EXHIBIT
10.5.2
THIRD AMENDMENT
TO THE
LOWCOUNTRY NATIONAL
BANK
EXECUTIVE DEFERRED COMPENSATION
AGREEMENT
FOR
GARY HORN
THIS THIRD AMENDMENT is adopted this 17th
day of December, 2008, effective as of January 1, 2009, by and
between CBC National Bank (formerly known as and currently doing
business as Lowcountry National Bank), a nationally-chartered
commercial bank with offices located in Beaufort, South Carolina
(the “Company”), and Gary Horn (the
“Executive”).
The Company and the Executive executed
the Executive Deferred Fee Agreement on January 22, 2004, which has
been amended twice since such date (the
“Agreement”).
The undersigned hereby amend the
Agreement for the purpose of bringing the Agreement into compliance
with the final regulations Section 409A of the Internal Revenue
Code. Therefore, the following changes shall be
made:
Section 1.1 of the Agreement shall be
deleted in its entirety and replaced by the
following:
1.1
“ Change of Control ”
means, with respect to the Company or Coastal Banking Company,
Inc., a “change in the ownership of a corporation” as
defined in Treasury Regulations Section
1.409A-3(i)(5)(v).
Section 1.11a of the Agreement shall
be deleted in its entirety and replaced by the
following:
1.11a
“ Specified Employee ”
means a key employee (as defined in Code Section 416(i) without
regard to Code Section 416(i)(5)) of any member of the Service
Recipient, any stock of which is publicly traded on an established
securities market or otherwise as of the date of the
Executive’s Termination of Employment. For this purpose, a
Executive is a key employee if the Executive meets the requirements
of Code Section 416(i)(1)(A)(i), (ii), or (iii) (applied in
accordance with the regulations thereunder and disregarding Code
Section 416(i)(5)) at any time during the twelve (12) month period
ending on December 31. Notwithstanding the foregoing, if the
Executive is a key employee determined under the preceding
sentence, the Executive will be deemed to be a Specified Employee
for the period commencing as of April 1 following such December 31
and through the succeeding March 31 or as otherwise required by
Code Section 409A.
LOWCOUNTRY NATIONAL
BANK
Executive Deferred
Compensation Agreement
The following Section 1.11b shall be
added to the Agreement immediately following Section
1.11a
1.11b
“ Service Recipient ”
means the Company and each business entity that, together with the
Company, constitutes the “service recipient” as defined
in Code Section 409A and the regulations thereunder.
Section 1.12 of the Agreement shall be
deleted in its entirety and replaced by the
following:
1.12
“ Termination of Employment
” means the termination of the service relationship between a
Executive and the Service Recipient for any reason which
constitutes a “separation from service” under Code
Section 409A. Notwithstanding the foregoing, the service
relationship between a Executive and the Service Recipient is
considered to remain intact while the Executive is on military
leave, sick leave or other bona fide leave of absence if there is a
reasonable expectation that the Executive will return to perform
services for the Service Recipient and the period of such leave
does not exceed six months, or if longer, so long as the individual
retains a right to return to service with the Service Recipient
under applicable law or contract. Whether the Executive has
terminated his service relationship with the Service Recipient will
be determined by the Service Recipient based on whether it is
reasonably anticipated by the Service Recipient and the Executive
that the Executive will permanently cease providing services to the
Service Recipient or that the services to be performed by the
Executive will permanently decrease to no more than 20% of the
average level of bona fide services performed as a Executive over
the immediately preceding 36-month period or such shorter period
during which the Executive was performing services for the Service
Recipient. If a leave of absence occurs during such 36-month
or shorter period which is not considered a Termination of
Employment, unpaid leaves of absence shall be disregarded and the
level of services provided during any paid leave of absence shall
be presumed to be the level of services required to receive the
compensation paid with respect to such leave of absence.
Section 1.15 of the Agreement shall be
deleted in its entirety and replaced by the
following:
1.15
“ Unforeseeable Emergency
” mea
