Exhibit 10.1


 


EMPLOYMENT
AGREEMENT


 


THIS
AGREEMENT (the “Agreement”) is made as of the 3rd day of December, 2009, by and
among ATLANTIC SOUTHERN FINANCIAL GROUP, INC., a bank holding company
incorporated under the laws of the State of Georgia (the “Company”), ATLANTIC
SOUTHERN BANK, a bank chartered under the laws of the State of Georgia (the “Bank”)
(collectively, the Bank and the Company are referred to hereafter as the “Employer”),
and MARK A. STEVENS, a resident of the State of Georgia (the “Employee”).


 


RECITALS:


 


WHEREAS, the Employee
and the Bank previously entered into an amended and restated employment
agreement, dated September 5, 2008, that was subsequently amended and
assumed by the Company on May 21, 2009 (the “Prior Employment Agreement”);


 


WHEREAS, the employment
relationship among the Company, Bank, and the Employee was verbally modified by
the Company, Bank, and the Employee after the Company assumed the Prior
Employment Agreement; and


 


WHEREAS, the Company,
Bank, and the Employee desire to document in writing their verbal agreement
regarding the modified employment relationship among the Company, Bank, and the
Employee.


 


NOW
THEREFORE, in consideration of the mutual agreements
hereinafter set forth, the parties hereby agree as follows:


 


1.                                      Duties.


 


1.1                               Position.  The Employee is employed as
the President and Chief Executive Officer of the Company and as an Executive
Vice President of the Bank and, subject to the direction of the Boards of
Directors of the Company and the Bank, shall perform and discharge well and
faithfully the duties which may be assigned to him in writing by the Board of
Directors of the Company or the Bank from time to time.


 


1.2                               Full-Time
Status. 
In addition to the duties and responsibilities specifically assigned to
the Employee pursuant to Section 1.1 hereof, the Employee 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 management policies and decisions communicated to him
by the Board of Directors of the Company or the Bank; and (c) timely
prepare and forward to the Board of Directors of the Company or the Bank all
reports and accounting as may be requested of the Employee.


 

















 


1.3                               Permitted
Activities.  The Employee shall devote his entire business
time, attention and energies to the business of the Employer and, while
employed by the Employer, shall not 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 Employee from (a) investing
his personal assets in businesses which (subject to clause (b) below) are
not in competition with the business of the Employer and which will not require
any services on the part of the Employee in their operation or affairs and in
which his participation is solely that of an investor, (b) purchasing
securities in any corporation whose securities are regularly traded provided
that such purchase shall not result in him collectively owning beneficially at
any time five percent (5%) or more of the equity securities of any business in
competition with the business of the Employer; and (c) participating in
civic and professional affairs and organizations and conferences, preparing or
publishing papers or books or teaching so long as the Board of Directors of the
Company or the Bank approves of such activities prior to the Employee’s
engaging in them.


 


2.                                      Employment.


 


2.1                               At Will.  The
Employee’s employment with the Employer is at will and may be terminated by the
Employer or the Employee at any time and for any reason.


 


2.2                               Effect
of Termination.


 


2.2.1                        Upon
termination of the Employee’s employment hereunder for any reason, the Employer
shall have no further obligation to the Employee or the Employee’s estate with
respect to this Agreement, except for the payment of any amounts earned and
unpaid under Section 3 on the effective date of termination of employment
and any obligations reflected by the terms of the retirement arrangement
contemplated by Section 3.2.


 


2.2.2                        Termination of
the employment of the Employee shall be without prejudice to any right or claim
which may have previously accrued to either the Employer or the Employee
hereunder and shall not terminate, alter, supersede or otherwise affect the terms
and covenants and the rights and duties prescribed in this Agreement.


 


3.                                      Compensation.  The Employee shall receive the following
salary and benefits while employed by the Employer:


 


3.1                               Base Salary.  Employee’s
annual base salary shall be One Hundred Seventy Thousand Dollars ($170,000.00) (the “Base
Salary”).  The Employee’s Base Salary
shall be reviewed by the Boards of Directors of the Company and the Bank
annually and shall be adjusted annually thereafter by such amount, if any, as
may be determined by the Boards of Directors in their sole discretion.  Base Salary shall be payable in accordance
with the Employer’s normal payroll practices.


 


3.2                               SERP.  The Employee and the Bank
previously entered into a supplemental retirement agreement (the “SERP”), dated
December 15, 2005, and amended effective January 1, 2009, that shall
continue to be governed by the terms of that agreement as the same may be
amended from time to time hereafter.


 


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3.3                               Business
Expenses:  Memberships.  The Employer specifically
agrees to reimburse the Employee for reasonable business (including travel)
expenses incurred by him in the performance of his duties hereunder, as
approved from time to time by the Board of Directors of the Company or the
Bank; provided, however, that the Employee 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. 
To comply with Section 409A of the Internal Revenue Code, all
expenses eligible for reimbursement under this Agreement must be incurred by
the Employee while employed by the Employer to be eligible for
reimbursement.  The amount of taxable
reimbursable expenses incurred in one taxable year shall not affect the
expenses eligible for reimbursement in any other taxable year.  All taxable reimbursements shall be paid as
soon as administratively practicable, but in no event shall any taxable
reimbursement be paid after the last day of the calendar year following the
calendar year in which the expense was incurred.  The right to reimbursement is not subject to
liquidation or exchanges for other benefits.


 


3.4                               Benefits.  The Employee shall be entitled
to such benefits as may be available from time to time for employees of the
Employer similarly situated to the Employee. 
All such benefits shall be awarded and administered in accordance with
the Employer’s standard policies and practices. 
The Employer makes no representation to the Employee regarding the
taxability or nontaxability of any benefits provided under Section 3.


 


3.5                               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, FICA and other
withholding requirements.


 


3.6                               Apportionment
of Obligations.  The obligations for the payment of the
amounts otherwise payable pursuant to this Section 3 shall be apportioned
between the Company and the Bank as they may agree from time to time in their
sole discretion.


 


4.                                      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.


 


5.                                      No Set-Off by the Employee.  The existence of any claim, demand, action or
cause of action by the Employee 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.


 


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6.                                      Notice.  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:


 


	
  (i)

  	
  If
  to the Company, to it at:

  
	
   

  	
   

  
	
   

  	
  Atlantic
  Southern Financial Group, Inc.

  
	
   

  	
  1701
  Bass Road

  
	
   

  	
  Macon,
  GA  31210

  
	
   

  	
  Attn:  Chairman, Board of Directors

  
	
   

  	
   

  
	
  (ii)

  	
  If
  to the Bank, to it at:

  
	
   

  	
   

  
	
   

  	
  Atlantic
  Southern Bank

  
	
   

  	
  1701
  Bass Road

  
	
   

  	
  Macon,
  GA  31210

  
	
   

  	
  Attn:  Chairman, Board of Directors

  
	
   

  	
   

  
	
  (iii)

  	
  If
  to the Employee, to him at:

  
	
   

  	
   

  
	
   

  	
  Mark
  A. Stevens

  
	
   

  	
  [REDACTED]

  
	
   

  	
  Macon,
  GA  31210-7573

  



 


7.                                      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
Employee may not be assigned by him. 
This Agreement shall inure to the benefit of and be enforceable by the
Employee and his personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.


 


8.                                      Waiver.  A waiver by the Employer of any breach of
this Agreement by the Employee 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.


 


9.                                      Arbitration.  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 any state court located in Bibb County, Georgia or the United States
District Court for the Middle District of Georgia.  The Employer and the Employee agree to share
equally the fees and expenses associated with the arbitration proceedings.


 


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Employee
must initial here:  MAS


 


10.                               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.


 


11.                               Applicable
Law and Choice of Forum.  This Agreement shall be
construed and enforced under and in accordance with the laws of the State of
Georgia.  The
parties agree that any appropriate state court located in Bibb County, Georgia  or federal court for the Middle District of Georgia  shall have exclusive jurisdiction of any case or
controversy arising under or in connection with 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.


 


12.                               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.


 


13.                               Entire
Agreement.  This Agreement embodies the entire and final
agreement of the parties on the subject matter stated in the Agreement.  No amendment or modification of this
Agreement shall be valid or binding upon the Employer or the Employee unless
made in writing and signed by all parties. 
All prior understandings and agreements relating to the subject matter
of this Agreement, including but not limited to the Prior Employment Agreement,
are hereby expressly terminated.  For
purposes of this Section 13, the subject matter of this Agreement does not
include the SERP.


 


14.                               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.


 


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


 


	
   

  	
  THE COMPANY:

  
	
   

  	
   

  
	
   

  	
  ATLANTIC
  SOUTHERN FINANCIAL GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William A.
  Fickling, III

  
	
   

  	
  Print Name:

  	
  William A.
  Fickling, III

  
	
   

  	
  Title:

  	
  Chairman

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK:

  
	
   

  	
   

  
	
   

  	
  ATLANTIC
  SOUTHERN BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William A.
  Fickling, III

  
	
   

  	
  Print Name:

  	
  William A.
  Fickling, III

  
	
   

  	
  Title:

  	
  Chairman

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/Mark A. Stevens

  
	
   

  	
  MARK A. STEVENS

  



 


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