EXHIBIT 10.12
CALIFORNIA COMMUNITY BANCSHARES, INC.
EMPLOYEE STOCK OWNERSHIP TRUST AGREEMENT
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THIS AGREEMENT, by and between CALIFORNIA COMMUNITY BANCSHARES, INC. (a
Delaware corporation), hereinafter referred to as the "Company," and XXXXX FARGO
BANK, N.A., hereinafter referred to as the "Trustee," to be effective as of
December 31, 1999.
W I T N E S S E T H:
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WHEREAS, the Company has adopted the CALIFORNIA COMMUNITY BANCSHARES,
INC. EMPLOYEE STOCK OWNERSHIP PLAN, hereinafter referred to as the "Plan," as a
qualified employee plan under Sections 401(a) of the Internal Revenue Code of
1986, as amended (the "Code"), effective as of December 31, 1999; and
WHEREAS, the Trustee has been selected to serve as the initial trustee
under the Plan, and has agreed to so serve;
NOW, THEREFORE, the parties hereto do agree that the following shall
constitute the Trust Agreement for the CALIFORNIA COMMUNITY BANCSHARES, INC.
EMPLOYEE STOCK OWNERSHIP TRUST:
A. THE TRUST ASSETS. Employer Contributions shall be paid to the
Trustee from time to time in accordance with the provisions of the Plan. All
Employer Contributions and all investments thereof, together with all
accumulations, accruals, earnings and income with respect
thereto, shall be held by the Trustee in trust hereunder as the Trust Assets.
The Trust Assets shall be invested by the Trustee as directed by the Committee
(appointed by the Company to administer the Plan) pursuant to the terms of the
Plan and this Trust Agreement. The Company shall be responsible for the
maintaining of the records of Participants' Accounts under the Plan and for the
administration of the Plan, including the computation of, and collection of,
Employer Contributions. The Trustee shall hold, invest, reinvest, manage and
distribute the Trust Assets, as directed by the Committee and the Company and as
provided herein and under the Plan, for the exclusive benefit of Participants
(and their Beneficiaries).
B. INVESTMENT OF TRUST ASSETS.
(1) As directed by the Committee, the Trustee may invest and
reinvest the Trust Assets in Company Stock, in accordance with the terms of the
Plan and this Agreement. The Trustee may invest and hold up to 100% of the Trust
Assets in Company Stock, if so directed by the Committee.
(2) As directed by the Committee, the Trustee may also place Trust
Assets in various deposit accounts offered by any bank (including the Trustee)
or savings and loan association, invest in other securities or investments
desirable for the Trust, or in any kind of investment fund (including any common
trust fund maintained by the Trustee), or Trust Assets may be held temporarily
in cash.
(3) The Committee shall have the responsibility and liability for
the prudence of investments directed by it under this Paragraph B. The Committee
may delegate to the Trustee the responsibility for investing Trust Assets other
than Company Stock.
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(4) The Trustee may invest and reinvest the Trust Assets, or any
part thereof, in any one or more investment trust funds regularly maintained by
the Trustee for common investment of trust funds, the Declaration of Trust
therefore being made hereby a part of this Trust Agreement, and notwithstanding
any other provisions hereof, the Trustee may commingle said investment with
assets similarly invested by trusts similar hereto, by investing the same as a
part of one or more of such investment trust funds, all according to said
Declarations of Trust as now constituted and as amended from time to time. (5)
In the event that the Committee directs the Trustee to dispose of any Company
Stock held as Trust Assets, under circumstances which require registration
and/or qualification of the securities under applicable Federal or state
securities laws, then the Company, at its own expense, will take, or cause to be
taken, any and all such actions as may be necessary or appropriate to effect
such registration and/or qualification.
C. TRUSTEE'S POWERS. As directed by the Committee, the Trustee shall
have the authority and power to:
(1) contract or otherwise enter into transactions for the purpose of
acquiring or selling Company Stock, including transactions with the Company or
any Company shareholder;
(2) vote any stocks (including Company Stock as provided in
Section 8 of the Plan), bonds or other securities held in the Trust, or
otherwise consent to or request any action on the part of the issuer in person
or by proxy;
(3) sell, transfer, mortgage, pledge, lease or otherwise dispose of,
or grant options with respect to, any Trust Assets at public or private sale;
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(4) give general or specific proxies or powers of attorney with or
without powers of substitution;
(5) participate in reorganizations, recapitalizations,
consolidations, mergers and similar transactions with respect to Company Stock
or any other securities;
(6) exercise any options, subscription rights and conversion
privileges with respect to any Trust Assets;
(7) xxx, defend, compromise, arbitrate or settle any suit or legal
proceeding or any claim due it or on which it may be liable;
(8) exercise any of the powers of an owner with respect to the Trust
Assets;
(9) perform all acts which the Trustee shall deem necessary or
appropriate and exercise any and all powers and authority of the Trustee under
this Agreement.
The Company and/or the Committee may authorize the Trustee in writing
to act on any matter (or class of matters) with respect to which directions or
instructions from the Company and/or the Committee are called for hereunder
without specific directions or other instructions from the Company and/or the
Committee.
D. NOMINEES. The Trustee may register any Company Stock or other
property held by it as Trust Assets hereunder in its own name or in the name of
its nominees, with or without the addition of words indicating that such
securities are held in a fiduciary capacity, and may hold any securities in
bearer form; but the books and records of the Trustee shall at all times reflect
that all such investments are part of the Trust.
E. RECORDS. The Trustee shall keep accurate and detailed accounts of
all investments, receipts and disbursements and other transactions of the Trust,
and all accounts,
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books and records relating thereto shall be open to inspection by any person
designated by the Committee or the Company at all reasonable times. The Trustee
shall maintain such records, make such computations and perform such ministerial
acts as the Company and/or the Committee may from time to time reasonably
request.
F. REPORTS. Within a reasonable period of time after each
December 31st, or following the removal or resignation of the Trustee, and as of
any other date specified by the Company or the Committee, the Trustee shall file
a report with the Company or the Committee. This report shall show all
purchases, sales, receipts, disbursements and other transactions effected by the
Trustee during the year or period for which the report is filed, and shall
contain an exact description, the cost as shown on the Trustee's books, and the
fair market value as of the end of such period, of every asset held in the Trust
and the amount and nature of each liability of the Trust.
G. DISTRIBUTIONS. The Trustee shall make distributions from the Trust
to the person entitled thereto under the Plan, as the Company directs in
writing. Any undistributed portion of a Participant's Capital Accumulation under
the Plan shall be retained in the Trust until the Company directs its
distribution.
H. SIGNATURES. All communications required hereunder from the Company
or the Committee to the Trustee shall be in writing signed by an officer of the
Company or a member of the Committee authorized to sign on its behalf. The
Committee shall authorize one or more of its members to sign on its behalf all
communications required hereunder between the Committee and the Trustee. The
Company shall at all times keep the Trustee advised of the names and specimen
signatures of all members of the Committee and the individuals authorized
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to sign communications on behalf of the Committee. The Trustee shall be fully
protected in relying on any such communication and shall not be required to
verify the accuracy or validity thereof unless it has reasonable grounds to
doubt the authenticity of any signature. If, after request, the Trustee does not
receive instructions from the Company and/or the Committee on any matter in
which instructions are required hereunder, the Trustee shall act or refrain from
acting as it may determine. Except as otherwise specifically required by
applicable law, the Committee may sign any and all documents on behalf of the
Plan and the Trust.
I. EXPENSES. The reasonable expenses incurred by the Trustee in the
performance of its duties, and all other proper administrative costs of the Plan
and Trust (including Trustee's fees), shall be charged to and paid out of the
Trust Assets. However, the Company may pay all or any portion of such expenses.
The Trustee shall be entitled to such reasonable compensation for its services
as may be agreed upon in writing from time to time between the Company and the
Trustee.
J. LIABILITY OF TRUSTEE. The Trustee shall not be liable for any action
it takes or refrains from taking in accordance with proper directions of the
Company and/or the Committee. The Trustee shall not be required to pay interest
on any portion of the Trust Assets which is held uninvested at the direction of
the Committee. The Company shall fully indemnify the Trustee and hold it
harmless from loss or liability, including reasonable legal fees, which the
Trustee sustains in discharging its duties and responsibilities under this
Agreement, unless such loss or liability results from the Trustee's breach of
fiduciary responsibility under ERISA.
K. AMENDMENT AND TERMINATION. The Company (through its Board of
Directors) shall have the right at any time, by an instrument in writing, duly
executed and delivered to the
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Trustee, to modify, alter or amend this Agreement, in whole or in part, and to
terminate the Plan and Trust, in accordance with the express provisions of
Section 17 of the Plan. In no event, however, shall any such amendment increase
the duties, powers or liabilities of the Trustee hereunder without its prior
written consent.
L. NON-REVERSION. Subject to the provisions of Paragraph K above and
Sections 4(b) and 17 of the Plan, this Trust is declared to be irrevocable, and
at no time shall any part of the Trust Assets revert to the Company or be used
for, or be diverted to, purposes other than for the exclusive benefit of
Participants (and their Beneficiaries). However, the Company may, by notice in
writing to the Trustee, direct that all or part of the Trust Assets be
transferred to a successor trustee under a trust which is for the exclusive
benefit of such Participants (and their Beneficiaries) and which satisfies the
requirements of Section 401(a) of the Code; and thereupon the Trust Assets, or
any part thereof, shall be paid over, transferred or assigned to said successor
trustee, free from the Trust created hereunder; provided, however, that no part
of the Trust Assets may be used to pay contributions of the Company under any
other plan maintained for the benefit of its Employees.
M. RESIGNATION OR REMOVAL OF TRUSTEE. The Trustee may resign at any
time upon 60 days' written notice to the Company. The Trustee may be removed at
any time by the Company upon 30 days' written notice to the Trustee. The person
to whom notice is to be given may agree to waive the requirement of written
notice or to a shorter period of notice. Upon receipt of instructions or
directions from the Company or the Committee with which the Trustee is unable or
unwilling to comply, the Trustee may resign, upon notice in writing to the
Company given within a reasonable time under the circumstances then prevailing
after the receipt of such
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instructions or directions; and notwithstanding any other provisions hereof, in
that event the Trustee shall have no liability to the Company, or to any
Participant (or Beneficiary), for failure to comply with such instructions or
directions.
Upon resignation or removal of the Trustee, the Company's Board of
Directors shall appoint a successor trustee or trustees. The successor trustee
shall have the same powers and duties as are conferred upon the Trustee
hereunder, and the Trustee shall assign, transfer and pay over to the successor
trustee all the Trust Assets, together with such records or copies thereof as
may be necessary to the successor trustee.
N. DEFINITION. The definition of certain terms in the Plan shall apply
to this Agreement wherever applicable. Each gender includes the other, and the
singular includes the plural.
O. ACCEPTANCE. The Trustee hereby accepts this Trust and agrees to hold
the initial Trust Assets, and all additions and accretions thereto, subject to
all the terms and conditions of the Plan and this Agreement. In the event that
any provision of this Agreement shall be held illegal or invalid for any reason,
the illegality or invalidity thereof shall not affect the remaining provisions
of this Agreement, but shall be fully severable, and the Agreement shall be
construed and enforced as if the illegal or invalid provision had never been
inserted herein.
P. CONFLICT BETWEEN PLAN AND TRUST AGREEMENT. If there is a conflict
between the terms of the Plan and this Agreement, the terms of this Agreement
shall be controlling with respect to the Trustee's powers, rights, duties and
liabilities.
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IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust
Agreement to be executed on this _____ day of _______________, 1999.
CALIFORNIA COMMUNITY XXXXX FARGO BANK, N.A.
BANCSHARES, INC.
By_____________________________ By_____________________________
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