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FIRST
AMENDMENT TO
AMENDED
AND RESTATED ENFIELD FEDERAL SAVINGS AND LOAN ASSOCIATION
EXECUTIVE
SUPPLEMENTAL RETIREMENT PLAN
THIS FIRST AMENDMENT (this “Amendment”)
to the Amended and Restated Executive Supplemental Retirement Plan for Enfield
Federal Savings and Loan Association, as amended and restated effective April 1,
2006 (the “Plan”), is made and entered into effective as of November 12, 2008 by
Enfield Federal Savings and Loan Association (the “Association”).
RECITALS:
WHEREAS, Enfield Federal Savings and
Loan Association desires to amend the Plan to ensure that the Plan complies with
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”);
and
WHEREAS, pursuant to Section 8.17 of
the Plan, the Board of Directors of the Association (the “Board”) may amend the
Plan to comply with Section 409A of the Code;
NOW, THEREFORE, in consideration of the
premises, the mutual agreements herein set forth and such other consideration
the sufficiency of which is hereby acknowledged, the Board hereby amends the
Plan as follows:
Section
1. References to Enfield
Federal Savings and Loan Association. All references to
Enfield Federal Savings and Loan Association in the Plan shall include any
successor thereto.
Section
2. New Section 4.3(c) of the
Plan. Section 4.3 of the Plan is hereby amended to add a new
Section 4.3(c) to read in its entirety as follows:
“(c) For
purposes of this Plan, any termination of a Participant’s employment shall be
construed to require a “Separation from Service” in accordance with Code Section
409A and the regulations promulgated thereunder, such that the Association and
Participant reasonably anticipate that the level of bona fide services
Participant would perform after termination would permanently decrease to a
level that is less than 50% 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.”
Section
3. Amendment to Section 6.5 of
the Plan. Section 6.5 of the Plan is hereby amended and
restated to renumber Section 6.5 as Section 6.5(a) and to add a new Section
6.5(b) to read in its entirety as follows:
“Under no
circumstances may the Plan permit the acceleration of the time or form of any
payment under the Plan prior to the payment events specified herein, except as
provided in this Section 6.5. The Board of Directors of the
Association may, in its discretion, elect to terminate the Plan in any of the
following three circumstances and accelerate the
payment
of the entire unpaid balance of the Participant’s benefits as of the date of
such payment in accordance with Section 409A of the Code:
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(i)
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the
Plan is irrevocably terminated within the 30 days preceding a Change in
Control and (1) all arrangements sponsored by the Association that would
be aggregated with the Plan under Treasury Regulation §1.409A-1(c)(2) are
terminated, and (2) the Participants and all participants under the other
aggregated arrangements receive all of their benefits under the terminated
arrangements within 12 months of the date the Association irrevocably
takes all necessary action to terminate the Plan and the other aggregated
arrangements;
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(ii)
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the
Plan is irrevocably terminated at a time that is not proximate to a
downturn in the financial health of the Association and (1) all
arrangements sponsored by the Association that would be aggregated with
the Plan under Treasury Regulation 1.409A-1(c) if a Participant
participated in such arrangements are terminated, (2) no payments are made
within 12 months of the date the Association takes all necessary action to
irrevocably terminate the arrangements, other than payments that would be
payable under the terms of the arrangements if the termination had not
occurred, (3) all payments are made within 24 months of the date the
Association takes all necessary action to irrevocably terminate the
arrangements, and (4) the Association does not adopt a new arrangement
that would be aggregated with the Plan under Treasury Regulation
1.409A-1(c) if a Participant participated in both arrangements, at any
time within three years following the date the Association takes all
necessary action to irrevocably terminate the Plan;
or
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(iii)
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the
Plan is terminated within 12 months of a corporate dissolution taxed under
Section 331 of the Code, or with the approval of a bankruptcy court
pursuant to 11 U.S.C. §503(b)(1)(A), provided that the amounts deferred by
each Participant under the Plan are included in the Participant’s gross
income in the later of (1) the calendar year in which the termination of
the Plan occurs, or (2) the first calendar year in which the payment is
administratively practicable.”
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Section
4. New Section 8.18 of the
Plan. Section 8.18 of the Plan is hereby amended to add a new
Section 8.18 to read in its entirety as follows:
“8.18 Source of
Payments. All payments provided in this Plan shall be timely
paid in cash or check from the general funds of the Association. The Company,
however, unconditionally guarantees payment and provision of all amounts and
benefits due hereunder to Participant and, if such amounts and benefits due from
the Association are not timely paid or provided by the Association, such amounts
and benefits shall be paid or provided by the Company.”
Section
5. No Further
Modification. Except as expressly amended hereby, the Plan
remains unmodified and in full force and effect.
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Section
6. Effectiveness. This
Amendment shall be deemed effective as of the date first above written, as if
executed on such date. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Plan, all of which are ratified and affirmed in all respects
and shall continue in full force and effect and shall be otherwise
unaffected.
Section
7. Governing
Law. This Amendment and the rights and obligations hereunder
shall be governed by and construed in accordance with the laws of the State of
Connecticut, except to the extent preempted by the laws of the United States of
America.
Section
8. Compliance with Section
409A. This Plan shall be interpreted and administered
consistent with Section 409A of the Code.
IN
WITNESS WHEREOF, the Company and Association has duly executed this Amendment as
of the day and year first written above.
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NEW
ENGLAND BANCSHARES, INC.
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By:
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/s/ Peter T. Dow
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Peter
T. Dow
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Chairman
of the Board of Directors
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ENFIELD
FEDERAL SAVINGS AND LOAN ASSOCIATION
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By:
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/s/ Peter T. Dow
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Peter
T. Dow
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Chairman
of the Board of Directors
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The Participant hereby acknowledges
that this Amendment will amend and modify the Participation Agreement and shall
be treated, to the extent applicable, as an amendment to the Participation
Agreement.
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PARTICIPANT
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/s/ David O’Connor
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David
O’Connor
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