Exhibit 10.28
CHANGE IN CONTROL
AGREEMENT
This CHANGE IN
CONTROL AGREEMENT (the " Agreement ") is made
on of this
21st day
of November, 2008, effective as of the 14 th of
July, 2008 by and among UNION CENTER NATIONAL BANK, a bank
chartered under the laws of Congress (the "Bank"), CENTER BANCORP
INC., a New Jersey corporation that owns all of the capital stock
of the Bank (the "Company") and RONALD M. SHAPIRO
("EMPLOYEE").
BACKGROUND:
WHEREAS, EMPLOYEE is currently employed as a
Senior Vice President and Chief Lending Officer of the Bank and as
a Vice President of the Company; and
WHEREAS, the Boards of Directors of the Bank and
the Company believe it is imperative that the Bank and the Company
be able to rely upon EMPLOYEE to continue in his position in the
event that the Bank or the Company receives any proposal from a
third person concerning a possible acquisition of the equity
securities or assets of the Bank or the Company, and that the Bank
and the Company be able to receive and rely upon EMPLOYEE's advice,
if they request it, as to the best interests of the Company, the
Bank and their respective shareholders, without concern that
EMPLOYEE might be distracted by the personal uncertainties and
risks created by such a proposal; and
WHEREAS, to achieve that goal, and to retain
EMPLOYEE's services prior to any such activity, the Bank, the
Company and EMPLOYEE have agreed to enter into this Agreement to
govern EMPLOYEE's termination benefits in the event of a Change in
Control Event (as defined below).
NOW, THEREFORE, in consideration of the
foregoing premises and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1.
Certain Definitions : As used in the Agreement, the
following terms shall have the respective meanings set forth
below:
(a) " Cause " means (i) EMPLOYEE's
conviction of, guilty plea to, or confession of guilt of, any crime
that constitutes a felony or criminal act involving moral
turpitude, (ii) EMPLOYEE's commission of a fraudulent, illegal,
disloyal or dishonest act in respect of the Bank or the Company,
(iii) termination of the Bank's business due to unprofitability,
insolvency, bankruptcy or directive by governmental regulators,
(iv) EMPLOYEE's willful misconduct or gross negligence that
reasonably could be expected to be materially injurious to the
business, operations, or reputation of the Bank and/or the Company,
(v) EMPLOYEE's violation of a material nature of the Bank's or the
Company's policies or procedures in effect from time to time;
provided, however, to the extent such violation is subject to cure,
such violation shall not constitute " Cause " unless
EMPLOYEE fails to cure such violation within 10 days after
written notice thereof, (vi) EMPLOYEE's material failure
to perform EMPLOYEE's duties as assigned to EMPLOYEE by the Bank
and/or the Company from time to time; provided, however, to the
extent such failure is subject to cure, such failure shall not
constitute "Cause" unless EMPLOYEE fails to cure such failure
within 10 days after written notice thereof, or (vii) EMPLOYEE's
death.
Termination for "Cause" shall not be construed
to include the takeover of the Bank or the Company, in either a
hostile or voluntary manner, by another person, firm or
corporation.
(b) "Change
in Control Event" means (i) the consummation of an acquisition by a
third party of a majority of the voting capital stock of the
Company or the Bank or substantially all of the assets of the
Company or the Bank or (ii) a change in the composition of the
Board of Directors of the Company (the "Board") such that the
Continuing Directors (as hereinafter defined) no longer constitute
a majority of the Board.
(c) "Continuing
Directors" shall mean (i) each current member of the Company's
Board of Directors and (ii) each person who is hereinafter first
nominated to such Board by unanimous vote of the persons who then
constitute Continuing Directors.
(d)
"Good Reason" means the resignation by EMPLOYEE within 180
days after the occurrence of a Change in Control Event.
(e) "Release"
means a general release agreement in a form acceptable to the
Company and the Bank, which Release shall include, among other
things, a general release of the Bank, the Company and related
parties from all liability.
(f) "Trigger
Event" shall mean, the occurrence during the Term (as defined
below) of either: (i) the termination of EMPLOYEE's employment by
the Bank and the Company (or their respective successors) upon, or
within 12 months following, a Change in Control Event, other than a
termination of EMPLOYEE's employment by the Bank and the Company
(or their respective successors) for Cause; or (ii) EMPLOYEE's
resignation for Good Reason, provided that EMPLOYEE delivers
written notice of EMPLOYEE's resignation to the Bank and the
Company (or their respective successors ) at least 30 days prior to
the effective date of such resignation.
2.
Term of Agreement . Except as otherwise provided in the next
sentence of this Section 2, the term of this Agreement shall be two
(2) years, effective as of July 14, 2008 and terminating July 14,
2010(the "Initial Term"). This Agreement shall not automatically
renew or be automatically extended beyond July 14,
2010. Notwithstanding the foregoing, if a "Change in
Control Event" occurs at any time prior to July 14,
2010, then the term of this Agreement shall
automatically be extended for a period of one (1) year from the
date of such Change in Control Event.
3.
Trigger Event Payments and Benefits.
(A) Upon
the occurrence of a Trigger Event (a) subject to EMPLOYEE's
execution, delivery and non-revocation of the Release, EMPLOYEE
shall be entitled to: (i) a lump sum payment equal to the product
of (x) three (3) and (y) the sum of (1) EMPLOYEE's annual base
salary as in effec
