This Employment Agreement involves
Title: EMPLOYMENT AGREEMENT
Governing Law: Georgia Date: 1/19/2006
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”).
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
(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.
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.
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
within six (6) months following a Change in Control, the Executive, or in the event of his subsequent death, his designated beneficiaries or his estate, as the case may be, shall receive, as liquidated damages, in lieu of all other claims, a severance payment equal to one (1) times the Executive’s then current Base Salary, to be paid in full on the last day of the month following the date of termination. In no event shall the payment(s) described in this Section 3.3 exceed the amount permitted by Section 280G of the Internal Revenue Code, as amended (the “Code”). Therefore, if the aggregate present value (determined as of the date of the Change of Control in accordance with the provisions of Section 280G of the Code) of both the severance payment and all other payments to the Executive in the nature of compensation which are contingent on a change in ownership or effective control of the Bank or in the ownership of a substantial portion of the assets of the Bank (the “Aggregate Severance”) would result in a “parachute payment,” as defined under Section 280G of the Code, then the Aggregate Severance shall not be greater than an amount equal to 2.99 multiplied by Executive’s “base amount” for the “base period, “as those terms are defined under Section 280G. In the event the Aggregate Severance is required to be reduced pursuant to this Section 3.3, the Executive shall be entitled to determine which portions of the Aggregate Severance are to be reduced so that the Aggregate Severance satisfies the limit set forth in the preceding sentence. Notwithstanding any provision in this Agreement, if the Ex