EXHIBIT 10.31
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of January
4, 2005 and shall be deemed effective as of November 29, 2004 between TEMECULA
VALLEY BANK, N.A., a national banking association ("Bank") and WILLIAM H.
McGAUGHEY ("Executive").
R E C I T A L
Bank desires that Executive be employed as Executive Vice
President/Chief Operating Officer 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 ("Term") commencing November 29, 2004
("Commencement Date"), and terminating on such date and upon such terms as
provided for in Section 4 hereof.
2. DUTIES OF EXECUTIVE.
2.1. Duties. Executive shall perform the duties of Executive Vice
President/Chief Operating Officer of Bank, as assigned by Bank's Chief Executive
Officer, subject to the powers by law vested in the Board of Directors of Bank
and in Bank's Shareholder. 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 $200,000 during the Term
("Base Salary"), beginning with the Commencement Date, payable in equal
installments in accordance with Bank's normal payroll periods as in effect from
time to time. The Board of Directors shall also, from time to time, and at least
once each calendar year grant such additional "merit" increases, if any, in, the
Base Salary as are determined after review to be appropriate in the discretion
of the Board of Directors.
3.2. Bonus.
(a) For each year within the Term, Executive shall be entitled to an annual
Incentive Bonus, determined in accordance with this Section, if the Threshold
Test is met. The Threshold Test shall be deemed to have been met if: (i) Bank's
regular outside independent loan reviewer gives a favorable review of the
overall SBA loan quality of the Bank; and (ii) the latest report of supervisory
activity relative to Bank issued by the Bank's principal bank regulator rates
Bank operations no less than satisfactory. The annual Incentive Bonus shall be
the greater of: $100,000, or one and one-half percent (1.5%) of the pre-tax
profits of Bank. The Incentive Bonus shall be payable in January of the year
following completion of the year on which its is based, or as soon thereafter as
is practical after Bank's certified public accountants have delivered their
report on Bank's condition and results of operations for the year.
(b) As a signing bonus, Executive shall receive $15,000 per month, for five
months ($75,000 in the aggregate), payable for the first time on January 1, 2005
and on the first of each of the next four successive calendar months.
3.3. 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.
3.4. Equipment. Bank shall provide for Executive's use an automobile, the
selection of which shall be within the discretion of the Chief Executive
Officer. 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.
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3.5. 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. Bank will reimburse Executive for any
COBRA costs incurred in maintaining insurance coverage between the Commencement
Date and the effective date of coverage under the Bank's medical and other
benefit plans. Executive will become eligible to participate in Bank's 401(k)
Plan on the first day of the month following the 90th day after the Commencement
Date. Executive will also be eligible to participate in an Executive deferred
compensation plan and a salary continuation program, on terms agreeable to Bank
and Executive.
3.6. 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.
3.7. Stock Options. As soon as practicable after the Commencement Date,
Executive shall receive an incentive stock option under the Temecula Valley
Bancorp Inc. ("Company") 2004 Stock Incentive Plan which will entitle Executive,
upon vesting, to purchase up to an aggregate of 20,000 shares of the Company's
common stock.
3.8. Relocation Expenses. Bank shall pay for all of Executive's reasonable
relocation expenses from Truckee, California to the Temecula, California area.
3.9. Interim Living Expenses. Bank shall pay for all of Executive's
temporary, reasonable, housing expenses in the Temecula, California area until
the first to occur of: (i) June 1, 2005, or (ii) the date Executive permanently
moves his residence to the Temecula, California area.
3.10. Salary Continuation Plan. Subject to Executive's successful passing
of a required physical examination and insurability, as determined by Bank and
Bank's insurance provider, Executive shall receive a salary continuation plan
that provides, during the Term, an annual $100,000 benefit when Executive
reaches the age of 65 for up to 15 years.
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. 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,
Executive shall then only be entitled to receive his Base Salary through the
effective date of such termination. If Executive's employment is terminated by
Bank pursuant to Section 4.2 or within six months before or after a Change of
Control, as defined in Section 4.4, 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 a Severance Payment
in an amount equal to Executive's Base Salary (as in effect immediately prior to
termination) for the severance period, which shall, for this purpose, be twelve
months from the effective date of termination, payable over twelve months, in
equal installments, in accordance with the Bank's normal payroll practices.
4.4. Vesting of Options Upon Change of Control. Executive's option
agreements covering Company stock options to be issued to him, from time to
time, shall provide that in the event of a Change of Control (as defined below),
all options shall vest immediately prior to any Change of Control. "Change of
Control" means: (a) more than 50% of the Company's voting stock is transferred
to a person or entity that is not, prior to the transaction, a Bank "Affiliate,"
as that term is defined in 12 U.S.C. Section 371c or (b) a merger, consolidation
or other transaction or series of transactions pursuant to which Company's
shareholders prior to such transaction or series of transactions own less than
50% of the voting control of the resulting entity after such transaction.
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4.5. Other Employment. In the event of termination of Executive under
Section 4.2 and payment by Bank of the Severance Payment under Section 4.3,
Executive agrees not to seek or accept employment in the banking industry for
performance of services within a 25 mile radius of every location Bank maintains
an office for a period of six months from the effective date of termination. If
Executive chooses to accept such employment, he shall not be entitled to the
Severance Payment and to the extent paid, shall be repaid immediately to Bank.
5. GENERAL PROVISIONS.
5.1. 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 Bank
employee or Bank customer to become an employee or customer of another
institution until six months following his termination of employment.
5.2. Assignment and Modification. This Agreement, and the rights and duties
hereunder, may not be assigned by Executive.
5.3. 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.
27710 Jefferson Drive, Suite A100
Temecula, California 92590
Attn: Stephen H. Wacknitz, President /
Chief Executive Officer
Facsimile: (909) 694-9194
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With a copy to: Stephanie E. Allen, Esq.
McAndrews, Allen & Matson
2040 Main Street, 14th Floor
Irvine, CA 92614
Facsimile: (949) 955-3723
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.
5.4. Successors. This Agreement shall be binding upon, and shall inure to
the benefit of, the successors and assigns of the parties.
5.5. 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.
5.6. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of California.
5.7. 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.
5.8. 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.
5.9. Calendar Days/Close of Business. Unless the context so 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.
5.10. 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.
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5.11. 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.
5.12. 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 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, N.A.
By: /s/
Stephen H. Wacknitz
President and Chief Executive Officer
Executive: /s/
William H. McGaughey
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