Exhibit 10.1
409A Amendment
to the
Temecula Valley
Bank
Executive Deferred Compensation
Agreement for
Martin E. Plourd
Temecula Valley
Bank (“Company”) and Martin E. Plourd
(“Executive”) originally entered into the Temecula
Valley Bank Executive Deferred Compensation Agreement
(“Agreement”) on July 27, 2005. Pursuant to Article 9
of the Agreement, the Company and the Executive hereby adopt this
409A Amendment, effective July 27, 2005.
This Amendment
is intended to bring the Agreement into compliance with the
requirements of Internal Revenue Code Section 409A. Accordingly,
the intent of the parties hereto is that the Agreement shall be
operated and interpreted consistent with the requirements of
Section 409A. In addition, the Agreement has been modified to
provide for distribution upon only two events (Separation from
Service and death before Separation from Service). Therefore, the
following changes shall be made:
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Section 1.1,
“Change of Control,” shall be deleted in its entirety
and Section 1.1 shall intentionally be left blank.
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Section 1.6,
“Disability,” shall be deleted in its entirety and
Section 1.6 shall intentionally be left blank.
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Section 1.7,
“Early Termination,” shall be deleted in its entirety
and Section 1.7 shall intentionally be left blank.
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Section 1.10,
“Normal Retirement Age,” shall be deleted in its
entirety and Section 1.10 shall intentionally be left
blank.
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The following
provision regarding “Separation from Service”
distributions shall be added as a new Section 1.13 under Article 1,
as follows:
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Separation from Service :
Notwithstanding
anything to the contrary in this Agreement, to the extent that any
benefit under this Agreement is payable upon a “Termination
of Employment,” “Termination of Service,” or
other event involving the Executive’s cessation of services,
such payment(s) shall not be made unless such event constitutes a
“Separation from Service” as defined in Treasury
Regulations Section 1.409A-1(h).
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Section 2.2,
“Subsequent Deferral Elections,” shall be deleted in
its entirety and replaced with the following Section
2.2:
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Deferral Elections – In General
:
In any Plan Year
during which Executive defers compensation (as defined herein),
Executive shall file a Deferral Election Form for any compensation
deferred. Such form shall be filed with the Plan Administrator no
later than the close of the Executive’s taxable year next
preceding the service year, and such election is effective only to
defer compensation that has not yet been earned by the Executive at
the time of the election.
A deferral
election submitted for a particular year may continue to be valid
for succeeding years until changed or modified. Deferral elections,
once made, however, are irrevocable as of the last permissible date
on which such deferral elections may be made.
Initial
Deferral Election(s) :
Upon
notification of eligibility in this Agreement during the initial
Plan Year, and if Executive elects to defer compensation, Executive
shall deliver to the Plan Administrator:
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a Deferral
Election Form, signed and dated;
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a Beneficiary
Form, signed and dated.
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Executive shall
deliver such forms to the Plan Administrator within thirty (30)
days of notification of eligibility, and shall set forth on the
forms the amount of compensation to be deferred.
Subsequent
Changes to Time and Form of Payment :
The Company may
permit a subsequent change to form and timing of payments (a
“subsequent deferral election”). Any such change shall
be considered made only when it becomes irrevocable under the terms
of the Agreement. Any subsequent deferral election will be
considered irrevocable not later than thirty (30) days following
acceptance of the change by the Plan Administrator, subject to the
following rules:
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the subsequent
deferral election may not take effect until at least twelve (12)
months after the date on which the election is made;
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the payment
(except in the case of death, disability, or unforeseeable
emergency) upon which the subsequent deferral election is made is
deferred for a period of not less than five years from the date
such payment would otherwise have been paid; and
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in the case of a
payment made at a specified time, the election must be made not
less than twelve (12) months before the date the payment is
scheduled to be paid.
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A new Section
2.3 shall be added as follows:
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Hardship . Upon the occurrence of an
“unforeseeable emergency” as that term is defined in
Treasury Regulation § 1.409A-3(i)(3), the Company may reduce
deferrals under this Agreement to the extent that such
