Exhibit 10.12(a)
AMENDMENT TO THE WILLIAM L.
WALL
CHANGE IN CONTROL PROTECTIVE
AGREEMENT
WHEREAS, William L. Wall (the
“Executive”) entered into a change in control
protective agreement with First South Bank (the “Bank”)
and First South Bancorp, Inc. 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 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
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. 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 subjec
