FIRST AMENDMENT TO EMPLOYMENT
AGREEMENT
THIS FIRST
AMENDMENT is made on this 31st day of December, 2008, by and
between Georgia Bank & Trust Company of Augusta (the
“Bank” or the “Employer”), a state bank
organized under the laws of the State of Georgia, and Darrell R.
Rains, a resident of the State of South Carolina (the
“Executive”) (hereinafter from time to time
collectively referred to as the “Parties”).
WHEREAS, the
Parties established the existing employment relationship by
executing an Employment Agreement dated April 30, 2007 (the
“Agreement”);
WHEREAS, the
Parties now desire to amend the Agreement to comply with
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), and the final Treasury Regulations issued
thereunder;
NOW, THEREFORE, in
consideration of the mutual agreements hereinafter set forth, the
Parties hereby agree to amend the Agreement, effective
January 1, 2009, as follows:
1. By
deleting Section 1.6 in its entirety and substituting therefor
the following:
“ 1.6
‘ Change of Control ’ means any of the
following events:
(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 Company or the
Bank prior to such acquisition), of stock of the Company or the
Bank that, together with stock held by such person or group,
constitutes more than fifty percent (50%) of the total voting power
of the stock of the Company or the Bank, as applicable; provided,
however, that the current and future holdings of any person who is
a shareholder of the Company or the Bank as of the Effective Date
shall be disregarded in determining whether the fifty percent (50%)
threshold has been attained;
(b) within any
twelve-month period (beginning on or after the Effective Date) the
date a majority of members of the board of directors of the Company
is replaced by directors whose appointment or election is not
endorsed by a majority of the members of the Company’s board
of directors before the date of the appointment or
election;
(c) within any
twelve-month period (beginning on or after the Effective Date) the
acquisition by any one person, or more than one person acting as a
group, of ownership of stock of the Company possessing fifty
percent (50%) or more of the total voting power of the stock of the
Company; or
(d) within any
twelve-month period (beginning on or after the Effective Date) the
acquisition by any one person, or more than one person acting as a
group, of the assets of the 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 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 Company or the Bank
immediately after the transfer;
(ii) a shareholder
(determined immediately before the asset transfer) of the 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 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 Company or the
Bank; 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).
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 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 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 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 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
merg
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