FIRST AMENDMENT TO CHANGE IN CONTROL AGREEMENT
Exhibit
10.4
FIRST
AMENDMENT TO
THIS FIRST AMENDMENT (the
“Amendment”) to that certain Change in Control Agreement dated December 14, 2004
(the “TRCB 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 0000 Xxxxxxx 00 Xxxxx, Xxxxxxxxxx,
Xxx Xxxxxx 00000; Two River Community Bank (“TRCB”), a banking corporation
organized under the laws of the state of New Jersey, with its principal office
at 0000 Xxxxxxx 00 Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000; and Xxxxx X. Xxxxxx (the
“Executive”), whose business address is 0000 Xxxxxxx 00 Xxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000.
BACKGROUND
WHEREAS, CPB, TRCB and the
Executive wish to enter into this Amendment to the TRCB Change in Control
Agreement so as to (i) fully and effectively exempt the TRCB 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 TRCB Change in
Control Agreement, and (ii) otherwise amend the TRCB 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 TRCB Change in Control Agreement is amended as
follows:
1. Xxxxxxx
0x xxxxx xx amended by deleting the phrase “…the date when the Executive would
attain age 65 or (iii)…”.
2. 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)…”
3.
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.”
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4. 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:
“...(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))…”
5. Section
9 shall be amended by deleting the third sentence of the first
paragraph.
6. 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).
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7. Section
10 shall be amended by adding the following sentence after the second
sentence:
“For all
purposes of this Agreement, the retirement by the Executive from his employment
with the Employer shall be deemed to be a resignation by the Executive without
Good Reason.”
8. Section
13 shall be deleted in its entirety, and the following provision shall be
inserted in its stead:
“13. Excise
Tax Reimbursement Agreement. CPB, TRCB and the Executive (i)
acknowledge that a separate agreement (the “Excise Tax Reimbursement Agreement”)
has been executed by CPB, TRCB and the Executive, the terms of which are
applicable to all compensation payments, including the compensation payments
made under this Agreement, which may be subject to Section 280G of the Internal
Revenue Code of 1986, and (ii) acknowledge their intentions to fully abide by
the terms of the Excise Tax Reimbursement Agreement.”
9. Section
14 shall be deleted in its entirety, and the following provision shall be
inserted in its stead:
“14. Release
as a Condition Precedent. As a condition
precedent to the actual payment by the Employer to the Executive of any amount
otherwise payable under Section 9 of this Agreement, the Executive must execute
and deliver a full release in favor of CPB, TRCB, their respective affiliates
and subsidiaries, and their respective officers and directors, which release
shall (i) be in form and content which is fully compliant with all of those
provisions of law to which the release pertains, and reasonably satisfactory to
counsel to the Employer; (ii) cover all actual or potential claims arising from
the Executive’s employment by the Employer and the termination of such
employment; and (iii) be prepared, reviewed and executed in a manner which is
consistent with all requirements of law, including the Age Discrimination in
Employment Act and the Older Workers Benefit Protection
Act.”
10. The
following Section 15 shall be inserted immediately after Section
14:
“15. Covenant
Not to Compete.
The Executive agrees that for a period of twelve (12) months from the date when
the Lump Sum Payment is made to the Executive under this Agreement, he shall not
become employed or retained by, directly or indirectly, any bank or other
regulated financial services institution with an office or operating branch in
any county in New Jersey within which TRCB or any affiliate of TRCB maintains an
office or branch. The Executive acknowledges that the terms and
conditions of this restrictive covenant are reasonable and necessary to protect
TRCB, its subsidiaries, and its affiliates, and that the Employer’s tender of
performance under this Agreement is fair, adequate and valid consideration in
exchange for his promises under this Paragraph 15 of this
Agreement. The Executive further acknowledges that his knowledge,
skills and abilities are sufficient to permit him to earn a satisfactory
livelihood without violating the provisions of this Paragraph
15.”
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11. The
following Section 16 shall be inserted immediately after Section
15:
16. Severance
Compensation and Benefits not in Derogation of Other Benefits. Subject
only to those particular terms of this Agreement to the contrary, the payment or
obligation to pay any monies, or the granting of any benefits, rights or
privileges to the Executive as provided in this Agreement shall not be in lieu
or derogation of the rights and privileges that the Executive now has or will
have under any plans or programs of the Employer.
12. Section
15 of the original TRCB Change in Control Agreement shall be renumbered as
Section 17.
13. The
amendments set forth in this First Amendment to Change in Control Agreement
shall be deemed to have been effective as of the date of the TRCB 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/ Xxxx Xxxxxx-Xxxxxx | /s/Xxxxx X. Xxxxxx | |||
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|
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Xxxxx X. Xxxxxx, individually | ||
| ATTEST: | COMMUNITY PARTNERS BANCORP | |||
| /s/Xxxxxxx X. Xxxxxxxxx | By: | /s/Xxxxxxx X. Xxxxxx | ||
| Xxxxxxx X. Xxxxxxxxx, Secretary | Xxxxxxx X. Xxxxxx, Chairman | |||
| ATTEST: | TWO RIVER COMMUNITY BANK | |||
| /s/Xxxxxxx X. Xxxxxxxxx | By: | /s/Xxxxxxx X. Xxxx | ||
| Xxxxxxx X. Xxxxxxxxx, Secretary | Xxxxxxx X. Xxxx, President | |||
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