POST-RETIREMENT COMPENSATION AGREEMENT
EXHIBIT 10.1
This Agreement (“Agreement”) is entered
into as of the 7th day of July, 2009, between PROVIDENT SAVINGS BANK, F.S.B.
(the “Bank”) and
XXXXXXX X. XXXXXX (the “Executive”) with reference to the following
facts.
A. The
Executive has been employed by the Bank since November 1, 2000, and has
performed his duties in an exemplary manner resulting in substantial profits to
the Bank.
B.
In recognition of the Executive’s services to the Bank, the Bank desires to
enter into a Post-Retirement Compensation Agreement with the Executive, pursuant
to which the Executive is entitled to receive certain post-retirement
benefits.
NOW, THEREFORE, the parties hereto
agree as follows:
1. Retirement
Benefit.
2. Distribution of
Benefits.
(a) Time of
Distribution. Except as otherwise provided herein, or required
or permitted by Section 409A, the Executive’s payment shall be made by the
60th
day following the date of the Executive’s Separation From Service (the “60th Day”),
or if the 60th Day is
not within the calendar year of the Executive’s Separation From Service, no
later than the 15th day of
the third month following the Executive’s Separation from Service.
(b) Form of
Benefit. The Bank shall make a lump sum payment to the
Executive in an amount equal to the actuarially determined discounted present
value of the Basic Benefit. In calculating the actuarially determined
present value of the Basic Benefit, the calculation shall be as of the date of
the Executive’s Separation From Service and shall be based on the prevailing
National Association of Insurance Commissioners (“NAIC”) standard mortality
tables used as of such date, and the discount rate used shall be the lesser of
the prime rate or the Eleventh District cost of funds.
3. Early
Termination.
(a) Death, Disability or
Involuntary Termination: Full Benefits. If, prior to reaching
age sixty-two (62), the Executive experiences a Separation From Service from the
Bank as a result of death, Disability, or Involuntary Termination prior to or
within 12 months following the effective time of
a Change
in Control, the Executive, or his surviving spouse, if applicable, shall be
entitled to a lump sum benefit equal to the amount that would have become
payable to the Executive pursuant to Section 2(a); provided, however, that such
lump sum benefit shall be reduced by any benefit actually received by the
Executive under a long-term disability policy maintained by the
Bank. The timing of the distribution of the benefit provided under
this Section 3(a) shall be subject to the provisions of Section 2(a) and subject
to Section 4.
(b) For
purposes of Section 3(a), the following definitions shall apply:
(i) The
term “Involuntary Termination” shall mean the termination of the employment of
Executive (A) by the Bank without the Executive's express written consent; or
(B) by the Executive by reason of a material diminution of or interference with
his duties, responsibilities or benefits, including (without limitation), if the
termination of employment occurs within 30 days of any of the
following actions unless consented to in writing by the Executive: (I) a
requirement that the Executive be based at any place other than Riverside,
California, or within a radius of 35 miles from the location of the Bank's
administrative offices as of the initial effective date of this Agreement,
except for reasonable travel on Bank business; (II) a material demotion of the
Executive; (III) a material reduction in the number or seniority of personnel
reporting to the Executive or a material reduction in the frequency with which,
or in the nature of the matters with respect to which such personnel are to
report to the Executive, other than as part of a Bank-wide reduction in staff;
(IV) a reduction in the Executive's base salary or a material adverse change in
the Executive's perquisites, benefits, contingent benefits or vacation, other
than (1) as part of an overall program applied uniformly and with equitable
effect to all members of the senior management of the Bank, or (2) as a result of a
material adverse change in the Bank's financial condition and results of
operations, which results in the Bank no longer qualifying as a “well
capitalized” institution pursuant to applicable regulations, however, such
reduced base salary shall be no less than 100% of Executive’s current base
salary; (V) a material permanent increase in the required hours of work or the
workload of the Executive; or (VI) the failure of the board of directors of the
Bank (“Board of Directors”) (or a board of directors of a successor of the Bank)
to elect the Executive as Chief Operating Officer of the Bank (or a successor of
the Bank) or any action by the Board of Directors (or a board of directors of a
successor of the Bank) removing the Executive from such office. The
term "Involuntary Termination" does not include Termination for Cause (as
defined herein), Separation from Service due to death or Disability, retirement
or suspension or temporary or permanent prohibition from participation in the
conduct of the Bank's affairs under Section 8 of the Federal Deposit Insurance
Act ("FDIA").
(ii) The
term "Change in Control" means (A) any "person," as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (other than (I) Provident Financial Holdings, Inc. (the
“Company”), (II) any subsidiary or subsidiaries of the Company (or its
successors) that are part of the affiliated group (as defined in Section 1504 of
the Internal Revenue Code of 1986, as amended (the "Code"), without regard to
subsection (b) thereof) that includes the Bank, including but not limited to the
Company, (III) any person (as hereinabove defined) acting on behalf of the
Company as underwriter pursuant to an offering who is temporarily holding
securities in connection with such offering, (IV) any trustee or other fiduciary
holding securities under an employee benefit plan of the Company, or (V) any
corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company),
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
25% or more of the combined voting power of the Company's then outstanding
securities; (B) individuals who are members of the Board of Directors of the
Company or the Bank on the effective date of this Agreement (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof, provided that any
person becoming a director subsequent to the effective date whose election was
approved by a vote of at least three-quarters of the directors comprising the
Incumbent Board or whose nomination for election by
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the
Company's stockholders was approved by the nominating committee serving under an
Incumbent Board or who was appointed as a result of a change at the direction of
the Office of Thrift Supervision ("OTS") or the Federal Deposit Insurance
Corporation ("FDIC"), shall be considered a member of the Incumbent Board; (C)
the stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than (I) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation or (II) a
merger or consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no person (as hereinabove defined) acquires
more than 25% of the combined voting power of the Company's then outstanding
securities; or (D) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets (or any transaction
having a similar effect); provided that the
term "Change in Control" shall not include an acquisition of securities by an
employee benefit plan of the Bank or the Company or a change in the composition
of the Board at the direction of the OTS or the FDIC.
(iii) The
term “Disability” shall mean a disability that causes the Executive to be
entitled to benefits under the terms of the then-current disability plan, if
any, of the Bank. If no such disability plan exists, then Disability
shall have the same meaning as under Section 409A.
(c) Termination by Executive
Reduced Benefits. Subject to Section 3(a) and
Section 3(d), if the Executive experiences a Separation From Service from the
Bank prior to reaching age sixty-two (62) for any reason other than as described
under Section 3(a), the monthly benefits due and payable to the Executive under
this Agreement shall be reduced from fifty percent (50%) of the Executive’s
Final Average Monthly Salary by multiplying the benefits otherwise payable
hereunder by a fraction, the numerator of which shall be the number of months
between November 1, 2000, and the date of such termination of employment, and
the denominator of which shall be the number of months from November 1, 2000, to
the date Executive reaches the age sixty-two (62). The Executive
shall be entitled to commence receipt of such reduced monthly benefits hereunder
upon reaching age sixty-two (62), subject to Section 4
hereof. Distribution of the benefit provided under this Section
3(a) shall be pursuant to the provisions of Section 2.
(d) Termination for
Cause. In no event shall any payment be made under this
Agreement if Executive is Terminated for Cause. The phrase
"Terminated for Cause" shall mean termination of the employment of the Executive
with the Bank because of the Executive’s personal dishonesty, incompetence,
willful misconduct, breach of a fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any law,
rule, or regulation (other than traffic violations or similar offenses) or final
cease-and-desist order. The Executive shall not be deemed to
have been Terminated for Cause unless and until there shall have been delivered
to the Executive a copy of a resolution, duly adopted by the affirmative vote of
not less than a majority of the Board of Directors of the Bank at a meeting of
the Board of Directors duly called and held for such purpose (after reasonable
notice to the Executive, which shall not be less than 30 days notice, and an
opportunity for the Executive, together with the Executive 's counsel, to be
heard before the Board of Directors), stating that in the good faith opinion of
the Board of Directors, the Executive has engaged in conduct described in the
preceding sentence and specifying the particulars thereof in detail, which
determination shall be subject to a complete and de novo review as to
reasonableness and good faith.
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4. Section 409A-Required Delay
of Benefit Payments
Notwithstanding
anything herein to the contrary, if the Executive is considered a “Specified
Employee” (within the meaning of Section 409A) at the time of his Separation
From Service, then no benefits which are considered to be deferred compensation
under Section 409A shall be paid to the Executive until six months after the
date of the Executive’s Separation From Service, or his death if
earlier.
5. Non-assignment of
Benefits.
Neither
the Executive, his spouse (if any), his designated beneficiaries (if any) or his
estate shall have any right to alienate, pledge, hypothecate, encumber or
dispose of the right to receive payments under this Agreement, nor shall such
payments be subject to pledge, attachment or claims of
creditors. Such payments and the rights thereto are expressly
declared to be nonassignable and nontransferable. In the event of any
attempted assignment of transfer, the Bank shall not be bound thereby and may
fully discharge its obligations under this Agreement by making the payments
provided for in this Agreement to the parties designated herein.
6. Successors.
This
Agreement shall be binding upon and inure to the benefit of any successor of the
Bank and any such successor shall be deemed substituted for the Bank under the
terms of this Agreement. As used in this Agreement, the term
“successor” shall include any firm, corporation, or other business entity which
at any time, whether by merger, consolidation, purchase or other corporate
reorganization involving the Bank, acquires all or substantially all of the
assets or business of the Bank.
7. Administration.
The
Personnel/Compensation Committee of the Board of Directors (the “Committee”)
shall be responsible for administration of this Agreement, and shall have the
authority to make, amend or rescind such rules and to make such determinations
as it shall deem necessary or appropriate for the proper implementation of this
Agreement; provided that, the Committee shall report all actions taken by it to
the Board of Directors on a regular basis. Any action taken or
determination made by the Committee shall be final, binding and conclusive on
all parties absent manifest error. The Committee shall be the agent
for the service of process on the Bank in connection with this
Agreement.
8. Procedure For Appeal of
Denial of Benefits: Arbitration.
(a) The
Executive, or the Executive’s spouse if applicable, shall have the right to
request review by the Committee of any decision denying claims for benefits
under this Agreement in accordance with the following appeal
procedure:
(i) The
Committee shall provide notice in writing to the Executive (or to the
Executive’s spouse, if applicable) if a claim for benefits under this Agreement
has been denied in whole or in part. Such notice shall be made within
60 days of the receipt by the Committee of the claim or, if special
circumstances require, and the Executive (or spouse) is so notified in writing,
within 90 days of the receipt by the Committee of the claim. The
notice shall (A) set for the specific reasons for the denial of benefits; (B)
contain specific references to provisions of the Agreement relevant to the
denial; (C) describe any material and information, if any, necessary for the
claim for benefits to be allowed, which had been requested, but not received by
the Committee; and (D) advise the Executive (or spouse) that any
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appeal of
the Committee’s adverse determination must be made in writing to the Committee,
within 90 days after receipt of this notification, setting forth the facts upon
which the appeal is based.
(ii) If
the Executive (or spouse) fails to appeal the Committee’s denial of benefits in
writing and within ninety (90) days, the Committee’s determination shall become
final and conclusive.
(iii) If
the Executive (or spouse) timely appeals the Committee’s denial of benefits, the
Committee shall reexamine all issues relevant to the original denial of
benefits. The Committee may in addition, upon at least ten (10) days
written notice, request the claimant or his representative to appear personally
before it to make an oral presentation or answer questions that may have been
raised, or the Executive (or spouse) or their representative may make a request
to appear personally before the Committee.
(iv) The
Committee shall advise the Executive (or spouse) in writing of its decision and
the specific reasons on which such decision was based within 60 days of receipt
of the written appeal, or personal appearance of the Executive (or spouse) or
their representative, unless special circumstances require an extension of such
sixty (60) day period for not more than an additional sixty (60)
days. Where such extension is necessary the Executive (or spouse)
shall be given written notice of the delay.
(b) If
any issue regarding claims under this Agreement is not resolved to the
satisfaction of the Executive, or the Executive’s spouse if applicable, such
issue shall be submitted for final and binding arbitration in accordance with
the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator’s award resulting
from such arbitration in any court of competent jurisdiction.
9. Notices, Statements and
Reports.
The Committee shall be the
“administrator” of the Agreement as defined in Section 3(16)(A) of the Employee
Retirement Income Security Act of 1974 (“ERISA”) for purposes of the reporting
and disclosure requirements imposed by ERISA and the Internal Revenue Code of
1986, as amended.
10. Indemnification.
To the extent permitted by applicable
law and regulation, the Bank shall indemnify and hold harmless the members of
the Board of Directors and the members of the Committee from and against any and
all liabilities, costs, and expenses incurred by such persons as a result of any
act, or omission to act, in connection with the performance of such persons’
duties, responsibilities, and obligations under this Agreement, other than such
liabilities, costs and expenses as may result from the negligence, gross
negligence, bad faith, willful misconduct, or criminal acts of such
persons.
11. Withholding.
All
amounts paid pursuant to this Agreement shall be subject to applicable federal,
state and local tax withholding laws and regulations.
12. Headings.
Headings
herein are for convenience only, are not a part hereof and shall not be used in
construing this Agreement.
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13. Counterparts.
This
Agreement maybe be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute one instrument.
14. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
California.
15. Severability.
Any
provisions of this Agreement which is held to be prohibited or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability only,
without invalidating the remaining provisions hereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates
set opposite their respective names.
| DATE | EXECUTIVE | ||
| July 7, 2009 | /s/Xxxxxxx X. Xxxxxx | ||
| XXXXXXX X. XXXXXX | |||
| BANK | |||
| PROVIDENT SAVINGS BANK, F.S.B. | |||
| By:/s/Xxxxx X. Xxxxxxx | |||
| XXXXX X. XXXXXXX | |||
| BOARD OF DIRECTORS | |||
| /s/Xxxxxxx X. Xxxx | |||
| XXXXXXX X. XXXX | |||
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