UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest
event reported):
March 20, 2007
TriCo Bancshares
(Exact name of registrant as specified in its charter)
California 0-10661 94-2792841
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(State or other (Commission File No.) (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or organization)
63 Constitution Drive, Chico, California 95973
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(530) 898-0300
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ] Soliciting material pursuant to rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers
(e) On March 20, 2007, TriCo Bancshares ("TriCo"), entered into an Amended
Employment Agreement with Richard P. Smith, President and CEO of TriCo, which
replaces in its entirety Mr. Smith's Amended Employment Agreement dated August
23, 2005. A copy of the Amended Employment Agreement is attached hereto as
Exhibit 10.1 and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
10.1 Amended Employment Agreement dated March 20, 2007, between Richard P.
Smith and TriCo Bancshares
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: March 21, 2007 TRICO BANCSHARES
(Registrant)
By: /s/Thomas J Reddish
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Thomas J. Reddish
Executive Vice President
Chief Financial Officer
Exhibit 10.1
AMENDED EMPLOYMENT AGREEMENT
This AMENDED EMPLOYMENT AGREEMENT ("Agreement") is entered into as of March 20,
2007 between TRICO BANCSHARES ("EMPLOYER"), having its principal place of
business at 63 Constitution Drive, Chico, California 95926 and Richard P. Smith
("Employee"), and replaces in its entirety the Amended Employment Agreement
dated August 23, 2005, between EMPLOYER and Employee.
WITNESSETH
WHEREAS, EMPLOYER desires to continue to employ Employee pursuant to the
terms of this Agreement and Employee is desirous of and wishes to continue in
such employment, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. EMPLOYMENT
EMPLOYER hereby employs Employee, and Employee hereby accepts appointment,
as President and Chief Executive Officer. Employee shall report to and be under
the supervision of the Board of Directors of EMPLOYER and Employee hereby agrees
to devote his full and exclusive time and attention to the business of EMPLOYER,
to faithfully perform the duties assigned to him by the Board of Directors
consistent with his office, and to conduct himself in such a way as shall best
serve the interests of EMPLOYER.
2. TERM OF AGREEMENT
Unless sooner terminated by EMPLOYER or the Employee pursuant to the
provisions of Sections 4 or 6 hereof, the employment provisions of this
Agreement shall terminate on the first (1st) anniversary of the date of this
Agreement. This Agreement shall automatically be extended for an additional year
on the first anniversary of this Agreement and each anniversary thereafter
unless a party notifies the other party to the contrary in writing 90 days prior
to an anniversary date; provided, however, this Agreement may not be terminated
pursuant to this Section 2 at any time there is a pending or threatened "Change
of Control" (as defined herein).
3. COMPENSATION
For and in consideration of the performance by the Employee of the
services, terms, conditions, covenants and promises herein recited, EMPLOYER
agrees and promises to pay to the Employee at the times and in the manner herein
stated, the following:
3.1 Salary. As the compensation for the services to be performed by the
Employee hereunder during the employment period, the Employee shall receive, as
gross salary before any withholding of whatever sort, the sum of $465,088.00 per
year, payable in the manner in which EMPLOYER's payroll is customarily handled.
Additionally, Employee will be eligible for such annual increases in salary as
EMPLOYER's Compensation Committee shall from time to time decide.
3.2 Bonus/Incentive Plan. Employee shall participate in a bonus/incentive
plan to be agreed upon between Employee and EMPLOYER and approved by the
EMPLOYER's Compensation Committee.
3.3 Stock Options.Employee will be granted options annually to purchase
shares of TRICO BANCSHARES ("TRICO") common stock pursuant to and under the
terms of TRICO's stock option plans in amounts determined by EMPLOYER's
Compensation Committee.
3.4 Employee Benefits.In addition to the above, EMPLOYER shall provide
Employee with the following:
(a) participation for the Employee and his dependents, in any present
or future disability, health, dental or other insurance plan
generally available to all employees of EMPLOYER, such
participation to be on the same basis as such other
executives/employees, except that the 90 day waiting period for
inclusion shall be waived;
(b) participation for the Employee in any present or future employee
savings plans, including, but not limited to EMPLOYER's 401(k)
Savings Plan; Employee Stock Ownership Plan; Executive Deferred
Compensation Plan; and Supplemental Executive Retirement Plan;
(c) twenty (20) paid vacation days annually; and
(d) a car allowance of $1,000.00 per month or use of an automobile
owned or leased by Trico, and reimbursement of other reasonable
out-of-pocket expenses incurred by the Employee in the
performance of the duties hereunder in accordance with the
policies of EMPLOYER.
4. EARLY TERMINATION OF EMPLOYMENT
4.1 Termination For Cause. EMPLOYER may at any time, in its sole
discretion, terminate the employment provisions of this Agreement for "cause,"
effective immediately upon providing the Employee with notice of his dismissal.
The only occurrences which shall constitute "cause" within the meaning of this
paragraph shall be the following:
(a) Employee's dishonesty, disloyalty, willful misconduct,
dereliction of duty or conviction of a felony or other crime the
subject matter of which is related to his duties for EMPLOYER;
(b) the commission by the Employee of an act of fraud or bad faith
upon EMPLOYER;
(c) the willful misappropriation of any funds or property of EMPLOYER
by the Employee;
(d) the willful, continued and unreasonable failure by the Employee
to perform his duties or obligations under this Agreement; or
(e) the breach of any material provisions hereof or the engagement by
the Employee, without the prior written approval of EMPLOYER, in
any activity which would violate the provisions of Section 7 of
this Agreement.
4.2 Termination Without Cause. EMPLOYER may at any time upon 90 days'
written notice given to Employee, in its sole discretion, terminate the
employment provisions of this Agreement without "cause," which term is defined
in Section 4.1 hereof; provided, however, this Agreement may not be terminated
pursuant to this Section 4.2 at any time there is a pending or threatened change
of control of EMPLOYER.
4.3 Voluntary Termination. The employment provisions of this Agreement
shall also terminate upon:
(a) the death or permanent physical or mental disability of the
Employee;
(b) the voluntary retirement of the Employee; or
(c) the voluntary resignation of the Employee.
For purposes hereof, permanent physical or mental disability shall be
deemed to have occurred when Employee has been unable, with reasonable
accommodation, to perform the essential functions of his job (i) for a period of
six (6) consecutive months or (ii) on 80% or more of the normal working days
during any nine (9) consecutive months.
5. RIGHTS UPON EARLY TERMINATION OF EMPLOYMENT
5.1 Termination Pursuant to Section 4.1 or 4.3. If Employee's employment is
terminated pursuant to paragraph 4.1 or 4.3 hereof, then EMPLOYER will have no
obligation to pay any amount to the Employee other than amounts earned or
accrued pursuant to the provisions of Section 3, but which have not yet been
paid as of the date of the termination of the Employee, and the Employee shall
have no further claims against EMPLOYER or its subsidiaries with respect to this
Agreement (except with respect to payments due and payable under this paragraph
5.1).
5.2 Termination Pursuant to Section 4.2. If Employee's employment is
terminated pursuant to paragraph 4.2 hereof, then EMPLOYER shall pay to the
Employee all amounts earned or accrued pursuant to the provisions of Section 3
hereof, but which have not yet been paid as of the date of the termination of
the Employee. In addition, EMPLOYER shall pay Employee a prorated amount of
Employee's minimum guaranteed annual bonus (as set forth in Section 3.2) through
the date of termination. In addition, EMPLOYER shall pay through the then
remaining term of this Agreement, the amount of salary that would be payable
pursuant to paragraph 3.1 if the Employee's employment had not been terminated,
at such times and in such amounts that would have been paid if Employee's
employment had not been terminated.
6. CHANGE OF CONTROL
6.1 Benefits. In the event of a Change of Control of EMPLOYER and in the
event that, within one year following the Change of Control, either: (i)
Employee's employment is terminated by EMPLOYER other than for "cause" as
defined in Section 5.2, or (ii) Employee terminates his employment with EMPLOYER
after a substantial and material negative change occurs in Employee's title,
compensation and/or responsibilities, then, subject to the provisions of Section
6.3, Employee shall be entitled to receive his salary at the rate then in effect
for a period of twenty-four (24) months following the occurrence of the events
set forth herein, as well as an amount equal to 200% of the annual bonuses
earned by Employee for the last complete calendar year or year of employment,
whichever is greater, paid in twenty-four equal monthly installments; provided,
however, that the present value of said payments shall not be more than two
hundred ninety-nine percent (299%) of Employee's compensation as defined by
Section 280G of the Internal Revenue Code of 1954, as amended. EMPLOYER shall be
relieved of its obligation to make payments under this Section 6.1 if, at the
time it is to make such payment, it is insolvent, in conservatorship or
receivership, is in a troubled condition, is operating under a supervisory
agreement with any regulatory agency having jurisdiction, has been given a
financial soundness rating of "4" or "5," or is subject to a proceeding to
terminate or suspend federal deposit insurance.
6.1 Defined. For purposes of this Section 6, a "Change of Control" of
EMPLOYER shall occur:
(a) upon EMPLOYER's knowledge that any person (as such term is used
in Section 13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended) is or becomes "the beneficial owner" (as
defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of shares representing 40% or more of the combined
voting power of the then outstanding securities of EMPLOYER or
Tri Counties Bank; or
(b) upon the first purchase of the common stock of EMPLOYER pursuant
to a tender or exchange offer (other than a tender or exchange
offer made by EMPLOYER); or
(c) upon the approval by the stockholders of EMPLOYER of a merger or
consolidation (other than a merger of consolidation in which
EMPLOYER is the surviving corporation and which does not result
in any reclassification or reorganization of EMPLOYER's then
outstanding securities), a sale or disposition of all or
substantially all of EMPLOYER's assets, or a plan of liquidation
or dissolution of EMPLOYER; or
(d) if, during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors
of EMPLOYER cease for any reason to constitute at least a
majority thereof, unless the election or nomination for the
election by the stockholders of EMPLOYER of each new director was
approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of the
period.
6.2 Limitations. Anything in this Agreement to the contrary
notwithstanding, prior to the payment of any compensation or benefits payable
under Section 6.1 hereof, the certified public accountants of EMPLOYER who
served as accountants immediately prior to a Change of Control (the "Certified
Public Accountants") shall determine as promptly as practical and in any event
within 20 business days following a Change of Control whether any payment or
distribution by EMPLOYER to or for the benefit of Employee (whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement,
any other agreements or otherwise) (a "Payment") would more likely than not be
nondeductible by EMPLOYER for Federal income tax purposes because of section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), and if it
is, then the aggregate present value of amounts payable or distributable to or
for the benefit of EMPLOYEE pursuant to this Agreement (such payments or
distributions pursuant to this Agreement are thereinafter referred to as
"Contract Payments") shall be reduced (but not below zero) to the Reduced
Amount. For purposes of this Section 6.3, the "Reduced Amount" shall be an
amount expressed in present value which maximizes the aggregate present value of
Contract Payments without causing any payment to be nondeductible by EMPLOYER
because of said Section 280G of the Code.
If under this Section the Certified Public Accountants determine that any
payment would more likely than not be nondeductible by EMPLOYER because of
Section 280G of the Code, EMPLOYER shall promptly give Employee notice to that
effect and a copy of the detailed calculation thereof and of the Reduced Amount,
and the Employee may then elect, in his sole discretion, which and how much of
the Contract Payments or any other payments shall be eliminated or reduced (as
long as after such election the aggregate present value of the Contract Payments
or any other payments equals the Reduced Amount), and shall advise the EMPLOYER
in writing of his election within 20 business days of his receipt of notice. If
no such election is made by Employee within such 20-day period, EMPLOYER may
elect which and how much of the Contract Payments or any other payments shall be
eliminated or reduced (as long as after such election the aggregate present
value of the Contract Payments equals the Reduced Amount) and shall notify
Employee promptly of such election. For purposes of this Section 6.3, present
value shall be determined in accordance with Section 280G(d)(4) of the Code. All
determinations made by the Certified Public Accountants shall be binding upon
EMPLOYER and Employee and the payment to Employee shall be made within 20 days
of a Change of Control. EMPLOYER may suspend for a period of up to 30 days after
a Change of Control the Payment and any other payments or benefits due to
Employee until the Certified Public Accountants finish the determination and
Employee (or EMPLOYER, as the case may be) elects how to reduce the Contract
Payments or any other payments, if necessary. As promptly as practicable
following such determination and the elections hereunder, EMPLOYER shall pay to
or distribute to or for the benefit of Employee such amounts as are then due to
Employee under this Agreement.
As a result of the uncertainty in the application of Section 280G of the
Code, it is possible that Contract Payments may have been made by EMPLOYER which
should not have been made ("Overpayment"), in each case, consistent with the
calculation of the Reduced Amount hereunder. In the event that the Certified
Public Accountants, based upon the assertion of a deficiency by the Internal
Revenue Service against EMPLOYER or Employee which said Certified Public
Accountants believe has a high probability of success, determines that an
Overpayment has been made, any such Overpayment shall be treated for all
purposes as a loan to Employee which Employee shall repay to EMPLOYER together
with interest at the applicable Federal rate provided for in Section
7872(f)(2)(A) of the Code; provided, however, that no amount shall be payable by
Employee to EMPLOYER in and to the extent such payment would not reduce the
amount which is subject to taxation under Section 4999 of the Code. In the event
that the Certified Public Accountants, based upon controlling precedent,
determine that an Underpayment has occurred, any such Underpayment shall be
promptly paid by EMPLOYER to or for the benefit of Employee together with
interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of
the Code.
6.3 Continuing Obligations. The triggering of this Section 6 shall not
relieve Employee or EMPLOYER of their obligations pursuant to the provisions of
Section 7 hereof, which contains independent agreements and obligations.
7. COVENANTS
7.1 Non-disturbance with Employees. Employee hereby agrees that (a) during
the term of his employment with EMPLOYER and for a period of twelve (12) months
following the termination of his employment, he will not directly or indirectly
solicit, cause any other person to solicit or assist any other person with
soliciting, the employment of any person who is, at the time of such
solicitation, or who was within 30 days of such solicitation, an employee of
EMPLOYER or its subsidiaries or employees. Employment for purposes of this
Section shall include consulting, performing services for commissions or
otherwise performing services for cash or other compensation.
7.2 Confidential Information. The parties hereto recognize that the
services performed and to be performed by Employee are special and unique and
that by reason of this employment Employee has acquired and will continue to
acquire information regarding the strategic plans, business plans, policies,
finances and customers and trade secrets of EMPLOYER ("Confidential
Information"). Employee hereby agrees not to divulge such Confidential
Information to anyone, either during his employment with EMPLOYER or for a
period of three (3) years following the termination of his employment. Employee
further agrees that all memoranda, notes, records, reports, letters, and other
documents made, compiled, received, held, or used by Employee while employed by
EMPLOYER concerning any phase of the business of EMPLOYER shall be EMPLOYER's
property and shall be delivered by Employee to EMPLOYER on the termination of
his employment, or at any earlier time on the request of the Board of Directors.
7.3 Non-use of Confidential Information. Employee hereby agrees that (a)
during the term of his employment with EMPLOYER; and (b) for a period of one
year following the termination of his employment, he will not use any
Confidential Information, and especially information concerning EMPLOYER's
customers to directly or indirectly solicit, cause any other person to solicit
or assist any other person with soliciting any customer, depositor or borrower
of EMPLOYER or its subsidiaries or affiliates to become a customer, depositor or
borrower of another bank, savings and loan, or financial institution.
7.4 Enforcement. The agreement of Employee regarding the provisions
contained in this Section 7 shall be enforceable both at law and in equity, by
injunction and otherwise; and the rights and remedies of EMPLOYER hereunder with
respect thereto shall be cumulative and not alternative and shall not be
exhausted by any one or more uses thereof.
8. ENTIRE AGREEMENT: WAIVERS AND AMENDMENTS
This Agreement sets forth the entire agreement between the parties with
respect to the terms and conditions of the relationship between Employee and
EMPLOYER and any and all matters related thereto, and any and all prior
agreements with respect to any thereof, whether oral or written, are superseded
hereby. Neither this Agreement nor any term or condition hereof, including
without limitation, the terms and conditions of this Section, may be waived or
modified in whole or in part as against EMPLOYER or Employee, as the case may
be, except by written instrument signed by an authorized officer of EMPLOYER and
by Employee, expressly stating that it is intended to operate as a waiver or
modification of this Agreement, and any such written waiver by either party of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach hereof.
9. NOTICE
Any notices, consents or other communication required to be sent or given
hereunder by any of the parties shall in every case be in writing and shall be
deemed properly served if (a) delivered personally, (b) sent by registered or
certified mail, in all such cases with first class postage prepaid, return
receipt requested, or (c) delivered by a recognized overnight courier service,
if to EMPLOYER at the address of its main office to the attention of its
President and, if to Employee, at his last address on the personnel records of
EMPLOYER or at such other addresses as may be furnished by a party in writing
according to the provisions of this Section 9, except that either party may from
time to time, in writing by certified mail, designate another address which
shall thereupon become his or its effective address for the purposes of this
Section 9.
10. SEVERABILITY
If any term or provision of this Agreement or the application thereof to
any person, property or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Agreement or the application of such term
or provision to persons, property or circumstances other than those as to which
it is invalid or unenforceable, shall not be effected thereby, and each term
provision of this Agreement shall be valid and enforced to the fullest extent
permitted by law.
11. NO RESTRICTIONS
Employee hereby represents and warrants that he is not now and will not be
subject to any agreement, restriction, lien, encumbrance, or right, title or
interest in any one of the foregoing, limiting in any way the scope of this
Agreement or in any way inconsistent with this Agreement.
12. NO ASSIGNMENT: BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of EMPLOYER,
its successors or assigns. Except as to the obligation of Employee to render
personal services which shall be non-assignable, this Agreement shall be binding
upon and inure to the heirs, executors, administrators, and assigns of Employee.
13. ARBITRATION
EXCEPT AS TO ANY ACTION BROUGHT TO ENFORCE THE PROVISIONS OF SECTION 7
ABOVE, ANY CONTROVERSY, DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THE
TERMINATION OF THE EMPLOYEE'S EMPLOYMENT, AND THE INTERPRETATION OF THIS
AGREEMENT, AND ANY AND ALL CLAIMS INCLUDING ANY STATUTORY CLAIMS OF
DISCRIMINATION, SHALL BE RESOLVED BY BINDING ARBITRATION UNDER THE EMPLOYMENT
DISPUTE RESOLUTION RULES OF THE AMERICAN ARBITRATION ASSOCIATION PROVISIONS OF
THE FEDERAL UNIFORM ARBITRATION ACT.
The parties agree that arbitration shall be the exclusive forum to resolve
any and all claims between the parties, their agents and employees regarding the
termination of employment, or of this Agreement, including any claims of
discrimination under any state or federal statute, wrongful discharge theory, or
any other claim whether based on specific state or federal statute or common
law.
ANY CLAIM MADE UNDER THIS PROVISION MAY BE SUBMITTED IN WRITING WITHIN 60
DAYS AFTER THE TERMINATION OF EMPLOYMENT OR THIS AGREEMENT. THE WRITTEN CLAIM
MUST DETAIL THE FACTS WHICH SUPPORT THE CLAIM ALONG WITH ANY LEGAL THEORIES OR
STATUS UPON WHICH THE CLAIM IS BASED.
The parties agree to abide by any determination of the arbitrator as to
which party is to be responsible for the costs and attorneys' fees in any such
proceeding. It is agreed that the arbitrator shall be empowered to hear all
legal and equitable claims, including claims for discrimination. The arbitrator
shall be governed by the law applicable to any claims based upon any state or
federal statute, and will also be empowered to award any remedies appropriate
under any such statues.
This provision shall survive the termination of Employee's employment and
this Agreement.
14. HEADINGS
The captions and headings contained herein have been inserted for
convenience or reference only and shall not affect the meaning or interpretation
of this Agreement.
15. GOVERNING LAW AND CHOICE OF FORUM
This Agreement shall be construed and enforced in accordance with the laws
of the State of California and shall be enforced in the State or Federal Courts
sitting in California.
EMPLOYEE
/s/Richard P. Smith
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Richard P. Smith
ATTEST:
/s/Thomas J. Reddish
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Thomas J. Reddish,
Vice President & CFO
TRICO BANCSHARES
By:/s/William J. Casey
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William J. Casey,
Chairman of the Board
ATTEST:
/s/Thomas J. Reddish
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Thomas J. Reddish,
Vice President & CFO