EXHIBIT 10.54
RESTATED AND AMENDED
SENIOR MANAGER SEPARATION BENEFITS AGREEMENT
THIS RESTATED AND AMENDED SENIOR MANAGER SEPARATION BENEFITS AGREEMENT
("Agreement") is made and entered into as of September 21, 1998 and deemed
effective as of January 10, 1996, by and between SIERRAWEST BANK, a California
banking corporation and its banking subsidiary TRUCKEE RIVER BANK (hereinafter
"Company"), with its principal offices located at 10181 Truckee Tahoe Airport
Road, P.O. Box 61000, Xxxxxxx, Xxxxxxxxxx 00000 and Xxxx Xxxx Xxxxxxx, an
individual ("Executive"). This Agreement replaces and supercedes all prior
agreements between the parties relating to the subject matter hereof.
WITNESSETH
WHEREAS, Executive currently serves as a senior officer and 'at will'
employee of Company and reasonably expects to remain a senior officer and
employee subject to the policies and conditions contained within the Company's
Personnel Policies and Procedures;
WHEREAS, the parties deem it to be in their respective and mutual best
interests to agree on appropriate and reasonable separation compensation payable
to Executive should Executive's employment with Company terminate under certain
circumstances.
NOW, THEREFORE, in consideration of the promises set forth below and for
other good and valuable consideration, the parties agree as follows:
1. APPLICABILITY OF AGREEMENT: DEFINITION OF TERMINATION: This Agreement
provides for additional benefits not otherwise due to Executive and/or to
employees generally upon employment termination and is intended to become
operative only upon Executive's termination of employment and only under the
following circumstances: (i) termination by Company "without cause;" or (ii)
resignation by Executive "for good reason." Termination of employment due to
Executive's death, disability, "cause" or resignation other than "for good
reason" is not covered by this Agreement.
(a) For purposes of this Agreement, "cause" is defined as any one or more of
the following: (i) conduct constituting a felony, a misdemeanor involving moral
turpitude or financial misconduct; (ii) engaging in fraudulent or unethical
business practices prohibited by law or company policies; (iii) material
violation of any company policies or procedures, as determined by the Human
Resources director and the Personnel Committee of the Board of Directors; (iv)
continued failure, refusal or inability to perform material job duties, repeated
drug or alcohol abuse, or a pattern of absence for reasons other than disability
or illness, (all following ten days' written notice setting forth the nature of
the basis as described in subsection (iv)).
(b) For purposes of this Agreement, resignation "for good cause" means
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resignation in response to and reasonably promptly following a material
reduction in job duties and responsibilities and/or material reduction in
compensation, which material reduction in job duties, responsibilities and/or
compensation occurs within six (6) months following a Change of Control. For
this purpose, Change of Control is defined as any one of the following, provided
however that Change of Control shall be without the monetary assistance of the
FDIC: (i) an acquisition (other than directly from Company) by an individual,
entity or group (excluding Company or one of its employee benefit plans or an
entity controlled by Company's shareholders) of 20% or more of Company's common
stock or voting securities; (ii) a change in a majority of the current Board of
Directors (excluding any persons approved by a vote of at least a majority of
the Board other than in connection with an actual or threatened proxy contest);
(iii) liquidation or dissolution of Company or a merger, consolidation or sale
of all or substantially of the Company's assets ("Business Combination") other
than one in which all or substantially all of Company's shareholders receive 50%
or more of the stock of the company resulting from the Business Combination, at
least a majority of the board of directors of the resulting corporation were
members of the incumbent board, and after which no person owns 20% or more of
the stock of the resulting corporation who did not own such stock immediately
before the Business Combination.
2. CONDITIONS FOR PAYMENT OF SEPARATION BENEFITS. Separation benefits set
forth in Paragraph 3 are due and payable to Executive only after each of the
following requirements has been satisfied:
a. A termination as defined in Paragraph 1 has occurred;
b. Executive has left or will promptly thereafter leave his/her employment; and
c. Executive has executed a waiver, release and indemnification in a form
acceptable to the Company with regard to any and all claims which might be
brought relating to his employment with the Company or termination therefrom;
and
d. Executive has agreed, in a form acceptable to the Company, to maintain the
confidentiality of any and all confidential and/or proprietary information
and/or trade secrets, processes and plans of the Company learned or otherwise
made known to him during his employment.
3. SEPARATION BENEFITS. In addition to any earned but unpaid compensation
(including salary and vacation) up to the termination date, and in addition to
any vested benefits to which Executive may be entitled up to the termination
date under any other plan or agreement with the Company, the Company will pay
Executive, at his option, either a or b below:
a. A lump sum payment equal to NINE (9) months of monthly salary, less any and
all necessary withholdings and authorized deductions arising from benefit
elections or any other sums required to be deducted by law, rule or regulation.
If Executive elects this option, and further if Executive elects to continue
health coverage pursuant to the provisions of the Consolidated Omnibus
Reconciliation Act of 1986, as amended ("COBRA") Executive will be required to
pay the full premium rate authorized by COBRA for any continued health
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insurance coverage elected at the time of Termination;
or
b. Continuation of monthly salary for NINE (9) months, less any and all
necessary withholdings and authorized deductions arising from benefit elections,
or any other sums required to be deducted by law, rule or regulation. If
Executive elects this option, and further if Executive elects to continue health
coverage pursuant to the provisions of COBRA, the Company will continue to
charge Executive the applicable employee coverage rate for Nine (9) months
provided such arrangement does not violate any existing policy or law and
provided that the employee rate is lower than the COBRA rate that may be
assessed.
The payment option elected shall be deemed the "Separation Benefit" and will
result automatically in a waiver of any other separation benefits which might
be due to Executive following the Termination as more fully set forth in
Paragraph 4.
4. ACKNOWLEDGMENT, EXPRESS WAIVER AND RELEASE OF OTHER SEPARATION BENEFITS.
Executive acknowledges that the Separation Benefit paid pursuant to this
Agreement exceeds any benefits he is otherwise entitled to receive, and further
that payments hereunder are deemed to satisfy fully any other obligations that
the Company may have with regard to separation benefits payable upon his
termination, including but not limited to any laws or customs regarding
reduction in force or job-site closing. To the extent that any additional sums
are adjudicated or otherwise determined to be required to be paid to Executive
on termination, the parties agree that all sums paid pursuant to this Agreement
shall be credited automatically against any amounts otherwise determined to be
required to be paid.
5. BINDING EFFECT OF AGREEMENT. This Agreement shall inure to the benefit of
and be binding upon the heirs, administrators, personal representatives,
successors and assigns of the Company and Executive respectively.
6. AT WILL EMPLOYMENT. Executive acknowledges that nothing in this
Agreement is intended to change the "at will" nature of his employment.
7. CAPTIONS: The captions set forth herein are included solely for ease and
convenience of reference and are not to be considered or construed in the
interpretation of this Agreement.
8. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between
the parties and no statement or representation of either party hereto, their
agents, officers, directors or employees made outside of this Agreement and not
contained herein shall form a part of this Agreement or be binding upon the
other party. This Agreement shall not be changed, modified, altered or amended,
except by written instrument signed by the parties hereto.
9. GOVERNING LAW: This Agreement shall be construed and governed in accordance
with the laws of the State of California, with venue appropriate in the County
wherein Executive is predominantly employed. Any provision of this Agreement
prohibited by law shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement. In the event of
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any litigation or action being commenced with regard to this Agreement, the
prevailing party shall be awarded its reasonable attorneys fees, costs and
expenses.
10. AUTHORITY AND INFORMED CONSENT: Executive represents and warrants that he
has the sole right and exclusive authority to execute this Agreement and that he
is not restricted in so doing; that he is executing this Agreement on a fully
informed, voluntary basis; and that he has had a full and complete opportunity
to seek and obtain the advice of counsel or other adviser of his choosing prior
to executing this Agreement.
IN WITNESS WHEREOF, the parties hereto have made, executed and delivered
this Agreement as of the day and year first above written.
/s/ Xxxx Xxxx Xxxxxxx
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Xxxx Xxxx Xxxxxxx
SIERRAWEST BANK,
a California corporation
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Its: President and CEO
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