EXHIBIT 99.5
AMERICAN RIVER BANK
SALARY CONTINUATION AGREEMENT MODIFICATION
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American River Bank, a California chartered, FDIC-insured bank with its main
office in Sacramento, California (the "Bank") and Xxxxxxx X. Tow (the
"Executive") agree to modify the parties' Salary Continuation Agreement dated
June 2, 2006 ("Agreement") as set forth herein. Except as expressly provided
herein, the parties' Agreement shall remain unchanged and in full force and
effect. The Bank is a wholly-owned subsidiary of American River Bankshares, a
California corporation and bank holding company registered under the Bank
Holding Company Act of 1956, as amended, ("AMRB").
Modification No. 1:
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The word "premises" in ninth paragraph of the Agreement is replaced with the
word "promises."
Modification No. 2:
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Article 1 of the Agreement shall read:
1.1 "Change in Control" means, with respect to the Executive, 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 Proposed Treasury Regulation 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
corporation 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 corporation 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 corporation, 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 corporation'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 corporation 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
corporation 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 corporation immediately after the transfer; (ii)
to a shareholder of such corporation with respect to
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the shareholder's stock or in exchange for more
stock; (iii) to an entity of which such corporation
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 corporation 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 corporation.
1.1.2 If any Person controls a corporation 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 Proposed 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 corporation 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 "Disability" shall have the meaning given such term in any
policy of disability insurance maintained by the Bank for the benefit of
employees including the Executive; provided that the Executive must, by reason
of any medically determinable physical or mental impairment that can be expected
to result in death or to last for a continuous period of at least 12 months (i)
be unable to engage in any substantial gainful activity or (ii) receive income
replacement benefits for a period of at least three months under an accident and
health plan covering other employees of the Bank.
1.4 "Early Termination" means the Termination of Employment before
Normal Retirement Age for reasons other than death, Disability, Termination for
Cause, or following a Change in Control.
1.5 "Early Termination Date" means the month, day, and year in
which Early Termination occurs.
1.6 "Effective Date" means August 22, 2003
1.7 "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 the Bank. 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.
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1.8 "Normal Retirement Age" means the Executive's 65th birthday.
1.9 "Normal Retirement Date" means the date on which the
Termination of Employment occurs after the Executive attains the Normal
Retirement Age.
1.10 "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
shall commence on the Effective Date of this Agreement.
1.11 "Termination for Cause" shall mean the occurrence of any one
or more of the following:
(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 laws, or of the Bylaws, rules,
policies or resolutions of the Bank or AMRB and their respective subsidiaries,
or 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 the Bank or AMRB;
(d) the determination by a state or federal banking
agency or governmental authority having jurisdiction over the Bank or AMRB that
the Executive is not suitable to act in the capacity for which he is employed by
the Bank ;
(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 the Bank, AMRB or their respective
subsidiaries or takes any action which the Bank '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 the Bank, AMRB or their respective subsidiaries; or
(g) the Executive breaches the terms or provisions of
this Agreement.
1.12 "Termination of Employment" means that the Executive ceases to
be employed by the Bank or any affiliate of the Bank for any reason whatsoever,
other than by reason of a leave of absence approved by the Bank or such
affiliate.
Modification No. 3:
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Section 2.2 of Article 2 of the Agreement shall read:
2.2 Early Termination Benefit. Upon Early Termination, the Bank
shall pay to the Executive the benefit described in this Section 2.2 in lieu of
any other benefit under this Agreement.
Modification No. 4:
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Schedule A of the Agreement shall be replaced with the following schedule:
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SCHEDULE A
AMERICAN RIVER BANK
SALARY CONTINUATION AGREEMENT
FOR XXXXXXX X. TOW
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Age At Early Change in
Plan Year Plan Termination Disability Control
Plan Ending Year Benefit Annual Benefit
Year 12/31 End Payable* Benefit** ss.2.4***
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1 2007 53 $ 2,500 $ 2,500 $32,485
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2 2008 54 $ 5,000 $ 5,000 $32,485
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3 2009 55 $ 7,500 $ 7,500 $32,485
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4 2010 56 $10,000 $10,000 $32,485
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5 2011 57 $12,500 $12,500 $32,485
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6 2012 58 $15,000 $15,000 $32,485
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7 2013 59 $17,500 $17,500 $32,485
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8 2014 60 $20,000 $20,000 $32,485
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9 2015 61 $22,500 $22,500 $32,485
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10 2016 62 $25,000 $25,000 $32,485
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11 2017 63 $27,500 $27,500 $32,485
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12 2018 64 $30,000 $30,000 $32,485
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13 2019 65 $50,000 $50,000 $50,000
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* The total annual benefit for 15 years following Termination of Employment.
** The total annual benefit for 15 years following Termination of Employment.
*** The total annual benefit for 15 years following Change in Control.
EXECUTIVE: BANK:
AMERICAN RIVER BANK
/s/ XXXXXXX X. TOW By: /s/ XXXXXXX X. XXXX
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Xxxxxxx X. Tow Xxxxxxx X. Xxxx
Chairman of the Board
Date: January 3, 2007 Date: January 3, 2007
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