AMENDMENT TO EXECUTIVE INCOME DEFERRED COMPENSATION AGREEMENT
EXHIBIT
10.34
AMENDMENT
TO EXECUTIVE INCOME DEFERRED COMPENSATION AGREEMENT
THIS
AMENDMENT TO EXECUTIVE INCOME DEFERRED COMPENSATION AGREEMENT (this
“Amendment”), made and entered into as of the 31st day of
December, 2008, by and between CommunityONE Bank, National Association, a
national banking corporation formerly known as First National Bank and Trust
Company (the “Bank”), and Xxxxxx Xxxxx Xxxxxxxx (“Executive”), amends the
Executive Income Deferred Compensation Agreement dated as of January 1, 1987, by
and between Richmond Federal Savings & Loan Association (the predecessor to
the Bank) and Executive, as amended by the amendment dated January 1, 1992 (the
“Executive Income Agreement”).
WHEREAS,
the parties desire to amend the Executive Income Agreement to bring it into
compliance with Section 409A of the Internal Revenue Code of 1986, as amended
from time to time (including corresponding provisions of succeeding law) (the
“Code”), and the regulations promulgated thereunder (“Section
409A”);
NOW,
THEREFORE, in consideration of the mutual promises of the parties and other good
and valuable consideration, and intending to be legally bound hereby, the
parties hereby agree as follows:
1. Amendment of Executive
Income Agreement.
The Executive Income Agreement is hereby amended as follows:
(a) The
following is added before the period at the end of the last sentence of Section
1.01: “, provided that such agreement does not cause a violation
under Section 409A of the Internal Revenue Code of 1986, as amended from time to
time (including corresponding provisions of succeeding law) (the “Code”), and
the regulations promulgated thereunder (“Section 409A”).”
(b) Section
1.02 is amended by replacing the reference to “Section 5.02” with “Section 4.04”
and by adding the following sentence immediately after the first sentence of
Section 1.02:
“Each
subsequent monthly payment after the first payment date shall be made on the
same date of the month as the first payment date, subject to any delay that may
be required by Section 12.05.”
(c) Section
4.04 is amended as follows:
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(i)
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By
deleting the second and third sentences of the first paragraph in their
entirety.
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(ii)
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By
deleting the second paragraph in its entirety and replacing it with the
following:
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“The
first payment date shall be the latter of (i) the Executive’s sixty-fifth
(65th)
birthday or (ii) subject to any delay that may be required by Section 12.05, the
first day of the month following the month in which the Executive has incurred a
“separation from service” within the meaning of Section 409A from the
Corporation and any
other entity that, along with the Corporation, would be considered a “service
recipient” within the meaning of Section 409A.”
(d) The
last sentence of Section 5.02(c) is deleted in its entirety.
(e) The
following new Section 12.05 is added to the Executive Income
Agreement:
“12.05 Code §
409A. To the extent any
payments under this Agreement are subject to Section 409A, it is the intent of
the parties that this Agreement and all such payments shall be made in
compliance with the requirements of Section 409A of the Code and the regulations
promulgated thereunder. If any provision of this Agreement shall not
be in compliance with Section 409A and the regulations thereunder and payment
pursuant to such provision is not otherwise exempt from Section 409A, then such
provision shall be deemed automatically amended without further action on the
part of the Corporation or the Executive to the minimum extent necessary to
cause such provision to be in compliance with Section 409A and such provision
will thereafter be given effect as so amended. Notwithstanding
anything herein to the contrary, if postponing payment of any amounts due under
this Agreement is necessary for compliance with the requirements of Section 409A
of the Code and the regulations thereunder to avoid adverse tax consequences to
the Executive, then payment of such amounts shall be postponed to comply with
Section 409A. Any and all payments that are postponed under this
Section 12.05 shall be paid to the Executive in a lump sum at the earliest time
that does not result in adverse tax consequences to the Executive under Section
409A.”
2. Entire
Agreement. The Executive Income Agreement as amended hereby
forms the entire agreement between the parties hereto with respect to the
subject matter contained in the Executive Income Agreement as amended
hereby. The Executive has no oral representations, understandings or
agreements with the Bank or any of its officers, directors or representatives
covering the same subject matter as the Executive Income Agreement as amended
hereby.
3. Effect of
Amendment. Except as amended by this Amendment, the Executive
Income Agreement shall remain in full force and effect and enforceable in
accordance with its terms as amended hereby.
[Signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date
first above written.
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COMMUNITYONE
BANK,
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NATIONAL
ASSOCIATION
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By
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/s/
Xxxxxxx X. Xxxxxx
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Xxxxxxx
X. Xxxxxx
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Chairman
and President
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/s/
Xxxxxx Xxxxx Xxxxxxxx
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(SEAL)
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Xxxxxx
Xxxxx Xxxxxxxx
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