Exhibit 10.14
AMENDED AND RESTATED
TEMECULA VALLEY BANK, N.A.
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is adopted this 1st day of January, 2004, by and between
the TEMECULA VALLEY BANK, N.A., a national banking association located in
Temecula, California (the "Company") and XXXXXX X. XXXX (a/k/a Xxxx Xxxx) (the
"Executive"), amending, restating and replacing the Amended and Restated
Temecula Valley Bank, N.A., Salary Continuation Agreement dated January 1, 2002
and a First Amendment thereto dated December 31, 2002, between the Company and
the Executive.
For clarification, the January 1, 2002 agreement previously amended and
restated the Amended and Restated Temecula Valley Bank, N.A., Salary
Continuation Agreement dated September 3, 1999 (distinguished by the lump sum
payment provisions under Sections 2.2, 2.3 and 2.4) and a First Amendment
thereto dated November 6, 2001, between the Company and the Executive. The
September 3, 1999, agreement previously amended and restated a Salary
Continuation Agreement dated November 24, 1997, and another Amended and Restated
Salary Continuation Agreement also dated September 3, 1999.
INTRODUCTION
WITNESSETH:
WHEREAS, the Executive is in the employ of the Company, serving as its
Chief Operating Officer; and
WHEREAS, the experience, knowledge of the affairs of the Company, and
reputation and contacts in the industry of the Executive are so valuable that
assurance of the Executive's continued service is essential for the future
growth and profits of the Company, and it is in the best interest of the Company
to arrange terms of continued employment for the Executive so as to reasonably
assure the Executive's remaining in the Company's employment during the
Executive's lifetime or until the age of retirement; and
WHEREAS, it is the desire of the Company that the Executive's services be
retained as herein provided; and
WHEREAS, the Executive is willing to continue in the employ of the Company
provided the Company agrees to pay to the Executive or the Executive's
beneficiaries certain benefits in accordance with the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the services to be performed in the
future, as well as the mutual promises and covenants herein contained, it is
agreed as follows:
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Change of Control" means
(a) A change in the ownership of the capital stock of the
Company, whereby another corporation, person, or group acting in concert
(hereinafter this Agreement shall collectively refer to any combination of
these three [another corporation, person, or group acting in concert] as a
"Person") as described in Section 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), acquires, directly or indirectly,
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of a number of shares of capital stock of the Company
which constitutes twenty-five percent (25%) or more of the combined voting
power of the Company's then outstanding capital stock then entitled to vote
generally in the election of directors; or
(b) The persons who were members of the Board of Directors of
the Company immediately prior to a tender offer, exchange offer, contested
election or any combination of the foregoing, cease to constitute a
majority of the Board of Directors; or
(c) The adoption by the Board of Directors of the Company of a
merger, consolidation or reorganization plan involving the Company in which
the Company is not the surviving entity, or a sale of all or substantially
all of the assets of the Company. For purposes of this Agreement, a sale of
all or substantially all of the assets of the Company shall be deemed to
occur if any Person acquires (or during the 12-month period ending on the
date of the most recent acquisition by such Person, has acquired) gross
assets of the Company that have an aggregate fair market value equal to
twenty-five (25%) or more of the fair market value of all of the respective
gross assets of the Company immediately prior to such acquisition or
acquisitions; or
(d) A tender offer or exchange offer is made by any Person which
results in such Person beneficially owning (within the meaning of Rule
13d-3 promulgated under the Exchange Act) either twenty-five (25%) or more
of the Company's outstanding shares of Common Stock or shares of capital
stock having twenty-five (25%) or more the combined voting power of the
Company's then outstanding capital stock (other than an offer made by the
Company), and sufficient shares are acquired under the offer to cause such
person to own twenty-five (25%) or more of the voting power; or
(e) Any other transactions or series of related transactions
occurring which have substantially the same effect as the transactions
specified in any of the preceding clauses of this Section 1.1.
1
Notwithstanding the above, certain transfers are permitted within Section
318 of the Code and such transfers shall not be deemed a Change of Control under
this Section 1.1.
1.2 "Code" means the Internal Revenue Code of 1986, as amended.
1.3 "Disability" means the Executive suffering a sickness, accident or
injury which has been determined by the carrier of any individual or group
disability insurance policy covering the Executive, or by the Social Security
Administration, to be a disability rendering the Executive totally and
permanently disabled. The Executive must submit proof to the Company of the
carrier's or Social Security Administration's determination upon the request of
the Company.
1.4 "Early Termination" means the Termination of Employment before Normal
Retirement Age for reasons other than death, Disability, Termination for Cause
or following a Change of Control.
1.5 "Early Termination Date" means the month, day and year in which Early
Termination occurs.
1.6 "Effective Date" means November 24, 1997.
1.7 "Normal Retirement Age" means the Executive's 70th birthday.
1.8 "Normal Retirement Date" means the later of the Normal Retirement Age
or Termination of Employment.
1.9 "Plan Year" means a twelve-month period commencing on January 1 and
ending on December 31 of each year. The initial Plan Year shall commence on the
effective date of this Agreement.
1.10 "Termination for Cause" See Section 5.1.
1.11 "Termination of Employment" means that the Executive ceases to be
employed by the Company for any reason whatsoever other than by reason of a
leave of absence, which is approved by the Company. For purposes of this
Agreement, if there is a dispute over the employment status of the Executive or
the date of the Executive's Termination of Employment, the Company shall have
the sole and absolute right to determine the termination date.
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. Upon Termination of Employment on or after
the Normal Retirement Age for reasons other than death, the Company shall pay to
the Executive the benefit described in this Section 2.1 in lieu of any other
benefit under this Agreement.
2
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1 is
$80,000 (Eighty Thousand Dollars). The Board of Directors may in its sole
and absolute discretion unilaterally increase the annual benefit amount at
the end of each Plan Year from the date of this Agreement to the
Executive's Normal Retirement Date. If the Board of Directors increase this
annual benefit, then the Schedule A attached hereto shall also be
recalculated to increase the benefits under Article 2 of this Agreement.
2.1.2 Payment of Benefit. The Company shall pay the annual benefit to
the Executive in 12 equal monthly installments payable on the first day of
each month commencing with the month following the Executive's Normal
Retirement Date. The Company shall pay this annual benefit to the Executive
for the greater of: a) 20 years; or b) the Executive's lifetime.
2.1.2.1 Lump Sum Option. At any time after installment payments
have commenced under Section 2.1.2 of this Agreement, Executive may
petition the Board or the Plan Administrator to receive the unpaid
balance of the Normal Retirement Benefit, in lieu of installment
payments, in a present value lump sum. Such petition shall be
submitted to the Board, or the Plan Administrator, in writing not less
than 13 months prior to the date on which the Executive wishes to
receive the lump sum distribution.
2.1.2.2 Payment of Lump Sum. Subject to approval by the Board or
the Plan Administrator, the Company shall pay the lump sum to the
Executive within 30 days after the designated payment date requested
by the Executive, less any applicable taxes or withholding required by
state or federal law, and less a 7% penalty imposed by the Company for
the right to receive the Normal Retirement Benefit in a lump sum.
2.1.2.3 Calculation of Lump Sum Payment. Calculation of any lump
sum payable under this Section 2.1.2.1 shall be as follows:
Executive shall receive the greater of:
(1) the present value of the Normal Retirement
Benefit based upon 20 years of monthly
installment payments, which are to be calculated
commencing with the date of the first payment
received by the Executive under Section 2.1 of
this Agreement, less any monthly payments
already received by the Executive under Section
2.1 of this Agreement;
or
(2) the present value of the Normal Retirement
Benefit based upon a lifetime benefit, which is
to be calculated commencing with the date of the
first payment received by Executive under
Section 2.1, and ending on a date in the future
that is calculated to be the Executive's
actuarial life expectancy, plus five years, less
any monthly payments already received by the
Executive under Section 2.4.2 of this Agreement.
The Executive's actuarial life expectancy shall
be determined
3
2.1.3 Benefit Increases. Commencing on the first anniversary of
the first benefit payment, and continuing on each subsequent
anniversary, the Company's Board of Directors, in its sole discretion,
may increase the benefit.
2.2 Early Termination Benefit. Upon Early Termination, the Company shall
pay to the Executive the benefit described in this Section 2.2 in lieu of any
other benefit under this Agreement.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is
the Early Termination Lump Sum set forth in Schedule A for the Plan
Year ending immediately prior to the Early Termination Date,
determined by vesting the Executive in the Accrual Balance. Any
increase in the annual benefit under Section 2.1 shall require the
recalculation of this benefit as set forth in Schedule A.
2.2.2 Payment of Benefit. The Company shall pay the benefit to
the Executive in a lump sum within 60 days following Termination of
Employment.
2.3 Disability Benefit. If the Executive terminates employment due to
Disability prior to Normal Retirement Age, the Company shall pay to the
Executive the benefit described in this Section 2.3 in lieu of any other benefit
under this Agreement.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is
the Disability Lump Sum set forth in Schedule A for the Plan Year
ending immediately prior to the date in which the Termination of
Employment occurs, plus any pro rata amount for the Plan Year in which
Termination of Employment occurs. This benefit is determined by
vesting the Executive in the Accrual Balance. Any increase in the
annual benefit under Section 2.1 shall require the recalculation of
this benefit amount as set forth in Schedule A.
2.3.2 Payment of Benefit. The Company shall pay the benefit to
the Executive in a lump sum within 60 days following Termination of
Employment.
2.4 Change of Control Benefit. Upon a Change of Control, the Company shall
pay to the Executive the benefit described in this Section 2.4 in lieu of any
other benefit under this Agreement.
2.4.1 Amount of Benefit. The benefit under this Section 2.4 is
the Change of Control Lump Sum set forth in Schedule A for the Plan
Year ending immediately prior to the date in which Termination of
Employment occurs, determined by vesting the Executive in the present
value of the stream of payments of the Normal Retirement Benefit
described in Section 2.1. Any increase in the annual benefit under
Section 2.1 shall require the recalculation of this benefit as set
forth in Schedule A.
4
2.4.2 Payment of Benefit. The company shall pay the benefit to
the Executive in a lump sum within 60 days following Termination of
Employment.
2.4.3 How Change of Control Benefit Determined. In determining
the Change of Control benefit under this Section 2.4, Executive shall
receive a lump sum payment which is calculated to be the greater of:
(1) the present value of the Normal Retirement Benefit
based upon 20 years of monthly installment payments, which
are to be calculated commencing with Executive's Normal
Retirement Age and ending 20 years later;
or
(2) the present value of the Normal Retirement Benefit
based upon a lifetime benefit, which is to be calculated
commencing with Executive's Normal Retirement Age and
ending on a date in the future that is calculated to be
the Executive's actuarial life expectancy, plus five
years. The Executive's actuarial life expectancy shall be
determined by reference to any standard actuarial table
agreed to by the Company and the Executive.
Article 3
Death Benefits
3.1 Death During Active Service. If the Executive dies while in the
active service of the Company, the Company shall pay to the Executive's
beneficiary the benefit described in this Section 3.1. This benefit shall be
paid in lieu of the Lifetime Benefits of Article 2.
3.1.1 Amount of Benefit. The annual benefit under this Section 3.1
is the Normal Retirement Benefit amount described in Section 2.1.1.
3.1.2 Payment of Benefit. The Company shall pay the annual benefit
to the Executive's beneficiary in 12 equal monthly installments
commencing with the month following the Executive's death. The Company
shall pay this annual benefit to the Executive's beneficiary for 10
years.
3.2 Death During Benefit Period. If the Executive dies after the benefit
payments have commenced under this Agreement but before receiving all such
payments, the Company shall pay the remaining benefits to the Executive's
beneficiary at the same time and in the same amounts that would have been paid
to the Executive had the Executive survived.
3.3 Death Following Termination of Employment But Before Benefits
Commence. If the Executive is entitled to benefits under this Agreement, but
dies prior to receiving said benefits, the Company shall pay to the Executive's
beneficiary the same benefits, in the same manner, that would have been paid to
the Executive had the Executive survived, however, said benefit payments will
commence upon the Executive's death.
5
Article 4
Beneficiaries
4.1 Beneficiary Designations. The Executive shall designate a beneficiary
by filing a written designation with the Company. The Executive may revoke or
modify the designation at any time by filing a new designation. However,
designations will only be effective if signed by the Executive and received by
the Company during the Executive's lifetime. The Executive's beneficiary
designation shall be deemed automatically revoked if the beneficiary predeceases
the Executive, or if the Executive names a spouse as beneficiary and the
marriage is subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a person
declared incompetent, or to a person incapable of handling the disposition of
his or her property, the Company may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incompetent
person or incapable person. The Company may require proof of incapacity,
minority or guardianship as it may deem appropriate prior to distribution of the
benefit. Such distribution shall completely discharge the Company from all
liability with respect to such benefit.
Article 5
General Limitations
5.1 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement if the Company terminates the Executive's employment for any act of
embezzlement, fraud or dishonesty.
5.2 Suicide or Misstatement. No benefits shall be payable if the
Executive commits suicide within two years after the date of this Agreement, or
if the Executive has made any material misstatement of fact on any application
for life insurance purchased by the Company.
Article 6
Claims and Review Procedures
6.1 Claims Procedure. Any person or entity who has not received benefits
under the Plan that he or she believes should be paid ("claimant") shall make a
claim for such benefits as follows:
6.1.1 Initiation - Written Claim. The claimant initiates a claim
by submitting to the Company a written claim for the benefits.
6
6.1.2 Timing of Company Response. The Company shall respond to
such claimant within 90 days after receiving the claim. If the Company
determines that special circumstances require additional time for
processing the claim, the Company can extend the response period by an
additional 90 days by notifying the claimant in writing, prior to the end
of the initial 90-day period, that an additional period is required. The
notice of extension must set forth the special circumstances and the date
by which the Company expects to render its decision.
6.1.3 Notice of Decision. If the Company denies part or all of the
claim, the Company shall notify the claimant in writing of such denial.
The Company shall write the notification in a manner calculated to be
understood by the claimant. The notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of the Plan on which the
denial is based,
(c) A description of any additional information or material necessary
for the claimant to perfect the claim and an explanation of why
it is needed,
(d) An explanation of the Plan's review procedures and the time
limits applicable to such procedures, and (e) A statement of the
claimant's right to bring a civil action under ERISA Section
502(a) following an adverse benefit determination on review.
6.2 Review Procedure. If the Company denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the Company of
the denial, as follows:
6.2.1 Initiation - Written Request. To initiate the review, the
claimant, within 60 days after receiving the Company's notice of denial,
must file with the Company a written request for review.
6.2.2 Additional Submissions - Information Access. The claimant
shall then have the opportunity to submit written comments, documents,
records and other information relating to the claim. The Company shall
also provide the claimant, upon request and free of charge, reasonable
access to, and copies of, all documents, records and other information
relevant (as defined in applicable ERISA regulations) to the claimant's
claim for benefits.
6.2.3 Considerations on Review. In considering the review, the
Company shall take into account all materials and information the
claimant submits relating to the claim, without regard to whether such
information was submitted or considered in the initial benefit
determination.
6.2.4 Timing of Company Response. The Company shall respond in
writing to such claimant within 60 days after receiving the request for
review. If the Company determines that special circumstances require
additional time for processing the claim, the Company can extend the
response period by an additional 60 days by notifying the claimant in
writing, prior to the end of the initial 60-day period, that an
additional period is required. The notice of extension must set forth the
special circumstances and the date by which the Company expects to render
its decision.
7
6.2.5 Notice of Decision. The Company shall notify the claimant in
writing of its decision on review. The Company shall write the
notification in a manner calculated to be understood by the claimant. The
notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of the Plan on which
the denial is based,
(c) A statement that the claimant is entitled to receive, upon
request and free of charge, reasonable access to, and copies
of, all documents, records and other information relevant
(as defined in applicable ERISA regulations) to the
claimant's claim for benefits, and
(d) A statement of the claimant's right to bring a civil action
under ERISA Section 502(a).
Article 7
Amendments and Termination
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive.
Article 8
Miscellaneous
8.1 Binding Effect. This Agreement shall bind the Executive and the
Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 No Guarantee of Employment. This Agreement is not an employment policy
or contract. It does not give the Executive the right to remain an employee of
the Company, nor does it interfere with the Company's right to discharge the
Executive. It also does not require the Executive to remain an employee nor
interfere with the Executive's right to terminate employment at any time.
8.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
8.4 Tax Withholding. The Company shall withhold any taxes that are required
to be withheld from the benefits provided under this Agreement.
8.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of California, except to the extent preempted
by the laws of the United States of America.
8
8.6 Unfunded Arrangement. The Executive and beneficiary are general
unsecured creditors of the Company for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Company to pay such
benefits. The rights to benefits are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors. Any insurance on the Executive's life is a general
asset of the Company to which the Executive and beneficiary have no preferred or
secured claim.
8.7 Recovery of Estate Taxes. If the Executive's gross estate for federal
estate tax purposes includes any amount determined by reference to and on
account of this Agreement, and if the beneficiary is other than the Executive's
estate, then the Executive's estate shall be entitled to recover from the
beneficiary receiving such benefit under the terms of the Agreement, an amount
by which the total estate tax due by the Executive's estate, exceeds the total
estate tax which would have been payable if the value of such benefit had not
been included in the Executive's gross estate. If there is more than one person
receiving such benefit, the right of recovery shall be against each such person.
In the event the beneficiary has a liability hereunder, the beneficiary may
petition the Company for a lump sum payment in an amount not to exceed the
beneficiary's liability hereunder.
8.8 Entire Agreement. This Agreement constitutes the entire agreement between
the Company and the Executive as to the subject matter hereof. No rights are
granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.
8.9 Named Fiduciary. For purposes of the Employee Retirement Income
Security Act of 1974, if applicable, the Company shall be the named fiduciary
and plan administrator under the Agreement. The named fiduciary may delegate to
others certain aspects of the management and operation responsibilities of the
plan including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
IN WITNESS WHEREOF, the Executive and a duly authorized Company officer
consent to this Agreement.
EXECUTIVE: COMPANY:
TEMECULA VALLEY BANK, N.A.
/s/ Xxxxxx X. Xxxx By /s/ Xxxxxxx X. Xxxxxxxx
Title President/CEO
