Exhibit 10.2 (b)
AMENDMENT TO EMPLOYMENT CONTINUITY AGREEMENT
THIS AMENDMENT to the Employment Continuity Agreement, dated ____________,
2000 (the "Agreement"), between _____________ (the "Executive') and THE FIRST
NATIONAL BANK OF BAR HARBOR (the "Bank") is made and entered into by and
between the Executive and FIRST NATIONAL BANK OF DAMARISCOTTA ("FNBD") pursuant
to the terms of that certain Merger Agreement, dated August 25, 2004 (the
"Merger Agreement"), between FNB Bankshares, owner of 100% of the outstanding
capital stock of the Bank ("FNB") and First National Lincoln Corporation, owner
of 100% of the outstanding capital stock of FNBD ("FNLC") and in furtherance of
the Executive's employment by FNBD. All capitalized terms not otherwise
defined herein shall have the meaning provided therefor in the Merger Agreement.
WHEREAS, Section 6.12(b) of the Merger Agreement provides for the
assumption by FNBD of the obligations of the Bank under the Agreement following
the merger of FNB with and into FNLC, subject to certain amendments; and
WHEREAS, the Executive and FNBD now wish to execute a written amendment to
the Agreement, pursuant to the terms of the Merger Agreement and in furtherance
of the Executive's employment with FNBD.
NOW THEREFORE, the parties hereby amend the Agreement as follows,
effective as of the Effective Time.
1. Assignment of Rights and Assumption of Obligations. Pursuant to
Section 6.12(b) of the Merger Agreement and Section VII of the Agreement, FNBD
hereby assumes all of the obligations of the Bank under the Agreement and the
Executive acknowledges that FNBD has succeeded to all of the rights of the Bank
under the Agreement as successor to the Bank. Beginning at the Effective Time,
all references to the Bank contained in the Agreement shall be deemed to be
references to FNBD and all references to FNB shall be deemed references to FNLC.
2. Base Amount. Pursuant to Section 6.12(b) of the Merger Agreement,
Sections II (a) and II(c) of the Agreement are hereby restated in their
entirety to read as follows:
"(a) The Bank agrees that if there is a Change in Control of the Bank
and the Executive is terminated or elects to resign from his position within 24
months following a Change in Control of the Bank, the Executive shall receive a
severance payment in a single lump sum equal to 299% of his "base amount".
Such amount shall be payable within ten days after such termination or
resignation following a Change in Control of the Bank. For purposes of
determining the amount payable to the Executive hereunder, the term "base
amount" shall mean the base salary in effect and payable to the Executive as
reflected in the payroll records of the Bank on December 31, 2004."
"(c) Notwithstanding the foregoing, in no event shall the aggregate
amount payable to the Executive under this Agreement exceed 299% of the
Executive's statutory base amount, within the meaning of Section 280G of the
Internal Revenue Code (the "280G Base Amount"). The Bank shall reduce the
amount payable to the Executive as and to the extent necessary to ensure that
the aggregate amount payable under this Agreement shall not exceed 299% of the
Executive's 280G Base Amount."
3. Non-Competition. The second sentence of Section IX of the Agreement is
hereby restated in its entirety to read as follows:
"In the event the Executive resigns, or his employment with the Bank is
terminated, and he receives the severance payment under this Agreement, the
Executive agrees that, for a period of one (1) year from the date of such
resignation or termination, he shall not accept employment with any financial
institution which has an office or branch in Xxxx County, Lincoln County,
Xxxxxxx County, or Washington County, Maine.
4. Effective Date of Amendment; Failure to Close. The parties expressly
agree that this Amendment has been executed in anticipation of the closing of
the Merger and the commencement of the Executive's employment by FNBD beginning
at the Effective Time. This Amendment shall be effective as of the Effective
Time, provided that this Amendment shall terminate and be of no further effect
upon (i) termination of the Merger Agreement in accordance with its terms
without the Merger being effected or (ii) termination of Executive's employment
with Bank prior to the Effective Time.
5. No Effect on Other Terms. This Amendment is intended to modify only
those provisions of the Agreement as are expressly modified hereby and shall
have no effect on any other terms or conditions under the Agreement, which
terms and conditions are hereby expressly affirmed by the parties; provided,
however, that the Bank and Executive agree to amend this Agreement, if
necessary or desireable, to avoid any adverse effect on the Executive due to
the adoption of the American Jobs Creation Act of 2004 (HR 4520) or any
regulations promulgated by the Internal Revenue Service thereunder. This
Amendment shall supersede the provisions of Section 6.12(b) of the Merger
Agreement as and to the extent they relate to the amendment of the Agreement.
IN WITNESS WHEREOF, the Executive has signed this Amendment and FNBD has
caused this Amendment to be signed by its duly authorized signatory on this __
day of December, 2004.
FIRST NATIONAL BANK OF DAMARISCOTTA
__________________________________________
By:
Its:
EXECUTIVE
___________________________________________
