Exhibit 10.1


 


Assignment, Assumption and Amendment 

of

EMPLOYMENT AGREEMENT


 


This Assignment,
Assumption and Amendment (the “Amendment”)
of Employment Agreement is made effective as of January 1, 2002 by and
among MERCANTILE NATIONAL BANK, a national banking association organized and
existing under the laws of the United States (“Bank”), National Mercantile Bancorp, a California corporation
(“Bancorp”), and
SCOTT A. MONTGOMERY (“Montgomery”),
with reference to the following facts:


 


A.            In 1996, Bank and Montgomery entered
into an employment agreement pursuant to which Bank employed Montgomery as
President and Chief Executive Officer of Bank.


 


B.            The Employment Agreement was amended
and restated as of January 1, 1999 (the “Employment
Agreement”).


 


C.            Since 1997 Montgomery has also
served as President and Chief Executive Officer of Bancorp, the parent
corporation of Bank.


 


D.            In December 2001, Bancorp acquired
South Bay Bank, N.A.(“South Bay”),
at which time Montgomery became the President and Chief Executive Officer of
South Bay.


 


E.             The parties desire that Bancorp
assume the obligations of Bank under the Agreement and to effect certain
amendments to the Employment Agreement.


 


NOW, THEREFORE,
with reference to the foregoing facts and in consideration of mutual promises
of the parties set forth in this Amendment, Bank, Bancorp and Montgomery hereby
agree as follows:


 


1.             Assignment
and Assumption.  Bank hereby
assigns to Bancorp all of its rights and obligations under the Employment
Agreement, and Bancorp hereby assumes such rights and obligations, but in each
case excluding the indemnification obligations of Bank under Paragraph 4 of the
Employment Agreement.  Montgomery hereby
consents to such assignment and assumption, and agrees that Bank is released
from its obligations under the Employment Agreement except for its
indemnification obligations under Paragraph 4 of the Agreement.  As a result, all references to the “Bank” in
the Employment Agreement shall be changed to “Bancorp” except: (i) under
Paragraph 4 of the Employment Agreement; (ii) in connection with references to
employee benefit plans, insurance and similar matters which are maintained by
Bank and not Bancorp (and for only so long as such plans, insurance and other
matters are so maintained by Bank); (iii) under Paragraphs 6.1, 10.11 and 10.12
of the Employment Agreement; and (iv) where used in this Amendment.


 


2.             Paragraphs
1.2 and 1.3—Employment and Directorships.  Paragraphs 1.2 and 1.3 of the Agreement are amended in their
entirety to read as follows:


 


1.2.          Performance of Duties for
Subsidiaries.  Montgomery agrees to
serve as chief executive officer of such direct and indirect


 

















 


subsidiaries of
National Mercantile Bancorp (“Bancorp”) as the Board of Directors of Bancorp
may from time to time request.


 


1.3           Directorships.  During the term of his employment,
Montgomery shall serve as a director of Bancorp and such direct and indirect
subsidiaries of Bancorp as the Board of Directors may from time to time
request, but shall receive no director’s fees or other remuneration for his
services as a member of said Boards of Directors.


 


3.             Paragraph
2—Term.  Paragraph 2 of the
Employment Agreement is amended in its entirety to read as follows:


 


2.  Term.  Montgomery’s employment under this Agreement
shall commence on January 1, 1999 and shall expire on March 31, 2007;
unless terminated sooner as hereinafter provided (the “term” or “term of
employment”).  This Agreement supersedes
and replaces the Employment Agreement dated June 21, 1996.


 


4.             Paragraph
3.1—Base Salary.  Paragraph 3.1 of the Agreement
is amended in its entirety to read as follows:


 


3.1           Base Salary. 
From January 1, 1999 until December 31, 2001, Bancorp shall pay
Montgomery a semi-monthly salary at an annualized rate of $250,000, less
applicable withholding.  From
January 1, 2002 until March 31, 2007, Bancorp shall pay Montgomery a
semi-monthly salary at the annualized rate of $310,000 (“Base Salary”), less
applicable withholding.  On
December 1, 2002 and each December 1 thereafter, the Base Salary shall be
adjusted by multiplying the Base Salary times the percentage increase, if any
in the Consumer Price Index for All Urban Consumers (“CPI–U”) for the Los
Angeles - Riverside - Orange County, California area as reported by the United
States Department of Labor, Bureau of Labor Statistics for the most recent
12-month period for which statistics are available (“CPI increase”) and then
adding the product to the then existing Base Salary (and such adjusted salary
shall as of the succeeding January 1 become the “Base Salary); provided,
however, that in no event shall the increase in Base Salary in any year
exceed five percent (5%).  A decline in
the CPI-U shall not result in a reduction in the Base Salary; provided, however,
the same CPI increase shall not be the basis of an additional adjustment to the
Base Salary.


 


5.             Paragraph
3.2—Incentive Compensation. 
Paragraph 3.2 of the Agreement is amended in its entirety to read
as follows:


 


3.2           Incentive Compensation


 


3.2.1 
If Bancorp has positive net income before income tax provision (a
“Pretax Profit”) during any calendar year commencing 1999


 


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through and including 2001,
Montgomery shall receive an incentive bonus in an amount equivalent to five
percent (5%) of such Pretax Profit for that calendar year, less applicable
withholding.  Such incentive bonus shall
be paid, if earned, on or before April 1 of the year following the year during
which the applicable Pretax Profit was earned. 
Additionally, in the event the Bancorp has a Pretax Profit and a return
ratio of at least one and one-half percent (1.5%) of Pretax Profit to assets
during a calendar year, the Board of Directors shall award Montgomery an
additional incentive bonus in an amount equivalent to two percent (2%) of such
Pretax Profit for that calendar year, less applicable withholding.  Such additional incentive bonus shall be
paid, if earned, on or before April 1 of the year following the year during
which the applicable Pretax Profit was earned.


 


3.2.2 
If Bancorp has positive “Pretax Profit” during any calendar year during
the term of Montgomery’s employment commencing with calendar year 2002,
Montgomery shall receive an incentive bonus in an amount equal to 3% of the
first $3 million of such Pretax Profit, plus 4% of the next $2 million of
Pretax Profit, plus 5% of any Pretax Profit in excess of $5 million; provided,
however, the incentive bonus in any year shall not exceed Montgomery’s
Base Salary for such year.


 


3.2.3 
Montgomery understands and agrees that nothing in this Agreement is
intended to create or imply any right on his part to receive, or duty on the
part of Bancorp to pay, a bonus or incentive compensation for any calendar year
in which Bancorp fails to achieve a Pretax Profit; provided, however,
that if Bancorp fails to achieve a positive Pretax Profit during any calendar
year during the term of Montgomery’s employment, Bancorp’s Board of Directors
may, in its sole and absolute discretion, award Montgomery a discretionary
incentive bonus in an amount it deems appropriate under the circumstances,
taking into account such factors as Montgomery’s performance of his duties, the
operating results and financial condition of Bancorp, and the economic climate
within which Bancorp operated during the year.


 


6.             Paragraph
8.2.2.  Paragraph 8.2.2 is
amended in its entirety to read as follows:


 


8.2.2 
Bancorp may terminate Montgomery’s employment hereunder at any time for
cause.  For purposes of this Agreement,
the term “cause” shall mean, (a) any act of dishonesty, unauthorized disclosure
of confidential information or fraud by Montgomery in the performance of his
duties hereunder; (b) the commission of a felony involving theft or fraud of
any kind; (c) the commission of a fraud or misappropriation or embezzlement of
property of the Bancorp Group or any customer of the Bancorp Group; (d) a
willful and material breach by Montgomery of obligations under this Agreement,
all (a, b, c and d) with or without prosecution or conviction; (e) the
inability of any member of the Bancorp Group to secure a bond for the services
of Montgomery, or Montgomery


 


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engaging in conduct that would
preclude any member of the Bancorp Group’s ability to bond Montgomery; or (f) a
written order or directive from the Office of the Comptroller of the Currency
or the Board of Governors of the Federal Reserve System ordering the removal of
Montgomery as an executive officer or director of any member of the Bancorp
Group.  For purposes of this Agreement,
the “Bancorp Group” shall mean Bancorp and any direct or indirect subsidiary
depository institution of Bancorp.


 


7.             Paragraph
8.3.3.  With respect to the
clause “the Bank [now Bancorp] substantially and adversely changes Montgomery’s
status, title, position or responsibilities,” it is understood that this refers
to Montgomery’s status, title, position and responsibilities as Chief Executive
Officer and President of Bancorp and not any subsidiary or subsidiaries of
Bancorp.


 


8.             Paragraph 8.3.4.  Paragraph 8.3.4 of the Employment
Agreement is amended to add the words “or Paragraph 8.5.2 below”
immediately after the words “Paragraph 8.3.3 above.”


 


9.             Paragraph
8.3.7.  A new Paragraph 8.3.7
is added to the Employment Agreement to read as follows:


 


8.3.7        If
Montgomery’s employment is terminated pursuant to Paragraph 8.1, by Bancorp
under Paragraphs 8.2.1 or 8.2.3, or by Montgomery under the circumstances
described in Paragraph 8.3.3, and Bancorp has a positive Pre-tax Profit for the
calendar year in which his termination of employment occurs, Montgomery shall
be entitled to additional severance compensation in an amount equal to: (a) the
amount of incentive compensation he would have earned under Paragraph 3.2.2 had
he been employed for the full calendar year, multiplied by (b) a fraction, the
numerator of which is the number of days during the calendar year during which
he was employed by Bancorp and the denominator of which is the number of days
in the calendar year.  Such additional
severance shall be paid, if earned, on or before April 1 of the year
following the calendar year in which Montgomery’s employment terminates.


 


10.           Paragraph
11—Change of Control Payment.  A
new Paragraph 11 is added to the Employment Agreement to read as follows:


 


11.           Change
of Control


 


11.1         For
the purposes of this Agreement, the following terms shall have the meanings set
forth below:


 


11.1.1 “Affiliate” shall mean, with respect
to any Person, any Person that, directly or indirectly, controls, is controlled
by or is under common control with such Person.  For the purposes of this definition, “control” (including, with
correlative meanings, the terms “controlled by” and “under common control
with”) shall


 


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mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or voting equity interests.


 


11.1.2 A “Change of Control” shall be deemed
to have occurred in any of the following instances:


 


(i)                                     The sale by
Bancorp of all or substantially all of its assets to any Person, but not a sale
to the Existing Shareholder Group if the purchaser assumes all of the
obligations of Bancorp under this Agreement (with the effect that Montgomery
becomes the Chief Executive Officer of the purchaser);


 


(ii)                                  A merger or
consolidation of Bancorp with any other Person if the shareholders of Bancorp
immediately prior to such merger or consolidation beneficially own shares
representing less than 50% of the voting power in the election of directors of
the surviving entity immediately following such merger or consolidation, but
excluding a merger or consolidation with an entity which is a member of the
Existing Shareholder Group; or


 


(iii)                               A Person other than the
Existing Shareholder Group acquires beneficial ownership of shares representing
35% or more of the voting power in the election of directors of Bancorp or its
successor or, if Bancorp or its successor is involved in a reorganization in
which it becomes a subsidiary of another corporation, the ultimate parent
corporation of Bancorp or its successor; or


 


(iv)                              any other transaction,
although in a different form, accomplishes substantially the same result as
(i), (ii) or (iii).


 


11.1.3 “Change of Control Payment” shall mean
a lump-sum payment equal to 18 months salary at the Base Salary in effect on
the date of termination of Montgomery’s employment.


 


11.1.4 “Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended, or any successor statute.


 


11.1.5 “Existing Shareholder Group” shall
mean (i) Carl R. Pohlad, Eloise O. Pohlad, James O. Pohlad, Robert C. Pohlad
and William M. Pohlad; (ii) members of the immediate family of the


 


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Persons in subparagraph (i);
and (iii) Affiliates of Persons listed in subparagraphs (i) or (ii).


 


11.1.6 “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.


 


11.2         If
the Company terminates Montgomery’s employment without cause and within 12
months thereafter a Change of Control occurs, within 30 days following such
Change of Control, Bancorp shall pay to Montgomery a lump sum amount equal to
amount to which Montgomery would thereafter be entitled under Paragraph 8.3.3
of this Agreement; in other words, the remaining obligation of Bancorp under
Paragraph 8.3.3. shall be accelerated (and Bancorp shall have no obligation
under Paragraph 8.3.3 of this Agreement for payments accruing after the Change
of Control).


 


11.3         If
a Change of Control occurs and within 12 months thereafter Montgomery’s
employment is terminated without cause, within 30 days following such
termination, Bancorp shall pay to Montgomery the Change of Control Payment (and
while the Change of Control Payment shall be without reduction for salary and
other compensation accruing following the Change of Control and prior to
termination of employment, Bancorp shall have no obligation to make any payment
under Paragraph 8.3.3 of this Agreement).


 


11.4         If
a Change of Control occurs, Montgomery shall have the right to terminate his
employment with Bancorp at any time after six months and prior to 12 months
following the Change of Control.  If
Montgomery so terminates his employment, within 30 days thereafter, Bancorp
shall pay to Montgomery the Change of Control Payment (and Bancorp shall have
no obligation to make any payment under Paragraph 8.3.3).


 


11.5         In
the event Montgomery is entitled to a Change of Control Payment under Paragraph
11.2, 11.3 or 11.4 of this Agreement, Bancorp shall also pay to Montgomery: (a)
at the time of the Change of Control Payment: (i) any bonus which had previously
been awarded to Montgomery under Paragraph 3.2.3 of this Agreement but which
had not been paid; and (ii) amount sufficient to pay for all employee benefits
to which Montgomery may be entitled under COBRA for a period of twelve months
following such termination; and (b) by April 1 of the year following year in
which Montgomery’s employment terminates,


 


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additional severance
compensation in the amount determined in accordance with Paragraph 8.3.7 of
this Agreement.


 


11.           Paragraph
10.7.  Paragraph 10.7 shall
be amended in its entirety to read as follows:


 


10.7  Acknowledgment
– Montgomery hereby acknowledges that this Agreement is, from the outset,
without liability to, or recourse against, any officer or director of any
member of the Bancorp Group or any subsidiary thereof and that, except with
respect to Bank’s indemnity under Paragraph 4, his sole recourse under this
Agreement shall be against Bancorp.


 


12.           Except as amended pursuant to this
Agreement, all other terms, conditions, promises and undertakings set forth in
the Agreement are hereby ratified and shall remain in full force and effect
until the termination of the Agreement as provided therein.


 


IN WITNESS
WHEREOF, Bank and Bancorp have caused this Amendment to be executed by its duly
authorized officers, and Montgomery has duly executed this Agreement, to be
effective as of January 1, 2002.


 


	
  MERCANTILE
  NATIONAL BANK

  	
  NATIONAL
  MERCANTILE BANCORP

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ SCOTT A.
  MONTGOMERY

  	
   

  	
   

  
	
  SCOTT A.
  MONTGOMERY

  	
   

  
								



 


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