ex10_2.htm


  
    Exhibit
10.2

     

    
      FIRST
AMENDMENT TO

      CHANGE IN CONTROL AND
ASSUMPTION AGREEMENT

      


      


      THIS FIRST AMENDMENT (the
“Amendment”) to that certain Change in Control and Assumption Agreement dated
June 1, 2007 (the “Change in Control Agreement”) is made on and as of this
31st
day of October, 2008, by and between Community Partners Bancorp (“CPB”), a
corporation organized under the laws of the state of New Jersey which serves as
a bank holding company, with its principal office at 1250 Highway 35 South,
Middletown, New Jersey 07748; Two River Community Bank (“TRCB”), a banking
corporation organized under the laws of the state of New Jersey, with its
principal office at 1250 Highway 35 South, Middletown, New Jersey 07748; and
Barry B. Davall (the “Executive”), whose business address is 1250 Highway 35
South, Middletown, New Jersey 07748.

      


      BACKGROUND

      


      WHEREAS, CPB, TRCB and the
Executive wish to enter into this Amendment to the Change in Control Agreement
so as to (i) fully and effectively exempt the Change in Control Agreement from
those provisions of Section 409A of the Internal Revenue Code of 1986 and the
final Treasury Regulations for Section 409A which would or could, in the absence
of such Amendment, otherwise be applicable to the Change in Control Agreement,
and (ii) otherwise amend the Change in Control Agreement as agreed upon by CPB,
TRCB and the Executive.

      


      NOW, THEREFORE, in
consideration of the mutual promises set forth in this Amendment, the
sufficiency of which are hereby acknowledged, CPB, TRCB and the Executive agree
that the Change in Control Agreement is amended as follows:

      


      1.  Section
1d shall be amended by deleting the word “voluntary” where such term first
appears, and adding the following language immediately after the word
“consent”:

      


      “..., but
only if, and to the extent that, such action or failure to act by Employer
constitutes a “material negative change”, within the meaning of Treas. Reg. Sec.
1.409A-1(n)(2)(i), to the Executive in his or her relationship with the Employer
so as to result in the termination by the Executive of his or her employment
relationship with Employer for “Good Reason” being an “involuntary separation
from service” within the meaning of Treas. Reg. Sec. 1.409A-1(n)...”

      


      2.  Section
9 shall be amended by deleting the phrase “...upon four weeks’ prior written
notice to the Employer specifying the Good Reason.” where such phrase appears in
the first sentence of the first paragraph, and inserting in its stead “..., but
only in full accordance with the terms of the third full paragraph of this
Section 9.”

      


      3.  Section
9 shall be amended by adding the following language immediately after the
phrase  “...within twenty (20) business days of the termination of
employment...”  where such phrase appears in the second sentence of the
first paragraph:

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

      


      “...(it
being the intention of Employer and the Executive that the payment of the Lump
Sum Payment constitute a short term deferral within the meaning of Treas. Reg.
Sec. 1.409A-1(b)(4))...”

      


      4.  Section
9 shall be amended by deleting the third sentence of the first
paragraph.

      


      5.  Section
9 shall be amended by adding the following language after the second full
paragraph of Section 9:

      


      The
Executive may not resign with Good Reason, and shall not be considered to have
done so for any purpose of this Agreement, unless (i) the Executive, within
sixty (60) days of the initial existence of the act or failure to act by
Employer which Executive believes to constitute “Good Reason” within the meaning
of this Agreement, provides Employer with written notice which describes, in
particular detail, the act or failure to act which Executive believes to
constitute “Good Reason” and identifies the particular clause of Section 1d of
this Agreement which Executive contends is applicable to such act or failure to
act; (ii) Employer, within thirty (30) days of its receipt of such notice, fails
or refuses to rescind such act or remedy such failure to act so as to eliminate
“Good Reason” for the termination by the Executive of his or her employment
relationship with Employer, and (iii) Executive actually resigns from his or her
employment with Employer on or before that date which is exactly six (6)
calendar months after the initial existence of the act or failure to act by
Employer which constitutes “Good Reason” within the meaning of this
Agreement.  If the requirements of the preceding sentence are not
fully satisfied on a timely basis, then the resignation by Executive of his or
her employment with Employer shall not be deemed to have been for “Good Reason”;
he or she shall not be entitled to any of the benefits to which he or she would
have been entitled if he or she had resigned his or her employment with the
Employer for “Good Reason”; and, in particular, the Employer shall not be
required to pay any amount which would otherwise have been due to the Executive
under this Section 9 of this Agreement had the Executive resigned with “Good
Reason”.

      


      The
Employer and the Executive acknowledge that any termination of the Executive’s
employment without Cause or resignation for Good Reason under this Section 9 of
this Agreement is intended to qualify as a “Separation from Service” under
Section 409A of the Internal Revenue Code and Treasury Regulation Section
1.409A-1(h).  The Executive and the Employer agree that the Executive
will not, at any time subsequent to a termination without Cause or resignation
for Good Reason under this Section 9 of this Agreement, as an employee or
independent contractor,  provide services to the Employer or any
affiliate of the Employer at an annual rate which is more than twenty percent
(20%) of the services rendered, on average, during the thirty six (36) full
calendar months immediately preceding such termination without Cause or
resignation for Good Reason under this Section 9 of this Agreement (or the full
period for which the Executive provided services to the Employer (whether as an
employee or as an independent contractor) if the Executive has, at the time of
termination without Cause or resignation for Good Reason under this Section 9 of
this Agreement, been providing services for a period of less than thirty six
(36) months).

      


      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

      


      6.  Section
13 shall be amended by deleting the term “Section 280G Agreement” wherever it
appears (including as the caption), and inserting in its stead the term “Excise
Tax Reimbursement Agreement”.

      


      7.  The
section captioned “Miscellaneous”
shall be numbered as 18.

      


      8.  The
amendments set forth in this First Amendment to Change in Control and Assumption
Agreement shall be deemed to have been effective as of June 1, 2007, the date of
the Change in Control Agreement, as though such amendatory language had been
fully set forth therein.

      


      IN WITNESS WHEREOF, CPB and
TRCB have caused this Agreement to be signed by their respective duly authorized
representatives pursuant to the authority of their Boards of Directors, and the
Executive has personally executed this Agreement, all as of the day and year
first written above.

      


      WITNESS:

       

       

       

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  
                                                                    
                                                                      
                                                                        	/s/
      Jean Nelson-Crosby 	 	/s/Barry
      B. Davall 	 
	 	
                                                                                 

                                                                              	Barry
      B. Davall, individually	 
	 	 	 	 	 
	 	 	 	 	 
	ATTEST:   	 	COMMUNITY
      PARTNERS BANCORP	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	/s/Michael
      W. Kostelnik 	 	By:	/s/Charles
      T. Parton	 
	Michael
      W. Kostelnik,  Secretary 	 	 	Charles
      T. Parton, Chairman	 
	 	 	 	 	 
	 	 	 	 	 
	ATTEST:    	 	TWO
      RIVER COMMUNITY BANK	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	/s/Michael
      W. Kostelnik 	 	By:
      	/s/William
      D. Moss	 
	Michael
      W. Kostelnik, Secretary   	 	 	William
      D. Moss, President	 
	 	 	 	 	 


                                                                      

                                                                    

                                                                  

                                                                

                                                              

                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

      
 

       

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