Exhibit 99.1
AMERICAN RIVER BANKSHARES
AMENDED SALARY CONTINUATION AGREEMENT
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THIS AMENDED SALARY CONTINUATION AGREEMENT (this "Agreement") is made and
entered into this 21st day of February, 2008, by and between American River
Bankshares, a California corporation and bank holding company registered under
the Bank Holding Company Act of 1956, as amended, with its main office in
Sacramento, California ("ARB") and Xxxxx X. Xxxxx (the "Executive"). This
Agreement is a restatement of the Agreement entered into between ARB and the
Executive on August 22, 2003, restated on June 2, 2006 and modified on January
3, 2007 and is intended to be modified to comply with Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code") and Final Treasury
Regulations issued under Code section 409A Code 409A which became final on April
10, 2007.
WHEREAS, ARB is the parent bank holding company for American River Bank
which at the date of this Agreement include divisions of American River
Bank--Bank of Xxxxxx and North Coast Bank, (together, "Bank Subsidiary");
WHEREAS, the Executive has contributed substantially to the success of
ARB and its subsidiaries including the Bank Subsidiary, and ARB desires that the
Executive continue in its employ;
WHEREAS, to encourage the Executive to remain an employee of ARB, it is
willing to provide salary continuation benefits to the Executive, which ARB will
pay from its general assets;
WHEREAS, none of the conditions or events included in the definition of
the term "golden parachute payment" that is set forth in ss.18(k)(4)(A) of the
Federal Deposit Insurance Act [12 U.S.C. ss.1828(k)(4)(A)] exists or, to the
best knowledge of ARB, is contemplated by this Agreement insofar as ARB is
concerned;
WHEREAS, ARB and its Board of Directors have consulted with and have
been advised by representatives of Xxxxx-Xxxxxxxxx Corporation regarding
compliance with applicable requirements of banking regulatory agencies having
jurisdiction over ARB and its subsidiaries including the Bank Subsidiary
pertaining to this Agreement including ARB's acquisition, ownership, control and
title to and all rights and benefits under one or more policies of insurance
that ARB may elect to purchase in connection with this Agreement, including,
without limitation, Bulletin 2000-23 issued by the Office of the Comptroller of
the Currency and pronouncements by the Board of Governors of the Federal Reserve
System and the Federal Deposit Insurance Corporation related thereto;
WHEREAS, it is the intent of the parties hereto that this Agreement be
considered an unfunded arrangement maintained primarily to provide supplemental
retirement benefits for the Executive, and to be considered a nonqualified
benefit plan for purposes of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"); and
WHEREAS, the Executive is fully advised of ARB's financial status and
the fact that the Executive has no interest in or rights under any insurance
policies ARB may elect to purchase in connection with this Agreement.
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NOW, THEREFORE, in consideration of the foregoing promises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Executive and ARB hereby agree as follows:
Article 1
Definitions
The following words and phrases used in this Agreement have the
meanings specified:
1.1 "Change in Control" means the occurrence of a "Change in
Control Event" described in Section 1.1.1 with respect to a corporation that is
a "Service Recipient" as defined in Section 1.1.4. The term "Change in Control"
as defined in this Section 1.1 is intended to comply with all relevant
provisions of Final Treasury Regulations Section 1.409A-3(g)(5) relating to
changes in the ownership or effective control of a corporation and changes in
the ownership of a substantial portion of the assets of a corporation.
1.1.1 A "Change in Control Event" occurs on the date any of the
following events occur:
(a) Any one person, or more than one person acting as a
group ("Person"), acquires ownership of stock of a
Service Recipient that, together with stock
previously held by such Person, raises the total
ownership from less than 50 percent of the total fair
market value or total voting power of such Service
Recipient to more than 50 percent of such value or
power.
(b) Any Person acquires, during the 12-month period
ending on the date of the most recent acquisition,
ownership of 35 percent or more of the total voting
power of the stock of a Service Recipient, without
regard to the stock owned by the Person before the
commencement of the 12-month period.
(c) A majority of the members of a Service Recipient's
board of directors is replaced in a 12-month period
by directors who were not endorsed by a majority of
the board prior to the election or appointment of
each director.
(d) Any Person acquires, during the 12-month period
ending on the date of the most recent acquisition,
assets from a Service Recipient with a gross fair
market value equal to or more than 40 percent of the
total gross fair market value of all the assets of
such Service Recipient prior to such acquisition or
acquisitions. Gross fair market value shall be
determined without regard to any liabilities
associated with the assets. However, this subsection
(d) shall not apply to the transfer of assets: (i) to
an entity that is controlled by the shareholders of
such Service Recipient immediately after the
transfer; (ii) to a shareholder of such Service
Recipient with respect to the shareholder's stock or
in exchange for more stock; (iii) to an entity of
which such Service Recipient owns 50 percent or more
of the total value or voting power immediately after
the transaction; (iv) to a Person that owns, directly
or indirectly, 50 percent or more of the total value
or voting power of all the outstanding stock of such
Service Recipient immediately following the
transaction; or (v) to an entity, at least 50 percent
of the total value or voting power of which is owned
immediately following the transaction, directly or
indirectly, by a Person which owns directly or
indirectly, 50 percent or more of the total value or
voting power of all the outstanding stock of such
Service Recipient.
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1.1.2 If any Person controls a corporation that is a Service
Recipient under paragraph (a) or (b) of Section 1.1.1, the acquisition of
additional control by the same Person shall not cause a Change in Control.
1.1.3 Persons will be considered to be acting as a group in
accordance with the provisions of Final Treasury Regulation Section
1.409A-3(g)(5)(vii)(C). For example, Persons will not be considered to be acting
as a group solely because they purchase or own stock of a Service Recipient at
the same time, or as a result of the same public offering. However, Persons will
be considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with a Service Recipient. Furthermore, if a person,
including an entity, owns stock in both corporations that enter into a merger,
consolidation, purchase or acquisition of stock, or similar transaction, such
shareholder is considered to be acting as a group with other shareholders in
each corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the merged corporation.
1.1.4 The term "Service Recipient" includes all of the following:
(i) the corporation for which the Executive performs services (relating to the
compensation deferred under this Agreement) at the time of a Change in Control
Event; (ii) any corporation liable to pay deferred compensation under this
Agreement; (iii) any corporation which owns more than 50 percent of the total
fair market value and total voting power of any corporation described in clause
(i) or (ii); and (iv) any corporation in a chain of corporations in which each
corporation owns more than 50 percent of the total fair market value and total
voting power of another corporation in the chain ending in a corporation
described in clause (i) or (ii).
1.2 "Code" means the Internal Revenue Code of 1986, as amended.
1.3 "Early Termination" means the Termination of Employment before
Normal Retirement Age for reasons other than death, , Termination for Cause, or
following a Change in Control.
1.4 "Early Termination Date" means the month, day, and year in
which Early Termination occurs.
1.5 "Effective Date" means August 22, 2003.
1.6 "Intentional" shall mean an act or failure to act on the
Executive's part that is not in good faith and is without a reasonable belief
that the action or failure to act is in the best interests of ARB. No act or
failure to act on the part of the Executive shall be deemed to have been
intentional if it was due primarily to an error in judgment or negligence.
1.7 "Normal Retirement Age" means the Executive's 65th birthday.
1.8 "Normal Retirement Date" means the date on which the
Termination of Employment occurs after the Executive attains the Normal
Retirement Age.
1.9 "Plan Year" means a twelve-month period commencing on January
1st, and ending on the last day of December of each year. The initial Plan Year
commenced on the Effective Date of this Agreement.
1.10 "Termination for Cause" shall mean the occurrence of any one
or more of the following:
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(a) the willful, intentional and material breach of duty
by the Executive in the course of his employment;
(b) the habitual and continued neglect by the Executive
of his employment duties and obligations under this Agreement;
(c) the Executive's willful and intentional violation of
any State of California or federal banking or securities laws, or of the Bylaws,
rules, policies or resolutions of ARB or its subsidiaries, or of the rules or
regulations of the Board of Governors of the Federal Reserve System, California
Department of Financial Institutions, Federal Deposit Insurance Corporation, or
other regulatory agency or governmental authority having jurisdiction over ARB
or its subsidiaries;
(d) the determination by a state or federal banking
agency or governmental authority having jurisdiction over ARB and its
subsidiaries that the Executive is not suitable to act in the capacity for which
he is employed by ARB;
(e) the Executive is convicted of any felony or a crime
involving moral turpitude or commits a fraudulent or dishonest act;
(f) the Executive discloses without authority any secret
or confidential information concerning ARB or its subsidiaries or takes any
action which ARB's Board of Directors determines, in its sole discretion and
subject to good faith, fair dealing and reasonableness, constitutes unfair
competition with or induces any customer to breach any contract with ARB or its
subsidiaries; or
(g) the Executive breaches the terms or provisions of
this Agreement.
1.11 "Termination of Employment" means that the Executive ceases to
be employed by ARB or any affiliate of ARB for any reason whatsoever, other than
by reason of a leave of absence approved by ARB or such affiliate.
1.12 The Executive shall be a "Specified Employee" if any stock of
ARB (or any corporation or entity that would be considered as a single employer
with ARB under Code section 414(b) or (c)) is publicly traded on an established
securities market or otherwise on the date of the Executive's Termination of
Employment and the Executive is treated as a "key employee" as of the date of
termination. The Executive shall be treated as a "key employee" for the 12 month
period beginning on April 1 of each year if he was a "key employee" of ARB (or
any corporation or entity that would be considered as a single employer with ARB
under Code section 414(b) or (c)), as defined under Code section
416(i)(1)(A)(i), (ii) or (iii) (applied in accordance with regulations
thereunder and disregarding section 416(i)(5)) during the previous calendar
year.
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. Upon Termination of Employment on
or after the Normal Retirement Age for reasons other than death, ARB shall pay
to the Executive the benefit described in this Section 2.1 in lieu of any other
benefit under this Agreement.
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2.1.1 Amount of Benefit. The annual benefit under this
Section 2.1 is One Hundred Thousand Dollars ($100,000).
2.1.2 Payment of Benefit. ARB shall pay the annual benefit
under Section 2.1 of this Agreement to the Executive in 12 equal monthly
installments payable on the first day of each month commencing with the month
following the Executive's Normal Retirement Date. The annual benefit shall be
paid to the Executive for 15 years. This payment schedule will be adjusted
pursuant to Section 2.4 if the Executive is a "Specified Employee" as defined in
Section 1.12.
2.2 Early Termination Benefit. Upon Early Termination, ARB shall
pay to the Executive the benefit described in this Section 2.2 in lieu of any
other benefit under this Agreement.
2.2.1 Amount of Benefit. The annual benefit under this
Section 2.2 is the Early Termination Benefit amount set forth on Schedule A for
the Plan Year ending immediately prior to the Early Termination Date.
2.2.2 Payment of Benefit. ARB shall pay the annual benefit
under Section 2.2 of this Agreement to the Executive in 12 equal monthly
installments payable on the first day of each month commencing with the month
following the Early Termination Date. The annual benefit shall be paid to the
Executive for 15 years. This payment schedule will be adjusted pursuant to
Section 2.4 if the Executive is a "Specified Employee" as defined in Section
1.12.
2.3 Change in Control Benefit. If during the active service of the
Executive with ARB and within a period of two (2) years following consummation
of a Change in Control, (i) the Executive's employment is terminated in
connection with the Change in Control or (ii) without the Executive's consent
and in connection with the Change in Control there occurs (A) any adverse change
in the nature and scope of the Executive's salary or benefits, or (B) any event
which reasonably constitutes a constructive termination (by resignation or
otherwise) of the Executive's employment, then there shall be a Termination of
Employment and ARB shall pay to the Executive the benefit described in this
Section 2.3 in lieu of any other benefit under this Agreement.
2.3.1 Amount of Benefit. The annual benefit under this
Section 2.3 is the Change in Control Benefit amount set forth in Schedule A for
the Plan Year ending immediately prior to the date on which the Termination of
Employment occurs.
2.3.2 Payment of Benefit. ARB shall pay the Change in
Control benefit under Section 2.3 of this Agreement to the Executive in 12 equal
monthly installments payable on the first day of each month commencing with the
first month following the occurrence of any event described in clause (i) or
(ii) of Section 2.3. The annual benefit shall be paid to the Executive for 15
years. This payment schedule will be adjusted pursuant to Section 2.4 if the
Executive is a "Specified Employee" as defined in Section 1.12.
2.4 Delayed Payment For Specified Employees. Notwithstanding the
foregoing provisions of this Article 2, if the Executive is a Specified Employee
at the time benefit payments are scheduled to begin due to Executive's
Termination of Employment, payments shall not begin until at least six months
following the date of the Executive's Termination of Employment. If benefit
payments to the Executive are delayed pursuant to this section, the first
payment after the six month delay shall be equal to the sum of all payments that
would have been made to the Executive from the date of the Executive's
Termination of Employment to the first payment date. Subsequent payments shall
be in the amounts specified above, as applicable.
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Article 3
Death Benefits
3.1 Death During Active Service. If the Executive dies before the
Normal Retirement Age while in the active service of ARB, then ARB shall pay to
the Executive's beneficiary the benefit set forth in Section 2.1 as if the
Termination of Employment occurred on the date he would have attained the Normal
Retirement Age. The annual benefit under this Section 3.1 shall be the amount
specified in Section 2.1.1 and shall be payable as provided in Section 2.1.2,
commencing on the first day of the month following the date of the Executive's
death.
3.2 Death During Benefit Period. If the Executive dies after any
benefit payments provided pursuant to Article 2 have commenced under this
Agreement but before receiving all such payments, ARB shall pay to the
Executive's beneficiary, in lieu of any other benefits under this Agreement, the
benefit set forth in Section 2.1 as if the Termination of Employment occurred on
the date he would have attained the Normal Retirement Age. The annual benefit
under this Section 3.2 shall be the amount specified in Section 2.1.1 and shall
be payable as provided in Section 2.1.2, commencing on the first day of the
month following the date of the Executive's death and continuing for the
remaining number of payment periods after taking into account the number of
benefit payments the Executive received prior to his death.
3.3 Death After Termination of Employment But Before Benefit
Payments Commence. If the Executive is entitled to any benefit payments under
Article 2 of this Agreement, but dies prior to the commencement of the benefit
payments, ARB shall pay to the Executive's beneficiary, in lieu of any other
benefit under this Agreement, the benefit set forth in Section 2.1 as if the
Termination of Employment occurred on the date he would have attained the Normal
Retirement Age. The annual benefit under this Section 3.3 shall be the amount
specified in Section 2.1.1 and shall be payable as provided in Section 2.1.2,
commencing on the first day of the month following the date of the Executive's
death.
Article 4
Beneficiaries
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with ARB. The Executive may revoke
or modify the designation at any time by filing a new designation. However,
designations will only be effective if signed by the Executive and accepted by
ARB during the Executive's lifetime. The Executive's beneficiary designation
shall be deemed automatically revoked if the beneficiary predeceases the
Executive, or if the Executive names a spouse as beneficiary and the marriage is
subsequently dissolved. If the Executive dies without a valid beneficiary
designation, all payments shall be made to the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incapacitated, or to a person incapable of handling the
disposition of his or her property, ARB may pay such benefit to the guardian,
legal representative or person having the care or custody of such minor,
incapacitated person or incapable person. ARB may require proof of incapacity,
minority or guardianship as it may deem appropriate before distribution of the
benefit. Distribution shall completely discharge ARB from all liability for the
benefit.
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Article 5
General Limitations
5.1 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, ARB shall not pay any benefit under this Agreement if
the Executive ceases to be employed by ARB as a result of a Termination for
Cause.
5.2 Suicide or Misstatement. ARB shall not pay any benefit under
this Agreement if the Executive commits suicide within two (2) years after the
date of this Agreement, or if the Executive has made any material misstatement
of fact on any application for life insurance purchased by ARB.
5.3 Insolvency. If a receiver is appointed for ARB or the Bank
Subsidiary, all obligations under this Agreement shall terminate as of the date
that ARB or the Bank Subsidiary is(are) declared insolvent, subject to any
vested rights of the Executive under applicable law.
5.4 FDIC Open-Bank Assistance. All obligations under this
Agreement shall be terminated, subject to any vested rights of the Executive
under applicable law, except to the extent it is determined that continuation of
the contract is necessary for the continued operation of the Bank Subsidiary, at
the time the Federal Deposit Insurance Corporation enters into an agreement to
provide assistance to or on behalf of the Bank Subsidiary under the authority
contained in Section 13(c) of the Federal Deposit Insurance Act [12 U.S.C.
ss.1823(c)].
Article 6
Claims and Review Procedures
6.1 Claims Procedure. A person or beneficiary ("claimant") who has
not received benefits under the Agreement that he or she believes should be paid
shall make a claim for such benefits as follows
6.1.1 Initiation - Written Claim. The claimant initiates a
claim by submitting to ARB a written claim for the benefits.
6.1.2 Timing of ARB Response. ARB shall respond to such
claimant within 90 days after receiving the claim. If ARB determines that
special circumstances require additional time for processing the claim, ARB can
extend the response period by an additional 90 days by notifying the claimant in
writing, prior to the end of the initial 90-day period, that an additional
period is required. The notice of extension must set forth the special
circumstances and the date by which ARB expects to render its decision.
6.1.3 Notice of Decision. If ARB denies part or all of the
claim, ARB shall notify the claimant in writing of such denial. ARB shall write
the notification in a manner calculated to be understood by the claimant. The
notification shall set forth the following:
6.1.3.1 The specific reasons for the denial;
6.1.3.2 A reference to the specific provisions of
the Agreement on which the denial is based;
6.1.3.3 A description of any additional information
or material necessary for the claimant to perfect the claim and an explanation
of why it is needed;
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6.1.3.4 An explanation of the Agreement's review
procedures and the time limits applicable to such procedures; and
6.1.3.5 A statement of the claimant's right to bring
a civil action under ERISA Section 502(a) following an adverse benefit
determination on review.
6.2 Review Procedure. If ARB denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by ARB of the
denial, as follows:
6.2.1 Initiation - Written Request. To initiate the review,
the claimant, within 60 days after receiving ARB's notice of denial, must file
with ARB a written request for review.
6.2.2 Additional Submissions - Information Access. The
claimant shall then have the opportunity to submit written comments, documents,
records and other information relating to the claim. ARB shall also provide the
claimant, upon request and free of charge, reasonable access to, and copies of,
all documents, records and other information relevant (as defined in applicable
ERISA regulations) to the claimant's claim for benefits.
6.2.3 Considerations on Review. In considering the review,
ARB shall take into account all materials and information the claimant submits
relating to the claim, without regard to whether such information was submitted
or considered in the initial benefit determination.
6.2.4 Timing of ARB Response. ARB shall respond in writing
to such claimant within 60 days after receiving the request for review. If ARB
determines that special circumstances require additional time for processing the
claim, ARB can extend the response period by an additional 60 days by notifying
the claimant in writing, prior to the end of the initial 60-day period, that an
additional period is required. The notice of extension must set forth the
special circumstances and the date by which ARB expects to render its decision.
6.2.5 Notice of Decision. ARB shall notify the claimant in
writing of its decision on review. ARB shall write the notification in a manner
calculated to be understood by the claimant. The notification shall set forth
the following:
6.2.5.1 The specific reason for the denial;
6.2.5.2 A reference to the specific provisions of
the Agreement on which the denial is based;
6.2.5.3 A statement that the claimant is entitled to
receive, upon request and free of charge, reasonable access to, and copies of,
all documents, records and other information relevant (as defined in applicable
ERISA regulations) to the claimant's claim for benefits; and
6.2.5.4 A statement of the claimant's right to bring
a civil action under ERISA Section 502(a).
Article 7
Miscellaneous
7.1 Amendments and Termination. This Agreement may be amended or
terminated only by a written agreement signed by ARB and the Executive.
7.2 Binding Effect. This Agreement shall bind the Executive, ARB,
and their beneficiaries, survivors, executors, successors, administrators and
transferees.
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7.3 No Guarantee of Employment. This Agreement is not an
employment policy or contract for employment. It does not give the Executive the
right to remain an employee of ARB, nor does it interfere with ARB's right to
discharge the Executive. It also does not require the Executive to remain an
employee nor interfere with the Executive's right to terminate employment at any
time.
7.4 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any manner.
7.5 Successors; Binding Agreement. ARB will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of ARB, by an assumption
agreement in form and substance satisfactory to the Executive, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that ARB would be required to perform this Agreement if no such
succession had occurred. ARB's failure to obtain an assumption agreement before
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle the Executive to the Change in Control Benefit provided in Section
2.3.
7.6 Tax Withholding. ARB shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
7.7 Applicable Law. This 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.
7.8 Unfunded Arrangement. The Executive and beneficiary are
general unsecured creditors of ARB for the payment of benefits under this
Agreement. The benefits represent the mere promise by ARB to pay the benefits.
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 Executive's life purchased by ARB is a general
asset of ARB as to which the Executive and beneficiary have no preferred or
secured claim, or any right, title or interest.
7.9 Entire Agreement. This Agreement constitutes the entire
agreement between ARB and the Executive as to the subject matter hereof. This
Agreement is intended to supersede any and all prior agreements between the
parties relating the subject matter hereof. No rights are granted to the
Executive by virtue of this Agreement other than those specifically set forth
herein.
7.10 Administration. ARB shall have the power to administer this
Agreement, including but not limited to the power to:
(a) Interpret the provisions of the Agreement;
(b) Establish and revise the method of accounting for the
Agreement;
(c) Maintain a record of benefit payments; and
(d) Establish rules and prescribe any forms necessary or
desirable to administer the Agreement.
7.11 Named Fiduciary. ARB 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.
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7.12 Severability. If for any reason any provision of this
Agreement is determined by ARB's Board of Directors, acting in good faith on
advice of counsel or other advisors, or is held by a court, arbiter or other
tribunal of competent jurisdiction, to be invalid, unenforceable or in violation
of any applicable law, rule or regulation, then this Agreement shall be modified
to the minimum extent necessary to render it valid, enforceable and in
compliance with applicable laws, rules and regulations, and as so modified, this
Agreement shall continue in full force and effect.
7.13 Headings. Caption headings and subheadings herein are included
solely for convenience of reference and shall not affect the meaning or
interpretation of any provision of this Agreement.
7.14 Notices. Any notices to be given hereunder shall be in writing
and may be transmitted by personal delivery or by U.S. mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices shall
be addressed to the Executive at the address listed in ARB's personnel file and
to ARB at its principal business office located at 0000 Xxxxxxxxx Xxxxx, Xxxxx
000, Xxxxxx Xxxxxxx, XX 00000. A party may change the address for receipt of
notices by written notice in accordance with this paragraph 7.14. Notices
delivered personally shall be deemed communicated as of the date of actual
receipt; mailed notices shall be deemed communicated as of three (3) days after
the date of mailing.
7.15 Arbitration. All claims, disputes and other matters in
question arising out of or relating to this Agreement or the breach or
interpretation thereof, other than those matters which are to be determined by
ARB in its sole and absolute discretion, shall be resolved by binding
arbitration before a representative member, selected by the mutual agreement of
the parties, of the Judicial Arbitration and Mediation Services, Inc. ("JAMS"),
in accordance with the rules and procedures of JAMS then in effect. In the event
JAMS is unable or unwilling to conduct such arbitration, or has discontinued its
business, the parties agree that a representative member, selected by the mutual
agreement of the parties, of the American Arbitration Association ("AAA"), shall
conduct such binding arbitration in accordance with the rules and procedures of
the AAA then in effect. Notice of the demand for arbitration shall be filed in
writing with the other party to this Agreement and with JAMS (or AAA, if
necessary). In no event shall the demand for arbitration be made after the date
when institution of legal or equitable proceedings based on such claim, dispute
or other matter in question would be barred by the applicable statute of
limitations. Any award rendered by JAMS or AAA shall be final and binding upon
the parties, and as applicable, their respective heirs, beneficiaries, legal
representatives, agents, successors and assigns, and may be entered in any court
having jurisdiction thereof. The obligation of the parties to arbitrate pursuant
to this clause shall be specifically enforceable in accordance with, and shall
be conducted consistently with, the provisions of Title 9 of Part 3 of the
California Code of Civil Procedure. Any arbitration hereunder shall be conducted
in Sacramento, California, unless otherwise agreed to by the parties.
7.16 Attorneys' Fees and Costs. In the event of litigation,
arbitration or any other action or proceeding between the parties to interpret
or enforce this Agreement or any part thereof or otherwise arising out of or
relating to this Agreement, the prevailing party shall be entitled to recover
its costs related to any such action or proceeding and its reasonable fees of
attorneys, accountants and expert witnesses incurred by such party in connection
with any such action or proceeding. The prevailing party shall be deemed to be
the party which obtains substantially the relief sought by final resolution,
compromise or settlement, or as may otherwise be determined by order of a court
of competent jurisdiction in the event of litigation, an award or decision of
one or more arbitrators in the event of arbitration, or a decision of a
comparable official in the event of any other action or proceeding. Any
obligation to indemnify under this Agreement includes the obligation to pay
reasonable fees of attorneys, accountants and expert witnesses incurred by the
indemnified party in connection with matters subject to indemnification.
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7.17 Internal Revenue Code Section 280G. If all or any portion of
the amounts payable to the Executive pursuant to this Agreement alone or
together with other payments which the Executive has the right to receive from
ARB, constitute "excess parachute payments" within the meaning of Section 280G
of the Internal Revenue Code of 1986, as amended (the "Code"), that are subject
to the excise tax imposed by Section 4999 of the Code (or similar tax and/or
assessment), such amounts payable hereunder shall be reduced to the extent
necessary, after first applying any similar reduction in payments to be received
from any other plan or program sponsored by ARB from which the Executive has a
right to receive payments subject to Sections 280G and 4999 of the Code,
including without limitation any employment agreement made between ARB and the
Executive, so as to cause a reduction of any excise tax pursuant to Section 4999
of the Code to equal "zero".
7.18 Review Procedure. Not less frequently than every three (3)
years during the term of this Agreement prior to the Executive commencing to
receive any benefits hereunder, ARB will review this Agreement and the benefits
that may become payable hereunder to determine whether to maintain the benefits
at the amounts specified in this Agreement or to increase the benefits. If ARB
determines, in its sole discretion, to increase the benefits, Schedule A shall
be appropriately modified.
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IN WITNESS WHEREOF, the Executive and the Chairman of the Board of ARB
have executed this Salary Continuation Agreement in the City of Sacramento,
State of California, as of the day and year first written above.
EXECUTIVE: ARB:
AMERICAN RIVER BANKSHARES
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxx
----------------------------------- -------------------------------------
Xxxxx X. Xxxxx Xxxxxxx X. Xxxx
Chairman of the Board
15
BENEFICIARY DESIGNATION
AMERICAN RIVER BANKSHARES
SALARY CONTINUATION AGREEMENT
I, Xxxxx X. Xxxxx, designate the following as beneficiary of any
benefits to which I may be entitled under my Salary Continuation Agreement with
American River Bankshares:
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 American River Bankshares. 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: /s/ Xxxxx X. Xxxxx
-------------------------
Date: February 21, 2008
-------------------------
Accepted by American River Bankshares this 21st day of February, 2008
By: /s/ Xxxxxxx X. Xxxx
------------------------
Xxxxxxx X. Xxxx
Chairman of the Board
16
SCHEDULE A
AMERICAN RIVER BANKSHARES
SALARY CONTINUATION AGREEMENT
FOR XXXXX X. XXXXX
-------- ----------- --------- ---------- ------------- ---------- ------------
Age At Early Change in
Plan Year Plan Termination Control
Plan Ending Year Benefit Benefit
Year 12/31 End Payable(1) ss.2.3(2)
-------- ----------- --------- ---------- ------------- ---------- ------------
1 2007 47 $8,000 $64,970
-------- ----------- --------- ---------- ------------- ---------- ------------
2 2008 48 $16,000 $64,970
-------- ----------- --------- ---------- ------------- ---------- ------------
3 2009 49 $24,000 $64,970
-------- ----------- --------- ---------- ------------- ---------- ------------
4 2010 50 $32,000 $64,970
-------- ----------- --------- ---------- ------------- ---------- ------------
5 2011 51 $40,000 $64,970
-------- ----------- --------- ---------- ------------- ---------- ------------
6 2012 52 $48,000 $64,970
-------- ----------- --------- ---------- ------------- ---------- ------------
7 2013 53 $56,000 $64,970
-------- ----------- --------- ---------- ------------- ---------- ------------
8 2014 54 $64,000 $64,970
-------- ----------- --------- ---------- ------------- ---------- ------------
9 2015 55 $72,000 $72,000
-------- ----------- --------- ---------- ------------- ---------- ------------
10 2016 56 $80,000 $80,000
-------- ----------- --------- ---------- ------------- ---------- ------------
11 2017 57 $88,000 $88,000
-------- ----------- --------- ---------- ------------- ---------- ------------
12 2018 58 $96,000 $96,000
-------- ----------- --------- ---------- ------------- ---------- ------------
13 2019 59 $100,000 $100,000
-------- ----------- --------- ---------- ------------- ---------- ------------
--------------------
(1) The total annual benefit for 15 years following Termination of Employment.
The Early Termination Benefit vests at an annual rate of eight percent (8%)
of the Normal Retirement Benefit.
(2) The total annual benefit for 15 years following Change in Control.
17
