EXHIBIT 10.16
AMENDED AND RESTATED
EXECUTIVE SUPPLEMENTAL COMPENSATION AGREEMENT
This Agreement is made and entered into effective as of May 1, 2004, by
and between The Vintage Bank, a state-chartered commercial bank and wholly-owned
subsidiary of North Bay Bancorp (the "Holding Company"), with its principal
offices located in the City of Napa, California ("the Bank"), and,
___________________________, an individual residing in the State of California
("the Executive").
R E C I T A L S
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WHEREAS, the Executive is an employee of the Bank, serving since
September 3, 1988; and has extensive and valuable experience and knowledge of
the affairs of the Bank and the banking industry
WHEREAS, in 2001, the Bank established a compensation benefit program
as a fringe benefit for executive officers of the Bank in order to attract and
retain individuals with extensive and valuable experience in the banking
industry;
WHEREAS, the Executive was selected as a participant in said program
and the Bank and Executive entered into an Executive Supplement Compensation
Agreement dated September 21, 2001 (the "Prior Agreement"); and
WHEREAS, the Executive and the Bank wish to amend and restate the Prior
Agreement in its entirety and substitute this Agreement in place and instead of
the Prior Agreement which shall no longer have any force or effect;
NOW, THEREFORE, in consideration of the services to be performed by the
Executive in the future, as well as the mutual promises and covenants contained
herein, the Executive and the Bank agree as follows:
A G R E E M E N T
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1. Terms and Definitions.
1.1 Affiliate. The term "Affiliate" shall mean a corporation
or entity of any type directly or indirectly controlling or controlled by, or
under direct or indirect common control with, the Bank, within the meaning of
Rule 144 under the Securities Act of 1933, as amended.
1.2 Administrator. The Holding Company shall be the
"Administrator" and, solely for the purposes of ERISA as defined in subparagraph
1.8 below, the "fiduciary" of this Agreement where a fiduciary is required by
ERISA.
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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 years which shall have elapsed from the date of this
Agreement and ending on the date Executive Retires, becomes Disabled,
voluntarily terminates his employment, or his employment is otherwise terminated
pursuant to this Agreement, as applicable. 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 one hundred
percent (100%) in the event the Executive's employment is terminated pursuant to
subparagraph 5.4 upon the occurrence of a "Change in Control" as defined in
subparagraph 1.4 below or the Executive's Disability (as defined in subparagraph
1.6 below). The parties acknowledge that as of the date of this Agreement
Executive's Applicable Percentage is 40%.
1.4 Change in Control. "Change in Control" means in any
transaction or related series of transactions: (a) the acquisition (other than
solely from the Bank or Holding Company), by any individual, entity or group
(within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act), other than the Bank or any subsidiary, Affiliate or employee benefit plan
of the Company, of beneficial ownership (within the meaning of Rule 13(d)(3)
promulgated under the Exchange Act) of more than 30% of the combined voting
power of the then outstanding securities of the Bank or Holding Company entitled
to vote generally in the election of directors (the "Voting Securities"); (b) a
reorganization, merger, consolidation, share exchange or recapitalization of the
Bank or Holding Company (a "Business Combination"), other than a Business
Combination in which more than 50% of the combined voting power of the
outstanding voting securities of the surviving or resulting entity immediately
following the Business Combination is held by the persons who, immediately prior
to the Business Combination, were the holders of the Voting Securities; or (c) a
complete liquidation or dissolution of the Bank or Holding Company, or a sale of
all or substantially all of the Bank or Holding Company's assets.
1.5 The Code. The "Code" shall mean the Internal Revenue Code
of 1986, as amended (the "Code").
1.6 Disability/Disabled. The term "Disability" or Disabled"
shall have the same meaning given such term in any disability policy maintained
on Executive by the Bank or Holding Company or, in the event no such policy is
maintained by the Bank or Holding Company, such terms shall mean the Executive
shall have been unable to perform the essential functions of his position, with
or without reasonable accommodation, on a full-time basis for a period of sixty
(60) consecutive days, or for a total of ninety (90) days in any twelve-month
period.
1.7 Effective Date. The term "Effective Date" shall mean the
date first written above.
1.8 ERISA. The term "ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as amended.
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1.9 Executive Benefit. The term "Executive Benefit" or
"Retirement Benefit Payments" shall mean the benefits determined pursuant to
subparagraphs 3.1 or 3.2 and in accordance with Schedule "B", and reduced or
adjusted to the extent: (i) required under the other provisions of this
Agreement, including, but not limited to, Paragraphs 5, 7, and 8 hereof; (ii)
required by reason of the lawful order of any regulatory agency or body having
jurisdiction over the Bank or the Holding Company; or (iii) required in order
for the Bank or the Holding Company to properly comply with any and all
applicable state and federal laws, including, but not limited to, income,
employment and disability income tax laws (e.g., FICA, FUTA, SDI).
1.10 Normal Retirement Date. The term "Normal Retirement Date"
shall mean the Retirement, as defined below, of the Executive upon attainment of
age sixty-five (65) or in the event of a Change in Control, as defined above,
attainment of age sixty-two (62).
1.11 Early Retirement Date. The term "Early Retirement Date"
shall mean Retirement, as defined below, of the Executive after the attainment
of age sixty-two (62), provided the Applicable Percentage equals one-hundred
percent (100%).
1.12 Plan Year. The term "Plan Year" shall mean the twelve
(12) month period beginning October 1 of each year and ending September 30 of
the following year.
1.13 Retirement. The term "Retirement" or "Retires" shall
refer to the date which the Executive acknowledges in writing to Bank to be the
last day the Executive will provide any significant personal services, whether
as an employee or independent consultant or contractor, to Bank. For purposes of
this Agreement, the phrase "significant personal services" shall mean more than
ten (10) hours of personal services rendered to the Bank or any Affiliate
thereof in any thirty (30) day period.
1.14 Termination for Cause. The term "Terminated for Cause,"
shall mean the termination of the Executive's employment by reason of any of the
following: (i) the Executive commits fraud, theft or embezzlement against the
Bank, or any subsidiary or Affiliate thereof; (ii) the Executive commits a
felony or a crime involving moral turpitude; (iii) the Executive compromises
trade secrets or other proprietary information of the Bank, or any subsidiary or
Affiliate thereof; (iv) the Executive breaches any non-solicitation agreement
with the Bank, or any subsidiary or Affiliate thereof; (v) the Executive
breaches any of the material terms of any employment agreement entered into with
the Bank or Holding Company and, if given the right in any such employment
agreement, fails to cure said breach in accordance therewith; (vi) the Executive
breaches any of the material terms of this Agreement; (vii) the Executive
engages in any grossly negligent act or willful misconduct that causes, or could
be reasonably expected to cause, harm to the business, operations or reputation
of the Bank, or any subsidiary or Affiliate thereof; or (viii) the Bank, or any
subsidiary or Affiliate thereof, is ordered to terminate any employment
agreement by any governmental regulatory agency with supervisory authority over
the Bank, or any subsidiary or Affiliate thereof.
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2. Scope, Purpose and Effect.
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 Bank and Holding Company, this Agreement shall not be deemed to
constitute a contract of employment between the Executive and the Bank or
Holding Company nor shall any provision of this Agreement restrict or expand the
right of the Bank to terminate the Executive's employment with or without cause.
This Agreement shall have no impact or effect upon any separate written
employment agreement which the Executive may have with the Bank or Holding
Company, 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 Bank's obligations hereunder)
shall stand separate and apart and shall have no effect on or 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 Bank 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.
2.3 Prohibited Payments. Notwithstanding anything in this
Agreement to the contrary (and in particular in Section 1.9 or section 3
hereof), if any payment made under this Agreement is a "golden parachute
payment" as defined in Section 28(k) of the Federal Deposit Insurance Act (12
U.S.C. section 1828(k) and Part 359 of the Rules and Regulations of the Federal
Deposit Insurance Corporation (collectively, the "FDIC Rules") or is otherwise
prohibited, restricted or subject to the prior approval of a Bank Regulator (as
defined in section 1.13 (d) herein), no payment shall be made hereunder without
complying with said FDIC Rules.
3. Executive Benefits Payments.
3.1 Payments Commence Upon Early Retirement Date. In the
event the Executive elects to Retire on a date which constitutes an Early
Retirement Date, as defined in subparagraph 1.11 above, the Executive shall be
entitled to be paid the Applicable Percentage of the Executive Benefits as
described in and adjusted pursuant to Schedule B, in substantially equal monthly
installments on the first day of each month, beginning with the month following
the month in which the Early Retirement Date occurs or upon such later date as
may be mutually agreed upon by the Executive and the Bank in advance of said
Early Retirement Date.
3.2 Payments Commence Upon Normal Retirement Date. In the
event Executive elects to Retire on or after his Normal Retirement Date, the
Executive shall be entitled to be paid the Applicable Percentage of the
Executive Benefits, as defined in Schedule B, in substantially equal monthly
installments 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 Bank in advance of said Retirement
date, payable until the Executive's death.
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4. Payments in the Event Disability Occurs Prior to Retirement. In the
event the Executive becomes Disabled while actively employed by the Bank at any
time after the Effective Date of this Agreement but prior to Retirement, the
Executive shall be entitled to be paid the Applicable Percentage of the
Executive Benefits, as defined in Schedule B, in substantially equal monthly
installments on the first day of each month, beginning with the month following
the month in which the Executive becomes Disabled, payable until the Executive's
death.
5. Payments in the Event Executive's Employment is Terminated Prior to
Retirement. As indicated in subparagraph 2.1 above, the Bank 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 by Bank or Executive, other than by reason of Disability or
Retirement, 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:
5.1 Termination Without Cause. If the Executive's employment
is terminated by the Bank without cause, and such termination is not subject to
the provisions of subparagraph 5.4 below, the Executive shall be entitled to be
paid the Applicable Percentage of the Executive Benefits, as defined in Schedule
B, in substantially equal monthly installments on the first day of each month,
beginning after the Executive attains age sixty-two (62) years of age with the
month requested in writing by the Executive and delivered to the Bank or its
successor thirty (30) days prior to the commencement of installment payments;
provided, however, that in the event the Executive does not request a
commencement date as specified, such installments shall be paid on the first day
of each month, beginning with the month following the month in which the
Executive attains sixty-five (65) years of age.
5.2 Termination for Cause. The Executive agrees that if his
employment with the Bank is terminated "for cause," as defined in subparagraph
1.14 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 Bank
pursuant to the terms of this Agreement.
[Formerly subparagraph 5.3.]
5.3 Voluntary Termination by the Executive.
(a) Resignation Prior to 100% Applicable Percentage; 5.4 Applicable. If
the Executive's employment is terminated by voluntary resignation prior to the
date specified in Schedule A which corresponds to an Applicable Percentage equal
to one hundred percent (100%) and such resignation is subject to the provisions
of subparagraph 5.4 below, the Executive shall be entitled to be paid the
Applicable Percentage of the Executive Benefits, as defined in Schedule B, in
substantially equal monthly installments on the first day of each month,
beginning after the Executive attains age sixty-two (62) years of age with the
month requested in writing by the Executive and delivered to the Bank or its
successor thirty (30) days prior to the commencement of installment payments;
provided, however, that in the event the Executive does not request a
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commencement date as specified, such installments shall be paid on the first day
of each month, beginning with the month following the month in which the
Executive attains sixty-five (65) years of age. Executive Benefits payable
pursuant to this subparagraph 5.3(a) shall not be subject to the risk of
forefeiture set forth in paragraph 6 below.
(b) Resignation Prior to 100% Applicable Percentage; 5.4 Not Applicable.
If the Executive's employment is terminated by voluntary resignation prior to
the date specified in Schedule A which corresponds to an Applicable Percentage
equal to one hundred percent (100%) and such resignation is not subject to the
provisions of subparagraph 5.4 below, the Executive 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 Bank pursuant to the terms of this Agreement.
(c) Resignation After 100% Applicable Percentage; 5.4 Applicable. If the
Executive's employment is terminated by voluntary resignation after that date
specified in Schedule A which corresponds to an Applicable Percentage equal to
one hundred percent (100%) and such resignation is subject to the provisions of
subparagraph 5.4 below, the Executive shall be entitled to be paid the
Applicable Percentage of the Executive Benefits, as defined in Schedule B, in
substantially equal monthly installments on the first day of each month,
beginning with the month following the month in which the Executive attains
sixty-two (62) years of age, or any month thereafter, as requested in writing by
the Executive and delivered to the Bank or its successor thirty (30) days prior
to the commencement of installment payments; provided, however, that in the
event the Executive does not request a commencement date as specified, such
installments shall be paid on the first day of each month, beginning with the
month following the month in which the Executive attains age sixty-five (65)
years of age. Executive Benefits payable pursuant to this subparagraph 5.3(c)
shall not be subject the risk of forfeiture set forth in paragraph 6 below.
(d) Resignation After 100% Applicable Percentage; 5.4 Not Applicable.
Subject to the risk of forfeiture set forth in paragraph 6 below, if the
Executive's employment is terminated by voluntary resignation after that date
specified in Schedule A which corresponds to an Applicable Percentage equal to
one hundred percent (100%), and such resignation is not subject to the
provisions of subparagraph 5.4 below, the Executive shall be entitled to be paid
the Applicable Percentage of the Executive Benefits, as defined in Schedule B,
in substantially equal monthly installments on the first day of each month,
beginning with the month following the month in which the Executive attains
sixty-two (62) years of age, or any month thereafter, as requested in writing by
the Executive and delivered to the Bank or its successor thirty (30) days prior
to the commencement of installment payments; provided, however, that in the
event the Executive does not request a commencement date as specified, such
installments shall be paid on the first day of each month, beginning with the
month following the month in which the Executive attains sixty-five (65) years
of age.
5.4 Termination on Account of or After a Change in Control.
If within one year of the effective date of a Change in Control (as defined
above) (i) Executive's employment is terminated by the Bank or Holding Company,
its assignee or successor, without Cause or (ii) Executive terminates her
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employment by the Bank or Holding Company on account of (y) Executive's
position, responsibilities or working conditions being substantially diminished
or (z) a material reduction in the Executive's compensation or benefits, then
the Executive shall be entitled to be paid the Applicable Percentage of the
Executive Benefits, as defined in Schedule B, in substantially equal monthly
installments on the first day of each month, beginning with the month following
the month in which the Executive attains sixty-two (62) years of age or any
month thereafter, as requested in writing by the Executive and delivered to the
Bank or its successor thirty (30) days prior to the commencement of installment
payments; provided, however, that in the event the Executive does not request a
commencement date as specified, such installments shall be paid on the first day
of each month, beginning with the month following the month in which the
Executive attains sixty-five (65) years of age. The installments shall be
payable until the Executive's death.
6. Risk of Forfeiture. Executive acknowledges that in the course of his
employment he has become privy to confidential information of the Bank including
customer deposit, loan, sales and marketing information, customer account
records, proprietary processing techniques, information regarding vendors and
products, training and operations memoranda and similar information, personnel
records, pricing information, financial information, and trade secrets
concerning or relating to the business, accounts, customers and employees and
affairs of the Bank, or any subsidiary or affiliate thereof (the foregoing
constituting "Confidential Information"). On account of the foregoing and his
position of trust and confidence with the Bank, Executive agrees that in the
event he voluntarily terminates his employment and such termination is subject
to subparagraph 5(d) above, he shall forfeit any and all rights and benefits,
including Executive Benefit and Retirement Benefit Payments, 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 Executive by the Bank pursuant
to the terms of this Agreement if he violates any of the following provisions
prior to attaining his Normal Retirement Date:
(a) Executive shall not utilize Confidential Information, either
directly or indirectly, to call on, solicit, or take away as a
client, customer or prospective client or customer, or attempt
to call on, solicit or take away as a client, customer or
prospective client or customer, any person or entity that was
a client, customer or prospective client or customer of the
Bank, or any subsidiary or affiliate thereof. For purposes of
this Agreement "prospective client or customer" shall include
any person or entity with whom the Bank has had contact for
the purpose of soliciting business within six months prior to
Executive's voluntary termination of employment or whom the
Bank intended to contact for the purpose of soliciting
business within six months after termination of employment, of
which contact or intended contact Executive had knowledge
while employed by the Bank. Executive acknowledges that it
would be extremely difficult or impractical to determine
whether Executive used Confidential Information in connection
with the activity prohibited by this provision and that it is
reasonable to presume, based upon Executive's period of
service to the Bank and the Holding Company, that Executive
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used Confidential Information in connection with any violation
of this provision.
(b) Executive shall not, either directly or indirectly, on his own
behalf or in the service or on behalf of others, solicit,
divert , attempt to solicit, divert or induce or attempt to
induce to discontinue employment with the Bank, or any
subsidiary or affiliate thereof, any person employed by the
Bank, or any subsidiary or affiliate thereof, whether or not
such employee is a full time employee or a temporary employee
of the Bank, or any subsidiary or affiliate thereof and
whether or not such employment is for a determined period or
is at will.
(c) Executive shall not, either directly or indirectly, use,
disclose or make available Confidential Information to any
person or entity, nor shall he use, disclose, make available
or cause to be used, disclosed or made available, or permit or
allow, either on his own behalf or on behalf of others, any
use or disclosure of such Confidential Information.
Executive acknowledges and agrees that (i) a breach by Executive of
any of the foregoing covenants will result in the Bank incurring
certain costs and damages in an amount that would be extremely
difficult or impractical to ascertain, (ii) the forfeiture of
Executive's rights and benefits under this Agreement bear a
reasonable relationship to the damages which the Bank may suffer by
reason of Executive's breach, and (iii) the forfeiture of
Executive's rights and benefits under this Agreement is reasonable
and equitable considering that absent forfeiture of such rights and
benefits the Bank will be in the position of paying benefits to
Executive while suffering damages on account of Executive's breach.
7. Right To Determine Funding Methods. The Bank 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, under the terms of this Agreement. In the event that
the Bank elects to fund this Agreement, in whole or in part, through the use of
life insurance or annuities, or both, the Bank shall determine the ownership and
beneficial interests of any such policy of life insurance or annuity. The Bank
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,
the Executive shall have no right, title or interest in or to any funding source
or amount utilized by the Bank pursuant to this Agreement, and any such funding
source or amount shall not constitute security for the performance of the Bank's
obligations pursuant to this Agreement. In connection with the foregoing, the
Executive agrees to execute such documents and undergo such medical examinations
or tests which the Bank may request and which may be reasonably necessary to
facilitate any funding for this Agreement including, without limitation, the
Bank's acquisition of any policy of insurance or annuity.
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8. Claims Procedure. The Holding Company 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 Holding Company
shall make all determinations as to the rights to benefits under this Agreement.
Any decision by the Holding Company denying a claim by the Executive 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 beneficiaries, as the case may be. Such decision shall
set forth the specific reasons for the denial of a claim. In addition, the
Holding Company shall provide the Executive, or as applicable, the Executive's
spouse or beneficiaries, 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) the Executive shall have no legal or
equitable rights, interests or claims in or to any specific property or assets
of the Bank as a result of this Agreement; (ii) none of the Bank's assets shall
be held in or under any trust for the benefit of the Executive or held in any
way as security for the fulfillment of the obligations of the Bank under this
Agreement; (iii) all of the Bank's assets shall be and remain the general
unpledged and unrestricted assets of the Bank; (iv) the Bank's obligation under
this Agreement shall be that of an unfunded and unsecured promise by the Bank to
pay money in the future; and (v) the Executive shall be an unsecured general
creditor with respect to any benefits which may be payable under the terms of
this Agreement.
Notwithstanding subparagraphs (i) through (v) above, the Bank and the
Executive acknowledge and agree that, in the event of a Change in Control, upon
request of the Executive, or in the Bank's discretion if the Executive does not
so request and the Bank nonetheless deems it appropriate, the Bank shall
establish, not later than the effective date of the Change in Control, a Rabbi
Trust or multiple Rabbi Trusts (the "Trust" or "Trusts") upon such terms and
conditions as the Bank, in its sole discretion, deems appropriate and in
compliance with applicable provisions of the Code, in order to permit the Bank
to make contributions and/or transfer assets to the Trust or Trusts to discharge
its obligations pursuant to this Agreement. The principal of the Trust or Trusts
and any earnings thereon shall be held separate and apart from other funds of
the Bank to be used exclusively for discharge of the Bank's obligations pursuant
to this Agreement and shall continue to be subject to the claims of the Bank's
general creditors until paid to the Executive in such manner and at such times
as specified in this Agreement.
10. Miscellaneous.
10.1 Opportunity To Consult With Independent Advisors. The
Executive acknowledges that he has been afforded the opportunity to consult with
independent advisors of his choosing including, without limitation, accountants
or tax advisors and counsel regarding the benefits granted to him under the
terms of this Agreement and the (i) terms and conditions which may affect the
Executive's right to these benefits and (ii) personal tax effects of such
benefits including, without limitation, the effects of any federal or state
taxes, Section 280G of the Code, and any other taxes, costs, expenses or
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liabilities whatsoever related to such benefits, which in any of the foregoing
instances and notwithstanding any provision to the contrary in any separate
written employment agreement now in effect or hereinafter entered into between
Executive and the Bank or any Affiliate thereof, the Executive acknowledges and
agrees shall be the sole responsibility of the Executive notwithstanding any
other term or provision of this Agreement. The Executive further acknowledges
and agrees that the Bank shall have no liability whatsoever related to any such
personal tax effects or other personal costs, expenses, or liabilities
applicable to the Executive and further specifically waives any right for
himself, and his heirs, beneficiaries, legal representatives, agents, successor
and assign to claim or assert liability on the part of the Bank related to the
matters described above in this subparagraph 10.1. 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. Any dispute (whether based on contract,
tort, or statutory duty or prohibition) arising out of or in connection with
this Agreement shall be submitted to binding arbitration, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (as
modified by this Agreement) by one arbitrator, designated in accordance with
those rules. No one who has ever had any business, financial, family, or social
relationship with any party to this Agreement shall serve as an arbitrator
unless the related party informs the other party of the relationship and the
other party consents in writing to the use of that arbitrator.
The party demanding arbitration shall submit a written claim to the
other party, setting out the basis of the claim. A prearbitration hearing shall
be held within twenty (20) business days after the arbitrator's selection. The
arbitration shall be held within ninety (90) calendar days after the
prearbitration hearing. The arbitrator shall establish any deadlines to
accomplish this goal. The arbitration shall take place in Napa, California, at a
time and place selected by the arbitrator.
Each party shall be entitled to discovery of essential documents and
witnesses, as determined by the arbitrator. No less than thirty (30) calendar
days before the arbitration, a party may serve a document request calling for
any document that would be discoverable in a state civil proceeding. The served
with this request shall deliver the requested documents and any objections
within ten (10) calendar days. The arbitrator may resolve any dispute over the
exchange of documents. Each party may take no more than three (3) depositions,
unless additional depositions are allowed by the arbitrator for good cause. All
depositions must be completed as of fifteen (15) calendar days before the
arbitration hearing unless the parties otherwise agree. The arbitrator may
resolve any dispute over the depositions as they would be resolved in a state
civil proceeding. Any motion may be heard by the arbitrator on three (3) days
notice unless the parties otherwise agree. The arbitrator shall apply California
law.
The parties agree that all information supplied by any party shall be
deemed to be confidential information, and the arbitrator and other participants
in the dispute shall protect such information from disclosure.
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The arbitrator shall have the following powers:
(a) To issue subpoenas for the attendance of witnesses and
subpoenas duces tecum for the production of books, records,
documents, and other evidence;
(b) To order depositions to be used as evidence;
(c) Consistent with the discovery procedures enumerated above, to
enforce the rights, remedies, procedures, duties, liabilities,
and obligations of discovery as if the arbitration were a
civil action before a California superior court;
(d) To conduct a hearing on the arbitration issues and related
legal and discovery issues;
(e) To administer oaths to parties and witnesses;
(f) To award all damages and remedies which would be available in
a civil action before a California superior court.
(g) To award expenses and fees of arbitration as the arbitrator
deems proper; and
(h) To order such other relief as the arbitrator deems proper.
Within fifteen (15) calendar days after completion of the arbitration,
the arbitrator shall submit a tentative decision in writing specifying the
reasoning for the decision and any calculations necessary to explain the award.
Each party shall have fifteen (15) calendar days in which to submit written
comments to the tentative decision. Within ten (10) calendar days after the
deadline for written comments, the arbitrator shall announce the final award.
Any party may enter the final award as a judgment in any court of competent
jurisdiction.
The Bank shall pay the arbitrator's expenses and fees, all meeting room
charges, and any other expenses that would not have been incurred if the case
were litigated in the judicial forum having jurisdiction over it. Unless
otherwise ordered by the arbitrator, each party shall pay its own attorney fees,
witness fees and other expenses incurred by the party for his or its own
benefit. The arbitrator may award the prevailing party his or its expenses and
fees of arbitration, including reasonable attorney fees and costs, including
witness fees, in such proportion as the arbitrator decides.
10.3 Attorneys' Fees. In the event of any arbitration
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), as the
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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 Bank 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.
If to the Bank: The Vintage Bank
1500 Soscol Avenue
Napa, California 94558
Attn: President
With a copy to: North Bay Bancorp
1500 Soscol Avenue
Napa, California 94458
Attn: President
If to the Executive: __________________
__________________
__________________
10.5 Assignment. The Executive shall have no 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 the Executive, 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; or (ii) transferable
by operation of law in the event of bankruptcy, insolvency or otherwise. Any
such attempted assignment or transfer shall be void.
10.6 Binding Effect/Merger or Reorganization. This Agreement
shall be binding upon and inure to the benefit of the Executive and the Bank.
Accordingly, the Bank 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 Bank under this Agreement. In the alternative, the Holding Company may agree
to assume and discharge the obligation of the Bank under this Agreement. Upon
the occurrence of such event, the term "Bank" as used in this Agreement shall be
deemed to refer to such surviving or successor firm, person, entity or
corporation, or the Holding Company, as the case may be.
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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 terms, 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 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 the Board of Governors of the Federal Reserve System,
Federal Deposit Insurance Corporation, Office of the Comptroller of the
Currency, or any other regulatory agency or governmental authority having
jurisdiction over the Bank or the Holding Company, shall govern the validity,
interpretation, construction and effect of this Agreement.
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IN WITNESS WHEREOF, the Bank and the Executive have executed this
Agreement on the date first above-written in the City of Napa, California.
BANK: EXECUTIVE:
The Vintage Bank
By:
------------------------------------- ----------------------------
Glen C. Terry
President & Chief Executive Officer
Acceptance of designation as Administrator:
HOLDING COMPANY
NORTH BAY BANCORP
By:
---------------------------------
David B. Gaw
Chairman of the Board
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SCHEDULE A
----------
PLAN YEAR APPLICABLE PERCENTAGE
--------- ---------------------
After September 30, 2002 20%
After September 30, 2003 40%
After September 30, 2004 60%
After September 30, 2005 80%
After September 30, 2006 100%
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SCHEDULE B
----------
EXECUTIVE BENEFITS
The Bank shall pay to the Employee pursuant to the Agreement during the
Executive's lifetime, an amount equal to _____________________________________
($_______) per year in twelve equal monthly installments. The amount of
Executive Benefits payable under the Agreement shall be adjusted each year from
the date of commencement of payments of the Executive Benefits until the death
of the Executive as follows:
a. The Executive Benefits shall be increased at the rate of two percent
(2%) each year, subject to further adjustment for an Early Retirement.
b. Notwithstanding an Applicable Percentage of one hundred percent
(100%), if the Executive elects Early Retirement, the Executive Benefits shall
be decreased by a percentage calculated by subtracting the Executive's age at
Early Retirement from the Normal Retirement Age of 65, and multiplying the
result by a factor of five. For example, a 15% reduction of the Executive
Benefits would occur if the Executive's Early Retirement Age is 62, based on the
following calculation: 65-62=3x5=15%.
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