EXHIBIT 10.3
EMPLOYMENT
AGREEMENT
THIS AGREEMENT is made as of the
day of
,
2008, by and between ATLANTIC SOUTHERN BANK, a bank organized under
the laws of the State of Georgia (the “Bank”) and GARY
HALL, a resident of the State of Georgia (the
“Executive”).
RECITALS:
The Bank employs the Executive as
Chief Lending Officer of the Bank pursuant to that certain
employment agreement dated November 7, 2001 (the “Prior
Employment Agreement”).
The parties to the Prior Employment
Agreement desire to amend and restate the Prior Employment
Agreement on the terms and conditions set forth herein.
In consideration of the above
premises and the mutual agreements hereinafter set forth, the
parties hereby agree as follows:
45.
Definitions . Whenever used in this Agreement, the
following terms and their variant forms shall have the meaning set
forth below:
45.1
“ Affiliate ” shall mean any business entity which controls
the Bank, is controlled by or is under common control with the
Bank.
45.2
“ Agreement ” shall mean this Agreement and any exhibits
incorporated herein together with any amendments hereto made in the
manner described in this Agreement.
45.3
“ Area ” shall mean the geographic area within the
boundaries of Bibb, Houston, Crawford, Peach, Effingham, McIntosh,
Glynn, Lowndes and Chatham Counties, Georgia and Duval County,
Florida. 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 Bank under this Agreement.
45.4
“ Business of the Bank ” shall mean the business conducted by the Bank,
which is the business of commercial banking.
45.5
“ Cause ” shall mean:
1.5.1
With respect to termination by the Bank:
(a)
A material breach of the terms of this Agreement by the Executive,
including, without limitation, failure by the Executive to perform
his duties and responsibilities in the manner and to the extent
required under this Agreement;
(b)
Conduct by the Executive that amounts to fraud, dishonesty or
willful misconduct in the performance of his duties and
responsibilities hereunder;
(c)
Arrest for, charged in relation to (by criminal information,
indictment or otherwise), or conviction of the Executive during the
Term of this Agreement of a crime involving breach of trust or
moral turpitude or any felony;
(d)
Conduct by the Executive that amounts to gross and willful
insubordination or inattention to his duties and responsibilities
hereunder; or
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(e)
Conduct by the Executive that results in removal from his position
as an officer or executive of the Bank pursuant to a written order
by any regulatory agency with authority or jurisdiction over the
Bank.
1.5.2
With respect to termination by the Executive, means one or more of
the following conditions which arises without the consent of the
Executive: a material diminution in the authority, responsibilities
or duties of the Executive hereunder or a material breach of the
terms of this Agreement by the Bank; provided, however, that for a
termination of employment by the Executive to be for Cause, the
Executive must give the Bank written notice of the event giving
rise to Cause within thirty (30) days following the occurrence of
the event, the event must remain uncured after the expiration of
thirty (30) days following the delivery of written notice of such
event to the Bank by the Executive, and the Executive must resign
effective immediately following the Bank’s failure to cure
the event.
45.6
“ Change of Control ” means any one of the following events which may
occur after the Original Effective Date:
(a)
the acquisition by any one person, or more than one person acting
as a group (other than any person or more than one person acting as
a group who is considered to own more than fifty percent (50%) of
the total fair market value or total voting power of the Holding
Company or the Bank prior to such acquisition) of stock of the
Holding Company or the Bank that, together with stock held by such
person or group, constitutes more than fifty percent (50%) of the
total fair market value or total voting power of the stock of the
Holding Company or the Bank, as applicable; provided, however, that
for purposes of this subsection, any acquisition described in
subsection (c) below shall not be deemed to be a Change of
Control;
(b)
within any twelve-month period (beginning on or after the Original
Effective Date) the date a majority of members of the board of
directors of the Holding Company is replaced by directors whose
appointment or election is not endorsed by a majority of the
members of the Holding Company’s board of directors before
the date of the appointment or election;
(c)
within any twelve-month period (beginning on or after the Original
Effective Date) the acquisition by any one person, or more than one
person acting as a group, of ownership of stock of the Holding
Company possessing forty percent (40%) or more of the total voting
power of the stock of the Holding Company; or
(d)
within any twelve-month period (beginning on or after the Original
Effective Date) the acquisition by any one person, or more than one
person acting as a group, of the assets of the Holding Company and
the Bank that have a total gross fair market value of eighty-five
percent (85%) or more of the total gross fair market value of all
of the assets of the Holding Company and the Bank immediately
before such acquisition or acquisitions; provided, however, that
transfers to the following entities or person(s) shall not be
deemed to result in a Change of Control under this subsection
(d):
(i)
an entity that is controlled by the shareholders of the Holding
Company or the Bank immediately after the transfer;
(ii)
a shareholder (determined immediately before the asset transfer) of
the Holding Company or the Bank in exchange for or with respect to
its stock;
(iii)
an entity, fifty percent (50%) or more of the total value or voting
power of which is owned, directly or indirectly, by the Holding
Company or the Bank;
(iv)
a person, or more than one person acting as a group, that owns,
directly or indirectly, fifty percent (50%) or more of the total
value or voting power of all the outstanding stock of the Holding
Company or the Bank; or
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(v)
an entity, at least fifty percent (50%) of the total value or
voting power of which is owned, directly or indirectly, by a person
described in the above subsection (d)(iv).
Notwithstanding the foregoing, no
Change of Control shall be deemed to have occurred for purposes of
this Agreement by reason of: (A) a merger, consolidation,
reorganization or other transaction as to which the holders of the
capital stock of the Holding Company before the transaction
continue after the transaction to hold, directly or indirectly
through a holding company or otherwise, shares of capital stock of
the Holding Company (or other surviving company) representing more
than fifty percent (50%) of the value or ordinary voting power to
elect directors of the capital stock of the Holding Company (or
other surviving company); or (B) any actions or events in
which the Executive participates in a capacity other than in the
Executive’s capacity as an employee, director or shareholder
of either the Holding Company or the Bank. For purposes of
this Section 1.6, persons will be considered to be acting as a
group if they are owners of a corporation that enters into a
merger, consolidation, purchase or acquisition of stock, or similar
business transaction with the Holding Company or the
Bank.
45.7
“ Code ” shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
45.8
“ Competing Business ” shall mean any business engaged in the Business
of the Bank.
45.9
“ Confidential Information ”
means data and information relating
to the Business of the Bank (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 the
Executive’s relationship to the Bank and which has value to
the Bank 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 Bank
(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.
45.10 “
Disability ” shall mean the inability of the Executive to
perform each of his material duties under this Agreement for the
duration of the short-term disability period under the Bank’s
policy then in effect, or, if no such policy is in effect, a period
of ninety (90) consecutive days. The Executive’s
Disability shall be certified by a physician chosen by the Bank and
reasonably acceptable to the Executive.
45.11 “
Disability Period ” means a period, beginning on the date the Bank
determines that the Executive is subject to a Disability and ending
on the earlier of the date the Executive begins receiving income
replacement benefits under any long term disability plan or policy
maintained by the Bank or the date that is three (3) months
after such determination, during which the Executive remains
subject to a Disability.
45.12 “
Effective Date ” shall mean the date set forth above as of which
the Agreement is executed.
45.13 “
Employer Information ” shall mean Confidential Information and Trade
Secrets.
45.14
“ Holding Company
” means the Bank’s parent, Atlantic Southern
Financial Group, Inc.
45.15 “
Initial Term ” shall mean that period of time commencing on the
Original Effective Date and running until the earlier of the close
of business on the last business day immediately preceding the
third anniversary of the Original Effective Date or any earlier
termination of employment of the Executive under this Agreement as
provided for in Section 3.
45.16
“ Original Effective
Date ” means:
(a)
with respect to events relating to the Bank, and for purposes of
Section 1.15 above, November 7, 2001; and
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(b)
with respect to events relating to the Holding Company, the date
immediately following the date of formation of the Holding
Company.
45.17 “
Separation from Service ” shall mean a termination of the
Executive’s employment with the Bank and all affiliated
companies that, together with the Bank, constitute the
‘service recipient’ within the meaning of Code
Section 409A and the regulations thereunder that constitutes a
‘separation from service’ within the meaning of Code
Section 409A and the regulations thereunder.
45.18 “
Term ” shall
mean the Initial Term and all subsequent renewal
periods.
45.19 “
Trade Secrets ” means Employer Information 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:
(a)
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
(b)
is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
46.
Duties .
46.1
Position .
The Executive is employed as the Chief Lending Officer of the Bank
and, subject to the direction of the President and Chief Executive
Officer of the Bank or his designee(s), shall perform and discharge
well and faithfully the duties which may be assigned to his from
time to time by the Bank in connection with the conduct of its
business.
46.2
Full-Time Status . In addition to the duties and
responsibilities specifically assigned to the Executive pursuant to
Section 2.1 hereof, the Executive shall:
(a)
devote substantially all of his time, energy and skill during
regular business hours to the performance of the duties of his
employment (reasonable vacations and reasonable absences due to
illness excepted) and faithfully and industriously perform such
duties;
(b)
diligently follow and implement all reasonable and lawful
management policies and decisions communicated to him by the
President and Chief Executive Officer of the Bank; and
(c)
timely prepare and forward to the President and Chief Executive
Officer of the Bank all reports and accountings as may be requested
of the Executive.
46.3
Permitted Activities . The Executive shall devote his entire
business time, attention and energies to the Business of the Bank
and shall not during the Term be engaged (whether or not during
normal business hours) in any other business or professional
activity, whether or not such activity is pursued for gain, profit
or other pecuniary advantage; but this shall not be construed as
preventing the Executive from:
(a)
investing his personal assets in businesses which are not Competing
Businesses (subject to clause (b) below) and which will not
require any services on the part of the Executive in their
operation or affairs and in which his participation is solely that
of an investor;
(b)
purchasing securities in any corporation whose securities are
regularly traded provided that such purchase shall not result in
him collectively owning beneficially at any time five percent (5%)
or more of the equity securities of any Competing Business;
and
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(c)
participating in civic and professional affairs and organizations
and conferences, preparing or publishing papers or books or
teaching so long as the President and Chief Executive Officer
approves in writing of such activities prior to the
Executive’s engaging in them.
47.
Term and Termination .
47.1
Term . This Agreement shall
remain in effect for the Term. While this Agreement remains
in effect, at the end of the Initial Term and at the end of any
twelve-month extension thereof, this Agreement shall automatically
be extended for a successive twelve-month period unless either
party gives written notice to the other of its or his intent not to
extend this Agreement with such written notice to be given not less
than sixty (60) days prior to the end of the Initial Term or such
twelve-month period. In the event such notice of
non-extension is properly given, this Agreement shall terminate at
the end of the remaining Term then in effect.
47.2
Termination . During the Term, the employment of the
Executive under this Agreement may be terminated only as
follows:
47.2.1
By the Bank:
(a)
For Cause, upon written notice to the Executive pursuant to
Section 1.5.1;
(b)
Without Cause at any time; or
(c)
