Amended and Restated Salary Continuation Agreement
Amended
and Restated Salary Continuation Agreement
This
Amended
and Restated Salary Continuation Agreement
(this
“Agreement”) is entered into as of this 29th day of December, 2006, by and
between Capital Corp of the West, a California bank holding company (the
“Company”), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, (the “Executive”). This Agreement amends and
restates the amended salary continuation agreement (“Original Agreement”) dated
June 19, 2006 (and the other agreements, if any, referenced in the Original
Agreement) and entered into by and between Company and the Executive to make
changes to comply with section 409A of the Internal Revenue Code of 1986, as
amended (“Code”), and make other changes.
Recitals
Whereas,
recognizing the Executive’s substantial contribution to the success of the
Company and intending to encourage the Executive to remain a team member of
the
Company, the Company entered into the Original Agreement with the Executive,
promising specified benefits to the Executive after retirement, payable from
the
Company’s general assets; and
Whereas,
the
Company and the Executive have agreed to certain changes in the Agreement;
and
Whereas,
the
Company and the Executive intend that this Agreement shall amend and restate
in
its entirety the Original Agreement; and
Whereas,
none of
the conditions or events included in the definition of the term “golden
parachute payment” that is set forth in section 18(k)(4)(A)(ii) of the Federal
Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit
Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists
or,
to the best knowledge of the Company, is contemplated insofar as the Company
is
concerned; and
Whereas,
the
parties hereto intend that this Agreement shall be considered an unfunded
arrangement maintained primarily to provide supplemental retirement benefits
for
the Executive, and to be considered a non-qualified benefit plan for purposes
of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The
Executive is fully advised of the Company’s financial status.
Now,
Therefore,
in
consideration of these premises and other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the Executive and
the
Company hereby agree as follows.
Article
1
Definitions
Whenever
used in this Agreement, the following terms shall have the meanings
specified:
1.1 “Accrual
Balance”
means
the liability that should be accrued by the Company under generally accepted
accounting principles (“GAAP”) for the Company’s obligation to the Executive
under this Agreement, by applying Accounting Principles Board Opinion No. 12,
as
amended by Statement of Financial Accounting Standards No. 106. The Accrual
Balance shall be calculated assuming a level principal amount and interest
as
the discount rate is accrued each period. The principal accrual is determined
such that when it is credited with interest each month, the Accrual Balance
at
Normal Retirement Age equals the present value of the normal retirement
benefits. The discount rate means the rate used by the Plan Administrator for
determining the Accrual Balance. In its sole discretion, the Plan Administrator
may adjust the discount rate to maintain the rate within reasonable standards
according to GAAP.
1.2 “Beneficiary”
means
each designated person, or the estate of the deceased Executive, entitled to
benefits, if any, upon the death of the Executive, determined according to
Article 4.
1.3 “Beneficiary
Designation Form”
means
the form attached hereto as Exhibit 1 established from time to time by the
Plan
Administrator that the Executive completes, signs, and returns to the Plan
Administrator to designate one or more Beneficiaries.
1.4“Change
in Control”
means
a
change in control of the Company within the meaning of Internal Revenue Code
section 409A and regulations promulgated thereunder and to the extent consistent
with section 409A of the Code means the earliest occurrence of one of the
following events:
A. A
Change In Ownership of the Employer.
A
change
in ownership of the Employer occurs on the date that any person (or group of
persons) acquires ownership of stock of the Employer that, together with stock
held by such person or group, constitutes more than fifty percent (50%) of
the
total fair market value or total voting power of the stock of the Employer,
respectively.
B. A
Change in Effective Control of the Employer.
A
change
in effective control of the Employer occurs on the date that:
1. Any
person (or group of persons) acquires (or has acquired during the twelve (12)
month period ending on the date of the most recent acquisition by such person
or
persons) ownership of stock of the Employer possessing thirty-five percent
(35%)
or more of the total voting power of the stock of the Employer, respectively;
or
2. A
majority of members of the Employer’s Board is replaced during any twelve (12)
month period by directors whose appointment or election is not endorsed by
a
majority of the members of the Employer’s Board, respectively prior to the date
of the appointment or election.
C. A
Change in Ownership of a Substantial Portion of the Employer’s
Assets.
A
change
in the ownership of a substantial portion of the Employer’s assets occurs on the
date that any person (or group of persons) acquires (or has acquired during
the
twelve (12) month period ending on the date of the most recent acquisition
by
such person or persons) assets from the Employer, respectively that have a
total
gross fair market value equal to, or more than, forty percent (40%) of the
total
gross fair market value of all of the assets of the Employer, respectively
immediately prior to such acquisition or acquisitions.
1.5 “Code”
means
the Internal Revenue Code of 1986, as amended.
1.6 “Disability”
means
disabled within the meaning of Internal Revenue Code section 409A and
regulations promulgated thereunder.
1.7 “Early
Termination Date”
means
shall mean that date which satisfies all
of the
following conditions:
|
(a)
|
It
shall be a date prior to the Executive attaining age
65;
|
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(b)
|
It
shall be the date on which the Executive terminates salaried employment
with the Company for any reason other than Termination for Cause,
Disability, or a Change in Control and such termination constitutes
a
Separation of Service; and
|
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(c)
|
It
shall be the date identified by the Executive at the Early Termination
Date in a written notice filed with the Company at least 30 days
prior to
such date.
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1.8 “Effective
Date”
means
the date of this Agreement.
1.9 “Intentional,”
for
purposes of this Agreement, no act or failure to act on the part of the
Executive shall be deemed to have been intentional if it was due primarily
to an
error in judgment or negligence. An act or failure to act on the Executive’s
part shall be considered intentional if it is not in good faith and if it is
without a reasonable belief that the action or failure to act is in the best
interests of the Company.
1.10 “Normal
Retirement Age”
The
term “Normal Retirement Age” shall mean the day which satisfies the following
conditions:
|
(a)
|
It
shall be a day on or after the Executive attains age 65;
and
|
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(b)
|
It
shall be the day on which the Executive terminates salaried employment
with the Company for any reason other than Termination for Cause
and such
termination constitutes a Separation of
Service.
|
1.11 “Plan
Administrator”
or
“Administrator”
means
the plan administrator described in Article 8.
1.12 “Plan
Year”
means
a
twelve month period commencing on January 1 and ending on December 31 of each
year.
1.13 “Separation
from Service”
means
the Executive’s service as an executive and independent contractor to the
Company and any member of a controlled group, as defined in Code section 414,
terminates for any reason, other than because of a leave of absence approved
by
the Company or the Executive’s death. For purposes of this Agreement, if there
is a dispute about the employment status of the Executive or the date of the
Executive’s Separation from Service, the Company shall have the sole and
absolute right to decide the dispute unless a Change in Control shall have
occurred.
1.14 “Termination
for Cause”
and
“Cause”
shall
have the same meaning specified in the Executive’s Amended and Restated
Severance Agreement with the Company existing on the date hereof or any
successor to such severance agreement.
Article
2
Lifetime
Benefits
2.1 Normal
Retirement Benefit.
If the
Executive shall remain in the continuous employment of the Company until Normal
Retirement Age, the Company shall pay to the Executive the benefit described
in
this section 2.1 in lieu of any other benefit under this Agreement.
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|
2.1.1
|
Amount
of Benefit.
The annual benefit under this section 2.1 is
$85,000.
|
|
|
2.1.2
|
Payment
of Benefit.
Subject to section 2.7 herein, the Company shall pay the annual benefit
to
the Executive in 12 equal monthly installments payable on the first
day of
each month, beginning with the month immediately after the month
in which
the Executive attains the Normal Retirement Age. The annual benefit
shall
be paid to the Executive for 15
years.
|
2.2 Early
Retirement Benefit.
If the
Executive qualifies and elects to retire at the Early Termination Date, the
Company shall pay to the Executive the benefit described in this section 2.2
in
lieu of any other benefit under this Agreement.
|
|
2.2.1
|
Amount
of Benefit.
The benefit under this section 2.2 is the Early Termination annual
benefit
amount set forth in Schedule A for the Plan Year ending immediately
before
the Early Termination Date.
|
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2.2.2
|
Payment
of Benefit.
Subject to section 2.7, the Company shall pay the annual benefit
to the
Executive in 12 equal monthly installments payable on the first day
of
each month, beginning with the month immediately following the Early
Termination Date. The annual benefit shall be paid to the Executive
for 15
years.
|
2.3 Disability
Benefit.
In the
event the Executive incurs a Disability while actively employed by the Company
and has a Separation of Service because of such Disability at any time after
the
Effective Date, but prior to Executive reaching age 65 or a Change in Control,
the Company shall pay to the Executive the benefit described in this section
2.3
instead of any other benefit under this Agreement.
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2.3.1
|
Amount
of Benefit.
The benefit under this section 2.3 is the Disability annual benefit
amount
set forth in Schedule A for the Plan Year ending immediately before
the
date on which Separation from Service because of Disability
occurs.
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2.3.2
|
Payment
of Benefit.
Subject to section 2.7 herein, the Company shall pay the annual benefit
to
the Executive in 12 equal monthly installments payable on the first
day of
each month, beginning with the month immediately after the date the
Executive had the Separation from Service because of Disability.
The
annual benefit shall be paid to the Executive for 15
years.
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2.4 Change-in-Control
Benefit.
If a
Change in Control occurs prior to the Executive having a Separation of Service
for any reason other than a Change in Control or prior to Executive attaining
age 65, the Company shall pay to the Executive the benefit described in this
section 2.4 instead of any other benefit under this Agreement.
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2.4.1
|
Amount
of Benefit:
The benefit under this section 2.4 is the Normal Retirement Age benefit
specified in section 2.1.
|
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2.4.2
|
Payment
of Benefit:
Subject to section 2.7 herein, the Company shall pay the annual benefit
under this section 2.4 to the Executive in 12 equal monthly installments
payable on the first day of each month, beginning with the month
immediately after the month in which the Executive attains age 65.
The
annual benefit shall be paid to the Executive for 15
years.
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2.5 Contradiction
in Terms of Agreement and Schedule A.
If
there is a contradiction in the terms of this Agreement and Schedule A attached
hereto concerning the actual amount of a particular benefit amount due the
Executive under sections 2.2, 2.3, or 2.4 hereof, then the actual amount of
the
benefit set forth in the Agreement shall control. If the Plan Administrator
changes the discount rate employed for purposes of calculating the Accrual
Balance, the Plan Administrator shall prepare or cause to be prepared a revised
Schedule A, which shall supersede and replace any and all Schedules A previously
prepared under or attached to this Agreement.
2.6 One
Benefit Only.
Subject
to Article 5, the Executive and/or Beneficiary are entitled to one benefit
only
under Article 2 of this Agreement, which shall be determined by the first event
to occur that is dealt with by Article 2 of this Agreement. Subsequent
occurrence of events covered by this Article 2 shall not entitle the Executive
and/or the Executive’s Beneficiary to additional benefits under Article
2.
2.7 Delayed
Payments for Specified Employees and Savings Clause Relating to Compliance
with
Section 409A of the Code.
In the
event that § 409A of the Code applies to any benefit compensation with
respect to a Separation from Service, payment of that benefit compensation
shall
be delayed if Executive is a “specified employee,” as defined in
§ 409A(a)(2)(B)(i) of the Code, and such delayed payment is required by §
409A of the Code. Such delay shall last six months from the date of Separation
from Service. On the day following the end of the six-month period, the Company
shall make a catch-up payment to Executive equal to the total amount of such
payments that would have been made during the six-month period but for this
section 2.8.
Furthermore,
if any provision of this Agreement would subject the Executive to additional
tax
or interest under section 409A of the Code, the Company shall reform the
provision. However, the Company shall maintain to the maximum extent practicable
the original intent of the applicable provision without subjecting the Executive
to additional tax or interest, and the Company shall not be required to incur
any additional compensation expense as a result of the reformed provision.
References in this Agreement to section 409A of the Code include rules,
regulations, and guidance of general application issued by the Department of
the
Treasury under section 409A of the Code.
Article
3
Death
Benefits
3.1 Death
Before Normal Retirement Age.
In the
event the Executive should die while actively employed by the Company, at any
time after the effective date of this Agreement, but prior to the Normal
Retirement Date, the Company agrees to pay the benefit amount provided under
section 2.1.1 of this Agreement for a period of fifteen (15) years in one
hundred eighty (180) equal monthly installments, with each installment to be
paid on the first of each month beginning with the month following the
Executive’s death, to the Executive’s Beneficiary. If there is no Beneficiary,
then the amounts due to the Executive under the terms of this Agreement will
be
paid by the Company to the duly qualified personal representative, executor
or
administrator of the Executive’s estate. However, no benefits under this
Agreement shall be paid or payable to the Executive’s Beneficiary if this
Agreement is terminated under Article 5.
3.2 Death
After Payment of Benefits Are Required under Article 2.
If the
Executive dies after benefits are required under Article 2 and any or all of
the
required payments have not been made, then the Company shall pay to the
Executive’s Beneficiary the benefits or remaining benefits that would have been
paid to the Executive had the Executive survived, at the same time and in the
same amounts the benefits would have been paid to the Executive, except that
the
benefit distributions which have not commenced shall commence upon the earlier
of the scheduled distribution date or within thirty (30) days following the
date
of receipt by the Company of the Executive’s death certificate. However, no
benefits under this Agreement shall be paid or payable to the Executive’s
Beneficiary if this Agreement is terminated under Article 5.
Article
4
Beneficiaries
4.1
Beneficiary
Designations.
The
Executive shall have the right to designate at any time a Beneficiary to receive
any benefits payable under this Agreement upon the death of the Executive.
The
Beneficiary designated under this Agreement may be the same as or different
from
the beneficiary designation under any other benefit plan of the Company in
which
the Executive participates.
4.2 Beneficiary
Designation: Change.
The
Executive shall designate a Beneficiary by completing and signing the
Beneficiary Designation Form and Spousal Consent, as necessary and delivering
it
to the Plan Administrator or its designated agent. The Executive’s Beneficiary
designation shall be deemed automatically revoked if the Beneficiary predeceases
the Executive or if the Executive names a spouse as Beneficiary and the marriage
is subsequently dissolved. The Executive shall have the right to change a
Beneficiary by completing, signing, and otherwise complying with the terms
of
the Beneficiary Designation Form and Spousal Consent, as necessary and the
Plan
Administrator’s rules and procedures, as in effect from time to time. Upon the
acceptance by the Plan Administrator of a new Beneficiary Designation Form
and
Spousal Consent, as necessary, all Beneficiary designations previously filed
shall be cancelled. The Plan Administrator shall be entitled to rely on the
last
Beneficiary Designation Form filed by the Executive and accepted by the Plan
Administrator before the Executive’s death.
4.3 Acknowledgment.
No
designation or change in designation of a Beneficiary shall be effective until
received, accepted, and acknowledged in writing by the Plan Administrator or
its
designated agent.
4.4 No
Beneficiary Designation.
If the
Executive dies without a valid beneficiary designation, or if all designated
Beneficiaries predecease the Executive, then the Executive’s spouse shall be the
designated Beneficiary. If the Executive has no surviving spouse, the benefits
shall be made to the personal representative of the Executive’s
estate.
4.5 Facility
of Payment.
If a
benefit is payable to a minor, to a person declared incapacitated, 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 the minor, incapacitated person, or incapable person. The
Company may require proof of incapacity, minority, or guardianship as it may
deem appropriate before distribution of the benefit. Full distribution shall
completely discharge the Company from all liability for the
benefit.
Article
5
General
Limitations
5.1 Termination
for Cause.
Notwithstanding any provision of this Agreement to the contrary, the Company
shall not pay any benefit under this Agreement, and this Agreement shall
terminate if Separation from Service is the result of Termination for
Cause.
5.2 Misstatement.
No
benefits shall be paid under this Agreement if the Executive makes any material
misstatement of fact on any application or resume provided to the Company,
on
any application for life insurance purchased by the Company, or on any
application for benefits provided by the Company.
5.3
Removal.
If the
Executive is removed from office or permanently prohibited from participating
in
the Company’s affairs by an order issued under section 8(e)(4) or (g)(1) of the
Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), all obligations
of the Company under this Agreement shall terminate as of the effective date
of
the order.
5.4 Default.
Notwithstanding any provision of this Agreement to the contrary, if the Company
is in “default” or “in danger of default,” as those terms are defined in section
3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations
under this Agreement shall terminate.
5.5 FDIC
Open-Bank Assistance.
All
obligations under this Agreement shall terminate, except to the extent
determined that continuation of the contract is necessary for the continued
operation of the Company, when the Federal Deposit Insurance Corporation enters
into an agreement to provide assistance to or on behalf of the Company under
the
authority contained in Federal Deposit Insurance Act section 13(c). 12 U.S.C.
1823(c). Rights of the parties that have already vested shall not be affected
by
such action, however.
Article
6
Claims
and Review Procedures
6.1 Claims
Procedure.
A
person or beneficiary (“claimant”) who has not received benefits under the
Agreement that he or she believes should be paid shall make a claim for such
benefits as follows -
6.1.1 Initiation
- Written Claim.
The
claimant initiates a claim by submitting to the Administrator a written claim
for the benefits. If the claim relates to the contents of a notice received
by
the claimant, the claim must be made within 60 days after the notice was
received by the claimant. All other claims must be made within 180 days after
the date of the event that caused the claim to arise. The claim must state
with
particularity the determination desired by the claimant.
6.1.2 Timing
of Company Response.
The
Company shall respond to the claimant within 90 days after receiving the claim.
If the Company determines that special circumstances require additional time
for
processing the claim, the Company may extend the response period by an
additional 90 days by notifying the claimant in writing before the end of the
initial 90-day period that an additional period is required. The notice of
extension must state the special circumstances and the date by which the Company
expects to render its decision.
6.1.3 Notice
of Decision.
If the
Company denies part or all of the claim, the Company shall notify the claimant
in writing of the denial. The Company shall write the notification in a manner
calculated to be understood by the claimant. The notification shall set forth
-
6.1.3.1
the
specific reasons for the denial; and
6.1.3.2
a
reference to the specific provisions of the Agreement on which the denial is
based; and
6.1.3.3
a
description of any additional information or material necessary for the claimant
to perfect the claim and an explanation of why it is needed; and
6.1.3.4
an
explanation of the Agreement’s review procedures and the time limits applicable
to such procedures.
6.2 Review
Procedure.
If the
Company denies part or all of the claim, the claimant shall have the opportunity
for a full and fair review by the Company of the denial, as follows
-
6.2.1 Initiation
- Written Request.
To
initiate the review, within 60 days after receiving the Company’s notice of
denial the claimant must file with the Company a written request for
review.
6.2.2 Additional
Submissions - Information Access.
The
claimant shall then have the opportunity to submit written comments, documents,
records, and other information relating to the claim. Upon request and free
of
charge, the Company shall also provide the claimant reasonable access to and
copies of all documents, records, and other information relevant to the
claimant’s claim for benefits.
6.2.3 Considerations
on Review.
In
considering the review, the Company shall take into account all materials and
information the claimant submits relating to the claim, without regard to
whether the information was submitted or considered in the initial benefit
determination.
6.2.4
Timing
of Company Response.
The
Company shall respond in writing to the claimant within 60 days after receiving
the request for review. If the Company determines that special circumstances
require additional time for processing the claim, the Company may extend the
response period by an additional 60 days by notifying the claimant in writing
before the end of the initial 60-day period that an additional period is
required. The notice of extension must state the special circumstances and
the
date by which the Company expects to render its decision.
6.2.5
Notice
of Decision.
The
Company shall notify the claimant in writing of its decision on review. The
Company shall write the notification in a manner calculated to be understood
by
the claimant. The notification shall set forth -
6.2.5.1
the
specific reason for the denial; and
6.2.5.2
a
reference to the specific provisions of the Agreement on which the denial is
based; and
6.2.5.3
a
statement that the claimant is entitled to receive, upon request and free of
charge, reasonable access to and copies of all documents, records, and other
information relevant to the claimant’s claim for benefits.
Article
7
Miscellaneous
7.1 Amendments
and Termination.
Subject
to section 7.14 of this Agreement, this Agreement may be amended solely by
a
written agreement signed by the Company and by the Executive, and except for
termination occurring under Article 5 this Agreement may be terminated solely
by
a written agreement signed by the Company and by the Executive.
7.2 Binding
Effect.
This
Agreement shall bind the Executive, the Company, and their beneficiaries,
survivors, executors, successors, administrators, and transferees.
7.3 No
Guarantee of Employment.
This
Agreement is not an employment policy or contract. It does not give the
Executive the right to remain an employee of the Company nor does it interfere
with the Company’s right to discharge the Executive. It also does not require
the Executive to remain an employee or interfere with the Executive’s right to
terminate employment at any time.
7.4 Non-Transferability.
Benefits under this Agreement cannot be sold, transferred, assigned, pledged,
attached, or encumbered in any manner.
7.5 Successors;
Binding Agreement.
The
Company shall require any successor (whether direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the business
or assets of the Company, by an assumption agreement in form and substance
satisfactory to the Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be
required to perform this Agreement if no such succession had
occurred.
7.6 Tax
Withholding.
The
Company shall withhold any taxes that are required to be withheld from the
benefits provided under this Agreement.
7.7 Applicable
Law.
This
Agreement and all rights hereunder shall be governed by the laws of the State
of
California, except to the extent preempted by the laws of the United States
of
America.
7.8 Unfunded
Arrangement.
The
Executive 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 benefits. 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
Executive’s life is a general asset of the Company to which the Executive and
Beneficiary have no preferred or secured claim.
7.9 Entire
Agreement.
This
Agreement constitutes the entire agreement between the Company and the Executive
concerning the subject matter. No rights are granted to the Executive under
this
Agreement other than those specifically set forth. This Agreement amends and
restates in its entirety the Original Agreement.
7.10 Severability.
If for
any reason any provision of this Agreement is held invalid, such invalidity
shall not affect any other provision of this Agreement not held invalid, and
to
the full extent consistent with law each such other provision shall continue
in
full force and effect. If any provision of this Agreement is held invalid in
part, such invalidity shall not affect the remainder of such provision not
held
invalid, and to the full extent consistent with law the remainder of such
provision, together with all other provisions of this Agreement, shall continue
in full force and effect.
7.11 Headings.
Captions and section headings are included solely for convenience of reference
and shall not affect the meaning or interpretation of any provision of this
Agreement.
7.12
Notices.
All
notices, requests, demands, and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed, certified or registered mail, return receipt requested, with postage
prepaid, to the following addresses or to such other address as either party
may
designate by like notice. Unless otherwise changed by notice, notice shall
be
properly addressed to the Executive if addressed to the address of the Executive
on the books and records of the Company at the time of the delivery of such
notice, and properly addressed to the Company if addressed to the Board of
Directors, County Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
7.13 Termination
or Modification of Agreement by Reason of Changes in the Law, Rules or
Regulations.
The
Company is entering into this Agreement on the assumption that certain existing
tax laws, rules, and regulations will continue in effect in their current form.
If that assumption materially changes and the change has a material detrimental
effect on this Agreement, then the Company reserves the right to terminate
or
modify this Agreement accordingly, subject to obtaining the written consent
of
the Executive, which shall not be unreasonably withheld.
7.14 Advice
of Counsel.
Before
signing this Agreement, Executive either (x)
consulted with and obtained advice from Executive’s independent legal counsel
concerning the legal nature and operations of this Agreement, including its
impact on Executive’s rights, privileges, and obligations, or (y)
freely
and voluntarily decided not to have the benefit of consultation with and advice
of legal counsel.
Article
8
Administration
of Agreement
8.1 Plan
Administrator Duties.
This
Agreement shall be administered by a Plan Administrator consisting of the board
or such committee or the Chief Financial Officer of the Company or such
person(s) as the board shall appoint. The Executive may be a member of the
Plan
Administrator. The Plan Administrator shall also have the discretion and
authority to (x)
make,
amend, interpret, and enforce all appropriate rules and regulations for the
administration of this Agreement and (y)
decide
or resolve any and all questions, including interpretations of this Agreement,
as may arise in connection with the Agreement.
8.2
Agents.
In the
administration of this Agreement, the Plan Administrator may employ agents
and
delegate to them such administrative duties as it sees fit (including acting
through a duly appointed representative) and may from time to time consult
with
counsel, who may be counsel to the Company.
8.3 Binding
Effect of Decisions.
The
decision or action of the Plan Administrator with respect to any question
arising out of or in connection with the administration, interpretation, and
application of the Agreement and the rules and regulations promulgated hereunder
shall be final and conclusive and binding upon all persons having any interest
in the Agreement. No Executive or Beneficiary shall be deemed to have any right,
vested or nonvested, regarding the continued use of any previously adopted
assumptions, including but not limited to the discount rate and calculation
method described in section 1.1.
8.4 Indemnity
of Plan Administrator.
The
Company shall indemnify and hold harmless the members of the Plan Administrator
against any and all claims, losses, damages, expenses, or liabilities arising
from any action or failure to act with respect to this Agreement, except in
the
case of willful misconduct by the Plan Administrator or any of its
members.
8.5 Company
Information.
To
enable the Plan Administrator to perform its functions, the Company shall supply
full and timely information to the Plan Administrator on all matters relating
to
the date and circumstances of the retirement, Disability, death, or Separation
from Service of the Executive and such other pertinent information as the Plan
Administrator may reasonably require.
8.6 Compliance
with Section 409A
of the
Code. This Agreement shall at all times be administered in compliance with
the
requirements of §409A of the Code and any and all regulations thereunder,
including such regulations as may be promulgated after the Effective
Date.
8.7 Internal
Revenue Code
Section 280G, as amended.
The
Executive and Company acknowledge that for federal income tax purposes there
is
(i) the limitation on the deductibility by the Company and (ii) the imposition
of an excise tax on the Executive for certain change in control benefits under,
but not limited to section 280G of the Code and any successor to section 280G
of
the Code. If, after taking into account the Change in Control benefits in this
Agreement to Executive and all other compensation payments to or for the benefit
of the Executive that are included in determining the deductibility of such
payments under section 280G of the Code or any successor to section 280G of
the
Code, it is determined that section 280G of the Code and section 4999 of the
Code apply and result in an excess tax payable by Executive for such payments,
then the amount of the Change in Control Benefits shall be increased to include
a special lump sump payment payable to the Executive at the time of the Change
in Control (subject to section 2.7 herein) equal to 60% of the amount of the
Change in Control benefits that is included for purposes of determining the
deductibility of such payments under Code section 280G or any successor to
Code
section 280G.
In
Witness Whereof,
the
Executive and a duly authorized Company officer have signed this Amended and
Restated Salary Continuation Agreement as of the date first written
above.
The
Executive: The
Company:
By:/S/_David
A. Heaberlin___ By:
/S/
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Executive
Vice President, Chief
President and Chief Executive Officer
Financial
Officer & Treasurer