DIRECTOR SUPPLEMENTAL COMPENSATION AGREEMENT
This Agreement is made and entered into effective as of June 1, 2000, by and
between San ▇▇▇▇ National Bank, a national banking association chartered under
the federal laws of the United States of America with its principal offices
located in the City of San Jose, California ("the Bank"), a wholly owned
subsidiary of SJNB Financial Corporation (the "Holding Company") and
____________________, an individual residing in the State of California ("the
Director").
R E C I T A L S
WHEREAS, the Director is a member of the Board of Directors of the Bank and/or
the Holding Company and has served in such capacity since ________________;
WHEREAS, the Bank desires to establish a compensation benefit for directors who
are not also officers or employees of the Bank in order to attract and retain
individuals with extensive and valuable experience as directors and to establish
a director emeritus succession plan; and
WHEREAS, the Director and the Bank wish to specify in writing the terms and
conditions upon which this additional compensatory incentive will be provided to
the Director.
NOW, THEREFORE, in consideration of the services to be performed by the Director
in the future, as well as the mutual promises and covenants contained herein,
the Director and the Bank agree as follows:
A G R E E M E N T
1. Terms and Definitions.
1.1 Applicable Percentage. The term "Applicable Percentage" shall mean that
percentage listed on Schedule "A" attached hereto which is adjacent to the
Plan Year in which the Director Retires or otherwise ceases to serve as a
Director. Notwithstanding the foregoing or the percentages set forth on
Schedule "A", but subject to all other terms and conditions set forth
herein, the "Applicable Percentage" shall automatically become one hundred
percent (100%) upon the occurrence of a "Change in Control" as defined in
subparagraph 1.2 below or the Director's Disability (as defined in
subparagraph 1.4 below).
1.2 Change in Control. The term "Change in Control" shall mean the occurrence
of any of the following events with respect to the Bank (with the term
"Bank" being defined for purposes of determining whether a "Change in
Control" has occurred to include the Holding Company: (i) 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 regulatory agencies or
governmental authorities having jurisdiction over the Bank or any stock
exchange on which the Bank's shares are listed which requires the reporting
of a change in control; (ii) any merger, consolidation or reorganization of
the Bank in which the Bank does not survive; (iii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) of any assets of the Bank having
an aggregate fair market value of fifty percent (50%) of the total value of
the assets of the Bank, reflected in the most recent balance sheet of the
Bank; (iv) a transaction whereby any "person" (as such term is used in the
Exchange Act) or any individual, corporation, partnership, trust or any
other entity becomes the beneficial owner, directly or indirectly, of
securities of the Bank representing twenty-five percent (25%) or more of
the combined voting power of the Bank's then outstanding securities; or (v)
a situation where, 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 (3/4) of the
directors then still in office who were directors at the beginning of the
period. Notwithstanding the foregoing or anything else contained herein to
the contrary, there shall not be a "Change of Control" for the purposes of
this Agreement if the event which would otherwise come within the meaning
of the term "Change of Control" involves an Employee Stock Ownership Plan
sponsored by the Bank or its Holding Company which is the party that
acquires "control" or is the principal participant in the transaction
constituting a "Change in Control," as described above.
1.3 The Code. The "Code" shall mean the Internal Revenue Code of 1986, as
amended (the "Code").
1.4 Disability/Disabled. The term "Disability" or "Disabled" shall have the
same meaning given such terms in any policy of disability insurance
maintained by the Bank for the benefit of directors including the Director.
In the absence of such a policy which extends coverage to the Director in
the event of disability, the terms shall mean bodily injury or disease
(mental or physical) which wholly and continuously prevents the performance
by the Director of his duties for at least one year.
1.5 Effective Date. The term "Effective Date" shall mean the date first written
above.
1.6 Director Retirement Benefit. The term "Director Retirement Benefit" shall
mean (i) $22,500 per annum or (ii) if the Director been receiving Director
Emeritus Payments hereunder, $23,877 per annum, which shall be paid in
equal monthly installments for the life of the Director and shall be
increased each year on the anniversary date of commencement of such
payments by 2%; provided that all payments shall be subject to reduction or
adjustment as may be required under any other provision of this Agreement;
1.7 Director Emeritus Benefit. The term "Director Emeritus Benefit" shall mean
$22,500 per year if the Director retires at age seventy (70) or $22,500
reduced by 5% per year for the difference between the age of the Director
at the date the Director Retires and age seventy (70), shall be paid in
equal monthly installments and shall be increased on each anniversary date
of the commencement of payments by 2%;
1.8 Reduced Retirement Benefit. The term "Reduced Retirement Benefit" shall
mean the amount of the Director Retirement Benefit as set forth in
Paragraph 1.6 reduced by 5% per year for the difference between the age
specified for the then applicable Normal Retirement Date as provided in
Paragraph 1.9 next following, and the age of the Director at the date that
payment of the Director Emeritus Benefit is to commence, or if none is to
be paid, the date that payment of the Reduced Retirement Benefit is to
commence under the terms of this Agreement;
1.9 Normal Retirement Date. The term "Normal Retirement Date" or "Normal
Retirement Age" shall mean age seventy (70); provided that on or after a
Change in Control as defined in Paragraph 1.2, the Normal Retirement Date
or Normal Retirement Age shall mean age sixty-two (62);
1.10 Early Retirement Date. The term "Early Retirement Date" shall mean the
later of the date when the Director attains age sixty (60), or the date the
Director qualifies for an Applicable Percentage equal to one hundred
percent (100%).
1.11 Plan Year. The term "Plan Year" shall mean the Bank's fiscal year.
1.12 Retirement. The terms "Retirement," "Retires" or "Retire" shall refer to
the date which the Director acknowledges in writing to the Bank and/or the
Holding Company to be the last day of service as a member of the Boards of
Directors of the Bank and the Holding Company.
1.13 Removal for Cause. The term "removal for cause" shall mean the termination
of the Director's service as a member of the Boards of Directors by reason
of any of the following determined in good faith by disinterested members
of both Boards of Bank and the Holding Company:
(a) The willful, intentional and material breach or habitual and continued
neglect by Director of his responsibilities and duties;
(b) The continuous mental or physical incapacity of the Director, on
account of Disability;
(c) The Director's willful and intentional violation of any federal
banking or securities laws, or of the Bylaws, rules, policies or
resolutions of the Bank or the Holding Company, or the rules or
regulations of the Board of Governors of the Federal Reserve System,
Federal Deposit Insurance Corporation, Office of the Comptroller of
the Currency, or any other regulatory agency or governmental authority
having jurisdiction over the Bank or the Holding Company
(collectively, "Bank Regulator") which has a material adverse effect
upon the Bank or the Holding Company;
(d) The determination by a state or federal banking agency or other
governmental authority having jurisdiction over the Bank or the
Holding Company that the Director is not suitable to act in the
capacity for which he is employed by the Bank, or;
(e) The Director is convicted of any felony or a crime involving moral
turpitude or willfully and intentionally commits a fraudulent or
dishonest act that has a material adverse impact on the reputation or
operations of the Bank or Holding Company.
2. Scope, Purpose and Effect.
2.1 Contract of Employment. Although this Agreement is intended to provide the
Director with an additional incentive to continue to serve as a member of
the Boards of Directors of the Bank and Holding Company, this Agreement
shall not be deemed to constitute a contract of employment between the
Director and the Bank or the Holding Company nor shall any provision of
this Agreement restrict the right of the Bank or the Holding Company to
remove or cause the removal of the Director including, without limitation,
by (i) refusal to nominate the Director for election for any successive
term of office as a member of the Board of Directors of the Bank or the
Holding Company, or (ii) complying with an order or other directive from a
court of competent jurisdiction or any regulatory authority having
jurisdiction over the Bank or Holding Company which requires either of them
to take action to remove the Director.
2.2 Fringe Benefit. The benefits provided by this Agreement are granted by the
Bank as a fringe benefit to the Director and are not a part of any salary
reduction plan or any arrangement deferring a bonus or a salary increase.
The Director has no option to take any current payments or bonus in lieu of
the benefits provided by this Agreement.
2.3 Prohibited Payments. Notwithstanding anything in this Agreement to the
contrary (and in particular in section 1.8 or section 3 hereof), if any
payment made under this Agreement is a "golden parachute payment" as
defined in Section 28(k) of the Federal Deposit Insurance Act (12 U.S.C.
section 1828(k) and Part 359 of the Rules and Regulations of the Federal
Deposit Insurance Corporation (collectively, the "FDIC Rules") or is
otherwise prohibited, restricted or subject to the prior approval of a Bank
Regulator (as defined in section 1.14 (d) herein), no payment shall be made
hereunder without complying with said FDIC Rules.
3. Director Benefits Payments.
3.1 Payments for Service as Director Emeritus. Upon the attainment of the
earlier of the Director's Early Retirement Date, Normal Retirement Date,
the date of 100% vesting or date of removal as director without cause, but
prior to a Change in Control as defined in Paragraph 1.2, the Director
shall be entitled to Retire and serve the Bank and/or the Holding Company
as a Director Emeritus in accordance with the procedures and policies
established by the Boards of Directors of the Bank and/or the Holding
Company as set forth in Schedule B attached hereto. If the Director elects
to serve as a Director Emeritus of either the Bank or the Holding Company,
the Director shall be paid the Applicable Percentage of the Director
Emeritus Payments specified in Paragraph 1.7 until the earlier of the third
anniversary of the commencement thereof or the death of the Director. If
the Director declines or is unable to serve as Director Emeritus, the
Director shall not receive any Director Emeritus Benefit but shall
nevertheless be entitled to the Director Benefits described in subparagraph
3.2 following.
3.2 Payments After Expiration of the Director Emeritus Period. After the
expiration of the three (3) year period described above in Paragraph 3.1,
the Bank shall pay to the Director the Applicable Percentage of the
Director Retirement Benefit specified in Paragraph 1.6. Said Payments shall
commence on the third anniversary of the Director's Retirement.
4. Payments in the Event of Disability Prior to Retirement. In the event the
Director becomes Disabled while serving as a member of the Board of
Directors of either the Bank or the Holding Company at any time after the
Effective Date of this Agreement, but prior to Retirement, the Director
shall be entitled to one hundred percent (100%) of the Director Retirement
Benefit specified in Paragraph 1.6. if the Director elects payments to
commence at age seventy (70) or one-hundred percent (100%) of the Reduced
Retirement Benefit determined under Paragraph 1.8 if the Director elects
payments to commence prior to age seventy (70). The Director cannot elect
payments to commence earlier than age sixty (60). A disabled Director shall
not be entitled to receipt of Director Emeritus Payments.
5. Payments in the Event Director Is Terminated Prior to Retirement. As
indicated in subparagraph 2.1 above, the Bank and the Holding Company each
reserves the right to remove or cause the removal of the Director under
certain circumstances, at any time prior to the Director's Retirement. In
the event that the service of the Director shall be terminated, other than
by reason of Death, Disability or Retirement, prior to the Director's
Normal Retirement Date, then this Agreement shall terminate upon the date
of such termination; provided, however, that the Director shall be entitled
to the following benefits as my be applicable depending upon the
circumstances surrounding the Director's termination:
5.1 Termination Without Cause. If the Director's service as a member of the
Boards of Directors of both the Bank and the Holding Company is terminated
for reasons other than as specified in paragraph 5.3 below, and such
terminations are not subject to the provisions of subparagraph 5.4 below,
the Director shall be entitled to be paid the Applicable Percentage of both
the Director Emeritus Benefit as determined under Paragraph 1.7 and the
Director Retirement Benefit or the Reduced Retirement Benefit. Payments of
the Director Emeritus Benefit shall commence on the date the Director
elects but not before the Director attains age sixty (60), and shall be
continuous until the earlier of the third anniversary of the commencement
or the Director's death. Thereafter, payment of the applicable Percentage
of the Director Retirement Benefit or Reduced Retirement Benefit, whichever
is applicable, shall commence and continue until the Director's death.
5.2 Voluntary Termination by the Director. If the Director's service on both
Boards of Directors is terminated by voluntary resignation before age
seventy (70) on a date when the Applicable Percentage is less than one
hundred percent (100%), and such resignation is not subject to the
provisions of subparagraph 5.4 below, the Director shall forfeit any and
all rights and benefits he may have under the terms of this Agreement and
shall have no right to be paid any of the amounts which would otherwise be
due or paid to the Director by the Bank pursuant to the terms of this
Agreement. If the Applicable Percentage is one hundred percent (100%) on
the date of such voluntary resignations and the Director has not attained
age sixty (60), the Director shall be entitled to the Director Emeritus
Benefit and the Reduced Retirement Benefit. Payment of the Directors
Emeritus Benefit shall commence when and if the Director attains age sixty
(60) and shall continue until the earlier of the third anniversary of its
commencement or the Director's death; thereafter the payment of the Reduced
Retirement Benefit shall commence and shall continue until the Director's
death. A voluntary resignation after 60 when the Director's Applicable
Percentage is one hundred percent (100%) shall be deemed to be an election
to Retire.
5.3 Termination by Removal for Cause. The Director agrees that if his service
as a member of either the Boards of Directors is terminated by "removal for
cause," as defined in subparagraph 1.14 of this Agreement, he shall forfeit
any and all rights and benefits he may have under the terms of this
Agreement and shall have no right to be paid any of the amounts which would
otherwise be due or paid to the Director by the Bank pursuant to the terms
of this Agreement.
5.4 Termination as Part of or After a Change in Control. Notwithstanding any
other provision of this Agreement, in the event that the Director's service
as a member of the Board of Directors of the Bank and the Holding Company
is terminated as a part of or after a "Change in Control" (as defined in
subparagraph 1.2 above) voluntarily, involuntarily or for any reason except
as provided in subparagraph 5.3 above, the Director shall be entitled to be
paid one hundred percent (100%) of the Director Retirement Benefit or
Reduced Retirement Benefit as follows: The Director shall be entitled to
elect the date on or after attainment of age sixty (60) that the payments
shall commence. If the Director elects that payments shall commence before
age sixty-two (62) he or she shall be paid the Reduced Retirement Benefit
described in Paragraph 1.8 and if the Director elects the payments to
commence at age sixty-two (62) or thereafter, the Director shall be paid
the Director Retirement Benefit described under Paragraph 1.6. The Director
shall not be entitled to receipt of Director Emeritus Payments and the
payment of the Director Retirement Benefit or Reduced Retirement Benefit
shall commence on the date elected as described above.
6. Right To Determine Funding Methods. The Bank reserves the right to
determine, in its sole and absolute discretion, whether, to what extent and
by what method, if any, to provide for the payment of the amounts which may
be payable to the Director, under the terms of this Agreement. In the event
that the Bank elects to fund this Agreement, in whole or in part, through
the use of life insurance or annuities, or both, the Bank shall determine
the ownership and beneficial interests of any such policy of life insurance
or annuity. The Bank further reserves the right, in its sole and absolute
discretion, to terminate any such policy, and any other devise used to fund
its obligations under this Agreement, at any time, in whole or in part.
Consistent with Paragraph 8 below, the Director shall have no right, title
or interest in or to any funding source or amount utilized by the Bank
pursuant to this Agreement, and any such funding source or amount shall not
constitute security for the performance of the Bank's obligations pursuant
to this Agreement. In connection with the foregoing, the Director agrees to
execute such documents and undergo such medical examinations or tests which
the Bank may request and which may be reasonably necessary to facilitate
any funding for this Agreement including, without limitation, the Bank's
acquisition of any policy of insurance or annuity.
7. Claims Procedure. The Bank shall have authority to control and manage the
operation and administration of this Agreement. Consistent therewith, the
Bank shall make all determinations as to the rights to benefits under this
Agreement. Any decision by the Bank denying a claim by the Director for
benefits under this Agreement shall be stated in writing and delivered or
mailed, via registered or certified mail, to the Director, the Director's
spouse or the Director's beneficiaries, as the case may be. Such decision
shall set forth the specific reasons for the denial of a claim. In
addition, the Bank shall provide the Director, or as applicable, the
Director's spouse or beneficiaries, with a reasonable opportunity for a
full and fair review of the decision denying such claim.
8. Status as an Unsecured General Creditor. Notwithstanding anything contained
herein to the contrary: (i) the Director shall have no legal or equitable
rights, interests or claims in or to any specific property or assets of the
Bank as a result of this Agreement; (ii) none of the Bank's assets shall be
held in or under any trust for the benefit of the Director or held in any
way as security for the fulfillment of the obligations of the Bank under
this Agreement; (iii) all of the Bank's assets shall be and remain the
general unpledged and unrestricted assets of the Bank; (iv) the Bank's
obligation under this Agreement shall be that of an unfunded and unsecured
promise by the Bank to pay money in the future; and (v) the Director shall
be an unsecured general creditor with respect to any benefits which may be
payable under the terms of this Agreement.
Notwithstanding subparagraphs (i) through (v) above, the Bank and the
Director acknowledge and agree that, in the event of a Change in Control,
upon request of the Director, or in the Bank's discretion if the Director
does not so request and the Bank nonetheless deems it appropriate, the Bank
shall establish, not later than the effective date of the Change in
Control, a Rabbi Trust or multiple Rabbi Trusts (the "Trust" or "Trusts")
upon such terms and conditions as the Bank, in its sole discretion, deems
appropriate and in compliance with applicable provisions of the Code, in
order to permit the Bank to make contributions and/or transfer assets to
the Trust or Trusts to discharge its obligations pursuant to this
Agreement. The principal of the Trust or Trusts and any earnings thereon
shall be held separate and apart from other funds of the Bank to be used
exclusively for discharge of the Bank's obligations pursuant to this
Agreement but shall continue to be subject to the claims of the Bank's
general creditors until paid to the Director in such manner and at such
times as specified in this Agreement.
9. Discretion of Board to Accelerate Payout. Notwithstanding any of the other
provisions of this Agreement, the Board of Directors of the Bank or the
Holding Company may, if determined in its sole and absolute discretion to
be appropriate, accelerate the payment of the amounts due under the terms
of this Agreement, provided that the Director consents to the revised
payout terms determined appropriate by the Board of Directors.
10. Miscellaneous.
10.1 Opportunity To Consult With Independent Advisors. The Director acknowledges
that he has been afforded the opportunity to consult with independent
advisors of his choosing including, without limitation, accountants or tax
advisors and counsel regarding both the benefits granted to him under the
terms of this Agreement and the (i) terms and conditions which may affect
the Director's right to these benefits and (ii) personal tax effects of
such benefits including, without limitation, the effects of any federal or
state taxes, Section 280G of the Code, and any other taxes, costs, expenses
or liabilities whatsoever related to such benefits, which in any of the
foregoing instances the Director acknowledges and agrees shall be the sole
responsibility of the Director notwithstanding any other term or provision
of this Agreement. The Director further acknowledges and agrees that the
Bank shall have no liability whatsoever related to any such personal tax
effects or other personal costs, expenses, or liabilities applicable to the
Director and further specifically waives any right for himself or herself,
and his or her heirs, beneficiaries, legal representatives, agents,
successor and assign to claim or assert liability on the part of the Bank
related to the matters described above in this subparagraph 10.1, the
Director further acknowledges that he has read, understands and consents to
all of the terms and conditions of this Agreement, and that he enters into
this Agreement with a full understanding of its terms and conditions.
Nothing contained in this subparagraph 10.1 is intended to constitute a
release by the Director of any rights to indemnity and defense for actions
or inactions in the course and scope of his service as a Director which are
provided to Director under the Bank's or Holding Company's Articles or
Bylaws, any existing indemnity agreements, or any applicable laws.
10.2 Arbitration of Disputes. All claims, disputes and other matters in question
arising out of or relating to this Agreement or the breach or
interpretation thereof, other than those matters which are to be determined
by the Bank in its sole and absolute discretion, shall be resolved by
binding arbitration before a representative member, selected by the mutual
agreement of the parties, of the Judicial Arbitration and Mediation
Services, Inc. ("JAMS"), located in San Jose, California. In the event JAMS
is unable or unwilling to conduct the arbitration provided for under the
terms of this Paragraph, or has discontinued its business, the parties
agree that a representative member, selected by the mutual agreement of the
parties of the American Arbitration Association ("AAA") located in San
Francisco, California, shall conduct the binding arbitration referred to in
this Paragraph. Notice of the demand for arbitration shall be filed in
writing with the other party to this Agreement and with JAMS (or AAA, if
necessary). In no event shall the demand for arbitration be made after the
date when institution of legal or equitable proceedings based on such
claim, dispute or other matter in question would be barred by the
applicable statute of limitations. The arbitration shall be subject to such
rules of procedure used or established by JAMS, or if there are none, the
rules of procedure used or established by AAA. Any award rendered by JAMS
or AAA shall be final and binding upon the parties, and as applicable,
their respective heirs, beneficiaries, legal representatives, agents,
successors and assigns, and may be entered in any court having jurisdiction
thereof. The obligation of the parties to arbitrate pursuant to this clause
shall be specifically enforceable in accordance with, and shall be
conducted consistently with, the provisions of Title 9 of Part 3 of the
California Code of Civil Procedure. Any arbitration hereunder shall be
conducted in San Jose, California, unless otherwise agreed to by the
parties.
10.3 Attorneys' Fees. In the event of any arbitration or litigation concerning
any controversy, claim or dispute between the parties hereto, arising out
of or relating to this Agreement or the breach hereof, or the
interpretation hereof, the prevailing party shall be entitled to recover
from the losing party reasonable expenses, attorneys' fees and costs
incurred in connection therewith or in the enforcement or collection of any
judgment or award rendered therein. The "prevailing party" means the party
determined by the arbitrator(s) or court, as the case may be, to have most
nearly prevailed, even if such party did not prevail in all matters, not
necessarily the one in whose favor a judgment is rendered.
10.4 Notice. Any notice required or permitted of either the Director or the Bank
under this Agreement shall be deemed to have been duly given, if by
personal delivery, upon the date received by the party or its authorized
representative; if by facsimile, upon transmission to a telephone number
previously provided by the party to whom the facsimile is transmitted as
reflected in the records of the party transmitting the facsimile and upon
reasonable confirmation of such transmission; and if by mail, on the third
day after mailing via U.S. first class mail, registered or certified,
postage prepaid and return receipt requested, and addressed to the party at
the address given below for the receipt of notices, or such changed address
as may be requested in writing by a party.
If to the Bank: San ▇▇▇▇ National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
If to the Director: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
10.5 Assignment. The Director shall have no power or right to transfer, assign,
anticipate, hypothecate, modify or otherwise encumber any part or all of
the amounts payable hereunder, nor, prior to payment in accordance with the
terms of this Agreement, shall any portion of such amounts be: (i) subject
to seizure by any creditor of the Director, by a proceeding at law or in
equity, for the payment of any debts, judgments, alimony or separate
maintenance obligations which may be owed by the Director; or (ii)
transferable by operation of law in the event of bankruptcy, insolvency or
otherwise. Any such attempted assignment or transfer shall be void.
10.6 Binding Effect/Merger or Reorganization. This Agreement shall be binding
upon and inure to the benefit of the Director and the Bank. Accordingly,
the Bank shall not merge or consolidate into or with another corporation,
or reorganize or sell substantially all of its assets to another
corporation, firm or person, unless and until such succeeding or continuing
corporation, firm or person agrees to assume and discharge the obligations
of the Bank under this Agreement. In the alternative, the Holding Company
may agree to assume and discharge the obligation of the Bank under this
Agreement. Upon the occurrence of such event, the term "Bank" as used in
this Agreement shall be deemed to refer to such surviving or successor
firm, person, entity or corporation, or the Holding Company, as the case
may be.
10.7 Nonwaiver. The failure of either party to enforce at any time or for any
period of time any one or more of the terms or conditions of this Agreement
shall not be a waiver of such term(s) or condition(s) or of that party's
right thereafter to enforce each and every term and condition of this
Agreement.
10.8 Partial Invalidity. If any terms, provision, covenant, or condition of this
Agreement is determined by an arbitrator or a court, as the case may be, to
be invalid, void, or unenforceable, such determination shall not render any
other term, provision, covenant or condition invalid, void or
unenforceable, and the Agreement shall remain in full force and effect
notwithstanding such partial invalidity.
10.9 Entire Agreement. This Agreement supersedes any and all other agreements,
either oral or in writing, between the parties with respect to the subject
matter of this Agreement and contains all of the covenants and agreements
between the parties with respect thereto. Each party to this Agreement
acknowledges that no other representations, inducements, promises, or
agreements, oral or otherwise, have been made by any party, or anyone
acting on behalf of any party, which are not set forth herein, and that no
other agreement, statement, or promise not contained in this Agreement
shall be valid or binding on either party.
10.10Modifications. Any modification of this Agreement shall be effective only
if it is in writing and signed by each party or such party's authorized
representative.
10.11Paragraph Headings. The paragraph headings used in this Agreement are
included solely for the convenience of the parties and shall not affect or
be used in connection with the interpretation of this Agreement.
10.12No Strict Construction. The language used in this Agreement shall be deemed
to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any
person.
10.13Governing Law. The laws of the State of California, other than those laws
denominated choice of law rules, and where applicable, the rules and
regulations of the Board of Governors of the Federal Reserve System,
Federal Deposit Insurance Corporation, Office of the Comptroller of the
Currency, or any other regulatory agency or governmental authority having
jurisdiction over the Bank or the Holding Company, shall govern the
validity, interpretation, construction and effect of this Agreement.
IN WITNESS WHEREOF, the Bank and the Director have executed this Agreement on
the date first above-written in the City of San Jose, California.
BANK DIRECTOR
San ▇▇▇▇ National Bank
By:
------------------------------------- By:
▇▇▇▇▇ ▇. ▇▇▇▇▇,
President and Chief Executive Officer
6477.1
101\248846.3
SCHEDULE A
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PLAN YEAR APPLICABLE
PERCENTAGE
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May 1, 2000 to April 30, 2001 50%
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May 1, 2001 to April 30, 2002 60%
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May 1, 2002 to April 30, 2003 70%
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May 1, 2003 to April 30, 2004 80%
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May 1, 2004 to April 30, 2005 90%
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May 1, 2005 to April 30, 2006 and thereafter 100%
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6477.1
101\248846.3 -1-
SCHEDULE B
DIRECTOR EMERITUS DUTIES
It will be the responsibility of the Director Emeritus to perform the following
duties:
1. Attend San ▇▇▇▇ National Bank's social functions to which they have been
invited;
2. Continue to refer business opportunities to the Bank;
3. Be available to provide requested advice and consulting to the Bank; and
4. Continue to represent and sponsor the Bank in the Community.
3
SCHEDULE C
WAIVER OF PRIOR PLAN BENEFITS
In consideration for the Director Benefits made available to the Director by
this Director Supplemental Compensation Benefits Agreement (the "Agreement"),
the Director acknowledges and agrees as follows:
(a) The Director is a party to that certain ______________ made with the
Bank or its predecessor dated _________________ (the "Prior Plan
Agreement");
(b) This Agreement and the Director Benefits hereunder are provided as a
substitute for the Prior Plan Agreement and the benefits provided
thereunder;
(c) The Prior Plan Agreement and the benefits thereunder are hereby
terminated effective as of the date of this Agreement;
(d) The Director hereby waives and relinquishes for himself or herself, and
his or her heirs, beneficiaries, legal representatives, agents, successors
and assigns, any and all right, entitlement and interest that the Director
has or may have pursuant to the Prior Plan Agreement and the benefits
thereunder;
(e) The Director accepts the Director Benefits afforded by this Agreement
in full and complete substitution for the benefits otherwise provided by
the Prior Plan Agreement; and
(f) Without limiting the scope and effect of subparagraph 10.1 of the
Agreement, the Director (i) has had an opportunity to consult with advisors
of the Director's own choice in determining to enter into this Agreement
and this Waiver, (ii) understands that the effect of this Waiver is to
terminate, waive and relinquish forever all rights, entitlements and
interests that the Director has or may have under the Prior Plan Agreement
and the benefits thereunder as a condition to receiving the Director
Benefits under this Agreement; and (iii) Director is entering into this
Agreement and this Waiver voluntarily and will full appreciate of the
effect of doing so.
Dated: _______________, 2000 ______________________________
