FORM OF First Amendment to the Change in Control Agreement by and between Provident Community Bancshares, Inc. (formerly Union Financial Bancshares, Inc.) Provident Community Bank and
Exhibit
10(h)
FORM
OF
First
Amendment to the Change in Control Agreement
by and
between Provident Community Bancshares, Inc. (formerly Union Financial
Bancshares, Inc.) Provident Community Bank
and
[EXECUTIVE]
This Amendment to the Change in Control 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 a Change in Control
Agreement dated as of [____________] (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 15:
“15. 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 15. 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.
By:_____________________________________
Title:____________________________________
PROVIDENT
COMMUNITY BANK
By:______________________________________
Title:_____________________________________
________________________________________
[EXECUTIVE]
