Exhibit 10.8(a)
AMENDMENT TO
THE DIRECTOR’S RETIREMENT
PLAN AGREEMENT
BY AND BETWEEN FIRST SOUTH BANK
AND MARSHALL T. SINGLETON
This Amendment
to the Director’s Retirement Plan Agreement by and between
FIRST SOUTH BANK (the “Bank”) and Marshall T.
Singleton (the “Director”) is entered into as of
December 26, 2008.
WHEREAS , the Director and the Bank previously entered
into a Director’s Retirement Plan Agreement dated January 1,
1994 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 7 of
the Agreement shall be amended by deleting the last three (3)
paragraphs of Section 7 which address the implementation of a
grantor trust.
THIRD CHANGE
The following
new Section 12 shall be added to the Agreement:
“
Section 12.
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provided the change in the terms of the Agreement are rescinded by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 t
