EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is hereby entered into by
and between XXXXXXX X. XXXXXXXX, a resident of the State of Georgia (the
"Executive ") and WEST GEORGIA NATIONAL BANK, a national banking association
(the "Bank").
WHEREAS, the Executive is currently employed by the Bank and his
current employment contract shall expire as of December 31, 2005; and
WHEREAS, the Bank and the Executive desire to enter into a new written
agreement to document the complete terms and conditions pursuant to which the
Executive shall continue to be employed by the Bank; and
WHEREAS, the Bank and the Executive intend that this Agreement will
supersede any and all previous oral or written employment agreements between the
Bank and the Executive;
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1.
DEFINITIONS
As used in this Agreement, the following words and/or phrases shall
have the meanings set forth below unless a different meaning plainly is required
by the context:
1.1 Agreement shall mean this Employment Agreement between the Bank and
the Executive.
1.2 Affiliate shall mean any parent, brother-sister or subsidiary
corporation of the Bank or WGNB, any joint venture in which the Bank or WGNB
owns at least a 50 percent interest, and any partnership, limited liability
partnership or limited liability corporation in which the Bank or WGNB or any of
its wholly-owned subsidiaries owns at least a 50 percent interest.
1.3 Bank shall mean West Georgia National Bank, a national banking
association.
1.4 Base Salary shall mean the annual base compensation paid to the
Executive as provided in Section 3.1.
1.5 Board shall mean the Board of Directors of WGNB and/or the Bank.
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1.6 Business of the Bank shall mean any and all operations incident to
the business of banking.
1.7 Business Opportunities shall mean any specialized information or
plans of WGNB and/or the Bank concerning the business of WGNB and/or the Bank,
including but not limited to, the financing of or investment in any target
person or business, or the availability of any such business, by WGNB and/or the
Bank, together with all related information concerning the specifics of any
contemplated acquisition, purchase or investment (including price, terms, and
the identity of such business) regardless of whether WGNB or the Bank has
entered any agreement, made any commitment, or issued any bid or offer to such
business.
1.8 Cause shall mean (i) the Executive 's willful failure to perform
his material duties and responsibilities; (ii) the Executive 's unlawful or
willful misconduct which is economically injurious to WGNB or the Bank or to any
entity in control of, controlled by or under common control with the Bank and
its successors; (iii) the Executive 's conviction of, or a plea of guilty or
nolo contendere, to a felony charge; (iv) habitual drug or alcohol abuse that
impairs the Executive 's ability to perform the essential duties of his
position; (v) the initiation of suspension or removal proceedings against the
Executive by federal or state regulatory authorities acting under lawful
authority; (vi) the Executive 's willful disclosure to unauthorized persons of
Confidential Information or Trade Secrets of WGNB or the Bank; or (vii) the
Executive 's failure to comply with the Code of Ethics or other personnel
policies of WGNB and/or the Bank.
1.9 Change in Control shall mean the occurrence of any one of the
following events:
(i) Change in Ownership. A change in the ownership of WGNB or
the Bank (each being individually referred to in this Section as a
"Corporation") that occurs on the date that any one person, or more
than one person acting as a group, acquires ownership of stock of a
Corporation that, together with stock held by such person or group,
constitutes more than fifty percent (50%) of the total fair market
value or total voting power of the stock of such Corporation. However,
if any one person or more than one person acting as a group is
considered to own more than fifty percent (50%) of the total fair
market value or total voting power of the stock of a Corporation, the
acquisition of additional stock by the same person or persons is not
considered to cause a change in the ownership of such Corporation (or
to cause a change in the effective control of such Corporation (within
the meaning of subsection (ii) herein). An increase in the percentage
of stock owned by any one person, or persons acting as a group, as a
result of a transaction in which a Corporation acquires its stock in
exchange for property will be treated as an acquisition of stock for
purposes of this section. This applies only when there is a transfer of
stock of a Corporation (or issuance of stock of a Corporation) and
stock in such Corporation remains outstanding after the transaction.
(ii) Change in Effective Control. A change in the effective
control of a Corporation that occurs on the date that either:
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(A) Any one person, or more than one person acting as
a group, acquires (or has acquired during the 12-month period ending on
the date of the most recent acquisition by such person or persons)
ownership of stock of such Corporation possessing 35 percent or more of
the total voting power of the stock of such Corporation; or
(B) a majority of members of the Board is replaced
during any 12-month period by directors whose appointment or election
is not endorsed by a majority of the members of the Board prior to the
date of the appointment or election.
(iii) Change in Ownership of a Substantial Portion of Assets.
A change in the ownership of a substantial portion of a Corporation's
assets shall occur on the date that any one person, or more than one
person acting as a group, acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by such person
or persons) assets from such Corporation that have a total gross fair
market value equal to or more than 40 percent of the total gross fair
market value of all of the assets of such Corporation immediately prior
to such acquisition or acquisitions. For this purpose, gross fair
market value means the value of the assets of the Corporation, or the
value of the assets being disposed of, determined without regard to any
liabilities associated with such assets.
In determining whether a Change in Control has occurred, the following rules
shall apply:
(A) Stock Attribution Rules. For purposes of this section, Code Section
318(a) applies to determine stock ownership. Stock underlying a vested option is
considered owned by the individual who holds the vested option (and the stock
underlying an unvested option is not considered owned by the individual who
holds the unvested option). For purposes of the preceding sentence, however, if
a vested option is exercisable for stock that is not substantially vested (as
defined by Treasury Regulation Sections 1.83-3(b) and (j)), the stock underlying
the option is not treated as owned by the individual who holds the option. In
addition, mutual and cooperative corporations are treated as having stock for
purposes of this subsection.
(B) Persons Acting as a Group. For purposes of this section, persons
will not be considered to be acting as a group solely because they purchase or
own stock of the same Corporation at the same time or as a result of the same
public offering. However, persons will be considered to be acting as a group if
they are owners of a corporation that enters into a merger, consolidation,
purchase or acquisition of stock, or similar business transaction with one of
the Corporations. If a person, including an entity, owns stock in both
corporations that enter into a merger, consolidation, purchase or acquisition of
stock, or similar transaction, such shareholder is considered to be acting as a
group with other shareholders in a corporation prior to the transaction giving
rise to the change and not with respect to the ownership interest in the other
corporation.
(C) Transfers to a Related Person. There is no Change in Control event
with respect to subsection (iii) when there is a transfer by a Corporation to an
entity that is controlled by the shareholders of the transferring Corporation
immediately after the transfer. A transfer of assets by a Corporation is not
treated as a change in the ownership of such assets if the assets are
transferred to:
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(1) A shareholder of the Corporation (immediately before the
asset transfer) in exchange for or with respect to its stock;
(2) An entity, 50 percent or more of the total value or voting
power of which is owned, directly or indirectly, by the Corporation;
(3) A person, or more than one person acting as a group, that
owns, directly or indirectly, 50 percent or more of the total value or voting
power of all the outstanding stock of the Corporation; or
(4) An entity, at least 50 percent of the total value or
voting power of which is owned, directly or indirectly, by a person described in
subsection (3).
For purposes of this subsection (C) and except as otherwise provided, a person's
status is determined immediately after the transfer of the assets. For example,
a transfer to a corporation in which the transferor Corporation has no ownership
interest before the transaction, but which is a majority owned subsidiary of the
transferor Corporation after the transaction is not treated as a change in the
ownership of the assets of the transferor Corporation.
1.10 Code shall mean the Internal Revenue Code of 1986, as amended.
1.11 Committee shall mean the Executive Compensation and Management
Succession Committee of the Board, or such other committee to which the Board
delegates authority regarding executive compensation.
1.12 Confidential Information shall mean, other than Trade Secrets, any
data or information, which is material to the Bank and/or WGNB and not generally
known by the public. Confidential Information shall include, but not be limited
to, the taking of deposits, making loans and extensions of credit, cashing
checks, and other Business of the Bank, any information pertaining to the
identity of customers, depositors, or borrowers served by the Bank, Business
Opportunities of the Bank, the details of this Agreement, WGNB's and the Bank's
business, marketing and acquisition plans and financial statements and
projections, and the costs of the services the Bank may offer or provide to the
customers, depositors or borrowers it serves, to the extent such information is
material to WGNB and the Bank and not generally known to the public.
1.13 Disability means the Executive 's eligibility to receive income
replacement benefits for a period of not less than three (3) months under an
accident and health plan covering employees of the Bank due to a
medically-determinable physical or mental impairment, or if no such plan is
applicable, the Executive 's inability to engage in any substantial gainful
activity due to a medically-determinable physical or mental impairment, which
can be expected to result in death or can be expected to last for a continuous
period of not less than twelve (12) months.
1.14 Effective Date shall mean November 28, 2005.
1.15 ERISA shall mean the Employee Retirement Income Security Act of
1974, as amended.
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1.16 Executive shall mean Xxxxxxx X. Xxxxxxxx.
1.17 Term shall mean the period during which this Agreement is wholly
effective, as more fully described in Section 2.4.
1.18 Termination Date shall mean the last day of actual employment of
the Executive by the Bank.
1.19 Trade Secret shall mean the whole or any portion or phase of any
scientific or technical information, design, process, procedure, formula or
improvement of WGNB or the Bank that is valuable and secret (in the sense that
it is not generally known to competitors of WGNB and the Bank) and any
information that meets the definition of "trade secret" under the Georgia Trade
Secrets Act of 1990, O.C.G.A. Section 10-1-760 through Section 10-1-767.
1.20 WGNB shall mean WGNB Corp., a Georgia bank holding company.
2.
DUTIES AND AUTHORITY
2.1 Duties and Authority. The Executive is engaged and agrees to
perform services for and on behalf of the Bank as a Senior Vice President and
shall report directly to the President of the Bank. The Executive shall have
such duties and authority as customarily performed by persons acting in such
capacities or as may be assigned to him by the Bank's bylaws or by the
President. The Executive agrees to perform such duties diligently and
efficiently and in accordance with the reasonable directions of the President of
the Bank. The Executive shall conduct himself at all times in a business-like
and professional manner as appropriate for his position and shall represent the
Bank in all respects in compliance with good business and ethical practices. In
addition, the Executive shall be subject to and abide by the policies and
procedures of the Bank applicable to personnel of the Bank, as may be adopted
from time to time.
2.2 Best Efforts. During the term of this Agreement, the Executive
shall devote his full attention, energies and best efforts to rendering services
on behalf of the Bank (or subsidiaries or Affiliates thereof), and shall not
engage in any outside employment without the express written consent of the
Board. Notwithstanding the foregoing, the Executive is not prohibited from
investing or trading in stocks, bonds, commodities or other forms of investment,
including real property, so long as the Executive does not (i) own more than two
percent (2%) of the outstanding ownership interest of an entity, and (ii)
"participate" (within the meaning of Treas. Reg. Sections 1.469-5(f) and
1.469-5T(f), as in effect as of the date this Agreement is executed) in such
investments, unless such investment is approved by the Board or the Executive
Committee of the Board in advance and shown on Exhibit "B" hereto.
2.3 Outside Activities. The Executive may pursue personal interests so
long as such participation does not interfere with the Executive's performance
of his duties hereunder, and the Executive may participate in industry, civic
and charitable activities so long as such activities do not materially interfere
with the performance of his duties hereunder. The Executive may also participate
in any interest or activity which is approved in writing by the President of the
Bank. At least once each year during the term of this Agreement, and at any time
upon the President's
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request, the Executive shall provide a full disclosure to the President of his
participation in any industry, civic and charitable activities (including
service on corporate or charitable boards of directors or trustees). Prior to
pursuing or accepting any activity other than those in which he is engaged on
the Effective Date, the Executive agrees to discuss such activity with the
President of the Bank.
2.4 Term. The Term of this Agreement shall be the period during which
this Agreement (including any amendments and/or extensions of this Agreement)
remains effective. The initial Term of this Agreement shall commence on the
execution date hereof and shall continue until the close of business on the last
day of the two-year period after the Effective Date hereof, subject to earlier
termination as provided in this Agreement. At least ninety (90) days prior to
the end of the initial Term hereof and each subsequent Term period thereafter,
this Agreement shall be deemed to be extended automatically for an additional
two-year Term on the same terms and conditions, unless either the Bank or the
Executive provides a written notice of nonrenewal to the other party no less
than ninety (90) days prior to the date on which this Agreement would otherwise
be extended.
3.
COMPENSATION AND BENEFITS
3.1 Annual Base Salary. The Bank shall pay to the Executive as
compensation for his services provided hereunder a base salary of $120,000 per
year ("Base Salary"), payable in accordance with the Bank's normal payroll
procedures. The Committee shall review the Executive's Base Salary annually, and
in its sole discretion, subject to approval of the Board, may increase the
Executive's Base Salary from year to year. The Committee shall not decrease the
amount of the Executive's Base Salary unless substantially similar decreases are
applicable to other senior officers of the Bank or WGNB. The annual review of
the Executive's salary by the Committee will consider, among other things, the
Executive's own performance as well as the Bank's performance.
3.2 Annual Incentive Compensation. The Executive shall be eligible to
participate in any annual short-term incentive compensation program that the
Committee and/or the Board shall approve for him for any particular year or
period (the "Bonus"). In addition, the Executive shall be eligible to
participate in the annual profit sharing bonus program that is available to all
employees of the Bank (the "Profit Sharing Bonus").
3.3 Long-Term Incentive Compensation. The Executive shall be eligible
to participate in any long-term incentive compensation program and/or
equity-based compensation program that the Committee and/or the Board shall
approve for him for any particular year or period. Any grants or awards of
equity-based compensation shall be governed by the terms and conditions of the
plan or plans under which such grants are made.
3.4 Employee Benefit Plans and Policies. The Executive shall be
entitled to participate in each employee benefit plan, policy or arrangement
which is sponsored, maintained or contributed to by the Bank and in which
current similarly-situated officers of the Bank may participate, in accordance
with the terms and provisions of such plans and on the same terms and
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conditions as other similarly-situated officers of the Bank. Contributions by
the Executive to such plans shall be required only to the extent required of
other similarly-situated officers of the Bank.
3.5 Automobile Allowance. The Bank shall provide the Executive with a
monthly cash allowance for the purpose of reimbursement of expenses related to
the use of his personal automobile for business purposes, pursuant to a policy
determined at the discretion of the Committee. Unless otherwise determined by
the Committee and specified in its policy, the Executive shall be solely
responsible for all costs and liabilities related to such automobile, including
but not limited to lease and/or purchase payments, insurance, maintenance,
gasoline/oil and repair costs.
3.6 Club Dues. For general business purposes (and not as compensation
to the Executive ), the Bank shall pay the Executive's periodic dues for
membership in various civic clubs and other organizations as approved by the
Committee.
3.7 Expense Reimbursement. The Bank shall reimburse the Executive for
reasonable and necessary travel and other business related expenses incurred by
him in performance of the business of the Bank in accordance with the Bank's
standard expense reimbursement practices and policies in existence from time to
time, subject to such dollar limitations, verification and record keeping
requirements as may be established from time to time by the Bank.
3.8 Withholding, FICA, FUTA, Etc. Any amount to be paid to the
Executive under the provisions of this Agreement which represents taxable income
to him shall be subject to, and reduced by, withholding for any applicable
federal, state or local taxes imposed by law, including, but not limited to,
employment taxes imposed under Subtitle C of the Code.
4.
RESTRICTIVE COVENANTS
4.1 Confidentiality. In the Executive's position as an Executive of the
Bank, the Executive has had and will have access to Confidential Information,
Trade Secrets and other proprietary information of vital importance to WGNB and
the Bank and has and will also develop relationships with customers, employees
and others who deal with the Bank which are of value to the Bank and WGNB. The
Bank requires as a condition of Executive's employment that Executive agree to
certain restrictions on Executive's use of the proprietary information and
valuable relationships developed during Executive's employment with the Bank.
The Bank and the Executive therefore agree and acknowledge that the Bank may
entrust the Executive with highly sensitive confidential, restricted and
proprietary information concerning various Business Opportunities, customer
lists, and personnel matters. The Executive acknowledges that he shall bear a
fiduciary responsibility to WGNB and the Bank to protect such information from
use or disclosure that is not necessary for the performance of Executive's
duties hereunder, as an essential incident of the Executive's employment with
the Bank.
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4.2 Exclusions. Notwithstanding the definitions of Trade Secrets,
Confidential Information and Business Opportunities set forth in Section 1,
Trade Secrets, Confidential Information and Business Opportunities shall not
include any information that:
(a) is or becomes generally known to the public;
(b) is developed by Executive after termination of employment
through entirely independent efforts;
(c) the Executive obtains from an independent source having a
bona fide right to use and disclose such information;
(d) is required to be disclosed by law, except to the extent
eligible for special treatment under an appropriate protective order;
or
(e) the Bank or WGNB approves for unrestricted release by
express written authorization.
4.3 New Developments. Any discovery, invention, process or improvement
made or discovered by the Executive during the term of this Agreement in
connection with or in any way affecting or relating to the business of WGNB or
the Bank or any of its Affiliates (as then carried on or under active
consideration) shall forthwith be disclosed to the Bank and shall belong to and
be the absolute property of WGNB and the Bank. The preceding sentence does not
apply to any invention for which no equipment, supplies, facility, or trade
secret information of the Bank was used and which was developed entirely on the
Executive's own time, unless the invention relates directly to the business of
the Bank or WGNB or its Affiliates or to its or their actual or demonstrably
anticipated research or development, or the invention results from any work
performed by the Executive for the Bank.
4.4 Security Measures. During the Executive's employment with the Bank,
the Executive is required to observe all security measures adopted to protect
Trade Secrets, Confidential Information and Business Opportunities of WGNB and
the Bank.
4.5 Use and Return of Documents and Property. The Executive
acknowledges that in the course of his employment with the Bank, he will have
the opportunity to inspect and use certain property, both tangible and
intangible, of WGNB and the Bank and its Affiliates. All such property shall
remain the exclusive property of WGNB, the Bank and its Affiliates, and the
Executive has and shall have no right or interest in such property. The
Executive shall use WGNB's and the Bank's property only during employment and
only in the performance of his job and to further WGNB's and the Bank's
interests, and he will not remove such property from the Bank's premises except
to the extent necessary to perform his duties and to the extent approved by the
Bank and/or WGNB, either expressly or generally under its policies. Upon the
request of WGNB or the Bank, and, in any event, promptly upon the Executive's
Termination Date, the Executive shall return to the Bank all of the Bank's and
WGNB's memoranda, notes, records, data, books, manuals, computer programs,
audio-visual materials, correspondence, lists, every piece of information
recorded in any form, including all copies of such materials, and all other
tangible property.
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4.6 Nonsolicitation of Customers, Borrowers or Depositors. The
Executive agrees that during the term of his employment with the Bank, he will
not, directly or indirectly, without the Bank's prior written consent, contact
any customer, depositor or borrower of the Bank or any of its Affiliates for
business purposes unrelated to furthering the Business of the Bank. Executive
further agrees that for a period of twenty-four (24) months following his
Termination Date, he will not directly or indirectly, (i) contact, solicit or
divert, or attempt to contact, solicit, divert or take away, any customer,
depositor or borrower of the Bank or its Affiliates for purposes of, or with
respect to, providing such customer, depositor or borrower services which
constitute the Business of the Bank; or (ii) take any affirmative action with a
customer, depositor or borrower of the Bank or its Affiliates for the purposes
of providing a customer, depositor or borrower to a business competing with the
Bank or its Affiliates. The prohibitions of the preceding sentence shall apply
only to customers, depositors or borrowers of the Bank with whom the Executive
had Material Contact during his term of employment. For purposes of this
Agreement, the Executive had "Material Contact" with a customer, depositor or
borrower if (a) he had business dealings with the customer, depositor or
borrower on the Bank's behalf; (b) he was responsible for supervising or
coordinating the dealings between the Bank and the customer, depositor or
borrower; or (c) he obtained Confidential Information about the customer,
depositor or borrower as a result of his association with the Bank.
4.7 Nonsolicitation of Employees. The Executive agrees that during his
employment with the Bank and for twenty-four (24) months after his Termination
Date, the Executive will not, directly or indirectly, solicit or attempt to
recruit or hire any employee of the Bank or its Affiliates to provide services
similar to those performed by the employee for the Bank on behalf of another
entity or person.
4.8 Nondisclosure of Trade Secrets. Except to the extent reasonably
necessary for the Executive to perform his duties for the Bank, the Executive
shall not, directly or indirectly, furnish or disclose to any person, use in any
way, or negligently permit any unauthorized person who is not an employee of the
Bank to use, disclose or gain access to any Trade Secrets of WGNB or the Bank or
its Affiliates, or any other person or entity making Trade Secrets available for
the Bank's use, for so long as such Trade Secrets remain "trade secrets" under
applicable state law.
4.9 Nondisclosure of Confidential Information. During the term of his
employment with the Bank and for a period of three (3) years following the
Executive's Termination Date, except to the extent reasonably necessary for the
Executive to perform his duties for the Bank, the Executive shall not, without
the prior written consent of WGNB or the Bank, directly or indirectly, furnish
or disclose to any person, use in any way, or negligently permit any
unauthorized person who is not employed by the Bank or WGNB to use, disclose or
gain access to, for personal benefit or the benefit of others, any Confidential
Information of WGNB or the Bank or its Affiliates, which remains competitively
sensitive.
4.10 Covenant Not to Compete.
(a) Territories: WGNB transacts business as a bank holding
company with the Bank as its subsidiary bank which accepts deposits,
makes loans, cashes checks and otherwise engages in the business of
banking ("Business of the Bank"). WGNB and the
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Bank do business in the counties of Xxxxxxx, Xxxxxxx, Paulding and
Haralson in the State of Georgia, and Executive performs the duties
described in Section 2.1 throughout those counties. Executive has
established business relationships and performs the duties described in
Section 2.1 in the geographic area covered by the counties of Xxxxxxx,
Xxxxxxx, Paulding and Haralson in the State of Georgia.
(b) Covenants: For a period of twenty-four (24) months after
the termination of his employment with the Bank, Executive shall not
directly or indirectly provide the duties described in Section 2.1 of
this Agreement (including as an advisor, consultant, or independent
contractor) for any entity or person conducting the Business of the
Bank within the counties of Xxxxxxx, Xxxxxxx, Paulding and Haralson in
the State of Georgia.
4.11 Notification of Subsequent Employment. During a period of one (1)
year after the termination of the Executive's employment with the Bank,
Executive shall notify the Bank in writing of the name and address of the
Executive's new employer and the Executive's functions with his new employer
within thirty (30) days after accepting employment with any other corporation,
partnership, association, person, organization or other entity.
4.12 Reasonableness. Executive has carefully considered the nature and
extent of the restrictions upon his rights and the rights and remedies conferred
on the Bank under this Agreement, and the Executive hereby acknowledges and
agrees that:
(a) the restrictions and covenants contained herein, and the
rights and remedies conferred upon WGNB and the Bank, are necessary to
protect the goodwill and other value of the business of WGNB and the
Bank;
(b) the restrictions placed upon the Executive hereunder are
fair and reasonable in time, will not prevent him from earning a
livelihood, and place no greater restraint upon the Executive than is
reasonably necessary to secure the business and goodwill of WGNB and
the Bank;
(c) WGNB and the Bank are relying upon the restrictions and
covenants contained herein in continuing to make available to the
Executive information concerning the Business of the Bank and WGNB;
(d) Executive's employment hereunder places him in a position
of confidence and trust with WGNB and the Bank and its employees,
customers, depositors and borrowers; and
(e) the provisions of this section shall be interpreted so as
to protect the Confidential Information, and to secure for WGNB and the
Bank the exclusive benefits of the work performed on behalf of the Bank
by the Executive under this Agreement, and not to unreasonably limit
his ability to engage in employment and consulting activities in
noncompetitive areas which do not endanger WGNB's and the Bank's
legitimate interests expressed in this Agreement.
4.13 Remedy for Breach. Executive acknowledges and agrees that his
breach of any of the covenants contained in this Article of this Agreement will
cause irreparable injury to WGNB
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and the Bank and that remedies at law available to WGNB and the Bank for any
actual or threatened breach by the Executive of such covenants will be
inadequate and that WGNB and the Bank shall be entitled to specific performance
of the covenants in this Article or injunctive relief against activities in
violation of this Article by temporary or permanent injunction or other
appropriate judicial remedy, writ or order, without the necessity or proving
actual damages. This provision with respect to injunctive relief shall not
diminish the right of WGNB and the Bank to claim and recover monetary damages
against the Executive for any breach of this Agreement, in addition to
injunctive relief. The Executive acknowledges and agrees that the covenants
contained in this Article shall be construed as agreements independent of any
other provision of this or any other contract between the parties hereto, and
that the existence of any claim or cause of action by the Executive against WGNB
or the Bank, whether predicated upon this or any other contract, shall not
constitute a defense to the enforcement by WGNB and the Bank of said covenants.
5.
TERMINATION OF EMPLOYMENT
5.1 Termination by the Bank for Cause. During the Term of this
Agreement, the Bank may terminate the Executive's employment for Cause,
effective immediately upon written notice to the Executive. Upon such a
termination for Cause, the Executive shall be entitled to any accrued but unpaid
Base Salary, any earned but unpaid Bonus and Profit Sharing Bonus for the fiscal
year which ended prior to the Termination Date, any accrued but unused vacation,
and any unreimbursed expenses through the Termination Date. Executive shall not
be entitled to any other compensation, bonus, severance pay or post-termination
benefits, other than as required by law. Any outstanding equity-based
compensation grants or awards held by the Executive shall be governed by the
terms of the plan under which such grants or awards were made.
5.2 Termination by the Bank Without Cause Prior to a Change in Control.
During the Term of this Agreement at any time prior to a Change in Control, the
Bank may terminate the Executive's employment for any reason other than Cause,
effective immediately upon written notice to the Executive. Upon such a
termination, in addition to any earned but unpaid Base Salary, any accrued but
unused vacation, any earned but unpaid Bonus for the fiscal year which ended
prior to the Termination Date, any unpaid Profit Sharing Bonus for the fiscal
year which ended prior to the Termination Date, and unreimbursed expenses
through the Termination Date, the Executive shall be entitled to:
(a) Severance Pay: Executive shall be entitled to severance
pay in the amount of the greater of (i) the Executive's Base Salary,
target Bonus and Profit Sharing Bonus for the remainder of the then
Term of the Agreement; or (ii) one and one-half times the Executive's
annual Base Salary, target Bonus and Profit Sharing Bonus based on his
current Base Salary at the time of termination. The severance pay
provided for in this subsection shall be paid in a single sum cash
payment made as soon as administratively practicable following the
Termination Date, but in no event later than two and one-half (2 1/2)
months after his Termination Date; provided that such payment shall be
contingent upon the Executive's execution of a general release of all
claims, as described in Section 5.7.
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(b) Equity Compensation: Any outstanding equity-based
compensation grants or awards held by the Executive shall be governed
by the terms of the plans under which they were granted.
(c) Group Health Benefits: Regardless of whether the Executive
or his eligible qualified beneficiaries actually elect COBRA
continuation coverage under the Bank's group health plan, the Executive
shall be entitled to a lump-sum payment equal to the full COBRA premium
amount (determined as of the Termination Date) for eighteen (18) months
of continued group health plan coverage (as in place as of the
Termination Date) for the Executive, his spouse and eligible
dependents. Such payment shall be made as soon as administratively
practicable following the Executive's termination of employment, but in
no event later than two and one-half (2 1/2) months after the date his
employment ends. In addition, if the Executive or his eligible
qualified beneficiaries have elected COBRA continuation coverage under
the Bank's group health plan and any one of them becomes eligible for
COBRA continuation coverage beyond the initial 18-month period due to a
second qualifying event, the Executive shall be entitled to a lump-sum
payment equal to the full COBRA premium amount (determined as of the
date of such second qualifying event) for the additional period of
continuation coverage (up to a maximum of an additional 18 months of
continuation coverage). This additional lump sum payment for the second
qualifying event coverage shall be made as soon as administratively
practicable following the Executive's providing written notice to the
Bank of the second qualifying event, but no later than two and one-half
(2 1/2) months after the date of such second qualifying event.
The severance pay provided for herein shall be in lieu of any and all
other payments, bonuses or other compensation to which the Executive
may have been entitled under any severance plan, policy or payroll
practice of the Bank.
5.3 Termination of Employment Without Cause Following a Change in
Control. If the Executive's employment is terminated by the Bank (or the
applicable successor) without Cause in the twenty-four (24) month period
commencing on the date of the Change in Control, then, in addition to any earned
but unpaid Base Salary, any accrued but unused vacation, any earned but unpaid
Bonus for the fiscal year which ended prior to the Termination Date, any unpaid
Profit Sharing Bonus for the fiscal year which ended prior to the Termination
Date, and unreimbursed expenses through the Termination Date, the Executive
shall be entitled to receive the following:
(a) Severance Pay: The Executive shall be entitled to
severance pay in an amount equal to twenty-four (24) months of the
Executive's Base Salary, target Bonus and Profit Sharing Bonus based on
his current Base Salary at the Termination Date. The severance pay
provided for in this subsection shall be paid in a single sum cash
payment made as soon as administratively practicable following the
Termination Date, but in no event later than two and one-half (2 1/2)
months after his Termination Date; provided that such payment shall be
contingent upon the Executive's execution of a general release of all
claims, as described in Section 5.7.
Page 12
(b) Equity Compensation: Any outstanding equity-based
compensation grants or awards held by the Executive shall be governed
by the terms of the plans under which such grants or awards were made.
(c) Group Health Benefits: Regardless of whether the Executive
or his eligible qualified beneficiaries actually elect COBRA
continuation coverage under the Bank's group health plan, the Executive
shall be entitled to a lump-sum payment equal to the full COBRA premium
amount (determined as of the Termination Date) for eighteen (18) months
of continued group health plan coverage (as in place as of the
Termination Date) for the Executive, his spouse and eligible
dependents. Such payment shall be made as soon as administratively
practicable following the Executive's termination of employment, but in
no event later than two and one-half (2 1/2) months after the date his
employment ends. In addition, if the Executive or his eligible
qualified beneficiaries have elected COBRA continuation coverage under
the Bank's group health plan and any one of them becomes eligible for
COBRA continuation coverage beyond the initial 18-month period due to a
second qualifying event, the Executive shall be entitled to a lump-sum
payment equal to the full COBRA premium amount (determined as of the
date of such second qualifying event) for the additional period of
continuation coverage (up to a maximum of an additional 18 months of
continuation coverage). This additional lump sum payment for the second
qualifying event coverage shall be made as soon as administratively
practicable following the Executive's providing written notice to the
Bank of the second qualifying event, but no later than two and one-half
(2 1/2) months after the date of such second qualifying event.
The severance pay provided for herein shall be in lieu of any and all
other payments, bonuses or other compensation to which the Executive
may have been entitled under any severance plan, policy or payroll
practice of the Bank.
(d) Excess Parachute Payment. Notwithstanding anything herein
to the contrary, the Bank shall not pay to the Executive any amount
which shall be deemed to constitute an "excess parachute payment" in
accordance with Code Section 280G. The Bank shall reduce any amount due
hereunder by such minimum amount necessary to cause the total amount
payable to the Executive in the applicable year not to constitute an
"excess parachute payment."
5.4 Termination of Agreement by Reason of Executive's Death or
Disability. This Agreement shall terminate immediately upon the termination of
the Executive's employment due to the death of the Executive or due to written
notice from the Bank to the Executive if he shall at any time become
incapacitated by reason of a Disability. Upon the Executive's termination due to
death or Disability, the Executive, or his estate in the case of his death,
shall be entitled to any earned but unpaid Base Salary, any accrued but unused
vacation, any earned but unpaid Bonus and/or Profit Sharing Bonus for the fiscal
year which ended prior to the Termination Date, and unreimbursed expenses
through the Termination Date. The monies due under this Section 5.4 shall be
paid in a single-sum cash payment made as soon as administratively practicable
following the Termination Date, but in no event later than two and one-half (2
1/2) months after the Termination Date. Upon the Executive's termination due to
death or Disability, any outstanding equity-based compensation grants or awards
held by the Executive shall be governed
Page 13
by the terms of the plans under which such grants or awards were granted. The
Bank shall not have any further obligations to the Executive, the Executive's
estate, heirs or other legal representatives.
5.5 Termination by Executive. Executive may terminate this Agreement
and his employment with the Bank upon thirty (30) days' written notice to the
Bank. Upon such a termination, the Executive shall be entitled to any accrued
but unpaid Base Salary, any accrued but unused vacation, and any unreimbursed
expenses through the Termination Date. Executive shall not be entitled to any
other compensation, bonus, severance pay or post-termination benefits, other
than as required by law. Any outstanding equity-based compensation grants or
awards held by the Executive shall be governed by the terms of the plan under
which such grants or awards were made.
5.6 Other Benefits After Termination Date. Except for the payments and
benefits, if any, provided under this Article 5, no other benefits, compensation
or other remuneration of any type, whether taxable or nontaxable, shall be
payable to the Executive after his Termination Date, except as required by law
or by the applicable terms and provisions of any employee benefit plan
applicable to the Executive .
5.7 General Release. The Executive agrees that in the event of any
termination of this Agreement that results in a payment pursuant to any
provision of this Section 5, prior to the payment, as a condition to the receipt
of and as consideration for such payment, the Executive (or if due to death, the
executor or administrator of his estate) shall sign a general release of any and
all claims that the Executive, his heirs and assigns and/or his estate may have
against WGNB or the Bank or its related parties related to his employment and
such payment in substantially the form attached hereto as Exhibit "A".
6.
MISCELLANEOUS PROVISIONS
6.1 Invalidity of Any Provision. It is the intention of the parties
hereto that the provisions of this Agreement shall be enforced to the fullest
extent permissible under the laws of each state and jurisdiction in which such
enforcement is sought, but that the unenforceability (or the modification to
conform with such laws) of any provision hereof shall not render unenforceable
or impair the remainder of this Agreement which shall be deemed amended to
delete or modify, as necessary, the invalid or unenforceable provisions. The
parties further agree to alter the balance of this Agreement in order to render
the same valid and enforceable. The terms of the restrictive covenant provisions
of this Agreement shall be deemed modified to the extent necessary to be
enforceable and, specifically, without limiting the foregoing, if the term of
the applicable restrictive covenant is too long to be enforceable, it shall be
modified to encompass the longest term which is enforceable and, if the scope of
the geographic area of the applicable restrictive covenant is too great to be
enforceable, it shall be modified to encompass the greatest area that is
enforceable.
6.2 Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Georgia.
Page 14
6.3 Waiver of Breach. The waiver of a breach of any provision of this
Agreement by a party hereto shall not operate or be construed as a wavier of any
subsequent breach by the other party hereto.
6.4 Successors and Assigns. This Agreement shall inure to the benefit
of the Bank and its Affiliates, and their respective successors and assigns.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's estate and/or legal representatives.
6.5 Assignment of Agreement. This Agreement may not be assigned by any
of the parties without the express written consent of the other parties to this
Agreement; provided, however, that the provisions of this Agreement shall inure
to the benefit of and be binding upon each successor of the Bank, whether by
merger, consolidation, transfer of all or substantially all assets, or
otherwise.
6.6 Notices. All notices, demands and other communications hereunder
shall be in writing and shall be delivered in person or deposited in the United
States mail, certified or registered, with return receipt requested, as follows:
(a) If to the Executive: Xx. Xxxxxxx X. Xxxxxxxx.
000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
(b) If to the Bank: West Georgia National Bank
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000
c/o Chief Executive Officer
6.7 Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to the subject matter hereof. All understanding and
agreements heretofore made between the parties hereto with respect to the
subject matter of this Agreement are merged into this document which alone fully
and completely expresses their agreement. This Agreement may not be changed
orally but only by an agreement in writing signed by both parties.
6.8 Survival of Provisions. The provisions of Section 4 "Restrictive
Covenants" shall survive termination of this Agreement.
6.9 Application of Code Section 409A. It is the intent of the parties
to this Agreement that this Agreement shall be interpreted, construed and
operated in compliance with any applicable provisions of Code Section 409A. To
the extent that future regulations issued pursuant to Code Section 409A require
any amendments to this Agreement, the parties agree that they will consent to,
and make, such amendments.
6.10 Captions. The captions appearing in this Agreement are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of any provisions of this Agreement or in any way
affect this Agreement.
Page 15
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement under seal as of this 28th day of November, 2005.
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxx
WEST GEORGIA NATIONAL BANK
By: /s/ L. Xxxxxxxx Xxxxxx
---------------------------------------
L. Xxxxxxxx Xxxxxx
Chief Executive Officer
Page 16
EXHIBIT "A"
GENERAL RELEASE
IN ACCORDANCE WITH THE TERMS OF THAT CERTAIN EMPLOYMENT AGREEMENT DATED
________ ___, 0000, XXXXXXX Xxxx Xxxxxxx National Bank (THE "BANK") AND XXXXXXX
X. XXXXXXXX (THE "EXECUTIVE"), THE EXECUTIVE HEREBY ENTERS INTO THIS GENERAL
RELEASE, IN CONSIDERATION OF THE PAYMENTS AND BENEFITS THAT HE WILL RECEIVE AS A
RESULT OF HIS TERMINATION OF EMPLOYMENT EFFECTIVE AS OF ________________,
20____, TO WHICH HE WOULD NOT OTHERWISE BE ENTITLED, AS FOLLOWS:
THE EXECUTIVE AGREES, FOR HIMSELF, HIS SPOUSE, HEIRS, EXECUTOR OR
ADMINISTRATOR, ASSIGNS, INSURERS, ATTORNEYS AND OTHER PERSONS OR ENTITIES ACTING
OR PURPORTING TO ACT ON HIS BEHALF (THE "EXECUTIVE'S PARTIES"), TO IRREVOCABLY
AND UNCONDITIONALLY RELEASE, ACQUIT AND FOREVER DISCHARGE THE BANK AND WGNB,
THEIR AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS,
PARTNERS, AGENTS, REPRESENTATIVES, PREDECESSORS, SUCCESSORS, ASSIGNS, INSURERS,
ATTORNEYS, BENEFIT PLANS SPONSORED BY THE BANK AND WGNB AND SAID PLANS'
FIDUCIARIES, AGENTS AND TRUSTEES (THE "BANK'S PARTIES"), FROM ANY AND ALL
ACTIONS, CAUSE OF ACTION, SUITS, CLAIMS, OBLIGATIONS, LIABILITIES, DEBTS,
DEMANDS, CONTENTIONS, DAMAGES, JUDGMENTS, LEVIES AND EXECUTIONS OF ANY KIND,
WHETHER IN LAW OR IN EQUITY, KNOWN OR UNKNOWN, WHICH THE EXECUTIVE'S PARTIES
HAVE, HAVE HAD, OR MAY IN THE FUTURE CLAIM TO HAVE AGAINST THE BANK'S PARTIES BY
REASON OF, ARISING OUT OF, RELATED TO, OR RESULTING FROM EXECUTIVE'S EMPLOYMENT
WITH THE BANK OR THE TERMINATION THEREOF. THIS RELEASE SPECIFICALLY INCLUDES
WITHOUT LIMITATION ANY CLAIMS ARISING IN TORT OR CONTRACT, ANY CLAIM BASED ON
WRONGFUL DISCHARGE, ANY CLAIM BASED ON BREACH OF CONTRACT, ANY CLAIM ARISING
UNDER FEDERAL, STATE OR LOCAL LAW PROHIBITING RACE, SEX, AGE, RELIGION, NATIONAL
ORIGIN, HANDICAP, DISABILITY OR OTHER FORMS OF DISCRIMINATION, ANY CLAIM ARISING
UNDER FEDERAL, STATE OR LOCAL LAW CONCERNING EMPLOYMENT PRACTICES, AND ANY CLAIM
RELATING TO COMPENSATION OR BENEFITS. THIS SPECIFICALLY INCLUDES, WITHOUT
LIMITATION, ANY CLAIM WHICH THE EXECUTIVE HAS OR HAS HAD UNDER TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964, AS AMENDED, THE AGE DISCRIMINATION IN EMPLOYMENT ACT,
AS AMENDED ("ADEA"), THE AMERICANS WITH DISABILITIES ACT, AS AMENDED, AND THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED. IT IS UNDERSTOOD
AND AGREED THAT THE WAIVER OF BENEFITS AND CLAIMS CONTAINED IN THIS SECTION DOES
NOT INCLUDE A WAIVER OF THE RIGHT TO PAYMENT OF ANY VESTED, NONFORFEITABLE
BENEFITS TO WHICH THE EXECUTIVE OR A BENEFICIARY OF THE EXECUTIVE MAY BE
ENTITLED UNDER THE TERMS AND PROVISIONS OF ANY EMPLOYEE BENEFIT PLAN OF THE BANK
WHICH HAVE ACCRUED AS OF THE SEPARATION DATE AND DOES NOT INCLUDE A WAIVER OF
THE RIGHT TO BENEFITS AND PAYMENT OF CONSIDERATION TO WHICH THE EXECUTIVE MAY BE
ENTITLED UNDER THE EMPLOYMENT AGREEMENT. THE EXECUTIVE ACKNOWLEDGES THAT HE IS
ONLY ENTITLED TO THE SEVERANCE BENEFITS AND COMPENSATION SET FORTH IN THE
EMPLOYMENT AGREEMENT, AND THAT ALL OTHER CLAIMS FOR ANY OTHER BENEFITS OR
COMPENSATION ARE HEREBY WAIVED, EXCEPT THOSE EXPRESSLY STATED IN THE PRECEDING
SENTENCE.
This paragraph shall apply only if the Executive has
attained age 40 or over at the time of his termination of employment. The
Executive hereby acknowledges that he is knowingly and voluntarily waiving and
releasing any rights he may have under ADEA and that the consideration given
under the Employment Agreement for this General Release is in addition to
anything of value to which he was already entitled. He further acknowledges that
he has been advised by this writing, as required by the ADEA, that: (A) the
waiver and release do not apply to any rights or claims that may arise on or
after the date he executes this Release; (B) he has the right to consult with an
attorney prior to executing this Release; (C) he has twenty-one (21) days to
consider this Release (although he may choose to voluntarily execute this
Release earlier); (D) he has seven (7) days following his
Page 17
execution of this Release to revoke the Release; and (E) this Release shall not
be effective until the date upon which the revocation period has expired, which
shall be the eighth day after he executes this Release.
Agreed to, acknowledged and executed by the Executive
this ___________ day of ____________________, 20______.
----------------------------------
XXXXXXX X. XXXXXXXX
Page 18
EXHIBIT "B"
APPROVED INVESTMENTS PURSUANT TO SECTION 2.2
Page 19
