Exhibit 10.7
EMPLOYMENT AGREEMENT
This Employment Agreement (this
“Agreement”) is made effective as of August 28,
2008, by and between STERLING FINANCIAL CORPORATION
(“Sterling”) and J. GREGORY SEIBLY (the
“Executive”).
W I T N E S S E T H :
WHEREAS, the Executive is an Officer
of Sterling’s wholly-owned subsidiary Sterling Savings Bank
(the “Bank”), and Sterling desires to retain the
Executive and the Executive is willing to continue to serve in such
capacities on the terms and conditions herein set forth;
and
WHEREAS, the parties desire to enter
into this Agreement, which is intended to supersede any existing
employment agreement between the parties;
NOW THEREFORE, in consideration of
the mutual covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as
follows:
1. Employment . Sterling
agrees to continue to employ the Executive, and the Executive
agrees to continue to be employed by Sterling, upon the terms and
conditions hereinafter provided.
2. Position and Duties .
Sterling agrees to employ the Executive to serve as the Chief
Production Executive of the Bank, and the Executive will have such
powers and duties as are commensurate with such position and as may
be conferred upon him or her by the Board of Directors of Sterling
(the “Board”) or the Board of Directors of the Bank.
Executive shall faithfully perform such duties and shall do nothing
inconsistent with his or her duties to Sterling and the Bank.
Except for illness or incapacity and reasonable vacation periods as
shall be consistent with Sterling and the Bank’s policies for
senior officers, the Executive shall devote all of his or her
business time, attention, skill and efforts exclusively to the
business and affairs of Sterling and its subsidiaries.
3. Compensation . For all
services rendered by the Executive in any capacity required
hereunder, including, without limitation, services as an officer,
director, or member of any committee of Sterling, or any subsidiary
or division thereof, the Executive shall be compensated as
follows:
(a) Base Salary. Sterling shall pay
the Executive a fixed minimum salary of $325,000 per annum (such
amount or such higher annual amount as is paid from time to
time
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pursuant to the terms hereof being
referred to as the “Base Salary”). The Base Salary
shall be subject to such periodic review (which shall occur at
least annually) and such periodic increases as deemed appropriate
in accordance with Sterling and the Bank’s customary
procedures and practices regarding the salaries of senior officers.
The Base Salary shall be payable in accordance with the customary
payroll practices of Sterling, but in no event less frequently than
monthly.
(b) Other Benefits. The Executive
shall be entitled to participate in all compensation or employee
benefit plans or programs, and to receive all benefits, perquisites
and emoluments, for which any salaried employees of Sterling are
eligible under any plan or program now or hereafter established and
maintained by Sterling for senior officers, to the fullest extent
permissible under the general terms and provisions of such plans or
programs and in accordance with the provisions thereof, including
group hospitalization, health, dental care, life or other
insurance, tax-qualified pension, savings, thrift, 401(k) and
profit-sharing plans, termination pay programs, sick-leave plans,
travel or accident insurance, salary continuation plans, disability
insurance, automobile allowance or automobile lease plans, and
executive contingent compensation plans, including, without
limitation, stock option or incentive plan(s) then in
effect.
(c) Deferred Compensation
Bonus . In consideration for entering into employment with
Sterling, Sterling has contributed Two Hundred Thousand Dollars
($200,000.00) on behalf of Executive to the Sterling Savings Bank
Deferred Compensation Plan, which vests in accordance with the
following schedule, so long as Executive remains employed hereunder
on the dates listed below:
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|
|
|
|
|
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Vested Percentage
|
|
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The Effective Date of this Agreement
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25
|
%
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December 31, 2008
|
|
50
|
%
|
|
December 31, 2009
|
|
75
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%
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December 31, 2010
|
|
100
|
%
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4. Termination of Employment
.
(a) Termination. Either Sterling or
Executive may terminate Executive’s employment at any time in
such party’s sole discretion. Except as expressly provided in
this Agreement, upon termination of employment Sterling shall have
no liability to pay any further compensation or any other benefit
or sum whatsoever to Executive.
(b) In the event that the
Executive’s employment hereunder terminates, earned but
unpaid Base Salary as of the date of Termination of Employment
shall be payable in full. Except as
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provided herein for Termination Upon
a Change in Control, no other payments shall be made, or benefits
provided, by Sterling under this Agreement except for vested stock
options and other incentive awards held by the Executive pursuant
to the terms of the grant(s) thereof, vested benefits payable under
the terms of the nonqualified deferred compensation plans then in
effect in which Executive participates, and any other vested
benefits that the Executive is entitled to receive under the terms
of employee benefit programs maintained by Sterling or its
subsidiaries for its employees.
(c) Payments for Termination Upon a
Change in Control. Within twenty days of the Executive’s
Termination Upon a Change in Control, Sterling shall pay to the
Executive in a single payment in cash and/or provide to the
Executive, as applicable, the following:
(i) the Executive’s earned but
unpaid Base Salary as of the date of Termination of
Employment;
(ii) the benefits, if any, to which
the Executive is entitled as a former employee under the employee
benefit programs and compensation plans and programs maintained for
the benefit of Sterling’s officers and employees;
(iii) an amount equal to two times
Executive’s Annual Compensation; and
(iv) Options and Other Incentive
Awards. All stock options and other incentive awards held by the
Executive shall become fully vested and exercisable.
(d) Adjustment for Taxes. In the
event that either Sterling’s independent public accountants
or the Internal Revenue Service determines that any payment,
coverage, benefit or benefit acceleration provided to Executive,
whether specifically provided for in this Agreement or otherwise,
is subject to the excise tax imposed by Section 4999 (or any
successor provision) (“Section 4999”) of the Internal
Revenue Code of 1986, as amended (the “Code”),
Sterling, within 30 days thereafter, shall pay to Executive, in
addition to any other payment or benefit due and owing hereunder,
an amount determined by multiplying the rate of excise tax then
imposed by Section 4999 by the amount of the “excess
parachute payment” (as defined in Section 280G of the
Code) received by Executive (determined without regard to any
payments made to the Executive pursuant to this paragraph) and
dividing the product so obtained by the amount obtained by
subtracting the aggregate local, state and Federal income tax rate
applicable to the receipt by Executive of the “excess
parachute payment” (taking into account the deductibility for
Federal income tax purposes of the payment of state and local
income taxes thereon) from the amount obtained by subtracting from
1.00
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the rate of excise tax then imposed
by Section 4999 of the Code, it being Sterling’s
intention that the Executive’s net after tax position be
identical to that which would have obtained had Sections 280G and
4999 not been part of the Code.
(e) If the actual excise tax imposed
by Section 4999 of the Code is less than the amount that was
taken into account in determining the adjustment for taxes under
Section 4(d), Executive shall repay at the time that the
amount of the reduced excise tax is finally determined the portion
of the adjustment for taxes under Section 4(d) attributable to
that reduction (plus the portion attributable to the excise tax,
FICA tax and federal, state and local income tax imposed on the
portion of the adjustment being repaid by Executive, to the extent
the repayment results in a reduction in or refund of excise tax,
FICA tax or federal, state or local income tax), plus interest on
the amount of the repayment at the rate provided in
Section 1274(b)(2)(B) of the Code. If the actual excise tax
imposed is more than the amount that was taken into account in
determining the amount of the adjustment under Section 4(d),
Sterling shall make an additional payment in respect of such excess
(plus interest at the rate provided in Section 1274(b)(2)(B)
of the Code) at the time that the amount of the excess is finally
determined.
(f) In the event that, on or after
the occurrence of a Change in Control, Sterling fails to make any
payment or provide any benefit to Executive arising out of or
relating in any way to this Agreement or to the Executive’s
employment by Sterling (collectively, “Employment
Rights”), then Sterling shall pay to the Executive and
reimburse the Executive for the Executive’s full costs
(including, without limitation, the fees and expenses of the
Executive’s attorneys and court and related costs) of
enforcing the Executive’s Employment Rights. In addition, if
the enforceability of this Agreement or the payment of any benefit
to the Executive hereunder is disputed by Sterling on or after the
occurrence of a Change in Control, then the Term of this Agreement
shall be extended for the period of the dispute in the event of a
final judicial determination that the Executive is entitled to at
least fifty percent (in dollar amount) of the benefits that
Executive claimed from, and that were disputed by,
Sterling.
(g) Definitions. For purposes of
this Agreement, the following terms have the following
meanings:
(i) Executive’s “Annual
Compensation” shall include (A) the greater of:
(1) the total of Executive’s Base Salary and any target
bonus for the calendar year in which the
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termination occurs (if established
before the termination), or (2) Executive’s Base Salary
and any actual bonus for the prior calendar year (annualized if
Executive was not employed by Sterling for the entire previous
calendar year) or (3) Executive’s Base Salary and any
actual bonus for the calendar year prior to the Change in Control
(annualized if Executive was not employed by Sterling for the
entire previous calendar year); and (B) the amount of the
contributions made or anticipated to have been made by Sterling on
Executive’s behalf to Sterling’s benefit plans for the
calendar year in which the termination occurs, including without
limitation contributions to pension and welfare plans maintained by
Sterling for its employees. Annual Compensation shall not include
the value of any stock options or restricted stock granted to
Executive.
(ii) A “Change in
Control” shall be deemed to have occurred at such time as the
occurrence of a “change in ownership,” a “change
in effective control” or a “change in the ownership of
a substantial portion of the assets” of a corporation, as
determined in accordance with this
Section 4(g)(ii).
(A) A “change in
ownership” of Sterling shall occur on the date on which any
one person, or more than one person acting as a group, acquires
ownership of stock of Sterling that, together with stock held by
such person or group, constitutes more than 50% of the total fair
market value or total voting power of the stock of Sterling, as
determined in accordance with Treas. Reg. §1.409A-3(i)(5)(v).
If a person or group is considered either to own more than 50% of
the total fair market value or total voting power of the stock of
Sterling, or to have effective control of such corporation within
the meaning of part (B) of this Section, and such person or
group acquires additional stock of such corporation, the
acquisition of additional stock by such person or group shall not
be considered to cause a “change in the ownership” of
Sterling.
(B) A “change in effective
control” of Sterling shall occur only on either of the
following dates:
(1) The date on which any one
person, or more than one person acting as a group, acquires (or has
acquired during the 12-month period ending on the date of the most
recent acquisition by such person or persons) ownership of stock of
Sterling possessing 30% or more of the total voting power of the
stock of Sterling, as determined in accordance with Treas. Reg.
§1.409A-3(i)(5)(vi). If a person or group is considered to
possess 30% or more of the total voting power of th