FORM OF Amendment to the Employment Agreement (409A)
Exhibit
10(p)
FORM
OF
Amendment
to
the
(409A)
This
Amendment to the Employment Agreement is entered into as of [date], by and between Xxxxx
Spring Bancorp, Inc., Xxxxx Spring Bank (collective referred to as the
“Employers”), and [name]
(the “Officer”).
WHEREAS,
the Officer is currently employed as the [title] of the
Employers;
WHEREAS, the Officer and
the Employers previously
entered into
an Employment Agreement dated [date] (the “Employment
Agreement”);
WHEREAS,
the Officer and the Employers desire to amend the Employment 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 Employment Agreement as follows:
1. A
new Section 27 is added to the Employment Agreement to read as
follows:
27. Section 409A
(i) The
Officer 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 the Officer’s separation from service, (a) the Officer is a
“specified employee” (within the meaning of Section 409A and using the
methodology selected by the Employers) and (b) the Employers make 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 Employers 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 the Officer 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. The Officer and the Employers 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 the Officer agrees that any such amendment shall provide the
Officer with economically equivalent payments and benefits, and the Officer
agrees that any such amendment will not materially increase the cost to, or
liability of, the Employers 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.
2. Except
as expressly provided herein, the terms and conditions of the Employment
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.
3. Effectiveness
of this Amendment to the Employment Agreement shall be conditioned upon approval
by Employers’ 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 (the “Effective
Date”).
[signature
page follows]
IN WITNESS WHEREOF, the parties have
duly executed and delivered this Amendment to the Employment Agreement, or have
caused this Amendment to the Employment Agreement to be duly executed and
delivered in their name and on their behalf, as of the day and year first above
written.
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XXXXX
SPRING BANCORP, INC.
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By:
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Title:
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XXXXX
SPRING BANK
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By:
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Title:
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OFFICER
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Name
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