EXHIBIT 10.10
CHANGE IN CONTROL AGREEMENT
This Agreement is made and is effective as of April 27, 2000, by and
between American Commercial Bank ("Company") and Xxxxxx X. Xxxxxxxxx
("Executive").
WHEREAS, Executive is currently employed by the Company in the capacity
as President and Chief Executive Officer, and Executive's background, expertise
and efforts have contributed to the success and financial strength of the
Company; and
WHEREAS, the Company wishes to assure itself of the continued
opportunity to benefit from Executive's services and Executive wishes to serve
in the employ of the Company on a full-time basis for such purposes; and
WHEREAS, the Board of Directors of the Company ("Board") has determined
that the best interests of the Company would be served by setting forth the
benefits which the Company will provide to Executive in the event Executive's
employment is terminated after a Change in Control of the Company (as defined in
paragraph 2) or, as provided in paragraph 6(ii), before a Change in Control of
the Company.
NOW, THEREFORE, in order to effect the foregoing, the parties hereto
wish to enter into an agreement on the terms and conditions set forth below.
This agreement ("Agreement") therefore sets forth those benefits which the
Company will provide to Executive in the event Executive's employment with the
Company is terminated after a "Change in Control of the Company" under the
circumstances described below or, as provided in paragraph 6(ii), before a
Change in Control of the Company. Accordingly, in consideration of the premises
and the respective covenants and agreements of the parties herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. TERM.
(i) If a Change in Control of the Company should occur while Executive
is still an employee of the Company, then this Agreement shall continue
in effect from the date of such Change in Control of the Company for so
long as Executive remains an employee of the Company, but in no event
for more than three years following the consummation of a Change in
Control of the Company; provided, however, that the expiration of the
term of this Agreement shall not adversely affect Executive's rights
under this Agreement which have accrued prior to such expiration.
(ii) If no Change in Control of the Company occurs before Executive's
status as an employee of the Company is terminated, this Agreement
shall expire on such date except to the extent provided in paragraph
6(ii) hereof. Except to the extent provided in paragraph 6(ii) hereof,
prior to a Change in Control of the Company, Executive's employment may
be
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terminated by the Company with or without Cause (as defined in
paragraph 3(iii)), and/or this Agreement may be terminated by the
Company at any time upon written notice to Executive and, in either or
both such events, Executive shall not be entitled to any of the
benefits provided hereunder.
2. CHANGE IN CONTROL. For purposes of this Agreement, a "Change in Control
of the Company" shall be deemed to have occurred if
(A) there shall be consummated (1) any consolidation or merger of the
Company in which the Company is not the continuing or surviving
corporation, or pursuant to which shares of the Company's Common Stock
would be converted in whole or in part into cash, securities or other
property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have
substantially the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (2) any sale,
lease, exchange or transfer (in one transaction or a series of related
transactions) of all or substantially all the assets of the Company, or
(B) the shareholders of the Company shall approve any plan or proposal
for the liquidation or dissolution of the Company, or
(C) any "person" (as such term is used in Sections 13(d)(3) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than Americorp, the Company or a subsidiary
thereof or any employee benefit plan sponsored by Americorp, the
Company or a subsidiary thereof or a corporation owned, directly or
indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of stock of the Company, shall
become the beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act) of securities of the Company representing 51% or more of
the combined voting power of the Company's then outstanding securities
ordinarily (and apart from rights accruing in special circumstances)
having the right to vote in the election of directors ("Voting
Shares"), as a result of a tender or exchange offer, open market
purchases, privately negotiated purchases or otherwise, or
(D) at any time during a period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
of the Company shall cease for any reason to constitute at least a
majority thereof, unless the election or the nomination for election by
the Company's shareholders of each new director during such two-year
period was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such
two-year period, or
(E) any other event shall occur that would be required to be reported
in response to Item 6(e) (or any successor provision) of Schedule 14A
of Regulation 14A promulgated under the Exchange Act.
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If any of the events or circumstances described in subparagraphs (A) - (E),
above, shall occur to or be applicable to Americorp, then such event or
circumstance shall be deemed to also constitute a "Change in Control of the
Company."
3. TERMINATION FOLLOWING CHANGE IN CONTROL. If a Change in Control of the
Company shall have occurred while Executive is still an employee of the Company,
Executive shall be entitled to the payments and benefits provided in paragraph 4
hereof upon the subsequent termination of Executive's employment, within three
years from the consummation of the Change in Control of the Company, by
Executive or by the Company unless such termination is
(a) because of death, "Disability" or "Retirement" (as defined below),
(b) by the Company for "Cause" (as defined below), or
(c) by Executive other than for "Good Reason" (as defined below),
in any of which events Executive shall not be entitled to receive benefits
under this Agreement.
(i) "Disability". If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been deemed "disabled"
because Executive shall have been absent from his duties with the
Company on a full-time basis for six (6) consecutive months and shall
not have returned to full-time performance of Executive's duties within
thirty days after written notice is given Executive, the Company may
terminate this Agreement for "Disability."
(ii) "Retirement". Retirement shall mean the voluntary termination at
age 65 by Executive of his employment for other than "Good Reason" (as
defined below) which termination qualifies as retirement in accordance
with any pension plan adopted by the Company, or in accordance with any
retirement arrangement established with Executive's consent with
respect to Executive; provided, however, that no mandatory retirement,
whether under any pension plan or in accordance with any such other
retirement arrangement, shall constitute Retirement for purposes of
this Agreement, unless Executive has previously consented thereto in
writing.
(iii) CAUSE. Executive's employment shall cease following a Change in
Control upon a good faith finding of Cause by the Board. "Cause"
hereunder means the following:
(A) Executive's personal dishonesty;
(B) Executive's material breach of fiduciary duty involving
personal profit;
(C) Executive's (i) conviction of a felony or of any offense
involving moral turpitude or (ii) willful violation of any
final cease and desist order;
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(D) the willful engaging by Executive in gross misconduct
materially and demonstrably injurious to the Company; or
(E) willful and continuing failure substantially to perform
assigned duties for the Company.
For purposes of this paragraph, no act, nor failure to act, on Executive's part
shall be considered "willful" unless done, or omitted to be done, by Executive
not in good faith and without reasonable belief that Executive's action or
omission was in the best interests of the Company.
Notwithstanding any of the foregoing but subject to paragraph 6(ii) hereof, the
Company can without cause terminate Executive's employment prior to any Change
in Control of the Company in the discretion of the Board of Directors of the
Company.
(iv) "Good Reason". Executive may terminate his employment for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean:
(A) the assignment to Executive of any duties inconsistent
with or a diminution of Executive's positions, duties,
responsibilities and status with the Company immediately prior
to a Change in Control of the Company, or a change in
Executive's titles or offices as in effect immediately prior
to a Change in Control of the Company, or any removal of
Executive from, or any failure to reelect Executive to, any of
such positions;
(B) a reduction by the Company in Executive's base salary in
effect immediately prior to a Change in Control of the Company
or a failure by the Company to increase Executive's base
salary (within fifteen months of Executive's last increase) in
an amount which is substantially similar, on a percentage
basis, to the average percentage increase in base salary for
all executive officers of the Company during the twelve months
preceding Executive's increase;
(C) the failure by the Company to continue in effect any
pension, life insurance, health or accident or disability plan
in which Executive is participating or is eligible to
participate at the time of a Change in Control of the Company
(or plans providing Executive with substantially similar
benefits), except as otherwise required by the terms of such
plans as in effect at the time of any Change in Control of the
Company or the taking of any action by the Company which would
adversely affect Executive's participation in or materially
reduce Executive's benefits under any of such plans or deprive
Executive of any material fringe benefits enjoyed by Executive
at the time of a Change in Control of the Company or the
failure by the Company to provide Executive with the number of
paid vacation days to which Executive is entitled in
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accordance with the vacation policies of the Company in effect
at the time of a Change in Control of the Company;
(D) the failure by the Company to pay Executive an award under
any cash or stock incentive compensation plan or arrangement
in an amount at least equal to that last paid to Executive
under any said plan prior to a Change in Control of the
Company or the failure by the Company to continue any such
incentive plan or arrangement in which Executive is
participating at the time of a Change in Control of the
Company (or to substitute and continue other plans or
arrangements providing Executive with substantially similar
benefits) or the taking of any action by the Company which
would otherwise adversely affect Executive's benefits under
any such plan or arrangement;
(E) the relocation of the Company's principal executive
offices to a location outside Ventura County, or the Company's
requiring Executive to be based anywhere other than the
Company's principal executive offices except for required
travel on the Company's business to an extent substantially
consistent with Executive's general business travel
obligations, or, in the event Executive consents in his sole
discretion to any such relocation of the Company's principal
executive offices, the failure by the Company to pay (or
reimburse Executive for) all reasonable moving expenses
incurred by Executive relating to a change of Executive's
principal residence and secondary residence, if any, in
connection with such relocation and to indemnify Executive
against any loss (defined as the difference between the actual
sale price, net of brokerage fees, of such residence and the
higher of (a) Executive's aggregate investment in such
residence or (b) the fair market value of such residence as
determined by the Company's real estate appraiser realized in
the sale of such residences in connection with any such change
in residence, it being understood that Executive shall also be
reimbursed by the Company for the amount of any federal or
state income tax attributable to such payment or reimbursement
pursuant to the provisions hereof;
(F) any material breach by the Company of any provision of
this Agreement (including, without limitation, paragraph 5);
or
(G) any purported termination of Executive's employment by the
Company which is not effected pursuant to a Notice of
Termination satisfying the requirements of subparagraph (v)
below (and, if applicable, subparagraph (iii) above); and for
purposes of this Agreement, no such purported termination
shall be effective.
The events set forth in (A) - (G) above each being a "Triggering Event." If
Executive elects to terminate for Good Reason, a Notice of Termination must be
delivered within sixty (60) days of the occurrence of a Triggering Event for
such termination to be effective; provided, however, that the failure of
Executive to terminate for Good Reason upon the occurrence of a Triggering Event
shall
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not constitute a waiver of Executive's right to terminate for Good Reason upon
the occurrence of a subsequent Triggering Event.
(v) NOTICE OF TERMINATION. Any termination by the Company pursuant to
subparagraphs (i), (ii) or (iii) above or by Executive pursuant to
subparagraph (iv) above shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement,
a "Notice of Termination" shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon and shall
set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the
provision so indicated.
(vi) DATE OF TERMINATION. "Date of Termination" shall mean
(A) if this Agreement is terminated for Disability, thirty
days after Notice of Termination is given provided that
Executive shall not have returned to the performance of his
duties on a full-time basis during such thirty day period),
(B) if Executive's employment is terminated pursuant to
subparagraph (iv) above, the date specified in the Notice of
Termination,
(C) if Executive's employment is terminated for any other
reason, the date on which a Notice of Termination is given
(or, if a Notice of Termination is not given, the date of such
termination), and
(D) if Executive is entitled to compensation pursuant to
paragraph 5, the date determined pursuant to such paragraph.
4. COMPENSATION DURING DISABILITY OR UPON TERMINATION.
(i) If, after a Change in Control of the Company, Executive shall fail
to perform his duties hereunder as a result of incapacity due to
physical or mental illness, Executive shall continue to receive his
full base salary monthly at the rate then in effect until his
employment is terminated pursuant to paragraph 3(i) hereof (and for any
longer period as may be provided under applicable plans).
(ii) If, after a Change in Control of the Company, Executive's
employment shall be terminated for Cause, the Company shall pay
Executive his full base salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given and the
Company shall have no further obligations to Executive under this
Agreement.
(iii) If, after a Change in Control of the Company, (I) the Company
shall terminate Executive's employment, other than pursuant to
paragraph 3(i), 3(ii) or 3(iii) hereof or by reason of death, or (II)
Executive shall terminate his employment for Good Reason, or (III)
Executive shall be entitled to payments pursuant to paragraph 5, then
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(A) The Company shall pay to Executive as severance pay (and
without regard to the provisions of any benefit plan) in a
lump sum in cash on the fifth day following the Date of
Termination, the following amounts:
(x) Executive's full base salary through the Date of
Termination at the rate in effect at the time Notice
of Termination is given; and
(y) an amount equal to Executive's monthly base
salary at the highest rate in effect during the
twelve (12) month period immediately preceding the
Date of Termination, multiplied by thirty-five (35).
(B) The Company shall pay to Executive, at the same time and
in the same manner as payments are made to Executive under any
pension or retirement plan now or hereafter adopted during the
Term of the Agreement, and any amendments hereto, and any
additional amounts that would have been payable to Executive
under such plans if Executive's Credited Service under such
plans at the Date of Termination had hypothetically been
calculated as if Executive had remained in the employ of the
Company for a period of three years after the Date of
Termination; and
(iv) Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this
paragraph 4 be reduced by any compensation earned by Executive as the
result of employment by another employer after the Date of Termination,
or otherwise.
(v) Except as provided in paragraph 14, the provisions of this
Agreement, and any payment provided for hereunder, shall not reduce any
amounts otherwise payable, or in any way diminish Executive's existing
rights, or rights which would accrue solely as a result of the passage
of time, under any employee benefit plan of the Company, any employment
agreement or other contract, plan or arrangement of the Company, except
to the extent necessary to prevent double payment under any severance
plan or program of the Company in effect at the Date of Termination.
5. SUCCESSOR'S BINDING AGREEMENT
(i) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise and irrespective of
whether such successor be to the Company or Americorp) to all or
substantially all of the business and/or assets of the Company, by
agreement in form and substance satisfactory to Executive, expressly to
assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no
such succession had taken place. Failure of the Company or the
successor to the Company ,as the case may be, to obtain such agreement
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prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle Executive to compensation from the
Company in the same amount and on the same terms as Executive would be
entitled hereunder if Executive terminated his employment for Good
Reason (whether or not Executive terminates his employment), except
that for purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the
Company as herein before defined and any successor to its business
and/or assets as aforesaid which executes and delivers the agreement
provided for in this paragraph 5 or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law. If
Executive received payments pursuant to this paragraph 5 prior to
termination of his employment, Executive shall not be entitled to any
benefits hereunder at the time of any subsequent termination of his
employment.
(ii) This Agreement shall inure to the benefit of, and be enforceable
by, Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
If Executive should die while any amounts would still be payable to
Executive hereunder if Executive had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to Executive's devisee, legatee or
other designee or, if there be no such designee, to Executive's estate.
6. EMPLOYMENT PRIOR TO CHANGE IN CONTROL OF THE COMPANY.
(i) In consideration of the foregoing obligations of the Company,
Executive agrees to be bound by the terms and conditions of this
Agreement and to remain in the employ of the Company during any period
following any public announcement by any person of any proposed
transaction or transactions which, if effected, would result in a
Change in Control of the Company until a Change in Control of the
Company has taken place or, in the opinion of the Board, such person
has abandoned or terminated its efforts to effect a Change in Control
of the Company. Subject to the foregoing, nothing contained in this
Agreement shall impair or interfere in any way with Executive's right
to terminate his employment or, except to the extent provided in
subparagraph (ii) hereof, the right of the Company to terminate
Executive's employment with or without Cause prior to a Change in
Control of the Company. Nothing contained in this Agreement shall be
construed as a contract of employment between the Company and Executive
or as a right for Executive to continue in the employ of the Company,
or, except to the extent provided in subparagraph (ii) hereof, as a
limitation of the right of the Company to discharge Executive with or
without Cause prior to a Change in Control of the Company.
(ii) If (A) after the Company or Americorp has received a written
proposal from a third party to effect a Change in Control of the
Company, (B) Executive is terminated by the Board without Cause prior
to a Change in Control of the Company and (C) the Company or Americorp
thereafter effects a Change in Control of the Company with such third
party within 6 months of such termination of Executive, then, upon the
closing of such Change in
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Control of the Company but subject to the provisions of paragraph 14
hereof, Executive shall receive the lump sum payment provided in
paragraph 4(iii)(A)(y) hereof.
7. NOTICE. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed to the
respective addresses provided by the parties, provided that all notices to the
Company should be directed to the attention of the Chairman of the Board of the
Company, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
8. INDEMNIFICATION. The Company will indemnify Executive to the fullest
extent permitted by the laws of the state of California and to the extent not
inconsistent with the foregoing, the Articles of Incorporation and Bylaws of the
Company as in effect from time to time, in respect of all Executive's services
rendered to the Company and its subsidiaries prior to the Date of Termination.
Executive shall be entitled to the protection of any insurance policies the
Company now or hereafter maintains generally for the benefit of its directors,
officers and employees (but only to the extent of the coverage afforded by the
existing provisions of such policies) to protect against all costs, charges and
expenses whatsoever incurred or sustained by Executive in connection with any
action, suit or proceeding to which Executive may be made a party by reason of
his being or having been a director, officer or employee of the Company or any
of its subsidiaries during his employment therewith.
9. FURTHER ASSURANCES. Each party hereto agrees to furnish and execute
such additional forms and documents, and to take such further action, as shall
be reasonable and customarily required in connection with the performance of
this Agreement or the payment of benefits hereunder.
10. MISCELLANEOUS. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by Executive and such officer as may be specifically designated
by the Board. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of California.
11. VALIDITY. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same
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instrument.
13. ADVICE OF COUNSEL. Executive acknowledges that he has been encouraged
to consult with legal counsel of his choosing concerning the terms of this
Agreement prior to executing this Agreement. Any failure by Executive to consult
with competent counsel prior to executing this Agreement shall not be a basis
for rescinding or otherwise avoiding the binding effect of this Agreement. The
parties acknowledge that they are entering into this Agreement freely and
voluntarily, with full understanding of the terms of this Agreement.
Interpretation of the terms and provisions of this Agreement shall not be
construed for or against either party on the basis of the identity of the party
who drafted the terms or provisions in question.
14. REDUCTION OF PAYMENT. Notwithstanding anything in the foregoing to the
contrary, if any payment pursuant to Section 4 or any other payment provided for
in this Agreement, together with any other payments which Executive has the
right to receive from the Company or Americorp would constitute a "parachute
payment" (as defined in Section 280G(b)(2) of the Internal Revenue Code), the
payments pursuant to this Agreement shall be reduced to the largest amount as
will result in no portion of such payments being subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code; provided, however, that
the determination as to whether any reduction in the payments under this
Agreement pursuant to this proviso is necessary shall be made in good faith by
the Company's accounting firm or if such firm is no longer providing tax
services to the Company to such other advisor as shall be mutually acceptable to
the Company and Executive, and such determination shall be conclusive and
binding on the Company and Executive with respect to the treatment of the
payment for tax reporting purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ATTEST: AMERICAN COMMERCIAL BANK
____________________________ By:_____________________________
Its:____________________________
Print name:_____________________
THE EXECUTIVE
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Witness Xxxxxx X. Xxxxxxxxx
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