EXHIBIT
10.15
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED
AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into as of the 16th day of January, 2007 by and
between North Bay Bancorp, a California corporation (the
"Company"), The Vintage Bank, a California corporation (the
“Bank”), and John A. Nerland (the
"Employee").
BACKGROUND
WHEREAS, the
Employee possesses valuable knowledge and skills that have
contributed to the operation of the Company and its
subsidiaries;
WHEREAS, the
Company desires to continue Employee’s employment and the
Employee is willing to continue to be employed by the
Company;
WHEREAS, the
Company and the Employee desire to enter into this Agreement upon
the terms and subject to the conditions hereinafter set forth in
place and instead of that certain Employment Agreement entered into
between the Company and Employee as of June ___, 2006.
WHEREAS, the
Company is currently negotiating a definitive agreement (the
“Merger Agreement”) with Umpqua Holdings Corporation
(“Umpqua”) pursuant to which the Company would merge
with and into Umpqua (the “Merger”).
WHEREAS, Umpqua
has expressed an unwillingness to enter into the Merger Agreement,
unless the Employment Agreement is amended to assure Umpqua that
Employee will continue as an employee, as needed, through the
post-merger integration period.
WHEREAS,
Employee desires to realize the benefit under the Employment
Agreement that would result from the Merger and therefore is
willing to amend and restate the Employment Agreement as set forth
herein.
NOW, THEREFORE,
in consideration of the premises, agreements and mutual covenants
set forth herein, the parties hereto hereby agree as
follows:
1.
Employment
1.1
General
.
The Company
hereby employs the Employee as Executive Vice President and the
Bank hereby employs Employee as Senior Executive Vice President and
Chief Credit Officer, on the terms and subject to the conditions
contained in this Agreement, and the Employee hereby accepts such
employment on the terms and subject to the conditions contained in
this Agreement.
1.2
Duties of
Employee . During the Term of
this Agreement, the Employee shall diligently perform all duties
and responsibilities reasonably accorded to and expected of an
Executive Vice President of the Company and a Senior Executive Vice
President and Chief Credit Officer of the Bank, and as may be
assigned to him by the Board of Directors of the Company (the
"Board of Directors"), and shall exercise such power and authority
as may from time to time be delegated to him thereby. The
Employee shall devote his full business time and attention to the
business and affairs of the Company as necessary to perform his
duties and responsibilities hereunder, render such services to the
best of his ability and use his best efforts to promote the
interests of the Company and shall not, without the consent of the
Board of Directors, render to others services of any kind for
compensation, or engage in any other business activity that would
interfere with the performance of his duties under this Agreement.
The Employee shall faithfully adhere to, execute and fulfill
all policies established by the Company.
1.3
Place of
Performance . Except for required travel
for the Company's business, the Employee shall perform his duties
and responsibilities from the offices of the Company and its
subsidiaries.
2.
Term
.
Subject
to the provisions of Section 4 of this Agreement, the parties
acknowledge that the term of Employee's employment under this
Agreement shall commence on June 1, 2006 (the "Effective Date") and
continue hereunder until the third anniversary of the Effective
Date (the "Initial Term"). Unless the Employee shall have
notified the Company, or the Company shall have notified the
Employee, not less than sixty (60) days prior to the expiration of
the Initial Term of such party's election not to continue the Term
of this Agreement, upon expiration of the Initial Term, the
Employee's employment hereunder shall continue until the fourth
anniversary of the Effective Date and thereafter shall continue on
a year-to-year basis unless either party notifies the other, not
less than sixty (60) days prior to expiration of the then current
Renewal Term, of such party’s election not to continue the
Term of this Agreement (each such additional one-year period, a
"Renewal Term"; the Initial Term and any Renewal Term are
collectively referred to hereinafter as the “Term”).
The election by the Company not to continue the Term of
Employee's employment for a Renewal Term shall not be deemed a
termination without cause pursuant to Section 4.1(b) hereof.
3.
Compensation
.
3.1
Salary
.
During
the Term of the Employee's employment hereunder, the Employee shall
receive an annual salary of One Hundred Seventy Five Thousand
Dollars ($175,000.00) payable at such times and in such manner as
the Company's normal payroll schedule may from time to time
provide. Employee’s annual salary shall be subject to
annual adjustment as may be determined by the Board of Directors
56in its sole and absolute discretion.
3.2
Incentive
Compensation . The Employee shall be
eligible to receive as additional compensation each year during his
employment hereunder, as determined by the Board of Directors or an
applicable committee thereof, in accordance with the terms of an
incentive compensation plan adopted annually by the Board of
Directors (“Incentive Compensation”). Such
Incentive Compensation (if any) to be paid at a time or times and
in a manner consistent with the Company's normal practices for the
payment of bonuses, or as the Board of Directors or applicable
committee may otherwise determine.
3.3
Benefits
.
During his employment
hereunder, the Employee shall be entitled to participate in all
plans adopted for the general benefit of the Company's management
employees, including medical plans and 401(k) plan, to the extent
that the Employee is and remains eligible to participate therein
and subject to the eligibility provisions of such plans in effect
from time to time. In the event Employee’s employment
hereunder is terminated and the Employee is entitled to
compensation pursuant to Section 4.4(b), the Employee shall be
entitled to continue to participate in the Company’s medical
plan until the earlier of (a) expiration of the applicable payment
period set forth in Section 4.4(b)(i) or (b) the date Employee
obtains new employment.
3.4
Paid Time
Off . During each calendar
year of his employment hereunder, the Employee shall be entitled to
paid time off in accordance with the Company’s paid time off
policy set forth in the Company’s Employee Handbook as in
effect from time to time. Employee may be absent
from his employment for paid time off only at such time as the
Company’s Chief Executive Officer shall determine from time
to time unless such absence is on account of physical or mental
illness or injury. Subject to the right of the Company to
terminate the Employee’s employment hereunder as provided in
Section 4.1(c), the Employee shall be entitled to paid time off
(including paid catastrophic time off) on account of such physical
or mental illness or injury in accordance with the Company’s
Employee Handbook as in effect from time to time.
3.5
Withholding
.
Notwithstanding any
provision in this Agreement to the contrary, all payments required
to be made by the Company to the Employee hereunder or otherwise
arising out of, related or incidental to or in connection with the
Employee's employment hereunder shall be subject to withholding of
such amounts relating to taxes as the Company may reasonably
determine it should withhold pursuant to any applicable law or
regulation.
3.6
Reimbursement of
Expenses . Subject to the
Company’s reimbursement policies in effect from time to time,
the Company agrees to reimburse the Employee for all reasonable
business travel and other out-of-pocket expenses incurred by the
Employee in the discharge of his duties hereunder. All reimbursable
expenses shall be appropriately documented in reasonable detail by
the Employee upon submission of any request for reimbursement, and
in a format and manner consistent with the Company's expense
reporting policy, as well as applicable federal and state tax
record keeping requirements.
3.7
Automobile
.
The Company
will pay to Employee an automobile allowance in the amount of seven
hundred fifty dollars ($750) per month. The Employee shall be
responsible for insurance and maintenance costs associated with
such automobile’s operation. Employee shall procure and
maintain an automobile liability insurance policy on the
automobile, with coverage including Employee for at least a minimum
of $300,000 for bodily injury or death to any one person in any one
accident, and $100,000 for property damage in any one accident.
The Employer shall be named as an additional insured and
Employee shall provide Employer copies of policies evidencing
insurance and Employer’s inclusion as an additional
insured.
3.8
Absence
Policy . Employee shall abide
by the Company’s Absence Policy as in effect from time to
time during the Term of this Agreement.
4.
Termination
4.1
By
Company .
(a)
With Cause . Notwithstanding any provision in this
Agreement to the contrary, the Employee's employment hereunder may
be terminated by the Company at any time for "Cause," and such
termination shall be effective immediately upon written notice to
the Employee. For purposes of this Agreement, "Cause" for the
termination of the Employee's employment hereunder shall be deemed
to exist if, in the reasonable judgment of the Board of Directors:
(i) the Employee commits fraud, theft, embezzlement or other
material act of dishonesty against the Company, or any subsidiary
or affiliate thereof; (ii) the Employee is convicted of a felony or
a misdemeanor which may be reasonably interpreted to be
harmful to the Company’s reputation; (iii) the Employee
compromises trade secrets or other proprietary information of the
Company, or any subsidiary or affiliate thereof; (iv) the Employee
breaches any non-solicitation agreement with the Company, or any
subsidiary or affiliate thereof; (v) the Employee breaches any of
the terms of this Agreement (other than those referenced in clauses
(iii) and (iv) of this Section 4.1(a)) and fails to cure such
breach within ten (10) days after the receipt of written notice of
such breach from the Company; (vi) the Employee engages in any
grossly negligent act or willful misconduct that causes, or could
be reasonably expected to cause, harm to the business, operations
or reputation of the Company, or any subsidiary or affiliate
thereof; (vii) the Employee breaches any fiduciary duty to the
Company; or (viii) the Company, or any subsidiary or affiliate
thereof, is ordered to terminate this Agreement by any governmental
regulatory agency with supervisory authority over the Company, or
any subsidiary or affiliate thereof.
(b)
Without Cause . The Company may at any time, in its
sole and absolute discretion, terminate the employment of the
Employee hereunder without Cause, or otherwise without any cause,
reason or justification, provided that the Company provides to the
Employee written notice (the "Termination Notice") of such
termination. In the event of any such termination by the
Company, the Employee's employment with the Company shall cease and
terminate on the date specified in the Termination Notice.
(c)
For Disability of the Employee . If, as a result of
physical or mental illness or injury, the Employee shall have been
unable, in the reasonable judgment of the Board
of Directors,
to perform the essential functions of his position on a full-time
basis for a period of sixty (60) consecutive days, or for a total
of ninety (90) days in any twelve-month period (a "Disability"),
then thirty (30) days after written notice to the Employee (which
notice may be given before or after the end of the aforementioned
periods, but which shall not be effective earlier than the last day
of the applicable period), the Company may terminate the
Employee’s employment hereunder if the Employee is unable to
resume his full-time duties at the conclusion of such notice
period.
4.2
Death of
the Employee . This Agreement shall
immediately cease and terminate upon the death of
Employee.
4.3
Termination by
Employee . The Employee may
terminate his employment under this Agreement upon not less than
ninety (90) days prior written notice to the Company. Upon
learning that the Employee is terminating his employment under this
Agreement, the Company may, in its sole discretion but subject to
its other obligations under this Agreement, relieve Employee of his
duties under this Employment Agreement, and assign Employee other
reasonable duties and responsibilities to be performed until the
termination becomes effective.
4.4
Compensation Upon Early
Termination.
(a)
As a Result
of Death, Cause or Resignation . If the Employee’s
employment under this Agreement is terminated prior to the
scheduled expiration of the Term by reason of his death,
termination by the Company for Cause or resignation by the
Employee, the Employee shall be entitled to be paid solely (i) the
Employee's salary then in effect through the effective date of
termination, (ii) any accrued paid time off pursuant to Section
3.4, (iii) any amounts due pursuant to Section 3.6, (iv) those
benefits, if any, that have vested by operation of state or federal
law or under any written term of a plan (“Vested
Benefits”), and (v) health care coverage continuation rights
under the Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA Rights”), and the Company shall have no further
liability or other obligation of any kind whatsoever to the
Employee. In the case of termination as a result of the death
of Employee, any amounts due pursuant to this Section 4.4(a) shall
be paid to the Employee's estate, heirs (at law), devisees,
legatees or other proper and legally entitled descendants, or the
personal representative, executor, administrator or other proper
legal representative on behalf of such descendants.
(b)
By the
Company other than for Cause . Except as otherwise
expressly provided in Section 4.4(d), if, prior to the scheduled
expiration of the Term, the Company terminates the Employee’s
employment without Cause, the Employee shall be entitled to receive
and be paid solely (i) the Employee's salary then in effect until
the expiration of six (6) months following the effective date of
the termination of Employee's employment payable over such period
at the Company's regular and customary intervals for the payment of
salaries as in effect from time to time if Employee has been
employed by the Company for less than five (5) years; or the
Employee's salary then in effect until the expiration of twelve
(12) months following the effective date of the termination of
Employee's employment payable over such period at the Company's
regular and customary intervals for the payment of salaries as in
effect
from time to
time if Employee has been employed by the Company for more than
five (5) years but less than ten (10) years; or the Employee's
salary then in effect until the expiration of eighteen (18) months
following the effective date of the termination of Employee's
employment payable over such period at the Company's regular and
customary intervals for the payment of salaries as in effect from
time to time if Employee has been employed by the Company for more
than ten (10) years (“Severance Pay”), (ii) a pro rata
portion of Employee’s Incentive Compensation, if any during
the applicable period Employee was employed by the Company (which
portion of the Incentive Compensation shall be reasonably
determined by the Board of Directors as of the date of termination
of the Term and paid when otherwise payable pursuant to Section
3.2, (iii) any accrued paid time off pursuant to Section 3.4,
(iv) any amounts due pursuant to Section 3.6, (v) any Vested
Benefits, and (vi) any COBRA Rights, and the Company shall have no
further liability or other obligation of any kind whatsoever to the
Employee. The payment of Severance Pay shall constitute
liquidated damages in lieu of any and all claims by the Employee
against the Company, shall be in full and complete satisfaction of
any and all rights which the Employee may enjoy hereunder, and
shall constitute consideration for a full and unconditional release
of any and all liability of the Company or any of its shareholders,
benefit plans, affiliate companies, subsidiaries, and the
directors, officers, employees, trustees and agents of such
entities and their successors or assigns, arising out of this
Agreement or out of the employment relationship between the
Employee and the Company (in the form of Exhibit A, hereafter the
“Release”). Payment of the Severance Pay is
expressly conditioned upon receipt by the Company of the Release
executed by the Employee. For the avoidance of doubt, in the
event of termination of employment by the Company without Cause
Employee shall not be entitled to participate in any severance pay
plan made generally available to other employees of the Company as
in effect from time to time.
(c)
Disability
. Upon
termination of Employee’s employment hereunder pursuant to
Section 4.1(c) as a result of Employee’s Disability, Employee
shall be entitled to receive and be paid solely (i) the
Employee’s salary then in effect for a period of sixty (60)
days following termination of employment (reduced by the amount of
any state disability insurance benefits and workers compensation
benefits he receives during that period) payable at the
Company’s regular and customary intervals for the payment of
salaries as in effect from time to time, (ii) any accrued paid time
off pursuant to Section 3.4, (iii) any amounts due pursuant
to Section 3.6, (iv) any Vested Benefits, and (v) any COBRA rights.
Following expiration of the sixty (60) day period, the
Employee shall be entitled to receive and be paid solely a salary
at a rate commensurate with the benefit Employee is eligible to
receive under any long term disability insurance plan maintained by
the Company for a period of one hundred twenty (120) days or until
Employee’s benefits under any such plan commences, whichever
period is shorter, payable over such period of time at the
Company’s regular and customary intervals for the payment of
salaries as in effect from time to time, and the Company shall have
no further liability or other obligation of any kind whatsoever to
the Employee. For the avoidance of doubt, Employee, except for
benefits under any long term disability benefit insurance plan
maintained by the Company for which he is eligible, shall not be
entitled to participate in any disability benefit plan made
generally available to other employees of the Company as in effect
from time to time.
(d)
Change in
Control . Notwithstanding
anything contained in the foregoing, if (i) within one (1) year of
the effective date of a Change in Control (as defined below)
Employee’s employment under this Agreement is terminated by
the Company, its assignee or successor, without Cause (including,
for purposes of this Section 4.1(d) only, an election by the
Company not to continue to Term of Employee’s employment),
(ii) within one (1) year of the effective date of a Change in
Control, Employee terminates his employment under this Agreement on
account of (y) a requirement to relocate to an office that is 35
miles or more from the office where Employee is located as of the
effective date of a Change in Control or (z) a material reduction
in the Employee’s compensation, or (iii) between one (1) year
and thirteen (13) months of the effective date of a Change in
Control, Employee terminates his employment under this Agreement on
account of (y) Employee’s position, responsibilities or
working conditions being substantially diminished or (z) a material
reduction in the Employee’s compensation or benefits, the
Employee shall be entitled to receive and be paid, in lieu of
compensation payable pursuant to Section 4
