Exhibit (10) EE (i)
TERMINATION AGREEMENT
THIS AGREEMENT dated and entered into effective
and as of the 15th day of October, 1997, 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 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 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 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
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 (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 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 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
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
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.
IN WITNESS WHEREOF, the parties have executed
this Agreement as of the date set forth above.
SUMMIT BANCORP. EXECUTIVE
By:
Name:
Title:
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.
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-Solicitation of SUB Customers. For a period of two (2)
years from the date hereof, Executive will not actively solicit
or induce any person, corporation, or other entity that is a customer
of SUB 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,
without the prior written consent of SUB. This shall not be deemed to
prohibit (i) responding to requests for service initiated by customers of
SUB, (ii) solicitation of the public at large through television, radio,
newspapers, magazines, newsletters or Internet home pages, or (iii)
resolicitation by the competitor of persons, firms, corporations or other
entities who were customers of both SUB and the competitor on the date
hereof for those services provided to the customer by the competitor on
the date hereof.
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:
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. Par. 1001 et seq., and under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA");
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. Par. 1971 et seq.; the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. Par. 621 et seq.; Section 510 of the
Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. Par.
1001 et seq.; the Americans With Disabilities Act, as amended, 00 X.X.X.
Xxx.00000 et seq.; the Older Workers Benefit Protection Act, as amended, 29
U.S.C. Par.621 et seq.; the Civil Rights Act of 1866, as amended, 42 U.S.C.
Par.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 Par.290 et seq.; the Pennsylvania Human Relations Act, as
amended, 43 P.S. Par.951 et seq.; and the Pennsylvania Whistleblower Law,
as amended, 43 P.S. Par.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:
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.
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 __________________
