| þ | Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 |
| o | Transaction report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 |
|
California
(State or other jurisdiction of incorporation or organization) |
75-2987096
(IRS Employer Identification No.) |
|
|
35 S. Lindan Avenue, Quincy, CA
(Address of principal executive offices) |
95971
(Zip Code) |
| Title of Each Class: | Name of Each Exchange on which Registered: | |
| Common Stock, no par value | The NASDAQ Stock Market LLC |
| Large Accelerated Filer o | Accelerated Filer o | Non-Accelerated Filer o | Smaller Reporting Company þ |
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PART I
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PART II
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PART III
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PART IV
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| Exhibit 3.2 | ||||||||
| Exhibit 10.1 | ||||||||
| Exhibit 10.50 | ||||||||
| Exhibit 10.51 | ||||||||
| Exhibit 10.52 | ||||||||
| Exhibit 10.53 | ||||||||
| Exhibit 10.54 | ||||||||
| Exhibit 10.55 | ||||||||
| Exhibit 10.56 | ||||||||
| Exhibit 10.57 | ||||||||
| Exhibit 10.58 | ||||||||
| Exhibit 23 | ||||||||
| Exhibit 31.1 | ||||||||
| Exhibit 31.2 | ||||||||
| Exhibit 32.1 | ||||||||
| Exhibit 32.2 | ||||||||
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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Table of Contents
Requirement for the
Bank to be:
Adequately
Well
Plumas
Plumas
Capitalized
Capitalized
Bank
Bancorp
4.0
%
5.0
%
9.7
%
9.8
%
4.0
%
6.0
%
10.8
%
11.0
%
8.0
%
10.0
%
12.1
%
12.2
%
Table of Contents
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Table of Contents
Owned Properties
Quincy, California (1)
32 Central Avenue
Quincy, California (1)
80 W. Main St.
Quincy, California (1)
Quincy, California (1)
336 West Main Street
Quincy, California
120 North Pine Street
Portola, California
Fall River Mills, California
121 Crescent Street
Greenville, California
315 Birch Street
Westwood, California (2)
Chester, California
510 North Main Street
Alturas, California
3000 Riverside Drive
Susanville, California
Kings Beach, California
11638 Donner Pass Road
Truckee, California
Leased Properties
Tahoe City, California
604 Main Street
Loyalton, California
2175 Civic Center Drive
Redding, California
Reno, Nevada (3)
470 Nevada St., Suite 108
Auburn, California (3)
(1)
(2)
(3)
Year Ending December 31,
$
319,000
283,000
262,000
262,000
194,000
728,000
$
2,048,000
Table of Contents
Table of Contents
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
F - 1
F - 2
F - 3
F - 4
F - 5
F - 6
F - 7
F - 8
F - 9
F - 10
F - 11
F - 12
F - 13
F - 14
F - 15
F - 16
F - 17
F - 18
F - 19
F - 20
F - 21
F - 22
F - 23
F - 24
F - 25
F - 26
F - 27
F - 28
F - 29
F - 30
F - 31
F - 32
F - 33
F - 34
F - 35
F - 36
F - 37
F - 38
F - 39
F - 40
F - 41
F - 42
F - 43
F - 44
F - 45
F - 46
F - 47
F - 48
52
53
54
55
56
57
58
59
ITEM 5.
Quarter
Dividends
High
Low
$
0.08
$
11.00
$
3.80
—
$
11.97
$
8.97
$
0.16
$
14.93
$
10.34
—
$
14.41
$
9.75
$
0.15
$
14.48
$
11.50
—
$
13.82
$
11.50
$
0.15
$
16.49
$
12.38
—
$
17.01
$
14.50
Table of Contents
Number of securities remaining
available for future issuance
Number of securities to
Weighted-average
under equity compensation
be issued upon exercise
exercise price of
plans (excluding securities
of outstanding options
outstanding options
reflected in column (a))
Plan Category
(a)
(b)
(c)
466,956
$
13.38
407,229
None
Not Applicable
None
466,956
$
13.38
407,229
Total Number
of Shares
Purchased as
Part of
Maximum
Total
Publicly
Number of Shares
Number of
Average
Announced
That May Yet Be
Shares
Price Paid
Plans or
Purchased Under the
Period
Purchased
per Share (1)
Programs
Plans or Programs (2)
22,556
$
10.33
22,556
142,827
—
—
—
142,827
5,094
$
7.55
5,094
0
27,650
$
9.82
27,650
(1)
(2)
Table of Contents
At or for the year ended December 31,
2008
2007
2006
2005
2004
(dollars in thousands except per share information)
$
25,440
$
30,284
$
29,483
$
25,497
$
20,110
5,364
8,536
6,954
4,793
2,914
20,076
21,748
22,529
20,704
17,196
4,600
800
1,000
1,100
750
5,091
5,448
5,159
5,073
5,099
20,475
19,671
18,290
17,549
15,898
(212
)
2,502
3,196
2,600
2,001
$
304
$
4,223
$
5,202
$
4,528
$
3,646
$
457,175
$
453,115
$
473,239
$
472,803
$
417,346
$
366,017
$
352,949
$
354,712
$
321,646
$
266,913
$
7,224
$
4,211
$
3,917
$
3,256
$
2,722
$
371,493
$
391,940
$
402,176
$
426,560
$
378,567
$
35,437
$
37,139
$
35,852
$
31,137
$
27,891
$
447,720
$
464,974
$
468,988
$
452,225
$
409,335
$
355,416
$
353,384
$
335,226
$
302,596
$
233,759
$
382,279
$
403,772
$
415,700
$
403,818
$
373,267
$
37,343
$
37,041
$
33,682
$
29,548
$
26,829
9.8
%
10.0
%
9.5
%
8.5
%
7.6
%
11.0
%
11.6
%
10.9
%
10.3
%
10.1
%
12.2
%
12.7
%
11.8
%
11.1
%
10.9
%
7.31
%
0.75
%
0.29
%
0.52
%
0.45
%
6.78
%
0.70
%
0.22
%
0.36
%
0.30
%
1.97
%
1.19
%
1.10
%
1.01
%
1.02
%
$
1,587
$
506
$
339
$
566
$
552
0.07
%
0.91
%
1.11
%
1.00
%
0.89
%
0.8
%
11.4
%
15.4
%
15.2
%
13.5
%
4.99
%
5.18
%
5.32
%
5.06
%
4.77
%
98.5
%
90.1
%
88.2
%
75.4
%
70.5
%
81.4
%
72.3
%
66.1
%
68.1
%
71.3
%
$
0.06
$
0.85
$
1.04
$
0.92
$
0.75
$
0.06
$
0.84
$
1.02
$
0.89
$
0.73
$
0.24
$
0.30
$
0.26
$
0.22
$
0.19
400
%
35.3
%
25.0
%
23.9
%
25.1
%
$
7.42
$
7.63
$
7.14
$
6.26
$
5.69
4,775,339
4,869,130
5,023,205
4,976,654
4,901,197
Table of Contents
ITEM 7.
Table of Contents
Table of Contents
Table of Contents
Year ended December 31,
2008
2007
2006
Interest
Rates
Interest
Rates
Interest
Rates
Average
income/
earned/
Average
income/
earned/
Average
income/
earned/
balance
expense
paid
balance
expense
paid
balance
expense
paid
(dollars in thousands)
$
118
$
3
2.54
%
$
3,517
$
171
4.86
%
$
3,616
$
164
4.54
%
46,658
1,887
4.04
62,690
2,404
3.83
84,794
3,047
3.59
355,416
23,550
6.63
353,384
27,709
7.84
335,226
26,272
7.84
402,192
25,440
6.33
%
419,591
30,284
7.22
%
423,636
29,483
6.96
%
12,174
12,850
13,547
33,354
32,533
31,805
$
447,720
$
464,974
$
468,988
$
73,338
548
0.75
%
$
77,254
1,335
1.73
%
$
80,685
1,489
1.85
%
37,626
312
0.83
39,431
327
0.83
56,496
661
1.17
48,573
161
0.33
50,448
245
0.49
59,802
423
0.71
110,743
3,501
3.16
121,808
5,304
4.35
93,515
3,314
3.54
11,857
202
1.70
8,735
467
5.35
4,446
237
5.33
10,310
623
6.04
10,310
835
8.10
10,310
810
7.86
309
17
5.50
303
23
7.59
285
20
7.02
292,756
5,364
1.83
%
308,289
8,536
2.77
%
305,539
6,954
2.28
%
111,999
114,831
125,202
5,622
4,813
4,565
37,343
37,041
33,682
$
447,720
$
464,974
$
468,988
$
20,076
$
21,748
$
22,529
4.50
%
4.45
%
4.68
%
4.99
%
5.18
%
5.32
%
(1)
(2)
(3)
(4)
(5)
Table of Contents
2008 compared to 2007
2007 compared to 2006
Increase (decrease) due to change in:
Increase (decrease) due to change in:
Average
Average
Average
Average
Volume
(1)
Rate
(2)
Mix
(3)
Total
Volume
(1)
Rate
(2)
Mix
(3)
Total
(dollars in thousands)
$
(165
)
$
(82
)
$
79
$
(168
)
$
(4
)
$
12
$
(1
)
$
7
(615
)
131
(33
)
(517
)
(794
)
205
(54
)
(643
)
159
(4,294
)
(24
)
(4,159
)
1,423
13
1
1,437
(621
)
(4,245
)
22
(4,844
)
625
230
(54
)
801
(68
)
(758
)
39
(787
)
(63
)
(95
)
4
(154
)
(15
)
—
—
(15
)
(200
)
(192
)
58
(334
)
(9
)
(78
)
3
(84
)
(66
)
(133
)
21
(178
)
(482
)
(1,453
)
132
(1,803
)
1,003
758
229
1,990
167
(318
)
(114
)
(265
)
228
1
1
230
—
(212
)
—
(212
)
—
25
—
25
—
(6
)
—
(6
)
1
2
—
3
(407
)
(2,825
)
60
(3,172
)
903
366
313
1,582
$
(214
)
$
(1,420
)
$
(38
)
$
(1,672
)
$
(278
)
$
(136
)
$
(367
)
$
(781
)
(1)
(2)
(3)
Table of Contents
Table of Contents
Table of Contents
Years Ended December 31,
Change during Year
2008
2007
2006
2008
2007
(dollars in thousands)
$
3,951
$
3,806
$
3,676
$
145
$
130
421
415
393
6
22
286
282
318
4
(36
)
125
162
104
(37
)
58
114
119
113
(5
)
6
111
47
42
64
5
105
109
104
(4
)
5
96
140
14
(44
)
126
93
157
170
(64
)
(13
)
67
67
69
—
(2
)
(415
)
—
—
(415
)
—
137
144
156
(7
)
(12
)
$
5,091
$
5,448
$
5,159
$
(357
)
$
289
Table of Contents
Years Ended December 31,
Change during Year
2008
2007
2006
2008
2007
(dollars in thousands)
$
10,884
$
11,200
$
10,043
$
(316
)
$
1,157
3,838
3,552
3,323
286
229
735
671
591
64
80
688
738
780
(50
)
(42
)
618
—
—
618
—
467
530
555
(63
)
(25
)
448
520
552
(72
)
(32
)
400
362
374
38
(12
)
380
192
139
188
53
323
349
370
(26
)
(21
)
289
279
270
10
9
258
48
53
210
(5
)
236
278
282
(42
)
(4
)
235
177
173
58
4
216
301
301
(85
)
—
208
242
249
(34
)
(7
)
252
232
235
20
(3
)
$
20,475
$
19,671
$
18,290
$
804
$
1,381
Table of Contents
Table of Contents
Table of Contents
At December 31,
2008
2007
2006
2005
2004
(dollars in thousands)
$
151,943
$
128,357
$
116,329
$
110,686
$
102,125
73,820
76,478
75,930
56,370
31,964
42,528
39,584
36,182
42,252
42,689
61,706
72,768
90,694
81,320
59,068
36,020
35,762
35,577
31,018
31,067
366,017
352,949
354,712
321,646
266,913
(279
)
(564
)
(1,182
)
(766
)
260
7,224
4,211
3,917
3,256
2,722
$
359,072
$
349,302
$
351,977
$
319,156
$
263,931
Table of Contents
Within
After One
After
One Year
Through Five Years
Five Years
Total
(dollars in thousands)
$
22,552
$
31,695
$
97,696
$
151,943
43,487
17,119
13,214
73,820
11,179
16,854
14,495
42,528
11,627
24,519
25,560
61,706
16,556
13,030
6,434
36,020
$
105,401
$
103,217
$
157,399
$
366,017
$
42,091
$
60,973
$
103,064
61,126
96,426
157,552
$
103,217
$
157,399
$
260,616
Table of Contents
•
•
•
•
•
•
Table of Contents
At December 31,
2008
2007
2006
2005
2004
(dollars in thousands)
$
4,211
$
3,917
$
3,256
$
2,722
$
2,524
477
83
126
297
103
95
—
—
—
—
522
46
—
—
—
689
657
519
442
600
1,783
786
645
739
703
11
53
46
21
15
14
—
—
—
—
—
—
—
—
—
171
227
260
152
136
196
280
306
173
151
1,587
506
339
566
552
4,600
800
1,000
1,100
750
$
7,224
$
4,211
$
3,917
$
3,256
$
2,722
0.45
%
0.14
%
0.10
%
0.19
%
0.24
%
1.97
%
1.19
%
1.10
%
1.01
%
1.02
%
Table of Contents
At December 31,
2008
2007
2006
2005
2004
(dollars in thousands)
$
26,444
$
2,618
$
972
$
1,661
$
1,171
297
14
41
—
36
26,741
2,632
1,013
1,661
1,207
4,148
402
—
—
—
129
135
47
40
33
$
31,018
$
3,169
$
1,060
$
1,701
$
1,240
$
576
$
161
$
53
$
39
$
25
$
74
$
118
$
116
$
16
$
63
7.31
%
0.75
%
0.29
%
0.52
%
0.45
%
6.78
%
0.70
%
0.22
%
0.36
%
0.30
%
27
%
160
%
387
%
196
%
226
%
Table of Contents
December 31,
2008
2007
2006
(dollars in thousands)
Available-for-sale (fair value)
$
1,508
$
3,481
$
5,344
10,392
19,662
30,063
1,550
3,923
7,868
12,357
14,738
17,440
$
25,807
$
41,804
$
60,715
December 31,
2008
2007
2006
(dollars in thousands)
Held-to-maturity (amortized cost)
$
12,567
$
13,488
$
14,080
Table of Contents
After One Through
After Five Through
One Year or Less
Five Years
Ten Years
After Ten Years
Total
(dollars in thousands)
Amount
Yield
Amount
Yield
Amount
Yield
Amount
Yield
Amount
Yield
Available-for-sale (Fair Value)
$
1,508
3.13
%
$
—
—
%
$
—
—
%
$
—
—
%
$
1,508
3.13
%
—
—
%
10,392
4.69
%
—
—
%
—
—
%
10,392
4.69
%
1,550
3.68
%
—
—
%
—
—
%
—
—
%
1,550
3.68
%
—
—
%
6,053
3.73
%
6,304
4.66
%
—
—
%
12,357
4.46
%
$
3,058
3.41
%
$
16,445
4.33
%
$
6,304
4.66
%
$
—
—
%
$
25,807
4.29
%
$
—
—
%
$
1,977
5.17
%
$
10,300
5.78
%
$
290
6.25
%
$
12,567
5.70
%
Table of Contents
2008
2007
2006
Average
Average
Average
Balance
Rate %
Balance
Rate %
Balance
Rate %
(dollars in thousands)
$
111,999
$
114,831
$
125,202
73,338
0.75
%
77,254
1.73
%
80,685
1.85
%
37,626
0.83
%
39,431
0.83
%
56,496
1.17
%
48,573
0.33
%
50,448
0.49
%
59,802
0.71
%
110,743
3.16
%
121,808
4.35
%
93,515
3.54
%
270,280
1.67
%
288,941
2.50
%
290,498
2.03
%
$
382,279
1.18
%
$
403,772
1.79
%
$
415,700
1.42
%
(dollars in thousands)
Amount
$
17,085
8,095
6,761
4,238
$
36,179
Table of Contents
Table of Contents
Table of Contents
December 31, 2008
December 31, 2007
Amount
Ratio
Amount
Ratio
$
43,885
9.8
%
$
46,209
10.0
%
17,907
4.0
%
18,439
4.0
%
43,372
9.7
%
45,415
9.9
%
22,365
5.0
%
23,024
5.0
%
17,892
4.0
%
18,419
4.0
%
43,885
11.0
%
46,209
11.6
%
16,021
4.0
%
15,881
4.0
%
43,372
10.8
%
45,415
11.5
%
23,996
6.0
%
23,790
6.0
%
15,997
4.0
%
15,860
4.0
%
48,919
12.2
%
50,475
12.7
%
32,042
8.0
%
31,763
8.0
%
48,399
12.1
%
49,681
12.5
%
39,994
10.0
%
39,651
10.0
%
31,995
8.0
%
31,720
8.0
%
Table of Contents
Page
F-1
F-2
F-3
F-5
F-7
F-10
Table of Contents
Plumas Bancorp and Subsidiary
March 10, 2009
Table of Contents
2008
2007
$
18,791,000
$
13,207,000
—
—
18,791,000
13,207,000
38,374,000
55,292,000
359,072,000
349,302,000
15,764,000
14,666,000
821,000
1,037,000
9,766,000
9,428,000
4,277,000
537,000
10,310,000
9,646,000
$
457,175,000
$
453,115,000
$
112,783,000
$
111,240,000
258,710,000
280,700,000
371,493,000
391,940,000
34,000,000
7,500,000
5,935,000
6,226,000
10,310,000
10,310,000
421,738,000
415,976,000
—
—
5,302,000
5,042,000
29,818,000
32,204,000
317,000
(107,000
)
35,437,000
37,139,000
$
457,175,000
$
453,115,000
part of these consolidated financial statements.
Table of Contents
2008
2007
2006
$
23,550,000
$
27,709,000
$
26,272,000
1,398,000
1,900,000
2,516,000
489,000
504,000
531,000
3,000
171,000
164,000
25,440,000
30,284,000
29,483,000
4,522,000
7,211,000
5,887,000
219,000
490,000
257,000
623,000
835,000
810,000
5,364,000
8,536,000
6,954,000
20,076,000
21,748,000
22,529,000
4,600,000
800,000
1,000,000
15,476,000
20,948,000
21,529,000
3,951,000
3,806,000
3,676,000
111,000
47,000
42,000
(415,000
)
—
—
421,000
415,000
393,000
1,023,000
1,180,000
1,048,000
5,091,000
5,448,000
5,159,000
Table of Contents
(Continued)
2008
2007
2006
$
10,884,000
$
11,200,000
$
10,043,000
3,838,000
3,552,000
3,323,000
5,753,000
4,919,000
4,924,000
20,475,000
19,671,000
18,290,000
92,000
6,725,000
8,398,000
(212,000
)
2,502,000
3,196,000
$
304,000
$
4,223,000
$
5,202,000
$
0.06
$
0.85
$
1.04
$
0.06
$
0.84
$
1.02
$
0.24
$
0.30
$
0.26
part of these consolidated financial statements.
Table of Contents
Accumulated
Other
Comprehensive
Total
Total
Common Stock
Retained
(Loss) Income
Shareholders’
Comprehensive
Shares
Amount
Earnings
(Net of Taxes)
Equity
Income
4,976,654
$
4,412,000
$
27,816,000
$
(1,091,000
)
$
31,137,000
5,202,000
5,202,000
$
5,202,000
399,000
399,000
399,000
$
5,601,000
(1,302,000
)
(1,302,000
)
(21,255
)
(417,000
)
(417,000
)
67,806
659,000
659,000
174,000
174,000
5,023,205
4,828,000
31,716,000
(692,000
)
35,852,000
4,223,000
4,223,000
$
4,223,000
585,000
585,000
585,000
$
4,808,000
(1,491,000
)
(1,491,000
)
(4,630
)
(70,000
)
(70,000
)
19,292
152,000
152,000
288,000
288,000
(168,737
)
(156,000
)
(2,244,000
)
(2,400,000
)
4,869,130
5,042,000
32,204,000
(107,000
)
37,139,000
Table of Contents
(Continued)
Accumulated
Other
Comprehensive
Total
Total
Common Stock
Retained
(Loss) Income
Shareholders’
Comprehensive
Shares
Amount
Earnings
(Net of Taxes)
Equity
Income
4,869,130
$
5,042,000
$
32,204,000
$
(107,000
)
$
37,139,000
(420,000
)
(420,000
)
304,000
304,000
$
304,000
424,000
424,000
424,000
$
728,000
(1,153,000
)
(1,153,000
)
12,476
68,000
68,000
292,000
292,000
(106,267
)
(100,000
)
(1,117,000
)
(1,217,000
)
4,775,339
$
5,302,000
$
29,818,000
$
317,000
$
35,437,000
2008
2007
2006
$
668,000
$
585,000
$
399,000
(244,000
)
—
—
$
424,000
$
585,000
$
399,000
part of these consolidated financial statements.
Table of Contents
2008
2007
2006
$
304,000
$
4,223,000
$
5,202,000
4,600,000
800,000
1,000,000
285,000
618,000
(416,000
)
292,000
288,000
174,000
(9,000
)
(61,000
)
1,984,000
2,197,000
2,171,000
56,000
149,000
387,000
(55,000
)
(63,000
)
(89,000
)
415,000
618,000
13,000
39,000
18,000
(17,000
)
(23,000
)
(63,000
)
(421,000
)
(415,000
)
(393,000
)
83,000
80,000
74,000
297,000
(426,000
)
(41,000
)
(711,000
)
1,325,000
166,000
(1,459,000
)
(787,000
)
(456,000
)
6,319,000
7,939,000
7,695,000
Table of Contents
(Continued)
2008
2007
2006
$
16,475,000
$
27,876,000
$
19,931,000
920,000
585,000
(2,990,000
)
(11,009,000
)
(155,000
)
2,819,000
2,961,000
3,521,000
134,000
(19,520,000
)
355,000
(33,831,000
)
376,000
429,000
211,000
20,000
8,000
(2,566,000
)
(1,116,000
)
(5,173,000
)
419,000
(200,000
)
(4,486,000
)
20,520,000
(15,554,000
)
9,658,000
(37,881,000
)
(26,025,000
)
(30,105,000
)
27,645,000
1,641,000
26,500,000
(12,500,000
)
20,000,000
68,000
73,000
181,000
9,000
61,000
(1,217,000
)
(2,400,000
)
(1,153,000
)
(1,491,000
)
(1,302,000
)
3,751,000
(26,545,000
)
(5,444,000
)
5,584,000
1,914,000
(13,303,000
)
13,207,000
11,293,000
24,596,000
$
18,791,000
$
13,207,000
$
11,293,000
Table of Contents
(Continued)
2008
2007
2006
$
5,804,000
$
8,184,000
$
6,882,000
$
1,385,000
$
3,495,000
$
3,370,000
$
4,364,000
$
402,000
$
388,000
$
500,000
$
196,000
$
113,000
$
230,000
$
424,000
$
585,000
$
399,000
$
70,000
$
417,000
$
9,000
$
61,000
part of these consolidated financial statements.
Table of Contents
1.
2.
Table of Contents
(Continued)
2.
•
•
Table of Contents
(Continued)
2.
Table of Contents
(Continued)
2.
Table of Contents
(Continued)
2.
Table of Contents
(Continued)
2.
Table of Contents
(Continued)
2.
Table of Contents
(Continued)
2.
Table of Contents
(Continued)
2.
2008
2007
2006
5.2 years
6.6 years
5.0 years
2.98
%
4.71
%
4.67
%
25.3
%
26.8
%
21.4
%
2.61
%
1.72
%
1.40
%
$
2.54
$
4.53
$
4.56
Table of Contents
(Continued)
2.
Table of Contents
(Continued)
3.
December 31, 2008
December 31, 2007
Carrying
Fair
Carrying
Fair
Amount
Value
Amount
Value
$
18,791,000
$
18,791,000
$
13,207,000
$
13,207,000
38,374,000
38,606,000
55,292,000
55,367,000
359,072,000
363,811,000
349,302,000
348,672,000
9,766,000
9,766,000
9,428,000
9,428,000
2,063,000
2,063,000
2,619,000
2,619,000
$
371,493,000
$
371,761,000
$
391,940,000
$
391,975,000
34,000,000
34,000,000
7,500,000
7,500,000
10,310,000
2,420,000
10,310,000
9,314,000
487,000
487,000
927,000
927,000
Table of Contents
(Continued)
3.
Table of Contents
(Continued)
3.
Fair Value Measurements at December 31, 2008 Using
Quoted Prices in
Active Markets for
Significant Other
Significant
Identical Assets
Observable Inputs
Unobservable Inputs
December 31, 2008
(Level 1)
(Level 2)
(Level 3)
$
25,807,000
$
13,450,000
$
12,357,000
$
—
Table of Contents
(Continued)
3.
Fair Value Measurements at December 31, 2008 Using
Quoted Prices in
Active Markets for
Significant Other
Significant
Identical Assets
Observable Inputs
Unobservable Inputs
December 31, 2008
(Level 1)
(Level 2)
(Level 3)
$
23,312,000
$
—
$
23,312,000
$
—
4.
2008
Gross
Gross
Estimated
Amortized
Unrealized
Unrealized
Fair
Cost
Gains
Losses
Value
$
1,498,000
$
10,000
$
1,508,000
10,001,000
391,000
10,392,000
12,183,000
189,000
$
(15,000
)
12,357,000
1,585,000
1,000
(36,000
)
1,550,000
$
25,267,000
$
591,000
$
(51,000
)
$
25,807,000
Table of Contents
(Continued)
4.
2007
Gross
Gross
Estimated
Amortized
Unrealized
Unrealized
Fair
Cost
Gains
Losses
Value
$
3,489,000
$
(8,000
)
$
3,481,000
19,522,000
$
191,000
(51,000
)
19,662,000
15,001,000
12,000
(275,000
)
14,738,000
3,975,000
(52,000
)
3,923,000
$
41,987,000
$
203,000
$
(386,000
)
$
41,804,000
2008
Gross
Gross
Estimated
Amortized
Unrealized
Unrealized
Fair
Cost
Gains
Losses
Value
$
12,567,000
$
278,000
$
(46,000
)
$
12,799,000
2007
Gross
Gross
Estimated
Amortized
Unrealized
Unrealized
Fair
Cost
Gains
Losses
Value
$
13,488,000
$
95,000
$
(20,000
)
$
13,563,000
Table of Contents
(Continued)
4.
Less than 12 Months
12 Months or More
Total
Fair
Unrealized
Fair
Unrealized
Fair
Unrealized
Value
Losses
Value
Losses
Value
Losses
$
1,366,000
$
39,000
$
809,000
$
7,000
$
2,175,000
$
46,000
3,419,000
15,000
3,419,000
15,000
1,050,000
36,000
1,050,000
36,000
$
1,366,000
$
39,000
$
5,278,000
$
58,000
$
6,644,000
$
97,000
Less than 12 Months
12 Months or More
Total
Fair
Unrealized
Fair
Unrealized
Fair
Unrealized
Value
Losses
Value
Losses
Value
Losses
$
3,481,000
$
8,000
$
3,481,000
$
8,000
$
1,001,000
$
5,000
8,469,000
46,000
9,470,000
51,000
421,000
1,000
3,873,000
19,000
4,294,000
20,000
12,640,000
275,000
12,640,000
275,000
3,923,000
52,000
3,923,000
52,000
$
1,422,000
$
6,000
$
32,386,000
$
400,000
$
33,808,000
$
406,000
Table of Contents
(Continued)
4.
Available-for-Sale
Held-to-Maturity
Estimated
Estimated
Amortized
Fair
Amortized
Fair
Cost
Value
Cost
Value
$
3,083,000
$
3,058,000
10,001,000
10,392,000
$
1,977,000
$
2,017,000
10,300,000
10,504,000
290,000
278,000
13,084,000
13,450,000
12,567,000
12,799,000
12,183,000
12,357,000
$
25,267,000
$
25,807,000
$
12,567,000
$
12,799,000
Table of Contents
(Continued)
5.
December 31,
2008
2007
$
42,528,000
$
39,584,000
36,020,000
35,762,000
151,943,000
128,357,000
73,820,000
76,478,000
61,706,000
72,768,000
366,017,000
352,949,000
279,000
564,000
(7,224,000
)
(4,211,000
)
$
359,072,000
$
349,302,000
Year Ended December 31,
2008
2007
2006
$
4,211,000
$
3,917,000
$
3,256,000
4,600,000
800,000
1,000,000
(1,783,000
)
(786,000
)
(645,000
)
196,000
280,000
306,000
$
7,224,000
$
4,211,000
$
3,917,000
Table of Contents
(Continued)
5.
Year Ended December 31,
2008
2007
2006
$
76,000
$
69,000
$
97,000
62,000
24,000
15,000
(30,000
)
(17,000
)
(43,000
)
$
108,000
$
76,000
$
69,000
2008
2007
2006
$
247,000
$
238,000
$
326,000
46,000
68,000
67,000
(80,000
)
(59,000
)
(155,000
)
$
213,000
$
247,000
$
238,000
Table of Contents
(Continued)
6.
December 31,
2008
2007
$
2,397,000
$
2,397,000
14,220,000
12,621,000
9,912,000
8,723,000
309,000
26,529,000
24,050,000
(10,765,000
)
(9,384,000
)
$
15,764,000
$
14,666,000
December 31,
2008
2007
$
72,589,000
$
74,811,000
39,225,000
32,149,000
48,604,000
45,343,000
36,179,000
51,588,000
62,113,000
76,809,000
$
258,710,000
$
280,700,000
Table of Contents
(Continued)
7.
Year Ending December 31,
$
86,350,000
8,257,000
2,064,000
1,283,000
306,000
32,000
$
98,292,000
8.
Table of Contents
(Continued)
9.
Table of Contents
(Continued)
10.
Year Ending
December 31,
$
319,000
283,000
262,000
262,000
194,000
728,000
$
2,048,000
December 31,
2008
2007
$
78,787,000
$
96,867,000
$
534,000
$
655,000
Table of Contents
(Continued)
10.
Table of Contents
(Continued)
11.
Table of Contents
(Continued)
11.
Weighted
Average
Number of
Net
Shares
Per Share
For the Year Ended
Income
Outstanding
Amount
$
304,000
4,817,411
$
0.06
18,022
$
304,000
4,835,433
$
0.06
$
4,223,000
4,963,192
$
0.85
41,957
$
4,223,000
5,005,149
$
0.84
$
5,202,000
5,001,389
$
1.04
83,532
$
5,202,000
5,084,921
$
1.02
Table of Contents
(Continued)
11.
Weighted
Weighted
Average
Average
Remaining
Exercise
Contractual
Shares
Price
Term
Intrinsic Value
355,976
$
10.90
7,500
17.52
(67,806
)
8.41
(4,756
)
12.68
290,914
$
11.62
155,700
16.37
(19,292
)
7.47
(31,550
)
15.69
395,772
$
13.37
90,300
12.40
(12,476
)
5.38
(6,640
)
14.30
466,956
$
13.38
5.6
$
38,000
255,883
$
12.37
4.8
$
38,000
211,073
$
14.60
6.6
$
—
Table of Contents
(Continued)
11.
Table of Contents
(Continued)
11.
December 31,
2008
2007
Amount
Ratio
Amount
Ratio
$
43,885,000
9.8
%
$
46,209,000
10.0
%
$
17,907,000
4.0
%
$
18,439,000
4.0
%
$
43,372,000
9.7
%
$
45,415,000
9.9
%
$
22,365,000
5.0
%
$
23,024,000
5.0
%
$
17,892,000
4.0
%
$
18,419,000
4.0
%
$
43,885,000
11.0
%
$
46,209,000
11.6
%
$
16,021,000
4.0
%
$
15,881,000
4.0
%
$
43,372,000
10.8
%
$
45,415,000
11.5
%
$
23,996,000
6.0
%
$
23,790,000
6.0
%
$
15,997,000
4.0
%
$
15,860,000
4.0
%
$
48,919,000
12.2
%
$
50,475,000
12.7
%
$
32,042,000
8.0
%
$
31,763,000
8.0
%
$
48,399,000
12.1
%
$
49,681,000
12.5
%
$
39,994,000
10.0
%
$
39,651,000
10.0
%
$
31,995,000
8.0
%
$
31,720,000
8.0
%
Table of Contents
(Continued)
11.
12.
Year Ended December 31,
2008
2007
2006
$
735,000
$
671,000
$
591,000
688,000
738,000
780,000
618,000
467,000
530,000
555,000
448,000
520,000
552,000
400,000
362,000
374,000
380,000
192,000
139,000
323,000
349,000
370,000
289,000
279,000
270,000
258,000
48,000
53,000
236,000
278,000
282,000
235,000
177,000
173,000
216,000
301,000
301,000
208,000
242,000
249,000
252,000
232,000
235,000
$
5,753,000
$
4,919,000
$
4,924,000
Federal
State
Total
$
788,000
$
459,000
$
1,247,000
(1,002,000
)
(457,000
)
(1,459,000
)
$
(214,000
)
$
2,000
$
(212,000
)
Table of Contents
(Continued)
13.
Federal
State
Total
$
2,374,000
$
915,000
$
3,289,000
(587,000
)
(200,000
)
(787,000
)
$
1,787,000
$
715,000
$
2,502,000
$
2,736,000
$
916,000
$
3,652,000
(434,000
)
(22,000
)
(456,000
)
$
2,302,000
$
894,000
$
3,196,000
December 31,
2008
2007
$
2,871,000
$
1,586,000
160,000
1,713,000
1,668,000
302,000
297,000
76,000
369,000
70,000
5,255,000
3,857,000
$
(117,000
)
$
(139,000
)
(944,000
)
(1,085,000
)
(351,000
)
(353,000
)
(152,000
)
(223,000
)
(189,000
)
(161,000
)
(1,976,000
)
(1,738,000
)
$
3,279,000
$
2,119,000
Table of Contents
(Continued)
13.
2008
2007
2006
34.0
%
34.0
%
34.0
%
1.7
%
7.0
%
7.0
%
(256.3
)%
(3.2
)%
(2.3
)%
(125.1
)%
(1.7
)%
(1.3
)%
114.7
%
1.1
%
0.7
%
(231.0
)%
37.2
%
38.1
%
14.
$
750,000
828,000
(194,000
)
$
1,384,000
$
671,000
Table of Contents
(Continued)
15.
•
•
Table of Contents
(Continued)
16.
Before
Tax
Benefit
After
Tax
(Expense)
Tax
$
1,138,000
$
(470,000
)
$
668,000
(415,000
)
171,000
(244,000
)
$
723,000
$
(299,000
)
$
424,000
$
996,000
$
(411,000
)
$
585,000
$
679,000
$
(280,000
)
$
399,000
Table of Contents
(Continued)
17.
December 31, 2008
December 31, 2007
Gross Carrying
Accumulated
Gross Carrying
Accumulated
Amount
Amortization
Amount
Amortization
$
1,709,000
$
888,000
$
2,983,000
$
1,946,000
Year Ending December 31,
$
173,000
173,000
173,000
173,000
129,000
$
821,000
Table of Contents
(Continued)
18.
2008
2007
$
662,000
$
698,000
44,672,000
46,345,000
576,000
541,000
$
45,910,000
$
47,584,000
$
163,000
$
135,000
10,310,000
10,310,000
10,473,000
10,445,000
5,302,000
5,042,000
29,818,000
32,204,000
317,000
(107,000
)
35,437,000
37,139,000
$
45,910,000
$
47,584,000
2008
2007
2006
$
3,000,000
$
4,300,000
19,000
18,000
$
24,000
3,019,000
4,318,000
24,000
623,000
835,000
810,000
730,000
765,000
793,000
1,353,000
1,600,000
1,603,000
1,666,000
2,718,000
(1,579,000
)
(1,911,000
)
896,000
6,183,000
(245,000
)
3,614,000
4,604,000
549,000
609,000
598,000
$
304,000
$
4,223,000
$
5,202,000
Table of Contents
(Continued)
18.
2008
2007
2006
$
304,000
$
4,223,000
$
5,202,000
1,911,000
(896,000
)
(6,183,000
)
(9,000
)
(61,000
)
58,000
164,000
174,000
(35,000
)
118,000
307,000
28,000
50,000
69,000
2,266,000
3,650,000
(492,000
)
(1,153,000
)
(1,491,000
)
(1,302,000
)
68,000
73,000
181,000
9,000
61,000
(1,217,000
)
(2,400,000
)
(2,302,000
)
(3,809,000
)
(1,060,000
)
(36,000
)
(159,000
)
(1,552,000
)
698,000
857,000
2,409,000
$
662,000
$
698,000
$
857,000
$
424,000
$
585,000
$
399,000
$
70,000
$
417,000
$
9,000
$
61,000
Table of Contents
(Continued)
19.
Table of Contents
(Continued)
19.
Table of Contents
ITEM 9.
Table of Contents
ITEM 12.
Table of Contents
ITEM 13.
3.1
3.2
3.3
3.4
4
4.1
10.1
10.2
10.5
10.6
Table of Contents
10.7
10.8
10.11
10.18
10.19
10.20
10.21
10.22
10.24
10.25
10.27
10.28
10.33
10.34
10.35
10.36
Table of Contents
10.40
10.41
10.43
10.44
10.46
10.47
10.48
10.49
10.50
10.51
10.52
10.53
10.54
10.55
10.56
10.57
10.58
10.64
Table of Contents
10.65
10.67
10.69
10.70
11
21.01
21.02
21.03
23
31.1
31.2
32.1
32.2
Table of Contents
PLUMAS BANCORP
(Registrant)
Date: March 18, 2009
/s/ D. N. BIDDLE
Douglas N. Biddle
President/Chief Executive Officer
/s/ ANDREW RYBACK
Andrew J. Ryback
Executive Vice President/Chief Financial Officer
Table of Contents
Dated: March 18, 2009
Dated: March 18, 2009
Dated: March 18, 2009
Dated: March 18, 2009
Dated: March 18, 2009
Dated: March 18, 2009
Dated: March 18, 2009
Dated: March 18, 2009
Dated:
March 18, 2009
Table of Contents
Exhibit
Number
Description
3.1
3.2
3.3
3.4
4
4.1
10.1
10.2
10.5
10.6
10.7
10.8
10.11
10.18
10.19
Table of Contents
Exhibit
Number
Description
10.20
10.21
10.22
10.24
10.25
10.27
10.28
10.33
10.34
10.35
10.36
10.40
10.41
10.43
10.44
10.46
Table of Contents
Exhibit
Number
Description
10.47
10.48
10.49
10.50
10.51
10.52
10.53
10.54
10.55
10.56
10.57
10.58
10.64
10.65
10.67
10.69
10.70
11
Table of Contents
Exhibit
Number
Description
21.01
21.02
21.03
23
31.1
31.2
32.1
32.2
2
3
4
5
| (a) |
to select and remove all the other officers, agents and employees of the corporation,
prescribe any qualifications, powers and duties for them that are consistent with law, the
articles of incorporation or these bylaws, fix their compensation, and require from them
security for faithful service;
|
| (b) |
to conduct, manage and control the affairs and business of the corporation and to make such
rules and regulations therefor not inconsistent with law, the articles of incorporation or
these bylaws, as they may deem best;
|
| (c) |
to adopt, make and use a corporate seal, to prescribe the forms of certificates of stock, and
to alter the form of such seal and of such certificates from time to time as in their judgment
they may deem best;
|
| (d) |
to authorize the issuance of shares of stock of the corporation from time to time, upon such
terms and for such consideration as may be lawful;
|
6
| (e) |
to borrow money and incur indebtedness for the purposes of the corporation, and to cause to
be executed and delivered therefor, in the corporate name, promissory and capital notes,
bonds, debentures, deeds of trust, mortgages, pledges, hypothecations or other evidences of
debt and securities therefor and any agreements pertaining thereto;
|
| (f) |
to prescribe the manner in which and the person or persons by whom any or all of the checks,
drafts, notes, contracts and other corporate instruments shall be executed;
|
| (g) |
to appoint and designate, by resolution adopted by a majority of the authorized number of
directors, one or more committees, each consisting of two or more directors, including the
appointment of alternate members of any committee who may replace any absent member at any
meeting of the committee; and
|
| (h) |
generally, to do and perform every act or thing whatever that may pertain to or be authorized
by the board of directors of a corporation incorporated under the laws of this state.
|
7
8
9
10
| (a) |
Except if the corporation has a classified board, no director may be removed (unless the
entire board is removed) when the votes cast against removal, or not consenting in writing to
the removal, would be sufficient to elect the director if voted cumulatively at an election at
which the same total number of votes were cast (or, if the action is taken by written consent,
all shares entitled to vote were voted) and the entire number of directors authorized at the
time of the director’s most recent election were then being elected.
|
| (b) |
When by the provisions of the articles the holders of the shares of any class or series,
voting as a class or series, are entitled to elect one or more directors, any director so
elected may be removed only by the applicable vote of the holders of the shares of that class
or series.
|
| (c) |
When the corporation has a classified board, a director may not be removed if the votes cast
against removal of the director, or not consenting in writing to the removal, would be
sufficient to elect the director if voted cumulatively (without regard to whether shares may
otherwise be voted cumulatively) at an election at which the same total number of votes were
cast (or, if the action is taken by written consent, all shares entitled to vote were voted)
and either the number of directors elected at the most recent annual meeting of shareholders,
or if greater, the number of directors for whom removal is being sought, were then being
elected.
|
11
12
13
| (a) |
“Agent”: A director, officer, employee or agent of the corporation or a person who is or was
serving at the request of the corporation as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust, or other enterprise
(including service with respect to employee benefit plans and service on creditors’ committees
with respect to any proceeding under the Bankruptcy Code, assignment for the benefit of
creditors or other liquidation of assets of a debtor of the corporation), or a person who was
a director, officer, employee or agent of a foreign or domestic corporation which was a
predecessor corporation of the corporation or of another enterprise at the request of the
predecessor corporation.
|
| (b) |
“Loss”: All expenses, liabilities, and losses including attorneys’ fees, judgments, fines,
ERISA excise taxes and penalties, amounts paid or to be paid in settlement, any interest,
assessments, or other charges imposed thereon, and any federal, state, local, or foreign taxes
imposed on any Agent as a result of the actual or deemed receipt of any payments under this
Article.
|
| (c) |
“Proceeding”: Any threatened, pending or completed action, suit or proceeding including any
and all appeals, whether civil, criminal, administrative or investigative.
|
14
15
| (a) |
A shareholder or shareholders of the corporation holding at least five percent (5%) in the
aggregate of the outstanding voting shares of the corporation or who hold at least one percent
(1%) of the outstanding voting shares and have filed a Schedule 14B with the United States
Securities and Exchange Commission relating to the election of directors of the corporation
shall have an absolute right to do either or both of the following:
|
| (i) |
inspect and copy the record of shareholders’ names and addresses and
shareholdings during usual business hours upon five business days’ prior written demand
upon the corporation; or
|
16
| (ii) |
obtain from the transfer agent, if any, for the corporation, upon written demand
and upon the tender of its usual charges for such a list (the amount of which charges
shall be stated to the shareholder by the transfer agent upon request), a list of the
shareholders’ names and addresses who are entitled to vote for the election of directors
and their shareholdings, as of the most recent record date for which it has been
compiled, or as of a date specified by the shareholder subsequent to the date of demand.
The corporation shall have a responsibility to cause the transfer agent to comply with
this Section 6.1;
|
| (b) |
The record of shareholders shall also be open to inspection and copying by any shareholder or
holder of a voting trust certificate at any time during usual business hours upon written
demand on the corporation, for a purpose reasonably related to such holder’s interest as a
shareholder or holder of a voting trust certificate. A written demand for such inspection
shall be accompanied by a statement in reasonable detail of the purpose of the inspection.
|
| (c) |
The accounting books and records and minutes of proceedings of the shareholders and the board
and committees of the board shall be open to inspection upon written demand on the corporation
by any shareholder or holder of a voting trust certificate at any reasonable time during usual
business hours, for a purpose reasonably related to such holder’s interest as a shareholder or
as a holder of such voting trust certificate. The right of inspection created by this Section
6.1(c) shall extend to the records of each subsidiary of the corporation. A written demand for
such inspection shall be accompanied by a statement in reasonable detail of the purpose of the
inspection.
|
| (d) |
Any inspection and copying under this Section 6.1 may be made in person or by agent or
attorney.
|
17
18
19
| 1. |
That I am the duly elected and acting secretary of Plumas, a California corporation; and
|
| 2. |
That the foregoing Bylaws, comprising 19 pages, constitute the Bylaws of Plumas Bancorp as
duly adopted by action of the board of directors of Plumas Bancorp duly taken on January 21,
2009.
|
|
|
||
|
|
Terrance J. Reeson, Secretary |
20
| 1.01 |
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.
|
| 1.02 |
Annual Benefit
. The term “Annual Benefit” shall mean an annual sum of sixty-two
thousand dollars ($62,000) multiplied by the Applicable Percentage (defined below) and then
reduced to the extent required: (i) under the other provisions of this Agreement; (ii) by
reason of the lawful order of any regulatory agency or body having jurisdiction over the
Employer; and (iii) in order for the Employer 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).
|
| 1.03 |
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 as an
employee for a period of three hundred sixty-five (365) days) which have elapsed starting from
the Effective Date of this Agreement and ending on the date payments are to first begin under
the terms of this Agreement. In the event that Executive’s employment with Employer is
terminated other than by reason of disability, Normal Retirement, Retirement or voluntary
termination on the part of Executive, Executive shall be deemed for purposes of determining
the number of complete years to have completed a year of service in its entirety for any
partial year of service after the last anniversary date of the Effective Date during which the
Executive’s employment is terminated.
|
-2-
| 1.04 |
Code
. “Code” shall mean the Internal Revenue Code of 1986, as amended.
|
| 1.05 |
Disability/Disabled
. The term “Disability” or “Disabled” shall mean the Executive:
(i) is unable to engage in any substantial gainful activity by reason of any medically
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 twelve (12) months; or (ii) is, by
reason of any medically 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 twelve
(12) months, receiving income replacement benefits for a period of not less than three (3)
months under an accident and health plan covering employees or directors of the Employer.
Medical determination of Disability may be made by either the Social Security Administration
or by the provider of an accident or health plan covering employees or directors of the
Employer provided that the definition of “disability” applied under such disability insurance
program complies with the requirements of the preceding sentence. Upon the request of the
plan administrator, the Executive must submit proof to the plan administrator of the Social
Security Administration’s or the provider’s determination.
|
| 1.06 |
Early Retirement Date
. The term “Early Retirement Date” shall mean the Retirement
(as defined below) of the Executive on a date which occurs after the date Executive reaches
age sixty (60) and prior to the date Executive reaches age sixty-five (65).
|
| 1.07 |
Effective Date
. The term “Effective Date” shall mean the date upon which this
Agreement was entered into by the parties, as first written above.
|
| 1.08 |
ERISA
. The term “ERISA” shall mean the Employee Retirement Income Security Act of
1974, as amended.
|
| 1.10 |
Retirement/Retires
. The term “Retirement” or “Retires” shall mean the date
acknowledged in Executive’s written notice to the Employer of the Executive’s Termination of
Employment.
|
-3-
| 1.11 |
Specified Employee
. The term “Specified Employee” shall mean an employee who at the
time of Termination of Employment is a key employee of the Employer, if any stock of the
Employer is publicly traded on an established securities market or otherwise. For purposes of
this Agreement, an employee is a key employee if the employee meets the requirements of Code
section 416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder
and disregarding section 416(i)(5)) at any time during the twelve (12) month period ending on
December 31 (the “identification period”). If the employee is a key employee during an
identification period, the employee is treated as a key employee for purposes of this
Agreement during the twelve (12) month period that begins on the first day of April following
the close of the identification period.
|
| 1.12 |
Termination of Employment
. “Termination of Employment” shall mean termination of the
Executive’s employment with the Employer for reasons other than death or Disability. Whether
a Termination of Employment has occurred is determined based on whether the facts and
circumstances indicate that the Employer and the Executive reasonably anticipated that no
further services would be performed after a certain date or that the level of bona fide
services the Executive would perform after such date (whether as an employee or as an
independent contractor) would permanently decrease to no more than twenty percent (20%) of the
average level of bona fide services performed (whether as an employee or an independent
contractor) over the immediately preceding thirty-six (36) month period (or the full period of
services to the Employer if the Executive has been providing services to the Employer less
than thirty-six (36) months).
|
| 1.13 |
Unforeseeable Emergency
. The term “Unforeseeable Emergency” shall mean a severe
financial hardship to the Executive resulting from an illness or accident of the Executive,
the Executive’s spouse, the Beneficiary, or the Executive’s dependent (as defined in section
152(a) of the Code), loss of the Executive’s property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of events beyond the control
of the Executive.
|
| 2.01 |
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.
|
-4-
| 2.02 |
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.
|
| 3.01 |
Payments Upon Retirement
. If the Executive shall remain in the continuous employment
of the Employer until attaining sixty-five (65) years of age, the Executive shall be entitled
to be paid, as his normal retirement benefit, the Annual Benefit, as defined above, for a
period of fifteen (15) years, in one hundred eighty (180) equal monthly installments, 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.
|
| 3.02 |
Payments in the Event of Death After Retirement
. In the event of Executive’s death
following Retirement, no death benefit shall be provided under this Agreement.
|
| 4.01 |
Payments in the Event of Death Prior to Retirement
. In the event of Executive’s
death prior to Retirement, no death benefit shall be provided under this Agreement.
|
| 4.02 |
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: (i) continue to be treated during
such period of Disability as being gainfully employed by the Employer, but shall not add
applicable years of service for the purpose of determining the Annual Benefit; and (ii) be
entitled to be paid the Annual Benefit for fifteen (15) years, as determined by the applicable
years of service at the time of Disability in one hundred eighty (180) equal monthly
installments, 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-five (65)
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. Upon
Executive’s death, no further payments will be made under this Article 4.02.
|
-5-
| 5.01 |
Payments in the Event Employment is Terminated Other than by Death, Disability,
Retirement or a Change of Control of the Employer
. As indicated in Article 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
for any reason, including voluntary Termination of Employment by the Executive, but other than
by reason of Disability, Retirement, or a Change of Control of the Employer as set forth in
Article 5.02, the Executive or his legal representative shall be entitled to be paid the
Annual Benefit for a period of fifteen (15) years, as determined by the applicable years of
service at the time of the Executive’s Termination of Employment with the Employer, in one
hundred eighty (180) equal monthly installments, with each installment to 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.
|
| 5.02 |
Termination of Employment in the Event of a Change of Control
. A “Terminating Event”
shall be defined as a change in the ownership or effective control of the Employer, or in the
ownership of a substantial portion of the assets of the Employer, as such change is defined in
section 409A of the Code and regulations thereunder.
|
-6-
| 7.01 |
Hardship Distribution
. The Employer may make a hardship distribution under the
circumstances described in Article 7.02 below. Any such distribution shall require the
adjustment described in Article 7.03 to any amounts to be paid under Articles 3, 4, 5 or 6.
|
| 7.02 |
Application for and Amount of Hardship Distribution
. If an Unforeseeable Emergency
occurs, the Executive may petition the Board to receive a distribution from the Agreement (a
“Hardship Distribution”). The Board, in its sole discretion, may grant such petition. If
granted, the Executive shall receive, within sixty (60) days, a Hardship Distribution from the
Agreement only to the extent deemed necessary by the Board to
remedy the Unforeseeable Emergency, plus an amount necessary to pay taxes reasonably
anticipated as a result of the distribution. In any event, the maximum amount which may be
paid out pursuant to this Article is the vested Annual Benefit as of the day that the
Executive petitioned the Board to receive a Hardship Distribution under this Article.
|
-7-
| 7.03 |
Benefit Adjustment
. At the time of any Hardship Distribution, the vested Annual
Benefit shall be reduced by the amount of the Hardship Distribution and the benefits to be
paid under Articles 3, 4, 5 or 6 hereof shall reflect such reduced amount.
|
| (a) |
may not accelerate the time or schedule of any distribution, except as
provided in Code section 409A and the regulations thereunder;
|
| (b) |
must, for benefits distributable under Articles 3 and 6, be made at least
twelve (12) months prior to the first scheduled distribution;
|
| (c) |
must, for benefits distributable under Articles 3, 5 and 6, delay the
commencement of distributions for a minimum of five (5) years from
the date the first distribution was originally scheduled to be made;
and
|
| (d) |
must take effect not less than twelve (12) months after the election is made.
|
-8-
-9-
| 15.01 |
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.
|
| 15.02 |
Arbitration of Disputes
. All claims, disputes and other matters 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 111 Pine Street, Suite 710, San Francisco, California. 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 417 Montgomery Street,
|
-10-
| 15.03 |
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.
|
| 15.04 |
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.
|
|
If to the Employer:
|
Plumas Bank | |
|
|
35 S. Lindan Ave. | |
|
|
Quincy, CA 95971 | |
|
|
Attn: Mr. Daniel E. West | |
|
|
||
|
If to the Executive:
|
Andrew J. Ryback | |
|
|
5026 Chandler Road | |
|
|
Quincy CA 95971 |
-11-
| 15.05 |
Assignment
. Neither the Executive nor any other beneficiary under this Agreement
shall have any power or right to transfer, assign, 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.
|
| 15.06 |
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.
|
| 15.07 |
Nonwaiver
. The failure of either party to enforce at any time or for any period of
time anyone 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.
|
| 15.08 |
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.
|
-12-
| 15.09 |
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.
|
| 15.10 |
Amendments
. Except as otherwise provided in this Article or Articles 15.14 and
15.15, below, this Agreement may be amended only by a written agreement signed by the Employer
and the Executive. However, the Employer may unilaterally amend this Agreement to conform
with written directives to the Employer from its auditors or banking regulators or to comply
with legislative changes or tax law, including without limitation section 409A of the Code and
any and all Treasury regulations and guidance promulgated thereunder.
|
| 15.11 |
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.
|
| 15.12 |
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.
|
| 15.13 |
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 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.
|
| 15.14 |
Plan Termination Generally
. Except as otherwise provided in Article 15.15, this
Agreement may be terminated only by a written agreement signed by the Employer and the
Executive. The benefit hereunder shall be the vested Annual Benefit as of the date the
Agreement is terminated. Except as provided in Article 15.15, the termination of this
Agreement shall not cause a distribution of benefits under this Agreement. Rather,
after such termination benefit distributions will be made at the earliest distribution
event permitted under Articles 3, 4, 5 or 6.
|
-13-
| 15.15 |
Plan Terminations Under Section 409A
. Notwithstanding anything to the contrary
herein, this Agreement may be terminated by the Employer or its successor, and distributions
hereunder accelerated as provided below in the following circumstances:
|
| (a) |
Within thirty (30) days before or twelve (12) months after a change in the
ownership or effective control of the Employer, or in the ownership of a substantial
portion of the assets of the Employer as described in section 409A(2)(A)(v) of the
Code, provided that all distributions are made no later than twelve (12) months
following such termination of the Agreement and further provided that all the
Employer’s arrangements which are substantially similar to the Agreement are
terminated so the Executive and all participants in the similar arrangements are
required to receive all amounts of compensation deferred under the terminated
arrangements within twelve (12) months of the such terminations;
|
| (b) |
Upon the Employer’s dissolution or with the approval of a bankruptcy court
provided that the amounts deferred under the Agreement are included in the Executive’s
gross income in the latest of: (i) the calendar year in which the Agreement
terminates; (ii) the calendar year in which the amount is no longer subject to a
substantial risk of forfeiture; or (iii) the first calendar year in which the
distribution is administratively practical; or
|
| (c) |
Upon the Employer’s termination of this and all other arrangements that would
be aggregated with this Agreement pursuant to Treasury Regulations section 1.409A-1(c)
if the Executive participated in such arrangements (“Similar Arrangements”), provided
that: (i) the termination and liquidation does not occur proximate to a downturn in
the financial health of the Employer, (ii) all termination distributions are made no
earlier than twelve (12) months and no later than twenty-four (24) months following
such termination, and (iii) the Employer does not adopt any new arrangement that would
be a Similar Arrangement for a minimum of three (3) years following the date the
Employer takes all necessary action to irrevocably terminate and liquidate the
Agreement;
|
-14-
| 15.16 |
Compliance with Code Section 409A
. This Agreement shall be interpreted and
administered consistent with Code section 409A.
|
|
THE EMPLOYER:
|
THE EXECUTIVE: | |||
|
|
||||
|
PLUMAS BANK
|
||||
|
A California Corporation
|
||||
|
|
||||
|
/s/ Daniel E. West
|
/s/ Andrew J. Ryback | |||
|
|
|
|||
|
Chairman of the Board
|
||||
|
|
||||
|
/s/ Terrence J. Reeson
|
||||
|
|
||||
|
Vice-Chairman of the Board
|
-15-
| NUMBER OF COMPLETED | ||||
| YEARS OF SERVICE | APPLICABLE | |||
| WHICH HAVE ELAPSED | PERCENTAGE | |||
|
|
||||
|
1
|
4.5 | % | ||
|
2
|
9.0 | % | ||
|
3
|
13.5 | % | ||
|
4
|
18.0 | % | ||
|
5
|
22.5 | % | ||
|
6
|
27.0 | % | ||
|
7
|
31.5 | % | ||
|
8
|
36.0 | % | ||
|
9
|
41.5 | % | ||
|
10
|
45.0 | % | ||
|
11
|
49.5 | % | ||
|
12
|
54.0 | % | ||
|
13
|
58.5 | % | ||
|
14
|
63.0 | % | ||
|
15
|
67.5 | % | ||
|
16
|
72.0 | % | ||
|
17
|
76.5 | % | ||
|
18
|
81.0 | % | ||
|
19
|
85.5 | % | ||
|
20
|
90.0 | % | ||
|
21
|
92.0 | % | ||
|
22
|
94.0 | % | ||
|
23
|
96.0 | % | ||
|
24
|
98.0 | % | ||
|
25 or more years
|
100 | % | ||
-16-
| 1.1 |
“
Accrual Balance
” means the liability that should be accrued by the Bank, under
Generally Accepted Accounting Principles (“GAAP”), for the Bank’s obligation to the Executive
for the Normal Retirement Benefit under this Agreement, by applying Accounting Principles
Board Opinion Number 12 as amended by Statement of Financial Accounting Standards Number 106
and the Discount Rate as of the last day of the month prior to Separation from Service or as
of the end of the month preceding the Executive’s
death, as the case may be. Any one of a variety of amortization methods may be used to
determine the Accrual Balance. Once chosen, the method must be consistently applied.
|
| 1.2 |
“
Beneficiary
” means each designated person or entity, or the estate of the deceased
Executive, entitled to any benefits upon the death of the Executive pursuant to Article 4.
|
| 1.3 |
“
Beneficiary Designation Form
” means the form established from time to time by the
Plan Administrator that the Executive completes, signs and returns to the Plan Administrator
to designate one or more Beneficiaries.
|
| 1.4 |
“
Board
” means the Board of Directors of the Bank as from time to time constituted.
|
| 1.5 |
“
Change in Control
” means a change in the ownership or effective control of the Bank,
or in the ownership of a substantial portion of the assets of the Bank, as such change is
defined in Code Section 409A and regulations thereunder.
|
| 1.6 |
“
Code
” means the Internal Revenue Code of 1986, as amended, and all regulations and
guidance thereunder.
|
| 1.7 |
“
Discount Rate
” means the rate used by the Plan Administrator for determining the
Accrual Balance. The initial Discount Rate is six percent (6%). However, the Plan
Administrator shall adjust the Discount Rate in order to maintain the Discount Rate within
reasonable standards according to GAAP and/or applicable bank regulatory guidance, as passed
on by the Bank’s independent auditor engaged to audit the financial statements of the Bank.
The Discount Rate will be reviewed at least annually, and if and when changed will be
applicable as to the determination of a benefit calculation under this Agreement on a
prospective basis only. Executive acknowledges that a change in the Discount Rate may
increase or decrease the Accrual Balance which may affect her benefits hereunder.
|
| 1.8 |
“
Early Termination
” means Separation from Service before attainment of Normal
Retirement Age except when such Separation from Service occurs within twenty-four (24) months
following a Change in Control or due to death or Termination for Cause.
|
| 1.9 |
“
Effective Date
” means April 1, 2008.
|
| 1.10 |
“
Normal Retirement Age
” means the Executive’s age sixty-five (65).
|
| 1.11 |
“
Plan Administrator
” means the Board or such committee or person as the Board shall
appoint.
|
| 1.12 |
“
Plan Year
” means each twelve (12) month period commencing on January 1 and ending on
December 31 of each year. The initial Plan Year shall commence on the Effective Date of this
Agreement and end on the following December 31.
|
| 1.13 |
“
Schedule A
” means the schedule attached to this Agreement and made a part hereof
illustrating the current calculation of Executive’s benefits under this Agreement. Schedule A
shall be updated upon a change in any of the benefits under Articles 2 or 3 as a result of a
change in the Discount Rate.
|
| 1.14 |
“
Separation from Service
” means termination of the Executive’s employment with the
Bank for reasons other than death. Whether a Separation from Service has occurred is
determined in accordance with the requirements of Code Section 409A based on whether the facts
and circumstances indicate that the Bank and Executive reasonably anticipated that no further
services would be performed after a certain date or that the level of bona fide services the
Executive would perform after such date (whether as an employee or as an independent
contractor) would permanently decrease to no more than twenty percent (20%) of the average
level of bona fide services performed (whether as an employee or an independent contractor)
over the immediately preceding thirty-six (36) month period (or the full period of services to
the Bank if the Executive has been providing services to the Bank less than thirty-six (36)
months).
|
| 1.15 |
“
Specified Employee
” means an employee who at the time of Separation from Service is
a key employee of the Bank, if any stock of the Bank is publicly traded on an established
securities market or otherwise. For purposes of this Agreement, an employee is a key employee
if the employee meets the requirements of Code Section 416(i)(1)(A)(i), (ii), or (iii)
(applied in accordance with the regulations thereunder and disregarding section 416(i)(5)) at
any time during the twelve (12) month period ending on December 31 (the “identification
period”). If the employee is a key employee during an identification period, the employee is
treated as a key employee for purposes of this Agreement during the twelve (12) month period
that begins on the first day of April following the close of the identification period.
|
| 1.16 |
“
Termination for Cause
” means Separation from Service for:
|
| (a) |
Gross negligence or gross neglect of duties to the Bank;
|
| (b) |
Conviction of a felony or of a gross misdemeanor involving moral turpitude in
connection with the Executive’s employment with the Bank; or
|
| (c) |
Fraud, disloyalty, dishonesty or willful violation of any law or significant
Bank policy committed in connection with the Executive’s employment and resulting in a
material adverse effect on the Bank.
|
| 2.1 |
Normal Retirement Benefit
. Upon Separation from Service after attaining Normal
Retirement Age, the Bank shall distribute to the Executive the benefit described in this
Section 2.1 in lieu of any other benefit under this Article.
|
| 2.1.1 |
Amount of Benefit
. The annual benefit under this Section 2.1 is
Sixty-Two
Thousand Dollars ($62,000).
|
| 2.1.2 |
Distribution of Benefit
. The Bank shall distribute the annual benefit
to the Executive in twelve (12) equal monthly installments commencing on the first day
of the month following Separation from Service. The annual benefit shall be
distributed to the Executive for fifteen (15) years.
|
| 2.2 |
Early Termination Benefit
. If Early Termination occurs, the Bank shall distribute to
the Executive the benefit described in this Section 2.2 in lieu of any other benefit under
this Article.
|
| 2.2.1 |
Amount of Benefit
. The benefit under this Section 2.2 is the Accrual
Balance calculated as of the last day of the month prior to Separation from Service.
An illustration of the year-end Accrual Balance using the current Discount Rate is set
forth in Schedule A.
|
| 2.2.2 |
Distribution of Benefit
. The Bank shall distribute the benefit to the
Executive in one hundred eighty (180) equal monthly installments commencing on the
first day of the month following Normal Retirement Age. The Accrual Balance shall
continue to accrue earnings at the Discount Rate until all monthly installments are
completely distributed.
|
| 2.3 |
Change in Control Benefit
. If a Change in Control occurs followed within twenty-four
(24) months by Separation from Service, the Bank shall distribute to the Executive the benefit
described in this Section 2.3 in lieu of any other benefit under this Article.
|
| 2.3.1 |
Amount of Benefit
. The annual benefit under this Section 2.3 is the
Normal Retirement Benefit amount described in 2.1.1.
|
| 2.3.2 |
Distribution of Benefit
. The Bank shall distribute the annual benefit
to the Executive in twelve (12) equal monthly installments commencing on the first day
of the month following Separation from Service. The annual benefit shall be
distributed to the Executive for fifteen (15) years.
|
| 2.4 |
Restriction on Commencement of Distributions
. Notwithstanding any provision of this
Agreement to the contrary, if the Executive is considered a Specified Employee at the time of
her Separation from Service the provisions of this Section 2.4 shall govern distributions on
account of such Executive’s Separation from Service. If benefit distributions which would
otherwise be made to the Executive due to Separation from Service are limited because the
Executive is a Specified Employee, then such distributions shall not be made during the first
six (6) months following Separation from Service. Rather, any distribution which would
otherwise be paid to the Executive during such period shall be accumulated and paid to the
Executive in a lump sum on the first day of the seventh month following Separation from
Service. All subsequent distributions shall be paid in the manner specified.
|
| 2.5 |
Distributions Upon Taxation of Amounts Deferred
. If, pursuant to Code Section 409A,
the Federal Insurance Contributions Act or other state, local or foreign tax laws, the
Executive becomes subject to tax on the amounts deferred hereunder, then the Bank may make a
limited distribution to the Executive in a manner that conforms to the requirements of Code
section 409A. Any such distribution will decrease the Executive’s benefits distributable
under this Agreement.
|
| 2.6 |
Change in Form or Timing of Distributions
. For distribution of benefits under this
Article 2, the Executive and the Bank may, subject to the terms of Section 8.1, amend this
Agreement to delay the timing or change the form of distributions. Any such amendment:
|
| (a) |
may not accelerate the time or schedule of any distribution,
except as provided in Code Section 409A;
|
| (b) |
must, for benefits distributable under Section 2.2, be made at
least twelve (12) months prior to the first scheduled distribution;
|
| (c) |
must, for benefits distributable under Sections 2.1, 2.2 and
2.3, delay the commencement of distributions for a minimum of five (5) years
from the date the first distribution was originally scheduled to be made;
and
|
| (d) |
must take effect not less than twelve (12) months after the
amendment is made.
|
| 3.1 |
Death During Active Service
. If the Executive dies prior to Separation from Service,
the Bank shall distribute to the Beneficiary the benefit described in this Section 3.1. This
benefit shall be distributed in lieu of any benefit under Article 2.
|
| 3.1.1 |
Amount of Benefit
. The benefit under this Section 3.1 is the
Executive’s Accrual Balance calculated as of the end of the month preceding the
Executive’s death. An illustration of the year-end Accrual Balance using the current
Discount Rate is set forth in Schedule A.
|
| 3.1.2 |
Distribution of Benefit
. The Bank shall distribute the benefit to the
Beneficiary in one hundred eighty (180) equal monthly installments commencing on the
first day of the fourth month following the Executive’s death. The Accrual Balance
shall continue to accrue earnings at the Discount Rate until the installments are
completely distributed. The Beneficiary shall be required to provide the Executive’s
death certificate to the Bank.
|
| 3.2 |
Death During Distribution of a Benefit
. If the Executive dies after any benefit
distributions have commenced under this Agreement but before receiving all such
distributions, the Bank shall distribute to the Beneficiary the remaining benefits at the
same time and in the same amounts they would have been distributed to the Executive had the
Executive survived.
|
| 3.3 |
Death Before Benefit Distributions Commence
. If the Executive is entitled to benefit
distributions under this Agreement but dies prior to the date of commencement of said benefit
distributions, the Bank shall distribute to the Beneficiary the same benefits to which the
Executive was entitled prior to death, except that the benefit distributions shall be paid in
the manner specified in Section 3.1.2 and shall commence on the first day of the fourth month
following the Executive’s death.
|
| 4.1 |
In General
. The Executive shall have the right, at any time, to designate a
Beneficiary to receive any benefit distributions under this Agreement upon the death of the
Executive. The Beneficiary designated under this Agreement may be the same as or different
from the beneficiary designated under any other plan of the Bank in which the Executive
participates.
|
| 4.2 |
Designation
. The Executive shall designate a Beneficiary by completing and signing
the Beneficiary Designation Form and delivering it to the Plan Administrator or its designated
agent. If the Executive names someone other than the Executive’s spouse as a Beneficiary, the
Plan Administrator may, in its sole discretion, determine that spousal consent is required to
be provided in a form designated by the Plan Administrator, executed by the Executive’s spouse
and returned to the Plan Administrator. The Executive’s beneficiary designation shall be
deemed automatically revoked if the Beneficiary predeceases the Executive or if the Executive
names a spouse as Beneficiary and the marriage is subsequently dissolved. However, nothing in
the foregoing sentence shall preclude the Executive from executing a new Beneficiary
Designation Form after the date the marriage is dissolved that names her former spouse as a
Beneficiary. The Executive shall have the right to change a Beneficiary by completing,
signing and otherwise complying with the terms of the Beneficiary Designation Form and the
Plan Administrator’s rules and procedures. Upon the acceptance by the Plan Administrator of a
new Beneficiary Designation Form, all Beneficiary designations previously filed shall be
cancelled. The Plan Administrator shall be entitled to rely on the last Beneficiary
Designation Form filed by the Executive and accepted by the Plan Administrator prior to the
Executive’s death.
|
| 4.3 |
Acknowledgment
. No designation or change in designation of a Beneficiary shall be
effective until received, accepted and acknowledged in writing by the Plan Administrator or
its designated agent.
|
| 4.4 |
No Beneficiary Designation
. If the Executive dies without a valid beneficiary
designation, or if all designated Beneficiaries predecease the Executive, then the
Executive’s spouse shall be the designated Beneficiary. If the Executive has no surviving
spouse, any benefit shall be paid to the Executive’s estate.
|
| 4.5 |
Facility of Distribution
. If the Plan Administrator determines in its discretion
that a benefit is to be distributed to a minor, to a person declared incompetent or to a
person incapable of handling the disposition of that person’s property, the Plan Administrator
may direct distribution of such benefit to the guardian, legal representative or person having
the care or custody of such individual. The Plan Administrator may require proof of
incompetence, minority or guardianship as it may deem appropriate prior to distribution of the
benefit. Any distribution of a benefit shall be a distribution for the account of the
Executive and the Beneficiary, as the case may be, and shall completely discharge any
liability under this Agreement for such distribution amount.
|
| 5.1 |
Termination for Cause
. Notwithstanding any provision of this Agreement to the
contrary, the Bank shall not distribute any benefit under this Agreement if the Executive’s
employment with the Bank is terminated by the Bank or an applicable regulator due to a
Termination for Cause.
|
| 5.2 |
Suicide or Misstatement
. No benefit shall be distributed if the Executive commits
suicide within two (2) years after the Effective Date, or if an insurance company which issued
a life insurance policy covering the Executive and owned by the Bank denies coverage (i) for
material misstatements of fact made by the Executive on an application for such life
insurance, or (ii) for any other reason.
|
| 5.3 |
Removal
. Notwithstanding any provision of this Agreement to the contrary, the Bank
shall not distribute any benefit under this Agreement if the Executive is subject to a final
removal or prohibition order issued by an appropriate federal banking agency pursuant to
Section 8(e) of the Federal Deposit Insurance Act.
|
| 5.4 |
Golden Parachute Indemnification Payments
. Notwithstanding anything herein to the
contrary, any payments made to the Executive pursuant to this Agreement, or otherwise, shall
be conditioned upon compliance with 12 U.S.C. 1828 and FDIC Regulation 12 CFR Part 359, Golden
Parachute Indemnification Payments and any other regulations or guidance promulgated
thereunder.
|
| 6.1 |
Plan Administrator Duties
. The Plan Administrator shall administer this Agreement
according to its terms and shall also have the discretion and authority to (i) make, amend,
interpret and enforce all appropriate rules and regulations for the administration of this
Agreement and (ii) decide or resolve any and all questions, including interpretations of
this Agreement, as may arise in connection with this Agreement to the extent the exercise of
such discretion and authority does not conflict with Code Section 409A.
|
| 6.2 |
Agents
. In the administration of this Agreement, the Plan Administrator may employ
agents and delegate to them such administrative duties as the Plan Administrator sees fit,
including acting through a duly appointed representative, and may from time to time consult
with counsel who may be counsel to the Bank.
|
| 6.3 |
Binding Effect of Decisions
. Any decision or action of the Plan Administrator with
respect to any question arising out of or in connection with the administration,
interpretation or application of this Agreement and the rules and regulations promulgated
hereunder shall be final and conclusive and binding upon all persons having any interest in
this Agreement.
|
| 6.4 |
Indemnity of Plan Administrator
. The Bank shall indemnify and hold harmless the Plan
Administrator against any and all claims, losses, damages, expenses or liabilities arising
from any action or failure to act with respect to this Agreement, except in the case of
willful misconduct by the Plan Administrator.
|
| 6.5 |
Bank Information
. To enable the Plan Administrator to perform its functions, the
Bank shall supply full and timely information to the Plan Administrator on all matters
relating to the date and circumstances of the Executive’s death or Separation from Service,
and such other pertinent information as the Plan Administrator may reasonably require.
|
| 6.6 |
Annual Statement
. The Plan Administrator shall provide to the Executive, within one
hundred twenty (120) days after the end of each Plan Year, a statement setting forth the
benefits accrued to date under this Agreement.
|
| 7.1 |
Claims Procedure
. An Executive or Beneficiary (“claimant”) who has not received
benefits under this Agreement that he or she believes should be distributed shall make a claim
for such benefits as follows:
|
| 7.1.1 |
Initiation — Written Claim
. The claimant initiates a claim by
submitting to the Plan Administrator a written claim for the benefits. If such a claim
relates to the contents of a notice received by the claimant, the claim must be made
within sixty (60) days after such notice was received by the claimant. All other
claims must be made within one hundred eighty (180) days of the date on which the event
that caused the claim to arise occurred. The claim must state with particularity the
determination desired by the claimant.
|
| 7.1.2 |
Timing of Plan Administrator Response
. The Plan Administrator shall
respond to such claimant within ninety (90) days after receiving the claim. If the
Plan
Administrator determines that special circumstances require additional time for
processing the claim, the Plan Administrator can extend the response period by an
additional ninety (90) days by notifying the claimant in writing, prior to the end
of the initial ninety (90) day period that an additional period is required. The
notice of extension must set forth the special circumstances and the date by which
the Plan Administrator expects to render its decision.
|
| 7.1.3 |
Notice of Decision
. If the Plan Administrator denies part or all of
the claim, the Plan Administrator shall notify the claimant in writing of such denial.
The Plan Administrator shall write the notification in a manner calculated to be
understood by the claimant. The notification shall set forth:
|
| (a) |
The specific reasons for the denial;
|
| (b) |
A reference to the specific provisions of this Agreement on
which the denial is based;
|
| (c) |
A description of any additional information or material
necessary for the claimant to perfect the claim and an explanation of why it is
needed;
|
| (d) |
An explanation of this Agreement’s review procedures and the
time limits applicable to such procedures; and
|
| (e) |
A statement of the claimant’s right to bring a civil action
under ERISA Section 502(a) following an adverse benefit determination on
review.
|
| 7.2 |
Review Procedure
. If the Plan Administrator denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the Plan Administrator of
the denial as follows:
|
| 7.2.1 |
Initiation — Written Request
. To initiate the review, the claimant,
within sixty (60) days after receiving the Plan Administrator’s notice of denial, must
file with the Plan Administrator a written request for review.
|
| 7.2.2 |
Additional Submissions — Information Access
. The claimant shall then
have the opportunity to submit written comments, documents, records and other
information relating to the claim. The Plan Administrator shall also provide the
claimant, upon request and free of charge, reasonable access to, and copies of, all
documents, records and other information relevant (as defined in applicable ERISA
regulations) to the claimant’s claim for benefits.
|
| 7.2.3 |
Considerations on Review
. In considering the review, the Plan
Administrator shall take into account all materials and information the claimant
submits relating to the claim, without regard to whether such information was submitted
or considered in the initial benefit determination.
|
| 7.2.4 |
Timing of Plan Administrator Response
. The Plan Administrator shall
respond in writing to such claimant within sixty (60) days after receiving the request
for review. If the Plan Administrator determines that special circumstances require
additional time for processing the claim, the Plan Administrator can extend the
response period by an additional sixty (60) days by notifying the claimant in
writing, prior to the end of the initial sixty (60) day period that an additional
period is required. The notice of extension must set forth the special
circumstances and the date by which the Plan Administrator expects to render its
decision.
|
| 7.2.5 |
Notice of Decision
. The Plan Administrator shall notify the claimant
in writing of its decision on review. The Plan Administrator shall write the
notification in a manner calculated to be understood by the claimant. The notification
shall set forth:
|
| (a) |
The specific reasons for the denial;
|
| (b) |
A reference to the specific provisions of this Agreement on
which the denial is based;
|
| (c) |
A statement that the claimant is entitled to receive, upon
request and free of charge, reasonable access to, and copies of, all documents,
records and other information relevant (as defined in applicable ERISA
regulations) to the claimant’s claim for benefits; and
|
| (d) |
A statement of the claimant’s right to bring a civil action
under ERISA Section 502(a).
|
| 8.1 |
Amendments
. Except as provided below under Sections 8.2 and 8.3, this Agreement may
be amended only by a written agreement signed by the Bank and the Executive. However, the
Bank may unilaterally amend this Agreement to conform with written directives to the Bank from
its auditors or banking regulators or to comply with legislative changes or tax law, including
without limitation Code Section 409A.
|
| 8.2 |
Plan Termination Generally
. Except as otherwise provided in Section 8.3, this
Agreement may be terminated only by a written agreement signed by the Bank and the Executive.
The benefit upon termination shall be the Accrual Balance as of the date this Agreement is
terminated. Except as provided in Section 8.3, the termination of this Agreement shall not
cause a distribution of benefits under this Agreement. Rather, upon such termination benefit
distributions will be made at the earliest distribution event permitted under Article 2 or
Article 3.
|
| 8.3 |
Plan Terminations Under Code Section 409A
. Notwithstanding anything to the contrary
in Section 8.2:
|
| (a) |
This Agreement may be terminated at any time by the Bank in its sole and
absolute discretion under the following circumstances, provided, however, that the Bank
shall continue to be obligated to pay the benefits under the Agreement with
respect to compensation which the Executive and the Bank had deferred prior to the
termination of the Agreement, in accordance with the terms of the Agreement as in
effect immediately prior to such termination.
|
| (b) |
The Bank’s discretionary termination of this Agreement under one of the
following circumstances may result in the acceleration of the time and form of payment
to Executive, where the right to payment arises in connection with the Bank’s
discretionary termination of the Agreement:
|
| 1. |
Within twelve (12) months following a corporate dissolution
taxed under Code section 331, or with the approval of a bankruptcy court
pursuant to section 503(b)(1)(A) of Title 11 of the United States Code,
provided that Executive’s benefits under the Agreement are included in
Executive’s income on the latest of:
|
| a. |
The calendar year in which the Agreement terminates;
|
||
| b. |
The calendar year in which the amount is no
longer subject to a substantial risk of forfeiture; or
|
||
| c. |
The first calendar year in which the payment is
administratively practicable;
|
| 2. |
Within the thirty (30) days preceding or the twelve (12) months
following a Change In Control, provided that all substantially similar arrangements
sponsored by the Bank are terminated, such that Executive and all other
participants under substantially similar arrangements are required to receive all
amounts of compensation deferred under the terminated arrangements within twelve
(12) months of the date of termination of the arrangements;
|
| 3. |
Where the termination and liquidation does not occur proximate
to a downturn in the financial health of the Bank and;
|
| a. |
All arrangements sponsored by the Bank, that
would be aggregated with any terminated arrangement under Treasury
regulations section 1.409A-1(c) if Executive participated in all of the
arrangements, are terminated;
|
||
| b. |
No payments, other than payments that would be
payable under the terms of the arrangements if the termination had not
occurred, are made within twelve (12) months of the termination of the
arrangements;
|
||
| c. |
All payments are made within twenty-four (24)
months of the termination of the arrangements; and
|
||
| d. |
The Bank does not adopt a new arrangement, that
would be aggregated with any terminated arrangement under Treasury
regulations section 1.409A-1(c) if Executive participated in both
arrangements, at any time within three (3) years following the date of
termination of the Agreement;
|
| 4. |
Upon such other events and conditions as the Commissioner of
the Internal Revenue Service may prescribe in generally applicable guidance
published in the Internal Revenue Bulletin.
|
| (d) |
If not terminated at an earlier date, this Agreement shall terminate as of the
earliest date on which the Bank’s obligations to the Executive and the Executives’
Beneficiaries have been satisfied.
|
| 9.1 |
Binding Effect
. This Agreement shall bind the Executive and the Bank and their
beneficiaries, survivors, executors, administrators and transferees.
|
| 9.2 |
No Guarantee of Employment
. This Agreement is not a contract for employment. It
does not give the Executive the right to remain as an employee of the Bank nor interfere with
the Bank’s right to discharge the Executive. It does not require the Executive to remain an
employee nor interfere with the Executive’s right to terminate employment at any time.
|
| 9.3 |
Non-Transferability
. Benefits under this Agreement cannot be sold, transferred,
assigned, pledged, attached or encumbered in any manner.
|
| 9.4 |
Tax Withholding and Reporting
. The Bank shall withhold any taxes that are required
to be withheld, including but not limited to taxes owed under Code Section 409A from the
benefits provided under this Agreement. The Executive acknowledges that the Bank’s sole
liability regarding taxes is to forward any amounts withheld to the appropriate taxing
authorities. The Bank shall satisfy all applicable reporting requirements, including those
under Code Section 409A.
|
| 9.5 |
Applicable Law
. This Agreement and all rights hereunder shall be governed by the
laws of the State of California, except to the extent preempted by the laws of the United
States of America.
|
| 9.6 |
Unfunded Arrangement
. The Executive and the Beneficiary are general unsecured
creditors of the Bank for the distribution of benefits under this Agreement. The benefits
represent the mere promise by the Bank to distribute such benefits. The rights to benefits
are not subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment or garnishment by creditors. Any insurance on the
Executive’s life or other informal funding asset is a general asset of the Bank to which the
Executive and Beneficiary have no preferred or secured claim.
|
| 9.7 |
Reorganization
. The Bank shall not merge or consolidate into or with another bank,
or reorganize, or sell substantially all of its assets to another bank, firm or person unless
such succeeding or continuing bank, firm or person agrees to assume and discharge the
obligations of the Bank under this Agreement. Upon the occurrence of such an event, the term
“Bank” as used in this Agreement shall be deemed to refer to the successor or survivor entity.
|
| 9.8 |
Entire Agreement
. This Agreement constitutes the entire agreement between the Bank
and the Executive as to the subject matter hereof. No rights are granted to the Executive by
virtue of this Agreement other than those specifically set forth herein.
|
| 9.9 |
Interpretation
. Wherever the fulfillment of the intent and purpose of this Agreement
requires and the context will permit, the use of the masculine gender includes the feminine
and use of the singular includes the plural.
|
| 9.10 |
Alternative Action
. In the event it shall become impossible for the Bank or the Plan
Administrator to perform any act required by this Agreement due to regulatory or other
constraints, the Bank or Plan Administrator may perform such alternative act as most nearly
carries out the intent and purpose of this Agreement and is in the best interests of the Bank,
provided that such alternative act does not violate Code Section 409A.
|
| 9.11 |
Headings
. Article and section headings are for convenient reference only and shall
not control or affect the meaning or construction of any provision herein.
|
| 9.12 |
Validity
. If any provision of this Agreement shall be illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining parts hereof, but this
Agreement shall be construed and enforced as if such illegal or invalid provision had never
been included herein.
|
| 9.13 |
Notice
. Any notice or filing required or permitted to be given to the Bank or Plan
Administrator under this Agreement shall be sufficient if in writing and hand-delivered or
sent by registered or certified mail to the address below:
|
| 9.14 |
Deduction Limitation on Benefit Payments
. If the Bank reasonably anticipates that
the Bank’s deduction with respect to any distribution under this Agreement would be limited or
eliminated by application of Code Section 162(m), then to the extent deemed necessary by the
Bank to ensure that the entire amount of any distribution from this Agreement is deductible,
the Bank may delay payment of any amount that would otherwise be distributed under this
Agreement. The delayed amounts shall be distributed to the Executive (or the Beneficiary in
the event of the Executive’s death) at the earliest date the Bank reasonably anticipates that
the deduction of the payment of the amount will not be limited or eliminated by application of
Code Section 162(m).
|
| EXECUTIVE | BANK | |||||||||
|
|
||||||||||
| /s/ Rose Dembosz | By: | /s/ Daniel E. West | ||||||||
| Rose Dembosz | Daniel E. West | |||||||||
|
|
Title: | Chairman of the Board | ||||||||
|
o
New Designation
|
|
o
Change in Designation
|
|
Primary:
|
||||
|
|
% | |||
|
|
||||
|
|
||||
|
|
% | |||
|
|
||||
|
|
||||
|
Contingent:
|
||||
|
|
% | |||
|
|
||||
|
|
||||
|
|
% | |||
|
|
||||
| • |
Please PRINT CLEARLY or TYPE the names of the beneficiaries.
|
| • |
To name a trust as Beneficiary, please provide the name of the trustee(s) and the
exact
name and date of the trust agreement.
|
| • |
To name your estate as Beneficiary, please write “Estate of
[your name]
”.
|
| • |
Be aware that none of the contingent beneficiaries will receive anything unless ALL of
the primary beneficiaries predecease you.
|
|
Name:
|
||||||||
|
Signature:
|
Date: |
|
Spouse Name:
|
||||||||
|
|
||||||||
|
Signature:
|
Date: |
|
By:
|
||||
|
|
||||
|
Title:
|
| 1.8 |
“
Discount Rate
” means the rate used by the plan administrator for determining the
Accrual Balance. The initial Discount Rate is six percent (6%). However, the plan
administrator, in its discretion, may adjust the Discount Rate in order to maintain the
Discount Rate within reasonable standards according to GAAP and/or applicable bank regulatory
guidance, as recommended b the Employer’s independent auditor engaged to audit the financial
statements of the Employer. The Discount Rate will be reviewed at least annually. Executive
shall be notified of any such change in the Discount Rate. Executive acknowledges that a
change in the Discount Rate may increase or decrease the Accrual Balance which may affect his
or her benefits hereunder.
|
| 9.1 |
Definition of Specified Employee
. For purposes of this Article 9, the term
“Specified Employee” means an employee who at the time of Termination of Employment is a key
employee of the Company, if any stock of the Company is publicly traded on an established
securities market or otherwise. For purposes of this Agreement, an employee is a key employee
if the employee meets the requirements of Code
section 416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the regulations
thereunder and disregarding section 416(i)(5)) at any time during the 12-month period
ending on December 31 (the “identification period”). If the employee is a key employee
during an identification period, the employee is treated as a key employee for purposes of
this Agreement during the twelve (12) month period that begins on the first day of April
following the close of the identification period.
|
| 9.2 |
Restriction on Timing of Distributions to Specified Employees
. Notwithstanding any
provision of this Agreement to the contrary, if the Executive is considered a Specified
Employee, the provisions of this Section 9.2 shall govern any distributions hereunder which
would otherwise be made to the Executive due to a Termination of Employment. Such
distributions shall not be made during the first six (6) months following Termination of
Employment unless Executive dies prior to the end of the six (6) month period. Rather, any
distribution which would otherwise be paid to the Executive during such period shall be
accumulated and paid to the Executive in a lump sum on the first day of the seventh month
following the Termination of Employment. All subsequent distributions shall be paid in the
manner otherwise specified herein.
|
| 9.3 |
Timing of Payments
. Any amounts paid to the Executive pursuant to Section 3.3 prior
to Termination of Employment shall be paid within two and one-half (2 1/2) months following
the end of the prior year and shall be treated as short-term deferrals under Code section
409A.
|
| 9.4 |
Change in Form or Timing of Distributions
. All changes in the form or timing of the
amounts paid to the Executive pursuant to Section 3.3 must be made by written amendment to
this Agreement and must comply with the restrictions on changes to payments contained in Code
section 409A and the regulations promulgated thereunder.
|
| 9.5 |
Compliance with Code Section 409A
. This Agreement shall be interpreted and
administered consistent with Code section 409A.
|
- 2 -
| Executive: | PLUMAS BANK | |||||||||
|
|
||||||||||
| /s/ Andrew J. Ryback | By: | /s/ Daniel E. West | ||||||||
| Andrew J. Ryback | Daniel E. West | |||||||||
|
|
Title : | Chairman of the Board | ||||||||
- 3 -
| 1.01 |
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.
|
| 1.02 |
Annual Benefit
.
The term “Annual Benefit” shall mean an annual sum of sixty-two
thousand dollars ($62,000) multiplied by the Applicable Percentage (defined below) less the
annual benefit payable under the Grandfathered Agreement and then reduced to the extent
required: (i) under the other provisions of this Agreement; (ii) by reason of the lawful order
of any regulatory agency or body having jurisdiction over the Employer; and (iii) in order for
the Employer 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).
|
- 2 -
| 1.03 |
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 as an
employee for a period of three hundred sixty-five (365) days) which have elapsed starting from
the Effective Date of this Agreement and ending on the date payments are to first begin under
the terms of this Agreement. In the event that Executive’s employment with Employer is
terminated other than by reason of death, disability, Retirement or voluntary termination on
the part of Executive, Executive shall be deemed for purposes of determining the number of
complete years to have completed a year of service in its entirety for any partial year of
service after the last anniversary date of the Effective Date during which the Executive’s
employment is terminated.
|
| 1.04 |
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.
|
| 1.05 |
Code
.
“Code” shall mean the Internal Revenue code of 1986, as amended.
|
| 1.06 |
Disability/Disabled
.
The term “Disability” or “Disabled” shall mean the Executive:
(i) is unable to engage in any substantial gainful activity by reason of any medically
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 twelve (12) months; or (ii) is, by
reason of any medically 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 twelve
(12) months, receiving income replacement benefits for a period of not less than three (3)
months under an accident and health plan covering employees or directors of the Employer.
Medical determination of Disability may be made by either the Social Security Administration
or by the provider of an accident or health plan covering employees or directors of the
Employer provided that the definition of “disability” applied under such disability insurance
program complies with the requirements of the preceding sentence. Upon the request of the
plan administrator, the Executive must submit proof to the plan administrator of the Social
Security Administration’s or the provider’s determination.
|
- 3 -
| 1.07 |
Early Retirement Date
.
The term “Early Retirement Date” shall mean the Retirement
(as defined below) of the Executive on a date which occurs after the date upon which the
Executive has, measured in the aggregate and from the date of this Agreement to the date of
the Executive’s Retirement, been employed by the Employer for no less than nineteen (19)
years.
|
| 1.08 |
Effective Date
.
The term “Effective Date” shall mean the date upon which this
Agreement was entered into by the parties, as first written above.
|
| 1.09 |
ERISA
.
The term “ERISA” shall mean the Retirement Income-security Act of 1974, as
amended.
|
| 1.10 |
Plan Year
.
The term “Plan Year” shall mean the Employer’s calendar year.
|
| 1.11 |
Retirement/Retires
.
The term “Retirement” or “Retires” shall mean the date
acknowledged in Executive’s written notice to the Employer of the Executive’s Termination of
Employment.
|
| 1.12 |
Specified Employee
.
The term “Specified Employee” shall mean an employee who at the
time of Termination of Employment is a key employee of the Employer, if any stock of the
Employer is publicly traded on an established securities market or otherwise. For purposes of
this Agreement, an employee is a key employee if the employee meets the requirements of Code
section 416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder
and disregarding section 416(i)(5)) at any time during the twelve (12) month period ending on
December 31 (the “identification period”). If the employee is a key employee during an
identification period, the employee is treated as a key employee for purposes of this
Agreement during the twelve (12) month period that begins on the first day of April following
the close of the identification period.
|
| 1.13 |
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.
|
| 1.14 |
Termination of Employment
.
“Termination of Employment” shall mean termination of the
Executive’s employment with the Employer for reasons other than death or Disability. Whether
a Termination of Employment has occurred is determined based on whether the facts and
circumstances indicate that the Employer and the Executive reasonably anticipated that no
further services would be performed after a certain date or that the
level of bona fide services the Executive would perform after such date (whether as an
employee or as an independent contractor) would permanently decrease to no more than twenty
percent (20%) of the average level of bona fide services performed (whether as an employee
or an independent contractor) over the immediately preceding thirty-six (36) month period
(or the full period of services to the Employer if the Executive has been providing
services to the Employer less than thirty-six (36) months).
|
- 4 -
| 1.15 |
Unforeseeable Emergency
.
The term “Unforeseeable Emergency” shall mean a severe
financial hardship to the Executive resulting from an illness or accident of the Executive,
the Executive’s spouse, the Beneficiary, or the Executive’s dependent (as defined in section
152(a) of the Code), loss of the Executive’s property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of events beyond the control
of the Executive.
|
| 2.01 |
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.
|
| 2.02 |
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.
|
| 3.01 |
Payments Upon Retirement
.
If the Executive shall remain in the continuous employment
of the Employer until attaining sixty-five (65) years of age, the Executive shall be entitled
to be paid, as his normal retirement benefit, the Annual Benefit, as defined above, for a
period of fifteen (15)
years, in one hundred eighty (180) equal monthly installments, 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.
|
- 5 -
| 3.02 |
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) equal
monthly installments described in section 3.01 above, the Employer will make the remaining
monthly payments, undiminished and on the same schedule as if the Executive had not died, to
the Executive’s designated Beneficiary. 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.
|
| 4.01 |
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 (60) years of age or if the Executive chooses to
work after attaining sixty (60) years of age, but dies before Retirement, the Employer agrees
to pay the Annual Benefit for a period of fifteen (15) years in one hundred eighty (180) equal
monthly installments, with each installment to be paid on the first of each month beginning
with the month following the Executive’s death, to the Executive’s designated Beneficiary with
the Applicable Percentage determined by the applicable years of service, including years of
service with the Employer prior to execution of this agreement, at the time of death. If a
valid Beneficiary designation is not in effect, then the amounts due to the Executive under
the terms of this Agreement shall be paid to the Executive’s Surviving Spouse as set forth
above. If the Executive leaves no Surviving Spouse, the 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 as set forth above.
|
- 6 -
| 4.02 |
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: (i) continue to be treated during
such period of Disability as being gainfully employed by the Employer, but shall not add
applicable years of service for the purpose of determining the Annual Benefit; and (ii)
be entitled to be paid the Annual Benefit for fifteen (15) years, as determined by the
applicable years of service at the time of Disability in one hundred eighty (180) equal
monthly installments, 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-five (65) 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. Upon Executive’s death, no further payments will be made under this
Article 4.02.
|
| 5.01 |
Payments in the Event Employment is Terminated Other than by Disability, Retirement or a
Change of Control of the Employer
.
As indicated in Article II 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 for any
reason, including voluntary Termination of Employment by the Executive, but other than by
reason of Disability, Retirement or a Change of Control of the Employer as set forth in
Article 5.02, the Executive or his legal representative shall be entitled to be paid the
Annual Benefit for a period of fifteen (15) years, as determined by the applicable years of
service at the time of the Executive’s Termination of Employment with the Employer, in one
hundred eighty (180) equal monthly installments, with each installment to 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.
|
| 5.02 |
Termination of Employment in the Event of a Change of Control
.
A “Terminating Event”
shall be defined as a change in the ownership or effective control of the Employer, or in the
ownership of a substantial portion of the assets of the Employer, as such change is defined in
section 409A of the Code and regulations thereunder.
|
- 7 -
| 7.01 |
Hardship Distribution
.
The Employer may make a hardship distribution under the
circumstances described in Article 7.02 below. Any such distribution shall require the
adjustment described in Article 7.03 to any amounts to be paid under Articles 3, 4, 5 or 6.
|
- 8 -
| 7.02 |
Application for and Amount of Hardship Distribution
.
If an Unforeseeable Emergency
occurs, the Executive may petition the Board to receive a distribution from the Agreement (a
“Hardship Distribution”). The Board in its sole discretion may grant such petition. If
granted, the Executive shall receive, within sixty (60) days, a Hardship Distribution from the
Agreement only to the extent deemed necessary by the Board to remedy the Unforeseeable
Emergency, plus an amount necessary to pay taxes reasonably anticipated as a result of the
distribution. In any event, the maximum amount which may be paid out pursuant to this Article
is the vested Annual Benefit as of the day that the Executive petitioned the Board to receive
a Hardship Distribution under this Article.
|
| 7.03 |
Benefit Adjustment
.
At the time of any Hardship Distribution, the vested Annual
Benefit shall be reduced by the amount of the Hardship Distribution and the benefits to be
paid under Articles 3, 4, 5 or 6 hereof shall reflect such reduced amount.
|
- 9 -
| (a) |
may not accelerate the time or schedule of any distribution, except as
provided in Code section 409A and the regulations thereunder;
|
| (b) |
must, for benefits distributable under Article 3 and 6, be made at least
twelve (12) months prior to the first scheduled distribution;
|
| (c) |
must, for benefits distributable under Articles 3, 5 and 6, delay the
commencement of distributions for a minimum of five (5) years from the date the first
distribution was originally scheduled to be made;
and
|
- 10 -
| 15.01 |
Opportunity to Consult with Independent Counsel
.
The Executive acknowledge 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.
|
- 11 -
| 15.02 |
Arbitration of Disputes
.
All claims, disputes and other matters 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 111 Pine Street, Suite 710, San Francisco, California. 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 417 Montgomery Street, San Francisco, California, 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 Quincy, California, unless otherwise agreed to by the parties.
|
| 15.03 |
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.
|
- 12 -
| 15.04 |
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.
|
|
If to the Employer:
|
Plumas Bank | |
|
|
P.O. Box 10150 | |
|
|
Quincy, California 95971 | |
|
|
Attn: Mr. Daniel E. West | |
|
|
||
|
If to the Executive:
|
Douglas N. Biddle | |
|
|
550 Hillside Drive | |
|
|
Quincy, California 95971 |
| 15.05 |
Assignment
.
Neither the Executive, the Executive’s spouse, nor any other
beneficiary under this Agreement shall have any power or right to transfer, assign,
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.
|
| 15.06 |
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.
|
- 13 -
| 15.07 |
Nonwaiver
.
The failure of either party to enforce at any time or for any period of
time anyone 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.
|
| 15.08 |
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.
|
| 15.09 |
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.
|
| 15.10 |
Amendments
.
Except as otherwise provided in this Article or Articles 15.14 and
15.15, below, this Agreement may be amended only by a written agreement signed by the Employer
and the Executive. However, the Employer may unilaterally amend this Agreement to conform
with written directives to the Employer from its auditors or banking regulators or to comply
with legislative changes or tax law, including without limitation section 409A of the Code and
any and all Treasury regulations and guidance promulgated thereunder.
|
| 15.11 |
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.
|
| 15.12 |
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.
|
| 15.13 |
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 Superintendent of Banks; (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.
|
- 14 -
| 15.14 |
Plan Termination Generally
.
Except as otherwise provided in Article 15.15, this
Agreement may be terminated only by a written agreement signed by the Employer and the
Executive. The benefit hereunder shall be the vested Annual Benefit as of the date the
Agreement is terminated. Except as provided in Article 15.15, the termination of this
Agreement shall not cause a distribution of benefits under this Agreement. Rather, after such
termination benefit distributions will be made at the earliest distribution event permitted
under Articles 3, 4, 5 or 6.
|
| 15.15 |
Plan Terminations Under Section 409A
.
Notwithstanding anything to the contrary
herein, this Agreement may be terminated by the Employer, or its successor, and distributions
hereunder accelerated as provided below in the following circumstances:
|
| (a) |
Within thirty (30) days before or twelve (12) months after a change in the
ownership or effective control of the Employer, or in the ownership of a substantial
portion of the assets of the Employer as described in Section 409A(2)(A)(v) of the
Code, provided that all distributions are made no later than twelve (12) months
following such termination of the Agreement and further provided that all the
Employer’s arrangements which are substantially similar to the Agreement are
terminated so the Executive and all participants in the similar arrangements are
required to receive all amounts of compensation deferred under the terminated
arrangements within twelve (12) months of the such terminations;
|
| (b) |
Upon the Employer’s dissolution or with the approval of a bankruptcy court
provided that the amounts deferred under the Agreement are included in the Executive’s
gross income in the latest of (i) the calendar year in which the Agreement terminates;
(ii) the calendar year in which the amount is no longer subject to a substantial risk
of forfeiture; or (iii) the first calendar year in which the distribution is
administratively practical; or
|
| (c) |
Upon the Employer’s termination of this and all other arrangements that would
be aggregated with this Agreement pursuant to Treasury Regulations section 1.409A-1(c)
if the Executive participated in such arrangements (“Similar Arrangements”), provided
that (i) the termination and liquidation does not occur proximate to a downturn in the
financial health of the Employer, (ii) all termination distributions are made no
earlier than twelve (12) months and no later than twenty-four (24) months following
such termination, and (iii) the Employer does not adopt any new arrangement that would
be a Similar Arrangement for a minimum of three (3) years
following the date the Employer takes all necessary action to irrevocably terminate
and liquidate the Agreement;
|
- 15 -
| 15.16 |
Compliance with Code Section 409A
.
This Agreement shall be interpreted and
administered consistent with Code section 409A.
|
|
THE EMPLOYER:
|
THE EXECUTIVE: | |||||
|
|
||||||
|
PLUMAS BANK
|
||||||
|
A California Corporation
|
||||||
|
|
||||||
|
/s/ Daniel E. West
|
/s/ D. N. Biddle
|
|||||
|
Chairman of the Board
|
||||||
|
|
||||||
|
/s/ Terrence J. Reeson
|
||||||
|
Vice-Chairman of the Board
|
- 16 -
| NUMBER OF COMPLETE | ||||
| YEARS OF SERVICE | APPLICABLE | |||
| WHICH HAVE ELAPSED | PERCENTAGE | |||
|
|
||||
|
1
|
4.74 | % | ||
|
2
|
9.48 | % | ||
|
|
||||
|
3
|
14.22 | % | ||
|
|
||||
|
4
|
18.96 | % | ||
|
|
||||
|
5
|
23.70 | % | ||
|
|
||||
|
6
|
28.44 | % | ||
|
|
||||
|
7
|
33.18 | % | ||
|
|
||||
|
8
|
38.08 | % | ||
|
|
||||
|
9
|
42.66 | % | ||
|
|
||||
|
10
|
47.40 | % | ||
|
|
||||
|
11
|
52.14 | % | ||
|
|
||||
|
12
|
56.88 | % | ||
|
|
||||
|
13
|
61.62 | % | ||
|
|
||||
|
14
|
66.36 | % | ||
|
|
||||
|
15
|
71.10 | % | ||
|
|
||||
|
16
|
75.84 | % | ||
|
|
||||
|
17
|
80.58 | % | ||
|
|
||||
|
18
|
85.32 | % | ||
|
|
||||
|
19 (early retirement age — 60)
|
90.06 | % | ||
|
|
||||
|
20
|
92.06 | % | ||
|
|
||||
|
21
|
94.06 | % | ||
|
|
||||
|
22
|
96.06 | % | ||
|
|
||||
|
23
|
98.06 | % | ||
|
|
||||
|
24
|
100.00 | % | ||
- 17 -
- 2 -
| Executive: | Plumas Bank | |||||||||
|
|
||||||||||
| /s/ D. N. Biddle | By: | /s/ Daniel E. West | ||||||||
|
Douglas N. Biddle
|
Title: | Chairman of the Board | ||||||||
- 3 -
- 4 -
| 1.1 |
“
Insurer
” means Lincoln National Life Insurance Company.
|
| 2.2 |
Executive’s Interest
. The Executive shall have the right to designate the beneficiary
of death proceeds of the Policy in the amount of four hundred fifty-seven thousand three
hundred forty-six dollars ($457,346). The Executive shall also have the right to elect and
change settlement options that may be permitted. However, the Executive, the Executive’s
transferee or the Executive’s beneficiary shall have no rights or interests in the Policy with
respect to that portion of the death proceeds designated in this section 2.2 if the Executive
ceases to be employed by the Employer for any reason whatsoever prior to Normal Retirement Age
(other than by reason of a leave of absence which is approved by the Employer) and has
received or had the opportunity to receive any benefit under the Executive Salary Continuation
Agreement dated June 2, 1994 and a first and second Amendment thereto (Grandfathered
Agreement) as well as the Amended and Restated Executive Salary Continuation Agreement between
the Employer and the Executive (collectively the “Salary Continuation Agreement”).
|
| 9.1 |
Definition of Specified Employee
. For purposes of this Article 9, the term
“Specified Employee” means an employee who at the time of Termination of Employment is a key
employee of the Company, if any stock of the Company is publicly traded on an established
securities market or otherwise. For purposes of this Agreement, an employee is a key employee
if the employee meets the requirements of Code section 416(i)(1)(A)(i), (ii), or (iii)
(applied in accordance with the regulations thereunder and disregarding section 416(i)(5)) at
any time during the 12-month period ending on December 31 (the “identification period”). If
the employee is a key employee during an identification period, the employee is treated as a
key employee for purposes of this Agreement during the twelve (12) month period that begins on
the first day of April following the close of the identification period.
|
| 9.2 |
Restriction on Timing of Distributions to Specified Employees
. Notwithstanding any
provision of this Agreement to the contrary, if the Executive is considered a Specified
Employee, the provisions of this Section 9.2 shall govern any distributions hereunder which
would otherwise be made to the Executive due to a Termination of Employment. Such
distributions shall not be made during the first six (6) months following Termination of
Employment unless Executive dies prior to the end of the six (6) month period. Rather, any
distribution which would otherwise be paid to the Executive during such period shall be
accumulated and paid to the Executive in a lump sum on the first day of the seventh month
following the Termination of Employment. All subsequent distributions shall be paid in the
manner otherwise specified herein.
|
| 9.3 |
Timing of Payments
. Any amounts paid to the Executive pursuant to Section 3.3 prior
to Termination of Employment shall be paid within two and one-half (2 1/2) months following
the end of the prior year and shall be treated as short-term deferrals under Code section
409A.
|
- 2 -
| 9.4 |
Change in Form or Timing of Distributions
. All changes in the form or timing of the
amounts paid to the Executive pursuant to Section 3.3 must be made by written amendment to
this Agreement and must comply with the restrictions on changes to payments contained in Code
section 409A and the regulations promulgated thereunder.
|
| 9.5 |
Compliance with Code Section 409A
. This Agreement shall be interpreted and
administered consistent with Code section 409A.
|
|
Executive:
|
PLUMAS BANK | |||||||||
|
|
||||||||||
| /s/ D. N. Biddle | By: | /s/ Daniel E. West | ||||||||
|
Douglas N. Biddle
|
Title: | Chairman of the Board | ||||||||
- 3 -
| 2.2 |
Executive’s Interest
. The Executive shall have the right to designate the beneficiary
of death proceeds of the Policy in the amount of one hundred thousand dollars ($100,000). The
Executive shall also have the right to elect and change settlement options that may be
permitted. However, the Executive, the Executive’s transferee or the Executive’s beneficiary
shall have no rights or interests in the Policy with respect to that portion of the death
proceeds designated in this section 2.2 if the Executive ceases to be employed by the Employer
for any reason whatsoever prior to Normal Retirement Age (other than by reason of a leave of
absence which is approved by the Employer) and has received or had the opportunity to receive
any benefit under the Executive Salary Continuation Agreement dated June 2, 1994 and a first
and second Amendment thereto (Grandfathered Agreement) as well as the Amended and Restated
Executive Salary Continuation Agreement between the Employer and the Executive (collectively
the “Salary Continuation Agreement”).
|
| 9.1 |
Definition of Specified Employee
. For purposes of this Article 9, the term
“Specified Employee” means an employee who at the time of Termination of Employment is a key
employee of the Company, if any stock of the Company is publicly traded on an established
securities market or otherwise. For purposes of this Agreement, an employee is a key employee
if the employee meets the requirements of Code section 416(i)(1)(A)(i), (ii), or (iii)
(applied in accordance with the regulations thereunder and disregarding section 416(i)(5)) at
any time during the 12-month period ending on December 31 (the “identification period”). If
the employee is a key employee during an identification period, the employee is treated as a
key employee for purposes of this Agreement during the twelve (12) month period that begins on
the first day of April following the close of the identification period.
|
| 9.2 |
Restriction on Timing of Distributions to Specified Employees
. Notwithstanding any
provision of this Agreement to the contrary, if the Executive is considered a Specified
Employee, the provisions of this Section 9.2 shall govern any distributions hereunder which
would otherwise be made to the Executive due to a Termination of Employment. Such
distributions shall not be made during the first six (6) months following Termination of
Employment unless Executive dies prior to the end of the six (6) month period. Rather, any
distribution which would otherwise be paid to the Executive during such period shall be
accumulated and paid to the Executive in a lump sum on the first day of the seventh month
following the Termination of Employment. All subsequent distributions shall be paid in the
manner otherwise specified herein.
|
| 9.3 |
Timing of Payments
. Any amounts paid to the Executive pursuant to Section 3.3 prior
to Termination of Employment shall be paid within two and one-half (2 1/2) months following
the end of the prior year and shall be treated as short-term deferrals under Code section
409A.
|
| 9.4 |
Change in Form or Timing of Distributions
. All changes in the form or timing of the
amounts paid to the Executive pursuant to Section 3.3 must be made by written amendment to
this Agreement and must comply with the restrictions on changes to payments contained in Code
section 409A and the regulations promulgated thereunder.
|
| 9.5 |
Compliance with Code Section 409A
. This Agreement shall be interpreted and
administered consistent with Code section 409A.
|
- 2 -
| Executive: | PLUMAS BANK | |||||||||
|
|
||||||||||
| /s/ D. N. Biddle | By: | /s/ Daniel E. West | ||||||||
|
Douglas N. Biddle
|
Title: | Chairman of the Board | ||||||||
- 3 -
- 2 -
| Executive: | Plumas Bank | |||||||||
|
|
||||||||||
| /s/ Robert T. Herr | By: | /s/ Daniel E. West | ||||||||
|
Robert T. Herr
|
Title: | Chairman of the Board | ||||||||
- 3 -
- 4 -
| 1.2 |
“
Insurers
” mean Lincoln National Life Insurance Company and Security Life of Denver
Insurance Company.
|
| 1.4 |
“
Policies
” mean insurance policy JP5242577, issued by Lincoln National Life Insurance
Company, and policy U200002247, issued by Security Life of Denver Insurance Company.
|
| 1.8 |
“
Discount Rate
” means the rate used by the plan administrator for determining the
Accrual Balance. The initial Discount Rate is six percent (6%). However, the plan
administrator, in its discretion, may adjust the Discount Rate in order to maintain the
Discount Rate within reasonable standards according to GAAP and/or applicable bank regulatory
guidance, as recommended b the Employer’s independent auditor engaged to audit the financial
statements of the Employer. The Discount Rate will be reviewed at least annually.
Executive shall be notified of any such change in the Discount Rate. Executive
acknowledges that a change in the Discount Rate may increase or decrease the Accrual
Balance which may affect his or her benefits hereunder.
|
| 9.1 |
Definition of Specified Employee
. For purposes of this Article 9, the term
“Specified Employee” means an employee who at the time of Termination of Employment is a key
employee of the Company, if any stock of the Company is publicly traded on an established
securities market or otherwise. For purposes of this Agreement, an employee is a key employee
if the employee meets the requirements of Code section 416(i)(1)(A)(i), (ii), or (iii)
(applied in accordance with the regulations thereunder and disregarding section 416(i)(5)) at
any time during the 12-month period ending on December 31 (the “identification period”). If
the employee is a key employee during an identification period, the employee is treated as a
key employee for purposes of this Agreement during the twelve (12) month period that begins on
the first day of April following the close of the identification period.
|
| 9.2 |
Restriction on Timing of Distributions to Specified Employees
. Notwithstanding any
provision of this Agreement to the contrary, if the Executive is considered a Specified
Employee, the provisions of this Section 9.2 shall govern any distributions hereunder which
would otherwise be made to the Executive due to a Termination of Employment. Such
distributions shall not be made during the first six (6) months following Termination of
Employment unless Executive dies prior to the end of the six (6) month period. Rather, any
distribution which would otherwise be paid to the Executive during such period shall be
accumulated and paid to the Executive in a lump sum on the first day of the seventh month
following the Termination of Employment. All subsequent distributions shall be paid in the
manner otherwise specified herein.
|
| 9.3 |
Timing of Payments
. Any amounts paid to the Executive pursuant to Section 3.3 prior
to Termination of Employment shall be paid within two
and one-half (2 1/2) months following the end of the prior year and shall be treated as
short-term deferrals under Code section 409A.
|
- 2 -
| 9.4 |
Change in Form or Timing of Distributions
. All changes in the form or timing of the
amounts paid to the Executive pursuant to Section 3.3 must be made by written amendment to
this Agreement and must comply with the restrictions on changes to payments contained in Code
section 409A and the regulations promulgated thereunder.
|
| 9.5 |
Compliance with Code Section 409A
. This Agreement shall be interpreted and
administered consistent with Code section 409A.
|
| Executive: | PLUMAS BANK | |||||||||
|
|
||||||||||
| /s/ Robert T. Herr | By: | /s/ Daniel E. West | ||||||||
|
Robert T. Herr
|
Title: | Chairman of the Board | ||||||||
- 3 -
| 1.01 |
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.
|
| 1.02 |
Annual Benefit
.
The term “Annual Benefit” shall mean an annual sum of sixty-two
thousand dollars ($62,000) multiplied by the Applicable Percentage (defined below) less the
annual benefit payable under the Grandfathered Agreement and then reduced to the extent
required: (i) under the other provisions of this Agreement; (ii) by reason of the lawful order
of any regulatory agency or body having jurisdiction over the Employer; and (iii) in order for
the Employer 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).
|
- 2 -
| 1.03 |
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 as an
employee for a period of three hundred sixty-five (365) days) which have elapsed starting from
the Effective Date of this Agreement and ending on the date payments are to first begin under
the terms of this Agreement. In the event that Executive’s employment with Employer is
terminated other than by reason of death, disability, Retirement or voluntary termination on
the part of Executive, Executive shall be deemed for purposes of determining the number of
complete years to have completed a year of service in its entirety for any partial year of
service after the last anniversary date of the Effective Date during which the Executive’s
employment is terminated.
|
| 1.04 |
Code
. “Code” shall mean the Internal Revenue code of 1986, as amended.
|
| 1.05 |
Disability/Disabled
.
The term “Disability” or “Disabled” shall mean the Executive:
(i) is unable to engage in any substantial gainful activity by reason of any medically
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 twelve (12) months; or (ii) is, by
reason of any medically 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 twelve
(12) months, receiving income replacement benefits for a period of not less than three (3)
months under an accident and health plan covering employees or directors of the Employer.
Medical determination of Disability may be made by either the Social Security Administration
or by the provider of an accident or health plan covering employees or directors of the
Employer provided that the definition of “disability” applied under such disability insurance
program complies with the requirements of the preceding sentence. Upon the request of the
plan administrator, the Executive must submit proof to the plan administrator of the Social
Security Administration’s or the provider’s determination.
|
| 1.06 |
Early Retirement Date
.
The term “Early Retirement Date” shall mean the Retirement
(as defined below) of the Executive on a date which occurs after the date upon which the
Executive has, measured in the aggregate and from the date of this Agreement to the date of
the Executive’s Retirement, been employed by the Employer for no less than seven (7) years.
|
- 3 -
| 1.07 |
Effective Date
.
The term “Effective Date” shall mean the date upon which this
Agreement was entered into by the parties, as first written above.
|
| 1.08 |
ERISA
.
The term “ERISA” shall mean the Employee Retirement Income Security Act of
1974, as amended.
|
| 1.09 |
Plan Year
.
The term “Plan Year” shall mean the Employer’s calendar year.
|
| 1.10 |
Retirement/Retires
.
The term “Retirement” or “Retires” shall mean the date
acknowledged in Executive’s written notice to the Employer of the Executive’s Termination of
Employment.
|
| 1.11 |
Specified Employee
.
The term “Specified Employee” shall mean an employee who at the
time of Termination of Employment is a key employee of the Employer, if any stock of the
Employer is publicly traded on an established securities market or otherwise. For purposes of
this Agreement, an employee is a key employee if the employee meets the requirements of Code
section 416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder
and disregarding section 416(i)(5)) at any time during the twelve (12) month period ending on
December 31 (the “identification period”). If the employee is a key employee during an
identification period, the employee is treated as a key employee for purposes of this
Agreement during the twelve (12) month period that begins on the first day of April following
the close of the identification period.
|
| 1.12 |
Termination of Employment
.
“Termination of Employment” shall mean termination of the
Executive’s employment with the Employer for reasons other than death or Disability. Whether
a Termination of Employment has occurred is determined based on whether the facts and
circumstances indicate that the Employer and the Executive reasonably anticipated that no
further services would be performed after a certain date or that the level of bona fide
services the Executive would perform after such date (whether as an employee or as an
independent contractor) would permanently decrease to no more than twenty percent (20%) of the
average level of bona fide services performed (whether as an employee or an independent
contractor) over the immediately preceding thirty-six (36) month period (or the full period of
services to the Employer if the Executive has been providing services to the Employer less
than thirty-six (36) months).
|
- 4 -
| 1.13 |
Unforeseeable Emergency
.
The term “Unforeseeable Emergency” shall mean a severe
financial hardship to the Executive resulting from an illness or accident of the Executive,
the Executive’s spouse, the Beneficiary, or the Executive’s dependent (as defined in section
152(a) of the Code), loss of the Executive’s property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of events beyond the control
of the Executive.
|
| 2.01 |
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.
|
| 2.02 |
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.
|
| 3.01 |
Payments Upon Retirement
.
If the Executive shall remain in the continuous employment
of the Employer until attaining sixty-five (65) years of age, the Executive shall be entitled
to be paid, as his normal retirement benefit, the Annual Benefit, as defined above, for a
period of fifteen (15) years, in one hundred eighty (180) equal monthly installments, 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.
|
| 3.02 |
Payments in the Event of Death After Retirement
.
In the event of Executive’s death
following Retirement, benefits shall cease under this Agreement and no death benefit shall be
provided under this Agreement.
|
- 5 -
| 4.01 |
Payments in the Event of Death Prior to Retirement
.
In the event of the Executive’s
death prior to Retirement, no death benefit shall be provided under this Agreement.
|
| 4.02 |
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: (i) continue to be treated during
such period of Disability as being gainfully employed by the Employer, but shall not add
applicable years of service for the purpose of determining the Annual Benefit; and (ii) be
entitled to be paid the Annual Benefit for fifteen (15) years, as determined by the applicable
years of service at the time of Disability in one hundred eighty (180) equal monthly
installments, 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-five
(65) 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. Upon
Executive’s death, no further payments will be made under this Article 4.02.
|
| 5.01 |
Payments in the Event Employment is Terminated Other than by Disability, Retirement or a
Change of Control of the Employer
.
As indicated in Article II 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 for any
reason, including voluntary Termination of Employment by the Executive, but other than by
reason of Disability, Retirement or a Change of Control of the Employer as set forth in
Article 5.02, the Executive or his legal representative shall be entitled to be paid the
Annual Benefit for a period of fifteen (15) years, as determined by the applicable years of
service at the time of the Executive’s Termination of Employment with the Employer, in one
hundred eighty (180) equal monthly installments, with each installment to 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.
|
- 6 -
| 5.02 |
Termination of Employment in the Event of a Change of Control
.
A “Terminating Event”
shall be defined as a change in the ownership or effective control of the Employer, or in the
ownership of a substantial portion of the assets of the Employer, as such change is defined in
section 409A of the Code and regulations thereunder.
|
- 7 -
| 7.01 |
Hardship Distribution
.
The Employer may make a hardship distribution under the
circumstances described in Article 7.02 below. Any such distribution shall require the
adjustment described in Article 7.03 to any amounts to be paid under Articles 3, 4, 5 or 6.
|
| 7.02 |
Application for and Amount of Hardship Distribution
.
If an Unforeseeable Emergency
occurs, the Executive may petition the Board to receive a distribution from the Agreement (a
“Hardship Distribution”). The Board in its sole discretion may grant such petition. If
granted, the Executive shall receive, within sixty (60) days, a Hardship Distribution from the
Agreement only to the extent deemed necessary by the Board to remedy the Unforeseeable
Emergency, plus an amount necessary to pay taxes reasonably anticipated as a result of the
distribution. In any event, the maximum amount which may be paid out pursuant to this Article
is the vested Annual Benefit as of the day that the Executive petitioned the Board to receive
a Hardship Distribution under this Article.
|
| 7.03 |
Benefit Adjustment
.
At the time of any Hardship Distribution, the vested Annual
Benefit shall be reduced by the amount of the Hardship Distribution and the benefits to be
paid under Articles 3, 4, 5 or 6 hereof shall reflect such reduced amount.
|
- 8 -
| (a) |
may not accelerate the time or schedule of any distribution, except as
provided in Code section 409A and the regulations thereunder;
|
| (b) |
must, for benefits distributable under Article 3 and 6, be made at least
twelve (12) months prior to the first scheduled distribution;
|
| (c) |
must, for benefits distributable under Articles 3, 5, and 6, delay the
commencement of distributions for a minimum of five (5) years from the date the first
distribution was originally scheduled to be made;
and
|
- 9 -
- 10 -
| 15.01 |
Opportunity to Consult with Independent Counsel
.
The Executive acknowledge 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.
|
| 15.02 |
Arbitration of Disputes
.
All claims, disputes and other matters 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 111 Pine Street, Suite 710, San Francisco, California. 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 417 Montgomery Street, San Francisco, California, 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
Quincy, California, unless otherwise agreed to by the parties.
|
- 11 -
| 15.03 |
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.
|
| 15.04 |
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.
|
|
If to the Employer:
|
Plumas Bank | |
|
|
P.O. Box 10150 | |
|
|
Quincy, California 95971 | |
|
|
Attn: Mr. Daniel E. West | |
|
|
||
|
If to the Executive:
|
Robert T. Herr | |
|
|
P.O. Box 296 | |
|
|
Quincy, California 95971 |
| 15.05 |
Assignment
.
Neither the Executive, the Executive’s spouse, nor any other
beneficiary under this Agreement shall have any power or right to transfer, assign,
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.
|
- 12 -
| 15.06 |
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.
|
| 15.07 |
Nonwaiver
.
The failure of either party to enforce at any time or for any period of
time anyone 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.
|
| 15.08 |
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.
|
| 15.09 |
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.
|
| 15.10 |
Amendments
.
Except as otherwise provided in this Article and Articles 15.14 and
15.15, below, this Agreement may be amended only by a written agreement signed by the Employer
and the Executive. However, the Employer may unilaterally amend this Agreement to conform
with written directives to the Employer from its auditors or banking regulators or to comply
with legislative changes or tax law, including without limitation
section 409A of the Code and any and all Treasury regulations and guidance promulgated
thereunder.
|
- 13 -
| 15.11 |
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.
|
| 15.12 |
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.
|
| 15.13 |
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 Superintendent of Banks; (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.
|
| 15.14 |
Plan Termination Generally
.
Except as otherwise provided in Article 15.15, this
Agreement may be terminated only by a written agreement signed by the Employer and the
Executive. The benefit hereunder shall be the vested Annual Benefit as of the date the
Agreement is terminated. Except as provided in Article 15.15, the termination of this
Agreement shall not cause a distribution of benefits under this Agreement. Rather, after such
termination benefit distributions will be made at the earliest distribution event permitted
under Articles 3, 4, 5 or 6.
|
| 15.15. |
Plan Terminations Under Section 409A
.
Notwithstanding anything to the contrary
herein, this Agreement may be terminated by the Employer, or its successor, and distributions
hereunder accelerated as provided below in the following circumstances:
|
| (a) |
Within thirty (30) days before or twelve (12) months after a change in the
ownership or effective control of the Employer, or in the ownership of a substantial
portion of the assets of the Employer as described in section 409A(2)(A)(v) of the
Code, provided that all distributions are made no later than twelve (12) months
following such termination of the Agreement and further provided that all the
Employer’s arrangements which are substantially similar to the Agreement are
terminated so the Executive and all participants in the similar arrangements are
required to receive all amounts of compensation deferred under the terminated
arrangements within twelve (12) months of the such terminations;
|
- 14 -
| (b) |
Upon the Employer’s dissolution or with the approval of a bankruptcy court
provided that the amounts deferred under the Agreement are included in the Executive’s
gross income in the latest of (i) the calendar year in which the Agreement terminates;
(ii) the calendar year in which the amount is no longer subject to a substantial risk
of forfeiture; or (iii) the first calendar year in which the distribution is
administratively practical; or
|
| (c) |
Upon the Employer’s termination of this and all other arrangements that would
be aggregated with this Agreement pursuant to Treasury Regulations section 1.409A-1(c)
if the Executive participated in such arrangements (“Similar Arrangements”), provided
that (i) the termination and liquidation does not occur proximate to a downturn in the
financial health of the Employer, (ii) all termination distributions are made no
earlier than twelve (12) months and no later than twenty-four (24) months following
such termination, and (iii) the Employer does not adopt any new arrangement that would
be a Similar Arrangement for a minimum of three (3) years following the date the
Employer takes all necessary action to irrevocably terminate and liquidate the
Agreement;
|
| 15.16 |
Compliance with Code Section 409A
.
This Agreement shall be interpreted and
administered consistent with Code section 409A.
|
- 15 -
|
THE EMPLOYER:
|
THE EXECUTIVE: | |||||
|
|
||||||
|
PLUMAS BANK
|
||||||
|
A California Corporation
|
||||||
|
|
||||||
|
/s/ Daniel E. West
|
/s/ Robert T. Herr
|
|||||
|
Chairman of the Board
|
||||||
|
|
||||||
|
/s/ Terrence J. Reeson
Vice-Chairman of the Board |
- 16 -
| NUMBER OF COMPLETE | ||||
| YEARS OF SERVICE | APPLICABLE | |||
| WHICH HAVE ELAPSED | PERCENTAGE | |||
|
|
||||
|
1
|
15.00 | % | ||
|
|
||||
|
2
|
30.00 | % | ||
|
|
||||
|
3
|
45.00 | % | ||
|
|
||||
|
4
|
60.00 | % | ||
|
|
||||
|
5 (early retirement age — 60)
|
75.00 | % | ||
|
|
||||
|
6
|
90.00 | % | ||
|
|
||||
|
7
|
92.00 | % | ||
|
|
||||
|
8
|
94.00 | % | ||
|
|
||||
|
9
|
96.00 | % | ||
|
|
||||
|
10
|
98.00 | % | ||
|
|
||||
|
11 or more
|
100.00 | % | ||
- 17 -
| 1. |
I have reviewed this report on Form 10-K of Plumas Bancorp (“registrant”);
|
| 2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
|
| 3. |
Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report;
|
| 4. |
The registrant’s other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13(a)-15(e)
and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act
Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
| a) |
Designed such disclosure controls and procedures, or caused such disclosure controls
and procedures to be designed under our supervision, to ensure that material information
relating to the registrant, including its consolidated subsidiaries, is made known to us
by others within those entities, particularly during the period in which this report is
being prepared;
|
| b) |
Designed such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted
accounting principles;
|
| c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of the disclosure
controls and procedures, as of the end of the period covered by this report based on such
evaluation; and
|
| d) |
Disclosed in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent fiscal quarter (the
registrant’s fourth fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the registrant’s internal control
over financial reporting; and
|
| 5. |
The registrant’s other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrant’s auditors and the
audit committee of the registrant’s board of directors (or persons performing the equivalent
functions):
|
| a) |
All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and
report financial information; and
|
| b) |
Any fraud, whether or not material, that involves management or other employees who
have a significant role in the registrant’s internal control over financial reporting.
|
|
/s/ D. N. Biddle
Chief Executive Officer and President |
| 1. |
I have reviewed this report on Form 10-K of Plumas Bancorp (“registrant”);
|
| 2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
|
| 3. |
Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report;
|
| 4. |
The registrant’s other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13(a)-15(e)
and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act
Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
| a) |
Designed such disclosure controls and procedures, or caused such disclosure controls
and procedures to be designed under our supervision, to ensure that material information
relating to the registrant, including its consolidated subsidiaries, is made known to us
by others within those entities, particularly during the period in which this report is
being prepared;
|
| b) |
Designed such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted
accounting principles;
|
| c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of the disclosure
controls and procedures, as of the end of the period covered by this report based on such
evaluation; and
|
| d) |
Disclosed in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent fiscal quarter (the
registrant’s fourth fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the registrant’s internal control
over financial reporting; and
|
| 5. |
The registrant’s other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrant’s auditors and the
audit committee of the registrant’s board of directors (or persons performing the equivalent
functions):
|
| a) |
All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and
report financial information; and
|
| b) |
Any fraud, whether or not material, that involves management or other employees who
have a significant role in the registrant’s internal control over financial reporting.
|
|
/s/ Andrew J. Ryback
Chief Financial Officer |
| 1) |
such Annual Report on Form 10-K of the Company for
the twelve months ended December 31, 2008, fully
complies with the requirements of section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
|
||
| 2) |
the information contained in such Annual Report on
Form 10-K of the Company for the twelve months ended
December 31, 2008, fairly presents, in all material
respects, the financial condition and results of
operations of Plumas Bancorp.
|
|
Date: March 18, 2009
|
/s/ Andrew Ryback
|
|||
|
|
Chief Financial Officer |
| 1) |
such Annual Report on Form 10-K of the Company for
the twelve months ended December 31, 2008, fully
complies with the requirements of section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
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| 2) |
the information contained in such Annual Report on
Form 10-K of the Company for the twelve months ended
December 31, 2008, fairly presents, in all material
respects, the financial condition and results of
operations of Plumas Bancorp.
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Date: March 18, 2009
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/s/ D. N. Biddle
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Executive Officer |