EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is hereby entered into by and
between X. X. XXXXXX, III, a resident of the State of Georgia (the "Executive")
and WEST GEORGIA NATIONAL BANK, a national banking association (the "Bank") and
the Bank's sole shareholder, WGNB CORP., a Georgia bank holding company
("WGNB").
WHEREAS, the Executive is currently employed by the Bank and WGNB and his
current employment contract shall expire as of August 11, 2005; and
WHEREAS, the Bank, WGNB and the Executive desire to enter into a new
written agreement to replace his current employment agreement and document the
complete terms and conditions pursuant to which the Executive shall continue to
be employed by WGNB and the Bank; and
WHEREAS, the Bank, WGNB and the Executive intend that this Agreement will
supersede any and all previous oral or written employment agreements between
WGNB, the Bank and the Executive;
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1.
DEFINITIONS
As used in this Agreement, the following words and/or phrases shall have
the meanings set forth below unless a different meaning plainly is required by
the context:
1.1 Agreement shall mean this Employment Agreement between the Bank, WGNB
and the Executive.
1.2 Affiliate shall mean any parent, brother-sister or subsidiary
corporation of the Bank or WGNB, any joint venture in which the Bank or WGNB
owns at least a 50 percent interest, and any partnership, limited liability
partnership or limited liability corporation in which the Bank or WGNB or any of
its wholly-owned subsidiaries owns at least a 50 percent interest.
1.3 Bank shall mean West Georgia National Bank, a national banking
association.
1.4 Base Salary shall mean the annual base compensation paid to the
Executive as provided in Section 3.1.
1.5 Board shall mean the Board of Directors of WGNB and/or the Bank.
-1-
1.6 Business of the Bank shall mean any and all operations incident to the
business of banking.
1.7 Business Opportunities shall mean any specialized information or plans
of WGNB and/or the Bank concerning the business of WGNB and/or the Bank,
including but not limited to, the financing of or investment in any target
person or business, or the availability of any such business, by WGNB and/or the
Bank, together with all related information concerning the specifics of any
contemplated acquisition, purchase or investment (including price, terms, and
the identity of such business) regardless of whether WGNB or the Bank has
entered any agreement, made any commitment, or issued any bid or offer to such
business.
1.8 Cause shall mean (i) the Executive's willful failure to perform his
material duties and responsibilities; (ii) the Executive's unlawful or willful
misconduct which is economically injurious to WGNB or the Bank or to any entity
in control of, controlled by or under common control with WGNB, the Bank and its
successors; (iii) the Executive's conviction of, or a plea of guilty or nolo
contendere, to a felony charge; (iv) habitual drug or alcohol abuse that impairs
the Executive's ability to perform the essential duties of his position; (v) the
initiation of suspension or removal proceedings against the Executive by federal
or state regulatory authorities acting under lawful authority; (vi) the
Executive's willful disclosure to unauthorized persons of Confidential
Information or Trade Secrets of WGNB or the Bank; or (vii) the Executive's
failure to comply with the Code of Ethics or other personnel policies of WGNB
and/or the Bank.
1.9 Change in Control shall mean the occurrence of any one of the
following events:
(i) Change in Ownership. A change in the ownership of WGNB or the
Bank (each being individually referred to in this Section as a
"Corporation") that occurs on the date that any one person, or more than
one person acting as a group, acquires ownership of stock of a Corporation
that, together with stock held by such person or group, constitutes more
than fifty percent (50%) of the total fair market value or total voting
power of the stock of such Corporation. However, if any one person or more
than one person acting as a group is considered to own more than fifty
percent (50%) of the total fair market value or total voting power of the
stock of a Corporation, the acquisition of additional stock by the same
person or persons is not considered to cause a change in the ownership of
such Corporation (or to cause a change in the effective control of such
Corporation (within the meaning of subsection (ii) herein). An increase in
the percentage of stock owned by any one person, or persons acting as a
group, as a result of a transaction in which a Corporation acquires its
stock in exchange for property will be treated as an acquisition of stock
for purposes of this section. This applies only when there is a transfer
of stock of a Corporation (or issuance of stock of a Corporation) and
stock in such Corporation remains outstanding after the transaction.
(ii) Change in Effective Control. A change in the effective control
of a Corporation that occurs on the date that either:
(A) Any one person, or more than one person acting as a group,
acquires (or has acquired during the 12-month period ending on the date of
the most recent acquisition by such person or persons) ownership of stock
of such Corporation possessing 35 percent or more of the total voting
power of the stock of such Corporation; or
(B) a majority of members of the Board is replaced during any
12-month period by directors whose appointment or election is not endorsed
by a majority of the members of the Board prior to the date of the
appointment or election.
-2-
(iii) Change in Ownership of a Substantial Portion of Assets. A
change in the ownership of a substantial portion of a Corporation's assets
shall occur on the date that any one person, or more than one person
acting as a group, acquires (or has acquired during the 12-month period
ending on the date of the most recent acquisition by such person or
persons) assets from such Corporation that have a total gross fair market
value equal to or more than 40 percent of the total gross fair market
value of all of the assets of such Corporation immediately prior to such
acquisition or acquisitions. For this purpose, gross fair market value
means the value of the assets of the Corporation, or the value of the
assets being disposed of, determined without regard to any liabilities
associated with such assets.
In determining whether a Change in Control has occurred, the following rules
shall apply:
(A) Stock Attribution Rules. For purposes of this section, Code Section
318(a) applies to determine stock ownership. Stock underlying a vested option is
considered owned by the individual who holds the vested option (and the stock
underlying an unvested option is not considered owned by the individual who
holds the unvested option). For purposes of the preceding sentence, however, if
a vested option is exercisable for stock that is not substantially vested (as
defined by Treasury Regulation Sections 1.83-3(b) and (j)), the stock underlying
the option is not treated as owned by the individual who holds the option. In
addition, mutual and cooperative corporations are treated as having stock for
purposes of this subsection.
(B) Persons Acting as a Group. For purposes of this section, persons will
not be considered to be acting as a group solely because they purchase or own
stock of the same Corporation at the same time or as a result of the same public
offering. However, persons will be considered to be acting as a group if they
are owners of a corporation that enters into a merger, consolidation, purchase
or acquisition of stock, or similar business transaction with one of the
Corporations. If a person, including an entity, owns stock in both corporations
that enter into a merger, consolidation, purchase or acquisition of stock, or
similar transaction, such shareholder is considered to be acting as a group with
other shareholders in a corporation prior to the transaction giving rise to the
change and not with respect to the ownership interest in the other corporation.
(C) Transfers to a Related Person. There is no Change in Control event
with respect to subsection (iii) when there is a transfer by a Corporation to an
entity that is controlled by the shareholders of the transferring Corporation
immediately after the transfer. A transfer of assets by a Corporation is not
treated as a change in the ownership of such assets if the assets are
transferred to:
(1) A shareholder of the Corporation (immediately before the asset
transfer) in exchange for or with respect to its stock;
(2) An entity, 50 percent or more of the total value or voting power
of which is owned, directly or indirectly, by the Corporation;
(3) A person, or more than one person acting as a group, that owns,
directly or indirectly, 50 percent or more of the total value or voting power of
all the outstanding stock of the Corporation; or
(4) An entity, at least 50 percent of the total value or voting
power of which is owned, directly or indirectly, by a person described in
subsection (3).
For purposes of this subsection (C) and except as otherwise provided, a person's
status is determined immediately after the transfer of the assets. For example,
a transfer to a corporation in which the transferor Corporation has no ownership
interest before the transaction, but which is a majority owned
-3-
subsidiary of the transferor Corporation after the transaction is not treated as
a change in the ownership of the assets of the transferor Corporation.
1.10 Code shall mean the Internal Revenue Code of 1986, as amended.
1.11 Committee shall mean the Executive Compensation and Management
Succession Committee of the Board, or such other committee to which the Board
delegates authority regarding executive compensation.
1.12 Confidential Information shall mean, other than Trade Secrets, any
data or information, which is material to the Bank and/or WGNB and not generally
known by the public. Confidential Information shall include, but not be limited
to, the taking of deposits, making loans and extensions of credit, cashing
checks, and other Business of the Bank; any information pertaining to the
identity of customers, depositors, or borrowers served by the Bank; Business
Opportunities of the Bank; the details of this Agreement; WGNB's and the Bank's
business, marketing and acquisition plans and financial statements and
projections; and the costs of the services the Bank may offer or provide to the
customers, depositors or borrowers it serves; to the extent such information is
material to WGNB and the Bank and not generally known to the public.
1.13 Disability means the Executive's eligibility to receive income
replacement benefits for a period of not less than three (3) months under an
accident and health plan covering employees of WGNB or the Bank due to a
medically-determinable physical or mental impairment, or if no such plan is
applicable, the Executive's inability to engage in any substantial gainful
activity due to a medically-determinable physical or mental impairment, which
can be expected to result in death or can be expected to last for a continuous
period of not less than twelve (12) months.
1.14 Effective Date shall mean August 8, 2005.
1.15 ERISA shall mean the Employee Retirement Income Security Act of 1974,
as amended.
1.16 Executive shall mean X. X. Xxxxxx, III.
1.17 Good Reason shall mean:
(a) A reduction of the Executive's Base Salary unless substantially
similar reductions are applicable to other senior officers of the Bank; or
(b) Without the express written agreement of the Executive, any
assignment or change in duties that would require the relocation of the
Executive's work place to a location that is either (i) more than fifty
(50) miles from the Executive's work place immediately prior to such
assignment; provided however, the relocation of the Executive's work place
must also increase the regular commute distance between the Executive's
residence and work place by more than fifty (50) miles (one-way); or (ii)
inside the Interstate 285 perimeter around Atlanta, Georgia; or
(c) The assignment to the Executive of any duties inconsistent with
the Executive's position (including offices and reporting relationships),
authority, duties or responsibilities as contemplated by this Agreement,
or any other action by WGNB or the Bank which results in a diminution in
such position, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not taken in bad
faith and which is remedied by the Bank or WGNB promptly after receipt of
notice thereof given by the Executive; or
-4-
(d) Any failure by WGNB or the Bank to comply with any of the
provisions of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by
the Bank or WGNB promptly after receipt of notice thereof given by the
Executive; or
(e) Any failure of the Bank to pay Base Salary, a Bonus (as defined
in Section 3.2), or a Profit Sharing Bonus (as defined in Section 3.2),
but only to the extent that such Base Salary, Executive Bonus, or Profit
Sharing Bonus has in fact become due and payable in accordance with the
terms of the applicable bonus plan or program or this Agreement; or
(f) After the date of a Change in Control, any material reduction by
WGNB or the Bank in the basis and/or level of the plans, programs,
policies and practices, and benefits, that are described in this Agreement
and that were maintained and/or provided during the ninety (90) day period
immediately preceding the date of the Change in Control.
For purposes of this Agreement, if the Executive's title with WGNB
is altered, such alteration or change alone shall not constitute Good Reason.
1.18 Term shall mean the period during which this Agreement is wholly
effective, as more fully described in Section 2.4.
1.19 Termination Date shall mean the last day of actual employment of the
Executive by WGNB or the Bank.
1.20 Trade Secret shall mean the whole or any portion or phase of any
scientific or technical information, design, process, procedure, formula or
improvement of WGNB or the Bank that is valuable and secret (in the sense that
it is not generally known to competitors of WGNB and the Bank) and any
information that meets the definition of "trade secret" under the Georgia Trade
Secrets Act of 1990, O.C.G.A. Section 10-1-760 through Section 10-1-767.
1.21 WGNB shall mean WGNB Corp., a Georgia bank holding company.
2.
DUTIES AND AUTHORITY
2.1 Duties and Authority. The Executive is engaged and agrees to perform
services for and on behalf of the Bank as its President and for and on behalf of
WGNB as an Executive Vice President and shall report directly to the Chief
Executive Officer of WGNB and the Bank. The Executive shall have such duties and
authority as customarily performed by persons acting in such capacities or as
may be assigned to him by the Bank's bylaws or by the Chief Executive Officer.
The Executive agrees to perform such duties diligently and efficiently and in
accordance with the reasonable directions of the Chief Executive Officer. The
Executive shall conduct himself at all times in a business-like and professional
manner as appropriate for his position and shall represent WGNB and the Bank in
all respects in compliance with good business and ethical practices. In
addition, the Executive shall be subject to and abide by the policies and
procedures of the Bank applicable to personnel of WGNB and the Bank, as may be
adopted from time to time.
2.2 Best Efforts. During the term of this Agreement, the Executive shall
devote his full attention, energies and best efforts to rendering services on
behalf of the Bank (or subsidiaries or Affiliates thereof), and shall not engage
in any outside employment without the express written consent of
-5-
the Board. Notwithstanding the foregoing, the Executive is not prohibited from
investing or trading in stocks, bonds, commodities or other forms of investment,
including real property, so long as the Executive does not (i) own more than two
percent (2%) of the outstanding ownership interest of an entity, and (ii)
"participate" (within the meaning of Treas. Reg. Sections 1.469-5(f) and
1.469-5T(f), as in effect as of the date this Agreement is executed) in such
investments, unless such investment is approved by the Board or the Executive
Committee of the Board in advance and shown on Exhibit "B" hereto.
2.3 Outside Activities. The Executive may pursue personal interests so
long as such participation does not interfere with the Executive's performance
of his duties hereunder, and the Executive may participate in industry, civic
and charitable activities so long as such activities do not materially interfere
with the performance of his duties hereunder. The Executive may also participate
in any interest or activity which is approved in writing by the Chief Executive
Officer of WGNB and the Bank. At least once each year during the term of this
Agreement, and at any time upon the Chief Executive Officer's request, the
Executive shall provide a full disclosure to the Chief Executive Officer of his
participation in any industry, civic and charitable activities (including
service on corporate or charitable boards of directors or trustees). Prior to
pursuing or accepting any activity other than those in which he is engaged on
the Effective Date, the Executive agrees to discuss such activity with the Chief
Executive Officer.
2.4 Term. The Term of this Agreement shall be the period during which this
Agreement (including any amendments and/or extensions of this Agreement) remains
effective. The initial Term of this Agreement shall commence on the execution
date hereof and shall continue until the close of business on the last day of
the three-year period after the Effective Date hereof, subject to earlier
termination as provided in this Agreement. At least ninety (90) days prior to
the end of the initial Term hereof and each subsequent Term period thereafter,
this Agreement shall be deemed to be extended automatically for an additional
three-year Term on the same terms and conditions, unless either the Bank or the
Executive provides a written notice of nonrenewal to the other party no less
than ninety (90) days prior to the date on which this Agreement would otherwise
be extended.
3.
COMPENSATION AND BENEFITS
3.1 Annual Base Salary. The Bank shall pay to the Executive as
compensation for his services provided hereunder a base salary of $155,000 per
year ("Base Salary"), payable in accordance with the Bank's normal payroll
procedures. The Committee shall review the Executive's Base Salary annually, and
in its sole discretion, subject to approval of the Board, may increase the
Executive's Base Salary from year to year. The Committee shall not decrease the
amount of the Executive's Base Salary unless substantially similar decreases are
applicable to other senior officers of the Bank or WGNB. The annual review of
the Executive's salary by the Committee will consider, among other things, the
Executive's own performance as well as the Bank's performance.
3.2 Annual Incentive Compensation. The Executive shall be eligible to
participate in any annual short-term incentive compensation program that the
Committee and/or the Board shall approve for him for any particular year or
period (the "Bonus"). In addition, the Executive shall be eligible to
participate in the annual profit sharing bonus program that is available to all
employees of the Bank (the "Profit Sharing Bonus").
3.3 Long-Term Incentive Compensation. The Executive shall be eligible to
participate in any long-term incentive compensation program and/or equity-based
compensation program that the Committee and/or the Board shall approve for him
for any particular year or period.
-6-
Any grants or awards of equity-based compensation shall be governed by the terms
and conditions of the plan or plans under which such grants are made.
3.4 Employee Benefit Plans and Policies. The Executive shall be entitled
to participate in each employee benefit plan, policy or arrangement which is
sponsored, maintained or contributed to by the Bank and in which current
similarly-situated officers of the Bank may participate, in accordance with the
terms and provisions of such plans and on the same terms and conditions as other
similarly-situated officers of the Bank. Contributions by the Executive to such
plans shall be required only to the extent required of other similarly-situated
officers of the Bank.
3.5 Automobile Allowance. The Bank shall provide the Executive with a
monthly cash allowance for the purpose of reimbursement of expenses related to
the use of his personal automobile for business purposes, pursuant to a policy
determined at the discretion of the Committee. Unless otherwise determined by
the Committee and specified in its policy, the Executive shall be solely
responsible for all costs and liabilities related to such automobile, including
but not limited to lease and/or purchase payments, insurance, maintenance,
gasoline/oil and repair costs.
3.6 Club Dues. For general business purposes (and not as compensation to
the Executive), the Bank shall pay the Executive's periodic dues for membership
in various civic clubs and other organizations as approved by the Committee.
3.7 Expense Reimbursement. The Bank shall reimburse the Executive for
reasonable and necessary travel and other business related expenses incurred by
him in performance of the business of the Bank in accordance with the Bank's
standard expense reimbursement practices and policies in existence from time to
time, subject to such dollar limitations, verification and record keeping
requirements as may be established from time to time by the Bank.
3.8 Withholding, FICA, FUTA, Etc. Any amount to be paid to the Executive
under the provisions of this Agreement for his services rendered as an employee
and which represents taxable income to him shall be subject to, and reduced by,
withholding for any applicable federal, state or local taxes imposed by law,
including, but not limited to, employment taxes imposed under Subtitle C of the
Code.
4.
RESTRICTIVE COVENANTS
4.1 Confidentiality. In Executive's position as an employee of WGNB and
the Bank, the Executive has had and will have access to Confidential
Information, Trade Secrets and other proprietary information of vital importance
to WGNB and the Bank and has and will also develop relationships with customers,
employees and others who deal with the Bank which are of value to the Bank and
WGNB. WGNB and the Bank requires as a condition of Executive's employment that
Executive agree to certain restrictions on Executive's use of the proprietary
information and valuable relationships developed during Executive's employment
with WGNB and the Bank. WGNB, the Bank and the Executive therefore agree and
acknowledge that WGNB and the Bank may entrust the Executive with highly
sensitive confidential, restricted and proprietary information concerning
various Business Opportunities, customer lists, and personnel matters. The
Executive acknowledges that he shall bear a fiduciary responsibility to WGNB and
the Bank to protect such information from use or disclosure that is not
necessary for the performance of Executive's duties hereunder, as an essential
incident of the Executive's employment with WGNB and the Bank.
-7-
4.2 Exclusions. Notwithstanding the definitions of Trade Secrets,
Confidential Information and Business Opportunities set forth in Section 1,
Trade Secrets, Confidential Information and Business Opportunities shall not
include any information that:
(a) is or becomes generally known to the public;
(b) is developed by Executive after termination of employment
through entirely independent efforts;
(c) the Executive obtains from an independent source having a bona
fide right to use and disclose such information;
(d) is required to be disclosed by law, except to the extent
eligible for special treatment under an appropriate protective order; or
(e) the Bank or WGNB approves for unrestricted release by express
written authorization.
4.3 New Developments. Any discovery, invention, process or improvement
made or discovered by the Executive during the term of this Agreement in
connection with or in any way affecting or relating to the business of WGNB or
the Bank or any of its Affiliates (as then carried on or under active
consideration) shall forthwith be disclosed to WGNB and/or the Bank and shall
belong to and be the absolute property of WGNB and the Bank. The preceding
sentence does not apply to any invention for which no equipment, supplies,
facility or trade secret information of WGNB or the Bank was used and which was
developed entirely on the Executive's own time, unless the invention relates
directly to the business of the Bank or WGNB or its Affiliates or to its or
their actual or demonstrably anticipated research or development, or the
invention results from any work performed by the Executive for the Bank.
4.4 Security Measures. During the Executive's employment with WGNB and the
Bank, the Executive is required to observe all security measures adopted to
protect Trade Secrets, Confidential Information and Business Opportunities of
WGNB and the Bank.
4.5 Use and Return of Documents and Property. The Executive acknowledges
that in the course of his employment with WGNB and the Bank, he will have the
opportunity to inspect and use certain property, both tangible and intangible,
of WGNB and the Bank and its Affiliates. All such property shall remain the
exclusive property of WGNB, the Bank and its Affiliates, and the Executive has
and shall have no right or interest in such property. The Executive shall use
WGNB's and the Bank's property only during employment and only in the
performance of his job and to further WGNB's and the Bank's interests, and he
will not remove such property from the Bank's premises except to the extent
necessary to perform his duties and to the extent approved by the Bank and/or
WGNB, either expressly or generally under its policies. Upon the request of WGNB
or the Bank, and, in any event, promptly upon the Executive's Termination Date,
the Executive shall return to the Bank all of the Bank's and WGNB's memoranda,
notes, records, data, books, manuals, computer programs, audio-visual materials,
correspondence, lists, every piece of information recorded in any form,
including all copies of such materials, and all other tangible property.
4.6 Nonsolicitation of Customers, Borrowers or Depositors. The Executive
agrees that during the term of his employment with the Bank, he will not,
directly or indirectly, without the Bank's prior written consent, contact any
customer, depositor or borrower of the Bank or any of its Affiliates for
-8-
business purposes unrelated to furthering the Business of the Bank. Executive
further agrees that for a period of twenty-four (24) months following his
Termination Date, he will not directly or indirectly, (i) contact, solicit or
divert, or attempt to contact, solicit, divert or take away, any customer,
depositor or borrower of the Bank or its Affiliates for purposes of, or with
respect to, providing such customer, depositor or borrower services which
constitute the Business of the Bank; or (ii) take any affirmative action with a
customer, depositor or borrower of the Bank or its Affiliates for the purposes
of providing a customer, depositor or borrower to a business competing with the
Bank or its Affiliates. The prohibitions of the preceding sentence shall apply
only to customers, depositors or borrowers of the Bank with whom the Executive
had Material Contact during his term of employment. For purposes of this
Agreement, the Executive had "Material Contact" with a customer, depositor or
borrower if (a) he had business dealings with the customer, depositor or
borrower on the Bank's behalf; (b) he was responsible for supervising or
coordinating the dealings between the Bank and the customer, depositor or
borrower; or (c) he obtained Confidential Information about the customer,
depositor or borrower as a result of his association with the Bank.
4.7 Nonsolicitation of Employees. The Executive agrees that during his
employment with the Bank and for twenty-four (24) months after his Termination
Date, the Executive will not, directly or indirectly, solicit or attempt to
recruit or hire any employee of WGNB or the Bank or its Affiliates to provide
services similar to those performed by the employee for WGNB or the Bank on
behalf of another entity or person.
4.8 Nondisclosure of Trade Secrets. Except to the extent reasonably
necessary for the Executive to perform his duties for WGNB and the Bank, the
Executive shall not, directly or indirectly, furnish or disclose to any person,
use in any way, or negligently permit any unauthorized person who is not an
employee of the Bank to use, disclose or gain access to any Trade Secrets of
WGNB or the Bank or its Affiliates, or any other person or entity making Trade
Secrets available for the Bank's use, for so long as such Trade Secrets remain
"trade secrets" under applicable state law.
4.9 Nondisclosure of Confidential Information. During the term of his
employment with WGNB and the Bank and for a period of three (3) years following
the Executive's Termination Date, except to the extent reasonably necessary for
the Executive to perform his duties for WGNB and the Bank, the Executive shall
not, without the prior written consent of WGNB and the Bank, directly or
indirectly, furnish or disclose to any person, use in any way, or negligently
permit any unauthorized person who is not employed by the Bank or WGNB to use,
disclose or gain access to, for personal benefit or the benefit of others, any
Confidential Information of WGNB or the Bank or its Affiliates, which remains
competitively sensitive.
4.10 Covenant Not to Compete.
(a) Territories: WGNB transacts business as a bank holding company
with the Bank as its subsidiary bank which accepts deposits, makes loans,
cashes checks and otherwise engages in the business of banking ("Business
of the Bank"). WGNB and the Bank do business in the counties of Xxxxxxx,
Xxxxxxx, Paulding and Haralson in the State of Georgia, and Executive
performs the duties described in Section 2.1 throughout those counties.
Executive has established business relationships and performs the duties
described in Section 2.1 in the geographic area covered by the counties of
Xxxxxxx, Xxxxxxx, Paulding and Haralson in the State of Georgia.
(b) Covenants: For a period of twenty-four (24) months after the
termination of his employment with the Bank, Executive shall not directly
or indirectly provide the duties described in Section 2.1 of this
Agreement (including as an advisor, consultant, or independent contractor)
-9-
for any entity or person conducting the Business of the Bank within the
counties of Xxxxxxx, Xxxxxxx, Paulding and Haralson in the State of
Georgia.
4.11 Notification of Subsequent Employment. During a period of one (1)
year after the termination of the Executive's employment with WGNB and the Bank,
Executive shall notify the Bank in writing of the name and address of the
Executive's new employer and the Executive's functions with his new employer
within thirty (30) days after accepting employment with any other corporation,
partnership, association, person, organization or other entity.
4.12 Reasonableness. Executive has carefully considered the nature and
extent of the restrictions upon his rights and the rights and remedies conferred
on the Bank under this Agreement, and the Executive hereby acknowledges and
agrees that:
(a) the restrictions and covenants contained herein, and the rights
and remedies conferred upon WGNB and the Bank, are necessary to protect
the goodwill and other value of the business of WGNB and the Bank;
(b) the restrictions placed upon the Executive hereunder are fair
and reasonable in time, will not prevent him from earning a livelihood,
and place no greater restraint upon the Executive than is reasonably
necessary to secure the business and goodwill of WGNB and the Bank;
(c) WGNB and the Bank are relying upon the restrictions and
covenants contained herein in continuing to make available to the
Executive information concerning the Business of the Bank and WGNB;
(d) Executive's employment hereunder places him in a position of
confidence and trust with WGNB and the Bank and its employees, customers,
depositors and borrowers; and
(e) the provisions of this section shall be interpreted so as to
protect the Confidential Information, and to secure for WGNB and the Bank
the exclusive benefits of the work performed on behalf of WGNB and the
Bank by the Executive under this Agreement, and not to unreasonably limit
his ability to engage in employment and consulting activities in
noncompetitive areas which do not endanger WGNB's and the Bank's
legitimate interests expressed in this Agreement.
4.13 Remedy for Breach. Executive acknowledges and agrees that his breach
of any of the covenants contained in this Article of this Agreement will cause
irreparable injury to WGNB and the Bank and that remedies at law available to
WGNB and the Bank for any actual or threatened breach by the Executive of such
covenants will be inadequate and that WGNB and the Bank shall be entitled to
specific performance of the covenants in this Article or injunctive relief
against activities in violation of this Article by temporary or permanent
injunction or other appropriate judicial remedy, writ or order, without the
necessity or proving actual damages. This provision with respect to injunctive
relief shall not diminish the right of WGNB and the Bank to claim and recover
monetary damages against the Executive for any breach of this Agreement, in
addition to injunctive relief. The Executive acknowledges and agrees that the
covenants contained in this Article shall be construed as agreements independent
of any other provision of this or any other contract between the parties hereto,
and that the existence of any claim or cause of action by the Executive against
WGNB or the Bank, whether predicated upon this or any other contract, shall not
constitute a defense to the enforcement by WGNB and the Bank of said covenants.
-10-
5.
TERMINATION OF EMPLOYMENT
5.1 Termination by WGNB or the Bank for Cause. During the Term of this
Agreement, WGNB or the Bank may terminate the Executive's employment for Cause,
effective immediately upon written notice to the Executive. Upon such a
termination for Cause, the Executive shall be entitled to any accrued but unpaid
Base Salary, any earned but unpaid Bonus and Profit Sharing Bonus for the fiscal
year which ended prior to the Termination Date, any accrued but unused vacation,
and any unreimbursed expenses through the Termination Date. Executive shall not
be entitled to any other compensation, bonus, severance pay or post-termination
benefits, other than as required by law. Any outstanding equity-based
compensation grants or awards held by the Executive shall be governed by the
terms of the plan under which such grants or awards were made.
5.2 Termination by WGNB or the Bank Without Cause. During the Term of this
Agreement, WGNB or the Bank may terminate the Executive's employment for any
reason other than Cause, effective upon sixty (60) days' advance written notice
to the Executive. Upon such a termination, in addition to any earned but unpaid
Base Salary, any accrued but unused vacation, any earned but unpaid Bonus for
the fiscal year which ended prior to the Termination Date, any unpaid Profit
Sharing Bonus for the fiscal year which ended prior to the Termination Date, and
unreimbursed expenses through the Termination Date, the Executive shall be
entitled to:
(a) Severance Pay: Executive shall be entitled to severance pay in
the amount of the greater of (i) the Executive's Base Salary, target Bonus
and Profit Sharing Bonus for the remainder of the then Term of the
Agreement; or (ii) one and one half times the Executive's annual Base
Salary, target Bonus and Profit Sharing Bonus based on his current Base
Salary at the time of termination. The severance pay provided for in this
subsection shall be paid in a single sum cash payment made as soon as
administratively practicable following the Termination Date, but in no
event later than two and one-half (2-1/2) months after his Termination
Date; provided that such payment shall be contingent upon the Executive's
execution of a general release of all claims, as described in Section 5.7.
(b) Equity Compensation: Any outstanding equity-based compensation
grants or awards held by the Executive shall be governed by the terms of
the plans under which they were granted.
(c) Group Health Benefits: Regardless of whether the Executive or
his eligible qualified beneficiaries actually elect COBRA continuation
coverage under the Bank's group health plan, the Executive shall be
entitled to a lump-sum payment equal to the full COBRA premium amount
(determined as of the Termination Date) for eighteen (18) months of
continued group health plan coverage (as in place as of the Termination
Date) for the Executive, his spouse and eligible dependents. Such payment
shall be made as soon as administratively practicable following the
Executive's termination of employment, but in no event later than two and
one-half (2-1/2) months after the date his employment ends. In addition,
if the Executive or his eligible qualified beneficiaries have elected
COBRA continuation coverage under the Bank's group health plan and any one
of them becomes eligible for COBRA continuation coverage beyond the
initial 18-month period due to a second qualifying event, the Executive
shall be entitled to a lump-sum payment equal to the full COBRA premium
amount (determined as of the date of such second qualifying event) for the
additional period of continuation coverage (up to a maximum of an
additional 18 months of continuation coverage). This additional lump sum
payment for the second qualifying event coverage shall be made as soon as
administratively practicable following
-11-
the Executive's providing written notice to the Bank of the second
qualifying event, but no later than two and one-half (2-1/2) months after
the date of such second qualifying event.
The severance pay provided for herein shall be in lieu of any and all
other payments, bonuses or other compensation to which the Executive may
have been entitled under any severance plan, policy or payroll practice of
WGNB or the Bank.
5.3 Termination by Executive for Good Reason. The Executive may terminate
his employment for "Good Reason" upon sixty (60) days' prior written notice to
the Bank and WGNB; provided, however, that prior to delivering such 60-day
notice, the Executive has provided an advance written notice to WGNB or the Bank
that identifies the manner in which the Executive believes that he is eligible
for Good Reason termination, and WGNB and the Bank have had at least fifteen
(15) business days following delivery of the advance written notice to correct
the situation and have not done so. Upon a termination for Good Reason, the
Executive shall be entitled to severance pay identical to, and subject to the
same conditions applicable to, those provided in Section 5.2 above.
5.4 Termination of Agreement by Reason of Executive's Death or Disability.
This Agreement shall terminate immediately upon the termination of the
Executive's employment due to the death of the Executive or due to written
notice from WGNB or the Bank to the Executive if he shall at any time become
incapacitated by reason of a Disability. Upon the Executive's termination due to
death or Disability, the Executive, or his estate in the case of his death,
shall be entitled to any earned but unpaid Base Salary, any accrued but unused
vacation, any earned but unpaid Bonus and/or Profit Sharing Bonus for the fiscal
year which ended prior to the Termination Date, and unreimbursed expenses
through the Termination Date. The monies due under this Section 5.4 shall be
paid in a single-sum cash payment made as soon as administratively practicable
following the Termination Date, but in no event later than two and one-half
(2-1/2) months after the Termination Date. Upon the Executive's termination due
to death or Disability, any outstanding equity-based compensation grants or
awards held by the Executive shall be governed by the terms of the plans under
which such grants or awards were granted. WGNB and the Bank shall not have any
further obligations to the Executive, the Executive's estate, heirs or other
legal representatives.
5.5 Termination by Executive. Executive may terminate this Agreement and
his employment with the Bank and WGNB upon thirty (30) days' written notice to
each of the Bank and WGNB. Upon such a termination, the Executive shall be
entitled to any accrued but unpaid Base Salary, any accrued but unused vacation,
and any unreimbursed expenses through the Termination Date. Executive shall not
be entitled to any other compensation, bonus, severance pay or post-termination
benefits, other than as required by law. Any outstanding equity-based
compensation grants or awards held by the Executive shall be governed by the
terms of the plan under which such grants or awards were made.
5.6 Other Benefits After Termination Date. Except for the payments and
benefits, if any, provided under this Article 5, no other benefits, compensation
or other remuneration of any type, whether taxable or nontaxable, shall be
payable to the Executive after his Termination Date, except as required by law
or by the applicable terms and provisions of any employee benefit plan
applicable to the Executive.
5.7 General Release. The Executive agrees that in the event of any
termination of this Agreement that results in a payment pursuant to any
provision of this Section 5, prior to the payment, as a condition to the receipt
of and as consideration for such payment, the Executive (or if due to death, the
executor or administrator of his estate) shall sign a general release of any and
all claims that the Executive, his heirs and assigns and/or his estate may have
against WGNB or the Bank or its related parties related to his employment and
such payment in substantially the form attached hereto as Exhibit "A".
-12-
6.
CHANGE IN CONTROL
6.1 Upon Change in Control. If Executive is employed on the date a Change
in Control occurs or if the Executive's employment by the Bank or WGNB is
terminated for any reason other than Cause, Disability, death or voluntary quit
without Good Reason, during the twelve (12) month period immediately preceding
the date of the Change in Control, the Bank and WGNB agree to pay the Executive
an amount equal to:
(a) One times the Executive's annual Base Salary based on the
greater of (a) his Base Salary on the Termination Date (if applicable) or
(b) his Base Salary for the fiscal year immediately preceding the date of
the Change in Control; plus
(b) One times the amount of his Bonus and the Profit Sharing Bonus,
for the fiscal year which ended immediately preceding the earlier of (i)
his Termination Date (if applicable) or (b) the date of the Change in
Control.
The amounts provided for in this subsection shall be paid in a lump sum
cash payment within thirty (30) days after the date of the Change in
Control. The payment of any amount under this subsection is contingent
upon the Executive's execution of a general release as described in
Section 5.7.
(i) Equity Compensation: Any outstanding stock options,
restricted stock, stock appreciation rights, performance grants or other
equity-based compensation grants or awards held by the Executive on the
date of a Change in Control shall be governed by the terms of the plans
under which such grants or awards were made.
(c) Excess Parachute Payment. Notwithstanding anything herein to the
contrary, neither WGNB nor the Bank shall pay to the Executive any amount
which shall be deemed to constitute an "excess parachute payment" in
accordance with Code Section 280G. Either WGNB or the Bank shall reduce
any amount due hereunder by such minimum amount necessary to cause the
total amount payable to the Executive in the applicable year not to
constitute an "excess parachute payment."
7.
MISCELLANEOUS PROVISIONS
7.1 Invalidity of Any Provision. It is the intention of the parties hereto
that the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws of each state and jurisdiction in which such
enforcement is sought, but that the unenforceability (or the modification to
conform with such laws) of any provision hereof shall not render unenforceable
or impair the remainder of this Agreement which shall be deemed amended to
delete or modify, as necessary, the invalid or unenforceable provisions. The
parties further agree to alter the balance of this Agreement in order to render
the same valid and enforceable. The terms of the restrictive covenant provisions
of this Agreement shall be deemed modified to the extent necessary to be
enforceable and, specifically, without limiting the foregoing, if the term of
the applicable restrictive covenant is too long to be enforceable, it shall be
modified to encompass the longest term which is enforceable and, if the scope of
the geographic area of the applicable restrictive covenant is too great to be
enforceable, it shall be modified to encompass the greatest area that is
enforceable.
-13-
7.2 Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Georgia.
7.3 Waiver of Breach. The waiver of a breach of any provision of this
Agreement by a party hereto shall not operate or be construed as a wavier of any
subsequent breach by the other party hereto.
7.4 Successors and Assigns. This Agreement shall inure to the benefit of
the Bank and its Affiliates, and their respective successors and assigns. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
estate and/or legal representatives.
7.5 Assignment of Agreement. This Agreement may not be assigned by any of
the parties without the express written consent of the other parties to this
Agreement; provided, however, that the provisions of this Agreement shall inure
to the benefit of and be binding upon each successor of WGNB and/or the Bank,
whether by merger, consolidation, transfer of all or substantially all assets,
or otherwise.
7.6 Notices. All notices, demands and other communications hereunder shall
be in writing and shall be delivered in person or deposited in the United States
mail, certified or registered, with return receipt requested, as follows:
(a) If to the Executive: Xx. X. X. Xxxxxx, III
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
(b) If to the Bank: West Georgia National Bank
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chairman
With a copy to: Xx. Xxxxxxxx X. Xxxx
XxXxxxx Long & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
(c) If to WBNG: WGNB Corp.
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chairman
With a copy to: Xx. Xxxxxxxx X. Xxxx
XxXxxxx Long & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
7.7 Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof. All understanding and
agreements heretofore made between the parties hereto with respect to the
subject matter of this Agreement are merged into this document which alone fully
and completely expresses their agreement. This Agreement may not be changed
orally but only by an agreement in writing signed by both parties.
-14-
7.8 Survival of Provisions. The provisions of Section 4 "Restrictive
Covenants" shall survive termination of this Agreement.
7.9 Application of Code Section 409A. It is the intent of the parties to
this Agreement that this Agreement shall be interpreted, construed and operated
in compliance with any applicable provisions of Code Section 409A. To the extent
that future regulations issued pursuant to Code Section 409A require any
amendments to this Agreement, the parties agree that they will consent to, and
make, such amendments.
7.10 Captions. The captions appearing in this Agreement are inserted only
as a matter of convenience and in no way define, limit, construe or describe the
scope or intent of any provisions of this Agreement or in any way affect this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of this 8th day of August, 2005.
EXECUTIVE:
/s/ X. X. Xxxxxx, III
------------------------------------------
X. X. Xxxxxx, III
WEST GEORGIA NATIONAL BANK
By: /s/ L. Xxxxxxxx Xxxxxx
--------------------------------------
L. Xxxxxxxx Xxxxxx
Chief Executive Officer
WGNB CORP.
By: /s/ L. Xxxxxxxx Xxxxxx
--------------------------------------
L. Xxxxxxxx Xxxxxx
President and Chief Executive Officer
-15-
EXHIBIT "A"
GENERAL RELEASE
IN ACCORDANCE WITH THE TERMS OF THAT CERTAIN EMPLOYMENT AGREEMENT DATED
________ ___, 0000, XXXXXXX Xxxx Xxxxxxx National Bank (THE "BANK") AND X. X.
XXXXXX, III (THE "EXECUTIVE"), THE EXECUTIVE HEREBY ENTERS INTO THIS GENERAL
RELEASE, IN CONSIDERATION OF THE PAYMENTS AND BENEFITS THAT HE WILL RECEIVE AS A
RESULT OF HIS TERMINATION OF EMPLOYMENT EFFECTIVE AS OF ________________,
20____, TO WHICH HE WOULD NOT OTHERWISE BE ENTITLED, AS FOLLOWS:
THE EXECUTIVE AGREES, FOR HIMSELF, HIS SPOUSE, HEIRS, EXECUTOR OR
ADMINISTRATOR, ASSIGNS, INSURERS, ATTORNEYS AND OTHER PERSONS OR ENTITIES ACTING
OR PURPORTING TO ACT ON HIS BEHALF (THE "EXECUTIVE'S PARTIES"), TO IRREVOCABLY
AND UNCONDITIONALLY RELEASE, ACQUIT AND FOREVER DISCHARGE THE BANK AND WGNB,
THEIR AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS,
PARTNERS, AGENTS, REPRESENTATIVES, PREDECESSORS, SUCCESSORS, ASSIGNS, INSURERS,
ATTORNEYS, BENEFIT PLANS SPONSORED BY THE BANK AND WGNB AND SAID PLANS'
FIDUCIARIES, AGENTS AND TRUSTEES (THE "BANK'S PARTIES"), FROM ANY AND ALL
ACTIONS, CAUSE OF ACTION, SUITS, CLAIMS, OBLIGATIONS, LIABILITIES, DEBTS,
DEMANDS, CONTENTIONS, DAMAGES, JUDGMENTS, LEVIES AND EXECUTIONS OF ANY KIND,
WHETHER IN LAW OR IN EQUITY, KNOWN OR UNKNOWN, WHICH THE EXECUTIVE'S PARTIES
HAVE, HAVE HAD, OR MAY IN THE FUTURE CLAIM TO HAVE AGAINST THE BANK'S PARTIES BY
REASON OF, ARISING OUT OF, RELATED TO, OR RESULTING FROM EXECUTIVE'S EMPLOYMENT
WITH THE BANK AND WGNB OR THE TERMINATION THEREOF. THIS RELEASE SPECIFICALLY
INCLUDES WITHOUT LIMITATION ANY CLAIMS ARISING IN TORT OR CONTRACT, ANY CLAIM
BASED ON WRONGFUL DISCHARGE, ANY CLAIM BASED ON BREACH OF CONTRACT, ANY CLAIM
ARISING UNDER FEDERAL, STATE OR LOCAL LAW PROHIBITING RACE, SEX, AGE, RELIGION,
NATIONAL ORIGIN, HANDICAP, DISABILITY OR OTHER FORMS OF DISCRIMINATION, ANY
CLAIM ARISING UNDER FEDERAL, STATE OR LOCAL LAW CONCERNING EMPLOYMENT PRACTICES,
AND ANY CLAIM RELATING TO COMPENSATION OR BENEFITS. THIS SPECIFICALLY INCLUDES,
WITHOUT LIMITATION, ANY CLAIM WHICH THE EXECUTIVE HAS OR HAS HAD UNDER TITLE VII
OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, THE AGE DISCRIMINATION IN
EMPLOYMENT ACT, AS AMENDED ("ADEA"), THE AMERICANS WITH DISABILITIES ACT, AS
AMENDED, AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED. IT
IS UNDERSTOOD AND AGREED THAT THE WAIVER OF BENEFITS AND CLAIMS CONTAINED IN
THIS SECTION DOES NOT INCLUDE A WAIVER OF THE RIGHT TO PAYMENT OF ANY VESTED,
NONFORFEITABLE BENEFITS TO WHICH THE EXECUTIVE OR A BENEFICIARY OF THE EXECUTIVE
MAY BE ENTITLED UNDER THE TERMS AND PROVISIONS OF ANY EMPLOYEE BENEFIT PLAN OF
THE BANK WHICH HAVE ACCRUED AS OF THE SEPARATION DATE AND DOES NOT INCLUDE A
WAIVER OF THE RIGHT TO BENEFITS AND PAYMENT OF CONSIDERATION TO WHICH THE
EXECUTIVE MAY BE ENTITLED UNDER THE EMPLOYMENT AGREEMENT. THE EXECUTIVE
ACKNOWLEDGES THAT HE IS ONLY ENTITLED TO THE SEVERANCE BENEFITS AND COMPENSATION
SET FORTH IN THE EMPLOYMENT AGREEMENT, AND THAT ALL OTHER CLAIMS FOR ANY OTHER
BENEFITS OR COMPENSATION ARE HEREBY WAIVED, EXCEPT THOSE EXPRESSLY STATED IN THE
PRECEDING SENTENCE.
- 16 -
This paragraph shall apply only if the Executive has attained
age 40 or over at the time of his termination of employment. The Executive
hereby acknowledges that he is knowingly and voluntarily waiving and releasing
any rights he may have under ADEA and that the consideration given under the
Employment Agreement for this General Release is in addition to anything of
value to which he was already entitled. He further acknowledges that he has been
advised by this writing, as required by the ADEA, that: (A) the waiver and
release do not apply to any rights or claims that may arise on or after the date
he executes this Release; (B) he has the right to consult with an attorney prior
to executing this Release; (C) he has twenty-one (21) days to consider this
Release (although he may choose to voluntarily execute this Release earlier);
(D) he has seven (7) days following his execution of this Release to revoke the
Release; and (E) this Release shall not be effective until the date upon which
the revocation period has expired, which shall be the eighth day after he
executes this Release.
Agreed to, acknowledged and executed by the Executive this
___________ day of ____________________, 20______.
________________________________
X. X. XXXXXX, III
- 17 -
EXHIBIT "B"
APPROVED INVESTMENTS PURSUANT TO SECTION 2.2
Fifty (50%) Percent Ownership Interest in Budding Tree, LLC (Apartment Complex)
Twenty-Five (25%) Percent Ownership Interest in Outstretched Hand, LLC (Curves
For Women Franchise)
- 18 -
