United States
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
December 22, 2008
FNB BANCORP
(Exact name of registrant as specified in its charter)
California
(State or other jurisdiction of incorporation)
|
|
|
|
|
000-49693 |
|
92-2115369 |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
|
|
|
|
|
|
|
|
975 El Camino Real, South San Francisco, California |
|
94080 |
|
|
|
(Address of principal executive offices) |
|
(Zip Code) |
|
Registrant’s telephone number, including area code: (650) 588-6800
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
|
|
|
|
o |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
|
|
o |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
|
|
o |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
|
|
o |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
|
|
|
|
Item 1.01 |
Entry Into a Material Definitive Agreement |
On December 22, 2008, First National Bank of Northern California (the “Bank”), the wholly owned subsidiary of the registrant (FNB Bancorp), entered into a Second 409A Amendment to the First National Bank of Northern California Salary Continuation Agreements previously executed by Jim D. Black (President of the Bank and FNB Bancorp), Anthony J. Clifford (Executive Vice President and Chief Operating Officer of the Bank and FNB Bancorp), and a first Amendment to the First National Bank of Northern California Executive Supplemental Compensation Agreement previously executed by David A. Curtis (Senior Vice President and Chief Financial Officer of the Bank and FNB Bancorp). The purpose for these amendments was to bring each Agreement into full compliance with Internal Revenue Code Section 409A, effective January 1, 2009. Copies of the amendments are attached to this report as Exhibits 99.66, 99.67 and 99.68, respectively, and are incorporated here by reference.
|
|
|
|
Item 9.01 |
Financial Statements and Exhibits. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
|
|
|
|
|
|
FNB BANCORP (Registrant) |
|
|
|
|
|
|
|
Dated: December 24, 2008. |
|
By: |
/s/ Dave A. Curtis |
|
|
|
|
|
|
|
|
|
Dave A. Curtis |
|
|
|
|
Senior Vice President and |
|
|
|
|
Chief Financial Officer |
Cautionary Statement: This release contains certain forward-looking statements that are subject to risks and uncertainties that could cause actual results to differ materially from those stated herein. Management’s assumptions and projections are based on their anticipation of future events and actual performance may differ materially from those projected. Risks and uncertainties which could impact future financial performance include, among others, (a) competitive pressures in the banking industry; (b) changes in the interest rate environment; (c) general economic conditions, either nationally or regionally or locally, including fluctuations in real estate values; (d) changes in the regulatory environment; (e) changes in business conditions or the securities markets and inflation; (f) possible shortages of gas and electricity at utility companies operating in the State of California, and (g) the effects of terrorism, including the events of September 11, 2001, and thereafter, and the conduct of war on terrorism by the United States and its allies. Therefore, the information set forth herein, together with other information contained in the periodic reports filed by FNB Bancorp with the Securities and Exchange Commission, should be carefully considered when evaluating its business prospects. FNB Bancorp undertakes no obligation to update any forward-looking statements contained in this release.
For
further information contact:
Dave A. Curtis
SVP/CFO
Tel: (650) 875-4862 Fax:
(650) 588-9695
Exhibit 99.66
Second
409A
Amendment
to the
First National Bank of Northern California
Salary Continuation Agreement for
Jim Black
First National Bank of Northern California, a national banking association (“Company”) and Jim Black (“Executive”) originally entered into the First National Bank of Northern California Salary Continuation Agreement (“Agreement”) on September 9, 2004, and amended by the 409A Amendment to the First National Bank of Northern California Salary Continuation Agreement for Jim Black dated July 21, 2006 (“First 409A Amendment”). Pursuant to Section 6.1 of the Agreement, the Company and the Executive hereby adopt this Second 409A Amendment, effective January 1, 2005 (“Amendment”), and intend this Amendment to supplement the First 409A Amendment.
RECITALS
This Amendment is intended to bring the Agreement into compliance with the requirements of Internal Revenue Code Section 409A. Accordingly, the intent of the parties hereto is that the Agreement shall be operated and interpreted consistent with the requirements of Section 409A. Therefore, the following changes shall be made:
|
|
|
|
1. |
Section 1.1, “Change of Control”, shall be deleted in its entirety and replaced with the following Section 1.1: |
1.1 “Change of Control” shall mean a change in ownership or control of the Company as defined in Treasury Regulation §1.409A-3(i)(5) or any subsequently applicable Treasury Regulation.
|
|
|
|
2. |
Section 1.3, “Disability”, shall be deleted in its entirety and replaced with the following Section 1.3: |
1.3 “ Disability ” shall mean Executive: (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months; or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company. Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Company, provided that the definition of Disability applied under such Disability insurance program complies with the requirements of Section 409A. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of Social Security Administration’s or the provider’s determination.
|
|
|
|
3. |
Section 2.3.2, “Payment of Benefit,” shall be amended to delete the words “attaining Normal Retirement Age” and to replace them with the words “Separation from Service.” |
|
|
|
|
4. |
Section 2.4, “Disability Benefit”, shall be amended to delete the words “terminates employment due to Disability prior to Normal Retirement Age” and to replace them with the words “becomes Disabled”. |
|
|
|
|
5. |
Section 2.4.1, “Amount of Benefit”, shall be amended to delete the words “Termination of Employment” from the first sentence and to replace them with the word “Disability”. |
|
|
|
|
6. |
Section 2.4.2, “Payment of Benefit”, shall be amended to delete the words “Termination of Employment” and to replace them with the word “Disability”. |
|
|
|
|
7. |
Section 2.5.2, “Payment of Benefit,” shall be amended to delete the words “Executive attaining Normal Retirement Age” and to replace them with the words “Executive’s Separation from Service.” |
|
|
|
|
8. |
Section 2.6 shall be deleted in its entirety and replaced with the following Section 2.6: |
2.6 Separation from Service . Notwithstanding anything to the contrary in this Agreement, to the extent that any benefit under this Agreement is payable upon a “Termination of Employment,” “Termination of Service,” or other event involving the Executive’s cessation of services, such payment(s) shall not be made unless such event constitutes a “Separation from Service” as defined in Treasury Regulations Section 1.409A-1(h).
|
|
|
|
9. |
Section 7.9, “Administration”, shall be deleted in its entirety and replaced with the following Section 7.9: |
7.9 Administration. The Company shall have powers that are necessary to administer this Agreement, including but not limited to:
|
|
|
|
|
|
(a) |
Establishing and revising the method accounting for the Agreement; |
|
|
|
|
|
|
(b) |
Maintaining a record of benefit payments; |
|
|
|
|
|
|
(c) |
Establishing rules and prescribing any forms necessary or desirable to administer the Agreement; and |
|
|
|
|
|
|
(d) |
Interpreting the provisions of the Agreement, provided that such interpretations are made at all times in compliance with Section 409A of the Code. |
2
|
|
|
|
10. |
A new Section 7.11 shall be added as follows: |
7.11 Certain Accelerated Payments . In certain limited circumstances the Company may make an accelerated distribution permissible to the Executive of deferred amounts, solely to the extent that such distribution meets the requirements of Section 1.409A-3(j)(4). In order to make such accelerated payments, both Executive and the Company must sign a written acknowledgement of the specific Section 1.409A-3(j)(4) exemption being relied upon by the Company in making the accelerated payments
|
|
|
|
11. |
A new Section 7.12 shall be added as follows: |
7.12 Subsequent Changes to Time and Form of Payment . Subject to the restriction set forth below, the Company may permit a subsequent change to the time and form of benefit distributions. Any such change shall be considered made only when it becomes irrevocable under the terms of the Agreement. Any change will be considered irrevocable not later than thirty (30) days following acceptance of the change by the Plan Administrator, subject to the following rules:
|
|
|
|
|
|
(1) |
the subsequent deferral election may not take effect until at least twelve (12) months after the date on which the election is made (i.e. If a distribution event occurs in the interim, the original distribution method must be followed); |
|
|
|
|
|
|
(2) |
the payment (except in the case of death, disability, or unforeseeable emergency) upon which the subsequent deferral election is made is deferred for a period of not less than five (5) years from the date such payment would otherwise have been paid; and |
|
|
|
|
|
|
(3) |
in the case of a payment made at a specified time, the election must be made not less than twelve (12) months before the date the payment is scheduled to be paid. |
Therefore, the foregoing changes are agreed to.
|
|
|
|
|
/s/ Thomas C. McGraw |
|
/s/ Jim D. Black |
|
|
|
|
|
For the Company |
|
Jim Black |
|
|
|
|
|
Date: December 22, 2008 |
|
Date: December 22, 2008 |
3
Exhibit 99. 67
Second 409A Amendment
to the
First National Bank of Northern California
Salary Continuation Agreement for
Anthony Clifford
First National Bank of Northern California, a national banking association (“Company”) and Anthony Clifford (“Executive”) originally entered into the First National Bank of Northern California Salary Continuation Agreement (“Agreement”) on September 9, 2004, and amended by the 409A Amendment to the First National Bank of Northern California Salary Continuation Agreement for Anthony Clifford dated July 21, 2006 (“First 409A Amendment”). Pursuant to Section 6.1 of the Agreement, the Company and the Executive hereby adopt this Second 409A Amendment, effective January 1, 2005 (“Amendment”), and intend this Amendment to supplement the First 409A Amendment.
RECITALS
This Amendment is intended to bring the Agreement into compliance with the requirements of Internal Revenue Code Section 409A. Accordingly, the intent of the parties hereto is that the Agreement shall be operated and interpreted consistent with the requirements of Section 409A. Therefore, the following changes shall be made:
|
|
|
|
1. |
Section 1.1, “Change of Control”, shall be deleted in its entirety and replaced with the following Section 1.1: |
1.1 “Change of Control” shall mean a change in ownership or control of the Company as defined in Treasury Regulation §1.409A-3(i)(5) or any subsequently applicable Treasury Regulation.
|
|
|
|
2. |
Section 1.3, “Disability”, shall be deleted in its entirety and replaced with the following Section 1.3: |
1.3 “ Disability ” shall mean Executive: (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months; or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company. Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Company, provided that the definition of Disability applied under such Disability insurance program complies with the requirements of Section 409A. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of Social Security Administration’s or the provider’s determination.
|
|
|
|
3. |
Section 2.3.2, “Payment of Benefit,” shall be amended to delete the words “attaining Normal Retirement Age” and to replace them with the words “Separation from Service.” |
|
|
|
|
4. |
Section 2.4, “Disability Benefit”, shall be amended to delete the words “terminates employment due to Disability prior to Normal Retirement Age” and to replace them with the words “becomes Disabled”. |
|
|
|
|
5. |
Section 2.4.1, “Amount of Benefit”, shall be amended to delete the words “Termination of Employment” from the first sentence and to replace them with the word “Disability”. |
|
|
|
|
6. |
Section 2.4.2, “Payment of Benefit”, shall be amended to delete the words “Termination of Employment” and to replace them with the word “Disability”. |
|
|
|
|
7. |
Section 2.5.2, “Payment of Benefit,” shall be amended to delete the words “Executive attaining Normal Retirement Age” and to replace them with the words “Executive’s Separation from Service.” |
|
|
|
|
8. |
Section 2.6 shall be deleted in its entirety and replaced with the following Section 2.6: |
2.6 Separation from Service . Notwithstanding anything to the contrary in this Agreement, to the extent that any benefit under this Agreement is payable upon a “Termination of Employment,” “Termination of Service,” or other event involving the Executive’s cessation of services, such payment(s) shall not be made unless such event constitutes a “Separation from Service” as defined in Treasury Regulations Section 1.409A-1(h).
|
|
|
|
9. |
Section 7.9, “Administration”, shall be deleted in its entirety and replaced with the following Section 7.9: |
7.9 Administration. The Company shall have powers that are necessary to administer this Agreement, including but not limited to:
|
|
|
|
|
|
(a) |
Establishing and revising the method accounting for the Agreement; |
|
|
|
|
|
|
(b) |
Maintaining a record of benefit payments; |
|
|
|
|
|
|
(c) |
Establishing rules and prescribing any forms necessary or desirable to administer the Agreement; and |
|
|
|
|
|
|
(d) |
Interpreting the provisions of the Agreement, provided that such interpretations are made at all times in compliance with Section 409A of the Code. |
2
|
|
|
|
10. |
A new Section 7.11 shall be added as follows: |
7.11 Certain Accelerated Payments . In certain limited circumstances the Company may make an accelerated distribution permissible to the Executive of deferred amounts, solely to the extent that such distribution meets the requirements of Section 1.409A-3(j)(4). In order to make such accelerated payments, both Executive and the Company must sign a written acknowledgement of the specific Section 1.409A-3(j)(4) exemption being relied upon by the Company in making the accelerated payments
|
|
|
|
11. |
A new Section 7.12 shall be added as follows: |
7.12 Subsequent Changes to Time and Form of Payment . Subject to the restriction set forth below, the Company may permit a subsequent change to the time and form of benefit distributions. Any such change shall be considered made only when it becomes irrevocable under the terms of the Agreement. Any change will be considered irrevocable not later than thirty (30) days following acceptance of the change by the Plan Administrator, subject to the following rules:
|
|
|
|
|
|
(1) |
the subsequent deferral election may not take effect until at least twelve (12) months after the date on which the election is made (i.e. If a distribution event occurs in the interim, the original distribution method must be followed); |
|
|
|
|
|
|
(2) |
the payment (except in the case of death, disability, or unforeseeable emergency) upon which the subsequent deferral election is made is deferred for a period of not less than five (5) years from the date such payment would otherwise have been paid; and |
|
|
|
|
|
|
(3) |
in the case of a payment made at a specified time, the election must be made not less than twelve (12) months before the date the payment is scheduled to be paid. |
Therefore, the foregoing changes are agreed to.
|
|
|
|
|
/s/ Thomas C. McGraw |
|
/s/ Anthony Clifford |
|
|
|
|
|
For the Company |
|
Anthony Clifford |
|
|
|
|
|
Date : December 22, 2008 |
|
Date: December 22, 2008 |
3
Exhibit 99.68
AMENDMENT
TO
THE FIRST NATIONAL BANK OF NORTHERN CALIFORNIA
EXECUTIVE SUPPLEMENTAL
COMPENSATION AGREEMENT
FOR DAVID A. CURTIS
THIS AMENDMENT , made and entered into this 22 nd day of December, 2008, by and between First National Bank of Northern California, a national banking association (hereinafter referred to as the “Bank”), and David A. Curtis, an Executive of the Bank (hereinafter referred to as the “Executive”), shall effectively amend the First National Bank of Northern California Executive Supplemental Compensation Agreement dated March 3, 2008 (hereinafter referred to as the “Agreement”) as specifically set forth herein. Pursuant to Article 8 of the Agreement, the Bank and the Executive hereby adopt the following amendment:
|
|
|
|
1.) |
Section 2.4, “Disability Benefit,” shall be amended to delete the words “Upon the Executive’s Separation from Service due to Disability” and to replace them with the words “If the Executive shall become Disabled.” |
|
|
|
|
2.) |
Section 2.4.1, “Amount of Benefit,” shall be amended to delete the words “Separation from Service” from the first sentence and to replace them with the word “Disability.” |
|
|
|
|
3.) |
Section 2.4.2, “Form and Timing of Benefit,” shall be amended to delete the words “Separation from Service” from the first sentence and to replace them with the words “date of Disability.” |
|
|
|
|
4.) |
Section 2.5, “Change in Control Benefit,” shall be amended to delete the words “Early Involuntary Termination or Termination for Good Reason” and to replace them with the words “Separation from Service.” |
To the extent that any term, provision, or paragraph of the Agreement is not specifically amended herein, or in any other amendment thereto, said term, provision, or paragraph shall remain in full force and effect as set forth in said Agreement.
IN WITNESS WHEREOF , the parties hereto acknowledge that each has carefully read this Amendment and executed the original thereof on the first day set forth hereinabove, and that, upon execution, each has received a conforming copy.
|
|
|
|
|
|
FIRST NATIONAL BANK OF
|
|
|
|
South San Francisco, California |
|
|
|
|
|
|
|
By: |
/s/ Thomas C. McGraw |
|
|
|
|
|
|
|
(Bank Officer other than Insured) |
|
|
|
|
|
|
Title: Chief Executive Officer |
|
|
|
|
|
|
|
EXECUTIVE |
|
|
|
|
|
|
|
/s/ David A. Curtis |
|
|
|
|
|
|
|
David A. Curtis |
|
2