Exhibit 10.1(c)
AMENDMENT TO THE
FIRST SOUTH BANK AND FIRST SOUTH
BANCORP
EMPLOYMENT AGREEMENT WITH THOMAS
A. VANN
WHEREAS,
Thomas A. Vann (the
“Executive”) entered into an amended and restated
employment agreement with First South Bank (the “Bank”)
and First South Bancorp, Inc. (the “Company”)
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 18 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:
FIRST CHANGE
The following
language shall be added to Section 10(d) of the Agreement
immediately following the penultimate sentence in Section 10(d) of
the Agreement:
“The
Employee 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.”
SECOND CHANGE
The following
new Section 24 shall be added to the Agreement:
“
24.
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 un
