Attached files
| file | filename |
|---|---|
| 8-K - WEST COAST BANCORP /NEW/OR/ | v208214_8k.htm |
| EX-10.2 - WEST COAST BANCORP /NEW/OR/ | v208214_ex10-2.htm |
EXHIBIT 99.1
EMPLOYMENT
AGREEMENT
FOR
ROBERT
D. SZNEWAJS
Effective
Date: January 1, 2011
West
Coast Bancorp
and
West
Coast Bank
TABLE OF
CONTENTS
|
Page
|
||
|
Section
1
|
The
Parties
|
1
|
|
Section
2
|
Term
|
1
|
|
Section
3
|
Position
|
1
|
|
Section
4
|
Duties
|
1
|
|
Section
5
|
Time
Commitment; Outside Activities
|
2
|
|
Section
6
|
Compensation
|
2
|
|
Section
7
|
Grounds
for Termination of Employment
|
4
|
|
Section
8
|
Payments
Upon Termination
|
7
|
|
Section
9
|
Severance
Benefits
|
7
|
|
Section
10
|
Termination
Upon Change In Control
|
11
|
|
Section
11
|
Effect
of Termination on Other Positions
|
12
|
|
Section
12
|
No
Mitigation or Offset
|
12
|
|
Section
13
|
Confidentiality
|
12
|
|
Section
14
|
Assistance
with Claims
|
13
|
|
Section
15
|
General
Provisions
|
14
|
|
Signatures
|
|
16
|
EMPLOYMENT
AGREEMENT
Effective
Date: January 1, 2011
|
1.
|
The
Parties.
This Employment Agreement (the “Agreement”) is made by and
among:
|
|
|
(a)
|
WEST COAST
BANCORP (“Bancorp”) and WEST COAST BANK (the “Bank”), (collectively
the “Company”); and
|
|
|
(b)
|
ROBERT
D. SZNEWAJS (the “Executive”).
|
|
2.
|
Term. The
Company employs the Executive for a three-year term beginning effective as
of January 1, 2011, and expiring on December 31, 2013,
subject to earlier termination under the terms and conditions of this
Agreement.
|
|
3.
|
Position.
|
|
|
(a)
|
CEO and
President. The Executive’s title will be Chief Executive
Officer and President of Bancorp. At the discretion of the
Board of Directors of Bancorp, the Executive shall also be the Chief
Executive Officer and/or President of the
Bank.
|
|
|
(b)
|
Directorship. Subject
to shareholder approval as required, the Executive will serve as a
director of:
|
|
|
(1)
|
Bancorp
and the Bank; and
|
|
|
(2)
|
Such
of their subsidiaries and affiliated companies as the Company may
designate from time to time.
|
|
4.
|
Duties. The
Executive shall:
|
|
|
(a)
|
Use
his best efforts to faithfully and efficiently
perform—
|
|
|
(1)
|
Those
duties that are specified for the Executive’s position in the Company’s
bylaws and other governing documents;
and
|
|
|
(2)
|
Any
additional duties consistent with the Executive’s position as may be
reasonably designated from time to time by the Company’s Board of
Directors, either with or without additional
compensation;
|
|
|
(b)
|
Report
directly to the Board of Directors of Bancorp and the Bank, as
applicable; and
|
|
|
(c)
|
Comply
with the Company’s employment policies, procedures and practices that
apply to other senior executives. However, if there is a
conflict between those policies, procedures and practices and the terms
and conditions of this Agreement, this Agreement shall
control.
|
PAGE 1 EMPLOYMENT AGREEMENT
|
5.
|
Time Commitment;
Outside Activities.
|
|
|
(a)
|
Except
as provided in subsection (b) below, the Executive shall devote his
full working time, attention and talents to performing his duties under
Section 4.
|
|
|
(b)
|
The
Executive may engage in civic, community, investment and outside business
activities provided they:
|
|
|
(1)
|
Do
not interfere with his duties under Section 4;
and
|
|
|
(2)
|
Are
either:
|
|
|
(A)
|
Allowed
under the Company’s Governance Policy as in effect at the time;
or
|
|
|
(B)
|
Expressly
approved in advance by Bancorp’s or the Bank’s Board of Directors, as
applicable.
|
|
6.
|
Compensation.
|
|
|
(a)
|
Salary. The
Executive will receive an annual salary of $420,000, payable in accordance
with the Company’s regular payroll schedule and
practices.
|
|
|
(b)
|
Bonus. The
Executive’s targeted annual bonus will be 50 percent of his annual
salary. The actual bonus amount for any year will be determined
by the Committee in its discretion under subsection (k)
below.
|
|
|
(c)
|
SERP. The
Executive shall receive retirement benefits under the terms and conditions
of the Supplemental Executive Retirement Plan as restated
January 1, 2011.
|
|
|
(d)
|
Incentive
Awards. The Executive shall not receive any stock option
or restricted stock awards during the term of this
Agreement.
|
|
|
(e)
|
Deferred
Compensation. The Executive shall be entitled to
participate in any deferred compensation plan or program available to the
Company’s senior executives.
|
|
|
(f)
|
Employee
Benefits. To the extent allowed by law and regulations,
the Executive shall participate in all pension benefit plans, welfare
benefit plans, insurance plans or programs and other fringe benefit plans
or programs the Company has in effect for its employees and other senior
executives.
|
PAGE
2 EMPLOYMENT AGREEMENT
|
|
(g)
|
Vacation.
|
|
|
(1)
|
The
Executive shall be entitled to four weeks of paid vacation each calendar
year in addition to all holidays observed by the
Company.
|
|
|
(2)
|
The
Executive’s ability to carry over unused vacation time to a subsequent
year and the minimum amount of vacation the Executive is required to take
each year shall be determined under the Company’s policies and practices
as then in effect for its senior
executives.
|
|
|
(h)
|
Fringe
Benefits. The Executive shall receive such other fringe
benefits and perquisites as are provided to the Company’s senior
executives.
|
|
|
(i)
|
Business
Expenses. The Company shall reimburse the Executive, in
accordance with the Company’s policies and procedures applicable to senior
executives, for all reasonable expenses incurred by him in the performance
of his duties.
|
|
|
(j)
|
No Board
Fees. The Executive shall not receive any additional
compensation for serving on the Board of Directors of Bancorp, the Bank or
any of their subsidiaries or affiliated
companies.
|
|
|
(k)
|
Annual
Review. The Committee shall review the Executive’s
compensation annually as follows:
|
|
|
(1)
|
The
review shall determine:
|
|
|
(A)
|
The
amount of the annual bonus, if any, for the previous year;
and
|
|
|
(B)
|
Whether
any other benefit increases or additional benefits
are warranted.
|
|
|
(2)
|
In
making its determinations under paragraph (1) above, the Committee
shall take into account the reasonableness of the Executive’s overall
compensation package (for example, determining whether providing an
additional benefit should offset increases in other types of
compensation); and
|
|
|
(3)
|
The
Executive will have the opportunity to meet with the Chair of the
Committee reasonably in advance of each of the Committee’s annual meetings
under this subsection.
|
PAGE
3 EMPLOYMENT AGREEMENT
|
7.
|
Grounds
for Termination of Employment. The
Executive’s employment may be terminated for any of the following
reasons:
|
|
|
(a)
|
Termination by the Company for
Cause. The Company may terminate the Executive’s
employment for cause as follows—
|
|
|
(1)
|
“Cause”
means any of the following
circumstances:
|
|
|
(A)
|
Embezzlement,
dishonesty or other fraudulent acts involving the Company or the Company’s
business operations;
|
|
|
(B)
|
Material
breach of Section 13 of this
Agreement;
|
|
|
(C)
|
Conviction
(whether entered upon a verdict or a plea, including a plea of no contest)
on any felony charge or on a misdemeanor reflecting upon the Executive’s
honesty;
|
|
|
(D)
|
An
act or omission that materially injures the Company’s reputation, business
affairs or financial condition, if that injury could have been reasonably
avoided by the Executive; or
|
|
|
(E)
|
Failure
or refusal of the Executive to substantially perform his duties to the
Company (except during a period of disability that does not exceed the
maximum allowable under subsection (f)(1) below), including willful
misfeasance or gross negligence in the performance of those duties or
willful disregard of the lawful directives of the Board; provided,
however, that the Executive is first
given—
|
|
|
(i)
|
Written
notice by the Committee specifying in detail the performance issues;
and
|
|
|
(ii)
|
A
reasonable opportunity to cure the issues specified in
the notice.
|
|
|
(2)
|
Limitations. The
Company may not terminate the Executive’s employment for cause
unless:
|
|
|
(A)
|
Two-thirds
of Bancorp’s Board of Directors determine that cause exists based upon
substantial evidence (that is, proof by a preponderance of the evidence,
clear and convincing evidence or beyond a reasonable doubt is not
required);
|
|
|
(B)
|
The
Executive is given reasonable notice of the Board meeting called to make
that determination; and
|
|
|
(C)
|
The
Executive and the Executive’s legal counsel are given the opportunity to
address that meeting.
|
PAGE
4 EMPLOYMENT AGREEMENT
|
|
(b)
|
Termination by the Company
without Cause. The Company may terminate the Executive’s
employment without cause for any reason or for no
reason.
|
|
|
(c)
|
Termination by the Executive
for Good Reason. Subject to the limitations in
paragraph (2) below, the Executive may terminate his employment for
good reason as follows—
|
|
|
(1)
|
“Good
Reason” means any one or more of the following conditions that
occur without the Executive’s express written
consent:
|
|
|
(A)
|
A
material reduction in the Executive’s
salary;
|
|
|
(B)
|
A
material diminution in the Executive’s authority, duties or
responsibilities (including requiring the Executive to report to a
corporate officer instead of Bancorp’s Board of
Directors);
|
|
|
(C)
|
A
material diminution of the budget over which the Executive retains
authority;
|
|
|
(D)
|
A
relocation or transfer of the Executive’s place of employment to an office
or location that is more than 35 miles from the Executive’s then current
place of employment; or
|
|
|
(E)
|
Any
other action or inaction that constitutes a material breach of this
Agreement by the Company.
|
|
|
(2)
|
Limitations. Generally,
the Executive may not terminate his employment for Good Reason
unless:
|
|
|
(A)
|
The
termination occurs within two years of the date of the initial existence
of the condition constituting Good
Reason;
|
|
|
(B)
|
The
Executive gives the Company notice of the existence of the Good Reason
condition within 90 days of its initial existence;
and
|
|
|
(C)
|
The
Company has a reasonable opportunity of at least 30 days in which to cure
the condition. The Company is not required to pay severance
benefits under Section 9 during this correction
period.
|
If the
Executive fails to comply with subparagraph (A) or (B) above, the
Executive’s termination of employment will be considered a termination for Good
Cause under this Agreement only if the Executive and Bancorp agree that, under
the facts and circumstances, the Executive’s termination of employment qualifies
as a “separation from service for good reason” for purposes of Internal Revenue
Code § 409A.
PAGE
5 EMPLOYMENT AGREEMENT
|
|
(d)
|
Termination by the Executive
without Good Reason. The Executive may voluntarily
terminate employment without good reason upon at least 60 days’ prior
written notice to the Company.
|
|
|
(e)
|
Death. This Agreement
will terminate immediately upon the Executive’s
death.
|
|
|
(f)
|
Disability. The
Company may terminate this Agreement upon the Executive’s disability as
follows:
|
|
|
(1)
|
The
disability must continue for
either:
|
|
|
(A)
|
90
consecutive calendar days; or
|
|
|
(B)
|
180
calendar days in any 12 consecutive month
period.
|
|
|
(2)
|
Disability
will be determined by a physician selected by the Company with the
Executive’s consent, which consent cannot be
unreasonably withheld.
|
|
|
(3)
|
For
purposes of paragraphs (1) and (2) above, “disability” means any
physical or mental condition which renders the Executive unable to
perform, with reasonable accommodations that do not cause an undue
hardship to the Company, his essential job functions under
this Agreement.
|
|
|
(4)
|
If
the Company terminates this Agreement for disability under facts and
circumstances that do not satisfy the requirement of paragraphs (1),
(2) and (3) above, the termination shall be treated as a termination
without cause.
|
|
|
(g)
|
Separation from
Service. For purposes of this Agreement, the Executive
will have a termination of employment only if
either:
|
|
|
(1)
|
The
Company and the Executive reasonably anticipate that the Executive will
not render any services to the Company after the date of termination under
this Agreement; or
|
|
|
(2)
|
The
Company and the Executive agree that the Executive will continue to
provide bona fide services to the Company (either as an employee or an
independent contractor) after the date of termination of employment under
this Agreement, but only if those services do not rise to such a level
that the termination of the Executive’s employment under this Agreement
would no longer qualify as a “separation from service” for purposes of
Internal Revenue
Code § 409A.
|
PAGE
6 EMPLOYMENT AGREEMENT
|
8.
|
Payments
Upon Termination. Regardless
of the reason for the termination, compensation and benefits earned or
accrued through the date of the termination of the Executive’s employment
will be paid as follows:
|
|
|
(a)
|
The
following amounts will be paid within the time required by the Oregon wage
and hour laws:
|
|
|
(1)
|
Salary
earned through the date of termination;
and
|
|
|
(2)
|
The
bonus for the year before the year in which the termination occurs to the
extent unpaid as of the date of
termination;
|
|
|
(b)
|
Business
expenses reimbursable under this Agreement that were incurred though the
date of termination will be paid as soon as administratively feasible, but
in no event later than 60 days following the termination date;
and
|
|
|
(c)
|
Employee
benefits and other fringe benefits accrued through the date of termination
will be paid in accordance with the terms and conditions of the applicable
plan or arrangement.
|
|
9.
|
Severance
Benefits. If the
Executive’s employment is terminated by the Company without cause or by
the Executive for Good Reason, the Company will pay the Executive the
following severance benefits in addition to the payments under Section
8:
|
|
|
(a)
|
At
the times specified in paragraph (5) below, the Company will pay the
Executive a total payment equal to the sum of the amounts determined under
paragraphs (1), (2), (3) and
(4) below.
|
|
|
(1)
|
The
product of:
|
|
|
(A)
|
The
Executive’s annual base salary as in effect on the date
of termination,
|
multiplied by
|
|
(B)
|
The
number of days from the date of termination through
December 31, 2013, divided by
365.
|
|
|
(2)
|
The
annualized amount of the bonus the Executive earned through the date of
termination for the year in which the termination occurred, to the extent
unpaid. For this purpose, the amount of the bonus earned will
be determined by the extent to which the Executive, as of the date of
termination, was on track for achieving the bonus measurement criteria for
the year in which the termination
occurred.
|
PAGE
7 EMPLOYMENT AGREEMENT
(3) The
product of:
|
|
(A)
|
The
average of—
|
|
|
(i)
|
The
actual bonus paid or payable for the year before the year in which the
termination occurs; and
|
|
|
(ii)
|
The
bonus amount determined under paragraph (2)
above,
|
multiplied
by
|
|
(B)
|
The
number of days from January 1 of the year following the year in which the
termination occurred, through December 31, 2013, divided by
365.
|
|
|
(4)
|
An
amount equal to the sum of the Executive’s “deemed matching contribution”
(as determined under subparagraph (B) below) and the Executive’s
“deemed profit-sharing contribution” (as determined under
subparagraph (C) below).
|
|
|
(A)
|
For
purposes of determining the Executive’s deemed matching and profit-sharing
contributions, the Executive’s “deemed 401(k) Plan compensation” will
be the total amount payable under subsection (a)(1), (2) and (3)
above, but limited to the maximum amount allowable under the 401(k) Plan’s
definition of “compensation” as in effect at that
time;
|
|
|
(B)
|
The
deemed matching contributions will be determined
as follows—
|
|
|
(i)
|
First,
the Executive’s “deemed elective deferral contributions” will be
determined by multiplying the Executive’s deemed 401(k) Plan compensation
under subparagraph (A) above by the lesser
of:
|
|
|
(I)
|
The
deferral percentage the Executive had in effect under the 401(k) Plan
on the date of termination; or
|
|
|
(II)
|
The
maximum deferral percentage allowed by the 401(k) Plan for highly
compensated employees (if applicable to the Executive) for the plan year
in which termination occurs, if that percentage has been determined by the
date of termination;
|
PAGE 8 EMPLOYMENT AGREEMENT
|
|
(ii)
|
Second,
the deemed matching contribution formula will be applied to the amount of
the deemed elective deferral contributions as calculated under
clause (i) above, to determine the amount of the deemed matching
contributions. For this purpose, the “deemed matching
contribution formula” is:
|
|
|
(I)
|
The
401(k) Plan’s matching contribution formula for the plan year in
which the termination occurs; or
|
|
|
(II)
|
If
that formula has not been determined by the date of termination, the
formula for the previous plan year;
and
|
|
|
(C)
|
The
deemed profit-sharing contributions will be determined by multiplying the
Executive’s deemed 401(k) Plan compensation under
subparagraph (A) above by—
|
|
|
(i)
|
The
actual bonus paid or payable for the bonus computation year that ended
before the bonus computation year in which the termination occurs;
and
|
|
|
(ii)
|
The
annualized amount of the bonus the Executive earned, determined as of the
end of the month in which the termination occurs, for the bonus
computation year in which the termination occurs;
and
|
|
|
(5)
|
The
portion of the Executive’s separation pay that does not exceed the maximum
409A separation pay limit, shall be paid to the Executive in a lump-sum
payment as soon as administratively feasible after the date of
termination, but in no event later than 15 business days after the date of
termination. The portion of the Executive’s separation pay that
exceeds the maximum 409A separation pay limit will be paid to the
Executive in a lump-sum payment on the first business day of the seventh
month following the date of termination (or, if sooner, no later than 15
business days after the Executive’s death). The following
definitions apply for purposes of this
paragraph:
|
|
|
(A)
|
“Separation pay” means
the amount payable under subsection (a) above, reduced, to the extent
required by Internal Revenue Code § 409A, by amounts payable
under subsections (c) and
(d) below.
|
|
|
(B)
|
“Maximum 409A separation pay
limit” means two times the
lesser of:
|
|
|
(i)
|
The
Executive’s annualized base salary for the year of termination;
or
|
PAGE
9 EMPLOYMENT AGREEMENT
|
|
(ii)
|
The
maximum amount that may be taken into account as includible compensation
under a qualified retirement plan pursuant to Internal Revenue Code
§ 401(a)(17) for the year in which the termination
occurs.
|
|
|
(b)
|
Upon
the date of termination—
|
|
|
(1)
|
All
stock options held by the Executive that are not otherwise vested as of
that date shall become immediately vested and exercisable notwithstanding
any vesting provisions in the grant of those options;
and
|
|
|
(2)
|
Any
restrictions on the restricted stock held by the Executive shall
immediately lapse.
|
|
|
(c)
|
The
Company shall provide the Executive and his spouse with continued group
health plan coverage (medical, dental and vision) as
follows:
|
|
|
(1)
|
Coverage
shall continue until whichever of the following occurs
first:
|
|
|
(A)
|
The
date the Executive qualifies for group health plan coverage provided by a
subsequent employer; or
|
|
|
(B)
|
December
31, 2013.
|
|
|
(2)
|
During
the continuation period, the Company shall continue to pay the employer
portion of the premiums for coverage under its group health plans, except
as provided under paragraph (3)
below.
|
|
|
(3)
|
If
the Company reasonably determines that the Executive cannot participate in
the Company’s group health plans because he is no longer actively
performing services for the Company, the Company will pay the COBRA
coverage premiums for group health plan coverage for the Executive and his
spouse. If the COBRA continuation coverage period expires
before the benefits continuation period specified in paragraph (1)
above, the Company shall pay for the balance of the period remaining under
paragraph (1) above, the premiums for a conversion or portability
policy obtained by the Executive.
|
|
|
(4)
|
The
Bank agrees that, at each time it renews its group health plan coverage
during the Executive’s lifetime, it will request its insurance carrier to
extend the group health plan’s coverage to the Executive or to a group of
the Bank’s retired executives that includes the Executive, provided this
executive retiree coverage:
|
|
|
(A)
|
Does
not adversely affect the premiums for the Bank’s
active employees;
|
PAGE
10 EMPLOYMENT AGREEMENT
|
|
(B)
|
Does
not otherwise increase the Bank’s costs of providing group health plan
coverage;
|
|
(C)
|
Is
paid for solely by the retired executives;
and
|
|
|
(D)
|
Such
an arrangement is in compliance with applicable law as in effect at that
time.
|
If, in
the future, the Bank’s group health plan coverage is provided under an
arrangement other than a group insurance policy issued by a commercial insurance
carrier, the executive retiree coverage described above shall be offered under
such arrangement to the extent feasible, subject to the conditions of
subparagraphs (A), (B), (C) and (D) above.
|
|
(d)
|
The
Company shall provide the Executive with group life insurance coverage at
the same level as is in effect on the date of termination until whichever
of the following first occurs:
|
|
|
(1)
|
The
date the Executive qualifies for group life insurance coverage provided by
a subsequent employer; or
|
|
|
(2)
|
December
31, 2013.
|
|
10.
|
Termination Upon
Change In Control.
|
|
|
(a)
|
If Covered by C-I-C
Agreement. If
the Executive’s employment terminates under circumstances that qualify as
a “Termination Event” as defined in the Change In Control Agreement dated
December 30, 2008, between the Company and the Executive, as amended,
(the “C-I-C Agreement”), the Executive
will receive:
|
|
|
(1)
|
The
payments payable under Section 8 of this Agreement;
and
|
|
|
(2)
|
The
severance benefits payable in accordance with the terms and conditions of
the C-I-C Agreement in lieu of those payable under Section 9 of
this Agreement.
|
|
|
(b)
|
If Not Covered by C-I-C
Agreement. If the Executive’s employment terminates
under circumstances that do not qualify as a “Termination Event” as
defined in the C-I-C Agreement (e.g., because the change in
beneficial ownership is not large enough to qualify as a change in control
as defined under the C-I-C Agreement or because the termination
occurs after the period of time covered by that agreement), the
compensation and benefits payable to the Executive upon termination of
employment will be determined solely under
this Agreement.
|
PAGE
11 EMPLOYMENT AGREEMENT
|
11.
|
Effect
of Termination on Other Positions.
If, on the date of the termination of his employment with the Company, the
Executive is a member of the Board of Directors of the Company or any of
its subsidiaries or affiliates, or holds any other position with the
Company or any of its subsidiaries or affiliates, the Executive shall be
deemed to have resigned from all of those positions as of the date of his
termination of employment. The Executive shall sign such
documents and take such actions as the Company may request to effect those
resignations.
|
|
12.
|
No
Mitigation or Offset. Upon
the termination of his employment, the Executive shall be under no
obligation to seek other employment. Any remuneration the
Executive receives from any subsequent employment he may obtain shall not
offset any amounts due the Executive under this
Agreement.
|
|
13.
|
Confidentiality.
|
|
|
(a)
|
Nondisclosure. The
Executive shall not use or disclose any confidential information (as
defined in subsection (c) below), either during or following the term
of this Agreement, except as required by the Executive’s duties under this
Agreement or as otherwise allowed under subsection (b)
below.
|
|
|
(b)
|
Exceptions. The
nondisclosure obligation under subsection (a) above does not apply to
any use or disclosure that is:
|
|
|
(1)
|
Made
with Bancorp’s prior written
consent;
|
|
|
(2)
|
Required
by a court order or a subpoena from a government agency (provided,
however, that the Executive must first provide Bancorp with reasonable
notice of the court order or subpoena in order to allow Bancorp the
opportunity to contest the requested disclosure);
or
|
|
|
(3)
|
Of
confidential information that has been previously disclosed to the public
by the Company or is in the public domain (other than by reason of
Executive’s breach of this
Agreement).
|
|
|
(c)
|
“Confidential
Information” means any of the Company’s (or its subsidiaries’ or
affiliates’) trade secrets, customer or prospects lists, information
regarding product development, marketing plans, sales plans, strategic
plans, projected acquisitions or dispositions, management agreements,
management organization information (including data and other information
relating to members of the Board and management), operating policies or
manuals, business plans, purchasing agreements, financial records, other
similar financial, commercial, business or technical information or any
information that the Company or any of its subsidiaries or affiliates has
received from its service providers, other vendors or customers that these
third parties have designated as confidential
or proprietary.
|
PAGE
12 EMPLOYMENT AGREEMENT
|
|
(d)
|
Injunctive Relief and Other
Remedies. The Executive acknowledges and agrees that the
nondisclosure obligation under subsection (a) above relates to special,
unique and extraordinary matters and that a breach of that obligation will
cause the Company irreparable injury for which adequate remedies are not
available at law. Therefore, Executive agrees
that:
|
|
|
(1)
|
The
Company shall be entitled to an injunction, restraining order or such
other equitable relief (without the requirement to post bond) restraining
Executive from committing any breach or threatened breach of the
nondisclosure obligation under subsection (a)
above;
|
|
|
(2)
|
If
the Company is required to post a bond in order to secure an injunction or
other equitable remedy, that bond shall be no more than a nominal amount;
and
|
|
|
(3)
|
These
injunctive remedies are cumulative and are in addition to any other rights
and remedies the Company may have at law or in
equity.
|
|
|
(e)
|
Survival. This
section shall survive the termination of the
Executive’s employment.
|
|
14.
|
Assistance with
Claims.
|
|
|
(a)
|
The
Executive agrees that, both during and after his employment with the
Company, he will:
|
|
|
(1)
|
Assist
the Company and its subsidiaries and affiliates in the defense of any
claims, or potential claims that may be made or threatened to be made
against any of them in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a
“Proceeding”);
|
|
|
(2)
|
Assist
the Company and its subsidiaries and affiliates in the prosecution of any
claims that may be made by the Company or any subsidiary or affiliate in
any Proceeding, to the extent that such claims relate to the Executive’s
employment or the period of Executive’s employment with the
Company;
|
|
|
(3)
|
Unless
precluded by law, promptly notify the Company if he is asked to
participate (or otherwise become involved) in any Proceeding involving
such claims or potential claims;
and
|
|
|
(4)
|
Unless
precluded by law, promptly notify the Company if he is asked to assist in
any investigation (whether governmental or private) of the Company or any
of its subsidiaries or affiliates (or their actions), regardless of
whether a lawsuit has then been filed against the Company or any
subsidiary or affiliate with respect to that
investigation.
|
PAGE 13 EMPLOYMENT AGREEMENT
|
|
(b)
|
The
Company agrees to reimburse the Executive for all of his reasonable
out-of-pocket expenses associated with the assistance he renders under
this section, including travel expenses and any reasonable attorneys’ fees
and expenses, and shall pay the Executive a reasonable per diem fee for
his services.
|
|
15.
|
General
Provisions.
|
|
|
(a)
|
Applicable
Law.
|
|
|
(1)
|
This
Agreement shall be construed and its validity determined according to the
laws of the State of Oregon, other than its law regarding conflicts of law
or choice of law.
|
|
|
(2)
|
Any
dispute arising out of this Agreement must be brought in either Clackamas
County or Multnomah County, Oregon, and the parties will submit to
personal jurisdiction in either of those
counties.
|
|
|
(b)
|
Arbitration. Any
dispute or claim arising out of or brought in connection with this
Agreement, other than a claim by the Company under Section 13, shall
be submitted to final and binding arbitration as
follows:
|
|
|
(1)
|
Before
proceeding to arbitration, the parties shall first attempt, in good faith,
to resolve the dispute or claim by informal meetings and discussions
between them and/or their attorneys. The Chairman of the Board
will act on behalf of the Company at these meetings and
discussions. This informal dispute resolution process will be
concluded within 30 days or such longer or shorter period as may be
mutually agreed by the parties.
|
|
|
(2)
|
After
exhausting the informal dispute resolution process under
paragraph (1) above, upon the request of any party, the matter will
be submitted to and settled by arbitration under the rules then in effect
of the American Arbitration Association (or under any other form of
arbitration mutually acceptable to the parties involved). Any
award rendered in arbitration will be final and will bind the parties, and
a judgment on it may be entered in the highest court of the forum having
jurisdiction. The arbitrator will render a written decision,
naming the substantially prevailing party in the action and, subject to
subsection (c) below, will award such party all costs and expenses
incurred, including reasonable attorneys’
fees.
|
|
|
(c)
|
Attorneys’
Fees.
|
|
|
(1)
|
If
any breach of or default under this Agreement results in either party
incurring attorneys’ or other fees, costs or expenses (including those
incurred in an arbitration), the substantially prevailing party is
entitled to recover from the non-prevailing party its reasonable legal
fees, costs and expenses, including attorneys’ fees and the costs of the
arbitration, except as provided in paragraph (2)
below.
|
PAGE
14 EMPLOYMENT AGREEMENT
|
|
(2)
|
If
the Executive is not the substantially prevailing party, the Executive
shall be liable to pay the Company under paragraph (1) above only if
the arbitrator determines that:
|
|
|
(A)
|
There
was no reasonable basis for the Executive’s claim (or the Executive’s
response to the Company’s claim);
or
|
|
|
(B)
|
The
Executive engaged in unreasonable delay, failed to comply with a discovery
order or otherwise acted in bad faith in
the arbitration.
|
|
|
(3)
|
Either
party shall be entitled to recover any reasonable attorneys’ fees and
other costs and expenses it incurs in enforcing or collecting an
arbitration award.
|
|
|
(4)
|
If
an award under this section is made to the Executive, and accountants or
tax counsel selected by the Company with the Executive’s consent (which
shall not be unreasonably withheld) determine that the award is includible
in the Executive’s gross income, the Company shall also pay the Executive
a gross-up payment to offset the taxes imposed on that award, including
the taxes on the gross-up payment itself. This gross-up payment
shall be determined following the methodology employed in the
C-I-C Agreement.
|
|
|
(d)
|
Amendment. This
Agreement may be amended only by a written agreement signed by the
parties.
|
|
|
(e)
|
Notice.
|
|
|
(1)
|
Any
notice given under this Agreement shall be in writing delivered to a Party
at the address given below or to such other address as that Party has
given the other Parties in accordance with this
section.
|
|
To
the Executive:
|
The
last address on file in the Executive’s
personnel
file at the Company
|
|
|
To
the Company:
|
Attn: General
Counsel
|
|
|
5335
Meadows Road
|
||
|
Suite
201
|
||
|
Lake
Oswego, OR 97035
|
|
|
(2)
|
A
notice shall be deemed to have been given if it
is:
|
|
|
(A)
|
Delivered
by hand;
|
|
|
(B)
|
Mailed
by certified U.S. mail, return receipt requested, with postage prepaid;
or
|
PAGE
15 EMPLOYMENT AGREEMENT
|
|
(C)
|
Delivered
to a private carrier for guaranteed next-day
delivery.
|
|
|
(f)
|
Entire
Agreement. This Agreement constitutes the entire
agreement between the Company and the Executive as to its subject
matter. No rights are granted to the Executive by virtue of
this Agreement other than those specifically set forth in this document
and any amendments to it.
|
|
|
(g)
|
Construction. The
language of this Agreement was chosen jointly by the parties to express
their mutual intent. No rule of construction based on which
party drafted the Agreement or certain of its provisions will be applied
against any party.
|
|
|
(h)
|
Section
Headings. The section headings used in this Agreement
have been included for convenience of reference
only.
|
|
|
(i)
|
Counterparts. This
Agreement may be executed in one or more counterparts, and all
counterparts will be construed together as one
Agreement.
|
|
|
(j)
|
Severability. If
any provision of this Agreement is, to any extent, held to be invalid or
unenforceable, it will be deemed amended as necessary to conform to the
applicable laws or regulations. However, if it cannot be
amended without materially altering the intentions of the parties, it will
be deleted and the remainder of this Agreement will be enforced to the
extent permitted by law.
|
|
EXECUTIVE:
|
COMPANY:
|
||
|
WEST
COAST BANCORP
|
|||
|
/s/ Robert D. Sznewajs
|
By:
|
/s/ Lloyd D.
Ankeny
|
|
|
Robert
D. Sznewajs
|
|||
|
Title:
|
Chairman
|
||
| Date: | December 16, 2010 | ||
| Date: January 12, 2011 | |||
|
WEST
COAST BANK
|
|||
|
By:
|
/s/ Lloyd D.
Ankeny
|
||
|
Title:
|
Chairman
|
||
| Date: | December 16, 2010 | ||
PAGE 16 EMPLOYMENT
AGREEMENT