EXHIBIT 99.1
AMENDED AND RESTATED
EXECUTIVE SALARY CONTINUATION AGREEMENT
This Amended and Restated Executive Salary Continuation Agreement dated
September___, 1997, is made by and between Regency Bank, a bank chartered under
the laws of the State of California (the "Employer"), and Xxxxxx X. Xxxxxx, an
individual residing in the State of California (hereinafter referred to as the
"Executive"), and amends and restates in its entirety that certain Executive
Salary Continuation Agreement between the Employer and the Executive dated
August 12, 1993 (the "Agreement").
R E C I T A L S
WHEREAS, the Executive is an employee of the Employer and is serving
as its President and Chief Executive Officer;
WHEREAS, the Executive's experience and knowledge of the affairs of
the Employer and the banking industry are extensive and valuable;
WHEREAS, it is deemed to be in the best interests of the Employer to
provide the Executive with certain salary continuation benefits, on the terms
and conditions set forth herein, in order to reasonably induce the Executive to
remain in the Employer's employment;
WHEREAS, the Executive and the Employer wish to specify in writing the
terms and conditions upon which this additional compensatory incentive will be
provided to the Executive, or to the Executive's spouse or the Executive's
designated beneficiaries, as the case may be;
WHEREAS, the Executive and the Employer desire to restate the
Agreement to include in one document, the Amendment dated September 21, 1995,
which revised the definition of "Change in Control", and further amend the
Agreement to (i) delete references to "Schedule B Annuity" in various provisions
of the Agreement and substitute the term "Annual Benefit" in lieu thereof, (ii)
delete Schedule B attached to the Agreement in its entirety, and (iii) re-
designate Schedule C as Schedule B and adjust all references thereto throughout
the Agreement; and
WHEREAS, it is the intent of the Employer and the Executive that the
Agreement shall remain in full force and effect from and after the date of the
Agreement with such amendments as are contained herein, and that the calculation
of the Applicable Percentage set forth in Schedule A shall continue to be based
upon such date of the Agreement.
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NOW, THEREFORE, in consideration of the services to be performed in the future,
as well as the mutual promises and covenants contained herein, the Executive and
the Employer agree as follows:
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A G R E E M E N T
1. TERMS AND DEFINITIONS.
1.1. ADMINISTRATOR. The Employer shall be the "Administrator" and,
solely for the purposes of ERISA, the "fiduciary" of this Agreement where a
fiduciary is required by ERISA.
1.2. ANNUAL BENEFIT. The term "Annual Benefit" shall mean an annual
sum of One Hundred Thousand Dollars ($100,000.00) multiplied by the Applicable
Percentage (defined below) and then reduced to the extent: (i) required under
the other provisions of this Agreement, including, but not limited to,
Paragraphs 5, 7 and 8 hereof; (ii) required by reason of the lawful order of any
regulatory agency or body having jurisdiction over the Employer; and
(iii) required in order for the Employer to properly comply with any and all
applicable state and federal laws, including, but not limited to, income,
employment and disability income tax laws (e.g., FICA, FUTA, SDI).
1.3. APPLICABLE PERCENTAGE. The term "Applicable Percentage" shall
mean that percentage listed on Schedule "A" attached hereto which is adjacent to
the number of complete years (with a "year" being the performance of personal
services for or on behalf of the Employer for a period of 365 days) which have
elapsed starting from the Effective Date of this Agreement and ending on the
date payments are to first begin under the terms of this Agreement.
Notwithstanding the foregoing or the percentages set forth on Schedule "A," but
subject to all other terms and conditions set forth herein, the "Applicable
Percentage" shall be: (i) one hundred percent (100%) upon the occurrence of a
"change of control" as defined in subparagraph 1.5 below; and (ii)
notwithstanding subclause (i) of this Paragraph, zero percent (0%) in the event
the Executive takes any action which prevents the Employer from collecting the
proceeds of any life insurance policy which the Employer may happen to own at
the time of the Executive's death and of which the Employer is the designated
beneficiary.
1.4. BENEFICIARY. The term "beneficiary" or "designated beneficiary"
shall mean the person or persons whom the Executive shall designate in a valid
Beneficiary Designation, a copy of which is attached hereto as Exhibit "B," to
receive the benefits provided hereunder. A Beneficiary Designation shall be
valid only if it is in the form attached hereto and made a part hereof and is
received by the Administrator prior to the Executive's death.
1.5. CHANGE IN CONTROL. The term "Change in Control" shall mean the
occurrence of any of the following events with respect to Employer (with the
term "Employer" being defined, when determining whether a "Change in Control"
has occurred, to include Regency Bank's current holding company, Regency
Bancorp, a California corporation, such that a "Change in Control" of Regency
Bancorp will be deemed to constitute a "Change in Control" of the Employer,
Regency Bank): (i) a change in control of a nature that would be required to be
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reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
in response to any other form or report to the regulatory agencies or
governmental authorities having jurisdiction over the Employer or any stock
exchange on which the Employer's shares are listed which requires the reporting
of a change in control; (ii) any merger, consolidation or reorganization of the
Employer in which the Employer does not survive; (iii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition (in one transaction or
a series of transactions) of any assets of the Employer having an aggregate fair
market value of fifty percent (50%) of the total value of the assets of the
Employer, reflected in the most recent balance sheet of the Employer; (iv) a
transaction whereby any "person" (as such term is used in the Exchange Act or
any individual, corporation, partnership, trust or any other entity) becomes the
beneficial owner, directly or indirectly, of securities of the Employer
representing twenty-five percent (25%) or more of the combined voting power of
the Employer's then outstanding securities; or (v) a situation where, in any
one-year period, individuals who at the beginning of such period constitute the
Board of Directors of the Employer cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for election by the
Employer's shareholders, of each new director is approved by a vote of at least
three-quarters (3/4) of the directors then still in office who were directors at
the beginning of the period. Notwithstanding the foregoing or anything else
contained herein to the contrary, there shall not be a "Change in Control" for
purposes of this Agreement if the event which would otherwise come within the
meaning of the term "Change in Control" involves the Employer's Employee Stock
Ownership Plan (the "ESOP") and the ESOP is the party which acquires "control"
or is the principal participant in the transaction constituting a "Change in
Control," as described above.
1.6. THE CODE. The "Code" shall mean the Internal Revenue Code of
1986, as amended (the "Code").
1.7. DISABILITY/DISABLED. The term "Disability" or "Disabled" shall
have the same meaning given such term in the principal disability insurance
policy covering the Executive, which is incorporated herein by reference to the
limited extent thereof. In the event the Executive is not covered by a
disability policy containing a definition of "Disability" or "Disabled," these
terms shall mean an illness or incapacity which, having continued for a period
of one hundred and eighty (180) consecutive days, prevents the Executive from
adequately performing the Executive's regular employment duties. The
determination of whether the Executive is Disabled shall be made by an
independent physician selected by mutual agreement of the parties.
1.8. EARLY RETIREMENT DATE. The term "Early Retirement Date" shall
mean the Retirement (as defined below) of the Executive on a date which occurs
prior to the Executive attaining sixty (60) years of age but after the Executive
has attained fifty-five (55) years of age and has been employed by the Employer
for an aggregate of ten (10) years.
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1.9. EFFECTIVE DATE. The term "Effective Date" shall mean the date
upon which this Agreement was entered into by the parties, as first written
above.
1.10. ERISA. The term "ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as amended.
1.11. PLAN YEAR. The term "Plan Year" shall mean the Employer's
fiscal year.
1.12. RETIREMENT. The term "Retirement" or "Retires" shall refer
to the date which the Executive acknowledges in writing to Employer to be the
last day he will provide any significant personal services, whether as an
employee or independent consultant or contractor, to Employer or to, for, or on
behalf of, any other business entity conducting, performing or making available
to any person or entity banking or other financial services of any kind. For
purposes of this Agreement, the phrase "significant personal services" shall
mean more than ten (10) hours of personal services rendered to one or more
individuals or entities in any thirty (30) day period.
1.13. SURVIVING SPOUSE. The term "Surviving Spouse" shall mean
the person, if any, who shall be legally married to the Executive on the date of
the Executive's death.
1.14. TERMINATION FOR CAUSE. The term "Termination for Cause"
shall mean termination of the employment of the Executive by reason of any of
the following:
(a) A termination "for cause" as this term may be defined in any
written employment agreement entered into by and between the Employer and the
Executive;
(b) The willful breach of duty by the Executive in the course of
his employment;
(c) The habitual neglect by the Executive of his employment
responsibilities and duties;
(d) The Executive's deliberate violation of any state or federal
banking or securities laws, or of the Bylaws, rules, policies or resolutions of
the Employer, or of the rules or regulations of: (i) the Office of the
California Superintendent of Banks; (ii) the Federal Deposit Insurance
Corporation; or (iii) any other regulatory agency or governmental authority
having jurisdiction over the Employer;
(e) The determination by a state or federal banking agency or
other governmental authority having jurisdiction over the Employer that the
Executive is not suitable to act in the capacity for which he is employed by the
Employer;
(f) The Executive is convicted of any felony or a crime
involving
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moral turpitude or a fraudulent or dishonest act; or
(g) The Executive discloses without authority any secret or
confidential information not otherwise publicly available concerning the
Employer or takes any action which the Employer's Board of Directors determines,
in its sole discretion and subject to good faith, fair dealing and
reasonableness, constitutes unfair competition with or induces any customer to
breach any contract with the Employer.
2. SCOPE, PURPOSE AND EFFECT.
2.1. CONTRACT OF EMPLOYMENT. Although this Agreement is intended to
provide the Executive with an additional incentive to remain in the employ of
the Employer, this Agreement shall not be deemed to constitute a contract of
employment between the Executive and the Employer nor shall any provision of
this Agreement restrict or expand the right of the Employer to terminate the
Executive's employment. This Agreement shall have no impact or effect upon any
separate written Employment Agreement which the Executive may have with the
Employer, it being the parties' intention and agreement that unless this
Agreement is specifically referenced in said Employment Agreement (or any
modification thereto), this Agreement (and the Employer's obligations hereunder)
shall stand separate and apart and shall have no effect upon, nor be affected
by, the terms and provisions of said Employment Agreement.
2.2. FRINGE BENEFIT. The benefits provided by this Agreement are
granted by the Employer as a fringe benefit to the Executive and are not a part
of any salary reduction plan or any arrangement deferring a bonus or a salary
increase. The Executive has no option to take any current payments or bonus in
lieu of the benefits provided by this Agreement.
3. PAYMENTS UPON OR AFTER RETIREMENT.
3.1. PAYMENTS UPON RETIREMENT. If the Executive shall remain in the
continuous employment of the Employer until attaining sixty (60) years of age,
the Executive shall be entitled to be paid the Annual Benefit, as defined above,
in equal monthly installments, for a period of fifteen (15) years (One Hundred
Eighty (180) months), with each installment to be paid on the first day of each
month, beginning with the month following the month in which the Executive
Retires or upon such later date as may be mutually agreed upon by the Executive
and the Employer in advance of said Retirement date. At the Employer's sole and
absolute discretion, the Employer may increase the Annual Benefit as and when
the Employer determines the same to be appropriate in order to reflect a
substantial change in the cost of living. Notwithstanding anything contained
herein to the contrary, the Employer shall have no obligation hereunder to make
any such cost-of-living adjustment.
3.2. PAYMENTS IN THE EVENT OF DEATH AFTER RETIREMENT. The Employer
agrees that if the Executive Retires, but shall die before receiving all of the
One Hundred Eighty (180)
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monthly payments to which he is entitled hereunder, the
Employer will continue to make such monthly payments to the Executive's
designated beneficiary for the remaining period. If a valid Beneficiary
Designation is not in effect, then the remaining amounts due to the Executive
under the term of this Agreement shall be paid to the Executive's Surviving
Spouse. If the Executive leaves no Surviving Spouse, the remaining amounts due
to the Executive under the terms of this Agreement shall be paid to the duly
qualified personal representative, executor or administrator of the Executive's
estate.
4. PAYMENTS IN THE EVENT DEATH OR DISABILITY OCCURS PRIOR TO RETIREMENT.
4.1. PAYMENTS IN THE EVENT OF DEATH PRIOR TO RETIREMENT. In the event
the Executive should die while actively employed by the Employer at any time
after the Effective Date of this Agreement, but prior to attaining sixty (60)
years of age or if the Executive chooses to work after attaining sixty (60)
years of age, but dies before Retirement, the Employer agrees to pay the Annual
Benefit to the Executive's designated beneficiary in equal monthly installments,
for a period of fifteen (15) years (One Hundred Eighty (180) months). If a
valid Beneficiary Designation is not in effect, then the remaining amounts due
to the Executive under the term of this Agreement shall be paid to the
Executive's Surviving Spouse. If the Executive leaves no Surviving Spouse, the
remaining amounts due to the Executive under the terms of this Agreement shall
be paid to the duly qualified personal representative, executor or administrator
of the Executive's estate. Each installment shall be paid on the first day of
each month, beginning with the month following the month in which the
Executive's death occurs.
4.2. PAYMENTS IN THE EVENT OF DISABILITY PRIOR TO RETIREMENT. In the
event the Executive becomes Disabled while actively employed by the Employer at
any time after the date of this Agreement but prior to Retirement, the Executive
shall: (i) solely for purpose of determining the duration of the Executive's
employment as may be required by this Agreement, continue to be treated during
such period of Disability as being gainfully employed by the Employer; and
(ii) be entitled to be paid the Annual Benefit, as defined above, in equal
monthly installments, for a period of fifteen (15) years (One Hundred Eighty
(180) months), with each installment to be paid on the first day of each month,
beginning with the month following the earlier of (1) the month in which the
Executive attains sixty (60) years of age; or (2) the date upon which the
Executive is no longer entitled to receive Disability benefits under the
Executive's principal Disability insurance policy and is, at such time, unable
to return to and thereafter fulfil the responsibilities associated with the
employment position held with the Employer prior to becoming Disabled by reason
of such Disability continuing. For purposes of this Paragraph, the Annual
Benefit amount shall be determined by reference to the earlier of the following
dates: (1) the first day of the month in which the Executive attains sixty (60)
years of age; or (2) the date upon which the Executive is no longer entitled to
receive Disability benefits under the Executive's principal Disability insurance
policy. Notwithstanding the foregoing, if the Executive chooses to elect either
the Retirement payout option set forth in Paragraph 3 hereof or the Early
Retirement payout option set forth in Paragraph 6 hereof, the Executive may
waive the
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payout provisions set forth in this subparagraph 4.2 and in lieu
thereof receive the Annual Benefit which the Executive would be entitled to
receive under the terms of Paragraphs 3 or 6, as the case may be, provided that
the Executive does, in fact, Retire from all employment responsibilities with
the Employer at the time of his executing this election.
5. PAYMENTS IN THE EVENT EMPLOYMENT IS TERMINATED PRIOR TO RETIREMENT. As
indicated in Paragraph 2 above, the Employer reserves the right to terminate the
Executive's employment, with or without cause but subject to any written
employment agreement which may then exist, at any time prior to the Executive's
Retirement. In the event that the employment of the Executive shall be
terminated, other than by reason of Disability, death or Retirement, prior to
the Executive's attaining sixty (60) years of age, then this Agreement shall
terminate upon the date of such termination of employment; provided, however,
that the Executive shall be entitled to the following benefits as may be
applicable depending upon the circumstances surrounding the Executive's
termination:
5.1. TERMINATION WITHOUT CAUSE. If the Executive's employment is
terminated by the Employer without cause, the Executive shall be entitled to be
paid the Annual Benefit, as defined above, in equal monthly installments, for a
period of fifteen (15) years (One Hundred Eighty (180) months), with each
installment to be paid on the first day of each month, beginning with the month
following the month in which Executive is terminated without cause or upon such
later date as may be mutually agreed upon by the Executive and the Employer in
advance of the effective date of the Executive's termination.
5.2. VOLUNTARY TERMINATION BY THE EXECUTIVE. It is acknowledged and
agreed by the Executive that the purpose of this Agreement is to assure the
Executive's continued employment with the Employer and that if the Executive
voluntarily terminates his employment with the Employer (other than by reason of
death, Disability or Retirement), then the Executive shall have willingly
forfeited any and all rights and benefits he may have under the terms of this
Agreement and that, furthermore, no amounts shall be due or paid to the
Executive by the Employer pursuant to the terms of this Agreement.
5.3. TERMINATION FOR CAUSE. The Executive agrees that if his
employment with the Employer is terminated "for cause," as defined in
subparagraph 1.14 of this Agreement, he shall forfeit any and all rights and
benefits he may have under the terms of this Agreement and shall have no right
to be paid any of the amounts which would otherwise be due or paid to the
Executive by the Employer pursuant to the terms of this Agreement.
5.4. TERMINATION BY THE EMPLOYER ON ACCOUNT OF OR AFTER A CHANGE IN
CONTROL. In the event: (i) the Executive's employment with the Employer is
terminated by the Employer in conjunction with, or by reason of, a "change in
control" (as defined in subparagraph 1.5 above); or (ii) by reason of the
Employer's actions any adverse and material change occurs in the scope of the
Executive's position, responsibilities, duties, salary, benefits, or location of
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employment after a "change in control" (as defined in subparagraph 1.5) occurs;
or (iii) the Employer causes an event to occur which reasonably constitutes or
results in a demotion, a significant diminution of responsibilities or
authority, or a constructive termination (by forcing a resignation or otherwise)
of the Executive's employment after a "change in control" (as defined in
subparagraph 1.5) occurs, then the Executive shall be entitled to be paid the
Annual Benefit, as defined above, in equal monthly installments, for a period of
fifteen (15) years (One Hundred Eighty (180) months), with installments to be
paid on the first day of each month, beginning with the month following the
month in which the Executive is terminated or the action referred to above
occurs.
6. PAYMENTS IN THE EVENT THE EXECUTIVE ELECTS EARLY RETIREMENT. The
Executive shall have the right to elect to receive the Annual Benefit prior to
attaining sixty (60) years of age if he chooses to Retire on a date which
constitutes an Early Retirement Date as defined in subparagraph 1.8 above. In
the event the Executive elects to Retire on a date which constitutes an Early
Retirement Date, the Executive shall be entitled to be paid the Annual Benefit,
as defined above, in equal monthly installments, for a period of fifteen (15)
years (One Hundred Eighty (180) months), with each installment to be paid on the
first day of each month, beginning with the month following the month in which
the Early Retirement Date occurs.
7. ADDITIONAL LIMITATIONS ON THE AMOUNT OF THE ANNUAL BENEFIT. The
Executive acknowledges and agrees that the parties have entered into this
Agreement based upon the certain financial and tax accounting assumptions.
Accordingly, with full knowledge of the potential consequences the Executive
agrees that, notwithstanding anything contained herein to the contrary: (i) the
amount of the Annual Benefit shall be limited to that amount of the Annual
Benefit (determined without regard to this Paragraph 7) which will be deductible
by the Employer under the Code in the year in which payment is to be made to the
Executive; (ii) the Annual Benefit amount shall be deemed to be the last payment
made to the Executive and the first for which an income tax deduction, if any,
has been disallowed; and (iii) any compensatory amounts for which a deduction is
denied to the Employer shall, at the Employer's election, serve to first reduce
the Employer's obligation to make the monthly Annual Benefit payments otherwise
due and payable to the Executive under the terms of this Agreement. The
Executive recognizes that, in this regard, limitations on deductibility may be
imposed under, but not limited to, Code Section 280G. Consistent with the
foregoing, and in the event that any payment or benefit received or to be
received by the Executive, whether payable pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Employer
(together with the Annual Benefit, the "Total Payments"), will not be deductible
(in whole or in part) as a result of Code Section 280G, the Annual Benefit shall
be reduced until no portion of the Total Payments is nondeductible as a result
of Section 280G of the Code (or the Annual Benefit is reduced to zero (0)). For
purposes of this limitation:
(a) No portion of the Total Payments, the receipt or enjoyment of
which the Executive shall have effectively waived in writing prior to the date
of payment of any future
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Annual Benefit payments, shall be taken into account;
(b) No portion of the Total Payments shall be taken into account,
which in the opinion of the tax counsel selected by the Employer and acceptable
to the Executive, does not constitute a "parachute payment" within the meaning
of Section 280G of the Code;
(c) Future Annual Benefit payments shall be reduced only to the
extent necessary so that the Total Payments (other than those referred to in
clauses (a) or (b) above in their entirety) constitute reasonable compensation
for services actually rendered within the meaning of Section 280G of the Code,
in the opinion of tax counsel referred to in clause (b) above; and
(d) The value of any non-cash benefit or any deferred payment or
benefit included in the Total Payments shall be determined by the Employer's
independent auditors in accordance with the principles of Section 280G of the
Code.
8. RIGHT TO DETERMINE FUNDING METHODS. The Employer reserves the right to
determine, in its sole and absolute discretion, whether, to what extent and by
what method, if any, to provide for the payment of the amounts which may be
payable to the Executive, the Executive's spouse or the Executive's
beneficiaries under the terms of this Agreement. In the event that the Employer
elects to fund this Agreement, in whole or in part, through the use of life
insurance or annuities, or both, the Employer shall determine the ownership and
beneficial interests of any such policy of life insurance or annuity. The
Employer further reserves the right, in its sole and absolute discretion, to
terminate any such policy, and any other device used to fund its obligations
under this Agreement, at any time, in whole or in part. Consistent with
Paragraph 10 below, neither the Executive, the Executive's spouse nor the
Executive's beneficiaries shall have any right, title or interest in or to any
funding source or amount utilized by the Employer pursuant to this Agreement,
and any such funding source or amount shall not constitute security for the
performance of the Employer's obligations pursuant to this Agreement. In
connection with the foregoing, the Executive agrees to execute such documents
and undergo such medical examinations or tests which the Employer may request
and which may be reasonably necessary to facilitate any funding for this
Agreement including, without limitation, the Employer's acquisition of any
policy of insurance or annuity. Furthermore, a refusal by the Executive to
consent to, participate in and undergo any such medical examinations or tests
shall result in the immediate termination of this Agreement and the immediate
forfeiture by the Executive, the Executive's spouse and the Executive's
beneficiaries of any and all rights to payment hereunder.
9. CLAIMS PROCEDURE. The Employer shall, but only to the extent necessary
to comply with ERISA, be designated as the named fiduciary under this Agreement
and shall have authority to control and manage the operation and administration
of this Agreement. Consistent therewith, the Employer shall make all
determinations as to the rights to benefits under this
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Agreement. Any decision by the Employer denying a claim by the Executive,
the Executive's spouse, or the Executive's beneficiary for benefits under
this Agreement shall be stated in writing and delivered or mailed, via
registered or certified mail, to the Executive, the Executive's spouse or the
Executive's beneficiary, as the case may be. Such decision shall set forth
the specific reasons for the denial of a claim. In addition, the Employer
shall provide the Executive, the Executive's spouse or the Executive's
beneficiary with a reasonable opportunity for a full and fair review of the
decision denying such claim.
10. STATUS AS AN UNSECURED GENERAL CREDITOR. Notwithstanding anything
contained herein to the contrary: (i) neither the Executive, the Executive's
spouse or the Executive's beneficiary shall have any legal or equitable rights,
interests or claims in or to any specific property or assets of the Employer;
(ii) none of the Employer's assets shall be held in or under any trust for the
benefit of the Executive, the Executive's spouse or the Executive's
beneficiaries or held in any way as security for the fulfillment of the
obligations of the Employer under this Agreement; (iii) all of the Employer's
assets shall be and remain the general unpledged and unrestricted assets of the
Employer; (iv) the Employer's obligation under this Agreement shall be that of
an unfunded and unsecured promise by the Employer to pay money in the future;
and (v) the Executive, the Executive's spouse and the Executive's beneficiaries
shall be unsecured general creditors with respect to any benefits which may be
payable under the terms of this Agreement.
11. MISCELLANEOUS.
11.1. OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL. The
Executive acknowledges that he has been afforded the opportunity to consult with
independent counsel of his choosing regarding both the benefits granted to him
under the terms of this Agreement and the terms and conditions which may affect
the Executive's right to these benefits. The Executive further acknowledges
that he has read, understands and consents to all of the terms and conditions of
this Agreement, and that he enters into this Agreement with a full understanding
of its terms and conditions.
11.2. ARBITRATION OF DISPUTES. All claims, disputes and other
matters in question arising out of or relating to this Agreement or the
breach or interpretation thereof, other than those matters which are to be
determined by the Employer in its sole and absolute discretion, shall be
resolved by binding arbitration before a representative member, selected by
the mutual agreement of the parties, of the Judicial Arbitration and
Mediation Services, Inc. ("JAMS"), presently located at Two Embarcadero
Center, Suite 1100, in San Francisco, California. In the event JAMS is
unable or unwilling to conduct the arbitration provided for under the terms
of this Paragraph, or has discontinued its business, the parties agree that a
representative member, selected by the mutual agreement of the parties, of
the American Arbitration Association ("AAA"), presently located at 000
Xxxxxxxxxx Xxxxxx, xx Xxx Xxxxxxxxx, Xxxxxxxxxx, shall conduct the binding
arbitration referred to in this Paragraph. Notice of the
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demand for arbitration shall be filed in writing with the other party to this
Agreement and with JAMS (or AAA, if necessary). In no event shall the demand
for arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statute of limitations. The arbitration shall be
subject to such rules of procedure used or established by JAMS, or if there
are none, the rules of procedure used or established by AAA. Any award
rendered by JAMS or AAA shall be final and binding upon the parties, and as
applicable, their respective heirs, beneficiaries, legal representatives,
agents, successors and assigns, and may be entered in any court having
jurisdiction thereof. The obligation of the parties to arbitrate pursuant to
this clause shall be specifically enforceable in accordance with, and shall
be conducted consistently with, the provisions of Title 9 of Part 3 of the
California Code of Civil Procedure. Any arbitration hereunder shall be
conducted in Fresno, California, unless otherwise agreed to by the parties.
11.3. ATTORNEYS' FEES. In the event of any arbitration or
litigation concerning any controversy, claim or dispute between the parties
hereto, arising out of or relating to this Agreement or the breach hereof, or
the interpretation hereof, the prevailing party shall be entitled to recover
from the losing party reasonable expenses, attorneys' fees and costs incurred in
connection therewith or in the enforcement or collection of any judgment or
award rendered therein. The "prevailing party" means the party determined by
the arbitrator(s) or court, as the case may be, to have most nearly prevailed,
even if such party did not prevail in all matters, not necessarily the one in
whose favor a judgment is rendered.
11.4. NOTICE. Any notice required or permitted of either the
Executive or the Employer under this Agreement shall be deemed to have been duly
given, if by personal delivery, upon the date received by the party or its
authorized representative; if by facsimile, upon transmission to a telephone
number previously provided by the party to whom the facsimile is transmitted as
reflected in the records of the party transmitting the facsimile and upon
reasonable confirmation of such transmission; and if by mail, on the third day
after mailing via U.S. first class mail, registered or certified, postage
prepaid and return receipt requested, and addressed to the party at the address
given below for the receipt of notices, or such changed address as may be
requested in writing by a party.
If to the Employer: Regency Bank
P. O. Xxx 00000
Xxxxxx, XX 00000
Attn: Chairman of the Board
If to the Executive: Xx. Xxxxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
11.5. ASSIGNMENT. Neither the Executive, the Executive's spouse,
nor any other
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beneficiary under this Agreement shall have any power or right to
transfer, assign, anticipate, hypothecate, modify or otherwise encumber any part
or all of the amounts payable hereunder, nor, prior to payment in accordance
with the terms of this Agreement, shall any portion of such amounts be: (i)
subject to seizure by any creditor of any such beneficiary, by a proceeding at
law or in equity, for the payment of any debts, judgments, alimony or separate
maintenance obligations which may be owed by the Executive, the Executive's
spouse, or any designated beneficiary; or (ii) transferable by operation of law
in the event of bankruptcy, insolvency or otherwise. Any such attempted
assignment or transfer shall be void and shall terminate this Agreement, and the
Employer shall thereupon have no further liability hereunder.
11.6. BINDING EFFECT/MERGER OR REORGANIZATION. This Agreement
shall be binding upon and inure to the benefit of the Executive and the Employer
and, as applicable, their respective heirs, beneficiaries, legal
representatives, agents, successors and assigns. Accordingly, the Employer
shall not merge or consolidate into or with another corporation, or reorganize
or sell substantially all of its assets to another corporation, firm or person,
unless and until such succeeding or continuing corporation, firm or person
agrees to assume and discharge the obligations of the Employer under this
Agreement. Upon the occurrence of such event, the term "Employer" as used in
this Agreement shall be deemed to refer to such surviving or successor firm,
person, entity or corporation.
11.7. NONWAIVER. The failure of either party to enforce at any
time or for any period of time any one or more of the terms or conditions of
this Agreement shall not be a waiver of such term(s) or condition(s) or of that
party's right thereafter to enforce each and every term and condition of this
Agreement.
11.8. PARTIAL INVALIDITY. If any term, provision, covenant, or
condition of this Agreement is determined by an arbitrator or a court, as the
case may be, to be invalid, void, or unenforceable, such determination shall not
render any other term, provision, covenant or condition invalid, void or
unenforceable, and the Agreement shall remain in full force and effect
notwithstanding such partial invalidity.
11.9. ENTIRE AGREEMENT. This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties with respect to
the subject matter of this Agreement and contains all of the covenants and
agreements between the parties with respect thereto. Each party to this
Agreement acknowledges that no other representations, inducements, promises, or
agreements, oral or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not set forth herein, and that no other
agreement, statement, or promise not contained in this Agreement shall be valid
or binding on either party.
11.10. MODIFICATIONS. Any modification of this Agreement shall be
effective only if it is in writing and signed by each party or such party's
authorized representative.
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11.11. PARAGRAPH HEADINGS. The paragraph headings used in this
Agreement are included solely for the convenience of the parties and shall not
affect or be used in connection with the interpretation of this Agreement.
11.12. NO STRICT CONSTRUCTION. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be applied against any
person.
11.13. GOVERNING LAW. The laws of the State of California, other
than those laws denominated choice of law rules, and, where applicable, the
rules and regulations of the Office of the California Superintendent of Banks
and the Federal Deposit Insurance Corporation, shall govern the validity,
interpretation, construction and effect of this Agreement.
IN WITNESS WHEREOF, the Employer and the Executive have executed this
Agreement on the date first above-written in the City of Fresno, Fresno County,
California.
THE EMPLOYER: THE EXECUTIVE:
Regency Bank,
A California State Chartered Bank
By: /s/ Xxxxx X. Price /s/ Xxxxxx X. Xxxxxx
------------------------------- ------------------------
Vice Chairman of the Board Xxxxxx X. Xxxxxx
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SCHEDULE A
NUMBER OF COMPLETE
YEARS WHICH HAVE ELAPSED APPLICABLE PERCENTAGE
------------------------ ---------------------
1. . . . . . . . . . . . . . . . . . . . 10.00%
2. . . . . . . . . . . . . . . . . . . . 20.00%
3. . . . . . . . . . . . . . . . . . . . 30.00%
4. . . . . . . . . . . . . . . . . . . . 40.00%
5. . . . . . . . . . . . . . . . . . . . 50.00%
6. . . . . . . . . . . . . . . . . . . . 60.00%
7. . . . . . . . . . . . . . . . . . . . 70.00%
8. . . . . . . . . . . . . . . . . . . . 80.00%
9. . . . . . . . . . . . . . . . . . . . 90.00%
10 . . . . . . . . . . . . . . . . . . . 100.00%
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SCHEDULE B
BENEFICIARY DESIGNATION
To the Administrator of the Regency Bank Amended and Restated Executive
Salary Continuation Agreement:
Pursuant to the provisions of my Amended and Restated Executive Salary
Continuation Agreement with Regency Bank, permitting the designation of a
beneficiary or beneficiaries by a participant, I hereby designate the following
persons and entities as primary and secondary beneficiaries of any benefit under
said Agreement payable by reason of my death:
PRIMARY BENEFICIARY:
000 X. Xxxxxxxxxx
Xxxxx X. Xxxxxx Xxxxxx, Xx. Spouse
-------------------- ------------------- --------------------
Name Address Relationship
SECONDARY (CONTINGENT) BENEFICIARY:
Xxxxx X. Xxxxxx 1/2 Same Son
Xxxxxxx X. Xxxxxx 1/2 Same Son
--------------------- ------------------- ----------------------
Name Address Relationship
THE RIGHT TO REVOKE OR CHANGE ANY BENEFICIARY DESIGNATION IS HEREBY RESERVED.
ALL PRIOR DESIGNATIONS, IF ANY, OF PRIMARY BENEFICIARIES AND SECONDARY
BENEFICIARIES ARE HEREBY REVOKED.
The Administrator shall pay all sums payable under the Agreement by reason of my
death to the Primary Beneficiary, if he or she survives me, and if no Primary
Beneficiary shall survive me, then to the Secondary Beneficiary, and if no named
beneficiary survives me, then the Administrator shall pay all amounts in
accordance with the terms of my Amended and Restated Executive Salary
Continuation Agreement. In the event that a named beneficiary survives me and
dies prior to receiving the entire benefit payable under said Agreement, then
and in that event, the remaining unpaid benefit payable according to the terms
of my Amended and Restated Executive Salary Continuation Agreement shall be
payable to the personal representatives of the estate of said beneficiary who
survived me but died prior to receiving the total benefit provided by my Amended
and Restated Executive Salary Continuation Agreement.
Dated: September 23, 1997 /s/ Xxxxxx X. Xxxxxx
--------------------------------
XXXXXX X. XXXXXX
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CONSENT OF THE EXECUTIVE'S SPOUSE
TO THE ABOVE BENEFICIARY DESIGNATION:
-------------------------------------
I, Xxxxx X. Xxxxxx, being the spouse of Xxxxxx X. Xxxxxx, after being
afforded the opportunity to consult with independent counsel of my choosing, do
hereby acknowledge that I have read, agree and consent to the foregoing
Beneficiary Designation which relates to the Amended and Restated Executive
Salary Continuation Agreement entered into between Regency Bank and my spouse.
I understand that the above Beneficiary Designation may affect certain rights
which I may have in the benefits provided for under the terms of the Amended and
Restated Executive Salary Continuation Agreement and in which I may have a
marital property interest.
Dated: 9/23, 1997 /s/ Xxxxx X. Xxxxxx
------------------------ -------------------------------
Xxxxx X. Xxxxxx
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CERTIFICATE OF ACKNOWLEDGMENT
OF NOTARY PUBLIC
State of California )
) ss.
County of ________________ )
On ____________, 1997, before me, _______________, Notary Public, State of
California, personally appeared Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx,
/ / personally known to me - OR
/ / proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------
Notary Public,
State of California
(Seal)
CAPACITY CLAIMED BY SIGNER:
/ / Individual(s) Signing for Oneself/Themselves
/ / Corporate Officer(s) ----------------- -----------------
Title Company
----------------- -----------------
Title Company
/ / Partner(s) --------------------------------------------------
Partnership
/ / Trustees(s)--------------------------------------------------
Trust
/ / Attorney-in-Fact ---------------------- -------------------
Principal Principal
/ / Other ___________________________ ______________________________
Entity(ies) Represented Entity(ies) Represented
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Title or Type of Document:___________________ Date of Document:_______________
Number of Pages:___________________________
Signer(s) Other Than Named
Above:______________________________________________________________________
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