Exhibit 99.23
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT is entered into as of June 7, 2001, by and
between JOHN W. IVY (the "Employee") and SAN JOAQUIN BANK, (the "Bank").
1. Change in Control.
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(a) DEFINITION. For all purposes under this Agreement, "Change in
Control" shall mean the occurrence of any of the following events after the date
of this Agreement:
(i) the dissolution or liquidation of the Bank;
(ii) a reorganization, merger or consolidation of the Bank with
one or more corporations as a result of which the Bank is not the
surviving corporation;
(iii) any sale, lease, exchange or other transfer (in one or a
series of transactions) of all or substantially all of the assets of
the Bank;
(iv) any merger or consolidation of the Bank in which the
holders of voting stock of the Bank immediately before the merger or
consolidation will not own fifty percent (50%) or more of the
outstanding voting shares of the continuing or surviving corporation
immediately after such merger or consolidation; or
(v) a change of 50% or more (rounded to the next whole person)
in the membership of the Board of Directors of the Bank within a 12
-month period, unless the election or nomination by stockholders of
each new director within such period was approved by the vote of at
least 75% (rounded to the next whole person) of the directors then
still in office who were in office at the beginning of the 12-month
period.
(b) GOOD REASON. For all purposes under this Agreement, "Good Reason"
shall mean that the Employee:
(i) Has incurred a material reduction in his authority or
responsibility as the Bank's Senior Loan Officer;
(ii) Has incurred a reduction in his "base compensation," bonus
opportunity or benefits and perquisites; or
(iii) Has been notified that his principal place of work will be
relocated by a distance of 50 miles or more.
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For purposes of this Agreement, "base compensation" shall mean annualized
base salary as reflected in the Bank's payroll records as of the date of this
Agreement and as may be subsequently adjusted upward for increases.
(c) SEVERANCE PAYMENT. The Employee shall be entitled to receive a
severance payment from the Bank (the "Severance Payment") if within the first
twenty-four (24) month period after the occurrence of a Change in Control [the
twenty-four (24) month period will be renewed if a separate Change of Control
occurs within twenty-four (24) months of the preceding Change of Control]:
(i) The Employee voluntarily resigns his employment for Good
Reason;
(ii) The Bank terminates the Employee's employment for any
reason other than Cause or Disability ; or
The Severance Payment shall be made in a lump sum not more than five (5)
business days following the date of the employment termination and shall be in
an amount determined under Subsection (d) below. The Severance Payment shall be
in lieu of any other payments, including payments under the Bank's severance
policy, or benefits for periods subsequent to the termination of employment.
For all purposes under this Agreement, "Cause" shall mean:
(i) A willful act by the Employee which constitutes misconduct
or fraud and which has a material adverse effect on the Bank; or
(ii) Conviction of, or a plea of "guilty" or "no contest" to, a
felony.
No act, or failure to act, by the Employee shall be considered "willful" unless
committed without good faith and without a reasonable belief that the act or
omission was in the Bank's best interest.
"Disability" shall have the same meaning as under the Bank's Long-Term
Disability Plan.
(d) AMOUNT. The amount of the Severance Payment shall be equal to the
sum of the following:
(i) 1 1/2 times the Employee's annual rate of base
compensation, as in effect on the date of the employment termination
(or if greater, the date of this Agreement); plus
(ii) 1 1/2 times the highest annual bonus awarded to the
Employee by the Bank during the last three years prior to the date of
the employment termination (regardless of when paid).
(e) INCENTIVE PROGRAMS. No Change in Control with respect to the Bank
shall operate to accelerate the employee's rights to any awards heretofore or
hereafter granted to him under any stock option, stock appreciation rights,
restricted stock, phantom stock or similar plans, or under any annuity, pension,
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profit-sharing, 401(x) plan or other agreements of the Bank, except to the
extent such accelerated vesting may be provided for therein.
(f) NO MITIGATION. The Employee shall not be required to mitigate the
amount of any payment contemplated by this Section 1 (whether by seeking new
employment or in any other manner). Except as expressly provided in Subsection
(f) above, no such payment shall be reduced by earnings that the Employee may
receive from any other source.
2. Successors.
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(a) BANK'S SUCCESSORS. The Bank shall require any successor (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Bank's business
and/or assets, by an agreement in substance and form satisfactory to the
Employee, to assume this Agreement and to agree expressly to perform this
Agreement in the same manner and to the same extent as the Bank would be
required to perform it in the absence of a succession. The Bank's failure to
obtain such agreement prior to the effectiveness of a succession shall be
treated as grounds for the Employee to terminate employment for Good Reason. For
all purposes under this Agreement, the term "Bank" shall include any successor
to the Bank's business and/or assets which executes and delivers the assumption
agreement described in this Subsection (a) or which becomes bound by this
Agreement by operation of law.
(b) EMPLOYEE'S SUCCESSORS. This Agreement and all rights of the
Employee hereunder shall inure to the benefit of, and be enforceable by, the
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
3. Miscellaneous Provisions.
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(a) NOTICE. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. In the case of the Employee, mailed
notices shall be addressed to him at the home address which he most recently
communicated to the Bank in writing. In the case of the Bank, mailed notices
shall be addressed to its corporate headquarters, and all notices shall be
directed to the attention of its Secretary.
(b) WAIVER. No provision of this Agreement shall be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Employee and by an authorized officer of the Bank
(other than the Employee). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
(c) WHOLE AGREEMENT. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not expressly
set forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof.
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(d) NO SETOFF, WITHHOLDING TAXES. There shall be no right of setoff
or counterclaim, with respect to any claim, debt or obligation, against payments
to the Employee under this Agreement. All payments made under this Agreement
shall be subject to reduction to reflect taxes required to be withheld by law.
(e) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California.
(f) SEVERABILITY. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or enforceability
of any other provision hereof, which shall remain in full force and effect.
(g) ARBITRATION OF DISPUTES. All claims, disputes and other matters
in question arising out of or relating to this Agreement or the breach or
interpretation thereof, other than those matters which are to be determined by
the Bank in its sole and absolute discretion, shall be resolved by binding
arbitration before a representative member, selected by the mutual agreement of
the parties, of the Judicial Arbitration and Mediation Services, Inc. ("JAMS"),
presently located at 111 Pine Street, Suite 710 in San Francisco, California. In
the event JAMS is unable or unwilling to conduct the arbitration provided for
under the terms of this paragraph, or has discontinued its business, the parties
agree that a representative member, selected by the mutual agreement of the
parties, of the American Arbitration Association ("AAA"), presently located at
417 Montgomery Street, in San Francisco, California, shall conduct the binding
arbitration referred to in this paragraph. Notice of the demand for arbitration
shall be filed in writing with the other party to this Agreement and with JAMS
(or AAA, if necessary). In no event shall the demand for arbitration be made
after the date when institution of legal or equitable proceedings based on such
claim, dispute or other matter in question would be barred by the applicable
statute of limitations. The arbitration shall be subject to such rules of
procedure used or established by JAMS, or if there are none, the rules of
procedure used or established by AAA. Any award rendered by JAMS or AAA shall be
final and binding upon the parties, and as applicable, upon their respective
heirs, beneficiaries, legal representatives, agents, successors and assigns, and
may be entered in any courts having jurisdiction thereof. The obligation of the
parties to arbitrate pursuant to this clause shall be specifically enforceable
in accordance with, and shall be conducted consistently with, the provisions of
Title 9 of Part 3 of the California Code of Civil Procedure. Any arbitration
hereunder shall be conducted in Bakersfield, California, unless otherwise agreed
to by the parties.
(h) ATTORNEYS' FEES. In the event of any arbitration or litigation
concerning any controversy, claim or dispute between the parties hereto, arising
out of or relating to this Agreement or the breach hereof, or the interpretation
hereof, the prevailing party shall be entitled to recover from the losing party
reasonable expenses, attorneys' fees and costs incurred in connection therewith
or in the enforcement or collection of any judgment or award rendered therein.
The "prevailing party" means the party determined by the arbitrator(s) or court,
as the case may be, to have most nearly prevailed, even if such party did not
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prevail in all matters, not necessarily the one in whose favor a judgment is
rendered.
(i) NO ASSIGNMENT. The rights of any person to payments or benefits
under this Agreement shall not be made subject to option or assignment, either
by voluntary or involuntary assignment or by operation of law, including
(without limitation) bankruptcy, garnishment, attachment or other creditor's
process, and any action in violation of this Subsection (i) shall be void.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Bank by its duly authorized officer, as of the day and year first
above written.
EXECUTIVE: SAN JOAQUIN BANK,
/s/ John W. Ivy By /s/ Bruce Maclin
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John W. Ivy, Senior Vice President Bruce Maclin, Chairman of the Board
By /s/ Bart Hill
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Bart Hill, President and CEO
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