EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
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This Executive Employment Agreement (the "Agreement") is dated
effective as of the filing, with the Secretary of State of Oregon, of the Plan
of Merger by and between Umpqua Holdings Corporation ("Umpqua") and VRB Bancorp
pursuant to an Agreement and Plan of Reorganization dated August 14, 2000 (the
"Effective Date"), and is by and between Umpqua and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
("Executive").
1. EMPLOYMENT. Umpqua, either directly or through one of its wholly
owned subsidiaries, employs the Executive and the Executive accepts that
employment on the terms and conditions contained in this Agreement.
2. TERM. Umpqua agrees to employ the Executive for a period of two (2)
years commencing on the Effective Date (the "Term"), unless that employment is
terminated earlier in accordance with this Agreement.
3. DUTIES; POSITION.
3.1 Position. Executive shall be employed as President and
Chief Executive Officer of South Umpqua Bank (the "Bank") in Roseburg,
Oregon, and as such will have overall responsibility for the operations
of the Bank and such other duties as may be designated by the Board of
Directors of the Bank and will report to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇. Executive
will also serve as Executive Vice President of Umpqua.
3.2 Obligations of Executive.
(a) Executive agrees that to the best of his ability and
experience Executive will at all times loyally and conscientiously
perform all of the duties and obligations required of and from
Executive pursuant to the express and implicit terms of this Agreement
and at the direction of the Board of Directors.
(b) Executive agrees that Executive will devote all of his
business and professional time and attention to the business affairs of
the Bank. Executive shall not be employed by any person (including any
individual or entity) other than the Bank in connection with any other
business activity.
4. BASE COMPENSATION. For services performed under this Agreement,
Executive shall be entitled to a salary ("Base Salary") of a minimum of Sixteen
Thousand Twenty-Five and 64/100 Dollars ($16,025.64) per month together with
perquisites provided to senior officers of the Bank, commencing on the Effective
Date. Prior to the Effective Date, the Executive will continue to receive
compensation at his current rate and participate in his current incentive
compensation plan. Commencing on January 1, 2001, the Executive shall be
entitled to participate in an executive incentive compensation plan, which plan
shall provide Executive with the opportunity to earn up to thirty percent (30%)
of Executive's Base Salary each fiscal year as a cash bonus, to be developed and
approved by the Board of Directors of the Bank after the Effective Date. The
Executive shall be entitled to such increase in Base Compensation as the Board
of Directors may authorize in its sole discretion upon an annual performance
review. The Executive is also entitled to a term life insurance policy with a
death benefit of Three Hundred Fifty Thousand Dollars $350,000 through December
31, 2002, and One Hundred Fifty Thousand Dollars ($150,000) thereafter, payable
to such beneficiary the Executive shall designate (or if no designation is made,
to his estate), group health insurance for himself and his spouse paid for by
Umpqua, paid long term disability insurance under the Umpqua group plan, four
(4) weeks vacation, an automobile allowance of Six Hundred Dollars ($600) per
month, and a reimbursement of reasonable relocation expenses payable within one
(1) week of Executive's relocation to Roseburg, Oregon.
5. TERMINATION. The employment of Executive shall terminate upon the
occurrence of any one or more of the events in this Section 5.
5.1 For Cause. The Bank's termination of Executive for Cause
(as defined in Section 6.1 below) ("Termination For Cause").
5.2 Without Cause. The termination of Executive without Cause,
at any time at the Bank's sole discretion, for any or no reason other
than for Cause ("Termination Without Cause").
5.3 For Good Reason. Executive's termination of his employment
for Good Reason (as defined in Section 6.2 below) within the ninety
(90) day period immediately following one of the events set forth in
Section 6.2 below ("Termination For Good Reason").
5.4 End of Term. Upon the expiration of the Term of this
Agreement, the employment of Executive shall revert to
employment-at-will unless this Agreement is renewed or extended in
writing by the parties.
5.5 Death or Disability. Upon Executive's death or Disability
(as defined in Section 6.3 below).
5.6 Resignation. Upon Executive's voluntary resignation in
writing to Umpqua at least sixty (60) days prior to the effective date
of such resignation ("Resignation"); provided Executive's Resignation
shall not be permitted if an event has occurred that would give rise to
a Termination For Cause.
6. DEFINITIONS.
6.1 Cause. For the purposes of this Agreement, "Cause" for
Executive's termination will exist upon the occurrence of one or more
of the following events:
(a) Dishonest or fraudulent conduct by Executive with
respect to the performance of his duties with Umpqua or the
Bank;
(b) Conduct by Executive that materially discredits
Umpqua or the Bank or is materially detrimental to the
reputation of Umpqua or the Bank, including conviction or a
plea of nolo contendere of Executive of a felony or crime
involving moral turpitude;
(c) Executive's willful misconduct or gross
negligence in performance of his duties under this Agreement,
including but not limited to Executive's refusal to comply in
any material respect with the legal directives of the Board of
Directors of the Bank;
(d) An order from a state or federal banking
regulatory agency requesting or requiring removal of Executive
or a finding by any such agency that Executive's performance
threatens the safety or soundness of Umpqua or any of its
subsidiaries;
(e) Executive's failure to materially perform the
duties set forth in Section 4 of this Agreement; or
(f) Material breach of Executive's fiduciary duties
to Umpqua or the Bank.
6.2 Good Reason. For purposes of this Agreement, "Good Reason"
for Executive's termination will exist upon the occurrence of one or
more of the following events:
(a) A material adverse change in Executive's position
causing such position to be of materially reduced stature or
responsibility;
(b) A reduction of Executive's Base Salary unless in
connection with, and to the same degree as, reductions in the
salaries of all or substantially all executive officers of the
Bank; or
(c) An unconsented requirement for Executive to
relocate to a facility or location more than twenty (20) miles
from Roseburg, Oregon (or more than twenty (20) miles from
Eugene, Oregon, if relocation to Eugene is requested by the
Board of Directors and the Bank offers to reimburse Executive
for his reasonable relocation expenses from Roseburg to
Eugene).
6.3 Disability. For purposes of this Agreement, "Disability"
shall mean that Executive has been unable to perform his duties under
this Agreement as a result of his incapacity due to physical or mental
illness, and such inability, which continues for at least one hundred
twenty (120) consecutive calendar days or one hundred fifty (150)
calendar days during any consecutive twelve (12) month period, if
shorter, after its commencement, is determined to be total and
permanent and under which the Executive is unable to perform the
essential functions of his position with or without reasonable
accommodation, by a physician selected by Umpqua and its insurers and
acceptable to Executive or Executive's legal representative (with such
agreement on acceptability of the physician not to be unreasonably
withheld).
7. SEVERANCE BENEFITS. Executive shall be entitled to receive severance
benefits upon termination of employment only as set forth in this Section 7.
7.1 Termination Without Cause or For Good Reason. In the event of a
Termination Without Cause or Termination For Good Reason during the Term hereof,
Executive will receive payment for all Base Salary and benefits accrued as of
the date of Executive's termination together with severance benefits equal to:
(i) if such termination occurs on or prior to December 31,
2001, the amount of Two Hundred Fifty Thousand Dollars ($250,000), or
(ii) if such termination occurs on or after January 1, 2002,
the amount of one (1) years Base Salary and the amount equal to the
cash bonus paid to Executive by Umpqua for the previous fiscal year.
All Base Salary and benefits accrued as of the date of
termination shall be paid on the date of termination. Severance
benefits under this subparagraph shall be paid in twelve (12) equal
monthly installments. All severance benefit payments are conditioned
upon Executive not being in violation of any material term of this
Agreement and Executive not, on any payment date, Competing (as defined
in Section 0 below) with Umpqua.
7.2 Termination by Reason of Death or Disability. In the event of a
termination by reason of death or Disability, Executive (or in the event of
death, Executive's estate) will receive payment on the date of termination for
all Base Salary and benefits accrued as of the date of Executive's termination.
7.3 Resignation by Executive. In the event of a Resignation between one
hundred eighty (180) days and one (1) year after the Effective Date, Executive
will receive payment for all Base Salary and benefits accrued as of the date of
Executive's resignation together with severance benefits equal to six (6) months
Base Salary. All Base Salary and benefits accrued as of the date of termination
shall be paid on the date of termination. Severance benefits under this
subparagraph shall be paid in six (6) equal monthly installments. All severance
benefit payments are conditioned upon Executive not being in violation of any
material term of this Agreement and the Executive not, on any payment date,
Competing with Umpqua.
7.4 Termination Relating to a Change in Control.
(a) In the event of a Termination Without Cause in
anticipation of, in connection with, or within one hundred eighty (180)
days of the closing date of a Change in Control or a Termination For
Good Reason within one hundred eighty (180) days of the closing date of
a Change in Control, then Umpqua, or its successor in interest, shall
pay Executive all Base Salary and benefits accrued as of the date of
termination together with severance benefits equal to:
(i) if such termination occurs on or prior to
December 31, 2001, the amount of Two Hundred Fifty Thousand
Dollars ($250,000), or
(ii) if such termination occurs on or after January
1, 2002, the amount of one (1) years Base Salary and an amount
equal to the cash bonus paid to Executive by Umpqua for the
previous fiscal year.
All Base Salary and benefits accrued as of the date of
termination shall be paid on the date of termination. Severance
benefits under this subparagraph shall be paid in twelve (12) equal
monthly installments following such termination. All severance benefit
payments are conditioned upon Executive not being in violation of any
material term of this Agreement and the Executive not, on any payment
date, Competing with Umpqua.
(b) In the event of a Termination Without Cause or a
Termination For Good Reason one hundred eighty (180) days or more after
the closing date of a Change in Control, then Umpqua, or its successor
in interest, shall pay Executive all Base Salary and benefits accrued
as of the date of termination together with severance benefits equal
to:
(i) if such termination occurs on or prior to
December 31, 2001, the amount of One Hundred Twenty-Five
Thousand Dollars ($125,000), or
(ii) if such termination occurs on or after January
1, 2002, the amount of six (6) months Base Salary and the
amount equal to one-half (1/2) of the cash bonus paid to
Executive by Umpqua for the previous fiscal year.
If Executive is entitled to severance benefits under this
subparagraph and under Section 7.1 of this Agreement, then Executive is
entitled to receive only the greater of the two severance benefits. All
Base Salary and benefits accrued as of the date of termination shall be
paid on the date of termination. Severance benefits under this
subparagraph shall be paid in six (6) equal monthly installments
following such termination. All severance benefit payments are
conditioned upon Executive not being in violation of any material term
of this Agreement and the Executive not, on any payment date, Competing
with Umpqua.
(c) In the event of a Resignation between one hundred eighty
(180) days and one (1) year after the closing date of a Change in
Control, then Umpqua, or its successor in interest, shall pay Executive
all Base Salary and benefits accrued as of the date of termination
together with severance benefits equal to:
(i) if such termination occurs on or prior to
December 31, 2001, the amount of One Hundred Twenty-Five
Thousand Dollars ($125,000), or
(ii) if such termination occurs on or after January
1, 2002, six (6) months Base Salary and an amount equal to
one-half (1/2) of the cash bonus paid to Executive by Umpqua
for the previous fiscal year.
If Executive is entitled to severance benefits under this
subparagraph and under Section 7.3 of this Agreement, then Executive is
entitled to receive only the greater of the two severance benefits. All
Base Salary and benefits accrued as of the date of termination shall be
paid on the date of termination. Severance benefits under this
subparagraph shall be paid in six (6) equal monthly installments. All
severance benefit payments are conditioned upon Executive not being in
violation of any material term of this Agreement and the Executive not,
on any payment date, Competing with Umpqua. After the six (6) initial
monthly severance benefit payments, Umpqua shall pay Executive
additional monthly severance benefits for up to an additional six (6)
months; provided Executive is not employed during such month.
7.5 Section 280G. If the payment under this Section 7, either alone or
together with other payments to which the Executive is entitled to receive from
Umpqua, would constitute an "excess parachute payment" as defined in Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), such
severance payment shall be reduced to the largest amount that will result in no
portion of the payment under this Section 7 being subject to the excise tax
imposed by Section 4999 of the Code. The determination of any reduction in the
severance payment under this Section 7 pursuant to the foregoing provisions,
shall be made by mutual agreement of Umpqua and the Executive.
7.6 Competing. For purpose of this Section 7, "Competing" shall mean
any activity of the Executive as an officer, director, owner (except for an
ownership of less than three percent (3%) of any publicly traded security),
employee, consultant or otherwise, of a financial services company with an
office or doing business within fifty (50) miles of any office or branch of
Umpqua or any of its subsidiaries, at the time of such termination.
7.7 COBRA. In the event of a termination and while Executive is
entitled to receive severance benefit payments, Umpqua shall provide COBRA
benefits consistent with health insurance coverage prior to termination;
provided Executive and his spouse are eligible to receive such benefits under
applicable law.
8. DEFINITION OF CHANGE IN CONTROL. For the purposes of this Agreement,
a "Change in Control" shall be deemed to have occurred when any of the following
events takes place:
8.1 Acquisition of Fifty Percent or More of Voting Power. Any
person (including any individual or entity) or persons acting in
concert becomes the beneficial owner of voting shares representing
fifty percent (50%) or more of the voting power of Umpqua.
8.2 Removal of Directors. A majority of the Board of Directors
of Umpqua are removed from office by a vote of the shareholders of
Umpqua over the recommendation of the Board of Directors then serving.
8.3 Merger. Umpqua is a party to a plan of merger or plan of
exchange and upon consummation of such plan, the shareholders of Umpqua
immediately prior to the transaction do not own or continue to own at
least a majority of the shares of the surviving company.
9. ARBITRATION. Any dispute or claim arising out of or in connection
with this Agreement will be finally settled by binding arbitration in Portland,
Oregon in accordance with the rules of the American Arbitration Association by
one (1) arbitrator appointed in accordance with said rules. The arbitrator shall
apply Oregon law, without reference to rules of conflicts of law or rules of
statutory arbitration, to the resolution of any dispute. Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Notwithstanding the foregoing, the parties may apply to any court of
competent jurisdiction for preliminary or interim equitable relief, or to compel
arbitration in accordance with this Section 9, without breach of this
arbitration provision.
10. CONFIDENTIAL INFORMATION. The parties acknowledge that in the
course of Executive's duties he will have access to and become familiar with
certain proprietary and confidential information of Umpqua and its subsidiaries
and other information not known by its actual or potential competitors.
Executive acknowledges that such information constitutes valuable, special, and
unique assets of Umpqua's business, even though such information may not be of a
technical nature and may not be protected under trade secret or related laws.
Executive agrees that he will hold in a fiduciary capacity and will not use for
himself and will not reveal, communicate, or divulge during the period of his
employment with Umpqua or at any time thereafter, and in any manner whatsoever,
any such date and confidential information of any kind, nature, or description
concerning any matters affecting or relating to Umpqua's business, its
customers, depositors or its services, to any person, firm, entity, or company
other than Umpqua or persons, firms, entities, or companies designated by
Umpqua. Executive agrees that all memoranda, notes, records, papers, customer
files, and other documents, and all copies thereof relating to Umpqua's
operations or business, or matters related to any of Umpqua's customers or
depositors, some of which may be prepared by Executive, and all objects
associated therewith in any way obtained by Executive, shall be Umpqua's
property.
11. NONSOLICITATION AGREEMENT. Executive will not solicit any customer
or depositor of Umpqua or any of its subsidiaries for any financial services or
products, or solicit any employee of Umpqua any of its subsidiaries for
employment with any other company provided Executive receives consideration as
follows:
Step 1 During the two year term of this Agreement, under any
circumstance where Executive is entitled to severance pay and Umpqua is
committed to pay severance, Executive will be bound by this
nonsolicitation provision for the length of time Executive would be
entitled to such severance pay, even if Executive chooses to compete
and Umpqua is relieved of any payment during that period of time for
which Umpqua would otherwise have been obligated to pay the Executive
not to compete.
Step 2 At termination anytime, even at some future date after
the expiration of the term of this Agreement, if there is a time when
Umpqua is not obligated to pay severance, but, nonetheless, offers to
pay Executive's Base Salary for any length of time up to one year,
Executive agrees not to solicit or to compete (as defined at paragraph
7.6) during the period of time for which Executive is actually paid. If
Executive chooses to compete, thereby negating the obligation to pay
his Base Salary for this period of time (up to a year), nonetheless
because Umpqua had been willing to pay full Base Salary during that
period of time, Executive will not be relieved of the nonsolicitation
obligation during that period of time during which Umpqua had offered
to pay Executive's full Base Salary.
12. NOTICES. All notices, requests, demands, and other communications
provided for by this Agreement will be in writing and shall be deemed sufficient
upon receipt, when delivered personally or by a nationally-recognized delivery
service (such as Federal Express), or three (3) business days after being
deposited in the U.S. mail as certified mail, return receipt requested, with
postage prepaid, if such notice is addressed to the party to be notified at such
party's address as set forth below or as subsequently modified by written
notice.
To Umpqua: Umpqua Holdings Corporation
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Attention: Secretary
To Executive: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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13. GENERAL PROVISIONS.
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13.1 Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Oregon, without giving effect to the principles of conflict of laws.
13.2 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, the parties agree to renegotiate such
provision(s) in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provisions were so excluded, and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
13.3 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together will constitute
one and the same instrument.
13.4 Entire Agreement. This Agreement constitutes the sole agreement of
the parties and supersedes all oral negotiations and prior writings with respect
to the subject matter hereof.
13.5 Previous Employment Agreement. This Agreement supercedes all
existing agreements regarding employment and severance with Umpqua, the Bank,
VRB Bancorp or Valley of the Rogue Bank, including but not limited to that
certain Employment Agreement dated January 10, 1996, by and between Executive
and Valley of the Rogue Bank; provided however, terms relating to Employee's
stock options that are set forth in existing agreements remain in effect except
as may be affected by the terms of the Plan of Merger.
13.6 Waiver. No waiver of any provision of this Agreement shall be
valid unless in writing, signed by the party against whom the waiver is sought
to be enforced. The waiver of any breach of this Agreement or failure to enforce
any provision of this Agreement shall not waive any later breach.
13.7 Assignment. Executive shall not assign or transfer any of his
rights pursuant to this Agreement, wholly or partially, to any other person or
to delegate the performance of its duties under the terms of this Agreement.
13.8 Attorneys' Fees. In the event of any arbitration or legal
proceeding relating to this Agreement, the prevailing party in such proceeding
shall be entitled to recover reasonable attorneys' fees in such proceeding, or
any appeal thereof, to be set by the arbitrators or the court without the
necessity of hearing testimony or receiving evidence, in addition to the costs
and disbursements allowed by law.
14. ADVICE OF COUNSEL. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES THAT, IN
EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK
THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD
ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL
NOT BE CONSTRUED AGAINST ANY PARTY BE REASON OF THE DRAFTING OR
PREPARATION HEREOF.
UMPQUA HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
EXECUTIVE
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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