Exhibit 99.84
SEVERANCE AND RELEASE AGREEMENT
This Severance and Release Agreement ("Agreement") is made effective as of June
1, 2005 by and between North Valley Bancorp ("Employer"), and Xxxxxx Xxxxxx, an
individual ("Employee").
RECITALS
A. Employee was employed by Employer as its Senior Vice
President and Chief Financial Officer pursuant to that certain Employment
Agreement between the parties dated January 1, 2001 ("Employment Agreement").
Employee's employment with Employer terminated as of May 31, 2005. The parties
now wish to enter into this Severance and Release Agreement to clarify their
rights and obligations.
B. For and in consideration of the mutual promises and
covenants in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
OPERATIVE PROVISIONS
1. Termination of Employment.
(a) Employer and Employee acknowledge that Employee
resigned from Employer effective as of June 1, 2005. Employee acknowledges
Employer paid to Employee on June 1, 2005 his unpaid salary and vacation wages.
These amounts are subject to all applicable state and federal withholdings.
Employee acknowledges that Employer has paid to Employee within the legal time
limits all accrued wages, vacation, and other sums due and owing to Employee.
Employee acknowledges that no other sums are due and owing to him except as set
forth in this Agreement.
2. Salary Continuation Payment.
(a) In consideration of Employee's execution of and
compliance with this Agreement, Employer agrees to pay to Employee the gross sum
of One Hundred Thousand Dollars ($100,000.00) as the agreed-upon present value
of Employee's termination benefits under the Salary Continuation Agreement
between Employer and Employee. This amount shall be subject to all applicable
state and federal withholdings, and shall be paid in accordance with Employer's
normal payroll practices, except that no payment shall be made until the
expiration of the Consideration Period and Revocation Period referenced in
paragraph 5 below.
(b) Employer and Employee entered into that certain
agreement entitled North Valley Bancorp Executive Deferred Compensation
Agreement ("Nonqualified Deferred Compensation Agreement"). The parties agree
that the funds deferred pursuant to the Nonqualified Deferred Compensation
Agreement shall be paid out to Employee pursuant to the terms of that agreement.
Employee shall also remain entitled to any wages he has deferred through
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Employer's 401(k) Plan, in accordance with the terms of that Plan. Employee may
also exercise any rights to purchase stock he may have pursuant to the 1998
Employee Stock Incentive Plan.
Employee specifically acknowledges that the payment made to him pursuant to this
Section 2 is sufficient consideration for Employee's obligations under this
Agreement.
3. Compromise and Settlement. Employee, in consideration of the
promises and covenants made by Employer in this Agreement, hereby compromises,
settles and releases Employer from any and all past, present, or future claims,
demands, obligations, or causes of action, whether based on tort, contract, or
other theories of recovery arising from the employment relationship between
Employer and Employee, and the termination of that employment relationship. Such
claims include those Employee may have or has, or which may later accrue to or
be acquired by Employee, against Employer or its predecessors, successors in
interest, assigns, parent and subsidiary organizations, affiliates, and
partners, and its past, present, and future shareholders, members, officers,
directors, agents, and employees, and their heirs and assigns. Such claims
specifically include but are not limited to any claims pursuant to Employee's
Employment Agreement, Salary Continuation Agreement, Split Dollar Life Insurance
Agreement, Indemnification Agreement, and Executive Deferred Compensation
Agreement, or Employer's Executive Compensation Plan, including but not limited
to incentive compensation. Such claims also specifically include but are not
limited to claims for wages, wrongful termination, constructive discharge,
rights to stock options or grants or his rights as a shareholder of Employer,
fraud, mental or emotional distress, misrepresentation, attorney's fees, or any
claim for discrimination under federal or state law including, but not limited
to, discrimination based on age, sex, race, national origin, disability, marital
status, or any claims under Title VII of the Civil Rights Act, the Employee
Retirement Income Security Act, the Age Discrimination in Employment Act, Labor
Code sections 132a and 4553, or the Fair Employment and Housing Act of
California.
4. Unknown Claims. Employee acknowledges that this Agreement
applies to all known or unknown, foreseen or unforeseen, injury or damage
arising out of or pertaining to the employment relationship and its termination,
and expressly waives any benefit he may have under Section 1542 of the
California Civil Code, which provides as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
Employee understands and acknowledges that the significance and consequence of
this waiver of California Civil Code Section 1542 is that even if he should
eventually suffer injury arising out of or pertaining to the employment
relationship and its termination, he will be unable to make any claim for those
injuries. Furthermore, Employee acknowledges that he consciously intends these
consequences even as to claims for injuries that may exist as of the date of the
Agreement but which he does not know exist and which, if known, would materially
affect Employee's decision to execute this Agreement, regardless of whether
Employee's lack of knowledge is the result of ignorance, oversight, error,
negligence, or any other cause.
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5. Waiver of Rights Under the Age Discrimination in Employment
Act. Employee specifically understands and acknowledges that the Age
Discrimination in Employment Act of 1967, as amended (the "ADEA"), provides
Employee the right to bring a claim against Employer if Employee believes that
Employee has been discriminated against on the basis of age. Employer
specifically denies any such discrimination. Employee understands the rights
afforded to him under the ADEA and agrees that he will not file any claim or
action against Employer or any of the entities released in Section 3 affiliated
with Employer based on any alleged violations of the ADEA. Employee hereby
knowingly and voluntarily waives any right to assert a claim for relief under
this Act, including but not limited to back pay, front pay, attorneys fees,
damages, reinstatement or injunctive relief.
Employee also understands and acknowledges that the ADEA requires Employer to
provide Employee with at least twenty-one (21) calendar days to consider this
Agreement ("Consideration Period") prior to its execution. Employee acknowledges
that he was provided with and has used the Consideration Period or,
alternatively, that he elected to sign the Agreement within the Consideration
Period and waives the remainder of the Consideration Period. Employee also
understands that Employee is entitled to revoke this Agreement at any time
during the seven (7) days following Employee's execution of this Agreement
("Revocation Period"). Employee also understands that any revocation of this
Agreement must be in writing and delivered to the attention of Xxxxxxx Xxxxxxx,
President of North Valley Bancorp, with a copy to Xxx X. Xxxxxx, General
Counsel, at Employer's office at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx,
prior to the expiration of the Revocation Period.
6. No Admission of Liability. Employee acknowledges that neither
this Agreement, nor payment of any consideration pursuant to this Agreement,
shall be taken or construed to be an admission or concession of any kind with
respect to alleged liability or alleged wrongdoing against Employee by Employer.
Employer specifically asserts that all actions taken with regard to Employee
were proper and lawful and affirmatively denies any wrongdoing of any kind.
7. Confidentiality. The parties acknowledge that federal
securities laws require that this Agreement be filed with the Securities and
Exchange Commission. Employee agrees, however, not to otherwise discuss or
publish the terms of this Agreement to any third party, except that Employee may
discuss this Agreement with his attorney or accountant who may assist Employee
in evaluating, reviewing, or negotiating this Agreement or the tax implications
of this Agreement. Employee may also disclose this Agreement as may be required
by way of legal process, notice of which will be provided to Employer prior to
disclosure.
8. Return of Property. Employee has returned all property
belonging to Employer.
9. Confidential Information.
(a) Employee acknowledges that pursuant to Section 6 of
the Employment Agreement, he has a continuing obligation, even after termination
of the Employment Agreement, not to disclose to anyone any information relating
to Employer or any financial information, trade or business secrets, customer
lists, computer software or other information not otherwise publicly available
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concerning the business operations of Employer. This includes, but is not
limited to, any financial information concerning any of Employer's customers, as
it may exist from time to time. All such information relating to either Employer
or its customers is strictly confidential and is a valuable, special, and unique
asset of Employer's business.
(b) Employee acknowledges and agrees that the covenants
contained in this Section 9 are material to this Agreement, and that a violation
of this Section shall constitute a material breach of this Agreement. Employer
shall be entitled to receive injunctive relief to enforce these covenants, and
may seek any other remedy available to it by law.
10. References and Nondisparagement. Employer agrees that if it
receives any reference check inquiries relating to Employee, it will provide the
requesting party with Employee's position held, dates of employment, and, if
authorized, salary. Employer and Employee agree not to disparage each other.
11. Breach of Agreement. If Employee materially breaches this
Agreement, Employer shall have the right to withhold any payments due Employee
under this Agreement. If, however, a court of competent jurisdiction orders this
Agreement to be completely unenforceable, Employee shall repay to Employer the
total payments received under this Agreement within seven (7) calendar days from
the date of entry of the order.
12. Representation by Attorney. Employee acknowledges that
Employee has carefully read this Agreement; that Employee understands its final
and binding effect; that Employee has been given the opportunity to be
represented by independent counsel in negotiating and executing this Agreement
and that Employee has either chosen to be represented by counsel or has
voluntarily declined such representation; and that Employee understands the
provisions of this Agreement and knowingly and voluntarily agrees to be bound by
them.
13. No Reliance Upon Representations. Employee hereby represents
and acknowledges that in executing this Agreement, Employee does not rely and
has not relied upon any representation or statement made by Employer or by any
of Employer's past or present members, officers, directors, employees, agents,
representatives or attorneys with regard to the subject matter, basis or effect
of this Agreement.
14. No Pending Claim. Employee represents that Employee does not
currently have pending any complaint or action against Employer, or any of the
entities listed in Section 3, with any state, federal or local agency or court
based on any matters arising out of Employee's employment with Employer or its
termination, and will not do so at any time. Employee further represents that if
any such agency or court assumes jurisdiction of a complaint or action against
Employer, then Employee will direct that agency or court to withdraw from or
dismiss with prejudice the matter. Employee will not cooperate or participate in
the investigation or prosecution of any such complaint or action. Employee
further agrees not to participate in any way in any proceeding against Employer
except as may be required by law through a subpoena or similar court order.
Notwithstanding the foregoing, if Employee obtains against Employer a monetary
judgment or settlement for a claim released by him under this Agreement, the
total payments received by him shall be deducted from any such monetary judgment
or settlement.
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15. Indemnification. The parties specifically agree that the
Indemnification Agreement between them dated January 4, 2001, is hereby
terminated in its entirety. The parties agree that Employee's rights to
indemnification shall be governed by California Labor Code Section 2802.
16. Attorney's Fees. Each party shall bear its own attorney's fees
in the negotiation of this Agreement. Should any action be instituted to enforce
any provision of this Agreement, the prevailing party shall be entitled to
recover its costs and reasonable attorney's fees.
17. Entire Agreement. This Agreement and those surviving portions
of the Employment Agreement shall contain the entire agreement between the
parties, and they shall not be modified except in writing signed by the party to
be bound.
18. Severability. If a court of competent jurisdiction finds any
provision of this Agreement invalid or unenforceable as applied to any
circumstance, the remainder of this Agreement and the application of such
provision shall be interpreted so as best to effect the intent of the parties.
The parties further agree to replace any such void or unenforceable provision of
this Agreement with a valid and enforceable provision that will achieve, to the
extent possible, the economic, business, or other purposes of the void or
unenforceable provision.
19. Counterpart Originals. This Agreement may be signed in
counterparts.
20. Governing Law. This Agreement shall be governed by the laws of
the State of California.
Date: May 31, 2005 North Valley Bancorp
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By: /s/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx, President
Date: May 31, 2005 Xxxxxx Xxxxxx
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/s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
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