questions or disagreements
arising hereunder.
(E)
A NEW SECTION 6(E) SHALL BE ADDED TO READ IN ITS ENTIRETY AS FOLLOWS:
(e)
Certain Payments to Specified Employee.
Notwithstanding anything in
Sections 6(a) and 6(b) to the contrary, in the event that the Executive's
employment is terminated within the six month period following the occurrence of
a Change in Control (pursuant to the Executive exercising his rights under
Section 5(c) or otherwise), and on the effective date of such termination of
employment the Executive is a "specified employee" as such term is defined in
Treas. Reg. § 1-409A-1(i), payments due to the Executive under Sections 6(a) and
6(b) shall be made on the earlier of (i) the first day of the seventh month
after the Executive's termination of employment or (ii) the date of the
Executive's death.
Notwithstanding the foregoing, the parties agree that, to
the extent that any payments are made from the date of the occurrence of such
Change in Control through March 15 of the calendar year following the occurrence
of such Change in Control, such payments are intended to constitute separate
payments for purposes of Treas. Reg. § 1.409A-2(b)(2) and thus are payable
pursuant to the "short-term deferral" rule set forth in Treas. Reg. §
1-409A-1(b)(4).
2.
CONTINUATION OF EMPLOYMENT AGREEMENT.
EXCEPT AS AMENDED HEREBY, THE
EMPLOYMENT AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT IN ACCORDANCE WITH
ITS TERMS.
3.
APPLICABLE LAW.
THIS AMENDMENT TO THE EMPLOYMENT AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS (BUT NOT THE LAW
OF CONFLICT OF LAWS) OF THE STATE OF NEW JERSEY.
4.
REPRESENTATIONS AND WARRANTIES.
THE PARTIES HERETO REPRESENT AND WARRANT TO
EACH OTHER THAT THEY HAVE CAREFULLY READ THIS AMENDMENT TO THE EMPLOYMENT
AGREEMENT AND CONSULTED WITH RESPECT THERETO WITH THEIR RESPECTIVE COUNSEL, AND
THAT EACH OF THEM FULLY UNDERSTANDS THE CONTENT OF THIS AMENDMENT TO THE
EMPLOYMENT AGREEMENT AND ITS LEGAL EFFECT.
EACH PARTY HERETO ALSO REPRESENTS
AND WARRANTS THAT THIS AMENDMENT TO THE EMPLOYMENT AGREEMENT IS A LEGAL, VALID
AND BINDING OBLIGATION OF SUCH PARTY WHICH IS ENFORCEABLE AGAINST SUCH PARTY IN
ACCORDANCE WITH ITS TERMS.
5.
SUCCESSORS AND ASSIGNS.
THIS AMENDMENT TO THE EMPLOYMENT AGREEMENT SHALL BE
BINDING UPON, INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE PARTIES HERETO
AND THEIR RESPECTIVE HEIRS, LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS.
BOARDWALK SHALL REQUIRE ANY SUCCESSOR (WHETHER DIRECT, INDIRECT, BY PURCHASE,
MERGER, CONSOLIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS
OR ASSETS OF EITHER BANCORP OR BOARDWALK TO EXPRESSLY ASSUME AND AGREE TO
PERFORM THIS AMENDMENT TO THE EMPLOYMENT AGREEMENT, IN THE SAME MANNER AND TO
THE SAME EXTENT THAT BOARDWALK WOULD BE REQUIRED TO PERFORM IT IF NO SUCH
SUCCESSION HAD TAKEN PLACE, UNLESS THE PROVISIONS HEREOF WILL BE BINDING UPON
SUCH SUCCESSOR BY OPERATION OF LAW.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the parties have executed this amendment to the Employment
Agreement, or caused it to be executed, as of the date first above