**Exhibit 10.7**

 

**AGREEMENTCONCERNING SEVERANCE COMPENSATION ANDBENEFITS UPON A CHANGE OF CONTROL**

 

**THISAGREEMENT** is made and entered into effective as of the 29thday of August, 2008 by and between First Century Bank, a Georgia corporation(the “Company”), and Chris England (the “Employee”).

 

**W I T N E S S E T H:**

 

**WHEREAS**,the Employee has been an employee of the Company since April 30, 2008;

 

**WHEREAS**,the Employee desires to enter into an agreement with the Company  which includes certain compensation and benefitsin the event of a change of control of the Company or in the event that theCompany is acquired;

 

**WHEREAS**,the Company desires to provide compensation and benefits in the event of achange of control in consideration of certain promises from the Employee;

 

**WHEREAS**,the Employee and Company acknowledge that this Agreement and the benefitsdescribed herein are valuable consideration.

 

**NOW,THEREFORE,** in consideration of the mutual promises andcovenants contained herein, and other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the parties agree asfollows:

 

1.                                       **Employment**.  The Company employs the Employee, pursuant tothe terms and conditions of an offer letter dated April 4, 2008 (“OfferLetter”).  The Employee’s employment bythe Company began April 30, 2008. Pursuant to the Offer Letter, theCompany and the Employee have agreed that the Employee shall be paid an annualbase salary, (as may be adjusted from time to time, the “Base Salary”) andcertain other benefits.

 

2.                                       **Term of Agreement**.  This Agreement commenced as of the effectivedate of this agreement and shall continue in force and effect for a period ofnot less than eighteen (18) months after a separation of employment occurs.

 

3.                                       **Change of Control**.  The Company and the Employee agree that thecompensation and benefits to be provided to the Employee under Section 4of this Agreement shall be payable to the Employee if the following event insection (a) occurs:

 

(a)                                  Upona Change of Control, which means the exercise of power, directly or indirectly,to direct management or policies of the Company by any person, firm,corporation or other business entity or investor that does not own or control25% of the common stock or other voting securities of the Company as of thedate of this Agreement (each, a “Successor Entity”), or the acquisition by anySuccessor Entity of 25% or more of

 

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any class ofvoting securities.  A Change of Controlis not deemed to occur with any organization affiliated with William Blanton,First Covenant Bank, or First Century Bank.

 

(b)                                 Asused in this Agreement, the event described in Section 3(a) is a “Changeof Control Event.”

 

4.                                       **Compensation and Benefits.**   If the Change of Control Event described in Section 3of this Agreement occurs, the Employee shall be entitled to receive a specificpayment described herein.  As used inthis Agreement, “Change of Control Payment” means an amount equal to two (2) timesthe Employee’s Base Salary in effect as of the date of such Change of ControlEvent.  This payment shall be payable bythe Company or any Successor Entity within thirty (30) days after the effective date of any Change ofControl Event (the “Change of Control Payment”).

 

5.                                       **Noninterference and Nondisclosure**.

 

5.1.                              Forpurposes of this Agreement, the following definitions shall apply:

 

(a)              “Trade Secrets”means all information from which the Employer, or any person or company thatdoes business with the Employer, derives actual or potential economic valuefrom its not being known by those who can obtain economic value from itsdisclosure or use and it not being readily ascertainable by proper means.  Employee agrees that Trade Secrets of theEmployer include, but are not limited to, technical and non-technical data,formulas, patterns, circuitry, software, compilations, programs, devices,methods, techniques, drawings, processes, financial data, financial plans,product plans, distribution lists or lists of actual or potential suppliers,advertisers, contractors, consultants or customers or other Employerinformation that is the subject of reasonable efforts under the circumstancesto maintain secrecy.  Without limitingthe foregoing, Trade Secret means any item of confidential information thatconstitutes a “trade secret(s)” under applicable common law or statutory law.

 

(b)             “ConfidentialInformation” means information of the Employer, or of any person or companythat does business with the Employer, which is not generally known by othersand is commercially valuable, but does not constitute a Trade Secret.  Employee agrees that Confidential Informationof the Employer includes, but is not limited to, oral and written informationabout the financial affairs of the Employer, financing methods, accounting,marketing and personnel records, current or potential customers lists, businessplans and strategies, profit and performance reports, training manuals, productdevelopments, discoveries, ideas, concepts designs, improvements, processes andany other information that is treated by the Employer as being confidential oris labeled as “confidential” or to similar effect.  Confidential Information also includes anyinformation described as proprietary or designated as confidential information,whether or not owned or developed by Employer.

 

5.2.                              AgreementNot to Use, Disclose or Compete.  Asan Employee for the Employer, Employee will be in frequent direct and indirectcontact with customers of the Employer and, in consideration for signing thisAgreement, Employee will be presented with, gain access to, and may participatein the development of both Trade Secrets and Confidential Information.  The Employee recognizes and acknowledges thatthe Trade Secrets and Confidential Information constitute

 

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valuable, special andunique assets of the Employer and use or/and disclosure thereof contrary to theterms of this Agreement would cause substantial loss of competitive advantageand other serious injury to the Employer. The Employee further acknowledges that knowledge of Trade Secrets andConfidential Information Employee is presented with, has access to and mayparticipate in developing with the Employer may be inevitably disclosed byEmployee if he obtains a position with a competitor that is similar or relatedto the position Employee previously held with the Employer.  Under such circumstances it would beextremely difficult for him not to disclose, rely on or use the Employer’sTrade Secrets and Confidential Information, and Employee could not be dependedupon to voluntarily avoid this, thereby causing a threat of substantial andirreparable harm to the Employer. Therefore, in order to protect the Trade Secret and ConfidentialInformation that Employee will be presented with, gain access to andparticipate in the development of, Employee covenants and agrees to thefollowing restrictions:

 

(a)                Employee agreesthat Employee shall hold all Trade Secrets in strictest confidence, shall not useor disclose such Trade Secrets at any time or for any purpose except in theperformance of Employee’s designated duties for the Employer, shall diligentlyprotect any and all Trade Secrets against loss by inadvertent or unauthorizeddisclosure, use or misappropriation, and shall comply with all regulationsestablished by the Employer for the purpose of protecting suchinformation.  The foregoing provisionwill not apply to information that ceases to be a Trade Secret, unless suchinformation has ceased to be a Trade Secret due to Employee’s breach or defaultof this Agreement.

 

(b)              Employee agrees thatduring Employee’s engagement with the Employer and thereafter, Employee shallhold all Confidential Information in strictest confidence, shall not use or disclosesuch Confidential Information except in the performance of Employee’sdesignated duties for the Employer, shall diligently protect any and allConfidential Information against loss by inadvertent or unauthorizeddisclosure, use or misappropriation, and shall comply with regulationsestablished by the Employer for the purpose of protecting such information.

 

(c)                Employee agreesthat all records, notes, files, memoranda, reports, printouts, drawings, plans,sketches, documents, equipment, apparatus and like items relating to thebusiness of the Employer or containing any Confidential Information or TradeSecrets will be and remain the sole and exclusive property of theEmployer.  At any time upon request fromthe Employer, Employee shall promptly deliver to the Employer the originals andall copies of any such items that are in Employee’s possession, custody orcontrol.

 

(d)               Employee agreesthat all inventions, original works of authorship, developments, concepts,know-how, discoveries, improvements, trade secrets, secret processes, patents,patent applications, service marks, trademarks, trademark applications,copyright and copyright registrations, whether or not patentable orregisterable under copyright, trademark or other similar laws, made by Recipient,in whole or in part, or conceived by Recipient alone or with others, thatrelate to the business, operations, activities, research, investigation orobligations of the Employer (collectively, the “Works”) are the property of theEmployer and all right, title, interest and ownership in all such Works,including but not limited to copyrights, trademarks, patents, trade secretrights, trade names, and know-how and the rights to secure any renewals,reissues, and extensions thereof, will vest in the Employer.  The Works will be deemed to be “works madefor

 

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hire” under United States copyright law (17 U.S.C.  Section 101 et seq.) and made in the courseof this Agreement.  To the extent thatthe Works may not, by operation of law, vest in the Employer or may not beconsidered to be works made for hire, all right, title and interest therein arehereby irrevocably assigned to the Employer. Employee understands that the Employer may register the copyright, trademark,patent and other rights in the Works in the Employer’s name.  Employee hereby agrees to sign suchapplications, documents, assignment forms and other papers as the Employerrequests from time to time to further confirm this assignment and Employeeagrees to give the Employer and any person designated by the Employer anyreasonable assistance required to perfect and enforce the rights defined inthis Section.  Employee furtherunderstands that the Employer has full, complete and exclusive ownership of theWorks (the “Intellectual Property”). Employee agrees not to use the Intellectual Property for the benefit ofanyone other than the Employer without the Employer’s prior written permission.

 

5.3.  Agreement Not to Solicit.  Employee agrees that during the period ofEmployee’s engagement with the Employer, Employee will devote Employee’s bestefforts to Employee’s work for the Employer. In order to protect the Trade Secret and Confidential Information thatEmployee will be presented with, gain access to and participate in thedevelopment of, Employee covenants and agrees that during the period ofEmployee’s engagement with the Employer and for a period of eighteen (18)months thereafter, Employee will not:

 

(a) solicit,recruit, or induce to leave, directly or indirectly, for Employee’s own accountor for any other business, any of the Employer’s employees with whom Employeehad contact while working for the Employer during any part of the yearimmediately preceding the termination of Employee’s engagement;

 

(b) solicit,recruit, or induce for Employee’s own account or for any other business any ofthe Employer’s clients or customers with whom Employee had contact whileworking for the Employer during any part of the year immediately preceding thetermination of Employee’s engagement; or

 

(c) make false,misleading or disparaging statements about the Employer, including itsproducts, services, management, employees, and customers.

 

6.                                       **Arbitration**.  The parties agree, except as otherwiseprovided herein, that any and all disputes that they have with one anotherwhich arise out of the Employee’s employment or under the terms of thisAgreement shall be resolved through final and binding arbitration by a singlearbitrator, as specified herein.  Thisshall include, without limitation, disputes relating to this Agreement, theEmployee’s employment by the Company or the termination thereof, claims forbreach of contract or breach of the covenant of good faith and fair dealing,and any claims of discrimination or other claims under any federal, state orlocal law or regulation now in existence or hereinafter enacted and as amendedfrom time to time concerning in any way the subject of the Employee’semployment with the Company or its termination. The only claims not covered by this Section 6 are claims forbenefits under the workers’ compensation laws or claims for unemploymentinsurance benefits, which will be resolved pursuant to those laws.  Binding arbitration will be conducted inAtlanta, Georgia, in accordance with the applicable rules and regulationsof the American Arbitration Association for the resolution of commercialdisputes.

 

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The Employee and theCompany understand and agree that the arbitration shall be instead of any civillitigation and that the arbitrator’s decision shall be final and binding to thefullest extent permitted by law and enforceable by any court havingjurisdiction thereof.

 

7.                                       **Modification**.  No modification, amendment, or alteration ofany provision of this Agreement shall be effective unless contained in awritten agreement signed by the parties hereto, and then such modification,amendment, or alteration shall be effective only in the specific instances andfor the specific purposes for which given.

 

8.                                       **Successors and Assigns**.  This Agreement shall bind and inure to thebenefit of the parties and their respective successors and permittedassigns.  Upon prior notice to theEmployee, the Company may assign this Agreement to a wholly-owned subsidiary, “spin-off”Company, or other entity affiliated with the Company, or to any SuccessorEntity.  The Employee shall not assignhis rights or obligations hereunder to any person or entity without the priorwritten consent of the Company.

 

9.                                       **No Waiver**.  No delay or failure on the part of theCompany in the exercise of any right, power, or privilege under this Agreementshall impair any such right, power, or privilege or be construed as a waiver ofany default or any acquiescence therein. No waiver shall be valid against the Company unless made in writing andsigned by it, and then only to the extent expressly specified therein.

 

10.                                 **Notices**.  All notices required to be in writing shallbe personally delivered or sent by first-class, registered, or certified mail,postage prepaid, and addressed as follows:

 

If tothe Company:

 

WilliamBlanton/CEO

FirstCentury Bank

807Dorsey Street

Gainesville,GA 30501

 

If to the Employee:

 

Chris England

5506 Stone Trace

Gainesville, GA  30504

 

Either party may changeits address for notice purposes by prior written notice to the other party asspecified herein.

 

11.                                 **Governing Law**.  Except as preempted by federal law, thisAgreement shall be governed by and interpreted in accordance with the laws ofthe State of Georgia without reference to its conflict of law provisions.

 

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12.                                 **Counterparts**.  Any number of counterparts of this Agreementmay be signed and delivered, each of which shall be considered an original andall of which, together shall constitute one and the same instrument.

 

13.                                 **Severability**.  The provisions of this Agreement shall bedeemed severable, and the invalidity or unenforceability of any provision (orpart thereof) of this Agreement shall in no way affect the validity orenforceability of any other provisions (or remaining part thereof). If any partof any covenant or provision contained in this Agreement is determined by acourt of competent jurisdiction, or by any arbitrator to which a dispute is submitted,to be invalid, illegal or incapable of being enforced, then the court orarbitrator so deciding shall interpret such provisions in a manner so as toenforce them to the fullest extent of the law.

 

14.                                 **Entire Agreement**.  This Agreement with attachments constitutesthe entire understanding of the parties with respect to the subject matterhereof.  This Agreement supersedes anyand all other understandings and agreements, either oral or in writing, betweenthe parties hereto with respect to the subject matter hereof and constitutesthe sole and only agreement between the parties with respect to said subjectmatter.  Each party to this Agreementacknowledges that no representations, inducements, promises or agreements, oralor otherwise, have been made by any party or by anyone acting on behalf of anyparty, which are not embodied herein, and that no agreement, statement orpromise not contained in this Agreement shall be valid or binding or of anyforce or effect.

 

15.                                 **Duplication**.  If a benefit promised herein is otherwiseprovided by the terms of a plan or policy sponsored by the Company on accountof the same event giving rise to the benefit under this Agreement, nothingherein shall be construed to entitle the Employee to duplicate benefits; however,if the terms of this Agreement provide for an enhanced benefit, the Employeeshall be entitled to the incremental benefit provided hereunder whether underthe plan or policy or by direct payments from the Company.

 

16.                                 **Withholding**.  All payments made hereunder shall be lesstaxes and applicable withholdings.

 

17.                                 **Headings**.  The headings contained in this Agreement arefor reference purposes and shall not be deemed as an interpretation of thisAgreement.

 

IN WITNESSWHEREOF, the parties have executed this Agreement the day and year first abovewritten.

 
| **FIRST CENTURY BANK** |                     | **EMPLOYEE** |
|------------------------|--------------------------|--------------|
|                   |                     |         |
| By:                    | William R. Blanton       |         | /s/  Chris England |
|                   | Chief  Executive Officer |         | Chris England |

 

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