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Exhibit
10.7
CHANGE IN CONTROL
AGREEMENT
This Change in Control
Agreement (this “Agreement”) is entered into this 26
th
day of July, 2007, by and
between Cape Savings Bank (the “Bank”), a New Jersey
chartered savings bank, and Wayne S. Hardenbrook
(“Executive”), and is to be effective as of the
effective time of the Merger (as defined below) of Boardwalk Bank
into the Bank (the “Effective Date”). References to the
“Company” mean Cape Bancorp, Inc., a Maryland
corporation and the holding company of the Bank.
WHEREAS , the
Executive has been employed as an officer of Boardwalk Bank and
Boardwalk Bancorp, Inc. (collectively, “Boardwalk”);
and
WHEREAS , Boardwalk
Bancorp, Inc. is to be acquired by the Company pursuant to an
Agreement and Plan of Reorganization by and between the Company,
the Bank and Boardwalk Bancorp, Inc. and Boardwalk Bank dated
July 26, 2007 (“Merger Agreement”), and pursuant
to which Boardwalk Bancorp, Inc. will merge into the Company (or a
Company subsidiary, followed by a liquidation of Boardwalk Bancorp,
Inc. into the Company) with the Company as the surviving entity,
and Boardwalk Bank will merge into the Bank, with the Bank as the
surviving entity (referred to as the
“Merger”);
WHEREAS , the Bank
wishes to provide economic assurances to Executive in certain
circumstances, as specified herein;
NOW, THEREFORE , in
consideration of the mutual covenants herein contained, and upon
the other terms and conditions hereinafter provided, the parties
hereto agree as follows:
This Agreement shall commence
as of the Effective Date and shall continue thereafter for a period
of two (2) years. Commencing on the first anniversary date of
this Agreement (the “Anniversary Date”), and continuing
on each Anniversary Date thereafter, the term of this Agreement
shall renew for an additional year such that the remaining term of
this Agreement is always two (2) years, unless written notice
of non-renewal (a “Non-Renewal Notice”) is provided to
Executive at least thirty (30) days and not more than sixty
(60) days prior to any such Anniversary Date, in which case
the term of this Agreement shall become fixed and shall end two
(2) years following such Anniversary Date.
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PAYMENTS TO EXECUTIVE UPON CHANGE IN CONTROL |
This Agreement provides for
certain payments and benefits to Executive only in the event of a
Change in Control (as herein defined) followed by the termination
of Executive’s employment with the Bank, as set forth in this
Agreement.
(a) Upon the occurrence of a
Change in Control followed by Executive’s voluntary
termination of employment in accordance with this
Section 2(a), or involuntary termination of Executive’s
employment, other than for Cause (as herein defined), the
provisions of Section 3 shall apply. Upon the occurrence of a
Change in Control, Executive shall have the right to elect to
voluntarily terminate his employment with the Bank at any time
during the term
of this Agreement following;
(i) 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; (ii) a relocation of Executive’s principal place
of employment to a location that is more than 50 miles from the
location of the Bank’s principal executive offices as of the
Effective Date of this Agreement; or (iii) a material
reduction in the benefits and perquisites, including base salary,
to Executive from those being provided as of the Effective
Date.
(b) The term “Change in
Control” shall mean:
(i) a change in control of a
nature that would be required to be reported in response to
Item 5.01(a) of the current report on Form 8-K, as in effect
on the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”); or
(ii) a change in control of
the Bank or Company within the meaning of the Home Owners’
Loan Act, as amended, and applicable rules and regulations
promulgated thereunder, as in effect at the time of the Change in
Control; or
(iii) any of the following
events, upon which a Change in Control shall be deemed to have
occurred:
(A) any “person”
(as the term is used in Sections 13(d) and 14(d) of the Exchange
Act) is or becomes the “beneficial owner” (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Bank or Company representing 25% or more of the
combined voting power of such outstanding securities, except for
any securities purchased by an employee stock ownership plan or
trust established by the Bank; or
(B) individuals who
constitute the Board on the Effective Date (the “Incumbent
Board”) cease for any reason to constitute a majority
thereof, provided that any person becoming a director subsequent to
the Effective Date whose election was approved by a vote of at
least three-quarters of the directors comprising the Incumbent
Board, or whose nomination for election by stockholders of the Bank
or Company was approved by the same Nominating Committee serving
under an Incumbent Board, shall be, for purposes of this subsection
(B), considered as though they were members of the Incumbent Board;
or
(C) a sale of all or
substantially all the assets of the Bank or Company, or a plan of
reorganization, merger, consolidation, or similar transaction
occurs in which the security holders of the Bank or Company
immediately prior to the consummation of the transaction do not own
at least 50.1% of the securities of the surviving entity to be
outstanding upon consummation of the transaction; or
(D) a proxy statement is
issued soliciting proxies from stockholders of the Bank or Company
by someone other than the current management of the Bank or
Company, seeking stockholder approval of a plan of reorganization,
merger or consolidation of the Bank or Company, or similar
transaction with one or more corporations as a result of which the
outstanding shares of the class of securities then subject to the
plan are to be exchanged for or converted into cash or property or
securities not issued by the Bank or Company; or
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(E) a tender offer is made
for 25% or more of the voting securities of the Bank or Company and
stockholders owning beneficially or of record 25% or more of the
outstanding securities of the Bank or Company have tendered or
offered to sell their shares pursuant to such tender offer and such
tendered shares have been accepted by the tender
offeror.
(c) Even if a Change in
Control shall occur, Executive shall not have the right to receive
termination benefits pursuant to Section 3 upon termination of
employment for “Cause.” Termination for
“Cause” shall mean termination because of
Executive’s personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit,
material breach of the Bank’s Code of Ethics, material
viol
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