Exhibit 10.23(a)
TEMECULA VALLEY BANK
SPLIT DOLLAR AGREEMENT
Insurer:
Bank: Temecula Valley Bank
Insured: Stephen H. Wacknitz
Relationship of Insured to Bank: Executive
Effective Date: August 1, 2005
THIS AGREEMENT is adopted this 1st day of August, 2005, by and between
TEMECULA VALLEY BANK, a nationally-charted commercial bank located in Temecula,
California (the "Company"), and Stephen H. Wacknitz (the "Executive").
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 "Insured" 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 the $1,173,471.00 (one million, one hundred and seventy-three
thousand, four hundred and seventy-one dollars).
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.
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, suite 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 ninety (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 ninety (90) days by notifying the claimant in writing,
prior to the end of the initial ninety (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,
(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) (20 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 sixty (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 sixty (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 sixty (60) days
by notifying the claimant in writing, prior to the end of the initial
sixty (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 denial,
(b) A reference to the specific provisions of this
Agreement on which a 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 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 this 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, or 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.
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 obligation 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 the Agreement.
8.8 Names Fiduciary. The Company shall be the names 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
/s/ Stephen H. Wacknitz By: /s/
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Stephen H. Wacknitz Title EVP / Chief Financial Officer