Exhibit 10.14
DIRECTOR DEFERRED FEE AGREEMENT
THIS AGREEMENT is entered into this day of , 2002 by and
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between First Northern Bank of Dixon, a California-chartered commercial bank
located in Dixon, California (the "Company"), and (the
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"Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's Board of
Directors, the Company is willing to provide to the Director a deferred fee
opportunity. The Company will pay the Director's benefits from its general
assets.
AGREEMENT
The Director and the Company agree as follows:
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have
the meanings specified:
1.1 "Base Rate" shall be 125% of the Moody's Rate. The Xxxxx'x Rate shall
mean the interest rate determined by the Committee at any time before the
commencement of each Plan Year. The Xxxxx'x Rate for the Plan Year shall be the
most current monthly "Seasoned Corporate Bond" rate published by Xxxxx'x
Investors Services, Inc., or any successor to that service, available prior to
the announcement by the Committee. The Seasoned Corporate rate is an economic
indicator, based on an arithmetic average of the yield of representative bonds,
including industrial, public utilities, Aaa, A and Baa bonds, and is calculated
as a monthly average of the composite yield.
1.2 "Change of Control" means that any of the following events occur:
(a) Merger: First Northern Community Bancorp parent corporation of
First Northern Bank of Xxxxx, merges into or consolidates with another
corporation, or merges another corporation into First Northern
Community Bancorp, and as a result less than 50% of the combined
voting power of the resulting corporation immediately after the merger
or consolidation is held by persons who were the holders of First
Northern Community Bancorp voting securities immediately before the
merger or consolidation. For purposes of this Agreement, the term
"person" means an individual, corporation, partnership, trust,
association, joint venture, pool, syndicate, sole proprietorship,
unincorporated organization or other entity,
(b) Acquisition of Significant Share Ownership: a report on Schedule
13D or another form or schedule (other than Schedule 13G) is filed or
is required to be filed under Sections 13(d) or 14(d) of the
Securities Exchange Act of 1934, if the schedule discloses that the
filing person or persons acting in concert has or have become the
beneficial owner of 20% or more of a class of First Northern Community
Bancorp voting securities, but this paragraph (b) shall not apply to
beneficial ownership of voting securities of First Northern Community
Bancorp held in a fiduciary capacity by an entity in which directly or
indirectly beneficially owns 50% or more of the outstanding voting
securities, or beneficial ownership of voting securities held by an
employee benefit plan maintained for the benefit of First Northern
Bank of Dixon's employees, or
(c) Change in Board Composition: during any period of two consecutive
years, individuals who constitute First Northern Community Bancorp
board of directors at the beginning of the two-year period cease for
any reason to constitute at least a majority thereof; provided,
however, - that for purposes of this paragraph (c) - each director who
is first elected by the board (or first nominated by the board for
election by stockholders) by a vote of at least two-thirds (2/3) of
the directors who were directors at the beginning of the period shall
be deemed to have been a director at the beginning of the two-year
period.
1.3 "Code" means the Internal Revenue Code of 1986, as amended.
1.4 "Corporation" means First Northern Community Bancorp, parent
corporation of First Northern Bank of Xxxxx.
1.5 "Deferred Account" means the Company's accounting of the Director's
accumulated Deferrals plus accrued interest.
1.6 "Deferrals" means the amount of the Director's Fees, which the Director
elects to defer according to this Agreement.
1.7 "Disability" means, if the Director is covered by a bank-sponsored
disability policy, total disability as defined in the policy without regard to
any waiting period. If the Director is not covered by such a policy, Disability
means suffering a sickness, accident or injury that - in the judgment of a
physician satisfactory to First Northern Bank of Dixon - prevents the Director
from performing substantially all of the Director's normal duties for First
Northern Bank of Dixon. As a condition to receiving any Disability benefits,
First Northern Bank of Dixon may require the Director to submit to physical or
mental evaluations and tests, as First Northern Bank of Dixon's board of
directors deems appropriate.
1.8 "Effective Date" means the date and year first written above.
1.9 "Election Form" means the Form attached as Exhibit A.
1.10 "Fees" means the total directors fees payable to the Director during a
plan year.
1.11 "Normal Retirement Age" means the Director's sixty-fifth (65th)
birthday.
1.12 "Normal Retirement Date" means the later of the Normal Retirement Age
or Termination of Service.
1.13 "Plan Year" means the calendar year ending on December 31.
1.14 "Projected Benefit" means the balance that would have accumulated in
the Director's Deferral Account at Normal Retirement Age if it is assumed that
the Director: (1) continued to defer Fees at the same rate that the Director had
been deferring Fees on the date of the Director's death: and (2) the Director
reached Normal Retirement Age.
1.15 "Termination for Cause" means the Company's board of directors or a
duly authorized committee of the board of directors determines at any time that
the Director will not be nominated by the board or committee for reelection as a
Director of First Northern Community Bancorp after the expiration of his current
term, or if the Director is removed as a director of the Company, in either case
because of the Director's:
(a) gross negligence or gross neglect of duties to the Company; or
(b) commission of a felony, or of a gross misdemeanor involving moral
turpitude in connection with the Director's service to the Company; or
(c) fraud, disloyalty, dishonesty, or willful violation of any law or
significant Company policy committed in connection with the Director's
service and in the Company's sole judgment, resulting in an adverse
effect on the Company; or
(d) removal from service or permanent prohibition from participation
in the conduct of the Company's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act [ 12
U.S.C. 1818(e)(4) or (g)(1)].
1.16 "Termination of Service" means that the Director ceases to be a member
of First Northern Bank of Dixon's board of directors for any reason whatsoever.
If the Director ceases to be a member of First Northern Bank of Dixon's board of
directors but continues to serve on the board of directors of First Northern
Community Bancorp, Termination of Service shall be deemed to have occurred
instead when the Director ceases also to be a member of the board of directors
of First Northern Community Bancorp. For purposes of this Agreement, it there is
a dispute over the service status of the Director or the date of the Director's
Termination of Service, First Northern Bank of Dixon shall have the sole and
absolute right to decide the dispute unless the first occurrence of a Change of
Control shall have occurred within 24 months before Termination of Service.
ARTICLE 2
DEFERRAL ELECTION
2.1 INITIAL ELECTION. The Director shall make an initial deferral election
under this Agreement by filing with the Company a signed Election Form within
fifteen (15) days after the date of this Agreement. The Election Form shall set
forth the amount of Fees to be deferred and the form of benefit payment. The
Election Form shall be effective to defer only Fees earned after the date the
Election Form is received by the Company.
2.2 ELECTION CHANGES
2.2.1 GENERALLY. The Director may modify the amount of Fees to be
deferred by filing a subsequent signed Election Form with the Company
and obtaining written approval by the Board of Directors of the
Company. The modified deferral shall not be effective until the
calendar year following the year in which the subsequent Election Form
is received by the Company. The Director may not change the form of
benefit payment initially elected under Section 2.1 without the
written approval of the Board of Directors of the Company.
2.2.2 HARDSHIP. If an unforeseeable financial emergency arising from
the death of a family member, divorce, sickness, injury, catastrophe
or similar event outside the control of the Director occurs, the
Director, by written instructions to the Company may reduce future
deferrals under this Agreement.
ARTICLE 3
DEFERRAL ACCOUNT
3.1 ESTABLISHING AND CREDITING. The Company shall establish a Deferral
Account on its books for the Director, and shall credit to the Deferral Account
the following amounts:
3.1.1 DEFERRALS. The Fees deferred by the Director as of the time the
Fees would have otherwise been paid to the Director.
3.1.2 INTEREST CREDITING PRIOR TO DISTRIBUTION. Prior to any
distribution of benefits, interest shall be credited and compounded
annually on the Director's Deferral Account Balance at the Base Rate.
For purposes of this crediting and compounding, all amounts deferred
during a Plan Year shall be treated as having been deferred as of the
beginning of the Plan Year. In the event of Retirement, Disability,
death or a Termination of Employment prior to the end of a Plan Year,
the basis for that year's interest crediting will be a fraction of the
full year's interest, based on the number of full months that the
Director served with the Company during the Plan Year prior to the
occurrence of such event.
3.1.3 INTEREST CREDITING FOR INSTALLMENT DISTRIBUTIONS. In the event a
benefit is paid in installments, interest shall be credited on the
undistributed portion of the Director's Deferral Account Balance
commencing on the first day of the month in which the Director
terminates service on the Board using a fixed interest rate that is
determined by averaging the Base Rates for the Plan Year in which
installment payments commence and the three (3) preceding Plan Years.
If a Director has completed fewer than four (4) Plan Years, this
average shall be determined using the Base Rates for the Plan Years
during which the Director participated in the Plan.
3.2 STATEMENT OF ACCOUNTS. The Company shall provide to the Director,
within one hundred twenty (120) days after each anniversary of this Agreement, a
statement setting forth the Deferral Account balance.
3.3 ACCOUNTING DEVICE ONLY. The Deferral Account is solely a device for
measuring amounts to be paid under this Agreement. The Deferral Account is not a
segregated fund of any kind. The Director is a general unsecured creditor of the
Company for the payment of benefits. The benefits represent the mere Company
promise to pay such benefits. The Director's rights are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by the Director's creditors.
ARTICLE 4
LIFETIME BENEFITS
4.1 NORMAL BENEFIT. Upon the Normal Retirement Date, the Company shall pay
to the Director the benefit described in this Section 4.1. in lieu of any other
benefit under this Agreement.
4.1.1 AMOUNT OF BENEFIT. The benefit under this Section 4.1 is the
Deferral Account balance at the Director's Normal Retirement Date.
4.1.2 PAYMENT OF BENEFIT. The Company shall pay the benefit to the
Director in the form elected by the Director on the Election Form. The
Company shall credit interest as described under Section 3.1.2 or
3.1.3.
4.2 EARLY TERMINATION BENEFIT. Upon Termination of Service prior to the
Normal Retirement Age for reasons other than death, Change of Control or
Disability, the Company shall pay to the director the benefit described in this
Section 4.2 in lieu of any other benefit under this Agreement.
4.2.1 AMOUNT OF BENEFIT. The benefit under this Section 4.2 is the
Deferral Account balance at the Director's Termination of Service.
4.2.2 PAYMENT OF BENEFIT. The Company shall pay the benefit to the
Director in the form elected by the Director on the Election Form
within forty-five (45) days after the Director's Termination of
Service. The Company shall credit interest as described under Section
3.1.2 or 3.1.3.
4.3 DISABILITY BENEFIT. If the Director terminates service as a director
for Disability prior to Normal Retirement Age, the Company shall pay to the
Director the benefit described in this Section 4.3. in lieu of any other benefit
under this Agreement.
4.3.1 AMOUNT OF BENEFIT. The benefit under this Section 4.3 is the
Deferral Account balance at the Director's Termination of Service.
4.3.2 PAYMENT OF BENEFIT. The Company shall pay the benefit to the
Director in the form elected by the Director on the Election Form
within forty-five (45) days after the Director's Termination of
Service. The Company shall credit interest as described under Section
3.1.2 or 3.1.3
4.4 CHANGE OF CONTROL BENEFIT. Upon a Change of Control while the Director
is in the active service of the Company, the Company shall pay to the Director
the benefit described in this Section 4.4 in lieu of any other benefit under
this Agreement.
4.4.1 AMOUNT OF BENEFIT. The benefit under this Section 4.4 is the
Deferral Account balance at the date of the Director's Termination of
Service.
4.4.2 PAYMENT OF BENEFIT. The Company shall pay the benefit to the
Director in the form elected by the Director on the Election Form
within forty-five (45) days after the Director's Termination of
Service. The Company shall credit interest as described under Section
3.1.2 or 3.1.3.
4.5 HARDSHIP DISTRIBUTION. Upon the Company's determination (following
petition by the Director) that the Director has suffered an unforeseeable
financial emergency as described in Section 2.2.2, the Company shall distribute
to the Director all or a portion of the Deferral Account balance as determined
by the Company, but in no event shall the distribution be greater than is
necessary to relieve the financial hardship.
ARTICLE 5
BENEFICIARIES
5.1 BENEFICIARY DESIGNATIONS. The Director shall designate a beneficiary by
filing a written designation with the Company. The Director may revoke or modify
the designation at any time by filing a new designation. However, designations
will only be effective if signed by the Director and accepted by the Company
during the Director's lifetime. The Director's beneficiary designation shall be
deemed automatically revoked if the beneficiary predeceases the Director, or if
the Director names a spouse as beneficiary and the marriage is subsequently
dissolved. If the Director dies without a valid beneficiary designation, all
payments shall be made to the Director's surviving spouse, if any, and if none,
to the Director's surviving children and the descendants of any deceased child
by right of representation, and if no children or descendants survive, to the
Director's estate.
5.2 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, the Company may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incompetent
person or incapable person. The Company may require proof of incompetence,
minority or guardianship as it may deem appropriate prior to distribution of the
benefit. Such distribution shall completely discharge the Company from all
liability with respect to such benefit.
ARTICLE 6
GENERAL LIMITATIONS
6.1 INSURANCE. The Company may acquire an insurance policy on the life of
the Director. The Company will be the owner and beneficiary of the policy. The
Director will have no interest in or right to the policy.
6.2 GENERAL. Notwithstanding anything to the contrary contained in this
Agreement, the Director is entitled to only one benefit which shall be
determined by the first event to occur which is dealt with by this Agreement.
Subsequent occurrence of events dealt with by this Agreement shall not entitle
the Director or his or her beneficiaries to other or further benefits under this
Agreement.
6.3 TAX CONSEQUENCES. The Company does not insure or guarantee the tax
consequences of payments provided hereunder for matters beyond its control, and
the Director certifies that his decision to reduce and defer to receive his
compensation is not due to any reliance upon financial, tax or legal advice
given by the Company, and of its employees, agents, accountants or legal
advisors.
6.4 TERMINATION FOR CAUSE. Notwithstanding any provision of this Agreement
to the contrary, the Company shall not pay any benefit under this Agreement that
is in excess of the Director's Deferrals (i.e., the interest earned on the
Deferred Account) if the Company terminates the Director's service for cause as
defined in Section 1.15.
ARTICLE 7
CLAIMS AND REVIEW PROCEDURES
7.1 CLAIMS PROCEDURE. A person or beneficiary ("claimant") who has not
received benefits under the Agreement that he or she believes should be paid
shall make a claim for such benefits as follows:
7.1.1 INITIATION - WRITTEN RESPONSE. The claimant initiates a claim by
submitting to the Company a written claim for the benefits.
7.1.2 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.
7.1.3 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:
7.1.3.1 The specific reasons for the denial,
7.1.3.2 A reference to the specific provisions of the Agreement
on which the denial is based,
7.1.3.3 A description of any additional information or material
necessary for the claimant to perfect the claim and an
explanation of why it is needed,
7.1.3.4 An explanation of the Agreement's review procedures and
the time limits applicable to such procedures, and
7.1.3.5 A statement of the claimant's right to bring a civil
action under ERISA Section 502(a) following an adverse benefit
determination on review.
7.2 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:
7.2.1 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.
7.2.2 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.
7.2.3 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.
7.2.4 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.
7.2.5 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:
7.2.5.1 The specific reasons for the denial,
7.2.5.2 A reference to the specific provisions of the Agreement
on which the denial is based,
7.2.5.3 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
7.2.5.4 A statement of the claimant's right to bring a civil
action under ERISA Section 502(a).
ARTICLE 8
AMENDMENTS AND TERMINATION
The Company may amend or terminate this Agreement at any time prior to the
Director's Termination of Service by written notice to the Director. In no event
shall this Agreement be terminated without payment to the Director of the
Deferral Account balance attributable to the Director's deferrals and interest
credited on such amounts unless the Agreement terminates as a result of
Termination for Cause in which event the Director forfeits the interest credited
on the Director's Deferrals.
ARTICLE 9
MISCELLANEOUS
9.1 BINDING EFFECT. This Agreement shall bind the Director and the Company,
and their beneficiaries, successors and assigns, survivors, executors,
administrators and transferees.
9.2 NO GUARANTEE OF SERVICE. This Agreement is not a contract for services.
It does not give the Director the right to remain a director of the Company, nor
does it interfere with the shareholders' rights to replace the Director. It also
does not require the Director to remain a director nor interfere with the
Director's right to terminate services at any time.
9.3 NON-TRANSFERABILITY. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
9.4 TAX WITHHOLDING. The Company shall withhold any taxes that are required
to be withheld from the benefits provided under this Agreement.
9.5 APPLICABLE LAW. The Agreement and all rights hereunder shall be
governed by the laws of California except to the extent preempted by the laws of
the United States of America.
9.6 UNFUNDED ARRANGEMENT. The Director 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 Director's life is a general
asset of the Company to which the Director and beneficiary have no preferred or
secured claim.
9.7 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Company and the Director as to the subject matter hereof. No rights
are granted to the Director by virtue of this Agreement other than those
specifically set forth herein.
9.8 ADMINISTRATION. The Company shall have powers which are necessary to
administer this Agreement, including but not limited to:
9.8.1 Interpreting the provisions of the Agreement;
9.8.2 Establishing and revising the method of accounting for the
Agreement;
9.8.3 Maintaining a record of benefit payments; and
9.8.4 Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
9.9 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 Service of advisors and the delegation of ministerial duties to
qualified individuals.
IN WITNESS WHEREOF, the Director and a duly authorized First Northern Bank
officer have signed this Agreement.
DIRECTOR: COMPANY:
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President
EXHIBIT A
FIRST NORTHERN BANK
DIRECTOR DEFERRED FEE AGREEMENT
Deferral Election
I elect to defer fees under my Director Deferred Fee Agreement with First
Northern Bank of Dixon, as follows:
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Amount of Deferral Frequency of Deferral Duration
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(Initial and Complete One) (Initial One) (Initial One)
I elect to defer % of fees Beginning of Year This year only
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I elect to defer $ of fees Each fee period For Years
-- ---- -- -- -----
I elect not to defer fees End of year Until Termination of Service
-- -- --
Until
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(date)
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I understand that I may change the amount, frequency and duration of my
deferrals by filing a new election form with First Northern Bank and obtaining
written approval of the Board of Directors of First Northern Bank; provided,
however, that any subsequent election will not be effective until the calendar
year following the year in which the new election is received by First Northern
Bank.
Date:
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Director's Signature
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Type or Print Name
FIRST NORTHERN BANK
DIRECTOR DEFERRED FEE AGREEMENT
Form of Benefit Payment
I elect to receive benefits under the Agreement in the following form:
[Initial One]
Lump Sum
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Equal monthly installment for Sixty (60) months
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Equal monthly installments for One Hundred Twenty (120) months
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Equal monthly installments for One Hundred Eighty (180) months
----
I understand that I may not change the form of benefit elected, even if I later
change the amount of my deferrals under the Agreement without written approval
of the Board of Directors of First Northern Bank.
Date:
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Director's Signature
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Type or Print Name
FIRST NORTHERN BANK
DIRECTOR DEFERRED FEE AGREEMENT
Beneficiary Designation
I designate the following as beneficiary of benefits under the Deferred Fee
Agreement payable following my death:
Primary:
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Contingent:
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NOTE: To name a trust as beneficiary, please provide the name of
the trustee and the exact date of the trust agreement.
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I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary, in the event of the dissolution of our marriage.
Upon acknowledgement and acceptance by the Company any previous Beneficiary
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Designations are hereby revoked.
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Date:
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Director's Signature
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Type or Print Name
The Director acknowledges that any change of Beneficiary will not be effective
until acknowledged and accepted in writing by the Company in the space provided
below:
Beneficiary Designation herein acknowledged and accepted on .
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Date
Accepted by
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Company Representative
Title:
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