EXHIBIT 10(c)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of January 7, 1987 , is
between WESTAMERICA BANK, NATIONAL ASSOCIATION (the "Bank"), and
Robert W. Entwisle (the "Executive").
A. The Board of Directors of the Bank recognizes that
the Executive's contributions as Senior Vice President to the
growth and success of the Bank have been substantial and desires to
assure the Bank of the continued services of the Executive, on its
own behalf and on behalf of all existing and future Affiliated
Companies (defined as any corporation or other business entity or
entities that directly or indirectly controls, is controlled by, or
is under common control with the Bank) including, without
limitation, Westamerica Bancorporation (the "Corporation"), and the
Executive desires to continue in the employment of the Bank upon
the following terms and conditions.
B. The Bank has spent significant time, effort, and
money to develop certain Proprietary Information (as defined
below), which the Bank considers vital to its business and goodwill
and which will necessarily be communicated to or acquired by the
Executive in the course of his employment with the Bank, and the
Bank desires to ensure that it can protect its Proprietary
Information and goodwill.
ACCORDINGLY, THE PARTIES AGREE AS FOLLOWS:
1. Period of Employment. The Bank hereby employs the
Executive to render services to the Bank in the position and with
the duties and responsibilities described in Section 2 for the
period commencing on the date of this Agreement and ending on the
first anniversary thereof (the "Period of Employment"). Subject to
Section 4, the Executive's Period of Employment will be
automatically extended for an additional one-month period (without
any action by either party) on completion of each month of
employment under this Agreement, unless the Bank gives the
Executive written notice one year in advance that his employment is
to be terminated at the end of the Period of Employment (as
previously extended).
2. Position, Duties, Responsibilities.
(a) Position. Executive shall serve as
Senior Vice President of the Bank (or in such other position(s)
as the Board of Directors of the Bank (the "Board") shall
designate). Executive shall devote his best efforts and his full
time and attention to the performance of the services customarily
incident to such office and to such services as may be reasonably
requested by the Board. The Bank shall retain full direction and
control of the means and methods by which the Executive performs
the above services and of the place(s) at which such services are
to be rendered.
(b) Other Activities. Except upon the prior
written consent of the Board, the Executive, during the Period of
Employment, will not (i) accept any other employment, or (ii)
engage, directly or indirectly, in any other business activity
(whether or not pursued for pecuniary advantage) that is or may be
competitive with, or that might place him in a competing position
to that of the Bank or any Affiliated Company.
3. Compensation, Benefits, Expenses.
(a) Base Salary. In consideration of the
services to be rendered hereunder, including, without limitation,
services to any Affiliated Company, the Executive shall be paid an
annual base salary (the "Base Salary") of Eighty Thousand Dollars
($80,000), payable at the time and pursuant to the procedures
regularly established and as they may be amended by the Bank during
the course of this Agreement. The Employee Benefits and
Compensation Committee of the Corporation (the "Compensation
Committee") shall annually review the Executive's Base Salary to
consider whether to recommend to the Board to increase the same in
light of the Executive's performance during the preceding calendar
year, the performance and financial condition of the Bank and the
Corporation, any increases in the cost of living and any other
increases as are awarded in accordance with the Bank's regular
administrative practice for giving salary increases to similarly
situated employees.
(b) Bonus Payments. In addition to Base Salary,
the Executive shall be entitled to receive such bonus payments as
the Compensation Committee or the Board may determine pursuant to
any bonus plan in effect at the date of this Agreement or any
amendments or modifications thereto (the "Bonus Plan").
(c) Expenses. The Executive shall be entitled
to receive prompt reimbursement for all appropriate and reasonable
expenses incurred by him in performing services hereunder, provided
that the Executive properly accounts therefor in accordance with
the Bank's policies as they may be amended from time to time during
the course of this Agreement.
(d) Other Benefits. The Bank shall not make any
changes in any employee benefit plans or arrangements in effect on
the date hereof in which the Executive participates (including,
without limitation, each retirement plan, deferred compensation
plan, profit sharing plan, employee stock ownership plan, stock
purchase plan, stock option plan, life insurance plan, medical
insurance plan, long-term disability plan, vision care plan, dental
plan, or health-and-accident plan) which would adversely affect the
Executive's rights or benefits thereunder, unless such change
occurs pursuant to a program generally applicable to all senior
executives of the Bank and does not result in a proportionately
greater reduction in the rights of or benefits to the Executive as
compared with other senior executives. The Executive shall be
entitled to participate in and receive benefits under any employee
benefit plan or arrangement made available by the Bank in the
future to senior executives and key management employees, subject
to and on a basis consistent with the terms, conditions and overall
administration of such plan or arrangement. Nothing paid to the
Executive under any plan or arrangement presently in effect or made
available in the future shall be deemed to be in lieu of the Base
Salary payable to the Executive pursuant to Section 3(a). Any
payments or benefits and any bonus compensation payable to the
Executive hereunder in respect of any calendar year during which
the Executive is employed by the Bank for less than all of such
year shall, unless otherwise provided in the applicable
compensation plan or Bonus Plan, be prorated with the year-to-date
results being annualized and the bonus calculated accordingly.
(e) Vacations. The Executive shall be entitled
to not less than 27 days ( 5.4 ) weeks vacation in any
calendar year (prorated in any calendar year during which the
Executive is employed hereunder for less than all of such year).
The Executive shall also be entitled to all paid holidays given by
the Bank to its senior executive officers.
(f) Services Furnished. The Bank shall furnish
the Executive with office space, secretarial and clerical
assistance and such other facilities and services as shall be
suitable to the Executive's position and adequate for the
performance of his duties as set forth in Section 2 hereof.
(g) Automobile Allowance. The Executive shall
be entitled to receive an automobile allowance of $900 per month
during the Period of Employment in lieu of reimbursement for
mileage expenses incurred by the Executive in performing his
obligations under this Agreement.
4. Termination of Employment.
(a) By Death. The Period of Employment shall
terminate automatically upon the death of the Executive. The Bank
shall pay to the Executive's beneficiaries or estate, as
appropriate, the compensation to which he is entitled pursuant to
Section 3 through the end of the month in which death occurs,
unless otherwise provided in any applicable compensation plan or
Bonus Plan. Thereafter, the Bank's obligations hereunder shall
terminate. Nothing in this Section shall affect any entitlement of
the Executive's beneficiaries to the benefits of any life insurance
plan.
(b) By Disability. If, in the discretion of the
Board, the Executive shall be prevented from properly performing
his duties hereunder by reason of any physical or mental incapacity
for a period of more than one hundred eighty (180) consecutive
calendar days in any twelve-month period, then, to the extent
permitted by law, the Period of Employment shall terminate on and
the compensation to which the Executive is entitled pursuant to
Section 3 shall be paid up through the last day of the month in
which the 180th consecutive day of incapacity occurs, unless
otherwise provided in any applicable compensation plan or Bonus
Plan. After the conclusion of his Period of Employment, the
Executive shall receive a lump-sum payment equal to 67% of his Base
Salary for a period of one year, less any disability payments
otherwise payable by or pursuant to plans provided by the Bank or
Corporation and actually paid to the Executive. Thereafter, the
Bank's obligations under this section 4(b) shall terminate but the
Executive shall continue to be eligible to receive benefits under
the Bank's Group Disability Plan if he otherwise satisfies the
requirements for such benefits.
(c) By Bank For Cause. The Bank may terminate,
without liability, the Period of Employment for Cause (as defined
below) by delivering to the Executive thirty (30) days' advance
written Notice of Termination required by Section 4(i) below. The
Bank shall pay the Executive the compensation to which he is
entitled pursuant to Section 3, including the Executive's maximum
bonus under the Bonus Plan accrued to the date of termination,
through the end of the thirty (30) day notice period,
notwithstanding any other agreement between the Executive and the
Bank or any Affiliated Company. Thereafter the Bank's obligations
hereunder shall terminate. Termination shall be for Cause if: (i)
because of any act or failure to act by the Executive which is in
bad faith and to the detriment of the Bank or any Affiliated
Company; (ii) the Executive refuses or fails to act in accordance
with any direction or order of the Board; (iii) the Executive
exhibits unfitness for service (other than disability, as provided
for in Section 4(b)), unsatisfactory performance, misconduct,
dishonesty, habitual neglect, or incompetence in the management of
the affairs of the Bank or any Affiliated Company; (iv) the
Executive is convicted of a felony; (v) because the Executive, in
the discretion of the Board, breaches any term of this Agreement,
provided the breach continues for a period of five (5) days after
the Executive receives written notice of that breach from the
Board; or (vi) the Board of Governors of the Federal Reserve
System, the Comptroller of the Currency or the Board of Directors
of the Federal Deposit Insurance Corporation shall have ordered the
Executive removed from office pursuant to authority granted by
applicable law.
(d) By Executive For Good Reason. The Executive
may terminate, without liability, the Period of Employment for Good
Reason (as defined below) upon thirty (30) days' advance written
Notice of Termination to the Bank. The Bank shall pay the
Executive the compensation to which he is entitled pursuant to
Section 3, including the Executive's maximum bonus under the Bonus
Plan accrued to the date of termination, through the end of the
thirty (30) day notice period, unless otherwise provided in any
applicable compensation plan or Bonus Plan. In addition, the
Executive shall be entitled to severance pay on the date of
Termination in an amount equal to the sum of (i) the Executive's
full Base Salary; (ii) an amount equal to the maximum bonus(es) to
which the Executive would have been entitled under the Bonus Plan
had the Executive remained employed for an additional one year past
the date of termination; and (iii) an amount equal to the
automobile allowance payable to the Executive during the one-year
period immediately preceding the termination; provided, however,
that such severance payment does not exceed the amount allowable as
a federal income tax deduction to the Bank pursuant to Section 280G
of the Internal Revenue Code. Thereafter all obligations of the
Bank hereunder shall terminate. Good reason shall exist if: (i)
there is an assignment to the Executive of any duties materially
inconsistent with or which constitute an adverse material change in
the Executive's position, duties, responsibilities, or status with
the Bank, or an adverse material change in the Executive's
reporting responsibilities, title, or offices; or removal of the
Executive from or failure to reelect the Executive to any of such
positions, except in connection with the termination of the Period
of Employment for Cause, or due to disability, early or normal
retirement as defined by the Bank's pension plan, death, or
termination of the Period of Employment by the Executive other than
for Good Reason; (ii) there is a reduction by the Bank in the
Executive's annual salary then in effect other than a reduction
similar in percentage to a reduction generally applicable to
executives of the Bank; (iii) the Bank acts in any way that would
adversely affect the Executive's participation in or materially
reduce the Executive's benefit under any benefit plan of the Bank
in which the Executive is participating or deprives the Executive
of any material fringe benefit enjoyed by the Executive except
those changes generally affecting similarly situated executives of
the Bank; or (iv) the Bank reduces the number of paid vacation days
to which the Executive is then entitled.
(e) Termination Without Cause. If the Bank
terminates the Period of Employment without cause, the Bank shall
pay the Executive the compensation to which he is entitled pursuant
to Section 3, including the Executives' maximum bonus under the
Bonus Plan accrued to the date of termination, through the end of
the thirty (30) day notice period, unless otherwise provided in any
applicable compensation plan or Bonus Plan. In addition, the
Executive shall be entitled to severance pay on the date of
termination as though the Executive had terminated employment under
Section 4(d), above, provided such severance payment does not
exceed the amount allowable as a federal income tax deduction to
the Bank, pursuant to Section 280G of the Internal Revenue Code.
Thereafter, all obligations of the Bank shall terminate.
(f) Termination Due to Bankruptcy, Receivership.
The Period of Employment shall terminate and the Bank's obligation
hereunder (including the obligation to pay the Executive
compensation under Section 3) shall cease upon the occurrence of:
(i) the appointment of a receiver, liquidator, or trustee for the
Bank by decree of competent authority in connection with any
adjudication or determination by such authority that the Bank is
bankrupt or insolvent; (ii) the filing by the Bank of a petition in
voluntary bankruptcy, the making of an assignment for the benefit
of its creditors, or the entering into of a composition with its
creditors; or (iii) any formal action of the Board to terminate the
Bank's existence or otherwise to wind up the Bank's affairs
pursuant to such bankruptcy or receivership.
(g) Liquidated Damages; Requirement of Mitigation.
The Bank and the Executive acknowledge that it would be impractical
or extremely difficult to fix the Executive's actual damages in the
case of a termination pursuant to Section 4(d) or 4(e), and,
therefore, in the event of such termination and notwithstanding any
other provision of this Agreement, the Bank shall pay the Executive
liquidated damages in an amount equal to (i) the sum of (A) the
Executive's full Base Salary; (B) an amount equal to the maximum
bonus(es) to which the Executive would have been entitled under the
Bonus Plan had the Executive remained employed for an additional
one year past the date of termination; and (C) an amount equal to
the automobile allowance payable to the Executive during the one-year
period immediately preceding the termination of the Period of
Employment; reduced by (ii) any severance pay received by the
Executive pursuant to Section 4(d) or 4(e). The Executive shall be
required to mitigate the liquidated damages payable pursuant to
this paragraph. The Bank and the Executive agree that the amounts
provided for in this section represent a reasonable effort by the
parties to establish fair compensation for the losses that might
result from such termination and are not imposed as a penalty.
(h) Termination Obligations.
(A) The Executive hereby acknowledges and
agrees that all personal property, including, without limitation,
all books, manuals, records, reports, notes, contracts, lists, and
other documents, Proprietary Information (as defined below), and
equipment furnished to or prepared by the Executive in the course
of or incident to his employment, including, without limitation,
records and any other materials pertaining to Invention Ideas (as
defined below), belong to the Bank and shall be promptly returned
to the Bank upon termination of the Period of Employment.
(B) Upon termination of the Period of
Employment, the Executive shall be deemed to have resigned from all
offices and directorships then held with the Bank or any Affiliated
Company.
(C) The representations and warranties
contained herein shall survive termination of the Period of
Employment; the Executive's obligations under Sections 4(h), 5, 6,
and 7 shall survive the expiration of this Agreement.
(i) Notice of Termination. Any termination of
the Executive's employment by the Bank or by the Executive, except
pursuant to Section 4(a), shall be communicated by a "Notice of
Termination", which for the purposes of this Agreement shall mean
a written notice to the other party indicating the specific
termination provision in this Agreement relied upon and setting
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under
the provision so indicated.
5. Proprietary Information.
(a) Defined. "Proprietary Information" is all
information and any idea in whatever form, tangible or intangible,
pertaining in any manner to the business of the Bank or any
Affiliated Company unless: (i) the information is or becomes
publicly known through lawful means; (ii) the information was
rightfully in the Executive's possession or part of his general
knowledge prior to his employment by the Bank; or (iii) the
information is disclosed to the Executive without confidential or
proprietary restriction by a third party who rightfully possesses
the information (without confidential or proprietary restriction)
and did not learn of it, directly or indirectly, from the Bank.
(b) General Restrictions on Use. The Executive
agrees to hold all Proprietary Information in confidence and not
to, directly or indirectly, disclose, use, copy, publish,
summarize, or remove from the Bank's premises any Proprietary
Information (or remove from the premises any other property of the
Bank), except (i) during the Period of Employment to the extent
necessary to carry out the Executive's responsibilities under this
Agreement, and (ii) after termination of the Period of Employment
as specifically authorized in writing by the Board.
(c) Interference with Business; Competitive
Activities. The Executive acknowledges that the pursuit of the
activities forbidden by this Section 5(c) would necessarily involve
the use or disclosure of Proprietary Information in breach of
Section 5(b), but that proof of such breach would be extremely
difficult. To forestall such disclosure, use, and breach, and in
consideration of the employment under this Agreement, the Executive
agrees that for a period of one (1) year after termination of the
Period of Employment, he shall not, for himself or any third party,
directly or indirectly divert or attempt to divert from the Bank
(or any Affiliated Company) any business of any kind in which it is
engaged, including, without limitation, the solicitation of or
interference with any of its suppliers or customers, unless the
Executive can prove that any action taken in contravention of this
Section 5(c) was done without the use in any way of Proprietary
Information.
(d) Remedies. Nothing in this Section 5 is
intended to limit any remedy of the Bank under the California
Uniform Trade Secrets Act (California Civil Code S 3426), or
otherwise available under law.
6. Executive Inventions and Ideas.
(a) Defined. The term "Invention Ideas" means
any and all ideas, processes, trademarks, service marks,
inventions, discoveries, patents, copyrights, and improvements to
the foregoing that are conceived, developed, or crated by the
Executive alone or with others during his Period of Employment
(whether or not conceived, developed, or created during regular
working hours) and that: (i) fall within the existing or
contemplated business of the Bank or any Affiliated Company; (ii)
result from work done by the Executive for or at the request of the
Bank or any Affiliated Company; or (iii) result from the
Executive's use of or access to any Proprietary Information or any
equipment, supplies, facilities, memoranda, data, customer lists,
processes or the like of the Bank or any Affiliated Company.
(b) Disclosure. Executive agrees to maintain
adequate and current written records on the development of all
Invention Ideas and to disclose promptly to the Bank all Invention
Ideas and relevant records.
(c) Assignment. The Executive agrees to assign
to the Bank, without further consideration, his entire right,
title, and interest (throughout the United States and in all
foreign countries), free and clear of all liens and encumbrances,
in and to each Invention Idea, which shall be the sole property of
the Bank, whether or not patentable. In the event any Invention
Idea shall be deemed by the Bank to be patentable or otherwise
registrable, the Executive shall assist the Bank (at its expense)
in obtaining letters patent or other applicable registrations
thereon and shall execute all documents and do all other things
(including testifying at the Bank's expense) necessary or proper to
obtain letters patent or other applicable registrations thereon and
to vest the Bank, or any Affiliated Company specified by the Board,
with full title thereto.
(d) Exclusions. The Executive acknowledges that
there are no ideas, processes, trademarks, service marks,
inventions, discoveries, patents, copyrights, or improvements to
the foregoing that he desires to exclude from the operation of this
Agreement. To the best of the Executive's knowledge there is no
existing contract in conflict with this Agreement or any other
contract to assign ideas, processes, inventions, trademarks,
service marks, discoveries, patents, or copyrights that is now in
existence between the Executive and any other person, corporation,
partnership, or other business or governmental entity.
(e) Statutory Notice. Executive hereby
acknowledges that he understands that this Section 6 does not apply
to the invention that qualifies fully under Section 2870 of the
California Labor Code. That Code Section reads in relevant part:
Any provision in an employment agreement which
provides that an employee shall assign or offer to
assign any of his or her rights in an invention to
his or her employer shall not apply to an invention
for which no equipment, supplies, facility , or
trade secret information of the employer was used
and which was developed entirely on the employee's
own time, and (a) which does not relate (1) to the
business of the employer or (2) to the employer's
actual or demonstrably anticipated research or
development, or (b) which does not result from any
work performed by the employee for the employer.
Nothing in this Agreement is intended to expand the scope of
protection provided the Executive by Sections 2870 through 2872 of
the California Labor Code.
7. Assignment; Successors and Assigns. The Executive
agrees that he will not assign, sell, transfer, delegate or
otherwise dispose of, whether voluntarily or involuntarily, or by
operation of law, any rights or obligations under this Agreement,
nor shall the Executive's rights be subject to encumbrance or the
claims of creditors. Any purported assignment, transfer, or
delegation shall be null and void. Nothing in this Agreement shall
prevent the consolidation of the Bank with, or its merger into, any
other corporation, or the sale by the Bank of all or substantially
all of its properties or assets, or the assignment by the Bank of
this Agreement and the performance of its obligations hereunder to
any successor in interest or any Affiliated Company. Subject to
the foregoing, this Agreement shall be binding upon and shall
insure to the benefit of the parties and their respective heirs,
legal representatives, successors, and permitted assigns, and shall
not benefit any person or entity other than those enumerated above.
8. Notices. All notices or other communications
required or permitted hereunder shall be made in writing and shall
be deemed to have been duly given if delivered by hand or mailed,
postage prepaid, by certified or registered mail, return receipt
requested, and addressed to the Bank at:
WESTAMERICA BANK, N.A.
1108 Fifth Avenue
San Rafael, CA 94901
Attn: Kitty Jones, Corporate Secretary
or to the Executive at:
1260 Lynwood Drive
Novato, CA 94947
Notice of change of address shall be effective only when done in
accordance with this Section.
9. Entire Agreement. The terms of this Agreement
are intended by the parties to be the final expression of their
agreement with respect to the employment of the Executive by the
Bank and may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend that this
Agreement shall constitute the complete and exclusive statement of
its terms and that no extrinsic evidence whatsoever may be
introduced in any judicial, administrative, or other legal
proceeding involving this Agreement.
10. Amendments; Waivers. This Agreement may not be
modified, amended, or terminated except by an instrument in
writing, signed by the Executive and by a duly authorized
representative of the Bank other than the Executive. By an
instrument in writing similarly executed, either party may waive
compliance by the other party with any provision of this Agreement
that such other party was or is obligated to comply with or
perform, provided, however, that such waiver shall not operate as
a waiver of, or estoppel with respect to, any other or subsequent
failure. No failure to exercise and no delay in exercising any
right, remedy, or power hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, or
power provided herein or by law or in equity.
11. Severability; Enforcement. If any provision of this
Agreement, or the application thereof to any person, place, or
circumstance, shall be held by a court of competent jurisdiction to
be invalid, unenforceable, or void, the remainder of this Agreement
and such provisions as applied to other persons, places, and
circumstances shall remain in full force and effect. It is the
intention of the parties that the covenants contained in Sections
5 and 6 shall be enforced to the greatest extent (but to no greater
extent) in time, area, and degree of participation as is permitted
by the law of that jurisdiction whose law is found to be applicable
to any acts allegedly in breach of these covenants. It being the
purpose of this Agreement to govern competition by the Executive,
these covenants shall be governed by and construed according to
that law (from among those jurisdictions arguably applicable to
this Agreement and those in which a breach of this Agreement is
alleged to have occurred or to be threatened) which best gives them
effect.
12. Governing Law. Subject to Section 11, the
validity, interpretation, enforceability, and performance of this
Agreement shall be governed by and construed in accordance with the
law of the State of California.
13. Executive Acknowledgment. The Executive
acknowledges (i) that he has consulted with or has had the
opportunity to consult with independent counsel of his own choice
concerning this Agreement and has been advised to do so by the
Bank, and (ii) that he has read and understands the Agreement, is
fully aware of its legal effect, and has entered into it freely
based on his own judgment.
14. Remedies.
(a) Injunctive Relief. The parties agree that
in the event of any breach or threatened breach of any of the
covenants in Section 5 or 6, the damage or imminent damage to the
value and the goodwill of the bank's business will be irreparable
and extremely difficult to estimate, making any remedy at law or in
damages inadequate. Accordingly, the parties agree that the Bank
shall be entitled to injunctive relief against the Executive in the
event of any breach or threatened breach of any such provisions by
the Executive, in addition to any other relief (including damages)
available to the Bank under this Agreement or under law.
(b) Attorneys Fees. In any legal action,
arbitration, or other proceeding (including any appeal) brought by
the executive to enforce or interpret the terms of this Agreement,
the executive shall be entitled to reasonable attorneys' fees and
any other costs incurred in that proceeding in addition to any
other relief to which the executive is entitled.
(c) Exclusive. Both parties agree that this
Agreement shall provide the exclusive remedies for any breach by
the Bank of its terms.
15. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an
original but all of which together shall constitute one and the
same instrument.
The parties have duly executed this Agreement as of the
date first written above.
The "Bank" WESTAMERICA BANK, NATIONAL ASSOCIATION
By /s/M. Kitty Jones
---------------------
Its SVP and Corporate Secretary
The "Executive"
/s/Robert W. Entwisle
----------------------
(Executive's Name)
Robert W. Entwisle, Senior Vice President