EXHIBIT 10.13
Second Amendment to
Executive Employment Agreement
between
N. Douglas Mills and Valley Bank
SECOND AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
This Second Amendment to Executive Employment Agreement is made this ____
day of ______ 199_, between Valley Bank, (hereinafter the "Corporation") and N.
Douglas Mills (hereinafter the "Executive").
RECITALS
WHEREAS, the Corporation has entered into an Executive Employment Agreement
with Executive dated September 26, 1996, amended October 30, 1997; and
WHEREAS, the Corporation and Pacific Community Banking Group, a California
corporation ("PCBG") entered into that certain First Restatement of Agreement
and Plan of Reorganization dated as of _______________, 1999 (the
"Reorganization Agreement") whereby the Corporation will be acquired and become
a wholly-owned subsidiary of PCBG; and
WHEREAS, Executive is currently a shareholder of the Corporation, and
President, Chief Executive Officer and a Director of the Corporation; and
WHEREAS, following the consummation of the acquisition of the Corporation
by PCBG, Executive desires to be retained by the Corporation in accordance with
this amended Executive Employment Agreement; and
WHEREAS, unless otherwise provided in this Agreement, capitalized terms
shall have the meanings given to them in the Reorganization Agreement.
NOW THEREFORE, in consideration of the mutual representations, warranties and
covenants, agreements and conditions contained herein and in the Reorganization
Agreement, and intending to be legally bound hereby, the Corporation and
Executive agree as follows:
1. Paragraph 1.1 is deleted in its entirety, and the following is
substituted, which shall read as follows:
"EMPLOYMENT - The Corporation shall employ the Executive in
an executive position with the Corporation as determined by
the Corporation with such duties and responsibilities as may
be assigned to Executive from time to time by the
Corporation. Executive agrees to serve in such capacity.
Executive shall be compensated at the annual rate of
$160,000, payable in amounts
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EXHIBIT 2.1(d)(i)(a)
consistent with regular payroll periods of Corporation. This
Executive Employment Agreement shall not generally be assignable or
transferable without the consent of Executive; provided, however,
that Executive hereby consents to the assignment and assumption of
this Executive Employment Agreement by The Bank of Hemet, Pacific
Community Banking Group or their successors or assigns, so long as
such successor or assignee has sufficient financial resources and
capabilities to honor the terms and conditions of this Executive
Employment Agreement."
2. Paragraph 1.3 is deleted in its entirety, and a new paragraph 1.3 is
substituted, which shall read as follows:
"TERM OF AGREEMENT - The term of this Agreement shall be for
not less than one year from the date of consummation of the
Reorganization Date, but shall automatically renew for
successive one year periods thereafter unless terminated as
provided herein. If this Executive Employment Agreement is
terminated by the Corporation, the Consulting Agreement
attached hereto as EXHIBIT "A," and which is hereby executed
and agreed to by the Corporation and Executive (the
"Consulting Agreement"), shall become effective as of such
date of termination. If this Executive Employment Agreement
is terminated by Executive, the Consulting Agreement shall
become effective as of the date of such termination by
Executive or one year from the date of consummation of the
Reorganization Agreement, whichever is later."
3. Paragraph 2.3 is deleted in its entirety, and a new paragraph 2.3 is
substituted, which shall read as follows:
"CONSUMMATION OF REORGANIZATION AGREEMENT - Upon
consummation of the Reorganization Agreement, the
Corporation shall pay Executive the sum of $393,992."
4. Paragraph 2.5 is added, which shall read as follows:
"TERMINATION OF EMPLOYMENT BY CORPORATION OTHER THAN CAUSE
- The Corporation reserves the right to terminate the
employment of Executive at any time, without cause, upon
notice to Executive, prior to the expiration of the Term of
the Agreement in Section 1.3. Such termination
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shall be effective upon the Corporation giving notice to
Executive. In the event the employment of Executive shall be
terminated by the Corporation other than for cause or
disability, the Corporation and Executive shall then enter
into the Consulting Agreement attached hereto as EXHIBIT "A."
In the event the employment of Executive shall be terminated
by the Corporation other than for cause or disability, the
Consulting Agreement shall become effective as of the date
of such termination as provided in paragraph 1.3 above."
5. Paragraph 3.2 is added, which shall read as follows:
"SALARY CONTINUATION AGREEMENT - Executive and Corporation
agree that Pacific Community Banking Group will not become
liable for any obligations under Executive's Salary
Continuation Agreement dated October 19, 1995, as amended
October 30, 1997, ("Salary Continuation Agreement") unless
Pacific Community Banking Group becomes assignee or
transferee of the Salary Continuation Agreement. Executive
and Corporation hereby further agree that, notwithstanding
the consummation of the Reorganization Agreement, Section
10.1 of the Salary Continuation Agreement will not require
the Corporation to accelerate payments due to Executive
thereunder until expiration or termination of this Executive
Employment Agreement, at which time such payments shall then
accelerate and the Consulting Agreement will become
effective."
6. Paragraph 4.1, as amended, is hereby deleted in its entirety.
Except as amended hereby, Executive Employment Agreement between Mr. N.
Douglas Mills and the Corporation dated September 20, 1996, amended October 30,
1997, shall remain in full force and effect.
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IN WITNESS WHEREOF, this Second Amendment has been executed as of the date
first hereinabove written.
EXECUTIVE
_____________________________________
N. Douglas Mills
VALLEY BANK
BY: __________________________________
Marion V. Ashley
Chairman of the Board
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CONSULTING AGREEMENT
I. PARTIES
The parties to this Consulting Agreement (the "Agreement") are
VALLEY BANK, a California banking corporation (the "Bank"), and N. Douglas
Mills, an individual ("Consultant").
II. RECITALS
Consultant is possessed of experience and talents in the
management field which will be useful to the Bank in the conduct of its
commercial banking enterprise (the "Business").
III. HIRING
Upon the terms and conditions set forth herein, the Bank hereby
hires Consultant as an independent contractor of the Bank, not as an employee,
and Consultant agrees to provide services to Bank as described herein.
IV. DUTIES OF CONSULTANT
Consultant agrees to provide business development, customer
retention, customer development, and management consulting services as requested
by the Chairman and Chief Executive Officer of the Bank. Consultant agrees to
devote such time as is reasonably required for the performance of these
services, including but not limited to attendance at Board meetings and such
committee meetings as requested by the Board of Directors or the Chairman and
Chief Executive Officer, review of such credit files as may be requested by the
Chairman and Chief Executive Officer, develop collection strategies for such
loans as may be requested by the Chairman and Chief Executive Officer, work with
the officers of the Bank to develop and implement customer retention and
business development strategies as requested by the Chairman and Chief Executive
Officer, participate in individual consultations with the officers of the Bank
as required by the Chairman and Chief Executive Officer, join any advisory board
of the Bank, attend all meetings of such advisory board, and assist the Bank in
increasing the size of the advisory board with qualified individuals, and
provide other services as requested from time to time by the Chairman of the
Board of the Bank from time to time. Consultant agrees that, to the best of his
ability and experience, he will at all times loyally and conscientiously perform
all of the duties and obligations either expressly or implicitly required of him
by the terms of this Agreement.
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EXHIBIT A
V. TERM AND COMMENCEMENT DATE
Subject to "IX. TERMINATION" below, the term of this Agreement
shall commence on _________, ____ ("Commencement Date") as provided in the
Executive Employment Agreement and will terminate on ___________, ____ (the
"Term"), a term of five (5) years, subject to renewal upon such terms and
conditions as shall be agreed upon by the Board and Consultant.
VI. DEATH
If Consultant shall die during the Term, Bank will continue to
make such monthly payments to the Consultant's surviving spouse for the
remaining Term as provided in Paragraph V above. If the Executive is not
survived by any spouse, said payments shall be made to the duly qualified
personal representative, executor or administer of his estate.
VII. COMPENSATION
Bank agrees to pay Consultant and Consultant agrees to accept as
payment for his services to be performed in accordance with this Agreement a
consulting fee in the amount of Four Thousand Six Hundred Fifty Dollars ($4,650)
per month, or $55,800 per year ("Base Annual Compensation") commencing on the
Commencement Date. Bank agrees to pay Consultant and Consultant agrees to
accept the consulting fee under this consulting arrangement with the Bank as
payment for his services to be performed in accordance with this Agreement.
VIII. TIME
Consultant shall be required to devote such time as is necessary
to the performance of his duties as Consultant of Bank. Consultant may, without
the prior written consent of Bank, render services directly or indirectly, of a
business or commercial nature, to any other person or organization, provided
such other person or organization does not compete, directly or indirectly with
the Business of the Bank.
IX. TERMINATION
AUTOMATIC TERMINATION. This Agreement automatically terminates
if Bank is closed by or taken over by the California Commissioner of Financial
Institutions, the Federal Deposit Insurance Corporation or any other supervisory
authority; but in no event shall Consultant's obligations under this Agreement
terminate as a result of a sale of assets, acquisition, merger or other like
transaction involving Bank, whether or not Bank is the surviving or resulting
bank following such a transaction.
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X. OWNERSHIP OF CUSTOMER RECORDS
All records of the accounts of customers, and any other records
and books relating in any manner whatsoever to the customers of the Bank,
whether prepared by Consultant or otherwise coming into his possession, shall be
the exclusive property of Bank regardless of who actually purchased the original
book or record. All such books and records shall be immediately returned to the
Bank by Consultant upon the termination of this Agreement.
XI. CONFIDENTIAL INFORMATION
Without the prior written permission of the Bank in each case,
Consultant shall not publish, disclose or make available to any other person,
firm or corporation, either during or after the termination of this Agreement,
any confidential information which Consultant may obtain during the Employment
Period, or which Consultant may create prior to the end of the Term relating to
the business of the Bank, or to the business of any customer or supplier of any
of them; provided, however, Consultant may use such information during the Term
for the benefit of the Bank. Prior to or at the termination of this Agreement,
Consultant shall return all documents, files, notes, writings and other tangible
evidence of such confidential information to the Bank.
XII. COVENANT NOT TO SOLICIT CUSTOMERS OR EMPLOYEES
Consultant agrees that for a period of twelve (12) months
following the termination of this consulting agreement hereunder, consultant
will not solicit the banking business of any customer with whom the Bank had
done business during the preceding one year period. Consultant further agrees
not to solicit the services of any officer or employee of the Bank during such
twelve (12) month period.
XIII. MISCELLANEOUS
A. ASSIGNMENT AND MODIFICATION. This Agreement and the rights
and duties hereunder may not be assigned by any party hereto without the prior
written consent of the other and the parties expressly agree that any attempt to
assign the rights of any party hereunder without such consent will be null and
void.
B. FURTHER ASSURANCE. From time to time each party will
execute and deliver such further instruments and will take such other action as
any other party reasonably may request in order to discharge and perform their
obligations and agreements hereunder.
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C. FORM OF DOCUMENTS. All instruments, certificates, and other
documents to be executed and delivered under this Agreement by any party to the
other party shall be in a form satisfactory to the other party.
D. SUCCESSORS. This Agreement shall be binding upon, and shall
inure to the benefit of, the successors and assigns of the parties.
E. ENTIRE AGREEMENT. Except as provided herein, this Agreement
is the entire agreement between the parties, and all prior negotiations,
representations, or agreements between the parties are merged into this
Agreement.
F. GOVERNING LAW. This Agreement shall be construed in
accordance with California law.
G. 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.
H. 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 thereof.
I. CALENDAR DAYS; CLOSE OF BUSINESS. Unless the context
otherwise requires, 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.
J. 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 thereof, shall not be affected thereby.
K. ATTORNEYS' FEES. In the event that any party shall bring an
action in connection with the performance, breach, or interpretation hereof,
then the prevailing party in such action as determined by the court having
jurisdiction, shall be entitled to recover from the losing party in such action,
as determined by the courts having jurisdiction, all reasonable attorney's fees,
court costs, costs of investigation and other costs reasonably related to such
litigation, in such amounts as may be determined in the discretion of the court
having jurisdiction.
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XIV. EXECUTION
This Agreement is executed at Moreno Valley, California, to be
effective as of the Commencement Date.
BANK: VALLEY BANK
a California banking corporation
BY: _________________________________
E. Lynn Caswell
Chairman of the Board
CONSULTANT: ________________________________
N. Douglas Mills
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