Exhibit 10.5
FIRST AMENDMENT TO
THE
ATLANTIC SOUTHERN
BANK
EXECUTIVE BONUS
AGREEMENT
THIS FIRST AMENDMENT is made as of
the day of December, 2008, by
and between Atlantic Southern Bank, a commercial state-chartered
bank located in Macon, Georgia (the “Company”)
(formerly known as “New Southern Bank”) and Brandon L.
Mercer (the “Executive”).
The Atlantic Southern Bank Executive
Bonus Agreement (the “Agreement”), originally entered
into on January 1, 2005 by the Company and the Executive, is
an unfunded obligation providing the Executive with a bonus
opportunity.
The Company now desires to amend the
Agreement, effective as of January 1, 2009, to conform the
provisions of the Agreement to the requirements under
Section 409A of the Internal Revenue Code and the regulations
and rulings promulgated thereunder since the addition of
Section 409A to the Internal Revenue Code.
NOW, THEREFORE, the Company does
hereby amend the Agreement, effective as of January 1, 2009,
to read as follows:
1.
By deleting Section 1.5 in its
entirety and by substituting therefor the following:
“1.5
‘ Change of Control
’ means any one of the following events occurring on or after
January 1, 2009:
(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 voting power of Atlantic
Southern Financial Group, Inc. or the Company prior to such
acquisition) of stock of Atlantic Southern Financial
Group, Inc. or the Company that, together with stock held by
such person or group, constitutes forty percent (40%) or more of
the total voting power of the stock of Atlantic Southern Financial
Group, Inc. or the Company (as applicable);
(b)
within any twelve-month period
(beginning on or after January 1, 2009) the persons who were
directors of Atlantic Southern Financial Group, Inc.
immediately before the beginning of such twelve-month period (the
‘Incumbent Directors’) shall cease to constitute at
least a majority of members of such board of directors; provided
that any director who was not a director as of January 1, 2009
Date shall be deemed to be an Incumbent Director if that director
were elected to such board of directors by, or on the
recommendation of or with the approval of, at least two-thirds of
the directors who then qualified as Incumbent Directors;
or
(c)
within any twelve-month period
(beginning on or after January 1, 2009) the acquisition by any
one person, or more than one person acting as a group, of the
assets of Atlantic Southern Financial Group, Inc. and the
Company 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 Atlantic Southern Financial Group, Inc. and
the Company 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 (c):
(i)
an entity that is controlled by the
shareholders of Atlantic Southern Financial Group, Inc. and
the Company, as applicable, immediately after the
transfer;
(ii)
a shareholder (determined
immediately before the asset transfer) of Atlantic Southern
Financial Group, Inc. and the Company, 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 Atlantic Southern Financial Group, Inc. and
the Company, 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 Atlantic Southern Financial Group, Inc.
and the Company, 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 (c)(iv).
Notwithstanding the foregoing, no
Change of Control shall be deemed to have occurred for purposes of
this Section 1.5 by reason of a merger, consoli
