AMENDMENT TO THE SUPPLEMENTAL INCOME PLAN AGREEMENT BY AND BETWEEN FIRST SOUTH BANK AND THOMAS A. VANN
Exhibit
10.4(a)(1)
AMENDMENT
TO
BY
AND BETWEEN FIRST SOUTH BANK AND XXXXXX X. XXXX
This
Amendment to the Supplemental Income Plan Agreement by and between FIRST SOUTH BANK (the “Bank”)
and Xxxxxx X. Xxxx
(“Executive”) is entered into as of December 26, 2008.
WHEREAS, Executive and the
Bank previously entered into a Supplemental Income Plan Agreement dated January
1, 1994 which was restated on December 14, 1995 and subsequently amended (the
“Agreement”); and
WHEREAS, Executive and the
Bank desire to amend the Agreement to comply with the requirements of
Section 409A of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree to amend the as
follows:
FIRST
CHANGE
All
references in the Agreement to New South Bancorp, Inc. shall be replaced with
First South Bancorp, Inc.
SECOND
CHANGE
Section 7
of the Agreement shall be amended by deleting the last three (3) paragraphs
thereof which address the implementation of a grantor trust.
THIRD
CHANGE
The
following new Section 13 shall be added to the Agreement:
“Section
13. Section
409A
This
Agreement shall at all times be administered and the provisions of this
Agreement shall be interpreted consistent with the requirements of Section
409A. For purposes of this Agreement, Section 409A shall refer to
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and
the Treasury regulations and any other authoritative guidance issued
thereunder. Any modification to the terms of this Agreement that
would inadvertently result in an additional tax liability on the part of the
Employee shall have no effect, provided the change in the terms of the Agreement
are rescinded by the earlier of a date before the right is exercised (if the
change grants a discretionary right) and the last day of the calendar year
during which such change occurred.
On or
before December 31, 2008, if the Employee wishes to change his or her election
as to the form or timing of the payment under this Agreement, the Employee may
do so by completing a Transition Relief Election Form, provided that any such
election (i) must be made prior to the Employee’s separation from service, (ii)
shall not take effect before the date that is 12 months after the date the
election is made, (iii) cannot apply to amounts that would otherwise be payable
in 2008 and may not cause an amount to be paid in 2008 that would otherwise be
paid in a later year.
Changes
to elections under this Agreement after December 31, 2008: (i) may not
accelerate the payment of benefits, (ii) must be made at least 12 months prior
to the scheduled distribution date, and (iii) must postpone payment (or the
commencement of payments) for at least five (5) years from the scheduled
distribution date.
Despite
any contrary provision of this Agreement, if, when an Employee’s service
terminates, the Employee is a “specified employee,” as defined in Section 409A
of the Code, and if any payments under this Agreement will result in additional
tax or interest to the Employee because of Section 409A of the Code, the
Employee shall not be entitled to the such payments until the earliest of (i)
the date that is at least six months after termination of the Employee’s
employment for reasons other than the Employee’s death, (ii) the date of the
Employee’s death, or (iii) any earlier date that does not result in additional
tax or interest to the Employee under Section 409A of the Code.”
FOURTH
CHANGE
The
second paragraph of Section 6 of the Agreement shall be amended in its entirety
as follows:
“Except
as otherwise provided in Sections 1, 2 or 3 as applicable, in the event that, on
or before the occurrence of an Employee’s Retirement Date or Early Retirement
Date, a “Termination of Protected Employment” occurs following a Change in
Control (as defined herein), then the Employee shall be deemed to have retired
as of his Early Retirement Date and the Employee may elect to receive the
present value of his accrued benefit in a lump sum or installment payments as
set forth in Section 1 of this Agreement. Said election must be made
in accordance with Section 13 of this Agreement.
An
Employee will be deemed to have a termination of employment for purposes of
determining the timing of any payments under this Agreement only upon a
“separation from service” within the meaning of Section 409A of the
Code.”
FIFTH
CHANGE
Section 1
of the Agreement shall be deleted in its entirety and replaced with the
following new Section 1:
“Except
as otherwise specifically provided herein, if the Employee shall retire from
employment with the Bank either at or after the age of 65 (the “Retirement
Date”) or at or after age 55 with 10 years of employment with the Bank (the
“Early Retirement Date”), the Bank shall pay the Employee the annual benefit set
forth on Exhibit A to this Agreement (based on years of employment with the Bank
after January 1, 1994). The Employee may elect to receive his benefit
in annual installments over a fifteen year period or he may elect to receive the
present value of his fifteen year benefit in a lump sum. Benefits
under this Agreement will be paid (or commence to be paid) within 10 days of the
Employee’s Retirement Date or Early Retirement Date (whichever is
applicable). Said election must be made in accordance with Section 13
of this Agreement.”
Except as
expressly provided herein, the terms and conditions of the Agreement shall
remain in full force and effect and shall be binding on the parties hereto until
the expiration of the term of the Agreement. Effectiveness of this
Amendment to the Agreement shall be conditioned upon approval by the Board of
Directors of the Bank (or appropriate committee thereof), and this Amendment to
the Supplemental Income Plan Agreement shall become effective on the later of
date of such approval and execution by both parties hereto.
IN WITNESS WHEREOF, the
parties have duly executed and delivered this Amendment to the Agreement, as of
the day and year first above written.
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ATTEST:
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FIRST SOUTH BANK
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/s/ Xxxxxxx X. Xxxx
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/s/ Xxxxxxxxx X.
Xxxxxxxx
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Chairman
of the Board
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||
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WITNESS:
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EXECUTIVE
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/s/ Xxxxxxx X. Xxxx
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/s/ Xxxxxx X. Xxxx
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Xxxxxx
X. Xxxx
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Exhibit
10.4(a)(2)
AMENDMENT
TO
BY
AND BETWEEN FIRST SOUTH BANK AND XXXXXXX X. XXXX
This
Amendment to the Supplemental Income Plan Agreement by and between FIRST SOUTH BANK (the “Bank”)
and Xxxxxxx X. Xxxx
(“Executive”) is entered into as of December 26, 2008.
WHEREAS, Executive and the
Bank previously entered into a Supplemental Income Plan Agreement dated January
1, 1994 which was restated on December 14, 1995 and subsequently amended (the
“Agreement”); and
WHEREAS, Executive and the
Bank desire to amend the Agreement to comply with the requirements of
Section 409A of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree to amend the as
follows:
FIRST
CHANGE
All
references in the Agreement to New South Bancorp, Inc. shall be replaced with
First South Bancorp, Inc.
SECOND
CHANGE
Section 7
of the Agreement shall be amended by deleting the last three (3) paragraphs
thereof which address the implementation of a grantor trust.
THIRD
CHANGE
The
following new Section 13 shall be added to the Agreement:
“Section
13. Section
409A
This
Agreement shall at all times be administered and the provisions of this
Agreement shall be interpreted consistent with the requirements of Section
409A. For purposes of this Agreement, Section 409A shall refer to
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and
the Treasury regulations and any other authoritative guidance issued
thereunder. Any modification to the terms of this Agreement that
would inadvertently result in an additional tax liability on the part of the
Employee shall have no effect, provided the change in the terms of the Agreement
are rescinded by the earlier of a date before the right is exercised (if the
change grants a discretionary right) and the last day of the calendar year
during which such change occurred.
On or
before December 31, 2008, if the Employee wishes to change his or her election
as to the form or timing of the payment under this Agreement, the Employee may
do so by completing a Transition Relief Election Form, provided that any such
election (i) must be made prior to the Employee’s separation from service, (ii)
shall not take effect before the date that is 12 months after the date the
election is made, (iii) cannot apply to amounts that would otherwise be payable
in 2008 and may not cause an amount to be paid in 2008 that would otherwise be
paid in a later year.
Changes
to elections under this Agreement after December 31, 2008: (i) may not
accelerate the payment of benefits, (ii) must be made at least 12 months prior
to the scheduled distribution date, and (iii) must postpone payment (or the
commencement of payments) for at least five (5) years from the scheduled
distribution date.
Despite
any contrary provision of this Agreement, if, when an Employee’s service
terminates, the Employee is a “specified employee,” as defined in Section 409A
of the Code, and if any payments under this Agreement will result in additional
tax or interest to the Employee because of Section 409A of the Code, the
Employee shall not be entitled to the such payments until the earliest of (i)
the date that is at least six months after termination of the Employee’s
employment for reasons other than the Employee’s death, (ii) the date of the
Employee’s death, or (iii) any earlier date that does not result in additional
tax or interest to the Employee under Section 409A of the Code.”
FOURTH
CHANGE
The
second paragraph of Section 6 of the Agreement shall be amended in its entirety
as follows:
“Except
as otherwise provided in Sections 1, 2 or 3 as applicable, in the event that, on
or before the occurrence of an Employee’s Retirement Date or Early Retirement
Date, a “Termination of Protected Employment” occurs following a Change in
Control (as defined herein), then the Employee shall be deemed to have retired
as of his Early Retirement Date and the Employee may elect to receive the
present value of his accrued benefit in a lump sum or installment payments as
set forth in Section 1 of this Agreement. Said election must be made
in accordance with Section 13 of this Agreement.
An
Employee will be deemed to have a termination of employment for purposes of
determining the timing of any payments under this Agreement only upon a
“separation from service” within the meaning of Section 409A of the
Code.”
FIFTH
CHANGE
Section 1
of the Agreement shall be deleted in its entirety and replaced with the
following new Section 1:
“Except
as otherwise specifically provided herein, if the Employee shall retire from
employment with the Bank either at or after the age of 65 (the “Retirement
Date”) or at or after age 55 with 10 years of employment with the Bank (the
“Early Retirement Date”), the Bank shall pay the Employee the annual benefit set
forth on Exhibit A to this Agreement (based on years of employment with the Bank
after January 1, 1994). The Employee may elect to receive his benefit
in annual installments over a fifteen year period or he may elect to receive the
present value of his fifteen year benefit in a lump sum. Benefits
under this Agreement will be paid (or commence to be paid) within 10 days of the
Employee’s Retirement Date or Early Retirement Date (whichever is
applicable). Said election must be made in accordance with Section 13
of this Agreement.”
Except as
expressly provided herein, the terms and conditions of the Agreement shall
remain in full force and effect and shall be binding on the parties hereto until
the expiration of the term of the Agreement. Effectiveness of this
Amendment to the Agreement shall be conditioned upon approval by the Board of
Directors of the Bank (or appropriate committee thereof), and this Amendment to
the Supplemental Income Plan Agreement shall become effective on the later of
date of such approval and execution by both parties hereto.
IN WITNESS WHEREOF, the
parties have duly executed and delivered this Amendment to the Agreement, as of
the day and year first above written.
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ATTEST:
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FIRST SOUTH BANK
|
|
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/s/ Xxxxxxx X. Xxxxxxx
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/s/ Xxxxxxxxx X.
Xxxxxxxx
|
|
|
Chairman
of the Board
|
||
|
WITNESS:
|
EXECUTIVE
|
|
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/s/ Xxxxxxx X. Xxxxxxx
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/s/ Xxxxxxx X. Xxxx
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|
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Xxxxxxx
X. Xxxx
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