FORM OF Second Amendment to the Employment Agreement by and between Provident Community Bancshares, Inc. (formerly Union Financial Bancshares, Inc.) Provident Community Bank and [EXECUTIVE]
Exhibit 10(n)
FORM OF
Second Amendment to the
Employment Agreement
by and between Provident
Community Bancshares, Inc. (formerly Union Financial Bancshares,
Inc.) Provident Community Bank and
[EXECUTIVE]
This Amendment to the Employment
Agreement between Provident Community Bancshares, Inc., formerly Union Financial
Bancshares, Inc. (the “Company”), Provident Community Bank (the “Bank”)
(collectively referred to herein as the “Employer”) and __________________
(“Executive”) is entered into as of December __, 2008.
WHEREAS, Executive and the
Employer previously entered into an Employment Agreement dated as of
January 1, 2003 (the “Agreement”); and
WHEREAS, Executive and the
Employer desire to amend the Agreement to comply with the requirements of
Section 409A of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree to amend the Agreement by adding
the following new Section 27:
“27. Application of
Section 409A
(i) Executive
will be deemed to have a termination of employment for purposes of determining
the timing of any payments that are classified as deferred compensation only
upon a “separation from service” within the meaning of
Section 409A.
(ii) If at
the time of Executive’s separation from service, (a) Executive is a
“specified employee” (within the meaning of Section 409A and using the
methodology selected by the Employer) and (b) the Employer makes a good
faith determination that an amount payable or the benefits to be provided
hereunder constitutes deferred compensation (within the meaning of
Section 409A), the payment of which is required to be delayed pursuant to
the six-month delay rule of Section 409A in order to avoid taxes or
penalties under Section 409A, then the Employer will not pay the entire
amount on the otherwise scheduled payment date but will instead pay on the
scheduled payment date the maximum amount permissible in order to comply with
Section 409A (i.e., any amount that satisfies an exception under the Section
409A rules from being categorized as deferred compensation) and will pay the
remaining amount (if any) in a lump sum on the first business day after such six
month period.
(iii) To
the extent Executive would be subject to an additional 20% tax imposed on
certain deferred compensation arrangements pursuant to Section 409A as a
result of any provision of this Agreement, such provision shall be deemed
amended to the minimum extent necessary to avoid application of such tax and the
parties shall promptly execute any amendment reasonably necessary to implement
this Section 27. Executive and the Employer agree to cooperate to
make such amendment to the terms of this Agreement as may be necessary to avoid
the imposition of penalties and taxes under Section 409A; provided,
however, that Executive agrees that any such amendment shall provide Executive
with economically equivalent payments and benefits, and Executive agrees that
any such amendment will not materially increase the cost to, or liability of,
the Employer with respect to any payment.
(iv) For
purposes of the this Agreement, Section 409A shall refer to Section 409A of the
Internal Revenue Code of 1986, as amended, and the Treasury regulations and any
other authoritative guidance issued thereunder.”
Except as expressly provided herein,
the terms and conditions of the Agreement shall remain in full force and effect
and shall be binding on the parties hereto until the expiration of the term of
the Agreement. Effectiveness of this Amendment to the Agreement shall
be conditioned upon approval by the Employer’s Boards of Directors (or the
appropriate committees thereof), and this Amendment to the Employment Agreement
shall become effective on the later of date of such approval and execution by
both parties hereto.
IN WITNESS WHEREOF, the parties have
duly executed and delivered this First Amendment to the Agreement, as of the day
and year first above written.
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By:
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Title:
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PROVIDENT
COMMUNITY BANK
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By:
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Title:
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[EXECUTIVE]
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