Exhibit 10.6(a)(1)
AMENDMENT TO
THE DIRECTOR’S RETIREMENT
PLAN AGREEMENT
BY AND BETWEEN FIRST SOUTH BANK
AND FREDERICK N. HOLSCHER
This Amendment
to the Director’s Retirement Plan Agreement by and between
FIRST SOUTH BANK (the “Bank”) and Frederick
N. Holscher (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provided the change in the terms of the Agreement are rescinded by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 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
The second
paragraph in Section 6 shall be deleted in its entirety and
replaced with the following new paragraph:
“Except
as otherwise provided in Sections 1, 2, 3 or 4, as applicable, in
the event that, on or before the occurrence of the Qualifying Date,
the Director’s service as a director of the Bank is
terminated for any reason following a Change in Control as defined
in Section 7 hereof, the Director may elect to receive the present
value of his accrued benefit under this Agreement in a lump sum or
the Director may elect to receive installment payments as provided
under Section 1 of the Agreement. The Director’s
Change in Control election must be made in accordance with Section
12 of this Agreement. The payment of benefits under this
Section 6 shall commence within 10 days of the Director’s
separation from service (as defined under Section 409A of the
Internal Revenue Code) following a Change in Control, unless the
Director is a specified employee and the payment must be delayed in
accordance with Section 12 of this Agreement.”
FIFTH CHANGE
Section 1 of
the Agreement shall be deleted in its entirety and replaced with
the following new Section 1:
“The Bank
agrees that, except as otherwise specifically provided herein, upon
the later to occur of the Director’s 70
th birthday or January 1, 1999 (the
“Qualifyi
