PEAPACK-GLADSTONE EMPLOYMENT AGREEMENT OF JEFFREY CARFORA
Exhibit
10.2
PEAPACK-GLADSTONE
EMPLOYMENT AGREEMENT
OF
XXXXXXX
XXXXXXX
This
EMPLOYMENT AGREEMENT is
as of APRIL 7, 2010, by and between Peapack-Gladstone Financial Corporation
(“PGFC”) and
Peapack-Gladstone Bank (the “Bank”) (PGFC and the
Bank are collectively referred to herein as the “Company”), and EXECUTIVE XXXXXXX
XXXXXXX (“Executive”), whose
home address is 00 Xxxxx Xxxxx,
Xxxxxxxx, XX 00000.
WITNESSETH:
WHEREAS, the Company desires
to employ Executive pursuant to an agreement embodying the terms of such
employment (this “Agreement”) and
Executive desires to enter into this Agreement and to accept such employment,
subject to the terms and provisions of this Agreement; and
NOW, THEREFORE, in
consideration of the mutual covenants contained herein, the parties agree as
follows:
Section 1. Term of
Employment.
(a) The
term of Executive’s employment under this Agreement shall commence on April 7,
2010, (the “Effective
Date”) and end on June 2, 2010 (the “Original Term of
Employment”), unless terminated earlier in accordance
herewith.
(b) The
Original Term of Employment shall be automatically renewed for successive
one-year terms (the “Renewal Terms”) so
long as the Company does not, prior to 60 days before such expiration date,
deliver a notification of non-renewal to Executive stating that the Company is
electing to terminate this Agreement at the expiration of the then current Term
of Employment. “Term of Employment”
shall mean the Original Term of Employment and all Renewal Terms. In
the event that this Agreement is not renewed because the Company has given the
60-day notice prescribed in the preceding paragraph on or before the expiration
of the Original Term of Employment or any Renewal Term, such non-renewal shall
be treated as a “Termination Without Cause” pursuant to Section 5.
Section
2. Position and Duties. During the Term of
Employment, the Executive shall serve as the “EXECUTIVE VICE
PRESIDENT/CHIEF FINANCIAL OFFICER” of the Company. The
Executive shall have such powers and duties as are commensurate with such
position and as may be conferred upon him by the Board of Directors of the
Company (the “Board”). During
the Term of Employment, the Executive shall devote all of his/her business time,
attention, skill and efforts exclusively to the business and affairs of the
Company and its subsidiaries. Notwithstanding the foregoing, the
Executive may engage in charitable, educational, religious, civic and similar
types of activities, speaking engagements, membership on the board of directors
of other organizations, and similar activities to the extent that such
activities do not inhibit the performance of his/her duties hereunder or
conflict in any material way with the business of the Company and its
subsidiaries.
Section
3. Compensation. For all services rendered by the
Executive in any capacity required hereunder during the Term of Employment,
including, without limitation, services as an executive officer,
director,
or member of any committee of the Company or any of its subsidiaries, the
Executive shall be compensated as follows:
(a) The
Company shall pay the Executive a fixed salary at a rate per annum equal to
$206,000(“Base
Salary”). Base Salary shall be payable bi-weekly.
(b) The
Executive shall be eligible to receive a bonus with respect to the Term of
Employment. The amount, terms and conditions of such bonus shall be
determined in due course by the Board.
(c) The
Executive shall be entitled to a prorated vacation of three weeks in 2008 and
five weeks of vacation in each calendar year following during the Term of
Employment. The Executive shall not be entitled to carryover vacation
from one year to another or to any payment in respect of any unused
vacation.
(d) The
Executive shall be entitled to participate in all compensation and employee
benefit plans for which any salaried employees of the Company are eligible.
Notwithstanding the foregoing, nothing in this Agreement shall preclude the
amendment or termination of any such plan or program. Executive will
not be entitled to severance under any severance plan of the Company other than
pursuant to this Agreement.
Section
4. Business Expenses. The Company shall pay or
reimburse the Executive for all reasonable entertainment, travel or other
expenses incurred by the Executive in connection with the performance of his/her
duties under this Agreement, subject to the Executive’s presentation of
appropriate documentation in accordance with such procedures as the Company may
from time to time establish.
Section
5. Termination of Employment.
(a) The
Company shall have the right, upon delivery of written notice to the Executive,
to terminate the Executive’s employment hereunder prior to the expiration of the
Term of Employment:
(i) pursuant
to a Termination for Cause, or
(ii)
upon the Executive’s Permanent Disability, or
(iii) pursuant
to a Termination Without Cause.
(b) The
Executive shall have the right, upon delivery of written notice to the Company
30 days in advance of the proposed termination date, to terminate the
Executive’s employment hereunder prior to the expiration of the Term of
Employment in the Executive’s sole discretion.
(c) The
Executive’s employment hereunder shall terminate automatically without action by
any party hereto upon the Executive’s death.
(d) For
purposes of this Agreement, the following terms have the following
meanings:
“Termination for
Cause” means a termination of the Executive’s employment by the Company
because the Executive has (a) materially failed to perform the duties
assigned to him hereunder or imposed upon him by applicable law, and such
failure to perform constitutes self-dealing, willful misconduct or recklessness,
(b) committed an act of dishonesty in the performance of his/her duties
hereunder or engaged in conduct materially detrimental to the business of the
Company, (c) been convicted of a felony or a misdemeanor involving moral
turpitude, (d) materially failed to perform his/her duties hereunder, which
breach or failure the Executive shall fail to remedy within 30 days
after
written
demand from the Company, (e) knowingly failed to follow lawful, written
directives of the Board, or (f) engaged in any material employment act or
practice, including but not limited to sexual harassment, forbidden by the
Company in its employment manual as revised from time to time.
“Termination Without
Cause” means a termination of the Executive’s employment by the Company
other than due to Permanent Disability, retirement or expiration of the Term of
Employment and other than a Termination for Cause.
“Permanent Disability”
means permanently disabled so as to qualify for full benefits under the
Company’s then-existing disability insurance policy. If the Company
does not maintain any such policy on the date of termination, “Permanent Disability”
shall mean the inability of the Executive to work for a period of four full
calendar months during any eight consecutive calendar months due to illness or
injury of a physical or mental nature, supported by the completion by the
Executive’s attending physician of a medical certification form outlining the
disability and treatment.
Section
6. Benefits Upon Termination.
(a) In
lieu of any severance that may otherwise be payable to the Executive pursuant to
any policies of the Company, whether existing on the date hereof or in effect
from time to time hereafter, in the event that the Company terminates the
Executive’s employment pursuant to a Termination Without Cause, the Company
shall continue to pay the Executive’s Base Salary for a period (the “Severance Period”)
equal two years from the effective date of such termination. The
Executive also shall be entitled to any earned but unpaid Base Salary as of the
effective date of termination of employment. No other payments shall
be made, or benefits provided, by the Company under this Agreement except as
otherwise required by law or the Company’s benefit plans.
(b) In
the event that the Company terminates the Executive’s employment pursuant to a
Permanent Disability, the Company shall pay the Executive any earned but unpaid
Base Salary as of the date of termination of employment. No other
payments shall be made, or benefits provided, by the Company under this
Agreement except as otherwise required by law or the Company’s benefit
plans.
(c) In
the event that the Company terminates the Executive’s employment pursuant to a
Termination for Cause or the Executive terminates his/her employment with the
Company for any reason (including, without limitation, pursuant to any
retirement), the Company shall pay the Executive any earned but unpaid Base
Salary as of the date of termination of employment. No other payments
shall be made, or benefits provided, by the Company under this Agreement or
otherwise except to the extent required by law or the Company’s benefit
plans.
(d) In
the event that the Executive’s employment hereunder is terminated due to the
Executive’s death, the Company shall pay the Executive’s executor or other legal
representative (the “Representative”) any
earned but unpaid Base Salary as of the date of termination of
employment. No other payments shall be made, or benefits provided, by
the Company whether under this Agreement or otherwise except to the extent
required by law or the Company’s benefit plans.
(e) Any
payments to be made or benefits to be provided by the Company pursuant to this
Section 6 (other than in the event of the Executive’s death or Permanent
Disability) are subject to the receipt by the Company of an effective general
release and agreement not to xxx, in form and substance reasonably satisfactory
to the Company (the “Release”) pursuant to
which the Executive agrees (i) to release all claims
against
the Company and certain related parties (excluding claims for (x)
indemnification under the Company’s Certificate of Incorporation or by-laws or
(y) any severance benefits arising out of this Agreement or otherwise), (ii) not
to maintain any action, suit, claim or proceeding against the Company, its
subsidiaries and affiliates and certain related parties, and (iii) to be bound
by certain confidentiality and mutual non-disparagement covenants specified
therein. Notwithstanding the due date of any post-employment payment,
the Company shall not be obligated to make any payments under this Section 6
until after the expiration of any revocation period applicable to the
Release.
(f) The
Executive shall not be required to mitigate the severance payments to be made to
him hereunder and if the Executive obtains other employment while receiving
severance payments hereunder he shall continue to be entitled to the benefits of
this Agreement.
(g) Notwithstanding
anything else herein to the contrary in this Section 5 or otherwise,
distributions to be made to Executive may be delayed for up to 6 months in order
to avoid adverse tax implications to Executive, the Company or other similarly
situated employees under Section 409A of the Internal Revenue Code of 1986 (the
“Code”). At
the end of such period of delay, you will be paid the delayed payment amounts,
plus interest for the period of any such delay. For purposes of the
preceding sentence, interest shall be calculated using the six (6) month
Treasury Xxxx rate in effect on the date on which the payment is delayed, and
shall be compounded daily.
Section
7. Confidential Information. The Executive and the Company
agree that all information pertaining to the affairs, business, clients, or
customers of the Company or any of its subsidiaries, other than information that
the Company has previously made publicly available, is confidential information
belonging to the Company and is a unique and valuable asset of the
Company. Both during the Term of Employment hereof and thereafter,
the Executive shall not, except to the extent reasonably necessary in the
performance of his/her duties for the Company during the Term of Employment,
disclose any information concerning the affairs, businesses, clients, or
customers of the Company or its subsidiaries, or make use of any such
information for his/her own purposes or for the benefit of any other person,
firm, or corporation. All records, memoranda, letters, books, papers,
reports, or other data, and other records and documents relating to the Company
or its subsidiaries, whether made by the Executive or otherwise coming into
his/her possession, shall remain the property of the Company, no copies thereof
shall be made which are not retained by the Company, and the Executive agrees,
on termination of his/her employment not to retain any copies and deliver all
such confidential information in his/her possession to the Company.
Section
8. Non-Compete; Non-Solicitation.
(a) During
the period (the “Restricted Period”)
commencing on the termination of his/her employment for any reason whatsoever,
except in the event of Change in Control, during the Term of Employment and
ending one year thereafter, the Executive shall not, without express prior
written consent of the Company, directly or indirectly, own or hold any
proprietary interest in, or be employed by or receive remuneration from, any
corporation, partnership, sole proprietorship or other entity (collectively, an
“entity”)
“engaged in competition” (as defined below) with the Company or any of its
subsidiaries (a “Competitor”). For
purposes of the preceding sentence, (i) the term “proprietary interest” means
direct or indirect ownership of an equity interest in an entity other than
ownership of less than 2 percent of any class stock in a publicly-held entity,
and (ii) an entity shall be considered to be “engaged in competition” if such
entity is, or is a holding company for or a subsidiary of an entity which is
engaged in the business of (A) providing banking, trust services, asset
management advice, or similar financial services to consumers, businesses
individuals or other
entities,
and (B) the entity, holding company or subsidiary maintains any physical offices
for the transaction of such business located within 50 miles of the main office
of the Company.
(b) During
the Restricted Period, and for a period of one year thereafter, the Executive
shall not, either directly or indirectly, for himself or on behalf of or in
conjunction with any other person, company, partnership, corporation or business
of whatever nature, (i) call upon any person or entity which is or has been
within 24 months prior to the termination or other cessation of Executive’s
employment for any reason, a customer of the Company or any subsidiary (each a
“Customer”) for
the direct or indirect purpose of soliciting or selling deposit, loan or trust
products or services or (ii) induce any Customer to curtail, cancel, not renew,
or not continue their business with the Company or any subsidiary.
(c) During
the Restricted Period, and for a period of one year thereafter, the Executive
shall not, without the express prior written consent of the Company, directly or
indirectly, (i) solicit or assist any third party in soliciting for employment
any person employed by the Company or any of its subsidiaries at the time of the
termination of the Executive’s employment (collectively, “Employees”), (ii)
employ, attempt to employ or materially assist any third party in employing or
attempting to employ any Employee, or (iii) otherwise act on behalf of any
Competitor to interfere with the relationship between the Company or any of its
subsidiaries and their respective Employees.
(d) The
Executive acknowledges that the restrictions contained in this Section 8
are reasonable and necessary to protect the legitimate interests of the Company
and that any breach by the Executive of any provision contained in this Section
8 will result in irreparable injury to the Company for which a remedy at law
would be inadequate. Accordingly, the Executive acknowledges that the
Company shall be entitled to temporary, preliminary and permanent injunctive
relief against the Executive in the event of any breach or threatened breach by
the Executive of the provisions of this Section 8, in addition to any other
remedy that may be available to the Company whether at law or in
equity. With respect to any provision of this Section 8 finally
determined by a court of competent jurisdiction to be unenforceable, such court
shall be authorized to reform this Agreement or any provision hereof so that it
is enforceable to the maximum extent permitted by law. If the covenants of
Section 8 are determined to be wholly or partially unenforceable in any
jurisdiction, such determination shall not be a bar to or in any way diminish
the Company’s right to enforce such covenants in any other jurisdiction and
shall not bar or limit the enforceability of any other provisions.
(e) The
provisions of this Section 8 shall survive the termination of the Executive’s
employment with the Company for any reason whatsoever so long as the termination
of employment occurs during the Term of Employment. If there is no
termination of Executive’s employment during the Term of Employment, the
provisions of this Section 8 shall expire and be of no further force and effect
after the Term of Employment. The Company shall not be required to
post any bond or other security in connection with any proceeding to enforce the
provisions of this Section 8.
Section
9. Withholdings. The Company may directly or
indirectly withhold from any payments made under this Agreement all Federal,
State, City or other taxes and all other deductions as shall be required
pursuant to any law or regulation or pursuant to any contributory benefit plan
maintained by or on behalf of the Company.
Section
10. Notices. All notices, requests, demands and
other communications required or permitted hereunder shall be given in writing
and shall be deemed to have been duly given if delivered or mailed, postage
prepaid, by same day or overnight mail (i) if to the Executive, at the address
set forth above, or (ii) if to the Company, as follows:
The Board
Of Directors
Peapack-Gladstone
Bank
000 Xxxxx
000 Xxxxx
Xxxxxxxxx,
XX 00000
or to
such other address as either party shall have previously specified in writing to
the other.
Section
11. Binding Agreement; Assignment. This Agreement
shall be binding upon and shall inure to the benefit of, the Executive and the
Company and its successors and permitted assigns. This Agreement is
personal to the Executive and may not be assigned by him. The Company
may assign its rights and obligations under this Agreement in
connection with a sale of all or substantially all of the business of PGFC or
the Bank. Any successor to the Company by merger or consolidation
shall be entitled to the benefits of this Agreement.
Section
12. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the internal laws of the State of New
Jersey, without reference to the choice of law principles thereof.
Section
13. Dispute Resolution. At the option of either the
Company or the Executive, any dispute, controversy or question arising under,
out of or relating to this Agreement, the Executive’s employment or termination
of employment, including but not limited to any and all statutory claims
involving workplace discrimination or wrongful discharge, but excluding claims
pursuant to Sections 7 or 8 hereof, shall be referred for decision by
arbitration in the State of New Jersey by a neutral arbitrator mutually selected
by the parties hereto. Any arbitration proceeding shall be governed
by the Rules of the American Arbitration Association then in effect or such last
in effect (in the event such Association is no longer in
existence). If the parties are unable to agree upon such a neutral
arbitrator within 21 days after either party has given the other written notice
of the desire to submit the dispute, controversy or question for decision as
aforesaid, then either party may apply to the American Arbitration Association
for a final and binding appointment of a neutral arbitrator; however, if such
Association is not then in existence or does not act in the matter within 45
days of any such application, either party may apply to a judge of the local
court where the Bank is headquartered for an appointment of a neutral arbitrator
to hear the parties and such judge is hereby authorized to make such
appointment. In the event that either party exercises the right to
submit a dispute, controversy or question arising hereunder to arbitration, the
decision of the neutral arbitrator shall be final, conclusive and binding on all
interested persons and no action at law or in equity shall be instituted or, if
instituted, further prosecuted by either party other than to enforce the award
of the neutral arbitrator. The award of the neutral arbitrator may be
entered in any court that has jurisdiction. The Executive and the
Company shall each bear all their own costs (including the fees and
disbursements of counsel) incurred in connection with any such arbitration and
shall each pay one-half of the costs of any arbitrator.
Section
14. Entire Agreement. This Agreement shall
constitute the entire agreement among the parties with respect to the matters
covered hereby and shall supersede all previous written, oral or implied
understandings among them with respect to such matters.
Section
15. Amendments. This Agreement may only be amended
or otherwise modified, and compliance with any provision hereof may only be
waived, by a writing executed by all of the parties hereto. The
provisions of this Section 15 may only be amended or otherwise modified by such
a writing.
Section
16. Effect on Change-in-Control
Agreement. Notwithstanding anything else to the contrary in
this Agreement, if the Change-in-Control Agreement between the Company and the
Executive, to be dated as of March 30, 2010, becomes effective due to a
Change-in-Control of the Company (as defined therein), while the Executive
remains employed by the Company, this Agreement, including, without limitation,
Sections 7 and 8 hereof, shall no longer be effective in any respect but
instead the relationship between the Executive and the Company shall be governed
by the Change-in-Control Agreement. If the Executive is terminated
prior to a Change-in-Control of the Company, then Sections 7 and 8 hereof shall
survive any Change-in-Control.
Section
17. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, and
all of which shall together be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, PGFC and
the Bank have caused this Agreement to be duly executed by the undersigned,
thereunto duly authorized, and the Executive has signed this Agreement, all as
of the date first written above.
|
WITNESS
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PEAPACK-GLADSTONE
FINANCIAL CORPORATION
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| /s/ Xxxxxxxxxx Xxxxxx |
By:
|
/s/ Xxxxx X. Xxxxxx | |
|
Secretary
Xxxxxxxxxx Xxxxxx
|
Xxxxx X. Xxxxxx | ||
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PEAPACK-GLADSTONE
BANK
|
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| /s/ Xxxxxxxxxx Xxxxxx |
By:
|
/s/ Xxxxx X. Xxxxxx | |
|
Secretary
Xxxxxxxxxx Xxxxxx
|
Xxxxx X. Xxxxxx | ||
| /s/ Xxxxxxx X. Xxxxx | /s/ Xxxxxxx X. Xxxxxxx | ||
| Xxxxxxx X. Xxxxx |
EXECUTIVE
Xxxxxxx X. Xxxxxxx
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||
