Exhibit 10.19A
FIRST AMENDMENT
TO THE
FIRST UNITED SECURITY
BANK
DIRECTOR RETIREMENT
AGREEMENT
DATED OCTOBER 17,
2002
FOR
J.C. STANLEY
THIS FIRST AMENDMENT is adopted this
20th day of November, 2008, effective as of January 1, 2005,
by and among United Security Bancshares, Inc., a Delaware
corporation (“USB”), First United Security Bank, a
state-chartered commercial bank located in Thomasville, Alabama
(“FUSB”) (USB and FUSB collectively are referred to
herein as the “Company”), and J.C. STANLEY (the
“Director”).
The Company and the Director
executed the First United Security Bank Director Retirement
Agreement on October 17, 2002, effective as of
September 1, 2002 (the “Agreement”).
The undersigned hereby amend the
Agreement for the purpose of bringing the Agreement into compliance
with Section 409A of the Internal Revenue Code. Therefore, the
following changes shall be made:
1. Section 1.8 of the
Agreement shall be deleted in its entirety.
2. The following
Section 1.11a shall be added to the Agreement immediately
following Section 1.11:
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1.11a
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“
Specified Employee ” means a key employee (as defined
in Section 416(i) of the Code without regard to paragraph 5
thereof) of USB if any stock of USB is publicly traded on an
established securities market or otherwise. A Specified Employee
shall be specifically defined and determined in accordance with
Section 409A of the Code and any and all Treasury regulations
and guidance promulgated thereunder.
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3. Section 1.13 of the
Agreement shall be deleted in its entirety and replaced by the
following:
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1.13
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“
Termination of Service ” means the termination of the
Director’s service with the Company for reasons other than
death. Whether a Termination of Service takes place is determined
based on the facts and circumstances surrounding the termination of
the Director’s service and whether the Company and the
Director intended for the Director to provide significant services
for the Company following such termination. Notwithstanding the
foregoing, a determination of whether a Termination of Service has
occurred shall be made in accordance with Section 409A of the
Code and any and all Treasury regulations and guidance promulgated
thereunder.
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4. The following Section 1.13a shall be
added to the Agreement immediately following
Section 1.13:
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1.13a
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“
Unforeseeable Emergency ” means a severe financial
hardship to the Director resulting from an illness or accident of
the Director, the Director’s spouse, the Director’s
beneficiary, or the Director’s dependent (as defined in
Section 152 of the Code without regard to
Section 152(b)(1), (b)(2), and (d)(1)(B)), loss of the
Director’s property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Director as defined in
Section 409A of the Code and any and all Treasury regulations
and guidance promulgated thereunder.
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5. The following Sections 2.5,
2.6 and 2.7 shall be added to the Agreement immediately following
Section 2.4.2:
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2.5
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Restriction
on Timing of Distributions . Notwithstanding any provision of the
Agreement to the contrary, if the Director is considered a
Specified Employee at Termination of Service under such procedures
as established by USB in accordance with Section 409A of the
Code, benefit distributions that are made upon Termination of
Service may not commence earlier than six (6) months after the
date of such Termination of Service. Therefore, in the event
this Section 2.5 is applicable to the Director, any
distribution which would otherwise be paid to the Director within
the first six (6) months following the Termination of Service
shall be accumulated and paid to the Director in a lump sum on the
first day of the seventh month following the Termination of
Service. All subsequent distributions shall be paid in the manner
specified.
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2.6
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Distributions Upon Income Inclusion Under
Section 409A of the Code . Upon the inclusion of any amount in the
Director’s income as a result of the failure of the Agreement
to comply with the requirements of Section 409A of the Code,
to the extent such tax liability can be covered by the amount the
Company has accrued with respect to the Company’s obligations
hereunder, a distribution shall be made as soon as is
administratively practicable following the discovery of such
failure.
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2.7
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Change in
Form or Timing of Distributions . All changes in the form or timing of
distributions hereunder must comply with the following
requirements. The changes:
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(a)
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may not
accelerate the time or schedule of any distribution, except as
provided in Section 409A of the Code and any and all Treasury
regulations and guidance promulgated thereunder;
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(b)
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must, for
benefits distributable under Sections 2.2, 2.3 and 2.4, be made at
least twelve (12) months prior to the first scheduled
distribution;
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(c)
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must, for
benefits distributable under Sections 2.1, 2.2, 2.3 and 2.4, delay
the commencement of distributions for a minimum of five
(5) years from the date the first distribution was originally
scheduled to be made; and
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(d)
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must take
effect not less than twelve (12) months after the election is
made.
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6. Article 7 of the Agreement
shall be deleted in its entirety and replaced by the
following:
Article 7
Amendments and
Termination
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7.1
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Amendments . This Agreement may be amended only by a
written agreement signed by the Company (and approved by the Board)
and the Director. However, the Company may amend this Agreement to
conform with written directives to the Company from its auditors or
banking regulators or to c
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