SECOND AMENDMENT TO THE MCINTOSH STATE BANK SALARY CONTINUATION AGREEMENT DATED DECEMBER 19, 2002 AND AMENDED JANUARY 9, 2007 FOR WILLIAM K. MALONE
SECOND
AMENDMENT
TO
THE
XXXXXXXX
STATE BANK
SALARY
CONTINUATION AGREEMENT
DATED
DECEMBER 19, 2002
AND
AMENDED JANUARY 9, 2007
FOR
XXXXXXX
X. XXXXXX
THIS SECOND AMENDMENT is adopted this
30th day of November, 2008, by and between XXXXXXXX STATE BANK, a
state-chartered commercial bank located in Xxxxxxx, Xxxxxxx (the “Company”), and
XXXXXXX X. XXXXXX (the “Executive”).
The Company and the Executive executed
the Salary Continuation Agreement on December 19, 2002 effective as of January
1, 2003, and executed a First Amendment on January 9, 2007 (the
“Agreement”).
The undersigned hereby amend the
Agreement to reflect the final 409A Treasury Regulations. Therefore, the
following changes shall be made:
Section
1.1 of the Agreement shall be deleted in its entirety and replaced by the
following:
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1.1
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“Change in
Control” means a change in the ownership or effective control of
the Company or any entity which is the majority shareholder of the
Company, or in the ownership of a substantial portion of the assets of the
Company or any entity which is the majority shareholder of the Company, as
such change is defined in Section 409A of the Code and regulations
thereunder.
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Section
1.3 of the Agreement shall be deleted in its entirety and replaced by the
following:
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1.3
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“Disability”
means the Executive: (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than twelve (12) months; or (ii)
is, by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months, receiving income
replacement benefits for a period of not less than three (3) months under
an accident and health plan covering employees or directors of the
Company. Medical determination of Disability may be made by
either the Social Security Administration or by the provider of an
accident or health plan covering employees or directors of the Company
provided that the definition of “disability” applied under such disability
insurance program complies with the requirements of the preceding
sentence. Upon the request of the plan administrator, the
Executive must submit proof to the plan administrator of the Social
Security Administration’s or the provider’s determination.
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Sections
2.4, 2.4.1 and 2.4.2 of the Agreement shall be deleted in their entirety and
replaced by the following:
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2.4
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Disability
Benefit. If the Executive experiences Disability prior
to Normal Retirement Age, the Bank shall distribute to the Executive the
benefit described in this Section 2.4 in lieu of any other benefit under
this Article.
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2.4.1
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Amount of
Benefit. The benefit under this Section 2.4 is the
Disability Annual Benefit set forth on Schedule A for the Plan Year ending
immediately prior to the date on which Disability first occurs, determined
by vesting the Executive in one hundred percent (100%) of the Benefit
Level set forth on Schedule A.
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2.4.2
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Distribution of
Benefit. The Company shall pay the annual benefit to the
Executive in twelve (12) equal monthly installments commencing on the
first day of the month following the first occurrence of
Disability. The annual benefit shall be distributed to the
Executive for eighteen (18) years.
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IN WITNESS OF THE ABOVE, the
Company and the Executive hereby consent to this Second Amendment.
Executive: XXXXXXXX
STATE BANK
/s/ Xxxxxxx X.
Xxxxxx
By /s/ Xxxxx X.
Xxxxx
XXXXXXX
X.
XXXXXX
Title Executive Vice
President
