EXHIBIT 10.36
CLOVIS COMMUNITY BANK
SECOND AMENDED AND RESTATED
DIRECTOR DEFERRED FEE AGREEMENT
THIS AGREEMENT is entered into this 13th day of February,
2002 by and between CLOVIS COMMUNITY BANK, a California-chartered commercial
bank located in Clovis, California (the “Company”), and (the “Director”).
INTRODUCTION
Whereas, the Director
has contributed substantially to the success of the Company and its parent
corporation,
Whereas, to encourage
the Director to remain a Director of the Company, the Company is willing to
provide a deferred fee opportunity to the Director payable out of the Company’s
general assets,
Whereas, the Director
and the Company are parties to an Amended and Restated Deferred Fee Agreement
dated November 14, 1996,
Whereas, the parties to
this Agreement intend that this Agreement supersede and replace in its entirety
the November 14, 1996 Amended and Restated Deferred Fee Agreement, which
November 14, 1996 Amended and Restated Deferred Fee Agreement shall become void
and of no further force or effect on the date that this Agreement becomes
effective,
Whereas, the Director
made an initial deferral election by filing with the Company a signed Election
Form within fifteen days after November 1, 1993, and whereas that Election Form
shall continue in effect with this Agreement and does not become void pursuant
to the immediately preceding paragraph with the cancellation of the November
14, 1996 Amended and Restated Deferred Fee Agreement,
Whereas, amounts deferred
under the Amended and Restated Deferred Fee Agreement dated November 14, 1996
will be “rolled over” and covered under this Agreement,
Whereas, the Company
will pay the benefits from its general assets,
Now
Therefore, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
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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% 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 (2/3) 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.
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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 February 13, 2002.
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 ____ birthday.
1.11 “Normal Retirement Date” means the later of
the Normal Retirement Age or
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
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(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 made an initial deferral election under this Agreement
by filing with the Company a signed Election Form within fifteen (15) days
after November 1, 1993. The Election
Form set forth the amount of Fees to be deferred and the form of benefit
payment. The Election Form was effective
to defer only Fees earned after the date the Election Form is received by the
Company. Such Initial Election (or any
subsequent election under Section 2.2 that is in effect) shall continue in
effect with this Agreement.
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.
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ARTICLE 3
DEFERRAL ACCOUNT
3.1 ESTABLISHING
AND CREDITING. The Company shall continue to credit the 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.
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.
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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.
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.
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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 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
BENEFICIARIES
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.
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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 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.
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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 (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.
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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 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.
l0.7 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.
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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.
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COMPANY:
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DIRECTOR
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CLOVIS COMMUNITY BANK
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By:
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By:
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Xxxxxx X. Xxxxx
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Its:
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President & Chief Executive
Officer
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EXHIBIT A
TO
SECOND AMENDED AND RESTATED
DIRECTOR DEFERRED FEE AGREEMENT
Deferral Election
I elect to defer fees under my Second Amended and Restated Director
Deferred Fee Agreement with CLOVIS COMMUNITY BANK, as follows:
Amount of Deferral
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Frequency of Deferral
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Duration
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(Initial
and Complete One)
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(Initial
One
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(Initial
One)
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ý
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I elect to defer 100% of Fees
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Beginning of Year
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o
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This year only
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I elect to defer $ of Fees
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ý
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Each fee period
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For Years
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I elect not to defer Fees
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o
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End of year
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ý
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Until Termination of Service
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Until ____________________ (date)
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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.
Form of Benefit
I elect to receive benefits under the Agreement in the following form:
[Initial One]
Lump Sum
Equal monthly
installments for One Hundred Twenty (
) 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.
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Beneficiary Designation
I designate the following as beneficiary of benefits under the Second
Amended and Restated Director Deferred Fee Agreement payable following my
death:
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:
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Date:
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,
2002
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Accepted
by CLOVIS COMMUNITY BANK
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this
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day
of
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2002
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By:
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Xxxxxx
X. Xxxxx
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Title:
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President
& Chief Executive Officer
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