EXHIBIT 10.9
AMENDMENT NO. 2 TO
CHANGE IN CONTROL AGREEMENT
THIS AMENDMENT NO. 2 TO CHANGE IN
CONTROL AGREEMENT (this “Agreement”) is entered into as
of the 26th day of July, 2007, by and between BOARDWALK BANK, a New
Jersey chartered bank ( “Boardwalk”) and GUY A.
DENINGER, an adult individual (the “Executive”).
WHEREAS, Boardwalk entered into a
Change in Control Agreement with the Executive dated
February 22, 2005, as amended June 1, 2007 (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, Boardwalk and the Executive
desire to modify the Change in Control Agreement during the
transition period under Section 409A of the Internal Revenue
Code (the “Code”) to modify the definition of
“Change in Control” and to require a payment to the
Executive upon the occurrence of a Change in Control without regard
to whether Executive has a termination of employment.
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants set forth herein, the
parties agree as follows:
1. Amendment to Change in
Control Agreement . The following amendments to the Change in
Control Agreement are effective as of July 1, 2007, and the
modifications to the Change in Control Agreement set forth herein
shall be incorporated into the terms of the Change in Control
Agreement as follows:
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(a) |
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Section 2 shall be renamed “Change in Control
Payment” and Section 2(a) shall be deleted and the following
substituted therefor: |
(a) Payment Upon Change in Control.
Notwithstanding anything herein to the contrary, in the event of a
Change in Control (as defined in Section 2(b), Executive shall
be entitled to the payment set forth in Section 3 on the later
of the Closing Date of the Change in Control or the first business
day in January 2008.
(b) Section 2(b) shall be
amended as follows:
(b) Change in Control Defined. For
purposes of this Agreement, the term “Change in
Control” shall mean a (1) a change in ownership of
Bancorp or Boardwalk under paragraph (i) below, or (2) a
change in effective control of Bancorp or Boardwalk under paragraph
(ii) below, or (3) a change in the ownership of a substantial
portion of the assets of Bancorp or Boardwalk under paragraph
(iii) below:
(i) Change in ownership of the
Boardwalk or Bancorp . A change in the ownership of
Boardwalk or Bancorp shall occur on the date that any one person,
or more than one person acting as a group (as defined in Treasury
Regulation Section 1.409A-
3(i)(5)(v)(B)),
acquires ownership of stock of the corporation that, together with
stock held by such person or group, constitutes more than 50% of
the total fair market value or total voting power of the stock of
such corporation; or
(ii) Change in the effective control
of Boardwalk or Bancorp. A change in the effective control of
Boardwalk or Bancorp shall oc
