Unassociated Document


  
    Exhibit
10.12

     

    First Amendment to Excise
Tax Reimbursement Agreement

    


    THIS
FIRST AMENDMENT to that certain Excise Tax Reimbursement Agreement dated on and
as of June 1, 2007 (the “ETR Agreement”) is entered into on and as of October
30, 2008, by and between Community Partners Bancorp (“CPB”), a corporation
organized under the laws of the state of New Jersey, 1250 Highway 35 South,
Middletown, NJ 07748, for its subsidiaries, affiliates and itself; and Michael
J. Gormley (“Executive”), whose business address is 1250 Highway 35 South,
Middletown, NJ 07748.

    


    WHEREAS,
CPB and Executive wish to enter into this Amendment to the ETR Agreement so as
to modify the manner in which the amount payable to Executive as the
Reimbursement Payment is calculated, and fully conform the ETR Agreement to the
applicable provisions of Section 409A of the Internal Revenue Code of 1986 and
the final Treasury Regulations which have been promulgated under Section
409A.

    


    NOW,
THEREFORE, in consideration of the mutual promises set forth in this Amendment,
the sufficiency of which are hereby acknowledged, CPB and Executive agree that
the ETR Agreement is amended as follows:

    


    1. By
deleting the third sentence of Section 2, and inserting the following in its
stead:

    


    “The
amount of the Reimbursement Payment shall be initially determined by the
Auditor, which shall, with Executive’s full cooperation, prepare a pro forma analysis of the
Executive’s federal and state income tax liability for the calendar year in
which the Reimbursement Payment is to be made and determine the amount of the
Reimbursement Payment on the basis of such analysis.  When Executive
files his or her federal and state income tax returns for the calendar year in
which the Reimbursement Payment is made, Executive shall immediately provide
copies of such filed federal and state tax returns to the Auditor, which shall
adjust the initial Reimbursement Payment appropriately, it being the express
purpose of the process described in this and the preceding sentence to put
Executive in the same economic position as he or she would have been in had the
Excise Tax not been imposed.  CPB shall immediately pay to Executive
the full amount of any positive adjustment to the Reimbursement Payment, and
Executive shall immediately pay to CPB the full amount of any negative
adjustment to the Reimbursement Payment.  The Auditor’s initial
determination of the Reimbursement Payment shall be conclusive, as shall the
Auditor’s determination of any adjustment to the Reimbursement
Payment.”

    


    2. By
deleting the phrase “..upon the payment to Executive of the Total Payments...” in
the first sentence of Section 3, and inserting in its stead “...upon the initial
determination of the Reimbursement Payment by the Auditor under Section 2 of
this Agreement, which shall be not later than thirty (30) days after payment to
the Executive of the Total Payments...”

    


    3. By
adding the following text to Section 3:

    


    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

       

    

    “Notwithstanding
any term of this Agreement to the contrary, (i) the Reimbursement Payment shall
be paid in full to the Executive not later than the end of the Executive’s
taxable year next following the Executive’s taxable year in which the Executive
remits the taxes which gave rise to the Reimbursement Payment under this
Agreement; and (ii) any amount reimbursed to the Executive, or expended by CPB
on the Executive’s behalf or for the Executive’s direct benefit, with respect to
any audit or litigation pertaining to Total Payments or the Reimbursement
Payment shall be paid or expended, as the case may be, not later than the end of
the Executive’s taxable year following the Executive’s taxable year in which the
taxes that are the subject of the audit or litigation are remitted to the taxing
authority, or where as a result of such audit or litigation no taxes are
remitted, the end of the Executive’s taxable year following the Executive’s
taxable year in which the audit is completed, or there is a final and
nonappealable settlement or other resolution of the litigation.”

    


    Except as
set forth in this Amendment, the ETR Agreement shall remain in full force and
effect, enforceable in accordance with its terms.

    


    IN
WITNESS WHEREOF, and intending to be mutually bound, CPB and Executive have
entered into this Amendment on and as of the date first set forth
above.

     

    
      
        	
                WITNESS:

              	 
      	 
      	 
      	 
	 	 	 	 	 
	 	 	 	 	 
	 
      	 
      	 
      	 
      	 
	
                /s/Linda
      Austin       

              	 
      	/s/Michael
      J. Gormley      	 
	 
      	 
      	Michael
      J. Gormley, individually	 
	 
      	 
      	 
      	 
      	 
	
                ATTEST:

              	 
      	
                COMMUNITY
      PARTNERS BANCORP

              	 
	 
      	 
      	 
      	 
      	 
	 	 	 	 	 
	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
	
                /s/Michael
      W. Kostelnik

              	 
      	
                By:

              	
                /s/Charles
      T. Parton

              	 
	
                Michael
      W. Kostelnik, Secretary

              	 
      	 
      	
                Charles
      T. Parton, Chairman

              	 
	 
      	 
      	 
      	 
      	 
	      
                Joinder:

              	 	 	 	 
	 	 	 	 	 
	
                ATTEST:

              	 
      	
                TWO
      RIVER COMMUNITY BANK

              	 
	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
	 	 	 	 	 
	 
      	 
      	 
      	 
      	 
	
                /s/Michael
      W. Kostelnik

              	 
      	
                By:

              	
                /s/William
      D. Moss

              	 
	
                Michael
      W. Kostelnik, Secretary

              	 
      	 
      	
                William
      D. Moss, President

              	 


      

       

       

    

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