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DIRECTOR SUPPLEMENTAL COMPENSATION AGREEMENT
This Agreement is made and entered into effective as of _________, 1998
by and between Saratoga National Bank, a national banking association
chartered under the federal laws of the United States of America with its
principal offices located in the City of Saratoga, Santa Clara County,
California (the "Bank"), and __________________, an individual residing in the
State of California (the "Director").
R E C I T A L S
WHEREAS, the Director is a member of the Board of Directors of the
Bank and has served in such capacity since 1982;
WHEREAS, the Bank desires to establish a compensation benefit for
directors who are not also officers or employees of the Bank in order to
attract and retain individuals with extensive and valuable experience as
directors; and
WHEREAS, the Director and the Bank wish to specify in writing the terms
and conditions upon which this additional compensatory incentive will be
provided to the Director, or as applicable, to the Director's spouse or
designated beneficiaries, as the case may be.
NOW, THEREFORE, in consideration of the services to be performed by
the Director in the future, as well as the mutual promises and covenants
contained herein, the Director and the Bank agree as follows:
A G R E E M E N T
1. Terms and Definitions.
1.1. Administrator. The Bank shall be the "Administrator"
and, solely for the purposes of ERISA as defined in subparagraph 1.9 below, the
"fiduciary" of this Agreement where a fiduciary is required by ERISA.
1.2. Applicable Percentage. The term "Applicable
Percentage" shall mean that percentage listed on Schedule "A" attached hereto
which is adjacent to the number of calendar years which shall have elapsed from
the date of the Director's commencement of service to the Bank. Notwithstanding
the foregoing or the percentages set forth on Schedule "A," but subject to all
other terms and conditions set forth herein, the "Applicable Percentage"
shall be: (i)
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provided payments have not yet begun hereunder, one hundred percent (100%)
upon the occurrence of a "Change in Control" as defined in subparagraph 1.4
below, or the Director's death, or Disability (as defined in subparagraph 1.6
below), which death or Disability occurs prior to the termination of the
Director's service on the Board of Directors of the Bank; and (ii)
notwithstanding subclause (i) of this subparagraph 1.2, zero percent (0%)
in the event the Director takes any intentional action which prevents the
Bank from collecting the proceeds of any life insurance policy which the Bank
may happen to own at the time of the Director's death and of which the Bank
is the designated beneficiary. Furthermore, notwithstanding the foregoing,
or anything contained in this Agreement to the contrary, in the event the
Director takes any intentional action which prevents the Bank from collecting
the proceeds of any life insurance policy which the Bank may happen to own at
the time of the Director's death and of which the Bank is the designated
beneficiary: (1) the Director's estate or designated beneficiary shall no
longer be entitled to receive any of the amounts payable under the terms of this
Agreement, and (2) the Bank shall have the right to recover from the Director's
estate all of the amounts paid to the Director's estate (with respect to amounts
paid prior to the Director's death or paid to the Director's estate) or
designated beneficiary (with respect to amounts paid to the designated
beneficiary) pursuant to the terms of this Agreement prior to and after
Director's death.
1.3. Beneficiary. The term "beneficiary" or "designated
beneficiary" shall mean the person or persons whom the Director shall designate
in a valid Beneficiary Designation, a copy of which is attached hereto as
Schedule "C," to receive the benefits provided hereunder. A Beneficiary
Designation shall be valid only if it is in the form attached hereto and made a
part hereof, completed and signed by the Director and received by the
Administrator prior to the Director's death.
1.4. Change in Control. The term "Change in Control" shall
mean the occurrence of any of the following events with respect to the Bank
(with the term "Bank" being defined for purposes of determining whether a
"Change in Control" has occurred to include any parent bank holding company
owning 100% of the Bank's outstanding common stock): (i) a change in control
of a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or in response to any other form or
report to the regulatory agencies or governmental authorities having
jurisdiction over the Bank or any stock exchange on which the Bank's shares are
listed which requires the reporting of a change in control; (ii) any merger,
consolidation or reorganization of the Bank in which the Bank does not survive;
(iii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition
(in one transaction or a series of transactions) of any assets of the Bank
having an aggregate fair market value of fifty percent (50%) of the total
value of the assets of the Bank, reflected in the most recent balance sheet of
the Bank; (iv) a transaction whereby any "person" (as such term is used in the
Exchange Act) or any individual, corporation, partnership, trust or any other
entity becomes the beneficial owner, directly or indirectly, of securities of
the Bank representing twenty-five percent (25%) or more of the combined voting
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power of the Bank's then outstanding securities; or (v) a situation where, in
any one-year period, individuals who at the beginning of such period constitute
the Board of Directors of the Bank cease for any reason to constitute at least
a majority thereof, unless the election, or the nomination for election by the
Bank's shareholders, of each new director is approved by a vote of at least
three-quarters (3/4) of the directors then still in office who were directors
at the beginning of the period.
1.5. The Code. The "Code" shall mean the Internal Revenue
Code of 1986, as amended (the "Code").
1.6. Disability/Disabled. The term "Disability" or "Disabled" shall
have the same meaning given such terms in any policy of disability insurance
maintained by the Bank for the benefit of directors including the Director.
In the absence of such a policy which extends coverage to the Director in the
event of disability, the terms shall mean bodily injury or disease (mental or
physical) which wholly and continuously prevents the performance of duty for at
least three months.
1.7. Director Benefits. The term "Director Benefits" shall
mean the benefits determined in accordance with Schedule "B", and reduced or
adjusted to the extent: (i) required under the other provisions of this
Agreement, including, but not limited to, Paragraphs 5, 6 and 7 hereof; (ii)
required by reason of the lawful order of any regulatory agency or body having
jurisdiction over the Bank; or (iii) required in order for the Bank 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).
1.8. Early Retirement Date. The term "Early Retirement
Date" shall mean the Retirement, as defined below, of the Director on a date
which occurs prior to the Director attaining sixty-two (62) years of age, but
after the Director has attained fifty-five (55) years of age.
1.9. Effective Date. The term "Effective Date" shall mean
the date first written above.
1.10. ERISA. The term "ERISA" shall mean the Employee
Retirement Income Security Act of 1974, as amended.
1.11. Plan Year. The term "Plan Year" shall mean the Bank's
fiscal year.
1.12. Retirement. The term "Retirement" or "Retires" shall
refer to the date which the Director acknowledges in writing to the Bank to be
the last day of service as a member of the Board of Directors of the Bank.
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1.13. Surviving Spouse. The term "Surviving Spouse" shall
mean the person, if any, who shall be legally married to the Director on the
date of the Director's death.
1.14. Removal for Cause. The term "Removal for Cause"
shall mean termination of the service of the Director by reason of any of the
following determined in good faith by the Bank's Board of Directors:
(a) The willful, intentional and material breach or
the habitual and continued neglect by the
Director of his or her employment
responsibilities and duties;
(b) The continuous mental or physical incapacity of
the Director, subject to disability rights under
this Agreement;
(c) The Director's willful and intentional violation
of any federal banking or securities laws, or of
the Bylaws, rules, policies or resolutions of
Bank, or the rules or regulations of the Board of
Governors of the Federal Reserve System,
Federal Deposit Insurance Corporation, Office
of the Comptroller of the Currency, or other
regulatory agency or governmental authority
having jurisdiction over the Bank, which has a
material adverse effect upon the Bank;
(d) The written determination by a state or federal
banking agency or governmental authority
having jurisdiction over the Bank that the
Director (i) is of unsound mind, or (ii) has
committed a gross abuse of authority or
discretion with reference to the Bank, or (iii)
otherwise is not suitable to continue to serve as
a member of the Board of Directors of the
Bank;
(e) The Director's conviction of (i) any felony or
(ii) a crime involving moral turpitude, or the
Director's willful and intentional commission of
a fraudulent or dishonest act; or
(f) The Director's willful and intentional disclosure,
without authority, of any secret or confidential
information concerning Bank or taking any
action which the Bank's Board of Directors
determines, in its sole discretion and subject to
good faith, fair dealing and reasonableness,
constitutes unfair competition with or induces
any customer to breach any contract with the
Bank.
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2. Scope, Purpose and Effect.
2.1. Contract of Employment. Although this Agreement is intended
to provide the Director with an additional incentive to continue to serve
as a member of the Board of Directors of the Bank, this Agreement shall not be
deemed to constitute a contract of employment between the Director and the Bank
nor shall any provision of this Agreement restrict the right of the Bank to
remove or cause the removal of the Director including, without limitation, by
(i) refusal to nominate the Director for election for any successive term of
office as a member of the Board of Directors of the Bank, or (ii) complying
with an order or other directive from a court of competent jurisdiction or any
regulatory authority having jurisdiction over the Bank which requires the Bank
to take action to remove the Director.
2.2. Fringe Benefit. The benefits provided by this
Agreement are granted by the Bank as a fringe benefit to the Director and are
not a part of any salary reduction plan or any arrangement deferring a bonus or
a salary increase. The Director has no option to take any current payments or
bonus in lieu of the benefits provided by this Agreement.
3. Payments Upon Early Retirement or Retirement and After
Retirement.
3.1. Payments Upon Early Retirement. The Director shall
have the right to Retire on a date which constitutes an Early Retirement Date as
defined in subparagraph 1.7 above. In the event the Director elects to Retire
on a date which constitutes an Early Retirement Date, the Director shall be
entitled to be paid the Applicable Percentage of the Director Benefits, in
substantially equal monthly installments on the first day of each month,
beginning with the month following the month in which the Early Retirement Date
occurs or upon such later date as may be mutually agreed upon by the Director
and the Bank in advance of said Early Retirement Date, payable (i) for the
period designated in Schedule "D" in the case of the balance in the Benefit
Account and (ii) until the Director's death in the case of the Index Benefit
defined in Schedule "B".
3.2. Payments Upon Retirement. If the Director remains a
member of the Board of Directors of the Bank until attaining sixty-two (62)
years of age, the Director shall be entitled to be paid the Applicable
Percentage of the Director Benefits, in substantially equal monthly
installments on the first day of each month, beginning with the month following
the month in which the Director Retires or upon such later date as may be
mutually agreed upon by the Director and the Bank in advance of said Retirement
date, payable (i) for the period designated in Schedule "D" in the case of the
balance in the Benefit Account and (ii) until the Director's death in the
case of the Index Benefit defined in Schedule "B". At the Bank's sole and
absolute discretion, the Bank may increase the Director Benefits as and when
the Bank determines the same to be appropriate.
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3.3. Payments in the Event of Death After Retirement.
The Bank agrees that if the Director Retires, but shall die before receiving
all of the Director Benefits Payments specified in Schedule "B", the Bank
agrees to pay the Applicable Percentage of the Director Benefits to the
Director's designated beneficiary in lump sum. If a valid Beneficiary
Designation is not in effect, then the remaining amounts due to the Director
under the terms of this Agreement shall be paid to the Director's Surviving
Spouse. If the Director leaves no Surviving Spouse, the remaining amounts
due to the Director under the terms of this Agreement shall be paid to the
duly qualified personal representative, executor or administrator of the
Director's estate.
4. Payments in the Event Death or Disability Occurs Prior to
Retirement.
4.1. Payments in the Event of Death Prior to Retirement.
If the Director dies at any time after the Effective Date of this Agreement, but
prior to Retirement, the Bank agrees to pay the Applicable Percentage of the
Director Benefits to the Director's designated beneficiary in lump sum. If a
valid Beneficiary Designation is not in effect, then the remaining amounts due
to the Director under the terms of this Agreement shall be paid to the
Director's Surviving Spouse. If the Director leaves no Surviving Spouse, the
remaining amounts due to the Director under the terms of this Agreement shall
be paid to the duly qualified personal representative, executor or administrator
of the Director's estate.
4.2. Payments in the Event of Disability Prior to
Retirement. In the event the Director becomes Disabled at any time after the
Effective Date of this Agreement but prior to Retirement, the Director shall be
entitled to be paid the Applicable Percentage of the Director Benefits, in
substantially equal monthly installments on the first day of each month,
beginning with the month following the month in which the Director becomes
Disabled, payable (i) for the period designated in Schedule "D" in the case of
the balance in the Benefit Account and (ii) until the Director's death in the
case of the Index Benefit defined in Schedule "B".
5. Payments in the Event Service Is Terminated Prior to
Retirement. As indicated in subparagraph 2.1 above, the Bank reserves the right
to remove or cause the removal of the Director at any time prior to the
Director's Retirement. In the event that the Director shall be removed and his
or her service as a member of the Board of Directors of the Bank terminated,
other than by reason of death, Disability or Retirement, prior to the Director's
attaining sixty-two (62) years of age, then this Agreement shall terminate upon
the date of such termination of service; provided, however, that the Director
shall be entitled to the following benefits as may be applicable depending upon
the circumstances surrounding the Director's termination of service:
5.1. Termination Without Cause. If the Director's service
as a member of the Board of Directors of the Bank is terminated for reasons
other than as specified in paragraph 5.3 below, and such termination is not
subject to the provisions of subparagraph 5.4 below, the Director shall be
entitled to be paid the Applicable Percentage of the Director Benefits, in
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substantially equal monthly installments on the first day of each month,
beginning with the month following the month in which the Director attains
fifty-five (55) years of age or any month thereafter, as requested in writing by
the Director and delivered to the Bank or its successor thirty (30) days prior
to the commencement of installment payments; provided, however, that in the
event the Director does not request a commencement date as specified, such
installments shall be paid on the first day of each month, beginning with the
month following the month in which the Director attains sixty-two (62) years
of age. The installments shall be payable (i) for the period designated in
Schedule "D" in the case of the balance in the Benefit Account and (ii)
until the Director's death in the case of the Index Benefit defined in
Schedule "B".
5.2. Voluntary Termination by the Director. If the
Director's service as a member of the Board of Directors of the Bank is
terminated by voluntary resignation and such resignation is not subject to the
provisions of subparagraph 5.4 below, the Director shall be entitled to be paid
the Applicable Percentage of the Director Benefits, in substantially equal
monthly installments on the first day of each month, beginning with the month
following the month in which the Director attains fifty-five (55) years of age
or any month thereafter, as requested in writing by the Director and delivered
to the Bank or its successor thirty (30) days prior to the commencement of
installment payments; provided, however, that in the event the Director does
not request a commencement date as specified, such installments shall be paid
on the first day of each month, beginning with the month following the month in
which the Director attains sixty-two (62) years of age. The installments shall
be payable (i) for the period designated in Schedule "D" in the case of the
balance in the Benefit Account and (ii) until the Director's death in the
case of the Index Benefit defined in Schedule "B".
5.3. Termination by Removal for Cause. The Director
agrees that if the Director's service as a member of the Board of Directors of
the Bank is terminated by "removal for cause," (as defined in subparagraph 1.14
of this Agreement) and pursuant to subparagraph 1.14 (c), (d) or (e), the
Director shall forfeit any and all rights and benefits the Director may have
under the terms of this Agreement and shall have no right to be paid any of the
amounts which would otherwise be due or paid to the Director by the Bank
pursuant to the terms of this Agreement. In the event that the Director's
service as a member of the Board of Directors of the Bank is terminated by
"removal for cause" pursuant to subparagraph 1.14(a), (b) or (f), the Director
shall be entitled to be paid the Applicable Percentage of the Director Benefits,
as defined above, in substantially equal monthly installments on the first day
of each month, beginning with the month following the month in which the
Director attains fifty-five (55) years of age or any month thereafter, as
requested in writing by the Director and delivered to the Bank or its successor
thirty (30) days prior to the commencement of installment payments; provided,
however, that in the event the Director does not request a commencement date
as specified, such installments shall be paid on the first day of each month,
beginning with the month following the month in which the Director attains
sixty-two (62) years of age. The installments shall be payable
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(i) for the period designated in Schedule "D" in the case of the balance in the
Benefit Account and (ii) until the Director's death in the case of the Index
Benefit defined in Schedule "B".
5.4. Termination on Account of or After a Change in
Control. In the event: (i) the Director's service as a member of the Board of
Directors of the Bank is terminated in conjunction with, or by reason of, a
"Change in Control" (as defined in subparagraph 1.4 above); or (ii) by reason
of the Bank's actions and without the Director's prior written consent, any
change occurs in the scope of the Director's position, responsibilities,
duties, fees, benefits, or location of meetings (which in the event of
relocation of more than thirty (30) miles from the location of the Board or
committee meetings prior to a Change in Control shall constitute such a change
in location) after a Change in Control occurs, then the Director shall be
entitled to be paid the Applicable Percentage of the Director Benefits, as
defined above, in substantially equal monthly installments on the first
day of each month, beginning with the month following the month in which the
Director attains fifty-five (55) years of age or any month thereafter, as
requested in writing by the Director and delivered to the Bank or its
successor thirty (30) days prior to the commencement of installment payments;
provided, however, that in the event the Director does not request a
commencement date as specified, such installments shall be paid on the
first day of each month, beginning with the month following the month in which
the Director attains sixty-two (62) years of age. The installments shall be
payable (i) for the period designated in Schedule "D" in the case of the
balance in the Benefit Account and (ii) until the Director's death in the
case of the Index Benefit defined in Schedule "B".
5.5. Payments in the Event of Death Following
Termination. If the Director dies prior to receiving all of the Director
Benefits described in this Paragraph 5 to which the Director is entitled,
then the Bank will make such payments to the Director's designated beneficiary
in lump sum. If a valid Beneficiary Designation is not in effect, then the
remaining amounts due to the Director under the terms of this Agreement shall
be paid to the Director's Surviving Spouse. If the Director leaves no
Surviving Spouse, the remaining amounts due to the Director under the terms
of this Agreement shall be paid to the duly qualified personal
representative, executor or administrator of the Director's estate.
6. Section 280G Adjustment. The Director acknowledges and
agrees that the parties have entered into this Agreement based upon certain
financial and tax accounting assumptions. Accordingly, with full knowledge of
the potential consequences the Director agrees that, notwithstanding anything
contained herein to the contrary, in the event that any payment or benefit
received or to be received by the Director, whether payable pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the
Bank (together with the Director Benefits, the "Total Payments"), will not be
deductible (in whole or in part) as a result of Code Section 280G or other
applicable provisions of the Code, the Total Payments shall be reduced until
no portion of the Total Payments is nondeductible as a result of Section 280G
or such other applicable provisions of the Code. For purposes of this
limitation:
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(a) No portion of the Total Payments, the receipt or
enjoyment of which the Director shall have effectively waived in writing prior
to the date of payment of any future Director Benefits payments, shall be taken
into account;
(b) No portion of the Total Payments shall be taken
into account, which in the opinion of the tax counsel selected by the Bank and
acceptable to the Director, does not constitute a "parachute payment" within
the meaning of Section 280G of the Code;
(c) Any reduction of the Total Payments shall be
applied to reduce any payment or benefit received or to be received by the
Director pursuant to the terms of this Agreement and any other plan,
arrangement or agreement with the Bank in the order determined by mutual
agreement of the Bank and the Director;
(d) Future payments shall be reduced only to the
extent necessary so that the Total Payments (other than those referred to in
clauses (a) or (b) above in their entirety) constitute reasonable compensation
for services actually rendered within the meaning of Section 280G of the Code,
in the opinion of tax counsel referred to in clause (b) above; and
(e) The value of any non-cash benefit or any
deferred payment or benefit included in the Total Payments shall be determined
by independent auditors selected by the Bank and acceptable to the Director in
accordance with the principles of Section 280G of the Code.
7. Right To Determine Funding Methods. The Bank reserves the
right to determine, in its sole and absolute discretion, whether, to what extent
and by what method, if any, to provide for the payment of the amounts which may
be payable to the Director, the Director's spouse or the Director's
beneficiaries under the terms of this Agreement. In the event that the Bank
elects to fund this Agreement, in whole or in part, through the use of life
insurance or annuities, or both, the Bank shall determine the ownership and
beneficial interests of any such policy of life insurance or annuity. The Bank
further reserves the right, in its sole and absolute discretion, to terminate
any such policy, and any other device used to fund its obligations under this
Agreement, at any time, in whole or in part. Consistent with Paragraph 9 below,
neither the Director, the Director's spouse nor the Director's beneficiaries
shall have any right, title or interest in or to any funding source or amount
utilized by the Bank pursuant to this Agreement, and any such funding source
or amount shall not constitute security for the performance of the Bank's
obligations pursuant to this Agreement. In connection with the foregoing,
the Director agrees to execute such documents and undergo such medical
examinations or tests which the Bank may request and which may be reasonably
necessary to facilitate any funding for this Agreement including, without
limitation, the Bank's acquisition of any policy of insurance or annuity.
Furthermore, a refusal by the Director to consent to, participate in and undergo
any such medical examinations or tests shall result in the immediate termination
of this Agreement and the
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immediate forfeiture by the Director, the Director's spouse and the Director's
beneficiaries of any and all rights to payment hereunder.
8. Claims Procedure. The Bank shall, but only to the extent
necessary to comply with ERISA, be designated as the named fiduciary under this
Agreement and shall have authority to control and manage the operation and
administration of this Agreement. Consistent therewith, the Bank shall make all
determinations as to the rights to benefits under this Agreement. Any decision
by the Bank denying a claim by the Director, the Director's spouse, or the
Director's beneficiary for benefits under this Agreement shall be stated in
writing and delivered or mailed, via registered or certified mail, to the
Director, the Director's spouse or the Director's beneficiary, as the case may
be. Such decision shall set forth the specific reasons for the denial of a
claim. In addition, the Bank shall provide the Director, the Director's spouse
or the Director's beneficiary with a reasonable opportunity for a full and
fair review of the decision denying such claim.
9. Status as an Unsecured General Creditor. Notwithstanding
anything contained herein to the contrary: (i) neither the Director, the
Director's spouse or the Director's designated beneficiaries shall have any
legal or equitable rights, interests or claims in or to any specific property
or assets of the Bank as a result of this Agreement; (ii) none of the Bank's
assets shall be held in or under any trust for the benefit of the Director, the
Director's spouse or the Director's designated beneficiaries or held in any way
as security for the fulfillment of the obligations of the Bank under this
Agreement; (iii) all of the Bank's assets shall be and remain the general
unpledged and unrestricted assets of the Bank; (iv) the Bank's obligation
under this Agreement shall be that of an unfunded and unsecured promise by the
Bank to pay money in the future; and (v) the Director, the Director's spouse
and the Director's designated beneficiaries shall be unsecured general creditors
with respect to any benefits which may be payable under the terms of this
Agreement.
Notwithstanding subparagraphs (i) through (v) above, the Bank
and the Director acknowledge and agree that, in the event of a Change in
Control, upon request of the Director, or in the Bank's discretion if the
Director does not so request and the Bank nonetheless deems it appropriate,
the Bank shall establish, not later than the effective date of the Change in
Control, a Rabbi Trust or multiple Rabbi Trusts (the "Trust" or "Trusts")
upon such terms and conditions as the Bank, in its sole discretion, deems
appropriate and in compliance with applicable provisions of the Code, in order
to permit the Bank to make contributions and/or transfer assets to the Trust
or Trusts to discharge its obligations pursuant to this Agreement. The
principal of the Trust or Trusts and any earnings thereon shall be held separate
and apart from other funds of the Bank to be used exclusively for discharge of
the Bank's obligations pursuant to this Agreement and shall continue to be
subject to the claims of the Bank's general creditors until paid to the Director
or its beneficiaries in such manner and at such times as specified in this
Agreement.
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10. Discretion of Board to Accelerate Payout. Notwithstanding any
of the other provisions of this Agreement, the Board of Directors of the Bank
may, if determined in its sole and absolute discretion to be appropriate,
accelerate the payment of the amounts due under the terms of this Agreement,
provided that Director (or Director's spouse or designated beneficiaries):
(i) consents to the revised payout terms determined appropriate by the Bank's
Board of Directors; and (ii) does not negotiate or in anyway influence the terms
of proposed altered/accelerated payout (said decision to be made solely by the
Bank's Board of Directors and offered to the Director [or Director's spouse or
designated beneficiaries] on a "take it or leave it basis").
11. Miscellaneous.
11.1. Opportunity To Consult With Independent Advisors.
The Director acknowledges that he has been afforded the opportunity to consult
with independent advisors of his choosing including, without limitation,
accountants or tax advisors and counsel regarding both the benefits granted to
him under the terms of this Agreement and the (i) terms and conditions which
may affect the Director's right to these benefits and (ii) personal tax effects
of such benefits including, without limitation, the effects of any federal or
state taxes, Section 280G of the Code, and any other taxes, costs, expenses or
liabilities whatsoever related to such benefits, which in any of the foregoing
instances the Director acknowledges and agrees shall be the sole responsibility
of the Director notwithstanding any other term or provision of this Agreement.
The Director further acknowledges and agrees that the Bank shall have no
liability whatsoever related to any such personal tax effects or other personal
costs, expenses, or liabilities applicable to the Director and further
specifically waives any right for the Director, himself, and his heirs,
beneficiaries, legal representatives, agents, successors, and assigns to claim
or assert liability on the part of the Bank related to the matters described
above in this subparagraph 11.1. The Director further acknowledges and agrees
that he has read, understands and consents to all of the terms and conditions
of this Agreement, and that he enters into this Agreement with a full
understanding of its terms and conditions.
11.2. Arbitration of Disputes. All claims, disputes and other
matters in question arising out of or relating to this Agreement or the breach
or interpretation thereof, other than those matters which are to be determined
by the Bank in its sole and absolute discretion, shall be resolved by binding
arbitration before a representative member, selected by the mutual agreement of
the parties, of the Judicial Arbitration and Mediation Services, Inc. ("JAMS"),
located in San Francisco, California. In the event JAMS is unable or unwilling
to conduct the arbitration provided for under the terms of this Paragraph, or
has discontinued its business, the parties agree that a representative member,
selected by the mutual agreement of the parties, of the American Arbitration
Association ("AAA"), located in San Francisco, California, shall conduct the
binding arbitration referred to in this Paragraph. Notice of the demand for
arbitration shall be filed in writing with the other party to this Agreement
and with JAMS (or AAA, if necessary). In no event shall the demand for
arbitration be made after the date when institution of legal or
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equitable proceedings based on such claim, dispute or other matter in question
would be barred by the applicable statute of limitations. The arbitration shall
be subject to such rules of procedure used or established by JAMS, or if there
are none, the rules of procedure used or established by AAA. Any award rendered
by JAMS or AAA shall be final and binding upon the parties, and as applicable,
their respective heirs, beneficiaries, legal representatives, agents, successors
and assigns, and may be entered in any court having jurisdiction thereof. The
obligation of the parties to arbitrate pursuant to this clause shall be
specifically enforceable in accordance with, and shall be conducted consistently
with, the provisions of Title 9 of Part 3 of the California Code of Civil
Procedure. Any arbitration hereunder shall be conducted in Saratoga,
California, unless otherwise agreed to by the parties.
11.3. Attorneys' Fees. In the event of any arbitration or
litigation concerning any controversy, claim or dispute between the parties
hereto, arising out of or relating to this Agreement or the breach hereof, or
the interpretation hereof, the prevailing party shall be entitled to recover
from the non-prevailing party reasonable expenses, attorneys' fees and costs
incurred in connection therewith or in the enforcement or collection of any
judgment or award rendered therein. The "prevailing party" means the party
determined by the arbitrator(s) or court, as the case may be, to have most
nearly prevailed, even if such party did not prevail in all matters, not
necessarily the one in whose favor a judgment is rendered.
11.4. Notice. Any notice required or permitted of either the
Director or the Bank under this Agreement shall be deemed to have been duly
given, if by personal delivery, upon the date received by the party or its
authorized representative; if by facsimile, upon transmission to a telephone
number previously provided by the party to whom the facsimile is transmitted
as reflected in the records of the party transmitting the facsimile and upon
reasonable confirmation of such transmission; and if by mail, on the third day
after mailing via U.S. first class mail, registered or certified, postage
prepaid and return receipt requested, and addressed to the party at the address
given below for the receipt of notices, or such changed address as may be
requested in writing by a party.
If to the Bank: Saratoga National Bank
12000 Saratoga-Sunnyvale Rd.
Saratoga, California 95070
Attn: Chairman of the Board
If to the Director: ______________________
______________________
______________________
39
11.5. Assignment. Neither the Director, the Director's spouse,
nor any other beneficiary under this Agreement shall have any power or right to
transfer, assign, anticipate, hypothecate, modify or otherwise encumber any part
or all of the amounts payable hereunder, nor, prior to payment in accordance
with the terms of this Agreement, shall any portion of such amounts be: (i)
subject to seizure by any creditor of any such beneficiary, by a proceeding at
law or in equity, for the payment of any debts, judgments, alimony or separate
maintenance obligations which may be owed by the Director, the Director's
spouse, or any designated beneficiary; or (ii) transferable by operation of law
in the event of bankruptcy, insolvency or otherwise. Any such attempted
assignment or transfer shall be void and unenforceable without the prior written
consent of the Bank. The Bank's consent, if any, to one or more assignments or
transfers shall not obligate the Bank to consent to or be construed as the
Bank's consent to any other or subsequent assignment or transfer.
11.6. Binding Effect/Merger or Reorganization. This Agreement shall
be binding upon and inure to the benefit of the Director and the Bank and, as
applicable, their respective heirs, beneficiaries, legal representatives,
agents, successors and assigns. Accordingly, the Bank shall not merge or
consolidate into or with another corporation, or reorganize or sell
substantially all of its assets to another corporation, firm or person, unless
and until such succeeding or continuing corporation, firm or person agrees to
assume and discharge the obligations of the Bank under this Agreement. Upon the
occurrence of such event, the term "Bank" as used in this Agreement shall be
deemed to refer to such surviving or successor firm, person, entity or
corporation.
11.7. Nonwaiver. The failure of either party to enforce at any
time or for any period of time any one or more of the terms or conditions of
this Agreement shall not be a waiver of such term(s) or condition(s) or of that
party's right thereafter to enforce each and every term and condition of this
Agreement.
11.8. Partial Invalidity. If any term, provision, covenant, or
condition of this Agreement is determined by an arbitrator or a court, as the
case may be, to be invalid, void, or unenforceable, such determination shall not
render any other term, provision, covenant or condition invalid, void or
unenforceable, and the Agreement shall remain in full force and effect
notwithstanding such partial invalidity.
11.9. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with respect to
the subject matter of this Agreement and contains all of the covenants and
agreements between the parties with respect thereto. Each party to this
Agreement acknowledges that no other representations, inducements, promises, or
agreements, oral or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not set forth herein, and that no other
agreement, statement, or promise not contained in this Agreement shall be valid
or binding on either party.
40
11.10. Modifications. Any modification of this Agreement
shall be effective only if it is in writing and signed by each party or such
party's authorized representative.
11.11. Paragraph Headings. The paragraph headings used in
this Agreement are included solely for the convenience of the parties and shall
not affect or be used in connection with the interpretation of this Agreement.
11.12. No Strict Construction. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be applied
against any person.
11.13. Governing Law. The laws of the State of California,
other than those laws denominated choice of law rules, and, where applicable,
the rules and regulations of the Board of Governors of the Federal Reserve
System, Federal Deposit Insurance Corporation, Office of the Comptroller of the
Currency, or other regulatory agency or governmental authority having
jurisdiction over Bank, shall govern the validity, interpretation, construction
and effect of this Agreement.
IN WITNESS WHEREOF, the Bank and the Director have executed this
Agreement on the date first above-written in the City of Saratoga, Santa Clara
County, California.
THE BANK THE DIRECTOR
SARATOGA NATIONAL BANK
By:____________________________ _____________________________
William D. Kron __________________
Chairman of the Board
of Directors
41
SCHEDULE A
CALENDAR YEAR APPLICABLE PERCENTAGE
__________, 1982 to December 31, 1998. . . . 80.00%
December 31, 1999. . . . . . . . . . . . . . 90.00%
December 31, 2000. . . . . . . . . . . . . . 100.00%
42
SCHEDULE B
DIRECTOR BENEFITS
1. Director Benefits Determination.
The Director Benefits shall be determined based upon the following:
a. Benefit Account:
A Benefit Account shall be established as a liability reserve
account on the books of the Bank for the benefit of the Director.
Prior to the date on which the Director becomes eligible to receive
payments under the Agreement, such Benefit Account shall be
increased (or decreased) each Plan Year (including the Plan Year
in which the Director ceases to be employed by the Bank) by an
amount equal to the annual earnings or loss for that Plan Year
determined by the Index (described in subparagraph c below), less
the Opportunity Cost (described in subparagraph d below) for that
Plan Year.
b. Index Benefit:
After the date on which the Director becomes eligible to receive
payments under the Agreement, the Index Benefit for the Director
for any Plan Year shall be determined by subtracting the
Opportunity Cost for that Plan Year from the earnings, if any,
established by the Index.
c. Index:
The Index for any Plan Year shall be the aggregate annual after-tax
income from the life insurance contracts described hereinafter as
defined by FASB Technical Bulletin 85-4. This Index shall be
applied as if such insurance contracts were purchased on the
Effective Date.
Insurance Company(ies)/Policy Number(s):
___________________________
___________________________
___________________________
If such contracts of life insurance are actually purchased by the
Bank, then the actual policies as of the dates purchased shall be
used in calculations to determine the Index and Opportunity Cost.
If such contracts of life insurance are not purchased or are
43
subsequently surrendered or lapsed, then the Bank shall receive
and use annual policy illustrations that assume the above described
policies were purchased from the above named insurance
company(ies) on the Effective Date to calculate the amount of the
Index and Opportunity Cost.
d. Opportunity Cost:
The Opportunity Cost for any Plan Year shall be calculated by
multiplying (a) the sum of (i) the total amount of premiums set
forth in the insurance policies described above, (ii) the amount of
any Index Benefits (described at subparagraph b above), and (iii)
the amount of all previous years after-tax Opportunity Costs; by
(b) the average annualized after-tax cost of funds calculated using
a one-year U.S. Treasury Bill as published in the Wall Street
Journal. The applicable tax rate used to calculate the Opportunity
Cost shall be the Bank's marginal tax rate until the Director's
Retirement, or other termination of service (including a Change in
Control). Thereafter, the Opportunity Cost shall be calculated
with the assumption of a marginal forty-two percent (42%)
corporate tax rate each year regardless of whether the actual
marginal tax rate of the Bank is higher or lower.
EXAMPLE
INDEX BENEFITS
[n] [A]
Index
End of Cash Surrender [Annual Opportunity Annual Cumulative
Year Value of Life [Policy Cost Benefit Benefit
Insurance Policy Income] A0 = premium B-C D+Dn-1
An-An-1 A0+Cn-1x.05x
(1-42%)
0 $1,000,000 -- -- -- --
1 $1,050,000 $50,000 $29,000 $21,000 $21,000
2 $1,102,500 $52,500 $29,841 $22,659 $43,659
3 $1,157,625 $55,125 $30,706 $24,419 $68,078
.
.
.
Assumptions: Initial Insurance = $1,000,000
Effective Tax Rate = 42%
One Year US Treasury Yield = 5%
44
2. Director Benefits Payments.
The Director shall be entitled to payment of the Applicable Percentage of
(i) the balance in the Benefit Account in installments upon the terms as
specified in the Agreement, and (ii) the Index Benefit for each Plan Year
payable in installments until the Director's death.
45
SCHEDULE C
BENEFICIARY DESIGNATION
To the Administrator of the Saratoga National Bank Director Supplemental
Compensation Agreement:
Pursuant to the Provisions of my Director Supplemental Compensation
Agreement with Saratoga National Bank, permitting the designation of a
beneficiary or beneficiaries by a participant, I hereby designate the following
persons and entities as primary and secondary beneficiaries of any benefit under
said Agreement payable by reason of my death:
Primary Beneficiary:
______________________ ____________________ _____________________________
Name Address Relationship
Secondary (Contingent) Beneficiary:
______________________ _____________________ ____________________________
Name Address Relationship
THE RIGHT TO REVOKE OR CHANGE ANY BENEFICIARY
DESIGNATION IS HEREBY RESERVED. ALL PRIOR DESIGNATIONS,
IF ANY, OF PRIMARY BENEFICIARIES AND SECONDARY
BENEFICIARIES ARE HEREBY REVOKED.
The Administrator shall pay all sums payable under the Agreement by
reason of my death to the Primary Beneficiary, if he or she survives me, and if
no Primary Beneficiary shall survive me, then to the Secondary Beneficiary,
and if no named beneficiary survives me, then the Administrator shall pay all
amounts in accordance with the terms of my Director Supplemental Compensation
Agreement. In the event that a named beneficiary survives me and dies prior to
receiving the entire benefit payable under said Agreement, then and in that
event, the remaining
46
unpaid benefit payable according to the terms of my Director Supplemental
Compensation Agreement shall be payable to the personal representatives of the
estate of said beneficiary who survived me but died prior to receiving the
total benefit provided by my Director Supplemental Compensation Agreement.
Dated: ___________, 1998 __________________________
__________________
CONSENT OF THE DIRECTOR'S SPOUSE
TO THE ABOVE BENEFICIARY DESIGNATION:
I, ______________, being the spouse of __________________, after being
afforded the opportunity to consult with independent counsel of my choosing, do
hereby acknowledge that I have read, agree and consent to the foregoing
Beneficiary Designation which relates to the Director Supplemental Compensation
Agreement entered into by my spouse effective as of ___________, 1998. I
understand that the above Beneficiary Designation may affect certain rights
which I may have in the benefits provided for under the terms of the Director
Supplemental Compensation Agreement and in which I may have a marital
property interest.
Dated: ___________, 1998
______________________________
__________________
47
SCHEDULE D
DISTRIBUTION ELECTION
Pursuant to the provisions of my Director Supplemental Compensation Agreement
with Saratoga National Bank, I hereby elect to have any distribution of the
balance in my Benefit Account paid to me in installments as designated below:
thirty-six (36) monthly installments with the amount of
each installment determined as of each installment date by
dividing the entire amount in my Benefit Account by the
number of installments then remaining to be paid, with
the final installment to be the entire remaining balance
in the Benefit Account.
sixty (60) monthly installments with the amount of each
installment determined as of each installment date by
dividing the entire amount in my Benefit Account by the
number of installments then remaining to be paid, with
the final installment to be the entire remaining balance
in the Benefit Account.
one hundred twenty (120) monthly installments with the
amount of each installment determined as of each
installment date by dividing the entire amount in my
Benefit Account by the number of installments then
remaining to be paid, with the final installment to be the
entire remaining balance in the Benefit Account.
one hundred eighty (180) monthly installments with the
amount of each installment determined as of each
installment date by dividing the entire amount in my
Benefit Account by the number of installments then
remaining to be paid, with the final installment to be the
entire remaining balance in the Benefit Account.
Dated: ____________, 1998
Signed: _______________________
__________________
10QEX10.11