FORM OF WAIVER AGREEMENT

EX-10.2 5 exh10_2.htm FORM OF WAIVER AGREEMENT WITH OTHER EXECUTIVES exh10_2.htm
Exhibit 10.2
 
 
 
FORM OF WAIVER AGREEMENT
(RETENTION AGREEMENTS)
 
    WAIVER AGREEMENT (this "Waiver"), made as of March 19, 2009, by and between Unity Bancorp, Inc., a New Jersey corporation with an address at 64 Old Highway 22, Clinton, NJ 08809 (the “Company”), Unity Bank, a New Jersey state commercial bank with its principal place of business located at 64 Old Highway 22, Clinton, NJ 08809 (the “Bank”) and __________, (the "Executive").  The Company and the Bank shall be referred to herein collectively as the “Employer”.
 

WITNESSETH :

WHEREAS, the Employer and the Executive have entered into that certain Retention Agreement, made as of March 19, 2007, (and as may hereafter be further amended, modified, supplemented, extended, renewed, restated or replaced, the "Retention Agreement"), which governs the terms and conditions of the Executive’s employment with the Employer;

WHEREAS, as part of the Emergency Economic Stabilization Act of 2008 (“EESA”), the United States Treasury (the “Treasury”) adopted a program known as the Capital Purchase Program (“CPP”) pursuant to which the Treasury will invest in United States insured depository institutions;

WHEREAS, the Company received an investment of $20,649,000 from the Treasury pursuant to the CPP on December 5, 2008.

WHEREAS, the terms of the CPP were revised by the American Recovery and Reinvestment Act of 2009 (the “ARRA”), which, among other things, imposed certain limitations upon the compensation of executive officers of companies which participated in the CPP;

WHEREAS, the Retention Agreement does not comply with the requirements of the ARRA, in that it provides for certain severance payments to the Executive; and

WHEREAS, the Executive is willing to waive such portions of the Retention Agreement which do not comply with the ARRA subject to the terms and conditions contained herein.
NOW THEREFORE, in consideration of the foregoing, and the respective agreements and covenants contained herein, the parties hereto agree as follows:

     1.                      Waiver

Subject to the terms and conditions hereof, the Executive hereby agrees to waive all provisions of the Retention Agreement that  would render the Employer in violation of the Section 111 of the EESA, as amended by the ARRA, and the regulations as may be promulgated thereunder from time to time, including, but not limited to:

a.           Section (b) of Article 1 of the Retention Agreement with respect to the Executive’s rights to receive a payment equal to twelve (12) months of the Executive’s then current Base Salary in the event of the Executive’s Termination Without Cause;

b.           Section (c) of Article 1 of the Retention Agreement with respect to the Executive’s right to receive a payment equal to twelve (12) months of the Executive’s then current Base Salary upon the Executive’s Resignation With Cause;

c.           Section (a & d) of Article 2 of the Retention Agreement with respect to the Executive’s right to receive a payment equal to the greater of: (i) twenty-four (24) months of the Executive's Base Salary; or (ii) twenty-four (24) months of the Executive's then current Base Salary plus any cash bonus received by the Executive for the Employer's preceding fiscal year, in the event of a Change in Control or Significant Acquisition; provided,  however,  that the  foregoing  waiver will be of no further  force or effect,  and the Executive will be entitled  to  exercise  all of  his rights and  remedies  under  the  Employment Agreement, and applicable  law, automatically upon such time as the Company is no longer prohibited from making the payments described above under the EESA and regulations thereunder, whether because the Company’s obligation to the Treasury arising from the Company’s participation in the CPP shall be satisfied or excused, the EESA shall be further amended to eliminate the prohibition on severance or otherwise.

2           Further Limitations of Waiver

This Waiver by the Executive of the benefits conferred upon him pursuant to the Retention Agreement shall be construed only to the minimum extent necessary so that the Employer shall be in compliance with the Section 111 of the EESA, the ARRA and the regulations as may be promulgated from time to time thereunder (collectively, the “Acts”), and shall not be construed to grant to the Employer additional benefits beyond what is minimally required to comply with the Acts.

3           Entire Agreement; Binding Affect; Employment Agreement to Remain in Effect.  This Waiver constitutes the entire and final agreement among the parties with respect to the subject matter hereof and there are no agreements, understandings, warranties or representations among the parties as to such subject matter except as set forth herein.  This Waiver will inure to the benefit and bind the parties hereto and the respective heirs, administrators, executors, representatives, successors and permitted assigns of the parties hereto. Except as specifically provided for hereunder, the Employment Agreement shall remain in full force and effect, shall not be modified or otherwise revised by this Waiver Agreement.

4.           Defined Terms.  Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Employment Agreement.

5.           Governing Law.  This Waiver is executed and delivered in the State of New Jersey and it is the desire and intention of the parties that it be in all respects interpreted according to the laws of the State of New Jersey, without giving effect to choice of law provisions thereof.

6.           Counterparts.  This Waiver may be executed in counterparts, each of which will be deemed an original document, but all of which will constitute a single document.


 
 

 




IN WITNESS WHEREOF, the Company, the Bank and the Executive legally bound, have executed this Waiver Agreement as of the date first noted above.



Unity Bancorp, Inc.



By:  ________________________
Name:  David D. Dallas
Title:     Chairman


Unity Bank



By:  ________________________
Name:  James A. Hughes
Title:     President/CEO



____________________________

 
 

 

 











Basic Info X:

Name: FORM OF WAIVER AGREEMENT
Type: Waiver
Date: March 19, 2009
Company: UNITY BANCORP INC /NJ/
State: New Jersey

Other info: