**Exhibit 10.22**

 

**EMPLOYMENT AGREEMENT**

 

This **EMPLOYMENT AGREEMENT** (this “Agreement”) ismade and entered into effective as of the 11th day of April, 2002,by and among **MAIN STREET BANKS, INC**.,a Georgia corporation (hereinafter, the “Company”), and **MAX S. CROWE** (hereinafter, “Executive”), tobe effective as of the Effective Date, as defined in Section 1.

 

**BACKGROUND**

 

**WHEREAS**, the Companydesires to employ Executive and Executive is willing to provide services to theCompany in accordance with the terms and conditions hereinafter set forth;

 

**NOW, THEREFORE**, inconsideration of the foregoing and of the mutual covenants and agreements setforth herein, and other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties hereto agree asfollows:

 

MSC SBH 1.          Effective Date.  The effective date of this Agreement (the“Effective Date”) will be 4/23/02.  ThisAgreement is subject to the condition that as of the Effective Date theExecutive shall have terminated his employment with his previous employer andshall enter into the employment set forth herein.

 

2.              Employment.  Executive is hereby employed on theEffective Date as Executive Vice President and Chief Banking Officer of theCompany and as the President and Chief Operating Officer of Main Street Bank(“MSB”).  In such capacity, Executiveshall have such responsibilities commensurate with such positions as set forthin the bylaws of the Company and MSB and as shall be assigned to him by theBoard of Directors, Chief Executive Officer or the Chief Operating Officer ofthe Company, or by the Board of Directors or the Chief Executive Officer ofMSB.  Executive will report directly tothe Chief Operating Officer of the Company and the Chief Executive Officer ofMSB.

 

3.                EmploymentPeriod.  Unless earlier terminatedherein in accordance with Section 6 hereof, Executive’s employment shallbe for a three year term (the “Employment Period”), beginning on the EffectiveDate.  Beginning on the secondanniversary of the Effective Date and on each anniversary of the EffectiveDate, the Employment Period shall, without further action by Executive or theCompany, be extended by an additional one-year period; provided, however,that either party may, by notice to the other, cause the Employment Period tocease to extend automatically.  Uponsuch notice, the Employment Period shall terminate upon the expiration of thethen-current term, including any prior extensions.  If the Company causes the Employment Period to cease to extendautomatically then, in the absence of Cause (as defined in Section 6(b)), suchaction shall constitute a termination without Cause and Executive shall beentitled to severance as set forth in Section 7(a).

 

4.                Extent ofService.  During the EmploymentPeriod, and excluding any periods of vacation to which Executive is entitled,Executive agrees to devote his business time, attention, skill and effortsexclusively to the faithful performance of his duties hereunder; provided,however, that it shall not be a violation of this Agreement forExecutive to (i) devote reasonable periods of time to charitable and communityactivities and, with the approval of the Company, industry or professionalactivities, and/or (ii) manage personal business interests and investments, solong as such activities do not materially interfere with the performance ofExecutive’s responsibilities under this Agreement.  It is expressly understood and agreed that to the extent that anysuch activities have been conducted by Executive prior to date of thisAgreement, the continued conduct of such activities (or the conduct ofactivities similar in nature and scope thereto) subsequent to the EffectiveDate shall not thereafter be deemed to interfere with the performance ofExecutive’s responsibilities hereunder.

 

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5.                Compensationand Benefits.

 

(a)           Base Salary.  During each year of the Employment Period,the Company will pay to Executive annual base salary in the amount equal toU.S. $215,000 (“Base Salary”), less normal withholdings, payable in equalmonthly or more frequent installments as are customary under the Company’spayroll practices from time to time. Executive’s annual Base Salary shall be increased to $225,000 effectiveJuly 1, 2002.   The CompensationCommittee of the Board of Directors of the Company shall review Executive’sBase Salary annually and in its sole discretion, subject to approval of theBoard of Directors of the Company, may increase Executive’s Base Salary fromyear to year; provided that annual increases of at least 3%, intended toapproximate cost of living increases, shall be automatic.  The annual review of Executive’s salary bythe Board will consider, among other things, Executive’s own performance andthe performance of the Company and MSB, as well as any recommendations of anoutside consulting firm that may be engaged by the Company, from time to time,to evaluate management compensation.

 

(b)           Incentive, Savings and RetirementPlans.  During the EmploymentPeriod, Executive shall be entitled to participate in all incentive, savingsand retirement plans, practices, policies and programs applicable generally tosenior executive officers of the Company (“Peer Executives”), and on the samebasis as such Peer Executives.

 

(c)           Welfare Benefit Plans.  During the Employment Period, Executive andExecutive’s family shall be eligible for participation in, and shall receiveall benefits under, the welfare benefit plans, practices, policies and programsprovided by the Company (including, without limitation, medical, prescription,dental, disability, employee life, group life, accidental death and travelaccident insurance plans and programs) (“Welfare Plans”) to the extentapplicable generally to Peer Executives.

 

(d)           Expenses.  During the Employment Period, Executiveshall be entitled to receive prompt reimbursement for all reasonable expensesincurred by Executive in accordance with the policies, practices and proceduresof the Company to the extent applicable generally to Peer Executives.

 

(e)           Fringe Benefits.  During the Employment Period, Executiveshall be entitled to fringe benefits in accordance with the plans, practices,programs and policies of the Company in effect for Peer Executives.  Without limiting the foregoing, during theEmployment Period, Executive shall be provided a car allowance or aCompany-owned car of a model appropriate to his position, as determined by theCompensation Committee of the Board of Directors of the Company.

 

6.                Terminationof Agreement.

 

(a)           Death, Retirement or Disability.  Executive’s employment shall terminateautomatically upon Executive’s death or Retirement during the EmploymentPeriod.  For purposes of this Agreement,“Retirement” shall mean normal retirement as defined in the Company’s then-currentretirement plan, or if there is no such retirement plan, “Retirement” shallmean voluntary termination after age 65 with ten years of service.  If the Company determines in good faith thatthe Disability of Executive has occurred during the Employment Period (pursuantto the definition of Disability set forth below), it may give to Executivewritten notice of its intention to terminate Executive’s employment.  In such event, Executive’s employment shallterminate effective on the 30th day after receipt of such written notice byExecutive (the “Disability Effective Date”), provided that, within the 30 daysafter such receipt, Executive shall not have returned to full-time performanceof Executive’s duties.  For purposes ofthis Agreement, “Disability” shall mean the inability of Executive, asdetermined by the Board, to substantially perform the essential functions ofhis regular duties and responsibilities, with or without reasonableaccommodation, due to a medically determinable physical or mental illness whichhas lasted (or can reasonably be expected to last) for a period of sixconsecutive months.  At the request ofExecutive or his personal representative, the Board’s determination that theDisability of Executive has occurred shall be certified by two physiciansmutually agreed upon by Executive, or his personal representative, and theCompany.  Failing such independentcertification (if so requested by Executive), Executive’s termination shall bedeemed a termination by the Company without Cause and not a termination byreason of his Disability.

 

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(b)           Termination by the Company.  The Company may terminate Executive’semployment during the Employment Period with or without Cause.  For purposes of this Agreement, “Cause”shall mean:

 

(i)            the willful and continued failure ofExecutive to perform substantially Executive’s duties with the Company (otherthan any such failure resulting from incapacity due to physical or mentalillness, and specifically excluding any failure by Executive, after reasonableefforts, to meet performance expectations), after a written demand forsubstantial performance is delivered to Executive by the Chief ExecutiveOfficer, the Chief Operating Officer or the Board of Directors of the Companywhich specifically identifies the manner in which such officer or the Boardbelieves that Executive has not substantially performed Executive’s duties, or

 

(ii)           the willful engaging by Executive inillegal conduct or gross misconduct which is materially and demonstrably injuriousto MSB or the Company; or

 

(iii)          a requirement by any state or federalauthority regulating the Company or MSB that Executive be removed from hisoffice.

 

For purposesof this provision, no act or failure to act, on the part of Executive, shall beconsidered “willful” unless it is done, or omitted to be done, by Executive inbad faith or without reasonable belief that Executive’s action or omission wasin the best interests of MSB or the Company and its shareholders andsubsidiaries.  Any act, or failure toact, based upon authority given pursuant to a resolution duly adopted by theBoard or based upon the advice of counsel for the Company shall be conclusivelypresumed to be done, or omitted to be done, by Executive in good faith and inthe best interests of MSB and the Company, its shareholders andsubsidiaries.  The cessation ofemployment of Executive under subparagraph (i) or (ii) above shall not bedeemed to be for Cause unless and until there shall have been delivered toExecutive a copy of a resolution duly adopted by the affirmative vote of notless than three-fourths of the entire membership of the Board of Directors ofthe Company at a meeting of such Board called and held for such purpose (afterreasonable notice is provided to Executive and Executive is given anopportunity, together with counsel, to be heard before such Board), findingthat, in the good faith opinion of such Board, Executive is guilty of theconduct described in subparagraph (i) or (ii) above, and specifying theparticulars thereof in detail.

 

(c)           Termination by Executive.  Executive’s employment may be terminated byExecutive for “Good Reason” as defined below. For purposes of this Agreement, “Good Reason” shall mean:

 

(i)            without the written consent ofExecutive, a change in Executive’s status, title, position or responsibilities(including reporting responsibilities) which, in Executive’s reasonablejudgment, represents an adverse change from his status, title, position orresponsibilities as in effect at the Effective Date or, if greater, at any timethereafter; the assignment to Executive of any duties or responsibilitieswhich, in Executive’s reasonable judgment, are inconsistent with his status,title, position or responsibilities as in effect at the Effective Date or, ifgreater, at any time thereafter; or any other change in condition orcircumstances that in Executive’s reasonable judgment makes it materially moredifficult for Executive to carry out the duties and responsibilities of histhen-existing office; provided that Good Reason under this subparagraph (i)excludes an isolated, insubstantial and inadvertent action not taken in badfaith and which is remedied by the Company promptly after receipt of noticethereof given by Executive;

 

(ii)           a reduction, without the writtenconsent of Executive, in Executive’s Base Salary as in effect on the EffectiveDate or as the same may be increased from time to time, or any failure to payExecutive any compensation or benefits to which he is entitled within five (5)days of the date due;

 

(iii)          the failure by the Company (a) tocontinue in effect (without reduction in benefit level and/or rewardopportunities) any compensation or employee benefit plan in which Executiveparticipated as of the Effective Date, or at any time thereafter, that ismaterial to Executive’s total compensation, unless an equitable arrangement(embodied in an ongoing substitute or alternative plan) has been made with

 

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respect to such plan, or (b) tocontinue Executive’s participation therein (or in such substitute oralternative plan) on a basis not materially less favorable, both in terms ofthe amount of benefits provided and the level of Executive’s participationtherein relative to other participants; or

 

(iv)          the Company’s requiring Executive,without his consent, to be based at any office or location other than in theAtlanta, Georgia metropolitan area;

 

(v)           the insolvency or the filing by anyparty, including the Company or any of its subsidiaries, of a petition forbankruptcy of the Company or any such subsidiary, which petition is notdismissed within sixty (60) days;

 

(vi)          any failure by the Company to complywith and satisfy Section 14(c) of this Agreement;

 

(vii)         any purported termination by the Companyof Executive’s employment otherwise than as expressly permitted by thisAgreement; or

 

(viii)        the material breach by the Company ofany provision of this Agreement.

 

Good Reasonshall not include Executive’s death or Disability.  Executive’s continued employment shall not constitute consent to,or a waiver of rights with respect to, any circumstance constituting GoodReason hereunder.

 

(d)           Notice of Termination.  Any termination by the Company for Cause, orby Executive for Good Reason shall be communicated by Notice of Termination tothe other party hereto given in accordance with Section 15(f) of thisAgreement.  For purposes of thisAgreement, a “Notice of Termination” means a written notice which (i) indicatesthe specific termination provision in this Agreement relied upon, (ii) to theextent applicable, sets forth in reasonable detail the facts and circumstancesclaimed to provide a basis for termination of Executive’s employment under theprovision so indicated and (iii) specifies the termination date.  If a dispute exists concerning theprovisions of this Agreement that apply to Executive’s termination ofemployment, the parties shall pursue the resolution of such dispute withreasonable diligence.  Within five (5)days of such a resolution, any party owing any payments pursuant to theprovisions of this Agreement shall make all such payments together withinterest accrued thereon at the rate provided in Section 1274(b)(2)(B) of theInternal Revenue Code of 1986, as amended (the “Code”).

 

(e)           Date of Termination.  “Date of Termination” means (i) ifExecutive’s employment is terminated other than by reason of death orDisability, the date of receipt of the Notice of Termination, or any later datespecified therein, or (ii) if Executive’s employment is terminated by reason ofdeath or Disability, the Date of Termination will be the date of death or theDisability Effective Date, as the case may be. If Executive’s employment is terminated because of the Company’s actionto stop the automatic extension of the Employment Period other than for Causethen the Date of Termination shall be the date of expiration of thethen-current term of the Employment Period.

 

7.                Obligationsof the Company upon Termination.

 

(a)           Termination by Executive for GoodReason; Termination by the Company Other Than for Cause; Cessation of AutomaticExtension by Company Other Than for Cause. If, during the Employment Period, the Company shall terminateExecutive’s employment other than for Cause, or Executive shall terminate employmentfor Good Reason, or the Company shall stop the automatic extension of theEmployment Period other than for Cause, then:

 

(i)            the Company shall pay to Executivein a lump sum in cash within 30 days after the Date of Termination theaggregate of the following amounts:

 

A.       the sum of (1) Executive’s Base Salarythrough the Date of Termination to the extent not theretofore

 

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paid,(2) the product of (x) Executive’s target annual bonus for the year in whichthe Date of Termination occurred (the “Target Annual Bonus”) and (y) afraction, the numerator of which is the number of days in the current fiscalyear through the Date of Termination, and the denominator of which is 365, and(3) any accrued vacation pay to the extent not theretofore paid, and (4) unlessExecutive has elected a different payout date in a prior deferral election, anycompensation previously deferred by Executive (together with any accruedinterest or earnings thereon) to the extent not theretofore paid (the sum ofthe amounts described in clauses (1), (2), (3) and (4) shall be hereinafterreferred to as the “Accrued Obligations”);

 

B.            theamount equal to three times the sum of (1) Executive’s Base Salary in effect asof the Date of Termination, and (2) the Target Annual Bonus;

 

(ii)           for three years after the Date ofTermination, or such longer period as may be provided by the terms of theappropriate plan, program, practice or policy, the Company shall continuebenefits to Executive and/or Executive’s family at least equal to those whichwould have been provided to them in accordance with the Welfare Plans describedin Section 5(c) of this Agreement if Executive’s employment had not beenterminated or, if more favorable to Executive, as in effect generally at anytime thereafter with respect to other Peer Executives and their families,provided, however, that if Executive becomes re-employed with another employerand is eligible to receive medical or other welfare benefits under another employerprovided plan, the medical and other welfare benefits described herein shall besecondary to those provided under such other plan during such applicable periodof eligibility; and

 

(iii)          all of Executive’soutstanding stock options and other incentive awards from the Company in thenature of rights that may be exercised shall become fully exercisable and allrestrictions on Executive’s outstanding awards of restricted stock shall lapse;and

 

(iv)          to the extent nottheretofore paid or provided, the Company shall timely pay or provide toExecutive any other amounts or benefits required to be paid or provided orwhich Executive is eligible to receive under any plan, program, policy orpractice or contract or agreement of the Company (such other amounts andbenefits shall be hereinafter referred to as the “Other Benefits”).

 

(b)           Death; Disability or Retirement.  If Executive’s employment is terminated byreason of Executive’s death, Disability or Retirement during the EmploymentPeriod, this Agreement shall terminate without further obligations to Executiveor his legal representatives under this Agreement, other than for payment ofAccrued Obligations and the timely payment or provision of Other Benefits.  Accrued Obligations shall be paid toExecutive’s estate or beneficiary, as applicable, in a lump sum in cash within30 days of the Date of Termination. With respect to the provision of Other Benefits, the term Other Benefitsas used in this Section 7(b) shall include, without limitation, andExecutive’s estate and/or beneficiaries shall be entitled to receive, benefitsunder such plans, programs, practices and policies relating to death,disability or retirement benefits, if any, as are applicable to Executive onthe Date of Termination.

 

(c)           Termination forCause or Termination by Executive Except for Good Reason.  If Executive’s employment shall beterminated for Cause during the Employment Period, or if Executive voluntarilyterminates employment during the Employment Period (except for Good Reason),this Agreement shall terminate without further obligations to Executive, otherthan for payment of Accrued Obligations (excluding the pro-rata bonus describedin clause 2 of Section 7(a)(i)(A)) and the timely payment or provision of OtherBenefits.

 

8.                Non-exclusivityof Rights.  Nothing in thisAgreement shall prevent or limit Executive’s continuing or future participationin any plan, program, policy or practice provided by the Company and for whichExecutive may qualify, nor, subject to Section 15(g), shall anythingherein limit or otherwise affect such rights as Executive may have under anycontract or agreement with the Company. Amounts which are vested benefits or which Executive is otherwiseentitled to receive under any plan, policy, practice or program of or anycontract or agreement with the Company or any of its affiliated companies at orsubsequent to the Date of Termination shall be payable in accordance with suchplan, policy, practice or program or contract or agreement except as explicitlymodified by this Agreement.

 

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9.                                                 CertainAdditional Payments by the Company.

 

(a)           Anything in this Agreement to thecontrary notwithstanding and except as set forth below, in the event it shallbe determined that any payment or distribution by the Company to or for thebenefit of Executive (whether paid or payable or distributed or distributablepursuant to the terms of this Agreement or otherwise, but determined withoutregard to any additional payments required under this Section 9) (a “Payment”)would be subject to the excise tax imposed by Section 4999 of the Code or anyinterest or penalties are incurred by Executive with respect to such excise tax(such excise tax, together with any such interest and penalties, arehereinafter collectively referred to as the “Excise Tax”), then Executive shallbe entitled to receive an additional payment (a “Gross-Up Payment”) in anamount such that after payment by Executive of all taxes (including anyinterest or penalties imposed with respect to such taxes), including, withoutlimitation, any income taxes (and any interest and penalties imposed withrespect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executiveretains an amount of the Gross-Up Payment equal to the Excise Tax imposed uponthe Payments.

 

(b)           All determinations required to bemade under this Section 9, including whether and when a Gross-Up Payment isrequired and the amount of such Gross-Up Payment and the assumptions to beutilized in arriving at such determination, shall be made by a certified publicaccounting firm selected by Executive and reasonably acceptable to the Companyas may be designated by Executive (the “Accounting Firm”) which shall providedetailed supporting calculations both to the Company and Executive within 15business days of the receipt of notice from Executive that there has been aPayment, or such earlier time as is reasonably requested by the Company.  All fees and expenses of the Accounting Firmshall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall bepaid by the Company to Executive within five days of the receipt of theAccounting Firm’s determination.  Anydetermination by the Accounting Firm shall be binding upon the Company andExecutive.  As a result of theuncertainty in the application of Section 4999 of the Code at the time of theinitial determination by the Accounting Firm hereunder, it is possible thatGross-Up Payments which will not have been made by the Company should have beenmade (“Underpayment”), consistent with the calculations required to be madehereunder.  In the event that Executivethereafter is required to make a payment of any Excise Tax, the Accounting Firmshall determine the amount of the Underpayment that has occurred and any suchUnderpayment shall be promptly paid by the Company to or for the benefit ofExecutive.

 

10.              Costs ofEnforcement.  In any action taken ingood faith relating to the enforcement of this Agreement or any provision herein,Executive shall be entitled to be paid any and all costs and expenses incurredby him in enforcing or establishing his rights thereunder, including, withoutlimitation, reasonable attorneys’ fees, whether suit be brought or not, andwhether or not incurred in trial, bankruptcy or appellate proceedings.

 

11.              Representationsand Warranties.  Executive herebyrepresents and warrants to the Company that Executive is not a party to, orotherwise subject to, any covenant not to compete with any person or entity,and Executive’s execution of this Agreement and performance of his obligationshereunder will not violate the terms or conditions of any contract orobligation, written or oral, between Executive and any other person or entity.

 

12.                                           Restrictionson Conduct of Executive.

 

(a)           General.  Executive and the Company understand andagree that the purpose of the provisions of this Section 12 is to protectlegitimate business interests of the Company and MSB, as more fully describedbelow, and is not intended to eliminate Executive’s post-employment competitionwith the Company

 

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or MSB perse, nor is it intended to impair or infringe upon Executive’s right towork, earn a living, or acquire and possess property from the fruits of hislabor.  Executive hereby acknowledgesthat the post-employment restrictions set forth in this Section 12 arereasonable and that they do not, and will not, unduly impair his ability toearn a living after the termination of this Agreement.  Therefore, subject to the limitations ofreasonableness imposed by law, Executive shall be subject to the restrictionsset forth in this Section 12.

 

(b)           Definitions.  The following capitalized terms used in thisSection 12 shall have the meanings assigned to them below, which definitionsshall apply to both the singular and the plural forms of such terms:

 

*“Competitive Position”*means any employment with a Competitor in which Executive will use or is likelyto use any Confidential Information or Trade Secrets, or in which Executive hasduties for such Competitor that relate to Competitive Services and that are thesame or similar to those services actually performed by Executive for theCompany or MSB;

 

“*Competitive Services”*means the provision of banking products and services similar in scope to thoseprovided by the Company and its subsidiaries as of the Effective Date.

 

*“Competitor”* meansany Person engaged, wholly or in part, in Competitive Services.

 

*“Confidential Information”*meansall information regarding the Company and MSB, their activities, business orclients that is the subject of reasonable efforts by the Company or MSB tomaintain its confidentiality and that is not generally disclosed by practice orauthority to persons not employed by the Company or MSB, but that does not riseto the level of a Trade Secret. “Confidential Information” shall include, but is not limited to,financial plans and data concerning the Company or MSB; management planninginformation; business plans; operational methods; market studies; marketingplans or strategies; product development techniques or plans; customer lists;details of customer contracts; current and anticipated customer requirements;past, current and planned research and development; business acquisition plans;and new personnel acquisition plans. “Confidential Information” shall not include information that has becomegenerally available to the public by the act of one who has the right todisclose such information without violating any right or privilege of theCompany or MSB.  This definition shallnot limit any definition of “confidential information” or any equivalent termunder state or federal law.

 

*“Determination Date”*means the date of termination of Executive’s employment with the Company or MSBfor any reason whatsoever or any earlier date (during the Employment Period) ofan alleged breach of the Restrictive Covenants by Executive.

 

*“Person”* means anyindividual or any corporation, partnership, joint venture, limited liabilitycompany, association or other entity or enterprise.

 

*“Principal or Representative”*means a principal, owner, partner, shareholder, joint venturer, investor,member, trustee, director, officer, manager, employee, agent, representative orconsultant.

 

*“Protected Customers”*means any Person to whom the Company or MSB has sold its products or servicesor solicited to sell its products or services during the twelve (12) monthsprior to the Determination Date.

 

*“Protected Employees”*meansemployees of the Company or MSB who were employed by the Company or MSB at anytime within six (6) months prior to the Determination Date.

 

*“Restricted Period”*means the Employment Period and a period extending two (2) years from the Dateof Termination.

 

*“Restricted Territory”*means the areas within a 25 mile radius of each banking

 

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office of theCompany or its subsidiaries immediately after the Effective Date.

 

*“Restrictive Covenants”*means the restrictive covenants contained in Section 9(c) hereof.

 

*“Trade Secret”* means all information, withoutregard to form, including, but not limited to, technical or nontechnical data,a formula, a pattern, a compilation, a program, a device, a method, atechnique, a drawing, a process, financial data, financial plans, productplans, distribution lists or a list of actual or potential customers,advertisers or suppliers which is not commonly known by or available to thepublic and which information:  (A) deriveseconomic value, actual or potential, from not being generally known to, and notbeing readily ascertainable by proper means by, other persons who can obtaineconomic value from its disclosure or use; and (B) is the subject of effortsthat are reasonable under the circumstances to maintain its secrecy.  Without limiting the foregoing, Trade Secretmeans any item of confidential information that constitutes a “tradesecret(s)”under the common law or statutory law of the State of Georgia.

 

(c)                                  RestrictiveCovenants.

 

(i)            Restriction onDisclosure and Use of Confidential Information and Trade Secrets.  Executive understands and agrees that theConfidential Information and Trade Secrets constitute valuable assets of theCompany and its affiliated entities, and may not be converted to Executive’sown use.  Accordingly, Executive herebyagrees that Executive shall not, directly or indirectly, at any time during theRestricted Period reveal, divulge, or disclose to any Person not expresslyauthorized by the Company any Confidential Information, and Executive shallnot, directly or indirectly, at any time during the Restricted Period use ormake use of any Confidential Information in connection with any businessactivity other than that of the Company or MSB.  Throughout the term of this Agreement and at all times after thedate that this Agreement terminates for any reason, Executive shall notdirectly or indirectly transmit or disclose any Trade Secret of the Company orMSB to any Person, and shall not make use of any such Trade Secret, directly orindirectly, for himself or for others, without the prior written consent of theCompany.  The parties acknowledge andagree that this Agreement is not intended to, and does not, alter either theCompany’s rights or Executive’s obligations under any state or federalstatutory or common law regarding trade secrets and unfair trade practices.

 

Anything herein to the contrary notwithstanding, Executive shall not berestricted from disclosing or using Confidential Information that is requiredto be disclosed by law, court order or other legal process; provided, however,that in the event disclosure is required by law, Executive shall provide theCompany with prompt notice of such requirement so that the Company may seek anappropriate protective order prior to any such required disclosure byExecutive.

 

(ii)           Nonsolicitationof Protected Employees.  Executiveunderstands and agrees that the relationship between the Company or MSB andeach of their Protected Employees constitutes a valuable asset of the Companyand may not be converted to Executive’s own use.  Accordingly, Executive hereby agrees that during the RestrictedPeriod Executive shall not directly or indirectly on Executive’s own behalf oras a Principal or Representative of any Person or otherwise solicit or induceany Protected Employee to terminate his or her employment relationship with theCompany or MSB or to enter into employment with any other Person.

 

(iii)          Restriction onRelationships with Protected Customers. Executive understands and agrees that the relationship between theCompany or MSB and each of their Protected Customers constitutes a valuableasset of the Company and may not be converted to Executive’s own use.  Accordingly, Executive hereby agrees that,during the Restricted Period, Executive shall not, without the prior writtenconsent of the Company, directly or indirectly, on Executive’s own behalf or asa Principal or Representative of any Person, solicit, divert, take away orattempt to solicit, divert or take away a Protected Customer for the purpose ofproviding or selling Competitive Services; provided, however,that the prohibition of this covenant shall apply only to Protected Customerswith whom Executive had Material Contact on the Company’s or MSB’s behalfduring the twelve (12) months immediately preceding the termination of hisemployment hereunder.  For purposes ofthis Agreement, Executive had “Material Contact” with a Protected

 

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Customer if(a) he had business dealings with the Protected Customer on the Company’s orMSB’s behalf; (b) he was responsible for supervising or coordinating thedealings between the Company or MSB and the Protected Customer; or (c) heobtained Trade Secrets or Confidential Information about the customer as aresult of his association with the Company or MSB.

 

(iv)          Noncompetitionwith the Company and MSB.  Theparties acknowledge: (A) that Executive’s services under this Agreement requirespecial expertise and talent in the provision of Competitive Services and thatExecutive will have substantial contacts with customers of the Company and MSB;(B) that pursuant to this Agreement, Executive will be placed in a position oftrust and responsibility and he will have access to a substantial amount of ConfidentialInformation and Trade Secrets and that the Company and MSB are placing him insuch position and giving him access to such information in reliance upon hisagreement not to compete with the Company or MSB during the Restricted Period;(C) that due to his management duties, Executive will be the repository of asubstantial portion of the goodwill of the Company and MSB and would have anunfair advantage in competing with the Company or MSB; (D) that due toExecutive’s special experience and talent, the loss of Executive’s services tothe Company or MSB under this Agreement cannot reasonably or adequately becompensated solely by damages in an action at law; (E) that Executive iscapable of competing with the Company and MSB; and (F) that Executive is capableof obtaining gainful, lucrative and desirable employment that does not violatethe restrictions contained in this Agreement. In consideration of the compensation and benefits being paid and to bepaid by the Company to Executive hereunder, Executive hereby agrees that,during the Restricted Period, Executive will not, without prior written consentof the Company, directly or indirectly seek or obtain a Competitive Position inthe Restricted Territory with a Competitor; provided, however,that the provisions of this Agreement shall not be deemed to prohibit theownership by Executive of any securities of the Company or its affiliatedentities or not more than five percent (5%) of any class of securities of anycorporation having a class of securities registered pursuant to the SecuritiesExchange Act of 1934, as amended.

 

(d)           Enforcement ofRestrictive Covenants.

 

(i)            Rights andRemedies Upon Breach.  In the eventExecutive breaches, or threatens to commit a breach of, any of the provisionsof the Restrictive Covenants, the Company shall have the right and remedy toenjoin, preliminarily and permanently, Executive from violating or threateningto violate the Restrictive Covenants and to have the Restrictive Covenantsspecifically enforced by any court of competent jurisdiction, it being agreedthat any breach or threatened breach of the Restrictive Covenants would causeirreparable injury to the Company and that money damages would not provide anadequate remedy to the Company.  Suchright and remedy shall be in addition to, and not in lieu of, any other rightsand remedies available to the Company at law or in equity.

 

(ii)           Severability ofCovenants.  Executive acknowledgesand agrees that the Restrictive Covenants are reasonable and valid in time andscope and in all other respects.  Thecovenants set forth in this Agreement shall be considered and construed asseparate and independent covenants. Should any part or provision of any covenant be held invalid, void orunenforceable in any court of competent jurisdiction, such invalidity, voidnessor unenforceability shall not render invalid, void or unenforceable any otherpart or provision of this Agreement.  Ifany portion of the foregoing provisions is found to be invalid or unenforceableby a court of competent jurisdiction because its duration, the territory, thedefinition of activities or the definition of information covered is consideredto be invalid or unreasonable in scope, the invalid or unreasonable term shallbe redefined, or a new enforceable term provided, such that the intent of theCompany and Executive in agreeing to the provisions of this Agreement will notbe impaired and the provision in question shall be enforceable to the fullestextent of the applicable laws.

 

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13.              Arbitration.  Any claim or dispute arising under thisAgreement shall be subject to arbitration, and prior to commencing any courtaction, the parties agree that they shall arbitrate all controversies.  The arbitration shall be conducted inAtlanta, Georgia, in accordance with the Employment Dispute Rules of theAmerican Arbitration Association and the Federal Arbitration Act, 9 U.S.C. §1, *et. seq.* The arbitrator(s) shall be authorized to award both liquidated andactual damages, in addition to injunctive relief, but no punitive damages.  Such an award shall be binding andconclusive upon the parties hereto, subject to 9 U.S.C. §10.  Each party shall have the right to have theaward made the judgment of a court of competent jurisdiction.

 

14.              Assignment andSuccessors.

 

(a)           This Agreement ispersonal to Executive and without the prior written consent of the Companyshall not be assignable by Executive otherwise than by will or the laws ofdescent and distribution.  This Agreementshall inure to the benefit of and be enforceable by the Executive’s legalrepresentatives.

 

(b)           This Agreement shallinure to the benefit of and be binding upon the Company and its successors andassigns.

 

(c)           The Company willrequire any successor (whether direct or indirect, by purchase, merger,consolidation or otherwise) to all or substantially all of the business and/orassets of the Company to assume expressly and agree to perform this Agreementin the same manner and to the same extent that the Company would be required toperform it if no such succession had taken place.

 

15.              Miscellaneous.

 

(a)           Waiver.  Failure of any party to insist, in one ormore instances, on performance by the other in strict accordance with the termsand conditions of this Agreement shall not be deemed a waiver or relinquishmentof any right granted in this Agreement or of the future performance of any suchterm or condition or of any other term or condition of this Agreement, unlesssuch waiver is contained in a writing signed by the party making the waiver.

 

(b)           Severability.  If any provision or covenant, or any partthereof, of this Agreement should be held by any court to be invalid, illegalor unenforceable, either in whole or in part, such invalidity, illegality or unenforceabilityshall not affect the validity, legality or enforceability of the remainingprovisions or covenants, or any part thereof, of this Agreement, all of whichshall remain in full force and effect.

 

(c)           Other Agents.** **Nothingin this Agreement is to be interpreted as limiting the Company from employingother personnel on such terms and conditions as may be satisfactory to it.

 

(d)           Entire Agreement.  Except as provided herein, this Agreementcontains the entire agreement between the Company and Executive with respect tothe subject matter hereof and, from and after the Effective Date, thisAgreement shall supersede any other agreement between the parties with respectto the subject matter hereof.

 

(e)           Governing Law.  Except to the extent preempted by federallaw, and without regard to conflict of laws principles, the laws of the Stateof Georgia shall govern this Agreement in all respects, whether as to itsvalidity, construction, capacity, performance or otherwise.

 

(f)            Notices. All notices, requests, demands and other communications required orpermitted hereunder shall be in writing and shall be deemed to have been dulygiven if delivered or three days after mailing if mailed, first class,certified mail, postage prepaid:

 
| To Company: |   | Main Street  Banks, Inc.                    |
|-------------|--------|---------------------------------------------|
|        |   | Edward C. Milligan, Chief Executive Officer |
|        |   | 676 Chastain Road                           |
|        |   | Kennesaw, Georgia 30144                     |

 

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|          |   |                      |
|---------------|--------|---------------------------|
| To Executive: |   | Max S. Crowe              |
|          |   | 1121 Floyd Street         |
|          |   | Covington, GA  30014 |

 

Any party may changethe address to which notices, requests, demands and other communications shallbe delivered or mailed by giving notice thereof to the other party in the samemanner provided herein.

 

(g)           Amendments andModifications.  This Agreement maybe amended or modified only by a writing signed by both parties hereto, whichmakes specific reference to this Agreement.

 

(h)           Construction.  Each party and his or its counsel havereviewed this Agreement and have been provided the opportunity to revise thisAgreement and accordingly, the normal rule of construction to the effect thatany ambiguities are to be resolved against the drafting party shall not beemployed in the interpretation of this Agreement.  Instead, the language of all parts of this Agreement shall beconstrued as a whole, and according to its fair meaning, and not strictly foror against any party.

 

**IN WITNESS WHEREOF**,the parties hereto have duly executed and delivered this Agreement as of thedate first above written.

 
|   |   |   | **MAIN STREET BANKS, INC.** |
|--------|--------|--------|-----------------------------|
|   |   |   |                        |   |
|   |   |   |                        |   |
|   |   |   | By:                         | /s/ Samuel  B. Hay III |   |
|   |   |   |                        | Samuel B. Hay III |
|   |   |   |                        | Chief Operating Officer |
|   |   |   |                        |   |
|   |   |   |                        |   |
|   |   |   | **EXECUTIVE:**              |
|   |   |   |                        |   |
|   |   |   |                        |   |
|   |   |   | /s/ Max S.  Crowe           |   |
|   |   |   | Max S. Crowe                |
|        |        |        |                             |  |  |  |

 

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