Exhibit 10.8.1
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (this "Amendment") is made as of
this 5th day of March, 1998 by and among Xxxxxxx Xxxxx National Bancorp, Inc., a
Delaware corporation (the "Company"), The Xxxxx National Bank, a national
banking association (the "Bank") and Xxxxxxx Xxxxx Xxxx (the "Executive").
RECITALS
A. The Company, the Bank and the Executive entered into an Employment
Agreement dated as of February 20, 1996 and amended as of March 29, 1996 (the
"Original Agreement").
B. Events occurring after the failure to obtain stockholder approval of
the acquisition of Ballston Bancorp have increased the degree of uncertainty as
to future job security for the Executive.
C. The Board of Directors of the Company and of the Bank believes that
the interest of the Bank and the Company will best be served by helping to
relieve the Executive of uncertainty about her personal economic interest in the
event of any actual or proposed Change in Control, and thereby permit her to
devote her uninterrupted attention to the performance of her duties to the Bank
and the Company.
D. The Board of Directors of the Company and of the Bank and the
Executive desire to amend the Original Agreement as set forth herein.
NOW, THEREFORE, it is agreed that:
1. From and after the date of this Agreement, 1998, the Original
Agreement shall be amended as follows:
(a) Section 10(a)(i) shall be deleted in its entirety, and the
following new Section 10(a)(i) shall be substituted in lieu thereof:
Notwithstanding any provisions herein to the contrary, if the
Executive's employment under this Agreement is terminated by the Company or the
Bank, without the Executive's prior written consent and for a reason other than
Just Cause, or if the Executive is asked to resign, as a condition to, in
preparation for, or otherwise in connection with, or within 12 months after, a
Change in Control (as defined herein) of the Company or the Bank, the Company
and the Bank shall pay and/or grant the Executive the following compensation and
benefits: (i) a cash payment equal to two times her base salary at the time of
such resignation or termination; (ii) the fringe benefits provided for under
this Agreement or otherwise for a period of two years following such resignation
or termination; and (iii) the acceleration of any unvested stock options
previously granted to the Executive. At Executive's option, she may elect to
receive the cash payment provided for herein in installments. The cash payments
set forth in Section (i) and (ii) herein shall be paid in the following order of
priority: (A) from the funds in the separate grantor trust between the Company
and the
Trustee; (B) from the funds in the separate grantor trust between the Bank and
the Trustee; (C) from the Company; and (D) from the Bank.
(b) Section 10(b) shall be amended by adding at the end of such
section the following language:
or (vii) the Executive is requested by management or the Board of
Directors of the Bank or the Company to engage in conduct which she can
demonstrate is illegal.
(c) The following new Section 17 shall be added to the Original
Agreement:
17. Unfunded Arrangement. In conjunction with the execution of this
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Agreement, the Company and the Bank shall each establish a grantor trust, as
that term is defined in Section 671 of the Internal Revenue Code, in order to
fund its obligations to provide a cash payment equal to two times base salary
and fringe benefits for a two year period in the event the Executive's
employment is terminated in accordance with Paragraph 10 of the Original
Agreement. The grantor trust, which shall be irrevocable, will be governed by
the terms of separate trust agreements entered into between the Company and
NationsBank, and the Bank and NationsBank, the terms of which are incorporated
by reference. To the extent that the Executive acquires a right to receive
benefits under this Agreement, such right shall be no greater than the right of
any unsecured general creditor of the Company.
2. This Amendment is for the purposed of inducing the Executive to
continue her employment with the Company and the Bank and in consideration of
the services rendered by the Executive to the Bank from and after the date of
this Amendment, which consideration the Company and the Bank each hereby
acknowledge is fair and adequate.
3. From and after the Effective Date, the Original Agreement shall be
amended as set forth herein and all other terms of the Original Agreement shall
remain in full force and effect as amended hereby.
4. The parties hereto acknowledge that this Amendment and the related
grantor trusts were prepared pursuant to their mutual request by the law firm of
Ober, Kaler, Xxxxxx & Xxxxxxx, counsel solely to the Company and the Bank. The
Executive acknowledges that she is sophisticated in business matters (including,
but not limited to, employment agreements) and that she has had the opportunity
to seek independent legal advice. Each of the Executive and the Bank
specifically waives any actual or apparent conflict of interest of Xxxx Xxxxx,
Xxxxxx & Xxxxxxx in connection with the preparation and negotiation of this
Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
ATTEST: XXXXXXX XXXXX NATIONAL
BANCORP, INC.
___________________________ By:_______________________________
Xxxxx X. Xxxxx, Secretary Xxxxxxxx X. Xxxxx, Xx.
ATTEST: THE XXXXX NATIONAL BANK
__________ _________ By:______________________________
Xxxxx X. Xxxxx Xxxxxxxx X. Xxxxx
WITNESS:
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Xxxxxxx Xxxxx Xxxx
