EXHIBIT 10.2
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 1st day of July, 1998, by and among PREMIER BANCSHARES, INC., a Georgia
corporation (the "Holding Company"); PREMIER BANK, a wholly-owned Georgia
banking subsidiary of the Holding Company ("Premier"); THE BANK OF GWINNETT
COUNTY ("Gwinnett") (Premier and Gwinnett shall sometimes be collectively
referred to as "Employers"); and XXXXX X. XXXXX ("Employee") and shall become
effective only upon the closing of that certain Agreement and Plan of
Reorganization, dated as of February 5, 1998, by and between Xxxxxx Xxxxxxxx
Financial Corporation ("Xxxxxx Xxxxxxxx") and the Holding Company (the
"Effective Date").
W I T N E S S E T H:
WHEREAS, as of the Effective Date, Xxxxxx Xxxxxxxx, a Georgia
corporation, merged with and into the Holding Company, and Gwinnett became a
wholly-owned banking subsidiary of the Holding Company;
WHEREAS, as of the Effective Date, Employee became Executive Vice
President of the Holding Company, President of Premier and continued as
President of Gwinnett;
WHEREAS, the Boards of Directors of Employers and the Holding Company
consider the establishment and maintenance of highly competent and skilled
management personnel for Employers and the Holding Company to be essential to
protecting and enhancing their best interests;
WHEREAS, the Boards of Directors of Employers and the Holding Company
are desirous of inducing Employee to remain in the employ of Employers and the
Holding Company, subject to the terms and conditions hereof;
WHEREAS, Employee is desirous of remaining in the employ of the
Holding Company and Employers, subject to the terms and conditions hereof; and
WHEREAS, the parties agree that the provisions of this Agreement shall
control with respect to the rights and obligations of the parties resulting from
the employment of Employee by Employers and the Holding Company;
NOW, THEREFORE, for and in consideration of the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definitions. The following terms used in this Agreement shall have the
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following meanings:
(a) "Base Salary" shall mean the annual compensation (excluding
Incentive Compensation as defined in (e) of this paragraph and other
benefits) payable or paid to Employee pursuant to paragraph 4(a) of this
Agreement.
(b) "Change of Control" shall be deemed to have occurred if:
(i) Upon the consummation of any transaction in which any person
(or persons acting in concert), partnership, corporation, or other
organization shall own, control, or hold with the power to vote more
than fifty percent (50%) of any class of voting securities of the
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Holding Company;
(ii) Upon the consummation of any transaction in which the
Holding Company, or substantially all of the assets of the Holding
Company, shall be sold or transferred to, or consolidated or merged
with, another corporation; or
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(iii) Upon the consummation of any transaction in which either or
both Employers, or substantially all of the assets of either or both
Employers, shall be sold or transferred to, or consolidated or merged
with, another corporation which is not a majority owned subsidiary of
the Holding Company;
provided, however, if the Holding Company or the Employers shall become a
subsidiary of another corporation or shall be merged or consolidated into
another corporation and a majority of the outstanding voting shares of the
parent or surviving corporation are owned immediately after such
acquisition, merger, or consolidation by the owners of a majority of the
voting shares of the Holding Company immediately before such acquisition,
merger, or consolidation, then no Change of Control shall be deemed to have
occurred. It is contemplated by the parties that, during the Term of
Employment, Gwinnett may be merged with and into Premier; and further that,
upon such merger, Premier, for all purposes under this Agreement, shall be
deemed the sole employer of Employee and referred to as "Employers."
(c) "Disability" shall mean a condition for which benefits would be
payable under any long-term disability insurance coverage (without regard
to the application of any elimination period requirement) then provided to
Employee by Employers and/or the Holding Company; or, if no such coverage
is then being provided, the inability of Employee to perform the material
aspects of Employee's duties under this Agreement for a period of at least
ninety (90) consecutive days, as determined by an independent physician
selected with the approval of Employers and/or the Holding Company and
Employee.
(d) "Event of Termination" shall mean the termination by Employers
and/or the Holding Company of Employee's employment under this Agreement by
written notice
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delivered to Employee for any reason other than Termination for Cause as
defined in (g) of this paragraph or termination following a continuous
period of disability exceeding twelve (12) calendar months pursuant to
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paragraph 6(a) of this Agreement.
(e) "Incentive Compensation" shall mean that compensation payable or
paid to Employee pursuant to paragraph 4(b) of this Agreement.
(f) "Severance Amount" shall have the same meaning as the term
"parachute payment" defined in Section 280G(b)(2) of the Internal Revenue
Code (as amended).
(g) "Termination for Cause" shall have the meaning provided in
paragraph 7(a) of this Agreement.
2. Employment.
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(a) Employers and the Holding Company agree to continue Employee in
their employ, and Employee agrees to remain in the employ of Employers and
the Holding Company, as Executive Vice President of the Holding Company, as
President and Chief Executive Officer of Premier, and as President and
Chief Executive Officer of Gwinnett, for the period stated in paragraph
3(a) hereof and upon the other terms and conditions herein provided.
Employee agrees to perform faithfully such services as are reasonably
consistent with his positions and shall from time to time be assigned to
him by the Boards of Directors of Employers and the Holding Company in a
trustworthy and businesslike manner for the purpose of advancing the
interests of Employers and the Holding Company. At all times,
Employee shall manage and conduct the business of Employers and the Holding
Company in accordance with the policies established by the Boards of
Directors of Employers and the Holding Company, and in compliance with
applicable regulations promulgated by governing regulatory agencies.
Responsibility for the supervision of Employee shall rest with the
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Boards of Directors of Employers and the Holding Company, which shall
review Employee's performance at least annually. The Boards of Directors of
Employers and the Holding Company shall also have the authority to
terminate Employee, subject to the provisions outlined in paragraph 7 of
this Agreement.
(b) During the term of this Agreement, the Holding Company shall
elect Employee to the Board of Directors of Premier and Employee shall
serve as a Director of Premier. It is expressly agreed that Employee shall
cease serving as a Director of Premier upon the termination of this
Agreement and Employee hereby agrees to immediately resign from the Board
of Directors of Premier upon the termination of this Agreement, whether
voluntary or involuntary, with or without cause.
3. Term and Duties.
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(a) Term of Employment. This Agreement and the period of Employee's
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employment under this Agreement shall be deemed to have commenced as of the
Effective Date and shall continue for a period of thirty-six (36) full
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calendar months thereafter, unless earlier terminated pursuant to this
Agreement or unless Employee dies before the end of such thirty-six (36)
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months, in which case the period of employment shall be deemed to continue
until the end of the month of such death. On each anniversary of the
Effective Date, this Agreement and Employee's term of employment shall be
automatically extended for an additional twelve (12) month period, unless
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Employee on the one hand, or Employers and/or the Holding Company on the
other hand, shall give written notice to the other, within the sixty (60)-
day period immediately prior to the applicable anniversary of the Effective
Date, that Employee's term of employment hereunder shall not be extended.
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(b) Performance of Duties. During the period of employment hereunder,
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except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote substantially all of
his business time, attention, skill, and efforts to the faithful
performance of his duties hereunder. Employee's duties shall be divided
between Employers and the Holding Company at the direction and in the
discretion of the Boards of Directors of Employers and the Holding Company
as is commensurate with the division of salary set forth in paragraph 4(a)
of this Agreement. Employee shall be entitled to reasonable participation
as a member in community, civic, or similar organizations and the pursuit
of personal investments which do not present any material conflict of
interest with Employers or the Holding Company, or otherwise unfavorably
affect the performance of Employee's duties pursuant to this Agreement.
(c) Office of Employee. The office of Employee shall be located at
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000 Xxxxx Xxxxx Xxxxxx, X.X., Xxxxxxxxxxxxx, Xxxxxxx 00000, or at such
other location within Xxxxxx or Gwinnett County as Employers and the
Holding Company may from time to time designate; provided, however, that,
in the event such relocation required Employee to move his principal
residence, the Holding Company and/or Employers shall reimburse Employee
for all his reasonable moving expenses.
(d) No Other Agreement. The Employee shall have no employment
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contract or other written or oral agreement concerning employment with any
entity or person other than Employers and the Holding Company during the
term of his employment under this Agreement.
(e) Uniqueness of Employee's Services. Employee hereby represents
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that the services to be performed by him under the terms of this Agreement
are of a special, unique,
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unusual, extraordinary, and intellectual character which gives them a
peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages and in an action at law. Accordingly, Employee
expressly agrees that Employers and/or the Holding Company, in addition to
any rights or remedies which Employers and/or the Holding Company may
possess, shall be entitled to injunctive and other equitable relief to
prevent the breach of this Agreement by Employee.
4. Compensation and Reimbursement of Expenses.
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(a) Salary. Subject to the provisions of paragraph 7 hereof,
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Employers shall pay Employee, as compensation for serving as President and
Chief Executive Officer of Employers, an initial Base Salary of
$185,000.00; such initial Base Salary, or any increased Base Salary, shall
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be payable in substantially equal installments in accordance with the
Employers' normal pay practices, but not less frequently than monthly. For
each twelve-month period, 10% of Employee's Base Salary shall be ascribed
to and reflected upon the books and records of the Holding Company for the
services performed by Employee for the Holding Company and, until Gwinnett
shall be merged with and into Premier, 45% of Employee's Base Salary shall
be ascribed to and reflected upon the books and records of Gwinnett and 45%
of Employee's Base Salary shall be ascribed to and reflected upon the books
and records of Premier, commensurate with the services performed by
Employee for the respective employer. Employee's Base Salary and any
Incentive Compensation (as defined in paragraph 4(b) hereof) shall be
reviewed and approved at least annually by the Boards of Directors of
Employers and the Holding Company, or any committee(s) designated thereby.
Said Boards or Committee(s), if warranted in their discretion, may increase
Employee's Base Salary to reflect Employee's performance.
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(b) Incentive Compensation. During the Term of Employment, Employee
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shall be eligible to participate in any incentive bonus plans maintained by
Employers and/or the Holding Company for its/their executive officers. It
is contemplated that an annual incentive bonus plan will be maintained by
Employers and/or the Holding Company which will establish individual
performance goals for Employee each and every fiscal year during the Term
of Employment, with Employee being awarded a target bonus ("Incentive
Compensation") of approximately thirty-five percent (35%) of his then
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current Base Salary upon the attainment, in the discretion of the Boards of
Directors of Employers and/or the Holding Company or any committee(s)
designated thereby, of Employee's individual performance goals and certain
specified corporate objectives. The payment to Employee of any Incentive
Compensation as aforesaid shall be made by Employers and/or the Holding
Company in accordance with the policy or policies established by the Boards
of Directors of Employers and/or the Holding Company or any committee(s)
designated thereby. Notwithstanding anything contained in this Agreement to
the contrary, any increase to Employee's Total Compensation, as hereinafter
defined, paid to Employee shall be (i) in compliance with regulations,
pronouncements, directives, or orders issued or promulgated by any
governing regulatory agency and with any agreements by and between
Employers and/or the Holding Company and such regulatory agencies, (ii)
consistent with the safe and sound operation of Employers and the Holding
Company, (iii) closely monitored by the Boards of Directors of Employers
and the Holding Company and (iv) comparable to such compensation paid to
persons of similar responsibilities and duties in other insured
institutions of similar size, in similar locations, and under similar
circumstances including financial condition and profitability.
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(c) Total Compensation. During the first thirty-six (36) months of
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this Agreement, Employee shall receive a minimum Total Compensation of
$240,000.00, annually. "Total Compensation" is defined as the sum of
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Employee's Base Salary plus Employee's Incentive Compensation. After the
first thirty-six (36) months of this Agreement have expired, Employee shall
receive such Total Compensation as is determined in the discretion of the
Boards of Directors of Employers and/or the Holding Company or any
committee(s) designated thereby as set forth in paragraphs 7(a) and 7(b)
above.
(d) Reimbursement of Expenses. Employers and/or the Holding Company
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shall pay or reimburse Employee for all reasonable travel (except as
modified by paragraph 7(f) hereof) and other expenses incurred by Employee
in the performance of his obligations and duties under this Agreement as
provided in the applicable policies of Employers and/or the Holding
Company, as currently adopted or as may be adopted in the future by the
Boards of Directors of Employers and/or the Holding Company.
(e) Provision for Business Development Expenses. In addition to the
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foregoing, Employers and the Holding Company believe that their best
interests will be more fully served if Employee maintains active membership
in or joins appropriate business or social clubs and other professional
associations. Accordingly, Employers shall also reimburse Employee for the
dues and business related expenditures associated with Employee's
membership in the Atlanta Athletic Club and such appropriate business or
other social clubs and professional associations which are commensurate
with his positions and approved by the Boards of Directors of Employers and
the Holding Company.
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(f) Provision of Automobile.
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(i) The Holding Company shall, on the Effective Date of this
Agreement, cause to be transferred to Employee the title to that
certain 1995 Chevrolet Impala automobile owned by Gwinnett.
(ii) Employers and/or Holding Company shall provide Employee
with an automobile allowance of $800 per month. No other reimbursement
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will be made relating to the operation and maintenance of any
automobile by Employee; and Employee shall maintain, at his expense,
automobile liability insurance to protect Employee and Employers
and/or the Holding Company, as their respective interests may appear,
against claims arising out of the use of said automobile (or any other
motor vehicle) in the course of Employee's employment hereunder.
(f) "Golden Parachute" Provision. Notwithstanding anything contained
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in this Agreement to the contrary, any payments made to Employee pursuant
to this Agreement, or otherwise to Employee, are subject to and conditioned
upon their compliance with 12 U.S.C. (S) 1828(k) and any regulations
promulgated thereunder.
5. Participation in Benefit Plans. The payments provided in paragraph 4,
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6, and 7 hereof are in addition to any benefits to which Employee may be, or may
become, entitled to, under any group hospitalization, health, dental care, or
sick leave plan; life insurance or death benefit plan; travel or accident
insurance; pension or retirement plan; stock option or ownership plan; or other
present or future group employee benefit plan or program for which senior
executive officers of Employers and/or the Holding Company shall be or shall
become eligible. Said benefit shall include, without limitation, major
medical/dental insurance for Employee and his dependents.
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6. Benefits Payable Upon Disability.
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(a) Disability Benefits. In the event of the Disability of Employee,
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Employers and the Holding Company shall continue to pay Employee 100% of
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Employee's then current Base Salary pursuant to paragraph 4(a) during the
first twelve (12) months of a continuous period of disability. It is
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provided, however, that in the event Employee is disabled for a continuous
period exceeding twelve (12) months, Employers and/or the Holding Company
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may, at its election, terminate this Agreement, in which event payment of
Employee's Base Salary shall cease.
(b) Disability Benefit Offset. Any amounts payable under paragraph
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6(a) hereof shall be reduced by any amounts paid to Employee under any
other disability program or policy of insurance maintained by Employers
and/or the Holding Company.
7. Payments to Employee Upon Termination of Employment. The Boards of
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Directors of Employers and the Holding Company may terminate Employee's
employment under this Agreement at any time; but any termination other than
Termination for Cause shall not prejudice Employee's right to compensation or
other benefits under this Agreement. Employee may voluntarily terminate his
employment under this Agreement. The rights and obligations of Employers and/or
the Holding Company and Employee in the event of such termination are set forth
in this paragraph 7 as follows:
(a) Termination for Cause. Employee shall have no right to
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compensation or other benefits for any period after a Termination for
Cause. Termination for Cause shall be determined by the Boards of
Directors of Employers and the Holding Company in the reasonable exercise
of their discretion and acting in good faith. For purposes of this
Agreement, "Cause" shall mean:
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(i) the willful or gross misconduct or willful or gross
negligence in the performance by Employee of Employee's duties for
Employers and/or the Holding Company;
(ii) the intentional neglect by Employee of Employee's duties
for Employers and/or the Holding Company;
(iii) the conviction of Employee of theft or misappropriation of
funds of Employers and/or the Holding Company or of a business-related
felony or a felony involving moral turpitude;
(iv) the commencement of a proceeding by or against Employee
under any bankruptcy, insolvency, or similar law;
(v) the willful violation by Employee of any agreement with, or
cease and desist order entered by, any governing regulatory agency
involving Employers and/or the Holding Company; or
(vi) the regulatory suspension or removal of Employee as defined
in paragraphs 9(a) and (b) hereof.
The termination of employment of Employee shall not be deemed to be for
Cause unless and until there shall have been delivered to Employee a copy
of a resolution duly adopted by the affirmative vote of not less than two-
thirds of the entire membership of the Board(s) of the Holding Company,
Premier, and/or Gwinnett at a meeting of the respective Board(s) called and
held for such purpose (after reasonable notice is provided to Employee and
Employee is given an opportunity, together with counsel, to be heard before
the Board), finding that, in the good faith opinion of the Board, Employee
is guilty of the conduct described herein
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in subparagraph (i), (ii), (iii), (iv), (v), or (vi) of this paragraph 7(a)
above, and specifying the particulars thereof in detail.
(b) Event of Termination Without Change of Control. Upon the
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occurrence of an Event of Termination, other than after a Change of
Control as provided in paragraph 7(c) hereof, Employee, or in the event of
his subsequent death, his designated beneficiary or beneficiaries, or his
estate, as the case may be, shall receive, as liquidated damages, in lieu
of all other claims, a severance payment equal to three (3) times
Employee's then current Total Compensation paid to Employee during the
immediately preceding twelve (12) months, to be paid in full on the last
day of the month following the date of said Event of Termination. The
responsibility for making such severance payment shall be allocated among
Employers and the Holding Company in whatever manner they deem appropriate.
(c) Event of Termination in Connection With a Change of Control. If,
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during the term of this Agreement and within one (1) year immediately
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following a Change of Control or within six (6) months immediately prior to
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such Change of Control, Employee's employment with Employers under this
Agreement is terminated by an Event of Termination, Employee, or in the
event of his subsequent death, his designated beneficiary or beneficiaries,
or his estate, as the case may be, shall receive, as liquidated damages, in
lieu of all other claims, a severance payment equal to three (3) times
Employee's then current Total Compensation paid to Employee during the
immediately preceding twelve (12) months, to be paid in full on the last
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day of the month following the date of said Event of Termination. The
responsibility for making such severance payment shall be allocated among
Employers and the Holding Company in whatever manner they deem appropriate.
In no event shall the payment(s) described in this paragraph 7(c) exceed
the amount
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permitted by Section 280G of the Internal Revenue Code (as amended).
Therefore, if the aggregate present value (determined as of the date of the
Change of Control in accordance with the provisions of Section 280G of the
Internal Revenue Code (as amended) or any successor thereof and the
regulations and rulings thereunder ("Section 280G")) of both the Severance
Amount and all other payments to Employee in the nature of compensation
which are contingent on a change in ownership or effective control of the
Employers or Holding Company or in the ownership of a substantial portion
of the assets of Employers or Holding Company (the "Aggregate Severance")
would result in a parachute payment (as determined under Section 280G) then
the Aggregate Severance shall not be greater than an amount equal to 2.99
multiplied by Employee's base amount (as determined under Section 280G) for
the base period (as determined under Section 280G). In the event the
Aggregate Severance is required to be reduced pursuant to this paragraph
7(c), Employee shall be entitled to determine which portions of the
Aggregate Severance are to be reduced so that the Aggregate Severance
satisfies the limit set forth in the preceding sentence. Employee's average
annual compensation shall be based on the most recent five taxable years
ending before the Change of Control (or the period during which Employee
was employed by Employers and/or the Holding Company if Employee has been
employed by Employers and/or the Holding Company for less than five years).
(d) Voluntary Termination of Employment. Employee shall have no right
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to compensation or other benefits under this Agreement for any period
following the voluntary termination of Employee's employment by Employee,
except as provided in paragraph 7(b), 7(c), or 7(e) hereof.
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(e) Termination of Employment for Good Reason. If, during the term of
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this Agreement, the status, character, capacity, and circumstances of
Employee's employment as provided in paragraphs 2, 3, 4 and 5 of this
Agreement have been materially altered by Employers or the Holding Company,
whether by a reduction in salary, responsibilities, authority or benefits,
and Employee terminates his employment under this Agreement within twelve
(12) months thereafter for that reason, Employee, or in the event of his
subsequent death, his designated beneficiary or beneficiaries, or his
estate, as the case may be, shall receive as liquidated damages, in lieu of
all other claims, a severance payment equal to three (3) times Employee's
then current Total Compensation paid to Employee during the immediately
preceding twelve (12) months, to be paid in full on the last day of the
month following the date of said termination. The responsibility for
making such severance payments shall be allocated among Employers and the
Holding Company in whatever manner they deem appropriate.
(f) Additional Payments After Termination. In the event that
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Employee's employment is terminated pursuant to paragraph 7(b), 7(c), or
7(e) above, then Employers and/or the Holding Company shall pay Employee an
additional amount equal to Employee's cost of COBRA health continuation
coverage for Employee and his eligible dependants for the period during
which Employee and his eligible dependants are entitled to receive COBRA
continuation coverage from Employers and/or the Holding Company under the
applicable laws, rules and regulations governing COBRA.
8. Vacation and Sick Leave. Employee shall be entitled, without loss of
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pay, to absent himself voluntarily from the performance of his duties under this
Agreement in accordance with the terms set forth below, all such voluntary
absences to count as vacation time, provided that:
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(a) Employee shall be entitled to an annual vacation in accordance
with the policies that the Boards of Directors of Employers and/or the
Holding Company periodically establish(es) for senior management employees
of Employers and/or the Holding Company.
(b) Employee shall not receive any additional compensation from
Employers and/or the Holding Company on account of his failure to take a
vacation, and Employee shall not accumulate unused vacation from one fiscal
year to the next, except in either case to the extent authorized by the
Boards of Directors of Employers and/or the Holding Company.
(c) In addition to the aforesaid paid vacations, Employee shall be
entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment obligations with Employers and the Holding
Company for such additional periods of time and for such valid and
legitimate reasons as the Boards of Directors of Employers and/or the
Holding Company may in its/their discretion approve. It is also provided
that the Boards of Directors of Employers and/or the Holding Company may
grant to Employee a leave or leaves of absence, with or without pay, at
such time or times and upon such terms and conditions as the Boards of
Directors of Employers and/or the Holding Company may in its/their
discretion determine.
(d) Employee shall be further entitled to an annual sick leave
benefit as may be established by the Boards of Directors of Employers
and/or the Holding Company.
9. Regulatory Suspension.
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(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employers by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S)1818(e)(3) or (g)(1), the obligations of Employers and the
Holding Company under this Agreement shall be suspended as of the date
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of service of such notice, unless stayed by appropriate proceedings. If
the charges in the notice are dismissed, then the Employers and/or the
Holding Company may, in their discretion, (i) pay Employee all or part of
the compensation withheld while its contract obligations were suspended and
(ii) reinstate in whole or in part any of its obligations which were
suspended.
(b) If Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employer by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(4) or (g)(1), all obligations of the Employers and the
Holding Company under this Agreement shall terminate as of the effective
date of the order.
10. Source of Payments. All payments provided in paragraphs 4, 6, and 7
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hereof shall be paid in cash from the general funds of Employers and/or the
Holding Company as provided herein, and no special or separate fund shall be
established by Employers or the Holding Company, and no other segregation of
assets shall be made to assure payment. Employee shall have no right, title, or
interest in or to any investments which Employers and/or the Holding Company may
make to meet the obligations hereunder.
11. Nondisclosure of Confidential Information. Employee acknowledges that
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he possesses confidential information of a special and unique nature and value
affecting and relating to Employers's and the Holding Company's business,
including, without limitation, customer lists, deposits, business records, other
trade secrets, and other similar confidential information relating to Employers
and the Holding Company and the business of each (all the foregoing being
hereinafter collectively referred to as "Confidential Information"). Employee
recognizes and acknowledges that all Confidential Information is the exclusive
property of Employers and the Holding Company, respectively, constitutes trade
secrets of Employers and the Holding Company, is material and
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confidential, and greatly affects the goodwill and the effective and successful
conduct of the business of Employers and the Holding Company. As a material
inducement to Employers and the Holding Company to enter into this Agreement and
to employ Employee, Employee covenants and agrees that he will not at any time
during the term of his employment under this Agreement, and for a period of one
(1) year from the end of such employment, directly or indirectly, divulge,
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reveal, or communicate any Confidential Information to any person, firm,
corporation, or entity whatsoever, or use any Confidential Information for his
own benefit or for the benefit of others. Employee further acknowledges that
said Confidential Information has material commercial value to Employers and the
Holding Company so long as it is not known by competitors of Employers and/or
the Holding Company and that Employers and the Holding Company have taken
reasonable steps to keep all such information and trade secrets confidential.
12. Injunctions. In view of the irreparable harm and damage which
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Employers and the Holding Company would sustain as a result of a breach by
Employee of the covenants or agreements under paragraph 11 hereof, and in view
of the lack of an adequate remedy at law to protect Employers's and the Holding
Company's interests, Employers and the Holding Company shall have the right to
receive, and Employee hereby consents to the issuance of, a permanent injunction
enjoining Employee from any violation of the covenants and agreements set forth
in paragraph 11 hereof, which injunction shall be of a duration consistent with
the provisions of paragraph 11 hereof. The foregoing remedy shall be in addition
to, and not in limitation of, any other rights or remedies to which Employers
and/or the Holding Company are or may be entitled at law or in equity respecting
this Agreement.
13. Attorneys' Fees. In the event any party hereto is required to engage
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in legal action against any other party hereto, either as plaintiff or
defendant, in order to enforce or defend any of
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its or his rights under this Agreement, and such action results in a final
judgment in favor of one or more parties, then the party or parties against whom
said final judgment is obtained shall reimburse the prevailing party or parties
for all legal fees and expenses incurred by the prevailing party or parties in
asserting or defending its or his rights hereunder. It is provided, however,
that, prior to a final judgment, Employers and/or the Holding Company shall
advance to Employee the reasonable legal fees and expenses incurred by Employee
in connection with Employee's engagement in any legal action against Employers
and/or the Holding Company, either as plaintiff or defendant, in order to
enforce or defend any of Employee's rights under this Agreement. Such advances
shall be made within thirty (30) days after receiving copies of invoices
presented by Employee for such reasonable legal fees and expenses. Employee
shall have the obligation to reimburse Employers and/or the Holding Company
within sixty (60) days following the final disposition of the matter (including
appeals) to the full extent of the aggregate advances unless Employee shall have
prevailed in asserting or defending his rights hereunder.
14. Federal Income Tax Withholding. Employers and the Holding Company may
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withhold from any benefits payable under this Agreement all federal, state,
city, or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
15. Effect of Prior Agreements. This Agreement, that certain Indexed
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Executive Salary Continuation Agreement, dated as of September 9, 1994, as
amended and restated, between Employee and Gwinnett, and that certain Flexible
Premium Life Insurance Endorsement Method Split Dollar Plan Agreement, dated as
of September 9, 1994, as amended, between Employee and Gwinnett, contain the
entire understanding between the parties hereto and supersede any prior written
agreements and any contemporaneous oral agreements or understandings by,
between, or among the Employers and/or the Holding Company and Employee with
respect to Employee's employment.
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16. General Provisions.
------------------
(a) Nonassignability. Neither this Agreement nor any right or
----------------
interest hereunder shall be assignable by Employee, his beneficiaries or
legal representatives, without the written consent of Employers and the
Holding Company; provided, however, that nothing in this paragraph 16(a)
shall preclude (i) Employee from designating a beneficiary to receive any
benefits payable hereunder upon his death, or (ii) the executors,
administrators, or other legal representatives of Employee or his estate
from assigning any rights hereunder to the person or persons entitled
thereto.
(b) No Attachment. Except as required by law, no right to receive
-------------
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void,
and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and
-----------------
inure to the benefit of, Employers, the Holding Company, and Employee and
their respective heirs, successors, assigns, and legal representatives.
17. Modification and Waiver.
-----------------------
(a) Amendment of Agreement. This Agreement may not be modified or
----------------------
amended except by an instrument in writing, signed by the parties hereto,
and which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to
------
have been waived, nor shall there be any estoppel against the enforcement
of any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated
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therein, and each waiver shall operate only as to the specific term or
condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically
waived.
18. Severability. If for any reason any provision of this Agreement is
------------
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
19. Headings. The headings of paragraphs herein are included solely for
--------
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
20. Governing Law. This Agreement has been executed and delivered in the
-------------
State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
21. Rights of Third Parties. Nothing herein expressed or implied is
-----------------------
intended to or shall be construed to confer upon or give to any person, firm, or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement.
22. Notices. All notices, requests, demands, and other communications
-------
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the United
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States by registered or certified mail, or personally delivered, to the party
entitled thereto at the address stated below or to such changed address as the
addressee may have given by a similar notice:
To Employers and
the Holding Company: Chairman, Compensation Committee
Board of Directors
Premier Bancshares, Inc.
0000 Xxxxxxx Xxxxx
000 X. Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
-and-
Copy to: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC
Xxxxx 000
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
To Employee: Xx. Xxxxx X. Xxxxx
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxxxxxx, Xxxxxxx 00000
IN WITNESS WHEREOF, Employers and the Holding Company have caused this
Agreement to be executed and their seal to be affixed hereunto by their duly
authorized officers, and Employee has signed this Agreement, as of the Effective
Date.
ATTEST: PREMIER BANCSHARES, INC.
/s/ By: /s/
----------------------- -------------------------------
Secretary Xxxxxxx X. Xxxxxxx
Chairman of the Board
[CORPORATE SEAL]
ATTEST: PREMIER BANK
/s/ By: /s/
----------------------- --------------------------------
Secretary Xxxxxxx X. Xxxxxxx
Chairman of the Board
[BANK SEAL]
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ATTEST: THE BANK OF GWINNETT COUNTY
/s/ By: /s/
----------------------- ------------------------------
Secretary Xxxx X. Xxxxxxxx
Chairman of the Board
[BANK SEAL]
/s/ /s/ (SEAL)
----------------------- ------------------------------
Witness XXXXX X. XXXXX
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