AMENDMENTS TO THE AMENDED AND RESTATED EMPLOYMENT AGREEMENT BETWEEN GEORGE W. HALIGOWSKI, IMPERIAL CAPITAL BANCORP, INC. AND IMPERIAL CAPITAL BANK TO COMPLY WITH INTERNAL REVENUE CODE SECTION 409A
Exhibit
10.5c
AMENDMENTS
TO THE
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT BETWEEN
XXXXXX
X. XXXXXXXXXX, IMPERIAL CAPITAL BANCORP, INC.
AND
IMPERIAL CAPITAL BANK
TO
COMPLY WITH INTERNAL REVENUE CODE SECTION 409A
WHEREAS,
on February 24, 2006, Xxxxxx X. Xxxxxxxxxx entered into an amended and restated
employment agreement with Imperial Capital Bancorp, Inc. (formerly known as ITLA
Capital Corporation) and Imperial Capital Bank (the “Agreement”);
and
WHEREAS,
the Agreement includes provisions that provide for deferred compensation and
therefore must be amended to comply with Section 409A of the Internal Revenue
Code and the regulations and guidance of general applicability issued
thereunder; and
WHEREAS,
the Agreement may be amended by a writing signed by the parties to the
Agreement.
NOW,
THEREFORE, the foregoing considered, it is agreed as follows:
That
effective as of January 1, 2005, the Agreement is amended to include the
Appendix A, which is attached hereto and included herein by this
reference.
IN
WITNESS WHEREOF, this Amendment has been executed, this 31st day of
December, 2008, effective as of January 1, 2005.
By: /s/ Xxxxxxx X.
Xxxxxxxx
IMPERIAL
CAPITAL BANK
By: /s/ Xxxxxxx X.
Xxxxxxxx
XXXXXX X.
XXXXXXXXXX
By: /s/ Xxxxxx X.
Xxxxxxxxxx
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APPENDIX
A
Provisions
Relating to Code Section 409A
1. Timing of Annual Incentive
Plan and Bonus Payments.
Annual
Incentive Compensation Plan and bonus payments provided for under Paragraph 4(c)
of the Agreement shall be paid no later than 2½ months after the end of the year
in which the Executive obtains a legally binding right to such
payments.
2. Pre-Change in Control
Involuntary Termination Payments under Paragraph 7(a)(ii)
The lump
sum election under Paragraph 7(a)(ii) of the Agreement is eliminated.
Accordingly, Paragraph 7(a)(ii) shall read as follows:
(ii) pay
to the Executive a single lump sum payment equal to the sum of the monthly
payments the Executive would receive if he were paid monthly amounts over the
remaining term of this Agreement equal to (A) one-twelfth of his Base Salary at
the highest annual rate in effect during the three years prior to the Date of
Termination and (B) one-twelfth of the average annual amount of cash bonus and
cash incentive compensation of the Executive, based on the average of the
amounts of such compensation earned by the Executive for the two full fiscal
years preceding the Date of Termination; and
3. Change in Control
Involuntary Termination Payments under Paragraph 7(b)
The
election under Paragraph 7(b) of the Agreement (whereunder the Executive may
receive certain alternative benefits in exchange for a reduction in his lump sum
benefit) shall be limited or eliminated to the extent necessary to comply with
Section 409A.
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