EXHIBIT 10.1
UMPQUA HOLDINGS CORPORATION
EXECUTIVE EMPLOYMENT AND
COMPENSATION AGREEMENT
For
XXX XXXXX
DATED AS OF JULY 10, 2000
Revised March 20, 2001
TABLE OF CONTENTS
1. Effective Date of Agreement............................................1
2. Term of Employment.....................................................1
3. Obligation Of The Parties To Negotiate In Good Faith...................1
4. Employment Position, Duties, and Responsibilities......................1
5. Compensation...........................................................2
6. Employee Benefits Plans................................................3
7. Termination of Executive's Employment During The Term of Employment....3
8. Termination Of Employment In Connection With A Change In Control
Of Company.............................................................4
9. Definition Of "Cause"..................................................5
10. Definition Of "Change In Control" And "Triggering Event"...............5
11. Unexercised Stock Options..............................................7
12. Right To Seek Arbitration..............................................7
13. Obligation To Mitigate Damages.........................................7
14. Confidential Information...............................................7
15. Withholding............................................................7
16. Notices................................................................8
17. General Provisions.....................................................8
18. Successors To The Company..............................................9
19. Amendment Or Modification..............................................9
20. Severability..........................................................10
21. Legal Expenses........................................................10
22. Continuation Of Benefits..............................................10
EXECUTIVE EMPLOYMENT AND
COMPENSATION AGREEMENT
Date: Effective as of March 20, 2001
Parties: Umpqua Holdings Corporation, a financial holding company, and Umpqua
Bank, a bank chartered under the laws of the State of Oregon, its
subsidiaries and affiliates (the "Company")
and
Xxx Xxxxx (the "Executive")
AGREEMENT: The Company and the Executive agree as follows:
1. EFFECTIVE DATE OF AGREEMENT. This Agreement is effective as of March
21, 2001.
2. TERM OF EMMPLOYMENT. The term of this Agreement shall commence as of
March 21, 2001 and shall continue until the close of the Company's
business on July 10, 2003 ("Term of Employment").
3. OBLIGATION OF THE PARTIES TO NEGOTIATE IN GOOD FAITH. Upon the
expiration of the Term of Employment, the parties agree to negotiate
with one another in good faith regarding another Executive Employment
and Compensation Agreement. Upon the expiration of the Term of
Employment, the Executive shall be deemed to be an "employee at will."
4. EMPLOYMENT POSITION, DUTIES, AND RESPONSIBILITIES. The Company agrees
to continue the Executive in its employ, and the Executive agrees to
remain in the employ of the Company for the Term of Employment in the
position and with the duties and responsibilities of the principal
Chief Executive Officer and President of the Company and shall report
to the Board of Directors. At all times during the Term of Employment
the Executive shall hold a title and position of responsibility
commensurate with the Executive's title and position on March 21, 2001.
The Executive shall also serve as a director of the Company, if
elected. Fees paid to the Executive for service as a director shall be
in addition to those amounts paid pursuant to this Agreement.
The office of the Executive shall be located at the principal offices
of the Company in Portland, Oregon. The Executive shall not be required
to relocate his office without his prior written consent.
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5. COMPENSATION. During the Term of Employment, the Executive shall be
paid by the Company as follows:
a. ANNUAL BASE SALARY. A minimum annual base salary of $250,000
("Base Salary"), payable at the rate of not less than $20,833
per month, for the remainder of the calendar year 2001, and
for the remainder of the Term of Employment, together with
such increases as may be awarded by the Company from time to
time in accordance with the Company's regular practices of
salary increases for executives; plus
b. ANNUAL EXECUTIVE PERFORMANCE BONUS. An annual executive
performance bonus under the Company's Executive Bonus
Compensation Plan or such equivalent successor plan as may be
adopted by the Company from time to time ("Performance
Bonus"); plus
c. RETIREMENT PLANS. The Executive shall be a full and vested
participant in all of the Company's retirement, and deferred
compensation plans, if any ("Retirement Plans") to the extent
permitted by such plans; plus
d. FRINGE BENEFITS. The Executive shall be entitled to a monthly
car allowance of $750, payment or reimbursement of: club dues
(as a non-resident member) and initiation fees for Roseburg
Golf and Country Club; other club dues or dues for civic
organizations which in the opinion of the Board of Directors
are beneficial to the Company; and Executive's reasonable
expenses incurred by the Executive in the conduct of his
duties.
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6. EMPLOYEE BENEFIT PLANS. In addition to the payments and other benefits
provided for in this Agreement, the Executive shall be entitled to
participate in the Company's Incentive Stock Option Plan, Non-Qualified
Stock Option Plan, and the Executive Profit Sharing and 401K Plan, if
any, to the extent permitted by such plans. If no such plans are in
effect as of the date of this Agreement, then the Executive shall
become a participant as soon as such plan or plans become operative.
Nothing in this Agreement shall preclude the Company from amending or
terminating any employee benefit plan or practice.
During the Term of Employment, the Executive's benefits set forth in
this Agreement shall not be less than those benefits available to the
Executive as of the date of this Agreement. The nature, level, and
extent of such benefits to which Executive is entitled may be reduced
only with the Executive's written consent.
7. TERMINATION OF EXECUTIVE'S EMPLOYMENT DURING THE TERM OF EMPLOYMENT.
a. TERMINATION OF THE EXECUTIVE'S EMPLOYMENT BY THE COMPANY FOR
"CAUSE." In the event the Executive's employment is terminated
by the Company during the Term of Employment for "cause" (as
defined in Section 9), the Executive shall be entitled to
receive payment only for those sums, benefits, and other
fringe benefits which have accrued to and are due and owing
the Executive as of the effective date of the termination of
his employment ("Effective Date"). Executive shall not be
entitled to any other sums for the remainder of the Term of
Employment.
b. TERMINATION OF THE EXECUTIVE'S EMPLOYMENT BY THE COMPANY
WITHOUT "CAUSE." In the event the Company terminates the
Executive's employment during the Term of Employment for any
reason other than "cause" (as defined in Section 9), then
Executive shall be entitled to receive and the Company shall
be obligated to pay:
1. All compensation, benefits, and other fringe benefits
accrued to the Effective Date; and
2. An amount equal to nine months' Base Salary as
defined in Section 5.a; and
3. An amount equal to the projected Performance Bonus as
defined in Section 5.b. for the year in which the
Effective Date occurred, pro-rated based upon the
number of months during such year in which the
Executive was employed. For example, if Executive's
employment was terminated after six months of a bonus
year, and the projected bonus for the Executive for
that year was $20,000, then the Executive would be
entitled to receive the sum of $10,000 as the
projected pro-rated bonus for that year; and
4. Health insurance benefits available to the Executive
on the Effective Date shall continue in full force
and effect for the maximum time allowed by law
following the Effective Date.
c. PAYMENT OF SUMS DUE EXECUTIVE. All sums due the Executive
pursuant to this Section 7 shall be paid by the Company to the
Executive in full, in cash, or the equivalent of cash, within
five days from the Effective Date.
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8. TERMINATION OF EMPLOYMENT IN CONNECTION WITH A CHANGE IN CONTROL OF
COMPANY. The provisions of this Section 8 shall govern all severance or
termination payments to the Executive in the event that the Company is
subject to a "change in control" (as defined in Section 10).
a. TERMINATION OF EMPLOYMENT OF THE EXECUTIVE BY THE COMPANY OR
THE COMPANY'S SUCCESSOR IN INTEREST IN ANTICIPATION OF, IN
CONNECTION WITH, OR AFTER A CHANGE IN CONTROL. In the event
that the Company, its successor in interest by merger, its
transferee, or the new owner of a controlling interest in the
Company's stock, terminates the Executive's employment or
causes the termination of the Executive's employment during
the Term of Employment in anticipation of, in connection with,
or after a change in control has occurred, then the Company,
its successor in interest by merger, its transferee, or the
new owner of its stock, as the case may be, shall pay the
Executive an amount equal to two times the average of the
total annual compensation (as defined in Section 5.(a) and
(b)), including the Base Salary plus the Performance Bonus,
paid to the Executive during the last two full calendar years
of employment (including employment pursuant to a prior
Agreement dated July 10, 2000 between the Company and the
Executive).
b. TERMINATION OF EMPLOYMENT BY EXECUTIVE AFTER A CHANGE IN
CONTROL AND OCCURRENCE OF A "TRIGGERING EVENT." In the event
that the Executive terminates his employment during the Term
of Employment after a change in control and a "triggering
event" (as defined in Section 10) has occurred, then the
Company, its successor in interest by merger, its transferee,
or the new owner of a controlling interest in the Company's
stock, as the case may be, shall pay the Executive the
following amount: an amount equal to two times the average of
the total annual compensation, (as defined in Section 5.(a)
and (b)), including the Base Salary plus the Performance
Bonus) paid to the Executive during the last two full calendar
years of employment (including employment pursuant to a prior
Agreement dated July 10, 2000 between the Company and the
Executive).
c. PAYMENTS TO EXECUTIVE. Executive shall be paid those amounts
specified in this Section 8 in full, in cash or the equivalent
of cash, five days after the Effective Date.
d. EXCESS PARACHUTE PAYMENT. If the lump sum payment under this
Section 8 of this Agreement, either alone or together with
other payments to which the Executive is entitled to receive
from the Company, would constitute an "excess parachute
payment" as defined in Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"), such lump sum severance
payment shall be reduced to the largest amount that will
result in no portion of the lump sum payment under this
Section 8 of this Agreement being subject to the excise tax
imposed by Section 4999 of the Code. The determination of any
reduction in the lump sum severance payment under this Section
8 of this Agreement, pursuant to the foregoing provisions,
shall be made by mutual agreement of the Company and the
Executive.
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9. DEFINITION OF "CAUSE." "Cause" is defined as personal dishonesty,
willful misconduct, breach of fiduciary involving personal profit,
failure to perform his stated duties as Chief Executive Officer and
President of the Company, or failure of the Executive to devote his
full time and undivided attention during normal business hours to the
business and affairs of the Company, (except for reasonable vacations,
illness or disability and time devoted by the Executive to serving as a
director or member of any committee or organization engaging in
charitable and community activities).
10. DEFINITION OF "CHANGE IN CONTROL" AND "TRIGGERING EVENT."
A "change in control" is defined as any transaction, act, series of
transactions or series of acts that either:
(a) would constitute a change in control for purposes of The Bank
Act (ORS Chapters 706 through 716), the Bank Holding Company
Act of 1956, as amended, The Bank Merger Act, as amended, The
Change In Bank Control Act, as amended, or The Securities
Exchange Act Of 1934, as amended, (collectively referred to
herein as the "Acts"), assuming the Company is subject to the
foregoing Acts regardless of whether the Company is actually
subject to the provisions of any such Acts;
(b) would result in any person, entity or group of persons as
those terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934 (but excluding an Employee
Stock Ownership Plan) becoming a beneficial owner, directly or
indirectly of the securities of the Company representing 20%
or more of the combined voting power of the Company's then
outstanding shares; or
(c) would result in individuals who were directors of the Company
as of the date of this Agreement ceasing to constitute at
least a majority of the Board of Directors of the Company at
any time prior to July 10, 2003.
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A "triggering event" is defined as any one of the following events
which take place after a change in control has occurred:
(a) failure to elect or reelect the Executive to the same or
higher office or removal of the Executive from the office of
President and Chief Executive Officer of the Company;
(b) a significant diminution in the nature or scope of the
authorities, powers, functions, or duties related to the
position of President and Chief Executive Officer of the
Company (including status, offices, and reporting
requirements), or a reduction in the compensation to which
Executive is entitled as set forth in Section 5 which is not
remedied within 30 days after receipt by the Company of
written notice from the Executive;
(c) the Company requiring the Executive to be based at any office
or location more than 50 miles from 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxx, or the Company requiring the Executive to
travel on Company business to a substantially greater extent
than required immediately prior to the date of this Agreement;
or
(d) breach by the Company of any provision of this Agreement not
covered within the foregoing clauses (a), (b), and (c) of this
section, which is not remedied within 30 days after receipt by
the Company of written notice from the Executive;
For the purposes of this Section 10 and this Agreement, "Company" shall
include the Company's successor in interest by merger, its transferee
of all or substantially all of the Company's assets and/or liabilities,
or the new owner of a controlling interest of the Company's stock.
(e) The liquidation, dissolution, consolidation or merger of the
Company or one or more of the Company's subsidiaries or
affiliates, or the transfer of all or a significant portion of
the assets and/or liabilities of the Company, or one of its
subsidiaries or affiliates, unless a successor or successors
(by merger, consolidation or otherwise) to which all or a
significant portion of the Company's assets and liabilities or
the assets and liabilities of any of its subsidiaries have
been transferred, shall have assumed and discharged all duties
and obligations of the Company to the Executive under this
Agreement.
An election by the Executive to terminate his employment after the
occurrence of a change in control and the occurrence of a triggering
event as defined herein, shall entitle the Executive to payment of
those sums specified in Section 8.b.
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11. UNEXERCISED STOCK OPTIONS. In the event that the Executive shall hold
as of the Effective Date any outstanding and unexercised (whether or
not exercisable at the time) stock options or options previously
granted by the Company, the disposition of such options shall be made
in accordance with the Company's Incentive Stock Option Plan (if any).
12. RIGHT TO SEEK ARBITRATION. Either party shall have the right, in
addition to all other rights and remedies provided by law at their
election, either to seek arbitration in Oregon, under the rules of the
American Arbitration Association or to institute a judicial proceeding,
in either case within 90 days after having received notice of
termination of his employment.
13. OBLIGATION TO MITIGATE DAMAGES. In the event of the Executive's
termination of employment, the Executive shall not be required to
mitigate damages by seeking other employment.
14. CONFIDENTIAL INFORMATION. Executive agrees not to disclose at any time
any confidential information obtained by him while in the employ of the
Company. The executive also agrees that upon leaving the Company, he
will not take with him any document of the Company's which is of a
confidential or proprietary nature.
15. WITHHOLDING. All payments required to be made by the Company to the
Executive pursuant to this Agreement shall be subject to applicable
federal and state withholding requirements.
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16. NOTICES. All notices, requests, demands, and other communications
provided for by this Agreement will be in writing and shall be
sufficiently given if and when mailed in the continental United States
by registered or certified mail, or personally delivered to the party
entitled thereto at the address stated below or to such changed
addresses as the addressee may have given by similar notice:
To the Company: Umpqua Holdings Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
To the Executive: Xxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Any such notice delivered in person shall be deemed to have been
received on the date of delivery.
17. GENERAL PROVISIONS.
(a) There shall be no right of set-off or counter-claim against
any payments to the Executive, his surviving spouse,
beneficiaries, or estate. All sums to which the Executive is
entitled pursuant to this Agreement shall, upon his death, be
paid to his surviving spouse, heirs, or to his estate, if
there is no surviving spouse.
(b) The Company and the Executive recognize that each party will
have no adequate remedy at law for breach of this Agreement;
and that in the event of any such breach, the Company and the
Executive agree and consent that the other shall be entitled
to apply for and obtain a Decree of Specific Performance.
(c) No right or interest to or in any payment shall be assignable
by the Executive, provided, however, that this provision shall
not preclude the Executive from designating one or more
beneficiaries to receive any amount or amounts that may be
payable to him after his death and shall not preclude the
legal representative of his estate from assigning any right
hereunder to the person or persons entitled thereto under his
Will or in the case of intestacy to the person or persons
entitled thereto under the laws of intestate succession of the
State of Oregon.
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18. SUCCESSORS TO THE COMPANY. This Agreement shall be binding upon and
inure to the benefit of the Company and any successor of the Company,
including without limitation any corporation or corporations acquiring
directly or indirectly all or substantially all of the assets and/or
liabilities, or a controlling interest in the stock of the Company,
whether by merger, consolidation, sale or otherwise (and such successor
shall thereafter be deemed "the Company" for the purposes of this
Agreement), but shall not otherwise be assignable by the Company.
19. AMENDMENT OR MODIFICATION. This Agreement may not be amended or
modified without the written consent of the parties to this Agreement.
A waiver by either party to this Agreement of any breach by the other
party shall not be deemed to be a waiver of any subsequent or
continuing breach.
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20. SEVERABILITY. In the event that any portion of this Agreement is
declared unenforceable, the remaining portions of this Agreement shall
be unaffected and shall remain in full force and effect.
21. LEGAL EXPENSES. If the Company fails to comply with any of its
obligations under this Agreement, or in the event that the Company or
any other person takes any action or declares this Agreement
unenforceable or institutes any litigation or other legal action
designed to deny, diminish or to recover from the Executive the
benefits intended to be provided to the Executive hereunder, and
provided further that the Executive has complied with all of his
obligations under this Agreement, the Company hereby authorizes the
Executive to retain counsel of his choice at the sole expense of the
Company to represent the Executive in connection with the initiation or
defense of any litigation or other legal action whether by or against
the Company, or any director, officer, shareholder, or other person
affiliated with the Company in any jurisdiction. The reasonable fees
and expenses of counsel selected by the Executive as provided herein
shall be paid or reimbursed to the Executive by the Company on a
regular periodic basis upon presentation by Executive of a statement or
statements prepared by such counsel in accordance with such counsel's
customary practices up to a maximum aggregate amount of $60,000 for
legal fees and expenses --- which shall be paid regardless of whether
the Executive prevails in any legal action.
22. CONTINUATION OF BENEFITS. During any period of time that the validity
or enforceability of this Agreement is being challenged by any party,
the Company shall continue to cover the Executive and his beneficiaries
under the Company's cafeteria plan, hospital plan, health care plan,
dental plan, life or other insurance or death benefit plan, or other
present or future similar group or employee benefit plan or program for
which key executives of the Company are eligible to the same extent as
if the Executive had continued to be an employee of the Company.
DATED as of March 20, 2001
--------------------------
UMPQUA HOLDINGS CORPORATION
By: /s/ Xxxxx X. Xxxx
------------------------------------
Title: Chairman
------------------------------------
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
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