EXECUTIVE SALARY CONTINUATION AGREEMENT
THIS EXECUTIVE SALARY CONTINUATION AGREEMENT ("Agreement") is made and
entered into this 4th day of FEBRUARY 1997, by and between FEATHER RIVER STATE
BANK, a California banking corporation ("Bank"), and XXXXXX X. XXXXXX (the
"Executive")
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Bank as its President and Chief
Executive Officer; and
WHEREAS, the experience of the Executive, his knowledge of the affairs of
the Bank, and his reputation and contacts in the banking industry are so
valuable that assurance of his continued service is essential for the future
growth and profitability of the Bank and it is in the best interests of the Bank
to arrange terms of continued employment for the Executive so as to reasonably
assure his remaining in the Bank's employment during his lifetime or until the
age of retirement; and
WHEREAS, it is the desire of the Bank that the Executive's services be
retained as herein provided; and
WHEREAS, the Executive is willing to continue in the employ of the Bank
provided the Bank agrees to pay the Executive or his beneficiaries certain
benefits in accordance with the terms and conditions hereinafter set forth;
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NOW, THEREFORE, in consideration of the services to be performed in the
future as well as the mutual promises and covenants herein contained, it is
hereby agreed as follows:
ARTICLE l.
1.1. BENEFICIARY. The term Beneficiary shall mean the person or persons
whom the Executive shall designate in writing to receive the benefits provided
hereunder.
1.2. DISABILITY. The term disability shall mean the inability of the
Executive to perform the duties and responsibilities of his position with the
Bank in a normal and regular manner, due to mental or physical illness or
injury, for a period of ninety (90) consecutive days, or for fifty percent (50%)
or more of the normal working days during a period of one hundred eighty (180)
consecutive days. Determination of the Executive's disability shall be made by
the Bank's Board of Directors, which determination shall be made in its sole
discretion and shall be final and conclusive on all parties hereto. In the event
Executive is also a director of the Bank, the Executive shall be ineligible to
participate in such disability determination. Executive shall, if requested by
the Bank's Board of Directors, submit to a mental or physical examination to
assist the Board of Directors in making its determination of disability
hereunder.
1.3. NAMED FIDUCIARY AND PLAN ADMINISTRATOR. The Bank Fiduciary and Plan
Administrator of this plan shall be the Bank.
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1.4. CHANGE OF CONTROL. A "Change of Control" shall be deemed to have
occurred if (i) a tender offer shall be made and consummated for the ownership
of 25% or more of the outstanding voting securities of the Bank; (ii) the Bank
shall be merged or consolidated with another bank or corporation and as a result
of such merger or consolidation less than 75% of the outstanding voting
securities of the surviving or resulting bank or corporation shall be owned in
the aggregate by the former shareholders of the Bank, other than affiliates
(within the meaning of the Securities Exchange Act of 1934) of any party to such
merger or consolidation, as the same shall have existed immediately prior to
such merger or consolidation; (iii) the Bank shall sell substantially all of its
assets to another bank or corporation which is not a wholly-owned subsidiary; or
(iv) a person, within the meaning of Section 3 (a) (9) or of Section 13 (d) (3)
(as in effect on the date hereof) of the Securities Exchange Act of 1934, shall
require 25% or more of the outstanding voting securities of the Bank (whether
directly, indirectly, beneficially or of record) For purposes hereof, ownership
of voting securities shall take into account and shall include ownership as
determined by applying the provisions of Rule 13d-3(d)(1)(i) (as in effect on
the date hereof) pursuant to the Securities Exchange Act of 1934.
ARTICLE 2.
2.1. EMPLOYMENT. The Bank agrees to employ the Executive in such capacity
as the Bank may determine from time to time. The
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Executive shall continue in the employ of the Bank in such capacity and with
such duties and responsibilities as may be assigned to him, and with such
compensation as may be determined from time to time by the Board of Directors of
the Bank.
2.2. FULL EFFORTS. Executive shall devote his full business time and
efforts to the business and affairs of the Bank or the successor to the Bank by
which Executive is then employed pursuant to this Agreement; provided, however,
this provision shall not preclude Executive, with prior approval of the Bank,
from serving as a director or member of a committee of any other organization
involving no conflict of interests with the interests of the Bank, from engaging
in charitable and community activities, and from managing his personal
investments, provided that such activities do not interfere with the regular
performance of his duties and responsibilities to the Bank.
2.3. FRINGE BENEFITS. The salary continuation benefits provided by this
Agreement are granted by the Bank as a fringe benefit to the Executive and are
not part of any salary reduction plan or any arrangement deferring a bonus or a
salary increase. The Executive has no option to take any current payment or
bonus in lieu of these salary continuation benefits.
ARTICLE 3.
3.1. RETIREMENT. If the Executive shall continue in the employment of the
Bank until he attains the age of sixty-five (65) he may retire from active daily
employment as of the first day of
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the month next following attainment of age sixty-five (65) or upon such later
date as may be mutually agreed upon by the Executive and the Bank ("Retirement
Date").
3.2 PAYMENT. The Bank agrees chat upon such Retirement Date it will pay
to the Executive the annual sum of FORTY THOUSAND ONE HUNDRED Dollars
($40,100.00) payable monthly on the first day of each month following such
Retirement Date for a period of one hundred eighty (180) months; subject to the
conditions and limitations set forth in this Agreement. The FORTY THOUSAND ONE
HUNDRED Dollars ($40,100,00) annual payment amount may be adjusted as of the
first year in which it is to be paid to reflect changes in the federally
determined cost-of-living index and may be adjusted annually for each payment
year hereafter to reflect further changes in said federally determined cost-of-
living index. However, the Bank is not obligated hereunder to make any such
adjustment.
3.3. DEATH AFTER RETIREMENT. The Bank agrees that if the Executive dies
after the Retirement Date but shall die before receiving the full amount of
monthly payments to which he is entitled under this Agreement, the Bank will
continue to make such monthly payments to the Executive's designated Beneficiary
for the remaining period. If a valid Beneficiary Designation is not in effect,
the payments shall be made to the Executive's surviving spouse or, if none, said
payments shall be made to the duly qualified personal representative, executor
or administrator of Executive's estate.
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ARTICLE 4.
4.1. DEATH PRIOR TO RETIREMENT. In the event the Executive should die
while employed by the Bank at any time after the date of this Agreement but
prior to his Retirement Date, the Bank shall pay a sum equal to the Net
Insurance Coverage for the appropriate Plan Year set forth in Schedule A
(Participant Balance Sheet and Policy Data) to the Executive's designated
Beneficiary in equal monthly installments for a period of one hundred eighty
(180) months. If a valid Beneficiary Designation is not in effect, the payments
shall be made to the Executive's surviving spouse or, if none, said payments
shall be made to the duly qualified personal representative, executor or
administrator of Executive's estate. The said monthly payments shall begin the
first day of the month following the month of the death of the Executive.
Provided, however, that anything hereinabove to the contrary notwithstanding, no
death benefit shall be payable hereunder if it is determined that the
Executive's death was caused by suicide.
4.2. DISABILITY PRIOR TO RETIREMENT. In the event the Executive should
become disabled while actively employed by the Bank at any time after the date
of this Agreement but prior to his Retirement Date, the Executive shall be
considered to be one hundred percent (100%) vested in the amount set forth in
Schedule A attached hereto and made a part hereof, under Accrued Salary
Continuation Liability for the appropriate Plan Year. Said amount shall be paid
to the Executive in a lump sum within three (3) months of the determination of
disability. Said payment shall be
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in lieu of any other retirement or death benefit under this Agreement.
ARTICLE 5.
5.1 TERMINATION OF EMPLOYMENT. The Bank reserves the right to terminate
the employment of the Executive at any time prior to retirement. In the event
that the employment of the Executive shall terminate prior to the Executive's
Retirement Date, other than by reasons of Executive's disability or death, then
this Agreement shall terminate upon the date of such termination of employment.
Provided, however, that the Executive shall be entitled to the benefits
described below under the following circumstances:
a. If the Executive has been employed by the Bank for a period of at
least four (4) continuous years from and after the date this Agreement was
entered into, the Executive will be considered to be vested in thirty
percent (30%) of the amount set out in Schedule A attached hereto and made
a part hereof under Accrued Salary Continuation Liability for the
appropriate Plan Year and shall become vested in an additional ten percent
(10%) of said amount for each succeeding year thereafter until Executive
becomes one hundred percent (100) vested. If the Executive has been
employed by the Bank for a period of less than four (4) continuous years
from and after the date of this Agreement, the Executive shall not be
considered to be vested in any benefit hereunder and shall be
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entitled to no benefits under this Agreement. If the Executive's
employment is terminated under the provisions of this Section 5.1., the
Bank will pay the Executive's vested amount upon such terms and conditions
and upon Executive's attainment of age sixty-five (65).
b. Anything hereinabove to the contrary notwithstanding, if the
Executive is not fully vested in the amount set forth in Schedule A under
Accrued Salary Continuation Liability, he will become fully vested in said
amount in the event of a Change of Control-of the Bank and Executive shall
be entitled to the full amount set forth in Schedule A, for the appropriate
Plan Year, upon the terms and conditions hereof, if termination of
employment thereafter occurs under this Section 5.1.
ARTICLE 6.
6.1. TERMINATION OF AGREEMENT BY REASON OF CHANGE IN LAW. The Bank is
entering into this Agreement upon the assumption that certain existing tax laws
will continue in effect in substantially their current form. In the event of
any changes in such federal laws which materially affect this Agreement, the
Bank shall have an option to terminate or modify this Agreement. Provided,
however, that the Executive shall be entitled to at least the same amount as he
would have been entitled to under Section 4.2. relating to disability. The
payment of said amount shall be made upon such terms and conditions and at such
time as the Corporation shall
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determine, but in no event commencing later than the Executive's Retirement
Date.
ARTICLE 7.
7.1. NONASSIGNABLE. Neither the Executive, his spouse, nor any other
beneficiary under this Agreement shall have any power or right to transfer,
assign, anticipate, hypothecate, mortgage, commute, modify, or otherwise
encumber in advance any of the benefits payable hereunder, nor shall any of said
benefits be subject to seizure for the payment of any debts, judgments, alimony
or separate maintenance, owed by the Executive or his beneficiary or any of
them, or be transferable by operation of law in the event of bankruptcy,
insolvency or otherwise.
ARTICLE 8.
8.1. CLAIMS PROCEDURE. The Bank shall make all determinations as to rights
to benefits under this Agreement. Any decision by the Bank denying a claim by
the Executive or his beneficiary for benefits under this Agreement shall be
stated in writing and delivered or mailed to the Executive or such beneficiary.
Such decision shall set forth the specific reasons for the denial, written to
the best of the Bank's ability in a manner calculated to be understood without
legal or actuarial counsel. In addition, the Bank shall provide a reasonable
opportunity to the Executive or such beneficiary for full and fair review of the
decision denying such claim.
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ARTICLE 9.
9.l. UNSECURED GENERAL CREDITOR. The Executive's rights are limited to
the right to receive payments as provided in this Agreement and the Executive's
position with respect thereto is that of a general unsecured creditor of the
Bank.
ARTICLE 10.
10.l. REORGANIZATION. The Bank shall not voluntarily engage in a Change of
Control of the Bank unless and until such succeeding or continuing corporation,
firm or person agrees to assume and discharge the obligations of the Bank under
this Agreement. Upon the occurrence of such event, the term "Bank" as used in
this Agreement shall be deemed to refer to such successor or survivor
corporation, firm or person.
ARTICLE l1.
11.1. NOT A CONTRACT OF EMPLOYMENT. This Agreement shall not be deemed to
constitute a contract of employment between the parties hereto, nor shall any
provision hereof restrict the right of the Bank to discharge the Executive, or
restrict the right of the Executive to terminate his employment.
ARTICLE 12.
12.1. LIQUIDATED DAMAGES. The parties hereto, before entering into this
Agreement, have been concerned with the fact that substantial damages will be
suffered by Executive in the event
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that the Bank shall fail to perform according to this Agreement. In the event of
nonperformance by the Bank, Executive shall be entitled to liquidated damages of
$5,000.00 for each payment due hereunder which is not made by the Bank within
thirty (30) days of the date such payment was scheduled to have been made. This
provision shall not be applicable in the event that such nonpayment is the
result of prohibition of such payment by law, regulation or order of a banking
regulatory agency.
ARTICLE 13.
13.1. SUCCESSORS AND ASSIGNS; ASSIGNMENT. The rights and obligations of
this Agreement shall be binding upon and inure to the benefit of the successors,
assigns, heirs and personal representatives of the parties hereto. Executive
may not assign this Agreement or any of Executive's rights hereunder except with
the prior written consent of the Bank.
13.2. SEVERABILITY. If any provision of this Agreement, as applied to
either party or to any circumstances, is judged by a court to be void or
unenforceable, in whole or in part, the same shall in no way affect any other
provision of this Agreement, the application of such provision in any other
circumstances, or the validity or enforceability of this Agreement.
13.3. APPLICABLE LAW; JURISDICTION AND VENUE. This Agreement and all
matters or issues collateral hereto shall be governed by the laws of the State
of California applicable to contracts performed entirely therein. Executive and
Bank each consent to the
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jurisdiction of, and any action concerning this Agreement shall be brought and
tried in, the United States District Court for the Eastern District of
California or the Superior or Municipal Court for the County of Xxxxxx.
13.4. WAIVER. A waiver by either party of any of the terms or conditions
of this Agreement in any one instance shall not be deemed or construed to be a
waiver of such terms or conditions for the future, or of any subsequent breach
thereof. All remedies, rights, undertakings, obligations, and agreements
contained in this Agreement shall be cumulative, and none of them shall be in
limitation of any other remedy, right, undertaking, obligation or agreement of
either party.
13.5. ATTORNEYS' FEES. If any legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach,
default, or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party or parties shall be entitled to
recover reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be entitled.
13.6. HEADINGS. The headings in this Agreement are for convenience only
and shall not in any manner affect the interpretation or construction of the
Agreement or any of its provisions.
13.7 NOTICE. Any notice or other communication to be given under this
Agreement shall be in writing and shall be deemed to
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have been duly given on the date of service if personally served, or if mailed,
upon deposit in the United States mail, first class postage prepaid, express or
certified, return receipt requested, and properly addressed to the parties as
follows: if to Executive at his last address shown in the Bank's records; if to
Bank
Feather River State Bank
X.X. Xxx 0000
Xxxx Xxxx, XX 00000
Attention: President
Either party may designate a new address for purpose of this Section 13.7. by
giving the other notice of the new address as provided herein.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be duly executed
by its proper officer and the Executive has hereunto set his hand at Yuba City,
California, the day and year first above written.
FEATHER RIVER STATE BANK
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
XXXXXXX X. XXXXXXX
Its: Chairman
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EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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