EXECUTIVE SALARY CONTINUATION AGREEMENT
This Executive Salary Continuation Agreement (the "Agreement") is dated
as of January 1, 1988, by and between National Bank of Southern California, a
national banking association (the "Bank") and Xxxx X. Xxxxxxxx ("Executive").
R E C I T A L S
A. Executive is employed by the Bank as its Executive Vice President;
B. The Bank and California Commercial Bankshares, a California
corporation ("CCB") and the Bank's parent corporation, have determined that it
is in the Bank's best interests to grant the benefits described herein to
Executive as an inducement for Executive to remain in the employ of the Bank and
for increasing Executive's efforts during such employment; and
C. Executive desires to accept the benefits contained herein and to
continue in the employ of the Bank.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
BENEFITS UPON RETIREMENT
1.1 PAYMENT OF BENEFITS. Subject to the terms and conditions set
forth herein, the Bank agrees that upon Executive's "Retirement" (as defined
below) from the Bank, that the Bank shall pay to Executive the sum of Fifty-Five
Thousand Dollars ($55,000) per year for a period of fifteen (15) years (the
"Retirement Payments"). The Retirement Payments shall be paid by the Bank
monthly on the first day of each month following Executive's Retirement until
the total is paid in full.
1.2 RETIREMENT. The term "Retirement" shall mean Executive's
cessation from active continuous daily employment from the Bank as of the first
day of the month following Executive's attainment of age sixty (60) or upon such
later date as mutually agreed upon by Executive and the Bank.
1.3 DEATH AFTER RETIREMENT. If Executive shall so retire but die
before receiving the full amount of the Retirement Payments which Executive is
entitled to hereunder, the Bank shall pay all remaining and unpaid Retirement
Payments until such payments are paid in full to Executive's representative, or
the person entitled to receive such payments under Executive's will or the laws
of descent and distribution.
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ARTICLE II
TERMINATION OF SERVICE PRIOR TO RETIREMENT
2.1 TERMINATION BY DEATH. In the event Executive should die (with the
exception of death by suicide within two (2) years of the date of this Agreement
in which case all benefits hereunder shall be forfeited) while actively employed
by the Bank but prior to Retirement, the Bank shall pay the sum of Fifty-Five
Thousand Dollars ($55,000) per year for a period of fifteen (15) years (the
"Death Benefits"). The Death Benefits shall be payable in equal monthly
installments on the first day of each month following Executive's death to
Executive's representative or the person entitled to receive such payments under
Executive's will or the laws of descent and distribution.
2.2 TERMINATION BY DISABILITY. In the event Executive's employment
with the Bank is terminated because of Executive's disability prior to
Retirement, Executive shall be entitled to receive, and shall be 100% vested in
(i) the Retirement Payments referred to in Section 1.1 and, if applicable,
Section 1.3 hereof, commencing on Executive's retirement age referred to in
Section 1.2 hereof, or (ii) if Executive should die before reaching such
retirement age, the
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Death Benefits referred to in Section 2.1 hereof. In lieu of the benefits
referred to in (i) and (ii) of the preceding sentence, Executive may elect to
receive a disability benefit (the "Disability Benefit") in an amount equal to
the then present value of the Retirement Payments referred to in Sections 1.1
and 1.3 hereof. In arriving at the present value of such payments there shall
be applied a discount factor equal to two points over the Federal Reserve
Discount Rate in effect on the date of termination of employment. Executive's
election to receive the Disability Benefit shall be made by written notice to
the Bank within one-hundred twenty (120) days after termination of Executive's
employment, and the monthly payments shall commence not later than ninety (90)
days after receipt of such notice by the Bank. For purposes of this Agreement,
the term "disability" shall mean Executive's inability to perform his duties
whether by injury (physical or mental), illness, or otherwise, incapacitating
Executive for a continuous period exceeding 120 days and which at any time after
such 120 day period the Bank's Board of Directors shall determine permanently
renders Executive incapable of performing his services. Any determination made
in good faith by its Board of Directors shall be conclusive and binding upon
Executive.
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2.3 VOLUNTARY TERMINATION BY EXECUTIVE; TERMINATION BY BANK FOR
"CAUSE". In the event Executive's employment with the Bank is terminated prior
to Retirement either (i) voluntarily by Executive other than for "Good Reason"
(as defined below) or (ii) by the Bank for "Cause" (as defined herein), then
this Agreement and all of Bank's obligations hereunder shall terminate on the
date of such termination and no benefits or payments of any kind shall be made
to Executive pursuant to this Agreement. For purposes of this Agreement,
"Cause" means: (a) The willful and continued failure by Executive substantially
to perform Executive's duties with the Bank (other than such failure resulting
from Executive's disability) after demand for substantial performance has been
delivered by the Bank's Board of Directors to Executive which specifically
identifies the manner in which Executive has not substantially performed his
duties; (b) The willful engaging by Executive in gross misconduct materially and
demonstrably injurious to the Bank; or (c) Upon Executive's dishonesty,
conviction of a serious crime or habitual intemperance. The term "Good Reason"
shall mean: (i) The assignment to Executive without Executive's express consent
of duties which constitute a material reduction in the importance of Executive's
current position, authority or responsibilities or any other material adverse
change in Executive's current position, authority and responsibilities or any
other material adverse
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change in Executive's current position, authority and responsibilities; or (ii)
a change in assignment to a geographical location which is more than fifty (50)
miles from the location of the principal executive office of the Bank at the
time of entering into this Agreement; or (iii) material breach by the Bank of
the terms and conditions of this Agreement.
2.4 OTHER TERMINATION OF SERVICE BY BANK. In the event Executive's
employment with the Bank is terminated by the Bank prior to Executive's
Retirement for any reason other than for Executive's death, disability, or for
Cause, or is terminated by Executive for "Good Reason," then Executive shall be
entitled to (i) the Retirement Payments referred to in Section 1.1 and, if
applicable, Section 1.3 hereof, commencing on Executive's retirement age
referred to in Section 1.2 hereof, or (ii) if Executive should die before
reaching such retirement age, the Death Benefits referred to in Section 2.1, but
in the case of either (i) or (ii), only to the extent that Executive's interest
in such benefits is vested at the time of the termination of Executive's
employment. Executive's interest shall vest up to a maximum of one hundred
percent (100%) at the rate of ten percent (10%) per year for each year of
employment that Executive has been employed by the Bank commencing as of January
1, 1988. A year of employment shall equal twelve (12) full months of continu-
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ous service by Executive to the Bank from and after January 1, 1988.
ARTICLE III
CHANGES IN LAW; CHANGE IN CONTROL;
ALIENABILITY
3.1 TERMINATION OF AGREEMENT BY REASON OF CHANGES IN LAW. The Bank is
entering into this Agreement upon the assumption that certain existing tax laws
will continue in substantially their current form for the term of this
Agreement. In the event any changes in Federal Law relating to the tax free
accumulation of earnings within a life insurance policy, the income tax free
payment of proceeds from life insurance policies or the deduction from income of
interest payments on certificates of deposit issued by banking institutions
shall be adopted and such change or changes shall have the effect of
substantially and adversely impacting the economic assumptions upon which this
Agreement and the funding mechanism utilized by the Bank were based, the Bank
shall have the option unilaterally to terminate this Agreement. Upon such
termination by the Bank of this Agreement, Executive shall be 100% vested in the
amount set forth in Schedule "A" for the particular year in which such
termination occurs. Such amount shall be paid to Executive in a lump sum within
three (3) months of such termination of this Agreement.
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3.2 CHANGE IN CONTROL. The following provisions will become effective
immediately upon the occurrence of a "Change in Control" (as hereinafter
defined):
(a) If, at the time of a Change in Control, Executive is employed by
the Bank pursuant to an employment agreement, the term remaining under such
employment agreement shall, if less than three years in duration, be extended
for a period of three (3) years from and after the date on which the Change in
Control occurs. If Executive is not employed pursuant to the terms of a current
employment agreement at the time of a Change in Control, this Agreement shall
then become an employment agreement having a term of three (3) years from and
after the date on which the Change of Control occurs.
(b) Executive will receive cash compensation at an annual rate equal
to (i) Executive's annualized base salary in effect immediately prior to the
Change in Control, plus (ii) an amount equal to any cash bonus award or awards
received by Executive for the year immediately prior to the Change in Control.
Such compensation shall be increased annually on Executive's normal salary
review date (i.e., January 1 of each year) by whichever of the following amounts
results in the greater compensation: (i) an increase of 10% of the compensation
in effect for the immediately preceding year or (ii) an
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increase based upon 80% of the percentage increase in the Consumer Price Index
of Urban Wage Earners and Clerical Workers (Revised Series), Los Angeles-Long
Beach-Anaheim Average from the month of December last preceding the Change in
Control over the December immediately preceding the effective date of adjustment
being calculated. In addition, Executive shall continue to receive all non-cash
forms of compensation, perquisites and benefits which Executive was receiving
prior to the Change in Control.
(c) In the case of any termination of Executive's employment by
Executive for Good Reason or by the Bank for any reason other than Cause, the
Bank shall:
(i) pay Executive cash compensation, determined as provided in
subparagraph (b) above, during Executive's remaining employment term (including
any extension thereof pursuant to subparagraph (a) above), without any reduction
for the amount of compensation Executive may receive from any other source
(whether or not from another bank or financial institution), PROVIDED, however,
the aggregate amount of such payments shall in no event be less than two times
the annual cash compensation being paid to Executive at the time of such
termination;
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(ii) maintain in full force and effect, for Executive's
continued benefit during the remainder of such term all employee benefit plans
and programs in which Executive was entitled to participate immediately prior to
such termination, provided that Executive's continued participation is possible
under the general terms and provisions of such plans and programs. If
Executive's participation in any such plan or program is barred, the Bank shall
arrange to provide Executive with benefits substantially similar to those which
Executive would otherwise have been entitled to receive under such plans and
programs; and
(iii) Executive shall continue to be entitled to the benefits
provided under Section 2.4 hereof.
(d) The other provisions of this Agreement which are not inconsistent
with the provisions of this Section 3.2 shall continue in full force and effect.
(e) As used herein, a "Change in Control" shall be deemed to have
occurred if:
(i) Excluding CCB's directors as of the date of this Agreement,
any person, or any two or more persons acting as a group, and all affiliates of
such person or
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persons, shall own beneficially more than 40% of CCB's outstanding common stock
(exclusive of shares held in the Company's treasury or by the Company's
subsidiaries) which shall have been acquired after the date of this Agreement
pursuant to a tender offer, exchange offer or series of purchases or other
acquisitions, or any combination of those transactions;
(ii) There shall be a change in the composition of CCB's or the
Bank's Board of Directors at any time within two years after any tender offer,
exchange offer, merger, consolidation, sale of assets or contested election or
any combination of those transactions (a "Transaction"), so that the persons who
are directors of CCB or the Bank immediately before the first Transaction cease
to constitute a majority of the Board of Directors of CCB or the Bank or any
corporation which may be the successor to CCB or the Bank in any such
transaction; or
(iii) CCB shall sell, transfer or otherwise dispose of
substantially all of its assets and properties including the stock of the Bank
or CCB shall cause the Bank to sell, transfer or otherwise dispose of
substantially all of its assets and properties.
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A Change in Control shall be deemed to take place upon the first
to occur of those events specified in the foregoing clauses (i), (ii) or (iii).
(f) Notwithstanding anything in this Agreement to the contrary, if and
to the extent (but only to the extent) that any payment made under this
Agreement shall constitute an "excess parachute payment" under Section 280G of
the Internal Revenue Code as in effect on January 1, 1987 (or, if at the time of
any such "excess parachute payment" said Section 280G shall have been amended to
provide more favorable treatment to Executive without materially adversely
affecting the Bank or CCB under said amended Section 280G), such payment shall
be reduced or extended over a longer period of time to the extent necessary to
reduce such "excess parachute payment" to zero.
3.3 ALIENABILITY. Neither Executive nor any other beneficiary under
this Agreement shall have the power or right to transfer, assign, anticipate,
hypothecate, mortgage, commute or subject any of the benefits hereunder to
seizure for the payment of any debts, judgments or obligations of Executive or
his beneficiaries. In the event of any attempted assignment or transfer by
Executive or any beneficiary of any benefit hereunder, all of Bank's liabilities
under this Agreement shall terminate.
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ARTICLE IV
BARK'S OBLIGATIONS HEREUNDER
4.1 FUNDING. The Bank reserves the right, at its sole and exclusive
discretion, either to fund the obligations of the Bank undertaken by this
Agreement or to refrain from funding the same, and to determine the extent,
nature and method of such funding. Should the Bank elect to fund this
Agreement, in whole or in part, through the medium of life insurance, or annuity
or both, the Bank shall be the owner and beneficiary of such policies. The Bank
reserves the absolute right, at its sole discretion, to terminate such life
insurance or annuities, as well as any other funding program at any time, in
whole or in part. At no time shall Executive be deemed to have any right, title
or interest in or to any specified asset or assets of the Bank, including but
not limited to any insurance or annuity contract or contracts or the proceeds
therefrom.
4.2 UNSECURED. This Agreement shall not be construed to give
Executive or his beneficiaries any greater rights than those of any other
unsecured creditor of the Bank. Any insurance policy or annuity purchased by
the Bank shall not be considered to be a security for the performance of the
obligations of this Agreement.
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ARTICLE V
EMPLOYMENT; PARTICIPATION IN OTHER PLANS
5.1 NOT AN EMPLOYMENT CONTRACT. Except as provided in Section 3.2(a)
hereof, this Agreement is not an employment contract. Nothing in this Agreement
shall affect in any manner whatsoever the right or power of the Bank, CCB or any
other parent corporation of the Bank, to terminate Executive's employment for
any reason or no reason, with or without cause.
5.2 FULL EFFORTS. During the time in which this Agreement is in
effect, Executive agrees to devote his full time and attention exclusively to
the business and affairs of the Bank, except during vacation, and to use his
best efforts to furnish faithful and satisfactory services to the Bank.
5.3 FRINGE BENEFITS. The benefits provided by this Agreement are
granted by the Bank as a fringe benefit to Executive and are not part of any
salary reduction plan or arrangement deferring any bonus or salary increase.
Executive has no option to take any current payment or bonus in lieu of the
benefits provided hereunder.
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5.4 PARTICIPATION IN OTHER PLANS. Nothing contained in this Agreement
shall be construed to alter, abridge or in any manner affect the rights and
privileges of Executive to participate in and be covered by any pension, profit
sharing, group insurance, bonus, or other similar employee plans which the Bank
may now or hereafter have.
ARTICLE VI
MISCELLANEOUS
6.1 EARLY TERMINATION OF BENEFITS. Notwithstanding any other
provisions of this Agreement, Bank may at any time terminate its obligation to
pay any Retirement Payments, Death Benefits, or Disability Benefits under
Articles I and II hereof, or the unpaid portion of any such benefit, by paying
to Executive or Executive's representative the present value of the unpaid
portion of such benefit calculated in the manner provided under Section 2.2
hereof. Any benefit which is prepaid pursuant to this provision shall be deemed
to be 100% vested for purposes of calculating the amount of such prepayment.
6.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, but
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neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by either of the parties hereto without the prior written
consent of the other party; PROVIDED, HOWEVER, the consent of Executive shall
not be required in the event of a merger or consolidation of Bank (in which the
Bank is not the surviving entity) or a sale of all or substantially all of the
assets of Bank if, in any such transactions, the surviving entity shall (i) have
a net worth immediately following the transaction at least equal to the net
worth of Bank immediately prior to the transaction and (ii) shall assume all of
the obligations of Bank hereunder.
6.3 AMENDMENTS. This Agreement may not be changed orally, but only by
an agreement in writing signed by the party or parties against whom enforcement
of any waiver, change, modification or consent is sought or from whom discharge
is sought.
6.4 WAIVER. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant or agreement contained in this Agreement or any exhibit
hereto. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
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6.5 NOTICES. All notices or other communications required or
permitted hereunder must be in writing and shall be deemed to have been duly
given if delivered personally, by telegram or telex, or mailed, postage prepaid,
by registered or certified first class (return receipt requested) addressed to
the party to be notified. Such notice shall be deemed to have been given as of
the date so delivered if delivered in person, at the time confirmed for delivery
if by telegram or telex, or ninety-six (96) hours after deposit in the mails as
provided above. For purposes of notice, the addresses of the parties hereto,
until changed, as hereinafter provided, shall be as set forth directly below.
Each party shall have the right to change its address to which notice to such
party is to be given by giving written notice thereof to all other parties to
this Agreement.
If to the Bank to: National Bank of Southern California
0000 Xxxxx Xxxxx Xxxxx
P. 0. Xxx 00000
Xxxxx Xxx, XX 00000-0000
Attn: Chief Executive Officer
If to Executive, to: Xxxx X. Xxxxxxxx
6.6 ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
and supersedes all prior oral and written agreements and understandings between
the parties hereto with respect to the subject matter hereof.
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6.7 GOVERNING LAW. This Agreement shall be construed as to both
validity and performance and enforced in accordance with and governed by the
laws of the state of California, without giving effect to the principles of
conflict of laws thereof.
6.8 SEVERABILITY. In the event that any provision of this Agreement
shall be unenforceable or inoperative as a matter of law, the remaining portions
or provisions shall remain in full force and effect.
6.9 COUNTERPARTS. This Agreement shall be executed in two or more
identical counterparts, each of which shall be deemed an original but all of
which shall constitute one in the same instrument.
6.10 CAPTIONS. Captions of the paragraphs of this Agreement are for
reference only and are not to be construed in any way as part of this Agreement.
6.11 ATTORNEYS' FEES. In the event that any party herein commences any
legal or equitable action or other proceeding, including without limitation, an
action for declaratory relief or any other form of relief, or to enforce,
interpret, reform, rescind or in any other manner affect the
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provisions of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees which may be set by the court in the same action,
including any appellate action which may be brought in connection with such
action, or in a separate action brought for that purpose, in addition to any
other relief to which the party may be entitled.
6.12 AGREEMENT TO PERFORM NECESSARY ACTS. Each of the parties hereto
agrees to execute and deliver such other and further documents and to perform
such other acts as may be necessary to effectuate the purposes of this Agreement
including, but not limited to, Executive agrees to sign any documents and
undergo any medical examination or tests which may be necessary for Bank to
acquire a life insurance or annuity policy on Executive's life.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"Bank"
NATIONAL BANK OF SOUTHERN CALIFORNIA
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx, President
and Chief Executive Officer
"Executive"
/s/ Xxxx X. Xxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxx
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XXXX XXXXXXXX
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Accrued Salary
Plan Continuation
Year Liability
-------- ------------
1988 = 1 3,625
2 7,630
3 12,054
4 16,942
5 22,341
6 28,306
7 34,895
8 42,175
9 50,216
10 59,100
11 68,913
12 79,755
13 91,731
14 104,962
15 119,578
16 135,725
17 153,563
18 173,268
19 195,037
20 219,065
21 245,651
22 274,999
23 307,421
24 343,237
25 382,803
26 426,513
EXHIBIT A
