Exhibit 10.16
FIRST AMENDMENT TO
AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT
First Amendment, dated as of November 12, 2008 (the "Amendment"), to the
Amended and Restated Change in Control Agreement, dated as of February 12, 2007
(as amended, the "Agreement"), by and among Enfield Federal Savings and Loan
Association (the "Association") and Xxxxx Xxxxxx (the "Executive"). Capitalized
terms which are not defined herein shall have the same meaning as set forth in
the Agreement.
W I T N E S S E T H:
WHEREAS, the parties desires to amend the Agreement to comply with the
final regulations issued in April 2007 by the Internal Revenue Service under
Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, pursuant to Section 8(a) of the Agreement, the parties to the
Agreement desire to amend the Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein set forth and such other consideration the sufficiency of which is hereby
acknowledged, the Association and the Executive hereby amends the Agreement as
follows:
Section 1. References to Enfield Federal Savings and Loan Association. All
references to Enfield Federal Savings and Loan Association in the Agreement
shall include any successor to the Association.
Section 2. Amendment to Section 2(a) of the Agreement. Section 2(a) of the
Agreement is hereby amended to add the following immediately after Section
2(a)(v):
"provided, however, that prior to any termination of employment for
Good Reason, the Executive must first provide written notice to the
Association (or its successor in interest) within ninety (90) days
following the initial existence of the condition, describing the
existence of such condition, and the Association shall thereafter
have the right to remedy the condition within thirty (30) days of
the date the Association received the written notice from the
Executive. If the Association remedies the condition within such
thirty (30) day cure period, then no Good Reason shall be deemed to
exist with respect to such condition. If the Association does not
remedy the condition within such thirty (30) day cure period, then
the Executive may deliver a Notice of Termination for Good Reason at
any time within sixty (60) days following the expiration of such
cure period."
Section 3. Amendment to Section 2(b) of the Agreement. Section 2(b) of the
Agreement is hereby amended to add the following immediately after Section
2(b)(iv):
"Notwithstanding anything in this Agreement to the contrary, a merger or
combination of the Association with or into Valley Bank or any other affiliate
of the Company or a similar
merger or combination of the Association into Valley
Bank or any of its affiliates, or any other type of corporate reorganization
involving the Association or any other affiliate of the Company shall not
constitute a Change in Control for purposes of this Agreement."
Section 4. New Section 2(d) of the Agreement. Section 2 of the
Agreement is hereby amended to add a new Section 2(d) to read in its entirety as
follows:
"(d) For purposes of this Agreement, any termination of Executive's
employment shall be construed to require a "Separation from Service"
in accordance with Code Section 409A and the regulations promulgated
thereunder, such that the Association and Executive reasonably
anticipate that the level of bona fide services Executive would
perform after termination of employment would permanently decrease
to a level that is less than 50% of the average level of bona fide
services performed (whether as an employee or an independent
contractor) over the immediately preceding thirty-six (36)-month
period."
Section 5. Amendment to Section 3(a)(ii) of the Agreement. Section
3(a)(ii) of the Agreement is hereby amended and a new Section 3(a)(iii) is added
to read in its entirety as follows:
"(ii) Continued life insurance and non-taxable health and dental
insurance coverage which Executive participated in as of the
date of the Change in Control (collectively, the "Employee
Benefit Plans") for a period of twenty-four (24) months
following Executive's termination of employment. Said coverage
shall be provided under the same terms and conditions in
effect on the date of Executive's termination of employment.
To the extent that benefits required under this Section
3(a)(ii) cannot be provided under the terms of any Association
health and welfare plans, the Association shall pay the
Executive the value of such benefits in a single cash lump
distribution within ten (10) calendar days following the
Executive's termination of employment; and
(iii) Notwithstanding the foregoing, in the event the Executive is a
Specified Employee (as defined herein), then, solely to the
extent required to avoid penalties under Code Section 409A,
the Executive's payments shall be delayed until the first day
of the seventh month following the Executive's Separation from
Service. A "Specified Employee" shall be interpreted to comply
with Code Section 409A and shall mean a key employee within
the meaning of Code Section 416(i) (without regard to
paragraph 5 thereof)."
Section 6. Amendment to Section 3(b) of the Agreement. Section 3(b) of the
Agreement is hereby amended to amend and restate the last sentence of Section
3(b) to read in its entirety as follows:
"If the payments and benefits under Section 3 are required to be reduced,
the cash severance shall be reduced first, followed by a reduction in the fringe
benefits."
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Section 7. Amendment to Section 13 of the Agreement. Section 13 of the
Agreement is hereby amended to add the following sentence immediately at the end
thereof:
"Such payment or reimbursement shall be made to Executive as soon as
practicable but not later than March 15 of the calendar year immediately
following the year in which such expenses were incurred by Executive."
Section 8. Effectiveness. This Amendment shall be deemed effective as of
the date first above written, as if executed on such date. Except as expressly
set forth herein, this Amendment shall not by implication or otherwise alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Agreement, all of which are ratified
and affirmed in all respects and shall continue in full force and effect and
shall be otherwise unaffected.
Section 9. Governing Law. This Amendment and the rights and obligations
hereunder shall be governed by and construed in accordance with the laws of the
State of Connecticut, except to the extent preempted by the laws of the United
States of America.
Section 10. Compliance with Section 409A. This Agreement shall be
interpreted and administered consistent with Section 409A of the Code.
IN WITNESS WHEREOF, the Association has duly executed this Amendment as of
the day and year first written above.
ENFIELD FEDERAL SAVINGS AND
LOAN ASSOCIATION
By: /s/ Xxxxx X. X'Xxxxxx
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Name: Xxxxx X. X'Xxxxxx
Title: President & CEO
EXECUTIVE
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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