EXHIBIT 10(hh)
NORTH VALLEY BANK
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT is made this _______ day of ________________, 2001, by and
between NORTH VALLEY BANK, a state-chartered commercial bank, located in
Redding, California (the "Company"), and _______________(the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to provide to the Executive a deferred compensation
opportunity. The Company will pay the Executive's benefits from the Company's
general assets.
AGREEMENT
The Executive and the Company agree as follows:
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Anniversary Date" means December 31 of each year.
1.2 "Change of Control" A "change in control" of Employer for purposes
of this Agreement shall mean the occurrence of any of the following events with
respect to Employer (with the term "Employer" being defined for such a change in
control to be North Valley Bancorp):
(i) a change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or in response to any other form or report to the
regulatory agencies or governmental authorities having jurisdiction over
Employer or any stock exchange on which Employer's shares are listed which
requires the reporting of a change in control;
(ii) any merger, consolidation or reorganization of Employer in
which Employer does not survive;
(iii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) of any
assets of Employer having an aggregate fair market value of fifty percent
(50%) of the total value of the assets of Employer, reflected in the most
recent balance sheet of Employer;
(iv) a transaction whereby any "person" (as such term is used in
the Exchange Act or any individual, corporation, partnership, trust or any
other entity) is or becomes the beneficial owner, directly or indirectly,
of securities of Employer representing 50% or more of the combined voting
power of Employer's then outstanding securities;
(v) if in any one year period, individuals who at the beginning
of such period constitute the Board of Directors of Employer cease for any
reason to constitute at least a majority thereof, unless the election, or
the nomination for election by Employer's shareholders, of each new
director is approved by a vote of a least three-quarters of the directors
then still in office who were directors at the beginning of the period;
(vi) a majority of the members of the Board of Directors of
Employer in office prior to the happening of any event determines in its
sole discretion that as a result of such event there has been a change in
control. Notwithstanding the foregoing or anything else contained herein
to the contrary, there shall not be a "change in control" for purposes of
this Agreement if the event which would otherwise come within the meaning
of the term "change in control" involves an Employee Stock Ownership Plan
or similar plan sponsored by Employer which is the party that acquires
"control" or is the principal participant in the transaction constituting
a "change in control," as described above.
1.3 "Code" means the Internal Revenue Code of 1986, as amended.
1.4 "Compensation" means the total salary and bonus paid to the
Executive during a Plan Year.
1.5 "Deferral Account" means the Company's accounting of the
Executive's accumulated Deferrals plus accrued interest.
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1.6 "Deferrals" means the amount of the Executive's Compensation, which
the Executive elects to defer according to this Agreement.
1.7 "Disability" means, if the Executive is covered by a Company
sponsored disability policy, total disability as defined in such policy without
regard to any waiting period. If the Executive is not covered by such a policy,
Disability means the Executive suffering a sickness, accident or injury, which,
in the judgment of a physician satisfactory to the Company, prevents the
Executive from performing substantially all of the Executive's normal duties for
the Company. As a condition to any Disability benefits, the Company may require
the Executive to submit to such physical or mental evaluations and tests as the
Company's Board of Directors deems appropriate.
1.8 "Effective Date" means December 19,2000.
1.9 "Election Form" means the Form attached as Exhibit 1.
1.10 "Benefit Election Form" means the Form attached as Exhibit 2.
1.11 "Normal Retirement Age" means the Executive's 65th birthday.
1.12 "Normal Retirement Date" means the later of the Normal Retirement
Age or Termination of Employment.
1.13 "Plan Year" means the calendar year.
1.14 "Termination of Employment" means that the Executive ceases to be
employed by the Company for any reason whatsoever other than by reason of a
leave of absence, which is approved by the Company. For purposes of this
Agreement, if there is a dispute over the employment status of the Executive or
the date of the Executive's Termination of Employment, the Company shall have
the sole and absolute right to decide the dispute.
ARTICLE 2
DEFERRAL ELECTION
2.1 Initial Election. The Executive shall make an initial deferral
election under this Agreement by filing with the Company a signed Election Form
within thirty (30) days after the Effective Date of this Agreement. The Election
Form shall set forth the amount of Compensation to be deferred and shall be
effective to defer only Compensation earned after the date the Election Form is
received by the Company.
2.2 Election Changes
2.2.1 Generally. Upon the Company's approval, the Executive may
modify the amount of Compensation to be deferred annually by filing a new
Election Form with the Company prior to the beginning of the Plan Year in which
the Compensation is to be deferred. The modified deferral election shall not be
effective until the calendar year following the year in which the subsequent
Election Form is received and approved by the Company.
2.2.2 Hardship. If an unforeseeable financial emergency arising
from the death of a family member, divorce, sickness, injury, catastrophe or
similar event outside the control of the Executive occurs, the Executive, by
written instructions to the Company, may reduce future deferrals under this
Agreement.
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ARTICLE 3
DEFERRAL ACCOUNT
3.1 Establishing and Crediting. The Company shall establish a Deferral
Account on its books for the Executive and shall credit to the Deferral Account
the following amounts:
3.1.1 Deferrals. The Compensation deferred by the Executive as of
the time the Compensation would have otherwise been paid to the Executive.
3.1.2 Interest. On each Anniversary Date of this Agreement prior to
any payment of pre-retirement or post-retirement benefits, and during the
payment of any pre-retirement benefits or post-retirement benefits, interest is
to be accrued on the account balance and compounded at an annual rate equal to
the WALL STREET JOURNAL Prime Rate plus one and one half percent on the first
business day of the Plan Year, compounded monthly.
3.2 Statement of Accounts. The Company shall provide to the Executive,
within 120 days after each Anniversary Date, a statement setting forth the
Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a device for
measuring amounts to be paid under this Agreement. The Deferral Account is not a
trust fund of any kind. The Executive is a general unsecured creditor of the
Company for the payment of benefits. The benefits represent the mere Company
promise to pay such benefits. The Executive's rights are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by the Executive's creditors.
ARTICLE 4
LIFETIME BENEFITS
4.1 Normal Retirement Benefit. Upon the Normal Retirement Date, the
Company shall pay to the Executive the benefit described in this Section 4.1 in
lieu of any other benefit under this Agreement.
4.1.1 Amount of Benefit. The benefit under this Section 4.1 is the
Deferral Account balance at the Executive's Normal Retirement Date.
4.1.2 Payment of Benefit. The Company shall pay the annual benefit
to the Executive in 12 equal monthly installments payable on the first day of
each month commencing with the month following the Executive's Normal Retirement
Date. The annual benefit shall be paid to the Executive for 20 years, or as
elected on the Election Form (Exhibit 2). The Company shall credit interest
pursuant to Section 3.1.2 on the remaining account balance during any applicable
installment period.
4.2 Early Retirement Benefit. Upon Termination of Employment prior to
the Normal Retirement Age for reasons other than death, Change of Control or
Disability, the Company shall pay to the Executive the benefit described in this
Section 4.2 in lieu of any other benefit under this Agreement.
4.2.1 Amount of Benefit. The benefit under this Section 4.2 is the
Deferral Account balance at the Executive's Termination of Employment.
4.2.2 Payment of Benefit. The Company shall pay the annual benefit
to the Executive in 12 equal monthly installments payable on the first day of
each month commencing with the month following the Executive's Termination of
Employment. The annual benefit shall be paid to the Executive for 20 years, or
as elected on the Election Form (Exhibit 2). The Company shall credit interest
pursuant to Section 3.1.2 on the remaining account balance during any applicable
installment period.
4.3 Disability Benefit. If the Executive terminates employment due to
Disability prior to Normal Retirement Age, the Company shall pay to the
Executive the benefit described in this Section 4.3 in lieu of any other benefit
under this Agreement.
4.3.1 Amount of Benefit. The benefit under this Section 4.3 is the
Deferral Account balance at the Executive's Termination of Employment.
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4.3.2 Payment of Benefit. The Company shall pay the annual benefit
to the Executive in 12 equal monthly installments payable on the first day of
each month commencing with the month following the Executive's Termination of
Employment. The annual benefit shall be paid to the Executive for 20 years. The
Company shall credit interest pursuant to Section 3.1.2 on the remaining account
balance during any applicable installment period.
4.4 Change of Control Benefit. Upon a Change of Control, the Company
shall pay to the Executive the benefit described in this Section 4.4 in lieu of
any other benefit under this Agreement.
4.4.1 Amount of Benefit. The benefit under this Section 4.4 is the
Deferral Account balance at the Executive's Termination of Employment.
4.4.2 Payment of Benefit. The Company shall pay the benefit to the
Executive in a lump sum payable within 60 days of the Executive's Termination of
Employment.
4.5 Hardship Distribution. Upon the Board of Director's determination
(following petition by the Executive) that the Executive has suffered an
unforeseeable financial emergency as described in Section 2.2.2, the Company
shall distribute to the Executive all or a portion of the Deferral Account
balance as determined by the Company, but in no event shall the distribution be
greater than is necessary to relieve the financial hardship.
ARTICLE 5
DEATH BENEFITS
5.1 Death During Active Service. If the Executive dies while in the
employment of the Company, the Company shall pay to the Executive's beneficiary
the benefit described in this Section 5.1 in lieu of any other benefit under
this Agreement.
5.1.1 Amount of Benefit. The benefit under Section 5.1 is the
Deferral Account balance at the time of the Executive's Death.
5.1.2 Payment of Benefit. The Company shall pay the annual benefit
to the Executive's beneficiary in 12 equal monthly installments payable on the
first day of each month commencing with the month following the Executive's
Death. The annual benefit shall be paid to the Executive's beneficiary for 20
years. The Company shall credit interest pursuant to Section 3.1.2 on the
remaining account balance during any applicable installment period.
5.2 Death During Payment of a Lifetime Benefit. If the Executive dies
after any Lifetime Benefit payments have commenced under this Agreement but
before receiving all such payments, the Company shall pay the remaining benefits
to the Executive's beneficiary at the same time and in the same amounts they
would have been paid to the Executive had the Executive survived.
5.3 Death After Termination of Employment But Before Payment of a
Lifetime Benefit Commences. If the Executive is entitled to a Lifetime Benefit
under this Agreement, but dies prior to the commencement of said benefit
payments, the Company shall pay the same benefit payments to the Executive's
beneficiary that the Executive was entitled to prior to death except that the
benefit payments shall commence on the first day of the month following the date
of the Executive's death.
ARTICLE 6
BENEFICIARIES
6.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with the Company. The Executive may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Executive and
accepted by the Company during the Executive's lifetime. The Executive's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Executive or if the Executive names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's estate.
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6.2 Facility of Payment. If a benefit is payable to a minor, to a person
declared incompetent, or to a person incapable of handling the disposition of
his or her property, the Company may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incompetent
person or incapable person. The Company may require proof of incompetence,
minority or guardianship as it may deem appropriate prior to distribution of the
benefit. Such distribution shall completely discharge the Company from all
liability with respect to such benefit.
ARTICLE 7
GENERAL LIMITATIONS
7.1 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement that is in excess of the Executive's Deferrals (the interest earned on
the Deferral Account) if the Company terminates the Executive's employment for:
(a) Gross negligence or gross neglect of duties to the Company;
(b) Commission of a felony or of a gross misdemeanor involving moral
turpitude in connection with the Executive's employment with the Company;
or
(c) Fraud, disloyalty, dishonesty or willful violation of any law or
significant Company policy committed in connection with the Executive's
employment and resulting in an adverse effect on the Company.
7.2 Suicide or Misstatement. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any death benefit under
this Agreement exceeding the Deferral Account if the Executive commits suicide
within two years after the date of this Agreement, or if the Executive has made
any material misstatement of fact on any application for life insurance
purchased by the Company.
ARTICLE 8
CLAIMS AND REVIEW PROCEDURES
8.1 Claims Procedure. The Company shall notify any person or entity that
makes a claim against the Agreement (the "Claimant") in writing, within 90 days
of Claimant's written application for benefits, of his or her eligibility or
non-eligibility for benefits under the Agreement. If the Company determines that
the Claimant is not eligible for benefits or full benefits, the notice shall set
forth (1) the specific reasons for such denial, (2) a specific reference to the
provisions of the Agreement on which the denial is based, (3) a description of
any additional information or material necessary for the Claimant to perfect his
or her claim, and a description of why it is needed, and (4) an explanation of
the Agreement's claims review procedure and other appropriate information as to
the steps to be taken if the Claimant wishes to have the claim reviewed. If the
Company determines that there are special circumstances requiring additional
time to make a decision, the Company shall notify the Claimant of the special
circumstances and the date by which a decision is expected to be made, and may
extend the time for up to an additional 90 days.
8.2 Review Procedure. If the Claimant is determined by the Company not
to be eligible for benefits, or if the Claimant believes that he or she is
entitled to greater or different benefits, the Claimant shall have the
opportunity to have such claim reviewed by the Company by filing a petition for
review with the Company within 60 days after receipt of the notice issued by the
Company. Said petition shall state the specific reasons which the Claimant
believes entitle him or her to benefits or to greater or different benefits.
Within 60 days after receipt by the Company of the petition, the Company shall
afford the Claimant (and counsel, if any) an opportunity to present his or her
position to the Company verbally or in writing, and the Claimant (or counsel)
shall have the right to review the pertinent documents. The Company shall notify
the Claimant of its decision in writing within the 60-day period, stating
specifically the basis of its decision, written in a manner to be understood by
the Claimant and the specific provisions of the Agreement on which the decision
is based. If, because of the need for a hearing, the 60-day period is not
sufficient, the decision may be deferred for up to another 60 days at the
election of the Company, but notice of this deferral shall be given to the
Claimant.
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ARTICLE 9
AMENDMENTS AND TERMINATION
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive.
ARTICLE 10
MISCELLANEOUS
10.1 Binding Effect. This Agreement shall bind the Executive and the
Company and their beneficiaries, survivors, executors, administrators and
transferees.
10.2 No Guarantee of Employment. This Agreement is not a contract for
employment. It does not give the Executive the right to remain an employee of
the Company, nor does it interfere with the Company's right to discharge the
Executive. It also does not require the Executive to remain an employee nor
interfere with the Executive's right to terminate employment at any time.
10.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
10.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of California, except to the extent preempted by the laws
of the United States of America.
10.6 Unfunded Arrangement. The Executive and the Executive's beneficiary
are general unsecured creditors of the Company for the payment of benefits under
this Agreement. The benefits represent the mere promise by the Company to pay
such benefits. The rights to benefits are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors. Any insurance on the Executive's life
is a general asset of the Company to which the Executive and the Executive's
beneficiary have no preferred or secured claim.
10.7 Small Account Balance. If the Executive's Account Balance is $25,000
or less, the Company in its sole and absolute discretion shall have the right to
pay out the Executive's remaining Account Balance in a lump sum.
10.8 Reorganization. The Company shall not merge or consolidate into or
with another company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm, or person agrees to assume and discharge the obligations of the Company
under this Agreement. Upon the occurrence of such event, the term "Company" as
used in this Agreement shall be deemed to refer to the successor or survivor
company.
10.9 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Executive as to the subject matter hereof. No rights
are granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.
10.10 Administration. The Company shall have powers which are necessary to
administer this Agreement, including but not limited to:
(a) Interpreting the provisions of the Agreement;
(b) Establishing and revising the method of accounting for the
Agreement;
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(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
10.11 Named Fiduciary. For purposes of the Employee Retirement Income
Security Act of 1974, if applicable, the Company shall be the named fiduciary
and plan administrator under this Agreement. The named fiduciary may delegate to
others certain aspects of the management and operation responsibilities of the
plan including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
IN WITNESS WHEREOF, the Executive and a duly authorized Company officer
have signed this Agreement.
EXECUTIVE:
/s/
-------------------------------------
COMPANY:
NORTH VALLEY BANK
By /s/
-----------------------------------
Title
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EXHIBIT 1
TO
NORTH VALLEY BANK
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
DEFERRAL ELECTION FORM FOR
----------------
I elect to defer my Compensation received under this Agreement with the Company,
as follows:
--------------------------------------------------------------------------------
Amount of Deferral Duration
================================================================================
[Initial and Complete one] [Initial One]
____ I elect to defer ____% of my ____ One Year only
Compensation.
____ For ______ [Insert
____ I elect to defer $______ of all Number] Years
Compensation.
Until Termination
____ I elect not to defer any of my of Employment
Compensation.
____ Until ___________,
___________ (date)
--------------------------------------------------------------------------------
Upon the Company's approval, I understand that I may change the amount and
duration of my deferrals by filing a new election form with the Company;
provided, however, that any subsequent election will not be effective until the
calendar year following the year in which the new election is accepted by the
Company.
Signature _______________________________
Date ____________________________________
Accepted by the Company this ________ day of ___________________, 2001.
By ______________________________________
Title ___________________________________
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EXHIBIT 2
TO
NORTH VALLEY BANK
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
FORM OF BENEFIT FORM
--------------------
The Executive understands that he or she may not change the Form of
Benefit elected, however, the Company will allow the Executive to file a
petition with the Company requesting an alternate payment plan and the Board of
Directors, in its sole and absolute discretion, may accept or reject such a
request.
I elect to receive benefits under the Agreement in the following form:
4.1.2 Payment of Normal Retirement Benefit.
[INITIAL ONE]
____ Lump sum
____ Equal monthly installments for 20 years.
4.2.2 Payment of Early Retirement Benefit
[INITIAL ONE]
____ Lump sum
____ Equal monthly installments for 20 years.
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Beneficiary Designation
NORTH VALLEY BANK
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
I designate the following as beneficiary of benefits under this Agreement
payable following my death:
Primary:________________________________________________________________________
________________________________________________________________________________
Contingent:_____________________________________________________________________
________________________________________________________________________________
Note: To name a trust as beneficiary, please provide the name of the trustee(s)
and the exact name and date of the trust agreement.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature ______________________________________
Date ___________________________________________
Accepted by the Company this _____ day of __________, 2000.
By_____________________________
Title__________________________
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