AMENDMENT TO THE DIRECTOR’S RETIREMENT PAYMENT AGREEMENT BY AND BETWEEN FIRST SOUTH BANK AND FREDERICK N. HOLSCHER
Exhibit
10.7(a)(1)
AMENDMENT
TO
BY
AND BETWEEN FIRST SOUTH BANK AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
This
Amendment to the Director’s Retirement Payment Agreement by and between FIRST SOUTH BANK (the “Bank”)
and ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ (the “Director”) is entered into as of December 26,
2008.
WHEREAS, the Director and the
Bank previously entered into a Director’s Retirement Payment Agreement dated May
1, 1984 which was restated on December 14, 1995 and subsequently amended (the
“Agreement”); and
WHEREAS, the Director 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. and all references to Home Savings Bank, SSB shall be
replaced with First South Bank.
SECOND
CHANGE
Section
5G of the Agreement shall be amended by deleting the first three (3) paragraphs
of Section 5G which address the implementation of a grantor trust.
THIRD
CHANGE
The
following new Section 7 shall be added to the Agreement:
“Section
7. 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
Director 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are rescinded by the earlier of a date before the right is exercised (if the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 Director wishes to change his or
her election as to the form or timing of the payment under this
Agreement, the Director may do so by completing a Transition Relief Election
Form, provided that any such election (i) must be made prior to the Director’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 a Director’s service
terminates, the Director 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 Director because of Section 409A of the Code, the
Director 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 Director’s
employment for reasons other than the Director’s death, (ii) the date of the
Director’s death, or (iii) any earlier date that does not result in additional
tax or interest to the Director under Section 409A of the Code.
A
Director will be deemed to have a termination of service 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.”
FOURTH
CHANGE
Section 4
of the Agreement shall be amended in its entirety to provide as
follows:
“In the
event that, prior to the commencement of payments pursuant to Section 2 hereof,
a Director’s service as a director of the Bank is terminated for any reason
other than death, then the director shall be entitled to the benefits set forth
in Section 2 of this Agreement. Notwithstanding the foregoing, if a
Director’s service is terminated following a Change in Control as defined
herein, the Director may elect to receive his benefits under this Agreement in
monthly installments as set forth in Section 2 of this Agreement or the Director
may elect to receive the present value of his benefits under this Agreement in a
single lump sum payment. Said election must be in accordance with
Section 7 of this Agreement. Subject to Section 7, the payment (or
commencement) of benefits following termination of service in connection with a
Change in Control shall begin within 10 days of the Director’s separation from
service (as defined under Section 409A of the Code) following a Change in
Control.”
FIFTH
CHANGE
The first
sentence of Section
2 of the Agreement is deleted in its entirety and replaced with the following
new language:
“Upon the
occurrence of the earlier of the Director’s 65th
birthday or his termination of service for any reason on or after attaining age
55 (except as otherwise specifically provided herein), the Bank will pay him
$3,628 per month for a continuous period of 120 months, unless the Director
elects to receive the present value of his benefit under this Section 2 in a
lump sum. Said election must be made in accordance with Section 7 of
this Agreement. The payment of benefits under this Section 2 shall
commence on the earlier of the Director’s 65th
birthday or his termination of service on or after attaining age
55.”
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 Director’s Retirement Pay 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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Vice
Chairman of the Board
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WITNESS:
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DIRECTOR
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Exhibit
10.7(a)(2)
AMENDMENT
TO
BY
AND BETWEEN FIRST SOUTH BANK AND ▇▇▇▇▇▇ ▇. ▇▇▇▇
This
Amendment to the Director’s Retirement Payment Agreement by and between FIRST SOUTH BANK (the “Bank”)
▇▇▇▇▇▇ ▇. ▇▇▇▇ (the
“Director”) is entered into as of December 26, 2008.
WHEREAS, the Director and the
Bank previously entered into a Director’s Retirement Payment
Agreement dated May 1, 1984 which was restated on December 14, 1995
and subsequently amended (the “Agreement”); and
WHEREAS, the Director 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. and all references to Home Savings Bank, SSB shall be
replaced with First South Bank.
SECOND
CHANGE
Section
5G of the Agreement shall be amended by deleting the first three (3) paragraphs
of Section 5G which address the implementation of a grantor trust.
THIRD
CHANGE
The
following new Section 7 shall be added to the Agreement:
“Section
7. 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
Director 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 Director wishes to change his or
her election as to the form or timing of the payment under this
Agreement, the Director may do so by completing a Transition Relief Election
Form, provided that any such election (i) must be made prior to the Director’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 a Director’s service
terminates, the Director 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 Director because of Section 409A of the Code, the
Director 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 Director’s
employment for reasons other than the Director’s death, (ii) the date of the
Director’s death, or (iii) any earlier date that does not result in additional
tax or interest to the Director under Section 409A of the Code.
A
Director will be deemed to have a termination of service 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.”
FOURTH
CHANGE
Section 4
of the Agreement shall be amended in its entirety to provide as
follows:
“In the
event that, prior to the commencement of payments pursuant to Section 2 hereof,
a Director’s service as a director of the Bank is terminated for any reason
other than death, then the director shall be entitled to the benefits set forth
in Section 2 of this Agreement. Notwithstanding the foregoing, if a
Director’s service is terminated following a Change in Control as defined
herein, the Director may elect to receive his benefits under this Agreement in
monthly installments as set forth in Section 2 of this Agreement or the Director
may elect to receive the present value of his benefits under this Agreement in a
single lump sum payment. Said election must be in accordance with
Section 7 of this Agreement. Subject to Section 7, the payment (or
commencement) of benefits following termination of service in connection with a
Change in Control shall begin within 10 days of the Director’s separation from
service (as defined under Section 409A of the Code) following a Change in
Control.”
FIFTH CHANGE
The first
sentence of Section
2 of the Agreement is deleted in its entirety and replaced with the following
new language:
“Upon the
occurrence of the earlier of the Director’s 65th
birthday or his termination of service for any reason on or after attaining age
55 (except as otherwise specifically provided herein), the Bank will pay him
$8,256 per month for a continuous period of 120 months, unless the Director
elects to receive the present value of his benefit under this Section 2 in a
lump sum. Said election must be made in accordance with Section 7 of
this Agreement. The payment of benefits under this Section 2 shall
commence on the earlier of the Director’s 65th
birthday or his termination of service on or after attaining age
55.”
SIXTH
CHANGE
Effective
December 31, 2005, the 4th WHEREAS
clause in the Agreement is revised to replace “until the end of his term as
director” with “through
December 31, 2005”.
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 Director’s Retirement Payment Agreement shall become effective on the later
of date of such approval and execution by both parties hereto, unless otherwise
specified herein.
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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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/s/ ▇▇▇▇▇▇▇▇▇ ▇.
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Chairman
of the Board
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WITNESS:
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DIRECTOR
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