Capital Corp of the West Salary Continuation Agreement
This
Salary Continuation Agreement
(this
“Agreement”) is entered into as of this 1st day of April, 2006, by and between
Capital Corp of the West with its main office in Merced, California (the
“Bank”), and Xxxxxxxxx Xxxxxxxx, Executive Vice President and Chief
Administrative Officer of the Bank (the “Executive”).
Whereas,
the
Executive has contributed substantially to the success of the Bank and the
Bank
desires that the Executive continue in its employ,
Whereas,
to
encourage the Executive to remain an employee of the Bank, the Bank is willing
to provide salary continuation benefits to the Executive, payable out of the
Bank’s general assets, and
Whereas,
none of
the conditions or events included in the definition of the term “golden
parachute payment” that is set forth in section 18(k)(4)(A)(ii) of the Federal
Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit
Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists
or,
to the best knowledge of the Bank, is contemplated insofar as the Bank is
concerned.
Now
Therefore,
in
consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
Article
1
Definitions
Whenever
used in this Agreement, the following terms shall have the meanings
specified:
1.1 “Accrual
Balance”
means
the liability that should be accrued by the Bank under generally accepted
accounting principles (“GAAP”) for the Bank’s obligation to the Executive under
this Agreement, by applying Accounting Principles Board 12, as amended by
Financial Accounting Standard 106, and the calculation method and discount
rate
specified hereinafter. The Accrual Balance shall be calculated assuming a level
principal amount and interest as the discount rate is accrued each period.
The
principal accrual is determined such that when it is credited with interest
each
month, the Accrual Balance at Normal Retirement Age equals the present value
of
the normal retirement benefits. The discount rate means the rate used by the
Plan Administrator for determining the Accrual Balance. The rate is based on
the
yield on a 20-year corporate bond rated Aa by Xxxxx’x, rounded to the nearest
¼%. The initial discount rate is 7%. However, the Plan Administrator, in its
sole discretion, may adjust the discount rate to maintain the rate within
reasonable standards according to GAAP.
1.2 “Change
in Control”
means
any of the following events occurs —
(a)
Merger:
Capital
Corp of the West merges into or consolidates with another corporation, or merges
another corporation into Capital Corp of the West, and as a result less than
75%
of the combined voting power of the resulting corporation immediately after
the
merger or consolidation is held by persons who were stockholders of Capital
Corp
of the West immediately before the merger or consolidation,
(b)
Acquisition
of Significant Share Ownership:
a
report on Schedule 13D or another form or schedule (other than Schedule 13G)
is
filed or is required to be filed under Sections 13(d) or 14(d) of the Securities
Exchange Act of 1934, if the schedule discloses that the filing person or
persons acting in concert has or have become the beneficial owner of 25% or
more
of a class of Capital Corp of the West’s voting securities, but this clause (b)
shall not apply to beneficial ownership of Capital Corp of the West voting
shares held in a fiduciary capacity by an entity of which Capital Corp of the
West directly or indirectly beneficially owns 50% or more of its outstanding
voting securities or voting shares held by an employee benefit plan maintained
for the benefit of County Bank’s employees,
(c)
Change
in Board Composition:
during
any period of two consecutive years, individuals who constitute Capital Corp
of
the West’s board of directors at the beginning of the two-year period cease for
any reason to constitute at least a majority of Capital Corp of the West’s board
of directors; provided,
however,
that —
for purposes of this clause (c) — each director who is first elected by the
board (or first nominated by the board for election by stockholders) by a vote
of at least two-thirds of the directors who were directors at the beginning
of
the period shall be deemed to have been a director at the beginning of the
two-year period, or
(d)
Sale
of Assets:
Capital
Corp of the West sells to a third party substantially all of Capital Corp of
the
West’s assets. For purposes of this Agreement, sale of substantially all of
Capital Corp of the West’s assets includes sale of the Bank alone.
1.3 “Disability”
means
the Executive suffers a sickness, accident or injury that is determined by
the
carrier of any individual or group disability insurance policy covering the
Executive, or by the Social Security Administration, to be a disability
rendering the Executive totally and permanently disabled. At the Bank’s request,
the Executive must submit to the Bank proof of the carrier’s or Social Security
Administration’s determination.
1.4 “Early
Termination”
means
Termination of Employment with the Bank before Normal Retirement Age, but “Early
Termination” excludes Termination of Employment as a result of death,
Disability, Termination for Cause, or Termination of Employment after a Change
in Control.
1.5 “Early
Termination Date”
means
the month, day and year on which Early Termination occurs.
1.6 “Effective
Date”
means
the date and year first written above.
1.7 “Normal
Retirement Age”
means
the Executive’s 65th
birthday.
1.8 “Normal
Retirement Date”
means
the later of the Normal Retirement Age and Termination of Employment with the
Bank.
1.9 “Person”
means
an individual, corporation, partnership, trust, association, joint venture,
pool, syndicate, sole proprietorship, unincorporated organization or other
entity.
1.10 “Plan
Administrator”
means
the plan administrator described in Article 7.
1.11 “Plan
Year”
means
the calendar year ending on March 31.
1.12 “Termination
for Cause”
means
the definition of termination for cause specified in any effective severance
or
employment agreement existing on the date hereof or hereafter entered into
between the Executive and the Bank or Capital Corp of the West. If the Executive
is not a party to an effective severance or employment agreement containing
a
definition of termination for cause, Termination for Cause means the Bank has
terminated the Executive’s employment for any of the following reasons
—
|
|
(a)
|
gross
negligence or gross neglect of duties,
or
|
|
|
(b)
|
fraud,
disloyalty or willful violation of any law or significant Bank policy
committed in the course of the Executive’s employment and resulting in an
adverse effect on the Bank. No act or failure to act on the Executive’s
part shall be considered “willful” unless the Executive has acted without
good faith, or without good faith has failed to act, and the Executive’s
action or inaction is without a reasonable belief that his action
or
inaction is in the Bank’s best
interests.
|
1.13 “Termination
of Employment”
means
that the Executive shall have ceased to be employed by the Bank for any reason
whatsoever, excepting a leave of absence approved by the Bank. For purposes
of
this
Agreement,
if there is a dispute over the employment status of the Executive or the date
of
termination of the Executive’s employment, the Bank shall have the sole and
absolute right to decide the dispute, unless a Change in Control shall have
occurred within 24 months before termination of employment.
Article
2
Lifetime
Benefits
2.1 Normal
Retirement Benefit.
Upon
the Executive’s Termination of Employment on or after the Normal Retirement Age
for reasons other than death, the Bank shall pay to the Executive the benefit
described in this Section 2.1 instead of any other benefit under this Agreement.
2.1.1
Amount
of Benefit.
The
annual benefit under this Section 2.1 is $85,000, as reflected in Schedule
A. In
its sole discretion, the Bank’s board of directors may increase the annual
benefit under this Section 2.1.1, but any increase shall require recalculation
of Schedule A.
2.1.2
Payment
of Benefit.
Beginning with the month after the Executive’s Normal Retirement Date, the Bank
shall pay the annual benefit to the Executive in 12 equal monthly installments
on the first day of each month. The annual benefit shall be paid to the
Executive for 15 years.
2.2 Early
Termination Benefit.
For
Early Termination, the Bank shall pay to the Executive the benefit described
in
this Section 2.2 instead of any other benefit under this Agreement.
2.2.1
Amount
of Benefit.
The
benefit under this Section 2.2 is that portion of the annual benefit specified
in Section 2.1.1 in which the Executive shall have become vested on or before
the Early Termination Date according to the vesting schedule set forth in
Schedule A. In its sole discretion, the Bank’s board of directors may increase
the annual benefit under this Section 2.2.1, but any increase shall require
recalculation of Schedule A.
2.2.2
Payment
of Benefit.
Beginning with the month after the Executive’s Normal Retirement Date, the Bank
shall pay the annual benefit to the Executive in 12 equal monthly installments
on the first day of each month. The annual benefit shall be paid to the
Executive for 15 years.
2.3 Disability
Benefit.
If the
Executive terminates employment because of Disability before the Normal
Retirement Age, the Bank shall pay to the Executive the benefit described in
this Section 2.3 instead of any other benefit under this Agreement.
2.3.1
Amount
of Benefit.
The
benefit under this Section 2.3 is the Disability annual benefit amount set
forth
in Schedule A for the Plan Year ending immediately before the date on which
Termination of Employment occurs. In its sole discretion, the Bank’s board of
directors may increase the annual benefit under this Section 2.3.1, but any
increase shall require recalculation of Schedule A.
2.3.2
Payment
of Benefit.
Beginning with the month after the Executive’s Normal Retirement Date, the Bank
shall pay the Disability annual benefit amount to the Executive in 12 equal
monthly installments on the first day of each month. The annual benefit shall
be
paid to the Executive for 15 years.
2.4 Change-in-Control
Benefit.
Instead
of any other benefit under this Agreement, the Bank shall pay to the Executive
the benefit described in this Section 2.4 if a Change in Control occurs after
the Effective Date of this Agreement but before the Executive’s Termination of
Employment. However, no benefits shall be payable under this Agreement if
Termination of Employment occurs under Article 5 of this
Agreement.
2.4.1
Amount
of Benefit:
The
Executive shall be 100% vested in the annual benefit specified in Section 2.1.1
as of the date of a Change in Control. In its sole discretion, the Bank’s board
of directors may increase the annual benefit under this Section 2.4.1, but
any
increase shall require recalculation of Schedule A.
2.4.2
Payment
of Benefit:
Beginning with the month after the Executive’s Normal Retirement Date, the Bank
shall pay the Change-in-Control benefit amount to the Executive in 12 equal
monthly installments on the first day of each month. The annual benefit shall
be
paid to the Executive for 15 years.
2.5
Petition
for Payment of Vested Normal Retirement Benefit, Early Termination Benefit,
Disability Benefit, or Change-in-Control Benefit.
If the
Executive is entitled to the Disability benefit provided by Section 2.3 or
the
Change-in-Control benefit provided by Section 2.4, or if the Executive is
entitled to the Normal Retirement benefit provided by Section 2.1 or Early
Termination benefit provided by Section 2.2, the Executive may petition the
board of directors to have the Accrual Balance amount corresponding to that
particular benefit paid to the Executive in a single lump sum after deduction
of
any benefits already paid hereunder. The board of directors shall have sole
and
absolute discretion about whether to pay the remaining Accrual Balance in a
lump
sum. If payment of the remaining Accrual Balance is paid in a single lump sum,
the Bank shall have no further obligations under this Agreement.
2.6
Contradiction
in Terms of Agreement and Schedule A.
If
there is a contradiction in the terms of this Agreement and Schedule A attached
hereto concerning the benefits due under Section 2.2, 2.3 or 2.4 hereof, then
the actual amount of benefits prescribed by this Agreement shall
control.
2.7 Service
Beyond the Normal Retirement Age.
If the
Executive continues his employment with the Bank beyond the Normal Retirement
Age, his receipt of normal retirement benefits will be deferred until his
ultimate Termination of Employment, and the value of those benefits may
therefore be considered diminished somewhat by the time value of money.
Accordingly, the Bank and the Executive agree to review the normal retirement
benefit amount reflected in Section 2.1.1 if the Executive elects to continue
his employment beyond the Normal Retirement Age. If agreed to by the Bank and
the Executive, the normal retirement benefit amount specified in Section 2.1.1
may be increased to account for the time value of money for the period from
the
Executive's Normal Retirement Age until his Termination of Employment, employing
the discount rate established by the Plan Administrator under Section
1.1.
Article
3
Death
Benefits
3.1 Death
During Active Service.
Except
as provided in Section 5.2, if the Executive dies in active service to the
Bank
before the Normal Retirement Date, the Bank shall pay to the Executive’s
beneficiary(ies) in a single lump sum within three months after the Executive’s
death an amount equal to the Accrual Balance as of the date of the Executive’s
death. Alternatively, the Executive may elect for his beneficiary(ies) to
receive his death benefits in accordance with section 2.1 of this Agreement
beginning in the month following the month the Executive would have reached
Normal Retirement Age, had he survived.
3.2 Death
Before or During Benefit Period.
If the
Executive dies after benefit payments under Article 2 of this Agreement have
commenced but before receiving all such payments, or if the Executive is
entitled to benefit payments under Article 2 but dies before payments commence,
the Bank shall pay the benefits or remaining benefits to the Executive’s
beneficiary(ies) or estate at the same time and in the same amounts they would
have been paid to the Executive had the Executive survived.
3.3 Petition
for Benefit Payments.
If the
Executive dies before receiving any or all benefit payments to which he or
she
is entitled under Section 2.1, Section 2.2, Section 2.3 or Section 2.4, the
Executive’s beneficiary(ies) or estate may petition the board of directors to
have the Accrual Balance corresponding to that
particular
benefit paid to the Executive’s beneficiary(ies) or estate in a single lump sum
after deduction of any normal retirement benefits, early termination benefits,
Disability benefits, or Change-in-Control benefits already paid hereunder.
The
board of directors shall have sole and absolute discretion about whether to
pay
the remaining Accrual Balance in a lump sum. If payment of the remaining Accrual
Balance is paid in a single lump sum, the Bank shall have no further obligations
under this Agreement.
Article
4
Beneficiaries
4.1 Beneficiary
Designations.
The
Executive shall designate a beneficiary or beneficiaries by filing a written
designation with the Bank. The Executive may revoke or modify the designation
at
any time by filing a new designation. However, designations will be effective
only if signed by the Executive and accepted by the Bank during the Executive’s
lifetime. The Executive’s beneficiary designation shall be deemed automatically
revoked if the beneficiary predeceases the Executive, or if the Executive names
a spouse as beneficiary and the marriage is subsequently dissolved. If the
Executive dies without a valid beneficiary designation, all payments shall
be
made to the Executive’s estate.
4.2 Facility
of Payment.
If a
benefit is payable to a minor, to a person declared incapacitated, or to a
person incapable of handling the disposition of his or her property, the Bank
may pay such benefit to the guardian, legal representative or person having
the
care or custody of such minor, incapacitated person or incapable person. The
Bank may require such proof of incapacity, minority or guardianship as the
Bank
deems appropriate before distribution of the benefit. Distribution shall
completely discharge the Bank from all liability for such benefit.
Article
5
General
Limitations
5.1 Termination
for Cause.
Notwithstanding any provision of this Agreement to the contrary, the Bank shall
not pay any benefit under this Agreement if the Executive’s employment is
terminated in a Termination for Cause.
5.2 Misstatement
on Insurance Application.
The
Bank shall not pay any benefit under this Agreement if the Executive has made
any material misstatement of fact on any application for life insurance
purchased by the Bank.
5.3 Removal.
If the
Executive is removed from office or permanently prohibited from participating
in
the conduct of the Bank’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),
all
obligations of the Bank under this Agreement shall terminate as of the effective
date of the order.
5.4 Insolvency.
If the
Commissioner of the California Department of Financial Institutions appoints
the
Federal Deposit Insurance Corporation as receiver for the Bank under California
Financial Code sections 3220-3225, all obligations under this Agreement shall
terminate as of the date of the Bank’s declared insolvency.
Article
6
Claims
and Review Procedures
6.1 Claims
Procedure.
A
person or beneficiary (“claimant”) who has not received benefits under the
Agreement that he or she believes should be paid shall make a claim for such
benefits as follows —
6.1.1
Initiation
- Written Claim.
The
claimant initiates a claim by submitting to the Bank a written claim for the
benefits.
6.1.2
Timing
of Bank Response.
The
Bank shall respond to such claimant within 90 days after receiving the claim.
If
the Bank determines that special circumstances require additional time for
processing the claim, the Bank can extend the response period by an additional
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 Bank expects
to render its decision.
6.1.3
Notice
of Decision.
If the
Bank denies part or all of the claim, the Bank shall notify the claimant in
writing of such denial. The Bank shall write the notification in a manner
calculated to be understood by the claimant. The notification shall set forth
—
6.1.3.1 The
specific reasons for the denial,
6.1.3.2 A
reference to the specific provisions of the Agreement on which the denial
is
based,
6.1.3.3 A
description of any additional information or material necessary for
the
claimant
to perfect the claim and an explanation of why it is needed,
6.1.3.4 An
explanation of the Agreement’s review procedures and the time limits
applicable
to such procedures, and
6.1.3.5 A
statement of the claimant’s right to bring a civil action under ERISA Section
502(a)
following an adverse benefit determination on review.
6.2 Review
Procedure.
If the
Bank denies part or all of the claim, the claimant shall have the opportunity
for a full and fair review by the Bank of the denial, as follows —
6.2.1
Initiation
- Written Request.
To
initiate the review, the claimant, within 60 days after receiving the Bank’s
notice of denial, must file with the Bank a written request for
review.
6.2.2
Additional
Submissions - Information Access.
The
claimant shall then have the opportunity to submit written comments, documents,
records and other information relating to the claim. The Bank shall also provide
the claimant, upon request and free of charge, reasonable access to, and copies
of, all documents, records and other information relevant (as defined in
applicable ERISA regulations) to the claimant’s claim for benefits.
6.2.3.
Considerations
on Review.
In
considering the review, the Bank shall take into account all materials and
information the claimant submits relating to the claim, without regard to
whether such information was submitted or considered in the initial benefit
determination.
6.2.4
Timing
of Bank Response.
The
Bank shall respond in writing to such claimant within 60 days after receiving
the request for review. If the Bank determines that special circumstances
require additional time for processing the claim, the Bank can extend the
response period by an additional 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 Bank expects to render its decision.
6.2.5
Notice
of Decision.
The
Bank shall notify the claimant in writing of its decision on review. The Bank
shall write the notification in a manner calculated to be understood by the
claimant. The notification shall set forth —
6.2.5.1 The
specific reason for the denial,
6.2.5.2 A
reference to the specific provisions of the Agreement on which the denial is
based,
6.2.5.3 A
statement that the claimant is entitled to receive, upon request and free of
charge,
reasonable access to, and copies of, all documents, records and other
information
relevant (as defined in applicable ERISA regulations) to the
claimant’s
claim for benefits, and
6.2.5.4
A
statement of the claimant’s right to bring a civil action under ERISA Section
502(a).
Article
7
ADMINISTRATION
OF AGREEMENT
7.1 Plan
Administrator Duties. This
Agreement shall be administered by a Plan Administrator consisting of the board
or such committee or person(s) the board shall appoint. The Executive may be
a
member of the Plan Administrator. The Plan Administrator shall also have the
discretion and authority to (a) make, amend, interpret, and enforce all
appropriate rules and regulations for the administration of this Agreement
and
(b) 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 Bank.
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 Executive or Beneficiary shall be deemed to have any right,
vested or nonvested, regarding continued use of any previously adopted
assumptions, including but not limited to the discount rate and calculation
method employed in the determination of the Accrual Balance.
7.4 Indemnity
of Plan Administrator.
The
Bank 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 Bank
Information.
To
enable the Plan Administrator to perform its functions, the Bank 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 Termination
of Employment of the Executive and such other pertinent information as the
Plan
Administrator may reasonably require.
ARTICLE
8
MISCELLANEOUS
8.1 Binding
Effect.
This
Agreement shall bind the Executive and the Bank, and their beneficiaries,
survivors, executors, successors, administrators, and transferees.
8.2 Amendments
and Termination.
Subject
to section 8.15 of this Agreement, this Agreement may be amended or terminated
only by a written agreement signed by the Bank and the Executive.
8.3 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 Bank, nor does it interfere
with the Bank’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.
8.4 Non-Transferability.
Benefits under this Agreement cannot be sold, transferred, assigned, pledged,
attached, or encumbered in any manner.
8.5 Successors;
Binding Agreement.
By an
assumption agreement in form and substance satisfactory to the Executive, the
Bank shall require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Bank to expressly assume and agree to perform this Agreement
in
the same manner and to the same extent that the Bank would be required to
perform this Agreement if no such succession had occurred. The Bank’s failure to
obtain such an assumption agreement before the succession becomes effective
shall be considered a breach of this Agreement and shall entitle the Executive
to the Change-in-Control benefit specified in Section 2.4.
8.6 Tax
Withholding.
The
Bank shall withhold any taxes that are required to be withheld from the benefits
provided under this Agreement.
8.7 Applicable
Law.
Except
to the extent preempted by the laws of the United States of America, the
validity, interpretation, construction, and performance of this Agreement shall
be governed by and construed in accordance with the laws of the State of
California, without giving effect to the principles of conflict of laws of
such
state.
8.8 Unfunded
Arrangement.
The
Executive and the Executive’s beneficiary(ies) are general unsecured creditors
of the Bank for the payment of benefits under this Agreement. The benefits
represent the mere promise by the Bank to pay such benefits. The rights to
benefits are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment, or garnishment by
creditors. Any insurance on the Executive’s life is a general asset of the Bank
to which the Executive and beneficiary(ies) have no preferred or secured
claim.
8.9 Entire
Agreement.
This
Agreement constitutes the entire agreement between the Bank 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. This Agreement
supersedes and replaces in its entirety the existing Executive Salary
Continuation Agreement referenced in the recitals of this Agreement, and after
the effective date of this Agreement the existing Executive Salary Continuation
Agreement shall be of no further force or effect.
8.12 Severability.
If for
any reason any provision of this Agreement is held invalid, such invalidity
shall not affect any other provision of this Agreement not held invalid, and
to
the full extent consistent with law each such other provision shall continue
in
full force and effect. If any provision of this Agreement is held invalid in
part, such invalidity shall not affect the remainder of such provision not
held
invalid, and to the full extent consistent with law the remainder of such
provision, together with all other provisions of this Agreement, shall continue
in full force and effect.
8.13 Headings.
The
captions and headings of sections herein are included solely for convenience
of
reference and shall not affect the meaning or interpretation of any provision
of
this Agreement.
8.14 Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed, certified or registered mail, return receipt requested, with postage
prepaid, to the following addresses or to such other address as either party
may
designate by like notice.
(a) If
to the
Bank, to:
Board
of
Directors
Capital
Corp of the West
000
Xxxx
Xxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxx 00000
(b) If
to the
Executive, to:
Xxxxxxxxx
Xxxxxxxx
000
Xxxx
Xxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxx 00000
and
to
such other or additional person or persons as either party shall have designated
to the other party in writing by like notice.
8.15 Termination
or Modification of Agreement Because of Changes in the Law, Rules or
Regulations.
The
Bank is entering into this Agreement on the assumption that certain existing
tax
laws, rules, and regulations will continue in effect in their current form.
If
that assumption materially changes and the change has a material detrimental
effect on this Agreement, then the Bank reserves the right to terminate or
modify this Agreement accordingly, subject to obtaining the written consent
of
the Executive, which shall not be unreasonably withheld. This section 8.15
shall
become null and void effective immediately upon a Change in
Control.
8.16 Advice
of Counsel.
Before
signing this Agreement, Executive either (a) consulted with and obtained advice
from Executive’s independent legal counsel concerning the legal nature and
operations of this Agreement, including its impact on Executive’s rights,
privileges, and obligations, or (b) freely and voluntarily decided not to have
the benefit of consultation with and advice of legal counsel.
8.17 Automatic
Review Procedure.
On the
third year anniversary of the Effective Date of this Agreement, and every third
year thereafter, the Bank shall review this Agreement for reasonableness of
benefits, taking into account the Executive’s compensation on the date of the
review and Bank-provided benefits that may be provided to the Executive after
retirement from other sources. For purposes of this Agreement, Bank-provided
benefits shall include, but are not limited to, matching contributions under
the
Bank’s 401(k) plan, contributions under the ESOP plan, and the Bank portion of
Social Security benefits.
In
Witness Whereof,
the
Executive and a duly authorized Bank officer have signed this Salary
Continuation Agreement as of the day and year first written above.
The
Executive: The
Bank:
Capital
corp of the west
_/s/Xxxxxxxxx
Wholford_____________ By:__/s/
Xxxxxx X. Hawker______________________
Xxxxxxxxx
Xxxxxxxx
Xxxxxx
X.
Xxxxxx Its:__CEO____________________
Beneficiary
Designation
Capital
corp of the west
I
designate the following as beneficiary of any death benefits under this Salary
Continuation Agreement:
Primary:
______________________________________________________
Contingent:
___________________________________________________
Note:
To
name a trust as beneficiary, please provide the name of the trustee(s) and
the
exact
name and date of the trust agreement.
I
understand that I may change these beneficiary designations by filing a new
written designation with the Bank. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or if I have
named my spouse as beneficiary and our marriage is subsequently
dissolved.
I
elect
to have my death benefits paid to my beneficiary(ies) in the following
form:
|
__X__
|
Lump
sum payment of the accrual balance as of the date of my death, payable
within three (3) months of the date of my
death;
|
|
OR
|
|
_____
|
Payment
in monthly installments over a fifteen (15) year period, beginning
on the
month following the month I would have reached Normal Retirement
Age, had
I survived.
|
Signature:
__/s/ Xxxxxxxxx Wohlford____________
Xxxxxxxxx
Xxxxxxxx
|
Date:
|
|
Accepted
by the Bank this 1st
day
of
April,
2006.
|
By:___Thomas
T. Hawker_______
|
|
Xxxxxx
X.
Xxxxxx
Title:
CEO
|
Schedule
A
|
|||||||||
|
Dated
as of April 1, 2006
|
|||||||||
|
Salary
Continuation
|
|||||||||
|
Xxxxxxxxx
Xxxxxxxx
|
|||||||||
|
Early
|
|||||||||
|
Disability
|
Termination
|
If
Termination of Employment
|
|||||||
|
%
Vested
|
Benefit
@
|
Benefit
@
|
Occurs
After Change of Control
|
||||||
|
End
of
|
Plan
year
|
Executive
|
Accural
|
In
Normal
|
Normal
|
Normal
|
@
Normal Retirement Date:
|
||
|
Plan
|
Ending
|
Age
@
|
Balance
|
Retirement
|
Retirement
|
Retirement
|
Accural
|
Vested
|
|
|
Year
|
31-Mar
|
31-Mar
|
@
Vest %
|
Benefit
|
Date
|
Date
|
Balance
|
Benefit
|
|
|
Start
|
2006
|
49
|
-
|
0.00%
|
-
|
-
|
274,198
|
85,000
|
|
|
1
|
2007
|
50
|
-
|
0.00%
|
-
|
-
|
293,392
|
85,000
|
|
|
2
|
2008
|
51
|
-
|
0.00%
|
-
|
-
|
313,929
|
85,000
|
|
|
3
|
2009
|
52
|
-
|
0.00%
|
-
|
-
|
335,904
|
85,000
|
|
|
4
|
2010
|
53
|
143,767
|
40.00%
|
34,000
|
34,000
|
359,417
|
85,000
|
|
|
5
|
2011
|
54
|
192,288
|
50.00%
|
42,500
|
42,500
|
384,577
|
85,000
|
|
|
6
|
2012
|
55
|
246,898
|
60.00%
|
51,000
|
51,000
|
411,497
|
85,000
|
|
|
7
|
2013
|
56
|
308,211
|
70.00%
|
59,500
|
59,500
|
440,302
|
85,000
|
|
|
8
|
2014
|
57
|
376,898
|
80.00%
|
68,000
|
68,000
|
471,123
|
85,000
|
|
|
9
|
2015
|
58
|
453,691
|
90.00%
|
76,500
|
76,500
|
504,102
|
85,000
|
|
|
10
|
2016
|
59
|
539,389
|
100.00%
|
85,000
|
85,000
|
539,389
|
85,000
|
|
|
11
|
2017
|
60
|
577,146
|
100.00%
|
85,000
|
85,000
|
577,146
|
85,000
|
|
|
12
|
2018
|
61
|
617,546
|
100.00%
|
85,000
|
85,000
|
617,546
|
85,000
|
|
|
13
|
2019
|
62
|
660,774
|
100.00%
|
85,000
|
85,000
|
660,774
|
85,000
|
|
|
14
|
2020
|
63
|
707,029
|
100.00%
|
85,000
|
85,000
|
707,029
|
85,000
|
|
|
15
|
2021
|
64
|
756,521
|
100.00%
|
85,000
|
85,000
|
756,521
|
85,000
|
|
|
Balance
@ 65 =
|
65
|
774,173
|
100.00%
|
85,000
|
85,000
|
774,173
|
85,000
|
||
|
Note:
|
The
Age 65 Accural Balances are as of the normal retirement date of August
1st, 2021
|
||||||||
|
DOB
=
|
July
28, 1956
|
Credit
Rate =
|
7.00%
|
||||||
|
Retirement
= August 1, 2021
|
Benefit
=
|
85,000
|
|||||||
