Exhibit 10(kk)
NORTH VALLEY BANK
DIRECTOR DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this ________ day of __________________, 2000, by
and between NORTH VALLEY BANK, a state-chartered commercial bank, located in
Redding, California (the "Company"), and _________________(the "Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's Board of
Directors, the Company is willing to provide to the Director a deferred fee
opportunity. The Company will pay the Director's benefits from the Company's
general assets.
AGREEMENT
The Director and the Company agree as follows:
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases shall have
the meanings specified:
1.1 "Anniversary Date" means December 31 of each year.
1.2 "Change of Control" A "change in control" of Employer for purposes of
this Agreement shall mean the occurrence of any of the following events with
respect to Employer (with the term "Employer" being defined for such a change in
control to be North Valley Bancorp): (i) a change in control of a nature that
would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or in response to any other form or report to the
regulatory agencies or governmental authorities having jurisdiction over
Employer or any stock exchange on which Employer's shares are listed which
requires the reporting of a change in control; (ii) any merger, consolidation or
reorganization of Employer in which Employer does not survive; (iii) any sale,
lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) of any assets of Employer having an
aggregate fair market value of fifty percent (50%) of the total value of the
assets of Employer, reflected in the most recent balance sheet of Employer; (iv)
a transaction whereby any "person" (as such term is used in the Exchange Act or
any individual, corporation, partnership, trust or any other entity) is or
becomes the beneficial owner, directly or indirectly, of securities of Employer
representing 50% or more of the combined voting power of Employer's then
outstanding securities; (v) if in any one year period, individuals who at the
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beginning of such period constitute the Board of Directors of Employer cease for
any reason to constitute at least a majority thereof, unless the election, or
the nomination for election by Employer's shareholders, of each new director is
approved by a vote of a least three-quarters of the directors then still in
office who were directors at the beginning of the period; (iv) a majority of the
members of the Board of Directors of Employer in office prior to the happening
of any event determines in its sole discretion that as a result of such event
there has been a change in control. Notwithstanding the foregoing or anything
else contained herein to the contrary, there shall not be a "change in control"
for purposes of this Agreement if the event which would otherwise come within
the meaning of the term "change in control" involves an Employee Stock Ownership
Plan or similar plan sponsored by Employer which is the party that acquires
"control" or is the principal participant in the transaction constituting a
"change in control," as described above
1.3 "Code" means the Internal Revenue Code of 1986, as amended.
1.4 "Deferral Account" means the Company's accounting of the Director's
accumulated Deferrals plus accrued interest.
1.5 "Deferrals" means the amount of the Director's Fees which the Director
elects to defer according to this Agreement.
1.6 "Disability" means, if the Director is covered by a Company sponsored
disability policy, total disability as defined in such policy without regard to
any waiting period. If the Director is not covered by such a policy, Disability
means the Director suffering a sickness, accident or injury which, in the
judgment of a physician satisfactory to the Company, prevents the Director from
performing substantially all of the Director's normal duties for the Company. As
a condition to any benefits, the Company may require the Director to submit to
such physical or mental evaluations and tests as the Company's Board of
Directors deems appropriate.
1.7 "Effective Date" means __________________________.
1.8 "Deferral Election Form" means the Form attached as Exhibit 1.
1.9 "Benefit Election Form" means the Form of Benefit Form attached as
Exhibit 2.
1.10 "Fees" means the total fees payable to the Director during a Plan
Year.
1.11 "Normal Retirement Age" means the Director's 73rd birthday.
1.12 "Normal Retirement Date" means the later of the Normal Retirement Age
or Termination of Service.
1.13 "Plan Year" means the calendar year.
1.14 "Termination of Service" means that the Director ceases to be a member
of the
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Company's Board of Directors for any reason whatsoever other than by reason of a
leave of absence which is approved by the Company. For purposes of this
Agreement, if there is a dispute over the Director's status or the date of the
Director's Termination of Service, the Company shall have the sole and absolute
right to decide the dispute.
Article 2
Deferral Election
2.1 Initial Election. The Director shall make an initial deferral election
under this Agreement by filing with the Company a signed Election Form within 30
days after the Effective Date of this Agreement. The Election Form shall set
forth the amount of Fees to be deferred and shall be effective to defer only
Fees earned after the date the Election Form is received by the Company.
2.2 Election Changes
2.2.1 Generally. Upon Company approval, the Director may modify the
amount of Fees to be deferred annually by filing a new Election Form with
the Company prior to the beginning of the Plan Year in which the Fees are
to be deferred. The modified deferral election shall not be effective until
the calendar year following the year in which the subsequent Election Form
is received and approved by the Company.
2.2.2 Hardship. If an unforeseeable financial emergency arising from
the death of a family member, divorce, sickness, injury, catastrophe or
similar event outside the control of the Director occurs, the Director, by
written instructions to the Company, may reduce future deferrals under this
Agreement.
Article 3
Deferral Account
3.1 Establishing and Crediting. The Company shall establish a Deferral
Account on its books for the Director and shall credit to the Deferral Account
the following amounts:
3.1.1 Deferrals. The Fees deferred by the Director as of the time the
Fees would have otherwise been paid to the Director.
3.1.2 Interest. On each Anniversary Date of this Agreement prior to
any payment of pre-retirement or post-retirement benefits, and during the
payment of any pre-retirement benefits or post-retirement benefits,
interest is to be accrued on the account balance and compounded at an
annual rate equal to the Wall Street Journal Prime Rate plus one and one
half percent on the first business day of the Plan Year, compounded
monthly.
3.2 Statement of Accounts. The Company shall provide to the Director,
within 120 days after each Anniversary Date, a statement setting forth the
Deferral Account balance.
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3.3 Accounting Device Only. The Deferral Account is solely a device for
measuring amounts to be paid under this Agreement. The Deferral Account is not a
trust fund of any kind. The Director is a general unsecured creditor of the
Company for the payment of benefits. The benefits represent the mere Company
promise to pay such benefits. The Director's rights are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by the Director's creditors.
Article 4
Lifetime Benefits
4.1 Normal Retirement Benefit. Upon the Normal Retirement Date, the Company
shall pay to the Director the benefit described in this Section 4.1 in lieu of
any other benefit under this Agreement.
4.1.1 Amount of Benefit. The benefit under this Section 4.1 is the
Deferral Account balance at the Director's Normal Retirement Date.
4.1.2 Payment of Benefit. The Company shall pay the annual benefit to
the Director in 12 equal monthly installments payable on the first day of
each month commencing with the month following the Director's Normal
Retirement Date. The annual benefit shall be paid to the Director for 20
years, or as elected on the Election Form (Exhibit 2). The Company shall
credit interest pursuant to Section 3.1.2 on the remaining account balance
during any applicable installment period.
4.2 Early Retirement Benefit. Upon Termination of Service prior to the
Normal Retirement Age for reasons other than death, Change of Control or
Disability, the Company shall pay to the Director the benefit described in this
Section 4.2 in lieu of any other benefit under this Agreement.
4.2.1 Amount of Benefit. The benefit under this Section 4.2 is the
Deferral Account balance at the Director's Termination of Service.
4.2.2 Payment of Benefit. The Company shall pay the annual benefit to
the Director in 12 equal monthly installments payable on the first day of
each month commencing with the month following the Director's Termination
of Service. The annual benefit shall be paid to the Director for 20 years,
or as elected on the Election Form (Exhibit 2). The Company shall credit
interest pursuant to Section 3.1.2 on the remaining account balance during
any applicable installment period.
4.3 Disability Benefit. If the Director terminates service as a Director
due to Disability prior to Normal Retirement Age, the Company shall pay to the
Director the benefit described in this Section 4.3 in lieu of any other benefit
under this Agreement.
4.3.1 Amount of Benefit. The benefit under this Section 4.3 is the
Deferral Account
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balance at the Director's Termination of Service.
4.3.2 Payment of Benefit. The Company shall pay the annual benefit to
the Director in 12 equal monthly installments payable on the first day of
each month commencing with the month following the Director's Termination
of Service. The annual benefit shall be paid to the Director for 20 years.
The Company shall credit interest pursuant to Section 3.1.2 on the
remaining account balance during any applicable installment period.
4.4 Change of Control Benefit. Upon a Change of Control, the Company shall
pay to the Director the benefit described in this Section 4.4 in lieu of any
other benefit under this Agreement.
4.4.1 Amount of Benefit. The benefit under this Section 4.4 shall be
the Deferral Account balance on the Director's Termination of Service.
4.4.2 Payment of Benefit. The Company shall pay the benefit to the
Director in a lump sum payable within 60 days of the Director's Termination
of Service.
4.5 Hardship Distribution. Upon the Board of Director's determination
(following petition by the Director) that the Director has suffered an
unforeseeable financial emergency as described in Section 2.2.2, the Company
shall distribute to the Director all or a portion of the Deferral Account
balance as determined by the Company, but in no event shall the distribution be
greater than is necessary to relieve the financial hardship.
Article 5
Death Benefits
5.1 Death During Active Service. If the Director dies while in the active
service of the Company, the Company shall pay to the Director's beneficiary the
benefit described in this Section 5.1 in lieu of any other benefit under this
Agreement.
5.1.1 Amount of Benefit. The benefit under Section 5.1 is the Deferral
Account Balance at the time of the Director's death.
5.1.2 Payment of Benefit. The Company shall pay the annual benefit to
the Director's beneficiary in 12 equal monthly installments payable on the
first day of each month commencing with the month following the Director's
Death. The annual benefit shall be paid to the Director's beneficiary for
20 years. The Company shall credit interest pursuant to Section 3.1.2 on
the remaining account balance during any applicable installment period.
5.2 Death During Benefit Period. If the Director dies after benefit
payments have commenced under this Agreement but before receiving all such
payments, the Company shall pay the remaining benefits to the Director's
beneficiary at the same time and in the same amounts they would have been paid
to the Director had the Director survived.
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5.3 Death After Termination of Service But Before Benefit Payments
Commence. If the Director is entitled to benefit payments under this Agreement,
but dies prior to the commencement of said benefit payments, the Company shall
pay the benefit payments to the Director's beneficiary that the Director was
entitled to prior to death except that the benefit payments shall commence on
the first day of the month following the date of the Director's death.
Article 6
Beneficiaries
6.1 Beneficiary Designations. The Director shall designate a beneficiary by
filing a written designation with the Company. 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 Company
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 estate.
6.2 Facility of Payment. If a benefit is payable to a minor, to a person
declared incompetent, or to a person incapable of handling the disposition of
his or her property, the Company may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incompetent
person or incapable person. The Company may require proof of incompetence,
minority or guardianship as it may deem appropriate prior to distribution of the
benefit. Such distribution shall completely discharge the Company from all
liability with respect to such benefit.
Article 7
General Limitations
7.1 Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, the Company shall not pay any benefit under this Agreement that
is in excess of the Director's Deferrals if the Company terminates the
Director's service for:
(a) Gross negligence or gross neglect of duties to the Company;
(b) Commission of a felony or of a gross misdemeanor involving moral
turpitude in connection with the Director's service to the Company; or
(c) Fraud, disloyalty, dishonesty or willful violation of any law or
significant Company policy committed in connection with the Director's
service and resulting in an adverse effect on the Company.
7.2 Suicide or Misstatement. The Company shall not pay any death benefit
under this Agreement exceeding the Deferral Account if the Director commits
suicide within two years after the date of this Agreement, or if the Director
has made any material misstatement of fact on any application for life insurance
purchased by the Company.
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7.3 Excess Parachute Payment. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement to the extent the benefit would create an excise tax under the excess
parachute rules of Section 280G of the Code.
Article 8
Claims and Review Procedures
8.1 Claims Procedure. The Company shall notify any person or entity that
makes a claim against the Agreement (the "Claimant") in writing, within 90 days
of Claimant's written application for benefits, of his or her eligibility or
non-eligibility for benefits under the Agreement. If the Company determines that
the Claimant is not eligible for benefits or full benefits, the notice shall set
forth (1) the specific reasons for such denial, (2) a specific reference to the
provisions of the Agreement on which the denial is based, (3) a description of
any additional information or material necessary for the Claimant to perfect his
or her claim, and a description of why it is needed, and (4) an explanation of
the Agreement's claims review procedure and other appropriate information as to
the steps to be taken if the Claimant wishes to have the claim reviewed. If the
Company determines that there are special circumstances requiring additional
time to make a decision, the Company shall notify the Claimant of the special
circumstances and the date by which a decision is expected to be made, and may
extend the time for up to an additional 90 days.
8.2 Review Procedure. If the Claimant is determined by the Company not to
be eligible for benefits, or if the Claimant believes that he or she is entitled
to greater or different benefits, the Claimant shall have the opportunity to
have such claim reviewed by the Company by filing a petition for review with the
Company within 60 days after receipt of the notice issued by the Company. Said
petition shall state the specific reasons which the Claimant believes entitle
him or her to benefits or to greater or different benefits. Within 60 days after
receipt by the Company of the petition, the Company shall afford the Claimant
(and counsel, if any) an opportunity to present his or her position to the
Company verbally or in writing, and the Claimant (or counsel) shall have the
right to review the pertinent documents. The Company shall notify the Claimant
of its decision in writing within the 60-day period, stating specifically the
basis of its decision, written in a manner calculated to be understood by the
Claimant and the specific provisions of the Agreement on which the decision is
based. If, because of the need for a hearing, the 60-day period is not
sufficient, the decision may be deferred for up to another 60 days at the
election of the Company, but notice of this deferral shall be given to the
Claimant.
Article 9
Amendments and Termination
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Director.
Article 10
Miscellaneous
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10.1 Binding Effect. This Agreement shall bind the Director and the
Company, and their beneficiaries, survivors, executors, administrators and
transferees.
10.2 No Guarantee of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain in the service of
the Company, nor does it interfere with the shareholders' rights to replace the
Director. It also does not require the Director to remain in the service of the
Company nor interfere with the Director's right to terminate services at any
time.
10.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
10.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of California, except to the extent preempted
by the laws of the United States of America.
10.6 Unfunded Arrangement. The Director and the Director's beneficiary are
general unsecured creditors of the Company for the payment of benefits under
this Agreement. The benefits represent the mere promise by the Company to pay
such benefits. The rights to benefits are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors. Any insurance on the Director's life is
a general asset of the Company to which the Director and the Director's
beneficiary have no preferred or secured claim.
10.7 Small Account Balance. If the Director's Account Balance is $25,000 or
less, the Company in its sole and absolute discretion shall have the right to
pay out the Director's remaining Account Balance in a lump sum.
10.8 Reorganization. The Company shall not merge or consolidate into or
with another company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm, or person agrees to assume and discharge the obligations of the Company
under this Agreement.
10.9 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Director as to the subject matter hereof. No rights
are granted to the Director by virtue of this Agreement other than those
specifically set forth herein.
10.10 Administration. The Company shall have powers which are necessary to
administer this Agreement, including but not limited to:
(a) Interpreting the provisions of the Agreement;
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(b) Establishing and revising the method of accounting for the
Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
10.11 Named Fiduciary. The Company shall be the named fiduciary and plan
administrator under the Agreement. The named fiduciary may delegate to others
certain aspects of the management and operation responsibilities of the plan
including the employment of advisors and the delegation of ministerial duties to
qualified individuals.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer
have signed this Agreement.
DIRECTOR: COMPANY:
NORTH VALLEY BANK
____________________________________ By ________________________________
Title ______________________________
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EXHIBIT 1
TO
NORTH VALLEY BANK
DIRECTOR DEFERRED FEE AGREEMENT
DEFERRAL ELECTION FORM FOR
------------------
I elect to defer my Fees received under this Agreement with the Company, as
follows:
----------------------------------------------- -------------------------------
Amount of Deferral Duration
=============================================== ===============================
[Initial and Complete one] [Initial One]
____ I elect to defer ____% of my Fees. ____ One Year only
(____) I elect to defer $__________ ____ For ______ [Insert
of my Fees. Number] Years
____ I elect not to defer any of my Fees. (____) Until Termination
of Service
____ Until ___________,
___________ (date)
----------------------------------------------- -------------------------------
Upon the Company's approval, I understand that I may change the amount and
duration of my deferrals by filing a new election form with the Company;
provided, however, that any subsequent election will not be effective until the
calendar year following the year in which the new election is accepted by the
Company.
Signature ________________________________
Date _____________________________________
Accepted by the Company this ________ day of ___________________, 2000.
By _____________________________________
Title __________________________________
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EXHIBIT 2
TO
NORTH VALLEY BANK
DIRECTOR DEFERRED FEE AGREEMENT
FORM OF BENEFIT FORM
The Executive understands that he or she may not change the Form of Benefit
elected, however, the Company will allow the Executive to file a petition with
the Company requesting an alternate payment plan and the Board of Directors, in
its sole and absolute discretion, may accept or reject such a request.
I elect to receive benefits under the Agreement in the following form:
4.1.2 Payment of Normal Retirement Benefit.
[Initial One]
____ Lump sum
____ Equal monthly installments for 20 years.
4.2.2 Payment of Early Retirement Benefit
[Initial One]
____ Lump sum
____ Equal monthly installments for 20 years.
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Beneficiary Designation
NORTH VALLEY BANK
DIRECTOR DEFERRED FEE AGREEMENT
I designate the following as beneficiary of benefits under this Agreement
payable following my death:
Primary: ______________________________________________________________________
________________________________________________________________________________
Contingent: ___________________________________________________________________
________________________________________________________________________________
Note: To name a trust as beneficiary, please provide the name of the trustee(s)
and the exact name and date of the trust agreement.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature _______________________________
Date ____________________________________
Accepted by the Company this ________ day of ___________________, 2000.
By ______________________________________
Title ___________________________________
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