TEMECULA VALLEY BANK
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT is made this 30th day of September 2004, by and between
TEMECULA VALLEY BANK, a nationally-chartered commercial bank, located in
Temecula, California (the "Company"), and XXXXXXX X. XXXXXXXX (the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to provide to the Executive a deferred compensation
opportunity. The Company will pay the Executive's benefits from the Company's
general assets.
AGREEMENT
The Executive and the Company agree 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.
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 "Compensation" means the salary and bonus that would be paid to the
Executive during a Plan Year, absent deferrals, less FICA taxes associated with
such salary and bonus.
1.4 "Deferral Account" means the Company's accounting of the Executive's
accumulated Deferrals plus accrued interest.
1.5 "Deferrals" means the amount of the Executive's Compensation, which the
Executive elects to defer according to this Agreement.
1.6 "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.
1.7 "Early Termination" means Termination of Employment before Normal
Retirement Age for reasons other than death, Disability, Termination for Cause
or within 12 months following a Change of Control.
1.8 "Effective Date" means December 30, 2003.
1.9 "Election Form" means the Form attached as Exhibit 1.
1.10 "Normal Retirement Age" means the Executive's seventieth (70th)
birthday.
1.11 "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.
1.12 "Termination of Employment" means that the Executive ceases to be
employed by the Company for any reason, voluntary or involuntary, other than by
reason of a leave of absence approved by the Company.
Article 2
Deferral Election
2.1 Initial Election. The Executive shall make an initial deferral election
under this Agreement by filing with the Company a signed Election Form within 30
days after the Effective Date of this Agreement. The Election Form shall set
forth the amount of Compensation to be deferred and shall be effective to defer
only Compensation earned after the date the Election Form is received by the
Company.
2.2 Election Changes
2.2.1 Generally. Upon the Company's approval, the Executive may
modify the amount of Compensation to be deferred annually by filing a new
Election Form with the Company within 45 days prior to the beginning of the
Plan Year in which the Compensation is to be deferred. The modified
deferral election shall not be effective until the Plan Year following the
year in which the subsequent Election Form is received and approved by the
Company.
2.2.2 Hardship. If an unforeseeable financial emergency arising from
the death of a family member, divorce, sickness, injury, catastrophe or
similar event outside the control of the Executive occurs, the Executive,
by written instructions to the Company, may reduce future deferrals under
this Agreement.
Article 3
Deferral Account
3.1 Establishing and Crediting. The Company shall establish a Deferral
Account on its books for the Executive and shall credit to the Deferral Account
the following amounts:
3.1.1 Deferrals. The Compensation deferred by the Executive as of the
time the Compensation would have otherwise been paid to the Executive.
3.1.2 Interest. At the end of each Plan Year under this Agreement and
immediately prior to the payment of any benefits, but only until
commencement of the benefit payments under this Agreement, unless otherwise
stated, interest is to be credited on the Deferral Account at an annual
rate equal to ten percent (10%), compounded monthly. After benefit payments
have commenced under this Plan, during any applicable installment period
interest shall be credited at an annual rate of ten percent (10%),
compounded monthly.
3.2 Statement of Accounts. The Company shall provide to the Executive,
within one hundred twenty (120) days after the end of each Plan Year, a
statement setting forth the Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a device for
measuring amounts to be paid under this Agreement. The Deferral Account is not a
trust fund of any kind. The Executive is a general unsecured creditor of the
Company for the payment of benefits. The benefits represent the mere Company
promise to pay such benefits. The Executive's rights are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by the Executive's creditors.
Article 4
Benefits During Lifetime
4.1 Normal Retirement Benefit. Upon the Normal Retirement Age, the Company
shall pay to the Executive the benefit described in this Section 4.1 in lieu of
any other benefit under this Agreement.
4.1.1 Amount of Benefit. The benefit under this Section 4.1 is the
Deferral Account balance at the Executive's Normal Retirement Age.
4.1.2 Payment of Benefit. The Company shall pay the benefit to the
Executive in twelve equal monthly installments, commencing on the first day
of the month following the Executive's Normal Retirement Age. The annual
benefit shall be paid to the Executive for twenty (20) years.
4.2 Early Termination Benefit. Upon Early Termination, the Company shall
pay to the Executive the benefit described in this Section 4.2 in lieu of any
other benefit under this Agreement.
4.2.1 Amount of Benefit. The benefit under this Section 4.2 is the
Deferral Account balance at the Executive's Termination of Employment
4.2.2 Payment of Benefit. The Company shall pay the benefit to the
Executive in twelve (12) equal monthly installments commencing on the first
day of the month following the Executive attaining Normal Retirement Age.
The annual benefit shall be paid to the Executive for ten (10) years.
4.3 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 4.3 in lieu of any other benefit
under this Agreement.
4.3.1 Amount of Benefit. The benefit under this Section 4.3 is the
Deferral Account balance at the Executive's Termination of Employment.
4.3.2 Payment of Benefit. The Company shall pay the benefit to the
Executive in twelve (12) equal monthly installments commencing on the first
day of the month following Termination of Employment. The annual benefit
shall be paid to the Executive for ten (10) years.
4.4 Change of Control Benefit. Upon a Change of Control, the Company shall
pay to the Executive the benefit described in this Section 4.4 in lieu of any
other benefit under this Agreement.
4.4.1 Amount of Benefit. The benefit under this Section 4.3 is the
Deferral Account balance at the Executive's Termination of Employment.
4.4.2 Payment of Benefit. The Company shall pay the benefit to the
Executive in a lump sum within ninety (90) days of a Change of Control.
4.5 Hardship Distribution. Upon the Board of Director's determination
(following petition by the Executive) that the Executive has suffered an
unforeseeable financial emergency as described in Section 2.2.2, the Company
shall distribute to the Executive all or a portion of the Deferral Account
balance as determined by the Company, but in no event shall the distribution be
greater than is necessary to relieve the financial hardship.
Article 5
Death Benefits
5.1 Death During Active Service. If the Executive dies while in the
employment of the Company, the Company shall pay to the Executive's beneficiary
the benefit described in this Section 5.1 in lieu of any other benefit under
this Agreement.
5.1.1 Amount of Benefit. The benefit under this Section 5.1 is one
hundred percent (100%) of the Deferral Account balance as of the date of
the Executive's death.
5.1.2 Payment of Benefit. The Company shall pay the benefit to the
Executive's beneficiary in a lump sum within ninety (90) days following the
Executive's death.
5.2 Death During Payment of a Benefit. If the Executive dies after any
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
they would have been paid to the Executive had the Executive survived.
5.3 Death After Termination of Employment But Before Benefit Payments
Commence. If the Executive is entitled to benefit payments under this Agreement,
but dies prior to the commencement of said benefit payments, the Company shall
pay the same benefit payments to the Executive's beneficiary that the Executive
was entitled to prior to death except that the benefit payments shall commence
on the first day of the month following the date of the Executive's death.
Article 6
Beneficiaries
6.1 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.
6.2 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 incompetence,
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 7
General Limitations
7.1 Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, the Company shall not pay any benefit under this Agreement that
is in excess of the Executive's Deferrals the interest earned on the Deferral
Account) if the Company terminates the Executive's employment for:
(a) Gross negligence or gross neglect of duties to the Company;
(b) Commission of a felony or of a gross misdemeanor involving moral
turpitude in connection with the Executive's employment with the Company;
or
(c) Fraud, disloyalty, dishonesty or willful violation of any law or
significant Company policy committed in connection with the Executive's
employment and resulting in an adverse effect on the Company.
The Executive's Deferrals shall be paid to the Executive in a manner to be
determined by the Company. No interest shall be credited to the Deferrals during
any applicable installment period.
7.2 Suicide or Misstatement. The Company shall not pay any benefit under
this Agreement exceeding the Deferral Account if the Executive commits suicide
within three years after the date of this Agreement. In addition, the Company
shall not pay a benefit under this Agreement exceeding the Deferral Account if
the Executive has made any material misstatement of fact on an employment
application or resume provided to the Company, or on any application for any
benefits provided by the Company to the Executive.
Article 8
Claims and Review Procedures
8.1 Claims Procedure. An Executive or beneficiary ("claimant") who has not
received benefits under the Plan that he or she believes should be paid shall
make a claim for such benefits as follows:
8.1.1 Initiation -- Written Claim. The claimant initiates a claim by
submitting to the Company a written claim for the benefits.
8.1.2 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.
8.1.3 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.
8.2 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:
8.2.1 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.
8.2.2 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.
8.2.3 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.
8.2.4 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.
8.2.5 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 9
Amendments and Termination
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive.
Notwithstanding the previous paragraph in this Article 9, the Company may
amend or terminate this Agreement at any time if, pursuant to legislative,
judicial or regulatory action, continuation of the Agreement would (i) cause
benefits to be taxable to the Executive prior to actual receipt, or (ii) result
in significant financial penalties or other significantly detrimental
ramifications to the Company (other than the financial impact of paying the
benefits). In no event shall this Agreement be terminated under this section
without payment to the Executive of the Deferral Account balance attributable to
the Executive's Deferrals and interest credited on such amounts.
Article 10
Miscellaneous
10.1 Binding Effect. This Agreement shall bind the Executive and the
Company and their beneficiaries, survivors, executors, administrators and
transferees.
10.2 No Guarantee of Employment. This Agreement is not a contract for
employment. 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.
10.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
10.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of California, except to the extent preempted by the laws
of the United States of America.
10.6 Unfunded Arrangement. The Executive and the Executive's 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 the Executive's
beneficiary have no preferred or secured claim.
10.7 Reorganization. The Company shall not merge or consolidate into or
with another company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm, or person agrees to assume and discharge the obligations of the Company
under this Agreement. Upon the occurrence of such event, the term "Company" as
used in this Agreement shall be deemed to refer to the successor or survivor
company.
10.8 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.
10.9 Administration. The Company shall have powers which are necessary to
administer this Agreement, including but not limited to:
(a) Interpreting the provisions of the Agreement;
(b) Establishing and revising the method of accounting for the
Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
10.10 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 this 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
have signed this Agreement.
Executive: Company:
Temecula Valley Bank
/s/ Xxxxxxx X. Xxxxxxxx By /s/ Xxxxxx X. Xxxxxxx
----------------------- ---------------------
Xxxxxxx X. Xxxxxxxx Title Executive Vice President/CFO
