Exhibit 10.1


 


EMPLOYMENT AGREEMENT


 


THIS AGREEMENT is made as of the 1st 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


 


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(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.


 


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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.


 


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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


 


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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 Executive may exercise his right to
terminate employment under this Section 3.3 or under Section 3.2.2(a),
the Executive may choose which provision shall be applicable.


 


4.                                     Compensation. The Executive shall receive the following
salary and benefits:


 


4.1                               Base Salary.  During
the Initial Term, the Executive shall be compensated at an annual base rate of
$125,000 (the “Base Salary”). The Executive’s Base Salary shall be reviewed by
the Board of Directors of the Bank at least annually, and the Executive shall
be entitled to receive annually an increase in such amount, if any, as may be determined by the Board of
Directors of the Bank based on its evaluation of Executive’s performance. Base
Salary shall be payable in accordance with the Bank’s normal payroll practices.


 


4.2                               Commencement Bonus.   The Executive shall receive a cash bonus if the Bank opens for business
on or before December 31, 2001. The amount of any bonus will be based upon
the date the Bank opens for business according to the following schedule:


 


	
  Opening Date

  	
   

  	
  Bonus

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Any
  date prior to November 15, 2001

  	
   

  	
  $

  	
  20,000

  	
   

  
	
  November 15,
  2001 to November 30, 2001

  	
   

  	
  $

  	
  15,000

  	
   

  
	
  December 1,
  2001 to December 14, 2001

  	
   

  	
  $

  	
  10,000

  	
   

  
	
  December 15,
  2001 to December 31, 2001

  	
   

  	
  $

  	
  5,000

  	
   

  



 


The Executive shall receive
no bonus under this Section 4.2 if the Bank opens for business on or after
January 1, 2001. The Bank shall pay the Executive any bonus earned under
this Section 4.2 in a lump sum within thirty (30) days following the date
the Bank opens for business.


 


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4.3                               Incentive Compensation. The Executive shall be entitled to annual
bonus compensation, if any, as determined by the Board of Directors of the Bank
pursuant to any incentive compensation program as may be adopted from time to
time by the Bank.


 


4.4                               Stock Options. The Bank will establish a stock incentive
plan and will grant to the Executive pursuant to such stock incentive plan an
incentive stock option to purchase, at a per share purchase price equal to
$10.00, two percent (2%) of the shares of the Bank’s common stock sold in the
Bank’s initial public offering. The option generally will become vested and
exercisable in twenty percent (20%) increments, commencing on the first
anniversary of the option grant date and continuing for the next four
successive anniversaries; provided, however, that, subject to such restrictions
as may be imposed by the Bank’s primary regulator, the option shall be fully
vested and exercisable upon a Change in Control of the Bank or a termination of
the Executive’s employment by the Executive for Cause or by the Bank without
Cause. The option shall expire generally upon the earlier of three (3) months
following termination of employment or upon the tenth anniversary of the option
grant date. The incentive stock option will be issued by the Bank pursuant to
its stock incentive plan and subject to the terms of a related stock option
agreement.


 


4.5                               Health Insurance. The Bank shall reimburse the Executive for
the cost of premium payments paid by the Executive for the Executive’s current
health insurance covering the Executive and the members of his immediate family
until the first to occur of the following:


 


(a)                                 such time as the Bank adopts a health
insurance plan for its employees; or


 


(b)                                twelve (12) months after the date of this Agreement.


 


4.6                               Automobile.  Beginning as of the Effective Date, the Bank will provide the Executive
with an automobile to be used by the Executive for business and personal
purposes. The make and model of the automobile shall be determined by the Bank.
The Bank will pay expenses associated with the operation, maintenance, repair
and insurance for the automobile.


 


4.7                               Business Expenses;
Memberships. The Bank
specifically agrees to reimburse the Executive for:


 


(a)                                reasonable and necessary business (including
travel) expenses incurred by him in the performance of his duties as approved
by the Board of Directors of the Bank; and


 


(b)                               reasonable dues and business related
expenditures associated with memberships, as selected by the Executive,
including country clubs and professional associations which are commensurate
with his position;


 


provided, however, that the Executive shall, as a condition of any
reimbursement, submit verification of the nature and amount of such expenses in
accordance with reimbursement policies from time to time adopted by the Bank
and in sufficient detail to comply with rules and regulations promulgated
by the Internal Revenue Service.


 


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4.8                               Vacation. On a non-cumulative basis, the Executive
shall be entitled to three (3) weeks of vacation in each successive
twelve-month period during the Term, during which his compensation shall be
paid in full.


 


4.9                               Benefits.  In addition to the benefits specifically described in this Agreement,
the Executive shall be entitled to such benefits as may be available from time
to time to executives of the Bank similarly situated to the Executive. All such
benefits shall be awarded and administered in accordance with the Bank’s
standard policies and practices. Such benefits may include, by way of example
only, profit-sharing plans, retirement or investment funds, dental, health,
life and disability insurance benefits and such other benefits as the Bank
deems appropriate.


 


4.10                        Withholding.  The Bank may deduct from each payment of compensation hereunder all
amounts required to be deducted and withheld in accordance with applicable
federal and state income, FICA and other withholding requirements.


 


5.                                      Bank Information.


 


5.1                              Ownership of Bank
Information.  All Bank Information received or developed by
the Executive while employed by the Bank will remain the sole and exclusive
property of the Bank.


 


5.2                              Obligations of the Executive.  The Executive agrees:


 


(a)                                  to hold Bank Information in strictest
confidence;


 


(b)                                 not to use, duplicate, reproduce, distribute,
disclose or otherwise disseminate Bank Information or any physical embodiments
of Bank Information; and


 


(c)                                  in any event, not to take any action causing
or fail to take any action necessary in order to prevent any Bank Information
from losing its character or ceasing to qualify as Confidential Information or
a Trade Secret.


 


In the event that the Executive is required by law to disclose any Bank
Information, the Executive will not make such disclosure unless (and then only
to the extent that) the Executive has been advised by independent legal counsel
that such disclosure is required by law and then only after prior written
notice is given to the Bank when the Executive becomes aware that such
disclosure has been requested and is required by law. This Section 5 shall
survive for a period of twelve (12) months following termination of this
Agreement for any reason with respect to Confidential Information, and shall
survive termination of this Agreement for any reason for so long as is
permitted by applicable law, with respect to Trade Secrets.


 


5.3                               Delivery upon Request or
Termination. Upon request by the
Bank, and in any event upon termination of his employment with the Bank, the
Executive will promptly deliver to the Bank all property belonging to the Bank,
including, without limitation, all Bank Information then in his possession or
control.


 


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6.                                      Non-Competition.  The Executive agrees that during his employment by the Bank hereunder
and, in the event of his termination:


 


•            by the Bank for Cause pursuant to Section 3.2.1
(a),


•            by the Executive without Cause pursuant to Section 3.2.2(b),
or


•            by the Executive in connection with a Change
of Control pursuant to Section 3.3,


 


for
a period of twelve (12) months thereafter, he will not (except on behalf of or
with the prior written consent of the Bank), within the Area, either directly
or indirectly, on his own behalf or in the service or on behalf of others, as
an executive employee or in any other capacity which involves duties and
responsibilities similar to those undertaken for the Bank (including as an
organizer or proposed executive officer of a new financial institution), engage
in any business which is the same as or essentially the same as the Business of
the Bank.


 


7.                                      Non-Solicitation of
Customers. The Executive agrees
that during his employment by the Bank hereunder and, in the event of his
termination:


 


•            by the Bank for Cause pursuant to Section 3.2.1
(a),


•            by the Executive without Cause pursuant to Section 3.2.2(b),
or


•            by the Executive in connection with a Change
of Control pursuant to Section 3.3,


 


for a period of twelve (12) months thereafter, he will not (except on
behalf of or with the prior written consent of the Bank), within the Area, on
his own behalf or in the service or on behalf of others, solicit, divert or
appropriate or attempt to solicit, divert or appropriate, any business from any
of the Bank’s customers, including actively sought prospective customers, with
whom the Executive has or had material contact during the last two (2) years
of his employment, for purposes of providing products or services that are
competitive with those provided by the Bank.


 


8.                                      Non-Solicitation of
Employees. The Executive agrees
that during his employment by the Bank hereunder and, in the event of his
termination:


 


•            by the Bank for Cause pursuant to Section 3.2.1(a),


•            by the Executive without Cause pursuant to Section 3.2.2(b),
or


•            by the Executive in connection with a Change
of Control pursuant to Section 3.3,


 


for a period of twelve (12) months thereafter, he will not, within the
Area, on his own behalf or in the service or on behalf of others, solicit,
recruit or hire away or attempt to solicit, recruit or hire away, any employee
of the Bank, whether or not:


 


•            such employee is a full-time employee or a
temporary employee of the Bank,


•            such employment is pursuant to written
agreement, or


•            such employment is for a determined period or
is at will.


 


9.                                      Remedies. The Executive agrees that the covenants
contained in Sections 5 through 8 of this Agreement are of the essence of this
Agreement; that each of the covenants is reasonable and necessary to protect
the business, interests and properties of the Bank, and that irreparable loss
and


 


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damage
will be suffered by the Bank should he breach any of the covenants. Therefore,
the Executive agrees and consents that, in addition to all the remedies
provided by law or in equity, the Bank shall be entitled to a temporary
restraining order and temporary and permanent injunctions to prevent a breach
or contemplated breach of any of the covenants. The Bank and the Executive
agree that all remedies available to the Bank or the Executive, as applicable,
shall be cumulative.


 


10.                               Severability. The parties agree that each of the provisions
included in this Agreement is separate, distinct and severable from the other
provisions of this Agreement and that the invalidity or unenforceability of any
Agreement provision shall not affect the validity or enforceability of any other
provision of this Agreement. Further, if any provision of this Agreement is
ruled invalid or unenforceable by a court of competent jurisdiction because of
a conflict between the provision and any applicable law or public policy, the
provision shall be redrawn to make the provision consistent with and valid and
enforceable under the law or public policy.


 


11.                               No Set-Off by
the Executive.   The existence of any claim, demand, action or
cause of action by the Executive against the Bank whether predicated upon this
Agreement or otherwise, shall not constitute a defense to the enforcement by
the Bank of any of its rights hereunder.


 


12.                               Notice. All notices and other communications required
or permitted under this Agreement shall be in writing and, if mailed by prepaid
first-class mail or certified mail, return receipt requested, shall be deemed
to have been received on the earlier of the date shown on the receipt or three (3) business
days after the postmarked date thereof. In addition, notices hereunder may be delivered
by hand or overnight courier, in which event the notice shall be deemed
effective when delivered. All notices and other communications under this
Agreement shall be given to the parties hereto at the following addresses:


 


(i)                                      If to the Bank, to it at:


 


New Southern Bank


4077 Forsyth Street


Macon, Georgia 31210


 


(ii)                                 If to the Executive, to him at:


413 Brittany Downs


Macon, Georgia 31210


 


13.                               Assignment.  Neither party hereto may assign or delegate this Agreement or any of
its rights and obligations hereunder without the written consent of the other
party to this Agreement.


 


14.                               Waiver. A waiver by one party to this Agreement of
any breach of this Agreement by the other party to this Agreement shall not be
effective unless in writing, and no waiver shall operate or be construed as a
waiver of the same or another breach on a subsequent occasion.


 


15.                               Arbitration.  Any controversy or claim arising out of or relating to this contract,
or the breach thereof, shall be settled by binding arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association. Judgment upon the award rendered by


 


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the
arbitrator may be entered only in a state court of Bibb County or the federal
court for the Middle District of Georgia. The Bank and the Executive agree to
share equally the fees and expenses associated with the arbitration
proceedings.


 


16.                               Attorneys’ Fees.  In
the event that the parties have complied with this Agreement with respect to
arbitration of disputes and litigation ensues between the parties concerning
the enforcement of an arbitration award, the party prevailing in such
litigation shall be entitled to receive from the other party all reasonable
costs and expenses, including without limitation attorneys’ fees, incurred by
the prevailing party in connection with such litigation, and the other party
shall pay such costs and expenses to the prevailing party promptly upon demand
by the prevailing party.


 


17.                               Applicable Law.   
This Agreement shall be construed and enforced under and in accordance
with the laws of the State of Georgia.


 


18.                               Interpretation.  Words importing any gender include all genders.  Words importing the singular form shall
include the plural and vice versa. The terms “herein”, “hereunder”, “hereby”, “hereto”,
“hereof and any similar terms refer to this Agreement. Any captions, titles or
headings preceding the text of any article, section or subsection herein
are solely for convenience of reference and shall not constitute part of this
Agreement or affect its meaning, construction or effect.


 


19.                               Entire Agreement. This Agreement embodies the entire and final
agreement of the parties on the subject matter stated in this Agreement. No
amendment or modification of this Agreement shall be valid or binding upon the
Bank or the Executive unless made in writing and signed by both parties. All
prior understandings and agreements relating to the subject matter of this
Agreement are hereby expressly terminated.


 


20.                               Rights of Third Parties. Nothing herein expressed is intended to or
shall be construed to confer upon or give to any person, firm or other entity,
other than the parties hereto and their permitted assigns, any rights or
remedies under or by reason of this Agreement.


 


21.                               Survival.  The obligations of the Executive pursuant to Sections 5, 6, 7, 8 and 9
shall survive the termination of the employment of the Executive hereunder for
the period designated under each of those respective sections.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


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IN WITNESS WHEREOF, the Bank and the Executive have executed and
delivered this Agreement as of the date first shown above.


 


	
   

  	
  THE
  BANK:

  
	
   

  	
   

  
	
   

  	
  NEW
  SOUTHERN BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Wm. A. Fickling

  	
   

  
	
   

  	
   

  	
  Signature

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wm.
  A. Fickling, III

  	
   

  
	
   

  	
   

  	
  Print
  Name

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Chairman

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  MARKA.STEVENS

  
	
   

  	
   

  
	
   

  	
  /s/ Mark A. Stevens

  	
   

  



 


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AMENDMENT


TO THE NEW
SOUTHERN BANK


INCENTIVE
STOCK OPTION AWARD


 


THIS AMENDMENT to the Incentive Stock Option Award by and between NEW
SOUTHERN BANK (the “Bank”), a bank organized under the laws of the State of
Georgia, and MARK A. STEVENS (the “Optionee”) is made as of October 6,
2005.


 


W I T N E S S E T H:


 


WHEREAS, the Optionee has been granted by the Bank options to purchase
40,000 shares of the common stock of the Bank pursuant to Incentive Stock Option
Awards dated, respectively, December 10, 2001 (the “2001 Option Agreement”)
granting 16,000 option shares and December 10, 2002 (the “2002 Option
Agreement”) granting 24,000 option shares (collectively, the 2001 Option
Agreement and the 2002 Option Agreement are referred to as the “Option
Agreements”);


 


WHEREAS, the Bank and the Optionee now desire to amend the Option
Agreements to provide that the options shall fully vest upon the death of the
Optionee; and


 


WHEREAS, the Bank and the Optionee now desire to amend the 2002 Option
Agreement to provide for vesting over five (5) years.


 


NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and promises herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
amend the Option Agreements, effective as of October 6, 2005, as follows:


 


1.                                       By adding new Section E to Schedule 1
of the Option Agreements as follows:


 


“E.                                Notwithstanding Part A, in the event of
the Optionee’s death, the Option will be immediately fully vested as of the
date of death.”


 


2.                                      By deleting Section A of Schedule 1
of the 2002 Option Agreement and substituting therefor the following:


 


“A.                             The Option Shares shall become vested Option Shares following
completion of the years of service as an employee of the Bank or any Parent or
Subsidiary as indicated in the schedule below.


 


	
  Percentage
  of Option Shares

  Which are Vested Shares

  	
   

  	
  Years of Service

  after the Grant Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  20

  	
  %

  	
  1

  	
   

  
	
  40

  	
  %

  	
  2

  	
   

  
	
  60

  	
  %

  	
  3

  	
   

  
	
  80

  	
  %

  	
  4

  	
   

  
	
  100

  	
  %

  	
  5

  	
  ”

  



 





















 


IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above stated.


 


	
   

  	
  NEW SOUTHERN BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Wm. A. Fickling

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Chairman

  	
   

  
						



 


	
  ATTEST:

  
	
   

  
	
  /s/ Caroline Soto

  	
   

  
	
   

  
	
  Title:

  	
   SVP

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   [CORPORATE SEAL]

  	
   

  
	
   

  
	
   

  	
  OPTIONEE

  
	
   

  	
   

  
	
   

  	
  /s/ Mark A. Stevens

  	
   

  
	
   

  	
  MARK A STEVENS

  
	
   

  
	
   

  
						



 


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