EXHIBIT 10.8
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 1st day of January, 1998, by and between PREMIER BANCSHARES, INC.
("Employer"), and XX X. XXXX.
W I T N E S S E T H:
WHEREAS, the Board of Directors of Employer consider the establishment
and maintenance of highly competent and skilled management personnel for
Employer to be essential to protecting and enhancing its best interests;
WHEREAS, the Board of Directors of Employer is desirous of inducing
Employee to remain in the employ of Employer, subject to the terms and
conditions hereof;
WHEREAS, Employee is
desirous of remaining in the employ of Employer, subject to the terms and
conditions hereof; and
WHEREAS, the parties agree that the provisions of this Agreement shall
control with respect to the rights and obligations of the parties resulting from
the employment of Employee by Employer;
NOW, THEREFORE, for and in consideration of the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definitions. The following terms used in this Agreement shall have
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the following meanings:
(a) "Base Salary" shall mean the annual compensation (excluding
Incentive Compensation as defined in (e) of this paragraph and other
benefits) payable or paid to Employee pursuant to paragraph 4(a) of this
Agreement.
(b) "Change of Control" shall be deemed to have occurred if:
(i) Upon the consummation of any transaction in which any person
(or persons acting in concert), partnership, corporation, or other
organization shall own, control, or hold with the power to vote more
than fifty percent (50%) of any class of voting securities of the
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Holding Company; or
(ii) Upon the consummation of any transaction in which Employer,
or substantially all of the assets of Employer, shall be sold or
transferred to, or consolidated or merged with, another corporation;
provided, however, if Employer shall become a subsidiary of another
corporation or shall be merged or consolidated into another corporation and
a majority of the outstanding voting shares of the parent or surviving
corporation are owned immediately after such acquisition, merger, or
consolidation by the owners of a majority of the voting shares of Employer
immediately before such acquisition, merger, or consolidation, then no
Change of Control shall be deemed to have occurred.
(c) "Disability" shall mean the complete inability of Employee to
perform her duties for Employer under this Agreement on a full-time basis,
as determined by an independent physician selected with the approval of
Employer and Employee.
(d) "Event of Termination" shall mean the termination by Employer of
Employee's employment under this Agreement by written notice delivered to
Employee for any reason other than Termination for Cause as defined in (f)
of this paragraph or termination
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following a continuous period of disability exceeding six (6) calendar
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months pursuant to paragraph 6(a) of this Agreement.
(e) "Incentive Compensation" shall mean that compensation payable or
paid to Employee pursuant to paragraph 4(b) of this Agreement.
(f) "Termination for Cause" shall have the meaning provided in
paragraph 7(a) of this Agreement.
2. Employment. Employer agrees to continue Employee in their employ, and
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Employee agrees to remain in the employ of Employer, as Executive Vice President
of Employer, for the period stated in paragraph 3(a) hereof and upon the other
terms and conditions herein provided. Employee agrees to perform faithfully such
services as are reasonably consistent with her positions and shall from time to
time be assigned to her by the Board of Directors of Employer in a trustworthy
and businesslike manner for the purpose of advancing the interests of Employer.
At all times, Employee shall manage and conduct the business of Employer in
accordance with the policies established by the Board of Directors of Employer,
and in compliance with applicable regulations promulgated by governing
regulatory agencies. Responsibility for the supervision of Employee shall rest
with the Board of Directors of Employer, which shall review Employee's
performance at least annually. The Board of Directors of Employer shall also
have the authority to terminate Employee, subject to the provisions outlined in
paragraph 7 of this Agreement.
3. Term and Duties.
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(a) Term of Employment. This Agreement and the period of Employee's
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employment under this Agreement shall be deemed to have commenced as of the
Effective Date and shall continue for a period of twelve (12) full calendar
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months thereafter, unless earlier terminated pursuant to this Agreement or
unless Employee dies before the end of such
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twelve (12) month period provided that the Board of Directors of Employer
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determines that the performance of Employee has met said Board's
requirements and standards and further that this Agreement shall be
extended.
(b) Performance of Duties. During the period of employment hereunder,
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except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote substantially all of
her business time, attention, skill, and efforts to the faithful
performance of her duties hereunder. Employee shall be entitled to
reasonable participation as a member in community, civic, or similar
organizations and the pursuit of personal investments which do not present
any material conflict of interest with Employer, or otherwise unfavorably
affect the performance of Employee's duties pursuant to this Agreement.
Employee may be asked, form time to time, to serve as an officer or
director of any subsidiary of Employer but shall be entitled to no
additional compensation for such services.
(c) Office of Employee. The office of Employee shall be located at
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the principal office of Employer in Atlanta, Georgia, or at such other
location within the State of Georgia as Employer may from time to time
designate; provided, however, that, in the event such relocation requires
Employee to move her principal residence, Employer shall reimburse Employee
for all her reasonable moving expenses.
(d) No Other Agreement. Employee shall have no employment contract or
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other written or oral agreement concerning employment with any entity or
person other than Employer and during the term of her employment under this
Agreement.
(e) Uniqueness of Employee's Services. Employee hereby represents
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that the services to be performed by her under the terms of this Agreement
are of a special, unique,
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unusual, extraordinary, and intellectual character which gives them a
peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages and in an action at law. Accordingly, Employee
expressly agrees that Employer, in addition to any rights or remedies which
Employer may possess, shall be entitled to injunctive and other equitable
relief to prevent the breach of this Agreement by Employee.
4. Compensation and Reimbursement of Expenses.
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(a) Salary. Subject to the provisions of paragraph 7 hereof, Employer
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shall pay Employee, as compensation for serving as Executive Vice President
of Employer, an initial Base Salary of $115,500.00 ; such initial Base
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Salary, or any increased Base Salary, shall be payable in substantially
equal installments in accordance with Employer' normal pay practices, but
not less frequently than monthly. The Board of Directors of Employer, if
warranted in their discretion, may increase Employee's Base Salary to
reflect Employee's performance.
(b) Incentive Compensation. During the Term of Employment and in
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addition to the aforesaid Base Salary, Employee shall be entitled to such
additional Incentive Compensation as may be awarded from time to time by
the Board of Directors of Employer or any committee(s) designated thereby
in its discretion. Notwithstanding anything contained in this Agreement to
the contrary, any increase to Employee's Base Salary and any Incentive
Compensation paid to Employee shall be (i) in compliance with regulations,
thrift bulletins, pronouncements, directives, or orders issued or
promulgated by any governing regulatory agency and with any agreements by
and between Employer and such regulatory agencies, (ii) consistent with the
safe and sound operation of Employer, (iii) closely monitored by the Board
of Directors of Employer and (iv) comparable to such compensation
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paid to persons of similar responsibilities and duties in other insured
institutions of similar size, in similar locations, and under similar
circumstances including financial condition and profitability.
(c) "Golden Parachute" Provision. Notwithstanding anything contained
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in this Agreement to the contrary, any payments made to Employee pursuant
to this Agreement, or otherwise to Employee, are subject to and conditioned
upon their compliance with 12 U.S.C. (S) 1828(k) and any regulations
promulgated thereunder.
5. Participation in Benefit Plans. The payments provided in paragraph 4,
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6, and 7 hereof are in addition to any benefits to which Employee may be, or may
become, entitled to, under any group hospitalization, health, dental care, or
sick leave plan; life insurance or death benefit plan; travel or accident
insurance; pension or retirement plan; stock option or ownership plan; or other
present or future group employee benefit plan or program for which senior
executive officers of Employer shall be or shall become eligible. Said benefit
shall include, without limitation, major medical/dental insurance for Employee
and her dependents.
6. Benefits Payable Upon Disability.
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(a) Disability Benefits. In the event of the Disability of Employee,
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Employer shall continue to pay Employee one hundred percent (100%) of
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Employee's then current Base Salary pursuant to paragraph 4(a) during the
first six (6) months of a continuous period of disability. It is provided,
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however, that in the event Employee is disabled for a continuous period
exceeding six (6) months, Employer may, at its election, terminate this
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Agreement, in which event payment of Employee's Base Salary shall cease.
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(b) Disability Benefit Offset. Any amounts payable under paragraph
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6(a) hereof shall be reduced by any amounts paid to Employee under any
other disability program or policy of insurance maintained by Employer.
7. Payments to Employee Upon Termination of Employment. The Board of
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Directors of Employer may terminate Employee's employment under this Agreement
at any time; but any termination other than Termination for Cause shall not
prejudice Employee's right to compensation or other benefits under this
Agreement. Employee may voluntarily terminate her employment under this
Agreement. The rights and obligations of Employer and Employee in the event of
such termination are set forth in this paragraph 7 as follows:
(a) Termination for Cause. Employee shall have no right to
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compensation or other benefits for any period after a Termination for
Cause. Termination for Cause shall be determined by the Board of Directors
of Employer in the reasonable exercise of its discretion and acting in good
faith, and shall include termination because of Employee's personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duties
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 a final cease-and-desist order, the
regulatory suspension or removal of Employee as defined in paragraphs 8(a)
and (b) hereof, the termination of this Agreement under paragraphs 8(c) and
(d) hereof, the failure of Employee to follow reasonable written
instructions of the Board of Directors of Employer, or a material breach of
Employee of any provision of this Agreement. Termination for Cause from
Employer shall be determined by, and shall occur only upon the passage of
a resolution by a vote of not less than a two-thirds of Employer's Board of
Directors specifying Employee's Termination for Cause and the grounds
therefor, after reasonable notice to
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Employee and an opportunity for her to be heard before a meeting of the
Board of Directors called in accordance with the By-Laws of Employer.
Thereafter, Employee shall be deemed to be in material breach of this
Agreement and shall have no right to receive compensation or other benefits
under this Agreement for any period following such Termination for Cause.
This provision on Termination for Cause shall control over any and all
other provisions relating to discharge or termination for cause contained
in any and all other agreements between Employer and Employee.
(b) Event of Termination Without Change of Control. Upon the
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occurrence of an Event of Termination, other than after a Change of
Control as provided in paragraph 7(c) hereof, Employee, or in the event of
her subsequent death, her designated beneficiary or beneficiaries, or her
estate, as the case may be, shall receive, as liquidated damages, in lieu
of all other claims, a severance payment equal to Employee's Total
Compensation (defined as the sum of the then current Base Salary plus any
Incentive Compensation paid to Employee during the immediately preceding
twelve (12) months), to be paid in full on the last day of the month
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following the date of said Event of Termination.
(c) Event of Termination in Connection With a Change of Control. If,
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during the term of this Agreement and within one (1) year immediately
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following a Change of Control or within six (6) months immediately prior
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to such Change of Control:
(i) Employee's employment with Employer under this Agreement is
terminated by an Event of Termination; or
(ii) the status, character, capacity, and circumstances of
Employee's employment as provided in paragraphs 2 and 3 of this
Agreement have been materially altered by Employer whether by a
reduction in salary,
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responsibilities, authority, or benefits, and Employee voluntary
terminates the employment contemplated by this Agreement for that
reason;
then Employer shall pay to Employee, or in the event of her subsequent
death, to her designated beneficiary or beneficiaries, or to her estate, as
the case may be, as liquidated damages, in lieu of all other claims, a
severance payment equal to Employee's Total Compensation, to be paid in
full on the last day of the month following the date of said Event of
Termination or Employee's voluntary termination under (ii) above. In no
event shall the total compensation paid to Employee upon the termination of
her employment in connection with a Change of Control exceed the amount
permitted by Section 280G of the Internal Revenue Code (as amended) or
three times Employee's average annual compensation. Employee's average
annual compensation shall be based on the most recent five taxable years
ending before the Change of Control (or the period during which Employee
was employed by Employer if Employee has been employed by Employer for less
than five years).
(d) Voluntary Termination of Employment. Employee shall have no right
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to compensation or other benefits under this Agreement for any period
following the voluntary termination of Employee's employment by Employee,
except as provided in paragraph 7(b) or 7(c), or 7(e) hereof.
8. Regulatory Suspension.
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(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employer by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S)1818(e)(3) or (g)(1), the obligations of Employer under this
Agreement shall be suspended as of the date of service of such notice,
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unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, then Employer may, in their discretion, (i) pay Employee all or
part of the compensation withheld while its contract obligations were
suspended and (ii) reinstate in whole or in part any of its obligations
which were suspended.
(b) If Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employer by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(4) or (g)(1), all obligations of Employer under this
Agreement shall terminate as of the effective date of the order.
9. Source of Payments. All payments provided in paragraphs 4, 6, and 7
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hereof shall be paid in cash from the general funds of Employer as provided
herein, and no special or separate fund shall be established by Employer, and no
other segregation of assets shall be made to assure payment. Employee shall
have no right, title, or interest in or to any investments which Employer may
make to meet the obligations hereunder.
10. Nondisclosure of Confidential Information. Employee acknowledges that
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she possesses confidential information of a special and unique nature and value
affecting and relating to the business of Employer and its subsidiaries,
including, without limitation, customer lists, deposits, business records, other
trade secrets, and other similar confidential information relating to Employer
and its subsidiaries (all the foregoing being hereinafter collectively referred
to as "Confidential Information"). Employee recognizes and acknowledges that
all Confidential Information is the exclusive property of Employer and its
subsidiaries, respectively, constitutes trade secrets of Employer and its
subsidiaries, is material and confidential, and greatly affects the goodwill and
the effective and successful conduct of the business of Employer and its
subsidiaries. As a material inducement to Employer to enter into this Agreement
and to employ Employee, Employee
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covenants and agrees that she will not at any time during the term of her
employment under this Agreement, and for a period of one (1) year from the end
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of such employment, directly or indirectly, divulge, reveal, or communicate any
Confidential Information to any person, firm, corporation, or entity whatsoever,
or use any Confidential Information for her own benefit or for the benefit of
others. Employee further acknowledges that said Confidential Information has
material commercial value to Employer and its subsidiaries so long as it is not
known by competitors of Employer and its subsidiaries and that Employer and its
subsidiaries have taken reasonable steps to keep all such information and trade
secrets confidential.
11. Injunctions. In view of the irreparable harm and damage which Employer
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and its subsidiaries would sustain as a result of a breach by Employee of the
covenants or agreements under paragraph 10 hereof, and in view of the lack of an
adequate remedy at law to protect the interests of Employer and its
subsidiaries, Employer shall have the right to receive, and Employee hereby
consents to the issuance of, a permanent injunction enjoining Employee from any
violation of the covenants and agreements set forth in paragraph 11 hereof. The
foregoing remedy shall be in addition to, and not in limitation of, any other
rights or remedies to which Employer is or may be entitled at law or in equity
respecting this Agreement.
12. Attorneys' Fees. In the event any party hereto is required to engage
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in legal action against any other party hereto, either as plaintiff or
defendant, in order to enforce or defend any of its or her rights under this
Agreement, and such action results in a final judgment in favor of one or more
parties, then the party or parties against whom said final judgment is obtained
shall reimburse the prevailing party or parties for all legal fees and expenses
incurred by the prevailing party or parties in asserting or defending its or her
rights hereunder.
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13. Federal Income Tax Withholding. Employer may withhold from any
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benefits payable under this Agreement all federal, state, city, or other taxes
as shall be required pursuant to any law or governmental regulation or ruling.
14. Effect of Prior Agreements. This Agreement contains the entire
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understanding between the parties hereto and supersedes any prior employment
agreement any contemporaneous oral agreement or understanding by, between, or
among Employer, Employer's subsidiaries and Employee.
15. General Provisions.
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(a) Nonassignability. Neither this Agreement nor any right or
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interest hereunder shall be assignable by Employee, her beneficiaries or
legal representatives, without the written consent of Employer; provided,
however, that nothing in this paragraph 15(a) shall preclude (i) Employee
from designating a beneficiary to receive any benefits payable hereunder
upon her death, or (ii) the executors, administrators, or other legal
representatives of Employee or her estate from assigning any rights
hereunder to the person or persons entitled thereto.
(b) No Attachment. Except as required by law, no right to receive
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payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void,
and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and
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inure to the benefit of, Employer and Employee and their respective heirs,
successors, assigns, and legal representatives.
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17. Modification and Waiver.
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(a) Amendment of Agreement. This Agreement may not be modified or
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amended except by an instrument in writing, signed by the parties hereto,
and which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to
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have been waived, nor shall there be any estoppel against the enforcement
of any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
18. Severability. If for any reason any provision of this Agreement is
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held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
19. Headings. The headings of paragraphs herein are included solely for
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convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
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20. Governing Law. This Agreement has been executed and delivered in the
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State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
21. Rights of Third Parties. Nothing herein expressed or implied is
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intended to or shall be construed to confer upon or give to any person, firm, or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement.
22. Notices. All notices, requests, demands, and other communications
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provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the United States by registered or certified mail,
or personally delivered, to the party entitled thereto at the address stated
below or to such changed address as the addressee may have given by a similar
notice:
To Employer: Chairman, Compensation Committee
Board of Directors
Premier Bancshares, Inc.
0000 Xxxxxxx Xxxxx
000 X. Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
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Copy to: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC
Xxxxx 000
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
To Employee: Xx. Xx X. Xxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
IN WITNESS WHEREOF, Employer has caused this Agreement to be executed
and its seal to be affixed hereunto by their duly authorized officers, and
Employee has signed this Agreement, as of the Effective Date.
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ATTEST: PREMIER BANCSHARES, INC.
/s/ By: /s/ Xxxxxxx X. Xxxxxxx
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Secretary Xxxxxxx X. Xxxxxxx
Chairman of the Board
[SEAL]
/s/ /s/ Xx X. Xxxx (SEAL)
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Witness Xx X. Xxxx
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