Exhibit 10.13


 


SUPPLEMENTAL
EXECUTIVE


RETIREMENT AGREEMENT


 


 


This Supplemental
Executive Retirement Agreement (this “Agreement”) is made as of the 30th day of March,
2010, by and between Atlantic Southern Bank, a bank chartered under the laws of
the State of Georgia (the “Employer”), and Ed Loomis, a resident of the State
of Georgia (“Executive”).


 


R  E  C  I  T  A
L  S:


 


WHEREAS,
the Employer desires to provide Executive with an incentive to accept
employment with, and to continue in the employ of, the Employer;


 


WHEREAS,
to that end, Employer desires to make available to Executive the supplemental
retirement benefit opportunity set forth in this Agreement; and


 


WHEREAS,
the Executive desires to accept the arrangement described herein.


 


NOW,
THEREFORE, the parties hereto, for and in consideration of the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, intending to be legally bound
hereby, do agree as follows:


 


1.             Supplemental Retirement
Benefit Obligation.  Employer hereby
establishes an unfunded retirement arrangement, the obligations under which
shall be reflected on the general ledger of the Employer (the “Retirement
Account”).  The Retirement Account shall
be an unsecured liability of the Employer to Executive, payable only as
provided herein from the general funds of the Employer.  The Retirement Account is not a deposit or
insured by the Federal Deposit Insurance Corporation and does not constitute a
trust account or any other special obligation of the Employer and does not have
priority of payment over any other general obligations of the Employer.


 


2.             Payment of Benefits.


 


(a)           Normal Retirement.  If Executive remains in the continual
employment of the Employer (except for approved leaves of absence) until
attaining at least age sixty-five (65) (the “Normal Retirement Age”), then upon
the date on which Executive’s employment with the Employer terminates for any
reason (the “Retirement Date”), the Employer shall pay to Executive the Normal
Retirement Benefit (as hereinafter defined) for fifteen (15) years, payable in
monthly installments beginning on the first business day of the first calendar
month falling on or after the Retirement Date. 
For the purposes of this Agreement, the monthly amount of the “Normal
Retirement Benefit” shall be Nine Thousand One Hundred and Sixty-Seven Dollars
($9,167.00).


 

















 


(b)           Termination Prior to
Normal Retirement Age.  If the
Employer involuntarily discharges Executive other than for Cause (as
hereinafter defined) prior to Normal Retirement Age or the Executive resigns
prior to Normal Retirement Age, the Employer shall pay to Executive an amount
equal to the Accrual Balance (as shown on Exhibit A attached hereto) for
the calendar month immediately preceding the calendar month in which the
involuntary discharge or resignation occurs. 
The Accrual Balance amount shall be payable monthly over a twenty-four
(24) month period, beginning on the first business day of the first calendar
month falling on or after Executive’s involuntary termination or resignation,
as the case may be.  For purposes of this
Agreement, the term “Cause” shall have the same meaning given to the same term
in the Employment Agreement between the parties as may be in effect from time
to time; provided, however, if any such Employment Agreement ceases to exist,
then the term shall have the same meaning given the same term the last time
such term was used in any such Employment Agreement.


 


(c)           Disability.  If Executive becomes Permanently Disabled (as
hereinafter defined) before Executive’s Normal Retirement Age and Executive is
involuntarily discharged or resigns thereafter, Executive shall be treated as
though Executive had been involuntarily discharged as of the effective date of
such termination or resignation.  The
amount and timing of benefit payments shall be determined in the same manner as
provided in Section 2(b) above. 
For purposes of this Section 2(c), the term “Permanently Disabled”
shall mean by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months that results in
Executive (i) being unable to engage in any substantial gainful activity;
or (ii) receiving income replacement benefits for a period of not less
than three (3) months under the Employer’s long-term disability plan
covering Executive.  The determination of
whether Executive is Permanently Disabled shall be made by the Employer.


 


(d)           Death.  If Executive dies while in the employ of the
Employer but before any benefit payments are scheduled to commence under any
other provision of this Agreement, the Executive shall be treated as though
Executive had been involuntarily discharged as of the date of death.  The amount and timing of benefit payments to
the Executive’s beneficiary shall be determined in the same manner as provided
in Section 2(b) above.   If
Executive dies after any benefit payments are scheduled to commence under any
other provision of this Agreement, the beneficiary of Executive shall receive
the amounts that otherwise would have been paid to Executive.  For purposes of this Agreement, Executive
shall designate his beneficiary in writing to the Employer pursuant to
procedures as may be established from time to time; provided, however, if no
such designation has been made or if the beneficiary predeceases Executive, the
beneficiary of Executive under this Agreement shall be Executive’s spouse, if
any, then, if there is no surviving spouse, the beneficiary shall be Executive’s
estate.


 


(e)           Forfeiture of Benefits.  If the Executive experiences a termination of
employment with the Employer prior to Normal Retirement Age for any reason,
other 


 


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than the
events described in Subsections (b), (c) and (d) above, no benefits
shall be paid under this Agreement.


 


(f)            Temporary
Suspension Applicable to a Specified Employee.  Notwithstanding the
foregoing provisions of this Section 2, if Executive is a “specified
employee,” within the meaning of Section 409A of the Internal Revenue Code
and the regulations thereunder (the “Code”), as of the date of Executive’s
termination of employment with the Employer other than by reason of death,
payment of benefit amounts otherwise due shall be delayed to the extent
necessary until the later of six (6) months after termination of
employment or the date the payments would otherwise be made under Section 2(a),
(b) or (c), as applicable.  Any
payments that are so delayed shall be paid in one lump sum in cash in the
seventh month following the termination of employment.


 


(g)           Separation
from Service.  For
purposes of this Section 2, the terms “terminates,” “discharged,” “resigns,”
and similar terminology all refer to the Executive’s separation from service
with the Employer as contemplated under Section 409A(a)(2)(A)(i) of
the Code.


 


3.             Amendment; Termination.  This Agreement may be
amended only by a written agreement signed by the Employer and the
Executive.  The Employer may unilaterally
amend the Agreement to conform with written directives to the Employer to
comply with legislative changes or tax law, including, without limitation, Section 409A
of the Code and any and all Treasury regulations and guidance promulgated
thereunder.  No amendment shall provide
for or otherwise permit any acceleration of the time or schedule of any payment
under the Agreement in a manner that would be prohibited under Section 409A(a)(3) of
the Code.  No waiver of any
provision contained in this Agreement shall be effective unless it is in
writing and signed by the party against whom such waiver is asserted.  The Employer may, at any time, terminate the
Agreement except that no Agreement termination may reduce the Executive’s
earned benefit.  Except as provided in
this Section 3, the termination of the Agreement shall not cause a
distribution of benefits.  Rather, after
such termination, benefit distributions will be made in accordance with Section 2.  Notwithstanding the preceding provisions of
this Section 3, the Employer may elect to terminate the Agreement under
any circumstances permitted by Treasury Regulations Section 1.409A-3(j)(4)(ix).  In any such event, the Employer shall
distribute the Executive’s benefits, determined as of the date of the
termination of the Agreement, to the Executive in a lump sum at the earliest
date permitted under such Treasury guidance.


 


4.             ERISA Provisions.


 


(a)           Plan Administrator Duties.  This Agreement shall be administered by the Board
of Directors of the Employer (“Board of Directors”), or such committee or
person(s) as the Board of Directors shall appoint.  The Board of Directors, in its capacity as
the “administrator” of the Agreement for purposes of the Employee Retirement Security
Act of 1974, as amended (“ERISA”), shall have the discretion
and authority to (i) make, amend, interpret and enforce all appropriate rules and
regulations for the 


 


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administration
of this Agreement and (ii) decide or resolve any and all questions
including interpretations of this Agreement, as may arise in connection with
the Agreement. The decision or action of
the Board of Directors (or its delegatee) with respect to any question arising
out of or in connection with the administration, interpretation and application
of the Agreement and the rules and regulations promulgated hereunder shall
be final and conclusive and binding upon all persons having any interest in the
Agreement.  The “Named Fiduciary” under
the Agreement is the Employer.


 


(b)           Claims Procedures.


 


(i)            Notice of Denial.  If Executive or a beneficiary (a “claimant”)
is denied a claim for benefits under this Agreement, the Claims Administrator
shall provide to the claimant written notice of the denial within ninety (90)
days (forty-five (45) days with respect to a denial of any claim for benefits
due to Executive being Permanently Disabled) after the Claims Administrator
receives the claim, unless special circumstances require an extension of time
for processing the claim.  If such an
extension of time is required, written notice of the extension shall be
furnished to the claimant prior to the termination of the initial 90-day
period.  In no event shall the extension
exceed a period of ninety (90) days (thirty (30) days with respect to a claim
for benefits due to Executive being Permanently Disabled) from the end of such
initial period.  With respect to a claim
for benefits due to Executive being Permanently Disabled, an additional
extension of up to thirty (30) days beyond the initial 30-day extension period
may be required for processing the claim. 
In such event, written notice of the extension shall be furnished to the
claimant within the initial 30-day extension period.  Any extension notice shall indicate the
special circumstances requiring the extension of time, the date by which the
Claims Administrator expects to render the final decision, the standards on
which entitlement to benefits are based, the unresolved issues that prevent a
decision on the claim and the additional information needed to resolve those
issues.


 


(ii)           Contents of Notice of Denial.  If a claimant is denied a claim for benefits
under this Agreement, the Claims Administrator shall provide to such claimant
written notice of the denial which shall set forth:


 


(1)           the specific reasons for the denial;


 


(2)           specific references to the
pertinent provisions of this Agreement on which the denial is based;


 


(3)           a description of any
additional material or information necessary for the claimant to perfect the
claim and an explanation of why such material or information is necessary;


 


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(4)           an explanation of this
Agreement’s claim review procedures, and the time limits applicable to such
procedures, including a statement of the claimant’s right to bring a civil
action under Section 502(a) of ERISA following an adverse benefit
determination on review;


 


(5)           in the case of a claim for benefits due to Executive
being Permanently Disabled, if an internal rule, guideline, protocol or other
similar criterion is relied upon in making the adverse determination, either
the specific rule, guideline, protocol or other similar criterion; or a
statement that such rule, guideline, protocol or other similar criterion was
relied upon in making the decision and that a copy of such rule, guideline,
protocol or other similar criterion will be provided free of charge upon
request; and


 


(6)           in the case of a claim for benefits due to Executive
being Permanently Disabled, if a denial of the claim is based on a medical
necessity or experimental treatment or similar exclusion or limit, an
explanation of the scientific or clinical judgment for the denial, an
explanation applying the terms of this Agreement to the claimant’s medical
circumstances or a statement that such explanation will be provided free of
charge upon request.


 


(iii)          Right to Review.  After receiving written notice of the denial
of a claim, a claimant or his representative shall be entitled to:


 


(1)           request a full and fair
review of the denial of the claim by written application to the Claims
Administrator (or Appeals Fiduciary in the case of a claim for benefits payable
due to Executive being Permanently Disabled);


 


(2)           request, free of charge,
reasonable access to, and copies of, all documents, records, and other
information relevant to the claim;


 


(3)           submit written comments,
documents, records, and other information relating to the denied claim to the
Claims Administrator or Appeals Fiduciary, as applicable; and


 


(4)           a review that takes into
account all comments, documents, records, and other information submitted by
the claimant relating to the claim, without regard to whether such information
was submitted or considered in the initial benefit determination.


 


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(iv)          Application for Review.


 


(1)           If a claimant wishes a
review of the decision denying his claim to benefits under this Agreement,
other than a claim described in paragraph (2) of this Section 4(b)(iv),
he must submit the written application to the Claims Administrator within sixty
(60) days after receiving written notice of the denial.


 


(2)           If the claimant wishes a
review of the decision denying his claim to benefits under this Agreement due
to Executive being Permanently Disabled, he must submit the written application
to the Appeals Fiduciary within one hundred eighty (180) days after receiving
written notice of the denial.  With
respect to any such claim, in deciding an appeal of any denial based in whole
or in part on a medical judgment (including determinations with regard to
whether a particular treatment, drug, or other item is experimental,
investigational, or not medically necessary or appropriate), the Appeals
Fiduciary shall


 


(A)          consult with a health care professional who has
appropriate training and experience in the field of medicine involved in the
medical judgment; and


 


(B)           identify the medical and vocational experts whose
advice was obtained on behalf of this Agreement in connection with the denial
without regard to whether the advice was relied upon in making the
determination to deny the claim.


 


Notwithstanding
the foregoing, the health care professional consulted pursuant to this Section 4(b)(iv) shall
be an individual who was not consulted with respect to the initial denial of
the claim that is the subject of the appeal or a subordinate of such
individual.


 


(v)           Hearing.  Upon receiving such written application for
review, the Claims Administrator or Appeals Fiduciary, as applicable, may
schedule a hearing for purposes of reviewing the claimant’s claim, which
hearing shall take place not more than thirty (30) days from the date on which
the Claims Administrator or Appeals Fiduciary received such written application
for review.


 


(vi)          Notice of Hearing.  At least ten (10) days prior to the
scheduled hearing, the claimant and his representative designated in writing by
him, if any, shall receive written notice of the date, time, and place of such
scheduled hearing.  The claimant or his representative, if any, may
request that the hearing be rescheduled, for his convenience, on another
reasonable date or at another reasonable time or place.


 


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(vii)         Counsel.  All claimants requesting a review of the
decision denying their claim for benefits may employ counsel for purposes of
the hearing.


 


(vii)         Decision on Review.  No later than sixty (60) days (forty-five
(45) days with respect to a claim for benefits due to Executive being
Permanently Disabled) following the receipt of the written application for
review, the Claims Administrator or the Appeals Fiduciary, as applicable, shall
submit its decision on the review in writing to the claimant involved and to
his representative, if any, unless the Claims Administrator or Appeals
Fiduciary determines that special circumstances (such as the need to hold a
hearing) require an extension of time, to a day no later than one hundred
twenty (120) days (ninety (90) days with respect to a claim for benefits due to
Executive being Permanently Disabled) after the date of receipt of the written
application for review.  If the Claims
Administrator or Appeals Fiduciary determines that the extension of time is
required, the Claims Administrator or Appeals Fiduciary shall furnish to the
claimant written notice of the extension before the expiration of the initial
sixty (60) day (forty-five (45) days with respect to a claim for benefits due
to Executive being Permanently Disabled) period.  The extension notice shall indicate the
special circumstances requiring an extension of time and the date by which the
Claims Administrator or Appeals Fiduciary expects to render its decision on
review.  In the case of a decision
adverse to the claimant, the Claims Administrator or Appeals Fiduciary shall
provide to the claimant written notice of the denial which shall include:


 


(1)           the specific reasons for the
decision;


 


(2)           specific references to the
pertinent provisions of this Agreement on which the decision is based;


 


(3)           a statement that the
claimant is entitled to receive, upon request and free of charge, reasonable
access to, and copies of, all documents, records, and other information
relevant to the claimant’s claim for benefits;


 


(4)           an explanation of this
Agreement’s claim review procedures, and the time limits applicable to such
procedures, including a statement of the claimant’s right to bring an action
under Section 502(a) of ERISA following the denial of the claim upon
review;


 


(5)           in the case of a claim for
benefits due to Executive being Permanently Disabled, if  an internal rule, guideline, protocol or
other similar criterion is relied upon in making the adverse determination,
either the specific rule, guideline, protocol or other similar criterion; or a
statement that such rule, guideline, protocol or other similar criterion was
relied upon in making the decision and that a copy of such rule, guideline, 


 


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protocol or other similar criterion will be provided
free of charge upon request;


 


(6)           in the case of a claim for
benefits due to Executive being Permanently Disabled, if a denial of the claim
is based on a medical necessity or experimental treatment or similar exclusion
or limit, an explanation of the scientific or clinical judgment for the denial,
an explanation applying the terms of this Agreement to the claimant’s medical
circumstances or a statement that such explanation will be provided free of
charge upon request; and


 


(7)           in the case of a claim for
benefits due to Executive being Permanently Disabled, a statement regarding the
availability of other voluntary alternative dispute resolution options.


 


The
Claims Administrator has the discretionary authority to determine all
interpretative issues arising under this Agreement and the interpretations of
the Claims Administrator shall be final and binding upon Executive or any other
party claiming benefits under this Agreement. 
For claims procedure purposes, the “Claims Administrator” shall be the
Board of Directors or such other person designated by the Board of Directors
from time to time and named by notice to Executive.  For claims procedure purposes, the “Appeals
Fiduciary” means an individual or group of individuals appointed by the Claims
Administrator to review appeals of claims for benefits payable due to Executive’s
Permanent Disability made pursuant to this Subsection (b).


 


5.             Funding by Employer.


 


(a)           The general corporate
funds of the Employer shall be the sole source of payment of benefits under
this Agreement.  The Employer shall be under no obligation
to set aside, earmark or otherwise segregate any funds with which to pay its
obligations under this Agreement. 
Executive and Executive’s beneficiary or any successor in interest shall
be and remain unsecured general creditors of the Employer with respect to the
Employer’s obligations hereunder. 
Executive shall have no interest in any property of the Employer or any
other rights with respect thereto except to the extent of the contractual right
to the payments provided for in Section 2 of this Agreement.


 


(b)           Notwithstanding anything
herein to the contrary, the Employer has no obligation whatsoever to set aside
assets, either directly or indirectly, in a trust for purposes of paying
benefits under this Agreement.  If the
Employer determines in its sole discretion to set aside assets in a trust for
the purpose of paying benefits under this Agreement, the trust shall not be
located outside of the United States or subsequently transferred to a trust
outside of the United States.


 


6.             Effect of Change of Control.  Upon the occurrence of a Change of Control
(as hereinafter defined) prior to the date any benefits under this Agreement
are scheduled to


 


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commence,
Executive shall become fully vested in the Normal Retirement Benefit.  The full annual amount of the Normal
Retirement Benefit shall be paid to Executive (or Executive’s beneficiary) in
accordance with the timing provisions of the otherwise applicable provision of Section 2
based upon the occurrence of the Executive’s termination of employment with the
Employer.  For purposes of this Section 6,
the term “Change of Control”  means  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
voting power of Atlantic Southern Financial Group, Inc. or the Employer
prior to such acquisition) of stock of Atlantic Southern Financial Group, Inc.
or the Employer that, together with stock held by such person or group,
constitutes more than fifty percent (50%) of the total voting power of the
stock of Atlantic Southern Financial Group, Inc. or the Employer (as applicable).  Notwithstanding the foregoing, no Change of
Control shall be deemed to have occurred for purposes of this Section 6 by
reason of a merger, consolidation, reorganization or other transaction as to
which the holders of the capital stock of Atlantic Southern Financial Group, Inc.
before the transaction continue after the transaction to hold, directly or
indirectly through a holding company or otherwise, shares of capital stock of
Atlantic Southern Financial Group, Inc. (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 Atlantic Southern Financial Group, Inc.
(or other surviving company).  For
purposes of this Section 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 Atlantic Southern Financial Group, Inc.


 


7.             Employment of Executive;
Other Agreements.  The benefits provided
for herein for Executive are supplemental retirement benefits and shall not be
deemed to modify, affect or limit any salary or salary increases, bonuses,
profit sharing or any other type of compensation of Executive in any manner whatsoever.  No provision contained in this Agreement
shall in any way affect, restrict or limit any existing employment agreement
between the Employer and Executive, nor shall any provision or condition
contained in this Agreement create specific employment rights of Executive or
limit the right of the Employer to discharge Executive with or without cause.


 


8.             Leave of Absence.  The Employer may, in its sole discretion,
permit Executive to take a leave of absence for a period not to exceed six (6) months.  Any such leave of absence must be approved by
the Board of Directors of Employer and reflected in its minutes.  During this time, Executive will still be
considered to be in the employ of the Employer for purposes of this Agreement.


 


9.             Withholding.


 


(a)           The Executive is responsible for payment of all
taxes applicable to compensation and benefits paid or provided to the Executive
under the Agreement, including federal and state income tax withholding, except
the Employer shall withhold any taxes that, in its reasonable judgment, are
required to be withheld, including but not limited to taxes owed under Section 409A
of the Code and regulations thereunder and all employment taxes due to be paid
by the Employer pursuant to Section 3121(v) of the 


 


9

















 


Code
and regulations promulgated thereunder (i.e., Federal Insurance Contributions Act (“FICA”)
taxes on the present value of payments hereunder which are no longer subject to
vesting).  The Employer’s sole liability
regarding taxes is to forward any amounts withheld to the appropriate taxing
authority(ies).  By participating in the
Agreement, the Executive consents to the deduction of all tax withholdings
attributable to participation in the Agreement from the benefits due under the
Agreement or other payments due to the Executive by the Employer to satisfy the
employee-portion of such obligations.  If
insufficient cash wages are available or if the Executive so desires, the Executive
may remit payment in cash for the withholding amounts.


 


(b)           Notwithstanding any other provision in the Agreement to the contrary,
payments due under the Agreement may be accelerated to pay, where applicable,
the FICA tax imposed under Sections 3101, 3121(a), and 3121(v)(2) of the
Code and any state, local, and foreign tax obligations (the “Tax Obligations”)
that may be imposed on amounts deferred pursuant to the Agreement prior to the
time such amounts are paid or made available and to pay the income tax at
source on wages imposed under Section 3401 of the Code or the
corresponding withholding provisions of applicable state, local, or foreign tax
laws as a result of an accelerated payment of the Tax Obligations (the “Income
Tax Obligations”).  Accelerated payments
pursuant to this Section 9(b) shall not exceed the amount of the Tax
Obligations and Income Tax Obligations and shall be made as a payment directly
to taxing authorities pursuant to the applicable withholding provisions.  Any accelerated payments pursuant to this Section 9(b) shall
reduce the benefit otherwise payable to the Executive pursuant to the
Agreement.


 


10.           Arbitration; Jury Trial
Waiver.


 


(a)           Except as otherwise
expressly provided herein or in any other subsequent written agreement between
Executive and the Employer, any controversy or claim between Executive and the
Employer, or between the respective successors or assigns of either, or between
Executive and any of the Employer’s officers, employees, agents or affiliated
entities, arising out of or relating to this Agreement or any representations,
negotiations, or discussions leading up to this Agreement or any relationship
that results from any of the foregoing, whether based on contract, an alleged
tort, breach of warranty, or other legal theory (including claims of fraud,
misrepresentation, suppression of material fact, fraud in the inducement, and
breach of fiduciary obligation), and whether based on acts or omissions
occurring or existing prior to, at the time of, or after the execution of this
Agreement and whether asserted as an original or amended claim, counterclaim,
cross-claim, or otherwise, shall be settled by binding arbitration pursuant to
the Federal Arbitration Act (“FAA”), 9 U.S.C. Section 1, et seq.; provided, however, that resort to arbitration as
provided in this Section 10 may only be had after exhaustion of the claims
procedure described in Subsection 4(b). 
The arbitration shall be administered by the American Arbitration
Association under its Commercial Arbitration Rules (the “Rules”), and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof.  Any dispute
regarding whether a particular claim is 


 


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subject
to arbitration will be decided by the arbitrator.  Any court of competent jurisdiction may
compel arbitration of claims pursuant to this Agreement.


 


(b)           The arbitrator may award
to the prevailing party pre-and post-award expenses of the arbitration,
including the arbitrator’s fees and travel expenses, administrative fees,
out-of-pocket expenses such as copying and telephone, court costs, witness
fees, stenographer’s fees, and (if allowed by applicable law) attorneys’
fees.  Otherwise, the parties will share
equally the arbitrator’s fee and travel expenses and administrative fees, and
each party will bear its own expenses.


 


(c)           This agreement to
arbitrate disputes will survive the payment of all obligations under this
Agreement and termination or performance of any transactions contemplated
hereby between Executive and the Employer, and will continue in full force and
effect unless Executive and the Employer otherwise expressly agrees in
writing.  Executive and the Employer
acknowledge that the transaction contemplated by this Agreement involves “commerce,”
as that term is defined in the FAA.


 


(d)           By entering into this
Agreement, Executive and the Employer agree and acknowledge that:


 


(i)            by agreeing to arbitrate
disputes, Executive and the Employer are giving up the right to trial in a
court and THE RIGHT TO TRIAL BY JURY of all claims that are subject to
arbitration under this Agreement;


 


(ii)           grounds for appeal of the
arbitrator’s decision are very limited; and


 


(iii)          in some cases the
arbitrator may be employed by, or may have worked closely with, a business in
the same or a related type of business as the business engaged in by Executive
or the Employer.


 


(e)           EXECUTIVE AND THE
EMPLOYER HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ALL DISPUTES, CONTROVERSIES
AND CLAIMS BY, BETWEEN OR AGAINST EXECUTIVE OR THE EMPLOYER, WHETHER THE
DISPUTE, CONTROVERSY OR CLAIM IS SUBMITTED TO ARBITRATION OR IS DECIDED BY A
COURT.


 


Executive must initial here:        .


 


11.           Miscellaneous Provisions.


 


(a)           Counterparts.  This Agreement may be executed simultaneously
in any number of counterparts.  Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument. 
This Agreement may be executed and delivered by facsimile transmission
of an executed counterpart.


 


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(b)           Construction.  As used in this Agreement, the neuter gender
shall include the masculine and the feminine, the masculine and feminine
genders shall be interchangeable among themselves and each with the neuter, the
singular numbers shall include the plural, and the plural the singular.  The term “person” shall include all persons
and entities of every nature whatsoever, including, but not limited to,
individuals, corporations, partnerships, governmental entities and
associations.  The terms “including,” “included,”
“such as” and terms of similar import shall not imply the exclusion of other
items not specifically enumerated.


 


(c)           Severability.  If any provision of this Agreement or the
application thereof to any person or circumstance shall be held to be invalid,
illegal, unenforceable or inconsistent with any present or future law, ruling, rule or
regulation of any court, governmental or regulatory authority having
jurisdiction over the subject matter of this Agreement, such provision shall be
rescinded or modified in accordance with such law, ruling, rule or
regulation and the remainder of this Agreement or the application of such
provision to the person or circumstances other than those as to which it is
held inconsistent shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.


 


(d)           Governing Law.  This Agreement is made in the State of
Georgia and shall be governed in all respects and construed in accordance with
the laws of the State of Georgia, without regard to its conflicts of law
principles, except to the extent superseded by the Federal laws of the United
States.


 


(e)           Binding Effect.  This Agreement is binding upon the parties,
their respective successors, assigns, heirs and legal representatives.  Without limiting the foregoing this Agreement
shall be binding upon any successor of the Employer whether by merger or
acquisition of all or substantially all of the assets or liabilities of the
Employer.  This Agreement may not be
assigned by any party without the prior written consent of each other party
hereto.


 


(f)            No Trust.  Nothing contained in this Agreement and no
action taken pursuant to the provisions of this Agreement shall create or be
construed to create a trust of any kind, or a fiduciary relationship between
the Employer and Executive, Executive’s designated beneficiary or any other
person.


 


(g)           Assignment of Rights and Benefits. 
No right or benefit provided in this Agreement will be transferable by
Executive except, upon his death, to a named beneficiary as provided in this
Agreement.  No right or benefit provided
for in the Agreement will be subject to anticipation, alienation, sale,
assignment, pledge, encumbrance or charge, and any attempt to anticipate,
alienate, sell, assign, pledge, encumber, or charge the same will be void.  No right or benefit provided for in the
Agreement will in any manner be liable for or subject to any debts, contracts,
liabilities or torts of the person entitled to such benefits; provided, however, that
the undistributed 


 


12

















 


portion
of any benefit payable hereunder shall at all times be subject to set-off for
debts owed by Executive to the Employer.


 


(h)           Entire Agreement.  This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and all
prior or contemporaneous negotiations, agreements and understandings, whether
oral or written, are hereby superseded, merged and integrated into this
Agreement.


 


(i)            Notices.  All notices and other
communications required or permitted under this Agreement shall be in writing
and, if mailed by prepaid first-class mail or certified mail, return receipt
requested, shall be deemed to have been received on the earlier of the date
shown on the receipt or three (3) business days after the postmarked date
thereof.  In addition, notices hereunder
may be delivered by hand, facsimile transmission or overnight courier, in which
event the notice shall be deemed effective when delivered or transmitted.  All notices and other communications under
this Agreement shall be given to the parties hereto at the following addresses:


 


Employer:


 


Atlantic Southern Bank


1701 Bass Road


Macon, GA  31210


Attn:       Chairman, Board of
Directors


 


Executive:


 


 


(j)            Non-waiver.  No delay or failure by either party to
exercise any right under this Agreement, and no partial or single exercise of
that right, shall constitute a waiver of that or any other right.


 


(k)           Headings.  Headings in this Agreement are for
convenience only and shall not be used to interpret or construe its provisions.


 


(l)            Accelerated Payouts in the
Event of 409A Violations. 
Notwithstanding any other provision of the Agreement to the contrary,
the Employer shall make payments hereunder before such payments are otherwise
due if it determines that the provisions of the Agreement fail to meet the
requirements of Code Section 409A and the rules and regulations
promulgated thereunder; provided, however, that such payment(s) may not
exceed the amount required to be included in income as a result of such failure
to comply with the requirements of Code Section 409A and the rules and
regulations promulgated 


 


13

















 


thereunder
and, to the extent permissible therein, any taxes, penalties, interest and
costs attributable thereto.


 


(m)          Seal.  The parties hereto intend this Agreement to
have the effect of an agreement executed under the seal of each.


 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first set forth above.


 


	
   

  	
  ATLANTIC SOUTHERN BANK:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ William A.
  Fickling, III

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Chairman

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  /s/ Edward P. Loomis,
  Jr.

  



 


14

















 


Exhibit A


 


	
  Date

  	
   

  	
  Accrual

  Balance

  	
   

  
	
  04/30/10

  	
   

  	
  8,441

  	
   

  
	
  05/31/10

  	
   

  	
  16,924

  	
   

  
	
  06/30/10

  	
   

  	
  25,450

  	
   

  
	
  07/31/10

  	
   

  	
  34,018

  	
   

  
	
  08/31/10

  	
   

  	
  42,629

  	
   

  
	
  09/30/10

  	
   

  	
  51,284

  	
   

  
	
  10/31/10

  	
   

  	
  59,981

  	
   

  
	
  11/30/10

  	
   

  	
  68,722

  	
   

  
	
  12/31/10

  	
   

  	
  77,507

  	
   

  
	
  01/31/11

  	
   

  	
  86,335

  	
   

  
	
  02/28/11

  	
   

  	
  95,208

  	
   

  
	
  03/31/11

  	
   

  	
  104,125

  	
   

  
	
  04/30/11

  	
   

  	
  113,087

  	
   

  
	
  05/31/11

  	
   

  	
  122,093

  	
   

  
	
  06/30/11

  	
   

  	
  131,145

  	
   

  
	
  07/31/11

  	
   

  	
  140,242

  	
   

  
	
  08/31/11

  	
   

  	
  149,384

  	
   

  
	
  09/30/11

  	
   

  	
  158,572

  	
   

  
	
  10/31/11

  	
   

  	
  167,806

  	
   

  
	
  11/30/11

  	
   

  	
  177,086

  	
   

  
	
  12/31/11

  	
   

  	
  186,412

  	
   

  
	
  01/31/12

  	
   

  	
  195,786

  	
   

  
	
  02/29/12

  	
   

  	
  205,206

  	
   

  
	
  03/31/12

  	
   

  	
  214,673

  	
   

  
	
  04/30/12

  	
   

  	
  224,187

  	
   

  
	
  05/31/12

  	
   

  	
  233,749

  	
   

  
	
  06/30/12

  	
   

  	
  243,359

  	
   

  
	
  07/31/12

  	
   

  	
  253,017

  	
   

  
	
  08/31/12

  	
   

  	
  262,723

  	
   

  
	
  09/30/12

  	
   

  	
  272,478

  	
   

  
	
  10/31/12

  	
   

  	
  282,281

  	
   

  
	
  11/30/12

  	
   

  	
  292,134

  	
   

  
	
  12/31/12

  	
   

  	
  302,035

  	
   

  
	
  01/31/13

  	
   

  	
  311,986

  	
   

  
	
  02/28/13

  	
   

  	
  321,987

  	
   

  
	
  03/31/13

  	
   

  	
  332,038

  	
   

  
	
  04/30/13

  	
   

  	
  342,140

  	
   

  
	
  05/31/13

  	
   

  	
  352,291

  	
   

  
	
  06/30/13

  	
   

  	
  362,494

  	
   

  
	
  07/31/13

  	
   

  	
  372,748

  	
   

  
	
  08/31/13

  	
   

  	
  383,052

  	
   

  
	
  09/30/13

  	
   

  	
  393,409

  	
   

  
	
  10/31/13

  	
   

  	
  403,817

  	
   

  
	
  11/30/13

  	
   

  	
  414,277

  	
   

  
	
  12/31/13

  	
   

  	
  424,789

  	
   

  
	
  01/31/14

  	
   

  	
  435,354

  	
   

  
	
  02/28/14

  	
   

  	
  445,972

  	
   

  
	
  03/31/14

  	
   

  	
  456,643

  	
   

  
	
  04/30/14

  	
   

  	
  467,367

  	
   

  
	
  05/31/14

  	
   

  	
  478,145

  	
   

  
	
  06/30/14

  	
   

  	
  488,977

  	
   

  
	
  07/31/14

  	
   

  	
  499,863

  	
   

  
	
  08/31/14

  	
   

  	
  510,803

  	
   

  
	
  09/30/14

  	
   

  	
  521,798

  	
   

  
	
  10/31/14

  	
   

  	
  532,849

  	
   

  
	
  11/30/14

  	
   

  	
  543,954

  	
   

  
	
  12/31/14

  	
   

  	
  555,115

  	
   

  
	
  01/31/15

  	
   

  	
  566,331

  	
   

  
	
  02/28/15

  	
   

  	
  577,604

  	
   

  
	
  03/31/15

  	
   

  	
  588,933

  	
   

  
	
  04/30/15

  	
   

  	
  600,319

  	
   

  
	
  05/31/15

  	
   

  	
  611,761

  	
   

  
	
  06/30/15

  	
   

  	
  623,261

  	
   

  
	
  07/31/15

  	
   

  	
  634,819

  	
   

  
	
  08/31/15

  	
   

  	
  646,434

  	
   

  
	
  09/30/15

  	
   

  	
  658,107

  	
   

  
	
  10/31/15

  	
   

  	
  669,839

  	
   

  
	
  11/30/15

  	
   

  	
  681,629

  	
   

  
	
  12/31/15

  	
   

  	
  693,478

  	
   

  
	
  01/31/16

  	
   

  	
  705,387

  	
   

  
	
  02/29/16

  	
   

  	
  717,355

  	
   

  
	
  03/31/16

  	
   

  	
  729,382

  	
   

  
	
  04/30/16

  	
   

  	
  741,470

  	
   

  
	
  05/31/16

  	
   

  	
  753,619

  	
   

  
	
  06/30/16

  	
   

  	
  765,828

  	
   

  
	
  07/31/16

  	
   

  	
  778,098

  	
   

  
	
  08/31/16

  	
   

  	
  790,430

  	
   

  
	
  09/30/16

  	
   

  	
  802,823

  	
   

  
	
  10/31/16

  	
   

  	
  815,278

  	
   

  
	
  11/30/16

  	
   

  	
  827,796

  	
   

  
	
  12/31/16

  	
   

  	
  840,376

  	
   

  
	
  01/31/17

  	
   

  	
  853,019

  	
   

  
	
  02/28/17

  	
   

  	
  865,725

  	
   

  
	
  03/31/17

  	
   

  	
  878,494

  	
   

  
	
  04/30/17

  	
   

  	
  891,328

  	
   

  
	
  05/31/17

  	
   

  	
  904,226

  	
   

  
	
  06/30/17

  	
   

  	
  917,188

  	
   

  
	
  07/31/17

  	
   

  	
  930,215

  	
   

  
	
  08/31/17

  	
   

  	
  943,307

  	
   

  
	
  09/30/17

  	
   

  	
  956,465

  	
   

  
	
  10/31/17

  	
   

  	
  969,688

  	
   

  
	
  11/30/17

  	
   

  	
  982,977

  	
   

  
	
  12/31/17

  	
   

  	
  996,333

  	
   

  
	
  01/31/18

  	
   

  	
  1,009,756

  	
   

  
	
  02/28/18

  	
   

  	
  1,023,246

  	
   

  
	
  03/31/18

  	
   

  	
  1,036,803

  	
   

  
	
  04/30/18

  	
   

  	
  1,050,428

  	
   

  
	
  05/31/18

  	
   

  	
  1,064,121

  	
   

  
	
  06/30/18

  	
   

  	
  1,077,883

  	
   

  
	
  07/31/18

  	
   

  	
  1,091,714

  	
   

  



 


1