Exhibit 10.9




 




SEVERANCE AGREEMENT




 




THIS SEVERANCE

AGREEMENT (this “Agreement”) is

made and entered into as of 11/13/2002, by and between National Mercantile

Bancorp, a California corporation (the “Company”),

and Hank McCaffrey (“Officer”)

with reference to the following facts:




 




A.            Officer is an officer of the Company

and/or one or more subsidiaries of the Company; and




 




B.            In order to induce Officer to remain

employed by the Company and/or its subsidiaries, the Company is willing to

agree to pay severance to Officer under certain circumstances.




 




NOW,

THEREFORE, in consideration of the foregoing and of the respective covenants

and agreements of the parties herein contained, it is agreed as follows:




 




1.             Definitions.  For purposes of this Agreement, the following

terms when used in this Agreement shall have the meanings set forth below:




 




1.1           “Board”

shall mean the Board of Directors of the Company.




 




1.2           “Cause”

shall mean Officer, after the date of this Agreement (i) has been convicted by

a court of competent jurisdiction of any felony or any criminal offense

involving dishonesty, breach of trust or misappropriation, or has entered a

plea of nolo contendere to such

an offense; or (ii) has committed an act of fraud, embezzlement, theft,

dishonesty or any act which would cause termination of coverage under the

Company’s Banker’s Blanket Bond as to Officer (as distinguished from

termination of coverage as to the Company as a whole); or (iii) has committed a

willful violation of the Code of 

Conduct of any member of the Company Group or any law, rule or

regulation governing the operation of the Company Group which the Board

determines in good faith will likely have or has had a material adverse effect

on the business, interests of reputation of the Company Group or any Member

thereof; or (iv) has willfully refused to perform the duties assigned to him;

or (v) has committed a willful and unauthorized disclosure of material

confidential information regarding the Company Group, which disclosure the

Board determines in good faith will likely have or has had a material adverse

effect on the Company Group or any member thereof.




 




1.3           “Change

of Control” shall mean any transaction or series of related

transactions as a result of which




 




(i)            the Company consummates a

reorganization, merger or consolidation, or sale or other disposition of all or

substantially all of its assets (each a “Business

Combination”), in each case unless

immediately following the consummation of such Business Combination

all of the following conditions are satisfied: (x) Persons, who,




 





























 




immediately prior to such

Business Combination, were the beneficial owners of the Outstanding Voting

Securities of the Company, beneficially own (within the meaning of Rule 13d-3

promulgated under the Exchange Act, directly or indirectly, more than one-third

of the combined voting power of the then Outstanding Voting Securities of the

entity (the “Resulting Entity”)

resulting from such Business Combination (including, without limitation, an

entity which as a result of such transaction owns the Company or all or

substantially all of the Company’s assets either directly or through one or

more subsidiaries); (y) no Person, other than the Existing Shareholder Group,

beneficially owns (within the meaning of Rule 13d-3), directly or indirectly,

more than 20% of the then outstanding combined 

voting power of the Outstanding Voting Securities of the Resulting

Entity, except to  the extent that such

Person’s beneficial ownership of the Company immediately prior to the Business

Combination exceeded such threshold; and (z) at least one-half of the members

of the board of directors of the Resulting Entity were members of the Board at

the time the Board authorized the Company to enter into the definitive

agreement providing for such Business Combination; or




 




(ii)           any Person acquires beneficial

ownership (within the meaning of Rule 13d-3) of more than 20% of the combined

voting power (calculated as provided in Rule 13d-3 in the case of rights to

acquire securities) of the then Outstanding Voting Securities of the Company; provided,

however, that for purposes of this clause, the following acquisitions

shall not constitute a Change of Control: (x) any acquisition directly from the

Company, (y) any acquisition by the Company, (z) any acquisition by any

employee benefit plan (or related 

trust) sponsored or maintained by the Company or any entity controlled

by the Company; or (zz) any acquisition by the Existing Shareholder Group.




 




1.4           “Company

Group” shall mean at any time the

Company and each subsidiary of the Company at such time which is consolidated

with the Company for financial reporting purposes.




 




1.5           “Disability

of Officer” shall mean if Officer is Disabled and such disability

continues for a period of any six months out of a one-year period.  “Disabled”

shall mean Officer’s inability, through physical or mental illness or other

cause, to perform normal and customary duties which Officer is required to

perform for the Company.  In determining

whether Officer is Disabled, the Company may rely upon the written statement

provided by a licensed physician acceptable to the Company.  Officer shall allow examination from time to

time by any licensed physician selected by the Company and agreed to by

Officer.  All such examinations will be

conducted within a reasonable time period.




 




1.6           “Exchange

Act” shall mean the Securities Exchange Act of 1934, as amended, or

any successor statute.




 




1.7           “Existing

Shareholder Group” shall mean Carl R. Pohlad, members of the

immediate family of Carl R. Pohlad, and any affiliated Person of Carl R. Pohlad

or any member of his immediately family.




 




1.8           “Good

Reason” shall mean with respect to Officer (i) Officer being

delegated or assigned material duties by the Board or the Chief Executive

Officer of the




 




2





























 




Company, by a communication in

writing, which are substantially inconsistent with the position and status held

by Officer immediately prior to the effective date of the Change of Control; or

(ii) Officer having had removed by the Board or the Chief Executive Officer of

the Company by a communication in writing such authority and responsibility

which is necessary to carry out the duties of the position held by Officer

immediately prior to the effective date of the Change of  Control; or (iii) Officer having a substantial

and adverse alteration in the nature, status, or prestige of Officer’s

responsibilities due to the action of the Board or the Chief Executive Officer,

which is verifiable by tangible evidence; or (iv) Officer being forced to

relocate permanently to an office more than 25 miles from the location of the

Company’s executive offices as in effect immediately prior to the effective

date of the Change of Control; or (v) Officer having his or her base

compensation reduced by 10% or more from such base compensation in effect on

the date immediately preceding the effective date of the Change of

Control.  Notwithstanding the foregoing,

the loss of one or more titles, and corresponding responsibility(ies), shall

not be deemed to be “Good Reason”

under (i), (ii) or (iii) above provided that the Officer retains at least one

title no less senior than Executive Vice President and Chief Financial Officer

at the Company or at least one subsidiary bank of the Company.




 




1.9           “Outstanding

Voting Securities” of any Person means the outstanding securities of

such Person entitling the holders thereof to vote generally in the election of

directors of such Person.




 




1.10         “Person”

shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange

Act, which definition shall include a "person" within the meaning of

Section 13(d)(3) of the Exchange Act.




 




1.11         “Without

Cause”  shall mean any

termination of Officer’s employment by the Company except for a termination (i)

for Cause, (ii) as a result of the death of Officer, or (iii) as a result of

the Disability of Officer.




 




2.             Severance Payment.




 




2.1           Except as provided in Section 2.2, if

(i) Good Reason exists within one year following a Change of Control, and

Officer gives written notice to the Company within 90 days after the occurrence

of such Good Reason that Officer is terminating his or her employment with the

Company for Good Reason, or (ii) the Company terminates Officer’s employment

Without Cause within one year following a Change of Control, the Company will

pay Officer in a lump sum an amount (the “Severance

Payment”) equal to nine times Officer’s base monthly salary as in

effect at the time of termination or, if greater, immediately prior to the

effective date of the Change of Control. 

The Severance Payment shall be reduced by required deductions for

applicable taxes and other withholdings and for any outstanding obligations

owed by Officer to the Company that are then due and payable, which deductions

and withholdings are specifically authorized by Officer.  The Severance Payment shall be in lieu of

any other severance payments to which Officer would be entitled under the plans

or policies of the Company and any of its subsidiaries.  The Severance Payment will be paid at the

time of termination of the Officer’s employment with the Company.  Each Change of




 




3





























 




Control and each Good Reason

following a Change of Control shall give Officer a separate right to give the

notice set forth in the first sentence of this Section 2.




 




2.2           Notwithstanding any other provision

of this Agreement, the Company shall have no obligations to make the Severance

Payment if such Severance Payment is prohibited by applicable federal or state

law, including without limitation Part 359 of the regulations of the Federal

Deposit Insurance Corporation (12 CFR § 359 et

seq.) or any successor provision.




 




2.3           As a condition to the obligation of

the Company to pay the Severance Payment, the Officer must execute and deliver

a release in form and substance satisfactory to the Company releasing the

Company Group and its directors, officers, employees and agents (“Released Parties”) from any and all claims

the Officer may have against the Released Parties, whether such claims are

known or unknown, absolute or contingent, other than claims under this

Agreement, claims for salary and other compensation and benefits accrued prior

to termination, and rights under employee benefit plans.




 




3.             IRC Provisions.  Notwithstanding any other provision of this

Agreement, if the Company reasonably determines that the payment of the

Severance Payment to Officer would be nondeductible by the Company for federal

income tax purposes because of Section 280G of the Internal Revenue Code of

1986, as amended (the “Code”), the

Severance Payment shall be reduced to an amount which maximizes the Severance

Payment without causing any portion of the same to be nondeductible by the

Company because of Section 280G of the Code. 

Any such reduction shall be applied to the Severance Payment or the

other amounts due to Officer in such manner as Officer may reasonably specify

within 30 days following notice from the Company of the need for such reduction

or, if Officer fails to so specify timely, as determined by the Company.




 




4.             Employee Benefits.  All employee benefits provided by the

Company shall cease upon termination of Officer’s employment, whether for Good

Reason, Without Cause, or for any other reason, and the Company shall have no

further responsibility with respect thereto after such termination; provided,

however, that: (a) nothing contained in this Agreement shall affect any

right Officer may have pursuant to the federal entitlement to continued group

health care coverage as provided in the Consolidated Omnibus Budget

Reconciliation Act of 1985 (“COBRA”)  or any successor legislation or comparable

state law; (b) if Officer is entitled to receive a Severance Payment pursuant

to Section 2 hereof, and if Officer elects under COBRA to continue to receive

any benefits thereunder, the Company shall reimburse Officer for the amount of

such Officer’s COBRA payments for the first six months after such termination;

and (c) nothing shall alter or modify the post termination rights of Officer

under any employee benefit plan (such as the right to exercise vested options

for a specified period under the Stock Incentive Plan).




 




5.             Term.  The Agreement shall commence on the date set

forth above and shall terminate upon 12 months prior written notice to the

Officer.




 




6.             Employment “At Will”.  Neither this Agreement nor the Severance

Payment payable hereunder shall be deemed to limit, replace or otherwise affect

the “at will” nature of




 




4





























 




Officer’s employment with the

Company Group.  Officer’s employment with

any member of the Company Group continues to be for an unspecified term and may

be terminated at will at any time with or without cause or notice by such

member of the Company Group or by Officer (but in the case of Officer, without

the written consent of the Company Officer must terminate his employment with

all members of the Company Group).  This

employment “at-will” relationship cannot be changed absent an express intent as

set forth in an individualized written employment contract signed by both Officer

and the Chief Executive Officer of the Company.




 




7.             Mitigation.  Officer shall have no obligation to mitigate

damages based upon Officer’s termination pursuant to Section 2 of this

Agreement, and the Severance Payment shall not be reduced as a result of

Officer obtaining other employment within nine months of Officer’s termination.




 




8.             Counterparts.  This Agreement may be executed in any number

of counterparts, each of which shall be deemed an original, and all of which,

together, shall constitute one and the same instrument.




 




9.             Partial Invalidity.  Any provision of this Agreement which shall

prove to be invalid, void or illegal shall in no way affect, impair or

invalidate any other provision hereof, and such other provisions shall remain

in full force and effect.




 




10.           Governing Law.  The terms and provisions of this Agreement

shall be governed and construed pursuant to the laws of the State of California

except to the extent governed by federal law.




 




11.           Construction.  Headings at the beginning of each section

are solely for the convenience of the parties and are not a part of this

Agreement.  Whenever required by the

context of this Agreement, the singular shall include the plural and the

masculine shall include the feminine and vice versa.  This Agreement shall not be construed as if it had been prepared

by one of the parties, but rather as if both parties had prepared the

same.  Unless otherwise indicated, all

references to sections are to this Agreement.




 




12.           Integration.  This Agreement represents the entire and

integrated agreement between the Company and Officer regarding the subject

matter hereof and supersedes all prior negotiations, representations or

agreements, either written or oral.




 




13.           Successors and Assigns.  The terms, covenants and conditions herein

contained shall be binding upon and shall inure to the benefit of the heirs,

successors and assigns of the parties hereto.




 




14.           No Waiver.  No waiver by either party of any breach or

default hereunder shall be deemed a waiver of any other breach or default, and

no delay or forbearance by either party hereunder in enforcing any of its

rights or remedies shall be deemed a waiver of any such rights or remedies,

unless such waiver is embodied in a writing signed by the authorized

representative of the party to be bound.




 




5





























 




IN WITNESS

WHEREOF, this Agreement has been executed effective on the day and year

hereinabove set forth.




 




	

  THE

  “COMPANY”


  	

   


  	

  NATIONAL

  MERCANTILE BANCORP


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

  By:


  	

  Scott G. Montgomery


  
	

   


  	

   


  	

  Its:


  	

  President

  & CEO


  
	

   


  	

   


  	

   


  
	

  “OFFICER”


  	

   


  	

  /s/ Scott G.

  Montgomery


  





 




6