EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Agreement is made effective as
of
, 2008 (the “Effective
Date”), by and between Provident Financial Services, Inc.
(the “Company”), a Delaware corporation, and
(the “Executive”). References to the “Bank”
mean The Provident Bank, a New Jersey chartered savings bank and
wholly-owned subsidiary of the Company. The Company and the Bank
are sometimes collectively referred to as the
“Employers.”
WHEREAS, the Company and the
Executive entered into an Employment Agreement effective as of
200 (such
agreement the “Prior Agreement” and such effective date
the “Initial Effective Date”); and
WHEREAS, the parties desire to amend
and restate the Prior Agreement pursuant to Section 14 thereof
for the purpose, among others, of compliance with the applicable
requirements of Section 409A of the Internal Revenue Code of
1986 (“the Code”);
NOW, THEREFORE, in consideration of
the mutual covenants herein contained, and upon the other terms and
conditions hereinafter provided, the parties hereby agree as
follows:
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1.
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POSITION AND
RESPONSIBILITIES.
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During the period of his employment
hereunder, Executive agrees to serve as
of the Bank and the Company. During said period, Executive also
agrees to serve, if elected, as an officer and director of any
subsidiary or affiliate of the Bank or the Company. Failure to
reelect Executive as
of the Company and the Bank without the consent of the Executive
during the term of this Agreement (except for any termination for
Cause, as defined herein) shall constitute a breach of this
Agreement.
(a) The period of
Executive’s employment under this Agreement shall begin as of
the Initial Effective Date and shall continue for a period of
thirty-six (36) full calendar months thereafter. During each
calendar year that begins prior to the Effective Date, commencing
on the first anniversary date of the Initial Effective Date, and
continuing at each anniversary date thereafter, the Agreement shall
renew for an additional year such that the remaining term shall be
thirty-six (36) full calendar months; provided, however, if
written notice of nonrenewal is provided to Executive at least ten
(10) days and not more than thirty (30) days prior to any
anniversary date, the employment of Executive hereunder shall cease
at the end of thirty-six (36) months following such
anniversary date. On April 1 st of each calendar year that
begins on or after the Effective Date, the Agreement shall renew
for an additional year such that the remaining term shall be
thirty-six (36) full calendar months beginning on such
April 1st;
provided, however, if written notice of
nonrenewal is provided to Executive at least ten (10) days and
not more than thirty (30) days prior to any renewal date, the
employment of Executive hereunder shall cease at the end of
thirty-six (36) months following such renewal date. On an
annual basis prior to the deadline for the notice period referenced
above, the board of directors of the Company (the “Board of
Directors”) shall conduct a performance review of Executive
for purposes of determining whether to provide notice of
nonrenewal.
(b) During the period of his
employment hereunder, except for periods of absence occasioned by
illness, reasonable vacation periods, and reasonable leaves of
absence approved by the Board of Directors, Executive shall devote
substantially all his business time, attention, skill, and efforts
to the faithful performance of his duties hereunder including
activities and services related to the organization, operation and
management of the Company and the Bank; provided, however, that,
with the approval of the Board of the Company or the Bank, as
evidenced by a resolution of such Board, from time to time,
Executive may serve, or continue to serve, on the boards of
directors of, and hold any other offices or positions in, business
companies or business organizations, which, in such Board’s
judgment, will not present any conflict of interest with the Bank,
or materially affect the performance of Executive’s duties
pursuant to this Agreement (it being understood that membership in
and service on boards or committees of social, religious,
charitable or similar organizations does not require Board approval
pursuant to this Section 2(b)). For purposes of this
Section 2(b), Board approval shall be deemed provided as to
service with any such business companies or organizations that
Executive was serving as of the Initial Effective Date as set forth
in Exhibit A to the Prior Agreement.
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3.
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COMPENSATION,
BENEFITS AND REIMBURSEMENT.
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(a) The compensation specified under
this Agreement shall constitute the salary and benefits paid for
the duties described in Section 2(b). The Company or the Bank
shall pay Executive as compensation a salary at an annual rate not
less than $
per year (“Base Salary”). Such Base Salary shall be
payable biweekly, or with such other frequency as officers and
employees are generally paid. During the period of this Agreement,
Executive’s Base Salary shall be reviewed at least annually.
Such review may be conducted by a Committee designated by the
Board, and the Board may increase, but not decrease (except a
decrease that is generally applicable to all employees),
Executive’s Base Salary (any increased Base Salary shall
become the “Base Salary” for purposes of this
Agreement). In addition to the Base Salary provided in this
Section 3(a), the Company or the Bank shall provide Executive
at no cost to Executive with all such other benefits as are
provided uniformly to permanent full-time employees of the Bank.
Base Salary shall include any amounts of compensation deferred by
Executive under qualified and nonqualified plans maintained by the
Company or the Bank.
(b) The Company or the Bank will
provide Executive with employee benefit plans, arrangements and
perquisites substantially equivalent to those in which Executive
was participating or otherwise deriving benefit from immediately
prior to the Effective Date, and the Company and the Bank will not,
without Executive’s prior written consent,
make any changes in such plans, arrangements or
perquisites which would adversely affect Executive’s rights
or benefits thereunder, except as to any changes that are
applicable to all participating employees or as reasonably or
customarily available. Without limiting the generality of the
foregoing provisions of this Subsection (b), Executive will be
entitled to participate in or receive benefits under any employee
benefit plans including, but not limited to, retirement plans,
supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident insurance plans, medical coverage or any other
employee benefit plan or arrangement made available by the Bank or
the Company in the future to its senior executives and key
management employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and
arrangements. Executive will be entitled to incentive compensation
and bonuses as provided in any plan of the Bank or the Company in
which Executive is eligible to participate. Nothing paid to the
Executive under any such plan or arrangement will be deemed to be
in lieu of other compensation to which the Executive is entitled
under this Agreement.
(c) In addition to the Base Salary
provided for by paragraph (a) of this Section 3, the Bank
or the Company may provide such additional compensation in such
form and such amounts as the Board may from time to time determine.
Without limiting the foregoing, the Bank or the Company shall
provide the Executive with an automobile suitable to the position
of
, and such automobile may be used by the Executive in carrying out
his duties under this Agreement, including commuting between his
residence and his principal place of employment, and other personal
use. The Bank or the Company shall (i) reimburse the Executive
for the cost of maintenance and servicing such automobile and for
instance, gasoline and oil for such automobile; (ii) reimburse
the Executive for his ordinary and necessary business expenses
incurred in the performance of his duties under this Agreement
(including but not limited to travel and entertainment expenses)
that are excludible from the Executive’s gross income for
federal income tax purposes; (iii) reimburse the Executive for
fees for memberships in a country club, a health club, and such
other clubs and organizations and such other expenses as the
Executive and the Board shall mutually agree are necessary and
appropriate for business purposes, in each case upon presentation
to the Bank or the Company of an itemized account of such expenses
in such form as the Bank or the Company may reasonably require,
each such reimbursement payment to be made promptly following
receipt of the itemized account and in any event not later than the
last day of the calendar year following the calendar year in which
the expense was incurred. The Executive shall be responsible for
the payment of any taxes on account of his personal use of the
automobile, if any, provided by the Bank or the Company and on
account of any other benefit provided herein. The foregoing
provisions for use of an automobile provided by the Bank or the
Company and reimbursement of related expenses shall apply on a
calendar year basis; prior to the beginning of each calendar year,
the Bank or the Company may determine to substitute a cash
allowance or other arrangement which it determines to be of
equivalent value for one or more succeeding calendar years or any
portion thereof during the term of this Agreement.
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4.
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PAYMENTS TO
EXECUTIVE UPON AN EVENT OF TERMINATION.
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(a) Upon the occurrence of an Event
of Termination (as herein defined) during the Executive’s
term of employment under this Agreement, the provisions of this
section shall apply. As used in this Agreement, an “Event of
Termination” shall mean and include any one or more of the
following: (i) the termination by the Bank or the Company of
Executive’s full-time employment hereunder for any reason
other than a termination following a Change in Control, as defined
in Section 5(a) hereof, or a termination for Cause, as defined
in Section 8 hereof, or a termination upon Retirement as
defined in Section 7 hereof, or a termination for disability
as set forth in Section 6 hereof; and
(ii) Executive’s resignation from the Company’s
and the Bank’s employ, upon any of the following:
(A) failure to elect or reelect or to appoint or reappoint
Executive as
of the Company and the Bank, or to nominate (and as to the Bank,
elect) Executive to the Board of Directors of Bank and the Company,
unless consented to by the Executive or resulting from the
Executive’s refusal to stand for election, (B) a
material change in Executive’s function, duties, or
responsibilities, which change would cause Executive’s
position to become one of lesser responsibility, importance, or
scope from the position and attributes thereof described in
Sections 1 and 2 above, to which Executive has not agreed in
writing (and any such material change not agreed to in writing
shall be deemed a continuing breach of this Agreement), (C) a
relocation of Executive’s principal place of employment to a
location that is more than 25 miles from the location of the
Bank’s principal executive offices as of the Initial
Effective Date, or a material reduction in the benefits and
perquisites, including Base Salary, to the Executive from those
being provided as of the Initial Effective Date (except for any
reduction that is part of an employer-wide reduction in pay or
benefits), (D) a liquidation or dissolution of the Bank or the
Company, or (E) material breach of this Agreement by the
Company or the Bank. Upon the occurrence of any event described in
clauses (ii) (A), (B), (C), (D) or (E) above,
Executive shall have the right to elect to terminate his employment
under this Agreement by resignation upon not less than thirty
(30) days prior written notice given within a reasonable
period of time (not to exceed, except in case of a continuing
breach, four calendar months) after the event giving rise to said
right to elect, which termination by Executive shall be an Event of
Termination. No payments or benefits shall be due to Executive
under this Agreement upon the termination of Executive’s
employment except as provided in Section 4 or 5
hereof.
(b) Upon the occurrence of an Event
of Termination, the Company shall pay Executive, or, in the event
of his subsequent death, his beneficiary or beneficiaries, or his
estate, as the case may be, (i) his earned but unpaid Base
Salary through the date of termination, to be paid not later than
the date on which such Base Salary would ordinarily have been paid,
(ii) the annual bonus (if any) to which he is entitled under
any cash-based annual bonus or performance compensation plan in
effect for the year in which his termination occurs, to be paid at
the same time and on the terms and conditions (including but not
limited to achievement of performance goals) applicable under the
relevant plan, (iii) the benefits (if any) due to the
Executive as a former employee other than pursuant to this
Agreement under the Bank’s and the Company’s
compensation and benefits plans (the items described in Sections
4(b)(i), (ii) and (iii), the “Standard Termination
Entitlements”) and (iv) as severance pay or liquidated
damages, or both, a cash amount equal to the greater of the
payments due for the remaining term of the Agreement, or three
(3) times the sum of: (i) the highest annual rate of Base
Salary paid
to Executive at any time under this Agreement,
and (ii) the greater of (x) the average annual cash bonus
paid to Executive with respect to the three completed fiscal years
prior to the Event of Termination, or (y) the cash bonus paid
to Executive with respect to the last fiscal year ended prior to
the Event of Termination (the item described in
Section 4(b)(iv), the “Additional Severance
Payment”). At the election of the Executive, which election
is to be made in writing on or before December 31, 2008 and is
irrevocable after December 31, 2008, the Additional Severance
Payments that are due after December 31, 2008 shall be made in
a lump sum on, or paid quarterly during the remaining term of the
Agreement beginning on, the Executive’s termination. In the
event that no election is made or applicable, the Additional
Severance Payment to the Executive will be made in a lump sum
without reduction for present value. Such payments shall not be
reduced in the event the Executive obtains other employment
following termination of employment.
(c) Upon the occurrence of an Event
of Termination, the Company or the Bank will cause to be continued
life, medical, dental and disability coverage substantially
comparable, as reasonably or customarily available, to the coverage
maintained by the Company and the Bank for Executive prior to his
termination, except to the extent such coverage may be changed in
its application to all Bank and Company employees. Such coverage
shall cease thirty-six (36) months following the Event of
Termination. To the extent the Company or the Bank determines in
good faith it is not practicable to provide in-kind coverage, it
shall pay directly to the insurance carrier the premium, or
reimburse the Executive for his direct out-of-pocket cost, for
comparable coverage obtained by the Executive on his own. Each such
reimbursement payment shall be made promptly on submission of an
itemized account of the Executive’s reimbursable expense in
such form as the Bank or the Company may reasonably require and in
any event not later than the last day of the calendar year
following the calendar year in which the expense was incurred. Each
reimbursement payment shall include an additional amount calculated
by the Bank or the Company in its reasonable discretion to reflect
the aggregate amount of federal, state and local income and payroll
taxes incurred by the Executive with respect to the reimbursement
payment.
(a) Change in Control. “Change
in Control” shall mean the occurrence of any of the following
events:
(i) consummation of a transaction
that results in the reorganization, merger or consolidation of the
Company, with one or more other persons, other than a transaction
following which:
(A) at least 51% of the equity
ownership interests of the entity resulting from such transaction
are beneficially owned (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended
(“Exchange Act”)) in substantially the same relative
proportions by persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) at least 51% of the outstanding equity
ownership interests in the Company; and
(B) at least 51% of the securities
entitled to vote generally in the election of directors of the
entity resulting from such transaction are beneficially owned
(within the meaning of Rule 13d-3 promulgated under the Exchange
Act) in substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) at
least 51% of the securities entitled to vote generally in the
election of directors of the Company;
(ii) the acquisition of all or
substantially all of the assets of the Company or beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of the outstanding securities of the
Company entitled to vote generally in the election of directors by
any person or by any persons acting in concert, or approval by the
shareholders of the Company of any transaction which would result
in such an acquisition;
(iii) a complete liquidation or
dissolution of the Company or the Bank, or approval by the
shareholders of the Company of a plan for such liquidation or
dissolution;
(iv) the occurrence of any event if,
immediately following such event, members of the Company’s
Board of Directors who belong to any of the following groups do not
constitute at least a majority of the Company’s Board of
Directors:
(A) individuals who were members of
the Company’s Board of Directors on the Initial Effective
Date; or
(B) individuals who first became
members of the Company’s Board of Directors after the Initial
Effective Date either:
(I) upon election to serve as a
member of the Company’s Board of Directors by the affirmative
vote of three-quarters of the members of such Board, or of a
nominating committee thereof, in office at the time of such first
election; or
(II) upon election by the
shareholders of the Company to serve as a member of the
Company’s Board of Directors, but only if nominated for
election by the affirmative vote of three-quarters of the members
of such Board, or of a nominating committee thereof, in office at
the time of such first nomination; provided that such
individual’s election or nomination did not result from an
actual or threatened election contest or other actual or threatened
solicitation of proxies or consents other than by or on behalf of
the Company’s Board of Directors; or
(v) any event which would be
described in Section 5(a)(i), (ii), (iii), (iv), or (v), if
the term “Bank” were substituted for the term
“Company” therein and the term “Bank’s
Board of Directors” were substituted for the term
“Company’s Board of Directors” therein. In no
event, however, shall a Change in Control be deemed to have
occurred as a result of any acquisition of securities or assets of
the Company, the Bank or a subsidiary of either of them, by the
Company, the Bank, any subsidiary of either of
them, or by any employee benefit
plan maintained by any of them. For purposes of this
Section 5, the term “person” shall include the
meaning assigned to it under Sections 13(d)(3) or 14(d) of the
Exchange Act.
(b) If any of the events described
in Section 5(a) hereof constituting a Change in Control shall
have occurred or the Board has determined that a Change in Control
has occurred, Executive shall be entitled to the benefits provided
in paragraphs (c) and (d) of this Section 5 upon his
subsequent termination of employment at any time during the term of
this Agreement (regardless of whether such termination results from
his resignation or his dismissal), unless such termination is
(A) because of his death or Retirement, or, (B) for
Disabilit
