- --------------------------------------------------------------------------------
-C- 1996 BANK COMPENSATION STRATEGIES GROUP
THIS DOCUMENT IS PROVIDED TO ASSIST YOUR LEGAL COUNSEL IN DOCUMENTING YOUR
SPECIFIC ARRANGEMENT. IT IS NOT A FORM TO BE SIGNED, NOR IS IT TO BE
CONSTRUED AS LEGAL ADVICE. FAILURE TO ACCURATELY DOCUMENT YOUR ARRANGEMENT
COULD RESULT IN SIGNIFICANT LOSSES, WHETHER FROM CLAIMS OF THOSE
PARTICIPATING IN THE ARRANGEMENT, FROM THE HEIRS AND BENEFICIARIES OF
PARTICIPANTS, OR FROM REGULATORY AGENCIES SUCH AS THE INTERNAL REVENUE
SERVICE AND THE DEPARTMENT OF LABOR. LICENSE IS HEREBY GRANTED TO YOUR LEGAL
COUNSEL TO USE THESE MATERIALS IN DOCUMENTING SOLELY YOUR ARRANGEMENT.
- --------------------------------------------------------------------------------
CLOVEST CORPORATION
DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this 14th day of November, 1996 by and between
CLOVEST CORPORATION, a California corporation located in Clovis, California (the
"Company"), and LOUIS MCMURRAY (the "Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's Board of
Directors, the Company is willing to provide to the Director a deferred fee
opportunity. The Company will pay the benefits from its general assets.
AGREEMENT
The Director and the Company agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. Whenever used in this Agreement, the following words
and phrases shall have the meanings specified:
1.1.1 "CHANGE OF CONTROL" means the transfer of shares of the
Company's voting common stock such that one person acquires (or is deemed
to acquire under Section 318 of the Code) 51% or more of the Company's
outstanding voting common stock followed within twelve (12) months by the
termination of the Director's status as a member of the Company's Board
of Directors.
1.1.2 "CODE" means the Internal Revenue Code of 1986, as amended.
1.1.3 "DISABILITY" means the Director's inability to perform
substantially all normal duties of a director, as determined by the
Company's Board of Directors in its sole discretion. As a condition to
any benefits, the Company may require the Director to submit to such
physical or mental evaluations and tests as the Board of Directors deems
appropriate.
1.1.4 "DISTRIBUTION DATE" means November 1, 2003.
1.1.5 "ELECTION FORM" means the Form attached as Exhibit A.
1.1.6 "FEES" means the total directors fees payable to the
Director.
1.1.7 "TERMINATION OF SERVICE" means the Director's ceasing to be
a member of the Company's Board of Directors for any reason whatsoever.
ARTICLE 2
DEFERRAL ELECTION
2.1 INITIAL ELECTION. The Director shall make an initial deferral
election under this Agreement by filing with the Company a signed Election
Form within fifteen (15) days after the date of this Agreement. The Election
Form shall set forth the amount of Fees to be deferred and the form of
benefit payment. The Election Form shall be effective to defer only Fees
earned after the date the Election Form is received by the Company.
2.2 ELECTION CHANGES
2.2.1 GENERALLY. The Director may modify the amount of Fees to be
deferred by filing a subsequent signed Election Form with the Company and
obtaining written approval by the Board of Directors of the Company. The
modified deferral shall not be effective until the calendar year
following the year in which the subsequent Election Form is received by
the Company. The Director may not change the form of benefit payment
initially elected under Section 2.1 without the written approval of the
Board of Directors of the Company.
2.2.2 HARDSHIP. If an unforeseeable financial emergency
arising from the death of a family member, divorce, sickness,
injury, catastrophe or similar event outside the control of the
Director occurs, the Director, by written instructions to the
Company may reduce future deferrals under this Agreement.
ARTICLE 3
DEFERRAL ACCOUNT
3.1 ESTABLISHING AND CREDITING. The Company shall establish a Deferral
Account on its books for the Director, and shall credit to the Deferral
Account the following amounts:
3.1.1 DEFERRALS. The Fees deferred by the Director as of the
time the Fees would have otherwise been paid to the Director.
3.1.2 INTEREST. On each anniversary of the date of this
Agreement and immediately prior to the payment of any benefits, but
only until commencement of the benefit payments under this
Agreement, interest on the account balance since the preceding
credit under this Section 3.1.2, if any, equal to the rate
determined by the Company's Board of Directors, in its sole
discretion.
3.2 STATEMENT OF ACCOUNTS. The Company shall provide to the Director,
within one hundred twenty (120) days after each anniversary of this
Agreement, a statement setting forth the Deferral Account balance.
3.3 ACCOUNTING DEVICE ONLY. The Deferral Account is solely a device
for measuring amounts to be paid under this Agreement. The Deferral Account
is not a segregated fund of any kind. The Director is a general unsecured
creditor of the Company for the payment of benefits. The benefits represent
the mere Company promise to pay such benefits. The Director's rights are not
subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by the Director's
creditors.
ARTICLE 4
LIFETIME BENEFITS
4.1 NORMAL BENEFIT. Upon the Distribution Date, the Company shall pay
to the Director the benefit described in this Section 4.1.
4.1.1 AMOUNT OF BENEFIT. The benefit under this Section 4.1
is the Deferral Account balance at the Distribution Date.
4.1.2 PAYMENT OF BENEFIT. The Company shall pay the benefit
to the Director in the form elected by the Director on the Election
Form.
4.2 EARLY TERMINATION BENEFIT. If the Director terminates service as a
director before the Distribution Date, and for reasons other than death or
Disability, the Company shall pay to the Director the benefit described in
this Section 4.2.
4.2.1 AMOUNT OF BENEFIT. The benefit under this Section 4.2
is the Deferral Account balance at the Director's Termination of
Service.
4.2.2 PAYMENT OF BENEFIT. The Company shall pay the benefit
to the Director in a lump sum within forty-five (45) days after the
Director's Termination of Service.
4.3 DISABILITY BENEFIT. If the Director terminates service as a
director for Disability prior to the Distribution Date, the Company shall pay
to the Director the benefit described in this Section 4.3.
4.3.1 AMOUNT OF BENEFIT. The benefit under this Section 4.3
is the Deferral Account balance at the Director's Termination of
Service.
4.3.2 PAYMENT OF BENEFIT. The Company shall pay the benefit
to the Director in the form elected by the Director on the Election
Form within thirty (30) days after Director's Termination of
Employment.
4.4 CHANGE OF CONTROL BENEFIT. Upon a Change of Control while the
Director is in the active service of the Company, the Company shall pay to
the Director the benefit described in this Section 4.4 in lieu of any other
benefit under this Agreement.
4.4.1 AMOUNT OF BENEFIT. The benefit under this Section 4.4
is the Deferral Account balance at the date of the Director's
Termination of Service.
4.4.2 PAYMENT OF BENEFIT. The Company shall pay the benefit
to the Director in a lump sum within thirty (30) days after the
Director's Termination of Service.
4.5 HARDSHIP DISTRIBUTION. Upon the Company's determination (following
petition by the Director) that the Director has suffered an unforeseeable
financial emergency as described in Section 2.2.2, the Company shall
distribute to the Director all or a portion of the Deferral Account balance
as determined by the Company, but in no event shall the distribution be
greater than is necessary to relieve the financial hardship.
ARTICLE 5
DEATH BENEFITS
5.1 DEATH DURING ACTIVE SERVICE. If the Director dies while in the
active service of the Company and prior to the commencement of benefit
payments under this Agreement, the Company shall pay to the Director's
beneficiary the benefit described in this Section 5.1.
5.1.1 AMOUNT OF BENEFIT. The benefit under Section 5.1 is the
Director's Deferral Account balance at the Director's date of death.
5.1.2 PAYMENT OF BENEFIT. The Company shall pay the benefit
to the beneficiary in one hundred twenty (120) equal monthly
installments commencing on the first day of the month following the
Director's Death.
5.2 DEATH DURING BENEFIT PERIOD. If the Director dies after benefit
payments have commenced under this Agreement but before receiving all such
payments, the Company shall pay the remaining benefits to the Director's
beneficiary at the same time and in the same amounts they would have been
paid to the Director had the Director survived.
ARTICLE 6
BENEFICIARIES
6.1 BENEFICIARY DESIGNATIONS. The Director shall designate a
beneficiary by filing a written designation with the Company. The Director
may revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Director and
accepted by the Company during the Director's lifetime. The Director's
beneficiary designation shall be deemed automatically revoked if the
beneficiary predeceases the Director, or if the Director names a spouse as
beneficiary and the marriage is subsequently dissolved. If the Director dies
without a valid beneficiary designation, all payments shall be made to the
Director's surviving spouse, if any, and if none, to the Director's surviving
children and the descendants of any deceased child by right of
representation, and if no children or descendants survive, to the Director's
estate.
6.2 FACILITY OF PAYMENT. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the
Company may pay such benefit to the guardian, legal representative or person
having the care or custody of such minor, incompetent person or incapable
person. The Company may require proof of incompetency, minority or
guardianship as it may deem appropriate prior to distribution of the benefit.
Such distribution shall completely discharge the Company from all liability
with respect to such benefit.
ARTICLE 7
GENERAL LIMITATIONS
7.1 INSURANCE. The Company may acquire an insurance policy on the life
of the Director. The Company will be the owner and beneficiary of the policy.
The Director will have no interest in or right to the policy.
7.2 SUICIDE. If the Director commits suicide within two years after
the date of this Agreement, or if the Director has made any misstatement of
fact on the application for life insurance purchased by the Company, the
Company shall pay only the Deferral Account balance as of the date of death
of the Director notwithstanding any provision of this Agreement to the
contrary
7.3 GENERAL. Notwithstanding anything to the contrary contained in
this Agreement, the Director is entitled to only one benefit which shall be
determined by the first event to occur which is dealt with by this Agreement.
Subsequent occurrence of events dealt with by this Agreement shall not
entitle the Director or his or her beneficiaries to other or further benefits
under this Agreement.
7.4 TAX CONSEQUENCES. The Company does not insure or guarantee the tax
consequences of payments provided hereunder for matters beyond its control,
and the Director certifies that his decision to reduce and defer to receive
his compensation is not
due to any reliance upon financial, tax or legal advice given by the Company,
and of its employees, agents, accountants or legal advisors.
ARTICLE 8
CLAIMS AND REVIEW PROCEDURES
8.1 CLAIMS PROCEDURE. The Company shall notify the Director's
beneficiary in writing, within ninety (90) days of his or her written
application for benefits, of his or her eligibility or noneligibility for
benefits under the Agreement. If the Company determines that the beneficiary
is not eligible for benefits or full benefits, the notice shall set forth (1)
the specific reasons for such denial, (2) a specific reference to the
provisions of the Agreement on which the denial is based, (3) a description
of any additional information or material necessary for the claimant to
perfect his or her claim, and a description of why it is needed, and (4) an
explanation of the Agreement's claims review procedure and other appropriate
information as to the steps to be taken if the beneficiary wishes to have the
claim reviewed. If the Company determines that there are special
circumstances requiring additional time to make a decision, the Company shall
notify the beneficiary of the special circumstances and the date by which a
decision is expected to be made, and may extend the time for up to an
additional ninety-day period.
8.2 REVIEW PROCEDURE. If the beneficiary is determined by the Company
not to be eligible for benefits, or if the beneficiary believes that he or
she is entitled to greater or different benefits, the beneficiary shall have
the opportunity to have such claim reviewed by the Company by filing a
petition for review with the Company within sixty (60) days after receipt of
the notice issued by the Company. Said petition shall state the specific
reasons which the beneficiary believes entitle him or her to benefits or to
greater or different benefits. Within sixty (60) days after receipt by the
Company of the petition, the Company shall afford the beneficiary (and
counsel, if any) an opportunity to present his or her
position to the Company orally or in writing, and the beneficiary (or
counsel) shall have the right to review the pertinent documents. The Company
shall notify the beneficiary of its decision in writing within the sixty-day
period, stating specifically the basis of its decision, written in a manner
calculated to be understood by the beneficiary and the specific provisions of
the Agreement on which the decision is based. If, because of the need for a
hearing, the sixty-day period is not sufficient, the decision may be deferred
for up to another sixty-day period at the election of the Company, but notice
of this deferral shall be given to the beneficiary.
ARTICLE 9
AMENDMENTS AND TERMINATION
The Company may amend or terminate this Agreement at any time prior to
the Director's Termination of Service by written notice to the Director. In
no event shall this Agreement be terminated without payment to the Director
of the Deferral Account balance attributable to the Director's deferrals and
interest credited on such amounts.
ARTICLE 10
MISCELLANEOUS
10.1 BINDING EFFECT. This Agreement shall bind the Director and the
Company, and their beneficiaries, successors and assigns, survivors,
executors, administrators and transferees.
10.2 NO GUARANTY OF SERVICE. This Agreement is not a contract for
services. It does not give the Director the right to remain a director of the
Company, nor does it interfere with the shareholders' rights to replace the
Director. It also does not require the Director to
remain a director nor interfere with the Director's right to terminate
services at any time.
10.3 NON-TRANSFERABILITY. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any manner.
10.4 TAX WITHHOLDING. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
10.5 APPLICABLE LAW. The Agreement and all rights hereunder shall be
governed by the laws of California except to the extent preempted by the laws
of the United States of America.
10.6 UNFUNDED ARRANGEMENT. The Director and beneficiary are general
unsecured creditors of the Company for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Company to pay such
benefits. The rights to benefits are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors. Any insurance on the Director's life
is a general asset of the Company to which the Director and beneficiary have
no preferred or secured claim.
10.7 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Company and the Director as to the subject matter hereof. No
rights are granted to the Director by virtue of this Agreement other than
those specifically set forth herein.
10.8 ADMINISTRATION. The Company shall have powers which are necessary
to administer this Agreement, including but not limited to:
10.8.1 Interpreting the provisions of the Agreement;
10.8.2 Establishing and revising the method of accounting for
the Agreement;
10.8.3 Maintaining a record of benefit payments; and
10.8.4 Establishing rules and prescribing any forms necessary
or desirable to administer the Agreement.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer
have signed this Agreement.
DIRECTOR: COMPANY:
CLOVEST CORPORATION
/s/ Louis Mcmurray BY /s/ Donald H. Bruegman
- ------------------------- ------------------------------------
LOUIS MCMURRAY DONALD H. BRUEGMAN
TITLE: PRESIDENT
and
BY /s/ Robert Daneke
------------------------------------
ROBERT DANEKE
TITLE: VICE PRESIDENT