FIRST CALIFORNIA BANK SALARY CONTINUATION AGREEMENT
Exhibit 10.13
THIS AGREEMENT is adopted this 11th day of May, 2006, by and between FIRST CALIFORNIA BANK
located in Camarillo, California (the ‘Company”), and XXXXXX XXXXXXXXX (the “Executive”).
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the Company is willing to
provide salary continuation benefits to the Executive. The Company will pay the benefits from its
general assets.
AGREEMENT
The Company and the Executive agree as follows:
ARTICLE 1
DEFINITIONS
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have the meanings
specified:
1.1 “Change of Control” means the transfer of shares of the Company’s voting common stock
such that one entity or one person acquires (or is deemed to acquire when applying Section 318 of
the Code) more than 75 percent of the Company’s outstanding voting common stock.
1.2 “Code” means the Internal Revenue Code of 1986, as amended.
1.3 “Disability” means the Executive’s suffering a sickness, accident or injury which has
been determined by the carrier of any individual or group disability insurance policy covering the
Executive, or by the Social Security Administration, to be a disability rendering the Executive
totally and permanently disabled. The Executive must submit proof to the Company of the carrier’s
or Social Security Administration’s determination upon the request of the Company.
1.4 “Early Involuntary Termination” means that the Executive, prior to Normal Retirement Age,
has been notified in writing, that employment with the Company is terminated for reasons other than
an approved leave of absence, Termination for Cause, Disability, Change of Control or Early
Voluntary Termination.
1.5 “Early Voluntary Termination” means that the Executive, prior to Normal Retirement Age,
has Separated from Service with the Company for reasons other than Termination for Cause,
Disability, Change of Control or Early Involuntary Termination.
1.6 “Effective Date” means January 1, 2006.
1.7 “Normal Retirement Age” means the Executive attaining 65 years of age.
1.8 “Normal Retirement Date” means the later of the Normal Retirement Age or Separation from
Service.
1.9 “Plan Year” means a twelve-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.
1.10 “Separation from Service” or “Separated 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
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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.
1.11“Termination for Cause” shall be defined as set forth in Article 5.
1.12 “Termination of Employment” means that the Executive ceases to be employed by the
Company for any reason, other than by reason of a leave of absence approved by the Company.
Article 2
Lifetime Benefits
Lifetime Benefits
2.1 Normal Retirement Benefit. Upon Separation from Service on or after the Normal Retirement
Age for reasons other than death, the Company shall pay to the Executive the benefit described in
this Section 2.1 in lieu of any other benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1 is $85,000
(Eighty-Five Thousand Dollars).
2.1.2 Payment of Benefit. The Company shall pay the annual benefit to the Executive in
12 equal monthly installments commencing with the month following the Executive’s Normal
Retirement Date, paying the annual benefit to the Executive for a period of fifteen (15)
years.
2.2 Early Voluntary Termination. Upon an Early Voluntary Termination, the Executive will not
be eligible for a benefit under this Agreement.
2.3 Early Involuntary Termination Benefit. Upon an Early Involuntary Termination, the Company
shall pay to the Executive the benefit described in this Section 2.3 in lieu of any other benefit
under this Agreement.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is the Early Involuntary
Lump Sum set forth on Schedule A for the Plan Year ending immediately prior to Separation
from Service, determined by vesting the Executive in the Accrual Balance for the Plan Year
ending immediately prior to Separation from Service.
2.3.2 Payment of Benefit. The Company shall pay the benefit determined under Section
2.3.1 to the Executive in a lump sum within 30 days following Separation from Service.
2.4 Disability Benefit. Upon the Executive’s Separation from Service prior to Normal
Retirement Age due to Disability, the Company shall pay to the Executive the benefit described in
this Section 2.4 in lieu of any other benefit under this Agreement.
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2.4.1 Amount of Benefit. The benefit under this Section 2.4 is the Disability annual
installment set forth on Schedule A, determined by vesting the Executive in the annual
benefit for the plan year ending immediately prior to Separation from Service.
2.4.2 Payment of Benefit. The Company shall pay the annual benefit determined in
Section 2.4.1 to the Executive in 12 equal monthly installments commencing with the month
following Separation from Service, paying the annual benefit to the Executive for a period of
fifteen (15) years.
2.5 Change of Control Benefit. Upon a Change of Control, followed within twelve (12) months
by the Executive’s Separation from Service for reasons other than death, Disability or retirement,
the Company shall pay to the Executive the benefit described in this Section 2.5 in lieu of any
other benefit under this Agreement.
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.
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 Separation from Service.
2.6 Loss Year. Anything in this Article 2 to the contrary notwithstanding, should the
Company’s operations (exclusive of extraordinary gains or expenses as determined by Generally
Accepted Accounting Principles) result in a loss for any fiscal year prior to the
commencement of a benefit payment, then the accrual for that year shall be omitted and all of the
projected benefits as set forth on Schedule A shall be adjusted downward as a result.
2.7 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.
Article 3
Death Benefits
Death Benefits
3.1 Death During Active Service. If the Executive dies while in the active service of the
Company, the Company shall pay to the Executive’s beneficiary the split dollar death benefit
described in the Split Dollar Agreement attached as Addendum A between the Company and the
Executive in lieu of any other benefit under this Agreement
3.2 Death after Separation from Service due to Retirement, Disability or Change of Control. Upon the death of the Executive after Normal Retirement Date or after Termination of
Employment due to Disability or Change of Control as set forth in Article 2 of this Agreement, the
Company shall cease paying the remaining benefit, if any, and shall then pay to the Executive’s
beneficiary the split dollar death benefit described in the Split Dollar Agreement attached as
Addendum A between the Company and the Executive.
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3.3 Death after Early Involuntary Termination or Early Voluntary Termination. No death
benefit shall be paid upon the death of the Executive after an Early Involuntary Termination or an
Early Voluntary Termination
Article 4
Beneficiaries
Beneficiaries
Beneficiary designations may be made under the Split Dollar Arrangement attached as Addendum A
hereto.
Article 5
General Limitations
General Limitations
5.l Termination for Cause. Notwithstanding any provision of this Agreement to the contrary,
the Company shall not pay any benefit under this Agreement if the Company terminates the
Executive’s employment for:
(a) Gross negligence or gross neglect of duties;
(b) Commission of a felony or of a gross misdemeanor involving moral turpitude in
connection with the Executive’s employment within the Company; or
(c) Fraud, disloyalty, dishonesty or willful violation of any law or significant Company
policy committed in connection with the Executive’s employment and resulting in an adverse
effect on the Company.
5.2 Suicide or Misstatement. The Company shall not pay any benefit under this Agreement if
the Executive commits suicide. In addition, the Company shall not pay any benefit under this
Agreement if the Executive has made any material misstatement of fact on an
employment application or resume provided to the Company, or on any application for any
benefits provided by the Company to the Executive.
Article 6
Claims and Review Procedure
Claims and Review Procedure
6.1 Claims Procedure. An Executive or beneficiary (“claimant”) who has not received benefits
under the Agreement that he or she believes should be paid shall make a claim for such benefits as
follows:
6.1.1 Initiation — Written Claim. The claimant initiates a claim by submitting to the
Company a written claim for the benefits.
6.1.2 Timing of Company Response. The Company shall respond to such claimant within 90
days after receiving the claim. If the Company determines that special circumstances require
additional time for processing the claim, the Company can extend the response period by an
additional 90 days by notifying the claimant in writing, prior to the end of the initial
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 Company expects to render its decision.
6.1.3 Notice of Decision. If the Company denies part or all of the claim, the Company
shall notify the claimant in writing of such denial. The Company 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 the 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;
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(d) An explanation of the 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.
6.2 Review Procedure. If the Company denies part or all of the claim, the claimant shall have
the opportunity for a full and fair review by the Company of the denial, as follows:
6.2.1 Initiation — Written Request. To initiate the review, the claimant, within 60
days after receiving the Company’s notice of denial, must file with the Company a written
request for review.
6.2.2 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 Company 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.
6.2.3 Considerations on Review. In considering the review, the Company 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.
6.2.4 Timing of Company Response. The Company shall respond in writing to such claimant
within 60 days after receiving the request for review. If the Company determines that
special circumstances require additional time for processing the claim, the Company can
extend the response period by an additional 60 days by notifying the claimant in writing,
prior to the end of the initial 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
Company expects to render its decision.
6.2.5 Notice of Decision. The Company shall notify the claimant in writing of its
decision on review. The Company 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 the 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).
ARTICLE 7
Amendments and Termination
Amendments and Termination
7.1 This Agreement may be amended or terminated only by a written agreement signed by the
Company and the Executive; however, this Agreement will automatically terminate if no benefit is
payable to the Executive due to the Executive’s Termination for Cause, Suicide or Misstatement as
set forth in Article 5 or upon an Early Voluntary Termination.
7.2. The Company and the Executive agree to amend this Agreement in the event that there is a
change to applicable tax law or regulations or to the accounting treatment for the benefits to be
provided hereunder which materially increases the after-tax cost of the benefits. In the event an
amendment is required under this Section 7.2, such amendment shall be limited to decreasing the
benefits to be provided to the Executive only to the extent necessary so that net, after-tax impact
to the Company’s earnings will be
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substantially the same as such earnings would have been absent
the change in tax law, regulation, or accounting treatment.
Article 8
Miscellaneous
Miscellaneous
8.1 Binding Effect. This Agreement shall bind the Executive and the Company, and their
beneficiaries, survivors, executors, successors, administrators and transferees.
8.2 No Guarantee of Employment. This Agreement is not an employment policy or contract. It
does not give the Executive the right to remain an employee of the Company, nor does it interfere
with the Company’s right to discharge the Executive. It also does not require the Executive to
remain an employee nor interfere with the Executive’s right to terminate employment at any time.
8.3 Non-Competition. During such time as Executive is receiving benefit payments hereunder,
Executive shall not serve as an employee, officer or director of, or serve as a consultant or
advisor to, any financial institution, including but not limited to any bank, savings bank or
credit union, which has its headquarters or any branch office within the County of Ventura or the
County of Santa Xxxxxxx.
8.4 Non-Transferability. Benefits under this Agreement cannot be sold, transferred, assigned,
pledged, attached or encumbered in any manner.
8.5 Reorganization. The Company shall not merge or consolidate into or with another
company, or reorganize, or sell substantially all of its assets to another company, firm,
or person unless such succeeding or continuing company, firm, or person agrees to assume and
discharge the obligations of the Company under this Agreement. Upon the occurrence of such event,
the term “Company” as used in this Agreement shall be deemed to refer to the successor or survivor
company.
8.6 Tax Withholding. The Company shall withhold any taxes that are required to be
withheld from the benefits provided under this Agreement.
8.7 Applicable Law. The 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.
8.8 Unfunded Arrangement. The Executive and beneficiary are general unsecured creditors of
the Company for the payment of benefits under this Agreement. The benefits represent the mere
promise by the Company to pay 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 is a general asset of the Company to which the Executive and beneficiary
have no preferred or secured claim.
8.9 Entire Agreement. This Agreement constitutes the entire agreement between the Company 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
8.10 Administration. The Company shall have powers which are necessary to administer this
Agreement, including but not limited to:
(a) Establishing and revising the method of accounting for the Agreement;
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(b) Maintaining a record of benefit payments;
(c) Establishing rules and prescribing any forms necessary or desirable to administer the
Agreement; and
(d) Interpreting the provisions of the Agreement.
8.11 Named Fiduciary. The Company shall be the named fiduciary and plan administrator under
this Agreement. It may delegate to others certain aspects of the management and operational
responsibilities including the employment of advisors and the delegation of ministerial duties to
qualified individuals.
IN WITNESS WHEREOF, the Executive and the Company consent to this Agreement on the date above
written.
| EXECUTIVE: | COMPANY: | |||||||
FIRST CALIFORNIA BANK |
||||||||
/s/ Xxxxxx Xxxxxxxxx
|
By | /s/ Xxxx X. Xxxxxxxxxx | ||||||
| XXXXXX XXXXXXXXX | Xxxx X. Xxxxxxxxxx, Chairman | |||||||
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