99.25
DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this 9th day of October, 1996, by and between
SAN XXXXXXX BANK (the "Company"), and XXXXX X. XXXXXXX (the "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 benefits from its general assets.
AGREEMENT
The Director and the Company agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. Whenever used in this Agreement, the following words
and phrases shall have the meanings specified:
1.1.1 "CHANGE OF CONTROL" means the transfer of fifty-one (51%) or
more of the Company's outstanding voting common stock followed within twelve
(12) months of termination of the Director's status as a member of the Company's
Board of Directors.
1.1.2 "CODE" means the Internal Revenue Code of 1986, as amended.
References to a Code section shall be deemed to be to that section as it now
exists and to any successor provision.
1.1.3 "DISABILITY" means the Director's inability to perform
substantially all normal duties of a director, as determined by the Company's
Board of Directors in its sole discretion. As a condition to any benefits, the
Company may require the Director to submit to such physical or mental
evaluations and tests as the Board of Directors deems appropriate.
1.1.4 "ELECTION FORM" means the Form attached as Exhibit "1."
1.1.5 "FEES" means the total directors fees payable to the
Director.
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1.1.6 "NORMAL TERMINATION DATE" means the Director attaining age
seventy (70) and completing ten (10) Years of Service.
1.1.7 "TERMINATION OF SERVICE" means the Director's ceasing to be
a member of the Company's Board of Directors for any reason whatsoever.
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 thirty (30) days after the date of this Agreement. The Election Form
shall set forth the amount of Fees to be deferred. 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. 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.
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 or cease 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.
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3.1.2 INTEREST. On each anniversary of the date of this Agreement
and immediately prior to the payment of any benefits, interest on the account
balance since the preceding credit under this Section 3.1.2, if any, at an
annual rate, compounded annually, equal to the rate being paid on such
anniversary date by Company on ninety (90) day jumbo certificates of deposit,
such rate to be used for the following twelve (12) month period.
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
trust 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 TERMINATION BENEFIT. Upon the Director's Termination of
Service, the Company shall pay to the Director the benefit described in this
Section 4.1.
4.1.1 AMOUNT OF BENEFIT. The benefit under this Section 4.1 is the
Deferral Account balance at the Director's Termination of service.
4.1.2 PAYMENT OF BENEFIT. The Company shall pay the benefit to the
Director in one hundred twenty (120) monthly installments commencing on the
first day of the month following the Director's Termination of Service. The
Company shall continue to credit interest under Section 3.1.2 at the annual rate
determined as provided therein on the remaining account balance during any
applicable installment period. Such payments shall be calculated to provide
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equal monthly payments based on the interest rate in effect when the initial
payment is made and readjusted annually to take into account any fluctuations in
the rate of interest as determined under Section 3.1.2.
4.2 DISABILITY BENEFIT. If the Director terminates service as a
director for Disability prior to the Normal Termination Date the Company shall
pay to the Director the benefit described in this Section 4.2.
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 one hundred twenty (120) monthly installments commencing on the
first day of the month following the Director's Termination of Service. The
Company shall continue to credit interest under Section 3.1.2 determined in the
same manner as provided therein on the remaining account balance during any
applicable installment period. Such payments shall be calculated to provide
equal monthly payments based on the interest rate in effect when the initial
payment is made and readjusted annually to take into account any fluctuations in
the rate of interest as determined under Section 3.1.2.
4.3 CHANGE OF CONTROL BENEFIT. Upon a Change of Control, the Company
shall pay to the Director the benefit described in this Section 4.3 in lieu of
any further benefit under this Agreement.
4.3.1 AMOUNT OF BENEFIT. The benefit under this Section 4.3 is the
Deferral Account balance at the date of the Change of Control (as reduced by any
distributions made prior to the change of control).
4.3.2 PAYMENT OF BENEFIT. The Company shall pay the benefit to the
Director in a lump sum within thirty (30) days after the date of the Change of
Control.
4.4 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
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necessary to relieve the financial hardship.
ARTICLE 5
DEATH BENEFITS
5.1 DEATH DURING ACTIVE SERVICE. If the Director dies while in the
active service of the Company, the Company shall pay to the Director's
beneficiary the benefit described in this Section 5.1.
5.1.1 AMOUNT OF BENEFIT. The benefit under Section 5.1 is the
Deferral Account balance at the date of the Director's death.
5.1.2 PAYMENT OF BENEFIT. The Company shall pay the benefit to the
beneficiary within thirty (30) days following the Director's death.
5.2 DEATH DURING BENEFIT PERIOD. If the Director dies after benefit
payments have commenced under this Agreement but before receiving all such
payments, the Company shall pay the remaining benefits to the Director's
beneficiary at the same time and in the same amounts they would have been paid
to the Director had the Director survived.
ARTICLE 6
BENEFICIARIES
6.1 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.
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6.2 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
incompetency, 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 7
CLAIMS AND REVIEW PROCEDURES
7.1 CLAIMS PROCEDURE. The Company shall notify the Director's
beneficiary in writing, within ninety (90) days of his or her written
application for benefits, of his or her eligibility or noneligibility for
benefits under the Agreement. If the Company determines that the beneficiary is
not eligible for benefits or full benefits, the notice shall set forth (1) the
specific reason for such denial, (2) a specific reference to the provisions of
the Agreement on which the denial is based, (3) a description of any additional
information or material necessary for the claimant to perfect his or her claim,
and a description of why it is needed, and (4) an explanation of the Agreement's
claims review procedure and other appropriate information as to the steps to be
taken if the beneficiary wishes to have the claim reviewed. If the Company
determines that there are special circumstances requiring additional time to
make a decision, the Company shall notify the beneficiary of the special
circumstances and the date by which a decision is expected to be made, and may
extend the time for up to an additional ninety-day period.
7.2 REVIEW PROCEDURE. If the beneficiary is determined by the Company
not to be eligible for benefits, or if the beneficiary believes that he or she
is entitled to greater or different benefits, the beneficiary shall have the
opportunity to have such claim reviewed by the Company by filing a petition for
review with the Company within sixty (60) days after receipt of the notice
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issued by the Company. Said petition shall state the specific reason which the
beneficiary believes entitle him or her to benefits or to greater or different
benefits. Within sixty (60) days after receipt by the Company of the petition,
the Company shall afford the beneficiary (and counsel, if any) an opportunity to
present his or her position to the Company orally or in writing, and the
beneficiary (or counsel) shall have the right to review the pertinent documents.
The Company shall notify the beneficiary of its decision in writing within the
sixty-day period, stating specifically the basis of its decision, written in a
manner calculated to be understood by the beneficiary and the specific
provisions of the Agreement on which the decision is based. If, because of the
need for a hearing, the sixty-day period is not sufficient, the decision may be
deferred for up to another sixty-day period at the election of the Company, but
notice of this deferral shall be given to the beneficiary.
ARTICLE 8
AMENDMENTS AND TERMINATION
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Director.
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.
ARTICLE 9
MISCELLANEOUS
9.1 BINDING EFFECT. This Agreement shall bind the Director and the
Company, and their beneficiaries, survivors, executors, administrators and
transferees.
9.2 NO GUARANTY 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
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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. This 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.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer
have signed this Agreement.
DIRECTOR: COMPANY:
SAN XXXXXXX BANK,
/s/ Xxxxx X. Xxxxxxx
---------------------------- By /s/ Xxxxx Xxxxxx
XXXXX X. XXXXXXX ----------------------------
XXXXX XXXXXX
Chairman of the Board
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EXHIBIT I
TO
DEFERRED COMPENSATION AGREEMENT
DEFERRAL ELECTION
I elect to defer compensation under my Deferred Compensation Agreement with the
Company, as follows:
================================================================================
Amount of Deferral Frequency of Deferral Duration
================================================================================
[Initial and Complete One] [Initial One] [Initial One]
X I elect to defer 100% of __ Beginning of Year __ This Year Only
my Salary X Each pay period __ For __ [insert
__ Monthly Number] Years
__ I elect to defer $__ __ Quarterly __ Until the Early
of my Salary __ Semi-Annually Retirement Date
__ End of Year X Until the Normal
__ I elect not to defer Retirement Date
--------------------------------------------------------------------------------
[Initial and Complete One] [Initial One] [Initial One]
X I elect to defer 100% of __ First Bonus Payment __ This Year Only
my Bonus __ For __ [insert
X Each Bonus Payment Number] Years
__ I elect to defer $__ __ Until the Early
of my Bonus __ Last Bonus Payment Retirement Date
X Until the Normal
__ I elect not to defer Retirement Date
================================================================================
I understand that I may change the amount, frequency and duration of my
deferrals by filing a new election form with the Company; 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 the Company.
FORM OF BENEFIT
I elect to receive benefits under the Agreement in the following form:
[Initial One]
X Lump sum
---
___ Equal monthly installments for _ [insert Number of Months] 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.
BENEFICIARY DESIGNATION
I designate the following as beneficiary of benefits under the Deferred
Compensation Agreement payable following my death:
Primary: /s/ Xxxxxx Xxxxxxx
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Contingent: Estate of Xxxxx X. Xxxxxxx
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NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE AND
THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
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 by spouse as beneficiary in the event of the dissolution of our marriage.
Signature /s/ Xxxxx X. Xxxxxxx
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Date 10/29/96
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Accepted by the Company this 12 day of November, 1996.
By /s/ Xxxxx Xxxxxx
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Title Chairman
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