Exhibit 10.22


 


FIRST AMENDMENT TO


CHANGE IN CONTROL
AGREEMENT


 


This First Amendment to the Change in Control Agreement by and between
Citizens Bancshares Corporation, a bank holding company organized under the
laws of the State of Georgia (the “Company”), and Robert E. Nesbitt (the “Executive”)
is entered into on this        day of December,
2008 (the “Effective Date”).


 


W I T N E S S E T H


 


WHEREAS, the parties entered into that certain Change in Control
Agreement dated December 1, 2005 (the “Agreement”).


 


WHEREAS, the parties desire to amend the Agreement to comply with the
final regulations issued under Internal Revenue Code Section 409A.


 


NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree, effective as of the date first written above,
to amend the Agreement as follows:


 


1.                                       By
deleting Section 3(a) in its entirety and substituting therefor the
following


 


“(a)                            Amount of Severance
Benefits.  If, within three (3) months
before or  two (2) years following a Change
in Control, the Executive experiences a Termination of Employment due to either
(i) an involuntarily termination by the Company or one of its affiliates
without Cause or (ii) a resignation by the Executive for Good Reason (no
later than six (6) months after the occurrence of the most recent event
constituting Good Reason), the Company shall pay to the Executive an amount
equal to the sum of (1) one (1) times the Executive’s annual base
salary in effect at the time of the Termination of Employment plus (2) the
value of his accrued, but unused, vacation as determined as of the effective
date of his Termination of Employment (the ‘Lump Sum Benefit’).


 


In addition, to the extent permitted by the
applicable plan or program, the following employee benefits shall continue in
effect at the same level as in effect immediately prior to the Change in
Control for a period of twelve (12) months following the Termination of
Employment (the ‘Severance Period’):  (1) continuation
of memberships in the YMCA and Sam’s Club; and (2) continuation of prepaid
legal benefits.


 


Finally, during the Severance Period, the
Company shall pay to the Executive an amount equal to the Executive’s cost of
COBRA health continuation coverage for the Executive and his eligible
dependents for the Severance Period or, if less, the period during which the
Executive and his eligible dependents are entitled to COBRA health continuation
coverage.


 

















 


The Lump Sum Benefit and other benefits
described in this Section 3(a) shall be collectively referred to in
this Agreement as the ‘Severance Benefit.’


 


Notwithstanding anything to the contrary
herein, a termination of the Executive’s employment due to his death or
Disability will not be deemed to be an involuntary termination of employment by
the Company or one of its affiliates without Cause or a resignation by the
Executive for Good Reason.”


 


2.                                       By
deleting the last sentence of Section 3(b) in its entirety and
substituting therefor the following:


 


“In the event that any payment or benefit is required to be reduced
pursuant to this Section, the portions of amounts paid or benefits provided
latest in time will be reduced first and if portions of the amounts to be paid
or benefits to be provided at the same time must be reduced, noncash benefits
will be reduced before cash payments.”


 


3.                                       By
deleting Section 3(c) in its entirety and substituting therefor the
following


 


“(c)                            Payment
of Severance Benefit.  The portion of
the Severance Benefit consisting of the Lump Sum Benefit shall be paid to the
Executive in a lump sum payment within sixty (60) days following the Executive’s
Termination of Employment.  All portions
of the Severance Benefit consisting of reimbursements and in-kind benefits
described in Section 3(a) must be incurred by the Executive during
the Severance Period to be eligible for reimbursement.  The amount of reimbursable expenses incurred,
and the amount of in-kind benefits provided, in one taxable year shall not
affect the expenses eligible for reimbursement, or in-kind benefits provided,
in any other taxable year.  Each category
of reimbursement shall be paid as soon as administratively practicable, but in
no event shall any such reimbursement be paid after the last day of the
calendar year following the calendar year in which the expense was incurred.  Neither rights to reimbursement nor in-kind
benefits are subject to liquidation or exchanges for other benefits.


 


As a condition of the Company’s payment of
any portion of the Severance Benefit, the Executive must execute a release
agreement as provided in Section 16 below within such period of time
following the Termination of Employment as is permitted by the Company and not
timely revoke the release agreement during any revocation period provided
pursuant to the terms of the release agreement. All payments of the Severance
Benefit shall accrue from the date of the Termination of Employment and 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
Termination of Employment, with any accrued but unpaid severance being paid on
the date of the first payment.


 


Notwithstanding any provision in the
Agreement to the contrary, if the Executive is a ‘specified employee’ within the
meaning of Section 409A of the Code as of his Termination of Employment,
then such portions of the Severance Benefit that would result in a tax under
Code Section 409A if paid during the first six (6) months after
Termination 


 


2

















 


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 his Termination of Employment.


 


The Company shall be entitled to withhold appropriate employment and
income taxes, if required by applicable law, as and when the applicable
portions of the Severance Benefit become payable.”


 


4.                                       By
deleting the phrase “promptly upon demand by the prevailing party” in Section 12
and substituting therefor the phrase “within sixty (60) days after a final
determination (excluding any appeals) is made with respect to the litigation.”


 


5.                                       By
adding new Section 20, as follows:


 


“20.                           Survival of Obligations.  To the extent the Severance Benefit becomes
payable pursuant to Section 3 prior to the expiration of the Term (as
described in Section 2), the duties and obligations of the parties
contained in Sections 3, 4, 5, 6, 7, 10, 11, 12, 16 and 20 shall survive the
expiration or termination of this Agreement.”


 


Except as provided herein, the terms of the Agreement shall remain in
full force and effect.


 


IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed as of the date first above written.


 


	
   

  	
  Citizens Bancshares Corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Robert E. Nesbitt

  



 


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