EXHIBIT 10.14
EMPLOYMENT AGREEMENT DATED MAY 24, 2000, BETWEEN
REGISTRANT AND XXXXXX X. XXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered
into this 24th day of May, 2000, by and among First Sterling Banks, Inc., a
Georgia corporation (hereinafter, the "Company"), and Xxxxxx X. Xxxxxx III
(hereinafter, "Executive"), to be effective as of the Effective Date, as
defined in Section 1.
BACKGROUND
Executive currently serves as the Chairman of the Board of
Directors, President and Chief Executive Officer of Main Street Banks
Incorporated ("Main Street") and as Vice Chairman of the Board of Directors
of Main Street Bank ("MSB"). The Company and Main Street have entered into
that certain Merger Agreement, dated as of December 1, 1999 (the "Merger
Agreement"), pursuant to which Main Street will merge with and into the
Company (the "Merger"). The Company desires to retain Executive as the
Chairman of the Board of Directors of the Company and Vice Chairman of the
Board of Directors of MSB for two years after the Merger and thereafter,
though June 30, 2008, in the capacity of Chairman Emeritus of the Company and
Vice Chairman of the Board of Directors of MSB, 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.
2. EMPLOYMENT. Executive is hereby employed on the Effective Date as
the Chairman of the Board of Directors of the Company and Vice Chairman of
the Board of Directors of MSB. In such capacity, Executive shall attend and
serve as chairman of meetings of the Board of Directors of the Company and
shall have such other responsibilities commensurate with such positions as
set forth in the bylaws of the Company and MSB and as shall be assigned to
him by the respective Boards of Directors of the Company and MSB. Executive
will report directly to the Board of Directors of the Company. On the second
anniversary of the Effective Date, Executive will resign as Chairman of the
Board of Directors of the Company and take on the position of Chairman
Emeritus of the Company and retain his position and duties as Vice Chairman
of the Board of Directors of MSB for the remainder of the Term. In his
capacity as Chairman Emeritus of the Company, Executive shall be an active
participant in strategic planning, business development, and development and
maintenance of corporate, shareholder and
community relations for the Company and shall advise the Board of Directors
with respect to proposed mergers and acquisitions.
3. TERM. Unless earlier terminated herein in accordance with Section
6 hereof, this Agreement shall be for the period beginning on the Effective
Date and ending on June 30, 2008 (the "Term").
4. EXTENT OF SERVICE. During the Term, and excluding any periods of
vacation to which Executive is entitled, Executive agrees to devote
reasonable business time and attention to the performance of his duties
hereunder and shall faithfully attend meetings of the Board of Directors of
the Company. 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 Term, the Company will
pay to Executive annual base salary in the amount equal to U.S. $200,000
("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) SAVINGS AND RETIREMENT PLANS. During the Term, Executive
shall be entitled to participate in all 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, with full credit given for Executive's total accumulated
years of service at Main Street for purposes of determining vesting and
eligibility.
(c) WELFARE BENEFIT PLANS. During the Term, Executive and
Executive's family shall be eligible for participation in, and shall receive
all benefits under, the
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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, with full credit given for Executive's total
accumulated years of service at Main Street for purposes of determining
vesting and eligibility. In the event that participation in any such Welfare
Plan is barred for any reason, the Company shall arrange to provide Executive
and his family with insurance benefits substantially similar to those to
which they would have been entitled to receive under the Welfare Plans from
which Executive's continued participation is barred. Without limiting the
foregoing, the Company shall cause MSB to continue with its obligations under
that certain Split-Dollar Agreement, dated as of June 27, 1997, by and among
MSB, Executive and the Xxxxxx Family Trust, with respect that certain
$2,000,000 face amount life insurance policy on Executive's life.
(d) EXPENSES. During the Term, 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 Term, 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 Term, Executive shall be provided a car allowance of
not less than $4,200 per year.
(f) PAST SERVICE CREDIT. Executive shall be given full credit for
Executive's years of service with Main Street and its predecessors for all
purposes (other than for benefit accrual purposes) under the plans, programs,
policies, agreements and practices covering Executive pursuant to this
Section 5. The Company shall cause the Welfare Plans to (i) waive, with
respect to Executive, any waiting period and restrictions and limitations for
preexisting conditions or insurability, and (ii) credit Executive with any
deductible, co-payment, co-insurance, or maximum out-of-pocket payments made
by Executive under the Welfare Plans so as to reduce the amount of any
deductible, co-payment, co-insurance or maximum out-of-pocket payments
payable by Executive under the Welfare Plans.
6. TERMINATION OF AGREEMENT.
(a) DEATH. This Agreement shall be terminated automatically upon
Executive's death during the Term.
(b) TERMINATION BY THE COMPANY. The Company may terminate
Executive's service during the Term with or without Cause. For purposes of
this Agreement, "Cause" shall mean:
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(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 by Executive, after reasonable efforts, to
meet performance expectations), after a written demand for substantial
performance is delivered to Executive by the President or the Board of
Directors of the Company which specifically identifies the manner in which
such Board or the President 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.
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.
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. The
cessation of Executive's service 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 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 service may be
terminated by Executive for Good Reason or no reason. For purposes of this
Agreement, "Good Reason" shall mean:
(i) the failure, for any reason, during the first two years
of the Term, of Executive to be re-elected to the Board of Directors of the
Company;
(ii) without the written consent of Executive, the
assignment to Executive of any duties inconsistent in any material respect
with Executive's position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as in effect on the
Effective Date, or any other action by the Company which results in a
diminution in such position or authority (other than Executive's change in
status from Chairman of the Board to Chairman Emeritus of the Company in
accordance with Section 3 of this Agreement and the resulting change in
duties and responsibilities commensurate therewith);
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(iii) a reduction by the Company in Executive's Base Salary
and benefits as in effect on the Effective Date or as the same may be
increased from time to time;
(iv) the Company's requiring Executive, without his consent,
to be based at any office or location other than in Covington, Georgia or to
travel on Company business to a substantially greater extent than required
immediately prior to the Effective Date;
(v) the inability of Executive to perform his duties
hereunder 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 (as certified by two physicians mutually agreed upon by
Executive, or his personal representative, and the Company);
(vi) any failure by the Company to comply with and satisfy
Section 14(c) of this Agreement; or
(vii) the material breach of this Agreement by the Company.
(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) 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 service is terminated other than by reason of death, the date of
receipt of the Notice of Termination, or any later date specified therein, or
(ii) if Executive's service is terminated by reason of death, the Date of
Termination will be the date of death.
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 Term, the Company shall
terminate Executive's service other than for Cause, or Executive shall
terminate employment for Good Reason, then:
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(i) the Company shall pay to Executive in a lump sum in
cash within 30 days after the Date of Termination the sum of (1) Executive's
Base Salary through the Date of Termination to the extent not theretofore
paid, and (2) 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) and (2)
shall be hereinafter referred to as the "Accrued Obligations"); and
(ii) the Company shall continue to pay Executive his Base
Salary for the remainder of the Term as if his service had not been
terminated; and
(iii) for the remainder of the Term, or such longer period as
may be provided by the terms of the appropriate plan, program, practice or
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 service 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
(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. If Executive's service is terminated by reason of
Executive's death during the Term, this Agreement shall terminate without
further obligations to Executive's 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 benefits, if any, as are applicable to
Executive on the date of his death.
(c) TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION WITHOUT GOOD
REASON. If Executive's service shall be terminated for Cause during the Term,
or if Executive voluntarily terminates service during the Term without Good
Reason, this Agreement
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shall terminate without further obligations to Executive, other than for
payment of Accrued Obligations 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 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
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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.
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-service 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-service 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.
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"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 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 service with the Company for any reason whatsoever or any earlier
date (during the Term) 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 Term and a period extending two
(2) years from the termination of Executive's service with the Company.
"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.
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"RESTRICTIVE COVENANTS" means the restrictive covenants
contained in Section 12(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 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
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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.
(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 service 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
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securities of any corporation having a class of securities registered
pursuant to the Securities Exchange Act of 1934, as amended.
(d) CONSIDERATION FOR THE RESTRICTIVE COVENANTS. In consideration
for the Executive entering into the Restrictive Covenants, the Company shall
pay to the Executive the amount of $200,000 per year throughout the Term.
(e) 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.
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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.
(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.
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(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:
To Company: First Sterling Banks, Inc.
Xxxxxx X. Xxxxxxxx, President and CEO
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
To Executive: Xxxxxx X. Xxxxxx III
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx
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.
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. Xxxxxxxx
Title: President and CEO
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx III
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Xxxxxx X. Xxxxxx III
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