EXHIBIT 10.7 (E)
EXECUTIVE SALARY CONTINUATION AGREEMENT
XXXXX XXXXXXXXXXX
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EXECUTIVE SALARY CONTINUATION AGREEMENT
This Agreement is made and entered into this first day of January, 1998, by
and between Tehama Bank, a banking corporation organized under the laws of the
State of California, Tehama Bancorp, a California corporation (Tehama Bank and
Tehama Bancorp together, the "Employer"), and Xxxxx Xxxxxxxxxxx, an individual
residing in the State of California (hereinafter referred to as the
"Executive").
R E C I T A L S
WHEREAS, the Executive is an employee of the Employer and is serving
as its Vice President and SBA Loan Officer;
WHEREAS, the Executive's experience and knowledge of the affairs of
the Employer and the banking industry are extensive and valuable;
WHEREAS, it is deemed to be in the best interests of the Employer to
provide the Executive with certain salary continuation benefits, on the terms
and conditions set forth herein, in order to reasonably induce the Executive to
remain in the Employer's employment; and
WHEREAS, the Executive and the Employer wish to specify in writing the
terms and conditions upon which this additional compensatory incentive will be
provided to the Executive, or to the Executive's spouse or the Executive's
designated beneficiaries, as the case may be;
NOW, THEREFORE, in consideration of the services to be performed in
the future, as well as the mutual promises and covenants contained herein, the
Executive and the Employer agree as follows:
A G R E E M E N T
1. TERMS AND DEFINITIONS.
1.1. ADMINISTRATOR. The Employer shall be the "Administrator"
and, solely for the purposes of ERISA, the "fiduciary" of this Agreement where a
fiduciary is required by ERISA.
1.2. ANNUAL BENEFIT. The term "Annual Benefit" shall mean an
annual sum of Fifty Thousand Dollars ($50,000) multiplied by the Applicable
Percentage (defined below) and then reduced to the extent: (i) required under
the other provisions of this Agreement, including, but not limited to,
Paragraphs 5, 6 and 7 hereof; (ii) required by reason of the lawful order of any
regulatory agency or body having jurisdiction over the Employer; and
(iii) required in order for the Employer to properly comply with any and all
applicable
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state and federal laws, including, but not limited to, income, employment and
disability income tax laws (e.g., FICA, FUTA, SDI).
1.3. APPLICABLE PERCENTAGE. The term "Applicable Percentage"
shall mean that percentage listed on Schedule "A" attached hereto which is
adjacent to the number of complete years (with a "year" being the performance
of personal services for or on behalf of the Employer for a period of 365
days) which have elapsed starting from the Effective Date of this Agreement
and ending on the earlier of: (a) the date Executive dies (except as
provided below in this Paragraph); (b) the date Executive Retires (as defined
below); (c) the date Executive ceases to be employed by Employer (other than
by reason of Disability, as defined below); or (d) in the case of Executive's
Disability (as defined below), the date Executive becomes Disabled (as
defined below). Notwithstanding the foregoing or the percentages set forth
on Schedule "A," but subject to all other terms and conditions set forth
herein, the "Applicable Percentage" shall be: (i) one hundred percent (100%)
in the event the Executive dies prior to Retirement but while employed full
time by the employer; and (ii) zero percent (0%) in the event the Executive
takes any action which prevents the Employer from collecting the proceeds of
any life insurance policy which the Employer may happen to own at the time of
the Executive's death and of which the Employer is the designated
beneficiary.
1.4. BENEFICIARY. The term "beneficiary" or "designated
beneficiary" shall mean the person or persons whom the Executive shall
designate in a valid Beneficiary Designation, a copy of which is attached
hereto as Exhibit "B," to receive the benefits provided hereunder. A
Beneficiary Designation shall be valid only if it is in the form attached
hereto and made a part hereof and is received by the Administrator prior to
the Executive's death.
1.5. CHANGE IN CONTROL. The term "Change in Control" shall
mean, with respect to the Employer: (i) a change in control of the Employer
of a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or in response to any other form or
report to the regulatory agencies or governmental authorities having
jurisdiction over the Employer or any stock exchange on which the Employer's
shares are listed which requires the reporting of a change in control; (ii)
any merger, consolidation or reorganization of the Employer in which the
Employer does not survive; (iii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of
transactions) of any assets of the Employer having an aggregate fair market
value of fifty percent (50%) of the total value of the assets of the
Employer, reflected in the most recent balance sheet of the Employer; (iv) a
transaction whereby any "person" (as such term is used in the Exchange Act or
any individual, corporation, partnership, trust or any other entity) becomes
the beneficial owner, directly or indirectly, of securities of the Employer
representing twenty-five percent (25%) or more of the combined voting power
of the Employer's then outstanding securities; or (v) a situation where, in
any one-year period, individuals who at the beginning of such period
constitute the Board of Directors of the Employer cease for any reason to
constitute at least a majority thereof, unless the election, or the
nomination for election by the Employer's shareholders, of each new director
is approved by a vote of at least
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three-quarters (3/4) of the directors then still in office who were directors
at the beginning of the period.
1.6. THE CODE. The "Code" shall mean the Internal Revenue Code
of 1986, as amended (the "Code").
1.7. DISABILITY/DISABLED. The term "Disability" or "Disabled"
shall have the same meaning given such term in the principal disability
insurance policy covering the Executive, which is incorporated herein by
reference to the limited extent thereof. In the event the Executive is not
covered by a disability policy containing a definition of "Disability" or
"Disabled," these terms shall mean an illness or incapacity which, having
continued for a period of one hundred and eighty (180) consecutive days,
prevents the Executive from adequately performing the Executive's regular
employment duties, as determined by an independent physician selected by mutual
agreement of the parties. For purposes of determining the Applicable
Percentage, the Executive shall be deemed to be Disabled as of the first day on
which the Executive is treated as being Disabled under the Executive's principal
disability insurance policy or, if no such policy exists, the one hundred and
eightieth (180th) consecutive day of the Executive's illness or incapacity, as
determined above.
1.8. EFFECTIVE DATE. The term "Effective Date" shall mean the
date upon which this Agreement was entered into by the parties, as first written
above.
1.9. ERISA. The term "ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as amended.
1.10. PLAN YEAR. The term "Plan Year" shall mean the
Employer's fiscal year.
1.11. RETIREMENT. The term "Retirement" or "Retires" shall
refer to the date which the Executive acknowledges in writing to Employer, after
attaining sixty-two (62) years of age, to be the last day he will provide any
significant personal services, whether as an employee or independent consultant
or contractor, to Employer and to, for, or on behalf of, any other business
entity conducting, performing or making available to any person or entity
banking or other financial services of any kind. For purposes of this
Agreement, the phrase "significant personal services" shall mean more than ten
(10) hours of personal services rendered to one or more individuals or entities
in any thirty (30) day period.
1.12. SURVIVING SPOUSE. The term "Surviving Spouse" shall mean
the person, if any, who shall be legally married to the Executive on the date
of the Executive's death.
1.13. TERMINATION FOR CAUSE. The term "Termination for Cause"
shall mean termination of the employment of the Executive by reason of any of
the following:
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(a) A termination "for cause" as this term may be defined in any
written employment agreement entered into by and between the Employer and the
Executive;
(b) The willful breach of duty by the Executive in the course of
his employment;
(c) The habitual neglect by the Executive of his employment
responsibilities and duties;
(d) The Executive's deliberate violation of any state or federal
banking or securities laws, or of the Bylaws, rules, policies or resolutions of
the Employer, or of the rules or regulations of: (i) the California Department
of Financial Institutions; (ii) the Board of Governors of the Federal Reserve
System; (iii) the Federal Deposit Insurance Corporation; or (iv) any other state
or federal regulatory agency or governmental authority having jurisdiction over
the Employer;
(e) The determination by a state or federal banking agency or
other governmental authority having jurisdiction over the Employer that the
Executive is not suitable to act in the capacity for which he is employed by the
Employer;
(f) The Executive is convicted of any felony or a crime
involving moral turpitude or a fraudulent or dishonest act;
(g) The Executive discloses without authority any secret or
confidential information not otherwise publicly available concerning the
Employer or takes any action which the Employer'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 Employer;
(h) Persistent substandard job performance as measured by the
system of performance review maintained by the Bank with respect to its
executive employees generally; or
(i) Action or conduct which, either by itself or as a
significant cause among other facts and circumstances, in the reasonable opinion
of management of the Bank exposes the Bank to a significant risk of financial
liability or regulatory criticism or discipline, including, without limitation,
action or conduct evidencing discrimination on the grounds of race, color, sex
(including sexual harassment and pregnancy), national origin, ancestry, age (40
and over), mental or physical disability, or any other grounds proscribed by law
or Bank policy.
2. SCOPE, PURPOSE AND EFFECT.
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2.1. CONTRACT OF EMPLOYMENT. Although this Agreement is intended
to provide the Executive with an additional incentive to remain in the employ of
the Employer, this Agreement shall not be deemed to constitute a contract of
employment between the Executive and the Employer nor shall any provision of
this Agreement restrict or expand the right of the Employer to terminate the
Executive's employment. This Agreement shall have no impact or effect upon any
separate written Employment Agreement which the Executive may have with the
Employer, it being the parties' intention and agreement that unless this
Agreement is specifically referenced in said Employment Agreement (or any
modification thereto), this Agreement (and the Employer's obligations hereunder)
shall stand separate and apart and shall have no effect upon, nor be affected
by, the terms and provisions of said Employment Agreement.
2.2. FRINGE BENEFIT. The benefits provided by this Agreement are
granted by the Employer as a fringe benefit to the Executive and are not a 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 payments or bonus in
lieu of the benefits provided by this Agreement.
3. PAYMENTS UPON OR AFTER RETIREMENT.
3.1. PAYMENTS UPON RETIREMENT. If the Executive shall remain in
the continuous employment of the Employer until attaining sixty-two (62) years
of age, the Executive shall be entitled to be paid the Annual Benefit, as
defined above, in equal monthly installments, for a period of fifteen (15) years
(One Hundred Eighty (180) months), with each installment to be paid on the first
day of each month, beginning with the month following the month in which the
Executive Retires or upon such later date as may be mutually agreed upon by the
Executive and the Employer in advance of said Retirement date. At the
Employer's sole and absolute discretion, the Employer may increase the Annual
Benefit as and when the Employer determines the same to be appropriate in order
to reflect a substantial change in the cost of living. Notwithstanding anything
contained herein to the contrary, the Employer shall have no obligation
hereunder to make any such cost-of-living adjustment.
3.2. PAYMENTS IN THE EVENT OF DEATH AFTER RETIREMENT. The
Employer agrees that if the Executive Retires, but shall die before receiving
all of the One Hundred Eighty (180) monthly payments to which he is entitled
hereunder, the Employer 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, then the remaining amounts due to the
Executive under the term of this Agreement shall be paid to the Executive's
Surviving Spouse. If the Executive leaves no Surviving Spouse, the remaining
amounts due to the Executive under the terms of this Agreement shall be paid to
the duly qualified personal representative, executor or administrator of the
Executive's estate.
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4. PAYMENTS IN THE EVENT DEATH OR DISABILITY OCCURS PRIOR TO RETIREMENT.
4.1. PAYMENTS IN THE EVENT OF DEATH PRIOR TO RETIREMENT. In
the event the Executive should die while actively employed by the Employer at
any time after the Effective Date of this Agreement, but prior to attaining
sixty-two (62) years of age or if the Executive chooses to work after
attaining sixty-two (62) years of age, but dies before Retirement, the
Employer agrees to pay the Annual Benefit to the Executive's designated
beneficiary, in equal monthly installments, for a period of fifteen (15)
years (One Hundred Eighty (180) months). If a valid Beneficiary Designation
is not in effect, then the remaining amounts due to the Executive under the
term of this Agreement shall be paid to the Executive's Surviving Spouse. If
the Executive leaves no Surviving Spouse, the remaining amounts due to the
Executive under the terms of this Agreement shall be paid to the duly
qualified personal representative, executor or administrator of the
Executive's estate. Each installment shall be paid on the first day of each
month, beginning with the month following the month in which the Executive's
death occurs.
4.2. PAYMENTS IN THE EVENT OF DISABILITY PRIOR TO RETIREMENT. In
the event the Executive becomes Disabled while actively employed by the Employer
at any time after the date of this Agreement but prior to Retirement, the
Executive shall be entitled to be paid the Annual Benefit, as defined above, in
equal monthly installments, for a period of fifteen (15) years (One Hundred
Eighty (180) months), with each installment to be paid on the first day of each
month, beginning with the month following the earlier of (1) the month in which
the Executive attains sixty-two (62) years of age; or (2) the date upon which
the Executive is no longer entitled to receive Disability benefits under the
Executive's principal Disability insurance policy and is, at such time, unable
to return to and thereafter fulfil the responsibilities associated with the
employment position held with the Employer prior to becoming Disabled by reason
of such Disability continuing. Notwithstanding the foregoing, if the Executive
chooses to elect the Retirement payout option set forth in Paragraph 3 hereof,
the Executive may waive the payout provisions set forth in this subparagraph 4.2
and in lieu thereof receive the Annual Benefit which the Executive would be
entitled to receive under the terms of Paragraph 3.
5. PAYMENTS IN THE EVENT EMPLOYMENT IS TERMINATED PRIOR TO RETIREMENT.
As indicated in Paragraph 2 above, the Employer reserves the right to terminate
the Executive's employment, with or without cause but subject to any written
employment agreement which may then exist, at any time prior to the Executive's
Retirement. In the event that the employment of the Executive shall be
terminated, other than by reason of Disability or death, prior to the
Executive's attaining sixty-two (62) years of age, then this Agreement shall
terminate upon the date of such termination of employment; provided, however,
that the Executive shall be entitled to the following benefits as may be
applicable depending upon the circumstances surrounding the Executive's
termination:
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5.1. TERMINATION WITHOUT CAUSE. If the Executive's employment is
terminated by the Employer without cause, the Executive shall be entitled to be
paid the Annual Benefit, as defined above, in equal monthly installments for a
period of fifteen (15) years (One Hundred Eighty (180) months), with each
installment to be paid on the first day of each month, beginning with the month
following the month in which Executive is terminated without cause or upon such
later date as may be mutually agreed upon by the Executive and the Employer in
advance of the effective date of the Executive's termination.
5.2. VOLUNTARY TERMINATION BY THE EXECUTIVE. It is acknowledged
and agreed by the Executive that the purpose of this Agreement is to assure the
Executive's continued employment with the Employer and that if the Executive
voluntarily terminates his employment with the Employer (other than by reason of
death, Disability or Retirement), then the Executive shall have willingly
forfeited any and all rights and benefits he may have under the terms of this
Agreement and that, furthermore, no amounts shall be due or paid to the
Executive by the Employer pursuant to the terms of this Agreement.
5.3. TERMINATION FOR CAUSE. The Executive agrees that if his
employment with the Employer is terminated "for cause," as defined in
subparagraph 1.13 of this Agreement, he shall forfeit any and all rights and
benefits he may have under the terms of this Agreement and shall have no right
to be paid any of the amounts which would otherwise be due or paid to the
Executive by the Employer pursuant to the terms of this Agreement.
5.4. TERMINATION BY THE EMPLOYER ON ACCOUNT OF OR AFTER A CHANGE
IN CONTROL. In the event: (i) the Executive's employment with the Employer is
terminated by the Employer in conjunction with, or by reason of, a "change in
control" (as defined in subparagraph 1.5 above); or (ii) by reason of the
Employer's actions any adverse and material change occurs in the scope of the
Executive's position, responsibilities, duties, salary, benefits, or location of
employment after a "change in control" (as defined in subparagraph 1.5) occurs;
or (iii) the Employer causes an event to occur which reasonably constitutes or
results in a demotion, a significant diminution of responsibilities or
authority, or a constructive termination (by forcing a resignation or otherwise)
of the Executive's employment after a "change in control" (as defined in
subparagraph 1.5) occurs, then the Executive shall be entitled to be paid the
Annual Benefit, as defined above, in equal monthly installments for a period of
fifteen (15) years (One Hundred Eighty (180) months), with each installment to
be paid on the first day of each month, beginning with the month following the
month in which the Executive is terminated or the action referred to above
occurs, whichever is earlier.
6. ADDITIONAL LIMITATIONS ON THE AMOUNT OF THE ANNUAL BENEFIT. The
Executive acknowledges and agrees that the parties have entered into this
Agreement based upon the certain financial and tax accounting assumptions.
Accordingly, with full knowledge of the potential consequences the Executive
agrees that, notwithstanding anything contained herein to the contrary: (i) the
amount of the Annual Benefit shall be limited to that amount of the Annual
Benefit (determined without regard to this Paragraph 6) which will be deductible
by the Employer under the Code in the year in which payment is to be made to the
Executive; (ii) the
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Annual Benefit amount shall be deemed to be the last payment made to the
Executive and the first for which an income tax deduction, if any, has been
disallowed; and (iii) any compensatory amounts for which a deduction is
denied to the Employer shall, at the Employer's election, serve to first
reduce the Employer's obligation to make the monthly Annual Benefit payments
otherwise due and payable to the Executive under the terms of this Agreement.
The Executive recognizes that, in this regard, limitations on deductibility
may be imposed under, but not limited to, Code Section 280G. Consistent with
the foregoing, and in the event that any payment or benefit received or to be
received by the Executive, whether payable pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Employer
(together with the Annual Benefit, the "Total Payments"), will not be
deductible (in whole or in part) as a result of Code Section 280G, the Annual
Benefit shall be reduced until no portion of the Total Payments is
nondeductible as a result of Section 280G of the Code (or the Annual Benefit
is reduced to zero (0)). For purposes of this limitation:
(a) No portion of the Total Payments, the receipt or enjoyment
of which the Executive shall have effectively waived in writing prior to the
date of payment of any future Annual Benefit payments, shall be taken into
account;
(b) No portion of the Total Payments shall be taken into
account, which in the opinion of the tax counsel selected by the Employer and
acceptable to the Executive, does not constitute a "parachute payment" within
the meaning of Section 280G of the Code;
(c) Future Annual Benefit payments shall be reduced only to the
extent necessary so that the Total Payments (other than those referred to in
clauses (a) or (b) above in their entirety) constitute reasonable compensation
for services actually rendered within the meaning of Section 280G of the Code,
in the opinion of tax counsel referred to in clause (b) above; and
(d) The value of any non-cash benefit or any deferred payment or
benefit included in the Total Payments shall be determined by the Employer's
independent auditors in accordance with the principles of Section 280G of the
Code.
7. RIGHT TO DETERMINE FUNDING METHODS. The Employer reserves the right
to determine, in its sole and absolute discretion, whether, to what extent and
by what method, if any, to provide for the payment of the amounts which may be
payable to the Executive, the Executive's spouse or the Executive's
beneficiaries under the terms of this Agreement. In the event that the Employer
elects to fund this Agreement, in whole or in part, through the use of life
insurance or annuities, or both, the Employer shall determine the ownership and
beneficial interests of any such policy of life insurance or annuity. The
Employer further reserves the right, in its sole and absolute discretion, to
terminate any such policy, and any other device used to fund its obligations
under this Agreement, at any time, in whole or in part. Consistent with
Paragraph 9 below, neither the Executive, the Executive's spouse nor the
Executive's beneficiaries shall have any right, title or interest in or to any
funding source or amount utilized by the Employer pursuant to this Agreement,
and any such funding source or amount shall not constitute security for the
performance of the Employer's obligations pursuant to this
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Agreement. In connection with the foregoing, the Executive agrees to execute
such documents and undergo such medical examinations or tests which the
Employer may request and which may be reasonably necessary to facilitate any
funding for this Agreement including, without limitation, the Employer's
acquisition of any policy of insurance or annuity. Furthermore, a refusal by
the Executive to consent to, participate in and undergo any such medical
examinations or tests shall result in the immediate termination of this
Agreement and the immediate forfeiture by the Executive, the Executive's
spouse and the Executive's beneficiaries of any and all rights to payment
hereunder.
8. CLAIMS PROCEDURE. The Employer shall, but only to the extent
necessary to comply with ERISA, be designated as the named fiduciary under this
Agreement and shall have authority to control and manage the operation and
administration of this Agreement. Consistent therewith, the Employer shall make
all determinations as to the rights to benefits under this Agreement. Any
decision by the Employer denying a claim by the Executive, the Executive's
spouse, or the Executive's beneficiary for benefits under this Agreement shall
be stated in writing and delivered or mailed, via registered or certified mail,
to the Executive, the Executive's spouse or the Executive's beneficiary, as the
case may be. Such decision shall set forth the specific reasons for the denial
of a claim. In addition, the Employer shall provide the Executive, the
Executive's spouse or the Executive's beneficiary with a reasonable opportunity
for a full and fair review of the decision denying such claim.
9. STATUS AS AN UNSECURED GENERAL CREDITOR. Notwithstanding anything
contained herein to the contrary: (i) neither the Executive, the Executive's
spouse nor the Executive's beneficiary shall have any legal or equitable rights,
interests or claims in or to any specific property or assets of the Employer;
(ii) none of the Employer's assets shall be held in or under any trust for the
benefit of the Executive, the Executive's spouse or the Executive's
beneficiaries or held in any way as security for the fulfillment of the
obligations of the Employer under this Agreement; (iii) all of the Employer's
assets shall be and remain the general unpledged and unrestricted assets of the
Employer; (iv) the Employer's obligation under this Agreement shall be that of
an unfunded and unsecured promise by the Employer to pay money in the future;
and (v) the Executive, the Executive's spouse and the Executive's beneficiaries
shall be unsecured general creditors with respect to any benefits which may be
payable under the terms of this Agreement.
10. MISCELLANEOUS.
10.1. OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL. The
Executive acknowledges that he has been afforded the opportunity to consult with
independent counsel of his choosing regarding both the benefits granted to him
under the terms of this Agreement and the terms and conditions which may affect
the Executive's right to these benefits. The Executive further acknowledges
that he has read, understands and consents to all of the terms and conditions of
this Agreement, and that he enters into this Agreement with a full understanding
of its terms and conditions.
10.2. ARBITRATION OF DISPUTES. All claims, disputes and
other matters
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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 the Employer 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"), presently located at Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000. In the event JAMS is unable or unwilling to
conduct the arbitration provided for under the terms of this Paragraph, 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"), presently located at 000 Xxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, shall conduct the binding arbitration referred
to in this Paragraph. 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. The arbitration shall be subject to such rules of procedure
used or established by JAMS, or if there are none, the rules of procedure
used or established by AAA. 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 Red Bluff, California, unless
otherwise agreed to by the parties.
10.3. ATTORNEYS' FEES. In the event of any arbitration or
litigation concerning any controversy, claim or dispute between the parties
hereto, arising out of or relating to this Agreement or the breach hereof, or
the interpretation hereof, the prevailing party shall be entitled to recover
from the losing party reasonable expenses, attorneys' fees and costs incurred in
connection therewith or in the enforcement or collection of any judgment or
award rendered therein. The "prevailing party" means the party determined by
the arbitrator(s) or court, as the case may be, to have most nearly prevailed,
even if such party did not prevail in all matters, not necessarily the one in
whose favor a judgment is rendered.
10.4. NOTICE. Any notice required or permitted of either the
Executive or the Employer under this Agreement shall be deemed to have been duly
given, if by personal delivery, upon the date received by the party or its
authorized representative; if by facsimile, upon transmission to a telephone
number previously provided by the party to whom the facsimile is transmitted as
reflected in the records of the party transmitting the facsimile and upon
reasonable confirmation of such transmission; and if by mail, on the third day
after mailing via U.S. first class mail, registered or certified, postage
prepaid and return receipt requested, and addressed to the party at the address
given below for the receipt of notices, or such changed address as may be
requested in writing by a party.
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If to the Employer: Tehama Bank
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Chairman of the Board
If to the Executive: Xxxxx Xxxxxxxxxxx
0000 Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxx 00000
10.5. ASSIGNMENT. Neither the Executive, the Executive's
spouse, nor any other beneficiary under this Agreement shall have any power
or right to transfer, assign, anticipate, hypothecate, modify or otherwise
encumber any part or all of the amounts payable hereunder, nor, prior to
payment in accordance with the terms of this Agreement, shall any portion of
such amounts be: (i) subject to seizure by any creditor of any such
beneficiary, by a proceeding at law or in equity, for the payment of any
debts, judgments, alimony or separate maintenance obligations which may be
owed by the Executive, the Executive's spouse, or any designated beneficiary;
or (ii) transferable by operation of law in the event of bankruptcy,
insolvency or otherwise. Any such attempted assignment or transfer shall be
void and shall terminate this Agreement, and the Employer shall thereupon
have no further liability hereunder.
10.6. BINDING EFFECT/MERGER OR REORGANIZATION. This Agreement
shall be binding upon and inure to the benefit of the Executive and the
Employer and, as applicable, their respective heirs, beneficiaries, legal
representatives, agents, successors and assigns. Accordingly, the Employer
shall not merge or consolidate into or with another corporation, or
reorganize or sell substantially all of its assets to another corporation,
firm or person, unless and until such succeeding or continuing corporation,
firm or person agrees to assume and discharge the obligations of the Employer
under this Agreement. Upon the occurrence of such event, the term "Employer"
as used in this Agreement shall be deemed to refer to such surviving or
successor firm, person, entity or corporation.
10.7. NONWAIVER. The failure of either party to enforce at any
time or for any period of time any one or more of the terms or conditions of
this Agreement shall not be a waiver of such term(s) or condition(s) or of
that party's right thereafter to enforce each and every term and condition of
this Agreement.
10.8. PARTIAL INVALIDITY. If any term, provision, covenant, or
condition of this Agreement is determined by an arbitrator or a court, as the
case may be, to be invalid, void, or unenforceable, such determination shall
not render any other term, provision, covenant or condition invalid, void or
unenforceable, and the Agreement shall remain in full force and effect
notwithstanding such partial invalidity.
10.9. ENTIRE AGREEMENT. This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties with respect
to the subject matter of
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this Agreement and contains all of the covenants and agreements between the
parties with respect thereto. Each party to this Agreement acknowledges that
no other representations, inducements, promises, or agreements, oral or
otherwise, have been made by any party, or anyone acting on behalf of any
party, which are not set forth herein, and that no other agreement,
statement, or promise not contained in this Agreement shall be valid or
binding on either party.
10.10. MODIFICATIONS. Any modification of this Agreement shall
be effective only if it is in writing and signed by each party or such
party's authorized representative.
10.11. PARAGRAPH HEADINGS. The paragraph headings used in this
Agreement are included solely for the convenience of the parties and shall
not affect or be used in connection with the interpretation of this Agreement.
10.12. NO STRICT CONSTRUCTION. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be
applied against any person.
10.13. GOVERNING LAW. The laws of the State of California,
other than those laws denominated choice of law rules, and, where applicable,
the rules and regulations of (i) the California Department of Financial
Institutions; (ii) the Board of Governors of the Federal Reserve System;
(iii) the Federal Deposit Insurance Corporation; or (iv) any other regulatory
agency or governmental authority having jurisdiction over the Employer, shall
govern the validity, interpretation, construction and effect of this
Agreement.
IN WITNESS WHEREOF, the Employer and the Executive have executed this
Agreement on the date first above-written in the City of Red Bluff, Tehama
County, California.
THE EMPLOYER: THE EXECUTIVE:
TEHAMA BANK,
a California banking corporation
By:
----------------------------- -------------------------------
Xxxx X. Xxxxxxxx, Chairman Xxxxx Xxxxxxxxxxx
TEHAMA BANCORP,
a California corporation
By:
----------------------------- -------------------------------
Xxxx X. Xxxxxxxx, Chairman
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SCHEDULE A
NUMBER OF COMPLETE
YEARS WHICH HAVE ELAPSED APPLICABLE PERCENTAGE
------------------------ ---------------------
1....................................... 10.00%
2....................................... 20.00%
3....................................... 30.00%
4....................................... 40.00%
5....................................... 50.00%
6....................................... 60.00%
7....................................... 70.00%
8....................................... 80.00%
9....................................... 90.00%
10...................................... 100.00%
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SCHEDULE B
BENEFICIARY DESIGNATION
To the Administrator of the Tehama Bank Executive Salary Continuation
Agreement:
Pursuant to the Provisions of my Executive Salary Continuation Agreement
with Tehama Bank, permitting the designation of a beneficiary or beneficiaries
by a participant, I hereby designate the following persons and entities as
primary and secondary beneficiaries of any benefit under said Agreement payable
by reason of my death:
PRIMARY BENEFICIARY:
______________________ _____________________ __________________________
Name Address Relationship
SECONDARY (CONTINGENT) BENEFICIARY:
______________________ _____________________ __________________________
Name Address Relationship
THE RIGHT TO REVOKE OR CHANGE ANY BENEFICIARY DESIGNATION IS HEREBY RESERVED.
ALL PRIOR DESIGNATIONS, IF ANY, OF PRIMARY BENEFICIARIES AND SECONDARY
BENEFICIARIES ARE HEREBY REVOKED.
The Administrator shall pay all sums payable under the Agreement by reason of my
death to the Primary Beneficiary, if he or she survives me, and if no Primary
Beneficiary shall survive me, then to the Secondary Beneficiary, and if no named
beneficiary survives me, then the Administrator shall pay all amounts in
accordance with the terms of my Executive Salary Continuation Agreement. In the
event that a named beneficiary survives me and dies prior to receiving the
entire benefit payable under said Agreement, then and in that event, the
remaining unpaid benefit payable according to the terms of my Executive Salary
Continuation Agreement shall be payable to the personal representatives of the
estate of said beneficiary who survived me but died prior to receiving the total
benefit provided by my Executive Salary Continuation Agreement.
THE EXECUTIVE:
Dated: ____________,1998 ___________________________________
Xxxxx Xxxxxxxxxxx
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CONSENT OF THE EXECUTIVE'S SPOUSE
TO THE ABOVE BENEFICIARY DESIGNATION:
I, ____________________________, being the spouse of Xxxxx Xxxxxxxxxxx,
after being afforded the opportunity to consult with independent counsel of my
choosing, do hereby acknowledge that I have read, agree and consent to the
foregoing Beneficiary Designation which relates to the Executive Salary
Continuation Agreement entered into by my spouse on ______________, 1998. I
understand that the above Beneficiary Designation may affect certain rights
which I may have in the benefits provided for under the terms of the Executive
Salary Continuation Agreement and in which I may have a marital property
interest.
Dated: _______________________, 1998
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