Exhibit 10.1.1


 


ENTERPRISE BANK AND TRUST COMPANY


FIRST AMENDMENT TO SALARY CONTINUATION AGREEMENT


 


THIS FIRST AMENDMENT is adopted this 19th day of
December, 2008 by and between ENTERPRISE BANK AND TRUST COMPANY, a
state-chartered commercial bank located in Lowell, Massachusetts (the “Bank”),
and GEORGE L. DUNCAN (the “Executive”).


 


The Bank and the Executive have previously executed
that certain Salary Continuation Agreement on July 15, 2005 effective as
of January 1, 2005 (the “Agreement”).


 


The
undersigned hereby amend the Agreement for the purpose of bringing the
Agreement into compliance with Section 409A of the Internal Revenue Code
of 1986, as amended.  Therefore, the
following changes shall be made:


 


Sections 1.2 and 1.13 of the Agreement shall be deleted in their
entirety.


 


Section 1.17 of the Agreement shall be deleted in its entirety and
replaced by the following:


 


1.17                           “Separation from Service” means
termination of the Executive’s employment  with the Bank for
reasons other than death or Disability. 
Whether a Separation from Service has occurred is determined in
accordance with the requirements of Code Section 409A based on whether the
facts and circumstances indicate that the Bank and Executive reasonably
anticipated that no further services would be performed after a certain date or
that the level of bona fide services the Executive would perform after such
date (whether as an employee or as an independent contractor) would permanently
decrease to no more than twenty percent (20%)  of
the average level of bona fide services performed (whether as an employee or an
independent contractor) over the immediately preceding thirty-six (36) month
period (or the full period of services to the Bank if the Executive has been
providing services to the Bank less than thirty-six (36) months).


 


The first sentence of Section 2.1 of the Agreement shall be
deleted in its entirety and replaced by the following:


 


2.1                                 Normal Retirement Benefit. 
If the Executive reaches Normal Retirement Age prior to experiencing a
Separation from Service, the Bank shall distribute the benefit described in
this Section 2.1 in lieu of any other benefit under this Article.


 


The first sentence of Section 2.3 of the Agreement shall be
deleted in its entirety and replaced by the following:


 


2.3                                 Disability Benefit. 
Upon the occurrence of Disability prior to Normal Retirement Age, the
Bank shall distribute the benefit described in this Section 2.3 in lieu of
any other benefit under this Article.


 

















 


The first sentence of Section 2.4 and Subsections 2.4.1 and 2.4.2
of the Agreement shall be deleted in their entirety and replaced by the
following:


 


2.4                                 Change of Control Benefit. 
Upon a Change in Control, the Bank shall distribute the benefit
described in this Section 2.4 in lieu of any other benefit under this
Article.


 


2.4.1                        Amount of Benefit. 
The benefit under this Section 2.4 is the Normal Retirement Benefit
amount described in Section 2.1.1. 
The Executive shall be one hundred percent (100%) vested in the Normal
Retirement Benefit upon a Change in Control.


 


2.4.2                        Distribution of Benefit. 
The Bank shall distribute the annual benefit to the Executive in twelve
(12) consecutive equal monthly installments commencing within thirty (30) days
following a Change in Control.  The
annual benefit shall be distributed to the Executive for twenty (20) years.


 


The following Section 2.6 shall be added to the Agreement
immediately following Section 2.5:


 


2.6                                 Change in Form or Timing of
Distributions.  For
distribution of benefits under this Article 2, the Executive and the Bank
may, subject to the terms of Sections 8.1 and 8.2 below, amend this Agreement
to delay the timing or change the form of distributions; provided, however,
that any such amendment:


 


(a)                                  may
not accelerate the time or schedule of any distribution, except as provided in
Code Section 409A;


 


(b)                                 must,
for benefits distributable under Sections 2.1 and 2.3, be made at least twelve
(12) months prior to the first scheduled distribution;


 


(c)                                  must,
for benefits distributable under Sections 2.1, 2.2 and 2.4, delay the
commencement of distributions for a minimum of five (5) years from the
date the first distribution was originally scheduled to be made; and


 


(d)                                 must take effect not less than twelve (12)
months after the amendment is made.


 


The first sentence of Section 3.1 of the Agreement shall be
deleted in its entirety and replaced by the following:


 


3.1                                 Death Benefit. 
If the Executive dies prior to experiencing a Separation from Service
and prior to reaching Normal Retirement Age, the Bank shall distribute to the
Beneficiary the benefit described in this Section 3.1 in lieu of any other
benefit under Article 2 of this Agreement.


 


Section 8.1, including without limitation Subsections 8.1.1 and
8.1.2, of the Agreement shall be deleted in its entirety and replaced by the
following:


 


8.1                                 Amendments.  This Agreement may be amended
only by a written agreement signed by the Bank and the Executive.  However, the Bank may unilaterally amend this
Agreement 


 


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to conform with written directives to the Bank from
its auditors or banking regulators or to comply with legislative or
administrative changes of applicable tax law, including without limitation Section 409A
of the Code and any and all Treasury regulations and guidance promulgated
thereunder.


 


The following Sections 8.3 and 8.4 shall be added to the Agreement
immediately following Section 8.2:


 


8.3                                 Plan Termination Generally.  This
Agreement may be terminated only by a written agreement signed by the Bank and
the Executive.  Any termination of this
Agreement shall not result in any loss of accrued benefits to the Executive,
and the benefit to the Executive hereunder in the event of any such termination
shall be the Account Value as of the date this Agreement is terminated.  Except as provided in Section 8.4 below,
the termination of this Agreement shall not cause a distribution of benefits
under this Agreement.  Rather, after such
termination, benefit distributions will be made at the earliest distribution
event permitted under Article 2 or Article 3 of this Agreement.


 


8.4                                 Plan Terminations Under Section 409A. 
Notwithstanding anything to the contrary in Section 8.3 above, if
this Agreement is terminated under any of the following circumstances, then the
Bank may distribute the Account Value, as determined as of the date of such
termination, to the Executive in a lump sum, subject to the terms set forth
below:


 


(a)                                  Within thirty (30) days before or twelve (12)
months after a Change in Control, provided that all distributions are made no
later than twelve (12) months following such termination of this Agreement and
further provided that all of the Bank’s arrangements that are
substantially similar to this Agreement are likewise terminated so that the
Executive and all participants in such similar arrangements are required
to receive all amounts of compensation deferred under the terminated
arrangements within twelve (12) months of such terminations;


 


(b)                                 Upon the Bank’s dissolution or with the
approval of the Federal Deposit Insurance Corporation or any successor federal
agency, provided that the amounts deferred under this Agreement are included in
the Executive’s gross income in the latest of (i) the calendar year in
which this Agreement is terminated; (ii) the calendar year in which the
amount payable to the Executive under this Agreement is no longer subject to a
substantial risk of forfeiture; or (iii) the first calendar year in which
the distribution is administratively practical; or


 


(c)                                  Upon the Bank’s termination of this Agreement
and all other arrangements that would be aggregated with this Agreement
pursuant to Treasury Regulations Section 1.409A-1(c) if the Executive
participated in such arrangements (“Similar Arrangements”), provided that (i) such
termination and accompanying liquidation of the Account Value does not occur
proximate to a downturn in the financial health of the Bank, (ii) all
termination distributions are made no earlier than twelve (12) months and no
later than twenty-four (24) months following such termination, and (iii) the
Bank does not adopt any new arrangement that would be a Similar Arrangement for
a minimum of three (3) years following the date on 


 


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which the Bank takes all necessary action to
irrevocably terminate this Agreement and liquidate the Account Value.


 


IN WITNESS OF THE ABOVE, the Executive and a duly authorized representative of the Bank have
signed this First Amendment as a sealed instrument.


 


 


	
  Executive:

  	
   

  	
  Enterprise Bank and Trust
  Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ George L. Duncan

  	
   

  	
  By:

  	
   /s/ John P. Clancy, Jr.

  
	
  George L. Duncan

  	
   

  	
  Title: Chief Executive Officer

  



 


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