EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 10th day of February, 2003, by and among
FIRST NATIONAL BANK WEST METRO (the "Bank", or the "Employer"), a national bank
WEST METRO FINANCIAL SERVICES, INC., a bank holding company incorporated under
the laws of the State of Georgia (the "Company"), and Xxxx X. Xxxx, a resident
of the State of Georgia (the "Executive").
RECITALS:
The Employer desires to employ the Executive as Executive Vice President
and Chief Operating Officer of the Bank and the Executive desires to accept such
employment.
In consideration of the above premises and the mutual agreements
hereinafter set forth, the parties hereby agree as follows:
1. DEFINITIONS. Whenever used in this Agreement, the following terms and
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their variant forms shall have the meaning set forth below:
1.1 "AGREEMENT" shall mean this Agreement and any exhibits incorporated
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herein together with any amendments hereto made in the manner described in this
Agreement.
1.2 "AFFILIATE" shall mean any business entity which controls the
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employer, is controlled by or is under common control with the employer.
1.3 "AREA" shall mean the geographic area within the boundaries of
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Paulding County, Xxxxxxx County, and that portion of Xxxx Xxxxxx Xxxx xx Xxxxxxx
00, Xxxxxxx. It is the express intent of the parties that the Area as defined
herein is the area where the Executive performs services on behalf of the
Employer under this Agreement.
1.4 "BUSINESS OF THE EMPLOYER" shall mean the business conducted by the
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Employer, which is the business of commercial banking.
1.5 "CAUSE" shall mean:
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1.5.1 With respect to termination by the Employer:
(a) A material breach of the terms of this Agreement by the
Executive, including, without limitation, failure by the Executive to
perform his duties and responsibilities in the manner and to the extent
required under this Agreement, which remains uncured after the expiration
of thirty (30) days following the delivery of written notice of such breach
to the Executive by Employer. Such notice shall (i) specifically identify
the duties that the Chief Executive Officer of the Employer believes the
Executive has failed to perform, (ii) state the facts upon which such Chief
Executive Officer made such determination,
(b) Conduct by the Executive that amounts to fraud,
dishonesty or willful misconduct in the performance of his duties and
responsibilities hereunder;
(c) Arrest for, charged in relation to (by criminal
information, indictment or otherwise), or conviction of the Executive
during the Term of this Agreement of a crime involving breach of trust or
moral turpitude;
(d) Conduct by the Executive that amounts to gross and
willful insubordination, inattention to his duties and responsibilities
hereunder, or failure to perform his duties in a manner within the
expectations and requirements of the employer; or
(e) Conduct by the Executive that results in removal from his
position as an officer or executive of Employer pursuant to a written order
by any regulatory agency with authority or jurisdiction over Employer.
1.5.2 With respect to termination by the Executive, a material
diminution in the powers, responsibilities or duties of the Executive hereunder
or a material breach of the terms of this Agreement by Employer, which remains
uncured after the expiration of thirty (30) days following the delivery of
written notice of such breach to Employer by the Executive.
1.6 "CHANGE OF CONTROL" means any one of the following events:
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(a) the acquisition by any person or persons acting in
concert of the then outstanding voting securities of the Bank, if, after
the transaction, the acquiring person (or persons) owns, controls or holds
with power to vote fifty percent (50%) or more of any class of voting
securities of the Bank, as the case may be;
(b) within any twelve-month period (beginning on or after the
Effective Date) the persons who were directors of the Bank immediately
before the beginning of such twelve-month period (the "Incumbent
Directors") shall cease to constitute at least a majority of such board of
directors; provided that any director who was not a director as of the
Effective Date shall be deemed to be an Incumbent Director if that director
were elected to such board of directors by, or on the recommendation of or
with the approval of, at least two-thirds of the directors who then
qualified as Incumbent Directors; and provided further that no director
whose initial assumption of office is in connection with an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Securities Exchange Act of 1934)
relating to the election of directors shall be deemed to be an Incumbent
Director;
(c) a reorganization, merger or consolidation, with respect
to which persons who were the stockholders of the Bank, as the case may be,
immediately prior to such reorganization, merger or consolidation do not,
immediately thereafter, own
more than fifty percent (50%) of the combined voting power entitled to vote
in the election of directors of the reorganized, merged or consolidated
company's then outstanding voting securities; or
(d) the sale, transfer or assignment of all or substantially
all of the assets of the Company and its subsidiaries to any third party.
1.7 "COMPANY INFORMATION" means Confidential Information and Trade
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Secrets.
1.8 "CONFIDENTIAL INFORMATION" means data and information relating to
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the business of the Bank or the Company (which does not rise to the status of a
Trade Secret) which is or has been disclosed to the Executive or of which the
Executive became aware as a consequence of or through the Executive's
relationship to the Employer and which has value to the Employer and is not
generally known to its competitors. Confidential Information shall not include
any data or information that has been voluntarily disclosed to the public by the
Employer (except where such public disclosure has been made by the Executive
without authorization) or that has been independently developed and disclosed by
others, or that otherwise enters the public domain through lawful means.
1.9 "DISABILITY" shall mean the inability of the Executive to perform
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each of his material duties under this Agreement for the duration of the
disability period under the Employer's policy then in effect as certified by a
physician chosen by the Employer and reasonably acceptable to the Executive.
1.10 "EFFECTIVE DATE" shall mean the employment date.
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1.11 "INITIAL TERM" shall mean that period of time commencing on the
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first day of employment (the "Beginning Date") and running until the close of
business on the last business day immediately preceding the third anniversary of
the Beginning Date.
1.12 "TERM" shall mean the earlier of (a) the last day of the Initial
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Term or most recent subsequent renewal period or (b) any earlier termination of
employment of the Executive under this Agreement as provided for in Section 3.
1.13 "TRADE SECRETS" means Employer information including, but not
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limited to, technical or non-technical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial data,
financial plans, product plans or lists of actual or potential customers or
suppliers which:
(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 efforts that are reasonable under the
circumstances to maintain its secrecy.
2. DUTIES.
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2.1 POSITION. The Executive is employed initially as Executive Vice
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President and Chief Operating Officer of the Bank, subject to the direction of
the Chief Executive Officer and Board of Directors of the Bank or its
designee(s), shall perform and discharge well and faithfully the duties which
may be assigned to him from time to time by the Bank in connection with the
conduct of its business. The duties and responsibilities of the Executive are
set forth on Exhibit A attached hereto.
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2.2 FULL-TIME STATUS. In addition to the duties and responsibilities
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specifically assigned to the Executive pursuant to Section 2.1 hereof, the
Executive shall:
(a) devote substantially all of his time, energy and skill
during regular business hours to the performance of the duties of his
employment (reasonable vacations and reasonable absences due to illness
excepted) and faithfully and industriously perform such duties;
(b) diligently follow and implement all reasonable and lawful
management policies and decisions communicated to him by the Chief
Executive Officer of the Bank; and
(c) timely prepare and forward to the Chief Executive Officer
of the Bank all reports and accountings as may be requested of the
Executive.
2.3 OTHER PERMITTED ACTIVITIES. While the Executive shall devote
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substantially all of his business time, attention and energies to the
Business of the Employer; this shall not preclude the Executive from
pursuing any other business or professional activities provided such
activities do not interfere or conflict with the duties to be discharged
pursuant to the terms of this Agreement.
3. TERM AND TERMINATION.
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3.1 TERM. This Agreement shall remain in effect for the Term.
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While this Agreement remains in effect, however, it shall renew each day for an
additional day so that the unexpired Term is always three (3) years unless and
until either party gives written notice to the other of its intent not to allow
the Term to renew on a daily basis with such written notice to be effective no
earlier than the date of the notice. In the event such notice of non-renewal is
properly given, this Agreement shall terminate on the close of business on the
third anniversary of the date of the notice of non-renewal or the effective date
of non-renewal specified in the notice, whichever is later.
3.2 TERMINATION. During the Term, the employment of the Executive
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under this Agreement may be terminated only as follows:
3.2.1 By the Employer:
(a) In the event the Executive is disapproved for the position
employed herein by the Company's regulators.
(b) For Cause, upon written notice to the Executive pursuant to
Section 1.5.1 hereof;
(c) Without Cause at any time, provided that the Bank shall give
the Executive thirty (30) days' prior written notice of its intent to
terminate, in which event the Employer shall be required to continue to
meet its obligations to the Executive under Section 4.1 for a period equal
to the lesser of (i) twelve (12) months following the termination or (ii)
the remaining Term of the Agreement; or
(d) Upon the Disability of Executive at any time, provided that
the Employer shall give the Executive thirty (30) days' prior written
notice of its intent to terminate;
3.2.2 By the Executive:
(a) For Cause, in which event the Employer shall be required to
continue to meet its obligations under Section 4.1 for a period equal to
the lesser of (i) twelve (12) months following the termination or (ii) the
remaining Term of the Agreement; or
(b) Without Cause or upon the Disability of the Executive,
provided that the Executive shall give the Employer thirty (30) days' prior
written notice of his intent to terminate.
3.2.3 At any time upon mutual, written agreement of the parties.
3.2.4 Notwithstanding anything in this Agreement to the contrary,
the Term shall end automatically upon the Executive's death.
3.3 CHANGE OF CONTROL. If the Executive terminates his employment with
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the Employer under this Agreement for any reason within six (6) months following
a Change of Control, the Executive, or in the event of his subsequent death, his
designated beneficiaries or his estate, as the case may be, shall receive, as
liquidated damages, in lieu of all other claims, a severance payment equal to
one full year of the Executive's then current Base Salary, to be paid in full on
the last day of the month following the date of termination. In no event shall
the payment(s) described in this Section 3.3 exceed the amount permitted by
Section 280G of the Internal Revenue Code, as amended (the "Code"). Therefore,
if the aggregate present value (determined as of the date of the Change of
Control in accordance with the provisions of Section 280G of the Code) of both
the severance payment and all other payments to the Executive in the nature of
compensation which are contingent on a change in ownership or effective control
of the Bank or in the ownership of a substantial portion of the assets of the
Bank (the "Aggregate
Severance") would result in a "parachute payment," as defined under Section 280G
of the Code, then the Aggregate Severance shall not be greater than an amount
equal to 2.99 multiplied by Executive's "base amount" for the "base period, " as
those terms are defined under Section 280G. In the event the Aggregate Severance
is required to be reduced pursuant to this Section 3.3, the Executive shall be
entitled to determine which portions of the Aggregate Severance are to be
reduced so that the Aggregate Severance satisfies the limit set forth in the
preceding sentence. Notwithstanding any provision in this Agreement, if the
Executive may exercise his right to terminate employment under this Section 3.3
or under Section 3.2.2(a), the Executive may choose which provision shall be
applicable.
3.4 EFFECT OF TERMINATION. Upon termination of the Executive's
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employment hereunder, the Employer shall have no further obligations to the
Executive or the Executive's estate with respect to this Agreement, except for
the payment of salary, accrued pursuant to Section 4.1 hereof and unpaid as of
the effective date of the termination of employment and any payments set forth
in Sections 3.2.1(a), (c) or (d); Section 3.2.2(a); Section 3.3; and/or Section
4.4, but only to the extent applicable as provided in such Sections. Nothing
contained herein shall limit or impinge upon any other rights or remedies of the
Employee or the Executive under any other agreement or plan to which the
Executive is a party or of which the Executive is a beneficiary.
4. COMPENSATION. The Executive shall receive the following salary and
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benefits during the Term, except as otherwise provided below:
4.1 BASE SALARY. During the Initial Term, the Executive shall be paid
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a salary equal to an annual base rate of $120,000.00 (the "Base Salary"). The
Executive's Base Salary shall be reviewed by the Chief Executive Officer of the
Bank at least annually, and the Executive shall be entitled to receive annually
an increase in such amount, if any, as may be determined by the CEO of the Bank
based on its evaluation of Executive's performance. Base Salary shall be
payable in accordance with the Employer's normal payroll practices.
4.2 INCENTIVE COMPENSATION. The Executive shall be entitled to
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bonus compensation in the amount up to 25% of base salary through a performance
bonus incentive plan. The incentive plan will be structured to reward the
Executive for performance in meeting selective objectives. Details of the
incentive plan will be formulated and agreed to by Executive and Employer during
the first month of Executives employment.
4.3 STOCK OPTIONS. As soon as practicable following the first day of
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employment, the company will grant to the Executive an incentive stock option to
purchase 15,000 shares of the Company's common stock at a per share purchase
price equal to no less than the fair market value determined as of the date of
grant. The option generally will become vested and exercisable in equal,
one-third increments, commencing on the first anniversary of the option grant
date and continuing for the next two (2) successive anniversaries until the
option is fully vested and exercisable. The option shall expire generally upon
the earlier of ninety (90) days following termination of employment or upon the
tenth anniversary of the option grant date. The option will be issued by the
Employer pursuant to the Company's stock incentive plan and subject to the terms
of a related stock option agreement. In addition, the executive shall be
entitled to earn up to 2,000 additional shares per year under a performance
incentive plan structured to reward executive for
performance in meeting selective objectives. Details of the stock option
performance incentive plan will be formulated and agreed to by Executive and
Employer during the first month of Executive's employment. Each year's grant of
stock will vest in equal one-third increments over the three years following
grant date.
4.4 HEALTH INSURANCE.
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(a) The Employer shall pay for the cost of premium payments paid
for the Executive's health insurance covering the Executive under the
Employer's health insurance plan during the "Term".
4.5 AUTOMOBILE. Beginning as of the Effective Date, the Employer will
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provide Executive with an automobile allowance of $500 per month.
4.6 BUSINESS EXPENSES; MEMBERSHIPS. The Employer specifically agrees
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to reimburse the Executive for:
(a) reasonable and necessary business (including travel) expenses
incurred by him in the performance of his duties hereunder, as approved by
the CEO of either the Bank or the Company; and
(b) beginning as of the Effective Date, the dues and business
related expenditures, associated with membership in The Marietta Country
Club and civic associations, as selected by the Executive, and in
professional associations which are commensurate with his position;
provided, however, that the Executive shall, as a condition of
reimbursement, submit verification of the nature and amount of such
expenses in accordance with reimbursement policies from time to time
adopted by the Employer and in sufficient detail to comply with rules and
regulations promulgated by the Internal Revenue Service.
4.7 VACATION. On a non-cumulative basis, the Executive shall be
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entitled to four (4) weeks of vacation in each successive twelve-month period
during the Term, during which his compensation shall be paid in full.
4.8 LIFE INSURANCE. Executive shall be entitled to life insurance as
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is customary under the Company's benefit program for all employees.
4.9 BENEFITS. In addition to the benefits specifically described in
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this Agreement, the Executive shall be entitled to such benefits as may be
available from time to time to other employees. All such benefits shall be
awarded and administered in accordance with the Bank's standard policies and
practices. Such benefits may include, by way of example only, profit-sharing
plans, retirement or investment funds, dental, health, life and disability
insurance benefits and such other benefits as the Bank deems appropriate.
4.10 WITHHOLDING. The Employer may deduct from each payment of
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compensation hereunder all amounts required to be deducted and withheld in
accordance with applicable federal and state income, FICA and other withholding
requirements.
5. EMPLOYER INFORMATION.
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5.1 OWNERSHIP OF COMPANY INFORMATION. All Employer Information
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received or developed by the Executive while employed by the Employer will
remain the sole and exclusive property of the Employer.
5.2 OBLIGATIONS OF THE EXECUTIVE. The Executive agrees:
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(a) to hold Employer Information in strictest confidence;
(b) not to use, duplicate, reproduce, distribute, disclose or
otherwise disseminate Employer Information or any physical embodiments of
Employer Information; and
(c) in any event, not to take any action causing or fail to take
any action necessary in order to prevent any Employer Information from
losing its character or ceasing to qualify as Confidential Information or a
Trade Secret.
In the event that the Executive is required by law to disclose any Employer
Information, the Executive will not make such disclosure unless (and then only
to the extent that) the Executive has been advised by independent legal counsel
that such disclosure is required by law and then only after prior written notice
is given to the Employer when the Executive becomes aware that such disclosure
has been requested and is required by law. This Section 5 shall survive for a
period of twelve (12) months following termination of this Agreement for any
reason with respect to Confidential Information, and shall survive termination
of this Agreement for any reason for so long as is permitted by applicable law,
with respect to Trade Secrets.
5.3 DELIVERY UPON REQUEST OR TERMINATION. Upon request by the
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Employer, and in any event upon termination of his employment with the Employer,
the Executive will promptly deliver to the Employer all property belonging to
the Employer, including, without limitation, all Employer Information then in
his possession or control.
6. NON-COMPETITION. The Executive agrees that during his employment by the
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Bank hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(b),
- by the Executive without Cause pursuant to Section 3.2.2(b), or
- by the Executive in connection with a Change of Control pursuant to
Section 3.3,
for a period of twelve (12) months thereafter, he will not (except on behalf of
or with the prior written consent of the Employer), within the Area, either
directly or indirectly, on his own behalf or in the service or on behalf of
others, as an executive employee or in any other capacity which
involves duties and responsibilities similar to those undertaken for the
Employer (including as an organizer or proposed executive officer of a new
financial institution), engage in any business which is the same as or
essentially the same as the Business of the Employer.
7. NON-SOLICITATION OF CUSTOMERS. The Executive agrees that during his
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employment by the Employer hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(b),
- by the Executive without Cause pursuant to Section 3.2.2(b), or
- by the Executive in connection with a Change of Control pursuant to
Section 3.3,
for a period of twelve (12) months thereafter, he will not (except on behalf of
or with the prior written consent of the Employer), within the Area, on his own
behalf or in the service or on behalf of others, solicit, divert or appropriate
or attempt to solicit, divert or appropriate, any business from any of the
Employer's customers, including actively sought prospective customers, with whom
the Executive has or had material contact during the last two (2) years of his
employment, for purposes of providing products or services that are competitive
with the Business of the Employer.
8. NON-SOLICITATION OF EMPLOYEES. The Executive agrees that during his
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employment by the Employer hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(b),
- by the Executive without Cause pursuant to Section 3.2.2(b), or
- by the Executive in connection with a Change of Control pursuant to
Section 3.3,
for a period of twelve (12) months thereafter, he will not, within the Area, on
his own behalf or in the service or on behalf of others, solicit, recruit or
hire away or attempt to solicit, recruit or hire away, any employee of the
Employer or its Affiliates to another person or entity providing products or
services that are competitive with the Business of the Employer, whether or not:
- such employee is a full-time employee or a temporary employee of the
Employer or its Affiliates,
- such employment is pursuant to written agreement, and
- such employment is for a determined period or is at will.
9. REMEDIES. The Executive agrees that the covenants contained in Sections
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5 through 8 of this Agreement are of the essence of this Agreement; that each of
the covenants is reasonable and necessary to protect the business, interests and
properties of the Employer, and that irreparable loss and damage will be
suffered by the Employer should he breach any of the covenants. Therefore, the
Executive agrees and consents that, in addition to all the remedies provided by
law or in equity, the Employer shall be entitled to a temporary restraining
order and temporary and permanent injunctions to prevent a breach or
contemplated breach of any of the covenants. The Employer and the Executive
agree that all remedies available to the Employer or the Executive, as
applicable, shall be cumulative.
10. SEVERABILITY. The parties agree that each of the provisions included in
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this Agreement is separate, distinct and severable from the other provisions of
this Agreement and that the invalidity or unenforceability of any Agreement
provision shall not affect the validity or enforceability of any other provision
of this Agreement. Further, if any provision of this Agreement is ruled invalid
or unenforceable by a court of competent jurisdiction because of a conflict
between the provision and any applicable law or public policy, the provision
shall be redrawn to make the provision consistent with and valid and enforceable
under the law or public policy.
11. NO SET-OFF BY THE EXECUTIVE. The existence of any claim, demand, action
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or cause of action by the Executive against the Employer, or any Affiliate of
the Employer, whether predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Employer of any of its rights
hereunder.
12. NOTICE. All notices and other communications required or permitted
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under this Agreement shall be in writing and, if mailed by prepaid first-class
mail or certified mail, return receipt requested, shall be deemed to have been
received on the earlier of the date shown on the receipt or three (3) business
days after the postmarked date thereof. In addition, notices hereunder may be
delivered by hand or overnight courier, in which event the notice shall be
deemed effective when delivered. All notices and other communications under this
Agreement shall be given to the parties hereto at the following addresses:
(i) If to the Employer, to it at:
First National Bank West Metro
P. O. Drawer 1190
Xxxxxx, XX 00000
(ii) If to the Executive, to him at:
Xxxx X. Xxxx
0000 Xxxx Xxx, X.X.
Xxxxxxxx, XX 00000
13. ASSIGNMENT. Neither party hereto may assign or delegate this Agreement
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or any of its rights and obligations hereunder without the written consent of
the other party to this Agreement.
14. WAIVER. A waiver by one party to this Agreement of any breach of this
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Agreement by the other party to this Agreement shall not be effective unless in
writing, and no waiver shall operate or be construed as a waiver of the same or
another breach on a subsequent occasion.
15. ARBITRATION. Any controversy or claim arising out of or relating to
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this contract, or the breach thereof, shall be settled by binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator may be entered
only in the State Court of Paulding County or the federal court for the Northern
District of Georgia. The Employer and the Executive agree to share equally the
fees and expenses associated with the arbitration proceedings. EXECUTIVE MUST
INITIAL HERE: _____
16. ATTORNEYS' FEES. In the event that the parties have complied with this
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Agreement with respect to arbitration of disputes and litigation ensues between
the parties concerning the enforcement of an arbitration award, the party
prevailing in such litigation shall be entitled to receive from the other party
all reasonable costs and expenses, including without limitation attorneys' fees,
incurred by the prevailing party in connection with such litigation, and the
other party shall pay such costs and expenses to the prevailing party promptly
upon demand by the prevailing party.
17. APPLICABLE LAW. This Agreement shall be construed and enforced under
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and in accordance with the laws of the State of Georgia.
18. INTERPRETATION. Words importing any gender include all genders. Words
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importing the singular form shall include the plural and vice versa. The terms
"herein", "hereunder", "hereby", "hereto", "hereof" and any similar terms refer
to this Agreement. Any captions, titles or headings preceding the text of any
article, section or subsection herein are solely for convenience of reference
and shall not constitute part of this Agreement or affect its meaning,
construction or effect.
19. ENTIRE AGREEMENT. This Agreement embodies the entire and final
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agreement of the parties on the subject matter stated in this Agreement. No
amendment or modification of this Agreement shall be valid or binding upon the
Employer or the Executive unless made in writing and signed by both parties.
All prior understandings and agreements relating to the subject matter of this
Agreement are hereby expressly terminated.
20. RIGHTS OF THIRD PARTIES. Nothing herein expressed is intended to or
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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. SURVIVAL. The obligations of the Executive pursuant to Sections 5, 6,
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7, 8 and 9 shall survive the termination of the employment of the Executive
hereunder for the period designated under each of those respective sections.
22. JOINT AND SEVERAL. The obligations of the Bank and the Company to
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Executive hereunder shall be joint and several.
IN WITNESS WHEREOF, the Employer and the Executive have executed and
delivered this Agreement as of the date first shown above.
THE BANK:
FIRST NATIONAL BANK OF WEST METRO
By:
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Print Name:
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Title:
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THE EXECUTIVE:
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Xxxx X. Xxxx
