Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and effective as of June 1,
2002 between TEMECULA VALLEY BANK, N.A., a national banking association ("Bank")
and XXXXX X. XXXXXXX ("Executive").
RECITAL
Bank desires that Executive be employed as Executive Vice President/Real
Estate 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 (the "Term") commencing June 1,
2002 ("Commencement Date"), and terminating on such date and upon such terms as
provided for Section 4 hereof.
2. DUTIES OF EXECUTIVE
2.1. Duties. Executive shall perform the duties of Executive Vice
President/Real Estate Manager of Bank, which shall include oversight and
management of all real estate lending activities 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. Executive shall report directly to the
Chief Executive Officer of 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 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 indirectly, 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 $150,000
("Base Salary") 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.
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.
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 20,000 shares of
Bank common stock in accordance with the terms of Bank's employee stock option
plan and agreements.
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;
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(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 that portion of his
Base Salary due 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 six (6) months of Executive's Base Salary (as in effect
immediately prior to termination) payable in equal installments over the next
six (6) months in accordance with Bank's normal payroll practices.
5. INDEMNITY. The parties recognize that a person or entity can attempt to
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.
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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.
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: Xxxxx X. Xxxxxxx
Facsimile: (_____)__________
With a copy to: Xxxxxxxxx X. Xxxxx, Esq.
XxXxxxxxx, 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.
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 or the
text otherwise specifies, 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.
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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 (or such opportunity
has been provided and declined) 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.
IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
Bank: TEMECULA VALLEY BANK
By: /S/XXXXXXX X. XXXXXXXX
President and Chief Executive Officer
Executive:
/S/XXXXX X. XXXXXXX
