EMPLOYMENT AGREEMENT
Employment Agreement (the "Employment Agreement") made as of this 23"d day
of January, 2003, by and between XXXXX XXXXXXXX, an individual residing at 00
Xxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 (the "Employee"), SUSSEX BANK, a state
chartered bank with its principal place of business located at 000 Xxxxx Xxxxxxx
00, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Employer"), and SUSSEX BANCORP, a New
Jersey corporation with its principal place of business located at 000 Xxxxx
Xxxxxxx 00, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Company").
WHEREAS, the Board of Directors of the Employer and the Board of Directors
of the Company have each determined that it is in the best interests of each of
the Employer and the Company to enter into this Agreement with Employee, and
each respective Board has authorized the Employer and the Company to enter into
this Agreement;
WHEREAS, the Employee agrees to be employed pursuant to the terms and
conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and covenants contained
herein, and with the intent to be legally bound hereby, the parties hereto
hereby agree as follows:
1. Employment. The Employer agrees to employ the Employee, and the Employee
hereby accepts such employment, upon the terms and conditions set forth herein..
2. Position and Duties. The Employee shall be employed as President of the
Employer, to perform such services in that capacity as are usual and customary
for comparable institutions and as shall from time-to-time be established by the
Chief Executive Officer and the Board of Directors of the Employer. Employee
agrees that he will devote his full business time and efforts to his duties
hereunder.
3. Cash Compensation. Employer shall pay to the Employee compensation for
his services as follows:
(a) Base Salary. The Employee shall be entitled to receive, commencing upon
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the date of this Agreement, an annual base salary (the "Base Salary") of
$110,000. which shall be payable in installments in accordance with Employer's
usual payroll method. Annually thereafter, on or prior to the anniversary date
of this Agreement, the Chief Executive Officer and Board of Directors shall
review the Employee's performance, the status of Employer and such other factors
as the Board of Directors or a committee thereof shall deem appropriate and
shall adjust the Base Salary accordingly. Employee acknowledges that his Base
Salary hereunder may be adjusted upward or downward; provided, however, that in
no event will his Base Salary be adjusted downward below the minimum base salary
established by the Employer as part of its regular annual employee review
process for employees having the same grade as Employee.
(b) Discretionary Bonus. Employee may be entitled to receive annually at
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the discretion of the Board of Directors or a committee thereof a cash bonus.
4. Other Benefits; Fringe Benefits. The Employee shall be entitled to the
exclusive and unlimited use of an automobile or a cash allowance to be used for
the purpose of maintaining an automobile of a type and style commensurate with
the Employee's status as President of the Employer. In addition, the Employee
shall be entitled to receive hospital, health, medical, and life insurance of a
type currently provided to and enjoyed by other senior officers of Employer, and
shall be entitled to participate in any other employee benefit or retirement
plans offered by Employer to its employees generally or to its senior
management.
5. Term. The term of this Agreement shall be three (3) years, commencing on
the date hereof and continuing until the third anniversary of the date hereof;
provided, however, that the term of this Agreement shall automatically renew for
one (1) additional year on the third anniversary hereof unless, at least three
(3) months prior to such anniversary date, either Employer or Employee shall
have provided the other with written notice of their intention not to extend the
term of this Agreement; further provided, however, that in the event the term of
this Agreement is so extended, it shall also automatically renew for one (1)
additional year on the fourth anniversary hereof unless, at least three (3)
months prior to such anniversary date, either Employer or Employee shall have
provided the other with written notice of their intention not to further extend
the term of this Agreement.
6. Termination. Employee may be terminated at any time, without prejudice
to Employee's right to compensation or benefits as provided herein. Employee's
rights upon a termination shall be as follows:
(a) Cause. As used in this Agreement, the term "Cause" shall mean the
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Employee's personal dishonesty, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order, or a material breach of any
provision of this Agreement. Notwithstanding the above, the Employee 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 its Board called and held for that purpose (after
reasonable notice to the Employee and an opportunity for him, together with
counsel, to be heard before such Board of Directors), finding that in the good
faith opinion of the Board of Directors, the Employee was guilty of conduct
justifying termination for cause and specifying the particulars thereof in
detail ; provided, however, that nothing contained herein shall prohibit
Employee from being suspended from his duties hereunder by a duly authorized
agent of the Board upon a good faith determination that "cause" exists. Such
suspension shall last until such time as the Board meeting provided for above
shall have occurred, provided that such Board meeting shall occur within a
reasonable period of time. During such suspension Employee shall continue to be
an employee, entitled to all salary and benefits provided for hereunder.
(b) Termination With Cause. Employer shall have the right to terminate the
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Employee for "cause", upon written notice to him of such determination,
specifying the alleged "cause". In the event of such termination, the Employee
shall not be entitled to any further benefits under this Agreement.
(c) Termination Without Cause. Upon a termination of Employee's employment
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hereunder without "cause", Employee shall be entitled to receive his then
current base salary for the remaining term of this Agreement. Such payments may
be made over the remaining term of this Agreement in periodic payments in the
same manner in which the Employee's salary was paid through the time of such
termination, or by a lump sum payment of the discounted present value of all
base salary payments through the remaining term of this Agreement. The
determination of the method of payment shall be made mutually by Employer and
the Employee; provided, however, that in the event the parties cannot agree on
the method of payment, Employer shall be entitled to choose. In addition,
Employer shall continue to provide the Employee with hospital, health, medical
and life insurance, and any other like benefits in effect at the time of such
termination through the end of the term of this Agreement. The Employee shall
have no duty to mitigate damages in connection with his termination by Employer
without "cause". However, if the Employee obtains new employment and such new
employment provides for hospital, health, medical and life insurance, and other
benefits, in a manner substantially similar to
the benefits payable by Employer hereunder, Employer may permanently terminate
the duplicative benefits it is obligated to provide hereunder.
(d) Suspension and Special Regulatory Rules.
(i) If the Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of the Employer by a
notice served under Section 8(e)(3) or Section 8(g)(1) of the
Federal Deposit Insurance Act ("FDI Act"), Employer's obligations
under this Agreement shall be suspended as of the date of
service, unless stayed by appropriate proceedings.
(ii) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of the Employer by an
order issued under Section 8(e) or Section 8(g)(1) of the FDI
Act, all obligations of Employer under this Agreement shall
terminate as of the effective date of the order and the Employee
shall not be entitled to received the payments provided for under
Paragraph (c) above.
(iii) If the Employer is in default, as defined in Section 3(x)(1) of
the FDI Act, all obligations of Employer under this Agreement
shall terminate as of the date of default.
7. Resignation for Cause. During the term of this Agreement, the Employee
shall be entitled to resign from his employment with Employer, and receive the
payments provided for below, in the event that the Employee is not in breach of
this Agreement and Employer (i) reassigns the Employee to a position of lesser
rank or status than President, or (ii) reduces the Employee's compensation or
other benefits below the amounts provided for under Sections 3 and 4 hereof.
Upon the occurrence of any of these events, the Employee shall have thirty days
to provide Employer notice of his intention to terminate this Agreement. In the
event the Employee elects to so terminate this Agreement, such termination shall
be treated as a termination without "cause" by Employer under Section 6(c)
hereof, and the Employee shall be entitled to receive all payments and other
benefits called for under such Section 6(c).
8. Change in Control.
(a) Upon the occurence of a Change in Control (as herein defined) followed
at any time during the term of this Agreement by the involuntary termination of
the Employee's employment other than for "cause", as defined in Section 6(a)
hereof, or, as provided below the voluntary termination of the Employee within
eighteen (18) months of such Change in Control, Employee shall become entitled
to receive the payments provided for under paragraph (c) below. Upon the
occurrence of a Change in Control, the Employee shall have the right to elect to
voluntarily terminate his employment within eighteen (18) months of such Change
in Control following any demotion, loss of title, office of significantly
authority, reduction in his annual compensation or benefits, or relocation of
his principal place of employment by more than thirty (30) miles from its
location immediately prior to the Change in Control.
(b) A "Change in Control" shall mean:
(i) a reorganization, merger, consolidation or sale of all or
substantially all of the assets of the Company, or a similar
transaction, in which the shareholders of the Company prior to
such transaction hold less than a majority of the voting power of
the resulting entity;
(ii) individuals who constitute the Incumbent Board (as herein
defined) of the Company cease for any reason to constitute; a
majority thereof,
(iii) an event of a nature that 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") if Employer
were a reporting company subject to the Exchange Act; or
(iv) 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 or the Employer or the trustees or any administration of
any employee stock ownership plan and trust, or any other
employee benefit plans, established by the Company or the
Employer from time-to-time in is or becomes a "beneficial owner"
(as defined in Rule 13-d under the Exchange Act) directly or
indirectly, of securities of the Employer representing 25% or
more of the Company's outstanding securities ordinarily having
the right to vote at the election of directors (the "Trigger
Amount"); provided, however, that in the event any such person
acquires the Trigger Amount in a transaction (i) which has been
approved in advance by the Incumbent Board and (ii) which does
not result in such person controlling a majority of the voting
power of the full Board of Directors of the Company, then any
such transaction shall not be deemed a Change in Control under
this subsection (iv); or
(v) A tender offer is made for 25% or more of the voting securities
of the Company and the shareholder 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 and such tendered shares have been accepted by the tender
offeror.
For these purposes, "Incumbent Board" means the Board of Directors of the
Company on the date hereof, provided that any person becoming a director
subsequent to the date hereof whose election was approved by a voting 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) In the event the conditions of Section (a) above are satisfied,
Employee shall be entitled to receive a lump sum payment equal to 2.99 times
Employee's then current Base Salary; provided, however, that in no event shall
any payments provided for hereunder constitute an "excess parachute payment"
under Section 280G of the Internal Revenue Code of 1986, as amended or any
successor thereto, and in order to avoid such a result the benefits provided for
hereunder will be reduced, if necessary, to an amount which is One Dollar
($1.00) less than an amount equal to three (3) times Employee's "base amount" as
determined in accordance with such Section 280G. In addition to the foregoing,
Employee shall be entitled to receive from Employer, or its successor, hospital,
health, medical and life insurance on the terms and at the cost to Employee as
Employee was receiving such benefits upon the date of his termination.
Employer's obligation to continue such insurance benefits will be for a period
of three (3) years.
9. Covenant Not to Compete. Employee agrees that during the term of his
employment hereunder and for a period of one (1) year after the termination of
his employment, he will not in any way, directly or indirectly, manage, operate,
control, accept employment or a consulting position with or otherwise advise or
assist or be connected with or own or have any other interest in or right with
respect to (other than through ownership of not more than five percent (5%) of
the outstanding shares of a corporation whose stock is
listed on a national securities exchange or on the National Association of
Securities Dealers Automated Quotation System) any enterprise which competes
with the Company in the financial services business in the counties in which the
Company conducts its business on the date of Employee's termination. In the
event that this covenant not to compete shall be found by a court of competent
jurisdiction to be invalid or unenforceable as against public policy, such court
shall exercise discretion in reforming such covenant to the end that Employee
shall be subject to a covenant not to compete that is reasonable under the
circumstances and enforceable by the Company. Employee agrees to be bound by any
such modified covenant not to compete.
10. Miscellaneous.
(a) Governing Law. In the absence of controlling Federal law, this
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Agreement shall be governed by and interpreted under the substantive law of the
State of New Jersey.
(b) Severability. If any provision of this Agreement shall be held to be
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invalid, void, or unenforceable, the remaining provisions hereof shall in no
way, be affected or impaired, and such remaining provisions shall remain in full
force and effect.
(c) Entire Agreement; Amendment. This Agreement sets for the entire
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understanding of the parties with regarding to the subject matter contained
herein and supersedes any and all prior agreements, arrangements or
understandings relating to the subject matter hereof and may only be amended by
written agreement signed by both parties hereto or their duly authorized
representatives.
(d) Successors and Assigns. This Agreement shall be binding upon and become
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the legal obligation of the successors and assigns of Employer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SUSSEX BANK
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
EMPLOYEE:
/s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Sussex Bancorp guarantees the payments described in paragraphs 4(b), 6(c), 7 &
8(c) of this Agreement and executes this Agreement solely for that purpose.
SUSSEX BANCORP
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
