Exhibit 10.6
EMPLOYMENT
AGREEMENT
This Employment Agreement (the
“Agreement”) is made and entered into by and between
Sterling Financial Corporation, a Washington corporation
(“Sterling”) and Donn C. Costa (“Employee”)
as of February 12, 2006. Because of Employee’s
importance to Sterling and the value to be derived from
Employee’s employment, Sterling and Employee desire to set
forth certain terms and conditions relating to Employee’s
employment as an inducement for Employee continuing his
employment.
Therefore, the parties agree as
follows:
1. Employment . Sterling
agrees to employ Employee, and Employee agrees to and does hereby
accept such employment on the terms in this Agreement.
2. Term . This Agreement
shall commence at the time the merger between Sterling Financial
Corporation and Lynnwood Financial Group, Inc., becomes effective
and shall continue until December 31, 2009; provided, however,
that the term hereof shall be automatically extended for two
separate and consecutive additional one year periods unless
Employer provides Employee notice that this Agreement will not be
extended on or prior to October 1, 2009 with respect to the
first one year extension, or on or prior to October 1, 2010,
with respect to the second one year extension.
3. Duties . Employee shall
perform such duties as Sterling may from time to time direct.
Employee shall initially have the title of Senior Vice President of
Golf Savings Bank with duties principally in the area of permanent
mortgage lending, but this may be changed from time to time as
Sterling may determine.
4. Compensation . During
Employee’s employment under this Agreement, Employee shall
receive as compensation for services rendered hereunder:
(a) Base Salary . Employee
shall be paid a base salary in the amount of Three Hundred Seventy
Thousand Dollars ($370,000.00), payable semi-monthly or in such
manner as is consistent with Sterling’s policy relating to
salaried employees.
(b) Deferred Compensation
Bonus . In consideration for entering into this Agreement,
Sterling shall contribute Three Hundred Thousand Dollars
($300,000.00) on behalf of Employee to the Sterling Savings Bank
Deferred Compensation Plan, which shall vest 25% per year over
four years as follows, so long as Employee remains employed
hereunder on the dates listed below:
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Vested Percentage
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December 31, 2006
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25
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%
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December 31, 2007
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50
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%
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December 31, 2008
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75
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%
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December 31, 2009
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100
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%
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(c) Discretionary Bonus .
Annual bonus(es), if any, shall be awarded to Employee in
accordance with the standard practices of Sterling for its
employees at the senior vice president level.
5. Other Benefits
.
(a) Employee Plans . Subject
to the respective eligibility requirements and other terms and
provisions of the applicable benefit or insurance plans (including
relevant waiting periods), Employee shall be enrolled as a
participant in all employee benefit plans (including retirement and
insurance plans) generally available to other executives of
Sterling, as the same may from time to time be adopted or amended.
Employee is eligible to participate in Sterling’s stock
option plan(s) then in effect subject to the terms and conditions
of such plan(s).
(b) Vacation . Employee shall
be entitled to twenty (20) business days of paid vacation each
year at the convenience of Sterling. Unused vacation shall not be
carried over from one year to the next unless otherwise approved by
Employer.
(c) Perquisites . Sterling
shall provide Employee with an automobile allowance comparable for
Sterling employees at the senior vice president level, and shall
reimburse Employee for all reasonable travel, entertainment or
other business expenses reasonably incurred by him in the
performance of his duties hereunder in accordance with the policies
for such reimbursement of similarly situated senior executives as
from time to time established by Sterling. Sterling shall also pay
the appropriate dues at the Members Club at Aldarra or a similar
organization approved by Sterling on the Employee’s behalf
until the earliest of the expiration of this Agreement or the
termination or resignation of Employee from employment with
Sterling. Employee shall also be entitled to receive such other
perquisites as Sterling may from time to time deem
appropriate.
6. Performance of Duties .
Employee agrees that during his employment with Sterling:
(a) Employee will faithfully perform the duties of such office
or offices as he may occupy, which duties shall be such as may be
assigned to him by Sterling; (b) Employee will devote to the
performance of his duties all such time and attention as Sterling
shall reasonably require, taking, however, from time to time such
reasonable vacations as are consistent with his duties and Sterling
policy; and (c) Employee will do nothing inconsistent with his
duties to Sterling.
7. Termination .
(a) Either Sterling or Employee may
terminate Employee’s employment at any time in their 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
Employee.
(b) Upon termination of employment,
Employee’s rights under all applicable employee pension
plans, stock option grants, incentive plans or employee benefit
plans, shall be
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determined under the terms of the
applicable plans and grants, except as otherwise provided in this
Agreement.
(c) If during the term of this
Agreement (i) Employee’s employment is terminated by
Sterling for any reason, other than for Cause, or
(ii) Employee resigns for Good Cause (as defined below), then
(but in no other circumstances), subject to and conditioned upon
compliance with 12 U.S.C. Section 1828(k) and FDIC Regulation
12 C.F.R. Part 359, Employee shall be entitled to receive, within
five business days after the effective date of such termination or
resignation, from Sterling or its successor, an amount equal to two
times Employee’s base salary, as provided in
Section 4(a).
(d) If Sterling elects to
discontinue Employee’s employment at the end of the term of
this Agreement, Sterling may elect to pay Employee an amount equal
to two times Employee’s base salary, as provided in
Section 4(a), in exchange for Employee’s agreement to be
bound by the non-compete provision of Section 10(b) for the
two-year Non-Compete Period defined therein. In the event Sterling
elects to not pay an amount equal to two times Employee’s
base salary, as provided in Section 4(a), Employee shall not
be subject to the non-compete provisions of
Section 10(b).
(e) If upon or within two years
after a Change in Control (as defined below)
(i) Employee’s employment is terminated by Sterling for
any reason, other than for Cause, or (ii) Employee resigns for
Good Cause (as defined below), then (but in no other
circumstances), subject to and conditioned upon compliance with 12
U.S.C. Section 1828(k) and FDIC Regulation 12 C.F.R. Part 359,
Employee shall be entitled to receive, within five business days
after the effective date of such termination or resignation, from
Sterling or its successor, an amount equal to two times
Employee’s base salary, as provided in Section 4(a). In
addition, upon such an event: all stock options held by Employee
shall become immediately vested and exercisable notwithstanding any
provisions in the grant of such options regarding vesting, and the
lapse of the restrictions on Employee’s restricted stock, if
any, shall automatically be accelerated; provided that the
provision in this Section 7(e) shall be effective only if
Sterling has taken action approving such vesting and/or
acceleration; and provided further that Sterling may exclude any
particular grant(s) of stock options or restricted stock from the
vesting and acceleration provided for in this subsection, either at
the time it approves such vesting and/or acceleration, or in
connection with making any particular grant of stock options or
restricted stock.
(f) If Employee becomes entitled to
the payments and equity acceleration described in
Section 7(c), (d) or (e) (collectively, the
“Severance Payments”), and if any of the Severance
Payments constitute a “parachute payment” under
Section 280G, at the election of Employee, (i) such
payments or benefits shall be payable or provided to Employee over
the minimum period necessary to reduce the present value of such
payments or benefits to an amount which is one dollar ($1.00) less
than three (3) times Employee’s “base
amount” as defined under §280G(b)(3) of the Internal
Revenue Code of 1986, as amended or any successor statute then in
effect (the “Code”) or (ii) Employee shall receive
a sum equal to 2.99 times Employee’s “base
amount,” within the meaning of §280G(b)(3) of the Code,
as the sole benefit payable under this Section 7.
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8. Continuation of Medical
Insurance . If Employee’s employment by Sterling
terminates for any reason (including early retirement) other than
gross misconduct, Employee shall be entitled to continue to
participate in Sterling’s self-funded group medical plan at
Employer’s expense, to the extent provided in the plan and
under the Consolidated Omnibus Budget Reconciliation Act of 1985
(COBRA).
9. Disability or Death . If
Employee should die or become disabled at any time during his or
her employment hereunder, this Agreement shall terminate and
neither Employee nor anyone claiming by, through or under him or
her shall be entitled to any further compensation or other sum
under this Agreement (other than payments made by insurers under
policies of life and disability insurance and any sums that may
become available under any employee benefit plan); provided however
that in such event, the Deferred Compensation Bonus described in
Section 4(b) hereof shall become fully vested.
10. Confidentiality;
Non-Competition.
(a) Confidential Information
. Employee recognizes and acknowledges that all information
pertaining to the affairs, business, clients, or customers of
Sterling or any of its subsidiaries (any or all of such entities
being hereinafter referred to as the “Business”), as
such information may exist from time to time, other than
information that Sterling has previously made publicly available or
that is in the public domain, is confidential information and is a
unique and valuable asset of the Business, access to and knowledge
of which are essential to the performance of Employee’s
duties under this Agreement. Employee shall not, except to the
extent reasonably necessary in the performance of his duties under
this Agreement, divulge to any person, firm, association,
corporation, governmental agency or other entity any information
concerning the affairs, business, clients, or customers of the
Business (except such information as is required by law to be
divulged to a government agency or pursuant to lawful process), or
make use of any such information for his own purposes or for the
benefit of any person, firm, association, corporation or other
entity (except the Business) and shall use his reasonable best
efforts to prevent the disclosure of any such information by
others. All records, memoranda, letters, books, papers, reports,
accountings, experience or other data, and other records and
documents relating to the Business, whether made by Employee or
otherwise coming into his possession, are confidential information
and are, shall be, and shall remain the property of the Business.
No copies thereof shall be made that are not retained by the
Business, and the Employee agrees, on termination of his employment
or on demand of Sterling, to deliver the same to
Sterling.
(b) Non-Compete . Except as
provided under Section 7(d), for a period of two years
following Employee’s termination of employment (the
“Non-Compete Period”), Employee shall not, without
express prior written approval of Sterling’s Board, directly
or indirectly own or hold any proprietary interest in, or be
employed by or receive remuneration from, any person, corporation,
partnership, sole proprietorship or other entity engaged in
competition with Sterling or any of its subsidiaries (a
“Competitor”), other than severance-type or
retirement-type benefits from entities constituting prior employers
of Employee. During the Non-Compete Period, the Employee also
agrees that he will not solicit for the account of any Competitor,
any customer or
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client of Sterling or its
subsidiaries. Employee also agrees not to act on behalf of any
Competitor to interfere with the relationship between Sterling or
its subsidiaries and their employees during the Non-Compete Period.
In addition, if Employee obtains non-competitive employment during
the Non-Compete Period, for such period Employee agrees not to
solicit employees of Sterling or its subsidiaries for new
employment without the prior written consent of Sterling. For
purposes of this section, (i) the term “proprietary
interest” means legal or equitable ownership, whether through
stockholdings or otherwise, of greater than a 20% equity interest
in a business, firm or entity, and (ii) an entity shall be
considered to be “engaged in competition” if such
entity is, or is a holding company for, a bank, savings and loan
association or other financial services business engaged in a
business that competes with Sterling in the States of Washington,
Idaho, Montana or Oregon within 35 miles of a branch or office of
Sterling or any of its subsidiaries. Employee acknowledges the
receipt and sufficiency of specific con