FIRST AMENDMENT TO THE EXECUTIVE EMPLOYMENT AGREEMENT BETWEEN BANK RHODE ISLAND, BANCORP RHODE ISLAND, INC. and ROBERT H. WISCHNOWSKY
Exhibit 10.13(b)
FIRST AMENDMENT
TO THE
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN BANK RHODE ISLAND, BANCORP RHODE ISLAND, INC.
and XXXXXX X. XXXXXXXXXXX
TO THE
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN BANK RHODE ISLAND, BANCORP RHODE ISLAND, INC.
and XXXXXX X. XXXXXXXXXXX
THIS First Amendment to the Executive Employment Agreement (this “First Amendment”),
dated as of December 20, 2010 is by and among Bank Rhode Island (the “Bank”), Bancorp Rhode
Island, Inc. (the “Company”) and Xxxxxx X. Xxxxxxxxxxx (“Executive”).
WHEREAS, the Bank, the Company and Executive are parties to that certain Executive Employment
Agreement dated as of December 1, 2008 (the “Employment Agreement”); and
WHEREAS, Executive is presently employed by the Bank and the Company pursuant to the terms of
the Employment Agreement, and
WHEREAS, the Bank, the Company and Executive now wish to amend the Employment Agreement to
comply with the provisions of Section 409A of the Internal Revenue Code in accordance with IRS
Notice 2010-6.
NOW, THEREFORE, effective as of January 1, 2009, in consideration of the mutual covenants
contained herein and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Section 1.8(b) of the Employment Agreement is amended to read as follows:
“(b) Disability. In the event of Executive’s ‘disability’ (as defined below)
during the term of his employment under this Agreement, the Bank shall continue to pay
Executive his base salary (reduced by any benefits he may be entitled to receive under any
state or federal disability insurance program, such as Rhode Island temporary disability
insurance or federal social security) for a period of six months from the date of
‘disability.’ For purposes of this Agreement, ‘disability’ shall mean that Executive (i) is
unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be expected to
last for a continuous period of not less than 12 months, or (ii) by reason of any medically
determinable physical or mental impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months, is receiving income
replacement benefits for a period of not less than three months under an accident and health
plan covering employees of the Bank or the Company.”
2. Section 2.1 of the Employment Agreement is amended by adding the following at
the end thereof:
“The Severance Benefit shall begin to be made within 30 days of Executive’s termination of
employment. If the 30-day period begins in one calendar year and ends in a second
calendar year, then the Severance Benefit shall begin to be made in the second calendar
year.”
3. Section 3.6 of the Employment Agreement is amended by adding the following at
the end thereof:
“If the Past Service Amount and Severance Payment are to be made within 30 days of the date
of termination of Executive’s employment, and the 30-day period begins in one calendar year
and ends in a second calendar year, then such amount shall be payable in the second calendar
year.”
4. The Employment Agreement is amended by adding the following Section 5
immediately after the end of Section 4.12:
“5. Section 409A.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time of
Executive’s separation from service within the meaning of Section 409A of the Code, the
Company determines that Executive is a ‘specified employee’ within the meaning of Section
409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that Executive
becomes entitled to under this Agreement on account of Executive’s separation from service
would be considered deferred compensation subject to the 20 percent additional tax imposed
pursuant to Section 409A(a) of the Code as a result of the application of Section
409A(a)(2)(B)(i) of the Code, such payment shall not be payable until and such benefit shall
not be provided until the date that is the earlier of (A) the later of (i) six months and
one day after Executive’s separation from service or (ii) such later date as required by IRS
Notice 2010-6, or (B) Executive’s death. If any such delayed payment is otherwise payable
on an installment basis, the first payment shall include a catch-up payment covering amounts
that would otherwise have been paid or provided during the six-month period but for the
application of this provision and adjusted by the Interest Factor (as defined herein), and
the balance of the installments shall be payable in accordance with their original schedule.
For purposes of this Agreement, the ‘Interest Factor’ shall mean the product of the
six-month Certificate of Deposit annualized yield rate as offered by the Bank for the date
on which a payment would have been made but for the delay required under Section 2.1 or
Section 3.6 of this Agreement multiplied by a fraction, the numerator of which is the number
of days by which such payment was delayed and the denominator of which is 365.
(b) All in-kind benefits provided and expenses eligible for reimbursement under this
Agreement shall be provided by the Company or the Bank or incurred by Executive during the
time periods set forth in this Agreement. All reimbursements shall be paid as soon as
administratively practicable, but in no event shall any reimbursement be paid after the last
day of the taxable year following the taxable year in which the expense was incurred. The
amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year
shall not affect the in-kind benefits to be provided or the expenses
eligible for reimbursement in any other taxable year. Such right to reimbursement or
in-kind benefits is not subject to liquidation or exchange for another benefit.
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(c) To the extent that any payment or benefit described in this Agreement constitutes
‘non-qualified deferred compensation’ under Section 409A of the Code, and to the extent that
such payment or benefit is payable upon Executive’s termination of employment, then such
payments or benefits shall be payable only upon Executive’s ‘separation from service.’ The
determination of whether and when a separation from service has occurred shall be made in
accordance with the presumptions set forth in Treasury Regulation Section 1.409A 1(h).
(d) In the event an amount is payable under Section 3.6 on account of a Change in
Control or a Takeover Transaction that is not considered a change in ownership or effective
change of the Company or the Bank or a change in the ownership of a substantial portion of
the assets of the Company or the Bank within the meaning of Section 409A of the Code and the
regulations promulgated thereunder and if such an amount is considered deferred compensation
subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as
a result of the application of Section 409A(a)(2)(B)(i) of the Code, then the form of
payment shall follow the same form of payment provided by Section 2.1.
(e) The parties intend that this Agreement will be administered in accordance with
Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous
as to its compliance with Section 409A of the Code, the provision shall be read in such a
manner so that all payments hereunder comply with Section 409A of the Code. The parties
agree that this Agreement may be amended, as reasonably requested by either party, and as
may be necessary to fully comply with Section 409A of the Code and all related rules and
regulations in order to preserve the payments and benefits provided hereunder without
additional cost to either party.
(f) The Company and the Bank make no representation or warranty and shall have no
liability to Executive or any other person if any provisions of this Agreement are
determined to constitute deferred compensation subject to Section 409A of the Code but do
not satisfy an exemption from, or the conditions of, such Section.”
5. Upon and after the date of this First Amendment, all references to the Employment
Agreement shall mean the Employment Agreement as amended by this First Amendment. Except as
expressly provided in this First Amendment, the execution and delivery of this First
Amendment does not and will not amend, modify, or supplement any provision of the Employment
Agreement, and, except as specifically provided in this First Amendment, the Employment
Agreement shall remain in full force and effect.
6. This First Amendment shall be construed according to and governed by the laws of the
State of Rhode Island without reference to its conflicts of laws rules.
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7. If any provision of this First Amendment is adjudicated to be invalid, illegal or
unenforceable, in whole or in part, it will be deemed omitted to that extent and all other
provisions of this First Amendment will remain in full force and effect.
8. This First Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors and assigns.
9. This First Amendment may be executed in one or more counterparts (which may include
signature pages delivered by facsimile or other electronic means), each of which when so
executed and delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have executed this First Amendment on the date set
forth above.
| BANCORP RHODE ISLAND, INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Title: President & CEO | ||||||
| BANK RHODE ISLAND | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Title: President & CEO | ||||||
| EXECUTIVE | ||||||
| /s/ Xxxxxx X. Xxxxxxxxxxx | ||||||
| Xxxxxx X. Xxxxxxxxxxx | ||||||
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