EXHIBIT 10.14
FIRST NATIONAL BANK OF NORTHERN CALIFORNIA
000 XX XXXXXX XXXX
XXXXX XXX XXXXXXXXX, XX 00000
July 20, 2000
{Employee Name}
{Employee Title}
First National Bank of Northern California
Re: Management Continuity Agreement
Dear _____________________:
First National Bank of Northern California, a national banking
association (the "Bank"), considers the establishment and maintenance of a sound
and vital management to be essential to protecting and enhancing the best
interests of the Bank. The Bank recognizes that the possibility of a change in
control of the Bank may arise in the future and that the uncertainty and
questions which such possibility may raise among management may result in the
departure or distraction of management personnel to the detriment of the Bank.
Accordingly, the non-management members of the Bank's Board of Directors (the
"Board") have determined that it is imperative to be able to rely upon
management's continuance and that appropriate steps should be taken to reinforce
and encourage your continued attention and dedication to your assigned duties
without distraction in the face of the potentially disturbing circumstances
arising from the possibility of a change in control.
In order to induce you to remain in the employ of the Bank, this letter
agreement sets forth the benefits which the Bank agrees will be provided to you
in the event that there is a "Change in Control" (as defined in Section 1
hereof) and the "Constructive Termination" or the "Actual Termination" of your
employment (as defined in Section 3 hereof).
1. Change In Control. No benefits shall be payable hereunder
unless there shall have been a Change in Control, as set forth below. For
purposes of this Agreement, a "Change in Control" shall mean 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 Securities and Exchange Commission or any stock exchange on which
the Bank's shares are listed which requires the reporting of a change in
control; provided that, without limitation, such a Change in Control shall be
deemed to have occurred if (i) any "person" (as such term is used in the
Exchange Act) is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 25% or more of the combined voting power
of the Bank's then outstanding securities; or (ii) any "person" (as such term is
used in the Exchange Act), other than the Bank, is or becomes the beneficial
owner, directly or indirectly, of securities of the Bank representing 25% or
more of the combined voting power of the Bank's then outstanding securities; or
(iii) in any one year period, individuals who at the beginning of such period
constitute the Board of Directors of the Bank cease for any reason to constitute
at least a majority thereof, unless the election, or the nomination for election
by the Bank's shareholders, of each new director is approved by a vote of at
least three-quarters of the directors then still in office who were directors at
the beginning of the period; or (iv) a majority of the members of the Board in
office prior to the happening of any event determines in its sole discretion
that as a result of such event there has been a Change in Control.
2. Term. The term of this Agreement shall commence immediately
upon the date hereof and, unless terminated earlier pursuant to Section 5(ii)
hereof, shall continue for two (2) years. Upon the occurrence of the first
annual anniversary date of this Agreement, and on each anniversary date
thereafter, the term of this Agreement shall be deemed automatically extended
for an additional year, unless written notice of nonrenewal is furnished by you
or by the Bank prior to such anniversary date. Written notice of nonrenewal of
this Agreement will take effect at the conclusion of the term of this Agreement.
Such notice shall be furnished in accordance with Section 6 of this Agreement.
3. Definitions.
(i) Constructive Termination. For the purposes of this
Agreement, "Constructive Termination" shall mean your resignation of employment
with the Bank within a period of two(2) years after a Change in Control due to a
great diminution or adverse change in the circumstances of your employment, such
as your duties, responsibilities, compensation or location of employment.
(ii) Cause. For the purposes of this Agreement, "Cause"
shall include, without limitation, embezzlement, fraud, dishonesty, deliberate
disregard of any State of California or federal banking laws, or of the By-laws,
rules, resolutions or policies of the Board, or of the laws, rules or
regulations of the Federal Deposit Insurance Corporation, the Board of Governors
of the Federal Reserve System or the Office of the Comptroller of the Currency,
or in the event that any federal banking authority determines that you are not
suitable to act as an officer or employee of the Bank. "Cause" shall also
include your conviction for any felony or crime involving moral turpitude, your
disclosure without authority of any secret or confidential information
concerning the Bank, or any action by you which, in the Board's discretion to
determine, constitutes unfair competition with or induces any customer to breach
any contract with the Bank. In the event that you are terminated for Cause, you
shall have no rights under this Agreement.
(iii) Actual Termination. For the purposes of this
Agreement, "Actual Termination" shall mean the termination of your employment by
the Bank, other than for cause, within a period of one (1) year after a Change
in Control.
(iv) Date of Termination. "Date of Termination" shall mean
either: (A) the date of Constructive Termination; or (B) the date of Actual
Termination; or (C) if a dispute exists concerning the date of Constructive
Termination or the date of Actual Termination, the Date of Termination shall be
the date as finally determined, either by mutual written agreement of the
parties or a binding and final arbitration award or by a final judgment, order
or decree of a court of competent jurisdiction (the time for appeal therefrom
having expired and no appeal having been perfected).
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4. Benefit.
(i) Amount of Benefit. The Bank shall pay you within ten
days following the Date of Termination a severance benefit calculated as
follows:
Severance benefit in dollars = Two x Base Annual Salary
For purposes of this Agreement, "Base Annual Salary" shall be the
regular compensation paid by the Bank to you which was included in gross income
for federal income tax purposes for the twelve (12) months ending immediately
prior to the Change in Control.
The severance benefit described above shall be subject to reduction for
each month and portion thereof of your continued employment without Constructive
or Actual Termination by the Bank or any successor entity following a period of
two (2) months after a Change in Control up to the expiration of two (2) years
following a period of two (2) months after such Change in Control in the case of
Constructive Termination and one (1) year following a period of two (2) months
after such Change in Control in the case of Actual Termination.
In the event your employment without Constructive or Actual Termination
by the Bank or any successor entity continues for the entire two (2) years in
the case of Constructive Termination, or one (1) year in the case of Actual
Termination, following a period of two (2) months after such a Change in
Control, no severance benefit shall be payable pursuant to this Agreement.
(ii) Timing of Benefit. Instead of a single lump sum
payment, the Bank may elect to have the benefit (calculated in accordance with
the formula set forth above) paid to you in monthly installments over the period
not exceeding two (2) years following the Date of Termination. The first
installment in any such deferred payment period shall be made at the end of the
month in which the Date of Termination occurs and subsequent installments shall
be paid at the end of each month following the first installment until the end
of the deferred payment period which the Bank elected. Such election is to be
communicated by notice as provided in Section 6 below and shall specify the
number of months over which the benefit is to be paid. Such election may be
modified or revoked by notice given to you as provided in Section 6. No
election, modification or revocation of such election will be made after the
Date of Termination.
(iii) Other Benefits Payable. The benefit described in
subsection (i) above shall be payable in addition to, or not in lieu of, all
other accrued or vested or earned but deferred compensation, rights, options or
other benefits which may be owed to you following termination of employment,
including but not limited to accrued vacation or sick pay, amounts or benefits
payable under any employment agreement or any bonus or other compensation plans,
stock option plan, stock ownership plan, stock purchase plan, life insurance
plan, health plan, disability plan or similar plan.
(iv) Payment Obligations Absolute. Upon the Date of
Termination, the Bank's (and its successor's) obligation to pay the benefits
described herein shall be absolute and unconditional and shall not be affected
by any circumstances, including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Bank (and its successor) may have
against you or anyone else.
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(v) Legal Fees. In the event of arbitration or litigation
concerning this Agreement, the prevailing party shall be entitled to recover
from the other party all costs and expenses including reasonable attorney's
fees, incurred in such arbitration or litigation.
(vi) Mitigation. You shall not be required to mitigate the
amount of any payment provided for in this Section 4, nor shall the amount of
any payment provided for in this Section 4 be reduced or offset in any way
whatsoever by any amount received by you for any reason whatsoever from the Bank
(or its successor) or another employee or otherwise after the Date of
Termination.
(vii) Indemnification. For claims made within one (I) year
of the Date of Termination, you shall be indemnified under the Bank's Articles
of Association and Bylaws and covered by the directors' and officers' liability
insurance, the fiduciary liability insurance and the professional liability
insurance policies that are the same as, or provide coverage at least equivalent
to, those the Bank carries.
5. Successors; Termination of Agreement.
(i) The Bank will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Bank to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that the Bank would be required to perform it if no such succession had taken
place. Failure of the Bank to obtain such agreement prior to the effectiveness
of any such succession shall be a breach of this Agreement. As used in this
Agreement, "Bank" shall mean the Bank as hereinabove defined and any successor
to its business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Section 5 or which otherwise becomes bound by all
the terms and provisions of this Agreement by operation of law.
(ii) This Agreement shall terminate automatically upon the
occurrence of any of the following events: (A) your termination of employment
from the Bank, at any time, for Cause; or (B) your death, except that if you
should die while you are entitled to receive any amounts under this Agreement
but which are unpaid at your date of death, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
your devisee, legatee, or other designee or, if there be no such designee, to
your estate and this Agreement shall inure to the benefit of and be enforceable
by your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
6. Notice. For the purposes of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid. All notices to the
Bank shall be directed to the Board and all notices to you shall be directed to
you at your address of residence on file with the Bank, or to such other address
as either party may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon
receipt.
7. Excess Parachute Payments. If all or any portion of the
amounts payable to you under this Agreement, either alone or together with other
payments which you have the right to receive from the Bank, 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 Bank
(and its successor) shall increase the amounts payable hereunder to the extent
necessary to place you in the same after-tax position as you would have been in
had no such excise tax been imposed on the payments hereunder. The determination
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of the amount of any such excise taxes shall initially be made by the
independent accounting firm employed by the Bank immediately prior to the Change
in Control.
If at a later date it is determined (pursuant to final regulations or
published rulings of the IRS, final judgment of a court of competent
jurisdiction or otherwise) that the amount of excise taxes payable by you is
greater than the amount initially so determined, then the Bank (or its
successor) shall pay you an amount equal to the sum of such additional excise
taxes, any interest, fines and penalties resulting from such underpayment, plus
an amount necessary to substantially reimburse you for any income, excise or
other taxes payable by you with respect to such amounts.
8. Miscellaneous. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by you and the Chairman of the Board of Directors or
such officer as may be specifically designated by the Board. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. This Agreement shall
not affect your rights under any pension, welfare or fringe benefit arrangements
or any employment agreement of the Bank under which you are entitled to receive
any benefits. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of California. The
provisions of this Agreement, and any payment provided for hereunder, shall not
reduce any amounts otherwise payable, or in any way diminish your existing
rights, or rights which would accrue solely as a result of the passage of time,
under any employment agreement or other contract, plan or arrangement with the
Bank.
9. Validity. The invalidity or unenforceability of any provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
11. Withholding of Taxes. The Bank may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or government regulation or ruling.
12. No Employment Right. Nothing contained in this Agreement shall
confer upon you the right to continue in the employ of or in the status as an
officer of the Bank, nor limit in any way the right of the Bank to terminate
your employment or status as an officer at any time.
13. Nonassignability This Agreement is personal in nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder, except as
provided in Section 5 above. Without limiting the foregoing, your right to
receive payments hereunder shall not be assignable or transferable, whether by
pledge, creation of a security interest or otherwise, other than by a transfer
by will or by the laws of descent and distribution. In the event of any
attempted assignment or transfer contrary to this Section, the Bank shall have
no liability to pay any amounts so attempted to be assigned or transferred.
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14. Arbitration.
(i) Any disagreement, dispute, controversy or claim
arising out of or in any way related to this Agreement or the subject matter
thereof or the interpretation hereof or any arrangements relating hereto or
contemplated herein or the breach, termination or invalidity hereof shall be
settled exclusively and finally by arbitration.
(ii) The arbitration shall be conducted in accordance with
the Commercial Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") then in effect.
(iii) The arbitral tribunal shall consist of one
arbitrator. The parties to the arbitration jointly shall directly appoint such
arbitrator within 30 days of initiation of the arbitration. If the parties shall
fail to appoint such arbitrator as provided above, such arbitrator shall be
appointed by the AAA as provided in the Arbitration Rules and shall be a person
who (A) maintains his or her principal place of business or residence in
Northern California and (B) is a retired judge of the State of California.
(iv) The arbitration shall be conducted in San Francisco,
California or in any other city in the United States of America as the parties
to the dispute may designate by mutual written consent.
(v) Any decision or award of the arbitral tribunal shall
be final and binding upon the parties to the arbitration proceeding. The parties
hereto hereby waive to the extent permitted bylaw any rights to appeal or to
review of such award by any court or tribunal. The parties hereto agree that the
arbitral award may be enforced against the parties to the arbitration proceeding
or their assets wherever they may be entered in any court having jurisdiction
thereof.
If this letter correctly sets forth our agreement on the
subject matter hereof, kindly sign and return to the Bank the enclosed copy of
this letter which will then constitute our agreement on this subject.
Sincerely,
FIRST NATIONAL BANK
OF NORTHERN CALIFORNIA
By:
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Title:
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Agreed to this ________day of ________, 2000.
By:
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