EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”) by and among Plumas Bancorp (“Bancorp”) and Plumas Bank (“Bank”) (hereinafter Bancorp and Bank used collectively shall be referred to as “Employer”) and Xxxxxxx X. Xxxxxx (“Executive”), is dated as of February 18, 2009. (the “Effective Date)
| 1. | PURPOSE OF AGREEMENT. This Agreement sets forth the terms of Executive’s employment with Employer and provides Executive with severance benefits in certain circumstances as set forth in the Agreement. |
| 2. | TERM OF AGREEMENT. This Agreement commences as of the Effective Date and expires on the first anniversary of the Effective Date. |
| 3. | NO TERM OF EMPLOYMENT. Notwithstanding the term of this Agreement, the Bancorp and the Bank may terminate Executive’s employment at any time for any lawful reason or for no reason at all, subject to the provisions of this Agreement. Executive’s employment with the Bancorp and the Bank is “at will.” |
| 4. | DUTIES AND EXECUTIVE POSITION. As of the Effective Date, Executive shall be employed as President/Chief Executive Officer of the Bancorp and of the Bank, and will perform such duties as may be designated by Bancorp’s board of directors (the “Board”) with respect to Bancorp duties and the Bank’s board of directors (“Bank Board”) with respect to Bank duties. Executive will directly report to the Bancorp Board with respect to Bancorp matters and duties and to the Bank Board with respect to Bank matters and duties. |
Executive agrees that to the best of Executive’s ability and experience, Executive will at all times loyally and conscientiously perform all of the duties and obligations required of Executive pursuant to the express and implicit terms of this Agreement and as directed by the Bancorp Board and the Bank Board. Executive shall devote Executive’s entire working time, attention and efforts to Employer’s business and affairs, shall faithfully and diligently serve Employer’s interests and shall not engage in any business or employment activity that is not on Employer’s behalf (whether or not pursued for gain or profit) except for (i) activities approved in writing in advance by the Bancorp Board and the Bank Board and (ii) passive investments that do not involve Executive providing any advice or services to the businesses in which the investments are made.
| 5. | COMPENSATION. For all services performed under this Agreement, Bank agrees to pay the following compensation and benefits (with the understanding between the Bank and the Bancorp that the Bancorp shall fully and promptly reimburse the Bank for any and all of Executive’s compensation and benefits under this Agreement with respect to Executive’s duties on behalf of the Bancorp and in full compliance with Section 23A and 23B of the Federal Reserve Act and Regulation W of the Federal Reserve Board): |
Base Salary. Executive’s base salary is $19,583.33 per month ($235,000 on an annualized basis) (the “Base Salary”). Said annual base salary shall be payable in periodic monthly or semi-monthly installments in conformity with Bank’s normal payroll periods. The Executive’s base salary may be increased during the term of the Agreement at the discretion of the Bancorp’s Compensation Committee as ratified by the Bank’s Board.
Bonus. Executive shall be entitled to bonuses at the discretion of the Bancorp’s Compensation Committee as ratified by the Bank’s Board.
Paid Time Off and Special Sick Time Off. Executive shall be entitled to paid time off for vacation, personal time off and short-term illnesses in accordance with the Bank’s Employee Handbook.
Automobile. Executive shall be entitled to the use of a Bank automobile. Executive’s personal use of the Bank automobile shall be considered additional executive compensation, and Executive shall be responsible for the income taxes associated with the value of the personal use of the Bank automobile.
Additional Life Insurance. The Bank agrees to purchase and maintain during the term of this Agreement, a life insurance policy with Executive as the insured and with a death benefit of $100,000 for the benefit of Executive’s designated beneficiary, provided that the Executive qualifies for such life insurance policy under normal underwriting conditions. The Executive shall be responsible for the income taxes associated with the value of such insurance benefit.
Other Benefits. Executive is entitled to participate, under the terms of the respective plans, in other benefit plans and perquisites generally available to Bank’s employees in accordance with the Bank’s Employee Handbook.
As to any and all benefits with respect to reimbursements to the Executive as provided pursuant to the Bank’s Employee Handbook or otherwise, such reimbursements shall be made in accord with Bank reimbursement policies, on a timely basis, but in all events no later than the end of the calendar year following the year in which reimbursed expenses are incurred.
| 6. | TERMINATION. Executive’s employment may be terminated before the expiration of this Agreement as described in this Section, in which event Executive’s compensation and benefits shall terminate except as otherwise provided in this Agreement. |
For Cause. Upon the Bancorp’s or the Bank’s termination of Executive for Cause. For Cause shall mean
| (a) | Dishonest or fraudulent conduct by Executive with respect to the performance of Executive’s duties with the Bancorp or the Bank; |
| (b) | Conduct by Executive that materially discredits the Bancorp, the Bank or any of Bancorp’s subsidiaries or is materially detrimental to the reputation of the Bancorp, the Bank or any of Bancorp’s subsidiaries, including but not limited to conviction or a plea of nolo contendere of Executive of a felony or crime involving moral turpitude; |
| (c) | Executive’s willful misconduct or gross negligence in performance of Executive’s duties under this Agreement, including but not limited to Executive’s refusal to comply in any material respect with the legal directives of the Bancorp Board or the Bank Board, if such misconduct or negligence has not been remedied or is not being remedied to the reasonable satisfaction of such board of directors within thirty (30) days after written notice, including a detailed description of the misconduct or negligence, has been delivered by such board of directors to Executive; |
| (d) | An order or directive from a state or federal banking regulatory agency requesting or requiring removal of Executive or a finding by any such agency that Executive’s performance threatens the safety or soundness of the Bancorp, the Bank or any of Bancorp’s subsidiaries; or |
| (e) | Material breach of Executive’s fiduciary duties to the Bancorp or the Bank if such breach has not been remedied or is not being remedied to the reasonable satisfaction of such board of directors within thirty (30) days after written notice, including a detailed description of the breach, has been delivered by the such board of directors to Executive. |
Without Cause. Upon the Bancorp’s or the Bank’s termination of Executive without Cause, with or without notice, at any time in the Bancorp’s or the Bank’s sole discretion, for any reason other than for Cause. A Change in Control does not in itself constitute Termination Without Cause.
Death or Disability. For purposes of this Agreement, disability (“Disability”) or disabled (“Disabled”) means disabled within the meaning of Internal Revenue Code of 1986, as amended (“Code”), section 409A and regulations promulgated thereunder.
Resignation. Upon Executive’s voluntary resignation of either the Bancorp or the Bank, unless otherwise agreed to in writing by the Bancorp and the Bank, Executive agrees to deliver to the Bancorp and to the Bank written notice of such voluntary resignation at least 60 days in advance of his resignation accompanied by a letter of resignation to resign immediately from each of the Board and the Bank Board.
Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred when any of the following events take place:
| (a) | A Change In Ownership Of The Bancorp. A change in ownership of the Bancorp occurs on the date that any person (or group of persons) acquires ownership of stock of the Bancorp that, together with stock held by such person or group, constitutes more than fifty percent (50%) of the total fair market value or total voting power of the stock of the Bancorp. |
| (b) | A Change in Effective Control of the Bancorp. A change in effective control of the Bancorp occurs on the date that: |
| 1. | Any person (or group of persons) acquires (or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Bancorp possessing thirty-five percent (35%) or more of the total voting power of the stock of the Bancorp; or |
| 2. | A majority of members of the Board is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election. |
| (c) | A Change in Ownership of a Substantial Portion of the Bancorp’s Assets. A change in the ownership of a substantial portion of the Bancorp’s assets occurs on the date that any person (or group of persons) acquires (or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such person or persons) assets from the Bancorp that have a total gross fair market value equal to, or more than, forty percent (40%) of the total gross fair market value of all of the assets of the Bancorp immediately prior to such acquisition or acquisitions. |
| 7. | PAYMENT UPON TERMINATION. Upon termination of Executive’s employment for any of the reasons set forth in Section 6 above, Executive will receive payment for all Base Salary and paid time off and other benefits accrued as of the date of Executive’s termination (“Earned Compensation”), which shall be paid no later than the end of the business day of such termination unless an earlier time is required by applicable law, in which case it shall be paid at such earlier time. In the event of termination for death or Disability, Executive’s estate or Executive, respectively shall receive in addition to Earned Compensation, accrued paid time off and medical insurance coverage for Executive and/or Executive’s dependents, as applicable for three months following the date of death or Disability at Bank’s expense. In the event of Executive’s resignation with proper notice, Executive shall receive in addition to Earned Compensation, accrued paid time off and medical insurance coverage for Executive and Executive’s dependents for three months following the date of resignation at Bank’s expense. In the event of Executive’s termination of employment for Cause or resignation without proper notice, Executive shall receive Earned Compensation and any accrued paid time off to the date of resignation. |
| 8. | SEVERANCE BENEFIT. In the event of Executive’s termination Without Cause prior to the first anniversary of this Agreement, in addition to receiving Earned Compensation, Executive will receive a severance benefit equal to 12 months of Base Salary, based on Executive’s Base Salary just prior to termination (the “Severance Benefit”). Receipt of the Severance Benefit is conditioned on Executive having executed the Separation Agreement in substantially the form attached hereto as Exhibit A and the revocation period having expired without Executive having revoked the Separation Agreement. The Severance Benefit shall be paid in a lump sum no later than 8 calendar days after the Executive signs such Separation Agreement, except if such payment is required to be delayed pursuant to Section 15 herein. Executive shall not be required to mitigate the amount of any payments under this Section (whether by seeking new employment or otherwise), and the amount of Severance Benefits shall not be reduced by any income or funds that Executive may receive from another party. In addition to any Severance Benefit paid by the Bank, the Executive shall receive medical insurance coverage for Executive and Executive’s dependents for eighteen months following the date of termination without Cause at Bank’s expense. |
The Employer and Executive acknowledge that (i) limitations on the deductibility by the Employer for certain Change of Control and other payments for federal income tax purposes may be imposed under, but not limited to Code Section 280G, and any successor to Section 280G of the Code and (i) limitations on payments by the Employer may be imposed by Section 111 of the Emergency Economic Stabilization Act of 2008 (“EESA”) and regulations promulgated thereunder. The severance benefit payment provided in this Section 8 to the extent covered under Section 280G of the Code shall be limited to such amount that results in the greatest amount of the payment that is deductible by the Employer for federal income tax purposes after taking into account all other compensation payments to or for the benefit of the Executive that are included in determining the deductibility of such payments under Section 280G of the Code or any successor to Section 280G of the Code.
Furthermore, in the event the total compensation payments to or for the benefit of Executive pursuant to this Agreement and other agreements, plans or arrangements, results in the limitation of the deductibility by the Employer of such payments under Section 280G or any successor to Section 280G of the Code, or to the extent prohibited by Section 111 of the Emergency Economic Stabilization Act of 2008 (“EESA”) and regulations promulgated thereunder then any payment under this Section 8 shall be reduced to the extent that such payment when made would result not in the loss of deductibility by the Employer or be a violation by the Employer of Section 111 of EESA.
Receipt of the benefits provided in this section are conditioned on Executive having executed the Separation Agreement in substantially the form attached hereto as Exhibit A and the revocation period having expired without Executive having revoked the Separation Agreement.
| 9. | CHANGE IN CONTROL BENEFIT. After a Change in Control that occurs during the term of this Agreement or within 120 days after the first anniversary of the Effective Date, if either (i) the Executive is not retained by the resulting corporation for a period of 24 months in a position comparable to that of an executive vice president of the resulting corporation or a position with the resulting corporation that is acceptable to Executive, or (ii) the resulting company reduces Executive’s Base Salary from Executive’s Base Salary immediately prior to the Change in Control at any time during the 24 month period immediately following the consummation of the Change in Control (either event shall constitute a “Triggering Event”), then Executive shall be paid the 24 months of Executive’s Base Salary, based on Executive’s Base Salary just prior to the Change in Control (“Change in Control Benefit”) plus 2 times the average annual bonus paid to Executive over the most recent previous two complete calendar years. Executive shall also be entitled to any Earned Compensation in addition to the Change in Control Benefit upon a Triggering Event. The Change in Control Benefit and Earned Compensation shall be paid to Executive in a lump sum within 5 calendar days following the Triggering Event, except if such payment is required to be delayed pursuant to Section 15 herein. |
In addition to any benefit paid by the Employer under this section, the Executive and Executive’s dependents shall be provided at the Employer’s cost coverage under the medical insurance benefit program sponsored by the Bank for employees for a period of the lesser of 24 months or the maximum applicable continuation coverage period under the Consolidated Omnibus Budget Reconciliation Act of 1985 following termination, provided that his continuation in such benefit program is possible under the terms and provisions of such benefit plan and program. In the event the maximum applicable continuation coverage period under the Consolidated Omnibus Budget Reconciliation Act of 1985 is less than 24 months or Executive’s continuation in such program is not possible under the terms and provisions of such benefit plan and program, then the Employer shall arrange to provide Executive with the cash equivalent of such benefit for the remaining period between the end of the maximum applicable continuation coverage period under COBRA and 24 months following Executive’s termination of employment or for the term during such 24 months after termination Executive’s continuation in such program is not possible under the terms and provisions of such benefit plan and program.
The Employer and Executive acknowledge that (i) limitations on the deductibility by the Employer for certain Change of Control and other payments for federal income tax purposes may be imposed under, but not limited to Code Section 280G, and any successor to Section 280G of the Code and (i) limitations on payments by the Employer may be imposed by Section 111 of the Emergency Economic Stabilization Act of 2008 (“EESA”) and regulations promulgated thereunder. The Change in Control benefit payment provided in this Section 9 to the extent covered under Section 280G of the Code shall be limited to such amount that results in the greatest amount of the payment that is deductible by the Employer for federal income tax purposes after taking into account all other compensation payments to or for the benefit of the Executive that are included in determining the deductibility of such payments under Section 280G of the Code or any successor to Section 280G of the Code.
Furthermore, in the event the total compensation payments to or for the benefit of Executive pursuant to this Agreement and other agreements, plans or arrangements, results in the limitation of the deductibility by the Employer of such payments under Section 280G or any successor to Section 280G of the Code, or to the extent prohibited by Section 111 of the Emergency Economic Stabilization Act of 2008 (“EESA”) and regulations promulgated thereunder then any payment under this Section 9 shall be reduced to the extent that such payment when made would result not in the loss of deductibility by the Employer or be a violation by the Employer of Section 111 of EESA.
Receipt of the benefits provided in this section are conditioned on Executive having executed the Separation Agreement in substantially the form attached hereto as Exhibit A and the revocation period having expired without Executive having revoked the Separation Agreement.
| 10. | CONFIDENTIAL INFORMATION. The parties acknowledge that in the course of Executive’s duties, Executive will have access to and become knowledgeable with certain proprietary and confidential information of the Bank, Bancorp and Bancorp’s subsidiaries not known by its existing or potential competitors. Executive acknowledges that such information constitutes valuable, special, and unique assets of the business of Bank, Bancorp and Bancorp’s subsidiaries. Executive agrees to hold in a fiduciary capacity, not use for Executive’s benefit, and not disclose, communicate, or divulge in any manner during the period of Executive’s employment with Employer or at any time thereafter, any such data and confidential information of any kind, nature, or description concerning any matters affecting or relating to Employer’s businesses, customers, or services. Executive agrees that all memoranda, notes, records, papers, customer files, other documents, and all copies thereof relating to Employer’s operations or businesses or matters related to any of Employer’s customers, some of which may be prepared by Executive along with all media, electronic or otherwise associated therewith containing such confidential information held by or in the control of Executive, shall be the Bank’s property or the Bancorp’s property, respectively (collectively referred to as “Property”). Upon termination of employment, Executive shall promptly return all Property to the Bank or Bancorp, as appropriate. |
| 11. | DISPUTE RESOLUTION. Except where such matters are deemed governed by ERISA, the parties agree to submit any dispute arising under this Agreement to final, binding, private arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction in Sacramento, California. This includes not only disputes about the meaning or performance of the Agreement, but disputes about its negotiation, drafting, or execution. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction. There shall be three arbitrators, one to be chosen directly by each party, and the third arbitrator to be selected by the two arbitrators so chosen. If any arbitration proceeding is brought for the enforcement of this Agreement or because of an alleged dispute, breach or default in connection with this Agreement, (i) the nonprevailing party shall pay the fees of the arbitrators and all other costs of the arbitration, including the cost of any record or transcripts of the arbitrations and administrative fees; and (ii) the prevailing party shall be entitled to recover reasonable attorney’s fees and any other costs and expenses incurred in that action or proceeding, in addition to any other relief to which it or he may be entitled. |
| 12. | NOTICES. All notices, requests, demands, and other communications provided for by this Agreement will be in writing and shall be deemed sufficient upon receipt, when delivered personally or by a nationally-recognized delivery service (such as Federal Express), or three (3) business days after being deposited in the U.S. mail as certified mail, return receipt requested, with postage prepaid, if such notice is addressed to the party to be notified at such party’s address as set forth below or as subsequently modified by written notice. |
| To Employer: | Plumas Bank 00 X. Xxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx 00000 Attention: Chairman |
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| To Executive: | Xxxxxxx X. Xxxxxx 000 Xxxxxxxx Xxxxx Xxxxxx, XX 00000 |
| 13. | GENERAL PROVISIONS. |
Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by federal ERISA, as applicable, and otherwise by the laws of the State of California.
Saving Provision. If any part of this Agreement is held to be unenforceable, it shall not affect any other part. If any part of this Agreement is held to be unenforceable as written, it shall be enforced to the maximum extent allowed by applicable law.
Survival Provision. The confidential information and dispute resolution provisions of this Agreement shall survive after termination of this Agreement, and shall be enforceable regardless of any claim Executive may have against Employer. Also, if any benefits provided in Section 8 of this Agreement are still owed, or obligations or claims pursuant to Section 10 or 11 are still pending, at the time of termination of this Agreement, this Agreement shall continue in force, with respect to those obligations or claims, until such benefits are paid in full or claims are resolved in full. The obligation in Section 10 shall survive this Agreement for an indefinite period.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
Entire Agreement. This Agreement constitutes the sole agreement of the parties regarding Executive’s benefits in the event of termination or Change in Control and together with Bank’s employee handbook governs the terms of Executive’s employment, except with respect to Executive’s stock options, salary continuation agreement and split dollar agreement with Employer. Where there is a conflict between the employee handbook and this Agreement, the terms of this Agreement shall govern.
Previous Agreements. This Agreement replaces and supersedes all prior oral and written agreements between the Executive and Employer, or any affiliates or representatives of Employer regarding the subject matters set forth herein.
Waiver. No waiver of any provision of this Agreement shall be valid unless in writing, signed by the party against whom the waiver is sought to be enforced. The waiver of any breach of this Agreement or failure to enforce any provision of this Agreement shall not waive any later breach.
Assignment. Executive shall not assign or transfer any of Executive’s rights pursuant to this Agreement, wholly or partially, to any other person or to delegate the performance of its duties under the terms of this Agreement. The rights and obligations of the Bancorp and the Bank under this Agreement shall inure to the benefit of and be binding in each and every respect upon the direct and indirect successors and assigns of the Bancorp or the Bank, regardless of the manner in which the successors or assigns succeed to the interests or assets of the Bancorp or the Bank, respectively. This Agreement shall not be terminated by the voluntary or involuntary dissolution of the Bancorp or the Bank, by any merger, consolidation or acquisition of the Bancorp where Bancorp is not the surviving corporation, by any transfer of all or substantially all of Bancorp’s assets, or by any other change in Bancorp’s structure or the manner in which Bancorp’s business or assets are held. Executive’s employment shall not be deemed terminated upon the occurrence of one of the foregoing events. In the event of any merger, consolidation or transfer of assets, this Agreement shall be binding upon and shall inure to the benefit of the surviving corporation or the corporation to which the assets are transferred.
Attorneys’ Fees. If either party institutes a proceeding to enforce its rights under, or to recover damages for breach of, this Agreement, the prevailing party shall be awarded all costs and expenses of the proceeding, including, but not limited to, attorneys’ fees, filing and service fees, witness fees, and arbitrator’s fees. If arbitration is commenced, the arbitrator will have full authority and complete discretion to determine the “prevailing party” and the amount of costs and expenses to be awarded under this paragraph.
| 14. | ADVICE OF COUNSEL. TERMS AND PROVISIONS OF THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF. |
| 15. | COMPLIANCE WITH SECTION 409A OF THE CODE. If the Executive is a key employee of the Bancorp as defined in Section 416(i) (without regard to paragraph 5 thereof) of the Code and if any stock of the Bancorp publicly traded on an established securities market or otherwise and to the extent no exception is available under Code Section 409A and regulations promulgated thereunder, then the benefit payments to Executive pursuant to Section 8 and 9 of this Agreement following Executive’s separation of service for any reason other than death shall be deferred for a period of at least six months after the date of separation of service at which time the first payment of such benefit payment shall on the first day of the seventh month following the date of Executive’s separation of service and be equal to the amount of payments that would have otherwise been paid to Executive if Executive were not a key employee. |
The term “separation from service” means the Executive’s service as an executive and/or independent contractor to the Employer and any member of a controlled group that includes Employer, as defined in Code section 414, terminates for any reason, other than because of a leave of absence approved by the Bancorp, Disability or the Executive’s death. Whether a separation from service takes place is determined based (i) on the facts and circumstances surrounding the termination of the Executive’s employment, (ii) whether the Employer and the Executive intended for the Executive to provide significant services for the Employer following such termination and (iii) the application of facts and circumstances in view of the presumptions contained in the regulations to section 409A of the Code. For purposes of this Agreement, if there is a dispute about the employment status of the Executive or the date of the Executive’s separation from service, the Employer shall have the sole and absolute right to decide the dispute.
This Agreement shall at all times be administered in compliance with the requirements of §409A of the Code and any and all regulations thereunder, including such regulations as may be promulgated after the effective date of this Agreement.
| PLUMAS BANK AND PLUMAS BANCORP | EXECUTIVE | |
By: Xxxxxx Xxxx, Chairman |
Xxxxxxx X. Xxxxxx |
EXHIBIT A
EMPLOYMENT SEPARATION AGREEMENT
AND RELEASE OF CLAIMS
This is a confidential agreement between you, Xxxxxxx X. Xxxxxx, and us, Plumas Bancorp and Plumas Bank (collectively “Employer”). This agreement is dated for reference purposes , 20 , which is the date we delivered this agreement to you for your consideration. For purposes of this Agreement Plumas Bancorp together with each of its subsidiaries or affiliates is referred to as “Bancorp.”
| 1. | TERMINATION OF EMPLOYMENT. Your employment terminates [or was terminated] on , 20 (the “Separation Date”). |
| 2. | PAYMENTS. In exchange for your agreeing to the release of claims and other terms in this agreement, we will pay you the Severance Benefit specified in Section 8 of the Employment Agreement between you and Employer dated as of February 18, 2009 (the “Employment Agreement”). You acknowledge that we are not obligated to make this payment to you unless you agree to comply with the terms of this agreement. |
| 3. | COBRA CONTINUATION COVERAGE. Unless provided as stipulated in Section 8 of the Employment Agreement, your normal employee participation in Bank’s group health coverage will terminate three months following your termination (“Separation Date”). Continuation of group health coverage thereafter will be made available to you and your dependents pursuant to federal law (COBRA). As long as you timely elect COBRA continuation coverage, Bank will waive the requirement that you pay for the cost of continuation coverage through the Separation Date. Continuation of group health coverage thereafter is entirely at your expense, as provided under COBRA. |
| 4. | TERMINATION OF BENEFITS. Except as provided in paragraph 3 above, your participation in all employee benefit plans and programs ended on the Separation Date. Your rights under any pension benefit or other plans in which you may have participated will be determined in accordance with the written plan documents governing those plans. |
| 5. | FULL PAYMENT. You acknowledge having received full payment of all compensation of any kind (including wages, salary, vacation, sick leave, commissions, bonuses and incentive compensation) that you earned as a result of your employment by Bank, except as may be deferred pursuant to section 15 of the Agreement. |
| 6. | NO FURTHER COMPENSATION. Any and all agreements to pay you bonuses or other incentive compensation are terminated, except for any payments earned during active employment as determined in accordance with the written plan documents governing those plans. You understand and agree that you have no right to receive any further payments for bonuses or other incentive compensation, except as contained therein. Neither the Bancorp nor the Bank owes no further compensation or benefits of any kind, except as described above. |
| 7. | RELEASE OF CLAIMS. |
| (a) | You hereby release (i) Bancorp, its subsidiaries, affiliates, and benefit plans, (ii) each of Bancorp’s past and present shareholders, Executives, directors, agents, employees, representatives, administrators, fiduciaries and attorneys, and (iii) the predecessors, successors, transferees and assigns of each of the persons and entities described in this sentence, from any and all claims of any kind, known or unknown, that arose on or before the date you signed this agreement. |
| (b) | The claims you are releasing include, without limitation, claims of wrongful termination, claims of constructive discharge, claims arising out of employment agreements, representations or policies related to your employment, claims arising under federal, state or local laws or ordinances prohibiting discrimination or harassment or requiring accommodation on the basis of age, race, color, national origin, religion, sex, disability, marital status, sexual orientation or any other status, claims of failure to accommodate a disability or religious practice, claims for violation of public policy, claims of retaliation, claims of failure to assist you in applying for future position openings, claims of failure to hire you for future position openings, claims for wages or compensation of any kind (including overtime claims), claims of tortious interference with contract or expectancy, claims of fraud or negligent misrepresentation, claims of breach of privacy, defamation claims, claims of intentional or negligent infliction of emotional distress, claims of unfair labor practices, claims arising out of any claimed right to stock or stock options, claims for attorneys’ fees or costs, and any other claims that are based on any legal obligations that arise out of or are related to your employment relationship with us. |
| (c) | You specifically waive any rights or claims that you may have under the California Labor Code, the Civil Rights Act of 1964 (including Title VII of that Act), the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967 (ADEA), the Americans with Disabilities Act of 1990 (ADA), the Fair Labor Standards Act of 1938 (FLSA), the Family and Medical Leave Act of 1993 (FMLA), the Worker Adjustment and Retraining Notification Act (WARN), the Employee Retirement Income Security Act of 1974 (ERISA), the National Labor Relations Act (NLRA), and all similar federal, state and local laws. |
| (d) | You agree not to seek any personal recovery (of money damages, injunctive relief or otherwise) for the claims you are releasing in this agreement, either through any complaint to any governmental agency or otherwise. You agree not to start any lawsuit or arbitration asserting any of the claims you are releasing in this agreement. You represent and warrant that you have not initiated any complaint, charge, lawsuit or arbitration involving any of the claims you are releasing in this agreement. You agree not to apply for future employment with the Bancorp of the Bank and that neither the Bancorp nor the Bank has any obligation to consider you for future employment. |
| (e) | You represent and warrant that you have all necessary authority to enter into this agreement (including, if you are married, on behalf of your marital community) and that you have not transferred any interest in any claims to your spouse or to any third party. |
| (f) | This agreement does not affect your rights, if any, to receive pension plan benefits, medical plan benefits, unemployment compensation benefits or workers’ compensation benefits. This agreement also does not affect your rights, if any, under agreements, bylaw provisions, insurance or otherwise, to be indemnified, defended or held harmless in connection with claims that may be asserted against you by third parties. |
| (g) | You understand that you are releasing potentially unknown claims, and that you have limited knowledge with respect to some of the claims being released. You acknowledge that there is a risk that, after signing this agreement, you may learn information that might have affected your decision to enter into this agreement. You assume this risk and all other risks of any mistake in entering into this agreement. You agree that this release is fairly and knowingly made. |
| (h) | You are giving up all rights and claims of any kind, known or unknown, except for the rights specifically given to you in this agreement. |
| 8. | NO ADMISSION OF LIABILITY. Neither this agreement nor the payments made under this agreement are an admission of liability or wrongdoing by the Bancorp or the Bank. |
| 9. | BANK AND BANCORP MATERIALS. You represent and warrant that you have, or no later than the Separation Date will have, returned all keys, credit cards, documents and other materials that belong to the Bancorp or the Bank. |
| 10. | NONDISCLOSURE AGREEMENT. You will comply with the covenant regarding confidential information in Section 10 of the Employment Agreement. |
| 11. | NO DISPARAGEMENT. You may not disparage the Bancorp, the Bank or the Bancorp’s or Bank’s businesses or products, and may not encourage any third parties to xxx or bring a claim against the Bancorp or the Bank. |
| 12. | COOPERATION REGARDING OTHER CLAIMS. If any claim is asserted by or against the Bancorp or the Bank as to which you have relevant knowledge, you will reasonably cooperate with us in the prosecution or defense of that claim, including by providing truthful information and testimony as reasonably requested by us. |
| 13. | NO INTERFERENCE. You will not, apart from good faith competition, interfere with Bancorp’s relationships with customers, employees, vendors, or others. |
| 14. | INDEPENDENT LEGAL COUNSEL. You are advised and encouraged to consult with an attorney before signing this agreement. You acknowledge that you have had an adequate opportunity to do so. |
| 15. | CONSIDERATION PERIOD. You have 21 days from the date this agreement is given to you to consider this agreement before signing it. You may use as much or as little of this 21-day period as you wish before signing. If you do not sign and return this agreement within this 21-day period, you will not be eligible to receive the benefits described in this agreement. |
| 16. | REVOCATION PERIOD AND EFFECTIVE DATE. You have 7 calendar days after signing this agreement to revoke it. To revoke this agreement after signing it, you must deliver a written notice of revocation to Bank’s Chairman before the 7-day period expires. This agreement shall not become effective until the 8th calendar day after you sign it. If you revoke this agreement it will not become effective or enforceable and you will not be entitled to the benefits described in this agreement. |
| 17. | GOVERNING LAW. This agreement is governed by the laws of the State of California that apply to contracts executed and to be performed entirely within the State of California. |
| 18. | DISPUTE RESOLUTION. Except where such matters are deemed governed by ERISA, the parties agree to submit any dispute arising under this agreement to final, binding, private arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction in Sacramento, California. This includes not only disputes about the meaning or performance of the agreement, but disputes about its negotiation, drafting, or execution. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction. There shall be three arbitrators, one to be chosen directly by each party, and the third arbitrator to be selected by the two arbitrators so chosen. If any arbitration proceeding is brought for the enforcement of this agreement or because of an alleged dispute, breach or default in connection with this agreement, (i) the nonprevailing party shall pay the fees of the arbitrators and all other costs of the arbitration, including the cost of any record or transcripts of the arbitrations and administrative fees; and (ii) the prevailing party shall be entitled to recover reasonable attorney’s fees and any other costs and expenses incurred in that action or proceeding, in addition to any other relief to which it or he may be entitled. |
| 19. | ATTORNEYS’ FEES. If either party institutes a proceeding to enforce its rights under, or to recover damages for breach of, this agreement, the prevailing party shall be awarded all costs and expenses of the proceeding, including, but not limited to, attorneys’ fees, filing and service fees, witness fees, and arbitrator’s fees. If arbitration is commenced, the arbitrator will have full authority and complete discretion to determine the “prevailing party” and the amount of costs and expenses to be awarded under this paragraph. |
| 20. | FINAL AND COMPLETE AGREEMENT. This agreement is the final and complete expression of all agreements between us on all subjects and supersedes and replaces all prior discussions, representations, agreements, policies and practices. You acknowledge you are not signing this agreement relying on anything not set out herein. |
PLUMAS BANK AND PLUMAS BANCORP
By:
Xxxxxx Xxxx, Chairman
I, THE UNDERSIGNED, HAVING BEEN ADVISED TO CONSULT WITH AN ATTORNEY, HEREBY AGREE TO BE BOUND BY THIS AGREEMENT AND CONFIRM THAT I HAVE READ AND UNDERSTOOD EACH PART OF IT.
Xxxxxxx X. Xxxxxx
Date
