Exhibit 10.1





Exhibit 10.1




SECOND AMENDMENT TO

EXECUTIVE EMPLOYMENT AGREEMENT




This Second Amendment to Executive Employment Agreement (the “Amendment”) is made as of this
5th day of October, 2010 by and among COMM BANCORP INC., a Pennsylvania business corporation (“Comm
Bancorp”), COMMUNITY BANK AND TRUST COMPANY, a Pennsylvania state-chartered banking institution
(the “Bank”) and WILLIAM R. BOYLE, an adult individual and resident of the Commonwealth of
Pennsylvania (“Executive”) to amend that certain Executive Employment Agreement dated October 1,
2001 by and among Comm Bancorp, the Bank and the Executive (the “Executive Agreement”).



WITNESSETH:




WHEREAS, Comm Bancorp and the Bank entered into an employment agreement dated October 1, 2001
(“2001 Agreement”);



WHEREAS, the employment agreement was not amended to comply with Internal Revenue Code Section
409A (“Section 409A”); and



WHEREAS, Comm Bancorp, the Bank, and the Executive wish to amend the 2001 Agreement to comply
with Section 409A.



NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
intending to be legally bound hereby, the parties agree as follows:



1. Amendments. The Executive Agreement is hereby amended as follows:



A. The paragraph 9.B. entitled “Disability” shall be deleted in its entirety and the following
paragraph submitted in its place:




DISABILITY. Disability shall have the meaning as set forth in Section 409A
and shall mean 1) the Executive 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 2) the Executive is, 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, receiving income replacement benefits for a
period of not less than three months under an accident and health plan covering employees
of the Bank.


 


 









 





B. Paragraph 9.D. entitled “Health and Good Reason” shall be deleted in its entirety and the
following paragraph submitted in its place:




HEALTH, GOOD REASON, AND CHANGE OF CONTROL. The Executive may terminate his
employment hereunder (1) if he becomes subject to a disability as defined in paragraph 9.B.
or (2) for Good Reason. The term “Good Reason” shall mean (i) any assignment to the
Executive, without his consent, of any duties other than those specifically contemplated by
paragraph 2 hereof, (ii) any removal of the Executive from or any failure to re-elect the
Executive to any of the positions indicated in paragraph 2 hereof, except in connection
with termination of the Executive’s employment for Cause, (iii) failure of either Comm
Bancorp or the Bank, as the case may be, to comply with paragraph 5 hereof, and (iv) any
other material breach of either Comm Bancorp or the Bank of this Agreement.




Executive shall within ninety (90) days of the occurrence of any of the foregoing
events constituting Good Reason, provide notice to Comm Bancorp and the Bank of the
existence of the condition and provide Comm Bancorp and the Bank thirty (30) days in which
to cure such condition. In the event that Comm Bancorp and Bank do not cure the condition
within thirty (30) days of such notice, Executive may resign from employment and give
notice in writing to Comm Bancorp and the Bank and the provisions of paragraph 10.B. of
this Agreement shall apply.




Within two (2) years of a change of control as defined in paragraph 11, Executive may
terminate employment and collect benefits under paragraph 10.B.



C. Paragraph 10 entitled “Payments upon Termination/Non-Extension” shall be deleted in its
entirety and the following new paragraph substituted in its place:




PAYMENTS UPON TERMINATION/NON-EXTENSION




A. FOR CAUSE. If the Executive’s employment shall be terminated for
Cause pursuant to paragraph 9.C., Comm Bancorp and the Bank shall pay the Executive
his full Annual Salary through the date of termination at the rate in effect at the
time of termination (e.g. reimbursements and the value of his accrued but unused
fringe benefits), and neither Comm Bancorp nor the Bank shall have further
obligations to the Executive under this Agreement, except Executive shall receive
all other vested employee benefits to which Executive may be entitled when due and
payable.


 


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B. UNILATERAL, DEATH, DISABILITY AND GOOD REASON TERMINATION. If the
Executive’s employment by either Comm Bancorp or the Bank is terminated (other than
pursuant to paragraph 9.C), or if the Executive shall terminate his employment for
Good Reason or if the Executive’s employment shall be terminated because of death
or disability, then Comm Bancorp and the Bank shall pay the Executive (or his
estate in the case of death) within thirty (30) days of such termination date, the
lump sum equivalent (without discounting for present value) of his full Annual
Direct Salary from the date of termination for the remaining term of this
Agreement.




If Executive terminates his employment as a result of a Change of Control
under Paragraph 9.D or if Executive’s employment is terminated by the successor in
interest as a result of a change of control, then the Bank and Comm Bancorp shall
pay to the Executive, the Executive’s Annual Salary for twenty four (24) months
from the date of termination. In any such event, the Bank and Comm Bancorp shall
continue to provide long-term disability and medical benefits throughout such
period of time that a payment is made under this sub-paragraph 10.B. In the event
that Comm Bancorp and the Bank are unable to continue to provide such benefits
because the Executive is no longer an employee, then Comm Bancorp and the Bank
shall provide the Executive a payment in an amount necessary to reimburse Executive
for the monthly payments made by him to obtain substantially similar benefits.
Executive shall receive all other vested employee benefits to which Executive may
be entitled when due and payable. All other employee fringe benefits shall cease
under the terms provided in the respective plans.




Termination of employment shall having the meaning of “separation of service”
as defined in Section 409A.




D. A new paragraph 10.E. shall be added as follows:




SPECIFIED EMPLOYEE. If when the Executive’s employment terminates, the
Executive is a “specified employee,” as defined in Code Section 409A(a)(2)(B)(i), then
despite any provision of this Agreement or other plan or agreement to the contrary, the
Executive will not be entitled to the payments until the earliest of: (a) the date that is
at least six months after the Executive’s separation from service (within the meaning of
Code Section 409A) for reasons other than the Executive’s death, (b) the date of the
Executive’s death, or (c) any earlier date that does not result in additional tax or
interest to the Executive under Code Section 409A. As promptly as possible after the end
of the period during which payments are delayed under this provision, the entire amount of
the delayed payments shall be paid to the Executive in a single lump sum with any remaining
payments to commence in accordance with the terms of this Agreement or other applicable
plan or agreement.


 


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E. Paragraph 11 “Definition of Change of Control” shall be deleted in its entirety and the
following paragraph submitted in its place:



Definition of Change of Control. A Change of Control shall have the meaning as set
for in Internal Revenue Code Section 409A and the guidance and regulations promulgated thereunder.




F. A new paragraph 19 shall be added as follows:



19. Section 409A. Any payments made pursuant to this Agreement, to the extent of
payments made from the date of termination through March 15th of the calendar year following such
date, are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) and
thus payable pursuant to the “short-term deferral” rule set forth in Treas. Reg. §1.409A-1(b)(4);
to the extent such payments are made following said March 15th, they are intended to constitute
separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) made upon an involuntary termination
from service and payable pursuant to Treas. Reg. §1.409A-1(b)(9)(iii), to the maximum extent
permitted by said provision.



The parties hereto intend that any and all post-employment compensation under this Agreement
satisfy the requirements of Section 409A or an exception or exclusion therefrom to avoid the
imposition of any accelerated or additional taxes pursuant to Section 409A. Any terms not
specifically defined shall have the meaning as set forth in Section 409A.



2. REAFFIRMATION OF EXECUTIVE AGREEMENT. All of the other terms and conditions of the
Executive Agreement remain unchanged and are hereby ratified and affirmed by the Bank and the
Executive except to the extent that they may be inconsistent with this Amendment. When this
Amendment is executed by the parties hereto, it shall become part of the Executive Agreement and
shall have the same force and effect as if the terms and conditions hereof were originally
incorporated into the Executive Agreement.



3. GOVERNING LAW. This Agreement and the rights and obligations hereunder shall be
governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania and the
United States of America.


 


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IN WITNESS WHEREOF, the parties have signed and sealed this Agreement the day and the year
first above written.



	 	 	 	 	 	 	 
	ATTEST:	 	COMM BANCORP, INC.	 	 
	 
	 	 	 	 	 	 
	/s/ Scott A. Seasock
 


	 	By:
	 	/s/ William F. Farber, Sr.
 

William F. Farber, Sr., Chairman, President
	 	 
	Title:

	 	 	 	and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	ATTEST:	 	COMMUNITY BANK & TRUST COMPANY	 	 
	 
	 	 	 	 	 	 
	/s/ Scott A. Seasock
 


	 	By:
	 	/s/ William F. Farber, Sr.
 

William F. Farber, Sr., Chairman, President
	 	 
	Title:

	 	 	 	and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	WITNESS	 	EXECUTIVE	 	 
	 
	 	 	 	 	 	 
	/s/ Scott A. Seasock	 	/s/ William R. Boyle	 	 
	 	 	 	 	 
	 	 	William R. Boyle	 	 







 


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