses incurred pursuant to Section 2.4 herein; (v) transfer to or retention
of (as applicable) his ownership, without penalty, of the automobile and club
membership provided pursuant to PARA 2.3(c) and PARA 2.5 respectively of this
Agreement; (vi) an amount in the nature of severance pay equal to 18 months'
base salary, payable in a lump sum as soon after the date of termination as is
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practicable; and (vii) direct payment of premiums necessary for ▇▇▇▇ to continue
his existing medical coverage for 18 months under SierraWest's group health
plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986, as
amended ("COBRA") so that any expense to ▇▇▇▇ to continue such coverage is
comparable to the expense which employees comparable to ▇▇▇▇ and still employed
by SierraWest are charged for comparable benefits. SierraWest shall have no
further obligation or liability to ▇▇▇▇, except with respect to benefits already
vested pursuant to the terms of the respective benefit plans.
For the purposes hereof, "Change of Control" is defined as any one of the
following, provided however that Change of Control shall be without the monetary
assistance of the FDIC: (i) an acquisition (other than directly from SierraWest)
by an individual, entity or group (excluding SierraWest or one of its employee
benefit plans or an entity controlled by SierraWest's shareholders) of 20% or
more of SierraWest's common stock or voting securities; (ii) a change in a
majority of the current Board of Directors (excluding any persons approved by a
vote of at least a majority of the Board other than in connection with an actual
or threatened proxy contest); (iii) liquidation or dissolution of SierraWest or
a merger, consolidation or sale of all or substantially of the SierraWest's
assets ("Business Combination") other than one in which all or substantially all
of SierraWest's shareholders receive 50% or more of the stock of the company
resulting from the Business Combination, at least a majority of the board of
directors of the resulting corporation were members of the incumbent board, and
after which no person owns 20% or more of the stock of the resulting corporation
who did not own such stock immediately before the Business Combination.
3.5 VOLUNTARY TERMINATION. ▇▇▇▇ may terminate employment at any time for
personal reasons by giving SierraWest 90 days' advance written notice of such
termination. In this event, SierraWest will pay the salary, accrued vacation and
personal days to which ▇▇▇▇ is entitled through the end of the notice period or
any other period ▇▇▇▇ continues to provide service as mutually agreed, and
SierraWest's obligations under this Agreement will then cease. ▇▇▇▇ agrees to
cooperate fully with SierraWest and the Board during the notice period or other
period as agreed in order to effectuate as smooth a transition as possible. ▇▇▇▇
will not be entitled to any annual or long-term incentive award for the year in
which he voluntarily terminates his employment. SierraWest shall have no
further obligation or liability to ▇▇▇▇, except with respect to benefits already
vested pursuant to the terms of the respective benefits plans.
3.6 TERMINATION FOR GOOD REASON. ▇▇▇▇ may also terminate his employment for
"Good Reason". For purposes of this Agreement, Good Reason shall mean any one
of the following: (i) any assignment to ▇▇▇▇ of duties other than those
contemplated by this Agreement or in accordance with those typically assumed by
a President and Chief Executive Officer or which represent a material reduction
in the scope and authority of ▇▇▇▇'▇ position; (ii) a SierraWest required
relocation of ▇▇▇▇'▇ principal place of work which requires an increase in
▇▇▇▇'▇ normal commute of more than 35 miles; (iii) any reduction in salary below
his then current salary level which is not agreed to by ▇▇▇▇; or (iv) within the
period up to 365 days following a Change of Control, ▇▇▇▇ concludes in good
faith and so notifies SierraWest or its successor on sixty (60) days' written
notice that, because of changes following the Change of Control,
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he can no longer properly or effectively discharge his duties and
responsibilities, whether as President and CEO or otherwise as assigned and
mutually agreed at that time. If ▇▇▇▇ terminates his employment for Good
Reason, he shall be entitled to those benefits he would have received in the
event of Termination Upon Change of Control.
3.7 TERMINATION OBLIGATIONS. ▇▇▇▇ acknowledges and agrees that all personal
property and equipment furnished to or prepared by ▇▇▇▇ in the course of or
incident to his employment belong to the SierraWest and shall be promptly
returned to SierraWest upon termination of employment.
3.8 NON-COMPETITION FOLLOWING TERMINATION. Following termination of
employment for any reason other than in connection with a Change of Control, and
while receiving any termination payments from SierraWest or its successor, ▇▇▇▇
shall not provide service or assistance to or otherwise become associated with,
either an employee, director, owner, consultant or other affiliate, any business
within 125 miles of any SierraWest facility or subsidiary whose principal
business activities compete with the principal business activities of SierraWest
or any subsidiary. The requirement regarding non-competition shall be
eliminated in the event that ▇▇▇▇'▇ employment is terminated either by
SierraWest, or any successor, in connection with a Change of Control or by
▇▇▇▇'▇ resignation for Good Reason in connection with a Change of Control. In
addition, for a period of two years from the date of termination ▇▇▇▇ shall not,
directly or indirectly, solicit, entice or encourage any then-current employees
of SierraWest to terminate their employment with SierraWest or its Affiliates
and accept employment with any company, partnership, corporation or other
organization of which ▇▇▇▇ is a partner, employee, stock holder, director,
officer, consultant or otherwise is affiliated.
3.9 PROPRIETARY INFORMATION. During the Period of Employment and for two
years following any termination of employment, ▇▇▇▇ shall not, without written
consent of SierraWest, disclose to any person, other than an employee of
SierraWest or its Affiliates, or use for his own benefit, any material
confidential or proprietary information or any trade secrets obtained while an
employee of SierraWest. For purposes of this agreement, confidential or
proprietary information means all business information of whatever nature
regarding SierraWest, its subsidiaries and affiliated companies, or about any of
its products, potential products, lending or distribution processes which is not
generally known to the public at large. Trade secrets means information which
derives independent economic value from not being generally known to the public
or to others who can derive economic value from its disclosure or use and is the
subject of reasonable efforts to maintain its secrecy. This information
specifically includes but is not limited to technological information, customer
lists, types and prices of product, future plans, sales methods, and salary and
other personnel information.
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ARTICLE 4
MISCELLANEOUS
4.
4.1 INDEMNIFICATION. SierraWest shall indemnify and hold harmless ▇▇▇▇ to
the maximum extent permitted by law against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees incurred by him,
in connection with the defense of, or as a result of any action or proceeding in
which he is made or is threatened to be made a party by reason of the fact that
he is or was an officer of the Company, regardless of whether such action or
proceeding is one brought by or in the right of SierraWest. ▇▇▇▇ agrees to
reimburse SierraWest for all sums paid pursuant to this provision in the event
it is ultimately determined by a court of competent jurisdiction that payment of
any specific sum was inappropriate under this provision. SierraWest represents
and warrants that these undertakings are not in conflict with its articles or
bylaws or with any validly existing agreement or other proper corporate action.
4.2 ASSIGNMENT. This Agreement may not be assigned by either party hereto
without the prior written consent of the other. This Agreement is personal to
▇▇▇▇ and, except as expressly set forth herein, the rights of ▇▇▇▇ hereunder
shall not inure to any successor, assignee, beneficiary or legal representative
of ▇▇▇▇.
4.3 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
4.4 NOTICES. All notices hereunder shall be in writing and shall be deemed
given upon personal delivery or upon certified mailing, return receipt
requested, to the addresses set forth below:
If to SierraWest:
SierraWest Bank
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chairman of the Board
If to ▇▇▇▇:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
SierraWest Bank
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party may change its notice address by written notice to the other in
accordance herewith.
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4.5 AMENDMENT: ENTIRE AGREEMENT. This Agreement may be amended only by a
writing signed by both parties. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof, and
expressly terminates and supersedes any and all prior oral and written
understandings and agreements with regard to such subject matter.
4.6 ATTORNEY'S FEES. If any action is brought hereunder, the prevailing
party shall be entitled to recover all costs of such action, including, without
limitation, reasonable attorneys' fees, to be fixed by the court or arbitrator
in such action.
4.7 ARBITRATION. SierraWest and ▇▇▇▇ understand and agree that in the event
that any dispute arises between the parties as to interpretation, validity, or
enforcement of any part of this Agreement, any and all such disputes shall be
resolved exclusively through final and binding arbitration in Sacramento,
California, in accordance with the Commercial Arbitration Rules, then existing,
of the American Arbitration Association ("Association"). Judgment may be entered
on the arbitrator's award in any court having jurisdiction; provided however
that SierraWest shall be entitled to seek a restraining order or injunction in
any court of competent jurisdiction to prevent any continuation of any violation
of the confidentiality or non-compete provisions of this Agreement and ▇▇▇▇
hereby consents that such restraining order or injunction may be granted without
the necessity of SierraWest posting any bond.
4.8 SEVERABILITY AND ENFORCEMENT. If any provision of this Agreement shall
be held by a court of competent jurisdiction to be invalid, unenforceable, or
void, the remainder of the Agreement shall remain in full force and effect.
4.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as
of October 1, 1994.
SIERRAWEST BANK, a California banking corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: 9/4/98
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman of the Board
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Date: 8/28/98
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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