Exhibit 10.11
CITIZENS BANCSHARES
CORPORATION
CHANGE IN CONTROL
AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT
(the “Agreement”) is made as of this 1 day of December,
2005 by and between Roger Botwin (the “Executive”) and
CITIZENS BANCSHARES CORPORATION, a corporation organized under the
laws of the State of Georgia (the
“Company”).
RECITALS:
WHEREAS, the Executive is currently
employed by the Company and/or one or more of its affiliates as the
Executive Vice President/Chief Credit Officer; and
WHEREAS, the Company desires to
enter into an agreement with the Executive to provide change in
control benefits to the Executive upon the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of
the mutual covenants herein contained, the parties agree as
follows:
1.
Definitions . For purposes of this Agreement, the
following terms and conditions shall have the meanings set forth in
this Section 1:
(a)
“ Area ” means the geographic area within the
boundaries of Fulton and Dekalb Counties in the State of Georgia.
It is the express intent of the parties that the Area as defined
herein is the area where the Executive performs services on behalf
of the Company and its affiliates as of the Effective
Date.
(b)
“ Board of Directors ” means the Board of
Directors of the Company.
(c)
“ Business of the Company ” means the business
of commercial banking.
(d)
“ Cause ” means the occurrence of any of the
following events:
(i)
material dishonesty, gross negligence or willful misconduct by
Executive in the performance of his duties hereunder which conduct
results in material financial or reputational harm to the Company
or its affiliates;
(ii)
conviction (from which no appeal may be, or is, timely taken) of
Executive of a felony;
(iii)
initiation of suspension or removal proceedings against Executive
by federal or state regulatory authorities acting under lawful
authority pursuant to provisions of federal or state law or
regulation which may be in effect from time to time;
(iv)
knowing violation by Executive of federal or state banking laws or
regulations; or
(v)
refusal by Executive to perform a duly authorized and lawful
written directive of the Chief Executive Officer of the Company or
the President of the Bank.
(e)
“ Change in Control ” means the occurrence of
any of the following events on or after the Effective
Date:
(i)
the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) (a
“Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of voting
securities of the corporation where such acquisition causes such
person to own more than fifty percent (50%) of the combined voting
power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors;
or
(ii)
individuals who as of the Effective Date hereof, constitute the
Board of Directors of the Company (the “Incumbent
Board”) cease for any reason to constitute at least a
majority of such Board of Directors; provided, however, that any
individual becoming a director subsequent to the Effective Date
hereof whose election, or nomination for election by the
Company’s shareholders, was approved by a vote of at least
two-thirds of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member such
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of
an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board or Directors; or
(iii)
a reorganization, merger or consolidation, (a “Business
Combination”) with respect to which persons who were the
owners of the Company immediately prior to such Business
Combination do not, immediately thereafter, own, directly or
indirectly, more than fifty percent (50%) of the then outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors of the corporation resulting from such
Business Combination (including, without limitation, a corporation
that as a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or
through one or more subsidiaries);
(iv)
the sale, transfer or assignment of all or substantially all of the
assets of the Company and its affiliates to any third party;
or
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(v)
a complete liquidation or dissolution of the Company.
(f)
“ Code ” means the Internal Revenue Code of
1986, as amended.
(g)
“ Confidential Information ” means data and
information relating to the business of the Company (which does not
rise to the status of a Trade Secret) which is or has been
disclosed to the Executive or of which the Executive became aware
as a consequence of or through its relationship to the Company and
which has value to the Company and is not generally known to its
competitors. Confidential Information shall not include any data or
information that has been voluntarily disclosed to the public by
the Company (except where such public disclosure has been made by
the Executive without authorization) or that has been independently
developed and disclosed by others, or that otherwise enters the
public domain through lawful means.
(h)
“ Disability ” means a condition for which
benefits would be payable under any long-term disability coverage
(without regard to the application of any elimination period
requirement) then provided to the Executive by the Company or, if
no such coverage is then being provided, the inability of the
Executive to perform the material aspects of the Executive’s
duties of employment for a period of at least one hundred eighty
(180) consecutive days as certified by a physician chosen by the
Executive and reasonably acceptable to the Company.
(i)
“ Effective Date ” means the date on which this
Agreement is made as evidenced above.
(j)
“ Good Reason ” means the occurrence of any of
the following events and which is not corrected by the Company
within thirty (30) days after the Executive’s written notice
to the Company or one of its affiliates of the same:
(i)
a material diminution in the Executive’s responsibilities or
duties in effect immediately prior to the effective date of the
Change in Control;
(ii)
a material reduction in the Executive’s base salary,
incentives and/or benefits in effect immediately prior to the
effective date of a Change in Control;
(iii)
elimination of benefit or incentive programs in which the Executive
participates without availability of comparable replacement
programs; or
(iv)
a change of the location of the Executive’s place of
employment to more than fifty (50) miles from the Executive’s
principal business office as of the effective date of a Change in
Control.
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(k)
“ Termination of Employment ” means the
Executive’s termination of employment, for any reason, from
the Company and all affiliates. Notwithstanding the foregoing, an
event shall not be deemed to be a Termination of Employment if it
would not qualify as a “separation from service”
pursuant to Code Section 409A and the regulations promulgated
thereunder.
(l)
“ Specified Employee ” shall mean a key
employee (as defined in Code Section 416(i) without regard to Code
Section 416(i)(5)) of the Company (or an entity which is considered
to be single employer with the Company under Code Section 414(b) or
414(c)) at any time during the twelve (12) month period ending on
December 31. Notwithstanding the foregoing, any employee who
is a key employee determined under the preceding sentence will be
deemed to be a Specified Employee solely for the period of April 1
through March 31 following such December 31 or as otherwise
required by the Code Section 409A and the regulations promulgated
thereunder.
(m)
“ Trade Secrets ” means information,
without regard to form, including, but not limited to, technical or
nontechnical data, formulas, patterns, compilations, programs,
devices, methods, techniques, drawings, processes, financial data,
financial plans, product plans or lists of actual or potential
customers or suppliers which (i) derives economic value,
actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who
can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
2.
Term . This Agreement shall become effective as of
the Effective Date and shall remain in effect until the effective
date of the Executive’s Termination of Employment; provided,
however, if a Change in Control occurs prior to the
Executive’s Termination of Employment, this Agreement shall
remain in effect for two (2) years following the effective date of
such Change in Control.
3.
Severance Benefits Upon
Termination of Employment .
(a)
Amount of Severance Benefits . If, within three (3) months
before or two (2) years following a Change in Control, the
Executive experiences a Termination of Employment due to either (i)
an involuntarily termination by the Company or one of its
affiliates without Cause or (ii) a resignation by the Executive for
Good Reason (no later than six (6) months after the occurrence of
the most recent event constituting Good Reason), the Company shall
pay to the Ex
