Exhibit 10.11


 


Prepared 12-1-05


 


NEW SOUTHERN BANK


Salary Continuation Agreement


 


© 2005
Clark Consulting, Inc.


 


This document is provided to assist your legal counsel in documenting
your specific arrangement.  The laws of
the various states may differ considerably, and this specimen is for general
information only.  It is not a form to be
signed, nor is it to be construed as legal advice.  Failure to accurately document your arrangement
could result in significant losses, whether from claims of those participating
in the arrangement, from the heirs and beneficiaries of participants, or from
regulatory agencies such as the Internal Revenue Service, the Department of
Labor, or bank examiners.  License is
hereby granted to your legal counsel to use these materials in documenting
solely your arrangement.


 


In general, if your bank is subject to SEC regulation, implementation
of this or any other executive or director compensation program may
trigger rules requiring certain disclosures on Form 8-K within four days of
implementing the program.  Consult with
your SEC attorney, if applicable, to determine your responsibilities under the
disclosure rules.


 


 


 


IMPORTANT NOTICE ON CODE SECTION 409A COMPLIANCE


 


Consult with your legal and tax advisors to determine the impact of the
new Internal Revenue Code Section 409A to your particular situation.  The Treasury Department on September 29th,
2005 issued proposed regulations implementing the requirements of Section 409A
which apply to nonqualified deferred compensation arrangements.  The effective date for the proposed
regulations is January 1, 2007; however, they can be fully relied upon by plan
sponsors until the regulations become final.


 

















 


NEW
SOUTHERN BANK


SALARY CONTINUATION AGREEMENT


 


THIS SALARY CONTINUATION AGREEMENT (the “Agreement”) is adopted this                  
day of                       ,
200     , by and between NEW SOUTHERN BANK, a
state-chartered commercial bank located in Macon, Georgia (the “Company”), and
BRANDON L. MERCER (the “Executive”).


 


The purpose of this Agreement is to provide specified benefits to the
Executive, a member of a select group of management or highly compensated
employees who contribute materially to the continued growth, development and
future business success of the Company. 
This Agreement shall be unfunded for tax purposes and for purposes of
Title I of the Employee Retirement Income Security Act of 1974 (“ERISA”), as
amended from time to time.  The Company
will pay the benefits from its general assets.


 


The Company and the Executive agree as provided herein.


 


Article 1


Definitions


 


Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:


 


1.1           “Accrual Balance” means the liability
that should be accrued by the Company, under Generally Accepted Accounting
Principles (“GAAP”), for the Company’s obligation to the Executive under this
Agreement, by applying Accounting Principles Board Opinion Number 12 (“APB 12”)
as amended by Statement of Financial Accounting Standards Number 106 (“FAS 106”)
and the Discount Rate.  Any one of a
variety of amortization methods may be used to determine the Accrual
Balance.  However, once chosen, the
method must be consistently applied.  The
Accrual Balance shall be reported by the Company to the Executive on Schedule
A.


 


1.2           “Beneficiary” means each designated
person, or the estate of the deceased Executive, entitled to benefits, if any,
upon the death of the Executive determined pursuant to Article 4.


 


1.3           “Beneficiary Designation Form” means
the form established from time to time by the Plan Administrator that the
Executive completes, signs and returns to the Plan Administrator to designate
one or more Beneficiaries.


 


1.4           “Board” means the boards of directors
of the Company.


 


1.5           “Code”
means the Internal Revenue Code of 1986, as amended.


 


1.6           “Disability”
means the Executive’s suffering a sickness, accident or injury which has


 


1

















 


been determined by the insurance carrier of any individual or group
disability insurance policy covering the Executive, or by the Social Security
Administration, to be a disability rendering the Executive totally and
permanently disabled.  The Executive must
submit proof to the Plan Administrator of the insurance carrier’s or Social Security
Administration’s determination upon the request of the Plan Administrator.


 


1.7           “Discount Rate” means the rate used
by the Plan Administrator for determining the Accrual Balance.  The initial Discount Rate is seven percent
(7%).  However, the Plan Administrator,
in its sole discretion, may adjust the Discount Rate to maintain the rate
within reasonable standards according to GAAP.


 


1.8           “Early Involuntary Termination” means Separation from Service before Normal
Retirement Age for reasons other than death, Disability, Termination for Cause
or Early Voluntary Termination.


 


1.9           “Early Involuntary
Termination Date” means the month, day and year in which Early
Involuntary Termination occurs.


 


1.10         “Early Voluntary Termination” means Separation from Service before Normal
Retirement Age for reasons other than death, Disability, Termination for Cause
or Early Involuntary Termination.


 


1.11         “Early Voluntary
Termination Date” means the month, day and year in which Early
Voluntary Termination occurs.


 


1.12         “Effective
Date” means November 1, 2005.


 


1.13         “Final Pay” means the current base
annual salary of the Executive at Separation from Service.


 


1.14         “Normal
Retirement Age” means the Executive’s fiftieth (50th)
birthday.


 


1.15         “Normal
Retirement Date” means the later of the Normal Retirement Age or
Separation from Service.


 


1.16         “Plan Administrator” means the plan
administrator described in Article 8.


 


1.17         “Plan
Year” means a twelve-month period commencing on November 1 and
ending on October 31 of each year.  The
initial Plan Year shall commence on the Effective Date of this Agreement.


 


1.18         “Projected Benefit” means thirty
percent (30%) of Projected Final Pay.


 


1.19         “Projected Final Pay” means Final Pay
increased four percent (4%) annually, until Normal Retirement Age.


 


2

















 


1.20         “Separation from Service” means
the termination of the Executive’s
employment with the Company for reasons other than death
or Disability.  Whether a
Separation form Service takes place is determined based on the facts and
circumstances surrounding the termination of the Executive’s employment and
whether the Company and the Executive intended for the Executive to provide
significant services for the Company following such termination.  A termination of employment will not be
considered a Separation from Service if:


 


(a)           the Executive
continues to provide services as an employee of the Company at an annual rate
that is twenty percent (20%) or more of the services rendered, on average,
during the immediately preceding three full calendar years of employment (or,
if employed less than three years, such lesser period) and the annual
remuneration for such services is twenty percent (20%) or more of the average
annual remuneration earned during the final three full calendar years of
employment (or, if less, such lesser period), or


 


(b)           the Executive
continues to provide services to the Company in a capacity other than as an
employee of the Company at an annual rate that is fifty percent (50%) or more
of the services rendered, on average, during the immediately preceding three
full calendar years of employment (or if employed less than three years, such
lesser period) and the annual remuneration for such services is fifty percent
(50%) or more of the average annual remuneration earned during the final three
full calendar years of employment (or if less, such lesser period).


 


1.21         “Specified Employee” means a key
employee (as defined in Section 416(i) of the Code without regard to paragraph
5 thereof) of the Company if any stock of the Company is publicly traded on an
established securities market or otherwise.


 


1.22         “Termination
for Cause” has that meaning
set forth in Article 5.


 


 


Article 2


Benefits During Lifetime


 


2.1           Normal Retirement
Benefit.  Upon Separation from Service on or after the
Normal Retirement Age for reasons
other than death, the Company shall pay to the Executive the benefit described
in this Section 2.1 in lieu of any other benefit under this Article.


 


2.1.1        Amount of Benefit.  The
annual benefit under this Section 2.1 is thirty percent (30%) of Final Pay.


 


2.1.2        Payment of Benefit.  The
Company shall pay the annual benefit to the Executive in twelve (12) equal
monthly installments commencing on the first day of the month following the
Executive’s Normal Retirement Date.  The
annual benefit shall be paid to the Executive for fifteen (15) years.


 


3

















 


2.2           Early Involuntary
Termination Benefit.  Upon Early Involuntary Termination, the
Company shall pay to the Executive the benefit described in this Section 2.2 in
lieu of any other benefit under this Article.


 


2.2.1        Amount of Benefit.  The
annual benefit under this Section 2.2 is the Early Involuntary Termination
Benefit set forth on Schedule A for the Plan Year during which the Early
Involuntary Termination Date occurs. 
This benefit is determined by vesting the Executive in zero percent (0%)
of the Normal Retirement Benefit described in Section 2.1 for Plan Years one
through five (1-5), ten percent (10%) of the said amount commencing in Plan
Year six (6), and an additional ten percent (10%) of said amount for each
succeeding Plan Year thereafter until the Executive becomes one hundred percent
(100%) vested.


 


2.2.2        Payment of Benefit.  The
Company shall pay the annual benefit to the Executive in twelve (12) equal
monthly installments commencing on the first day of the month following the
Executive’s Normal Retirement Age.  The
annual benefit shall be paid to the Executive for fifteen (15) years.


 


2.3           Early Voluntary
Termination Benefit.  Upon Early Voluntary Termination, the Company
shall pay to the Executive the benefit described in this Section 2.3 in lieu of
any other benefit under this Article.


 


2.3.1        Amount of Benefit.  The
benefit under this Section 2.3 is the Early Voluntary Termination Benefit set
forth on Schedule A for the Plan Year during which the Early Voluntary
Termination Date occurs.  This benefit is
determined by vesting the Executive in zero percent (0%) of the Accrual Balance
for the first five (5) Plan Years, ten percent (10%) of the Accrual Balance in
Plan Year six (6), and an additional ten percent (10%) of said amount for each
succeeding Plan Year thereafter until the Executive becomes one hundred percent
(100%) vested in the Accrual Balance.


 


2.3.2        Payment of Benefit.  The
Company shall pay the benefit to the Executive in twelve (12) equal monthly
installments commencing on the first day of the month following the Executive’s
Normal Retirement Age.  The benefit shall
be paid to the Executive for fifteen (15) years.


 


2.4           Disability Benefit.  Upon
Separation from Service due to Disability prior to Normal Retirement Age, the
Company shall pay to the Executive the benefit described in this Section 2.4 in
lieu of any other benefit under this Article.


 


2.4.1        Amount of Benefit.  The
benefit under this Section 2.4 is the Disability Benefit set forth on Schedule
A for the Plan Year during which the date Separation from Service occurs.  This benefit is determined by vesting the
Executive in one hundred percent (100%) of the Accrual Balance.


 


2.4.2        Payment of Benefit.  The
Company shall pay the benefit to the Executive in


 


4

















 


twelve
(12) equal monthly installments commencing on the first day of the month
following the Executive’s Normal Retirement Age.  The benefit shall be paid to the Executive
for fifteen (15) years.


 


2.5           Restriction on Timing of Distribution.  Notwithstanding any provision of this
Agreement to the contrary, if the Executive is considered a Specified Employee
at Separation from Service under such procedures as established by the Company
in accordance with Section 409A of the Code, benefit distributions that are
made upon Separation from Service may not commence earlier than six (6) months
after the date of such Separation from Service.  Therefore, in the event this Section 2.5 is
applicable to the Executive, any payment or series of payments to be made due
to a Separation from Service shall commence no earlier that the first day of the
seventh month following the Separation from Service.


 


2.6           Distributions Upon Income Inclusion Under
Section 409A of the Code.  Upon the inclusion of any portion of the
Accrual Balance into the Executive income as a result of the failure of this
non-qualified deferred compensation plan to comply with the requirements of
Section 409A of the Code, to the extent such tax liability can be covered by
the participant’s vested Accrual Balance, a distribution shall be made as soon
as is administratively practicable following the discovery of the plan failure.


 


Article 3


Death Benefits


 


3.1           Death During
Active Service.  If the Executive dies while in the active
service of the Company, the Company shall pay to the Beneficiary the benefit
described in this Section 3.1.  This
benefit shall be paid in lieu of the benefits under Article 2.


 


3.1.1        Amount of Benefit.  The
annual benefit under this Section 3.1 is thirty percent (30%) of Final Pay.


 


3.1.2        Payment of Benefit.  The
Company shall pay the annual benefit to the Executive’s Beneficiary in twelve
(12) equal monthly installments commencing on the first day of the month
following the Executive’s death.  The
annual benefit shall be paid to the Executive’s Beneficiary for a period of
fifteen (15) years.


 


3.2           Death During
Payment of a Benefit.  If the Executive dies after any benefit
payments have commenced under Article 2 of this Agreement but before receiving
all such payments, the Company shall pay the remaining benefits to the
Beneficiary at the same time and in the same amounts they would have been paid
to the Executive had the Executive survived.


 


3.3           Death After Separation from Service But Before Payment of a Benefit Commences.  If the Executive is entitled to any benefit
payments under Article 2 of this Agreement, but dies prior to the commencement
of said benefit payments, the Company shall pay the same benefit payments to
the Beneficiary that the Executive was entitled to prior to death except that
the benefit payments shall commence on the first day of the month following


 


5

















 


the
date of the Executive’s death.


 


Article 4


Beneficiaries


 


4.1           Beneficiary
Designation.  The Executive shall have the right, at any
time, to designate a Beneficiary(ies) to receive any benefits payable under
this Agreement upon the death of the Executive. 
The Beneficiary designated under this Agreement may be the same as or
different from the beneficiary designation under any other benefit plan of the
Company in which the Executive participates.


 


4.2           Beneficiary Designation: Change.  The
Executive shall designate a Beneficiary by completing and signing the
Beneficiary Designation Form, and delivering it to the Plan Administrator or
its designated agent.  The Executive’s
Beneficiary designation shall be deemed automatically revoked if the
Beneficiary predeceases the Executive or if the Executive names a spouse as
Beneficiary and the marriage is subsequently dissolved.  The Executive shall have the right to change
a Beneficiary by completing, signing and otherwise complying with the terms of
the Beneficiary Designation Form and the Plan Administrator’s rules and
procedures, as in effect from time to time. 
Upon the acceptance by the Plan Administrator of a new Beneficiary
Designation Form, all Beneficiary designations previously filed shall be
cancelled.  The Plan Administrator shall
be entitled to rely on the last Beneficiary Designation Form filed by the
Executive and accepted by the Plan Administrator prior to the Executive’s
death.


 


4.3           Acknowledgment.  No
designation or change in designation of a Beneficiary shall be effective until
received, accepted and acknowledged in writing by the Plan Administrator or its
designated agent.


 


4.4           No Beneficiary Designation.  If
the Executive dies without a valid beneficiary designation, or if all
designated Beneficiaries predecease the Executive, then the Executive’s spouse
shall be the designated Beneficiary.  If
the Executive has no surviving spouse, the benefits shall be made to the
personal representative of the Executive’s estate.


 


4.5           Facility of
Payment.  If the Plan Administrator determines in its
discretion that a benefit is to be paid to a minor, to a person declared
incompetent, or to a person incapable of handling the disposition of that
person’s property, the Plan Administrator may direct payment of such benefit to
the guardian, legal representative or person having the care or custody of such
minor, incompetent person or incapable person. 
The Plan Administrator may require proof of incompetence, minority or
guardianship as it may deem appropriate prior to distribution of the
benefit.  Any payment of a benefit shall
be a payment for the account of the Executive and the Executive’s Beneficiary,
as the case may be, and shall be a complete discharge of any liability under
the Agreement for such payment amount.


 


6

















 


Article
5


General Limitations


 


5.1           Termination for
Cause.  Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement if the Company’s Board terminates the Executive’s employment for:


 


(a)           Gross negligence or gross neglect of duties
to the Company;


 


(b)           Commission of a felony or of a gross
misdemeanor involving moral turpitude;


 


(c)           Fraud, disloyalty, dishonesty, or willful
violation of any law or significant Company policy committed in connection with
the Executive’s employment and resulting in a material adverse effect on the
Company; or


 


(d)           Issuance of an order for removal of the
Executive by the Company’s banking regulators.


 


5.2           Suicide or
Misstatement.  The Company shall not pay any benefit under
this Agreement if the Executive commits suicide within two years after the
Effective Date.  In addition, the Company
shall not pay any benefit under this Agreement if the Executive has made any
material misstatement of fact on any application for life insurance owned by
the Company on the Executive’s life.


 


Article 6


Claims and Review Procedures


 


6.1           Claims Procedure.  An
Executive or Beneficiary (“claimant”) who has not received benefits under the
Agreement that he or she believes should be paid shall make a claim for such
benefits as follows:


 


6.1.1        Initiation – Written Claim.  The
claimant initiates a claim by submitting to the Plan Administrator a written
claim for the benefits.  If such a claim
relates to the contents of a notice received by the claimant, the claim must be
made within sixty (60) days after such notice was received by the claimant.  All other claims must be made within one
hundred eighty (180) days of the date on which the event that caused the
claim to arise occurred.  The claim must
state with particularity the determination desired by the claimant.


 


6.1.2        Timing of Plan Administrator Response.  The
Plan Administrator shall respond to such claimant within 90 days after
receiving the claim.  If the Plan
Administrator determines that special circumstances require additional time for
processing the claim, the Plan Administrator can extend the response period by
an additional 90 days by notifying the claimant in writing, prior to the end of
the initial 90-day


 


7

















 


period,
that an additional period is required. 
The notice of extension must set forth the special circumstances and the
date by which the Plan Administrator expects to render its decision.


 


6.1.3        Notice of Decision.  If
the Plan Administrator denies part or all of the claim, the Plan Administrator
shall notify the claimant in writing of such denial.  The Plan Administrator shall write the
notification in a manner calculated to be understood by the claimant.  The notification shall set forth:


 


(a)           The specific reasons for the denial;


(b)           A reference to the specific provisions of the Agreement on which the
denial is based;


(c)           A description of any additional information or material necessary for
the claimant to perfect the claim and an explanation of why it is needed;


(d)           An explanation of the Agreement’s review procedures and the time limits
applicable to such procedures; and


(e)           A statement of the claimant’s right to bring a civil action under ERISA
Section 502(a) following an adverse benefit determination on review.


 


6.2           Review Procedure.  If
the Plan Administrator denies part or all of the claim, the claimant shall have
the opportunity for a full and fair review by the Plan Administrator of the
denial, as follows:


 


6.2.1        Initiation – Written Request.  To
initiate the review, the claimant, within 60 days after receiving the Plan
Administrator’s notice of denial, must file with the Plan Administrator a
written request for review.


 


6.2.2        Additional Submissions – Information Access.  The
claimant shall then have the opportunity to submit written comments, documents,
records and other information relating to the claim.  The Plan Administrator shall also provide the
claimant, upon request and free of charge, reasonable access to, and copies of,
all documents, records and other information relevant (as defined in applicable
ERISA regulations) to the claimant’s claim for benefits.


 


6.2.3        Considerations on Review.  In
considering the review, the Plan Administrator shall take into account all
materials and information the claimant submits relating to the claim, without
regard to whether such information was submitted or considered in the initial
benefit determination.


 


6.2.4        Timing of Plan Administrator Response.  The
Plan Administrator shall respond in writing to such claimant within 60 days
after receiving the request for review. 
If the Plan Administrator determines that special circumstances require
additional time for processing the claim, the Plan Administrator can extend the
response period by an additional 60 days by notifying the claimant in writing,
prior to the end of the initial 60-day period, that an additional period is
required.  The notice of extension must
set forth the special circumstances and the date by which the


 


8

















 


Plan
Administrator expects to render its decision.


 


6.2.5        Notice of Decision.  The
Plan Administrator shall notify the claimant in writing of its decision on
review.  The Plan Administrator shall
write the notification in a manner calculated to be understood by the
claimant.  The notification shall set
forth:


 


(a)           The specific reasons for the denial;


(b)           A reference to the specific provisions of the Agreement on which the
denial is based;


(c)           A statement that the claimant is entitled to receive, upon request and
free of charge, reasonable access to, and copies of, all documents, records and
other information relevant (as defined in applicable ERISA regulations) to the
claimant’s claim for benefits; and


(d)           A statement of the claimant’s right to bring a civil action under ERISA
Section 502(a).


 


Article 7


Amendments and Termination


 


7.1           Amendments.  This Agreement may be amended
only by a written agreement signed by the Company and the Executive.  However, the Company may unilaterally amend
this Agreement to conform with written directives to the Company from its
auditors or banking regulators or to comply with legislative or tax law,
including without limitation Section 409A of the Code and any and all
regulations and guidance promulgated thereunder.


 


7.2           Plan Termination Generally.  The
Company may unilaterally terminate this Agreement at any time.  The benefit shall be the Accrual Balance as
of the date the Agreement is terminated. 
Except as provided in Section 7.3, the termination of this Agreement
shall not cause a distribution of benefits under this Agreement.  Rather, upon such termination benefit distributions
will be made at the earliest distribution event permitted under Article 2 or
Article 3.


 


7.3           Plan Terminations Under Section 409A. 
Notwithstanding anything to the contrary in Section 7.2, if the Company
terminates this Agreement in the following circumstances:


 


(a)           Within thirty (30) days before, or twelve (12) months after a change in
control, as defined in Section 409A of the Code, provided that all
distributions are made no later than twelve (12) months following such
termination of the Agreement and provided that all the
Company’s arrangements which are substantially similar to the Agreement
are terminated so the Executive and all participants in the
similar arrangements are required to receive all amounts of compensation
deferred under the terminated arrangements within twelve (12) months of the
termination of the arrangements;


(b)           Upon the Company’s dissolution or with the approval of a bankruptcy
court


 


9

















 


provided that the amounts deferred under the Agreement are included in
the Executive’s gross income in the latest of (i) the calendar year in which
the Agreement terminates; (ii) the calendar year in which the amount is no
longer subject to a substantial risk of forfeiture; or (iii) the first calendar
year in which the payment is administratively practical; or


(c)           Upon the Company’s termination of this and all other non-account
balance plans (as referenced in Section 409A of the Code or the regulations
thereunder), provided that all distributions are made no earlier than twelve
(12) months and no later than twenty-four (24) months following such
termination, and the Company does not adopt any new non-account balance plans
for a minimum of five (5) years following the date of such termination;


 


the Company may distribute the Accrual Balance, determined as of the
date of the termination of the Agreement, to the Executive in a lump sum
subject to the above terms.


 


Article 8


Administration of Agreement


 


8.1           Plan Administrator
Duties.  This Agreement shall
be administered by a Plan Administrator which shall consist of the Board, or
such committee or person(s) as the Board shall appoint.  The Executive may be a member of the Plan
Administrator.  The Plan Administrator
shall also have the discretion and authority to (i) make, amend, interpret and
enforce all appropriate rules and regulations for the administra­tion of this
Agreement and (ii) decide or resolve any and all ques­tions including
interpretations of this Agreement, as may arise in connection with the
Agreement.


 


8.2           Agents.  In the administration of this Agreement, the
Plan Administrator may employ agents and delegate to them such administrative
duties as it sees fit, (including acting through a duly appointed
representative), and may from time to time consult with counsel who may be
counsel to the Company.


 


8.3           Binding Effect of
Decisions.  The decision or
action of the Plan Administrator with respect to any question arising out of or
in connection with the administration, interpretation and application of the
Agreement and the rules and regulations promulgated hereunder shall be final
and conclusive and binding upon all persons having any interest in the
Agreement.  No Executive or Beneficiary
shall be deemed to have any right, vested or nonvested, regarding the continued
use of any previously adopted assumptions, including but not limited to the
Discount Rate.


 


8.4           Indemnity of Plan
Administrator.  The Company shall
indemnify and hold harmless the members of the Plan Administrator against any
and all claims, losses, damages, expenses or liabilities arising from any
action or failure to act with respect to this Agreement, except in the case of
willful misconduct by the Plan Administrator or any of its members.


 


8.5           Company Information.  To
enable the Plan Administrator to perform its functions, the Company shall
supply full and timely information to the Plan Administrator on all


 


10

















 


matters
relating to the date and circum­stances of the retirement, Disability, death,
or Separation from Service of the Executive, and such other pertinent
information as the Plan Administrator may reasonably require.


 


8.6           Annual Statement.  The
Plan Administrator shall provide to the Executive, within 120 days after the
end of each Plan Year, a statement setting forth the benefits payable under
this Agreement.


 


Article 9


Miscellaneous


 


9.1           Binding Effect.  This
Agreement shall bind the Executive and the Company, and their beneficiaries,
survivors, executors, successors, administrators and transferees.


 


9.2           No Guarantee of
Employment.  This Agreement is not an employment policy or
contract.  It does not give the Executive
the right to remain an employee of the Company, nor does it interfere with the
Company’s right to discharge the Executive. 
It also does not require the Executive to remain an employee nor
interfere with the Executive’s right to terminate employment at any time.


 


9.3           Non-Transferability. 
Benefits under this Agreement cannot be sold, transferred, assigned, pledged,
attached or encumbered in any manner.


 


9.4           Tax Withholding.  The
Company shall withhold any taxes that are required to be withheld, including
but not limited to taxes owed under Section 409A of the Code and regulations
thereunder, from the benefits provided under this Agreement.  Executive acknowledges that the Company’s
sole liability regarding taxes is to forward any amounts withheld to the
appropriate taxing authority(ies). 
Further, the Company shall satisfy all applicable reporting
requirements, including those under Section 409A of the Code and regulations
thereunder.


 


9.5           Applicable Law.  The
Agreement and all rights hereunder shall be governed by the laws of the State
of GEORGIA, except to the extent preempted by the laws of the United States of
America.


 


9.6           Unfunded
Arrangement.  The Executive and Beneficiary are general
unsecured creditors of the Company for the payment of benefits under this
Agreement.  The benefits represent the
mere promise by the Company to pay such benefits.  The rights to benefits are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors.  Any insurance on the Executive’s life is a
general asset of the Company to which the Executive and Beneficiary have no
preferred or secured claim.


 


9.7           Reorganization.  The Company shall not merge or
consolidate into or with another company, or reorganize, or sell substantially
all of its assets to another company, firm, or person unless such succeeding or
continuing company, firm, or person agrees to assume


 


11

















 


and
discharge the obligations of the Company under this Agreement.  Upon the occurrence of such event, the term
“Company” as used in this Agreement shall be deemed to refer to the successor
or survivor company.


 


9.8           Entire Agreement. 
This Agreement
constitutes the entire agreement between the Company and the Executive as to
the subject matter hereof.  No rights are
granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.


 


9.9           Interpretation.  Wherever
the fulfillment of the intent and purpose of this Agreement requires, and the
context will permit, the use of the masculine gender includes the feminine and
use of the singular includes the plural.


 


9.10         Alternative Action.  In
the event it shall become impossible for the Company or the Plan Administrator
to perform any act required by this Agreement, the Company or Plan
Administrator may in its discretion perform such alternative act as most nearly
carries out the intent and purpose of this Agreement and is in the best
interests of the Company.


 


9.11         Headings.  Article
and section headings are for convenient reference only and shall not control or
affect the meaning or construction of any of its provisions.


 


9.12         Validity.  In case any provision of this
Agreement shall be illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining parts hereof, but this Agreement
shall be construed and enforced as if such illegal and invalid provision has
never been inserted herein.


 


9.13         Notice.  Any
notice or filing required or permitted to be given to the Company or Plan
Administrator under this Agreement shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the address below: 


 




	
  4077
  Forsyth Road

  
	
  Macon,
  GA 31210

  
	
   

  






 


Such
notice shall be deemed given as of the date of delivery or, if delivery is made
by mail, as of the date shown on the postmark on the receipt for registration
or certification.


 


Any
notice or filing required or permitted to be given to the Executive under this
Agreement shall be sufficient if in writing and hand-delivered, or sent by
mail, to the last known address of the Executive.


 


9.14         Compliance with Section 409A.  This
Agreement shall at all times be administered and the provisions of this
Agreement shall be interpreted consistent with the requirements of Section 409A
of the Code and any and all regulations thereunder, including such regulations
as may be promulgated after the Effective Date of this Agreement.


 


12

















 


9.15         Rescissions.  Any
modification to the terms of this Agreement that would inadvertently result in
an additional tax liability on the part of the Executive, shall have no effect
to the extent the change in the terms of the plan is rescinded by the earlier
of a date before the right is exercised (if the change grants a discretionary
right) and the last day of the calendar year during which such change occurred.


 


IN WITNESS WHEREOF, the Executive and a duly authorized representative
of the Company have signed this Agreement.


 


	
  EXECUTIVE:

  	
  COMPANY:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NEW
  SOUTHERN BANK

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By 

  	
   

  	
   

  
	
  BRANDON L. MERCER

  	
   

  	
   

  
	
   

  	
  Title
  

  	
   

  	
   

  
							



 


13

















 


o            New Designation


o            Change in Designation


 


I, BRANDON L. MERCER, designate the following as beneficiary of
benefits under the Agreement payable following my death:


 


	
  Primary:

  	
   

  	
  %

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  %

  
	
   

  	
   

  	
   

  
	
  Contingent:

  	
   

  	
  %

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  %

  



 


Notes:


•      Please PRINT CLEARLY or TYPE the
names of the beneficiaries.


•      To name a trust as beneficiary,
please provide the name of the trustee(s) and the exact name and date of
the trust agreement.


•      To name your estate as
beneficiary, please write “Estate of _[your name]_”.


•      Be aware that none of the
contingent beneficiaries will receive anything unless ALL of the primary
beneficiaries predecease you.


 


I understand that I may change these beneficiary designations by
delivering a new written designation to the Plan Administrator, which shall be
effective only upon receipt and acknowledgment by the Plan Administrator prior
to my death.  I further understand that
the designations will be automatically revoked if the beneficiary predeceases
me, or, if I have named my spouse as beneficiary and our marriage is
subsequently dissolved.


 


	
  Name:

  	
  BRANDON L. MERCER

  	
   

  	
   

  
	
   

  	
   

  
	
  Signature:

  	
   

  	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Received by the
  Plan Administrator this          day
  of                                   ,
  20     

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Title: