EXHIBIT
10.6
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT BY AND BETWEEN NORTH BAY BANCORP
AND THE VINTAGE BANK AND TERRY L. ROBINSON DATED JANUARY 16,
2007
EXHIBIT
10.6
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED
AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into as of the 16 th day of January,
2007 by and between North Bay Bancorp, a California corporation
(the "Company"), The Vintage Bank, a California corporation (the
“Bank”), and Terry L. Robinson (the
"Employee").
BACKGROUND
WHEREAS, the
Employee is currently employed by the Company and has served as the
Company’s President & Chief Executive Officer since the
Company’s inception.
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 (the
“Employment Agreement”).
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 President and Chief
Executive Officer and the Bank hereby employs the Employee as Chief
Executive 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.
2
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 a
President and Chief Executive Officer of the Company and a Chief
Executive 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. The Company and Employee acknowledge and
agree that the Board of Directors has consented to Employee’s
service as a director of Idaho First Bank.
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 Two Hundred Twenty Five Thousand
Dollars ($225,000.00) 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 in
its sole and absolute discretion.
3
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
Chairman of the Board of Directors 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 Employment 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, including
travel, entertainment, parking, tolls, business meetings,
professional dues, and the dues associated with maintaining
membership at Silverado Country Club & Resort. 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.
4
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. The Company will reimburse
the Employee for mileage. 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.
5
(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 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
(“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
6
(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 4.4(b), an amount
equal
7
to two (2)
times (a) the Employee’s annual salary then in effect
plu
