Exhibit 10.4
FIRST AMENDMENT TO
EMPLOYMENT
AGREEMENT
THIS AMENDMENT (“Amendment”), made
and entered into as of December 11, 2008 (the “Effective
Date”) by and among Daniel W. Brinks, a resident of the State
of Georgia (“Employee”), SouthCrest Financial Group,
Inc. (f/k/a Upson Bankshares, Inc.), a Georgia corporation
(“SouthCrest”), and Bank of Upson, a financial
institution organized under the laws of the State of Georgia
(“Bank”) (collectively, SouthCrest and Polk are the
“Employer”).
W I T N E S S E T H:
WHEREAS, Employer currently employs Employee as
Chairman and Chief Operating Officer of SouthCrest and the
President and Chief Executive Officer of Bank pursuant to that
certain employment agreement between Employer and Employee dated
September 29, 2004 (the “Employment
Agreement”);
WHEREAS, Employer and Employee desire to
continue such employment;
WHEREAS, Employer and Employee now desire to
revise the Employment Agreement to reflect the change in the name
of “Upson Bankshares, Inc.” to “SouthCrest
Financial Group, Inc.”; and
WHEREAS,
Employer and Employee also desire to amend the Employment Agreement
primarily so that the payments and benefits under the Employment
Agreement comply with, or are exempt from, the rules of Section
409A of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the
continued employment of Employee by Employer, of the premises and
the mutual promises and covenants contained herein, and of other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be
legally bound, agree to modify the Employment Agreement as follows,
effective as of January 1, 2009:
1.
By substituting each reference to
“Upson Bankshares, Inc.” with a reference to
“SouthCrest Financial Group, Inc.” and each reference
to “Upson” with a reference to “SouthCrest”
wherever such references appear in the Employment
Agreement.
2.
By adding the following
to the end of the existing Section 4:
“All
reimbursements shall be paid as soon as administratively
practicable, but in no event shall any reimbursement be paid after
the last day of the taxable year following the taxable year in
which the expense was incurred, nor shall the amount of
reimbursable expenses incurred or in-kind benefits provided in one
taxable year affect the expenses eligible for reimbursement or the
in-kind benefits provided, as applicable, in any other taxable
year. The right to a reimbursement or an in-kind benefit
under this Agreement will not be subject to liquidation or exchange
for another benefit.”
3.
By deleting the existing
Section 12.5 and substituting therefor the following:
“12.5 If
this Agreement and Employee’s employment are terminated
either (i) by the Employer at any time for any reason other than
for Cause or (ii) by Employee upon the Employer’s breach of
this Agreement; then Employer, as Employer’s sole remaining
obligation under this Agreement, shall: (i) pay Employee’s
Base Salary to Employee for the remaining months of the term of
this Agreement in substantially equal monthly installments
beginning with the month following the month of Employee’s
termination of employment at the Base Salary rate then in effect;
and (ii) reimburse Employee for the cost of COBRA health
continuation coverage for Employee for the lesser of (a) the
remaining term of this Agreement, or (b) the period during which
Employee is entitled to COBRA health continuation coverage from the
Employer, provided that, in either case, Employee must elect such
coverage and pay the applicable premium.”
4.
By adding the
following immediately following the phrase “pursuant to
Section 12.4” in Section 12.6: “, or for any reason
other than pursuant to Section 12.2,”.
5.
By adding the following new Section
12.7:
“12.7 Notwithstanding
anything in this Agreement to the contrary (i) Employee shall be
treated as having incurred a termination of employment hereunder,
and shall be entitled to payments and benefits under Section 12.5
or 15.3, as applicable,
