409A Amendment to the First California Bank Salary Continuation Agreement for Chong Guk Kum
Exhibit 99.1
409A Amendment to the
First California Bank
Salary Continuation Agreement for
Xxxxx Xxx Kum
First California Bank
Salary Continuation Agreement for
Xxxxx Xxx Kum
First California Bank (“Bank”) and Xxxxx Xxx Kum (“Executive”) originally entered into the
First California Bank Salary Continuation Agreement (“Agreement”) on March 27, 2003. Pursuant to
Article 7 of the Agreement, the Bank and the Executive hereby adopt this 409A Amendment, effective
January 1, 2005.
This 409A Amendment is intended to bring the Agreement into full compliance with the
requirements of Internal Revenue Code Section 409A. Therefore, the following changes shall be
made:
1. | Articles 1.10 and 1.11 shall be renumbered as Articles 1.11 and 1.12, respectively, and the following definition for “Separation from Service” shall be numbered as Article 1.10: |
“Separation from Service” means that the Executive has experienced a Termination of
Employment. In the event that an Executive continues to provide services considered
“significant” to the Bank, either as an employee or as an independent contractor, a
Separation from Service will not be deemed to have occurred. “Significant” services,
for purposes of this Agreement, are those where (1) the Executive provides services in
the capacity as an employee at an annual rate equal to at least 20 percent of the
services rendered during the immediately preceding three full calendar years of
employment, and the annual remuneration for such services is equal to at least 20
percent of the average remuneration earned during the immediately preceding three full
calendar years of employment (or, if the Executive was employed for less than three
years, such lesser period); or (2) the Executive continues to provide services to the
Bank in a capacity other than as an employee, and if the Executive provide those
services at an annual rate that is at least 50 percent or more of the service rendered,
on average, during the final three full calendar years of employment (or, if less, such
lesser period) and the annual remuneration for such services is at least 50 percent or
more of the average annual remuneration earned during the immediately preceding three
full calendar years of employment (or if less, such lesser period). This definition of
Separation from Service shall at all times be construed to comply with the rules set
forth in the 409A Proposed Regulations, issued September 29, 2005, or any subsequent
regulations.
2. | All references in the Agreement to “Termination of Employment,” “terminates employment,” or other similar phrases shall be deleted and replaced with the term “Separation from Service” or “Separates from Service,” as appropriate. |
Notwithstanding the previous sentence, the definition of “Termination of Employment” in Article 1.11 shall not be deleted.
3. | A new Article 2.7 shall be added, and shall read: |
Restriction on Timing of Distribution. Notwithstanding any provision of this Agreement
to the contrary, distributions to Executive may not commence earlier than six (6)
months after the date of a Separation from Service if, pursuant to Section 409A of the
Code and regulations and guidance promulgated thereunder, Executive is considered a
“specified employee” under Section 416(i) of the Code. In the event a distribution is
delayed pursuant to this Section 2.5, the originally scheduled payments shall be
delayed for 6 months, aggregated, and paid in a lump sum on the first day of the
seventh month. All other scheduled payments shall be made on the regular schedule,
starting with the seventh payment in the seventh month. If the payment is to be made
in a lump sum, the entire lump sum shall be delayed for six months and paid in the
seventh month.
4. | Article 2.5.1 shall be deleted in its entirety and replaced with the following Article 2.5.1: |
Amount of Benefit. The benefit under this Section 2.5 is the Change of Control lump
sum set forth on Schedule A, determined by vesting the Executive in the projected
Normal Retirement Benefit at Normal Retirement Age as described in Section 2.1.1.
5. | Article 2.5.2 shall be deleted in its entirety and replaced with the following Article 2.5.2: |
Payment of Benefit. The Company shall pay the benefit determined under Section 2.5.1 to
the Executive in a lump sum within 30 days following Termination of Employment.
Therefore, the foregoing changes are agreed to.
/s/
Xxxx X. Xxxxxxxxxx
|
/s/ Xxxxx Xxx Kum | ||
Xxxx X. Xxxxxxxxxx
|
Xxxxx Xxx Kum | ||
Chairman of the Board
|
|||
For the bank
|