Exhibit 10.1
EMPLOYMENT AGREEMENT
CAROL KOBUKE NELSON
THIS EMPLOYMENT AGREEMENT ("Agreement") is made this 12th day of July,
2005, by and between CASCADE FINANCIAL CORPORATION and CASCADE BANK (hereinafter
jointly referred to as "Cascade") and CAROL KOBUKE NELSON ("Nelson") and will
become effective upon execution. Cascade and Nelson are sometimes collectively
referred to herein as "the Parties."
RECITALS
WHEREAS, Nelson currently serves as the President and Chief Executive
Officer of Cascade under the terms of an Employment Agreement last amended on
January 27, 2004; and
WHEREAS, the Parties wish to replace that Employment Agreement with this
Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Term. Nelson's term of employment ("Term") under this Agreement shall
commence on the date of execution of this Agreement and continue until
terminated as provided in the Termination provision of this Agreement.
2. Duties. Nelson is engaged as President and Chief Executive Officer of
Cascade Financial Corporation and Cascade Bank, and is responsible for the
overall operation and conduct of Cascade's business, in accordance with the laws
of the State of Washington and the federal government and pursuant to the
general guidelines and directions as established from time to time by the Board
of Directors of Cascade (the "Board"). Subject to any required approval by the
shareholders of Cascade, the Board of Directors of Cascade Bank and Cascade
Financial Corporation shall appoint or nominate and recommend Nelson for
election as a member of their respective Boards of Directors and, if so
appointed or elected, Nelson shall serve in that capacity as long as she is
employed as the President and Chief Executive Officer of Cascade Financial
Corporation and Cascade Bank.
3. Exclusive Services and Best Efforts. Nelson shall render services
solely on behalf of Cascade, and in no event shall she render services directly
to a customer of Cascade for the individual gain of Nelson, without Cascade's
prior written consent. Nelson shall devote her full time, attention and
energies, during regular business hours, to the business of Cascade. Nelson
further agrees that she shall perform any and all duties to the best of her
abilities. In addition to any other responsibilities which Cascade may from time
to time require her to perform, Nelson shall:
(a) Use her diligent efforts to promote the business and further the
goals of Cascade;
KELLER ROHRBACK L.L.P.
SUITE 3200
1201 THIRD AVENUE
SEATTLE, WASHINGTON 98101-3052
(206) 623-1900
- 1 -
(b) Conduct her business and regulate her habits so as to maintain
and increase the goodwill and reputation of both Cascade and its business and to
abide by all codes of ethics and other professional duties which are binding
upon or applicable to general good business practices;
(c) Not render to others, during her employment with Cascade,
services of any kind or promote, participate or engage in any other business
activity which would interfere with the performance of her duties under this
Agreement, including, without limitation, providing consulting services or
otherwise engaging in business with any person or entity which directly or
indirectly competes with Cascade, unless she first obtains Cascade's prior
written consent to engage in such outside activities.
Although Nelson is required to devote her entire time, attention and
energies to the business of Cascade and cannot, during the term of this
Agreement, be engaged in any other business activity which interferes with her
duties hereunder, whether or not such business activity is pursued for gain,
profit or other pecuniary advantage, this shall not be construed as preventing
Nelson from investing her assets in such manner as will not require any services
on her part in the operation of the affairs of the companies in which such
investments are made, or in making other investments which do not interfere with
her duties under this Agreement.
4. Compensation. Cascade shall pay Nelson, as compensation for her
full-time services during the Term of Employment, the following:
(a) Base Compensation. Nelson will receive a monthly salary, the
amount of which will be set annually by the Board ("Base Compensation"), payable
in accordance with Cascade's regular payroll schedule. Base Compensation will be
reviewed annually by the Compensation Committee. Nelson will receive no
additional compensation for serving as a member of the Board of Directors of
Cascade.
(b) Bonus. Nelson shall receive an annual bonus set by the
Compensation Committee ("Bonus"). In determining the amount of the Bonus, the
Compensation Committee shall consider earnings, asset quality, factors affecting
shareholder value and such other factors as the Compensation Committee shall
deem appropriate.
(c) Benefit Plans. During the Term, Nelson shall be entitled to
participate in any and all employee benefit plans, including, but not be limited
to, 401(k) Plan, Stock Option Plan, Deferred Compensation Plan and employee
welfare and health benefit plans, established by Cascade from time to time for
the benefit of all executives of Cascade. Nelson shall be required to comply
with the conditions attendant to coverage by such plans and shall comply with
and be entitled to benefits only in accordance with the terms and conditions of
such plans as they may be amended from time to time.
5. Business Expenses. Cascade will pay or reimburse Nelson for reasonable
and necessary business expenses incurred by Nelson, which are directly related
to the performance of her duties of employment, including travel, professional
memberships and professional development, subject to documentation by Nelson and
approval of the Chairman of the Audit Committee. Cascade will pay Nelson's
current monthly club membership dues at the Everett Golf and Country Club.
KELLER ROHRBACK L.L.P.
SUITE 3200
1201 THIRD AVENUE
SEATTLE, WASHINGTON 98101-3052
(206) 623-1900
- 2 -
6. Automobile. Nelson shall provide her own automobile, and Cascade shall
provide her an automobile allowance of $700 per month for use of such automobile
incident to her duties as President and Chief Executive Officer of Cascade. The
automobile allowance may be increased from time to time as deemed appropriate by
the Board.
7. Working Facilities. Nelson shall be furnished with such working
facilities as are reasonably required by Nelson to perform her duties as
President and Chief Executive Officer of Cascade, which working facilities shall
include, but not be limited to, an office and secretarial and staff support.
8. Termination. This Agreement may be terminated by Cascade upon written
notice to Nelson, and by Nelson upon 90 days written notice to Cascade. If
Nelson resigns from Cascade, except for Good Reason as defined in paragraph 8(a)
or Retirement as defined in paragraph 8(d) hereafter, she will receive only her
compensation, benefits earned and expenses reimbursable through the date this
Agreement is terminated. If Nelson's employment is terminated by Cascade or by
Nelson for Good Reason, she shall receive the compensation provided hereafter.
(a) Termination Without Cause/For Good Reason. If Nelson's
employment is terminated by Cascade, except for cause as provided in paragraph
8(b), or by Nelson for Good Reason, Nelson shall receive a severance benefit
equal to two (2) times her Base Compensation plus Bonus before salary deferrals
over the twelve (12) months preceding the month of termination, less statutory
payroll deductions. Such payment shall, at the option of Cascade, be made in a
lump sum or in accordance with Cascade's regular payroll schedule. For purposes
of this Agreement, "Good Reason" means any one or more of the following:
Reduction of Nelson's Base Compensation during the term of this Agreement
without Nelson's consent (other than as part of an overall program applied
uniformly to all members of senior management of the Bank); the assignment to
Nelson without her consent of any duties materially inconsistent with Nelson's
position as of the date of this Agreement; or a relocation or transfer of
Nelson's principal place of employment that would require Nelson to commute on a
regular basis more than 30 miles each way from Cascade's main office as of the
date of this Agreement.
(b) Termination for Cause. The compensation payable on termination
as provided in paragraph 8(a) shall not be payable in the event Nelson's
employment is terminated for cause. Termination shall be determined to be for
cause only in the event: (i) Nelson is convicted of a felony or crime involving
moral turpitude, or charged with a felony or crime involving moral turpitude if
the Board, in its sole discretion, determines that the adverse
publicity/notoriety stemming from such charge will make it difficult for Nelson
to perform her duties and/or Cascade to carry on its normal business activities;
or (ii) Nelson fails or refuses, after written request, to comply with any
material policies adopted by the Board; (iii) Nelson is terminated for fraud,
embezzlement, or willful misconduct (including, but not limited to, violation of
Cascade's anti-discrimination and harassment policies); or (iv) Nelson is
removed from office by the Board in order to comply with a requirement, request
or recommendation from the Supervisor of Banking for the State of Washington or
the Federal Deposit Insurance Corporation ("FDIC").
KELLER ROHRBACK L.L.P.
SUITE 3200
1201 THIRD AVENUE
SEATTLE, WASHINGTON 98101-3052
(206) 623-1900
- 3 -
(c) Death or Disability. This Agreement will terminate immediately upon
Nelson's death. If Nelson is unable to perform her duties and obligations under
this Agreement for an aggregate period of ninety (90) days as a result of a
physical or mental disability and cannot continue to perform her duties with
reasonable accommodation, the Board may terminate this Agreement. If termination
occurs due to Nelson's death, her estate will be entitled to receive only the
compensation, benefits earned, and expenses reimbursable through the date this
Agreement is terminated. If termination occurs due to Nelson's disability, she
shall continue to receive her Salary until payments under Cascade's long-term
disability plan commence, or in the event Cascade has no long-term disability
plan on the date of disability, Nelson's salary shall continue for a period of
six (6) months.
(d) Retirement. If Nelson retires from Cascade after attaining age
fifty-seven (57), she will receive as a severance benefit: (1) payment in an
amount equal to two (2) times her Base Compensation plus Bonus before salary
deferrals over the twelve (12) months prior to her retirement, with such amounts
payable in twenty-four (24) consecutive, equal monthly installments, with the
first such payment due on the first day of the first month following retirement;
(2) vesting of all stock options; and (3) the following health benefit coverage
for her and her spouse:
(i) Cascade will pay all premiums for benefits to Nelson and her
spouse under and subject to the term of the Consolidated Omnibus Budget
Reconciliation Act ("COBRA");
(ii) Upon expiration of any applicable COBRA coverage period, if
Nelson and/or her spouse are not then entitled to enroll for Medicare,
Cascade shall provide at its expense an individual health insurance policy
for Nelson and her spouse which will provide them with health care
benefits as nearly equivalent as possible to those provided Nelson by
Cascade prior to Nelson's retirement.
(iii) Upon reaching an age when Nelson and her spouse are entitled
to receive Medicare, but in no event after Nelson reaches age 65, this
benefit shall terminate.
If Nelson receives benefits under this paragraph, she foregoes any entitlement
to receive any other benefits under any other provisions of this Agreement,
including any right to receive a "Change of Control" payment.
9. Change of Control. If there is a Change of Control of Cascade as
hereinafter defined, all Nelson's stock options shall become fully vested upon
the effective date of the Change of Control. If Nelson leaves the employment of
Cascade, whether voluntarily or involuntarily, within twelve (12) months after
such Change of Control, Nelson shall receive an amount equal to two (2) times
her Base Compensation plus Bonus before salary deferrals over the twelve (12)
month period prior to the Change of Control. "Change of Control" as used herein
will be deemed to have occurred when there is:
KELLER ROHRBACK L.L.P.
SUITE 3200
1201 THIRD AVENUE
SEATTLE, WASHINGTON 98101-3052
(206) 623-1900
- 4 -
(a) Any individual, corporation (other than Cascade or an affiliated
entity), partnership, trust, association, pool, syndicate or any other entity or
any group of persons acting in concert becomes the beneficial owner, as that
concept is defined in Rule 13d-3 promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, of securities of Cascade
possessing fifty percent (50%) or more of the voting power for the election of
Directors of Cascade;
(b) There shall be consummated any consolidation, merger or other
business combination involving Cascade or the securities of Cascade in which
holders of voting securities of Cascade immediately prior to such consummation
own, as a group, immediately after such consummation, voting securities of
Cascade (or, if Cascade does not survive such transaction, voting securities of
the corporation surviving such transaction) having less than sixty percent (60%)
of the total voting power in an election of Directors of Cascade (or such other
surviving corporation);
(c) There shall be consummated any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the assets of Cascade (on a consolidated basis) to a party
which is not controlled by or under common control with Cascade; or
(d) Nelson shall, under no circumstances, receive a payment under
8(d) and a Change of Control payment.
10. Federal Regulatory Provisions.
(a) If Nelson is suspended and/or temporarily prohibited from
participating in the conduct of Cascade's affairs by a notice served under
section 8 (e)(3) or (g)(1) of Federal Deposit Insurance Act (12 U.S.C. 1818
(e)(3) and (g)(1)) Cascade'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, Cascade may in its discretion (i) pay
Nelson all or part of the compensation 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 Nelson is removed and/or permanently prohibited from
participating in the conduct of Cascade's affairs by an order issued under
section 8 (e)(4) or (g)(1) of the U.S.C. 1818 (e)(4) or (g)(1)), all obligations
of Cascade under this Agreement shall terminate as of the effective date of the
order, but vested rights of the Parties shall not be affected.
(c) If Cascade is in default (as defined in section 3(x)(1) of the
Federal Deposit Insurance Act), all obligations under this Agreement shall
terminate as of the date of default, but this paragraph (c) shall not affect any
vested rights of the Parties.
KELLER ROHRBACK L.L.P.
SUITE 3200
1201 THIRD AVENUE
SEATTLE, WASHINGTON 98101-3052
(206) 623-1900
- 5 -
(d) All obligations under this Agreement shall be terminated, except
to the extent determined that continuation of this Agreement is necessary to the
continued operation of Cascade:
(i) By the Director of the Federal Deposit Insurance Corporation
("Director") or his or her designee, at the time the Federal Deposit
Insurance Corporation enters into an agreement to provide assistance to or
on behalf of Cascade under the authority contained in 13(c) of the Federal
Deposit Insurance Act; or
(ii) 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 Cascade or when Cascade is determined by
the Director to be in an unsafe or unsound condition.
11. Confidentiality. Nelson acknowledges that she will have access to
certain proprietary and confidential information of Cascade and its clients.
Nelson will not, after signing this Agreement, including during and after its
Term, use for her own purposes or disclose to any other person or entity any
confidential information concerning Cascade or its business operations or
customers, unless: (i) Cascade consents to the use or disclosure of said
confidential information, (ii) the use or disclosure is consistent with Nelson's
duties under this Agreement, or (iii) disclosure is required by law or court
order.
12. Competition Restriction. During the Term and for twenty-four (24)
months thereafter, if Nelson receives compensation under paragraph 8(d), she
shall not become or serve as an officer, director, founder or employee of any
financial institution with its main office in King, Snohomish or Pierce
Counties, or any other financial institution which, in the judgment of the
Board, is in substantial competition with Cascade, unless Nelson has first
obtained the Board's written consent. In the event Nelson breaches this
condition, which breach is not corrected within fifteen (15) days of notice to
Nelson of such breach, Nelson shall forfeit all right to receive all benefits or
other payments remaining unpaid on the date of any such breach, and shall refund
any payments received pursuant to paragraph 8(d) hereof, and all unexercised
stock options which will be forfeited.
13. No Solicitation. During the Term and for twenty-four (24) months
thereafter, if Nelson receives compensation under paragraphs 8(d) or 9, she will
not, directly or indirectly, solicit or attempt to solicit: (i) any employees of
Cascade to leave their employment, or (ii) any customers of Cascade to remove
their business from Cascade to participate in any manner in a competing business
("Competing Business"). "Competing Business" means any financial institution or
trust company that competes with or will compete with Cascade in King, Snohomish
or Pierce County, or any start-up or other financial institution or trust
company in King, Snohomish or Pierce County.
14. Return of Bank Property. If and when Nelson ceases, for any reason, to
be employed by Cascade, Nelson must return to Cascade all keys, pass cards,
identification cards and any other property of Cascade. At the same time, Nelson
also must return to Cascade 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 Cascade. The obligations in this
paragraph include the return of documents and other materials which may be in
Nelson's desk at work, in Nelson's car or place of residence, or in any other
location under Nelson's control.
KELLER ROHRBACK L.L.P.
SUITE 3200
1201 THIRD AVENUE
SEATTLE, WASHINGTON 98101-3052
(206) 623-1900
- 6 -
15. Enforcement of Confidentiality and Non-Competition Covenants. Cascade
and Nelson stipulate that, in light of all of the facts and circumstances of the
relationship between them, the covenants referred to in paragraphs 10, 12, 13,
and 14 above, including, without limitation, their scope, duration and
geographic extent, are fair and reasonably necessary for the protection of
Cascade's confidential information, goodwill and other protectable interests. If
a court of competent jurisdiction should decline to enforce any of those
covenants and agreements, Nelson and Cascade request the court to reform these
provisions to restrict Nelson's use of confidential information and Nelson's
ability to compete with Cascade, to the maximum extent, in time, scope of
activities, and geography, as the court finds enforceable.
Nelson acknowledges that Cascade will suffer immediate and irreparable
harm that will not be compensable by damages alone, if Nelson repudiates or
breaches any of the provisions in paragraphs 10, 12, 13, and 14 above or
threatens or attempts to do so. For this reason, under these circumstances,
Cascade, in addition to and without limitation of any other rights, remedies or
damages available to it at law or in equity, will be entitled to obtain
temporary, preliminary and permanent injunctions in order to prevent or restrain
the breach, and Cascade will not be required to post a bond as a condition for
the granting of this relief.
16. Adequate Consideration. Nelson specifically acknowledges the receipt
of adequate consideration for the covenants contained in paragraphs 10, 12, 13,
and 14 above and that Cascade is entitled to require her to comply with these
paragraphs. These paragraphs will survive termination of this Agreement. Nelson
represents that if her employment is terminated, whether voluntarily or
involuntarily, she has the experience and capabilities sufficient to enable her
to obtain employment in areas which do not violate this Agreement and that
Cascade's enforcement of a remedy by way of injunction will not prevent Nelson
from earning a livelihood.
17. No Employee Contract Rights. Nothing contained in this Agreement shall
be construed to abrogate, limit or affect the powers, rights and privileges of
the Board to remove Nelson as President or Chief Executive Officer of Cascade,
with or without the cause.
18. Regulatory Agencies. The Parties fully acknowledge and recognize that
Cascade and Nelson (insofar as she conducts Cascade's business) are regulated
and governed by the Division of Banks for the State of Washington and the FDIC.
In the event the Division of Banks, the FDIC or any other governmental agency
with authority to regulate Cascade objects to, and requires modification of, any
of the terms of this Agreement, the Parties agree that they shall abide by and
modify the terms of this Agreement to comply with any and all requirements of
that governmental agency.
19. Dispute Resolution. The Parties agree to attempt to resolve all
disputes arising out of this Agreement by mediation. Any party desiring
mediation may begin the process by giving the other party a written Request to
Mediate, describing the issues involved and inviting the other party to join
with the calling party to name a mutually agreeable mediator and a timeframe for
the mediation meeting. The Parties and mediator may adopt any procedural format
that seems appropriate for the particular dispute. The contents of all
discussions during the mediation shall be confidential and non-discoverable in
subsequent arbitration or litigation, if any. If the Parties can, through the
mediation process, resolve the dispute(s), the agreement reached by the Parties
shall be reduced to writing, signed by the Parties, and the dispute shall be at
an end.
KELLER ROHRBACK L.L.P.
SUITE 3200
1201 THIRD AVENUE
SEATTLE, WASHINGTON 98101-3052
(206) 623-1900
- 7 -
If the result of the mediation is a recognition that the dispute cannot be
successfully mediated, or if either party believes mediation would be
unproductive or too slow, then either party may seek to resolve the dispute in
accordance with the procedures established by Judicial Arbitration and Mediation
Services, Inc.
The award rendered by the arbitrator (whether through Judicial Arbitration
and Mediation Services, Inc. or otherwise) shall be final, and judgment may be
entered upon it in accordance with applicable law in any court having
jurisdiction thereof.
The arbitrator shall allocate the costs charged by Judicial Arbitration
and Mediation Services, Inc., or other arbitrator as the case may be, for the
arbitration between the Parties in a manner which the arbitrator considers
equitable. It is agreed that the arbitrator shall award to the prevailing or
substantially prevailing party all fees incurred by such party with regard to
such arbitration, including reasonable legal and accounting fees. If the
arbitrator determines that there is no prevailing or substantially prevailing
party, the legal and accounting fees shall be the responsibility of each party.
20. Governing Law. All proceedings will be held at a place designated by
the arbitrator in Snohomish County, Washington. The arbitrator, in rendering a
decision as to any state law claims, will apply Washington law.
21. Exception to Arbitration. Notwithstanding the above, if Nelson
violates paragraphs 10, 12, 13, and 14 above, Cascade will have the right to
initiate the court proceedings described in paragraph 15 above, in lieu of an
arbitration proceeding. Cascade may initiate these proceedings wherever
appropriate within Washington state, but Nelson will consent to venue and
jurisdiction in Snohomish County, Washington.
22. Notice. Any notice to be delivered under this Agreement shall be given
in writing and delivered personally or by certified mail, postage prepaid,
addressed to Cascade or to Nelson at their last known address.
23. Independent Legal Counsel. Nelson acknowledges that she has had the
opportunity to review and consult with her own personal legal counsel regarding
this Agreement.
24. Non-Waiver. No delay or failure by either party to exercise any right
under this Agreement, and no partial single exercise of that right, shall
constitute a waiver of that or any other right.
KELLER ROHRBACK L.L.P.
SUITE 3200
1201 THIRD AVENUE
SEATTLE, WASHINGTON 98101-3052
(206) 623-1900
- 8 -
25. Severability. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be invalid or unenforceable, the remaining
provisions shall continue to be fully effective.
26. Entire Agreement. This Agreement represents the entire agreement of
the Parties. This Agreement supersedes any prior oral or written agreement
between the Parties on the subject matter hereof. This Agreement may be
superseded by another written agreement entered into between Nelson and Cascade
on mutually agreeable terms, provided such agreement expressly by its terms
supersedes this Agreement. The offer by Cascade to enter into any such
agreement, or the entering into such agreement, shall not be considered to have
terminated this Agreement, triggering the payment of benefits under paragraph 8
hereof.
27. Binding Effect. It is agreed that all covenants, terms and conditions
of this Agreement shall extend, apply to and firmly bind the heirs, executors,
administrators, assigns and successors in interest of the respective parties
hereto as fully as the respective parties themselves are bound. It is
specifically understood that in the event of Nelson's death prior to the full
payment of any benefit to which she is entitled under this Agreement, such
payment(s) shall be made to her spouse and/or heirs as the case may be.
IN WITNESS WHEREOF, the Parties have signed this Agreement on the day and
year first above written.
CASCADE FINANCIAL CORPORATION
By: /s/ Janice Halladay /s/ Carol K. Nelson
------------------------------------------------- -------------------
Title: Chair, Compensation & Personnel Committee CAROL KOBUKE NELSON
----------------------------------------------
CASCADE BANK
By: /s/ Janice Halladay
-------------------------------------------------
Title:Chair, Compensation & Personnel Committee
-----------------------------------------------
KELLER ROHRBACK L.L.P.
SUITE 3200
1201 THIRD AVENUE
SEATTLE, WASHINGTON 98101-3052
(206) 623-1900
- 9 -