EMPLOYMENT AGREEMENT
Employment Agreement (the "Employment Agreement") made as of this 31st
day of July, 2004, by and between XXXXX CASE, an individual residing at 0
Xxxxxxxx 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").
WHEREAS, the Board of Directors of the Employer has determined that it
is in the best interests of the Employer to enter into this Agreement with
Employee, and has authorized the Employer 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 Executive
Vice President., Loan Administration of the Employer (the "Position") to perform
such services commensurate with that capacity as are usual and customary for
comparable institutions and as shall from time-to-time be established by the
Chief Executive Officer, President and the Board of Directors of the Employer.
Employee agrees that she will devote her full business time and efforts to her
duties hereunder.
3. COMPENSATION. Employer shall pay to the Employee compensation
for her services as follows:
(a) BASE SALARY. The Employee shall be entitled to receive,
commencing upon the date of this Agreement, an annual base salary (the "Base
Salary") of $97,000, 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, President 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 her Base
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Salary hereunder may be adjusted upward or downward; provided, however, that in
no event will her 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 shall be entitled to
participate in any cash bonus program(s) established by Employer for its
executive officers, subject to the terms and conditions of any such
program(s),including the attainment of goals established by the Board of
Directors of Employer or any committee thereof.
(c) STARTING BONUS. Upon commencement of employment
hereunder, Employee shall be entitled to a signing bonus of 1,000 shares of the
common stock ( the "SBB Stock") of Sussex Bancorp, the parent company of the
Employer (the "Bonus Shares") . The Bonus Shares will be subject to forfeiture
upon termination of employment of Employee for any reason, other than a
termination without cause by Employer, until December 31, 2004. Thereafter, such
shares shall be fully vested and owned by Employee without risk of forfeiture.
The Bonus Shares shall be issued pursuant to an exemption from the Securities
Act of 1933, (the "Securities Act") and will therefore be subject to limits on
transferability. Pursuant to the requirements of the Securities Act, Employee
must hold the Bonus Shares for one (1) year. Thereafter, the Bonus Shares may
only be transferred in accordance with Securities and Exchange Commission Rule
144. The certificates representing the Bonus Shares shall bear a legend
referencing such restrictions.
(d) PRODUCTION BONUS. Provided that the Employer's net loan
portfolio at December 31, 2005 is 15% larger than Employers net loan portfolio
at December 31, 2004, Employee shall be entitled to a production bonus of 1,000
shares of SBB Stock to be delivered no later than March 31, 2006. In addition,
provided that the Employer's net loan portfolio at December 31, 2006 is 15%
larger than the Employer's net loan portfolio at December 31, 2005, Employee
shall be entitled to an additional production bonus of 1,000 shares of SBB Stock
to be delivered no later than March 31, 2007. All shares issued under this
provision shall be fully vested and owned by Employee without risk of
forfeiture, and subject to the same restrictions on transferability provided for
the Bonus Shares under subparagraph c above.
(e) STOCK OPTIONS. Employee shall be entitled to participate
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in the Employer's Executive Incentive Stock Option program for calendar year
2004 and during her employment thereafter. Employee acknowledges that any grant
she may receive will be subject to her attainment of goals required under the
program, will be subject to all terms and conditions of the program, and that
for 2004, she will be eligible for a maximum grant of options to purchase 3,750
SBB Shares, subject to proration to reflect her actual time employed by the
Employer in 2004.
4. OTHER BENEFITS; FRINGE BENEFITS. Employee shall be entitled to
receive hospital, health, medical, long-term disability 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, including but not limited to the Employer's 401(k) plan and/or the
Employee Stock Ownership Plan ("ESOP") offered by Employer to its employees
generally or to its senior management. Until such time as Employee becomes
eligible to participate in Employer's hospital, health, medical and prescription
benefit plans, Employer will reimburse Employee for Employee's actual out of
pocket costs for maintaining Employee's eligibility for her current benefits
under COBRA. In addition, Employee shall be entitled to four (4) weeks of paid
vacation each calendar year; provided, however, that for calendar year 2004,
Employee's vacation shall be prorated to reflect the percentage of the year for
which she was employed with the Employer.
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:
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(a) CAUSE. As used in this Agreement, the term "Cause" shall
mean the Employee's personal dishonesty or willful misconduct involving moral
turpitude or casting a negative light on the reputation of Employer , breach of
fiduciary duty involving personal profit, directly or indirectly to the Employee
or any person or entity affiliated, in any manner, with the Employee,
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.
(b) TERMINATION WITH CAUSE. Employer shall have the right to
terminate the Employee for "cause", upon written notice to her 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,
other than the payment to her of accrued and unpaid compensation or any other
benefits required under law .
(c) TERMINATION WITHOUT CAUSE. Upon a termination of
Employee's employment hereunder without "cause", Employee shall be entitled to
receive her then current base salary for the remaining term of this Agreement,
but in no event for less than six (6) months. 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, long-term disability 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, but in no event less than six (6)
months. The Employee shall have no duty to mitigate damages in connection with
her termination by Employer without "cause". However, if the Employee obtains
new employment and such new employment provides for hospital, health, medical,
long-term disability 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.
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(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 shall have the right to suspend all or a
portion of its obligations under this Agreement as of the date of service of
notice, 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 her employment with Employer, and
receive the payments provided for below, in the event that the Employee is not
in material breach of this Agreement and Employer (i) reassigns the Employee to
a position of lesser rank or status than the Position, or (ii) reduces the
Employee's compensation or other benefits below the amounts provided for under
Sections 3 hereof. Upon the occurrence of any of these events, the Employee
shall have thirty days to provide Employer notice of her 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 occurrence 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,
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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 her employment within
eighteen (18) months of such Change in Control following any demotion, loss of
title, office or significant authority, reduction in her annual compensation or
benefits, or relocation of her 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
Sussex Bancorp (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 Company 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
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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 two
(2) 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, long term disability and life insurance on the terms and at the
cost to Employee as Employee was receiving such benefits upon the date of her
termination. Employer's obligation to continue such insurance benefits will be
for a period of two (2) years.
9. COVENANT NOT TO COMPETE. Employee agrees that , subject to
performance by Employer or its successor in interest of its obligations under
this Agreement, during the term of her employment hereunder and for a period of
one (1) year after the termination of her employment, she will not within Sussex
County, New Jersey 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
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with the Company in the business of banking ; provided, however, that this
covenant not to compete shall not apply in the event Employee's employment
hereunder is terminated at the end of the term of this Agreement due to
Employer's decision not to extend or renew the terms of Employee's employment
with Employer. 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 Agreement shall be governed by and interpreted under the substantive
law of the State of New Jersey. All litigation in connection with this Agreement
shall be brought in the United States District Court for the District of New
Jersey or the Superior Court of the state of New Jersey sitting in Sussex
County. The parties hereto consent to , and waive any objection to jurisdiction
by, either of such courts.
(b) SEVERABILITY. If any provision of this Agreement shall
be held to be 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 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 the legal obligation of the successors and assigns of Employer.
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signature for Employment Agreement on next page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SUSSEX BANK
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
EMPLOYEE:
/s/ Xxxxx Case
---------------------------------------
Name: Xxxxx Case
Sussex Bancorp guarantees the payments described in paragraphs 6(c), 7 &
8(c) of this Agreement and executes this Agreement solely for that purpose.
SUSSEX BANCORP
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
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