PLUMAS BANK DEFERRED FEE AGREEMENT
Exhibit 10.37
PLUMAS BANK
This Deferred Fee Agreement (Agreement) is entered into this 30th day of April, 2009 by and between
Plumas Bank (Bank), and Xxxxx Xxxxxxxxxxxx (Director).
RECITALS
WHEREAS, the Director is on the Bank’s board of directors, and has faithfully served the Bank for
many years. It is the consensus of the board of directors (Board) and its compensation committee
that the Director’s services have been of exceptional merit and an invaluable contribution to the
profits and position of the Bank in its field of activity; and
WHEREAS, it is deemed to be in the best interests of the Bank to provide the Director with certain
benefits, on the terms and conditions set forth herein, in order to reasonably induce the Director
to remain on the Bank’s board of directors; and
WHEREAS, section 885 of the American Jobs Creation Act of 2004 amended the Internal Revenue Code
(Code) to add section 409A implementing detailed rules regarding deferred compensation.
ACCORDINGLY, it is the desire of the Bank and the Director to enter into this Agreement in good
faith compliance with the requirements of Code section 409A, and the final Treasury regulations.
NOW, THEREFORE, in consideration of the services to be performed in the future, as well as the
mutual promises and covenants contained herein, the Director and the Bank agree as follows:
AGREEMENT
ARTICLE I. TERMS AND DEFINITIONS
| 1.01. | Change In Control. “Change In Control” means the first to occur of any of the
following events: |
| A. | Change In The Ownership Of The Bank. |
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The date that any one person, or more than one person acting as a group, acquires
ownership of stock in the Bank that, together with stock held by such person or
group, constitutes more than fifty percent (50%) of the total fair market value
or total voting power of the stock of the Bank. For this purpose, acquisition of
additional stock of the Bank by any one person or persons acting as a group does
not constitute a Change In Control if the same person or persons are considered
to own more than fifty percent (50%) of the total fair market value or total
voting power of the stock of the Bank immediately prior to the acquisition. |
| B. | Change In The Effective Control Of The Bank. |
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The date that either: |
| 1. | Any one person, or more than one person acting as a
group, acquires (or has acquired during the twelve (12) month period ending
on the date of the most recent acquisition by such person or persons)
ownership of stock of the Bank possessing at least thirty-five percent (35%)
or more of the total voting power of the stock of the Bank; or |
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| 2. | A majority of members of the Board is replaced during any
twelve (12) month period by directors whose appointment or election is not
endorsed by a majority of the members of the Board prior to the date of the
appointment or election. |
| C. | Change In Ownership Of A Substantial Portion Of The Bank’s
Assets. |
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The date that any one person, or more than one person acting as a group, acquires
(or has acquired during the twelve (12) month period ending on the date of the
most recent acquisition by such person or persons) assets from the Bank that have
a total gross fair market value equal to more than forty percent (40%) of the
total gross fair market value of the assets of the Bank immediately prior to such
acquisition or acquisitions. For this purpose, the fair market value of the
assets of the Bank shall be determined without regard to any liabilities
associated with such assets. A transfer of assets by the Bank does not
constitute a Change In Control if the assets are transferred to: |
| 1. | A person, or more than one person acting as a group, that
is a shareholder of the Bank immediately prior to the transfer in exchange
for its stock; |
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| 2. | An entity, fifty percent (50%) or more of the total
voting power of which, is owned, directly or indirectly, by the Bank
immediately after the transfer of assets; |
| 3. | A person, or more than one person acting as a group, that
owns, directly or indirectly, fifty percent (50%) or more of the total
voting power of all of the outstanding stock of the Bank immediately after
the transfer of assets; or |
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| 4. | An entity, at least fifty percent (50%) or more of the
voting power of which is owned, directly or indirectly, by a person
described in paragraph 3 of this subsection immediately after the transfer
of assets. |
| 1.02. | Code. “Code” shall mean the Internal Revenue Code of 1986, as amended. |
|
| 1.03. | Disability/Disabled. “Disability” or “Disabled” shall mean the Director: (i) is
unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than twelve (12) months; or (ii) is, by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or can be expected to last for a continuous period of not less than twelve (12) months,
receiving income replacement benefits for a period of not less than three (3) months under an
accident and health plan covering employees or directors of the Bank. Medical determination
of Disability may be made by either the Social Security Administration or by the provider of
an accident or health plan covering employees or directors of the Bank provided that the
definition of “disability” applied under such disability insurance program complies with the
requirements of the preceding sentence. Upon the request of the plan administrator, the
Director must submit proof to the plan administrator of the Social Security Administration’s
or the provider’s determination. |
|
| 1.04. | “Election Form” means the Form attached as Exhibit 1. |
|
| 1.05. | “Fees” means the total directors fees payable to the Director. |
|
| 1.06. | “Specified Employee” means an employee who at the time of Termination of Service is
a key employee of the Bank, if any stock of the Bank is publicly traded on an established
securities market or otherwise. For purposes of this Agreement, an employee is a key employee
if the employee meets the requirements of Code section 416(i)(1)(A)(i), (ii), or (iii)
(applied in accordance with the regulations thereunder and disregarding section 416(i)(5)) at
any time during the twelve (12) month period ending on December 31 (the “identification
period”). If the employee is a key employee during an identification period, the employee is
treated as a key employee for purposes of this Agreement
during the twelve (12) month period that begins on the first day of April following the
close of the identification period. |
| 1.07. | Specified Time. “Specified Time” shall mean the date, if any, elected by the
Director on the Election Form on which payment of the Director’s deferral account will
commence to the Director absent earlier payment to the Director upon one of the events
described in Article IV, V, or VI. |
|
| 1.08. | Termination of Service. “Termination of Service” shall mean the expiration of the
Director’s contract, if the expiration constitutes a good faith and complete termination of
the contractual relationship. An expiration does not constitute a good faith and complete
termination of the contractual relationship if the Bank anticipants a renewal of a contractual
relationship or the Director becoming an employee of the Bank. The Bank is considered to
anticipate the renewal of the contractual relationship with the Director if it intends to
contract again for the services provided under the expired contract, and neither the Bank nor
the Director has eliminated the Director as a possible provider of services under any new
contract. Further, a Bank is considered to intend to contract again for the services provided
under an expired contract if the Bank’s doing so is conditioned only upon incurring a need for
the services, the availability of funds, or both. |
|
| 1.09. | Unforeseeable Financial Emergency. |
| A. | “Unforeseeable Financial Emergency” means a severe financial hardship to
a Director resulting from (i) an illness or accident of the Director, the Director’s
spouse, the Director’s beneficiary, or the Director’s dependent (as defined in Code
section 152(a), without regard to Code section 152(b)(1), (b)(2), and (d)(1)(B));
(ii) a loss of the Director’s property due to casualty (including, but not limited
to, the need to rebuild a home following damage to a home not otherwise covered by
insurance); or (iii) such other similar extraordinary and unforeseeable
circumstances arising as a result of event beyond the control of the Director, all
as determined in the sole and absolute discretion of the Bank. |
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| B. | Such extraordinary and unforeseeable circumstances may, depending on the
facts and circumstances, include, but are necessarily not limited to (i) imminent
foreclosure of or eviction from the Director’s primary residence; (ii) the need to
pay for medical expenses, including nonrefundable deductibles, as well as the costs
of prescription drug medication; and (iii) the need to pay for the funeral expenses
of a spouse, a beneficiary, or a dependent (as defined in Code section 152(b)(1),
(b)(2), and
(d)(1)(B)). The purchase of a home and the payment of college tuition do not
constitute an Unforeseeable Financial Emergency. |
ARTICLE II. DEFERRAL ELECTION
| 2.01. | Initial Election. The Director must complete, sign and deliver an Election Form
irrevocably electing the amount of Fees to be deferred to the Bank, and the Bank must receive
and accept such completed and signed Election Form no later than the last day of the calendar
year immediately preceding the calendar year in which the services giving rise to the Fees to
which the deferral election relates are to be performed. If the Director does not deliver an
Election Form on a timely basis with respect to a calendar year, the Director shall be deemed
to have elected to defer zero (0) Fees for such calendar year. Notwithstanding the foregoing,
in the year in which the Agreement is first implemented, the Director may make an irrevocable
election to defer Fees for services to be performed subsequent to the election within thirty
(30) days of the effective date of this Agreement, provided that such election shall only be
effective for Fees earned after the election is made. |
|
| 2.02. | Election Changes. The Director may not modify or revoke a deferral election during
a calendar year by changing the amount of Fees deferred except in the case of an Unforeseeable
Financial Emergency pursuant to the Unforeseeable Financial Emergencies article, below. A
valid deferral election shall apply only to the calendar year specified on the applicable
Election Form. The Director must deliver an Election Form to the Bank prior to each calendar
year to defer Fees. |
|
| 2.03. | Termination Of
Participation And Deferrals. |
|
If the Bank determines in good faith that the
Director no longer qualifies as a member of a select
group of management or highly compensated employees,
as membership in such group is determined in
accordance with sections 201(2), 301(a)(3) and
401(a)(1) of Employee Retirement Income Security Act
of 1974, as amended (ERISA), the Bank shall have the
right, in its sole discretion, to (i) terminate any
deferral election the Director has made as of the end
of the calendar year in which the Director’s status
changes; (ii) prevent the Director from making future
deferral elections; and/or, (iii) immediately
distribute the balance of the Director’s Deferral
Account to a separate nonqualified deferred
compensation plan and terminate the Director’s
participation in the Agreement. |
ARTICLE III. DEFERRAL ACCOUNT
| 3.01. | Establishing and Crediting. The Bank shall establish a deferral account (Deferral
Account) on its books for the Director, and shall credit to the Deferral Account the following
amounts: |
| A. | Deferrals. The Fees deferred by the Director as of the time the
Fees would have otherwise been paid to the Director. |
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| B. | Interest. On a quarterly basis and immediately prior to the
payment of any benefits, interest shall be credited to the Deferral Account with an
annual interest rate equal to the floating Wall Street Journal Prime Rate as of the
first business day of the month for such month or part thereof that interest is to
be credited minus one percent (1%) per annum. Interest on the Deferral Account
shall be compounded quarterly. Interest shall continue to accrue on the Deferral
Account until all benefits have been paid. |
| 3.02. | Statement of Accounts. The Bank shall provide to the Director, within one hundred
twenty (120) days after each anniversary of this Agreement, a statement setting forth the
Deferral Account balance. |
|
| 3.03. | 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 Director is a general unsecured creditor of the Bank for the payment of benefits.
The benefits represent the mere Bank promise to pay such benefits. The Director’s rights to
such benefits are not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by the Director’s creditors. |
ARTICLE IV. LIFETIME BENEFITS
| 4.01. | Specified Time. Upon a Specified Time, the Bank shall distribute to the Director
the benefit described in this Section 4.01. |
| A. | Amount of Benefit. The benefit under this Section 4.01 is the
Deferral Account balance elected to be paid at the Specified Time including interest
to the time of payment as provided in Section 3.01B. |
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| B. | Payment of Benefit. The Bank shall pay the benefit to the Director
in a lump sum within fifteen (15) days following the Specified Time. |
| 4.02. | Termination Benefit. Upon the Director’s Termination of Service prior to the
Specified Time, the Bank shall distribute to the Director the benefit described in this
Section 4.02. |
| A. | Amount of Benefit. The benefit under this Section 4.02 is the
Deferral Account balance at the date of the Director’s Termination of Service
including interest to the time of payment as provided in Section 3.01B. |
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| B. | Payment of Benefit. The Bank shall pay the benefit to the
Director in a lump sum within fifteen (15) days following the Director’s Termination
of Service. |
| 4.03. | Disability Benefit. Upon the Director’s Termination of Service due to Disability
prior to the Specified Time, the Bank shall pay to the Director the benefit described in this
Section 4.03. |
| A. | Amount of Benefit. The benefit under this Section 4.03 is the
Deferral Account balance at the date of the Director’s Termination of Service due to
Disability including interest to the time of payment as provided in Section 3.01B. |
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| B. | Payment of Benefit. The Bank shall pay the benefit to the
Director in a lump sum within fifteen (15) days following the Director’s Termination
of Service due to Disability. |
| 4.04. | Change of Control Benefit. Upon a Change of Control while the Director is in the
active service of the Bank and prior to the Specified Time, the Bank shall pay to the Director
the benefit described in this Section 4.04 in lieu of any other benefit under this Agreement. |
| A. | Amount of Benefit. The benefit under this Section 4.04 is the
Deferral Account balance at the date of the Change of Control including interest to
the time of payment as provided in Section 3.01B. |
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| B. | Payment of Benefit. The Bank shall pay the benefit to the
Director in a lump sum within fifteen (15) days after the date of the Change of
Control. |
| 4.05. | Permissible Delays In Distribution Date. Notwithstanding the foregoing, payment of
the Director’s Deferral Account shall be deemed to commence on the applicable payment date set
forth above under any of the following circumstances: |
| A. | If payment commences no later than the later of (i) the last day of the
calendar year which includes the payment date; or (ii) the fifteenth
(15th) day of the third (3rd) month following the payment
date; |
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| B. | If calculation of the payment amount is not administratively practicable
due to events beyond the control of the Bank, provided that payment is made during
the first calendar year in which calculation of the payment is administratively
practicable; or |
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| C. | If the making of the payment on the applicable payment date would
jeopardize the ability of the Bank to continue as a going concern, payment commences
no later than December 31st of the first calendar year in which the
making of the payment would not have that effect. |
| 4.06. | Subsequent Deferrals. The Director may specify a later date for commencement of
payment of his or her account at a Specified Time by submitting a new Election Form to the
Bank, provided that (i) the subsequent election does not take effect for at least twelve (12)
months after it is made, (ii) the lump sum payment with respect to the subsequent election is
deferred for a period of not less than five (5) years, and (iii) any subsequent election with
respect to the timing of payment is made not less than twelve (12) months before the lump sum
payment is to commence pursuant to the prior election. |
ARTICLE V. DEATH BENEFITS
| 5.01. | Death During Active Service. If the Director dies while in the active service of
the Bank and prior to the Specified Time, the Bank shall pay to the Director’s beneficiary the
benefit described in this Section 5.01 and such benefit shall be in lieu of any other benefit
in this Agreement. |
| A. | Amount of Benefit. The benefit under Section 5.01 is the
Deferral Account balance at the time of the Director’s death including interest to
the time of payment as provided in Section 3.01B. |
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| B. | Payment of Benefit. The Bank shall pay the benefit in a lump sum
within fifteen (15) days following the Director’s death. |
ARTICLE VI. UNFORESEEABLE FINANCIAL EMERGENCIES
If a Director experiences an Unforeseeable Financial Emergency, the Director may, to the extent
permitted under Code section 409A and applicable regulations, petition the Bank in writing to (i)
cancel any Annual Deferral Amount
required to be made by the Director; and/or (ii) receive a partial or full payout from his or her
Deferral Account, valued as of the most recent Valuation Date. No payout shall be made to the
extent that the cancellation of an Annual Deferral relieves the Unforeseeable Financial Emergency.
The payout shall not exceed the lesser of the balance credited to the Director’s Deferral Account
or the amount reasonably needed to satisfy the Unforeseeable Financial Emergency, plus, in the
latter case, an amount needed to pay taxes reasonably anticipated as a result of the distribution
after taking into account amounts that the Director may receive through reimbursement or
compensation from insurance or liquidation of the Director’s assets (to the extent such liquidation
would not itself cause a severe financial hardship). If, subject to the sole and absolute
discretion of the Bank, the petition for a cancellation and/or payout is approved, cancellation
shall take effect upon the date of approval, and any payout shall be made within sixty (60) days of
the date of approval. Following approval of a payout under this paragraph, a Director shall not be
permitted to resume deferrals under the plan until the later of six (6) months following such
withdrawal or the first day of the following calendar year. If a Director petitions the Bank only
to cancel deferrals and the Bank approves such cancellation, the Director shall not be permitted to
resume deferrals under the plan until the first day of the following calendar year. In each case,
a Director must resume deferrals by completing a new Election Form and submitting it by the end of
the year prior to the year in which deferrals will resume.
ARTICLE VII. RESTRICTION ON TIMING OF DISTRIBUTIONS
Notwithstanding any provision of this Agreement to the contrary, if the Director is considered a
Specified Employee, the provisions of this Article shall govern any distributions hereunder which
would otherwise be made to the Director due to a Termination of Service. Such distributions shall
not be made during the first six (6) months following Termination of Service unless the Director
dies prior to the end of such six (6) month period. Rather, any distribution which would otherwise
be paid to the Director during such period shall be accumulated and paid to the Director in a lump
sum on the first day of the seventh (7th) month following the Termination of Service.
All subsequent distributions shall be paid in the manner otherwise specified herein.
ARTICLE VIII. BENEFICIARIES
| 8.01. | Beneficiary Designations. The Director shall designate a beneficiary by filing a
written designation with the Bank. The Director may revoke or modify the designation at any
time by filing a new designation. However, designations will only be effective if signed by
the Director and accepted by the Bank during the Director’s lifetime. The Director’s
beneficiary designation shall be deemed automatically revoked if the beneficiary predeceases
the Director, or if the Director names a spouse as beneficiary and the marriage is
subsequently dissolved. If the Director
dies without a valid beneficiary designation, all payments shall be made to the
Director’s surviving spouse, if any, and if none, to the Director’s surviving children
and the descendants of any deceased child by right of representation, and if no children
or descendants survive, to the Director’s estate. |
| 8.02. | 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
Bank 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 Bank may require proof of
incompetency, minority or guardianship as it may deem appropriate prior to distribution of the
benefit. Such distribution shall completely discharge the Bank from all liability with
respect to such benefit. |
ARTICLE IX. CLAIMS AND REVIEW PROCEDURES
| 9.01. | Claims Procedure. The Bank shall notify the Director’s beneficiary in writing,
within ninety (90) days of his or her written application for benefits, of his or her
eligibility or noneligibility for benefits under the Agreement. If the Bank determines that
the beneficiary 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 beneficiary wishes to have the
claim reviewed. If the Bank determines that there are special circumstances requiring
additional time to make a decision, the Bank shall notify the beneficiary 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 ninety (90) day period. |
|
| 9.02. | Review Procedure. If the beneficiary is determined by the Bank not to be eligible
for benefits, or if the beneficiary believes that he or she is entitled to greater or
different benefits, the beneficiary shall have the opportunity to have such claim reviewed by
the Bank by filing a petition for review with the Bank within sixty (60) days after receipt of
the notice issued by the Bank. Said petition shall state the specific reasons which the
beneficiary believes entitle him or her to benefits or to greater or different benefits. |
|
Within sixty (60) days after receipt by the Bank of the petition, the Bank shall afford
the beneficiary (and counsel, if any) an opportunity to present
his or her position to the Bank orally or in writing, and the beneficiary (or counsel)
shall have the right to review the pertinent documents. The Bank shall notify the
beneficiary of its decision in writing within the sixty (60) day period, stating
specifically the basis of its decision, written in a manner calculated to be understood
by the beneficiary and the specific provisions of the Agreement on which the decision is
based. If, because of the need for a hearing, the sixty (60) day period is not
sufficient, the decision may be deferred for up to another sixty (60) day period at the
election of the Bank, but notice of this deferral shall be given to the beneficiary. |
ARTICLE X. AMENDMENTS AND TERMINATION
| 10.01. | Amendment. This Agreement may be amended by the Bank and Director. However, no
amendment shall reduce the amount credited to the Director’s Deferral Account as of the date
the amendment is adopted. Any amendment shall be in writing, in conformance with section 409A
of the Code and adopted by the board of directors. The Director shall be bound by the
amendment. The Bank specifically reserves the right to amend the Agreement as necessary to
comply with section 409A of the Code. |
|
| 10.02. | Termination. The Bank may terminate this Agreement at any time if, pursuant to a
violation of Code section 409A, continuation of the Agreement would cause benefits to be
taxable to the Director prior to actual receipt. Upon such a violation, the Bank shall
distribute the amount of the Director’s Deferral Account that becomes taxable. The Bank can
also terminate this Agreement at any time and for any reason in its sole and absolute
discretion, in which event (i) all deferrals shall cease as of the end of the calendar year in
which the Agreement is terminated, and (ii) unless the Agreement is terminated under the
Termination Under Section 409A paragraph below, the Director’s Deferral Account balance shall
be paid at the time and in the manner otherwise specified in this Agreement. Although the
Bank anticipates that it will continue this Agreement for an indefinite period of time, there
is no guarantee that the Bank will continue this Agreement or will not terminate this
Agreement at any time in the future. |
|
| 10.03. | Termination Under Section 409A. Notwithstanding anything to the contrary in this
Agreement, this Agreement may be terminated by the Bank, or its successor, in the following
circumstances: |
| A. | Within thirty (30) days before or twelve (12) months after a change in
ownership or effective control of the Bank, or in the ownership of a substantial
portion of the assets of the Bank as described in section 409A(2)(A)(v) of the Code,
provided that all
distributions are made no later than twelve (12) months following such
termination of this Agreement and further provided that all the Bank’s
arrangements which are substantially similar to this Agreement are terminated so
all participants in similar arrangements are required to receive all amounts of
compensation deferred under the terminated arrangements within twelve (12) months
of such terminations; |
| B. | Upon the Bank’s dissolution or with the approval of a bankruptcy court
provided that the amounts deferred under this Agreement are included in the
Director’s gross income in the latest of (i) the calendar year in which this
Agreement terminates; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first calendar year in
which the distribution is administratively practical; or |
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| C. | Upon the Bank’s termination of this Agreement and all other arrangements
that would be aggregated with this Agreement pursuant to Treasury regulation section
1.409A-1(c) if any of the participant’s participated in such arrangements (Similar
Arrangements), provided that (i) the termination and liquidation does not occur
proximate to the downturn in the financial health of the Bank; (ii) all termination
distributions are made no earlier than twelve (12) months and no later than
twenty-four (24) months following such termination; and (iii) the Bank does not
adopt any new arrangement that would be a Similar Arrangement for a minimum of three
(3) years following the date the Bank takes all necessary action to irrevocably
terminate and liquidate this Agreement. |
For purposes of this paragraph, the Bank shall include any corporation that is a member
of a controlled group of corporations (as defined in Code section 414(b)) that includes
the Bank and any trade or business (whether or not incorporated) that is under common
control (as defined in Code section 414(c)) with the Bank. The Bank may distribute the
vested Deferral Account, as determined as of the date of the termination of this
Agreement, to any of the participants in a lump sum subject to the above terms.
Notwithstanding anything in this Agreement to the contrary, the Director acknowledges and
agrees that any benefit otherwise payable hereunder may be reduced by reason of the
lawful order of any regulatory agency or body having jurisdiction over the Bank,
including, but not limited to, the Board of Governors of the Federal Reserve System and
Federal Deposit Insurance Corporation. |
ARTICLE XI. MISCELLANEOUS
| 11.01. | Binding Effect. This Agreement shall bind the Director and the Bank, and their
beneficiaries, survivors, executors, administrators and transferees. |
|
| 11.02. | No Guaranty of Employment. This Agreement is not a contract for services. It does
not give the Director the right to remain a director of the Bank, nor does it interfere with
the shareholders’ rights to replace the Director. It also does not require the Director to
remain a director nor interfere with the Director’s right to terminate services at any time. |
|
| 11.03. | Non-Transferability. Benefits under this Agreement cannot be sold, transferred,
assigned, pledged, attached or encumbered in any manner. |
|
| 11.04. | Tax Withholding. The Bank shall withhold any taxes that are required to be withheld
from the benefits provided under this Agreement. |
|
| 11.05. | 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. |
|
| 11.06. | Unfunded Arrangement. The Director and beneficiary are general unsecured creditors
of the Bank for the payment of benefits under this Agreement. The benefits represent the mere
promise by the Bank 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 of the Director. Any insurance on the Director’s life
is a general unpledged, unrestricted asset of the Bank to which the Director and beneficiary
have no preferred or secured claim. Furthermore, such insurance shall not be deemed to be
held under any trust for the benefit of the Director or his or her beneficiaries or to be
security for the performance of the obligation of Bank under this Agreement. |
IN WITNESS WHEREOF, the Director and a duly authorized Bank officer have signed this Agreement.
| DIRECTOR | PLUMAS BANK | |||||||
/s/ Xxxxx Xxxxxxxxxxxx
|
By: | X. X. Xxxxxx | ||||||
| President & CEO | ||||||||
EXHIBIT I
I, Xxxxx Xxxxxxxxxxxx, hereby provide notice of my election to defer fees under, and in accordance
with, the Supplemental Deferred Fee Agreement between Plumas Bank and Xxxxx Xxxxxxxxxxxx
(Agreement).
Please Type or Print In Ink:
| A. | PERSONAL INFORMATION. |
Social Security Number: |
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Address: |
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Telephone Number: |
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| B. | ACKNOWLEDGEMENTS AND AGREEMENTS. |
|
I hereby acknowledge and agree that I have received a copy of the Agreement setting forth
the terms and provisions of the Agreement, and I further acknowledge and agree to all of
such terms and provisions. I understand that my deferrals are subject to Section 409A of
the Internal Revenue Code of 1986, as amended. |
| C. | BENEFICIARY DESIGNATION |
|
I hereby designate the following beneficiary to receive any benefit payable on account of
my death under the Agreement, subject to my right to change this designation and subject
to the terms of the Agreement: |
| 1. | Primary Beneficiary |
Name: |
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Address: |
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Telephone Number: |
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Relationship to Director: |
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% of Deferral Account: |
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Date of Birth: |
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Social Security Number: |
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If there is more than ONE primary beneficiary, please list below:
Name: |
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Address: |
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Telephone Number: |
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Relationship to Director: |
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% of Deferral Account: |
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Date of Birth: |
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Social Security Number: |
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| 2. | Contingent Beneficiary (will receive indicated portions of Deferral
Account if no primary beneficiary survives the Director) |
Name: |
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Address: |
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Telephone Number: |
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Relationship to Director: |
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% of Deferral Account: |
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Date of Birth: |
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Social Security Number: |
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If there is more than ONE contingent beneficiary, please list below: |
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Name: |
|||
Address: |
|||
Telephone Number: |
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Relationship to Director: |
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% of Deferral Account: |
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Date of Birth: |
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Social Security Number: |
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| D. | DEFERRAL AMOUNT. |
|
I hereby irrevocably elect to reduce my fees by the amount(s) or percentage(s) indicated
below. I understand and acknowledge as follows: |
| 1. | This election will be irrevocable for the calendar year indicated below
unless I experience an unforeseeable financial emergency, as defined in the
Agreement, and I elect to change or revoke it; |
||
| 2. | This election shall apply to fees that I would otherwise receive during
the calendar year beginning after the date of this election (unless this is my first
election after becoming eligible to participate in the Agreement in which case I
will have 30 days from the date of my eligibility to make
my election to defer compensation earned after I make my election). I must
submit a new deferral election form on a timely basis to defer fees for any
future calendar year; |
| 4. | This election relates only to services performed and amounts earned by me
in the calendar year indicated below commencing after the date hereof; |
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| 5. | A contribution credit equal to my fee reduction election will be made
under the Agreement for my benefit; |
||
| 6. | My election must be in whole percentages; and |
||
| 7. | The fee deferral payouts are fully taxable to me in the year I receive
them and that applicable employment taxes may be taken out of my deferrals as
appropriate. |
Calendar year for which this election is effective:
. |
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Fee Reduction Percentage:
_____
% (Choose any whole percentage, which will apply to each payment of salary during the year) |
||
| E. | SPECIFIED-TIME PAYMENT ELECTION. |
|
I hereby irrevocably elect to have my deferral account, with respect to this Election
Form, paid to me in a lump sum on the date specified below provided it is prior to my
termination of employment, death, disability or a change in control of the employer. |
||
Date payment is to commence:
. |
||
| F. | CHANGE IN THE TIME OF PAYMENT. (Complete only if electing to delay payment of one or more
Specified-Time Payment Elections previously made) |
|
I hereby elect to change the time of the payment of my benefit as set forth below. I
acknowledge that I previously elected to be paid Specified-Time benefits on a specified
date. I may only change the time of the single lump sum to a later date by submitting a
new Election Form to the Bank, provided that (i) the subsequent election does not take
effect for at least 12 months after it is made, (ii) the separate payment subject to the
subsequent election is deferred for a period of not less than five years, and (iii) any
subsequent election with respect to the timing of such separate payment is made not less
than 12 months before payments are to commence pursuant to the plan or prior election.
If these criteria are not met the change in the proposed time of payment will not be
effective. In addition, if a distribution is made to you that violates these rules, you
will be subject to income tax on your entire benefit as well as an additional 20% tax. |
The above rules may be illustrated by the following example: |
||
Example. You previously elected to receive your Specified Time benefits on January 2,
2012. You do not believe you will need your benefits at that time. On or before January
1, 2011, you can file an election to defer your single lump sum payment from occurring on
January 2, 2012 to occurring on January 2, 2017, or a later Specified Time. |
| 1. | Effective (must be at least 12 months from the date of
this election), I hereby elect to have the single lump sum that would otherwise
begin being paid on paid on
. (must be at least five
years after scheduled payment date). |
||
| 2. | Effective (must be at least 12 months from the date of
this election), I hereby elect to have the single lump sum that would otherwise
begin being paid on paid on
. (must be at least five
years after scheduled payment date). |
||
| 3. | Effective (must be at least 12 months from the date of
this election), I hereby elect to have the single lump sum that would otherwise
begin being paid on paid on
. (must be at least five
years after scheduled payment date). |
| G. | DIRECTOR SIGNATURE. |
|
My signature below indicates my agreement and understanding that any election I make on
this form is subject to all the terms and conditions contained in the Agreement. I
hereby acknowledge having received a copy of the Agreement setting forth the terms and
provisions of the Agreement. |
| H. | BANK APPROVAL. |
