Exhibit 10.9
FIRST AMENDMENT TO
EMPLOYMENT
AGREEMENT
THIS AMENDMENT (“Amendment”), made
and entered into as of December 9, 2008 (the “Effective
Date”) by and among Larry T. Kuglar, a resident of the State
of Georgia (“Employee”), SouthCrest Financial Group,
Inc. (f/k/a Upson Bankshares, Inc. which was f/k/a First Polk
Bankshares, Inc.), a Georgia corporation
(“SouthCrest”), and The First National Bank of Polk
County, a national banking association (“Bank”)
(collectively, SouthCrest and Bank are the
“Employer”).
W I T N E S S E T H:
WHEREAS, Employer currently employs Employee as
the President and Chief Executive 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;
(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; and (iii) pay to Employee the cost for term
life insurance coverage provided by the Employer to the 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
in an amount not to exceed the monthly cost of premiums for such
coverage in effect on the effective date of
termination.”
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:
