Exhibit 10.7


 


AGREEMENT
CONCERNING SEVERANCE COMPENSATION AND

BENEFITS UPON A CHANGE OF CONTROL


 


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


 


W I T N E S S E T H:


 


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


 


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


 


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


 


WHEREAS,
the Employee and Company acknowledge that this Agreement and the benefits
described herein are valuable consideration.


 


NOW,
THEREFORE, in consideration of the mutual promises and
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:


 


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


 


2.                                       Term of Agreement.  This Agreement commenced as of the effective
date of this agreement and shall continue in force and effect for a period of
not less than eighteen (18) months after a separation of employment occurs.


 


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


 


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


 


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


 


(b)                                 As
used in this Agreement, the event described in Section 3(a) is a “Change
of Control Event.”


 


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


 


5.                                       Noninterference and Nondisclosure.


 


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


 


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


 


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


 


5.2.                              Agreement
Not to Use, Disclose or Compete.  As
an Employee for the Employer, Employee will be in frequent direct and indirect
contact with customers of the Employer and, in consideration for signing this
Agreement, Employee will be presented with, gain access to, and may participate
in the development of both Trade Secrets and Confidential Information.  The Employee recognizes and acknowledges that
the Trade Secrets and Confidential Information constitute


 


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valuable, special and
unique assets of the Employer and use or/and disclosure thereof contrary to the
terms of this Agreement would cause substantial loss of competitive advantage
and other serious injury to the Employer. 
The Employee further acknowledges that knowledge of Trade Secrets and
Confidential Information Employee is presented with, has access to and may
participate in developing with the Employer may be inevitably disclosed by
Employee if he obtains a position with a competitor that is similar or related
to the position Employee previously held with the Employer.  Under such circumstances it would be
extremely difficult for him not to disclose, rely on or use the Employer’s
Trade Secrets and Confidential Information, and Employee could not be depended
upon to voluntarily avoid this, thereby causing a threat of substantial and
irreparable harm to the Employer. 
Therefore, in order to protect the Trade Secret and Confidential
Information that Employee will be presented with, gain access to and
participate in the development of, Employee covenants and agrees to the
following restrictions:


 


(a)                Employee agrees
that Employee shall hold all Trade Secrets in strictest confidence, shall not use
or disclose such Trade Secrets at any time or for any purpose except in the
performance of Employee’s designated duties for the Employer, shall diligently
protect any and all Trade Secrets against loss by inadvertent or unauthorized
disclosure, use or misappropriation, and shall comply with all regulations
established by the Employer for the purpose of protecting such
information.  The foregoing provision
will not apply to information that ceases to be a Trade Secret, unless such
information has ceased to be a Trade Secret due to Employee’s breach or default
of this Agreement.


 


(b)              Employee agrees that
during Employee’s engagement with the Employer and thereafter, Employee shall
hold all Confidential Information in strictest confidence, shall not use or disclose
such Confidential Information except in the performance of Employee’s
designated duties for the Employer, shall diligently protect any and all
Confidential Information against loss by inadvertent or unauthorized
disclosure, use or misappropriation, and shall comply with regulations
established by the Employer for the purpose of protecting such information.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6.                                       Arbitration.  The parties agree, except as otherwise
provided herein, that any and all disputes that they have with one another
which arise out of the Employee’s employment or under the terms of this
Agreement shall be resolved through final and binding arbitration by a single
arbitrator, as specified herein.  This
shall include, without limitation, disputes relating to this Agreement, the
Employee’s employment by the Company or the termination thereof, claims for
breach of contract or breach of the covenant of good faith and fair dealing,
and any claims of discrimination or other claims under any federal, state or
local law or regulation now in existence or hereinafter enacted and as amended
from time to time concerning in any way the subject of the Employee’s
employment with the Company or its termination. 
The only claims not covered by this Section 6 are claims for
benefits under the workers’ compensation laws or claims for unemployment
insurance benefits, which will be resolved pursuant to those laws.  Binding arbitration will be conducted in
Atlanta, Georgia, in accordance with the applicable rules and regulations
of the American Arbitration Association for the resolution of commercial
disputes.


 


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The Employee and the
Company understand and agree that the arbitration shall be instead of any civil
litigation and that the arbitrator’s decision shall be final and binding to the
fullest extent permitted by law and enforceable by any court having
jurisdiction thereof.


 


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


 


8.                                       Successors and Assigns.  This Agreement shall bind and inure to the
benefit of the parties and their respective successors and permitted
assigns.  Upon prior notice to the
Employee, the Company may assign this Agreement to a wholly-owned subsidiary, “spin-off”
Company, or other entity affiliated with the Company, or to any Successor
Entity.  The Employee shall not assign
his rights or obligations hereunder to any person or entity without the prior
written consent of the Company.


 


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


 


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


 


If to
the Company:


 


William
Blanton/CEO


First
Century Bank


807
Dorsey Street


Gainesville,
GA 30501


 


If to the Employee:


 


Chris England


5506 Stone Trace


Gainesville, GA  30504


 


Either party may change
its address for notice purposes by prior written notice to the other party as
specified herein.


 


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


 


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


 


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


 


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


 


15.                                 Duplication.  If a benefit promised herein is otherwise
provided by the terms of a plan or policy sponsored by the Company on account
of the same event giving rise to the benefit under this Agreement, nothing
herein shall be construed to entitle the Employee to duplicate benefits; however,
if the terms of this Agreement provide for an enhanced benefit, the Employee
shall be entitled to the incremental benefit provided hereunder whether under
the plan or policy or by direct payments from the Company.


 


16.                                 Withholding.  All payments made hereunder shall be less
taxes and applicable withholdings.


 


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


 


IN WITNESS
WHEREOF, the parties have executed this Agreement the day and year first above
written.


 


	
  FIRST CENTURY BANK

  	
   

  	
  EMPLOYEE

  
	
   

  	
   

  	
   

  
	
  By:

  	
  William R. Blanton

  	
   

  	
  /s/
  Chris England

  
	
   

  	
  Chief
  Executive Officer

  	
   

  	
  Chris England

  



 


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