SECOND AMENDMENT TO THE JAMES W. ANDREWS EMPLOYMENT AGREEMENT
EXHIBIT
NO. 10.53
SECOND
AMENDMENT TO THE
XXXXX
X. XXXXXXX
This Second Amendment (“Second Amendment”) to that
certain Employment Agreement dated June 1, 2002, as amended by that certain
First Amendment dated November 24, 2004 (collectively, “Original Agreement”), is
entered into as of March 10, 2008, and shall be deemed effective as of July 1,
2007, by and between Xxxxx X. Xxxxxxx, an individual (“Executive”), and Temecula
Valley Bank (“Bank”).
R E C I T A L
Bank and Executive wish to amend the
Original Agreement as provided in this Second Amendment.
A G R E E M E N T
NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants and agreements contained herein, the parties
hereby agree and consent to the amendment of the Original Agreement, effective
on the date hereof, as follows:
1. Section
3.4 of the Original Agreement is hereby deleted and replaced with the
following:
“3.4 Group Medical and Other
Benefits. Bank shall provide for Executive’s participation in
the medical and other benefit plans offered to other similarly titled employees
of Bank.”
2. A new
Section 3.9 is hereby added to the Original Agreement as follows:
“3.9 Bonus.
For each
year within the Term beginning January 1, 2006, Executive shall be entitled to
an annual Incentive Bonus equal to 2.5% of Pre-Tax Profit (as defined below) of
the real estate industries group (the “Group”), if the following
conditions are met: 1) Bank receives a satisfactory rating on its
annual safety and soundness examination; and 2) Bank’s loan portfolio is rated
satisfactory in its annual safety and soundness examination. “Pre-Tax Profit” shall mean the
net income of the Group after the payment of all bonus amounts paid by Bank to
all employees within the Group and before the payment of taxes. The Incentive
Bonus shall be paid on or about March 15 of the calendar year following the
calendar year in which it was earned.”
3. Section 5
of the Original Agreement is hereby deleted and replaced with the
following:
“5. Restriction on Timing of
Distributions.
Notwithstanding
any provision of this Agreement to the contrary, distributions to Executive may
not commence earlier than six (6) months after the date of a Separation from
Service (as defined below) (or, if earlier, the date of death of Executive) if,
pursuant to Internal Revenue Code Section 409A, as may be amended from time to
time, Executive is considered a “specified employee” (under Internal Revenue
Code Section 416(i)) of Bank if any stock of Bank or Company is publicly traded
on an established securities market, or otherwise. In the event a distribution
is delayed pursuant to this Section, the originally scheduled distribution shall
be delayed for six months, and shall commence instead on
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the first
day of the seventh month following Separation from Service. If payments are
scheduled to be made in installments, the first six months of installment
payments shall be delayed, aggregated and paid instead on the first day of the
seventh month, after which all installment payments shall be made on their
regular schedule. If payment is scheduled to be made in a lump sum, the lump sum
payment shall be delayed for six months and instead be made on the first day of
the seventh month. “Separation
from Service” shall mean that Executive has experienced a termination of
employment from Bank which will be deemed to have occurred where the facts and
circumstances indicate that Executive and Bank reasonably anticipated that
Executive would permanently reduce his level of bona fide service to Bank to a
level not to exceed 25% of the average level of bona fide services provided to
Bank in the immediately preceding 12 months.”
3. Continued
Effect. Except as otherwise expressly provided herein, the
Original Agreement will continue in full force and effect, in accordance with
its terms.
4. Miscellaneous. This
Second Amendment will be governed in all respects by the laws of the State of
California as such laws are applied to agreements between California residents
entered into and to be performed entirely within California. This Second
Amendment constitutes the full and entire understanding and agreement between
the parties with regard to the subjects hereof and supersedes all prior written
and oral agreements, representations and commitments, if any, between the
parties with respect to such subjects. This Second Amendment may be executed in
any number of counterparts, each of which will be an original, but all of which
together will constitute one instrument.
IN WITNESS WHEREOF, the parties hereto
have executed this Second Amendment as of the effective date established in the
first paragraph of this Second Amendment.
/s/ Xxxxx X.
Xxxxxxx TEMECULA VALLEY BANK
XXXXX X.
XXXXXXX, an individual a California state-chartered bank
By: /s/ Xxxxxxx X.
Xxxxxxxx
Xxxxxxx
X. Xxxxxxxx
President
and Chief Executive Officer
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