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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 ▇▇▇▇▇
County, California (the "Employer"), and ▇▇▇▇▇▇▇ ▇. Mount, 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 _____________, 1982, and is currently serving as its President and
Chief Executive Officer;
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.
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.
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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 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
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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) 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
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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 Executive is not suitable to
act in the capacity for which he or she is
employed by Employer;
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(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 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
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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, beginning with the month following the month in which the
Executive becomes Disabled, payable
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(i) for the period designated in
Schedule "D" in the case of the balance in the Benefit Account and (ii) until
the 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 and without the Executive's prior
written consent, any 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 a change
in location) 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; or (iv) the Executive's
employment with the Employer is terminated within twelve (12) months after
a Change in Control occurs and the Executive notified the Employer of his
intention to terminate in a writing delivered to the Employer within six (6)
months after the occurrence of a Change in Control, 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
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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".
5.5. 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. If all or any portion of the
amounts payable to the Employee under this Agreement, either alone or
together with other payments which the Employee has the right to receive
from the Employer, constitute "excess parachute payments" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), that are subject to the excise tax imposed by Section 4999 of
the Code (or similar tax and/or assessment), the Employee shall be
responsible for the payment of such excise tax and the Employer (and its
successor) shall be responsible for any loss of deductibility related thereto.
If, at a later date, it is determined (pursuant to final regulations or
published rulings of the Internal Revenue Service, final judgment of a court of
competent jurisdiction, or otherwise) that the amount of excise taxes payable
by the Employee is greater than the amount initially so determined, then the
Employee shall pay an amount equal to the sum of such additional excise
taxes and any interest, fines and penalties resulting from such underpayment.
The determination of the amount of any such excise taxes shall be made by
the independent accounting firm employed by the Employer immediately
prior to the change in control, subject to the mutual agreement of the
Employer and Employee.
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
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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.
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.
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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 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
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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 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
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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
▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chairman of the Board
If to the Executive: ▇▇▇▇▇▇▇ ▇. Mount
______________________
______________________
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.
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
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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.
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.
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IN WITNESS WHEREOF, the Employer and the Executive have
executed this Agreement on the date first above-written in the City of
Saratoga, Santa ▇▇▇▇▇ County, California.
THE EMPLOYER THE EXECUTIVE
SARATOGA NATIONAL BANK
By:______________________________ _____________________________
V. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. Mount
Compensation Committee Chairman
130
SCHEDULE A
CALENDAR YEAR APPLICABLE PERCENTAGE
__________, 1982 to December 31, 1998. . . . 80.00%
December 31, 1999. . . . . . . . . . . . . . 90.00%
December 31, 2000. . . . . . . . . . . . . . 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):
Canada Life Assurance/US2651090
Southland Life Insurance/0600080553
Transamerica Life/50335062
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
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insurance are not purchased or are subsequently surrendered
or lapsed, then the Employer shall receive and use annual
policy illustrations that assume the above described policies
were purchased from the above named insurance
company(ies) on the Effective Date to calculate the amount
of the Index and Opportunity Cost.
d. Opportunity Cost:
The Opportunity Cost for any Plan Year shall be calculated
by multiplying (a) the sum of (i) the total amount of
premiums set forth in the insurance policies described above,
(ii) the amount of any Index Benefits (described at
subparagraph b above), and (iii) the amount of all previous
years after-tax Opportunity Costs; by (b) the average
annualized after-tax cost of funds calculated using a one-year U.S.
Treasury ▇▇▇▇ 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] [A] [B] [C] [D]
End of Cash Surrender Index Opportunity Annual Cumulative
Year Value of Life [Annual Cost Benefit Benefit
Insurance Policy Policy A0=premium B-C D+Dn-1
Income] A0+Cn-1x.05x
An-An-1 (1-42%)
0 $1, 000,000 -- -- -- --
1 $1,050,000 $50,000 $29,000 $21,000 $21,000
2 $1,102,500 $52,500 $29,841 $22,659 $43,659
3 $1,157,625 $55,125 $30,706 $24,419 $68,078
.
.
.
Assumptions: Initial Insurance = $1,000,000
Effective Tax Rate = 42%
One Year US Treasury Yield = 5%
133
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 unpaid benefit
135
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 __________________________
▇▇▇▇▇▇▇ ▇. Mount
CONSENT OF THE EXECUTIVE'S SPOUSE TO THE ABOVE BENEFICIARY DESIGNATION:
I, ▇▇▇▇▇▇▇▇ ▇. Mount, being the spouse of ▇▇▇▇▇▇▇ ▇. Mount, 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
______________________________
▇▇▇▇▇▇▇▇ ▇. Mount
136
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 the
final installment to be the entire remaining balance
in the Benefit Account.
Dated: ____________, 1998
Signed: _______________________
▇▇▇▇▇▇▇ ▇. Mount