Exhibit 99.5
Bank of Xxxxxx, A division OF AMERICAN RIVER BANK
AMENDED DIRECTOR RETIREMENT AGREEMENT
THIS AMENDED DIRECTOR RETIREMENT AGREEMENT is made and entered into this 21st
day of February, 2008, by and between Bank of Xxxxxx, a division of American
River Bank with its main office in Jackson, California (the "Bank"), and Xxxxx
X. Standing (the "Director"). American River Bank is a California-chartered bank
with its main office in Sacramento, California. This Agreement is a restatement
of the Agreement entered into between Bank of Xxxxxx and later assumed by Bank
of Xxxxxx, a division of American River Bank and the Director on August 1, 2003
and restated June 2, 2006, and is intended to be modified as necessary 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, the Bank is a division of American River Bank and American
River 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");
WHEREAS, to encourage the Director to remain a member of the Bank's
Board of Directors, the Bank is willing to provide retirement benefits to the
Director, and the Bank will pay such benefits from its general assets,
NOW, THEREFORE, in consideration of the foregoing premises, the
services to be performed in the future, as well as the mutual promises and
covenants contained herein, the Director and the Bank agree as follows.
AGREEMENT
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Accrual Balance" means the amount required to be accrued by
the Bank according to generally accepted accounting principles to account for
benefits that may become payable to the Director under this Agreement and as
specified in Schedule 1 attached hereto.
1.2 "Affiliate" means any entity, corporation or other business
organization controlled by, controlling or under common control with the Bank.
1.3 "Change in Control" means, with respect to the Executive, the
occurrence of a "Change in Control Event" described in Section 1.3.1 with
respect to a corporation that is a "Service Recipient" as defined in Section
1.3.4. The term "Change in Control" as defined in this Section 1.3 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.
1.3.1 A "Change in Control Event" occurs on the date any of the
following events occur:
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(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.
1.3.2 If any Person controls a corporation that is a Service
Recipient under paragraph (a) or (b) of Section 1.3.1, the acquisition of
additional control by the same Person shall not cause a Change in Control.
1.3.3 Persons will be considered to be acting as a group in
accordance with the provisions of Final Treasury Regulations 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.
1.3.4 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
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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).
1.4 "Disability" means that the Director suffers a sickness,
accident or injury that has been determined to be a permanent disability by the
carrier of any Bank-sponsored individual or group disability insurance policy
covering the Director. If the Director is not covered by such a policy,
Disability means suffering a sickness, accident or injury that (a) has been
determined by the Social Security Administration to be a disability rendering
the Director totally and permanently disabled, or (b) in the judgment of a
physician satisfactory to the Bank, prevents the Director from performing
substantially all of the Director's normal duties for the Bank. As a condition
to receiving any Disability benefits, the Bank may require the Director to
submit to physical or mental evaluations and tests, as the Bank's Board of
Directors deems appropriate. The Director must submit proof to the Bank of the
carrier's or the Social Security Administration's determination upon the request
of the Bank.
1.5 "Early Termination" means involuntary Termination of Service
before reaching Normal Retirement Age. Early Termination does not include
voluntary Termination of Service, Termination of Service as a result of death or
Disability, or Termination of Service for Cause.
1.6 "Normal Retirement Age" means the Director's 65th birthday.
1.7 "Plan Year" means a year period beginning on the effective
date of the original Agreement and ending on each respective anniversary of such
date.
1.8 "Termination of Service for Cause" means the definition of
termination for cause specified in any employment agreement existing on the date
hereof or hereafter entered into between the Director and the Bank. If the
Director is not a party to an employment agreement containing a definition of
termination for cause, then Termination of Service for Cause means the Bank has
terminated the Director's services for any of the following reasons, as
determined by the Bank's Board of Directors:
(a) an intentional or willful act of fraud, embezzlement,
theft, disloyalty or personal dishonesty in
connection with the Director's duties or in the
performance of services to the Bank, or gross
negligence on the part of the Director in the
performance of services to the Bank;
(b) intentional or willful wrongful damage to property of
the Bank or any of its Affiliates;
(c) intentional or wrongful disclosure of trade secrets
or confidential information of the Bank or any of its
Affiliates; or
(d) conviction under any law or violation of Bank policy
committed in connection with the Director's service
and resulting in an adverse effect on the Bank.
1.9 "Termination of Service" means that the Director ceases to be
a member of the Bank's Board of Directors for any reason, other than Termination
of Service for Cause. For purposes of this Agreement, if there is a dispute over
the service status of the Director or the date of the Director's Termination of
Service, the Bank shall have the sole and absolute right to decide the dispute.
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1.10 The Director shall be a "Specified Employee" if any stock of
AMRB (or any corporation or entity that would be considered as a single employer
with AMRB 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 Director is treated as a "key employee" as of the date of
termination. The Director 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 AMRB (or
any corporation or entity that would be considered as a single employer with
AMRB 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
Retirement Benefits
2.1 Normal Retirement Benefit. Subject to the general limitations
under Article 4 hereof, upon Termination of Service on or after Normal
Retirement Age, the Bank shall pay to the Director the benefit described in this
Article 2.1 instead of any other benefit under this Article 2.
(a) Amount of Benefit. The annual benefit under this
Article 2.1 is eighteen thousand dollars ($18,000).
(b) Payment of Benefit. The Bank shall pay this annual
benefit to the Director in twelve (12) equal monthly
installments beginning on the last day of the month
after the month in which Termination of Service
occurs. The benefit shall be paid to the Director on
the last day of each month for one hundred twenty
(120) months. This payment schedule will be adjusted
pursuant to Section 2.7 if the Director is a
"Specified Employee" as defined in Section 1.10.
2.2 Early Termination Benefit. Subject to the general limitations
under Article 4 hereof, upon Early Termination, the Bank shall pay to the
Director the benefit described in this Article 2.2 instead of any other benefit
under this Article 2.
(a) Amount of Benefit. The benefit under this Article 2.2
shall be the Accrual Balance for the last full month
of the Director's service ending immediately before
the date on which Early Termination occurred. For
every year except the first Plan Year, the benefit
under this Article 2.2 is determined by vesting the
Director in one hundred percent (100%) of the Accrual
Balance for the last full month of the Director's
service ending immediately before the date on which
Early Termination occurs.
(b) Payment of Benefit. The Bank shall pay this benefit
to the Director in one hundred twenty (120) equal
monthly installments beginning on the last day of the
month after the month in which Termination of Service
occurs. This payment schedule will be adjusted
pursuant to Section 2.7 if the Director is a
"Specified Employee" as defined in Section 1.10.
2.3 Disability Benefit. Subject to the general limitations under
Article 4 hereof, upon Termination of Service due to Disability before his or
her Normal Retirement Age, the Bank shall pay to the Director the benefit
described in this Article 2.3 instead of any other benefit under this Article 2.
(a) Amount of Benefit. The benefit under this Article 2.3
shall be the Accrual Balance for the last full month
of the Director's service ending immediately before
the date on which Termination of Service due to
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Disability occurred (except during the first Plan
Year, when the benefit shall be the Accrual Balance
at the end of Plan Year 1). For every year except the
first Plan Year, the benefit under this Article 2.3
is determined by vesting the Director in one hundred
percent (100%) of the Accrual Balance for the last
full month of the Director's service ending
immediately before the date on which Termination of
Service due to Disability occurs.
(b) Payment of Benefit. The Bank shall pay this benefit
to the Director in one hundred twenty (120) equal
monthly installments beginning on the last day of the
month after the month in which Termination of Service
occurs. This payment schedule will be adjusted
pursuant to Section 2.7 if the Director is a
"Specified Employee" as defined in Section 1.10.
(c) If the benefit under this Article 2.3 would cause a
reduction or set-off of any other Bank-sponsored
disability plan benefits, the benefits under this
Agreement shall be deferred until all other
Bank-sponsored disability plan benefits are
exhausted.
2.4 Change in Control Benefit. Upon a Change in Control, if the
Director's Normal Retirement Age or Termination of Service for any reason has
not occurred, the Bank shall pay to the Director the benefit described in this
Article 2.4 instead of any other benefit under this Article 2, regardless of
whether the Director's Termination of Service occurs after the Change in
Control.
(a) Amount of Benefit. The benefit under this Article 2.4
shall be determined by vesting the Director in one
hundred percent (100%) of the Accrual Balance for the
Director's Normal Retirement Benefit at Normal
Retirement Age as set forth under Article 2.1. The
vesting of this Accrual Balance shall be accelerated
immediately upon a Change in Control.
(b) Payment of Benefit. The Bank shall pay the amount of
the Accrual Balance to the Director in a single lump
sum no sooner than six (6) months and no later than
nine (9) months days following the occurrence of any
event described in Section. This payment schedule
will be adjusted pursuant to Section 2.7 if the
Director is a "Specified Employee" as defined in
Section 1.10.
(c) No "Parachute Payments." Notwithstanding any
provision of this Article 2.4, no payment shall be
made pursuant to this Agreement to the Director if he
or she constitutes a "disqualified individual," as
defined under Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"), to the extent
that such payment, when aggregated with all other
payments considered for purposes of calculating a
"parachute payment," results in an "excess parachute
payment" under the Code. If the Internal Revenue
Service or any other tax authority makes any claim,
demand or assessment in any form based directly or
indirectly, in whole or in part, on the allegation
that any payment under this Agreement and/or any
other payment by the Bank to or for the benefit of
the Director at any time constitutes a "parachute
payment" under Section 280G of the Code or any
similar or successor provision of federal or state
law, the Director agrees that he or she shall return
the amounts constituting the "excess parachute
payment."
2.5 Payout of Normal Retirement Benefit, Early Termination Benefit
or Disability Benefit after a Change in Control. If a Change in Control occurs
at any time during a benefit payment period under this Agreement, and if at the
time of that Change in Control, the Director is receiving the Normal Retirement
Age benefit provided by Article 2.1, the Early Termination benefit provided by
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Article 2.2, or the Disability benefit provided by Article 2.3, the Bank shall
pay to the Director in a lump sum within thirty (30) days after the Change in
Control, the Accrual Balance corresponding to the respective benefit for the
last full month ending immediately before the effective date of the Change in
Control after deduction of any Normal Retirement Age, Early Termination or
Disability benefits already paid, unless the Change in Control occurs within six
(6) months of the Termination of Service, in such case the Director must wait
until the expiration of six (6) months after Termination of Service to receive
such lump sum payment.. If the remaining Accrual Balance is paid in a single
lump sum, the Bank shall have no further obligations under this Agreement.
2.6 Petition for Lump Sum Payment. If the Director is entitled to
the Normal Retirement Age benefit provided by Article 2.1, the Early Termination
benefit provided by Article 2.2 or the Disability benefit provided by Article
2.3, the Director may petition the Board of Directors to have the Accrual
Balance corresponding to that particular benefit paid to the Director in a
single lump sum after the deduction of any Early Termination or Disability
amounts already paid. The Board of Directors shall have sole and absolute
discretion about whether to pay the Accrual Balance in a lump sum. If the
Accrual Balance is paid in a single lump sum, the Bank shall have no further
obligations under this Agreement.
2.7 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.
ARTICLE 3
Death Benefits
3.1 Death Benefits. For so long as the Bank, in its sole
discretion, maintains a life insurance policy on the Director, after the
Director's death the Bank shall pay to the Director's beneficiary(ies) or estate
the benefit described in the Split Dollar Agreement and Split Dollar
Endorsement, attached to this Agreement as Exhibit A, between the Bank and the
Director, in accordance with the terms and conditions of the Split Dollar
Agreement and Split Dollar Endorsement. If any other benefit payments are being
made pursuant to this Agreement at the time of the Director's death, they shall
cease immediately, and the Director shall be entitled only to the benefits
described in this Article 3.
3.2 Beneficiary Designations. With regard to the death benefits
under this Article 3, the Director shall designate a beneficiary by filing a
written beneficiary designation, in the form of Exhibit B, with the Bank. The
Director may revoke or modify the designation at any time by filing a new
designation. However, designations will be effective if and only if signed by
the Director and received by the Bank during the Director's lifetime. The
Director's beneficiary designation shall be deemed automatically revoked if the
beneficiary predeceases the Director or if the Director names a spouse as
beneficiary, and the marriage is subsequently dissolved. If the Director dies
without a valid beneficiary designation, the Director's estate shall be the
beneficiary.
3.3 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, the Bank may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incapacitated person or incapable person. The Bank may require proof of
incapacity, minority or guardianship as it may deem appropriate prior to
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distribution of the benefit. Such distribution shall completely discharge the
Bank from all liability with respect to such benefit.
ARTICLE 4
General Limitations
4.1 Termination of Service for Cause. Notwithstanding any
provision of this Agreement to the contrary, the Bank shall not pay any benefit
under this Agreement if the Director's actions result in Termination of Service
for Cause.
4.2 Confidential Information. The Director acknowledges that
during the course of his or her services with the Bank, he or she handled
confidential information of the Bank and its Affiliates. The Director agrees he
or she will retain in the strictest confidence all confidential matters that
relate to the Bank or its Affiliates, including, without limitation, pricing
lists, business plans, financial projections and reports, business strategies,
internal operating procedures and other confidential business information from
which the Bank derives an economic or competitive advantage or from which the
Bank might derive such advantage in its business, whether or not labeled
"secret" or "confidential," and not to disclose such information directly or
indirectly or use such information in any way, at any time, except as required
by law.
4.3 Trade Secrets. The Director shall not disclose to any others
or take or use for the Director's own purposes or purposes of any others at any
time, any of the Bank's trade secrets, including without limitation,
confidential information; customer lists; information concerning current or any
future and proposed work, services or products; the fact that any such work,
services or products are planned, under consideration, or in production, as well
as any description thereof; computer programs; or computer software. The
Director agrees that these restrictions shall also apply to (a) trade secrets
belonging to third parties in the Bank's possession, and (b) trade secrets
conceived, originated, discovered or developed by the Director during the term
of his or her service.
4.4 Inventions; Ownership Rights. The Director agrees that all
ideas, techniques, inventions, systems, formulas, discoveries, technical
information, programs, prototypes and similar developments ("Developments")
developed, created, discovered, made, written or obtained by him or her in the
course of or as a result, directly or indirectly, of performance of his or her
service to the Bank, and all related intellectual property, including
copyrights, patent rights, trade secrets and other forms of protection thereof,
shall be and remain the property of the Bank. The Director agrees to execute or
cause to be executed such assignments and applications, registrations and other
documents and to take such other action as may be requested by the Bank to
enable the Bank to protect its rights to any such Developments.
4.5 No Disparagement. The parties agree to treat each other
respectfully and professionally and not disparage the other party (or the other
party's officers, directors, employees, shareholders and agents) in any manner
likely to be harmful to them or their business, business reputation or personal
reputation; provided that both the Director and the Bank will respond accurately
and fully to any question, inquiry or request for information when required by
legal process.
4.6 Non-Interference; No Solicitation. The Director agrees not to
interfere with any of the Bank's contractual obligations with others.
Furthermore, the Director agrees that during the longer of (i) the period while
he or she is receiving any benefit payments pursuant to this Agreement, or (ii)
a period of two (2) years after the date of Termination of Service or
Termination of Service for Cause, not to, without the Bank's express written
consent, on his or her behalf or on behalf of another: (a) contact or solicit
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the business of any client, customer, creditor or licensee of the Bank or its
Affiliates, or (b) hire employees of the Bank or its Affiliates.
4.7 Return of Materials. After Termination of Service or
Termination of Service for Cause, the Director agrees to deliver or return to
the Bank all written confidential information furnished by the Bank or its
Affiliates or prepared by the Director in connection with his or her services to
the Bank and to destroy all such information stored on electronic media. The
Director shall retain no copies thereof after his or her Termination of Service
or Termination of Service for Cause.
4.8 Remedies and Injunctive Relief. Without intending to limit the
remedies available to the Bank, the Director agrees that damages at law are an
insufficient remedy for violation by the Director of his or her covenants
contained this Article 4. Accordingly, the Director hereby agrees that the Bank
may apply for and is entitled to injunctive relief in any court of competent
jurisdiction to restrain the breach or threatened breach of, or otherwise to
specifically enforce, any of his or her covenants contained in this Article 4,
in each case without proof of actual damages, in addition to any other remedies
that may be available under applicable law. The Director hereby waives the claim
or defense that an adequate remedy at law is available to the Bank, and the
Director agrees not to urge in any action or proceeding the claim or defense
that an adequate remedy at law exists. Without limiting the generality of the
foregoing, without limiting the remedies available to the Bank for violation of
this Agreement, and without constituting an election of remedies, if the
Director violates any of the terms of this Article 4 prior to or during the
period when any benefits under this Agreement are being paid, he or she shall
forfeit immediately any rights to and interest in any compensation or benefits
payable under this Agreement, and the Bank may seek repayment of any benefits
already paid to the Director.
4.9 Suicide or Misstatement. The Bank shall not pay any benefit
under this Agreement if it is determined that the Director has committed
suicide. In addition, the Bank shall not pay any benefit under this Agreement if
the Director has made any material omission or misstatement of fact on any
application, resume or on any application for any benefits provided to the Bank.
4.10 Removal. If the Director is removed from service and/or
permanently prohibited from participating in the conduct of the Bank's affairs
by an order issued under the Federal Deposit Insurance Act, all obligations of
the Bank under this Agreement shall terminate as of the effective date of the
order.
4.11 Insolvency. If the Commissioner of the California Department
of Financial Institutions appoints the Federal Deposit Insurance Corporation as
receiver for the Bank, all obligations under this Agreement shall terminate as
of the date of the Bank's declared insolvency.
4.12 Default. If the Bank is in default as defined in the Federal
Deposit Insurance Act, all obligations under this Agreement shall terminate as
of the date of default.
4.13 FDIC Open-Bank Assistance. All obligations under this
Agreement will be terminated, except to the extent determined that continuation
of the Agreement is necessary for the continued operation of the Bank, by the
Director of the Office of Thrift Supervision or his or her designee, at the time
the Federal Deposit Insurance Corporation enters into an agreement to provide
assistance to or on behalf of the Bank.
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Article 5
Claims and Review Procedures
5.1 Claims Procedure. The Bank shall notify any person or entity
that makes a claim for benefits under this Agreement (the "Claimant") in
writing, within ninety (90) days of Claimant's written application for benefits,
of his or her eligibility or noneligibility for benefits under the Agreement. If
the Bank determines that the Claimant is not eligible for benefits or full
benefits, the notice shall set forth (a) the specific reasons for such denial,
(b) a specific reference to the provisions of the Agreement on which the denial
is based, (c) a description of any additional information or material necessary
for the Claimant to perfect his or her claim, and a description of why it is
needed, and (d) an explanation of the Agreement's claims review procedure and
other appropriate information as to the steps to be taken if the Claimant wishes
to have the claim reviewed. If the Bank determines that there are special
circumstances requiring additional time to make a decision, the Bank shall
notify the Claimant of the special circumstances and the date by which a
decision is expected to be made, and may extend the time for up to an additional
ninety (90) days.
5.2 Review Procedure. If the Claimant is determined by the Bank
not to be eligible for benefits, or if the Claimant believes that he or she is
entitled to greater or different benefits, the Claimant shall have the
opportunity to have such claim reviewed by the Bank by filing a petition for
review with the Bank within sixty (60) days after receipt of the notice issued
by the Bank. Said petition shall state the specific reasons that the Claimant
believes entitle him or her to benefits or to greater or different benefits.
Within sixty (60) days after receipt by the Bank of the petition, the Bank shall
afford the Claimant (and counsel, if any) an opportunity to present his or her
position to the Bank verbally or in writing, and the Claimant (or counsel) shall
have the right to review the pertinent documents. The Bank shall notify the
Claimant of its decision in writing within the sixty (60) day period, stating
specifically the basis of its decision, written in a manner to be understood by
the Claimant and the specific provisions of the Agreement on which the decision
is based. If, because of the need for a hearing, the sixty (60) day period is
not sufficient, the decision may be deferred for up to another sixty (60) days
at the election of the Bank, but notice of this deferral shall be given to the
Claimant.
Article 6
Miscellaneous
6.1 Binding Effect. This Agreement shall bind the Director and the
Bank, and their beneficiaries, survivors, executors, successors, administrators
and transferees.
6.2 No Guarantee of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain a Director of the
Bank, nor does the Agreement interfere with the rights of the Bank's
stockholder(s) not to re-elect the Director or the right of stockholder(s) or
the Board of Directors to remove or to not nominate an individual as a director
of the Bank. The Agreement also does not require the Director to remain a
director nor interfere with the Director's right to terminate services at any
time.
6.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any manner,
except by will or the laws of descent and distribution, except that the Director
shall have the right to assign his or her rights and interests in any insurance
policy that the Bank chooses to maintain on his or her life with respect only to
that portion of the death proceeds designated by the Split Dollar Endorsement
and to exercise all settlement options with respect to such death proceeds.
6.4 Successors; Binding Agreement. The Bank 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 the
Bank, by an assumption agreement in form and substance satisfactory to the
Director, to expressly assume and agree to perform the obligations under this
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Agreement. The Bank's failure to obtain such an assumption agreement before such
succession becomes effective shall be considered a breach of this Agreement.
6.5 Amendment and Termination. This Agreement may be amended or
terminated only by a written agreement signed by the Bank and the Director.
6.6 Tax Withholding. The Bank shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
6.7 Applicable Law. The Agreement and all rights hereunder shall
be governed by the internal substantive laws of the State of California, without
regard to principles of conflicts of laws.
6.8 Unfunded Arrangement; No Ownership Rights. The Director and
beneficiary(ies) are general unsecured creditors of the Bank for the payment of
benefits under this Agreement. The benefits represent a mere promise by the Bank
to pay such benefits. The rights to benefits are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by creditors. Any insurance on the Director's life is
a general asset of the Bank to which the Director and beneficiary(ies) have no
preferred or secured claim.
In the event that the Bank, in its sole and absolute discretion, elects
to acquire an insurance policy or any other asset to recoup the costs or any
portion thereof of the benefits under this Agreement, then such insurance policy
or other assets shall not be deemed to be held under any trust for the benefit
of the Director or his beneficiaries or to be a security for the performance of
the obligations of the Director under this Agreement, but shall be, and remain,
a general unpledged, unrestricted asset of the Bank. The Director and his or her
beneficiaries shall have no rights whatsoever with respect to, or any claim
against, any such insurance policy or other asset.
6.9 Entire Agreement. This Agreement constitutes the entire
agreement between the Bank and the Director as to the subject matter hereof. No
rights are granted to the Director under this Agreement other than those
specifically set forth herein.
6.10 Administration. The Bank shall have all powers necessary to
administer this Agreement, including but not limited to:
(a) interpreting the provisions of the Agreement;
(b) establishing and revising the method of accounting
for the Agreement;
(c) maintaining a record of benefit payments; and
(d) establishing rules and prescribing any forms
necessary or desirable to administer the Agreement.
6.11 Named Fiduciary. The Bank shall be the named fiduciary and
plan administrator under this Agreement. The named fiduciary may delegate to
others certain aspects of the management and operational responsibilities of the
plan, including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
6.12 Severability. If for any reason any provision of this
Agreement is held invalid, such invalidity shall not affect any other provision
of this Agreement not held so invalid, and each such other provision shall
68
continue in full force and effect to the full extent consistent with the law. If
any provision of this Agreement is held invalid in part, such invalidity shall
in no way affect the rest of such provision not held so invalid, and the rest of
such provision together with all other provisions of this Agreement shall
continue in full force and effect to the full extent consistent with the law.
6.13 Headings. The headings of sections herein are included solely
for convenience of reference and shall not affect the meaning or interpretation
of any provision of this Agreement.
6.14 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand or mailed, certified or registered mail, return
receipt requested, with postage prepaid, to the following addresses or to such
other address as either party may designate by like notice.
(a) If to the Bank, to: Bank of Xxxxxx, a division of
American River Bank
c/o American River Bank
0000 Xxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Chairman of the Board of
Directors
(b) If to the Director, to: Xxxxx Standing
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxx 00000
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
6.15 Termination or Modification of Agreement by Reason of Changes
in the Law, Rules or Regulations. The Bank is entering into this Agreement on
the assumption that certain existing corporate, accounting and tax laws, rules
and regulations will continue in effect in their current form. If the corporate,
accounting and tax laws, rules and regulations change materially and if the
changes have a material detrimental effect on this Agreement, the Bank reserves
the right to terminate or modify this Agreement accordingly, subject to
obtaining the written consent of the Director, which shall not be unreasonably
withheld.
6.16 Advice of Counsel. Before signing this Agreement, the Director
either (a) consulted with and obtained advice from the Director's independent
legal counsel concerning the legal nature and operations of this Agreement,
including its impact on the Director's rights, privileges and obligations, or
(b) freely and voluntarily decided not to have the benefit of such consultation
and advice with legal counsel.
69
IN WITNESS WHEREOF, the Director and a duly authorized officer of the
Bank have signed this Agreement on the dates stated below.
DIRECTOR BANK OF XXXXXX, A DIVISION OF
AMERICAN RIVER BANK
Name: Xxxxx Standing By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Signature: /s/ Xxxxx X. Standing Name: Xxxxxxx X. Xxxx
----------------------- ------------------------------
Date: February 21, 2008 Title: Chairman of the Board
----------------------- ------------------------------
Date: February 21, 2008
------------------------------
70
SCHEDULE 1
XXXXX STANDING
Ending
Account
Year Age Balance
--------------- ----------- -------------
1 60 10,544
2 61 33,690
3 62 59,799
4 63 89,160
5 64 122,086
--------------- ----------- -------------
6 65 125,865
7 66 115,516
8 67 104,495
9 68 92,757
10 69 80,256
--------------- ----------- -------------
11 70 66,942
12 71 52,763
13 72 37,663
14 73 21,580
15 74 4,453
--------------- ----------- -------------
16 75 0
--------------- ----------- -------------
71
