EXHIBIT 10.4.2
FORM OF AMENDMENT
TO DIRECTOR DEFERRED FEE AGREEMENTS WITH DENNIS O. GREEN AND JAMES
W. HOLDEN, JR.
LOWCOUNTRY NATIONAL
BANK
Director Deferred Fee
Agreement
THIRD AMENDMENT
TO THE
LOWCOUNTRY NATIONAL
BANK
DIRECTOR DEFERRED FEE
AGREEMENT
FOR
[NAME]
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 _______________ (the
“Director”).
The Company and the Director executed the
Director Deferred Fee Agreement on January 26, 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, including the transition rules under IRS Notice 2007-86.
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, a “change in the
ownership of a corporation” as defined in Treasury
Regulations Section 1.409A-3(i)(5)(v).
Section 1.12a of the Agreement shall
be deleted in its entirety and replaced by the
following:
1.12a
“ 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
Director’s Termination of Service. For this purpose, a
Director is a key employee if the Director 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
Director is a key employee determined under the preceding sentence,
the Director 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.
ANNEX D - 1
LOWCOUNTRY NATIONAL
BANK
Director Deferred Fee
Agreement
The following Section 1.12b shall be
added to the Agreement immediately following Section
1.12a:
1.12b
“ 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 1.13 of the Agreement shall be
deleted in its entirety and replaced by the
following:
1.13
“ Termination of Service
” means the termination of the service relationship between a
Director 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 Director and the Service Recipient is considered to
remain intact while the Director is on military leave, sick leave
or other bona fide leave of absence if there is a reasonable
expectation that the Director 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 Director retains a right
to return to service with the Service Recipient under applicable
law or contract. If the Director is also an employee of the
Company or other member of the Service Recipient, the termination
of such employment will not constitute a Termination of Service if
the Director continues to serve as a director of the Company or
other member of the Service Recipient, and the average level of
bona fide services performed as an employee shall not be considered
in determining whether a Termination from Service has
occurred.
Section 1.14 of the Agreement shall be
deleted in its entirety and replaced by the
following:
1.14
“ Unforeseeable Emergency
” means a severe financial hardship of the Director, the
Director’s spouse, the Director’s beneficiary, or the
Director’s dependent (as defined in Code Section 152, without
regard to Code Sections 152(b)(1), (b)(2), and (d)(1)(B)); loss of
the Director’s property due to casualty (including the need
to rebuild a home following damage to a home not otherwise covered
by insurance); or other similar extraordinary and unforeseeable
circumstanc
