EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 30th day of
April, 2007 by and among Georgia Bank & Trust Company of Augusta (the "Bank"), a
state bank organized under the laws of the State of Georgia (the Bank is
sometimes referred to hereinafter as the "Employer"), and Xxxxxxx X. Xxxxx, a
resident of the State of South Carolina (the "Executive").
RECITALS:
The Employer currently employs the Executive as Group Vice President and
Chief Financial Officer.
The Employer and the Executive now desire to enter into an agreement
respecting the terms and conditions of the Executive's employment by the Bank.
In consideration of the above premises and the mutual agreements
hereinafter set forth, the parties hereby agree as follows:
1. Definitions. Whenever used in this Agreement, the following terms and
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their variant forms shall have the meanings set forth below:
1.1 "Affiliate" shall mean any business entity which controls the
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Company, is controlled by or is under common control with the Company.
1.2 "Agreement" shall mean this Agreement and any exhibits incorporated
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herein together with any amendments hereto made in the manner described in this
Agreement.
1.3 "Area" shall mean the geographic area within a thirty-five (35)
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mile radius of the Bank's primary location at 0000 Xxxxxxx Xxxx, Xxxxxxx,
Xxxxxxx 00000. It is the express intent of the parties that the Area as
defined herein is the area where the Executive performs services on behalf of
the Employer under this Agreement.
1.4 "Business of the Employer" shall mean the business conducted by the
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Employer, which is the business of accepting deposits and making loans.
1.5 "Cause" shall mean, with respect to termination by the Employer:
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(a) A material breach of the terms of this Agreement by the
Executive, including, without limitation, failure by the Executive to
perform his duties and responsibilities in the manner and to the extent
required under this Agreement;
(b) Conduct by the Executive that amounts to fraud, dishonesty or
willful misconduct in the performance of his duties and responsibilities
hereunder;
(c) Conviction of the Executive during the Term of this Agreement
of any felony or a crime involving breach of trust or moral turpitude;
(d) Conduct by the Executive that amounts to willful
insubordination or gross negligence; a continued failure to perform
substantially his duties and responsibilities hereunder; or willful
misconduct that is materially and demonstrably injurious to the Bank or its
personnel, including, but not limited to, financial injury, injury to
morale or injury to reputation; or
(e) Conduct by the Executive that results in a formal action
instituted by written order of any regulatory agency with authority or
jurisdiction over the Employer to remove the Executive from his position as
an officer or executive of the Employer.
1.6 "Change of Control" means any one of the following events:
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(a) the acquisition by any person or persons acting in concert of
the then outstanding voting securities of either the Bank or the Company,
if, after the transaction, the acquiring person (or persons) owns, controls
or holds with power to vote fifty percent (50%) or more of any class of
voting securities of either the Bank or the Company, as the case may be;
provided, however, that the current and future holdings of any person who
is a shareholder of the Company or the Bank as of the Effective Date shall
be disregarded in determining whether the fifty percent (50%) threshold has
been attained;
(b) within any twelve-month period (beginning on or after the
Effective Date) the persons who were directors of either the Bank or the
Company immediately before the beginning of such twelve-month period (the
"Incumbent Directors") shall cease to constitute at least a majority of
such board of directors; provided that any director who was not a director
as of the beginning of such twelve-month period shall be deemed to be an
Incumbent Director if that director were elected to such board of directors
by, or on the recommendation of or with the approval of, at least
two-thirds (2/3) of the directors who then qualified as Incumbent
Directors; and provided further that no director whose initial assumption
of office is in connection with an actual or threatened election contest
relating to the election of directors shall be deemed to be an Incumbent
Director;
(c) a reorganization, merger, share exchange combination, or
consolidation, with respect to which persons who were the stockholders of
the Bank or the Company, as the case may be, immediately prior to such
reorganization, merger, share exchange combination, or consolidation do
not, immediately thereafter, own more than fifty percent (50%) of the
combined voting power entitled to vote in the election of directors of the
reorganized, merged, combined or consolidated company's then outstanding
voting securities; or
(d) the sale, transfer or assignment of all or substantially all
of the assets of the Company and its subsidiaries to any third party.
1.7 "Code" shall mean the Internal Revenue Code of 1986, as amended,
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and the regulations promulgated thereunder.
1.8 "Company" shall mean Southeastern Bank Financial Corporation, a
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corporation organized under the laws of the state of Georgia.
1.9 "Competing Business" shall mean any business, other than the
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Company or its Affiliates, engaged in the Business of the Employer.
1.10 "Confidential Information" means data and information relating to
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the Business of the Employer (which does not rise to the status of a Trade
Secret) which is or has been disclosed to the Executive or of which the
Executive became aware as a consequence of or through the Executive's
relationship to the Employer and which has value to the Employer and is not
generally known to its competitors. Confidential Information shall not include
any data or information that has been voluntarily disclosed to the public by the
Employer (except where such public disclosure has been made by the Executive
without authorization) or that has been independently developed and disclosed by
others, or that otherwise enters the public domain through lawful means.
1.11 "Disability" shall mean the inability of the Executive to perform
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each of his material duties under this Agreement for the duration of the then
applicable elimination period under the Employer's long-term disability policy
then in effect as certified by a physician chosen by the Employer and reasonably
acceptable to the Executive.
1.12 "Effective Date" shall mean January 1, 2007.
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1.13 "Employer Information" means Confidential Information and Trade
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Secrets.
1.14 "Good Reason" means, with respect to a voluntary resignation by
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the Executive following a Change of Control, any one of the following events,
but only if, the Executive provided the Employer with written notice of the
event within forty-five (45) days after the event occurred and an opportunity to
cure for at least ten (10) business days from its receipt of the notice and the
circumstances continued, uncured, through the effective date of the Executive's
resignation (which date may be no sooner than the day after the expiration of
the cure period):
(a) a change in the Executive's position, authority or duties
effected by the Employer;
(b) a reduction in the Executive's base salary rate or annual
bonus opportunity effected by the Employer; or
(c) a requirement by the Employer that the Executive's services be
rendered primarily at a location more than fifty (50) miles from Augusta,
Georgia.
1.15 "Initial Term" shall mean that period of time commencing on the
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Effective Date and running until the earlier of (a) December 31, 2009, or (b)
any earlier termination of employment of the Executive under this Agreement as
provided for in Section 3.
1.16 "Term" shall mean the Initial Term and all subsequent renewal
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periods.
1.17 "Trade Secrets" means Employer information including, but not
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limited to, technical or nontechnical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial data,
financial plans, product plans or lists of actual or potential customers or
suppliers which:
(a) derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use; and
(b) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
2. Duties.
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2.1 Position. The Executive is employed as Group Vice President and
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Chief Financial Officer of the Bank and, subject to the direction of the Chief
Executive Officer of the Bank or his designee(s), shall perform and discharge
well and faithfully the duties which may be assigned to him from time to time by
such person(s) in connection with the conduct of its business.
2.2 Full-Time Status. In addition to the duties and responsibilities
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specifically assigned to the Executive pursuant to Section 2.1 hereof, the
Executive shall:
(a) devote substantially all of his time, energy and skill during
regular business hours to the performance of the duties of his employment
(reasonable vacations and reasonable absences due to illness excepted) and
faithfully and industriously perform such duties;
(b) diligently follow and implement all reasonable and lawful
management policies and decisions communicated to him by the Chief
Executive Officer of the Bank or his designee(s); and
(c) timely prepare and forward to the Chief Executive Officer or
the Board of Directors of the Bank or his designee(s) all reports and
accountings as may be requested of the Executive.
2.3 Permitted Activities. The Executive shall not during the Term be
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engaged (whether or not during normal business hours) in any other business or
professional activity, whether or not such activity is pursued for gain, profit
or other pecuniary advantage; but this shall not be construed as preventing the
Executive:
(a) from investing his personal assets in businesses which will
not require any services on the part of the Executive in their operation or
affairs, in which his participation is solely that of an investor and which
are not Competing Businesses;
(b) from purchasing securities solely as a passive investor in any
corporation, the securities of which are regularly traded provided that
such purchase shall not result in him collectively owning beneficially at
any time five percent (5%) or more of the equity securities of any
Competing Business; or
(c) from participating in other community activities as approved
by the President and Chief Executive Officer or Chief Operating Officer of
the Employer.
3. Term and Termination.
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3.1 Term. This Agreement shall remain in effect for the Term and,
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except as provided in this Section 3.1, shall expire on December 31, 2009. On
or before each December 31st during the Term commencing with December 31, 2007,
the Term may be extended by the affirmative action of the Compensation Committee
of the Board of Directors of the Bank so that, as of the immediately succeeding
January 1st, the Term shall extend for a period of three (3) calendar years. In
the event the Compensation Committee fails to extend the Term on or before any
such December 31st, the Term shall expire on the second anniversary of the first
December 31st for which an extension of the Term is not approved by the
Compensation Committee. In such event, this Agreement shall terminate at the
end of the Term then in effect and the Employer shall have no further obligation
to the Executive except for payment of amounts due and owing under Section 4
hereof as of the last day of the Term.
3.2 Termination. During the Term, the employment of the Executive
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under this Agreement may be terminated only as follows:
3.2.1 By the Employer:
(a) For Cause, upon written notice to the Executive pursuant
to Section 1.5 hereof, in which event the Employer shall have no
further obligation to the Executive except for payment of any amounts
due and owing under Section 4 on the effective date of termination;
(b) Without Cause at any time, provided that the Employer
shall give the Executive thirty (30) days' prior written notice of its
intent to terminate, in which event the Employer shall be required to
continue to meet its obligation to the Executive under Sections 4.1
and 4.2 for the remaining Term then in effect; or
(c) Upon the Disability of Executive at any time, provided
that the Employer shall give the Executive thirty (30) days' prior
written notice of its intent to terminate, in which event, the
Employer shall be required to continue to meet its obligation to the
Executive under Section 4.1 for six (6) months following the
termination or until the Executive begins receiving payments under the
Employer's long-term disability policy, whichever occurs first.
3.2.2 By the Executive:
(a) For any reason other than due to Disability, provided
that the Executive shall give the Employer thirty (30) days' prior
written notice of his
intent to terminate, in which event the Employer shall have no further
obligation to the Executive except for payment of any amounts due and
owing under Section 4 on the effective date of termination; or
(b) Upon the Disability of Executive at any time, provided
that the Executive shall give the Employer thirty (30) days' prior
written notice of its intent to terminate, in which event, the
Employer shall be required to continue to meet its obligation to the
Executive under Section 4.1 for six (6) months following the
termination or until the Executive begins receiving payments under the
Employer's long-term disability policy, whichever occurs first.
3.2.3 At any time upon mutual, written agreement of the parties,
in which event the Employer shall have no further obligation to the
Executive except for payment of any amounts due and owing under Section 4
on the effective date of termination.
3.2.4 Upon expiration of the Term as provided in Section 3.1, in
which event the Employer shall have no further obligation to the Executive
except for payment of any amounts due and owing under Section 4 on the last
day of the Term then in effect.
3.2.5 Notwithstanding anything in this Agreement to the contrary,
the Term shall end automatically upon the Executive's death, in which event
the Employer shall have no further obligation to the Executive's estate
except for payment of any amounts due and owing under Section 4 on the
effective date of termination.
3.2.6 The aggregate amount payable pursuant to Section 3.2.1(b)
shall be paid in substantially equal monthly installments over the
remaining Term. For purposes of Section 3.2.1(b), the bonus component of
the Employer's obligation attributable to Section 4.2 shall be determined
by dividing the sum of the annual bonuses, if any, paid to the Executive
for the three (3) calendar years (or, if fewer, the number of full calendar
years) immediately preceding the calendar year of termination by the full
number of calendar years so determined and dividing that result by twelve
(12).
3.3 Change of Control. If, within twenty-four (24) months following a
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Change of Control, either the Executive terminates his employment with the
Employer under this Agreement for Good Reason or the Employer involuntarily
terminates the Executive's employment under this Agreement other than for Cause,
the Executive, or in the event of his subsequent death, his designated
beneficiaries, as identified to the Employer in writing in a form substantially
similar to Exhibit "A" attached hereto or, in the absence of any such
designation, his estate, as the case may be, shall receive, as liquidated
damages, in lieu of all other claims, an amount equal to two (2) times the sum
of: (a) his Base Salary then in effect; and (b) the average of the annual
bonuses paid to the Executive for the three calendar-year period ending
immediately prior to the calendar year in which the Change of Control occurs.
For purposes of the immediately preceding paragraph, in determining the
annual bonus component of the formula, for any calendar year during the
averaging period in which no annual bonus was payable, $0.00 shall be used in
the averaging calculation for that calendar year. In addition, if the
Executive's termination of employment occurs before the annual bonus, if any,
for the most recently completed calendar year is payable, then the averaging
will be determined by reference to the three most recently completed calendar
years before that calendar year.
The amount payable pursuant to this Section 3.3 shall be paid in
substantially equal monthly installments over a twenty-four (24) month period
commencing as of the first day of the calendar month following the effective
date of the termination of employment.
Anything in this Agreement to the contrary notwithstanding, in the event it
shall be determined in a written opinion by a firm of certified public
accountants selected by the Employer (such determination to be made within
thirty (30) days of a request by the Executive following a Change of Control) or
by the Internal Revenue Service that any payment(s) or other amounts or value
transferred by the Employer to or for the benefit of the Executive under this
Agreement (collectively, the "Payment") would be subject to the excise tax
imposed by Code Section 4999 (such excise tax, together with any interest and
penalties accrued due to the Executive's failure to pay or underpayment of such
tax in reliance on the opinion of the Employer's firm of certified public
accountants, are hereinafter collectively referred to as the "Excise Tax"), then
the Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payment. The Executive shall promptly notify the Employer in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Employer of the Gross-Up Payment. The Executive shall provide
the Employer with a reasonable opportunity to contest such claim.
3.4 Effect of Termination.
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3.4.1 Upon termination of the Executive's employment hereunder for
any reason, the Employer shall have no further obligation to the Executive
or the Executive's estate with respect to this Agreement, except for the
payment of any amounts due and owing under Section 4 on the effective date
of termination and any payments set forth in Sections 3.2.1(b) or (c);
Section 3.2.2(b); or Section 3.3, as applicable.
3.4.2 Upon either an involuntary termination of the Executive's
employment hereunder without Cause (whether before or after a Change of
Control) or upon a resignation by the Executive for Good Reason within
twenty-four (24) months following a Change of Control and continuing for
the lesser of eighteen (18) months or the period during which the Executive
is eligible for COBRA continuation coverage, the Employer shall reimburse
the Executive for the cost to the Executive of COBRA continuation coverage
for himself and his eligible dependents under the primary group medical
plan then maintained by the Employer for which the Executive and his
dependents are eligible.
3.4.3 As a condition to the Employer's payment of any amount in
connection with a termination of the Executive's employment, the Executive
agrees to execute a release in such form as is acceptable to the Employer.
The Employer reserves the right to withhold payment of any amounts payable
upon termination until the revocation period associated with such release
expires (generally, seven (7) days from the date the release is executed).
3.4.4 If the Employer becomes obligated to pay severance to the
Executive under Section 3.2.1(b) and the Executive subsequently renders
services of any type and in any manner for or on behalf of a Competing
Business having a presence in the Area while the payments required by
Section 3.2.1(b) are continuing, such competing employment shall fully
discharge the Employer from the obligation to make any remaining payments
that would otherwise be paid to the Executive under Section 3.2.1(b) from
and after the effective date of such competing employment. The Executive is
required to provide the Employer with prompt notice of any such competing
employment and shall be obligated to repay the Employer for any amounts
that may be received from the Employer that are attributable to payments
due on or after the date of such competing employment. Any forfeiture of
remaining payments pursuant to this Section 3.4.4 shall be in addition to
any other remedies available to the Employer under Section 9 below.
4. Compensation. The Executive shall receive the following salary and
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benefits during the Term, except as otherwise provided below:
4.1 Base Salary. The Executive shall be compensated at a base rate of
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$145,000 per year (the "Base Salary"). The Executive's Base Salary shall be
reviewed by the Chief Executive Officer of the Bank at least annually, and the
Executive shall be entitled to receive annually an increase in such amount, if
any, as may be determined by the Chief Executive Officer of the Bank based on
its evaluation of the Executive's performance. Base Salary shall be payable in
accordance with the Employer's normal payroll practices.
4.2 Incentive Compensation. The Executive shall be entitled to annual
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bonus compensation, if any, as determined by the Compensation Committee of the
Board of Directors of the Bank pursuant to any incentive compensation program as
may be adopted from time to time by the Bank. Any such program shall be based
upon the performance of the Employer for its fiscal year and any such program
shall provide that any annual bonus otherwise earned shall be paid within two
(2) calendar months after the end of that fiscal year.
4.3 Automobile. The Employer will provide the Executive with an
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automobile of a make and model which is commensurate with the Executive's
position and approved by the Employer. The Employer will reimburse the
Executive for expenses associated with the operation, maintenance and repair of
the automobile. Not less frequently than once annually, the Executive will make
a good faith allocation between business and personal use of such vehicle as
required by the Internal Revenue Service guidelines.
4.4 Business Expenses; Memberships. The Employer specifically agrees
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to reimburse the Executive for:
(a) reasonable and necessary business (including travel) expenses
incurred by him in the performance of his duties hereunder, as approved by
the Chief Operating Officer of the Bank; and
(b) the reasonable dues and business related expenditures,
exclusive of any initiation fees, associated with membership in a single
country club and a single civic
association, both as selected by the Executive and in professional
associations which are commensurate with his position;
provided, however, that the Executive shall, as a condition of reimbursement,
submit verification of the nature and amount of such expenses in accordance with
reimbursement policies from time to time adopted by the Employer and in
sufficient detail to comply with rules and regulations promulgated by the
Internal Revenue Service.
4.5 Vacation. The Executive shall be entitled to paid time off in
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accordance with the terms of the Employer's policy as in effect from time to
time.
4.6 Life Insurance. The Employer will provide the Executive with term
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group life insurance coverage providing a death benefit of not less than
$250,000. Any life insurance benefits provided for under this Section 4.6 shall
payable to such beneficiary or beneficiaries as the Executive may designate. If
the term life insurance provided for under this Section cannot be obtained with
a standard or better risk classification with respect to the Executive, the
Employer shall not be obligated to provide such insurance coverage.
4.7 Benefits. In addition to the benefits specifically described in
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this Agreement, the Executive shall be entitled to such benefits as may be
available from time to time to executives of the Employer similarly situated to
the Executive. All such benefits shall be awarded and administered in
accordance with the Employer's standard policies and practices. Such benefits
may include, by way of example only, retirement plans, dental, health, life and
disability insurance benefits, and such other benefits as the Employer deems
appropriate.
4.8 Withholding. The Employer may deduct from each payment of
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compensation hereunder all amounts required to be deducted and withheld in
accordance with applicable federal and state income tax, FICA and other
withholding requirements.
5. Employer Information.
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5.1 Ownership of Employer Information. All Employer Information
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received or developed by the Executive while employed by the Employer will
remain the sole and exclusive property of the Employer.
5.2 Obligations of the Executive. The Executive agrees:
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(a) to hold Employer Information in strictest confidence;
(b) not to use, duplicate, reproduce, distribute, disclose or
otherwise disseminate Employer Information or any physical embodiments of
Employer Information; and
(c) in any event, not to take any action causing or fail to take
any action necessary in order to prevent any Employer Information from
losing its character or ceasing to qualify as Confidential Information or a
Trade Secret.
In the event that the Executive is required by law to disclose any Employer
Information, the Executive will not make such disclosure unless (and then only
to the extent that) the Executive has been advised by independent legal counsel
that such disclosure is required by law and then only after the Executive
provides, given the circumstances, timely prior written notice to the Employer
when the Executive becomes aware that such disclosure has been requested and is
required by law. With respect to Confidential Information, this Section 5 shall
survive for a period of twenty-four (24) months following termination of this
Agreement for any reason, and shall survive termination of this Agreement for
any reason for so long as is permitted by applicable law, with respect to Trade
Secrets.
5.3 Delivery upon Request or Termination. Upon request by the
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Employer, and in any event upon termination of his employment with the Employer,
the Executive will promptly deliver to the Employer all property belonging to
the Employer, including, without limitation, all Employer Information then in
his possession or control.
6. Non-Competition. The Executive agrees that during his employment by the
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Employer hereunder and, in the event of his termination:
- by the Employer without Cause pursuant to Section 3.2.1(b); or
- by the Executive pursuant to Section 3.2.2(a).
for a period of twelve (12) months thereafter, he will not (except on behalf of
or with the prior written consent of the Employer), within the Area, either
directly or indirectly, on his own behalf or in the service of or on behalf of
others, as an executive officer or proposed executive officer of a new financial
institution, undertake for any Competing Business duties and responsibilities
similar to those undertaken by the Executive for the Employer.
7. Non-Solicitation of Customers. The Executive agrees that during his
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employment by the Employer hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(a);
- by the Employer without Cause pursuant to Section 3.2.1(b);
- by the Executive pursuant to Section 3.2.2(a); or
- by the Employer or the Executive in connection with a Change of
Control pursuant to Section 3.3,
for a period of twenty-four (24) months thereafter, he will not (except on
behalf of or with the prior written consent of the Employer) on his own behalf
or in the service of or on behalf of others, solicit, divert or appropriate or
attempt to solicit, divert or appropriate, for any Competing Business any of the
Employer's customers, including prospective customers actively sought by the
Employer, with whom the Executive has or had material contact during the two (2)
year period preceding his termination of employment for the purpose of providing
products or services that are competitive with those provided by the Employer.
8. Non-Solicitation of Employees. The Executive agrees that during his
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employment by the Employer hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(a);
- by the Employer without Cause pursuant to Section 3.2.1(b);
- by the Executive pursuant to Section 3.2.2(a); or
- by the Employer or the Executive in connection with a Change of
Control pursuant to Section 3.3,
for a period of twenty-four (24) months thereafter, he will not, on his own
behalf or in the service of or on behalf of others, solicit, recruit or hire
away or attempt to solicit, recruit or hire away, any employee of the Company or
its Affiliates to a Competing Business, whether or not:
- such employee is a full-time employee or a temporary employee of the
Company or its Affiliates;
- such employment is pursuant to written agreement; and
- such employment is for a determined period or is at will.
9. Remedies. The Executive agrees that the covenants contained in Sections
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5 through 8 of this Agreement are the of essence of this Agreement; that each of
the covenants is reasonable and necessary to protect the business, interests and
properties of the Employer, and that irreparable loss and damage will be
suffered by the Employer should he breach any of the covenants. Therefore, the
Executive agrees and consents that, in addition to all the remedies provided by
law or in equity, the Employer shall be entitled to a temporary restraining
order and temporary and permanent injunctions to prevent a breach or
contemplated breach of any of the covenants and shall be relieved of its
obligation to make any and all payments to the Executive that otherwise are or
may become due and payable to the Executive pursuant to Section 3. The Employer
and the Executive agree that all remedies available to the Employer or the
Executive, as applicable, shall be cumulative.
10. Severability. The parties agree that each of the provisions included in
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this Agreement is separate, distinct and severable from the other provisions of
this Agreement and that the invalidity or unenforceability of any Agreement
provision shall not affect the validity or enforceability of any other provision
of this Agreement. Further, if any provision of this Agreement is ruled invalid
or unenforceable by a court of competent jurisdiction because of a conflict
between the provision and any applicable law or public policy, the provision
shall be redrawn to make the provision consistent with and valid and enforceable
under the law or public policy.
11. No Set-Off by the Executive. The existence of any claim, demand, action
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or cause of action by the Executive against the Employer, or any Affiliate of
the Company, whether predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Employer of any of its rights
hereunder.
12. Notice. All notices, requests, waivers and other communications
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required or permitted hereunder shall be in writing (including telecopy or
similar writing), addressed as follows:
(i) If to the Employer, to it at:
Georgia Bank & Trust Company of Augusta
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxx Xxxxxxx
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(ii) If to the Executive, to him at:
Xxxxxxx Xxxxx
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000 Xxxxxxxxx Xx
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Xxxxx, XX 00000
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All such notices, requests, waivers and other communications shall be deemed to
have been effectively given (a) when personally delivered to the party to be
notified; (b) when sent by confirmed facsimile to the party to be notified at
the number set forth above; (c) three (3) business days after deposit in the
United States Mail postage prepaid by certified or registered mail with return
receipt requested and addressed to the party to be notified as set forth above;
or (d) one (1) business day after deposit with a national overnight delivery
service, postage prepaid, addressed to the party to be notified as set forth
above with next-business-day delivery guaranteed. A party may change its or his
notice address given above by giving the other party ten (10) days' written
notice of the new address in the manner set forth above. Any party hereto may
change his or its address by advising the other, in writing, of such change of
address.
13. Assignment. This Agreement is generally not assignable by the Employer
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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,
interests and obligations of the Executive may not be assigned by him. This
Agreement shall inure to the benefit of and be enforceable by the Executive and
his personal or legal representatives, executors, administrators, successors,
heirs, distributes, devisees and legatees.
14. Waiver. A waiver by one party to this Agreement of any breach of this
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Agreement by another party to this Agreement shall not be effective unless in
writing, and no waiver shall operate or be construed as a waiver of the same or
another breach on a subsequent occasion.
15. Arbitration. Except for matters contemplated by Section 17 below, any
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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 a state court
of Richmond County, Georgia or the federal court for the Southern District of
Georgia. The Employer and the Executive agree to share equally the fees and
expenses associated with the arbitration proceedings.
Executive must initial here: /s/ DR
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16. Attorneys' Fees. With respect to arbitration of disputes and if
----------------
litigation ensues between the parties concerning the enforcement of an
arbitration award and the Executive prevails in the dispute, the Employer will
pay and be financially responsible for all costs, expenses, reasonable
attorneys' fees and reasonable expenses incurred by the Executive (or the
Executive's estate in the event of his death) in connection with the dispute.
17. Applicable Law and Choice of Forum. This Agreement shall be construed
------------------------------------
and enforced under and in accordance with the laws of the State of Georgia. The
parties agree that any appropriate state court in Richmond County, Georgia, or
federal court located in or
embracing Richmond County, Georgia, shall have exclusive jurisdiction of any
case or controversy arising under or in connection with Sections 5 through 9 of
this Agreement shall be a proper forum in which to adjudicate such case or
controversy. The parties consent and waive any objection to the jurisdiction or
venue of such courts.
18. Interpretation. Words importing any gender include all genders. Words
--------------
importing the singular form shall include the plural and vice versa. The terms
"herein," "hereunder," "hereby," "hereto," "hereof" and any similar terms refer
to this Agreement. Any captions, titles or headings preceding the text of any
article, section or subsection herein are solely for convenience of reference
and shall not constitute part of this Agreement or affect its meaning,
construction or effect.
19. Entire Agreement. This Agreement embodies the entire and final
-----------------
agreement of the parties on the subject matter stated in this Agreement. No
amendment or modification of this Agreement shall be valid or binding upon the
Employer or the Executive unless made in writing and signed by both parties.
All prior understandings and agreements relating to the subject matter of this
Agreement are hereby expressly terminated, including, but not limited to, the
offer letter between the parties dated September 6, 2005 and the Change in
Control Agreement between the parties dated January 3, 2006.
20. Rights of Third Parties. Nothing herein expressed is intended to or
--------------------------
shall be construed to confer upon or give to any person, firm or other entity,
other than the parties hereto and their permitted assigns, any rights or
remedies under or by reason of this Agreement.
21. Survival. The obligations of the Executive pursuant to Sections 5, 6,
--------
7, 8 and 9 shall survive the termination of the employment of the Executive
hereunder for the period designated under each of those respective Sections.
22. Representation Regarding Restrictive Covenants. The Executive
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represents that he is not and will not become a party to any noncompetition or
nonsolicitation agreement or any other agreement which would prohibit him from
entering into this Agreement or providing the services for the Employer
contemplated by this Agreement on or after the Effective Date. In the event the
Executive is subject to any such agreement, this Agreement shall be rendered
null and void and the Employer shall have no obligations to the Executive under
this Agreement.
IN WITNESS WHEREOF, the Employer and the Executive have executed and
delivered this Agreement as of the date first shown above.
THE BANK:
GEORGIA BANK & TRUST COMPANY
OF AUGUSTA
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Print Name: Xxxxxx Xxxxxxx
----------------------------
Title: Executive Vice President
-------------------------------
and Chief Operating Officer
-------------------------------
THE EXECUTIVE:
/s/ Xxxxxxx X Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
EXHIBIT A
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DESIGNATION OF BENEFICIARY FORM
Pursuant to Section 3.3 of that certain employment agreement by and among
Georgia Bank & Trust Company of Augusta, and ___________________ dated
_______,__ 200__ (the "Agreement"), I, ____________________, hereby designate
the beneficiary(ies) listed below to receive any benefits under the Agreement
that may be due following my death. This designation shall replace and revoke
any prior designation of beneficiary(ies) made by me under the Agreement.
Full Name(s), Address(es) and Social Security Number(s) of Primary
Beneficiary(ies)*:
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*If more than one beneficiary is named above, the beneficiaries will share
equally in any benefits, unless you have otherwise provided above. Further, if
you have named more than one beneficiary and one or more of the beneficiaries is
deceased at the time of your death, any remaining beneficiary(ies) will share
equally, unless you have provided otherwise above. If no primary beneficiary
survives you, then the contingent beneficiary designated below will receive any
benefits due upon your death. In the event you have no designated beneficiary
upon your death, any benefits due will be paid to your estate. In the event
that you are naming a beneficiary that is not a person, please provide pertinent
information regarding the designation.
Full Name, Address and Social Security Number of Contingent Beneficiary:
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--------------------------------------------------------------------------------
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Date
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Xxxxxxx X. Xxxxx
