EMPLOYMENT AGREEMENT COMMERCE BANCORP, INC. DOUGLAS J. PAULS EFFECTIVE DATE JANUARY 1, 2005
COMMERCE
BANCORP, INC.
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
EFFECTIVE
DATE JANUARY 1, 2005
EMPLOYMENT
AGREEMENT INDEX
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1.
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Employment
and Term of Employment.
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1
|
|
2.
|
Services
and Duties.
|
2
|
|
3.
|
Compensation.
|
2
|
|
4.
|
Plans
and Fringe Benefits.
|
2
|
|
5.
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Termination
by Commerce for Cause.
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3
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|
6.
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Disability
and Death.
|
3
|
|
7.
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Termination
by Commerce without Cause and Termination for Good
Reason.
|
4
|
|
8.
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Change
in Control and Good Reason.
|
6
|
|
9.
|
Confidential
Information and Non-Competition.
|
7
|
|
10.
|
Successors
and Assigns.
|
9
|
|
11.
|
Assignment.
|
9
|
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12.
|
Source
of Payment and Timing.
|
10
|
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13.
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Interest.
|
10
|
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14.
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Reimbursement
of Enforcement Expenses.
|
10
|
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15.
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Notices.
|
10
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16.
|
General
Provisions.
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11
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This
Agreement is dated effective as of January 1, 2005, by and between COMMERCE
BANCORP, INC.
(“Commerce”),
a New
Jersey business corporation, and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
(“Pauls”
or
“Pauls”).
BACKGROUND
Pauls
is
the Senior Vice President/Chief Financial Officer (“CFO”)
of
Commerce Bank, N.A. (“CB”),
a
national banking association and a wholly-owned subsidiary of Commerce. The
Board of Directors of Commerce (the “Board”)
has
determined that the future services of Pauls in these capacities will be of
value to Commerce, CB and Commerce’s other present and future subsidiaries.
Accordingly, the Board wishes to have Pauls’ services available to Commerce for
at least two years and to provide supplemental benefits to Pauls should his
employment with Commerce terminate under certain circumstances or should he
die
or become disabled before the termination of this Agreement.
NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements contained here, and
intending to be legally bound, the parties agree as follows:
1. Employment
and Term of Employment.
1.1 Commerce
offers Pauls employment, and Pauls accepts such employment, subject to all
the
terms and conditions of this Agreement, for a term of two years beginning on
the
date stated above, and, subject to automatic renewal and extension as stated
below and to Commerce’s and Pauls’ right to terminate his employment as stated
below. Notwithstanding anything provided to the contrary, on each Anniversary
Date of this Agreement, this Agreement and Pauls’ employment shall automatically
be renewed and extended (upon the same terms and conditions) for a new two
year
term unless written notice by either party is given pursuant to Section 1.2
below. “Term”
means
the original two-year employment period, as well as any renewed or extended
periods as provided for in this Agreement. “Anniversary
Date”
means
May 1, 2006, as well as each annual May 1 thereafter if this Agreement is
automatically renewed or extended.
1.2 Either
party may terminate this Agreement on any Anniversary Date of this Agreement
by
giving to the other party written notice of termination no later than April
1
before any such Anniversary Date. As a result of the foregoing notice being
given to either party, the Term will have one (1) year remaining from the
applicable Anniversary Date, subject to the terms and conditions of this
Agreement.
2. Services
and Duties.
2.1 During
the Term, Pauls shall be employed as Senior Vice President/Chief Financial
Officer of Commerce. Subject to the approval of the CB Board of Directors,
during the Term, Pauls shall also serve as the Senior Vice President/Chief
Financial Officer of CB. Subject to the approval of the respective Boards of
Directors, during the Term, Pauls shall also serve as an officer and/or director
of such other subsidiaries of Commerce as such Board of Directors, with the
consent of Pauls, shall designate. Pauls shall have such powers and duties
as
may from time to time be prescribed by the respective chief executive officers
and Boards of Directors, provided that such duties are consistent with his
present duties. Pauls agrees to accept such employment, and to devote his full
time and efforts to the business and affairs of Commerce and its subsidiaries,
and to use his best efforts to promote the interests of Commerce and its
subsidiaries.
3. Compensation.
3.1 Commerce
shall pay the following compensation to Pauls for all services to be rendered
by
him under this Agreement and for all positions held by him during the Term,
payable at regular intervals in accordance with Commerce’s normal payroll
practices now or subsequently in effect: “base
salary”
at
the
rate of not less than $450,000 per year, subject to an annual review and subject
to such upward adjustments as may be deemed appropriate by the Board or a
Board-designated Committee. For this Agreement, a “year”
shall
be deemed to commence on January 1, 2005, and on January 1 of each subsequent
calendar year. Compensation for a portion of a year shall be pro-rated. The
Board or such Committee may recommend an increase in salary for Pauls, but
shall
have no obligation to do so. Base salary once increased by the Board or a
Board-designated Committee may not be decreased.
3.2 During
the Term, Commerce will reimburse Pauls for all expenses incurred by Pauls
which
Commerce determines to be reasonable and necessary (in accordance with its
normal reimbursement practices now or subsequently in effect) for Pauls to
carry
out his duties under this Agreement.
4. Plans
and Fringe Benefits.
4.1 During
the Term, Pauls shall be entitled to participate in any bonus programs,
incentive compensation plans, stock option plans or similar benefit or
compensation programs now or hereafter in effect which are generally made
available from time to time to executive officers of Commerce. For any period
less than a full year during the Term, Pauls shall receive an amount equal
to
the prorated portion of the compensation payable pursuant to such plan or
program.
4.2 During
the Term, Pauls shall also be entitled to: (a) participate in all fringe
benefits as then in effect that are generally available to Commerce’s salaried
officers including, without limitation, medical and hospitalization coverage,
life insurance coverage and disability coverage; and (b) such other fringe
benefits as the Board, or a designated Committee, shall deem appropriate;
provided that such benefits are consistent with those that he currently enjoys
including, without limitation, use of an automobile and paid holidays and
vacations.
5. Termination
by Commerce for Cause.
5.1 Commerce
shall have the right at any time to terminate Pauls’ employment, for cause, on
thirty days’ prior written notice to Pauls. For this Agreement, the term “for
cause” means only the following:
(i) If
at any
time during the Term, Pauls is indicted for, convicted of or enters a plea
of
guilty or nolo contendere to, a felony, a crime of falsehood or a crime
involving fraud, moral turpitude or dishonesty; or
(ii) If
at any
time during the Term, Pauls willfully violates any of the covenants or
provisions of this Agreement including, without limitation, the willful failure
of Pauls to perform his duties hereunder or the instructions of the Board after
written notice of such instructions (other than any such failure resulting
from
Pauls’ incapacity due to illness or disability) or Pauls engages in any conduct
materially harmful to Commerce’s business, and in either case fails to cease
such conduct or correct such conduct, as the case may be, within thirty days
subsequent to receiving written notice from the Board advising Pauls of same
(which conduct shall be specifically set forth in such notice).
5.2 If
Pauls’
employment shall terminate for cause, then Commerce shall pay Pauls his full
base salary through the date of termination at the rate in effect at the time
notice of termination is given and Commerce shall have no further obligations
to
Pauls under this Agreement other than to pay Pauls such other compensation
as
may be due Pauls pursuant to Sections 4.1 and 4.2 above.
6. Disability
and Death.
6.1 If
Pauls
becomes permanently disabled while employed during the Term, then Commerce
shall
compensate Pauls for the balance of the Term at a rate equal to 70% of his
base
annual salary at the time he became permanently disabled. Commerce agrees that
it will make the payments due under this Section 6.1 on the first day of each
month, commencing with the first day of the month following the month in which
Pauls is deemed to be permanently disabled, in an amount equal to 1/12 of 70%
of
Pauls’ base annual salary at the time he is deemed to be permanently disabled.
Such payments shall be reduced each month, however, by the amount of any
disability payments made to Pauls under any Commerce-sponsored disability
insurance plan. The amount of the reduction under the preceding sentence shall
be computed as
if
Pauls
had elected to receive monthly payments of disability benefits (regardless
of
the actual payment frequency). If Pauls becomes permanently disabled as provided
in this Section 6, then he shall nonetheless continue, after becoming so
disabled and until the end of the Term, to be entitled to receive at Commerce’s
expense such group hospitalization coverage, life insurance coverage and
disability coverage as is generally made available from time to time to
executive officers of Commerce, if and to the extent permitted by the respective
insurers of such coverage. Until such time as Pauls is deemed to be permanently
disabled, Pauls shall continue to receive his full base salary and other
compensation and fringe benefits due him under Sections 4.1 and 4.2
above.
6.2 For
this
Agreement, Pauls shall be deemed to have become “permanently
disabled”
upon
his failure to render services of the character contemplated by this Agreement,
because of his physical or mental illness or other incapacity beyond his
control, other than his death, for a continuous period of 6 months, or for
shorter periods aggregating more than 9 months in any 18 consecutive
months.
6.3 If
Pauls
dies during the Term while employed hereunder, then his employment and his
rights to compensation hereunder shall automatically terminate at the close
of
the calendar week in which death occurs; and, in addition to his full base
salary to the date of termination and any compensation due him as provided
in
Section 4.1. above, Commerce shall pay to such person as Pauls shall designate
in a notice filed with Commerce or, if no such person shall be designated,
to
his estate, as a lump sum death benefit, an amount equal to the product of:
(A)
Pauls’ average annual base salary in effect during the twenty-four months
immediately preceding his death; and (B) two. The foregoing death benefit shall
be in addition to any amount payable under any group life insurance program
maintained by Commerce or any of its subsidiaries.
7. Termination
by Commerce without Cause and Termination for Good
Reason.
7.1 If
Commerce shall terminate Pauls’ employment other than for cause or as provided
in Section 1.2 above, then:
(i) Commerce
shall pay to Pauls his full base salary through the date of termination and
any
compensation when due him as provided in Section 4.1 above; and
(ii) In
lieu
of any further salary payments to Pauls for a period subsequent to the date
of
termination, Commerce shall pay as severance pay to Pauls a lump sum severance
payment (the “Severance
Payment”)
equal
to the amount of Pauls’ base salary which is in effect on the date of
termination and which would have been paid to Pauls between the date of
termination and the end of the then Term had Pauls continued to be employed
by
Commerce to the end of the then Term.
7.2 If
Pauls
shall terminate his employment for “Good
Reason”
(as
defined in section 8.2 below) then:
(i) Commerce
shall pay to Pauls his full base salary through the date of termination and
any
compensation when due him as provided in Section 4.1 above; and
(ii) In
lieu
of any further salary payments to Pauls for a period subsequent to the date
of
termination, Commerce shall pay as severance pay to Pauls a lump sum severance
payment (the “Severance
Payment”)
equal
to four times Pauls’ average annual base salary in effect during the twenty-four
months immediately preceding such termination.
7.3 Upon
termination of Pauls’ employment as set forth in either Section 7.1 or 7.2
above, Commerce shall promptly determine the aggregate present value pursuant
to
Section 280G(d)(4) of the Internal Revenue Code of 1986, as amended (the
“Code”)
of all
amounts payable to Pauls under this Agreement, and of all other amounts payable
to Pauls upon or by reason of his termination which are determined in good
faith
by Commerce to be “parachute
payments”
(as
defined in section 280G(b)(2) of the Code and the regulations promulgated
thereunder) made pursuant to agreements or plans which are subject to section
280G. Commerce’s determination of present value and of other amounts
constituting “parachute payments” is binding; provided that if Pauls obtains an
opinion of counsel satisfactory to Commerce or an Internal Revenue Service
ruling to the effect that the method of determining present value was improper
or that specified payments did not constitute “parachute payments,” calculations
will be made in accordance with such opinion or ruling. In the event the
aggregate present value of all benefits under this Agreement and other
“parachute payments” is equal to or in excess of 300% of Pauls’ “base
amount”
as
defined in Section 280G(b)(3)(A) and the regulations thereunder, Pauls waives
the right to “parachute payments” sufficient to reduce the present value of all
such payments below 300% of the “base amount.” Pauls shall have the right to
designate those benefits which shall be waived or reduced in order to comply
with this provision but failing designation by Pauls, Commerce may designate
those benefits which may be waived or reduced. If it is established pursuant
to
a final determination of a court of competent jurisdiction or an Internal
Revenue service proceeding that, notwithstanding the good faith of Pauls and
Commerce in applying the terms of this Section 7, the aggregate “parachute
payments” paid to or for Pauls’ benefit are in an amount that would result in
any portion of such “parachute payments” not being deductible by Commerce or any
affiliate by reason of Section 280G of the Code, then Pauls shall have an
obligation to pay Commerce upon demand
an
amount equal to the sum of (i) the excess of the aggregate “parachute payments”
paid to or for Pauls’ benefit without any portion of such “parachute payments”
not being deductible by reason of Section 280G of the Code and (ii) interest
on
the amount set forth in clause (i) above at the applicable federal rate (as
defined in Section 1274(d) of the Code) from the date of Pauls’ receipt of such
excess until the date of such payment.
7.4 In
addition to the other compensation set forth in either Section 7.1 or 7.2 above,
upon termination of Pauls’ employment as set forth in either Section 7.1 or 7.2
above, Pauls shall be entitled to the following benefits from
Commerce:
(i)
Following the date of termination, Pauls shall be entitled to participate in
all
Commerce medical, disability, hospitalization and life insurance benefits for
a
period of three years except that should subsequent employment be accepted
during the three year period following the date of termination, continuation
of
any medical, disability, hospitalization and life insurance benefits will be
offset by coverages provided through Pauls’ subsequent employer.
7.5 Except
as
provided in this Section 7, nothing in this Agreement shall affect or have
any
bearing on Pauls’ entitlement to other benefits under any plan or program
providing benefits by reason of termination of employment.
7.6 Pauls
shall have the right to terminate his employment for “Good
Reason”
(as
defined in Section 8.2 below) if he shall first give Commerce not less than
thirty days written notice of his intention to so terminate his employment
specifying the reason(s) for such termination and the date of termination,
and
thereafter Commerce shall not have cured or remedied the reason(s) for such
termination prior to the date of termination set forth in such
notice.
7.7 Anything
in this Agreement to the contrary notwithstanding, Pauls shall not be required
to mitigate the amount of any payment provided for in this Agreement by seeking
other employment.
8. Change
in Control and Good Reason.
8.1 For
this
Agreement, a “change
of control”
of
Commerce means a change in control of Commerce or CB of a nature that would
be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”),
as
enacted and enforced on the date hereof, whether or not Commerce or CB is
subject to such reporting requirement; provided that without limitation such
a
change in control shall have been deemed to conclusively occur when any of
the
following events shall have occurred without Pauls’ prior written
consent:
(i) within
any period of two consecutive years during the Term, a change in at least a
majority of the members of the Board or the addition of five or more new members
to the Board unless such change or addition occurs with the affirmative vote
in
writing of Pauls in his capacity as a director or a shareholder; or
(ii) a
Person
or group acting in concert as described in Section 13(d)(2) of the Exchange
Act
holds or acquires beneficial ownership within the meaning of Rule 13d-3
promulgated under the Exchange Act of a number of common shares of Commerce
which constitutes either (a) more than fifty percent of the shares which voted
in the election of directors of Commerce at the shareholders’ meeting
immediately preceding such determination or (b) more than thirty percent of
Commerce’s outstanding common shares. For purposes of this Section 8.1(ii)(b),
unexercised warrants or options or unconverted nonvoting securities shall count,
for this purpose, as constituting beneficial ownership of Commerce’s common
shares into which the warrants or options are exercisable or the nonvoting
convertible securities are convertible, notwithstanding anything to the contrary
contained in Rule 13d-3 of the Exchange Act.
8.2 For
this
Agreement, “Good
Reason”
means:
(i) a change in control of Commerce (as defined in Section 8.1 above) and within
three years thereafter, without Pauls’ consent, the nature and scope of Pauls’
authority with Commerce or a surviving or acquiring Person are materially
reduced to a level below that which he enjoys on the date hereof, the duties
and
responsibilities assigned to Pauls are materially inconsistent with that which
he has on the date of this Agreement, the fringe benefits which Commerce
provides Pauls on the date of this Agreement or at any time hereafter are
materially reduced, Pauls’ position or title with Commerce or the surviving or
acquiring person is reduced from his current position or title with Commerce,
or
any relocation or transfer of Commerce’s principal executive offices to a
location more than fifty miles from Pauls’ principal residence on the date
hereof without Pauls’ consent; (ii) Commerce materially breaches this Agreement;
or (iii) the failure or refusal of any successor to Commerce to assume all
duties and obligations of Commerce under this Agreement.
9. Confidential
Information and Non-Competition.
9.1 Pauls
covenants and agrees that he will not, during the term of his employment or
at
any subsequent time, except with the express prior written consent of the Board,
directly or indirectly disclose, communicate or divulge to any Person, or use
for the benefit of any Person, any knowledge or information with respect to
the
conduct or details of Commerce’s business which he, acting reasonably, believes
or should believe to be of a confidential nature and the disclosure of which
to
not be in Commerce’s interest.
9.2 Pauls
covenants and agrees that he will not, during the term of his employment, except
with the express prior written consent of the Board, directly or indirectly,
whether as employee, owner, partner, consultant, agent, director, officer,
shareholder or in any other capacity, engage in or assist any Person to engage
in any act or action which he, acting reasonably, believes or should believe
would be harmful or inimical to the interests of Commerce.
9.3 (A)
Pauls
covenants and agrees that he will not, except with the express prior written
consent of the Board, in any capacity (including, but not limited to, owner,
partner, shareholder, consultant, agent, employee, officer, director or
otherwise), directly or indirectly, for his own account or for the benefit
of
any Person, establish, engage or participate in or otherwise be connected with
any commercial banking business which conducts business in any geographic area
in which Commerce and its subsidiaries is then conducting such business except
that the foregoing shall not prohibit Pauls from owning as a shareholder less
than 5% of the outstanding voting stock of an issuer whose stock is publicly
traded.
(B) The
provisions of Section 9.3(A) shall be applicable commencing on the date of
this
Agreement and ending on one of the following periods, as
applicable:
(i) If
this
Agreement is terminated by Commerce in accordance with the provisions of Section
1.2 of this Agreement, the effective date of termination of this
Agreement;
(ii)
If this
Agreement is terminated by Pauls in accordance with the provisions of Section
1.2 of this Agreement, one year following the effective date of termination
of
this Agreement;
(iii)
If
Commerce terminates this Agreement in accordance with the provisions of Section
5.1 of this Agreement or the Pauls voluntarily terminates his employment, one
year following the effective date of termination of this Agreement; or
(iv)
If
this Agreement is terminated in accordance with the provisions of either Section
7.1 or 7.2 of this Agreement, one year following the effective date of
termination of this Agreement.
9.4 The
parties agree that any breach by Pauls of any of the covenants or agreements
contained in this Section 9 will result in irreparable injury to Commerce for
which money damages could not adequately compensate Commerce and therefore,
in
the event of any such breach, Commerce shall be entitled (in addition to any
other rights and remedies which it may have at law or in equity) to have an
injunction issued by any competent court enjoining and restraining Pauls and/or
any other Person involved from continuing such breach. The existence of any
claim or cause of action which Pauls may have against Commerce or any other
Person (other than a claim for Commerce’s breach of this Agreement for failure
to make payments hereunder) shall not constitute a defense or bar to the
enforcement of such covenants. In the event of any alleged breach by Pauls
of
any of the covenants or agreements contained in this Section 9, Commerce shall
continue any and all of the payments due Pauls under this Agreement until such
time as a Court shall enter a final and unappealable order finding such a
breach; provided, that the foregoing shall not preclude a Court from ordering
Pauls to repay such payments made to him for the period after the breach is
determined to have occurred or from
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ordering
that payments hereunder be permanently terminated in the event of a material
and
willful breach.
9.5 If
any
portion of the covenants or agreements contained in this Section 9, or the
application hereof, is construed to be invalid or unenforceable, the other
portions of such covenant(s) or agreement(s) or the application thereof shall
not be affected and shall be given full force and effect without regard to
the
invalid or unenforceable portions to the fullest extent possible. If any
covenant or agreement in this Section 9 is held to be unenforceable because
of
the area covered, the duration thereof, or the scope thereof, then the court
making such determination shall have the power to reduce the area and/or
duration and/or limit the scope thereof, and the covenant or agreement shall
then be enforceable in its reduced form.
9.6 For
purposes of this Section 9, the term “Commerce”
shall
include Commerce, any successor of Commerce under Section 10 hereof, and all
present and future direct and indirect subsidiaries and affiliates of Commerce
including, but not limited to, CB.
10. Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon any corporate or
other successor of Commerce which will acquire, directly or indirectly, by
merger, consolidation, purchase, or otherwise, all or substantially all of
the
assets of Commerce, and shall otherwise inure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors, administrators,
successors and assigns. Upon the death of Pauls, any payments or benefits
otherwise due Pauls hereunder shall be paid to or be for the benefit of Pauls’
legal representatives. Nothing in the Agreement shall preclude Commerce from
consolidating or merging into or with or transferring all or substantially
all
of its assets to another Person. In that event, such other Person shall assume
this Agreement and all obligations of Commerce in this Agreement. Upon such
a
consolidation, merger, or transfer of assets and assumption, the term “Commerce”
as used in this Agreement, shall mean such other Person and this Agreement
shall
continue in full force and effect.
11. Assignment.
Neither
this Agreement nor any rights to receive payments hereunder shall be voluntarily
or involuntarily assigned, transferred, alienated, encumbered or disposed of,
in
whole or in part, without Commerce’s prior written consent and approval, and
shall not be subject to anticipation, levy, execution, garnishment, attachment
by, or interference or control of, any creditor.
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12. Source
of Payment and Timing.
12.1 All
payments provided under this Agreement shall be paid in cash from the general
funds of Commerce, no special or separate fund shall be required to be
established and Pauls shall have no right, title or interest whatsoever in
or to
any investment which Commerce may make to aid Commerce in meeting its
obligations hereunder except to the extent that Commerce shall, in its sole
and
absolute discretion, choose to designate any of its rights it may have under
one
or more life insurance policies it may obtain to cover any of its obligations
under this Agreement. Nothing contained in this Agreement, and no action taken
pursuant to its provisions, shall
create or be construed to create a trust of any kind or fiduciary relationship
between Commerce and Pauls or any other Person.
12.2 All
payments due Pauls under Sections 5.1, 6.3, 7.1 or 7.2 above shall be made
not
later than the thirtieth day following the date of termination of
employment.
13. Interest.
In
the
event any benefits due to Pauls are not paid when due hereunder, Pauls shall
be
entitled (in addition to his other rights and remedies) to interest on the
past
due amounts at a rate equal to two percentage points above the prime rate
charged from time to time by CB, such interest to commence on the date a benefit
was due hereunder.
14. Reimbursement
of Enforcement Expenses.
If
Commerce fails to pay or provide Pauls any of the amounts due him under this
Agreement or fails to provide Pauls with any of the other benefits due him
under
this Agreement, and provided Commerce does not cure any such failure within
thirty days after having received written notice from Pauls of such failure,
Pauls shall be entitled to full reimbursement from Commerce for all costs and
expenses (including reasonable attorneys’ fees and costs) incurred by Pauls in
enforcing his rights under this Agreement.
15. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed, certified or registered mail, return receipt requested, with postage
prepaid, to the following addresses or to such other address as either party
may
designate by like notice:
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If
to Commerce, to:
|
Commerce
Bancorp, Inc.
Commerce
Atrium
▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
|
Attn:
|
▇▇▇▇▇▇
▇. ▇▇▇▇, ▇▇
Chief
Executive Officer
|
and
to
such other or additional person or persons as either party shall have designated
to the other party in writing by like notice.
16. General
Provisions.
16.1 This
Agreement constitutes the entire agreement between the parties concerning its
subject matter, and supersedes and replaces all prior agreements between the
parties. No amendment, waiver or termination of any of the provisions of this
Agreement shall be effective unless in writing and signed by the party against
whom it is sought to be enforced. Any written amendment, waiver or termination
hereof executed, by Commerce and Pauls (or his legal representatives) shall
be
binding upon them and upon all other Persons, without the necessity of securing
the consent of any other Person including, but not limited to, Pauls’ wife, and
no Person shall be deemed to be a third party beneficiary under this Agreement
except to the extent provided under Section 12.1 above.
16.2 CB
or any
other subsidiary of commerce may make payments to Pauls hereunder in lieu of
payments to be made by Commerce, and to the extent such payments are so made,
Commerce shall be released of its obligations to make such
payments.
16.3 The
benefits provided under this Agreement shall be in addition to and shall not
affect the proceeds payable to Pauls’ beneficiaries under group life insurance
policies which Commerce may be carrying on Pauls’ life.
16.4 “Person”
as
used
in this Agreement means a natural person, joint venture, corporation, sole
proprietorship, trust, estate, partnership, cooperative, association, non-profit
organization or any other legal entity.
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16.5 This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one and
the
same Agreement.
16.6 Except
as
otherwise expressly stated in this Agreement, no failure on the part of any
party to this Agreement to exercise and no delay in exercising any right, power
or remedy under this Agreement shall operate as a waiver; nor shall any single
or partial exercise of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
remedy.
16.7 Commerce
and Pauls consent to the exclusive jurisdiction of the courts of the State
of
New Jersey and the United States District Court for the District of New Jersey
in any and all actions arising hereunder and irrevocably consent to service
of
process as set forth in Section 15 above.
16.8 The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall in no way restrict or modify any of the terms or
provisions of this Agreement.
16.9 This
Agreement shall be governed and construed and the legal relationships of the
parties determined in accordance with the laws of the State of New Jersey
applicable to contracts executed and to be performed solely in the State of
New
Jersey.
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COMMERCE
BANCORP, INC.
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(Corporate
Seal)
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By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
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▇▇▇▇▇▇
▇. ▇▇▇▇, ▇▇
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President
and Chief Executive Officer
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Attest:_____________________________
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/s/
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ (SEAL)
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Page
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| Employment Agreement |
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DJP
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