Exhibit 10.13
Prepared 12-6-02
FIRST AMENDMENT
TO THE TEMECULA VALLEY BANK, N.A.
AMENDED AND RESTATED SALARY CONTINUATION AGREEMENT
THIS AMENDMENT is adopted this 31st day of December, 2002, by and between
TEMECULA VALLEY BANK, N.A., a national banking association located in Temecula,
California (the "Company") and XXXXXXX X. XXXXXXXX (the "Executive"), amending
the TEMECULA VALLEY BANK, N.A. AMENDED AND RESTATED SALARY CONTINUATION
AGREEMENT dated January 1, 2002 (the "Agreement").
The undersigned hereby amend, in part, said Agreement to increase the
retirement benefit according to the terms of the Agreement. Therefore, the
following revisions shall now be made:
Sections 2.1.1 and 2.2.2 of the Agreement shall be deleted in their
entirety and replaced by Sections 2.1.1 and 2.2.2 below.
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1 is
$125,000 (One Hundred Twenty-five 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 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.
Schedule A of the Agreement shall be deleted in its entirety and replaced
by the attached Schedule A.
IN WITNESS WHEREOF, the Executive and a duly authorized Company officer
consent to this-First Amendment to the Agreement.
EXECUTIVE
/S/Xxxxxxx X. Xxxxxxxx
COMPANY
TEMECULA VALLEY BANK N.A.
BY /S/
TEMECULA VALLEY BANK, N.A.
AMENDED AND RESTATED SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is adopted this 1st day of January , 2002, by and between
the TEMECULA VALLEY BANK, N.A., a national banking association located in
Temecula, California (the "Company") and XXXXXXX X. XXXXXXXX (the "Executive"),
amending, restating and replacing the Amended and Restated Temecula Valley Bank,
N.A., Salary Continuation Agreement dated September 3, 1999 (distinguished by
the $75,000 annual benefit set forth in Section 2.1.1 and 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. For clarification, the
September 3, 1999, agreement now being amended and restated, 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
President/Chief Executive Officer/Chairman of the Board; 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 that there has been a Termination of
Employment of the Executive within twelve (12) months following: (1) a tender
offer made and consummated for the ownership of 25% or more of the outstanding
voting securities of the Company; (ii) a merger or consolidation of the Company
with another bank or corporation and as a result of such merger or consolidation
less than 75% of the outstanding voting securities of the surviving or resulting
bank or shareholders of the Company, other than affiliates (within the meaning
of the Securities Exchange Act of 1934) of any party to such merger or
consolidation, as the same shall have existed immediately prior to such merger
or consolidation, (iii) a sale of substantially all of the Company's assets to
another bank or corporation which is not a wholly owned subsidiary; or (iv) an
acquisition of the Company by a person, within the meaning of Section 3(a)(9) or
of Section 13(d)(3) (as in effect on the date hereof) of the Securities Exchange
Act of 1934, of 25% or more of the outstanding voting securities of the Company
(whether directly, indirectly, beneficially or of record). For purposes hereof,
ownership of voting securities shall take into account and shall include
ownership as determined by applying the provisions of Rule 13d-3(d)(l)(I) (as in
effect on the date hereof) pursuant to the Securities Exchange Act of 1934.
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 65th 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.
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1 is
$100,000 (One Hundred 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 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) 15 years; or b)
the Executive's lifetime.
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.
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.
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 15 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.
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.
6.1.2 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.
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.
7
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-Transfer ability. 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.
8.6 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
/S/Xxxxxxx X. Xxxxxxxx
COMPANY
TEMECULA VALLEY BANK N.A.
BY /S/
title
Prepared 11-6-01
FIRST AMENDMENT
TO THE
AMENDED AND RESTATED
TEMECULA VALLEY BANK, N.A.
SALARY CONTINUATION AGREEMENT
FOR XXXXXXX X. XXXXXXXX
THIS AMENDMENT is adopted this 6th day of November , 2001, by and between
TEMECULA VALLEY BANK, N.A., a national banking association located in Temecula,
California (the "Company") and XXXXXXX X. XXXXXXXX (the "Executive"), amending
the AMENDED AND RESTATED TEMECULA VALLEY BANK, N.A. SALARY CONTINUATION
AGREEMENT dated September 3, 1999, in which the annual benefit set forth in
Section 2.1.1 is $75,000 and the payment provisions under Sections 2.2, 2.3 and
2.4 provide for a lump sum payment and which replaced any like agreements (the
"Agreement").
The undersigned hereby amend, in part, said Agreement to make corrections
to Sections 1.1, 1.6 and 1.9. Therefore, the following revisions shall now be
made:
Section LI of the Agreement shall be deleted in its entirety and replaced
by Section 1.1 below,
1.1 "Change of Control" means that there has been a Termination of
Employment of the Executive within twelve (12) months following: (1) a tender
offer made and consummated for the ownership of 25% or more of the outstanding
voting securities of the Company; (ii) a merger or consolidation of the Company
with another bank or corporation and as a result of such merger or consolidation
less than 75% of the outstanding voting securities of the surviving or resulting
bank or shareholders of the Company, other than affiliates (within the meaning
of the Securities Exchange Act of 1934) of any party to such merger or
consolidation, as the same shall have existed immediately prior to such merger
or consolidation, (iii) a sale of substantially all of the Company's assets to
another bank or corporation which is not a wholly owned subsidiary; or (iv) an
acquisition of the Company by a person, within the meaning of Section 3(a)(9) or
of Section 13(d)(3) (as in effect on the date hereof) of the Securities Exchange
Act of 1934, of 25% or more of the outstanding voting securities of the Company
(whether directly, indirectly, beneficially or of record). For purposes hereof,
ownership of voting securities shall take into account and shall include
ownership as determined by applying the provisions of Rule 13d-3(d)(l)(I) (as in
effect on the date hereof) pursuant to the Securities Exchange Act of 1934.
Section 1.6 of the Agreement shall be deleted in its entirety and replaced
by Section 1.6 below.
1.6 "Effective Date" means November 24, 1997.
Section 1.9 of the Agreement shall be deleted in its entirety and replaced
by Section 1.9 below.
1.9 "Plan Year" means a twelve-month period commencing on September 3 and
ending on September 2 of each year. The initial Plan Year shall commence on the
effective date of this Agreement.
IN WITNESS OF THE ABOVE, the Executive and the Company hereby consent to
this First Amendment.
EXECUTIVE
/S/Xxxxxxx X. Xxxxxxxx
COMPANY
TEMECULA VALLEY BANK N.A.
BY /S/
title
