Exhibit 10.15(a)
AMENDMENT TO THE PAUL S.
JABER
CHANGE IN CONTROL PROTECTIVE
AGREEMENT
WHEREAS, Paul S. Jaber (the
“Executive”) entered into a change in control
protective agreement with First South Bank (the “Bank”)
and First South Bancorp, Inc. (the “Company”) effective
July 8, 2002 (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 9 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 as follows:
FIRST CHANGE
Section 4 of
the Agreement shall be deleted in its entirety and reserved for
future use.
SECOND CHANGE
Section 2 of
the Agreement shall be amended by adding the following
paragraph:
“In the
event the Employee elects to terminate his employment for Good
Reason, he 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.”
THIRD CHANGE
The following
new Section 13 shall be added to the Agreement:
“13.
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
