EXHIBIT 10.5.1
PACIFIC STATE BANK
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is adopted this ___ day of September, 2003, by and
between PACIFIC STATE BANK, a state-chartered commercial bank located in
Stockton, California (the "Company), and _________________ (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
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 50 percent of
the Company's outstanding voting common stock, followed within twelve (12)
months by the Executive's Termination of Employment for reasons other than
death, Disability or retirement.
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, or Early Voluntary Termination.
1.5 "Early Termination" means the Termination of Employment before
Normal Retirement Age for reasons other than death, Disability, Termination for
Cause or following a Change of Control.
1.6 "Early Voluntary Termination" means that the Executive, prior
to Normal Retirement Age, has terminated employment with the Company for reasons
other than Termination for Cause, Disability, or Early Involuntary Termination.
1.7 "Early Termination Date" means the month, day and year in
which Early Termination occurs.
1.8 "Effective Date" means August 1, 2003.
1.9 "Normal Retirement Age" means the Executive attaining age
sixty-five (65).
1.10 "Normal Retirement Date" means the later of the Normal
Retirement Age or Termination of Employment.
1.11 "Plan Year" means a twelve-month period commencing on August I
and ending on July 31 of each year, provided that the initial Plan Year shall be
a partial year commencing on the effective date of this Agreement and ending on
the next July 31.
1.12 "Termination for Cause" shall be defined as set forth in
Article 5.
1.13 "Termination of Employment" means that the Executive ceases to
be employed by the Company for any reason, voluntary or involuntary, other than
by reason of a leave of absence approved by the Company.
Article 2
LIFETIME BENEFITS
2.1 Normal Retirement Benefit. Upon Termination of Employment 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 $___ (__________ dollars). Commencing at the end of the first
Plan Year and continuing each Plan Year thereafter, the annual benefit shall be
increased by two percent (2%) from the previous Plan Year to a projected annual
benefit of $________ (____________ dollars) at Normal Retirement Age. Commencing
on the first anniversary of the first benefit payment following Termination of
Employment, and continuing on each subsequent anniversary, the Company's Board
of Directors shall increase this benefit by two percent (2%) from the previous
anniversary date. Any additional increase in the annual benefit shall require
the recalculation of Schedule A.
2.1.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in twelve (12) equal monthly installments commencing
with the first of the month following the Executive's Normal Retirement Date,
paying the annual benefit to the Executive for a period of twenty (20) years,.
2.2 Early Voluntary Termination Benefit. Upon Early Voluntary
Termination, the Company shall pay to the Executive the benefit described in
this Section 2.2 in lieu of any other benefit under this Agreement.
2.2.1 Amount of Benefit. The benefit under this Section 2.2
is the Early Voluntary Termination lump sum amount set forth on Schedule A for
the Plan Year ending immediately prior to the Early Termination Date except
during the first Plan Year, the benefit is the amount set forth for Plan Year
1), subject to the following vesting schedule:
---------------------- --------------------------------
Plan Year % Vested on Accrual Balance
---------------------- --------------------------------
1-10 0%
---------------------- --------------------------------
11 or more 100%
---------------------- --------------------------------
Any increase in the annual benefit under Section 2.1.1 shall require
the recalculation of this benefit on Schedule A.
2.2.2 Payment of Benefit. The Company shall pay the benefit
to the Executive in a lump sum within thirty (30) days following the Termination
of Employment.
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2.3 Early Involuntary Termination Benefit. Upon 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 Termination lump sum amount set forth on Schedule A for
the Plan Year ending immediately prior to the Early Termination Date (except
during the first Plan Year, the benefit is the amount set forth for Plan Year
1), determined by vesting the Executive in one hundred percent (100%) of the
Accrual Balance for said Plan Year. Any increase in the annual benefit under
Section 2.1.1 shall require the recalculation of this benefit on Schedule A.
2.3.2 Payment of Benefit. The Company shall pay the benefit
to the Executive in a lump sum within thirty (30) days following the Executive's
Termination of Employment.
2.4 Disability Benefit. If the Executive terminates employment due
to Disability prior to Normal Retirement Age, the Company shall pay to the
Executive the benefit described in this Section 2.4 in lieu of any other benefit
under this Agreement.
2.4.1 Amount of Benefits. The benefit under this Section
2.4 is the Disability lump sum amount set forth on Schedule A for the Plan Year
ending immediately prior to Termination of Employment (except during the first
Plan Year, the benefit is the amount set forth for Plan Year 1), determined by
vesting the Executive in one hundred percent (100%) of the Accrual Balance for
said Plan Year. Any increase in the annual benefit under Section 2.1.1 would
require the recalculation of this Disability benefit on Schedule A.
2.4.2 Payment of Benefit. The Company shall pay the benefit
to the Executive in a lump sum within thirty (30) days following the Termination
of Employment.
2.5 Change of Control Benefit. Upon a Change of Control, 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 annual Installment set forth on Schedule A for the Nan
Year ending immediately prior to Termination of Employment (except during the
first Plan Year, the benefit is the amount set forth for Plan Year 1),
determined by vesting the Executive one hundred percent (100%) in the Normal
Retirement Benefit described in Section 2.1.1.
2.5.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in twelve (12) equal monthly installments commencing
with the first of the month following the Executive attaining Normal Retirement
Age, paying the annual benefit to the Executive for a period of twenty (20)
years.
2.5.3 Excess Parachute Payment. Notwithstanding any
provision of this Agreement to the contrary, the Company will reduce any benefit
under this Agreement by an amount necessary to avoid an excise tax under the
excess parachute rules of Section 280G of the Code.
Article 3
DEATH BENEFITS
The Company shall not pay a death benefit under this Agreement. A death
benefit may be provided according to the terms of a separate Split Dollar
Agreement entered into by the Company and the Executive.
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Article 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with the Company. The Executive may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Executive and
received by the Company during the Executive's lifetime. 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. If the Executive dies without valid
beneficiary designation, all payments shall be made to the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incompetent person or incapable person. The Company may require proof of
incompetence, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
Article 5
GENERAL LIMITATIONS
5.1 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) Willful breach of duty in the course of
employment or habitual neglect of employment responsibilities and duties;
(b) Conviction of any felony or crime involving
moral turpitude, fraud or dishonesty;
(c) Willful violation of any state or federal
banking or securities law, the rules or regulations of any banking agency, or
any material Company rule, policy or resolution resulting in an adverse effect
on the Company; or
(d) Disclosure to any third party by the
Executive, without authority or permission, of any secret or confidential
information of the Company.
5.2 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
6.1 Claims Procedure. Any individual ("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.
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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
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) (00 Xxxxxx Xxxxxx Code section
1132(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
this Agreement on which the denial is based;
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(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
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive.
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 would
materially increase the after-tax cost of the benefits to the Company. In the
event an amendment is required, such amendment shall he 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 substantial the
same as such earnings would have been absent the change in tax law, regulation,
or accounting treatment.
Article 8
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-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any manner.
8.4 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.
8.5 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.6 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.
8.7 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.
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8.8 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.
8.9 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;
(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.
8.10 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 have signed this
Agreement.
EXECUTIVE: COMPANY:
PACIFIC STATE BANK
By: /s/ XXXXXX HAND, M.D.
------------------------------------
Xxxxxx Hand, M.D.
Title: Chairman of the Board
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BENEFICIARY DESIGNATION
PACIFIC STATE BANK
SALARY CONTINUATION AGREEMENT
I designate the following as beneficiary of any benefits under this Agreement
payable after my death:
Primary:
Relationship and Social Security Number:
Contingent (if the Primary is deceased):
Relationship and Social Security Number: _________________________________
___________________________________________________________________________
Note:
o Include instructions regarding how you want benefits divided if you are
naming more than one Primary or Contingent beneficiary and their share
is not equal.
o To name a trust as beneficiary, please provide the name of the
trustee(s) and the exact name and date of the trust agreement and the
tax identification number.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature: _______________________________________
Date: ____________________________________________
Received by the Company this ___ day of September, 2003
By: /s/ XXXXXX HAND, M.D.
-----------------------------------------
Xxxxxx Hand, M.D.
Title: Chairman of the Board
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I, ______________________________ am the spouse of _____________________________
_____________________________________________. I acknowledge that my spouse has
named someone other than me as a primary beneficiary of the benefit in
connection with this Agreement, and I hereby approve of that designation. I
agree that the designation shall be binding upon mc with the same effect as if I
had personally executed said designation.
Signature of Spouse: _____________________________________
Date ____________________________________________________
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