Exhibit 10.19
409A Amendment
to
The East Carolina
Bank
Executive Supplemental Retirement
Plan Executive Agreement for
Thomas O. Davis
The East Carolina Bank
(“Bank”) and Thomas O. Davis (“Executive”)
originally entered into The East Carolina Bank Executive
Supplemental Retirement Plan Executive Agreement
(“Agreement”) on February 13, 2002, which was
subsequently amended on December 9, 2003. Pursuant to
Subparagraph V (C) of the Agreement, the Bank and the
Executive hereby adopt this 409A Amendment, effective
January 1, 2005.
RECITALS
This Amendment is intended to bring
the Agreement into compliance with the requirements of Internal
Revenue Code Section 409A. Accordingly, the intent of the
parties hereto is that the Agreement shall be operated and
interpreted consistent with the requirements of Section 409A.
Therefore, the following changes shall be made:
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1.
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Subparagraph I
(D), “Termination of Service”, shall be amended to
delete the words “Early Retirement Date (Subparagraph I
[K])” and to replace them with the words “Executive
attaining age fifty-nine and one-half (59 1/2)”.
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2.
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Subparagraph I
(H), “Change of Control”, shall be deleted in its
entirety and replaced with the following Subparagraph I
(H):
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Change in Control:
“Change in Control”
shall mean a change in ownership or control of the Bank as defined
in Treasury Regulation §1.409A-3(i)(5) or any subsequently
applicable Treasury Regulation.
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3.
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The following
provision regarding “Separation from Service”
distributions shall be added as a new subparagraph (L) under
Section I, as follows:
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Separation from
Service:
Notwithstanding anything to the
contrary in this Agreement, to the extent that any benefit under
this Agreement is payable upon a “Termination of
Employment,” “Termination of Service,” or other
event involving the Executive’s cessation of services, such
payment(s) shall not be made unless such event constitutes a
“Separation from Service” as defined in Treasury
Regulations Section 1.409A-1(h).
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4.
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Subparagraph II
(A), “Retirement Benefits”, shall be amended to insert
the word “quarterly” after the word “paid”
in the third sentence.
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5.
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Subparagraph II
(B), “Termination of Service”, shall be amended to
delete the words “Normal Retirement Age (Subparagraph I
[I])” from the second sentence and to replace them with the
word “termination”; and to insert the word
“quarterly” after the word “paid” in the
third sentence.
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6.
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Subparagraph II
(C), “Death”, shall be amended to insert the following
sentence at the end of the Subparagraph:
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Said payment due hereunder shall be
made on the first day of the second month following the death of
the Executive.
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7.
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Subparagraph II
(E), “Disability Benefit”, shall be amended to delete
the second paragraph in its entirety and to replace it with the
following paragraph:
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“Disability” shall mean
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
