EX-10.3



 





Exhibit 10.3









AMENDED AND RESTATED EMPLOYMENT AGREEMENT




     This Amended and Restated Employment Agreement is entered into by and between George E.
Norcross, III (hereinafter “Employee”) and Commerce Bancorp, Inc. (and all of its affiliates and
subsidiaries) (hereinafter collectively “Commerce”), a New Jersey business corporation, effective
date of October 2, 2007.



BACKGROUND




     Commerce and Employee (the “Parties”) entered into an Employment Agreement, dated November 15,
1996. Commerce recognizes that, as is the case with many publicly held companies, the possibility
of a change in control may exist, and that such possibility and the uncertainty and questions which
it may raise among management may result in the departure or distraction of the Employee in the
performance of the Employee’s duties, to the detriment of Commerce and its shareholders. It is in
the best interests of Commerce and its shareholders to reinforce and encourage the continued
attention and dedication of qualified management personnel, including Employee, to their assigned
duties. The Parties have determined that this Agreement should be entered into to address the
uncertainty and amend and restate the terms and conditions of the employment relationship; and



     The Parties agree that Commerce will continue to employ Employee, and Employee agrees to
continue his employment per the terms and conditions in this Agreement, which shall supersede any
prior agreements between the Parties with respect to their employment relationship.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and
intending to be legally bound, Commerce and Employee AGREE as follows:



     1. Employment and Term of Employment.




     1.1. Three-Year Term. Commerce offers Employee employment, and Employee accepts such
employment, subject to all the terms and conditions of this Agreement, for a term of three
(3) years beginning on the effective date stated above.




     (a) “Term” means the three (3) year employment
period beginning on the effective date as stated above. However, if
there is a “Change in Control’ (as defined in Section 8.1) within the
first 18 months of the Term, the Term will automatically be extended
until the three (3) year anniversary of the consummation of the
Change in Control (the “Closing Date”).
Notwithstanding the preceding, Employee’s employment under



Employment Agreement




 Page 1 of 21









 














this Agreement is subject to Commerce’s and
Employee’s right to terminate such employment by delivering written
notice of termination to the other party at least thirty (30) days
prior to the date of termination of employment.




     (b) Expiration. This Agreement expires three (3) years after the effective
date stated above, or, if applicable, on the third anniversary of the Closing Date.



     2. Services and Duties.




     2.1 Duties. Commerce agrees to employ Employee during the Term as Chairman and Chief
Executive Officer of Commerce Banc Insurance Services, Inc. Employee agrees to accept such
employment, and to devote substantially all of his full business time and efforts to the
business and affairs of Commerce and to use his reasonable best efforts to promote the
interests of Commerce (exclusive of spending his own money to promote the business interests
of Commerce). Employee shall have such executive responsibilities, duties and authorities
as may from time to time be assigned to him by the Commerce Board of Directors (the
“Commerce Board”) and/or Office of the Chairman, consistent with his position as of Chairman
and Chief Executive Officer of Commerce Banc Insurance Services, Inc. Employee agrees that
during his employment hereunder he will not be employed by, participate or engage in, or be
a part of, in any manner directly or indirectly, the affairs of any other business
enterprise, venture or occupation related to Commerce’s banking, insurance and financial
services business without Commerce’s express prior written consent, which consent shall not
be unreasonably withheld, delayed or conditioned. Employee shall serve, without additional
compensation, as a director and/or committee member of Commerce if so appointed or elected.
During the term, Employee shall be governed by and be subject to all Commerce rules and
regulations whether written or oral which are applicable to employees in general.



     3. Compensation.




     3.1 Base Salary. By entering into this Agreement, Commerce is hereby agreeing to pay
and provide Employee with a vested “base salary” at the rate of not less than $988,000.00
per year during each of the three years of the Term of this Agreement, unless Employee (i)
resigns from Commerce Voluntarily (as defined in Section 5), (ii) is terminated by Commerce
for Cause (as defined in Section 5), or (iii) dies while employed hereunder, in which cases
(and in only such cases) the base salary payments to Employee will cease as of such date.
Base salary shall be payable at regular intervals in accordance with Commerce’s normal
payroll practices.



Employment Agreement





 Page 2 of 21









 














          (a) Adjustment. Employee’s base salary is subject to an annual review and subject to
such upward adjustments as may be deemed appropriate by a Commerce Board-designated
Committee or other Commerce Board designee. There is no obligation to recommend an increase
or to increase base salary; but, base salary once increased may not be decreased.




     3.2 Bonus. Employee shall be eligible to receive a target bonus in the amount of
$500,000.00 for each year of the Term, based on the achievement of objective and reasonable
performance metrics with respect to both corporate and personal performance. With respect
to the 2007 year, the annual cash bonus and the number of stock options that Employee shall
receive in the first quarter of 2008 for such 2007 year shall not be less than the aggregate
cash bonus compensation and the number of stock options that Employee received in the first
quarter of 2007 with respect to the 2006 year.




     3.3. Expenses. During the period that Employee is employed during the Term, Commerce
will reimburse Employee for all expenses incurred by him that Commerce determines to be
reasonable and necessary for him to carry out his duties under this Agreement. This
reimbursement will be in accord with Commerce’s normal reimbursement practices in effect now
or in the future.




     3.4 SERP. It is agreed and acknowledged that Employee is currently a participant in
Commerce’s Supplemental Executive Retirement Plan (“SERP”) and will continue to be eligible
for discretionary company contributions and continue to be credited with earnings credits in
accordance with the terms and conditions of the SERP. As of June 30, 2007, Employee had a
vested, nonforfeitable account balance of $1,101,912 with an additional earnings credit of
$27,548 scheduled to be credited to Employee’s account for the six-month period beginning on
July 1, 2007 and ending on December 31, 2007. Under the terms of the SERP, payment of
Employee’s accrued benefit will begin on Employee’s “benefit commencement date” (as defined
in the SERP), generally the 90th day following Employee’s termination of employment (other
than a termination for “good cause” as defined in the SERP); notwithstanding such provision,
the Parties hereto agree that Employee’s account balance and accrued benefit shall not be
subject to forfeiture or reduction for any reason or any termination. Such accrued benefit
will be paid in five annual installments on Employee’s “benefit commencement date,” unless
another distribution election is made in accordance with the terms of the SERP consistent
with Section 409A of the Code. For purposes of clarity, Commerce acknowledges and agrees
that the noncompetition provision in Section 4.3(b) of the SERP shall not apply to Employee
on and after the termination of his employment with Commerce.



Employment Agreement





 Page 3 of 21









 














4. Plans and Fringe Benefits and Special Provisions Regarding Commerce Banc Insurance
Services, Inc.




     4.1 Plans and Programs. During the period that Employee is employed during the Term,
Employee shall be entitled to participate in any bonus programs, incentive compensation
plans, stock option plans, stock purchase plans, 401(k) or similar retirement plans, or
similar benefit or compensation programs in effect now or in the future that are generally
made available to salaried officers of Commerce.




     4.2 Fringe Benefits. During the period that Employee is employed during the Term,
Employee shall also be entitled to:




     (a) Generally Available Benefits. Participate in all fringe benefits as then
in effect that are generally available to Commerce’s salaried officers including,
without limitation, personal or family medical, dental and hospitalization coverage;
personal life insurance coverage and disability coverage; Paid Time Off for holidays
and vacations annualized days.




     (b) Car Allowance. Receive a monthly car allowance of $1,200.00.




     (c) Country Club Membership. During the Term of his employment, Commerce will provide Employee with a “country club membership” in the
organization of his choice, and will reimburse him for all reasonable and necessary
expenses associated with such membership, including all membership fees and dues.
During his employment under this Agreement, Commerce shall also reimburse Employee
for all additional reasonable and necessary expenses he incurs in connection with
such membership that are related to the business of Commerce conducted at this
organization.




     (d) Other Benefits. Such other fringe benefits shall be deemed appropriate by
Commerce or a Commerce Board Committee.




     4.3 Insurance and Death Benefits.




     (a) Death. If Employee dies during the Term while employed under this
Agreement, then his employment and his rights to base salary under Section 3.1 of
this Agreement shall automatically terminate at the close of the calendar week in
which death occurs. Commerce shall pay to



Employment Agreement





 Page 4 of 21









 














such person as Employee shall designate in a notice filed with Commerce or, if no
such person shall be designated, to Employee’s estate, as a lump sum death benefit,
an amount equal to three times Employee’s annual base salary in effect at date of
death in addition to his full accrued but unpaid base salary to the date of
termination and any other compensation due him (including but not limited to any
remaining unpaid portion of the Change in Control Payment). The foregoing death
benefit shall be in addition to any amount payable under any group life insurance
program maintained by Commerce for salaried officers of Commerce.




     (b) Insurance. In the event of Employee’s “disability” as determined by
Commerce in accordance with Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), termination or resignation, all during the Term (unless
Employee is terminated for Cause or resigns Voluntarily), Employee shall, to the
fullest extent permitted by law, be entitled to participate, without cost to the
Employee, in all Commerce medical, disability, and hospitalization benefits for a
period of three years after such termination.




     4.4 Additional Expenses




     For a period of one year following the date of termination of employment
Without Cause or following a Change in Control, Employee shall receive reimbursement
for (i) all reasonable expenses incurred by Employee in connection with the search
for new employment, including, without limitation, those of a placement agency or
service; and (ii) all reasonable relocation expenses incurred by Employee in
connection with securing new employment; provided, however, in no event shall
Commerce be obligated to reimburse Employee hereunder in excess of 1/3 of his Base
Salary on the date of termination of employment.




     4.5 Commerce Banc Insurance Services, Inc.




(a) Sale of Commerce Insurance. Promptly on the beginning of the Term, Commerce
will negotiate with Employee to effect the sale of Commerce Banc Insurance Services,
Inc. (“Commerce Insurance”) to Employee or a group organized by Employee. Commerce
(1) agrees to negotiate fairly and in good faith and to use best efforts to cause
the negotiation to be completed on the 60th day after the beginning of
the Term, (2) agrees to use all commercially reasonable efforts to cause any
negotiated sale not to be disapproved by The Toronto-Dominion Bank as contemplated
by the agreement relating to the Merger and (3) agrees to



Employment Agreement





 Page 5 of 21









 














use all commercially reasonable efforts to cause any such negotiated and
non-disapproved sale to be completed as promptly as practicable.




     (b) [INTENTIONALLY OMITTED]




     (c) Effects of the Sale on Employee Under this Agreement. On consummation of a
sale contemplated by Section 4.5(a): (i) Employee will cease being an employee of
Commerce, (ii) such termination will be deemed a non-“Voluntary” resignation for all
purposes hereunder, other than for purposes of Employee’s base salary which shall
cease from the date of such sale (for purposes of clarity, and without limitation,
Commerce shall continue to pay to Employee, on the dates and in the amounts set
forth herein, the Change in Control Payments that would otherwise have been paid to
Employee had he continued in the employment of Commerce until the third anniversary
of the Closing Date, Employee shall continue to receive the health and other
insurances provided under this Agreement in the event of Employee’s non-Voluntary
resignation, all of Employee’s stock options shall remain outstanding and
exercisable for their entire term, and Employee will in all other respects be
treated as if the sale constituted his non-Voluntary resignation from Commerce), and
(iii) the non-competition and non-solicitation restrictions contained in Sections
9.2, 9.3 and 9.4 of this Agreement shall no longer apply, and all other non-compete,
non-solicitation or other similar restrictions contained in any other document or
agreement purporting to restrict, relating to, or otherwise applying to, Employee
shall no longer apply from and after such sale. If the agreement to effectuate such
sale is not entered into within 60 days of the beginning of the Term or such
agreement is disapproved by The Toronto-Dominion Bank as contemplated under the
agreement relating to the Merger or otherwise terminates without the sale being
consummated (the “Non-Sale Condition”), Employee may terminate his employment with
Commerce at any time thereafter by giving Commerce thirty (30) days written notice
and such termination will be deemed a non-“Voluntary” resignation for all purposes
hereunder. For the avoidance of doubt, following such termination, (1) Commerce
shall continue to pay to Employee, on the dates and in the amounts set forth herein,
the base salary and the Change in Control Payments that would otherwise have been
paid to Employee had he continued in the employment of Commerce until the third
anniversary of the Closing Date, Employee shall continue to receive the health and
other insurances provided under this Agreement in the event of Employee’s
non-Voluntary resignation, all of Employee’s stock options shall remain outstanding
and exercisable for their entire term, and Employee will in all other respects be
treated as if the sale constituted his non-Voluntary resignation from Commerce), and
(2) the term of the non-



Employment Agreement





 Page 6 of 21









 














competition and non-solicitation restrictions in Sections 9.2, 9.3 and 9.4 of
this Agreement shall expire on the later of (i) three (3) months following the date
the Non-Sale Condition is satisfied and (ii) 30 days following the Closing Date, and
all other non-compete, non-solicitation or other similar restrictions contained in
any other document or agreement purporting to restrict, relating to, or otherwise
applying to, Employee shall no longer apply from and after such termination. In
addition, in the event of a termination by Employee following a Non-Sale Condition,
Commerce agrees to reduce the term of any non-compete, non-solicitation or other
similar restrictions contained in any document or agreement purporting to restrict,
relating to, or otherwise applying to any direct or indirect employee of Commerce
Insurance (each, a “Commerce Insurance Employee”) to the later of (i) three (3)
months following the date the Non-Sale Condition is satisfied and (ii) 30 days
following the Closing Date, in either case if the Commerce Insurance Employee
becomes an employee or agent of Employee or any entity with which he is associated.




4.6 Stock Options. On any termination of Employee’s employment for any reason
after a Change in Control (other than for Cause), all of Employee stock options
shall remain outstanding and exercisable for their entire term.



     5. Definitions




     For purposes of this Agreement, the following terms have the following meanings:




     The term “Cause” shall be deemed to mean the following:




     (a) If at any time during the Term, Employee is indicted for, convicted of or
enters a plea of guilty or nolo contendere to a felony (or a crime classified under
New Jersey law of the first, second or third degree) or crime of falsehood or
dishonesty or a crime involving moral turpitude, or his license or licenses related
to his employment are revoked, lost, suspended or similarly affected; or




     (b) If at any time during the Term, Employee willfully violates any of the
material terms of this Agreement, including, without limitation, willful failure to
materially perform his duties hereunder (for reasons other than incapacity due to
illness or disability), or Employee’s engaging in conduct materially harmful to
Commerce’s business and operations, provided that, where curable, Employee has been
provided written notice of the conduct at issue and period of thirty (30) days to
cure or correct



Employment Agreement





 Page 7 of 21









 














such
conduct. The term “Voluntarily” or “Voluntary” when used with respect to a termination by
Employee shall not include any termination by Employee (i) by reason of his death, (ii) by
reason of his “disability” as determined by Commerce in accordance with Section 409A of the
Code, and (iii) both (x) if a “Change in Control” of Commerce (as defined in Section 8.1)
shall have occurred and (y) within three years after such Change in Control, any of the
following occur without the written consent of Employee:




     (a) Reduction of Authority. The nature and scope of Employee’s authority with
Commerce or a surviving or acquiring Person are materially reduced to a level below
that which Employee enjoys when the change in control occurs;




     (b) Materially Inconsistent Duties. The duties and responsibilities assigned
to Employee are materially inconsistent with that which Employee has when the change
in control occurs;




     (c) Materially Reduced Benefits. The fringe benefits which Commerce provides
Employee are materially reduced to a level below that which he enjoys when the
change of control occurs;




     (d) Reduction of Position or Title. Employee’s position or title with Commerce
or the surviving or acquiring person is reduced from his position or title with
Commerce when the change of control occurs;




     (e) Transfer of Offices and Relocation. Any relocation or transfer of
Commerce’s principal executive offices to a location more than fifty (50) miles from
their locations when the change of control occurs; or if Employee is required,
without his written consent, to relocate more than fifty (50) miles from his
principal residence when the change of control occurs;




     (f) Material Breaches. Commerce materially breaches this Agreement;




     (g) Non-Assumption. There is a failure or refusal of any successor to Commerce
to assume all duties and obligations of Commerce under this Agreement; or




so long as, with respect to clause (iii), (1) Employee shall first give Commerce not less
than thirty (30) days prior written notice of his intention to terminate his employment
specifying the reason(s) why such termination is not Voluntarily as



Employment Agreement





 Page 8 of 21









 














set forth above and the date of termination; and (2) after receipt of such notice, if
Commerce fails to cure or remedy the reason(s) for such termination before the date of
termination set forth in such notice. Notwithstanding the foregoing, by executing this
Agreement, Employee agrees that none of the events described in clauses (a) through (g)
shall be deemed to occur solely due to the fact that (i) as a result of the consummation of
the Merger (as defined in Section 8.1 below), Commerce ceases to be a publicly held
corporation (and as such, Employee’s title, duties and responsibilities are no longer those
held at a publicly held corporation), and (ii) the Employee will report to the President and
CEO of TD Banknorth NA, and TD Banknorth, Inc.



     6. Compensation for “Change in Control.”




     If a “Change in Control” (as defined in Section 8.1) shall occur during the Term of
this Agreement, then Employee shall be entitled to a “Change in Control Payment” which shall
be equal to an aggregate amount of $7,591,500.00, the payment of which is subject to this
Section 6. The Change in Control Payment shall be paid by Commerce in four (4) equal
installments equal to $1,897,875.00 each, less applicable withholding taxes, with the first
installment being paid on the Closing Date or January 1, 2008 (whichever occurs later), and
the remaining installments being paid on each successive anniversary of the Closing Date
until all installments have been paid. Notwithstanding the foregoing, if Employee
terminates employment Voluntarily or if Commerce terminates Employee’s employment with
Commerce for Cause, in either case prior to the third anniversary of the Closing Date,
Employee shall not be entitled to receive, and Commerce shall have no further obligation to
pay, any remaining unpaid installment(s) of the Change in Control Payment (for purposes of
clarity, the foregoing are the only circumstances pursuant to which the Change in Control
Payment will not be fully paid to Employee on the respective anniversary dates set forth
above).



     7. 280G Cut-Back and Other Provisions




     7.1 Parachute Payments. Upon a payment event under this Agreement, Commerce shall
promptly determine whether such payment is considered a “parachute payment” under Section
280G of the Code, and, if so, the aggregate present value pursuant to Section 280G(d)(4) of
the Code of all amounts payable to Employee under this Agreement, and of all other amounts
payable to him upon or by reason of the “Change in Control” or 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.



Employment Agreement







 Page 9 of 21









 














     (a) Determination. Commerce’s determination of present value and of other
amounts constituting “parachute payments” is binding; provided that (1) Commerce use
all commercially reasonable efforts to determine the maximum portion of such present
value and other amounts that constitute “reasonable compensation” under Section 280G
of the Code and the regulations promulgated thereunder) and (2) if Employee 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,” then calculations will
be made in accordance with such opinion or ruling.




     (b) Waiver for Base Amount Equal to or Over 300%. If the aggregate present
value of all benefits under this Agreement and other “parachute payments” is equal
to or in excess of 300% of Employee’s “base amount” as defined in Section 280G
(b)(3)(A) and the regulations thereunder, then Employee waives the right to
“parachute payments” sufficient to reduce the present value of all such payments
below 300% of the “base amount.” Employee 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 Employee, Commerce may designate those benefits which
may be waived or reduced.




     (c) Payment on Non-Deductibility. 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 Commerce and Employee in applying
the terms of this Section 7, the aggregate “parachute payments” paid to or for
Employee’s 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 Employee 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
Employee’s 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 Employee’s receipt of such excess until the date of such payment.




     7.2 Plans and Program Rights. Except as provided in this Section 7,


Employment Agreement





 Page 10 of 21









 














nothing in this Agreement shall affect or have any bearing on Employee’s entitlement to
other benefits under any plan or program providing benefits by reason of termination of
employment.




     7.3 No Mitigation by Employee. Anything in this Agreement to the contrary
notwithstanding, Employee shall not be required to mitigate the amount of any payment
provided for in this Agreement by seeking other employment, nor shall there be a right to
set off.



     8. “Change in Control” Definition.




     8.1 “Change in Control”. For this Agreement, a “change in control” or “change of
control” means the occurrence of any one of the following events:




     (a) individuals who constitute the Board as of the date of the adoption of
this Agreement (the “Incumbent Directors”) cease for any reason to constitute at
least a majority of the Board, provided that any person becoming a director
subsequent to the date of this Agreement, whose election or nomination for
election was approved by a vote of at least two-thirds of the Incumbent Directors
then on the Board (either by a specific vote or by approval of the proxy statement
of Commerce in which such person is named as a nominee for director, without
written objection by such Incumbent Directors to such nomination) shall be deemed
to be an Incumbent Director; provided, however, that no individual elected or
nominated as a director of Commerce initially as a result of an actual or
threatened election contest with respect to directors or as a result of any other
actual or threatened solicitation of proxies by or on behalf of any person other
than the Board shall be deemed to be an Incumbent Director;




     (b) any “person” (as such term is defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of Commerce representing 30% or more of the combined voting power of
Commerce’s then outstanding securities eligible to vote for the election of the
Board (the “Company Voting Securities”); provided, however, that the event
described in this paragraph (b) shall not be deemed to be a Change in Control by
virtue of any of the following acquisitions: (A) by Commerce, (B) by any employee
benefit plan sponsored or maintained by Commerce, or by any employee stock benefit
trust created by Commerce, (C) by any underwriter temporarily holding securities
pursuant to an offering of such securities, or (D) pursuant to a Non-



Employment Agreement





 Page 11 of 21









 












Qualifying Transaction (as defined in paragraph (c)); or



     (c) the consummation of a merger, consolidation, share exchange or similar
form of corporate transaction involving Commerce or any of its Subsidiaries that
requires the approval of Commerce’s shareholders, whether for such transaction or
the issuance of securities in the transaction (a “Business Combination”), unless
immediately following such Business Combination: (A) more than 50% of the total
voting power of (x) the corporation resulting from the consummation of such
Business Combination (the “Surviving Corporation”), or (y) if applicable, the
ultimate parent corporation that directly or indirectly has beneficial ownership
of 100% of the voting securities eligible to elect directors of the Surviving
Corporation (the “Parent Corporation”), is represented by Company Voting
Securities that were outstanding immediately prior to such Business combination
(or, if applicable, is represented by shares into which such Company Voting
Securities were converted pursuant to such Business Combination), and such voting
power among the holders thereof is in substantially the same proportion as the
voting power of such Company Voting Securities among the holders thereof
immediately prior to the Business Combination, (B) no person (other than any
employee benefit plan sponsored or maintained by the Surviving Corporation or the
Parent Corporation or any employee stock benefit trust created by the Surviving
Corporation or the Parent Corporation), is or becomes the beneficial owner,
directly or indirectly, of 30% more of the total voting power of the outstanding
voting securities eligible to elect directors of the Parent Corporation (or, if
there is no Parent Corporation, the Surviving Corporation) and (C) at least a
majority of the members of the board of directors of the Parent Corporation (or,
if there is no Parent Corporation, the Surviving Corporation) following the
consummation of the Business Combination were Incumbent Directors at the time of
the Board’s approval of the execution of the initial agreement providing for such
Business Combination (any Business Combination which satisfies all of the
criteria specified in (A), (B) and (C) above shall be deemed to be a
“Non-Qualifying Transaction”).




     Notwithstanding the foregoing, a Change in Control of Commerce shall not be
deemed to occur solely because any person acquires beneficial ownership of more
than 30% of Commerce Voting Securities as a result of the acquisition of Company
Voting Securities by Commerce which reduces the number of Company Voting
Securities outstanding; provided, that if after such acquisition by Commerce such
person becomes the beneficial owner of additional Company Voting



Employment Agreement





 Page 12 of 21









 














Securities that increases the percentage of outstanding Company Voting Securities
beneficially owned by such person, a Change in Control of Commerce shall then
occur.




     For purposes of clarity, it is acknowledged that the consummation of the
transaction contemplated by the Agreement and Plan of Merger, dated as of the
Effective Date (the “Merger Agreement”), by and between The Toronto-Dominion
Bank, Cardinal Merger Co. and Commerce (the “Merger”), shall constitute a Change
in Control of Commerce (the foregoing not being the exclusive list of
transactions that could possibly result in a Change in Control as defined
herein).



     9.
Confidential Information, Non-Competition and Non-Solicitation.




     9.1 Confidentiality.




     (a) Company Information. For purposes of this Agreement, Employee acknowledges
and agrees that the term “Company Information” shall mean information that Commerce
owns or possesses, that it has developed at significant expense and effort, that it
uses or is potentially useful in its business, that it treats as proprietary,
private or confidential, and that is not generally known to the public, including
but not limited to client lists, referral lists, employee lists, financial data,
marketing programs of Commerce, other specialized facts regarding customers of
Commerce, and all other papers, documents and computer records containing such
information; provided, however, that Company Information shall not mean information
that is or becomes publicly available by means other than unauthorized disclosure.




     (b) Non-Disclosure Non-Use. Employee covenants and agrees that during the Term
of his employment or at any time thereafter he will (1) keep all company
information strictly confidential and that he will not use such information for any
purpose whatsoever or divulge such information to any Person other than Commerce or
Persons with respect to whom Commerce has given its written consent to divulge such
information; (2) safeguard Commerce’s Company Information from exposure to, or
appropriation by unauthorized Persons, and that he will not, without the prior
written consent of Commerce, divulge, reveal, report, publish, transfer or use for
any purpose whatsoever (except as required by law), such Company Information.



     (c) Upon termination of Employee’s employment hereunder for



Employment Agreement





 Page 13 of 21









 














any reason
whatsoever, Employee covenants and agrees that he will return to Commerce all such
Company Information, and any and all other property belonging to Commerce which is
in his possession or under his control. Employee further covenants and agrees that
under no circumstances will he remove from the offices of Commerce any of its books,
records, documents, customer lists, or copies thereof, which constitute Company
Information nor will he make any copies thereof outside of the office except as
personally authorized in writing by Commerce.




     9.2 Commerce’s Interests. Employee will not, while he is employed during the Term,
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 Employee
acting reasonably, believes or should believe would be harmful or inimical to the interests
of Commerce.




     9.3 Non-Competition. Employee further covenants and agrees that while he is employed
by Commerce, and for a period of six (6) months after his employment with Commerce has been
terminated for any reason whatsoever (unless, at or following the time of such termination,
the Non-Sale Condition set forth in Section 4.5 hereof is satisfied, in which case the
period shall be reduced to the later of (i) three (3) months following the date the Non-Sale
Condition is satisfied and (ii) 30 days following the Closing Date), he will not directly or
indirectly, on his own behalf or for the benefit of any natural person, corporation,
partnership, trust, estate, joint venture, sole proprietorship, association, cooperative or
other entity, establish, engage or participate in or otherwise be connected with any
commercial insurance brokerage business which conducts business in any geographic area in
which Commerce conducts business . The foregoing shall not prohibit Employee from owning as
a shareholder less than 5% of the outstanding voting stock of an issuer whose stock is
publicly traded. Further, all other non-compete, non-solicitation or other similar
restrictions contained in any other document or agreement purporting to restrict, relating
to, or otherwise applying to, Employee shall no longer apply.




     9.4 Non-Solicitation. Employee covenants and agrees that during the term of his
employment and for period of six (6) months after his employment with Commerce has been
terminated for any reason whatsoever (unless, at or following the time of such termination,
the Non-Sale Condition set forth in Section 4.5 hereof is satisfied, in which case the
period shall be reduced to the later of (i) three (3) months following the date the Non-Sale
Condition is satisfied and (ii) 30 days following the Closing Date), he will not directly or indirectly, for his own



Employment Agreement





 Page 14 of 21









 














behalf or
for the benefit of any other Person or entity solicit, aid in solicitation of, induce,
encourage, or in any way cause any Commerce employee to leave the employ of Commerce.




     9.5 Intellectual Property. All rights, including without limitation, Intellectual
Property Rights (as hereinafter defined), title, and interest in and to ideas, inventions,
methods, works of authorship, designs, analyses, drawings, reports or processes, and all
similar or related information, and all components and derivatives thereof, whether
completed or not, relating to Commerce’s actual or anticipated business, research and
development, or existing or future products or services that are conceived, developed, or
made by the undersigned while employed by Commerce (“Work Product”), shall lie exclusively
in Commerce. All works and all components thereof comprised by the Work Product, including,
but not limited to, all masks, databases, written materials, and other reductions of
expression into tangible media, whether completed or not, were and are works made for hire
and all right, title and interest (in every country, in all media, now existing or created
in the future, and for the entire duration of such rights) in such works lie, upon creation,
exclusively with Commerce, and Employee reserves no rights in such works.




     (a) To the extent that some or all rights, including without limitation,
Intellectual Property Rights, title and interest in and to the Work Product do not
lie, upon creation, exclusively with Commerce, Employee irrevocably sells, assigns,
transfers, and sets over to Commerce all rights, including without limitation,
Intellectual Property Rights title and interest in and to the Work Product or any
component of the Work Product, whether completed or not (in every country, in all
media, now existing or created in the future, and for the entire duration of such
rights), exclusively to Commerce.




     (b) Employee shall, at Commerce’s expense, cooperate and take all steps
reasonably requested by Commerce to perfect, confirm, and protect Commerce’s
worldwide rights, including without limitation, Intellectual Property Rights, title,
and interest in and to the Work Product including without limitation, executing and
delivering all documents, filing registration and assignment documents, and giving
testimony.




     (c) For purposes of this Agreement, Employee acknowledges and agrees that the
term “Intellectual Property Rights” shall mean all intellectual property rights
worldwide arising under statutory or common law, and whether or not perfected,
including without limitation, all (a) patents, reissues of and reexamined patents,
and patent applications, whoever filed and wherever issued, including without limitation,



Employment Agreement





 Page 15 of 21









 














continuations,
continuations-in part, substitutes, and divisions of such applications and all
priority rights resulting from such applications, (b) rights associated with works
of authorship including copyrights, copyright applications, copyright registrations,
mask work rights, mask work applications, mask work registrations, (c) rights
relating to the protection of trade secrets and confidential information, (d) rights
analogous to those set forth in this definition and any and all other proprietary
rights relating to intangible property and (e) divisions, continuations, renewals,
reissues and extensions of the foregoing (as and to the extent applicable) now
existing, hereafter filed, issued, or acquired.




     9.6 Remedies. If this Agreement expires without a successor agreement or is
terminated, the restrictions contained in this Section 9 above shall remain in full force
and effect for a period of twelve (12) months after Employee’s employment with Commerce
terminates for whatever reason.




     (a) Employee hereby acknowledges and agrees that Commerce’s business and
services are highly competitive, and that the restrictions contained in Section 9
are reasonable and necessary to protect Commerce’s legitimate business interests.
Employee further acknowledges that in the event his employment with Commerce
terminates, he will still be able to earn a livelihood without violating this
Agreement, and that compliance with Section 9 is a material condition to his
employment and continued employment with Commerce.




     (b) The parties agree that any breach by Employee 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 seek an injunction
issued by any competent court enjoining and restraining Employee and/or any other
Person involved therein from continuing such breach. The existence of any claim or
cause of action which Employee 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.




     9.7 Enforceability. 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



Employment Agreement





 Page 16 of 21









 














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 duration
thereof or the scope thereof, then the court making such determination shall have the power
to reduce the duration and/or limit the scope thereof, and the covenant or agreement shall
then be enforceable in its reduced form.




     9.8 Notifications. During the Term of this Agreement and the restricted period
specified in this Section 9 hereof, Employee agrees to notify any prospective employers,
joint venturers, partners, associations or other entities, of this Agreement with Commerce;
and/or if Employee accepts employment or establishes a relationship with a competitor of
Commerce, Employee agrees to notify Commerce immediately of such relationship. If Commerce
reasonably believes that Employee is affiliated or employed by or with a competitor of
Commerce during the restricted period specified in this Section 9, then Employee grants
Commerce the right to forward a copy of this Agreement to such competitor/employer.




     9. 9 Extensions. If a violation by Employee of any of the covenants contained in
Section 9 of this Agreement occurs, he agrees that the restrictive period, as set forth in
this Section, so violated shall be extended by a period of time equal to the period of such
violation by him. It is the intent of this paragraph that the running of the restricted
period shall be tolled during any period of violation of such covenant so that Commerce
shall get the full and reasonable protection for which it contracted and so that an Employee
may not profit by the breach.




     9.10 Sale of Commerce Insurance. If Employee’s employment with Commerce is terminated
in connection with the consummation of a sale of Commerce Insurance as contemplated by
Section 4.5, Sections 9.2, 9.3 and 9.4 shall cease to apply.



     10. Successors and Assigns.




     10.1 Successors/Assigns. This Agreement shall inure to the benefit of and be binding
upon any corporate or other successor of Commerce which may acquire, directly or indirectly,
by combination, 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 on
Commerce and Employee and their respective heirs, executors, administrators, successors and
assigns.



Employment Agreement





 Page 17 of 21









 















     10.2 Death. Upon Employee’s death, any payments or benefits otherwise due him under
this Agreement shall be paid to, or be for the benefit of, Employee’s legal representatives.




     10.3 Combinations. Nothing in the Agreement shall preclude Commerce from combining,
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 combination, 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.




     11.1 Neither this Agreement, nor any rights to receive payments under this Agreement,
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, this Agreement and such payment rights shall not be subject to anticipation, levy,
execution, garnishment, attachment by, or interference or control of, any creditor.



     12.  Source of Payment and Timing.




     12.1 Source. 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 by Commerce; and Employee shall have no right, title or interest whatsoever in
or to any investment that Commerce may make to aid Commerce in meeting any obligations under
this Agreement 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 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 Employee or any other Person.



     13. Notices.




     13.1 Form of Notice. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given if delivered
by: hand with delivery receipt; or certified or registered mail, return receipt requested,
with postage prepaid; or overnight or express courier with a receipt-for-delivery tracking
system.


     13.2 Place of Notice. All notices are to be delivered to the following



Employment Agreement





 Page 18 of 21









 














addresses or to such other address as either party may designate by like notice:




i) If to Employee, to the address of Employee on the books and
records of Commerce from time to time




ii) If to Commerce, to:

Office of the Chairman

Commerce Bancorp, Inc.

Commerce Atrium

1701 Route 70 East

Cherry Hill, New Jersey 08034-5400




and to such other or additional person or persons as either party shall have designated to
the other party in writing by like notice.



     14. General Provisions.




     14.1 Entire Agreement. Nothing in this Agreement shall require the payment of any
amounts hereunder to the extent not permitted by applicable law. This Agreement
constitutes the entire agreement between Commerce and Employee concerning its subject
matter. It supersedes and replaces all prior discussions, representations, promises or
agreements, whether written or oral, expressed or implied, between Employee, Commerce or
their representatives.




     14.2 Amendments, Waivers and Termination. No amendment, waiver or termination of any
of the provisions of this Agreement shall be effective unless made in writing and signed by
the party against whom it is sought to be enforced. Any written amendment, waiver or
termination of this Agreement executed by Commerce and Employee (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,
Employee’s spouse, and no Person shall be deemed to be a third party beneficiary under this
Agreement except to the extent provided under Section 10.1 above.




     14.3 Benefits and Insurance. The benefits provided under this Agreement shall be in
addition to and shall not affect the proceeds payable to Employee’s beneficiaries under
group life insurance policies which Commerce may be carrying on Employee’s life.




     14.4 “Person”. As used in this Agreement, “Person” means a natural person, joint
venture, corporation, sole proprietorship, trust, estate, partnership, cooperative,
association, non-profit organization or any other legal entity.


Employment Agreement





 Page 19 of 21









 














     14.5 Counterparts. This Agreement may be signed 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.




     14.6 Waiver. Except as otherwise expressly stated in this Agreement, no failure by
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 under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.




     14.7 New Jersey Exclusive Jurisdiction. Commerce and Employee irrevocably, knowingly
and expressly consent to:




     (a) Courts in Camden, NJ. The exclusive jurisdiction of the Superior Court,
Chancery or Law Division, Camden County, New Jersey, or the United States District
Court for the District of New Jersey, Camden Vicinage, to enforce this Agreement, or
to resolve any claim, controversy or dispute involving it; and




     (b) Service of Process. Service of process as set forth in the Notice stated
in Section 13 above.




          14.8 Reimbursement Expenses. If Commerce fails to pay any amounts due Employee
hereunder, or fails to provide Employee with any other benefit due him under this Agreement,
and provided Commerce does not cure any such failure within thirty (30) days after having
received written notice from Employee of such failure, Employee shall be entitled to full
reimbursement from Commerce for all costs and expenses, including reasonable attorneys’ fees
and costs, incurred by Employee in enforcing his rights under this Agreement.




          14.8 Headings. The headings of the sections of this Agreement have been inserted for
convenience and clarity. They do not restrict or modify any of the terms or provisions of
this Agreement.




          14.9 Cure. If Commerce or Employee has a dispute or claim under this Agreement, then
that dispute or claim shall be described with specificity in writing and sent according to
the Notice stated in Section 13 above; and, the party receiving such written notice shall
have ten (10) business days to cure the dispute or claim.




          14.10 New Jersey Law Governs. This Agreement shall be governed and construed and the
legal relationships of the parties determined in



Employment Agreement





 Page 20 of 21









 














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.




        IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day
and year first above written.



	 	 	 	 	 
	 	COMMERCE BANCORP, INC.

 	 
	 	By:  	/s/ Douglas J. Pauls
 	 
	 	 	Name:  	Douglas J. Pauls 	 
	 	 	Title:  	Executive Vice President and 
Chief Financial Officer 	 
	 
	 	EMPLOYEE

 	 
	 	/s/ George E. Norcross, III
 	 
	 	George E. Norcross, III 	 
	 	 	 
	 




Employment Agreement




 Page 21 of 21