ex10-4.htm


    
      

    

    
      Exhibit
10.4

       

      FIRST
AMENDMENT TO

      EMPLOYMENT
AGREEMENT

       

      This
FIRST AMENDMENT (this “First Amendment”) is made as of the 31st day of December,
2008, by and among MARY
M. COVINGTON, 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 1.19 of the Agreement and substituting therefor
the following:

       

      “1.19     Termination Date
shall mean the effective date of the Executive’s termination of
employment.”

       

      2.           By
adding the following to the end of the existing Section 3.3 of the
Agreement:

       

      “Unless
otherwise specifically provided by the terms of the applicable bonus plan or
program, any bonus payable under this Section will be paid in the calendar year
following the calendar year for which it is earned.”

       

      3.           By
adding the following to the end of the existing Section 3.7 of the
Agreement:

       

      “Such
monthly allowance will be paid on a monthly basis.”

       

      4.           By
adding the following new Section 3.11 to the Agreement:

       

      
        
           

        

        
           

          
            

          

        

        
           

        

         

      

      “3.11   
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), 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 phrase “as soon as administratively practicable” in the last
sentence of each of Sections 5.1(a), 5.1(b), 5.2, 5.3, and 5.4 of the Agreement
and substituting therefor, in each case, the phrase “within thirty (30)
days”.

       

      6.           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.”

       

      7.           By
adding the following to the end of the existing Section 5.8 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.”

       

      8.           By
adding the following new Section 5.9 to the Agreement to read as
follows:

       

      “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
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/ H.B.
      Lipham, III	 
	 	 	 	 
	 	Title:	CEO	 


                  

                

              

            

          

        

      

      
         

        
          
            	 	
                    WGNB
      CORP.:

                  	 
	 	 	 	 
	 	 	 	 
	
                     

                  	
                    By:
      

                  	/s/
      H.B. Lipham, III	 
	 	  	 	 
	 	Title:	CEO	 
	 	 	 	 


          

        

         

        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        	 	EXECUTIVE:	 
	 	 	 	 
	 	 	 	 
	
                                                 

                                              	
                                                 

                                              	/s/ Mary
      M. Covington	 
	 	      
                                                Mary
      M. Covington

                                              	 


                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

           

           

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