ex10_1.htm


    
      

    

    
      


      EXHIBIT
        10.1

      AGREEMENT

      


      This
        Agreement is made and is effective as of October 26, 2007 by and between
        Bank of
        Marin (“Company”) and _____________ (“Executive”).

      


      WHEREAS,
        Executive is currently employed by the Company and its parent company Bank
        of
        Marin Bancorp, a California corporation (“Bancorp”)  in the capacities
        of ______________ of each of Company and Bancorp, and Executive’s background,
        expertise and efforts have contributed to the success and financial strength
        of
        the Company; and

      


      WHEREAS,
        the Company wishes to assure itself of the continued opportunity to benefit
        from
        Executive’s services and Executive wishes to serve in the employ of the Company
        for such purposes;

      


      WHEREAS,
        the Board of Directors of the Company (“Board”) has determined that the best
        interests of the Company would be served by setting forth the benefits which
        the
        Company will provide to Executive if the Executive remains employed by the
        Company up to and including the consummation of a Change in Control of the
        Company; and

      


      WHEREAS,
        the Company wishes to provide a specific incentive to Executive to remain
        in the
        employ of the Company through and including the consummation of any Change
        in
        Control of the Company, as defined herein.

      


      NOW,
        THEREFORE, in order to effect the foregoing, the parties hereto wish to enter
        into an Agreement on the terms and conditions set forth below.  This
        Agreement (“Agreement”) therefore sets forth those benefits which the Company
        will provide to Executive in the event of a “Change in Control of the Company”
(as defined in paragraph 2) under the circumstances described below or in
        contemplation of a Change in Control as discussed in Paragraph 1
        below.  Accordingly, in consideration of the premises and the
        respective covenants and Agreements of or in contemplation of a Change in
        Control as discussed in Paragraph 1 below herein contained, and intending
        to be
        legally bound hereby, the parties hereto agree as follows:

      


      1.  
        TERM.  The term of this Agreement shall be one year from the
        date hereof, subject to annual automatic renewal, but the Agreement may be
        terminated by the Company following 90 days written notification without
        liability to the Executive prior to the occurrence of a Change of Control.
        If
        such termination occurs, Executive shall not be entitled to any of the benefits
        provided hereunder; provided, however, a termination of this Agreement, in
        contemplation of but prior to a Change in Control shall be presumed to be
        a
        termination following a Change in Control if such termination is reasonably
        proximate in time to the public announcement of said Change in Control. If
        a
        Change in Control of the Company should occur while Executive is still an
        employee of the Company, then this Agreement shall continue in effect from
        the
        date of such Change in Control of the Company for so long as Executive remains
        an employee of the Company, but in no event for more than one year following
        the
        consummation of a Change in Control of the Company; provided, however, that
        the
        expiration of the term of this Agreement shall not adversely affect Executive’s
        rights under this Agreement which have accrued prior to such expiration.
        If no
        Change in Control of the Company occurs before Executive’s status as an employee
        of the Company is terminated, this Agreement shall expire on such
        date.


      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

       

      2.  
        CHANGE IN CONTROL. For purposes of this Agreement, a “Change in Control
        of the Company” shall be deemed to have occurred upon the consummation of (A)
        any change in the ownership of the Company (as defined in Treasury Regulation
        §1.409A-3(i)(5)(v)), (B) a change in effective control of the Company (as
        defined in Treasury Regulation §1.409A-3(i)(5)(vi)), or (C) a change in the
        ownership of a substantial portion of the assets of the Company (as defined
        in
        Treasury Regulation §1.409A-3(i)(5)(vii)).  Such treasury regulations
        presently provide as follows: (A) A change in the ownership of a corporation
        occurs on the date that any one person, or more than one person acting as
        a
        group (as defined in Treasury Regulation §1.409A-3(i)(5)(v)(B)), acquires
        ownership of stock of the corporation that, together with stock held by such
        person or group, constitutes more than 50 percent of the total fair market
        value
        or total voting power of the stock of such corporation.  (B) A change
        in effective control of the corporation occurs only on either of the following
        dates: (1) The date any one person, or more than one person acting as a group
        (as determined under Treasury Regulation §1.409A-3(i)(5)(v)(B)), acquires (or
        has acquired during the 12-month period ending on the date of the most recent
        acquisition by such person or persons) ownership of stock of the corporation
        possessing 30 percent or more of the total voting power of the stock of such
        corporation, or (2) The date a majority of members of the corporation’s board of
        directors is replaced during any 12-month period by directors whose appointment
        or election is not endorsed by a majority of the members of the corporation’s
        board of directors before the date of the appointment or election, provided
        that
        for purposes of this paragraph the term corporation refers solely to the
        relevant corporation identified in Treasury Regulation §1.409A-3(i)(5)(ii) for
        which no other corporation is a majority shareholder for purposes of that
        paragraph.  (C) A change in the ownership of a substantial portion of
        a corporation’s assets occurs on the date that any one person, or more than one
        person acting as a group (as determined in Treasury Regulation
§1.409A-3(i)(5)(v)(B)), acquires (or has acquired during the 12-month period
        ending on the date of the most recent acquisition by such person or persons)
        assets from the corporation that have a total gross fair market value equal
        to
        or more than 40 percent of the total gross fair market value of all the assets
        of the corporation immediately before such acquisition or acquisitions (or
        such
        higher amount specified by the plan no later than the date by which the time
        and
        form of payment must be established under §1.409A-2).  For this
        purpose, gross fair market value means the value of the assets of the
        corporation, or the value of the assets being disposed of, determined without
        regard to any liabilities associated with such assets.

      


      3.   TERMINATION
        FOLLOWING CHANGE IN CONTROL.  If a Change in Control of the
        Company shall have occurred while Executive is still an employee of the Company,
        Executive shall be entitled to the payments and benefits provided in paragraph
        4
        hereof upon the subsequent termination of Executive’s employment, within one
        year following the consummation of a Change in Control of the Company, by
        Executive or by the Company unless such termination is (a) because
        of  death, “Disability” or “Retirement” (as defined below), (b) by the
        Company for “Cause” (as defined below), or (c) by Executive other than for “Good
        Reason” (as defined below), in any of which events Executive shall not be
        entitled to receive benefits under this Agreement.


      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      (i)
        Disability.  If, as a result of Executive’s incapacity due to
        physical or mental illness,  Executive shall have been absent from her
        duties with the Company on a full-time basis for 90 days, the Company may
        terminate this Agreement for “Disability.”

      


      (ii)
        Retirement.  Retirement shall mean the voluntary termination by
        Executive of her employment for other than “Good Reason” (as defined below)
        which termination qualifies as retirement in accordance with any pension
        plan
        adopted by the Company, pursuant to the Company’s normal retirement policies, or
        in accordance with any retirement arrangement established with Executive’s
        consent with respect to Executive; provided, however, that no mandatory
        retirement, whether under any pension plan or in accordance with any such
        other
        retirement arrangement, shall constitute Retirement for purposes of this
        Agreement, unless Executive has previously consented thereto in
        writing.

      


      (iii)  Cause.   Executive’s
        employment shall cease following a Change in Control upon a good faith finding
        of Cause by the Board.  “Cause” hereunder means the
        following:

      


      (A) 
        Executive’s personal dishonesty, incompetence or willful misconduct, including
        but not limited to a breach of the Company’s or Bancorp’s code of ethics or code
        of conduct;

      


      (B) 
        Executive’s breach of fiduciary duty involving personal profit;

      


      (C)
         Executive’s intentional failure to perform Executive’s duties for the
        Company after a written demand for performance is given to Executive by the
        Board which demand specifically identifies the manner in which the Board
        believes that Executive has not performed her duties;

      


      (D)  Executive’s
        willful violation of any law, rule, regulation or final cease and desist
        order
        (other than traffic violations or similar minor offenses) to the extent
        detrimental to the Company’s business or reputation; or

      


      (E) 
         the willful engaging by Executive in gross misconduct materially and
        demonstrably injurious to the Company.

      


      Notwithstanding
        any of the foregoing, Executive remains an “at will” employee of the Company and
        the Company can without cause terminate Executive’s employment prior to any
        Change in Control in the discretion of the Board of Directors of the
        Company.

      


      (iv)  Resignation
        for Good Reason.  Following a Change in Control during the Term
        hereof, Executive may, under the following circumstances, regard Executive's
        employment as being constructively terminated by the Company (and in such
        case
        Executive's employment shall terminate) and may, therefore, Resign for Good
        Reason within one year of Executive's discovery of the occurrence of one
        or more
        of the following events, any of which shall constitute "Good Reason" for
        such
        Resignation for Good Reason:


      
        
          
          

        

        
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        (A) 
          Without Executive's express written consent, an adverse change in Executive’s
          position or title, the assignment to the Executive of any duties or
          responsibilities inconsistent with the Executive’s position or removal of the
          Executive from or any failure to re-elect the Executive to any such
          positions;

        


        (B) 
          A reduction of the Executive’s base salary;

        


        (C) 
          A 20%, or greater, reduction in non-salary benefits;

        


        (D) 
          Failure of the Company to obtain the assumption of this Agreement by any
          successor; or;

        


        (E) 
          Requirement by the Company that the Executive be based anywhere other than
          within 40 miles of the Company’s current headquarters in Novato,
          California

      

      


      (v)  Notice
        of Termination.  Any termination by the Company pursuant to
        subparagraphs (i), (ii) or (iii) above or by Executive pursuant to subparagraph
        (iv) above shall be communicated by written Notice of Termination to the
        other
        party hereto. For purposes of this Agreement, a “Notice of Termination” shall
        mean a notice which shall indicate the specific termination provision in
        this
        Agreement relied upon and shall set forth in reasonable detail the facts
        and
        circumstances claimed to provide a basis for termination of Executive’s
        employment under the provision so indicated.

      


      (vi)  Date
        of Termination.  “Date of Termination” shall mean

      


      (A)  if
        this Agreement is terminated for Disability, thirty days after Notice of
        Termination is given,

      


      (B)  if
        Executive’s employment is terminated pursuant to subparagraph (iv) above, the
        date specified in the Notice of Termination,

      


      (C)  if
        Executive’s employment is terminated for any other reason, the date on which a
        Notice of Termination is given (or, if a Notice of Termination is not given,
        the
        date of such termination), and

      


      (D)  if
        Executive is entitled to compensation pursuant to paragraph 4, the date
        determined pursuant to such paragraph.

      


      4.   
        COMPENSATION DURING DISABILITY OR UPON TERMINATION.

      


      (i)
        If,
        after a Change in Control of the Company, Executive shall fail to perform
        her
        duties because of a Disability, Executive shall continue to receive her full
        base salary monthly at the rate then in effect until her employment is
        terminated pursuant to paragraph 3(i) hereof.


      
        
          
          

        

        
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      (ii)  If,
        after a Change in Control of the Company, Executive’s employment shall be
        terminated for Cause, the Company shall pay Executive her full base salary
        through the Date of Termination at the rate in effect at the time Notice
        of
        Termination is given and the Company shall have no further obligations to
        Executive under this Agreement.

      


      (iii)  If,
        after a Change in Control of the Company, the Company shall terminate
        Executive’s employment (other than pursuant to paragraph 3(i) or 3(iii) hereof
        or by reason of death or Retirement as provided in Paragraph 3(ii)) or Executive
        shall terminate her employment for Good Reason, Executive shall be entitled
        to
        payments pursuant to this paragraph 4:

      


      The
        Company shall pay to Executive as severance pay (and without regard to the
        provisions of any benefit plan) in a lump sum on the fifth day following
        the
        Date of Termination, the following amounts:

       

      
        
          	
                   

                	
                  (x)

                	
                  The
                    average salary of the Executive for the last three full years
                    of service
                    multiplied by Executive’s Seniority Factor;
                    and

                


        

        


        
          	
                   

                	
                  (y)

                	
                  The
                    Executive’s annual bonus for the previous year;
                    and

                


        

        


        
          	
                   

                	
                  (z)

                	
                  Executive’s
                    health premiums under COBRA for 18 months and Dental/Vision premiums
                    under
                    COBRA for 12 months.

                


        

      

       

      Based
        on
        Executive’s position as ___________, the Seniority Factor shall be
        X.X.

      


      (iv)  Executive
        shall not be required to mitigate the amount of any payment provided for
        in this
        Agreement by seeking other employment or otherwise, nor shall the amount
        of any
        payment provided for in this paragraph 4 be reduced by any compensation earned
        by Executive as the result of employment by another employer after the Date
        of
        Termination, or otherwise.

      


      (v)  The
        provisions of this Agreement, and any payment provided for hereunder, shall
        not
        reduce any amounts otherwise payable, or in any way diminish Executive’s
        existing rights, or rights which would accrue solely as a result of the passage
        of time, under any employee benefit plan of the Company, any employment
        Agreement or other contract, plan or arrangement of the Company, except to
        the
        extent necessary to prevent double payment under any severance plan or program
        of the Company in effect at the Date of Termination.

      


      5.   
        SUCCESSOR’S BINDING AGREEMENT

      


      (i)  The
        Company will require any successor (whether direct or indirect, by purchase,
        merger, consolidation or otherwise) to all or substantially all of the business
        and/or assets of the Company, by Agreement in form and substance satisfactory
        to
        Executive expressly to assume and agree to perform this Agreement in the
        same
        manner and to the same extent that the Company would be required to perform
        if
        no such succession had taken place.


      
        
          
          

        

        
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      (ii)  This
        Agreement shall inure to the benefit of, and be enforceable by, Executive’s
        personal or legal representatives, executors, administrators, successors,
        heirs,
        distributes, devises and legatees. If Executive should die while any amounts
        would still be payable to Executive hereunder if Executive had continued
        to
        live, all such amounts, unless otherwise provided herein, shall be paid in
        accordance with the terms of this Agreement to Executive’s devisee, legatee or
        other designee or, if there be no such designee, to Executive’s
        estate.

      


      6. 
         NO EMPLOYMENT AGREEMENT.  In consideration of the
        foregoing obligations of the Company, Executive agrees to be bound by the
        terms
        and conditions of this Agreement and to remain in the employ of the Company
        during any period following any public announcement by any person of any
        proposed transaction or transactions which, if effected, would result in
        a
        Change in Control of the Company until a Change in Control of the Company
        has
        taken place or, in the opinion of the Board, such person has abandoned or
        terminated its efforts to effect a Change in Control of the
        Company.  Subject to the foregoing including but not limited to the
        provisions contained in Paragraph 1 that a termination in contemplation of
        a
        Change in Control entitles Executive to the amounts provided in Section 4,
        nothing contained in this Agreement shall impair or interfere in any way
        with
        Executive’s right to terminate her employment or the right of the Company to
        terminate Executive’s employment with or without cause prior to a Change in
        Control of the Company.  Nothing contained in this Agreement shall be
        construed as a contract of employment between the Company and Executive or
        as a
        right for Executive to continue in the employ of the Company, or as a limitation
        of the right of the Company to discharge Executive with or without cause
        prior
        to a Change in Control of the Company.

      


      7. 
         NOTICE.  For the purpose of this Agreement, notices and
        all other communications provided for in this Agreement shall be in writing
        and
        shall be deemed to have been duly given when delivered or mailed by United
        States registered mail, return receipt requested, postage prepaid, addressed
        to
        the respective addresses set forth on the last page of this Agreement, provided
        that all notices to the Company should be directed to the attention of the
        Chairman of the Company’s Compensation Committee, or to such other address as
        either party may have furnished to the other in writing in accordance herewith,
        except that notices of change of address shall be effective only upon
        receipt.

      


      8.  
        FURTHER ASSURANCES.  Each party hereto agrees to furnish and
        execute such additional forms and documents, and to take such further action,
        as
        shall be reasonable and customarily required in connection with the performance
        of this Agreement or the payment of benefits hereunder.

      


      9.  
        MISCELLANEOUS.  No provision of this Agreement may be modified,
        waived or discharged unless such waiver, modification or discharge is agreed
        to
        in writing signed by Executive and such officer as may be specifically
        designated by the Board of Directors of the Company.  No waiver by
        either party hereto at any time of any breach by the other party hereto of,
        or
        compliance with, any condition or provision of this Agreement to be performed
        by
        such other party shall be deemed a waiver of similar or dissimilar provisions
        or
        conditions at the same or at any prior or subsequent time.  No
        Agreements or representations, oral or otherwise, express or implied, with
        respect to the subject matter hereof have been made by either party which
        are
        not set forth expressly in this Agreement.  This Agreement contains
        the entire Agreement among the parties and supersedes and replaces any prior
        Agreement between the parties concerning the subject matter
        hereof.  The validity, interpretation, construction and performance of
        this Agreement shall be governed by the laws of the State of
        California.


      
        
          
          

        

        
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      10.  VALIDITY.  The
        invalidity or unenforceability of any provision of this Agreement shall not
        affect the validity or enforceability of any other provision of this Agreement,
        which shall remain in full force and effect.

      


      11.  COUNTERPARTS.  This
        Agreement may be executed in one or more counterparts, each of which shall
        be
        deemed to be an original but all of which together will constitute one and
        the
        same instrument.

      


      12.  ARBITRATION.  Any
        dispute or controversy arising or in connection with this Agreement shall,
        upon
        written request of one party to the other, be submitted to and settled
        exclusively by arbitration pursuant to the rules of the American Arbitration
        Association.  Judgment may be entered on the arbitrator's award in any
        court of competent jurisdiction.  The cost of such arbitration,
        including reasonable attorney’s fees, shall be borne by the losing party or in
        such proportions as the arbitrator(s) shall decide.  Arbitration shall
        be the exclusive remedy of Executive and the Company and the award of the
        arbitrator(s) shall be final and binding upon the parties.  All
        reasonable costs, including reasonable attorney’s fees, incurred in enforcing an
        arbitration award in court, or of seeking a court order to compel arbitration,
        shall be borne by the losing party in such proceedings.

      


      13.  ADVICE
        OF COUNSEL.  Executive acknowledges that he has been encouraged to
        consult with legal counsel of her choosing concerning the terms of this
        Agreement prior to executing this Agreement.  Any failure by Executive
        to consult with competent counsel prior to executing this Agreement shall
        not be
        a basis for rescinding or otherwise avoiding the binding effect of this
        Agreement.  The parties acknowledge that they are entering into this
        Agreement freely and voluntarily, with full understanding of the terms of
        this
        Agreement.  Interpretation of the terms and provisions of this
        Agreement shall not be construed for or against either party on the basis
        of the
        identity of the party who drafted the terms or provisions in
        question.

      


      14.  REDUCTION
        OF PAYMENT.  Notwithstanding anything in the foregoing to the
        contrary, if the severance payment or any of the other payments provided
        for in
        this Agreement, together with any other payments which Executive has the
        right
        to receive from the Company would constitute a "parachute payment" (as defined
        in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended, or
        such
        similar set of laws (the “Code”)), the payments pursuant to this Agreement shall
        be reduced to the largest amount as will result in no portion of such payments
        being subject to the excise tax imposed by Section 4999 of the Code, provided,
        however, that the determination as to whether any reduction in the payments
        under this Agreement pursuant to this proviso is necessary shall be made
        in good
        faith by Perry-Smith LLP or if such firm is no longer providing tax services
        to
        Company to such other advisor as shall be mutually acceptable to Company
        and
        Executive, and such determination shall be conclusive and binding on the
        Company
        and Executive with respect to the treatment of the payment for tax reporting
        purposes.


      
        
          
          

        

        
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      IN
        WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
        day
        and year first above written.

      


      
        	
                ATTEST:

              	 	
                BANK
                  OF MARIN

              
	 	 	
                Pell
                  Plaza

              
	 	 	
                504
                  Redwood Boulevard, Suite 100

              
	 	 	
                Novato,
                  CA 94947

              
	 	 	 
	 	 	 
	 	 	 
	
                Witness

              	 	
                President  &
                  CEO

              
	 	 	
                Russell
                  A. Colombo

              
	 	 	 
	 	 	 
	 	 	
                THE
                  EXECUTIVE

              
	 	 	
                Pell
                  Plaza

              
	 	 	
                504
                  Redwood Boulevard, Suite 100

              
	 	 	
                Novato,
                  CA 94947

              
	 	 	 
	 	 	 
	 	 	 
	
                Witness

              	 	
                XXXXXXXXXX

              


      

       

         

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