EXHIBIT 10.12
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL AGREEMENT (this "Agreement"), dated as of the
1st day of August, 2006, is by and between CENTRAL JERSEY BANCORP, a New Jersey
corporation (the "Company" or "Bancorp"), and Xxxxxx X. Xxxxx (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;
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;
WHEREAS, the Company and the Executive previously entered into a
certain Change of Control Agreement, dated as of January 1, 2005, regarding
matters pertaining to a change of control of the Company (the "Prior Change of
Control Agreement"); and
WHEREAS, this Agreement supercedes and replaces in its entirety the
Prior Change of Control Agreement.
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 August 1,
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2006 (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 (a) the
provisions of Sections 4 through 12 shall survive for a period of 6 months from
the effective date of any termination of Executive's employment with the
Company, and (b) if a Change of Control Event (as defined below) shall have
occurred during the term of this Agreement, this Agreement shall continue in
effect for such period as is necessary to effectuate the rights of the Executive
and Bancorp hereunder and for the Executive and Bancorp to fulfill 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, 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, he 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.
2. Relationship of the Parties. The Executive shall serve, at the
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discretion of the Board, as a Senior Executive Vice President and the Chief
Operating Officer and Secretary of Bancorp and 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.
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(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
retained by the successor entity or group (the "Successor Entity") for a period
of at least 36 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 his 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 he 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 be deemed to have occurred, with
respect to the Executive, if the Executive is part of a purchasing group which
consummates the Change of Control transaction. 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 by a
majority of the non-employee members of the Board). In the event that the
Executive is to receive Severance as provided for herein, the Severance shall be
payable in-full by the Company within 10 business days after the effective date
of the Change of Control Event.
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-full by the Company within 10 business days after the effective date
of the termination of Executive's employment without Cause.
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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 30, plus (ii) an
amount equal to the product of (A) the quotient of 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, divided by 12, multiplied by (B) 30,
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 30. In addition, for purposes of this Agreement,
"Cause" shall mean as follows: (i) the Executive willfully, or as a result of
gross negligence on his part, fails substantially to (A) carry out the lawful
policies of the Board or (B) discharge his 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 36 month period commencing on the effective date of the
Change of Control Event or (ii) dies, becomes disabled or voluntarily terminates
his employment with the Successor Entity for any other reason or no reason
during the 30 month period commencing on the 6 month anniversary of the
effective date of the Change of Control Event (the "Six 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),
he shall receive Severance for the number of months equal to the remainder of 30
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 30 months Severance. If the Executive dies, becomes disabled or
terminates his employment with the Successor Entity as provided in Subsection
3(b)(ii), he shall receive Severance for the number of months equal to the
remainder of 30 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 he
terminates his 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. To calculate the Severance payable in
accordance with this Section 3(b), the number 30 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-full within 10 business days
after the termination of
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Executive's employment with the Successor Entity unless the Executive and the
Successor Entity otherwise agree to another payment schedule. 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 his employment with the Successor Entity
terminates after the end of the 36 month period which commences on the effective
date of the Change of Control Event and, as a result, he 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 his employment with the
Successor Entity terminate for any reason after the expiration of the 36 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
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receive the Severance provided for herein, the Executive agrees as follows:
(a) During his 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 his
employment with the Company, and he is not entitled to any Severance with
respect to any such termination, the provisions of this Section 4(a) shall not
apply to the Executive.
(b) During his 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 his or her employment, or otherwise cease his 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.
(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
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that by reason of the Executive's employment with the Company, the Executive has
and will hereafter, from time to time during his 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
his employment will he disclose or use the Confidential Information or materials
to or with any person, firm, business, corporation, association, or other entity
for any
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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,
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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 his employment by the Company shall be the property of the
Company and shall be delivered to the Company upon the termination of his
employment or at any other time upon request of the Company.
7. Equitable Remedies. The Company and the Executive acknowledge and
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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
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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
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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
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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, including the Prior
Change of Control Agreement. 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
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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
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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
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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
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counterparts, all of which taken together shall constitute one and the same
agreement.
14. Notices. All notices required or permitted hereunder shall be in
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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: Xxxxxx X. Xxxxx
0000 Xxxxxx Xxxxx Xxxxx
Xxxx, 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
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shall not affect the interpretation or construction of this Agreement.
16. Waiver. The failure of either party to enforce any provision of
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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
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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.]
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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/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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