AMENDMENT NUMBER ONE TO SALARY CONTINUATION AGREEMENT
Exhibit
10.40
AMENDMENT
NUMBER ONE TO
This
Amendment Number One is made as of December 30, 2008, to the Salary Continuation
Agreement dated as of March 14, 2007 (the “Agreement”), by and between Southern
Community Bank and Trust and Xxxxxx X. Xxxxx (“Executive”).
1. The
Agreement is amended by adding the following Paragraph:
“7.15. Compliance
with ESSA. To the extent that any payment under this Agreement would
constitute a prohibited parachute payment under Section 111(b)(2)(C) of the
Emergency Economic Stabilization Act of 2008 (“EESA”), the Bank agrees to pay
Executive an additional payment equal to the prohibited payment on July 1, 2012,
or if later, the earliest date when Section 111(b)(2)(C) of EESA no longer
prohibits such payment. Such payment shall be made in a single lump
sum in cash, without interest. The Executive may be entitled to
severance payments from multiple agreements and plans with the
Bank. The Bank, it its sole discretion, shall determine which
payments shall be delayed in order to comply with
ESSA. Notwithstanding anything in this paragraph to the
contrary, the additional amounts due under the Agreement shall not be paid if
the Treasury Department or other governmental agency issues guidance subsequent
to the date of this Agreement that would prohibit such payment. A
prohibited parachute payment shall be interpreted in a manner that is consistent
with Notice 2008-TAAP, Notice 2008-94 and all other current or future guidance
issued pursuant to Section 111(b)(2)(C) of EESA or Section 280G(e) of
the Internal Revenue Code of 1986, as amended.”
2. No
other terms and conditions of the Agreement are affected by this
Amendment.
IN WITNESS WHEREOF, the
parties have executed this Amendment as of the day and year first written
above.
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SOUTHERN
COMMUNITY BANK AND TRUST
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By:
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/s/ Xxxx X.
Xxxxx
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Xxxx
X. Xxxxx, President
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EXECUTIVE
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/s/ Xxxxxx X. Xxxxx
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(SEAL)
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Xxxxxx
X. Xxxxx
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