Exhibit 10.5


 


Prepared 5-3-04


 


Premier
Commercial Bank

DIRECTOR DEFERRED FEE AGREEMENT


 


THIS
AGREEMENT is made this 15th day of July, 2004,
by and between PREMIER COMMERCIAL BANK, a state-chartered commercial bank,
located in Anaheim, California, (the “Company”), and Mel Smith (the “Director”).


 


INTRODUCTION


 


To encourage the Director to
remain a member of the Company’s Board of Directors, the Company is willing to
provide to the Director a deferred fee opportunity. The Company will pay the
Director’s benefits from the Company’s general assets.


 


AGREEMENT


 


The Director and the Company agree as follows:


 


Article 1

Definitions


 


Whenever used in this
Agreement, the following words and phrases shall have the meanings specified:


 


1.1   “Change of Control” means
the transfer of shares of the Company’s voting common stock such that one
entity or one person acquires (or is deemed to acquire when applying Section
318 of the Code) more than 50 percent of the Company’s outstanding voting
common stock.


 


Notwithstanding the above, certain transfers are permitted within
Section 318 of the Code and such transfers shall not be deemed a Change of
Control under this Section 1.4. Nor shall any transfers of the Company’s voting
common stock to its holding company be deemed a Change of Control for purposes
of this Agreement.


 


1.2   “Code” means the
Internal Revenue Code of 1986, as amended.


 


1.3    “Deferral Account” means the Company’s accounting of the
Director’s accumulated Deferrals plus accrued interest.


 


1.4    “Deferrals” means the amount of the Director’s Fees, which
the Director elects to defer according to this Agreement.


 


1

















 


1.5   “Disability” means, if the Director is
covered by a Company-sponsored disability policy, total disability as defined
in such policy without regard to any waiting period. If the Director is not
covered by such a policy, Disability means the Director suffering a sickness,
accident or injury which, in the judgment of a physician who is satisfactory to
the Company, prevents the Director from performing substantially all of the
Director’s normal duties for the Company. As a condition to receiving any
Disability benefits, the Company may require the Director to submit to such physical
or mental evaluations and tests as the Company’s Board of Directors deems appropriate
and reasonable.


 


1.6   “Effective Date” means July 1,
2004.


 


1.7   “Election Form” means the Form attached as Exhibit 1.


 


1.8   “Fees” means the total fees payable to the Director during a
Plan Year.


 


1.9   “Normal Retirement Age” means the Director’s 70th
birthday.


 


1.10 “Normal
Retirement Date” means
the later of the Normal Retirement Age or Termination of Service.


 


1.11 “Plan Year” means the
calendar year.


 


1.12 “Termination of
Service” means
that the Director ceases to be a member of the Company’s Board of Directors for
any reason, voluntary or involuntary, other than by reason of a leave of
absence approved by the Company.


 


Article 2

Deferral Election


 


2.1         Initial Election. The Director shall make
an initial deferral election under this Agreement by filing with the Company a
signed Election Form within 30 days after the Effective Date of this Agreement.
The Election Form shall set forth the amount of Fees to be deferred and shall
be effective to defer only Fees earned after the date the Election Form is
received by the Company.


 


2.2         Election Changes


 


2.2.1 Generally. Upon the Company’s
approval, the Director may modify the amount of Fees to be deferred
annually by filing a new Election Form with the Company prior to the beginning
of the Plan Year in which the Fees are to be deferred. The modified deferral election
shall not be effective until the calendar year following the year in which the
subsequent Election Form is received and approved by the Company.


 


2.2.2 Hardship. If
an unforesecable financial emergency arising from the death of a


 


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family member, divorce, sickness, injury,
catastrophe or similar event outside the control of the Director occurs, the
Director, by written instructions to the Company, may reduce future deferrals
under this Agreement.


 


Article 3

Deferral Account


 


3.1        Establishing
and Crediting. The Company shall establish a Deferral Account on its
books for the Director and shall credit to the Deferral Account the following
amounts:


 


3.1.1  Deferrals. The Fees deferred by the Director as of the time
the Fees would have otherwise been paid to the Director.


 


3.1.2  Interest.  At the end
of each Plan Year under this Agreement and immediately prior to the payment of
any benefits, but only until commencement of the benefit payments under this
Agreement, unless otherwise stated, interest is to be credited on the account
balance at an annual rate equal to 6% percent, compounded monthly.


 


3.2      Statement of Accounts. The Company shall
provide to the Director, within 120 days after the end of each Plan Year, a
statement setting forth the Deferral Account balance.


 


3.3      Accounting Device Only. The Deferral
Account is solely a device for measuring amounts to be paid under this
Agreement. The Deferral Account is not a trust fund of any kind. The Director
is a general unsecured creditor of the Company for the payment of benefits. The
benefits represent the mere Company promise to pay such benefits. The Director’s
rights are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment, or garnishment by the
Director’s creditors.


 


Article 4

Benefits During Lifetime


 


4.1     Normal Retirement Benefit. Upon the Normal Retirement Date, the Company
shall pay to the Director the benefit described in this Section 4.1 in lieu of
any other benefit under this Agreement.


 


4.1.1   Amount of Benefit. The benefit under this Section 4.1 is the
Deferral Account balance at the Director’s Normal Retirement Date.


 


4.1.2   Payment of Benefit.  The
Company shall pay the benefit to the Director in 120 equal monthly installments
commencing with the month following the Director’s Normal Retirement Date. The
Company shall continue to credit interest pursuant to Section 3.1.2 on the
remaining account balance during any applicable installment period.


 


4.2        Early Retirement Benefit. Upon Termination of Service prior to the
Normal Retirement


 


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Age for reasons other than death, Change of Control
or Disability, the Company shall pay to the Director the benefit described in
this Section 4.2 in lieu of any other benefit under this Agreement.


 


(a)   Amount of Benefit. The
benefit under this Section 4.2 is the Deferral Account balance at the Director’s
Termination of Service.


 


4.2.2  Payment of Benefit. The Company shall pay the benefit to the
Director in 120 equal monthly installments commencing with the month following
the Director’s Normal Retirement Age. The Company shall continue to credit
interest pursuant to Section 3.1.2 on the remaining account balance during any
applicable installment period.


 


4.3    Disability Benefit. If
the Director terminates service as a Director due to Disability prior to Normal
Retirement Age, the Company shall pay to the Director the benefit described in
this Section 4.3 in lieu of any other benefit under this Agreement.


 


4.3.1  Amount of Benefit. The benefit under this Section 4.3 is the
Deferral Account balance at the Director’s Termination of Service.


 


4.3.2  Payment of Benefit. The Company shall pay the benefit to the
Director in 120 equal monthly installments commencing with the month following
the Director’s Termination of Service. The Company shall continue to credit
interest pursuant to Section 3.1.2 on the remaining account balance during any
applicable installment period.


 


4.4    Change of Control Benefit. Upon
a Change of Control, the Company shall pay to the Director the benefit
described in this Section 4.4 in lieu of any other benefit under this
Agreement.


 


4.4.1   Amount of Benefit,   The
benefit under this Section 4.4 shall be the projected Deferral Account balance,
calculated as if the Director had reached Normal Retirement Age while serving
as a member of the Board.


 


4.4.2   Payment of Benefit. The Company shall pay the benefit to the
Director in 120 equal monthly installments commencing with the month following
the Director’s Normal Retirement Age.


 


4.5    Hardship Distribution. Upon
the Board of Director’s determination (following petition by the Director) that
the Director has suffered an unforeseeable financial emergency as described in Section
2.2.2, the Company shall distribute to the Director all or a portion of the
Deferral Account balance as determined by the Company, but in no event shall
the distribution be greater than is necessary to relieve the financial
hardship.


 


Article 5 

Death Benefits


 


5.1    Death During Active Service.   If the Director dies while in the
active service of the


 


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Company, the Company shall pay to the Director’s
beneficiary the benefit described in this Section 5.1 in lieu of any other
benefit under this Agreement.


 


5.1.1  Amount of Benefit. The benefit under this Section 5.1 is the
Deferral Account balance at the Director’s death.


 


5.1.2  Payment of Benefit. The Company shall pay the benefit to the
beneficiary in a lump sum within 60 days of Director’s death.


 


5.2    Death During Payment of a
Benefit. If the Director dies after benefit payments have commenced
under this Agreement but before receiving all such payments, the Company shall
pay the remaining benefits to the Director’s beneficiary at the same time and
in the same amounts they would have been paid to the Director had the Director
survived.


 


5.3    Death After Termination of
Service But Before Benefit Payments Commence.  
If the Director is entitled to benefit payments under this
Agreement, but dies prior to the commencement of said benefit payments, the
Company shall pay the benefit payments to the Director’s beneficiary that the
Director was entitled to prior to death except that the benefit payments shall
commence on the first day of the month following the date of the Director’s
death.


 


Article 6

Beneficiaries


 


6.1    Beneficiary Designations. The
Director shall designate a beneficiary by filing a written designation with the
Company. The Director may revoke or modify the designation at any time by
filing a new designation. However, designations will only be effective if
signed by the Director and acknowledged by the Company during the Director’s
lifetime. The Director’s beneficiary designation shall be deemed automatically
revoked if the beneficiary predeceases the Director or if the Director names a
spouse as beneficiary and the marriage is subsequently dissolved.
If the Director dies without a valid beneficiary designation, all payments
shall be made to the Director’s estate.


 


6.2    Facility of
Payment. If a
benefit is payable to a minor, to a person declared incompetent, or to a person
incapable of handling the disposition of his or her property, the Company may pay
such benefit to the guardian, legal representative or person having the care or
custody of such minor, incompetent person or incapable person. The Company may
require proof of incompetence, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Such distribution shall
completely discharge the Company from all liability with respect to such
benefit.


 


Article 7

General Limitations


 


7.1    Termination for Cause. Notwithstanding
any provision of this Agreement to the contrary, the Company shall not pay any
benefit under this Agreement that is in excess of the


 


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Director’s Deferrals (i.e., the interest earned on the Deferral
Account) if the Company terminates the Director’s service for:


 


(a)      Gross negligence or gross neglect of
duties to the Company;


 


(b)     Commission of a felony or
of a gross misdemeanor involving moral turpitude in connection with the
Director’s service to the Company; or


 


(c)      Fraud, disloyalty,
dishonesty or willful violation of any law or significant Company policy
committed in connection with the Director’s service and resulting in an adverse
effect on the Company.


 


The
Director’s Deferrals shall be paid to the Director in a manner to be determined
by the Company. No interest shall be credited on the Deferrals during any
applicable installment period.


 


Article 8

Claims and Review Procedure


 


8.1    Claims Procedure. Any
person or entity who has not received benefits under this Agreement that he or
she believes should be paid (“claimant”) shall make a claim for such benefits
as follows:


 


8.1.1   Initiation – Written Claim. The claimant initiates a claim
by submitting to the Company a written claim for the benefits.


 


8.1.2   Timing of Company Response. The Company shall respond to
such claimant within 90 days after receiving the claim. If the Company
determines that special circumstances require additional time for processing
the claim, the Company can extend the response period by an additional 90 days
by notifying the claimant in writing, prior to the end of the initial 90-day
period, that an additional period is required. The notice of extension must set
forth the special circumstances and the date by which the Company expects to
render its decision.


 


8.1.3   Notice of Decision. If the Company denies part or all of the
claim, the Company shall notify the claimant in writing of such denial. The
Company shall write the notification in a manner calculated to be understood by
the claimant. The notification shall set forth:


 


(a)        The specific reasons for the denial,


(b)        A reference to the
specific provisions of the Agreement on which the denial is based,


(c)        A description of any
additional information or material necessary for the claimant to perfect the
claim and an explanation of why it is needed,


(d)        An explanation of the
Agreement’s review procedures and the time limits applicable to such
procedures, and


 


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(e)       A statement of the claimant’s right to bring a civil action
under ERISA Section 502(a) following an adverse benefit determination on
review.


 


8.2    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:


 


8.2.1  Initiation – Written Request. To initiate the review, the
claimant, within 60 days after receiving the Company’s notice of denial, must
file with the Company a written request for review.


 


8.2.2  Additional Submissions – Information Access. The claimant
shall then have the opportunity to submit written comments, documents, records
and other information relating to the claim. The Company shall also provide the
claimant, 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.


 


8.2.3  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 such information was
submitted or considered in the initial benefit determination.


 


8.2.4  Timing of Company Response. The Company shall respond in
writing to such 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 can extend the response period by an
additional 60 days by notifying the claimant in writing, prior to the end of
the initial 60-day period, that an additional period is required. The notice of
extension must set forth the special circumstances and the date by which the
Company expects to render its decision.


 


8.2.5  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:


 


(a)        The specific reasons for the denial,


(b)        A reference to the
specific provisions of the Agreement on which the denial is based,


(c)        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


(d)        A statement of the
claimant’s right to bring a civil action under ERISA Section 502(a).


 


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Article 9

Amendments and Termination


 


This Agreement may be
amended or terminated only by a written agreement signed by the Company and the
Director.


 


Notwithstanding the previous paragraph in this
Article 9, the Company may amend or terminate this Agreement
at any time if, pursuant to legislative, judicial or regulatory action,
continuation of the Agreement would (i) cause benefits to be taxable to the
Director prior to actual receipt, or (ii) result in significant financial
penalties or other significantly detrimental ramifications to the Company
(other than the financial impact of paying the benefits). In no event shall
this Agreement be terminated under this section without payment to the Director
of the Deferral Account balance attributable to the Director’s Deferrals and
interest credited on such amounts.


 


Article 10

Miscellaneous


 


10.1    Binding Effect. This
Agreement shall bind the Director and the Company, and their beneficiaries,
survivors, executors, administrators
and transferees.


 


10.2    No Guarantee of Service. This
Agreement is not a contract for services. It does not give the Director the
right to remain in the service of the
Company, nor does it interfere with the shareholders’ rights to replace the
Director. It also does not require the Director to remain in the service of the
Company nor interfere with the Director’s right to terminate services at any
time.


 


10.3    Non-Transferability. Benefits
under this Agreement cannot be sold, transferred, assigned, pledged, attached
or encumbered in any manner.


 


10.4    Tax Withholding.    The Company shall withhold any
taxes that are required to be withheld from the benefits provided under this
Agreement.


 


10.5    Applicable Law. The
Agreement and all rights hereunder shall be governed by the laws of the State
of California, except to the extent preempted
by the laws of the United States of America.


 


10.6    Unfunded Arrangement. The
Director and the Director’s beneficiary are general unsecured creditors of the
Company for the payment of benefits under this Agreement. The benefits represent
the mere promise by the Company to pay such benefits. The rights to benefits
are not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on the
Director’s life is a general asset of the Company to which the Director and the
Director’s beneficiary have no preferred or secured claim.


 


10.7    Reorganization. The
Company shall not merge or consolidate into or with another


 


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company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm, or person agrees to assume and discharge the obligations of the Company
under this Agreement. Upon the occurrence of such event, the term “Company” as
used in this Agreement shall be deemed to refer to the successor or survivor
company.


 


10.8    Entire Agreement. This
Agreement constitutes the entire agreement between the Company and the Director
as to the subject matter hereof. No rights are granted to the Director by virtue
of this Agreement other than those specifically set forth herein.


 


10.9    Administration. The
Company shall have powers which are necessary to administer this Agreement,
including but not limited to:


 


(a)      Interpreting the provisions of the
Agreement;


 


(b)     Establishing and revising the method of
accounting for the Agreement;


 


(c)      Maintaining a record of benefit payments;
and


 


(d)     Establishing rules and
prescribing any forms necessary or desirable to administer the Agreement.


 


10.10  Named Fiduciary. The
Company shall be the named fiduciary and plan administrator under the Agreement.
The named fiduciary may
delegate to others certain aspects of the management and operation
responsibilities of the plan including the Service of advisors and the
delegation of ministerial duties to qualified individuals.


 


IN WITNESS WHEREOF, the
Director and a duly authorized Company officer have signed this Agreement.


 


 


	
  Director

  	
  Company

  
	
   

  	
   

  
	
   

  	
  Premier Commercial Bank

  
	
   

  	
   

  
	
  /s/
  Mel Smith

  	
   

  	
  By

  	
  /s/
  Kenneth J. Cosgrove

  	
   

  
	
  Mel Smith

  	
  Title

  	
  C.E.O./ Chairman

  	
   

  
	
   

  	
   

  
						



 


9

















 


EXHIBIT 1


TO


Premier
Commercial Bank

DIRECTOR DEFERRED FEE AGREEMENT


 


Deferral
Election


 


I elect to defer my Fees pursuant to this Director
Deferred Fee Agreement with the Company, as follows:


 




	
  Amount of Deferral

  	
   

  	
  Duration

  
	
   

  	
   

  
	
  [Initial and Complete one]

  	
  [Initial One]

  
	
   

  	
   

  
	
  ý

  	
   I elect to defer 100% of my 

  	
   

  	
  o

  	
   

  	
  One Year only

  
	
   

  	
   Fees annually.

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o

  	
   I elect to defer  $        of my

  	
   

  	
  o

  	
   

  	
  For            [Insert 

  
	
   

  	
   Fees annually.

  	
   

  	
   

  	
   

  	
  Number] Years

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o

  	
   I elect not to defer any of my

  	
   

  	
  ý

  	
   

  	
  Until Termination of 

  
	
   

  	
   Fees.

  	
   

  	
   

  	
   

  	
  Service

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  o

  	
   

  	
  Until
                           ,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  (date)

  
								






 


Upon the Company’s approval, I understand that I may change the amount and
duration of my deferrals by filing a new election form with the Company;
provided, however, that any subsequent election will not be effective until the
calendar year following the year in which the new election is received by the
Company.


 


	
  Signature
  

  	
  /s/ Mel Smith

  	
   

  
	
   

  	
  [Name of Director]

  
	
   

  
	
  Date

  	
  July 15, 2004

  	
   

  
	
   

  
	
   

  
	
  Received by the Company this 15th  day of July,
  2004.

  
	
   

  
	
  By

  	
  /s/ Kenneth J. Cosgrove

  	
   

  
	
   

  
	
  Title

  	
  CEO/ Chairman

  	
   

  
	
   

  
							



 


10

















 


Beneficiary
Designation


 


Premier
Commercial Bank

DIRECTOR DEFERRED FEE AGREEMENT


 


I designate the following as beneficiary of benefits
under this Agreement payable following my death:


 


	
  Primary:

  	
  SMITH FAMILY TRUST DATED 8-24-87

  
	
  MEL & MARJORIE SMITH, TRUSTEES

  
	
   

  
	
  Contingent:

  	
   

  
	
   

  
			



 


Note:  To name a trust as beneficiary, please provide
the name of the trustee(s) and the exact name and date of the trust
agreement.


 


I understand that I may change these beneficiary designations by filing
a new written designation with the Company. I further understand that the
designations will be automatically revoked if the beneficiary predeceases me,
or, if I have named my spouse as beneficiary and our marriage is subsequently
dissolved.


 


	
  Signature

  	
  /s/ Mel Smith

  	
   

  
	
   

  	
  [Name of Director]

  
	
   

  
	
  Date

  	
  July 15, 2004

  	
   

  
						



 


SPOUSAL CONSENT (Required if Spouse
not named beneficiary):


 


I consent to the beneficiary designation above, and
acknowledge that if I am named beneficiary and our marriage is subsequently
dissolved, the designation will be automatically revoked.


 


	
  Spouse Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Signature:

  	
   

  	
   Date:

  	
   

  	
   

  
							



 


Acknowledged
by the Company this 15th day of July, 2004.


 


	
  By

  	
  /s/ Kenneth J. Cosgrove

  	
   

  
	
   

  
	
  Title

  	
  C.E.O./ Chairman

  	
   

  
					



 


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