EXHIBIT 10.4
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into as
of October 13, 2001 by and between Xxxxxx X. Xxxxxx, a resident of the State of
Georgia ("Employee"), and UCB Financial Group, Inc. ("UCB"), a Georgia
corporation.
WITNESSETH:
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WHEREAS, UCB wishes to obtain assurances from Employee that UCB will have
the benefit of Employee's services on the terms and subject to the conditions
set forth herein; and
WHEREAS, Employee wishes to obtain assurances from UCB that he will be
employed on the terms and subject to the conditions set forth herein.
WHEREAS, UCB intends to capitalize and acquire all of the stock of United
Commercial Bank (the "Bank"), a bank to be organized under the laws of the State
of Georgia, upon its formation and obtainment of all regulatory approvals;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, UCB and the Bank, when it is organized, and Employee agree as
follows:
1. Employment. UCB and the Bank hereby employ Employee, and Employee
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hereby accepts such employment and agrees to perform services for UCB and the
Bank, for the period and upon the other terms and conditions set forth in this
Agreement.
2. Term. Commencing as of the date of this Agreement, the term (the
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"Term") of Employee's employment hereunder shall be for a period of five (5)
years and such extended periods as set forth herein, subject to earlier
termination as hereinafter specified. Unless otherwise notified in writing by
the other party at least ninety (90) days in advance of the next scheduled
termination date, this Agreement shall be automatically extended for successive
one year terms.
3. Positions and Duties.
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3.01 Service with UCB and the Bank. During the term of this
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Agreement, Employee shall serve as, and his title shall be, President and Chief
Executive Officer of UCB and, when formed, the Bank. In such position, Employee
agrees to perform such employment duties consistent with such position as the
Board of Directors of UCB or the Bank shall assign to him from time to time.
Employee shall serve, during the Term hereof as a Director of UCB and the Bank
and as a member of the Executive Committee of UCB and the Bank. Employee shall
be entitled to director's fees for his service on the Boards of UCB and the
Bank.
3.02 Performance of Duties. Employee agrees to serve UCB faithfully
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and to the best of his ability shall devote his full time, attention, efforts,
energy and skill to the diligent performance of his duties as an officer and
director of the Bank and UCB. During the Term hereof Employee shall not serve
as an officer, director or employee of any other entity not affiliated with UCB
or the Bank without the prior written consent of UCB's or the Bank's Board of
Directors. Notwithstanding the foregoing, (i) Employee may pursue such personal
investment and financial matters as do not conflict with his obligations and
commitments to UCB or the Bank, (ii) Employee may participate in charitable,
religious or civic activities such as serving on a school board, church board or
community fund committee and (iii) Employee may participate in such other
activities as the Board of Directors of UCB or the Bank may from time to time
approve in writing. Employee hereby confirms that he is under no contractual
commitments inconsistent with his obligations set forth in this Agreement.
4. Compensation.
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4.01 Base Salary. As compensation for all services to be rendered by
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Employee under this Agreement, UCB and the Bank shall pay to Employee an initial
annual base salary for the period from October 1, 2001, through and including
September 30, 2002, of $165,000. Thereafter, the Board of Directors of UCB and
the Bank shall review Employee's base salary annually and in its sole discretion
may increase Employee's base salary from year to year; provided that in the year
2003 the base salary shall be subject to a minimum annual increase by an amount
equal to the product of (i) the "CPI Adjustment" (hereinafter defined)
multiplied by (ii) the base salary in effect immediately prior to such increase.
The effective date of all such increases shall be retroactive to January 1 of
the year in which the adjustment takes effect notwithstanding the fact that the
CPI Adjustment generally will not be capable of being calculated until some time
in February or March of such year. The base salary described in this Section
4.01, as it may be increased from time to time, is referred to herein as the
"Base Salary." The Base Salary shall be paid in accordance with UCB's and the
Bank's normal payroll procedures and policies.
For purposes of this Section 4.01, "CPI Adjustment" shall mean the
percentage increase, if any, in the "CPI-U Index" (hereinafter defined) between
(a) the average CPI-U Index for the year in which the Base Salary adjustment in
question is to take effect and (b) the average CPI-U Index for the immediately
preceding year. "CPI-U Index" shall mean the "Consumer Price Index For All
Urban Consumers, Atlanta, Georgia (1982-84=100)" as published by the Bureau of
Labor Statistics of the United States Department of Labor. If the CPI
Adjustment is zero or a negative number, the amount of the CPI Adjustment shall,
for purposes of this Section 4.01, be deemed to be zero.
4.02 Incentive Compensation. Until an Officer and Employee Incentive
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Program (the "Incentive Program") is implemented, the Board of Directors of UCB
and the Bank, in consultation with the Chief Executive Officer, will determine
the amount of performance bonus to be awarded to the executive officers. For the
first three full years commencing with the year ending December 31, 2001, the
Chief Executive Officer will be awarded a bonus of 15% of his Base Salary as
long as he exceeds the mutually agreed upon performance goals. After the first
three full years, the Chief Executive Officer will be awarded an incentive bonus
under the Incentive Program. This section will not become effective until the
Bank is cumulatively profitable.
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4.03 Stock Options. Upon the formation and capitalization of the Bank
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by UCB, the Employee will be awarded options to purchase the number of shares of
the common stock of UCB equal to five percent (5%) of the total number of
outstanding shares of UCB at the time of the grant. It is the intent of the
parties that the options shall qualify as "Incentive Stock Options" within the
meaning of Section 422 of the Internal Revenue Code of 1986 as amended. The per
share option exercise price shall be the greater of the fair market value of a
share of the common stock of UCB at the time of the grant or ten dollars ($10).
The options granted to the Employee pursuant to this Section 4.03 may be
exercised by the Employee, in whole or in part, at any time or from time to time
during the period that this Agreement is in effect through the earlier of ten
(10) years from the date of grant of such options or three (3) months after the
termination of the Employee's employment with UCB and the Bank.
4.04 Participation in Benefit Plans. Employee shall also be entitled
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to participate, on a comparable basis with other senior executives of UCB or the
Bank, in all employee benefit plans or programs of UCB or the Bank in effect
from time to time including, but not limited to, medical, dental, life and
disability insurance programs. Employee's participation in any such plan or
program shall be subject to all provisions, rules and regulations applicable
thereto. The Employee shall be entitled to a comprehensive annual physical paid
for by the Bank or UCB.
4.05 Expenses. In accordance with UCB' policies established from time
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to time, UCB or the Bank shall pay or reimburse Employee for all reasonable and
necessary out-of-pocket expenses incurred by him in the performance of his
duties under this Agreement, subject to the presentment of appropriate vouchers
and receipts. The Employee shall be furnished with: an automobile and all
expenses of maintenance to cover all automobile use; a reasonable expense
account; the payment of reasonable expenses for attending annual and periodic
meetings of trade associations; and any other benefits which are commensurate
with the responsibilities and functions to be performed by the Employee under
this Agreement. UCB or the Bank also agrees to pay all reasonable expenses in
connection with the attendance and participation at said trade association
meetings by Employee's spouse.
4.06 Other Benefits.
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(a) At such reasonable times as the Board of Directors of UCB or
the Bank shall in its discretion permit, the Employee shall be entitled,
without loss of pay, to absent himself voluntarily from the performance of his
employment under this Agreement, all such voluntary absences to count as
vacation time, provided that:
(i) The Employee shall be entitled to an annual vacation of
four (4) weeks per year.
(ii) The timing of vacations shall be scheduled in a
reasonable manner by the Employee. The Employee shall not be entitled to receive
any additional
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compensation from UCB or the Bank on account of his failure to take a vacation;
nor shall he be entitled to accumulate unused vacation time from one calendar
year to the next.
In addition to the aforesaid paid vacations, the
Employee shall be entitled, without loss of pay to absent himself voluntarily
from the performance of his employment with the Bank and UCB for such additional
periods of time and for such valid and legitimate reasons as the Board of
Directors in its discretion may determine. Further, the Boards of Directors of
UCB and the Bank shall be entitled to grant to the Employee a leave or leaves of
absence with or without pay at such time or times and upon such terms and
conditions as the Board, in its discretion, may determine.
(b) In connection with entering into this Agreement, Employee
has put his home located at 00 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx, up for sale.
Commencing October 1, 2001 UCB and the Bank shall reimburse Employee for his
monthly mortgage payment of $1,294.20 until the house sells. UCB and the Bank
agree to reimburse the Employee for the difference between the appraised value
of his home, and its actual sales price if the sales price is less than the
appraised value.
(c) Upon the Bank becoming cumulative profitable, the Bank shall
Establish a retirement plan for the Employee based on a split-dollar life
insurance plan similar to the plan that Employee's previous employer had in
place.
(d) The bank during the period prior to becoming cumulative
profitable will maintain a term life insurance policy in the amount of
$750,000.00 on the employee with a beneficiary named by the employee.
5. Confidentiality.
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5.01 General. In Employee's position as an employee of UCB and the
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Bank, Employee has had and will have access to confidential information, trade
secrets and proprietary information of vital importance to UCB and the Bank, and
Employee has and will also develop relationships with customers, employees and
others who deal with UCB and the Bank (and their subsidiaries and affiliates)
which are of value to UCB and the Bank. UCB and the Bank require as a condition
to Employee's employment with UCB and the Bank that Employee agree to certain
restrictions on Employee's use of the proprietary information and valuable
relationships developed during Employee's employment with UCB and the Bank. In
consideration of the terms and conditions contained herein, the parties hereby
agree as follows:
5.02 Fiduciary Responsibility. UCB, the Bank and Employee agree and
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acknowledge that UCB and the Bank (and their subsidiaries and affiliates) may
entrust Employee with highly sensitive confidential, restricted and proprietary
information concerning various "Business Opportunities" (hereinafter defined),
customer lists, and personnel matters. Employee acknowledges that, as an
essential incident of Employee's employment with UCB and the Bank, Employee
shall have a fiduciary responsibility to UCB and the Bank to protect such
information from use or disclosure that is not necessary for the performance of
Employee's duties hereunder.
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5.03 Definitions. For the purposes of this Agreement, the following
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definitions shall apply:
(a) "Trade Secrets" mean information, without regard to form,
including, but not limited to, technical or non-technical 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: (i) were not commonly known by or
available to the public; (ii) 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 its disclosure or
use; and (iii) are the subject of efforts that are reasonable under the
circumstances to maintain their secrecy. Trade Secret also shall include any
other information defined as a "trade secret" under the Georgia Trade Secret Act
of 1990, O.C.G.A. (S)10-1-760 through (S)10-1-767.
(b) "Confidential Information" shall mean any data or
information, other than Trade Secrets, which is material to UCB or to the Bank,
and which is not generally known by the public. Confidential Information shall
include, but not be limited to, data or information related to: (i) the taking
of deposits, making loans and extensions of credit, cashing checks, and other
operations incident to the business of banking ("Business of UCB and the Bank");
(ii) any information pertaining to the identity of the customers, depositors or
borrowers served by, or Business Opportunities (hereinafter defined) of, UCB or
the Bank; (iii) the details of this Agreement, UCB's and the Bank's respective
business, marketing and acquisition plans; (iv) financial statements and
projections, and the costs of the services the Bank may offer or provide to the
customers, depositors or borrowers they serve, to the extent such information is
material to UCB or the Bank and not generally known by the public; and (v)
information acquired by Employee from the Bank relating to the Bank's methods of
doing business.
(c) "Business Opportunities" shall mean any specialized
information or plans of UCB or the Bank concerning the business of UCB or the
Bank, including, but not limited to, the financing of or investment in, by UCB
or the Bank, any target entity, business or project, together with all related
information concerning the specifics of any contemplated financing, investment,
acquisition or purchase (including pricing, terms and the identity of such
person, business or project) regardless of whether UCB or the Bank has entered
any agreement, made any commitment or issued any bid or offer to such person,
business or project.
(d) Notwithstanding the definitions of Trade Secrets,
Confidential Information and Business Opportunities set forth above, Trade
Secrets, Confidential Information and Business Opportunities shall not include
any information:
(i) that is or becomes generally known to the public (other
than as a result of a breach of the Agreement by Employee);
(ii) that is developed by Employee after termination of
employment through entirely independent efforts;
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(iii) that Employee obtains from an independent source having a
bona fide right to use and disclose such information;
(iv) that is required to be disclosed by law, except to the
extent eligible for special treatment under an appropriate protective order; or
(v) that the respective Boards of Directors of UCB or the Bank
approve for unrestricted release by express written authorization.
5.04 Trade Secrets. Employee shall not, without the prior written
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consent of the Board of Directors of UCB or the Bank, during his employment with
UCB and the Bank and for so long thereafter as the information or data remains
Trade Secrets, use or disclose, or negligently permit any unauthorized person
who is not an employee of UCB or the Bank to use, disclose, or gain access to,
any Trade Secrets of UCB or the Bank, or of any of their subsidiaries or
affiliates, or of any other person or entity making Trade Secrets available for
UCB's or the Bank's (or any of their subsidiaries' or affiliates') use.
5.05 Confidential Information. Employee shall not, without the prior
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written consent of the Board of Directors of UCB or the Bank, during his
employment with UCB and the Bank and for a period of one (1) year after
termination of his employment for any reason, as long as the information or data
remain competitively sensitive, use or disclose, or negligently permit any
unauthorized person who is not employed by UCB or the Bank to use, disclose or
gain access to, any Confidential Information to which the employee obtained
access by virtue of his employment with UCB or the Bank.
5.06 Observance of Security Measures. During Employee's employment
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with UCB and the Bank, Employee is required to observe all security measures
adopted to protect Trade Secrets, Confidential Information and Business
Opportunities of UCB or the Bank.
6. Solicitation of Customers, Borrowers or Depositors.
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6.01 After Termination of Employment. Upon termination of this
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Agreement for any reason, Employee shall not, directly or indirectly, as
principal, agent, trustee or consultant or through the agency of any
corporation, partnership, association, trust or other entity or person, on
Employee's own behalf or for others, within one (1) year after such termination
actively solicit, divert or take away or attempt to actively solicit, divert or
take away any customers, depositors or borrowers of UCB or the Bank whom
Employee had served during his term of employment for the purpose of providing
services which constitute the Business of UCB and the Bank (as defined above).
6.02 During Employment. During Employee's employment with UCB and the
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Bank, Employee shall not, except on behalf of UCB or the Bank, solicit, divert,
take away or accept the business of, or attempt to solicit, divert or take away
the business of, any of the customers, depositors or borrowers of UCB or the
Bank for the purpose of performing the Business of UCB and the Bank for such
customers, depositors or borrowers.
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7. Non-Interference with Personnel Relations.
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Employee shall not, during his employment with UCB and the Bank and
for a period of one (1) year after the termination of his employment with UCB
and the Bank for any reason, knowingly solicit, entice or persuade any other
employees or agents of UCB or the Bank (or of any of their subsidiaries or
affiliates) to leave the services of UCB or the Bank (or such subsidiary or
affiliate).
8. Notification of Subsequent Employment.
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During a period of one (1) year after the termination of Employee's
employment with UCB and the Bank, Employee shall notify UCB and the Bank in
writing, within thirty (30) days after accepting employment with any other
corporation, partnership, association, person, organization or other entity, of
the name and address of Employee's new employer and Employee's functions with
his new employer.
9. Covenant Not to Compete.
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9.01 General. For Purposes of this Section 9, UCB, the Bank and
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Employee conduct the following business in the following territory:
(a) UCB is engaged in the business of transacting business as a
holding company with the Bank as its subsidiary bank which accepts deposits,
makes loans, cashes checks and otherwise engages in the business of banking;
(b) UCB (through the Bank) actively conducts the Business of UCB and
the Bank within a twenty (20) mile radius of the location of UCB and the Bank at
0000 Xxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 (the "Geographic Area"); and
(c) Employee has established business relationships and performs the
duties required of Employee under this Agreement in the Geographic Area and will
work in such Geographic Area while in the employ of UCB and the Bank.
9.02 Non-Competition. Employee covenants and agrees that for a period
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of one (1) year after the termination of his employment with UCB and the Bank
without "cause" and for six (6) months after termination of his employment with
UCB and the Bank with "cause" ("cause" is defined in Section 10.01(c) below),
Employee shall not directly or indirectly, as principal, agent, trustee,
consultant or through the agency of any corporation, partnership, association,
trust or other entity or person, on Employee's own behalf or for others, provide
services that are the same as or similar to the services provided by Employee
under this Agreement to or for the benefit of any entity or person conducting a
business similar to the Business of UCB and the Bank within the Geographic Area.
10. Termination.
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10.01 Grounds for Termination. This Agreement shall terminate prior to
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the expiration of the initial Term set forth in Section 2 or any extension
thereof in the event that any anytime during such initial Term or any extension
thereof:
(a) UCB or the Bank shall give notice to Employee that UCB is
terminating this Agreement without cause, which notice shall specify the
effective date of Employee's termination;
(b) Employee shall die or the Board of Directors of UCB or the
Bank shall determine that Employee has become disabled (as defined in Section
10.02); or
(c) The Board of Directors of UCB or the Bank shall determine
that Cause exists. "Cause" means: (i) having been convicted under the laws of
any government jurisdiction of: (A) a felony; or (B) a criminal offense which is
not a felony but which has a material adverse effect on UCB or the Bank (or any
of its subsidiaries or affiliates) or on the ability of Employee to carry out
his duties hereunder (provided, however, that in no event shall minor traffic
violations constitute "Cause"; (ii) having committed any action constituting
theft or fraud against UCB or the Bank (or any of its subsidiaries or
affiliates); (iii) the breach of any of the Employee's covenants or obligations
hereunder; (iv) the knowing failure of the Employee to follow specific
directives of the Board of Directors of UCB or the Bank consistent with
Employee's duties; or (v) the termination by Employee of his employment
hereunder prior the expiration of the term of the Agreement, unless such
termination is pursuant to Section 10.01 (d) or 10.01 (e) hereof.
(d) Employee shall determine that UCB or the Bank has breached
this Agreement in any material respect (including, but not limited to, UCB's or
the Bank's failure to make any payment required under this Agreement), which
breach is not cured by UCB or the Bank within thirty (30) days after written
notice of such breach is delivered to UCB and the Bank by the Employee.
(e) Employee, within thirty (30) days following the occurrence
of a "Change in Control" (as defined in Section 10.03), notifies UCB in writing
that he is electing to terminate this Agreement pursuant to this Section
10.01(e).
(f) The failure of the Bank for any reason to obtain a Charter
and commence a banking business.
Notwithstanding any termination of this Agreement, in consideration of
his employment hereunder to the date of such termination, to the extent
specifically provided for herein, the Employee shall remain bound by provisions
of this Agreement which specifically relate to periods subsequent to the
termination of Employee's employment hereunder.
10.02 "Disability" Defined. The Board of Directors of UCB or the Bank
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may, in its discretion reasonably exercised, determine that Employee has become
disabled, for the purpose of Section 10.01(b) of the Agreement, in the event
that Employee shall fail, in one or more material respects, because of illness
or other physical or mental incapacity, to render
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services of the character contemplated by this Agreement for an aggregate of
more than sixty (60) calendar days during any period of 120 consecutive days.
10.03 "Change in Control" Defined. For purposes of this Agreement, a
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"Change in Control" shall be deemed to have occurred if more than fifty percent
(50%) of UCB's outstanding common stock or equivalent in voting power of any
class or classes of outstanding securities of UCB entitled to vote in elections
of its directors, shall be acquired by any person or group of persons acting in
concert. Additionally, a "Change in Control" shall be deemed to have occurred
if: (i) more than fifty percent (50%) of the Bank's outstanding common stock or
equivalent in voting power of any class or classes of outstanding securities of
the Bank entitled to vote in elections of its directors, shall be acquired by
any person or group of persons acting in concert; or (ii) substantially all of
--
the assets of UCB or the Bank shall be sold to another person or entity.
10.04 Surrender of Records and Property. Upon the request of UCB or
---------------------------------
the Bank and, in any event, upon termination of his employment with UCB or the
Bank, Employee shall deliver promptly to UCB and the Bank all records, manuals,
books, blank forms, documents, letters, memoranda, notes, notebooks, reports,
data, tables, calculations or copies thereof, which are the property of UCB or
the Bank (or any of their subsidiaries of affiliates) and which relate in any
way to the business, products, practices or techniques of UCB or the Bank (or
any of their subsidiaries or affiliates), and all other property, Trade Secrets
and Confidential Information of UCB or the Bank (or any of their subsidiaries or
affiliates), including, but not limited to, all documents which in whole or in
part contain any Trade Secrets or Confidential Information of UCB or the Bank
(or any of their subsidiaries or affiliates), which in any of these cases are in
his possession or under his control.
11. Compensation Upon Termination.
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11.01 Sections 10.01(a) and (d) Termination. In the event this
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Agreement is terminated pursuant to Sections 10.01 (a) or 10.01(d) hereof,
Employee will receive a lump sum payment equal to his annual Base Salary then in
effect, in addition to: (i) payment to Employee of his then current Base Salary
through the effective date of termination; (ii) any bonus, or pro rata portion
thereof to which Employee shall be entitled to receive pursuant to Section 4.02
hereof; and (iii) reimbursement of expenses incurred by Employee in accordance
with Section 4.05 hereof.
11.02 Section 10(e) Termination. In the event this Agreement is
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terminated pursuant to Section 10.01(e) hereof, Employee shall be entitled to
receive immediately upon the happening of the event specified in Section
10.01(e): (i) a lump sum payment equal to three (3) times his current Base
Salary; (ii) any bonus, or pro rata portion thereof, to which Employee shall be
entitled to receive pursuant to Section 4.02 hereof; (iii) non-forfeited
deferred compensation to be paid out in full; and (iv) all restricted stock and
stock options shall be deemed to be 100% vested and any restrictions shall
lapse.
11.03 Sections 10.01(b), (c) and (f) Termination. In the event this
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Agreement is terminated pursuant to Sections 10.01(b), 10.01(c) or 10.01(f),
Employee shall not be entitled to
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any compensation other than: (i) payment of his then current Base Salary accrued
through the effective date of termination; and (ii) reimbursement of expenses
incurred by Employee in accordance with Section 4.05 hereof, and all rights of
Employee to further compensation shall thereupon cease and be terminated.
12. Assignment and Inurement. This Agreement shall ensure to the benefit
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of and be binding upon the parties hereto and their respective heirs,
successors, administrators, and permitted assigns. This is a personal service
contract and, except to the extent specifically contemplated hereby, may not be
assigned by Employee without the prior written consent of UCB and the Bank.
13. Injunctive Relief. Employee agrees that it would be difficult to
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compensate UCB or the Bank fully for damages for any violation of the provisions
of this Agreement, including without limitation the provisions of Section 5, 6,
7, 8, 9 and 10.04. Accordingly, Employee specifically agrees that UCB or the
Bank shall be entitled to temporary and permanent injunctive relief to enforce
the provisions of this Agreement. This provision with respect to injunctive
relief shall not, however, diminish the right of UCB or the Bank to claim and
recover damages in addition to injunctive relief.
Notwithstanding anything in Section 15 hereof to the contrary, any
party to this Agreement may petition the Superior Court of Xxxxxx County,
Georgia for temporary injunctive relief. All disputes, controversies or claims
arising out of or related to this Agreement, other than a request for temporary
injunctive relief, shall be resolved in accordance with the provisions of
Section 15 hereof. The parties hereby agree that jurisdiction and venue for any
action seeking temporary injunctive relief pursuant to this Section 13 shall lie
in the Superior Court of Xxxxxx County, Georgia. The parties hereby agree,
further, that any temporary restraining order entered pursuant to this Section
13 shall remain in effect until the dispute giving rise thereto is resolved
pursuant to the provisions of Section 15 and the parties agree to enter into any
and all consent orders required to maintain such temporary restraining order in
effect until such time.
14. Miscellaneous.
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14.01 Governing Law. This Agreement is made under and shall be
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governed by and construed in accordance with the laws of Georgia.
14.02 Prior Agreements. This Agreement contains the entire agreement
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of the parties relating to the subject matter hereof and supersedes all prior
agreements and understandings with respect to such subject matter, and the
parties hereto have made no agreements, representations or warranties relating
to the subject matter of this Agreement which are not set forth herein.
14.03 Withholding Taxes. UCB and the Bank may withhold from any
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benefits payable under this Agreement all federal, state, city and other taxes
as shall be required pursuant to any law or government regulation or ruling.
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14.04 Amendments. No amendment, modification or waiver of this
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Agreement or any provision hereof shall be deemed effective unless made in
writing signed by the party against whom enforcement of the amendment,
modification or waiver is sought. Any written waiver shall not be deemed a
continuing waiver unless specifically stated and shall operate only as to the
specific term or condition waived.
14.05 Notices. Any notice, request, demand or other document to be
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given hereunder shall be in writing, and shall be delivered personally or sent
by registered, certified or express mail or facsimile followed by mail as
follows:
If to UCB or the Bank:
0000 Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board
If to Employee:
Xxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Or to such other address as either party hereto may hereafter duly give to the
other.
14.06 Severability. To the extent any provision of this Agreement
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shall be invalid or unenforceable, it shall be considered deleted herefrom and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect. In furtherance and not in limitation
of the foregoing, should the duration or geographical extent of, or business
activities covered by any provision of this Agreement be in excess of that which
is valid or enforceable under applicable law, then such provision shall be
construed to cover only that duration, extent or activities which may validly
and enforceably be covered. Employee acknowledges the uncertainty of the law in
this respect and expressly stipulates that this Agreement be given the
construction which renders its provisions valid and enforceable to the maximum
extent (not exceeding its express terms) possible under applicable law.
15. Arbitration. Any and all disputes, controversies or claims arising out
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of or related to this Agreement (other than a request for a temporary
restraining order pursuant to Section 13 hereof), shall be resolved by binding
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association ("AAA"). Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. In the
event of any inconsistency between the provisions of this Section 15 and AAA's
Commercial Arbitration Rules, the provisions of this Section 15 shall govern.
Any party may initiate arbitration by serving written notice of its intentions
to arbitrate on the other parties. The venue of any such arbitration shall be
Atlanta, Georgia. The arbitration panel shall consist of three
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arbitrator selected as follows. Within thirty (30) days following the date on
which the arbitration provision of this Section 15 is invoked by a party,
Employee, on the one hand, and UCB and/or the Bank, on the other, shall each
select an arbitrator from a list of arbitrators provided by AAA. The lists from
which Employee and UCB and/or the Bank select their respective arbitrators shall
be identical. If either Employee or UCB and/or the Bank fails to select its
arbitrator within the time required, the other shall be entitled to select its
arbitrator for it. Within fifteen (15) days following the selection of the last
to be selected of the two (2) arbitrators, the two (2) arbitrators so selected
shall select a third arbitrator. A preliminary arbitrator hearing shall be held
within thirty (30) days following the selection of the third arbitrator for the
purpose of scheduling discovery and the evidentiary hearing(s). The first
evidentiary hearing shall be held within thirty (30) days following the
preliminary hearing. The arbitration panel shall deliver its award in writing,
including findings of facts, to the parties within thirty (30) days following
the final arbitration hearing. Evidence and testimony shall be admitted in
accordance with the Federal Rules of Evidence. The arbitration panel shall have
authority to grant temporary or permanent injunctive relief or other equitable
remedies. Each party shall bear its own costs and expenses of the arbitration
proceeding.
___________________ ____________________ ____________________
UCB Bank Employee
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first set forth herein. The Bank shall execute this Agreement upon its
formation and capitalization.
UCB FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxx
--------------------------------
Title: Chairman
-------------------------------
UNITED COMMERICAL BANK
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxx
--------------------------------
Title: Chairman
-------------------------------
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx
12
