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Exhibit
10.16
AMENDED AND RESTATED
CHANGE OF CONTROL AGREEMENT FOR SENIOR OFFICERS
This CHANGE OF CONTROL
AGREEMENT was originally entered into on the 24 th day of May 2004 (the “Original
Execution Date”) by and between The Rome Savings Bank (the
“Bank” or “Rome”) and David C. Nolan
(“Employee”) and is hereby amended as of
November 28, 2007 and referred to as the AMENDED AND RESTATED
CHANGE OF CONTROL AGREEMENT
(“Agreement”).
In consideration of the
mutual covenants set forth below, the parties agree as
follows:
WHEREAS; Rome employs Employee as Chief
Financial Officer and Employee devotes his full business time and
attention to the business and affairs of Rome and its affiliates,
giving his best efforts to advance Rome’s
interests.
WHEREAS; Employee performs such
functions and duties and exercises those responsibilities that are
consistent with this title and office as may be assigned to him by
or under the authority of the President or the Board of Directors
of Rome.
NOW THEREFORE; In consideration of
Employee’s long and faithful service, Rome wishes to reward
such service with such salary action in the event that there is a
CHANGE OF CONTROL resulting in the Involuntary Termination of
Employee’s employment within twelve (12) months from the
date of CHANGE OF CONTROL. A CHANGE OF CONTROL means the
consummation of a transaction that would result in the
reorganization, merger or consolidation of Rome with one or more
persons or entities as defined in Section I below:
I. CHANGE OF CONTROL
For purposes of this Agreement a CHANGE
OF CONTROL of the Bank shall occur if:
(a) any “person” (as such
term is used in section 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the “1934 Act”), other than
(i) the holding company to be formed in connection with the
conversion of the Bank to the stock form of ownership; or
(ii) a trustee or other fiduciary holding securities under an
Employee benefit plan maintained for the benefit of
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Employees of the Bank, becomes the
“beneficial owner” (as defined in rule 13d-3
promulgated under the 1934 Act), directly or indirectly, of
securities issued by the Bank representing 25% or more of the
combined voting power of all of the Bank’s then outstanding
securities; or
(b) the individuals who on the date this
Agreement is made are members of the Board, together with their
successors as defined below, cease for any reason to constitute a
majority of the members of the Board; or
(c) the shareholders of the Bank approve
either:
(i) a merger or consolidation of Rome
with any other corporation other than a merger or consolidation
following which both of the following conditions are
satisfied:
(A) either (1) the members of the
Board of the Bank immediately prior to such merger or consolidation
constitute at least a majority of the members of the governing body
of the institution resulting from such merger or consolidation; or
(2) the shareholders of the Bank own securities of the
institution resulting from such merger or consolidation
representing eighty percent or more of the combined voting power of
all such securities of the Bank before such merger or
consolidation; and
(B) the entity which results from such
merger or consolidation expressly agrees in writing to assume and
perform the Bank’s obligations under this Agreement;
or
(ii) a plan of complete liquidation of
the Bank or an agreement for the sale or disposition by the Bank of
all or substantially all of its assets; and
(d) any event which would be described
in sections I. (a), (b) or (c) if either term
“Parent Corporation of the Bank” or “Parent
Corporation of the Parent Corporation of the Bank” were
substituted for the term “Bank” therein. Such an event
shall be deemed a CHANGE OF CONTROL under the relevant provisions
of section I. (a), (b) or (c).
The definition of CHANGE OF CONTROL
shall include any subsequent amendments to the 1934 Securities
Exchange Act that modify or change such definition.
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It is understood and agreed that more
than one CHANGE OF CONTROL may occur at the same time or different
times during the effective period of this Agreement and that the
provision of this Agreement shall apply with equal force and effect
with respect to each such CHANGE OF CONTROL.
II. TERMINATION OF
EMPLOYMENT
For purposes of this Agreement, an
Involuntary Termination following a CHANGE OF CONTROL means the
surviving entity eliminates the Employee’s position or
discharges the Employee for whatever reason other than for Cause.
Cause is defined as personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of
any law, rule, or regulation (other than traffic violations or
similar offenses) or a final cease and desist order.
An Employee’s Involuntary
Termination following a CHANGE OF CONTROL also means resignation
following any demotion, loss of title, office authority or
responsibility, a reduction in compensation or benefits or
relocation in whole or in part of the place of employment to a
location more than thirty (30) miles from the City of Rome,
New York.
III. ADDITIONAL
COMPENSATION
In the event the Employee’s
employment is terminated due to an Involuntary Termination
following a CHANGE OF CONTROL of Rome, the Employee shall be
entitled to receive a Severance Payment equal to three
(3) years of Compensation. Such payment shall be made to the
Employee within thirty (30) days of the Involuntary
Termination.
For purpose of this Section III,
Compensation shall mean the salary and bonus earned (whether or not
paid) in the calendar year immediately preceding the year the
CHANGE OF CONTROL occurs.
The Employee and the Bank acknowledge
that each of the payments promised under this Agreement must either
comply with the requirements of Section 409A (“Section
409A”) of the Internal Revenue Code of 1986, as amended (the
“Code”) and the regulations thereunder or qualify for
an exception from compliance. To that end, the Employee and the
Bank agree that the termination benefits described in Section III
are intended to be exempt from Section 409A pursuant to
Treasury Regulation Section 1.409A-1(b)(4) as short-term
deferrals.
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IV. NO OTHER RIGHTS OR BENEFITS
AFFECTED
If a CHANGE O
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