EXHIBIT 10.34
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into effective as of the
1st day of August, 2005 (the "Effective Date"), by and among GWINNETT BANKING
COMPANY, a Georgia chartered commercial bank ("Employer"); and Xxxx X. Xxxxx
("Executive").
WITNESSETH:
WHEREAS, as of October 31, 1997, Employer commenced operations as a Georgia
chartered commercial bank chartered under the provisions of the Financial
Institutions Code of Georgia, with its deposits insured by the Federal Deposit
Insurance Corporation, pursuant to the provisions of the Federal Deposit
Insurance Act;
WHEREAS, the Board of Directors of Employer considers the establishment and
maintenance of highly competent and skilled management personnel to be essential
to protecting and enhancing its best interests, and is desirous of inducing
Executive to become and remain in the employ of Employer, subject to the terms
and conditions hereof;
WHEREAS, Executive is desirous of becoming employed by and remaining in the
employ of Employer, 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 Executive by the Employer;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and legal
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
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 Executive 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, financial institution,
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 GBC Bancorp, Inc. (the "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 financial institution, corporation or other
organization; or
(iii) Upon the consummation of any transaction in which Employer,
or substantially all of the assets of Employer, 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 Employer 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.
(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
Executive by Employer; or, if no such coverage is then being provided, the
inability of Executive to perform the material aspects of Executive'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 Employer and Executive.
(d) "Event of Termination" shall mean the termination by Employer of
Executive's employment under this Agreement by written notice delivered to
Executive 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 paragraph 6(a)
of this Agreement.
(e) "Incentive Compensation" shall mean that compensation payable or
paid to Executive 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) and the regulations and rulings thereunder and, to the
extent included in such definition, shall include all payments to Executive
in the nature of compensation which are contingent on a change in ownership
or effective control of Employer or in the ownership of a substantial
portion of the assets of Employer, including the accelerated vesting of any
stock options granted to Executive.
(g) "Termination for Cause" shall have the meaning provided in
paragraph 7(a) of this Agreement.
2. Employment. Employer agrees to employ Executive, and Executive agrees to
accept such employment, as Senior Vice President and Chief Financial Officer of
Employer, for the period stated in paragraph 3(a) hereof (unless earlier
terminated as set forth herein) and upon the other terms and conditions herein
provided. Executive agrees to perform faithfully such services as are reasonably
consistent with her position and shall from time to time be assigned to her by
the Board of Directors of Employer in a trustworthy and businesslike manner for
the purpose of advancing the interests of Employer. The Board of Directors of
Employer may also from time to time change Executive's position or alter her
duties and responsibilities and assign a new position or new duties and
responsibilities that are similar in scope and nature to Executive's existing
position, duties and responsibilities without invalidating this Agreement or
effecting the termination of Executive. At all times, Executive shall manage and
conduct the business of Employer in accordance with the policies established by
the Board of Directors of Employer, and in compliance with applicable
regulations promulgated by governing regulatory agencies. Responsibility for the
supervision of Executive shall rest with the Board of Directors of Employer,
which shall review Executive's performance at least annually. The Board of
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Directors of Employer shall also have the authority to terminate Executive,
subject to the provisions outlined in paragraphs 6 and 7 of this Agreement.
3. Term and Duties.
(a) Term of Employment. This Agreement and the period of Executive's
employment under this Agreement shall be deemed to have commenced as of the
Effective Date and shall continue for a period of twelve (12) full calendar
months thereafter, unless earlier terminated pursuant to this Agreement or
unless Executive dies before the end of such twelve (12) months, in which
case the period of employment shall be deemed to continue until the end of
the month of such death. The initial term of this Agreement shall
automatically renew each day after the Effective Date so that the term
remains a twelve (12) month term until either party provides written notice
to the other of the intent the automatic renewals shall cease, in which
case the term shall expire twelve (12) months after the date the written
notice is so provided.
(b) Performance of Duties. During the period of employment hereunder,
except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Executive shall devote substantially all of
her business time, attention, skill, and efforts to the faithful
performance of her duties hereunder. Executive 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 Employer, or unfavorably affect the
performance of Executive's duties pursuant to this Agreement.
(c) Office of Executive. The office of Executive shall be located at
the Employer's office in Lawrenceville, Georgia, or at such other location
within the State of Georgia as Employer may from time to time designate;
provided, however, that, in the event such relocation is to an office more
than fifty (50) miles from Lawrenceville, Georgia, and Executive elects to
move her principal residence, Employer shall reimburse Executive for all
her reasonable moving expenses.
(d) No Other Agreement. Executive shall have no employment contract or
other written or oral agreement concerning employment with any entity or
person other than Employer during the term of her employment under this
Agreement.
(e) Uniqueness of Executive's Services. Executive hereby represents
that the services to be performed by her under the terms of this Agreement
are of a special, unique, 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, Executive expressly agrees that Employer, in addition to any
rights or remedies which Employer may possess, shall be entitled to
injunctive and other equitable relief to prevent the breach of this
Agreement by Executive.
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4. Compensation.
(a) Salary. Subject to the provisions of paragraphs 6 and 7 hereof,
Employer shall pay Executive, as compensation for serving as Senior Vice
President and Chief Financial Officer of Employer, an initial Base Salary
of $100,000.00; such initial Base Salary, or any increased Base Salary,
shall be payable in substantially equal installments in accordance with
Employer's normal pay practices, but not less frequently than monthly.
Executive's Base Salary and any Incentive Compensation (as defined in
paragraph 4(b) hereof) shall be reviewed and approved at least annually by
the Board of Directors of Employer's, or any committee designated thereby.
Said Board or committee, if warranted in their discretion, may increase
Executive's Base Salary to reflect Executive's performance.
(b) Incentive Compensation. During the term of this Agreement and in
addition to the aforesaid Base Salary, Executive shall be entitled to such
additional Incentive Compensation as may be awarded from time to time, in
its discretion, by the Board of Directors of Employer or any committee
designated thereby. It is understood that any Incentive Compensation to be
awarded to Executive shall be based on the attainment by Employer of
certain performance goals established by the Board of Directors relating to
loan production, asset quality, deposit growth, and earnings and profits.
Notwithstanding anything contained in this Agreement to the contrary, any
increase to Executive's Base Salary and any Incentive Compensation paid to
Executive 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 Employer and such regulatory
agencies, (ii) consistent with the safe and sound operation of Employer,
(iii) closely monitored by the Board of Directors of Employer, 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.
(c) Reimbursement of Expenses; Provision of Business Development
Expenses. Employer shall pay or reimburse Executive for all reasonable
travel and other expenses incurred by Executive in the performance of her
obligations and duties under this Agreement, as provided in the applicable
policies of Employer, as currently adopted or as may be adopted in the
future by the Board of Directors of Employer.
(d) "Golden Parachute" Provision. Notwithstanding anything contained
in this Agreement to the contrary, any payments made to Executive pursuant
to this Agreement, or otherwise, are subject to and conditioned upon their
compliance with 12 U.S.C. Section 1828(k) and any regulations promulgated
thereunder.
5. Vacation and Sick Leave. Executive shall be entitled, without loss of
pay, to absent herself voluntarily from the performance of her duties under this
Agreement in accordance with the terms set forth below, all such voluntary
absences to count as vacation time, provided that:
(a) Executive shall be entitled to an annual vacation in accordance
with the policies that the Board of Directors of Employer periodically
establishes for senior management employees of Employer.
(b) Executive shall not receive any additional compensation from
Employer on account of her failure to take a vacation, and Executive shall
not accumulate unused vacation
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from one fiscal year to the next, except in either case to the extent
authorized by the Board of Directors of Employer.
(c) In addition to the aforesaid paid vacations, Executive shall be
entitled, without loss of pay, to absent herself voluntarily from the
performance of her employment obligations with Employer for such additional
periods of time and for such valid and legitimate reasons as the Board of
Directors of Employer may in its discretion approve. It is also provided
that the Board of Directors of Employer may grant to Executive a leave or
leaves of absence, with or without pay, at such time or times and upon such
terms and conditions as the Board of Directors of Employer in its
discretion determines.
(d) Executive shall be further entitled to an annual sick leave
benefit as may be established by the Board of Directors of Employer.
6. Benefits Payable Upon Disability.
(a) Disability Benefits. In the event of the Disability of Executive,
Employer shall continue to pay Executive 100% of Executive's then current
Base Salary pursuant to paragraph 4(a) during the first twelve (12) months
of a continuous period of disability. It is provided, however, that in the
event Executive is disabled for a continuous period exceeding twelve (12)
months, Employer may, at its election, terminate this Agreement, in which
event payment of Executive's Base Salary shall cease.
(b) Disability Benefit Offset. Any amounts payable under paragraph
6(a) hereof shall be reduced by any amounts paid to Executive under any
other disability program or policy of insurance maintained by Employer.
7. Payments to Executive Upon Termination of Employment. The Board of
Directors of Employer may terminate Executive's employment under this Agreement
at any time; but any termination other than Termination for Cause shall not
prejudice Executive's right to compensation or other benefits under this
Agreement. Executive may voluntarily terminate her employment under this
Agreement. The rights and obligations of Employer and Executive in the event of
such termination are set forth in this paragraph 7 as follows:
(a) Termination for Cause. Executive shall have no right to
compensation or other benefits for any period after a Termination for
Cause. Termination for Cause shall be determined by the Board of Directors
of Employer in the reasonable exercise of its discretion and acting in good
faith, and shall include termination because of Executive's personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duties
involving personal profit; intentional failure to perform stated duties;
willful violation of any law, rule, or regulation (other than traffic
violations or similar offenses), or a final cease-and-desist order; the
regulatory suspension or removal of Executive as defined in paragraphs 8(a)
and (b) hereof; the failure of Executive to follow reasonable written
instructions of the Board of Directors of Employer; or a material breach by
Executive of any provision of this Agreement. The termination of employment
of Executive shall not be deemed to be a Termination for Cause unless and
until there shall have been delivered to Executive a copy of a resolution
duly adopted by the affirmative vote of not less than two-thirds of the
entire membership of the Board of Directors of Employer at a meeting of the
Board called and held for such purpose (after at least thirty (30) days'
prior notice of such meeting is provided to Executive and Executive is
given an opportunity, together with counsel, to be heard before the Board
of Directors), finding that, in the
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good faith opinion of the Board of Directors, Executive is guilty of the
conduct described herein and specifying the particulars thereof in detail.
Said Termination for Cause shall not be effective until thirty (30) days
after such resolution is adopted, during which time Executive shall be
afforded the opportunity to petition the Board of Directors for
reconsideration of such resolution. The Board of Directors of Employer, in
its discretion, may suspend Executive, with pay, for all or any portion of
the period of time from the delivery of the notice described herein until
the effective time of the Termination for Cause.
(b) Event of Termination Without Change of Control. Upon the
occurrence of an Event of Termination, other than after a Change of Control
as provided in paragraph 7(c) hereof, and if Executive faithfully abides by
all of the covenants contained in Section 9 of this Agreement, Employer
shall pay to Executive, or in the event of her subsequent death, to her
designated beneficiary or beneficiaries, or to her estate, as the case may
be, as liquidated damages, in lieu of all other claims, a severance payment
equal to one (1) times Executive's Total Compensation (defined as the sum
of the then current Base Salary plus any Incentive Compensation paid to
Executive during the immediately preceding twelve (12) months), to be paid
in equal installments and in accordance with Employer's regular payroll
practices for the twelve (12) month period following the date of said Event
of Termination.
(c) Event of Termination in Connection With a Change of Control. If,
during the term of this Agreement and within one (1) year immediately
following a Change of Control or within six (6) months immediately prior to
such Change of Control, Executive's employment with Employer under this
Agreement is terminated by an Event of Termination and if Executive
faithfully abides by all of the covenants contained in Section 9 of this
Agreement, then Employer shall pay to Executive, or in the event of her
subsequent death, to her designated beneficiary or beneficiaries, or to her
estate, as the case may be, as liquidated damages, in lieu of all other
claims, a severance payment equal to one (1) times Executive's Total
Compensation paid to Executive during the immediately preceding twelve (12)
months, to be paid in equal installments and in accordance with Employer's
regular payroll practices for the twelve (12) month period following the
date of said Event of Termination.
(d) Termination of Employment for Good Reason. If (1) during the term
of this Agreement and within one (1) year immediately following a Change of
Control or within six (6) months immediately prior to such Change of
Control, the status, character, capacity, location, or circumstances of
Executive's employment as provided in paragraphs 2, 3, 4 and 6 of this
Agreement have been materially and adversely altered by Employer, whether
by
(i) any material breach of this Agreement by Employer (including
the failure of Employer to comply with paragraphs 2, 3, 4, 5 and 6 of
this Agreement);
(ii) any material and adverse change in the status,
responsibilities or prerequisites of Executive;
(iii) any assignment of duties materially and adversely
inconsistent with Executive's position and duties described in this
Agreement; or
(iv) the failure of Employer to assign this Agreement to a
successor in interest or the failure of the successor in interest to
explicitly assume and agree to be bound by this Agreement,
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and (2) Executive terminates her employment under this Agreement for that
reason and (3) Executive faithfully abides by all of the covenants
contained in Section 9 of this Agreement, then Employer shall pay to
Executive, or in the event of her subsequent death, her designated
beneficiary or beneficiaries, or her estate, as the case may be, as
liquidated damages, in lieu of all other claims, a severance payment equal
to one (1) times Executive's Total Compensation paid to Executive during
the immediately preceding twelve (12) months, to be paid in equal
installments and in accordance with Employer's regular payroll practices
for the twelve (12) month period following the date of said Event of
Termination. Notwithstanding anything in this Section 7(d) to the contrary,
Executive and Employer agree that a mere change in Executive's title(s)
with Employer shall not constitute a material and adverse alteration in
Executive's status, character, capacity, location, or circumstances of
employment with Employer for purposes of this section as long as
Executive's underlying duties and responsibilities with Employer are not
materially and adversely changed or altered as well.
(e) Compliance with Protective Covenants. Notwithstanding anything to
the contrary herein, in the event Executive fails or ceases to fully abide
by all of the covenants contained in Section 9 of this Agreement, or in the
event any court of competent jurisdiction deems any such covenant(s) to be
invalid or unenforceable, then Executive acknowledges and agrees that such
circumstances shall constitute a failure of consideration and Executive
shall not be entitled to any compensation pursuant to Section 7(b), (c), or
(d). If Executive has already received any such compensation at the time
she violates any such covenant, Employer shall immediately be entitled to
recover all such amounts in full from Executive.
(f) Limits on Payments. In no event shall the payments described in
paragraphs 7(c) and 7(d) exceed the amount permitted by Section 280G of the
Internal Revenue Code (as amended). Therefore, with respect to the
payment(s) described in paragraphs 7(c) and 7(d) only, 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 the Severance Amount would result in a
parachute payment (as determined under Section 280G), then the Severance
Amount shall not be greater than an amount equal to 2.99 multiplied by
Executive's base amount (as determined under Section 280G) for the base
period (as determined under Section 280G). In the event the Severance
Amount is required to be reduced pursuant to this paragraph 7(f), Executive
shall be entitled to determine which portions of the Severance Amount are
to be reduced so that the Severance Amount satisfies the limit set forth in
the preceding sentence. Executive'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 Executive was employed by Employer if
Executive has been employed by Employer for less than five years). Should
Executive be assessed any excise tax as a result of any payment of the
Severance Amount that complies with Section 280G, Employer shall pay all
such assessed excise taxes, but shall pay no other taxes assessed against
Executive as a result of the payment of the Severance Amount.
(g) Voluntary Termination of Employment. Executive shall have no right
to compensation or other benefits under this Agreement for any period
following the voluntary termination of Executive's employment by Executive,
except as provided in paragraph 7(d) hereof.
(h) Additional Payments After Termination. In the event that
Executive's employment is terminated pursuant to paragraphs 7(b), (c) or
(d) above, then Employer shall pay Executive an additional amount equal to
Executive's cost of COBRA health continuation
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coverage for Executive and her eligible dependants for the period during
which Executive and her eligible dependants are entitled to receive COBRA
continuation coverage from Employer under the applicable laws, rules and
regulations governing COBRA.
8. Regulatory Suspension.
(a) If Executive is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employer by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. Section 1818(e)(3) or (g)(1), the obligations of Employer under this
Agreement shall be suspended as of the date of service of such notice,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, Employer may in its discretion (i) pay Executive 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. Vested rights of Executive shall not otherwise be affected.
(b) If Executive 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. Section 1818(e)(4) or (g)(1), all obligations of Employer under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the parties hereto shall not be affected.
9. Protective Covenants. As long as Executive is receiving termination
payments from Employer pursuant to paragraph 7 hereof and for the periods
covered by such payments, Executive shall abide by and be bound by the following
Protective Covenants.
(a) Confidential Information and Trade Secrets. During Executive's
employment, the parties acknowledge that Employer shall disclose (and/or
has already disclosed) to Executive for use in Executive's employment, and
that Executive will be provided access to and otherwise make use of,
acquire, create, or add to certain valuable, unique, proprietary, and
secret information of Employer (whether tangible or intangible and whether
or not electronically kept or stored), including financial statements,
drawings, designs, manuals, business plans, processes, procedures,
formulas, inventions, pricing policies, customer and prospect lists and
contacts, contracts, sources and identity of vendors and contractors,
financial information of customers of Employer, and other proprietary
documents, materials, or information indigenous to Employer, relating to
their businesses and activities, or the manner in which Employer does
business, which is valuable to Employer in conducting its business because
the information is kept confidential and is not generally known to
Employer's competitors or to the general public ("Confidential
Information"). Confidential Information does not include information
generally known or easily obtained from public sources or public records
(unless Executive causes said Confidential Information to become generally
known or easily obtained therefrom).
To the extent that the Confidential Information rises to the level of a
trade secret under applicable law, then Executive shall, during Executive's
employment and for so long as said Confidential Information remains a trade
secret under applicable law (or for the maximum period of time otherwise allowed
by applicable law) (i) protect and maintain the confidentiality of such trade
secrets and (ii) refrain from disclosing, copying, or using any such trade
secrets without Employer's prior written consent, except as necessary in
Executive's performance of Executive's duties while employed with Employer.
To the extent that the Confidential Information defined above does not rise
to the level of a trade secret under applicable law, Executive shall, during
Executive's employment and for a period of one (1)
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year following any voluntary or involuntary termination of employment (whether
by Employer or Executive), (i) protect and maintain the confidentiality of the
Confidential Information and (ii) refrain from disclosing, copying, or using any
Confidential Information without Employer's prior written consent, except as
necessary in Executive's performance of Executive's duties while employed with
Employer.
(b) Return of Property of Employer. Upon any voluntary or involuntary
termination of Executive's employment (or at any time upon request of
Employer), Executive agrees to immediately return to Employer all property
of Employer (including but not limited to all documents, electronic files,
records, computer disks or other tangible or intangible things that may or
may not relate to or otherwise comprise Confidential Information or trade
secrets (as defined by applicable law)) that Executive created, used,
possessed or maintained while working for Employer from whatever source and
whenever created, including all reproductions or excerpts thereof. This
provision does not apply to purely personal documents of Executive, but it
does apply to business calendars, Rolodexes, customer lists, contact
sheets, computer programs, disks and their contents and like information
that may contain some personal matters of Executive. Executive acknowledges
that title to all such property is vested in Employer.
(c) Non-Diversion of Business Opportunity. During Executive's
employment with Employer and consistent with Executive's duties and
fiduciary obligations to Employer, Executive shall (i) disclose to Employer
any business opportunity that comes to Executive's attention during
Executive's employment with Employer and that relates to the business of
Employer or otherwise arises as a result of Executive's employment with
Employer and (ii) not take advantage of or otherwise divert any such
opportunity for Executive's own benefit or that of any other person or
entity without prior written consent of Employer.
(d) Non-Solicitation of Customers. During Executive's employment and
for a period of one (1) year following any voluntary or involuntary
termination of employment (whether by Employer or Executive), Executive
agrees not to, directly or indirectly, contact, solicit, divert,
appropriate, or call upon with the intent of doing business with the
customers or clients of Employer with whom Executive has had material
contact during the last year of Executive's employment with Employer,
including prospects of Employer with whom Executive had such contact during
said period, if the purpose of such activity is either (1) to solicit such
customers or clients or prospective customers or clients for a Competitive
Business as herein defined (including but not limited to any Competitive
Business started by Executive) or (2) to otherwise encourage any such
customer or client to discontinue, reduce, or adversely alter the amount of
its business with Employer. Executive acknowledges that, due to Executive's
relationship with Employer, Executive will develop (and/or has developed)
special contacts and relationships with Employer's clients and prospects,
and that it would be unfair and harmful to Employer if Executive took
advantage of these relationships in a Competitive Business.
A "Competitive Business" as used herein is an enterprise that is in the
business of offering banking products and/or services, which services and/or
products are similar or substantially identical to those offered by Employer
during Executive's employment with Employer.
(e) Non-Piracy of Employees. During Executive's employment and for a
period of one (1) year following any voluntary or involuntary termination
of employment (whether by Employer or Executive), Executive covenants and
agrees that Executive shall not, directly or indirectly: (a) solicit,
recruit, or hire (or attempt to solicit, recruit, or hire) or otherwise
assist anyone in soliciting, recruiting, or hiring, any employee or
independent contractor of Employer who performed work for Employer within
the last three months of Executive's employment with Employer or who was
otherwise engaged or employed with Employer at the time of said termination
of employment of Executive or (b) otherwise
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encourage, solicit, or support any such employees or independent
contractors to leave their employment or engagement with Employer, in
either case until such employee or contractor has been terminated or
separated from Employer for at least six (6) months.
(f) Non-Compete. During Executive's employment and for a period of one
(1) year following any voluntary or involuntary termination of employment
(whether by Employer or Executive), Executive agrees not to, directly or
indirectly, compete with Employer, as an officer, director, member,
principal, partner, shareholder (other than a shareholder in a company that
is publicly traded and so long as such ownership is less than 5 percent
(5%)), owner, manager, supervisor, administrator, employee, consultant, or
independent contractor, by working in the Territory (as defined herein) for
or as a "Competitive Business" (as defined above) in the Territory (as
defined herein), in a capacity identical or substantially similar to the
capacity in which Executive served at Employer. The "Territory" shall be
defined to be the following county(ies) in the State of Georgia: Gwinnett
County. Executive acknowledges that Employer conducts its business within
the Territory, that Executive will perform services for and on behalf of
Employer within the Territory, and that this Section 9(f) (and the
Territory) is a reasonable limitation on Executive's ability to compete
with Employer.
(g) Acknowledgement. It is understood and agreed by Executive that the
Parties have attempted to limit her right to compete only to the extent
necessary to protect Employer from unfair competition and that the terms
and provisions of this Section 9 are not intended to restrict Executive in
the exercise of her skills or the use of knowledge or information that does
not rise to the level of a trade secret under applicable law or
Confidential Information of Employer (to which trade secrets and
Confidential Information Executive has had and/or will have access and has
made and/or will make use of during employment with Employer).
It is acknowledged that the purpose of these covenants and promises is (and
that they are necessary) to protect Employer's legitimate business interests, to
protect Employer's investment in the overall development of its business and the
good will of its customers, and to protect and retain (and to prevent Executive
from unfairly and to the detriment of Employer utilizing or taking advantage of)
such business trade secrets and Confidential Information of Employer and those
substantial contacts and relationships (including those with customers and
employees of Employer) which Executive established due to her employment with
Employer.
This Agreement is not intended to preclude Executive's opportunity to
engage in or otherwise pursue occupations in any unrelated or non-competitive
field of endeavor, or to engage in or otherwise pursue directly competitive
endeavors so long as they meet the requirements of this Agreement. Executive
represents that her experience and abilities are such that existence or
enforcement of these covenants and promises will not prevent Executive from
earning or pursuing an adequate livelihood and will not cause an undue burden to
Executive or her family.
Executive acknowledges that these covenants and promises (and their
respective time, geographic, and/or activity limitations) are reasonable and
that said limitations are no greater than necessary to protect said legitimate
business interests in light of Executive's position with Employer and Employer's
business, and Executive agrees to strictly abide by the terms hereof.
10. Source of Payments. All payments provided in paragraphs 4 , 6, and 7
hereof shall be paid in cash from the general funds of Employer as provided
herein, and no special or separate fund shall be established by Employer, and no
other segregation of assets shall be made to assure payment. Executive shall
have no right, title, or interest in or to any investments which Employer may
make to meet the obligations hereunder.
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11. Injunctive Relief. In view of the irreparable harm and damage which
Employer would sustain as a result of a breach by Executive of the covenants or
agreements under Section 9 hereof, and in view of the lack of an adequate remedy
at law to protect Employer's interests, Employer shall have the right to
receive, and Executive hereby consents to the issuance of, temporary,
preliminary, and/or permanent injunctive relief enjoining Executive from any
violation of the covenants and agreements set forth in Section 9 hereof. The
foregoing remedy shall be in addition to, and not in limitation of, any other
rights or remedies to which Employer is or may be entitled at law or in equity
respecting this Agreement.
12. Attorneys' Fees. In the event any party hereto is required to engage in
legal action against any other party hereto, either as plaintiff or defendant,
in order to enforce or defend any of its or her 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 her
rights hereunder.
13. Federal Income Tax Withholding. Employer may 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.
14. Effect of Prior Agreements. This Agreement contains the entire
understanding between the parties hereto and supersedes any prior employment
agreement and any contemporaneous oral agreement or understanding by, between,
or among Employer and Executive.
15. General Provisions.
(a) Nonassignability. Neither this Agreement nor any right or interest
hereunder shall be assignable by Executive, her beneficiaries or legal
representatives, without the prior written consent of Employer; provided,
however, that nothing in this paragraph 15(a) shall preclude (i) Executive
from designating a beneficiary to receive any benefits payable hereunder
upon her death, or (ii) the executors, administrators, or other legal
representatives of Executive or her estate from assigning any rights
hereunder to the person or persons entitled thereto. Employer may assign
this Agreement without the consent of Executive.
(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, Employer and Executive and their respective heirs,
successors, assigns, and legal representatives.
(d) No Bar. Executive acknowledges and agrees that the existence of
any claim or cause of action against Employer shall not constitute a
defense to the enforcement by Employer of Executive's covenants,
obligations, or undertakings in this Agreement.
(e) No Conflicting Obligations. Executive hereby acknowledges and
represents that her execution of this Agreement and performance of
employment-related obligations and duties
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for Employer will not cause any breach, default, or violation of any other
employment, non-disclosure, confidentiality, non-competition, or other
agreement to which Executive may be a party or otherwise bound.
Moreover, Executive hereby agrees that he will not use in the
performance of such employment-related obligations and duties for Employer
or otherwise disclose to Employer any trade secrets or confidential
information of any person or entity (including any former employer) if and
to the extent that such use or disclosure may cause a breach or violation
of any obligation or duty owed to such employer, person, or entity under
any agreement or applicable law.
16. 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 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.
17. Severability. If for any reason any provision of this Agreement is held
invalid, the Parties agree that the court shall modify said provision(s) (or
subpart(s) thereof) to make said provision(s) (or subpart(s) thereof) and this
Agreement valid and enforceable. Any invalid provision 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.
18. 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.
19. 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.
20. 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.
21. 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 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:
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To Employer: Board of Directors
Gwinnett Banking Company
000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, Xxxxxxx 00000
Copied to
Employer's counsel: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC
0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
To Executive: Xx. Xxxx X. Xxxxx
_____________________
_____________________
Any notice to the Employer is ineffective if not also served on its counsel.
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IN WITNESS WHEREOF, the Employer has caused this Agreement to be executed
and its seal to be affixed hereunto by its duly authorized officers, and
Executive has signed this Agreement, as of the Effective Date set forth above.
ATTEST: GWINNETT BANKING COMPANY
/s/ Xxxx X. Xxxxxxx III By: /s/ Xxxx X. Xxxxxxx III
------------------------------------- ------------------------------------
Secretary Name: Xxxx X. Xxxxxxx III
Title: Executive Vice President
(BANK SEAL)
/s/ Xxxx Xxxxxx /s/ Xxxx X. Xxxxx (SEAL)
------------------------------------- ----------------------------------
Witness XXXX X. XXXXX
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