Exhibit
10.11


 


CITIZENS BANCSHARES CORPORATION


CHANGE
IN CONTROL AGREEMENT


 


THIS CHANGE IN CONTROL AGREEMENT
(the “Agreement”) is made as of this 1 day of December, 2005 by and between Roger
Botwin (the “Executive”) and CITIZENS BANCSHARES CORPORATION, a corporation organized
under the laws of the State of Georgia (the “Company”).


 


RECITALS:


 


WHEREAS, the Executive is
currently employed by the Company and/or one or more of its affiliates as the Executive
Vice President/Chief Credit Officer; and


 


WHEREAS, the Company desires
to enter into an agreement with the Executive to provide change in control benefits
to the Executive upon the terms and conditions set forth herein.


 


NOW, THEREFORE, in
consideration of the mutual covenants herein contained, the parties agree as
follows:


 


1.             Definitions.
For purposes of this Agreement, the following terms and conditions shall have
the meanings set forth in this Section 1:


 


(a)           “Area” means the geographic
area within the boundaries of Fulton and Dekalb Counties in the State of
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 Company
and its affiliates as of the Effective Date.


 


(b)           “Board of Directors” means the
Board of Directors of the Company.


 


(c)           “Business of the Company”
means the business of commercial banking.


 


(d)           “Cause” means the occurrence
of any of the following events:


 


(i)            material
dishonesty, gross negligence or willful misconduct by Executive in the
performance of his duties hereunder which conduct results in material financial
or reputational harm to the Company or its affiliates;


 


(ii)           conviction
(from which no appeal may be, or is, timely taken) of Executive of a felony;


 


(iii)          initiation
of suspension or removal proceedings against Executive by federal or state
regulatory authorities acting under lawful authority pursuant to provisions of
federal or state law or regulation which may be in effect from time to time;


 

















 


(iv)          knowing
violation by Executive of federal or state banking laws or regulations; or


 


(v)           refusal
by Executive to perform a duly authorized and lawful written directive of the
Chief Executive Officer of the Company or the President of the Bank.


 


(e)           “Change in Control” means the occurrence of any of the
following events on or after the Effective Date:


 


(i)            the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of voting securities of the corporation where such acquisition causes such
person to own more than fifty percent (50%) of the combined voting power of the
then outstanding voting securities of the Company entitled to vote generally in
the election of directors; or


 


(ii)           individuals who as of the Effective Date hereof,
constitute the Board of Directors of the Company (the “Incumbent Board”) cease
for any reason to constitute at least a majority of such Board of Directors;
provided, however, that any individual becoming a director subsequent to the
Effective Date hereof whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least two-thirds of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member such Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or removal
of directors or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board or Directors; or


 


(iii)          a reorganization, merger or consolidation, (a “Business
Combination”) with respect to which persons who were the owners of the Company immediately
prior to such Business Combination do not, immediately thereafter, own,
directly or indirectly, more than fifty percent (50%) of the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors of
the corporation resulting from such Business Combination (including, without limitation,
a corporation that as a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or through one or
more subsidiaries);


 


(iv)          the sale, transfer or assignment of all or substantially
all of the assets of the Company and its affiliates to any third party; or


 


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(v)           a complete liquidation or dissolution of the Company.


 


(f)            “Code” means the Internal
Revenue Code of 1986, as amended.


 


(g)           “Confidential Information”
means data and information relating to the business of the Company (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
its relationship to the Company and which has value to the Company 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 Company (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.


 


(h)           “Disability” means a condition
for which benefits would be payable under any long-term disability coverage
(without regard to the application of any elimination period requirement) then
provided to the Executive by the Company or, if no such coverage is then being
provided, the inability of the Executive to perform the material aspects of the
Executive’s duties of employment for a period of at least one hundred eighty
(180) consecutive days as certified by a physician chosen by the Executive and
reasonably acceptable to the Company.


 


(i)            “Effective Date” means the
date on which this Agreement is made as evidenced above.


 


(j)            “Good Reason” means the
occurrence of any of the following events and which is not corrected by the Company
within thirty (30) days after the Executive’s written notice to the Company or
one of its affiliates of the same:


 


(i)            a material diminution in the Executive’s
responsibilities or duties in effect immediately prior to the effective date of
the Change in Control;


 


(ii)           a material reduction in the Executive’s
base salary, incentives and/or benefits in effect immediately prior to the
effective date of a Change in Control;


 


(iii)          elimination of benefit or incentive
programs in which the Executive participates without availability of comparable
replacement programs; or


 


(iv)          a change of the location of the Executive’s
place of employment to more than fifty (50) miles from the Executive’s
principal business office as of the effective date of a Change in Control.


 


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(k)           “Termination of Employment” means the Executive’s termination of
employment, for any reason, from the Company and all affiliates. Notwithstanding
the foregoing, an event shall not be deemed to be a Termination of Employment
if it would not qualify as a “separation from service” pursuant to Code Section
409A and the regulations promulgated thereunder.


 


(l)            “Specified Employee” shall mean a key employee (as defined in Code Section
416(i) without regard to Code Section 416(i)(5)) of the Company (or an entity
which is considered to be single employer with the Company under Code Section
414(b) or 414(c)) at any time during the twelve (12) month period ending on
December 31. Notwithstanding the foregoing, any employee who is a key
employee determined under the preceding sentence will be deemed to be a
Specified Employee solely for the period of April 1 through March 31 following
such December 31 or as otherwise required by the Code Section 409A and the
regulations promulgated thereunder.


 


(m)          “Trade Secrets”  means information, without regard to form,
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 (i) 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 (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.


 


2.             Term. This
Agreement shall become effective as of the Effective Date and shall remain in
effect until the effective date of the Executive’s Termination of Employment;
provided, however, if a Change in Control occurs prior to the Executive’s Termination
of Employment, this Agreement shall remain in effect for two (2) years
following the effective date of such Change in Control.


 


3.                                       Severance Benefits Upon Termination of Employment.


 


(a)           Amount of Severance Benefits. If,
within three (3) months before or two (2) years
following a Change in Control, the Executive experiences a Termination of
Employment due to either (i) an involuntarily termination by the Company or one
of its affiliates without Cause or (ii) a resignation by the Executive for Good
Reason (no later than six (6) months after the occurrence of the most recent
event constituting Good Reason), the Company shall pay to the Executive an
amount equal to one (1) times the Executive’s annual base salary in effect at
the time of the Termination of Employment. In addition, to the extent permitted
by the applicable plan or program, the following employee welfare benefits
shall continue in effect at the same level as in effect immediately prior to
the Change in Control for a period of twelve (12) months following the Termination
of Employment (the “Severance Period”):


 


If on the last date of
the Executive’s day of employment, the Executive has any of the following
benefits, those benefits should continue for a period of twelve (12) months 


 


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following the Termination of Employment (the “Severance Period) under
the terms listed below:


 


Medical, Vision, Prescription
Drug, Dental, as limited by COBRA;


Stock Purchase Plan;


YMCA;


Prepaid Legal;


Sam Club; and


Accrued unused vacation
time.


 


Finally, during the
Severance Period, the Company shall pay to the Executive an amount equal to the
Executive’s cost of COBRA continuation health coverage for the Executive and his
eligible dependents for the Severance Period or if less, the period during
which the Executive and his eligible dependents are entitled to COBRA
continuation coverage. The payments described in this Section 3 shall be collectively
referred to in this Agreement as the “Severance Benefit.”  A termination of the Executive’s employment
due to his death or Disability will not be deemed to be an involuntary
termination of employment by the Company or one of its affiliates without Cause
or a resignation by the Executive for Good Reason.


 


(b)           Golden Parachute Reduction. Notwithstanding
Subsection (a), if the aggregate of the Severance Benefit and other payments
and benefits which the Executive has the right to receive from the Company and
its affiliates (including the value of any equity rights which become vested
upon a Change in Control) (the “Total Payments”) would constitute a “parachute
payment” as defined in Section 280G(b)(2) of the Code, the Executive shall
receive the Total Payments unless the (a) after-tax amount that would be
retained by the Executive (after taking into account all federal, state and
local income taxes payable by the Executive and the amount of any excise taxes
payable by the Executive under Code Section 4999 that would be payable by the Executive
(the “Excise Taxes”)) if the Executive were to receive the Total Payments has a
lesser aggregate value than (b) the after-tax amount that would be retained by
the Executive (after taking into account all federal, state and local income
taxes payable by the Executive) if the Executive were to receive the Total
Payments reduced to the largest amount as would result in no portion of the
Total Payments being subject to Excise Taxes (the “Reduced Payments”), in which
case the Executive shall be entitled only to the Reduced Payments. If the Executive
is to receive the Reduced Payments, the Executive shall be entitled to
determine which of the Total Payments, and the relative portions of each, are
to be reduced.


 


(c)           Payment of Severance Benefit. The
Severance Benefit shall be paid to the Executive in a lump sum payment as soon
as practicable following the Executive’s Termination of Employment; provided,
however, that if the Executive is a Specified Employee at the time payment is
due hereunder, then the lump sum payment shall be deferred and paid as soon as
practicable following the expiration of six (6) months from the effective date
of the Executive’s Termination of Employment. The Company shall be 


 


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entitled to withhold appropriate employment and income taxes, if
required by applicable law, if the Severance Benefit becomes payable.


 


4.             Confidentiality.


 


(a)           All
Confidential Information and Trade Secrets and all physical embodiments thereof
received or developed by the Executive while employed by the Company or any of
its affiliates are confidential to and are and will remain the sole and
exclusive property of the Company or any of its affiliates. Except to the
extent necessary to perform the duties assigned to him by the Company, the Executive
will hold such Confidential Information and Trade Secrets in trust and
strictest confidence, and will not use, reproduce, distribute, disclose or
otherwise disseminate the Confidential Information and Trade Secrets or any
physical embodiments thereof and may in no event take any action causing or
fail to take the action necessary to prevent, any Confidential Information and
Trade Secrets disclosed to or developed by the Executive to lose its character
or cease to qualify as Confidential Information or Trade Secrets.


 


(b)           The
covenants of confidentiality set forth herein will apply during the Term of the
Executive’s employment to any Confidential Information and Trade Secrets
disclosed by the Company or one of its affiliates or developed by the Executive
prior to or after the date hereof. The covenants restricting the use of
Confidential Information will continue and be maintained by the Executive for a
period of twelve (12) months following termination of this Agreement. The
covenants restricting the use of Trade Secrets will continue and be maintained
by the Executive following termination of this Agreement for so long as
permitted by the then-current Georgia Trade Secrets Act of 1990, O.C.G.A. §
10-1-760, et. seq.


 


5.             Noncompetition. In the event that
the Executive is entitled to receive the Severance Benefit under this
Agreement, the Executive agrees that, for twelve (12) months following the Executive’s
termination of employment, the Executive will not (except on behalf of or with
the prior written consent of the Company), within the Area, either directly or
indirectly, on his own behalf or in the service or on behalf of others, as an
employee or in any other capacity which involves duties and responsibilities
similar to those undertaken for the Company or any of its affiliates, engage in
any business which is the same as or essentially the same as the Business of
the Company.


 


6.             Nonsolicitation. In the event that
the Executive is entitled to receive the Severance Benefit under this
Agreement, the Executive agrees that, for twelve (12) months following the Executive’s
termination of employment:


 


(a)           the
Executive will not (except on behalf of or with the prior written consent of
the Company), on the Executive’s own behalf or in the service or on behalf of
others, solicit, divert or appropriate or attempt to solicit, divert or
appropriate, directly or by assisting others, any business from any of the
customers of the Company or its affiliates, including actively sought
prospective customers, with whom the Executive has or had material contact
during the last two (2) years of the Executive’s employment, for 


 


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purposes of providing
products or services that are competitive with those provided by the Company
and its affiliates; and


 


(b)           the
Executive will not on the Executive’s own behalf or in the service or on behalf
of others, solicit, recruit or hire away or attempt to solicit, recruit or hire
away, directly or by assisting others, any employee of the Company or its
affiliates, whether or not such employee is a full-time employee or a temporary
employee of the Company or its affiliates and whether or not such employment is
pursuant to a written agreement and whether or not such employment is for a
determined period or is at will.


 


7.             Enforcement of Covenants and Remedies.
The Executive agrees that the covenants contained in Sections 4, 5, and 6
hereof are the essence of this Agreement; that each of the covenants is
reasonable and necessary to protect the business, interest and properties of
the Company, and that irreparable loss and damage will be suffered by the Company
should he breach any of the covenants. In the event that the Company reasonably
determines that the Executive has breached any of his obligations pursuant to
Sections 4, 5, and 6 hereof, which remain uncured after the expiration of
thirty (30) days following the delivery of written notice of such breach to the
Executive by the Company, the Executive will forfeit any amounts owed to the Executive
under Section 3 hereof which have not previously been paid to the Executive. The
Executive also agrees and consents that, in addition to all the remedies
provided by law or in equity, the Company shall be entitled to specific
performance of this Agreement and to both temporary and permanent injunctions
to prevent a breach or contemplated breach by the Executive of the covenants in
Sections 4, 5 and 6 hereof.


 


8.             No Mitigation.
No amounts or benefits payable to the Executive hereunder shall be subject to
mitigation or reduction by income or benefits the Executive receives from other
sources.


 


9.             Continued Employment.
Nothing in this Agreement shall entitle Executive to continued employment with
the Company or any of its affiliates or to continued tenure in any specific
office or position. The Executive’s employment with the Company or any of its
affiliates shall be terminable at the will of the Company, with or without Cause.


 


10.           Assignment.
If the Company sells, assigns, or transfers a majority of its business and
assets to any person or entity, or if the Company merges into or consolidates
or otherwise combines with any person which is a continuing or successor entity
(such acquiring or successor entity to be referred to herein as the “Acquiring
Entity”), then the Company shall assign all of its right, title and interest in
this Agreement to the Acquiring Entity and the Acquiring Entity shall assume
and perform all of the terms, conditions and provisions imposed by this
Agreement upon the Company. In the event the Company assigns this Agreement as
permitted by this Agreement and the Acquiring Entity assumes this Agreement,
all further rights and obligations of the Company shall cease and terminate and
the “Company” as defined herein will refer to the Acquiring Entity.


 


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11.           Dispute Resolution.
The Company and the Executive
agree that any dispute between the Executive and the Company or its officers,
directors, employees, or agents in their individual or Company capacity
relating to the interpretation, enforcement or breach of this Agreement, shall
be submitted to a mediator for non-binding, confidential mediation. If the matter
cannot be resolved with the aid of the mediator, the Company and the Executive
mutually agree to arbitration of the dispute. The arbitration shall be in
accordance with the then-current Employment Dispute Resolution Rules of the
American Arbitration Association (“AAA”) before an arbitrator who is licensed
to practice law in the State of Georgia. The arbitration shall take place in or
near Atlanta, Georgia. The Company and the Executive agree that the procedures
outlined in this provision are the exclusive method of dispute resolution.


 


12.           Attorneys’ Fees. In the event of the use of any dispute resolution
program related to a controversy arising
under or in connection with this Agreement, the party prevailing
in such dispute resolution program 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 dispute
resolution program, and the other party shall pay such costs and expenses to
the prevailing party promptly upon demand by the prevailing party. The amount
of reasonable attorneys’ fees shall be determined by the trier of fact in its
sole discretion but, in any event, shall not exceed $10,000.


 


13.           Notice. All
notices, consents, waivers and other communications required or permitted by
this Agreement shall be in writing and shall be deemed given to a party when
(a) delivered to the appropriate address by hand or by nationally recognized
overnight courier service (costs prepaid); (b) sent by facsimile with
confirmation of transmission by the transmitting equipment; or (c) received or
rejected by the addressee, if sent by certified mail, return receipt requested,
in each case to the following addresses or facsimile numbers and marked to the
attention of the person (by name or title) designated below (or to such other
address, facsimile number or person as a party may designate by written notice
to the other parties):


 


	
  If to the Company, to
  the Company at:

  	
   

  	
  Citizens Bancshares
  Corporation

  
	
   

  	
   

  	
  Attention:
  Chairman

  
	
   

  	
   

  	
  Ray
  M. Robinson

  
	
   

  	
   

  	
  75
  Piedmont Ave., N.E.

  
	
   

  	
   

  	
  Atlanta,
  Georgia 30303

  
	
   

  	
   

  	
   

  
	
  If to the Executive, to
  the Executive at:

  	
   

  	
  Mr. Roger Botwin

  
	
   

  	
   

  	
  1909 Courtney Lake
  Drive, S.W.

  
	
   

  	
   

  	
  Conyers, Georgia 30094

  



 


14.           Headings. Sections
or other headings contained herein are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.


 


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15.           Entire Agreement.
This Agreement contains the entire understanding of the parties with respect to
the subject matter hereof.


 


16.           Release. Prior
to payment of any Severance Benefit pursuant to this Section 3, the Company
shall have the right to require the Executive to sign, and the Executive hereby
agrees to sign, a release, as described herein, and the Company may withhold
payment of such amount until the period during which the Executive may revoke
such waiver (normally seven (7) days) has elapsed. The release shall provide
the release and discharge of the Company and related persons and entities from
any and all such actions, suits, proceedings, claims, demands or causes of
action, in any way directly or indirectly related to or connected with the
Executive’s employment with the Employer and or the termination of the
employment with the Employer, including, but not limited to, claims relating to
discrimination in employment.


 


17.           Severability.
In the event that one or more of the provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not be
affected thereby.


 


18.           Governing Law.
To the full extent controllable by stipulation of the parties, this Agreement
shall be interpreted and enforced under Georgia law.


 


19.           Amendment.
This Agreement may not be modified, amended, supplemented or terminated except
by a written agreement between the Company and the Executive.


 


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IN WITNESS WHEREOF, each
of the parties has executed this Agreement as of the date and year first above
written.


 


	
   

  	
  CITIZENS
  BANCSHARES CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name: James E.
  Young

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: President &
  CEO

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date: 

  	
   

  
							



 


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