Quick link to: Employment Agreement for Reggie R. Harper Ancillary Confidentiality and Non-Competition Agreement for Reggie R. Harper Employment Agreement for Cordell H. White Ancillary Confidentiality and Non-Competition Agreement for Cordell H. White
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This
EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made
and entered into as of the 2nd day of
November, 2007, by and between First Guaranty Bank, a Louisiana state nonmember
bank (the “Bank”), and Xxxxxx X. Xxxxxx, an individual resident of the
State of Louisiana (the “Executive”) (the signatories to this Agreement
may be referred to individually as a “Party” and jointly as the
“Parties”).
WITNESSETH:
WHEREAS, First
Guaranty Bancshares, Inc. (the sole shareholder of the Bank and First Community
Holding Company (along with its subsidiary First Community Bank, the current
employer of the Executive) have entered into an Agreement and Plan of
Reorganization, dated November 2, 2007 (“Merger Agreement”), pursuant to
which the First Community Holding Company and First Community
Bank will merge into First Guaranty Bancshares, Inc. and the Bank,
respectively; and
WHEREAS,
the Executive has considerable experience, expertise and training in management
related to banking and services offered by the Bank; and
WHEREAS,
the Bank desires for the Executive to be employed as a member of the Senior
Management Team of the Bank following the Merger, and the Executive desires
to
accept employment, subject to and on the terms and conditions set forth in
this
Agreement; and
WHEREAS,
the Bank and the Executive have read and understood the terms and provisions
set
forth in this Agreement and have been afforded a reasonable opportunity to
review this Agreement with their respective legal counsel.
NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth
in
this Agreement, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Executive, and the Bank agree
as follows:
1. Term
of Employment. This Agreement shall become effective (the
“Effective Date”) upon the Effective Time for the Merger (as defined in
the Merger Agreement) and shall continue in effect until December 31,
2008 (the “Term of Employment”), unless terminated pursuant to Section 5 of this Agreement.
2. Duties
and Authority. During the Term of Employment, the Executive shall
serve as a senior vice-president with a role appropriate to a member of the
Bank’s senior management team. The Executive shall perform in a
professional manner the authorized and customary duties associated with his
position and such other reasonable duties and responsibilities commensurate
with
the Executive’s position as the Board of Directors or Chief Executive Officer of
the Bank may assign to the Executive from time to time.
3. Compensation
and Benefits. All payments of compensation to the Executive shall
be payable in accordance with the Bank’s ordinary payroll and other policies and
procedures, provided that the Executive’s salary, pursuant to Section 3(a) shall be payable
not
less frequently than monthly.
(a) Base
Salary. During the Term of Employment, the Bank agrees to pay the
Executive a base salary of not less than $130,000 annually (“Base
Salary”), appropriately prorated for partial months at the commencement and
end of the term of this Agreement. The Bank shall have the right to
deduct from any payment of all compensation to the Executive hereunder any
federal, state or local taxes required by law to be withheld with respect to
such
payments and any other amounts specifically authorized to be withheld or
deducted by the Executive
(b) Bonus
Programs. The Executive will be entitled to participate
in any and all bonus plans of the Bank whether such bonus plans are presently
existing or may hereafter be implemented by the Bank at levels equal to
similarly situated officers. The Executive shall also be entitled to
participate in any benefit programs which are applicable to all employees of
the
Bank or to executive employees of the Bank in accordance with the Bank policy,
and the provisions of said benefit programs. This Agreement, which
provides certain additional benefits, does not preclude the Executive’s
participation in such other plans of the Bank.
(c) Medical
Benefits; Vacation. The Executive shall be entitled to receive
employee and dependent health insurance, paid sick leave annually in
accordance with the Bank’s policy, four (4) weeks paid vacation annually and any
additional benefits provided to all the Bank employees all in accordance with
the Bank’s employment policies. All employee benefits provided to the
Executive by the Bank incident to the Executive’s employment shall be governed
by the applicable plan documents, summary plan descriptions or employment
policies, and may be modified, suspended or revoked at any time, in accordance
with the terms and provisions of the applicable documents.
(d) Reimbursement
of Expenses. During the Term of Employment, the Bank shall
promptly pay all reasonable expenses incurred by the Executive for all
reasonable travel and other business related expenses incurred by him in
performing his obligations under this Agreement in accordance with the Bank’s
travel and business expense policy, such expenses to be reviewed by the Bank’s
Board of Directors on a periodic basis.
4. Compensation
After Termination.
(a) If
the
Term of Employment is terminated (i) by the Bank for Cause (as defined
below) or due to the death or disability of the Executive, (ii) by the
Executive other than for Good Reason (as defined in Section 5(e)) or (iii) through expiration of the Term of
Employment, the Bank shall have no further obligations hereunder or otherwise
with respect to the Executive’s employment from and after the termination or
expiration date (except payment of the Executive’s Base Salary and any bonus
accrued and reimbursement of all reasonable travel and other business related
expenses incurred through the date of termination or expiration) and the Bank
shall continue to have all other rights available hereunder.
(b) If
the
Term of Employment is terminated (i) by the Bank Without Cause (as defined
in
Section 5(d)) or (ii) by the Executive for Good
Reason (as defined in Section 5(e))), the Executive
shall be entitled to receive as severance pay (in addition to the payment of
the
Base Salary and reimbursement of expenses through the date of termination),
an
amount equal to the Executive’s remaining Base Salary for the year of
termination payable within thirty (30) days of the end of the Term of
Employment. After the thirtieth (30th) day following
the
end of the Term of Employment, the outstanding severance payment shall, until
paid, bear interest per annum at the prime lending rate as published in The
Wall
Street Journal on the thirty-first (31st) day following
the
end of the Term of Employment. Except as otherwise specifically
provided herein, the Bank shall have no other obligations hereunder or otherwise
with respect to the Executive’s employment from and after the termination or
expiration date, and the Bank shall continue to have all other rights available
hereunder.
(c) No
termination under Section 5 shall terminate or
adversely affect any rights of the Executive then vested under any disability
or
other benefit program of the Bank.
5. Termination.
(a) Death. If
the Executive dies during the Term of Employment and while in the employ of
the
Bank, this Agreement shall automatically terminate and neither the Bank shall
have no further obligation to the Executive or his estate under this Agreement
(other than death benefits payable under the benefit plans referenced in Section
3(b) or Section 3(c)),
except that the Bank shall pay the Executive’s estate that portion of the
Executive’s Base Salary under Section 3(a) accrued
through the date on which the Executive’s death occurred and reimbursement of
all reasonable travel and other business related expenses incurred through
the
date on which the Executive’s death occurred. Such payment of Base
Salary and expenses to the Executive’s estate shall be made in the same manner
as other payroll obligations of the Bank.
(b) Disability.
(i) the
Bank
may terminate this Agreement if, during the Term of Employment, the Executive
shall be prevented from performing his duties hereunder by reason of becoming
disabled. For purposes of this Agreement, “disability” shall mean
that the Executive is unable to engage in any substantial gainful activity
by
reason of any medically determinable physical or mental impairment that can
be
expected to result or death or expected to last for a continuous period of
not
less than 12 months. During any period prior to termination during
which the Executive fails to perform his duties as a result of incapacity due
to
physical or mental illness, the Executive shall continue to receive his full
salary at the rate then in effect for such period until his employment
terminates pursuant to this Section 5(b), provided that
payments so made to the Executive
during such period shall be reduced by the sum of the amounts, if any, payable
to the Executive under any disability benefit plans of the Bank that were not
previously applied to reduce such payment.
(ii) In
the
event of a termination pursuant to this Section 5(b), the Bank shall
be relieved of all their
obligations under this Agreement, except that the Bank shall pay to the
Executive, or his estate in the event of his subsequent death,(i) the
Executive’s Base Salary under Section 3(a) through
the date on which such termination shall have occurred, reduced during such
period by the amount of any benefits received by the Executive under any
disability policy maintained by the Bank and any death benefits payable under
the benefit plans referenced in Section 3(b) or
Section 3(c) and (ii) reimbursement of all
reasonable travel and other business related expenses incurred through the
date
on which such termination shall have occurred. All such payments to
the Executive or his estate shall be made in the same manner as other payroll
obligations of the Bank.
(c) Discharge
for Cause. At any time during the Term of Employment, the Bank
may discharge the Executive for Cause and terminate this Agreement by delivering
to the Executive a written notice of discharge. The notice of
discharge shall set forth the reasons for the Executive’s termination for
Cause. For purposes of this Agreement, “Cause” shall be
defined as the occurrence of any of the following events:
(i) The
determination by the Board of Directors of the Bank, in the exercise of its
reasonable judgment, after consultation with its legal counsel, that the
Executive has committed an act or acts constituting (1) a felony, or other
crime (whether a felony or a misdemeanor) involving moral turpitude, dishonesty
or theft, (2) a breach of fiduciary duty, or (3) fraud;
(ii) The
determination by the Board of Directors of the Bank, in the exercise of its
reasonable judgment, that (1) the Executive has willfully failed to follow
the policies adopted by the Board of Directors, other than technical or
immaterial failures; (2) the Executive has failed to meet the duties and
responsibilities inherent in Section 2 of this
Agreement, other than technical or immaterial failures; or (3) the
Executive has engaged in such intentional or reckless actions or omissions
that
would constitute unsafe or unsound banking practices, and, in the case of any
termination pursuant to this 5(c)(ii), the
Executive fails to cure such situation, assuming that such situation is curable,
within thirty (30) days after written notice to the Executive by the Bank
specifying in reasonable detail the reason for termination by the Board of
Directors;
(iii) The
determination by the Board of Directors of the Bank, in the exercise of its
reasonable judgment, after consultation with its legal counsel, that the
Executive has committed a breach or violation of this Agreement, and fails
to
cure such breach or violation within thirty (30) days after written notice
to
the Executive by the Bank specifying in reasonable detail the
alleged breach or violation;
(iv) The
determination by the Board of Directors of the Bank, after consultation with
its
legal counsel, that the Executive has engaged in gross misconduct in the course
and scope of his employment with the Bank, which shall be defined to mean
indecency, immorality, dishonesty, unlawful harassment or discrimination, use
of
illegal drugs, or fighting; or
(v) In
the
event the Executive is prohibited from engaging in the business of banking
by
any governmental regulatory agency having jurisdiction over the
Bank.
For
purposes of this Agreement, the Executive shall not be deemed to be in breach of
this Agreement for his failure to substantially perform his duties under this
Agreement where such failure results because the Executive has become disabled
within the meaning of Section 5(b). In such cases, termination
of the
Executive shall be governed by the provisions of Section 5(b).
(d) Discharge
Without Cause. At any time during the Term of Employment, the
Bank shall be entitled to terminate the Executive’s employment and this
Agreement “Without Cause,” by providing him with at least thirty (30)
days prior written notice of termination. Any termination of this
Agreement which is not for Cause, as defined above in Section 5(c), or which does
not
result from the death or disability of the Executive, as set forth in Sections
5(a) or 5(b),
respectively, shall
be deemed to be a termination Without Cause. In the event of a
termination Without Cause, the Bank shall become obligated to pay the Executive
the severance payment set forth in Section 4(b).
(e) Good
Reason. At any time during the Term of Employment, the Executive
may resign for Good Reason and terminate this Agreement by delivering to the
Bank a written notice of resignation for Good Reason. The notice of
resignation shall set forth the reasons for the Executive’s resignation for Good
Reason. For purposes of this Agreement, “Good Reason” shall be
defined as the occurrence of any of the following events:
(i) the
assignment to Executive of any duties materially and adversely inconsistent
with
Executive’s status as a senior vice-president and member of the Bank’s senior
management team or a material and adverse alteration in the nature of
Executive’s authority, duties or responsibilities;
(ii) the
reduction by the Bank of Executive’s Base Salary;
(iii) the
requirement that Executive be based at any office or location other than an
office of the Bank in Hammond, Louisiana; or
(iv) the
failure of any successor to the Bank to assume this Agreement.
6. Resignation. The
Executive shall be entitled to terminate this Agreement by providing the Bank
with a written notice of resignation at least thirty (30) days prior to the
intended resignation date, upon which he shall be entitled to receive any Base
Salary which has been earned by him through the effective date of such
resignation.
7. Arbitration. Any
dispute or claim arising hereunder shall be settled by
arbitration. Any party may commence arbitration by sending a written
notice or arbitration to the other party. The notice will state the
dispute with particularity. The parties shall mutually agree to the
selection of a qualified arbitrator. If they do not agree with
fifteen (15) days, then one party may request that a then presiding judge in
Tangipahoa Parish, Louisiana select an attorney to become the arbitrator in
this
matter. The arbitration hearing shall be commenced thirty (30) days
following the date of delivery of notice of arbitration by one party to the
other, under the terms of the Federal Arbitration Act. The
arbitration shall be conducted in Tangipahoa Parish, Louisiana in accordance
with the Federal Arbitration Act, and each party shall retain the right to
cross-examine the opposing party’s witnesses, either through legal counsel,
expert witnesses or both. As part of his or her decision, the
arbitrator may allocate the cost of arbitration, including fees of attorneys
and
experts, as he or she deems fair and equitable in light of all relevant
circumstances. Judgment on the award rendered by the arbitrator may
be entered in any court of competent jurisdiction.
8. Goodwill. The
Executive acknowledges that the Bank will, over a period of time, develop,
significant relationships and goodwill between itself and its clients and
customers by providing superior products and services. The Executive
further acknowledges that these relationships and this goodwill are a valuable
asset belonging solely to the Bank. The Executive understands that
the Bank agrees to compensate him, as well as to reimburse him for reasonable
and necessary business expenses incurred, while he builds and/or maintains
business relationships and goodwill with the Bank’s current and prospective
clients and customers on a personal level. The Executive acknowledges
that the responsibility to build and maintain business relationships and
goodwill with current and prospective clients and customers creates a special
relationship of trust and confidence between him, the Bank, and their clients
and customers.
9. Notices. All
notices, requests, consents and other communications to be given or delivered
hereunder or by reason of the provisions of this Agreement shall be in writing
and shall be deemed to have been properly served if (a) delivered
personally, (b) delivered by a recognized overnight courier service,
(c) sent by certified or registered mail, return receipt requested and
first class postage prepaid, or (d) sent by facsimile transmission followed
by a confirmation copy delivered by recognized overnight courier service the
next day. Such notices, requests, consents and other communications
shall be sent to the respective parties as follows:
(i) if
to the Executive:
Xxxxxx
X.
Xxxxxx
17132
Natures Trace
Xxxxxxx,
Xx. 00000, and
(ii) if
to the Bank:
First
Guaranty Bank
000
Xxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxxx 00000
Attn: Chief
Executive Officer.
Any
Party
hereto may designate a different address by providing written notice of such
new
address to the other Parties. Date of service of such notice shall be
(i) the date such notice is personally delivered or sent by facsimile
transmission (with issuance by the transmitting machine of a confirmation of
a
successful transmission), (ii) three business days after the date of
mailing if sent by certified or registered mail or (iii) one business day
after the date of delivery to the overnight courier if sent by overnight
courier.
10. Severability. The
Parties acknowledge that each covenant and/or provision of this Agreement shall
be enforceable independently of every other covenant and/or
provision. Furthermore, the Executive, the Bank acknowledge that, in
the event any covenant and/or provision of this Agreement is determined to
be
unenforceable for any reason, the remaining covenants and/or provisions will
remain effective, binding and enforceable.
11. Complete
Agreement; Modification. Except with respect to that certain
Confidentiality and Non-Disclosure Agreement executed concurrently herewith
and
any rights the Executive may have under the Merger Agreement, the Parties
acknowledge and agree that (a) this Agreement constitutes the complete and
entire agreement between the parties with respect to the subject matter hereof;
(b) each executed this Agreement based upon the express terms and provisions
set
forth herein; (c) in accepting employment with the Company and the Bank, the
Executive has not relied on any representations, oral or written, which are
not
set forth in this Agreement, (d) no previous agreement, either oral or written,
shall have any effect on the terms or provisions of this Agreement and (e)
all
such previous agreements with respect to the subject matter hereof, either
oral
or written, are expressly superseded and revoked by this
Agreement. The provisions hereof may not be altered, amended,
modified, waived, or discharged in any way whatsoever, except by written
agreement executed by the Parties. No waiver shall be deemed a
continuing waiver or a waiver of any subsequent breach or default, either of
a
similar or different nature, unless expressly so stated in writing.
12. Governing
Law. This Agreement shall be construed and enforced in accordance
with, and all questions concerning the construction, validity, interpretation
and performance of this Agreement shall be governed by, the laws of the State
of
Louisiana, without giving effect to provision thereof regarding conflict of
laws.
13. Prior
Agreements. The Executive represents that his service as an
employee of the Bank will not violate any
agreement: (i) he has made that prohibits him from disclosing
any information he acquired prior to his becoming employed by the Bank; or
(ii) he had made that prohibits him from accepting employment
with the Bank or that will interfere with his compliance with
the terms of this Agreement. The Executive further represents that he
has not previously, and will not in the future, disclose to the
Bank any proprietary information or trade secrets belonging to any previous
employer. The Executive acknowledges that the Bank has instructed him
not to disclose to it any proprietary information or trade secrets belonging
to
any previous employer.
14. Voluntary
Agreement. The Parties acknowledge that each has carefully read
this agreement, that each has had an opportunity to consult with his or its
attorney concerning the meaning, import and legal significance of this
Agreement, that each understands its terms, that all understandings and
agreements between the Parties relating to the subjects covered in this
Agreement are contained in it, and that each has entered into the Agreement
voluntarily and not in reliance on any promises or representations by the other
than those contained in this Agreement.
[Signature
page follows]
[Signature
Page to the Executive Employment Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above, to be effective as of the Effective Date.
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THE
EXECUTIVE:
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Xxxxxx
X. Xxxxxx
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THE
BANK:
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First
Guaranty Bank,
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a
Louisiana state bank
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By:
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Name:
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Xxxxxxx
X. Xxxxx
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Title:
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President
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LOUISIANA
ANCILLARY CONFIDENTIALITY
AND
NON-COMPETITION
AGREEMENT
THIS
CONFIDENTIALITY AND
NON-COMPETITION AGREEMENT (the “Agreement”) dated November 2, 2007 is
made by Xxxxxx Xxxxxx (“Executive”) and First Guaranty Bank (the
“Bank”).
RECITALS
A.
Executive and the Bank have entered
into an Employment Agreement dated this date (the “Employment
Agreement”), to which this Agreement is ancillary and incorporated by
reference, pursuant to which, among other things, the Bank agrees to make
certain payments to Executive; and
B. Pursuant
to the
Employment Agreement, the Bank and Executive have agreed to enter into this
Ancillary Agreement.
The
parties accordingly agree as
follows:
AGREEMENT
1. Definitions. Each
capitalized term not defined in this Agreement has the meaning assigned to
it in
the Employment Agreement.
2. Term. The
term of this Agreement begins at the Effective Time of the Mergers and continues
through the earlier of (i) December 31, 2008 or (ii) the date of termination
of
the Executive’s employment with the Bank (A) by the Bank Without Cause or (B) by
the Executive for Good Reason.
3. Confidentiality. Executive
acknowledges that in the course of his relationship with First Community
Bank he
has in the past received, and may in the future receive in the course of
his
relationship with the Bank, certain trade secrets, programs, lists of customers
and other confidential or proprietary information and knowledge concerning
the
business of the Bank and its parent, First Guaranty Bancshares, Inc.
(“Confidential Information”) which the Bank desires to
protect. Executive understands that the information is confidential,
and he agrees not to reveal the Confidential Information to anyone outside
the
Bank, other than such disclosure as authorized by the Bank or is made to
a
person transacting business with the Bank who has reasonable need for such
Confidential Information. Executive further agrees that he will at no
time use the Confidential Information for or on behalf of any person other
than
the Bank for any purpose.
4. Return
of Bank Property. The Executive acknowledges that all
memoranda, notes, records, reports, manuals, books, papers, letters, client
and
customer lists, contracts, software programs, information and records, drafts
of
instructions, guides and manuals, and other documentation (whether in draft
or
final form), and other sales or financial information and aids relating to
the
Bank’s business, and any and all other documents containing Confidential
Information furnished to the Executive by any representative of the Bank
or
otherwise acquired or developed by the Executive in connection with his
association with the Bank (collectively, “Recipient Materials”) shall at
all times be the property of the Bank (as applicable). Within
twenty-four (24) hours of the termination of his employment with the Bank,
the
Executive shall return to the Bank any Recipient Materials which are in his
possession, custody or control.
5. Unfair
Competition Restrictions; Non-Solicitation of
Customers; Non-Solicitation of
Employees. Throughout the term of this Agreement, the
Executive agrees not to do any of the following, directly or indirectly,
for
himself or for others, anywhere in the Louisiana Parishes of Tangipahoa,
Livingston, Vermillion, Xxxxxxxxx Xxxxx, Xxxxxxxxx, Caddo, Lincoln, Bossier,
and
St. Tammany (the “Restricted Area”) unless expressly authorized by the
Bank's board of directors:
(a) engage
in, or assist any person, entity, or business engaged in, the selling or
providing of products or services that would displace the products or services
that (i) the Bank is currently in the business of providing and was in the
business of providing at the time of the execution of this Agreement, or
(ii)
that Executive had involvement in, access to, or received Confidential
Information about in the course of employment. The foregoing is
expressly understood to include, without limitation, the business of the
manufacturing, selling and/or providing products or services of the same
type
offered and/or sold by the Bank.
(b) call
on, service, or solicit competing business from customers of the Bank, in
the
Restricted Area, whom he, within the previous 12 months, (i) had or made
contact
with, or (ii) had access to information and files about; or, induce or encourage
any such customer or other source of ongoing business to stop doing business
with the Bank. This provision does not prohibit Executive from
managing or providing other services or products that are not a product or
services currently offered by the Bank.
(c) call
on, solicit, encourage, or induce any other employee or officer of the Bank,
whom he had contact with, knowledge of, or association within the course
of
employment with the Bank to discontinue his or her employment, and will not
assist any other person or entity in such a solicitation.
6. Non-Disparagement. Executive
covenants and agrees he will not engage in any pattern of conduct that involves
the making or publishing of written or oral statements or remarks (including,
without limitation, the repetition or distribution of derogatory rumors,
allegations, negative reports or comments) which are disparaging, deleterious
or
damaging to the integrity, reputation or good will of the Bank or its respective
management or products and services.
7. Separability
of Covenants. The covenants contained in Section 5
constitute a series of separate but ancillary covenants, one for each applicable
parish in the State of Louisiana that is within the Restricted
Area. If in any judicial proceeding, a court shall hold that any of
the covenants set forth in Section 5 exceed the time, geographic, or
occupational limitations permitted by applicable law, Executive and the Bank
agree that such provisions shall and are hereby reformed to the maximum time,
geographic, or occupational limitations permitted by such
laws. Further, in the event a court shall hold unenforceable
any of the separate covenants deemed included herein, then such unenforceable
covenant or covenants shall be deemed eliminated from the provisions of this
Agreement for the purpose of such proceeding to the extent necessary to permit
the remaining separate covenants to be enforced in such
proceeding. Executive and the Bank further agree that the covenants
in Section 5 shall each be construed as a separate agreement independent
of any
other provisions of this Agreement, and the existence of any claim or cause
of
action by Executive against the Bank, whether predicated on this Agreement,
his
Employment Agreement or otherwise, shall not constitute a defense to the
enforcement by the Bank of any of the covenants of Section 5.
8. Consideration. Executive
acknowledges and agrees that no other consideration for Executive's covenants
in
this Agreement, other than that specifically referred to in the Employment
Agreement, has or will be paid or furnished to him by the Bank.
9. Meaning
of Certain Terms. All non-capitalized terms in Sections 3, 4
and 5 are intended to and shall have the same meanings that those terms (to
the
extent they appear therein) have in
La. R. S. 23:921.C. Subject to and
only to the extent not consistent with the foregoing sentence, the parties
understand the following phrases to have the following meanings:
(a) The
phrase “carrying on or engaging in a business similar to the business of the
Bank” includes engaging, as principal, officer, employee, agent, trustee,
advisor, consultant or through the agency of any bank, corporation, partnership,
association or agent or agency, in any business which conducts business in
competition with the Bank or being the owner of more than one percent of
the
outstanding capital stock of any corporation, or an officer, director, or
employee of any corporation or other entity, (other than the Bank or a
corporation or other entity, affiliated with the Bank) or a member or employee
or any partnership, or an owner or employee of any other business, which
conducts a business or provides a service in the Restricted Area in competition
with the Bank or any affiliated corporation or other
entity. Moreover, the term also includes (i) directly or indirectly
inducing any current customers of the Bank, or any affiliated corporation
or
other entity, to patronize any product or service business in competition
with
the Bank or any affiliated corporation or other entity, (ii) canvassing,
soliciting, or accepting any product or service business of the type conducted
by the Bank or any affiliated corporation or other entity (iii) directly
or
indirectly requesting or advising any current customers of the Bank or any
affiliated corporation or other entity, to withdraw, curtail or cancel such
customer’s business with the Bank or any affiliated corporation or other entity;
or (iv) directly or indirectly disclosing to any other person, firm, corporation
or entity, the names or addresses of any of the current customers of the
Bank or
any affiliated corporation or other entity or the rates or other terms on
which
the Bank provides services to its customers. In addition, the term
includes directly or indirectly, through any person, firm, association,
corporation or other entity with which Executive is now or may hereafter
become
associated, causing or inducing any present employee of the Bank or any
affiliated corporation or other entity to leave the employ of the Bank or
any
affiliated corporation or other entity to accept employment with Executive
or
with such person, firm, association, corporation, or other entity.
(b) The
phrase “a business similar to the business of the Bank”
means the taking of deposits and other receipt
of funds from customers, the
making of loans and other extensions of credit, maintaining checking accounts
for customers, providing investment vehicles such as certificates of deposit
to
customers and providing trust services.
(c) The
phrase “carries on a like business” includes, without limitation, actions
taken by or through a holding company, wholly-owned subsidiary or other
affiliated corporation or entity.
10. Reasonable
Restrictions. Executive represents to the Bank that the
enforcement of the restrictions contained in this Agreement would not be
unduly
burdensome to Executive and acknowledges that Executive is willing and able,
subject to the Restricted Area as defined herein, to compete in other
geographical areas not prohibited by this Agreement. The parties to
this Agreement hereby agree that the covenants contained in this Agreement
are
reasonable.
11. Entire
Agreement. Except with respect to the Employment Agreement
executed concurrently herewith, this Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter of this Agreement
and supersedes and is in full substitution for any and all prior agreements
and
understandings whether written or oral between said parties relating to the
subject matter of this Agreement. This Agreement shall not supersede
or substitute for, nor be superseded or substituted by, the Employment
Agreement, but shall have full force and effect concurrently
therewith.
12. Amendment. This
Agreement may not be amended or modified in any respect except by an agreement
in writing executed by the parties in the same manner as this Agreement except
as provided in Section 13 of this Agreement.
13. Unenforceable
Provisions. If, and to the extent that, any section,
paragraph, part, term and/or provision of this Agreement would otherwise
be
found null, void, or unenforceable under applicable law by any court of
competent jurisdiction, that section, paragraph, part, term and/or provision
shall automatically not constitute part of this Agreement. Each
section, paragraph, part, term and/or provision of this Agreement is intended
to
be and is severable from the remainder of this Agreement. If, for any
reason, any section, paragraph, part, term and/or provision herein is determined
not to constitute part of this Agreement or to be null, void, or unenforceable
under applicable law by any court of competent jurisdiction, the operation
of
the other sections, paragraphs, parts, terms and/or provisions of this Agreement
as may remain otherwise intelligible shall not be impaired or otherwise affected
and shall continue to have full force and effect and bind the parties
hereto.
14. Remedies.
(a) Executive
agrees that a breach or violation of Section 3, 4 or 5 of this Agreement
by
Executive shall entitle the Bank as a matter of right, to an injunction,
without
necessity of posting bond, issued by any court of competent jurisdiction,
restraining any further or continued breach or violation of such
provisions. Such right to an injunction shall be cumulative and in
addition, and not in lieu of, any other remedies to which the Bank may show
themselves justly entitled, including, but not limited to, specific performance
and damages. The parties specifically agree that the remedy of
damages alone is inadequate.
(b) In
the event that Executive knowingly and intentionally fails in any material
respect to perform any of his material obligations under this Agreement,
the
Bank may elect (i) to cease all payments under the Employment Agreement and
recover all payments previously made to Executive under the Employment
Agreement, (ii) obtain an injunction and/or (iii) exercise any and all other
remedies available by law.
(c) Notwithstanding
the foregoing subsection (b), Executive will have no liability or
responsibility for: (i) inadvertent disclosure or use of the Confidential
Information if (x) he uses the same degree of care in safeguarding the
Confidential Information that the Bank uses to safeguard information of like
importance and (y) upon discovery of such inadvertent disclosure or use of
such
material, Executive immediately uses his best efforts, including the
commencement of litigation, if necessary, to prevent any use thereof by the
person or persons to whom it has been disclosed and to prevent any further
incidental disclosure thereof; and, (ii) disclosure of any Confidential
Information (x) that is required by law, (y) that is made pursuant to a proper
subpoena from a court or administrative agency of competent jurisdiction
from a
court or administrative agency of competent jurisdiction or (z) that is made
upon written demand of an official involved in regulating the Executive if
before disclosure is made, Executive immediately notifies the Bank of the
requested disclosure by the most immediate means of communication available
and
confirms in writing such notification within one business day
thereafter.
15. Notice. All
notices, consents, requests, approvals or other communications in connection
with this Agreement and all legal process in regard hereto shall be in writing
and shall be deemed validly delivered, if delivered personally or sent by
certified mail, postage prepaid. Unless changed by written notice
pursuant hereto, the address of each party for the purposes hereof is as
follows:
If
to
Executive: If
to the Bank:
Xxxxxx
Xxxxxx First
Guaranty
Bank
17132
Nature’s
Trace 000 Xxxx
Xxxxxx Xxxxxx
Xxxxxxx,
XX
00000 Xxxxxxx,
XX. 00000
Attention: Xxxxxxx
X. Xxxxx, President
Notice
given by mail as set out above shall be deemed delivered only when actually
received.
16. Descriptive
Headings. The descriptive headings of the several sections
of this Agreement are inserted for convenience only and shall not control
or
affect the meaning or construction of any of the provisions hereof.
17. Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Louisiana without regard
to
conflicts of law principles.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
Executive: First
Guaranty Bank
________________________ By:________________________
Xxxxxx
Xxxxxx Xxxxxxx
X. Xxxxx, President
EXECUTIVE
EMPLOYMENT
AGREEMENT
This
EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered
into as of the 2nd day of
November,
2007, by and between First Guaranty Bank, a Louisiana state nonmember bank
(the
“Bank”), and Xxxxxxx X. Xxxxx, an individual resident of the State of
Louisiana (the “Executive”) (the signatories to this Agreement may be
referred to individually as a “Party” and jointly as the
“Parties”).
WITNESSETH:
WHEREAS, First
Guaranty Bancshares, Inc. (the sole shareholder of the Bank and First Community
Holding Company (along with its subsidiary First Community Bank, the current
employer of the Executive) have entered into an Agreement and Plan of
Reorganization, dated November 2, 2007 (“Merger Agreement”), pursuant to
which the First Community Holding Company and First Community Bank will merge
into First Guaranty Bancshares, Inc. and the Bank, respectively;
and
WHEREAS,
the Executive has considerable experience, expertise and training in management
related to banking and services offered by the Bank; and
WHEREAS,
the Bank desires for the Executive to be employed as a senior lending officer,
credit officer or other position in Senior Management of the Bank following
the
Merger, and the Executive desires to accept employment, subject to and on the
terms and conditions set forth in this Agreement; and
WHEREAS,
the Bank and the Executive have read and understood the terms and provisions
set
forth in this Agreement and have been afforded a reasonable opportunity to
review this Agreement with their respective legal counsel.
NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth
in
this Agreement, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Executive, and the Bank agree
as follows:
1. Term
of Employment. This Agreement shall become effective (the
“Effective Date”) upon the Effective Time for the Merger (as defined in
the Merger Agreement) and shall continue in effect until December 31,
2008 (the “Term of Employment”), unless terminated pursuant to Section 5 of this Agreement.
2. Duties
and Authority. During the Term of Employment, the Executive shall
serve as a senior vice-president with a role appropriate to a member of the
Bank’s senior management team. The Executive shall perform in a
professional manner the authorized and customary duties associated with his
position and such other reasonable duties and responsibilities commensurate
with
the Executive’s position as the Board of Directors or Chief Executive Officer of
the Bank may assign to the Executive from time to time.
3. Compensation
and Benefits. All payments of compensation to the Executive shall
be payable in accordance with the Bank’s ordinary payroll and other policies and
procedures, provided that the Executive’s salary, pursuant to Section 3(a) shall be payable
not
less frequently than monthly.
(a) Base
Salary. During the Term of Employment, the Bank agrees to pay the
Executive a base salary of not less than $115,500 annually (“Base
Salary”), appropriately prorated for partial months at the commencement and
end of the term of this Agreement. The Bank shall have the right to
deduct from any payment of all compensation to the Executive hereunder any
federal, state or local taxes required by law to be withheld with respect to
such
payments and any other amounts specifically authorized to be withheld or
deducted by the Executive
(b) Bonus
Programs. The Executive will be entitled to participate
in any and all bonus plans of the Bank whether such bonus plans are presently
existing or may hereafter be implemented by the Bank at levels equal to
similarly situated officers. The Executive shall also be entitled to
participate in any benefit programs which are applicable to all employees of
the
Bank or to executive employees of the Bank in accordance with the Bank policy,
and the provisions of said benefit programs. This Agreement, which
provides certain additional benefits, does not preclude the Executive’s
participation in such other plans of the Bank.
(c) Medical
Benefits; Vacation. The Executive shall be entitled to receive
employee and dependent health insurance, paid sick leave annually in
accordance with the Bank’s policy, four (4) weeks paid vacation annually and any
additional benefits provided to all the Bank employees all in accordance with
the Bank’s employment policies. All employee benefits provided to the
Executive by the Bank incident to the Executive’s employment shall be governed
by the applicable plan documents, summary plan descriptions or employment
policies, and may be modified, suspended or revoked at any time, in accordance
with the terms and provisions of the applicable documents.
(d) Reimbursement
of Expenses. During the Term of Employment, the Bank shall
promptly pay all reasonable expenses incurred by the Executive for all
reasonable travel and other business related expenses incurred by him in
performing his obligations under this Agreement in accordance with the Bank’s
travel and business expense policy, such expenses to be reviewed by the Bank’s
Board of Directors on a periodic basis.
4. Compensation
After Termination.
(a) If
the
Term of Employment is terminated (i) by the Bank for Cause (as defined
below) or due to the death or disability of the Executive, (ii) by the
Executive other than for Good Reason (as defined in Section 5(e)) or (iii) through expiration of the Term of
Employment, the Bank shall have no further obligations hereunder or otherwise
with respect to the Executive’s employment from and after the termination or
expiration date (except payment of the Executive’s Base Salary and any bonus
accrued and reimbursement of all reasonable travel and other business related
expenses incurred through the date of termination or expiration) and the Bank
shall continue to have all other rights available hereunder.
(b) If
the
Term of Employment is terminated (i) by the Bank Without Cause (as defined
in
Section 5(d)) or (ii) by the Executive for Good
Reason (as defined in Section 5(e)), the Executive
shall be entitled to receive as severance pay (in addition to the payment of
the
Base Salary and reimbursement of expenses through the date of termination),
an
amount equal to the Executive’s remaining Base Salary for the year of
termination payable within thirty (30) days of the end of the Term of
Employment. After the thirtieth (30th) day following
the
end of the Term of Employment, the outstanding severance payment shall, until
paid, bear interest per annum at the prime lending rate as published in The
Wall
Street Journal on the thirty-first (31st) day following
the
end of the Term of Employment. Except as otherwise specifically
provided herein, the Bank shall have no other obligations hereunder or otherwise
with respect to the Executive’s employment from and after the termination or
expiration date, and the Bank shall continue to have all other rights available
hereunder.
(c) No
termination under Section 5 shall terminate or
adversely affect any rights of the Executive then vested under any disability
or
other benefit program of the Bank.
5. Termination.
(a) Death. If
the Executive dies during the Term of Employment and while in the employ of
the
Bank, this Agreement shall automatically terminate and neither the Bank shall
have no further obligation to the Executive or his estate under this Agreement
(other than death benefits payable under the benefit plans referenced in Section
3(b) or Section 3(c)),
except that the Bank shall pay the Executive’s estate that portion of the
Executive’s Base Salary under Section 3(a) accrued
through the date on which the Executive’s death occurred and reimbursement of
all reasonable travel and other business related expenses incurred through
the
date on which the Executive’s death occurred. Such payment of Base
Salary and expenses to the Executive’s estate shall be made in the same manner
as other payroll obligations of the Bank.
(b) Disability.
(i) the
Bank
may terminate this Agreement if, during the Term of Employment, the Executive
shall be prevented from performing his duties hereunder by reason of becoming
disabled. For purposes of this Agreement, “disability” shall mean
that the Executive is unable to engage in any substantial gainful activity
by
reason of any medically determinable physical or mental impairment that can
be
expected to result or death or expected to last for a continuous period of
not
less than 12 months. During any period prior to termination during
which the Executive fails to perform his duties as a result of incapacity due
to
physical or mental illness, the Executive shall continue to receive his full
salary at the rate then in effect for such period until his employment
terminates pursuant to this Section 5(b), provided that
payments so made to the Executive
during such period shall be reduced by the sum of the amounts, if any, payable
to the Executive under any disability benefit plans of the Bank that were not
previously applied to reduce such payment.
(ii) In
the
event of a termination pursuant to this Section 5(b), the Bank shall
be relieved of all their
obligations under this Agreement, except that the Bank shall pay to the
Executive, or his estate in the event of his subsequent death,(i) the
Executive’s Base Salary under Section 3(a) through
the date on which such termination shall have occurred, reduced during such
period by the amount of any benefits received by the Executive under any
disability policy maintained by the Bank and any death benefits payable under
the benefit plans referenced in Section 3(b) or
Section 3(c) and (ii) reimbursement of all
reasonable travel and other business related expenses incurred through the
date
on which such termination shall have occurred. All such payments to
the Executive or his estate shall be made in the same manner as other payroll
obligations of the Bank.
(c) Discharge
for Cause. At any time during the Term of Employment, the Bank
may discharge the Executive for Cause and terminate this Agreement by delivering
to the Executive a written notice of discharge. The notice of
discharge shall set forth the reasons for the Executive’s termination for
Cause. For purposes of this Agreement, “Cause” shall be
defined as the occurrence of any of the following events:
(i) The
determination by the Board of Directors of the Bank, in the exercise of its
reasonable judgment, after consultation with its legal counsel, that the
Executive has committed an act or acts constituting (1) a felony, or other
crime (whether a felony or a misdemeanor) involving moral turpitude, dishonesty
or theft, (2) a breach of fiduciary duty, or (3) fraud;
(ii) The
determination by the Board of Directors of the Bank, in the exercise of its
reasonable judgment, that (1) the Executive has willfully failed to follow
the policies adopted by the Board of Directors, other than technical or
immaterial failures; (2) the Executive has failed to meet the duties and
responsibilities inherent in Section 2 of this
Agreement, other than technical or immaterial failures; or (3) the
Executive has engaged in such intentional or reckless actions or omissions
that
would constitute unsafe or unsound banking practices, and, in the case of any
termination pursuant to this 5(c)(ii), the
Executive fails to cure such situation, assuming that such situation is curable,
within thirty (30) days after written notice to the Executive by the Bank
specifying in reasonable detail the reason for termination by the Board of
Directors;
(iii) The
determination by the Board of Directors of the Bank, in the exercise of its
reasonable judgment, after consultation with its legal counsel, that the
Executive has committed a breach or violation of this Agreement, and fails
to
cure such breach or violation within thirty (30) days after written notice
to
the Executive by the Bank specifying in reasonable detail the
alleged breach or violation;
(iv) The
determination by the Board of Directors of the Bank, after consultation with
its
legal counsel, that the Executive has engaged in gross misconduct in the course
and scope of his employment with the Bank, which shall be defined to mean
indecency, immorality, dishonesty, unlawful harassment or discrimination, use
of
illegal drugs, or fighting; or
(v) In
the
event the Executive is prohibited from engaging in the business of banking
by
any governmental regulatory agency having jurisdiction over the
Bank.
For
purposes of this Agreement, the Executive shall not be deemed to be in breach
of
this Agreement for his failure to substantially perform his duties under this
Agreement where such failure results because the Executive has become disabled
within the meaning of Section 5(b). In such cases, termination
of the
Executive shall be governed by the provisions of Section 5(b).
(d) Discharge
Without Cause. At any time during the Term of Employment, the
Bank shall be entitled to terminate the Executive’s employment and this
Agreement “Without Cause,” by providing him with at least thirty (30)
days prior written notice of termination. Any termination of this
Agreement which is not for Cause, as defined above in Section 5(c), or which does
not
result from the death or disability of the Executive, as set forth in Sections
5(a) or 5(b),
respectively, shall
be deemed to be a termination Without Cause. In the event of a
termination Without Cause, the Bank shall become obligated to pay the Executive
the severance payment set forth in Section 4(b).
(e) Good
Reason. At any time during the Term of Employment, the Executive
may resign for Good Reason and terminate this Agreement by delivering to the
Bank a written notice of resignation for Good Reason. The notice of
resignation shall set forth the reasons for the Executive’s resignation for Good
Reason. For purposes of this Agreement, “Good Reason” shall be
defined as the occurrence of any of the following events:
(i) the
assignment to Executive of any duties materially and adversely inconsistent
with
Executive’s status as a senior vice-president and member of the Bank’s senior
management team or a material and adverse alteration in the nature of
Executive’s authority, duties or responsibilities;
(ii) the
reduction by the Bank of Executive’s Base Salary;
(iii) the
requirement that Executive be based at any office or location other than an
office of the Bank in Hammond, Louisiana; or
(iv) the
failure of any successor to the Bank to assume this Agreement.
6. Resignation. The
Executive shall be entitled to terminate this Agreement by providing the Bank
with a written notice of resignation at least thirty (30) days prior to the
intended resignation date, upon which he shall be entitled to receive any Base
Salary which has been earned by him through the effective date of such
resignation.
7. Arbitration. Any
dispute or claim arising hereunder shall be settled by
arbitration. Any party may commence arbitration by sending a written
notice or arbitration to the other party. The notice will state the
dispute with particularity. The parties shall mutually agree to the
selection of a qualified arbitrator. If they do not agree with
fifteen (15) days, then one party may request that a then presiding judge in
Tangipahoa Parish, Louisiana select an attorney to become the arbitrator in
this
matter. The arbitration hearing shall be commenced thirty (30) days
following the date of delivery of notice of arbitration by one party to the
other, under the terms of the Federal Arbitration Act. The
arbitration shall be conducted in Tangipahoa Parish, Louisiana in accordance
with the Federal Arbitration Act, and each party shall retain the right to
cross-examine the opposing party’s witnesses, either through legal counsel,
expert witnesses or both. As part of his or her decision, the
arbitrator may allocate the cost of arbitration, including fees of attorneys
and
experts, as he or she deems fair and equitable in light of all relevant
circumstances. Judgment on the award rendered by the arbitrator may
be entered in any court of competent jurisdiction.
8. Goodwill. The
Executive acknowledges that the Bank will, over a period of time, develop,
significant relationships and goodwill between itself and its clients and
customers by providing superior products and services. The Executive
further acknowledges that these relationships and this goodwill are a valuable
asset belonging solely to the Bank. The Executive understands that
the Bank agrees to compensate him, as well as to reimburse him for reasonable
and necessary business expenses incurred, while he builds and/or maintains
business relationships and goodwill with the Bank’s current and prospective
clients and customers on a personal level. The Executive acknowledges
that the responsibility to build and maintain business relationships and
goodwill with current and prospective clients and customers creates a special
relationship of trust and confidence between him, the Bank, and their clients
and customers.
9. Notices. All
notices, requests, consents and other communications to be given or delivered
hereunder or by reason of the provisions of this Agreement shall be in writing
and shall be deemed to have been properly served if (a) delivered
personally, (b) delivered by a recognized overnight courier service,
(c) sent by certified or registered mail, return receipt requested and
first class postage prepaid, or (d) sent by facsimile transmission followed
by a confirmation copy delivered by recognized overnight courier service the
next day. Such notices, requests, consents and other communications
shall be sent to the respective parties as follows:
(i) if
to the Executive:
Xxxxxxx
X. Xxxxx
00000
Xxx
Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000, and
(ii) if
to the Bank:
First
Guaranty Bank
000
Xxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxxx 00000
Attn: Chief
Executive Officer.
Any
Party
hereto may designate a different address by providing written notice of such
new
address to the other Parties. Date of service of such notice shall be
(i) the date such notice is personally delivered or sent by facsimile
transmission (with issuance by the transmitting machine of a confirmation of
a
successful transmission), (ii) three business days after the date of
mailing if sent by certified or registered mail or (iii) one business day
after the date of delivery to the overnight courier if sent by overnight
courier.
10. Severability. The
Parties acknowledge that each covenant and/or provision of this Agreement shall
be enforceable independently of every other covenant and/or
provision. Furthermore, the Executive, the Bank acknowledge that, in
the event any covenant and/or provision of this Agreement is determined to
be
unenforceable for any reason, the remaining covenants and/or provisions will
remain effective, binding and enforceable.
11. Complete
Agreement; Modification. Except with respect to that certain
Confidentiality and Non-Disclosure Agreement executed concurrently herewith
and
any rights the Executive may have under the Merger Agreement, the Parties
acknowledge and agree that (a) this Agreement constitutes the complete and
entire agreement between the parties with respect to the subject matter hereof;
(b) each executed this Agreement based upon the express terms and provisions
set
forth herein; (c) in accepting employment with the Company and the Bank, the
Executive has not relied on any representations, oral or written, which are
not
set forth in this Agreement, (d) no previous agreement, either oral or written,
shall have any effect on the terms or provisions of this Agreement and (e)
all
such previous agreements with respect to the subject matter hereof, either
oral
or written, are expressly superseded and revoked by this
Agreement. The provisions hereof may not be altered, amended,
modified, waived, or discharged in any way whatsoever, except by written
agreement executed by the Parties. No waiver shall be deemed a
continuing waiver or a waiver of any subsequent breach or default, either of
a
similar or different nature, unless expressly so stated in writing.
12. Governing
Law. This Agreement shall be construed and enforced in accordance
with, and all questions concerning the construction, validity, interpretation
and performance of this Agreement shall be governed by, the laws of the State
of
Louisiana, without giving effect to provision thereof regarding conflict of
laws.
13. Prior
Agreements. The Executive represents that his service as an
employee of the Bank will not violate any
agreement: (i) he has made that prohibits him from disclosing
any information he acquired prior to his becoming employed by the Bank; or
(ii) he had made that prohibits him from accepting employment
with the Bank or that will interfere with his compliance with
the terms of this Agreement. The Executive further represents that he
has not previously, and will not in the future, disclose to the
Bank any proprietary information or trade secrets belonging to any previous
employer. The Executive acknowledges that the Bank has instructed him
not to disclose to it any proprietary information or trade secrets belonging
to
any previous employer.
14. Voluntary
Agreement. The Parties acknowledge that each has carefully read
this agreement, that each has had an opportunity to consult with his or its
attorney concerning the meaning, import and legal significance of this
Agreement, that each understands its terms, that all understandings and
agreements between the Parties relating to the subjects covered in this
Agreement are contained in it, and that each has entered into the Agreement
voluntarily and not in reliance on any promises or representations by the other
than those contained in this Agreement.
[Signature
page follows]
[Signature
Page to the Executive Employment Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above, to be effective as of the Effective Date.
|
THE
EXECUTIVE:
|
||
|
Xxxxxxx
X. Xxxxx
|
||
|
THE
BANK:
|
First
Guaranty Bank,
|
|
|
a
Louisiana state bank
|
||
|
By:
|
||
|
Name:
|
Xxxxxx
X. Xxxxx
|
|
|
Title:
|
President
|
|
NON-COMPETITION
AGREEMENT
THIS
CONFIDENTIALITY AND
NON-COMPETITION AGREEMENT (the “Agreement”) dated November 2, 2007 is
made by Xxxxxxx Xxxxx (“Executive”) and First Guaranty Bank (the
“Bank”).
RECITALS
A.
Executive and the Bank have entered
into an Employment Agreement dated this date (the “Employment
Agreement”), to which this Agreement is ancillary and incorporated by
reference, pursuant to which, among other things, the Bank agrees to make
certain payments to Executive; and
B. Pursuant
to the
Employment Agreement, the Bank and Executive have agreed to enter into this
Ancillary Agreement.
The
parties accordingly agree as
follows:
AGREEMENT
1. Definitions. Each
capitalized term not defined in this Agreement has the meaning assigned to
it in
the Employment Agreement.
2. Term. The
term of this Agreement begins at the Effective Time of the Mergers and continues
through the earlier of (i) December 31, 2008 or (ii) the date of termination
of
the Executive’s employment with the Bank (A) by the Bank Without Cause or (B) by
the Executive for Good Reason.
3. Confidentiality. Executive
acknowledges that in the course of his relationship with First Community
Bank he
has in the past received, and may in the future receive in the course of
his
relationship with the Bank, certain trade secrets, programs, lists of customers
and other confidential or proprietary information and knowledge concerning
the
business of the Bank and its parent, First Guaranty Bancshares, Inc.
(“Confidential Information”) which the Bank desires to
protect. Executive understands that the information is confidential,
and he agrees not to reveal the Confidential Information to anyone outside
the
Bank, other than such disclosure as authorized by the Bank or is made to
a
person transacting business with the Bank who has reasonable need for such
Confidential Information. Executive further agrees that he will at no
time use the Confidential Information for or on behalf of any person other
than
the Bank for any purpose.
4. Return
of Bank Property. The Executive acknowledges that all
memoranda, notes, records, reports, manuals, books, papers, letters, client
and
customer lists, contracts, software programs, information and records, drafts
of
instructions, guides and manuals, and other documentation (whether in draft
or
final form), and other sales or financial information and aids relating to
the
Bank’s business, and any and all other documents containing Confidential
Information furnished to the Executive by any representative of the Bank
or
otherwise acquired or developed by the Executive in connection with his
association with the Bank (collectively, “Recipient Materials”) shall at
all times be the property of the Bank (as applicable). Within
twenty-four (24) hours of the termination of his employment with the Bank,
the
Executive shall return to the Bank any Recipient Materials which are in his
possession, custody or control.
5. Unfair
Competition Restrictions; Non-Solicitation of
Customers; Non-Solicitation of
Employees. Throughout the term of this Agreement, the
Executive agrees not to do any of the following, directly or indirectly,
for
himself or for others, anywhere in the Louisiana Parishes of Tangipahoa,
Livingston, Vermillion, Xxxxxxxxx Xxxxx, Xxxxxxxxx, Caddo, Lincoln, Bossier,
and
St. Tammany (the “Restricted Area”) unless expressly authorized by the
Bank's board of directors:
(a) engage
in, or assist any person, entity, or business engaged in, the selling or
providing of products or services that would displace the products or services
that (i) the Bank is currently in the business of providing and was in the
business of providing at the time of the execution of this Agreement, or
(ii)
that Executive had involvement in, access to, or received Confidential
Information about in the course of employment. The foregoing is
expressly understood to include, without limitation, the business of the
manufacturing, selling and/or providing products or services of the same
type
offered and/or sold by the Bank.
(b) call
on, service, or solicit competing business from customers of the Bank, in
the
Restricted Area, whom he, within the previous 12 months, (i) had or made
contact
with, or (ii) had access to information and files about; or, induce or encourage
any such customer or other source of ongoing business to stop doing business
with the Bank. This provision does not prohibit Executive from
managing or providing other services or products that are not a product or
services currently offered by the Bank.
(c) call
on, solicit, encourage, or induce any other employee or officer of the Bank,
whom he had contact with, knowledge of, or association within the course
of
employment with the Bank to discontinue his or her employment, and will not
assist any other person or entity in such a solicitation.
6. Non-Disparagement. Executive
covenants and agrees he will not engage in any pattern of conduct that involves
the making or publishing of written or oral statements or remarks (including,
without limitation, the repetition or distribution of derogatory rumors,
allegations, negative reports or comments) which are disparaging, deleterious
or
damaging to the integrity, reputation or good will of the Bank or its respective
management or products and services.
7. Separability
of Covenants. The covenants contained in Section 5
constitute a series of separate but ancillary covenants, one for each applicable
parish in the State of Louisiana that is within the Restricted
Area. If in any judicial proceeding, a court shall hold that any of
the covenants set forth in Section 5 exceed the time, geographic, or
occupational limitations permitted by applicable law, Executive and the Bank
agree that such provisions shall and are hereby reformed to the maximum time,
geographic, or occupational limitations permitted by such
laws. Further, in the event a court shall hold unenforceable
any of the separate covenants deemed included herein, then such unenforceable
covenant or covenants shall be deemed eliminated from the provisions of this
Agreement for the purpose of such proceeding to the extent necessary to permit
the remaining separate covenants to be enforced in such
proceeding. Executive and the Bank further agree that the covenants
in Section 5 shall each be construed as a separate agreement independent
of any
other provisions of this Agreement, and the existence of any claim or cause
of
action by Executive against the Bank, whether predicated on this Agreement, his
Employment Agreement or otherwise, shall not constitute a defense to the
enforcement by the Bank of any of the covenants of Section 5.
8. Consideration. Executive
acknowledges and agrees that no other consideration for Executive's covenants
in
this Agreement, other than that specifically referred to in the Employment
Agreement, has or will be paid or furnished to him by the Bank.
9. Meaning
of Certain Terms. All non-capitalized terms in Sections 3, 4
and 5 are intended to and shall have the same meanings that those terms (to
the
extent they appear therein) have in
La. R. S. 23:921.C. Subject to and
only to the extent not consistent with the foregoing sentence, the parties
understand the following phrases to have the following meanings:
(a) The
phrase “carrying on or engaging in a business similar to the business of the
Bank” includes engaging, as principal, officer, employee, agent, trustee,
advisor, consultant or through the agency of any bank, corporation, partnership,
association or agent or agency, in any business which conducts business in
competition with the Bank or being the owner of more than one percent of
the
outstanding capital stock of any corporation, or an officer, director, or
employee of any corporation or other entity, (other than the Bank or a
corporation or other entity, affiliated with the Bank) or a member or employee
or any partnership, or an owner or employee of any other business, which
conducts a business or provides a service in the Restricted Area in competition
with the Bank or any affiliated corporation or other
entity. Moreover, the term also includes (i) directly or indirectly
inducing any current customers of the Bank, or any affiliated corporation
or
other entity, to patronize any product or service business in competition
with
the Bank or any affiliated corporation or other entity, (ii) canvassing,
soliciting, or accepting any product or service business of the type conducted
by the Bank or any affiliated corporation or other entity (iii) directly
or
indirectly requesting or advising any current customers of the Bank or any
affiliated corporation or other entity, to withdraw, curtail or cancel such
customer’s business with the Bank or any affiliated corporation or other entity;
or (iv) directly or indirectly disclosing to any other person, firm, corporation
or entity, the names or addresses of any of the current customers of the
Bank or
any affiliated corporation or other entity or the rates or other terms on
which
the Bank provides services to its customers. In addition, the term
includes directly or indirectly, through any person, firm, association,
corporation or other entity with which Executive is now or may hereafter
become
associated, causing or inducing any present employee of the Bank or any
affiliated corporation or other entity to leave the employ of the Bank or
any
affiliated corporation or other entity to accept employment with Executive
or
with such person, firm, association, corporation, or other entity.
(b) The
phrase “a business similar to the business of the Bank”
means the taking of deposits and other receipt
of funds from customers, the
making of loans and other extensions of credit, maintaining checking accounts
for customers, providing investment vehicles such as certificates of deposit
to
customers and providing trust services.
(c) The
phrase “carries on a like business” includes, without limitation, actions
taken by or through a holding company, wholly-owned subsidiary or other
affiliated corporation or entity.
10. Reasonable
Restrictions. Executive represents to the Bank that the
enforcement of the restrictions contained in this Agreement would not be
unduly
burdensome to Executive and acknowledges that Executive is willing and able,
subject to the Restricted Area as defined herein, to compete in other
geographical areas not prohibited by this Agreement. The parties to
this Agreement hereby agree that the covenants contained in this Agreement
are
reasonable.
11. Entire
Agreement. Except with respect to the Employment Agreement
executed concurrently herewith, this Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter of this Agreement
and supersedes and is in full substitution for any and all prior agreements
and
understandings whether written or oral between said parties relating to the
subject matter of this Agreement. This Agreement shall not supersede
or substitute for, nor be superseded or substituted by, the Employment
Agreement, but shall have full force and effect concurrently
therewith.
12. Amendment. This
Agreement may not be amended or modified in any respect except by an agreement
in writing executed by the parties in the same manner as this Agreement except
as provided in Section 13 of this Agreement.
13. Unenforceable
Provisions. If, and to the extent that, any section,
paragraph, part, term and/or provision of this Agreement would otherwise
be
found null, void, or unenforceable under applicable law by any court of
competent jurisdiction, that section, paragraph, part, term and/or provision
shall automatically not constitute part of this Agreement. Each
section, paragraph, part, term and/or provision of this Agreement is intended
to
be and is severable from the remainder of this Agreement. If, for any
reason, any section, paragraph, part, term and/or provision herein is determined
not to constitute part of this Agreement or to be null, void, or unenforceable
under applicable law by any court of competent jurisdiction, the operation
of
the other sections, paragraphs, parts, terms and/or provisions of this Agreement
as may remain otherwise intelligible shall not be impaired or otherwise affected
and shall continue to have full force and effect and bind the parties
hereto.
14. Remedies.
(a) Executive
agrees that a breach or violation of Section 3, 4 or 5 of this Agreement
by
Executive shall entitle the Bank as a matter of right, to an injunction,
without
necessity of posting bond, issued by any court of competent jurisdiction,
restraining any further or continued breach or violation of such
provisions. Such right to an injunction shall be cumulative and in
addition, and not in lieu of, any other remedies to which the Bank may show
themselves justly entitled, including, but not limited to, specific performance
and damages. The parties specifically agree that the remedy of
damages alone is inadequate.
(b) In
the event that Executive knowingly and intentionally fails in any material
respect to perform any of his material obligations under this Agreement,
the
Bank may elect (i) to cease all payments under the Employment Agreement and
recover all payments previously made to Executive under the Employment
Agreement, (ii) obtain an injunction and/or (iii) exercise any and all other
remedies available by law.
(c) Notwithstanding
the foregoing subsection (b), Executive will have no liability or
responsibility for: (i) inadvertent disclosure or use of the Confidential
Information if (x) he uses the same degree of care in safeguarding the
Confidential Information that the Bank uses to safeguard information of like
importance and (y) upon discovery of such inadvertent disclosure or use of
such
material, Executive immediately uses his best efforts, including the
commencement of litigation, if necessary, to prevent any use thereof by the
person or persons to whom it has been disclosed and to prevent any further
incidental disclosure thereof; and, (ii) disclosure of any Confidential
Information (x) that is required by law, (y) that is made pursuant to a proper
subpoena from a court or administrative agency of competent jurisdiction
from a
court or administrative agency of competent jurisdiction or (z) that is made
upon written demand of an official involved in regulating the Executive if
before disclosure is made, Executive immediately notifies the Bank of the
requested disclosure by the most immediate means of communication available
and
confirms in writing such notification within one business day
thereafter.
15. Notice. All
notices, consents, requests, approvals or other communications in connection
with this Agreement and all legal process in regard hereto shall be in writing
and shall be deemed validly delivered, if delivered personally or sent by
certified mail, postage prepaid. Unless changed by written notice
pursuant hereto, the address of each party for the purposes hereof is as
follows:
If
to
Executive: If
to the Bank:
Xxxxxxx
Xxxxx
First Guaranty Bank
41464
Rue
Maison
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx,
XX
00000 Xxxxxxx,
XX. 00000
Attention: Xxxxxxx X. Xxxxx, President
Notice
given by mail as set out above shall be deemed delivered only when actually
received.
16. Descriptive
Headings. The descriptive headings of the several sections
of this Agreement are inserted for convenience only and shall not control
or
affect the meaning or construction of any of the provisions hereof.
17. Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Louisiana without regard
to
conflicts of law principles.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
Executive: First
Guaranty Bank
________________________ By:________________________
Xxxxxxx
Xxxxx Xxxxxxx
X. Xxxxx, President
