Exhibit 10.1
EMPLOYMENT
AGREEMENT
THIS AGREEMENT is made as of the 1
st day of December , 2001, by and between NEW
SOUTHERN BANK (the “Bank”), a proposed state bank being
organized under the laws of the State of Georgia; and MARK A.
STEVENS, a resident of the State of Georgia (the
“Executive”).
RECITALS:
The Bank desires to employ the
Executive as President and Chief Executive Officer of the Bank and
the Executive desires to accept such employment.
In consideration of the above
premises and the mutual agreements hereinafter set forth, the
parties hereby agree as follows:
1.
Definitions
. Whenever used in this Agreement, the following
terms and their variant forms shall have the meaning set forth
below:
1.1
“ Agreement
” shall mean this
Agreement and any exhibits incorporated herein together with any
amendments hereto made in the manner described in this
Agreement.
1.2
“ Area
” shall mean the
geographic area within the boundaries of Bibb, Jones, Monroe,
Crawford, Twiggs, Houston and Peach Counties, 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
Bank under this Agreement.
1.3
“ Bank Information
” means
Confidential Information and Trade Secrets.
1.4
“ Business of the
Bank ” shall
mean the business conducted by the Bank, which is the business of
commercial banking.
1.5
“ 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,
which remains uncured after the expiration of thirty (30) days
following the delivery of written notice of such breach to the
Executive by the Bank. Such notice shall (i) specifically
identify the duties that the Board of Directors of the Bank
believes the Executive has failed to perform, (ii) state the
facts upon which the Board of Directors of the Bank made such
determination, and (iii) be approved by a resolution passed by
two-thirds (2/3) of the directors then in office;
(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
(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, a material diminution in the powers, responsibilities or
duties of the Executive hereunder or a material breach of the terms
of this Agreement by the Bank, which remains uncured after the
expiration of thirty (30) days following the delivery of written
notice of such breach to the Bank by the Executive.
1.6
“ Change of Control
” means any one of
the following events:
(a)
the acquisition by any person or
persons acting in concert of the then outstanding voting securities
of the Bank, if, after the transaction, the acquiring person (or
persons) owns, controls or holds with power to vote forty percent
(40%) or more of any class of voting securities of the
Bank;
(b)
within any twelve-month period
(beginning on or after the Effective Date) the persons who were
directors of the Bank immediately before the beginning of such
twelve-month period (the “Incumbent Directors”) shall
cease to constitute at least a majority of the Board of Directors;
provided that any director who was not a director as of the
Effective Date shall be deemed to be an Incumbent Director if that
director were elected to the Board of Directors of the Bank by, or
on the recommendation of or with the approval of, at least
two-thirds of the directors who then qualified as Incumbent
Directors; and provided further that no director whose initial
assumption of office is in connection with an actual or threatened
election contest (as such terms are used in Rule 14a-ll of
Regulation 14A promulgated under the Securities Exchange Act of
1934) relating to the election of directors shall be deemed to be
an Incumbent Director;
(c)
a reorganization, merger or
consolidation, with respect to which persons who were the
stockholders of the Bank immediately prior to such reorganization,
merger or consolidation do not, immediately thereafter, own more
than fifty percent (50%) of the combined voting power entitled to
vote in the election of directors of the reorganized, merged or
consolidated company’s then outstanding voting securities;
or
2
(d)
the sale, transfer or assignment of
all or substantially all of the assets of the Bank to any third
party.
1.7
“ 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.
1.8
“ 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 180 consecutive days) as certified
by a physician chosen by the Bank and reasonably acceptable to the
Executive.
1.9
“ Effective Date
” shall mean
December 1,2001.
1.10
“ Initial Term
” shall mean that
period of time commencing on the Effective Date and running until
the earlier of the close of business on the last business day
immediately preceding the third anniversary of the Effective Date
or any earlier termination of employment of the Executive under
this Agreement as provided for in Section 3.
1.11
“ Term
” shall mean the
Initial Term and all subsequent renewal periods.
1.12
“ Trade Secrets
” means Bank
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.
2.
Duties
.
2.1
Position
. The Executive is employed initially as President
and Chief Executive Officer of the Bank, subject to the direction
of the Board of Directors of the Bank or its designee(s), shall
perform and discharge well and faithfully the duties which may be
assigned to him from time to time by the Bank in connection with
the conduct of its business. The duties and responsibilities of the
Executive are set forth on Exhibit A attached
hereto.
3
2.2
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 Board of Directors of the Bank;
and
(c)
timely prepare and forward to the
Board of Directors of the Bank all reports and accountings as may
be requested of the Executive.
2.3
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 (subject to clause (b) below) are not in
competition with the Business of the Bank 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 business in competition with the Business of the
Bank; and
(c)
participating in civic and
professional affairs and organizations and conferences, preparing
or publishing papers or books or teaching so long as the Board of
Directors of the Bank approves of such activities prior to the
Executive’s engaging in them.
3.
Term and
Termination .
3.1
Term
. This Agreement shall remain in effect for the
Initial Term. At the end of the Initial Term and at the end of each
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 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.
4
3.2
Termination
. During the Term, the employment of
the Executive under this Agreement may be terminated only as
follows:
3.2.1
By the Bank:
(a)
For Cause, upon written notice to
the Executive pursuant to Section 1.5.1 hereof, where the
notice has been approved by a resolution passed by two- thirds
(2/3) of the directors of the Bank then in office, in which event
the Bank shall have no further obligation to the Executive except
for the payment of any amounts due and owing under Section 4
on the effective date of termination;
(b)
Without Cause at any time, provided
that the Bank shall give the Executive thirty (30) days’
prior written notice of its intent to terminate, in which event the
Bank shall be required to continue to meet its obligations to the
Executive under Section 4.1 for twelve (12) months;
or
(c)
Upon the Disability of Executive at
any time, provided that the Bank shall give the Executive thirty
(30) days’ prior written notice of its intent to terminate,
in which event, the Bank shall be required to continue to meet its
obligations under Section 4.1 for six (6) months
following the termination or until the Executive begins receiving
payments under the Bank’s long-term disability policy,
whichever occurs first.
3.2.2
By the Executive:
(a)
For Cause, in which event the Bank
shall be required to continue to meet its obligations under
Section 4.1 for twelve (12) months; or
(b)
Without Cause or upon the Disability
of the Executive, provided that the Executive shall give the Bank
sixty (60) days’ prior written notice of his intent to
terminate, in which event the Bank shall have no further obligation
to the Executive except future payment of any amounts due and owing
under Section 4 on the effective date of the
termination.
3.2.3
At any time upon mutual, written
agreement of the parties, in which event the Bank shall have no
further obligation to the Executive except for the payment of any
amounts due and owing under Section 4 of this Agreement on the
effective date of termination unless otherwise set forth in the
written agreement.
3.2.4
Notwithstanding anything in this
Agreement to the contrary, the Term shall end automatically upon
the Executive’s death, in which event the Bank shall have no
further obligation to the Executive except for the payment of any
amounts due and owing under Section 4 on the effective date of
termination.
3.3
Change of
Control . If
the Executive terminates his employment with the Bank under this
Agreement for Cause or the Bank terminates Executive’s
employment without Cause
5
within six (6) months following
a Change in Control, the Executive, or in the event of his
subseque
