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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 4.4(b), an amount equ
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