SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (the "Agreement") made as of the 21st day of
July, 1999 (the "Commencement Date") between Vista Bancorp, Inc., a corporation
duly organized under the laws of the State of New Jersey, with offices at 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx 00000 ("Vista" or the Company"), and
Xxxxxxx Xxxxxxx of 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx 00000 (the
"Employee").
WHEREAS, the Employee has been a loyal and long-term employee of Vista or
a related entity for many years; and
WHEREAS, Vista wishes to provide the Employee with the comfort of knowing
that if the Employee loses his or her position with Vista, or any related
entities, as a result of any involuntary termination or upon a "change in
control", the Employee will be entitled to receive a severance benefit; and
WHEREAS, the Employee acknowledges that the Company does not maintain any
severance programs as defined under the Employee Retirement Income Security Act
of 1974 ("ERISA"), and that, prior to the Commencement Date, the Employee is not
entitled to any severance benefits upon a termination of employment.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following words and
phrases shall be defined as follows:
a. "Base Salary" shall mean the base salary which is payable on a
regular basis to the Employee, excluding bonuses and taxable fringe
benefits.
b. "Cause" shall include, but not be limited to, any false statement
that was intentionally or negligently made, contained in any
corporate records; the commission by the Employee of any crime or
fraud against the Company or its property, or any crime involving
moral turpitude or reasonably likely to bring discredit upon the
Company; and any violation of the Company's operating policies.
c. "Change in Control" shall mean: (i) the acquisition of ownership of
stock of the Company, by any person (including, without limitation,
a corporation, trust, partnership, joint venture, limited liability
company (a "Person") or by any group of Persons), whether directly,
indirectly, beneficially or of record, which acquisition, together
with stock held by such person or group, represents more than 50% of
the total voting power of all outstanding stock of the Company
(provided that no Change in Control shall occur under this
subparagraph (i) if the
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Person acquiring any additional stock already possessed more than
50% of the total fair market voting power of the stock of the
Company); (ii) any merger or consolidation of the Company which the
stockholders of the Company before such merger or consolidation do
not, as a result of the merger or consolidation, own at least 50% of
the merger or consolidation; or (iii) any nomination and election of
50% or more of all members of the Board of Directors of the Company
that occurs at any 3 consecutive meetings of the shareholders, whose
election is without the recommendation of the Board. "Change in
Control" shall not include the acquisition of the Company's stock by
any Company employee benefit plans or any actions by the members of
the Board of Directors, when acting as the Board of Directors.
d. "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
e. "Termination Date" shall mean the last day the Employee performs any
services for Vista, or any related entity or successor entity, and
is paid wages as an employee, exclusive of vacation and severance
payments, and excluding any leave of absence periods.
2. Term. The term of the Agreement shall commence on the Commencement Date,
and shall continue on an uninterrupted basis until terminated with the
mutual consent of the Employee and Vista, or any related entity or
successor entity, or upon the voluntary termination of the Employee's
employment with Vista or any successor entity. Upon the Employee's
Termination Date, no additional services shall be required by the Employee
(unless provided otherwise under any consulting agreement), and any
payments due for the performance of any services, and reimbursement for
any expenses, shall be made within a period of 30 days from the
Termination Date.
3. Condition for Severance Benefits. In order to be entitled to any severance
benefits, the Employee agrees to execute a General Release that shall
fully release and forever discharge the company and the shareholders,
officers, employees and directors of the Company and any and all related
companies, from all claims or demands the Employee may have based on
employment with the Company. These claims shall include, but are not
limited to, claims arising under the Constitution of the United Sates, a
release of any rights or claims the Employee may have under the Age
Discrimination in Employment Act of 1967; Title VII of the Civil Right Act
of 1964; the Civil Rights Act of 1966; the Equal Pay Act; or any other
federal, state or local laws or regulations prohibiting employment
discrimination; the Employee Retirement Income Security Act of 1974;
Executive Orders 11246 and 11141; the Constitution of the State of New
Jersey or any other states in which the Employee resides or works; any New
Jersey or other state laws against discrimination; any claims of breach of
public policy of the State of New Jersey or other state, negligence,
breach of contract, wrongful discharge, constructive discharge, breach of
an implied covenant of good faith and fair dealings; any express or
implied
24
contracts with the Company or any related companies; any federal or state
common law and any federal, state or local statutes, ordinances and
regulations.
The General Release shall be in a format prepared by the Company, which
shall be consistent with the above provisions and shall comply with the
Older Workers Benefit Protection Act of 1990 ("OWBPA"), including a 21 day
period to review the General Release, and an 7 day revocation period (or
any other periods required under any future laws). Any severance payments
shall be the Employee's exclusive right and remedy against the Company.
4. Severance Benefits. The Employee's employment may be terminated by the
Employee or by the Company or any related entity or successor entity
without "Cause", notice or liability at any time. Upon the occurrence of
any termination of employment, the following severance benefits shall be
provided, depending upon the specific circumstances of any termination:
a. Basic Severance Benefit. If the Company, or any related entity or
successor entity terminates the Employee's employment with the
Company for any reason, without "Cause", the Employee shall be
entitled to a Basic Severance Benefit equal to payment of the
Employee's Base Salary for a period of 24 months.
b. Change in Control Severance Benefit. If the Company, or any related
entity or successor entity terminates the Employee's employment in
anticipation of a reorganization or a "Change in Control", or if the
Company, or any related entity or any successor entity terminates
the Employee's employment following a Change in Control for any
other reasons without "Cause", or if the Employee's employment is
"constructively terminated" as defined in Section 8, the Employee
shall receive a payment equal to the Employee's Base Salary for a
period of 36 months.
All severance benefits shall be paid in accordance with the Company's
normal payroll practices or in a single lump sum payment, within the
discretion of the Company. However, the severance benefit shall not be
paid until after 8 days after receipt of an executed copy of a General
Release by the Company as provided in Section 3 and the return of all
property to the Company, as provided in Section 10. Severance benefits
shall also be reduced to the extent of any advance payments, for any
excess expense reimbursements, and for any amounts owed to the Company by
the Employee (other than normal personal residence, home equity and
similar loans).
In the event of the death of the Employee after the commencement of
entitlement to any severance benefit payable under Section 4, all benefits
shall be paid in a lump sum to the Employee's spouse, or if no spouse
exists, to the Employee's estate.
Notwithstanding any interpretation to the contrary, in no event shall the
Employee be entitled to both the Basic Severance Benefit and the Change in
Control Severance
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Benefit.
5. Benefits. Upon the occurrence of any termination of employment by the
Company, or any related entity or successor entity without "Cause", or
upon the occurrence of a "constructive termination" in accordance with
Section 8, the Employee shall be entitled to the following general
benefits.
a. All salary and wages through the Termination Date shall be paid in
accordance with the Company's normal payroll procedures.
b. All accrued vacation pay shall be included in the Employee's final
paycheck.
c. The Employee shall be entitled to elect to receive continuation
health coverage under the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA") after his Termination Date, which is the date
of the "qualifying event" under COBRA. The Company shall pay the
full cost of any COBRA coverage elected by the Employee, or any
member of the Employee's immediate family for a period of up to 18
months.
d. All medical, group-term life insurance, long-term disability,
short-term disability, and other welfare benefits shall be
terminated in accordance with the provisions of all plans. The
Employee may be entitled to individual conversion privileges under
the various policies. The Company shall provide such information to
the Employee regarding all individual conversion rights.
e. The Employee shall be entitled to a distribution of all benefits
under the Company retirement programs, including the Vista Pension
and Section 401(k) Plans, in accordance with the provisions of all
Plan documents. All severance benefits paid in the Plan Year in
which the Termination Date occurs (but not any subsequent Plan
Years) shall be treated as Compensation for purposes of Employee
Salary Reduction Contributions to the Section 401(k) Plan, if
permitted in accordance with the provisions of the Section 401(k)
Plan, unless the Employee directs otherwise. For purposes of all
other Company Contributions, all severance benefits shall be
considered as Compensation to the extent required under the Section
401(k) Plan.
f. The Employee shall be entitled to exercise any vested Stock Options,
in accordance with the provisions of the 1998 Stock Compensation
Plan, and any individual Option Agreements.
g. The Employee shall become vested in any unvested Stock Grants under
the XXX Plan.
h. Any executive benefits shall terminate on the Termination Date.
i. The Employee shall be entitled to state unemployment benefits, in
accordance
26
with the rules for the State of New Jersey.
Notwithstanding any provision to the contrary, except as provided in this
Agreement, the payment of any severance benefits shall not be treated as
extending any individual's employment for any employee benefit or
employment purposes.
6. Voluntary Termination, Retirement, Death and Disability. The Employee
shall not be entitled to any severance benefits in the event of any
voluntary termination of employment either before, or after, any Change in
Control or other corporate events, unless a "constructive termination"
shall occur, as defined in Section 8. Furthermore, notwithstanding any
provisions to the contrary, no severance benefits shall be payable in the
event the Employee becomes disabled, dies, or otherwise retires in
accordance with the normal policies of the Company.
7. Discharge for Cause. The Company, or any related entity or successor
entity may immediately terminate this Agreement and the Employee's
employment at any time for "Cause". Upon termination of this Agreement for
Cause, the Company shall have no further obligations to the Employee other
than to pay for services performed and reimbursement for expenses payable
as of the date of such termination, and to provide any benefits as legally
required under Section 4. However, the Employee shall have no right to the
payment of any Basic Severance or Change in Control Severance Benefits in
the event of a termination for "Cause".
8. Change in Control.
a. Upon the occurrence of a "Change in Control" of the Company,
including any affiliated or subsidiary companies, followed by the
involuntary termination of the Employee's employment within a period
of 1 year after such Change in Control, other than for "Cause",
retirement, death or disability, the Employee shall be entitled to
receive all severance benefits identified in Sections 4(b) and 5 of
this Agreement, and any other benefits to which the Employee is
entitled under any other Company programs. Upon the occurrence of a
Change in Control and a "Constructive Termination" of the Employee,
the Employee shall also have the right to voluntarily terminate the
Employee's employment at any time for a period of up to 1 year after
such Change in Control, and to receive the severance benefits
identified in Section 4(b) and 5. For purposes of this Agreement, a
"Constructive Termination" shall be deemed to occur as a result of
any reduction in the Employee's Base Salary determined as of the
date of the Change in Control; or the relocation of the Employee's
principal place of employment by more than 70 miles from its
location immediately prior to the Change in Control. Upon the
occurrence of any of these events, the Employee shall provide the
Company with not less than 14 days prior written notice of
resignation given within a reasonable period of time not to exceed 3
months after the occurrence of the last event giving rise to said
Constructive Termination. If the Company in good faith disputes that
the Employee is entitled to terminate the Employee's employment due
to a
27
Constructive Termination, it shall so inform the Employee in writing
within 14 days of the written notice provided by the Employee. If
disputed by the Company, the parties shall promptly proceed to
arbitration in accordance with Section 21 of this Agreement. Pending
resolution of the dispute by arbitration, the Company shall continue
to pay the Employee's Base Salary and benefits. If it is ultimately
determined that the Employee did not have grounds for voluntarily
terminating the Employee's employment, the Employee shall return to
the Company, without interest, all cash compensation received by the
Employee subsequent to the day the Employee's employment was
terminated.
b. Notwithstanding any provision to the contrary, in the event that:
i. The aggregate payments of benefits to be made or afforded to
the Employee under this Agreement (the "Termination Benefits")
would be deemed to include an "excess parachute payment" under
Section 280G of the Code or any successor thereto; and
ii. If such Termination Benefits were reduced to an amount (the
"Non-Triggering Amount"), the value of which is $1 less
than an amount equal to the total amount of any payments
permissible under Section 280G of the Code or any successor
thereto.
then the Termination Benefits to be paid to the Employee shall be so
reduced so as to be a Non-Triggering Amount. The allocation of the
reduction required hereby among the Termination Benefits provided by
the preceding paragraphs of this Section 8 shall be determined by
the Employee, with the consent of the Company.
c. Notwithstanding the foregoing provisions, if after the application
of Section 8(b) above, it is determined that the Employee received
an excess parachute payment despite the reduction in the Employee's
Termination Benefits, the excess of such Termination Benefits paid
to the Employee of 2.99 times the Employee's "base amount", as
defined in Section 280G of the Code, shall be treated as a loan to
the Employee and the Employee shall be required to repay such amount
to the Company, or the successor of the Company, within 5 years of
the date of such determination, with interest at the prime rate, as
set forth from time to time in the Wall Street Journal.
9. Trade Secrets, Confidential and/or Proprietary Information. The Employee
shall regard and preserve as confidential: (i) all trade secrets and/or
other proprietary and/or confidential information belonging to the
Company; and (ii) all trade secrets and/or other proprietary and/or
confidential information belonging to a third party which have been
confidentially disclosed to the Company, which trade secrets and/or other
proprietary and/or confidential information described in (i) and (ii)
above (collectively, "Confidential Information") have been or may be
developed or obtained by or disclosed to the Employee by reason of the
Employee's relationship with the Company. The Employee
28
shall not, without written authority from the Company to do so, use for
the Employee's own benefit or purposes, or the benefit or purpose of any
person or entity other than the Company, nor disclose to others, either
during the term of this Agreement or thereafter, except as required in the
course of performance of services under this Agreement, any Confidential
Information. This provision shall not apply to the Employee's general
expertise and know-how, nor to Confidential Information that has been
voluntarily disclosed to the public by the Company, or otherwise entered
the public domain through lawful means. Confidential information shall
include, but not be limited to, all nonpublic information relating to the
Company's (i) business, research, development and marketing plans,
strategies and forecasts; (ii) business; (iii) products (whether existing,
in development, or being contemplated); (iv) customers' identities,
usages, and requirements; (v) reports; (vi) formulas; (vii)
specifications; (viii) designs, software and other technology; and (ix)
terms of contracts.
10. Return of Documents. Upon the termination of the Employee's employment,
the Employee shall return all media on which any Confidential Information
may be recorded or located, including, without limitation, documents,
program source codes, samples, models, blueprints, photocopies,
photographs, drawings, descriptions, reproductions, cards, tapes, discs
and other storage facilities (collectively "Documentation") made by the
Employee or that come into the Employee's possession by reason of the
Employee's relationship hereunder with the Company are the property of the
Company and shall be returned to the Company. The Employee shall not
deliver, reproduce, or in any way allow any Documentation to be delivered
or used by any third party without the written direction or consent of a
duly authorized representative of the Company.
11. Covenant Not to Compete. The Employee agrees that during the Employee's
association with the Company and for 2 years after the Employee's
Termination Date, the Employee shall not, directly or indirectly, through
any other person, firm, corporation or other entity, compete with the
Company, anywhere within a radius of 30 miles from 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxx Xxxxxx 00000, in the performance of banking services,
including the operation of branches for any competing entities within the
30 mile radius; or within 10 miles of any branches of the Company or any
related entity prior to any Change in Control. The Company and the
Employee agree that the Company's business is regional in scope and is
highly competitive. The Employee, therefore acknowledges that the scope of
this Non-Solicitation is reasonable, and applies in the context of any
voluntary or involuntary termination of employment. In the event that any
aspect of this covenant is deemed to be unreasonable by a court, the
Employee shall submit to the reduction of either the time or territory to
such an area or period as the court shall deem reasonable. In the event
the Employee violates this covenant, then the time limitation shall be
extended for a period of time equal to the pendency of such proceedings,
including appeals.
12. No Solicitation of Employees. During the course of employment with the
Company, the Employee shall come into contact and become familiar with the
Company's employees, their knowledge, skills, abilities, salaries,
commissions, draws, benefits, and
29
other matters with respect to such employees, all of which information is
not generally known to the public, but has been developed, acquired or
compiled by the Company at its great effort and expense. Any solicitation,
luring away or hiring of such employees of the Company shall be highly
detrimental to the business of the Company and may cause serious loss of
business and great and irreparable harm. Consequently, the Employee
covenants and agrees that during the course of employment with the Company
and for a period of 1 year after the Employee's Termination Date, whether
voluntary or involuntary, the Employee shall not, directly or indirectly,
whether on behalf of the Employee or others, solicit, lure or hire away
any employees of the Company or assist or aid in any such activity.
13. Waivers. A waiver by either party of any term or condition of this
Agreement in any instance shall not be deemed or construed to be a waiver
of such term or condition for the future, or of any subsequent breach
thereof. All rights, remedies, undertakings or obligations contained in
this Agreement shall be cumulative and none of them shall be in limitation
of any other right, remedy, undertaking or obligation of either party.
14. Severability. If any one or more provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
15. Injunction Relief. Damages may be an inadequate remedy in the event of an
intended, threatened or actual breach by the Employee of any of the
provisions of this Agreement. Any breach by the Employee may cause the
Company great and irreparable injury and damage. To the extent that such
injury and damage can be demonstrated to a court of competent
jurisdiction, the Company shall be entitled, without waiving any
additional rights or remedies otherwise available to the Company at law,
or in equity or by statute, to injunctive and other equitable relief in
the event of an intended, threatened, or actual breach by the Employee of
any said covenants.
16. Liability Coverage. The Company, and any related entity or successor
entities agrees to indemnify the Employee in accordance with the terms of
the Vista Bylaws. The Company also agrees to continue to provide any
existing officers and directors insurance and/or liability policies
covering the Employee through any Termination Date, and shall use its best
efforts to continue to maintain the policies in effect at the time of
termination or comparable policies covering the Employee for the
Employee's period of employment with the Company, and for a period of 3
years after the date of any termination. In no event shall the Employee
receive any lesser officers and directors protection, than is provided to
the current active Board of Directors.
17. Execution of Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
30
18. Entire Agreement. This Agreement contains the entire agreement between the
Employee and the Company with respect to the transactions contemplated
herein, and supersedes all previous written and oral negotiations,
commitments, and understandings. Its terms shall not be altered or
otherwise amended except pursuant to an instrument in writing signed by
each of the parties hereto and making specific reference to this
Agreement.
19. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Employee, his or her heirs, executors, administrators, and
legal representations, and the Company, it successors and assigns.
20. Amendment. This Agreement may not be altered, changed, amended or
terminated except by written agreement signed by the Employee and the
Company.
21. Arbitration. Any controversy or claim arising out of or relating to this
Agreement shall be settled by arbitration in accordance with the rules of
the American Arbitration Association. The arbitration award shall be final
and binding and judgement upon the award rendered in such arbitration may
be entered in any court having jurisdiction thereof.
22. Right to Withhold. The Company shall have the right to deduct from
payments due to the Employee under this Agreement, any and all Federal,
state or local taxes, if any, required by law to be withheld with respect
to such payments.
23. Written Notices. Any notice, request or other document to be given
hereunder by the Company to the Employee or by the Employee to the Company
shall be in writing and delivered personally or sent by registered or
certified mail, postage prepaid and addressed as follows:
31
If to the Company:
Vista Bancorp, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
If to the Employee:
Xxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxxxx 00000
24. Non-Defamation. During the course of the Employee's employment by the
Company, or any related entity or successor entities, or at any time
thereafter, the Employee shall not, directly or indirectly, in public or
private, deprecate, impugn or otherwise make any remarks that would tend
to or be construed to tend to defame the Company, or any related entity or
successor entities, or their reputations, nor shall the Employee assist
any other person, firm or company in so doing. The Company also agrees
that it will not, directly or indirectly, in public or private, deprecate,
impugn or otherwise make any remarks that would tend to or be construed to
tend to defame the Employee or the Employee's reputation, nor will the
Company assist any other person, firm or entities in engaging in such
activities.
25. References. After the termination of the Employee's employment with the
Company, or any related entity or successor entities, reference inquiries
from prospective employers shall be handled by only verifying the
Employee's dates of employment, last position held, and levels of
Compensation.
26. New Jersey Law. The Employee and the Company agree that this Agreement and
any interpretation thereof shall be governed by the laws of the State of
New Jersey.
27. Headings. The headings contained in this Agreement are for reference only.
In the event of a conflict between a heading and the context of any
Section, the context of the Section shall control.
WITNESS XXXXXXX XXXXXXX
------------------------------- ------------------------------------
WITNESS VISTA BANCORP, INC.
------------------------------- ------------------------------------
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SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (the "Agreement") made as of the 21st day of
July, 1999 (the "Commencement Date") between Vista Bancorp, Inc., a corporation
duly organized under the laws of the State of New Jersey, with offices at 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx 00000 ("Vista" or the Company"), and
Xxxxx X. Xxxxxxx of 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx 00000 (the
"Employee").
WHEREAS, the Employee has been a loyal and long-term employee of Vista or
a related entity for many years; and
WHEREAS, Vista wishes to provide the Employee with the comfort of knowing
that if the Employee loses his or her position with Vista, or any related
entities, as a result of any involuntary termination or upon a "change in
control", the Employee will be entitled to receive a severance benefit; and
WHEREAS, the Employee acknowledges that the Company does not maintain any
severance programs as defined under the Employee Retirement Income Security Act
of 1974 ("ERISA"), and that, prior to the Commencement Date, the Employee is not
entitled to any severance benefits upon a termination of employment.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following words and
phrases shall be defined as follows:
f. "Base Salary" shall mean the base salary which is payable on a
regular basis to the Employee, excluding bonuses and taxable fringe
benefits.
g. "Cause" shall include, but not be limited to, any false statement
that was intentionally or negligently made, contained in any
corporate records; the commission by the Employee of any crime or
fraud against the Company or its property, or any crime involving
moral turpitude or reasonably likely to bring discredit upon the
Company; and any violation of the Company's operating policies.
h. "Change in Control" shall mean: (i) the acquisition of ownership of
stock of the Company, by any person (including, without limitation,
a corporation, trust, partnership, joint venture, limited liability
company (a "Person") or by any group of Persons), whether directly,
indirectly, beneficially or of record, which acquisition, together
with stock held by such person or group, represents more than 50% of
the total voting power of all outstanding stock of the Company
(provided that no Change in Control shall occur under this
subparagraph (i) if the Person acquiring any additional stock
already possessed more than 50% of the
33
total fair market voting power of the stock of the Company); (ii)
any merger or consolidation of the Company which the stockholders of
the Company before such merger or consolidation do not, as a result
of the merger or consolidation, own at least 50% of the merger or
consolidation; or (iii) any nomination and election of 50% or more
of all members of the Board of Directors of the Company that occurs
at any 3 consecutive meetings of the shareholders, whose election is
without the recommendation of the Board. "Change in Control" shall
not include the acquisition of the Company's stock by any Company
employee benefit plans or any actions by the members of the Board of
Directors, when acting as the Board of Directors.
i. "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
j. "Termination Date" shall mean the last day the Employee performs any
services for Vista, or any related entity or successor entity, and
is paid wages as an employee, exclusive of vacation and severance
payments, and excluding any leave of absence periods.
28. Term. The term of the Agreement shall commence on the Commencement Date,
and shall continue on an uninterrupted basis until terminated with the
mutual consent of the Employee and Vista, or any related entity or
successor entity, or upon the voluntary termination of the Employee's
employment with Vista or any successor entity. Upon the Employee's
Termination Date, no additional services shall be required by the Employee
(unless provided otherwise under any consulting agreement), and any
payments due for the performance of any services, and reimbursement for
any expenses, shall be made within a period of 30 days from the
Termination Date.
29. Condition for Severance Benefits. In order to be entitled to any severance
benefits, the Employee agrees to execute a General Release that shall
fully release and forever discharge the company and the shareholders,
officers, employees and directors of the Company and any and all related
companies, from all claims or demands the Employee may have based on
employment with the Company. These claims shall include, but are not
limited to, claims arising under the Constitution of the United Sates, a
release of any rights or claims the Employee may have under the Age
Discrimination in Employment Act of 1967; Title VII of the Civil Right Act
of 1964; the Civil Rights Act of 1966; the Equal Pay Act; or any other
federal, state or local laws or regulations prohibiting employment
discrimination; the Employee Retirement Income Security Act of 1974;
Executive Orders 11246 and 11141; the Constitution of the State of New
Jersey or any other states in which the Employee resides or works; any New
Jersey or other state laws against discrimination; any claims of breach of
public policy of the State of New Jersey or other state, negligence,
breach of contract, wrongful discharge, constructive discharge, breach of
an implied covenant of good faith and fair dealings; any express or
implied
34
contracts with the Company or any related companies; any federal or state
common law and any federal, state or local statutes, ordinances and
regulations.
The General Release shall be in a format prepared by the Company, which
shall be consistent with the above provisions and shall comply with the
Older Workers Benefit Protection Act of 1990 ("OWBPA"), including a 21 day
period to review the General Release, and an 7 day revocation period (or
any other periods required under any future laws). Any severance payments
shall be the Employee's exclusive right and remedy against the Company.
30. Severance Benefits. The Employee's employment may be terminated by the
Employee or by the Company or any related entity or successor entity
without "Cause", notice or liability at any time. Upon the occurrence of
any termination of employment, the following severance benefits shall be
provided, depending upon the specific circumstances of any termination:
c. Basic Severance Benefit. If the Company, or any related entity or
successor entity terminates the Employee's employment with the
Company for any reason, without "Cause", the Employee shall be
entitled to a Basic Severance Benefit equal to payment of the
Employee's Base Salary for a period of 12 months.
d. Change in Control Severance Benefit. If the Company, or any related
entity or successor entity terminates the Employee's employment in
anticipation of a reorganization or a "Change in Control", or if the
Company, or any related entity or any successor entity terminates
the Employee's employment following a Change in Control for any
other reasons without "Cause", or if the Employee's employment is
"constructively terminated" as defined in Section 8, the Employee
shall receive a payment equal to the Employee's Base Salary for a
period of 24 months.
All severance benefits shall be paid in accordance with the Company's
normal payroll practices or in a single lump sum payment, within the
discretion of the Company. However, the severance benefit shall not be
paid until after 8 days after receipt of an executed copy of a General
Release by the Company as provided in Section 3 and the return of all
property to the Company, as provided in Section 10. Severance benefits
shall also be reduced to the extent of any advance payments, for any
excess expense reimbursements, and for any amounts owed to the Company by
the Employee (other than normal personal residence, home equity and
similar loans).
In the event of the death of the Employee after the commencement of
entitlement to any severance benefit payable under Section 4, all benefits
shall be paid in a lump sum to the Employee's spouse, or if no spouse
exists, to the Employee's estate.
Notwithstanding any interpretation to the contrary, in no event shall the
Employee be
35
entitled to both the Basic Severance Benefit and the Change in Control
Severance Benefit.
31. Benefits. Upon the occurrence of any termination of employment by the
Company, or any related entity or successor entity without "Cause", or
upon the occurrence of a "constructive termination" in accordance with
Section 8, the Employee shall be entitled to the following general
benefits.
j. All salary and wages through the Termination Date shall be paid in
accordance with the Company's normal payroll procedures.
k. All accrued vacation pay shall be included in the Employee's final
paycheck.
l. The Employee shall be entitled to elect to receive continuation
health coverage under the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA") after his Termination Date, which is the date
of the "qualifying event" under COBRA. The Company shall pay the
full cost of any COBRA coverage elected by the Employee, or any
member of the Employee's immediate family for a period of up to 18
months.
m. All medical, group-term life insurance, long-term disability,
short-term disability, and other welfare benefits shall be
terminated in accordance with the provisions of all plans. The
Employee may be entitled to individual conversion privileges under
the various policies. The Company shall provide such information to
the Employee regarding all individual conversion rights.
n. The Employee shall be entitled to a distribution of all benefits
under the Company retirement programs, including the Vista Pension
and Section 401(k) Plans, in accordance with the provisions of all
Plan documents. All severance benefits paid in the Plan Year in
which the Termination Date occurs (but not any subsequent Plan
Years) shall be treated as Compensation for purposes of Employee
Salary Reduction Contributions to the Section 401(k) Plan, if
permitted in accordance with the provisions of the Section 401(k)
Plan, unless the Employee directs otherwise. For purposes of all
other Company Contributions, all severance benefits shall be
considered as Compensation to the extent required under the Section
401(k) Plan.
o. The Employee shall be entitled to exercise any vested Stock Options,
in accordance with the provisions of the 1998 Stock Compensation
Plan, and any individual Option Agreements.
p. The Employee shall become vested in any unvested Stock Grants under
the XXX Plan.
q. Any executive benefits shall terminate on the Termination Date.
36
r. The Employee shall be entitled to state unemployment benefits, in
accordance with the rules for the State of New Jersey.
Notwithstanding any provision to the contrary, except as provided in this
Agreement, the payment of any severance benefits shall not be treated as
extending any individual's employment for any employee benefit or
employment purposes.
32. Voluntary Termination, Retirement, Death and Disability. The Employee
shall not be entitled to any severance benefits in the event of any
voluntary termination of employment either before, or after, any Change in
Control or other corporate events, unless a "constructive termination"
shall occur, as defined in Section 8. Furthermore, notwithstanding any
provisions to the contrary, no severance benefits shall be payable in the
event the Employee becomes disabled, dies, or otherwise retires in
accordance with the normal policies of the Company.
33. Discharge for Cause. The Company, or any related entity or successor
entity may immediately terminate this Agreement and the Employee's
employment at any time for "Cause". Upon termination of this Agreement for
Cause, the Company shall have no further obligations to the Employee other
than to pay for services performed and reimbursement for expenses payable
as of the date of such termination, and to provide any benefits as legally
required under Section 4. However, the Employee shall have no right to the
payment of any Basic Severance or Change in Control Severance Benefits in
the event of a termination for "Cause".
34. Change in Control.
d. Upon the occurrence of a "Change in Control" of the Company,
including any affiliated or subsidiary companies, followed by the
involuntary termination of the Employee's employment within a period
of 1 year after such Change in Control, other than for "Cause",
retirement, death or disability, the Employee shall be entitled to
receive all severance benefits identified in Sections 4(b) and 5 of
this Agreement, and any other benefits to which the Employee is
entitled under any other Company programs. Upon the occurrence of a
Change in Control and a "Constructive Termination" of the Employee,
the Employee shall also have the right to voluntarily terminate the
Employee's employment at any time for a period of up to 1 year after
such Change in Control, and to receive the severance benefits
identified in Section 4(b) and 5. For purposes of this Agreement, a
"Constructive Termination" shall be deemed to occur as a result of
any reduction in the Employee's Base Salary determined as of the
date of the Change in Control; or the relocation of the Employee's
principal place of employment by more than 70 miles from its
location immediately prior to the Change in Control. Upon the
occurrence of any of these events, the Employee shall provide the
Company with not less than 14 days prior written notice of
resignation given within a reasonable
37
period of time not to exceed 3 months after the occurrence of the last
event giving rise to said Constructive Termination. If the Company in good
faith disputes that the Employee is entitled to terminate the Employee's
employment due to a Constructive Termination, it shall so inform the
Employee in writing within 14 days of the written notice provided by the
Employee. If disputed by the Company, the parties shall promptly proceed
to arbitration in accordance with Section 21 of this Agreement. Pending
resolution of the dispute by arbitration, the Company shall continue to
pay the Employee's Base Salary and benefits. If it is ultimately
determined that the Employee did not have grounds for voluntarily
terminating the Employee's employment, the Employee shall return to the
Company, without interest, all cash compensation received by the Employee
subsequent to the day the Employee's employment was terminated.
e. Notwithstanding any provision to the contrary, in the event that:
i. The aggregate payments of benefits to be made or afforded to
the Employee under this Agreement (the "Termination Benefits")
would be deemed to include an "excess parachute payment" under
Section 280G of the Code or any successor thereto; and
ii. If such Termination Benefits were reduced to an amount (the
"Non-Triggering Amount"), the value of which is $1 less than
an amount equal to the total amount of any payments
permissible under Section 280G of the Code or any successor
thereto.
then the Termination Benefits to be paid to the Employee shall be so
reduced so as to be a Non-Triggering Amount. The allocation of the
reduction required hereby among the Termination Benefits provided by
the preceding paragraphs of this Section 8 shall be determined by
the Employee, with the consent of the Company.
f. Notwithstanding the foregoing provisions, if after the application
of Section 8(b) above, it is determined that the Employee received
an excess parachute payment despite the reduction in the Employee's
Termination Benefits, the excess of such Termination Benefits paid
to the Employee of 2.99 times the Employee's "base amount", as
defined in Section 280G of the Code, shall be treated as a loan to
the Employee and the Employee shall be required to repay such amount
to the Company, or the successor of the Company, within 5 years of
the date of such determination, with interest at the prime rate, as
set forth from time to time in the Wall Street Journal.
35. Trade Secrets, Confidential and/or Proprietary Information. The Employee
shall regard and preserve as confidential: (i) all trade secrets and/or
other proprietary and/or confidential information belonging to the
Company; and (ii) all trade secrets and/or other proprietary and/or
confidential information belonging to a third party which have been
confidentially disclosed to the Company, which trade secrets and/or other
proprietary
38
and/or confidential information described in (i) and (ii) above
(collectively, "Confidential Information") have been or may be developed
or obtained by or disclosed to the Employee by reason of the Employee's
relationship with the Company. The Employee shall not, without written
authority from the Company to do so, use for the Employee's own benefit or
purposes, or the benefit or purpose of any person or entity other than the
Company, nor disclose to others, either during the term of this Agreement
or thereafter, except as required in the course of performance of services
under this Agreement, any Confidential Information. This provision shall
not apply to the Employee's general expertise and know-how, nor to
Confidential Information that has been voluntarily disclosed to the public
by the Company, or otherwise entered the public domain through lawful
means. Confidential information shall include, but not be limited to, all
nonpublic information relating to the Company's (i) business, research,
development and marketing plans, strategies and forecasts; (ii) business;
(iii) products (whether existing, in development, or being contemplated);
(iv) customers' identities, usages, and requirements; (v) reports; (vi)
formulas; (vii) specifications; (viii) designs, software and other
technology; and (ix) terms of contracts.
36. Return of Documents. Upon the termination of the Employee's employment,
the Employee shall return all media on which any Confidential Information
may be recorded or located, including, without limitation, documents,
program source codes, samples, models, blueprints, photocopies,
photographs, drawings, descriptions, reproductions, cards, tapes, discs
and other storage facilities (collectively "Documentation") made by the
Employee or that come into the Employee's possession by reason of the
Employee's relationship hereunder with the Company are the property of the
Company and shall be returned to the Company. The Employee shall not
deliver, reproduce, or in any way allow any Documentation to be delivered
or used by any third party without the written direction or consent of a
duly authorized representative of the Company.
37. Covenant Not to Compete. The Employee agrees that during the Employee's
association with the Company and for 1 year after the Employee's
Termination Date, the Employee shall not, directly or indirectly, through
any other person, firm, corporation or other entity, compete with the
Company, anywhere within a radius of 30 miles from 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxx Xxxxxx 00000, in the performance of banking services,
including the operation of branches for any competing entities within the
30 mile radius; or within 10 miles of any branches of the Company or any
related entity prior to any Change in Control. The Company and the
Employee agree that the Company's business is regional in scope and is
highly competitive. The Employee, therefore acknowledges that the scope of
this Non-Solicitation is reasonable, and applies in the context of any
voluntary or involuntary termination of employment. In the event that any
aspect of this covenant is deemed to be unreasonable by a court, the
Employee shall submit to the reduction of either the time or territory to
such an area or period as the court shall deem reasonable. In the event
the Employee violates this covenant, then the time limitation shall be
extended for a period of time equal to the pendency of such proceedings,
including appeals.
39
38. No Solicitation of Employees. During the course of employment with the
Company, the Employee shall come into contact and become familiar with the
Company's employees, their knowledge, skills, abilities, salaries,
commissions, draws, benefits, and other matters with respect to such
employees, all of which information is not generally known to the public,
but has been developed, acquired or compiled by the Company at its great
effort and expense. Any solicitation, luring away or hiring of such
employees of the Company shall be highly detrimental to the business of
the Company and may cause serious loss of business and great and
irreparable harm. Consequently, the Employee covenants and agrees that
during the course of employment with the Company and for a period of 1
year after the Employee's Termination Date, whether voluntary or
involuntary, the Employee shall not, directly or indirectly, whether on
behalf of the Employee or others, solicit, lure or hire away any employees
of the Company or assist or aid in any such activity.
39. Waivers. A waiver by either party of any term or condition of this
Agreement in any instance shall not be deemed or construed to be a waiver
of such term or condition for the future, or of any subsequent breach
thereof. All rights, remedies, undertakings or obligations contained in
this Agreement shall be cumulative and none of them shall be in limitation
of any other right, remedy, undertaking or obligation of either party.
40. Severability. If any one or more provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
41. Injunction Relief. Damages may be an inadequate remedy in the event of an
intended, threatened or actual breach by the Employee of any of the
provisions of this Agreement. Any breach by the Employee may cause the
Company great and irreparable injury and damage. To the extent that such
injury and damage can be demonstrated to a court of competent
jurisdiction, the Company shall be entitled, without waiving any
additional rights or remedies otherwise available to the Company at law,
or in equity or by statute, to injunctive and other equitable relief in
the event of an intended, threatened, or actual breach by the Employee of
any said covenants.
42. Liability Coverage. The Company, and any related entity or successor
entities agrees to indemnify the Employee in accordance with the terms of
the Vista Bylaws. The Company also agrees to continue to provide any
existing officers and directors insurance and/or liability policies
covering the Employee through any Termination Date, and shall use its best
efforts to continue to maintain the policies in effect at the time of
termination or comparable policies covering the Employee for the
Employee's period of employment with the Company, and for a period of 3
years after the date of any termination. In no event shall the Employee
receive any lesser officers and directors protection, than is provided to
the current active Board of Directors.
40
43. Execution of Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
44. Entire Agreement. This Agreement contains the entire agreement between the
Employee and the Company with respect to the transactions contemplated
herein, and supersedes all previous written and oral negotiations,
commitments, and understandings. Its terms shall not be altered or
otherwise amended except pursuant to an instrument in writing signed by
each of the parties hereto and making specific reference to this
Agreement.
45. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Employee, his or her heirs, executors, administrators, and
legal representations, and the Company, it successors and assigns.
46. Amendment. This Agreement may not be altered, changed, amended or
terminated except by written agreement signed by the Employee and the
Company.
47. Arbitration. Any controversy or claim arising out of or relating to this
Agreement shall be settled by arbitration in accordance with the rules of
the American Arbitration Association. The arbitration award shall be final
and binding and judgement upon the award rendered in such arbitration may
be entered in any court having jurisdiction thereof.
48. Right to Withhold. The Company shall have the right to deduct from
payments due to the Employee under this Agreement, any and all Federal,
state or local taxes, if any, required by law to be withheld with respect
to such payments.
49. Written Notices. Any notice, request or other document to be given
hereunder by the Company to the Employee or by the Employee to the Company
shall be in writing and delivered personally or sent by registered or
certified mail, postage prepaid and addressed as follows:
41
If to the Company:
Vista Bancorp, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
If to the Employee:
Xxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxxxx 00000
50. Non-Defamation. During the course of the Employee's employment by the
Company, or any related entity or successor entities, or at any time
thereafter, the Employee shall not, directly or indirectly, in public or
private, deprecate, impugn or otherwise make any remarks that would tend
to or be construed to tend to defame the Company, or any related entity or
successor entities, or their reputations, nor shall the Employee assist
any other person, firm or company in so doing. The Company also agrees
that it will not, directly or indirectly, in public or private, deprecate,
impugn or otherwise make any remarks that would tend to or be construed to
tend to defame the Employee or the Employee's reputation, nor will the
Company assist any other person, firm or entities in engaging in such
activities.
51. References. After the termination of the Employee's employment with the
Company, or any related entity or successor entities, reference inquiries
from prospective employers shall be handled by only verifying the
Employee's dates of employment, last position held, and levels of
Compensation.
52. New Jersey Law. The Employee and the Company agree that this Agreement and
any interpretation thereof shall be governed by the laws of the State of
New Jersey.
53. Headings. The headings contained in this Agreement are for reference only.
In the event of a conflict between a heading and the context of any
Section, the context of the Section shall control.
WITNESS XXXXX X. XXXXXXX
------------------------------- ------------------------------------
WITNESS VISTA BANCORP, INC.
------------------------------- ------------------------------------
42
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (the "Agreement") made as of the 21st day of
July, 1999 (the "Commencement Date") between Vista Bancorp, Inc., a corporation
duly organized under the laws of the State of New Jersey, with offices at 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx 00000 ("Vista" or the Company"), and
Xxxx X. Xxxxxxx of 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx 00000 (the
"Employee").
WHEREAS, the Employee has been a loyal and long-term employee of Vista or
a related entity for many years; and
WHEREAS, Vista wishes to provide the Employee with the comfort of knowing
that if the Employee loses his or her position with Vista, or any related
entities, as a result of any involuntary termination or upon a "change in
control", the Employee will be entitled to receive a severance benefit; and
WHEREAS, the Employee acknowledges that the Company does not maintain any
severance programs as defined under the Employee Retirement Income Security Act
of 1974 ("ERISA"), and that, prior to the Commencement Date, the Employee is not
entitled to any severance benefits upon a termination of employment.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following words and
phrases shall be defined as follows:
k. "Base Salary" shall mean the base salary which is payable on a
regular basis to the Employee, excluding bonuses and taxable fringe
benefits.
l. "Cause" shall include, but not be limited to, any false statement
that was intentionally or negligently made, contained in any
corporate records; the commission by the Employee of any crime or
fraud against the Company or its property, or any crime involving
moral turpitude or reasonably likely to bring discredit upon the
Company; and any violation of the Company's operating policies.
m. "Change in Control" shall mean: (i) the acquisition of ownership of
stock of the Company, by any person (including, without limitation,
a corporation, trust, partnership, joint venture, limited liability
company (a "Person") or by any group of Persons), whether directly,
indirectly, beneficially or of record, which acquisition, together
with stock held by such person or group, represents more than 50% of
the total voting power of all outstanding stock of the Company
(provided that no Change in Control shall occur under this
subparagraph (i) if the
43
Person acquiring any additional stock already possessed more than
50% of the total fair market voting power of the stock of the
Company); (ii) any merger or consolidation of the Company which the
stockholders of the Company before such merger or consolidation do
not, as a result of the merger or consolidation, own at least 50% of
the merger or consolidation; or (iii) any nomination and election of
50% or more of all members of the Board of Directors of the Company
that occurs at any 3 consecutive meetings of the shareholders, whose
election is without the recommendation of the Board. "Change in
Control" shall not include the acquisition of the Company's stock by
any Company employee benefit plans or any actions by the members of
the Board of Directors, when acting as the Board of Directors.
n. "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
o. "Termination Date" shall mean the last day the Employee performs any
services for Vista, or any related entity or successor entity, and
is paid wages as an employee, exclusive of vacation and severance
payments, and excluding any leave of absence periods.
54. Term. The term of the Agreement shall commence on the Commencement Date,
and shall continue on an uninterrupted basis until terminated with the
mutual consent of the Employee and Vista, or any related entity or
successor entity, or upon the voluntary termination of the Employee's
employment with Vista or any successor entity. Upon the Employee's
Termination Date, no additional services shall be required by the Employee
(unless provided otherwise under any consulting agreement), and any
payments due for the performance of any services, and reimbursement for
any expenses, shall be made within a period of 30 days from the
Termination Date.
55. Condition for Severance Benefits. In order to be entitled to any severance
benefits, the Employee agrees to execute a General Release that shall
fully release and forever discharge the company and the shareholders,
officers, employees and directors of the Company and any and all related
companies, from all claims or demands the Employee may have based on
employment with the Company. These claims shall include, but are not
limited to, claims arising under the Constitution of the United Sates, a
release of any rights or claims the Employee may have under the Age
Discrimination in Employment Act of 1967; Title VII of the Civil Right Act
of 1964; the Civil Rights Act of 1966; the Equal Pay Act; or any other
federal, state or local laws or regulations prohibiting employment
discrimination; the Employee Retirement Income Security Act of 1974;
Executive Orders 11246 and 11141; the Constitution of the State of New
Jersey or any other states in which the Employee resides or works; any New
Jersey or other state laws against discrimination; any claims of breach of
public policy of the State of New Jersey or other state, negligence,
breach of contract, wrongful discharge, constructive discharge, breach of
an implied covenant of good faith and fair dealings; any express or
implied
44
contracts with the Company or any related companies; any federal or state
common law and any federal, state or local statutes, ordinances and
regulations.
The General Release shall be in a format prepared by the Company, which
shall be consistent with the above provisions and shall comply with the
Older Workers Benefit Protection Act of 1990 ("OWBPA"), including a 21 day
period to review the General Release, and an 7 day revocation period (or
any other periods required under any future laws). Any severance payments
shall be the Employee's exclusive right and remedy against the Company.
56. Severance Benefits. The Employee's employment may be terminated by the
Employee or by the Company or any related entity or successor entity
without "Cause", notice or liability at any time. Upon the occurrence of
any termination of employment, the following severance benefits shall be
provided, depending upon the specific circumstances of any termination:
e. Basic Severance Benefit. If the Company, or any related entity or
successor entity terminates the Employee's employment with the
Company for any reason, without "Cause", the Employee shall be
entitled to a Basic Severance Benefit equal to payment of the
Employee's Base Salary for a period of 12 months.
f. Change in Control Severance Benefit. If the Company, or any related
entity or successor entity terminates the Employee's employment in
anticipation of a reorganization or a "Change in Control", or if the
Company, or any related entity or any successor entity terminates
the Employee's employment following a Change in Control for any
other reasons without "Cause", or if the Employee's employment is
"constructively terminated" as defined in Section 8, the Employee
shall receive a payment equal to the Employee's Base Salary for a
period of 24 months.
All severance benefits shall be paid in accordance with the Company's
normal payroll practices or in a single lump sum payment, within the
discretion of the Company. However, the severance benefit shall not be
paid until after 8 days after receipt of an executed copy of a General
Release by the Company as provided in Section 3 and the return of all
property to the Company, as provided in Section 10. Severance benefits
shall also be reduced to the extent of any advance payments, for any
excess expense reimbursements, and for any amounts owed to the Company by
the Employee (other than normal personal residence, home equity and
similar loans).
In the event of the death of the Employee after the commencement of
entitlement to any severance benefit payable under Section 4, all benefits
shall be paid in a lump sum to the Employee's spouse, or if no spouse
exists, to the Employee's estate.
Notwithstanding any interpretation to the contrary, in no event shall the
Employee be entitled to both the Basic Severance Benefit and the Change in
Control Severance
45
Benefit.
57. Benefits. Upon the occurrence of any termination of employment by the
Company, or any related entity or successor entity without "Cause", or
upon the occurrence of a "constructive termination" in accordance with
Section 8, the Employee shall be entitled to the following general
benefits.
s. All salary and wages through the Termination Date shall be paid in
accordance with the Company's normal payroll procedures.
t. All accrued vacation pay shall be included in the Employee's final
paycheck.
u. The Employee shall be entitled to elect to receive continuation
health coverage under the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA") after his Termination Date, which is the date
of the "qualifying event" under COBRA. The Company shall pay the
full cost of any COBRA coverage elected by the Employee, or any
member of the Employee's immediate family for a period of up to 18
months.
v. All medical, group-term life insurance, long-term disability,
short-term disability, and other welfare benefits shall be
terminated in accordance with the provisions of all plans. The
Employee may be entitled to individual conversion privileges under
the various policies. The Company shall provide such information to
the Employee regarding all individual conversion rights.
w. The Employee shall be entitled to a distribution of all benefits
under the Company retirement programs, including the Vista Pension
and Section 401(k) Plans, in accordance with the provisions of all
Plan documents. All severance benefits paid in the Plan Year in
which the Termination Date occurs (but not any subsequent Plan
Years) shall be treated as Compensation for purposes of Employee
Salary Reduction Contributions to the Section 401(k) Plan, if
permitted in accordance with the provisions of the Section 401(k)
Plan, unless the Employee directs otherwise. For purposes of all
other Company Contributions, all severance benefits shall be
considered as Compensation to the extent required under the Section
401(k) Plan.
x. The Employee shall be entitled to exercise any vested Stock Options,
in accordance with the provisions of the 1998 Stock Compensation
Plan, and any individual Option Agreements.
y. The Employee shall become vested in any unvested Stock Grants under
the XXX Plan.
z. Any executive benefits shall terminate on the Termination Date.
aa. The Employee shall be entitled to state unemployment benefits, in
accordance
46
with the rules for the State of New Jersey.
Notwithstanding any provision to the contrary, except as provided in this
Agreement, the payment of any severance benefits shall not be treated as
extending any individual's employment for any employee benefit or
employment purposes.
58. Voluntary Termination, Retirement, Death and Disability. The Employee
shall not be entitled to any severance benefits in the event of any
voluntary termination of employment either before, or after, any Change in
Control or other corporate events, unless a "constructive termination"
shall occur, as defined in Section 8. Furthermore, notwithstanding any
provisions to the contrary, no severance benefits shall be payable in the
event the Employee becomes disabled, dies, or otherwise retires in
accordance with the normal policies of the Company.
59. Discharge for Cause. The Company, or any related entity or successor
entity may immediately terminate this Agreement and the Employee's
employment at any time for "Cause". Upon termination of this Agreement for
Cause, the Company shall have no further obligations to the Employee other
than to pay for services performed and reimbursement for expenses payable
as of the date of such termination, and to provide any benefits as legally
required under Section 4. However, the Employee shall have no right to the
payment of any Basic Severance or Change in Control Severance Benefits in
the event of a termination for "Cause".
60. Change in Control.
g. Upon the occurrence of a "Change in Control" of the Company,
including any affiliated or subsidiary companies, followed by the
involuntary termination of the Employee's employment within a period
of 1 year after such Change in Control, other than for "Cause",
retirement, death or disability, the Employee shall be entitled to
receive all severance benefits identified in Sections 4(b) and 5 of
this Agreement, and any other benefits to which the Employee is
entitled under any other Company programs. Upon the occurrence of a
Change in Control and a "Constructive Termination" of the Employee,
the Employee shall also have the right to voluntarily terminate the
Employee's employment at any time for a period of up to 1 year after
such Change in Control, and to receive the severance benefits
identified in Section 4(b) and 5. For purposes of this Agreement, a
"Constructive Termination" shall be deemed to occur as a result of
any reduction in the Employee's Base Salary determined as of the
date of the Change in Control; or the relocation of the Employee's
principal place of employment by more than 70 miles from its
location immediately prior to the Change in Control. Upon the
occurrence of any of these events, the Employee shall provide the
Company with not less than 14 days prior written notice of
resignation given within a reasonable period of time not to exceed 3
months after the occurrence of the last event giving rise to said
Constructive Termination. If the Company in good faith disputes that
the Employee is entitled to terminate the Employee's employment due
to a
47
Constructive Termination, it shall so inform the Employee in writing
within 14 days of the written notice provided by the Employee. If
disputed by the Company, the parties shall promptly proceed to
arbitration in accordance with Section 21 of this Agreement. Pending
resolution of the dispute by arbitration, the Company shall continue
to pay the Employee's Base Salary and benefits. If it is ultimately
determined that the Employee did not have grounds for voluntarily
terminating the Employee's employment, the Employee shall return to
the Company, without interest, all cash compensation received by the
Employee subsequent to the day the Employee's employment was
terminated.
h. Notwithstanding any provision to the contrary, in the event that:
i. The aggregate payments of benefits to be made or afforded to
the Employee under this Agreement (the "Termination Benefits")
would be deemed to include an "excess parachute payment" under
Section 280G of the Code or any successor thereto; and
ii. If such Termination Benefits were reduced to an amount (the
"Non-Triggering Amount"), the value of which is $1 less than
an amount equal to the total amount of any payments
permissible under Section 280G of the Code or any successor
thereto.
then the Termination Benefits to be paid to the Employee shall be so
reduced so as to be a Non-Triggering Amount. The allocation of the
reduction required hereby among the Termination Benefits provided by
the preceding paragraphs of this Section 8 shall be determined by
the Employee, with the consent of the Company.
i. Notwithstanding the foregoing provisions, if after the application
of Section 8(b) above, it is determined that the Employee received
an excess parachute payment despite the reduction in the Employee's
Termination Benefits, the excess of such Termination Benefits paid
to the Employee of 2.99 times the Employee's "base amount", as
defined in Section 280G of the Code, shall be treated as a loan to
the Employee and the Employee shall be required to repay such amount
to the Company, or the successor of the Company, within 5 years of
the date of such determination, with interest at the prime rate, as
set forth from time to time in the Wall Street Journal.
61. Trade Secrets, Confidential and/or Proprietary Information. The Employee
shall regard and preserve as confidential: (i) all trade secrets and/or
other proprietary and/or confidential information belonging to the
Company; and (ii) all trade secrets and/or other proprietary and/or
confidential information belonging to a third party which have been
confidentially disclosed to the Company, which trade secrets and/or other
proprietary and/or confidential information described in (i) and (ii)
above (collectively, "Confidential Information") have been or may be
developed or obtained by or disclosed to the Employee by reason of the
Employee's relationship with the Company. The Employee
48
shall not, without written authority from the Company to do so, use for
the Employee's own benefit or purposes, or the benefit or purpose of any
person or entity other than the Company, nor disclose to others, either
during the term of this Agreement or thereafter, except as required in the
course of performance of services under this Agreement, any Confidential
Information. This provision shall not apply to the Employee's general
expertise and know-how, nor to Confidential Information that has been
voluntarily disclosed to the public by the Company, or otherwise entered
the public domain through lawful means. Confidential information shall
include, but not be limited to, all nonpublic information relating to the
Company's (i) business, research, development and marketing plans,
strategies and forecasts; (ii) business; (iii) products (whether existing,
in development, or being contemplated); (iv) customers' identities,
usages, and requirements; (v) reports; (vi) formulas; (vii)
specifications; (viii) designs, software and other technology; and (ix)
terms of contracts.
62. Return of Documents. Upon the termination of the Employee's employment,
the Employee shall return all media on which any Confidential Information
may be recorded or located, including, without limitation, documents,
program source codes, samples, models, blueprints, photocopies,
photographs, drawings, descriptions, reproductions, cards, tapes, discs
and other storage facilities (collectively "Documentation") made by the
Employee or that come into the Employee's possession by reason of the
Employee's relationship hereunder with the Company are the property of the
Company and shall be returned to the Company. The Employee shall not
deliver, reproduce, or in any way allow any Documentation to be delivered
or used by any third party without the written direction or consent of a
duly authorized representative of the Company.
63. Covenant Not to Compete. The Employee agrees that during the Employee's
association with the Company and for 1 year after the Employee's
Termination Date, the Employee shall not, directly or indirectly, through
any other person, firm, corporation or other entity, compete with the
Company, anywhere within a radius of 30 miles from 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxx Xxxxxx 00000, in the performance of banking services,
including the operation of branches for any competing entities within the
30 mile radius; or within 10 miles of any branches of the Company or any
related entity prior to any Change in Control. The Company and the
Employee agree that the Company's business is regional in scope and is
highly competitive. The Employee, therefore acknowledges that the scope of
this Non-Solicitation is reasonable, and applies in the context of any
voluntary or involuntary termination of employment. In the event that any
aspect of this covenant is deemed to be unreasonable by a court, the
Employee shall submit to the reduction of either the time or territory to
such an area or period as the court shall deem reasonable. In the event
the Employee violates this covenant, then the time limitation shall be
extended for a period of time equal to the pendency of such proceedings,
including appeals.
64. No Solicitation of Employees. During the course of employment with the
Company, the Employee shall come into contact and become familiar with the
Company's employees, their knowledge, skills, abilities, salaries,
commissions, draws, benefits, and
49
other matters with respect to such employees, all of which information is
not generally known to the public, but has been developed, acquired or
compiled by the Company at its great effort and expense. Any solicitation,
luring away or hiring of such employees of the Company shall be highly
detrimental to the business of the Company and may cause serious loss of
business and great and irreparable harm. Consequently, the Employee
covenants and agrees that during the course of employment with the Company
and for a period of 1 year after the Employee's Termination Date, whether
voluntary or involuntary, the Employee shall not, directly or indirectly,
whether on behalf of the Employee or others, solicit, lure or hire away
any employees of the Company or assist or aid in any such activity.
65. Waivers. A waiver by either party of any term or condition of this
Agreement in any instance shall not be deemed or construed to be a waiver
of such term or condition for the future, or of any subsequent breach
thereof. All rights, remedies, undertakings or obligations contained in
this Agreement shall be cumulative and none of them shall be in limitation
of any other right, remedy, undertaking or obligation of either party.
66. Severability. If any one or more provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
67. Injunction Relief. Damages may be an inadequate remedy in the event of an
intended, threatened or actual breach by the Employee of any of the
provisions of this Agreement. Any breach by the Employee may cause the
Company great and irreparable injury and damage. To the extent that such
injury and damage can be demonstrated to a court of competent
jurisdiction, the Company shall be entitled, without waiving any
additional rights or remedies otherwise available to the Company at law,
or in equity or by statute, to injunctive and other equitable relief in
the event of an intended, threatened, or actual breach by the Employee of
any said covenants.
68. Liability Coverage. The Company, and any related entity or successor
entities agrees to indemnify the Employee in accordance with the terms of
the Vista Bylaws. The Company also agrees to continue to provide any
existing officers and directors insurance and/or liability policies
covering the Employee through any Termination Date, and shall use its best
efforts to continue to maintain the policies in effect at the time of
termination or comparable policies covering the Employee for the
Employee's period of employment with the Company, and for a period of 3
years after the date of any termination. In no event shall the Employee
receive any lesser officers and directors protection, than is provided to
the current active Board of Directors.
69. Execution of Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
50
70. Entire Agreement. This Agreement contains the entire agreement between the
Employee and the Company with respect to the transactions contemplated
herein, and supersedes all previous written and oral negotiations,
commitments, and understandings. Its terms shall not be altered or
otherwise amended except pursuant to an instrument in writing signed by
each of the parties hereto and making specific reference to this
Agreement.
71. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Employee, his or her heirs, executors, administrators, and
legal representations, and the Company, it successors and assigns.
72. Amendment. This Agreement may not be altered, changed, amended or
terminated except by written agreement signed by the Employee and the
Company.
73. Arbitration. Any controversy or claim arising out of or relating to this
Agreement shall be settled by arbitration in accordance with the rules of
the American Arbitration Association. The arbitration award shall be final
and binding and judgement upon the award rendered in such arbitration may
be entered in any court having jurisdiction thereof.
74. Right to Withhold. The Company shall have the right to deduct from
payments due to the Employee under this Agreement, any and all Federal,
state or local taxes, if any, required by law to be withheld with respect
to such payments.
75. Written Notices. Any notice, request or other document to be given
hereunder by the Company to the Employee or by the Employee to the Company
shall be in writing and delivered personally or sent by registered or
certified mail, postage prepaid and addressed as follows:
51
If to the Company:
Vista Bancorp, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
If to the Employee:
Xxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxxxx 00000
76. Non-Defamation. During the course of the Employee's employment by the
Company, or any related entity or successor entities, or at any time
thereafter, the Employee shall not, directly or indirectly, in public or
private, deprecate, impugn or otherwise make any remarks that would tend
to or be construed to tend to defame the Company, or any related entity or
successor entities, or their reputations, nor shall the Employee assist
any other person, firm or company in so doing. The Company also agrees
that it will not, directly or indirectly, in public or private, deprecate,
impugn or otherwise make any remarks that would tend to or be construed to
tend to defame the Employee or the Employee's reputation, nor will the
Company assist any other person, firm or entities in engaging in such
activities.
77. References. After the termination of the Employee's employment with the
Company, or any related entity or successor entities, reference inquiries
from prospective employers shall be handled by only verifying the
Employee's dates of employment, last position held, and levels of
Compensation.
78. New Jersey Law. The Employee and the Company agree that this Agreement and
any interpretation thereof shall be governed by the laws of the State of
New Jersey.
79. Headings. The headings contained in this Agreement are for reference only.
In the event of a conflict between a heading and the context of any
Section, the context of the Section shall control.
WITNESS XXXX X. XXXXXXX
------------------------------- ------------------------------------
WITNESS VISTA BANCORP, INC.
------------------------------- ------------------------------------
52
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (the "Agreement") made as of the 28th day of
July, 1999 (the "Commencement Date") between Vista Bancorp, Inc., a corporation
duly organized under the laws of the State of New Jersey, with offices at 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx 00000 ("Vista" or the Company"), and
Xxxxxxx X. Xxxxx of 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx 00000 (the
"Employee").
WHEREAS, the Employee has been a loyal and long-term employee of Vista or
a related entity for many years; and
WHEREAS, Vista wishes to provide the Employee with the comfort of knowing
that if the Employee loses his or her position with Vista, or any related
entities, as a result of any involuntary termination or upon a "change in
control", the Employee will be entitled to receive a severance benefit; and
WHEREAS, the Employee acknowledges that the Company does not maintain any
severance programs as defined under the Employee Retirement Income Security Act
of 1974 ("ERISA"), and that, prior to the Commencement Date, the Employee is not
entitled to any severance benefits upon a termination of employment.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following words and
phrases shall be defined as follows:
p. "Base Salary" shall mean the base salary which is payable on a
regular basis to the Employee, excluding bonuses and taxable fringe
benefits.
q. "Cause" shall include, but not be limited to, any false statement
that was intentionally or negligently made, contained in any
corporate records; the commission by the Employee of any crime or
fraud against the Company or its property, or any crime involving
moral turpitude or reasonably likely to bring discredit upon the
Company; and any violation of the Company's operating policies.
r. "Change in Control" shall mean: (i) the acquisition of ownership of
stock of the Company, by any person (including, without limitation,
a corporation, trust, partnership, joint venture, limited liability
company (a "Person") or by any group of Persons), whether directly,
indirectly, beneficially or of record, which acquisition, together
with stock held by such person or group, represents more than 50% of
the total voting power of all outstanding stock of the Company
(provided that no Change in Control shall occur under this
subparagraph (i) if the Person acquiring any additional stock
already possessed more than 50% of the
53
total fair market voting power of the stock of the Company); (ii)
any merger or consolidation of the Company which the stockholders of
the Company before such merger or consolidation do not, as a result
of the merger or consolidation, own at least 50% of the merger or
consolidation; or (iii) any nomination and election of 50% or more
of all members of the Board of Directors of the Company that occurs
at any 3 consecutive meetings of the shareholders, whose election is
without the recommendation of the Board. "Change in Control" shall
not include the acquisition of the Company's stock by any Company
employee benefit plans or any actions by the members of the Board of
Directors, when acting as the Board of Directors.
s. "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
t. "Termination Date" shall mean the last day the Employee performs any
services for Vista, or any related entity or successor entity, and
is paid wages as an employee, exclusive of vacation and severance
payments, and excluding any leave of absence periods.
80. Term. The term of the Agreement shall commence on the Commencement Date,
and shall continue on an uninterrupted basis until terminated with the
mutual consent of the Employee and Vista, or any related entity or
successor entity, or upon the voluntary termination of the Employee's
employment with Vista or any successor entity. Upon the Employee's
Termination Date, no additional services shall be required by the Employee
(unless provided otherwise under any consulting agreement), and any
payments due for the performance of any services, and reimbursement for
any expenses, shall be made within a period of 30 days from the
Termination Date.
81. Condition for Severance Benefits. In order to be entitled to any severance
benefits, the Employee agrees to execute a General Release that shall
fully release and forever discharge the company and the shareholders,
officers, employees and directors of the Company and any and all related
companies, from all claims or demands the Employee may have based on
employment with the Company. These claims shall include, but are not
limited to, claims arising under the Constitution of the United Sates, a
release of any rights or claims the Employee may have under the Age
Discrimination in Employment Act of 1967; Title VII of the Civil Right Act
of 1964; the Civil Rights Act of 1966; the Equal Pay Act; or any other
federal, state or local laws or regulations prohibiting employment
discrimination; the Employee Retirement Income Security Act of 1974;
Executive Orders 11246 and 11141; the Constitution of the State of New
Jersey or any other states in which the Employee resides or works; any New
Jersey or other state laws against discrimination; any claims of breach of
public policy of the State of New Jersey or other state, negligence,
breach of contract, wrongful discharge, constructive discharge, breach of
an implied covenant of good faith and fair dealings; any express or
implied
54
contracts with the Company or any related companies; any federal or state
common law and any federal, state or local statutes, ordinances and
regulations.
The General Release shall be in a format prepared by the Company, which
shall be consistent with the above provisions and shall comply with the
Older Workers Benefit Protection Act of 1990 ("OWBPA"), including a 21 day
period to review the General Release, and an 7 day revocation period (or
any other periods required under any future laws). Any severance payments
shall be the Employee's exclusive right and remedy against the Company.
82. Severance Benefits. The Employee's employment may be terminated by the
Employee or by the Company or any related entity or successor entity
without "Cause", notice or liability at any time. Upon the occurrence of
any termination of employment, the following severance benefits shall be
provided, depending upon the specific circumstances of any termination:
g. Basic Severance Benefit. If the Company, or any related entity or
successor entity terminates the Employee's employment with the
Company for any reason, without "Cause", the Employee shall be
entitled to a Basic Severance Benefit equal to payment of the
Employee's Base Salary for a period of 12 months.
h. Change in Control Severance Benefit. If the Company, or any related
entity or successor entity terminates the Employee's employment in
anticipation of a reorganization or a "Change in Control", or if the
Company, or any related entity or any successor entity terminates
the Employee's employment following a Change in Control for any
other reasons without "Cause", or if the Employee's employment is
"constructively terminated" as defined in Section 8, the Employee
shall receive a payment equal to the Employee's Base Salary for a
period of 24 months.
All severance benefits shall be paid in accordance with the Company's
normal payroll practices or in a single lump sum payment, within the
discretion of the Company. However, the severance benefit shall not be
paid until after 8 days after receipt of an executed copy of a General
Release by the Company as provided in Section 3 and the return of all
property to the Company, as provided in Section 10. Severance benefits
shall also be reduced to the extent of any advance payments, for any
excess expense reimbursements, and for any amounts owed to the Company by
the Employee (other than normal personal residence, home equity and
similar loans).
In the event of the death of the Employee after the commencement of
entitlement to any severance benefit payable under Section 4, all benefits
shall be paid in a lump sum to the Employee's spouse, or if no spouse
exists, to the Employee's estate.
Notwithstanding any interpretation to the contrary, in no event shall the
Employee be
55
entitled to both the Basic Severance Benefit and the Change in Control
Severance Benefit.
83. Benefits. Upon the occurrence of any termination of employment by the
Company, or any related entity or successor entity without "Cause", or
upon the occurrence of a "constructive termination" in accordance with
Section 8, the Employee shall be entitled to the following general
benefits.
bb. All salary and wages through the Termination Date shall be paid in
accordance with the Company's normal payroll procedures.
cc. All accrued vacation pay shall be included in the Employee's final
paycheck.
dd. The Employee shall be entitled to elect to receive continuation
health coverage under the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA") after his Termination Date, which is the date
of the "qualifying event" under COBRA. The Company shall pay the
full cost of any COBRA coverage elected by the Employee, or any
member of the Employee's immediate family for a period of up to 18
months.
ee. All medical, group-term life insurance, long-term disability,
short-term disability, and other welfare benefits shall be
terminated in accordance with the provisions of all plans. The
Employee may be entitled to individual conversion privileges under
the various policies. The Company shall provide such information to
the Employee regarding all individual conversion rights.
ff. The Employee shall be entitled to a distribution of all benefits
under the Company retirement programs, including the Vista Pension
and Section 401(k) Plans, in accordance with the provisions of all
Plan documents. All severance benefits paid in the Plan Year in
which the Termination Date occurs (but not any subsequent Plan
Years) shall be treated as Compensation for purposes of Employee
Salary Reduction Contributions to the Section 401(k) Plan, if
permitted in accordance with the provisions of the Section 401(k)
Plan, unless the Employee directs otherwise. For purposes of all
other Company Contributions, all severance benefits shall be
considered as Compensation to the extent required under the Section
401(k) Plan.
gg. The Employee shall be entitled to exercise any vested Stock Options,
in accordance with the provisions of the 1998 Stock Compensation
Plan, and any individual Option Agreements.
hh. The Employee shall become vested in any unvested Stock Grants under
the XXX Plan.
ii. Any executive benefits shall terminate on the Termination Date.
56
jj. The Employee shall be entitled to state unemployment benefits, in
accordance with the rules for the State of New Jersey.
Notwithstanding any provision to the contrary, except as provided in this
Agreement, the payment of any severance benefits shall not be treated as
extending any individual's employment for any employee benefit or
employment purposes.
84. Voluntary Termination, Retirement, Death and Disability. The Employee
shall not be entitled to any severance benefits in the event of any
voluntary termination of employment either before, or after, any Change in
Control or other corporate events, unless a "constructive termination"
shall occur, as defined in Section 8. Furthermore, notwithstanding any
provisions to the contrary, no severance benefits shall be payable in the
event the Employee becomes disabled, dies, or otherwise retires in
accordance with the normal policies of the Company.
85. Discharge for Cause. The Company, or any related entity or successor
entity may immediately terminate this Agreement and the Employee's
employment at any time for "Cause". Upon termination of this Agreement for
Cause, the Company shall have no further obligations to the Employee other
than to pay for services performed and reimbursement for expenses payable
as of the date of such termination, and to provide any benefits as legally
required under Section 4. However, the Employee shall have no right to the
payment of any Basic Severance or Change in Control Severance Benefits in
the event of a termination for "Cause".
86. Change in Control.
j. Upon the occurrence of a "Change in Control" of the Company,
including any affiliated or subsidiary companies, followed by the
involuntary termination of the Employee's employment within a period
of 1 year after such Change in Control, other than for "Cause",
retirement, death or disability, the Employee shall be entitled to
receive all severance benefits identified in Sections 4(b) and 5 of
this Agreement, and any other benefits to which the Employee is
entitled under any other Company programs. Upon the occurrence of a
Change in Control and a "Constructive Termination" of the Employee,
the Employee shall also have the right to voluntarily terminate the
Employee's employment at any time for a period of up to 1 year after
such Change in Control, and to receive the severance benefits
identified in Section 4(b) and 5. For purposes of this Agreement, a
"Constructive Termination" shall be deemed to occur as a result of
any reduction in the Employee's Base Salary determined as of the
date of the Change in Control; or the relocation of the Employee's
principal place of employment by more than 70 miles from its
location immediately prior to the Change in Control. Upon the
occurrence of any of these events, the Employee shall provide the
Company with not less than 14 days prior written notice of
resignation given within a reasonable
57
period of time not to exceed 3 months after the occurrence of the
last event giving rise to said Constructive Termination. If the
Company in good faith disputes that the Employee is entitled to
terminate the Employee's employment due to a Constructive
Termination, it shall so inform the Employee in writing within 14
days of the written notice provided by the Employee. If disputed by
the Company, the parties shall promptly proceed to arbitration in
accordance with Section 21 of this Agreement. Pending resolution of
the dispute by arbitration, the Company shall continue to pay the
Employee's Base Salary and benefits. If it is ultimately determined
that the Employee did not have grounds for voluntarily terminating
the Employee's employment, the Employee shall return to the Company,
without interest, all cash compensation received by the Employee
subsequent to the day the Employee's employment was terminated.
k. Notwithstanding any provision to the contrary, in the event that:
i. The aggregate payments of benefits to be made or afforded to
the Employee under this Agreement (the "Termination Benefits")
would be deemed to include an "excess parachute payment" under
Section 280G of the Code or any successor thereto; and
ii. If such Termination Benefits were reduced to an amount (the
"Non-Triggering Amount"), the value of which is $1 less than
an amount equal to the total amount of any payments
permissible under Section 280G of the Code or any successor
thereto.
then the Termination Benefits to be paid to the Employee shall be so
reduced so as to be a Non-Triggering Amount. The allocation of the
reduction required hereby among the Termination Benefits provided by
the preceding paragraphs of this Section 8 shall be determined by
the Employee, with the consent of the Company.
l. Notwithstanding the foregoing provisions, if after the application
of Section 8(b) above, it is determined that the Employee received
an excess parachute payment despite the reduction in the Employee's
Termination Benefits, the excess of such Termination Benefits paid
to the Employee of 2.99 times the Employee's "base amount", as
defined in Section 280G of the Code, shall be treated as a loan to
the Employee and the Employee shall be required to repay such amount
to the Company, or the successor of the Company, within 5 years of
the date of such determination, with interest at the prime rate, as
set forth from time to time in the Wall Street Journal.
87. Trade Secrets, Confidential and/or Proprietary Information. The Employee
shall regard and preserve as confidential: (i) all trade secrets and/or
other proprietary and/or confidential information belonging to the
Company; and (ii) all trade secrets and/or other proprietary
58
and/or confidential information belonging to a third party which have been
confidentially disclosed to the Company, which trade secrets and/or other
proprietary and/or confidential information described in (i) and (ii)
above (collectively, "Confidential Information") have been or may be
developed or obtained by or disclosed to the Employee by reason of the
Employee's relationship with the Company. The Employee shall not, without
written authority from the Company to do so, use for the Employee's own
benefit or purposes, or the benefit or purpose of any person or entity
other than the Company, nor disclose to others, either during the term of
this Agreement or thereafter, except as required in the course of
performance of services under this Agreement, any Confidential
Information. This provision shall not apply to the Employee's general
expertise and know-how, nor to Confidential Information that has been
voluntarily disclosed to the public by the Company, or otherwise entered
the public domain through lawful means. Confidential information shall
include, but not be limited to, all nonpublic information relating to the
Company's (i) business, research, development and marketing plans,
strategies and forecasts; (ii) business; (iii) products (whether existing,
in development, or being contemplated); (iv) customers' identities,
usages, and requirements; (v) reports; (vi) formulas; (vii)
specifications; (viii) designs, software and other technology; and (ix)
terms of contracts.
88. Return of Documents. Upon the termination of the Employee's employment,
the Employee shall return all media on which any Confidential Information
may be recorded or located, including, without limitation, documents,
program source codes, samples, models, blueprints, photocopies,
photographs, drawings, descriptions, reproductions, cards, tapes, discs
and other storage facilities (collectively "Documentation") made by the
Employee or that come into the Employee's possession by reason of the
Employee's relationship hereunder with the Company are the property of the
Company and shall be returned to the Company. The Employee shall not
deliver, reproduce, or in any way allow any Documentation to be delivered
or used by any third party without the written direction or consent of a
duly authorized representative of the Company.
89. Covenant Not to Compete. The Employee agrees that during the Employee's
association with the Company and for 1 year after the Employee's
Termination Date, the Employee shall not, directly or indirectly, through
any other person, firm, corporation or other entity, compete with the
Company, anywhere within a radius of 30 miles from 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxx Xxxxxx 00000, in the performance of banking services,
including the operation of branches for any competing entities within the
30 mile radius; or within 10 miles of any branches of the Company or any
related entity prior to any Change in Control. The Company and the
Employee agree that the Company's business is regional in scope and is
highly competitive. The Employee, therefore acknowledges that the scope of
this Non-Solicitation is reasonable, and applies in the context of any
voluntary or involuntary termination of employment. In the event that any
aspect of this covenant is deemed to be unreasonable by a court, the
Employee shall submit to the reduction of either the time or territory to
such an area or period as the court shall deem reasonable. In the event
the Employee violates this covenant, then the time limitation shall be
extended for a period of time equal to the pendency of such proceedings,
including appeals.
59
90. No Solicitation of Employees. During the course of employment with the
Company, the Employee shall come into contact and become familiar with the
Company's employees, their knowledge, skills, abilities, salaries,
commissions, draws, benefits, and other matters with respect to such
employees, all of which information is not generally known to the public,
but has been developed, acquired or compiled by the Company at its great
effort and expense. Any solicitation, luring away or hiring of such
employees of the Company shall be highly detrimental to the business of
the Company and may cause serious loss of business and great and
irreparable harm. Consequently, the Employee covenants and agrees that
during the course of employment with the Company and for a period of 1
year after the Employee's Termination Date, whether voluntary or
involuntary, the Employee shall not, directly or indirectly, whether on
behalf of the Employee or others, solicit, lure or hire away any employees
of the Company or assist or aid in any such activity.
91. Waivers. A waiver by either party of any term or condition of this
Agreement in any instance shall not be deemed or construed to be a waiver
of such term or condition for the future, or of any subsequent breach
thereof. All rights, remedies, undertakings or obligations contained in
this Agreement shall be cumulative and none of them shall be in limitation
of any other right, remedy, undertaking or obligation of either party.
92. Severability. If any one or more provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
93. Injunction Relief. Damages may be an inadequate remedy in the event of an
intended, threatened or actual breach by the Employee of any of the
provisions of this Agreement. Any breach by the Employee may cause the
Company great and irreparable injury and damage. To the extent that such
injury and damage can be demonstrated to a court of competent
jurisdiction, the Company shall be entitled, without waiving any
additional rights or remedies otherwise available to the Company at law,
or in equity or by statute, to injunctive and other equitable relief in
the event of an intended, threatened, or actual breach by the Employee of
any said covenants.
94. Liability Coverage. The Company, and any related entity or successor
entities agrees to indemnify the Employee in accordance with the terms of
the Vista Bylaws. The Company also agrees to continue to provide any
existing officers and directors insurance and/or liability policies
covering the Employee through any Termination Date, and shall use its best
efforts to continue to maintain the policies in effect at the time of
termination or comparable policies covering the Employee for the
Employee's period of employment with the Company, and for a period of 3
years after the date of any termination. In no event shall the Employee
receive any lesser officers and directors protection, than is provided to
the current active Board of Directors.
60
95. Execution of Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
96. Entire Agreement. This Agreement contains the entire agreement between the
Employee and the Company with respect to the transactions contemplated
herein, and supersedes all previous written and oral negotiations,
commitments, and understandings. Its terms shall not be altered or
otherwise amended except pursuant to an instrument in writing signed by
each of the parties hereto and making specific reference to this
Agreement.
97. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Employee, his or her heirs, executors, administrators, and
legal representations, and the Company, it successors and assigns.
98. Amendment. This Agreement may not be altered, changed, amended or
terminated except by written agreement signed by the Employee and the
Company.
99. Arbitration. Any controversy or claim arising out of or relating to this
Agreement shall be settled by arbitration in accordance with the rules of
the American Arbitration Association. The arbitration award shall be final
and binding and judgement upon the award rendered in such arbitration may
be entered in any court having jurisdiction thereof.
100. Right to Withhold. The Company shall have the right to deduct from
payments due to the Employee under this Agreement, any and all Federal,
state or local taxes, if any, required by law to be withheld with respect
to such payments.
101. Written Notices. Any notice, request or other document to be given
hereunder by the Company to the Employee or by the Employee to the Company
shall be in writing and delivered personally or sent by registered or
certified mail, postage prepaid and addressed as follows:
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If to the Company:
Vista Bancorp, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
If to the Employee:
Xxxxxxx X. Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxxxx 00000
102. Non-Defamation. During the course of the Employee's employment by the
Company, or any related entity or successor entities, or at any time
thereafter, the Employee shall not, directly or indirectly, in public or
private, deprecate, impugn or otherwise make any remarks that would tend
to or be construed to tend to defame the Company, or any related entity or
successor entities, or their reputations, nor shall the Employee assist
any other person, firm or company in so doing. The Company also agrees
that it will not, directly or indirectly, in public or private, deprecate,
impugn or otherwise make any remarks that would tend to or be construed to
tend to defame the Employee or the Employee's reputation, nor will the
Company assist any other person, firm or entities in engaging in such
activities.
103. References. After the termination of the Employee's employment with the
Company, or any related entity or successor entities, reference inquiries
from prospective employers shall be handled by only verifying the
Employee's dates of employment, last position held, and levels of
Compensation.
104. New Jersey Law. The Employee and the Company agree that this Agreement and
any interpretation thereof shall be governed by the laws of the State of
New Jersey.
105. Headings. The headings contained in this Agreement are for reference only.
In the event of a conflict between a heading and the context of any
Section, the context of the Section shall control.
WITNESS XXXXXXX X. XXXXX
------------------------------- ------------------------------------
WITNESS VISTA BANCORP, INC.
------------------------------- ------------------------------------
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