EXECUTIVE VICE PRESIDENT EMPLOYMENT, CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Exhibit 10.3
EXECUTIVE VICE PRESIDENT
EMPLOYMENT, CONFIDENTIALITY
AND NON-DISCLOSURE AGREEMENT
PARTIES TO AGREEMENT
Section 1.01 - Parties: This Employment Agreement (hereinafter referred to as the “Agreement”) is entered into by and between Farmers & Merchants Bank of Central California, a California banking corporation (the
“Bank”), its successors and assigns (hereinafter referred to as “Employer”), and Xxxxxxx X. Xxxxxxx (hereinafter referred to as “Employee”). Employer and Employee are sometimes collectively referred to hereinafter as the “Parties” and individually
as a “Party”.
EMPLOYMENT
Section 2.01 - Employment: Employer hereby agrees to continue employing Employee, and Employee hereby accepts such continued employment with Employer, in accordance with the terms and conditions set forth herein.
Section 2.02 - Term of Employment: This Agreement shall become effective on August 1, 2019. This Agreement shall terminate on July 31, 2022 unless earlier terminated pursuant to the provisions of Part VII herein. If this
Agreement is not terminated pursuant to Part VII, the Agreement shall renew automatically for an additional two year term, and for successive additional two year terms thereafter, unless earlier terminated pursuant to the provisions of Part VII.
DUTIES OF EMPLOYEE
Section 3.01- General Duties: During the term of this Agreement, Employee shall be employed as Executive Vice President and Chief Administrative Officer under the direction of the President and
Chief Executive Officer and shall perform and discharge well and faithfully the duties that may be assigned to Employee from time to time by the President and Chief Executive Officer in connection with the conduct of the Employer’s business.
Nothing herein shall preclude Employer’s Board of Directors or Chief Executive Officer from changing Employee’s title or duties as long as the resulting title and duties are reasonably commensurate with the education, employment background and
qualifications of the Employee and involve similar responsibilities and scope of duties.
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Section 3.02 - Outside Activities: Employee agrees that, while employed by Employer, Employee will refrain from any outside activities which actually or potentially are in direct conflict with the
essential enterprise-related or reputational interest of Employer, that would cause disruption of the Employer’s operations, or that would be in direct competition with the Employer or assist competitors of the Employer. It
shall not be a violation of this Agreement for Employee (A) to serve on corporate, civic or charitable boards or committees, or (B) to deliver lectures or fulfill speaking engagements, so long as such activities do not significantly interfere with
the performance of Employee’s responsibilities as an employee of the Employer; provided, however, that Employee shall give the Employer’s Chief Executive Officer not less than fourteen (14) days’ notice of any actions contemplated by clauses (A) or
(B), and will refrain from any such action to which the Chief Executive Officer in his/her sole discretion, objects. It shall not be a violation of this Agreement for Employee to manage personal investments, so long as such activities do not
represent a conflict with Employer, as described in Employer’s Employee Code of Conduct, and other pertinent policies and agreements.
COMPENSATION
Section 4.01 - Salary: Employee shall be paid an annual base salary of no less than $360,000 per year. This base salary shall be paid to Employee in such intervals and at such times as other salaried executives of Employer are paid. Employer’s Board of Directors reserves the right to set the timing and level of salary adjustments for all employees and any particular employee at its sole
discretion.
Section 4.02 - Incentive and Retention Programs: Employee shall be eligible for an annual discretionary incentive bonus. The amount of the bonus for a given year shall be determined by Employer’s Board of Directors
annually by January 31st of each following year and shall be paid no later than February 28th of each following year, provided Employee is still employed by Employer on the payment date. Employee shall be entitled to participate in the “Farmers
& Merchants Bank of Central California Executive Retirement Plan – Salary Component”, “Farmers & Merchants Bank of Central California Split Dollar Agreement”, “Farmers & Merchants Bank of Central California Executive Retirement Plan –
Equity Component”, and “Farmers & Merchants Bank of Central California Executive Retirement Plan – Performance Component”, the terms and conditions of which are set forth in separate agreements so titled.
BENEFITS
Section 5.01 - Benefits: Employee shall be entitled to participate in whatever vacation, medical, dental, pension, sick leave, 401(k), profit sharing, disability insurance or other plans of general application, or other
benefits which are in effect as to other executive officers of Employer, or as may be in effect from time to time, in accordance with the rules established for individual participation in any such plan.
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Section 5.02 - Automobile/Automobile Allowance: Employer shall provide Employee with either an automobile for business and incidental personal use or an automobile allowance as per Employer policy. However, at the sole
discretion of the Board of Directors and/or the Employer’s Chief Executive Officer, the Employer reserves the right to change or eliminate this benefit at any time.
Section 5.03 - Membership Fees: Employer shall reimburse Employee for all appropriate and reasonable expenses incurred in performing Employee’s duties, including providing and paying for the dues and fees of membership in
local social, service and civic clubs and/or organizations as Employer deems appropriate and necessary for enhancement of its presence within the local business community. In order to be eligible for reimbursement of these expenses, Employee must
obtain pre-approval for such memberships from Employer’s Chief Executive Officer and must provide Employer with receipts and documented evidence as is required by federal and state laws and regulations.
Section 5.04 - Directors and Officers Liability Insurance Coverage: To the extent commercially reasonable to do so under prevailing conditions in the insurance market, Employer shall provide directors and officers
liability insurance coverage for the protection of Employee on terms and conditions no less favorable to Employee than are in effect on the date that this Agreement shall become effective. Following any termination of Employee’s employment with
Employer, such coverage shall be continued under substantially the same terms and conditions as are in effect immediately prior to such termination of employment at no cost to Employee until all applicable statutes of limitation expire with respect
to claims arising prior to such termination of employment. Employee expressly acknowledges, however, that Employer cannot and shall not guarantee the performance of the insurance company issuing such directors and officers liability insurance
coverage pursuant to this Section. In addition to the foregoing, Employer shall also continue to make indemnification and advancement of litigation expense payments to Employee to the maximum extent and for the maximum period permitted by law.
EXPENSES
Section 6.01 - Travel and Entertainment Expenses: During the term of this Agreement, Employer shall reimburse Employee for reasonable out of pocket expenses incurred in connection with Employer’s business, including
travel expenses, food and lodging while away from Employee’s home, subject to such policies as Employer may from time to time establish for other officers of equivalent title. Employee shall keep records of Employee’s travel and entertainment
expenses in a form suitable to the Internal Revenue Service and the Franchise Tax Board to qualify this reimbursement as a federal and state income tax deduction for Employer. In addition, Employee shall provide Employer with receipts for all
expenses for which Employee seeks reimbursement.
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TERMINATION OF EMPLOYMENT
Section 7.01 - Termination at Option of Employer: Employer may terminate this Agreement at any time and without “Cause” (as defined below) by giving Employee sixty (60) days written notice of Employer’s intent to
terminate this Agreement. The 60th day after Notice of Termination shall be deemed Employee’s Separation Date. In the event Employee’s employment is terminated by Employer pursuant to this Section, Employee shall be paid all accrued salary,
accrued but unused vacation, and reimbursement expenses for which expense reports have been provided to Employer, or which are provided to Employer prior to the Separation Date, in accordance with Employer’s policies and this Agreement. In
addition to the foregoing amounts, if Employee is terminated by Employer pursuant to this Section, and subject to (A) Employee’s continued employment through, and termination of employment on, the Separation Date; (B) Employee’s continued loyalty
to Employer, which includes, but is not limited to, Employee or any outside third party refraining from any announcements to anyone inside or outside Employer that the Employee is leaving Employer; and (C) Employee’s
execution and non-revocation of a general release of all claims in the form attached hereto as Exhibit A, which release becomes irrevocable within 60 days following the Separation Date or such earlier deadline provided by
Employer, then Employee will be entitled to receipt of the following Severance Package:
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A document acknowledging all responsibilities under the Farmers & Merchants Bank of Central California Split Dollar Agreement and the related Farmers & Merchants Bank of Central California Executive Bonus Agreement.
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Section 7.02- Termination for Cause: Employer may terminate Employee’s employment at any time for “Cause” upon written Notice of Termination to Employee, setting forth in reasonable detail the basis for the determination
of “Cause.” Termination for Cause shall be effective immediately upon receipt of the Notice of Termination by Employee, and the date on which the Notice of Termination is received shall be deemed to be the Separation Date. If Employee is
terminated pursuant to this Section 7.02, Employee shall be entitled only to accrued salary, vacation and reimbursement of expenses for which expense reports have been provided to Employer, or which are provided to Employer within two weeks of the
Separation Date, in accordance with Employer’s policies and this Agreement. Employee shall be entitled to no further compensation or severance payment of any nature; provided however, that Employee will also be entitled to
payment of all awards of qualified and nonqualified benefit plans and incentive and retention programs in accordance with the terms of those plans, including any applicable vesting and forfeiture provisions. Any such payment or distribution from a
nonqualified deferred compensation plan shall be governed by the terms of such plan relating to the timing of distributions.
“Cause” for purposes of this Agreement shall be defined as conviction of a felony resulting in a material adverse economic effect on Employer; provided that the determination of such material adverse economic effect shall in any case be made
pursuant to a resolution duly adopted by a vote of no less than two-thirds (2/3’s) of the entire Board of Directors of the Bank at a meeting duly held and called for such purpose; and provided further, that Employee shall be given reasonable notice
of such meeting and shall have the opportunity, together with counsel, to be heard before the Board of Directors at any such meeting.
Section 7.03 - Termination at Option of Employee: This Agreement may be terminated by Employee at Employee’s sole discretion by giving one hundred twenty (120) days written Notice of Resignation to Employer. If Employee
terminates his/her employment pursuant to this Section 7.03, and subject to Employee’s continued satisfactory performance of such tasks and duties that may be assigned to Employee through the Separation Date, and Employee’s continued loyalty to
Employer through the Separation Date (which includes, but is not limited to, refraining from any announcements by Employee or any outside third party to anyone inside or outside Employer that the Employee is leaving Employer), Employee shall
receive accrued salary and payment for accrued but unused vacation through the Separation Date. Employee shall also be entitled to payment of all awards of qualified and nonqualified benefit plans and incentive and retention programs, in
accordance with the terms of those plans, including applicable vesting and forfeiture provisions. Any such payment or distribution from a nonqualified deferred compensation plan shall be governed by the terms of such plan relating to the timing of
distributions. Alternatively, Employer may, at its option, at any time after Employee gives written Notice of Resignation as herein provided, pay Employee’s accrued salary up to and including the effective Separation Date set forth in Employee’s
Notice of Resignation, and thereupon immediately terminate Employee’s employment. Notwithstanding the foregoing, if Employer determines at any time during the 120-day notice period that Employee materially breaches the obligations imposed by the
provisions of this Section 7.03 and Part IX of this Agreement, Employer may shorten the notice period and accelerate the Separation Date, thereby reducing the compensation otherwise payable to Employee pursuant to this Section.
Section 7.04 - Option to Terminate on Permanent Disability of Employee: Employer may terminate this Agreement if, during the term of this Agreement, Employee shall become “Permanently Disabled”, as
that term is defined herein. A termination pursuant to this Section 7.04 shall be deemed a termination without “Cause,” and shall be governed by the procedures, and shall entitle Employee to the Severance Package specified in Section 7.01. For purposes of this Agreement, Employee shall be deemed to have become Permanently Disabled if Employee is unable to perform his/her current duties, with or without reasonable accommodation, for an aggregate of 120 working
days over a six month period, by reason of any medically determinable physical or mental impairment. Employer may issue its Notice of Termination to Employee on or after the 90th working day of Permanent Disability, as defined herein.
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The Notice of Termination shall be deemed withdrawn and the Agreement shall remain in effect after a Notice of Termination has been given to Employee under the following circumstances.
Section 7.05 - Continuation of Medical Benefits: In the event Employee’s employment is terminated Employee shall be afforded the right to continue his/her medical benefits to the extent provided in the Consolidated
Omnibus Budget Reconciliation Act (“COBRA”), at his/her expense. Employer shall provide Employee with the appropriate COBRA notification within the time required by the law from the Separation Date.
MERGERS AND ACQUISITIONS
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In the event of either (i) Employee’s termination of employment during the term of this Agreement and after the signing of an agreement providing for, or otherwise in anticipation of a Change in Control of Employer or Bancorp under
Section 8.01.1(i), (ii) or (iv), or (ii) a Change of Control of Employer or Bancorp under Section 8.01.1 (i), (ii) or (iv) during the term of this Agreement and prior to Employee’s termination of employment, and in each case upon the
execution by Employee and non-revocation of (A) a general release of all claims provided by Employer and (B) a non-competition and non-solicitation agreement in the form attached hereto as Exhibit B, Employer will provide Employee with
a Change of Control Compensation Package equal to (A) two (2) times Employee’s highest Annual Compensation paid before the earlier of the (i) termination of employment or (ii) Change of Control; (B) $125,000; (C) Employee’s monthly
premium for continuation coverage under COBRA (as defined in Section 7.06), determined as of the closing or other occurrence of the Change of Control, multiplied by thirty-six (36) months, whether or not such continuation coverage is
elected by Employee; (D) Employee’s company car valued for tax purposes using the vehicle’s Xxxxxx Blue Book Trade-In Value in Good Condition; and (E) a gross-up payment as defined and set forth herein in Section 8.01.4.
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Employer will also (i) provide employee with a document acknowledging all responsibilities under the Farmers & Merchants Bank of Central California Split Dollar Agreement (the “Split Dollar Agreement”) and the
related Farmers & Merchants Bank of Central California Executive Bonus Agreement (the “Circle of Funds Agreement”), and (ii) if not previously done, contribute such assets as are necessary to fund its obligations under both agreements,
including but not limited to (i) all insurance policies on the life of Employee taken out to provide funding for the Split Dollar Agreement, and (ii) cash in an amount to fund the estimated Circle of Funds payments over the remaining actuarially
forecasted life span of the Employee, to an irrevocable grantor trust that conforms substantially with the model trust published in IRS Revenue Procedure 92-64, subject to a trustee selected by the Company prior to the Change of Control.
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In addition, Employee will be entitled to payment of all awards of benefit plans and incentive and retention programs in accordance with the terms of those plans and programs, including applicable vesting and
forfeiture provisions.
Upon the closing or other occurrence of the Change of Control transaction, and subject to the provisions of this Section 8.01, Employee shall receive disbursement of payments due Employee under this Section (except for
payments or distributions from or pursuant to any nonqualified deferred compensation plan), in one lump sum payment, less any withholding required by state, federal or local law. Any payment or distribution from or pursuant to any nonqualified
deferred compensation plan shall be governed by the terms of such plan. If Employee becomes entitled to payment under this Section 8.01.2, Employee shall not be entitled to the Severance Package under Sections 7.01 or 7.04, notwithstanding
Employee’s subsequent termination of employment pursuant to those Sections.
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In the event of either (i) Employee’s termination of employment during the term of this Agreement and after the signing of an agreement providing for, or otherwise in anticipation of, a Change of Control of Employer or Bancorp under
Section 8.01.1(iii) (and not under (i), (ii) or (iv)) or (ii) a Change of Control of Employer or Bancorp under Section 8.01.1 (iii) (and not under (i), (ii) or (iv)) during the term of this Agreement and prior to Employee’s termination
of employment, and subject to execution by Employee of a non-competition and non-solicitation agreement in the form attached hereto as Exhibit B, Employer will provide Employee with a Change of Control Compensation Package equal to (A)
one (1) times Employee’s highest Annual Compensation paid before the earlier of the (i) termination of employment or (ii) Change of Control; (B) $125,000; (C) Employee’s company car valued for tax purposes using the vehicle’s Xxxxxx
Blue Book Trade-In Value in Good Condition; and (D) a gross-up payment as defined and set forth herein in Section 8.01.4.
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Upon the closing or other occurrence of the Change of Control transaction, and subject to the provisions of this Section 8.01, Employee shall receive disbursement of payments due Employee under this Section in one lump
sum payment, less any withholding required by state, federal or local law, upon the closing or other occurrence of the Change in Control transaction. If Employee becomes entitled to payment under this Section 8.01.3, Employee shall still be
entitled to the Severance Package under Sections 7.01 or 7.04, should Employee’s subsequent termination of employment occur pursuant to those Sections.
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Gross-Up Payment: Employee shall be entitled to a “Gross-Up Payment” under the terms and conditions set forth herein, and such payment shall include the Excise Tax reimbursement due pursuant to Section 8.01.4.a and any federal and
state tax reimbursements due pursuant to Section 8.01.4.b.
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It is further intended that in the event that any payments would be subject to other “penalty” taxes (in addition to the Excise Tax in section 8.01.4.a) imposed applicable federal tax law, that these taxes would also be included in the calculation of the Gross-Up Payment, including any federal and state tax reimbursements pursuant to section 8.01.4.b.
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Section 8.02 – Merger or Acquisition Without a Change of Control. In the event of a merger, consolidation or sale of all, or substantially all, of the assets of Bancorp, wherein Bancorp’s shareholders immediately before such transaction shall
own of record (immediately after such transaction) equity securities, other than any warrant or right to purchase such equity securities, of Bancorp or an acquiring entity or any parent entity thereof, possessing more than 70% of the voting power
of Bancorp or such acquiring entity or any parent entity thereof (in making the determination of ownership of such equity securities immediately after such transaction, equity securities owned by shareholders of Bancorp immediately prior to the
transaction as shareholders to another party to the transaction shall be disregarded) Employee shall be paid a transaction bonus of .25% (one-quarter of one percent) of the deal value (defined as “the sum of any cash and the fair market value of
any securities or other assets or property available for distribution to the holders of the acquired company’s equity securities, including amounts distributed after the closing of the acquisition pursuant to any escrow, earn-out or other similar
arrangement, after deduction of any items subtracted from proceeds to be distributed to holders of the acquired company’s equity securities, such as costs and fees that are associated with the transaction”), subject to a minimum of $75,000 and a
maximum of $300,000. Said transaction bonus to be paid through a contribution to the Non-Qualified Executive Retirement Plan – Equity Component.
PART IX
COVENANTS
Section 9.01 - Confidential Nature of Relationship. Employee acknowledges (i) the highly competitive nature of the business and the industry in which Employer competes; (ii) that as a key executive of Employer he/she has
participated in and will continue to participate in the service of current customers and/or the solicitation of prospective customers, through which, among other things, Employee has obtained and will continue to obtain knowledge of the “know-how”
and business practices of Employer, in which matters Employer has a substantial proprietary interest; (iii) that his/her employment hereunder renders the performance of services which are special, unique, extraordinary and intellectual in
character, and his/her position with Employer placed and places him/her in a position of confidence and trust with the customers and employees of Employer; and (iv) that his/her rendering of services to the customers of Employer necessarily
requires the disclosure to Employee of Trade and Business Secrets, Proprietary and Confidential Information, and Employer Materials (as defined in Section 9.03 below) of Employer. In the course of Employee’s employment with Employer, Employee has
and will continue to develop a personal relationship with the customers and prospective customers (defined for purposes of this Agreement as customers that Employer is either actively soliciting or in the process of making a proposal for services
to as of Employee’s Separation Date) of Employer and a knowledge of those customers’ and prospective customers’ affairs and requirements, and the relationship of Employer with its established clientele has been, and will continue to be, placed in
Employee’s hands in confidence and trust. Employee consequently agrees that it is a legitimate interest of Employer, and reasonable and necessary for the protection of the confidential information, goodwill and business of Employer, which is
valuable to Employer, that Employee make the covenants contained herein.
Employee Initials ____
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Section 9.02 - Restrictions: Accordingly, Employee agrees that during the period that he/she is employed by Employer, unless in the normal course of business, he/she shall not, as an individual, employee, consultant, independent contractor,
partner, shareholder, or in association with any other person, business or enterprise, directly or indirectly, and regardless of the reason for him/her ceasing to be employed by Employer, engage in the following:
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Disclosure of Proprietary Information or Materials. Employee agrees that he/she will not directly or indirectly reveal, report, publish or disclose to any person, firm, or corporation not expressly authorized in writing by
Employer’s Board of Directors to receive any Trade and Business Secret, Proprietary and Confidential Information or Employer Materials (as defined in Section 9.03 below). Employee further agrees that he/she will not use any Trade and
Business Secret, Proprietary and Confidential Information and/or Employer Materials for any purpose except to perform his/her employment duties for Employer and such Trade and Business Secret, Proprietary and Confidential Information
and/or Employer Materials may not be used or disclosed by Employee for his/her own benefit or purpose or for the benefit or purpose of a subsequent employer. These agreements will continue to apply after Employee is no longer employed
by Employer so long as such Trade and Business Secrets, Proprietary and Confidential Information and Employer Materials are not nor have become, by legitimate means, generally known to the public.
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Employee Initials _____
Section 9.03 – Definitions:
A. TRADE AND BUSINESS SECRETS means information, including a formula, pattern, compilation, program, device, method, technique or process that derives independent economic value, actual or
potential from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
B. PROPRIETARY AND CONFIDENTIAL INFORMATION means trade secrets, computer programs, designs, technology, ideas, know-how, processes, formulas, compositions, data, techniques, improvements, inventions (whether patentable or not), works
of authorship, or other information concerning Employer’s:
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(i) Business Activities, including but not limited to: actual or anticipated strategic plans and initiatives; marketing plans, advertising and collateral materials; new product development plans; competitor analyses;
analyses of internal financial performance; financial forecasts and budgets; customer and prospect strategies and lists; proprietary designs of facilities and other delivery systems and processes; and any similar information to which Employee has
access by virtue of performing his/her duties for Employer.
(ii) Customers, including but not limited to: information about Employer’s customers or prospective customers, such as the customer’s or prospect’s key decision-makers; customer preferences; customer strategies; terms
of any contractual arrangements with Employer; business considerations; loan, deposit and other product and service pricing, terms and conditions, repayment structures, fee arrangements, structure of guarantees from other entities; and any similar
information to which Employee has access by virtue of performing his/her duties for Employer.
(iii) Employees, including but not limited to: names of and contact information for Employer’s employees; their compensation, incentive plans, retirement plans, terms of employment, areas of expertise, projects, and
experience; and any similar information to which Employee has access by virtue of performing his/her duties for Employer.
“Proprietary and Confidential Information” includes any information, in whatever form or format, including that which has not been memorialized in writing.
C. EMPLOYER MATERIALS means documents or other media or tangible items that contain or embody PROPRIETARY AND CONFIDENTIAL INFORMATION or any other information concerning the business, operations or plans of
Employer and its customers and prospective customers, whether such documents have been prepared by Employee or by others. EMPLOYER MATERIALS include, but are not limited to blueprints, drawings, photographs, charts, graphs, notebooks, customer
lists, computer disks, photographs of proprietary information or documents on cell phones, iPads or other electronic devices, photocopies of proprietary information or documents, emails, text messages, tapes or printouts, sound recordings and other
printed, typewritten, handwritten or computer generated documents, as well as samples, prototypes, product collateral materials, advertising materials, models, products and the like.
Section 9.04 - Return of Employer’s Property: Upon termination of his/her employment with Employer for any reason, Employee will promptly deliver to Employer, without copying or summarizing, all
Trade and Business Secrets, Proprietary and Confidential Information, and Employer Materials that are in Employee’s possession or under Employee’s control, including, without limitation, all physical property, keys, documents, lists, electronic
storage media, cell phones, iPads, manuals, letters, notes, reports, including all originals, reproductions, recordings, disks, or other media.
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Employee acknowledges that Employee has been apprised of the provisions of Labor Code Section 2860 which provides: “Everything which an Employee acquires by virtue of his employment, except the compensation which is due
him from his Employer, belongs to the Employer, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment.” Employee understands that any work that Employee created or helped create at the request of
Employer, including user manuals, training materials, sales materials, customer and prospective customer information and business data, process manuals, and other written and visual works, are works made for hire in which Employer owns the
copyright. Employee may not reproduce or publish these copyrighted works, except in the pursuit of his/her employment duties with Employer.
Employee Initials ____
Section 9.05 - Separate Covenants: The covenants of Part IX of this Agreement shall be construed as separate covenants covering their particular subject matter. In the event that any covenant shall be found to be
judicially unenforceable, said covenant shall not affect the enforceability or validity of any other part of this Agreement.
Employee Initials ____
Section 9.06 - Continuing Obligation: Employee’s obligations set forth in Part IX of this Agreement shall expressly continue in effect beyond Employee’s employment period in accordance with their terms and such
obligations shall be binding on Employee’s assigns, executors, administrators and other legal representatives.
PART X
ARBITRATION
Section 10.01 - Dispute Resolution: Except as prohibited by law, the Parties agree that arbitration shall be the sole and exclusive remedy to redress any dispute, claim, or controversy (“Grievance”) involving the interpretation of this
Agreement, the terms and conditions of this Agreement, or any other claims arising out of Employee’s employment with Employer or the termination thereof. It is the intention of the Parties that the arbitration decision will be final and binding
and that any and all Grievances shall be disposed of as described herein.
Section 10.02 - Process.
A. Grievance. Any and all Grievances must be submitted in writing by the aggrieved Party. A Grievance from Employee shall be submitted to Employer’s Chief Executive Officer. Within Thirty (30) days following the submission of the
written Grievance, the Party to whom the Grievance is submitted shall respond in writing. If no written response is submitted within Thirty (30) days, the Grievance shall be deemed denied.
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B. Mediation. If the Grievance is denied, and before invoking the arbitration procedure described below, at the Bank’s option and with Employee’s agreement, the Parties shall first participate in mediation. The mediator shall be
selected by mutual agreement of the Parties, and shall be conducted in San Xxxxxxx County, California, or such other location as is mutually agreed. The mediation cost (other than attorney fees) shall be borne by Employer.
C. Arbitration. Unless otherwise prohibited by law or specified below, if the Grievance is denied and mediation is unsuccessful, either Party may, within Thirty (30) days of such denial, and prior to the expiration of any applicable
statute of limitations, refer the Grievance to arbitration before a single arbitrator pursuant to the Federal Arbitration Act, 9 U.S.C. section 1 et seq., administered by JAMS pursuant to its Employment Arbitration Rules then in effect, and subject
to JAMS’ Policy on Employment Arbitration Minimum Standards of Procedural Fairness. Both Parties shall be entitled to adequate discovery prior to the arbitration as determined by the arbitrator, who shall be selected in accordance with JAMS’
rules. Both Employee and Employer shall have the right to be represented by counsel of his/her/its choice, and Employee will be responsible for retaining his/her own attorney. Employee understands that copies of the JAMS rules and policy are
available to him/her at xxxx://xxx.xxxxxxx.xxx. The arbitration shall take place in San Xxxxxxx County, California, unless an alternative location is mutually agreed.
i. The Parties will select a single arbitrator. If no agreement on an arbitrator can be reached, the arbitrator will be selected by alternately striking names from a list of qualified employment arbitrators supplied by JAMS (i.e., Employee strikes one, Employer strikes one, and so forth; the last name remaining is the arbitrator selected). The arbitrator shall have the
exclusive authority to decide whether the conduct complained of in section (A) above violates the complaining Party’s rights, and if so, to grant any relief authorized by law. The arbitrator also shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this arbitration agreement,
including, but not limited to, any claim that all or any part of this arbitration agreement is void or voidable. The arbitrator shall not have the authority to modify, change or refuse to enforce the lawful terms of any employment agreement between the parties and/or any lawful policy or benefit plan.
ii. Employer shall bear any costs unique to the arbitration proceeding. If Employer prevails, Employee will pay the cost of arbitration to the extent
permissible under applicable law. Each Party shall pay his/her/its own attorney fees, unless the arbitrator orders otherwise pursuant to applicable law.
iii. Arbitration shall be the exclusive final remedy for any dispute between the Parties, including, but not limited to, claims for
discrimination or harassment (such as claims under the California Fair Employment and Housing Act and similar state and local laws) , Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age
Discrimination in Employment Act), wrongful termination , breach of contract, breach of public policy, bad faith, infliction of physical or mental harm or distress, claims for benefits (except where an employee benefit or pension plan
specifies a procedure for resolving claims different from this one), and/or any other disputes, and the Parties agree
that no dispute shall be submitted to arbitration where the complaining Party has not complied with the preliminary steps provided for in sections (A) and (B) above.
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iv. Employer and Employee expressly intend and agree as follows: (1) that class action, collective action, and representative action
procedures shall not be asserted, nor will they apply, in any arbitration pursuant to this agreement to arbitrate; (2) that neither Employer nor Employee will assert, participate in, or join class action, collective action, or representative action claims against the other in arbitration or otherwise; and (3) that Employer and Employee shall only submit his/her/its own, individual claims in arbitration and will not seek to represent the interests of any other person, except to the extent a representative action under the
California Private Attorneys General Act (or other similar law) is, as a matter of law, not deemed subject to such a waiver.
v. Nothing in this agreement to arbitrate shall be construed as limiting Employee’s right to file a claim with or seek the assistance of the Equal Employment Opportunity Commission, the National Labor Relations Board, the Department of Labor, or any similar state or federal administrative agency; however, any claim that cannot be resolved administratively or is not
submitted to the applicable agency for resolution shall be subject to this agreement to arbitrate. The following disputes and claims are not covered by this agreement to arbitrate and shall therefore be resolved by both Employee and Employer in
any appropriate forum, including courts of law, as required by the laws then in effect: (i) claims for workers’ compensation
benefits ; (ii) claims for unemployment insurance benefits; and (iii) claims for state or federal disability insurance
benefits; and (c) neither Employee nor Employer waives the right to seek, through judicial process, preliminary injunctive relief to preserve the status quo or prevent irreparable injury before the matter can be heard in arbitration.
vi. The arbitrator shall issue a written arbitration decision stating the arbitrator’s essential findings and conclusions upon which any award is based.
vii. This agreement to arbitrate will survive the termination of Employee’s employment.
If any court of competent jurisdiction declares that any part of this agreement to arbitrate is illegal, invalid or unenforceable, such
a declaration will not affect the legality, validity or enforceability of the remaining parts of the agreement to
arbitrate, and the illegal, invalid or unenforceable part will no longer be part of this Agreement.
BOTH EMPLOYEE AND EMPLOYER WAIVE THEIR CONSTITUTIONAL RIGHT TO HAVE MATTERS COVERED BY THIS AGREEMENT DETERMINED BY A JURY. Either Party may bring an action in any court of competent jurisdiction
to compel arbitration under this Agreement and to enforce an arbitration award. A Party opposing enforcement of the award itself may bring a separate action in a court of competent jurisdiction to set aside the award on grounds allowable under
federal or California law regulating arbitration, as applicable.
Employee Initials ____
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PART XI
TAXES
Section 11.01 - Withholding: All payments to be made to Employee under this Agreement will be subject to required withholding of federal, state and local income and employment taxes as applicable.
A. Notwithstanding any provision to the contrary in this Agreement, Employer shall delay the commencement of payments or benefits coverage to which Employee would otherwise become entitled under the Agreement in connection with
Employee’s termination of employment until the earlier of (i) the expiration of the six-month period measured from the date of Employee’s “separation from service” with Employer (as such term is defined in Treasury Regulations issued under Section
409A of the Code (defined below)) or (ii) the date of Employee’s death, if Employer in good faith determines that Employee is a “specified employee” within the meaning of that term under Code Section 409A at the time of such separation from service
and that such delayed commencement is otherwise required in order to avoid a prohibited distribution under Section 409A(a)(2) of the Code. Upon the expiration of the applicable Code Section 409A(a)(2) deferral period, all payments and benefits
deferred pursuant to this Section 11.02 (whether they would have otherwise been payable in a single sum or in installments in the absence of such deferral) shall be paid or reimbursed to Employee in a lump sum, and any remaining payments and
benefits due under the Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
B. In addition, to the extent Employer is required pursuant to this Agreement to reimburse expenses incurred by Employee, and such reimbursement obligation is subject to Section 409A of the Code, Employer shall reimburse any such
eligible expenses by the end of the calendar year next following the calendar year in which the expense was incurred, subject to any earlier required deadline for payment otherwise applicable under this Agreement; provided, however, that the
following sentence shall apply to any tax gross-up payment and related expense reimbursement obligation, including any payment obligations described in Section 8.01, to the extent subject to Section 409A. Any such tax gross-up payment will be made
by the end of the calendar year next following the calendar year in which Employee remits the related taxes.
C. For purposes of the provisions of this Agreement which require commencement of payments or benefits subject to Section 409A upon a termination of employment, the terms “termination of employment” and
“Separation Date” shall mean a “separation from service” with Employer (as such term is defined in Treasury Regulations issued under Code Section 409A), notwithstanding
anything in this Agreement to the contrary.
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D. In each case where this Agreement provides for the payment to the Employee of an amount that constitutes nonqualified deferred compensation under Section 409A and such payment is subject to the execution and non-revocation of a
release of claims, (1) any payments delayed pending the effectiveness of the release shall be accumulated and paid in a lump sum following the effectiveness of the release, with any remaining payments due paid in accordance with the schedule
otherwise provided herein, and (2) if the period between the Separation Date and the last day on which the release could become irrevocable assuming the Employee’s latest possible execution and delivery of the release spans two calendar years, then
such deferred payments shall not be made before the second calendar year, even if the release becomes irrevocable in the first calendar year, if such payments constitute nonqualified deferred compensation under Section 409A.
E. Any series of payments provided under this Agreement (excluding plans or agreements incorporated by reference) shall for all purposes of Code Section 409A be treated as a series of separate payments and not as single payments.
F. The provisions of this Part XI are intended to comply with Code Section 409A and shall be interpreted consistent with such section.
GENERAL PROVISIONS
Section 12.01 - Notices: Any notice to be given to Employer under the terms of this Agreement, and any notice to be given to Employee, shall be addressed to such Party at the mailing address the Party may hereafter
designate in writing to the other. Any such notice shall be deemed to have been duly given four days after the same shall be enclosed in a properly sealed and addressed envelope, registered or certified, and deposited (postage or registry or
certification fee prepaid) in a post office or branch post office regularly maintained by the United States Government or upon actual delivery to the Party by messenger or delivery service, with receipt acknowledged in writing by the Party to whom
such notice is addressed.
Section 12.02 - Entire Agreement: This Agreement and the agreements incorporated by reference herein (“Farmers & Merchants Bank of Central California Executive Retirement Plan” and “Farmers & Merchants Bank of Central California Deferred Compensation Plan”) supersede any and all other agreements or understandings, whether oral, implied, or in writing, between the parties hereto with respect to
the subject matter hereof and contain all of the covenants and agreements between the Parties with respect to such matters in their entirety. Each Party to this Agreement acknowledges that no representations, inducements, promises or agreements,
orally or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which is not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. Any
modification(s) to this Agreement will be effective only if in writing and signed by the Parties hereto.
Section 12.03 - Notwithstanding any other provision of this Agreement, this Agreement and all rights and obligations of the Parties hereunder shall be subject to the provisions of the Federal Deposit Insurance Act and the regulations adopted
thereunder, including without limitation 12 Code of Federal Regulations, Part 359.
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Section 12.04 - Partial Invalidity: If any provisions in this Agreement are held by a court of competent jurisdiction or an arbitrator 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.
Section 12.05 - Continuing Obligations: The obligations of the covenants contained in this Agreement shall survive the termination of the Agreement and any employment relationship between Employer and Employee.
Accordingly, neither Employer nor Employee shall be relieved of the continuing obligations of the covenants contained in this Agreement.
Section 12.06 - Employee’s Representations: Employee represents and warrants that Employee is free to enter into this Agreement and to perform each of the terms and covenants in it. Employee represents and warrants that
Employee is not restricted or prohibited, contractually or otherwise, from entering into and performing this Agreement, and that Employee’s execution and performance of this Agreement is not a violation or breach of any other agreement or other
legal obligation between Employee and any other person or entity.
Section 12.07 - Governing Law: This Agreement (not including any plans or agreements incorporated by reference) shall be construed and enforced in accordance with, and the rights of the Parties
shall be governed by, the laws of the State of California.
Section 12.08 - Full Settlement: Employer’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set off, counterclaim,
recoupment, defense or other claim, right or action which Employer may have against Employee or others. In no event shall Employee be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to
Employee under any of the provisions of this Agreement and such amount shall not be reduced whether or not Employee obtains other employment.
Section 12.09 - Successors: This Agreement shall be binding upon and enforceable against any successors to Employer. No duties provided for under this Agreement may be delegated by any of the parties hereto. Employer
will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and assets of Employer to assume expressly and agree as of the effective time of the Change of
Control to perform this Agreement in the same matter and to the same extent that Employer would be required to perform it if no such succession had taken place. If any such successor pursuant to a Change of Control of Employer or Bancorp under
Section 8.01.1(iii) (but not under (i), (ii) or (iv)) fails to so assume or agree as of the effective time of the Change in Control to perform this Agreement, then Employee shall immediately be entitled to a payment equal to the total Severance
Payment described in Section 7.01.1, payable in one lump sum, less any withholding required by state, federal or local law, upon the closing or other occurrence of the Change in Control transaction, in addition to any payments that Employee may
otherwise be entitled to receive under this Agreement, and without regard to any conditions on payment set forth in such Section 7.01 (including, but not limited to, conditions of continued employment, continued loyalty or execution and
non-revocation of a release). As used herein, the term “Bank” shall mean Employer as hereinbefore defined and any successor to its business and assets as aforesaid which assumes and agrees to perform this Agreement by operation of law or otherwise.
This Agreement shall inure to the benefit of and be enforceable by Employee’s legal representatives.
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Section 12.10 - No Waiver: The failure of any of the Parties hereto to insist on strict compliance with any provision of this Agreement, or the failure to assert any right of any Party hereto may have hereunder, shall not be deemed to be a
waiver of such provision or right or of any other provision or right contained in this Agreement.
Section 12.11 – Advice of Counsel: Employee warrants that he/she has consulted with legal counsel of his/her choice to advise him/her with respect to the terms and conditions of this Agreement.
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FARMERS & MERCHANTS BANK OF
CENTRAL CALIFORNIA and FARMERS &
MERCHANTS BANCORP
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By:
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/s/ Xxxxxx Xxxxx, Xx.
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Xxxxxx Xxxxx, Xx.
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Chairman of the Personnel Committee
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Employee:
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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