Exhibit 10(d)
PROVIDENT COMMUNITY BANK, NATIONAL ASSOCIATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN #2
THIS SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN #2 (the "Agreement") is
adopted this 1st day of January, 2007, by and between Provident Community
Bank, National Association, a nationally-chartered commercial bank located in
Union, South Carolina (the "Bank"), and Richard H. Flake (the "Executive").
The purpose of this Agreement is to provide specified benefits to the
Executive, a member of a select group of management or highly compensated
employees who contribute materially to the continued growth, development and
future business success of the Bank. This Agreement shall be unfunded for tax
purposes and for purposes of Title I of the Employee Retirement Income Security
Act of 1974 ("ERISA"), as amended from time to time.
Article 1 Definitions
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Accrual Balance" means the liability that should be accrued by the
Bank, under Generally Accepted Accounting Principles ("GAAP"), for the
Bank's obligation to the Executive under this Agreement, by applying
Accounting Principles Board Opinion Number 12 ("APB 12") as amended by
Statement of Financial Accounting Standards Number 106 ("FAS 106") and
the Discount Rate. Any one of a variety of amortization methods may be
used to determine the Accrual Balance. However, once chosen, the method
must be consistently applied.
1.2 "Beneficiary" means each designated person or entity, or the estate of
the deceased Executive, entitled to any benefits upon the death of the
Executive pursuant to Article 4.
1.3 "Beneficiary Designation Form" means the form established from time to
time by the Plan Administrator that the Executive completes, signs and
returns to the Plan Administrator to designate one or more
Beneficiaries.
1.4 "Board" means the Board of Directors of the Bank as from time to time
constituted.
1.5 "Change in Control" means an event deemed to occur if and when (a) an
offeror other than the Company purchases shares of the common stock of
the Company or the Bank pursuant to a tender or exchange offer for such
shares, (b) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934) is or becomes the
beneficial owner, directly or indirectly, of securities of the Company
or the Bank representing twenty five percent (25%) or more of the
combined voting power of the Company's of the Bank's then outstanding
securities, (c) the membership of the board of directors of the Company
or the Bank changes as the result of a contested election, such that
individuals who were directors at the beginning of any twenty-four
(24) month period (whether commencing before or after the date of
adoption of this Agreement) do not constitute a majority of the Board
at the end of such period, or (d) shareholders of the Company or the
Bank approve a merger, consolidation, sale or disposition of all or
substantially all of the Company's or Bank's assets, or a plan of
partial or complete liquidation.
1.6 "Code" means the Internal Revenue Code of 1986, as amended, and all
regulations and guidance thereunder, including such regulations and
guidance as may be promulgated after the Effective Date of this
Agreement.
1.7 "Company" means Union Financial Bancshares, Inc., a Delaware
corporation.
1.8 "Disability" means the Executive suffering a sickness, accident or
injury which has been determined by the carrier of any individual or
group disability insurance policy covering the Executive, or by the
Social Security Administration, to be a disability rendering the
Executive totally and permanently disabled. The Executive must submit
proof to the Bank of the carrier's or Social Security Administration's
determination upon the request of the Bank.
1.9 "Discount Rate" means the rate used by the Plan Administrator for
determining the Accrual Balance. The initial Discount Rate is six
percent (6%). However, the Plan Administrator, in its discretion, may
adjust the Discount Rate to maintain the rate within reasonable
standards according to GAAP and/or applicable bank regulatory guidance.
1.10 "Early Retirement" means Separation from Service before Normal
Retirement Age except when such Separation from Service occurs: (i)
following a Change in Control; or (ii) due to death, Disability or
Termination for Cause.
1.11 "Effective Date" means January 1, 2007.
1.12 "Normal Retirement Age" means the Executive attaining age sixty-five
(65).
1.13 "Normal Retirement Date" means the later of Normal Retirement Age or
Separation from Service.
1.14 "Plan Administrator" means the Board or such committee or person as
the Board shall appoint.
1.15 "Plan Year" means each twelve (12) month period commencing on October 1
and ending on September 30 of each year. The initial Plan Year shall
commence on the Effective Date of this Agreement and end on the
following September 30.
1.16 "Separation from Service" means the termination of the Executive's
employment with the Bank for reasons other than death. Whether a
Separation from Service takes place is determined based on the facts and
circumstances surrounding the termination of the Executive's employment
and whether the Bank and the Executive intended for the Executive to
provide significant services for the Bank following such termination.
A termination of employment will not be considered a Separation from
Service if:
(a) the Executive continues to provide services as an employee of the
Bank at an annual rate that is twenty percent (20%) or more of
the services rendered, on average, during the immediately
preceding three full calendar years of employment (or, if
employed less than three years, such lesser period) and the
annual remuneration for such services is twenty percent (20%) or
more of the average annual remuneration earned during the final
three full calendar years of employment (or, if less, such lesser
period), or
(b) the Executive continues to provide services to the Bank in a
capacity other than as an employee of the Bank at an annual rate
that is fifty percent (50%) or more of the services rendered, on
average, during the immediately preceding three full calendar
years of employment (or if employed less than three years, such
lesser period) and the annual remuneration for such services is
fifty percent (50%) or more of the average annual remuneration
earned during the final three full calendar years of employment
(or if less, such lesser period).
1.17 "Specified Employee" a key employee (as defined in Section 416(i) of the
Code without regard to paragraph 5 thereof) of the Bank if any stock of
the Bank is publicly traded on an established securities market or
otherwise.
1.18 "Termination for Cause" shall have the meaning set forth in Article 5.
Article 2
Distributions During Lifetime
2.1 Normal Retirement Benefit. Upon the Normal Retirement Date, the Bank
shall distribute to the Executive the benefit described in this Section
2.1 in lieu of any other benefit under this Article.
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1
is Thirty Two Thousand Five Hundred Dollars ($32,500).
2.1.2 Distribution of Benefit. The Bank shall distribute the annual
benefit to the Executive in twelve (12) equal monthly
installments commencing on the first day of the month
following Normal Retirement Date. The annual benefit shall be
distributed to the Executive for twenty (20) years.
2.2 Early Retirement Benefit. If Early Retirement occurs, the Bank shall
distribute to the Executive the benefit described in this Section 2.2 in
lieu of any other benefit under this Article.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the
Normal Retirement Benefit multiplied by the applicable
vesting amount. This benefit is determined by vesting the
Executive in ten percent (10%) of the Normal Retirement
Benefit for the first Plan Year, and an additional ten
percent (10%) of said amount for each succeeding year
thereafter. Upon the Executive reaching Normal Retirement
Age, the Executive becomes one hundred percent (100%) vested
in the Normal Retirement Benefit.
2.2.2 Distribution of Benefit. The Bank shall distribute the annual
benefit to the Executive in twelve (12) equal monthly
installments commencing on the first day of the month
following Normal Retirement Age. The annual benefit shall be
distributed to the Executive for twenty (20) years.
2.3 Disability Benefit. If the Executive experiences a Disability which
results in a Separation from Service prior to Normal Retirement Age, the
Bank shall distribute to the Executive the benefit described in this
Section 2.3 in lieu of any other benefit under this Article.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is one
hundred percent (100%) of the Accrual Balance determined as of
the end of the Plan Year preceding Separation from Service.
2.3.2 Distribution of Benefit. The Bank shall distribute the annual
benefit to the Executive in twelve (12) equal monthly
installments commencing on the first day of the month
following Separation from Service. The annual benefit shall be
distributed to the Executive for twenty (20) years. During the
applicable installment period, interest will be applied to the
Accrual Balance at the Discount Rate in effect at Separation
from Service, compounded monthly.
2.4 Change in Control Benefit. If a Change in Control occurs followed by a
Separation from Service, the Bank shall distribute to the Executive the
benefit described in this Section 2.4 in lieu of any other benefit
under this Article.
2.4.1 Amount of Benefit. The benefit under this Section 2.4 is one
hundred percent (100%) of the Normal Retirement Benefit
amount described in Section 2.1.1.
2.4.2 Distribution of Benefit. The Bank shall distribute the annual
benefit to the Executive in twelve (12) equal monthly
installments commencing on the first day of the month
following Normal Retirement Age. The annual benefit shall be
distributed to the Executive for twenty (20) years.
2.5 Restriction on Timing of Distribution. Notwithstanding any provision of
this Agreement to the contrary, if the Executive is considered a
Specified Employee at Separation from Service under such procedures as
established by the Bank in accordance with Section 409A of the Code,
benefit distributions that are made upon Separation from Service may
not commence earlier than six (6) months after the date of such
Separation from Service. Therefore, in the event this Section 2.5 is
applicable to the Executive, any distribution which would otherwise be
paid to the Executive within the first six months following the
Separation from Service shall be accumulated and paid to the Executive
in a lump sum on the first day of the seventh month following the date
of Separation from Service. All subsequent distributions shall be paid
in the manner specified.
2.6 Distributions Upon Income Inclusion Under Code Section 409A. Upon the
inclusion of any amount into the Executive's income as a result of the
failure of this non-qualified deferred compensation plan to comply with
the requirements of Section 409A of the Code, to the extent such tax
liability can be covered by the Executive's Accrual Balance, a
distribution shall be made as soon as is administratively practicable
following the discovery of the plan failure.
2.7 Change in Form or Timing of Distributions. For distribution of benefits
under this Article 2, the Executive and the Bank may, subject to the
terms of Section 8.1, amend the Agreement to delay the timing or change
the form of distributions. Any such amendment:
(a) may not accelerate the time or schedule of any distribution,
except as provided in Code Section 409A and the regulations
thereunder;
(b) must, for benefits distributable under Sections 2.2 and 2.4
be made at least twelve (12) months prior to the first
scheduled distribution;
(c) must, for benefits distributable under Article 2 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
(d) must take effect not less than twelve (12) months after the
amendment is made.
Article 3
Distribution at Death
3.1 Death During Active Service. If the Executive dies prior to Separation
from Service, the Bank shall distribute to the Beneficiary the benefit
described in this Section 3.1. This benefit shall be distributed in lieu
of any benefits under Article 2.
3.1.1 Amount of Benefit. The benefit under this Section 3.1 is the
Normal Retirement Benefit in Section 2.1.1.
3.1.2 Distribution of Benefit. The Bank shall distribute the annual
benefit to the Beneficiary in twelve (12) equal monthly
installments for twenty (20) years commencing within sixty (60)
days following receipt by the Bank of the Executive's death
certificate.
3.2 Death During Distribution of a Benefit. If the Executive dies after any
benefit distributions have commenced under this Agreement but before
receiving all such distributions, the Bank shall distribute to the
Beneficiary the remaining benefits at the same time and in the same
amounts they would have been distributed to the Executive had the
Executive survived.
3.3 Death After Early Retirement. If the Executive dies after Separation
from Service for Early Retirement under Section 2.2 but prior to
commencement of benefit payments under this Agreement, the Bank shall
pay to the Beneficiary the benefit described in Section 3.3.
3.3.1 Amount of Benefit. The benefit under this Section 3.3 is the
lifetime benefits that would have been paid to the Executive
under Section 2.2.
3.3.2 Payment of Benefit. The Bank shall distribute the annual
benefit to the Beneficiary in twelve (12) equal monthly
installments commencing on the first day of the month
following the Executive's death. The annual benefit shall be
distributed to the Executive for twenty (20) years.
Article 4
Beneficiaries
4.1 In General. The Executive shall have the right, at any time, to
designate a Beneficiary to receive any benefit distributions under this
Agreement upon the death of the Executive. The Beneficiary designated
under this Agreement may be the same as or different from the
beneficiary designation under any other plan of the Bank in which the
Executive participates.
4.2 Designation. The Executive shall designate a Beneficiary by completing
and signing the Beneficiary Designation Form and delivering it to the
Plan Administrator or its designated agent. If the Executive names
someone other than the Executive's spouse as a Beneficiary, the Plan
Administrator may, in its sole discretion, determine that spousal
consent is required to be provided in a form designated by the Plan
Administrator, executed by the Executive's spouse and returned to the
Plan Administrator. The Executive's beneficiary designation shall be
deemed automatically revoked if the Beneficiary predeceases the
Executive or if the Executive names a spouse as Beneficiary and the
marriage is subsequently dissolved. The Executive shall have the right
to change a Beneficiary by completing, signing and otherwise complying
with the terms of the Beneficiary Designation Form and the Plan
Administrator's rules and procedures. Upon the acceptance by the Plan
Administrator of a new Beneficiary Designation Form, all Beneficiary
designations previously filed shall be cancelled. The Plan
Administrator shall be entitled to rely on the last Beneficiary
Designation Form filed by the Executive and accepted by the Plan
Administrator prior to the Executive's death.
4.3 Acknowledgment. No designation or change in designation of a
Beneficiary shall be effective until received, accepted and
acknowledged in writing by the Plan Administrator or its designated
agent.
4.4 No Beneficiary Designation. If the Executive dies without a valid
beneficiary designation, or if all designated Beneficiaries predecease
the Executive, then the Executive's spouse shall be the designated
Beneficiary. If the Executive has no surviving spouse, any benefits
shall be paid to the Executive's estate.
4.5 Facility of Distribution. If the Plan Administrator determines in its
discretion that a benefit is to be distributed to a minor, to a person
declared incompetent, or to a person incapable of handling the
disposition of that person's property, the Plan Administrator may
direct distribution of such benefit to the guardian, legal
representative or person having the care or custody of such minor,
incompetent person or incapable person. The Plan Administrator may
require proof of incompetence, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Any distribution of a
benefit shall be a distribution for the account of the Executive and
the Beneficiary, as the case may be, and shall be completely discharge
of any liability under the Agreement for such distribution amount.
Article 5
General Limitations
Notwithstanding any provisions of this Agreement to the contrary, the
Bank shall not pay any benefit under this Agreement:
5.1 Termination for Cause. If the Bank terminates the Executive's
employment for:
(a) Gross negligence or gross neglect of duties to the Bank; or
(b) Conviction of a felony or of a gross misdemeanor involving moral
turpitude in connection with the Executive's employment with the Bank;
or
(c) Fraud, disloyalty, dishonesty or willful violation of any law or
significant Bank policy committed in connection with the Executive's
employment and resulting in a material adverse effect on the Bank.
5.2 Suicide or Misstatement. No benefit shall be distributed if the
Executive commits suicide within two (2) years after the Effective Date
of this Agreement, or if an insurance company which issued a life
insurance policy covering the Executive and owned by the Bank denies
coverage (i) for material misstatements of fact made by the Executive
on an application for such life insurance, or (ii) for any other
reason.
5.3 Removal. Notwithstanding any provision of this Agreement to the
contrary, the Bank shall not distribute any benefit under this
Agreement if the Executive is subject to a final removal or prohibition
order issued by an appropriate federal banking agency pursuant to
Section 8(e) of the Federal Deposit Insurance Act.
Article 6
Claims And Review Procedures
6.1 Claims Procedure. An Executive or Beneficiary ("claimant") who has not
received benefits under the Agreement that he or she believes should
be distributed shall make a claim for such benefits as follows:
6.1.1 Initiation - Written Claim. The claimant initiates a claim by
submitting to the Plan Administrator a written claim for the
benefits. If such a claim relates to the contents of a
notice received by the claimant, the claim must be made
within sixty (60) days after such notice was received by the
claimant. All other claims must be made within one hundred
eighty (180) days of the date on which the event that caused
the claim to arise occurred. The claim must state with
particularity the determination desired by the claimant.
6.1.2 Timing of Plan Administrator Response. The Plan Administrator
shall respond to such claimant within ninety (90) days after
receiving the claim. If the Plan Administrator determines that
special circumstances require additional time for processing
the claim, the Plan Administrator can extend the response
period by an additional ninety (90) days by notifying the
claimant in writing, prior to the end of the initial ninety
(90) day period that an additional period is required. The
notice of extension must set forth the special circumstances
and the date by which the Plan Administrator expects to render
its decision.
6.1.3 Notice of Decision. If the Plan Administrator denies part or
the entire claim, the Plan Administrator shall notify the
claimant in writing of such denial. The Plan Administrator
shall write the notification in a manner calculated to be
understood by the claimant. The notification shall set forth:
(a) The specific reasons for the denial;
(b) A reference to the specific provisions of the Agreement
on which the denial is based;
(c) A description of any additional information or material
necessary for the claimant to perfect the claim and an
explanation of why it is needed;
(d) An explanation of the Agreement's review procedures and
the time limits applicable to such procedures; and
(e) A statement of the claimant's right to bring a civil
action under ERISA Section 502(a) following an adverse
benefit determination on review.
6.2 Review Procedure. If the Plan Administrator denies part or the entire
claim, the claimant shall have the opportunity for a full and fair
review by the Plan Administrator of the denial as follows:
6.2.1 Initiation - Written Request. To initiate the review, the
claimant, within sixty (60) days after receiving the Plan
Administrator's notice of denial, must file with the Plan
Administrator a written request for review.
6.2.2 Additional Submissions - Information Access. The claimant shall
then have the opportunity to submit written comments,
documents, records and other information relating to the claim.
The Plan Administrator shall also provide the claimant, upon
request and free of charge, reasonable access to, and copies
of, all documents, records and other information relevant (as
defined in applicable ERISA regulations) to the claimant's
claim for benefits.
6.2.3 Considerations on Review. In considering the review, the Plan
Administrator shall take into account all materials and
information the claimant submits relating to the claim, without
regard to whether such information was submitted or considered
in the initial benefit determination.
6.2.4 Timing of Plan Administrator Response. The Plan Administrator
shall respond in writing to such claimant within sixty (60)
days after receiving the request for review. If the Plan
Administrator determines that special circumstances require
additional time for processing the claim, the Plan
Administrator can extend the response period by an additional
sixty (60) days by notifying the claimant in writing, prior to
the end of the initial sixty (60) day period that an additional
period is required. The notice of extension must set forth the
special circumstances and the date by which the Plan
Administrator expects to render its decision.
6.2.5 Notice of Decision. The Plan Administrator shall notify the
claimant in writing of its decision on review. The Plan
Administrator shall write the notification in a manner
calculated to be understood by the claimant. The notification
shall set forth:
(a) The specific reasons for the denial;
(b) A reference to the specific provisions of the Agreement
on which the denial is based;
(c) A statement that the claimant is entitled to receive,
upon request and free of charge, reasonable access to,
and copies of, all documents, records and other
information relevant (as defined in applicable ERISA
regulations) to the claimant's claim for benefits; and
(d) A statement of the claimant's right to bring a civil
action under ERISA Section 502(a).
Article 7
Amendments and Termination
7.1 Amendments. This Agreement may be amended only by a written agreement
signed by the Bank and the Executive. However, the Bank may unilaterally
amend this Agreement to conform with written directives to the Bank from
its auditors or banking regulators or to comply with legislative or tax
law, including without limitation Code Section 409A of the Code and any
and all regulations and guidance promulgated thereunder.
7.2 Plan Termination Generally. The Bank may unilaterally terminate this
Agreement at any time. Except as provided in Section 7.3, the
termination of this Agreement shall not cause a distribution of benefits
under this Agreement. Rather, upon such termination benefit
distributions will be made at the earliest distribution event permitted
under Article 2 or Article 3.
7.3 Plan Terminations Under Code Section 409A. Notwithstanding anything to
the contrary in Section 7.2, if the Bank terminates this Agreement in
the following circumstances:
(a) Within thirty (30) days before or twelve (12) months after a
change in the ownership or effective control of the corporation,
or in the ownership of a substantial portion of the assets of the
corporation as described in Section 409A(2)(A)(v) of the Code,
provided that all distributions are made no later than twelve
(12) months following such termination of the Agreement and
further provided that all the Bank's arrangements which are
substantially similar to the Agreement are terminated so the
Executive and all participants in the similar arrangements are
required to receive all amounts of compensation deferred under
the terminated arrangements within twelve (12) months of such
terminations;
(b) Upon the Bank's dissolution or with the approval of a bankruptcy
court provided that the amounts deferred under the Agreement are
included in the Executive's gross income in the latest of (i) the
calendar year in which the Agreement terminates; (ii) the
calendar year in which the amount is no longer subject to a
substantial risk of forfeiture; or (iii) the first calendar year
in which the distribution is administratively practical; or
(c) Upon the Bank's termination of this and all other non-account
balance plans (as referenced in Code Section 409A of the Code or
the regulations thereunder), provided that all distributions are
made no earlier than twelve (12) months and no later than
twenty-four (24) months following such termination, and the Bank
does not adopt any new non-account balance plans for a minimum of
five (5) years following the date of such termination;
the Bank may distribute the Accrual Balance, determined as of the date
of the termination of the Agreement, to the Executive in a lump sum
subject to the above terms.
Article 8
Administration of Agreement
8.1 Plan Administrator Duties. The Plan Administrator shall administer this
Agreement according to its express terms and shall also have the
discretion and authority to (i) make, amend, interpret and enforce all
appropriate rules and regulations for the administration of this
Agreement and (ii) decide or resolve any and all questions, including
interpretations of this Agreement, as may arise in connection with the
Agreement to the extent the exercise of such discretion and authority
does not conflict with Code Section 409A.
8.2 Agents. In the administration of this Agreement, the Plan Administrator
may employ agents and delegate to them such administrative duties as it
sees fit, including acting through a duly appointed representative, and
may from time to time consult with counsel who may be counsel to the
Bank.
8.3 Binding Effect of Decisions. Any decision or action of the Plan
Administrator with respect to any question arising out of or in
connection with the administration, interpretation and application of
the Agreement and the rules and regulations promulgated hereunder shall
be final and conclusive and binding upon all persons having any interest
in the Agreement.
8.4 Indemnity of Plan Administrator. The Bank shall indemnify and hold
harmless the members of the Plan Administrator against any and all
claims, losses, damages, expenses or liabilities arising from any action
or failure to act with respect to this Agreement, except in the case of
willful misconduct by the Plan Administrator or any of its members.
8.5 Bank Information. To enable the Plan Administrator to perform its
functions, the Bank shall supply full and timely information to the Plan
Administrator on all matters relating to the date and circumstances of
the death, Disability or Separation from Service of the Executive, and
such other pertinent information as the Plan Administrator may
reasonably require.
8.6 Annual Statement. The Plan Administrator shall provide to the Executive,
within one hundred twenty (120) days after the end of each Plan Year, a
statement setting forth the benefits to be distributed under this
Agreement.
Article 9
Miscellaneous
9.1 Binding Effect. This Agreement shall bind the Executive and the Bank,
and their beneficiaries, survivors, executors, administrators and
transferees.
9.2 No Guarantee of Employment. This Agreement is not a contract for
employment. It does not give the Executive the right to remain as an
employee of the Bank, nor interfere with the Bank's right to discharge
the Executive. It does not require the Executive to remain an employee
nor interfere with the Executive's right to terminate employment at any
time.
9.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
9.4 Tax Withholding and Reporting. The Bank shall withhold any taxes that
are required to be withheld, including but not limited to taxes owed
under Code Section 409A from the benefits provided under this Agreement.
The Executive acknowledges that the Bank's sole liability regarding
taxes is to forward any amounts withheld to the appropriate taxing
authorities. The Bank shall satisfy all applicable reporting
requirements, including those under Code Section 409A.
9.5 Applicable Law. The Agreement and all rights hereunder shall be governed
by the laws of the State of South Carolina, except to the extent
preempted by the laws of the United States of America.
9.6 Unfunded Arrangement. The Executive and the Beneficiary are general
unsecured creditors of the Bank for the distribution of benefits under
this Agreement. The benefits represent the mere promise by the Bank to
distribute such benefits. The rights to benefits are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment or garnishment by creditors. Any insurance on
the Executive's life or other informal funding asset is a general asset
of the Bank to which the Executive and Beneficiary have no preferred or
secured claim.
9.7 Reorganization. The Bank shall not merge or consolidate into or with
another bank, or reorganize, or sell substantially all of its assets to
another bank, firm or person unless such succeeding or continuing bank,
firm or person agrees to assume and discharge the obligations of the
Bank under this Agreement. Upon the occurrence of such an event, the
term "Bank" as used in this Agreement shall be deemed to refer to the
successor or survivor entity.
9.8 Entire Agreement. This Agreement constitutes the entire agreement
between the Bank and the Executive as to the subject matter hereof. No
rights are granted to the Executive by virtue of this Agreement other
than those specifically set forth herein.
9.9 Interpretation. Wherever the fulfillment of the intent and purpose of
this Agreement requires and the context will permit, the use of the
masculine gender includes the feminine and use of the singular includes
the plural.
9.10 Alternative Action. In the event it shall become impossible for the
Bank or the Plan Administrator to perform any act required by this
Agreement due to regulatory or other constraints, the Bank or Plan
Administrator may perform such alternative act as most nearly carries
out the intent and purpose of this Agreement and is in the best
interests of the Bank, provided that such alternative acts do not
violate Code Section 409A of the Code.
9.11 Headings. Article and section headings are for convenient reference
only and shall not control or affect the meaning or construction of any
provision herein.
9.12 Validity. If any provision of this Agreement shall be illegal or
invalid for any reason, said illegality or invalidity shall not affect
the remaining parts hereof, but this Agreement shall be construed and
enforced as if such illegal or invalid provision had never been
inserted herein.
9.13 Notice. Any notice or filing required or permitted to be given to the
Bank or Plan Administrator under this Agreement shall be sufficient if
in writing and hand-delivered or sent by registered or certified mail
to the address below:
Provident Community Bank, NA
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203 West Main St
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Union, SC 29379-2214
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Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to the Executive
under this Agreement shall be sufficient if in writing and
hand-delivered or sent by mail to the last known address of the
Executive.
9.14 Deduction Limitation on Benefit Payments. If the Bank reasonably
anticipates that the Bank's deduction with respect to any distribution
under this Agreement would be limited or eliminated by application of
Code Section 162(m), then to the extent deemed necessary by the Bank to
ensure that the entire amount of any distribution from this Agreement
is deductible, the Bank may delay payment of any amount that would
otherwise be distributed under this Agreement. The delayed amounts
shall be distributed to the Executive (or the Beneficiary in the event
of the Executive's death) at the earliest date the Bank reasonably
anticipates that the deduction of the payment of the amount will not be
limited or eliminated by application of Code Section 162(m).
9.15 Compliance with Code Section 409A. This Agreement shall be interpreted
and administered consistent with Code Section 409A.
IN WITNESS WHEREOF, the Executive and a duly authorized representative
of the Bank have signed this Agreement.
Executive: BANK:
Provident Community Bank, National Association
/s/ Richard H. Flake By /s/ Dwight V. Neese
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Richard H. Flake
Title President & CEO
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Provident Community Bank, National Association
Supplemental Executive Retirement Plan #2
Beneficiary Designation Form
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{ } New Designation
{ } Change in Designation
I, Richard H. Flake, designate the following as Beneficiary under the Agreement:
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Primary:
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Contingent:
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Notes:
o Please PRINT CLEARLY or TYPE the names of the beneficiaries.
o To name a trust as Beneficiary, please provide the name of the
trustee(s) and the exact name and date of the trust agreement.
o To name your estate as Beneficiary, please write "Estate of [your
name]".
o Be aware that none of the contingent beneficiaries will receive
anything unless ALL of the primary beneficiaries predecease you.
I understand that I may change these beneficiary designations by delivering a
new written designation to the Plan Administrator, which shall be effective only
upon receipt and acknowledgment by the Plan Administrator prior to my death. I
further understand that the designations will be automatically revoked if the
Beneficiary predeceases me, or, if I have named my spouse as Beneficiary and our
marriage is subsequently dissolved.
Name: Richard H. Flake
Signature: Date:
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Received by the Plan Administrator this day of , 2
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By:
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Title:
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