EXHIBIT 10(b)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") made as of this 28th day
of September 2001 by and between TRI-STATE INSURANCE AGENCY, INC., a New Jersey
corporation ("Employer"), and George B. Harper, an individual residing at P.O
Box 3 Layton, NJ 07851 (the "Executive").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Stock Purchase Agreement (the
"Stock Purchase Agreement") by and among Sussex Bancorp ("Sussex"), Executive
and George Lista, Sussex is acquiring from Executive and George Lista all of the
common stock of Employer, to operate as a wholly-owned subsidiary of the Sussex
County State Bank (the "Bank");
WHEREAS, Executive is the President of the Employer, and his
continued services are crucial to the continued success of the Employer's
operation as a subsidiary of the Bank;
WHEREAS, Sussex desires to retain the Executive's services for
Employer, and Executive wishes to continue his employment with the Employer on
the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein contained, the parties hereto, intending to be legally
bound, agree as follows:
1. Employment and Term.
(a) Employer hereby employs the Executive as the President of the Employer
(the "Position") and the Executive agrees to serve in the Position, for a term
of five (5) years (the
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"Term"), which shall commence on the date hereof (the "Effective Date"), and
which, subject to paragraphs 1(b), and (c), hereof, shall terminate on the fifth
anniversary of the Effective Date, unless extended pursuant to the terms hereof.
Unless either Executive or Employer give written notice at least twelve (12)
months prior to the end of the Term of their intention not to have this
Agreement be considered to be a part of the Term hereof.
(b) Employer shall have the right to terminate the Executive's employment
hereunder prior to the fifth anniversary of the Effective Date; provided,
however, that unless such termination is for "cause", as defined below,
Executive renew, this Agreement shall automatically renew for an additional
three (3) year term (the "Additional Term") at the expiration of the Term. For
purposes of this Agreement, the Additional Term shall shall be entitled to
receive his Base Salary (as defined herein) and all insurance benefits provided
on the date of such termination for the remaining term of this Agreement. In
addition, for the remaining term of this Agreement, Executive shall be entitled
to an annual payment equal to the commissions earned by Executive under Section
3(b) hereof for the proceeding fiscal year. Such payments shall be made in
accordance with Employer's normal payroll practices. If such termination is for
"cause", Executive shall not be entitled to receive any compensation from and
after the date of such termination; provided, however, that Executive shall be
entitled to payments for periods, or partial periods, that occurred prior to the
date of termination and for which Executive has not yet been paid. For purposes
of this Agreement, "cause" means (i) the Executive's willful and continued
failure substantially to perform the duties of the Position, (ii) fraud,
misappropriation or other deliberate dishonesty of Executive with respect to
Employer's business or property, (iii) the Executive's plea of guilty to or
conviction of, or plea of nolo contendere to, any felony that, in the reasonable
judgment of the Board of Directors of Employer
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(the "Board"), adversely affects Employer's reputation or the Executive's
ability to perform his duties hereunder; or (iv) Executive's willful violation
of (A) any law, rule or regulation relating to the business of Employer , Sussex
or the Bank, or (B) final cease-and-desist order issued by or regulatory consent
agreement with any regulatory agency having jurisdiction over the Company, the
Bank or Sussex.
(c) This Agreement shall terminate upon Executive's death or his
disability, as defined herein. Upon Executive's death or his disability, the
obligation of Employer hereunder to pay Executive the compensation called for
under Section 3 hereof shall terminate, and Employer's only obligation shall be
to pay Executive any and all benefits to which Executive was entitled at the
time of such death or disability under any benefit plans of Employer then in
place. For purposes of this Agreement, the term "disability" shall mean
Executive's inability to substantially perform his material duties as prescribed
in this Agreement due to his incapacity or disability, physical or mental, for a
period of six (6) consecutive months.
2. Duties.
(a) Subject to the ultimate reasonable control and discretion of the Board
of Directors of Employer, the Executive shall serve in the Position and perform
all duties and services as President the Employer. In such capacity, Executive
shall have full authority over the day to day business operations of the
Employer, subject to the ultimate authority of the Board of Directors, shall
have the authority to retain and terminate personnel, set compensation,
determine the product lines offered by the Employer and insurance companies with
whom Employer conducts business and generally have the authority to manage the
operations of the Employer as its President.
(b) The Executive shall devote all of the Executive's professional time and
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attention to the performance of the Executive's duties hereunder and, during the
term of the Executive's employment hereunder, shall not engage in any other
business enterprise which, in the reasonable, good faith opinion of the Board,
interferes with Executive's performance of the duties set forth in subparagraph
(a) above. The foregoing shall not prevent the Executive's purchase, ownership
or sale of investment securities or of any interest in, any business which
competes with the business of Employer, provided that such ownership or
investment constitutes not more than five percent 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, or the
Executive's involvement in charitable or community activities, provided that the
time and attention which the Executive devotes to such activities does not
materially interfere with the performance of the Executive's duties hereunder.
3. Compensation.
(a) For all services to be rendered by the Executive under this Agreement,
Employer agrees to pay the Executive a salary of $50,000 annually, to be paid in
equal monthly installments (the "Base Salary");
(b) In addition to the compensation provided for under subparagraph (a)
hereof, Executive shall be entitled to receive personal commissions on the sale
of insurance products actually placed by Executive as the agent of record of 40%
of the gross commissions earned by Employer on such sales.
(c) In addition to the compensation provided for under subsections (a) and
(b) hereof, Executive shall be entitled to a bonus (the "Bonus") to be paid
annually equal to 25% of the amount by which the net before tax net income of
the Employer as a subsidiary of the Bank for each twelve (12) month period of
this Agreement exceeds the following:
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(ii) In the first twelve (12) month period after the Closing (as
defined under the Stock Purchase Agreement), $175,000;
(vi) For the second twelve (12) month period after the Closing,
$192,500;
(vii) For the third twelve (12) month period after the Closing,
$210,000;
(viii) For the fourth twelve (12) month period after the Closing,
$227,500; provided, however, that in the event Employer's net
before tax income exceeds $227,500, Executive shall be entitled
to a bonus equal to 25% of the amount by which the net before
tax income of the Employer as a subsidiary of the Bank exceeds
$210,000;
(ix) For the fifth twelve (12) month period after the Closing,
$245,000; provided, however, that in the event the Employer's
net before tax income for the fifth twelve (12) month period
after the Closing exceeds $245,000, Executive's bonus shall
equal 25% of the amount by which the net before tax income of
the Employer as a subsidiary of the Bank exceeds $210,000.
All Bonuses due hereunder shall be paid through the issuance of the common
stock, no par value (the "Common Stock") of Sussex. In determining the number of
shares to be issued in satisfaction of any Bonus due hereunder, the shares shall
be valued at their then current fair market value at the time of issuance, based
upon the average closing price of the Common Stock in the fifteen (15) trading
days prior to the day before issuance. The shares of Common Stock shall be
issued pursuant to an exemption from registration under the Securities Act of
1933, and shall be subject to restrictions on transfer necessary for the Company
to claim such exemption. In addition, the certificates representing such shares
of Common Stock shall be legended to indicate that they are so restricted.
The net income of the Employer for purposes of determining whether a Bonus
is earned and how much the Bonus shall be shall be determined in accordance with
generally accepted accounting principals consistently applied.
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(d) In addition to the compensation provided for under subsections (a), (b)
and (c), Executive shall be entitled to participate in those employee benefit
plans generally made available to executive officers of Sussex and the Bank.
4. Additional Covenants.
(a) Confidential Information. Except as required in the performance of his
duties hereunder, the Executive shall not use or disclose to any third arty any
Confidential Information (as hereinafter defined) or any know-how or experience
related thereto without the express prior written authorization of the Bank,
either during the term of this Agreement or thereafter. Upon termination of his
employment, the Executive shall leave with Employer all documents and other
items in his possession which contain Confidential Information, and shall be
prohibited from disclosing to any third party any Confidential Information. For
purposes of this paragraph 5(a), the term "Confidential Information" shall mean
all information about Employer, Sussex and/or the Bank or relating to any of
their respective services or any phase of their respective operations not
generally known to any of their competitors and which is treated by Employer,
Sussex and/or the Bank as confidential information, and shall specifically
include all customer lists of Employer, Sussex and/or the Bank.
The term "Confidential Information" shall not include any of the foregoing
which (i) is in the public domain, (ii) is in Executive's lawful possession
prior to a disclosure thereof and not subject to a confidentiality agreement or
(iii) is hereafter lawfully disclosed to Executive by a third party who or which
did not acquire the information under an obligation of confidentiality to
Employer.
(b) Non-Compete. Executive hereby agrees that for the Covenant Term (as
defined below), he will not work for any entity which is engaged in competition
with Employer,
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Sussex or the Bank as of the Term of this Agreement and as of the date of its
termination nor himself so engage during such Covenant Term, directly or
indirectly, as principal, agent, partner, shareholder, consultant, or employee,
in any such business in competition with Employer, Sussex or the Bank as of the
Term of this Agreement and as of the date of its termination; provided, however,
that the parties agree that those positions listed on Schedule 4(b) hereto shall
not be deemed to be in competition with Employer, Sussex or the Bank and shall
not be prohibited hereunder. For purposes of this provision, the "Covenant Term"
shall mean the Term of this Agreement and, in the event that Executive has not
provided the required notice under Section 1(a) hereto of his intention not to
renew this Agreement, for such additional period of months as Executive was
required to give notice under Section 1(a) and failed to provide such notice
(i.e., should Executive provide notice three (3) months before the end of the
Term that he does not intend for this Agreement to renew for the Additional
Term, the Covenant Term shall be a period of nine (9) months after the
termination of this Agreement); further provided, however, that in the event
Executive's employment is terminated pursuant to Section 1(b) hereof, the
Covenant Term shall be extended to run contemporaneously with the period during
which Executive receives payments under Section 1(b ).
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(c) Non-Solicitation.
(i) Executive agrees that for a period of six (6) months following
the termination of this Agreement, he will not recruit for
employment or induce to terminate his or her employment with
Employer, Sussex or the Bank any person who is, at the time of
such solicitation, or who was within thirty (30) days of such
solicitation, an employee of Employer, Sussex or the Bank.
(ii) Executive agrees that for a period of six (6) months following
the termination of this Agreement, he will not directly or
indirectly solicit, cause any other person to solicit, or assist
any other person with soliciting any customer, depositor or
borrower of Employer, Sussex or the Bank to become a customer,
depositor or borrower of another financial institution.
(d) Modification. If a court of competent jurisdiction determines that the
scope, time duration or other limitations of any of the restrictive covenants
contained in this Section 4 are not reasonably necessary to protect the
legitimate business interests of Employer, Sussex or the Bank, then such scope,
time duration or other limitations will be deemed to become and thereafter will
be the maximum time period or scope which such court deems reasonable and
enforceable.
(e) Definitions. For purposes of this Section 4, to act "directly or
indirectly" means to act personally or through an associate, affiliate, family
member or otherwise, as proprietor, partner, shareholder, director, officer,
employee, agent, consultant or in any other capacity or manner whatsoever.
(f) Specific Performance. Employer and the Executive agree that in the
event of a breach of the provisions of this Section 4, the injury which would be
suffered by Employer, Sussex or the Bank would be of a character which could not
be fully compensated for solely by a recovery of monetary damages. Accordingly,
Executive agrees that in the event of a breach of the terms of this Section 4,
in addition to and not in lieu of any other remedies which Employer may pursue,
Employer shall have the right to equitable relief, including issuance of a
temporary
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or permanent injunction by any court of competent jurisdiction against the
commission or continuance of any breach of this Section 4.
5. Notices. Any and all notices, demands or requests required or permitted
to be given under this Agreement shall be given in writing and sent, (i) by
registered or certified U.S. mail, return receipt requested, (ii) by hand, (iii)
by overnight courier or (iv) by telecopier addressed to the parties hereto at
their addresses set forth above or such other addresses as they may from
time-to-time designate by written notice, given in accordance with the terms of
this Section, together with copies thereof as follows:
In the case of Executive, with a copy to:
In the case of Employer, with a copy to:
Windels Marx Lane & Mittendorf, LLP
120 Albany Street, 6th Floor
New Brunswick, New Jersey 08901
Telecopier No. (732) 846-8877
Attention: Robert A. Schwartz
Notice given as provided in this Section shall be deemed effective: (i) on
the date hand delivered, (ii) on the first business day following the sending
thereof by overnight courier, (iii) on the seventh calendar day (or, if it is
not a business day, then the next succeeding business day thereafter) after the
depositing thereof into the exclusive custody of the U.S. Postal Service or (iv)
on the date telecopied.
6. Assignability. The services of the Executive hereunder are personal in
nature, and neither this Agreement nor the rights or obligations of Executive
hereunder may be assigned, whether by operation of law or otherwise. This
Agreement shall be binding upon, and inure to
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the benefit of, Employer and its Successors and assigns. This Agreement shall
inure to the benefit of the Executive's heirs, executors, administrators and
other legal representatives.
7. Waiver. The waiver by Employer or the Executive of a breach of any
provision of this Agreement by the other shall not operate or be construed as a
waiver of any subsequent or other breach hereof.
8. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey without giving effect to
principles of conflict of laws.
9. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the subject matter hereof and may not be amended,
waived, changed, modified or discharged, except by an agreement in writing
signed by the parties hereto.
10. Counterparts. This Employment Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one and the same instrument.
11. Amendment. This Employment Agreement may be modified or amended only by
an amendment in writing signed by both parties.
12. Severability. If any provision of this Employment Agreement shall be
held invalid or unenforceable, such invalidity or unenforceability shall attach
only to such provision, only to the extent it is invalid or unenforceable, and
shall not in any manner affect or render invalid or unenforceable any other
severable provision of this Agreement, and this Agreement shall be carried out
as if any such invalid or unenforceable provision were not contained herein.
13. Section Headings. The headings contained in this Agreement are solely
for convenience of reference and shall be given no effect in the construction or
interpretation of this Employment Agreement.
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14. Fees and Expenses. If any party to this Employment Agreement institutes
any action or proceeding to enforce this Employment Agreement, the prevailing
party in such action or proceeding shall be entitled to recover from the
non-prevailing party all legal costs and expenses incurred by the prevailing
party in such action, including, but not limited to, reasonable attorneys' fees
and other reasonable legal costs and expenses.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement under their
respective hands and seals as of the day and year first above written.
ATTEST: TRI-STATE INSURANCE AGENCY, INC.
___________________________ By:_________________________________
WITNESS: EXECUTIVE:
/s/ George B. Harper
--------------------------- ------------------------------------
George B. Harper
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