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EXECUTIVE 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 "Employer"), and __________________, an individual residing in
the State of California (the "Executive").
R E C I T A L S
WHEREAS, the Executive has been an employee of the Employer since
_____________, 19__, and is currently serving as its
_________________________;
WHEREAS, the Employer desires to establish a compensation benefit
program as a fringe benefit for executive officers of the Employer in order to
attract and retain individuals with extensive and valuable experience in the
banking industry;
WHEREAS, the Executive's experience and knowledge of the affairs of the
Employer and the banking industry are extensive and valuable;
WHEREAS, it is deemed to be in the best interests of the Employer to
provide the Executive with certain fringe benefits, on the terms and conditions
set forth herein, in order to reasonably induce the Executive to remain in the
Employer's employment and to compensate the Employee for valuable services
heretofore rendered to the Employer; and
WHEREAS, the Executive and the Employer wish to specify in writing the
terms and conditions upon which this additional compensatory incentive will be
provided to the Executive, or to the Executive's spouse or the Executive's
designated beneficiaries, as the case may be.
NOW, THEREFORE, in consideration of the services to be performed by
the Executive in the future, as well as the mutual promises and covenants
contained herein, the Executive and the Employer agree as follows:
A G R E E M E N T
1. Terms and Definitions.
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1.1. Administrator. The Employer 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 Executive's commencement of service to the Employer.
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) 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 Executive's death, or Disability (as defined
in subparagraph 1.6 below), which death or Disability occurs prior to the
termination of the Executive's employment by the Employer; and (ii)
notwithstanding subclause (i) of this subparagraph 1.2, zero percent (0%) in the
event the Executive takes any intentional action which prevents the Employer
from collecting the proceeds of any life insurance policy which the Employer
may happen to own at the time of the Executive's death and of which the Employer
is the designated beneficiary. Furthermore, notwithstanding the foregoing, or
anything contained in this Agreement to the contrary, in the event the Executive
takes any intentional action which prevents the Employer from collecting the
proceeds of any life insurance policy which the Employer may happen to own at
the time of the Executive's death and of which the Employer is the designated
beneficiary: (1) the Executive'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 Employer shall have the right to recover from
the Executive's estate all of the amounts paid to the Executive's estate
(with respect to amounts paid prior to the Executive's death or paid to the
Executive'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 Executive's death.
1.3. Beneficiary. The term "beneficiary" or "designated
beneficiary" shall mean the person or persons whom the Executive 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 Executive and received by the
Administrator prior to the Executive'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 Employer
(with the term "Employer" being defined for purposes of determining whether a
"Change in Control" has occurred to include any parent bank holding company
owning 100% of the Employer'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
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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 Employer or any stock exchange on which
the Employer's shares are listed which requires the reporting of a change in
control; (ii) any merger, consolidation or reorganization of the Employer in
which the Employer 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 Employer having an aggregate fair market
value of fifty percent (50%) of the total value of the assets of the Employer,
reflected in the most recent balance sheet of the Employer; (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 Employer
representing twenty-five percent (25%) or more of the combined voting power of
the Employer'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 Employer cease for any reason to constitute at
least a majority thereof, unless the election, or the nomination for election
by the Employer'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 Employer for the benefit of employees including
the Executive. In the absence of such a policy which extends coverage to the
Executive 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. Early Retirement Date. The term "Early Retirement
Date" shall mean the Retirement, as defined below, of the Executive on a date
which occurs prior to the Executive attaining sixty-two (62) years of age, but
after the Executive has attained fifty-five (55) years of age.
1.8. Effective Date. The term "Effective Date" shall mean
the date first written above.
1.9. ERISA. The term "ERISA" shall mean the Employee
Retirement Income Security Act of 1974, as amended.
1.10. Executive Benefits. The term "Executive Benefits" shall
mean the benefits determined in accordance with Schedule "B", and reduced or
adjusted to the extent: (i)
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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
Employer; or (iii) required in order for the Employer 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).
1.11. Plan Year. The term "Plan Year" shall mean the
Employer's fiscal year.
1.12. Retirement. The term "Retirement" or "Retires" shall
refer to the date which the Executive acknowledges in writing to Employer to be
the last day the Executive will provide any significant personal services,
whether as an employee or independent consultant or contractor, to Employer.
For purposes of this Agreement, the phrase "significant personal services" shall
mean more than ten (10) hours of personal services rendered to one or more
individuals or entities in any thirty (30) day period.
1.13. Surviving Spouse. The term "Surviving Spouse" shall
mean the person, if any, who shall be legally married to the Executive on the
date of the Executive's death.
1.14. Termination for Cause. The term "Termination for
Cause" shall mean termination of the employment of the Executive by reason of
any of the following determined in good faith by the Employer's Board of
Directors:
(a) The willful, intentional and material breach or
the habitual and continued neglect by the
Executive of his or her employment
responsibilities and duties;
(b) The continuous mental or physical incapacity of
the Executive, subject to disability rights under
this Agreement;
(c) The Executive's willful and intentional violation
of any federal banking or securities laws, or of
the Bylaws, rules, policies or resolutions of
Employer, 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 Employer,
which has a material adverse effect upon the
Employer;
(d) The written determination by a state or federal
banking agency or governmental authority
having jurisdiction over the Employer that
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Executive is not suitable to act in the capacity
for which he or she is employed by Employer;
(e) The Executive's conviction of (i) any felony or
(ii) a crime involving moral turpitude, or the
Executive's willful and intentional commission
of a fraudulent or dishonest act; or
(f) The Executive's willful and intentional
disclosure, without authority, of any secret or
confidential information concerning Employer
or taking any action which the Employer'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 Employer.
2. Scope, Purpose and Effect.
2.1. Contract of Employment. Although this Agreement is
intended to provide the Executive with an additional incentive to remain in the
employ of the Employer, this Agreement shall not be deemed to constitute a
contract of employment between the Executive and the Employer nor shall any
provision of this Agreement restrict or expand the right of the Employer to
terminate the Executive's employment. This Agreement shall have no impact or
effect upon any separate written Employment Agreement which the Executive may
have with the Employer, it being the parties' intention and agreement that
unless this Agreement is specifically referenced in said Employment Agreement
(or any modification thereto), this Agreement (and the Employer's obligations
hereunder) shall stand separate and apart and shall have no effect on or be
affected by, the terms and provisions of said Employment Agreement.
2.2. Fringe Benefit. The benefits provided by this
Agreement are granted by the Employer as a fringe benefit to the Executive and
are not a part of any salary reduction plan or any arrangement deferring a bonus
or a salary increase. The Executive 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 Executive
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 Executive elects to
Retire on a date which constitutes an Early Retirement Date, the Executive shall
be entitled to be paid the Applicable Percentage of the Executive 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
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such later date as may be mutually agreed upon by the Executive and the
Employer 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 Executive's death in the case of the Index Benefit defined in
Schedule "B".
3.2. Payments Upon Retirement. If the Executive remains
in the employment of the Employer until attaining sixty-two (62) years of age,
the Executive shall be entitled to be paid the Applicable Percentage of the
Executive Benefits, in substantially equal monthly installments on the first day
of each month, beginning with the month following the month in which the
Executive Retires or upon such later date as may be mutually agreed upon by the
Executive and the Employer 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 Executive's death in the case of the Index Benefit
defined in Schedule "B". At the Employer's sole and absolute discretion, the
Employer may increase the Executive Benefits as and when the Employer determines
the same to be appropriate.
3.3. Payments in the Event of Death After Retirement.
The Employer agrees that if the Executive Retires, but shall die before
receiving all of the Executive Benefits Payments specified in Schedule "B", the
Employer agrees to pay the Applicable Percentage of the Executive Benefits to
the Executive's designated beneficiary in lump sum. If a valid Beneficiary
Designation is not in effect, then the remaining amounts due to the Executive
under the terms of this Agreement shall be paid to the Executive's Surviving
Spouse. If the Executive leaves no Surviving Spouse, the remaining amounts due
to the Executive under the terms of this Agreement shall be paid to the duly
qualified personal representative, executor or administrator of the Executive'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 Executive dies at any time after the Effective Date of this Agreement,
but prior to Retirement, the Employer agrees to pay the Applicable Percentage of
the Executive Benefits to the Executive's designated beneficiary in lump sum.
If a valid Beneficiary Designation is not in effect, then the remaining amounts
due to the Executive under the terms of this Agreement shall be paid to the
Executive's Surviving Spouse. If the Executive leaves no Surviving Spouse, the
remaining amounts due to the Executive under the terms of this Agreement shall
be paid to the duly qualified personal representative, executor or administrator
of the Executive's estate.
4.2. Payments in the Event of Disability Prior to
Retirement. In the event the Executive becomes Disabled at any time after the
Effective Date of this Agreement but prior to Retirement, the Executive shall be
entitled to be paid the Applicable Percentage of the Executive Benefits, in
substantially equal monthly installments on the first day of each month,
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beginning with the month following the month in which the Executive 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 Executive's death in the
case of the Index Benefit defined in Schedule "B".
5. Payments in the Event Employment Is Terminated Prior to
Retirement. As indicated in subparagraph 2.1 above, the Employer reserves the
right to terminate the Executive's employment, with or without cause but subject
to any written employment agreement which may then exist, at any time prior to
the Executive's Retirement. In the event that the employment of the Executive
shall be terminated, other than by reason of death, Disability or Retirement,
prior to the Executive's attaining sixty-two (62) years of age, then this
Agreement shall terminate upon the date of such termination of employment;
provided, however, that the Executive shall be entitled to the following
benefits as may be applicable depending upon the circumstances surrounding the
Executive's termination:
5.1. Termination Without Cause. If the Executive's
employment is terminated by the Employer without cause, and such termination is
not subject to the provisions of subparagraph 5.4 below, the Executive shall be
entitled to be paid the Applicable Percentage of the Executive Benefits, in
substantially equal monthly installments on the first day of each month,
beginning with the month following the month in which the Executive attains
fifty-five (55) years of age or any month thereafter, as requested in writing by
the Executive and delivered to the Employer or its successor thirty (30) days
prior to the commencement of installment payments; provided, however, that in
the event the Executive 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 Executive 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 Executive's death in the case of the Index Benefit defined in Schedule "B".
5.2. Voluntary Termination by the Executive. If the
Executive's employment is terminated by voluntary resignation and such
resignation is not subject to the provisions of subparagraph 5.4 below, the
Executive shall be entitled to be paid the Applicable Percentage of the
Executive Benefits, in substantially equal monthly installments on the first day
of each month, beginning with the month following the month in which the
Executive attains fifty-five (55) years of age or any month thereafter, as
requested in writing by the Executive and delivered to the Employer or its
successor thirty (30) days prior to the commencement of installment payments;
provided, however, that in the event the Executive 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
Executive 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 Executive's death in the case of the Index
Benefit defined in Schedule "B".
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5.3. Termination for Cause. The Executive agrees that if
the Executive's employment with the Employer is terminated "for cause" (as
defined in subparagraph 1.14 of this Agreement) and pursuant to subparagraph
1.14(c), (d) or (e), the Executive shall forfeit any and all rights and benefits
the Executive 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
Executive by the Employer pursuant to the terms of this Agreement. In the event
that the Executive's employment with the Employer is terminated "for cause"
pursuant to subparagraph 1.14(a), (b) or (f), the Executive shall be entitled to
be paid the Applicable Percentage of the Executive Benefits, in substantially
equal monthly installments on the first day of each month, beginning with the
month following the month in which the Executive attains fifty-five (55) years
of age or any month thereafter, as requested in writing by the Executive and
delivered to the Employer or its successor thirty (30) days prior to the
commencement of installment payments; provided, however, that in the event
the Executive 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 Executive 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 Executive's death in the case of the Index Benefit defined in Schedule "B".
5.4. Termination by the Employer on Account of or After
a Change in Control. In the event: (i) the Executive's employment with the
Employer is terminated by the Employer in conjunction with, or by reason of, a
"Change in Control" (as defined in subparagraph 1.4 above); or (ii) by reason of
the Employer's actions any adverse and material change occurs in the scope of
the Executive's position, responsibilities, duties, salary, benefits, or
location of employment (which in the event of relocation of more than thirty
(30) miles from the location of the Executive's office prior to a Change in
Control shall constitute such an adverse and material change) after a Change
in Control occurs; or (iii) the Employer causes an event to occur which
reasonably constitutes or results in a demotion, a significant diminution of
responsibilities or authority, or a constructive termination (by forcing a
resignation or otherwise) of the Executive's employment after a Change in
Control occurs, then the Executive shall be entitled to be paid the Applicable
Percentage of the Executive 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 Executive attains fifty-five (55) years
of age or any month thereafter, as requested in writing by the Executive and
delivered to the Employer or its successor thirty (30) days prior to the
commencement of installment payments; provided, however, that in the event the
Executive 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 Executive 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 Executive's
death in the case of the Index Benefit defined in Schedule "B". In the absence
of the occurrence of an
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event described above in this subparagraph 5.4 (i), (ii) or (iii), the
provisions of this Agreement shall remain in full force and effect, provided,
however, that the Executive shall not be entitled to receive any payments or
benefits under this Agreement in the event of the Executive's voluntary
termination by resignation under subparagraph 5.2 of this Agreement within six
(6) months following a Change in Control.
5.5. Payments in the Event of Death Following Termination.
If the Executive dies prior to receiving all of the Executive Benefits described
in this Paragraph 5 to which the Executive is entitled, then the Employer
will make such payments to the Executive's designated beneficiary in lump sum.
If a valid Beneficiary Designation is not in effect, then the remaining amounts
due to the Executive under the terms of this Agreement shall be paid to the
Executive's Surviving Spouse. If the Executive leaves no Surviving Spouse, the
remaining amounts due to the Executive under the terms of this Agreement shall
be paid to the duly qualified personal representative, executor or administrator
of the Executive's estate.
6. Section 280G Adjustment. The Executive 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 Executive agrees that, notwithstanding anything
contained herein to the contrary, in the event that any payment or benefit
received or to be received by the Executive, whether payable pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the
Employer (together with the Executive 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 Executive shall have effectively waived in writing prior
to the date of payment of any future Executive 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 Employer
and acceptable to the Executive, 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
Executive pursuant to the terms of this Agreement and any other plan,
arrangement or agreement with the Employer in the order determined by mutual
agreement of the Employer and the Executive;
(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
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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 Employer and acceptable to the Executive
in accordance with the principles of Section 280G of the Code.
7. Right To Determine Funding Methods. The Employer 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 Executive, the Executive's spouse or the Executive's
beneficiaries under the terms of this Agreement. In the event that the Employer
elects to fund this Agreement, in whole or in part, through the use of life
insurance or annuities, or both, the Employer shall determine the ownership and
beneficial interests of any such policy of life insurance or annuity.
The Employer 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 Executive, the Executive's spouse nor the
Executive's beneficiaries shall have any right, title or interest in or
to any funding source or amount utilized by the Employer pursuant to this
Agreement, and any such funding source or amount shall not constitute security
for the performance of the Employer's obligations pursuant to this Agreement.
In connection with the foregoing, the Executive agrees to execute such documents
and undergo such medical examinations or tests which the Employer may request
and which may be reasonably necessary to facilitate any funding for this
Agreement including, without limitation, the Employer's acquisition of any
policy of insurance or annuity. Furthermore, a refusal by the Executive 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 Executive, the Executive's spouse and the Executive's
beneficiaries of any and all rights to payment hereunder.
8. Claims Procedure. The Employer 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 Employer shall make
all determinations as to the rights to benefits under this Agreement. Any
decision by the Employer denying a claim by the Executive, the Executive's
spouse, or the Executive's beneficiary for benefits under this Agreement shall
be stated in writing and delivered or mailed, via registered or certified mail,
to the Executive, the Executive's spouse or the Executive's beneficiary, as the
case may be. Such decision shall set forth the specific reasons for the denial
of a claim. In addition, the Employer shall provide the Executive, the
Executive's spouse or the Executive's beneficiary with a reasonable opportunity
for a full and fair review of the decision denying such claim.
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9. Status as an Unsecured General Creditor. Notwithstanding
anything contained herein to the contrary: (i) neither the Executive, the
Executive's spouse or the Executive's designated beneficiaries shall have any
legal or equitable rights, interests or claims in or to any specific property or
assets of the Employer as a result of this Agreement; (ii) none of the
Employer's assets shall be held in or under any trust for the benefit of the
Executive, the Executive's spouse or the Executive's designated beneficiaries
or held in any way as security for the fulfillment of the obligations of the
Employer under this Agreement; (iii) all of the Employer's assets shall be and
remain the general unpledged and unrestricted assets of the Employer; (iv) the
Employer's obligation under this Agreement shall be that of an unfunded and
unsecured promise by the Employer to pay money in the future; and (v) the
Executive, the Executive's spouse and the Executive'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
Employer and the Executive acknowledge and agree that, in the event of a Change
in Control, upon request of the Executive, or in the Employer's discretion if
the Executive does not so request and the Employer nonetheless deems it
appropriate, the Employer 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 Employer, in its sole
discretion, deems appropriate and in compliance with applicable provisions of
the Code, in order to permit the Employer 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 Employer to be used
exclusively for discharge of the Employer's obligations pursuant to this
Agreement and shall continue to be subject to the claims of the Employer's
general creditors until paid to the Executive 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
Employer 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 Executive (or Executive's spouse or designated
beneficiaries): (i) consents to the revised payout terms determined
appropriate by the Employer'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 Employer's Board of Directors and offered
to the Executive [or Executive's spouse or designated beneficiaries] on a "take
it or leave it basis").
11. Miscellaneous.
11.1. Opportunity To Consult With Independent Advisors.
The Executive acknowledges that he has been afforded the opportunity to consult
with independent
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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
Executive'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 Executive acknowledges and agrees shall be the sole responsibility
of the Executive notwithstanding any other term or provision of this Agreement.
The Executive further acknowledges and agrees that the Employer shall have no
liability whatsoever related to any such personal tax effects or other personal
costs, expenses, or liabilities applicable to the Executive and further
specifically waives any right for the Executive, himself, and his heirs,
beneficiaries, legal representatives, agents, successors, and assigns to claim
or assert liability on the part of the Employer related to the matters described
above in this subparagraph 11.1. The Executive 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 Employer 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 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
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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
Executive or the Employer 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 Employer: Saratoga National Bank
12000 Saratoga-Sunnyvale Rd.
Saratoga, California 95070
Attn: Chairman of the Board
If to the Executive: ______________________
______________________
______________________
11.5. Assignment. Neither the Executive, the Executive'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 Executive, the
Executive'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 Employer. The Employer's consent, if any, to one
or more assignments or transfers shall not obligate the Employer to consent to
or be construed as the Employer's consent to any other or subsequent assignment
or transfer.
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11.6. Binding Effect/Merger or Reorganization. This Agreement
shall be binding upon and inure to the benefit of the Executive and the
Employer and, as applicable, their respective heirs, beneficiaries, legal
representatives, agents, successors and assigns. Accordingly, the Employer
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 Employer under this
Agreement. Upon the occurrence of such event, the term "Employer" 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.
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.
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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 Employer, shall govern the validity, interpretation,
construction and effect of this Agreement.
IN WITNESS WHEREOF, the Employer and the Executive have executed this
Agreement on the date first above-written in the City of Saratoga, Santa Clara
County, California.
THE EMPLOYER THE EXECUTIVE
SARATOGA NATIONAL BANK
By:____________________________ _____________________________
Richard L. Mount, __________________
President and Chief
Executive Officer
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SCHEDULE A
CALENDAR YEAR APPLICABLE PERCENTAGE
___________, 1987 to December 31, 1998 . . . 50.00%
December 31, 1999. . . . . . . . . . . . . . 60.00%
December 31, 2000. . . . . . . . . . . . . . 70.00%
December 31, 2001. . . . . . . . . . . . . . 80.00%
December 31, 2002. . . . . . . . . . . . . . 90.00%
December 31, 2003. . . . . . . . . . . . . . 100.00%
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SCHEDULE B
EXECUTIVE BENEFITS
1. Executive Benefits Determination.
The Executive 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 Employer for the benefit of the
Executive. Prior to the date on which the Executive 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 Executive ceases to be
employed by the Employer) 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 Executive becomes eligible to receive
payments under the Agreement, the Index Benefit for the
Executive 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
Employer, 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 Employer shall
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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 Employer's marginal tax rate until the Executive'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 Employer is higher or lower.
EXAMPLE
INDEX BENEFITS
[n]
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 $29,840 $22,650 $43,659
3 $1,157,620 $55,120 $30,700 $24,410 $68,078
.
.
.
Assumptions: Initial Insurance = $1,000,000
Effective Tax Rate = 42%
One Year US Treasury Yield = 5%
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2. Executive Benefits Payments.
The Executive 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 Executive's death.
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SCHEDULE C
BENEFICIARY DESIGNATION
To the Administrator of the Saratoga National Bank Executive Supplemental
Compensation Agreement:
Pursuant to the Provisions of my Executive 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 Executive 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
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unpaid benefit payable according to the terms of my Executive 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 Executive Supplemental Compensation Agreement.
Dated: _____________, 1998 ________________________
__________________
CONSENT OF THE EXECUTIVE'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 Executive 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
Executive 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 Executive 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 he final installment to be the entire
remaining balance in the Benefit Account.
Dated: _______________, 1998
Signed: _____________________________
__________________