Exhibit 10.16
FARMERS & MERCHANTS BANK OF CENTRAL CALIFORNIA
EXECUTIVE RETENTION PLAN
1. Purpose of the Plan. The purpose of the Farmers & Merchants Bank of Central
California Executive Retention Plan is to provide a long-term compensation
opportunity for the participants in order to retain their services.
2. Definitions. As used in this Plan, the following terms shall have the
meanings indicated below:
"Bank" shall mean Farmers & Merchants Bank of Central California and any of
its subsidiaries.
"Board of Directors" shall mean the Board of Directors of the Bank.
"Participation Factor" shall mean, in respect of any Participant, the
numerical factor determined by the Committee for purposes of such
Participant's participation in the Plan.
"Termination for Cause" shall mean the Bank terminating the Executive's
employment for conviction of a felony resulting in a material economic
adverse effect on the Bank.
"Change of Control" shall mean a change, after January 1, 2005, of control
of the Holding Company. Such a Change of Control will be deemed to have
occurred immediately before the following occur: (i) individuals, who were
members of the Board of Directors of the Holding Company immediately prior
to a meeting of the shareholders of the Holding Company which meeting
involved a contest for the election of directors, do not constitute a
majority of the Board of Directors of the Holding Company following such
election or meeting, (ii) an acquisition, directly or indirectly, of more
than 35% of the outstanding shares of any class of voting securities of the
Holding Company by any Person, (iii) a merger (in which the Holding Company
is not the surviving entity), consolidation or sale of all, or
substantially all, of the assets of the Holding Company, or (iv) there is a
change, during any period of one year, of a majority of the Board of
Directors of the Holding Company as constituted as of the beginning of such
period, unless the election of each director who is not a director at the
beginning of such period was approved by a vote of at least a majority of
the directors then in office who were directors at the beginning of such
period. If any of the events or circumstances described in (i)-(iv), above,
shall occur to or be applicable to the Bank, then such Change of Control
shall be deemed for all purposes of this agreement to also be a "Change of
Control" of the Holding Company. For purposes of this agreement, the term
"Person" shall mean and include any individual, corporation, partnership,
group, association or other "person", as such term is used in Section 14(d)
of the Securities Exchange Act of 1934, other than the Holding Company, the
Bank, any other wholly owned subsidiary of the Company or any employee
benefit plan(s) sponsored by the Company, Bank or other subsidiary of the
Holding Company.
"Committee" shall mean the Personnel Committee of the Board of Directors or
such other committee that the Board of Directors may designate from time to
time.
"Disability" shall mean when a Participant (i) is unable to engage in any
substantial gainful activity by reason of any medical determinable physical
or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months, or
(ii) is by reason of any medical determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, receiving income replacement
benefits for a period of not less than three months under an accident and
health plan covering employees of Bank. Disability shall be determined by a
physician acceptable to both the Committee and the Participant
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"Full Year of Service" shall mean any calendar year in which an individual
completes at least 1,400 hours of employment with the Bank or the Holding
Company.
"Holding Company" shall mean Farmers & Merchants Bancorp.
"Participant" shall mean Kent A. Steinwert, President; Richard S. Erichson,
Executive Vice President; Deborah E. Hodkin, Executive Vice
President; Chris C. Nelson, Executive Vice President; Stephen W. Haley,
Executive Vice President; Kenneth W. Smith, Executive Vice President; and
Lamoin V. Schulz, Senior Vice President.
"Plan" shall mean the Farmers & Merchants Bank of Central California
Executive Retention Plan as set forth in this document, as successor of any
prior plans of the same name, and as the same may be amended or
supplemented from time to time.
3. Retention Compensation. Participants in the Plan will be eligible to earn
long-term Retention Compensation calculated as follows:
The closing stock price per share at December 31, 2004 ($425.00) times
the total number of such shares outstanding at December 31, 2004
(792,722),
minus
the Shareholders' Equity (exclusive of Accumulated Other
Comprehensive Income or Loss), per the Holding
Company's GAAP financial statements at December 31,
2004 ($117,577,000)
multiplied by
the Participant's Participation Factor.
4. Vesting. A Participant's entitlement to his or her Retention Compensation
shall vest based on the Participant's Full Years of Service with the Bank,
measured beginning January 1, 2005, as set forth in the vesting schedule
below. However, in the event of a Change of Control, his or her Retention
Compensation shall become 100% vested.
Percent of Retention
Post 2004 Full Years of Service Compensation Vested
------------------------------- -------------------
Less than 1 year 0%
1 year to less than 2 years 10%
2 years to less than 3 years 20%
3 years to less than 4 years 30%
4 years to less than 5 years 40%
5 years to less than 6 years 50%
6 years to less than 7 years 60%
7 years to less than 8 years 70%
8 years to less than 9 years 80%
9 years to less than 10 years 90%
10 years or more 100%
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5. Retention Compensation Account. The Bank shall establish a Retention
Compensation Account on its books for the Participant. Incrementally vested
amounts will be credited to this account and transferred to the rabbi trust
established under Section 19 (b) upon the earlier of a Change of Control or
the end of each calendar month. The Participant's account balance will not
be subject to movements in the Holding Company's stock price, but will be
credited with interest, as defined in Section 6. A Participant shall be
entitled to the amount set forth in the Retention Compensation Account
applicable to him or her, subject to the terms and conditions of this Plan,
including the vesting rules set forth in Section 4, the forfeiture rules
set forth in Section 9 and the payment rules set forth in Section 10.
6. Interest on Retention Compensation Account Balances. Interest will be
credited to each Participant's Retention Compensation Account balance, and
transferred to the rabbi trust established under Section 18 (b), at the end
of each calendar month: (a) from January 1, 2005 until such time as the
account balances are transferred to the rabbi trust at Prime-3.0%; and (b)
thereafter at a rate equivalent to the pre-tax investment earnings rate for
such month achieved in the rabbi trust.
7. Notice of Participation Factor and Statement of Accounts. As soon as
practicable following a determination by the Committee to grant a
Participation Factor to a Participant, the Committee shall give written
notice to the Participant of the amount of the Participation Factor. Such
notice shall enclose a copy of the Plan. The Bank shall also provide to the
Participant, within sixty (60) days after each calendar year-end, a
statement setting forth the Participant's account balance.
8. Accounting Device Only. The Retention Compensation Account is solely a
device for measuring amounts to be paid under this Plan. It is not a trust
fund of any kind. The Participant is a general unsecured creditor of the
Bank for the payment of benefits. The benefits represent the mere Bank
promise to pay such benefits. The Participant's rights are not subject in
any manner to anticipation, alienation, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by the Participant's creditors.
9. Forfeiture. Except in the event of a Change of Control, on termination of a
Participant's status as a Participant (whether by retirement, disability,
death or termination without cause), that portion of the Retention
Compensation that is not vested upon the occurrence of such event shall be
forfeited by the Participant. Notwithstanding anything to the contrary, in
the event of the Participant's Termination for Cause, all entitlement and
other rights of Participant to any Retention Compensation, whether or not
vested, shall be cancelled, terminated and forfeited in their entirety.
Amounts forfeited by any individual Participant will, in the sole
discretion of The Committee, either (i) remain in the Plan and be used to
offset future Plan credits required under Section 6 for the remaining
Participants, or (ii) withdrawn from the Plan (and the rabbi trust).
10. Payment.
a) Retirement. From and after the retirement of the Participant from the
service of the Bank, the Bank shall pay the vested portion of
Participant's Retention Compensation in accordance with the
Participant's Election on the attached Payment Election.
b) Disability. If Participant's termination of employment is due to
Disability, the Bank shall pay the vested portion of Participant's
Retention Compensation in accordance with the Participant's Election
on the attached Payment Election.
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c) Death. In the event of the Participant's death (i) while employed by
the Bank or the Holding Company, the vested portion of Participant's
Retention Compensation shall be paid to the Participant's heirs,
devisees or designated beneficiaries in one lump sum payment made on
the first day of the second month following the Participant's death,
or (ii) while receiving payments of his Retention Compensation as a
result of his prior retirement, disability, Change of Control or
termination without cause, the remaining portion of Participant's
vested Retention Compensation which had not been previously paid out
shall be paid to the Participant's heirs, devisees or designated
beneficiaries in one lump sum payment made on the first day of the
second month following the Participant's death,.
d) Change of Control. In the event of a Change of Control, the Bank shall
pay the full amount of Participant's Retention Compensation in
accordance with the Participant's Election on the attached Payment
Election.
e) Termination without Cause. In the event of the Employee's termination
of employment with the Bank for any reason, other than disability,
change of control, retirement, death or Termination for Cause, the
Bank shall pay the vested portion of Participant's Retention
Compensation in accordance with the Participant's Election on the
attached Payment Election.
11. Beneficiary Designation. The Participant shall have the right, at any time
to submit a Beneficiary Designation Form designating primary and secondary
beneficiaries to whom payment under this Plan shall be made in the event of
death prior to complete distribution of the benefits due and payable under
the Plan. Each beneficiary designation shall become effective only when
receipt thereof is acknowledged in writing by the Bank.
12. Assignment of Rights. Neither the Participant nor any designated
beneficiary shall have any right to sell, assign, transfer, or otherwise
convey the right to receive any payments hereunder without the prior
written consent of the Bank.
13. Unfunded and Unsecured Obligation of Bank. The Bank is not required to
earmark or otherwise set aside any funds or other assets or in any way
secure payment of its obligations under the Plan. Any asset which may be
set aside by the Bank for accounting purposes or in a rabbi trust is not to
be treated as held in trust for any Participant or for his or her account.
Each Participant shall have only the rights of a general, unsecured
creditor of the Bank with respect to any of his or her rights under the
Plan.
14. Claims Procedure. Any claim pertaining to a Participant's benefits under
the Plan shall be filed with the Chairman of the Committee for the
consideration of the Committee. Written notice of the disposition of a
claim shall be furnished the Participant within 30 days after the
application therefore is filed. In the event the claim is denied, the
specific reasons for such denial shall be set forth, pertinent provisions
of the Plan shall be cited and, where appropriate, an explanation as to how
the Participant can perfect his or her claim will be provided.
15. No Contract of Employment. Nothing contained herein shall be construed to
be a contract of employment for any term of years, nor as conferring upon
the Participant the right to continue to be employed by the Bank, in any
capacity, nor in any way vary the Bank's policy of at-will employment. It
is expressly understood by the parties hereto that this Plan relates
exclusively to the compensation as set forth in this agreement.
16. Construction of Agreement. Any payments under this Plan shall be
independent of, and in addition to, those under any other plan, program, or
agreement which may be in effect between the parties hereto, or any other
compensation payable to the Participant or the Participant's designated
beneficiary by the Bank. All legal issues pertaining to the Plan shall be
determined in accordance with the laws of the State of California except as
preempted by Federal law.
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17. Amendment. The Bank shall have the right at any time to modify, alter or
amend this Plan, in whole or in part, provided that the amendment shall not
reduce any Participant's interest in the Plan, calculated as of the date on
which the amendment is adopted. This Plan is intended to be consistent with
the provisions of Section 409A of the Internal Revenue Code. On the date of
adoption of this Plan, the Internal Revenue Service continues to issue
guidance on such Section. Bank reserves the right to change this Plan,
including reducing any Participant's interest in this Plan, in order to
make such Plan compliant with Section 409A.
18. The Committee.
a) The Committee shall, for the purpose of administering the Plan, choose
a secretary and an assistant secretary (either of whom is hereafter
referred to as "Secretary") who shall keep minutes of the Committee's
proceedings and all records and documents pertaining to the
Committee's administration of the Plan. The Secretary may execute any
certificates or other written direction on behalf of the Committee. A
majority of the members of the Committee shall constitute a quorum.
b) The Committee on behalf of the Participants shall be charged with the
general administration of the Plan and shall have all powers necessary
to accomplish those purposes including, but not by way of limitation,
the following:
- to construe, interpret, and administer the Plan;
- to make determinations under the Plan;
- to establish a rabbi trust for the Plan and to deposit amounts
calculated under Sections 5 and 6 into such trust established by
the Committee;
- to maintain the necessary records for the administration of the
Plan; and
- to make and publish such rules for the regulation of the Plan as
are not inconsistent with the terms hereof.
Decisions and determinations by the Committee shall be final and
binding upon all parties and shall be given the maximum deference
allowed by law.
c) The members of the Committee shall serve without bond and without
compensation (except for director fees) for their services hereunder.
All expenses of the Committee shall be paid by the Bank. The Bank
shall furnish the Committee with such clerical and other assistance as
is necessary in the performance of its duties. No member of the
Committee shall be liable for the act or omission of any other member
of the Committee, nor for any act or omission on his or her own part,
excepting only his or her own willful misconduct or gross negligence.
The Bank shall indemnify and hold harmless each member of the
Committee against any and all expenses and liabilities arising out of
his or her membership on the Committee, excepting only expenses and
liabilities arising out of his or her own willful misconduct or gross
negligence.
19. Gross-Up Payment. Upon a Change of Control, a Participant shall be entitled
to a "Gross-Up Payment" under the terms and conditions set forth herein,
and such payment shall include the Excise Tax reimbursement due pursuant to
subsection a) and any federal and state tax reimbursements due pursuant to
subsection b).
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a) In the event that any payment or benefit (as those terms are defined
within the meaning of Internal Revenue Code Section 280G(b)(2)) paid,
payable, distributed or distributable to a Participant (hereinafter
referred to as "Payments") pursuant to the terms of this Plan or
otherwise in connection with or arising out a Change of Control would
be subject to the Excise Tax imposed by Section 4999 of the Internal
Revenue Code or any interest or penalties are incurred by the
Participant with respect to such Excise Tax, then the Participant will
be entitled to receive an additional payment ("Gross-Up Payment") in
an amount equal to the total Excise Tax, interest and penalties
imposed on the Participant as a result of the Payment and the Excise
Taxes on any federal and state tax reimbursements as set forth in
subsection b).
b) If the Bank is obligated to pay the Participant pursuant to subsection
a), the Bank also shall pay the Participant an amount equal to the
"total presumed federal and state taxes" that could be imposed on the
Participant with respect to the Excise Tax reimbursements due to the
Participant pursuant to subsection a) and the federal and state tax
reimbursements due to the Participant pursuant to this subsection. For
purposes of the preceding sentence, the "total presumed federal and
state taxes" that could be imposed on the Participant shall be
conclusively calculated using a combined tax rate equal to the sum of
the (a) the highest individual income tax rate in effect under (i)
Federal tax law and (ii) the tax laws of the state in which the
Participant resides on the date that the payment is computed and (b)
the hospital insurance portion of FICA.
c) No adjustments will be made in this combined rate for the deduction of
state taxes on the federal return, the loss of itemized deductions or
exemptions, or for any other purpose for paying the actual taxes.
d) It is further intended that in the event that any payments would be
subject to other "penalty" taxes (in addition to the Excise Tax in
subsection a)) imposed by Congress or the Internal Revenue Service
that these taxes would also be included in the calculation of the
Gross-Up Payment, including any federal and state tax reimbursements
pursuant to subsection b).
e) An initial determination as to whether a Gross-Up Payment is required
pursuant to the Plan and the amount of such Gross-Up Payment shall be
made at the Bank's expense by an accounting firm appointed by the Bank
prior to any Change of Control. The accounting firm shall provide its
determination, together with detailed supporting calculations and
documentation to the Bank and the Participant prior to submission of
the proposed change of control to the Holding Company's shareholders,
Board of Directors or appropriate regulators for approval. If the
accounting firm determines that no Excise Tax is payable by the
Participant with respect to a Payment or Payments, it shall furnish
the Participant with an opinion reasonably acceptable to the
Participant that no Excise Tax will be imposed with respect to any
such Payment or Payments. Within ten (10) days of the delivery of the
determination to the Participant, the Participant shall have the right
to dispute the determination. The existence of the dispute shall not
in any way affect the Participant's right to receive the Gross-Up
Payment in accordance with the determination. Upon the final
resolution of a dispute, the Bank or its successor shall promptly pay
to the Participant any additional amount required by such resolution.
If there is no dispute, the determination shall be binding, final and
conclusive upon the Bank and the Participant, except to the extent
that any taxing authority subsequently makes a determination that the
Excise Tax or additional Excise Tax is due and owing on the payments
made to the Participant. If any taxing authority determines that the
Excise Tax or additional Excise Tax is due and owing, the entity
acquiring control of the Bank shall pay the Excise Tax and any
penalties assessed by such taxing authority.
f) Notwithstanding anything contained in this Section to the contrary, in
the event that according to the determination, an Excise Tax will be
imposed on any Payment or Payments, the Bank or its successor shall
pay to the applicable government taxing authorities as Excise Tax
withholding, the amount of the Excise Tax that the Bank has actually
withheld from the Payment or Payments.
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Payment of these amounts will be made subject to the terms of the
Participant's Employment Agreement, or in the absence of such an agreement,
immediately prior to the purchaser assuming control of the Bank or Holding
Company.
20. Headings. Headings and subheadings in this Plan are inserted for
convenience or reference only and are not to be considered in the
construction of the provisions hereof.
21. Intent. To the extent that this Plan may be construed to be a plan
maintained to provide deferred compensation, it is intended to be limited
to a "select group of management or highly compensated employees" within
the meaning of Section 201(2) of ERISA. The Plan is intended to be exempt
from the participation, vesting, funding, and fiduciary requirements of
Title 1 of ERISA, to the fullest extent permitted under the law. The Plan
shall at all times be "unfunded" within the meaning of ERISA.
22. Gender and Number. Where the context permits, words in any gender shall,
include any other gender; words in the singular shall include the plural,
and the plural shall include the singular.
IN WITNESS WHEREOF, the BANK has caused this plan to be duly executed this 3rd
day of May, 2005.
FARMERS & MERCHANTS BANK OF CENTRAL CALIFORNIA
By:/s/ Ole R. Mettler
_____________________________
Chairman of the Board
By:/s/ Kent A. Steinwert
_____________________________
President and C.E.O.
By:/s/ Stewart C. Adams, Jr.
_____________________________
Chairman of the Personnel Committee of the Board
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FARMERS & MERCHANTS BANK OF CENTRAL CALIFORNIA
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EXECUTIVE RETENTION PLAN
PAYMENT ELECTION
I elect to receive Payments under Section 10 a) ("Retirement") of the Plan in
the following manner: [Initial One]
____ Payable in a lump sum within forty-five (45) days after the six-month
anniversary of Age 65.
____ Payable over _____ years [insert number of years, not to exceed 25 years]
in equal monthly installments commencing with the month following the
six-month anniversary of Age 65.
____ Payable in a lump sum to my beneficiary upon my death.
____ Payable over _____ years [insert number of years, not to exceed 25 years]
in equal monthly installments commencing ____________________________,
(note: must be a date no earlier than six months after Age 65).
SIGNATURE ______________________________ DATE ___________________
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I elect to receive Payments under Section 10 e) ("Termination without Cause") of
the Plan in the following manner: [Initial One]
____ Payable in a lump sum within forty-five (45) days after the six-month
anniversary of the date of Termination of Employment.
____ Payable over _____ years [insert number of years, not to exceed 25 years]
in equal monthly installments commencing with the month following the
six-month anniversary of the date of Termination of Employment.
____ Payable in a lump sum to my beneficiary upon my death.
____ Payable over _____ years [insert number of years, not to exceed 25 years]
in equal monthly installments commencing ___________________________(note:
must be a date no earlier than six months after Termination).
SIGNATURE ______________________________ DATE ___________________
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I elect to receive Payments under Section 10 b) ("Disability") of the Plan in
the following manner: [Initial One]
____ Payable in a lump sum within forty-five (45) days after Termination of
Employment following a Disability.
____ Payable over _____ years [insert number of years, not to exceed 25 years]
in equal monthly installments commencing with the month following
Termination of Employment following a Disability.
____ Payable in a lump sum to my beneficiary upon my death.
____ Payable over _____ years [insert number of years, not to exceed 25 years]
in equal monthly installments commencing ____________________________
(note: must be a date).
SIGNATURE ______________________________ DATE ____________________
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I elect to receive Payments under Section 10 d) ("Change of Control") of the
Plan in the following manner: [Initial One]
____ Payable in a lump sum upon a Change of Control.
____ Payable over _____ years [insert number of years, not to exceed 25 years]
in equal monthly installments commencing with the month following a Change
of Control.
____ Payable in a lump sum to my beneficiary upon my death.
____ Payable over _____ years [insert number of years, not to exceed 25 years]
in equal monthly installments commencing _________________________ (note:
must be a date).
SIGNATURE ______________________________ DATE __________________
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Received by the Bank this _____ day of _____________, 200_.
By ____________________________________ Title _______________________
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FARMERS & MERCHANTS BANK OF CENTRAL CALIFORNIA
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EXECUTIVE RETENTION PLAN
BENEFICIARY DESIGNATION FORM
I. _________________________ (Insert Participant's name as it appears in the
Plan.)
===============================================================================
II. The above-named Participant's Revocable Beneficiary under the EXECUTIVE
RETENTION PLAN is set forth below:
___1. Participant's spouse, ____________________, if living at Participant's
death, if not, such of the children of the marriage of the Participant and said
spouse as shall be then living, equally.
___2. Participant's spouse, ____________________, if living at Participant's
death, if not, such of the Participant's children as shall be then living,
equally.
___3. Such of the following children of the Participant as shall be living at
the Participant's death, equally: ____________________, ____________________,
____________________.
___If this space is checked, and if paragraph 1, 2 or 3 is checked, then the
living children of any deceased child designed shall take the share, divided
equally, which such child would have if living.
___4. Participant's ____________________, if living at the Participant's death,
if not, Participant's ____________________, if then living, if not,
Participant's ____________________, if then living. (Insert relationship to
Participant and name.)
___5. Such of the following as shall be living at the Participant's death,
equally:
Participant's__________________________________________________________________
(Insert relationship to Participant and name.)
___6. Participant's ____________________, if living at Participant's death, if
not, such of the following as shall be then living, equally:
Participant's__________________________________________________________________
(Insert relationship to Participant and name.)
___7. Participant's _____________________________________________
(Insert relationship to Participant and name.)
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___8. _____________________________________________, as trustee(s) or the
successor trustee(s) under an Agreement dated _______________, ____, made by and
between (the Participant) (_______________) and said trustee(s), as now existing
or hereafter amended, or if said trust is not in existence at the Participant's
death, the executor(s) or administrator(s) of the Participant.
___9. The trustee(s) or successor trustee(s) under the instrument probated as
the Last Will and Testament of the Participant, or, if the Participant shall die
intestate or shall leave a Will creating no trust, the executor(s) or
administrator(s) of the Participant.
___10. Participant's executor(s) or administrator(s).
___11. _____________________________________________________, or its successors.
(Insert Name and address of firm or organization.)
==============================================================================
III. If any one of subparagraphs 1 through 7 of paragraph II above is applicable
and if no individual beneficiary named is living at the Participant's death, the
Beneficiary shall be the executor(s) or administrator(s) of the Participant.
IV. This Designation of Beneficiary revokes all prior designations and shall be
effective as of the date it is filed with the Bank. The Participant retains the
right to revoke this Designation of Beneficiary.
Dated at _______________, State of _______________, on _______________, ____.
______________________________
(Signature of Participant)
Witness:
______________________________
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CONSENT OF SPOUSE
(Required in Community Property States)
I hereby consent to the designation of the above beneficiary (ies) to receive
the benefits payable under the FARMERS & MERCHANTS BANK OF CENTRAL CALIFORNIA,
EXECUTIVE RETENTION PLAN as a result of the death of the above Participant and
waive any and all rights necessary to provide the payment of such benefits to
such beneficiary (ies).
Dated at ____________, State of__________, on _______________, ____.
______________________________
(Signature of Spouse)
Witness:
______________________________
FILING ACKNOWLEDGEMENT
Filed with the records of the Bank this ___ day of _______________, ____.
By____________________________
______________________________
Title
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