Exhibit 10.5
EMPLOYMENT AGREEMENT
AGREEMENT made as of the ____ day of May, 2001, by and
between 1ST COLONIAL NATIONAL BANK ("CNB"), a federally
chartered banking corporation, and XXXXXX X. XXXX (the
"EMPLOYEE").
BACKGROUND
A. CNB desires to employ the EMPLOYEE and the
EMPLOYEE is willing to serve on the terms and conditions herein
provided.
B. In order to effect the foregoing, the parties
hereto desire to enter into an employment agreement on the terms
and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and
the respective covenants and agreements of the parties contained
herein, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Definitions and Special Provisions. Each
capitalized word and term used herein shall have the meaning
ascribed to it in the glossary appended hereto, unless the
context in which such word or term is used otherwise clearly
requires. Such glossary is incorporated herein by reference and
made a part hereof.
2. Employment. CNB hereby agrees to employ the
EMPLOYEE, and the EMPLOYEE hereby agrees to serve CNB, on the
terms and conditions set forth herein.
3. Term of Agreement. The EMPLOYEE's employment
under this Agreement shall commence on May 21, 2001 and, except
as otherwise provided herein, shall continue until May 20, 2003;
provided, however, that commencing on May 21 , 2002 and each
May 21st thereafter, the term of this Agreement shall
automatically be extended for one additional year beyond the
term otherwise established unless, prior to such May 21st date,
CNB or the EMPLOYEE shall have given a Notice of Non-Extension.
4. Position and Duties. The EMPLOYEE shall serve as
the Cashier of CNB and shall report directly to the Acting Chief
Financial Officer. He shall have such responsibilities, duties
and authority as may, from time to time, be generally associated
with such position. Upon receipt by CNB of a notice of non-
objection from the OCC to the EMPLOYEE serving as Senior Vice
President and Chief Financial Officer of the Bank, EMPLOYEE
shall also serve as Senior Vice President and Chief Financial
Officer of CNB. In addition, the EMPLOYEE shall serve in such
capacity, with respect to each Subsidiary or affiliated company,
as the Board of Directors of each such Subsidiary or affiliated
company shall designate from time to time. During the term of
this Agreement, he shall devote substantially all of his working
time and efforts to the business and affairs of CNB, the
Subsidiaries and affiliated companies; provided, however, that
nothing herein shall be construed as precluding him from
devoting a reasonable amount of time to civic, charitable, trade
association, political, and similar activities.
5. Compensation and Related Matters.
(a) Base Compensation. During the period of the
EMPLOYEE's employment hereunder, CNB shall pay to him annual
base compensation at a rate not less than $90,000. The Board(s)
of Directors of CNB shall periodically review the EMPLOYEE's
employment performance, in accordance with policies generally in
effect from time to time, for possible merit or cost-of-living
increases in such base compensation. Except for a reduction
which is proportionate to a company-wide reduction in officer
pay, the annual base compensation paid to the EMPLOYEE in any
period shall not be less than the annual base compensation paid
to him in any prior period. The frequency and manner of payment
of such base compensation shall be in accordance with CNB's
payroll practices from time to time in effect. Nothing herein
shall be construed as precluding the EMPLOYEE from entering into
any salary reduction or deferral plan or arrangement during the
term of this Agreement; provided, however, that his base
compensation shall be determined without regard to any such
salary reduction or deferral for purposes of calculating the
amount of any compensation and benefits to which he or his
surviving spouse may be entitled under Paragraph 6, 7, 10, or 11
following his termination of employment. The amounts set forth
in the first sentence of this subparagraph (a) shall be pro
rated to the extent such period is less than a year.
(b) Incentive Compensation. During the period
of the EMPLOYEE's employment hereunder, he shall be entitled to
participate in all incentive plans, stock option plans, and
similar arrangements maintained by CNB for officers on a basis
and at award levels consistent and commensurate with his
position and duties hereunder.
(c) Employee Benefit Plans and Other Plans or
Arrangements. The EMPLOYEE shall be entitled to participate in
all Employee Benefit Plans of CNB on the same basis as other
non-executive officers of CNB. In addition, he shall be
entitled to participate in and enjoy any other plans and
arrangements which provide for sick leave, vacation, sabbatical,
or personal days, club memberships and dues, education payment
or reimbursement, business-related seminars, and similar fringe
benefits provided to or for the non-executive officers of CNB
from time to time. Notwithstanding the foregoing, EMPLOYEE
shall be entitled to at least four (4) weeks vacation per
calendar year during each year of employment. Such vacation
shall be prorated during the year 2001 based on the date of this
Agreement.
(d) Expenses. During the period of the
EMPLOYEE's employment hereunder, he shall be entitled to receive
prompt reimbursement for all reasonable and customary expenses,
including transportation expenses, incurred by him in performing
services hereunder in accordance with the general policies and
procedures established by CNB.
6. Termination By Reason of Disability.
(a) In General. In the event the EMPLOYEE
becomes unable to perform his duties on a full-time basis by
reason of the occurrence of his Disability and, within 30 days
after a Notice of Termination is given, he shall not have
returned to the full-time performance of such duties, his
employment may be terminated by CNB.
(b) Compensation and Benefits. In the event of
the termination of the EMPLOYEE's employment under
Subparagraph (a) above, the term of this Agreement shall
continue for one year after the Date of Termination, and CNB
shall pay or provide the compensation and benefits set forth
below:
(1) The EMPLOYEE shall be paid an amount
equal to the greater of (i) his highest base compensation
received during one of the two calendar years immediately
preceding the calendar year in which the Date of Termination
occurs, or (ii) his base compensation in effect immediately
prior to the Date of Termination (or prior to any reduction
which entitled him to terminate his employment for Good Reason),
over a period of one year beginning with such Date of
Termination. The frequency and manner of payment of such
amounts shall be in accordance with CNB's payroll practices from
time to time in effect.
(2) The EMPLOYEE shall be paid an amount
equal to the higher of the aggregate bonus(es) paid to him with
respect to one of the two years immediately preceding the year
in which the Date of Termination occurs. Such amount shall be
paid to him in cash on the first anniversary date of the Date of
Termination.
(3) The EMPLOYEE shall be paid an amount
equal to the highest annual contribution made on his behalf
(other than his own salary reduction contributions) to each tax-
qualified and non-qualified Defined Contribution Plan of CNB
with respect to the year in which the Date of Termination occurs
or one of the two years immediately preceding such year. The
amount separately determined for each such plan shall be
aggregated and shall be paid to him in cash on the first
anniversary date of the Date of Termination.
(4) The EMPLOYEE shall accrue benefits
equal to the excess of (i) the aggregate retirement benefits he
would have received under the terms of each tax-qualified and
non-qualified Defined Benefit Plan of CNB as in effect
immediately prior to the Date of Termination had he
(A) continued to be employed for one more year, and (B) received
(on a pro rated basis, as appropriate) the greater of (I) the
highest compensation taken into account under each such plan
with respect to one of the two years immediately preceding the
year in which the Date of Termination occurs, or (II) his
annualized base compensation in effect immediately prior to the
Date of Termination (or prior to any reduction which entitled
him to terminate his employment for Good Reason), over (ii) the
retirement benefits he actually receives under such plans. The
frequency, manner and extent of payment of such benefits shall
be consistent with the terms of the plans to which they relate
and any elections made thereunder.
(5) The EMPLOYEE and his eligible dependents
shall be entitled to continue to participate at the same
aggregate benefit levels, for one year and at no out-of-pocket
or tax cost to him, in the Welfare Benefit Plans in which he was
a participant immediately prior to the Date of Termination, to
the extent permitted under the terms of such plans and
applicable law. To the extent CNB is unable to provide for
continued participation in a Welfare Benefit Plan, it shall
provide an equivalent benefit directly at no out-of-pocket or
tax cost to him. For purposes of the preceding two sentences,
CNB shall be deemed to have provided a benefit at no tax cost to
him if it pays an additional amount to him or on his behalf,
with respect to those benefits which would otherwise be
nontaxable to him, calculated in a manner consistent with the
provisions of Paragraph 12.
(c) Adjustment to Certain Subparagraph (b)
Compensation and Benefits. Notwithstanding the provisions of
Subparagraph (b)(5), CNB's obligation to pay or fund any
disability insurance premiums on behalf of the EMPLOYEE shall be
suspended while his Disability continues, provided the cessation
of payment or funding does not result in the termination of
disability benefits. Any amounts otherwise due under
Subparagraph (b) shall be reduced (but not below zero) by the
dollar amount of disability benefits received by him pursuant to
plans or policies funded, directly at its cost, by CNB.
(d) Earlier Cessation of Certain Welfare
Benefits. Notwithstanding the provisions of Subparagraph
(b)(5), CNB shall not be required to provide, at its cost, the
welfare benefits covered therein after the later of (i) the
attainment by the EMPLOYEE and his spouse (if any) of age 65, or
(ii) the date specified in the relevant plan document for
benefit termination (assuming that he was employed until age 65
or the normal retirement date, if any, specified in such
document).
(e) Death During Remaining Term of Agreement.
(1) In the event the EMPLOYEE dies during
the remaining term of this Agreement following his termination
for Disability and he is survived by a spouse, the compensation
and benefits remaining to be paid and provided under
Subparagraph (b) shall be unaffected by his death and shall be
paid and provided to her or on her behalf; provided, however,
that the extent of her rights to the accrued benefits described
in Subparagraph (b)(4) shall be determined by reference to the
relevant plan provisions and any elections made under such
plans; and provided further, that CNB shall not be required to
provide continued benefits with respect to her deceased husband;
and provided further, that in no event shall CNB be required to
provide, at its cost, the other welfare benefits described in
Subparagraph (b)(5) to such spouse and her eligible dependents
after the earlier of (i) her death, or (ii) the later of (A) her
attainment of age 65, or (B) the date specified in the relevant
plan document for benefit termination (assuming that the
EMPLOYEE was employed until age 65 or the normal retirement
date, if any, specified in such document).
(2) In the event the EMPLOYEE dies during
the remaining term of this Agreement following his termination
for Disability and he is not survived by a spouse, (i) CNB shall
thereafter make the remaining payments described in
Subparagraphs (b)(1) through (b)(3) directly to his estate,
(ii) the extent of the rights of any person to the accrued
benefits described in Subparagraph (b)(4) shall be determined by
reference to the relevant plan provisions and any elections made
under such plans, and (iii) CNB's obligation to provide
continued benefits under Subparagraph (b)(5) shall terminate.
(f) Compensation and Benefits Upon Expiration of
Remaining Term of Agreement. Upon the expiration of the
remaining term of this Agreement following the EMPLOYEE's
termination for Disability, and provided his Disability then
continues, he shall be entitled to receive the compensation and
benefits provided under the terms of any long-term disability
plan of CNB in effect on the Date of Termination or, if greater,
at the expiration of such remaining term. If such plan exists,
such compensation and benefits shall continue until the earlier
of (i) his death, or (ii) the later of (A) his attainment of
age 65, or (B) the date specified in the plan document for
benefit termination. To the extent CNB is unable to provide
such compensation and benefits under its long-term disability
plan, if any, it shall provide equivalent compensation and
benefits directly at no out-of-pocket or tax cost to him. For
purposes of the preceding sentence, CNB shall be deemed to have
provided compensation and benefits at no tax cost to him if it
pays an additional amount to him or on his behalf, with respect
to the compensation and benefits which would otherwise be
nontaxable to him, calculated in a manner consistent with the
provisions of Paragraph 12.
7. Termination By Reason of Death.
(a) Compensation and Benefits to Surviving
Spouse. In the event the EMPLOYEE dies while he is employed
under this Agreement and is survived by a spouse, CNB shall pay
or provide the compensation and benefits set forth below:
(1) The surviving spouse shall be paid an
amount equal to the greater of (i) the EMPLOYEE's highest base
compensation received during one of the two calendar years
immediately preceding the calendar year in which the Date of
Termination occurs, or (ii) his base compensation in effect
immediately prior to the Date of Termination (or prior to any
reduction which entitled him to terminate his employment for
Good Reason) for a period of one year, beginning with such Date
of Termination. The frequency and manner of payment of such
amounts shall be in accordance with CNB's payroll practices from
time to time in effect.
(2) The surviving spouse shall be paid an
amount equal to the highest payment made to EMPLOYEE under each
incentive bonus plan of CNB with respect to one of the two years
immediately preceding the year in which the Date of Termination
occurs. Such amount shall be paid in cash to her within 30 days
after the Date of Termination.
(3) The surviving spouse shall be paid an
amount equal to the sum of the highest annual contribution made
on the EMPLOYEE's behalf (other than his own salary reduction
contributions) to each tax-qualified and non-qualified Defined
Contribution Plan of CNB with respect to the year in which the
Date of Termination occurs or one of the two years immediately
preceding such year. Such amount shall be paid in cash to her
within 30 days after the Date of Termination or within 30 days
after such amount can first be determined, whichever is later.
(4) Subject to the following sentence, the
surviving spouse shall be paid benefits determined by reference
to the excess of (i) the aggregate retirement benefits the
EMPLOYEE would have accrued under the terms of each tax-
qualified and non-qualified Defined Benefit Plan as in effect
immediately prior to the Date of Termination, had he (A)
continued to be employed for a period of one year following the
Date of Termination, and (B) received (on a pro rated basis, as
appropriate) the greater of (I) the highest compensation taken
into account under each such plan with respect to one of the two
years immediately preceding the year in which the Date of
Termination occurs, or (II) his annualized base compensation in
effect immediately prior to the Date of Termination (or prior to
any reduction which entitled him to terminate his employment for
Good Reason), over (ii) the retirement benefits actually
determined under such plans. The frequency, manner, and extent
of payment of such benefits shall be consistent with the terms
of the plans to which they relate and any elections made
thereunder.
(5) The surviving spouse and her eligible
dependents shall be entitled to continue to participate at the
same aggregate benefit levels, for a period of one year
following the Date of Termination and at no out-of-pocket or tax
cost to her, in the Welfare Benefit Plans in which the EMPLOYEE
was a participant immediately prior to the Date of Termination,
to the extent permitted under the terms of such plans and
applicable law; provided, however, that CNB shall not be
required to provide continued benefits with respect to her
deceased husband; and provided further, that CNB shall not
thereafter be required to provide, at its cost, the other
welfare benefits covered by such plans to such spouse and her
eligible dependents after the earlier of (i) her death, or (ii)
the later of (A) her attainment of age 65, or (B) the date
specified in the relevant plan document for benefit termination
(assuming the EMPLOYEE was employed until age 65 or the normal
retirement date, if any, specified in such document). To the
extent CNB is unable to provide for continued participation in a
Welfare Benefit Plan as required, it shall provide an equivalent
benefit directly at no out-of-pocket or tax cost to her. For
purposes of the preceding two sentences, CNB shall be deemed to
have provided a benefit at no tax cost to her if it pays an
additional amount to her or on her behalf, with respect to those
benefits which would otherwise be nontaxable to her, calculated
in a manner consistent with the provisions of Paragraph 12.
(b) Compensation and Benefits to Estate, Etc. In
the event the EMPLOYEE dies while he is employed under this
Agreement and is not survived by a spouse, (i) CNB shall make
the payments described in Subparagraphs (a)(1) through (a)(3)
directly to his estate, (ii) the extent of the rights of any
person to the accrued benefits described in Subparagraph (a)(4)
shall be determined by reference to the relevant plan provisions
and any elections made under such plans, and (iii) CNB's
obligation to provide benefits under Subparagraph (a)(5) shall
terminate.
8. Termination By CNB for Cause.
(a) In General. In the event CNB intends to
terminate the EMPLOYEE's employment for Cause, it shall deliver
a Notice of Termination to him which specifies a Date of
Termination not less than 30 days following the date of such
notice, unless a shorter period of notice is required by the
principal regulator of CNB or any affiliate of CNB.
(b) Compensation. Within 30 days after the
EMPLOYEE's termination under Subparagraph (a), CNB shall pay
him, in one lump sum, his accrued but unpaid base compensation
and vacation compensation earned through the Date of
Termination.
9. Termination By the EMPLOYEE Without Good Reason.
(a) In General. In the event the EMPLOYEE
intends to terminate his employment without Good Reason, he
shall deliver a Notice of Termination to CNB which specifies a
Date of Termination not less than (i) 90 days following the date
of such notice, if a Change in Control shall not have occurred,
or (ii) 30 days following the date of such notice, if a Change
in Control shall have occurred.
(b) Compensation. Within 30 days after the
EMPLOYEE's termination under Subparagraph (a), CNB shall pay
him, in one lump sum, his accrued but unpaid base compensation
and vacation compensation earned through the Date of
Termination.
10. Termination By CNB Without Disability or Cause.
(a) In General. In the event CNB intends to
terminate the EMPLOYEE's employment for any reason other than
Disability or Cause, it shall deliver a Notice of Termination to
him which specifies a Date of Termination not less than 90 days
following the date of such notice.
(b) Compensation and Benefits During Remaining
Term of Agreement. In the event of the termination of the
EMPLOYEE's employment under Subparagraph (a), CNB shall pay or
provide the compensation and benefits described in Paragraph
6(b) over a period of one (1) year beginning on the Date of
Termination and the term of this Agreement shall continue until
all such compensation and benefits are paid to EMPLOYEE in full.
(c) Adjustment to Certain Subparagraph (b)
Compensation and Benefits. In the event the EMPLOYEE suffers a
Disability during the remaining term of this Agreement following
the Date of Termination, CNB's obligation to pay or fund any
disability insurance premiums on his behalf shall be suspended
while his Disability continues, provided the cessation of
payment or funding does not result in the termination of
disability benefits. Any amounts described in Paragraph 6(b)
and otherwise payable under Subparagraph (b) shall be reduced
(but not below zero) by the dollar amount of disability benefits
received by him pursuant to plans or policies funded, directly
at its cost, by CNB.
(d) Earlier Cessation of Certain Welfare
Benefits. Notwithstanding the provisions of Subparagraph (b),
CNB shall not be required to provide, at its cost, the welfare
benefits covered by Paragraph 6(b)(5) after the later of (i) the
attainment by the EMPLOYEE and his spouse (if any) of age 65, or
(ii) the date specified in the relevant plan document for
benefit termination (assuming that he was employed until age 65
or the normal retirement date, if any, specified in such
document).
(e) Death During Remaining Term of Agreement.
(1) In the event the EMPLOYEE dies during
the remaining term of this Agreement following his termination
without Disability or Cause by CNB and he is survived by a
spouse, the compensation and benefits required to be paid and
provided under Subparagraph (b) shall be unaffected by his death
and shall be paid and provided to her or on her behalf;
provided, however, that the extent of her rights to the accrued
benefits described in Paragraph 6(b)(4) shall be determined by
reference to the relevant plan provisions and any elections made
under such plans; and provided further, that CNB shall not be
required to provide continued benefits with respect to her
deceased husband; and provided further, that in no event shall
CNB be required to provide, at its cost, the other welfare
benefits described in Paragraph 6(b)(5) to such spouse and her
eligible dependents after the earlier of (i) her death, or (ii)
the later of (A) her attainment of age 65, or (B) the date
specified in the relevant plan document for benefit termination
(assuming that the EMPLOYEE was employed until age 65 or the
normal retirement date, if any, specified in such document).
(2) In the event the EMPLOYEE dies during
the remaining term of this Agreement following his termination
without Disability or Cause and he is not survived by a spouse,
(i) CNB shall thereafter make the remaining payments described
in Paragraphs 6(b)(1) through 6(b)(3) directly to his estate,
(ii) the extent of the rights of any person to the accrued
benefits described in Paragraph 6(b)(4) shall be determined by
reference to the relevant plan provisions and any elections made
under such plans, and (iii) CNB's obligation to provide the
continued benefits described in Paragraph 6(b)(5) shall
terminate.
11. Termination By the EMPLOYEE for Good Reason.
(a) In General. In the event the EMPLOYEE
intends to terminate his employment for Good Reason, he shall
deliver a Notice of Termination to CNB which specifies a Date of
Termination not less than 30 days following the date of such
notice.
(b) Compensation and Benefits During Remaining
Term of Agreement. In the event of the termination of the
EMPLOYEE's employment under Subparagraph (a), CNB shall pay or
provide the compensation and benefits described in Paragraph
6(b), except that all such compensation and benefits shall be
for a term of (i) eighteen (18) months from the Date of
Termination , in the case of a termination prior to a Change in
Control, or (ii) two (2) years from the Date of Termination in
the case of a termination after a Change in Control, and the
term of this Agreement shall continue until all such
compensation and benefits are paid to EMPLOYEE in full.
(c) Adjustment to Certain Subparagraph (b)
Compensation and Benefits. In the event the EMPLOYEE suffers a
Disability during the remaining term of this Agreement following
the Date of Termination, CNB's obligation to pay or fund any
disability insurance premiums on his behalf shall be suspended
while his Disability continues, provided the cessation of
payment or funding does not result in the termination of
disability benefits. Any amounts described in Paragraph 6(b)
and otherwise payable under Subparagraph (b) shall be reduced
(but not below zero) by the dollar amount of disability benefits
received by him pursuant to plans or policies funded, directly
at its cost, by CNB.
(d) Earlier Cessation of Certain Welfare
Benefits. Notwithstanding the provisions of Subparagraph (b),
CNB shall not be required to provide, at its cost, the welfare
benefits covered by Paragraph 6(b)(5) after the later of (i) the
attainment by the EMPLOYEE and his spouse (if any) of age 65, or
(ii) the date specified in the relevant plan document for
benefit termination (assuming that he was employed until age 65
or the normal retirement date, if any, specified in such
document).
(e) Death During Remaining Term of Agreement.
(1) In the event the EMPLOYEE dies during
the remaining term of this Agreement following his termination
for Good Reason and he is survived by a spouse, the compensation
and benefits required to be paid and provided under Subparagraph
(b) shall be unaffected by his death and shall be paid and
provided to her or on her behalf; provided, however, that the
extent of her rights to the accrued benefits described in
Paragraph 6(b)(4) shall be determined by reference to the
relevant plan provisions and any elections made under such
plans; and provided further, that CNB shall not be required to
provide continued benefits with respect to her deceased husband;
and provided further, that in no event shall CNB be required to
provide, at its cost, the other welfare benefits described in
Paragraph 6(b)(5) to such spouse and her eligible dependents
after the earlier of (i) her death, or (ii) the later of (A) her
attainment of age 65, or (B) the date specified in the relevant
plan document for benefit termination (assuming that the
EMPLOYEE was employed until age 65 or the normal retirement
date, if any, specified in such document).
(2) In the event the EMPLOYEE dies during
the remaining term of this Agreement following his termination
for Good Reason and he is not survived by a spouse, (i) CNB
shall thereafter make the remaining payments described in
Paragraphs 6(b)(1) through 6(b)(3) directly to his estate, (ii)
the extent of the rights of any person to the accrued benefits
described in Paragraph 6(b)(4) shall be determined by reference
to the relevant plan provisions and any elections made under
such plans, and (iii) CNB's obligation to provide the continued
benefits described in Paragraph 6(b)(5) shall terminate.
12. Provisions Relating to Excise Taxes.
(a) In General. In the event the EMPLOYEE
becomes liable, for any taxable year, for the payment of an
Excise Tax (because of a change in control) with respect to the
compensation and benefits payable by CNB under this Agreement or
otherwise, CNB shall make one or more Gross-Up Payments to the
EMPLOYEE or on his behalf. The amount of any Gross-Up Payment
shall be calculated by a certified public accountant or other
tax professional designated jointly by the EMPLOYEE and CNB.
The provisions of this paragraph shall apply with respect to the
EMPLOYEE's surviving spouse or estate, where relevant.
(b) Methodology for Calculation of Gross-Up
Payment. For purposes of determining the amount of any Gross-Up
Payment, the EMPLOYEE shall be deemed to pay income taxes at the
highest federal, state, and local marginal rates of tax for the
calendar year in which the Gross-Up Payment is to be made, net
of the maximum reduction in federal income tax which could be
obtained from the deduction of state and local income taxes. In
the event that the Excise Tax is subsequently determined to be
less than the amount taken into account at the time the Gross-Up
Payment was made, the EMPLOYEE shall repay to CNB, at the time
that the amount of such reduction in Excise Tax is finally
determined, the portion of the Gross-Up Payment attributable to
the reduction (plus a portion of the Gross-Up Payment
attributable to the Excise Tax and the federal, state, and local
income taxes imposed on the portion of the Gross-Up Payment
being repaid by the EMPLOYEE to the extent such repayment
results in a reduction in Excise Tax or federal, state, or local
income tax), plus interest on the amount of such repayment.
Such interest shall be calculated by using the rate in effect
under Section 1274(d)(1) of the IRC, on the date the Gross-Up
Payment was made, for debt instruments with a term equal to the
period of time which has elapsed from the date the Gross-Up
Payment was made to the date of repayment. In the event that
the Excise Tax is subsequently determined to exceed the amount
taken into account at the time the Gross-Up Payment was made
(including by reason of any payment the existence or amount of
which could not be determined at the time of the Gross-Up
Payment), CNB shall make an additional Gross-Up Payment with
respect to the excess at the time the amount thereof is finally
determined, plus interest calculated in a manner similar to that
described in the preceding sentence.
(c) Time of Payment. Any Gross-Up Payment
provided for herein shall be paid not later than the 30th day
following the payment of any compensation or the provision of
any benefit which causes such payment to be made; provided,
however, that if the amount of such payment cannot be finally
determined on or before such day, CNB shall pay on such day an
estimate of the minimum amount of such payment and shall pay the
remainder of such payment (together with interest calculated in
a manner similar to that described in Subparagraph (b)) as soon
as the amount thereof can be determined. In the event that the
amount of an estimated payment exceeds the amount subsequently
determined to have been due, such excess shall constitute a loan
by CNB to the EMPLOYEE, payable on the 30th day after demand by
CNB (together with interest calculated in a manner similar to
that described in Subparagraph (b)).
(d) Other Arrangements. Notwithstanding the
provisions of this paragraph to the contrary, the actual amounts
payable hereunder as Gross-Up Payments shall be coordinated with
any similar amounts paid to the EMPLOYEE under any other
contract, plan, or arrangement.
13. Fees and Expenses of the EMPLOYEE. After a
Change in Control and except as provided in the following
sentence, CNB shall pay, within 30 days following demand by the
EMPLOYEE, all legal, accounting, actuarial, and related fees and
expenses incurred by him in connection with the enforcement of
this Agreement. An arbitration panel or a court of competent
jurisdiction shall be empowered to deny payment to the EMPLOYEE
of such fees and expenses only if it determines that he
instituted a proceeding hereunder, or otherwise acted, in bad
faith.
14. Reduction for Compensation and Benefits Received
Under CNB Severance Policy, Etc. Notwithstanding anything
herein to the contrary, in the event the EMPLOYEE, his surviving
spouse, or any other person becomes entitled to continued
compensation and benefits hereunder by reason of the EMPLOYEE's
termination of employment and, in addition, compensation or
similar benefits are payable under a severance policy, program
or arrangement maintained by CNB (other than retirement plans),
then the compensation or benefits otherwise payable hereunder
shall be reduced by the compensation or benefits provided under
such severance policy, program or arrangement.
15. Mitigation. The EMPLOYEE shall not be required
to mitigate the amount of any compensation or benefits which may
become payable hereunder by reason of his termination by seeking
other employment or otherwise, nor, except as otherwise provided
in the following sentence or elsewhere herein, shall the amount
of any such compensation or benefits be reduced by any
compensation or benefits received by the EMPLOYEE as the result
of his employment by another employer. Notwithstanding anything
in this Agreement to the contrary, CNB's obligation to provide
any medical and dental benefits hereunder may be suspended, with
the written concurrence of the EMPLOYEE or, if applicable, his
surviving spouse during any period of time that such benefits
are being provided by reason of his or her employment.
16. Funding of Compensation and Benefits;
Acceleration of Certain Payments.
(a) Grantor Trust. In the event (i) the
EMPLOYEE's employment is terminated without Cause or he
terminates his employment for Good Reason, and (ii) and a
Change in Control has occurred as of the Date of Termination or
occurs thereafter, the EMPLOYEE shall have the right to require
CNB to establish a grantor trust (taxable to CNB) and fund such
trust, on an actuarially sound basis, to provide the
compensation and benefits to which he is entitled hereunder,
other than those which may be paid pursuant to the provisions of
Subparagraph (c). The specific terms of such trust shall be as
agreed to by the parties in good faith; provided, however, that
the trustee shall be a financial institution independent of CNB;
and provided further, that in no event shall CNB be entitled to
withdraw funds from the trust for its benefit, or otherwise
voluntarily assign or alienate such funds, until such time as
all compensation and benefits required hereunder are paid and
provided. The determination of the extent of required funding,
including any supplemental funding in the event of adverse
investment performance of trust assets, shall be made by an
actuary or a certified public accountant retained by each party.
To the extent such professionals cannot agree on the proper
level of funding, they shall select a third such professional
whose determination shall be binding upon the parties.
Notwithstanding the foregoing, CNB shall remain liable for all
compensation and benefits required to be paid or provided
hereunder.
(b) Alternate Security. In lieu of the right
given to the EMPLOYEE under Subparagraph (a), he shall have the
right under such circumstances to require that CNB provide (i)
an irrevocable standby letter of credit issued by a financial
institution other than CNB or any Subsidiary of CNB with a
senior debt credit rating of "A" or better by Xxxxx'x Investors
Service or Standard & Poor's Corporation, or (ii) other security
reasonably acceptable to him, to secure the payment of such
compensation and benefits.
(c) Accelerated Payment of Present Value of
Certain Compensation. In the event (i) the EMPLOYEE's
employment is terminated without Cause or he terminates his
employment for Good Reason, and (ii) a Change in Control has
occurred as of the Date of Termination or occurs thereafter, the
EMPLOYEE shall have the continuing right to demand that the
present value of the remaining payments described in Paragraphs
6(b)(1) through (3), and payable by reason of the provisions of
Paragraph 10 or 11 (as the case may be), be paid to him in one
lump sum within 30 days after the date written demand is given.
For purposes of calculating the present value of such payments,
a discount factor shall be applied to each such payment which is
equal to the relevant applicable federal rate in effect on the
date written demand is given by him, determined by reference to
the period of time between the date of such notice and the
scheduled time such payment would otherwise be made. In the
event any payment described in Paragraphs 6(b)(1) through (3) is
not yet determinable on the date written demand is made, the
other payments shall nonetheless be made as provided above; and
the undetermined payment shall be made within 30 days after it
becomes determinable, calculated as provided in the preceding
sentence but by treating the date on which the payment becomes
determinable as the date of written notice. Nothing in this
subparagraph shall be construed as affecting the EMPLOYEE's
right to one or more Gross-Up Payments in accordance with the
provisions of Paragraph 12; and a Gross-Up Payment (if
applicable) will be calculated and made with any payment made
under this subparagraph, as well as any other Gross-Up Payments
that may be required hereunder at a subsequent date.
17. Withholding Taxes. All compensation and benefits
provided for herein shall, to the extent required by law, be
subject to federal, state, and local tax withholding.
18. Confidential Information. The EMPLOYEE agrees
that during and subsequent to his employment with CNB, he will
not, at any time, communicate or disclose to any unauthorized
person, without the written consent of the CNB, any proprietary
or other confidential information concerning CNB or any
Subsidiary of CNB; provided, however, that the obligations under
this paragraph shall not apply to the extent that such matters
(i) are disclosed in circumstances where the EMPLOYEE is legally
obligated to do so, or (ii) become generally known to and
available for use by the public otherwise than by his wrongful
act or omission; and provided further, that he may disclose any
knowledge of insurance, financial, legal and economic
principles, concepts and ideas which are not solely and
exclusively derived from the business plans and activities of
CNB.
19. Covenants Not to Compete or to Solicit.
(a) Noncompetition. During the period in which
he is employed by CNB and, if the EMPLOYEE's employment
terminates under Paragraphs 6, 8, 9, 10 or 11, for a period of
12 months after the Date of Termination (the "Noncompetition
Period"), the EMPLOYEE shall not, without the written consent in
writing of the Board of Directors of CNB, become an officer,
employee, agent, partner, consultant, member, director, or a
four and nine-tenths percent or greater shareholder or equity
owner of any entity engaged in the banking, lending, asset
management, mutual fund, financial planning or investment
security business within the New Jersey counties of Camden,
Burlington, Gloucester, Salem, Atlantic, Cape May and
Cumberland, or any other New Jersey county in which CNB has a
branch or loan production office. If at the time of the
enforcement of this paragraph a court holds that the duration,
scope, or area restrictions stated herein are unreasonable under
the circumstances then existing and, thus, unenforceable, CNB
and the EMPLOYEE agree that the maximum duration, scope, or area
reasonable under such circumstances shall be substituted for the
stated duration, scope, or area.
(b) Nonsolicitation. During his employment and
the Noncompetition Period, the EMPLOYEE shall not, whether on
his own behalf or on behalf of any other individual or business
entity, solicit, endeavor to entice away from CNB, a Subsidiary
or any affiliated company, or otherwise interfere with the
relationship of CNB, a Subsidiary or any affiliated company with
any person who is, or was within the then most recent 12 month
period, an employee or associate thereof; provided, however,
that this subparagraph shall not apply following the occurrence
of a Change in Control.
(c) Extension of Noncompetition Period. The
Noncompetition Period shall be automatically extended by the
length of time (if any) in which the EMPLOYEE is in violation of
any of the terms of this Section 19.
20. Arbitration. To the extent permitted by
applicable law, any controversy or dispute arising out of or
relating to this Agreement, or any alleged breach hereof, shall
be settled by arbitration in Camden County, New Jersey, in
accordance with the commercial rules of the American Arbitration
Association then in existence (to the extent such rules are not
inconsistent with the provisions of this Agreement), it being
understood and agreed that the arbitration panel shall consist
of three individuals acceptable to the parties hereto. In the
event that the parties cannot agree on three arbitrators within
20 days following receipt by one party of a demand for
arbitration from another party, then the EMPLOYEE and CNB shall
each designate one arbitrator and the two arbitrators selected
shall select the third arbitrator. The arbitration panel so
selected shall convene a hearing no later than 90 days following
the selection of the panel. The arbitration award shall be
final and binding upon the parties, and judgment may be entered
thereon in the New Jersey Superior Court or in any other court
of competent jurisdiction.
21. Additional Equitable Remedy. The EMPLOYEE
acknowledges and agrees that CNB's remedy at law for a breach or
a threatened breach of the provisions of Paragraphs 18 and 19
would be inadequate; and, in recognition of this fact and
notwithstanding the provisions of Paragraph 20, in the event of
such a breach or threatened breach by him, it is agreed that CNB
shall be entitled to request equitable relief in the form of
specific performance, temporary restraining order, temporary or
permanent injunction, or any other equitable remedy which may
then be available. Nothing in this paragraph shall be construed
as prohibiting CNB from pursuing any other remedy available
under this Agreement for such a breach or threatened breach.
22. Related Agreements. Except as may otherwise be
provided herein, to the extent that any provision of any other
agreement between CNB and the EMPLOYEE shall limit, qualify,
duplicate, or be inconsistent with any provision of this
Agreement, the provision in this Agreement shall control and
such provision of such other agreement shall be deemed to have
been superseded, and to be of no force or effect, as if such
other agreement had been formally amended to the extent
necessary to accomplish such purpose.
23. No Effect on Other Rights. Except as otherwise
specifically provided herein, nothing contained in this
Agreement shall be construed as adversely affecting any rights
the EMPLOYEE may have under any agreement, plan, policy or
arrangement to the extent any such right is not inconsistent
with the provisions hereof.
24. Exclusive Rights and Remedy. Except for any
explicit rights and remedies the EMPLOYEE may have under any
other contract, plan or arrangement with CNB, the compensation
and benefits payable hereunder and the remedy for enforcement
thereof shall constitute his exclusive rights and remedy in the
event of his termination of employment.
25. Director and Officer Liability Insurance;
Indemnification. CNB shall provide the EMPLOYEE (including his
heirs, executors, and administrators) with the maximum coverage
permitted under its directors' and officers' liability insurance
policy, as soon as CNB obtains such a policy, at CNB's expense,
and shall indemnify him (and his heirs, executors, and
administrators) as an officer of CNB to the fullest extent
permitted under Federal and New Jersey law against all expenses
and liabilities reasonably incurred by him in connection with or
arising out of any action, suit, or proceeding in which he may
be involved by reason of his having been an officer of CNB or
any Subsidiary or affiliated company (whether or not he
continues to be such an officer at the time of incurring such
expenses or liabilities). Such expenses and liabilities shall
include, but not be limited to, judgments, court costs, and
attorneys' fees, and the costs of reasonable settlements.
26. Notices. Any notice required or permitted under
this Agreement shall be sufficient if it is in writing and shall
be deemed given (i) at the time of personal delivery to the
addressee, or (ii) at the time sent certified mail, with return
receipt requested, addressed as follows:
If to the EMPLOYEE: Xxxxxx X. Xxxx
000 Xxxxxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
If to CNB: 1st Colonial National Bank
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx,
President and CEO
The name or address of any addressee may be changed at any time
and from time to time by notice similarly given.
27. No Waiver. The failure by any party to this
Agreement at any time or times hereafter to require strict
performance by any other party of any of the provisions, terms,
or conditions contained in this Agreement shall not waive,
affect, or diminish any right of the first party at any time or
times thereafter to demand strict performance therewith and with
any other provision, term, or condition contained in this
Agreement. Any actual waiver of a provision, term, or condition
contained in this Agreement shall not constitute a waiver of any
other provision, term, or condition herein, whether prior or
subsequent to such actual waiver and whether of the same or a
different type. The failure of CNB to promptly terminate the
EMPLOYEE's employment for Cause or the EMPLOYEE to promptly
terminate his employment for Good Reason shall not be construed
as a waiver of the right of termination, and such right may be
exercised at any time following the occurrence of the event
giving rise to such right.
28. Survival. Notwithstanding the nominal
termination of this Agreement and the EMPLOYEE's employment
hereunder, the provisions hereof which specify continuing
obligations, compensation and benefits, and rights (including
the otherwise applicable term hereof) shall remain in effect
until such time as all such obligations are discharged, all such
compensation and benefits are received, and no party or
beneficiary has any remaining actual or contingent rights
hereunder.
29. Severability. In the event any provision in this
Agreement shall be held illegal or invalid for any reason, such
illegal or invalid provision shall not affect the remaining
provisions hereof, and this Agreement shall be construed,
administered and enforced as though such illegal or invalid
provision were not contained herein.
30. Binding Effect and Benefit. The provisions of
this Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of CNB and the executors,
personal representatives, surviving spouse, heirs, devisees, and
legatees of the EMPLOYEE.
31. Entire Agreement. This Agreement embodies the
entire agreement among the parties with respect to the subject
matter hereof, and it supersedes all prior discussions and oral
understandings of the parties with respect thereto.
32. No Assignment. This Agreement, and the benefits
and obligations hereunder, shall not be assignable by any party
hereto except by operation of law.
33. No Attachment. Except as otherwise provided by
law, no right to receive compensation or benefits under this
Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to set off, execution, attachment, levy, or
similar process, and any attempt, voluntary or involuntary, to
effect any such action shall be null and void.
34. Captions. The captions of the several paragraphs
and subparagraphs of this Agreement have been inserted for
convenience of reference only. They constitute no part of this
Agreement and are not to be considered in the construction
hereof.
35. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed one
and the same instrument which may be sufficiently evidenced by
any one counterpart.
36. Number. Wherever any words are used herein in
the singular form, they shall be construed as though they were
used in the plural form, as the context requires, and vice
versa.
37. Applicable Law. Except to the extent preempted
by federal law, the provisions of this Agreement shall be
construed, administered, and enforced in accordance with the
domestic internal law of the State of New Jersey without
reference to its laws regarding conflict of laws.
IN WITNESS WHEREOF, the parties have executed this
Agreement, or caused it to be executed, as of the date first
above written.
____________________________(SEAL)
Xxxxxx X. Xxxx
1ST COLONIAL NATIONAL BANK
By:_______________________________
Xxxxxx X. Xxxxxxxxx,
President and Chief Executive
Officer
GLOSSARY
"Board of Directors" means the board of directors of
the relevant corporation.
"Cause" means (i) a documented repeated and willful
failure by the EMPLOYEE to perform his duties, but only after
written demand and only if termination is effected by action
taken by a vote of (A) prior to a Change in Control, at least a
majority of the directors of CNB then in office, or (B) after a
Change in Control, at least 80% of the nonofficer directors of
CNB then in office, (ii) his final conviction of a felony, (iii)
conduct by him which constitutes moral turpitude which is
directly and materially injurious to CNB or any Material
Subsidiary, (iv) willful material violation of corporate policy,
(v) the issuance by the regulator of CNB or any Subsidiary or
affiliated company of an unappealable order to the effect that
he be permanently discharged, or (vi) if prior to any receipt by
CNB of a notice of non-objection to EMPLOYEE serving as Senior
Vice President and Chief Financial Officer of CNB, CNB receives
notice from the OCC that it objects to EMPLOYEE serving as a
Senior Vice President or the Chief Financial Officer of CNB.
For purposes of this definition, no act or failure to
act on the part of the EMPLOYEE shall be considered "willful"
unless done or omitted not in good faith and without reasonable
belief that the action or omission was in the best interest of
CNB or any of its Subsidiaries or affiliated companies.
"Change in Control" means the occurrence of any of the following
events:
(a) any Person (except (i) CNB or any Subsidiary
or prior affiliate of CNB, or (ii) any Employee Benefit Plan (or
any trust forming a part thereof) maintained by CNB or any
Subsidiary or prior affiliate of CNB) is or becomes the
beneficial owner, directly or indirectly, of CNB's securities
representing 19.9% or more of the combined voting power of CNB's
then outstanding securities, or 50.1% or more of the combined
voting power of a Material Subsidiary's then outstanding
securities, other than pursuant to a transaction described in
Clause (c);
(b) there occurs a sale, exchange, transfer or
other disposition of substantially all of the assets of CNB or a
Material Subsidiary to another entity, except to an entity
controlled directly or indirectly by CNB;
(c) there occurs a merger, consolidation, share
exchange, division or other reorganization of or relating to
CNB, unless--
(i) the shareholders of CNB immediately
before such merger, consolidation, share exchange, division or
reorganization own, directly or indirectly, immediately
thereafter at least two-thirds of the combined voting power of
the outstanding voting securities of the Surviving Company in
substantially the same proportion as their ownership of the
voting securities immediately before such merger, consolidation,
share exchange, division or reorganization; and
(ii) the individuals who, immediately
before such merger, consolidation, share exchange, division or
reorganization, are members of the Incumbent Board continue to
constitute at least two-thirds of the board of directors of the
Surviving Company; provided, however, that if the election, or
nomination for election by CNB's shareholders, of any new
director was approved by a vote of at least two-thirds of the
Incumbent Board, such director shall, for the purposes hereof,
be considered a member of the Incumbent Board; and provided
further, however, that no individual shall be considered a
member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened
Election Contest or Proxy Contest, including by reason of any
agreement intended to avoid or settle any Election Contest or
Proxy Contest; and
(iii) no Person (except (A) CNB or any
Subsidiary or prior affiliate of CNB, (B) any Employee Benefit
Plan (or any trust forming a part thereof) maintained by CNB or
any Subsidiary or prior affiliate of CNB, or (C) the Surviving
Company or any Subsidiary or prior affiliate of the Surviving
Company) has beneficial ownership of 19.9% or more of the
combined voting power of the Surviving Company's outstanding
voting securities immediately following such merger,
consolidation, share exchange, division or reorganization;
(d) a plan of liquidation or dissolution of CNB,
other than pursuant to bankruptcy or insolvency laws, is
adopted; or
(e) during any period of two consecutive years,
individuals who, at the beginning of such period, constituted
the Board of Directors of CNB cease for any reason to constitute
at least a majority of such Board of Directors, unless the
election, or the nomination for election by CNB's shareholders,
of each new director was approved by a vote of at least two-
thirds of the directors then still in office who were directors
at the beginning of the period; provided, however, that no
individual shall be considered a member of the Board of
Directors of CNB at the beginning of such period if such
individual initially assumed office as a result of either an
actual or threatened Election Contest or Proxy Contest,
including by reason of any agreement intended to avoid or settle
any Election Contest or Proxy Contest.
Notwithstanding the foregoing, a Change in Control shall not be
deemed to have occurred if a Person becomes the beneficial
owner, directly or indirectly, of securities representing 19.9%
or more of the combined voting power of CNB's then outstanding
securities solely as a result of an acquisition by CNB of its
voting securities which, by reducing the number of shares
outstanding, increases the proportionate number of shares
beneficially owned by such Person; provided, however, that if a
Person becomes a beneficial owner of 19.9% or more of the
combined voting power of CNB's then outstanding securities by
reason of share repurchases by CNB and thereafter becomes the
beneficial owner, directly or indirectly, of any additional
voting securities of CNB, then a Change in Control shall be
deemed to have occurred with respect to such Person under
Clause (a).
Notwithstanding anything contained herein to the contrary, if
the EMPLOYEE's employment is terminated and he reasonably
demonstrates that such termination (i) was at the request of a
third party who has indicated an intention of taking steps
reasonably calculated to effect a Change in Control and who
effects a Change in Control, or (ii) otherwise occurred in
connection with, or in anticipation of, a Change in Control
which actually occurs, then for all purposes hereof, a Change in
Control shall be deemed to have occurred on the day immediately
prior to the date of such termination of his employment.
"CNB" means 1st Colonial National Bank.
"Date of Termination" means:
(a) if the EMPLOYEE's employment is terminated
for Disability, 30 days after the Notice of Termination is given
(provided that he shall not have returned to the performance of
his duties on a full-time basis during such 30-day period);
(b) if the EMPLOYEE's employment terminates by
reason of his death, the date of his death;
(c) if the EMPLOYEE's employment is terminated by
CNB for Cause, the date of termination specified in the Notice
of Termination and determined in accordance with Section 8(a);
(d) if the EMPLOYEE's employment is terminated by
him without Good Reason, the date of termination specified in
the Notice of Termination and determined in accordance with
Section 9(a);
(e) if the EMPLOYEE's employment is terminated by
CNB for any reason other than for Disability or Cause, the date
specified in the Notice of Termination and determined in
accordance with Section 10(a); or
(f) if the EMPLOYEE's employment is terminated by
him for Good Reason, the termination date specified in the
Notice of Termination and determined in accordance with Section
11(a);
provided, however that the Date of Termination shall mean the
actual date of termination in the event the parties mutually
agree to a date other than that described above.
"Defined Benefit Plan" has the meaning ascribed to
such term in Section 3(35) of ERISA.
"Defined Contribution Plan" has the meaning ascribed
to such term in Section 3(34) of ERISA.
"Disability" has the meaning ascribed to the term
"permanent and total disability" in Section 22(e)(3) of the IRC.
"Election Contest" means a solicitation with respect to the
election or removal of directors that, if CNB was subject to the
provisions of the 1934 Act, would be subject to the provisions
of Rule 14a-11 of the 1934 Act.
"Employee Benefit Plan" has the meaning ascribed to
such term in Section 3(3) of ERISA.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended and as the same may be amended from time
to time.
"Excise Tax" means the tax imposed by Section 4999 of
the IRC (or any similar tax that may hereafter be imposed by
federal, state or local law).
"EMPLOYEE" means Xxxxxx X. Xxxx, an adult individual
residing in King of Prussia, Pennsylvania.
"Good Reason" means:
(a) prior to a Change in Control--
(i) the EMPLOYEE's demotion to a lesser
position, or any material diminution in his duties or
responsibilities;
(ii) a reduction in the EMPLOYEE's base
compensation, other than a reduction which is proportionate to a
company-wide reduction in officer pay;
(iii) a failure to increase the EMPLOYEE's
base compensation, consistent with his performance rating,
within 24 months since the last increase, other than similar
treatment on a company-wide basis for officers or a voluntary
deferral by him of an increase; or
(iv) any purported termination of the
EMPLOYEE's employment which is not in accordance with the terms
of this Agreement; and
(b) after a Change in Control--
(i) a change in the EMPLOYEE's status or
position, or any material diminution in his duties or
responsibilities;
(ii) any increase in the EMPLOYEE's duties
inconsistent with his position;
(iii) any reduction in the EMPLOYEE's base
compensation;
(iv) a failure to increase the EMPLOYEE's
base compensation, consistent with his performance review,
within 12 months of the last increase; or a failure to consider
EMPLOYEE for an increase within 12 months of his last
performance review;
(v) a failure to continue in effect any
Employee Benefit Plan in which the EMPLOYEE participates,
including (whether or not they constitute Employee Benefit
Plans) incentive bonus, stock option, or other qualified or
nonqualified plans of deferred compensation (A) other than as a
result of the normal expiration of such a plan, or (B) unless
such plan is merged or consolidated into, or replaced with, a
plan with benefits which are of equal or greater value;
(vi) requiring the EMPLOYEE to be based
anywhere other than the county where his principal office was
located immediately prior to the Change in Control;
(vii) refusal to allow the EMPLOYEE to
attend to matters or engage in activities in which he was
permitted to engage prior to the Change in Control;
(viii) delivery to the EMPLOYEE of a Notice
of Nonextension;
(ix) failure to secure the affirmation by a
Successor, within three business days prior to a Change in
Control, of this Agreement and its or CNB's continuing
obligations hereunder (or where there is not at least three
business days advance notice that a Person may become a
Successor, within one business day after having notice that such
Person may become or has become a Successor); or
(x) any purported termination of the
EMPLOYEE's employment which is not in accordance with the terms
of this Agreement.
Notwithstanding anything herein to the contrary, at the election
of the EMPLOYEE, beginning with the 181st day following a Change
in Control and continuing through the first anniversary of such
Change in Control, he may terminate his employment for any
reason or no reason and such termination will be treated as
having occurred for Good Reason.
"Gross-Up Payment" means an additional payment to be
made to or on behalf of the EMPLOYEE in an amount such that the
net amount retained by him, after deduction of any Excise Tax on
the Total Payments and any federal, state, and local income tax
and Excise Tax on such additional payment, equals the Total
Payments.
"Incumbent Board" means the Board of Directors of CNB
as constituted at any relevant time.
"IRC" means the Internal Revenue Code of 1986, as
amended and as the same may be amended from time to time.
"Material Subsidiary" means a Subsidiary whose net
worth, determined under generally accepted accounting
principles, at the fiscal year end immediately prior to any
relevant time is at least 25% of the aggregate net worth of the
controlled group of corporations of which CNB is parent.
"1934 Act" means the Securities Exchange Act of 1934,
as amended and as the same may be amended from time to time.
"Notice of Non-Extension" means a written notice
delivered to or by the EMPLOYEE which advises that the Agreement
will not be extended as provided in Paragraph 3.
"Notice of Termination" means a written notice that
(i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for
termination of the EMPLOYEE's employment under the provision so
indicated, and (iii) gives the required advance notice of
termination.
"OCC" means the Office of the Comptroller of the
Company, and any successor thereto.
"Person" has the same meaning as such term has for
purposes of Sections 13(d) and 14(d) of the 1934 Act.
"Proxy Contest" means the solicitation of proxies or
consents by or on behalf of a Person other than the Board of
Directors of CNB.
"Subsidiary" means any business entity of which a
majority of its voting power or its equity securities or equity
interests is owned, directly or indirectly by CNB.
"Successor" means any Person that succeeds to, or has
the practical ability to control (either immediately or with the
passage of time), CNB's business directly, by merger or
consolidation, or indirectly, by purchase of CNB's voting
securities or all or substantially all of its assets.
"Surviving Company" means the business entity that is
a resulting company following a merger, consolidation, share
exchange, division or other reorganization of or relating to
CNB.
"Total Payments" means the compensation and benefits
that become payable under the Agreement or otherwise (and which
may be subject to an Excise Tax) by reason of the EMPLOYEE's
termination of employment, less the federal, state and local
income tax (but not any Excise Tax) on such compensation and
benefits, in each case determined without regard to any Gross-Up
Payments that may also be made.
"Welfare Benefit Plan" has the meaning ascribed to the
term "employee welfare benefit plan" in Section 3(1) of ERISA.
For purposes of determining the EMPLOYEE's or his dependents'
right to continued welfare benefits hereunder following his
termination of employment, the meaning of such term shall
include any retiree health plan maintained by CNB at any time
after the relevant Date of Termination, notwithstanding the fact
that the EMPLOYEE is not a participant therein prior to such
date.
