Exhibit 10.9
AMENDMENT TO THE
BANCFIRST CORPORATION EMPLOYEE
STOCK OWNERSHIP PLAN
TO COMPLY WITH
CODE SECTION 415
REGULATIONS
ARTICLE I
PREAMBLE
1.1 Authority to Amend.
BancFirst Corporation (the “Employer”) pursuant to the
terms of the BancFirst Corporation Employee Stock Ownership Plan
(the “Plan”) hereby amends the Plan’s governing
document (the “Plan Document”) pursuant to its
authority as set forth in Section 10.1 of the Plan
Document.
1.2 Purpose of Amendment. The
purpose of this amendment is to cause the Plan to comply with Final
Regulations published under section 415 of the Internal Revenue
Code.
1.3 Effective date of
Amendment. This Amendment is effective for Plan Years beginning
after July 1, 2007.
1.4 Superseding of inconsistent
provisions. This Amendment supersedes the provisions of the
Plan to the extent those provisions are inconsistent with the
provisions of this Amendment. Except as expressly set forth herein,
the Plan Document is ratified in all respects.
ARTICLE II
FINAL SECTION 415
REGULATIONS
2.1 Effective date. The
provisions of this Article II shall apply to limitation years
beginning on and after July 1, 2007.
2.2 Actual Compensation paid
after severance from employment. Actual Compensation shall be
adjusted, as set forth herein, for the following types of
compensation paid after a Participant’s severance from
employment with the Employer maintaining the Plan (or any other
entity that is treated as the Employer pursuant to Code §
414(b), (c), (m) or (o)). However, amounts described in
subsections (a) and (b) below may only be included in
Actual Compensation to the extent such amounts are paid by the
later of 2 1 / 2
months after severance from
employment or by the end of the limitation year that includes the
date of such severance from employment. Any other payment of
compensation paid after severance of employment that is not
described in the following types of compensation is not considered
Actual Compensation within the meaning of Code § 415(c)(3),
even if payment is made within the time period specified
above.
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(a)
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Regular
pay. Actual Compensation
shall include regular pay after severance of employment
if:
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(1) The payment is regular
compensation for services during the participant’s regular
working hours, or compensation for services outside the
participant’s regular working hours (such as overtime or
shift differential), commissions, bonuses, or other similar
payments; and
(2) The payment would have been paid
to the participant prior to a severance from employment if the
participant had continued in employment with the
Employer.
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(b)
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Leave
cashouts and deferred compensation. Leave cashouts shall not be included in Actual
Compensation. Further, deferred compensation shall not be included
in Actual Compensation.
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(c)
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Salary
continuation payments for military service participants.
Actual Compensation does not
include payments to an individual who does not currently perform
services for the Employer by reason of qualified military service
(as that term is used in Code § 414(u)(1)) to the extent those
payments do not exceed the amounts the individual would have
received if the individual had continued to perform services for
the Employer rather than entering qualified military
service.
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(d)
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Salary
continuation payments for disabled Participants.
Actual Compensation does not include
compensation paid to a participant who is permanently and totally
disabled (as defined in Code § 22(e)(3)).
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2.3 Administrative delay
(“the first few weeks”) rule. Actual Compensation
for a limitation year shall not include amounts earned but not paid
during the limitation year solely because of the timing of pay
periods and pay dates.
2.4 Inclusion of certain
nonqualified deferred compensation amounts. If the Plan’s
definition of Compensation for purposes of Code § 415 is the
definition in Regulation Section 1.415(c)-2(b) (Regulation
Section 1.415-2(d)(2) under the Regulations in effect for
limitation years beginning prior to July 1, 2007) and the
simplified compensation definition of Regulation 1.415(c)-2(d)(2)
(Regulation Section 1.415-2(d)(10) under the Regulations in
effect for limitation years prior to July 1, 2007) is not
used, then Actual Compensation shall include amounts that are
includible in the gross income of a Participant under the rules of
Code § 409A or Code § 457(f)(1)(A) or because the
amounts are constructively received by the Participant.
2.5 Definition of annual
additions. The Plan’s definition of “annual
additions” is modified as follows:
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(e)
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Restorative
payments. Annual
additions for purposes of Code § 415 shall not include
restorative payments. A restorative payment is a payment made to
restore losses to a Plan resulting from actions by a fiduciary for
which there is reasonable risk of liability for breach of a
fiduciary duty under federal or state law, where participants who
are similarly situated are treated similarly with respect to the
payments.
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