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EXHIBIT 10.14
EXECUTIVE SALARY CONTINUATION AGREEMENT
This Agreement is made and entered into effective as of the (1st) day
of January, 1996, by and between Bank of Salinas, a bank chartered under the
laws of the State of California (the "Employer"), and , 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
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 _______ Thousand Dollars ($_,000.00) multiplied by the Applicable
Percentage
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 Employer for a period of
365 days) which have elapsed starting from the Effective Date of this Agreement
and ending on the date payments are to first begin under the terms of this
Agreement. Notwithstanding the foregoing or the percentages set forth on
Schedule "A," but subject to all other terms and conditions set forth herein,
the "Applicable Percentage" shall be: (i) provided payments have not yet begun
hereunder, one hundred percent (100%) upon the occurrence of a "change of
control" as defined in subparagraph 1.5 below or upon Executive's death; and
(ii) notwithstanding subclause (i) of this Paragraph, zero percent (0%) in the
event Executive takes
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any action which prevents Employer from collecting the proceeds of any life
insurance policy which Employer may happen to own at the time of Executive's
death and of which Employer is the designated beneficiary. Furthermore,
notwithstanding anything contained herein to the contrary, in the event
Executive takes any action which prevents Employer from collecting the proceeds
of any life insurance policy which Employer may happen to own at the time of
Executive's death and of which Employer is the designated beneficiary,
Executive's estate or designated beneficiary shall no longer be entitled to
receive any of the amounts payable under the terms of this Agreement.
1.4 Beneficiary. The term "beneficiary" or "designated
beneficiary" shall mean the person or persons whom Executive shall designate in
a valid Beneficiary Designation, a copy of which is attached hereto as Exhibit
"C," 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 Executive's death.
1.5 Change in Control. The term "Change in Control" shall
mean the occurrence of the any of the following events with respect to Employer
(with the term "Employer" being defined, when determining whether a "Change in
Control" has occurred, to include Bank of Salinas' current holding company,
Central Coast Bancorp, a California corporation, such that a "Change in
Control" of Central Coast Bancorp will be deemed to constitute a "Change in
Control" of Employer): (i) a change in control of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or m response to any other form or report to the regulatory
agencies or governmental authorities having jurisdiction over Employer or any
stock exchange on which Employer's shares are listed which requires the
reporting of a change in control; (ii) any merger, consolidation or
reorganization of Employer in which Employer does not survive; (iii) any sale,
lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) of any assets of Employer having an
aggregate fair market value of fifty percent (50%) of the total value of the
assets of Employer, reflected in the most recent balance sheet of Employer;
(iv) a transaction whereby any "person" (as such term is used in the Exchange
Act or any individual, corporation, partnership, trust or any other entity)
becomes the beneficial owner, directly or indirectly, of securities of Employer
representing twenty-five percent (25%) or more of the combined voting power of
Employer's then outstanding securities; or (v) a situation where, in any
one-year period, individuals who at the beginning of such period constitute the
Board of Directors of Employer cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for election by
Employer's shareholders, of each new director is approved by a vote of at least
three-quarters (3/4) of the directors then still in office who were directors
at the beginning of the period.
1.6 The Code. The "Code" shall mean the Internal Revenue
Code of 1986, as amended (the "Code").
1.7 Disability/Disabled. The term "Disability" or
"Disabled)' shall have the same meaning given such term in the principal
disability insurance policy covering Executive, which is incorporated herein by
reference to the limited extent thereof. In the event 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 Executive
from adequately performing the regular
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employment duties. The determination of whether Executive is Disabled shall be
made by an independent physician selected by mutual agreement of the parties.
1.8 Early Retirement Date. The term "Early Retirement
Date" shall mean the Retirement (as defined below) of Executive on a date which
occurs prior to Executive attaining sixty-three (63) years of age but after
Executive has attained fifty-nine (59) years of age.
1.9 Effective Date. The term "Effective Date" shall mean
the date upon which this Agreement was entered into by the parties, as first
written above.
1.10 ERISA. The term "ERISA" shall mean the Employee
Retirement Income Security Act of 1974, as amended
1.11 Plan Year. The term "Plan Year" shall mean Employer's
fiscal year.
1.12 Retirement. The term "Retirement" or "Retires" shall
refer to the date which Executive acknowledges in writing to Employer to be the
last day he will provide any significant personal services, whether as an
employee or independent consultant or contractor, to Employer or to, for, or on
behalf of, any other business entity conducting, performing or making available
to any person or entity banking or other financial services of any kind. For
purposes of this Agreement, the phrase "significant personal services" shall
mean more than ten (10) hours of personal services rendered to one or more
individuals or entities in any thirty (30) day period.
1.13 Schedule B Amount. The term "Schedule B Amount" shall
mean dollar amount set forth on Schedule B attached hereto corresponding to the
number of complete years (i.e., separate twelve [12] month periods) which have
elapsed between the Effective Date hereof and the date on which the event
triggering or fixing Executive's right to payments equal to the Schedule B
Amount. Notwithstanding the foregoing or anything contained herein to the
contrary, the Schedule B Amount shall be limited or reduced to the extent: (i)
required under the other provisions of this Agreement, including, but not
limited to, Paragraphs 5, 7 and 8 hereof; (ii) required by reason of the lawful
order of any regulatory agency or body having jurisdiction over Employer; and
(iii) required in order for Employer to ensure proper compliance 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). Furthermore,
notwithstanding the foregoing, or anything contained herein to the contrary, in
the event Executive takes any action which prevents Employer from collecting
the proceeds of any life insurance policy which Employer may happen to own at
the time of Executive's death and of which Employer is the designated
beneficiary, Executive's estate or designated beneficiary shall no longer be
entitled to receive any payments hereunder.
1.14 Surviving Spouse. The term "Surviving Spouse" shall
mean the person, if any, who shall be legally married to Executive on the date
of Executive's death.
1.15 Termination for Cause. The term "Termination for
Cause" shall mean termination of the employment of Executive by reason of any
of the following:
(a) A termination "for cause" as this term may be
defined in any written employment agreement entered into by and between
Employer and Executive;
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(b) The willful breach of duty by Executive in
the course of his employment;
(c) The habitual neglect by Executive of his
employment responsibilities and duties;
(d) Executive's deliberate violation of any state
or federal banking or securities laws, or of the Bylaws, rules, policies or
resolutions of Employer, or of the rules or regulations of: (i) the Office of
the California Superintendent of Banks; (ii) the Federal Deposit Insurance
Corporation; or (iii) any other regulatory agency or governmental authority
having jurisdiction over Employer;
(e) The determination by a state or federal banking
agency or other governmental authority having jurisdiction over Employer that
Executive is not suitable to act in the capacity for which he is employed by
Employer;
(f) Executive is convicted of any felony or a
crime involving moral turpitude or a fraudulent or dishonest act; or
(g) Executive discloses without authority any
secret or confidential information not otherwise publicly available concerning
Employer or takes any action which Employer's Board of Directors determines, in
its sole discretion and subject to good faith, fair dealing and reasonableness,
constitutes unfair competition with or induces any customer to breach any
contract with Employer.
2. Scope. Purpose and Effect.
2.1 Not a Contract of Employment. Although this Agreement
is intended to provide Executive with an additional incentive to remain in the
employ of Employer, this Agreement is not, and shall not be deemed to
constitute, a contract of employment between Executive and Employer, nor shall
any provision of this Agreement restrict or expand the right of Employer to
terminate Executive's employment. This Agreement shall have no impact or effect
upon any separate written Employment Agreement which Executive may have with
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 Employer as a fringe benefit to Executive and are not
a part of any salary reduction plan or any arrangement deferring a bonus or a
salary increase. 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 Executive shall remain
in the continuous employment of Employer until attaining sixty-three (63) years
of age, and provided an event triggering payments under the terms of this
Agreement has not yet occurred, Executive shall be
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entitled to be paid the Annual Benefit, as defined above, in equal monthly
installments, for a period of fifteen (15) years (One Hundred Eighty (180)
months), with each installment to be paid on the first day of each month,
beginning with the month following the month in which Executive Retires or upon
such later date as may be mutually agreed upon by Executive and Employer in
advance of said Retirement date. At Employer's sole and absolute discretion,
Employer may increase the Annual Benefit as and when Employer determines the
same to be appropriate in order to reflect a substantial change m the cost of
living. Notwithstanding anything contained herein to the contrary, Employer
shall have no obligation hereunder to make any such cost-of-living adjustment.
3.2 Payments in the Event of Death After Retirement.
Employer agrees that if Executive Retires and begins to receive payments
pursuant to Paragraph 3.1 hereof, but shall die before receiving all of the One
Hundred Eighty (180) monthly payments to which he is entitled, Employer will
continue to make such monthly payments to the Executive's designated
beneficiary for the remaining period. If a valid Beneficiary Designation is not
in effect, then the remaining amounts due to Executive under the term of this
Agreement shall be paid to Executive's Surviving Spouse. If Executive leaves no
Surviving Spouse, the remaining amounts due to Executive under the terms of
this Agreement shall be paid to the duly qualified personal representative,
executor or administrator of 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.
Provided an event triggering payments under the terms of this Agreement has not
yet occurred, and Executive dies while actively employed by Employer at any
time after the Effective Date of this Agreement, but prior to Retirement,
Employer agrees to pay the Annual Benefit to Executive's designated beneficiary
in equal monthly installments, for a period of fifteen (15) years (One Hundred
Eighty (180) months). If a valid Beneficiary Designation is not in effect, then
the remaining amounts due to Executive under the term of this Agreement shall
be paid to Executive's Surviving Spouse. If Executive leaves no Surviving
Spouse, the remaining amounts due to Executive under the terms of this
Agreement shall be paid to the duly qualified personal representative, executor
or administrator of Executive's estate. Each installment shall be paid on the
first day of each month, beginning with the month following the month in which
Executive's death occurs.
4.2 Payments in the Event of Disability Prior to
Retirement. In the event Executive becomes Disabled while actively employed by
Employer at any time after the date of this Agreement but prior to Retirement,
and provided an event triggering payments under the terms of this Agreement has
not yet occurred, Executive (or Executive's designated beneficiary, or
Executive's estate if no designated beneficiary has been selected, upon
Executive's death) shall be entitled to the Schedule B Amount, as defined
above, in equal monthly installments, for a period of fifteen (15) years (One
Hundred Eighty (180) months/installments), with payments thereunder to begin in
the month following the month in which Executive attains sixty-three (63) years
of age or, if earlier, the month following the month in which Executive dies.
5. Payments in the Event Employment Is Terminated Prior to Retirement. As
indicated in Paragraph 2 above, 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 Executive's
Retirement. In the event that the employment of Executive shall be terminated,
other than by reason of Disability, death or Retirement, prior to
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Executive's attaining sixty-three (63) years of age, then this Agreement shall
terminate upon the date of such termination of employment; provided, however,
that Executive shall be entitled to the following benefits as may be applicable
depending upon the circumstances surrounding Executive's termination:
5.1 Termination Without Cause. If Executive's employment
is terminated by Employer without cause, and such termination is not subject to
the provisions of Paragraph 5.4 below, Executive (or Executive's designated
beneficiary, or Executive's estate if no designated beneficiary has been
selected, upon Executive's death) shall be entitled to be paid the Annual
Benefit, as defined above, in equal monthly installments, for a period of
fifteen (15) years (One Hundred Eighty (180) months), with each installment to
be paid on the first day of each month, beginning with the month following the
month in which Executive is terminated without cause or upon such later date as
may be mutually agreed upon by Executive and Employer in advance of the
effective date of Executive's termination.
5.2 Voluntary Termination by Executive. If Executive
voluntarily terminates his employment with Employer (other than by reason of
death, Disability or Retirement), and such termination is not subject to the
provisions of Paragraph 5.4 below, (i) Executive (or Executive's designated
beneficiary, or Executive's estate if no designated beneficiary has been
selected, upon Executive's death) shall have no right to be paid any of the
amounts which would otherwise be due or paid to Executive by Employer pursuant
to the terms of this Agreement, and (ii) Employer shall have no obligation to
make any of the payments described herein, and shall not be, and is not, in any
way legally bound, responsible or liable to Executive (or Executive's
designated beneficiary, or Executive's estate if no designated beneficiary has
been selected) with respect to the contingent benefits described in this
Agreement.
5.3 Termination for Cause. Executive agrees that if his
employment with Employer is terminated "for cause," as defined in subparagraph
1.15 of this Agreement, he shall have no right to be paid any of the amounts
which would otherwise be due or paid to Executive by Employer pursuant to the
terms of this Agreement, and (ii) Employer shall have no obligation to make any
of the payments described herein, and shall not be, and is not, in any way
legally bound, responsible or liable to Executive (or Executive's designated
beneficiary, or Executive's estate if no designated beneficiary has been
selected) with respect to the contingent benefits described in this Agreement.
5.4 Termination by Employer on Account of or After a
Change in Control. In the event: (i) Executive's employment with Employer is
terminated by the Employer in conjunction with, or by reason of, a "change in
control" (as defined in subparagraph 1.5 above); of or (ii) by reason of
Employer's actions a material change occurs in the scope of Executive's
position, title, responsibilities, duties, salary, benefits, or locations of
employment after a "change in control" (as defined in subparagraph 1.5) occurs;
or (iii) Employer causes an event to occur which reasonably constitutes or
results in a demotion, a significant diminution of responsibilities or
authority, or a constructive termination (by forcing a resignation or otherwise)
of Executive's employment after a "change in control" (as defined in
subparagraph 1.5) occurs, then Executive (or Executive's designated beneficiary,
or Executive's estate if no designated beneficiary has been selected, upon
Executive's death) shall be entitled to be paid the Annual Benefit, as defined
above, in equal monthly installments, for a period of fifteen (15) years (One
Hundred Eighty (180) months), with installments to be paid on the first day of
each month,
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beginning with the month following the month in which the Executive is
terminated or any one of the actions referred to above occurs.
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6. Payments in the Event Executive Elects Early Retirement. Executive
shall have the right to elect to begin receiving payments of the applicable
Schedule B Amount prior to attaining sixty-three (63) years of age if he elects
to Retire on a date which constitutes an Early Retirement Date as defined in
subparagraph 1.8 above. In the event Executive elects to Retire on a date which
constitutes an Early Retirement Date, Executive shall be entitled to be paid
the Schedule B Amount, as defined above, in equal monthly installments, for a
period of fifteen (15) years (One Hundred Eighty (180) months), with payments
thereunder to begin on the month following the month in which the Early
Retirement Date occurs.
7. Additional Limitations on the Amount of the Annual Benefit/Schedule B
Amount. Executive acknowledges and agrees that the parties have entered into
this Agreement based upon the certain financial and tax accounting assumptions.
Accordingly, with full knowledge of the potential consequences Executive agrees
that, notwithstanding anything contained herein to the contrary: (i) the amount
of the Annual Benefit or the Schedule B Amount, as the case may be, shall be
limited to that amount of the Annual Benefit or Schedule B Amount (determined
without regard to this Paragraph 7) which will be deductible by the Employer
under the Code in the year in which payment is to be made to Executive; (ii)
the Annual Benefit amount or the Schedule B Amount, as the case may be, shall
be deemed to be the last payment made to Executive and the first for which an
income tax deduction, if any, has been disallowed; and (iii) any compensatory
amounts for which a deduction is denied to Employer shall, at Employer's
election, serve to first reduce Employer's obligation to make the monthly
Annual Benefit/Schedule B Amount payments otherwise due and payable to
Executive under the terms of this Agreement Executive recognizes that, in this
regard, limitations on deductibility may be imposed under, but not limited to,
Code Section 280G. Consistent with the foregoing, and in the event that any
payment or benefit received or to be received by Executive, whether payable
pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with Employer (together with the Annual Benefit or the Schedule B
Amount, the "Total Payments"), will not be deductible (in whole or in part) as
a result of Code Section 280G, the Annual Benefit or the Schedule B Amount
shall be reduced (unless sufficient benefits under Executive's Employment
Agreement, if any, are reduced by written agreement of the parties) until no
portion of the Total Payments is nondeductible as a result of Section 280G of
the Code (or the Annual Benefit/Schedule B Amount is reduced to zero (0)). For
purposes of this limitation:
(a) No portion of the Total Payments, the receipt
or enjoyment of which Executive shall have effectively waived in writing prior
to the date of payment of any future Annual Benefit or Schedule B Amount
payments, shall be taken into account;
(b) No portion of the Total Payments shall be
taken into account, which m the opinion of the tax counsel selected by Employer
and acceptable to Executive, does not constitute a "parachute payment" within
the meaning of Section 280G of the Code;
(c) Future Annual Benefit/Schedule B Amount
payments shall be reduced only to the extent necessary so that the Total
Payments (other than those referred to in clauses (a) or (b) above in their
entirety) constitute reasonable compensation for services actually rendered
within the meaning of Section 280G of the Code, in the opinion of tax counsel
referred to in clause (b) above; and
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(d) The value of any non-cash benefit or any
deferred payment or benefit included in the Total Payments shall be determined
by Employer's independent auditors in accordance with the principles of Section
280G of the Code.
8. Right To Determine Financing Methods. 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 Executive, Executive's spouse or Executive's beneficiaries under the
terms of this Agreement. In the event that Employer elects to finance this
Agreement, in whole or in part, through the use of life insurance or annuities,
or both, Employer shall determine the ownership and beneficial interests of any
such policy of life insurance or annuity. Employer further reserves the right,
in its sole and absolute discretion, to terminate any such policy, and any
other device used to finance its obligations under this Agreement, at any time,
in whole or in part. Consistent with Paragraph 10 below, neither Executive,
Executive's spouse nor Executive's beneficiaries shall have any right, title or
interest in or to any asset, financing source or amount utilized by Employer in
connection with this Agreement, and any such asset, financing source or amount
shall not constitute security for the performance of Employer's obligations
pursuant to this Agreement. In connection with the foregoing, Executive agrees
to execute such documents and undergo such medical examinations or tests which
Employer may request and which may be reasonably necessary to facilitate any
financing for this Agreement including, without limitation, Employer's
acquisition of any policy of insurance or annuity. Furthermore, a refusal by
Executive to consent to, participate in and undergo any such medical
examinations or tests shall result in the immediate termination of this
Agreement and the immediate forfeiture by Executive, Executive's spouse and
Executive's beneficiaries of any and all rights to payment hereunder.
9. Claims Procedure. 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, Employer shall make all determinations
as to the rights to benefits under this Agreement. Any decision by Employer
denying a claim by Executive, Executive's spouse, or Executive's beneficiary
for benefits under this Agreement shall be stated in writing and delivered or
mailed, via registered or certified mail, to Executive, Executive's spouse or
Executive's beneficiary, as the case may be. Such decision shall set forth the
specific reasons for the denial of a claim. In addition, Employer shall provide
Executive, Executive's spouse or Executive's beneficiary with a reasonable
opportunity for a full and fair review of the decision denying such claim.
10. Status as an Unsecured General Creditor. Notwithstanding anything
contained herein to the contrary: (i) neither Executive, Executive's spouse or
Executive's designated beneficiaries shall have any legal or equitable rights,
interests or claims in or to any specific property or assets of Employer; (ii)
none of Employer's asset. shall be held in or under any trust for the benefit
of Executive, Executive's spouse or Executive's designated beneficiaries or
held in any way as security for the fulfillment of the obligations of Employer
under this Agreement; (iii) all of Employer's assets shall be and remain,
except as otherwise agreed to by Employer with respect to other persons, the
general unpledged and unrestricted assets of Employer; (iv) Employer's
obligation under this Agreement shall be that of an unfunded and unsecured
promise by Employer to pay money in the future; and (v) Executive, Executive's
spouse and Executive's designated beneficiaries shall be unsecured general
creditors with respect to any benefits which may be payable under the terms of
this Agreement.
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11. Miscellaneous.
11.1 Opportunity To Consult With Independent Counsel.
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 Executive's right to these benefits. 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 Employer in its sole and absolute discretion or those matters
subject to the provisions of Article 9 hereof, 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 111 Pine Street, Suite 710, in San Francisco, California.
In the event JAMS is unable or unwilling to conduct the arbitration provided for
under the terms of this Paragraph, or has discontinued its business, the parties
agree that a representative member, selected by the mutual agreement of the
parties, of the American Arbitration Association ("AAA"), presently located 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 Salinas, 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
Executive or 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
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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 Employer: Central Coast Bancorp
301 Main Street
Salinas, Ca 93901
Attn: Corporate Secretary
If to Executive:
11.5 Assignment. Neither Executive, Executive's spouse, nor
any other beneficiary under this Agreement shall have any power or right to
transfer, assign, anticipate, hypothecate, modify or otherwise encumber any
part or all of the amounts payable hereunder, nor, prior to payment in
accordance with the terms of this Agreement, shall any portion of such amounts
be: (i) subject to seizure by any creditor of any such beneficiary, by a
proceeding at law or in equity, for the payment of any debts, judgments,
alimony or separate maintenance obligations which may be owed by Executive,
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 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 Executive and Employer and,
as applicable, their respective heirs, beneficiaries, legal representatives,
agents, successors and assigns. Accordingly, 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 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 the Office of the California Superintendent of
Banks and the Federal Deposit Insurance Corporation, shall govern the validity,
interpretation, construction and effect of this Agreement.
IN WITNESS WHEREOF, the Employer and the Executive have executed this
Agreement on the date first above-written in the City of Salinas, Monterey
County, California.
THE EMPLOYER: THE EXECUTIVE:
Bank of Salinas,
A California State Chartered Bank
By____________________________ ____________________________
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SCHEDULE A
NUMBER OF COMPLETE
YEARS WHICH HAVE ELAPSED APPLICABLE PERCENTAGE
- ---------------------------------------------------------------------
1 10.00%
2 20.00%
3 30.00%
4 40.00%
5 50.00%
6 60.00%
7 70.00%
8 80.00%
9 90.00%
10 100.00%
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SCHEDULE B
SCHEDULE B AMOUNT
For purposes of this Agreement, the parties agree that the Schedule B
Amount shall be equal to: (1) the Annual Benefit payable under the terms of the
Agreement as of the date of the event triggering a right to the installment
payments of the Schedule B amount, multiplied by (2) the percentage set forth
below which applies based on Executive's age at the time of the triggering
event:
A. If Executive is 59 or younger at time of triggering event: Twenty
Percent (20%);
B. If Executive is 60 at time of triggering event: Forty Percent
(40%);
C. If Executive is 61 at time of triggering event: Sixty Percent
(60%);
D. If Executive is 62 at time of triggering event: Eighty Percent
(80%); and
E. If Executive is 63 at time of triggering event: One Hundred Percent
(100%);
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SCHEDULE C
BENEFICIARY DESIGNATION
To the Administrator of the Bank of Salinas Executive Salary
Continuation Agreement:
Pursuant to the Provisions of my Executive Salary Continuation
Agreement with Bank of Salinas, 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:
_______________________________________________________________________________
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 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.
THE EXECUTIVE:
Dated.______________, 199__ ________________________________
CONSENT OF THE EXECUTIVE'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 Executive Salary Continuation Agreement
entered into by my spouse effective as of
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, 1997 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 Executive Salary Continuation Agreement and in which I may have a marital
property interest.
Dated: ______________________, 1997.
____________________________________
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