EXHIBIT 10.2
CHANGE IN CONTROL, CONFIDENTIALITY
AND NON-COMPETE AGREEMENT
This Agreement is made as
of November 13, 2007 (the “Effective Date”),
between Greater Community Bank (the “Bank”), a
New Jersey commercial banking corporation, Greater Community
Bancorp (“GCB”), a New Jersey business
corporation (hereinafter collectively referred to as
“the Company”) and Stephen J. Mauger (the
“Executive”).
WHEREAS ,
it is anticipated the Executive will be a valued employee of
the Company; and
WHEREAS ,
the Company desires to enter into this Agreement with the
Executive to provide the Executive with contractual
assurances to induce the Executive to remain as an employee
of the Company notwithstanding the possibility, threat or
occurrence of a Change in Control (as defined below) of the
Company, provided that the Executive remains in the position
of Chief Financial Officer at the time of a Change in
Control;
WHEREAS ,
the Company desires to enter into this Agreement with the
Executive regarding obligations of confidentiality and
competition during and following employment;
NOW,
THEREFORE , in consideration of the mutual covenants
and agreements contained herein and Company’s
employment of Executive as an at-will employee, the Executive
and the Company agree as follows:
1.
Duties . The Company hereby employs
Executive, on an at-will basis, as Chief Financial Officer
with all powers and authority as are customary to this
position, and Executive hereby accepts employment with the
Company. Executive shall have such executive
responsibilities as is customary with this position and as
the Company's Board of Directors shall from time to time
assign to him. Executive agrees to devote his full
time (excluding annual vacation time), skill, knowledge, and
attention to the business of the Company and the performance
of his duties under this Agreement.
2.
Change-In-Control.
a.
Change-In-Control defined . As used in this
Agreement, a “Change in Control”
means:
(1) the
acquisition by any person (other than GCB) of ownership or
power to vote more than thirty three and one third percent
(33⅓%) of GCB's or the Bank's voting
stock;
(2) the
acquisition by any person (other than GCB) of the control of
the election of a majority of GCB's or the Bank's
directors;
(3) the
exercise of a controlling influence over the management or
policies of GCB or the Bank by any person (other than GCB) or
by persons acting as a group within the meaning of
§13(d) of the Securities Exchange Act of 1934;
or
(4) during
any period of two consecutive years, individuals who at the
beginning of such two (2) year period constitute the Board of
Directors of GCB (the “Company Board”) (the
“Continuing Directors”) cease for any reason to
constitute at least two-thirds (⅔) thereof, provided
that any individual whose election or nomination for election
as a member of the Company Board was approved by a vote of at
least two-thirds (⅔) of the Continuing Directors then
in office shall be considered a Continuing
Director.
It
is the understanding of the parties that the merger or
consolidation of the Bank with one or more banking
subsidiaries of GCB shall not be considered a “Change in
Control” for purposes of this Agreement.
b.
“Person” defined . As used in
this Agreement, the term “person” means an
individual (other than the Executive), corporation,
partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization
or any other form of entity not specifically listed
herein.
c.
“Just Cause” . As used in this
Agreement, “Just Cause” shall exist when there
has been a determination by GCB's or the Bank's Board of
Directors in its sole discretion that there shall have
occurred one or more of the following events with respect to
the Executive:
(1) dishonesty
arising from or relating to Executive’s
position;
(2) commission
of an act that causes or that probably will cause economic
damage to the Company or injury to their business reputation
arising from or relating to Executive’s
position;
(3) misconduct
arising from or relating to Executive’s
position;
(4) breach
of fiduciary duty;
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(5)
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failure
to perform stated duties;
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(6) violation
of any law, rule or regulation (other than traffic violations
or similar offenses) or final cease and desist order;
or
(7) breach
of any provision of this Agreement.
d.
Involuntary Termination After Change in Control
. Notwithstanding any provision herein to the
contrary, if, in connection with or within twelve (12) months
after any “Change in Control” of the Company, the
Executive’s employment under this Agreement is
terminated by the Company without the Executive’s prior
written consent and for a reason other than Just Cause, the
Executive shall be paid an amount equal to one (1) times his
base annual salary, less that amount of base salary,
excluding any bonuses, actually paid after the Change in
Control, and subject to ordinary tax withholdings, provided
Executive executes a waiver and release agreement regarding
employment related claims in a form satisfactory to the
Company; however, Executive will not receive this payment if
the Company was placed in conservatorship or receivership in
connection with such Change in Control and the Board of
Directors of the Company determines in good faith that the
Change in Control was directed by or otherwise required by
the FDIC. In no event, may the aggregate amount
payable hereunder equal or exceed the difference between (i)
the product of 2.99 times the Executive’s “base
amount” as defined in Section 280G(b)(3) of the Code
and regulations promulgated thereunder, and (ii) the sum of
any other parachute payments (as defined under Section
280G(b)(2) of the Code) that the Executive receives on
account of the change in control. Such amount
shall be paid in a lump sum, less applicable tax withholdings
within ten (10) days of the effective date of the waiver and
release agreement.
e.
Voluntary Termination After Change in Control
. Notwithstanding any other provision of this
Agreement to the contrary, the Executive may voluntarily
terminate his employment under this Agreement within twelve
(12) months following a Change in Control of GCB or the Bank
if “Good Reason” for such termination exists that
is not corrected within 30 days following written notice
thereof to the Company by the Executive, such notice to state
with specificity the basis upon which Good Reason
exists. In the event, Good Reason exists and it is
not corrected, the Executive shall thereupon be entitled to
receive the payment described in Paragraph 2(d) of this
Agreement once again provided that Executive executes waiver
and release agreement regarding employment related claims in a
form satisfactory to the Company; however, Executive will not
receive this payment if the Company was placed in
conservatorship or receivership in connection with such Change
in Control and the Board of Directors of the Company
determines in good faith that the Change in Control was
directed by or otherwise required by the FDIC. For
purposes of this Agreement, “Good Reason” shall
mean, unless done with the consent of the Executive, the
assignment of duties materially inconsistent with the
Executive’s position as the Chief Financial Officer; his
duties and responsibilities immediately prior to the Change in
Control; a material reduction in the Executive’s base
salary as in effect at the time of the Change in Control; the
Company’s requiring the Executive to be based anywhere
other than within thirty (30) miles of the Executive’s
office location at the time of the Change in Control, except
for required travel on the Company’s business to an
extent substantially consistent with the Executive’s
business travel obligations for his position.
f.
Tax Issues. In the event that the
severance benefits payable to the Executive under this
section or any other payments or benefits received or to be
received by the Executive from the Company (whether payable
pursuant to the terms of this Agreement, any other plan,
agreement or arrangement with the Company) or any corporation
(“Affiliate”) affiliated with the Company within
the meaning of Section 1504 of the Internal Revenue Code of
1986, as amended (the “Code”), in the advice of
tax counsel selected by the Company and reasonably acceptable
to the Executive, constitute “parachute payments”
within the meaning of Section 280G(b)(2) of the Code, such
severance benefits shall be reduced to an amount the present
value of which (when combined with the present value of any
other payments or benefits otherwise received or to be
received by the Executive from the Company (or an Affiliate)
that are deemed “parachute payments”) is equal to
$1 less than the total amount permitted under Section
280(b)(2) without triggering such tax, notwithstanding any
other provision to the contrary in this
Agreement. The severance benefits shall not be
reduced to the extent that (A) the Executive shall have
effectively waived his receipt or enjoyment of any such
payment or benefit which triggered the applicability of this
section, or (B) in the opinion of tax advisor, the severance
benefits (in their full amount or as partially reduced, as
the case may be) plus all other payments or benefits which
constitute “parachute payments” within the
meaning of Section 280G(b)(2) of the Code are reasonable
compensation for services actually rendered, within the
meaning of Section 280G(b)(4) of the Code, and such payments
are deductible by the Company. The Base Amount
shall include every type and form of compensation includable
in the Executive's gross income in respect of his employment
by the Company (or an Affiliate), except to the
exten
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