AMENDMENT NUMBER TWO TO EMPLOYMENT AGREEMENT
Exhibit
10.33
AMENDMENT
NUMBER TWO TO
This
Amendment Number Two is made as of December 1, 2008, to the Employment Agreement
dated as of April 16, 2007 (the “Agreement”), by and between Southern Community
Bank and Trust and Xxxxx X. Xxxxxx (“Officer”). This Amendment is
being made solely to conform the provisions of the Agreement to the requirements
of Section 409A of the Internal Revenue Code of 1986, as amended
(“Code”).
1. Paragraph
10(e) of the Agreement is amended to read as follows:
“(e) Such
amounts payable pursuant to this Paragraph 10 shall be paid in one lump sum
within sixty (60 days) following termination of this Agreement.”
2. The
Agreement is amended by adding the following Paragraphs 15 and 16:
“15. Delayed
Payments to Specified Employee of Publicly Traded Corporation. If the
Officer qualifies as a "specified employee" within the meaning of Treasury
Regulation 1.409A-1(i) and if the Company determines that any benefit paid to
the Officer hereunder is deferred compensation as defined by Section 409A of the
Code, then notwithstanding anything herein to the contrary, the Company shall,
to the extent necessary to avoid the imposition of additional income taxes or
penalties or interest on the Officer under Section 409A of the Code, accumulate
any payments of such benefit due hereunder and pay such benefit to the Officer
in a lump-sum payment on the first day of the seventh month following the date
of the Officer’s termination of employment.
16. Compliance
with Code Section 409A; No Deferral of Compensation. In
interpreting, construing or applying any provisions of the
Agreement, the same shall be
construed in such manner as shall comply with the terms of Section 409A of the
Code, and in the event of
any inconsistency with the terms of
Section 409A of the Code, the Corporation shall
reform the violating provision so as to meet
such terms. All payments of compensation due to Officer for the
performance of services pursuant to this Agreement, other than those provided
for under Section 10 above, shall be paid to Officer no later than two and
one-half months following the year in which the Officer performed such services
or, if later, the year in which the Officer attained a vested right to the
payment.”
3. No
other terms and conditions of the Agreement are affected by this
Amendment.
IN WITNESS WHEREOF, the
parties have executed this Amendment (Southern Community Bank and Trust by its
duly authorized officer) effective as of the day and year first written
above.
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SOUTHERN
COMMUNITY BANK AND TRUST
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By:
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/s/ Xxxx X.
Xxxxx
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Xxxx
X. Xxxxx, President
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OFFICER
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/s/ Xxxxx X. Xxxxxx,
Xx.
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(SEAL)
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Xxxxx
X. Xxxxxx
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