EXHIBIT 10.11
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL AGREEMENT (this "Agreement"), dated as of the 21st
day of February, 2007, is by and between CENTRAL JERSEY BANCORP, a New Jersey
corporation (the "Company" or "Bancorp"), and Xxxx X. Xxxxxxxx (the
"Executive").
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
that, as is the case with many publicly held companies, the possibility of a
change of control exists and that such possibility, and the uncertainty and
questions which it may raise among management, could result in the departure or
distraction of management personnel to the detriment of the Company;
WHEREAS, the Board has determined that appropriate steps should be taken
to reinforce and encourage the continued attention and dedication of members of
the Company's management, including the Executive, to their assigned duties
without distraction in the face of the possibility of a change of control; and
WHEREAS, the Company and the Executive desire to memorialize in this
Agreement the benefits to which the Executive shall be entitled in the event of
a change of control.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, undertakings and representations contained herein, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Company and the Executive agree as follows:
1. Term of Agreement. This Agreement shall be effective as of February,
2007 (the "Effective Date"), and shall continue in full force and effect for so
long as the Executive is employed by Bancorp and/or Central Jersey Bank, N.A.,
the bank subsidiary of Bancorp (the "Bank"); provided, however, that this
Agreement shall continue in effect after the termination of Executive's
employment, regardless of the reason, for such period as is necessary to
effectuate the rights of the Executive and Bancorp hereunder and for the
Executive and Bancorp to fulfill and observe their respective obligations set
forth herein; provided, further, that if the Executive's employment is
terminated without Cause (as defined below) by Bancorp prior to a Change of
Control Event (as defined below), the Executive shall be entitled to receive the
full benefits under this Agreement if a Change of Control Event occurs within 12
months after the effective date of termination of Executive's employment. In
other words, in the event the Executive's employment is terminated without
Cause, she will be entitled to receive the Severance provided for in Section
3(a) hereof in connection with a Change of Control Event which occurs within 12
months after such termination. In the event that the Executive is to receive
Severance pursuant to this Section 1, the Severance shall be payable in full by
the Company within 10 business days after the effective date of the Change of
Control Event.
2. Relationship of the Parties. The Executive shall serve, at the
discretion of the Board, as Senior Vice President of the Bank. This Agreement
shall not constitute an employment agreement between the Company and the
Executive and shall not guarantee the Executive's continued employment with
Bancorp or the Bank.
3. Termination as a Result of a Change of Control Event.
(a) In the event that either (i) the Executive is terminated without
Cause in connection with (A) a merger of Bancorp where Bancorp is not the
surviving entity, (B) the acquisition of greater than 50% of Bancorp's voting
stock by an entity or group of individuals other than the shareholders of
Bancorp as of the Effective Date (or any individual or entity which receives
from a current shareholder of Bancorp an interest in Bancorp through will or the
laws of descent and distribution), (C) the sale or disposition of all or
substantially all of Bancorp's assets, or (D) the determination (which may be
made effective as of a particular date specified by the Board) by the Board that
a change of control has occurred or is about to occur (each a "Change of Control
Event"), or (ii) a Change of Control Event occurs and the Executive is not
employed by the successor entity or group (the "Successor Entity") for a period
of at least 18 months commencing on the effective date of the Change of Control
Event pursuant to a written agreement (the "New Agreement") which provides that
Executive shall have (A) the same or substantially equal position with similar
title and responsibilities and the same or greater salary, benefits (including,
without limitation, health insurance for the Executive and her family, life
insurance for the Executive, matching 401(k) contributions and automobile
allowance, as applicable) and bonuses that the Executive was entitled to receive
from the Company immediately prior to the Change of Control Event, and (B) a
commuting distance that is not greater than 30 miles from the Executive's
current residence, the Executive shall be entitled to Severance from the
Company; provided, however, that the Executive shall only be entitled to such
Severance if she agrees to remain as an employee of the Company and assist in
the transition until the effective date of the Change of Control Event;
provided, further, in no event shall a Change of Control Event be deemed to have
occurred, with respect to the Executive, if the Executive is part of a
purchasing group which consummates the transaction relating to the Change of
Control Event. The Executive shall be deemed "part of the purchasing group" for
purposes of the preceding sentence if the Executive is an equity participant or
has agreed to become an equity participant in the purchasing company or group
(except for (i) passive ownership of less than 5% of the voting securities of
the purchasing company; or (ii) ownership of equity participation in the
purchasing company or group which is otherwise deemed not to be significant, as
determined prior to the Change of Control Event by a majority of the
non-employee members of the Board). Except as otherwise provided herein, in the
event that the Executive is to receive Severance in connection with a Change of
Control Event, the Severance shall be payable in equal bi-weekly installments
for a period of 12 months commencing on the effective date of the Change of
Control Event; provided, however, payments of Severance may cease during the 12
month period as provided in Sections 4(a) and (b) hereof.
In addition to the forgoing, in the event the Executive's employment is
terminated without Cause in connection with any acquisition by Bancorp of any
bank, bank holding company or other similar institution (the "Acquisition"), and
the Acquisition does not constitute a Change of Control Event, Executive shall
nevertheless be entitled to receive Severance from the Company, which shall be
payable in equal bi-weekly installments for a period of 12 months commencing on
the effective date of the termination of Executive's employment without Cause;
provided, however, payments of Severance may cease during the 12 month period as
provided in Sections 4(a) and (b) hereof.
For purposes of this Agreement, "Severance" shall mean (i) an amount equal
to the product of the Executive's monthly salary in effect at the time of the
Change of Control Event or the Acquisition multiplied by 12, plus (ii) an amount
equal to the largest annual cash bonus
payment made to the Executive for services provided in any of the three years
ended on December 31 of the year preceding the year in which the Change of
Control Event or the Acquisition occurs, plus (iii) an amount equal to the
product of the cash equivalent of the monthly benefits provided to the Executive
at the time of the Change of Control Event or the Acquisition, as determined by
the Board in good faith and its sole discretion, multiplied by 12. In addition,
for purposes of this Agreement, "Cause" shall mean as follows: (i) the Executive
willfully, or as a result of gross negligence on her part, fails substantially
to (A) carry out the lawful policies of the Board or (B) discharge her duties
and responsibilities as an executive of Bancorp and the Bank for any reason
other than the Executive's disability, (ii) the Executive is convicted of or
enters a plea of no contest with respect to a felony, (iii) the Executive
engages in conduct which is demonstrably and substantially injurious to the
Company (as determined in good faith by the Board), (iv) the Executive
materially breaches this Agreement, or commits any deliberate and intentional
violation of the provisions of Sections 4 and/or 5 of this Agreement, or (v) the
Executive commits willful or intentional misconduct that has a material adverse
effect on Bancorp or the Bank.
(b) In addition to the provisions set forth in Section 3(a) of this
Agreement, the New Agreement also will provide that if the Executive accepts
employment with the Successor Entity as of the effective date of the Change of
Control Event and the Executive (i) is terminated by the Successor Entity
without Cause during the 18 month period commencing on the effective date of the
Change of Control Event or (ii) dies, becomes disabled or voluntarily terminates
her employment with the Successor Entity for any other reason or no reason
during the 12 month period commencing on the 6 month anniversary of the
effective date of the Change of Control Event (the "6 Month Anniversary Date"),
the Executive shall be entitled to Severance from the Successor Entity. If the
Executive's employment is terminated as provided in Subsection 3(b)(i), she
shall receive Severance for the number of months equal to the remainder of 12
months less the number of whole months Executive was employed by the Successor
Entity following the 6 Month Anniversary Date; provided, however, that if the
Executive's employment is terminated by the Successor Entity as provided in
Subsection 3(b)(i) prior to the 6 Month Anniversary Date, the Executive shall
receive 12 months Severance. If the Executive dies, becomes disabled or
terminates her employment with the Successor Entity as provided in Subsection
3(b)(ii), she shall receive Severance for the number of months equal to the
remainder of 12 months less the number of whole months the Executive was
employed by the Successor Entity following the 6 Month Anniversary Date. In no
event shall Executive be entitled to receive less than 6 months Severance;
provided, however, the Executive shall not be entitled to any Severance if she
terminates her employment with the Successor Entity as provided in Subsection
3(b)(ii) prior to the 6 Month Anniversary Date for any reason other than death
or disability (as such term is defined in the policies of the Successor Entity
or, if not so defined, as determined by a physician mutually agreeable to the
Executive and the Successor Entity; provided, further, Severance may be for less
than 6 months as provided in Sections 4(a) and (b) hereof.) To calculate the
Severance payable in accordance with this Section 3(b), the number 12 set forth
in the definition of Severance in Section 3(a) of this Agreement shall be
replaced with the number of months of Severance the Executive is entitled to
receive as provided in this Section 3(b). Such Severance shall be payable in
bi-weekly installments for a period of 12 months after the termination of
Executive's employment with the Successor Entity unless the Executive and the
Successor Entity otherwise agree to another payment schedule; provided, however,
payments of Severance may cease during the 12 month period as provided in
Sections 4(a) and (b) hereof. In addition, the New Agreement will contain the
provisions set forth in Sections 4 through 17 of this Agreement; provided,
however, that the provisions of Section 4(a)
shall not be applicable to the Executive if her employment with the Successor
Entity terminates after the end of the 18 month period which commences on the
effective date of the Change of Control Event and, as a result, she is not
entitled to any Severance in connection with such termination. For purposes of
clarity, the Executive shall not be entitled to any Severance should her
employment with the Successor Entity terminate for any reason after the
expiration of the 18 month period commencing on the effective date of the Change
of Control Event.
4. Covenant Not to Compete/Solicit. In consideration for the right to
receive the Severance provided for herein, the Executive agrees as follows:
(a) During her employment with the Company and for a period of 6
months from the effective date of any termination of the Executive's employment
by the Company for (A) Cause, or (B) without Cause, or (ii) by the Executive,
the Executive shall not, directly or indirectly, commence employment with or
render services to any other bank or banking institution within the State of New
Jersey; provided, however, that if the Executive's employment is terminated by
the Company without Cause, or the Executive voluntarily terminates her
employment with the Company, and she is not entitled to any Severance at the
time of any such termination, the provisions of this Section 4(a) shall not
apply to the Executive; provided, further, that, notwithstanding the foregoing,
the Executive may directly or indirectly commence employment with or render
services to any other bank or banking institution within the State of New Jersey
after 3 months from the date of any termination of Executive's employment with
the understanding and agreement that the Company's obligation to pay any
Severance to Executive hereunder shall cease as of the date the Executive is
employed or renders services to any bank or banking institution within the State
of New Jersey if such employment or provision of services occurs after 3 months
but prior to 6 months from the date of any termination of Executive's
employment.
(b) During her employment with the Company and for a period of 12
months from the effective date of any termination of the Executive's employment
with the Company for any reason whatsoever, the Executive shall not recruit any
employee of the Company or solicit or induce, attempt to solicit or induce, or
assist in the solicitation or inducement of any employee of the Company to
terminate her or her employment, or otherwise cease her or her relationship,
with the Company, or solicit, divert or take away, or attempt to solicit, divert
or take away, the business or patronage of any of the clients, customers or
accounts of the Company that were served by the Company while the Executive was
employed by the Company; provided, however, that, notwithstanding the foregoing,
the Executive may solicit, divert or take away, or attempt to solicit, divert or
take away, the business or patronage of any of the clients, customers or
accounts of the Company that were served by the Company while the Executive was
employed by the Company after 3 months from the date of any termination of
Executive's employment with the understanding and agreement that the Company's
obligation to pay any Severance to Executive hereunder shall cease as of the
date the Executive solicits, diverts or takes away, or attempts to solicit,
divert or take away, the business or patronage of any of the clients, customers
or accounts of the Company that were served by the Company while the Executive
was employed by the Company.
(c) The Executive acknowledges that the restrictions set forth in
this Section 4 are reasonable and necessary for the protection of the business
and good will of the Company.
5. Confidential Information and Materials. The Executive acknowledges that
by reason of the Executive's employment with the Company, the Executive has and
will hereafter, from time to time during her employment with the Company, become
exposed to and/or become knowledgeable about proposals, plans, inventions,
practices, systems, programs, subscriptions, strategies, formulas, processes,
methods, techniques, research, records, suppliers, sources, customer lists,
billing information, any other form of business information and any trade
secrets of every kind and character, whether or not they constitute a trade
secret under applicable law, which are not known to the Company's competitors
and which are kept secret and confidential by the Company (the "Confidential
Information"). The Executive therefore agrees that at no time during or after
her employment will she disclose or use the Confidential Information or
materials to or with any person, firm, business, corporation, association, or
other entity for any reason or purpose except as may be required in the prudent
course of business for the sole benefit of the Company, or as may be required by
a court order or by law.
6. Company Property. All correspondence, memoranda, notes, records,
reports, plans, price lists, customer lists, financial statements, catalogs,
computer programs, disks, tapes, other papers and other medium on or by which
Confidential Information is stored, received or made by the Executive in
connection with her employment by the Company shall be the property of the
Company and shall be delivered to the Company upon the termination of her
employment or at any other time upon request of the Company.
7. Equitable Remedies. The Company and the Executive acknowledge and
confirm that the restrictions contained in Sections 4, 5 and 6 hereof are, in
view of the nature of the business of the Company, reasonable and necessary to
protect the legitimate interests of the Company and that any violation of any
provisions of Sections 4, 5 and 6 will result in irreparable injury to the
Company. Therefore, the Executive hereby agrees that in the event of any breach
or threatened breach of the terms or conditions of this Agreement by the
Executive, the Company's remedies at law will be inadequate and, in any such
event, the Company shall be entitled to commence an action for preliminary and
permanent injunctive relief and other equitable and monetary relief in any court
of competent jurisdiction.
8. Costs. If litigation is brought to enforce or interpret any provision
contained herein, the court shall award reasonable attorneys' fees and
disbursements to the prevailing party as determined by the court.
9. Severability. If any provision of this Agreement or application thereof
to any person or circumstance is adjudicated to be invalid or unenforceable in a
jurisdiction, such invalidity or unenforceability shall not affect any other
provision or application of this Agreement, which can be given effect without
the invalid or unenforceable provision or application and shall not invalidate
or render unenforceable such provision or application in any other jurisdiction.
10. Entire Agreement, Amendments. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements and understandings, oral
or written, with respect to the subject matter hereof. This Agreement may not be
changed, amended or modified orally, but may change only by an agreement in
writing signed by the party against whom any waiver, change, amendment,
modification or discharge may be sought.
11. Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of all executors, administrators, heirs, successors and assigns of
the parties; provided, however, that this Agreement shall not be assignable by
the Executive and shall terminate upon the death of the Executive.
12. Governing Law, Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New Jersey
without application of its conflict of laws rules. The Executive hereby submits
to the exclusive jurisdiction and venue of the courts of the State of New Jersey
or the United States District Court for the District of New Jersey for purposes
of any legal action.
13. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
agreement.
14. Notices. All notices required or permitted hereunder shall be in
writing and shall be sent by overnight courier or certified or registered mail,
return receipt requested, postage prepaid, as follows:
If to the Company: Central Jersey Bancorp
000 Xxxxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Attn.: Xxxxx X. Xxxxxxx
President and Chief Executive Officer
If to the Executive: Xxxx X. Xxxxxxxx
00 Xxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Notices may be sent to such other address as either party may designate in a
written notice served upon the other party in the manner provided herein. All
notices required or permitted hereunder shall be deemed duly given and received
on the next business day, if delivery is by overnight courier, or the second day
next succeeding the date of mailing, if delivery is by mail.
15. Headings. The section headings herein are for convenience only and
shall not affect the interpretation or construction of this Agreement.
16. Waiver. The failure of either party to enforce any provision of this
Agreement shall not be construed as a waiver or limitation of that party's right
to subsequently enforce and compel strict compliance with every provision of
this Agreement.
17. Further Assurances. Each party shall cooperate with and take such
action as may be reasonably requested by the other party in order to carry out
the provisions and purposes of this Agreement.
[Signature Page Follows.]
IN WITNESS WHEREOF, the parties hereto have duly executed this Change of
Control Agreement as of the date first written above.
CENTRAL JERSEY BANCORP
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
EXECUTIVE
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
