RETIREMENT AGREEMENT AND GENERAL RELEASE
Exhibit
10.1
RETIREMENT
AGREEMENT AND
GENERAL RELEASE
THIS
RETIREMENT AGREEMENT AND GENERAL
RELEASE (“Agreement”) is made and entered into by and between Xxxxxxx X. Xxxxxx
(“Executive”) and Omni National Bank (“Employer” or the “Bank”) and Omni
Financial Services, Inc. (the “Company”).
STATEMENT
OF
FACTS
Executive
desires to accept the
following agreements, including, without limitation, certain additional
consideration from Employer and the Company in return for Executive’s general
release, non-disclosure, and restrictive covenant agreements set forth
below. Executive desires to settle fully and finally all differences
and disputes he may have with Employer, the Company, and Omni Community
Development Corporation, including, but not limited to, any differences and
disputes that might arise, or have arisen, out of Executive’s employment with
and separation from Employer and Executive’s resignation as an employee,
officer, and director of Employer, as an employee and officer of the Company,
and as a director of Omni Development Corporation.
STATEMENT
OF
TERMS
In
consideration of the mutual promises
herein, it is agreed as follows:
1. Non-Admission
of Liability. Neither this
Agreement nor Employer’s or the Company’s offer to enter into this Agreement
shall in any way be construed as an admission by Employer or the Company
that it
has acted wrongfully with respect to Executive or any other person, or that
Executive has any rights whatsoever against Employer or the
Company. Employer and the Company specifically disclaim any liability
to or wrongful acts against Executive or any other person, on the part of
itself, its shareholders, officers, directors, employees, agents, or
representatives.
2. Resignation
of Employment and Directorship. Executive
acknowledges, understands, and agrees that Executive voluntarily resigned
from
his employment with, and as an officer and director of, Employer, to the
extent
applicable, from his employment with and as an officer and director of the
Company, and as an officer and director of Omni Community Development
Corporation, all resignations effective December 31, 2007 (the “Separation
Date”). The parties agree that except as set forth herein, this
Agreement terminates all aspects of the relationship between Executive and
Employer, Executive and the Company, and Executive and Omni Community
Development Corporation. Executive therefore acknowledges,
understands, and agrees that Executive does not and will not seek reinstatement,
future employment, or return to active employment status with Employer, the
Company, or Omni Community Development Corporation. Executive further
acknowledges, understands, and agrees that neither Employer nor the Company
nor
Omni Community Development Corporation is under any obligation to consider
Executive for reinstatement, employment, re-employment, consulting, or similar
status at any time.
3. Consideration. In
full
consideration and as material inducement for Executive’s signing of this
Separation Agreement and General Release, the receipt, adequacy, and sufficiency
of which are hereby acknowledged:
|
|
(a)
|
Executive
will remain on a personal leave of absence from his employment
with
Employer through December 31, 2007, but remain on Employer’s payroll until
December 31, 2007 and receive all compensation and other employment
benefits to which he would be entitled if he were not on a leave
of
absence during this time. During this time, Executive is not
permitted or authorized to (i) be on Bank premises unless he is
accompanied by a Bank Officer approved by the Bank’s Chief Executive
Officer; (ii) access Bank or Company files, confidential information,
or
computer, email, or telephone systems, either personally or through
any
agent or representative; (iii) incur any expenses, obligations,
or
liabilities or make any commitments on behalf of the Bank or the
Company
(including the extension of credit, granting of loans, waiving
of
payments, or likewise); or (iv) negotiate or compromise or reduce
any
debts owed to the Bank or the Company by any third party.
|
|
|
(b)
|
Within
ten (10) days after the Separation Date (as defined herein), Employer
will
pay Executive, in a one-time, lump sum payment, the total gross
amount of
$339,300, less required withholdings where applicable, an amount
which
represents the sum of (i) Executive’s current base compensation for 12
months; (ii) an estimation of Executive’s annual dues at the Standard Club
for three (3) years; and (iii) an allowance for office furniture,
legal
publications, and artwork. Executive understands and agrees the
amount withheld by the Employer from the portion of this payment
that is
subject to withholding and will be based upon the information contained
in
the most recent Internal Revenue Service Form W-4 (and similar
state form)
provided to Employer by Executive. Executive understands and
agrees that the portion of this payment that is not subject to
withholding will be reported as income to Executive on an Internal
Revenue
Service Form-1099 (and similar state form) and that Executive will
be
solely responsible for any and all taxes that may attend this
income. Executive agrees to complete by the Effective Date of
this Agreement all forms necessary for the Bank to properly and
lawfully
report this income.
|
|
|
(c)
|
After
the Separation Date, Employer will continue Executive’s and Executive’s
dependants’ current health coverage with Employer, at no cost to
Executive, for the lesser of 18 months or the Executive’s applicable COBRA
period. Executive will only be eligible for the health coverage
described in this Section to the extent Executive elects COBRA
coverage. Notice of Executive’s rights and obligations pursuant
to COBRA will be provided to Executive under separate
cover. Executive understands and agrees that any payments made
by the Bank on behalf of Executive and/or his dependents for continuing
health coverage will be reported as income to Executive on an Internal
Revenue Service Form-1099 and that Executive will be solely responsible
for any and all taxes that may attend this income. Executive
agrees to complete by the Effective Date of this Agreement all
forms
necessary for the Bank to properly and lawfully report this income.
|
|
|
(d)
|
On
the Effective Date of this Agreement (or as soon as practicable
after the
Effective Date), Employer will transfer to Executive the full and
unencumbered title to the vehicle (2006 BMW 750 LI4S, VIN:
XXXXX00000XX00000) (“Vehicle”) currently used by
Executive. Executive understands and agrees that the current
value of Vehicle ($51,265.00) will be reported as income to Executive
on
an Internal Revenue Service Form-1099 (and similar state form)
and that
Executive will be solely responsible for any and all taxes that
may attend
this income. Executive agrees to complete by the Effective Date
of this Agreement all forms necessary for the Bank to properly
and
lawfully report this income and complete the transfer of title.
|
|
|
(e)
|
Employer
and the Company will continue to recognize, where, when, and for
as long
as, in the sole discretion of the Company’s Board of Directors, such
recognition is appropriate, Executive’s past contributions to the
Company. Such recognition may include, but not be limited to,
designation of Executive as a Director Emeritus of the Company
and
recognition of Executive’s Co-Founder and Director Emeritus status in the
Company’s Annual Report and in the Bank’s offices. Employer’s
and the Company’s obligation pursuant to this Agreement to recognize
Executive’s past contributions to the Company will cease immediately upon:
(i) the filing of a civil or administrative complaint against the
Bank,
the Company, or Executive based in whole or in part on Executive’s actions
or omissions while employed with the Bank; (ii) the announcement
by any
governmental agency of an investigation, audit, or inquiry of the
Bank,
the Company, or Executive based in whole or in part on Executive’s actions
or omissions while employed with the Bank; (iii) the criminal indictment
of Executive based in whole or in part on Executive’s actions or omissions
while employed with the Bank; and/or (iv) Executive’s breach of or failure
to comply with any part of this Agreement.
|
|
|
(f)
|
The
Company agrees that Executive has until December 31, 2009 to exercise
his
rights pursuant to the January 1, 2005 Stock Option Agreement between
the
Company and the Executive (“Stock Option Agreement”). This
Section 3(f) constitutes an Amendment to the Stock Option Agreement,
duly
approved by the Company’s Board of Directors, and to the extent applicable
and/or necessary, by the Bank’s Board of Directors.
|
4. Complete
Release. As a material
inducement to Employer and the Company to enter into this Agreement, Executive
hereby irrevocably and unconditionally releases, acquits, and forever discharges
Employer and the Company and each of Employer’s and Company’s stockholders,
officers, directors, employees, successors, assigns, agents, representatives,
attorneys, and all persons acting by, through, under, or in concert with
any of
them (collectively “Released Parties”), from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements (excluding this Agreement
itself), controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts, and expenses of any nature whatsoever, known
or
unknown, suspected or unsuspected, including, but not limited to, rights
arising
out of alleged violations or breaches of any contracts, express or implied,
or
any tort, or any legal restrictions on Employer’s right to terminate employees,
or any federal, state, or other governmental statute, regulation, or ordinance,
including, without limitation: (1) Title VII of the Civil Rights Act of
1964, as amended by the Civil Rights Act of 1991; (2) the Americans with
Disabilities Act; (3) 42 U.S.C. § 1981; (4) the Age Discrimination in
Employment Act, as amended by the Older Workers Benefit Protection Act;
(5) the Equal Pay Act; (6) the Employee Retirement Income Security Act
(“ERISA”); (7) Section 503 of the Rehabilitation Act of 1973; (8) the False
Claims Act (including the qui tam provision thereof); (9) the Occupational
Safety and Health Act; (10) the Consolidated Omnibus Budget Reconciliation
Act
of 1986 (“COBRA”); (11) intentional or negligent infliction of emotional
distress or “outrage”; (12) interference with employment and/or contractual
relations; (13) wrongful discharge; (14) invasion of privacy;
(15) assault and battery; (16) defamation; (17) whistleblowing; and
(18) violation of any other legal or contractual duty arising under the laws
of
the state of Georgia or the United States of America, (individually the “Claim”
and collectively the “Claims”), which Executive now has, owns, or holds, or
claims to have, own or hold, or which Executive at any time heretofore had,
owned, or held, or claimed to have, own, or hold, against each or any of
the
Released Parties at any time up to and including the date of execution of
this
Agreement.
5. Cessation
of Authority. Executive
acknowledges, understands, and agrees that after October 29, 2007, Executive
is
not and has not been authorized to incur any expenses, obligations or
liabilities, or to make any commitments on behalf of Employer or the
Company. Executive agrees to submit to the Chief Financial Officer of
Employer (“CFO”) on or before the Effective Date, any and all expenses that were
incurred by Executive on behalf of Employer or the Company (which have not
previously been reimbursed) and any and all contracts or other obligations
entered into by Executive on behalf of Employer or the Company (which have
not
previously been disclosed), including but not limited to any loans agreed
to or
memoranda of understanding entered into on behalf of the Employer or the
Company. Employer agrees to reimburse Executive for reimbursable
expenses incurred by Executive through October 29, 2007 which have not yet
been
reimbursed and which are promptly submitted to Employer, pursuant to Employer’s
standard policies and procedures relating to reimbursement of
expenses.
Notwithstanding
anything in this Section 5, however, Employer, provided that Executive submits
to the CFO appropriate documentation of the expenses on or before the Effective
Date, shall reimburse Executive for the following expenses (and only the
following expenses) properly incurred by him between October 29, 2007 and
the
Effective Date (a reimbursement amount not to exceed $2,915.36):
|
|
(a)
|
Expenses
incurred by Executive at the Standard Club in November 2007 and
December
2007 (not to exceed $1,338.00);
|
|
|
(b)
|
Expenses
incurred by Executive for his automobile and Xxxxxxx XXX in November
2007
and December 2007 (not to exceed $1268.36); and
|
|
|
(c)
|
Expenses
incurred by Executive for continuing education in December 2007
(not to
exceed $309.00).
|
6. Agreement
Not to Disclose Trade Secrets and Confidential
Information. Executive acknowledges, understands, and agrees
that in the course of employment with Employer, Executive has acquired
Confidential Information and Trade Secrets, as those terms are defined below,
concerning Employer’s and the Company’s operations, policies and practices,
future plans, and methods of doing business, which information Executive
understands and agrees would be extremely damaging to Employer or the Company
if
disclosed to a competitor or made available to any other person or
entity. Executive acknowledges, understands, and agrees that such
information has been divulged to Executive in confidence. Executive
agrees to protect and hold in strict confidence all Company Information,
as that
term is defined below, that Executive has received or created on behalf of
Employer or the Company and that Executive will not, directly or indirectly,
use, publish, disseminate, or otherwise disclose any Company Information
to any
third party without Employer’s and/or the Company’s prior written consent,
unless and until such time as the restrictions on Executive’s use or disclosure
of such Company Information expire as set forth herein below. If a
disclosure of Company Information is required by law, subpoena, or court
order,
Executive agrees to give Employer the maximum feasible prior written notice
of
the legal justifications and requirements for any proposed disclosure of
such
information so that Employer and/or the Company may object to such disclosure
if
appropriate.
Executive
further acknowledges, understands, and agrees that Executive has complied
with
Employer’s policies and his previous agreements with Employer regarding the
protection of Company Information, that Executive has held such Information
in
trust and strict confidence, and that Executive will continue to do so according
to the terms set forth in this Agreement.
The
restrictions on Executive’s use or disclosure of all Company Information, as set
forth above, shall survive for a period of two (2) years after the Separation
Date; provided however, that the restrictions on the use or disclosure of
Trade
Secrets shall survive beyond such two (2) year period for so long as such
information qualifies as a Trade Secret under applicable law.
In
view
of the nature of Executive’s employment and Company Information which Executive
has received or created during the course of Executive’s employment, Executive
likewise acknowledges, understands, and agrees that Employer and/or the Company
would be irreparably harmed by any material violation, or threatened material
violation of this Agreement by Executive and that, therefore, Employer and/or
the Company shall be entitled to an injunction prohibiting Executive from
any
violation or threatened violation of this Agreement, and shall further be
entitled to recover any damages proximately caused by such
violation(s). The undertakings set forth in this Section shall
survive the termination of other arrangements contained in this
Agreement.
“Company
Information” means Confidential Information and Trade Secrets of both Employer
and the Company. However, “Company Information” does not include any
information which: (i) at the time of disclosure to Executive, was in the
public domain or was already lawfully in Executive’s possession without a breach
of duty owed to Employer or the Company; (ii) after disclosure to
Executive, is published or otherwise becomes part of the public domain without
a
breach of duty owed to Employer and/or the Company and through no fault of
Executive; or (iii) was received after disclosure to Executive from a third
party who had a lawful right to and, without a breach of duty owed to Employer
and/or the Company, did disclose such information to Executive.
“Confidential
Information” means any and all information of Employer and the Company other
than Trade Secrets that has value and is not generally known to Employer’s or
the Company’s competitors. This includes any information about
Employer’s and/or the Company’s loan, accounting, or financial practices or
procedures; Employer’s and/or the Company’s operations; future plans; actual or
potential customers, vendors and suppliers; and methods of doing
business.
“Trade
Secret” means information related to the business or services of Employer and/or
the Company which: (i) derives independent actual or potential commercial
value from not being generally known or readily ascertainable through
independent development or reverse engineering by third parties who can obtain
economic value from its disclosure or use; and (ii) is the subject of
efforts by Employer and/or the Company and such third parties that are
reasonable under the circumstances to maintain its secrecy. Assuming
the foregoing criteria in the immediately preceding clauses (i) and (ii)
are met, Trade Secret includes business and technical information including,
without limitation, designs, formulas, patterns, compilations, programs,
devices, inventions, methods, techniques, drawings, processes, finances,
and
existing and future products and services of Employer and/or the
Company.
7. Return
of
Company Materials and Property. Executive
acknowledges, understands, and agrees that as a result of Executive’s
employment, Executive has had in Executive’s custody, possession, and/or control
documents, data, materials, files, and other items that are the property
of
Employer, the Company, or its customers, including loan applications and
portfolios and Company Information. Executive agrees that to the
extent Executive has not already done so, Executive will turn over to Employer’s
Chief Financial Officer on or before the Effective Date, all files (including
but not limited to loan files), memoranda, records, credit cards, manuals,
computer equipment, computer software, pagers, personal data assistants
(“PDAs”), cellular phones, facsimile machines, Company Information, and any
other equipment or documents, all other property of similar type that Executive
received from Employer or the Company and/or that Executive used in the course
of Executive’s employment and that is the property of Employer, the Company, or
its customers (including any electronic versions of such
items). Executive further agrees that after returning any electronic
or physical versions of such items, Executive will permanently delete and
destroy any remaining electronic versions or physical copies in Executive’s
possession, custody, or control. Executive further acknowledges,
understands, and agrees that he is to return any computer and/or electronic
equipment provided previously to him by Employer or the Company to the CFO
without deleting or destroying any information thereon.
Employer
agrees to (i) return to Executive, no later than the Separation Date, any
and
all of Executive’s personal property and effects left by Executive on Employer’s
premises (Six Xxxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 30328)
(“Premises”), or (ii) provide Executive access to Premises on or before the
Separation Date for Executive to retrieve his personal property and
effects.
8. Confidentiality
of Agreement. Executive acknowledges, understands, and agrees
that Executive has kept and will keep the terms, amount, value, and nature
of
consideration paid to Executive, and the existence of this Agreement completely
confidential, and that Executive will not hereafter disclose any information
concerning this Agreement to anyone other than Executive’s immediate family,
accountants, attorneys, and other professional representatives who will be
informed of and bound by this confidentiality clause.
9. Non-Disparagement
and Professionalism. Executive
acknowledges, understands, and agrees that Executive will not make or issue,
or
procure any person or entity to make or issue, any statement in any form
(including but not limited to, statements to the media, on web-sites, via
the
internet, or in web “chat rooms”) concerning: (i) Employer, the Company, or any
Released Party; (ii) Executive’s employment relationship with Employer
and/or the Company; (iii) the termination of Executive’s employment
relationship; or (iv) the termination of Executive as a director, to any
person
or entity if such statement is harmful to or disparaging of Employer, the
Company, or any Released Party.
10. Age
Discrimination In Employment Act. Executive
acknowledges, understands, and agrees that this Agreement and the termination
of
Executive’s employment and directorship and all actions taken in connection
therewith are in compliance with the Age Discrimination in Employment Act
(“ADEA”) and the Older Workers Benefit Protection Act (“OWBPA”) and that the
releases set forth in Section 4 hereof shall be applicable, without limitation,
to any claims brought under these Acts. Executive further
acknowledges, understands, and agrees that:
|
|
(d)
|
the
release given by Executive in this Agreement is given solely in
exchange
for the consideration set forth in Section 3 of this Agreement
and such
consideration is in addition to anything of value which Executive
was
entitled to receive prior to entering into this Agreement;
|
|
|
(e)
|
by
entering into this Agreement, Executive does not waive rights or
claims
that may arise after the date this Agreement is executed;
|
|
|
(f)
|
Executive
has been advised to consult an attorney prior to entering into
this
Agreement, and this provision of this Agreement satisfies the requirement
of the OWBPA that Executive be so advised in writing;
|
|
|
(g)
|
Executive
has been offered twenty-one (21) days from his receipt of this
Agreement
within which to consider this Agreement; and
|
|
|
(h)
|
for
a period of seven (7) days following Executive’s execution of this
Agreement, Executive may revoke this Agreement by delivering written
notice of such revocation to the Employer’s CFO and this Agreement shall
not become effective or enforceable until such seven (7) day period
has
expired (“Effective Date”).
|
11.
No
Other Claims. Executive
acknowledges, understands, and agrees that Executive has not filed, nor assigned
to others the right to file, nor are there pending, any complaints, charges,
or
lawsuits by or on behalf of Executive against Employer and/or the Company
with
any governmental agency or any court. Executive further acknowledges,
understands, and agrees that Executive will not purchase or acquire any Claim
from a third party or be assigned any Claim by a third party against Employer
and/or the Company on or after the Effective Date.
12.
Indemnification
for Breach of Agreement. As further material inducement to
Employer and the Company to enter into this Agreement, Executive hereby agrees
to indemnify and hold each and all of the Released Parties harmless from
and
against any and all loss, costs, damages or expenses, including without
limitation, attorneys’ fees incurred by Released Parties or by any of the
Released Parties’ agents, representatives, or attorneys arising out of any
breach of this Agreement by Executive or the fact that any acknowledgement,
understanding, agreement, or representation made herein by Executive was
false
when made.
13.
Acknowledgments.
|
|
(a)
|
Executive
acknowledges, understands, and agrees that Executive has been paid
in full
for all hours that Executive has worked for Employer and/or the
Company
and that Executive has been paid any and all compensation or bonuses
which
have been earned by Executive (whether under any employment agreement
or
otherwise) through the date of execution of this Agreement.
|
|
|
(b)
|
Executive
acknowledges, understands, and agrees that Executive is not eligible
for
or vested in any benefits under any salary continuation plan (or
SERP)
with Employer or the Company, and that he waives and releases all
claims
to file suit for same.
|
|
|
(c)
|
Executive
acknowledges, understands, and agrees that Executive does not have
any
outstanding loans from or balances due to Employer and/or the
Company.
|
.
|
|
|
(d)
|
Executive
acknowledges, understands, and agrees that Executive has been informed
of
Employer’s Family and Medical Leave Act (“FMLA”) policy and Executive’s
rights thereunder. Executive acknowledges, understands, and
agrees that he has not been denied any FMLA leave, that he is not
currently requesting any FMLA leave, and that to the extent applicable,
he
has been returned to his same or a substantially similar job following
any
FMLA leave that he has taken.
|
|
|
(e)
|
Executive
acknowledges, understands, and agrees that Executive has no knowledge
of
any actions or inactions by any of the Released Parties or by Executive
that Executive believes could possibly constitute a basis for a
claimed
violation of any federal, state, or local law, any common law or
any rule
promulgated by an administrative body or banking authority.
|
|
|
(f)
|
Executive
acknowledges, understands, and agrees that the consideration described
above in Section 3 of this Agreement is not required by Employer’s or the
Company’s policies and procedures or by any contracts between Executive
and Employer or Executive and the Company. Executive further
acknowledges, understands, and agrees that Executive’s entitlement to
receive the consideration set forth in Section 3 is conditioned
upon
Executive’s execution and delivery of this Agreement and compliance with
the terms of this Agreement.
|
|
|
(g)
|
Executive
acknowledges, understands, and agrees that in executing this Agreement
Executive does not rely, and has not relied, upon any representation
or
statement not set forth herein made by any of the Released Parties
or by
any of the Released Parties’ agents, representatives, or attorneys with
regard to the subject matter, basis, or effect of this Agreement
or
otherwise.
|
|
|
(h)
|
Employer
and the Company advised Executive to consult with an attorney prior
to
executing this Agreement. Executive acknowledges, understands,
and agrees
that Executive has had the opportunity to consult counsel if Executive
chose to do so. Executive acknowledges, understands, and agrees
that
Executive is responsible for any costs and fees resulting from
Executive's
attorney participation in negotiating and/or reviewing this Agreement.
|
|
|
(i)
|
Executive
acknowledges, understands, and agrees that neither Executive nor
his
heirs, executors, administrators, successors, or assigns shall
be entitled
to any personal recovery in any proceeding of any nature whatsoever
against Employer, the Company, or any Released Party arising out
of any of
the matters released in this Agreement.
|
14.
Restrictive
Covenants.
(a)
Agreement Not
to
Solicit Customers or Consultants. Executive agrees that
beginning immediately and continuing for a period of two (2) years from the
Separation Date, Executive will not, either directly or indirectly, on
Executive’s own behalf or in the service of or on behalf of others, solicit,
divert, or appropriate or attempt to solicit, divert, or appropriate to any
third party, any individual or entity which was an actual or actively sought
prospective client, customer, or consultant of Employer and/or the Company
and
with whom Executive had material contact during his term of employment with
Employer, for purposes of providing products or services that are competitive
with those provided by Employer or the Company.
(b)
Agreement Not
to
Solicit Employees. Executive agrees that beginning
immediately, and continuing for a period of two (2) years from the Separation
Date, Executive will not, either directly or indirectly, on his own behalf
or in
the service of or on behalf of others, solicit, divert, or hire, or attempt
to
solicit, divert, or hire, any person employed by Employer and/or the Company,
and whom Executive supervised, either directly or indirectly, or hired on
behalf
of Employer and/or the Company, whether or not such employee is a full-time
employee or a temporary employee of Employer and/or the Company and whether
or
not such employment is pursuant to written agreement and whether or not such
employment is for a determined period or is at will.
(c)
Agreement Not
to
Compete. Executive acknowledges that his specialized skills,
abilities, and contacts have been important to the success of the Bank and
the
Company and that by reason of the character and nature of the Bank’s and the
Company’s business activities and operations and the scope of the territory in
which Executive performed the Services (as defined below) in order to protect
the Bank’s and the Company’s legitimate business interests it is necessary for
Executive to agree not to engage in certain specified activities in such
territory for a certain period of time after his employment with the Bank
and
Company ends. Therefore, for a period of two (2) years after the
Separation Date, Executive will not directly or indirectly, within the Territory
(as defined below), (i) for himself or (ii) as a consultant, independent
contractor, manager, supervisor, employee, or owner of a Competing Business
(as
defined below), engage in any business in which he provides services which
are
the same as or substantially similar to the Services he provided for the
Bank
and/or the Company. “Competing Business” shall mean any person,
business, or entity who or which sells, markets, or distributes products
and/or
sells, furnishes, or provides services substantially the same as those sold,
marketed, distributed, furnished, or supplied by the Bank and/or the Company
during the term of Executive’s employment. “Territory” shall mean the
geographic area encompassed within a sixty (60) mile radius of the
Premises. “Services” shall mean the manager of the operations
department of a Competing Business.
15.
Enforcement
of Restrictive Covenants, Confidentiality and
Non-Disparagement.
(a)
In the event any party breaches, or threatens to commit a breach of, any
of the
provisions of Sections 6, 9, or 14, the injured party shall have the right
and
remedy to enjoin, preliminarily and permanently, the other from violating
or
threatening to violate these sections and to have these sections specifically
enforced by any court of competent jurisdiction, it being agreed that any
breach
or threatened breach of these sections would cause irreparable injury to
the
injured party and that monetary damages would not provide an adequate remedy
to
such party. Such right and remedy shall be in addition to, and not in lieu
of,
any other rights and remedies available to the injured party at law or in
equity.
(b)
Executive acknowledges and agrees that the covenants contained in Sections
6, 9,
or 14 are reasonable and valid in time and scope and in all other respects.
These covenants 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
sections are found to be invalid or unenforceable by a court of competent
jurisdiction because its duration, territory, 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 Employer, 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.
(c)
In the event that the enforcement of any of the terms of this Agreement is
sought in a court of competent jurisdiction, including any period during
which a
restrictive covenant is in force, and the protective restrictive covenant
or
term of the Agreement is held to be enforceable, the restrictive time period
specified in the Agreement shall be deemed tolled upon the filing of the
lawsuit
seeking to enforce the Agreement until the dispute is finally resolved and
all
periods of appeal have expired.
16.
Covenant
Not to Xxx. Employer and the Company agree that neither
Employer nor the Company will, after December 31, 2009 (a period two (2)
years
from the Separation Date), initiate or cause to be initiated any legal
proceedings against Executive based upon or arising from Executive’s acts and/or
omissions and/or alleged acts and/or omissions while Executive was employed
by
the Bank and/or the Company or serving as an officer and/or director of the
Bank
and/or the Company. Executive understands, acknowledges, and agrees
that nothing in this Section limits, compromises, or otherwise modifies either
the Bank’s or the Company’s rights and/or obligations (i) to continue after
December 31, 2009 any legal proceedings against Executive that were initiated
by
Employer and/or the Company on or before December 31, 2009 and/or in which
Employer and/or the Company are involved prior to December 31, 2009; (ii)
to
initiate and/or pursue legal action against Executive on or before December
31,
2009 based upon or arising from Executive’s acts and/or omissions and/or
Executive’s alleged acts and/or omissions while he was employed by the Bank
and/or the Company or serving as an officer and/or director of the Bank and/or
the Company; (iii) to, at any time, initiate and/or pursue legal
action against Executive based upon or arising from Executive’s acts and/or
omissions and/or Executive’s alleged acts and/or omissions that occur or are
alleged to have occurred after December 31, 2007 (whether or not such acts
and/or omissions relate to his employment, officership, and/or directorship
of
the Bank and/or the Company and/or this Agreement); (iv) to, at any time,
disclose suspected and/or actual improprieties and/or unlawful activity to
shareholders and/or appropriate regulatory or governmental authorities,
regardless of when such improprieties and/or unlawful activity (suspected
or
actual) took or are suspected of having taken place; and/or (v) to, at any
time,
cooperate with regulatory and/or other governmental authorities (including
any
court of competent jurisdiction) in any proceeding, investigation, and/or
other
legal action based upon or arising from Executive’s acts and/or omissions and/or
alleged acts and/or omissions, regardless of when such acts and/or omissions
(suspected or actual) took or are suspected of having taken place.
17.
Severability. The
provisions of
this Agreement are severable, and if any paragraph, section, or part is found
to
be unenforceable, the remainder of the Agreement shall remain fully valid
and
enforceable.
18.
Cooperation. Executive
agrees
to cooperate fully with Employer and/or the Company with respect to: (i)
any
banking or regulatory matters or investigations; (ii) clients or customers
of
Employer and/or the Company; (iii) any employment or business issues; and
(iv)
any legal action against Employer and/or the Company, whether or not the
issue
with which Employer or the Company seek Executive’s cooperation concerns any
aspect of Executive’s former employment.
19.
Sole
and
Entire Agreement. This Agreement
sets forth the entire agreement between the parties hereto, and supersedes
any
and all prior agreements or understandings between the parties pertaining
to the
subject matter hereof.
20.
Binding
Effect; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their
respective heirs, representatives, successors, transferees, and permitted
assigns. This Agreement shall not be assignable by Executive but
shall be freely assignable by Employer.
21.
Governing
Law. This Agreement
shall be interpreted under the laws of the State of Georgia.
22.
Regulatory
Approval. The parties have entered into this Agreement in good
faith, intending to be bound fully hereby. Nonetheless, the parties
acknowledge, understand, and agree that the Bank is a regulated entity and,
to
the extent any regulatory agency has the authority to review, disapprove,
or
void this Agreement, the parties agree to be bound thereby.
23.
Knowledgeable
Decision by Executive. Executive
acknowledges, understands, and agrees that Executive has read all the terms
of
this Agreement. Executive understands the terms of this Agreement and
understands that this Agreement releases forever Employer from any legal
action,
arising from Executive’s relationship with Employer and/or the Company as an
employee and board member and the termination of the employment relationship
between Executive and Employer and Executive and the
Company. Executive is signing and delivering this Agreement of
Executive’s own free will in exchange for the consideration to be given to
Executive.
24.
Full
and
Careful Consideration. Executive
acknowledges, understands, and agrees that Executive may take the Agreement
home
and carefully consider all of its provisions before signing
it. Executive may take up to twenty-one (21) days to decide whether
Executive wants to accept and sign this Agreement. Executive
acknowledges, understands, and agrees that if Executive signs this Agreement,
Executive will then have an additional seven (7) days after Executive
signs
the Agreement in which to revoke it. This Agreement will not be
effective or enforceable, nor will any consideration be paid, until after
the
seven (7) day period has expired. Executive is free, and encouraged,
to discuss the contents and advisability of signing this Agreement with an
attorney of Executive’s choosing.
[The
remainder of this page is intentionally blank]
25.
Effective
Date. This Agreement,
consisting of 10 pages and 25 numbered sections shall become effective
immediately following the seven (7) day revocation period set forth herein
(the
“Effective Date”). As of the Effective Date, if Executive has not
revoked this Agreement, this Agreement shall be fully effective and
enforceable.
EXECUTIVE
SHOULD READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT INCLUDES A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS AND CONTAINS RESTRICTIVE COVENANTS
BARRING SPECIFIC ACTIVITIES.
|
December
18, 2007
|
/s/
Xxxxxxx X. Xxxxxx
|
|||
|
DATE
|
Xxxxxxx
X. Xxxxxx
|
|||
|
December
20, 2007
|
Omni
National Bank
|
|||
|
DATE
|
||||
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
|||
|
Name:
|
Xxxxx
X. Xxxxxx
|
|||
|
Title:
|
President
|
|||
|
December
20, 2007
|
||||
|
DATE
|
||||
|
By:
|
/s
Xxxxx X. Xxxxxx
|
|||
|
Name:
|
Xxxxx
X. Xxxxxx
|
|||
|
Title:
|
President
|
|||
COUNSEL
ATTESTS THAT HE HAS READ THE AGREEMENT CAREFULLY AND UNDERSTANDS THAT THE
AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
|
Date:
|
December
18, 2007
|
/s/
Xxxxxx X. Xxxxxxxx
|
||
|
Xxxxxx
X. Xxxxxxxx, Esq.
|
||||
|
Counsel
for Xxxxxxx X. Xxxxxx
|
||||
|
Xxxxxx,
Xxxxxx, Xxxxxxxxx & Xxxx, PLLC
|
