EXHIBIT 10.28
TEMECULA VALLEY BANK
SPLIT DOLLAR AGREEMENT
THIS AGREEMENT is adopted this 30th day of September, 2004, by and
between TEMECULA VALLEY BANK, a nationally-chartered commercial bank, located in
Temecula, California (the "Company"), and THOMAS M. SHEPHERD (the "Executive").
This Agreement shall append the Split Dollar Endorsement entered into on even
date herewith or as subsequently amended, by and between the aforementioned
parties.
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to divide the death proceeds of a life insurance policy on
the Executive's life. The Company will pay life insurance premiums from its
general assets.
AGREEMENT
The Company and the Executive agree as follows:
Article 1
General Definitions
The following terms shall have the meanings specified:
1.1 "Insured" means the Executive.
1.2 "Insurer" means each life insurance carrier in which there is a Split
Dollar Policy Endorsement attached to this Agreement.
1.3 "Policy" means the specific life insurance policy or policies issued by
the Insurer.
1.4 "Salary Continuation Agreement" means that Salary Continuation
Agreement between the Company and the Executive on even date herewith or as
subsequently amended.
Article 2
Policy Ownership/Interests
2.1 Company Ownership. The Company is the sole owner of the Policy and
shall have the right to exercise all incidents of ownership. The Company shall
be the beneficiary of the remaining death proceeds of the Policy after the
Interest of the Executive or the Executive's transferee has been paid according
to Section 2.2 below.
2.2 Executive's Interest. The Executive shall have the right to designate
the beneficiary of the death proceeds. The Executive shall also have the right
to elect and change settlement options that may be permitted. Upon the
termination of this Agreement pursuant to Article 7, the Executive, the
Executive's transferee or the Executive's beneficiary shall have no rights or
interests in the Policy and no death benefit shall be paid under this Section
2.2.
2.2.1 Death During Active Service. If the Executive dies while in
the active service of the Company, the Executive's beneficiary shall
receive $595,480 (Five Hundred Ninety-Five Thousand Four Hundred Eighty
Dollars).
2.2.2 Death During Payment of a Benefit under the Salary
Continuation Agreement. If the Executive dies after any benefit payments
have commenced under Article 2 of the Salary Continuation Agreement but
before receiving all such payments, the Company shall cease paying the
remaining benefit, if any, and the Executive's beneficiary shall receive
the split dollar death benefit described in Section 2.2.1 of this
Agreement, less payments already made to the Executive under the Salary
Continuation Agreement.
2.2.3 Death After Termination of Employment But Before
Commencement of Payment under the Salary Continuation Plan. If the
Executive is entitled to a benefit under Article 2 of the Salary
Continuation Agreement, but dies prior to the commencement of said
benefit payments, the Company shall pay no benefit under the Salary
Continuation Agreement and the Executive's beneficiary shall receive the
split dollar death benefit described in Section 2.2.1 of this Agreement.
2.3 Comparable Coverage. Upon execution of this Agreement, the Company
shall maintain the Policy in full force and effect and in no event shall the
Company amend, terminate or otherwise abrogate the Executive's interest in the
Policy, unless the Company replaces the Policy with a comparable insurance
policy to cover the benefit provided under this Agreement and the Company and
the Executive execute a new Split Dollar Policy Endorsement for said comparable
insurance policy. The Policy or any comparable policy shall be subject to the
claims of the Company's creditors.
Article 3
Premiums
3.1 Premium Payment. The Company shall pay any premiums due on the Policy.
3.2 Economic Benefit. The Company shall determine the economic benefit
attributable to the Executive based on the amount of the current term rate for
the Executive's age multiplied by the aggregate death benefit payable to the
Executive's beneficiary. The "current term rate" is the minimum amount required
to be imputed under Revenue Rulings 64-328 and 66-110, or any subsequent
applicable authority.
3.3 Imputed Income. The Company shall impute the economic benefit to the
Executive on an annual basis.
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Article 4
Assignment
The Executive may assign without consideration all of the Executive's
interests in the Policy and in this Agreement to any person, entity or trust. In
the event the Executive transfers all of the Executive's interest in the Policy,
then all of the Executive's interest in the Policy and in the Agreement shall be
vested in the Executive's transferee, who shall be substituted as a party
hereunder and the Executive shall have no further interest in the Policy or in
this Agreement.
Article 5
Insurer
The Insurer shall be bound only by the terms of the Policy. Any payments
the Insurer makes or actions it takes in accordance with the Policy shall fully
discharge it from all claims, suits and demands of all entities or persons. The
Insurer shall not be bound by or be deemed to have notice of the provisions of
this Agreement.
Article 6
Claims and Review Procedure
6.1 Claims Procedure. Any person or entity who has not received benefits
under the Agreement that he or she believes should be paid (the "claimant")
shall make a claim for such benefits as follows:
6.1.1 Initiation - Written Claim. The claimant initiates a claim
by submitting to the Company a written claim for the benefits.
6.1.2 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.
6.1.3 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 this Agreement on
which the denial is based,
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(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 this Agreement'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) (29 United States Code section
1132(a)) following an adverse benefit determination on
review.
6.2 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:
6.2.1 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.
6.2.2 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.
6.2.3 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.
6.2.4 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.
6.2.5 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 this Agreement 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
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(d) A statement of the claimant's right to bring a civil action
under ERISA Section 502(a).
Article 7
Amendments and Termination
7.1 This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Executive. In the event that the Company
decides to maintain the Policy after the termination of the Agreement, the
Company shall be the direct beneficiary of the entire death proceeds of the
Policy.
7.2 Notwithstanding any provision of this Agreement to the contrary, the
Company shall not pay any benefit under this Agreement if the Company terminates
the Executive's employment for:
(a) Willful breach of duty in the course of employment or
habitual neglect of employment responsibilities and duties;
(b) Conviction of any felony or crime involving moral turpitude,
fraud or dishonesty;
(c) Willful violation of any state or federal banking or
securities law, the rules or regulations of any banking
agency, or any material Company rule, policy or resolution
resulting in an adverse effect on the Company; or
(d) Disclosure to any third party by the Executive, without
authority or permission, of any secret or confidential
information of the Company.
7.3 Suicide or Misstatement. The Company shall not pay any benefit under
this Agreement if the Executive commits suicide within three years after the
date of this Agreement. In addition, the Company shall not pay any benefit under
this Agreement 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
Miscellaneous
8.1 Binding Effect. This Agreement shall bind the Executive and the Company
and their beneficiaries, survivors, executors, administrators and transferees,
and any Policy beneficiary.
8.2 No Guarantee of Employment. This Agreement is not an employment policy
or contract. 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.
8.3 Applicable Law. The Agreement and all rights hereunder shall be
governed by and construed according to the laws of the State of California,
except to the extent preempted by the laws of the United States of America.
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8.4 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.
8.5 Notice. Any notice, consent or demand required or permitted to be given
under the provisions of this Split Dollar Agreement by one party to another
shall be in writing, shall be signed by the party giving or making the same, and
may be given either by delivering the same to such other party personally, or by
mailing the same, by United States certified mail, postage prepaid, to such
party, addressed to his or her last known address as shown on the records of the
Company. The date of such mailing shall be deemed the date of such mailed
notice, consent or demand.
8.6 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.
8.7 Administration. The Company shall have powers which are necessary to
administer this Agreement, including but not limited to:
(a) Interpreting the provisions of this Agreement;
(b) Establishing and revising the method of accounting for this
Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer this Agreement.
8.8 Named Fiduciary. The Company shall be the named fiduciary and
administrator under the 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 the Company consent to this
Agreement on the date above written.
EXECUTIVE: COMPANY:
TEMECULA VALLEY BANK
__________________________________ By______________________________________
Thomas M. Shepherd
Title ____________________________________
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BENEFICIARY DESIGNATION
TEMECULA VALLEY BANK, N.A.
SPLIT DOLLAR AGREEMENT
I, Thomas M. Shepherd, designate the following as beneficiary of benefits
under the Agreement payable following my death:
- --------------------------------------------------------------------------------
Primary:
- ----------------------------------------------------------- -----%
- ----------------------------------------------------------- -----%
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Contingent:
- ----------------------------------------------------------- -----%
- ----------------------------------------------------------- -----%
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Notes:
o Please PRINT CLEARLY or TYPE the names of the beneficiaries.
o To name a trust as beneficiary, please provide the name of the
trustee(s) and the exact name and date of the trust agreement.
o To name your estate as beneficiary, please write "Estate of _[your
name]_".
o Be aware that none of the contingent beneficiaries will receive
anything unless ALL of the primary beneficiaries predecease you.
I understand that I may change these beneficiary designations by delivering a
new written designation to the Company, which shall be effective only upon
receipt and acknowledgment by the Company prior to my death. I further
understand that the designations will be automatically revoked if the
beneficiary predeceases me, or, if I have named my spouse as beneficiary and our
marriage is subsequently dissolved.
Name: _______________________________
Signature: _______________________________ Date: _______
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SPOUSAL CONSENT (Required if Spouse not named beneficiary):
- --------------------------------------------------------------------------------
I consent to the beneficiary designation above, and acknowledge that if I am
named beneficiary and our marriage is subsequently dissolved, the designation
will be automatically revoked.
- --------------------------------------------------------------------------------
Spouse Name: _______________________________
- --------------------------------------------------------------------------------
Signature: _______________________________ Date: _______
Received by the Company this ________ day of ______________, 2___
By: _________________________________
Title: _____________________________
POLICY ENDORSEMENT
Contract Owner: TEMECULA VALLEY BANK
The undersigned Owner requests that the policy(ies) shown in the attached
Schedule Page issued by Midland National Life Insurance Company (the "Insurer")
provide for the following beneficiary designation:
1. Upon the death of the Insured, proceeds shall be paid in one sum to
the Owner, its successors or assigns, as Beneficiary, to the extent claimed by
said Owner.
2. Any proceeds at the death of the Insured in excess of the amount paid
under the provisions of paragraph 1 of this Policy Endorsement shall be paid in
one sum in accordance with the written direction of the Owner. Such direction
will be provided to the Insurer at the time of claim. The Insurer will be
protected in relying solely on the Owner to provide the name(s) of the
party(ies) to pay any excess not paid under paragraph 1. If the Owner fails to
provide the name(s) of the party(ies) at the time of claim, then any proceeds
payable under this paragraph shall be paid in one sum to the Beneficiary.
3. It is hereby provided that (i) any payment made to the Beneficiary or
other party under paragraph 2 of this Policy Endorsement shall be a full
discharge of the Insurer to the extent thereof; (ii) such discharge shall be
binding on all parties claiming any interest under the Policy; and (iii) the
Insurer shall have no responsibility with respect to the amounts so claimed.
4. It is agreed by the undersigned that this designation shall be subject
in all respects to the contractual terms of the Policy.
The undersigned is signing in a representative capacity for the Owner and
warrants that he or she has the authority to bind the entity on whose behalf
this document is being executed.
Signed at ________________________, California, this _____ day of ______, 20___.
OWNER:
TEMECULA VALLEY BANK
By: ____________________________ By: ___________________________
Bank Officer #1 Bank Officer #2
Title: ____________________________ Title: ___________________________
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Schedule Page
Policy(ies) Subject to Policy Endorsement
- ------------------------------------------------------------ -------------------
Policy Number Insured
- ------------------------------------------------------------ -------------------
682759 Thomas M. Shepherd
- ------------------------------------------------------------ -------------------
OWNER:
TEMECULA VALLEY BANK
By: ____________________________ By: ____________________________
Bank Officer #1 Bank Officer #2
Title: ____________________________ Title: ____________________________
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POLICY ENDORSEMENT
Contract Owner: TEMECULA VALLEY BANK
The undersigned Owner requests that the policy(ies) shown in the attached
Schedule Page issued by West Coast Life Insurance Company (the "Insurer")
provide for the following beneficiary designation:
1. Upon the death of the Insured, proceeds shall be paid in one sum to
the Owner, its successors or assigns, as Beneficiary, to the extent claimed by
said Owner.
2. Any proceeds at the death of the Insured in excess of the amount paid
under the provisions of paragraph 1 of this Policy Endorsement shall be paid in
one sum in accordance with the written direction of the Owner. Such direction
will be provided to the Insurer at the time of claim. The Insurer will be
protected in relying solely on the Owner to provide the name(s) of the
party(ies) to pay any excess not paid under paragraph 1. If the Owner fails to
provide the name(s) of the party(ies) at the time of claim, then any proceeds
payable under this paragraph shall be paid in one sum to the Beneficiary.
3. It is hereby provided that (i) any payment made to the Beneficiary or
other party under paragraph 2 of this Policy Endorsement shall be a full
discharge of the Insurer to the extent thereof; (ii) such discharge shall be
binding on all parties claiming any interest under the Policy; and (iii) the
Insurer shall have no responsibility with respect to the amounts so claimed.
4. It is agreed by the undersigned that this designation shall be subject
in all respects to the contractual terms of the Policy.
The undersigned is signing in a representative capacity for the Owner and
warrants that he or she has the authority to bind the entity on whose behalf
this document is being executed.
Signed at ________________________, California, this _____ day of ______, 20___.
OWNER:
TEMECULA VALLEY BANK
By: ____________________________ By: ____________________________
Bank Officer #1 Bank Officer #2
Title: ____________________________ Title: ____________________________
1 of 2
Schedule Page
Policy(ies) Subject to Policy Endorsement
- ------------------------------------------------------------ ------------------
Policy Number Insured
- ------------------------------------------------------------ -------------------
ZUA373012 Thomas M. Shepherd
- ------------------------------------------------------------ -------------------
ZUA396158 Thomas M. Shepherd
- ------------------------------------------------------------ -------------------
OWNER:
TEMECULA VALLEY BANK
By: ____________________________ By: ____________________________
Bank Officer #1 Bank Officer #2
Title: ____________________________ Title: ____________________________
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