Attached files
| file | filename |
|---|---|
| 8-K - WEST COAST BANCORP /NEW/OR/ | v208214_8k.htm |
| EX-10.1 - WEST COAST BANCORP /NEW/OR/ | v208214_ex10-1.htm |
Exhibit
99.2
WEST
COAST BANK
SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
(SERP)
Effective
Date: August 1, 2003
Restated
January 1, 2011
THIS SERP
is adopted by WEST COAST BANK (the “Bank”), WEST COAST BANCORP (“Bancorp”), its
parent holding company, (collectively referred to as the “Company”) and ROBERT
D. SZNEWAJS (the “Executive”).
ARTICLE
1
PURPOSE
1.1 Dual
Purposes. This SERP is
intended to:
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(a)
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Assist
in assuring the Executive’s continued service to the Company by providing
supplemental retirement benefits that are competitive with the Company’s
peers; and
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(b)
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Discourage
the Executive from engaging in any competitive business after the
Executive leaves the Company.
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1.2
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Top-Hat
Plan Status. This is an
unfunded plan maintained primarily for the purpose of providing deferred
compensation for the Executive, who is a member of a select group of
management or highly compensated employees. As such, this SERP
is intended to qualify as a “top-hat plan” exempt from Part 2 (minimum
participation and vesting standards), Part 3 (minimum funding standards)
and Part 4 (fiduciary responsibility provisions) of Title I of the
Employee Retirement Income Security Act of 1974 (“ERISA”). The
provisions of the SERP shall be interpreted and administered according to
this intention.
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ARTICLE
2
DEFINITIONS
Words and
phrases appearing in this SERP with initial capitalization are defined terms
that have the meanings stated below. Words appearing in the following
definitions which are themselves defined terms are also indicated by initial
capitalization.
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2.1
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Accrual
Balance means the benefit liability accrued by the Company under
Article 5 which shall include the benefit accrued under this SERP before
the Effective Date of
this Restatement.
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Page 1
SERP
(Sznewajs)
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2.2
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Accrual
Completion Date means the date the Accrual Balance is scheduled to
be fully accrued by the Company.
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2.3
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Beneficiary
means the person or persons or estate, trust or charitable organization
entitled under Article 4 to receive the death benefit payable under
this SERP.
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2.4
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Change
In Control Agreement means the “Change In Control Agreement” as
restated December 30, 2008, between the Executive and the Company, as
amended.
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2.5
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Compensation
Committee means the Compensation and Personnel Committee of
Bancorp’s Board of Directors.
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2.6
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Effective
Date means the original effective date as first stated above
(immediately below the title of this SERP), however, the Effective
Date of this SERP as restated is January 1,
2011.
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2.7
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Termination
Event means the termination of the Executive’s employment under
circumstances that entitle the Executive to benefits under the Change In
Control Agreement.
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2.8
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Termination
for Cause means that the Company has terminated the Executive’s
employment for “cause” as defined in the Change In
Control Agreement.
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2.9
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Termination
of Employment means that the Executive’s employment with the
Company has terminated for any reason, voluntary or
involuntary.
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ARTICLE
3
BENEFITS
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3.1
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Fully
Accrued Benefit. Effective
January 1, 2011, upon Termination of Employment on or after the
Accrual Completion Date, other than a Termination for Cause, the Executive
shall be entitled to receive a benefit equal to the present value of a
stream of annual installment payments, each in the amount of 45% of the
Executive’s annual base salary as in effect January 1, 2011, payable
for 15 years and commencing on the Accrual Completion
Date. Present value shall be determined using a 6.0%
discount rate.
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3.2
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Partially
Accrued Benefits.
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(a)
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Amount of
Benefit. Upon Termination of Employment before the
Accrual Completion Date for any reason other than death, Termination for
Cause or a Termination Event, subject to adjustment under
subsection (b) below, the Executive shall be entitled to receive the
Accrual Balance as determined as of the first day of the month in which
the Termination of Employment
occurs.
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Page
2 SERP
(Sznewajs)
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(b)
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Benefit
Increase. In its sole discretion, the Compensation
Committee may, from time to time as of any anniversary of the Effective
Date of this Restatement, separately increase the amount of the benefit
payable under subsection (a) above without increasing the benefit
payable under Section 3.1.
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3.3
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Death
Benefit. If
the Executive dies before the Accrual Completion Date, the Executive’s
Beneficiary shall be paid the fully accrued benefit that would have been
payable under Section 3.1 had the Executive had a Termination of
Employment on the Accrual Completion
Date.
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3.4
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Change
In Control Benefit. If a
Termination Event occurs before the Accrual Completion Date, the Company
will pay the Executive the fully accrued benefit that would have been
payable under Section 3.1 had the Executive had a Termination of
Employment on the Accrual Completion
Date.
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3.5
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Form
and Time of Payment.
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(a)
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Payment
of any type of benefit under this Plan shall be made in a lump sum
cash payment.
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(b)
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Subject
to the six-month delay under Section 3.6, the benefit payment shall be
paid, without interest, within 60 days of the date of the occurrence of
the event entitling the Executive to the benefit
payment.
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3.6
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Six-Month
Delay for Distributions. Except to
the extent a benefit payment is exempt from the requirements of Code §
409A, the payment shall not be made before the date which is six months
after the date of the Executive’s Termination of Employment or, if earlier
than the end of the six-month period, the date of the Executive’s
death.
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ARTICLE
4
BENEFICIARIES
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4.1
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Designation
of Beneficiary. The Executive may
designate the Beneficiary or Beneficiaries (who may be designated
concurrently or contingently) to receive the death benefit under the
SERP. The designation is subject to the following terms
and conditions:
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(a)
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The
beneficiary designation must be in a form satisfactory to the Compensation
Committee and must be signed by the
Executive.
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(b)
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A
beneficiary designation form shall be effective upon receipt by the
Compensation Committee or its designee, provided it is received before the
Executive’s death.
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Page
3 SERP
(Sznewajs)
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(c)
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The
Executive may revoke a previous beneficiary designation without the
consent of the previously designated Beneficiary. This
revocation is made by filing a new beneficiary designation form with the
Compensation Committee or its designee, and shall be effective upon
receipt.
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(d)
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A
beneficiary designation made before the Effective Date of this Restatement
that complied with the rules in subsections (a), (b) and (c) above shall
continue in effect unless and until a new beneficiary designation is made
by the Executive.
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4.2
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Divorce. A divorce
will automatically revoke the portion of a beneficiary designation
designating the former spouse as a Beneficiary. The former
spouse will be a Beneficiary under this SERP only if a new such
beneficiary designation form naming the former spouse as a beneficiary is
filed after the date the dissolution decree is
entered.
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4.3
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Disclaimers. If a
Beneficiary disclaims a death benefit, the benefit will be paid as if the
Beneficiary had predeceased the
Executive.
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4.4
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Default
Beneficiary. If, at the
time of the Executive’s death, the Executive has failed to designate a
Beneficiary, the Executive’s beneficiary designation has become completely
invalid under the provisions of this Article or there is no surviving
Beneficiary, payment of the death benefit will be made in the following
order of priority:
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(a)
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To
the Executive’s spouse, if living;
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(b)
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To
the Executive’s surviving children, in equal shares;
or
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(c)
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To
the Executive’s estate.
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ARTICLE
5
ACCRUAL
BALANCE
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5.1
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Compensation
Liability. The Accrual
Balance shall be equal to the financial statement compensation liability
accrued by the Company (under Section 5.2) as of any applicable
determination date (as defined in Section 5.3) for its payment obligation
under this SERP.
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5.2
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Accrual
Calculation.
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(a)
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The
value of the Accrual Balance shall equal the sum of
the:
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(1)
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Principal
accrual (service cost); plus
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(2)
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Interest
accrual at 6.0%.
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(b)
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The
Accrual Balance shall be fully accrued on April 1,
2013.
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Page
4 SERP
(Sznewajs)
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(c)
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The
value shall be determined by using Generally Accepted Accounting
Principles applying APB 12 as amended by FAS
106.
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5.3
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Determination
Dates. The Accrual
Balance shall be determined as of the first day of each
month.
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5.4
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Reporting. The
Compensation Committee will report the Accrual Balance to the Executive at
least annually and within a reasonable period of time not to exceed
30 days after the date of the Termination of Employment if the
Executive is to be paid the partially accrued benefit under
Section 3.2.
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ARTICLE
6
FORFEITURE
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6.1
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Grounds
For Forfeiture.
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(a)
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The
Executive will forfeit any benefits payable under this SERP upon a
Termination for Cause.
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(b)
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The
Executive will forfeit any benefits payable under this SERP if the
Executive violates the noncompetition restrictions of
Section 6.2.
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6.2
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Noncompetition
Restrictions.
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(a)
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Definitions. For
purposes of this section, the following terms have the meanings stated
below:
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(1)
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“Banking
institution” means any state
or national bank, state or federal savings and loan association, mutual
savings bank or state or federal credit union or any of their holding
companies.
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(2)
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“Competing
activities” mean any activities that are competitive with the
business activities of Bancorp, the Bank or any of their subsidiaries as
conducted at the commencement of, or during the term of, the
restricted period.
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(3)
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“Financial
institution” means any banking institution (as defined in
paragraph (1) above), trust company or mortgage company regardless
of:
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(A)
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Its
legal form of organization; or
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(B)
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Whether
it is in existence or is in
formation.
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Page
5 SERP
(Sznewajs)
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(4)
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“Restricted
area” means any county in Oregon or Washington in which Bancorp,
the Bank or any of their subsidiaries
either:
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(A)
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Has
a branch or other office at the commencement of the restricted period;
or
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(B)
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Has
decided to open a branch or other office during the restricted period,
provided that fact has been communicated to the Executive before the
Executive’s Termination of
Employment.
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(5)
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“Restricted
period” means a period of:
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(A)
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24
months from the date of the Executive’s Termination of Employment;
or
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(B)
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36
months from the date of the Executive’s Termination Event if the Change in
Control Benefit under Section 3.4 is
payable.
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(6)
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“Subsidiaries”
mean any current or future subsidiary of Bancorp or the Bank, regardless
of whether it is 100% owned by Bancorp or the
Bank.
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(b)
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Restrictions. The
Executive agrees that, during the restricted period, the Executive will
not, directly or indirectly:
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(1)
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Except
as provided in subsection (c) below, be employed by or provide services to
any financial institution that engages in competing activities in the
restricted area, whether as an employee, officer, director, agent,
consultant, promoter or in any similar position, function or
title;
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(2)
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Have
any ownership or financial interest in any financial institution that
engages in competing activities in the restricted area that violates the
Company’s then current published ethical standards on ownership interests
in competing businesses;
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(3)
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Induce
any employee of Bancorp, the Bank or their subsidiaries to terminate their
employment with Bancorp, the Bank or their
subsidiaries;
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(4)
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Hire
or assist in the hiring of any employee of Bancorp, the Bank or their
subsidiaries for or by any financial institution that is not affiliated
with Bancorp, the Bank or their subsidiaries;
or
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(5)
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Induce
any person or entity (other than the Executive’s relatives or entities
controlled by them) to terminate or curtail its business or contractual
relationships with the Bank, Bancorp or their
subsidiaries.
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Page
6 SERP
(Sznewajs)
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(c)
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Exceptions. Regardless
of the restriction in subsection (b)(1) above, the Executive may be
employed outside the restricted area as an employee, officer, agent,
consultant or promoter of a financial institution that engages in
competing activities in the restricted area, provided the Executive will
not:
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(1)
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Act
within the restricted area as an employee or other representative or agent
of that financial institution;
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(2)
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Have
any responsibilities for that financial institution’s operations within
the restricted area; or
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(3)
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Directly
or indirectly violate the restrictions of subsection (b)(3),
(4) and (5) above.
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(d)
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Forfeiture. If
the Executive breaches the restrictions under subsection (b) above, the
Executive will:
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(1)
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Forfeit
any benefits payable under this SERP that were unpaid as of the date of
the breach; and
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(2)
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Promptly
repay the Company, upon demand, any payments that were made. If
the Executive does not repay that amount within fifteen (15) days after
the date of the demand, the Executive will also pay interest on that
amount at the rate of 9% per annum.
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ARTICLE
7
CLAIMS
AND APPEALS PROCEDURE
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7.1
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Claims
Procedure.
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(a)
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Routine
Payments. The Compensation Committee may authorize
distribution of payments to the Executive or the Executive’s Beneficiary
even though a formal claim has not been
filed.
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(b)
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Formal
Claims.
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(1)
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Mandatory
Procedure. Any claim that the Executive or a Beneficiary
or anyone claiming on behalf of or through the Executive or a Beneficiary
may make under ERISA or under any other applicable federal or state law
must first be brought as a formal claim under this section. If
that claim is denied, it will be subject to the claims appeal procedures
of Section 7.2.
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(2)
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Form and
Content of Claim. The claim shall be in any form
reasonably acceptable to the Compensation Committee and must state the
basis of the claim and also authorize the Compensation Committee and its
designees to conduct any examinations necessary to determine the validity
of the claim and take any steps necessary to facilitate the benefit
payment.
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Page
7 SERP
(Sznewajs)
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(3)
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Submissions
by Claimant. The claimant shall file the claim with the
Executive Vice-President, Human Resources. The claimant may
also submit written comments, documents, records and other information
relating to the claim.
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(4)
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Access to
Information. The claimant will be provided, upon request
and free of charge, reasonable access to, and copies of, all
nonconfidential or nonprivileged Company documents, records and other
information relevant to the claim.
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(5)
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Authorized
Representative. The claimant may be represented by an
individual authorized to act on behalf of the claimant. A
representative’s authorization to act on behalf of the claimant must be
established to the Compensation Committee’s reasonable
satisfaction.
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(6)
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Review and
Recommendation. The claim shall be reviewed by the
Company’s Executive Vice-President, Human Resources and the Chief
Executive Officer (if that office is not held by the Executive at that
time), who shall make a recommendation to the Compensation
Committee.
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(c)
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Timeline. The
Compensation Committee shall make a determination on the claim within
90 days after the date the claimant filed it with the Executive
Vice-President, Human Resources. If more time is required for a
special case, the Compensation Committee may take up to an additional 90
days to render a determination, but the claimant must be notified of the
need for the extension of time within the initial 90-day
period. This notification will explain the special
circumstances requiring the extension of time as well as the date by which
a determination is expected.
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(d)
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Explanation of
Denial. If a claim is wholly or partially denied, the
Compensation Committee shall provide the claimant with a notice of the
decision, written in a manner calculated to be understood by the claimant,
containing the following
information:
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(1)
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The
specific reason or reasons for the denial and a discussion of why the
specific reason or reasons apply;
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(2)
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References
to the specific provisions of this SERP upon which the denial was
based;
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(3)
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A
description of any additional material or information necessary for the
claimant to perfect the claim; and
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(4)
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An
explanation of the claims appeals procedures under this
SERP.
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(e)
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Deemed
Denial. If a determination is not furnished to the
claimant within 90 days of the date the claim was filed—or 180 days
if it is a special case—the claim shall be deemed to be
denied.
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Page
8 SERP
(Sznewajs)
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(f)
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Appeal of
Denial. If the claimant disagrees with the denial, the
claimant’s sole remedy shall be to proceed with the claims appeal
procedures under Section 7.2.
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7.2
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Claims
Appeal Procedures.
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(a)
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Written
Request. If a claim is denied in whole or in part, the
claimant or the claimant’s authorized representative may submit a written
request for a review of the denial, including a statement of the reasons
for the review.
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(b)
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Deadline. This
request must be filed with the Compensation Committee within 60 days after
the claimant receives notice of the denial. This time limit may
be extended by the Compensation Committee if an extension appears to be
reasonable in view of the nature of the claim and the pertinent
circumstances.
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(c)
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Conduct of
Appeal. Upon receipt of such a request, the Compensation
Committee shall afford the claimant an opportunity to review relevant
documents and to submit issues and comments in writing. The
Compensation Committee may hold a hearing or conduct an independent
investigation. The Compensation Committee will consider all of
the claimant’s submissions regardless of whether they were submitted or
considered in the initial determination of the
claim.
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(d)
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Timeline. A
decision on the review shall be rendered by the Compensation Committee not
later than 60 days after receipt of the claimant’s request for the
review. If more time is required for a special case, the
Compensation Committee may take up to an additional 60 days to render a
decision, but the claimant must be notified of the need for the extension
of time within the initial 60-day period. This notification
shall explain the special circumstances (such as the need to hold a
hearing) which require the extension of
time.
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(e)
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Decision on
Appeal. The decision shall be written in a manner
calculated to be understood by the claimant and shall
include:
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(1)
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Specific
reasons for the decision;
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(2)
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Specific
references to the provisions of this SERP on which the decision
is based;
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(3)
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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 (as defined in applicable ERISA regulations) to
the claimant’s claim for benefits;
and
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(4)
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A
statement of the claimant’s right to bring a civil action under
ERISA § 502(a), to the extent such an action is not preempted by
the mandatory arbitration provision of Section
9.10.
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Page
9 SERP
(Sznewajs)
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(f)
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Deemed
Denial. If the determination on the appeal is not
furnished to the claimant within 60 days—or 120 days if it is a special
case—the appeal shall be deemed to be
denied.
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(g)
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Exhaustion of Appeal Process
Required. A claimant whose claim has been denied is
required to exhaust the claims appeal procedures set forth in this section
before commencing any arbitration or legal
action.
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7.3
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Discretionary
Authority; Standards of Proof and Review; Record
on Review.
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(a)
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The
Compensation Committee is the “named fiduciary” for purposes of
ERISA. This SERP confers full discretionary authority on the
Compensation Committee with regard to the administration of this SERP,
including the discretion to:
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(1)
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Make
findings of fact and determine the sufficiency of the evidence presented
regarding a claim; and
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(2)
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Interpret
and construe the provisions of this SERP and related administrative
documents, if any, (including words and phrases that are not defined in
this SERP or those documents) and correct any defect, supply any omission
or reconcile any ambiguity or
inconsistency.
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(b)
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A
decision by the Compensation Committee is required to be supported by
substantial evidence only. That is, proof by a preponderance of
the evidence, clear and convincing evidence or beyond a reasonable doubt
is not required.
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(c)
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A
court of law or arbitrator reviewing any decision of the Compensation
Committee, including those relating to the interpretation of this SERP or
a claim for benefits under this SERP, shall be required to use the
arbitrary and capricious standard of review. That is, the
Compensation Committee’s determination may be reversed only if it was made
in bad faith, is not supported by substantial evidence or is erroneous as
to a question of law.
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(d)
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In
conducting its review of the Compensation Committee’s decision, a court or
arbitrator shall be limited to the record of documents, testimony and
facts presented to or actually known to the Compensation Committee at the
time the decision was made.
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Page
10 SERP
(Sznewajs)
ARTICLE
8
AMENDMENT
AND TERMINATION
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8.1
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By
Mutual Agreement. Except as
provided in Section 8.2, this SERP may be amended or terminated only by a
written agreement signed by the Company and
the Executive.
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8.2
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By
the Company.
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(a)
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Subject
to the restrictions in subsection (b) below, the Company may
unilaterally amend or terminate this SERP at any time if in the opinion of
the Company’s counsel or accountants, as a result of legislative, judicial
or regulatory action, continuation of the SERP
would:
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(1)
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Cause
benefits to be taxable to the Executive before their actual receipt;
or
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(2)
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Result
in material financial penalties or other materially detrimental
ramifications to the Company (other than the financial impact of paying
the benefits).
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(b)
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Except
as required by law, banking regulatory requirements or financial
accounting requirements, an amendment or termination under
subsection (a) above may not
reduce:
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(1)
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The
amount of the Executive’s Accrual Balance as determined as of the later
of:
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(A)
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The
effective date of the amendment or termination;
or
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(B)
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The
date it is adopted or approved; or
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(2)
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The
amount of the benefit payable if the Executive’s benefit was in pay status
as of the earlier of:
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(A)
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The
effective date of the amendment or termination;
or
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(B)
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The
date it is adopted or approved.
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(c)
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Except
as required by law, banking regulatory requirements or financial
accounting requirements, upon the termination of this SERP under
subsection (a) above:
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(1)
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The
Executive’s Accrual Balance will be frozen as of the
later of:
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(A)
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The
effective date of the amendment or termination;
or
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(B)
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The
date it is adopted or approved;
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Page
11 SERP
(Sznewajs)
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(2)
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Interest
will be credited on the Executive’s frozen Accrual Balance at an annual
rate of 6% compounded monthly; and
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(3)
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The
Company may either:
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(A)
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Hold
and disburse the Executive’s frozen Accrual Balance (as adjusted under
paragraph (2) above) in accordance with the otherwise applicable terms and
conditions of this SERP; or
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(B)
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Disburse
that amount in a lump sum at such earlier date as is permissible under
Treas. Reg. § 1.409A-3(j)(ix).
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ARTICLE
9
GENERAL
PROVISIONS
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9.1
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Administration. The
Compensation Committee shall have all powers necessary or desirable to
administer this SERP, including but not limited
to:
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(a)
|
Establishing
and revising the method of accounting for the
SERP;
|
|
|
(b)
|
Maintaining
a record of benefit payments;
|
|
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(c)
|
Establishing
rules and prescribing any forms necessary or desirable to administer the
SERP;
|
|
|
(d)
|
Interpreting
the provisions of the SERP; and
|
|
|
(e)
|
Delegating
to others certain aspects of the Compensation Committee’s managerial and
operational responsibilities, including employing advisors and delegating
ministerial duties.
|
|
9.2
|
Receipt
and Release for Payments.
|
|
|
(a)
|
The
Compensation Committee may require the recipient of a payment, as a
condition precedent to the payment, to execute a receipt and, in the case
of a payment in full, a release for the payment. The receipt
and the release shall be in a form satisfactory to the Compensation
Committee.
|
|
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(b)
|
Payment
may be made by a deposit to the credit of the Executive or a Beneficiary,
as applicable, in any bank or trust
company.
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Page
12 SERP
(Sznewajs)
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(c)
|
Payment
may be made to the individual or institution maintaining or having custody
of the Executive or Beneficiary, as applicable, if the Compensation
Committee receives satisfactory evidence
that:
|
|
|
(1)
|
A
person entitled to receive any benefit under this SERP is, at the time the
benefit is payable, physically, mentally or legally incompetent to receive
payment and provides a valid receipt for
it;
|
|
|
(2)
|
An
individual or institution is maintaining or has custody of that
person; and
|
|
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(3)
|
No
guardian, custodian or other representative of the estate of that person
has been appointed.
|
|
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(d)
|
The
receipt of the recipient or a canceled check shall be a sufficient voucher
for the Company. The Company is not required to obtain from the
recipient an accounting for the
payment.
|
|
|
(e)
|
If
a dispute arises over a distribution, payment may be withheld until the
dispute is determined by a court of competent jurisdiction or settled, to
the satisfaction of the Compensation Committee, by the parties
concerned. The Compensation Committee may require a hold
harmless agreement on behalf of the Company and the SERP before making
payment.
|
|
9.3
|
Other
Compensation and Terms of Employment. This SERP
is not an express or implied employment agreement. Accordingly,
other than providing for certain benefits payable upon a Termination of
Employment, this SERP will not affect the determination of any
compensation payable by the Company to the Executive, nor will it affect
the other terms of the Executive’s employment with the Company. The
specific arrangements referred to in this SERP are not intended to exclude
or circumvent any other benefits that may be available to the Executive
under the Company’s employee benefit or other applicable plans, upon the
Executive’s Termination of
Employment.
|
|
9.4
|
Withholding.
|
|
|
(a)
|
Income
Tax. Applicable federal, state and local income tax
withholding will be withheld from all payments made under this
SERP.
|
|
|
(b)
|
FICA. To the
extent allowable under applicable
regulations:
|
|
|
(1)
|
The
present value of the vested benefits under this SERP will be taken into
account as FICA wages in the year they become
vested;
|
|
|
(2)
|
Present
value will be determined using reasonable actuarial equivalency factors
acceptable to the Compensation
Committee;
|
Page 13
SERP
(Sznewajs)
|
|
(3)
|
The
employee portion of each year’s FICA liability will be deducted from the
Executive’s other cash compensation for that year;
and
|
|
|
(4)
|
FICA
will not be deducted from any payments made under this
SERP.
|
|
9.5
|
Unfunded
Arrangement.
|
|
|
(a)
|
The
Company’s payment obligation under this SERP is purely contractual and is
not funded or secured in any manner by any asset, pledge or encumbrance of
the Company’s property.
|
|
|
(b)
|
This
SERP is not intended to create, and should not be construed as creating,
any trust or trust fund. The benefits accrued under this SERP
and any assets acquired by the Company to finance its payment obligations
under this SERP shall not be held in a trust (other than a grantor trust
of the Company), escrow or similar fiduciary
capacity.
|
|
|
(c)
|
Any
insurance policy on the Executive’s life the Company may acquire to assist
it in financing its obligations under this SERP is a general asset of the
Company and neither the Executive nor anyone else claiming on behalf of or
through the Executive shall have any right with respect to, or claim
against, that policy.
|
|
|
(d)
|
The
Executive and any Beneficiary are general unsecured creditors of the
Company with respect to the payment of the benefits under this
SERP.
|
|
9.6
|
Benefits
Not Assignable. The accrued
benefits under this SERP shall not be considered assets under state law or
bankruptcy law of the Executive or of any Beneficiary. The
Executive and any Beneficiary shall not have any right to alienate,
anticipate, pledge, encumber or assign any of the benefits payable under
this SERP. The Executive’s or any Beneficiary’s benefits shall
not be subject to any claim of, or any attachment, garnishment or other
legal process brought by, any of his or her
creditors.
|
|
9.7
|
Binding
Effect. This SERP
binds and inures to the benefit of the parties and their respective legal
representatives, heirs, successors and
assigns.
|
|
9.8
|
Reorganization. The Company
shall not merge or consolidate into or with another company, or
reorganize, or sell substantially all of its assets to another company,
firm, or person unless that succeeding or continuing company, firm or
person agrees to assume and discharge the obligations of the Company under
this SERP. Upon the occurrence of such an event, the term
“Company” as used in this SERP shall be deemed to refer to the successor
or survivor company.
|
|
9.9
|
Applicable
Law.
|
|
|
(a)
|
This
SERP shall be construed and its validity determined according to the laws
of the State of Oregon, other than its law regarding conflicts of law or
choice of law, to the extent not preempted by federal
law.
|
Page
14 SERP
(Sznewajs)
|
|
(b)
|
Any
dispute arising out of this SERP must be brought in either Clackamas
County or Multnomah County, Oregon, and the parties will submit to
personal jurisdiction in either of those
counties.
|
|
9.10
|
Arbitration. Any dispute
or claim arising out of or brought in connection with this SERP, will, if
requested by any party, be submitted to and settled by arbitration under
the rules then in effect of the American Arbitration Association (or under
any other form of arbitration mutually acceptable to the parties
involved). Any award rendered in arbitration will be final and
will bind the parties, and a judgment on it may be entered in the highest
court of the forum having jurisdiction. The arbitrator will
render a written decision, naming the substantially prevailing party in
the action, and, subject to Section 9.11(b), will award that party
all costs and expenses incurred, including reasonable attorneys’
fees.
|
|
9.11
|
Attorneys’
Fees.
|
|
|
(a)
|
If
any breach of or default under this SERP results in either party incurring
attorneys’ or other fees, costs or expenses (including those incurred in
an arbitration), the substantially prevailing party is entitled to recover
from the non-prevailing party its reasonable legal fees, costs and
expenses, including attorneys’ fees and the costs of the arbitration,
except as provided in subsection (b)
below.
|
|
|
(b)
|
If
the Executive is not the substantially prevailing party, the Executive
shall be liable to pay the Company under subsection (a) above only if
the arbitrator determines that:
|
|
|
(1)
|
There
was no reasonable basis for the Executive’s claim (or the Executive’s
response to the Company’s claim);
or
|
|
|
(2)
|
The
Executive had engaged in unreasonable delay, failed to comply with a
discovery order or otherwise acted in bad faith in the
arbitration.
|
|
|
(c)
|
Either
party shall be entitled to recover any reasonable attorneys’ fees and
other costs and expenses it incurs in enforcing or collecting an
arbitration award.
|
|
|
(d)
|
If
an award under this section is made to the Executive and accountants or
tax counsel selected by Company with the Executive’s consent (which shall
not be unreasonably withheld) determine that the award is includible in
Executive’s gross income, the Company shall also pay the Executive a
gross-up payment to offset the taxes imposed on that award, including the
taxes on the gross-up payment itself. This gross-up payment
shall be determined following the methodology employed in the Change in
Control Agreement.
|
|
9.12
|
Entire
Agreement. This SERP
constitutes the entire agreement between the Company and the Executive as
to its subject matter. No rights are granted to the Executive
by virtue of this SERP other than those specifically set forth in this
document and any amendments to it.
|
Page
15 SERP
(Sznewajs)
|
9.13
|
Construction. The
language of this SERP was chosen jointly by the parties to express their
mutual intent. No rule of construction based on which party
drafted the SERP or certain of its provisions will be applied against any
party.
|
|
9.14
|
Section
Headings; Citations. The section
headings used in this SERP have been included for convenience of reference
only. Citations to statutes, regulations or FASB policies or
statements are to those provisions as amended or to any successor
provision.
|
|
9.15
|
Counterparts. This SERP
may be executed in one or more counterparts, and all counterparts will be
construed together as one plan.
|
|
9.16
|
Severability. If any
provision of this SERP is, to any extent, held to be invalid or
unenforceable, it will be deemed amended as necessary to conform to the
applicable laws or regulations. However, if it cannot be
amended without materially altering the intentions of the parties, it will
be deleted and the remainder of this SERP will be enforced to the extent
permitted by law.
|
|
9.17
|
Joint
and Several Obligation. Bancorp and
the Bank will be jointly and severally liable for the payment obligations
under this Agreement.
|
|
EXECUTIVE:
|
COMPANY:
|
|||
|
WEST
COAST BANCORP
|
||||
|
/s/ Robert D. Sznewajs
|
By:
|
/s/ Lloyd D. Ankeny | ||
|
Robert
D. Sznewajs
|
||||
|
Title:
|
Chairman | |||
|
Date:
|
January 12, 2011 | |||
|
Date:
|
December 16, 2010 | |||
|
WEST
COAST BANK
|
||||
|
By:
|
/s/ Lloyd D. Ankeny | |||
|
Title:
|
Chairman | |||
|
Date:
|
December 16, 2010 | |||
Page
16 SERP
(Sznewajs)