SECOND AMENDMENT TO THE EXECUTIVE EMPLOYMENT AGREEMENT BETWEEN BANK RHODE ISLAND, BANCORP RHODE ISLAND, INC. and MERRILL W. SHERMAN
Exhibit 10.1 (c)
SECOND AMENDMENT
TO THE
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN BANK RHODE ISLAND, BANCORP RHODE ISLAND, INC.
and XXXXXXX X. XXXXXXX
TO THE
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN BANK RHODE ISLAND, BANCORP RHODE ISLAND, INC.
and XXXXXXX X. XXXXXXX
THIS Second Amendment to the Executive Employment Agreement (this “Second Amendment”),
dated as of December 20, 2010 is by and among Bank Rhode Island (the “Bank”), Bancorp Rhode
Island, Inc. (the “Company”) and Xxxxxxx X. Xxxxxxx (“Executive”).
WHEREAS, the Bank, the Company and Executive are parties to that certain Executive Employment
Agreement dated as of February 20, 2007 (the “Employment Agreement”); and
WHEREAS, the Bank, the Company and Executive are also parties to that certain First Amendment
to the Employment Agreement dated as of March 6, 2008 (the “First Amendment”); and
WHEREAS, Executive is presently employed by the Bank and Company pursuant to the terms of the
Employment Agreement and the First Amendment; and
WHEREAS, the Bank, the Company and Executive now wish to further amend the Employment
Agreement and the First Amendment 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 her employment under this Agreement, the Bank shall continue to pay
Executive her base salary (reduced by any benefits she 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 one year 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(a) of the Employment Agreement, as amended by the First Amendment,
is hereby amended by adding the following sentence at the end thereof:
“If the six-month delay rule does not apply and the Severance Benefit is payable during the
30-day period referenced in the first sentence of this Section 2.1(a) and the 30-day period
begins in one calendar year and ends in a second calendar year, then the Severance Benefit
shall be payable in the second calendar year.”
3. Section 2.1(c) of the Employment Agreement, as amended by the First Amendment,
is hereby amended by deleting said subsection in its entirety and substituting therefor
the following:
“(c) The Bank shall continue to provide Executive with the same automobile then being
used by Executive in accordance with the provisions of Section l.4(b) of this Agreement for
the Severance Period (at the expense of the Bank) and, at any time during or within thirty
(30) days of the expiration of the Severance Period, Executive shall have the right and
option, on written notice to the Bank, to purchase such automobile for a purchase price
equal to 90 percent of the wholesale value as established by the National Automobile Dealers
Association Official Used Car Guide published in the year of such notice (the
“Automobile Benefit”); provided, however, that notwithstanding anything to the
contrary in this Agreement, if Executive is determined by the Company to be a ‘specified
employee’ within the meaning of Code Section 409A(a)(2)(B)(i) at the time of her separation
from service with the Company or the Bank and if the provision of Automobile Benefit to
Executive without delay would expose Executive to the 20 percent additional tax imposed by
Code Section 409A(a), then no Automobile Benefit shall be provided to Executive until the
later of (A) the first business day that is six (6) months and one day following the date of
Executive’s ‘separation from service’ (as such term is defined by Code Section 409A and the
regulations promulgated thereunder), or (B) such later date as required by IRS Notice
2010-6. On such date, the Bank shall pay Executive an amount equal to the value of the
Automobile Benefit forfeited by reason of such delay (the “Delayed Automobile
Benefit”) and shall provide the Automobile Benefit then remaining. In the event of any
delay in the payment date as set forth in the preceding sentence, the Bank will increase the
payment to reflect the deferred payment date by adding thereto an amount equal to the
product of the Delayed Automobile Benefit multiplied by the Interest Factor.”
4. Section 3.6(a) of the Employment Agreement, as amended by the First Amendment,
is hereby amended by adding the following at the end thereof:
“If the six-month delay rule does not apply and the Past Service Amount and the Severance
Payment are payable during the 30-day period referenced in the first sentence of this
Section 3.6(a) and the 30-day period begins in one calendar year and ends in a second
calendar year, then the Past Service Amount and the Severance Payment shall be payable in
the second calendar year.”
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5. Section 3.6(c) of the Employment Agreement, as amended by the First Amendment,
is hereby amended by deleting said subsection in its entirety and substituting therefor
the following:
“(c) During the Severance Period (which, for purposes of Section 3 shall be deemed to
commence on the date of a Terminating Event), the Bank shall continue to provide Executive
with the same automobile then being used by Executive in accordance with the provisions of
Section l.4(b) of this Agreement and, at any time during or within thirty (30) days of the
expiration of the Severance Period, Executive shall have the right and option, on written
notice to the Bank, to purchase such automobile for a purchase price equal to 90 percent of
the wholesale value as established by the National Automobile Dealers Association Official
Used Car Guide published in the year of such notice (the “Automobile Benefit”);
provided, however, that notwithstanding anything to the contrary in this Agreement, if
Executive is determined by the Company to be a ‘specified employee’ within the meaning of
Code Section 409A(a)(2)(B)(i) at the time of her separation from service with the Company or
the Bank and if the provision of Automobile Benefit to Executive without delay would expose
Executive to the 20 percent additional tax imposed by Code Section 409A(a), then no
Automobile Benefit shall be provided to Executive until the later of (A) the first business
day that is six (6) months and one day following the date of Executive’s ‘separation from
service’ (as such term is defined by Code Section 409A and the regulations promulgated
thereunder), or (B) such later date as required by IRS Notice 2010-6. On such date, the
Bank shall pay Executive an amount equal to the value of the Automobile Benefit forfeited by
reason of such delay (the “Delayed Automobile Benefit”) and shall provide the
Automobile Benefit then remaining. In the event of any delay in the payment date as set
forth in the preceding sentence, the Bank will increase the payment to reflect the deferred
payment date by adding thereto an amount equal to the product of the Delayed Automobile
Benefit multiplied by the Interest Factor.”
6. Section 3.6(e) of the Employment Agreement, as amended by the First Amendment,
is hereby amended by deleting said subsection in its entirety and substituting therefor
the following:
“(e) The Bank, at its expense, shall provide Executive with an office and the exclusive
use of an executive assistant for a period of twelve (12) months following a Terminating
Event defined in subsection (a) or (b) of Section 3.4 hereof (the “Office Benefit”);
provided, however, that notwithstanding anything to the contrary in this Agreement, if
Executive is determined by the Company to be a ‘specified employee’ within the meaning of
Code Section 409A(a)(2)(B)(i) at the time of her separation from service with the Company or
the Bank, and if the provision of the Office Benefit to Executive without delay would expose
Executive to the 20 percent additional tax imposed by Code Section 409A(a), then no Office
Benefit shall be provided to Executive until the later of (A) the first business day that is
six (6) months and one day following the date of Executive’s ‘separation from service’ (as
such term is defined by Code Section 409A and the regulations promulgated thereunder), or
(B) such later date as required by IRS Notice 2010-6. On such date, the Bank shall provide
or pay Executive (i) the Office Benefit then remaining, and (ii) an amount equal to the
value of the Office
Benefit forfeited by reason of such six-month delay (the “Delayed Office
Benefit”). In the event of any delay in the payment date as set forth in the preceding
sentence, the Bank will increase the payment to reflect the deferred payment date by adding
thereto an amount equal to the product of the Delayed Office Benefit multiplied by the
Interest Factor.”
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7. Section 3.8 of the Employment Agreement is amended by adding the following to
the end thereof:
“If the 30-day period begins in one calendar year and ends in a second calendar year, then
such payment shall be made in the second calendar year.”
8. Upon and after the date of this Second Amendment, all references to the Employment
Agreement shall mean the Employment Agreement as amended by the First Amendment and by this
Second Amendment. Except as expressly provided in this Second Amendment, the execution and
delivery of this Second Amendment does not and will not amend, modify, or supplement any
provision of the Employment Agreement or the First Amendment, and, except as specifically
provided in this Second Amendment, the Employment Agreement and the First Amendment shall
remain in full force and effect.
9. This Second 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.
10. If any provision of this Second 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 Second Amendment will remain in full force and effect.
11. This Second Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, legal representatives, successors and assigns.
12. This Second 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.
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IN WITNESS WHEREOF, the undersigned have executed this Second Amendment on the date set
forth above.
| BANCORP RHODE ISLAND, INC. | ||||||
| By: | /s/ Xxxx X. Xxxx | |||||
| Title: Vice Chairman of the Board | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Title: Chairman, Compensation Committee | ||||||
| BANK RHODE ISLAND | ||||||
| By: | /s/ Xxxx X. Xxxx | |||||
| Title: Vice Chairman of the Board | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Title: Chairman, Compensation Committee | ||||||
| EXECUTIVE | ||||||
| /s/ Xxxxxxx X. Xxxxxxx | ||||||
| Xxxxxxx X. Xxxxxxx | ||||||
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