Exhibit 99.38
409A Amendment to the
FIRST NATIONAL BANK OF NORTHERN CALIFORNIA
Salary Continuation Agreement for
XXXXXXX XXXXXXXX
FIRST NATIONAL BANK OF NORTHERN CALIFORNIA ("Company") and XXXXXXX
XXXXXXXX ("Executive") originally entered into the FIRST NATIONAL BANK OF
NORTHERN CALIFORNIA Salary Continuation Agreement ("Agreement") on September 14,
2004. Pursuant to Section 6.1 of the Agreement, the Company and the Executive
hereby adopt this 409A Amendment, effective January 1, 2005.
RECITALS
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This 409A Amendment is intended to bring the Agreement into full
compliance with the requirements of Internal Revenue Code Section 409A.
Therefore, the following changes shall be made:
4. Section 2.6 shall be added to the Agreement and shall read as follows:
Notwithstanding anything to the contrary in this Agreement, to the
extent that any benefit under this Agreement is intended by the parties
hereto to provide for a benefit distribution upon "Termination of
Employment," "Termination of Service," or other similar severance from
employment event (as contemplated in Section 409A(a)(2)(A)(i)), such
distribution shall not be deemed a permissible distribution and will
not be made to the Executive unless and until such event complies in
all respects with the applicable rules and regulations set forth under
Section 409A of the Code regarding a "Separation from Service"
distribution.
5. A new Section 2.7 shall be added to the Agreement, and shall read as
follows:
Restriction on Timing of Distribution. Notwithstanding any provision of
this Agreement to the contrary, distributions to Executive may not
commence earlier than six (6) months after the date of a Separation
from Service if, pursuant to Section 409A of the Code and regulations
and guidance promulgated there under, Executive is considered a
"specified employee" under Section 416(i) of the Code. In the event a
distribution is delayed pursuant to this Section 2.6, the originally
scheduled payment shall be delayed for 6 months, and shall commence
instead on the first day of the seventh month following the delay. If
payments are scheduled to be made in installments, the first six months
of installment payments shall be delayed, aggregated, and paid instead
on the first day of the seventh month, after which all installment
payments shall be made on their regular schedule. If payment is
scheduled to be made in a lump sum, the lump sum payment shall be
delayed for six months and instead be made on the first day of the
seventh month.
6. A new Section 6.3 shall be added to the Agreement and shall read as
follows:
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6.3 Should the Company or the Executive amend or terminate this
Agreement pursuant to Sections 6.1 or 6.2 above, any such amendment or
termination shall in all respects comply with Section 409A of the Code,
including but not limited to, the restrictions on distributions following plan
termination and the rules governing subsequent changes to distribution
elections.
Therefore, the foregoing changes are agreed to.
/s/ XXXXX X. XXXXXX /s/ XXXXXXX XXXXXXXX
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XXXXX X. XXXXXX For the Company XXXXXXX XXXXXXXX
Date July 21, 2006 Date July 21,2006
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