Exhibit 10.19
EXECUTIVE SALARY CONTINUATION AGREEMENT
THIS EXECUTIVE SALARY CONTINUATION AGREEMENT ("Agreement") is made
and entered into this 27th day of OCTOBER, 1999 by and between FEATHER RIVER
STATE BANK, a California banking corporation ("Bank"), and XXXXX X. XXXXXXX
(the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Bank as its PRESIDENT; and
CEO;
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;
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. 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.
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 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 he may retire from active
daily employment as of the first day of the month next following attainment
of age SIXTY-FIVE 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 that upon such Retirement Date it will
pay to the Executive the annual sum of SEVENTY-FIVE THOUSAND Dollars
($75,000.00) 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 SEVENTY-FIVE
THOUSAND Dollars ($75,000.00 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 thereafter 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.
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 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 I 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. P rovided, however, that the Executive shall
be entitled to the benefits described below under the following circumstances:
a. SALARY CONTINUATION. The Company and Executive shall
enter into a Salary Continuation Agreement which shall provide that if
Executive continues to be employed by the Company at least until he reaches
age 65, upon retirement the Executive will receive an annual payment of
$75,000 per year for 15 years following such retirement. The Executive will
be vested for the accrual amount each year and will become vested in the
amount of each additional year's accrual until he becomes 100% vested. The
Executive shall be entitled to the entire amount vested upon the termination
of this Agreement. In the event of a Change of Control, Executive will become
fully vested and, if the Agreement is terminated within 12 months of Change
of Control the Executive will be entitled to the full amount of the Salary
Continuation Agreement.
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 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.
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.
10.1. 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 11.
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 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 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 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 000000
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 XXXXXXXXX
ITS: SENIOR VICE PRESIDENT
EXECUTIVE:
By: /s/
------------------------
XXXXX X. XXXXXXX
PRESIDENT/CEO
BENEFICIARY DESIGNATION NOTICE
To the Plan Administrator of the Feather River State Bank Executive
Salary Continuation Agreement:
Pursuant to the Provisions of my Executive Salary Continuation
Agreement with the Bank permitting the designation of a beneficiary or
beneficiaries by a participant, I hereby designate the following
persons and entities as primary and secondary beneficiaries of any
benefit under said Agreement payable by reason of my death:
Primary Beneficiary:
Name Address Relationship
Xxxx X. Xxxxxxx Wife
Secondary (Contingent) Beneficiary:
Name Address Relationship
Xxxxxxx Family Trust Family Trust
THE RIGHT TO REVOKE OR CHANGE ANY BENEFICIARY DESIGNATION IS HEREBY
RESERVED. ALL PRIOR DESIGNATIONS, IF ANY, OF BENEFICIARIES AND
SECONDARY BENEFICIARIES ARE HEREBY REVOKED.
The Plan Administrator shall pay all sums payable under the Agreement
by reason of my death to the Primary Beneficiary, if he or she survives
me, and if no Primary Beneficiary shall survive me, then to the
Secondary Beneficiary, and if no named beneficiary survives me, then
the Plan Administrator I shall pay all amounts in accordance with the
terms of the Executive Salary Continuation Agreement. In the event that
a named beneficiary survives me and dies prior to receiving the entire
benefit payable under said Agreement, then and in that event the
remaining unpaid benefit, payable according to the terms of the
Agreement, shall be payable to the personal representatives of the
estate of said deceased beneficiary, who survive me, but die prior to
receiving the total benefit.
---------------------------------
Date of Designation
SCHEDULE A (XXXXX XXXXXXX)
PARTICIPANT'S BALANCE SHEET AND POLICY DATA
---------------------------------------------------------------------------------------------------------------------
END OF PLAN YEAR ACCRUED SALARY CONTINUATION PERCENT VESTING NET INSURANCE
LIABILITY COVERAGE
---------------------------------------------------------------------------------------------------------------------
1 $84,705 100% IN THE ACCRUAL AMOUNT $1,824,841
2 $176,898 100% IN THE ACCRUAL AMOUNT $1,817,699
3 $277,240 100% IN THE ACCRUAL AMOUNT $1,809,591
4 $386,451 100% IN THE ACCRUAL AMOUNT $1,800,575
5 $505,315 100% IN THE ACCRUAL AMOUNT $1,790,928
6 $634,686 100% IN THE ACCRUAL AMOUNT $1,780,324
