EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into on this 20th day of
May, 1998, as amended and restated on January 7, 1999 between UNITED
AMERICAS BANKSHARES, INC., a Georgia corporation (the "Company"), and
XXXXXXX X. XXXXX (the "Executive").
WHEREAS, the parties hereto desire to enter into an agreement for
Company's employment of Executive on the terms and conditions
contained herein;
THEREFORE, in consideration of the premises and the mutual
covenants, benefits and conditions herein contained, the parties
hereto agree as follows:
1. EMPLOYMENT. The Company hereby employs Executive, and
----------
Executive hereby accepts employment, as President, Chief Executive
Officer and Senior Credit Officer of the Company; and in such capacity
Executive will report to the Board of Directors and will perform such
customary managerial services and duties as the Board may from time to
time designate during the term hereof which are consistent with duties
customarily required of senior officers of financial institutions.
Executive will devote his full business time, attention and energies
to the diligent performance of his duties as an employee of the
Company. Executive will not, without the prior written consent of the
Company, directly or indirectly, at any time during the term of his
employment with the Company: (a) accept employment with or render
services of a business, professional or commercial nature to any other
business; (b) engage in any venture or activity that the Company may
in good faith consider to be competitive with or adverse to the
business of the Company, whether alone, as a partner, or as an
officer, director, employee or shareholder or otherwise except for
passive investments in publicly traded companies; or (c) engage in any
venture or activity that the Company may in good faith consider to
interfere with Executive's performance of his duties hereunder.
2. TERM. Executive's employment is for an initial term ending
----
on January 31, 2002. When the initial term expires, this Agreement
will be automatically renewed for successive one-year terms, unless
sooner terminated in accordance with SECTION 4.
3. Salary and Benefits. As compensation for Executive's
services to the Company during the term of this Agreement, the Company
will pay the following compensation and benefits to Executive:
3.1. ANNUAL SALARY. The Company will pay to Executive,
-------------
during the first year of this Agreement, an annual salary at the rate
of $135,000 per year, payable (i) monthly, (ii) in accordance with the
customary payroll policy of the Company in effect at the time such
payment is made, or (iii) as the Company and Executive may otherwise
mutually agree. The annual salary of the Executive will be reviewed
by the Board of Directors of the Company on an annual basis and will
be annually increased in an amount not less than four percent (4%) of
the Executive's then-current annual salary.
3.2. VACATION AND OTHER BENEFITS. Executive will be
---------------------------
entitled to (a) vacation during each year of employment by the Company
in accordance with the policies of the Company in effect from time to
time, (b) share in any employee benefits provided by the Company from
time to time on the same basis as similarly situated employees of the
Company, so long as the Company continues to provide or offer such
benefits to such employees, and (c) a car allowance package of $750
per month. In addition, Executive will receive membership dues for
the Cherokee Country Club and up to one other luncheon club if deemed
appropriate by the Board of Directors.
3.3. STOCK OPTIONS. (a) Upon the date the Company
-------------
completes the initial public offering of its common stock, the Company
will grant to Executive options (the "Options") to acquire 25,000
shares of Company common stock at an exercise price equal to the fair
market value of the shares of Company common stock on the date of
grant as determined by an independent consultant. 10,000 of the
Options will vest on the date of the opening of the banking subsidiary
of the Company and an additional 5,000 shares will vest on each
calendar year-end thereafter for the next three years. The terms and
conditions governing the Options will be as set forth in the Form of
Stock Option Agreement attached hereto as Exhibit A or an incentive
stock option agreement substantially similar to the form attached as
Exhibit A.
(b) If the Company terminates Executive's employment
without Cause, any then-vested options may be exercised for a period
of ninety (90) days from the date of termination. If at any time
during the term of Executive's employment there is a Change in
Control, all outstanding options will become immediately exerciseable
by Executive.
3.4. INCENTIVE BONUS. Subject to the Company exceeding
---------------
certain performance targets which shall be determined annually by the
Compensation Committee of the Board, Executive will be entitled to
receive options to acquire an additional 2,000 shares of Company
common stock per year and a cash bonus equal to 15% of Executive's
annual salary.
4. TERMINATION.
-----------
4.1. TERMINATION BY EXECUTIVE. (a) Executive may terminate
------------------------
his employment hereunder by Notice of Termination (as described in
Section 6.1) if (i) the Company materially breaches this Agreement and
such breach is not cured within thirty (30) days after written notice
of such breach is given by Executive to the Company, or (ii) if there
is Good Reason. If Executive terminates his employment in accordance
with clause (i) or (ii) of this SECTION 4.1(a), Executive will
receive:
(A) his then-current annual salary (subject to
withholding of all applicable taxes) for a period
of six (6) months from his date of termination,
provided, however, if there is a Change in Control
within such 6-month period, Executive will receive
his then-current annual salary for a period of one
(1) year from his date of termination; and
-2-
(B) any incentive bonus amounts that Executive had
previously earned from the Company for fiscal
years that ended before the date of termination,
but which may not have been declared or paid as of
his date of termination. Executive will also
receive a prorated bonus for any uncompleted
fiscal year at the date of termination (using the
assumption that the performance targets have been
achieved), based upon the number of days that he
was employed during such fiscal year.
(b) If Executive terminates his employment other than
pursuant to clauses (i) or (ii) of SECTION 4.1(a), the Company's
obligations under this Agreement will cease as of the date of such
termination. The Company agrees that if Executive terminates
employment and is entitled to benefits under this SECTION 4.1,
Executive will not be required to mitigate damages by reducing the
amount he is entitled to receive hereunder by earnings from subsequent
employment.
4.2. BY COMPANY. (a) The Company may terminate Executive's
----------
employment under this Agreement at any time during the term of this
Agreement by Notice of Termination (as described in SECTION 6.1,
provided that no such notice will be required in the event of death),
(i) for Cause, (ii) if Executive becomes Disabled, (iii) upon
Executive's death, or (iv) if preliminary regulatory approval to
charter the banking subsidiary of the Company is not received prior to
April 30, 1999.
(b) If the Company terminates Executive's employment
under this Agreement pursuant to clauses (i) through (iv) of SECTION
4.2(a), the Company's obligations under this Agreement will cease as
of the date of employment termination; provided, however, that if
Executive's employment terminates as a result of death or Disability,
any unpaid benefits payable under this Agreement and any benefits
payable under any other benefit plans of the Company upon Executive's
death or Disability will be provided by the Company. If Executive
dies after June 30 in any year, all shares which would vest at the end
of the then current calendar year will accelerate and the Executive's
estate shall have ninety (90) days after his death to exercise all
vested options.
5. DEFINITIONS. For purpose of this Agreement, the following
-----------
terms have the meanings specified below:
5.1. "BOARD" OR "BOARD OF DIRECTORS." The Board of
-----------------------------
Directors of the Company.
5.2. "CAUSE." (a) the commission by Executive in the
------
course of his employment by the Company of an act of fraud,
embezzlement, theft or proven dishonesty, or any other illegal act or
practice (whether or not resulting in criminal prosecution or
conviction);
(b) any willful act or omission by Executive that may
have a materially adverse effect on the Company or is in reckless
disregard of the interests of the Company;
-3-
(c) the gross neglect by Executive to perform his
duties with the Company in accordance with the operating and personnel
policies and procedures of the Company generally applicable to all
employees of the Company (other than any failure or neglect caused by
or resulting from Executive's incapacity due to physical or mental
illness or injury) or willful insubordination to the Board of
Directors in the conduct of his duties hereunder; or
(d) the consistent failure by Executive to perform the
duties and objectives specified for Executive from time to time by the
Board of Directors of the Company consistent with Section 1 hereof.
5.3. "CHANGE IN CONTROL." A "Change in Control" means a
-----------------
change in the ownership or sale of the then-outstanding common stock
of the Company by the shareholders thereof or the acquisition of the
Company by another company or other entity or by shareholders thereof,
(i) through a sale or other acquisition of all or substantially all of
the Company's assets, (ii) through an acquisition of more than 50% of
the then-outstanding common stock of the Company in a single
transaction or in related transactions, whether or not any of such
shareholders included in the more than 50% group were shareholders of
the Company before to the Change of Control, or (iii) as a result of a
merger, consolidation or other reorganization involving the Company,
after which such other company, association, entity or shareholders
thereof own either directly or indirectly, more than 50% of the
outstanding common stock or of the assets of the Company.
5.4. "CODE." The Internal Revenue Code of 1986, as amended.
----
5.5. "DISABILITY" OR "DISABLED." Executive's absence from
------------------------
his duties on a full-time basis for 180 consecutive business days as a
result of incapacity due to physical or mental illness or injury.
5.6. "GOOD REASON." A "Good Reason" for termination by
-----------
Executive of Executive's employment means the occurrence (without the
Executive's express written consent), within the twenty-four (24)
month period following the date of a Change in Control or during the
period commencing on the first date on which a Threatened Change in
Control becomes manifest and until it ends, of any one of the
following acts by the Company, or failure by the Company to act,
unless, in the case of any act or failure to act described in
paragraph (i), (v), or (vi) below, such act or failure to act is
corrected before to the Date of Termination specified in the Notice of
Termination given in respect thereof:
(i) the assignment to Executive of any duties
inconsistent with Executive's title and status as set forth this
Agreement, or a substantial adverse alteration in the nature or status
of Executive's responsibilities at the Company from those in effect
immediately before the Change in Control or Threatened Change in
Control (other than any such alteration primarily attributable to the
fact that the Company may no longer be a public company);
(ii) a substantial reduction of the Executive's annual
salary;
-4-
(iii) the relocation of Company's principal
executive offices to a location outside of Atlanta, Georgia, or the
Company's requiring Executive to be based anywhere other than the
Company's principal executive offices, except for required travel on
the Company's business to an extent substantially consistent with
Executive's present business travel obligations;
(iv) the failure by the Company, without Executive's
consent, to pay to Executive any portion of Executive's then-current
compensation (including annual salary and annual bonus);
(v) the failure by the Company to continue in effect
any compensation plan in which Executive participates immediately
before to the Change in Control or Threatened Change in Control, which
is material to Executive's total compensation unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan)
has been made with respect to such plan, or the failure by the Company
to continue the Executive's participation in such plan (or in such
substitute or alternative plan) on a basis not materially less
favorable, both in terms of the amount of benefits provided and the
level of Executive's participation relative to other participants, as
existed at the time of the Change in Control or Threatened Change in
Control;
(vi) any purported termination of Executive's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 6.1; for purposes of this
Agreement, no such purported termination will be effective.
The Executive's right to terminate his employment for Good Reason
will not be affected by the Executive's incapacity due to physical or
mental illness, except for a Disability as defined in Section 5.5.
The Executive's continued employment will not constitute consent to,
or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder.
5.7. "PERSON." Any individual, corporation, limited
------
liability company, Company, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or other
entity.
5.8. "THREATENED CHANGE IN CONTROL." Any pending tender
----------------------------
offer for the Company's outstanding shares of common stock, or any
pending bona fide offer to acquire the Company by merger or
consolidation, or any other pending action or plan to effect a Change
in Control of the Company.
6. TERMINATION PROCEDURES.
----------------------
6.1. "NOTICE OF TERMINATION." During the term of this
---------------------
Agreement, any termination of Executive's employment (other than by
reason of death) must be communicated by written Notice of Termination
from one party to the other party in accordance with SECTION 4.1 or
4.2. For purposes of this Agreement, a "Notice of Termination" means
a notice which indicates the specific termination provision in this
Agreement relied upon and will set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated.
-5-
6.2. "DATE OF TERMINATION." "Date of Termination," with
-------------------
respect to any termination of Executive's employment during the term
of this Agreement, will mean (i) if Executive's employment is terminated by
his death, the date of his death, (ii) if Executive's employment is terminated
for Disability, thirty (30) days after Notice of Termination is given
(provided that Executive will not have returned to the full-time performance
of Executive's duties during such thirty (30) day period), and (iii) if
Executive's employment is terminated for any other reason, the date specified
in the Notice of Termination (which, in the case of a termination by the
Company, will not be less than thirty (30) days, except in the case of a
termination for Cause and, in the case of a termination by the Executive under
clauses (i) or (ii) of Section 4.1(a), will not be less than thirty
(30) days from the date such Notice of Termination is given).
7. COVENANTS OF EXECUTIVE. Executive acknowledges that before
----------------------
and during the term of this Agreement, the Company has furnished and
will furnish Confidential Information developed by the Company and of
continuing value to the Company, which could be used by Executive on
behalf of a competitor of the Company to its substantial detriment. Moreover,
the parties recognize that during the course of his employment with the
Company, Executive may develop important relationships with customers and
others having valuable business relationships with the Company. In view of
the foregoing, Executive acknowledges and agrees that the restrictive covenants
contained in this Section 7 are reasonably necessary to protect the Company's
legitimate business interests and goodwill
7.1. Covenant Against Disclosure or Use of Confidential
--------------------------------------------------
Information. Executive agrees that he will not, except with the
-----------
prior written approval of the Company, disclose Confidential
Information to any person or firm other than the Company, or use
Confidential Information for personal financial gain within three (3)
years of the expiration or termination of this Agreement for whatever
cause, except that these restrictions will not apply to information
that will become generally known through no fault of Executive,
information that is disclosed to Executive by a third party that has
legitimate and unrestricted possession thereof and the unrestricted
right to make such disclosure, information that Executive can
demonstrate was within his legitimate and unrestricted possession
before his employment by the Company or its predecessor or other
information not rising to the level of a trade secret after 2 years
from expiration or termination of this Agreement. "Confidential
Information" means all business records, trade secrets, know-how
concerning marketing, customer lists or compilations, financial
information, personnel data, information contained in any documents
prepared by or for the Company and its Executives at the Company's
expense or on the Company's time or otherwise in furtherance of the
Company's business, and made available only to the Company and such of
its authorized agents as may be necessary to further the Company's
business, and other confidential information obtained by Executive in
the course of his employment hereunder. Executive further agrees to
return to the Company all of the above business records and any and
all copies of the same in his control upon termination of employment
with the Company for any reason whatsoever.
7.2. Covenant Against Post-Termination Competition.
---------------------------------------------
Executive agrees if his employment hereunder is terminated for any
reason he will not, directly or indirectly, individually or on behalf
of any Person other than the Company, for a period of six (6) months
after such termination:
(a) own, control, manage or otherwise participate in the
ownership, control or management of a business engaged in the
provision of banking products and services including commercial and
-6-
institutional lending and related services ("Banking Services") within
any part of the Territory; except for passive investments in publicly
traded companies;
(b) solicit any Customers for the purpose of selling to
them products or services competitive with the products or services
sold by the Company at the time of such termination;
(c) provide Banking Services for or on behalf of any Person
(other than for or on behalf of the Company) which is engaged within
the Territory in a business similar to the Business; or
(d) solicit or induce, or in any manner attempt to solicit
or induce, any person employed by the Company to leave such
employment, whether or not such employment is pursuant to a written
contract with the Company and whether or not such employment is at
will.
For the purpose of this Section, "Customers" means all
Persons that (a) Executive serviced or solicited on behalf of the
Company, (b) whose dealings with the Company were coordinated or
supervised, in whole or in part, by Executive, or (c) about whom
Executive obtained Confidential Information, in each case during the
one-year period immediately prior to any termination or expiration of
Executive's employment with the Company. "Territory" means the
Georgia counties of Xxxxxx, DeKalb, Xxxx, Gwinnett, Xxxxxxx, Xxxxxxx
and the county of Dade in Florida if the Company conducts business in
that market, which is the territory in which the Company conducts its
business.
7.3. Return of Company Documents and Equipment. Upon
-----------------------------------------
termination or expiration of Executive's employment for any reason, or
at any time upon the Company's request, Executive shall deliver to the
Company: all (a) files, customer lists, price lists, management reports,
memoranda, research, forms, financial data and reports, and
other documents supplied to or created by him in connection with his
employment hereunder (including all copies of the foregoing) in his
possession or control; (b) computers, modems, diskettes, instruments,
tools, devices, equipment, videos, tapes, drawings, papers, notes and
other materials, and any copies thereof, in Executive's possession or
control that relate in any way to the business or to Executive's
employment with the Company; and (c) other property relating to the
employment of Executive, including without limitation credit cards,
telephone cards, office keys, desk keys, car keys and security passes.
7.4. SURVIVAL. Executive's obligations under this
--------
Section 7 will survive any expiration or termination of this Agreement.
8. MISCELLANEOUS PROVISIONS.
------------------------
8.1 NOTICES. All notices, demands or other communications
-------
required or permitted to be given hereunder shall be in writing and
delivered in person or sent (a) by pre-paid, first class, certified or
registered air mail, return receipt requested, (b) by a national
express courier service or (c) by facsimile transmission to the
intended recipient thereof, at its address or facsimile number below.
Any such notice shall be deemed to have been duly given immediately if
given by confirmed facsimile, or five (5) days after mailing, or the
second business day after delivery to a national express courier
-7-
service, and in proving the same it shall be sufficient to show that
the envelope containing the notice was duly addressed, stamped and
posted (or that the envelope was delivered to the national express
courier service), or that receipt of a facsimile was confirmed by the
recipient.
To the Company: United Americas Bankshares, Inc.
______________________
______________________
Attention: Xxxxxxxx Xxxx-Xxxxxx, Chairman
With a copy to: Xxxxxxxx Xxxxxxx, Esq.
Xxxxxxxxxx Xxxxxxxx LLP
Suite 2800
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
To Executive: Xxxxxxx X. Xxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Either party may change the address to which notices, requests,
demands and other communications shall be delivered or mailed by
giving notice thereof to the other party in the same manner provided
herein.
8.2 PROVISIONS SEVERABLE. If any provision or covenant, or
--------------------
any part thereof, of this Agreement is held by any court to be
invalid, illegal or unenforceable, either in whole or in part, such
invalidity, illegality or unenforceability will not affect the
validity, legality or enforceability of the remaining provisions or
covenants, or any part thereof, of this Agreement, all of which will
remain in full force and effect. To the extent legally permissible,
any illegal, invalid or unenforceable provision of this Agreement will
be replaced by a valid provision that will implement the commercial
purpose of the illegal, invalid or unenforceable provision.
8.3 REMEDIES. Executive acknowledges that if he breaches
--------
or threatens to breach his covenants and agreements in this Agreement,
his actions may cause irreparable harm and damage to the Company which
could not be compensated in damages. Accordingly, if Executive
breaches or threatens to breach this Agreement, the Company will be
entitled to injunctive relief, in addition to any other rights or
remedies of the Company.
8.4 WAIVER. No failure of either party to insist, in one
------
or more instances, on performance by the other in strict accordance
with the terms and conditions of this Agreement will be deemed a
waiver or relinquishment of any right granted in this Agreement or of
the future performance of any such term or condition or of any other
term or condition of this Agreement, unless such waiver is contained
in a writing signed by the party making the waiver.
8.5 AMENDMENTS AND MODIFICATIONS. This Agreement may be
----------------------------
amended or modified only by a writing signed by both parties hereto.
-8-
8.6 GOVERNING LAW. The validity and effect of this
-------------
Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Georgia, without regard to
its principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed under seal the day and year first-above written.
UNITED AMERICAS BANKSHARES, INC.
/s/ Xxxxxxxx Xxxx-Xxxxxx
By: Xxxxxxxx Xxxx-Xxxxxx
(COMPANY SEAL) Title: cHAIRMAN
EXECUTIVE
/s/ Xxxxxxx X. Xxxxx (L.S.)
Xxxxxxx X. Xxxxx
-9-
EXHIBIT A
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of the ______ day of
_____________________, 19___ (the "Grant Date"), between United
Americas Bankshares, Inc., a Georgia corporation (the "Company"), and
Xxxxxxx X. Xxxxx (the "Optionee").
WHEREAS, the Optionee performs services for the Company; and
WHEREAS, the Board of Directors of the Company has determined to
grant the Option to the Optionee as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
---------------
1.1 The Company hereby grants to the Optionee the right and
option (the "Option") to purchase all or any part of an aggregate of
25,000 whole shares of the Company's Common Stock, $____ par value per
share ("Shares") subject to, and in accordance with, the terms and
conditions set forth in this Agreement.
1.2 The Option is not intended to qualify as an Incentive
Stock Option within the meaning of Section 422 of the Code.
2. Purchase Price.
--------------
The price at which the Optionee shall be entitled to
purchase Shares upon the exercise of the Option shall be
$_____________ per Share.
3. Duration of Option.
------------------
The Option shall be exercisable to the extent and in the
manner provided herein for a period of ten (10) years from the Grant
Date (the "Exercise Term"); provided, however, that the Option may be
earlier terminated as provided in Section 6 hereof.
4. Exercisability of Option.
------------------------
Unless otherwise provided in this Agreement, the Option shall
entitle the Optionee to purchase, in whole at any time or in part from
time to time, 10,000 of the total number of Shares covered by the
Option upon the opening of the banking subsidiary of the Company (the
"First Vesting Date") and an additional 3,000 of the total number of
Shares covered by the Option on each on the first, second, third,
fourth and fifth anniversaries of the First Vesting Date, and each
such right of purchase shall be cumulative and shall continue, unless
sooner exercised or terminated as herein provided during the remaining
period of the Exercise Term.
5. Manner of Exercise and Payment.
------------------------------
5.1 Subject to the terms and conditions of this Agreement,
the Option may be exercised by delivery of written notice to the
Company, at its principal executive office. Such notice shall state
that the Optionee is electing to exercise the Option and the number of
Shares in respect of which the Option is being exercised and shall be
signed by the person or persons exercising the Option. If requested
by the Company, such person or persons shall (i) deliver this
Agreement to the Secretary of the Company who shall endorse thereon a
notation of such exercise and (ii) provide satisfactory proof as to
the right of such person or persons to exercise the Option.
5.2 The notice of exercise described in Section 5.1 shall
be accompanied by the full purchase price for the Shares in respect of
which the Option is being exercised, in cash, by check or by transferring
Shares to the Company having a Fair Market Value on the day preceding the
date of exercise equal to the cash amount for which such Shares are substituted.
5.3 Upon receipt of notice of exercise and full payment for
the Shares in respect of which the Option is being exercised, the Company
shall take such action as may be necessary to effect the transfer to the
Optionee of the number of Shares as to which such exercise was effective.
5.4 The Optionee shall not be deemed to be the holder of,
or to have any of the rights of a holder with respect to any Shares
subject to the Option until (i) the Option shall have been exercised
pursuant to the terms of this Agreement and the Optionee shall have
paid the full purchase price for the number of Shares in respect of
which the Option was exercised, (ii) the Company shall have issued and
delivered the Shares to the Optionee, and (iii) the Optionee's name
shall have been entered as a stockholder of record on the books of the
Company, whereupon the Optionee shall have full voting and other
ownership rights with respect to such Shares.
6. Termination of Employment.
-------------------------
If the employment of the Optionee with the Company and its
Subsidiaries shall terminate for any reason, all nonvested Options
shall be forfeited. If the Company terminates Optionee's employment
without Cause (as defined in the employment agreement between Optionee
and the Company), all then vested Options may be exercised for a
period of ninety (90) days from the date of termination, but in no
event later than the expiration of the Exercise Term. If Optionee's
employment is terminated by the Optionee for any reason other than
death or disability or if the Company terminates Optionee for Cause,
the Optionee's right to exercise any then outstanding Options (whether
or not vested) shall terminate immediately upon termination of employment.
If the Optionee's termination of employment is due to death,
all nonvested Options shall be forfeited, and all then vested Options
shall continue to be exercisable at any time within six (6) months
after the date of such termination of employment, but in no event
after the expiration of the Exercise Term. In the event of the
Optionee's death, the Option shall be exercisable, to the extent
provided in this Agreement, by such persons that have acquired Optionee's
rights by will or the laws of descent and distribution, or if no such person
exists, by the Optionee's estate or a representative of the Optionee's estate.
7. Effect of Change in Control.
---------------------------
Notwithstanding anything contained to the contrary in this
Agreement, in the event of a Change in Control (as defined in the
Optionee's Employment Agreement) , the Option shall become immediately
and fully exercisable.
2
8. Nontransferability.
------------------
During the lifetime of the Optionee, this Option shall be
exercisable only by the Optionee, or if the Optionee is disabled, by
his duly appointed guardian or legal representative.
9. No Right to Continued Employment.
--------------------------------
Nothing in this Agreement shall be interpreted or construed
to confer upon the Optionee any right with respect to continuance of
employment by the Company or a Subsidiary, nor shall this Agreement
interfere in any way with the right of the Company or a Subsidiary to
terminate the Optionee's employment at any time.
10. Adjustments.
-----------
In the event of (i) any dividend payable in Shares of Common
Stock, (ii) any recapitalization, reclassification, split-up, consolidation of,
or other change in, the Common Stock, or (iii) an exchange of the then
outstanding shares of Common Stock, in connection with a merger, consolidation,
or other reorganization of the Company, or a sale by the Company of all or a
portion of its assets, for a different number or class of shares of stock or
other securities of the Company or for shares of the stock or other securities
of any other corporation; then the number and class of Shares or other
securities that shall be subject to this Option and/or the purchase
price per Share which must be paid thereafter upon exercise of this
Option shall automatically be appropriately adjusted to reflect the
event described in (i), (ii), or (iii) above. The Company's
adjustment shall be effective and final, binding and conclusive for
all purposes of this Agreement.
11. Terminating Events.
------------------
Subject to Section 7 hereof, upon the effective date of (i)
the liquidation or dissolution of the Company or (ii) a merger or consolidation
of the Company (a "Transaction"), the Option shall continue in effect in
accordance with its terms and the Optionee shall be entitled to receive in
respect of all Shares subject to the Option, upon exercise of the Option, the
same number and kind of stock, securities, cash, property or other considera-
tion that each holder of Shares was entitled to receive in the Transaction.
12. Withholding of Taxes.
--------------------
The Company shall have the right to deduct from any
distribution of cash to the Optionee an amount equal to the federal,
state and local income taxes and other amounts as may be required by
law to be withheld (the "Withholding Taxes") with respect to the
Option. If the Optionee is entitled to receive Shares upon exercise
of the Option, the Optionee shall pay the Withholding Taxes to the
Company in cash prior to the issuance of such Shares. In satisfaction
of the Withholding Taxes, the Optionee may make a written election
(the "Tax Election"), which may be accepted or rejected in the
discretion of the Company, to have withheld a portion of the Shares
issuable to him or her upon exercise of the Option, having an
aggregate Fair Market Value equal to the withholding Taxes, provided
that, if the Optionee may be subject to liability under Section 16(b)
of the Exchange Act, the election must comply with the requirements
applicable to Share transactions by such Optionees.
3
13. Modification of Agreement.
------------------------
This Agreement may be modified, amended, suspended or terminated,
and any terms or conditions may be waived, but only by a written
instrument executed by the parties hereto.
14. Severability.
------------
Should any provision of this Agreement be held by a court of
competent jurisdiction to be unenforceable or invalid for any reason,
the remaining provisions of this Agreement shall not be affected by
such holding and shall continue in full force in accordance with their
terms.
15. Governing Law.
-------------
The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of
Georgia without giving effect to the conflicts of laws principles
thereof.
16. Successors in Interest.
----------------------
This Agreement shall inure to the benefit of and be binding
upon each successor corporation. This Agreement shall inure to the
benefit of the Optionee's legal representatives. All obligations
imposed upon the Optionee and all rights granted to the Company under
this Agreement shall be final, binding and conclusive upon the
Optionee's heirs, executors, administrators and successors.
17. Resolution of Disputes.
----------------------
Any dispute or disagreement which may arise under, or as a
result of, or in any way relate to, the interpretation, construction
or application of this Agreement shall be determined by the Board of
Directors. Any determination made hereunder shall be final, binding
and conclusive on the Optionee and the Company for all purposes.
ATTEST: UNITED AMERICAS BANKSHARES, INC.
By:_______________________________
Secretary Chairman of the Board
__________________________________
Xxxxxxx X. Xxxxx
4
