Executive Consulting Agreement With Kenneth J. Hunnicutt

Exhibit 10.16


EXECUTIVE CONSULTING AGREEMENT


THIS EXECUTIVE CONSULTING AGREEMENT (the " Agreement" ) is made and entered into as of the 1 st day of January, 2005 between KENNETH J. HUNNICUTT, an individual resident of the State of Georgia (" Consultant" ), and ABC BANCORP , a Georgia corporation (the " Company" ).


W I T N E S S E T H :

WHEREAS, on December 31, 2003, the Company and Consultant amended that certain Amended and Restated Executive Employment Agreement dated as of May 24, 1999 between the Company and Consultant (the " Employment Agreement" ) pursuant to the terms and conditions of Amendment No.1 thereto, to which this Agreement is attached as Exhibit A;

WHEREAS, Consultant has heretofore served as the Company' s Chairman of the Board and Chief Executive Officer, and Consultant desires to change his role with the Company in order to make himself available to provide consulting services to the Company and facilitate its retention of a new chief executive officer;


WHEREAS, simultaneously herewith Consultant has voluntarily resigned as an executive officer and employee of the Company; and


WHEREAS, the Company and Consultant each desire to enter into this Agreement to set forth in writing the terms and conditions of Consultant' s relationship with the Company from and after the date hereof;


NOW, THEREFORE, in consideration of the premises and of the promises and agreements hereinafter set forth, the parties hereto, intending to be legally bound, do hereby agree as follows:

SECTION 1. Term . The term of this Agreement shall begin on the date hereof (the " Effective Date" ) and, unless otherwise earlier terminated pursuant to Section 3 hereof, shall end on the date of the Company' s annual meeting of shareholders held during calendar year 2007, but in no event later than May 31, 2007 (hereinafter referred to as the " Term" ).


SECTION 2. Consulting Services . Consultant hereby agrees to provide such consulting services to the Company during the Term with respect to such matters pertaining to the Company' s business and affairs as may be requested of Consultant from time to time by the Company' s Board of Directors (the " Board" ) or President, provided that Consultant shall not be obligated to consult on any matter that would not be appropriate for an executive-level consultant or a member of senior management. In this regard, Consultant shall be generally available to provide consulting services to the Board during normal business hours, upon reasonable notice, throughout the Term, it being the intent of the parties that Consultant may provide such services

on or off the Company' s premises, unless it shall be necessary for Consultant to be on-site at a specific Company location in connection with a specific project ( e.g. , such as attending management meetings); provided , however , that Consultant may (a) serve as a director or officer of any charitable, religious, civic, educational, or trade organization, and (b) provide consulting services to any other person or entity that is not engaged in a Competing Business, in each case to the extent that such activities, individually or in the aggregate, do not interfere with the performance of Consultant' s duties and responsibilities under this Agreement. In performing Consultant' s services hereunder, Consultant shall be an independent contractor and shall not be, or be deemed to be, an employee or agent of the Company. Except as may be specifically authorized in a writing in advance by the President or the Board of Directors of the Company, Consultant shall have no right or authority to act for or on behalf of the Company or otherwise to enter into any agreements or make any commitments with third parties binding upon the Company.


SECTION 3. Early Termination .


3.1 Right to Terminate . The Term may be terminated prior to its expiration upon the occurrence of any of the following events:

(a) the mutual written agreement of the parties hereto to terminate the Term;


(b) the Company' s termination of the Term, upon written notice to Consultant, for " good cause ," which shall exist (i) if Consultant is convicted of (from which no appeal may be taken), or pleads guilty to, any act of fraud, misappropriation or embezzlement, or any felony, (ii) if Consultant has engaged in conduct or activity materially damaging to the business of the Company (it being understood, however, that neither conduct nor activity pursuant to Consultant' s exercise of his good faith business judgment nor unintentional physical damage to any property of the Company by Consultant shall be a ground for such a determination by the Company), or (iii) Consultant breaches the terms of this Agreement and, within ten (10) days following written notice by the Company to Consultant of such breach, the Consultant has failed to cure such breach; or


(c) the Consultant' s termination of the Term, upon written notice to the Company, if the Company breaches the terms of this Agreement and, within ten (10) days following written notice by the Consultant to the Company of such breach, the Company has failed to cure such breach.


3.2 Consequences of Good Cause Termination and Wrongful Termination . In the event that the Company terminates the Term for " good cause" pursuant to Section 3.1(b) hereof, then, in addition to other remedies available to the Company at law or in equity, the Company shall have no further obligation (a) to make any payments to Consultant under Section 4.1 hereof or (b) to provide Consultant with office space or secretarial assistance under Section 4.3 hereof, provided that in such event the Company shall continue to offer COBRA continuation coverage to Consultant, at Consultant' s expense, for the remainder of the unexpired Term. In the event that the Company terminates Consultant hereunder alleging " good cause" under Section 3.1(b) hereof and it is subsequently determined pursuant to the arbitration


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procedure provided for in Section 10.9 hereof that the termination was not for " good cause" , then the Company shall be obligated to promptly pay Consultant, as liquidated damages and in lieu of all other amounts payable hereunder or damages arising therefrom, (i) a lump-sum amount (retroactive to the date of termination) equal to all remaining unpaid compensation pursuant to Section 4.1 hereof which would otherwise have been payable to Consultant during the Term had the Agreement not been terminated; and (ii) all of Consultant' s reasonable attorneys' fees and costs incurred in connection therewith. In the event that the Consultant terminates the Term in accordance with Section 3.1(c), then, in addition to other remedies available to the Consultant at law or in equity, the Consultant shall have no further obligation (a) to provide services to the Company pursuant to Section 2 or 5 hereof or (b) to comply with the provisions of Section 6.2 hereof.

3.3 Consequences of Mutual Early Termination . In the event that the Company and Consultant mutually agree to terminate the Term pursuant to Section 3.1(a) hereof, the parties' respective rights and obligations under this Agreement shall terminate unless and except to the extent that the parties expressly agree otherwise at the time of such mutual termination.

SECTION 4. Compensation and Related Matters .

4.1 Compensation . During the Term, the Company hereby agrees to pay to Consultant the sum of $13,333.00 per month, such payments to be made on or before the 1 st calendar day of each month commencing February 1, 2005. The amounts payable under this Section 4.1 shall be paid without deduction for state or federal withholding taxes, social security or other like ...