Exhibit 10.4
FIRST AMENDMENT TO
EXECUTIVE SUPPLEMENTAL COMPENSATION AGREEMENT
BETWEEN
FIRST IPSWICH BANCORP
AND
XXXX ST. XXXX XXXXXXX
This First Amendment to the Executive Supplemental Compensation Agreement
by and between First Ipswich Bancorp, a Massachusetts corporation (hereinafter
referred to as the "Company") and Xxxx St. Xxxx Xxxxxxx of Ipswich,
Massachusetts (hereinafter referred to as the "Executive") dated March 31, 2004
(the "Agreement").
W I T N E S S E T H:
WHEREAS, the Company and Executive entered into the Agreement to provide
for certain supplemental retirement benefits, as defined therein; and
WHEREAS, subsequent to the date of the Agreement, Internal Revenue Code of
1986 (the "Code") Section 409A was enacted; and
WHEREAS, Code Section 409A imposes certain restrictions on the provisions
of non-qualified deferred compensation plans as to benefits that accrue and
become vested after December 31, 2004; and
WHEREAS, the Executive and the Company desire to amend the Agreement to
comply with Code Section 409A.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and the Executive agree as follows:
1. As to benefits that accrued and became vested through the period ended
December 31, 2004 (the "Vested Benefit as of December 31, 2004"), the Agreement
dated March 31, 2004 shall continue in full force and effect.
2. As to benefits accruing and becoming vested for periods beginning
January 1, 2005 and thereafter, the following amendments to the Agreement apply:
A. "Separation from Service" means that the Executive's service as
an employee (and, solely to the extent required to constitute a
"separation from service" for purposes of Code Section 409A, as an
independent contractor) to the Company or any member of a controlled
group, as determined under Code Section 414, to which the Company belongs,
has terminated for any reason, other than by reason of a leave of absence
approved by the Company.
B. Notwithstanding any provision of this Agreement to the contrary,
if the Company is publicly-traded on an established securities exchange or
otherwise, and if the Executive is considered a "key employee," as defined
in Section 416(i) of the Code at the time any benefit distribution under
this Agreement would commence, any such benefit distribution otherwise
payable to the Executive earlier than six (6) months after the date the
Executive's Separation from Services, shall be deferred and paid to the
Executive one day after the expiration of such six (6) month period.
C. Section 1 is deleted in its entirety and the following new
Section 1 is inserted:
"1. Retirement; Payments. Upon termination of Executive's employment
due to Retirement, as provided herein, the Company will pay to the
Executive as a single lump sum payment, the actuarial equivalent of
receiving the Net Retirement Benefit described below in equal monthly
installments each year for 15 years. "Retirement" shall mean the
termination of Executive's employment at any time after the date hereof
for any reason (other than the Company's termination of the Executive for
Cause, as defined herein), including termination because of death,
permanent disability, early retirement or after a Change in Control (as
defined herein)."
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D. The second sentence of Section 4(a) Offsets, involving the
calculation of the "Social Security Offset" is deleted in its entirety.
E. Section 5. Forms of Payment is deleted in its entirety.
3. For all purposes of this Agreement, Change in Control shall have the
meaning set forth in the Severance Agreement between Executive and Company dated
March 31, 2004, whether or not such agreement continues in effect.
4. The last sentence of Section 3 shall be amended to read as follows:
"The `Benefit Computation Amount' shall be the average of only the
Executive's annual contractual salary and bonus during the three (3)
consecutive calendar years in which his combined salary and bonus is the
highest, as determined by reference to the W-2 forms issued by the
Company." Any waived compensation shall not be used in the computation.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
under seal by its duly authorized officer, and the Executive has hereunto set
his hand and seal at Ipswich, Massachusetts, on this 21 day of July, 2006.
Witness: First Ipswich Bancorp
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
President and CEO
Witness:
/s/ Xxxxx X. Xxxxx /s/ Xxxx St. Xxxx Xxxxxxx
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Xxxx St. Xxxx Xxxxxxx, Executive
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