EXHIBIT 10.2
AMENDED AND
RESTATED
CHANGE IN CONTROL
AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT is
dated this
day of
, between
Provident Financial Services, Inc. (the “Company”), a
Delaware corporation, and the holding company of The Provident Bank
(the “Bank”), and
(the “Executive”). The Company and the Bank are
sometimes collectively referred to as the
“Employers”.
WITNESSETH
WHEREAS , the Executive is presently an officer of the
Bank;
WHEREAS , the Company desires to be ensured of the
Executive’s continued active participation in the business of
the Bank and the Company; and
WHEREAS , in order to induce the Executive to remain in
the employ of the Bank and to provide further incentive to achieve
the financial and performance objectives of the Bank and the
Company, the parties have specified the severance benefits which
shall be due the Executive in the event that his employment with
the Bank or the Company is terminated under specified circumstances
pursuant to a Change in Control Agreement dated
200 , (such
agreement, the “Prior Agreement” and such date, the
“Initial Effective Date”); and
WHEREAS , the parties desire to amend and restate the
Prior Agreement pursuant to Section 12 thereof, for the
purpose, among others, of compliance with the applicable
requirement of Section 409A of the Internal Revenue Code of
1986;
NOW THEREFORE
, in consideration of the mutual
agreements herein contained, and upon the other terms and
conditions hereinafter provided, the parties hereby agree as
follows:
1. Definitions.
The following words and terms shall
have the meanings set forth below for the purposes of this
Agreement:
(a) Annual Compensation . The
Executive’s “Annual Compensation” for purposes of
this Agreement shall be deemed to mean the highest level of
aggregate base salary and other cash compensation paid to the
Executive (including cash compensation deferred at the election of
the Executive) by the Employers or any subsidiary thereof
(i) during the calendar year in which the Date of Termination
occurs (determined on an annualized basis), or (ii) either of
the two calendar years immediately preceding the calendar year in
which the Date of Termination occurs, whichever is greater. For
purposes of this definition, payments of deferred compensation
shall be disregarded when paid and deferral of compensation at the
Executive’s election shall be included as compensation
exclusively in the year of deferral.
(b) Cause . Termination of
the Executive’s employment for “Cause” shall mean
termination because of personal dishonesty, willful misconduct,
breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law,
rule or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order. For purposes of this
paragraph, no act or failure to act on the Executive’s part
shall be
considered “willful”
unless done, or omitted to be done, by the Executive not in good
faith and without reasonable belief that the Executive’s
action or omission was in the best interests of the Employers.
Executive’s employment shall not be terminated for
“Cause” in accordance with this paragraph for any act
or action or failure to act which is undertaken or omitted in
accordance with a resolution of the Company’s board of
directors (“Board of Directors”) or upon advice of the
Company’s counsel.
(c) 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
aggregate 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
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(B) individuals who first became
members of the Company’s Board of Directors after the Initial
Effective Date either:
(1) 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
(2) 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 1(c)(i), (ii), (iii) or (iv) 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 1(c), the term “person” shall include
the meaning assigned to it under Sections 13(d)(3) or 14(d)(2) of
the Exchange Act.
(d) Code . “Code”
shall mean the Internal Revenue Code of 1986.
(e) Date of Termination .
“Date of Termination” shall mean (i) if the
Executive’s employment is terminated for Cause, the date on
which the Notice of Termination is given, and (ii) if the
Executive’s employment is terminated for any other reason,
the date specified in the Notice of Termination.
(f) Disability . Termination
by the Employers of the Executive’s employment based on
“Disability” shall mean termination because of any
physical or mental impairment which qualifies the Executive for
disability benefits under the applicable long-term disability plan
maintained by the Employers or any subsidiary or, if no such plan
applies, which would qualify the Executive for disability benefits
under the Federal Social Security System.
(g) Good Reason . Termination
by the Executive of the Executive’s employment for
“Good Reason” shall mean termination by the Executive
following a Change in Control based on:
(i) Without the Executive’s
express written consent, the assignment by the Company or the Bank
to the Executive of any duties which are materially inconsistent
with the Executive’s positions, duties, responsibilities and
status with the Employers immediately prior to a Change in Control,
or a material change in the Executive’s reporting
responsibilities, titles or offices as an officer and employee and
as in effect immediately prior to such a Change in Control, or any
removal of the Executive from or any failure to re-elect the
Executive to any of such responsibilities, titles or offices,
except in connection with the termination of the Executive’s
employment for Cause, Disability or Retirement or as a result of
the Executive’s death or by the Executive other than for Good
Reason;
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(ii) Without the Executive’s
express written consent, a reduction in the Executive’s base
salary as in effect immediately prior to the date of the Change in
Control or as the same may be increased from time to time
thereafter or a reduction in the package of fringe benefits
provided to the Executive as in effect immediately prior to the
date of the Change in Control;
(iii) A change in the
Executive’s principal place of employment by a distance in
excess of 25 miles from its location immediately prior to the
Change in Control;
(iv) Any purported termination of
the Executive’s employment for Disability or Retirement which
is not effected pursuant to a Notice of Termination satisfying the
requirements of paragraph (i) below; or
(v) The failure by the Company to
obtain the assumption of and agreement to perform this Agreement by
any successor as contemplated in Section 10 hereof.
(h) IRS . IRS shall mean the
Internal Revenue Service.
(i) Notice of Termination .
Any purported termination of the Executive’s employment by
the Employers for any reason, including without limitation for
Cause, Disability or Retirement, or by the Executive for any
reason, including without limitation for Good Reason, shall be
communicated by written “Notice of Termination” to the
other party hereto. For purposes of this Agreement, a “Notice
of Termination” shall mean a dated notice which
(i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision
so indicated, and (iii) specifies a Date of Termination, which
shall be not less than thirty (30) nor more than ninety
(90) days after such Notice of Termination is given, except in
the case of the Employers’ termination of the
Executive’s employment for Cause, which shall be effective
immediately; and (iv) is given in the manner specified in
Section 11 hereof.
(j) Retirement .
“Retirement” shall mean termination of
Executive’s employment (a) at age 65 or in accordance
with any retirement policy established with Executive’s
consent with respect to him or (b) at such later time as the
Company’s Board of Directors or an authorized committee
thereof may determine. Upon termination of Executive upon
Retirement, no amounts or benefits shall be due Executive under
this Agreement, and the Executive shall be entitled to all benefits
under any retirement plan of the Bank and other plans to which
Executive is a party.
2. Term of
Agreement. The term of this Agreement shall
be for twenty-four (24) months, commencing on the Initial
Effective Date. During each calendar year that begins prior to the
Effective Date, commencing on the first anniversary of the Initial
Effective Date, on each annual anniversary thereafter, the term of
this Agreement shall extend for an additional twelve
(12) 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 term of this Agreement shall cease at the end of twenty-four
(24) months following such anniversary date. On
April 1 st of each calendar year that
begins on or after the Effective Date, the Agreement
shall
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renew for an additional year such that the
remaining term shall be twenty-four (24) 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 term of this Agreement shall cease at the end of
twenty-four (24) 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. References herein to the term of this Agreement shall
refer both to the initial term and successive terms. A Notice of
Termination shall be presumed to constitute a notice of a
determination not to extend the Agreement.
3. Benefits Upon
Termination. If the
Executive’s employment by the Company or the Bank is
terminated subsequent to a Change in Control and during the term of
this Agreement by (i) the Company or Bank for other than
Cause, Disability, Retirement or the Executive’s death or
(ii) the Executive for Good Reason, then the Company or the
Bank shall:
(a) pay the Executive 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;
(b) pay to the Executive the annual
bonus (if any) to which he is entitled under an
