EXHIBIT 10.1

EXECUTIVE EMPLOYMENT AGREEMENT

This Employment Agreement (“ Agreement ”) is entered into effective as of January 1, 2008, between Cascade Bancorp (“ Bancorp ”) and Bank of the Cascades (“ Bank ”) (sometimes together referred to as the “ Company ”) and Patricia Moss (“ Executive ”).

RECITALS

The Company desires to continue to employ and retain the unique experience, abilities, and services of Executive, and Executive desires to continue to be employed by the Company, subject to the terms and conditions of this Agreement.

AGREEMENT

For the purposes of this Agreement the following terms have the following meanings:

(a)        Any Person acting individually or as a “group” for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) becomes the “beneficial owner” (as defined in Rule 13d(3) of the Exchange Act), directly or indirectly, of securities of Bancorp representing fifty percent (50%) or more of the total voting power represented by Bancorp’s then outstanding voting securities;

(b)        The consummation of the sale, liquidation or disposition by Bancorp of all or substantially all of Bancorp’s or the Bank’s assets; or

(c)        The consummation of a share exchange, merger or consolidation of Bancorp or the Bank with any other corporation, other than a share exchange, merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such share exchange, merger or consolidation; or

(d)        A majority of the Board of Directors of Bancorp is removed from office by a vote of Bancorp’s shareholders against the recommendation of the then incumbent Board or a majority of the directors elected at any Annual or Special Meeting of shareholders are not individuals nominated by Bancorp’s then incumbent Board of Directors.

 

 

 

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1.2       “ Confidential Information ” means all information related to the Company that is received or accessed by Executive, including but not limited to business models, customer and supplier lists, marketing plans, financial and technical information, trade secrets, policies, employee information, know-how, ideas, designs, drawings, specifications, techniques, programs, systems, processes, and computer software. Notwithstanding the foregoing, Confidential Information shall exclude information that:

(a)        is generally known by or available to the public other than as a result of a disclosure by Executive;

(b)        was received by Executive from another person on a non-confidential basis other than a Representative of the Company, but only if such source was not known by Executive to be bound by any contractual or fiduciary obligation to maintain the confidentiality of such information; or

(c)        was independently developed by Executive without using Confidential Information.

1.3       “ Creative Work ” means any work that Executive creates within the scope of Executive’s employment by the Company.

1.5       “ Disability ” means that Executive: (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months; or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under the Company’s long term disability plan covering employees of the Company. Medical determination of Disability may be made by either the Social Security Administration or by the provider of the long term disability plan covering employees of Bancorp provided that the definition of “disability” applied under such plan complies with the requirements of the preceding sentence. Upon the request of the Plan Administrator, the employee must submit proof to the Plan Administrator of the Social Security Administration’s or the provider’s determination.

 

 

 

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(a)        Without Executive’s express written consent, which consent may be withheld in Executive’s sole discretion; (i) any change of duties materially inconsistent with Executive’s position immediately prior to a Change in Control; or (ii) a change in Executive’s reporting responsibilities as in effect immediately prior to a Change in Control; or (iii) any removal of Executive from or any failure to reelect or reappoint Executive to Executive’s position immediately prior to a Change in Control, except (a) in connection with Executive’s termination pursuant to Section 12.1(d), (e), or (f), or (b) upon Executive’s retirement; or

(b)        A reduction in Executive’s aggregate base salary or a reduction or elimination of any compensation or benefit plan benefiting Executive, which reduction or elimination does not generally apply to substantially all similarly situated employees of the Company; or

(c)        The relocation of the office at which Executive regularly performs Executive’s duties for the Company (“ Executive’s Office ”) which relocation is more than 30 miles outside the city limits of Bend, Oregon, and which relocation of Executive’s Office is not consented to by Executive, which consent may be withheld in Executive’s sole discretion.

1.7       “ Person ” means any individual, corporation, partnership, trust, association, joint venture, pool, syndicate, unincorporated organization, joint-stock company or similar organization or group acting in concert, but does not include any employee stock ownership plan or similar employee benefit plan of the Company. A “Person” shall be deemed to be a beneficial owner as that term is used in Rule 13d(3) under the Securities Exchange Act of 1934.

1.8       “ Representatives ” means directors, officers, managers, employees, subcontractors, agents, consultants, advisors, and other authorized representatives.

1.9       “ Restricted Period ” means the period beginning on the date of this Agreement and ending 18 months after the termination of Executive’s employment relationship with the Company.

1.10     “ Restrictions ” means the restrictions set forth in Sections 6, 7, 8, and 9 of this Agreement.

2.1       Office. The Company will employ and Executive will serve in the office of Chief Executive Officer and President of Bancorp and Chief Executive Officer of Bank.

2.2       Duties and Authority. To the extent not inconsistent with the Company’s and Bank’s bylaws, Executive will perform such duties and exercise such authority as may be assigned or granted to Executive from time to time by the board of directors. Executive’s duties may extend to any subsidiary or affiliate of the Company.

 

 

 

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(a)        Executive will comply with the reasonable instructions, policies, and rules that the Company may establish from time to time.

(b)        Executive will devote Executive’s full working time and attention to the performance of Executive’s duties under this Agreement; provided, however, Executive may also engage in (a) any activities approved by the Board, (b) service on two (2) public company boards of directors of companies other than the Company and its subsidiaries or affiliates, which companies are approved by Bancorp’s Board, and (c) any civic, community, charitable, continuing education and passive investment activities that do not materially interfere with Executive’s duties under this Section 2.3.

(i)         Executive will discharge Executive’s duties in good faith and exercise her reasonable best efforts to perform the duties assigned to Executive pursuant to this Agreement.

2.4       Relocation. The Company may only relocate Executive’s Office without the prior written consent of Executive to a location that is not more than 30 miles outside the city limits of Bend, Oregon.

2.5       Director. Executive will serve as a director of Bancorp and the Bank until Executive’s term as a director expires or is terminated. While Executive serves as a director she shall not be entitled to additional compensation for such service. As long as Executive qualifies under applicable Company guidelines, the Company shall exercise its best efforts to cause Executive to be nominated as a director of Bancorp and the Bank and shall list Executive in Bancorp’s proxy statement and proxy card.

3.1       Base Salary. The Company will pay Executive an annual base salary in such amount as the board of directors may determine in its sole discretion; provided, however, in no event shall such salary be less than $380,000.

3.2       Bonus. The Company shall pay Executive a bonus at such times and in such amounts as the board of directors may approve pursuant to bonus policies adopted by the board in its sole discretion.

3.3       Vacation. Executive shall be entitled to no less than seven (7) weeks of paid vacation per year to be used in accordance with the terms and conditions of the Company’s employment policies.

3.4       Other Benefits. The Company shall provide Executive with D&O Insurance coverage during the term of this Agreement, which policy shall be customary for the size and operation of the Company in the industry in which the Company operates. Executive will be entitled to receive or participate in all employee benefits that the Company may make available from time to time to its other executive officers, including but not limited to any insurance, medical

 

 

 

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reimbursement, equity and other forms of incentive compensation, profit sharing and retirement plans.

3.5       Facilities. The Company will provide Executive with a private office, secretarial services, and any other services, supplies, and facilities that are reasonably required for the performance of Executive’s duties under this Agreement.

3.6       Expenses. The Company will reimburse Executive for reasonable expenses incurred by Executive in connection with the performance of Executive’s services, upon Executive’s compliance with the reasonable expense reimbursement instructions, policies, and rules that the Company may establish from time to time.

3.7       Existing Benefit Agreements. In addition to the benefits described in Section 3.4 above, Executive and the Company are currently parties to the following additional benefit agreements, the benefits under which shall be governed solely by the terms of those agreements:

 

4.1       No Conflicts. The signing and delivery of this Agreement by Executive and the performance by Executive of all of Executive’s obligations under this Agreement will not:

(a)        breach any agreement to which Executive is a party, or give any person the right to accelerate any obligation of Executive;

(c)        require the consent, authorization, approval of any person, including but not limited to any governmental body.

4.2       Employment Policies. Executive has received, read, and understands the instructions, policies, and rules that apply to all employees of the Company as set forth in the Cascade Bancorp – Employment Policies, and understands that the Company may revise the Cascade Bancorp – Employment Policies at any time in its sole discretion.

4.3       At-Will Employment. Executive and the Company agree that Executive’s employment with the Company is and shall continue to be “at-will” employment. Executive and the Company acknowledge that this employment relationship may be terminated at any time, upon written notice to the other party, with or without good cause or for any or no cause, at the option either of Company or Executive. As described in this Agreement, however, Executive may be

 

 

 

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entitled to certain benefits depending upon the circumstances of Executive’s termination of employment.

5.1       Work Made for Hire. The Creative Work is a work made for hire for copyright purposes to the extent it qualifies as such under applicable law.

5.2       Assignment. Executive assigns to the Company Executive’s entire interest in the Creative Work, including but not limited to all copyrights, patent rights, trade secret rights, trademark rights, and other intellectual and proprietary rights in the Creative Work.

5.3       Perfection. At the request and expense of the Company, Executive will sign such documents and take such actions that the Company deems reasonably necessary to perfect, protect, and evidence the Company’s rights in the Creative Work.

(i)         Executive will at no time use Confidential Information for any purpose without the Company’s specific prior authorization, except Executive may use Confidential Information to perform Executive’s duties as an employee of the Company and

(ii)        Executive will at no time disclose Confidential Information to any person without the Company’s specific prior authorization, except Executive may disclose Confidential Information:

(2)        in accordance with a judicial or other governmental order, or subpoena but only if Executive promptly notifies the Company of the order and complies with any applicable protective or similar order; or

(3)        pursuant to the Company’s disclosure policies or as required under the rules and regulations of the Securities Exchange Commission or other applicable law or upon advice of the Company’s legal counsel.

(i)         promptly notify the Company of any unauthorized use or disclosure of Confidential Information, or any other breach of these Nondisclosure Provisions; and

(ii)        assist the Company in every reasonable way to retrieve any Confidential Information that was used or disclosed by Executive or Executive’s Representatives

 

 

 

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without the Company’s specific prior written authorization and to mitigate the harm caused by the unauthorized use or disclosure.

(c)         Return of Confidential Information . Upon the Company’s request or the termination of Executive’s employment relationship with the Company, Executive will promptly return to the Company all materials furnished by the Company containing Confidential Information, together with all copies and summaries of Confidential Information in the possession or under the control of Executive.

6.2       No Transfer. These Nondisclosure Provisions do not transfer any ownership rights to any Confidential Information.

During the Restricted Period, Executive will not directly or indirectly advise, invest in, own, manage, operate, control, be employed by, provide services to, lend money to, guarantee any obligation of, lend Executive’s name to, or otherwise assist any person engaged in or planning to be engaged in any business whose products, services, or activities compete or will compete in whole or in part with the Company’s products, services, or activities in Oregon or Idaho provided that Executive may own up to 1% of any class of securities of any issuer if the securities are listed on a national or regional securities exchange or have been registered under Section 12(g) of the Exchange Act.

(a)        solicit any employee of the Company to become an employee or independent contractor of Executive, any subsequent employer of Executive, or any other person; or

(b)        suggest to an employee of the Company that the employee should reduce or terminate the employee’s relationship with the Company.

(a)        solicit any customer of the Company to become a customer of Executive, any subsequent employer of Executive, or any other person;

(b)        suggest to a business relation of the Company that the business relation should reduce or terminate the business relation’s business or relationship with the Company; or

(c)        transact business of a nature similar to the Company’s business with customers of the Company.

 

 

 

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During the Restricted Period, Executive will not – for Executive or on behalf of any person – hire as an employee or engage as an independen