EXHIBIT 10.9
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), made and entered into as of August
30, 2000, by and between X. Xxxxx Xxxxx, Jr., a resident of the State of
Georgia (the "Executive") and PAB Bankshares, Inc., a bank holding company
organized under the laws of the State of Georgia ("Bankshares")
W I T N E S S E T H :
WHEREAS, the board of directors of Bankshares (the "Board of Directors")
desires Bankshares to employ the Executive, and the Executive desires to be
employed by Bankshares, on the terms and conditions set forth in this Agreement.
relationship;
NOW, THEREFORE, in consideration of the employment of the Executive by
Bankshares, of the premises and the mutual promises and covenants contained
herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Employment. Bankshares hereby employs the Executive, and the
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Executive hereby accepts such employment, on the terms and conditions set forth
in this Agreement. The Executive represents and warrants that he is not a
signatory to, or otherwise bound by, any agreement that would prevent or
materially impair his ability to accept and perform the employment duties
contemplated by this Agreement.
2. Term. Subject to the provisions of Sections 10 and 12 of this
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Agreement, the period of Executive's employment under this Agreement shall be
deemed to have commenced as of August 30, 2000 (the "Effective Date"), and shall
continue for a period of 24 calendar months thereafter and any extensions
thereof pursuant to the provisions of this Agreement (the "Term"), unless the
Executive dies before the end of such 24 month period (as extended), in which
case the Term shall continue until the end of the month of such death. The Term
of this Agreement shall automatically be extended for an additional
12-full-calendar-month period, without further action by the parties, commencing
on the first anniversary of the Effective Date of this
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Agreement and on each anniversary thereafter. No such automatic extension shall
occur if either party shall, at least 90 days prior to any said anniversary,
have served written notice upon the other of its intention that this Agreement
shall not be so extended.
3. Title, Office, Capacity, Duties and Responsibilities. The Executive
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shall hold the title and office of, and shall serve in the capacity or
capacities of, Vice President of Bankshares, having the duties and
responsibilities set forth in Section A of Appendix I attached hereto and such
other duties and responsibilities, consistent with such title and office, as may
be determined from time to time by the Board of Directors. During the Term, the
Executive shall devote his full time and best efforts, during normal business
hours, to the business and affairs of Bankshares, except for vacations, illness
or as otherwise agreed to by the Board of Directors and the Executive. Subject
to his election or appointment as such, the Executive agrees to serve during the
Term without additional compensation as an officer of any of Bankshares'
affiliates.
4. Place of Performance. The Executive shall be based and shall
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perform his duties at the offices of Bankshares set forth in Section B of
Appendix I attached hereto.
5. Compensation.
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(a) Base Salary. Subject to Section 10, during the Term, the
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Executive shall receive from Bankshares the annual base salary
set forth in Section C of Appendix I attached hereto (as in
effect from time to time, the "BASE SALARY"). The Base Salary
shall be payable in regular installments in accordance with the
customary executive payroll practices of Bankshares. The Board of
Directors shall review the Executive's Base Salary annually and
in its sole discretion may adjust the Executive's Base Salary
from year to year during the Term of this Agreement. The annual
adjustment of Base Salary, will be determined by the Board of
Directors, after taking into account, among other things, changes
in the cost of living, Executive's performance and the
performance of Bankshares. Any action or review by
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the Board of Directors may be delegated to an appropriate
committee thereof.
(b) Incentive Compensation. In addition to Base Salary and subject to
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Section 10, with respect to each fiscal year of Bankshares during
the Term, the Executive shall be eligible to earn and to accrue
incentive, or bonus, compensation (the "Bonus Amount"), as
determined by the Board of Directors from time to time.
6. Expenses. During the Term, the Executive shall be entitled to
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receive from Bankshares prompt reimbursement for all reasonable travel and
business expenses incurred by him (in accordance with the policies and
procedures established by the Board of Directors from time to time for
Bankshares' employees) in performing services hereunder, upon presentation of
expense statements or vouchers and such other information as Bankshares may
reasonably require.
7. Employee Benefits.
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(a) General. The Executive shall be entitled to participate in all
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Employee benefit plans, programs and arrangements of Bankshares,
now or hereafter made available to employees of Bankshares, as
such plans, programs and arrangements may be in effect from time
to time. Without limiting the foregoing, during the Term, the
Executive shall enjoy the benefits described in Section D of
Appendix I attached hereto. Without limitation of the Executive's
rights under Section 5(b) and Section 8, the compensation
committee of the Board of Directors or the Board of Directors
shall determine, from time to time, the extent to which the
Executive shall have the right to participate in other bonus,
incentive compensation, stock option or purchase plans.
Bankshares shall indemnify the Executive and hold the Executive
harmless from and against any claim, loss or cause of action
arising from or out of the Executive's
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performance as an officer, or Employee of Bankshares, or any of
Bankshares affiliates ,to the maximum extent permitted by law and
the articles of incorporation and bylaws of Bankshares, or any of
Bankshares affiliates. Bankshares shall maintain in full force
and effect directors' and officers' liability insurance, unless
the Board of Directors of Bankshares determines that the cost of
such insurance is not commercially reasonable when compared to
the coverage available.
(b) Vacations. The Executive shall be entitled to annual vacations in
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accordance with Bankshares' vacation policies in effect from time
to time for senior executives of Bankshares. The Executive shall
also be entitled to all paid holidays and personal days given by
Bankshares to its employees.
8. Stock Options. The Executive is granted or has previously been
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granted an option, or options, to purchase the number of shares of common stock
in Bankshares, set forth in Section E of Appendix I and including any future
options granted by the Board of Directors (the "OPTIONS"). The Options shall be
exercisable in the manner (in whole or in part, from time to time) and at the
price as established by the Board of Directors; provided however, if either (i)
a Change in Control has occurred as set forth in Section 12 of this Agreement;
or, (ii) this Agreement is terminated either (x) by Bankshares at any time for
any reason other than for Cause, as defined in Section 10 herein; or, (y) by the
Executive pursuant to Section 10(b) herein, all Options not previously vested
shall become fully vested and fully exercisable on the date of such event.
9. Restrictive Covenants and Confidentiality.
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(a) Non-competition and Non-solicitation.
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(i) For a period commencing with the date of termination of the
Executives' employment under this Agreement (the "EMPLOYMENT
TERMINATION DATE") and ending two years after the Employment
Termination Date (the
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"RESTRICTED PERIOD"), the Executive shall not, and shall not
permit any person subject to his direction or control to,
directly or indirectly, anywhere within Twenty Five (25) miles of
the offices of Bankshares, or any affiliate of Bankshares, at the
location set forth in Section B of Appendix I attached hereto
(the "TERRITORY"), engage in the business of banking or the
origination of commercial, real estate or consumer loans (the
"BUSINESS") or, whether alone or in association with others, as
principal, officer, agent, executive, director or stockholder of
any corporation, partnership, association or other entity, or
through the investment of capital; lending of money or property,
rendering of services or otherwise, engage, influence, control,
have an interest in, or otherwise become actively involved with,
any business which is competitive with the Business of
Bankshares, or any of its affiliates.
(ii) During the Restricted Period, the Executive shall not, and shall
not permit any of his respective affiliates, employees, agents or
others under his control to, directly or indirectly, on their own
behalf or on behalf of any other person, (A) call upon, accept
business from, or solicit the business of (or attempt to do any
of the foregoing) any customer of Bankshares, or any of its
affiliates, or any other person who is, or who had been at any
time during the preceding 12 months, a customer of Bankshares or
any of its affiliates in the Territory, (B) otherwise divert or
attempt to divert any business from Bankshares or any of its
affiliates operating in the Territory, (C) interfere with the
business relationships between Bankshares and any of its
affiliates operating in the Territory, on the one hand, and any
of its respective customers or others with whom they have
business relationships, on the other hand, or (D) recruit or
otherwise solicit or induce, or enter into or participate in any
plan or arrangement to cause, any
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person who is an employee of, or otherwise performing services
for, Bankshares or any of its affiliates to terminate his or her
employment or other relationship with Bankshares or such
affiliate, hire any person who has left the employ of Bankshares
or any of its affiliates during the preceding 12 months, or hire
any person who is or has been an executive officer of Bankshares
or any of its affiliates at any time.
(iii) The Executive shall not, at any time after his Employment
Termination Date, directly or indirectly, use or purport to
authorize any person to use any name, xxxx, logo, or other
identifying words or images which are the same as or similar to
those used currently or in the past by Bankshares or any of its
affiliates in connection with any product or service, whether or
not such use would be in a business which is competitive with
that of Bankshares or any affiliate of Bankshares.
(iv) The ownership or control of up to 5% of the outstanding voting
securities or securities of any class of a bank or bank holding
company shall not be deemed to be a violation of the provisions
of this Section 9(a).
(b) Confidential Information.
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(i) The Executive acknowledges that, in the course of his employment
with Bankshares, he will have, extensive contact with customers
of Bankshares and its affiliates, and to have knowledge of and
access to trade secrets and other proprietary and confidential
information of Bankshares and its affiliates, including, without
limitation, the identity of customers and suppliers and other
persons with whom Bankshares and its affiliates have business
relationships, technical information, knowhow, plans,
specifications, data and information relating to the financial
condition, results of operations, employees, products, products
under development, inventions, sources, leads or methods of
obtaining new products or
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business, pricing formulae, methods or procedures, cost of
services and marketing strategies of Bankshares or its
affiliates, or any other information relating to Bankshares or
its affiliates that could reasonably be regarded as confidential
or proprietary and which is not available to the public
(collectively, the "CONFIDENTIAL INFORMATION"), and that such
Confidential Information, even to the extent it may be, or have
been, developed or acquired by or through the efforts of the
Executive, constitutes valuable, special and unique assets of
Bankshares and its affiliates, developed or acquired at great
expense, which are the exclusive property of Bankshares and its
affiliates.
(ii) Executive agrees not to use, disclose or exploit, during the
Restricted Period, Confidential Information relating to the
Business of Bankshares, or any of its affiliates, (whether
constituting a trade secret or not) which is or has been
disclosed to Executive or of which Executive became aware as a
consequence of or through his relationship to Bankshares and
which has value to Bankshares, or any of its affiliates, and is
not generally known to its competitors. However, such
Confidential Information shall not include any data or
information that has been voluntarily disclosed to the public by
Bankshares, or any of its affiliates (except where such public
disclosure has been made by Executive without authorization) or
that has been independently developed and disclosed by others, or
that otherwise enters the public domain through lawful means.
(iii) Without limiting the generality of the foregoing, the Executive
shall not, during the Restricted Period, directly or indirectly,
disclose, or otherwise make known to any person, the names or
addresses of any of the customers of Bankshares or any of its
affiliates, whether such persons are customers as of the
Effective Date or become such following the Effective Date, and
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whether or not such persons have previously conducted business
with the Executive in any capacity, or any information as to
Bankshares' executives and others providing services to
Bankshares or any of its affiliates, including with respect to
their abilities, compensation, benefits and other terms of
employment or engagement.
(iv) Upon the termination of the Executive's employment with
Bankshares, the Executive shall promptly deliver to Bankshares
all customer files, correspondence, manuals, notes, notebooks,
reports and copies thereof, and all other materials relating to
Bankshares', or any of its affiliates business, including,
without limitation, any materials incorporating Confidential
Information, which are in the possession or control of the
Executive.
(v) The Executive acknowledges that Bankshares would not enter into
this Agreement without the assurances provided above with respect
to the Confidential Information of Bankshares and its affiliates.
(c) Continuing Obligations. The Executive acknowledges that
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Bankshares would be irreparably harmed and that monetary damages
would not provide an adequate remedy to it, in the event the
covenants contained in subsections (a) and (b) of this Section 9
were not complied with, in accordance with their terms.
Accordingly, the Executive agrees that any breach, or threatened
breach, by him of any provision of subsections (a) and (b) of
this Section 9 shall entitle Bankshares to injunctive and other
equitable relief to secure the enforcement of these provisions,
in addition to any other remedies which may be available to it;
and that it shall be entitled to receive from the Executive
reimbursement for all attorneys' fees and expenses incurred by it
in enforcing these provisions (unless Bankshares is not the
substantially prevailing party in any legal action
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brought for such purposes). In addition to its other rights and
remedies, Bankshares shall have the right to require the
Executive to account for, and to pay over to it, all
compensation, profits, money, accruals and other benefits derived
or received, directly or indirectly, by the Executive from any
action constituting a breach of subsection (a) or subsection (b)
of this Section 9. It is the desire and intent of the parties
that the provisions of this Section 9 be enforced in full;
however, if any provisions of this Section 9 relating to the time
period, scope of activities or geographic area of restrictions is
declared by a court of competent jurisdiction to exceed the
maximum permissible time period, scope of activities or
geographic area, the maximum time period, scope of activities or
geographic area, as the case may be, shall be reduced to the
maximum which such court deems enforceable. If any provisions of
this Section 9, other than those described in the preceding
sentence, are adjudicated to be invalid or unenforceable, the
invalid or unenforceable provisions shall be deemed amended (with
respect only to the jurisdiction in which such adjudication is
made) in such manner as to render them enforceable and to
effectuate as nearly as possible the original intentions and
agreement of the parties.
(d) Modification of Restrictive Period. In the event this
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Agreement is terminated either (x) by Bankshares at any time for
any reason other than for Cause, as defined in Section 10 herein
or (y) by the Executive pursuant to Section 10(b) herein, the
term "Restrictive Period," as described in Section 9(a), shall
terminate on the date that all amounts payable to the Executive,
pursuant to the terms of this Agreement, either, have been paid
to him, or should have been paid to him, pursuant to the terms of
this Agreement.
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10. Termination. During the Term of this Agreement, this Agreement and
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the Executive's employment with Bankshares and any affiliate of Bankshares,
including without limitation, except as otherwise provided in this Agreement,
including this Section 10, Section 8 and Section 12, all compensation, salary,
expense reimbursement, and other benefits, payable, or made available, to
Executive under this Agreement, may be terminated as follows:
(a) At the election of Bankshares for "Cause" (as such term is
defined below); or, at the election of Bankshares, without Cause,
for any reason, other than a breach by Bankshares as set forth in
Section 10(b) below, by delivery of 30 days' written notice;
(b) At the Executive's election, for "Good Reason" (as such term is
defined below); or upon Bankshares' breach of any material
provision of this Agreement;
(c) As used herein, the term "CAUSE" shall mean the occurrence of one
or more of the following:(i) a material breach by the Executive
of any provision of this Agreement which breach is not cured by
the Executive to Bankshares' reasonable satisfaction within ten
days after delivery of written notice to the Executive by
Bankshares thereof, (ii) the Executive's gross negligence,
willful misconduct or willful refusal or failure to perform, in
any material respect, any of his duties or responsibilities under
this Agreement, or the Executive's willful failure to follow any
lawful directive of the Board of Directors, or the President of
Bankshares, or the Executive's willful refusal or failure to
furnish information concerning Bankshares', or any affiliate of
Bankshares affairs which is reasonably requested by the Board of
Directors, or the President of Bankshares, which gross negligence
or willful action (or inaction), as the case may be, does not
cease, to Bankshares' or the President of Bankshares, reasonable
satisfaction, within ten days after delivery of written notice
thereof to
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Executive by Bankshares, (iii) the Executive's conviction of a
felony or of a serious misdemeanor (e.g., involving moral
turpitude, etc.), in any criminal proceeding; (iv) the
Executive's intentional and knowing misappropriation, for
personal use, of assets or business opportunities of Bankshares,
or any of its affiliates; (v) the Executive's engaging in
intentional misconduct that is materially injurious to
Bankshares, or any of its affiliates, including, but not limited
to, such misconduct which is in contravention of any federal or
state employment law or regulation, as determined by a court of
competent jurisdiction, (vi) a petition under the Bankruptcy Code
(Title 11 of the United States Code) or any state insolvency law,
containing a meritorious claim, has been filed by or against the
Executive, or any receiver or similar officer has been appointed
by a court for the Executive's property, or (vii) any event,
condition or circumstance which, pursuant to the provisions of
federal or state law, renders the Executive unemployable, as a
matter of law, by Bankshares, or any of its affiliates.
(d) Upon the Executive's death, or, at the election of either party,
upon the Executive's disability, as determined in accordance with
the standards and procedures under the Executive's then current,
long-term disability insurance coverage provided by Bankshares,
or, if such disability insurance coverage provided by Bankshares
is not then in place, upon the Executive's disability resulting
in inability to substantially perform the duties described in
Section 3 of this Agreement for a period of 180 consecutive days.
(e) At the Executive's election, by delivery of the 30 days' written
notice thereof, for any reason, other than as set forth in
Section 10(b) of this Agreement.
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(f) The term "GOOD REASON" shall mean action taken by Bankshares
which results in:
(i) a material change in the Executive's status, offices, titles, or
reporting requirements;
(ii) a reduction in the Executive's Base Salary or other benefits; or
(g) Subject to the provisions of Section 12 of this Agreement, if
this Agreement is terminated, either (i) by Bankshares, at any
time, for any reason other than for Cause, or (ii) by the
Executive pursuant to Section 10(b) (i.e., for Good Reason or
upon Bankshares' breach of any material provision of this
Agreement), then Bankshares, in addition to any other
compensation or benefit payable to, or vesting in, Executive, as
a result of the termination of the Agreement, as contemplated by
this Section 10(g), shall pay to the Executive the compensation
and benefits remaining under this Agreement, at a rate equal to
the Executive's Base Salary and Bonus Amount for the previous 12
months, for a period equal to the greater of either (y) the
remaining Term of this Agreement, or (z) 12 months, as if no
termination occurred.
(h) If the Agreement is terminated, either for Cause or by the
Executive pursuant to Section 10(e) of this Agreement, the
Executive shall receive no further compensation or benefits under
this Agreement, other than the Executive's Base Salary, accrued
through the date of such termination.
11. Notices. All notices provided for herein shall be in writing and
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shall be deemed to be given when delivered in person or deposited in the United
States Mail, registered or certified, return receipt requested, with proper
postage prepaid and addressed as follows:
Bank: PAB Bankshares, Inc.
0000 Xxxxx Xxx Xxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxx 00000
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Attn: Chairman of the Compensation Committee
of the Board of Directors
with a copy to: Xxxxxxxx Xxxxxx, Jr., Esquire
Coleman, Talley, Newbern, Kurrie, Preston & Xxxxxxx
X.0 Xxx 0000
Xxxxxxxx, Xxxxxxx 00000
Executive: X. Xxxxx Xxxxx
000 Xxxxx Xx.
XxXxxxxxx, XX 00000
12. Change in Control. None of the benefits provided in this Section
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12 of this Agreement shall be payable to the Executive, unless there shall have
been a Change in Control, as set forth below.
(a) A "CHANGE IN CONTROL" shall be deemed to have occurred if (i)
during the Term of this Agreement, the individuals constituting
the Board of Directors at the Effective Date of this Agreement
(the "BEGINNING PAB BOARD") cease for any reason to constitute at
least a majority of the Board of Directors, provided that in
making such determination, a director elected by, or on the
recommendation of, the Beginning PAB Board shall be deemed to be
a member of such Beginning PAB Board, excluding, for this
purpose, any director whose assumption of office occurs as a
result of an actual or threatened election contest, or proxy
contest, with respect to the election or removal of directors;
or, (ii) more than 50% of Bankshares' outstanding common stock,
or of the equivalent in voting power of any other class or
classes of outstanding securities of Bankshares entitled to vote
in elections of directors, shall be acquired by any corporation,
other person or group (the term "group" shall mean persons who
act in concert as described in Section 13(d)(3) or 14(d) (2) of
the Securities Exchange
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Act of 1934 as amended); or, (iii) Bankshares shall become a
subsidiary of another corporation or shall be merged or
consolidated into another corporation and (x) less than a
majority of the outstanding voting shares of the parent or
surviving corporation after such acquisition, merger or
consolidation are owned immediately after such acquisition,
merger or consolidation by the owners of the voting shares of
Bankshares immediately before such acquisition, merger or
consolidation, or (y) a person or entity (excluding any
corporation resulting from such business combination or any
employee benefit plan or related trust of Bankshares or such
resulting corporation) beneficially owns or controls 25% or more
of the combined voting power of the then-outstanding securities
of such corporation, except to the extent that such ownership
existed prior to the business combination, or (z) less than a
majority of the members of the board of directors of the
corporation resulting from such business combination were members
of the Bankshares Board of Directors at the time of the execution
of the definitive agreement for such merger or consolidation; or,
(iv) substantially all of the assets of Bankshares shall be sold
to another entity, person or group, other than a sale to a
wholly-owned subsidiary of Bankshares, regardless of the form of
the transaction.
(b) In the event of a Change in Control of Bankshares, the Executive
shall be entitled, for a period of 90 days after the date of
closing of the transaction effecting such Change in Control, and
at his election, to either (i) deliver written notice to
Bankshares of the termination of this Agreement, whereupon
Bankshares will continue to pay the Executive's Base Salary for
six months after termination; provided that all other benefits or
compensation, including incentive compensation shall be
terminated as of the termination of this Agreement; or, (ii)
deliver written notice to
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Bankshares that he intends to remain in the employ of Bankshares
and Bankshares shall employ the Executive, for the remainder of
the Term of this Agreement, or 12 months, whichever is greater,
performing the same duties that he was performing at the time of
the effective date of the Change in Control and with the same
title, compensation, benefits, reporting requirements and
location. Any extension of employment under this Section 12(b)
shall be deemed an extension of the Term of this Agreement,
during which all provisions of this Agreement shall remain in
effect.
(c) Subject to the terms and conditions of this Agreement, the
Executive shall receive the compensation set forth in Section
12(c)(i) of this Agreement in consideration for the services
previously provided, or to be provided, on behalf of Bankshares
as set forth herein.
(i) If Bankshares terminates the Executive without Cause, or if any
action specified in Section 12(c)(ii) of this Agreement occurs
during the Term of this Agreement, at any time following the
execution of the definitive agreement relating to (but before the
occurrence of) a Change in Control, or at any time following the
occurrence of a Change in Control, (the "TERMINATION OF
EMPLOYMENT"), Bankshares shall pay the Executive a lump-sum cash
payment in an amount equal to the Executive's annual compensation
from Bankshares, including salary, bonuses, all perquisites, and
all other forms of compensation paid to the Executive for his
benefit or the benefit of his family, however characterized, for
the fiscal year during the term of this Agreement for which such
compensation was highest (the "EXECUTIVE'S ANNUAL SALARY"). The
payment provided for in this Section 12(c)(i) shall be due and
payable to the Executive within 30 days after the date of the
Termination of Employment.
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(ii) For purposes of this Section 12, the occurrence of any of the
following actions shall be deemed to be a termination of this
Agreement by Bankshares without Cause. Those actions are: (1) a
reduction in the Executive's salary, bonus provisions or other
perquisites as were in effect immediately prior to the time
period contemplated in Section 12(c)(i) regarding a Change in
Control of Bankshares, (2) a material change in the Executive's
status, offices, titles, reporting requirements, duties or
responsibilities with Bankshares, as in effect on the effective
date of this Agreement, (3) the failure by Bankshares to increase
the Executive's salary annually in accordance with an established
procedure, (4) Bankshares' requirement that Executive relocate
more than 50 miles from the offices of Bankshares at the location
set forth in Section B of Appendix I attached hereto, or (v) the
termination of this Agreement by Executive pursuant to Section
10(b) hereof. In any such event, Executive shall be entitled to
all payments provided for in Section 12(c)(i) of this Agreement.
(d) Notwithstanding any other provision of this Section 12 of this
Agreement, in no event shall Bankshares pay or be obligated to
pay the Executive an amount which would be an Excess Parachute
Payment. The term "Excess Parachute Payment" shall mean any
payment or any portion thereof which would be an "excess
parachute payment" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), and would
result in the imposition of an excise tax under Section 4999 of
the Code, in the opinion of tax counsel selected by Bankshares'
independent accountants and acceptable to the Executive. If it is
established pursuant to a final determination of a court or an
Internal Revenue Service administrative appeals proceeding that,
notwithstanding the good faith of the Executive and Bankshares in
applying the terms of this Section 12 of
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the Agreement, a payment (or portion thereof made is an Excess
Parachute Payment, then, except as hereafter provided, the
Executive shall have the obligation to repay Bankshares upon
demand an amount equal to the minimum amount (but without
interest) necessary to insure that no payments made or to be made
by Bankshares pursuant to this Section 12 of the Agreement is an
Excess Parachute Payment; provided, however, that if, in the
opinion of tax counsel selected by Bankshares' independent
accountants and acceptable to the Executive, such repayment will
not ensure that no Excess Parachute Payment would be made
hereunder, then (1) no such repayment obligation will exist and
(2) Bankshares shall pay to the Executive an additional amount in
cash equal to the amount necessary to cause the amount of the
aggregate after tax cash compensation and benefits otherwise
receivable by the Executive to be equal to the aggregate after
tax cash compensation and benefits he would have received, as if
Sections 280G and 4999 of the Code had not been enacted.
13. Resolution of Disputes: Arbitration.
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(a) Except as contemplated in Section 9, Bankshares and the Executive
shall use their best efforts to resolve any dispute, controversy
or claim between them with respect to any matter related to or
arising out of this Agreement (each, a "Dispute") through
negotiation. Such negotiation shall begin immediately after a
party has delivered to the other party a written request for such
negotiation. If within 60 days following the date on which such
notice is given, the parties fail to resolve the dispute through
such negotiations, then either party may initiate an arbitration
proceeding in accordance with this Section 13.
(b) Subject to Section 13(a), any Dispute shall be referred to and
finally resolved by arbitration administered by the American
Arbitration
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Association (the "AAA") in accordance with the Commercial
Arbitration Rules of the AAA and the provisions of this Section
13, before a single arbitrator to be appointed by the mutual
consent of Bankshares and the Executive. In the event that the
parties cannot agree on an arbitrator, the parties agree that the
AAA shall designate an arbitrator. The arbitration proceedings
shall be held in Valdosta, Georgia.
(c) The arbitrator shall decide the Dispute in accordance with this
Agreement and the laws of the State of Georgia applicable to
agreements made and to be performed entirely within such State.
The decision of the arbitrator shall be in writing and presented
in separate findings of fact and law. The award of the arbitrator
shall be final and binding on the parties from which no appeal
may be taken, and an order confirming the award or judgment upon
the award may be entered into in any court having jurisdiction
there over.
(d) Prior to the appointment of the arbitrator, Bankshares or the
Executive may take provisional remedies, including, without
limitation, temporary restraining orders and preliminary
injunctions. After the appointment of the arbitrator, the
arbitrator shall have sole authority to grant such provisional
remedies as the arbitrator, in its sole discretion, deems
necessary and appropriate.
(e) The arbitrator, in the award, may assess the fees and expenses of
the arbitrator and of the arbitration proceeding, and the witness
and attorneys' fees of the parties, or any part thereof, against
either Bankshares or the Executive or both of them, taking into
account the circumstances of the case. Except as assessed by the
arbitrator in the award and as provided in the next succeeding
sentence, Bankshares and the Executive shall each
Employment Agreement
Page 18
bear their own costs in connection with the arbitration
proceeding, and shall each bear 50% of the fees and expenses of
the arbitrator.
14. Miscellaneous.
-------------
(a) Modification, Waiver, etc. No provision of this Agreement may be
--------------------------
modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing signed by the Executive and
a duly authorized officer of Bankshares. No waiver by any party
hereto at any time of any breach of another party hereto of, or
compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time. This Agreement shall be binding on
and inure to the benefit of the successors and assigns of
Bankshares.
(b) Withholding Taxes. Bankshares may withhold from amounts payable
------------------
under this Agreement such Federal, state and local taxes as are
required to be withheld pursuant to any applicable law or
regulation and Bankshares shall be authorized to take such action
as may be necessary in the opinion of Bankshares' counsel
(including, without limitation, withholding from amounts from any
compensation or other amount owing from Bankshares to Executive)
to satisfy all obligations for the payment of such taxes.
(c) Continuation of Employment. Unless the parties otherwise agree in
--------------------------
writing, continuation of Executive's employment with Bankshares
beyond the expiration of the Term shall be deemed an employment
at will and shall not be deemed to extend any of the provisions
of this Agreement, and Executive's employment may thereafter be
terminated at will by Executive or Bankshares without further
obligation of either party hereunder.
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(d) Governing Law. The validity, interpretation, construction and
--------------
performance of this Agreement shall be governed by the laws of
the State of Georgia applicable to agreements made and to be
performed entirely in Georgia, without regard to the conflict of
laws principles of such State. The Superior Court, Lowndes
County, Georgia, shall have jurisdiction and of the venue for any
civil actions arising from the subject matter of this agreement.
(e) Assignment. This Agreement is a personal contract, and the rights
----------
and interests of the Executive hereunder may not, during the
Term, be sold, transferred, assigned, pledged or hypothecated.
This Agreement may be assigned by Bankshares to a Bank organized
under the laws of one of the States of the United States which is
wholly-owned or controlled directly or indirectly by Bankshares,
or which is a successor-in-interest to substantially all of the
business operations of Bankshares. Such assignment shall become
effective when Bankshares, shall have notified the Executive of
such assignment or at such later date as may be specified in such
notice. Upon such assignment the rights and obligations of
Bankshares, hereunder shall become the rights and obligations of
such Bank, and Bankshares shall have no further rights or
obligations hereunder; provided, however, that Bankshares shall
guarantee the obligations of such Bank to the Executive under
this Agreement.
(f) Severability of Invalid or Unenforceable Provisions. The
--------------------------------------------------------
invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full
force and effect.
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(g) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original,
but all of which together will constitute one and the same
instrument.
(h) Definition of Terms. The term "affiliate", when used in this
---------------------
Agreement with respect to any person, means any person that,
directly or indirectly, controls, is controlled by or is under
common control with such person, and with respect to any natural
person, includes the members of such person's immediate family
(spouse, children and parents). The term "person", when used in
this Agreement, means any natural person or entity with legal
status.
(i) Entire Agreement. This Agreement, together with Appendix 1, sets
-----------------
forth the entire agreement of the parties hereto in respect of
the subject matter contained herein and supersedes all prior
agreements, understandings, promises, covenants, arrangements and
communications, both oral or written, among the parties hereto in
respect of the subject matter contained herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
"Executive"
/s/ X. Xxxxx Xxxxx, Jr.
-----------------------------------
X. Xxxxx Welsh, Jr.
"Bankshares"
PAB Bankshares, Inc.
/s/ R. Xxxxxxxx Xxxxxxxx
-----------------------------------
R. Xxxxxxxx Xxxxxxxx, President
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Appendix I to Employment Agreement
between M Xxxxx Xxxxx, Xx., and PAB Bankshares, Inc. (the "Employment
Agreement")
Capitalized terms used herein shall have the meanings set forth in the
Employment Agreement.
A. Title, Office, Duties and Responsibilities.
----------------------------------------------
Vice President PAB Bankshares
and President Park Avenue Bank of Xxxxx County
Description of duties and responsibilities Attachment 1
B. Place of Performance.
----------------------
McDonough, Georgia or such other place as Bankshares and the Executive
mutually agree.
C. Compensation.
------------
Annual Base Salary: $100,000
Bonus Amount: Up to 22% of the Annual Base Salary, subject
ot the provisions and Conditions of the Incentive
Compensation Plan established by the Board of
Directors.
D. Benefits.
--------
During Executive's employment, Bankshares shall furnish to Executive
the following:
1. Automobile allowance of $600 per month
2. Four (4) weeks paid vacation
3. Social club dues
4. Such other benefits as may be approved by the Board of Directors
E. Options.
-------
Employee is granted options to purchase 3,000 shares of PAB
Bankshares, Inc. common Stock, subject to the terms and conditions of
the PAB Bankshares, Inc. 1999 Stock Option Plan. The right to purchase
the optioned shares shall vest in equal amounts of 600 Shares each
commencing August 1, 2001 and each August 1 thereafter until and
including August 1, 2005.
Employment Agreement
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Attachment 1
JOB DESCRIPTION
POSITION: President, The Park Avenue Bank of Xxxxx County
Vice President PAB Bankshares
REPORTS TO: President of the Xxxx Xxxxxx Xxxx, Xxxxxxxx, XX. for all credit
decisions. Senior Officers of PAB Bankshares on all matters pertaining
to operations, accounting, human resources
DUTIES:
Senior commercial lender for south Metro Atlanta area.
Underwrite and approve all types of Retail, Construction, Acquisition &
Development, and Commercial credit requests within lending authority.
Supervision in staffing of all South Metro Atlanta area branches.
Senior Business Development Officer for Metro Atlanta Area.
Select sites for additional Metro Atlanta Area branch locations.
Supervise pricing for all deposit and credit services for Xxxxx County and
other metro Atlanta area branches.
Form and administrate a local advisory board for The Park Avenue Bank of
Xxxxx County.
Employment Agreement
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