EXHIBIT 10.9
BAY CITIES BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT (the "Participation Agreement") is entered
into as of this 25th day of January, 2002 by and between Bay Cities Bank (the
"Employer"), and XXXXX X. XXXXXX, an executive of the Employer (the
"Participant").
RECITALS:
WHEREAS, the Employer has adopted the Bay Cities Bank Supplemental
Executive Retirement Plan ("Plan") effective as of January 25, 2002, and the
Administrator has determined that the Participant shall be eligible to
participate in the Plan on the terms and conditions set forth in this
Participation Agreement and the Plan;
NOW, THEREFORE, in consideration of the foregoing and the agreements
and covenants set forth herein, the parties agree as follows:
1. DEFINITIONS. Except as otherwise provided, or unless the context
otherwise requires, the terms used in this Participation Agreement shall have
the same meanings as set forth in the Plan.
2. PLAN. Plan means the Bay Cities Bank Supplemental Executive
Retirement Plan, as the same may be altered or supplemented in any validly
executed Participation Agreement.
3. INCORPORATION OF PLAN. The Plan, a copy of which is attached hereto
as Exhibit A, is hereby incorporated into this Participation Agreement as if
fully set forth herein, and the parties hereby agree to be bound by all of the
terms and provisions contained in the Plan. The Participant hereby acknowledges
receipt of a copy of the Plan and, subject to the foregoing, confirms his
understanding and acceptance of all of the terms and conditions contained
therein.
4. EFFECTIVE DATE OF PARTICIPATION. The effective date of the
Participant's participation in the Plan shall be January 25, 2002 (the
"Participation Date").
5. NORMAL RETIREMENT AGE. The Participant's Normal Retirement Age for
purposes of the Plan and this Participation Agreement is age sixty-five (65).
6. PROHIBITION AGAINST FUNDING. Should any investment be acquired in
connection with the liabilities assumed under the Plan and Participation
Agreement, it is expressly understood and agreed that the Participants and
Beneficiaries shall not have any right with respect to, or claim against, such
assets nor shall any such purchase be construed to create a trust of any kind or
a fiduciary relationship between the Employer and the Participants, their
Beneficiaries, or any other person. Any such assets shall be and remain a part
of the general, unpledged, unrestricted assets of the Employer, subject to the
claims of its general creditors. It is the express intention of the parties
hereto that this arrangement shall be unfunded for tax purposes and for purposes
of Title I of ERISA. The Participant shall be required to look to the provisions
of the Plan and to the Employer itself for enforcement of any and all benefits
due under this Participation Agreement, and, to the extent the Participant
acquires a right to receive payment under the Plan and this Participation
Agreement, such right shall be no greater than the right of any unsecured
general creditor of the Employer. The Employer shall be designated the owner and
beneficiary of any investment acquired in connection with its obligation under
the Plan and this Participation Agreement.
7. PROVISIONS RELATED TO SERP BENEFIT.
a. BENEFIT. The SERP Benefit for the Participant shall
be an annual payment of SIXTY THOUSAND DOLLARS
($60,000), for a period of fifteen (15) years
beginning in the year of the last to occur of
Participant's termination of employment or attaining
Normal Retirement Age; provided, however, that the
amount of such annual payment shall be subject to the
vesting provisions set forth in subparagraph b.
below.
b. VESTING. Participant's right to payment of the SERP
Benefit shall begin to vest after completion of ten
(10) continuous Years of Service from the date
hereof. For each Year of Service thereafter
completed, Participant shall vest in and be entitled
to a percentage of the SERP Benefit described in
subparagraph a. above along the following schedule:
YEARS OF SERVICE PERCENTAGE VESTED
---------------- -----------------
1 Twenty Percent (20%)
2 Twenty Percent (20%) plus
amounts previously vested
for a total of Forty
Percent (40%)
3 Twenty Percent (20%) plus
amounts previously vested
for a total of Sixty
Percent (60%)
4 Twenty Percent (20%) plus
amounts previously vested
for a total of Eighty
Percent (80%)
5 Twenty Percent (20%) plus
amounts previously vested
for a total of One Hundred
Percent (100%)
c. If Participant shall terminate employment before
becoming fully vested in accordance with the
foregoing schedule, then the Employer shall begin
paying Participant the percentage of the SERP Benefit
in which the Participant was vested at the time of
termination of employment when the Participant
attains or would have attained Normal Retirement Age.
In the alternative, the Employer may, at its sole
option, pay to the Participant the present commuted
value of such SERP Benefit payment, calculated as of
the date of termination of employment in accordance
with generally accepted actuarial principles. In the
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event Participant terminates employment prior to
becoming vested in at least some percentage of the
SERP Benefit in accordance with the foregoing
schedule, the Participant shall forfeit any and all
rights to payment of the SERP Benefit.
d. CHANGE OF CONTROL. Notwithstanding the forgoing
provisions, upon the occurrence of a Change of
Control, as defined in the Plan, Participant shall
immediately become One Hundred Percent (100%) vested
in the SERP Benefit as described in subparagraph a.
above.
e. PARTICIPANT DISABILITY. Notwithstanding the foregoing
provisions, if Participant terminates employment due
to Disability, Participant shall immediately become
One Hundred Percent (100%) vested in the SERP Benefit
as described in paragraph a. above.
f. FORM OF SERP BENEFIT PAYMENT. The annual SERP Benefit
will be paid equally in monthly installments during
the payment period. Each monthly installment shall
equal one-twelfth of the total annual SERP Benefit.
Upon the Participant's death all remaining payments
shall be paid to the Participant's Beneficiary(ies).
Such distribution of the aforementioned SERP Benefit
shall commence on the first day of the calendar month
next following the Participant's Normal Retirement or
death.
g. BENEFICIARY. Each Participant may, from time to time,
designate one or more persons (who may be any one or
more members of such person's family or other
persons, administrators, trusts, foundations or other
entities) as his Beneficiary under the Participation
Agreement. Such designation shall be made on a form
prescribed by the Administrator (an example of such
form is attached hereto as Exhibit B). Each
Participant may at any time, and from time to time,
change any previous Beneficiary designation, without
notice to or consent of any previously designated
Beneficiary, by amending his or her previous
designation on a form prescribed by the
Administrator. If no person shall be designated by
the Participant as a Beneficiary, or if the
designated Beneficiary shall not survive the
Participant, payment of his interest shall be made to
the Participant's estate. If more than one person is
the beneficiary of a deceased Participant, each such
person shall receive a pro rata share of any death
benefit payable unless otherwise designated on the
applicable form.
8. GENERAL PROVISIONS
a. NO ASSIGNMENT.
No benefit under the Participation Agreement shall be
subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, or
charge, and any such action shall be void for all
purposes of the Participation Agreement. No benefit
shall in any manner be subject to the debts,
contracts, liabilities, engagements, or torts of any
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person, nor shall it be subject to attachments or
other legal process for or against any person, except
to such extent as may be required by law.
b. HEADINGS.
The headings contained in the Participation Agreement
are inserted only as a matter of convenience and for
reference and in no way define, limit, enlarge, or
describe the scope or intent of, or in any way affect
this Participation Agreement or the construction of
any provision thereof.
c. TERMS.
Capitalized terms shall have meanings as defined
herein. Singular nouns shall be read as plural,
masculine pronouns shall be read as feminine, and
vice versa, as appropriate.
d. SUCCESSORS.
This Participation Agreement shall be binding upon
each of the parties and shall also be binding upon
their respective successors and the Employer's
assigns.
e. AMENDMENTS.
This Participant Agreement may not be modified or
amended except by a duly executed instrument in
writing signed by the Employer and the Participant.
IN WITNESS WHEREOF, each of the parties has caused this Participation
Agreement to be executed as of the day first above written.
PARTICIPANT: BAY CITIES BANK:
By:
-------------------------------- --------------------------------
XXXXX X. XXXXXX
Title:
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ATTESTED: ATTESTED:
By: By:
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Title: Title:
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EXHIBIT A
BAY CITIES BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
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EXHIBIT B
BENEFICIARY DESIGNATION
In the event of the Participant's death, any benefits to which the
Participant may be entitled shall be paid to the Beneficiary designated below.
This Beneficiary Designation shall be subject to the terms and conditions set
forth in the Plan and shall supersede all prior Beneficiary Designations made by
the Participant. This Beneficiary Designation shall be attached to and become
part of that certain Participation Agreement, dated as of January 25, 2002,
between the Employer and the Participant.
Primary Beneficiary:
Secondary Beneficiary:
IN WITNESS WHEREOF, the Participant has executed this Beneficiary
Designation as of the date indicated.
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Signature
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Printed Name of Participant
Dated:
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