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Exhibit 99.7
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement is made as of the 31
st day of December, 2006, by and between AMERICANWEST
BANK, a state-chartered bank with headquarters in Spokane,
Washington (hereinafter referred to as "Bank") and WADE GRIFFITH,
an individual (hereinafter referred to as "Officer").
RECITALS
WHEREAS, Officer is currently Senior Vice President/Chief
Information Officer of Bank; and
WHEREAS, Officer and Bank entered into that certain Executive
Salary Continuation Agreement dated March 1, 2003 (the "2003
Agreement"), and each desire that any payments made thereunder
comply with Section 409A of the Code, which was enacted
subsequently to the 2003 Agreement; and
WHEREAS, Officer desires to obtain certain assurances that he
will be protected in the manner set forth in this Agreement in the
event of a Change in Control (as defined in Section 1(e), below) of
Bank, and Bank is willing to provide such assurances to Officer in
order to encourage him to maintain continued employment with
Bank;
NOW, THEREFORE, in consideration of the mutual promises set
forth in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
SECTION 1. Definitions . As used in this Agreement,
unless the context otherwise requires, the following terms shall
have the following meanings:
(a) "Aggregate Payments" has
the meaning ascribed to such term in Section 2(e)(1),
below.
(b) "AWBC" means AmericanWest
Bancorporation, the parent holding company of Bank.
(c) "Bank" includes any
Successor.
(d)
"Cause" means any of
the following:
(1) dishonesty or theft;
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(2) conviction of a criminal
offense in connection with the performance of his duties, or any
felony;
(3)
insubordination, gross negligence in the performance of or willful
failure to discharge assigned duties or comply with applicable
policies (including but not limited to a conflict of interest
policy) or banking law;
(4) harassment of fellow employees
or customers;
(5) possession of
unauthorized weapons or firearms (loaded or unloaded) on Bank
premises;
(6) chronic alcoholism or controlled substance abuse,
as determined by a doctor mutually acceptable, and continuing
failure by Officer to commence and pursue with due diligence
appropriate treatment for same in accordance with such
doctor’s recommendations;
(7) failure to
qualify for a required surety bond at any time during his
employment; or
(8) conduct that is
demonstrably and significantly harmful to Bank or AWBC, as
reasonably determined by Bank’s Board of Directors on advice
from legal counsel.
(e)
"Change in Control" means a change "in the ownership or effective
control" or "in the ownership of a substantial portion of the
assets" of Bank or AWBC within the meaning of Section 280G of the
Code; provided , however , that an internal
reorganization of AWBC and its subsidiaries shall not constitute a
Change in Control.
(f)
"Change in Control Benefit" has the meaning ascribed to such term
in Section 2(a), below.
(g)
"Code" means the
Internal Revenue Code of 1986, as amended.
(h) "Confidential Information" has the meaning ascribed to
such term in Section 3(a), below.
(i) "Excess
Parachute Payment" has the meaning ascribed to such term in Section
280G(b)(2)(A) of the Code.
(j)
"Installment Period" has the
meaning ascribed to such term in Section 2(b),below.
(k)
"Restricted Period" means the
one (1) year period immediately following a termination of
Officer’s employment with Bank for any reason.
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(l)
"Successor" means any person, firm, corporation or other entity
that, as a result of a Change in Control, is the surviving bank in
a merger with Bank.
(m)
"Total Compensation" means Officer’s base salary plus bonus,
in each case before salary deferrals.
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SEC. 2. Change in Control
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(a)
Change in Control Benefit . If, following the public
announcement of a proposed Change in Control, Officer remains in
the employ of Bank until the effective date of such Change in
Control (unless earlier termination is mutually agreed to between
Officer and Successor), and the Successor does not offer Officer a
position with Successor:
(1) having duties and responsibilities reasonably
comparable to those performed by him at the time of commencement of
discussions leading to the Change in Control (it being understood
and agreed, however, that Officer’s title, duties and
responsibilities in such position need not be exactly the same as
those with Bank);
(2) in which
Officer’s principal office will be located within a radius of
fifty (50) miles from his principal
office immediately preceding the Change in Control;
(3) with salary and
benefits reasonably comparable to those received by Officer from
Bank over the twelve (12) months immediately preceding the Change
in Control; and
(4) which offer includes Successor’s agreement
that, in the event Officer’s employment with Successor is
terminated without Cause at any time within one (1) year following
the effective date of the Change in Control, Officer will be
entitled to the Change in Control Benefit,
Officer shall be entitled to receive (A) an amount equal to the
Total Compensation paid to Officer by Bank during the twelve (12)
months immediately preceding the effective date of the Change in
Control, (B) immediate acceleration of vesting of all unvested
stock options and/or restricted stock awards previously granted to
Officer by Bank such that all such grants shall fully vest in
Officer as of the effective date of the Change in Control, and (C)
immediate vesting of 100% of the benefits set forth in Paragraph IV
of the 2003 Agreement (collectively, the "Change in Control
Benefit").
b) Payments .
(1) Except
as otherwise provided in paragraph (2) of this subdivision (b) or
paragraph (1) of subdivision (e) of this Section, any payment to
which Officer is entitled pursuant to this Agreement shall be paid
in equal monthly installment payments over the Restricted Period
(the "Installment Period") or, in the event
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Officer is
entitled to such payment for reasons other than a termination of
employment, in a single installment within forty-five (45) days
following the earlier of the effective date of a Change in Control
or the last day on which he performs services as an employee of
Bank, in either case with no percent value or other
discount.
(2) Any portion of
the Change in Control Benefit attributable to the 2003 Agreement,
including payment thereof, shall be governed by the provisions of
that agreement, except as otherwise provided in paragraph
(1) of subdivision (e) of this Section.
(c)
Death; Voluntary Termination . In the event that Officer (i)
dies, (ii) voluntarily terminates his employment prior to the
effective date of the Change in Control (except where such earlier
termination is mutually agreed to between Officer and Successor),
or (iii) is offered employment with Successor which meets the
criteria set forth in Section 2(a) and Officer elects not to accept
s
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