FIRST NATIONAL BANK OF NORTHERN CALIFORNIA
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is adopted this 9th day of September, 2004, by and
between FIRST NATIONAL BANK OF NORTHERN CALIFORNIA, a nationally-chartered
commercial bank located in South San Francisco, California (the "Company"), and
ANTHONY J. CLIFFORD (the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to provide salary continuation benefits to the Executive. The
Company will pay the benefits from its general assets.
AGREEMENT
The Company and the Executive agree as follows:
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Change of Control" means (a) any merger or consolidation of
the Company in which the Company is not the surviving corporation; or (b) any
sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) of any assets of the Company having an
aggregate fair market value of fifty percent (50%) or more of the total value of
the assets of the Company' and its consolidated subsidiaries reflected in the
most recent balance sheet of the Company; or (c) any person (as such term is
defined in Section 13(d) and 14(d)(2) of the Securities and Exchange Act of
1934) becomes a beneficial owner, directly or indirectly, of securities of the
Company representing twenty-five percent (25%) or more of the combined voting
power of the Company's then outstanding securities.
1.2 "Code" means the Internal Revenue Code of 1986, as amended.
1.3 "Disability" means that the Executive is permanently disabled,
due to an illness or injury, so that the Executive is unable to perform to a
material degree his or her current or later designated duties as an Executive
Officer of the Company. Such disability shall be determined by an independent
physician in the event of physical disability or by an independent psychiatrist
in the event of mental disability, selected with the approval of the Company and
the Executive. If they cannot agree on the selection, each shall submit a list
of three physicians or psychiatrists as applicable, each shall strike two from
the other's list, and the final choice shall be selected by lot (coin flip).
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1.4 "Early Involuntary Termination" means that the Executive,
prior to Normal Retirement Age, has been notified in writing that employment
with the Company is terminated for reasons other than an approved leave of
absence, Termination for Cause, Disability, or Early Voluntary Termination.
1.5 "Early Termination" means the Termination of Employment before
Normal Retirement Age for reasons other than death, Disability, Termination for
Cause or following a Change of Control.
1.6 "Early Voluntary Termination" means that the Executive, prior
to Normal Retirement Age, has terminated employment with the Company for reasons
other than Termination for Cause, Disability, or Early Involuntary Termination.
1.7 "Early Termination Date" means the month, day and year in
which Early Termination occurs.
1.8 "Effective Date" means November 1, 2003.
1.9 "Normal Retirement Age" means the Executive attaining age
sixty-five (65).
1.10 "Normal Retirement Date" means the later of the Normal
Retirement Age or Termination of Employment.
1.11 "Plan Year" means a twelve-month period commencing on January
1 and ending on December 31 of each year. The initial Plan Year shall begin on
the Effective Date of this Agreement.
1.12 "Termination for Cause" shall be defined as set forth in
Article 5.
1.13 "Termination of Employment" means that the Executive ceases to
be employed by the Company for any reason, voluntary or involuntary, other than
by reason of a leave of absence approved by the Company.
1.14 "Years of Service" means the total number of Plan years during
which the Executive is employed on a full-time basis by the Company, inclusive
of any approved leave of absence. Employed on a full-time basis means that the
Executive is considered by the Company to be employed to work at minimum forty
(40) hours a week which is determined on the first and last days of the Plan
Year.
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. Upon Termination of Employment on
or after the Normal Retirement Age for reasons other than death, the Company
shall pay to the Executive the benefit described in this Section 2.1 in lieu of
any other benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this
Section 2.1 is $140,700 (One Hundred Forty Thousand Seven Hundred
Dollars). The Company, in its sole discretion, may increase the annual
benefit under this Section 2.1.1; however, any increase shall require
the recalculation of Schedule A.
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2.1.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in twelve (12) equal monthly installments
commencing with the first of the month following the Executive's Normal
Retirement Date, paying the annual benefit to the Executive for a
period of twenty (20) years.
2.2 Early Voluntary Termination Benefit. The Company shall not pay
an Early Voluntary Termination Benefit under this Agreement.
2.3 Early Involuntary Termination Benefit. Upon Early Involuntary
Termination, the Company shall pay to the Executive the benefit described in
this Section 2.3 in lieu of any other benefit under this Agreement.
2.3.1 Amount of Benefit. If the Executive has completed at
least one Year of Service, the benefit under this Section 2.2 is the
Early Voluntary Termination amount set forth on Schedule A for the Plan
Year ending immediately prior to the Early Termination Date, determined
by vesting the Executive in one hundred percent (100%) of the Accrual
Balance for said Plan Year. Any increase in the annual benefit under
Section 2.1.1 shall require the recalculation of this benefit on
Schedule A. This benefit is determined by calculating a twenty-year
fixed annuity from said Accrual Balance, crediting interest on the
unpaid balance at an annual rate of 6%, compounded monthly, subject to
change at the Board's discretion.
2.3.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in twelve (12) equal monthly installments
commencing with the first of the month following the Executive's
attaining Normal Retirement Age, paying the annual benefit to the
Executive for a period of twenty (20) years.
2.4 Disability Benefit. If the Executive terminates employment due
to Disability prior to Normal Retirement Age, the Company shall pay to the
Executive the benefit described in this Section 2.4 in lieu of any other benefit
under this Agreement.
2.4.1 Amount of Benefit. The benefit under this Section 2.4
is the Disability amount set forth on Schedule A for the Plan Year
ending immediately prior to Termination of Employment (except during
the first Plan Year, the benefit is the amount set forth for Plan Year
1), determined by vesting the Executive in one hundred percent (100%)
of the Accrual Balance for said Plan Year. Any increase in the annual
benefit under Section 2.1.1 would require the recalculation of this
Disability benefit on Schedule A. This benefit is determined by
calculating a twenty-year fixed annuity from said Accrual Balance,
crediting interest on the unpaid balance at an annual rate of 6%,
compounded monthly, subject to change at the Board's discretion.
2.4.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in twelve (12) equal monthly installments
commencing with the first of the month following the Executive's
Termination of Employment, paying the annual benefit to the Executive
for a period of twenty (20) years. 2.5 Change of Control Benefit. Upon
a Change of Control, followed within twelve (12) months by the
Executive's Termination of Employment for reasons other than death,
Disability or retirement, the Company shall pay to the Executive the
benefit described in this Section 2.5 in lieu of any other benefit
under this Agreement.
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2.5.1 Amount of Benefit. The benefit under this Section 2.5
is the Change of Control amount set forth on Schedule A for the Plan
Year ending immediately prior to Termination of Employment (except
during the first Plan Year, the benefit is the amount set forth for
Plan Year 1), determined by vesting the Executive one hundred percent
(100%) in the Normal Retirement Benefit described in Section 2.1.1.
2.5.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in twelve (12) equal monthly installments
commencing with the first of the month following the Executive
attaining Normal Retirement Age, paying the annual benefit to the
Executive for a period of twenty (20) years.
Article 3
Death Benefits
The Company shall not pay a death benefit under this Agreement while
the Executive is employed by the Company or during the payment of any benefit
under this Agreement. A death benefit may be provided according to the terms of
a separate Split Dollar Agreement entered into by the Company and the Executive.
Article 4
General Limitations
4.1 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement if the Company terminates the Executive's employment for:
(a) Willful breach of duty in the course of employment,
unless waived by the Company;
(b) Dishonest or illegal conduct of the Executive; or
(c) Habitual neglect by the Executive of the Executive's
employment duties, unless waived by the Company.
4.2 Excess Parachute Payment. Notwithstanding any provision of
this Agreement to the contrary, the Company will reduce any benefit under this
Agreement by an amount necessary to avoid an excise tax under the excess
parachute rules of Section 280G of the Code.
4.3 Misstatement. No benefits shall be payable under this
Agreement if the Executive has made any material misstatement of fact on any
application for life insurance purchased by the Company, which results in the
Company being denied its death benefit.
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Article 5
Claims and Review Procedure
5.1 For all claims other than disability benefits:
5.1.1 Claims Procedure. Any person or entity that makes a
claim ("Claimant") who has not received benefits under the Plan that
they believe should be paid shall make a claim for such benefits as
follows:
5.1.1.1 Initiation - Written Claim. The Claimant
initiates a claim by submitting to the Company a written claim
for the benefits.
5.1.1.2 Timing of Company Response. The Company
shall respond to such Claimant within 90 days after receiving
the claim. If the Company determines that special
circumstances require additional time for processing the
claim, the Company can extend the response period by an
additional 90 days by notifying the Claimant in writing, prior
to the end of the initial 90-day period, that an additional
period is required. The notice of extension must set forth the
special circumstances and the date by which the Company
expects to render its decision.
5.1.1.3 Notice of Decision. If the Company denies
part or all of the claim, the Company shall notify the
Claimant in writing of such denial. The Company shall write
the notification in a manner calculated to be understood by
the Claimant. The notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of
the Plan on which the denial is based,
(c) A description of any additional information
or material necessary for the Claimant to
perfect the claim and an explanation of why
it is needed,
(d) An explanation of the Plan's review
procedures and the time limits applicable to
such procedures, and
(e) A statement of the Claimant's right to bring
a civil action under ERISA Section 502(a)
following an adverse benefit determination
on review.
5.1.2 Review Procedure. If the Company denies part or all
of the claim, the Claimant shall have the opportunity for a full and
fair review by the Company of the denial, as follows:
5.1.2.1 Initiation - Written Request. To initiate
the review, the Claimant, within 60 days after receiving the
Company's notice of denial, must file with the Company a
written request for review.
5.1.2.2 Additional Submissions - Information Access.
The Claimant shall then have the opportunity to submit written
comments, documents, records and other information relating to
the claim. The Company shall also provide the Claimant, upon
request and free of charge, reasonable access to, and copies
of, all documents, records and other information relevant (as
defined in applicable ERISA regulations) to the Claimant's
claim for benefits.
5.1.2.3 Considerations on Review. In considering the
review, the Company shall take into account all materials and
information the Claimant submits relating to the claim,
without regard to whether such information was submitted or
considered in the initial benefit determination.
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5.1.2.4 Timing of Company Response. The Company
shall respond in writing to such Claimant within 60 days after
receiving the request for review. If the Company determines
that special circumstances require additional time for
processing the claim, the Company can extend the response
period by an additional 60 days by notifying the Claimant in
writing, prior to the end of the initial 60-day period, that
an additional period is required. The notice of extension must
set forth the special circumstances and the date by which the
Company expects to render its decision.
5.1.2.5 Notice of Decision. The Company shall notify
the Claimant in writing of its decision on review. The Company
shall write the notification in a manner calculated to be
understood by the Claimant. The notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of
the Plan on which the denial is based,
(c) A statement that the Claimant is entitled to
receive, upon request and free of charge,
reasonable access to, and copies of, all
documents, records and other information
relevant (as defined in applicable ERISA
regulations) to the Claimant's claim for
benefits, and
(d) A statement of the Claimant's right to bring
a civil action under ERISA Section 502(a).
5.2 For disability claims:
5.2.1 Claims Procedures. Any person or entity that makes a
claim ("Claimant") who has not received benefits under the Plan that
they believe should be paid shall make a claim for such benefits as
follows:
5.2.1.1 Initiation - Written Claim. The Claimant
initiates a claim by submitting to the Company a written claim
for the benefits.
5.2.1.2 Timing of Company Response. The Company
shall notify the Claimant in writing or electronically of any
adverse determination as set out in this Section.
5.2.1.3 Notice of Decision. If the Company denies
part or all of the claim, the Company shall notify the
Claimant in writing of such denial. The Company shall write
the notification in a manner calculated to be understood by
the Claimant. The notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of
the Plan on which the denial is based,
(c) A description of any additional information
or material necessary for the Claimant to
perfect the claim and an explanation of why
it is needed,
(d) An explanation of the Plan's review
procedures and the time limits applicable to
such procedures,
(e) A statement of the Claimant's right to bring
a civil action under ERISA Section 502(a)
following an adverse benefit determination
on review,
(f) [See ss.2560.503-1(g)(v)] Any internal rule,
guideline, protocol, or other similar
criterion relied upon in making the adverse
determination, or a statement that such a
rule, guideline, protocol, or other similar
criterion was relied upon in making the
adverse determination and that the Claimant
can request and receive free of charge a
copy of such rule, guideline, protocol or
other criterion from the Company, and
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(g) If the adverse benefit determination is
based on a medical necessity or experimental
treatment or similar exclusion or limit,
either an explanation of the scientific or
clinical judgment for the determination,
applying the terms of the Plan to the
Claimant's medical circumstances, or a
statement that such explanation will be
provided free of charge upon request.
5.2.1.4 Timing of Notice of Denial/Extensions. The
Company shall notify the Claimant of denial of benefits in
writing or electronically not later than 45 days after receipt
of the claim by the Plan. The Company may elect to extend
notification by two 30-day periods subject to the following
requirements:
(a) For the first 30-day extension, the Company
shall notify the Claimant (1) of the
necessity of the extension and the factors
beyond the Plan's control requiring an
extension; (2) prior to the end of the
initial 45-day period; and (3) of the date
by which the Plan expects to render a
decision.
(b) If the Company determines that a second
30-day extension is necessary based on
factors beyond the Plan's control, the
Company shall follow the same procedure in
(a) above, with the exception that the
notification must be provided to the
Claimant before the end of the first 30-day
extension period.
(c) For any extension provided under this
section, the Notice of Extension shall
specifically explain the standards upon
which entitlement to a benefit is based, the
unresolved issues that prevent a decision on
the claim, and the additional information
needed to resolve those issues. The Claimant
shall be afforded 45 days within which to
provide the specified information.
5.2.2 Review Procedures - Denial of Benefits. If the
Company denies part or all of the claim, the Claimant shall have the
opportunity for a full and fair review by the Company of the denial, as
follows:
5.2.2.1 Initiation of Appeal. Within 180 days
following notice of denial of benefits, the Claimant shall
initiate an appeal by submitting a written notice of appeal to
Company.
5.2.2.2 Submissions on Appeal - Information Access.
The Claimant shall be allowed to provide written comments,
documents, records, and other information relating to the
claim for benefits. The Company shall provide to the Claimant,
upon request and free of charge, reasonable access to, and
copies of, all documents, records, and other information
relevant (as defined in applicable ERISA regulations) to the
Claimant's claim for benefits.
5.2.2.3 Additional Company Responsibilities on
Appeal. On appeal, the Company shall:
(a) [See ss.2560.503-1(h)(3)(i)-(v)]Take into
account all materials and information the
Claimant submits relating to the claim,
without regard to whether such information
was submitted or considered in the initial
benefit determination;
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(b) Provide for a review that does not afford
deference to the initial adverse benefit
determination and that is conducted by an
appropriate named fiduciary of the Plan who
is neither the individual who made the
adverse benefit determination that is the
subject of the appeal, nor the subordinate
of such individual;
(c) In deciding an appeal of any adverse benefit
determination that is based in whole or in
part on a medical judgment, including
determinations with regard to whether a
particular treatment, drug, or other item is
experimental, investigational, or not
medically necessary or appropriate, consult
with a health care professional who has
appropriate training and experience in the
field of medicine involved in the medical
judgment;
(d) Identify medical or vocational experts whose
advise was obtained on behalf of the Plan in
connection with a Claimant's adverse benefit
determination, without regard to whether the
advice was relied upon in making the benefit
determination; and
(e) Ensure that the health care professional
engaged for purposes of a consultation under
subsection (c) above shall be an individual
who was neither an individual who was
consulted in connection with the adverse
benefit determination that is the subject of
the appeal, nor the subordinate of any such
individual.
5.2.2.4 Timing of Notification of Benefit Denial -
Appeal Denial. The Company shall notify the Claimant not later
than 45 days after receipt of the Claimant's request for
review by the Plan, unless the Company determines that special
circumstances require an extension of time for processing the
claim. If the Company determines that an extension is
required, written notice of such shall be furnished to the
Claimant prior to the termination of the initial 45-day
period, and such extension shall not exceed 45 days. The
Company shall indicate the special circumstances requiring an
extension of time and the date by which the Plan expects to
render the determination on review.
5.2.2.5 Content of Notification of Benefit Denial.
The Company shall provide the Claimant with a notice
calculated to be understood by the Claimant, which shall
contain:
(a) The specific reason or reasons for the
adverse determination;
(b) Reference to the specific plan provisions on
which the benefit determination is based;
(c) A statement that the Claimant is entitled to
receive, upon request and free of charge,
reasonable access to, and copies of all
documents, records, and other relevant
information (as defined in applicable ERISA
regulations);
(d) A statement of the Claimant's right to bring
an action under ERISA Section 502(a);
(e) [See ss.2560.503-1(j)(5)] Any internal rule,
guideline, protocol, or other similar
criterion relied upon in making the adverse
determination, or a statement that such a
rule, guideline, protocol, or other similar
criterion was relied upon in making the
adverse determination and that the Claimant
can request and receive free of charge a
copy of such rule, guideline, protocol or
other criterion from the Company;
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(f) If the adverse benefit determination is
based on a medical necessity or experimental
treatment or similar exclusion or limit,
either an explanation of the scientific or
clinical judgment for the determination,
applying the terms of the Plan to the
Claimant's medical circumstances, or a
statement that such explanation will be
provided free of charge upon request; and
(g) The following statement: "You and your plan
may have other voluntary alternative dispute
resolution options such as mediation. One
way to find out what may be available is to
contact your local U.S. Department of Labor
Office and your state insurance regulatory
agency."
Article 6
Amendments and Termination
6.1 This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Executive.
6.2 Notwithstanding Section 6.1, the Company may amend or
terminate this Agreement at any time if, pursuant to legislative, judicial or
regulatory action, continuation of the Agreement would (i) cause benefits to be
taxable to the Executive prior to actual receipt, or (ii) result in significant
financial penalties or other significantly detrimental ramifications to the
Company (other than the financial impact of paying the benefits).
Article 7
Miscellaneous
7.1 Binding Effect. This Agreement shall bind the Executive and
the Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
7.2 No Guarantee of Employment. This Agreement is not an
employment policy or contract. It does not give the Executive the right to
remain an employee of the Company, nor does it interfere with the Company's
right to discharge the Executive. It also does not require the Executive to
remain an employee nor interfere with the Executive's right to terminate
employment at any time.
7.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any manner.
7.4 Reorganization. The Company shall not merge or consolidate
into or with another company, or reorganize, or sell substantially all of its
assets to another company, firm, or person unless such succeeding or continuing
company, firm, or person agrees to assume and discharge the obligations of the
Company under this Agreement. Upon the occurrence of such event, the term
"Company" as used in this Agreement shall be deemed to refer to the successor or
survivor company.
7.5 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
7.6 Applicable Law. The Agreement and all rights hereunder shall
be governed by the laws of the State of California, except to the extent
preempted by the laws of the United States of America.
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7.7 Unfunded Arrangement. The Executive and beneficiary are
general unsecured creditors of the Company for the payment of benefits under
this Agreement. The benefits represent the mere promise by the Company to pay
such benefits. The rights to benefits are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors. Any insurance on the Executive's life
is a general asset of the Company to which the Executive and beneficiary have no
preferred or secured claim.
7.8 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Executive as to the subject matter hereof.
No rights are granted to the Executive by virtue of this Agreement other than
those specifically set forth herein.
7.9 Administration. The Company shall have powers which are
necessary to administer this Agreement, including but not limited to:
(a) Establishing and revising the method of accounting
for the Agreement;
(b) Maintaining a record of benefit payments;
(c) Establishing rules and prescribing any forms
necessary or desirable to administer the Agreement;
and
(d) Interpreting the provisions of the Agreement.
7.10 Named Fiduciary. The Company shall be the named fiduciary and
plan administrator under this Agreement. It may delegate to others certain
aspects of the management and operational responsibilities including the
employment of advisors and the delegation of ministerial duties to qualified
individuals.
IN WITNESS WHEREOF, the Executive and the Company have signed this
Agreement.
EXECUTIVE: COMPANY:
FIRST NATIONAL BANK OF NORTHERN
CALIFORNIA
/s/ ANTHONY J. CLIFFORD By /s/ THOMAS C. MCGRAW
- ---------------------------------- --------------------------------------
Anthony J. Clifford Thomas C. McGraw
Title: Chief Executive Officer
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FIRST NATIONAL BANK OF NORTHERN CALIFORNIA
SPLIT DOLLAR AGREEMENT
(ADDENDUM A TO THE FIRST NATIONAL BANK OF NORTHERN CALIFORNIA
SALARY CONTINUATION AGREEMENT)
THIS AGREEMENT is adopted this 9th day of September, 2004, by and
between FIRST NATIONAL BANK OF NORTHERN CALIFORNIA, located in South San
Francisco, California (the "Company"), and ANTHONY J. CLIFFORD (the
"Executive"). This Agreement shall append the Split Dollar Endorsement entered
into on even date herewith or as subsequently amended, by and between the
aforementioned parties.
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to divide the death proceeds of a life insurance policy on
the Executive's life. The Company will pay life insurance premiums from its
general assets.
AGREEMENT
The Company and the Executive agree as follows:
Article 1
General Definitions
The following terms shall have the meanings specified:
1.1 "Insured" means the Executive.
1.2 "Insurer" means each life insurance carrier in which there is
a Split Dollar Policy Endorsement attached to this Agreement.
1.3 "Normal Retirement Age" means the Executive attaining
sixty-five (65) years of age.
1.4 "Policy" means the specific life insurance policy or policies
issued by the Insurer.
1.5 "Salary Continuation Agreement" means that Salary Continuation
Agreement between the Company and the Executive on even date herewith or as
subsequently amended.
1.6 "Termination for Cause" shall be defined as set forth in
Article 7.
1.7 "Termination of Employment" means that the Executive ceases to
be employed by the Company for any reason, other than by reason of a leave of
absence approved by the Company.
1
Article 2
Policy Ownership/Interests
2.1 Company Ownership. The Company is the sole owner of the Policy
and shall have the right to exercise all incidents of ownership. The Company
shall be the beneficiary of the remaining death proceeds of the Policy after the
Interest of the Executive or the Executive's transferee has been paid according
to Section 2.2 below.
2.2 Executive's Interest. The Executive shall have the right to
designate the beneficiary of the death proceeds. The Executive shall also have
the right to elect and change settlement options that may be permitted. Upon the
termination of this Agreement according to Article 7 herein, the Executive, the
Executive's transferee or the Executive's beneficiary shall have no rights or
interests in the Policy and no death benefit shall be paid under this Section
2.2.
2.2.1 Death During Active Service. If the Executive dies
while in the active service of the Company, the Company shall pay to
the Executive's beneficiary the present value of the stream of payments
the Executive would have received under the Salary Continuation
Agreement if the Executive had reached Normal Retirement Age. This
amount is payable in a lump sum upon the death of the Executive.
2.2.2 Death During Payment of a Benefit under the Salary
Continuation Agreement. If the Executive dies after any benefit
payments have commenced under Article 2 of the Salary Continuation
Agreement but before receiving all such payments, the Company shall
cease paying the remaining benefit, if any, and shall then pay to the
Executive's beneficiary a split dollar death benefit equal to the
present value of the remaining stream of payments under the Salary
Continuation Plan.
2.2.3 Death After Termination of Employment But Before
Commencement of Payment under the Salary Continuation Plan. If the
Executive is entitled to a benefit under Article 2 of the Salary
Continuation Agreement, but dies prior to the commencement of said
benefit payments, the Company shall pay no benefit under the Salary
Continuation Agreement but shall pay to the Executive's beneficiary a
split dollar death benefit equal to the present value of the remaining
stream of payments under the Salary Continuation Plan.
2.3 Comparable Coverage. Upon execution of this Agreement, the
Company shall maintain the Policy in full force and effect and in no event shall
the Company amend, terminate or otherwise abrogate the Executive's interest in
the Policy, unless the Company replaces the Policy with a comparable insurance
policy to cover the benefit provided under this Agreement and the Company and
the Executive execute a new Split Dollar Policy Endorsement for said comparable
insurance policy. The Policy or any comparable policy shall be subject to the
claims of the Company's creditors.
Article 3
Premiums
3.1 Premium Payment. The Company shall pay any premiums due on the
Policy.
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3.2 Economic Benefit. The Company shall determine the economic
benefit attributable to the Executive based on the life insurance premium factor
for the Executive's age multiplied by the aggregate death benefit payable to the
Executive's beneficiary. The "life insurance premium factor" is the minimum
factor applicable under guidance published pursuant to IRS Reg. ss.
1.61-22(d)(3)(ii) or any subsequent authority.
3.3 Imputed Income. The Company shall impute the economic benefit
to the Executive on an annual basis.
Article 4
Assignment
The Executive may assign without consideration all of the Executive's
interests in the Policy and in this Agreement to any person, entity or trust. In
the event the Executive transfers all of the Executive's interest in the Policy,
then all of the Executive's interest in the Policy and in the Agreement shall be
vested in the Executive's transferee, who shall be substituted as a party
hereunder and the Executive shall have no further interest in the Policy or in
this Agreement.
Article 5
Insurer
The Insurer shall be bound only by the terms of the Policy. Any
payments the Insurer makes or actions it takes in accordance with the Policy
shall fully discharge it from all claims, suits and demands of all entities or
persons. The Insurer shall not be bound by or be deemed to have notice of the
provisions of this Agreement.
Article 6
Claims and Review Procedure
6.1 Claims Procedure. Any person or entity who has not received
benefits under the Plan that he or she believes should be paid (the "claimant")
shall make a claim for such benefits as follows:
6.1.1 Initiation - Written Claim. The claimant initiates a
claim by submitting to the Company a written claim for the benefits.
6.1.2 Timing of Company Response. The Company shall respond
to such claimant within 90 days after receiving the claim. If the
Company determines that special circumstances require additional time
for processing the claim, the Company can extend the response period by
an additional 90 days by notifying the claimant in writing, prior to
the end of the initial 90-day period that an additional period is
required. The notice of extension must set forth the special
circumstances and the date by which the Company expects to render its
decision.
6.1.3 Notice of Decision. If the Company denies part or all
of the claim, the Company shall notify the claimant in writing of such
denial. The Company shall write the notification in a manner calculated
to be understood by the claimant. The notification shall set forth:
3
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of
this Agreement on which the denial is based,
(c) A description of any additional information
or material necessary for the claimant to
perfect the claim and an explanation of why
it is needed,
(d) An explanation of this Agreement's review
procedures and the time limits applicable to
such procedures, and (e) A statement of the
claimant's right to bring a civil action
under ERISA Section 502(a) (29 United States
Code section 1132(a)) following an adverse
benefit determination on review.
6.2 Review Procedure. If the Company denies part or all of the
claim, the claimant shall have the opportunity for a full and fair review by the
Company of the denial, as follows:
6.2.1 Initiation - Written Request. To initiate the review,
the claimant, within 60 days after receiving the Company's notice of
denial, must file with the Company a written request for review.
6.2.2 Additional Submissions - Information Access. The
claimant shall then have the opportunity to submit written comments,
documents, records and other information relating to the claim. The
Company shall also provide the claimant, upon request and free of
charge, reasonable access to, and copies of, all documents, records and
other information relevant (as defined in applicable ERISA regulations)
to the claimant's claim for benefits.
6.2.3 Considerations on Review. In considering the review,
the Company shall take into account all materials and information the
claimant submits relating to the claim, without regard to whether such
information was submitted or considered in the initial benefit
determination.
6.2.4 Timing of Company Response. The Company shall respond
in writing to such claimant within 60 days after receiving the request
for review. If the Company determines that special circumstances
require additional time for processing the claim, the Company can
extend the response period by an additional 60 days by notifying the
claimant in writing, prior to the end of the initial 60-day period that
an additional period is required. The notice of extension must set
forth the special circumstances and the date by which the Company
expects to render its decision.
6.2.5 Notice of Decision. The Company shall notify the
claimant in writing of its decision on review. The Company shall write
the notification in a manner calculated to be understood by the
claimant. The notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of
this Agreement on which the denial is based,
(c) A statement that the claimant is entitled to
receive, upon request and free of charge,
reasonable access to, and copies of, all
documents, records and other information
relevant (as defined in applicable ERISA
regulations) to the claimant's claim for
benefits, and
(d) A statement of the claimant's right to bring
a civil action under ERISA Section 502(a).
4
Article 7
Amendments and Termination
7.1 This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Executive.
7.2 In the event this Agreement is terminated under this Article
7, the Company shall not sell, surrender or transfer ownership of the Policy
without first giving the Executive or the Executive's transferee the option to
purchase the Policy for a period of sixty (60) days from written notice of such
intention. The purchase price shall be an amount equal to the cash surrender
value of the Policy.
7.3 Notwithstanding any provision of this Agreement to the
contrary, the Company shall not pay any benefit under this Agreement if the
Company terminates the Executive's employment for:
(a) Willful breach of duty in the course of employment,
unless waived by the Company;
(b) Dishonest or illegal conduct of the Executive; or
(c) Habitual neglect by the Executive of the Executive's
employment duties, unless waived by the Company.
7.4 Suicide or Misstatement. The Company shall not pay any benefit
under this Agreement if the Executive commits suicide within three years after
the date of this Agreement.
Article 8
Beneficiaries
8.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with the Company. The Executive may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Executive and
received by the Company during the Executive's lifetime. The Executive's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Executive, or if the Executive names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's estate.
8.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, such benefit will be paid in accordance with
the policies established by the Insurer, but may include payment of benefits to
the guardian, legal representative or person having the care or custody of such
minor, incompetent person or incapable person.
5
Article 9
Miscellaneous
9.1 Binding Effect. This Agreement shall bind the Executive and
the Company and their beneficiaries, survivors, executors, administrators and
transferees, and any Policy beneficiary.
9.2 No Guarantee of Employment. This Agreement is not an
employment policy or contract. It does not give the Executive the right to
remain an employee of the Company, nor does it interfere with the Company's
right to discharge the Executive. It also does not require the Executive to
remain an employee nor interfere with the Executive's right to terminate
employment at any time.
9.3 Applicable Law. The Agreement and all rights hereunder shall
be governed by and construed according to the laws of the State of California,
except to the extent preempted by the laws of the United States of America.
9.4 Reorganization. The Company shall not merge or consolidate
into or with another company, or reorganize, or sell substantially all of its
assets to another company, firm or person unless such succeeding or continuing
company, firm or person agrees to assume and discharge the obligations of the
Company.
9.5 Notice. Any notice, consent or demand required or permitted to
be given under the provisions of this Split Dollar Agreement by one party to
another shall be in writing, shall be signed by the party giving or making the
same, and may be given either by delivering the same to such other party
personally, or by mailing the same, by United States certified mail, postage
prepaid, to such party, addressed to his or her last known address as shown on
the records of the Company. The date of such mailing shall be deemed the date of
such mailed notice, consent or demand.
9.6 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Executive as to the subject matter hereof.
No rights are granted to the Executive by virtue of this Agreement other than
those specifically set forth herein.
9.7 Administration. The Company shall have powers which are
necessary to administer this Agreement, including but not limited to:
(a) Interpreting the provisions of this Agreement;
(b) Establishing and revising the method of accounting
for this Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms
necessary or desirable to administer this Agreement.
9.8 Named Fiduciary. The Company shall be the named fiduciary and
plan administrator under the Agreement. The named fiduciary may delegate to
others certain aspects of the management and operation responsibilities of the
plan including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
6
IN WITNESS WHEREOF, the Executive and the Company consent to this
Agreement on the date above written.
EXECUTIVE: COMPANY:
FIRST NATIONAL BANK OF NORTHERN
CALIFORNIA
/s/ ANTHONY J. CLIFFORD By: /s/ THOMAS C. MCGRAW
- ---------------------------------- -------------------------------------
Anthony J. Clifford Thomas C. McGraw
Title: Chief Executive Officer
7
POLICY ENDORSEMENT
Contract Owner: FIRST NATIONAL BANK OF NORTHERN CALIFORNIA
The undersigned Owner requests that the policy(ies) shown in the attached
Schedule Page issued by JEFFERSON PILOT LIFE INSURANCE COMPANY (the "Insurer")
provide for the following beneficiary designation:
1. Upon the death of the Insured, proceeds shall be paid in one
sum to the Owner, its successors or assigns, as Beneficiary, to the extent
claimed by said Owner.
2. Any proceeds at the death of the Insured in excess of the
amount paid under the provisions of paragraph 1 of this Policy Endorsement shall
be paid in one sum in accordance with the written direction of the Owner. Such
direction will be provided to the Insurer at the time of claim. The Insurer will
be protected in relying solely on the Owner to provide the name(s) of the
party(ies) to pay any excess not paid under paragraph 1. If the Owner fails to
provide the name(s) of the party(ies) at the time of claim, then any proceeds
payable under this paragraph shall be paid in one sum to the Beneficiary.
3. It is hereby provided that (i) any payment made to the
Beneficiary or other party under paragraph 2 of this Policy Endorsement shall be
a full discharge of the Insurer to the extent thereof; (ii) such discharge shall
be binding on all parties claiming any interest under the Policy; and (iii) the
Insurer shall have no responsibility with respect to the amounts so claimed.
4. It is agreed by the undersigned that this designation shall be
subject in all respects to the contractual terms of the Policy.
The undersigned is signing in a representative capacity for the Owner and
warrants that he or she has the authority to bind the entity on whose behalf
this document is being executed.
Signed at __________________, California, this _____ day of _____________, 2____
OWNER:
FIRST NATIONAL BANK OF NORTHERN CALIFORNIA
By: ____________________________ By: ______________________________
Title: ____________________________ Title: ______________________________
1 of 2
Schedule Page
Policy(ies) Subject to Policy Endorsement
- --------------------------------------- ----------------------------------------
Policy Number Insured
- --------------------------------------- ----------------------------------------
Anthony J. Clifford
- --------------------------------------- ----------------------------------------
2 of 2
POLICY ENDORSEMENT
Contract Owner: FIRST NATIONAL BANK OF NORTHERN CALIFORNIA
The undersigned Owner requests that the policy(ies) shown in the attached
Schedule Page issued by SECURITY LIFE OF DENVER INSURANCE COMPANY (the
"Insurer") provide for the following beneficiary designation:
The Definitions and General Provisions on page 3 are a part of this Policy
Endorsement.
1. Upon the death of the Insured, proceeds shall be paid in one
sum to the Owner, its successors or assigns, as Beneficiary, to the extent
claimed by said Owner.
2. Any proceeds at the death of the Insured in excess of the
amount paid under the provisions of paragraph 1 of this Policy Endorsement shall
be paid in one sum in accordance with the written direction of the Owner. Such
direction will be provided to the Insurer at the time of claim. The Insurer will
be protected in relying solely on the Owner to provide the name(s) of the
party(ies) to pay any excess not paid under paragraph 1. If the Owner fails to
provide the name(s) of the party(ies) at the time of claim, then any proceeds
payable under this paragraph shall be paid in one sum to the Beneficiary.
3. It is hereby provided that (i) any payment made to the
Beneficiary or other party under paragraph 2 of this Policy Endorsement shall be
a full discharge of the Insurer to the extent thereof; (ii) such discharge shall
be binding on all parties claiming any interest under the Policy; and (iii) the
Insurer shall have no responsibility with respect to the amounts so claimed.
4. It is agreed by the undersigned that this designation shall be
subject in all respects to the contractual terms of the Policy.
The undersigned is signing in a representative capacity for the Owner and
warrants that he or she has the authority to bind the entity on whose behalf
this document is being executed.
Signed at __________________, California, this _____ day of _____________, 2____
OWNER:
FIRST NATIONAL BANK OF NORTHERN CALIFORNIA
By: ____________________________ By: ______________________________
Title: ____________________________ Title: ______________________________
1 of 2
Schedule Page
Policy(ies) Subject to Policy Endorsement
- --------------------------------------- ----------------------------------------
Policy Number Insured
- --------------------------------------- ----------------------------------------
Anthony J. Clifford
- --------------------------------------- ----------------------------------------
2 of 2
BENEFICIARY DESIGNATION
FIRST NATIONAL BANK OF NORTHERN CALIFORNIA
SOUTH SAN FRANCISCO, CALIFORNIA
SPLIT DOLLAR AGREEMENT
I, ________________________________, designate the following as beneficiary of
benefits under the Agreement payable following my death:
________________________________________________________________________________
Primary:
________________________________________________________________ ______%
________________________________________________________________ ______%
________________________________________________________________________________
Contingent:
________________________________________________________________ ______%
________________________________________________________________ ______%
________________________________________________________________________________
Notes:
o Please PRINT CLEARLY or TYPE the names of the beneficiaries.
o To name a trust as beneficiary, please provide the name of the trustee(s)
and the exact name and date of the trust agreement.
o To name your estate as beneficiary, please write "Estate of [your name]".
o Be aware that none of the contingent beneficiaries will receive anything
unless ALL of the primary beneficiaries predecease you.
I understand that I may change these beneficiary designations by delivering a
new written designation to the Plan Administrator, which shall be effective only
upon receipt and acknowledgment by the Plan Administrator prior to my death. I
further understand that the designations will be automatically revoked if the
beneficiary predeceases me, or, if I have named my spouse as beneficiary and our
marriage is subsequently dissolved.
Name: ______________________________________
Signature: __________________________________ Date: _____________
________________________________________________________________________________
SPOUSAL CONSENT (Required if Spouse not named beneficiary):
________________________________________________________________________________
I consent to the beneficiary designation above, and acknowledge that if I am
named beneficiary and our marriage is subsequently dissolved, the designation
will be automatically revoked.
________________________________________________________________________________
Spouse Name: _______________________________
Signature: _______________________________ Date: _____________
________________________________________________________________________________
Received by the Plan Administrator this _______ day of ___________________, 2___
By: _________________________________
Title: _________________________________