Exhibit 10 HH.(ii)
TERMINATION AGREEMENT
THIS AGREEMENT dated and entered into effective as of the merger of
Prime Bancorp, Inc. into First Valley Corporation, a wholly owned subsidiary of
Summit Bancorp., ("First Valley"), by and between Summit Bancorp., a New Jersey
corporation (the "Company"), and Xxxxx X. Xxxxx, (the "Executive").
W I T N E S S E T H:
WHEREAS, should the Company receive a proposal from a third person,
whether solicited by the Company or unsolicited, concerning a possible business
combination with or the acquisition of a substantial share of the equity or
voting securities of, the Company, the Board of Directors of the Company (the
"Board") has deemed it imperative that it and the Company be able to rely on the
Executive to continue to serve in the Executive's position, and that the Board
and the Company be able to receive and rely upon the Executive's advice, if they
request it, as to the best interests of the Company and its shareholders,
without concern that the Executive might be distracted by the personal
uncertainties and risks that such a proposal might otherwise create; and
WHEREAS, the Company desires to enhance executive
morale and its ability to retain existing management; and
WHEREAS, the Company desires to reward the Executive for the
Executive's valuable, dedicated service to the Company or one or more of its
subsidiary corporations (each, a "Subsidiary") should the Executive's service be
terminated under circumstances hereinafter described; and
WHEREAS, the Board therefore considers it in the best interests of the
Company and its shareholders for the Company to enter into Termination
Agreements, in form similar to this Agreement, with certain key executive
officers of the Company and one or more of its Subsidiaries; and
WHEREAS, the Executive is presently the duly elected and acting Senior
Executive Vice President of the Company and is a key executive with whom the
Company has been authorized by the Board to enter into this Agreement;
NOW, THEREFORE, to assure the Company of the Executive's continued
dedication and the availability of the Executive's advice and counsel in the
event of any such proposal, to induce the Executive to remain in the employ of
the Company or a Subsidiary, and to reward the Executive for the Executive's
valuable, dedicated service to the Company or a Subsidiary should the
Executive's service be terminated under circumstances hereinafter described, and
for other good and valuable consideration, the receipt and adequacy whereof each
party acknowledges, the Company and the Executive agree as follows:
1. OPERATION, EFFECTIVE DATE, AND TERM OF AGREEMENT.
(a) This Agreement is effective and binding on both parties as of the
date hereof. Notwithstanding its present effectiveness, the provisions of
paragraphs 3 and 4 of this Agreement shall become operative only when, as and if
there has been a "Change in Control" of the Company. For purposes of this
Agreement, a "Change in Control" of the Company shall be deemed to occur (i)
upon a Change in Control of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A or Item 1a of Form 8-K
promulgated under the Securities Exchange Act of 1934 ("Exchange Act"); or (ii)
if any "person" (including as such term is used in Sections 13(d)(3) and
14(d)(2) of the Exchange Act, but excluding the Company and its Subsidiaries or
an employee benefit plan of the Company (or any fiduciary thereof) or a
corporation controlled by the Company's shareholders in substantially the same
character and proportions as their ownership of stock of the Company, or an
underwriter temporarily holding securities pursuant to an offering of such
securities) is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing twenty-five percent (25%) or more of the
combined voting power of the Company's outstanding securities then entitled to
vote for the election of directors; or (iii) if during any period of two (2)
consecutive years, individuals who at the beginning of such period constitute
the Board cease for any reason to constitute at least a majority thereof
(excluding, for purposes of this calculation, any director who dies during such
period); or (iv) if the Company shall meet the delisting criteria of the New
York Stock Exchange or any successor exchange in respect of the number of
publicly-held shares or the number of shareholders holding one hundred (100)
shares or more; or (v) if the Board shall approve the sale of all or
substantially all of the assets of the Company; or (vi) if the Board shall
approve any merger, consolidation, issuance of securities or purchase of assets,
the result of which would be the occurrence of any event described in clause
(i), (ii), (iii) or (iv) above or that the shareholders of the Company receive
or retain stock having less than 65% combined voting power of the company
resulting from such transaction in substantially the same proportions as their
prior ownership of the Company.
(b) The Company shall be obligated to make the payments referred to in
paragraphs 3 and 4 hereof following, and the provisions of paragraph 2 hereof
shall apply to, a Change in Control of the Company only if such Change in
Control shall have occurred prior to, or as a result of efforts designed to
attain such and known to the parties hereto to have commenced prior to, the
earliest to occur of the Executive's death, Disability (as hereinafter defined),
Normal Retirement Date (as hereinafter defined) or the 15th day of October,
2002; provided, however, that commencing on the 15th day of October, 2002 and
each annual anniversary of such day thereafter (such day and each annual
anniversary thereof shall be hereinafter referred to as the "Renewal Date"), the
term of this Agreement shall automatically be extended for one additional year
unless at the Renewal Date the Executive is no longer employed by the Company or
a Subsidiary or has reached the Executive's Normal Retirement Date or at least
twelve (12) months prior to the next Renewal Date (and prior to a Change in
Control of the Company), the Company shall have given notice to the Executive
that it does not wish to extend the term of this Agreement; provided, further,
however, if a Change in Control of the Company shall have occurred during the
term of this Agreement, this Agreement shall continue in effect for a period of
not less than thirty-six (36) months beyond the month in which each such Change
in Control of the Company occurred, and thereafter solely to the extent
necessary for the Executive to enforce the obligations of the Company or
Subsidiary employing Executive incurred prior thereto.
2. EMPLOYMENT OF EXECUTIVE.
Nothing herein shall affect any right which the Executive or the
Company or a Subsidiary may otherwise have to terminate the Executive's
employment by the Company or a Subsidiary at any time in any lawful manner,
subject always to the Company's providing to the Executive the payments and
benefits specified in paragraphs 3 and 4 of this Agreement to the extent
hereinbelow provided.
In the event any person commences a tender or exchange offer,
circulates a proxy statement to the Company's shareholders or takes other steps
designed to effect a Change in Control of the Company as defined in paragraph 1
of this Agreement, the Executive agrees that the Executive will not voluntarily
leave the employ of the Company or a Subsidiary, and will continue to perform
the Executive's regular duties and to render the services specified in the
recitals of this Agreement, until such person has abandoned or terminated that
person's efforts to effect a Change in Control or until a Change in Control has
occurred, provided that the Executive may voluntarily leave the employ of the
Company or a Subsidiary on or after his Normal Retirement Date or during the
nineteenth full calendar month following the effective date of this agreement.
Should the Executive voluntarily terminate the Executive's employment before any
such effort to effect a Change in Control of the Company has commenced, or after
any such effort has been abandoned or terminated without effecting a Change in
Control and no other such effort is then being undertaken by any other person,
this Agreement shall lapse and be of no further force or effect.
3. TERMINATION FOLLOWING CHANGE IN CONTROL.
(a) If any of the events described in paragraph 1 hereof constituting
a Change in Control of the Company shall have occurred, the Executive shall be
entitled to the benefits provided in paragraph 4 hereof upon the subsequent
termination of the Executive's employment within the applicable period set forth
in paragraph 4 hereof following such Change in Control unless such termination
is (i) due to the Executive's death after the Window Period referred to below or
Retirement (as hereinafter defined)(other than Early Retirement during the
Window Period, as hereinafter defined); or (ii) by the Company or a Subsidiary
by reason of the Executive's Disability or for Cause (as hereinafter defined);
or (iii) by the Executive other than for Good Reason (as hereinafter defined).
(b) If following a Change in Control the Executive's employment is
terminated by reason of the Executive's death after the Window Period,
Retirement (other than Early Retirement during the Window Period) or Disability,
the Executive shall be entitled to death, retirement or disability benefits, as
the case may be, from the Company no less favorable than those benefits to which
the Executive would have been entitled had the death, Retirement or termination
for Disability occurred during the six (6) month period prior to the Change in
Control. If prior to any such termination for Disability, the Executive fails to
perform the Executive's duties as a result of incapacity due to physical or
mental illness, the Executive shall continue to receive the Executive's Base
Salary (as hereinafter defined), less any benefits as may be available to the
Executive under the Company's or Subsidiary's disability plans, until the
Executive's employment is terminated for Disability.
(c) If following a Change in Control the Executive's employment shall
be terminated by the Company or a Subsidiary for Cause or by the Executive other
than for Good Reason, the Company shall pay (subject to any applicable payroll
or other taxes required to be withheld) to the Executive the Executive's Base
Salary through the Date of Termination (as hereinafter defined), and the Company
or a Subsidiary shall have no further obligations to the Executive under this
Agreement. This paragraph 3(c) shall not apply to a termination of the
Executive's employment by the Company or a Subsidiary by reason of Death,
Retirement or Disability.
(d) For purposes of this Agreement:
(i) "Disability" shall mean the Executive's incapacity to perform the
Executive's duties with the Company or Subsidiary on a full-time basis
for one hundred eighty (180) consecutive days due to physical or
mental illness such that the Executive shall have become qualified to
receive benefits under the Company's or a Subsidiary's long-term
disability plans applicable to the Executive. Any question as to the
existence of Disability upon which the Executive and the Company or
Subsidiary cannot agree shall be determined by a qualified independent
physician selected by the Company or Subsidiary employing the
Executive or its insurers and acceptable to the Executive or an adult
member of the Executive's immediate family, which acceptance shall not
be unreasonably withheld. The Executive shall be obligated to submit
to such medical examinations as may be necessary to determine whether
Disability exists.
(ii) "Retirement" shall mean that the Executive shall have reached the
normal retirement date provided in the Company's or Subsidiary's
defined benefit retirement plans applicable to such Executive (the
"Normal Retirement Date") or that the Executive shall have taken early
retirement (as defined in such retirement plans) and shall no longer
be employed by the Company or a Subsidiary ("Early Retirement").
(iii) "Cause" shall mean:
(A) the willful commission by the Executive of an illegal act or
other act of willful misconduct that causes or will probably
cause substantial economic damage to the Company or a Subsidiary
or substantial injury to the business reputation of the Company
or a Subsidiary;
(B) the commission by the Executive of an act of fraud in the
performance of such Executive's duties on behalf of the Company
or a Subsidiary;
(C) the continuing willful failure of the Executive to perform
the duties of such Executive to the Company or a Subsidiary
(other than any such failure resulting from the Executive's
incapacity due to physical or mental illness) after written
notice thereof (specifying the particulars thereof in reasonable
detail) and a reasonable opportunity to be heard and cure such
failure are given to the Executive by the Compensation Committee
of the Board; or
(D) the final order of a federal or state regulatory agency or a
court of competent jurisdiction requiring the termination of the
Executive's employment with the Company or a Subsidiary.
(iv) "Good Reason" shall mean, excluding for this purpose an isolated,
insubstantial and inadvertent action or failure to act, which is not
in bad faith and which is remedied by the Company or applicable
Subsidiary promptly after receipt of notice thereof given by the
Executive:
(A) Without the Executive's express written consent, the
assignment by the Company or a Subsidiary to the Executive of
duties which (i) are materially different or require travel
significantly more time consuming or extensive than the
Executive's duties or business travel obligations immediately
prior to the Change in Control, or (ii) result, without the
Executive's express written consent, in either a significant
reduction in the Executive's authority and responsibility as a
senior executive of the Company or Subsidiary employing the
Executive when compared to the highest level of authority and
responsibility assigned to the Executive at any time during the
six (6) month period prior to the Change in Control, or, (iii)
the removal of the Executive from, or any failure to reappoint or
reelect the Executive to, the highest title held since the date
six (6) months before the Change in Control, except in connection
with a termination of the Executive's employment by the Company
or a Subsidiary for Cause (including during the pendency of any
Dispute), during any period of incapacity due to physical or
mental illness, or by reason of the Executive's death, Disability
or Retirement;
(B) A reduction by the Company or a Subsidiary of the Executive's
Base Salary, or the failure to grant increases in the Executive's
Base Salary on a basis at least substantially comparable to those
granted to other executives of the Company or a Subsidiary of
comparable title, salary grade and performance ratings made in
good faith;
(C) Requiring the Executive to be based anywhere other than an
executive office of the Company or a Subsidiary located in New
Jersey or Pennsylvania within twenty-five (25) geographic (not
road) miles of the location of the Executive's office prior to
the Change in Control, except for required travel on the
Company's or a Subsidiary's business to an extent substantially
consistent with the Executive's present business travel
obligations, without the Executive's express written consent, or
in the event of any relocation of the Executive with the
Executive's express written consent, the failure by the Company
or a Subsidiary to pay (or reimburse the Executive for) all
reasonable moving expenses by the Executive relating to a change
of principal residence in connection with such relocation and to
indemnify the Executive against any loss realized in the sale of
the Executive's principal residence in connection with any such
change of residence, all to the effect that the Executive shall
incur no loss on an after tax basis;
(D) The failure by the Company or a Subsidiary to continue to
provide the Executive with substantially the same welfare
benefits and perquisites, including participation on a comparable
basis in the Company's or a Subsidiary's retirement plans,
Incentive Bonus Plan (cash bonus plan), Savings Incentive Plan,
Incentive Stock and Option Plans, Executive Severance Plan and
other plans in which executives of the Company or a Subsidiary of
comparable title and salary grade participate, as were provided
to the Executive in the twelve (12) months immediately prior to
such Change in Control of the Company, or with a package of
welfare benefits and perquisites, that, though one or more of
such benefits or perquisites may vary from those set forth above,
is substantially comparable in all material respects to such
welfare benefits and perquisites, taken as a whole;
(E) The failure of the Company to obtain the express written
assumption of and agreement to perform this Agreement by any
successor as contemplated in subparagraph 6(c) hereof;
(F) A termination of employment by the Executive for any reason
other than Disability or Retirement on or after Executive's
Normal Retirement Date during the thirty (30) day period
immediately following the first anniversary of a Change in
Control of the Company defined in subparagraphs 1(a)(i), (ii)
(iii) or (iv) or the consummation of a transaction described in
subparagraphs 1(a)(v) or (vi) (such thirty (30) day period being
referred to herein as the "Window Period").
(G) The giving by the Company or applicable Subsidiary of a
notice that participation by the Executive in the Company's
Executive Severance Plan or that the Executive's Termination
Agreement would not be renewed;
(H) The filing by the Company of a petition for bankruptcy or
similar insolvency of the Company or the filing by any other
party of such a petition which is not dismissed within sixty (60)
days; or
(I) Any failure by the Company or applicable Subsidiary to comply
with any provision of this Agreement with respect to Executive.
(v) "Dispute" shall mean (A) in the case of termination of employment
of the Executive with the Company or a Subsidiary by the Company or a
Subsidiary for Disability or Cause, that the Executive challenges the
existence of Disability or Cause and (B) in the case of termination of
employment of an Executive with the Company or a Subsidiary by the
Executive for Good Reason, that the Company or a Subsidiary challenges
the existence of Good Reason.
(vi) "Base Salary" shall mean the amount determined by multiplying the
Executive's highest semi-monthly or other periodic rate of base pay
paid to the Executive at any time during the period commencing twelve
(12) months prior to the Change of Control and ending on the date of
Notice of Termination by the number of pay periods per year. The
following items are not part of base pay, as used herein: reimbursed
expenses, any amount paid on account of overtime or holiday work,
payments on account of insurance premiums or other contributions made
to other welfare or benefit plans, and any year-end or other bonuses,
commissions and gifts.
(vii) "Bonus Amount" means the highest annual cash incentive bonus
earned by the Executive from the Company or a Subsidiary during the
last three (3) completed fiscal years of the Company immediately
preceding the Executive's Date of Termination (annualized in the event
the Executive was not employed by the Company or a Subsidiary for the
whole of any such fiscal year).
For purposes of this subparagraph (d), no act, or failure to act, on
the Executive's part shall be considered "willful" unless done, or omitted to be
done, by the Executive not in good faith and without reasonable belief that the
Executive's action or omission was in the best interests of the Company or a
Subsidiary.
(e) Any purported termination of employment by the Company or a
Subsidiary or by the Executive shall be communicated by written Notice of
Termination to the other party. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice given by the Executive or the Company or a
Subsidiary, as the case may be, which shall indicate the specific provision of
this Agreement applicable to such termination and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for determination
of any payments under this Agreement. The Executive shall not be entitled to
give a Notice of Termination that the Executive is terminating the Executive's
employment with the Company or a Subsidiary for Good Reason more than six (6)
months following the occurrence of the event alleged to constitute Good Reason.
(f) For purposes of this Agreement, except as provided below, the
"Date of Termination" shall mean the date specified in a Notice of Termination,
which shall be not more than ninety (90) days after such Notice of Termination
is given. The Date of Termination of a proposed Termination for Disability shall
be at least thirty (30) days after the giving of the Notice of Termination.
If within thirty (30) days after any Notice of Termination is given, the
party who receives such Notice of Termination notifies the other party that a
Dispute exists, the Date of Termination shall be the date on which the Dispute
is finally determined, either by mutual written agreement of the parties, or by
a final judgment, order or decree of a court of competent jurisdiction (the time
for appeal therefrom having expired and no appeal having been perfected);
provided that the Date of Termination shall be extended by a notice of Dispute
only if such notice is given in good faith and the party giving such notice
pursues the resolution of such Dispute with reasonable diligence and provided
further that pending the resolution of any such Dispute, the Company or a
Subsidiary shall continue to pay the Executive the same Base Salary and to
provide the Executive with the same or substantially comparable employee
benefits and perquisites, including participation in the Company's or a
Subsidiary's retirement plans, Savings Incentive Plan, Incentive Bonus Plan,
Incentive Stock and Option Plans and Executive Severance Plan that the Executive
was paid and provided at any time during the period commencing twelve (12)
months prior to the Change of Control and ending on the date of Notice of
Termination
Should it ultimately be determined that a challenged termination by the
Company or a Subsidiary by reason of the Executive's Disability or for Cause was
justified, or that a challenged termination by the Executive for Good Reason was
not justified, then the Executive shall promptly pay the Company or a Subsidiary
(as the case may be) an amount equal to all sums paid by the Company or a
Subsidiary to the Executive from the date of termination specified in the Notice
of Termination until final resolution of the Dispute pursuant hereto, with
interest at the base rate charged from time to time by Summit Bank, New Jersey,
all options, rights and restricted stock granted to the Executive during such
period shall be canceled or returned to the Company or Subsidiary, and, to the
extent permitted by law, no service as an employee shall be credited to the
Executive for such period for pension purposes. The Executive shall not be
obligated to pay to the Company or a Subsidiary the cost of providing the
Executive with employee benefits and perquisites for such period (which cost for
purposes of health plans means the applicable premium under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended) unless the final
judgment, order or decree of a court resolving the Dispute determines that the
Executive acted in bad faith in giving a notice of Dispute.
Should it ultimately be determined that a challenged termination by the
Company or a Subsidiary by reason of the Executive's Disability or for Cause was
not justified, or that a challenged termination by the Executive for Good Reason
was justified, then the Executive shall be entitled to retain all sums paid to
the Executive pending resolution of the Dispute and shall be entitled to
receive, in addition, the payments and other benefits provided for in paragraph
4 hereof.
4. PAYMENTS AND BENEFITS UPON TERMINATION.
If within three (3) years after a Change in Control of the Company,
there occurs a termination of employment of the Executive with the Company or a
Subsidiary, other than a termination of employment which is (i) due to the
Executive's death after the Window Period or Retirement other than Early
Retirement during the Window Period; or (ii) by the Company or a Subsidiary by
reason of the Executive's Disability or for Cause; or (iii) by the Executive
other than for Good Reason, then, and expressly on the condition that the
Company or Subsidiary employing the Executive receive on the Date of Termination
a Release, Covenant Not to Xxx, Non-Disclosure and Non-Solicitation Agreement
executed by the Executive (or the Executive's legal representative, in the event
of the death or Disability of the Executive), in the form set forth in Exhibit A
to this Agreement (the "Release Agreement"), and that such Release Agreement be
effective:
(a) The Company or a Subsidiary will pay to the Executive as
compensation for services rendered, promptly following the effective date of the
Release Agreement, a lump sum cash amount (subject to any applicable payroll or
other taxes required to be withheld computed at the rate for supplemental
payments) equal to (X) the sum of (i) three (3) times the Executive's Base
Salary, plus (ii) three (3) times the Executive's Bonus Amount, less (Y) the
aggregate lump sum cash severance amount in respect of base salary and bonus
pursuant to subparagraphs 5(a)(i) and (v) of the Company's Executive Severance
Plan (or any successor provision) payable to the Executive upon termination of
employment, delivery by the Executive of the Release, Covenant Not to Xxx,
Non-Disclosure and Non-Solicitation Agreement referred to therein, and the
expiration of all periods during which the Executive may revoke any release of
claims in such agreement.
(b) The Executive will be entitled to receive "Special Retirement
Benefits" as provided herein, so that the total retirement benefits the
Executive receives from the Company will approximate the total retirement
benefits the Executive would have received under all defined benefit retirement
plans (which may include non-qualified, supplemental and excess benefits
retirement plans but shall not include severance plans) and other employment
contracts of the Company and its Subsidiaries in which the Executive
participates were the Executive fully vested under such retirement plans and
entitled to all benefits payable under such other employment contracts and had
the Executive continued in the employ of the Company or a Subsidiary for one
hundred twenty (120) months following the Date of Termination or until the
Executive's Normal Retirement Date, if earlier (provided that such additional
period shall be inclusive of and shall not be in addition to any period of
service credited under any severance plan of the Company or a Subsidiary). The
benefits specified in this subparagraph will include all ancillary benefits,
such as early retirement and survivor rights. The amount payable to the
Executive or the Executive's beneficiaries under this subparagraph shall equal
the excess of (1) the retirement benefits that would be paid to the Executive or
the Executive's beneficiaries, under all retirement plans and other employment
contracts of the Company and its Subsidiaries in which the Executive
participates if (A) the Executive were fully vested under such plans and
entitled to all benefits payable under such other employment contracts, (B) the
one hundred twenty (120) month period (or the period until the Executive's
Normal Retirement Date, if less) following the Date of Termination were added to
the Executive's credited service under such plans and contracts, (C) the terms
of such plans and the policies and procedures by which such plans were
administered were those most favorable to the Executive which were in effect at
any time during the period commencing twelve (12) months prior to the Change of
Control and ending on the date of Notice of Termination, and (D) the Executive's
highest average annual base salary as defined under such retirement plans and
other employment contracts and any cash bonus which under the terms of such plan
or contract is used to calculate benefits thereunder were calculated as if the
Executive had been employed by the Company or a Subsidiary for a one hundred and
twenty (120) month period (or the period until the Executive's Normal Retirement
Date, if earlier) following the Date of Termination and had the Executive's
salary and cash bonus during such period been equal to the Executive's Base
Salary and Bonus Amount; over (2) the retirement benefits that are payable to
the Executive or the Executive's beneficiaries under all retirement plans and
other employment contracts of the Company and its Subsidiary in which the
Executive participates. These Special Retirement Benefits are provided on an
unfunded basis, are not intended to meet the qualification requirements of
Section 401 of the Internal Revenue Code of 1986, as amended (the "Code"), and
shall be payable solely from the general assets of the Company. These Special
Retirement Benefits shall be payable at the times and in the manner provided in
the applicable retirement plans and other employment contracts to which they
relate, or at the election of the Executive they shall be paid in a lump sum
actuarial equivalent utilizing the actuarial assumptions of the defined benefit
pension plan applicable to the Executive.
(c)(i) As used herein, "Welfare Plans" shall mean the medical, dental,
vision, life, dependent life, personal accident, employee banking services, and
educational matching gift plans of the Company or a Subsidiary in which the
Executive was participating at the Date of Termination, and shall not include
disability, tuition reimbursement, medical and dependent care spending plans,
and business travel accident plans. The Executive will remain an active
participant in all Welfare Plans with the Executive's Base Salary used as the
basis for determining the level of benefits, for a period of thirty-six (36)
months after the Date of Termination or until the Participant's Normal
Retirement Date, if earlier; provided, however, that if employee contributions
are generally required by any such plan the Executive pays to the Company or
Subsidiary an amount equal to the required contribution, if any, which such
plans provide are to be made by employees of status and seniority comparable to
the status and seniority of the Executive at the Date of Termination, which
amounts shall be paid by the Executive at the time or times required by such
plans for employee contributions, and further provided, that the benefits
provided shall be reduced by any benefits provided under post-retirement benefit
programs (such as retiree life insurance) of the Company or a Subsidiary. In the
event applicable law or the terms of any such Welfare Plan do not permit
continued participation by the Executive, then the Company or a Subsidiary will
arrange to provide the Executive with benefits substantially similar to and no
less favorable than the benefits the Executive was entitled to receive under
such Welfare Plan at any time during the period commencing twelve (12) months
prior to the Change of Control and ending on the date of Notice of Termination
for a period terminating thirty-six (36) months after the Date of Termination;
provided, however, that if employee contributions are generally required by any
such plan the Executive pays to the Company or Subsidiary an amount equal to the
required contribution, if any, which such plans provide are to be made by
employees of status and seniority comparable to the status and seniority of the
Executive at the Date of Termination, which amounts shall be paid by the
Executive at the time or times required by such plans for employee
contributions.
(ii) In lieu of continued participation in the Company or a
Subsidiary's disability plans, in the event that the Executive becomes disabled
during the period of participation in Welfare Plans provided for herein, as
determined by approval for disability benefits under the federal Social Security
program, the Company or Subsidiary shall make direct payments to the Executive
commencing upon termination of participation in the Welfare Plans hereunder and
under any Severance Plan and during the continuation of such disability, as
determined under the federal Social Security program of the amounts and for the
periods the Executive would have received benefits under the Company or
Subsidiary's long-term disability plan (after taking into account any offsets to
income under such plan) as if the Executive had qualified for long-term
disability payments under the Company or Subsidiary's long-term disability plan
immediately prior to the Date of Termination.
(iii) The continuation of welfare benefits provided by this
subparagraph 4(c) shall be inclusive of any period of welfare benefits
continuation provided by any severance plan or other contract of the Company or
a Subsidiary, it being the intention of the parties that the Executive shall
receive continuation of welfare benefits for the longest period provided by any
severance plan or contract and this Agreement, not the sum of the periods
provided in various severance plans and contracts and this Agreement.
(iv) If any benefits provided hereunder are provided outside of a
Welfare Plan and would have been tax-exempt or tax-favored to the Executive if
provided under a Welfare Plan, the Company or Subsidiary shall make additional
payments to the Executive in reimbursement of taxes in order to put the
Executive in the same after tax position as if the benefits had been provided
under a Welfare Plan.
(v) In the event the Executive becomes employed with another
employer and becomes eligible to receive welfare benefits under plans provided
by such employer, the welfare benefits provided hereunder shall be secondary to
those provided under such other plans.
(vi) After the Date of Termination the Executive may also
participate in those post-retirement benefit programs under which the Executive
meets the qualifications, which qualifications may include contributions by the
Executive and appropriate elections at the Date of Termination.
5. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) In the event that any payment or benefit received or to be
received by the Executive pursuant to the terms of this Agreement (the "Contract
Payments") or of any other plan, arrangement or agreement of the Company (or any
affiliate) ("Other Payments" and, together with the Contract Payments, the
"Payments") would, in the opinion of independent tax counsel selected by the
Company and reasonably acceptable to the Executive ("Tax Counsel"), be subject
to the excise tax (the "Excise Tax") imposed by section 4999 of the Code (in
whole or in part), as determined as provided below, then, unless subparagraph
5(e) below is applicable, the Company shall pay to the Executive, at the time
specified in subparagraph 5(b) hereof, an additional amount (the "Offset
Payment") such that the net amount retained by the Executive, after deduction of
the Excise Tax on the Payments and any federal, state and local income tax and
Excise Tax upon the payment provided for by this subparagraph 5(a), and any
interest, penalties or additions to tax payable by the Executive with respect
thereto, shall be equal to the total present value of the Contract Payments and
Other Payments at the time such Payments are to be made. For purposes of
determining whether any of the Payments will be subject to the Excise Tax and
the amounts of such Excise Tax, (1) the total amount of the Payments shall be
treated as "parachute payments" within the meaning of section 280G(b)(2) of the
Code, and all "excess parachute payments" within the meaning of section
280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to
the extent that, in the opinion of Tax Counsel, a Payment (in whole or in part)
does not constitute a "parachute payment" within the meaning of section
280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in
part) are not subject to the Excise Tax, (2) the amount of the Payments that
shall be treated as subject to the Excise Tax shall be equal to the lesser of
(A) the total amount of the Payments or (B) the amount of "excess parachute
payments" within the meaning of section 280G(b)(1) of the Code (after applying
clause (1) hereof), and (3) the value of any noncash benefits or any deferred
payment or benefit shall be determined by Tax Counsel in accordance with the
principles of sections 280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Offset Payment, the Executive shall be deemed to
pay federal income taxes at the highest marginal rates of federal income
taxation applicable to individuals in the calendar year in which the Offset
Payment is to be made and state and local income taxes at the highest marginal
rates of taxation applicable to individuals as are in effect in the state and
locality of the Executive's residence in the calendar year in which the Offset
Payment is to be made, net of the maximum reduction in federal income taxes that
can be obtained from deduction of such state and local taxes, taking into
account any limitations applicable to individuals subject to federal income tax
at the highest marginal rates.
(b) The Offset Payments provided for in subparagraph 5(a) hereof shall
be made upon the earlier of (i) the payment to the Executive of any Contract
Payment or Other Payment or (ii) the imposition upon the Executive or payment by
the Executive of any Excise Tax.
(c) If it is established pursuant to a final determination of a court
or an Internal Revenue Service proceeding or the opinion of Tax Counsel that the
Excise Tax is less than the amount taken into account under subparagraph 5(a)
hereof, the Executive shall repay to the Company within five days of the
Executive's receipt of notice of such final determination or opinion the portion
of the Offset Payment attributable to such reduction (plus the portion of the
Offset Payment attributable to the Excise Tax and federal, state and local
income tax imposed on the Offset Payment being repaid by the Executive if such
repayment results in a reduction in Excise Tax or a federal, state and local
income tax deduction) plus any interest received by the Executive from the
taxing authorities on the amount of such repayment. If it is established
pursuant to a final determination of a court or an Internal Revenue Service
proceeding or the opinion of Tax Counsel that the Excise Tax exceeds the amount
taken into account hereunder (including by reason of any payment the existence
or amount of which cannot be determined at the time of the Offset Payment), the
Company shall make an additional Offset Payment in respect of such excess within
five days of the Company's receipt of notice of such final determination or
opinion.
(d) In the event of any change in, or further interpretation of,
sections 280G or 4999 of the Code and the regulations promulgated thereunder
subsequent to a Change in Control, the Executive shall be entitled, by written
notice to the Company, to request an opinion of Tax Counsel regarding the
application of such change to any of the foregoing, and the Company shall use
its best efforts to cause such opinion to be rendered as promptly as
practicable. All fees and expenses of Tax Counsel incurred in connection with
this Agreement shall be borne by the Company.
(e) If in the opinion of Tax Counsel the Company would not be required
to make an Offset Payment if the Payments to the Executive that would be treated
as "parachute payments" under Section 280G of the Code were reduced by up to
$50,000, then the amounts payable to the Executive under this Agreement shall be
reduced (but not below zero) to the maximum amount that could be paid to the
Executive without giving rise to the Excise Tax (the "Safe Harbor Cap") and no
Offset Payment shall be required to be made to the Executive. The reduction of
the amounts payable under this Agreement, if applicable, shall be made by
reducing first the payments under paragraph 4(a) above, unless an alternative
method of reduction is elected by the Executive. For purposes of reducing the
Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and
no other Payments) shall be reduced. If the reduction of the amounts payable
hereunder by an amount not exceeding $50,000 would not result in a reduction of
the Payments to the Safe Harbor Cap, no amounts payable under this Agreement
shall be reduced pursuant to this provision.
6. GENERAL.
(a) The Company or a Subsidiary shall pay promptly as incurred the
Executive's reasonable attorney's fees and expenses incurred in good faith by
the Executive as a result of any dispute (regardless of the outcome thereof)
with the Company or a Subsidiary or any other party regarding the validity or
enforceability of, or liability under, any provision of this Agreement or the
act of any party thereunder or any guarantee of performance thereof and pay
prejudgment interest on any delayed payment to the Executive calculated at the
Summit Bank, New Jersey base rate of interest in effect from time to time from
the date that payment should have been made under this Agreement; provided,
however, that the Executive shall not have been found by the court to have acted
in bad faith. Any finding of bad faith must be final with the time to appeal
therefrom having expired and no appeal having been perfected.
(b) The Company's obligation to pay the Executive (or the Executive's
dependents, beneficiaries or estate) the compensation and to make the
arrangements provided herein shall be absolute and unconditional and shall not
be affected by any circumstance, including, without limitation, any set off,
counterclaim, recoupment, defense or other right which the Company may have
against the Executive or anyone else. All amounts payable by the Company
hereunder shall be paid without notice or demand. Except as expressly provided
herein, the Company waives all rights which it may now have or may hereafter
have conferred upon it, by statute or otherwise, to terminate, cancel or rescind
this Agreement in whole or in part. Except as provided in paragraphs 3(f) and
5(c) herein, each and every payment made hereunder by the Company shall be final
and the Company will not seek to recover for any reason all or any part of such
payment from the Executive or any person entitled thereto. The Executive shall
not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by written
agreement to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this
paragraph 6 or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
(d) This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amounts would still be payable to the Executive hereunder if the
Executive had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee or other designee or, if there be no such designee,
to the Executive's estate. The obligations of the Executive hereunder shall not
be assignable by the Executive.
(e) The Executive's rights under this Agreement shall be
non-transferable except by will or by the laws of descent and distribution and
except insofar as applicable law may otherwise require. Subject to the
foregoing, no right, benefit or interest hereunder shall be subject to
anticipation, alienation, sale, assignment, encumbrance, charge, pledge,
hypothecation or set-off in respect of any claim, debt or obligation, or to
execution, attachment, levy or similar process, or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall,
to the full extent permitted by law, be null, void and of no effect.
7. NOTICE.
For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, or if delivered
personally or by courier, receipt requested, or by facsimile transmission,
receipt acknowledged, addressed as follows:
If to the Executive:
Xxxxx X. Xxxxx
If to the Company:
Summit Bancorp.
301 Carnegie Center
X.X. Xxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Secretary to the Board
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
8. MISCELLANEOUS.
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing, signed by
the Executive and such officer as may be specifically designated by the Board.
No waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time. No assurances or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which
are not set forth expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the law of
the State of New Jersey.
9. FINANCING.
All amounts due and benefits provided under this Agreement shall
constitute general obligations of the Company or Subsidiary employing the
Executive in accordance with the terms of this Agreement. The Executive shall
have only an unsecured right to payment thereof out of the general assets of the
Company or such Subsidiary. Notwithstanding the foregoing, the Company or such
Subsidiary may, by agreement with one or more trustees to be selected by the
Company or such Subsidiary, create a trust on such terms as the Company or such
Subsidiary shall determine to make payments to the Executive in accordance with
the terms of this Agreement.
10. VALIDITY.
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect. Any provision in this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating or affecting the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
11. SUPERSEDEAS.
While this Agreement is in addition to and not in lieu of any other plan
providing for payments to or benefits for the Executive or any agreement now
existing or which hereafter may be entered into between the Company and the
Executive, this Agreement supersedes all prior agreements and understandings of
the parties hereto with respect to the Company's severance obligations to the
Executive and any other similar payments to the Executive due upon termination
of employment other than those agreements and understandings contained in the
Company's Executive Severance Plan or specifically provided for in any
employment contract between the Company and the Executive. This agreement
supersedes the Employment Agreement between Prime Bancorp, Inc. and Executive
dated December 18, 1995, as amended June 17, 1999, other than the terms of such
agreement relating to your stock options, and any other agreements and
understandings relating to the employment contracts with or severance benefits
payable by Prime Bancorp, Inc. or Prime Bank, which, except as aforesaid, are
hereby canceled and null and void as of the effective date of this Agreement.
The merger of Prime Bancorp, Inc. with First Valley does not constitute a Change
in Control for the purposes of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date set forth above.
SUMMIT BANCORP. EXECUTIVE
By:/s/ Xxxxxxx X. Xxxx, Xx. /s/ Xxxxx X. Xxxxx
---------------------- ---------------
Xxxxxxx X. Xxxx, Xx., Secretary Xxxxx X. Xxxxx
EXHIBIT A
RELEASE, COVENANT NOT TO XXX,
NON-DISCLOSURE AND NON-SOLICITATION
AGREEMENT
This RELEASE, COVENANT NOT TO XXX, NON-DISCLOSURE AND NON- SOLICITATION
AGREEMENT (the "AGREEMENT") dated as of_________ among (1)
______________("Executive"), and (2) Summit Bancorp. and all parent and
subsidiary corporations, partnerships and other entities and affiliates
controlled by, controlling or under common control with Summit Bancorp.
(together with any predecessor and successor entities hereinafter being
collectively referred to as "SUB") sets forth the agreements of the parties
hereto with regard to the matters set forth herein:
1. Background. Executive is an Executive of SUB and
participates in SUB's Executive Severance Plan pursuant to a
Participation Letter dated ______________ and a party to a
Termination Agreement dated ________________ [as last amended
_____________](the Plan and the Letter and Agreement, as amended
from time to time, together being collectively referred to as the
"Contracts"). Any capitalized terms used but not defined herein
shall have the meaning set forth in the applicable Contract.
1. A Change of Control [has/has NOT] occurred [on (date)]. If a Change of
Control has NOT occurred, Executive is not entitled to any benefits
under the Termination Agreement.
2. Executive's employment with SUB will or has terminated on
______________, which shall be the Date of Termination for purposes of
the Contracts, notwithstanding any failure to adhere to the provisions
for giving a Notice of Termination and the method of determining the
Date of Termination set forth in the Contracts, any such failures
being hereby waived by the parties.
3. This termination shall constitute a termination "[for cause/
disability /retirement /other than for cause /by mutual agreement]"
for purposes of any stock options and restricted stock which Executive
holds, and the Termination Date shall be the termination date for the
purposes of such options. Attached hereto as Appendix A is a list of
all outstanding SUB options held by Executive on the date hereof.
2. Payment. Executive shall receive within two business days
following the EFFECTIVE DATE (as defined in paragraph 7 hereof)
$_____________, the gross amount due to Executive under the
Contracts, which shall be paid to Executive as $_________________
by check or deposit in Executive's bank account, with the balance
withheld in respect of federal, state and local taxes and
benefits contributions, which Executive acknowledges represents
all amounts currently due Executive under the Contracts.
Executive acknowledges and agrees that Executive is not entitled
to any severance payments under any other severance program of
SUB, the Contracts being intended to substitute for any such
other severance program. SUB continues to be obligated to
provide certain welfare and pension benefits and perquisites, as
more fully set forth in the Contracts.
3. Restrictive Covenants. In consideration of the payments to
Executive as specified in paragraph 2 above, Executive agrees as
follows:
a. Non-Competition with SUB. The parties recognize that
Executive is an important officer of SUB, that his
reputation and business and personal relationships are
of significant benefit to SUB, and a consideration in
the price paid to acquire the bank holding company of
which Executive was Chief Executive Officer, and that
he has access to information about SUB's plans and
projections as well as other confidential information.
The parties further agree that SUB is in direct
competition with certain banks and bank holding
companies and thrift institutions and their affiliates
and the Executive agrees that, for a period of two (2)
years from the date hereof, he will not accept
employment or serve in any capacity with any bank,
savings bank or savings and loan association the
deposits or accounts or shares of which are insured by
the Federal Deposit Insurance Corporation or credit
union the deposits or accounts or shares of which are
insured by the National Credit Union Administration or
any holding company for such bank, savings bank,
savings and loan association or credit union or other
entity controlling, controlled by or under common
control with such financial institution at a principal
place of employment within 25 miles of any office of
SUB or any entity controlling, controlled by or under
common control with SUB open to the public at the time
of this Agreement.
b. Non-Solicitation of SUB Employees. For a period of
five (5) years from the date hereof, Executive will not
solicit or induce any person who is an employee of SUB
or was such at any time within three months prior to
the date hereof to become employed by any other person,
firm or corporation or approach any such employee for
such purpose or authorize or knowingly approve the
taking of such actions by other persons, without the
prior written consent of SUB.
c. Non-Disclosure of Proprietary Information. Executive
acknowledges that during the course of Executive's
employment with SUB Executive received, obtained or
became aware of or had access to proprietary
information, lists and records of customers and trade
secrets which are the property of SUB and which are not
known by competitors or generally by the public
("Proprietary Information") and recognizes such
Proprietary Information to be valuable and unique
assets of SUB. For purposes of this subparagraph: (i)
Proprietary Information is deemed to include, without
limitation, (A) marketing materials, marketing manuals,
policy manuals, procedure manuals, policy and procedure
manuals, operating manuals and procedures and product
documentation, (B) all information about pricing,
products, procedures, practices, business methods,
systems, plans, strategies or personnel of SUB, (C)
circumstances surrounding the relationships with,
knowledge of, or information about the customers,
clients, and accounts of SUB, including but not limited
to the identity of current active customers or
prospects who have been contacted by SUB, the
expiration dates and other terms of loans or deposit or
other banking relationships, details or special product
provisions or special combinations of products, or
special prices, and (D) all other information about SUB
which has not been disclosed in documents filed with
the U.S. Securities and Exchange Commission or
otherwise publicly disseminated by SUB, whether or not
that information is recorded and notwithstanding the
method of recordation, if any; and (ii) Proprietary
Information is deemed to exclude all information
legally in the public domain. Executive agrees to hold
the Proprietary Information in the strictest confidence
and agrees not to use or disclose any Proprietary
Information, directly or indirectly, at any time for
any purpose, without the prior written consent of SUB
or to use for Executive's benefit or the benefit of any
person, firm, corporation or other entity (other than
SUB), any Proprietary Information, and to use
Executive's best efforts to prevent such prohibited use
or disclosure by any other persons. Executive has
returned all Proprietary Information in Executive's
possession or control to SUB.
d. Cooperation, No Detrimental Actions. Executive will
cooperate with SUB in enforcing its claims against
customers and former customers of SUB, including
appearing as a witness for SUB in court or
administrative proceedings, subject to reasonable
reimbursement for Executive's time and expenses.
Executive will not take actions or make disparaging
statements which are detrimental to SUB or the
RELEASEES, as defined in paragraph 5 below.
e. Remedies. Executive hereby acknowledges that
Executive's duties and responsibilities under this
paragraph 3 are unique and extraordinary and that
irreparable injury may result to SUB in the event of a
breach of the terms and conditions of this paragraph 3,
which may be difficult to ascertain, and that the award
of damages would not be adequate relief to SUB and the
RELEASEES. Executive therefore agrees that in the
event of Executive's breach of any of the terms or
conditions of this paragraph 3, SUB shall have the
right, without posting any bond or other security, to
preliminary and permanent injunctive relief as well as
damages and an equitable accounting of all earnings,
profits and other benefits arising from such violation,
which rights shall be cumulative and in addition to any
other rights or remedies in law or equity to which SUB
may be entitled against Executive. The covenants of
Executive in paragraphs 3a, 3b, 3c and 3d of this
Agreement shall each be construed as an agreement
independent of any other provision in this AGREEMENT,
and the existence of any claim or cause of action of
Executive against SUB, whether predicated on this
Agreement or otherwise, shall not constitute a defense
to the enforcement by SUB of paragraphs 3a, 3b, 3c and
3d.
f. Enforcement. If at the time of the enforcement of subparagraphs 3a,
3b, 3c, 3d or 3e above a court shall hold that the period or scope of
the provisions thereof are unreasonable under the circumstances then
existing, the parties hereby agree that the maximum period or scope
under the circumstances shall be substituted for the period or scope
stated in those subparagraphs.
4. Short-Swing Securities Profits. Executive acknowledges that Executive will
remain subject to the short-swing liability provisions of Section 16 of the
federal Securities Exchange Act of 1934 for six months following
termination of employment.
5. Release. In consideration of the payments to Executive as specified in
paragraph 2 above, Executive grants SUB a RELEASE of only all claims, both
known and unknown, that Executive may have that relate to the termination
of Executive's employment (hereafter a "WRONGFUL TERMINATION CLAIM"). The
Executive and SUB agree that a WRONGFUL TERMINATION CLAIM, specifically and
without limitation, does not include claims:
1. for indemnification as a corporate agent of SUB against
claims by third parties;
2. under employee benefit plans, including supplemental employee
retirement plans, maintained by SUB or any of the predecessor
organizations thereof, including but not limited to rights under any
workers compensation program, Section 502(a) of the Employee
Retirement Income Security Act, as amended, 29 U.S.C. 1001 et seq.,
and under the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA");
3. arising out of enforcement of the Contracts or this
Agreement by Executive; or
4. constituting cross-claims against SUB as a result of claims brought by
unaffiliated third parties against Executive based on Executive's
service as an executive of SUB.
The statutes which could form the basis for a WRONGFUL TERMINATION CLAIM
include, but are not limited to, Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. 1971 et seq.; the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. 621 et seq.; Section 510 of the Employee
Retirement Income Security Act of 1974, as amended, 29 U.S.C. 1001 et seq.;
the Americans With Disabilities Act, as amended, 42 U.S.C. 12101 et seq.;
the Older Workers Benefit Protection Act, as amended, 29 U.S.C. 621 et
seq.; the Civil Rights Act of 1866, as amended, 42 U.S.C. 1981 et seq.; the
New Jersey Law Against Discrimination, as amended, N.J.S.A. 10:5-1 et seq.;
the New Jersey Conscientious Employee Protection Act, as amended, N.J.S.A.
34:19-1 et seq.; the New York Human Rights Law, Executive Law 290 et seq.;
the Pennsylvania Human Relations Act, as amended, 43 P.S. 951 et seq.; and
the Pennsylvania Whistleblower Law, as amended, 43 P.S. 1421 et seq. The
common law (non-statutory) theories under which a WRONGFUL TERMINATION
CLAIM could be made include, but are not limited to, breach of an express
employment contract, breach of a contract implied from a personnel handbook
or manual, or commission of a civil wrong (known as a "tort") resulting in
Executive's termination, or for alleged violation of the public policy of
the United States or any state. Granting a RELEASE of any WRONGFUL
TERMINATION CLAIM pursuant to this AGREEMENT means that on behalf of
Executive and all who succeed to Executive's rights and responsibilities,
Executive releases and gives up only any and all WRONGFUL TERMINATION
CLAIMS that Executive may have against SUB, and any of its subsidiaries,
affiliates or divisions, and all of their directors, officers,
representatives, shareholders, agents, employees, and all who succeed to
their rights and responsibilities (collectively referred to as "RELEASEES".
With respect to any charges filed concerning events or actions relating to
a WRONGFUL TERMINATION CLAIM that occurred on or before the date of this
AGREEMENT or Executive's Termination Date (whichever is later), Executive
waives and releases any right that Executive may have to recover in any
lawsuit or proceeding brought by Executive or by an administrative agency
on Executive's behalf against the RELEASEES.
6. Covenant Not to Xxx. Executive covenants not to xxx the
RELEASEES over any WRONGFUL TERMINATION CLAIM. Such a covenant
not to xxx the RELEASEES means that Executive represents that
Executive has not through the date of execution of this Agreement
filed a WRONGFUL TERMINATION CLAIM, charge or lawsuit with any
court or government agency against the RELEASEES, and that
Executive will not file such a lawsuit subsequent to execution of
this Agreement. Executive also waives any right to become, and
promises not to become, a member of any class in a case in which
WRONGFUL TERMINATION CLAIMS are asserted against any of the
RELEASEES.
7. Review Period. Executive acknowledges that Executive has up
to 21 days to review this AGREEMENT, and was advised to review it
with an attorney of Executive's choice. Executive also
acknowledges that Executive was further advised that Executive
has seven days after Executive signs this AGREEMENT to revoke it
by notifying SUB in writing, of such revocation as set forth
under Notices below. This AGREEMENT shall become effective on
the tenth (10th) day following its execution by Executive (the
"EFFECTIVE DATE"), unless revoked in accordance with the preceding
sentence.
8. Revocation of Authority. Executive agrees and acknowledges
that as of the Termination Date Executive shall no longer be
empowered to bind SUB in any agreement, whether verbal or
written, and that Executive shall have no authority to execute
any documents, deeds, leases, or other contracts on behalf of
SUB. To the extent not effected by termination of Executive
under the Contracts, Executive resigns from all offices and
positions with SUB.
9. Successors and Assigns. All rights and duties of SUB under this Agreement
shall be binding on and inure to the benefit of SUB, its successors and
assigns. All rights of Executive hereunder shall be binding upon and inure
to the benefit of Executive's personal or legal representatives.
10. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed
to have been duly given if delivered personally with receipt
acknowledged or sent by registered or certified mail, postage
prepaid or by reputable national overnight delivery service, to
the addresses shown below, unless changed by notices given as
herein provided, except that notice of change of address only
shall be effective upon actual receipt:
If to SUB, to:
Summit Bancorp.
000 Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Executive Vice President of
Human Resources
With a copy to:
Summit Bancorp.
000 Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: General Counsel
If to the Executive, to:
With a copy to:
11. Covenant Not to Challenge Enforceability. Both Executive and SUB understand
that this AGREEMENT is final and binding when executed by both parties,
subject to paragraph 7 above, and both agree not to thereafter challenge
its enforceability.
12. Applicable Law. This AGREEMENT shall be deemed to have been made within the
State of New Jersey, and it shall be interpreted, construed, and enforced
in accordance with the law of the State of New Jersey, and before the
Courts of the State of New Jersey.
13. Amendments, Modifications, Waivers. This AGREEMENT cannot be amended or
modified except by a written document signed by both SUB and Executive and
no provision can be waived except by a written document signed by the
waiving party.
14. By signing this AGREEMENT, Executive acknowledges:
1. EXECUTIVE HAS READ THIS AGREEMENT COMPLETELY.
2. EXECUTIVE HAS HAD AN OPPORTUNITY TO CONSIDER THE TERMS OF THIS
AGREEMENT.
3. EXECUTIVE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY OF EXECUTIVE'S
CHOOSING PRIOR TO EXECUTING THIS AGREEMENT.
4. EXECUTIVE KNOWS THAT EXECUTIVE MAY BE GIVING UP IMPORTANT LEGAL RIGHTS
BY SIGNING THIS AGREEMENT.
5. EXECUTIVE UNDERSTANDS AND MEANS EVERYTHING THAT EXECUTIVE HAS SAID IN
THIS AGREEMENT, AND EXECUTIVE AGREES TO ALL ITS TERMS.
6. EXECUTIVE IS NOT RELYING ON SUB OR ANY REPRESENTATIVE OF SUB TO
EXPLAIN THIS AGREEMENT AND RELEASE TO EXECUTIVE. EXECUTIVE HAS HAD AN
OPPORTUNITY TO CONSULT AN ATTORNEY OR OTHER ADVISOR TO EXPLAIN THIS
AGREEMENT AND ITS CONSEQUENCES TO EXECUTIVE BEFORE EXECUTIVE SIGNED
IT, AND EXECUTIVE HAS AVAILED HIMSELF OR HERSELF OF THIS OPPORTUNITY
TO WHATEVER EXTENT EXECUTIVE DESIRED.
7. EXECUTIVE HAS SIGNED THIS AGREEMENT VOLUNTARILY AND ENTIRELY OF
EXECUTIVE'S OWN FREE WILL, WITHOUT ANY PRESSURE FROM SUB OR ANY
REPRESENTATIVE OF SUB, OR ANYONE ELSE.
IN WITNESS WHEREOF, and intending to be legally bound hereby, this
Agreement has been executed as of the day and year first above
written.
ATTEST: SUMMIT BANCORP.
______________________________By:______________________________
Secretary Executive Vice President
------------------------------
EXECUTIVE
--------------------------------
(Social Security Number)
STATE OF NEW JERSEY:
COUNTY OF _______________________:
I certify that on this _______ day of ____________, _______ personally came
before me _______________(Executive), who, being duly sworn, acknowledged under
oath to my satisfaction that such person is named in and personally executed the
foregoing Receipt and Release as such person's voluntary act and deed, for the
purposes set forth therein.
IN WITNESS WHEREOF, I have set my hand this ____ day of
-------------, ------.
By: ___________________________________
Notary Public of the State of New Jersey
My Commission expires __________________
