STATE OF GEORGIA
COUNTY OF MUSCOGEE
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement ("Agreement") is entered
into this 13th day of September, 1999 by and between Synovus Financial Corp.
("Synovus"), a Georgia corporation, and Xxxxx X. Xxxxxxxxx ("Executive"), an
individual resident of the State of Georgia.
WHEREAS, Synovus and Executive and Columbus Bank and Trust Company, a
wholly-owned banking subsidiary of Synovus, were parties to an Employment
Agreement dated October 13, 1977 and amended on January 7, 1982, April 18, 1989,
January 1, 1990, and March 9, 1992 ("Existing Agreement");
WHEREAS, Synovus desires to retain the services of Executive for
an additional seven years; and
WHEREAS, Synovus desires to amend and restate the provisions of the
Existing Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Synovus and Executive
hereby agree as follows:
Section 1.
Definitions
1.1. Board. The term "Board" means the Board of Directors of SYNOVUS.
1.2. Cause. The term "Cause" for purposes of this Agreement shall mean
matters which the Board determines to consist of the Executive's embezzlement,
deceit and/or dishonesty, gross negligence or willful misconduct in the
performance of his duties or responsibilities under this Agreement or a breach
of Sections 4 or 5 or any other material provision of this Agreement.
1.3. Confidential or Proprietary Information. The term "Confidential or
Proprietary Information" for purposes of this Agreement shall mean any secret,
confidential, or proprietary information of SYNOVUS or a SYNOVUS AFFILIATE (not
otherwise included in the definition of Trade Secret in Section 1.7 of this
Agreement) that has not become generally available to the public by the act of
one who has the right to disclose such information without violating any right
of SYNOVUS or a SYNOVUS AFFILIATE.
1.4. Disability. The term "Disability" for purposes of this Agreement
means a bodily or mental illness, disease or injury to the extent that, in the
reasonable judgment of the Board, it prevents Executive from performing his
material and substantial duties and responsibilities under this Agreement.
1.5. SYNOVUS. The term "SYNOVUS" for purposes of this Agreement
means SYNOVUS FINANCIAL CORP. and any successor to SYNOVUS FINANCIAL CORP.
1.6. SYNOVUS AFFILIATE. The term "SYNOVUS AFFILIATE" for purposes of
this Agreement means any organization whose employees would be treated as
employees of SYNOVUS under ss. 414(b) or ss. 414(c) of the Internal Revenue Code
of 1986, as amended, if the figure 50% was substituted for the figure 80% in the
income tax regulations under these two sections of such Code.
1.7. Trade Secret. The term "Trade Secret" for purposes of this
Agreement shall mean information, including, but not limited to, technical or
nontechnical data, a formula, a pattern, a compilation, a program, a source
code, an object code, a device, a method, a technique, a drawing, a process,
financial data, financial plans, product plans, or a list of actual or potential
customers or suppliers which is not commonly known by or available to the public
and which information:
(a) derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its
disclosure or use, and
(b) is the subject of reasonable efforts by SYNOVUS or any
SYNOVUS AFFILIATE to maintain its secrecy.
Section 2.
Terms And Conditions Of Employment
2.1. Term. The term of Executive's employment under this Agreement
(subject to the terms and conditions of this Agreement) shall be the seven (7)
consecutive year period which starts on the date of this Agreement.
2.2. Title, Duties and Responsibilities. Executive shall serve as
Chairman and Chief Executive Officer of SYNOVUS through September 13, 2004,
after which Executive's title, duties and responsibilities under this Agreement
shall be set by SYNOVUS' Board of Directors. Executive shall devote all of his
working time, attention, and energy to fulfilling such duties and
responsibilities and shall not engage in any substantial outside business or
other activities unrelated to serving SYNOVUS' business interests.
Notwithstanding the foregoing, Executive may devote reasonable time to fulfill
his duties with any governmental appointments, and nothing in this Section 2.2
shall preclude Executive from (a) participating or serving on corporate,
industry, civic, charitable or professional boards or committees, (b) delivering
lectures, fulfilling speaking engagements, or teaching at education
institutions, or (c) investing his personal assets in any form or manner so long
as such activities do not significantly interfere with the performance of
Executive's duties and responsibilities as an employee of SYNOVUS.
2.3. Compensation.
(a) Base Salary. Executive's annual Base Salary at the start
of his term shall be $670,000, payable in accordance with SYNOVUS'
standard payroll policies and practices. Such Base Salary shall be
reviewed no less frequently than annually by the SYNOVUS Compensation
Committee in accordance with SYNOVUS' standard practices for reviewing
base salary for similarly situated executives of SYNOVUS.
(b) Vacation. Executive shall be entitled to paid vacation in
accordance with the plans, policies, programs and practices of SYNOVUS
as in effect for similarly situated executives of SYNOVUS.
(c) Bonus Plan and Other Benefits. Executive shall be eligible
to participate in the Synovus Financial Corp. Incentive Bonus Plan (as
amended from time to time), in the SYNOVUS Long-Term Incentive Plan(s),
and the various welfare and fringe benefit plans and the tax qualified
retirement plans as adopted by SYNOVUS. Executive shall also be
entitled to receive the same perquisites in accordance with the plans,
policies, programs and practices of SYNOVUS as in effect for similarly
situated executives of SYNOVUS.
(d) Change in Control Agreement. SYNOVUS has entered into a
separate Change in Control Agreement with Executive as of January 1,
1996.
(e) Challenge Grant of Stock Options. SYNOVUS has agreed to
grant performance accelerated options to Executive that are exercisable
upon the earlier of (i) the expiration of this Agreement, or (ii) the
attainment and maintenance of specified stock price hurdles until the
time of exercise, i.e., one-third would be exercisable if the price
equals or exceeds $40 at the time of exercise, one-third would be
exercisable if the price equals or exceeds $45 at the time of exercise,
and the remaining third would be exercisable if the price equals or
exceeds $50 at the time of exercise. An initial grant of an option to
purchase 500,000 shares will be made as of the date of this Agreement.
It is the intention of Synovus, subject to the provisions of Synovus'
Long-Term Incentive Plans and the recommendation of the Compensation
Committee, that similar grants will be made at future dates. The
initial grant agreement is attached hereto as Exhibit "A" and made a
part hereof.
Section 3.
Deferred Compensation
3.1. Amount of Deferred Compensation. For all services heretofore and
hereafter rendered by Executive on behalf of SYNOVUS during the term of this
Agreement, SYNOVUS shall pay Executive or his beneficiary (as the case may be)
deferred compensation in the total amount of $468,000, said deferred
compensation to be in addition to any and all amounts of deferred compensation
which may be payable to Executive or his beneficiary (as the case may be) under
qualified or nonqualified defined contribution or defined benefit plans
maintained by SYNOVUS, under insurance policies, or otherwise.
3.2. Forfeiture of Deferred Compensation. Executive and his beneficiary
shall forfeit all rights to deferred compensation under this Section 3 upon the
date of the occurrence of either of the following events: (a) SYNOVUS'
termination of the employment of Executive with SYNOVUS for Cause; (b)
Executive's violation of the terms of the Noncompetition Covenants set forth in
Section 4 below or the Trade Secrets and Confidentiality Covenants set forth in
Section 5 below; or (c) Executive commits suicide.
3.3. Payment of Deferred Compensation. Subject to the provisions of
Section 3.2 above, deferred compensation shall be due and payable under this
Agreement to Executive or his beneficiary or beneficiaries (hereinabove and
hereinafter referred to as "beneficiary") as follows, to-wit:
(a) Termination of Executive's Employment. Should Executive
voluntarily terminate his employment with SYNOVUS or should SYNOVUS
terminate Executive's employment with SYNOVUS for reasons other than
Cause, then in either of such events, SYNOVUS shall commence payment of
deferred compensation to Executive at the rate of $2,600 per month for
180 consecutive calendar months, the first of such monthly payments to
commence 30 days after the date of the termination of Executive's
employment; provided, however, should Executive die prior to receiving
all of said 180 monthly payments, then in such event, the then
remaining unpaid balance of the $468,000 of deferred compensation due
to Executive shall be paid to Executive's beneficiary in approximately
equal monthly installments, the first of such monthly payments to
commence 30 days after the date of Executive's death and the succeeding
monthly installments shall extend over a period not to exceed 120
months from the date of the payment of the first monthly deferred
compensation installment to Executive under this Section 3.3(a);
(b) Termination of Executive's Employment Due to Disability.
Should Executive's employment with SYNOVUS be terminated on account of
Executive's Disability, then in such event, SYNOVUS shall commence
paying deferred compensation to Executive in the amount of $2,600 per
month for 180 consecutive calendar months, the first of such monthly
payments to commence 30 days after the date of Executive's Disability;
provided, however, should Executive die prior to receiving all of said
180 monthly payments, then in such event, the then remaining unpaid
balance of the $468,000 of deferred compensation due Executive shall be
paid to Executive's beneficiary in approximately equal monthly
installments, the first of such monthly installments shall commence 30
days after the date of Executive's death and the succeeding monthly
installments shall extend over a period not to exceed 120 months from
the date of the payment of the first such monthly deferred compensation
installment to Executive under this Section 3.3(b).
(c) Termination of Executive's Employment Due to Death. In the
event Executive's employment with SYNOVUS is terminated on account of
Executive's death, then in such event, SYNOVUS shall commence paying
$468,000 in deferred compensation to Executive's beneficiary in 120
consecutive monthly payments, the first of such monthly payments to
commence 30 days after the date of Executive's death, as follows:
SYNOVUS shall pay Executive's beneficiary $6,825 per month for 12
consecutive calendar months, and SYNOVUS shall thereafter pay
Executive's beneficiary $3,575 per month for an additional 180
consecutive calendar months.
(d) Designation of Beneficiary to Receive Deferred
Compensation in the Event of Executive's Death. Should Executive die
prior to the commencement or completion of SYNOVUS' payment of deferred
compensation pursuant to this Section 3, then in such event, SYNOVUS
shall pay said deferred compensation to the beneficiary or
beneficiaries designated by Executive on the Beneficiary Designation
Form attached hereto as Exhibit "B" and made a part hereof, or to
Executive's estate in the absence of an effective beneficiary
designation, at the times and in the amounts provided for in Section
3.3 above.
Section 4.
Noncompetition
4.1. No Competitive Activity. For a period of two (2) years after the
date of Executive's termination of employment with SYNOVUS hereunder, Executive
will not become a director and/or a principal executive officer of (a) any
financial institution (including, but not limited to, a bank and/or a bank
holding company and/or a savings and loan association and/or a savings and loan
holding company) having a place of business in any county of any state in which
SYNOVUS or any SYNOVUS AFFILIATE then has an office; or (b) any business entity
or organization that is a credit/debit/transaction card processor which competes
with SYNOVUS or any SYNOVUS AFFILIATE.
4.2. No Solicitation of Customers or Clients. Executive shall neither
during his employment by SYNOVUS, nor during the two (2) year period which ends
on the date of his employment by SYNOVUS terminates, solicit any customer or
client of SYNOVUS or any SYNOVUS AFFILIATE with whom Executive had any material
business contact during the two (2) year period which ends on the date his
employment by SYNOVUS or a SYNOVUS AFFILIATE terminates or the purpose of
competing with SYNOVUS or any SYNOVUS AFFILIATE, either individually, or as an
owner, partner, employee, agent, consultant, advisor, contractor, salesman,
stockholder, investor, officer or director of, or service provider to, any
corporation, partnership, venture or other business entity.
4.3. Antipirating of Employees. Executive shall neither during his
employment by SYNOVUS, nor during the two (2) year period ending on the date his
employment by SYNOVUS terminates, employ or seek to employ on his own behalf or
on behalf of any other person, firm or corporation, any person employed by
SYNOVUS or a SYNOVUS AFFILIATE in an executive, managerial, or supervisory
capacity during the term of Executive" employment by SYNOVUS or a SYNOVUS
AFFILIATE, with whom Executive had contact during the two (2) year period which
ends on the date Executive's employment by SYNOVUS terminates (whether or not
such employee would commit a breach of contract).
Section 5.
Trade Secrets and Confidential Information
5.1. Trade Secrets. Executive hereby agrees that he will hold in a
fiduciary capacity for the benefit of SYNOVUS and each SYNOVUS AFFILIATE, and
will not directly or indirectly use or disclose, any Trade Secret that Executive
may have acquired during the term of his employment by SYNOVUS for so long as
such information remains a Trade Secret.
5.2. Confidential or Proprietary Information. Executive hereby agrees
that during his employment by SYNOVUS and during the two (2) year period ending
on the date his employment by SYNOVUS terminates, he will hold in a fiduciary
capacity for the benefit of SYNOVUS and each SYNOVUS AFFILIATE, and will not
directly or indirectly use or disclose, any Confidential or Proprietary
Information that Executive may have acquired (whether or not developed or
compiled by Executive and whether or not Executive was authorized to have access
to such information) during the term of, in the course of, or as a result of his
employment by SYNOVUS.
5.3. State Law. The provisions of Sections 5.1 and 5.2 are in addition
to, and not in lieu of, the protections provided under state law, and nothing in
either Sections 5.1 or 5.2 shall diminish or otherwise limit the rights of
SYNOVUS or a SYNOVUS AFFILIATE under state law.
Section 6.
Specific Performance
Executive acknowledges that the obligations undertaken by him pursuant
to this Agreement are unique and that SYNOVUS likely will have no adequate
remedy at law if Executive shall fail to perform any of his obligations under
this Agreement, and Executive therefore confirms that SYNOVUS' right to specific
performance of the terms of Sections 3, 4 and 5 of this Agreement is essential
to protect the rights and interests of SYNOVUS. Accordingly, in addition to any
other remedies that SYNOVUS may have at law or in equity, SYNOVUS will have the
right to have all obligations, covenants, agreements and other provisions of
Sections 3, 4 and 5 of this Agreement specifically performed by Executive, and
SYNOVUS will have the right to obtain preliminary and permanent injunctive
relief to secure specific performance and to prevent a breach or contemplated
breach of this Agreement by Executive, and Executive submits to the jurisdiction
of the courts of the State of Georgia for this purpose.
Section 7.
Miscellaneous Provisions
7.1. Assignment. This Agreement is for the personal services of
Executive, and the rights and obligations of Executive under this Agreement are
not assignable or delegable in whole or in part by Executive without the prior
written consent of SYNOVUS. This Agreement is assignable in whole or in part by
SYNOVUS to any SYNOVUS AFFILIATE.
7.2. Governing Law. This Agreement will be governed by and construed
under the laws of the State of Georgia (without reference to the choice of law
principles thereof). Executive consents to jurisdiction and venue in the state
and federal courts of the State of Georgia for any action arising from a dispute
under this Agreement, and for any such action brought in such a court, expressly
waives any defense he might otherwise have based on lack of personal
jurisdiction or improper venue, or that the action has been brought in an
inconvenient forum.
7.3. Counterparts. This Agreement may be executed in counterparts, each
of which will be deemed an original, but all of which together will constitute
one and the same instrument.
7.4. Headings, References. The headings and captions used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.5. Attorneys' Fees. If any action is taken with respect to this
Agreement, SYNOVUS shall bear its own attorneys' fees and expenses and Executive
shall bear his own attorneys' fees and expenses.
7.6. Amendments and Waivers. Except as otherwise specified in this
Agreement, this Agreement may be amended, and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of SYNOVUS and
Executive.
7.7. Severability. Any provision of this Agreement held to be
unenforceable under applicable law will be enforced to the maximum extent
possible, and the balance of this Agreement will remain in full force and
effect.
7.8. Entire Agreement. This Agreement constitutes the entire
understanding and agreement of SYNOVUS and Executive with respect to the
transactions contemplated in this Agreement, and supersedes all prior
understandings and agreements between SYNOVUS and Executive with respect to such
transactions.
7.9. Notices. Any notice required hereunder to be given by either
SYNOVUS or Executive will be in writing and will be deemed effectively given
upon personal delivery to the party to be notified or five (5) days after
deposit with the United States Post Office by registered or certified mail,
postage prepaid, to the other party at the address set forth below or to such
other address as either party may from time to time designate by ten (10) days
advance written notice pursuant to this Section 7.9. All such written
communication will be directed as follows:
If to SYNOVUS:
SYNOVUS FINANCIAL CORP.
000 Xxxxx Xxxxxx, Xxxxx 000
One Arsenal Place
Columbus, Georgia 31901
Attention: General Counsel
If to Executive:
Xxxxx X. Xxxxxxxxx
0000 Xxxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
7.10. Binding Effect. This Agreement shall be for the benefit of, and
shall be binding upon, SYNOVUS and Executive and their respective heirs,
personal representatives, legal representatives, successors and assigns,
subject, however, to the provisions in Section 7.1 of this Agreement.
IN WITNESS WHEREOF, SYNOVUS and Executive have executed this Agreement
effective as of the date set forth on the first page of this Agreement.
SYNOVUS FINANCIAL CORP.
By: /s/X.X. Xxxxxxxx, III
--------------------------------
Title: Senior Executive Vice President
and Secretary
-------------------------------
EXECUTIVE
/s/Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
