Exhibit 10.22
EXECUTIVE SALARY CONTINUATION AGREEMENT
THIS EXECUTIVE SALARY CONTINUATION AGREEMENT ("Agreement") is made and entered
into this 28th day of August, 1996, by and between REDWOOD EMPIRE BANCORP, a
California corporation (the "Corporation"), and XXXXX XXXXXXXX (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Corporation as its Chief
Financial Officer; and
WHEREAS, the experience of the Executive, his knowledge of the affairs
of the Corporation, 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 Corporation and it is in the best interests of
the Corporation and its shareholders to arrange terms of his continued
employment; and
WHEREAS, it is the desire of the Corporation that the Executive's
services be retained as herein provided; and
WHEREAS, the Executive is willing to continue in the employ of the
Corporation provided the Corporation agrees to pay the Executive or his
beneficiaries certain benefits in accordance with the terms and conditions
hereinafter set forth;
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 1.
1.1. NAMED FIDUCIARY AND PLAN ADMINISTRATOR. The Corporation
Fiduciary and Plan Administrator of this Plan shall be the Corporation.
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1.2. 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 twenty-five percent (25%) or more of the outstanding voting
securities of the Corporation; (ii) the Corporation shall be merged or
consolidated with another bank or corporation and as a result of such merger or
consolidation less than seventy-five percent (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 Corporation, 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 Corporation 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 acquire twenty-five percent (25%) or more of the
outstanding voting securities of the Corporation (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 Corporation agrees to employ the Executive in
such capacity as the Corporation may determine from time to time. The Executive
shall continue in the employ of the Corporation 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 Corporation.
2.2. FULL EFFORTS. Executive shall devote his full business time and
efforts to the business and affairs of the Corporation or the successor to the
Corporation by which Executive is then employed pursuant to this Agreement;
provided,
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however, this provision shall not preclude Executive, with prior approval of the
Corporation, from serving as a director or member of a committee of any other
organization involving no conflict of interests with the interests of the
Corporation, 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
Corporation.
2.3. FRINGE BENEFITS. The salary continuation benefits provided by
this Agreement are granted by the Corporation 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. VOLUNTARY TERMINATION. In the event of a Change of Control,
Executive shall have ninety (90) days from the date of Executive's receipt of
written notice from the Corporation notifying Executive of the occurrence of the
Change of Control ("Election Period") within which to elect to terminate
employment. If Executive elects to terminate employment within the Election
Period, this Agreement and his employment shall terminate on the date that
Executive gives notice of the election to terminate and the Corporation shall
pay him the payment provided for in Section 3.2 hereof ("Separation Payment").
3.2. SEPARATION PAYMENT. The Separation Payment shall be equal to one
(1) times the Executive's annual base salary then in effect at the time of the
Change of Control, payable to Executive, no later than one (1) business day
after termination of employment. Executive shall not be entitled to any payment
under Article 4 if he elects to receive the Separation Payment.
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ARTICLE 4.
4.1. PAYMENT RESULTING FROM A CHANGE OF CONTROL. If, within two (2)
years of a Change of Control, (i) the Executive's employment with the
Corporation is terminated; (ii) Executive's annual compensation and/or the
Executive's fringe benefits are reduced by ten percent (10%) or more from the
levels in effect on the date of the Change of Control; or (iii) Executive's
duties, responsibilities and authority are materially modified from those of his
current position or those of the position that he held on the date of the Change
of Control; then the Executive shall receive one (1) times the Executive's
current annual base salary or the annual base salary in effect on the date of
the Change of Control, whichever is greater, ("Control Payment") payable in one
(1) lump sum within sixty (60) days after the occurrence of the event triggering
the payment herein. Executive shall be entitled to receive only one (1) Control
Payment under the terms of this Article 4 and hereby waives all other claims
arising out of the events triggering the payment of the Control Payment. For
purposes of this Agreement, a material modification to Executive's duties,
responsibilities, and authority shall mean a change in reporting relationship of
two (2) or more levels in the line of the organization.
ARTICLE 5.
5.1. TERMINATION OF AGREEMENT BY REASON OF CHANGE IN LAW. The
Corporation is entering into this Agreement upon the assumption that certain
existing tax laws will be continued in effect in substantially their current
form. In the event of any changes in such federal laws which materially affect
this Agreement, the Corporation shall have the option to terminate or modify
this Agreement, however, in the event that the new or modified agreement is not
at least as beneficial to Executive as this Agreement, then Executive shall then
be paid the Accrued Salary Continuation Liability for the appropriate Plan Year.
The payment of said amount shall be made upon such terms and conditions and at
such time as the Corporation shall determine, but in no event commencing later
than the Executive's Retirement Date.
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ARTICLE 6.
6.1. NON-ASSIGNABLE. Neither the Executive, his spouse, nor any
other party 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 7.
7.1. CLAIMS PROCEDURE. The Corporation shall make all determinations
as to rights to benefits under this Agreement. Any decision by the Corporation
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.
Such decision shall set forth the specific reasons for the denial, written to
the best of the Corporation's ability in a manner calculated to be understood
without legal or actuarial counsel. In addition, the Corporation shall provide a
reasonable opportunity to the Executive for full and fair review of the decision
denying such claim.
ARTICLE 8.
8.1. 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 Corporation.
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ARTICLE 9.
9.1. REORGANIZATION. The Corporation shall not voluntarily engage
in a Change of Control of the Corporation unless and until such succeeding or
continuing corporation, firm or person agrees to assume and discharge the
obligations of the Corporation under this Agreement. Upon the occurrence of such
event, the term "Corporation" as used in this Agreement shall be deemed to refer
to such successor or survivor corporation, firm or person.
ARTICLE 10.
10.1. 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 Corporation to discharge
the Executive, or restrict the right of the Executive to terminate his
employment.
ARTICLE 11.
11.1. 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 that the Corporation shall fail to perform
according to this Agreement. In the event of non-performance by the Corporation,
Executive shall be entitled to liquidated damages of Two Thousand Five Hundred
Dollars ($2,500.00) for each payment due hereunder which is not made by the
Corporation within forty-five (45) days of the date such payment was scheduled
to have been made. This provision shall not be applicable in the event that such
non-payment is the result of a prohibition of such payment by law, regulation or
order of a bank regulatory agency.
ARTICLE 12.
12.1. 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
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assign this Agreement or any of Executive's rights hereunder except with the
prior written consent of the Corporation.
12.2. 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.
12.3. 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 Corporation each consent to the jurisdiction of, and any action
concerning this Agreement shall be brought and tried in, the United States
District Court for the Northern District of California or the Superior or
Municipal Court for the County of Sonoma.
12.4. 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.
12.5. 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.
12.6. HEADINGS. The headings in this Agreement are for convenience
only and shall not in any manner affect the interpretation or construction of
the
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Agreement or any of its provisions.
12.7. NOTICE. Any notice or other communication to be given under
this Agreement shall be in writing and shall be deemed to 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 Corporation's records; if to
Corporation at:
Redwood Empire Bancorp
000 Xxxxx Xxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attn: Corporate Secretary
Either party may designate a new address for purposes of this Section 12.7 by
giving the other notice of the new address as provided herein.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
duly executed by its proper officer and the Executive has hereunto set his hand
at Santa Rosa, California, on the day and year first above written.
CORPORATION
REDWOOD EMPIRE BANCORP,
A California Corporation
By: Xxxxxxx X. Xxxxxxxx
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Its: Chief Executive Officer
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EXECUTIVE
/s/ Xxxxx X. Xxxxxxxx
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XXXXX XXXXXXXX
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