EMPLOYMENT AND CHANGE
OF CONTROL AGREEMENT
THIS
EMPLOYMENT AND CHANGE OF CONTROL AGREEMENT (this
“Agreement”) is made and entered as of the 1st day of
January, 2010 by and among NewBridge Bancorp, a North Carolina
corporation (the “Bancorp”), “NewBridge
Bank” (the “Bank”) (the Bancorp and the Bank are
collectively referred to as the “Employer”), and
Pressley A. Ridgill (“Executive”).
WHEREAS, the
expertise and experience of Executive, and Executive’s
relationships and reputation in the financial institutions industry
are extremely valuable to the Employer; and
WHEREAS, it is in
the best interests of the Employer to maintain an experienced and
sound executive management team to manage the Employer and to
further the Employer’s overall strategies to protect and
enhance the value of its shareholders’ investments;
and
WHEREAS, the
Employer and Executive desire to enter into this Agreement to
establish the scope, terms and conditions of Executive’s
employment by the Employer
NOW, THEREFORE, in
consideration of the foregoing and of the mutual covenants and
agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Effective Date . The effective time and date of this
Agreement shall be deemed to be 12:00:01 o’clock, a.m., on
the date of its making set forth above (the “Effective
Date”).
2.
Definitions . The following defined terms are defined in the
referenced Sections of this Agreement.
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Term
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Section
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Section 8(a)(i)(A)
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Section 6(a)
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Section 9(b)
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Section 6
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Section 12(a)
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Section 6(c)
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Section 12(a)
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Section 7(b)
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Section 9(b)
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Change of
Control Termination
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Section 9(a)
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Change of
Control Termination Date
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Section 9(a)
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Section 4
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Term
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Section
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Section 9(c)(ii)
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Section 14(d)
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Section 7(f)
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Section 7(a)
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Disability
Effective Date
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Section 7(a)
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Section 1
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Section 4
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Section 14(d)
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Section 7(c)
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Section 9(b)
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Section 9(b)
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Section 8(b)
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Section 9(b)
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Section 7(e)
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Section 8(b)
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Section 8(b)
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Section 9(b)
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Remaining
Employment Period
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Section 8(a)(i)(B)
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Section 12(a)
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Section 4
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Section 4
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Section 6(d)
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3.
Employment . Executive is employed as the President and
Chief Executive Officer of Bancorp and the Bank. Executive’s
responsibilities, duties, prerogatives and authority in such
executive offices, and the clerical, administrative and other
support staff and office facilities provided to him, shall be those
customary for persons holding such executive offices of
institutions that are a part of the financial institutions
industry.
4.
Employment Period . Unless earlier Terminated in accordance
with Sections 7 or 9 hereof, Executive’s employment
shall be for a thirty-six (36) month term beginning as of the
Effective Date (the “Employment Period”). For purposes
of this Agreement, “Terminate” (and variations and
derivatives thereof) shall mean, when used in connection with a
cessation of employment, that the Executive has incurred a
separation from service as defined in Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”),
and guidance and regulations issued thereunder
(“Section 409A”).
5. Extent
of Service . During the Employment Period, and excluding any
periods of vacation, sick or other leave to which Executive is
entitled under this Agreement, Executive agrees to devote
reasonable attention and time to the business and affairs of the
Bank commensurate with his offices, and, to the extent necessary to
discharge the responsibilities assigned to Executive hereunder, to
use Executive’s reasonable best efforts to perform faithfully
and efficiently Executive’s responsibilities and duties under
this Agreement.
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6.
Compensation and Benefits .
(a)
Base Salary . During the Employment Period, the Employer
will pay to Executive a base salary at the rate of at least
$354,750 per year (“Base Salary”), less normal
withholdings, payable in equal monthly or more frequent
installments as are customary under the Bank’s payroll
practices from time to time. In accordance with the policies and
procedures of the Board of Directors of the Bank (the “Bank
Board”), the Employer shall review Executive’s total
compensation at least annually and in its sole discretion may
adjust Executive’s total compensation from year to year, but
during the Employment Period the Employer may not decrease
Executive’s Base Salary below $354,750; provided further,
however, that periodic increases in Base Salary, once granted,
shall not be subject to revocation. The annual review of
Executive’s total compensation will consider, among other
things, changes in the cost of living, Executive’s own
performance and the Bancorp’s consolidated
performance.
(b)
Incentive Plans . During the Employment Period, Executive
shall be entitled (i) to participate in all of executive
management incentive plans of the Employer, and any successor or
substitute plans; (ii) to participate in long-term incentive
plans of the Employer, and any successor or substitute plans; and,
(iii) to participate in all stock option, stock grant and
similar plans of the Employer, and any successor or substitute
plans, in each of the foregoing cases in at least as favorable a
manner as any participant who is a member of the senior executive
management of the Employer at the same level as
Executive.
(c)
Savings and Retirement Plans . During the Employment Period,
Executive shall be entitled to participate in all savings, pension
and retirement plans (including supplemental retirement plans),
practices, policies and programs applicable generally to senior
executive employees of the Employer (the “Benefit
Plans”), and on at least as favorable a basis as any other
participant who is a member of the senior executive management of
the Employer at the same level as Executive.
(d)
Welfare Benefit Plans . During the Employment Period,
Executive and/or Executive’s family, as the case may be,
shall be eligible for participation in and shall receive all
benefits under all welfare benefit plans, practices, policies and
programs provided by the Employer (including, without limitation,
medical, hospitalization, prescription, dental, disability,
employee life, group life, accidental death and dismemberment, and
travel accident insurance plans and programs) (“Welfare
Benefit Plans”) to the extent applicable generally to senior
executive employees of the Employer.
(e)
Expenses . During the Employment Period, Executive shall be
entitled to receive prompt reimbursement for all reasonable
expenses incurred by Executive in accordance with the policies,
practices and procedures of the Employer to the extent applicable
generally to other senior executive employees of the Employer. The
expenses eligible for reimbursement under this item (i) in any
year shall not affect any expenses eligible for reimbursement or
in-kind benefits in any other year. Executive’s rights under
this item (3) are not subject to liquidation or exchange for
any other benefit.
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(f)
Fringe and Similar Benefits . During the Employment Period,
Executive shall be entitled to fringe benefits in accordance with
the plans, practices, programs and policies of the Employer in
effect for its senior executive employees. In addition, he shall be
entitled to an annual automobile allowance payment of $15,000.
Employer and the Bank shall pay the operating expenses of such
automobile.
(g)
Vacation, Sick and Other Leave . During the Employment
Period, Executive shall be entitled annually to a minimum of thirty
three (33) business days of paid vacation and shall be
entitled to those number of business days of paid disability, sick
and other leave specified in the employment policies of the
Employer. In addition, Executive shall receive up to five
(5) business days of paid leave to attend continuing education
programs in order to maintain his status as a certified public
accountant. Executive shall be required to take two
(2) vacations of at least five (5) consecutive business
days each calendar year.
7.
Termination of Employment (Other Than In Connection With A
Change Of Control) .
(a)
Death or Disability . Executive’s employment with the
Employer shall Terminate automatically upon Executive’s death
during the Employment Period. If the Employer determines in good
faith that the Disability of Executive has occurred during the
Employment Period (pursuant to the definition of Disability set
forth below), it may give to Executive written notice in accordance
with Section 7(e) and 16(h) of this Agreement of its intention to
Terminate Executive’s employment. In such event,
Executive’s employment with the Employer shall Terminate
effective on the 60th day after receipt of such written notice by
Executive (the “Disability Effective Date”), provided
that, within the 30 days after such receipt, Executive shall
not have returned to full-time performance of Executive’s
duties. For purposes of this Agreement, “Disability”
shall mean the absence of Executive from Executive’s duties
with the Employer on a full-time basis for 90 consecutive business
days as a result of incapacity due to mental or physical illness or
injury which is determined to be total and permanent by a physician
selected by the Employer, or the insurers of the Employer, and
acceptable to Executive or Executive’s legal representative,
which acceptance shall not be unreasonably withheld, subject to
(i) the Employer’s obligations, and Executive’s
rights, under (A) the Americans With Disabilities Act, 42 U.S.
C. §§ 1210 et seq. , and (B) the Family and
Medical Leave Act, 29 U. S.C. §§ 2601 et seq. (and
the regulations promulgated under the foregoing Acts), and
(ii) the exclusion from such 90 business day calculation of
any business days constituting vacation days under Section 6(g) and
any business days which an employee is permitted to be absent under
the disability, sick or other leave policies of the
Employer.
(b)
Cause . The Employer may Terminate Executive’s
employment with the Employer for Cause. For purposes of this
Agreement, “Cause” shall mean:
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(i)
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the
willful and continued failure of Executive to perform substantially
Executive’s duties with the Employer, other than any such
failure resulting from Disability, after a written demand for
substantial performance is delivered to Executive by the Bank Board
which specifically identifies the manner in which the
Bank
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Board believes
that Executive has not substantially performed Executive’s
duties;
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(ii)
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the
willful engaging by Executive in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the
Employer;
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(iii)
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continued insubordination with
respect to directives of the Bank Board after receipt of a written
warning from the Bank Board with respect thereto; or
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(iv)
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a
willful act by Executive which constitutes a material breach of
Executive’s fiduciary duty to the Employer which is intended
by Executive to injure the reputation or business of the
Employer.
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For purposes of
this provision, no act or failure to act on the part of Executive
shall be considered “willful” unless it is done, or
omitted to be done, by Executive in bad faith or without reasonable
belief that Executive’s action or omission was in the best
interests of the Employer. Any act, or failure to act, based upon
authority given pursuant to resolutions duly adopted by the Bank
Board or the Board of Directors of Bancorp, or based upon the
advice of counsel for the Employer shall be conclusively presumed
to be done, or omitted to be done, by Executive in good faith and
in the best interests of the Employer and to not constitute
insubordination.
(c)
Good Reason . Executive may Terminate Executive’s
employment with the Employer for Good Reason. For purposes of this
Agreement, “Good Reason” shall mean: (i) a
material diminution in Executive’s authority, duties, or
responsibilities; (ii) a material change in the geographic
location at which Executive must perform the services to be
performed by Executive pursuant to this Agreement; and
(iii) any other action or inaction that constitutes a material
breach by the Employer of this Agreement. Provided, that Executive
must provide notice to the Employer of the condition Executive
contends is Good Reason within 30 days of the initial
existence of the condition, and the Employer must have a period of
at least 30 days to remedy the condition. If the condition is
not remedied, Executive must provide a Notice of Termination as set
forth in Section 7(e) within 30 days of the end of the
Employer’s remedy period.
(d)
Without Cause . The Employer may Terminate Executive’s
employment without cause (“Termination Without
Cause”).
(e)
Notice of Termination . Any Termination (other than for
death) shall be communicated by a Notice of Termination given in
accordance with Section 16(h) of this Agreement. For purposes of
this Agreement, a “Notice of Termination” means a
written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
Executive’s employment under the provision so indicated, and
(iii) if the Date of Termination (as defined below) is other
than the date of receipt of such notice, specifies the Termination
date (which date shall be not more than 30 days after the
giving of such notice
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except as
otherwise provided in Section 7(a)). The failure to set forth
in the Notice of Termination any fact or circumstance which
contributes to a showing of Disability, Cause, or Good Reason shall
not waive any right of Executive or the Employer hereunder or
preclude Executive or the Employer from asserting such fact or
circumstance in enforcing Executive’s or the Employer’s
rights hereunder.
(f)
Date of Termination . “Date of Termination”
means (i) if Executive’s employment is Terminated by the
Employer for Cause or Without Cause, the date of receipt of the
Notice of Termination or any later date specified therein, as the
case may be, (ii) if Executive’s employment is
Terminated by Executive for Good Reason, the date of receipt of the
Notice of Termination, and (iii) if Executive’s
employment is Terminated by reason of death or Disability, the Date
of Termination shall be the date of death of Executive or the
Disability Effective Date, as the case may be.
8.
Obligations of the Employer Upon Termination (Other Than In
Connection With A Change Of Control) . The provisions of this
Section 8 apply only to Terminations that are not in
connection with a Change of Control.
(a)
Termination Without Cause or for Good Reason . If, during
the Employment Period, the Employer shall Terminate
Executive’s employment Without Cause or the Executive shall
Terminate Executive’s employment for Good Reason, then in
consideration of Executive’s services rendered prior to such
Termination;
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(i)
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the
Employer shall pay to Executive a lump sum in cash on the 30th day
after the Date of Termination equal to the aggregate of the
following amounts:
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A.
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the
sum of (1) Executive’s Base Salary through the Date of
Termination to the extent not theretofore paid, and (2) any
accrued vacation, sick and other leave pay, in each case to the
extent not theretofore paid (the sum of the amounts described in
clauses (1) and (2) shall be hereinafter referred to as
the “Accrued Obligations”); and
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B.
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the
amount equal to the product of (1) the number of days that
would have remained in the Employment Period from and after the
Date of Termination had the Termination not occurred (the
“Remaining Employment Period”), and
(2) Executive’s Base Salary divided by 365;
and
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C.
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the
product of (1) Executive’s aggregate cash bonus for the
last completed fiscal year, whether paid to Executive under
Section 6 above or otherwise paid to Executive, and (2) a
fraction, the numerator of which is the number of days in the
current fiscal year through the Date of Termination and the
denominator of which is 365.
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(ii)
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for
the Remaining Employment Period, or such longer period as may be
provided by the terms of the appropriate plan, program, practice or
policy, the Employer shall continue to provide benefits to
Executive and/or Executive’s family at least equal to those
which would have been provided to them in accordance with the
Welfare Benefit Plans if Executive’s employment had not been
terminated; provided, however, that if Executive becomes employed
with another employer and is eligible to receive substantially the
same benefits under the other employer’s plans as Executive
would receive under the Welfare Benefit Plans under this item (ii),
the benefits provided under this Item (ii) shall be secondary
to those provided under such other employer’s plans during
such applicable period of eligibility. For purposes of determining
eligibility and years-of-service credit (but not the time of
commencement of benefits) of Executive for retiree benefits
pursuant to such Welfare Benefit Plans, to the extent permitted by
the terms of the Welfare Benefit Plans, Executive shall be
considered to have remained employed throughout the Remaining
Employment Period and to have retired on the last day of such
period; and
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(iii)
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to
the extent not theretofore paid or provided, the Employer shall
timely pay or provide to Executive any other amounts or benefits
required to be paid or provided herein or which Executive is
eligible to receive under any Welfare Benefit Plan.
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(b)
Death . If Executive’s employment is terminated by
reason of Executive’s death during the Employment Period,
this Agreement shall terminate without further obligations to
Executive’s legal representatives under this Agreement,
except that: (i) Accrued Obligations shall timely be paid as
provided below; (ii) Other Benefits shall be timely paid or
provided as described below; (iii) all stock options that are
“incentive stock options” (“ISOs”), as
described in Section 422 of the Code, previously granted to
Executive that vested at or prior to the Date of Termination shall
remain exercisable for the longer of twelve (12) months and
the exercise period in effect immediately prior to the Date of
Termination; (iv) all nonqualified stock options
(“NSOs”) shall remain exercisable for the period of
exercise in effect immediately prior to the Date of Termination;
(v) all options previously granted to Executive and scheduled
to vest in the year of death shall immediately vest and be
exercisable for the exercise period set forth in the applicable
grants; and (vi) Executive’s rights to all benefits
under all Benefit Plans that are “non-qualified” plans
shall be 100% vested, regardless of Executive’s age or years
of service, at the time of Executive’s death. Accrued
Obligations shall be paid to Executive’s estate or
beneficiary, as applicable, in a lump sum in cash on the 30th day
after the Date of Termination. With respect to the provision of
Other Benefits, the term “Other Benefits” as utilized
in this Section 8(b) shall mean, and Executive’s estate
and/or beneficiaries shall be entitled to receive, all benefits
under the Employer’s Welfare Benefit Plans relating to death
benefits. Without limiting the foregoing, for one (1) year
after Executive’s death, the Employer shall pay
any
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premium
required for any “qualified beneficiary” to continue
his or her health care coverage in accordance with Title 1,
Part 6 of the Employee Retirement Security Act of 1974, as
amended.
(c)
Disability . If Executive’s employment is terminated
by reason of Executive’s Disability during the Employment
Period, this Agreement shall terminate without further obligations
to Executive, except that: (i) Accrued Obligations shall be
timely paid as provided below; (ii) Other Benefits shall be timely
paid or provided as described below; (iii) all options that
are ISOs and that vested at or prior to the Date of Termination
shall remain exercisable for the lesser of twelve (12) months
and the period of exercise in effect immediately prior to the Date
of Termination; (iv) all options previously granted and
scheduled to vest in the year in which the Date of Termination
occurs shall immediately vest and be exercisable (A) in the
case of ISOs, for twelve (12) months from the Date of
Termination, and (B) in the case of NSOs, for the exercise
period set forth in the applicable grant; and (v) all other
options that vested at or prior to the Date of Termination shall
remain exercisable for the period of exercise in effect immediately
prior to the Date of Termination. Accrued Obligations shall be paid
to Executive in a lump sum in cash on the 30th day after the Date
of Termination. With respect to the provision of Other Benefits,
the term Other Benefits as utilized in this Section 8(c) shall
include, without limitation, and Executive shall be entitled after
the Date of Termination to receive, (1) all disability
benefits under all Welfare Benefit Plans relating to disability,
and (2) for the remainder of the Remaining Employment Period
all benefits available to Executive under all Welfare Benefit
Plans.
(d)
Cause . If Executive’s employment shall be Terminated
for Cause during the Employment Period, this Agreement shall
terminate without further obligations to Executive, except that
(i) the Accrued Obligations shall be paid in a lump sum in
cash on the 30th day after the Date of Termination, and
(ii) Other Benefits shall be paid or provided in a timely
manner, in each case to the extent theretofore unpaid; provided,
however, that Executive’s right to continue to
participa
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