Change in Control Agreement




UNITED COMMUNITY BANK OF WEST
GEORGIA

CHANGE IN CONTROL AGREEMENT

 

THIS
AGREEMENT made as of this ___ day of ___________, 2001, by and between UNITED
COMMUNITY BANK OF WEST GEORGIA, a Georgia Bank (the "Bank"), and
Timothy I. Warren (the "Executive");

WHEREAS, the Executive is a key
employee of the Bank and/or its wholly-owned subsidiaries, and an integral part
of the management team; and

WHEREAS, the Bank wishes to
assure both itself and its key employees of continuity of management and
objective control of the Bank; and

WHEREAS, the Bank considers it
desirable and in its best interests to enter into an agreement which provides
that in the event the Executive’s employment is terminated in conjunction with
a change in control of the Bank, the Executive shall, subject to the terms and
conditions provided for herein, receive a termination payment, which payment is
not intended to exceed the compensation the Executive could have reasonably
expected to receive in absence of a change in control of the Bank;

NOW, THEREFORE, the parties
agree as follows:

1.          BENEFITS PAYABLE UPON
CHANGE IN CONTROL.

(a)          The
term of this Agreement shall be for a rolling, one (1) year term commencing on
the date hereof, and shall be deemed automatically (without further action by
either the Bank or the Executive) to extend each day for an additional day such
that the remaining term of the Agreement shall continue to be one (1) year;
provided, that the Bank may, by notice to the Executive, cause this Agreement to
cease to extend automatically and, upon such notice, the "Term" of
this Agreement shall be one (1) year following such notice.

(b)          No
provision of this Paragraph 1 shall be operative unless, during the Term of this
Agreement, there has been a Change in Control of the Bank. Upon such a Change in
Control of the Bank, all the provisions of this Paragraph 1 shall become
operative immediately.

(c)          If
a Change in Control occurs during the term of this Agreement and the Executive’s
employment is terminated (i) within twelve (12) months following the date of the
Change in Control, or (ii) within three (3) months prior to the date of the
Change in Control as a part of such Change in Control, as a result of
Involuntary Termination or Voluntary Termination, the Executive shall be
entitled to a lump sum cash payment equal to two times the Executive’s total
compensation as shown on his federal W-2 Form (or similar form replacing such
form) for the calendar year preceding the calendar year in which the Executive’s
employment is terminated. The payment to the Executive shall be made not later
than fifteen (15) days after his termination of employment.

(d)          For
the purposes of this Paragraph 1, the following terms shall have the meanings
set forth below:

        (i)          The
        term "Change in Control" shall mean (A) the acquisition,
        directly or indirectly, by any "person" as such term is used
        in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
        amended, (excluding any "person" who on the date

         

         



         


        hereof owns
        or controls 10% or more of the voting power of the Bank’s Common
        Stock), of securities of the Bank representing an aggregate of
        twenty-five percent (25%) or more of the combined voting power of the
        Bank’s then outstanding securities within any twelve (12) month
        period; provided, that for purposes of this definition,
        "acquisition" shall not include shares which are received by a
        person through gift, inheritance, under a will or otherwise through the
        laws of descent and distribution; (B) during any period of two
        consecutive years, individuals who at the beginning of such period
        constitute the Board, cease for any reason to constitute at least a
        majority thereof, unless the election of each new director was approved
        in advance by a vote of at least a majority of the directors then still
        in office who were directors at the beginning of the period; or, (C) the
        occurrence of any other event or circumstance which is not covered by
        (A) or (B) above which the Board determines affects control of the Bank
        and adopts a resolution that such event or circumstance constitutes a
        Change in Control for the purposes of this Agreement.

        (ii)          The
        term "Cause" shall mean and be limited to any act that
        constitutes, on the part of the Executive, fraud, dishonesty, a felony
        or gross malfeasance of duty and that directly results in material
        injury to the Bank.

        (iii)          The
        term "Disability" shall mean the Executive’s inability as a
        result of physical or mental incapacity to substantially perform his
        duties for the Bank on a full-time basis for a period of six (6) months.

        (iv)          The
        term "Involuntary Termination" shall mean termination of
        employment that is involuntary on the part of the Executive and that
        occurs for reasons other than for Cause, Disability, voluntary
        retirement (including early retirement) within the meaning of the Bank’s
        retirement plan, or death.

        (v)         The
        term "Voluntary Termination" shall mean termination of
        employment that is voluntary on the part of the Executive, and, in the
        judgment of the Executive, is due to (A) a reduction of the Executive’s
        responsibilities resulting solely from the assignment to the Executive
        of any duties inconsistent with his positions, duties or
        responsibilities as in effect immediately prior to the Change in
        Control; (B) a reduction in the Executive’s compensation (other than a
        reduction resulting from performance related bonuses, so long as such
        bonuses are paid under plans reasonably designed to avoid any such
        reduction except as the result of relatively poor performance results)
        or the failure to provide substantially equivalent benefits, or (C) a
        forced relocation more than 15 miles from Executive’s principal
        assigned location prior to such change in control. A termination shall
        not be considered voluntary within the meaning of this Agreement if such
        termination is a result of Cause, Disability, voluntary retirement
        (including early retirement) within the meaning of the Bank’s
        retirement plan, or death of the Executive.

2.          LIMITATION
OF BENEFITS.

(a)          Notwithstanding
anything in this Agreement to the contrary, if any of the compensation or
benefits payable, or to be provided, to the Executive by the Bank under this
Agreement are treated as Excess Severance Payments (whether alone or in
conjunction with payments or benefits outside of this Agreement), the
compensation and benefits provided under this Agreement shall be modified or
reduced in the manner provided in Paragraph (b) below to the extent necessary so
that the compensation and benefits payable or to be provided to Executive under
this Agreement that are treated as Severance Payments, as well as any
compensation or benefits provided outside of this Agreement that are so treated,
shall not cause the Bank to have paid an Excess Severance Payment. In computing
such amount, the parties shall take into account all provisions of Code Section
280G, and the regulations thereunder, including making appropriate adjustments
to such calculation for amounts established to be Reasonable Compensation.

 



 


 

(b)          In
the event that the amount of any Severance Payments which would be payable to or
for the benefit of the Executive under this Agreement must be modified or
reduced to comply with this Paragraph, the Executive shall direct which
Severance Payments are to be modified or reduced; provided, however, that no
increase in the amount of any payment shall be made without the consent of the
Bank.

(c)         This
Paragraph shall be interpreted so as to avoid the imposition of excise taxes on
the Executive under Section 4999 of the Code or the disallowance of a deduction
to the Bank pursuant to Section 280G(a) of Code with respect to amounts payable
under this Agreement. In connection with any Internal Revenue Service
examination, audit or other inquiry, the Bank and Executive agree to take action
to provide, and to cooperate in providing, evidence to the Internal Revenue
Service (and, if applicable, the state revenue department) that the compensation
and benefits provided under this Agreement do not result in the payment of
Excess Severance Payments.

(d)          In
addition to the limits otherwise provided in this Article, to the extent
permitted by law the Executive may in his sole discretion elect to reduce (or
change the timing of) any payments he may be eligible to receive under this
Agreement to prevent the imposition of excise taxes on the Executive under
Section 4999 of the Code or otherwise reduce or delay liability for taxes owed
under the Code.

(e)          For
the purposes of this Paragraph 2, the following terms shall have the meanings
set forth below:

        (i)         The
        term "Excess Severance Payment" shall have the same meaning as
        the term "excess parachute payment" defined in Section
        280G(b)(1) of the Code.

        (ii)          The
        term "Severance Payment" shall have the same meaning as the
        term "parachute payment" defined in Section 280G(b)(2) of the
        Code.

        (iii)          The
        term "Reasonable Compensation" shall have the same meaning as
        provided in Section 280G(b)(4) of the Code.

3.       MISCELLANEOUS.

(a)          This
Agreement shall be binding upon, and inure to the benefit of, the Executive and
his executors, representatives and assigns, and the Bank and its successors and
assigns.

(b)          This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Georgia.

(c)          This
Agreement shall not be construed as giving to the Executive the right to be
retained in the employ of the Bank or any of its affiliates.

(d)          This
Agreement may only be amended by an instrument in writing executed by both of
the parties.



 


 

IN WITNESS WHEREOF, the
undersigned have executed this Agreement as of the date first above written.

 

	
Executive:

 

___________________________________

Timothy I. Warren

    	
 UNITED COMMUNITY BANK OF

WEST GEORGIA

 

By:_____________________________________

Title:____________________________________