Exhibit 10.6
AMENDMENT NO. 1 TO
CHANGE IN CONTROL AGREEMENT
THIS AMENDMENT
NO. 1 TO CHANGE IN CONTROL AGREEMENT
(this ”Agreement”) is entered into as of the 1st
day of June 2007, by and between BOARDWALK BANK, a New Jersey
commercial bank (“Boardwalk”), and GUY A. DENINGER, an
adult individual (the ”Employee”).
WHEREAS, Boardwalk
entered into a Change in Control Agreement with the Employee dated
as of February 22, 2005 (the ”Change in Control
Agreement”);
WHEREAS, effective
July 1, 2006, Boardwalk formed Boardwalk Bancorp, Inc., a
New Jersey business corporation and bank holding company of
Boardwalk (“Bancorp”); and
WHEREAS, each of
Boardwalk and the Employee desires to amend the Change in Control
Agreement (i) to modify the definition of Change in Control in
order to reflect the formation of Bancorp, (ii) to make
certain modifications in order to comply with the final regulations
regarding nonqualified deferred compensation and Section 409A
of the Internal Revenue Code of 1986, as amended, issued on
April 10, 2007 by the Treasury Department and the Internal
Revenue Service and (iii) to provide for certain tax gross-up
provisions.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants set forth
herein, the parties hereto agree as follows:
1. Amendment of Change in Control
Agreement . The following amendment to the Change in
Control Agreement are effective as of February 22, 2005,
except for Section 1(a) hereof which is effective as of
July 1, 2006, and the modifications to the Change in Control
Agreement set forth herein shall be incorporated into the terms of
Change in Control Agreement as follows:
(a) Section 2(b) shall be amended as
follows:
(b) CHANGE IN CONTROL DEFINED. As
used in this Agreement, the term “Change in Control”
means any of the following:
(i) any “person” (as such
term is used for purposes of Section 13(d) of the Securities
Exchange Act of 1934 (the “Exchange Act”) as in
effect on the date hereof), other than Boardwalk Bancorp, Inc,
a New Jersey business corporation (“Bancorp”), a
subsidiary of Bancorp, or an employee benefit plan of Bancorp or a
subsidiary of either Bancorp or Boardwalk (including a related
trust), becomes the beneficial owner (as determined pursuant to
Rule 13d-3 under the Exchange Act), directly or indirectly of
securities of Bancorp representing more than 24.9% of either
(A) the combined voting power of Bancorp’s then
outstanding voting securities or (B) the aggregate number of
shares of Bancorp’s then outstanding common stock;
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(ii) the occurrence of a sale of all or
substantially all of the assets of either Bancorp or Boardwalk to
an entity which is not a direct or indirect subsidiary of either
Bancorp or Boardwalk;
(iii) the occurrence of a reorganization,
merger, consolidation or similar transaction involving Bancorp,
unless (A) the shareholders of Bancorp immediately prior to
the consummation of any such transaction initially thereafter own
securities representing at least a majority of the voting power of
the surviving or resulting corporation and (B) the directors
of Bancorp immediately prior to the consummation of such
transaction initially thereafter represent at least a majority of
the directors of the surviving or resulting corporation;
(iv) a plan of liquidation or
dissolution, other than pursuant to bankruptcy or insolvency, is
adopted for either Bancorp or Boardwalk;
(v) during any period of two consecutive
years, individuals who, at the beginning of such period,
constituted the Board of Directors of Bancorp cease to constitute
the majority of such Board (unless the election of each new
director was expressly or by implication approved by a majority of
the Board members who were still in office and who were directors
at the beginning of such period); and
(vi) the occurrence of any other event
which is irrevocably designated as a “change in
control” for purposes of this Agreement by resolution adopted
by a majority of the then non-employee directors of
Bancorp.
Notwithstanding the foregoing, a Change in
Control will not be deemed to have occurred if a person becomes the
beneficial owner, directly or indirectly, of securities
representing more than 24.9% of the combined voting power of
Bancorp’s then outstanding voting securities or the aggregate
number of shares of Bancorp’s then outstanding common stock
solely as a result of an acquisition by Bancorp of its common stock
or voting securities which, by reducing the number of voting
securities or common stock outstanding, increases the
proporti
