EXHIBIT 10.46
409A Amendment to the
First California Bank
Salary Continuation Agreement and
Split
Dollar Agreement for
Chong Guk Kum
First California Bank
(“Bank”) and Chong Guk Kum (“Executive”)
originally entered into the First California Bank Salary
Continuation Agreement (“Agreement”) and the First
California Bank Split Dollar Agreement (“SDA”), each on
March 27, 2003. Pursuant to Article 7 of the Agreement, the
Bank and the Executive hereby adopt this 409A Amendment to the
Agreement and the SDA, effective January 1, 2005.
This 409A Amendment is intended to
bring the Agreement and the SDA into full compliance with the
requirements of Internal Revenue Code Section 409A. Therefore,
the following changes shall be made:
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1.
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Article 1.1 of
the Agreement shall be amended to read in its entirety as
follows:
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“Change of Control”
means, a Change in Ownership, a Change in the Effective Control, a
Change in Assets or a termination of the Plan and distribution of
compensation deferred hereunder within twelve (12) months
after any of the foregoing events. For purposes of this Section,
“Company” shall include (i) the company for which
a Participant is performing services at the time of the Change in
Control, (ii) the company liable for the payment of the
deferred compensation (or all companies liable if more than one
company is liable), or a company that is a majority shareholder of
a company identified in (i) or (ii), or any company in a chain
of companies in which each company is a majority shareholder of
another company in the chain, ending in a company identified in
(i) or (ii). The events described in this section will not be
considered to occur, with respect to an employee of a participating
entity, if a participating entity is sold and the employee of the
participating entity continues employment with the Employer
subsequent to the sale. The events described in this section have
the following meanings:
(a) “Change in
Ownership” means the acquisition of stock by any one person
or persons acting in concert (a “group”) of the
Company, that when added to the stock of the person or group
constitutes more than 50% of the total fair market value or total
voting power of the stock of the Company. The acquisition of
additional stock by any person or group who are already considered
to own more than 50% of the stock of the Company shall not
constitute a change in ownership of the Company. An increase in the
percentage of stock owned by any person or group, as result of a
transaction in which the Company acquires its stock in exchange for
property will be treated as an acquisition of stock for purposes of
this section.
(b) “Change in the Effective
Control” means the occurrence of any of the following events,
despite the fact that the Company has not undergone a Change in
Ownership as described above:
(i) The acquisition by any person or
group (or acquisition during the 12-month period ending on the date
of the most recent acquisition by such person or persons) of
ownership of stock of the Company possessing 35% or more of the
total voting power of the stock, except if such acquisition is the
result of a change in “record ownership” and not a
change in “beneficial ownership;”
(ii) The replacement of a majority
of the Company’s board of directors during any 12-month
period by directors whose appointment or election is not endorsed
by a majority of the members of the Company’s board of
directors prior to the date of the appointment or election;
or
(iii) A transaction between the
Company and another company resulting in a Change of
Control.
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(iv) Provided that this section
shall not apply to the acquisition of additional control of the
Company by any person or group, if that person or group is
considered to effectively control the Company prior to the
acquisition.
(c) “Change in Assets”
means the acquisition by any person or group (or acquisition during
the 12-month period ending on the date of the most recent
acquisition by such person or persons) of assets from the Company,
that have a total gross fair market value equal to, or more than,
40% of the total gross fair market value of all the assets of the
Company immediately prior to such acquisition or acquisitions. A
transfer of assets by the Company will not be treated as a Change
in Assets if the assets are transferred to any of the following
(determined immediately after the transfer):
(i) A sha
