Exhibit 10.18
FIRST AMENDMENT TO
EMPLOYMENT
AGREEMENT
This First Amendment to the
Employment Agreement by and among Citizens Bancshares Corporation,
a bank holding company organized under the laws of the State of
Georgia (“CBC”); Citizens Trust Bank, the wholly-owned
bank subsidiary of CBC (collectively, the “Employer”);
and James E. Young, (the “Executive”) is entered into
on this day of December,
2008.
W I T N E S S E T
H
WHEREAS, the parties entered into
that certain employment agreement dated January 30, 1998 (the
“Agreement”) as modified by Sections 3(d) and 8 of
that certain Change in Control Agreement between CBC and the
Executive dated December 1, 2005.
WHEREAS, the parties desire to amend
the Agreement to comply with the final regulations issued under
Internal Revenue Code Section 409A.
NOW, THEREFORE, in consideration of
the mutual covenants contained herein, the parties hereto agree,
effective as of the date first written above, to amend the
Agreement as follows:
1.
By deleting Section 1.7 in its
entirety and substituting therefor the following:
“1.7
‘ Change in Control
’ means any one of the following events which may occur after
January 30, 1998:
(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 of the stock
of CBC prior to such acquisition), of stock of the CBC 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 CBC;
(b)
within any twelve-month period
(beginning on or after January 30, 1998) the date a majority
of members of CBC’s board of directors is replaced by
directors whose appointment or election is not endorsed by a
majority of the members of CBC’s board of directors before
the date of the appointment or election;
(c)
within any twelve-month period
(beginning on or after January 30, 1998) the acquisition by
any one person, or more than one person acting as a group, of
ownership of stock of CBC possessing thirty percent (30%) or more
of the total voting power of the stock of CBC;
(d)
within any twelve-month period
(beginning on or after January 1, 1998) the acquisition by any
one person, or more than one person acting as a group,
of the assets of the Employer, 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 Employer, 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 in Control under this subsection (d):
(i)
an entity that is controlled by the
shareholders of CBC or Citizens Trust Bank, as applicable,
immediately after the transfer;
(ii)
a shareholder (determined
immediately before the asset transfer) of CBC or Citizens Trust
Bank, as applicable, 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 CBC or Citizens Trust Bank, as
applicable;
(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 CBC or Citizens Trust Bank, as applicable;
or
(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).
For purposes of this
Section 1.7, 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 CBC or Citizens Trust Bank, as
applicable. Notwithstanding the foregoing, no Change in
Control shall be deemed to have occurred for purposes of this
Agreement by reason of any actions or events in which the Executive
participates in a capacity other than in the Executive’s
capacity as an employee or director of CBC or Citizens Trust Bank
or as a shareholder of CBC.”
2.
By deleting Section 1.10 in its
entirety and substituting therefor the following:
“1.10
‘ Good Reason ’
shall mean, with respect to termination by the Executive,
either:
(a)
a material diminution in the
Executive’s authority, responsibilities or duties;
or
(b)
a material breach of the terms of
this Agreement by the Employer;
provided, however, that for a
termination of employment by the Executive to be for Good Reason,
the Executive must notify the Employer in writing of the
event
2
giving rise to Good Reason within
thirty (30) days following the occurrence of the event (or if later
the Executive’s knowledge of occurrence of the event) and the
event must remain uncured after the expiration of thirty (30) days
following the delivery of written notice of such event to the
Employer by the Executive.”
3.
By adding the following new
Section 1.10A:
“1.10A
‘ Termination of
Employment ’ shall mean a termination of the
Executive’s employment that constitutes a separation from
service under Treas. Reg.
Section 1.409A-1(h).”
4.
By deleting Section 4.1.2 in
its entirety and substituting therefor the following
“4.1.2
Without Cause at any time, provided
that the Employer shall give the Executive sixty (60) days’
prior written notice of its intent to terminate, in which event, if
the termination constitutes a Termination of Employ
