EMPLOYMENT AGREEMENT
Exhibit
10.38
AGREEMENT
dated as of
this November 15, 1996, by and between COMMERCE NATIONAL INSURANCE SERVICES,
INC. (“Commerce”), a New Jersey business corporation, and Xxxxxx X. Xxxxxxxx,
III (“Employee”).
B
A C
K G R O U N D
Employee
is President and Chief Executive Officer of Keystone National Companies, Inc.
("Key"). Commerce Bancorp, Inc.
(“COBA”)
and Employee have entered into an agreement in which COBA will acquire all
of
the capital stock of Key. Commerce
is an indirect wholly-owned subsidiary of COBA. Employee
has been instrumental in the successful development and expansion of the
business of Key and COBA has ·determined that the future services of Employee
are essential to Commerce and COBA’s acquisition
of the capital stock of Key. Accordingly, the Board of Directors of COBA wishes
to have Employee's services available to Commerce for five years from the
closing date of the acquisition of the capital stock of Key by COBA and has
made
the execution of this Agreement by Employee a condition precedent to
COBA's
obligation to close on its acquisition of the capital stock of Key.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, the parties agree as
follows:
1.
Employment
and Term of Employment.
1.1
Effective as of the closing date of the acquisition of all of the capital stock
of Key by
COBA,
Commerce offers Employee employment, and Employee hereby accepts such
employment, subject to all the terms and-conditions of this Agreement, for
a
term of five years, subject, however, to automatic renewal and extension as
set
forth below and to Commerce's and Employee's right to terminate his employment
hereunder as set forth herein. Notwithstanding anything herein provided to
the
contrary, beginning on the third anniversary date of this Agreement and on
each
subsequent anniversary date of this Agreement thereafter, this Agreement and
Employee's employment hereunder shall automatically be renewed and extended
(upon the same terms and conditions) for a new three year term unless written
notice by either party is given pursuant to Section 1.2 hereof. As used
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hereinafter
“Term” includes the original five year period as well as any renewed or extended
periods as provided for herein.
1.2
Either party may terminate this Agreement beginning on the second anniversary
date of this Agreement and on any anniversary date of this Agreement thereafter
by giving to the other party written notice thereof at least ninety days prior
to any such anniversary date. As a result of the foregoing notice being given
to
either party hereunder, the Term will have three years remaining from the
applicable anniversary date, subject to the terms and conditions set forth
herein.
2.
Services
and Duties
Commerce
agrees to employ Employee during the Term as President and Chief Executive
Officer of Commerce. Employee agrees to accept such employment, and to devote
his full time and efforts to the business and affairs of Commerce and to use
his
best efforts to promote the interests of Commerce. Employee shall have such
executive responsibilities, duties and authorities as may from time to time
be
assigned to Employee by the Commerce Board. Employee agrees that during his
employment hereunder, he will not be employed by, participate or engage in,
or
be a part of, in any manner, directly or indirectly, the affairs of any other
business enterprise, venture or occupation,
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except
for the purpose of making passive investments and aside from those other
business enterprises, ventures or relationships previously disclosed in writing
to and approved by COBA, without COBA's express prior written consent. Employee
shall serve, without additional compensation, as a director and/or committee
member of Commerce if so appointed or elected. During the Term, employee shall
be governed by and be subject to all COBA and/or Commerce rules and regulations
whether written or oral which are applicable to employees in general.
3.
Compensation.
3.1
Commerce
shall pay Employee for all services to be rendered by him hereunder and for
all
positions held by him during the Term, the following compensation, payable
at
regular intervals in accordance with Commerce’s normal payroll practices now or
hereafter in effect. During the Term of his employment, Employee shall be paid
a
“base salary” at the rate of not less than $300,000 per year, subject to an
annual review and subject to such upward adjustments as may be deemed
appropriate by the Commerce Board of Directors (the “Board”)
or a
designated committee thereof. For purposes of this Agreement, a
“year”
shall be
deemed to commence on the closing date of the acquisition of all of the capital
stock of Key by COBA, and on
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that
date
of each calendar year hereafter; compensation for a portion of a year shall
be
pro-rated. The Board or such committee may recommend an increase in salary
for
Employee hereunder, but shall have no obligation to do so. Base salary once
increased by the Board or a committee thereof may not be decreased.
3.2
Commerce
will, during the Term of his employment, reimburse Employee for all expenses
incurred by Employee which Commerce determines to be reasonable and necessary
(in accordance with its normal reimbursement practices now or hereafter in
effect) for Employee to carry out his duties under this agreement.
3.3 During
the Term, in addition to “base salary” as set forth in Section 3.1 hereof,
Employee shall be entitled to a mutually agreed incentive bonus based on the
performance of Commerce which incentive bonus Commerce and Employee agree to
negotiate in good faith.
4.
Plans
and Employee Benefits.
4.1
During the Term of his employment, Employee shall be entitled to participate
in
any and all bonus programs, incentive compensation plans, stock option plans
or
similar benefit or compensation programs now or hereafter in effect (including
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COBA's
Stock Option Plans,
Employee
Stock Ownership Plan ("ESOP") and Executive Supplemental Retirement Plan) which
are generally made available from time to time to, and to the same extent as,
executive officers of COBA. For purposes of the eligibility and vesting
provisions of the foregoing COBA employee benefit plans,
Employee's fourteen years of employment with Key shall be considered as fourteen
years of employment with Commerce. For any period less than a full year during
the Term,
Employee
shall receive an amount equal to the pro rated portion of the compensation
payable pursuant to such plan or program.
4.2
During the Term of his employment,
Employee
shall also be entitled (a) to participate in all employee benefits as in effect
from time to time which are generally available to COBA's salaried officers
including, without limitation, medical, dental and hospitalization coverage,
life insurance coverage and disability coverage,
and (b)
to such other employee benefits as the Board, or a committee thereof, shall
deem
appropriate provided such benefits are consistent with those that Employee
currently enjoys including without limitation use of an automobile and paid
holidays and vacations.
4.3.
During the Term of his employment, Commerce will provide Employee with a
"country club membership" in the
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organization
of his choice, and will reimburse Employee for all reasonable and necessary
expenses associated with such membership, including all membership fees and
dues.
During
his employment under this Agreement, Commerce shall also reimburse Employee
for
all additional reasonable and necessary expenses Employee incurs in connection
with such membership that are related to the business of Commerce or COBA
conducted at this organization.
5.
Termination
by Commerce for Cause.
5.1
Commerce shall have the right at any time to terminate Employee's employment
hereunder, for cause, on thirty days' prior- written notice to Employee.
For
purposes of this Agreement, the term “for cause”
shall be
deemed to mean only the following:
(i)
If at
any time during the Term, Employee is indicted for, convicted of or enters
a
plea of guilty or nolo contendere to, a felony, a crime of falsehood or a crime
involving fraud, moral turpitude or dishonesty or his license to sell insurance
in the State of New Jersey is revoked, lost, suspended or similarly affected;
or,
(ii)
If
at any time during the Term, Employee willfully violates any of the covenants
or
provisions of this Agreement including without limitation the willful failure
of
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Employee
to perform his duties hereunder or to perform the instructions of the Board
after written notice of such instructions (other than any such failure resulting
from Employee's incapacity due to illness or disability) or Employee engages
in
any conduct materially harmful to either COBA's or Commerce’s business, and in
either case fails to cease such conduct or correct such conduct, as the case
may
be, within thirty days subsequent to receiving written notice from the Board
advising Employee of same (which conduct shall be specifically set forth in
such
notice).
If
Employee's employment shall terminate for cause, Commerce shall pay Employee
his
full base salary through the date of termination at the rate in effect at the
time notice of termination is given and Commerce shall have no further
obligations to Employee under this Agreement other than to pay Employee such
other compensation as may be due Employee pursuant to Sections 3 and 4 hereof,
including their subsections.
6.
Disability
and Death.
6.1
If
Employee becomes permanently disabled during the Term while employed hereunder,
Commerce shall compensate Employee for the balance of the then Term at a rate
equal to 70% of his base annual salary at the time he became permanently
disabled.
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Commerce
agrees that it will make the payments due under this Section 6.1 on the first
day of each month, commencing with the first day of the month following the
month in which Employee is deemed to be permanently disabled, in an amount
equal
to 1/12 of 70% of Employee's base annual salary at the time he is deemed to
be
permanently disabled. Such payments shall be reduced each month, however, by
the
amount of any disability payments made to Employee under any COBA or Commerce
sponsored disability insurance plan. The amount of the reduction under the
preceding sentence shall be computed as if Employee had elected to receive
monthly payments of disability benefits (regardless of the actual payment
frequency). If Employee becomes permanently disabled as provided in this Section
6, he shall nonetheless continue, after becoming so disabled until the end
of
the then Term, to be entitled to receive at Commerce's expense such group
hospitalization coverage, life insurance coverage and disability coverage as
is
generally made available from time to time to executive officers of COBA, if
and
to the extent permitted by the respective insurers of such coverage. Until
such
time as Employee is deemed to be permanently disabled, Employee shall continue
to receive his full base salary and other compensation
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and
employee benefits due him under Sections 3 and 4 hereof, including their
subsections.
6.2
For
purposes of this Agreement, Employee shall be deemed to have become "permanently
disabled” upon his failure to render services of the character contemplated by
this Agreement, because of his physical or mental illness or other incapacity
beyond his control, other than his death, for a continuous period of 6 months,
or for shorter periods aggregating more than 9 months in any 18
consecutive
months.
6.3
If
Employee dies during the Term while employed hereunder, then his employment
and
his rights to compensation hereunder shall automatically terminate at the close
of the calendar week in which death occurs, and in addition to his full
base
salary to the date of termination and any compensation due him as provided
in
Sections 3 and 4 hereof, including their subsections, Commerce shall pay to
such
person as Employee shall designate in a notice filed with Commerce or, if no
such person shall be designated, to his estate, as a lump sum death benefit,
an
amount equal to the product of (A) Employee's average annual base salary in
effect during the twenty-four months immediately preceding his death and (B)
two. The foregoing death benefit shall be in addition to any amount payable
under any group life
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insurance
program maintained by COBA or any of its subsidiaries.
Termination
by Commerce
without Cause and Termination for Good Reason.
7.1.
If
Commerce shall terminate Employee's employment other than for cause or as
provided in Section 1.2 hereof then:
(i) Commerce
shall pay to Employee his full base salary through the date of termination
and
any compensation when due him as provided in Sections 3 and 4 hereof including
their subsections; and
(ii)
In
lieu of any further salary payments to Employee for a period subsequent to
the
date of termination,
Commerce
shall pay as severance pay to Employee a lump sum severance payment (the
“Severance Payment”)
equal
to the amount of Employee's base salary which is in effect on the date of
termination and which would have been paid to Employee between the date of
termination and the end of the then Term had Employee continued to be employed
by Commerce to the end of the then Term.
7.2
If
Employee shall terminate his employment hereunder for “Good Reason" (as defined
in Section 8.2 hereof) then:
(i)
Commerce shall pay to Employee his full base salary through the date of
termination and any compensation when
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due
him
as provided in Sections 3 and 4 hereof including their subsections; and
(ii) In
lieu
of any further salary payments to Employee for a period subsequent to the date
of termination, Commerce shall pay as severance pay to Employee a lump sum
severance payment (the “Severance Payment”) equal to four times Employee’s
average annual base salary in effect during the twenty-four months immediately
preceding such termination.
7.3
Upon
termination of Employee’s employment as set forth in either Section 7.1 or 7.2
hereof, Commerce shall promptly determine the aggregate present value pursuant
to Section 280G(d) (4) of the Internal Revenue Code of 1986, as amended (the
“Code”) of all amounts payable to Employee under this Agreement, and of all
other amounts payable to Employee upon or by reason of his termination which
are
determined in good faith by Commerce to be “parachute payments” (as defined in
Section 280G(b) (2) of the Code and the regulations promulgated thereunder)
made
pursuant to agreements or plans which are subject to Section 280G. Commerce’s
determination of present value and of other amounts constituting “parachute
payments” is binding; provided that if Employee obtains an opinion of counsel
satisfactory to Commerce or an Internal Revenue Service ruling to the effect
that the
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method
of
determining present value was improper or that specified payments did not
constitute “parachute payments” calculations will be made in accordance with
such opinion or ruling. In the event the aggregate present value of all benefits
under this Agreement and·other “parachute payments”
is equal
to or in excess of 300% of Employee’s “base amount”
as
defined in Section 280G(b) (3) (A) and the regulations thereunder, Employee
waives the right to “parachute payments”
sufficient to reduce the present value of·all such payments to 299% of the “base
amount”
Employee
shall have the right to designate those benefits which shall be waived or
reduced in order to comply with this provision but failing designation by
Employee, Commerce may designate those benefits which may be waived or reduced.
If it is established pursuant to a final determination of a court of competent
jurisdiction or an Internal Revenue Service proceeding that, notwithstanding
the
good faith of Employee and Commerce in applying the terms of this Section 7,
the
aggregate “parachute payments”
paid to
or for Employee's benefit are in an amount that would result in any portion
of
such “parachute payments”
not
being deductible by Commerce or any affiliate by reason of Section 280G of
the
Code, then Employee shall have an obligation to pay Commerce upon demand an
amount equal to the sum of (I) the
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excess
of
the aggregate "parachute payments" paid to or for Employee's benefit without
any
portion of such "parachute payments" not being deductible by reason of Section
280G of the· Code and (ii) interest on the amount set forth in clause (I) above
at the applicable federal rate (as defined in Section 1274(d) of the Code)
from
the date of Employee's receipt of such excess until the date of such payment.
7.4
In
addition to the other compensation set forth in either Section 7.1 or 7.2
hereof, upon termination of Employee's employment as set forth in either Section
7.1 or 7.2 hereof, Employee shall be entitled to the following benefits from
Commerce:
(i)
For a
period of one year following the date of termination, reimbursement for all
reasonable expenses incurred by Employee in connection with the search for
new
employment, including, without limitation, those of a placement agency or
service; provided,
however,
in no
event shall Commerce be obligated to reimburse Employee hereunder in excess
of
1/3 of his base salary on the date of termination;
(ii)
For
a period of one year following the date of termination, reimbursement for all
reasonable relocation expenses incurred by Employee in connection with securing
new employment;
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provided,however,
in no event shall Commerce be obligated to reimburse Employee hereunder in
excess of 1/3 of his base salary on the date of termination; and
(iii) Following
the date of termination, Employee shall be entitled to participate in all COBA
or Commerce medical, dental, disability, hospitalization and life insurance
benefits for a period of three years except that should subsequent employment
be
accepted during the three year period following the date of termination,
continuation of any medical, dental, disability, hospitalization and life
insurance benefits will be offset by coverages provided through Employee’s
subsequent employer.
7.5 Except
as
provided in this Section 7, nothing herein contained shall affect or have any
bearing on Employee’s entitlement to other benefits under any plan or program
providing benefits by reason of termination of employment.
7.6 Employee
shall have the right to terminate his employment hereunder for “Good Reason” (as
defined in Section 8.2 hereof) if he shall first give Commerce not less than
thirty days written notice of his intention to so terminate his employment
specifying the reason(s) for such termination and the date of termination,
and
thereafter Commerce shall not have cured or
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remedied
the reason(s) for such termination prior to the date of termination set forth
in
such notice.
7.7
Anything in this Agreement to the contrary notwithstanding, Employee shall
have
the right to terminate his employment hereunder but not his obligations under
Section 9 hereof which obligations shall be deemed in all circumstances to
survive the termination of his employment hereunder, if he shall first give
Commerce not less than thirty days written notice. If Employee exercises this
right within the first five years of his employment, he shall with such notice
remit to Commerce a dollar amount equivalent to the sum of $1,000,000 less
the
sum of $l,000,000 multiplied by a fraction where (a) the numerator represents
the number of full months Employee has worked for Commerce during the first
five
years of his Employment and (b) the denominator is sixty. Notwithstanding
anything in this Agreement to the contrary, Section 7.7 shall become null and
void upon Employee's death or disability as set forth in Section 6 above.
7.8
Anything in this Agreement to the contrary notwithstanding, Employee shall
not
be required to mitigate the amount of any payment provided for in this Agreement
by seeking other employment.
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8.
Change
in Control and Good Reason.
8.1
For
purposes of this Agreement, a "change of control" of Commerce shall mean a
change in control of Commerce or COBA of a nature that would be required to· be
reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act
of
1934, as amended (the "Exchange Act"), as enacted and enforced on the date
hereof, whether or not Commerce or COBA is subject to such reporting
requirement; provided that without limitation such a change in control shall
have been deemed to conclusively occur when any of the following events shall
have occurred without Employee's prior written consent:
(i)within
any period of two consecutive years during the Term, a change in at least a
majority of the members of the COBA or Commerce Board or the addition of five
or
more new members to the COBA or Commerce Board unless such change or addition
occurs with the affirmative vote in writing of Employee in his capacity as
a
director or a shareholder; or
(ii)
a
Person or group acting in concert as described in Section 13(d) (2) of the
Exchange Act holds or acquires beneficial ownership within the meaning of Rule
13d-3 promulgated under the Exchange Act of a number of common shares of COBA
or
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Commerce
which constitutes either (a) more than fifty percent of the shares which voted
in the election of directors of COBA or Commerce at the shareholders' meeting
immediately preceding such determination or (b) more than thirty percent of
COBA
or Commerce's outstanding common shares. For purposes of this Section 8.1(ii)
(b) hereof, unexercised warrants or options or unconverted nonvoting securities
shall count, for this purpose, as constituting beneficial ownership of COBA
or
Commerce’s common shares into which the warrants or options are exercisable or
the nonvoting convertible securities are convertible, notwithstanding anything
to the contrary contained in Rule 13d-3 of the Exchange Act.
8.2
For
purposes of this Agreement, "Good Reason" shall mean (i) a change in control
of
Commerce (as defined in Section 8.1 hereof) and within three years thereafter,
without Employee’s consent, the nature and scope of Employee's authority with
Commerce or a surviving or acquiring Person are materially reduced to a level
below that which he enjoys on the date hereof, the duties and responsibilities
assigned to Employee are materially inconsistent with that which he has on
the
date hereof, the employee benefits which Commerce provides Employee on the
date
hereof or at any time hereafter are materially reduced,
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Employee's
position or title with Commerce or the surviving or acquiring Person is reduced
from his current position or title with Commerce, or any relocation or transfer
of Commerce's principal executive offices to a location more than fifty miles
from Employee’s principal residence on the date hereof without Employee's
consent; (ii) Commerce materially breaches this Agreement or COBA materially
breaches its guarantee of this Agreement; or (iii) the failure or refusal of
any
successor to Commerce to assume all duties and obligations of Commerce under
this Agreement or the failure or refusal of any Successor to COBA to assume
COBA’s guarantee of this Agreement.
9.
Confidential
Information and Non-Competition.
9.1
Employee covenants and agrees that he will not, during the Term of his
employment or at any time thereafter, except with the express prior written
consent of the Board or as otherwise required by law provided Commerce is given
prior written notice of such required disclosure, directly or indirectly
disclose, communicate or divulge to any Person other than authorized Commerce
or
COBA personnel and/or agents, or use for the benefit of any Person other than
authorized Commerce or COBA personnel and/or agents, any knowledge or
information with respect to the conduct or details of Commerce's or COBA's
business which he,
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acting
reasonably, believes or should believe to be of a confidential nature and the
disclosure of which to not be in Commerce’s interest.
9.2
Employee covenants and agrees that he will not, during the Term of his
employment hereunder, except with the express prior written consent of the
Commerce Board, directly or indirectly, whether as employee, owner, partner,
consultant,. agent, director, officer, shareholder or in any other capacity,
engage in or assist any Person to engage in any act or action which he, acting
reasonably, believes or should believe would be harmful or inimical to the
interests of Commerce .or COBA.
9.3
Employee covenants and agrees that he will not except with the express prior
written consent of the Commerce Board, in any capacity (including, but not
limited to/ owner, partner, shareholder, consultant, agent, employee, officer,
director or otherwise), directly or indirectly, for his own account or for
the
benefit of any Person, establish, engage or participate in or otherwise be
connected with any commercial insurance brokerage business which conducts
business in any geographic area in which COBA and its subsidiaries is then
conducting such business except that the foregoing shall not prohibit Employee
from owning as a shareholder less than 5% of
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the
outstanding voting stock of an issuer whose stock is publicly traded.
(B)
The
provisions of Section 9.3(A) shall be applicable commencing on the date of
this
Agreement and ending on one of the following periods, as applicable:
(i)
·If
this Agreement is terminated by Commerce in accordance with the provisions
of
Section 1.2 of this Agreement, the effective date of termination of this
Agreement;
(ii)
If
this Agreement is terminated by Employee in accordance with the provisions
of
Section 1.2 of this Agreement, one year following the effective date of
termination of this Agreement;
(iii)
If
Commerce terminates this Agreement in accordance with the provisions of Section
5.1 of this Agreement or the Employee voluntarily terminates his employment
hereunder in accordance with the provisions of Section 7.7 of this Agreement,
three years following the effective date of termination of this Agreement;
or
(iv)
If
this Agreement is terminated in accordance with the provisions of either Section
7.1 or 7.2 of this Agreement, one year following the effective date of
termination of this Agreement.
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9.4
The
parties agree that any breach by Employee of any of the covenants or agreements
contained in this Section 9 will result in irreparable injury to Commerce for
which money damages could not adequately compensate Commerce and therefore/
in
the event of any such breach/ Commerce shall be entitled (in addition to any
other rights and remedies which it may have at law or in equity) to have an
injunction issued by any competent court enjoining and restraining Employee
and/or any other Person involved therein from continuing such breach. The
existence of any claim or cause of action which Employee may have against
Commerce or any other Person (other than a claim for Commerce's breach of this
Agreement for failure to make payments hereunder) shall not constitute a defense
or bar to the enforcement of such covenants. In the event of any alleged breach
by Employee of the covenants or agreements contained in this Section 9, Commerce
shall continue any and all of the payments due Employee under this Agreement
until such time as a Court shall enter a final and unappealable order finding
such a breach; provided/ that the foregoing shall not preclude a Court from
ordering Employee to repay such payments made to him for the period after the
breach is determined to have occurred or from ordering that
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payments
hereunder be permanently terminated in the event of a material and willful
breach.
9.5
If
any portion of the covenants or agreements contained in this Section 9, or
the
application hereof, is construed to be invalid or unenforceable, the other
portions of such covenant(s) or agreement(s) or the application thereof shall
not be affected and shall be given full force and effect without regard to
the
invalid or unenforceable portions to the fullest extent possible. If any
covenant or agreement in this Section 9 is held to be unenforceable because
of
the area covered, the duration thereof, or the scope thereof, then the court
making such determination shall have the power to reduce the area and/or
duration and/or limit the scope thereof, and the covenant or agreement shall
then be enforceable in its reduced form.
9.6
For
purposes of this Section 9, the term "Commerce" or "COBA" shall include Commerce
or COBA, any successor of Commerce or COBA under Section 10 hereof, and all
present and future direct and indirect subsidiaries and affiliates of Commerce
or COBA.
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10.
Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon any corporate or
other successor of Commerce which will acquire, directly or indirectly, by
merger, consolidation, purchase, or otherwise, all or substantially all of
the
assets of Commerce,
and
shall otherwise inure to the benefit of and be binding upon the parties hereto
and their respective heirs,
executors,
administrators,
successors and assigns. Upon the death of Employee,
any
payments or benefits otherwise due Employee hereunder shall be paid to or be
for
the benefit of Employee's legal representatives. Nothing in the Agreement shall
preclude Commerce from. consolidating or merging into or with or transferring
all or substantially all of its assets to another Person. In
that
event such other Person shall assume this Agreement and all obligations of
Commerce hereunder. Upon such a Consolidation,
merger,
or
transfer of assets and assumption,
the term
“Commerce”
as used herein, shall mean such other Person and this Agreement shall continue
in full force and effect.
11.
Assignment.
Neither
this Agreement nor any rights to receive payments hereunder shall be voluntarily
or involuntarily assigned,
transferred, alienated, encumbered or disposed of, in
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whole
or
in part, without Commerce's prior written consent and approval, and shall not
be
subject to anticipation, levy, execution, garnishment, attachment by, or
interference or control of, any creditor.
12.
Source
of Payment and Timing.
12.1
All
payments provided under this Agreement shall be. paid in cash from the general
funds of Commerce, no special or separate fund shall be required to be
established and Employee shall have no right, title or interest whatsoever
in or
to any investment which Commerce may make to aid Commerce in meeting its
obligations hereunder except to the extent that Commerce shall, in its sole
and
absolute discretion, choose to designate any of its rights it may have under
one
or more life insurance policies it may obtain to cover any of its obligations
under this Agreement. Nothing contained in this Agreement, and no action taken
pursuant to its provisions, shall create or be construed to create a trust
of
any kind or fiduciary relationship between Commerce and Employee or any other
Person.
12.2
All
payments due Employee under Sections 5.1, 6.3, 7.1 or 7.2 hereof shall be made
not later than the thirtieth day following the date of termination of
employment.
13.
Interest.
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In
the
event any benefits due to Employee are not paid when due hereunder, Employee
shall be entitled (in addition to his other rights and remedies) to interest
on
the past due amounts at a rate equal to two percentage points above the prime
rate charged from time to time by Commerce, such interest to commence on the
date a benefit was due hereunder.
14.
Reimbursement
of Enforcement Expenses.
If
Commerce fails to payor provide Employee any of the amounts due him hereunder
or
fails to provide Employee with any of the other benefits due him under this
Agreement, and provided Commerce does not cure any such failure within thirty
days after having received written notice from Employee of such failure,
Employee shall be entitled to full reimbursement from Commerce for all costs
and
expenses (including reasonable attorneys' fees and costs) incurred by Employee
in enforcing his rights under this Agreement.
15.
Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed, certified or registered mail, return receipt requested, with postage
prepaid,
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to
the
following addresses or to such other address as either party may designate
by
like notice:
A.
If to
Employee, to the address on file with the Company.
B.
If to
Commerce, to
Commerce
Bancorp, Inc.
Commerce
Atrium
0000
Xxxxx 00 Xxxx
Xxxxxx
Xxxx, Xxx Xxxxxx 00000-0000
Attn:
Chairman, Personnel Committee, Board of Directors.
and
to
such other or additional person or persons as either party shall have designated
to the other party in writing by like notice.
16.
General
provisions.
16.1
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof, and supersedes and replaces all prior agreements
between the parties. No amendment, waiver or termination of any of the
provisions hereof shall be effective unless in writing and signed by the party
against whom it is sought to be enforced. Any written amendment, waiver or
termination hereof executed by Commerce and Employee (or his legal
representatives) shall be binding upon
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them
and
upon all other Persons, without the necessity of securing the consent of any
other Person including, but not limited to, Employee's wife, and no Person
shall
be deemed to be a third party beneficiary under this Agreement except to the
extent provided under Section 12.1 hereof.
16.2
COBA
or any of its subsidiaries may make payments to Employee hereunder in lieu
of
payments to be made by Commerce, and to the extent such payments are so made,
Commerce shall be released of its obligations to make such payments.
16.3
The
benefits provided under this Agreement shall be in addition to and shall not
affect the proceeds payable to Employee 's beneficiaries under group life
insurance policies which Commerce may be carrying on employee's life.
16.4
"Person" as used in this Agreement means a natural person, joint venture,
corporation, sole proprietorship, trust, estate, partnership, cooperative,
association, non-profit organization or any other legal entity.
16.5
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one and
the
same Agreement.
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16.6
Except as otherwise expressly set forth herein, no failure on the part of any
party hereto to exercise and no delay in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
16.7
Commerce and Employee consent to the exclusive jurisdiction of the courts of
the
State of New Jersey and the United States District Court for the District of
New
Jersey in any and all actions arising hereunder and irrevocably consent to
service of process as set forth in Section 15 hereof.
16.8
The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall in no way restrict or modify any of the terms or
provisions hereof.
16.9
This
Agreement shall be governed and construed and the legal relationships of the
parties determined in accordance with the laws of the State of New Jersey
applicable to contracts executed and to be performed solely in the State of
New
Jersey.
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COMMERCE
NATIONAL INSURANCE SERVICES, INC.
By:
/s/ Xxxxxx X. Xxxx, XX
Name:
Xxxxxx X. Xxxx, XX
Title:
Secretary
/s/
Xxxxxx X. Xxxxxxxx, III
Xxxxxx
X.
Xxxxxxxx, III
GUARANTEE
Commerce
Bancorp, Inc. does hereby guarantee the prompt payment and performance of all
of
the obligations of Commerce National 'Insurance Services, Inc. set forth in
the
foregoing Employment Agreement.
COMMERCE
BANCORP, INC.
By:
/s/ Xxxxxx X. Xxxx, XX
Name:
Xxxxxx X. Xxxx, XX
Title:
Secretary
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