Director Elective Income Deferral Agreement
Director
Elective Income Deferral Agreement
This Director
Elective Income Deferral Agreement
(this
“Agreement”) is entered into as of this 15th day of December, 2006, by and among
Capital Corp of the West, a California bank holding company (the “Company”),
County Bank, a California banking corporation (the “Bank”), and Xxxx Xxxxxxx, a
non-employee director of the Company (the “Director”).
Recitals
Whereas,
to
encourage the Director to remain a member of the Company’s board of directors,
the Company is providing a deferred compensation opportunity to the Director,
with benefits payable from the Company’s general assets;
Whereas,
the
Director and the Bank, a wholly owned subsidiary of Company, are parties to
a
County Bank Director Elective Income Deferral Agreement dated December 21,
2004
(“Old Agreement”) providing for elective deferral of the Director’s
compensation; and
Whereas,
the
Director, the Bank, and the Company intend that the Old Agreement shall be
superseded and replaced in its entirety and merged into this Agreement, but
that
amounts electively deferred under the Old Agreement, plus accrued interest
through December 31, 2006, shall represent the Deferral Account (as defined
below) as of December 31, 2006.
Now,
Therefore,
in
consideration of these premises and other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the Director, the
Company, and the Bank, hereby agree as follows.
Article
1
Definitions
Whenever
used in this Agreement, the following words and phrases shall have the meanings
specified.
1.1 “Beneficiary”
means
each designated person, or the estate of the deceased Director, entitled to
benefits, if any, at the Director’s death, determined according to Article
5.
1.2 “Beneficiary
Designation Form”
means
the form attached hereto as Exhibit 1 and established from time to time by
the
Plan Administrator (as defined in Article I, 1.10 below) that the Director
completes, signs, and returns to the Plan Administrator to designate one or
more
Beneficiaries.
1.3 “Change
in Control”
shall
mean a change in control of the Capital Corp of the West as defined in section
409A of the Code and regulations promulgated thereunder.
1.4 “Code”
means
the Internal Revenue Code of 1986, as amended.
1.5 “Compensation”
means
the total cash compensation payable to the Director during a Plan Year for
his
or her service as a director of the Company.
1.6 “Deferral
Account”
means
the Company’s accounting of the Director’s accumulated Deferrals, plus accrued
interest.
1.7 “Deferrals”
means
the amount of the Director’s Compensation that the Director elects to defer
according to this Agreement.
1.8 “Effective
Date”
means
the date this Agreement is entered into.
1.9 “Election
Form”
means
the form attached hereto as Exhibit 2.
1.10 “Plan
Administrator”
means
the board of directors the Company or such committee or the Chief Financial
Officer of the Company or such persons as the board of the Company shall
appoint, excluding the Director in either case.
1.11 “Plan
Year”
means
the calendar year.
1.12 “Separation
from Service”
means
the Director’s service as a director, executive, or independent contractor to
the Company and any member of a controlled group, as defined in section 414
of
the Code, terminates for any reason, other than because of a leave of absence
approved by the Company and other than because of the Director’s death. For
purposes of this Agreement, if there is a dispute about the Director’s status or
the date of the Director’s Separation from Service, the Plan Administrator shall
have the sole and absolute right to determine the date of Director’s Separation
of Service in conformance with section 409A of the Code and regulations
promulgated thereunder.
1.13 “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 after the expiration of his
current term, or 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;
(b) commission
of a felony or commission of a misdemeanor involving moral
turpitude;
(c) fraud,
disloyalty or willful violation of any law or significant Company policy;
or
(d) removal
from service or permanent prohibition from participation in 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)].
1.14 “Unforeseeable
Emergency”
means
a
severe financial hardship to the Director resulting from illness or accident
of
the Director, the Director’s spouse, or a dependent of the Director, loss of the
Director’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the Director’s
control, as determined by the Plan Administrator in conformance with section
409A of the Code and regulations promulgated thereunder.
Article
2
Election
to Defer Compensation
2.1 Election
to Defer Compensation.
(a)
Amount
and Duration of Deferrals.
The
Director shall make an annual deferral election under this Agreement by timely
filing with the Company a completed and signed Election Form. The Director
acknowledges that an Election Form needs to be filed with the Company for each
year that deferrals are to be made on behalf of Director, and that such
completed and signed Election Form must be filed with the Company prior to
the
beginning of the calendar year in which such deferrals are elected. If the
Director fails to file an Election Form for deferrals for the following year
in
a timely manner, then no deferrals will be made on behalf of the Director for
that following year. However, for the Director’s initial deferral election, the
Director must file a properly signed Election Form with the Company within
30
days after the Effective Date of this Agreement to elect deferrals for that
Plan
Year. The Election Form shall state the percentage or dollar amount of
Compensation to be deferred. The Election Form shall also state the period
for
which the Director desires to defer Compensation. If the Director fails to
state
the amount or percentage of Compensation to be deferred, the Director will
be
deemed to have elected to defer no Compensation for the applicable Plan Year.
(b) Changes
in the Amount or Duration of Deferrals.
With
the Company’s approval, the Director may change the amount of Compensation to be
deferred and the duration of deferrals by filing a new Election Form with the
Company before the beginning of the Plan Year for which the Compensation is
to
be deferred. The changed deferral election shall not be effective until the
Plan
Year after the year in which the new Election Form is received and approved
by
the Company, but a Director may immediately reduce the amount of Compensation
deferred if an Unforeseeable Emergency occurs.
2.2 Election
of Form of Payment.
The
Director shall also specify on the Election Form whether payment of the Deferral
Account shall be a single lump sum or installments. If installment payments
are
elected, the Director shall specify installments of 3, 5, 10, or 15 years and
whether installments shall be paid monthly, quarterly, semi-annually, or
annually. However, in no case may installments extend beyond 180 months after
the date payments commence. All installments will be paid as an end-of-period
payment rather than beginning-of-period payments. Failure to specify on the
Election Form a form of payment shall constitute an election for a single
lump-sum payment. If installment payments are elected but the Director fails
to
specify the duration of installment payments, the Director shall be deemed
to
have elected installments over three years. If installment payments are elected
but the Director fails to specify the frequency of installment payments, the
Director shall be deemed to have elected monthly installments.
2.3 Election
of Payment Date.
Finally, the Director shall also designate a specific date on which payment
of
benefits under Article 3 shall be made or shall commence. If a Director elects
a
payment date that is earlier than the date when Compensation deferrals cease,
the Director’s deferrals shall cease in the month immediately preceding the
payment date elected under this section 2.3. Failure to specify on the Election
Form a date when payment of benefits shall be made or shall commence shall
constitute an election for payment of benefits to be made or to commence on
the
last day of the month immediately after the month in which the Director’s
Separation from Service occurs. If Separation from Service occurs before the
date specified by the Director for distribution of benefits, payment of benefits
shall be made or shall commence on the last day of the month immediately after
the month in which Separation from Service occurs.
2.4 Change
in Election of Time or Form of Payment.
With
the Company’s approval, the Director may change the form of payment under
section 2.2, change the duration or frequency of installment payments under
section 2.2, or delay the date of payment under section 2.3 by filing a new
Election Form with the Company.
An
election to change
(i)
the
form of payment under section 2.2,
(ii)
the
duration or frequency of installment payments under section 2.2, or
(iii)
the
date of payment under section 2.3 to a later date
shall
not
take effect until at least 12 months elapse after the date the new Election
Form
is received by the Company, and furthermore such change shall result in the
installment benefit payments or the lump-sum benefit payment being deferred
for
at least five years beyond the date when the benefit payment or payments would
have been made to the Director had the Director not changed the election in
reliance on this section 2.4. A Director may not elect to accelerate the date
of
payment elected under section 2.3.
A
Director may not change
(i)
the
form of payment under section 2.2,
(ii)
the
duration or frequency of installment payments under section 2.2, or
(iii)
the
date of payment to a later date under section 2.3
if
12 or
fewer months remain before the payment date elected by the Director under
section 2.3.
Article
3
Benefits
During Lifetime
3.1 Ordinary
Benefit.
Unless
distributions occur (x)
under
section 3.2 after a Change in Control or (y)
under
section 3.4 because of Termination for Cause, at the time and in the form
elected by the Director on the Election Form, the Company shall pay to the
Director under this section 3.1 the Deferral Account balance existing at the
end
of the month immediately preceding the payment date elected under section 2.3.
The time of payment shall be the earlier of the following dates unless section
3.7 is applicable:
(a) Specified
Date:
a
specified date as indicated in the Director’s last Election Form that complies
with the provisions of this Agreement on or after the date Deferrals cease,
or
(b) Separation
from Service:
the
last day of the month immediately after the month in which Separation from
Service occurs.
If
the
Director elects installment payments, the installment period shall not exceed
180 months and any balance remaining in the Deferral Account shall be paid
to
the Director with the final installment for the installment period
elected.
3.2 Change
in Control.
If a
Change in Control occurs, the Director’s Deferral Account balance shall be paid
to the Director in a single lump sum within five days after the Change in
Control. Substantial damages would be suffered by the Director if the Company
fails to perform according to this Agreement. If a Change in Control occurs
but
the Company thereafter fails to pay the Director’s Deferral Account balance to
the Director within 30 days after the Change in Control, the benefit payable
under this section 3.2 shall be increased by 50%. However, the benefit shall
not
be increased if nonpayment is the result of prohibition of such payment by
law,
regulation, or order of a Company regulatory agency. This Agreement shall
terminate automatically when payment of the Deferral Account to the Director
occurs under this section 3.2.
3.3 Hardship
Distribution.
If the
Director suffers an Unforeseeable Emergency and petitions for a hardship
distribution, the Company shall distribute to the Director all or a portion
of
the Deferral Account balance as necessary solely to satisfy the emergency (plus
additional amounts necessary to pay taxes anticipated as a result of the
emergency), but only to the extent the emergency is not relieved through
reimbursement or compensated for by insurance or liquidation of the Director’s
assets.
3.4 Payment
after Termination for Cause.
If
Separation from Service is the result of Termination for Cause, instead of
any
other benefit under this Agreement the Company shall pay to the Director in
a
single lump sum an amount equal to the Deferral Account balance on the date
of
Separation from Service, with payment occurring within 120 days after Separation
from Service without interest unless section 3.7 is applicable, in which case
payment shall be made in accordance with section 3.7 also without
interest.
3.5 No
Distribution Sooner Than Is Allowed Under Section 409A.
A
Director’s Deferral Account shall be distributed as provided in this Article 3.
Despite anything in this Agreement or in an Election Form to the contrary,
however, no portion of the Director’s Deferral Account shall be distributed
sooner than is allowed under section 409A of the Code.
3.6 Contradiction
Between the Agreement and the Election Form.
If
there is a contradiction between this Agreement and the Election Form concerning
the time or form of payment, the time and form of payment shall be determined
by
this Agreement.
3.7 Six
Month Deferral of Payments for Key Employees.
In the
event (i) the Director is also a Key Employee as defined in section 409A of
the
Code, and (ii) any stock of Employer is publicly traded at the time of
Director’s Separation of Service, the benefit payable under this subsection
shall commence on the first day of the seventh (7th) month following Director’s
Separation of Service, and the first payment after the end of the period during
which payments or benefits are delayed under this provision, the entire amount
of the delayed payments shall be paid to the Employee in a single lump sum
along
with the normal installment payment for the seventh month.
Article
4
Deferral
Account
4.1 Establishing
and Crediting.
The
Company shall establish a Deferral Account on its books for the Director and
shall credit to the Deferral Account -
(a) Previous
Deferrals:
the
balance of the Director’s deferrals and accrued interest,
(b) Future
Deferrals:
as of
the time the Compensation would have otherwise been paid to the Director and
until the end of the month preceding the month in which payment shall be made
or
installment payments shall commence, or for such shorter period as the Director
may elect, the portion of the Compensation earned by the Director after the
Effective Date of this Agreement but deferred by the Director,
(c) Interest:
until
the Deferral Account is paid in full to the Director, interest shall be credited
quarterly on the Deferral Account balance at an interest rate equal to 120%
of
the applicable federal long term rate as published by the Internal Revenue
Service for the first month of each calendar quarter.
4.2 Statement
of Account.
Within
120 days after the end of each Plan Year, the Company shall provide to the
Director a statement of the Director’s Deferral Account balance at the end of
the Plan Year.
4.3 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 trust fund. The Director is a general
unsecured creditor of the Company for the payment of benefits. The benefits
represent the mere promise by the Company to pay benefits. The Director’s rights
are not subject to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by the Director’s
creditors.
4.4 Vesting.
A
Director’s interest in the value of his or her Deferral Account shall at all
times be 100% vested. However, a Director’s right to be paid by the Company
remains subject to the claims of the Company’s general creditors.
Article
5
Death
Benefit
5.1 Death
Benefit Payable to Beneficiary.
Within
60 days after the Director’s death, the Company shall pay to the Director’s
Beneficiary in a single lump sum the Director’s Deferral Account as of the time
of death, whether the Director dies while in active service to the Company
or
after Separation from Service. The Company shall have no further obligations
under this Agreement after payment of the Deferral Account balance to the
Beneficiary.
5.2 Beneficiary
Designations.
The
Director shall have the right to designate at any time a Beneficiary to receive
any benefits payable under this Agreement upon the death of the Director. The
Beneficiary designated under this Agreement may be the same as or different
from
the beneficiary designation under any other benefit plan of the Company in
which
the Director participates.
5.3 Beneficiary
Designation: Change.
The
Director shall designate a Beneficiary by completing and signing the Beneficiary
Designation Form and Spousal Consent, as necessary and delivering it to the
Plan
Administrator or its designated agent. 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. The Director shall have the right to change a
Beneficiary by completing, signing, and otherwise complying with the terms
of
the Beneficiary Designation Form, Spousal Consent, as necessary and the Plan
Administrator’s rules and procedures, as in effect from time to time. Upon the
acceptance by the Plan Administrator of a new Beneficiary Designation Form
and
Spousal Consent, as necessary, all Beneficiary designations previously filed
shall be cancelled. The Plan Administrator shall be entitled to rely on the
last
Beneficiary Designation Form filed by the Director and accepted by the Plan
Administrator before the Director’s death.
5.4 Acknowledgment.
No
designation or change in designation of a Beneficiary shall be effective until
received, accepted, and acknowledged in writing by the Plan Administrator or
its
designated agent.
5.5 No
Beneficiary Designation.
If the
Director dies without a valid beneficiary designation, or if all designated
Beneficiaries predecease the Director the benefits shall be made to the personal
representative of the Director’s estate.
5.6 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 Company
may pay such benefit to the guardian, legal representative, or person having
the
care or custody of the minor, incapacitated person, or incapable person. The
Company may require proof of incapacity, minority, or guardianship as it may
deem appropriate before distribution of the benefit. Distribution of the total
benefit due the Director shall completely discharge the Company from all
liability for the benefit.
Article
6
Claims
and Review Procedures
6.1 Claims
Procedure.
Within
90 days after receiving a written application for benefits under this Agreement
the Company shall notify in writing the person or entity making a claim for
benefits (the “Claimant”) of his or her eligibility or ineligibility for
benefits. If the Company determines that the Claimant is not eligible for
benefits or full benefits, the notice shall state (a) the specific reasons
for
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 concerning 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 the Company may extend the time
for
up to an additional 90 days.
6.2 Review
Procedure.
If the
Claimant is determined by the Company to be ineligible 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. The petition shall state the
specific reasons 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 give the Claimant (and counsel, if any) the
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 the Company’s
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
identifying the specific provisions of the Agreement on which the decision
is
based. If because of the need for a hearing the 60-day period is not sufficient,
the decision may be deferred for up to another 60 days at the election of the
Company, but notice of this deferral shall be given to the
Claimant.
Article
7
Plan
Administration
7.1 Plan
Administrator Duties.
This
Agreement shall be administered by a Plan Administrator. The Plan Administrator
shall also have the discretion and authority to (x)
make,
amend, interpret, and enforce all appropriate rules and regulations for the
administration of this Agreement and (y)
decide
or resolve any and all questions, including interpretations of this Agreement,
as may arise in connection with the Agreement.
7.2 Agents.
In the
administration of this Agreement, the Plan Administrator may employ agents
and
delegate to them such administrative duties as it sees fit (including acting
through a duly appointed representative) and may from time to time consult
with
counsel, who may be counsel to the Company.
7.3 Binding
Effect of Decisions.
The
decision or action of the Plan Administrator with respect to any question
arising out of or in connection with the administration, interpretation, and
application of the Agreement and the rules and regulations promulgated hereunder
shall be final and conclusive and binding upon all persons having any interest
in the Agreement. No Director or Beneficiary shall be deemed to have any right,
vested or nonvested, regarding the continuing effect of any decision or action
of the Plan Administrator.
7.4 Indemnity
of Plan Administrator.
The
Company shall indemnify and hold harmless the members of the Plan Administrator
against any and all claims, losses, damages, expenses, or liabilities arising
from any action or failure to act with respect to this Agreement, except in
the
case of willful misconduct by the Plan Administrator or any of its
members.
7.5 Company
Information.
To
enable the Plan Administrator to perform its functions, the Company shall supply
full and timely information to the Plan Administrator on all matters relating
to
the date and circumstances of the retirement, Disability, death, or Separation
from Service of the Director, and such other pertinent information as the Plan
Administrator may reasonably require.
Article
8
Miscellaneous
8.1 Amendment.
The
Company’s board of directors may amend the provisions of this Agreement
governing the manner of making deferral elections, the terms on which
distributions are made, and the form and timing of distributions. However,
except for mere clarifying amendments necessary to avoid an inappropriate
windfall, no amendment shall reduce the amount credited to the Director’s
Deferral Account as of the date the amendment is adopted. Any amendment shall
be
in writing, in conformance with section 409A of the Code and adopted by the
board of directors. The Director shall be bound by the amendment. The Company
specifically reserves the right to amend the Agreement as necessary to comply
with section 409A of the Code.
8.2 Termination.
The
Company reserves the right to terminate this Agreement at any time if, because
of legislative, judicial or regulatory action, continuation of the Agreement
would (x)
cause
benefits to be taxable to the Director before actual receipt or (y)
in the
Company’s judgment, result in significant financial penalties or other
significantly detrimental consequences for the Company (other than the financial
impact of paying benefits). This Agreement shall not be terminated unless the
Deferral Account balance is first paid to the Director or Beneficiary. Any
termination of this Agreement shall be subject to any restrictions on
termination that are applicable to ensure continued compliance under section
409A of the Code.
8.3 Binding
Effect.
This
Agreement shall bind the Director and the Company and their beneficiaries,
successors and assigns, survivors, executors, administrators, and
transferees.
8.4 No
Guarantee of Service.
This
Agreement is not a contract for services. This Agreement does not give the
Director the right to remain a director of the Company nor does this Agreement
interfere with the shareholders’ right to replace the Director. This Agreement
also does not require the Director to remain a director or interfere with the
Director’s right to terminate services at any time.
8.5 Non-Transferability.
Benefits under this Agreement may not be sold, transferred, assigned, pledged,
attached, or encumbered.
8.6 Taxes.
The
Company shall withhold any taxes that are required to be withheld from the
benefits provided under this Agreement. The Company shall report amounts
deferred under the terms of the Agreement to the Internal Revenue Service in
accordance with the requirements of section 409A of the Code. 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 receipt of 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.
8.7 Applicable
Law.
The
Agreement and all rights hereunder shall be governed by the laws of the State
of
California except to the extent preempted by the laws of the United States
of
America.
8.8 Unfunded
Arrangement.
The
Director and beneficiary are general unsecured creditors of the Company for
the
payment of benefits under this Agreement. This Agreement constitutes a mere
promise by the Company to pay 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.
8.9 Rabbi
Trust.
In its
sole discretion, the Company may establish a grantor trust, commonly known
as a
“rabbi trust,” with an independent, third-party trustee as a vehicle for
accumulating the assets needed to pay the promised benefit. In its sole and
absolute discretion the Company may from time to time contribute to such rabbi
trust, if established, such amounts as the Company in its sole and absolute
discretion shall determine.
8.10 Entire
Agreement.
This
Agreement constitutes the entire agreement between the Company and the Director
concerning the subject matter. No rights are granted to the Director other
than
those specifically set forth. This Agreement amends and restates in its entirety
the Original Agreement between the Company and the Director, as the same may
have been amended or restated. The Director’s elections in effect under the
Original Agreement shall remain in effect until changed by a new Election Form
submitted under this Agreement.
8.11 Severability.
If any
provision of this Agreement, as applied to either party or to any circumstance,
is judged by a court to be void or unenforceable in whole or in part, the
provision shall not affect any other provision of this Agreement, the
application of such provision in any other circumstances, or the validity or
enforceability of this Agreement.
8.12 Waiver.
A
waiver by either party of any of the terms or conditions of this Agreement
in
any one instance shall not be considered a waiver of such terms or conditions
for the future, or of any subsequent breach thereof. All remedies, rights,
undertakings, obligations, and agreements contained in this Agreement shall
be
cumulative and none of them shall be in limitation of any other remedy, right,
undertaking, obligation, or agreement of either party.
8.13 Headings.
The
heading in this Agreement are for convenience only and shall not affect the
interpretation or construction of the Agreement or any of its
provisions.
8.14 Notice.
Any
notice or other communication to be given under this Agreement shall be in
writing and shall be deemed to have been duly given on the date of service
if
personally served, or if mailed, upon deposit in the United States mail, first
class postage prepaid, express or certified, return receipt requested, and
properly addressed to the parties as follows: if to Director at his last address
shown in the Company’s records; and if to Company to County Company, 000 Xxxx
Xxxx Xxxxxx, X.X. Xxx 000, Xxxxxx, Xxxxxxxxxx 00000, Attention: Chairman. Either
party may designate a new address by giving the other notice of the new address
as provided herein.
8.15 Compliance
with Section 409A of the Code.
At all
times during each Plan Year this Agreement shall be administered in accordance
with the requirements of section 409A of the Code. Any action that may be taken
and, to the extent possible, any action actually taken by the Plan Administrator
or the Company shall not be taken or shall be void and without effect if that
action is contrary to the requirements of section 409A of the Code. Any
provision in this Agreement that is determined to be contrary to the
requirements of section 409A of the Code shall be void and without effect.
In
addition, any provision that is required by section 409A of the Code to appear
in this Agreement that is not expressly set forth shall be deemed to be set
forth herein, and this Agreement shall be administered in all respects as if
such provision were expressly set forth herein. Despite any contrary provision
of this Agreement, if any payments under this Agreement will result in
additional tax or interest to the Director because of section 409A of the Code,
the Director will not be entitled to the payments until the earlier of
(x)
the
date of the Director’s death or (y)
any
earlier date that does not result in additional tax or interest to the Director
under section 409A of the Code. If any provision of this Agreement would subject
the Director to additional tax or interest under section 409A of the Code,
the
Company shall reform the provision. However, the Company shall maintain to
the
maximum extent practicable the original intent of the applicable provision
without subjecting the Director to additional tax or interest, and the Company
shall not be required to incur any additional compensation expense as a result
of the reformed provision.
In
Witness Whereof,
the
Director and a duly authorized Company officer have signed this Director
Elective Income Deferral Agreement as of the date first written
above.
Director Company
By:__/S/Xxxx
Fawcett__________________ By:____/S/Xxxxxx
X. Hawker______________
Xxxxx
Xxxxxx, Director Xxxxxx
X.
Xxxxxx
President & Chief Executive Officer
Bank
By:____/S/Xxxxxx
X. Hawker____________
Xxxxxx
X.
Xxxxxx
Chief
Executive Officer
Exhibit
1
Director
Elective Income Deferral Agreement
Beneficiary
Designation
I
designate the following as Beneficiary of benefits under the Director Elective
Income Deferral Agreement payable after my death.
Primary
(name, address, TIN):
Contingent
(name, address, TIN):
|
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 Company. I further understand that the designations
will be automatically revoked if the Beneficiary predeceases me, or if I have
named my spouse as beneficiary and our marriage is subsequently
dissolved.
Signature:
/S/Xxxx Fawcett_
Date: December 15, 2006
Received
by the Company this ___ day of ______ , 200___.
By:
__________________
Title:
___________________
Exhibit
2
Director
Elective Income Deferral Agreement
Form
of Deferral Election Form for Plan Year 2007
I
elect
to defer Compensation under the Director Elective Income Deferral Agreement
with
the Company, as follows:
|
Amount
of Deferral
|
Duration
|
|
[initial
and complete one]
__JF_I
elect to defer 100%
of my Compensation monthly
_____I
elect to defer $
of
my Compensation monthly
_____I
elect not to defer any of my Compensation
|
[initial]
I
elect to defer for the:
___2007__
calendar year.
|
Form
and Timing of Benefit Distribution
Any
changes to the time of payment from a previous election must conform to Section
2.4 of the Director Elective Income Deferral Agreement.
[initial
one]
JF
[single
lump sum]
I elect
to receive benefits under the Director Elective Income Deferral Agreement in
a
single lump sum on the last day of the month of January,
2010
(or
the
final day of the month immediately after the month in which Separation from
Service occurs if Separation from Service occurs before the specified date).
If
I do not specify a date when the lump-sum payment shall be made, the lump-sum
payment shall be made on the last day of the month immediately after the month
in which Separation from Service occurs.
[installments]
I elect
to receive benefits under the Amended Director Elective Income Deferral
Agreement in installments beginning on the last day of the month of ,
20
(or the
final day of the month immediately after the month in which Separation from
Service occurs if Separation from Service occurs before the specified date).
If
I do not specify a date when installments shall commence, installments shall
commence on the last day of the month immediately after the month in which
Separation from Service occurs. I elect to receive installments over a period
of
[initial
your choices]:
|
|
3
years, paid
monthly,
quarterly,
semi-annually,
or
annually
|
|
|
5
years, paid monthly,
quarterly, semi-annually,
or
annually
|
10
years, paid
monthly,
quarterly, semi-annually,
or
annually
___ 15
years, paid
monthly,
quarterly, semi-annually,
or
annually
I
understand that if I make any subsequent election to change the time or form
of
benefit payment such change is subject to compliance with Section 2.4 of the
Director Elective Income Deferral Agreement. I also acknowledge that the Company
has the right to amend the Director Elective Income Deferral Agreement and
the
treatment of Deferrals thereunder if the Company deems it necessary or
appropriate to comply with section 409A of the Code.
With
the Company’s approval only,
I
understand that I may change the amount and duration of my Deferrals by filing
a
new Election Form with the Company; provided,
however,
that
any new election will not be effective until the calendar year after the year
in
which the new election form is received by the Company.
Signature:
/S/Xxxx Fawcett_
Date: December 15, 2006
Received
by the Company this ___ day of ______ , 200___.
By:
__________________
Title:
___________________
