AMENDMENT NO. 1 TO CHANGE IN CONTROL, CONFIDENTIALITY AND NON-COMPETE AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 1 TO CHANGE IN CONTROL, CONFIDENTIALITY
This Amendment is made as of May 7,
2008 (the “Effective Date”), between Greater Community Bank (the “Bank”), a New
Jersey commercial banking corporation, Greater Community Bancorp (“GCB”), a New
Jersey business corporation (hereinafter collectively referred to as “the
Company”) and Xxxxxxx X. Xxxxxx (the “Executive”).
WHEREAS, the Company and the
Executive are party to a Change in Control, Confidentiality and Non-Compete
Agreement (the “Agreement”) dated November 13, 2007;
WHEREAS, the Company does
not want Executive's Change in Control payment under Section 2(d) or 2(e) of the
Agreement to be reduced by any salary or bonus paid to Executive following a
Change in Control, if the entity resulting from a Change in Control desires the
opportunity for Executive to work at it during the transition period following
the Change in Control;
WHEREAS, the compensation
committee of the Greater Community Board of Directors prior to the date of the
Agreement and Plan of Merger by and among Valley National Bancorp and Greater
Community Bancorp dated as of March 19, 2008, determined that the Executive
should receive a stay-on bonus of $100,000 exclusive of and in addition to any
payments to the Executive made pursuant to Section 2(d) or 2(e) of the
Agreement;
NOW THEREFORE, in
consideration of the mutual promises contained in this Amendment, the parties
intending to be legally bound, agree as follows:
1. Involuntary Termination After
Change in Control. Section 2(d) is amended to delete the language, "less
that amount of base salary, excluding any bonuses, actually paid after the
Change in Control, and" so that Section 2(d) now states in its entirety,
"Notwithstanding any provision herein to the contrary, if, in connection with or
within twelve (12) months after any “Change in Control” of the Company, the
Executive’s employment under this Agreement is terminated by the Company without
the Executive’s prior written consent and for a reason other than Just Cause,
the Executive shall be paid an amount equal to one (1) times his base annual
salary, subject to ordinary tax withholdings, provided Executive executes a
waiver and release agreement regarding employment related claims in a form
satisfactory to the Company; however, Executive will not receive this payment if
the Company was placed in conservatorship or receivership in connection with
such Change in Control and the Board of Directors of the Company determines in
good faith that the Change in Control was directed by or otherwise required by
the FDIC. In no event, may the aggregate amount payable hereunder
equal or exceed the difference between (i) the product of 2.99 times the
Executive’s “base amount” as defined in Section 280G(b)(3) of the Code and
regulations promulgated thereunder, and (ii) the sum of any other parachute
payments (as defined under Section 280G(b)(2) of the Code) that the Executive
receives on account of the change in control. Such amount shall be
paid in a lump sum, less applicable tax withholdings within ten (10) days of the
effective date of the waiver and release agreement."
2. Stay-On
Bonus. A
new section 2.g. shall be added to the Agreement and shall read as
follows:
“g. Stay-On
Bonus. In the event that a merger occurs between the Company
and Valley National Bancorp ("Valley") pursuant to the Agreement and Plan of
Merger between such parties dated March 19,
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2008,
that would constitute a Change in Control under this Agreement, Executive shall be
eligible to receive a stay-on bonus of up to $100,000, subject to ordinary tax
withholdings; however, Executive will not receive this payment if the Company
was placed in conservatorship or receivership in connection with such Change in
Control and the Board of Directors of the Company determines in good faith that
the Change in Control was directed by or otherwise required by the
FDIC. In no event may the aggregate amount payable hereunder equal or
exceed the difference between (i) the product of 2.99 times the Executive’s
“base amount” as defined in Section 280G(b)(3) of the Code and regulations
promulgated thereunder, and (ii) the sum of any other parachute payments (as
defined under Section 280G(b)(2) of the Code) that the Executive receives on
account of the Change in Control. In order to be eligible for this
bonus, Executive must cooperate promptly with all merger, integration, and/or
business activities, including without limitation: (i) gathering all requested
information and documentation; (ii) assigning, preparing, presenting management
presentations and completely responding to any questions and answers; (iii)
assisting, preparing, reviewing, and completing documents associated with the
merger integration process; and (iv) maintaining the confidentiality of
information. For purposes of this paragraph, "Just Cause" shall
include the items identified in paragraph 2(c) of the Agreement and items
(i)-(iv) identified above. The bonus shall be paid on the following
dates, provided that Executive is working for Valley, the entity resulting from
the merger of Valley and the Company, and/or any subsidiaries of the same
(collectively, the “Resulting Company”) at the time of the payment and has
satisfactorily performed his duties for the Resulting Company as
determined by it in its reasonable discretion: (i) One third of the
bonus ($33,333.33) will be paid 30 days after the closing of the merger; (ii)
one third of the bonus ($33,333.33) will be paid 60 days after the closing of
the merger; (iii) one third of the bonus ($33,333.34) will be paid 90 days after
the closing of the merger, provided that the last payment is made no later than
March 15 of the year following the year in which the Change in Control
occurred. In the event Executive's employment is terminated without
Just Cause or for Good Reason he shall also be eligible to receive these
payments, provided Executive executes a waiver and release agreement regarding
employment related claims in a form satisfactory to the Resulting
Company. In that event, Executive will be paid any amounts still
owing as a bonus in a lump sum, less applicable tax withholdings, within ten
(10) days after the effective date of the waiver and release agreement. If Executive's
employment ends for any other reason, including a termination for Just Cause
and/or a voluntary termination without Good Reason, he is not eligible for any
other payments under this paragraph, but will be permitted to retain payments
previously received. The payments referenced in this paragraph 2(g)
shall be exclusive of and in addition to any payment to be received by the
Executive pursuant to Section 2.d. or 2.e of this
Agreement. Executive further acknowledges that nothing in this
paragraph constitutes a contract of employment or imposes on the Company and/or
the Resulting Company any obligation to retain Executive, changes the status of
Executive's employment, or changes the policies of the Company and/or the
Resulting Company regarding termination of employment.”
3. No
Further Amendment. Except as
expressly provided in this Amendment, the terms and conditions of the Agreement
are and remain in full force and effect.
IN WITNESS WHEREOF, the
Parties have executed this Amendment as of the Effective Date.
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EXECUTIVE
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By:
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/s/ Xxxxxxx X. Xxxxx,
Xx.
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/s/ Xxxxxxx X.
Xxxxxx
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Xxxxxxx
X. Xxxxx, Xx.
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Xxxxxxx
X. Xxxxxx
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Chairman,
President and
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Senior
Vice President,
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Chief
Executive Officer
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Treasurer,
and Chief
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Financial
Officer
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GREATER
COMMUNITY BANK
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By:
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/s/ Xxxxxxx X. Xxxxx,
Xx.
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Xxxxxxx
X. Xxxxx, Xx.
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Chairman,
President and
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Chief
Executive Officer
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