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Exhibit (10)EE
TERMINATION AGREEMENT
THIS AGREEMENT dated and entered into effective and as of the _____
day of ______________, _____, by and between Summit Bancorp., a New Jersey
corporation (the "Company"), and ______________________________, residing at
______________________________, _____________, __________ ___________ (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
[insert title of executive] of [insert Company or name of Subsidiary] 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
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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 stockholders 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
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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
stockholders 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 fifth anniversary of the
date hereof; provided, however, that commencing on the fifth anniversary of the
date hereof 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 (as hereinafter defined) 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
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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 before the Executive's Normal
Retirement Date 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. 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 (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 (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
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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 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, 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.
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(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
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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
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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 (which for purposes of this Agreement shall mean
benefits under all welfare plans as that term is defined in
Section 3(1) of the Employee Retirement Income Security Act of
1974, as amended) 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
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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 Normal Retirement 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.
(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
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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 during the twelve-month period immediately
prior to the giving of the 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, payment 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
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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 welfare 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 in the twelve (12) months immediately prior to the Change in Control of
the Company.
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 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 shall be repaid promptly
by the Executive to the Company or a Subsidiary, 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
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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 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 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
(as hereinafter defined) 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)
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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 and other benefits available to
full-time exempt employees of the Company or Subsidiary employing the Executive,
as applicable, at Retirement including, but not limited to, post-retirement
health and life insurance benefits. 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
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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 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) 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, but only to the extent permitted by
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applicable law or the terms (including terms and conditions related to the
Executive's death, disability or retirement, such as changes in benefits upon
retirement) of any such Welfare Plan, as interpreted by the Company; 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. 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 immediately prior to the giving of the 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. 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, until the Executive's
Normal Retirement Date of the amounts the Executive would have received 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. The continuation
of welfare benefits provided
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by this subparagraph 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. 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. 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.
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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
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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
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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
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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 setoff,
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
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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:
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
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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 employed by 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
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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 agreement between the Company and the Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date set forth above.
SUMMIT BANCORP. EXECUTIVE
By:
---------------------------- ----------------------------
Name:
Title:
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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 a party to a
Participation Agreement last amended October 15, 1997 pursuant to
which Executive participates in SUB's Executive Severance Plan
and a Termination Agreement last amended October 15, 1997 (the
Plan and these Agreements 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.
a. 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.
b. 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.
c. 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.
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2. Payment. Executive shall receive promptly 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. SUB continues to be
obligated to provide certain welfare and pension benefits and perquisites,
and both parties are obligated to make certain adjustments to the Offset
Payments if required, all 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-Solicitation of SUB Customers. For a period of three (3) years
from the date hereof, Executive will not solicit or induce any
person, corporation, or other entity that is a customer of SUB or
that was such at any time within one year prior to the date hereof
to become a customer of any other person, firm, corporation, or
other entity which directly or indirectly competes with SUB, or
approach any such person, firm, corporation, or other entity for
such purpose or authorize or knowingly approve the taking of such
actions by other persons.
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.
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
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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
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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").
Executive and SUB agree that a WRONGFUL TERMINATION CLAIM, specifically
and without limitation, does not include claims:
a. for indemnification as a corporate agent of SUB against claims by
third parties;
b. 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. ss.1001 et
seq., and under the Consolidated Omnibus Budget Reconciliation Act
of 1985 ("COBRA");
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c. arising out of enforcement of the Contracts or this Agreement by
Executive; or
d. 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. ss.1971 et seq.; the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. ss.621 et seq.; Section 510
of the Employee Retirement Income Security Act of 1974, as amended, 29
U.S.C. ss.1001 et seq.; the Americans With Disabilities Act, as amended,
42 U.S.C. ss.12101 et seq.; the Older Workers Benefit Protection Act, as
amended, 29 U.S.C. ss.621 et seq.; the Civil Rights Act of 1866, as
amended, 42 U.S.C. ss.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 ss.290 et seq.; the
Pennsylvania Human Relations Act, as amended, 43 P.S. ss.951 et seq.; and
the Pennsylvania Whistleblower Law, as amended, 43 P.S. ss.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
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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
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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:
________________________________
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.
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14. By signing this AGREEMENT, Executive acknowledges:
a. EXECUTIVE HAS READ THIS AGREEMENT COMPLETELY.
b. EXECUTIVE HAS HAD AN OPPORTUNITY TO CONSIDER THE TERMS OF THIS
AGREEMENT.
c. EXECUTIVE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY OF
EXECUTIVE'S CHOOSING PRIOR TO EXECUTING THIS AGREEMENT.
d. EXECUTIVE KNOWS THAT EXECUTIVE MAY BE GIVING UP IMPORTANT LEGAL
RIGHTS BY SIGNING THIS AGREEMENT.
e. EXECUTIVE UNDERSTANDS AND MEANS EVERYTHING THAT EXECUTIVE HAS SAID
IN THIS AGREEMENT, AND EXECUTIVE AGREES TO ALL ITS TERMS.
f. 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.
g. 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.
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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 Release, Covenant not to Xxx, Non-Disclosure
and Non-Solicitation Agreement 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 __________________
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