SUN BANCORP, INC.
CHANGE IN CONTROL SEVERANCE AGREEMENT
Amended
and Restated
THIS CHANGE IN CONTROL
SEVERANCE AGREEMENT (“Agreement”) entered into
this 18 th day
of October, 2007 (“Effective Date”), by and
between Sun Bancorp, Inc. (the “Company”) and
Bernard A. Brown (the “Executive”).
WHEREAS, the Executive is
currently employed by the Company as Chairman and is
experienced in all phases of the business of the Company;
and
WHEREAS, the parties
desire by this writing to set forth the continuing rights and
responsibilities of the Company and Executive if the Company
should undergo a change in control (as defined hereinafter in
the Agreement) after the Effective Date.
NOW, THEREFORE, it is
AGREED as follows:
1. Employment
. The Executive is employed in the capacity as
Chairman of the Company. The Executive shall
render such administrative and management services to the
Company and Sun National Bank
(“Bank”), as are currently rendered
and as are customarily performed by persons situated in a
similar executive capacity. The Executive's other
duties shall be such as the Board of Directors for the
Company (the “Board of Directors” or
“Board”) may from time to time reasonably direct,
including normal duties as an officer of the Company and the
Bank.
2. Term of
Agreement . The term of this Agreement shall
be for the period commencing on the Effective Date and ending
thirty-six (36) months thereafter
(“Term”). Additionally, as of
each December 31, thereafter, the Term of this Agreement
shall be extended for an additional period such that the Term
of the Agreement as of such date of extension shall be for a
new period of thirty-six months thereafter; provided,
however, such Term shall not be automatically extended as of
December 31 of any given year if the Board shall give the
Executive written notice not later October 1 immediately
prior to such December 31 date that the Board has made a
determination by an affirmative vote of not less than a
majority of the members of the full Board then in office that
such Agreement shall not be extended thereafter absent a
future affirmative determination and resolution of the Board
of Directors that the Term of such Agreement shall be
extended beyond the then in effect expiration date of such
Agreement. The Term shall refer to the initial
Term or any subsequent extension of such Term
thereafter.
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3.
Termination of Employment in Connection with or Subsequent to a
Change in Control .
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(a)Notwithstanding any
provision herein to the contrary, in the event of the
involuntary termination of Executive's employment with the
Company during the term of this Agreement following any
Change in Control of the Company or Bank, or within 24 months
thereafter of such Change in Control, absent Just
Cause, the Executive shall be paid an amount equal
to the product of 2.999 times the Executive's average annual
aggregate taxable compensation paid by the Company as
reported, or to be reported, on the IRS Form W-2, box 1, or
IRS Form 1099 for the most recently completed five calendar
years ending on, or before, the date of such Change in
Control. Said sum shall be paid by the Company to
the Executive in one (1) lump sum not later than the date of
the Executive's termination of service. In
addition, the Executive and his dependents shall be eligible
to continue coverage under the Company's (or its
successor's) medical and dental insurance reimbursement plans
similar to that in effect on the date of termination of
employment at the participants' election and expense.
Notwithstanding the forgoing, all sums payable hereunder
shall be reduced in such manner and to such extent so that no
such payments made hereunder when aggregated with all other
payments to be made to the Executive by the Company or the
Bank shall be deemed an “excess parachute
payment” in accordance with Section 280G of the
Internal Revenue Code of 1986, as amended (the
“Code”) and regulations promulgated thereunder
and be subject to the excise tax provided at Section 4999(a)
of the Code. The term “Change in
Control” shall refer to (i) the sale of all,
or a material portion, of the assets of the Company or the
Bank; (ii) the merger or recapitalization of the Company or
the Bank whereby the Company or the Bank is not the
surviving entity; (iii) a change in control of the
Company or the Bank, as otherwise defined or determined by
the Office of the Comptroller of the Currency or regulations
promulgated by it; or (iv) the acquisition, directly or
indirectly, of the beneficial ownership (within the meaning
of that ter
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