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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 19__;
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 1.10 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 1.7
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 Surrogate'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 Surrogate'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 Surrogate'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 Surrogate'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
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more of the combined voting 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. 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).
1.7. 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.
1.8. 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. Removal for Cause. The term "Removal for Cause" shall mean
termination of the employment of the Director by reason of any of the following
determined in good faith by the Bank's Board of Directors:
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(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.
1.13. 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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1.14. Surrogate. The term "Surrogate" shall mean the individual
selected as a substitute insured for the Director for purposes related to any
insurance policy applicable to this Agreement.
1.15. 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.
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 1.8 above.
(a) In the event the Director elects to Retire on a date which
constitutes an Early Retirement Date, and provided that the Surrogate is alive
at the date the Director Retires, 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, payable (i) for the period
designated in Schedule "D" in the case of the balance in the Benefit Account
and (ii) until the first to occur of the Director's death or the Surrogate's
death in the case of the Index Benefit defined in Schedule "B".
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(b) In the event the Director elects to Retire on a date which
constitutes an Early Retirement Date, and provided that the Surrogate has
predeceased the Director at the date the Director Retires, the Director shall be
entitled to the payments specified in subparagraph 3.3 below.
3.2. Payments Upon Retirement.
(a) If the Director remains a member of the Board of Directors
of the Bank until attaining sixty-two (62) years of age, and provided that the
Surrogate is alive at the date the Director Retires, 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 first to occur of the Director's death or the Surrogate'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.
(b) If the Director remains a member of the Board of Directors
of the Bank until attaining sixty-two (62) years of age, and provided that the
Surrogate has predeceased the Director at the date the Director Retires, the
Director shall be entitled to the payments specified in subparagraph 3.3 below.
3.3. Payments in the Event of Surrogate's Death Before Retirement.
Notwithstanding subparagraph 3.1(a) and subparagraph 3.2(a), if the Surrogate
dies before the Director Retires, then upon the Director's Retirement, the
Director Benefits to which the Director would otherwise be entitled shall be
adjusted such that the portion of such Director Benefits which is derived by
reference to an insurance policy, if any, underwritten using a surrogate insured
(a "Surrogate Policy") shall be paid as follows: the Bank shall pay to the
Director the Applicable Percentage of (i) that portion of the balance, if any,
in the Benefit Account as of the date of the Surrogate's death which is
derived by reference to a Surrogate Policy, if any, payable 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 on such later date
as may be mutually agreed upon by the Director and the Bank in advance of said
Retirement date) for the period designated in Schedule "D". Upon the death of
the Director before receiving all of the Director Benefits to which the Director
is entitled, the Bank shall pay to the Director's designated beneficiary(ies)
the Applicable Percentage of the balance, if any, of the Benefit Account which
is derived by reference to a Surrogate Policy, if any, in lump sum. The
remaining Director Benefits to which the Director is entitled which are derived
without reference to any Surrogate Policy shall continue to be paid as specified
in the applicable provisions of this Agreement.
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3.4. Payments in the Event of Death After Retirement.
(a) If the Director Retires, but shall die before receiving
all of the Director Benefits, and provided that the Surrogate is alive at the
date of the Director's death, the Bank will pay to the Director's designated
beneficiary(ies) the Applicable Percentage of the balance, if any, of the
Benefit Account, in lump sum, and up to twenty (20) annual Index Benefit
installment payments in the amounts that otherwise would have been paid to the
Director if still alive and which are derived by reference to a Surrogate
Policy, if any, minus the number of annual Index Benefit installment payments
made to the Director prior to the Director's death. Upon the death of the
Surrogate, such installment payments shall cease whether or not any unpaid
portion of the twenty (20) installment payments shall remain unpaid.
(b) If the Director Retires, but the Surrogate shall
predecease the Director, the Director shall be entitled to receive the payments
specified in subparagraph 3.3 above.
(c) 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.
(a) If the Director dies at any time after the Effective Date
of this Agreement but prior to Retirement, and provided that the Surrogate is
alive at the date of the Director's death, the Bank agrees to pay to the
Director's designated beneficiary(ies) the Applicable Percentage of the balance,
if any, in the Benefit Account, in lump sum, and up to twenty (20) annual Index
Benefit installment payments in the amounts that otherwise would have
been paid to the Director if still alive and which are derived by reference to a
Surrogate Policy, if any. Upon the death of the Surrogate, such installment
payments shall cease whether or not any unpaid portion of the twenty (20)
installment payments shall remain unpaid.
(b) If the Director dies at any time after the Effective Date
of this Agreement but prior to Retirement, and provided that the Surrogate has
predeceased the Director, the Bank agrees to pay to the Director's designated
beneficiary(ies) the Applicable Percentage of the balance, if any, of the
Benefit Account in lump sum.
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(c) 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 paid the Applicable
Percentage of the Director Benefits which the Director may be entitled to
receive, 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 first to occur of
the Director's death or the Surrogate'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
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 first to occur of the Director's death or
the Surrogate'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
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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 first to occur of the Director's death or the
Surrogate'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 1.12 of this
Agreement) and pursuant to subparagraph 1.12 (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 1.12(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
(i) for the period designated in Schedule "D" in the case of the balance in the
Benefit Account and (ii) until the first to occur of the Director's death or the
Surrogate'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
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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 first to occur of the Director's death or the Surrogate'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:
(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;
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(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 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
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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.
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").
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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
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
68
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: ______________________
______________________
______________________
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
69
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.
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.
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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:____________________________ _____________________________
Richard L. Mount __________________
President and Chief
Executive Officer
71
SCHEDULE A
CALENDAR YEAR APPLICABLE PERCENTAGE
__________, 1981 to December 31, 1998. . . . 80.00%
December 31, 1999. . . . . . . . . . . . . . 90.00%
December 31, 2000. . . . . . . . . . . . . . 100.00%
72
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
subsequently surrendered or lapsed, then the Bank shall receive
73
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] [B] [C] [D]
End of Cash Surrender Index Opportunity Annual Cumulative
Year Value of Life [Annual Cost Benefit Benefit
Insurance Policy Policy A0=premium B-C D+Dn-1
Income] A0+Cn-1x.05x
An-An-1 (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%
74
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, and (ii) the Index
Benefit for each Plan Year payable in installments, upon the terms as specified
in the Agreement until the Director's death.
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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 unpaid benefit payable according to the terms of my
Director Supplemental Compensation Agreement
76
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
______________________________
_________________
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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: _______________________
__________________