Exhibit 10.23(c)
FIRST AMENDMENT
TO THE
TEMECULA VALLEY BANK
SPLIT DOLLAR AGREEMENT
DATED AUGUST 1, 2005
FOR
XXXXXXX X. XXXXXXXX
THIS AMENDMENT is adopted this 31st day of December, 2005, by and between
Temecula Valley Bank, a state-chartered commercial bank located in Temecula,
California (the "Company") and Xxxxxxx X. Xxxxxxxx (the "Executive").
On August 1, 2005, the Company and the Executive entered into the Temecula
Valley Bank Split Dollar Agreement ("Agreement"). The undersigned parties hereby
amend the Agreement for the purpose of: (1) adding a Change in Control
definition; (2) clarifying the Executive's Interest in the death benefit; (3)
clarifying that the Comparable Coverage of Article 2.3 applies only in the event
of a Change in Control of the Company; and (4) deleting the reference to the
Salary Continuation Agreement referenced in the current Article 1.4 and
replacing Article 1.4 with a Change in Control definition.
Therefore, the following changes shall be made:
Article 1.4 shall be deleted in its entirety and replaced with the
following new Article 1.4, as follows:
1.4 "Change in Control" means:
(a) A change in the ownership of the capital stock of the
Company, whereby another corporation, person, or group acting in
concert (hereinafter this Agreement shall collectively refer to any
combination of these three [another corporation, person, or group
acting in concert] as a "Person") as described in Section 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
acquires, directly or indirectly, beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of a number
of shares of capital stock of the Company which constitutes twenty-five
percent (25%) or more of the combined voting power of the Company's
then outstanding capital stock then entitled to vote generally in the
election of directors; or
(b) The persons who were members of the Board of Directors of
the Company immediately prior to a tender offer, exchange offer,
contested election or any combination of the foregoing, cease to
constitute a majority of the Board of Directors; or
(c) The adoption by the Board of Directors of the Company of a
merger, consolidation or reorganization plan involving the Company in
which the Company is not the surviving entity, or a sale of all or
substantially all of the assets of the Company. For purposes of this
Agreement, a sale of all or substantially all of the assets of the
Company shall be deemed to occur if any Person acquires (or during the
12-month period ending on the date of the most recent acquisition by
such Person, has acquired) gross assets of the Company that have an
aggregate fair market value equal to twenty-five percent (25%) or more
of the fair market value of all of the respective gross assets of the
Company immediately prior to such acquisition or acquisitions; or
(d) A tender offer or exchange offer is made by any Person
which results in such Person beneficially owning (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) either twenty-five
percent (25%) or more of the Company's outstanding shares of Common
Stock or shares of capital stock having twenty-five (25%) or more the
combined voting power of the Company's then outstanding capital stock
(other than an offer made by the Company), and sufficient shares are
acquired under the offer to cause such person to own twenty-five (25%)
or more of the voting power; or
(e) Any other transactions or series of related transactions
occurring which have substantially the same effect as the transactions
specified in any of the preceding clauses of this Section 1.4.
Notwithstanding the above, certain transfers are permitted within
Section 318 of the Code and such transfers shall not be deemed a Change
in Control under this Section 1.4.
Article 2.2 of the Agreement shall be deleted in its entirety and replaced
by the following Article 2.2:
2.2 Executive's Interest. The Executive shall have the right to designate the
beneficiary of an amount of death proceeds equal to One Million One Hundred
Seventy-three Thousand Four Hundred Ten dollars ($1,173,410). 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 interest in the Policy and no death benefit shall
be paid under this Section 2.2.
Article 2.2.1 shall be deleted in its entirety and replaced with the
following Article 2.2.1:
2.2.1 Contingent Interest. Executive's rights under this Section shall
be contingent upon the existence of a valid life insurance Policy on
the life of the Insured, as evidenced on any Split Dollar Policy
Endorsement attached hereto or hereafter executed between the Company
and the Executive, and which Policy's death proceeds are sufficient to
fund both the Company's and the Executive's Interests described in
Sections 2.1 and 2.2 herein.
Article 2.3 of the Agreement shall be deleted in its entirety and replaced
by Article 2.3 below.
2.3 Comparable Coverage upon Change in Control. Upon a Change in Control,
the Company shall not 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.
IN WITNESS OF THE ABOVE, the Executive and the Company hereby consent to
this First Amendment.
Executive: Temecula Valley Bank
/s/ Xxxxxxx X. Xxxxxxxx By /s/
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Xxxxxxx X. Xxxxxxxx
Title
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