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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
BY AND BETWEEN
FAYETTE COUNTY BANK
AND
XXXXXXX X. XXXXXXXXX
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TABLE OF CONTENTS
Section 1. Definitions...........................................................................................1
Section 2. Employment............................................................................................4
Section 3. Titles................................................................................................4
Section 4. Compensation and Benefits; Disability.................................................................4
Section 5. Expenses..............................................................................................5
Section 6. Termination...........................................................................................5
Section 7. Confidential Information and Related Matters..........................................................9
Section 8. Notices..............................................................................................11
Section 9. Miscellaneous........................................................................................12
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") dated as of
February 21, 1996, by and between Fayette County Bank, a Georgia banking
corporation (the "Employer"), and Xxxxxxx X. Xxxxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Employer presently employs the Executive as the
Senior Vice President and Senior Credit Officer of the Employer pursuant to the
terms of this Agreement; and
WHEREAS, the Executive desires to be employed by the Employer
pursuant to this Agreement; and
WHEREAS, both parties hereto acknowledge that the services to
be performed by the Executive under this Agreement shall require a high degree
of diligence, creativity and responsiveness appropriate to the Employer's
business intentions;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
Employer and the Executive hereby agree as follows:
Section 1. DefinitionsSection 1. Definitions. For the purpose
of this Agreement, the terms used as headings in this Section 1, and
parenthetically defined elsewhere in this Agreement, shall have the indicated
meanings.
1.1 Adequate Justification. The occurrence after a Change in
Control of any of the following events or conditions: (i) a material failure of
the Employer to comply with the terms of this Agreement; (ii) any relocation of
the Executive outside the Territory, as amended from time to time, that is not
approved by the Board of Directors; or (iii) other than as provided for herein,
any substantial diminution in the Executive's authority or the Executive's
responsibilities that is not approved by the Board of Directors.
1.2 Affiliate. Any business entity controlled by, controlling
or under common control with the Employer.
1.3 Board of Directors. The Board of Directors of the
Employer.
1.4 Business. The operation of a depository financial
institution, including, without limitation, the solicitation and acceptance of
deposits of money and commercial paper, the solicitation and funding of loans
and the provision of other banking services, and any other related business
engaged in by the Employer or any of its Affiliates as of the date of
termination.
1.5 Cause. As defined in Section 6.3(a)(iii).
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1.6 CEO. Chief Executive Officer of the Employer.
1.7 Change in Control. The occurrence during the Term of any
of the following events, unless such event is as a result of a Non-Control
Transaction:
(a)(_) The individuals who, as of the date of this
Agreement, are members of the Board of Directors of
the Employer (the "Incumbent Board") cease for any
reason to constitute at least two-thirds of the Board
of Directors of the Employer; provided, however, that
if the election, or nomination for election by the
Employer's shareholders, of any new director was
approved in advance by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for
purposes of this Agreement, be considered as a member
of the Incumbent Board; provided, further, that no
individual shall be considered a member of the
Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11
promulgated under the Securities Exchange Act of 1934
(the "Exchange Act"), or other actual or threatened
solicitation of proxies or consents by or on behalf
of any person other than the Board of Directors of
the Employer (a "Proxy Contest"), including by reason
of any agreement intended to avoid or settle any
Election Contest or Proxy Contest.
(b)(_) An acquisition (other than directly from the
Employer) of any voting securities of the Employer
(the "Voting Securities") by any "Person" (as the
term "person" is used for purposes of Section 13(d)
or 14(d) of the Exchange Act) immediately after which
such Person has "Beneficial Ownership" (within the
meaning of Rule 13d-3 promulgated under the Exchange
Act) of 20% or more of the combined voting power of
the Employer's then outstanding Voting Securities;
provided, however, that in determining whether a
Change in Control has occurred, Voting Securities
which are acquired in a Non-Control Acquisition shall
not constitute an acquisition which would cause a
Change in Control.
(c)(_) Approval by the shareholders of the Employer of: (i)
a merger, consolidation, or reorganization involving
the Employer; (ii) a complete liquidation or
dissolution of the Employer; or (iii) an agreement
for the sale or other disposition of all or
substantially all of the assets of the Employer to
any Person (other than a transfer to a Subsidiary).
(d) A notice of an application is filed with the Federal
Reserve Board (the "FRB") pursuant to Regulation "Y"
of the FRB under the Change in Bank Control Act or
the Bank Holding Company Act or otherwise for
permission to acquire control of the Employer or any
of its banking subsidiaries.
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1.8 COBRA. The Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended.
1.9 Competing Business. Any business that, in whole or in
part, is the same or substantially the same as the Business.
1.10 Confidential Business Information. Any non-public
information of a competitively sensitive or personal nature, other than Trade
Secrets, acquired by the Executive, directly or indirectly, in connection with
the Executive's employment (including his employment with the Employer prior to
the date of this Agreement), including (without limitation) oral and written
information concerning the Employer or its Affiliates relating to financial
position and results of operations (revenues, margins, assets, net income,
etc.), annual and long-range business plans, marketing plans and methods,
account invoices, oral or written customer information, and personnel
information. Confidential Business Information also includes information
recorded in manuals, memoranda, projections, minutes, plans, computer programs,
and records, whether or not legended or otherwise identified by the Employer and
its Affiliates as Confidential Business Information, as well as information
which is the subject of meetings and discussions and not so recorded; provided,
however, that Confidential Business Information shall not include information
that is generally available to the public, other than as a result of disclosure,
directly or indirectly, by the Executive, or was available to the Executive on a
non-confidential basis prior to its disclosure to the Executive.
1.11 Non-Control Acquisition. An acquisition by (a) an
employee benefit plan (or a trust forming a part thereof) maintained by (i) the
Employer or (ii) any corporation or other Person of which a majority of its
voting power or its equity securities or equity interest is owned directly or
indirectly by the Employer (a "Subsidiary"); (b) the Employer or any Subsidiary;
or (c) any person in connection with a Non-Control Transaction.
1.12 Non-Control Transaction. A transaction described in
clauses (a) and (b) below:
(a) the shareholders of the Employer, immediately before
such merger, consolidation or reorganization, own,
directly or indirectly, immediately following such
merger, consolidation or reorganization, at least 50%
of the combined voting power of the outstanding
voting securities of the corporation resulting from
such merger, consolidation or reorganization (the
"Surviving Corporation") in substantially the same
proportion as their ownership of the Voting
Securities immediately before such merger,
consolidation or reorganization; and
(b) immediately following such merger, consolidation or
reorganization, the number of directors on the board
of directors of the Surviving Corporation who were
members of the Incumbent Board shall at least equal
the number of directors who were affiliated with or
appointed by the other party to the merger,
consolidation or reorganization.
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1.13 Term. As defined in Section 6.1.
1.14 Territory. A radius of ten miles from (i) the main office
of the Employer or (ii) any branch office of the Employer.
1.15 Trade Secret. Any information, including, but not limited
to, technical or non-technical data, a formula, a pattern, a compilation, a
program, a plan, a device, a method, a technique, a drawing, a process,
financial data, financial plans, product plans or a list 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.
Section 2. Employment. (a) The Employer hereby employs the
Executive to serve in the positions described in Section 3 below during the term
of this Agreement and to perform those acts and duties for, and to furnish
services to, the Employer and its Affiliates as may be designated from time to
time by the Board of Directors. The Executive hereby accepts such employment.
The Executive will have such executive or managerial duties as the Board of
Directors shall direct from time to time, as specified in the Employer's Bylaws,
as amended from time to time, or as the Board of Directors shall direct from
time to time. In the performance of his duties hereunder, the Executive shall
comply with all laws, rules and regulations which may be applicable to the
Employer from time to time.
(b) The Executive shall use his best and most
diligent efforts to promote the interests of the Employer and its Affiliates
and shall devote his full business time and attention to his employment under
this Agreement. The Executive may devote a reasonable amount of time to serve
as a director or advisor to charitable and community activities and to managing
his personal investments; provided, however, that such activities and
investments do not materially interfere with the performance of his duties
hereunder and are not in conflict or competitive with, or adverse to, the
interests of the Employer and its Affiliates.
Section 3. Titles. The Executive shall hold the title of
Senior Vice President and Senior Credit Officer of the Employer.
Section 4. Compensation and Benefits; Disability
4.1 Compensation. The Employer shall pay the Executive a
salary at a rate of not less than $65,000 per annum in accordance with the
salary payment practices of the Employer. The Board of Directors shall
determine, in its sole discretion, with the Executive abstaining from
participating in the consideration of and vote on the matter, whether a salary
increase for the Executive is merited based upon annual performance and a cost
of living review.
4.2 Bonus. The Executive shall be eligible to receive a cash
bonus in an amount determined by the Board of Directors, with the Executive
abstaining from participating in
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the consideration of and vote on the matter, based on such intangible criteria
as the Board of Directors shall establish.
4.3 Other Benefits. During the term of this Agreement, the
Employer shall provide the Executive with all life insurance, dental and health
insurance, disability insurance, retirement benefits, and such other benefits or
plans as are generally afforded other personnel of the Employer. In addition,
the Employer shall pay the Executive's dues pertaining to the Flat Creek Club in
Peachtree City, Georgia.
4.4 Vacation. The Executive may take four weeks paid
vacation per year through the third year of this Agreement.
Section 5. ExpensesSection 5. Expenses. Pursuant to the
Employer's customary policies in force at the time of payment, the Executive
shall be promptly reimbursed, against presentation of vouchers or receipts
therefor, for all authorized expenses properly and reasonably incurred by him on
behalf of the Employer or its Affiliates in the performance of his duties
hereunder.
Section 6. TerminationSection 6. Termination.
6.1 Term. The Executive's employment hereunder shall be
for a term commencing on the date hereof and ending on the third anniversary
of this Agreement (the "Term"), unless further extended or sooner terminated as
provided below.
6.2 Extension of Term. On the last day of this Agreement,
the term of the Executive's employment shall be automatically extended for one
additional three-year term without further action by the parties unless, prior
to the last day of this Agreement, either party shall serve 30 days written
notice upon the other of its intention that this Agreement shall not be so
extended; provided, that if Employer does not renew this Agreement for an
additional three-year term pursuant to this Section 6.2, the Employer shall pay
the Executive severance compensation in an amount equal to 100% of his then
current monthly base salary each month for a period ending six months from the
last day of this Agreement.
6.3 Termination. (a) Notwithstanding the provisions of
Section 6.1 or Section 6.2, Executive's employment hereunder shall terminate
upon the occurrence of any of the following events:
(i) The death of the Executive, in which event such
employment shall terminate automatically;
(ii) The disability of the Executive, which renders him
unable to perform the essential functions of his job,
and for which reasonable accommodation is unavailable.
For purposes of this Agreement, a "disability" is
defined as a physical or mental impairment that
substantially limits one or more major life activities;
and a "reasonable accommodation" is one that does not
impose an undue hardship on the Employer. The Executive
acknowledges
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that the position of CEO and President is one that
requires the full time and energy of the Executive
and that any accommodation based on part-time
employment would pose an undue hardship on the
Employer; or
(iii) Upon the determination of Cause for termination, in
which event such employment may be terminated by
written notice at the election of the Employer. For
purposes of this Agreement, "Cause" shall consist of
any of (A) the commission by the Executive of a
willful act (including, without limitation, a
dishonest or fraudulent act) or a grossly negligent
act, or the willful or grossly negligent omission to
act by the Executive, which is intended to cause,
causes or is reasonably likely to cause material
harm to the Employer (including harm to its business
reputation), (B) the indictment of the Executive for
the commission or perpetration by the Executive of
any felony or any crime involving dishonesty, moral
turpitude or fraud, (C) the material breach by the
Executive of this Agreement that, if susceptible of
cure, remains uncured ten days following written
notice to the Executive of such breach, (D) the
receipt of any form of notice, written or otherwise,
that any regulatory agency having jurisdiction over
the Employer intends to institute any form of formal
or informal (e.g., a memorandum of understanding
which relates to the Executive's performance)
regulatory action against the Executive or the
Employer (provided, that the Board of Directors
determines in good faith, with the Executive
abstaining from participating in the consideration
of and vote on the matter, that the subject matter
of such action involves acts or omissions by or
under the supervision of the Executive or that
termination of the Executive would materially
advance the Employer's compliance with the purpose
of the action or would materially assist the
Employer in avoiding or reducing the restrictions or
adverse effects to the Employer related to the
regulatory action); (E) the Executive exhibits a
standard of behavior within the scope of his
employment that is materially disruptive to the
orderly conduct of the Employer's business
operations (including, without limitation, substance
abuse or sexual misconduct) to a level which, in the
Board of Directors' good faith and reasonable
judgment, with the Executive abstaining from
participating in the consideration of and vote on
the matter, is materially detrimental to the
Employer's best interest, that, if susceptible of
cure remains uncured ten days following written
notice to the Executive of such specific
inappropriate behavior; or (F) as provided in
Section 2(b), the failure of the Executive to devote
his full business time and attention to his
employment under this Agreement that, if susceptible
of cure, remains uncured 30 days following written
notice to the Executive of such failure.
(b) If the Executive's employment is terminated by the
Employer pursuant to Section 6.3(a)(i), the Executive's estate shall receive any
sums due him as base salary and/or reimbursement of expenses through the end of
the month during which death occurred, plus a pro
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rata share of any bonus under Section 4.2 if otherwise payable with respect to
the fiscal year during which the Executive died which was earned as of the date
of the Executive's death as a result of the Employer achieving the goals
determined by the Board of Directors.
(c) In the event of the physical or mental incapacity of the
Executive which, if continued for a sufficient period, would provide the
Employer with grounds for termination of the Executive's employment under
Section 6.3(a)(ii), the Employer shall continue to pay the Executive his full
base salary at the rate then in effect under Section 4.1 and all prerequisites
and other benefits (other than any bonus under Section 4.2) until the Executive
becomes eligible for benefits under any long-term disability plan or insurance
program maintained by the Employer, after which the Executive shall be entitled
to receive 50% of his base salary then in effect under Section 4.1, and all
prerequisites and other benefits (other than any bonus under Section 4.2), until
the earlier of (i) the Executive's death; (ii) the Executive's return to full
employment status with the Employer; or (iii) the second anniversary of such
incapacity. Furthermore, the Executive shall receive his pro rata share of any
bonus under Section 4.2 which was earned on the date the Executive became
disabled as a result of the Employer achieving the goals determined by the Board
of Directors. Nothing in this Section 6.3(c) shall preclude the Employer from
terminating the Executive's employment under Section 6.3(a)(iii).
(d) If the Executive's employment is terminated for Cause
pursuant to Section 6.3(a)(iii), or if the Executive resigns without Adequate
Justification, the Executive shall receive any sums due him as base salary
and/or reimbursement of expenses through the date of such termination. Adequate
Justification shall only be deemed to have occurred if not cured by the Employer
within ten days following receipt of written notice from the Executive which
specifies with particularity the events which constitute such Adequate
Justification.
(e) If Employer terminates the Executive other than pursuant
to clauses (i), (ii) or (iii) of Section 6.3(a), the Employer shall pay to the
Executive severance compensation in an amount equal to 100% of his then current
monthly base salary each month for a period ending on the earlier of (if the
then applicable Term), the date which is six months from the date of
termination, or the date his total monthly compensation from his new position
equals his monthly base salary under this Agreement at the date of termination.
If and to the extent that the Executive's compensation in his new employment
position is less than his current base salary from the Employer, then the
Executive shall be entitled to a supplement payable monthly in an amount equal
to the difference between the Executive's monthly base salary under this
Agreement at the date of termination of employment and his total monthly
compensation in his new position (as determined by dividing the Executive's
annual compensation from the Executive's new position by 12). If the Employer
terminates the Executive other than pursuant to clauses (i), (ii) or (iii) of
Section 6.3(a) the Employer shall also pay the Executive his pro rata share of
any bonus pursuant to Section 4.2 which was earned as of the date of his
termination by achievement of the goals determined by the Board of Directors.
(f) After a Change in Control, the Executive may terminate
his employment hereunder for any reason upon delivery of a Notice of Termination
to the Employer within a 90-day period beginning on the 30th day after any
occurrence of a Change in Control or within a 90-
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day period beginning on the one year anniversary of the occurrence of a Change
in Control. If the Executive's employment with the Employer is terminated
pursuant to this Section 6.3(f), in addition to other rights and remedies
available in law or equity, the Executive shall be entitled to the following:
(i) the Employer shall pay the Executive in cash within 15 days of the such
termination date any sums due him as base salary and/or reimbursement of
expenses through the date of such termination plus a pro rata share of any bonus
under Section 4.2 if otherwise payable with respect to the fiscal year during
such termination which was earned as of the date of termination as a result of
the Employer achieving the goals determined by the Board of Directors; (ii) the
Employer shall pay the Executive in cash within 15 days of such termination date
one lump sum payment in an amount equal to two times the Executive's then
current annual base salary; and (iii) the restrictions on any outstanding
incentive awards (including stock options) granted to the Executive under any
incentive plan or arrangement shall lapse and such incentive award shall become
100% vested, all stock options and stock appreciation rights granted to the
Executive shall become immediately exercisable and shall become 100% vested, and
all stock options granted to the Executive shall become 100% vested.
(g) With the exceptions of the provisions of Sections 6.3(b),
6.3(c), 6.3(d), 6.3(e), 6.3(f), and 6.3(i) and the express terms of any benefit
plan under which the Executive is a participant, it is agreed that, upon
termination of the Executive's employment, the Employer shall have no obligation
to the Executive for, and the Executive waives and relinquishes, any further
compensation or benefits (exclusive of COBRA benefits). At the time of
termination of employment, the Employer and the Executive shall enter into a
mutually satisfactory form of release acknowledging such remaining obligations
and discharging both parties, as well as the Employer's officers, directors and
employees with respect to their actions for or on behalf of the Employer, from
any other claims or obligations arising out of or in connection with the
Executive's employment by the Employer, including the circumstances of such
termination.
(h) In the event that the Executive's employment is terminated
for any reason, the Executive shall (and does hereby) tender his resignation as
a director of the Employer and its Affiliates effective as of the date of
termination.
(i) The parties intend that the severance payments and other
compensation provided for herein are reasonable compensation for the Executive's
services to the Employer and shall not constitute "excess parachute payments"
within the meaning of Section 280G of the Internal Revenue Code of 1986 and any
regulations thereunder. In the event that the Employer's independent accountants
acting as auditors for the Employer on the date of a Change in Control determine
that the payments provided for herein constitute "excess parachute payments,"
then the compensation payable hereunder shall be increased, on a tax gross-up
basis, so as to reimburse the Executive for the tax payable by the Executive,
pursuant to Section 4999 of the Internal Revenue Code, on such "excess parachute
payments," taking into account all taxes payable by the Executive with respect
to such tax gross-up payments hereunder, so that the Executive shall be, after
payment of all taxes, in the same financial position as if no taxes under
Section 4999 had been imposed upon him.
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Section 7. Confidential Information and Related Matters.
7.1 Confidential Information. (_) The Executive agrees to
maintain in strict confidence, and not use or disclose except pursuant to
written instructions from the Employer, any Trade Secret of the Employer and its
Affiliates, for so long as the pertinent data or information remains a Trade
Secret, provided that the obligation to protect the confidentiality of any such
information or data shall not be excused if such information or data ceases to
qualify as a Trade Secret as a result of the acts or omissions of the Executive.
(_) The Executive agrees to maintain in strict confidence
and, except as necessary to perform his duties for the Employer, not to use or
disclose any Confidential Business Information for a period of two years
following (i) the termination of the Executive, except after a Change in
Control, or (ii) the resignation of the Executive without Adequate
Justification.
(_) Upon termination of employment, the Executive shall
leave with the Employer all business records, contracts, calendars, telephone
lists, rolodexes and other materials or business records relating to the
Employer and its Affiliates, its business or customers, including all physical,
electronic, and computer copies thereof, whether or not the Executive prepared
such materials or records himself. Upon such termination, the Executive shall
retain no copies of any such materials.
(_) The Executive may disclose Trade Secrets or Confidential
Business Information pursuant to any order or legal process requiring him (in
his legal counsel's reasonable opinion) to do so; provided, however, that the
Executive shall first have notified the Employer in writing of the request or
order to so disclose the Trade Secrets or Confidential Business Information in
sufficient time to allow the Employer to seek an appropriate protective order.
7.2 Agreement Not to Compete. Except after a Change in
Control, for a period of (i) six months following the termination of the
Executive for any reason other than pursuant to clauses (i), (ii), or (iii) of
Section 6.3(a), (ii) one year following the resignation of the Executive without
Adequate Justification, or (iii) two years following the termination of the
Executive for Cause pursuant to Section 6.3(a)(iii), the Executive shall not
(without the prior written consent of the Employer) compete with the Employer or
any of its Affiliates by, directly or indirectly, forming, serving as an
organizer, director or officer of, or consultant to, or acquiring or maintaining
more than a 1% passive investment in, a depository financial institution or
holding company therefor if such depository institution or holding company has
one or more offices or branches located in the Territory. Notwithstanding the
foregoing, the Executive may serve as an officer of or consultant to a
depository institution or holding company therefor even though such institution
operates one or more offices or branches in the Territory, if the Executive's
employment does not directly involve, in whole or in part, the depository
financial institution's or holding company's operations in the Territory.
7.3 Agreement Not to Solicit Customers. Except after a
Change in Control, for a period of (i) six months following the termination of
the Executive for any reason other than pursuant to clauses (i), (ii), or (iii)
of Section 6.3(a), (ii) one year following the resignation of the
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Executive without Adequate Justification, or (iii) two years following the
termination of the Executive for Cause pursuant to Section 6.3(a)(iii), the
Executive shall not (except on behalf of or with the prior written consent of
the Employer), either directly or indirectly, on the Executive's own behalf or
in the service or on behalf of others, (A) solicit, divert, or appropriate to or
for a Competing Business; or (B) attempt to solicit, divert, or appropriate to
or for a Competing Business, any person or entity that was a customer of the
Employer or any of its Affiliates on the date of termination and is located in
the Territory.
7.4 Agreement Not to Solicit Employees. Except after a
Change in Control, for a period of (i) six months following the termination of
the Executive for any reason other than pursuant to clauses (i), (ii), or (iii)
of Section 6.3(a), (ii) one year following the resignation of the Executive
without Adequate Justification, or (iii) two years following the termination of
the Executive for Cause pursuant to Section 6.3(a)(iii), the Executive will not,
either directly or indirectly, on the Executive's own behalf or in the service
or on behalf of others, (A) solicit, divert, or hire away; or (B) attempt to
solicit, divert, or hire away, to any business located in the Territory, any
employee of or consultant to the Employer or any of its Affiliates engaged or
experienced in the Business, regardless of whether the employee or consultant is
full-time or temporary, the employment or engagement is pursuant to written
agreement, or the employment is for a determined period or is at will.
7.5 Extension of Term of Restrictions. If the Executive
violates any of the restrictions set forth in Sections 7.1 to 7.4 of this
Agreement, the duration of such restriction shall be extended by a number of
days equal to the number of days in which the Executive shall have been
determined to be or shall have admitted to being in violation of such
restriction.
7.6 Remedies. The Executive acknowledges and agrees that
great loss and irreparable damage would be suffered by the Employer if the
Executive should breach or violate any of the terms or provisions of the
covenants and agreements set forth in Sections 7.1 to 7.4 of this Agreement. The
Executive further acknowledges and agrees that each of these covenants and
agreements is reasonably necessary to protect and preserve the interests of the
Employer and its Affiliates. The parties agree that money damages for any breach
of Sections 7.1 to 7.4 of this Agreement by the Executive are impossible to
measure, that the Employer is entitled to preliminary and permanent injunctive
relief in the event that the Executive violates any of the terms or provisions
of the covenants set forth in Sections 7.1 to 7.4, and that the Executive or any
of the Executive's affiliates, as the case may be, will, to the extent permitted
by law, waive in any proceeding initiated to enforce such provisions any claim
or defense that an adequate remedy at law exists. The existence of any claim,
demand, action, or cause of action against the Employer, whether predicated upon
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Employer of any of the covenants or agreements in this Agreement;
provided, however, that nothing in this Agreement shall be deemed to deny the
Executive the right to defend against this enforcement on the basis that the
Employer has no right to its enforcement under the terms of this Agreement.
7.7 Severability; Reformation. The Executive acknowledges
and agrees that (i) the covenants and agreements contained in Sections 7.1 to
7.4 of this Agreement are the essence
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of this Agreement; (ii) that the Executive has received good, adequate and
valuable consideration for each of these covenants; (iii) each of these
covenants is reasonable and necessary to protect and preserve the interests and
properties of the Employer and the Business; (iv) the Employer, through its
Affiliates, is and will be engaged in and throughout the Territory in the
Business; (v) a Competing Business could be engaged in from any place in the
Territory; and (vi) the Employer has a legitimate business interest in
restricting the Executive's activities throughout the Territory. The Executive
also acknowledges and agrees that (i) irreparable loss and damage will be
suffered by the Employer should the Executive breach any of these covenants and
agreements; (ii) each of these covenants and agreements in Sections 7.1 to 7.4
is separate, distinct and severable not only from the other covenants and
agreements but also from the remaining provisions of this Agreement; and (iii)
the unenforceability of any covenants or agreements shall not affect the
validity or enforceability of any of the other covenants or agreements or any
other provision or provisions of this Agreement. The Executive acknowledges and
agrees that if any of the provisions of Sections 7.1 to 7.4 of this Agreement
shall ever be deemed to exceed the time, activity, or geographic limitations
permitted by applicable law, then such provisions shall be and hereby are
reformed to the maximum time, activity, or geographical limitations permitted by
applicable law.
7.8 Modification of Section 7 and Definitions. The Executive
and the Employer hereby agree that they will negotiate in good faith to amend
this Agreement from time to time to modify the terms of this Section 7, the
definition of the term "Territory," and the definition of the term "Business,"
to reflect changes in the Employer's business and affairs so that the scope of
the limitations placed on the Executive's activities by this Section 7
accomplishes the parties' intent in relation to the then current facts and
circumstances. Any such amendment shall be effective only when completed in
writing and signed by the Executive and the Employer.
Section 8. NoticesSection 8. Notices. All notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by registered
or certified mail (return receipt requested) postage prepaid to the parties at
the following addresses (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof):
(a) If to Employer:
Fayette County Bank
000 Xxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx Xxxx, Xxxxxxx 00000
Attention: Chairman of the Board
With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
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(b) If to the Executive, at the last address included on the
Employer's payroll records.
Section 9. Miscellaneous
9.1 Representations and Covenants. In order to induce the
Employer to enter into this Agreement, the Executive makes the following
representations and covenants to the Employer and acknowledges that the Employer
is relying upon such representations and covenants:
(a)(_) No restrictive covenants and/or non-compete
agreements exist to which the Executive is a party or
otherwise bound which will interfere with or in any
way impede his ability to perform all of the terms
and conditions of this Agreement.
(b) The Executive, during the term of this Agreement,
shall use his best efforts to disclose to the Board
of Directors by any effective method any bona fide
information known by him that would have any material
negative impact on the Employer or an Affiliate.
9.2 Entire Agreement. This Agreement contains the entire
understanding of the parties as to the subject matter hereof and fully
supersedes all prior oral and written agreements and understandings between the
parties with respect to such subject matter.
9.3 Amendment; Waiver. This Agreement may not be amended,
supplemented, canceled or discharged, except by written instrument executed by
the party as to whom enforcement is sought. No failure to exercise, and no delay
in exercising, any right, power or privilege hereunder shall operate as a waiver
thereof. No waiver of any breach of this Agreement shall be deemed to be a
waiver of any preceding or succeeding breach of this Agreement.
9.4 Binding Effect; Assignment. The rights and obligations of
this Agreement shall bind and inure to the benefit of the surviving corporation
in any merger or consolidation in which the Employer is a party, or any assignee
of all or substantially all of the Employer's business and properties. The
Executive's rights and obligations under this Agreement may not be assigned by
him, except that his right to receive accrued but unpaid compensation,
unreimbursed expenses and other rights, if any, provided under this Agreement
which survive termination of this Agreement shall pass after death to the
personal representatives of his estate.
9.5 Headings. The headings contained in this Agreement
(except those in Section 1) are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
9.6 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original.
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9.7 Governing Law. This Agreement has been executed and
delivered in the State of Georgia, and its validity, interpretation, performance
and enforcement shall be governed by the internal laws but not the conflicts of
law rules of such State.
9.8 Further Assurances. Each party agrees at any time, and
from time to time, to execute, acknowledge, deliver and perform and cause to be
executed, acknowledged, delivered and performed, all such further acts, deeds,
assignments, transfers, conveyances, powers of attorney and assurances as may be
necessary or proper to carry out the provisions and intent of this Agreement.
9.9 Gender; Number. In this Agreement, the use of one gender
(e.g., "he," "she" and "it") shall mean each other gender; and the singular
shall mean the plural, and vice versa, all as the context may require.
9.10 Severability. The parties acknowledge that the terms of
this Agreement are fair and reasonable at the date signed by them. However, in
light of the possibility of a change of conditions or differing interpretations
by a court of what is fair and reasonable, the parties stipulate as follows: if
any one or more of the terms, provisions, covenants or restrictions of this
Agreement shall be determined by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated; further, if any
one or more of the provisions contained in this Agreement shall for any reason
be determined by a court of competent jurisdiction to be excessively broad as to
duration, geographical scope, activity or subject, it shall be construed, by
limiting or reducing it, so as to be enforceable to the extent compatible with
then applicable law.
9.11 Consents. Any consent, approval or authorizations
required hereunder shall mean the written consent, approval or authorization of
the Chairman of the Board of the Employer or such other officer as may be
designated in writing by the Board of Directors.
9.12 Indemnification and Expenses. The Employer will indemnify
the Executive and his legal representatives to the fullest extent permitted by
the laws of the State of Georgia or any other state where the Employer shall be
incorporated from time to time and the existing or any future Bylaws of the
Employer, against all costs, charges and expenses whatsoever incurred or
sustained by him or his legal representatives in connection with any action,
suit or proceeding to which he or his legal representatives may be made a party
by reason of his being or having been a director or officer of the Employer
(other than an action, suit or proceeding against the Executive under this
Agreement), and the Executive shall be entitled to the protection of any
insurance policies the Employer elect to maintain generally for the benefit of
its directors and officers. To the extent permitted by law, Employer shall
advance all reasonable costs, charges and expenses incurred by the Executive in
defending himself against any action referred to in this Section 9.12.
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IN WITNESS WHEREOF, the Employer has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers thereunto duly
authorized, and the Executive has signed and sealed this Agreement, effective as
of the date first above written.
FAYETTE COUNTY BANK
ATTEST:
By: By:
---------------------------- --------------------------
Name: Name:
Title: Title:
(CORPORATE SEAL)
EXECUTIVE
---------------------------
Xxxxxxx X. Xxxxxxxxx
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