Exhibit 10.18
EMPLOYMENT AGREEMENT
This Agreement is made the 16th day of October, 1995 by and among
XXXXXX X. XXXX (hereinafter referred to as "Xxxx") and BROAD NATIONAL
BANCORPORATION, a corporation organized under the laws of the State of New
Jersey (hereinafter, together with any successor entity, referred to as the
"Corporation").
WITNESSETH:
WHEREAS, Xxxx has for a number of years been employed as Chairman
and Chief Executive Officer of the Corporation and its subsidiary, Broad
National Bank, a national banking association (hereinafter, together with any
successor entity, referred to as the "Bank").
WHEREAS, the Board of Directors of the Corporation believes that
the continued leadership and productivity of Xxxx will be extremely beneficial
and will significantly contribute to the continued growth and financial
security of the Corporation and the Bank; and
WHEREAS, the Corporation wishes to assure itself and the Bank of
the services of Xxxx as an employee, officer and, if elected, director of the
Corporation and the Bank for the period provided in this Agreement, and Xxxx
has agreed to serve in the employ of the Corporation and the Bank in such
capacities on the terms and conditions hereinafter set forth; and
WHEREAS, the Board of Directors of the Corporation has determined
that the best interests of the Corporation would be served by providing Xxxx
with protection and special benefits following any change of control of the
Corporation;
NOW, THEREFORE, for and in consideration of the employment of Xxxx
with the Corporation, the compensation to be paid and the other benefits to be
provided to Xxxx by the Corporation for his services and the mutual covenants
set forth in this Agreement, the parties hereto hereby agree as follows:
1. EMPLOYMENT
1.1 The Corporation agrees to the continued employment of
Xxxx, and Xxxx agrees to continue to be employed by the Corporation and the
Bank for the period stated in Section 2.1 hereof and upon the other terms and
conditions herein provided.
2. TERM, POSITION AND RESPONSIBILITIES
2.1 Term of Employment. The period of Xxxx'x employment
under this Agreement shall be deemed to have commenced as of October 1, 1995
and shall continue for a period of sixty (60) full calendar months thereafter
and any extensions thereafter, unless this Agreement is earlier terminated in
accordance with the terms hereof (the "Employment Period"). After twenty-four
months of such term of employment and continuing each month thereafter until
Xxxx shall have attained the age of sixty-two (62), this Agreement shall be
deemed extended for one additional calendar month, so that at all times until
Xxxx attains the age of sixty-two, this Agreement shall have a minimum term of
thirty-six (36) months. Notwithstanding the foregoing, if at any time during
the Employment Period the shareholders of the Corporation vote either (I) to
approve an agreement to merge or consolidate the Corporation with or into
another corporation or (ii) to sell or otherwise dispose of all or
substantially all of its or their assets, in either case, in a transaction in
which a majority of the outstanding stock of the surviving or acquiring
corporation following such merger, consolidation or sale of assets shall not
be held by persons holding a majority of the outstanding shares of the
Corporation immediately prior to such transaction, the period of Xxxx'x
employment shall automatically be extended without further action by the
respective parties for such number of full additional calendar months as shall
be necessary to cause the term hereof to be extended to sixty (60) calendar
months beginning with the month immediately following the month in which such
vote is taken, provided that such term shall not be extended past Xxxx'x
sixty-fifth (65th) birthday.
2.2 Duties During Employment. During the Employment
Period, Xxxx shall serve as the Chairman and Chief Executive Officer of the
Corporation and the Bank and shall have the customary duties and
responsibilities of each such officer; provided, however, that if the term of
Xxxx'x employment is extended pursuant to Section 2.1 hereof, then during that
portion of the extended term which shall be after the effective date of a
merger, consolidation or sale of assets as to which a vote of shareholders
shall have been taken, Xxxx'x duties shall be such as shall be agreed upon by
Xxxx and his then employer in writing. In addition, during the Employment
Period, if elected, Xxxx shall also serve, without any additional compensation
or
fees, as a member of the Board of Directors and as a member of the Executive
Committees of the Corporation and of the Bank.
3. COMPENSATION AND REIMBURSEMENT OF EXPENSES
3.1 Compensation - Base Salary.
A. The compensation specified under this Agreement
shall constitute the salary and benefits paid Xxxx for his services as
described in Section 2.2 by the Corporation and the Bank. Effective October
1, 1995, the Corporation shall pay or cause the Bank to pay Xxxx as
compensation an annual salary ("Base Salary") at the combined rate of not less
than two hundred thousand dollars $200,000 per year; the same salary approved
by the Board in 1994 as Xxxx'x salary for 1995.. During the period of this
Agreement it is understood and agreed that Xxxx'x Base Salary shall be
reviewed by the Board of Directors of the Corporation or the Bank or a
committee or committees thereof at least annually. The first such review
shall be made no later than December 31, 1995. The Board of Directors of the
Corporation or the Bank or the committee or committees thereof may, in their
sole discretion, increase the Base Salary to be paid to Xxxx from time to
time, to reflect Xxxx'x performance and to maintain a compensation level
comparable to that of similarly situated executives in the financial
institutions industry, but the Base Salary may not be decreased below the Base
Salary specified above in this paragraph A without the written consent of
Xxxx. Xxxx'x salary shall be payable in accordance with the customary payroll
practices of the Bank and the Corporation, respectively, but in no event less
frequently than monthly.
B. From time to time, the Boards of Directors of
the Corporation and Bank shall apportion between the Bank and the Corporation
amounts payable hereunder without affecting Xxxx'x rights hereunder. Such
apportionment shall be made (I) on the basis of the judgment of such Boards of
Directors as to Xxxx'x relative responsibilities and contributions with
respect to the Bank and the Corporation, and (ii) on the basis of such other
factors as such Boards of Directors may deem appropriate. Any amounts not
allocated to the Bank hereunder shall be allocated to the Corporation.
3.2 Participation in Bonus Plan. Xxxx shall be entitled
to participate in such bonus or other incentive compensation plan(s) as
currently is or may hereafter be established by the Corporation or the Bank
for their respective executive officers during the Employment Period. Any
such bonus shall be payable in the manner specified by the appropriate Board
of Directors, or committee of such Board of Directors, at the time such bonus
is awarded.
3.3 Participation in Benefit Plans. The payments provided
for in Sections 3, 5 and 6 hereof, except where specifically provided
otherwise, are in addition to any other benefits to which Xxxx may be, or may
become, -entitled under any roup hospitalization, health, dental care, or
sick-leave plan, life or other insurance or death benefit plan, travel or
accident insurance, retirement income or pension plan or program of the
Corporation or Bank, or other present or future group employee benefit plan or
program of the Bank or Corporation, for which their executive officers are or
shall become eligible to receive during the Employment Period, and during any
subsequent period for which Xxxx shall be entitled to receive payments from
the Corporation under sections 5 and 6 to the extent permissible under the
general terms and provisions of such plans or programs and in accordance with
the provisions thereof. Xxxx shall contribute such amounts towards such
benefits as are required of all employees so long as he receives such
benefits. Nothing contained in this Agreement shall prevent the Board of
Directors of the Corporation or the Bank from amending or otherwise altering
any such plan, program or arrangement so long as such amendment or alteration
equitably affects all executive officers of the Bank or Corporation.
3.4 Salary Following Change-in-Control. In the event any
Change in Control of the Corporation, as defined in Section 4.1C, shall occur
and Xxxx shall not terminate this Agreement, Xxxx'x Base Salary shall be
increased by an amount equal to his average bonus paid during the most recent
two full calendar years prior to such transaction. In that event, any bonus
to which Xxxx would thereafter otherwise be entitled may be reduced (but not
to less than zero) by the amount of the increase in Base Salary resulting from
the operation of this paragraph.
3.5 Additional Benefits. The Corporation recognizes that
it is essential to the performance by Xxxx of his duties and responsibilities
that the Corporation, it its cost,
provide him with the use of certain facilities and that the Corporation incur
certain expenses during the Employment Period, as follows:
A. An office commensurate with his position, and a
secretary, as he requires, and the continued nonexclusive use of the offices
and facilities on the second floor of the Bank's building previously used by
Xxxx.
B. The exclusive use of an automobile comparable to
that now being used by Xxxx now or previously, which vehicle shall be no more
than two years old at any time hereunder.
C. Payment of or reimbursement to Xxxx, in
accordance with such policies and procedures as the respective Boards of
Directors of the Bank or the Corporation may establish from time to time, for
all reasonable travel, entertainment, country club dues and other expenses
incurred by Xxxx in the performance of his obligations under this Agreement;
except that country club dues shall not be paid for Xxxx unless there is a
change in control as defined herein or as otherwise specified by the Board.
X. Xxxx shall be entitled to four (4) weeks' paid
vacation per calendar year (prorated in any calendar year or in which Xxxx is
employed hereunder for less than such entire year).
E. Participation in the Bank's Split Dollar Life
Insurance Plan with coverage of $500,000 per a policy previously purchased.
4. TERMINATION OF EMPLOYMENT
4.1 Termination of Employment. Xxxx'x employment under
this Agreement may be terminated by the Corporation or Xxxx as follows:
A. Disability. If, as a result of Xxxx'x
incapacity due to physical or mental illness or injury, Xxxx shall have been
absent from his duties with the Corporation on a full time basis or he is
unable to substantially perform the services required for his 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
within thirty (30) days after written notice of potential termination is given
by either the Bank or the Corporation he shall not have
returned to the full-time performance of his duties within such notice period,
then Xxxx'x employment under this Agreement will terminate for "Disability".
B. Death. If Xxxx dies while employed under this
Agreement, his employment with the Corporation under this Agreement will
terminate as of the date of his death ("Date of Death").
C. Termination by Xxxx. Xxxx shall be entitled to
terminate his employment with the Corporation (I) if the Corporation defaults
or otherwise commits a breach of a material term or condition of this
Agreement, or (ii) for "Good Reason" as defined below or (iii) upon the
occurrence of a "Change in Control" as defined below.
For purposes of this Agreement "Good Reason" shall mean any
of the following:
1. The assignment to Xxxx of any duties
inconsistent with, or the reduction of powers or functions associated with
Xxxx'x position, title, duties, responsibilities and status with the
Corporation as set forth herein, or as later agreed upon by Xxxx and the
Corporation;
2. Any removal of Xxxx from, or any failure
to re-elect Xxxx to, any position(s) or office(s) Xxxx held immediately prior
to such action;
3. A reduction by the Corporation in Xxxx'x
annual base Compensation;
4. The Corporation's transfer of Xxxx to
another geographic location from his present office location, except for
required travel on the Corporation's business to an extent substantially
consistent with Xxxx'x business travel obligations immediately prior to the
date hereof,
5. The failure by the Corporation to continue
in effect any employee benefit plan, program or arrangement (including,
without limitation the Corporation's retirement plan, benefit equalization
plan, life insurance plan, health and accident plan, disability plan, deferred
compensation plan or long term stock incentive plan) in which Xxxx is
participating immediately prior to the date hereof (except that the
Corporation may institute or continue plans, programs or arrangements
providing Xxxx with substantially similar benefits); the
taking of any action by the Corporation which would adversely affect Xxxx'x
participation in or materially reduce Xxxx'x benefits under, any of such
plans, programs or arrangements; the failure to continue, or the taking of any
action which would deprive Xxxx, of any material fringe benefit enjoyed by Xxxx
immediately prior to the date hereof;
6. Any purported termination of Xxxx'x
employment by the Corporation during the term of this Agreement which is not
effected pursuant to all of the requirements of this Agreement; and, for
purposes of this Agreement, no such purported termination shall be effective.
For purposes of this Agreement, a "Change in Control" shall
mean and shall be deemed to have occurred, if at any time during the
Employment Period, directly or indirectly, in one or a series of transactions,
1. any person or group (as defined in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended,
(15 U.S.C. Section 78m(d) and 15 U.S.C. Section 78n(d) as in effect on the
date hereof other than the Corporation or Xxxx has acquired:
(a) more than twenty (20%) percent of
the outstanding common stock of the Corporation, or equivalent in voting power
of any class or classes of outstanding securities of the Corporation
ordinarily entitled to vote in elections of directors;
(b) irrevocable proxies representing
more than twenty (20%) percent of any class of voting stock of the
Corporation;
(c) any combination of voting stock and
irrevocable proxies representing more than twenty (20%) percent of any class
of voting stock of the Corporation; or
(d) the ability to control in any manner
the election of a majority of the directors of the Corporation.
2. Prior to any Change in Control, the
Xxxx/Xxxxxx family sells or otherwise disposes of fifty (50%) percent or more
of the voting securities of the Corporation owned by such family as of the
date hereof to a nonfamily member or members.
3. Any merger or consolidation of the Bank or
the Corporation into or with another entity has occurred or a sale of
substantially all of the Corporation shall have occurred following which a
majority of the voting stock of the surviving or acquiring corporation shall
be held by persons other than those persons who held a majority of the voting
stock of the Corporation immediately prior thereto.
D. Termination by Corporation. notwithstanding any
other provisions of this Agreement, the Corporation shall be entitled to
terminate Xxxx'x employment with or without "cause". For purposes of this
Agreement, "cause" shall mean (I) willful and continued failure by Xxxx to
perform his duties for the Corporation under this Agreement (as it may be
modified or supplemented in the event of a Change-in-Control) after at least
one warning in writing from the Corporation's Board of Directors identifying
specifically any such failure; (ii) the willful engaging by Xxxx in misconduct
which causes material injury to the Corporation as specified in a written
notice to Xxxx from the Board of Directors; or (iii) conviction of a crime,
other than a traffic violation, habitual drunkenness, drug abuse, or excessive
absenteeism other than for illness, after a warning (with respect to
drunkenness or absenteeism only) in writing from the Board of Directors to
refrain from such behavior. No act or failure to act on the part of Xxxx
shall be considered willful unless done, or omitted to be done, by Xxxx not in
good faith and without reasonable belief that the action or omission was in
the best interest of the Corporation.
4.2 Notice of Termination. Any purported termination by
the Corporation or by Xxxx in accordance with Section 4.1, (excluding Section
4.1B) shall be communicated by written Notice of Termination to the other
party or parties hereto in accordance with this Section 4.2. For purposes of
this Agreement, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Xxxx'x employment under the provision so
indicated.
4.3 Date of Termination, etc. "Date of Termination" shall
mean (a) if Xxxx'x employment is terminated for Disability, thirty (30) days
after a Notice of Termination is given (provided that he shall not have
returned to the performance of his duties on a full time basis during such
30-day period), and (b) if his employment is terminated for any other reason,
the
date specified in the Notice of Termination; provided, that if within
thirty (30) days after a Notice of Termination is given the party receiving
such Notice of Termination notifies the other party that a dispute exists
concerning the termination, the Date of Termination shall be the earlier of:
(I) the date upon which the dispute is finally determined by mutual agreement
of the parties or by a binding arbitration award entered in accordance with
Section 9 hereof; or, (ii) the expiration of the Employment Period then
existing under this Agreement; provided, further, 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 dispatch and diligence. Notwithstanding the pendency of any
such dispute, the Corporation will continue to pay Xxxx his full compensation
in effect when the notice giving rise to the dispute was given (including, but
not limited to, Base Salary) and continue him as a participant in all
compensation, benefit and insurance plans in which he was participating when
the notice giving rise to the dispute was given as though termination had not
occurred, until the dispute is finally resolved in accordance with this
Section at which time the parties shall adjust for any overpayment or
underpayment made. Amounts paid under this Section are in addition to other
amounts due under this Agreement and unless specifically provided otherwise
shall not be offset against to reduce any other amounts due under this
Agreement.
5. TERMINATION BENEFITS
5.1 Disability Termination Benefits. Upon the termination
of Xxxx'x employment with the Corporation as a result of "Disability" pursuant
to Section 4.1A, the Corporation shall pay to Xxxx a monthly disability
benefit equal to one hundred (100%) percent of his Base Salary, at the rate in
effect on the "Date of Termination", for a period of one year from and after
said date; provided, however, that any amounts payable under this Section 5.1
shall be reduced by any amounts paid to Xxxx under any other disability
program or policy (other than Social Security) maintained by the Bank or the
Corporation. If the amount of such disability insurance payments exceed the
amount otherwise payable under this Section 5.1, Xxxx may retain the entire
amount of such disability insurance payments inclusive of the excess, if any.
Such payments shall be made by the Corporation to Xxxx, or in the event of his
subsequent death, to his
beneficiary or beneficiaries, or his estate, as the case may be, in accordance
with the customary payroll practices of the Corporation.
During the period Xxxx is entitled to receive payments from the
Corporation under this Section 5.1, the Corporation shall maintain or cause to
be maintained life and health insurance benefits for Xxxx at least equivalent
to those he had at the Date of Termination with any amendments and/or
alterations subsequently made equitably to all executive officers of the Bank
and/or the Corporation. During the period Xxxx is entitled to receive payment
from the Corporation under this Section 5.1 he shall not be an agent of the
Corporation, and shall not be considered an "employee" of the Corporation
except as respects any requirements specifically imposed by law or as may
otherwise be required to continue any insurance benefits provided for in this
Section 5.1.
5.2 Benefits Payable Upon Death. Within thirty (30) days
after the Date of Death, the Corporation shall pay to Xxxx'x beneficiary or
beneficiaries, or his estate, as the case may be, a lump sum benefit equal to
one full year salary from the date of death.
5.3 Benefits Pavable Upon Termination by Xxxx. In the
event that Xxxx terminates his employment with the Corporation under Section
4.1C of this Agreement, the Corporation shall pay to Xxxx within thirty (30)
days of such termination as severance a lump sum equal to 2.99 times the
highest annual cash compensation, consisting solely of salary and bonus, paid
to Xxxx during any calendar year in each of the three calendar years
immediately prior to the Change-in-Control. The Corporation also shall
continue to provide Xxxx during the remainder of the Contract Period with
health, hospitalization and medical insurance, as were provided at the time of
the termination of his employment with the Corporation, at the Corporation's
cost; provided, however, if Xxxx enters into a new employment agreement with
the Corporation or such entity as survives the Change of Control, and at an
equal or greater rate of compensation and benefits to that which is provided
to Xxxx by the Corporation hereunder, or, if such surviving entity shall
assume the Corporation's obligations under this Agreement, which assumption
shall include but not be limited to obligations as to future Changes in
Control, with duties as agreed upon between Xxxx and such successor entity,
then, in either such event, the Corporation shall
have no obligation to provide, and Xxxx shall not be entitled to receive, any
of the foregoing benefits or the benefits provided under Section 6 hereof.
5.4 Termination by the Corporation for Cause. If Xxxx'x
employment under this Agreement is terminated by the Corporation for "cause"
(as defined in Section 4.1D), or if Xxxx voluntarily resigns his employment
other than pursuant to Section 4.1C, the Corporation shall pay to Xxxx his
Base Salary as then in effect that has accrued to the Date of Termination.
Unless otherwise determined by the Board of Director of the Corporation, Xxxx
shall have no right to receive compensation or other benefits under this
Agreement after such a termination for "cause" or following a voluntary
resignation except as otherwise provided in this Agreement.
5.5 Termination by the Corporation for Other than Cause.
If during the Employment Period the Bank or the Corporation or both of them
terminate Xxxx'x employment other than for "cause" (as defined in Section
4.1D) or other than for the reasons specified in Sections 1.3, 1.4, 1.5 and
1.6 of this Agreement, then in such event the Corporations shall, within
thirty (30) days following such termination, pay Xxxx, or in the event of his
subsequent death, his beneficiary or beneficiaries, or his estate, as the case
may be, as severance a lump sum equal to the aggregate amount of the future
Base Salary and bonus payments Xxxx would have received if he continued in the
employ of the Corporation for the remainder of the then existing Employment
Period of this Agreement at the highest rate of Base Salary and bonus paid to
Xxxx at any time under this Agreement or within two years prior to the date
hereof. Xxxx shall not be required to mitigate damages by seeking other
employment and payments required to be made hereunder shall not be reduced by
any other income which Xxxx may receive or by any set-offs or claims which may
exist against Xxxx for any reason whatsoever.
5.6 Certain Reduction of Payments by the Corporation.
A. Anything in this Agreement to the contrary
notwithstanding, prior to the payment of any lump sum amount payable
hereunder, the certified public accountants of the Corporation immediately
prior to a Change of Control (the "Certified Public Accountants) shall
determine as promptly as practical and in any event within 20 business days
following the termination of employment of Xxxx whether any payment or
distribution by the Corporation to or
for the benefit of Xxxx (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise) (a
"Payment") would more likely than not be nondeductible by the Corporation for
Federal income purposes because of Section 28OG of the Internal Revenue Code
of 1986, as amended (the "Code"), and if it is then the aggregate present
value of amounts payable or distributable to or for the benefit of Xxxx
pursuant to this Agreement (such payments or distributions pursuant to this
Agreement are hereinafter referred to as "Agreement Payments") shall be reduced
(but not below zero) to the reduced Amount. For purposes of this paragraph,
the "Reduced Amount" shall be an amount expressed in present value which
maximizes the aggregate present value of Agreement Payments without causing any
Payment to be nondeductible by the Corporation because of said Section 280G of
the Code.
B. If under paragraph A. of this section the
Certified Public Accountants determine that any Payment would more likely than
not be nondeductible by the Corporation because of Section 280G of the Code,
the Corporation shall promptly give Xxxx notice to that effect and a copy of
the detailed calculation thereof and of the Reduced Amount, and Xxxx may then
elect, in his sole discretion, which and how much of the Agreement Payments
shall be eliminated or reduced (as long as after such election the aggregate
present value of the Agreement Payments equals the Reduced Amount), and shall
advise the Corporation in writing of his election within 20 business days of
his receipt of notice. If no such election is made by Xxxx within such 20-day
period, the Corporation may elect which and how much of the Agreement Payments
shall be eliminated or reduced (as long as after such election the aggregate
present Value of the Agreement Payments equals the Reduced Amount) and shall
notify Xxxx promptly of such election. For purposes of this paragraph,
present Value shall be determined in accordance with Section 280G(d)(4) of the
Code. All determinations made by the Certified Public Accountants shall be
binding upon the Corporation and Xxxx shall be made within 20 business days of
a termination of employment of Xxxx. With the consent of Xxxx, the
Corporation may suspend part or all of the lump sum payment due Xxxx hereunder
until the Certified Public Accountants finish the determination and Xxxx (or
the Corporation, as the case may be) elect how to reduce the Agreement
Payments, if necessary. As promptly as practicable following such
determination and the elections hereunder, the Corporation shall pay to or
distribute to or for the
benefit of Xxxx, such amounts as are then due to Xxxx under this Agreement and
shall promptly pay to or distribute for the benefit of Xxxx in the future such
amounts as become due to Xxxx under this Agreement. It is hereby stipulated
that a reasonable and practicable time for payment to Xxxx shall be no later
than 10 days after a written request for payment is made by Xxxx.
C. As a result of the uncertainty in the application of
Section 280G of the Code, it is possible that Agreement Payments may have been
made by the Corporation which should not have been made ("Overpayment") or that
additional Agreement Payments which will have not been made by the Corporation
could have been made ("Underpayment"), in each case, consistent with the
calculation of the Reduced Amount hereunder. In the event that the Certified
Public Accountants, based upon the assertion of a deficiency by the Internal
Revenue Service against the Corporation or Xxxx which said Certified Public
Accountants believe has a high probability of success, determines that an
Overpayment has been made, any such Overpayment shall be treated for all
purposes as a loan to Xxxx which Xxxx shall repay to the Corporation together
with interest at the applicable Federal rate provided for in Section
7872(f)(2)(A) of the Code; provided, however, that no amount shall be payable
by Xxxx to the Corporation in and for the extent such payment would not reduce
the amount which is subject to taxation under Section 4999 of the Code. In
the event that the Certified Public Accountants, based upon controlling
precedent, determine that an Underpayment has occurred, any such
Underpayment shall be promptly paid by the Corporation to or for the benefit
of Xxxx together with interest at the applicable Federal rate provided for in
Section 7872(f)(2)(A) of the Code.
6. OTHER TERMINATION BENEFITS
6.1 Insurance. If Xxxx'x employment with the Corporation
shall be terminated either by Xxxx pursuant to the provisions of Section 4.1C
or by the Corporation without "cause"', the Corporation will continue or cause
to be continued the life and health insurance coverage substantially identical
to the coverage maintained by the Corporation for Xxxx prior to his severance.
Xxxx shall contribute such amounts toward such benefits as are required of all
employees of the Corporation so long as he receives such benefits.
6.2 Special Retirement Benefits. If Xxxx'x employment
with the Corporation shall be terminated either by Xxxx pursuant to the
provisions of Section 4.1C or by the Corporation or either of them without
"cause", Xxxx shall be entitled to receive "Special Retirement Benefits" from
the Corporation so that the total retirement benefits Xxxx receives from the
Corporation will approximate the total retirement benefits Xxxx would have
received under all qualified retirement plans (which shall not include
severance plans) of the Corporation in which Xxxx participates were Xxxx fully
vested under such qualified retirement plans as if Xxxx had continued in the
employ of the Corporation for the remaining term of this Agreement or until
his retirement. The benefits specified in this Section 6.2 will include all
ancillary benefits, such as early retirement and survivor rights and benefits
available at retirement. The amount payable to Xxxx or his beneficiary(s)
under this Section 6.2 shall equal the excess of (1) the benefits that would
be paid to Xxxx or his beneficiaries, under all retirement plans of the
Corporation in which Xxxx participates if Xxxx were fully vested under such
plans over (2) the benefits that are payable to Xxxx or his beneficiaries
under all retirement plans of the Corporation in which Xxxx 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 and shall be payable solely from the general assets of the
Corporation. These Special Retirement Benefits shall be payable at all times
and in the manner provided in the applicable retirement plans to which they
relate.
6.3 Split Dollar Insurance. If Xxxx'x employment with the
Corporation shall be terminated by him pursuant to Section 4.1C or by the
Corporation, or if the Corporation shall terminate Xxxx'x employment otherwise
than for cause, the Corporation shall continue to pay the premium for and
maintain the Broad National Bank Split Dollar Life Insurance or comparable
plan for and on behalf of Xxxx with coverage of $500,000 until such time as
said policy is fully paid.
6.4 Use of Vehicle. If Xxxx shall terminate his
employment with the Corporation pursuant to Section 4.1C or if the Corporation
shall terminate his employment otherwise than for cause, the Corporation shall
at its option provide Xxxx with the use of the late model car specified in
Section 3.4B for a period of twenty-four (24) months following the Date of
Termination or the reasonable value corresponding to such usage; provided,
however, that notwithstanding the foregoing Xxxx may in lieu thereof elect to
purchase said vehicle at its then present value by providing the Corporation
with written notice of such election.
6.5 Payments Upon Termination. Termination of this
Agreement on any grounds whatsoever will not affect the obligations of the
parties to make payment of any sums that have accrued or remain unpaid at
effective date of such termination.
7. FEDERAL INCOME TAX WITHHOLDING
The Corporation may withhold from any benefits payable under
this Agreement all federal, state, city or other taxes as shall be required
pursuant to any law or governmental regulation or ruling.
8. ARBITRATION
In the event that any claim, controversy, issue or other
dispute arises under this Agreement, the breach thereof, the termination of
Xxxx'x employment by the Corporation under Section 4 of this Agreement,
including, any claim based in whole or in part on federal or state
constitutions, statutes or regulations, local ordinances, the common law or
public policy, including, but not limited to Title VII of the Civil Rights Act
of 1964, the Age Discrimination in Employment Act of 1967, the Employee
Retirement Income Security Act of 1974, Americans with Disabilities Act, the
Worker Adjustment and Retraining Notification Act, the Employee Polygraph
Protection Act of 1988, the Occupational Safety and Health Act, the Fair Labor
Standards Act, the Civil Rights Act of 1971, the Rehabilitation Act of 1973
and the Vietnam Era Veterans Readjustment Assistance Act of 1974, or the
amount of any payments under Sections 5 or 6, if the claim, controversy, issue
or dispute is not settled by agreement among the parties, the dispute shall be
settled by a panel of three (3) arbitrators in the State of New Jersey, the
arbitrators to be chosen by The American Arbitration Association, under the
auspices of, and in accordance with the applicable rules of, the American
Arbitration Association then in effect, and the decision of the three
arbitrators shall be final and conclusive on the parties and judgment upon
such decision may be entered in any court having jurisdiction thereof. The
award of the arbitrators shall be in writing and shall specify the factual and
legal basis for the award. Xxxx shall be entitled to reimbursement by the
Corporation for all reasonable, legal and other professional
fees and expenses incurred by him in such arbitration or in enforcing the
award, including the reasonable attorneys' fees. The parties agree that
resolution of any such claim, controversy, issue or other dispute pursuant to
the foregoing arbitration proceeding is intended to be final and binding on
them and any award rendered by such arbitrator shall constitute a complete,
final and binding adjudication of any and all legal or factual issues
pertaining to or arising out of the matter that gave rise to the controversy
or dispute. The provisions of this Article 8 shall survive the termination of
this Agreement for any reason whatsoever.
9. ENTIRE AGREEMENT
This writing shall constitute the entire Agreement of the
parties as to the employment and compensation of Xxxx by the Corporation, and
shall supersede any and all prior agreements and understandings, whether they
be oral or in writing.
10. SEVERABILITY
If, for any reason, any provision of this Agreement is held
invalid, such invalidity shall not effect any other provision of this
Agreement not held so invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity
shall in no way affect the rest of such provision not held so invalid and the
rest of such provision together with all provisions of this Agreement shall to
the full extent consistent with law continue in full force and effect.
11. AMENDMENT OF AGREEMENT
This Agreement may not be modified or amended except by
instrument in writing signed by the parties hereto.
12. WAIVER
No term or condition of this Agreement shall be deemed to
have been waived, or shall there be any estoppel against the enforcement of
any provision of this Agreement, except by a written instrument executed by
the party charged with such waiver or estoppel. No such written waiver shall
be deemed a continuing waiver unless specifically stated therein, and each
waiver shall operate as to the specific term or condition waived and shall not
constitute a
waiver of such term or condition for the future nor as to any act other than
that specifically waived.
13. HEADINGS
Headings used in this Agreement are for convenience only and
shall not affect the construction of this Agreement.
14. BINDING EFFECT AND GOVERNING LAW
All of the terms and provisions of this Agreement shall be
binding upon, shall inure to the benefit of, and be enforceable by and against
Xxxx and his executors, administrators and heirs and the Corporation and their
respective permitted successors and assigns. This Agreement has been executed
and delivered in the State of New Jersey and its validity, interpretation,
performance and enforcement shall be governed by the laws of said State.
15. NO ATTACHMENT
Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge or hypothecation or
to execution, attachment, levy or similar process or assignment by operation
of law, and any attempt to voluntary or involuntary, to affect any such action
shall be null, void and of no effect.
16. NONASSIGNABILITY
Neither this Agreement nor any right or interest hereunder
shall be assignable by Xxxx, his beneficiaries or legal representatives
without the Corporation's prior written consent; provided, however, that
nothing in this Section 19 shall preclude (a) Xxxx from designating a
beneficiary to receive any benefit payable hereunder upon his death, or (b)
the executors, administrators or other legal representatives of Xxxx or his
estate from assigning any rights hereunder to the person or persons entitled
thereto.
IN WITNESS WHEREOF, the Corporation has caused this Agreement
to be executed and their respective seals to be affixed hereunto by their
duly authorized officers, and Xxxx, has signed this Agreement, all as of
the date first written above.
ATTEST: BROAD NATIONAL BANCORPORATION
/s/ Xxxxx Xxxxx By /s/ Xxxx X. Xxxxxx
Secretary
WITNESS:
/s/ Xxxxxxxx X. Xxxxxxxxxx /s/ Xxxxxx X. Xxxx
XXXXXX X. XXXX
BROAD NATIONAL BANK, a national banking association organized under
the laws of the United States of America, hereby acknowledges and agrees to be
bound to the extent applicable by the terms of the Employment Agreement dated
October 16, 1995 between XXXXXX X. XXXX and BROAD NATIONAL BANCORPORATION and
guarantees payment and performance of the terms of said agreement to the
extent permitted by the laws of New Jersey and the laws of the United States
of America.
ATTEST: BROAD NATIONAL BANK
/s/ Xxxxx Xxxxx By /s/ Xxxx X. Xxxxxx
Secretary Xxxx X. Xxxxxx
President & COO
WITNESS:
/s/ Xxxxxxxx X. Xxxxxxxxxx Dated: 10/16/95
