EXHIBIT 10.13
EMPLOYMENT AGREEMENT DATED MAY 24, 2000, BETWEEN
REGISTRANT AND XXXXXX X. XXXXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
this 24th day of May, 2000, by and between First Sterling Banks, Inc., a Georgia
corporation (hereinafter, the "Company"), and Xxxxxx X. Xxxxxxxx (hereinafter,
"Executive"), to be effective as of the Effective Date, as defined in Section 1.
BACKGROUND
Executive is currently employed as the President and Chief Executive
Officer of the Company and The Westside Bank & Trust Company pursuant to that
certain Employment Agreement dated August 16, 1995 (the "Prior Employment
Agreement"). The Company and Main Street Banks Incorporated ("MSBI") have
entered into that certain Merger Agreement, dated as of December 1, 1999 (the
"Merger Agreement"), pursuant to which MSBI will merge with and into the Company
(the "Merger"). The Company desires to retain Executive as the President and
Chief Executive Officer of the Company and, after two years, as the Chairman of
the Board of Directors of the Company, in accordance with the terms of this
Agreement. Executive is willing to serve as such in accordance with the terms
and conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. EFFECTIVE DATE. The effective date of this Agreement (the "Effective
Date") will be the date on which the effective time of the Merger occurs, and on
such date the Prior Employment Agreement shall terminate.
2. EMPLOYMENT. Executive is hereby employed on the Effective Date as
the President and Chief Executive Officer of the Company. Beginning on the
second anniversary of the Merger, Executive shall become the Chairman of the
Board of Directors of the Company and shall continue as Chief Executive Officer
in addition to his other duties. In each such capacity, Executive shall have
such responsibilities commensurate with such positions as set forth in the
bylaws of the Company and as shall be assigned to him by the Board of Directors
of the Company. Executive will report directly to the Board of Directors of the
Company.
3. EMPLOYMENT PERIOD. Unless earlier terminated herein in accordance
with Section 6 hereof, Executive's employment shall be for a three year term
(the "Employment Period"), beginning on the Effective Date. Beginning on the
third anniversary of the Effective Date and on each anniversary of the Effective
Date, the Employment Period shall, without further action by Executive or the
Company, be
extended by an additional one-year period; PROVIDED, HOWEVER, that either
party may, by notice to the other, cause the Employment Period to cease to
extend automatically. Upon such notice, the Employment Period shall terminate
upon the expiration of the then-current term, including any prior extensions.
4. EXTENT OF SERVICE. During the Employment Period, and excluding any
periods of vacation to which Executive is entitled, Executive agrees to devote
his business time, attention, skill and efforts exclusively to the faithful
performance of his duties hereunder; PROVIDED, HOWEVER, that it shall not be a
violation of this Agreement for Executive to (i) devote reasonable periods of
time to charitable and community activities and, with the approval of the
Company, industry or professional activities, and/or (ii) manage personal
business interests and investments, so long as such activities do not materially
interfere with the performance of Executive's responsibilities under this
Agreement. It is expressly understood and agreed that to the extent that any
such activities have been conducted by Executive prior to date of this
Agreement, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the Effective Date
shall not thereafter be deemed to interfere with the performance of Executive's
responsibilities hereunder.
5. COMPENSATION AND BENEFITS.
(a) BASE SALARY. During each year of the Employment Period,
the Company will pay to Executive annual base salary in the amount equal to U.S.
$154,000 ("Base Salary"), less normal withholdings, payable in equal monthly or
more frequent installments as are customary under the Company's payroll
practices from time to time. The Compensation Committee of the Board of
Directors of the Company shall review Executive's Base Salary annually and in
its sole discretion, subject to approval of the Board of Directors of the
Company, may increase Executive's Base Salary from year to year; provided that
annual increases of at least 3%, intended to approximate cost of living
increases, shall be automatic. The annual review of Executive's salary by the
Board will consider, among other things, Executive's own performance and the
Company's performance, as well as any recommendations of an outside consulting
firm that may be engaged by the Company, from time to time, to evaluate
management compensation.
(b) INCENTIVE, SAVINGS AND RETIREMENT PLANS. During the
Employment Period, Executive shall be entitled to participate in all incentive,
savings and retirement plans, practices, policies and programs applicable
generally to senior executive officers of the Company ("Peer Executives"), and
on the same basis as such Peer Executives.
(c) WELFARE BENEFIT PLANS. During the Employment Period,
Executive and Executive's family shall be eligible for participation in, and
shall receive all benefits under, the welfare benefit plans, practices, policies
and programs provided by the Company (including, without limitation, medical,
prescription, dental, disability, employee life, group life, accidental death
and travel accident insurance plans and programs) ("Welfare Plans") to the
extent applicable generally to Peer Executives.
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(d) EXPENSES. During the Employment Period, Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
Executive in accordance with the policies, practices and procedures of the
Company to the extent applicable generally to Peer Executives.
(e) FRINGE BENEFITS. During the Employment Period, Executive
shall be entitled to fringe benefits in accordance with the plans, practices,
programs and policies of the Company in effect for Peer Executives. Without
limiting the foregoing, during the Employment Period, Executive shall be
provided a car allowance or a Company-owned car of a model appropriate to his
position, as determined by the Compensation Committee of the Board of Directors
of the Company.
6. TERMINATION OF AGREEMENT.
(a) DEATH, RETIREMENT OR DISABILITY. Executive's employment
shall terminate automatically upon Executive's death or Retirement during the
Employment Period. For purposes of this Agreement, "Retirement" shall mean
normal retirement as defined in the Company's then-current retirement plan, or
if there is no such retirement plan, "Retirement" shall mean voluntary
termination after age 65 with ten years of service. If the Company determines in
good faith that the Disability of Executive has occurred during the Employment
Period (pursuant to the definition of Disability set forth below), it may give
to Executive written notice of its intention to terminate Executive's
employment. In such event, Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such written notice by
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, Executive shall not have returned to full-time performance
of Executive's duties. For purposes of this Agreement, "Disability" shall mean
the inability of Executive, as determined by the Board, to substantially perform
the essential functions of his regular duties and responsibilities, with or
without reasonable accommodation, due to a medically determinable physical or
mental illness which has lasted (or can reasonably be expected to last) for a
period of six consecutive months. At the request of Executive or his personal
representative, the Board's determination that the Disability of Executive has
occurred shall be certified by two physicians mutually agreed upon by Executive,
or his personal representative, and the Company. Failing such independent
certification (if so requested by Executive), Executive's termination shall be
deemed a termination by the Company without Cause and not a termination by
reason of his Disability.
(b) TERMINATION BY THE COMPANY. The Company may terminate
Executive's employment during the Employment Period with or without Cause. For
purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of Executive to
perform substantially Executive's duties with the Company (other than any such
failure resulting from incapacity due to physical or mental illness, and
specifically excluding any failure
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by Executive, after reasonable efforts, to meet performance expectations),
after a written demand for substantial performance is delivered to Executive
by the Board of Directors of the Company which specifically identifies the
manner in which the Board believes that Executive has not substantially
performed Executive's duties, or
(ii) the willful engaging by Executive in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company; or
(iii) a requirement by any state or federal authority
regulating the Company or its subsidiaries that Executive be removed from his
office.
For purposes of this provision, no act or failure to act, on the part
of Executive shall be considered "willful" unless it is done, or omitted to be
done, by Executive in bad faith or without reasonable belief that Executive's
action or omission was in the best interests of the Company and its shareholders
and subsidiaries. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon the advice of
counsel for the Company shall be conclusively presumed to be done, or omitted to
be done, by Executive in good faith and in the best interests of the Company,
its shareholders and subsidiaries. The cessation of employment of Executive
under subparagraph (i) or (ii) above shall not be deemed to be for Cause unless
and until there shall have been delivered to Executive a copy of a resolution
duly adopted by the affirmative vote of not less than three-fourths of the
entire membership of the Board of Directors the Company at a meeting of such
Board called and held for such purpose (after reasonable notice is provided to
Executive and Executive is given an opportunity, together with counsel, to be
heard before such Board), finding that, in the good faith opinion of such Board,
Executive is guilty of the conduct described in subparagraph (i) or (ii) above,
and specifying the particulars thereof in detail.
(c) TERMINATION BY EXECUTIVE. Executive's employment may be
terminated by Executive for Good Reason or no reason. For purposes of this
Agreement, "Good Reason" shall mean:
(i) without the written consent of Executive, a
change in Executive's status, title, position or responsibilities (including
reporting responsibilities) which, in Executive's reasonable judgment,
represents an adverse change from his status, title, position or
responsibilities as in effect at the Effective Date or, if greater, at any time
thereafter; the assignment to Executive of any duties or responsibilities which,
in Executive's reasonable judgment, are inconsistent with his status, title,
position or responsibilities as in effect at the Effective Date or, if greater,
at any time thereafter; or any other change in condition or circumstances that
in Executive's reasonable judgment makes it materially more difficult for
Executive to carry out the duties and responsibilities of his then-existing
office; provided that Good Reason under this subparagraph (i) excludes an
isolated, insubstantial and inadvertent action not taken in bad faith and which
is remedied by the Company promptly after receipt of notice thereof given by
Executive;
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(ii) a reduction, without the written consent of
Executive, in Executive's Base Salary as in effect on the Effective Date or as
the same may be increased from time to time, or any failure to pay Executive any
compensation or benefits to which he is entitled within five (5) days of the
date due;
(iii) the failure by the Company (a) to continue in
effect (without reduction in benefit level and/or reward opportunities) any
compensation or employee benefit plan in which Executive participated as of the
Effective Date, or at any time thereafter, that 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 (b) to continue
Executive's participation therein (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 therein relative to other
participants; or
(iv) the Company's requiring Executive, without
his consent, to be based at any office or location other than in Xxxx County,
Georgia or to travel on Company business to a substantially greater extent
than required immediately prior to the Effective Date;
(v) the failure, for any reason, of Executive to
be re-elected to the Board of Directors of the Company;
(vi) the insolvency or the filing by any party,
including the Company or any of its subsidiaries, of a petition for
bankruptcy of the Company or any such subsidiary, which petition is not
dismissed within sixty (60) days;
(vii) any failure by the Company to comply with
and satisfy Section 14(c) of this Agreement;
(viii) any purported termination by the Company of
Executive's employment otherwise than as expressly permitted by this
Agreement; or
(ix) the material breach by the Company of any
provision of this Agreement.
Good Reason shall not include Executive's death or Disability.
Executive's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any circumstance constituting Good Reason hereunder. Any
good faith determination of Good Reason made by Executive shall be conclusive.
(d) NOTICE OF TERMINATION. Any termination by the Company for
Cause, or by Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 15(f) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i)
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indicates the specific termination provision in this Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated and (iii) specifies the
termination date. If a dispute exists concerning the provisions of this
Agreement that apply to Executive's termination of employment, the parties
shall pursue the resolution of such dispute with reasonable diligence. Within
five (5) days of such a resolution, any party owing any payments pursuant to
the provisions of this Agreement shall make all such payments together with
interest accrued thereon at the rate provided in Section 1274(b)(2)(B) of the
Internal Revenue Code of 1986, as amended (the "Code").
(e) DATE OF TERMINATION. "Date of Termination" means (i) if
Executive's employment is terminated other than by reason of death or
Disability, the date of receipt of the Notice of Termination, or any later date
specified therein, or (ii) if Executive's employment is terminated by reason of
death or Disability, the Date of Termination will be the date of death or the
Disability Effective Date, as the case may be.
7. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) TERMINATION BY EXECUTIVE FOR GOOD REASON; TERMINATION BY
THE COMPANY OTHER THAN FOR CAUSE. If, during the Employment Period, the Company
shall terminate Executive's employment other than for Cause, or Executive shall
terminate employment for Good Reason, then:
(i) the Company shall pay to Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the
following amounts:
A. the sum of (1) Executive's Base Salary through the Date of
Termination to the extent not theretofore paid, (2) the product of (x)
Executive's target annual bonus for the year in which the Date of
Termination occurred (the "Target Annual Bonus") and (y) a fraction,
the numerator of which is the number of days in the current fiscal year
through the Date of Termination, and the denominator of which is 365,
(3) any accrued vacation pay to the extent not theretofore paid, and
(4) unless Executive has elected a different payout date in a prior
deferral election, any compensation previously deferred by Executive
(together with any accrued interest or earnings thereon) to the extent
not theretofore paid (the sum of the amounts described in clauses (1),
(2), (3) and (4) shall be hereinafter referred to as the "Accrued
Obligations"); and
B. the amount equal to three times the sum of (1) Executive's
Base Salary in effect as of the Date of Termination, and (2) the Target
Annual Bonus; and
(ii) for three years after the Date of
Termination, or such longer period as may be provided by the terms of the
appropriate plan, program, practice or
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policy, the Company shall continue benefits to Executive and/or Executive's
family at least equal to those which would have been provided to them in
accordance with the Welfare Plans described in Section 5(c) of this Agreement
if Executive's employment had not been terminated or, if more favorable to
Executive, as in effect generally at any time thereafter with respect to
other Peer Executives and their families, provided, however, that if
Executive becomes re-employed with another employer and is eligible to
receive medical or other welfare benefits under another employer provided
plan, the medical and other welfare benefits described herein shall be
secondary to those provided under such other plan during such applicable
period of eligibility; and
(iii) all of Executive's outstanding stock options
and other incentive awards from the Company in the nature of rights that may
be exercised shall become fully exercisable and all restrictions on
Executive's outstanding awards of restricted stock shall lapse; and
(iv) to the extent not theretofore paid or
provided, the Company shall timely pay or provide to Executive any other
amounts or benefits required to be paid or provided or which Executive is
eligible to receive under any plan, program, policy or practice or contract
or agreement of the Company (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits").
(b) DEATH; DISABILITY OR RETIREMENT. If Executive's employment
is terminated by reason of Executive's death, Disability or Retirement during
the Employment Period, this Agreement shall terminate without further
obligations to Executive or his legal representatives under this Agreement,
other than for payment of Accrued Obligations and the timely payment or
provision of Other Benefits. Accrued Obligations shall be paid to Executive's
estate or beneficiary, as applicable, in a lump sum in cash within 30 days of
the Date of Termination. With respect to the provision of Other Benefits, the
term Other Benefits as used in this Section 7(b) shall include, without
limitation, and Executive's estate and/or beneficiaries shall be entitled to
receive, benefits under such plans, programs, practices and policies relating to
death, disability or retirement benefits, if any, as are applicable to Executive
on the Date of Termination.
(c) TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION WITHOUT
GOOD REASON. If Executive's employment shall be terminated for Cause during the
Employment Period, or if Executive voluntarily terminates employment during the
Employment Period without Good Reason, this Agreement shall terminate without
further obligations to Executive, other than for payment of Accrued Obligations
(excluding the pro-rata bonus described in clause 2 of Section 7(a)(i)(A)) and
the timely payment or provision of Other Benefits.
8. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company and for which Executive may qualify,
nor, subject to Section 15(d), shall anything herein limit or otherwise affect
such rights as Executive may
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have under any contract or agreement with the Company. Amounts which are
vested benefits or which Executive is otherwise entitled to receive under any
plan, policy, practice or program of or any contract or agreement with the
Company or any of its affiliated companies at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice
or program or contract or agreement except as explicitly modified by this
Agreement.
9. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary
notwithstanding and except as set forth below, in the event it shall be
determined that any payment or distribution by the Company to or for the
benefit of Executive (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Section 9) (a
"Payment") would be subject to the excise tax imposed by Section 4999 of the
Code or any interest or penalties are incurred by Executive with respect to
such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"),
then Executive shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by Executive of all
taxes (including any interest or penalties imposed with respect to such
taxes), including, without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax imposed upon the
Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
(b) All determinations required to be made under this
Section 9, including whether and when a Gross-Up Payment is required and the
amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by a certified public
accounting firm selected by Executive and reasonably acceptable to the
Company as may be designated by Executive (the "Accounting Firm") which shall
provide detailed supporting calculations both to the Company and Executive
within 15 business days of the receipt of notice from Executive that there
has been a Payment, or such earlier time as is reasonably requested by the
Company. All fees and expenses of the Accounting Firm shall be borne solely
by the Company. Any Gross-Up Payment, as determined pursuant to this Section
9, shall be paid by the Company to Executive within five days of the receipt
of the Accounting Firm's determination. Any determination by the Accounting
Firm shall be binding upon the Company and Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have
been made ("Underpayment"), consistent with the calculations required to be
made hereunder. In the event that Executive thereafter is required to make a
payment of any Excise Tax, the Accounting Firm shall determine the amount of
the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of Executive.
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10. COSTS OF ENFORCEMENT. In any action taken in good faith relating
to the enforcement of this Agreement or any provision herein, Executive shall
be entitled to be paid any and all costs and expenses incurred by him in
enforcing or establishing his rights thereunder, including, without
limitation, reasonable attorneys' fees, whether suit be brought or not, and
whether or not incurred in trial, bankruptcy or appellate proceedings.
11. REPRESENTATIONS AND WARRANTIES. Executive hereby represents and
warrants to the Company that Executive is not a party to, or otherwise
subject to, any covenant not to compete with any person or entity, and
Executive's execution of this Agreement and performance of his obligations
hereunder will not violate the terms or conditions of any contract or
obligation, written or oral, between Executive and any other person or entity.
12. RESTRICTIONS ON CONDUCT OF EXECUTIVE.
(a) GENERAL. Executive and the Company understand and agree
that the purpose of the provisions of this Section 12 is to protect
legitimate business interests of the Company, as more fully described below,
and is not intended to eliminate Executive's post-employment competition with
the Company PER SE, nor is it intended to impair or infringe upon Executive's
right to work, earn a living, or acquire and possess property from the fruits
of his labor. Executive hereby acknowledges that the post-employment
restrictions set forth in this Section 12 are reasonable and that they do
not, and will not, unduly impair his ability to earn a living after the
termination of this Agreement. Therefore, subject to the limitations of
reasonableness imposed by law, Executive shall be subject to the restrictions
set forth in this Section 12.
(b) DEFINITIONS. The following capitalized terms used in
this Section 12 shall have the meanings assigned to them below, which
definitions shall apply to both the singular and the plural forms of such
terms:
"COMPETITIVE POSITION" means any employment with a
Competitor in which Executive will use or is likely to use any Confidential
Information or Trade Secrets, or in which Executive has duties for such
Competitor that relate to Competitive Services and that are the same or
similar to those services actually performed by Executive for the Company;
"COMPETITIVE SERVICES" means the provision of
banking products and services similar in scope to those provided by the
Company and its subsidiaries as of the Effective Date.
"COMPETITOR" means any Person engaged, wholly or
in part, in Competitive Services.
"CONFIDENTIAL INFORMATION" means all information
regarding the Company, its activities, business or clients that is the
subject of reasonable efforts by the Company to maintain its confidentiality
and that is not generally disclosed by practice or
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authority to persons not employed by the Company, but that does not rise to
the level of a Trade Secret. "Confidential Information" shall include, but is
not limited to, financial plans and data concerning the Company; management
planning information; business plans; operational methods; market studies;
marketing plans or strategies; product development techniques or plans;
customer lists; details of customer contracts; current and anticipated
customer requirements; past, current and planned research and development;
business acquisition plans; and new personnel acquisition plans.
"Confidential Information" shall not include information that has become
generally available to the public by the act of one who has the right to
disclose such information without violating any right or privilege of the
Company. This definition shall not limit any definition of "confidential
information" or any equivalent term under state or federal law.
"DETERMINATION DATE" means the date of termination
of Executive's employment with the Company for any reason whatsoever or any
earlier date (during the Employment Period) of an alleged breach of the
Restrictive Covenants by Executive.
"PERSON" means any individual or any corporation,
partnership, joint venture, limited liability company, association or other
entity or enterprise.
"PRINCIPAL OR REPRESENTATIVE" means a principal,
owner, partner, shareholder, joint venturer, investor, member, trustee,
director, officer, manager, employee, agent, representative or consultant.
"PROTECTED CUSTOMERS" means any Person to whom the
Company has sold its products or services or solicited to sell its products
or services during the twelve (12) months prior to the Determination Date.
"PROTECTED EMPLOYEES" means employees of the
Company who were employed by the Company at any time within six (6) months
prior to the Determination Date.
"RESTRICTED PERIOD" means the Employment Period
and a period extending two (2) years from the Date of Termination.
"RESTRICTED TERRITORY" means the areas within a 25
mile radius of each banking office of the Company or its subsidiaries
immediately after the Effective Date.
"RESTRICTIVE COVENANTS" means the restrictive
covenants contained in Section 9(c) hereof.
"TRADE SECRET" means all information, without
regard to form, including, but not limited to, technical or nontechnical
data, a formula, a pattern, a compilation, a program, a device, a method, a
technique, a drawing, a process, financial data, financial plans, product
plans, distribution lists or a list of actual or potential
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customers, advertisers or suppliers which is not commonly known by or
available to the public and which information: (A) derives economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; and (B) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. Without limiting
the foregoing, Trade Secret means any item of confidential information that
constitutes a "trade secret(s)" under the common law or statutory law of the
State of Georgia.
(c) RESTRICTIVE COVENANTS.
(i) RESTRICTION ON DISCLOSURE AND USE OF
CONFIDENTIAL INFORMATION AND TRADE SECRETS. Executive understands and agrees
that the Confidential Information and Trade Secrets constitute valuable
assets of the Company and its affiliated entities, and may not be converted
to Executive's own use. Accordingly, Executive hereby agrees that Executive
shall not, directly or indirectly, at any time during the Restricted Period
reveal, divulge, or disclose to any Person not expressly authorized by the
Company any Confidential Information, and Executive shall not, directly or
indirectly, at any time during the Restricted Period use or make use of any
Confidential Information in connection with any business activity other than
that of the Company. Throughout the term of this Agreement and at all times
after the date that this Agreement terminates for any reason, Executive shall
not directly or indirectly transmit or disclose any Trade Secret of the
Company to any Person, and shall not make use of any such Trade Secret,
directly or indirectly, for himself or for others, without the prior written
consent of the Company. The parties acknowledge and agree that this Agreement
is not intended to, and does not, alter either the Company's rights or
Executive's obligations under any state or federal statutory or common law
regarding trade secrets and unfair trade practices.
Anything herein to the contrary notwithstanding, Executive shall not
be restricted from disclosing or using Confidential Information that is
required to be disclosed by law, court order or other legal process;
PROVIDED, HOWEVER, that in the event disclosure is required by law, Executive
shall provide the Company with prompt notice of such requirement so that the
Company may seek an appropriate protective order prior to any such required
disclosure by Executive.
(ii) NONSOLICITATION OF PROTECTED EMPLOYEES.
Executive understands and agrees that the relationship between the Company
and each of its Protected Employees constitutes a valuable asset of the
Company and may not be converted to Executive's own use. Accordingly,
Executive hereby agrees that during the Restricted Period Executive shall not
directly or indirectly on Executive's own behalf or as a Principal or
Representative of any Person or otherwise solicit or induce any Protected
Employee to terminate his or her employment relationship with the Company or
to enter into employment with any other Person.
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(iii) RESTRICTION ON RELATIONSHIPS WITH PROTECTED
CUSTOMERS. Executive understands and agrees that the relationship between the
Company and each of its Protected Customers constitutes a valuable asset of
the Company and may not be converted to Executive's own use. Accordingly,
Executive hereby agrees that, during the Restricted Period, Executive shall
not, without the prior written consent of the Company, directly or
indirectly, on Executive's own behalf or as a Principal or Representative of
any Person, solicit, divert, take away or attempt to solicit, divert or take
away a Protected Customer for the purpose of providing or selling Competitive
Services; PROVIDED, HOWEVER, that the prohibition of this covenant shall
apply only to Protected Customers with whom Executive had Material Contact on
the Company's behalf during the twelve (12) months immediately preceding the
termination of his employment hereunder. For purposes of this Agreement,
Executive had "Material Contact" with a Protected Customer if (a) he had
business dealings with the Protected Customer on the Company's behalf; (b) he
was responsible for supervising or coordinating the dealings between the
Company and the Protected Customer; or (c) he obtained Trade Secrets or
Confidential Information about the customer as a result of his association
with the Company.
(iv) NONCOMPETITION WITH THE COMPANY. The parties
acknowledge: (A) that Executive's services under this Agreement require
special expertise and talent in the provision of Competitive Services and
that Executive will have substantial contacts with customers of the Company;
(B) that pursuant to this Agreement, Executive will be placed in a position
of trust and responsibility and he will have access to a substantial amount
of Confidential Information and Trade Secrets and that the Company is placing
him in such position and giving him access to such information in reliance
upon his agreement not to compete with the Company during the Restricted
Period; (C) that due to his management duties, Executive will be the
repository of a substantial portion of the goodwill of the Company and would
have an unfair advantage in competing with the Company; (D) that due to
Executive's special experience and talent, the loss of Executive's services
to the Company under this Agreement cannot reasonably or adequately be
compensated solely by damages in an action at law; (E) that Executive is
capable of competing with the Company; and (F) that Executive is capable of
obtaining gainful, lucrative and desirable employment that does not violate
the restrictions contained in this Agreement. In consideration of the
compensation and benefits being paid and to be paid by the Company to
Executive hereunder, Executive hereby agrees that, during the Restricted
Period, Executive will not, without prior written consent of the Company,
directly or indirectly seek or obtain a Competitive Position in the
Restricted Territory with a Competitor; PROVIDED, HOWEVER, that the
provisions of this Agreement shall not be deemed to prohibit the ownership by
Executive of any securities of the Company or its affiliated entities or not
more than five percent (5%) of any class of securities of any corporation
having a class of securities registered pursuant to the Securities Exchange
Act of 1934, as amended.
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(d) ENFORCEMENT OF RESTRICTIVE COVENANTS.
(i) RIGHTS AND REMEDIES UPON BREACH. In the event
Executive breaches, or threatens to commit a breach of, any of the provisions
of the Restrictive Covenants, the Company shall have the right and remedy to
enjoin, preliminarily and permanently, Executive from violating or
threatening to violate the Restrictive Covenants and to have the Restrictive
Covenants specifically enforced by any court of competent jurisdiction, it
being agreed that any breach or threatened breach of the Restrictive
Covenants would cause irreparable injury to the Company and that money
damages would not provide an adequate remedy to the Company. Such right and
remedy shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company at law or in equity.
(ii) SEVERABILITY OF COVENANTS. Executive
acknowledges and agrees that the Restrictive Covenants are reasonable and
valid in time and scope and in all other respects. The covenants set forth in
this Agreement shall be considered and construed as separate and independent
covenants. Should any part or provision of any covenant be held invalid, void
or unenforceable in any court of competent jurisdiction, such invalidity,
voidness or unenforceability shall not render invalid, void or unenforceable
any other part or provision of this Agreement. If any portion of the
foregoing provisions is found to be invalid or unenforceable by a court of
competent jurisdiction because its duration, the territory, the definition of
activities or the definition of information covered is considered to be
invalid or unreasonable in scope, the invalid or unreasonable term shall be
redefined, or a new enforceable term provided, such that the intent of the
Company and Executive in agreeing to the provisions of this Agreement will
not be impaired and the provision in question shall be enforceable to the
fullest extent of the applicable laws.
13. ARBITRATION. Any claim or dispute arising under this Agreement
shall be subject to arbitration, and prior to commencing any court action,
the parties agree that they shall arbitrate all controversies. The
arbitration shall be conducted in Atlanta, Georgia, in accordance with the
Employment Dispute Rules of the American Arbitration Association and the
Federal Arbitration Act, 9 U.S.C. Section 1, ET. SEQ. The arbitrator(s) shall
be authorized to award both liquidated and actual damages, in addition to
injunctive relief, but no punitive damages. Such an award shall be binding
and conclusive upon the parties hereto, subject to 9 U.S.C. Section 10. Each
party shall have the right to have the award made the judgment of a court of
competent jurisdiction.
14. ASSIGNMENT AND SUCCESSORS.
(a) This Agreement is personal to Executive and without the
prior written consent of the Company shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
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(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
15. MISCELLANEOUS.
(a) WAIVER. 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 shall not 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.
(b) SEVERABILITY. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(c) OTHER AGENTS. Nothing in this Agreement is to be
interpreted as limiting the Company from employing other personnel on such terms
and conditions as may be satisfactory to it.
(d) ENTIRE AGREEMENT. Except as provided herein, this
Agreement contains the entire agreement between the Company and Executive with
respect to the subject matter hereof and, from and after the Effective Date,
this Agreement shall supersede any other agreement between the parties with
respect to the subject matter hereof.
(e) GOVERNING LAW. Except to the extent preempted by federal
law, and without regard to conflict of laws principles, the laws of the State of
Georgia shall govern this Agreement in all respects, whether as to its validity,
construction, capacity, performance or otherwise.
(f) NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered or three days after mailing if
mailed, first class, certified mail, postage prepaid:
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To Company: First Sterling Banks, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Secretary
To Executive: Xxxxxx X. Xxxxxxxx
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Any 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.
(g) AMENDMENTS AND MODIFICATIONS. This Agreement may be
amended or modified only by a writing signed by both parties hereto, which makes
specific reference to this Agreement.
(h) CONSTRUCTION. Each party and his or its counsel have
reviewed this Agreement and have been provided the opportunity to revise this
Agreement and accordingly, the normal rule of construction to the effect that
any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement. Instead, the language of all
parts of this Agreement shall be construed as a whole, and according to its fair
meaning, and not strictly for or against either party.
(SIGNATURES ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first above written.
FIRST STERLING BANKS, INC.
By: /s/ Xxxxxx X. Xxxxxx III
-------------------------------
Title: Chairman of the Board of Directors
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx
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