EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the 1st day of May, 2001 by and between North Bay Bancorp, a California
corporation (the "Company"), and Xxxx Brain (the "Employee").
BACKGROUND
WHEREAS, the Employee is currently employed by the Company and
possesses valuable knowledge and skills that have contributed to the operation
of the Company and its subsidiary banks; and
WHEREAS, the Company desires to continue Employee's employment and the
Employee is willing to continue to be employed by the Company, upon the terms
and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, agreements and mutual
covenants set forth herein, the parties hereto hereby agree as follows:
1. Employment
1.1 General. The Company hereby employs the Employee as
Executive Vice President and Chief Operating Officer on the terms and subject to
the conditions contained in this Agreement, and the Employee hereby accepts such
employment on the terms and subject to the conditions contained in this
Agreement.
1.2 Duties of Employee. During the Term of this Agreement, the
Employee shall diligently perform all duties and responsibilities reasonably
accorded to and expected of the Executive Vice President and Chief Operating
Officer of the Company and as may be assigned to him by the Board of Directors
of the Company (the "Board of Directors") or the President and Chief Executive
Officer of the Company, and shall exercise such power and authority as may from
time to time be delegated to him thereby. The Employee shall devote his full
business time and attention to the business and affairs of the Company as
necessary to perform his duties and responsibilities hereunder, render such
services to the best of his ability and use his best efforts to promote the
interests of the Company. The Employee shall faithfully adhere to, execute and
fulfill all policies established by the Company.
1.3 Place of Performance. Except for required travel for the
Company's business, the Employee shall perform his duties and responsibilities
from the offices of the Company and its subsidiaries.
2. Term. Subject to the provisions of Section 4 of this
Agreement, the initial term of Employee's employment hereunder shall commence on
the date of this Agreement (the "Effective Date") and shall continue thereafter
until the third anniversary
of the Effective Date (the "Initial Term"). Unless the Employee shall have
notified the Company, or the Company shall have notified the Employee, not less
than sixty days prior to the expiration of the Initial Term of such party's
election not to continue the Term of this Agreement, upon expiration of the
Initial Term, the Employee's employment hereunder shall continue until the
fourth anniversary of the Effective Date and thereafter shall continue on a
year-to-year basis unless either party notifies the other, not less than sixty
days prior to expiration of the then current Renewal Term, of such party's
election not to continue the Term of this Agreement (each such additional
one-year period, a "Renewal Term"; the Initial Term and any Renewal Term are
collectively referred to hereinafter as the "Term"). The election by the Company
not to continue the Term of Employee's employment for a Renewal Term shall not
be deemed a termination without Cause pursuant to Section 4.1(b) hereof except
as expressly provided in Section 4.1(d) hereof.
3. Compensation.
3.1 Salary. During the Term of the Employee's employment
hereunder, the Employee shall receive an annual salary of one hundred fifteen
thousand dollars ($115,000) payable at such times and in such manner as the
Company's normal payroll schedule may from time to time provide. Employee's
annual salary shall be subject to annual adjustment as may be determined by the
Board of Directors in its sole and absolute discretion.
3.2 Incentive Compensation. The Employee shall be eligible to
receive as additional compensation each year during his employment hereunder, as
determined by the Board of Directors or an applicable committee thereof, in
accordance with the terms of an Incentive Compensation Plan adopted annually by
the Board of Directors. Such additional compensation (if any) to be paid at a
time or times and in a manner consistent with the Company's normal practices for
the payment of bonuses, or as the Board of Directors or applicable committee may
otherwise determine.
3.3 Benefits. During his employment hereunder, the Employee
shall be entitled to participate in all plans adopted for the general benefit of
the Company's management employees, including medical plans and 401(k) plan, to
the extent that the Employee is and remains eligible to participate therein and
subject to the eligibility provisions of such plans in effect from time to time.
In the event Employee's employment hereunder is terminated and the Employee is
entitled to compensation pursuant to Section 4.4(d), the Employee shall be
entitled to continue to participate in the Company's medical plan until the
earlier of (a) expiration of the applicable payment period set forth in Section
4.4(d)(i) or (b) the date Employee obtains new employment.
3.4 Vacation. During each calendar year of his employment
hereunder, the Employee shall be entitled to twenty (20) days of paid vacation,
prorated for any period of employment of less than an entire year, provided that
vacation time will continue to accrue only so long as Employee's total accrued
vacation does not exceed twenty five (25) days. Should Employee's accrued
vacation time reach twenty five (25)
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days, Employee will cease to accrue further vacation until Employee's accrued
vacation time falls below that level. Notwithstanding anything contained in the
foregoing, Employee shall take not less than five (5) consecutive days of
vacation during each calendar year during the Term of this Agreement. Employee
may be absent from his employment for vacation only at such time as the
President and Chief Executive Officer of the Company shall determine from time
to time.
3.5 Withholding. Notwithstanding any provision in this
Agreement to the contrary, all payments required to be made by the Company to
the Employee hereunder or otherwise arising out of, related or incidental to or
in connection with the Employee's employment hereunder shall be subject to
withholding of such amounts relating to taxes as the Company may reasonably
determine it should withhold pursuant to any applicable law or regulation.
3.6 Reimbursement of Expenses. The Company agrees to reimburse
the Employee for all reasonable business travel and other out-of-pocket expenses
incurred by the Employee in the discharge of his duties hereunder, subject to
the Company's reimbursement policies in effect from time to time. All
reimbursable expenses shall be appropriately documented in reasonable detail by
the Employee upon submission of any request for reimbursement, and in a format
and manner consistent with the Company's expense reporting policy, as well as
applicable federal and state record keeping requirements.
3.7. Automobile. The Company will pay to Employee an
automobile allowance in the amount of five hundred dollars ($500) per month. The
Employee shall be responsible for insurance and maintenance costs associated
with such automobile's operation. The Employee shall not be entitled to
reimbursement for mileage. Employee shall procure and maintain an automobile
liability insurance policy on the automobile, with coverage including Employee
for at least a minimum of $300,000 for bodily injury or death to any one person
in any one accident, and $100,000 for property damage in any one accident. The
Employer shall be named as an additional insured and Employee shall provide
Employer copies of policies evidencing insurance and Employer's inclusion as an
additional insured.
4. Termination
4.1 By Company.
(a) With Cause. Notwithstanding any provision in this
Agreement to the contrary, the Employee's employment hereunder may be terminated
by the Company at any time for "Cause," and such termination shall be effective
immediately upon written notice to the Employee. For purposes of this Agreement,
"Cause" for the termination of the Employee's employment hereunder shall be
deemed to exist if, in the reasonable judgment of the Board of Directors: (i)
the Employee commits fraud, theft or embezzlement against the Company, or any
subsidiary or affiliate thereof; (ii) the Employee commits a felony or a crime
involving moral turpitude; (iii) the Employee
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compromises trade secrets or other proprietary information of the Company, or
any subsidiary or affiliate thereof; (iv) the Employee breaches any
non-solicitation agreement with the Company, or any subsidiary or affiliate
thereof; (v) the Employee breaches any of the terms of this Agreement (other
than those referenced in clauses (iii) and (iv) of this Section 4.1(a)) and
fails to cure such breach within ten (10) days after the receipt of written
notice of such breach from the Company; (vi) the Employee engages in any grossly
negligent act or willful misconduct that causes, or could be reasonably expected
to cause, harm to the business, operations or reputation of the Company, or any
subsidiary or affiliate thereof; or (vii) the Company, or any subsidiary or
affiliate thereof, is ordered to terminate this Agreement by any governmental
regulatory agency with supervisory authority over the Company, or any subsidiary
or affiliate thereof.
(b) Without Cause. The Company may at any time, in
its sole and absolute discretion, terminate the employment of the Employee
hereunder without Cause, or otherwise without any cause, reason or
justification, provided that the Company provides to the Employee written notice
(the "Termination Notice") of such termination. In the event of any such
termination by the Company, the Employee's employment with the Company shall
cease and terminate on the date specified in the Termination Notice.
(c) For Disability of the Employee. If, as a result
of incapacity due to physical or mental illness or injury, the Employee is
determined to be disabled under any disability policy maintained by the Company
or, in the event no such policy is maintained by the Company, the Employee shall
have been unable to perform the essential functions of his position, with or
without reasonable accommodation, on a full-time basis for a period of sixty
(60) consecutive days, or for a total of ninety (90) days in any twelve-month
period (a "Disability"), then thirty (30) days after written notice to the
Employee (which notice may be given before or after the end of the
aforementioned periods, but which shall not be effective earlier than the last
day of the applicable period), the Company may terminate the Employee's
employment hereunder if the Employee is unable to resume his full-time duties at
the conclusion of such notice period.
4.2 Death of the Employee. This Agreement shall immediately
cease and terminate upon the death of Employee.
4.3 Termination by Employee. The Employee may terminate his
employment under this Agreement upon not less than thirty (30) days prior
written notice to the Company. Upon learning that the Employee is terminating
his employment under this Agreement, the Company may, in its sole discretion but
subject to its other obligations under this Agreement, relieve Employee of his
duties under this Employment Agreement, and assign Employee other reasonable
duties and responsibilities to be performed until the termination becomes
effective.
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4.4 Compensation Upon Early Termination.
(a) As a Result of Death, Cause or Resignation. If
the Employee's employment under this Agreement is terminated prior to the
scheduled expiration of the Term by reason of his death, termination by the
Company for Cause or resignation by the Employee, the Employee shall be entitled
to be paid solely (i) the Employee's salary then in effect through the effective
date of termination, (ii) any accrued vacation due pursuant to Section 3.4,
(iii) any amounts due pursuant to Section 3.6, (iv) those benefits, if any, that
have vested by operation of state or federal law or under any written term of a
plan ("Vested Benefits"), and (v) health care coverage continuation rights under
the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA Rights"), and
the Company shall have no further liability or other obligation of any kind
whatsoever to the Employee. In the case of termination as a result of the death
of Employee, any amounts due pursuant to this Section 4.4(a) shall be paid to
the Employee's estate, heirs (at law), devisees, legatees or other proper and
legally entitled descendants, or the personal representative, executor,
administrator or other proper legal representative on behalf of such
descendants.
(b) By the Company other than for Cause. Except as
otherwise expressly provided in Section 4.4(d), if, prior to the scheduled
expiration of the Term, the Company terminates the Employee's employment without
Cause, the Employee shall be entitled to receive and be paid solely (i) the
Employee's salary then in effect until the expiration of six months following
the effective date of the termination of Employee's employment payable over such
period at the Company's regular and customary intervals for the payment of
salaries as in effect from time to time ("Severance Pay"), (ii) any accrued
vacation due pursuant to Section 3.4, (iii) any amounts due pursuant to Section
3.6, (iv) any Vested Benefits, and (v) any COBRA Rights, and the Company shall
have no further liability or other obligation of any kind whatsoever to the
Employee. The payment of Severance Pay shall constitute liquidated damages in
lieu of any and all claims by the Employee against the Company, shall be in full
and complete satisfaction of any and all rights which the Employee may enjoy
hereunder, and shall constitute consideration for a full and unconditional
release of any and all liability of the Company or any of its shareholders,
benefit plans, affiliate companies, subsidiaries, and the directors, officers,
employees, trustees and agents of such entities and their successors or assigns,
arising out of this Agreement or out of the employment relationship between the
Employee and the Company (in the form of Exhibit A, hereafter the "Release").
Payment of the Severance Pay is expressly conditioned upon receipt by the
Company of the Release executed by the Employee.
(c) Disability. For the sixty (60) day period
following onset of the Employee's Disability, Employee shall be entitled to
receive and be paid solely (i) the Employee's salary then in effect until the
expiration of said sixty (60) day period payable over such period of time at the
Company's regular and customary intervals for the payment of salaries as in
effect from time to time, (ii) any accrued vacation due pursuant to Section 3.4,
(iii) any amounts due pursuant to Section 3.6, (iv) any Vested Benefits, and (v)
any COBRA rights. Following expiration of the sixty (60) day period, the
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Employee shall be entitled to receive and be paid solely a salary at a rate
commensurate with the benefit Employee is eligible to receive under any
disability policy maintained by the Company for a period of one hundred twenty
(120) days or until Employee's benefits under any disability policy maintained
by the Company for the Employee commences, whichever period is shorter, payable
over such period of time at the Company's regular and customary intervals for
the payment of salaries as in effect from time to time, and the Company shall
have no further liability or other obligation of any kind whatsoever to the
Employee.
(d) Change in Control. Notwithstanding anything
contained in the foregoing, if within one year of the effective date of a Change
in Control (as defined below) (i) Employee's employment under this Agreement is
terminated by the Company, its assignee or successor, without Cause (including,
for purposes of this Section 4.1(d), an election by the Company not to continue
to Term of Employee's employment) or (ii) Employee terminates his employment
under this Agreement on account of (y) Employee's position, responsibilities or
working conditions being substantially diminished or (z) a material reduction in
the Employee's compensation or benefits, the Employee shall be entitled to
receive and be paid compensation as follows in lieu of compensation payable
pursuant to Section 4.4(b):
(i) Less Than Five Years of Service. If as
of the effective date of the Change in Control the Employee has completed less
than five years of service to the Company (including service to any predecessor
or subsidiary of the Company), the Employee shall be entitled to receive and be
paid an amount equal to (a) the Employee's annual salary then in effect plus (b)
the average of the incentive compensation paid to the Employee for the two most
recently completed fiscal years of the Company. Said amount shall be payable to
the Employee for a period of twelve months following the effective date of the
termination of the Employee's employment (the "Date of Termination"). Said
amount shall be payable for such period at the Company's regular and customary
intervals for the payment of salaries as in effect from time to time. In
addition, the Employee shall be entitled to receive and be paid (v) any accrued
vacation due pursuant to Section 3.4, (w) any amounts due pursuant to Section
3.6, (x) any Vested Benefits, (y) any COBRA rights, and (z) prorated incentive
compensation for the current fiscal year of the Company; or
(ii) More than Five Years of Service. If as
of the effective date of the Change in Control the Employee has completed five
or more years of service to the Company (including service to any predecessor or
subsidiary of the Company), the Employee shall be entitled to receive and be
paid an amount equal to two times (a) the Employee's annual salary then in
effect plus (b) the average of the incentive compensation paid to the Employee
for the two most recently completed fiscal years of the Company. Said amount
shall be payable to the Employee for a period of twenty-four months following
the Date of Termination. Said amount shall be payable for such period at the
Company's regular and customary intervals for the payment of salaries as in
effect from time to time. In addition, the Employee shall be entitled to receive
and be paid (v) any accrued vacation due pursuant to Section 3.4, (w) any
amounts due pursuant to
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Section 3.6, (x) any Vested Benefits, (y) any COBRA rights, and (z) prorated
incentive compensation for the current fiscal year of the Company.
(e) Change in Control Defined. "Change in Control"
means in any transaction or related series of transactions: (a) the acquisition
(other than solely from the Company), by any individual, entity or group (within
the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), other
than the Company or any subsidiary, affiliate (within the meaning of Rule 144
under the Securities Act of 1933, as amended) or employee benefit plan of the
Company, of beneficial ownership (within the meaning of Rule 13(d)(3)
promulgated under the Exchange Act) of more than 30% of the combined voting
power of the then outstanding securities of the Company entitled to vote
generally in the election of directors (the "Voting Securities"); (b) a
reorganization, merger, consolidation, share exchange or recapitalization of the
Company (a "Business Combination"), other than a Business Combination in which
more than 50% of the combined voting power of the outstanding voting securities
of the surviving or resulting entity immediately following the Business
Combination is held by the persons who, immediately prior to the Business
Combination, were the holders of the Voting Securities; or (c) a complete
liquidation or dissolution of the Company, or a sale of all or substantially all
of the Company's assets.
(f) Tax Gross-Up Payment. In the event the
compensation payable to the Employee pursuant to and by reason of Section 4.4(d)
hereof and otherwise payable by the Company to the Employee by reason of a
Change in Control (including without limitation, accelerated vesting of stock
options and other compensation payable outside of this Agreement (together the
"Total Benefits"), but determined without regard to any additional payments
required under this Section 4.4(f)) constitute excess parachute payments within
the meaning of Section 280G of the Internal Revenue Code (the "Code") and the
Employee will be subject to the excise tax imposed by Section 4999 of the Code,
then the aggregate compensation payable to the Employee pursuant to and by
reason of Section 4.4(d) shall be increased by an additional amount (the
"Gross-Up Payment") such that the net amount retained by the Employee, after
deduction of any excise tax on the Total Benefits and any federal, state and
local income tax, excise taxes and FICA Medicare withholding taxes upon the
Gross-Up Payment shall be equal to the Total Benefits. The Gross-Up Payment
shall be calculated, and all assumptions to be utilized in performing such
calculation, shall be made by the Company's independent auditors (the
"Accounting Firm") which shall provide detailed supporting calculations both to
the Company and the Employee within fifteen (15) business days after the Date of
Termination (defined in Section 4(d)(i)). The calculation of the Gross-Up
Payment by the Accounting Firm shall be binding upon the Company and Employee
unless with ten (10) business days of receiving the calculations from the
Accounting Firm either party objects to the calculation by serving upon the
other party a written notice of objection (which shall contain specific details
supporting the objection). In the event of a timely objection to the
calculation, the Company and Employee shall meet and in good faith attempt to
resolve the objection. If the parties fail to resolve the objection with ten
(10) business days of receipt of the objection, either party may initiate
arbitration, and the dispute shall be resolved by arbitration, pursuant to
Section 11 hereof. All reasonable fees and expenses of the Accounting Firm shall
be borne solely by the
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Company. The Gross-Up Payment shall be added to the aggregate compensation
payable to the Employee pursuant to and by reason of Section 4.4(d) and be
payable over the applicable payment period set forth in Section 4.4(d)(i) or
(ii), subject to withholding pursuant to Section 3.5 hereof.
4.5 Expiration of the Term. If not sooner terminated,
Employee's employment hereunder shall terminate on the expiration of the Initial
Term or the Renewal Term, as applicable in accordance with Section 2 hereof. Not
less than 45 days prior to the scheduled expiration of Employee's employment
hereunder, the parties agree to commence discussions with respect to the
possible extension of the Term of this Agreement, possible execution of a new
employment agreement or other possible continuation of the Employee's employment
(it being understood and agreed that no such discussion shall imply any current
or future obligation or commitment to enter into any such agreement or extension
or any other expressed or implied arrangement for the continued employment of
the Employee following the expiration of the Initial Term or any other
termination of the Employee's employment hereunder).
5. Agreement Not to Solicit Customers. The Employee agrees that, during
the Term of his employment with the Company or any entity owned by or affiliated
with the Company (whether pursuant to this Agreement or otherwise), and for two
(2) years following the termination thereof whether or not for any reason
whatsoever, he will not, either directly or indirectly, call on, solicit, or
take away as a client, customer or prospective client or customer, or attempt to
call on, solicit, or take away as a client, customer or prospective client or
customer, any person or entity that was a client, customer or prospective client
or customer of the Company, or any subsidiary or affiliate thereof. For purposes
of this agreement "prospective client or customer" shall include any person or
entity with whom the Company has had contact for the purpose of soliciting
business within the six months prior to the termination of employment or whom
the Company intended to contact for the purpose of soliciting business within
six months after termination of employment, of which contact or intended contact
the Employee had knowledge while employed by the Company.
6. Agreement Not to Solicit or Hire Employees. The Employee agrees that
during the Term of his employment with the Company or any entity owned by or
affiliated with the Company (whether pursuant to this Agreement or otherwise),
and for two (2) years following the termination thereof whether or not for any
reason whatsoever, he will not, either directly or indirectly, on his own behalf
or in the service or on behalf of others, solicit, divert or hire, attempt to
solicit, divert or hire or induce or attempt to induce to discontinue employment
with the Company, or any subsidiary or affiliate thereof, any person employed by
the Company, or any subsidiary or affiliate thereof, whether or not such
employee is a full time employee or a temporary employee of the Company, or any
subsidiary or affiliate thereof and whether or not such employment is for a
determined period or is at will.
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7. Ownership and Non-Disclosure and Non-Use of Confidentia
Information.
7.1 Confidential Information. As used in this Agreement,
"Confidential Information" shall mean all customer deposit, loan, sales and
marketing information, customer account records, proprietary receipts and/or
processing techniques, information regarding vendors and products, training and
operations memoranda and similar information, personnel records, pricing
information, financial information and trade secrets concerning or relating to
the business, accounts, customers, employees and affairs of the Company, or any
subsidiary or affiliate thereof, obtained by or furnished, disclosed or
disseminated to the Employee, or obtained, assembled or compiled by the Employee
or under his supervision during the course of his employment by the Company, and
all physical embodiments of the foregoing, all of which are hereby agreed to be
the property of and confidential to the Company, but Confidential Information
shall not include any of the foregoing to the extent that the Employee can show
that the same is or becomes publicly known through no action, omission, fault or
breach of this Agreement by the Employee.
7.2. Ownership. The Employee acknowledges and agrees that all
Confidential Information, and all physical embodiments thereof, are confidential
to and shall be and remain the sole and exclusive property of the Company. The
Employee agrees that upon request by the Company, and in any event upon
termination of the Employee's employment with the Company whether or not for any
reason whatsoever, the Employee shall deliver to the Company all property
belonging to the Company, or any of its subsidiaries or affiliates, including,
without limitation, all Confidential Information (and all embodiments thereof),
then in his custody, control or possession.
7.3 Non-Disclosure and Non-Use. The Employee agrees that he
will not, either during the Term of his employment hereunder or at any time
thereafter, use, disclose or make available any Confidential Information to any
person or entity, nor shall he use, disclose, make available or cause to be
used, disclosed or made available, or permit or allow, either on his own behalf
or on behalf of others, any use or disclosure of such Confidential Information
other than in the proper performance of the Employee's duties hereunder.
8. Reasonableness of Restrictions. In the event that any provision
relating to time period set forth in Xxxxxxx 0, 0, xx 0 xxxxx xx held by a court
of competent jurisdiction to exceed the maximum time period that the court deems
reasonable and enforceable, the time period which the court finds to be
reasonable and enforceable shall be deemed to become, and thereafter shall be,
the maximum time period of such restriction as to such jurisdiction.
9. Enforceability. Any provision of this Agreement which is held by a
court of competent jurisdiction to be invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, but shall be enforced to the
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maximum extent permitted by law, and any such holding of invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10. Injunction. The Employee represents that his experience and
capabilities are such that the provisions of Sections 5, 6, and 7 will not
prevent him from earning his livelihood, and acknowledges that a breach by the
Employee of any of the covenants contained therein will cause irreparable harm
and damage to the Company, the monetary amount of which may be virtually
impossible to ascertain. As a result, the Employee recognizes and hereby
acknowledges that the Company shall be entitled to an injunction from any court
of competent jurisdiction enjoining and restraining any violation of any or all
of the covenants contained in Section 5, 6, and/or 7 of this Agreement by the
Employee or any of his affiliates, associates, partners or agents, either
directly or indirectly, without any requirement to post bond or other security
and that such right to injunction shall be cumulative and in addition to
whatever other remedies the Company may possess.
11. Arbitration. Subject to the provisions of Section 10 hereof
regarding the remedy of injunctive relief, any dispute (whether based on
contract, tort, or statutory duty or prohibition) arising out of or in
connection with this Agreement shall be submitted to binding arbitration, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association (as modified by this Agreement) by one arbitrator, designated in
accordance with those rules. No one who has ever had any business, financial,
family, or social relationship with any party to this Agreement shall serve as
an arbitrator unless the related party informs the other party of the
relationship and the other party consents in writing to the use of that
arbitrator.
The party demanding arbitration shall submit a written claim to the
other party, setting out the basis of the claim. A prearbitration hearing shall
be held within twenty (20) business days after the arbitrator's selection. The
arbitration shall be held within ninety (90) calendar days after the
prearbitration hearing. The arbitrator shall establish any deadlines to
accomplish this goal. The arbitration shall take place in Napa, California, at a
time and place selected by the arbitrator.
Each party shall be entitled to discovery of essential documents and
witnesses, as determined by the arbitrator. No less than thirty (30) calendar
days before the arbitration, a party may serve a document request calling for
any document that would be discoverable in a state civil proceeding. The served
with this request shall deliver the requested documents and any objections
within ten (10) calendar days. The arbitrator may resolve any dispute over the
exchange of documents. Each party may take no more than three (3) depositions,
unless additional depositions are allowed by the arbitrator for good cause. All
depositions must be completed as of fifteen (15) calendar days before the
arbitration hearing unless the parties otherwise agree. The arbitrator may
resolve any dispute over the depositions as they would be resolved in a state
civil proceeding. Any motion may be heard by the arbitrator on three (3) days
notice unless the parties otherwise agree. The arbitrator shall apply California
law.
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The parties agree that all information supplied by any party shall be
deemed to be confidential information, and the arbitrator and other participants
in the dispute shall protect such information from disclosure to the same extent
as confidential information under Section 7 of this Agreement.
The arbitrator shall have the following powers:
(a) To issue subpenas for the attendance of witnesses and subpenas
duces tecum for the production of books, records, documents, and
other evidence;
(b) To order depositions to be used as evidence;
(c) Consistent with the discovery procedures enumerated above, to
enforce the rights, remedies, procedures, duties, liabilities,
and obligations of discovery as if the arbitration were a civil
action before a California superior court;
(d) To conduct a hearing on the arbitration issues and related legal
and discovery issues;
(e) To administer oaths to parties and witnesses;
(f) To award all damages and remedies which would be available in a
civil action before a California superior court.
(g) To award expenses and fees of arbitration as the arbitrator deems
proper; and
(h) To order such other relief as the arbitrator deems proper.
Within fifteen (15) calendar days after completion of the arbitration,
the arbitrator shall submit a tentative decision in writing specifying the
reasoning for the decision and any calculations necessary to explain the award.
Each party shall have fifteen (15) calendar days in which to submit written
comments to the tentative decision. Within ten (10) calendar days after the
deadline for written comments, the arbitrator shall announce the final award.
Any party may enter the final award as a judgment in any court of competent
jurisdiction.
The Company shall pay the arbitrator's expenses and fees, all meeting
room charges, and any other expenses that would not have been incurred if the
case were litigated in the judicial forum having jurisdiction over it. Unless
otherwise ordered by the arbitrator, each party shall pay its own attorney fees,
witness fees and other expenses incurred by the party for his or its own
benefit. The arbitrator may award the prevailing
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party his or its expenses and fees of arbitration, including reasonable attorney
fees and costs, including witness fees, in such proportion as the arbitrator
decides.
12. No Prior Agreements. The Employee represents and warrants that he
is not a party to or otherwise subject to or bound by the terms of any contract,
agreement or understanding which in any manner would limit or otherwise affect
his ability to perform his obligations hereunder, including without limitation
any contract, agreement or understanding containing terms and provisions in any
manner similar to those contained in Sections 5, 6, and/or 7 hereof. The
Employee further represents and warrants that his employment with the Company
will not require him to disclose or use any confidential information belonging
to prior employers or other persons or entities.
13. Assignment. The Employee shall not delegate his employment
obligations pursuant to this Agreement to any other person. This Agreement may
be assigned by the Company without the Employee's consent. The rights and
protections of the Company hereunder shall extend to any successors or assigns
of the Company and to the Company's present or future parents, subsidiaries,
divisions and affiliates.
14. Employer's Authority. The relationship between the parties hereto
is that of employer and employee. The Employee agrees to observe and comply with
the rules and regulations of the Company, as adopted by the Company from time to
time with respect to the performance of the duties of the Employee. The Employee
acknowledges that he has no authority to enter into any contracts or other
obligations that are binding upon the Company unless such contracts or
obligations are authorized by the Board of Directors. The Company shall have the
power to direct, control and supervise the duties to be performed by the
Employee, the manner of performing said duties, and the time of performing said
duties.
15. Governing Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of California, without
giving effect to any of the conflicts of laws provisions thereof that would
compel the application of the substantive laws of any other jurisdiction. The
Company and the Employee each hereby irrevocably submit to the jurisdiction of
the state or federal courts located in the State of California in connection
with any suit, action or other proceeding arising out of or relating to this
Agreement and hereby agree not to assert, by way of motion, as a defense, or
otherwise in any such suit, action or proceeding that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Agreement or the subject matter
hereof may not be enforced by such courts.
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings and arrangements, both oral and
written, between the parties hereto with respect to such subject matter.
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17. Notices. All notices, requests, demands and other communications
under this Agreement will be in writing and will be deemed to have been duly
given (a) on the date of the service if served personally on the party to whom
notice is to be given, (b) on the date of transmission if transmitted by
facsimile with confirmation of receipt, (c) on the date of receipt if mailed to
the party to whom notice is to be given by first class mail, registered or
certified, postage prepaid or by overnight courier service (i.e., Federal
Express or equivalent) and unless either party should notify the other of a
change of address properly addressed as follows, or (d) otherwise on the date of
receipt when the intended recipient has acknowledged receipt:
(i) If to the Employee:
Xxxx Brain
000 Xx. Xxxxxxx Xxxxx
Xxxx, XX 00000
(ii) If to the Company:
North Bay Bancorp
0000 Xxxxxx Xxxxxx
Xxxx, Xxxxxxxxxx 00000
Attention: President and Chief Executive Officer
Facsimile: (000) 000-0000
18. Binding Effect. The obligations of the Employee under this
Agreement shall continue after the expiration of this Agreement and the
termination of his employment with the Company for any reason, shall be binding
upon his heirs, executors, personal representatives, legal representatives and
assigns and shall inure to the benefit of any successor and assigns of the
Company.
19. Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall not affect the enforceability of the remaining portions of this Agreement
or any part thereof, all of which are inserted conditionally on their being
valid in law, and, in the event that any one or more of the words, phrases,
sentences, clauses, sections or subsections contained in this Agreement or any
part thereof shall be declared invalid, this Agreement shall be construed as if
such invalid word or words, phrase or phrases, sentence or sentences, clause or
clauses, section or sections or subsection or subsections had not been inserted.
If such invalidity is caused by length of time or size of area, or both, the
otherwise invalid provision will be considered to be reduced to a period or area
which would cure such invalidity.
20. Section Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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21. No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the parties hereto and their respective heirs, personal
representative, legal representative, successors and assigns, any rights or
remedies under or by reason of this Agreement.
22. Amendment; Modification; Waiver. No amendment, modification or
waiver of the terms of this Agreement shall be valid unless made in writing and
duly executed by the Company and the Employee. No delay or failure at any time
on the part of the Company in exercising any right, power or privilege under
this Agreement, or in enforcing any provision of this Agreement, shall impair
any such right, power or privilege, or be construed as a waiver of any default
or as any acquiescence therein, or shall affect the right of the Company
thereafter to enforce each and every provision of this Agreement in accordance
with its terms. The waiver by either party hereto of a breach or violation of
any term or provision of this Agreement shall neither operate nor be construed
as a waiver of any subsequent breach or violation.
THE EMPLOYEE ACKNOWLEDGES THAT HE HAS READ AND UNDERSTANDS THE FOREGOING
PROVISIONS AND THAT SUCH PROVISIONS ARE REASONABLE AND ENFORCEABLE.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
EMPLOYEE
_____________________________________
Xxxx Brain
COMPANY
By: ________________________________
Xxxxx X. Xxxxxxxx, President
and Chief Executive Officer
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