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EXHIBIT 10(s)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into on August
31, 1998, by and between XXXXXX X. XXXX (the "Employee") and OFC CAPITAL
CORPORATION, a Georgia corporation (the "Company"), pursuant to the Agreement,
Plan of Reorganization and Plan of Merger dated August 31, 1998, by and among
First Liberty Financial Corp., ("FLFC"), FLFC Subsidiary, Inc. ("FLFCS"), the
Company and the Employee (the "Merger Agreement").
W I T N E S S E T H:
WHEREAS, the Company is and, for a number of years, has been engaged in the
equipment leasing business (the "Business");
WHEREAS, pursuant to the terms of the Merger Agreement, the Company initially
will become a wholly-owned subsidiary of FLFC and then will become a subsidiary
of FLFC's subsidiary, First Liberty Bank ("FLB");
WHEREAS, the Employee, immediately prior to the consummation of the transactions
contemplated by the Merger Agreement, served as the President of the Company and
was its sole stockholder; and
WHEREAS, the Company desires to retain the Employee as the President and Chief
Executive Officer of the Company and the Employee wishes to be employed in that
capacity on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the compensation and other benefits
to be paid to the Employee as set forth in this Agreement, the consideration
paid to the Employee as the "Stockholder" under the Merger Agreement, the mutual
covenants and agreements herein contained, and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT AND POSITION. The Company hereby employs the Employee as its
President and Chief Executive Officer, to serve in the Company's current office
location or any future office location in the metropolitan Atlanta, Georgia
area. As such, the Employee shall be responsible for the management of the
Company, subject to the direction of its Board of Directors.
2. TERM. The employment term is three (3) years, beginning on the date of
this Agreement and ending on August 31, 2001, unless extended by the parties.
3. COMPENSATION. Within five (5) days after the date of this Agreement, the
Company shall pay to the Employee a one-time signing bonus in the amount of
$10,000.00, which will be paid subject to withholding and other applicable
taxes. As compensation for the services to be rendered hereunder, the Employee
shall receive an annual salary of $125,000.00, payable in periodic installments
in accordance with the Company's normal payroll practices. The Employee will
receive annual performance reviews and possible salary increases, the first such
performance review occurring on or about the first anniversary date of this
Agreement.
4. STOCK OPTIONS. Within five (5) days after the date of this Agreement, the
Company shall cause to be delivered to the Employee an Incentive Stock Option
Agreement pursuant to FLFC's 1992 Stock Incentive Plan in the form attached
hereto as Exhibit A. As an executive officer of FLFC, the Employee shall be
eligible to receive additional stock option grants from time to time on the same
basis as such options are granted to other executive officers
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generally.
5. BENEFITS. The Employee shall be eligible to participate in FLFC's Performance
Excellence Plan, the terms of which have previously been provided to the
Employee and which provides the opportunity for a participating employee to
receive a percentage of annual salary in the form of incentive compensation for
the accomplishment of certain goals described in such plan. In addition, the
Employee shall be entitled to participate in any employee benefit plans
(including, but not limited to, any life insurance, disability, medical, dental,
hospitalization, savings, retirement and other benefit plans of FLFC) then in
effect for executive officers of FLFC and receive any other fringe benefits that
FLFC then provides to its executive officers. In addition to the above, the
Company shall pay the dues for the Employee's country club membership and the
cost of an annual physical examination for the Employee on the same basis then
in effect for executive officers of FLFC. Further, the Employee shall receive an
automobile allowance of $350 per month during the Initial Term and will be
reimbursed at a rate of $0.15 per mile when conducting business on behalf of the
Company.
6. BUSINESS EXPENSES. The Employee may incur reasonable expenses in
connection with his duties hereunder, including expenses for business travel,
meals, lodging and similar items. The Company will reimburse the Employee for
all such reasonable and necessary expenses upon the Employee's periodic
presentation of an itemized and documented account of such expenditures and in
accordance with the Company's expenses reimbursement policies which are in
effect at the time the expense is incurred.
7. TERMINATION. The Company may terminate the Employee's employment under
this Agreement at any time. If such termination is for cause, the Employee shall
not be entitled to receive any further compensation from the Company. If such
termination is without cause, the Employee shall be entitled to receive
compensation at his then current salary for a period of six (6) months from the
date of such termination, and the restrictions on competition and solicitation
contained in Section 9 of this Agreement shall terminate as of that date.
Termination for cause shall include termination due to the Employee's personal
dishonesty, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, or regulation (other than traffic violations or similar offenses) or
final cease-and-desist order, or material breach of any provision of this
Agreement.
8. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. The Employee acknowledges that he
has had access to and intimate knowledge of (i) confidential information
relative to the Company, including but not limited to information about the
business practices and customers of the Company, type and volume of the
Company's business, the Company's customers, and all information contained in
the books and records of the Company. The Employee further acknowledges and
agrees that because of his employment pursuant to this Agreement, he will
continue to have access to confidential or proprietary information of the
Company concerning or relative to the Business of the Company which includes,
without limitation, technical material of the Company, sales and marketing
information, customer account records, billing information, training and
operations information, materials and memoranda, personnel records, pricing and
financial information relating to the business, accounts, customers, prospective
customers, employees and affairs of the Company, (all such information is
collectively referred to herein as the "Confidential Company Information"). The
Employee acknowledges and agrees that the Confidential Company Information is
and shall be the property of the Company. The Employee agrees that during the
term of his employment and for a period of three (3) years thereafter, the
Employee shall keep confidential all Confidential Company Information and shall
not use or disclose the Confidential Company Information for any reason other
than on behalf of the Company.
9. COVENANT NOT TO SOLICIT OR COMPETE. The Employee acknowledges and agrees that
because of his position as the President of the Company he has (i) intimate
knowledge of the Company's Business including, but not limited to, knowledge of
the Confidential Company Information, and (ii) knowledge of and relationships
with the equipment vendors, banks and other financing sources, lease brokers,
customers, and various other parties with which the Company has conducted
Business (collectively, the " Company Business Contacts") The Employee agrees
and acknowledges that such knowledge, access, and relationships are such that if
the Employee were to compete with the Company by terminating his employment
prior to the expiration of the term hereof and thereafter soliciting Company
Business Contacts or employees, the benefits that FLFC and FLFCS bargained for
under the
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Merger Agreement would be severely and irreparably damaged. Further, the
Employee acknowledges and agrees that this Agreement and the term hereof, and
the covenants not to solicit or compete contained herein, were a fundamental
element of the transactions contemplated by the Merger Agreement and that the
transactions contemplated therein would not have been consummated in the absence
of this Agreement. Accordingly, the Employee agrees that during the term of his
employment by the Company and for a period of three (3) years after (x) the
termination of this Agreement by the Employee prior to the expiration of its
term, or (y) the termination of the Employee's employment by the Company for
cause, the Employee shall not, directly or indirectly, either individually, in
partnership, jointly, or in conjunction with, or on behalf of, any person, firm,
partnership, corporation, or unincorporated association or entity of any kind
(except on behalf of or with the express authorization of FLFC or the Company,
do any of the following things:
(a) Solicit or contact any Company Business Contact (without regard to
location) for the purpose of providing services or doing business that is the
same as, or substantially similar to, those provided by the Company in
connection with the Business.
(b) Solicit, induce or encourage any Company Business Contact (without
regard to location) to terminate or modify any business relationship with the
Company.
(c) Persuade or attempt to persuade any person who is employed by the
Company at the time of such contact to terminate or modify his or her employment
relationship with the Company, whether or not such relationship is pursuant to a
written agreement.
(d) Employ any person who was employed by the Company within one year prior
thereto to engage in the Business.
The restrictions set forth in this Section 9 shall terminate if (i) there
shall occur a change in control of FLFC, FLB or the Company during the term of
this Agreement, i.e., the acquisition of more than 24.9% ownership by a party,
unless the acquiring party offers the Employee continued employment in the same
or a comparable position as that provided for in this Agreement; or (ii) the
Employee's employment is terminated without cause.
10. REMEDY FOR BREACH. The Employee acknowledges and agrees that his breach of
any of the covenants contained in Sections 8 and 9 of this Agreement would cause
irreparable injury to the Company and that remedies at law of the Company for
any actual or threatened breach by the Employee of such covenants would be
inadequate and that the Company shall be entitled to specific performance of the
covenants in such sections or injunctive relief against activities in violation
of such sections, or both, by temporary or permanent injunction or other
appropriate judicial remedy, writ or order, without the necessity of proving
actual damages. This provision with respect to injunctive relief shall not
diminish the right of the Company to claim and recover damages against the
Employee for any breach of this Agreement in addition to injunctive relief. The
Employee acknowledges and agrees that he will be responsible for all legal
expenses, including attorneys' fees, which the Company incurs in pursuing
remedies, whether legal or equitable, for any breach of the covenants contained
in Sections 8 and 9 of this Agreement by the Employee. The Employee acknowledges
and agrees that the covenants contained in Sections 8 and 9 of this Agreement
shall be construed as agreements independent of any other provision of this or
any other contract or agreement between the parties hereto, and that the
existence of any claim or cause of action by the Employee against the Company,
whether predicated upon this or any other contract or agreement, shall not
constitute a defense to the enforcement by the Company of said covenants.
11. REASONABLENESS. The Employee has carefully considered the nature and extent
of the restrictions upon him and the rights and remedies conferred on the
Company under this Agreement, and the Employee hereby acknowledges and agrees
that:
(a) the restrictions and covenants contained herein, and the rights and
remedies conferred upon the Company, are necessary to protect the goodwill and
other value of the Business of the Company, and the benefits bargained for by
FLFC and FLFCS under the Merger Agreement;
(b) the restrictions placed upon the Employee hereunder are narrowly drawn,
are fair and reasonable
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in time and territory, will not prevent him from earning a livelihood, and place
no greater restraint upon the Employee than is reasonably necessary to secure
the goodwill and other value of the Business of the Company, and the benefits
bargained for by FLFC and FLFCS under the Merger Agreement.
12. 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 and public policies of each state and jurisdiction in
which such enforcement may be sought, but that the unenforceability (or the
modification to conform with such laws or public policies) 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.
13. APPLICABLE LAW. This Agreement shall be construed and enforced in accordance
with the laws of the State of Georgia.
14. WAIVER OF BREACH. The waiver by the Company of a breach of any provision of
this Agreement by the Employee shall not operate or be construed as a waiver by
the Company of any subsequent breach by the Employee.
15. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of the
Company, FLFC, and FLB, and their respective successors and assigns. This
Agreement is not assignable by the Employee but is assignable by the Company.
16. 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:
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If to the Employee, to:
Xx. Xxxxxx X. Xxxx
0000 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
If to the Company, to:
OFC Capital Corporation
c/o First Liberty Bank
000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
17. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties with respect to the matters contained herein. It may not be changed
orally but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension, or discharge is
sought.
18. APPLICABLE LAW. This Agreement shall be construed according to the laws
of the State of Georgia.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first mentioned above.
OFC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Sole Director
/s/ Xxxxxx X. Xxxx (SEAL)
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XXXXXX X. XXXX
