EXHIBIT 10(n)
CHANGE OF CONTROL AGREEMENT
WITH NATIONAL BANK OF SUSSEX COUNTY
AND HIGH POINT FINANCIAL CORP.
This AGREEMENT is made effective as of October 1, 1996 by and between
NATIONAL BANK OF SUSSEX COUNTY, a national association chartered under the laws
of the United States (the "Bank"), HIGH POINT FINANCIAL CORP., a New Jersey
corporation (the "Company") (the Company and the Bank sometimes collectively
referenced to herein as the "Employer") and Xxxxxx X. Xxxxxxxxxxx ("Executive").
WHEREAS, the Bank recognizes the substantial contribution Executive has
made in the past to the Bank and the Company and wishes to ensure that Bank and
Company (referred to herein collectively as the "Employer") will continue to
benefit from Executive's services in the future; and
WHEREAS, Executive has been appointed to, and has agreed to serve in the
position of Senior Vice President, a position of substantial responsibility;
NOW, THEREFORE, in consideration of the contribution of Executive, and
upon the terms and conditions hereinafter provided, the parties hereto agree as
follows:
1. TERM OF AGREEMENT
The term of this Agreement shall be deemed to have commenced as of the
date first above written and shall continue until September 30, 2001; provided,
however, that the term of this Agreement shall be automatically extended for one
additional year on each anniversary date of the commencement date of this
Agreement, unless 60 days prior to such anniversary date the Boards of Directors
of the Employer shall pass a resolution clearly stating their intention not to
so extend the term of this Agreement.
2. PAYMENTS TO EXECUTIVE UPON CHANGE IN CONTROL
(a) Upon the occurrence of a Change in Control of the Company (as
defined herein) followed at any time during the term of this Agreement by the
involuntary termination of Executive's employment (other than a Termination for
Cause as defined in Section 2(c) hereof), or the voluntary termination of the
Executive's employment pursuant to Section 4 hereof, or a termination without
Cause in the event that a Change in Control takes place within six months
thereafter, the provisions of Section 3 shall apply.
(b) A "Change in Control" shall mean any of the following:
(1) a reorganization, merger, consolidation or sale of all
or substantially all of the assets of the Bank or the
Company, or a similar transaction in which the Bank or
the Company is not the resulting entity; or
(2) individuals who constitute the Incumbent Board (as
herein defined) of the Bank or the Company cease for any
reason to constitute a majority thereof; or
(3) a change in control within the meaning of 12 C.F.R. (S)
225.2(e)(1), as determined by the Board of Directors of
the Bank or the Company; or
(4) an event occurs of a nature that (i) would be required
to be reported in response to Item I of the current
report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"), or (ii)
results in a change in control of the Bank or the
Company within the meaning of the Rules and Regulations
promulgated by the Broad of Governors of the Federal
Reserve System or the Office of the Comptroller of the
Currency, as in effect on the date hereof; or
(5) without limitation, a change in control shall be deemed
to have occurred at such time as any "person" (as the
term is used in Section 13(d) and 14(d) of the Exchange
Act) other than the Company is or becomes a "beneficial
owner" (as defined in Rule 13-d under the Exchange Act)
directly or indirectly, of securities of the Company
representing 25% or more of the Company's outstanding
securities ordinarily having the right to vote at the
election of directors (excluding any securities
purchased by the Bank's employee stock ownership plan
and trust or any other employee benefit plan of the
Company or the Bank established from time to time); or
(6) a proxy statement soliciting proxies from stockholders
of the Company is distributed by someone other than the
current management of the Company, seeking stockholder
approval of a plan of reorganization, merger or
consolidation of the Company
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or similar transaction with one or more corporations as
a result of which the outstanding shares of the class of
securities then subject to the plan or transaction are
exchanged or converted into cash or property or
securities not issued by the Company; or
(7) a tender offer is made for 25% or more of the voting
securities of the Company and the shareholders owning
beneficially or of record 25% or more of the outstanding
securities of the Company have tendered or offered to
sell their shares pursuant to such tender offer and such
tendered shares have been accepted by the tender
offeror.
For these purposes, "Incumbent Board" means the Board of
Directors on the date hereof, provided that any person becoming a director
subsequent to the date hereof whose election was approved by a vote of at least
three-quarters of the directors comprising the Incumbent Board, or whose
nomination for election by members or stockholders was approved by the same
nominating committee serving under an Incumbent Board, shall be considered as
though he were a member of the Incumbent Board.
(c) Executive shall not have the right to receive
termination benefits pursuant to Section 3 hereof upon Termination for Cause.
The term "Termination for Cause" shall mean termination because of the
Executive's intentional failure to perform stated duties, personal dishonesty,
incompetence, willful misconduct, any breach of fiduciary duty involving
personal profit, willful violation of any law, rule, regulation (other than
traffic violations or similar offenses) or final cease and desist order, or any
material breach of any material provision of this Agreement. In determining
incompetence, the acts or omissions shall be measured against standards
generally prevailing in the banking industry. Notwithstanding the foregoing,
Executive shall not be deemed to have been Terminated for Cause unless and until
there shall have been delivered to him a copy of a resolution duly adopted by
the affirmative vote of not less than three-fourths of the members of the Board
of Directors of the Employer at a meeting of the Board called and held for that
purpose (after reasonable notice to Executive and an opportunity for him,
together with counsel, to be heard before the Board), finding that in the good
faith opinion of the Board, Executive was guilty of conduct justifying
Termination for Cause and specifying the particulars thereof in detail. The
Executive shall not have the right to receive compensation or other benefits
(other than the payment of vested benefits and those benefits required by law)
for any period after Termination for Cause.
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3. TERMINATION
(a) Upon the occurrence of a Change in Control, followed at
any time during the term of this Agreement by the involuntary termination of the
Executive's employment (other than a Termination for Cause), or a termination
without Cause in the event that a Change in Control takes place within six
months thereafter, the Company shall be obligated to pay the Executive,
or in the event of his subsequent death, his beneficiary or beneficiaries, or
his estate, as the case may be, as severance pay, a sum equal to two and ninety-
nine one-hundredths (2.99) times the preceding year's annual salary, including
bonuses and any other cash compensation paid or accrued by the executive during
such year, and the amount of any benefits received pursuant to any employee
benefit plans on behalf of the Executive maintained by the Company and the Bank
during such years, excluding benefits continued pursuant to (b) below. Payment
shall be made in a lump sum less any deductions for withholding required by law.
(b) Upon the occurrence of a Change in Control followed at
any time during the term of this Agreement by the Executive's termination of
employment, other than a Termination for Cause, the Company shall cause to be
continued life, medical, dental and disability coverage substantially identical
to the coverage maintained for the Executive prior to his severance. Such
coverage and payments shall cease upon expiration of thirty-six (36) months.
(c) Upon the occurrence of a Change in Control followed at
any time during the term of this Agreement by the Executive's termination of
employment, other than a Termination for Cause, the Executive will have the
personal use of the automobile assigned to him for a period of one year after
the Termination Date. The vehicle shall be the one most frequently utilized by
the Executive during the prior 12-month period unless upgraded to a newer model
of equivalent value during the months immediately preceding the Termination
Date.
(d) Upon the occurrence of a Change in Control followed at
any time during the term of this Agreement by the Executive's termination of
employment, other than a Termination for Cause, the Company shall reimburse the
Executive for outplacement services with a mutually agreed upon firm for a
period not to exceed eighteen months.
(e) Notwithstanding the preceding paragraphs of this Section
3: (i) in no event shall the aggregate payments or benefits to be made or
afforded to Executive under said paragraphs (the "Termination Benefits")
constitute an "excess parachute payment" under Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code") or any successor thereto, and in
order to avoid such a result Termination Benefits will be reduced, if necessary,
to an amount (the "Non-Triggering Amount"), the value of which is one dollar
($1.00) less than an amount equal to three (3) times
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Executive's "base amount", as determined in accordance with said Section 280G.
The allocation of the reduction required hereby among Termination Benefits
provided by the preceding paragraphs of this Section 3 shall be determined by
the Company.
4. RESIGNATION FOR GOOD REASON
Upon the occurrence of a Change in Control, Executive shall have
the right for a period of six (6) months following such Change in Control to
elect to voluntarily terminate his employment with the Company or with the Bank
in the event Executive is reassigned to a position of lesser rank or status than
that held prior to the Change in Control, or the Executive's principal place of
employment is relocated by more than thirty (30) miles from its location prior
to the Change in Control or Executive's annual compensation is reduced or if
there is a material reduction in other benefits below what they were prior to
the Change in Control, and Executive shall be treated as if his employment had
been involuntarily terminated without Cause and shall be entitled to receive
benefits provided for under Section 3 hereof.
5. NOTICE OF TERMINATION
(a) Any purported termination by the Company or by Executive
shall be communicated by Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
(b) "Date of Termination" shall mean the date specified in
the Notice of Termination (which, in the case of a Termination for Cause, shall
be immediate). In no event shall the Date of Termination exceed thirty (30) days
from the date Notice of Termination is given.
6. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS
This Agreement contains the entire understanding between the
parties hereto and supersedes any prior agreement between the Company and/or the
Bank and Executive, except that this Agreement shall not affect or operate to
reduce any benefit or compensation inuring to Executive of a kind elsewhere
provided. No provision of this Agreement shall be interpreted to mean that
Executive is subject to receiving fewer benefits than those available to him
without reference to this Agreement.
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7. NO ATTACHMENT
(a) Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge, or hypothecation, or to
execution, attachment, levy, or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to affect any such action shall
be null, void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the
benefit of, Executive, the Bank, the Company and their respective successors and
assigns.
8. MODIFICATION AND WAIVER
(a) This Agreement may not be modified or amended except by
an instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed
to have been waived, nor shall there be any estoppel against the enforcement of
any provision of this Agreement, except by written instrument of the party
charged with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
9. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part
of any provision, is held invalid, such invalidity shall not affect any other
provision of this Agreement or any part of such provision not held so invalid,
and each such other provision and part thereof shall to the full extent
consistent with law continue in full force and effect.
10. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included
solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
11. GOVERNING LAW
The validity, interpretation, performance, and enforcement of
this Agreement shall be governed by the substantive laws of the State of New
Jersey, without
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giving effect to the choice of law provisions thereof, unless preempted by
Federal law as now or hereafter in effect.
Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration, conducted before a
panel of three (3) arbitrators sitting in a location selected by Executive
within fifty (50) miles from the location of the headquarters of the Company, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrators' award in any court having
jurisdiction; provided, however, that Executive shall be entitled to seek
specific performance of his right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in connection
with this Agreement.
12. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive pursuant
to any dispute or question of interpretation relating to this Agreement shall be
paid or reimbursed by the Company if Executive is successful on the merits
pursuant to a legal judgment, arbitration or settlement.
13. INDEMNIFICATION
The Company shall provide Executive (including his heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense, or in lieu thereof, shall
indemnify Executive (and his heirs, executors and administrators) to the fullest
extent permitted under law and as provided in the Company's Certificate of
Incorporation and Bylaws against all expenses and liabilities reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been a director
or officer of the Company and/or the Bank (whether or not he continues to be a
director or officer at the time of incurring such expenses or liabilities), such
expenses and liabilities to include, but not be limited to, judgments, court
costs, attorneys' fees and the cost of reasonable settlements.
14. SUCCESSORS
The Company shall require any successor or assignee, whether
direct or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank, expressly and
unconditionally to assume and agree to perform the Bank's obligations under this
Agreement, in the same manner and to the same extent that the Bank would be
required to perform if no such succession or assignment had taken place.
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IN WITNESS WHEREOF, each of National Bank of Sussex County, and
High Point Financial Corp. has caused this Agreement to be executed by its duly
authorized officer, and Executive has signed this Agreement, on the day and date
first above written .
ATTEST: NATIONAL BANK OF SUSSEX COUNTY
Xxxxxx X. Vandenbergh_ By: \Xxxxxxx X. Xxxx
--------------------- ------------------------------------
Xxxxxx X. Xxxxxxxxxxx Name: Xxxxxxx X. Xxxx
Secretary Title: Chairman of the Board
ATTEST: HIGH POINT FINANCIAL CORP.
\Xxxxxx X. Vandenbergh_ By: \Xxxxxxx X. Xxxx
---------------------- ------------------------------------
Xxxxxx X. Xxxxxxxxxxx Name: Xxxxxxx X. Xxxx
Secretary Title: Chairman of the Board
WITNESS:
\Xxxxxxx X. Xxxxxxxxx By: \Xxxxxx X. Xxxxxxxxxxx
--------------------- ------------------------------------
President Xxxxxx X. Xxxxxxxxxxx, Executive
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