SONOMA VALLEY BANK SEVERANCE AGREEMENT
EXHIBIT
10.13
SONOMA
VALLEY BANK
This
SEVERANCE AGREEMENT (the "Agreement"), dated as of October 15, 2008, is
made and entered into by and between Sonoma Valley Bank, a California
corporation (the "Company"), and __________________ (the
"Executive").
WHEREAS,
this Agreement is being entered into in order to set forth the specific
severance compensation that the Company agrees it will pay to the Executive if
the Executive's employment with the Company terminates under certain
circumstances described herein;
NOW,
THEREFORE, in consideration of the continued service of the Executive as the
_____________ Officer of the Company, the mutual covenants and agreements
contained in this Agreement, and for such other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto agree as
follows:
1. Agreement to Provide Base
Salary. In the event the Executive is, within 24 months
following a Change in Control of the Company (as defined in Section 3
below) and during the Term of this Agreement (as defined in Section 7
below), actually terminated from his/her employment with the Company or
constructively terminated from his/her employment with the Company, he/she shall
receive in one lump sum cash payment in an amount equal to _____ year(s) of
his/her base salary at the time of such termination; provided that no benefit
shall be payable hereunder if the Executive's employment is terminated by reason
of any act or failure to act by the Executive which constitutes (i) gross
malfeasance in the performance of his/her duties, (ii) fraud, deceit, theft
or embezzlement against the Company that could reasonably subject the Executive
to either civil or criminal liability, (iii) any act of personal dishonesty
that is injurious to the Company, or (iv) disloyalty against the Company
including without limitation aiding competitors of the Company. The Company, in
its sole and absolute discretion, may pay the amount specified above to the
Executive in 12 equal monthly installments. Any election by the
Company to pay the base salary cash payment as provided hereunder shall be made
no later than the effective date of the Executive's actual or constructive
termination as defined herein.
2. Base
Salary. For purposes of this Agreement, the Executive's base
salary at any time shall be equal to his/her regular annual salary without
regard to any bonuses, incentive payments, cash or non-cash allowances or other
fringe benefits.
3. Change in
Control. For the purposes of this Agreement, a "Change in
Control" shall include any of the following (and for purposes of this provision,
the term "corporation" shall mean the Company as defined herein:
A. Change in the Ownership of a
Corporation. A change in the ownership of a corporation occurs on the
date that any one person or persons acting as a group, acquires ownership of
stock of the corporation that, together with stock held by such person or group,
constitutes more than fifty percent (50%) of the total fair market value or
total voting power of the stock of such corporation. The acquisition of
additional stock by the same person or group is not considered to cause a change
in the ownership of the corporation.
B. Change in the Effective
Control of a Corporation. A change in the effective control of
the corporation shall be deemed to occur on either of the following
dates:
(i) The date
any one person, or persons acting as a group acquires (or has acquired during
the twelve (12)-month period ending on the date of the most recent acquisition
by such person or group) ownership of stock of the corporation possessing thirty
percent (30%) or more of the total voting power of the stock of such
corporation; or
(ii) The date
a majority of members of the corporation's board of directors is replaced during
any twelve (12)-month period by directors whose appointment or election is not
endorsed by a majority of the members of the corporation's board of directors
before the date of the appointment or election.
C. Change in the Ownership of a
Substantial Portion of a Corporation's Assets. A change in the ownership
of a substantial portion of a corporation's assets shall be deemed to occur on
the date that any one person or group acquires (or has acquired during the
twelve (12)-month period ending on the date of the most recent acquisition by
such person or persons) assets from the corporation that have a total gross fair
market value equal to or more than forty percent (40%) of the total gross fair
market value of all of the assets of the corporation immediately before such
acquisition or acquisitions. No Change in Control shall result if the assets are
transferred to certain entities controlled directly or indirectly by the
shareholders of the transferring corporation.
In
addition, to constitute a change in control event with respect to the Executive,
the change in control event must relate to (i) the corporation for whom the
Executive is performing services at the time of the Change in Control;
(ii) the corporation that is liable for the payment of the amounts
described herein (or all corporations liable for the payment if more than one
corporation is liable) but only if either the deferred compensation is
attributable to the performance of service by the Executive for such
corporation(s) or there is a bona fide business purpose for such corporation(s)
to be liable for such payment and, in either case, no significant purpose of
making such corporation(s) liable for such payment is the avoidance of Federal
income tax; or (iii) a corporation that is a majority shareholder of a
corporation identified in (i) or (ii) above, or any corporation in a chain of
corporations in which each corporation is a majority shareholder of another
corporation in the chain, ending in a corporation identified in (i) or (ii)
above.
4. Constructive
Termination. For purposes of this Agreement, the Executive
shall be deemed to have been constructively terminated from his/her employment
with the Company if he/she voluntarily terminates his/her employment within 24
months after a Change in Control and such termination occurs coincident with or
after any of the following events (which event occurs within 24 months after a
Change in Control), unless the Executive expressly acknowledges in writing that
no constructive termination has taken place:
A. Any
material diminution in the Executive's position, duties, titles, offices,
responsibilities and status with the Company as they existed immediately prior
to a Change in Control or the assignment to the Executive by the Company of any
duties materially reduced therewith, or in derogation thereof;
B. A
material diminution in the Executive's base salary in effect on the date of the
Change in Control;
C. Any
failure by the Company to continue in effect any benefit plan or arrangement or
any material fringe benefit in which the Executive was participating immediately
prior to a Change in Control, or to substitute and continue other plans
providing the Executive with substantially similar benefits, or any action by
the Company which would adversely affect the Executive's benefits under such
benefit plan or arrangement or deprive the Executive of any material fringe
benefit enjoyed by the Executive at the time of the Change in
Control;
D. The
Executive's relocation to a facility or a location more than thirty (30) miles
from the Executive's then present location at which he/she performed his/her
duties prior to a Change in Control; or
E. Any
material breach by the Company of any provision of this Agreement.
5. Heirs and
Successors.
A. Successors of the
Company. The Company will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company,
expressly, absolutely and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession or assignment had taken
place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession transaction shall automatically be a
material breach of this Agreement. "Company" shall mean the Company as defined
above and any successor or assign to its business and/or assets as aforesaid
which executes and delivers the agreement provided in this Section 5 or which
otherwise becomes bound by all terms and provisions of this Agreement by
operation of law.
B. Heirs of the
Executive. This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die after becoming entitled to the
payment of benefits hereunder with any amount still payable to him/her, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's beneficiary, successor, devisees,
legatees, or other designee or, if there be no such designee, to the Executive's
estate. Until a contrary designation is made to the Company in
writing, the Executive hereby designates as his/her beneficiary under this
Agreement the person whose name appears below his/her signature on this
Agreement. Notwithstanding the above, the Executive's beneficiary
designation shall be deemed automatically revoked as to a named beneficiary if
the beneficiary predeceases the Executive or if the Executive names a spouse as
beneficiary, and the marriage is subsequently dissolved. Beneficiary
designations received by the Company after the Executive's death shall not be
taken into account.
6. General
Release. If the Executive is entitled to severance benefits
pursuant to this Agreement, the Executive hereby agrees that all of his/her
rights under section 1542 of the Civil Code of the State of California are
hereby waived. Section 1542 provides as follows:
"A
general release does not extend to claims which the creditor does not know or
suspect to exist in his/her favor at the time of executing the release, which if
known by him/her must have materially affected his/her settlement with the
debtor."
Notwithstanding
the provisions of section 1542, if the Executive is entitled to severance
benefits pursuant to this Agreement, the Executive hereby irrevocably and
unconditionally releases and forever discharges the Company and all of its
officers, agents, directors, supervisors, employees, representatives and their
successors and assigns and all persons acting by, through, under or in concert
with any of them from any and all charges, complaints, grievances, claims,
actions, and liabilities of any kind (including attorneys' fees, interest,
expenses and costs actually incurred) of any nature whatsoever, known or
unknown, suspected or unsuspected (hereinafter referred to as "Claims"), which
the Executive has or may have in the future, arising out of the Executive's
employment with the Company. All such Claims are forever barred by
this Agreement and without regard to whether these Claims are based on any
alleged breach of duty arising in contract or tort, any alleged employment
discrimination or other unlawful discriminatory act, or any claim or cause of
action regardless of the forum in which it may be brought, including without
limitation, claims under the National Labor Relations Act, Title VII of the
Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act of 1964, as amended, the Americans With
Disability Act, the California Family Rights Act of 1991, the Federal Family and
Medical Leave Act of 1993, the Vietnam Era Veterans Readjustment Assistance Act
of 1974, the California Fair Employment and Housing Act, California Labor Code
section 132a, any allegation of wrongful termination and any claim arising
out of Article 1, section 8 of the Constitution of the State of
California.
7. Term. The
term of this Agreement shall be the period commencing October 16, 2008 and
ending October 16, 2013; provided that the Company and the Executive may
mutually agree in writing to extend such term.
8. Not a Contract of
Employment. The terms and conditions of this Agreement shall
not be deemed to constitute a contract of employment between the Company and the
Executive. Nothing in this Agreement shall be construed to entitle
the Executive to any benefit hereunder if his/her employment is terminated prior
to a Change in Control, and nothing in this Agreement shall be construed to
interfere with the Company's right to discharge or discipline the Executive
prior to a Change in Control.
9. Arbitration. Any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration in Sonoma County, California, in
accordance with the rules of the American Arbitration Association then in effect
by an arbitrator selected by both parties within ten (10) days after either
party has notified the other in writing that it desires a dispute between them
to be settled by arbitration. In the event the parties cannot agree
on such arbitrator within such ten (10) day period, each party shall select an
arbitrator and inform the other party in writing of such arbitrator's name and
address within five (5) days after the end of such ten (10) day period and the
two arbitrators so selected shall select a third arbitrator within fifteen (15)
days thereafter; provided, however, that in the event of a failure by either
party to select an arbitrator and notify the other party of such selection
within the time period provided above, the arbitrator selected by the other
party shall be the sole arbitrator of the dispute.
Each
party shall pay its own expenses associated with such arbitration, including the
expense of any arbitrator selected by such party, and the Company will pay the
expenses of the jointly selected arbitrator. The decision of the
arbitrator or a majority of the panel of arbitrators shall be binding upon the
parties, and judgment in accordance with that decision may be entered in any
court having jurisdiction thereover. The Executive and the Company
agree not to initiate arbitration on a controversy or claim more than six (6)
months after the event underlying the controversy or claim and to waive any
statute of limitation to the contrary. Punitive damages shall not be
awarded.
10. Notice. For
purposes of this Agreement, notices on all of the communications provided for in
the Agreement shall be in writing and shall be deemed to have been duly given
when delivered or mailed by United States registered mail, return receipt
requested, postage pre-paid as follows. If to the Company: Sonoma
Valley Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Chairman of the Board; and if to the Executive, at the address specified at the
end of this Agreement. Notice may also be given at such other address
as either party may have furnished to the other in writing and in accordance
herewith, except that notices of change of address shall be effective only upon
receipt.
11. Validity. The
invalidity or unenforceability of any provisions of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
12. 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.
13. Miscellaneous. No
provisions of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in a writing signed by the
Executive and the Company. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the time or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above-written.
SONOMA
VALLEY
BANK: EXECUTIVE:
By: ____________________________ ___________________________
(Address for Notice)
(Designated
Beneficiary)
(Address
and Social Security number of Beneficiary)