Exhibit 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made as of this 16th day of
September, 2001 between Temecula Valley Bank, N.A., a national banking
association ("Bank"), and Xxxxxxx X. Xxxxxxxx ("Executive").
WITNESSETH
WHEREAS, the Bank desires that Executive be employed as the Bank's
President, Chairman of the Board and Chief Executive Officer on the terms set
forth herein; and
WHEREAS, Executive is willing to accept such employment under the terms and
conditions herein stated.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, and other good and valuable consideration, it is hereby
agreed that from September 16, 2001 (the "Effective Date") the following terms
and conditions shall apply to Executive's said employment.
A. TERM OF EMPLOYMENT
1. Term. The Bank herebyagrees to employ Executive and Executive
hereby accepts employment with the Bank for the period of five (5) years
commencing on the Effective Date subject to an earlier termination as
provided hereinafter (the "Term"). When used herein, "Term" shall refer to
the entire period of employment of Executive by the Bank hereunder
commencing with the Effective Date, whether for the full period provided
above, or whether terminated earlier as hereinafter provided.
B. DUTIES OF EXECUTIVE
1. Duties. Executive shall perform the duties of President, Chairman
of the Board and Chief Executive Officer of the Bank, subject to the powers
by law vested in the Board of Directors of the Bank (the "Board of
Directors") and in Bank's shareholders, and shall serve as a Director of
the Bank. 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 the Bank's Articles of Association and Bylaws.
2. Exclusivity. Executive shall devote substantially all of
Executive's entire productive time, ability and attention to the business
of the 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, or the
Executive Committee thereof. Notwithstanding the foregoing, Executive may
(i) make investments of a passive nature in any business or venture; or
(ii) serve in any capacity in civic, charitable or social organizations.
3. Physical Examination. Executive may, in his discretion, take an
annual physical examination during each year during the Term of this
Agreement with said physical examination(s) conducted at the expense of the
Bank.
C. COMPENSATION
1. Salary. For Executive's services hereunder, the Bank shall pay, or
cause to be paid, as annual gross base salary, to Executive the amount of
not less than $200,000 during each of the years of the Term, beginning with
the Effective Date. Executive's salary shall be payable in equal
installments in conformity with the Bank's normal payroll periods as in
effect from time to time. The Board of Directors shall also, from time to
time, and at least once each calendar year grant such additional "merit"
increases, if any, in, the base salary as are determined after review to be
appropriate in the discretion of the Board of Directors. The Bank and
Executive both contemplate that his base salary shall be increased as the
Bank grows and profits. Executive shall also, so long as he serves on the
Board of Directors, be entitled to directors and committee fees, and any
other compensation or benefits provided to outside directors of the Bank
(including, but not limited to, committee fees, any director retirement
benefits, any stock options granted to directors in such capacity, etc.) in
addition to the compensation and benefits provided to him as an employee
pursuant to this Agreement.
D. EXECUTIVE BENEFITS
1. Vacation. Executive shall be entitled to a vacation leave accruing
at the rate of two and one-half (2.5) vacation days for each month in which
he works (and a pro rata portion thereof for partial weeks, except that
banking holidays shall be treated as days worked) during each year of the
Term, of which two (2) weeks must be taken consecutively in each calendar
year. Executive shall be entitled to vacation pay in lieu of vacation. Time
spent by Executive at (or traveling to and from) seminars, conventions or
conferences related to Bank business shall not be counted against his
vacation leave.
2. Automobile. The Bank shall provide for the use of Executive a
suitable automobile (equivalent to, or better than, a Lexus LS 400),
commensurate with his position, and shall pay all the expenses (including,
but not limited to, maintenance, fuel, insurance, registration) related
thereto during the Term.
3. Group Medical and Life Insurance Benefits. The Bank shall provide
for Executive, at the Bank's expense during the Term, and after the Term
until death in accordance with the Bank's policy now in effect or as shall
be amended as soon as practicable to provide for ongoing coverage upon the
events described in such policy, participation in a comprehensive major
medical and dental, with life insurance benefits, equivalent to the maximum
available from time to time under the California Bankers Association Group
Insurance Program for an employee of Executive's salary level. Any such
insurance for which Executive votes in favor as a director, or endorses as
an officer, shall be deemed to meet the requirements of this paragraph.
Term life insurance benefits shall be provided to Executive, at the Bank's
expense during the term hereof, in an amount not less than $250,000, with
Executive to be entitled to make an irrevocable designation of the
beneficiary and owner of the policy thereunder. Executive's Salary
Continuation Agreement with the Bank currently in effect shall be
maintained by the Bank during the Term.
4. Bonus. For each calendar year end within the Term, Executive shall
be entitled to an Incentive Bonus determined in accordance with this
paragraph if the Threshold Tests are met. The Threshold Tests shall be
deemed to have been met if (i) the Bank's regular outside independent loan
reviewer gives a favorable review of the loan quality of the Bank at, or
within three (3) months of, the end of the year; (ii) net loan losses for
the year do not exceed one percent (1.0%) of gross outstanding loans at the
beginning of the year; or (iii) the latest report of supervisory activity
of the Bank by the Office of the Comptroller of the Currency (or other bank
regulatory agency) rates the Bank no less than satisfactory. The Incentive
Bonus shall equal the Applicable Percentage of the Bank's "Profits." For
purposes of this Section 4, "Profits" shall mean the Bank's net income
before income taxes and before the effect of this bonus or any other
bonuses based on the profits of the Bank. The Applicable Percentage shall
be:
(a) 5% if the Profits are $2,000,000 or less;
(b) 6% if Profits are $2,000,001 or greater up to $3,000,000;
(c) 7% if Profits are $3,000,001 or greater up to $4,000,000;
(d) 8% if Profits are $4,000,001 or greater up to $5,000,000;
(e) 9% if Profits are $5,000,001 or greater up to $6,000,000;
(f) 10% if Profits exceed $6,000,000.
For example, if the Bank's Profits for calendar years 2001 and 2001 equaled
$5,500,000 and $6,250,000, respectively, Executive's Incentive Bonus under
this Section 4 for 2001 would be $495,000 and for 2002 the Incentive Bonus
would be $625,000. This bonus shall be payable in January of the year
following completion of the year on which it is based, or as soon
thereafter as is practical after the Bank's certified public accountants
have delivered their report on the Bank's condition and results of
operations for the year.
5. Sick Leave. Executive shall be entitled to sick leave in accordance
with the Bank's Personnel Policy, accruing at a rate of not less than one
day per month or partial month of service. Accrued sick leave may be
carried over from prior periods, but Executive shall not be entitled to be
paid in lieu thereof.
6. Disability Coverage.
(a) The Bank shall continue to maintain for the benefit of the
Executive a long term disability insurance policy. Said policy shall
provide benefits of not less than $120,000 per year and shall remain
in effect to age sixty five (65). To the extent no disability payments
are made by the insurer after disability but before payments are made
under such policy, the Bank shall provide monthly payments to the
Executive equal to $10,000 per month. The Bank shall not be
responsible for the premiums on such policy after termination of
Executive's employment by the Bank.
(b) After age sixty five (65), in the event of Executive's
disability as determined under applicable policies of the Bank
covering Executive, the Bank shall pay to Executive the difference
between the amount received by Executive under the then in effect Bank
disability policies and $15,000 per month until September 16, 2006.
E. BUSINESS EXPENSES AND REIMBURSEMENT
1. Business Expenses. Executive shall be entitled to reimbursement by
the Bank for any ordinary and necessary business expenses incurred by
Executive in the performance of Executive's duties and in acting for the
Bank during the Term, provided that an independent officer of the Bank
approves such expenses in accordance with the standards set forth herein.
Executive shall furnish to the Bank adequate records and other documentary
o evidence required by federal and state statutes and regulations issued by
the appropriate taxing authorities for the substantiation of such payments
as deductible business expenses of the Bank and not as deductible
compensation to Executive; provided, however, that reimbursement of such
expenses shall not be dependent on proving deducibility of such expenses
for tax purposes if such expenses are otherwise determined by the Board of
Directors, in its sole discretion, to be appropriate.
F. TERMINATION
1. Termination With Cause. Except as otherwise provided herein, this
Agreement may be terminated by the Bank, at the Bank's option with notice
to Executive, upon the occurrence of any of the following events:
(a) Executive is convicted of illegal activity by a court of
competent jurisdiction or pleads guilty to or nolo contendere to,
illegal activity, which activity materially adversely affects the
Bank's reputation in the community or which evidences the lack of
Executive's fitness or ability to perform Executive's duty and
determined by the Board of Directors in good faith;
(b) Executive has committed any illegal or dishonest act which
would cause termination of coverage under the Bank's Bankers Blanket
Bond as to Employee, as distinguished from termination of coverage as
to the Bank as a whole;
(c) Executive after written notice from the Board of Directors
specifying the event and how it can be corrected again materially
fails to perform or habitually neglects Executive's duties;
(d) Executive becomes permanently disabled as such is defined in
his or the Bank's disability insurance policies (or if no such
definition, as defined by federal law or regulation pursuant to the
Social Security Act or a related statute), such disability makes
Executive eligible for benefits thereunder, and any relevant waiting
periods have passed. Any controversy concerning Executive's disability
shall be settled by arbitration in accordance with the rules of the
American Arbitration Association. Any termination pursuant to this
subsection (d) shall not affect the continued operation of that
portion of Section D.6. hereof which is intended to survive
Executive's disability;
(e) The Comptroller of the Currency, or any other regulatory
agency having jurisdiction, finally removes, or suspends Executive
from office;
(f) The Comptroller of the Currency or other supervisory or
regulatory authority having jurisdiction takes possession of the
property and business of the Bank; or
(g) Any regulatory authority having supervisory authority over
the Bank exercises its cease and desist authority to remove Executive
from office or advises the Bank that Executive should be removed from
office.
Notwithstanding the foregoing, Executive shall not be deemed to
have been terminated pursuant to Section F.I. unless and until there
has been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than two-thirds (2/3) of the entire
authorized membership of the Board of Directors at a meeting of the
Board of Directors called and held for the purpose (after reasonable
notice and an opportunity for Executive, together with counsel, to be
heard before the Board of Directors), finding that in the good faith
opinion of the Board of Directors he engaged in conduct set forth
above in clauses (a) through (g) of this Section F.I. and specifying
the particulars thereof in detail.
2. Termination Without Cause or Resignation for Good Reason.
(a) During the Term, this Agreement may be terminated by the Bank
without cause upon written notice to Executive or by the Executive for
Good Reason, as defined below.
(b) During the Term, this Agreement may be terminated by
Executive without cause upon written notice to the Bank.
3. Compensation Upon Termination.
(a) If Executive's employment with the Bank is terminated by the
Bank pursuant to Section F. 1., or by Executive pursuant to Section
F.2.(b), Executive shall then only be entitled to receive the amount
of his annual gross salary payable through the effective date of such
termination (plus proration of the Incentive Bonus described in
Section D.4. above if warranted by Executive's performance, as
determined in the sole discretion of the Board of Directors) and any
incurred but not yet reimbursed business expenses (subject to the
provisions of Section E.I. hereof).
(b) If Executive's employment is terminated by the Bank or any
successor pursuant to Section F.2.(a), by Executive pursuant to
Section F.2.(a) or by the Bank or any successor within one (1) year
before or after any acquisition of the Bank or its assets, or a merger
or reorganization involving the Bank (regardless of the structure of
the acquisition, merger or reorganization) and such termination is not
based upon Section F.I., he shall be entitled to the same amount as if
the termination had been pursuant to Section F.I., plus an immediate
payment in an amount equal to the greater of: (i) one (1) times the
annual gross base salary of Executive (as in effect immediately prior
to termination) plus the amount equal to the Incentive Bonus provided
in Section D.4. above as though a full year had lapsed (calculated as
follows: the Incentive Bonus for the number of months lapsed, divided
by the number of months lapsed and the resulting number multiplied by
twelve (12); or (ii) two (2) times Executive's annual gross base
salary, as in effect immediately prior to termination, to be paid in a
lump sum, I less any applicable withholding deductions.
(c) Notwithstanding the foregoing, to the extent that 12 U.S.C.
ss.1828 and regulations promulgated pursuant thereto prohibit, or
limit, the payment of compensation pursuant to this Section F.3.,
Executive's right to compensation hereunder shall be similarly
prohibited or limited.
(d) Good Reason shall mean that without Executive's express
written consent, the assignment to Executive of any duties
inconsistent with his positions, duties, responsibilities and status
with the Bank; or a change in his reporting responsibilities, titles
or offices; or any removal of Executive from or any failure to
re-elect Executive to any of such positions, except in connection with
the termination of his employment pursuant to Section F.I. or
retirement or as a result of his death or by Executive other than for
Good Reason; or a reduction by Bank in Executive's annual gross base
salary as in effect on the date hereof or as the same may be increased
from time to time.
G. GENERAL PROVISIONS
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
the customers of the Bank, i and all other files, books and records
and other materials owned by the 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 the 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 the
Bank by Executive on any termination of his employment. Executive
shall be entitled to copies of any policies, procedures or forms
prepared with his assistance.
(b) During the Term, Executive will have access to and become
acquainted with what Executive and the Bank acknowledge are trade
secrets, to wit, knowledge or data concerning the Bank, including its
operations and business, and the identity of customers of the Bank,
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 the Bank.
Executive shall not solicit any employee or customer of the Bank to
become an employee or customer of another institution until six months
following the termination; provided, however, that Executive shall not
be prohibited from soliciting customers with which he had a banking
relationship established at another employer prior to the commencement
of the term hereof.
2. Assi.gnment and Modification. This Agreement, and the rights and
duties hereunder, may not be assigned by either party hereto without the
prior written consent of the other, and the parties expressly agree that
any attempt to assign the rights of any party hereunder without such
consent will be null and void; provided, however, that the Bank's rights
and obligations hereunder shall be assignable without consent by operation
of law in the event of a merger or similar transaction involving the Bank.
3. Further Assurance. From time to time each party will execute and
deliver such further instruments and will take such other action as the
other party reasonably may request in order to discharge and perform the
obligations and agreements hereunder.
4. Arbitration. Any dispute, controversy or claim arising out of or
relating to this Agreement, or a breach thereof (other than matters
pertaining to injunctive relief, including, but not limited to, temporary
restraining orders, preliminary injunctions and'permanent injunctions,)
shall be finally settled by arbitration in accordance with the rules then
prevailing of the American Arbitration Association. Judgment upon the award
rendered in such arbitration may be entered and enforced in any court of
competent jurisdiction. The prevailing party shall be entitled to all costs
of arbitration or litigation as determined by the arbitrators or the court,
including, but not limited to, reasonable attorneys' fees. Any excluded
matter shall be determined by the San Diego County Superior Court, subject
to any rights of appeal which may exist. The arbitration, including the
rendering of the award, shall take place in the County of San Diego, State
of California, unless otherwise agreed to in writing by the parties. In
reaching a decision, the arbitrator(s) shall be bound by the terms of this
Agreement. The award and judgment thereon shall include interest, at the
legal rate, from the date that the sum awarded to the prevailing party was
originally due and payable. The parties hereto agree that the arbitrator(s)
shall have jurisdiction to award punitive damages. Arbitration shall be the
exclusive means of resolution of disputes, controversies or claims arising
out of this Agreement and which are subject to arbitration. The parties
agree that they shall be entitled to conduct discovery in accordance with
Sections 1283.05 and 1283.1 of the California Code of Civil Procedure, or
any successor provision thereof, in the same manner as though the dispute
were within the jurisdiction of the Superior Court of the State of
California.
5. Notices. All notices required or permitted hereunder shall be in
writing and shall be delivered in person or sent by certified or registered
mail, return receipt requested, postage prepaid as follows:
To Bank: Temecula Valley Bank, N.A.
00000 Xxxxxxxxx Xxxxx Xxxxxxxx, XX 00000
To Executive: Xxxxxxx X. Xxxxxxxx
2148RockhoffRoad Xxxxxxxxx, XX 00000
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 of delivery if delivered in person or on the third day
next succeeding the date of mailing if sent by certified or registered
mail, postage prepaid.
6. Successors. This Agreement shall be binding upon, and shall inure
to the benefit of, the successors and assigns of the parties.
7. Entire Agreement. Except as provided herein and in any separate for
the provision of benefits to Executive, 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.
8. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of California.
9. 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.
10. 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.
11. 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.
12. 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 thereof, shall not be affected thereby.
13. Attorneys' Fees, hi 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.
14. Indemnification. The Bank shall indemnify and hold Executive
harmless from, claims (defined in the broadest sense, including claims for
monetary or non- monetary relief, and any claims brought before an
administrative agency or body) arising out of, or related to, his service
as an officer, director or agent of the Bank, to the fullest extent
permitted by applicable law, including his costs of defense and attorneys
fees and shall advance his costs of defense (including legal fees) related
to the defense thereof to the extent permitted by applicable law.
15. 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 provisions 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.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, this Agreement is executed as of the day and year first
above written.
Bank: TEMECULA VALLEY BANK, N.A.
Bank: TEMECULA VALLEY BANK N.A.
By: /S/XXXXXX X XXXXXXX
Senior Vice President and Chief Operating Officer
Executive: By: /S/XXXXXXX X. XXXXXXXX
