EXHIBIT 10.5.2
PACIFIC STATE BANK
SPLIT DOLLAR AGREEMENT
(ADDENDUM A TO THE PACIFIC STATE BANK SALARY CONTINUATION AGREEMENT)
THIS AGREEMENT is adopted this __ day of September, 2003, by and between PACIFIC
STATE BANK, located in Stockton, California (the "Company'), and _______________
the "Executive"). This Agreement shall append the Split Dollar Endorsement
entered into on even date herewith or as subsequently amended, by and between
the aforementioned parties.
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to divide the death proceeds of a life insurance policy on
the Executive's life. The Company will pay life insurance premiums from its
general assets.
AGREEMENT
The Company and the Executive agree as follows:
Article 9
GENERAL DEFINITIONS
The following terms shall have the meanings specified:
9.1 "Insured" means the Executive.
9.2 "Insurer" means each life insurance carrier in which there is
a Split Dollar Policy Endorsement attached to this Agreement.
9.3 "Normal Retirement Age" means the Executive attaining
sixty-five (65) years of age.
9.4 "Policy" means the specific life insurance policy or policies
issued by the Insurer.
9.5 "Salary Continuation Agreement" means that Salary Continuation
Agreement between the Company and the Executive on even date herewith or as
subsequently amended.
9.6 "Termination for Cause" shall be defined as set forth in
Article 7.
9.7 "Termination of Employment" means that the Executive ceases to
be employed by the Company for any reason, other than by reason of a leave of
absence approved by the Company.
Article 10
POLICY OWNERSHIP/INTERESTS
10.1 Company Ownership. The Company is the sole owner of the Policy
and shall have the right to exercise all incidents of ownership. The Company
shall be the beneficiary of the remaining death proceeds of the Policy after the
Interest of the Executive or the Executive's transferee has been paid according
to Section 2.2 below.
10.2 Executive's Interest. The Executive shall have the right to
designate the beneficiary of the death proceeds. The Executive shall also have
the right to elect and change settlement options that may be permitted. Upon the
termination of this Agreement according to Article 7 herein, the Executive, the
Executive's transferee or the Executive's beneficiary shall have no rights or
interests in the Policy and no death benefit shall be paid under this Section
2.2.
10.2.1 Death During Active Service. If the Executive dies
while in the active service of the Company, the Company shall pay to the
Executive's beneficiary $______ (_________ dollars) upon the death of the
Executive.
10.2.2 Death During Payment of a Benefit under the Salary
Continuation Agreement. If the Executive dies after any benefit payments have
commenced under Article 2 of the Salary Continuation Agreement but before
receiving all such payments, the Company shall cease paying the remaining
benefit, if any, and shall then pay to the Executive's beneficiary the split
dollar death benefit described in Section 2.2.1 of this Agreement, less payments
already made to the beneficiary under the Salary Continuation Agreement.
10.2.3 Death After Termination of Employment But Before
Commencement of Payment under the Salary Continuation Plan. If the Executive is
entitled to a benefit under Article 2 of the Salary Continuation Agreement, but
dies prior to the commencement of said benefit payments, the Company shall pay
no benefit under the Salary Continuation Agreement but shall pay to the
Executive's beneficiary the split dollar death benefit described in Section
2.2.1 of this Agreement.
10.3 Comparable Coverage. Upon execution of this Agreement, the
Company shall maintain the Policy in full force and effect and in no event shall
the Company amend, terminate or otherwise abrogate the Executive's interest in
the Policy, unless the Company replaces the Policy with a comparable insurance
policy to cover the benefit provided under this Agreement and the Company and
the Executive execute a new Split Dollar Policy Endorsement for said comparable
insurance policy. The Policy or any comparable policy shall be subject to the
claims or the Company's creditors.
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Article 11
PREMIUMS
11.1 Premium Payment. The Company shall pay any premiums due on the
Policy.
11.2 Economic Benefit. The Company shall determine the economic
benefit attributable to the Executive based on the amount of the current term
rate for the Executive's age multiplied by the aggregate death benefit payable
to the Executive's beneficiary. The "current term rate" is the minimum amount
required to be imputed under Revenue Rulings 64-328 and 66-110, or any
subsequent applicable authority.
11.3 Imputed Income. The Company shall impute the economic benefit
to the Executive on an annual basis.
Article 12
ASSIGNMENT
The Executive may assign without consideration all of the Executive's
interests in the Policy and in this Agreement to any person, entity or trust. In
the event the Executive transfers all of the Executive's interest in the Policy,
then all of the Executive's interest in the Policy and in the Agreement shall be
vested in the Executive's transferee, who shall be substituted as a party
hereunder and the Executive shall have no further interest in the Policy or in
this Agreement.
Article 13
INSURER
The Insurer shall be bound only by the terms of the Policy. Any
payments the Insurer makes or actions it takes in accordance with the Policy
shall fully discharge it from all claims, suits and demands of all entities or
persons. The Insurer shall not be bound by or be deemed to have notice of the
provisions of this Agreement.
Article 14
CLAIMS AND REVIEW PROCEDURE
14.1 Claims Procedure. Any person or entity who has not received
benefits under the Plan that he or she believes should be paid (the "claimant")
shall make a claim for such benefits as follows:
14.1.1 Initiation -- Written Claim. The claimant initiates a
claim by submitting to the Company a written claim for the benefits.
14.1.2 Timing of Company Response. The Company shall respond
to such claimant within 90 days after receiving the claim. If the Company
determines that special circumstances require additional time for processing the
claim, the Company can extend the response period by an additional 90 days by
notifying the claimant in writing, prior to the end of the initial 90-day period
that an additional period is required. The notice of extension must set forth
the special circumstances and the date by which the Company expects to render
its decision.
14.1.3 Notice of Decision. If the Company denies part or all
of the claim, the Company shall notify the claimant in writing of such denial.
The Company shall write the notification in a manner calculated to be understood
by the claimant. The notification shall set forth:
(a) The specific reasons for the denial,
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(b) A reference to the specific provisions of
this Agreement on which the denial is based,
(c) A description of any additional information
or material necessary for the claimant to perfect the claim and an explanation
of why it is needed,
(d) An explanation of this Agreement's review
procedures and the time limits applicable to such procedures, and
(e) A statement of the claimant's right to bring
a civil action under ERISA Section 502(a) (00 Xxxxxx Xxxxxx Code section
1132(a)) following an adverse benefit determination on review.
14.2 Review Procedure. If the Company denies part or all of the
claim, the claimant shall have the opportunity for a full and fair review by the
Company of the denial, as follows:
14.2.1 Initiation -- Written Request. To initiate the
review, the claimant, within 60 days after receiving the Company's notice of
denial, must file with the Company a written request for review.
14.2.2 Additional Submissions -- Information Access. The
claimant shall then have the opportunity to submit written comments, documents,
records and other information relating to the claim. The Company shall also
provide the claimant, upon request and free of charge, reasonable access to, and
copies of, all documents, records and other information relevant (as defined in
applicable ERISA regulations) to the claimant's claim for benefits.
14.2.3 Considerations on Review. In considering the review,
the Company shall take into account all materials and information the claimant
submits relating to the claim, without regard to whether such information was
submitted or considered in the initial benefit determination.
14.2.4 Timing of Company Response. The Company shall respond
in writing to such claimant within 60 days after receiving the request for
review. If the Company determines that special circumstances require additional
time for processing the claim, the Company can extend the response period by an
additional 60 days by notifying the claimant in writing, prior to the end of the
initial 60-day period that an additional period is required. The notice of
extension must set forth the special circumstances and the date by which the
Company expects to render its decision.
14.2.5 Notice of Decision. The Company shall notify the
claimant in writing of its decision on review. The Company shall write the
notification in a manner calculated to be understood by the claimant. The
notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of
this Agreement on which the denial is based,
(c) A statement that the claimant is entitled to
receive, upon request and free of charge, reasonable access to, and copies of,
all documents, records and other information relevant (as defined in applicable
ERISA regulations) to the claimant's claim for benefits, and
(d) A statement of the claimant's right to bring
a civil action under ERISA Section 502(a).
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Article 15
AMENDMENTS AND TERMINATION
15.1 This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Executive.
15.2 In the event this Agreement is terminated under this Article
7, the Company shall not sell, surrender or transfer ownership of the Policy
without first giving the Executive or the Executive's transferee the option to
purchase the Policy for a period of sixty (60) days from written notice of such
intention. The purchase price shall be an amount equal to the cash surrender
value of the Policy.
15.3 Notwithstanding any provision of this Agreement to the
contrary, the Company shall not pay any benefit under this Agreement if the
Company terminates the Executive's employment for:
(a) Willful breach of duty in the course of
employment or habitual neglect of employment responsibilities and duties;
(b) Conviction of any felony or crime involving
moral turpitude, fraud or dishonesty;
(c) Willful violation of any state or federal
banking or securities law, the rules or regulations of any banking agency, or
any material Company rule, policy or resolution resulting in an adverse effect
on the Company; or
(d) Disclosure to any third party by the
Executive, without authority or permission, of any secret or confidential
information of the Company.
15.4 Suicide or Misstatement. The Company shall not pay any benefit
under this Agreement if the Executive 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 Executive has made any material misstatement of fact
on an employment application or resume provided to the Company, or on any
application for any benefits provided by the Company to the Executive.
Article 16
MISCELLANEOUS
16.1 Binding Effect. This Agreement shall bind the Executive and
the Company and their beneficiaries, survivors, executors, administrators and
transfers, and any Policy beneficiary.
16.2 No Guarantee of Employment. This Agreement is not an
employment policy or contract. It does not give the Executive the right to
remain an employee of the Company, nor does it interfere with the Company's
right to discharge the Executive. It also does not require the Executive to
remain an employee nor interfere with the Executive's right to terminate
employment at any time.
16.3 Applicable Law. The Agreement and all rights hereunder shall
be governed by and construed according to the laws of the State of California,
except to the extent preempted by the laws of the United States of America.
16.4 Reorganization. The Company shall not merge or consolidate
into or with another company, or reorganize, or sell substantially all of its
assets to another company, firm or person unless such succeeding or continuing
company, firm or person agrees to assume and discharge the obligations of the
Company.
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16.5 Notice. Any notice, consent or demand required or permitted to
be given under the provisions of this Split Dollar Agreement by one party to
another shall be in writing, shall be signed by the party giving or making the
same, and may be given either by delivering the same to such other party
personally, or by mailing the same, by United States certified mail, postage
prepaid, to such party, addressed to his or her last known address as shown on
the records of the Company. The date of such mailing shall be deemed the date of
such mailed notice, consent or demand.
16.6 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Executive as to the subject matter hereof.
No rights are granted to the Executive by virtue of this Agreement other than
those specifically set forth herein.
16.7 Administration. The Company shall have powers which are
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 this Agreement;
(c) Maintaining a record of benefit payments;
and
(d) Establishing rules and prescribing any forms
necessary or desirable to administer this Agreement.
16.8 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 employment of advisors and the delegation of ministerial
duties to qualified individuals.
IN WITNESS WHEREOF, the Executive and the Company consent to this
Agreement on the date above written.
EXECUTIVE: COMPANY:
By: /s/ XXXXXX HAND, M.D.
----------------------------- -------------------------------------
Xxxxxx Hand, M.D.
Title: Chairman of the Board
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