EXHIBIT 10.3
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 1/st/ day of July, 1998, by and among PREMIER BANK ("Premier"), a wholly-
owned Georgia banking subsidiary of among Premier Bancshares, Inc., a Georgia
corporation (the "Holding Company"); THE BANK OF GWINNETT COUNTY ("Gwinnett")
(Premier and Gwinnett shall sometimes be collectively referred to as
"Employers"); and XXXXXX X. XXXXXXXXX ("Employee") and shall become effective
only upon the closing of that certain Agreement and Plan of Reorganization,
dated as of February 5, 1998, by and between Xxxxxx Xxxxxxxx Financial
Corporation ("Xxxxxx Xxxxxxxx") and the Holding Company (the "Effective Date").
W I T N E S S E T H:
WHEREAS, as of the Effective Date, Xxxxxx Xxxxxxxx, a Georgia
corporation, merged with and into the Holding Company, and Gwinnett became a
wholly-owned banking subsidiary of the Holding Company;
WHEREAS, as of the Effective Date, Employee became Executive Vice
President of Premier and continued as Executive Vice President of Gwinnett;
WHEREAS, the Boards of Directors of Employers consider the
establishment and maintenance of highly competent and skilled management
personnel for Employers to be essential to protecting and enhancing their best
interests;
WHEREAS, the Boards of Directors of Employers are desirous of inducing
Employee to remain in the employ of Employers, subject to the terms and
conditions hereof;
WHEREAS, Employee is desirous of remaining in the employ of Employers,
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 Employers;
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 the
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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
Holding Company;
(ii) Upon the consummation of any transaction in which the
Holding Company, or substantially all of the assets of the Holding
Company, shall be sold or transferred to, or consolidated or merged
with, another corporation; or
(iii) Upon the consummation of any transaction in which either or
both Employers, or substantially all of the assets of either or both
Employers, shall be sold or transferred to, or consolidated or merged
with, another corporation which is not a majority owned subsidiary of
the Holding Company;
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provided, however, if the Holding Company or the Employers 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 the Holding Company immediately before such acquisition,
merger, or consolidation, then no Change of Control shall be deemed to have
occurred. It is contemplated by the parties that, during the Term of
Employment, Gwinnett may be merged with and into Premier; and further that,
upon such merger, Premier, for all purposes under this Agreement, shall be
deemed the sole employer of Employee and referred to as "Employers."
(c) "Disability" shall mean a condition for which benefits would be
payable under any long-term disability insurance coverage (without regard
to the application of any elimination period requirement) then provided to
Employee by Employers; or, if no such coverage is then being provided, the
inability of Employee to perform the material aspects of Employee's duties
under this Agreement for a period of at least ninety (90) consecutive days,
as determined by an independent physician selected with the approval of
Employers and Employee.
(d) "Event of Termination" shall mean the termination by Employers of
Employee's employment under this Agreement by written notice delivered to
Employee for any reason other than Termination for Cause as defined in (g)
of this paragraph or termination following a continuous period of
disability exceeding twelve (12) calendar months pursuant to paragraph 6(a)
of this Agreement.
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(e) "Incentive Compensation" shall mean that compensation payable or
paid to Employee pursuant to paragraph 4(b) of this Agreement.
(f) "Severance Amount" shall have the same meaning as the term
"parachute payment" defined in Section 280G(b)(2) of the Internal Revenue
Code (as amended).
(g) "Termination for Cause" shall have the meaning provided in
paragraph 7(a) of this Agreement.
2. Employment.
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(a) Employers agree to continue Employee in their employ, and
Employee agrees to remain in the employ of Employers, as Executive Vice
President of Gwinnett and as Executive Vice President of Premier, 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 his positions and shall from
time to time be assigned to him by the Boards of Directors of Employers in
a trustworthy and businesslike manner for the purpose of advancing the
interests of Employers. At all times, Employee shall manage and conduct the
business of Employers in accordance with the policies established by the
Boards of Directors of Employers, and in compliance with applicable
regulations promulgated by governing regulatory agencies. Responsibility
for the supervision of Employee shall rest with the Boards of Directors of
Employers, which shall review Employee's performance at least annually. The
Boards of Directors of Employers shall also have the authority to terminate
Employee, subject to the provisions outlined in paragraph 7 of this
Agreement.
(b) During the term of this Agreement, the Holding Company shall
elect Employee to the Board of Directors of Premier and Employee shall
serve as a Director of
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Premier. It is expressly agreed that Employee shall cease serving as a
Director of Premier upon the termination of this Agreement and Employee
hereby agrees to immediately resign from the Board of Directors of Premier
upon the termination of this Agreement, whether voluntary or involuntary,
with or without cause.
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 twenty-four (24) full
calendar months thereafter, unless earlier terminated pursuant to this
Agreement or unless Employee dies before the end of such twenty-four (24)
months, in which case the period of employment shall be deemed to continue
until the end of the month of such death. On each anniversary of the
Effective Date, this Agreement and Employee's term of employment shall be
automatically extended for an additional twelve (12) month period, unless
Employee on the one hand, or Employers on the other hand, shall give
written notice to the other, within the sixty (60)-day period immediately
prior to the applicable anniversary of the Effective Date, that Employee's
term of employment hereunder shall not 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
his business time, attention, skill, and efforts to the faithful
performance of his duties hereunder. Employee's duties shall be divided
between Employers at the direction and in the discretion of the Boards of
Directors of Employers as is commensurate with the division of salary set
forth in paragraph 4(a) of this Agreement. Employee shall be entitled to
reasonable participation as a member in
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community, civic, or similar organizations and the pursuit of personal
investments which do not present any material conflict of interest with
Employers, or otherwise unfavorably affect the performance of Employee's
duties pursuant to this Agreement.
(c) Office of Employee. The office of Employee shall be located at
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0000 Xxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, or at such other location
within Xxxxxx or Gwinnett County as Employers may from time to time
designate; provided, however, that, in the event such relocation required
Employee to move his principal residence, the Employers shall reimburse
Employee for all his reasonable moving expenses.
(d) No Other Agreement. The Employee shall have no employment
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contract or other written or oral agreement concerning employment with any
entity or person other than Employers and during the term of his employment
under this Agreement.
(e) Uniqueness of Employee's Services. Employee hereby represents
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that the services to be performed by him under the terms of this Agreement
are of a special, unique, 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 Employers, in addition to any
rights or remedies which Employers 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,
Employers shall pay Employee, as compensation for serving as Executive Vice
President of Employers, an initial Base Salary of $137,000.00 ; such
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initial Base Salary, or any increased Base Salary, shall be payable in
substantially equal installments in accordance with the Employers' normal
pay
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practices, but not less frequently than monthly. For each twelve-month
period, until Gwinnett shall be merged with and into Premier, 80% of
Employee's Base Salary shall be ascribed to and reflected upon the books
and records of Gwinnett and 20% of Employee's Base Salary shall be ascribed
to and reflected upon the books and records of Premier, commensurate with
the services performed by Employee for the respective employer. Employee's
Base Salary and any Incentive Compensation (as defined in paragraph 4(b)
hereof) shall be reviewed and approved at least annually by the Boards of
Directors of Employers, or any committee(s) designated thereby. Said
Boards or Committee(s), if warranted in their discretion, may increase
Employee's Base Salary to reflect Employee's performance.
(b) Incentive Compensation. During the Term of Employment, Employee
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shall be eligible to participate in any incentive bonus plans maintained by
Employers for their executive officers. It is contemplated that an annual
incentive bonus plan will be maintained by Employers which will establish
individual performance goals for Employee each and every fiscal year during
the Term of Employment, with Employee being awarded a target bonus
("Incentive Compensation") of approximately thirty percent (30%) of his
then current Base Salary upon the attainment, in the discretion of the
Boards of Directors of Employers or any committee(s) designated thereby, of
Employee's individual performance goals and certain specified corporate
objectives. The payment to Employee of any Incentive Compensation as
aforesaid shall be made by Employers in accordance with the policy or
policies established by the Boards of Directors of Employers or any
committee(s) designated thereby. Notwithstanding anything contained in
this Agreement to the contrary, any increase to Employee's Total
Compensation, as hereinafter defined, paid to Employee shall be (i) in
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compliance with regulations, pronouncements, directives, or orders issued
or promulgated by any governing regulatory agency and with any agreements
by and between Employers and such regulatory agencies, (ii) consistent with
the safe and sound operation of Employers, (iii) closely monitored by the
Boards of Directors of Employers and (iv) comparable to such compensation
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) Total Compensation. During the first twenty-four (24) months of
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this Agreement, Employee shall receive a minimum Total Compensation of
$178,000.00, annually. "Total Compensation" is defined as the sum of
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Employee's Base Salary plus Employee's Incentive Compensation. After the
first twenty-four (24) months of this Agreement have expired, Employee
shall receive such Total Compensation as is determined in the discretion of
the Boards of Directors of Employers or any committee(s) designated thereby
as set forth in paragraphs 7(a) and 7(b) above.
(d) Reimbursement of Expenses. Employers shall pay or reimburse
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Employee for all reasonable travel (except as modified by paragraph 7(f)
hereof) and other expenses incurred by Employee in the performance of his
obligations and duties under this Agreement as provided in the applicable
policies of Employers, as currently adopted or as may be adopted in the
future by the Boards of Directors of Employers.
(e) Provision for Business Development Expenses. In addition to the
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foregoing, Employers believe that their best interests will be more fully
served if Employee maintains active membership in or joins appropriate
business or social clubs and other professional associations. Accordingly,
Employers shall also reimburse Employee for the dues and
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business related expenditures associated with Employee's membership in such
appropriate business or other social clubs and professional associations
which are commensurate with his positions and approved by the Boards of
Directors of Employers.
(f) Provision of Automobile.
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(i) Employers shall, on the Effective Date of this Agreement,
cause to be transferred to Employee the title to that certain 1997
Ford Explorer automobile owned by Gwinnett.
(ii) Employers shall provide Employee with an automobile
allowance of $500 per month. No other reimbursement will be made
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relating to the operation and maintenance of any automobile by
Employee; and Employee shall maintain, at his expense, automobile
liability insurance to protect Employee and Employers, as their
respective interests may appear, against claims arising out of the use
of said automobile (or any other motor vehicle) in the course of
Employee's employment hereunder.
(f) "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
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Employers shall be or shall become eligible. Said benefit shall include,
without limitation, major medical/dental insurance for Employee and his
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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Employers shall continue to pay Employee 100% of Employee's then current
Base Salary pursuant to paragraph 4(a) during the first twelve (12) months
of a continuous period of disability. It is provided, however, that in the
event Employee is disabled for a continuous period exceeding twelve (12)
months, Employers may, at its election, terminate this Agreement, in which
event payment of Employee's Base Salary shall cease.
(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 Employers.
7. Payments to Employee Upon Termination of Employment. The Boards of
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Directors of Employers 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 his employment under this
Agreement. The rights and obligations of Employers 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 Boards of
Directors of Employers in the reasonable exercise of their discretion and
acting in good faith. For purposes of this Agreement, "Cause" shall mean:
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(i) the willful or gross misconduct or willful or gross
negligence in the performance by Employee of Employee's duties for
Employers;
(ii) the intentional neglect by Employee of Employee's duties
for Employers;
(iii) the conviction of Employee of theft or misappropriation of
funds of Employers or of a business related felony or a felony
involving moral turpitude;
(iv) the commencement of a proceeding by or against Employee
under any bankruptcy, insolvency, or similar law;
(v) the willful violation by Employee of any agreement with, or
cease and desist order entered by, any governing regulatory agency
involving; or
(vi) the regulatory suspension or removal of Employee as defined
in paragraphs 9(a) and (b) hereof.
The termination of employment of Employee shall not be deemed to be for
Cause unless and until there shall have been delivered to Employee a copy
of a resolution duly adopted by the affirmative vote of not less than two-
thirds of the entire membership of the Board(s) of Premier and/or Gwinnett
at a meeting of the respective Board(s) called and held for such purpose
(after reasonable notice is provided to Employee and Employee is given an
opportunity, together with counsel, to be heard before the Board), finding
that, in the good faith opinion of the Board, Employee is guilty of the
conduct described herein in subparagraph (i), (ii), (iii), (iv), (v) or
(vi) of this paragraph 7(a), and specifying the particulars thereof in
detail.
(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
his subsequent death, his designated beneficiary or
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beneficiaries, or his estate, as the case may be, shall receive, as
liquidated damages, in lieu of all other claims, a severance payment equal
to Employee's then current Total Compensation paid to Employee during the
immediately preceding twelve (12) months, to be paid in full on the last
day of the month following the date of said Event of Termination. The
responsibility for making such severance payment shall be allocated among
Employers in whatever manner they deem appropriate.
(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
following a Change of Control or within six (6) months immediately prior to
such Change of Control, Employee's employment with Employers under this
Agreement is terminated by an Event of Termination, Employee, or in the
event of his subsequent death, his designated beneficiary or beneficiaries,
or his estate, as the case may be, shall receive, as liquidated damages, in
lieu of all other claims, a severance payment equal to Employee's then
current Total Compensation paid to Employee during the immediately
preceding twelve (12) months, to be paid in full on the last day of the
month following the date of said Event of Termination. The responsibility
for making such severance payment shall be allocated among Employers in
whatever manner they deem appropriate. In no event shall the payment(s)
described in this paragraph 7(c) exceed the amount permitted by Section
280G of the Internal Revenue Code (as amended). Therefore, if the
aggregate present value (determined as of the date of the Change of Control
in accordance with the provisions of Section 280G of the Internal Revenue
Code (as amended) or any successor thereof and the regulations and rulings
thereunder ("Section 280G")) of both the Severance Amount and all other
payments to Employee in the nature of compensation which are contingent on
a change in ownership or
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effective control of the Employers or Holding Company or in the ownership
of a substantial portion of the assets of Employers or Holding Company (the
"Aggregate Severance") would result in a parachute payment (as determined
under Section 280G) then the Aggregate Severance shall not be greater than
an amount equal to 2.99 multiplied by Employee's base amount (as determined
under Section 280G) for the base period (as determined under Section 280G).
In the event the Aggregate Severance is required to be reduced pursuant to
this paragraph 7(c), Employee shall be entitled to determine which portions
of the Aggregate Severance are to be reduced so that the Aggregate
Severance satisfies the limit set forth in the preceding sentence.
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 Employers and/or the Holding Company
if Employee has been employed by Employers and/or the Holding Company 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), 7(c), or 7(e) hereof.
(e) Termination of Employment for Good Reason. If, during the term of
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this Agreement, the status, character, capacity, and circumstances of
Employee's employment as provided in paragraphs 2, 3, 4 and 5 of this
Agreement have been materially altered by Employers, whether by a reduction
in salary, responsibilities, authority or benefits, and Employee terminates
his employment under this Agreement within twelve (12) months thereafter
for that reason, Employee, or in the event of his subsequent death, his
designated beneficiary or beneficiaries, or his estate, as the case may be,
shall receive as liquidated
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damages, in lieu of all other claims, a severance payment equal to
Employee's then current Total Compensation paid to Employee during the
immediately preceding twelve (12) months, to be paid in full on the last
day of the month following the date of said termination. The
responsibility for making such severance payments shall be allocated among
Employers in whatever manner they deem appropriate.
(f) Additional Payments After Termination. In the event that
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Employee's employment is terminated pursuant to paragraph 7(b), 7(c), or
7(e) above, then Employers shall pay Employee an additional amount equal to
Employee's cost of COBRA health continuation coverage for Employee and his
eligible dependants for the period during which Employee and his eligible
dependants are entitled to receive COBRA continuation coverage from
Employers under the applicable laws, rules and regulations governing COBRA.
8. Vacation and Sick Leave. Employee shall be entitled, without loss of
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pay, to absent himself voluntarily from the performance of his duties under this
Agreement in accordance with the terms set forth below, all such voluntary
absences to count as vacation time, provided that:
(a) Employee shall be entitled to an annual vacation in accordance
with the policies that the Boards of Directors of Employers periodically
establish(es) for senior management employees of Employers.
(b) Employee shall not receive any additional compensation from
Employers on account of his failure to take a vacation, and Employee shall
not accumulate unused vacation from one fiscal year to the next, except in
either case to the extent authorized by the Boards of Directors of
Employers.
(c) In addition to the aforesaid paid vacations, Employee shall be
entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment
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obligations with Employers for such additional periods of time and for such
valid and legitimate reasons as the Boards of Directors of Employers may in
their discretion approve. It is also provided that the Boards of Directors
of Employers may grant to Employee a leave or leaves of absence, with or
without pay, at such time or times and upon such terms and conditions as
the Boards of Directors of Employers may in their discretion determine.
(d) Employee shall be further entitled to an annual sick leave
benefit as may be established by the Boards of Directors of Employers.
9. Regulatory Suspension.
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(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employers 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 Employers under this
Agreement shall be suspended as of the date of service of such notice,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, then the Employers 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 the Employers under
this Agreement shall terminate as of the effective date of the order.
10. 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 Employers as provided
herein, and no special or separate fund shall be established by Employers, and
no other segregation of assets shall be made to assure
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payment. Employee shall have no right, title, or interest in or to any
investments which Employers may make to meet the obligations hereunder.
11. Nondisclosure of Confidential Information. Employee acknowledges that
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he possesses confidential information of a special and unique nature and value
affecting and relating to the business of Employers and the Holding Company
business, including, without limitation, customer lists, deposits, business
records, other trade secrets, and other similar confidential information
relating to Employers and/or the Holding Company and the business of each (all
the foregoing being hereinafter collectively referred to as "Confidential
Information"). Employee recognizes and acknowledges that all Confidential
Information is the exclusive property of Employers and/or the Holding Company,
respectively, constitutes trade secrets of Employers and/or the Holding Company,
is material and confidential, and greatly affects the goodwill and the effective
and successful conduct of the business of Employers and/or the Holding Company.
As a material inducement to Employers to enter into this Agreement and to employ
Employee, Employee covenants and agrees that he will not at any time during the
term of his employment under this Agreement, and for a period of one (1) year
from the end 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 his own benefit or
for the benefit of others. Employee further acknowledges that said Confidential
Information has material commercial value to Employers and/or the Holding
Company so long as it is not known by competitors of Employers and/or the
Holding Company and that Employers and the Holding Company have taken reasonable
steps to keep all such information and trade secrets confidential.
12. Injunctions. In view of the irreparable harm and damage which
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Employers and/or the Holding Company would sustain as a result of a breach by
Employee of the covenants or agreements
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under paragraph 11 hereof, and in view of the lack of an adequate remedy at law
to protect the interests of Employers and/or the Holding Company, Employers
and/or the Holding Company 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 Employers and/or the Holding Company is/are or may
be entitled at law or in equity respecting this Agreement. It is expressly
agreed by the parties hereto that the Holding Company is an intended third party
beneficiary of paragraphs 11,12 and 13 of this Agreement and may enforce same
against Employee as if they were a party hereto.
13. 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 his 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 his
rights hereunder. It is provided, however, that, prior to a final judgment,
Employers and/or the Holding Company shall advance to Employee the reasonable
legal fees and expenses incurred by Employee in connection with Employee's
engagement in any legal action against Employers and/or the Holding Company,
either as plaintiff or defendant, in order to enforce or defend any of
Employee's rights under this Agreement. Such advances shall be made within
thirty (30) days after receiving copies of invoices presented by Employee for
such reasonable legal fees and expenses. Employee shall have the obligation to
reimburse Employers and/or the Holding Company within sixty (60) days following
the final disposition of the matter (including
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appeals) to the full extent of the aggregate advances unless Employee shall have
prevailed in asserting or defending his rights hereunder.
14. Federal Income Tax Withholding. Employers 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.
15. Effect of Prior Agreements. This Agreement, that certain Indexed
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Executive Salary Continuation Agreement, dated as of September 9, 1994, as
amended and restated, between Employee and Gwinnett, and that certain Flexible
Premium Life Insurance Endorsement Method Split Dollar Plan Agreement, dated as
of September 9, 1994, as amended, between Employee and Gwinnett, contain the
entire understanding between the parties hereto and supersede any prior written
agreements and any contemporaneous oral agreements or understandings by,
between, or among the Employers and Employee with respect to Employee's
employment.
16. 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, his beneficiaries or
legal representatives, without the written consent of Employers; provided,
however, that nothing in this paragraph 16(a) shall preclude (i) Employee
from designating a beneficiary to receive any benefits payable hereunder
upon his death, or (ii) the executors, administrators, or other legal
representatives of Employee or his 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,
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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, Employers and Employee and their respective
heirs, successors, assigns, and legal representatives.
17. Modification and Waiver.
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(a) Amendment of Agreement. This Agreement may not be modified or
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
------------
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.
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19. Headings. The headings of paragraphs herein are included solely for
--------
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
20. Governing Law. This Agreement has been executed and delivered in the
-------------
State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
21. Rights of Third Parties. Nothing herein expressed or implied is
-----------------------
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, except as expressly set
forth in paragraph 11 hereof.
22. Notices. All notices, requests, demands, and other communications
-------
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 Employers: Chairman, Compensation Committee
Board of Directors
Premier Bancshares, Inc.
0000 Xxxxxxx Xxxxx
000 X. Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
-and-
[ADDRESSES CONTINUED ON FOLLOWING PAGE]
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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. Xxxxxx X. Xxxxxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, Xxxxxxx 00000
IN WITNESS WHEREOF, Employers have caused this Agreement to be
executed and their seal to be affixed hereunto by their duly authorized
officers, and Employee has signed this Agreement, as of the Effective Date.
ATTEST: PREMIER BANK
/s/ By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ --------------------------------
Secretary Xxxxxxx X. Xxxxxxx
Chairman of the Board
[BANK SEAL]
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ATTEST: THE BANK OF GWINNETT COUNTY
/s/ By: /s/ Xxxx X. Xxxxxxxx
---------------------------- ------------------------------
Secretary Xxxx X. Xxxxxxxx
Chairman of the Board
[BANK SEAL]
/s/ /s/ XXXXXX X. XXXXXXXXX (SEAL)
---------------------------- ----------------------------------
Witness XXXXXX X. XXXXXXXXX
This Agreement is hereby executed by Premier Bancshares to acknowledge its
responsibility to Employee under paragraph 2(b).
ATTEST: PREMIER BANCSHARES, INC.
/s/ By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------- ----------------------------------
Secretary Xxxxxxx X. Xxxxxxx
Chairman of the Board
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