EXHIBIT 10.4
CHANGE OF CONTROL /SEVERANCE AGREEMENT
THIS CHANGE OF CONTROL/ SEVERANCE AGREEMENT (the "Agreement") is made
and entered into as of this ___ day of ______, 2004_(the "Commencement Date"),
by and between CASCADE BANK, a commercial bank chartered under the laws of the
State of Washington (the "Bank"), and Xxxxxx X. Xxxxx (the "Executive").
WHEREAS, the Executive is currently serving as President, Issaquah
Bank Division and has agreed to continue to serve in the employ of the Bank;
and
WHEREAS, the Board of Directors of the Bank recognizes the substantial
contribution the Executive has made to the Bank and wishes to provide Executive
with certain benefits for the period provided in this Agreement in the event of
a change of control (as defined herein) of the Bank or of its holding company,
Cascade Financial Corporation (the "Holding Company");
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein, the parties hereto
agree as follows:
1. Certain Definitions.
(a) The term "Change of Control" means: (i) an event of a
nature that would be required to be reported in response to Item 1(a) of the
current report on Form 8-K, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); (ii) any "person," as such term is used in Sections 13(d) and
14(d) of the Exchange Act, other than the Holding Company, any Consolidated
Subsidiaries (as hereinafter defined), is or becomes the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) directly or indirectly of
securities of the Bank or the Holding Company representing 25% or more of the
combined voting power of the Bank's or Holding Company's outstanding
securities; (iii) individuals who are members of the Board of Directors of the
Holding Company (the "Board") on the Commencement Date (the "Incumbent Board")
cease for any reason to constitute at least a majority thereof, provided that
any person becoming a director subsequent to the Commencement Date 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 Holding
Company's stockholders was approved by the nominating committee serving under
an Incumbent Board or who was appointed as a result of a change at the
direction of the Federal Reserve Board or the Federal Deposit Insurance
Corporation ("FDIC"), shall be considered a member of the Incumbent Board; (iv)
the stockholders of the Holding Company approve a merger, consolidation or
acquisition of the Holding Company or the Bank, with or by any other
corporation or entity, other than (1) a merger, consolidation or acquisition
which would result in the voting securities of the Holding Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 50% of the combined voting power of the voting securities of
the Holding Company or such surviving entity outstanding immediately after such
merger or consolidation or (2) a merger or consolidation effected to implement
a recapitalization of the Holding Company or the Bank (or similar transaction)
in which no person (as hereinabove defined) acquires more than 25% of the
combined voting power of the Holding Company's then outstanding securities; or
(v) the stockholders of the Holding Company approve a plan of complete
liquidation of the Holding Company or the Bank or an agreement for the sale or
disposition by the Holding Company of all or substantially all of the Holding
Company's or the Bank's assets (or any transaction having a similar effect);
provided that the term "Change of Control" shall not include an acquisition of
securities by an employee benefit plan of the Bank or the Holding
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Company or a change in the composition of the Board at the direction of the
Federal Reserve Board or the FDIC. Upon a Change of Control, the provisions
hereof shall become immediately operative.
(b) The term "Consolidated Subsidiaries" means any subsidiary
or subsidiaries of the Holding Company 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 Bank.
(c) The term "Good Reason" means the occurrence, without the
Executive's express written consent, of a material diminution of or
interference with the Executive's duties, responsibilities or benefits,
including (without limitation) any of the following circumstances:
(i) a requirement that the Executive be based at any
location not within 40 miles of the Executive's then
existing job location, providing that such new
location is not closer to Executive's home;
(ii) a material demotion, or loss of title or loss of
significant authority of the Executive;
(iii) a reduction in the Executive's salary or a material
adverse change in the Executive's perquisites,
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 Bank;
(iv) a successor bank or company fails or refuses to assume
the Bank's obligations under this Agreement, as
required in Section 4(a) hereof; or
(v) any purported termination of the Executive's
employment, except for Termination for Cause that is
not effected pursuant to a Notice of Termination
satisfying the requirements of Section 6 hereof (and,
if applicable, the requirements of Section 1(d)
hereof), which termination shall not be effective for
purposes of this Agreement.
(d) The term "Termination for Cause" means termination of the
employment of the Executive because of the Executive's personal dishonesty,
incompetence, willful misconduct, breach of a fiduciary duty involving personal
profit, intentional failure to perform stated duties, insubordination, willful
violation of any law, rule, or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order, or material breach of any
provision of this Agreement or any other agreement between Executive and the
Bank or the Holding Company. The Executive shall not be entitled to any payment
or benefit hereunder in the event a termination occurs by reason of a voluntary
retirement, voluntary termination other than for reasons specified in Section
1(c) hereof, disability, or Termination for Cause.
2. Term of the Agreement.
(a) The term of this Agreement shall be a period of
thirty-six calendar months beginning on the Commencement Date. Commencing on
the first anniversary date of this Agreement and continuing on each anniversary
thereafter, this Agreement will be automatically extended for an additional
year, such that the remaining term of this Agreement would be for thirty-six
calendar months, unless either party elects not to extend this Agreement
further by giving written notice thereof to the other party, subject to earlier
termination, as provided herein.
(b) Nothing in this Agreement shall be deemed to prohibit the
Bank at any time from terminating the Executive's employment during the term of
this Agreement with or without notice for
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any reason; provided, however, that the relative rights and obligations of the
Bank and the Executive in the event of any such termination shall be determined
under this Agreement.
3. Severance Benefits.
(a) If after a Change of Control, the Bank shall terminate
the Executive's employment other than Termination for Cause, or the Executive
shall terminate employment with the Bank for Good Reason within twenty-four
(24) months following a Change of Control, the Bank shall: (i) pay the
Executive (or in the event of Executive's subsequent death, Executive's
beneficiary or estate, as the case may be), as severance pay, a sum equal to
two (2) times Executive's annual compensation. For purposes of this Agreement,
"annual compensation" shall mean all wages, salary, bonus, and other
compensation, if any, paid by the Bank as consideration for the Executive's
services during the twelve (12) month period ending on the last day of the
month preceding the effective date of a Change of Control which is or would be
includable in the gross income of the Executive receiving the same for federal
income tax purposes. Such amount shall be paid to Executive in a lump sum no
later than sixty (60) days after the date of Executive's termination; and (ii)
cause to be continued for twenty-four (24) months after the effective date of a
Change of Control, life, medical, dental, and disability coverage substantially
identical to the coverage maintained by the Bank or the Holding Company for the
Executive prior to the effective date of a Change of Control, except to the
extent such coverage may be changed in its application to all Bank or Holding
Company employees on a nondiscriminatory basis.
(b) Notwithstanding the provisions of Section 3(a) above, if
a payment to the Executive who is a "disqualified individual" shall be in an
amount which includes an "excess parachute payment," the payment hereunder to
the Executive shall be reduced to the maximum amount which does not include an
"excess parachute payment." The terms "disqualified individual" and "excess
parachute payment" shall have the meaning defined in Section 280G of the Code.
(c) The Executive shall not be required to mitigate the
amount of any payment or benefit provided for in Section 3(a) of this Agreement
by seeking other employment or otherwise, nor shall the amount of any payment
or benefit provided for in Section 3(a) of this Agreement be reduced by any
compensation earned or benefit received by the Executive as the result of
employment by another employer. This Agreement shall not be construed as a
contract of employment or as providing the Executive any right to be retained
in the employ of the Holding Company or the Bank or any affiliate thereof.
4. Assignment.
(a) This Agreement is personal to each of the parties hereto,
and neither party may assign or delegate any of its rights or obligations
hereunder without first obtaining the written consent of the other party;
provided, however, that the Bank shall require any successor or assignee of
(whether direct or indirect, by purchase, merger, consolidation, operation of
law or otherwise) to all or substantially all of the business and/or assets of
the Bank, to expressly assume and agree to perform the Bank's obligations under
this Agreement.
(b) This Agreement shall be binding upon and inure to the
benefit of the Executive, Bank, and Holding Company, and their respective
successors and assigns.
5 Required Regulatory Provisions. Any payments made to Executive
pursuant to this Agreement, or otherwise, are subject to and conditioned upon
compliance with 12 U.S.C. Section 1828(k) and any rules and regulations
promulgated thereunder, including 12 C.F.R. Part 359.
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6. Delivery of Notices.
For the purposes of this Agreement, all notices and other
communications to any party hereto shall be in writing and shall be deemed to
have been duly given when delivered or sent by certified mail, return receipt
requested, postage prepaid, to the party's address identified herein. Any
purported termination by the Bank or the Executive in connection with a Change
of Control shall be communicated by a Notice of Termination to the other party.
For purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which indicates the specific termination provision in this Agreement and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for the termination of Executive's employment under the
provision so indicated.
7. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein
otherwise provided.
8. 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.
9. 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.
10. Governing Law. This Agreement shall be governed by the laws of the
State of Washington.
11. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by binding
arbitration, conducted before a panel of three arbitrators in a location
selected by the Executive within 50 miles of the location of the Bank, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrators' award in any court having
jurisdiction.
12. Reimbursement of Fees. All reasonable legal fees and expenses paid
or incurred by Executive pursuant to any dispute or question of interpretation
relating to this Agreement shall be paid or reimbursed by the Bank if Executive
is successful on the merits pursuant to an arbitration award or legal judgment.
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: CASCADE BANK
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By:
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Its:
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Address:
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EXECUTIVE
Address:
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