exhibit10-1.htm


    Exhibit 10.1

    
      

    

     

    AGREEMENT
      AND
      RELEASE

     

    This
      Agreement and Release (“Agreement”) is made and entered into this 23rd day of
      January, 2008, among Vineyard Bank, National Association, a national banking
      association (“Bank”), Vineyard National Bancorp, a California corporation
      (“Bancorp”) and Norman Antonio Morales (“Morales”).  The parties have
      agreed that Morales’ employment with Bank, Bancorp and all parents, subsidiaries
      and affiliates of Bank and Bancorp (collectively, the “Vineyard Entities”) shall
      terminate effective January 23, 2008 (the “Separation Date”).  The
      following confirms the terms and conditions of a mutually agreed upon separation
      and release of claims among Bank, Bancorp and Morales.

     

    1. Termination
      of Employment;
      Resignation from Board of Directors.  Morales’ employment with
      each of the Vineyard Entities will be terminated effective as of the Separation
      Date, and Morales hereby resigns from the board of directors of each of the
      Vineyard Entities, including, without limitation, Bancorp, Bank, 1031 Exchange
      Advantage, Inc. and 1031 Funding & Reverse Corp., effective as of the
      Separation Date.  Morales will be relieved of all duties and
      responsibilities related to his positions as of that date.

     

    2. Payments.  Promptly
      following the expiration of the revocation period set forth in Section 8 of
      this
      Agreement, and provided that Morales is in compliance with the terms and
      conditions of this Agreement, Bank or Bancorp shall:

     

    (a) Pay
      to
      Morales a lump sum payment in the amount of One Million One Hundred and Fifty
      Thousand Dollars ($1,150,000), less all applicable state and federal
      withholdings;

     

    (b) Reimburse
      Morales for premiums incurred by Morales in continuing group health insurance
      coverage pursuant to COBRA through January 23, 2009.  After January
      23, 2009, Morales shall be eligible to continue group health insurance coverage
      pursuant to COBRA at Morales’ own expense.  Morales shall not be
      eligible, however, to receive or accrue other benefits, such as vacation, sick
      leave or holiday pay;

     

    (c) Transfer
      to Morales any and all interest of the Vineyard Entities in the equity
      membership held by Morales at the Shady Canyon Country Club;

     

     

    (d) Transfer
      to Morales good and marketable title to that certain 2007 Mercedes S65,
      California license number 6BPS655; and

     

    (e) Use
      commercially reasonable best efforts to facilitate the transfer of its entire
      interest in the “key-man” term life insurance policy to Morales, under which
      Morales is the insured party and Bancorp is the current designated
      beneficiary.  Upon such transfer, Morales shall be the sole owner of
      such policy and shall be responsible for any and all remaining insurance
      premiums and shall have the compete and absolute discretion to designate and
      re-designate beneficiaries of the policy from time to time.

     

    
      
         

      

      
        
        

        
          

        

      

      
         

      

    

     

    3. Consulting
      Arrangement.  Morales shall be placed on a consulting
      relationship
      with Bank and Bancorp commencing on the Separation Date and ending on January
      22, 2009 (the “Consulting Period”).  During the Consulting Period,
      Morales agrees to make himself reasonably available in person, by phone and/or
      by email during regular work hours, on a non-exclusive basis, to answer
      questions from members of Bancorp’s board of directors or any person
      specifically designated by Bancorp’s board of directors regarding matters with
      which Morales is familiar and/or about which Morales acquired knowledge,
      expertise and/or experience during the time Morales was employed by the
      Company.  Morales shall be an independent contractor, and not an
      employee or agent, during the Consulting Period and shall have no authority
      to
      bind Bank or Bancorp to any third person or otherwise to act in any way as
      a
      representative of Bank or Bancorp.  As an independent contractor,
      Morales shall not be eligible to participate in any employee benefit plans
      or
      programs during the Consulting Period, except as expressly set forth in Section
      2 of the Agreement.  The payment described in Paragraph 2(a) shall be
      considered, in part, as compensation to Morales for the services rendered by
      him
      during the Consulting Period and Morales shall receive no additional monies
      or
      fees from Bank or Bancorp for providing the services described in this
      Paragraph.

     

    4. Return
      of
      Property.  Morales agrees to return to Bancorp no later than
      the close of business on January 26, 2008 all property of any of the Vineyard
      Entities which Morales has in his custody or control including, but not limited
      to, office equipment, forms, manuals, client files, personnel files, or other
      confidential or proprietary materials of any of the Vineyard
      Entities.  Morales agrees to maintain all information regarding any of
      the Vineyard Entities’ clients or internal policies or procedures as strictly
      confidential and shall not disclose them to third parties.

     

     

    5. Waiver
      of
      Rights.  Morales agrees that the payments and benefits
      referenced in this Agreement are in excess of all monies and/or benefits owed
      by
      Bank and/or Bancorp to him for any reason whatsoever, and except as specifically
      provided by this Agreement, all rights of Morales associated with his employment
      and/or that certain Amended and Restated Employment Agreement among Bancorp,
      Bank and Morales dated April 9, 2007 are terminated as of the Separation
      Date.

     

    6. Releases
      of Known and Unknown
      Claims.  In consideration of the payments and benefits outlined
      above, and excepting only the obligations created in this Agreement, Morales
      hereby releases and discharges Bank, Bancorp and their current and former
      officers, directors, shareholders, employees, representatives, attorneys and
      agents, as well as their predecessors, parents, subsidiaries, affiliates,
      divisions, and successors in interest of and from any and all claims, demands,
      liabilities, suits or damages of any type or kind, whether known or unknown,
      including, without limitation, any and all claims arising from or in any way
      related to Morales’ employment with any of the Vineyard Entities, the
      termination thereof or the Amended and Restated Employment Agreement dated
      April
      9, 2007.

     

    This
      release specifically includes, without limitation, all claims for wages, salary,
      incentives, incentive awards, bonuses, benefits, wrongful discharge, breach
      of
      express or implied contract, defamation, fraud, misrepresentation, intentional
      or negligent infliction of emotional distress, defamation, compensatory and/or
      other relief relating to or in any way connected with the terms, conditions,
      and
      benefits of employment, discrimination based on race, color, sex, religion,
      national origin, age, marital status, disability and medical condition, and/or
      all claims arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
      § 2000e et seq.,
      the Age Discrimination in Employment Act of 1967 as amended by the Older Workers
      Benefit Protection Act, the Americans with Disabilities Act, the Family and
      Medical Leave Act, the California Family Rights Act, the California Fair
      Employment and Housing Act, COBRA, the Employee Retirement Income Security
      Act
      of 1974 (“ERISA”), and/or violations of any other statutes, rules, regulations
      or ordinances whether federal, state or local.  Notwithstanding the
      foregoing, nothing in this Agreement shall prevent Employee from filing a charge
      with any federal, state or administrative agency, but Morales agrees not to
      participate in, and waives any rights with respect to, any monetary or financial
      relief arising from any such proceeding that relates to the matters released
      by
      this Agreement.

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

     

    It
      is
      understood and agreed that this release extends to all claims of whatever
      nature, known or unknown, and includes all rights under Section 1542 of the
      Civil Code of California, which provides as follows:

     

    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.

     

    Thus,
      notwithstanding the provisions of Section 1542, and for the purpose of
      implementing a full and complete release and discharge of all claims, Morales
      expressly acknowledges that this Agreement also includes in its effect, without
      limitation, all claims that Morales does not know or suspect to exist in his
      favor at the time of execution hereof, and that this Agreement contemplates
      the
      extinguishment of any and all such claim(s).

     

    This
      release does not extend to any future claim that Morales may have against Bank
      or Bancorp for:

     

    (a) Payments
      to Morales provided for in this Agreement.

     

    (b) Claims
      by
      Morales for indemnification pursuant to (i) indemnification provisions, if
      any, of the bylaws or charter documents of Morales, (ii) indemnification
      rights of Morales under California or other applicable law,
      (iii) indemnification pursuant to any directors and officers’ liability,
      general liability or other insurance policy carried by Bank or Bancorp, in
      the
      event any third party claims are asserted against Morales by virtue of his
      service as an officer or employee of Bank or Bancorp.

     

    7. No
      Admission of
      Liability.  By entering into this Agreement, neither Bank nor
      Bancorp suggest or admit to any liability to Morales or that either of them
      violated any law or any duty or obligation to Morales.

     

    8. Right
      to an Attorney, Time to
      Consider, Revocation.   Morales acknowledges and agrees
      that he was provided with twenty-one (21) days to consider this Agreement and
      to
      consult with counsel and Bank and Bancorp have advised Morales of his right
      to
      do so.  To the extent that Morales has taken less than twenty-one (21)
      days to consider this Agreement, Morales acknowledges that he has had sufficient
      time to consider this Agreement and to consult with counsel and that Morales
      did
      not desire additional time.  This Agreement is revocable by Morales
      for a period of seven (7) calendar days following Morales’ execution of this
      Agreement.  Thus, the terms of this Agreement will not become
      effective or enforceable for seven (7) calendar days following the date of
      this
      Agreement’s execution by Morales, during which time Morales may revoke this
      Agreement by notifying the undersigned representative of Bank and Bancorp in
      writing by registered letter.  This Agreement becomes effective,
      enforceable and irrevocable on the eighth (8th) day following Morales’ execution
      of this Agreement.

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

     

    9. Cooperation.  Morales
      agrees to cooperate with Bank and Bancorp in connection with disputes between
      Bank and/or Bancorp and third parties.  This cooperation may include,
      but is not limited to, conferring with and assisting Bank and Bancorp in
      preparatory work in litigation matters, providing factual information to Bank
      and Bancorp, and giving depositions and testimony in judicial and administrative
      proceedings.  Morales also agrees to provide such information or
      assistance to Bank and Bancorp as may be requested by Bank and/or Bancorp in
      connection with any regulatory examination by any state or federal regulatory
      authority.  Bank and Bancorp will reimburse Morales for his reasonable
      out-of-pocket expenses incurred in connection therewith, provided that such
      expenses are approved in advance by Bank and Bancorp.

     

    10. No
      Solicitation of Customers or
      Employees.  Morales agrees that for one (1) year after the
      execution of this Agreement, he will not directly or indirectly:  (a)
      call on, or otherwise solicit business from any actual customer of Bank or
      Bancorp of which he is aware,  (b) encourage any customers or vendors
      of Bank or Bancorp to stop using the facilities or services of Bank or Bancorp,
      or (c) encourage any customers or vendors of Bank or Bancorp to use the
      facilities or services of any competitor of Bank or Bancorp, nor will he assist
      others in engaging in such activity.  Morales further agrees that he
      will not, during the period stated above, encourage or solicit for employment
      or
      independent contractor work, any employee of Bank or Bancorp, or any of their
      parent or subsidiary companies, to terminate his or her employment with Bank
      or
      Bancorp for any reason, nor will he assist others to do so.

     

    11. Confidentiality.  Morales
      agrees that neither he nor his agents or representatives will disclose,
      disseminate and/or publicize, or cause or permit to be disclosed, disseminated
      or publicized, the existence of this Agreement, any of the terms of this
      Agreement, or any claims or allegations which Morales could have made or
      asserted against Bank or Bancorp to any person, corporation, association or
      governmental agency or other entity except:  (1) to the extent
      necessary to report income to appropriate taxing authorities; (2) to members
      of
      Morales’ immediate family; (3) to Morales’ attorneys; (4) in response to an
      order of a court of competent jurisdiction or subpoena issued under the
      authority thereof; or (5) in response to any inquiry or subpoena issued by
      a state or federal governmental agency; provided, however, that notice of
      receipt of such judicial order or subpoena shall be immediately communicated
      by
      Morales to Bank and Bancorp telephonically, and confirmed immediately thereafter
      in writing, so that Bank and Bancorp will have the opportunity to assert what
      rights they have to non-disclosure prior to Morales’ response to the order,
      inquiry or subpoena.  Morales also agrees not to disclose or use for
      his own benefit, directly or indirectly, any confidential or proprietary
      information pertaining to the business of Bank or Bancorp and/or any of their
      customers or clients.  Morales acknowledges that he is obligated to
      abide by all previous non-disclosure agreements/proprietary rights agreements
      he
      entered into with Bank or Bancorp.  Morales also agrees to abide by
      all policies of Bank and Bancorp regarding the protection of Bank and Bancorp’s
      confidential and proprietary information.  Additionally, Morales
      agrees not to participate, cooperate or assist any person(s) with respect to
      any
      claim they may have against Bank and/or Bancorp, directly or indirectly,
      specifically or generally.  Any violation of this confidentiality
      provision contained herein by Morales shall be considered a material breach
      of
      this Agreement.

     

    
      
         

      

      
        4

        
          

        

      

      
         

      

    

     

    12. No
      Disparagement.  No party will make any negative, disparaging,
      detrimental or derogatory comments to any third party concerning any other
      party, or any of their current and former officers, directors, shareholders,
      employees, representatives, attorneys and agents, as well as their predecessors,
      parents, subsidiaries, affiliates, divisions, subordinates, supervisors and
      successors in interest.

     

    13. Arbitration.  Any
      and all disputes, controversies or claims of any kind or nature between the
      parties, including without limitation disputes, controversies or claims arising
      under or in any way relating to the interpretation, application or enforcement
      of this Agreement, Morales’ employment with any of the Vineyard Entities, any
      claim for benefits, Morales’ separation of employment from the Vineyard
      Entities, any claim by Morales that he was fraudulently induced to enter into
      this Agreement, or claims relating to the general validity or enforceability
      of
      this Agreement, shall be settled by final and binding arbitration under the
      auspices and rules of the American Arbitration Association or other mutually
      agreed upon alternative dispute resolution service.  Any such
      arbitration must be filed in Riverside County, California, and the laws of
      the
      State of California shall control except where federal law
      governs.  The prevailing party in any such arbitration proceeding
      shall be entitled to reasonable costs and attorney’s fees.  The award
      of the arbitrator is to be final and enforceable in any court of competent
      jurisdiction.

     

    14. Waiver
      and
      Modification.  The failure to enforce any provision of this
      Agreement shall not be construed to be a waiver of such provision or to affect
      either the validity of this Agreement or the right of any party to enforce
      the
      Agreement.  This Agreement may be modified or amended only by a
      written agreement executed by Morales and the undersigned representatives of
      Bank and Bancorp.

     

    15. Integration.
This
      Agreement
      between the parties constitutes a single, integrated written contract expressing
      the entire agreement of the parties hereto relative to the subject matter
      hereof.  No covenants, agreements, representations, or warranties of
      any kind whatsoever have been made by any party hereto.  All prior
      discussions and negotiations have been and are merged and integrated into,
      and
      are superseded by, this Agreement.

     

    16. Regulatory
      Provision.  Any payments made to Employee pursuant to this
      Agreement, or otherwise, are subject to and conditioned upon their compliance
      with 12 U.S.C. § 1828(k) and any regulations promulgated
      thereunder.

     

    17. Severability
      and Savings
      Provision.  In the event that any provision of this Agreement
      should be held to be void, voidable, or unenforceable, the remaining portions
      hereof shall remain in full force and effect.  Additionally, in the
      event that any portion of this agreement is deemed void or unenforceable, the
      parties will be excused from performing that portion of the
      Agreement.

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

     

    18. Governing
      Law.  This
      Agreement shall be construed in accordance with, and be governed by the laws
      of
      the United States, including the rules and regulations of the Office of the
      Comptroller of the Currency and, to the extent federal is not applicable, by
      the
      laws of the State of California, both procedural and substantive.

     

     

    PLEASE
      READ CAREFULLY.  THIS AGREEMENT CONTAINS A RELEASE OF ALL KNOWN AND
      UNKNOWN CLAIMS.

     

    
      	
              
              

              Dated:  January
                23, 2008

            	
              
              

              VINEYARD
                BANK, NATIONAL ASSOCIATION                                                           

            
	 	 By:
              /s/ James G. LeSieur
              III
	 	 
	
              
              

              Dated:  January
                23, 2008

            	
              
              

              VINEYARD
                NATIONAL BANCORP                                                               
                

            
	 	 By:
              /s/ James G. LeSieur
              III
	 	 


    

    I
      have
      carefully read this Agreement and understand that it contains a release of
      known
      and unknown claims.  I acknowledge and agree to all of the terms and
      conditions of this Agreement.  I further acknowledge that I enter into
      this Agreement voluntarily with a full understanding of its terms.

     

    
      	
              
              

              Dated:  January
                23, 2008

            	
              
              

              /s/  Norman
                Antonio Morales

            
	 	 Norman
              Antonio Morales


    

    


    


    
      
         

      

      
        6