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EXHIBIT 10.19
DIRECTOR SUPPLEMENTAL COMPENSATION BENEFITS AGREEMENT
This Agreement is made and entered into effective as of _____________,
1999 by and between Bank of Xxxxxxxxx, F.S.B. with its principal offices located
in the City of Bakersfield, Xxxx County, California (the "Bank"), and
___________________, an individual residing in the State of California (the
"Director").
R E C I T A L S
WHEREAS, the Director is an member of the Board of Directors of the
Bank and has served in such capacity since [INSERT DATE];
WHEREAS, the Bank desires to establish a compensation benefit for
directors who are not also officers or employees of the Bank in order to attract
and retain individuals with extensive and valuable experience as director; and
WHEREAS, the Director and the Bank wish to specify in writing the terms
and conditions upon which this additional compensatory incentive will be
provided to the Director, or as applicable, to the Director's spouse or
designated beneficiaries, as the case may be.
NOW, THEREFORE, in consideration of the services to be performed by the
Director in the future, as well as the mutual promises and covenants contained
herein, the Director and the Bank agree as follows:
A G R E E M E N T
1. TERMS AND DEFINITIONS.
1.1. ADMINISTRATOR. The Bank shall be the "Administrator" and,
solely for the purposes of ERISA, as defined in subparagraph 1.9 below, the
"fiduciary" of this Agreement where a fiduciary is required by ERISA.
1.2. APPLICABLE PERCENTAGE. The term "Applicable Percentage"
shall mean that percentage listed on Schedule "A" attached hereto which is
adjacent to the number of calendar years which shall have elapsed from the date
of the Director's commencement of service as a member of the Board of Directors
of the Bank 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) provided payments have not yet begun
hereunder, one hundred percent (100%) upon the occurrence of a "Change in
Control" as defined in subparagraph 1.4 below, or the Director's Disability (as
defined in subparagraph 1.6 below); and (ii) notwithstanding subclause (i) of
this subparagraph 1.2, zero percent (0%) in the event the Director takes any
intentional action which prevents the Bank from collecting the proceeds of any
life insurance policy which the Bank may happen to own at the time of the
Director's death
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and of which the Bank is the designated beneficiary. Furthermore,
notwithstanding the foregoing, or anything contained in this Agreement to the
contrary, in the event the Director takes any intentional action which prevents
the Bank from collecting the proceeds of any life insurance policy which the
Bank may happen to own at the time of the Director's death and of which the Bank
is the designated beneficiary: (1) the Director's estate or designated
beneficiary shall no longer be entitled to receive the amounts, if any, payable
under the terms of this Agreement, and (2) the Bank shall have the right to
recover from Director's estate all of the amounts paid to the Director's estate
(with respect to amounts, if any, paid prior to the Director's death or paid to
the Director's estate) or designated beneficiary (with respect to amounts, if
any, paid to the designated beneficiary) pursuant to the terms of this Agreement
prior to and after Director's death.
1.3. BENEFICIARY. The term "beneficiary" or "designated
beneficiary" shall mean the person or persons whom the Director shall designate
in a valid Beneficiary Designation, a copy of which is attached hereto as
Schedule "C," to receive the benefits, if any, as provided hereunder. A
Beneficiary Designation shall be valid only if it is in the form attached hereto
and made a part hereof and received by the Administrator prior to the Director's
death.
1.4. CHANGE IN CONTROL. The term "Change in Control" shall
mean the occurrence of any of the following events with respect to the Bank
(with the term "Bank", for purposes of this Paragraph 1.4, being deemed to
include any parent holding company owning, directly or indirectly, substantially
all of the outstanding voting capital stock of Bank): (i) the consummation of a
merger pursuant to which shares of the Bank's capital stock are converted into
cash, securities or other property (other than a merger of the Bank in which the
holders of the Bank's capital stock immediately prior to the merger have the
same proportionate ownership of the common stock of the surviving corporation
immediately after the merger); (ii) the consummation of any sale or other
transfer of all or substantially all the assets of the Bank; or (iii) any
"person" (as defined in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), which become the "beneficial owner"
(as defined in Rule 13d-3(d) of the Exchange Act), directly or indirectly, of
forty-nine percent (49%) or more of the Bank's outstanding capital stock.
Notwithstanding the foregoing. a "Change of Control" shall not be deemed to
exist as a result of the acquisition of the Bank by merger pursuant to the
Agreement and Plan of Reorganization, dated September 15, 1998, with VIB Corp.
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 terms in any policy of disability
insurance maintained by the Bank for the benefit of directors including the
Director. In the absence of such a policy which extends coverage to the Director
in the event of disability, the terms shall mean the Director suffering a
sickness, accident or injury which, in the judgment of a physician satisfactory
to the Bank, prevents the Director from performing substantially all of the
Director's normal duties for the Bank. As a condition to any benefits, the Bank
may require the Director to submit to such physical or mental evaluations and
tests as the Bank's Board of Directors deems appropriate.
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1.7. DIRECTOR BENEFITS. The term "Director Benefits" shall
mean the benefits determined in accordance with Schedule "B", and reduced or
adjusted to the extent: (i) required under the other provisions of this
Agreement; including but not limited to, Paragraphs 5, 6 and 7 hereof; (ii)
required by reason of the lawful order of any regulatory agency or body having
jurisdiction over the Bank; or (iii) required in order for the Bank 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).
1.8. EFFECTIVE DATE. The term "Effective Date" shall mean the
date first written above.
1.9. ERISA. The term "ERISA" shall mean the Employee
Retirement Income Security Act of 1974, as amended.
1.10. NORMAL RETIREMENT DATE. The term "Normal Retirement
Date" shall mean the Retirement, as defined below, of the Director upon
attainment of age [INSERT RETIREMENT AGE].
1.11. PLAN YEAR. The term "Plan year" shall mean the Bank's
fiscal year.
1.12. RETIREMENT. The term "Retirement" or "Retires" shall
refer to the date which the Director acknowledges in writing to the Bank to be
the last day of service as a member of the Board of Directors of the Bank.
1.13. REMOVAL FOR CAUSE. The term "removal for cause" shall
mean the termination of the Director's service as a member of the Bank's Board
of Directors by reason of any of the following determined in good faith by
disinterested members of the Bank's Board of Directors:
(a) The willful, intentional and material breach or
habitual and continued neglect by the Director of his responsibilities;
(b) The continuous mental or physical incapacity of
the Director, subject to disability rights under this Agreement;
(c) The Director's willful and intentional violation
of any federal banking or securities laws, or of the Bylaws, rules, policies or
resolutions of the Bank, or the rules or regulations of the Federal Deposit
Insurance Corporation, Office of Thrift Supervision, or any other regulatory
agency or governmental authority having jurisdiction over the Bank, which has a
material adverse effect upon the Bank;
(d) The written determination by a state or federal
court, banking agency or other governmental authority having jurisdiction over
the Bank, that the Director (i) is of unsound mind, or (ii) has committed a
gross abuse of authority or discretion with reference to the Bank, or (iii)
otherwise is not suitable to continue to serve as a member of the Board of
Directors of the Bank;
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(e) The Director is convicted of any felony or a
crime involving moral turpitude or willfully and intentionally commits a
fraudulent or dishonest act; or
(f) The Director's willful and intentional
disclosure, without authority, of any secret or confidential information not
otherwise publicly available concerning the Bank or taking any action which the
Bank's Board of Directors determines, in its sole discretion and subject to good
faith, fair dealing and reasonableness, constitutes unfair competition with or
inducement of any customer to breach any contract with the Bank.
2. SCOPE, PURPOSE AND EFFECT.
2.1. CONTRACT OF EMPLOYMENT. Although this Agreement is
intended to provide the Director with an additional incentive to remain to serve
as a member of the Board of Directors of the Bank, this Agreement shall not be
deemed to constitute a contract of employment between the Director and the Bank
nor shall any provision of this Agreement restrict or expand the right of the
Bank to remove or cause the removal of the Director including, without
limitation, by (i) refusal to nominate the Director for election for any
successive term of office as a member of the Board of Directors of the Bank, or
(ii) complying with an order or other directive from a court of competent
jurisdiction or any regulatory authority having jurisdiction over the Bank which
requires the Bank to take action to remove the Director.
2.2. FRINGE BENEFIT. The benefits provided by this Agreement
are granted by the Bank as a fringe benefit to the Director and are not a part
of any salary reduction plan or any arrangement deferring a bonus or a salary
increase. The Director has no option to take any current payments or bonus in
lieu of the benefits provided by this Agreement.
3. DIRECTOR BENEFITS PAYMENTS. If the Director shall continue to serve
as a member of the Board of Directors until the Normal Retirement Date, the Bank
shall pay to the Director the Applicable Percentage of the Retirement Benefit
Payments specified in Schedule B commencing on the Director's Retirement,
payable annually in one (1) installment at the end of each Plan year, and
continuing until the Director's death.
4. PAYMENTS IN THE EVENT OF DISABILITY PRIOR TO RETIREMENT. In the
event the Director becomes Disabled while serving as a member of the Board of
Directors of the Bank at any time after the Effective Date of this Agreement but
prior to Retirement, the Director shall be entitled to be paid the Applicable
Percentage of the Retirement Benefit Payments specified in Schedule B. The
Retirement Benefit Payments shall commence on the Director becoming Disabled,
payable annually in one (1) installment at the end of each Plan Year, and
continue until the director's death.
5. PAYMENTS IN THE EVENT DIRECTOR IS TERMINATED PRIOR TO RETIREMENT. As
indicated in subparagraph 2.1 above, the Bank reserves the right to remove or
cause the removal of the Director under certain circumstances, at any time prior
to the Director's Retirement. In the event that the service of the Director
shall be terminated, other than by reason of death, Disability or Retirement,
prior to the Director's Normal Retirement Date, then this Agreement
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shall terminate upon the date of such termination; provided, however, that the
Director shall be entitled to the following benefits as may be applicable
depending upon the circumstances surrounding the Director's termination:
5.1. TERMINATION WITHOUT CAUSE. If the Director's service as a
member of the Board of Directors of the Bank is terminated for reasons other
than as specified in paragraph 5.3 below, and such termination is not subject to
the provisions of subparagraph 5.4 below, the Director shall be entitled to be
paid the Applicable Percentage of the Retirement Benefit Payments. The
Retirement Benefit Payments shall commence on the termination of the Director's
service, payable annually in one (1) installment at the end of each Plan Year,
and continue until the Director's death.
5.2 VOLUNTARY TERMINATION BY THE DIRECTOR. If the Director's
service on the Board of Directors is terminated by voluntary resignation on a
date when the Applicable Percentage is less than on hundred percent (100%), and
such resignation is not subject to the provisions of subparagraph 5.4 below, the
Director 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 Director by the Bank pursuant to the
terms of this Agreement. If the Applicable Percentage is one hundred percent
(100%) on the date of such voluntary resignation, the Director shall be paid the
Applicable Percentage of the Retirement Benefit Payments. The Retirement Benefit
Payments shall commence on the termination of the Director's service, payable
annually in one (1) installment at the end of each Plan Year, and continue until
the Director's death.
5.3. TERMINATION BY REMOVAL FOR CAUSE. The Director agrees
that if his service as a member of the Board of Directors of the Bank is
terminated by "removal for cause," as defined in subparagraph 1.13 of this
Agreement, he shall forfeit all Director Benefits under this Agreement.
5.4. TERMINATION BY THE BANK ON ACCOUNT OF OR AFTER A CHANGE
IN CONTROL. In the event the Director's service as a member of the Board of
Directors of the Bank is terminated in conjunction with, or by reason of, a
"Change in Control" (as defined in subparagraph 1.4 above) the Director shall be
entitled to be paid the Applicable Percentage of the Retirement Benefit
Payments. The Retirement Benefit Payments shall commence on the termination of
the Director's service, payable annually in one (1) installment at the end of
each Plan year, and continue until the Director's death.
6. SECTION 280G BENEFITS ADJUSTMENT. The Director acknowledges and
agrees that the parties have entered into this Agreement based upon certain
financial and tax accounting assumptions. Accordingly, with full knowledge of
the potential consequences the director agrees that, notwithstanding anything
contained herein to the contrary, in the event that any payment or benefit
received or to be received by the Director, whether payable pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the
Bank (together with the Director Benefits, the "Total Payments"), will not be
deductible (in whole or in part) as a result of Code Section 280G or other
applicable provisions of the Code, the Total Payments shall be reduced until no
portion of the Total Payments is nondeductible as a result of Section 280G or
such other applicable provisions of the Code. For purposes of this limitations:
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(a) No portion of the Total Payments, the receipt or
enjoyment of which the Director shall have effectively waived in writing prior
to the date of payment of any future Director Benefits 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 Bank and
acceptable to the Director, does not constitute a "parachute payment" within the
meaning of Section 280 of the Code;
(c) Any reduction of the total Payments shall be
applied to reduce any payment or benefit received or to be received by the
Director pursuant to the terms of this Agreement and any other plan, arrangement
or agreement with the Bank in order determined by mutual agreement of the Bank
and Director;
(d) Future payments shall be reduced only to the
extent necessary so that Total Payments other than those referred to in clauses
(a) or (b) above in their entirely 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
(e) The value of any non-cash benefit or any deferred
payment or benefit included in the Total Payments shall be determined by
independent auditors selected by the Bank and acceptable to the Director in
accordance with the principles of Section 280G of the Code.
7. RIGHT TO DETERMINE FUNDING METHODS. The Bank 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 Director or as applicable the Director's spouse or beneficiaries
under the terms of this Agreement. In the event that the Bank elects to fund
this Agreement, in whole or in part, through the use of life insurance or
annuities, or both, the Bank shall determine the ownership and beneficial
interests of any such policy of life insurance or annuity. The Bank 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, whole or in part. Consistent with Paragraph 9 below, neither the
Director, the Director's spouse nor the Director's beneficiaries shall have any
right, title or interest in or to any funding source or amount utilized by the
Bank pursuant to this Agreement, and any such funding source or amount shall not
constitute security for the performance of the Bank's obligations pursuant to
this Agreement. In connection with the foregoing, the Director agrees to execute
such documents and undergo such medical examinations or tests which the Bank may
request and which may be reasonably necessary to facilitate any funding for this
Agreement including, without limitation, the Bank's acquisition of any policy of
insurance or annuity. Furthermore, a refusal by the Director 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 Director, or as applicable, the Director's spouse and beneficiaries of any
and all rights to payment hereunder.
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8. CLAIMS PROCEDURE. The Bank 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 Bank shall make all determinations
as to the rights to benefits under this Agreement. Any decision by the Bank
denying a claim by the Director, the Director's spouse, or the beneficiaries,
for benefits under this Agreement shall be stated in writing and delivered or
mailed, via registered or certified mail, to the Director, the Director's spouse
or the Director's beneficiaries, as the case may be. Such decision shall set
forth the specific reasons for the denial of a claim. In addition, the Bank
shall provide the Director, or as applicable, the Director's spouse or
beneficiaries with a reasonable opportunity for a full and fair review of the
decision denying such claim.
9. STATUS AS AN UNSECURED GENERAL CREDITOR. Notwithstanding anything
contained herein to the contrary: (i) neither the Director, the Director's
spouse or beneficiaries shall have any legal or equitable rights, interests, or
claims in or to any specific property or assets of the Bank as a result of this
Agreement; (ii) none of the Bank's assets shall be held in or under any trust
for the benefit of the Director, the Director's spouse or held in any way as
security for the fulfillment of the obligations of the Bank under this
Agreement; (iii) all of the Bank's assets shall be and remain the general
unpledged and unrestricted assets of the Bank; (iv) the Bank's obligation under
this Agreement shall be that of an unfunded and unsecured promise by the Bank to
pay money in the future; and (v) the Director, the Director's spouse and
beneficiaries shall be unsecured general creditors with respect to any benefits
which may be payable under the terms of this Agreement.
Notwithstanding subparagraphs (i) through (v) above, the Bank and the
Director acknowledge and agree that, in the event of a Change in Control, and at
the written request of the Director, or in the Bank's discretion if the
Director's does not so request and the Bank nonetheless deems it appropriate,
the Bank shall establish, not later than the effective date of the Change in
Control, a Rabbi Trust or multiple Rabbi Trusts (the "Trust" or "Trusts") upon
such terms and conditions as the Bank in its sole discretion, deems appropriate
and in compliance with applicable provisions of the Code, in order to permit the
Bank to make contributions and/or transfer assets to the Trust or Trusts to
discharge its obligations pursuant to this Agreement. The principal of the Trust
or Trusts and any earnings thereon shall be held separate and apart from other
funds of the Bank to be used exclusively for discharge of the Bank's obligations
pursuant to this Agreement and shall continue to be subject to the claims of the
Bank's general creditors until paid to the Director or as applicable, the
Director's spouse or beneficiaries in such manner and at such times as specified
in this Agreement.
10. DISCRETION OF BOARD TO ACCELERATE PAYOUT. Notwithstanding any of
the other provisions of this Agreement, the Board of Directors of the Bank may,
if determined in its sole and absolute discretion to be appropriate, accelerate
the payment of the amounts due under the terms of this Agreement, provided that
Director (or as applicable, the Director's spouse or beneficiaries): (i)
consents to the revised payout terms determined appropriate by the Bank's Board
of Directors; and (ii) does not negotiate or in any way influence the terms of
proposed altered/accelerated payout (said decision to be made solely by the
Bank's Board of Directors and offered to the Director [or the Director's spouse
or beneficiaries] on a "take it or leave it basis").
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11. MISCELLANEOUS.
11.1. OPPORTUNITY TO CONSULT WITH INDEPENDENT ADVISORS. The
Director acknowledges that he has been afforded the opportunity to consult with
independent advisors of his choosing including, without limitation, accountants
or tax advisors and counsel regarding both the benefits granted to him under the
terms of this Agreement and the (i) terms and conditions which may affect the
Director's right to these benefits and (ii) personal tax effects of such
benefits including, without limitation, the effects of any federal or state
taxes, Section 280G of the Code, and any other taxes, costs, expenses or
liabilities whatsoever related to such benefits, which in any of the foregoing
instances the Director acknowledges and agrees shall be the sole responsibility
of the Director notwithstanding any other term or provision of this Agreement.
The Director further acknowledges and agrees that the Bank shall have no
liability whatsoever related to any such personal tax effects or other personal
costs, expenses, or liabilities applicable to the Director and further
specifically waives any right for himself or herself, and his or her heirs,
beneficiaries, legal representatives, agents, successors and assigns to claim or
assert liability on the part of the Bank related to the matters described above
in this subparagraph 11.1. The Director further acknowledges and agrees that he
has read, understands and consents to all of the terms and conditions of this
Agreement, and that the 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 Bank 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"),
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"), located in San Francisco, 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 Bakersfield, California, unless otherwise agreed
to by the parties.
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11.3. ATTORNEY'S 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 non-prevailing 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
Director or the Bank 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 part 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 Bank: Bank of Stockdale, F.S.B.
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx Xxxxxxx
President
If to the Director: ___________________________
___________________________
___________________________
11.5. ASSIGNMENT. Neither the Director, or as applicable, the
Director's spouse or beneficiaries, 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 the Director, or the Director's spouse or
beneficiaries, 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 Director, the Director's spouse, or beneficiaries; 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 Bank shall thereupon have no further liability hereunder.
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11.6. BINDING EFFECT/MERGER OR REORGANIZATION. This Agreement
shall be binding upon and insure to the benefit of the Director and the Bank
and, as applicable, their respective heirs, beneficiaries, legal
representatives, agents, successors and assigns. Accordingly, the Bank 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 Bank under this Agreement. Upon the
occurrence of such event, the term "Bank" as used in this Agreement shall be
deemed to refer to such surviving or successor firm, person, entity or
corporation.
11.7. NON-WAIVER. 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 terms(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.
12. 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.
12.1. 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.
12.2. 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.
12.3. 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 Thrift Supervision and the Federal
Deposit Insurance Corporation, shall govern the validity, interpretation,
construction and effect of this Agreement.
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12.4. WAIVER OF PRIOR PLAN BENEFIT. To the extent that the
Director is a participant in any other supplemental benefit plan provided by the
Bank which affords the Director benefits in the event of the Director's
retirement, death, disability, termination or a change in control, it is an
express condition precedent to the effectiveness of this Agreement that the
Director execute and deliver the Waiver of Prior Plan Benefit attached as
Schedule "D" to this Agreement.
IN WITNESS WHEREOF, the Bank and the Director have executed this
Agreement on the date first above written in the City of Bakersfield, Xxxx
County, California.
BANK DIRECTOR
BANK OF XXXXXXXXX, F.S.B.
By: ______________________________ ______________________________
Xx X. Xxxxxxx,
President and Chief Executive Officer
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SCHEDULE A
CALENDAR YEAR APPLICABLE PERCENTAGE
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___________, 199__ to December 31, 199__ 100%
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SCHEDULE B
DIRECTOR BENEFITS
Retirement Benefit Payments:
The Bank shall pay to the Director the Applicable Percentage of Seven Thousand
Dollars ($7,000.00) in accordance with the terms of the Agreement.
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SCHEDULE C
BENEFICIARY DESIGNATION
To the Administrator of the Bank of Xxxxxxxxx Director Supplemental
Compensation Benefits Agreement:
Pursuant to the Provisions of my Director Supplemental Compensation
Benefits Agreement with Bank of Xxxxxxxxx, 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:
---------------------- -------------------------- ---------------------
Name Address Relationship
SECONDARY (CONTINGENT)
BENEFICIARY:
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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 Director Supplemental Compensation Benefits
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
Director Supplemental Compensation Benefits Agreement shall be payable to the
personal representative of the estate of said beneficiary who survived me but
died prior to receiving the total benefit provided by my Director Supplemental
Compensation Benefits Agreement.
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15
Dated: ____________________, 1999 ______________________________
CONSENT OF THE DIRECTOR'S SPOUSE
TO THE ABOVE BENEFICIARY DESIGNATION:
I, _______________________, being the spouse of _________________,
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 Director Supplemental
Compensation Benefits Agreement entered into by my spouse effective
________________. 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 Director Supplemental Compensation Benefits Agreement and in which I may
have a marital property interest.
Dated: ________________, 1999.
_________________________________
Type/Print Name
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16
SCHEDULE D
WAIVER OF PRIOR PLAN BENEFITS
In consideration for the Director Benefits made available to the
Director by this Director Supplemental Compensation Benefits Agreement (the
"Agreement"), the Director acknowledges and agrees as follows:
(a) The Director is a party to that certain Bank of Xxxxxxxxx
Amended and Restated Deferred Fee Agreement made with the Bank dated
____________, 19__. Such Agreement, and all amendments, modifications,
interpretations and understandings thereof or with respect thereto are referred
to as the "Prior Plan Agreement".
(b) This Agreement and the Director Benefits hereunder are
provided as a substitute for the Death Benefits provided by the Prior Plan
Agreement. The Death Benefits under the Prior Plan Agreement are hereby
terminated effective as of the Effective Date of this Agreement.
(c) The Director hereby waives and relinquishes for himself or
herself, and his or her heirs, beneficiaries, legal representatives, agents,
successors and assigns, any and all right, entitlement and interest in and to
the Death Benefits that the Director has or may have pursuant to the Prior Plan
Agreement, and accepts the Director Benefits afforded by this Agreement in full
and complete substitution for the Death Benefits otherwise provided by the Prior
Plan Agreement.
(d) Without limiting the scope and effect of subparagraph 11.1
of the Agreement, the Director (i) has had an opportunity to consult with
advisors of the Director's own choice in determining to enter into this
Agreement and this Waiver, (ii) understands that the effect of this Waiver is to
terminate, waive and relinquish forever all rights, entitlements and interests
that the Director has or may have to Death Benefits under the Prior Plan
Agreement and the benefits thereunder as a condition to receiving the Director
Benefits under this Agreement; and (iii) Director is entering into this
Agreement and this Waiver voluntarily and will full appreciate of the effect of
doing so.
Dated: _______________, 1999 ______________________________
I consent to and agree to be bound by the foregoing Waiver:
______________________________
