EXHIBIT 10.4
EXECUTIVE SALARY CONTINUATION AGREEMENT
This Agreement is made and entered into this 22nd day of March, 1995, by and
between The Bank of Hemet, a banking corporation organized under the laws of the
State of California (the "Employer"), and Xxxxx X. Xxxxx, an individual residing
in the State of California (hereinafter referred to as the "Executive").
RECITALS
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; and
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;
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:
AGREEMENT
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 Ten Thousand Dollars ($110,000) multiplied by the Applicable
Percentage (defined below) and then reduced to the extent required: (i) under
the other provisions of this Agreement; (ii) by reason of the lawful order of
any regulatory agency or body having jurisdiction over the Employer; and (iii)
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 as an employee for a period of 365
days) which have elapsed starting from the Effective Date of this Agreement and
ending on the date the Executive's employment with the Employer terminates for
purposes of this Agreement. In the event the Executive's employment with the
Employer is terminated other than by reason of death, disability, termination
for cause or Retirement on the part of the Executive, the Executive shall be
deemed for purposes of determining the number of complete years to have
completed a year of service in its entirety for any partial year of service
after the last anniversary date of the Effective Date during which the
Executive's employment is terminated, provided that in no event shall the
Executive be deemed to have completed a year of service for any partial year if
the partial year occurs prior to the anniversary date of this Agreement.
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. THE CODE. The "Code" shall mean the Internal Revenue Code of 1986,
as amended (the "Code").
1.6. 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. 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.
1.7. EFFECTIVE DATE. The term "Effective Date" shall mean the date upon
which this Agreement was entered into by the parties, as first written above.
1.8. ERISA. The term "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
1.9. PLAN YEAR. The term "Plan Year" shall mean the Employer's calendar
year.
1.10. RETIREMENT. The term "Retirement" or "Retires" shall refer to the
date which shall be no sooner than the anniversary date of this Agreement and
which the Executive acknowledges in writing to the Employer to be the last day
he will provide any significant personal services, whether as an employee,
director or independent consultant or contractor, to the Employer. 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.
1.11. 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.
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 Retirement, the Executive shall be
entitled to be paid the Annual Benefit, as defined above, for a period of
fifteen (15) years, in One Hundred Eighty (180) equal monthly installments, 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) monthly payments described in paragraph 3.1 above, the
Employer will make the remaining monthly payments, undiminished and on the same
schedule as if the Executive had not died, to the Executive's designated
beneficiary. 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
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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, the Employer agrees to pay the
Annual Benefit for a period of fifteen (15) years in One Hundred Eighty (180)
equal monthly installments, with each installment to be paid on the first of
each month beginning with the month following the Executive's death, to the
Executive's designated beneficiary. The Annual Benefit shall be determined with
the Applicable Percentage that corresponds to the number of years of service the
Executive had with the Employer as set forth on Schedule "A".
If a valid Beneficiary Designation is not in effect, then the amounts due to the
Executive under the terms of this Agreement shall be paid to the Executive's
Surviving Spouse. If the Executive leaves no Surviving Spouse, the 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.
4.2. 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) continue to be treated during such period of Disability as being
gainfully employed by the Employer but shall not add applicable years of service
for the purpose of determining the Annual Benefit; and (ii) be entitled to be
paid the Annual Benefit, as set forth on Schedule "A", for fifteen (15) years,
as determined by the applicable years of service at the time of disability, as
defined above, in One Hundred Eighty (180) equal monthly installments, 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-five
(65) 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 does not, at such time, return to and thereafter
fulfill the responsibilities associated with the employment position held with
the Employer prior to becoming Disabled by reason of such Disability continuing.
Notwithstanding the foregoing, in the event the Executive should die while
actively or gainfully employed by the Employer at any time after the Effective
Date of this Agreement and prior to attaining the age of sixty-five (65) years
of age, the payments provided in Paragraph 4.1 shall be paid in lieu of the
payments provided in this Paragraph 4.2, provided that the Executive or his
legal representative shall have not elected to take the benefits provided by
Paragraph 5 and payments provided for in this Paragraph 4.2 have not commenced.
5. PAYMENTS IN THE EVENT EMPLOYMENT IS TERMINATED BY REASON OTHER THAN
DEATH, DISABILITY OR RETIREMENT.
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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, for any reason, including voluntary termination and termination with
or without cause, but other than by reason of (i) Disability except as provided
in Paragraph 4.2, (ii) death, or (iii) Retirement, the Executive or his legal
representative shall be entitled to be paid the Annual Benefit, as set forth in
Schedule "A" for a period of fifteen (15) years, as determined by the applicable
years of service at the time of the Executive's termination of employment with
the Employer, in One Hundred Eighty (180) equal monthly installments, with each
installment to be paid on the first day of each month, beginning with the month
following the month in which the Executive terminates employment and attains
sixty-five (65) years of age or the month following the Executive's death,
whichever occurs first.
6. RIGHT OF THE EMPLOYER TO PAY A LUMP SUM.
The Employer shall at its sole and absolute discretion have the right to pay in
a lump sum the then present value using a discount rate that is to be mutually
agreed upon between the Employer and the Executive or the Executive's
beneficiary of all payments vested and due the Executive or the Executive's
beneficiary pursuant to this Agreement.
7. NO OWNERSHIP RIGHTS TO THE EMPLOYER'S ASSETS.
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 ("Benefits"). The rights of the Executive or any beneficiary of the
Executive under this Agreement shall be solely those of an unsecured creditor of
the Employer.
In the event that the Employer, in its sole and absolute discretion, elects to
acquire an insurance policy, an annuity or any other asset to recoup the costs
or any portion thereof of the Benefits, then such insurance policy, annuity or
other asset shall not be deemed to be held under any trust for the benefit of
the Executive or his beneficiaries or to be security for the performance of the
obligations of the Employer under this Agreement, but shall be, and remain, a
general unpledged, unrestricted asset of the Employer. The Executive and his
beneficiaries shall have no rights whatsoever with respect to, or any claim
against, any such insurance policy, annuity or other asset. In connection with
the Employer electing to acquire any such insurance policy or annuity, the
Executive agrees to cooperate to facilitate such acquisition, and pursuant
thereto shall execute such documents and undergo such medical examinations or
tests as the Employer may reasonably request.
8. 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
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this 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.
9. STATUS OF 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 beneficiary 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
beneficiary shall be unsecured general creditors with respect to any benefits
which may be payable under the terms of this Agreement.
10. COVENANT NOT TO INTERFERE.
The Executive agrees not to take 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.
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 000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxx, in Orange, 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
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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 0000 Xxxx Xxxxxx, in Irvine, California, shall conduct the
binding arbitration referred to in this Paragraph. Notice of the 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 Hemet, 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:
THE BANK OF HEMET
0000 XXXX XXXXXXX XXXXXX
XXXXX, XXXXXXXXXX 00000
ATTENTION: XXXX X. XXXXXXXXX
CHAIRMAN OF THE BOARD
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IF TO THE EXECUTIVE:
XXXXX X. XXXXX
000 XXXXXXX XXX
XXXXXX XXXXX, XXXXXXXXXX 00000
11.5. ASSIGNMENT. Neither the Executive, the Executive's spouse, nor any
other beneficiary under this Agreement shall have any power or right to
transfer, assign, 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.
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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.
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: (i) the California Superintendent of Banks; (ii) the Federal
Deposit Insurance Corporation; (iii) the Board of Governors of Federal Reserve
System; or (iv) any other regulatory agency or governmental authority having
jurisdiction over the Employer, 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 Hemet, Riverside County,
California.
THE BANK OF HEMET XXXXX X. XXXXX
"EMPLOYER" "EXECUTIVE"
/s/ Xxxx X. XxXxxxxxx /s/ Xxxxx X. Xxxxx
Chairman of the Board
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SCHEDULE A
NUMBER OF COMPLETE
YEARS OF SERVICE APPLICABLE
WHICH HAVE ELAPSED PERCENTAGE
------------------ ----------
1 or more years 100%
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SCHEDULE B
BENEFICIARY DESIGNATION
TO: THE ADMINISTRATOR OF
THE BANK OF HEMET
EXECUTIVE SALARY CONTINUATION AGREEMENT
Pursuant to the provisions of my Executive Salary Continuation Agreement with
The Bank of Hemet 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:
NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE
AND THE EXACT DATE OF THE TRUST AGREEMENT.
IN THE EVENT THE PRIMARY BENEFICIARY IS NOT THE SPOUSE OF THE EXECUTIVE, THE
SPOUSE OF THE EXECUTIVE WILL NEED TO SIGN THE SPOUSAL CONSENT BELOW AND SUCH
SIGNATURE MUST BE NOTARIZED.
PRIMARY BENEFICIARY:
M. Xxxxx Xxxxx 440 Emerald Bay Laguna Beach Wife
-------------- ---------------------------- ----
Name Address Relationship
SECONDARY (CONTINGENT) BENEFICIARY:
------------------- ------------------ ------------------
Name Address Relationship
THE RIGHT TO REVOKE OR CHANGE ANY BENEFICIARY DESIGNATION IS HEREBY RESERVED.
ANY PRIOR DESIGNATION OF PRIMARY BENEFICIARIES AND SECONDARY BENEFICIARIES IS
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 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 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 Executive Salary Continuation Agreement.
XXXXX X. XXXXX
"EXECUTIVE"
Dated: 3/22/95 /s/ Xxxxx X. Xxxxx
-------------- -------------------------------------
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