Exhibit 10.1
EXECUTION COPY
EXECUTIVE EMPLOYMENT AGREEMENT
------------------------------
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement"), is entered into
as of the 21st day of August, 2001, by and between ABC BANCORP, a Georgia
corporation ("Employer"), and W. XXXXX XXXX, XX., an individual resident of the
State of Georgia ("Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Executive is employed as the Executive Vice President and
Chief Financial Officer of Employer;
WHEREAS, Employer wishes to continue to employ Executive as its
Executive Vice President and Chief Financial Officer, and Executive wishes to
continue to serve in such position, on the terms and conditions set forth
herein;
WHEREAS, Employer and Executive are parties to that certain Severance
Protection and Non-Competition Agreement dated as of November 1, 1998 (the
"Severance Protection Agreement"), and Employer and Executive each desire to
terminate the Severance Protection Agreement contemporaneous with the execution
and delivery hereof;
WHEREAS, Executive desires to be assured of a secure minimum
compensation from Employer for his services over a defined term;
WHEREAS, Employer desires to assure the continued services of Executive
on behalf of Employer on an objective and impartial basis and without
distraction or conflict of interest in the event of an attempt by any person or
entity to obtain control of Employer;
WHEREAS, Employer desires to provide fair and reasonable benefits to
Executive on the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, Employer desires reasonable protection of its confidential
business and customer information which it has developed over the years at
substantial expense and assurance that Executive will not compete with Employer
for a reasonable period of time after termination of his employment with
Employer, except as otherwise provided herein;
NOW, THEREFORE, in consideration of these premises, the mutual
covenants and undertakings herein contained, Employer and Employee, each
intending to be legally bound, covenant and agree as follows:
1. Termination of Severance Protection Agreement. Notwithstanding any
---------------------------------------------
of the terms and conditions of the Severance Protection Agreement to the
contrary with respect
to the termination thereof or otherwise, Employer and Executive hereby terminate
the Severance Protection Agreement, effective as of the date hereof. Employer
and Executive acknowledge and agree that neither party to the Severance
Protection Agreement shall have or possess any rights against or obligations to
the other party thereto with respect to any of the representations, warranties,
covenants and agreements set forth therein. In addition, Employer and Executive
covenant and agree that the termination of the Severance Protection Agreement
and the rights granted therein shall not constitute a breach thereof or default
thereunder or create any further or additional duties or obligations of the
parties thereto.
2. Employment. Upon the terms and subject to the conditions set
----------
forth in this Agreement, Employer employs Executive as its Executive Vice
President and Chief Financial Officer, and Executive hereby accepts such
employment.
3. Position and Duties. Executive agrees to serve as the Executive
-------------------
Vice President and Chief Financial Officer of Employer and to perform such
duties in that office as may reasonably be assigned to him by the Board of
Directors of Employer (the "Board") or by the Chief Executive Officer or
President of Employer; provided, however, that such duties shall be of the same
-------- -------
character as those generally associated with the office held by Executive.
Employer shall not, without the written consent of Executive, relocate or
transfer Executive to a location other than a location within the geographic
boundaries of the State of Georgia. During the term of this Agreement, Executive
agrees that he will serve Employer faithfully and to the best of his ability and
that he will devote his full business time, attention and skills to Employer's
business; provided, however, that the foregoing shall not be deemed to restrict
-------- -------
Executive from devoting a reasonable amount of time and attention to the
management of his personal affairs and investments, so long as such activities
do not interfere with the responsible performance of Executive's duties
hereunder.
4. Term. The term of this Agreement shall begin on the date hereof
----
(the "Effective Date") and, unless otherwise earlier terminated pursuant to
Section 9 hereof, shall end on the date which is one (1) year following the
Effective Date (hereinafter referred to as the "Initial Term"). The Initial Term
shall be extended automatically for an additional one (1) year term (each an
"Additional Term") on the last day of the Initial Term or each Additional Term
hereof unless either party hereto gives written notice to the other party not to
so extend within ninety (90) days prior to the expiration of the Initial Term or
any subsequent Additional Term, as the case may be, in which case no further
extension shall occur and the term of this Agreement shall end at the end of the
Initial Term or the Additional Term during which such notice not to so extend
was given; provided, however, that, notwithstanding any notice by Employer not
-------- -------
to extend, the term of this Agreement shall not expire prior to the expiration
of twelve (12) months after the occurrence of a Change of Control (as
hereinafter defined); and provided further, however, that this Agreement shall
-------- ------- -------
automatically terminate (and the Initial Term or any Additional Term shall
thereupon end) without notice when Executive attains 65 years of age.
2
5. Compensation.
------------
(A) Executive shall receive an annual salary of One Hundred Twenty
Thousand Six Hundred Fifty Dollars ($120,650.00) ("Base Compensation") payable
at regular intervals in accordance with Employer's normal payroll practices now
or hereafter in effect. Employer may consider and declare from time to time
increases in the salary it pays Executive and thereby increase the Base
Compensation. Prior to (but not after) a Change of Control, Employer may also
declare decreases in the salary it pays Executive if the operating results of
Employer are significantly less favorable than those for its immediately
preceding fiscal year, and Employer makes similar decreases in the salary it
pays to other executive officers of Employer; provided, however, that Employer
-------- -------
shall not be permitted to decrease Executive's annual salary below $120,650.00
during the Initial Term hereof. After a Change of Control, Employer shall
consider and declare salary increases based upon the following standards: (1)
Inflation; (2) Adjustments to the salaries of other senior management personnel;
and (3) Past performance of Executive and the contribution which Executive makes
to the business and profits of Employer. Any and all increases or decreases in
Executive's salary pursuant to this Section 5(A) shall cause the level of Base
Compensation to be increased or decreased by the amount of each such increase or
decrease for purposes of this Agreement. The increased or decreased level of
Base Compensation as provided in this Section 5(A) shall become the level of
Base Compensation for the remainder of the Initial Term or any Additional Term
until there is a further increase or decrease in Base Compensation as provided
herein.
(B) In addition to his Base Compensation, Executive shall be awarded,
during each calendar year during the Initial Term or any Additional Term
hereunder, an annual bonus (an "Annual Bonus") either pursuant to a bonus or
incentive plan of Employer or otherwise on terms no less favorable than those
awarded to other executive officers of Employer.
6. Other Benefits. So long as Executive is employed by Employer
--------------
pursuant to this Agreement, he shall be included as a participant in all present
and future employee benefit, retirement and compensation plans of Employer
generally available to its employees, consistent with his Base Compensation and
his position as Executive Vice President and Chief Financial Officer, including,
without limitation, Employer's Money Purchase Pension Plan and 401(k) Profit
Sharing Plan, and Executive and his dependents shall be included in Employer's
hospitalization, major medical, disability and group life insurance plans. Each
of the above benefits shall continue in effect on terms no less favorable than
those for other executive officers of Employer in effect as of the date hereof
(as permitted by law) during the Initial Term or any Additional Term hereof (A)
unless prior to a Change of Control, the operating results of Employer are
significantly less favorable than those for its immediately preceding fiscal
year, or (B) unless (either before or after a Change of Control) (1) changes in
the accounting or tax treatment of such plans would materially adversely affect
Employer's operating results or financial condition, and (2) the Board concludes
that modifications to such plans need to be made to avoid such adverse effects.
3
7. Expenses. So long as Executive is employed by Employer pursuant
--------
to this Agreement, Executive shall receive reimbursement from Employer for all
reasonable business expenses incurred in the course of his employment by
Employer upon proper submission to Employer of written vouchers and statements
for reimbursement. In addition, Employer shall (A) provide to Executive an
automobile and pay for all costs associated therewith during the Initial Term
and any Additional Term hereof, and (B) reimburse Executive for all mileage
driven by Executive in his personal automobile in connection with his duties
hereunder in accordance with Employer's mileage reimbursement policy as in
effect from time to time. Employer shall also use its best efforts to provide to
Executive a country club membership for business and personal use and shall pay
for all initiation fees and monthly dues related thereto; provided, however,
-------- -------
that, if such membership is not already owned by Executive as of the date
hereof, then such membership shall be and remain the sole property of Employer.
8 Vacation. Executive shall be entitled to three (3) weeks paid
--------
vacation during each calendar year of Executive's employment hereunder.
9. Termination. Subject to the respective continuing obligations of
-----------
the parties hereto, including, without limitation, those set forth in
Subsections 11(A), 11(B), 11(C) and 11(D) hereof, Executive's employment by
Employer hereunder may be terminated prior to the expiration of the Initial Term
or any Additional Term hereof as follows:
(A) Employer, by action of the Board and upon written notice to
Executive, may terminate Executive's employment with Employer immediately for
cause. For purposes of this Subsection 9(A), "cause" for termination of
Executive's employment shall exist (a) if Executive is convicted of (from which
no appeal may be taken), or pleads guilty to, any act of fraud, misappropriation
or embezzlement, or any felony, (b) if, in the determination of the Board,
Executive has engaged in gross or willful misconduct materially damaging to the
business of Employer (it being understood, however, that neither conduct
pursuant to Executive's exercise of his good faith business judgment nor
unintentional physical damage to any property of Employer by Executive shall be
a ground for such a determination by the Board), or (c) if Executive has failed,
without reasonable cause, to follow reasonable written instructions of the Board
or the Chief Executive Officer or President of Employer consistent with
Executive's position as Executive Vice President and Chief Financial Officer of
Employer and, after written notice from Employer of such failure, Executive at
any time thereafter again so fails.
(B) Executive, by written notice to Employer, may terminate his
employment with Employer immediately for good reason. For purposes of this
Subsection 9(B), "good reason" for termination shall mean a good faith
determination by Executive, in Executive's sole and absolute judgment, that any
one or more of the following events has occurred, without Executive's express
written consent:
(1) after a Change of Control, a change in Executive's reporting
responsibilities, titles or offices as in effect immediately prior to
the Change of
4
Control, or any removal of Executive from, or any failure to re-elect
Executive to, any of Executive's positions that he held immediately
prior to the Change of Control, which has the effect of diminishing
Executive's responsibility or authority;
(2) after a Change of Control, a reduction by Employer in
Executive's Base Compensation as in effect immediately prior to the
Change of Control or as the same may be increased from time to time or
a change in the eligibility requirements or performance criteria under
any bonus, incentive or compensation plan, program or arrangement under
which Executive is covered immediately prior to the Change of Control
which adversely affects Executive;
(3) at the time of a Change of Control, Employer requires
Executive to be based anywhere other than a job location within the
geographic boundaries of the State of Georgia;
(4) after a Change of Control and without replacement by a plan
providing benefits to Executive substantially equal to or greater than
those discontinued, the failure by Employer to continue in effect,
within its maximum stated term, any pension, bonus, incentive, stock
ownership, purchase, option, life insurance, health, accident,
disability, or any other employee benefit plan, program or arrangement
in which Executive is participating at the time of the Change of
Control, or the taking of any action by Employer after a Change of
Control that would adversely affect Executive's participation or
materially reduce Executive's benefits under any of such plans;
(5) after a Change of Control, the taking of any action by
Employer that would materially adversely affect the physical conditions
existing at the time of the Change of Control in or under which
Executive performs his employment duties, provided that Employer may
--------
take action with respect to such conditions after a Change of Control
so long as such conditions are at least commensurate with the
conditions in or under which an officer of Executive's status would
customarily perform his employment duties; or
(6) after a Change of Control, a material change in the
fundamental business philosophy, direction and precepts of Employer and
its subsidiaries, considered as a whole, as the same existed prior to
the Change of Control.
Any event described in Subsection 9(B)(1) through (6) hereof which occurs prior
to a Change of Control but which Executive reasonably demonstrates (x) was at
the request of a third party who has indicated an intention, or taken steps
reasonably calculated, to effect a Change of Control or (y) otherwise arose in
connection with, or in anticipation of, a Change of Control which actually
occurs, shall constitute good reason for purposes hereof, notwithstanding that
it occurred prior to a Change of Control.
5
(C) Executive, upon ninety (90) days written notice to Employer, may
terminate his employment with Employer without good reason.
(D) Executive's employment with Employer shall terminate in the event
of Executive's death or disability. For purposes of this Agreement, "disability"
shall be defined as Executive's inability by reason of illness or other physical
or mental incapacity to perform the duties required by his employment for any
consecutive one hundred eighty (180) day period.
(E) A "Change of Control" shall mean any of the following events:
(1) the merger or consolidation of Employer with, or the sale
of all or substantially all of the assets of Employer to, any person or
entity or group of associated persons or entities;
(2) the direct or indirect beneficial ownership, in the
aggregate, of securities of Employer representing twenty-five percent
(25%) or more of the total combined voting power of Employer's then
issued and outstanding securities by any person or entity, or group of
associated persons or entities acting in concert, not affiliated
(within the meaning of the Securities Act of 1933, as amended) with
Employer as of the date hereof; provided, however, that the Board may,
-------- -------
at any time and in its sole discretion, increase the ownership
percentage threshold of this Subsection 9(E)(2) to an amount not
exceeding forty percent (40%);
(3) the shareholders of Employer approve any plan or proposal
for the liquidation or dissolution of Employer; or
(4) a change in the composition of the Board at any time
during any consecutive twenty-four (24) month period such that the
"Continuity Directors" cease for any reason to constitute at least a
seventy percent (70%) majority of the Board. For purposes of this
Agreement, "Continuity Directors" means those members of the Board who
either:
(a) were directors at the beginning of such
consecutive twenty-four (24) month period; or
(b) were elected by, or on the nomination or
recommendation of, at least a two-thirds (2/3) majority of the
Board.
10. Compensation Upon Termination. In the event of termination of
-----------------------------
Executive's employment with Employer pursuant to Section 9 hereof, compensation
shall continue to be paid by Employer to Executive as follows:
(A) In the event of a termination pursuant to Subsection 9(A) or
Subsection 9(C) hereof, compensation provided for herein (including Base
Compensation and an Annual
6
Bonus) shall continue to be paid, and Executive shall continue to participate in
the employee benefit, retirement, compensation plans and other perquisites as
provided in Section 6 hereof, through and including the Date of Termination (as
hereinafter defined) specified in the Notice of Termination (as hereinafter
defined). Any benefits payable under insurance, health, retirement and bonus
plans as a result of Executive's participation in such plans through the Date of
Termination specified in the Notice of Termination shall be paid when due under
such plans.
(B) In the event of a termination pursuant to Subsection 9(B) hereof,
compensation provided for herein (including Base Compensation and an Annual
Bonus) shall continue to be paid, and Executive shall continue to participate in
the employee benefit, retirement, compensation plans and other perquisites as
provided in Section 6 hereof, through the Date of Termination specified in the
Notice of Termination, and any benefits payable under insurance, health,
retirement and bonus plans as a result of Executive's participation in such
plans through the Date of Termination specified in the Notice of Termination
shall be paid when due under those plans. In addition, if the event of
termination pursuant to Subsection 9(B) hereof occurs within twelve (12) months
after the date of a Change of Control, then, subject to the terms of Section 13
hereof, (1) Executive shall be entitled to continue to receive from Employer for
one (1) additional 12-month period his Base Compensation at the rates in effect
at the time of termination plus an Annual Bonus in an amount equal to at least
forty percent (40%) of such Base Compensation as of the date of the event of
termination, payable in accordance with Employer's standard payment practices
then existing; (2) Executive shall be entitled to continue to participate for
one (1) additional 12-month period in each employee welfare benefit plan (as
such term is defined in the Employment Retirement Income Security Act of 1974,
as amended) in which Executive was entitled to participate immediately prior to
the date of his termination, unless an essentially equivalent and no less
favorable benefit is provided by a subsequent employer of Executive, provided
--------
that if the terms of any such employee welfare benefit plan or applicable laws
do not permit continued participation by Executive, Employer will arrange to
provide to Executive a benefit substantially similar to, and no less favorable
than, the benefit he was entitled to receive under such plan at the end of the
period of coverage; (3) Employer shall contribute the maximum contributions
allowable under Employer's Money Purchase Pension Plan and 401(k) Profit Sharing
Plan, or any successor plans thereto, for the benefit of Executive; and (4)
Executive shall be entitled to receive payment from Employer for reasonable
relocation expenses if Executive relocates within five hundred (500) miles of
Moultrie, Georgia if such relocation occurs within one hundred eighty (180) days
after the Date of Termination specified in the Notice of Termination.
(C) In the event of a termination pursuant to Subsection 9(D) hereof,
compensation provided for herein (including Base Compensation and an Annual
Bonus) shall continue to be paid, and Executive shall continue to participate in
the employee benefit, retirement, and compensation plans and other perquisites
as provided in Section 6 hereof, (1) in the event of Executive's death, through
the date of death, or (2) in the event of Executive's disability, through the
Date of Termination specified in the Notice of Termination. Any benefits payable
under insurance, health, retirement and bonus plans as a result of
7
Executive's participation in such plans through the date of death or the Date of
Termination specified in the Notice of Termination, as the case may be, shall be
paid when due under those plans.
(D) Employer will permit Executive or his personal representative(s) or
heirs, during a period of ninety (90) days following the Date of Termination of
Executive's employment by Employer (as specified in the Notice of Termination)
for the reasons set forth in Subsection 9(B) hereof, to purchase all of the
stock of Employer that would be issuable under all outstanding stock options, if
any, previously granted by Employer to Executive under any Employer stock option
plan then in effect, whether or not such options are then exercisable, at a cash
purchase price equal to the purchase price as set forth in such outstanding
stock options.
11. Restrictive Covenants.
---------------------
(A) Executive acknowledges that (1) Employer has separately bargained and
paid additional consideration for the restrictive covenants herein; and (2)
Employer will provide certain benefits to Executive hereunder in reliance on
such covenants in view of the unique and essential nature of the services
Executive will perform on behalf of Employer and the irreparable injury that
would befall Employer should Executive breach such covenants.
(B) Executive further acknowledges that his services are of a special,
unique and extraordinary character and that his position with Employer will
place him in a position of confidence and trust with employees of Employer and
its subsidiaries and affiliates and with Employer's other constituencies and
will allow him access to trade secrets and confidential information concerning
Employer and its subsidiaries and affiliates.
(C) Executive further acknowledges that the type and periods of
restrictions imposed by the covenants in this Section 11 are fair and reasonable
and that such restrictions will not prevent Executive from earning a livelihood.
(D) Having acknowledged the foregoing, Executive covenants and agrees with
Employer as follows:
(1) While Executive is employed by Employer and for a period of two
(2) years after termination of such employment for any reason or for no
reason (and whether or not pursuant to or in accordance with the terms of
this Agreement), Executive shall not divulge or furnish any trade secrets
(as defined in (S)10-1-761 of the Official Code of Georgia Annotated) of
Employer or any confidential information acquired by him while employed by
Employer concerning the policies, plans, procedures or customers of
Employer to any person, firm or corporation, other than Employer or upon
its written request, or use any such trade secret or confidential
information (which shall at all times remain the property of Employer)
directly or indirectly for Executive's own benefit or for the benefit of
any person, firm or corporation other than Employer.
8
(2) For a period of one (1) year after termination of
Executive's employment (a) by Employer for any of the reasons set forth
in Subsection 9(A) of this Agreement, or (b) by Executive pursuant to
Section 4 or Subsection 9(C) of this Agreement, Executive shall not
directly or indirectly provide banking or bank-related services to, or
solicit the banking or bank-related business of, any customer of
Employer or any of its subsidiaries at the time of such provision of
services or solicitation which Executive served either alone or with
others while employed by Employer in any city, town, borough, township,
village or other place in which Executive performed services for
Employer while employed by it, or assist any actual or potential
competitor of Employer or any of its subsidiaries to provide banking or
bank-related services to or solicit any such customer's banking or
bank-related business in any such place.
(3) While Executive is employed by Employer and for a
period of two (2) years after termination of Executive's employment (a)
by Employer for any of the reasons set forth in Subsection 9(A) of this
Agreement, or (b) by Executive pursuant to Section 4 or Subsection 9(C)
of this Agreement, Executive shall not, directly or indirectly, as
principal, agent, or trustee, or through the agency of any corporation,
partnership, trade association, agent or agency, engage in any banking
or bank-related business or venture which competes with the business of
Employer as conducted during Executive's employment by Employer within
the geographic limitations of the State of Georgia.
(4) If Executive's employment by Employer is terminated for
reasons other than those set forth in Subsection 9(B) of this
Agreement, and Executive subsequently (a) provides banking or
bank-related services to, or solicits the banking or bank-related
business of, any customer of Employer or any of its subsidiaries at the
time of such provision of services or solicitation which Executive
served either alone or with others while employed by Employer in any
city, town, borough, township, village or other place in which
Executive performed services for Employer while employed by it, or
assists any actual or potential competitor of Employer or any of its
subsidiaries to provide banking or bank-related services to or solicit
any such customer's banking or bank-related business in any such place,
or (b) engages, directly or indirectly, as principal, agent, or
trustee, or through the agency of any corporation, partnership, trade
association, agent or agency, with any banking or bank-related business
or venture which competes with the business of Employer as conducted
during Executive's employment by Employer within the geographic
limitations of the State of Georgia, then Employer may immediately
terminate and shall not be required to continue on behalf of the
Executive or his dependents and beneficiaries any compensation provided
for herein (including Base Compensation and any Annual Bonus) and any
employee benefit, retirement and compensation plans and other
prerequisites provided in Section 6 hereof other than those benefits
that Employer may be required to maintain for Executive under
applicable federal or state law.
9
(5) If Executive's employment by Employer is terminated for any
of the reasons set forth in Subsection 9(B) of this Agreement, then
Executive may thereafter (a) provide banking or bank-related services
to, or solicit the banking or bank-related business of, any customer of
Employer or any of its subsidiaries at the time of such provision of
services or solicitation which Executive served either alone or with
others while employed by Employer in any location within the geographic
limitations of the State of Georgia, or assist any actual or potential
competitor of Employer or any of its subsidiaries to provide banking or
bank-related services to or solicit any such customer's banking or
bank-related business in any such place, or (b) engage, directly or
indirectly, as principal, agent or trustee, or through the agency of
any corporation, partnership, trade association, agent or agency, with
any banking or bank-related business or venture which competes with the
business of Employer as conducted during Executive's employment by
Employer within the geographic limitations of the State of Georgia;
provided, however, that if Executive engages in any such activities
-------- -------
after a termination under Subsection 9(B) hereof, then Employer may
immediately terminate and shall not be required to continue on behalf
of the Employee or his dependents and beneficiaries any compensation
provided for herein (including, without limitation, Base Compensation,
any Annual Bonus and any payments pursuant to Subsection 10(B) hereof)
and any employee benefit, retirement and compensation plans and other
perquisities provided in Section 6 hereof other than those benefits
that Employer may be required to maintain for Executive under
applicable federal or state law.
(6) If Executive's employment by Employer is terminated for any
reason or for no reason, Executive will turn over immediately
thereafter to Employer all business correspondence, letters, papers,
reports, customer lists, financial statements, credit reports or other
confidential information or documents of Employer or its affiliates in
the possession or control of Executive, all of which writings are and
will continue to be the sole and exclusive property of Employer or its
affiliates, as the case may be.
(E) Executive acknowledges that irreparable loss and injury would
result to Employer upon the breach of any of the covenants contained in this
Section 11 and that damages arising out of such breach would be difficult to
ascertain. Executive hereby agrees that, in addition to all other remedies
provided at law or in equity, Employer may petition and obtain from a court of
law or equity, without the necessity of proving actual damages and without
posting any bond or other security, both temporary and permanent injunctive
relief to prevent a breach by Executive of any covenant contained in this
Section 11, and shall be entitled to an equitable accounting of all earnings,
profits and other benefits arising out of any such breach. In the event that the
provisions of this Section 11 should ever be deemed to exceed the time,
geographic or any other limitations permitted by applicable law, then such
provisions shall be deemed reformed to the maximum extent permitted thereby.
10
12. Notice of Termination and Date of Termination. Any termination of
---------------------------------------------
Executive's employment with Employer as contemplated by Section 9 hereof, except
in the circumstances of Executive's death, shall be communicated by written
notice of termination (the "Notice of Termination") by the terminating party to
the other party hereto. Any Notice of Termination given pursuant to Subsections
9(A), 9(B) or 9(D) hereof shall indicate the specific provisions of this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for such termination. For purposes of
this Agreement, "Date of Termination" shall mean: (A) if Executive's employment
is terminated because of disability, thirty (30) days after Notice of
Termination is given (unless Executive shall have returned to the performance of
Executive's duties on a full-time basis during such thirty (30) day period); or
(B) if Executive's employment is terminated for cause, good reason or pursuant
to Subsection 9(C) hereof, the date specified in the Notice of Termination;
provided, however, that if within thirty (30) days after any such Notice of
-------- -------
Termination is given, the party receiving such Notice of Termination notifies
the other party that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally resolved, either
by mutual agreement of the parties or by a final judgment, order or decree of a
court of competent jurisdiction (the time for appeal therefrom having expired
and no appeal having been perfected).
13. Excess Parachute Payments and One Million Dollar Deduction Limit.
----------------------------------------------------------------
(A) Notwithstanding anything contained herein to the contrary, if any
portion of the payments and benefits provided hereunder and benefits provided
to, or for the benefit of, Executive under any other plan or agreement of
Employer (such payments or benefits are collectively referred to as the
"Payments") would be subject to the excise tax (the "Excise Tax") imposed under
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or
would be nondeductible by Employer pursuant to Section 280G of the Code, the
Payments shall be reduced (but not below zero) if and to the extent necessary so
that no portion of any Payment to be made or benefit to be provided to Executive
shall be subject to the Excise Tax or shall be nondeductible by Employer
pursuant to Section 280G of the Code (such reduced amount is hereinafter
referred to as the "Limited Payment Amount"). Unless Executive shall have given
prior written notice specifying a different order to Employer to effectuate the
Limited Payment Amount, Employer shall reduce or eliminate the Payments, by
first reducing or eliminating those payments or benefits which are not payable
in cash and then by reducing or eliminating cash payments, in each case in
reverse order beginning with payments or benefits which are to be paid the
farthest in time from the Determination (as hereinafter defined). Any notice
given by Executive pursuant to the preceding sentence shall take precedence over
the provisions of any other plan, arrangement or agreement governing Executive's
rights and entitlements to any benefits or compensation.
(B) An initial determination as to whether the Payments shall be
reduced to the Limited Payment Amount pursuant to the Code and the amount of
such Limited Payment Amount shall be made by an accounting firm at Employer's
expense selected by Employer which is designated as one of the five largest
accounting firms in the United States (the "Accounting Firm"). The Accounting
Firm shall provide its determination (the
11
"Determination"), together with detailed supporting calculations and
documentation to Employer and Executive within thirty (30) days of the
Termination Date, if applicable, and if the Accounting Firm determines that no
Excise Tax is payable by Executive with respect to a Payment or Payments, it
shall furnish Executive with an opinion reasonably acceptable to Executive that
no Excise Tax will be imposed with respect to any such Payment or Payments.
Within ten (10) days of the delivery of the Determination to Executive,
Executive shall have the right to dispute the Determination (the "Dispute"). If
there is no Dispute, the Determination shall be binding, final and conclusive
upon Employer and Executive subject to the application of Subsection 13(C)
below.
(C) As a result of the uncertainty in the application of Sections
4999 and 280G of the Code, it is possible that the Payments to be made to, or
provided for the benefit of, Executive either have been made or will not be made
by Employer which, in either case, will be inconsistent with the limitations
provided in Section 13(A) hereof (hereinafter referred to as an "Excess Payment"
or "Underpayment", respectively). If it is established pursuant to a final
determination of a court or an Internal Revenue Service (the "IRS") proceeding
which has been finally and conclusively resolved that an Excess Payment has been
made, such Excess Payment shall be deemed for all purposes to be a loan to
Executive made on the date Executive received the Excess Payment, and Executive
shall repay the Excess Payment to Employer on demand (but not less than ten (10)
days after written notice is received by Executive), together with interest on
the Excess Payment at the "Applicable Federal Rate" (as defined in Section
1274(d) of the Code) from the date of Executive's receipt of such Excess Payment
until the date of such repayment. In the event that it is determined (1) by the
Accounting Firm, Employer (which shall include the position taken by Employer,
or together with its consolidated group, on its federal income tax return) or
the IRS; (2) pursuant to a determination by a court; or (3) upon the resolution
of the Dispute to Executive's satisfaction, that an Underpayment has occurred,
Employer shall pay an amount equal to the Underpayment to Executive within ten
(10) days of such determination or resolution, together with interest on such
amount at the Applicable Federal Rate from the date such amount would have been
paid to Executive until the date of payment.
(D) Notwithstanding anything contained herein to the contrary, if any
portion of the Payments would be nondeductible by Employer pursuant to Section
162(m) of the Code, the Payments to be made to Executive in any taxable year of
Employer shall be reduced (but not below zero) if and to the extent necessary so
that no portion of any Payment to be made or benefit to be provided to Executive
in such taxable year of Employer shall be nondeductible by Employer pursuant to
Section 162(m) of the Code. The amount by which any Payment is reduced pursuant
to the immediately preceding sentence, together with interest thereon at the
Applicable Federal Rate, shall be paid by Employer to Executive on or before the
fifth business day of the immediately succeeding taxable year of Employer,
subject to the application of the limitations of the immediately preceding
sentence and this Section 13. Unless Executive shall have given prior written
notice specifying a different order to Employer to effectuate this Section 13,
Employer shall reduce or eliminate the Payments in any one taxable year of
Employer by first reducing or eliminating those payments or benefits which are
not payable in cash and then by reducing or eliminating cash
12
payments, in each case in reverse order beginning with payments or benefits
which are to be paid the farthest in time from the Section 162(m) Determination
(as hereinafter defined). Any notice given by Executive pursuant to the
immediately preceding sentence shall take precedence over the provisions of any
other plan, arrangement or agreement governing Executive's rights and
entitlements to any benefits or compensation.
(E) The determination as to whether the Payments shall be reduced
pursuant to Section 13(D) hereof and the amount of the Payments to be made in
each taxable year after the application of Section 13(D) hereof shall be made by
the Accounting Firm at Employer's expense. The Accounting Firm shall provide its
determination (the "Section 162(m) Determination"), together with detailed
supporting calculations and documentation to Employer and Executive within
thirty (30) days of the termination date specified in the Notice of Termination.
The Section 162(m) Determination shall be binding, final and conclusive upon
Employer and Executive.
14. Payments After Death. Should Executive die after termination of
--------------------
his employment with Employer while any amounts are payable to him hereunder,
this Agreement shall inure to the benefit of and be enforceable by Executive's
executors, administrators, heirs, distributees, devisees and legatees, and all
amounts payable hereunder shall be paid in accordance with the terms of this
Agreement to Executive's devisee, legatee or other designee or, if there is no
such designee, to his estate.
15. Full Settlement and Legal Expenses. The respective obligations of
----------------------------------
the parties hereto to make payments or otherwise to perform hereunder shall not
be affected by any rights of set-off, counterclaim, recoupment, defense or other
claim, right or action which one party hereto may have against the other party
hereto. In no event shall Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts which may be payable
to Executive by Employer hereunder. If any legal action, proceeding in
arbitration or other proceeding is brought for the enforcement of this
Agreement, or because of any alleged dispute, breach, default or
misrepresentation in connection with any provision of this Agreement, the
successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees, court costs and all expenses incurred in that action
or proceeding, even if not taxable as court costs, plus in each case interest at
the Applicable Federal Rate, in addition to any other relief to which such party
or parties may be entitled.
16. Notices. For purposes of this Agreement, notices and all other
-------
communications provided for herein shall be in writing and shall be deemed to
have been given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Executive: W. Xxxxx Xxxx, Xx.
0 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
13
If to Employer: ABC Bancorp
00 0/xx/ Xxxxxx, X.X.
Xxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
or to such address as either party hereto may have furnished to the other party
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
17. Governing Law. The validity, interpretation and performance of
-------------
this Agreement shall be governed by the laws of the State of Georgia, without
giving effect to the conflicts of laws principles thereof.
18. Successors. Employer shall require any successor (whether direct
----------
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of Employer, by agreement in form
and substance reasonably satisfactory to Executive, to expressly assume and
agree to perform this Agreement in the same manner and same extent that Employer
would be required to perform it if no such succession had taken place. Failure
of Employer to obtain such agreement prior to the effectiveness of any such
succession shall be a material, intentional breach of this Agreement and shall
entitle Executive to terminate his employment with Employer for good reason
pursuant to Subsection 9(B) hereof. As used in this Agreement, "Employer" shall
mean Employer as hereinbefore defined and any successor to its business or
assets as aforesaid.
19. Modification. No provision of this Agreement may be modified,
------------
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Executive and Employer. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of dissimilar provisions or conditions at the same or
any prior subsequent time. No agreements or representation, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement.
20. Severability. The invalidity or unenforceability of any
------------
provisions of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect.
21. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same Agreement.
22. Assignment. This Agreement is personal in nature, and neither
----------
party hereto shall, without the prior written consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder except as
provided in Sections 14 and 18 above. Without limiting the foregoing,
Executive's right to receive compensation hereunder shall not be
14
assignable or transferable, whether by pledge, creation of a security interest
or otherwise, other than a transfer by his will or by the laws of descent or
distribution as set forth in Section 14 hereof, and in the event of any
attempted assignment or transfer contrary to this Section 22, Employer shall
have no liability to pay any amounts so attempted to be assigned or transferred.
23. Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the parties hereto and supersedes all prior agreements,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
[Signatures Next Page]
15
IN WITNESS WHEREOF, Executive has executed, sealed and delivered this
Agreement, and Employer has caused this Agreement to be executed, sealed and
delivered, all as of the day and year first above set forth.
ABC BANCORP
By:___________________________________
[Corporate Seal] Xxxxxxx X. Xxxxxxxxx, Chairman and
Chief Executive Officer
Attest:___________________________________
Xxxxx X. Xxxxx, Corporate Secretary
_________________________________(SEAL)
W. XXXXX XXXX, XX.
00
