EXHIBIT
10.1


 


EMPLOYMENT AGREEMENT


 


THIS
AGREEMENT is made as of the 27th day of December, 2007, by and between
FIRSTBANK FINANCIAL SERVICES, INC., a bank holding company incorporated under
the laws of the State of Georgia (the “Company”), FIRSTBANK FINANCIAL SERVICES,
a commercial bank organized under the laws of the State of Georgia (the “Bank”)
(collectively, the Company and the Bank are referred to herein as the “Employer”),
and THADDEUS M. WILLIAMS, a resident of the State of Georgia (the “Executive”).


 


RECITALS:


 


The Executive is currently employed as President and Chief Executive
Officer of the Company and the Bank pursuant to an employment agreement dated as of the
date first set forth above (the “Prior Employment Agreement”).  The parties desire to enter into this revised
employment agreement with the intent that it replace and entirely supersede the
Prior Employment Agreement.


 


This Agreement, in restating the Prior Employment Agreement, sets forth
the terms and conditions of the Executive’s continuing employment.


 


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


 


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


 


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


 


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


 


1.3          “Area” shall mean the
geographic area within the boundaries of Clayton, Henry and Newton Counties,
Georgia.  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 Employer under this Agreement.


 


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


 


1.5          “Cause” shall mean:


 


1.5.1        With respect to termination by the Employer:


 


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(a)           A material breach of
the terms of this Agreement by the Executive, including, without limitation,
failure by the Executive to perform his duties and responsibilities in the
manner and to the extent required under this Agreement, which remains uncured
after the expiration of thirty (30) days following the delivery of written
notice of such breach to the Executive by the Employer.  Such notice shall (i) specifically
identify the duties that the Board of Directors of the Company or the Bank
believes the Executive has failed to perform, and (ii) state the facts
upon which the Board of Directors made such determination;


 


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


 


(c)           Arrest for, charged in relation
to (by criminal information or otherwise), or conviction of the Executive during the Term of any 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
his duties and responsibilities hereunder; or


 


(e)           The receipt of any
form of notice, written or otherwise, that any regulatory agency having
jurisdiction over the Employer intends to institute any form of formal or
informal regulatory action against the Executive or the Employer, provided that
the Board of Directors of the Company or the Bank determines in good faith that
such action involves acts or omission by or under the supervision of the
Executive or that termination of the Executive could materially advance the
Employer’s compliance with the purpose of the action or would materially assist
the Employer in avoiding or reducing the restrictions or adverse effects to the
Employer related to the regulatory action.


 


1.5.2        With respect to termination by the Executive,


 


(a)           a material diminution in the authority, responsibilities
or duties of the Executive hereunder; or


 


(b)           a material breach of the terms of this Agreement by the
Employer, or


 


(c)           following a Change of Control,


 


(i)            a material reduction in the rate of the Executive’s Base
Salary in effect as of the effective date of the Change of Control; or


 


(ii)           a change in the Executive’s principal business office
location such that the Executive is required to report regularly to a location
which is located more than thirty (30) miles from the Employer’s principal
business office located in McDonough, Georgia.


 


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provided, however, that for a termination of employment by the
Executive to be for Cause, the Executive must notify the Employer in writing of
the event giving rise to Cause within thirty (30) days following the occurrence
of the event (or if later the Executive’s knowledge of 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 Employer by the
Executive, and the Executive must resign effective no later than sixty (60)
days following the Employer’s failure to cure the event.


 


1.6          “Change
of Control” means any one of the following events:


 


(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 of the stock of the Company or the Bank, as applicable, prior to
such acquisition), of stock of the Company or the Bank, as applicable, 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 Company or the Bank;


 


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


 


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


 


(d)           within any
twelve-month period (beginning on or after the Effective Date) the acquisition
by any one person, or more than one person acting as a group, of the assets of
the Employer 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 Employer 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
Company or the Bank, as applicable, immediately after the transfer;


 


(ii)           a shareholder (determined immediately before the asset
transfer) of the Company or the Bank, as applicable, 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 Company or
the Bank, as applicable;


 


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(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 Company or the Bank, as
applicable; or


 


(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).


 


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 Company or the Bank, as
applicable.  Notwithstanding the foregoing, no Change of Control shall be deemed to
have occurred for purposes of this Agreement by reason of any actions or events
in which the Executive participates in a capacity other than in the Executive’s
capacity as an employee.


 


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


 


1.8          “Competing Business” shall mean any
business engaged in the Business of the Employer.


 


1.9          “Confidential
Information” means data and information relating to the business of
the Employer (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 Employer and
which has value to the Employer 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 Employer (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.


 


1.10        “Disability” shall mean that the
Executive suffers from a physical or mental disability or infirmity which would
constitute a disability under an accident and health plan maintained by the
Bank or the Company that provides income replacement benefits or, if the Bank
or the Company does not maintain such a plan, the Executive’s inability to
perform the essential functions of the Executive’s job with or without
reasonable accommodation as a result of a physical or mental disability or
infirmity.


 


1.11        “Disability
Period” shall mean the period beginning on the date the Employer 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 Company or the date that is six (6) months
after such determination, during which the Executive remains subject to a
Disability


 


1.12        “Effective
Date” shall mean January 1, 2008.


 


1.13        “Employer
Information” means Confidential Information and Trade Secrets.


 


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


 


1.15        “Separation from Service” shall mean a termination of the
Executive’s employment that constitutes a separation from service under
Treasury Regulation Section 1.409A-1(h).


 


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


 


1.17        “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.


 


2.             Duties.


 


2.1          Position.  The Executive is employed as President and
Chief Executive Officer of the Company and of the Bank and, subject to the
direction of the Board of Directors of the Company or of the Bank or their
designee(s), shall perform and discharge well and faithfully the duties which
may be assigned to him from time to time by the Company or the Bank in
connection with the conduct of its business. 
The duties and responsibilities of the Executive are set forth on Exhibit A
attached hereto.


 


2.2          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 his time, energy and skill
during regular business hours to the performance of the duties of his
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 him by the Board of
Directors of the Company or of the Bank; and


 


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(c)           timely prepare and forward to the Board of Directors
of the Company and of the Bank all reports and accountings as may be requested
of the Executive.


 


2.3          Permitted
Activities. 
The Executive shall devote his business time, attention and energies to
the Business of the Employer 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 his personal assets in Competing Businesses
which (subject to clause (b) below) will not require any services on the
part of the Executive in their operation or affairs and in which his
participation is solely that of an investor;


 


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


 


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


 


3.             Term
and Termination.


 


3.1          Term.     This Agreement shall remain in
effect for the Initial Term.  At the end
of the Initial Term and at the end of each successive twelve-month extension
thereof, this Agreement shall automatically be extended for a successive
twelve-month period unless any party gives written notice to the others of its
or his intent not to extend this Agreement with such written notice to be given
not less than ninety (90) 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.


 


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


 


3.2.1        By the Employer:


 


(a)           For Cause, upon
written notice to the Executive following the expiration of the cure period
described in Section 1.5.1 hereof, or upon the expiration of the
Disability Period.


 


(b)           Without Cause at any
time, provided that the Employer shall give the Executive thirty (30) days’
prior written notice of its intent to terminate.


 


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3.2.2        By the Executive:


 


(a)           For Cause, upon
written notice to the Employer following the expiration of the cure period
described in Section 1.5.2 hereof.


 


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


 


3.2.3        At any time upon mutual, written agreement of the
parties, in which event the Employer shall have no further obligation to the
Executive except for payment of any amounts due and owing under Section 4
on the effective date of termination.


 


3.2.4        Upon expiration of the Term as provided in Section 3.1,
in which event the Employer shall have no further obligation to the Executive
except for payment of any amounts due and owing under Section 4 on the
last day of the Term then in effect.


 


3.2.5        Notwithstanding anything in this Agreement to the
contrary, the Term shall end automatically upon the Executive’s death, in which event the Employer shall have no
further obligation to the Executive except for payment of any amounts due and
owing under Section 4 on the effective date of termination.


 


3.3          Severance.  If the Executive experiences a Separation
from Service pursuant to Section 3.2.1(b) or 3.2.2(a), the Employer
shall be required to pay to the Executive the Executive’s Base Salary under Section 4.1
that would be payable for twenty-four (24) months following the effective date
of termination (the “Severance Period”), which amount shall be paid in
substantially equal monthly installments for the duration of the Severance
Period, commencing on the first day of the month following the month in which
the Executive’s employment is terminated.


 


3.4          Change of Control.  If, within
twelve (12) months following a Change of Control, the Executive terminates his
employment with the Employer under this Agreement for Cause or the Employer
terminates Executive’s employment without Cause and, in either case, such
termination of employment constitutes a Separation from Service, the Executive,
or in the event of his subsequent death, his designated beneficiaries or his
estate, as the case may be, shall receive, as liquidated damages, in lieu of
all other claims, a lump sum amount, paid in full on the last day of the month
following the date of termination, equal to three (3) times the Executive’s
annual Base Salary in effect on the date of termination of employment.


 


In no event shall
the payment described in Section 3.3 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 payment 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 Employer or in
the ownership of a substantial portion of the assets of the Employer (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 Executive’s “base amount” for the


 


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“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 Section 3.4, the last payments in
time shall be reduced first.


 


3.5          Effect
of Termination.


 


3.5.1        Upon termination of the Executive’s employment hereunder
for any reason, the Employer shall have no further obligation to the Executive
or the Executive’s estate with respect to this Agreement, except for the
payment of any amounts due and owing under Section 4 on the effective date
of termination and any payments set forth in Section 3.3 or 3.4, as
applicable.


 


3.5.2        Notwithstanding any other provision of this Agreement to
the contrary, as a condition of the payment by the Employer of any amount in
connection with a termination of the Executive’s employment pursuant to
Sections 3.3 or 3.4, the Executive must execute a release agreement in such
form as is acceptable to the Employer within such period of time following
termination of employment as is permitted by the Employer and not timely revoke
the release agreement during any revocation period provided pursuant to the
terms of the release agreement. All payments of severance under this Agreement
shall accrue from the date of 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.


 


3.5.4        Notwithstanding any
provision in the Agreement to the contrary, if the Executive is a “specified
employee” within the meaning of Code Section 409A at the date of his
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 his termination of employment.


 


3.5.5        Any termination of the Executive’s employment by the
Company or the Bank for Cause shall also be deemed a termination of the
Executive’s employment with the Bank or the Company, as applicable, for Cause
regardless of whether the Company or the Bank, as applicable, takes any
separate action with respect to the Executive’s termination of employment.


 


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


 


4.1          Base
Salary. 
The Executive shall be compensated at an annual base rate of  $200,000 per year (the “Base Salary”).  The Executive’s Base Salary shall be reviewed
by the Board of Directors of the Company and of the Bank, or their 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 based on an evaluation of
the Executive’s performance and a determination that, 


 


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according to reasonable safety and soundness
standards, any such increase in Base Salary shall not adversely affect the
overall financial condition of the Employer, including the Employer’s asset
quality.  Base Salary shall be payable in
accordance with the Employer’s normal payroll practices.


 


4.2          Incentive
Compensation.  The Executive shall
be entitled to annual bonus, if any, and additional bonus compensation, if any,
in an amount determined by the Board of Directors of the Bank, or its
designee(s), based upon performance goals established from time to time by the
Board of Directors of the Bank and relevant market conditions as exist at the
time of the Board of Directors’ determinations. 
In any event, bonus compensation will be paid in full no later than
sixty (60) days following the end of the performance period for which it is
payable.  Notwithstanding the foregoing,
no bonus compensation shall be paid to the Executive unless the Board of
Directors of either the Company or the Bank, or their designee(s), determine
that, according to reasonable safety and soundness standards, payment of such
bonus compensation will not adversely affect the overall financial condition of
the Employer, including the Employer’s asset quality.


 


4.3          Supplemental
Executive Retirement Plan.     The Executive shall be entitled
to participate in a deferred compensation program upon such terms and
conditions as are adopted by the Board of Directors of the Company or of the
Bank, or their designated committee(s).


 


4.4          Restricted
Stock Award.  The Company shall
grant up to three (3) restricted stock awards to the Executive during the
Initial Term, with each such award representing the opportunity to earn a
maximum number of shares of the Company’s common stock having a fair market
value, as reasonably determined by the Company, as of the date of grant equal
to Thirty Thousand Dollars ($30,000.00). 
Each such grant shall be made in January of each calendar year
during the Initial Term provided the Executive is still in the employ of
Company and the Bank pursuant to this Agreement as of the date of grant.  Each restricted stock award shall be subject
to the terms of a separate restricted stock award, the provisions of which
shall control in the event of any conflict with this Agreement.


 


4.5          Automobile.  The Employer will provide the Executive with
an automobile suitable and appropriate for the Executive’s position and use.


 


4.6          Health
Insurance.                The Employer shall reimburse the
Executive for the cost of health and dental insurance premium payments paid by
the Executive for the Executive’s current health and dental insurance covering
the Executive and the eligible members of his immediate family.


 


4.7          Business
Expenses; Memberships. 
The Employer specifically agrees to reimburse the Executive for:


 


(a)           reasonable and
necessary business (including travel) expenses incurred by him in the
performance of his duties hereunder, as approved by the Board of Directors of
the Company or of the Bank; and


 


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(b)           the reasonable dues
and business related expenditures associated with membership in professional
associations which are commensurate with his position and for the regular dues
for membership in the Eagle’s Landing Country Club;


 


provided, however, that the Executive shall, as a condition of
reimbursement, submit verification of the nature and amount of such expenses in
accordance with reimbursement policies from time to time adopted by the
Employer and in sufficient detail to comply with rules and regulations
promulgated by the Internal Revenue Service. 
The expenses described in this Section 4.7 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.


 


4.8          Vacation.  On a non-cumulative basis, the Executive
shall be entitled to five (5) weeks of vacation in each successive
twelve-month period during the Term, during which his compensation shall be
paid in full.  The Executive may be
reimbursed for up to two weeks of unused vacation each year and any amount
unused in excess of that amount shall be forfeited by the Executive.


 


4.9          Life
Insurance. 
The Employer will provide the Executive with term life insurance
coverage providing a death benefit of not less than $200,000.00, payable to
such beneficiary or beneficiaries as the Executive may designate.  If the term life insurance cannot be obtained
from the insurer with a standard or better risk classification, the Employer
shall not be obligated to provide such insurance coverage.


 


4.10        Disability.  In the event the Employer determines that the
Executive is subject to a condition that constitutes a Disability, the Employer
shall continue to pay the Executive his Base Salary then in effect pursuant to Section 4.1
for the duration of the Disability Period without regard to his continuing
ability to discharge his duties pursuant to Section 2.


 


4.11        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 Employer similarly
situated to the Executive.  All such
benefits shall be awarded and administered in accordance with the Employer’s
standard policies and practices.  Such
benefits may include, by way of example only, retirement, dental, health, life
and disability insurance benefits and such other benefits as the Employer deems
appropriate.


 


4.12        Withholding.  The Employer 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.


 


4.13        Apportionment
of Obligations. 
The obligations for the payment of the amounts otherwise payable
pursuant to this Section 4 shall be apportioned between the Company and
the Bank as they may agree from time to time in their sole discretion.


 


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5.             Employer
Information.


 


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


 


5.2          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 Employer 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, and shall
survive termination of this Agreement for any reason for so long as is
permitted by applicable law, with respect to Trade Secrets.


 


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


 


6.             Non-Competition.  The Executive agrees that during his
employment by the Employer hereunder and, in the event of his termination:


 


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


·      by the Employer without Cause
pursuant to Section 3.2.1(b);


·      by the Executive for Cause
pursuant to Section 3.2.2(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 six (6) months thereafter, he will not (except on
behalf of or with the prior written consent of the Employer), within the Area,
either directly or indirectly, on his own behalf or in the service of or on
behalf of others, as an executive officer of an existing financial institution
or a proposed executive officer of a new financial institution, undertake for
any Competing Business duties and responsibilities similar to those undertaken
by the Executive for the Employer.


 


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7.             Non-Solicitation
of Employees. 
The Executive agrees that during his employment by the Employer
hereunder and, in the event of his termination:


 


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


·      by the Employer without Cause
pursuant to Section 3.2.1(b);


·      by the Executive for Cause
pursuant to Section 3.2.2(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 six (6) months thereafter, he will not, within the
Area, on his own behalf or in the service of or on behalf of others, solicit,
recruit or hire away or attempt to solicit, recruit or hire away, any employee
of the Employer or its Affiliates to another person or entity providing
products or services that are competitive with the Business of the Employer,
whether or not:


 


·      such employee is a full-time
employee or a temporary employee of the Employer or its Affiliates,


·      such employment is pursuant to
written agreement, and


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


 


8.             Non-Solicitation
of Customers. 
The Executive agrees that during his employment by the Employer
hereunder and, in the event of his termination:


 


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


·      by the Employer without Cause
pursuant to Section 3.2.1(b);


·      by the Executive for Cause
pursuant to Section 3.2.2(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 six (6) months thereafter, he will not (except on
behalf of or with the prior written consent of the Employer), within the Area,
on his own behalf or in the service of or on behalf of others, solicit, divert
or appropriate or attempt to solicit, divert or appropriate, for any Competing
Business any of the Employer’s customers, including prospective customers
actively sought by the Employer, with whom the Executive has or had material
contact during the two (2) year period preceding his termination of
employment for the purpose of providing products or services that are
competitive with those provided by the Employer.


 


9.             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 Employer, and that irreparable
loss and damage will be suffered by the Employer should he 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 Employer 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.  Furthermore, in
addition to any other remedies, the Executive agrees that any violation of the
covenants in Sections 5 through 8 will result in the immediate forfeiture of
any remaining payment that otherwise is or may become due under Sections 3.3 or
3.4, if applicable.  The Executive further agrees that should


 


12

















 


he breach any of the covenants contained in Sections 5 through 8 of
this Agreement, he shall repay to the Employer a portion of any amounts
previously received by the Executive pursuant to Section 3.  The amount to be repaid shall be equal to the
aggregate amount payable (whether or not paid) multiplied by a fraction the
numerator of which shall be six (6) minus the number of consecutive, full
calendar months immediately following the Executive’s termination of employment
during which the Executive was not in breach of Sections 5 through 8 of this
Agreement and the denominator of which is six (6). The Employer and the Executive agree that all remedies available to the
Employer or the Executive, as applicable, shall be cumulative.


 


10.          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.


 


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


 


12.          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 Employer, to it at:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FirstBank Financial Services, Inc.

  
	
   

  	
   

  	
  120 Keys Ferry Street

  
	
   

  	
   

  	
  McDonough, GA 30253

  
	
   

  	
   

  	
  Attention: James T. Chafin, III

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
   

  	
  If to the Executive, to him at:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Thaddeus M. Williams

  
	
   

  	
   

  	
  2923 Chesterfield Way

  
	
   

  	
   

  	
  Conyers, Georgia 30013

  



 


 


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


 


13

















 


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


 


14.          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.


 


15.          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 Henry
County, Georgia, or the federal court for the Northern District of Georgia.  The Employer and the Executive agree to share
equally the fees and expenses associated with the arbitration proceedings.


 


Executive must initial here:          


 


16.          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.


 


17.          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 or federal court located in
Henry County, 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.


 


18.          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.


 


19.          Entire
Agreement. 
Except as expressly provided hererin, this Agreement embodies the entire
and final agreement of the parties on the subject matter stated in this
Agreement.  No amendment or modification
of this Agreement shall be valid or binding upon the Employer or the Executive
unless made in writing and signed by both parties.  All prior understandings and


 


14

















 


agreements relating to the subject matter of this
Agreement are hereby expressly terminated, including, but not limited to the
Prior Employment Agreement.


 


20.          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.


 


21.          Survival.  The obligations of the Executive pursuant to
Sections 5, 6, 7, 8 and 9 shall survive the termination of the employment of
the Executive hereunder for the period designated under each of those
respective Sections.


 


 


[Remainder of Page Intentionally Left Blank]


 


15

















 


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


 


 


	
   

  	
   

  	
  THE COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FIRSTBANK FINANCIAL SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE BANK:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FIRSTBANK FINANCIAL SERVICES

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE EXECUTIVE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THADDEUS M. WILLIAMS

  



 


16

















 


Exhibit A


Duties of the Executive


 


The duties of the Executive shall include, in addition to any other
duties assigned the Executive by the Board of Directors of the Bank or the
Company or their respective designee(s), the following:


 


·      Foster a corporate culture that
promotes ethical practices, encourages individual integrity, fulfills social
responsibility, and is conducive to attracting, retaining and motivating a
diverse group of top-quality employees at all levels.


 


·      Work with the Board of Directors
of the Company and the Bank to develop and oversee long-term strategies that
create shareholder value.


 


·      Manage the day-to-day business
affairs of the Bank appropriately.


 


·      Develop annual business plans and
budgets that support the Bank’s long-term strategies.


 


·      Use best efforts to achieve the
Bank’s financial and operating goals and objectives.


 


·      Use best efforts to improve the
quality and value of the products and services provided by the Bank.


 


·      Develop an effective management
team and an active plan for its development and succession, and make
recommendations to the Board of Directors regarding hiring, firing and
compensation.


 


·      Develop and implement major
corporate policies for the Bank.


 


·      Lead business
development initiatives and marketing efforts to ensure that the Bank maintains
a satisfactory competitive position within its industry.


 


·      Develop and maintain
community relations.


 


·      Maintain regulatory
relations in good standing.


 


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