Exhibit 10.1
CONFIDENTIAL SETTLEMENT AND
MUTUAL GENERAL RELEASE AGREEMENT
This
Confidential Settlement and Mutual General Release Agreement
(“ Agreement ”) is entered into by and between
Donald A. Pitcher (“ Employee ”), on the one
hand, and Temecula Valley Bank, (“ Bank ”) and
Temecula Valley Bancorp Inc. (“ Bancorp ” and
together with Bank, “ Company ”) on the other,
on May 15, 2009.
WHEREAS , on May 15, 2009 (“ Termination
Date ”), Employee has agreed to tender his resignation of
employment with Bank and further resign from all positions with the
Company.
WHEREAS , Employee and Bank now desire to resolve all
disputes related to Employee’s employment and termination
from employment in an amicable way and resolve any and all pending
and potential claims, issues, and actions that were asserted or
could have been asserted between Employee, on the one hand, and
Company, on the other hand, as well as any other potential actions
and issues, without the further expenditure of time or the expense
of litigation and, for that reason, have entered into this
Agreement.
1.
Consideration . Subject to appropriate
withholding or any amounts deducted for federal income tax, social
security tax, state income tax, SUI/SDI tax and any other amounts,
to the extent such amounts are required to be withheld or deducted
by law, as determined, without liability, in the sole discretion of
Bank, effective on the date of this Agreement:
a) That certain Amended and Restated Salary
Continuation Agreement (“ Agreement No. 1 ”)
between Employee and Bank dated December 29, 2006 (attached hereto
as Agreement No. 1), as amended by that certain 409A Amendment
executed December 31, 2007 (“ Agreement No. 2 ”
and attached hereto as Agreement No. 2) shall terminate effective
as of the Termination Date and Employee and his beneficiaries shall
not be entitled to receive any further or additional benefits under
Agreement No. 1 or Agreement No. 2.
b) That
certain Amended and Restated Split Dollar Agreement (“
Agreement No. 3 ”) dated December 29, 2006 between
Employee and Bank (attached hereto as Agreement No. 3), as amended
by that certain Amendment to the Split Dollar Agreement executed
December 31, 2007 (“ Agreement No. 4 ” and
attached hereto as Agreement No. 4) shall terminate effective as
June 1, 2009 if the Agreement allows and, if not, as of the
Termination Date and Employee and his beneficiaries shall not be
entitled to receive any benefits under Agreement No. 3 or Agreement
No. 4.
c) Employee shall retain all of the benefits
of his 401(k) at Bank on the date of this Agreement according to
its terms and Employee shall have the right to roll over this
account into a different account, as permitted by the terms of the
account and in accordance with applicable law and regulation;
and
d) That
certain Employment Agreement (“ Agreement No. 5
”) dated December 4, 2006 between Bank and Employee (attached
hereto as Agreement No. 5), as amended by that certain First
Amendment to the Employment Agreement entered into as of March 10,
2008 (“ Agreement No. 6 ” and attached hereto as
Agreement No. 6) shall be deemed terminated as of the Termination
Date and Employee shall not be entitled to receive any further or
additional benefits under the Employment Agreement.
e) In
order to take advantage of Employee’s knowledge and skill
relative to banking and Bank, in particular, Employee shall make
himself available to Bank at times and places mutually convenient
to both Bank and Employee, as needed, on a consulting basis, for
six months from the date of this Agreement and in exchange for such
engagement, Bank shall pay to Employee, as a consultant, $10,800
per month ($5,400 on the 15 th and $5,400 on the last
day of the month) for six months for such services and for
Employee’s availability to the Bank, regardless of the extent
to which Bank utilizes Employee’s skills, to be paid in
accordance with normal bank payroll practices (generally twice each
month), as may be in effect from time to time. *If the FDIC/DFI
concur, the aggregate amount of $64,800 will be paid out
semi-monthly of $8,100 for a period of four (4) months on the
normal Bank payroll dates.
2.
Resignation/Spousal Consent . Simultaneous with
the execution of this Agreement, Employee shall deliver the
resignation letter set forth at Exhibit B hereto. As soon as
practical after the date of this Agreement, Employee agrees to
cause his spouse to execute and deliver to the Company the spousal
consent set forth at Exhibit C .
3.
D&O Coverage . Bank agrees that it will not
attempt to modify or change its director and officer policies or
fiduciary policies in effect as of the date of this Agreement
(collectively the “ Policy ”) in an effort to
preclude any coverage that Employee may be entitled to claim, if
any, as of the Termination Date or thereafter.
4.
Releases and Waivers .
a.
Employee Release . Except for those obligations
created by or arising out of this Agreement, Employee, on
Employee’s own behalf and on behalf of Employee’s
descendants, dependants, spouse, heirs, executors, administrators,
assigns and successors, and each of them, does hereby covenant not
to sue and acknowledges complete satisfaction of and hereby fully
and forever releases, absolves and discharges Bancorp and Bank and
their respective subsidiaries, and affiliated corporations,
businesses and partnerships, past, present and future
(collectively, the “ Group ”), and each of
Group’s respective trustees, directors, officers,
shareholders, partners, agents, employees, representatives,
attorneys, employee benefits plans (including the past, present,
and future respective trustees and administrator’s
fiduciaries thereof), past and present, as well as the heirs,
executors, administrators, predecessors, successors and assigns of
all the foregoing, and each of them (hereinafter collectively
referred to as the “ Company Releasees ”) with
respect to and from any and all claims, demands, rights,
liens, agreements, contracts, covenants, actions, suits, causes of
action, charges, grievances, wages, employment benefits,
obligations, debts, costs, expenses, attorneys’ fees,
damages, judgments, orders and liabilities of whatever kind or
nature in law, equity or otherwise, whether now known or unknown,
suspected or unsuspected, and whether or not concealed or hidden
(hereinafter collectively referred to as “ Claims
” and individually a “ Claim ”), which
Employee now owns or holds or has at any time heretofore owned or
held as against Company Releasees, or any of them, arising out of
or in any way connected with or related to or concerning: (i) any
Claim that was or could have been asserted by Employee; or (ii)
Employee’s employment relationship with Bank or Bancorp or
the termination or resignation thereof; or (iii) wrongful
termination, breach of express and/or implied-in-fact contract,
breach of the covenant of good faith and fair dealing, violation of
public policy, intentional and/or negligent infliction of emotional
distress, defamation, invasion of privacy, fraud and/or negligent
misrepresentation, intentional and/or negligent interference with
contractual relations and/or prospective economic advantage, and
other common law counts; or (iv) any violation of any federal,
state, or local law (whether statutory or common law), regulation
or ordinance (including, but not limited to, to any claim for
discrimination or retaliation under Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family and Medical Leave Act,
that Fair Labor Standards Act, the National Labor Relations Act,
the Worker Adjustment Retraining and Notification Act, the Employee
Retirement Income Security Act, the California Fair Employment and
Housing Act, the California Family Rights Act, and the California
Labor Code); or (v) any Claim for severance pay, bonus, sick leave,
holiday pay, vacation pay, life insurance, health and medical
insurance or any other fringe benefit, or disability; or (vi) any
other transactions, or occurrences, acts, or omissions of any laws,
and damage or injury whatsoever, known or unknown, suspected or
unsuspected, resulting from any act or omission by or on the part
of Company Releasees, or any of them, committed or omitted prior to
the date of Employee’s execution of this
Agreement.
b.
Limitations on Employee Release . Notwithstanding
any other language in this Agreement, the releases given by
Employee herein do not include any release of any right to
indemnity Employee may have from Company as found in the California
Labor Code, or at law, equity or by contact between the Company and
Employee.
c.
Waiver of Age Discrimination Claims . Employee
acknowledges and agrees that:
(i)
Employee is releasing any and all claims for age discrimination
under the Age Discrimination in Employment Act (hereinafter “
ADEA ”), as amended by the Older Workers Benefit
Protection Act, and any federal, state or local fair employment
acts arising up to the date of the execution of this
Agreement;
(ii)
Employee has been advised to consult an attorney of his choice
prior to the execution of this Agreement;
(iii)
Employee was given twenty-one (21) days from the date of receipt of
this Agreement to decide whether or not to execute it and if he
chooses to sign this Agreement prior to the expiration of such
21-day period, he will execute the Acknowledgement attached hereto
as Exhibit A ;
(iv)
Employee has seven (7) days from the execution of this Agreement to
revoke his execution and this Agreement will become null and void
if Employee elects revocation during that time; and
(v)
Nothing in this Agreement prevents or precludes Employee from
challenging or seeking a determination in good faith of the
validity of this waiver under the ADEA, nor does it impose any
condition, precedent, penalties or costs from doing so, unless
specifically authorized by federal law. Any revocation must be in
writing and must be received by Bank’s counsel during the
seven-day revocation period. In the event of such revocation,
neither Bank nor Employee will have any obligations under this
Agreement.
d.
Waiver of Civil Code Section 1542 . It is a
further condition of this Agreement and is the intention of the
parties in executing this Agreement that the same shall be
effective as a bar to each and every Claim hereinabove specified
and in furtherance of this intention, the parties hereby expressly
waive any and all rights or benefits conferred by the provisions of
CALIFORNIA CIVIL CODE SECTION 1542 and expressly consent that this
Agreement shall be given full force and effect according to each
and all of its express terms and conditions, including those
relating to unknown and unsuspected claims, demands and causes of
action, if any, as well as those relating to any other Claims
hereinabove specified. CALIFORNIA CIVIL CODE SECTION 1542
provides:
“A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.”
The parties e
