Exhibit 10.34
CLOVIS COMMUNITY
BANK DIRECTOR
DEFERRED FEE AGREEMENT
THIS AGREEMENT is entered into this 1st day of August, 2001
by and between CLOVIS COMMUNITY BANK, a California-chartered commercial bank
located in Clovis, California (the “Company”), and XXXXX X.XXXXXX Xx. (the
“Director”).
INTRODUCTION
To encourage the Director to
remain a member of the Company’s Board of Directors, the Company is willing to
provide to the Director a deferred fee opportunity. The Company will pay the Director’s benefits from its general
assets.
AGREEMENT
The
Director and the Company 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 that any of the
following events occur:
(a) Merger: Central Valley Community Bancorp,
parent corporation of Clovis Community Bank, merges into or consolidates with
another corporation, or merges another corporation into Central Valley
Community Bancorp, and as a result less than 50% of the combined voting power
of the resulting corporation immediately after the merger or consolidation is
held by persons who were the holders of Central Valley Community Bancorp’s
voting securities immediately before the merger or consolidation. For purposes of this Agreement, the term
“person” means an individual, corporation, partnership, trust, association,
joint venture, pool, syndicate, sole proprietorship, unincorporated
organization or other entity,
(b) Acquisition of Significant Share Ownership: a
report on Schedule 13D or another form or schedule (other than Schedule 13G) is
filed or is required to be filed under Sections 13(d) or 14(d) of the
Securities Exchange Act of 1934, if the schedule discloses that the filing
person or persons acting in concert has or have become the beneficial owner of
25%
1
or
more of a class of Central Valley Community Bancorp’s voting securities, but
this paragraph (b) shall not apply to beneficial ownership of voting securities
of Central Valley Community Bancorp held in a fiduciary capacity by an entity
in which Central Valley Community Bancorp directly or indirectly beneficially
owns 50% or more of the outstanding voting securities, or beneficial ownership
of voting securities held by an employee benefit plan maintained for the
benefit of Clovis Community Bank employees, or
(c) Change in Board Composition: during any
period of two consecutive years, individuals who constitute Central Valley
Community Bancorp’s board of directors at the beginning of the two-year period
cease for any reason to constitute at least a majority thereof; provided,
however, that , for purposes of this paragraph (c) , each director
who is first elected by the board (or first nominated by the board for election
by stockholders) by a vote of at least two-thirds (b) of the directors who were
directors at the beginning of the period shall be deemed to have been a
director at the beginning of the two-year period.
1.2 “Code” means the Internal Revenue Code of
1986, as amended.
1.3 “Corporation” means Central
Valley Community Bancorp.
1.4 “Deferral Account” or “Deferred
Account” means
the Company’s accounting of the Director’s accumulated Deferrals plus accrued
interest.
1.5 “Deferrals” means the amount of the Director’s Fees, which the Director
elects to defer according to this Agreement.
1.6 “Disability” means the Director’s inability
to perform substantially all normal duties of a director, as determined by the
Company’s Board of Directors in its sole discretion. As a condition to any benefits, the Company may require the
Director to submit to such physical or mental evaluations and tests as the
Board of Directors deems appropriate.
1.7 “Effective
Date” means August 1, 2001.
1.8 “Election
Form” means the Form attached as Exhibit A.
1.9 “Fees” means the total directors fees
payable to the Director during a Plan Year.
1.10 “Normal Retirement Age” means the
Director’s 65th birthday.
1.11 “Normal Retirement Date” means the later of
the Normal Retirement Age or
2
Termination of Service.
1.12 “Plan Year” means the
calendar year.
1.13 “Projected Benefit” means the
balance that would have accumulated in the Director’s Deferral Account at
Normal Retirement Age if it is assumed that the Director: (1) continued to
defer Fees at the same rate that the Director had been deferring Fees on the
date of the Director’s death and (2) the Director reached Normal Retirement
Age.
1.14 “Termination for Cause” means
the Company’s board of directors or a duly authorized committee of the board of
directors determines at any time that the Director will not be nominated by the
board or committee for reelection as a Director of Central Valley Community
Bancorp after the expiration of his current term, or if the Director is removed
as a director of the Company, in either case because of the Director’s :
(a) gross negligence or gross neglect of
duties, or
(b) commission of a felony, or commission
of a misdemeanor involving moral turpitude, or
(c) fraud, disloyalty, dishonesty, or willful violation of any
law or significant policy of Central Valley Community Bancorp or the Company,
or
(d) removal from service or permanent
prohibition from participation in the conduct of the Company’s affairs by an
order issued under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance
Act [ 12 U.S.C. 1818(e)(4) or (g)(1)].
1.15 “Termination of Service” means the Director ceasing to be a
member for the Company’s Board of Directors for any reason whatsoever.
ARTICLE 2
DEFERRAL ELECTION
2.1 INITIAL ELECTION.
The Director shall make an initial deferral election under this Agreement by
filing with the Company a signed Election Form within fifteen (15) days after
the date of this Agreement. The
Election Form shall set forth the amount of Fees to be deferred and the form of
benefit payment. The Election Form
shall be effective to defer only Fees earned after the date the Election Form
is received by the Company.
3
2.2 ELECTION CHANGES
2.2.1 GENERALLY. The
Director may modify the amount of Fees to be deferred by filing a subsequent
signed Election Form with the Company and obtaining written approval by the
Board of Directors of the Company. The modified deferral shall not be effective
until the calendar year following the year in which the subsequent Election
Form is received by the Company. The Director may not change the form of
benefit payment initially elected under Section 2.1 without the written
approval of the Board of Directors of the Company.
2.2.2 HARDSHIP. If an
unforeseeable financial emergency arising from the death of a family member,
divorce, sickness, injury, catastrophe or similar event outside the control of
the Director occurs, the Director, by written instructions to the Company may
reduce future deferrals under this Agreement.
ARTICLE 3
DEFERRAL ACCOUNT
3.1 ESTABLISHING AND CREDITING. The Company shall establish a
Deferral Account on its books for the Director, and shall credit to the
Deferral Account the following amounts:
3.1.1 DEFERRALS. The Fees
deferred by the Director as of the time the Fees would have otherwise been paid
to the Director.
3.1.2 INTEREST. At the end
of each Plan Year under this Agreement and immediately prior to the payment of
any benefits, but only until commencement of the benefit payments under this
Agreement, unless otherwise stated, interest is to be credited on the account
balance since the preceding credit under this Section 3.1.2, if any, equal to
the rate determined by the Company’s Board of Directors, in its sole
discretion.
3.2 STATEMENT OF ACCOUNTS. The Company
shall provide to the Director, within one hundred twenty (120) days after each
anniversary of this Agreement, a statement setting forth the Deferral Account
balance.
3.3 ACCOUNTING DEVICE ONLY. The Deferral Account is solely a
device for measuring amounts to be paid under this Agreement. The Deferral
Account is not a segregated fund of any kind. The Director is a general
unsecured creditor of the Company for the payment of benefits. The benefits
represent the mere Company promise to pay such benefits. The Director’s rights
are not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by the Director’s
creditors.
4
ARTICLE 4
LIFETIME
BENEFITS
4.1 NORMAL BENEFIT. Upon
the Normal Retirement Date, the Company shall pay to the Director the benefit
described in this Section 4.1 in lieu of any other benefit under this
Agreement.
4.1.1 AMOUNT OF BENEFIT. The benefit under this Section 4.1 is the
Deferral Account balance at the Director’s Normal Retirement Date.
4.1.2 PAYMENT OF BENEFIT. The Company shall pay
the benefit to the Director in the form elected by the Director on the Election
Form.
4.2 EARLY TERMINATION
BENEFIT. Upon Termination of Service prior to the Normal Retirement Age for
reasons other than death, Change of Control or Disability, the Company shall
pay to the Director the benefit described in this Section 4.2 in lieu of any
other benefit under this Agreement.
4.2.1 AMOUNT OF BENEFIT. The benefit under this
Section 4.2 is the Deferral Account balance at the Director’s Termination of
Service.
4.2.2 PAYMENT
OF BENEFIT. The Company shall pay the early termination benefit to the Director
in a lump sum within forty-five (45) days after the Director’s Termination of
Service if early termination occurs within five years of the Agreement’s
Effective Date hereof. If early
termination occurs after the Director has accrued five years of Deferrals, the
early termination benefit shall be paid to the Director in the form elected by
the Director on the Election Form.
4.3 DISABILITY BENEFIT. If the Director terminates service as
a director for Disability prior to Normal Retirement Age, the Company shall pay
to the Director the benefit described in this Section 4.3.
4.3.1 AMOUNT OF BENEFIT. The benefit under this Section 4.3 is the
Deferral Account balance at the Director’s Termination of Service.
4.3.2 PAYMENT OF BENEFIT. The Company shall pay the Disability
benefit to the Director in a single lump sum within forty-five (45) days after
the Director’s Termination of Service if Disability occurs within five years of
the Agreement’s Effective Date hereof.
If Disability occurs after the Director has accrued five years of
service, the Disability benefit shall be paid to the Director in the form
elected by the Director on the Election Form.
5
4.4 CHANGE OF CONTROL
BENEFIT. If Termination of Service occurs within 12 months after the first
occurrence of a Change of Control,
excepting Termination for Cause, the Company shall pay to the Director the
benefit described in this Section 4.4 in lieu of any other benefit under this
Agreement.
4.4.1 AMOUNT OF BENEFIT. The benefit under this Section 4.4 is the
Deferral Account balance at the date of the Director’s Termination of Service.
4.4.2 PAYMENT OF BENEFIT. The Company shall pay
the benefit to the Director in a lump sum within thirty (30) days after the
Director’s Termination of Service.
4.5 HARDSHIP
DISTRIBUTION. Upon the Company’s determination (following petition by the
Director) that the Director has suffered an unforeseeable financial emergency
as described in Section 2.2.2, the Company shall distribute to the Director all
or a portion of the Deferral Account balance as determined by the Company, but
in no event shall the distribution be greater than is necessary to relieve the
financial hardship.
ARTICLE 5
DEATH BENEFITS
5.1 SPLIT DOLLAR DEATH BENEFITS FOR DEATH DURING ACTIVE
SERVICE. If the Director dies before
the Normal Retirement Age while in the active service of the Company, the
Company shall pay to the Director’s beneficiary(ies) or estate the benefit
described in the Split Dollar Agreement and Endorsement, attached to this
Agreement as Addendum A, between the Company and the Director in lieu of any
other benefit payable hereunder, in accordance with the terms and conditions of
the Split Dollar Agreement and Endorsement unless the Director’s service with
the Company terminated because of Termination for Cause.
5.2 SPLIT DOLLAR DEATH BENEFITS DURING PENDENCY OF COLLECTING
DEFERRAL ACCOUNT BALANCE. If the
Director dies after any benefit payments provided pursuant to Article 4 have
commenced under this Agreement but before receiving all such payments, the
remaining benefits shall be paid to the Director’s beneficiary(ies) or estate
pursuant to the benefit described in the Split Dollar Agreement and
Endorsement, attached to this Agreement as Addendum A, between the Company and
the Director in lieu of any other benefit payable hereunder, in accordance with
the terms and conditions of the Split Dollar Agreement and Endorsement.
5.3 COLLECTION IN FULL OF DEFERRAL ACCOUNT BALANCE. The
benefit described in the Split Dollar Agreement and Endorsement, attached to
this
6
Agreement as Addendum A, shall terminate upon
payment in full by the Company to the Director of the Deferral Account
maintained by the Company for the director under this Agreement.
ARTICLE 6
6.1 BENEFICIARY
DESIGNATIONS. The Director shall designate a beneficiary by filing a written
designation with the Company. The Director may revoke or modify the designation
at any time by filing a new designation. However, designations will only be
effective if signed by the Director and accepted by the Company during the
Director’s lifetime. The Director’s beneficiary designation shall be deemed
automatically revoked if the beneficiary predeceases the Director, or if the
Director names a spouse as beneficiary and the marriage is subsequently
dissolved. If the Director dies without a valid beneficiary designation, all
payments shall be made to the Director’s surviving spouse, if any, and if none,
to the Director’s surviving children and the descendants of any deceased child
by right of representation, and if no children or descendants survive, to the
Director’s estate.
6.2 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 incompetency, 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 7
GENERAL LIMITATIONS
7.1
INSURANCE. The Company may
acquire an insurance policy on the life of the Director. The Company will be
the owner and beneficiary of the policy.
7.2 SUICIDE. The Company shall not pay any benefit under this
Agreement exceeding the Deferral Account if the Director commits suicide within
three years after the date of this Agreement.
In addition, the Company shall not pay any benefit under this Agreement
if the Director has made any material misstatement of fact on a resume provided
to the Company, or on any application for any benefits provided by the Company
to the Director.
7.3 GENERAL.
Notwithstanding anything to the contrary contained in this Agreement, the
Director is entitled to only one benefit which shall be determined by the first
event to occur which is dealt with by this Agreement. Subsequent
7
occurrence of events dealt with by this Agreement shall not entitle the
Director or his or her beneficiaries to other or further benefits under this
Agreement.
7.4 TAX
CONSEQUENCES. The Company does not insure or guarantee the tax consequences of
payments provided hereunder for matters beyond its control, and the Director
certifies that his decision to reduce and defer to receive his compensation is
not due to any reliance upon financial, tax or legal advice given by the
Company, and of its employees, agents, accountants or legal advisors.
7.5 TERMINATION FOR CAUSE. Notwithstanding any provision of
this Agreement to the contrary, the Company shall not pay any benefit under
this Agreement that is in excess of the Director’s Deferrals (i.e.,
the interest earned on the Deferred Account) if the Director’s Termination of
Service results from Termination for Cause.
The Director’s Deferrals shall be paid to the Director in a manner to be
determined by the Company. No interest
shall be credited on the Deferrals during any applicable installment period.
ARTICLE 8
CLAIMS AND REVIEW PROCEDURES
8.1 CLAIMS PROCEDURE. The Company shall notify any person or
entity that makes a claim for benefits under this Agreement (the “Claimant”) in
writing, within 90 days of Claimant’s written application for benefits, of his
or her eligibility or noneligibility for benefits under the Agreement. If the Company determines that the Claimant
is not eligible for benefits or full benefits, the notice shall set forth (a)
the specific reasons for such denial, (b) a specific reference to the
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
his or her claim, and a description of why it is needed, and (d) an explanation
of the Agreement’s claims review procedure and other appropriate information as
to the steps to be taken if the Claimant wishes to have the claim
reviewed. If the Company determines
that there are special circumstances requiring additional time to make a
decision, the Company shall notify the Claimant of the special circumstances
and the date by which a decision is expected to be made, and may extend the
time for up to an additional 90 days.
8.2 REVIEW PROCEDURE. If
the Claimant is determined by the Company not to be eligible for benefits, or
if the Claimant believes that he or she is entitled to greater or different
benefits, the Claimant shall have the opportunity to have such claim reviewed by
the Company by filing a petition for review with the Company within 60 days
after receipt of the notice issued by the Company. Said petition shall state the specific reasons, which the
Claimant believes entitle him or her to benefits or to greater or different
benefits. Within 60 days after receipt
by the Company of the petition, the Company shall afford the Claimant (and
counsel, if any) an opportunity to present his or her position to the Company
verbally or in writing, and the Claimant
8
(or counsel) shall have the right to review the pertinent
documents. The Company shall notify the
Claimant of its decision in writing within the 60-day period, stating
specifically the basis of its decision, written in a manner to be understood by
the Claimant and the specific provisions for the Agreement on which the
decision is based. If, because of the
need for a hearing, the sixty-day period is not sufficient, the decision may be
deferred for up to another 60 days at the election of the Company, but notice
of this deferral shall be given to the Claimant.
ARTICLE 9
AMENDMENTS AND TERMINATION
The Company may
amend or terminate this Agreement at any time prior to the Director’s
Termination of Service by written notice to the Director. In no event shall this Agreement be
terminated without payment to the Director of the Deferral Account balance
attributable to the Director’s Deferrals and interest credited on such amounts
unless the Agreement terminates as a result of Termination for Cause in which
event the Director forfeits the interest credited on the Director’s Deferrals.
ARTICLE 10
MISCELLANEOUS
10.1 BINDING EFFECT. This
Agreement shall bind the Director and the Company, and their beneficiaries,
successors and assigns, survivors, executors, administrators and transferees.
10.2 NO GUARANTEE OF
SERVICE. This Agreement is not a contract for services. It does not give the
Director the right to remain a director of the Company, nor does it interfere
with the shareholders’ rights to replace the Director. It also does not require
the Director to remain a director nor interfere with the Director’s right to
terminate services at any time
10.3 NON-TRANSFERABILITY.
Benefits under this Agreement cannot be sold, transferred, assigned, pledged,
attached or encumbered in any manner.
10.4 TAX WITHHOLDING. The
Company shall withhold any taxes that are required to be withheld from the
benefits provided under this Agreement.
10.5 APPLICABLE LAW. The
Agreement and all rights hereunder shall be governed by the laws of California
except to the extent preempted by the laws of the United States of America.
10.6 UNFUNDED ARRANGEMENT.
The Director 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
9
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 Director’s life
is a general asset of the Company to which the Director and beneficiary have no
preferred or secured claim.
10.7 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the Company and the
Director as to the subject matter hereof. No rights are granted to the Director
by virtue of this Agreement other than those specifically set forth herein.
10.8 ADMINISTRATION. The
Company shall have powers which are necessary to administer this Agreement,
including but not limited to
10.8.1 Interpreting the
provisions of the Agreement;
10.8.2 Establishing and
revising the method of accounting for the Agreement
10.8.3 Maintaining a record
of benefit payments; and
10.8.4 Establishing rules and
prescribing any forms necessary or desirable to administer the Agreement.
10.9 NAMED FIDUCIARY. The
Company shall be the named fiduciary and plan administrator under the
Agreement. The named fiduciary may
delegate to others certain aspects of the management and operation
responsibilities of the plan including the service of advisors and the
delegation of ministerial duties to qualified individuals.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer
have signed this Agreement.
DIRECTOR:
|
|
COMPANY :
|
|
|
|
CLOVIS COMMUNITY BANK
|
By:
|
/s/Xxxxx X. Xxxxxx Xx.
|
|
|
|
|
Xxxxx X. Xxxxxx Xx.
|
|
By:
|
/s/Xxxxxx
X. Xxxxx
|
|
|
|
|
Xxxxxx X. Xxxxx
|
|
|
|
|
Its: President & Chief Executive Officer
|
10
EXHIBIT A
TO
DIRECTOR DEFERRED FEE AGREEMENT
Deferral Election
I elect to defer fees under my Director Deferred Fee Agreement with
CLOVIS COMMUNITY BANK, as follows:
Amount of Deferral
|
|
Frequency of Deferral
|
|
Duration
|
(Initial
and Complete One)
|
|
(Initial
One)
|
|
(Initial
One)
|
X I elect to
defer 100% of Fees
|
|
__
Beginning of Year
|
|
__
This year only
|
__
I elect to defer $____ of Fees
|
|
X Each fee period
|
|
__
For _____ Years
|
__ I elect not to defer Fees
|
|
__ End of year
|
|
X Until Termination of Service
|
|
|
|
|
__ Until ________
(date)
|
I understand that I may change the amount, frequency and duration of my
deferrals by filing a new election form with CLOVIS COMMUNITY BANK and
obtaining written approval of the Board of Directors of CLOVIS COMMUNITY BANK;
provided, however, that any subsequent election will not be effective until the
calendar year following the year in which the new election is received by
CLOVIS COMMUNITY BANK.
11
Form of Benefit
I elect to receive benefits under the Agreement in the following form:
[Initial One]
__ Lump Sum
X Equal monthly installments for One Hundred Twenty
(120) months
I understand that I may not change the form of benefit elected, even if
I later change the amount of my deferrals under the Agreement without written
approval of the Board of Directors of CLOVIS COMMUNITY BANK.
12
Beneficiary Designation
I designate the following as beneficiary of benefits under the Director
Deferred Fee Agreement payable following my death:
Primary: ___________________________________________________
Contingent: ________________________________________________
NOTE: To
name a trust as beneficiary, please provide the name of the trustee and the exact
date of the trust agreement.
I understand that I may change these beneficiary designations by filing
a new written designation with CLOVIS COMMUNITY BANK. I further understand that the designations will be automatically
revoked if the beneficiary predeceases me, or, if I have named my spouse as
beneficiary, in the event of the dissolution of our marriage.
Signature: _/s/Xxxxx X. Xxxxxx Xx.
Xxxxx X. Xxxxxx Xx.
Date: August 1, 2001
Accepted by CLOVIS COMMUNITY BANK
this 1st day of August 2001
By:_/s/Xxxxxx X. Xxxxx
Title: President & Chief Executive Officer