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NEVADA SECURITY BANK EXECUTIVE SUPPLEMENTAL COMPENSATION AGREEMENT

Executive Compensation Plan Agreement

NEVADA SECURITY BANK  EXECUTIVE SUPPLEMENTAL COMPENSATION AGREEMENT | Document Parties: BANK HOLDINGS | NEVADA SECURITY BANK You are currently viewing:
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BANK HOLDINGS | NEVADA SECURITY BANK

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Title: NEVADA SECURITY BANK EXECUTIVE SUPPLEMENTAL COMPENSATION AGREEMENT
Governing Law: Nevada     Date: 9/21/2005

NEVADA SECURITY BANK  EXECUTIVE SUPPLEMENTAL COMPENSATION AGREEMENT, Parties: bank holdings , nevada security bank
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NEVADA SECURITY BANK

EXECUTIVE SUPPLEMENTAL COMPENSATION AGREEMENT

This Agreement is made and entered into this 15th day of September, 2005, by and between Nevada Security Bank, a banking corporation organized under the laws of the State of Nevada (the “Employer”), and John Donovan, an individual (hereinafter referred to as the “Executive”).

RECITALS

WHEREAS, the Executive is an employee of the Employer and is serving as its Executive Vice President and Chief Credit Officer;

WHEREAS, the Executive’s experience and knowledge of the affairs of the Employer and the banking industry are extensive and valuable;

WHEREAS, it is deemed to be in the best interests of the Employer to provide the Executive with certain supplemental executive benefits in the form of salary continuation after retirement or certain other events, 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.

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

 

1.0

 

TERMS AND DEFINITIONS .

1.1 Annual Benefit . The term “Annual Benefit” shall mean the amount equal to the product of the Executive’s Final Average Annual Compensation times the Benefit Level Percentage times the Applicable Percentage, which amount shall be reduced to the extent required: (i) under the other provisions of this Agreement; (ii) by reason of the lawful order of any regulatory agency or body having jurisdiction over the Employer; and (iii) in order for the Employer to properly comply with any and all applicable state and federal laws, including, but not limited to, income, employment and disability income tax laws (e.g., FICA, FUTA, SDI).

1.2 Applicable Percentage . Unless otherwise defined, The term “Applicable Percentage” shall mean that percentage listed on Schedule “A” attached hereto which is adjacent to the number of complete years (with a “year” being the performance of personal services for or on behalf of the Employer as an employee for a period of 365 days) which have elapsed starting from the Effective Date of this Agreement and ending on the date payments are to first begin under the terms of this Agreement. In the event that Executive’s employment with Employer is terminated other than by reason of disability, Retirement, Early Retirement or voluntary termination on the part of Executive, Executive shall be deemed for purposes of determining the number of complete years to have completed a year of service in its entirety for any partial year of service after the last anniversary date of the Effective Date during which the Executive’s employment is terminated.

1.3 Benefit Level Percentage . The term “Benefit Level” shall mean 50%.

1.4 Board . The “Board” shall mean the Board of Directors of Nevada Security Bank.

1.5 Change In Control . A “Change in Control” shall mean the earliest occurrence of one of the following events:

 

A.

 

A Change In Ownership of The Bank Holding or the Employer .

A change in ownership of The Bank Holding (TBH) or the Employer occurs on the date that any person (or group of persons) acquires ownership of stock of TBH or 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 TBH or the Employer, respectively.

 

B.

 

A Change in Effective Control of TBH or the Employer .

A change in effective control of TBH or 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 TBH or the Employer possessing thirty-five percent (35%) or more of the total voting power of the stock of TBH or the Employer, respectively; or

 

 

2.

 

A majority of members of TBH’s or 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 TBH’s or the Employer’s Board, respectively prior to the date of the appointment or election.

 

 

C.

 

A Change in Ownership of a Substantial Portion of TBH’s or the Employer’s Assets .

A change in the ownership of a substantial portion of TBH’s or 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 TBH or 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 TBH or the Employer, respectively immediately prior to such acquisition or acquisitions.

For the purpose of this Agreement, transfers of the outstanding voting securities of TBH or the Employer made on account of deaths or gifts, transfers between family members, former spouses or transfers to a qualified retirement plan maintained by the TBH or the Employer shall not be considered in determining whether there has been a Change in Control.

1.6 Code . The “Code” shall mean the Internal Revenue Code of 1986, as amended.

1.7 Committee . The “Committee” means the Governance Committee of the Board of Directors of Nevada Security Bank.

1.8 Compensation . The term “Compensation” means the base salary and cash bonuses paid to Executive by Employer that are considered to be “wages” for purposes of federal income tax withholding and includes any benefits under the supplemental insurance plan agreement. Compensation shall be calculated before reduction for any amounts deferred pursuant to any deferral arrangement by which Executive can defer the current receipt of income. Compensation does not include expense reimbursements or any form of non-cash compensation or benefits.

1.9 Disability/Disabled . The term “Disability” or “Disabled” shall mean either that the Executive is (i) unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan sponsored by the Employer.

1.10 Early Retirement . The term “Early Retirement” shall mean the Retirement of the Executive on a date which occurs after the date Executive reaches age 62 and prior to the date Executive reaches age 65.

1.11 Effective Date . The term “Effective Date” shall mean September 15, 2005.

1.12 ERISA . The term “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.

1.13 Final Average Annual Compensation. Unless otherwise defined, “Final Average Annual Compensation” means the higher of (i) the average annual Compensation of Executive during the last 36 full consecutive calendar months of Executive’s employment with Employer or (ii) the average annual Compensation of Executive during Executive’s employment with Employer.

1.14 Involuntary Termination . The term “Involuntary Termination” shall mean the termination of the Executive by the Employer for any reason other than a Change in Control, Death, Disability or Termination for Cause.

1.15 Retirement. The term “Retirement” or “Retires” shall refer to the date which the Executive acknowledges in writing to Employer to be the last day the Executive will provide any significant personal services, whether as an employee, director 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 10 hours of personal services rendered to one or more individuals or entities in any 30 day period.

1.16 Termination for Cause . The term “Termination for Cause” shall mean termination of employment of the Executive with the Employer by reason of any of the following:

 

A.

 

Dishonest or fraudulent conduct by the Executive with respect to the performance of Executive’s duties with Bank or the Bank’s parent corporation, TBH;

 

 

B.

 

Conduct by the Executive that materially discredits Bank, TBH or any of TBH’s subsidiaries or is materially detrimental to the reputation of the Bank, TBH or any of its subsidiaries, including but not limited to conviction of or a plea of nolo contendere by the Executive of a felony or crime involving moral turpitude;

 

 

C.

 

Executive’s willful misconduct or gross negligence in performance of Executive’s duties, including but not limited to Executive’s refusal to comply in any material respect with the legal directives of the Executive’s immediate supervisor or the Board of Directors, if such misconduct or negligence has not been remedied or is not being remedied to the Board’s reasonable satisfaction within thirty (30) days after written notice, including a detailed description of the misconduct or negligence, has been delivered by the Board to the Executive;

 

 

D.

 

An order or directive from a state or federal banking regulatory agency requesting or requiring removal of the Executive or a finding by any such agency that the Executive’s performance threatens the safety or soundness of Bank, TBH or any of its subsidiaries;

 

 

E.

 

Material breach of Executive’s fiduciary duties to Bank if such breach has not been remedied or is not being remedied to the Board’s reasonable satisfaction within thirty (30) days after written notice, including a detailed description of the breach, has been delivered by the Board to the Executive;

 

 

F.

 

State and/or Federal banking regulators request or order termination of this Agreement; or

 

 

G.

 

The Executive commits any act which could cause termination of Coverage under the Bank’s Blanket Bond as to the Executive, as distinguished from termination of such coverage as to the Bank as a whole.

1.15 Voluntary Termination . The term “Voluntary Termination” shall mean voluntary resignation of employment by the Executive prior to Early Retirement or prior to Retirement at or after age 65.

2.0 SCOPE, PURPOSE AND EFFECT.

2.1. Contract of Employment . Although this Agreement is intended to provide the Executive with an additional incentive to remain in the employ of the Employer, this Agreement shall not be deemed to constitute a contract of employment between the Executive and the Employer nor shall any provision of this Agreement restrict or expand the right of the Employer to terminate the Executive’s employment. This Agreement shall have no impact or effect upon any separate written Employment Agreement which the Executive may have with the Employer, it being the parties’ intention and agreement that unless this Agreement is specifically referenced in said Employment Agreement (or any modification thereto), this Agreement (and the Employer’s obligations hereunder) shall stand separate and apart and shall have no effect upon, nor be affected by, the terms and provisions of said Employment Agreement.

2.2. Fringe Benefit . The benefits provided by this Agreement are granted by the Employer as a fringe benefit to the Executive and are not a part of any salary reduction plan or any arrangement deferring a bonus or a salary increase. The Executive has no option to take any current payments or bonus in lieu of the benefits provided by this Agreement.

3.0 BENEFITS PAYABLE.

3.1 Benefits Upon Retirement . In the event the Executive elects to retire and Retires from active employment with the Employer on a date after Executive attains age 65, then the Executive shall be entitled to be paid the Annual Benefit each year for the remainder of Executive’s life with the Applicable Percentage being based on Executive’s years of service as of the Executive’s Retirement. The Annual Benefit, shall be paid in substantially equal monthly installments on the first day of each month, beginning with the month following the month in which the Executive Retires and continuing until the Executive’s death. In the event that (i) the Participant is a “Key Employee,” as defined in Code section 416, and (ii) the Employer is publicly traded at the time of Executive’s Retirement, the benefit payable under this subsection shall commence on the first day of the seventh (7th) month following Participant’s termination of Employment. No payments shall be made to Executive, beneficiary or estate pursuant to this Section 3.1 after Executive’s death.

3.2 Benefits Upon Early Retirement Date. If the Executive elects to retire from active employment and retires on a date after Executive attains age 62 and prior to age 65, then the Executive shall be entitled to be paid the Annual Benefit each year for the remainder of Executive’s life with the Applicable Percentage being based on Executive’s years of service as of the date of Executive’s Retirement less the product of 6% times the number of full and partial years that remain before Executive attains age 65. For example, if the Executive were to retire at age 62 and 7 months and had 7 years of service completed, the Executive’s Applicable Percentage would be 70% less 18% or 52%. The Annual Benefit, shall be paid in substantially equal monthly installments on the first day of each month, beginning with the month following the month in which the Executive elects Early Retirement and Retires and continuing until the Executive’s death. In the event that (i) the Participant is a “Key Employee,” as defined in Code section 416, and (ii) the Employer is publicly traded at the time of Executive’s Early Retirement, the benefit payable under this subsection shall commence on the first day of the seventh (7th) month following Participant’s termination of Employment. No payments shall be made to Executive, beneficiary or estate pursuant to this Section 3.2 after Executive’s death.

1

3.3 Benefit Payments in the Event of Disability. In the event the Executive becomes Disabled while actively employed by the Employer at any time after the effective date of this Agreement, but prior to Retirement, the Executive shall be paid the Annual Benefit each year for the remainder of Executive’s life in substantially equal monthly installments on the first day of each month, beginning with the month following the month in which the Executive becomes Disabled and continuing until the Executive’s death. For purposes of this Section 3.3, the Annual Benefit shall be determined with the with the Final Average Annual Compensation being equal to greater of (i) the average annual Compensation of Executive during the last 36 full consecutive calendar months of Executive’s employment with Employer or (ii) the average annual Compensation of Executive during Executive’s employment with Employer. No payments shall be made to Executive, beneficiary or estate pursuant to this Section 3.3 after Executive’s death.

3.4 Benefits Payable Upon a Change in Control. In the event of a Change in Control then the Executive shall be entitled to be paid the Annual Benefit (determined with the Applicable Percentage being equal to 100% and the Final Average Annual Compensation being equal to Executive’s average annual Compensation for the 36 full consecutive calendar months immediately prior to the effective date of the Change in Control) each year for the remainder of Executive’s life or 20 years whichever is less, on a monthly basis beginning on the first day of each month, beginning with the month following the Change in Control and continuing to the earlier of Executive’s death or 20 years. In the event of Executive’s death prior to receiving the full benefit payable under this Section 3.4, the Executive’s legal representative shall be paid the remaining Annual Benefit as if the Executive had survived to the date of the final payment provided for by this Section 3.4. If Executive is entitled to receive benefits pursuant to this Section 3.4, Executive shall not be entitled to payment of benefits under any other section of this Agreement.

3.5 Termination Without Cause . In the event the Executive’s employment is terminated, then the amounts payable pursuant to this Agreement shall be as follows:

(a) If Termination Occurs Prior to Executive’s Having 3 Full Years of Service with Employer: If the Executive’s Employment is terminated by the Employer prior to Executive having 3 full years of service with Employer, then the Executive and Employer agree that no payments shall be made to Executive pursuant to this Agreement.

(b) If Termination Occurs After the Executive Has 3 or more Full Years of Service: If the Executive’s Employment is terminated by the Employer on or after the Executive completes 3 or more full years of service with the Employer and such termination of Executive was not Termination for Cause, death, disability, a Change in Control or Retirement, then the Employer and Executive agree that Executive shall receive the Annual Benefit each year for the remainder of Executive’s life beginning with the month following the month in which the Executive attains 65 years of age, or the earlier effective date elected by the Executive, which alternate date satisfies the requirements relating to Early Retirement. In the event that the Executive elects to begin receiving payments at a date which satisfies the requirements relating to Early Retirement, then the Annual Benefit shall be reduced by the product of 6% times the Benefit Level Percentage for each full and partial years that remain between the earlier effective date elected and the date Executive attains age 65.

3.6 Voluntary Termination by the Executive. In the event the Executive’s employment is pursuant to Executive’s Voluntary Termination before Early Retirement or Retirement, then the amounts payable pursuant to this Agreement shall be as follows:

(a) If Termination Occurs Prior to the Executive’s Having 10 Years of Service with Employer : In the event the Executive’s employment is pursuant to Executive’s Voluntary Te


 
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