EXHIBIT 10.2


 


EMPLOYMENT AGREEMENT


 


                THIS
AGREEMENT is made as of the
           day of
                        ,
2008, by and between ATLANTIC SOUTHERN BANK, a bank organized under the laws of
the State of Georgia (the “Bank”) and CAROL SOTO, a resident of the State of
Georgia (the “Executive”).


 


RECITALS:


 


The Bank employs the Executive as Chief Financial
Officer of the Bank pursuant to that certain employment agreement dated July 10,
2003 (the “Prior Employment Agreement”).


 


The parties to the Prior Employment Agreement
desire to amend and restate the Prior Employment Agreement on the terms and
conditions set forth herein.


 


In consideration of the above premises and the
mutual agreements hereinafter set forth, the parties hereby agree as follows:


 


23.          Definitions.  Whenever
used in this Agreement, the following terms and their variant forms shall have
the meaning set forth below:


 


23.1        “Affiliate” shall mean any business
entity which controls the Bank, is controlled by or is under common control
with the Bank.


 


23.2        “Agreement” shall mean this
Agreement and any exhibits incorporated herein together with any amendments
hereto made in the manner described in this Agreement.


 


23.3        “Area” shall mean the geographic area within the
boundaries of Bibb, Houston, Crawford, Peach, Effingham, McIntosh, Glynn,
Lowndes and Chatham Counties, Georgia and Duval County, Florida.  It is the express intent of the parties that
the Area as defined herein is the area where the Executive performs services on
behalf of the Bank under this Agreement.


 


23.4        “Business of the Bank” shall mean the business
conducted by the Bank, which is the business of commercial banking.


 


23.5        “Cause” shall mean:


 


1.5.1             With respect to termination by the
Bank:


 


(a)           A material breach of the terms of this
Agreement by the Executive, including, without limitation, failure by the
Executive to perform her duties and responsibilities in the manner and to the
extent required under this Agreement;


 


(b)           Conduct by the Executive that amounts
to fraud, dishonesty or willful misconduct in the performance of her duties and
responsibilities hereunder;


 


(c)           Arrest
for, charged in relation to (by criminal information, indictment or otherwise),
or conviction of the Executive during the Term of this Agreement of a crime involving
breach of trust or moral turpitude or any felony;


 


(d)           Conduct
by the Executive that amounts to gross and willful insubordination or
inattention to her duties and responsibilities hereunder; or


 


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(e)           Conduct
by the Executive that results in removal from her position as an officer or
executive of the Bank pursuant to a written order by any regulatory agency with
authority or jurisdiction over the Bank.


 


1.5.2                With
respect to termination by the Executive, means one or more of the following
conditions which arises without the consent of the Executive: a material
diminution in the authority, responsibilities or duties of the Executive
hereunder or a material breach of the terms of this Agreement by the Bank;
provided, however, that for a termination of employment by the Executive to be
for Cause, the Executive must give the Bank written notice of the event giving
rise to Cause within thirty (30) days following the occurrence of the event,
the event must remain uncured after the expiration of thirty (30) days
following the delivery of written notice of such event to the Bank by the
Executive, and the Executive must resign effective immediately following the
Bank’s failure to cure the event.


 


23.6        “Change of Control” means any one of the
following events which may occur after the Original Effective Date:


 


(a)           the
acquisition by any one person, or more than one person acting as a group (other
than any person or more than one person acting as a group who is considered to
own more than fifty percent (50%) of the total fair market value or total
voting power of the Holding Company or the Bank prior to such acquisition) of
stock of the Holding Company or the Bank that, together with stock held by such
person or group, constitutes more than fifty percent (50%) of the total fair
market value or total voting power of the stock of the Holding Company or the
Bank, as applicable; provided, however, that for purposes of this subsection,
any acquisition described in subsection (c) below shall not be deemed to
be a Change of Control;


 


(b)           within
any twelve-month period (beginning on or after the Original Effective Date) the
date a majority of members of the board of directors of the Holding Company is
replaced by directors whose appointment or election is not endorsed by a
majority of the members of the Holding Company’s board of directors before the
date of the appointment or election;


 


(c)           within
any twelve-month period (beginning on or after the Original Effective Date) the
acquisition by any one person, or more than one person acting as a group, of
ownership of stock of the Holding Company possessing forty percent (40%) or
more of the total voting power of the stock of the Holding Company; or


 


(d)           within
any twelve-month period (beginning on or after the Original Effective Date) the
acquisition by any one person, or more than one person acting as a group, of
the assets of the Holding Company and the Bank that have a total gross fair
market value of eighty-five percent (85%) or more of the total gross fair
market value of all of the assets of the Holding Company and the Bank
immediately before such acquisition or acquisitions; provided, however, that
transfers to the following entities or person(s) shall not be deemed to result
in a Change of Control under this subsection (d):


 


(i)            an
entity that is controlled by the shareholders of the Holding Company or the
Bank immediately after the transfer;


 


(ii)           a
shareholder (determined immediately before the asset transfer) of the Holding
Company or the Bank in exchange for or with respect to its stock;


 


(iii)          an
entity, fifty percent (50%) or more of the total value or voting power of which
is owned, directly or indirectly, by the Holding Company or the Bank;


 


(iv)          a
person, or more than one person acting as a group, that owns, directly or
indirectly, fifty percent (50%) or more of the total value or voting power of
all the outstanding stock of the Holding Company or the Bank; or


 


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(v)           an
entity, at least fifty percent (50%) of the total value or voting power of
which is owned, directly or indirectly, by a person described in the above
subsection (d)(iv).


 


Notwithstanding the foregoing, no Change of
Control shall be deemed to have occurred for purposes of this Agreement by
reason of: (A) a merger, consolidation, reorganization or other
transaction as to which the holders of the capital stock of the Holding Company
before the transaction continue after the transaction to hold, directly or
indirectly through a holding company or otherwise, shares of capital stock of
the Holding Company (or other surviving company) representing more than fifty
percent (50%) of the value or ordinary voting power to elect directors of the
capital stock of the Holding Company (or other surviving company); or (B) any
actions or events in which the Executive participates in a capacity other than
in the Executive’s capacity as an employee, director or shareholder of either
the Holding Company or the Bank.  For purposes of this Section 1.6,
persons will be considered to be acting as a group if they are owners of a
corporation that enters into a merger, consolidation, purchase or acquisition
of stock, or similar business transaction with the Holding Company or the Bank.


 


23.7        “Code” shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.


 


23.8        “Competing Business” shall mean any business
engaged in the Business of the Bank.


 


23.9        “Confidential Information” means data and
information relating to the Business of the Bank (which does not rise to the
status of a Trade Secret) which is or has been disclosed to the Executive or of
which the Executive became aware as a consequence of or through the Executive’s
relationship to the Bank and which has value to the Bank and is not generally
known to its competitors.  Confidential
Information shall not include any data or information that has been voluntarily
disclosed to the public by the Bank (except where such public disclosure has
been made by the Executive without authorization) or that has been
independently developed and disclosed by others, or that otherwise enters the
public domain through lawful means.


 


23.10      “Disability” shall mean the
inability of the Executive to perform each of her material duties under this
Agreement for the duration of the short-term disability period under the Bank’s
policy then in effect, or, if no such policy is in effect, a period of ninety
(90) consecutive days.  The Executive’s
Disability shall be certified by a physician chosen by the Bank and reasonably
acceptable to the Executive.


 


23.11      “Disability Period” means a period,
beginning on the date the Bank determines that the Executive is subject to a
Disability and ending on the earlier of the date the Executive begins receiving
income replacement benefits under any long term disability plan or policy
maintained by the Bank or the date that is three (3) months  after such determination, during which the Executive
remains subject to a Disability.


 


23.12      “Effective Date” shall mean the date set
forth above as of which the Agreement is executed.


 


23.13      “Employer Information” shall mean Confidential
Information and Trade Secrets.


 


23.14      “Holding Company”
means the Bank’s parent, Atlantic Southern Financial Group, Inc.


 


23.15      “Initial Term” shall mean that period
of time commencing on the Original Effective Date and running until the earlier
of the close of business on the last business day immediately preceding the
third anniversary of the Original Effective Date or any earlier termination of
employment of the Executive under this Agreement as provided for in Section 3.


 


23.16      “Original Effective Date”
means:


 


(a)           with
respect to events relating to the Bank, and for purposes of Section 1.15
above, July 10, 2003; and


 


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(b)           with
respect to events relating to the Holding Company, the date immediately
following the date of formation of the Holding Company.


 


23.17      “Separation from Service” shall mean a termination
of the Executive’s employment with the Bank and all affiliated companies that,
together with the Bank, constitute the ‘service recipient’ within the meaning
of Code Section 409A and the regulations thereunder that constitutes a ‘separation
from service’ within the meaning of Code Section 409A and the regulations
thereunder.


 


23.18      “Term” shall mean the Initial
Term and all subsequent renewal periods.


 


23.19      “Trade Secrets” means Employer
Information including, but not limited to, technical or nontechnical data,
formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, product plans or lists of
actual or potential customers or suppliers which:


 


(a)           derives
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and


 


(b)           is
the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.


 


24.          Duties.


 


24.1        Position.  The Executive is employed as the Chief
Financial Officer of the Bank and, subject to the direction of the President
and Chief Executive Officer of the Bank or his designee(s), shall perform and
discharge well and faithfully the duties which may be assigned to her from time
to time by the Bank in connection with the conduct of its business.


 


24.2        Full-Time Status.  In addition to the duties and responsibilities
specifically assigned to the Executive pursuant to Section 2.1 hereof, the
Executive shall:


 


(a)           devote
substantially all of her time, energy and skill during regular business hours
to the performance of the duties of her employment (reasonable vacations and
reasonable absences due to illness excepted) and faithfully and industriously
perform such duties;


 


(b)           diligently
follow and implement all reasonable and lawful management policies and
decisions communicated to her by the President and Chief Executive Officer of
the Bank; and


 


(c)           timely
prepare and forward to the President and Chief Executive Officer of the Bank
all reports and accountings as may be requested of the Executive.


 


24.3        Permitted Activities.  The Executive shall devote her entire
business time, attention and energies to the Business of the Bank and shall not
during the Term be engaged (whether or not during normal business hours) in any
other business or professional activity, whether or not such activity is
pursued for gain, profit or other pecuniary advantage; but this shall not be
construed as preventing the Executive from:


 


(a)           investing
her personal assets in businesses which are not Competing Businesses (subject
to clause (b) below) and which will not require any services on the part
of the Executive in their operation or affairs and in which her participation
is solely that of an investor;


 


(b)           purchasing
securities in any corporation whose securities are regularly traded provided
that such purchase shall not result in her collectively owning beneficially at
any time five percent (5%) or more of the equity securities of any Competing
Business; and


 


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(c)           participating
in civic and professional affairs and organizations and conferences, preparing
or publishing papers or books or teaching so long as the President and Chief
Executive Officer approves in writing of such activities prior to the Executive’s
engaging in them.


 


25.          Term and Termination.


 


25.1        Term.     This Agreement shall remain in effect for the Term.  While this Agreement remains in effect, at
the end of the Initial Term and at the end of any twelve-month extension
thereof, this Agreement shall automatically be extended for a successive
twelve-month period unless either party gives written notice to the other of
its or her intent not to extend this Agreement with such written notice to be
given not less than sixty (60) days prior to the end of the Initial Term or
such twelve-month period.  In the event
such notice of non-extension is properly given, this Agreement shall terminate at
the end of the remaining Term then in effect.


 


25.2        Termination.  During the Term, the employment of the
Executive under this Agreement may be terminated only as follows:


 


25.2.1      By the Bank:


 


(a)           For
Cause, upon written notice to the Executive pursuant to Section 1.5.1;


 


(b)           Without
Cause at any time; or


 


(c)           Upon
expiration of the Disability Period.


 


25.2.2      By the Executive:


 


(a)           For Cause, upon written notice to the
Bank pursuant to Section 1.5.2; or


 


(b)           Without Cause or upon the Disability
of the Executive, provided that the Executive shall give the Bank sixty (60)
days’ prior written notice of her intent to terminate.


 


25.2.3      At any time upon mutual,
written agreement of the parties.


 


25.2.4      Upon expiration of the
Term.


 


25.2.5      Notwithstanding anything
in this Agreement to the contrary, the Term shall end automatically upon the
Executive’s death.


 


25.3        Severance.  If the Executive’s employment with the Bank
is terminated, other than within six (6) months following a Change of
Control, by either the Bank without Cause or by the Executive for Cause, then,
upon her Separation from Service, the Bank will pay severance to the Executive
in an amount equal to one (1) times her Base Salary at the rate then in
effect (the “Severance Amount”), with such amount payable over twelve (12)
months in substantially equal monthly
installments, the first of which will commence on the date determined by the
Bank, but in no event later than thirty (30) days following the date of her
Separation from Service.


 


25.4        Change of Control.


 


(a)           Payment.  If, within six (6) months following a
Change of Control, either the Bank terminates Executive’s employment without
Cause or the Executive resigns from the Bank for Cause, then, upon her
Separation from Service, the Executive, or in the event of her subsequent
death, her designated beneficiaries or her estate, as the case may be, will
receive the Severance Amount in the form of a lump-sum, cash payment with such
payment to be made to the Executive on the date determined by the Bank, but in
no event later than thirty (30) days following the date of her Separation from
Service.


 


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(b)           Code
Section 280G.  In no event shall
the Severance Amount exceed the amount permitted by Code Section 280G.  Therefore, if the aggregate present value
(determined as of the date of the Change of Control in accordance with the
provisions of Code Section 280G) of both the Severance Amount and all
other payments to the Executive in the nature of compensation which are
contingent on a change in ownership or effective control of the Bank or in the
ownership of a substantial portion of the assets of the Bank (the “Aggregate
Severance”) would result in a “parachute payment,” as defined under Code Section 280G,
then the Aggregate Severance shall not be greater than an amount equal to 2.99
multiplied by the Executive’s “base amount” for the “base period,” as those
terms are defined under Code Section 280G. 
In the event the Aggregate Severance is required to be reduced pursuant
to this Subsection, the last payments in time shall be reduced first.


 


25.5        Effect of Termination.  Upon termination of the Executive’s employment
hereunder for any reason, the Bank shall have no further obligation to the
Executive or the Executive’s estate with respect to this Agreement, except for
the payment of any Base Salary due and owing under Section 4.1 on the
effective date of termination and reimbursement under Section 4.4 of
expenses incurred as of the effective date of termination of employment and any
payments set forth in Section 3.3 or 3.4, if applicable.  Notwithstanding any other provision of this
Agreement to the contrary, as a condition of the Bank’s payment of any amount
in connection with a termination of the Executive’s employment, the Executive
must execute a release agreement in such form as is acceptable to the Bank
within such period of time following termination of employment as is permitted
by the Bank and not timely revoke the release agreement during any revocation period
provided pursuant to the terms of the release agreement.  Payment(s) of the Severance Amount, if
any, shall accrue from the date of the Executive’s Separation from Service and,
notwithstanding the timing provisions under Sections 3.3 and 3.4, shall be made
or commence at the end of the revocation period provided pursuant to the terms
of the release agreement but no later than the sixtieth (60th) day following the
Executive’s Separation from Service, with any accrued but unpaid severance
being paid on the date of the first payment. 
Notwithstanding any other provision in this Agreement to the contrary,
if the Executive is a “specified employee” within the meaning of Code Section 409A
at the date of her termination of employment, then such portion of the payments
provided for in this Section 3 that would result in a tax under Code Section 409A
if paid during the first six (6) months after termination of employment
shall be withheld, starting with the payments latest in time during such six (6) month
period, and paid to the Executive during the seventh month following the date
of her termination of employment.


 


25.6        Regulatory Action.


 


(a)           If
the Executive is removed and/or permanently prohibited from participating in
the conduct of the affairs of the Holding Company or the Bank by an order
issued under Section 8(e)(4) or 8(g)(1) of the Federal Deposit
Insurance Act (“FDIA”) (12 U.S.C. 1818(e)(4) and (g)(1)), all obligations
of the Bank under this Agreement shall terminate, as of the effective date of
such order, except for the payment of Base Salary due and owing under Section 4.1
on the effective date of said order, and reimbursement under Section 4.5
of expenses incurred as of the effective date of termination.


 


(b)           If
the Executive is suspended and/or temporarily prohibited from participating in
the conduct of the affairs of the Holding Company or the Bank by a notice
served under Section 8(e)(3) or 8(g)(1) of the FDIA (12 U.S.C.
1818(e)(3) and (g)(1)), all obligations of the Bank under this Agreement
shall be suspended as of the date of service, unless stayed by appropriate
proceedings.  If the charges in the
notice are dismissed, the Bank shall (i) pay the Executive all or part of
the compensation withheld while its contract obligations were suspended and (ii) reinstate
(in whole or in part) any of its obligations which were suspended.


 


(c)           If
the Bank is in default (as defined in Section 3(x)(1) of the FDIA),
all obligations under this Agreement shall terminate as of the date of default,
but the vested rights of the parties shall not be affected.


 


(d)           All
obligations under this Agreement shall be terminated, except to the extent a
determination is made that continuation of the contract is necessary for the
continued operation of the Bank (i) by the director of the Federal Deposit
Insurance Corporation (the “FDIC”) or his or her designee (the 


 


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“Director”), at the time the FDIC enters into an
agreement to provide assistance to or on behalf of the Bank under the authority
contained in 13(c) of the FDIA; or (ii) by the Director, at the time
the Director approves a supervisory merger to resolve problems related to
operation of the Bank when the Bank is determined by the Director to be in an
unsafe and unsound condition.  Any rights
of the Executive that have already vested, however, shall not be affected by
such action.


 


26.          Compensation.  The
Executive shall receive the following salary and benefits during the Term,
except as otherwise provided below:


 


26.1        Base Salary.  The Executive shall be compensated at an
annual base rate of $150,000 (the “Base Salary”).  The Executive’s Base Salary shall be reviewed
by the President and Chief Executive Officer of the Bank and the Board of
Directors of the Bank, or its designee(s), at least annually, and the Executive
shall be entitled to receive annually an increase in such amount, if any, as
may be determined by the President and Chief Executive Officer of the Bank and
the Board of Directors of the Bank, or its designee(s), based on his and its
evaluation of the Executive’s performance. 
Base Salary shall be payable in accordance with the Bank’s normal
payroll practices.


 


26.2        Stock Options.  The Executive shall be eligible to receive stock
options pursuant to the Atlantic Southern Financial Group, Inc. 2007 Stock
Incentive Plan (an amendment and restatement of the New Southern Bank 2001
Stock Incentive Plan) as determined in the discretion of the Board of Directors
of the Bank, or its designee(s).


 


26.3        Health Insurance.  The Bank shall pay for the Executive the cost
of premium payments for the Executive’s health insurance covering the
Executive.  The Executive shall be
responsible for all the costs associated of health insurance for any dependant
or spouse.


 


26.4        Business Expenses.  The Bank specifically agrees to reimburse the
Executive for reasonable and necessary business (including travel) expenses
incurred by her in the performance of her duties hereunder, as approved by the
President and Chief Executive Officer of the Bank; provided, however, that the
Executive shall, as a condition of any reimbursement, submit verification of
the nature and amount of such expenses in accordance with reimbursement
policies from time to time adopted by the Bank and in sufficient detail to
comply with rules and regulations promulgated by the Internal Revenue
Service.


 


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


 


26.6        Benefits.  In addition to the benefits specifically
described in this Agreement, the Executive shall be entitled to such benefits
as may be available from time to time to executives of the Bank similarly situated
to the Executive.  All such benefits
shall be awarded and administered in accordance with the Bank’s standard
policies and practices.  Such benefits
may include, by way of example only, 401(k), dental, health, life and
disability insurance benefits and such other benefits as the Bank deems
appropriate.


 


26.7        Reimbursements.  All expenses eligible for reimbursement under
this Section 4 must be incurred by the Executive during the Term of this
Agreement to be eligible for reimbursement. 
All reimbursements shall be paid as soon as administratively
practicable, but in no event shall any reimbursement be paid after the last day
of the taxable year following the taxable year in which the expense was
incurred, nor shall the amount of reimbursable expenses incurred in one taxable
year affect the expenses eligible for reimbursement in any other taxable year.


 


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


 


27.          Employer
Information.


 


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


 


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27.2        Obligations
of the Executive.  The Executive
agrees:


 


(a)           to
hold Employer Information in strictest confidence;


 


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


 


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


 


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


 


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


 


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


 


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


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


·                  by the Executive in
connection with a Change of Control pursuant to Section 3.4,


 


for a period of twelve (12) months thereafter, she
will not (except on behalf of or with the prior written consent of the Bank),
within the Area, either directly or indirectly, on her own behalf or in the
service or on behalf of others, as an executive employee or in any other
capacity, undertake for any Competing Business duties and responsibilities
similar to those undertaken by the Executive for the Bank.


 


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


 


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


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


·                  by the Bank or the
Executive in connection with a Change of Control pursuant to Section 3.4,


 


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


 


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


 


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


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


·                  by the Bank or the
Executive in connection with a Change of Control pursuant to Section 3.4,


 


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


 


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


·                  such employment is
pursuant to written agreement, or


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


 


31.          Remedies.  The
Executive agrees that the covenants contained in Sections 5 through 8 of this
Agreement are of the essence of this Agreement; that each of the covenants is
reasonable and necessary to protect the business, interests and properties of
the Bank, and that irreparable loss and damage will be suffered by the Bank
should she breach any of the covenants. 
Therefore, the Executive agrees and consents that, in addition to all
the remedies provided by law or in equity, the Bank shall be entitled to a
temporary restraining order and temporary and permanent injunctions to prevent
a breach or contemplated breach of any of the covenants.  The Bank and the Executive agree that all
remedies available to the Bank or the Executive, as applicable, shall be
cumulative.


 


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


 


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


 


34.          Notice.  All
notices and other communications required or permitted under this Agreement
shall be in writing and, shall be delivered by hand or, if mailed, shall be
sent via the United States Postal Service, certified mail, return receipt
requested, or by overnight courier.  All
notices hereunder may be delivered by hand or overnight courier, in which event
the notice shall be deemed effective when delivered. All notices and other
communications under this Agreement shall be given to the parties hereto at the
following addresses:


 


	
  (i)

  	
  If to the Bank, to it at:

  
	
   

  	
   

  
	
   

  	
  Atlantic Southern Bank

  
	
   

  	
  4077 Forsyth Street

  
	
   

  	
  Macon, Georgia 31210

  
	
   

  	
   

  
	
  (ii)

  	
  If to the Executive, to her at:

  
	
   

  	
   

  
	
   

  	
  Carol Soto

  
	
   

  	
  4653 S. Stratford Oaks Dr.

  
	
   

  	
  Macon, Georgia 31210-3115

  



 


Any party hereto may change her or its address by
advising the others, in writing, of such change of address.


 


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35.          Assignment.  This
Agreement is generally not assignable by the Bank except that the rights and
obligations of the Bank under this Agreement shall inure to the benefit of and
shall be binding upon the successors and assigns of the Bank.  The Agreement is a personal contract and the
rights and interests of the Executive may not be assigned by her.  This Agreement shall inure to the benefit of
and be enforceable by the Executive and her personal or legal representatives,
executors, administrators, successors, heirs, distributes, devisees and
legatees.


 


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


 


37.          Arbitration.  Except
for matters contemplated by Section 17 below, any controversy or claim
arising out of or relating to this contract, or the breach thereof, shall be
settled by binding arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association. 
Judgment upon the award rendered by the arbitrator may be entered only
in the State Court of Bibb County or the federal court for the Middle District
of Georgia.  The Bank and the Executive
agree to share equally the fees and expenses associated with the arbitration
proceedings.  Executive
must initial here:


 


38.          Attorneys’ Fees.  In the event that the parties have complied
with this Agreement with respect to arbitration of disputes and litigation
ensues between the parties concerning the enforcement of an arbitration award,
the party prevailing in such litigation shall be entitled to receive from the
other party all reasonable costs and expenses, including without limitation
attorneys’ fees, incurred by the prevailing party in connection with such
litigation, and the other party shall pay such costs and expenses to the
prevailing party within sixty (60) days after a final determination (excluding
any appeals) is made with respect to the litigation.


 


39.          Applicable Law and Choice of Forum.  This Agreement shall be construed and
enforced under and in accordance with the laws of the State of Georgia.  The parties agree
that any appropriate state court located in Bibb County, Georgia  or federal court for the Middle District of Georgia  shall have exclusive jurisdiction of any case or
controversy arising under or in connection with Sections 5 through 9 of this
Agreement and shall be a proper forum in which to adjudicate such case or
controversy.  The parties consent and
waive any objection to the jurisdiction or venue of such courts.


 


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


 


41.          Entire Agreement.  This Agreement embodies the entire and final
agreement of the parties on the subject matter stated herein and supersedes and
replaces the Prior Employment Agreement and any other prior agreement between
the parties.  No amendment or
modification of this Agreement shall be valid or binding upon the Bank or the
Executive unless made in writing and signed by both parties.


 


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


 


43.          Survival.  The
obligations of the Executive pursuant to Sections 5 through 9 shall survive the
termination of the employment of the Executive hereunder for the period
designated under each of those respective Sections.


 


44.          Representation Regarding Restrictive Covenants.  The Executive represents that she is not and
will not become a party to any noncompetition or nonsolicitation agreement or
any other agreement which would prohibit her from entering into this Agreement
or providing the services for the Bank contemplated by this Agreement on or
after the Effective Date.  In the event
the Executive is subject to any such agreement, this Agreement shall be
rendered null and void and the Bank shall have no obligations to the Executive
under this Agreement.


 


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


 


	
   

  	
  THE BANK:

  
	
   

  	
   

  
	
   

  	
  ATLANTIC SOUTHERN BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  CAROL SOTO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


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