Exhibit 10.22
EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement") is made by and between The
InterCept Group, Inc., a Georgia corporation (the "Company"), and G. Xxxx Xxxxx,
an individual resident of Tennessee (the "Executive"), as of the 19th day of
February 2002 (the "Effective Date").
The Company seeks to employ the Executive as its President of the
Company. The Board of Directors of the Company (the "Board") expects that the
Executive's contribution to the growth and success of the Company will be
substantial. The Board desires to encourage the dedication of the Executive to
the Company, which will promote the best interests of the Company and its
shareholders. The Executive is willing to serve the Company on the terms and
conditions herein provided.
Certain capitalized terms used in this Agreement are defined in
Section 18.
In consideration of the foregoing, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree (as of the Effective Date) that:
1. Employment. The Company shall employ the Executive, and the
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Executive shall serve the Company, as President of the Company upon the terms
and conditions set forth herein. The Executive shall have such authority and
responsibilities as are consistent with his position and which may be set forth
in the Bylaws or assigned by the CEO from time to time. The Executive shall
devote his full business time, attention, skill and efforts to the performance
of his duties hereunder, except during periods of illness or periods of vacation
and leaves of absence consistent with Company policy. The Executive may devote
reasonable periods of time to serve as a director or advisor to other
organizations, to perform charitable and other community activities, and to
manage his personal investments; provided, however, that such activities are
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approved by the CEO, do not materially interfere with the performance of his
duties hereunder and are not in conflict or competitive with, or adverse to, the
interests of the Company.
2. Term. Unless earlier terminated as provided herein, the Executive's
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employment under this Agreement shall be for a continuing term of two (2) years
(the "Term"), which shall be extended automatically (without further action of
the Company or the Executive) each day for an additional day so that the
remaining term shall continue to be two years; provided, however, that either
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party may at any time, by written notice to the other, fix the Term to a finite
term of two years, without further automatic extension, commencing with the date
of such notice.
3. Compensation and Benefits.
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a. The Company shall pay the Executive a minimum salary of $400,000 per
annum in accordance with the salary payment practices of the Company. The Board
(or the Compensation Committee) shall review the Executive's salary at least
annually.
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b. The Executive shall be eligible to participate in any management
incentive programs established by the Company and to receive incentive
compensation based upon achievement of targeted levels of performance and such
other criteria as the CEO, Board or Compensation Committee may establish from
time to time. In addition, the CEO, Board or the Compensation Committee shall
annually consider the Executive's performance and determine if any additional
bonus is appropriate.
c. The Executive may participate in the Plan and shall be eligible for
the grant of stock options, restricted stock and other awards thereunder. Within
thirty (30) days of the Effective Date, the Company shall grant the Executive
options to purchase 150,000 shares of the Company's common stock under the Plan.
d. The Executive shall participate in and the Company shall pay all
retirement, welfare, deferred compensation, life and health insurance (including
health insurance for Executive's spouse and his dependents), and other benefit
plans or programs of the Company now or hereafter applicable to the Executive or
applicable generally to Executives of the Company or to a class of Executives
that includes senior executives of the Company; provided, however, that during
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any period during the Term that the Executive is subject to a Disability, and
during the 180-day period of physical or mental infirmity leading up to the
Executive's Disability, the amount of the Executive's compensation provided
under this Section 3 shall be reduced by the sum of the amounts, if any, paid to
the Executive for the same period under any disability benefit or pension plan
of the Company or any of its subsidiaries.
e. At the discretion of the CEO, the Company may provide to the
Executive an automobile owned or leased by the Company of a make and model
appropriate to the Executive's status (in the reasonable opinion of the CEO) or,
in lieu thereof, may provide the Executive with an annual allowance to partially
cover the cost of the business use of an automobile owned or leased by the
Executive.
f. The Company shall, upon approval by the CEO, reimburse the
Executive's reasonable expenses for relocating, including temporary living
expenses, to the Atlanta metropolitan area, where the Company's principal
executive office is located, for a period of one (1) year in an amount not to
exceed $22,500 per three (3) month period.
g. The Company shall reimburse the Executive for travel, seminar and
other expenses related to the Executive's duties that are incurred and accounted
for in accordance with the practices of the Company.
4. Termination.
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a. The Executive's employment under this Agreement may be terminated
prior to the end of the Term only as follows:
(i) upon the death of the Executive;
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(ii) by the Company due to the Disability of the Executive upon
delivery of a Notice of Termination to the Executive;
(iii) by the Company for Cause upon delivery of a Notice of
Termination to the Executive;
(iv) prior to a Change in Control, by the Company without Cause upon
no less than ninety (90) days written notice to the Executive, provided
the Company satisfies the provisions of Section 4(d); and
(v) by the Executive for any reason upon delivery of a Notice of
Termination to the Company within a 90-day period beginning on the 30th
day after any occurrence of a Change in Control or within a 90-day
period beginning on the one year anniversary of the occurrence of any
Change in Control.
b. If the Executive's employment with the Company shall be terminated
during the Term (i) by reason of the Executive's death, or (ii) by the Company
for Disability or Cause, the Company shall pay to the Executive (or in the case
of his death, the Executive's estate) within 15 days after the Termination Date,
a lump sum cash payment equal to the Accrued Compensation and, if such
termination is other than by the Company for Cause, the Pro Rata Bonus.
c. If the Executive's employment with the Company shall be terminated
after a Change in Control either (i) by the Company without Cause or (ii) by the
Executive for any reason, in addition to other rights and remedies available in
law or equity, the Executive shall be entitled to the following:
(i) the Company shall pay the Executive in cash within 15 days of
the Termination Date an amount equal to all Accrued Compensation and
the Pro Rata Bonus;
(ii) the Company shall pay to the Executive in cash at the end of
each of the twenty-four (24) consecutive thirty (30) day periods
following the Termination Date an amount equal to one-twelfth of the
sum of the Base Amount and the Bonus Amount.
(iii) for the two (2) year period following the Termination Date
(the "Continuation Period"), the Company shall at its expense continue
on behalf of the Executive and his dependents and beneficiaries the
life insurance, disability, medical, dental and hospitalization
benefits provided (x) to the Executive at any time during the 90-day
period prior to the Change in Control or at any time thereafter or (y)
to other similarly situated executives who continue in the employ of
the Company during the Continuation Period, if permitted, in either
case, by the applicable benefit plan. The coverage and benefits
(including deductibles and costs) provided in this Section 4(c)(iii)
during the Continuation Period shall be no less favorable to the
Executive and his dependents and beneficiaries than the most
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favorable of such coverages and benefits during any of the periods
referred to in clauses (x) and (y) above. The Company's obligation
hereunder with respect to the foregoing benefits shall be limited to
the extent that the Executive obtains any such benefits pursuant to a
subsequent employer's benefit plans, in which case the Company may
reduce the coverage of any benefits it is required to provide the
Executive hereunder as long as the aggregate coverages and benefits of
the combined benefit plans is no less favorable to the Executive than
the coverages and benefits required to be provided hereunder. This
subsection (iii) shall not be interpreted so as to limit any benefits
to which the Executive or his dependents or beneficiaries may be
entitled under any of the Company's Executive benefit plans, programs
or practices following the Executive's termination of employment,
including without limitation, retiree medical and life insurance
benefits; and
(iv) the restrictions on any outstanding incentive awards (including
stock options) granted to the Executive under the Plan or under any
other incentive plan or arrangement shall lapse and such incentive
award shall become 100% vested, and all stock options and stock
appreciation rights granted to the Executive shall become immediately
exercisable, shall become 100% vested and shall remain in effect until
the expiration of their respective terms notwithstanding that the
Executive has left the Company's employment.
d. If, prior to a Change in Control, the Company terminates the
Executive without Cause, the Company shall pay the Executive in cash:
(i) within fifteen (15) days of the Termination Date, an amount
equal to all Accrued Compensation and the Pro Rata Bonus;
(ii) at the end of each of the twenty four (24) consecutive thirty
(30) day periods following the Termination Date, an amount equal to
(1/12) of the sum of the Base Amount and the Bonus Amount; and
(iii) for the twenty four (24) consecutive thirty (30) day periods
following the Termination Date, the Company shall at its expense
continue on behalf of the Executive and his dependents and
beneficiaries the life insurance, disability, medical, dental and
hospitalization benefits provided (x) to the Executive at any time or
(y) to other similarly situated executives who continue in the employ
of the Company, if permitted, in either case, by the applicable benefit
plan. The coverage and benefits (including deductibles and costs)
provided in this Section 4(d)(iii) shall be no less favorable to the
Executive and his dependents and beneficiaries than the most favorable
of such coverages and benefits during any of the periods referred to in
clauses (x) and (y) above. The Company's obligation hereunder with
respect to the foregoing benefits shall be limited to the extent that
the Executive obtains any such benefits pursuant to a subsequent
employer's benefit plans, in which case the Company may reduce the
coverage of any benefits it is required to provide the Executive
hereunder as long as the aggregate coverages and benefits of the
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combined benefit plans is no less favorable to the Executive than
the coverages and benefits required to be provided hereunder. This
subsection (iii) shall not be interpreted so as to limit any benefits
to which the Executive or his dependents or beneficiaries may be
entitled under any of the Company's Executive benefit plans, programs
or practices following the Executive's termination of employment,
including without limitation, retiree medical and life insurance
benefits.
e. The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
and no such payment shall be offset or reduced by the amount of any compensation
or benefits provided to the Executive in any subsequent employment except as
provided in Section 4(c)(iii).
f. The severance pay and benefits provided for in this Section 4 shall
be in lieu of any other severance or termination pay to which the Executive may
be entitled under any Company severance or termination plan, program, practice
or arrangement. The Executive's entitlement to any other compensation or
benefits shall be determined in accordance with the Company's Executive benefit
plans and other applicable programs, policies and practices then in effect.
5. Protection of Trade Secrets and Confidential Information.
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a. Through exercise of his rights and performance of his obligations
under this Agreement, Executive will be exposed to Trade Secrets and
Confidential Business Information. Executive agrees to cooperate with any and
all confidentiality requirements of the Company and Executive shall immediately
notify the Company of any unauthorized disclosure or use of any Trade Secrets of
which Executive becomes aware.
b. Except as required to perform his obligations under this Agreement
or except with Company's prior written permission, Executive shall not use,
redistribute, market, publish, disclose or divulge to any other person or entity
any Trade Secrets of the Company. The Executive's obligations under this
provision shall remain in force (during or after the Term) for so long as such
information or data shall continue to constitute a "trade secret" under
applicable law.
c. The Executive agrees to maintain in strict confidence and, except as
necessary to perform his duties for the Company, not to use or disclose any
Confidential Business Information at any time, either during the term of his
employment or for a period of two (2) years after the Executive's last date of
employment.
d. Upon termination of employment, the Executive shall leave with the
Company all business records relating to the Company and its affiliates
including, without limitation, all contracts, calendars, and other materials or
business records concerning its business or customers, including all physical,
electronic, and computer copies thereof, whether or not the Executive prepared
such materials or records himself. Upon such termination, the Executive shall
retain no copies of any such materials.
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e. Nothing in this Section 5 shall prevent the Executive from
disclosing Trade Secrets or Confidential Business Information pursuant to a
court order or court-issued subpoena, so long as the Executive first notifies
the Company of said order or subpoena in sufficient time to allow the Company to
seek an appropriate protective order. The Executive agrees that if he receives
any formal or informal discovery request, court order, or subpoena requesting
that he disclose Trade Secrets or Confidential Business Information, he will
immediately notify the Company and provide the Company with a copy of said
request, court order, or subpoena.
6. Non-Solicitation and Related Matters.
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a. If the Executive is terminated for Cause or if the Executive resigns
without Adequate Justification, then for a period of two (2) years following the
date of termination, the Executive shall not (except on behalf of or with the
prior written consent of the Company) either directly or indirectly, on the
Executive's own behalf or in the service or on behalf of others, (i) solicit,
divert, or appropriate to or for a Competing Business, or (ii) attempt to
solicit, divert, or appropriate to or for a Competing Business, any person or
entity that was a customer or prospective customer of the Company on the date of
termination and with whom the Executive had direct material contact within six
months of the Executive's last date of employment.
b. If the Executive is terminated for Cause or if the Executive resigns
without Adequate Justification, then for a period of two (2) years following the
date of termination, the Executive will not, either directly or indirectly, on
the Executive's own behalf or in the service or on behalf of others, (i)
solicit, divert, or hire away, or (ii) attempt to solicit, divert, or hire away
any employee of or consultant to the Company or any of its affiliates engaged or
experienced in the Business, regardless of whether the employee or consultant is
full-time or temporary, the employment or engagement is pursuant to written
agreement, or the employment is for a determined period or is at will.
c. The Executive acknowledges and agrees that great loss and
irreparable damage would be suffered by the Company if the Executive should
breach or violate any of the terms or provisions of the covenants and agreements
set forth in this Section 6. The Executive further acknowledges and agrees that
each of these covenants and agreements is reasonably necessary to protect and
preserve the interests of the Company. The parties agree that money damages for
any breach of clauses (a) and (b) of this Section 6 will be insufficient to
compensate for any breaches thereof, and that the Executive or any of the
Executive's affiliates, as the case may be, will, to the extent permitted by
law, waive in any proceeding initiated to enforce such provisions any claim or
defense that an adequate remedy at law exists. The existence of any claim,
demand, action, or cause of action against the Company, whether predicated upon
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of any of the covenants or agreements in this Agreement;
provided, however, that nothing in this Agreement shall be deemed to deny the
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Executive the right to defend against this enforcement on the basis that the
Company has no right to its enforcement under the terms of this Agreement.
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d. The Executive acknowledges and agrees that: (i) the covenants and
agreements contained in clauses (a) through (e) of this Section 6 are the
essence of this Agreement; (ii) the Executive has received good, adequate and
valuable consideration for each of these covenants; and (iii) each of these
covenants is reasonable and necessary to protect and preserve the interests and
properties of the Company. The Executive also acknowledges and agrees that: (i)
irreparable loss and damage will be suffered by the Company should the Executive
breach any of these covenants and agreements; (ii) each of these covenants and
agreements in clauses (a) and (b) of this Section 6 is separate, distinct and
severable not only from the other covenants and agreements but also from the
remaining provisions of this Agreement; and (iii) the unenforceability of any
covenants or agreements shall not affect the validity or enforceability of any
of the other covenants or agreements or any other provision or provisions of
this Agreement. The Executive acknowledges and agrees that if any of the
provisions of clauses (a) and (b) of this Section 6 shall ever be deemed to
exceed the time, activity, or geographic limitations permitted by applicable
law, then such provisions shall be and hereby are reformed to the maximum time,
activity, or geographical limitations permitted by applicable law.
e. The Executive and the Company hereby acknowledge that it may be
appropriate from time to time to modify the terms of this Section 6 and the
definition of the term "Business" to reflect changes in the Company's business
and affairs so that the scope of the limitations placed on the Executive's
activities by this Section 6 accomplishes the parties' intent in relation to the
then current facts and circumstances. Any such amendment shall be effective only
when completed in writing and signed by the Executive and the Company.
7. Non-Competition and Related Matters.
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a. If the Executive is terminated for Cause or if the Executive resigns
without Adequate Justification, then for a period of two (2) years following the
date of termination, the Executive shall not (except on behalf of or with the
prior written consent of the Company) either directly or indirectly, on the
Executive's own behalf or in the service or on behalf of others, serve as an
officer or senior manager in any Competing Business within a seventy-five (75)
mile radius of the Company's principal executive office in Norcross, Georgia.
b. The Executive acknowledges and agrees that great loss and
irreparable damage would be suffered by the Company if the Executive should
breach or violate any of the terms or provisions of the covenants and agreements
set forth in this Section 7. The Executive further acknowledges and agrees that
each of these covenants and agreements is reasonably necessary to protect and
preserve the interests of the Company. The parties agree that money damages for
any breach of clause (a) of this Section 7 will be insufficient to compensate
for any breaches thereof, and that the Executive or any of the Executive's
affiliates, as the case may be, will, to the extent permitted by law, waive in
any proceeding initiated to enforce such provisions any claim or defense that an
adequate remedy at law exists. The existence of any claim, demand, action, or
cause of action against the Company, whether predicated upon this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
any of the covenants or agreements in this Agreement; provided, however, that
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nothing in this Agreement shall be deemed to deny the
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Executive the right to defend against this enforcement on the basis that the
Company has no right to its enforcement under the terms of this Agreement.
c. The Executive acknowledges and agrees that: (i) the covenants and
agreements contained in clause (a) of this Section 7 are the essence of this
Agreement; (ii) the Executive has received good, adequate and valuable
consideration for each of these covenants; and (iii) each of these covenants is
reasonable and necessary to protect and preserve the interests and properties of
the Company. The Executive also acknowledges and agrees that: (i) irreparable
loss and damage will be suffered by the Company should the Executive breach any
of these covenants and agreements; (ii) each of these covenants and agreements
in clause (a) of this Section 7 is separate, distinct and severable not only
from the other covenants and agreements but also from the remaining provisions
of this Agreement; and (iii) the unenforceability of any covenants or agreements
shall not affect the validity or enforceability of any of the other covenants or
agreements or any other provision or provisions of this Agreement. The Executive
acknowledges and agrees that if any of the provisions of clause (a) of this
Section 7 shall ever be deemed to exceed the time, activity, or geographic
limitations permitted by applicable law, then such provisions shall be and
hereby are reformed to the maximum time, activity, or geographical limitations
permitted by applicable law.
d. The Executive and the Company hereby acknowledge that it may be
appropriate from time to time to modify the terms of this Section 7 and the
definition of the term "Business" to reflect changes in the Company's business
and affairs so that the scope of the limitations placed on the Executive's
activities by this Section 7 accomplishes the parties' intent in relation to the
then current facts and circumstances. Any such amendment shall be effective only
when completed in writing and signed by the Executive and the Company.
8. Successors; Binding Agreement.
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a. This Agreement shall be binding upon and shall inure to the benefit
of the Company, its Successors and Assigns and the Company shall require any
Successors and Assigns to expressly assume 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 or assignment had taken place.
b. Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal personal representative.
9. Fees and Expenses The Company shall pay all reasonable legal fees
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and related expenses (including but not limited to the costs of experts,
accountants and counsel) incurred by the Executive as they become due as a
result of (a) the termination of the Executive's employment (including all such
fees and expenses, if any, incurred in contesting or disputing any such
termination of employment) and (b) the Executive seeking to obtain or enforce
any right or
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benefit provided by this Agreement; provided, however, that the circumstances
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set forth in clauses (a) and (b) above occurred on or after a Change in Control.
10. Notice. For the purposes of this Agreement, notices and all other
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communications provided for in this Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each party
to the other; provided, however, that all notices to the Company shall be
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directed to the attention of the Board with a copy to the Secretary of the
Company. All notices and communications shall be deemed to have been received on
the date of delivery thereof.
11. Settlement of Claims. The Company's obligation to make the payments
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provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or others. The Company may, however,
withhold from any benefits payable under this Agreement all federal, state,
city, or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
12. Modification and Waiver. No provisions of this Agreement may be
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modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and the Company. No waiver by
any party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
13. Governing Law. This Agreement shall be governed by and construed
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and enforced in accordance with the laws of the State of Georgia without giving
effect to the conflict of laws principles thereof. Any action brought by any
party to this Agreement shall be brought and maintained in a court of competent
jurisdiction in State of Georgia.
14. Severability. The provisions of this Agreement shall be deemed
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severable and the invalidity or unenforceability of any provision
shall not affect the validity or enforceability of the other provisions hereof.
15. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
16. Headings. The headings of Sections herein are included solely for
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convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
17. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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18. Definitions. For purposes of this Agreement, the following terms
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shall have the following meanings:
"Accrued Compensation" shall mean an amount which shall include all
amounts earned or accrued through the Termination Date but not paid as of the
Termination Date including (i) base salary, and (ii) reimbursement for
reasonable and necessary expenses incurred by the Executive on behalf of the
Company during the period ending on the Termination Date.
"Act" shall mean the Securities Act of 1933, as amended.
"Adequate Justification" shall mean the occurrence after a Change in
Control of any of the following events or conditions: (i) a material failure of
the Company to comply with the terms of this Agreement; (ii) any relocation of
the Executive outside the Atlanta, Georgia metropolitan area that is not
approved by the Executive; or (iii) other than as provided for herein, the
removal of the Executive from his position hereunder or any other substantial
diminution in the Executive's authority or the Executive's responsibilities that
is not approved by members of the Incumbent Board.
"Agreement" shall have the meaning set forth in the recitals.
"Base Amount" shall mean the greater of the Executive's annual base
salary (i) at the rate in effect on the Termination Date or (ii) at the highest
rate in effect at any time during the 90-day period prior to the Change in
Control, and shall include all amounts of his base salary that are deferred
under the qualified and non-qualified employee benefit plans of the Company or
any other agreement or arrangement.
"Board" shall have the meaning set forth in the recitals.
"Bonus Amount" shall mean the greater of (i) the most recent annual
bonus paid or payable to the Executive, or, if greater, the annual bonus paid or
payable for the full fiscal year ended prior to the fiscal year during which a
Change in Control occurred or (ii) the average of the annual bonuses paid or
payable during the three full fiscal years ended prior to the Termination Date
or, if greater, the three full fiscal years ended prior to the Change in Control
(or, in each case, such lesser period for which annual bonuses were paid or
payable to the Executive).
"Business" shall mean the design, development, marketing and
implementation of banking technology products and services for community
financial institutions.
"Bylaws" shall mean the Amended and Restated Bylaws of the Company, as
amended, supplemented or otherwise modified from time to time.
"Cause" shall mean the result of:
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(i) any act that (X) constitutes, on the part of the Executive,
fraud, dishonesty, or gross malfeasance of duty, and (Y) is
demonstrably likely to lead to material injury to the Company or
resulted or was intended to result in direct or indirect gain to or
personal enrichment of the Executive; provided, however, that such
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conduct shall not constitute Cause:
(A) unless (1) there shall have been delivered to the Executive
a written notice setting forth with specificity the reasons that the
Board believes the Executive's conduct constitutes the criteria set
forth in clause (i), (2) the Executive shall have been provided the
opportunity, if such behavior is susceptible to cure, to cure the
specific inappropriate behavior within 30 days following written
notice, (3) after such 30-day period, the Board of Directors
determines that the behavior has not been cured, and (4) the
termination is evidenced by a resolution adopted in good faith by a
majority of the members of the Board (other than the Executive if
the Executive is on the Board at the time); or
(B) if such conduct (1) was believed by the Executive in good
faith to have been in or not opposed to the interests of the
Company, and (2) was not intended to and did not result in the
direct or indirect gain to or personal enrichment of the Executive;
or
(ii) the conviction (from which no appeal may be or is timely taken)
of the Executive of a felony.
"Change in Control" shall mean the occurrence during the Term of any
the following events:
(i) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any
"Person" (as the term person is used for purposes of Section 13(d) or
14(d) of the Securities Exchange Act of 1934 (the "1934 Act"))
immediately after which such Person has "Beneficial Ownership" (within
the meaning of Rule 13d-3 promulgated under the 0000 Xxx) of 34% or
more of the combined voting power of the Company's then outstanding
Voting Securities; provided, however, that in determining whether a
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Change in Control has occurred, Voting Securities which are acquired in
a "Non-Control Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control. A
"Non-Control Acquisition" shall mean an acquisition by (1) an employee
benefit plan (or a trust forming a part thereof) maintained by (x) the
Company or (y) any corporation or other Person of which a majority of
its voting power or its equity securities or equity interest is owned
directly or indirectly by the Company (a "Subsidiary"), (2) the Company
or any Subsidiary, or (3) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined);
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(ii) The individuals who, as of the date of this Agreement, are
members of the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that if
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the election, or nomination for election by the Company's shareholders,
of any new director was approved by a vote of at least a majority of
the Incumbent Board, such new director shall, for purposes of this
Agreement, be considered as a member of the Incumbent Board; provided,
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further, however, that no individual shall be considered a member of
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the Incumbent Board if such individual initially assumed office as a
result of either an actual or threatened "Election Contest" (as
described in Rule 14a-11 promulgated under the 0000 Xxx) or other
actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a "Proxy Contest") including
by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or
(iii) Approval by shareholders of the Company of:
(A) A merger, consolidation or reorganization involving the
Company, unless
(1) the shareholders of the Company, immediately before such
merger, consolidation or reorganization, own, directly or
indirectly, immediately following such merger, consolidation or
reorganization, at least a majority of the combined voting power
of the outstanding voting securities of the corporation
resulting from such merger or consolidation or reorganization
(the "Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or reorganization,
and
(2) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing
for such merger, consolidation or reorganization constitute at
least a majority of the members of the board of directors of the
Surviving Corporation.
(A) transaction described in clauses (1) and (2) shall herein be
referred to as a "Non-Control Transaction").
(B) A complete liquidation or dissolution of the Company; or
(C) An agreement for the sale or other disposition of all or
substantially all of the assets of the Company to any Person (other
than a transfer to a Subsidiary).
12
(iv) Notwithstanding anything contained in this Agreement to the
contrary, if the Executive's employment is terminated prior to a Change
in Control and the Executive reasonably demonstrates that such
termination (A) was at the request of a third party who has indicated
an intention or taken steps reasonably calculated to effect a Change in
Control and who effectuates a Change in Control (a "Third Party") or
(B) otherwise occurred in connection with, or in anticipation of, a
Change in Control which actually occurs, then for all purposes of this
Agreement, the date of a Change in Control with respect to the
Executive shall mean the date immediately prior to the date of such
termination of the Executive's employment.
"CEO" shall initially mean Xxxx X. Xxxxxxx or the person currently
serving as the chief executive officer of the Company.
"Company "shall have the meaning set forth in the recitals.
"Compensation Committee" shall mean the compensation committee of the
Board.
"Competing Business" shall mean any business that, in whole or in part,
is the same or substantially the same as the Business.
"Confidential Business Information" shall mean any non-public
information of a competitively sensitive or personal nature, other than Trade
Secrets, acquired by the Executive, directly or indirectly, in connection with
the Executive's employment (including his employment with the Company prior to
the date of this Agreement), including (without limitation) oral and written
information concerning the Company or its affiliates relating to financial
position and results of operations (revenues, margins, assets, net income,
etc.), annual and long-range business plans, marketing plans and methods,
account invoices, oral or written customer information, and personnel
information. Confidential Business Information also includes information
recorded in manuals, memoranda, projections, minutes, plans, computer programs,
and records, whether or not legended or otherwise identified by the Company and
its affiliates as Confidential Business Information, as well as information
which is the subject of meetings and discussions and not so recorded; provided,
however, that Confidential Business Information shall not include information
that is generally available to the public, other than as a result of disclosure,
directly or indirectly, by the Executive, or was available to the Executive on a
non-confidential basis prior to its disclosure to the Executive.
"Continuation Period" shall have the meaning ascribed to it in Section
4(c)(iii).
"Disability" shall mean the inability of the Executive to perform
substantially all of his current duties as required hereunder for a continuous
period of 90 days because of mental or physical condition, illness or injury.
"Effective Date" shall mean the date set forth in the recitals.
"Executive" shall have the meaning set forth in the recitals.
13
"Notice of Termination" shall mean a written notice of termination from
the Company or the Executive which specifies an effective date of termination,
indicates the specific termination provision in this Agreement relied upon, and
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated.
"Plan" shall mean The InterCept Group, Inc. Amended and Restated 1996
Stock Option Plan, and any additional, successor or replacement stock option
plan adopted by the Company.
"Pro Rata Bonus" shall mean an amount equal to the Bonus Amount
multiplied by a fraction the numerator of which is the number of days in the
fiscal year through the Termination Date and the denominator of which is 365.
"Successors and Assigns" shall mean a corporation or other entity
acquiring all or substantially all the assets and business of the Company
(including this Agreement), whether by operation of law or otherwise.
"Term" shall have the meaning set forth in Section 2 of this Agreement.
"Termination Date" shall mean, in the case of the Executive's death,
his date of death, and in all other cases, the date specified in the Notice of
Termination.
"Trade Secrets" shall mean information or data of or about the Company
or any affiliated entity, including, but not limited to, technical or
nontechnical data, formulas, patterns, compilations, programs, devices, methods,
techniques, drawings, processes, financial data, financial plans, products
plans, or lists of actual or potential customers, clients, distributors, or
licensees, that: (i) derive 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 their disclosure or use; and
(ii) are the subject of efforts that are reasonable under the circumstances to
maintain their secrecy. To the extent that the foregoing definition is
inconsistent with a definition of "trade secret" mandated under applicable law,
the latter definition shall govern for purposes of interpreting Executive's
obligations under this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers thereunto duly
authorized, and the Executive has signed and sealed this Agreement, effective as
of the date first above written.
[End of page]
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THE INTERCEPT GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------
Title:Chief Executive Officer
---------------------------------
(CORPORATE SEAL)
EXECUTIVE
/s/ G. Xxxx Xxxxx
---------------------------------------
G. Xxxx Xxxxx
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