FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.5
FIRST
AMENDMENT TO
This
FIRST AMENDMENT to the Employment Agreement by and between W. XXXXX XXXXX, XX. (the
“Executive”) and FIRST
NATIONAL BANK OF GEORGIA
F/K/A WEST GEORGIA
NATIONAL BANK (the “Bank”) is entered into by the parties thereto on this
31st day of December, 2008.
W I T N E S S E T
H
WHEREAS,
the parties entered into that certain employment agreement effective on or about
July 11, 2005 (the “Agreement”).
WHEREAS,
the parties desire to amend the Agreement to comply with the final regulations
issued under Section 409A of the Internal Revenue Code.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto agree, effective as of January 1, 2009, to amend the Agreement as
follows:
1. By
deleting the existing Section 1.9(ii) of the Agreement and substituting therefor
the following:
“(ii) Change in Effective
Control. A change in effective control of WGNB that occurs on
the date that either:
(A) any
one person, or more than one person acting as a group, acquires (or has acquired
during the 12-month period ending on the date of the most recent acquisition by
such person or persons) ownership of stock of WGNB possessing 35 percent or more
of the total voting power of the stock of WGNB; or
(B) a
majority of the members of the Board of WGNB is replaced during any 12-month
period by directors whose appointment or election is not endorsed by a majority
of the members of such Board prior to the date of the appointment or
election.”
2. By
deleting the existing Section 1.18 of the Agreement and substituting therefor
the following:
“1.18 Termination Date
shall mean the effective date of the Executive’s termination of
employment.”
3. By
adding the following to the end of the existing Section 3.5 of the
Agreement:
“Such
monthly allowance will be paid on a monthly basis.”
4. By
adding the following new Section 3.9:
“3.9 Rules Governing
Reimbursements and In-Kind Benefits. All expenses eligible for
reimbursement described in this Agreement must be incurred by the Executive
during the Term of this Agreement (or, with respect to Section 5.2(c), during
the period specified thereunder) to be eligible for reimbursement. All in-kind
benefits described in this Agreement must be provided by the Bank and/or WGNB,
as applicable, during the Term of this Agreement. To the extent any such
reimbursement or in-kind benefit is taxable to the Executive, the amount of
reimbursable expenses incurred, and the amount of in-kind benefits provided, in
one taxable year shall not affect the expenses eligible for reimbursement, or
in-kind benefits provided, in any other taxable year. Each category of
reimbursement shall be paid as soon as administratively practicable, but in no
event shall any such reimbursement be paid after the last day of the calendar
year following the calendar year in which the expense was incurred. Neither
rights to reimbursement nor in-kind benefits are subject to liquidation or
exchange for other benefits.”
5. By
deleting the last two sentences of the existing Section 5.2(c) and substituting
therefore the following:
“In
addition, if the Executive or his eligible qualified beneficiaries have elected
COBRA continuation coverage under the Bank’s group health plan and any one of
them becomes eligible for COBRA continuation coverage beyond the initial
18-month period due to a second qualifying event, the Executive shall be
entitled to a reimbursement for the cost of such COBRA continuation coverage,
provided that the Executive or the applicable qualified beneficiary must elect
such coverage and pay the applicable premium.”
6. By
deleting the last two sentences of the existing Section 5.3(c) and substituting
therefore the following:
“In
addition, if the Executive or his eligible qualified beneficiaries have elected
COBRA continuation coverage under the Bank’s group health plan and any one of
them becomes eligible for COBRA continuation coverage beyond the initial
18-month period due to a second qualifying event, the Executive shall be
entitled to a reimbursement for the cost of such COBRA continuation coverage,
provided that the Executive or the applicable qualified beneficiary must elect
such coverage and pay the applicable premium.”
7. By
adding the following to the end of the existing Section 5.3(d) of the
Agreement:
“In the
event that any payment or benefit is required to be reduced pursuant to this
Section, the portions of amounts paid or benefits provided latest in time will
be reduced first and if portions of the amounts to be paid or benefits to be
provided at the same time must be reduced, noncash benefits will be reduced
before cash payments.”
8. By
adding the following new Sections 5.8 and 5.9:
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“5.8 Specified
Employee. Notwithstanding the timing of payment under Article
5, if the Executive is determined to be a ‘specified employee’ as defined in
Code Section 409A, then to the extent necessary to avoid the imposition of tax
on the Executive under Code Section 409A, any payments that are otherwise
payable to the Executive within the first six (6) months following the effective
date of the Executive’s termination of employment, shall be suspended (without
interest) and paid on the first day of the seventh month following the such
effective date.
5.9 Separation from
Service. References to termination, termination of employment,
resign, resignation or similar terms hereunder shall mean a ‘separation from
service’ within the meaning of Treasury Regulations Section
1.409A-1(h).”
Except as
provided herein, the terms of the Agreement shall remain in full force and
effect.
IN
WITNESS WHEREOF, the Executive and the Bank have each executed and delivered
this First Amendment as of the date first above written.
| EXECUTIVE: | |||
|
|
By:
|
/s/ W. Xxxxx Xxxxx, Xx. | |
| W. XXXXX XXXXX, XX. | |||
|
FIRST NATIONAL BANK OF GEORGIA
F/K/A WEST GEORGIA NATIONAL
BANK
|
|||
|
|
By:
|
/s/ X.X. Xxxxxx, III | |
| Name: | X.X. Xxxxxx, III | ||
| Title: | CEO | ||
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