Exhibit 10
EXECUTIVE SALARY CONTINUATION AGREEMENT
THIS EXECUTIVE SALARY CONTINUATION AGREEMENT ("Agreement") is made and
entered into this 1st day of November, 1993, by and between REDWOOD EMPIRE
BANCORP, a California corporation, NATIONAL BANK OF THE REDWOODS, a national
banking association (collectively the "Corporation"), and XXXXXXX X. XXXXXXXX
(the "Executive").
W I T N E S S E T H
WHEREAS, the Executive is employed by the Corporation as its President and
Chief Executive 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 for the Executive so as to reasonably assure his remaining in the
Corporation's employment during his lifetime or until the age of retirement; 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. 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 same as the
term "Total Disability" as defined in that certain Disability Income Policy
issued by Royal Maccabees Life Insurance Company, Policy Number ___________,
wherein the Executive is the insured; provided that in the event another policy
or policies are from time to time obtained or substituted, the definition of
"Disability" shall mean the same as "Total Disability" in the then current
policy.
1.3. Named Fiduciary and Plan Administrator. The Corporation
Fiduciary and Plan Administrator of this Plan shall be Corporation.
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 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 (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.
1.5. Cause. The term "Cause" shall mean any act of embezzlement,
fraud, breach of fiduciary duty, dishonesty, deliberate or repeated disregard of
the policies and rules of the Corporation as adopted by the Board of Directors
of the Corporation, unauthorized x use or disclosure of any fo the trade secrets
or confidential information of the Corporation, competition with the
Corporation, inducement of any customer of the Corporation to breach a contract
with the Corporation, inducement of any principal for whom the Corporation acts
as agent to termination such agency relationship gross negligence adversely
impacting the Corporation, willful breach of this Agreement, or any other
willful misconduct.
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. Notwithstanding anything herein to the contrary, except a
Change of Control, Corporation may transfer an Executive to one of its
subsidiaries from another subsidiary from time to time, provided, however, that
Executive's compensation, position or responsibilities shall not be diminished.
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, 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 persona] 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. Retirement. If the Executive shall continue in the employment
of the Corporation until he attains the age of sixty-five (65), he may retire
from active daily employment as of the first day of 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 Corporation ("Retirement Date").
3.2. Payment. The Corporation agrees that upon such Retirement Date
it will pay the Executive the annual benefit of Sixty-six Thousand One Hundred
Seventy-five ($66,175) ("Annual Benefit"), adjusted upward initially at the rate
of four (4) percent per year from the date of this Agreement payable on a
monthly basis 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 faith in this Agreement. The rate of the annual adjustment of
the Annual Benefit shall be reviewed every two years on the anniversary date of
this Agreement (or as soon thereafter as practicable) and may be amended, but
not adjusted downward below four (4) percent. However, the Corporation is not
obligated hereunder to make any such adjustment.
3.3. Death After Retirement. The Corporation 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
Corporation 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 the Executive's estate.
3.4. Early Retirement. Executive shall be entitled to early
retirement when he attains age fifty-five (55) and has completed fifteen (15)
years of service. In the event that Executive chooses to retire early at age
fifty-five (55) but before his Retirement Date, he shall be vested in and shall
be entitled to receive the annual benefit set forth in Section 3.2 according to
the schedule set forth below.
Percentage of
Age at Early Retirement Vested Benefit
----------------------- --------------
55 years 25%
56 years and 3 months 30%
57 years and 6 months 35%
58 years and 9 months 40%
60 years 50%
61 years 60%
62 years 70%
63 years 80%
64 years 90%
ARTICLE 4.
4.1. Death Prior to Retirement. In the event the Executive should
die while employed by the Corporation at any time after the date of this
Agreement but prior to his Retirement Date, the Corporation shall pay a yearly
benefit of One Hundred Thirty-four Thousand and Fifty-eight dollars ($134,058),
payable on a monthly basis to the Executive's designated Beneficiary 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 the 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 addition to the benefits
pursuant to Section 3.2 hereof, in the event the Executive should become
Disabled while actively employed by the Corporation at any time after the date
of this Agreement but prior to his Retirement Date, the Executive shall receive
his current salary for an additional period of twelve (12) months. Said amounts
shall be paid to the Executive on a monthly basis beginning on the first day of
the month after the Executive has become Disabled.
ARTICLE 5.
5.1. Termination of Employment for Cause. The Corporation reserves
the right to terminate the employment of the Executive at any time prior to his
Retirement Date for Cause. In the event that the employment of the Executive
shall be terminated prior to the Executive's Retirement Date for cause, then
this Agreement shall terminate upon the date of such termination of employment
and Executive shall not be entitled to any payments pursuant to the terms of
this Agreement.
5.2. Termination of Employment Without Cause. The Corporation
reserves the right to terminate the employment of the Executive at anytime prior
to his Retirement date without Cause or Executive may choose to resign from his
employment with the Corporation. In the event that the employment of the
Executive shall be terminated without cause or if Executive shall resign before
Executive's Retirement date, then Executive shall be entitled to receive the
Accrued Salary Continuation Liability for the appropriate Plan Year, payable
within thirty (30) days of the last day of Executive's employment.
5.3. Termination of Employment As a Result of Change of Control.
Anything hereinabove to the contrary notwithstanding, if within two (2) years of
a Change of Control of the Corporation (i) the Executive's employment with the
Corporation is terminated; (ii) Executive's annual compensation and benefits are
reduced from their levels on the date of a Change of Control of the Corporation;
or (iii) Executive's duties, responsibilities and authority are reduced from
those of his current position or those of the position then held by the
Executive on the date of the change of Control of the Corporation; then he shall
be entitled to receive the greater of two (2)
times the Executive's current annual salary or the Accrued Salary Continuation
Liability for the appropriate Plan Year.
ARTICLE 6.
6.1. 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.
ARTICLE 7.
7.1. Non-Assignable. 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 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 or
such Beneficiary. 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 or such
Beneficiary for full and fair review of the decision denying such claim.
ARTICLE 9.
9.1. Unsecured General Creditor. The Executive's rights are limited
to the right to receive payment as provided in this Agreement and the
Executive's position with respect thereto is that of a general unsecured
creditor of the Corporation.
ARTICLE 10.
10.1. 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 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 Corporation 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 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 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 Corporation.
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 she 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.
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. Attorney's 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 communications 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 13.7. 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.
REDWOOD EMPIRE BANCORP, INC
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Its: Chairman of the Board
----------------------------------
NATIONAL BANK OF THE REDWOODS
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Its: Chairman of the Board
----------------------------------
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
XXXXXXX X. XXXXXXXX
FIRST AMENDMENT TO THE EXECUTIVE SALARY CONTINUATION AGREEMENT
THIS FIRST AMENDMENT TO THE EXECUTIVE SALARY CONTINUATION AGREEMENT
("Amendment") is made and entered into this 25th day of April, 1996, by and
between REDWOOD EMPIRE BANCORP, a California Corporation, and NATIONAL BANK OF
THE REDWOODS, a National Banking Association (collectively the "Corporation"),
and Xxxxxxx X. Xxxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Executive is employed by the Corporation as its Chief
Executive Officer; and
WHEREAS, the Executive and the Corporation are parties to an
agreement dated November 1, 1993, that is designated as the "Executive Salary
Continuation Agreement" (the "Agreement");
WHEREAS, it is the desire of the Corporation and the Executive that
the terms of the Agreement be modified as herein provided; and
WHEREAS, the Executive is willing to continue in the employ of the
Corporation provided the Corporation agrees to the modification to the Agreement
according to the terms and conditions of the Amendment as 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:
1. Section 5.3 of Article 5 is amended to read as follows:
"5.3. VOLUNTARY TERMINATION. Notwithstanding
anything herein to the contrary, 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/her employment
shall terminate on the date that Executive gives notice
of the election to terminate and the Corporation shall
pay him/her the payment provided for in this Section 5.3
("Separation Payment"). The Separation Payment shall be
equal to one (1) times 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 the termination of employment. Executive shall not
be entitled to any other payments under Article 5 if
he/she elects to receive the Separation Payment."
2. Article 5 of the Agreement is amended by the addition of
the following section:
"5.4. PAYMENT RESULTING FROM A CHANGE OF CONTROL. If,
within two (2) years of a Change of Control, (i)
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/her current position or those
of the position that he/she held on the date of the
Change of Control; then Executive shall receive one (1)
times 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 5
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."
3. The Agreement is hereby ratified and approved by
Executive and the Corporation as modified herein.
IN WITNESS WHEREOF, the Corporation has caused this Amendment to be
duly executed by its proper officer and 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: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Its: Chairman of the Board
----------------------------------------
NATIONAL BANK OF THE REDWOODS,
A National Banking Association
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Its: Chairman of the Board
----------------------------------------
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
SECOND AMENDMENT TO THE EXECUTIVE SALARY CONTINUATION AGREEMENT
THIS SECOND AMENDMENT TO THE EXECUTIVE SALARY CONTINUATION AGREEMENT
("Amendment") is made and entered into this 16th day of November, 1999, by and
between REDWOOD EMPIRE BANCORP, a California Corporation, and NATIONAL BANK OF
THE REDWOODS, a National Banking Association (collectively the "Corporation"),
and Xxxxxxx X. Xxxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Executive is employed by the Corporation as its Chief
Executive Officer; and
WHEREAS, the Executive and the Corporation are parties to an
agreement dated November 1, 1993, that is designated as the "Executive Salary
Continuation Agreement" (the "Agreement");
WHEREAS, it is the desire of the Corporation and the Executive that
the terms of the Agreement be modified as herein provided; and
WHEREAS, the Executive is willing to continue in the employ of the
Corporation provided the Corporation agrees to the modification to the Agreement
according to the terms and conditions of the Amendment as 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:
1. Section 5.3 of Article 5 is amended to read as follows:
"5.3. Voluntary Termination. Notwithstanding
anything herein to the contrary, 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/her employment
shall terminate on the date that Executive gives notice
of the election to terminate and the Corporation shall
pay him/her the payment provided for in this Section 5.3
("Separation Payment"). The Separation Payment shall be
equal to two (2) times 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 the termination of employment. Executive shall not
be entitled to any other payments under Article 5 if
he/she elects to receive the Separation Payment."
2. Article 5 of the Agreement is amended by the addition of
the following section:
"5.4. Payment Resulting From a Change of Control. If,
within two (2) years of a Change of Control, (i)
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/her current position or those
of the position that he/she held on the date of the
Change of Control; then Executive shall receive two (2)
times 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 5
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."
3. The Agreement is hereby ratified and approved by
Executive and the Corporation as modified herein.
IN WITNESS WHEREOF, the Corporation has caused this Amendment to be
duly executed by its proper officer and 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: /s/ Xxx X. Xxxxxxxx
-----------------------------------------
Its: Chairman of the Board
----------------------------------------
NATIONAL BANK OF THE REDWOODS,
A National Banking Association
By: /s/ Xxx X. Xxxxxxxx
-----------------------------------------
Its: Chairman of the Board
----------------------------------------
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
