EXHIBIT 99.6
BANK OF XXXXXX
AMENDED AND RESTATED
DIRECTOR RETIREMENT AGREEMENT
THIS BANK OF XXXXXX AMENDED AND RESTATED DIRECTOR RETIREMENT AGREEMENT
is entered into by and between Bank of Xxxxxx, a California-chartered bank,
whose main office is located in Jackson, California (the "Bank"), and Xxxxx
Standing (the "Director").
WHEREAS, to encourage the Director to remain a member of the Bank's
Board of Directors, the Bank is willing to provide retirement benefits to the
Director, and the Bank will pay such benefits from its general assets.
WHEREAS, the Bank and Director have previously entered into the Bank of
Xxxxxx Director Retirement Agreement dated as of August 1, 2003.
WHEREAS, the Bank and Director wish to clarify, amend and restate the
Bank of Xxxxxx Retirement Agreement, as provided herein, with an effective date
as of August 1, 2003 ("Agreement").
NOW, THEREFORE, in consideration of the foregoing premises, the
services to be performed in the future, as well as the mutual promises and
covenants contained herein, the Director and the Bank agree as follows.
AGREEMENT
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Accrual Balance" means the amount required to be accrued by the
Bank according to generally accepted accounting principles to account for
benefits that may become payable to the Director under this Agreement and as
specified in Schedule 1 attached hereto.
1.2 "Affiliate" means any entity, corporation or other business
organization controlled by, controlling or under common control with the Bank.
1.13 "Change in Control" means the occurrence of any one of the
following events:
(a) consummation of a reorganization, merger, consolidation,
sale of all or substantially all of the assets of the Bank,
or similar transaction or series of
transactions, in which the stockholders of the Bank who
were stockholders of the Bank immediately prior to the
transaction hold less than fifty percent (50%) of the
combined voting power of the Bank immediately after
consummation of the transaction or series of transactions;
or
(b) the filing of a report on Schedule 13D or another form or
schedule (other than Schedule 13G) that is required to be
filed under Sections 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended, if the schedule discloses
that the filing person or persons acting in concert has or
have become beneficial owner of fifty percent (50%) or more
of a class of the Bank's voting securities. However, this
definition shall not apply to beneficial ownership of
voting securities of the Bank held in fiduciary capacity by
an entity in which the Bank directly or indirectly
beneficially owns fifty percent (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 the Bank's employees.
1.4 "Disability" means that the Director suffers a sickness, accident
or injury that has been determined to be a permanent disability by the carrier
of any Bank-sponsored individual or group disability insurance policy covering
the Director. If the Director is not covered by such a policy, Disability means
suffering a sickness, accident or injury that (a) has been determined by the
Social Security Administration to be a disability rendering the Director totally
and permanently disabled, or (b) in the judgment of a physician satisfactory to
the Bank, prevents the Director from performing substantially all of the
Directory's normal duties for the Bank. As a condition to receiving any
Disability benefits, the Bank may require the Director to submit to physical or
mental evaluations and tests, as the Bank's Board of Directors deems
appropriate. The Director must submit proof to the Bank of the carrier's or the
Social Security Administration's determination upon the request of the Bank.
1.5 "Early Termination" means involuntary Termination of Service
before reaching Normal Retirement Age. Early Termination does not include
voluntary Termination of Service, Termination of Service as a result of death or
Disability, or Termination of Service for Cause.
1.6 "Normal Retirement Age" means the Director's 65th birthday.
1.7 "Plan Year" means a year period beginning on the effective ate of
this Agreement and ending on each respective anniversary of such date.
1.8 "Termination of Service for Cause" means the definition of
termination for cause specified in any employment agreement existing on the date
hereof or hereafter entered into between the Director and the Bank. If the
Director is not a party to an employment agreement containing a definition of
termination of cause, then Termination of Service for Cause means the
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Bank has terminated the Director's services for any of the following reasons, as
determined by the Bank's Board of Directors:
(a) an international or willful act of fraud, embezzlement,
theft, disloyalty or personal dishonesty in connection
with the Director's duties or in the performance of
services to the Bank, or gross negligence on the part of
the Director in the performance of services to the Bank;
(b) intentional or willful wrongful damage to property of the
Bank or any of its Affiliates;
(c) intentional or wrongful disclosure of trade secrets or
confidential information of the Bank or any of its
Affiliates; or
(d) conviction under any law or violation of the Bank policy
committed in connection with the Director's service and
resulting in an adverse effect on the Bank.
1.9 "Termination of Service" means that the Director ceases to be a
member of the Bank's Board of Directors for any reason, other than Termination
of Service for Cause. For purposes of this Agreement, if there is a dispute over
the service status of the Director or the date of the Director's Termination of
Service, the Bank shall have the sole and absolute right to decide the dispute.
Article 2
Retirement Benefits
2.1 Normal Retirement Benefit. Subject to the general limitations
under Article 4 hereof, upon Termination of Service on or after Normal
Retirement Age, the Bank shall pay to the Director the benefit described in this
Article 2.1 instead of any other benefit under this Article 2.
(a) Amount of Benefit. The annual benefit under this Article
2.1 is eighteen thousand dollars ($18,000).
(b) Payment of Benefit. The Bank shall pay this annual benefit
to the Director in twelve (12) equal monthly installments
beginning on the last day of the month after the month in
which Termination of Service occurs. The benefit shall be
paid to the Director on the last day of each month for one
hundred twenty (120) months.
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2.2 Early Termination Benefit. Subject to the general limitations
under Article 4 hereof, upon Early Termination, the Bank shall pay to the
Director the benefit described in this Article 2.2 instead of any other benefit
under this Article 2.
(a) Amount of Benefit. The benefit under this Article 2.2 shall
be the Accrual Balance for the last full month of the
Director's service ending immediately before the date on
which Early Termination occurred (except during the first
Plan Year, when the benefit shall be the Accrual Balance at
the end of Plan Year 1). For every year except the first
Plan Year, the benefit under this Article 2.2 is determined
by vesting the Director in one hundred percent (100%) of
the Accrual Balance for the last full month of the
Director's service ending immediately before the date on
which Early Termination occurs.
(b) Payment of Benefit. The Bank shall pay this benefit to the
Director in one hundred twenty (120) equal monthly
installments beginning on the last day of the month after
the month in which Termination of Service occurs.
2.3 Disability of Benefit. Subject to the general limitations under
Article 4 hereof, upon Termination of Service due to Disability before his or
her Normal Retirement Age, the Bank shall pay to the Director the benefit
described in this Article 2.3 instead of any other benefit under this Article 2.
(a) Amount of Benefit. The benefit under this Article 2.3 shall
be the Accrual Balance for the last full month of the
Director's service ending immediately before the date on
which Termination of Service due to Disability occurred
(except during the first Plan Year 1). For every year
except the first Plan Year, the benefit under this Article
2.3 is determined by besting the Director in one hundred
percent (100%) of the Accrual Balance for the last full
month of the Director's service ending immediately before
the date on which Termination of Service due to Disability
occurs.
(b) Payment of Benefit. The Bank shall pay this benefit to the
Director in one hundred twenty (120) equal monthly
installments beginning on the last day of the month after
the month in which Termination of Service occurs.
(c) If the benefit under this Article 2.3 would cause a
reduction or set-off of any Bank-sponsored disability plan
benefits, the benefits under this Agreement shall be
deferred until all other Bank-sponsored disability plan
benefits are exhausted.
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2.4 Change in Control Benefit. Upon a Change in Control, if the
Director's Normal Retirement Age or Termination of Service for any reason has
not occurred, the Bank shall pay to the Director the benefit described in this
Article 2.4 instead of any other benefit under this Article 2, regardless of
whether the Director's Termination occurs after the Change in Control.
(a) Amount of Benefit. The benefit under this Article 2.4 shall
be determined by vesting the Director in the present value
of one hundred percent (100%) of the Accrual Balance for
the Director's Normal Retirement Benefit at Normal
Retirement Age as set forth under Article 2.1. The vesting
of this Accrual Balance shall be accelerated immediately
upon a Change in Control.
(b) Payment of Benefit. The Bank shall pay the present value of
the amount of the Accrual Balance to the Director in a
single lump sum within thirty (30) days after the Change in
Control. The present value of the Accrual Balance shall be
determined by using the long-term applicable federal rate
at the time of the Change in Control.
(c) No "Parachute Payments." Notwithstanding any provision of
this Article 2.4, no payment shall be made pursuant to this
Agreement to the Director if he or she constitutes a
"disqualified individual," as defined under Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code"),
to the extent that such payment, when aggregated with all
other payments considered for purposes of calculating a
"parachute payment," results in an "excess parachute
payment" under the Code. If the Internal Revenue Service or
any other tax authority makes any claim, demand or
assessment in any form based directly or indirectly, in
whole or in part, on the allegation that any payment under
this Agreement and/or any other payment by the Bank to or
for the benefit of the Director at any time constitutes a
"parachute payment" under Section 280G of the Code or any
similar or successor provision of federal or state law, the
Director agrees that he or she shall return the amounts
constituting the "excess parachute payment."
2.5 Payout of Normal Retirement Benefit, Early Termination Benefit or
Disability Benefit after a Change in Control. If a Change in Control occurs at
any time during a benefit payment period under this Agreement, and if at the
time of that Change in Control, the Director is receiving the Normal Retirement
Age benefit provided by Article 2.1, the Early Termination benefit provided by
Article 2.2, or the Disability benefit provided by Article 2.3, the Bank shall
pay to the Director in a lump sum within thirty (30) days after the Change in
Control, the Accrual Balance corresponding to the respective benefit for the
last full month ending immediately before the effective date of the Change in
Control after deduction of any Normal Retirement Age, Early
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Termination or Disability benefits already paid. If the remaining Accrual
Balance is paid in a single lump sum, the Bank shall have no further obligations
under this Agreement.
2.6 Petition for Lump Sum Payment. If the Director is entitled to the
Normal Retirement Age benefit provided by Article 2.1, the Early Termination
benefit provided by Article 2.2 or the Disability benefit provided by Article
2.3, the Director may petition the Board of Directors to have the Accrual
Balance corresponding to that particular benefit paid to the Director in a
single lump sum after the deduction of any Early Termination or Disability
amounts already paid. The Board of Directors shall have sole and absolute
discretion about whether to pay the Accrual Balance in a lump sum. If the
Accrual Balance is paid in a single lump sum, the Bank shall have no further
obligations under this Agreement.
Article 3
Death Benefits
3.1 Death Benefits. For so long as the Bank, in its sole discretion,
maintains a life insurance policy on the Director, after the Director's death
the Bank shall pay to the Director's beneficiary(ies) or estate the benefit
described in the Split Dollar Agreement and Split Dollar Endorsement, attached
to this Agreement as Exhibit A, between the Bank and the Director, in accordance
with the terms and conditions of the Split Dollar Agreement and Split Dollar
Endorsement. If any other benefit payments are being made pursuant to this
Agreement at the time of the Director's death, they shall cease immediately, and
the Director shall be entitled only to the benefits described in this Article 3.
3.2 Beneficiary Designations. With regard to the death benefits under
this Article 3, the Director shall designate a beneficiary by filing a written
beneficiary designation, in the form of Exhibit B, with the Bank. The Director
may revoke or modify the designation at any time by filing a new designation.
However, designations will be effective if and only if signed by the Director
and received by the Bank 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, the Director's estate shall be the beneficiary.
3.3 Facility of Payment. If a benefit is payable to a minor, to a
person declared incapacitated or to a person incapable of handling the
disposition of his or her property, the Bank may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incapacitated person or incapable person. The may require proof on
incapacity, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Bank from all liability with respect to such benefit.
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Article 4
General Limitations
4.1 Termination of Service for Cause. Notwithstanding any provision
of this Agreement to the contrary, the Bank shall not pay any benefit under this
Agreement if the Director's actions result in Termination of Service for Cause.
4.2 Confidential Information. The Director acknowledges that during
the course of his or her services with the Bank, he or she handled confidential
information of the Bank and its Affiliates. The Director agrees he or she will
retain in the strictest confidence all confidential matters that relate to the
Bank or its Affiliates, including, without limitation, pricing lists, business
plans, financial projections and reports, business strategies, internal
operation procedures and other confidential business information from which the
Bank derives an economic or competitive advantage or from which the Bank might
derive such advantage in its business, whether or not labeled "secret" or
"confidential," and not to disclose such information directly or indirectly or
use such information in any way, at any time, except as required by law.
4.3 Trade Secrets. The Director shall not disclose to any others or
take or use for the Director's own purposes or purposes of any others at any
time, any of the Bank's trade secrets, including without limitation,
confidential information; customer lists; information concerning current or any
future and proposed work, service or products; the fact that any such work,
services or products are planned, under consideration, or in production, as well
as any description thereof; computer programs; or computer software. The
Director agrees that these restrictions shall also apply to (a) trade secrets
belonging to third parties in the Bank's possession, and (b) trade secrets
conceived, originated, discovered or developed by the Director during the term
of his or her service.
4.4 Inventions; Ownership Rights. The Director agrees that all ideas,
techniques, inventions, systems, formulas, discoveries, technical information,
programs, prototypes and similar developments ("Developments") developed,
created, discovered, made, written or obtained by him or her in the course of or
as a result, directly or indirectly, of performance of his or her service to the
Bank, and all related intellectual property, including copyrights, parent
rights, trade secrets and other forms of protection thereof, shall be and remain
the property of the Bank. The Director agrees to execute or cause to be executed
such assignment and applications, registrations and other documents and to take
such other action as may be requested by the Bank to enable the Bank to protect
its rights to any such Developments.
4.5 No Disparagement. The parties agree to treat each other
respectfully and professionally and not disparage the other party (or the other
party's officers, directors, employees, shareholders and agents) in any manner
likely to be harmful to them or their business, business reputation or personal
reputation; provided that both the Director and the Bank will respond accurately
and fully to any question, inquiry or request for information when required by
legal process.
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4.6 Non-Interference; No Solicitation. The Director agrees not to
interfere with any of the Bank's contractual obligations with others.
Furthermore, the Director agrees that during the longer of (i) the period while
he or she is receiving any benefit payments pursuant to this Agreement, or (ii)
a period of two (2) years after the date of Termination of Service or
Termination of Service for Cause, not to, without the Bank's express written
consent, on his or her behalf of another: (a) contact or solicit the business of
any client, customer, creditor or licensee of the Bank or its Affiliates, or (b)
hire employees of the Bank of its Affiliates.
4.7 Return of Materials. After Termination of Service or Termination
of Service for Cause, the Director agrees to deliver or return to the Bank all
written confidential information furnished by the Bank or its Affiliates or
prepared by the Director in connection with is or her services to the Bank and
to destroy all such information stored on electronic media. The Director shall
retain no copies thereof after his or her Termination of Service or Termination
of Service for Cause.
4.8 Remedies and Injunctive Relief. Without intending to limit the
remedies available to the Bank, the Directors agrees that damages at law are an
insufficient remedy for violation by the Director of his or her covenants
contained in Article 4. Accordingly, the Director hereby agrees that the Bank
may apply for and is entitled to injunctive relief in any court of competent
jurisdiction to restrain the breach or threatened breach of, or otherwise to
specifically enforce, any of his or her covenants contained in this Article 4,
in each case without proof of actual damages, in addition to any other remedies
that may be available under applicable law. The Director hereby waives the claim
or defense that an adequate remedy at law is available to the Bank, and the
Director agrees not to urge in any action or proceeding the claim or defense
that an adequate remedy at law exists. Without limiting the generality of the
foregoing, without limiting the remedies available to the Bank for violation of
this Agreement, and without constituting an election of remedies, if the
Director violates any of the terms of this Article 4 prior to or during the
period when any benefits under this Agreement are being paid, he or she shall
forfeit immediately any rights to and interest in any compensation or benefits
payable under this Agreement, and the Bank may seek repayment of any benefits
already paid to the Director.
4.9 Suicide or Misstatement. The Bank shall not pay any benefit under
this Agreement if it is determined that the Director has committed suicide. In
addition, the Bank shall not pay any benefit under this Agreement if the
Director has made any material omission or misstatement of fact on any
application, resume or on any application for any benefits provided by the Bank.
4.10 Removal. If the Director is removed from service and/or
permanently prohibited from participating in the conduct of the Bank's affair by
an order issued under the Federal Deposit Insurance Act, all obligations of the
Bank under this Agreement shall terminate as of the effective date of the order.
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4.11 Insolvency. If the Commissioner of the California Department of
Financial Institutions appoints the Federal Deposit Insurance Corporation as
receiver for the Bank, all obligations under this Agreement shall terminate as
of the date of the Bank's declared insolvency.
4.12 Default. If the Bank is in default as defined in the Federal
Deposit Insurance Act, all obligations under this Agreement shall terminate as
of the date of default.
4.13 FDIC Open-Bank Assistance. All obligations under this Agreement
will be terminated, except to the extent determined that continuation of the
Agreement is necessary for the continued operation of the Bank, by the Director
of the Office of Thrift Supervision or his or her designee, at the time the
Federal Deposit Insurance Corporation enters into an agreement to provide
assistance to or on behalf of the Bank.
Article 5
Claims and Review Procedures
5.1 Claims Procedure. The Bank shall notify any person or entity that
makes a claim for benefits under this Agreement (the "Claimant") in writing,
within ninety (90) days of Claimant's written application for benefits, of his
or her eligibility or noneligibility for benefits under the Agreement. If the
Bank 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 that there are special circumstances
requiring additional time to make a decision, the Bank 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 ninety (90) days.
5.2 Review Procedure. If the Claimant is determined by the Bank 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 Bank by filing a petition for
review with the Bank within sixty (60) days after receipt of the notice issued
by the Bank. Said petition shall state the specific reasons that the Claimant
believes entitles him or her to benefits or to greater or different benefits.
Within sixty (60) days after the receipt by the Bank of the petition, the Bank
shall afford the Claimant (and counsel, if any) an opportunity to present his or
her positions to the Bank verbally or in writing, and the Claimant (or counsel)
shall have the right to review the pertinent documents. The Bank shall notify
the Claimant of its decision, written in a manner to be understood by the
Claimant and the specific provisions of the Agreement on which the decision is
based. If, because of the need for a hearing, the sixty (60) day period is not
sufficient, the
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decision may be deferred for up to another sixty (60) days at the election of
the Bank, but notice of this deferral shall be given to the Claimant.
Article 6
Miscellaneous
6.1 Binding Effect. This Agreement shall bind the Director and the
Bank, and their beneficiaries, survivors, executors, successors, administrators
and transferees.
6.2 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
Bank, nor does the Agreement interfere with the rights of the Bank's
stockholder(s) not to re-elect the Director or the right of the Bank. The
Agreement also does not require the Director to remain a director nor interfere
with the Director's right to terminate services at any time.
6.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any manner,
except by will or the laws of descent and distribution, except that the Director
shall have the right to assign his or her rights and interests in any insurance
policy that the Bank chooses to maintain on his or her life with respect only to
that portion of the death proceeds designated by the Split Dollar Endorsement
and to exercise all settlement options with respect to such death proceeds.
6.4 Successors; Binding Agreement. The Bank will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Bank, by an assumption agreement in form and substance satisfactory to the
Director, to expressly assume and agree to perform the obligations under this
Agreement. The Bank's failure to obtain such an assumption agreement before such
succession becomes effective shall be considered a breach of this Agreement.
6.5 Amendment and Termination. This Agreement may be amended or
terminated only by a written agreement signed by the Bank and the Director.
6.6 Tax Withholding. The Bank shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
6.7 Applicable Law. This Agreement and all rights hereunder shall be
governed by the internal substantive laws of the State of California, without
regard to principles of conflicts of laws.
6.8 Unfunded Arrangement; No Ownership Rights. The Director and
beneficiary(ies) are general unsecured creditors of the Bank for the payment of
benefits under this Agreement. The benefits represent a mere promise by the Bank
to pay such benefits. The rights to benefits are
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not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment or garnishment by creditors. Any
insurance on the Debtor's life is a general asset of the Bank to which the
Director and beneficiary(ies) have no preferred or secured claim.
In the event that the Bank, in its sole and absolute discretion, elects to
acquire an insurance policy or any other asset to recoup the costs or any
portion thereof of the benefits under this Agreement, then such insurance policy
or other assets shall not be deemed to be held under any trust for the benefit
of the Director or his beneficiaries or to be a security for the performance of
the obligations of the Director under this Agreement, but shall be, and remain,
a general unpledged, unrestricted asset of the Bank. The Director and his or her
beneficiaries shall have no rights whatsoever with respect to, or any claim
against, any such insurance policy or other asset.
6.9 Entire Agreement. This Agreement constitutes the entire agreement
between the Bank and the Director a sot the subject matter hereof. No rights are
granted to the Director under this Agreement other than those specifically set
forth herein.
6.10 Administration. The Bank shall have all powers necessary to
administer this Agreement, including but not limited to:
(a) interpreting the provisions of this Agreement;
(b) establishing and revising the method of accounting for the
Agreement;
(c) maintaining a record of benefit payments; and
(d) establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
6.11 Named Fiduciary. The Bank shall be the named fiduciary and plan
administrator under this Agreement. The named fiduciary may delegate to others
certain aspects of the management and operational responsibilities of the plan,
including the employment of advisors and the delegation of ministerial duties to
qualified individuals.
6.12 Severability. If for any reason any provision of this Agreement
is held invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall continue in
full force and effect to the full extent consistent with the law. If any
provision of this Agreement is held invalid in part, such invalidity shall in no
way affect the rest of such provision not held so invalid, and the rest of such
provision together with all other provisions of this Agreement shall continue in
full force and defect to the full extent consistent with the law.
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6.12 Headings. The headings of sections herein are included solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Agreement.
6.14 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice.
(a) If to the Bank, to:
Bank of Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chairman of the Board of Directors
(b) If to the Director, to:
Xxxxx Standing
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxx 00000
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
6.15 Termination or Modification of Agreement by Reason of Changes in
the law, Rules or Regulations. The Bank is entering into this Agreement on the
assumption that certain existing corporate, accounting and tax laws, rules and
regulations will continue in effect in their current form. If the corporate,
accounting and tax laws, rules and regulations change materially and if the
changes have a material detrimental effect on this Agreement, the Bank reserves
the right to terminate or modify this Agreement accordingly, subject to
obtaining the written consent of the Director, which shall not be unreasonably
withheld.
6.16 Advice of Counsel. Before signing this Agreement, the Director
either (a) consulted with and obtained advice from the Director's independent
legal counsel concerning the legal nature and operations of this Agreement,
including its impact on the Director's rights, privileges and obligations, or
(b) freely and voluntarily decided not to have the benefit of such consultation
and advice with legal counsel.
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IN WITNESS WHEREOF, the Director and a duly authorized officer of the
Bank have signed this Agreement on the dates stated below.
DIRECTOR BANK OF XXXXXX
Name: Xxxxx Standing By: /s/ XXXXX XXXXXX
------------------------------------- ------------------------------
Signature: /s/ XXXXX STANDING Name: Xxxxx Xxxxxx
-------------------------------- ----------------------------
Date: May 26, 2004 Title: Vice Chairman
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Date: 6/15/04
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SCHEDULE 1
Xxxxx Standing
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Ending
Account
Year Age Balance
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1 60 10,544
2 61 33,690
3 62 59,799
4 63 89,180
5 64 122,086
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6 65 125,885
7 66 115,516
8 67 104,495
9 68 92,757
10 69 80,256
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11 70 66,942
12 71 52,763
13 72 37,663
14 73 21,580
15 74 4,453
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16 75 0
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EXHIBIT A
SPLIT DOLLAR AGREEMENT AND SPLIT DOLLAR ENDORSEMENT
EXHIBIT B
BENEFICIARY DESIGNATION
Xxxxx Standing
I designate the following as beneficiary(ies) of any death benefits
under this Director Retirement Agreement:
Primary:
Name: Xxxxxx Xxxx Standing
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Address: X.X. Xxx 000, Xxxxxxx, XX 00000
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Social Security Number: ###-##-####
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Contingent: Xxxxxxxx Xxxx Standing, II &
Xxxxxx Xxxx Standing, Trustees
UA DTD Dec. 31, 1999
Name: "The Standing 1999 Revocable Trust"
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Address: X.X. Xxx 000, Xxxxxxx, XX 00000
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Social Security Number:
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Note: To name a trust as beneficiary, please provide the name of the
trustee(s) and the exact name and date of the trust agreement.
I understand that I may change these beneficiary designations by filing
a new written designation with the 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 and our marriage is subsequently
dissolved. This Beneficiary Designation amends and supercedes any previous
Beneficiary Designation earlier filed with the Bank.
Signature: /s/ XXXXX STANDING
------------------------------------
Date: May 26, 2004
-----------------------------------------
Received by the Bank this 9th day of October, 2004.
By: /s/ XXXXX XXXXXX
-------------------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------------
Title: Vice Chairman
----------------------------------------
BANK OF XXXXXX
SPLIT DOLLAR AGREEMENT
THIS SPLIT DOLLAR AGREEMENT is entered into as of this 1st day of
August, 2003 (the "Split Dollar Agreement"), by and between Bank of Xxxxxx, a
California-chartered bank with its main office in Jackson, California (the
"Bank"), and Xxxxx Standing (the "Director"). This Split Dollar Agreement
incorporates by reference the Split Dollar Endorsement entered into on even date
herewith, or as subsequently amended, by and between the aforementioned parties
and as attached hereto (the "Endorsement").
WHEREAS, to encourage the Director to continue to provide services to
the Bank, the Bank is willing to divide the death proceeds of life insurance
policies on the Director's life, and the Bank will pay life insurance premiums
from its general assets.
WHEREAS, the Bank and the Directors are entering concurrently into a
Director Retirement Agreement of even date herewith (the "Director Retirement
Agreement"), to which this Split Dollar Agreement is attached as an exhibit.
NOW, THEREFORE, in consideration of the services to be performed in the
future, as well as the mutual promises and convents contained herein, the
Director and Bank agree as follows:
AGREEMENT
Article 1
General Definitions
Capitalized terms not otherwise defined in this Split Dollar Agreement
and used herein are as defined in the Director Retirement Agreement and are
incorporated by reference. The following terms shall have the meanings
specified:
1.1 "Insurers" mean Massachusetts Mutual Life Insurance Company and
MONY Life Insurance Company of America.
1.2 "Policy" or "Policies" means any or all of policy number 0057559
issued by Massachusetts Mutual Life Insurance Company and policy number
B2501-98-33 issued by MONY Life Insurance Company of America.
1.3 "Insured" means the Director.
Article 2
Policy Ownership Interests
2.1 Bank Ownership. The Bank is the sole owner of the Policies and
shall have the right to exercise all incidents of ownership. The Bank shall be
the beneficiary of my death
proceeds remaining after the Director's interest has been paid under Article 2.2
of this Split Dollar Agreement.
2.2 Director's Interest. The Director shall have the right to
designate the beneficiary(ies) of death proceeds in accordance with the Director
Retirement Agreement. In the event of the Insured's death, then the Insured's
Beneficiary(ies) shall be entitled to the benefit as set forth in the
Endorsement.
2.3 Option to Purchase. The bank shall not sell, surrender or
transfer ownership of the Policies while this Split Dollar Agreement is in
effect without first giving the Director a right of first refusal, subject to
the Insurers' approval, to purchase the Policies for the Policies' terminal
reserve value. The right of first refusal to purchase the Policies must be
exercised within sixty (60) days from the date the Bank gives written notice of
the Bank's intention to sell, surrender or transfer ownership of the Policies.
This provision shall not impair the right of the Bank to terminate this Split
Dollar Agreement.
Article 3
Premiums
3.1 Premium Payment. The Bank shall pay any premiums due on the
Policies.
3.2 Imported Income. The Bank shall impute income to the Director in
an amount equal to (a) the current term rate for the Director's age, multiplied
by (b) the net death benefit payable to the Director's beneficiary(ies). The
"current term rate" is the minimum amount required to be imputed under
applicable Internal Revenue Service Revenue Rulings. The Bank or its
administrator will report to the Insured the amount of imputed income each year
on Form W-2 or 1099, whichever is applicable, or their equivalent.
Article 4
Assignment
The Director may not, without written consent of the Bank, assign to
any individual, trust or other organization, any right, title or interest in the
Policies, nor any rights, options, privileges or duties created under this Split
Dollar Agreement, except in accordance with the Director Retirement Agreement.
Article 5
Insurers
The Insurers shall be bound only the terms of the Policies. Any
payments the Insurers make or actions they take in accordance with the Policies
shall fully discharge them from all claims, suits and demands of all entities or
persons. The Insurers shall not be considered parties to this Split Dollar
Agreement, but shall respect the rights of the parties as herein developed upon
receiving an executed copy of this Split Dollar Agreement.
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Article 6
Claims Procedure
6.1 Claims Procedure. A person or beneficiary ("Claimant") who has
not received benefits under this split Dollar Agreement that he or she believes
should be paid shall make a claim for the benefits.
6.1.1 Initiation - Written Claim. The Claimant initiates a claim
by submitting to the Bank a written claim for the benefits.
6.1.2 Timing of Bank Response. The Bank shall respond to such
Claimant within ninety (90) days after receiving the claim. If the Bank
determines that special circumstances require additional time for processing the
claim, the Bank can extend the response period by an additional ninety (90) days
by notifying the Claimant in writing, prior to the end of the initial ninety
(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 Bank expects
to render its decision.
6.1.3 Notice of Decision. If the Bank denies all or part of the
claim, the Bank shall notify the Claimant in writing of such denial. The Bank
shall write the notification in a manner calculated to be understood by the
Claimant. The notification shall set forth:
6.1.3.1 The specific reasons for the denial,
6.1.3.2 A reference to the specific provisions of the
Split Dollar Agreement on which the denial is based,
6.1.3.3 A description of any additional information or
material necessary for the Claimant to perfect the claim and an explanation of
why it is needed,
6.1.3.4 An explanation of the Split Dollar Agreement's
review procedures and the time limits applicable to such procedures, and
6.1.3.5 A statement of the Claimant's right to bring a
civil action under applicable ERISA regulations following an adverse benefit
determination on review.
6.2 Review Procedure. If the Bank denies all or part of the claim,
the Claimant shall have the opportunity for a full and fair review by the Bank
of the denial, as follows:
6.2.1 Initiation - Written Request. To initiate the review, the
Claimant, within sixty (60) days after receiving the Bank's notice of denial,
must file with the Bank 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
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relating to the claim. The Bank 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
Bank 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 Bank Response. The Bank shall respond in writing
to such Claimant within sixty (60) days after receiving the request for review.
If the Bank determines that special circumstances require additional time for
processing the claim, the Bank can extend the response period by an additional
sixty (60) days by notifying the Claimant in writing, prior to the end of the
initial sixty (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
Bank expects to render its decision.
6.2.5 Notice of Decision. The Bank shall notify the Claimant in
writing of its decision on review. The Bank shall write the notification in a
manner calculated to be understood by the claimant. The notification shall set
forth:
6.2.5.1 The specific reason for the denial,
6.2.5.2 A reference to the specific provisions of the
Split Dollar Agreement on which the denial is based,
6.2.5.3 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
6.2.5.4 A statement of the claimant's right to bring a
civil action under the applicable ERISA regulations.
Article 7
Amendments and Termination
7.1 Amendment. This Split Dollar Agreement may be amended only by a
writing signed by the Bank and the Insured.
7.2 Termination of Agreement. This Split Dollar Agreement shall
terminate upon the occurrence of any one of the following:
(a) Insured's actions result in Termination of Service for
Cause, as defined in the Director Retirement Agreement;
4
(b) Completed payment of benefits in accordance with the
Director Retirement Agreement;
(c) If payment of benefits pursuant to the Director Retirement
Agreement are terminated because the Insured breaches any provision therein; or
(d) Distribution of the death benefit proceeds in accordance
with Article 2.2 above.
Article 8
Miscellaneous
8.1 Binding Effect. This Split Dollar Agreement shall bind the
Director and the Bank and their beneficiaries, survivors, executors,
administrators and transferees, and any Policy beneficiary.
8.2 No Guarantee of Service. This Split Dollar Agreement is not a
contract for services. It does not give the Director the right to remain a
director of the Bank, nor does it interfere with the rights of the Bank's
stockholder(s) not to re-elect the Director or the right of the stockholder(s)
or the Board of Directors to remove an individual as a director of the Bank. The
Agreement also does not require the director to remain a director nor interfere
with the Director's right to terminate services at any time.
8.3 Successors; Binding Agreement. By an assumption agreement in form
and substance satisfactory to the Director, the Bank shall require any successor
(whether director or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business or assets of the Bank, to expressly
assume and agree to perform this split Dollar Agreement in the same manner and
to the same extent that the Bank would be required to perform this Split Dollar
Agreement if no succession had occurred, unless the Change in Control benefits
of the Director Retirement Agreement have been or are being paid.
8.4 Applicable Law. This Split Dollar Agreement and all rights
hereunder shall be governed by and construed according to the laws of the State
of California, without regard to principles of conflicts of laws.
8.5 Entire Agreement. This Split Dollar Agreement (including the
Endorsement) and the Director Retirement Agreement constitute the entire
agreement between the Bank and the Director concerning the subject matter
hereof. No rights are granted to the Director under this Split Dollar Agreement
other than those specifically set forth herein or in the Director Retirement
Agreement.
8.6 Administration. The Bank shall have powers that a necessary to
administer this Split Dollar Agreement, including, but not limited to the power
to:
(a) interpret the provisions of this Split Dollar Agreement;
5
(b) establish and revise the method of accounting for this
Split Dollar Agreement;
(c) maintain a record of benefit payments; and
(d) establish rules and prescribe forms necessary or desirable
to administer this Split Dollar Agreement.
8.7 Named Fiduciary. The Bank shall be the named fiduciary and plan
administrator under this Split Dollar Agreement. The Bank may delegate to others
certain aspects of management and operational responsibilities, including the
employment of advisors and the delegation of ministerial duties to qualified
individuals.
8.8 Funding Policy. The funding policy for this Split Dollar
Agreement shall be to maintain the Policies in force by paying, when due, all
premiums required.
8.9 Basis of Payment of Benefits. Direct payment by the Insurers is
the basis for payment of benefits under this Split Dollar Agreement, with those
benefits in turn being based on the payment of premiums as provided in this
Split Dollar Agreement.
8.10 Severability. If for any reason any provision of this Split
Dollar Agreement is held invalid, such invalidity shall not affect any other
provision o this Split Dollar Agreement not held so invalid, and each such other
provision shall, to the full extent consistent with the law, continue in full
force and effect. If any provision of this Split Dollar Agreement shall be held
invalid in part, such invalidity shall in no way affect the remainder of such
provision not held so invalid, and the remainder of such provision, together
with all other provisions of this Split Dollar Agreement shall continue, to the
full extent consistent with the law, in full force and effect.
8.11 Headings. The headings of actions herein are included solely for
the convenience of reference and shall not affect the meaning or interpretation
of any provision of this Split Dollar Agreement.
8.12 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice.
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(a) If to the Bank, to:
Bank of Xxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
Attn: Chairman of the Board of Directors
(b) If to the Director, to:
Xxxxx Standing
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxx 00000
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
IN WITNESS WHEREOF, the Bank has caused this Split Dollar Agreement to
be duly executed by its proper officer, and the Director can hereunto set his
hand at Jackson, California, on the day and year first set forth above.
BANK OF XXXXXX
Received by the Bank this 9th day of
October, 2004.
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
DIRECTOR
By: /s/ XXXXX STANDING
----------------------------------------
Name: Xxxxx Standing
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BANK OF XXXXXX
SPLIT DOLLAR ENDORSEMENT
Policy No. 00-57559 Insured: Xxxxx Standing
Massachusetts Mutual Life Insurance Company
and
Policy No. B2501-98-33
MONY Life Insurance Company of America
Supplementing and amending the application for insurance to Bank of
Xxxxxx (the "Bank") on Xxxxx Standing (the "Insured"), the applicant requests
and directs that:
BENEFICIARIES
1. The Bank, located in Jackson, California, shall be the beneficiary
of any death proceeds remaining after the Insured's interest has been paid under
paragraph 2 below.
2. The Insured or the Insured's transferee shall designate the
beneficiary(ies) of death proceeds pursuant to that certain Director Retirement
Agreement between the Bank and the Insured as of even date herewith (the
"Director Retirement Agreement"). Provided that the Insured is, at the time of
death, (a) providing services to the Bank as a member of the Board of Directors
or as a consultant, or (b) receiving benefits under the Director Retirement
Agreement, then the Insured's beneficiary(ies) shall be entitled to the Accrual
Balance next to the Director's age at the time of death on Schedule 1 attached
thereto.
OWNERSHIP
3. The Owner of the Policies shall be the Bank. The Owner shall have
all ownership rights in the Policies except as may be specifically granted to
the Insured or the Insured's beneficiaries under this Split Dollar Policy
Endorsement (the "Endorsement").
MODIFICATION OF ASSIGNMENT PROVISIONS OF THE POLICIES
4. The Insured shall have the right to assign his or her rights and
interests in the Policies with respect only to that portion of the death
proceeds designated in paragraph 2 of this Endorsement and to exercise all
settlement options with respect to such death proceeds.
5. Upon the death of the Insured, the interest of any transferee of
the Owner of the Policies designated in paragraph 3 above shall be limited to
the portion of the proceeds described in paragraph 1 above.
OWNER'S AUTHORITY
6. The Insurers are hereby authorized to recognize the Owner's claim
to rights hereunder without investigating the reason for any action taken by the
Owner, including the Owner's statement of the amount of premiums the Owner has
paid on the Policies. The signature of the Owner shall be sufficient for the
exercise of any rights under this Endorsement. The receipt of the Owner for any
sums received by it shall be a full discharge and release therefore to the
Insurers, and the receipt of the Insured's beneficiary(ies) for any sums
received by it or them shall be a full discharge and release therefore to the
Owner and the Insurers. The Insurers may rely on a sworn statement in form
satisfactory to it furnished by the Owner, its successors or assigns as to their
interest, and any payments made pursuant to such statement shall discharge the
Bank accordingly.
7. Any transferee's rights shall be subject to this Endorsement.
8. The Owner accepts and agrees to this Endorsement.
9. The undersigned is signing in a representative capacity and
warrants that he or she has the authority to bind the entity on whose behalf
this document is being executed.
Signed at Jackson, California, this 1st day of August, 2003.
BANK OF XXXXXX
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
The Insured accepts and agrees to the foregoing
Signed at Jackson, California, this 1st day of August, 2003.
DIRECTOR
By: /s/ XXXXX STANDING
---------------------------------
Name: Xxxxx Standing
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EXHIBIT B
BENEFICIARY DESIGNATION
Xxxxx Standing
I designate the following as beneficiary(ies) of any death benefits
under this Director Retirement Agreement:
I designate the following as beneficiary(ies) of any death benefits
under this Director Retirement Agreement:
Primary:
Name: Xxxxxx Xxxx Standing
-------------------------------------------------------------------
Address: X.X. Xxx 000, Xxxxxxx, XX 00000
----------------------------------------------------------------
Social Security Number:
-------------------------------------------------
Contingent: Xxxxxxxx Xxxx Standing, II &
Xxxxxx Xxxx Standing, Trustees
UA DTD Dec. 31, 1999
Name: "The Standing 1999 Revocable Trust"
-------------------------------------------------------------------
Address: X.X. Xxx 000, Xxxxxxx, XX 00000
----------------------------------------------------------------
Social Security Number:
-------------------------------------------------
Note: To name a trust as beneficiary, please provide the name of the
trustee(s) and the exact name and date of the trust agreement.
I understand that I may change these beneficiary designations by filing
a new written designation with the 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 and our marriage is subsequently
dissolved. This Beneficiary Designation amends and supercedes any previous
Beneficiary Designation earlier filed with the Bank.
Signature: /s/ XXXXX STANDING
------------------------------------
Date: Oct. 8, 2003
Received by the Bank this 15 day of June, 2004.
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Chairman of the Board
----------------------------------------
AMENDMENT TO
BANK OF XXXXXX
SPLIT DOLLAR AGREEMENT
WHEREAS, the Bank of Xxxxxx (the "Bank") and Xxxxx Standing
("Director") entered into a Split Dollar Agreement as of the 1st day of August,
2003, and
WHEREAS, the Bank and the Director wish to amend Section 2.2 of the
Split Dollar Agreement
NOW, THEREFORE, the Bank and Director wish to amend Section 2.2 of the
Split Dollar Agreement as follows:
Section 2.2 is replaced in its entirety as follows:
2.2 Director's Interest. The Director shall have the right to
designate the beneficiary(ies) of death proceeds in accordance with the Director
Retirement Agreement. In the event of the Insured's death, then the Insured's
Beneficiary(ies) shall be entitled to the amount of Split Dollar Death Benefits
at the age of death as set forth in Schedule C attached hereto.
IN WITNESS WHEREOF, this amendment has been entered into as of the
dates set forth below.
DIRECTOR BANK OF XXXXXX
/s/ XXXXX STANDING By: /s/ XXXXX XXXXXX
------------------------------------- -----------------------------------
Xxxxx Standing
Name: Xxxxx Xxxxxx
Date: May 26, 2004 ---------------------------------
Title: Vice Chairman
--------------------------------
Date: 6/15/04
---------------------------------
EXHIBIT C
Split Dollar Agreement and Split Dollar Endorsement
-------------------------------------------------------------------
Split-Dollar
Death
Year Age Benefit
-------------------------------------------------------------------
1 60 135,000
2 61 135,000
3 62 135,000
4 63 135,000
5 64 135,000
-------------------------------------------------------------------
6 65 135,000
7 66 123,988
8 67 113,419
9 68 102,184
10 69 90,177
-------------------------------------------------------------------
11 70 77,411
12 71 63,815
13 72 49,335
14 73 33,914
15 74 17,491
-------------------------------------------------------------------
16 75 0
-------------------------------------------------------------------
