AMENDMENT TO THE FIRST SOUTH BANK AND FIRST SOUTH BANCORP EMPLOYMENT AGREEMENT WITH THOMAS A. VANN
Exhibit
10.1(c)
AMENDMENT
TO THE
FIRST
SOUTH BANK AND FIRST SOUTH BANCORP
EMPLOYMENT
AGREEMENT WITH XXXXXX X. XXXX
WHEREAS, Xxxxxx X. Xxxx (the
“Executive”) entered into an amended and restated employment agreement with
First South Bank (the “Bank”) and First South Bancorp, Inc. (the “Company”)
effective April 20, 2006 (the “Agreement”); and
WHEREAS, the parties to the
Agreement desire to amend the Agreement to conform with Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and
guidance issued with respect to 409A of the Code; and
WHEREAS, Section 18 of the
Agreement provides that the Agreement may be amended or modified at any time by
means of a written instrument signed by the parties.
NOW, THEREFORE, the Bank, the
Company and the Executive agree to amend the Agreement effective
December 18, 2008:
FIRST
CHANGE
The
following language shall be added to Section 10(d) of the Agreement immediately
following the penultimate sentence in Section 10(d) of the
Agreement:
“The
Employee must notify the Bank or the Company within ninety (90) days after the
initial existence of an event that qualifies as “Good Reason” and the Bank or
the Company must be given an opportunity, not less than thirty (30) days, to
effectuate a cure for such asserted “Good Reason” by the
Employee.”
SECOND
CHANGE
The
following new Section 24 shall be added to the Agreement:
“24. SECTION 409A OF THE CODE.
(a) This
Agreement is intended to comply with the requirements of Section 409A of the
Code, and specifically, with the “short-term deferral exception” under Treasury
Regulation Section 1.409A-1(b)(4) and the “separation pay exception” under
Treasury Regulation Section 1.409A-1(b)(9)(iii), and shall in all respects be
administered in accordance with Section 409A of the Code. If any
payment or benefit hereunder cannot be provided or made at the time specified
herein without incurring sanctions on Employee under Section 409A of the Code,
then such payment or benefit shall be provided in full at the earliest time
thereafter when such sanctions will not be imposed. For purposes of
Section 409A of the Code, all payments to be made upon a termination of
employment under this Agreement may only be made upon a “separation from
service” (within the meaning of such term under Section 409A of the Code), each
payment made under this Agreement shall be treated as a separate payment, the
right to a series of installment payments under this Agreement (if any) is to be
treated as a right to a series of separate payments, and if a payment is not
made by the designated payment date under this Agreement, the payment shall be
made by December 31 of the calendar year in which the designated date
occurs. To the extent that any payment provided for hereunder would
be subject to additional tax under Section 409A of the Code, or would cause the
administration of this Agreement to fail to satisfy the requirements of Section
409A of the Code, such provision shall be deemed null and void to the extent
permitted by applicable law, and any such amount shall be payable in accordance
with b. below. In no event shall Employee, directly or indirectly,
designate the calendar year of payment.
(b) If
when separation from service occurs Employee is a “specified employee” within
the meaning of Section 409A of the Code, and if the cash severance payment under
Sections 10(d) or 12(b) of this Agreement would be considered deferred
compensation under Section 409A of the Code, and, finally, if an exemption from
the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not
available (i.e., the “short-term deferral exception” under Treasury Regulations
Section 1.409A-1(b)(4) or the “separation pay exception” under Treasury Section
1.409A-1(b)(9)(iii)), the Bank or the Company will make the maximum severance
payment possible in order to comply with an exception from the six month
requirement and make any remaining severance payment under Sections 10(d) or
12(b) of this Agreement to Employee in a single lump sum without interest on the
first payroll date that occurs after the date that is six (6) months after the
date on which Employee separates from service.
(c) If
(x) under the terms of the applicable policy or policies for the insurance or
other benefits specified in Sections 10(d) or 12(b) of this Agreement it is not
possible to continue coverage for Employee and his dependents, or (y) when a
separation from service occurs Employee is a “specified employee” within the
meaning of Section 409A of the Code, and if any of the continued insurance
coverage or other benefits specified in Section 3(b) of this Agreement would be
considered deferred compensation under Section 409A of the Code, and, finally,
if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i)
of the Code is not available for that particular insurance or other benefit, the
Bank or the Company shall pay to Employee in a single lump sum an amount in cash
equal to the present value of the Bank’s projected cost to maintain that
particular insurance benefit had Employee’s employment not
terminated. The lump-sum payment shall be made thirty (30) days after
employment termination or, if Section 24(b) of this Agreement applies, on the
first payroll date that occurs after the date that is six (6) months after the
date on which Employee separates from service.
(d) References
in this Agreement to Section 409A of the Code include rules, regulations, and
guidance of general application issued by the Department of the Treasury under
Internal Revenue Section 409A of the Code.”
IN WITNESS WHEREOF, the Bank
has caused this Amendment to be executed by its duly authorized officer, and
Executive has signed this Amendment, on the 18th day of December,
2008.
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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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ATTEST:
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FIRST
SOUTH BANCORP, INC.
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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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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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