Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and effective as of January
3, 2001 between TEMECULA VALLEY BANK, N.A., a national banking association
("Bank") and XXX XXXXX ("Executive").
RECITAL
Bank desires that Executive be employed as Executive Vice President/East
County Regional Manager of Bank and Executive desires to be so employed subject
to the terms and conditions herein stated.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the parties agree
as follows:
1. TERM OF EMPLOYMENT
1.1. Term. Bank hereby agrees to employ Executive, and Executive hereby
accepts employment with Bank, for the period commencing January 25 2001
("Commencement Date"), and ending two years thereafter, subject, however, to
prior termination as provided in Section 4 hereof. Executive shall perform the
duties hereunder on a four day per week work schedule. When used herein, "Term"
shall mean the entire period of employment of Executive by Bank hereunder,
commencing as of the Commencement Date, whether for the full period provided
above, or whether terminated earlier.
2. DUTIES OF EXECUTIVE
2.1. Duties. Executive shall perform the duties of Executive Vice
President/East County Regional Manager of Bank, as specified in Exhibit "A"
hereto, and duties assigned by Bank's Chief Executive Officer or Board of
Directors subject to the powers by law vested in the Board of Directors of Bank
and in Bank's Shareholders. During the Term, Executive shall perform the
services herein contemplated to be performed by Executive with due care
faithfully, diligently, to the best of Executive's ability and in compliance
with all applicable laws and Bank's Articles of Association and Bylaws.
2.2. Exclusivity. Executive shall devote substantially all of Executive's
productive time, ability and attention to the business of Bank during the Term.
Executive shall not directly or indirectly render any services of a business,
commercial or professional nature to any other person, firm or corporation for
compensation without prior consent evidenced by a resolution duly adopted by the
Board of Directors of Bank, or the Executive Committee thereof. Notwithstanding
the foregoing, Executive may (i) make investments of a passive nature in any
business or venture; and (ii) serve in any capacity in civic, charitable or
social organizations, provided, however, that such investments or services shall
not be in competition, directly or indirect, in any manner with Bank.
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3. COMPENSATION AND BENEFITS
3.1. Salary. For Executive's services hereunder, Bank shall pay, or cause
to be paid, as annual gross base salary, to Executive in the amount of $140,000
during the Term, beginning with the Commencement Date, payable in equal
installments in accordance with Bank's normal payroll periods as in effect from
time to time. In addition, Executive shall be paid 7.5 basis points of total
loan production generated out of the Bank's El Cajon office (excluding lines of
credit), as reasonably determined by Bank and paid within 45 days of the end of
each calendar quarter, plus 2.5% of the annual after-tax profits generated
generated out of the Bank's El Cajon office, as reasonably determined by the
Bank and paid within 30 days of receipt by the Bank of its audited financial
statements.
3.2. Vacation. Executive shall be entitled to 20 days of vacation leave
each year of the Term accruing in accordance with Bank policy, of which eight
consecutive working days must be taken in each calendar year ("Mandatory
Vacation"). Any vacation not used in excess of the Mandatory Vacation shall not
accumulate but at the end of each year of the Term, Executive shall be entitled
to vacation pay in lieu of vacation.
3.3. Equipment. Bank shall provide for Executive's use an automobile, the
selection of which shall be within the discretion of the Board of Directors.
Bank shall pay all the expenses (including, but not limited to, maintenance,
fuel, insurance, registration) related to such automobile during the Term. Bank
shall also provide Executive with a cellular phone for Executive's reasonable
use in the performance of his duties hereunder. Bank shall pay all reasonable
expenses in connection with the business use of such cellular phone.
3.4. Group Medical and Other Benefits. Bank shall provide for Executive, at
Bank's expense, participation in the medical and other benefit plans offered to
other similarly titled employees of Bank, commencing on the first day of the
month following Executive's start date. Bank will reimburse Executive for any
COBRA costs incurred in maintaining insurance coverage between the Commencement
Date and the effective date of coverage under the Bank's medical and other
benefit plans. Executive will become eligible to participate in Bank's 401(k)
Plan on the first day of the month following the 90th day after the Commencement
Date. Executive will also be eligible to participate in Bank's Senior Management
Retirement Program on terms agreeable to Bank and Executive. Bank acknowledges
that "business casual" attire is appropriate for Executive in the performance of
his duties hereunder.
3.5. Sick Leave. Executive shall be entitled to sick leave in accordance
with Bank's personnel policy. Accrued sick leave may not be carried over from
prior periods and Executive shall not be entitled to be paid in lieu thereof.
3.6. Stock Options. As soon as practicable after the Commencement Date,
Executive shall receive an option to purchase not less than 10,000 shares of
Bank common stock in accordance with the terms of Bank's employee stock option
plan. Executive shall also be entitled to an additional grant to purchase an
additional 10,000 shares of Bank common stock should the Bank's existing
employee stock option plan be amended by shareholder vote to enlarge the pool of
shares available for stock options.
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4. TERMINATION.
4.1. Termination With Cause. Except as otherwise provided herein, this
Agreement may be terminated by Bank, at Bank's option with notice to Executive,
upon the occurrence of any of the following events:
(a) A material breach by Executive of any of the express terms or
provisions of this Agreement;
(b) Executive is charged with illegal activity or pleads guilty to or nolo
contendere to, illegal activity;
(c) Executive has committed any illegal or dishonest act which would cause
termination of coverage under Bank's Bankers Blanket Bond as to Executive or
termination of coverage as to Bank as a whole;
(d) Executive fails to perform or neglects Executive's duties or commits an
act of malfeasance or misfeasance in connection therewith;
(e) Executive becomes permanently disabled, as determined in good faith by
the Board of Directors;
(f) The Comptroller of the Currency, or any other regulatory agency having
jurisdiction, requests Executive's dismissal or removal, issues a notice of
suspension or removal, finally removes, or suspends Executive from office;
(g) The Comptroller of the Currency or other supervisory or regulatory
authority having jurisdiction takes possession of the property and business of
Bank; or
(h) The death of the Executive.
4.2. Termination Without Cause.
(a) During the Term, subject to provisions specifically intended to survive
termination, this Agreement may be terminated by either party without cause upon
written notice to the other.
4.3. Compensation Upon Termination. If Executive's employment is terminated
by Bank pursuant to Section 4.1 above, or by Executive pursuant to Section
4.2(a), Executive shall then only be entitled to receive his salary through the
effective date of such termination. If Executive's employment is terminated by
Bank pursuant to Section 4.2(a), subject to any limitations on payments under
applicable federal or state law, Executive shall be entitled to the same amount
as if the termination had been pursuant to Section 4.1, plus an immediate
payment in an amount equal to Executive's salary (as in effect immediately prior
to termination) for the severance period, which shall, for this purpose, be the
lesser of three (3) months from the effective date of termination, or the
remainder of the Term.
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4.4. Vesting of Options Upon Change of Control. Executive's option
agreements covering stock options to be issued to him shall provide that in the
event of a Change in Control (as defined below), all options shall vest
immediately prior to any Change in Control. "Change of Control" means: (a) more
than fifty percent (50%) of Bank's voting stock is transferred to a person or
entity that is not, prior to the transaction, a Bank "Affiliate," as that term
is defined in 12 U.S.C. Section 371c and "Affiliate" shall include the formation
of a Bank holding company; or (b) a merger or consolidation transaction pursuant
to which Bank's shareholders prior to the merger or consolidation own less than
50% of the resulting entity after the merger or consolidation.
4.5. Other Employment. In the event of termination of Executive under
Section 4.2 and payment by Bank of the severance compensation, Executive agrees
not to seek or accept employment in the Banking industry for performance of
services within a 25 mile radius of every location Bank maintains an office for
a period of three (3) months from the effective date of termination. If
Executive chooses to accept such employment, he shall not be entitled to the
severance payments and to the extent paid, shall be repaid immediately to Bank.
5. INDEMNITY. The parties recognize that a person or entity can attempt lo'
assert a claim, demand or suit regardless of the lack of merit or merit of such
claim, demand or suit and regardless of the enforceability or unenforceability
of any agreements which form the "" basis of such claim, and further recognize
that litigation or threatened litigation can be costly and time consuming. Bank
agrees that in the event Executive's immediate prior employer does assert any
claim, demand or suit against Executive during the Term, then Bank shall pay or
reimburse Executive for costs, expenses (including reasonable attorneys fees),
judgments and settlements in connection with any such claim, demand or suit.
6. GENERAL PROVISIONS.
6.1. Ownership of Books and Records; Confidentiality.
(a) All records or copies thereof of the accounts of customers, and any
other records and books relating in any manner whatsoever to Bank customers, and
all other files, books and records and other materials owned by Bank or used by
it in connection with the conduct of its business, whether prepared by Executive
or otherwise coming into his possession, shall be the exclusive property of Bank
regardless of who actually prepared the original material, book or record. All
such books and records and other materials, together with all copies thereof,
shall be immediately returned to Bank by Executive on any termination of his
employment; and
(b) During the Term, Executive will have access to and become acquainted
with what Executive and Bank acknowledge are trade secrets, to wit, knowledge or
data concerning Bank, including its operations and business, and the identity of
Bank customers, including knowledge of their financial condition, their
financial needs, as well as their methods of doing business. Executive shall not
disclose any of the aforesaid trade secrets, directly or indirectly, or use them
in any way, either during the Term or thereafter, except as required in the
course of Executive's employment with Bank. Executive shall not solicit any
employee or Bank customer to become an employee or customer of another
institution until one (1) year following the termination.
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6.2. Assignment and Modification. This Agreement, and the rights and duties
hereunder, may not be assigned by Executive.
6.3. Notices. All notices required or permitted hereunder shall be in
writing and shall be delivered in person, sent by courier, by facsimile or
certified or registered mail, return receipt requested, postage prepaid as
follows:
To Bank: Temecula Valley Bank, N.A.
00000 Xxxxxxxxx Xxxxx, Xxxxx X000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, President /
Chief Executive Officer
Facsimile: (000) 000-0000
To Executive: Xxx Xxxxx
Facsimile: _____________________________
With a copy to: Xxxxxxxxx X. Xxxxx, Esq.
Me Xxxxxxx, Xxxxx & Xxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
or to such other party or address as either of the parties may designate in a
written notice served upon the other party in the manner provided herein. All
notices required or permitted hereunder shall be deemed duly given and received
on the date received if delivered in person, by courier or by facsimile, or on
the third day next succeeding the date of mailing if sent by certified or
registered mail, postage prepaid.
6.4. Successors. This Agreement shall be binding upon, and shall inure to
the benefit of, the successors and assigns of the parties.
6.5. Entire Agreement. Except as provided herein, this Agreement
constitutes the entire agreement between the parties, and all prior
negotiations, representations, or agreements between the parties, whether oral
or written, are merged into this Agreement. This Agreement may only be modified
by an agreement in writing executed by both of the parties hereto.
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6.6. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of California.
6.7. Executed Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall constitute a single agreement and each
of which shall be an original for all purposes.
6.8. Section Headings. The various section headings are inserted for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement or any section hereof.
6.9. Calendar Days/Close of Business. Unless the context so requires, all
periods terminating on a given day, period of days or date shall terminate on
the close of business on that day or date and references to "days" shall refer
to calendar days.
6.10. Severability. In the event that any of the provisions, or portions
thereof, of this Agreement are held to be unenforceable or invalid by any court
of competent jurisdiction, the validity and enforceability of the remaining
provisions or portions hereof, shall not be affected thereby.
6.11. Attorneys' Fees. In the event that any party shall bring an action or
arbitration in connection with the performance, breach or interpretation hereof,
then the prevailing party in such action as determined by the court or other
body having jurisdiction shall be entitled to recover from the losing party in
such action, as determined by the court or other body having jurisdiction, all
reasonable costs and expenses of litigation or arbitration, including reasonable
attorneys' fees, court costs, costs of investigation and other costs reasonably
related to such proceeding, in such amounts as may be determined in the
discretion of the court or other body having jurisdiction.
6.12. Rules of Construction. The parties hereby agree that the normal rule
of construction, which requires the court to resolve any ambiguities against the
drafting party, shall not apply in interpreting this Agreement. This Agreement
has been reviewed by each party and counsel for each party and shall be
construed and interpreted according to the ordinary meaning of the words used so
as to fairly accomplish the purposes and intentions of all parties hereto. Each
provision of this Agreement shall be interpreted in a manner to be effective and
valid under applicable law, but if any provision shall be prohibited or ruled
invalid under applicable law, the validity, legality and enforceability of the
remaining provisions shall not, except as otherwise required by law, be affected
or impaired as a result of such prohibition or ruling.
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IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
Bank: TEMECULA VALLEY BANK N.A.
By: /S/XXXXXXX X. XXXXXXXX
President and Chief Executive Officer
Executive: /S/XXX XXXXX
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Exhibit "A"
Duties of Executive Vice President
POSITION TITLE: Executive Vice President/East County Regional Manager
REPORTS
DIRECTLY TO: President/Chief Executive Officer
FUNCTION: Administers the activities of Bank's loan production
office/full service branch lending function at locations
designated by Bank directly and through subordinates. Assumes
overall responsibility for the profitability and safety of the
LAO/branch loan portfolio.
DUTIES:
1. Directs the LOP/branch lending activities by:
a. Continuously monitoring the condition of the loan portfolio to ensure
that Bank's lending policy is being followed, that the portfolio is
sound and that delinquencies and charge-offs are kept to an acceptable
minimum.
b. Reviewing subordinates' recommendations concerning loans in excess of
their lending authority; advising them in the evaluation of complex or
marginal loan applications.
c. Ensuring that branch officers are trained and active in the
development of new business.
d. Personally developing, making and servicing commercial loans,
particularly those which are large, complex or of special importance
to Bank.
2. Ensures effective and efficient loan review and servicing.
3. Participates in C.R.A. efforts.
4. Assumes additional responsibilities as requested.
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