CENTER BANCORP,
INC.
2009 EQUITY INCENTIVE
PLAN
1.
Purposes of the Plan . The purposes of this
Center Bancorp, Inc. 2009 Equity Incentive Plan (the “
Plan ”) are: to attract and retain the best available
personnel for positions of substantial responsibility, to provide
additional incentives to Employees and Consultants, and to promote
the success of the Company and any Parent or
Subsidiary. Options granted under the Plan may be
Incentive Stock Options or Nonstatutory Stock Options, as
determined by the Administrator at the time of
grant. Stock Awards and Unrestricted Shares may also be
granted under the Plan.
2.
Definitions . As used herein, the following
definitions shall apply:
“ Administrator ” means
a Committee which has been delegated the responsibility of
administering the Plan in accordance with Section 4 of the Plan or,
if there is no such Committee, the Board.
“ Applicable Laws ”
means the requirements relating to the administration of equity
compensation plans under the applicable corporate and securities
laws of any of the states in the United States, U.S. federal
securities laws, the Code, any stock exchange or quotation system
on which the Common Stock is listed or quoted and the applicable
laws of any foreign country or jurisdiction where Awards are, or
will be, granted under the Plan.
“ Award ” means an
Option, a Stock Award or the grant of Unrestricted
Shares.
“ Board ” means the
Board of Directors of the Company.
“ Cause ”, with respect to
any Service Provider, means, unless otherwise specifically defined
in an Option Agreement or Stock Award Agreement, such Service
Provider’s (i) conviction of, or plea of nolo contendere
to, a felony or crime involving moral turpitude; (ii) fraud
on, or misappropriation of any funds or property of, the Company or
any Parent or Subsidiary; (iii) personal dishonesty, willful
misconduct, willful violation of any law, rule or regulation (other
than minor traffic violations or similar offenses) or breach of
fiduciary duty which involves personal profit; (iv) willful
misconduct in connection with the Service Provider’s duties;
(v) chronic use of alcohol, drugs or other similar substances
which affects the Service Provider’s performance of services;
or (vi) material breach of any provision of any employment,
non-disclosure, non-competition, non-solicitation or other similar
agreement executed by the Service Provider for the benefit of the
Company or any Parent or Subsidiary, all as reasonably determined
by the Committee, which determination will be
conclusive. Notwithstanding the foregoing, if a Service
Provider and the Company (or a Parent or Subsidiary) have entered
into an employment agreement, consulting agreement or other similar
agreement that specifically defines “cause,” then with
respect to such Service Provider, “Cause” shall have
the meaning defined in that employment agreement, consulting
agreement or other agreement
“ Change in Control ”
means:
(a) the
consummation of any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or
pursuant to which shares of Common Stock would be converted into
cash, securities or other property, other than a merger of the
Company in which the holders of the shares of the Company’s
Common Stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving
corporation immediately after the merger; or
(b) the
consummation of any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, other than to a
subsidiary or affiliate; or
(c) an
approval by the shareholders of the Company of any plan or proposal
for the liquidation or dissolution of the Company; or
(d) any
action pursuant to which any person (as such term is defined in
Section 13(d) of the Exchange Act), corporation or other entity
(other than any benefit plan sponsored by the Company or any of its
Subsidiaries) shall become the “beneficial owner” (as
such term is defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of shares of capital stock entitled to vote
generally for the election of directors of the Company (“
Voting Securities ”) representing fifty percent or
more of the combined voting power of the Company’s then
outstanding Voting Securities (calculated as provided in Rule
13d-3(d) in the case of rights to acquire any such securities),
unless, prior to such person so becoming such beneficial owner, the
Board shall determine that such person so becoming such beneficial
owner shall not constitute a Change in Control; or
(e) the
individuals (A) who, as of the date on which this Plan is first
adopted by the Board, constitute the Board (the “ Original
Directors ”) and (B) who thereafter are elected to the
Board and whose election, or nomination for election, to the Board
was approved by a vote of at least two thirds of the Original
Directors then still in office (such Directors being called “
Additional Original Directors ”) and (C) who
thereafter are elected to the Board and whose election or
nomination for election to the Board was approved by a vote of at
least two thirds of the Original Directors and Additional Original
Directors then still in office, cease for any reason to constitute
a majority of the members of the Board.
“ Code ” means the
Internal Revenue Code of 1986, as amended.
“ Committee ” means a
committee of Directors appointed by the Board in accordance with
Section 4 of the Plan.
“ Common Stock ” means
the common stock of the Company.
“ Company ” means
Center Bancorp, Inc., a New Jersey corporation.
“ Consultant ” means
any person, including an advisor, engaged by the Company or a
Parent or Subsidiary to render services to such entity, other than
an Employee or a Director.
“ Director ” means a
member of the Board.
“ Disability ” means
total and permanent disability as defined in Section 22(e)(3) of
the Code.
“ Employee ” means any
person, including officers and Directors, serving as an employee of
the Company or any Parent or Subsidiary. An individual
shall not cease to be an Employee in the case of (i) any leave of
absence approved by the Company or (ii) transfers between locations
of the Company or between the Company, its Parent, any Subsidiary
or any successor. For purposes of an Option initially
granted as an Incentive Stock Option, if a leave of absence of more
than three months precludes such Option from being treated as an
Incentive Stock Option under the Code, such Option thereafter shall
be treated as a Nonstatutory Stock Option for purposes of this
Plan. Neither service as a Director nor payment of a
director’s fee by the Company shall be sufficient to
constitute “employment” by the Company.
“ Exchange Act ” means
the Securities Exchange Act of 1934, as amended.
“ Fair Market Value ”
means, as of any date, the value of Common Stock determined as
follows:
(i) if
the Common Stock is listed on any established stock exchange or a
national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock
Market, the Fair Market Value of a Share of Common Stock shall be
the closing sales price of a Share of Common Stock as quoted on
such exchange or system for such date (or the most recent trading
day preceding such date if there were no trades on such date), as
reported in The Wall Street Journal or such other source as
the Committee deems reliable;
(ii) if
the Common Stock is regularly quoted by a recognized securities
dealer but is not listed in the manner contemplated by clause (i)
above, the Fair Market Value of a Share of Common Stock shall be
the mean between the high bid and low asked prices for the Common
Stock for such date (or the most recent trading day preceding such
date if there were no trades on such date), as reported in The
Wall Street Journal or such other source as the Committee deems
reliable; or
(iii)
if neither clause (i) above nor clause (ii) above applies, the Fair
Market Value shall be determined in good faith by the Administrator
based on the reasonable application of a reasonable valuation
method.
“ Incentive Stock Option
” means an Option intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
“ Nonstatutory Stock Option
” means an Option not intended to qualify as an Incentive
Stock Option.
“ Notice of Grant ”
means a written or electronic notice evidencing certain terms and
conditions of an individual Option grant, Stock Award grant or
grant of Unrestricted Shares. The Notice of Grant
applicable to Stock Options shall be part of the Option
Agreement.
“ Option ” means a
stock option granted pursuant to the Plan.
“ Option Agreement ”
means an agreement between the Company and an Optionee evidencing
the terms and conditions of an individual Option
grant. Each Option Agreement shall be subject to the
terms and conditions of the Plan.
“ Optioned Stock ”
means the Common Stock subject to an Option.
“ Optionee ” means the
holder of an outstanding Option granted under the Plan.
“ Parent ” means
a “parent corporation” of the Company (or, in the
context of Section 15(c) of the Plan, of a successor corporation),
whether now or hereafter existing, as defined in Section 424(e) of
the Code.
“ Participant ” shall
mean any person who holds an Option, Restricted Stock, a Stock
Award or Unrestricted Shares granted or issued pursuant to the
Plan.
“
Restricted Stock ” means Shares that are subject to
restrictions pursuant to Section 11 hereof.
“
Restricted Stock Unit ” means a right granted under
and subject to restrictions pursuant to Section 12
hereof.
“ Rule 16b-3 ” means Rule
16b-3 of the Exchange Act or any successor to such Rule 16b-3, as
such rule is in effect when discretion is being exercised with
respect to the Plan.
“ Section 16(b) ” means
Section 16(b) of the Exchange Act.
“ Service Provider ” means an
Employee or Consultant.
“ Share ” means a share of
the Common Stock, as adjusted in accordance with Section 15 of the
Plan.
“ Stock Award ” means an
Award of Shares pursuant to Section 11 of the Plan or an award of
Restricted Stock Units pursuant to Section 12 of the
Plan.
“ Stock Award Agreement ”
means an agreement, approved by the Administrator, providing the
terms and conditions of a Stock Award.
“ Stock Award Shares ” means
Shares subject to a Stock Award.
“ Stock Awardee ” means the
holder of an outstanding Stock Award granted under the
Plan
“ Subsidiary ” means a
“subsidiary corporation” of the Company (or, in the
context of Section 15(c) of the Plan, of a successor corporation),
whether now or hereafter existing, as defined in Section 424(f) of
the Code.
“ Unrestricted Shares ”
means a grant of Shares made on an unrestricted basis pursuant to
Section 14 of the Plan.
3.
Stock Subject to the Plan . Subject to the
provisions of Section 15 of the Plan, the maximum aggregate number
of Shares that may be issued under the Plan is 400,000
Shares. The Shares may be authorized but unissued, or
reacquired, shares of Common Stock. If an Option expires
or becomes unexercisable without having been exercised in full or
is canceled or terminated, or if any Shares of Restricted Stock or
Shares underlying a Stock Award are forfeited, the Shares that were
subject thereto shall be added back to the Shares available for
issuance under the Plan.
4.
Administration of the Plan .
(i)
Multiple Administrative Bodies . Different
Committees with respect to different groups of Service Providers
may administer the Plan.
(ii)
Section 162(m) . To the extent that the
Administrator determines it to be desirable to qualify Awards
granted hereunder as “performance-based compensation”
within the meaning of Section 162(m) of the Code, the Plan shall be
administered by a Committee of two or more “outside
directors” within the meaning of Section 162(m) of the Code
and the regulations promulgated thereunder.
(iii)
Rule 16b-3 . If the Company is subject to Section
16(b), the transactions contemplated hereunder shall (from the date
that the Company is first subject to Section 16(b)), be structured
to satisfy the requirements for exemption under Rule
16b-3.
(iv)
Other Administration . Other than as provided
above, the Plan shall be administered by (A) the Board or (B) a
Committee, which committee shall be constituted to satisfy
Applicable Laws.
(b)
Powers of the Administrator . Subject to the
provisions of the Plan, and in the case of a Committee, subject to
the specific duties delegated by the Board to such Committee, the
Administrator shall have the authority, in its
discretion:
(i)
to determine
the Fair Market Value;
(ii)
to select the Service Providers to whom Options, Stock Awards and
Unrestricted Shares may be granted hereunder;
(iii) to
determine the number of shares of Common Stock to be covered by
each Award granted hereunder;
(iv) to
approve forms of agreement for use under the Plan;
(v)
to determine the terms and conditions, not inconsistent with the
terms of the Plan or of any Award granted
hereunder. Such terms and conditions include, but are
not limited to, the exercise price, the time or times when Options
may be exercised (which may be based on performance criteria), any
vesting, acceleration or waiver of forfeiture provisions, and any
restriction or limitation regarding any Option or Stock Award, or
the Shares of Common Stock relating thereto, based in each case on
such factors as the Administrator, in its sole discretion, shall
determine;
(vi) to
construe and interpret the terms of the Plan, Awards granted
pursuant to the Plan and agreements entered into pursuant to the
Plan;
(vii) to
prescribe, amend and rescind rules and regulations relating to the
Plan, including rules and regulations relating to sub-plans
established for the purpose of qualifying for preferred tax
treatment under foreign tax laws;
(viii) to
modify or amend each Award (subject to Section 19(c) of the Plan),
including the discretionary authority to extend the
post-termination exercisability period of Options longer than is
otherwise provided for in the Plan;
(ix) to
allow grantees to satisfy withholding tax obligations by having the
Company withhold from the Shares to be issued upon exercise of an
Option that number of Shares having a Fair Market Value equal to
the amount required to be withheld, provided that withholding is
calculated at the minimum statutory withholding
level. The Fair Market Value of the Shares to be
withheld shall be determined on the date that the amount of tax to
be withheld is to be determined. All determinations to
have Shares withheld for this purpose shall be made by the
Administrator in its discretion;
(x)
to reduce the exercise price of any Option to the
then current Fair Market Value if the Fair Market Value of the
Common Stock covered by such Option shall have declined by 50% from
the date of grant to the date that is one year after the date of
grant;
(xi) to
authorize any person to execute on behalf of the Company any
agreement entered into pursuant to the Plan and any instrument
required to effect the grant of an Award previously granted by the
Administrator; and
(xii) to
make all other determinations deemed necessary or advisable for
administering the Plan.
(c)
Effect of Administrator’s Decision . The
Administrator’s decisions, determinations and interpretations
shall be final and binding on all holders of Awards and Restricted
Stock. None of the Board, the Committee or the
Administrator, nor any member or delegate thereof, shall be liable
for any act, omission, interpretation, construction or
determination made in good faith in connection with the Plan, and
each of the foregoing shall be entitled in all cases to
indemnification and reimbursement by the Company in respect of any
claim, loss, damage or expense (including without limitation
reasonable attorneys’ fees) arising or resulting therefrom to
the fullest extent permitted by law and/or under any
directors’ and officers’ liability insurance coverage
which may be in effect from time to time.
5.
Eligibility . Nonstatutory Stock Options, Stock
Awards and Unrestricted Shares may be granted to Service
Providers. Incentive Stock Options may be granted only
to Employees. Notwithstanding anything contained herein
to the contrary, an Award may be granted to a person who is not
then a Service Provider; provided, however, that the grant of such
Award shall be conditioned upon such person becoming a Service
Provider at or prior to the time of the execution of the agreement
evidencing such Award.
6 .
Limitations .
(a) Each
Option shall be designated in the Option Agreement as either an
Incentive Stock Option or a Nonstatutory Stock
Option. However, notwithstanding such designation, if a
single Employee becomes eligible in any given year to exercise
Incentive Stock Options for Shares having a Fair Market Value in
excess of $100,000, those Options representing the excess shall be
treated as Nonstatutory Stock Options. In the previous
sentence, “Incentive Stock Options” include Incentive
Stock Options granted under any plan of the Company or any Parent
or any Subsidiary. For the purpose of deciding which
Options apply to Shares that “exceed” the $100,000
limit, Incentive Stock Options shall
