FORM OF WAIVER AGREEMENT (RETENTION AGREEMENTS)
Exhibit
10.2
FORM
OF WAIVER
AGREEMENT
(RETENTION
AGREEMENTS)
WAIVER
AGREEMENT (this "Waiver"), made as of March 19, 2009, by and between Unity
Bancorp, Inc., a New Jersey corporation with an address at 00 Xxx Xxxxxxx 00,
Xxxxxxx, XX 00000 (the “Company”), Unity Bank, a New Jersey state commercial
bank with its principal place of business located at 00 Xxx Xxxxxxx 00, Xxxxxxx,
XX 00000 (the “Bank”) and __________, (the "Executive"). The Company
and the Bank shall be referred to herein collectively as the
“Employer”.
WITNESSETH
:
WHEREAS, the Employer and the Executive
have entered into that certain Retention Agreement, made as of March 19, 2007,
(and as may hereafter be further amended, modified, supplemented, extended,
renewed, restated or replaced, the "Retention Agreement"), which governs the
terms and conditions of the Executive’s employment with the
Employer;
WHEREAS, as part of the Emergency
Economic Stabilization Act of 0000 (“XXXX”), xxx Xxxxxx Xxxxxx Treasury (the
“Treasury”) adopted a program known as the Capital Purchase Program (“CPP”)
pursuant to which the Treasury will invest in United States insured depository
institutions;
WHEREAS, the Company received an
investment of $20,649,000 from the Treasury pursuant to the CPP on December 5,
2008.
WHEREAS, the terms of the CPP were
revised by the American Recovery and Reinvestment Act of 2009 (the “ARRA”),
which, among other things, imposed certain limitations upon the compensation of
executive officers of companies which participated in the CPP;
WHEREAS, the Retention Agreement does
not comply with the requirements of the ARRA, in that it provides for certain
severance payments to the Executive; and
WHEREAS,
the Executive is willing to waive such portions of the Retention Agreement which
do not comply with the ARRA subject to the terms and conditions contained
herein.
NOW THEREFORE, in
consideration of the foregoing, and the respective agreements and covenants
contained herein, the parties hereto agree as follows:
1. Waiver
Subject to the terms and conditions
hereof, the Executive hereby agrees to waive all provisions of the Retention
Agreement that would render the Employer in violation of the Section
111 of the EESA, as amended by the ARRA, and the regulations as may be
promulgated thereunder from time to time, including, but not limited
to:
a. Section
(b) of Article 1 of the Retention Agreement with respect to the Executive’s
rights to receive a payment equal to twelve (12) months of the Executive’s then
current Base Salary in the event of the Executive’s Termination Without
Cause;
b. Section
(c) of Article 1 of the Retention Agreement with respect to the Executive’s
right to receive a payment equal to twelve (12) months of the Executive’s then
current Base Salary upon the Executive’s Resignation With Cause;
c. Section
(a & d) of Article 2 of the Retention Agreement with respect to the
Executive’s right to receive a payment equal to the greater of: (i) twenty-four
(24) months of the Executive's Base Salary; or (ii) twenty-four (24) months of
the Executive's then current Base Salary plus any cash bonus received by the
Executive for the Employer's preceding fiscal year, in the event of a Change in
Control or Significant Acquisition;
provided, however, that
the foregoing waiver will be of no
further force or effect, and the Executive will be
entitled to exercise all of his
rights
and remedies under the Employment
Agreement, and applicable law, automatically upon such time as the
Company is no longer prohibited from making the payments described above under
the EESA and regulations thereunder, whether because the Company’s obligation to
the Treasury arising from the Company’s participation in the CPP shall be
satisfied or excused, the EESA shall be further amended to eliminate the
prohibition on severance or otherwise.
2 Further Limitations of
Waiver
This Waiver by the Executive of the
benefits conferred upon him pursuant to the Retention Agreement shall be
construed only to the minimum extent necessary so that the Employer shall be in
compliance with the Section 111 of the EESA, the ARRA and the regulations as may
be promulgated from time to time thereunder (collectively, the “Acts”), and
shall not be construed to grant to the Employer additional benefits beyond what
is minimally required to comply with the Acts.
3 Entire Agreement; Binding
Affect; Employment Agreement to Remain in Effect. This Waiver
constitutes the entire and final agreement among the parties with respect to the
subject matter hereof and there are no agreements, understandings, warranties or
representations among the parties as to such subject matter except as set forth
herein. This Waiver will inure to the benefit and bind the parties
hereto and the respective heirs, administrators, executors, representatives,
successors and permitted assigns of the parties hereto. Except as specifically
provided for hereunder, the Employment Agreement shall remain in full force and
effect, shall not be modified or otherwise revised by this Waiver
Agreement.
4. Defined
Terms. Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Employment
Agreement.
5. Governing
Law. This Waiver is executed and delivered in the State of New
Jersey and it is the desire and intention of the parties that it be in all
respects interpreted according to the laws of the State of New Jersey, without
giving effect to choice of law provisions thereof.
6. Counterparts. This
Waiver may be executed in counterparts, each of which will be deemed an original
document, but all of which will constitute a single document.
IN WITNESS WHEREOF, the
Company, the Bank and the Executive legally bound, have executed this Waiver
Agreement as of the date first noted above.
Unity
Bancorp, Inc.
By: ________________________
Name: Xxxxx X.
Dallas
Title: Chairman
Unity
Bank
By: ________________________
Name: Xxxxx X.
Xxxxxx
Title: President/CEO
____________________________
