FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.2
FIRST
AMENDMENT TO
This
FIRST AMENDMENT (this “First Amendment”) is made as of the 30th day of December,
2008, by and among XXXXXXX
X. XXXXX, a
resident of the State of Georgia (“Executive”), FIRST NATIONAL BANK OF GEORGIA
(f/k/a WEST GEORGIA NATIONAL BANK), a national banking association (the
“Bank”), and the Bank’s sole shareholder, WGNB CORP., a Georgia bank
holding company (“WGNB”).
R E C I T A L
S:
WHEREAS,
the Employer and Executive are parties to that certain employment agreement
dated July 1, 2007 (the “Agreement”); and
WHEREAS,
the Employer and Executive desire to amend the Agreement for compliance with
Section 409A of the Internal Revenue Code of 1986.
NOW,
THEREFORE, the parties hereto, for and in consideration of the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, intending to be legally bound
hereby, do agree to amend the Agreement, effective as of January 1, 2009 as
follows:
1. By
deleting the existing Section 1.9(ii) of the Agreement and substituting
therefore 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 1.19 of the Agreement and substituting therefore
the following:
“1.19 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 to the Agreement:
“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 5.1(c)(ii)(B),
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 sentence of the existing Section 5.1(c)(ii)(A) of the
Agreement and substituting therefor the following:
“The
severance pay provided for in this Section shall be paid in a single sum cash
payment.”
6. By
deleting the last two sentences of the existing Section 5.1(c)(ii)(B) and
substituting therefor 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
deleting the phrase “as soon as administratively practicable following the
Termination Date” from the third sentence of Section 5.3 of the
Agreement.
8. By
deleting the existing Section 5.7 of the Agreement and substituting therefor the
following:
“5.7 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.”
9. By
adding the following new Sections 5.8 and 5.9 to the Agreement to read as
follows:
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“5.8 Timing of
Payment. Except as specifically provided in Section
5.1(c)(ii)(B), any amount payable to the Executive under this Sections 5.1
through 5.4 shall be paid within thirty (30) days following the Termination
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).”
10. By
adding the following to the end of the existing Section 6.2 of the Agreement and
substituting therefor the following:
“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.”
11. By
deleting the existing Section 6.5 of the Agreement and substituting therefor the
following:
“6.5 Specified
Employee. Notwithstanding the timing of payment under Article
6, 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.”
Except as
specifically amended hereby, the Agreement shall remain in full force and effect
as prior to this First Amendment.
[Remainder
of page intentionally left blank.]
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IN
WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the
date first set forth above.
| FIRST NATIONAL BANK OF GEORGIA: | |||
|
|
By:
|
/s/ X.X. Xxxxxx, III | |
| X.X. Xxxxxx, III | |||
| Title: | CEO | ||
|
|
By:
|
X.X. Xxxxxx, III | |
| X.X. Xxxxxx, III | |||
| Title: | CEO | ||
| EXECUTIVE: | |||
|
|
|
/s/ Xxxxxxx X. Xxxxx | |
| Xxxxxxx X. Xxxxx | |||
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