Exhibit 10.1


 


AMENDED AND RESTATED SEVERANCE AGREEMENT


 


THIS AMENDED AND RESTATED SEVERANCE AGREEMENT (this “Agreement”) is made and entered into as of May 3, 2005,
by and between National Mercantile Bancorp, a California corporation (the “Company”), and David R. Brown (“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.


 


C.                                     This
Agreement amends and restates in its entirety the Severance Agreement dated November 14,
2002 by and between the Company and Officer.


 


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 or 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:


 


(A)  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 50% 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);


 


(B)  no Person,
other than the Existing Shareholder Group, beneficially owns (within the
meaning of Rule l3d-3), directly or indirectly, more than: (i) 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 (ii) beneficially owns more the
Existing Shareholder Group;


 


(C)  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 l3d-3
in the case of rights to acquire securities) of the then Outstanding Voting Securities
of the Company and has greater beneficial ownership than the Existing
Shareholder Group; 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.


 


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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 immediate family.


 


1.8                                 “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.


 


1.9                                 “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.


 


1.10                           “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 within one year following a Change of
Control, either Officer terminates employment with all members of the Company
Group voluntarily or the Company terminates Officer’s employment Without Cause,
the Company will pay Officer in a lump sum (except as provided below) an amount
(the “Severance Payment”) equal to
the sum of: (i) fifteen 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; and (ii) twice the amount of the bonus, if
any, paid (or payable) to Officer for the fiscal year immediately preceding the
fiscal year in which Officer’s employment terminates. 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.  If Officer’s employment is
terminated by the Company Without Cause, the Severance Payment shall be paid at
the time of termination of the Officer’s employment with the Company.  If Officer’s employment is terminated
voluntarily by Officer, the Severance Payment shall be paid within 30 days
following termination.  Notwithstanding
the foregoing, if as of the date the Severance Payment is due Officer’s bonus
for the preceding fiscal year has not been determined, the Company shall defer
payment of the bonus component of the Severance Payment until such time as
Officer’s bonus shall have been determined, but in no event later than 90 days
following the end of such preceding fiscal year.  Each Change of Control shall give Officer a
separate right to give the notice set forth in the first sentence of this Section 2;
provided that in no event shall Officer be entitled to more than one Severance
Payment.


 


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2.2                                 Notwithstanding
any other provision of this Agreement, the Company shall have no obligation 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, claims for indemnification under
applicable law, the Bylaws of the Company or any Indemnification Agreement
between the Officer and the Company, and rights of Officer 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
for any 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 fifteen 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 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


 


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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 fifteen 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.


 


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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.


 


IN WITNESS WHEREOF, this Agreement has been executed
effective on the day and year hereinabove set forth.


 


 


	
  THE “COMPANY”

  	
  NATIONAL MERCANTILE BANCORP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott A. Montgomery

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  Scott A. Montgomery, President/CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  “OFFICER”

  	
  /s/ David R. Brown

  	
   

  
	
   

  	
  David R. Brown

  
						



 


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