(b) The claims you are releasing include, without limitation, claims of wrongful termination, claims of constructive discharge, claims arising out of employment agreements, representations or policies related to your employment, claims arising under federal, state or local laws or ordinances prohibiting discrimination or harassment or requiring accommodation on the basis of age, race, color, national origin, religion, sex, disability, marital status, sexual orientation or any other status, claims of failure to accommodate a disability or religious practice, claims for violation of public policy, claims of retaliation, claims of failure to assist you in applying for future position openings, claims of failure to hire you for future position openings, claims for wages or compensation of any kind (including overtime claims), claims of tortious interference with contract or expectancy, claims of fraud or negligent misrepresentation, claims of breach of privacy, defamation claims, claims of intentional or negligent infliction of emotional distress, claims of unfair labor practices, claims arising out of any claimed right to stock or stock options or other equity interests, claims for attorneys' fees or costs, and any other claims that are based on any legal obligations that arise out of or are related to your employment relationship with us.
(c) You specifically waive any rights or claims that you may have under Title 49 of the Revised Code of Washington, the Civil Rights Act of 1964 (including Title VII of that Act), the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967 (ADEA), the Americans with Disabilities Act of 1990 (ADA), the Fair Labor Standards Act of 1938 (FLSA), the Family and Medical Leave Act of 1993 (FMLA), the Worker Adjustment and Retraining Notification Act (WARN), the Employee Retirement Income Security Act of 1974 (ERISA), the National Labor Relations Act (NLRA), and all similar federal, state and local laws.
(d) You agree not to seek any personal recovery (of money damages, injunctive relief or otherwise) for the claims you are releasing in this Separation Agreement, either through any complaint to any governmental agency or otherwise. You agree never to start any lawsuit or arbitration asserting any of the claims you are releasing in this Separation Agreement. You represent and warrant that you have not initiated any complaint, charge, lawsuit or arbitration involving any of the claims you are releasing in this Separation Agreement. Should you apply for future employment with a Riverview Affiliate, the Riverview Affiliate has no obligation to consider you for future employment.
(e) You represent and warrant that you have all necessary authority to enter into this Separation Agreement (including, if you are married, on behalf of your marital community) and that you have not transferred any interest in any claims to your spouse or to any third party.
(f) This Separation Agreement does not affect your rights arising under benefit plans through the date of separation or thereafter under the terms of those plans or bylaws, if any, to receive pension plan benefits, medical plan benefits, unemployment compensation benefits or workers' compensation benefits. This Separation Agreement also does not affect your rights, if any, under agreements, bylaw provisions, insurance or otherwise, to be indemnified, defended or held harmless in connection with claims that may be asserted against you by third parties.
(g) You understand that you are releasing potentially unknown claims, and that you have limited knowledge with respect to some of the claims being released. You acknowledge that there is a risk that, after signing this Separation Agreement, you may learn information that might have affected your decision to enter into this Separation Agreement. You assume this risk and all other risks of any mistake in entering into this Separation Agreement. You agree that this release is fairly and knowingly made.
(h) You are giving up all rights and claims of any kind, known or unknown, except for the rights specifically given to you in this Separation Agreement.
this Separation Agreement are an admission of liability or wrongdoing by any Riverview Affiliate.
9. Riverview Materials.
You represent and warrant that you have, or no later than the Separation
Date will have, returned all keys, credit cards, documents and other materials that belong to us, and disclosed
all computer user identifications and passwords used by you in the course of your employment or necessary for
accessing information on our computer system, in accordance with Section 11 of the Employment Agreement,
which is incorporated herein by reference.
10. Nondisclosure Agreement.
You will comply with the covenant regarding confidential information in Section 9.1 of the Employment Agreement, which covenant is incorporated herein by reference.
11. No Disparagement.
You may not disparage any Riverview Affiliate or its business or products, and may not encourage any third parties to sue a Riverview Affiliate.
12. Cooperation Regarding Other Claims
. If any claim is asserted by or against an Riverview Affiliate as to which you have relevant knowledge, you will reasonably cooperate with us in the prosecution or defense of that claim, including by providing truthful information and testimony as reasonably requested by us.
13. Noncompetition; Nonsolicitation; No interference.
You will comply with Sections 9.2, 9.3,
and 9.4 of the Employment Agreement, incorporated herein by reference, and Riverview will have the right
to enforce those provisions under the terms of Section 9.5 of the Employment Agreement, incorporated herein
by reference. Following the expiration of the respective covenants, you will not, apart from good faith
competition, interfere with any Riverview Affiliate's relationships with customers, employees, vendors, or
others.
14. Independent Legal Counsel.
You are advised and encouraged to consult with an attorney before
signing this Separation Agreement. You acknowledge that you have had an adequate opportunity to do so.
15. Consideration Period.
You have 21 days from the date this Separation Agreement is given to
you to consider this Separation Agreement before signing it. You may use as much or as little of this 21-day
period as you wish before signing. If you do not sign and return this Separation Agreement within this 21-day
period, you will not be eligible to receive the benefits described in this Separation Agreement.
16. Revocation Period and Effective Date
. You have 7 calendar days after signing this Separation
Agreement to revoke it. To revoke this Separation Agreement after signing it, you must deliver a written notice of revocation to Riverview's President before the 7-day period expires. This Separation Agreement shall not become effective until the 8
th
calendar day after you sign it. If you revoke this Separation Agreement it will not become effective or enforceable and you will not be entitled to the benefits described in this Separation Agreement.
17. Governing Law.
This Separation Agreement is governed by the laws of the State of Washington
that apply to contracts executed and to be performed entirely within the State of Washington.
18. Dispute Resolution.
(a)
Arbitration
. The parties agree to submit any dispute arising under this Agreement to final, binding, private arbitration in Vancouver, Washington. The disputes subject to arbitration include not only
A-3
<PAGE>
disputes involving the meaning or performance of the Agreement, but disputes about its negotiation, drafting, or execution. The dispute will be determined by a single arbitrator and governed by then-existing rules of
arbitration procedure in Clark County Superior Court except as set forth herein. Instead of filing a civil complaint in Clark County Superior Court, a party will commence the arbitration process by noticing the other party. The parties will choose an arbitrator who specializes in employment conflicts from the arbitration list for Clark County Superior Court. If the parties are unable to agree on an arbitrator within ten (10) days of receipt of the list of arbitrators, each party will select one attorney from the list, and those two attorneys shall select the arbitrator from the list (with each of the two selecting attorneys then concluding their services and each being compensated by the party selecting each attorney, subject to recovery of such fees under Section 18(b)). The arbitrator may charge his or her standard arbitration fees rather than the fees prescribed in Clark County Superior Court arbitration procedures. The arbitrator will have full authority to determine all issues, including arbitrability, to award any remedy, including permanent injunctive relief, and to determine any request for attorneys' fees, costs and expenses in accordance with Section 18(b). There shall be no right of review in court. The arbitrator's award may be reduced to final judgment or decree in Clark County Superior Court.
(b)
Expenses/Attorneys' Fees
. The prevailing party shall be awarded all costs and expenses of the proceeding, including but not limited to, attorneys' fees, filing and service fees, witness fees and arbitrator's fees. If arbitration is commenced, the arbitrator will have full authority and complete discretion to determine the "prevailing party" and the amount of costs and expenses to be awarded.
19. Saving Provision
. If any part of this Separation Agreement is held to be unenforceable, it shall
not affect any other part. If any part of this Separation Agreement is held to be unenforceable as written, it shall be enforced to the maximum extent allowed by applicable law.
20. Final and Complete Agreement
. Except for the Employment Agreement to the extent it is expressly incorporated herein by reference, this Separation Agreement is the final and complete expression of all agreements between us on all subjects and supersedes and replaces all prior discussions, representations, agreements, policies and practices. You acknowledge you are not signing this Separation Agreement relying on anything not set out herein.
Riverview Community Bank
By: ____________________________________
Title:___________________________________
I, the undersigned, having been advised to consult with an attorney, hereby agree to be bound by this Separation Agreement and confirm that I have read and understood each part of it.
_________________________________________
_________________________________________
Printed Name
_________________________________________
Date
A-4
<PAGE>
Exhibit 10.2
Form of Change in Control Agreement
<PAGE>
RIVERVIEW COMMUNITY BANK
CHANGE IN CONTROL AGREEMENT
FOR
_________________________
<PAGE>
RIVERVIEW COMMUNITY BANK
CHANGE IN CONTROL AGREEMENT
FOR
__________________________
This CHANGE IN CONTROL AGREEMENT ("
Agreement
") by and between RIVERVIEW
COMMUNITY BANK, a federally chartered savings bank (the "
Employer
"), which is a subsidiary of Riverview
Bancorp, Inc. (the "
Company
") and ____________
("
Executive
"), is dated ______________________,
________ (the "
Effective Date
").
1.
Term
. The term of this Agreement begins on the Effective Date and continues for three years. Commencing on the
first anniversary date, and continuing at each anniversary date thereafter, the term of this Agreement shall be
extended for a period of one year in addition to the then remaining term, provided that prior to such anniversary,
the Board of Directors explicitly reviews and approves the extension.
2.
Definitions.
2.1
"Cause"
. Cause for termination of employment means the occurrence of any one or more of the following:
(a) Willful misfeasance, gross negligence, conduct involving dishonesty, or a
material breach of a fiduciary duty in the performance of Executive's duties, as reasonably determined by
the Board of Directors;
(b) Conviction of any felony or of any crime in connection with Executive's
duties;
(c) Conduct significantly harmful to Employer, as reasonably determined by
the Board of Directors, including but not limited to intentional violation of law or of any significant policy
or procedure of the Employer;
(d) Refusal or failure to act in accordance with a stipulation, requirement,
directive of the Board of Directors or the Chief Executive Officer (provided such directive is lawful);
(e) Removal of Executive from office or permanent prohibition of Executive
from participating in the conduct of Employer's affairs by an order issued by a bank regulatory authority; or
(f) Chronic drug or alcohol abuse as reasonably determined by the Board of
Directors.
Whether any of the foregoing have occurred to give rise to Employer's right to terminate Executive for Cause
shall be determined by the Board of Directors after a meeting held for such purpose, at which Executive has been
provided an opportunity, together with Executive's counsel, to be heard by the Board. Executive shall be given
at least five business days' written notice prior to the meeting.
2.2
"Good Reason"
. Good Reason for Executive's resignation means any one or more of the following occurs without
Executive's consent:
(a) Reduction of Executive's Base Salary;
2
<PAGE>
(b) A material reduction in Executive's opportunity to receive incentive based
compensation compared to the opportunity under the Salary at Risk Bonus Program or such other incentive
based compensation program in effect immediately prior to the Change in Control;
(c) A material reduction in the benefits and perquisites to Executive from those
being provided as of the Effective Date of this Agreement, unless such reduction applies generally to all
executive officers;
(d) A relocation or transfer of Executive's principal place of employment that
would require Executive to commute on a regular basis more than 15 miles each way from the main business
office of Employer as of the date of this Agreement; or
(e) A change in Executive's position of employment such that the Executive's
functions, duties or responsibilities are materially changed and as a result of such change are inappropriate in
light of Executive's position prior to the change, Executive's previous employment experience, and
Executive's career development.
To resign for "Good Reason," Executive must have given Employer written notice of the circumstances giving
rise to Executive's resignation for Good Reason at least seven (7) days prior to such resignation and Employer
shall not have taken action to remove the Good Reason circumstances.
2.3
"Change in Control"
means:
(a) the Company merges or consolidates with another corporation and as a
result, less than 51% of the combined voting power of the resulting corporation immediately after the merger
or consolidation is held by persons who were the holders of the Company's voting securities immediately
before the merger or consolidation;
(b) any person, entity, or group of persons or entities, other than through
merger or consolidation, acquires a majority of the Company's outstanding common stock or substantially
all of the Company's assets; or
(c) the membership of the Company's board of directors changes as the result of
a contested election, such that individuals who were directors at the beginning of any 24 month period (whether
commencing before or after the Effective Date) do not constitute a majority of the board at the end of such
period.
3.
Change of Control Benefits.
3.1
Benefit Amount
. In the event Executive's employment with Employer is terminated
by Employer without Cause or is terminated by Executive with Good Reason within 12 months after the
effective date of a Change in Control, Employer shall pay Executive a severance benefit equal to (i) ____
months of Executive's monthly base salary (based on the higher of Executive's base salary as of the Change
in Control or as of the date of termination of employment), (ii) any incentive compensation (i.e. Salary At
Risk Program) not yet paid based on a fiscal year ended, and (iii) prorated incentive compensation for the
fiscal year in which the termination occurs based on performance through the month ended prior to the date
of termination (the "
Change in Control Benefit
"). The Change in Control Benefit shall be subject to any
reduction as required under Section 4 below and subject to statutory payroll deductions.
3.2
Additional Benefits
. In the event Executive's employment with Employer is
terminated by Employer without Cause or is terminated by Executive with Good
Reason within 12 months after the effective date of a Change in Control,
Employer shall provide continued coverage under existing Employer benefit plans
for life, medical and disability insurance for a period of three years following
a termination of employment that entitles Executive to the Change in Control
benefit under this Section 3.1.; provided, however, that if Employer benefit
plans do not permit continued participation by Executive
3
<PAGE>
following termination of employment, Employer shall include
in the lump-sum payment of the Change in Control Benefit under Section 3.2 an
amount equal to the premiums (estimated in good faith by Employer) that Employer
would have paid under such benefit plans for Executive's continued participation
for a three-year period.
3.3
Payment of Benefit
. The Change in Control Benefit will be paid in a lump sum within
10 days of termination of Executive's employment. Notwithstanding the foregoing, if the Change in Control
Benefit is subject to Section 409A of the Code and Executive is deemed to be a "specified employee" within
the meaning of Section 409A(a)(2)(B)(i) of the Code, the lump sum payment will not be made until the seventh
month following termination of employment.
3.4
Only Benefit
. Executive acknowledges that Executive is not entitled to participate in
any severance or change in control benefit policy generally provided to Employer's employees.
4.
Limitations on Severance Benefits
.
4.1
Release of Claims
. Executive's receipt of the Change in Control Benefit under Section 3 is conditioned on Executive having executed the Separation Agreement in substantially the form attached hereto as
Exhibit A
and the revocation period having expired without Executive having revoked the Separation Agreement. Receipt and continued receipt of the Severance Benefit or Change in Control Benefit, as appropriate, is further conditioned on Executive not being in violation of any material term of this Agreement or in violation of any material term of the Separation Agreement.
4.2
"Excess Parachute Payment" Restrictions
. If the benefits under Section 3, either alone or together with other payments to which
Executive is entitled to receive from Employer in connection with a Change in Control, would constitute an
"excess parachute payment" as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the
"
Code
"), such benefits shall be reduced to the largest amount that will result in no portion of the benefits being
subject to the excise tax imposed by Section 4999 of the Code. The determination of the amount of any
reduction in the benefits pursuant to the foregoing provisions, shall be made by mutual agreement of Employer
and Executive or if no agreement is possible, by Employer's accountants. Without limiting the foregoing,
Executive may, to the extent possible and in Executive's sole discretion, choose from among the payments or
benefits subject to limitation under this Section 8.2 which payments or benefits shall be reduced.
4.3
Regulatory Limitation
. Notwithstanding any other provision in this Agreement, Employer shall make no payment of any benefit
provided for herein to the extent that such payment would be prohibited by applicable banking regulations or
any regulatory order. If such payment is so prohibited, Employer shall use its best efforts to secure the consent
of the banking regulator to make such payments in the highest amount permissible, up to the amount provided
for in this Agreement.
5.
Restrictive Covenants
5.1
Confidential Information
. Executive acknowledges that in the course of Executive's employment, Executive will have or obtain knowledge of confidential information and other secrets concerning Employer and its business, plans and strategies, its actual and prospective customers, and other matters which are valuable to Employer and which Employer does not want disclosed ("
Confidential Information
"). Executive will not during and after the Term, disclose to any other person or entity any Confidential Information concerning Employer, its business operations or customers, or use for his own purposes or permit or assist others in the use of such confidential information, unless (i) the Board of Directors consents to the use or disclosure of the information, (ii) the use or disclosure is consistent with Executive's duties under this Agreement, or (iii) disclosure is required by law or court order.
5.2
Nonsolicitation
. During employment and for a period of 12 months following termination (whether voluntary or not) of Executive's employment, Executive will not solicit any customer
4
<PAGE>
of Employer or of any of Employer's
subsidiaries for services or products then provided by Employer or any of its subsidiaries. For purpose of this
Section, "
customers
" are defined as (i) all customers serviced by Employer or any of Employer's subsidiaries
at any time within 12 months before termination of Executive's employment, (ii) all customers and potential
customers whom Employer or Employer's subsidiaries, with the knowledge or participation of Executive,
actively solicited at any time during 12 months before termination of Executive's employment, and (iii) all
successors, owners, directors, partners and management personnel of the customers described in (i) or (ii).
5.3
Nonraiding of Employees
. Executive recognizes that the Employer's workforce is a vital part of its business; therefore, Executive agrees that for 12 months following termination of
Executive's employment, Executive will not directly or indirectly recruit or solicit any Employee (as defined
below) to leave his or her employment with Employer or any of Employer's subsidiaries. Without limiting
the foregoing, this includes that Executive will not (i) disclose to any third party the names, backgrounds, or
qualifications of any of the Employees or otherwise identify them as potential candidates for employment, or
(ii) personally or through any other person approach, recruit, interview or otherwise solicit Employees to
work for any other employer. For purposes of this Section, "
Employees
" means all employees working for
Employer or any of Employer's subsidiaries at the time of termination of Executive's employment.
5.4
Injunctive Relief
. Executive acknowledges that it is impossible to measure in
money the damages that will accrue to Employer if Executive fails to observe the covenants in this Section 5
(the "
Restrictive Covenants
"); therefore, the Restrictive Covenants may be enforced by an action at law for
damages and by an injunction or other equitable remedies to prohibit the restricted activity. Executive
hereby waives the claim or defense that an adequate remedy at law is available to Employer. Nothing set
forth herein shall prohibit Employer from pursuing all remedies available to it.
5.5
Reasonableness
. The parties agree that this Agreement in its entirety, and in
particular the Restrictive Covenants, are reasonable both as to time and scope. The parties additionally
agree (i) that the Restrictive Covenants are necessary for the protection of Employer's business and
goodwill; (ii) that the Restrictive Covenants are not any greater than are reasonably necessary to secure
Employer's business and goodwill; and (iii) that the degree of injury to the public due to the loss of the
service and skill of Executive or the restrictions placed upon Executive's opportunity to make a living with
Executive's skills upon enforcement of said restraints, does not and will not warrant non-enforcement of
said restraints. The parties agree that if the scope of the Restrictive Covenants is adjudged too broad to be
capable of enforcement, then the parties authorize said court or arbitrator to narrow the Restrictive
Covenants so as to make them capable of enforcement, given all relevant circumstances, and to enforce the
same.
5.6
Survival
. This Section 5 shall survive the termination of this Agreement.
6.
Creative Work.
Executive agrees that all creative work and work product, including but not limited to all
technology, business management tools, processes, software, patents, trademarks, and copyrights developed
by Executive during employment with Employer, regardless of when or where such work or work product
was produced, constitutes work made for hire, all rights of which are owned by Employer. Executive hereby
assigns to Employer all rights, title, and interest, whether by way of copyrights, trade secret, trademark,
patent, or otherwise, in all such work or work product, regardless of whether the same is subject to
protection by patent, trademark, or copyright laws.
7.
Return of Bank Property.
If and when Executive ceases for any reason to be employed by Employer,
Executive must return to Employer all keys, pass cards, identification cards and
any other property of Employer, and disclose all computer user identifications
and passwords used by Executive in the course of employment or necessary for
accessing information on Employer's computer system. At the same time, Executive
also must return to Employer all originals and copies (whether in hard copy,
electronic or other form) of any documents, drawings, notes, memoranda, designs,
devices, diskettes, tapes, manuals, and specifications which constitute
proprietary information or material of Employer. The obligations in this
5
<PAGE>
paragraph include the return of documents and other materials
that may be in Executive's desk at work, Executive's car or place of residence,
or in any other location under Executive's control.
8.
Dispute Resolution.
8.1
Arbitration
. The parties agree to submit any dispute arising under this Agreement to final, binding, private arbitration in
Vancouver, Washington. The disputes subject to arbitration include not only disputes involving the meaning or
performance of the Agreement, but disputes about its negotiation, drafting, or execution. The dispute will be
determined by a single arbitrator and governed by then-existing rules of arbitration procedure in Clark County
Superior Court except as set forth herein. Instead of filing a civil complaint in Clark County Superior Court, a
party will commence the arbitration process by noticing the other party. The parties will choose an arbitrator
who specializes in employment conflicts from the arbitration list for Clark County Superior Court. If the parties
are unable to agree on an arbitrator within ten (10) days of receipt of the list of arbitrators, each party will select
one attorney from the list, and those two attorneys shall select the arbitrator from the list (with each of the two
selecting attorneys then concluding their services and each being compensated by the party selecting each
attorney, subject to recovery of such fees under Section 8.2). The arbitrator may charge his or her standard
arbitration fees rather than the fees prescribed in Clark County Superior Court arbitration procedures. The
arbitrator will have full authority to determine all issues, including arbitrability, to award any remedy, including
permanent injunctive relief, and to determine any request for attorneys' fees, costs and expenses in accordance
with Section 8.2. There shall be no right of review in court. The arbitrator's award may be reduced to final
judgment or decree in Clark County Superior Court.
8.2
Expenses/Attorneys' Fees
. The prevailing party shall be awarded all costs and
expenses of the proceeding, including but not limited to, attorneys' fees, filing and service fees, witness fees
and arbitrator's fees. If arbitration is commenced, the arbitrator will have full authority and complete
discretion to determine the "prevailing party" and the amount of costs and expenses to be awarded.
9.
Miscellaneous
.
9.1
Notices
. Any notice to be delivered under this Agreement shall be given in writing and shall be deemed
delivered when received or three days after mailing, by certified mail, postage prepaid, addressed to the
Company's principal executive office or to Executive at his last known address on the records of the Company,
if mailed. Either party may designate an address for notices by written notice to the other.
9.2
Governing Law
. The validity, interpretation, construction and performance of this Agreement shall be governed by
the laws of the State of Washington.
9.3
Waiver/Amendment
. This Agreement may not be amended, released, discharged, abandoned, changed, or modified in
any manner, except by an instrument in writing signed by each of the parties hereto. The failure of any party
hereto to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a
waiver of any such provision, nor in any way to affect the validity of this Agreement or any part thereof or
the right of any party thereafter to enforce each and every such provision. No waiver or any breach of this
Agreement shall be held to be a waiver of any other or subsequent breach.
9.4
Severability
. If any provision of this Agreement shall be held by a court or arbitrator to be invalid or
unenforceable, the remaining provisions shall continue to be fully effective. If any part of this Agreement is
held to be unenforceable as written, it shall be enforced to the maximum extent allowed by applicable law.
The unenforceability of any provision in this Agreement in any jurisdiction shall not affect the
enforceability of any provision of this Agreement in any other jurisdiction.
9.5
Entire Agreement
.
This Agreement supersedes any other prior oral or written agreement regarding
severance benefits or benefits payable to Executive following a Change in
Control.
6
<PAGE>
This Agreement does not supersede any incentive compensation agreement (including
stock option agreements) entered into separately by the parties to this
Agreement.
9.6
IRC Section 409A
. If Employer or Executive believe, at any time, that this Agreement does not comply with Section
409A, it will promptly advise the other party and will negotiate reasonably and in good faith to amend the terms
of the Agreement, with the most limited possible economic effect on Employer and Executive, such that it
complies.
9.7
Assignment
. Executive shall not assign or transfer any of Executive's rights pursuant to this Agreement, wholly or partially,
to any other person or to delegate the performance of its duties under the terms of this Agreement. Upon
Executive's death, Executive's rights under this agreement shall inure to Executive's heirs, executors,
administrators or personal representatives. The rights and obligations of Employer under this Agreement shall
inure to the benefit of and be binding in each and every respect upon the direct and indirect successors and
assigns of Employer, regardless of the manner in which the successors or assigns succeed to the interests or
assets of Employer. This Agreement shall not be terminated by the voluntary or involuntary dissolution of
Employer, by any merger, consolidation or acquisition where Employer is not the surviving corporation, by any
transfer of all or substantially all of Employer's assets, or by any other change in Employer's structure or the
manner in which Employer's business or assets are held. Executive's employment shall not be deemed
terminated upon the occurrence of one of the foregoing events. In the event of any merger, consolidation or
transfer of assets, this Agreement shall be binding upon and shall inure to the benefit of the surviving
corporation or the corporation to which the assets are transferred.
9.8
Survival
. If any benefits provided to Executive under this Agreement are still owed or claims under the Agreement are
still pending, at the time of termination of this Agreement, this Agreement shall continue in force with respect
to those obligations or claims, until such benefits are paid in full or claims are resolved in full. The Restrictive
Covenants and dispute resolution provisions of this Agreement shall survive the termination of this Agreement,
and shall be enforceable regardless of any claim Executive may have against Employer.
9.9
Additional Provisions.
(a) If the Executive is suspended and/or temporarily prohibited from participating in the
conduct of the Employer's affairs by a notice served under Section 8(e)(3) or (g)(1) of the FDIA, 12 U.S.C.
Section 1818(e)(3) and (g)(1), the Employer's obligations under this Agreement shall be suspended as of the date
of service, unless stayed by appropriate proceedings. If the charges in the notice are dismissed, the Employer
may in its discretion (i) pay the Executive all or part of the payments under this Agreement that were withheld
while its obligations under this Agreement were suspended and (ii) reinstate in whole or in part any of its
obligations which were suspended.
(b) If the Executive is removed and/or permanently prohibited from participating in the
conduct of the Employer's affairs by an order issued under Section 8(e)(4) or (g)(1) of the FDIA, 12 U.S.C.
Section 1818(e)(4) and (g)(1), all obligations of the Employer under this Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties shall not be affected.
(c) If the Employer is in default (as defined in Section 3(x)(1) of the FDIA), all obligations
under this Agreement shall terminate as of the date of default, but this provision shall not affect any vested rights
of the contracting parties.
(d) All obligations under this Agreement shall be terminated, except to the extent
determined that continuation of this Agreement is necessary for the continued operation of the Employer: (1) by
the Director of the OTS (the "Director") or his or her designee, at the time the Federal Deposit Insurance
Corporation ("FDIC") enters into an agreement to provide assistance to or on behalf of the
7
<PAGE>
Employer under the
authority contained in Section 13(c) of the FDIA; or (2) by the Director or his or her designee, at the time the
Director or his or her designee approves a supervisory merger to resolve problems related to operation of the
Employer or when the Employer is determined by the Director to be in an unsafe or unsound condition. Any
rights of the parties that have already vested, however, shall not be affected by any such action.
(e) Any payments made to the Executive pursuant to this Agreement, or otherwise, are
subject to and conditioned upon their compliance with 12 U.S.C. Section 1828(k) and FDIC regulation 12 C.F.R.
Part 359, Golden Parachute and Indemnification Payments.
10.
ADVICE OF COUNSEL
.
Executive acknowledges that, in executing this Agreement, Executive has had the opportunity to seek the advice of independent legal counsel, and has read and understood all of the terms and provisions of this Agreement. This Agreement shall not be construed against any party be reason of the drafting or preparation hereof.
[
Signature Page to Follow
]
8
<PAGE>
IN WITNESS WHEREOF, the parties have signed this Agreement effective on the day and year first above written.
EXECUTIVE:
RIVERVIEW COMMUNITY BANK
By:
Name:
Its:
9
<PAGE>
Exhibit A
EMPLOYMENT SEPARATION AGREEMENT AND RELEASE OF CLAIMS
This is a confidential agreement (this "
Separation Agreement
") between you, _________________,
and us, Riverview Community Bank ("
Riverview
"). This Separation Agreement is dated for reference
purposes _____________, 20___, which is the date we delivered this Separation Agreement to you for your
consideration.
1. Termination of Employment.
Your employment terminates [or was terminated] on
_______________, 20___ (the "
Separation Date
").
2. Payments.
In exchange for your agreeing to the release of claims and other terms in this
Separation Agreement, we will pay you the Change in Control Benefit in Section 3 of the Change in Control
Agreement between you and Employer dated __________________ (the "
CIC Agreement
"), which is
incorporated herein by reference. You acknowledge that we are not obligated to make these payments to you
unless you comply with the material terms of the CIC and of this Separation Agreement.
3. COBRA Continuation Coverage.
Your normal employee participation in Riverview's group health coverage will terminate on the Separation Date. Continuation of group health coverage thereafter will be made available to you and your dependents pursuant to federal law ("
COBRA
"). Continuation of group health coverage after the Separation Date is entirely at your expense, as provided under COBRA.
4. Termination of Benefits.
Except as provided in Section 3 above, your participation in all employee benefit plans and programs ended on the Separation Date. Your rights under any benefit or other plans in which you may have participated will be determined in accordance with the written plan documents governing those plans.
5. Full Payment.
You acknowledge having received full payment of all compensation of any kind (including wages, salary, paid time off, sick leave, commissions, bonuses and incentive compensation) that you earned as a result of your employment by us.
6. No Further Compensation.
Any and all agreements to pay you bonuses or other incentive
compensation are terminated. You understand and agree that you have no right to receive any further
payments for bonuses or other incentive compensation. We owe no further compensation or benefits of any
kind, except as described in Section 2 above.
7. Release of Claims.
(a) You hereby release (i) Riverview and its parent, subsidiaries, affiliates, and benefit plans (each, including Riverview, an "
Riverview Affiliate
") (ii) each of the Riverview Affiliates' past and present shareholders, executives, directors, officers, agents, employees, representatives, administrators, fiduciaries and attorneys, and (iii) the predecessors, successors, transferees and assigns of each of such persons and entities, from any and all claims of any kind, known or unknown, that arose on or before the date you signed this Separation Agreement.
(b) The claims you are releasing include, without limitation, claims of wrongful termination, claims of constructive discharge, claims arising out of employment agreements, representations or policies related to your employment, claims arising under federal, state or local laws or ordinances prohibiting
A-1
<PAGE>
discrimination or harassment or requiring accommodation on the basis of age, race, color, national origin, religion, sex, disability, marital status, sexual orientation or any other status, claims of failure to accommodate a disability or religious practice, claims for violation of public policy, claims of retaliation, claims of failure to assist you in applying for future position openings, claims of failure to hire you for future position openings, claims for wages or
compensation of any kind (including overtime claims), claims of tortious interference with contract or expectancy,
claims of fraud or negligent misrepresentation, claims of breach of privacy, defamation claims, claims of
intentional or negligent infliction of emotional distress, claims of unfair labor practices, claims arising out of any
claimed right to stock or stock options or other equity interests, claims for attorneys' fees or costs, and any other
claims that are based on any legal obligations that arise out of or are related to your employment relationship with
us.
(c) You specifically waive any rights or claims that you may have under Title 49 of the Revised Code
of Washington, the Civil Rights Act of 1964 (including Title VII of that Act), the Equal Pay Act of 1963, the Age
Discrimination in Employment Act of 1967 (ADEA), the Americans with Disabilities Act of 1990 (ADA), the Fair
Labor Standards Act of 1938 (FLSA), the Family and Medical Leave Act of 1993 (FMLA), the Worker Adjustment
and Retraining Notification Act (WARN), the Employee Retirement Income Security Act of 1974 (ERISA), the
National Labor Relations Act (NLRA), and all similar federal, state and local laws.
(d) You agree not to seek any personal recovery (of money damages, injunctive relief or otherwise)
for the claims you are releasing in this Separation Agreement, either through any complaint to any governmental
agency or otherwise. You agree never to start any lawsuit or arbitration asserting any of the claims you are
releasing in this Separation Agreement. You represent and warrant that you have not initiated any complaint,
charge, lawsuit or arbitration involving any of the claims you are releasing in this Separation Agreement. Should
you apply for future employment with a Riverview Affiliate, the Riverview Affiliate has no obligation to consider
you for future employment.
(e) You represent and warrant that you have all necessary authority to enter into this Separation
Agreement (including, if you are married, on behalf of your marital community) and that you have not
transferred any interest in any claims to your spouse or to any third party.
(f) This Separation Agreement does not affect your rights arising under benefit plans through the date of separation or thereafter under the terms of those plans or bylaws, if any, to receive pension plan benefits, medical plan benefits, unemployment compensation benefits or workers' compensation benefits. This Separation Agreement also does not affect your rights, if any, under agreements, bylaw provisions, insurance or otherwise, to be indemnified, defended or held harmless in connection with claims that may be asserted against you by third parties.
(g) You understand that you are releasing potentially unknown claims, and that you have limited knowledge with respect to some of the claims being released. You acknowledge that there is a risk that, after signing this Separation Agreement, you may learn information that might have affected your decision to enter into this Separation Agreement. You assume this risk and all other risks of any mistake in entering into this Separation Agreement. You agree that this release is fairly and knowingly made.
(h) You are giving up all rights and claims of any kind, known or unknown, except for the rights specifically given to you in this Separation Agreement.
8. No Admission of Liability.
Neither this Separation Agreement nor the payments made under this Separation Agreement are an admission of liability or wrongdoing by any Riverview Affiliate.
9. Riverview Materials.
You represent and warrant that you have, or no later than the
A-2
<PAGE>
Separation Date will have, returned all keys, credit cards, documents and other materials that belong to us, and disclosed all computer user identifications and passwords used by you in the course of your employment or necessary for accessing information on our computer system, in accordance with Section 7 of the CIC Agreement, which is incorporated herein by reference.
10. Nondisclosure Agreement.
You will comply with the covenant regarding confidential information in Section 5.1 of the CIC Agreement, which covenant is incorporated herein by reference.
11. No Disparagement.
You may not disparage any Riverview Affiliate or its business or products, and may not encourage any third parties to sue a Riverview Affiliate.
12. Cooperation Regarding Other Claims
. If any claim is asserted by or against an Riverview Affiliate as to which you have relevant knowledge, you will reasonably cooperate with us in the prosecution or defense of that claim, including by providing truthful information and testimony as reasonably requested by us.
13. Nonsolicitation; No Interference.
You will comply with Sections 5.2 and 5.3 of the CIC Agreement, incorporated herein by reference, and Riverview will have the right to enforce those provisions under the terms of Section 5.4 of the CIC Agreement, incorporated herein by reference. Following the expiration of the respective covenants, you will not, apart from good faith competition, interfere with any Riverview Affiliate's relationships with customers, employees, vendors, or others.
14. Independent Legal Counsel.
You are advised and encouraged to consult with an attorney before signing this Separation Agreement. You acknowledge that you have had an adequate opportunity to do so.
15. Consideration Period.
You have 21 days from the date this Separation Agreement is given to you to consider this Separation Agreement before signing it. You may use as much or as little of this 21-day period as you wish before signing. If you do not sign and return this Separation Agreement within this 21-day period, you will not be eligible to receive the benefits described in this Separation Agreement.
16. Revocation Period and Effective Date
. You have 7 calendar days after signing this Separation Agreement to revoke it. To revoke this Separation Agreement after signing it, you must deliver a written notice of revocation to Riverview's President before the 7-day period expires. This Separation Agreement shall not become effective until the 8
th
calendar day after you sign it. If you revoke this Separation Agreement it will not become effective or enforceable and you will not be entitled to the benefits described in this Separation Agreement.
17. Governing Law.
This Separation Agreement is governed by the laws of the State of Washington that apply to contracts executed and to be performed entirely within the State of Washington.
18. Dispute Resolution.
(a)
Arbitration
. The parties agree to submit any dispute arising under this Agreement to final, binding, private arbitration in Vancouver, Washington. The disputes subject to arbitration include not only disputes involving the meaning or performance of the Agreement, but disputes about its negotiation, drafting, or execution. The dispute will be determined by a single arbitrator and governed by then-existing rules of arbitration procedure in Clark County Superior Court except as set forth herein. Instead of filing a civil complaint in Clark County Superior Court, a party will commence the arbitration process by noticing the other party. The parties will choose an arbitrator who specializes in employment conflicts from the
A-3
<PAGE>
arbitration list for Clark County Superior Court. If the parties are unable to agree on an arbitrator within ten (10) days of receipt of the list of arbitrators, each party will select one attorney from the list, and those two attorneys shall select the arbitrator from the list (with each of the two selecting attorneys then concluding their services and each being compensated by the party selecting each attorney, subject to recovery of such fees under Section 18(b)). The arbitrator may charge his or her standard arbitration fees rather than the fees prescribed in Clark County Superior Court arbitration procedures. The arbitrator will have full authority to determine all issues, including
arbitrability, to award any remedy, including permanent injunctive relief, and to determine any request for
attorneys' fees, costs and expenses in accordance with Section 18(b). There shall be no right of review in court.
The arbitrator's award may be reduced to final judgment or decree in Clark County Superior Court.
(b)
Expenses/Attorneys' Fees
. The prevailing party shall be awarded all costs and expenses of the proceeding, including but not limited to, attorneys' fees, filing and service fees, witness fees and arbitrator's fees. If arbitration is commenced, the arbitrator will have full authority and complete discretion to determine the "prevailing party" and the amount of costs and expenses to be awarded.
19. Saving Provision
. If any part of this Separation Agreement is held to be unenforceable, it shall not affect any other part. If any part of this Separation Agreement is held to be unenforceable as written, it shall be enforced to the maximum extent allowed by applicable law.
20. Final and Complete Agreement
. Except for the Employment Agreement to the extent it is expressly incorporated herein by reference, this Separation Agreement is the final and complete expression of all agreements between us on all subjects and supersedes and replaces all prior discussions, representations, agreements, policies and practices. You acknowledge you are not signing this Separation Agreement relying on anything not set out herein.
Riverview Community Bank
By: ____________________________________
Title:___________________________________
I, the undersigned, having been advised to consult with an attorney, hereby agree to be bound by this Separation Agreement and confirm that I have read and understood each part of it.
_________________________________________
_________________________________________
Printed Name
_________________________________________
Date
A-4
<PAGE>
Riverview Bancorp (NASDAQ:RVSB)
Historical Stock Chart
From Jun 2024 to Jul 2024
Riverview Bancorp (NASDAQ:RVSB)
Historical Stock Chart
From Jul 2023 to Jul 2024