EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of January, 1998 between First
Citizens Corporation (the "Employer"), and Xxx Xxxx, a resident of the State of
Georgia (the "Employee").
RECITALS:
The Employer desires to employ the Employee as the President and Chief
Executive Officer of the Employer and the President and Chief Executive Officer
of First Citizens Bank (the "Bank") and the Employee 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 their
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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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Employer, is controlled by or is under common control with the Employer.
1.3 "Area" shall mean the geographic area within the boundaries of
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Fayette, Xxxxxxx, Xxxxx, Coweta, and Xxxxx Counties. It is the express intent of
the parties that these counties are the Area where the Employee performs or
performed services on behalf of the Employer under this Agreement as of, or
within a reasonable time prior to, the termination of the Employee's employment
hereunder.
1.4 "Business of the Employer" shall mean the business conducted by the
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Employer, which is 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 Employee, including, without limitation, a breach of
any representation or warranty of the Employee set forth
herein, or a violation of the Employer or the Banks' written
policies, or the specific directions of the Board which
directions are consistent with normally accepted business
practices.
(b) Conduct by the Employee that amounts to fraud,
dishonesty or willful misconduct in the performance of
his duties and responsibilities hereunder;
(c) The conviction of the Employee of a felony;
(d) Conduct of the Employee that amounts to gross and
willful insubordination or inattention to his duties and
responsibilities hereunder; or
(e) Conduct by the Employee that results in removal
from his position as an officer or employee of the Employer
pursuant to a written order by any regulatory agency with
authority or jurisdiction over the Employer.
1.5.2 With respect to termination by the Employee, a material
diminution in the powers, responsibilities, duties, or compensation of
Employee hereunder, or the failure of the Board of Directors of the
Bank and the Employer to elect him as President and Chief Executive
Officer of the Bank and the Employer, or a material breach of the terms
of this Agreement by the Employer which remains uncured after the
expiration of thirty (30) days following the delivery of written notice
of such breach to the Employer by the Employee; [provided, however,
that in the event that the Employer shall grow so as to have Five
Hundred Million Dollars ($500,000,000.00) or more in assets, the Boards
of Directors of the Employer and the Bank may, without giving the
Employee grounds for termination herein, cause Employee's duties as
President and Chief Executor Officer of the Bank to be eliminated and
the Employee to be solely charged with performing the duties of
President and Chief Executive of Employer].
1.6 "Employer Information" means Confidential Information or Trade
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Secrets.
1.7 "Confidential Information" means data and information relating to
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the business of the Employer (which does not rise to the status of a Trade
Secret) which is or has been disclosed to Employee or of which Employee became
aware as a consequence of or through Employee'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 Employee without authorization) or that has been
independently developed and disclosed by others, or that otherwise enters the
public domain through lawful means.
1.8 "Change in Control" of the Employer shall mean any transaction
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wherein fifty percent (50%) of the shares of the Bank or the Employer, plus one
share, are directly or indirectly transferred by sale, gift, merger, exchange or
any other means to new owners other than an Affiliate of such person or entity
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transferring such shares of or if a majority of the members of the Board of
Directors of the Employer are replaced.
1.9 "Initial Term" shall mean that period of time commencing on the
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date of execution of this Agreement by the Employer and the Employee and running
until the earlier of three (3) years thereafter or any termination of employment
of the Employee under this Agreement as provided for in Section 3.
1.10 "Permanent Disability" shall mean the total inability of the
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Employee to perform his duties under this Agreement for a period of ninety (90)
consecutive days as certified by a physician chosen by the Employer and
reasonably acceptable to the Employee.
1.11 "Term" shall mean the Initial Term and all subsequent renewal
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periods.
1.12 "Trade Secrets" means information including, but not limited to,
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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 (i) derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons
who an obtain economic value from its disclosure or use; and (ii) is the subject
of efforts that are reasonable under the circumstances to maintain its secrecy.
2. Duties.
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2.1 The Employee is employed initially as the President and Chief
Executive Officer of the Bank and President of the Employer. Employee, subject
to the direction of the Board or its designee, shall perform and discharge well
and faithfully the duties which may be assigned to him from time to time by the
Employer in connection with the conduct of its business. The initial duties and
responsibilities of the Employee are set forth on Exhibit A attached hereto.
2.2 In addition to the duties and responsibilities specifically
assigned to the Employee pursuant to Section 2.1 hereof, the Employee shall: (1)
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; (2) diligently follow and implement all
management policies and decisions communicated to him by the Board; and (3)
timely prepare and forward to the Board all reports and accounting as may be
requested of the Employee.
2.3 The Employee shall devote his entire business time, attention and
energies to the Business of the Employer and shall
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not during the term of this Agreement be engaged (whether or not during normal
business hours) in any other business or professional activity, whether or not
such activity is pursued for gain, profit or other pecuniary advantage; without
limitation, the Employee shall not be engaged in, shall not participate in,
shall not invest in, and shall have no relationship whatsoever with any business
or entity which shall conduct business relations with the Bank or the Employer.
Notwithstanding the above, the limitations of this paragraph shall not be
construed as preventing the Employee from (1) investing his personal assets in
businesses which will not require any services on the part of the Employee in
their operation or affairs and in which his participation is solely that of an
investor, (2) purchasing securities in any corporation whose securities are
regularly traded provided that such purchase shall not result in his
collectively owning beneficially at any time one percent (1%) or more of the
equity securities of any business in competition with the Business of the
Employer and (3) participating in civic and professional affairs and
organizations. Prior to commencing any activity described in clause (3) above,
the Employee shall inform the Board, in writing, of any such activity.
3. Term and Termination.
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3.1 Term. This Agreement shall remain in effect for the Initial Term.
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At the end of the first month hereunder and at the end of each successive month,
this Agreement shall automatically be extended for a successive month following
the then two-year and eleven month remaining term unless either party gives
written notice to the other of its intent not to extend this Agreement with such
written notice to be given not less than ninety (90) days prior to the end of
such monthly period. In the event such notice of non-extension is properly
given, this Agreement shall terminate at the end of the remaining term then in
effect. However, notwithstanding the provisions of this Section 3.1, no
extension shall be granted that would extend the term of this Agreement beyond
the last day of the month during which the Employee attains age 62.
3.2 Termination. During the Term, the employment of the Employee under
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this Agreement may be terminated only as follows:
3.2.1 By the Employer:
(a) For Cause [provided that if Cause is as defined
in Section 1.5.1(a) the Employer shall first have given
Employee written notice of the act or failure which Employer
asserts constitutes such Cause and fifteen (15) days to cure
such] in which event the Employer shall have no further
obligation to the Employee except for the payment of any
amounts which have vested and are due and owing under Section
4 as of the effect date of termination; (but not any amount
accruing thereafter); or
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(b) Without Cause or upon the Permanent Disability of
Employee at any time, provided that the Employer shall give
the Employee 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 Employee
under Section 4 for a period of thirty-six months following
termination; provided further, however, that in the event of
the Permanent Disability of the Employee, the Employer shall
pay to the Employee a sum equal to the difference between the
payments made to the Employee as short term disability
payments during the first six (6) months of such Permanent
Disability and the full salary of the Employee, and shall
after such six (6) month initial period of Permanent
Disability pay the thirty-six (36) months obligation as
provided in this subparagraph.
3.2.2 By the Employee:
(a) For Cause, with no prior notice except as
provided in Section 1.5.2, in which event the Employer shall
be required to continue to meet its obligations to the
Employee under Section 4 for a period of thirty-six (36)
months following termination; or
(b) Without Cause or upon the Permanent Disability of
Employee, provided that (i) the Employee shall give the
Employer sixty (60) days' prior written notice of his intent
to terminate Without Cause, in which event the Employer shall
have no further obligation to the Employee except future
payment of any amounts due and owing under Section 4 on the
effective date of the termination, and (ii) in the event that
the Employee's termination is as a result of the Permanent
Disability of the Employee, Employee shall receive
remuneration as provided in Section 3.2.1(b) above.
3.2.3 By the Employee within thirteen (13) months following a
Change in Control of the Employer, provided that the Employee
shall give written notice to the Employer of his intention to
terminate this Agreement, in which event the Employer shall be
required to continue to meet its obligations to Employee under
Section 4 for a period of thirty-six (36) months after
termination.
3.2.4 At any time upon mutual, written agreement of the
parties, in which event the Employer shall have no further
obligation to the Employee except for the payment of any
amounts due and owing under Section 4 on the effective date of
termination unless otherwise set forth in the written
agreement.
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3.2.5 Notwithstanding anything in this Agreement to the
contrary, the term of employment shall end automatically upon
the Employee's death, in which event the Employer shall have
no further obligation to the Employee except for the payment
of any amounts due and owing under Section 4 on the effective
date of termination.
3.3 Effect of Termination. Termination of the employment of the
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Employee pursuant to Section 3.2 shall be without prejudice to any right or
claim which may have previously accrued to either the Employer or the Employee
hereunder and shall not terminate, alter, supersede or otherwise affect the
terms and covenants and the rights and duties prescribed in this Agreement.
4. Compensation. The Employee shall receive the following salary and benefits:
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4.1 Base Salary. During the Initial Term, the Employee shall be
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compensated at a base rate of $160,000.00 per annum (the "Base Salary"). The
Employee's salary shall be reviewed by the Board at least annually, and the
Employee shall be entitled to receive such amount as may be determined by the
Board. Such salary shall be payable in accordance with the Employer's normal
payroll practices.
4.2 Specific Individual Benefits. The Employee shall receive as a
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specific individual benefit an automobile allowance in the amount of Five
Hundred and 00/100 ($500.00) per month.
4.3 Incentive Compensation. The Employee shall be entitled to
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participate in such bonus, incentive and other executive compensation programs
as are made available to senior management of the Employer from time to time
(the "Incentive Compensation").
4.4 Benefits.
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(a) In addition to the Base Salary, Specific
Individual Benefits, and Incentive Compensation, the Employee
shall be entitled to such benefits as may be available from
time to time for executives of the Employer similarly
situated to the Employee. All such benefits shall be awarded
and administered in accordance with the Employer'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
Page 6
and such other benefits as the Employer deems appropriate.
(b) The Employer specifically agrees to reimburse the
Employee for reasonable business expenses incurred by him in
performance of his duties hereunder, as approved from time to
time by the Board; provided that the Employee 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 in
sufficient detail to comply with rules and regulations
promulgated by the Internal Revenue Service.
(c) On a non-cumulative basis the Employee shall be
entitled to Four (4) weeks of vacation in each year of this
Agreement, during which his compensation shall be paid in
full. Employer and Employee shall attempt to arrange the
vacation period so that at least two consecutive weeks of
vacation each year are taken by the Employee, with the other
Vacation to be taken at the time the Employer determines
appropriate.
4.4 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. Employer Information.
5.1 Ownership of Information. All Employer Information received or
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developed by the Employee while employed by the Employer will remain the sole
and exclusive property of the Employer.
5.2 Obligations of Employee. Employee agrees (a) to hold Employer
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Information in strictest confidence, and (b) not to use, duplicate, reproduce,
distribute, disclose or otherwise disseminate Employer Information or any
physical embodiments thereof and may in no event take any action causing or fail
to take any action necessary in order to prevent any Employer Information from
losing its character or ceasing to qualify as Confidential Information or a
Trade Secret. In the event that Employee is required by law to disclose any
Employer Information, Employee will not make such disclosure unless (and then
only to the extent that) Employee 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 Employer when Employee becomes aware that such disclosure has
been requested and is required by law. This Section 5 shall survive for a period
of two (2) years following termination of this Agreement with respect to
Confidential Information, and shall survive termination of this Agreement for so
long as is permitted
Page 7
by the then-current Georgia Trade Secrets Act of 1990, O.C.G.A.
(SS 10-1-760-10-1-767, with respect to Trade Secrets.
5.3 Delivery upon Request or Termination. Upon request by the Employer,
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and in any event upon termination of his employment with the Employer, the
Employee will promptly deliver to the Employer all property belonging to the
Employer, including without limitation all Employer Information then in his
possession or control.
6. Non-Competition. The Employee agrees that during his employment by the
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Employer hereunder and, in the event of his termination other than by the
Employee for Cause pursuant to Section 3.2.2(a), for a period of two (2) years
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, in the capacity which involves the duties and responsibilities
undertaken by the Employee for the Employer, 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 Employee agrees that during his employment
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by the Employer hereunder and, in the event of his termination other than by the
Employee for Cause pursuant to Section 3.2.2(a), 3.2.3, or 3.2.4 for a period of
two (2) years 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, directly or by assisting others, any business
from any of the Employer's customers, including actively sought prospective
customers, with whom the Employee has or had material contact during the last
one (1) year of his employment, for purposes of providing products or services
that are competitive with those provided by the Employer.
8. Non-Solicitation of Employees. The Employee agrees that during his employment
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by the Employer hereunder and, in the event of his termination other than by the
Employee for Cause pursuant to Section 3.2.2(a), for a period of two (2) years
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, directly or by assisting others, any person then an
employee of the Employer or its Affiliates with whom Employee has had
interaction, whether or not such employee is a full-time employee or a temporary
employee of the Employer or its Affiliates 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.
9. Remedies. The Employee agrees that the covenants contained in Sections 5
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through 8 of this Agreement are of the essence of this Agreement; that each of
the covenants is reasonable and necessary
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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 Employee 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 Employee agree that all remedies available to the Employer
or the Employee, as applicable, shall be cumulative.
10. Severability. The parties agree that each of the provisions included in this
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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 provisions shall be
redrawn to make the provision consistent with and valid and enforceable under
the law or public policy.
11. No Set-Off by Employee. The existence of any claim, demand, action or cause
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of action by the Employee 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 under
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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, facsimile transmission or overnight courier, in which event the notice
shall be deemed effective when delivered or transmitted. All notices and other
communications under this Agreement shall be given to the parties hereto at the
following address:
(i) If to the Employer, to it at:
First Citizens Corporation
P. O. Drawer 400
Newnan, Georgia 30264
Attention: X. Xxxxxxxxx Xxxxxx, Jr., Chairman
Phone: (000) 000-0000
Facsimile: (000) 000-0000
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(i) If to the Employee, to him at:
Xxx Xxxx
0 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
13. Assignment. Neither party hereto may assign or delegate this Agreement or
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any of its rights and obligations hereunder without the written consent of the
other party hereto.
14. Waiver. A waiver by the Employer of any breach of this Agreement by the
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Employee 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. Attorneys' Fees. In the event of litigation between the parties concerning
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this Agreement, 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.
16. Applicable Law. This Agreement shall be construed and enforced under and in
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accordance with the laws of the State of Georgia. The parties agree that any
appropriate state court located in Xxxxxxx or Coweta County, Georgia, shall have
jurisdiction of any case or controversy arising under or in connection with this
Agreement and shall be a proper forum in which to adjudicate such case or
controversy. The parties consent to the jurisdiction of such courts.
17. 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.
18. Entire Agreement. This Agreement embodies the entire and final agreement of
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the parties on the subject matter stated in the Agreement. No amendment or
modification of this Agreement shall be valid or binding upon the Employer or
the Employee 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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19. Rights of Third Parties. Nothing herein expressed is intended to or shall be
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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.
20. Survival. The obligations of the Employee pursuant to Sections, 5, 6, 7, 8
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and 9 shall survive the termination of the employment of the Employee hereunder
for the period designated under each of those respective sections.
21. Joint and Several. The obligation of the Bank and the Employer to Employee
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hereunder shall be joint and several.
IN WITNESS WHEREOF, the Employer and the Employee have executed and
delivered this Agreement as of the date first shown above.
THE EMPLOYER:
FIRST CITIZENS CORPORATION
By: (Signature of X. Xxxxxxxxx Xxxxxx, Jr.)
Name: X. Xxxxxxxxx Xxxxxx, Jr.
Title: Chairman
THE EMPLOYEE:
(Signature of Xxx Xxxx)
Xxx Xxxx
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Exhibit A
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Initial Duties of the Employee
The initial duties of the Employee shall include, in addition to any other
duties assigned the Employee by the Board of Directors of the Bank or the
Employer or their respective designees, the following:
# Xxxxxx a corporate culture of the Bank and the Employer that
promotes ethical practices, encourages individual integrity,
fulfills social responsibility, and is conducive to
attracting, retaining and motivating a diverse group to
top-quality employees at all levels.
# Work with the Employer's Board of Directors to develop a
long-term strategy for the Employer and the Banks that creates
shareholder value.
# Develop and recommend to the Employer's Board annual business
plans and budgets that support the Employer's long-term
strategy.
# Manage the day-to-day business affairs of the Bank and the
Employer appropriately.
# Use best efforts to achieve the Bank's and the Employer's
financial and operating goals and objectives.
# Improve the quality and value of the products and services
provided by the Bank and the Employer.
# Ensure that the Bank maintains a satisfactory competitive
position within its industry.
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# Develop an effective management team and an active plan for
its development and succession, and make recommendations to
the Employer's Board regarding hiring, firing and
compensation.
# Implement major corporate policies.
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