Exhibit 10.7.1
FIRST AMENDMENT
TO
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT (this "FIRST AMENDMENT") is made as of September
26, 2003, by and among TRUSTCOMPANY BANCORP, a New Jersey corporation (the
"COMPANY"), THE TRUST COMPANY OF NEW JERSEY, a New Jersey bank (the "BANK"), and
XXXX X. XXXXXX, an individual residing at 00 X. Xxxxx Xxxxxx, Xxx. 0X, Xxx Xxxx,
New York 10013 (the "EXECUTIVE") to amend certain provisions of the Employment
Agreement dated as of September 25, 2002 among the Company, the Bank and the
Executive (the "EMPLOYMENT AGREEMENT"). Capitalized terms not defined herein
have the meanings set forth in the Employment Agreement.
W I T N E S S E T H T H A T:
WHEREAS, the Company, the Bank and the Executive entered into the
Employment Agreement; and
WHEREAS, the Board of Directors of the Company and the Bank, and their
respective Compensation Committees, at meetings held in September 2003,
concluded that the Employment Agreement should be amended to (i) change the
manner of extending the Employment Period, (ii) clarify the Executive's
participation in employee benefit plans and perquisites, and (iii) clarify the
definition of, and provisions governing the termination upon or following, a
"change of control"; and
WHEREAS, the Executive has agreed to such amendments and is willing to
provide the services under the Employment Agreement as amended hereby.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Section 2(b) of the Employment Agreement is deleted in its
entirety and is hereby replaced with the following provision:
"(b) The Employment Period shall be subject to extension in
the following manner: On each anniversary of the Employment
Commencement Date (each, an "ANNIVERSARY DATE"), the
Employment Period shall automatically be extended to continue
through the day before the third (3rd) anniversary of the
relevant Anniversary Date, unless the Executive, the Company
or the Bank elects not to so extend this Agreement, as
amended, by giving written notice thereof to the other party
prior to the Anniversary Date. In determining whether to a
give a notice that this Agreement, as amended, shall not be so
extended or to allow this Agreement, as amended, to be so
extended, the Boards of Directors
of the Company and the Bank (or a compensation committee
thereof) shall do so on the basis of an annual review of the
Executive's performance on or about fifteen (15) days prior to
the Anniversary Date, it being understood that each such Board
of Directors (or compensation committee thereof) shall act
independently in making such determination and either the
Company or the Bank (or both) may give a notice of
non-extension. The review set forth in this Section 2(b) shall
not limit in any manner any review of the Executive's
performance in the ordinary course of his employment. If the
Employment Period is extended by the Company but not the Bank
(or vice-versa), at the conclusion of the Employment Period
with the employer that does not extend this Agreement, as
amended (the "NON-EXTENDING EMPLOYER"), the Executive (i)
shall be discharged from his position with the Non-Extending
Employer but shall not be entitled to the Standard Termination
Entitlements, the Additional Termination Entitlements, or the
other benefits or severance payments set forth in this
Agreement, as amended, in respect of such discharge; and (ii)
shall remain employed with the extending employer pursuant to
the terms hereof during the remainder of the Employment Period
as so extended, and all obligations hereunder, including
benefits and entitlements due to the Executive hereunder,
shall be assumed by and provided by such employer,
notwithstanding anything herein to the contrary."
2. Section 5 of the Employment Agreement is deleted in its
entirety and is hereby replaced with the following provisions:
"Section 5. PARTICIPATION IN EMPLOYEE BENEFIT PLANS. During
the Employment Period, the Executive shall be treated as an
employee of the Company and the Bank and shall be entitled to
participate in and receive benefits under any and all
qualified or non-qualified retirement, pension, savings,
profit-sharing or stock bonus plans, any and all group life,
health (including hospitalization, medical and major medical),
dental, accident and long-term disability insurance plans, and
any other employee benefit and compensation plans (including,
but not limited to, any incentive compensation plans or
programs, stock option and appreciation rights plans and
restricted stock plans) as may from time to time be maintained
by, or cover executive officers of, the Company and the Bank,
in accordance with the terms and conditions of such employee
benefit plans and programs and compensation plans and programs
and consistent with the Company's and the Bank's customary
practices. In addition, the Executive shall be entitled to
perquisites that are generally available to executive officers
of the Company and the Bank. Notwithstanding the foregoing,
the Company and the Bank reserve
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the right to alter, amend, and rescind their benefits plans
and programs and employee contribution levels in their
discretion, provided that they do so with respect to all other
executive officers."
3. Section 14(a) of the Employment Agreement is deleted in its
entirety and is hereby replaced with the following provision:
"(a) A "CHANGE OF CONTROL" shall be deemed to have occurred
upon the happening of any of the following events: (i) the
consummation of a reorganization, merger or consolidation of
the Company with one or more other persons, other than a
transaction following which: (A) at least 51% of the equity
ownership interests of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule
13d-3 promulgated under the Securities Exchange Act of 1934,
as amended ("EXCHANGE ACT")) in substantially the same
relative proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least 51% of the
outstanding equity ownership interests in the Company; and (B)
at least 51% of the securities entitled to vote generally in
the election of directors of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) in substantially the
same relative proportions by persons who, immediately prior to
such transaction, beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) at least 51% of
the securities entitled to vote generally in the election of
directors of the Company; (ii) the acquisition of all or
substantially all of the assets of the Company or beneficial
ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 50% or more of the outstanding securities
of the Company entitled to vote generally in the election of
directors by any person or by any persons acting in concert;
(iii) a complete liquidation or dissolution of the Company;
(iv) the occurrence of any event if, immediately following
such event, at least 50% of the members of the Board of
Directors of the Company do not belong to any of the following
groups: (A) individuals who were members of the Board of
Directors of the Company on the date of this Agreement (i.e.,
September 25, 2002); or (B) individuals who first became
members of the Board of Directors of the Company after the
date of this Agreement (i.e., September 25, 2002) either: (1)
upon election to serve as a member of the Board of Directors
of the Company by affirmative vote of two-thirds of the
members of such board, or of a nominating committee thereof,
in office at the time of such first election; or (2) upon
election by the shareholders of
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the Company to serve as a member of such board, but only if
nominated for election by affirmative vote of two-thirds of
the members of the Board of Directors of the Company, or of a
nominating committee thereof, in office at the time of such
first nomination; PROVIDED, HOWEVER, that such individual's
election or nomination did not result from an actual or
threatened election contest (within the meaning of Rule l4a-11
of Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents
(within the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) other than by or on behalf
of the Board of Directors of the Company; or (v) any event
which would be described in Section 14(a)(i), (ii), (iii) or
(iv) if the term "Bank" were substituted for the term
"Company" therein. In no event, however, shall a Change of
Control be deemed to have occurred as a result of a
reorganization of the Bank as a wholly owned subsidiary of the
Company as a bank holding company under the Bank Holding
Company Act, in which transaction the stockholders of the Bank
become stockholders of such bank holding company in
substantially the same proportions as their holdings in the
Bank, or of any acquisition of securities or assets of the
Company, the Bank, or a subsidiary of either of them, by the
Company, the Bank, or any subsidiary of either of them, any
employee benefit plan maintained by any of them, or by any
person who owns five percent or more of the Bank's common
stock on the date of this Agreement (i.e., September 25,
2002). For purposes of this Section 14(a), the term "person"
shall have the meaning assigned to it under Sections 13(d)(3)
or 14(d)(2) of the Exchange Act."
4. Section 14(c) of the Employment Agreement is deleted in its
entirety and is hereby replaced with the following provision:
"(c) Notwithstanding anything in this Agreement, as amended,
to the contrary, if the Executive's employment with the Bank
and the Company terminates due to death or disability after
the occurrence of a Pending Change of Control and if a Change
of Control occurs within two (2) years after such termination
of employment, he (or in the event of his death, his estate)
shall be entitled to receive the Standard Termination
Entitlements and the Additional Termination Entitlements that
would have been payable if a Change of Control had occurred on
the date of his termination of employment and he had resigned
for Good Reason immediately thereafter; PROVIDED, that payment
shall be deferred without interest until, and shall be payable
immediately upon, the actual occurrence of a Change of
Control."
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5. The following shall be added to the end of Section 14 of the
Employment Agreement:
"(f) In the event that the employment of the Executive is
terminated by the Executive for Good Reason or is terminated
by the Company and the Bank without Cause, and a Pending
Change of Control occurs prior to the later of the expiration
of the Employment Period then in effect (without considering
such termination) or six months following the date of
termination of employment, the Company or the Bank shall pay
the Standard Termination Entitlements and the Additional
Termination Entitlements that would have been payable if a
Change of Control had occurred on the date of his termination
of employment, provided, that payment shall be deferred
without interest until, and shall be payable immediately upon
(and only upon), the actual occurrence of the Change of
Control."
6. The Company, the Bank and the Executive affirm the continuing
validity of the Employment Agreement, as amended by this First Amendment.
7. This First Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of New Jersey applicable to
contracts entered into and to be performed entirely within the State of New
Jersey.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have duly executed this First
Amendment as of the day and year first above written.
THE TRUST COMPANY OF NEW JERSEY
By: /s/ Xx. Xxxxxx Xxxxx
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Name: Xx. Xxxxxx Xxxxx
Title: Chairman of the
Compensation Committee
TRUSTCOMPANY BANCORP
By: /s/ Xx. Xxxxxx Xxxxx
---------------------------
Name: Xx. Xxxxxx Xxxxx
Title: Chairman of the
Compensation Committee
EXECUTIVE:
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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