CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT dated and entered into effective as of
the ____ day of _______________, 19___, by and between Broad
National Bank, a national banking association (together with any
successor, the "Bank"), Broad National Bancorporation, a New
Jersey corporation (together with any successors, the
"Corporation") and ___________________________, residing at
_____________________, ______________________ (the "Executive").
WITNESSETH:
WHEREAS should the Bank or Corporation receive a
proposal from, or engage in discussions with, a third person,
whether solicited by the Bank or unsolicited, concerning a
possible business combination with or the acquisition of a
substantial portion of voting securities of either party, the
Boards of Directors of the Bank and the Corporation
(collectively, the "Board") have deemed it imperative that it and
the Bank be able to rely on the Executive to continue to serve in
his position, and that the Board and the Bank be able to receive
and rely upon the Executive's advice, if they request it, as to
the best interests of the Bank and its shareholders, without
concern that the Executive might be distracted by the personal
uncertainties and risks that such a proposal or discussions might
otherwise create; and
WHEREAS, the Bank desires to enhance executive morale
and its ability to retain existing management; and
WHEREAS, the Bank desires to reward the Executive for
valuable, dedicated service to the Bank should such service be
terminated under circumstances hereinafter described; and
WHEREAS, the Board therefore considers it in the best
interests of the Bank and its shareholders for the Bank to enter
into Change of Control Agreements, in form similar to this
Agreement, with certain key executive officers of the Bank; and
WHEREAS, the Executive is presently a key executive
with whom the Bank has been authorized by the Board to enter into
this Agreement;
NOW, THEREFORE, to assure the Bank of the Executive's
continued dedication and the availability of the Executive's
advice and counsel in the event of any such proposal, to induce
the Executive to remain in the employ of the Bank, and to reward
the Executive for valuable, dedicated service to the Bank should
such service be terminated under circumstances hereinafter
described, and for other good and valuable consideration, the
receipt and adequacy whereof each party acknowledges, the Bank
and the Executive agree as follows:
1. OPERATION, EFFECTIVE DATE, AND TERM OF AGREEMENT
(a) This Agreement shall commence on the date hereof
and continue in effect through December 31, 1998: provided,
however, that commencing on January 1, 1998 and each succeeding
January 1 thereafter, the term of this Agreement shall be
extended automatically for one additional year unless not later
than September 30, of the preceding year the Bank shall have
given notice that it does not wish to extend this Agreement.
(b) This Agreement is effective and binding on both
parties as of the date hereof. Notwithstanding its present
effectiveness, the provisions of paragraphs 3 and 4 of this
Agreement shall become operative only when, as and if there has
been a "Change in Control of the Bank." For purposes of this
Agreement, a "Change in Control of the Bank" shall be deemed to
have occurred if (X) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), other than (i) Xxxxxx X. Xxxx
or any spouse, former spouse or lineal descendant of Xxxxxx X.
Xxxx ("Xxxx Family Member"), (ii) a trustee or other fiduciary
holding securities in trust for a Xxxx Family Member or under an
employee benefit plan of the Bank or (iii) a person engaging in a
transaction of the type described in clause (Z) of this
subsection but which does not constitute a change in control
under such clause, is or become the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Bank or the Corporation
representing 25% or more of the combined voting power of the
Bank's or Corporation's then outstanding securities; or (Y)
during any period of two consecutive years during the term of
this Agreement, individuals who at the beginning of such period
constitute the Board and any new director (other than a director
designated by a person who has entered into an agreement with the
Bank to effect a transaction described in clauses (X) or (Z) of
this Subsection) whose election by the Board or nomination for
election by the Bank or Corporation shareholders was approved by
a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors at the beginning of the
period or whose election or nomination for election was
previously so approved ("Continuing Members"), cease for any
reason to constitute a majority thereof; or (Z) the shareholders
of the Bank or Corporation approve or, if no shareholder approval
is required or obtained, the Bank or the Corporation or a
subsidiary of either of them completes a merger, consolidation or
similar transaction of the Bank or Corporation or such a
subsidiary with or into any other corporation, or a binding share
exchange involving the Bank's or Corporation's securities, other
than any such transaction which would result in the voting
securities of the Bank or Corporation outstanding immediately
prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity) at least 66 2/3% of the combined voting power
of the voting securities of the Bank, the Corporation or such
surviving entity outstanding immediately after such transaction,
or the shareholders of the Bank or Corporation approve a plan of
complete liquidation of the Bank or Corporation or an agreement
for the sale or disposition by the Bank or Corporation of all or
substantially all the Bank's or Corporation's assets.
2. EMPLOYMENT OF EXECUTIVE
Nothing herein shall affect any right which the
Executive or the Bank may otherwise have to terminate the
Executive's employment by the Bank at any time in any lawful
manner, subject always to the Bank's providing to the Executive
the payments and benefits specified in paragraphs 3 and 4 of this
Agreement to the extent hereinbelow provided.
In the event any person commences a tender or exchange
offer, circulates a proxy statement to the Bank's or
Corporation's shareholders or takes other steps designed to
effect a Change in Control of the Bank as defined in paragraph 1
of this Agreement, the Executive agrees that he will not
voluntarily leave the employ of the Bank, and will continue to
perform his regular duties and to render the services specified
in the recitals of this Agreement, until such person has
abandoned or terminated his efforts to effect a Change in Control
of the Bank or until a Change in Control of the Bank has
occurred. Should the Executive voluntarily terminate his
employment before any such effort to effect a Change in Control
of the Bank has commenced, or after any such effort has been
abandoned or terminated without effecting a Change in Control of
the Bank and no such effort is then in process, this Agreement
shall lapse and be of no further force or effect.
3. TERMINATION FOLLOWING CHANGE IN CONTROL
(a) If any of the events described in paragraph 1
hereof constituting a Change in Control of the Bank shall have
occurred, the Executive shall be entitled to the benefits
provided in paragraph 4 hereof upon the subsequent termination of
his employment within the applicable period set forth in
paragraph 4 hereof following such Change in Control of the Bank
unless such termination is (i) due to the Executive's death or
Retirement; or (ii) by the Bank by reason of the Executive's
Disability or for Cause; or (iii) by the Executive other than for
Good Reason.
(b) If following a Change in Control of the Bank, the
Executive's employment is terminated by reason of his death or
Disability, the Executive shall be entitled to death or long-term
disability benefits, as the case may be, from the Bank no less
favorable than those benefits to which he would have been
entitled had the death or termination for Disability occurred
during the six-month period prior to the Change in Control of the
Bank. If prior to any such termination for Disability, the
Executive fails to perform his duties as a result of incapacity
due to physical or mental illness, he shall continue to receive
his Base Salary less any benefits as may be available to him
under the Bank's disability plans until his employment is
terminated for Disability.
(c) If the Executive's employment shall be terminated
by the Bank for Cause or by the Executive other than for Good
Reason, the Bank shall pay to the 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 Bank shall have no
further obligations to the Executive under this Agreement.
(d) For purposes of this Agreement:
(i) "Disability" shall mean the Executive's
absence, due to physical or mental illness or injury, from his or
her duties with the Bank on a full time basis or his or her
inability to substantially perform the services required for his
or her employment for a period of six (6) consecutive months, or
shorter periods aggregating one hundred eighty (180) days within
any consecutive twelve (12) month period, and continued inability
to perform or failure to perform duties on a full-time basis
after thirty (30) days written notice of a proposed determination
of disability has been given by the Bank to the Executive.
(ii) "Retirement" shall mean that the Executive
shall have reached age 65 and shall voluntarily retire under the
Bank's retirement plans applicable to such Executive or any
earlier actual voluntary retirement by the Executive from his
employment with the Bank.
(iii) "Cause" shall mean:
(A) the conviction of the Executive of a
felony, or the willful commission by the Executive of a criminal
or other act that the judgment of the Board causes or will
probably cause substantial economic damage to the Bank or
substantial injury to the business reputation of the Bank;
(B) the commission by the Executive of an
act of fraud in the performance of such Executive's duties on
behalf of the Bank;
(C) the continuing willful failure of the
Executive to perform the duties of such Executive to the Bank
(other than any such failure resulting from the Executive's
incapacity due to physical or mental illness) after written
notice thereof (specifying the particulars thereof in reasonable
detail) and a reasonable opportunity to be heard and cure such
failure are given to the Executive by the compensation committee
of the Board; or
(D) the order of a federal or state bank
regulatory agency or a court of competent jurisdiction requiring
the termination of the Executive's employment.
For purposes of this subparagraph (d)(iii), no act, or
failure to act, on the Executive's part shall be considered
"willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission
was in the best interests of the Bank.
(iv) "Good Reason" shall mean:
(A) The assignment by the Bank to the
Executive of duties without the Executive's express written
consent, which (i) are materially different or require travel
significantly more time-consuming or extensive than the
Executive's duties or business travel obligations immediately
prior to the Change in Control of the Bank, or (ii) result, in
either a significant reduction in the Executive's authority and
responsibility as a senior corporate executive of the Bank when
compared to the highest level of authority and responsibility
assigned to the Executive at any time during the six (6) month
period prior to the Change in Control of the Bank, or, (iii)
without the Executive's express written consent, the removal of
the Executive from, or any failure to reappoint or reelect the
Executive to, the highest title held since the date six (6)
months before the Change in Control of the Bank, except in
connection with a termination of the Executive's employment by
the Bank for Cause, or by reason of the Executive's death,
Disability or Retirement;
(B) A reduction by the Bank of the
Executive's Base Salary, or the failure to grant increases in the
Executive's Base Salary on a basis at least substantially
comparable to those granted to other executives of the Bank of
comparable title, salary and performance ratings made in good
faith;
(C) The relocation of the Bank's principal
executive offices to a location outside the State of New Jersey,
or the Bank's requiring the Executive to be based anywhere other
than the Bank's principal executive offices except for required
travel on the Bank's business to an extent substantially
consistent with the Executive's business travel obligations
immediately prior to the Change in Control of the Bank, or in the
event of any relocation of the Executive with the Executive's
express written consent, the failure by the Bank to pay (or
reimburse the Executive for) all reasonable moving expenses by
the Executive relating to a change of principal residence in
connection with such relocation and to indemnify the Executive
against any loss realized in the sale of the Executive's
principal residence in connection with any such change of
residence, all to the effect that the Executive shall incur no
loss upon such sale on an after tax basis;
(D) The failure by the Bank to continue to
provide the Executive with substantially the same welfare
benefits (which for purposes of this Agreement shall mean
benefits under all welfare plans as that term is defined in
Section 3(1) of the Employee Retirement Income Security Act of
1974, as amended), and perquisites, including participation on a
comparable basis in the Bank's retirement plans, stock options
plan and other plans in which executives of the Bank of
comparable title and salary participate and as were provided to
the Executive immediately prior to such Change in Control of the
Bank, or with a package of welfare benefits and perquisites,
that, though one or more of such benefits or perquisites may vary
from those, including participation on a comparable basis in the
Bank's retirement plan and stock option plan is substantially
comparable in all material respects to such welfare benefits and
perquisites, including participation on a comparable basis in the
Bank's retirement plan and stock option plan taken as a whole; or
(E) The failure of the Bank to obtain the
express written assumption of and agreement to perform this
Agreement by any successor as contemplated in subparagraph 5(d)
hereof.
(v) "Dispute" shall mean (i) in the case of
termination of employment of an Executive with the Bank or a
Subsidiary by the Bank for Disability or Cause, that the
Executive challenges the existence of Disability or Cause and
(ii) in the case of termination of employment of an Executive
with the Bank by the Executive for Good Reason, that the Bank
challenges the existence of Good Reason.
(vi) "Base Salary" shall mean the amount
determined by multiplying the Executive's highest semi-monthly or
other periodic rate of base pay paid to the Executive during the
twelve-month period immediately prior to the giving of the Notice
of Termination by the number of pay periods per year. The
following items are not part of base pay, as used herein:
reimbursed expenses, any amount paid on account of overtime or
holiday work, payment on account of insurance premiums or other
contributions made to other welfare or benefit plans, any year-
end or other bonuses, commissions and gifts.
(vii) "Incentive Compensation" shall mean the
cash equal to the amount of the cash award that would have been
paid to the Executive under cash bonus plans of the Bank for the
year which includes the Date of Termination, such amount to be
determined in good faith by taking into account the amounts paid
to the other executives with comparable titles, salaries and
performance ratings.
(e) Any purported termination of employment by the
Bank by reason of the Executive's Disability or for Cause, or by
the Executive for Good Reason 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
given by the Executive or the Bank, as the case may be, which
shall indicate the specific basis for termination and shall set
forth in reasonable detail the facts and circumstances claimed to
provide a basis for determination of any payments under this
Agreement. An Executive shall not be entitled to give a Notice
of Termination that the Executive is terminating his employment
with the Bank for Good Reason more than six (6) months following
the occurrence of the event alleged to constitute Good Reason.
(f) For purposes of this Agreement, "Date of
Termination" shall mean the date specified in the Notice of
Termination, which shall not be more than ninety (90) days after
such Notice of Termination is given, as such date may be modified
pursuant to the following two sentences. If within thirty (30)
days after any Notice of Termination is given, the party who
receives such Notice of Termination notifies the other party that
a Dispute (as heretofore defined) exists, the Date of Termination
shall be the date on which the Dispute is finally determined,
either by mutual written agreement of the parties, or by a final
judgment, order or decree of a court of competent jurisdiction
(the time for appeal therefrom having expired and no appeal
having been perfected); provided that the Date of Termination
shall be extended by a notice of Dispute only if such notice is
given in good faith and the party giving such notice pursues the
resolution of such Dispute with reasonable diligence and provided
further that pending the resolution of any such Dispute, the Bank
shall continue to pay the Executive the same Base Salary and to
provide the Executive with the same or substantially comparable
welfare benefits and perquisites, including participation in the
Bank's retirement plan, to the extent then so available at the
date of such determination, and stock option plan that the
Executive was paid and provided immediately prior to the Change
in Control of the Bank. Should a Dispute ultimately be
determined in favor of the Bank then all sums paid by the Bank to
the Executive from the date of termination specified in the
Notice of Termination until final resolution of the Dispute
pursuant to this paragraph shall be repaid promptly by the
Executive to the Bank, with interest at 70% of the prime rate
charged from time to time by the Bank, all stock options granted
to the Executive during such period shall be cancelled or
returned to the Bank, and no service as an employee shall be
credited to the Executive for such period for pension purposes.
The Executive shall not be obligated to pay back the welfare
benefits and perquisites for such period unless the final
judgment, order or decree of a court or other body resolving the
Dispute determines that the Executive acted in bad faith in
giving a notice of Dispute. Should a Dispute ultimately be
determined in favor of the Executive, then the Executive shall be
entitled to retain all sums paid to the Executive under this
subparagraph (f) pending resolution of the Dispute and shall be
entitled to receive, in addition, the payments and other benefits
provided for in paragraph 4 hereof to the extent not previously
paid hereunder.
4. PAYMENTS UPON TERMINATION
If within three years after a Change in Control of the
Bank, the Bank shall terminate the Executive's employment other
than by reason of the Executive's death, Disability, Retirement
or for Cause or if the Executive shall terminate his employment
for Good Reason then,
(a) the Bank will pay to the Executive as compensation
for services rendered, (subject to any applicable payroll or
other taxes required to be withheld) commencing on the first day
of the month following the month of termination, one-twelfth
(1/12) of Base Salary of the Executive payable once monthly for a
period of twelve months.
(b) the Executive will be entitled to receive "Special
Retirement Benefits" as provided herein, so that the total
retirement benefits the Executive receives from the Bank will
approximate the total retirement benefits the Executive would
have received under all retirement plans (which shall not include
severance plans) in which the Executive participates were the
Executive fully vested under such retirement plans and had the
Executive continued in the employ of the Bank for twelve months
following the Date of Termination or until his Retirement, if
earlier (provided that such additional period shall be inclusive
of and shall not be in addition to any period of service credited
under any severance plan of the Bank). The benefits specified in
this subparagraph will include all ancillary benefits, such as
early retirement and survivor rights and benefits available at
retirement. The amount payable to the Executive or his
beneficiaries under this subparagraph shall equal the excess of
(1) the benefits that would be paid to the Executive of his
beneficiaries, under all retirement plans of the Bank in which
the Executive participates if (A) the Executive were fully vested
under such plans, (B) the twelve month period (or the period
until his Retirement, if less) following the Date of Termination
were added to his credited service under such plans, (C) such
plans were not amended after the Change in Control of the Bank in
a way that adversely effects the Executive, and (D) the
Executive's highest average annual compensation as defined under
such retirement plans was calculated as if the Executive had been
employed by the Bank for a twelve month period (or the period
until his Retirement, if earlier) following the Date of
Termination and had the Executive's salary and bonuses included
in compensation for purposes of such retirement plans during such
period been equal to the Executive's Base Salary and Incentive
Compensation (if included in the relevant plan formula for
determining benefits); over (2) the benefits that are payable to
the Executive or his beneficiaries under all retirement plans in
which the Executive participates. These Special Retirement
Benefits are provided on an unfunded basis, are not intended to
meet the qualification requirements of Section 401 of the
Internal Revenue Code of 1986, as amended, and shall be payable
solely from the general assets of the Bank. These Special
Retirement Benefits shall be payable to the times and in the
manner provided in the applicable retirement plans.
(c) In the event that any payment or benefit received
or to be received by the Executive in connection with a Change in
Control of the Bank or the termination of the Executive's
employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement with the Bank, any
person whose actions result in a Change in Control of the Bank or
any person affiliated with the Bank or such person) (collectively
with the payments and benefits hereunder, "Total Payments") would
not be deductible (in whole or part) as a result of section 280G
of the Internal Revenue Code of 1986, as amended and the
regulations thereunder (the "Code") by the Bank, an affiliate or
other person making such payment or providing such benefit, the
payments and benefits hereunder shall be reduced until no portion
of the Total Payments is not deductible, or the payments and
benefits hereunder are reduced to zero. At the Bank's sole
discretion, such reduction may be effected by extending the date
the payment would otherwise be due by not more than one year or
by decreasing the amount of the payment or benefit otherwise due
and payable, provided, however, if such decrease is necessary,
the payment under subsection (a) shall first be decreased, and
thereafter, if necessary, the benefits under subsection (b) shall
be decreased. For purposes of this limitation (i) no portion of
the Total Payments the receipt or enjoyment of which the
Executive shall have effectively waived in writing prior to the
date of payment under subsection (a) shall be taken into account,
(ii) no portion of the Total Payments shall be taken into account
which, in the opinion of tax counsel selected by the Executive
and acceptable to the Bank's independent auditors, is not likely
to constitute a "parachute payment" within the meaning of section
280G(b)(2) of the Code, (iii) the payments and benefits hereunder
shall be reduced only to the extent necessary so that, in the
opinion of the tax counsel referred to in clause (ii) (subject to
the reasonable concurrence of the Bank's independent auditors),
the Total Payments (other than those referred to in clauses (i)
or (ii)) in their entirety are likely to constitute reasonable
compensation for services actually rendered within the meaning of
section 270G(b)(4) of the Code or are otherwise not likely to be
subject to disallowance as deductions; and (iv) the value of any
non-cash benefit or any deferred payment or benefit included in
the Total Payments shall be determined by the Bank's independent
auditors in accordance with the principles of sections 280G(d)(3)
and (4) of the Code.
(d) In the event that any payment or benefit received
or to be received by the Executive in connection with a Change in
Control of the Bank or the termination of the Executive's
employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement with the Bank, any
person whose actions result in a Change in Control of the Bank or
any person affiliated with the Bank or such person) (collectively
with the payments and benefits hereunder, "Total Payments") would
not be deductible (in whole or in part) as a result of Section
162(m) of the Code, or any combination of Section 162(m) and
Section 280G of the Code, by the Bank, an affiliate or other
person making such payment or providing such benefit, the
payments and benefits hereunder shall be reduced until no portion
of the Total Payments is not deductible, or the payments and
benefits hereunder are reduced to zero. At the Bank's sole
discretion, such reduction may be effected by extending the date
the payment would otherwise be due by not more than one year or
by decreasing the amount of the payment or benefit otherwise due
and payable provided, however, if such decrease is necessary, the
payment under subsection (a) shall first be decreased, and
thereafter, if necessary, the benefits under subsection (b) shall
be decreased. For purposes of this limitation (i) no portion of
the Total Payments the receipt or enjoyment of which the
Executive shall have effectively waived in writing prior to the
date of payment under subsection (a) shall be taken into account,
and (ii) the payments and benefits hereunder shall be reduced
only to the extent necessary so that, in the opinion of tax
counsel selected by the Executive and acceptable to the Bank's
independent auditors, the Total Payments (other than those
referred to in clause (i)) in their entirety are likely to
constitute performance-based compensation or remuneration payable
on a commission basis within the meaning of Section 162(m)(4) of
the Code, do not exceed the $1,000,000 limitation of Section
162(m)(1) of the Code, or are otherwise not likely to be subject
to disallowance as deductions.
5. GENERAL
(a) The Executive shall retain in confidence any
proprietary or other confidential information known to him
concerning the Bank and its business (including the Bank's
subsidiaries and their businesses) so long as such information is
not publicly disclosed and disclosure is not required by an order
of any governmental body or court.
(b) If litigation or other proceedings shall be
brought to enforce or interpret any provision contained herein or
in connection with any tax audit to the extent attributable to
the application of Section 4999 of the Code to any payment or
benefit provided hereunder, the Bank shall indemnify the
Executive for his reasonable attorney's fees and disbursements
incurred in connection therewith and pay prejudgment interest on
any money judgment obtained by the Executive calculated at the
Bank's prime rate of interest in effect from time to time from
the date that payment should have been made under the Agreement;
provided that if the Executive initiated the proceedings, the
Executive shall not have been found by the court or other fact
finder to have acted in bad faith in initiating such litigation
or other proceeding, which finding must be final without further
rights of appeal.
(c) The Bank's obligation to pay the Executive the
compensation and to make the arrangements provided herein shall
be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, any setoff,
counterclaim, recoupment, defense or other right which the Bank
may have against the Executive or anyone else. All amounts
payable by the Bank hereunder shall be paid without notice or
demand. Except as expressly provided herein, the Bank waives all
rights which it may now have or may hereafter have conferred upon
it, by statute or otherwise, to terminate, cancel or rescind this
Agreement in whole or in part. Except as provided in paragraph
3(f) herein, each and every payment made hereunder by the Bank
shall be final and the Bank will not seek to recover for any
reason all or any part of such payment from the Executive or any
person entitled thereto. The Executive shall not be required to
mitigate the amount of any payment or other benefit provided for
in this Agreement by seeking other employment or otherwise.
(d) The Bank will in good faith attempt to require any
successor (whether direct or indirect, by purchase, merger,
consolidated or otherwise) to all or substantially all of the
business and/or assets of the Bank, by written agreement in form
and substance satisfactory to the Executive, to expressly assume
and agree to perform this Agreement in the same manner and to the
same extent that the Bank would be required to perform it if no
such succession had taken place. If any such successor shall not
so assume the Bank's obligations hereunder, and such successor is
not bound hereby by operation of law, the Bank will continue to
be liable for any payments to which the Executive may be
entitled. If the Bank shall dissolve within three years
following a change in control of the Bank, prior to dissolution
the Bank shall set aside sufficient funds to pay any such
liability or potential liability which was not paid prior to
dissolution.
As used in this Agreement "Bank" shall mean the Bank as
hereinbefore 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.
(e) This Agreement shall inure to the benefit of, and
be enforceable by, the Executive's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die
while any amounts would still be payable to the Executive
hereunder if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's devisee, legatee or
other designee or, if there be no such designee, to the
Executive's estate. The obligations of the Executive hereunder
shall not be assignable by the Executive.
(f) Nothing in this Agreement shall be deemed to
entitle the Executive to continued employment with the Bank and
the rights of the Bank to terminate the employment of the
Executive shall continue as fully as though this Agreement was
not in effect.
6. NOTICE
For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered or
mailed by United States certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive:
_______________________
_______________________
_______________________
If to the Bank:
Broad National Bank
000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxx
Chairman and Chief
Executive Officer
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.
7. MISCELLANEOUS
No provisions of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is
agreed to in writing, signed by the 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 assurances 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.
However, this Agreement is in addition to, and not in lieu of,
any other plan providing for payments to or benefits for the
Executive or any agreement now existing, or which hereafter may
be entered into, between the Bank and the Executive. The
validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of New
Jersey.
8. FINANCING
All amounts due and benefits provided under this
Agreement shall constitute general obligations of the Bank in
accordance with the terms of this Agreement. The Executive shall
have only an unsecured right to payment thereof out of the
general assets of the Bank. Notwithstanding the foregoing, the
Bank may, by agreement with one or more trustees to be selected
by the Bank, create a trust on such terms as the Bank shall
determine to make payments to the Executive in accordance with
the terms of this Agreement.
9. 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. Any provision in this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating or affecting
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
10. PROHIBITION OF PAYMENTS BY BANK REGULATORY AUTHORITIES
Notwithstanding the foregoing, the Bank shall not be
obligated to make any payment to the Executive under this
Agreement, if the payment would violate Section 18(k) of the
Federal Deposit Insurance Act or the regulations of the Federal
Deposit Insurance Corporation (the "FDIC") thereunder; provided,
however, that the Bank covenants to the Executive to take all
reasonable steps to obtain the approval of the FDIC and/or other
bank regulatory authorities to make payments to the Executive
hereunder including obtaining the approval of the FDIC and/or
other bank regulatory authorities of this Agreement.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date set forth above.
BROAD NATIONAL BANK EXECUTIVE
BY: __________________________ ____________________________
__________________________
BROAD NATIONAL BANCORPORATION
BY: ______________________________
Schedule of Executives Covered by the Foregoing Form of Change of
Control Agreement
1. Xxxxx Xxxxx
2. Xxxx X. Xxxxx
3. Xxxxx X. Xxxxx
4. Xxxx Xxxxx, Xx.
5. Xxxxx X. Xxxxxx
6. Xxxxxx Xxxxxxx
