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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of June, 2001, by and among FIRST
NATIONAL BANK OF WEST METRO (in organization) (the "Bank"), a proposed national
bank; WEST METRO FINANCIAL SERVICES, INC., a bank holding company incorporated
under the laws of the State of Georgia (the "Company") (collectively, the Bank
and the Company are referred to hereinafter as the "Employer"), and J. XXXXXXX
XXXXXX, a resident of the State of Georgia (the "Executive").
RECITALS:
The Employer desires to employ the Executive as President and Chief
Executive Officer of the Bank and the Company and the Executive desires to
accept such employment.
In consideration of the above premises and the mutual agreements
hereinafter set forth, the parties hereby agree as follows:
1. DEFINITIONS. Whenever used in this Agreement, the following terms and
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their variant forms shall have the meaning set forth below:
1.1 "AGREEMENT" shall mean this Agreement and any exhibits incorporated
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herein together with any amendments hereto made in the manner described in this
Agreement.
1.2 "AFFILIATE" shall mean any business entity which controls the
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Company, is controlled by or is under common control with the Company.
1.3 "AREA" shall mean the geographic area within the boundaries of
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Paulding County, Georgia. It is the express intent of the parties that the Area
as defined herein is the area where the Executive performs services on behalf of
the Employer under this Agreement.
1.4 "BUSINESS OF THE EMPLOYER" shall mean the business conducted by the
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Employer, which is the business of commercial banking.
1.5 "CAUSE" shall mean:
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1.5.1 With respect to termination by the Employer:
(a) A material breach of the terms of this Agreement by the
Executive, including, without limitation, failure by the Executive to
perform his duties and responsibilities in the manner and to the
extent required under this Agreement, which remains uncured after the
expiration of thirty (30) days following the delivery of written
notice of such breach to the Executive by Employer. Such notice shall
(i) specifically identify the duties that the Board of Directors of
either the Company or the Bank believes the Executive has failed to
perform, (ii) state the facts upon which such Board
of Directors made such determination, and (iii) be approved by a
resolution passed by two-thirds (2/3) of the directors then in office;
(b) Conduct by the Executive that amounts to fraud,
dishonesty or willful misconduct in the performance of his duties and
responsibilities hereunder;
(c) Arrest for, charged in relation to (by criminal
information, indictment or otherwise), or conviction of the Executive
during the Term of this Agreement of a crime involving breach of trust
or moral turpitude;
(d) Conduct by the Executive that amounts to gross and
willful insubordination or inattention to his duties and
responsibilities hereunder; or
(e) Conduct by the Executive that results in removal from his
position as an officer or executive of Employer pursuant to a written
order by any regulatory agency with authority or jurisdiction over
Employer.
1.5.2 With respect to termination by the Executive, a material diminution
in the powers, responsibilities or duties of the Executive hereunder or a
material breach of the terms of this Agreement by Employer, which remains
uncured after the expiration of thirty (30) days following the delivery of
written notice of such breach to Employer by the Executive.
1.6 "CHANGE OF CONTROL" means any one of the following events:
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(a) the acquisition by any person or persons acting in
concert of the then outstanding voting securities of either the Bank
or the Company, if, after the transaction, the acquiring person (or
persons) owns, controls or holds with power to vote twenty-five
percent (25%) or more of any class of voting securities of either the
Bank or the Company, as the case may be; provided, however, that no
acquisition of voting securities by the Executive shall constitute a
Change of Control;
(b) within any twelve-month period (beginning on or after the
Effective Date) the persons who were directors of either the Bank or
the Company immediately before the beginning of such twelve-month
period (the "Incumbent Directors") shall cease to constitute at least
a majority of such board of directors; provided that any director who
was not a director as of the Effective Date shall be deemed to be an
Incumbent Director if that director were elected to such board of
directors by, or on the recommendation of or with the approval of, at
least two-thirds of the directors who then qualified as Incumbent
Directors; and provided further that no director whose initial
assumption of office is in connection with an actual or threatened
election contest (as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Securities Exchange Act of 1934) relating to
the election of directors shall be deemed to be an Incumbent Director;
(c) a reorganization, merger or consolidation, with respect
to which persons who were the stockholders of the Bank or the Company,
as the case may be,
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immediately prior to such reorganization, merger or consolidation do
not, immediately thereafter, own more than fifty percent (50%) of the
combined voting power entitled to vote in the election of directors of
the reorganized, merged or consolidated company's then outstanding
voting securities; or
(d) the sale, transfer or assignment of all or substantially
all of the assets of the Company and its subsidiaries to any third
party.
1.7 "COMPANY INFORMATION" means Confidential Information and Trade
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Secrets.
1.8 "CONFIDENTIAL INFORMATION" means data and information relating to
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the business of the Bank or the Company (which does not rise to the status of a
Trade Secret) which is or has been disclosed to the Executive or of which the
Executive became aware as a consequence of or through the Executive's
relationship to the Employer and which has value to the Employer and is not
generally known to its competitors. Confidential Information shall not include
any data or information that has been voluntarily disclosed to the public by the
Employer (except where such public disclosure has been made by the Executive
without authorization) or that has been independently developed and disclosed by
others, or that otherwise enters the public domain through lawful means.
1.9 "DISABILITY" shall mean the inability of the Executive to perform
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each of his material duties under this Agreement for the duration of the
short-term disability period under the Employer's policy then in effect as
certified by a physician chosen by the Employer and reasonably acceptable to the
Executive.
1.10 "EFFECTIVE DATE" shall mean the date the Bank first opens for
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business.
1.11 "INITIAL TERM" shall mean that period of time commencing on June
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1, 2001 (the "Beginning Date") and running until the close of business on the
last business day immediately preceding the third anniversary of the Beginning
Date.
1.12 "TERM" shall mean the earlier of (a) the last day of the Initial
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Term or most recent subsequent renewal period or (b) any earlier termination of
employment of the Executive under this Agreement as provided for in Section 3.
1.13 "TRADE SECRETS" means Employer information including, but not
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limited to, technical or nontechnical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial data,
financial plans, product plans or lists of actual or potential customers or
suppliers which:
(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.
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2. DUTIES.
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2.1 POSITION. The Executive is employed initially as President and
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Chief Executive Officer of the Bank and the Company, subject to the direction of
the Board of Directors of the Bank or the Company or its designee(s), shall
perform and discharge well and faithfully the duties which may be assigned to
him from time to time by the Bank or the Company in connection with the conduct
of its business. The duties and responsibilities of the Executive are set forth
on Exhibit A attached hereto.
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2.2 FULL-TIME STATUS. In addition to the duties and responsibilities
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specifically assigned to the Executive pursuant to Section 2.1 hereof, the
Executive shall:
(a) devote substantially all of his time, energy and skill
during regular business hours to the performance of the duties of his
employment (reasonable vacations and reasonable absences due to
illness excepted) and faithfully and industriously perform such
duties;
(b) diligently follow and implement all reasonable and lawful
management policies and decisions communicated to him by the Board of
Directors of either the Bank or the Company; and
(c) timely prepare and forward to the Board of Directors of
either the Bank or the Company all reports and accountings as may be
requested of the Executive.
2.3 OTHER PERMITTED ACTIVITIES. While the Executive shall devote
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substantially all of his business time, attention and energies to the
Business of the Employer; this shall not preclude the Executive from
pursuing any other business or professional activities provided such
activities do not interfere or conflict with the duties to be discharged
pursuant to the terms of this Agreement.
3. TERM AND TERMINATION.
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3.1 TERM. This Agreement shall remain in effect for the Term.
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While this Agreement remains in effect, however, it shall renew each day for an
additional day so that the unexpired Term is always three (3) years unless and
until either party gives written notice to the other of its intent not to allow
the Term to renew on a daily basis with such written notice to be effective no
earlier than the date of the notice. In the event such notice of non-renewal is
properly given, this Agreement shall terminate on the close of business on the
third anniversary of the date of the notice of non-renewal or the effective date
of non-renewal specified in the notice, whichever is later.
3.2 TERMINATION. During the Term, the employment of the Executive
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under this Agreement may be terminated only as follows:
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3.2.1 By the Employer:
(a) In the event that the Bank fails to receive its regulatory
charter, or the Company fails to raise the necessary capital required
to open the Bank, and should the Company's or the Bank's Board of
Directors decide to forgo future efforts to open the Bank, in which
event the Employer shall be required to continue to meet its
obligation to the Executive under Section 4.1 for twelve (12) months;
(b) For Cause, upon written notice to the Executive pursuant to
Section 1.5.1 hereof, where the notice has been approved by a
resolution passed by two-thirds of the directors of either the Bank or
the Company then in office;
(c) Without Cause at any time, provided that the Bank shall give
the Executive thirty (30) days' prior written notice of its intent to
terminate, in which event the Employer shall be required to continue
to meet its obligations to the Executive under Section 4.1 for a
period equal to the lesser of (i) twelve (12) months following the
termination or (ii) the remaining Term of the Agreement; or
(d) Upon the Disability of Executive at any time, provided that
the Employer shall give the Executive thirty (30) days' prior written
notice of its intent to terminate, in which event, the Employer shall
be required to continue to meet its obligations under Section 4.1 for
twelve (12) months following the termination or until the Executive
begins receiving payments under the Company's long-term disability
policy, whichever occurs first.
3.2.2 By the Executive:
(a) For Cause, in which event the Employer shall be required to
continue to meet its obligations under Section 4.1 for a period equal
to the lesser of (i) twelve (12) months following the termination or
(ii) the remaining Term of the Agreement; or
(b) Without Cause or upon the Disability of the Executive,
provided that the Executive shall give the Employer sixty (60) days'
prior written notice of his intent to terminate.
3.2.3 At any time upon mutual, written agreement of the parties.
3.2.4 Notwithstanding anything in this Agreement to the contrary,
the Term shall end automatically upon the Executive's death.
3.3 CHANGE OF CONTROL. If the Executive terminates his employment with
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the Employer under this Agreement for any reason within six (6) months following
a Change of Control, the Executive, or in the event of his subsequent death, his
designated beneficiaries or his estate, as the case may be, shall receive, as
liquidated damages, in lieu of all other claims, a severance payment equal to
three (3) times the Executive's then current Base Salary and target
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bonus amount for that calendar year, if any, to be paid in full on the last day
of the month following the date of termination. In no event shall the payment(s)
described in this Section 3.3 exceed the amount permitted by Section 280G of the
Internal Revenue Code, as amended (the "Code"). Therefore, if the aggregate
present value (determined as of the date of the Change of Control in accordance
with the provisions of Section 280G of the Code) of both the severance payment
and all other payments to the Executive in the nature of compensation which are
contingent on a change in ownership or effective control of the Bank or the
Company or in the ownership of a substantial portion of the assets of the Bank
or the Company (the "Aggregate Severance") would result in a "parachute
payment," as defined under Section 280G of the Code, then the Aggregate
Severance shall not be greater than an amount equal to 2.99 multiplied by
Executive's "base amount" for the "base period, " as those terms are defined
under Section 280G. In the event the Aggregate Severance is required to be
reduced pursuant to this Section 3.3, the Executive shall be entitled to
determine which portions of the Aggregate Severance are to be reduced so that
the Aggregate Severance satisfies the limit set forth in the preceding sentence.
Notwithstanding any provision in this Agreement, if the Executive may exercise
his right to terminate employment under this Section 3.3 or under Section
3.2.2(a), the Executive may choose which provision shall be applicable.
3.4 EFFECT OF TERMINATION. Upon termination of the Executive's
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employment hereunder, the Employer shall have no further obligations to the
Executive or the Executive's estate with respect to this Agreement, except for
the payment of salary and bonus amounts, if any, accrued pursuant to Sections
4.1 and 4.2 hereof and unpaid as of the effective date of the termination of
employment and any payments set forth in Sections 3.2.1(a), (c) or (d); Section
3.2.2(a); Section 3.3; and/or Section 4.4, but only to the extent applicable as
provided in such Sections. Nothing contained herein shall limit or impinge upon
any other rights or remedies of the Employee or the Executive under any other
agreement or plan to which the Executive is a party or of which the Executive is
a beneficiary.
4. COMPENSATION. The Executive shall receive the following salary and
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benefits during the Term, except as otherwise provided below:
4.1 BASE SALARY. During the Initial Term, the Executive shall be paid
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a salary for June of 2001 equal to $6,250 and thereafter shall be compensated at
an annual base rate of $150,000 (the "Base Salary"). The obligation for payment
of Base Salary shall be apportioned between the Company and the Bank as they may
agree from time to time in their sole discretion. The Executive's Base Salary
shall be reviewed by the Board of Directors of the Bank and the Company at least
annually, and the Executive shall be entitled to receive annually an increase in
such amount, if any, as may be determined by the Board of Directors of the Bank
or the Company based on its evaluation of Executive's performance. Base Salary
shall be payable in accordance with the Employer's normal payroll practices.
4.2 INCENTIVE COMPENSATION. The Executive shall be entitled to
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annual bonus compensation, if any, as follows:
4.2.1 The Executive shall receive a one-time cash bonus, payable in a
lump sum, if and when the Bank first becomes and remains cumulatively
profitable for a period of no
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less than three-consecutive months. The bonus amount shall be equal to ten
percent (10%) of the Executive's Base Salary then in effect and shall be
paid within thirty (30) days after the close of the relevant performance
period.
4.2.2 Beginning one year after the opening of the Bank and assuming
the Bank has become and remains cumulatively profitable as of its most
recent fiscal year-end, the Executive shall be eligible to receive the
following annual performance bonuses:
(a) The Executive shall be eligible for a bonus amount equal to
fifteen percent (15%) of his Base Salary in effect for the fiscal year
in question if the Bank successfully reaches each of its designated
performance targets for the fiscal year, as determined by the Bank's
Board of Directors.
(b) The Executive shall be eligible for an additional bonus
amount equal to ten percent (10%) of his Base Salary in effect for the
fiscal year in question if the Bank successfully exceeds its
designated performance targets by at least ten percent (10%), as
determined by the Bank's Board of Directors.
(c) The Executive shall be eligible for an additional bonus
amount equal to fifteen percent (15%) of the Bank's pre-tax profits in
an amount up to, but not to exceed, twenty-five (25%) of the
Executive's Base Salary in effect for the fiscal year in question.
Notwithstanding the foregoing, the performance bonuses contemplated by
this Section 4.2.2 shall not become due and payable until the Board of
Directors of the Bank has determined, according to reasonable safety
and soundness standards, that the overall financial condition of the
Bank, including asset quality, will not be adversely affected by the
payment of the performance bonuses.
4.3 STOCK OPTIONS. As of the Effective Date, the Company will have
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established a stock incentive plan and will grant to the Executive pursuant to
such stock incentive plan a nonqualified stock option to purchase 21,000 shares
of the Company's common stock at a per share purchase price no greater than then
fair market value determined as of the date of grant. The option generally will
become vested and exercisable in equal, one-third increments, commencing on the
first anniversary of the option grant date and continuing for the next two (2)
successive anniversaries until the option is fully vested and exercisable. The
option shall expire generally upon the earlier of ninety (90) days following
termination of employment or upon the tenth anniversary of the option grant
date. The option will be issued by the Employer pursuant to the Company's stock
incentive plan and subject to the terms of a related stock option agreement.
For fiscal year 2002 and thereafter, the Executive shall receive an additional,
annual option grant to purchase 3,000 shares of Company common stock if the Bank
successfully reaches each of its designated performance targets for the fiscal
year, as determined by the Bank's Board of Directors. Any such additional,
annual option grant shall be granted as soon as practicable after the close of
the fiscal year for which the award is made; shall have an exercise price no
greater than fair market value determined as of the date of grant; and shall
have the same general terms and conditions as described above for his initial
option grant.
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4.4 HEALTH INSURANCE.
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(a) The Employer shall reimburse the Executive for the cost of premium
payments paid by the Executive for the Executive's current health insurance
covering the Executive and the members of his immediate family until the
first to occur of the following:
(i) such time as the Company adopts a health insurance plan for
employees of the Company and/or the Bank;
(ii) the Company and the Bank abandon their organizational
efforts; or
(iii) twelve (12) months after the Beginning Date.
(b) In the event of termination by the Executive for Cause (Section
3.2.2(a)) or following a Change of Control (Section 3.3), the Employer
shall reimburse Executive for the cost of premium payments paid by the
Executive to continue his then existing health insurance for himself and
his eligible dependents as provided by the Employer for a period of twelve
(12) months following the date of termination of employment.
(c) In the event of a termination by the Employer without Cause
(Section 3.2.1(c)), the Employer shall reimburse the Executive for the cost
of premium payments paid by the Executive to continue his then existing
health insurance for himself and his eligible dependents as provided by
Employer for a period of twelve (12) months following the date of
termination of employment.
4.5 AUTOMOBILE. Beginning as of the Effective Date, at the election of
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the Employer, the Employer will provide Executive with an automobile allowance
of $750 per month or shall provide the Executive with a suitable automobile and
pay for all costs related to the vehicle's operation, maintenance and insurance.
4.6 BUSINESS EXPENSES; MEMBERSHIPS. The Employer specifically agrees
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to reimburse the Executive for:
(a) reasonable and necessary business (including travel) expenses
incurred by him in the performance of his duties hereunder, as approved by
the Board of Directors of either the Bank or the Company; and
(b) beginning as of the Effective Date, the dues and business related
expenditures, including initiation fees, associated with membership in a
single country club and civic associations, as selected by the Executive,
and in professional associations which are commensurate with his position;
provided, however, that the Executive shall, as a condition of
reimbursement, submit verification of the nature and amount of such
expenses in accordance with reimbursement policies from time to time
adopted by the Employer and
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in sufficient detail to comply with rules and regulations promulgated by
the Internal Revenue Service.
4.7 VACATION. On a non-cumulative basis, the Executive shall be
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entitled to four (4) weeks of vacation in each successive twelve-month period
during the Term, during which his compensation shall be paid in full.
4.8 LIFE AND DISABILITY INSURANCE. The Employer shall reimburse the
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Executive for up to $10,000 of life insurance costs incurred annually by the
Executive and shall provide the Executive with disability insurance coverage
providing a benefit equal to at least sixty percent (60%) of his annual
compensation, which coverage shall also contain a cost-of-living adjustment
feature.
4.9 BENEFITS. In addition to the benefits specifically described in
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this Agreement, the Executive shall be entitled to such benefits as may be
available from time to time to executives of the Bank similarly situated to the
Executive. All such benefits shall be awarded and administered in accordance
with the Bank's standard policies and practices. Such benefits may include, by
way of example only, profit-sharing plans, retirement or investment funds,
dental, health, life and disability insurance benefits and such other benefits
as the Bank deems appropriate.
4.10 WITHHOLDING. The Employer may deduct from each payment of
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compensation hereunder all amounts required to be deducted and withheld in
accordance with applicable federal and state income, FICA and other withholding
requirements.
5. COMPANY INFORMATION.
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5.1 OWNERSHIP OF COMPANY INFORMATION. All Company Information
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received or developed by the Executive while employed by the Employer will
remain the sole and exclusive property of the Employer.
5.2 OBLIGATIONS OF THE EXECUTIVE. The Executive agrees:
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(a) to hold Company Information in strictest confidence;
(b) not to use, duplicate, reproduce, distribute, disclose or
otherwise disseminate Company Information or any physical embodiments of
Company Information; and
(c) in any event, not to take any action causing or fail to take any
action necessary in order to prevent any Company Information from losing
its character or ceasing to qualify as Confidential Information or a Trade
Secret.
In the event that the Executive is required by law to disclose any Company
Information, the Executive will not make such disclosure unless (and then only
to the extent that) the Executive has been advised by independent legal counsel
that such disclosure is required by law and then only after prior written notice
is given to the Company when the Executive becomes aware that such
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disclosure has been requested and is required by law. This Section 5 shall
survive for a period of twelve (12) months following termination of this
Agreement for any reason with respect to Confidential Information, and shall
survive termination of this Agreement for any reason for so long as is permitted
by applicable law, with respect to Trade Secrets.
5.3 DELIVERY UPON REQUEST OR TERMINATION. Upon request by the
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Employer, and in any event upon termination of his employment with the Employer,
the Executive will promptly deliver to the Employer all property belonging to
the Employer, including, without limitation, all Company Information then in his
possession or control.
6. NON-COMPETITION. The Executive agrees that during his employment by the
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Bank hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(b),
- by the Executive without Cause pursuant to Section 3.2.2(b), or
- by the Executive in connection with a Change of Control pursuant to
Section 3.3,
for a period of twelve (12) months thereafter, he will not (except on behalf of
or with the prior written consent of the Employer), within the Area, either
directly or indirectly, on his own behalf or in the service or on behalf of
others, as an executive employee or in any other capacity which involves duties
and responsibilities similar to those undertaken for the Employer (including as
an organizer or proposed executive officer of a new financial institution),
engage in any business which is the same as or essentially the same as the
Business of the Employer.
7. NON-SOLICITATION OF CUSTOMERS. The Executive agrees that during his
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employment by the Employer hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(b),
- by the Executive without Cause pursuant to Section 3.2.2(b), or
- by the Executive in connection with a Change of Control pursuant to
Section 3.3,
for a period of twelve (12) months thereafter, he will not (except on behalf of
or with the prior written consent of the Employer), within the Area, on his own
behalf or in the service or on behalf of others, solicit, divert or appropriate
or attempt to solicit, divert or appropriate, any business from any of the
Employer's customers, including actively sought prospective customers, with whom
the Executive has or had material contact during the last two (2) years of his
employment, for purposes of providing products or services that are competitive
with the Business of the Employer.
8. NON-SOLICITATION OF EMPLOYEES. The Executive agrees that during his
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employment by the Employer hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(b),
- by the Executive without Cause pursuant to Section 3.2.2(b), or
- by the Executive in connection with a Change of Control pursuant to
Section 3.3,
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for a period of twelve (12) months thereafter, he will not, within the Area, on
his own behalf or in the service or on behalf of others, solicit, recruit or
hire away or attempt to solicit, recruit or hire away, any employee of the
Employer or its Affiliates to another person or entity providing products or
services that are competitive with the Business of the Employer, whether or not:
- such employee is a full-time employee or a temporary employee of the
Employer or its Affiliates,
- such employment is pursuant to written agreement, and
- such employment is for a determined period or is at will.
9. REMEDIES. The Executive agrees that the covenants contained in Sections
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5 through 8 of this Agreement are of the essence of this Agreement; that each of
the covenants is reasonable and necessary to protect the business, interests and
properties of the Employer, and that irreparable loss and damage will be
suffered by the Employer should he breach any of the covenants. Therefore, the
Executive agrees and consents that, in addition to all the remedies provided by
law or in equity, the Employer shall be entitled to a temporary restraining
order and temporary and permanent injunctions to prevent a breach or
contemplated breach of any of the covenants. The Employer and the Executive
agree that all remedies available to the Employer or the Executive, as
applicable, shall be cumulative.
10. SEVERABILITY. The parties agree that each of the provisions included in
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this Agreement is separate, distinct and severable from the other provisions of
this Agreement and that the invalidity or unenforceability of any Agreement
provision shall not affect the validity or enforceability of any other provision
of this Agreement. Further, if any provision of this Agreement is ruled invalid
or unenforceable by a court of competent jurisdiction because of a conflict
between the provision and any applicable law or public policy, the provision
shall be redrawn to make the provision consistent with and valid and enforceable
under the law or public policy.
11. NO SET-OFF BY THE EXECUTIVE. The existence of any claim, demand, action
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or cause of action by the Executive against the Employer, or any Affiliate of
the Employer, whether predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Employer of any of its rights
hereunder.
12. NOTICE. All notices and other communications required or permitted
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under this Agreement shall be in writing and, if mailed by prepaid first-class
mail or certified mail, return receipt requested, shall be deemed to have been
received on the earlier of the date shown on the receipt or three (3) business
days after the postmarked date thereof. In addition, notices hereunder may be
delivered by hand or overnight courier, in which event the notice shall be
deemed effective when delivered. All notices and other communications under this
Agreement shall be given to the parties hereto at the following addresses:
(i) If to the Employer, to it at:
West Metro Financial Services, Inc.
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
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(ii) If to the Executive, to him at:
0000 Xxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
13. ASSIGNMENT. Neither party hereto may assign or delegate this Agreement
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or any of its rights and obligations hereunder without the written consent of
the other party to this Agreement.
14. WAIVER. A waiver by one party to this Agreement of any breach of this
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Agreement by the other party to this Agreement shall not be effective unless in
writing, and no waiver shall operate or be construed as a waiver of the same or
another breach on a subsequent occasion.
15. ARBITRATION. Any controversy or claim arising out of or relating to
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this contract, or the breach thereof, shall be settled by binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator may be entered
only in the State Court of Paulding County or the federal court for the Northern
District of Georgia. The Employer and the Executive agree to share equally the
fees and expenses associated with the arbitration proceedings. EXECUTIVE MUST
INITIAL HERE: /S/ JMW
16. ATTORNEYS' FEES. In the event that the parties have complied with this
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Agreement with respect to arbitration of disputes and litigation ensues between
the parties concerning the enforcement of an arbitration award, the party
prevailing in such litigation shall be entitled to receive from the other party
all reasonable costs and expenses, including without limitation attorneys' fees,
incurred by the prevailing party in connection with such litigation, and the
other party shall pay such costs and expenses to the prevailing party promptly
upon demand by the prevailing party.
17. APPLICABLE LAW. This Agreement shall be construed and enforced under
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and in accordance with the laws of the State of Georgia.
18. INTERPRETATION. Words importing any gender include all genders. Words
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importing the singular form shall include the plural and vice versa. The terms
"herein", "hereunder", "hereby", "hereto", "hereof" and any similar terms refer
to this Agreement. Any captions, titles or headings preceding the text of any
article, section or subsection herein are solely for convenience of reference
and shall not constitute part of this Agreement or affect its meaning,
construction or effect.
19. ENTIRE AGREEMENT. This Agreement embodies the entire and final
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agreement of the parties on the subject matter stated in this Agreement. No
amendment or modification of this Agreement shall be valid or binding upon the
Employer or the Executive unless made in writing and signed by both parties.
All prior understandings and agreements relating to the subject matter of this
Agreement are hereby expressly terminated.
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20. RIGHTS OF THIRD PARTIES. Nothing herein expressed is intended to or
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shall be construed to confer upon or give to any person, firm or other entity,
other than the parties hereto and their permitted assigns, any rights or
remedies under or by reason of this Agreement.
21. SURVIVAL. The obligations of the Executive pursuant to Sections 5, 6,
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7, 8 and 9 shall survive the termination of the employment of the Executive
hereunder for the period designated under each of those respective sections.
22. JOINT AND SEVERAL. The obligations of the Bank and the Company to
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Executive hereunder shall be joint and several.
IN WITNESS WHEREOF, the Employer and the Executive have executed and
delivered this Agreement as of the date first shown above.
THE BANK:
FIRST NATIONAL BANK OF WEST METRO
(IN ORGANIZATION)
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: Vice Chairman of the Board of Directors
THE COMPANY:
WEST METRO BANK GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: Vice Chairman of the Board of Directors
THE EXECUTIVE:
/s/ J. Xxxxxxx Xxxxxx
------------------------------------------------
J. XXXXXXX XXXXXX
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EXHIBIT A
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INITIAL DUTIES OF THE EXECUTIVE
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The initial duties of the Executive shall include, in addition to any other
duties assigned the Executive by the Board of Directors of the Bank or the
Company or their respective designees, the following:
- Xxxxxx a corporate culture that promotes ethical practices,
encourages individual integrity, fulfills social responsibility, and
is conducive to attracting, retaining and motivating a diverse group
of top-quality employees at all levels.
- Work with the Board of Directors of the Company to develop a
long-term strategy for the Company that creates shareholder value.
- Develop and recommend to the Board of Directors of the Bank
annual business plans and budgets that support the Company's long-term
strategy.
- Manage the day-to-day business affairs of the Company and the
Bank appropriately.
- Use best efforts to achieve the Company and Bank's financial
and operating goals and objectives.
- Use best efforts to improve the quality and value of the
products and services provided by the Bank.
- Use best efforts to ensure that the Bank maintains a
satisfactory competitive position within its industry.
- Develop an effective management team and an active plan for its
development and succession, and make recommendations to the Board of
Directors of the Bank regarding hiring, firing and compensation.
- Implement major corporate policies.
