EXHIBIT 99.115
EMPLOYMENT AGREEMENT
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This Employment Agreement ("Agreement") is entered into effective as of
January 1, 2006, by and between North Valley Bancorp, a California corporation
("NV Bancorp" or "Employer"), and Xxx X. Xxxxxx, an individual ("Employee").
This Employment Agreement amends and supersedes the previous Employment
Agreement dated December 31, 2003. The parties agree as follows:
AGREEMENT
1. At-Will Employment. Subject to the provisions of Section 12
below, Employer employs Employee and Employee hereby accepts employment with
Employer. Employee's employment with Employer shall be "at will", which means
that either Employee or Employer may terminate this employment relationship at
any time, with or without cause.
2. Duties and Obligations of Employee. Employee shall serve as
the General Counsel and Corporate Secretary of Employer. In addition, Employee
shall serve as the General Counsel and Corporate Secretary of Employer's
subsidiaries, including NVB Business Bank, North Valley Bank, and Bank
Processing, Inc. Employee shall perform the customary duties of such office in
the commercial banking industry, and such other duties as may from time to time
be requested of him by the respective Boards of Directors or Employer,
including, without limitation, the following:
(a) Administering and coordinating the Employer's Legal
Department and providing legal services to Employer and its
subsidiaries.
(b) Maintaining a professional relationship with
regulatory agencies and governmental authorities having jurisdiction
over Employer and its subsidiary banks; and
(c) Assisting in planning and implementing the conduct of
Employer's and its subsidiaries' business and in setting the strategic
objectives of Employer and its subsidiaries.
3. Devotion to Employer's Business. Employee shall, except as
provided below, devote his full time, ability, and attention to the business of
Employer and shall not engage in any other business activities, duties, or
pursuits whatsoever, or directly or indirectly render any services of a
business, commercial, or professional nature to any other person or
organization, whether for compensation or otherwise, without the prior approval
of Employer's President. Further, the expenditure of reasonable amounts of time,
for which Employee shall not be compensated by Employer, for educational,
charitable, professional activities, or personal investments shall not be deemed
a breach of this Agreement if those activities do not materially interfere with
the services required of Employee under this Agreement.
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Employment Agreement
North Valley Bancorp /Xxx X. Xxxxxx
Dated: January 1, 2006
Form Revised 7/07/06
4. Noncompetition by Employee. Employee shall not, directly or
indirectly, either as an employee, employer, consultant, agent, principal,
stockholder, officer, director, member or in any other individual or
representative capacity, engage or participate in any business that is in
competition with the business of Employer. Nothing in this Agreement shall be
interpreted to prohibit Employee from making passive personal investments so
long as such interests do not create a conflict of interest with the Employer.
However, Employee shall not directly or indirectly acquire, hold, or retain any
material interest in any business competing with or similar in nature to the
business of Employer.
5. Indemnification.
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(a) Employee shall indemnify and hold Employer harmless
from all liability for loss, damage, or injury to persons or property
resulting from the gross negligence or intentional misconduct of the
Employee.
(b) Employer shall indemnify Employee pursuant to the
terms of that certain Indemnification Agreement between Employer and
Employee dated May 28, 2004.
6. Confidential Information; Nondisclosure of Information.
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(a) Confidential Information. Employer has and will
develop and own certain Confidential Information, which has a great
value in its business. Employer also has and will have access to
Confidential Information of its customers. "Customers" shall mean any
persons or entities for whom Employer performs services or from whom
Employer obtains information. Confidential Information includes
information disclosed to Employee during the course of his employment,
and information developed or learned by Employee during the course of
his employment. Confidential Information is broadly defined and
includes all information which has or could have commercial value or
other utility in Employer's business or the businesses of Employer's
customers. Confidential Information also includes all information which
could be detrimental to the interests of Employer or its customers if
it were disclosed. By example and without limitation, Confidential
Information includes all information concerning loan information,
Customer data, including but not limited to Customer and supplier
identities, Customer characteristics or agreements and Customer lists,
applicant data, employment categories, job classifications, employment
histories, job analyses and validations, preferences, credit history,
agreements, and any personally identifiable information related to
Customers, or Customer's employees, customers or clients, including
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Employment Agreement
North Valley Bancorp /Xxx X. Xxxxxx
Dated: January 1, 2006
Form Revised 7/07/06
names, addresses, phone numbers, account numbers and social security
numbers; any information provided to Employee by a Customer, including
but not limited to electronic information, documents, software, and
trade secrets; historical sales information; advertising and marketing
materials and strategies; financial information related to Employer,
Customers, Customer's employees or any other party; labor relations
strategies; research and development strategies and results, including
new materials research; pending projects and proposals; production
processes; scientific or technological data, formulae and prototypes;
employee data, including but not limited to any personally identifiable
information related to employees, and co-workers, their spouse-partner
and/or family members such as names, addresses, phone numbers, account
numbers, social security numbers, employment history, credit
information, and the compensation of co-workers; anything contained in
another employee's personnel file; individually identifiable health
information of other employees, and co-workers, their spouse-partner
and/or family members, Customers, or any other party, including but not
limited to any information related to a physical or mental health
condition, the provision of health care, the payment of health care, or
any information received from a health care provider, health care plan
or related entity; pricing and product information; computer data
information; inventory levels and products; supplier information and
data; testing techniques; processes; formulas; trade secrets;
inventions; discoveries; improvements; specifications; data, know-how,
and formats; marketing plans; pending projects and proposals; business
plans; computer processes; computer programs and codes; technological
data; strategies; forecasts; budgets; and projections.
(b) Protection of Confidential Information. Employee
agrees that at all times during and after his employment by Employer,
Employee will keep confidential and not disclose to any third party or
make any use of the Confidential Information of Employer or its
customers, except for the benefit of Employer or its customers and in
the course of his employment. In the event Employee is required by law
to disclose such information described in this paragraph 6, Employee
will provide Employer and its legal counsel with immediate notice of
such request so that Employer may consider seeking a protective order.
For purposes of this Agreement, the disclosure of any Confidential
Information at any time except as required by law shall be considered
to be "unfair competition". Employee also agrees not to remove or
permit the removal of Confidential Information from Employer's place of
business without the express written authorization of an Officer of
Employer or its authorized representative. Employee acknowledges that
he is aware that the unauthorized disclosure of Confidential
Information of Employer or its customers may be highly prejudicial to
their interests, an invasion of privacy, and an improper disclosure of
trade secrets and financial information in violation of state and
federal law.
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Employment Agreement
North Valley Bancorp /Xxx X. Xxxxxx
Dated: January 1, 2006
Form Revised 7/07/06
(c) No Prior Commitments. Employee has no other
agreements, relationships, or commitments to any other person or entity
that would conflict with Employee's obligations to Employer under this
Agreement. Employee will not disclose to Employer or use or induce
Employer to use, any proprietary information or trade secrets of
others. Employee represents and warrants that he has returned all
property and confidential information belonging to all other prior
employers.
(d) Return of Property. In the event Employee's
employment with Employer is terminated (voluntarily or otherwise),
Employee agrees to inform Employer of all documents and other data
relating to his employment which is in his possession and control and
to deliver promptly all such documents and data to Employer.
(e) Sanctions for Unauthorized Taking of Trade Secrets.
Employee understands that taking of Employer's trade secrets is a crime
under California Penal Code section 449(c) and could also result in
civil liability under California's Uniform Trade Secrets Act (Civil
Code sections 3426-3426.11), and that willful misappropriation may
result in an award against Employee of triple the amount the Employer's
damages and Employer's attorney fees for collecting such damages.
(f) Obligations Following Termination. After termination
of employment (whether voluntary or otherwise), Employee will continue
to protect Employer's Confidential Information, and in order to do so
will not, either directly or indirectly for a period of two (2) years
after termination of employment, (i) employ or attempt to employ any
other employee of the Employer while the other employee is employed by
the Employer; (ii) advise or recommend to any other person that such
other person employ or attempt to employ any other employee of Employer
while the other employee is employed by Employer; (iii) induce or
attempt to induce any other employee of the Employer to quit the
Employer; (iv) interfere with the business of Employer by inducing any
other individual or entity to sever its relationship with Employer or
(v) solicit any Customers or potential Customers of Employer for
services similar to those performed by Employer, even if such services
are not directly competitive with Employer's services.
(g) Injunctive Relief. Employee acknowledges that breach
of this Section may cause Employer irreparable harm for which money is
inadequate compensation. Employee therefore agrees that Employer will
be entitled to injunctive relief to enforce this Section and this
Agreement, in addition to damages and other available remedies, and
Employee consents to such injunctive relief pursuant to Section 14
below.
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Employment Agreement
North Valley Bancorp /Xxx X. Xxxxxx
Dated: January 1, 2006
Form Revised 7/07/06
7. Written or Printed Material. All written or printed materials,
notebooks and records and all electronic media including, without limitation,
computer disks used by Employee in performing duties for Employer, are and shall
remain the sole property of Employer. Upon termination of employment, Employee
shall promptly return all such material (including all copies, extracts and
summaries) to Employer. This paragraph 7 shall survive expiration or termination
of this Agreement.
8. Surety Bond. Employee agrees that he will furnish all
information and take any other steps necessary from time to time to enable
Employer to obtain or maintain a fidelity bond conditional on the rendering of a
true account by Employee of all monies, goods, or other property which may come
into the custody, charge, or possession of Employee during his employment. The
surety company issuing the bond and the amount of the bond must be acceptable to
Employer. All premiums on the bond shall be paid by Employer. If Employee cannot
qualify for a surety bond at any time during this Agreement, Employer shall have
the option to terminate this Agreement immediately without any obligation to pay
severance benefits to Employee in accordance with paragraph 12(d) of this
Agreement.
9. Compensation.
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(a) Base Salary. In consideration for the services to be
performed hereunder, Employee shall receive a salary at the rate of One
Hundred Sixty-Three Thousand Nine Hundred Fifty Dollars ($163,950.00)
per year, payable in accordance with Employer's payroll practices,
subject to applicable adjustments for withholding taxes and prorations
for any partial employment period. Employee shall receive such annual
adjustments in salary, if any, as may be determined by Employer's
President and Chief Executive Officer, in consultation with the Board
of Directors of Employer, simultaneously with the review of all other
executive officers.
(b) Annual Incentive Bonus. Employee shall be eligible to
be considered for an annual incentive bonus. Any bonus given shall be
at the sole discretion of Employer's Board of Directors and President
and Chief Executive Officer.
(c) Stock Option Plan. Employee shall be eligible to
participate in a Stock Option Program for the purchase of shares of the
Common Stock of Employer, pursuant to the terms of Employer's 1998
Employee Stock Incentive Plan ("1998 Plan"). Employer's 1998 Plan and
Long Term Incentive Plan may be modified or terminated by Employer's
Board of Directors from time to time. Any grants, vesting schedules, or
other terms and conditions of the stock option shall be consistent with
the 1998 Plan, as modified from time to time, and shall be evidenced by
Stock Option Agreements entered into between Employer and Employee.
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Employment Agreement
North Valley Bancorp /Xxx X. Xxxxxx
Dated: January 1, 2006
Form Revised 7/07/06
(d) Nonqualified Retirement Plans. Employee shall be
eligible to participate in both the Executive Salary Continuation
Agreement and the Executive Deferred Compensation Plan, as such
agreement or plan may be amended from time to time by Employer's Board
of Directors and as determined by the President and Chief Executive
Officer.
10. Other Benefits. Employee shall be entitled to those employee
benefits adopted by Employer for all employees of Employer, subject to
applicable qualification requirements and regulatory approval requirements, if
any. Employee shall be further entitled to the following additional benefits
which shall supplement or replace, to the extent duplicative of any part or all
of the general employee benefits, the benefits otherwise provided to Employee:
(a) Vacation. Employee shall be entitled to four (4)
weeks annual vacation leave at his then existing rate of Base Salary
each year. Employee may be absent from employment for vacation as long
as such leave is reasonable and does not jeopardize Employee's
performance of the responsibilities and duties specified in this
Agreement. The length of vacation should not exceed two (2) weeks
without the approval of Employer. Vacation time, if any, shall be
determined in accordance with Employer's personnel policies.
11. Business Expenses. Employee shall be reimbursed for all
ordinary and necessary expenses incurred by Employee in connection with his
employment subject to expense account guidelines established by the Board of
Directors of Employer. Employee shall also be reimbursed for reasonable expenses
incurred in activities associated with promoting the business of Employer,
including expenses for entertainment, travel, conventions, educational programs,
club memberships with the prior approval by Employer's President and Chief
Executive Officer or Board of Directors. Employer will pay for or will reimburse
Employee for such expenses upon presentation by Employee of receipts or other
appropriate evidence of such expenditures.
12. Termination of Agreement.
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(a) Termination by Employer For Cause. Employer may
terminate this Agreement immediately upon any of the following events:
(i) Employee's death;
(ii) Employee's disability;
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Employment Agreement
North Valley Bancorp /Xxx X. Xxxxxx
Dated: January 1, 2006
Form Revised 7/07/06
(iii) Employee's commission of acts of material
dishonesty, fraud, misrepresentation or
moral turpitude such that Employer's
reputation would be harmed;
(iv) Employee's failure to reasonably perform
Employee's duties as described in Employee's
job description as modified by Employer from
time to time;
(v) Employer's determination that other "good
cause" exists to terminate Employee;
(vi) Employee's refusal or neglect to comply with
any lawful or reasonable order given to
Employee by Employer;
(vii) Any material breach of this Agreement by
Employee;
(viii) The occurrence of circumstances that make it
impossible or impractical for Employer to
conduct or continue its business, or the
loss by Employer of legal capacity to
contract.
(b) Other Termination by Employer. Employer may, at its
election and in its sole discretion, terminate this Agreement for no
cause, by giving thirty (30) days' prior written notice of termination
to Employee, without prejudice to any other remedy to which Employer
may be entitled either at law, in equity or under this Agreement. Upon
such termination, Employee shall be entitled to receive any employment
benefits which shall have accrued prior to such termination and the
severance pay specified in paragraph 12(d) below. If Employer
terminates Employee in breach of this Agreement, Employee's damages
shall be limited to payment of the severance in Section 12(d).
(c) Termination by Employee. This Agreement may be
terminated by Employee for any reason, or no reason, by giving thirty
(30) days' prior written notice of termination to Employer. Upon such
termination, all rights and obligations accruing to Employee under this
Agreement shall cease, except that such termination shall not prejudice
Employee's rights regarding employment benefits which shall have
accrued prior to such termination and any other remedy which Employee
may have at law, in equity or under this Agreement, which remedy
accrued prior to such termination.
(d) Severance Pay - Termination by Employer. In the event
of termination by Employer pursuant to paragraph 12(a)(viii) or 12(b)
of this Agreement, Employee shall be entitled to receive severance pay
at Employee's rate of salary immediately preceding such termination
equal to six (6) months' Base Salary, if any, payable in accordance
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Employment Agreement
North Valley Bancorp /Xxx X. Xxxxxx
Dated: January 1, 2006
Form Revised 7/07/06
with Employer's normal payroll practices. Notwithstanding the
foregoing, in the event of a "change in control" as defined in
subparagraph (e) below, Employee shall not be entitled to severance pay
pursuant to this subparagraph (d) and any rights of Employee to
severance pay shall be limited to such rights as are specified in
subparagraph (e) below. Employee acknowledges and agrees that severance
pay pursuant to this subparagraph (d) is in lieu of all damages,
payments and liabilities on account of termination of this Agreement
and is the sole and exclusive remedy for Employee terminated at the
will of Employer pursuant to paragraph 12(b) or pursuant to certain
provisions of paragraph 12 described herein, and shall be subject to
Employee's execution of a complete release of all claims Employee may
have against Employer, its officers, directors, agents, employees,
predecessors, successors, parents, subsidiaries, and affiliates
("Related Parties"). If upon termination of employment Employee chooses
to arbitrate any claims pursuant to Section 14, Employee shall be
deemed to have waived Employee's right, if any, to severance.
(e) Severance Pay - Change in Control. In the event of a
"change in control" as that term is defined in the Executive Salary
Continuation Agreement between Employer and Employee in effect from
time to time, the terms of that Executive Salary Continuation Agreement
shall apply.
(f) Termination by Employer - Section 12(a). If Employer
terminates this Agreement pursuant to Section 12(a)(iii), (iv), (v),
(vi) or (vii), Employee shall only be entitled to receive the
Employee's accrued but unpaid wages and accrued but unused vacation
through the date of termination. Employee shall not be entitled to
receive any other sums, including but not limited to pro-rated
incentive bonus or Severance, or pro-rated fringe benefits. If Employer
terminates this Agreement pursuant to Sections 12(a)(i) or (ii),
Employee or Employee's estate shall receive Employee's accrued but
unpaid wages and vacation through the date of termination, in addition
to those payments, if any, for which he is eligible pursuant to
Employer's long-term disability insurance program, life insurance
benefits, and the Executive Salary Continuation Agreement.
13. Notices. Any notices to be given hereunder by either party to
the other shall be in writing and may be transmitted by personal delivery or by
U.S. mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at the addresses
listed as follows:
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Employment Agreement
North Valley Bancorp /Xxx X. Xxxxxx
Dated: January 1, 2006
Form Revised 7/07/06
Employer: North Valley Bancorp
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
ATTN: Xxxxxxx X. Xxxxxxx,
President and Chief Executive Officer
Employee: Xxx X. Xxxxxx
X.X. Xxx 000000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Each party may change the address for receipt of notices by written notice in
accordance with this paragraph 13. Notices delivered personally shall be deemed
communicated as of the date of actual receipt; mailed notices shall be deemed
communicated as of three (3) days after the date of mailing.
14. Arbitration.
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(a) All claims, disputes and other matters in question
arising out of or relating to this Agreement or the breach or
interpretation thereof shall be resolved by binding arbitration before
a representative member, selected by the mutual agreement of the
parties, of the Judicial Arbitration and Mediation Services, Inc.,
Sacramento, California ("JAMS"), in accordance with the rules and
procedures of JAMS then in effect. In the event JAMS is unable or
unwilling to conduct such arbitration, or has discontinued its
business, the parties agree that a representative member, selected by
the mutual agreement of the parties, of the American Arbitration
Association, Sacramento, California ("AAA"), shall conduct such binding
arbitration in accordance with the rules and procedures of the AAA then
in effect. Notice of the demand for arbitration shall be filed in
writing with the other party to this Agreement and with JAMS (or AAA,
if necessary). In no event shall the demand for arbitration be made
after the date when institution of legal or equitable proceedings based
on such claim, dispute or other matter in question would be barred by
the applicable statute of limitations. Any award rendered by JAMS or
AAA shall be final and binding upon the parties, and as applicable,
their respective heirs, beneficiaries, legal representatives, agents,
successors and assigns, and may be entered in any court having
jurisdiction thereof. The obligation of the parties to arbitrate
pursuant to this clause shall be specifically enforceable in accordance
with, and shall be conducted consistently with, the provisions of Title
9 of Part 3 of the California Code of Civil Procedure. Any arbitration
hereunder shall be conducted in Sacramento, California, unless
otherwise agreed to by the parties.
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Employment Agreement
North Valley Bancorp /Xxx X. Xxxxxx
Dated: January 1, 2006
Form Revised 7/07/06
(b) In the event that either party seeks injunctive
relief, consistent with this arbitration clause such relief shall be
sought pursuant to California Code of Civil Procedure Sections 1281.8
and 527, or any successor statutes.
(c) The parties expressly state that it is their intent
to arbitrate disputes between them. Therefore, this Agreement shall be
construed so as to be consistent with applicable federal and California
law, and to be enforceable to the maximum extent allowable by law to
provide arbitration as the forum to resolve their disputes. If
necessary, any portion of this Agreement that is unenforceable by law
shall be stricken, and the arbitrator or the court, as the case may be,
shall have the power to reform this Agreement to the extent necessary
to comply with applicable law and to give effect to the parties' intent
that they shall arbitrate their disputes.
15. Attorneys' Fees and Costs. In the event of litigation,
arbitration or any other action or proceeding between the parties to interpret
or enforce this Agreement or any part thereof or otherwise arising out of or
relating to this Agreement, the prevailing party shall be entitled to recover
its costs related to any such action or proceeding and its reasonable fees of
attorneys, accountants and expert witnesses incurred by such party in connection
with any such action or proceeding. The prevailing party shall be deemed to be
the party which obtains substantially the relief sought by final resolution,
compromise or settlement, or as may otherwise be determined by order of a court
of competent jurisdiction in the event of litigation, an award or decision of
one or more arbitrators in the event of arbitration, or a decision of a
comparable official in the event of any other action or proceeding.
16. Entire Agreement. This Agreement, the Executive Salary
Continuation Agreement, and the Indemnification Agreement supersede any and all
other agreements, either oral or in writing, between the parties with respect to
the employment of Employee by Employer, and contain all of the covenants and
agreements between the parties with respect to the employment of Employee by
Employer. Each party to this Agreement acknowledges that no other
representations, inducements, promises, or agreements, oral or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
set forth herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding on either party.
17. Modifications. Any modification of this Agreement will be
effective only if it is in writing and signed by a party or its authorized
representative.
18. Waiver. The failure of either party to insist on strict
compliance with any of the terms, provisions, covenants, or conditions of this
Agreement by the other party shall not be deemed a waiver of any term,
provision, covenant, or condition, individually or in the aggregate, unless such
waiver is in writing, nor shall any waiver or relinquishment of any right or
power at any one time or times be deemed a waiver or relinquishment of that
right or power for all or any other times.
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Employment Agreement
North Valley Bancorp /Xxx X. Xxxxxx
Dated: January 1, 2006
Form Revised 7/07/06
19. Partial Invalidity. If any provision in this Agreement is held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force and effect
without being impaired or invalidated in any way.
20. Interpretation. This Agreement shall be construed without
regard to the party responsible for the preparation of the Agreement and shall
be deemed to have been prepared jointly by the parties. Employee acknowledges
that the law firm of Xxxxxx Xxxxxxx represents Employer, not Employee. Employee
has had the opportunity to obtain independent legal counsel in connection with
this Agreement, and Employee acknowledges that Employee has either obtained such
counsel or has voluntarily declined the services of such counsel. Any ambiguity
or uncertainty existing in this Agreement shall not be interpreted against
either party, but according to the application of other rules of contract
interpretation, if any ambiguity or uncertainty exists.
21. Survival of Terms. Sections 5, 6, 7, and 14 through 22 shall
survive the termination of this Agreement.
22. Governing Law. The laws of the State of California shall
govern this Agreement.
EMPLOYEE AND EMPLOYER AGREE THAT BY ENTERING INTO THIS AGREEMENT, EMPLOYEE AND
EMPLOYER KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO A TRIAL BY A JUDGE OR
JURY.
Executed this 1st day of August, 2006.
EMPLOYER: EMPLOYEE:
NORTH VALLEY BANCORP, a XXX X. XXXXXX, an individual
California corporation
By: /s/ XXXXXXX X. XXXXXXX /s/ XXX X. XXXXXX
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Xxxxxxx X. Xxxxxxx Xxx X. Xxxxxx
President and Chief Executive Officer
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Employment Agreement
North Valley Bancorp /Xxx X. Xxxxxx
Dated: January 1, 2006
Form Revised 7/07/06
