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EXHIBIT 10.8
BONUS AND STOCK OPTION AGREEMENT
This Bonus and Stock Option Agreement ("Agreement") is made and entered
into effective as of the 23rd day of September, 1998 by and between WGNB CORP.,
a Georgia corporation ("Corporation"), and Xxxxxx X. Xxxxx, a resident of the
State of Georgia ("Individual").
WHEREAS, Individual is an officer of the Corporation and an employee
and officer of the Corporation's wholly-owned subsidiary, West Georgia National
Bank, a national banking association ("Bank"); and
WHEREAS, the Board of Directors of the Corporation has adopted
resolutions approving the adoption of a plan providing for the payment of a
bonus in the form of cash and the grant of stock options to Individual; and
WHEREAS, the terms and conditions of this Agreement are in addition to
any and all agreements relating to the employment of Individual by the
Corporation or its subsidiaries, including, but not limited to, the employee
bonus plan implemented by the Corporation ("Corporation Plan") and the
employment relationship by and between Individual and the Bank.
Now, therefore, in consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1 - CASH BONUS
In addition to the annual salary paid by the Corporation to Individual
pursuant to the employment relationship between such parties, and the bonus due
to Individual pursuant to the employee bonus program of the Corporation,
Corporation agrees to pay to Individual in consideration for services rendered
as Secretary and Treasurer of the Corporation and Chief Financial Officer of the
Bank an annual cash bonus, commencing with a bonus calculated as to the period
ended December 31, 1998, in an amount to be determined as follows:
1.1 The annual cash bonus shall be a performance-based calculation
with the performance criteria for each applicable year to be (a) the return on
assets ("ROA") of the Corporation, as determined before the calculation of the
amount due to Individual pursuant to this Section 1 but After the calculation of
bonuses due pursuant to the Corporation Plan and after the determination of
federal and state income taxes based on the Corporation's consolidated financial
statements prepared in conformance with the uniform bank performance ratios
promulgated by the Federal Financial Institutions Examining Council, applied on
a consistent basis as determined by the Corporation's independent certified
public accountant ("Financial Statements"), (b) the then most recent rating of
the Bank as determined by the Office of the Comptroller of the Currency
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based upon capital adequacy, asset quality, management ability and
effectiveness, earnings quantity and quality, and liquidity (the "CAMEL
Rating"), and (c) the total asset growth of the Corporation based upon the
average net end of month total assets for the applicable year as compared to the
immediately preceding calendar year end of operation based upon the
Corporation's Financial Statements for such year ("Growth"). For example, "net
end of month total assets" is calculated by determining the gross assets as
shown on the Bank's general ledger as of the last business day of the month,
minus the sum of outstanding letters of credit, minus income collected but not
earned on loans, and minus the allowance for loan and lease losses. This
calculation mirrors the monthly adjustments set forth in the Bank's general
ledger. If the Corporation expands its business interests and owns assets other
than its current interests, this calculation would expand to include such
assets.
1.2 Individual shall aggregate points on an annual basis based
upon specific levels of ROA of the Corporation, CAMEL Rating of the Bank, and
growth of the Corporation. The points to be aggregated by Individual for each
year for the purpose of the bonus calculation set forth above will be determined
in accordance with the schedule set forth on Exhibit "A". The percentages
applicable to the provisions of Exhibit "A" shall be rounded down to the nearest
tenth or hundredth of a percent, as applicable. The bonus due to Individual for
each applicable year shall be equal to (a) the aggregate number of points
accrued for the applicable year, divided by, (b) 133.33 and (c) the resulting
quotient will constitute a percentage which will be multiplied by Corporation's
profit for the applicable year based upon the Corporation's Financial
Statements, after the determination of federal and state income taxes, but
before the calculation of bonuses under the Corporation Plan, other employee
bonuses, and the bonus due under this Agreement. The resulting product shall
constitute the cash bonus due to individual for the applicable year ("Cash
Bonus"). Notwithstanding the foregoing, the Cash Bonus for the period ending
December 31, 1998 shall be 50 percent of the amount determined in the manner
described above. Exhibit "B" attached hereto exemplifies the method set forth in
this Agreement for determining the Cash Bonus for the period ended December 31,
1998. Exhibit "B " is provided solely as an example and the calculations set
forth on Exhibit "B" are non-binding and do not represent any obligation or
projection of the Corporation relating to the Cash Bonus due to Individual
pursuant to this Section 1 or the options due to Individual pursuant to Section
2 of this Agreement.
1.3 Once per calendar quarter, Individual shall be allowed to
receive an advance against the amount of the Cash Bonus due to Individual for
the applicable calendar year in an amount not to exceed 50% of the anticipated
Cash Bonus attributable to such calendar quarter, as determined by the Board of
Directors, or the Executive Committee, of the Corporation in its sole
discretion. During the month of December, Individual may draw as an advance an
additional amount against the Cash Bonus due for such calendar year in an amount
to be determined in the sole discretion of the Board of Directors, or Executive
Committee, of the Corporation. In the event the aggregate amount of advances
paid to Individual against the Cash Bonus due for a calendar year exceeds the
actual amount of the Cash Bonus due to Individual for such year pursuant to
Section 1.2, Individual shall remit the resulting excess amount to the
Corporation not later than January 31 of the immediately succeeding year. In the
event the amount advanced against the Cash Bonus to Individual for a calendar
year is less than the Cash Bonus due to Individual for such year, the
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remaining amount due to Individual shall be paid within ten days after the
calculation of the amount due. In the event Individual terminates employment
with the Bank for any reason (other than death or disability) during a
particular calendar year, this Agreement shall terminate and Individual shall be
entitled only to the amount of Cash Bonus already paid for that year, plus any
unpaid amounts attributable to prior years. In the event Individual's employment
with the Bank terminates by reason of death or disability, Individual's estate
(or in the case of disability, Individual) shall be entitled to a pro rata
portion of the Cash Bonus determined under the method set forth above, based on
the portion of the applicable year that Individual was employed by the Bank.
SECTION 2 - STOCK OPTION
2.1 Corporation grants to Individual the option to acquire shares
of the common stock of Corporation on an annual basis ("Option Shares"),
pursuant to the WGNB Corp. Incentive Stock Option Plan ("ISO Plan"), in an
amount equal to the quotient (rounded to the nearest whole share) which shall be
determined by dividing (a) the Cash Bonus due to Individual pursuant to Section
1 for the applicable year, by (b) the Market Value Per Share of the common stock
of Corporation, as determined by the ISO Plan, as of December 31 of the
applicable year. All Option Shares granted to Individual shall be subject to and
governed by the terms and conditions of the ISO Plan and a Stock Option
Agreement in the form attached hereto as Exhibit "C" and incorporated herein by
reference.
SECTION 3 - TERM
3.1 This Agreement shall be effective as of the date first
indicated above and shall be terminable at any time by written notice of either
party to the other party.
SECTION 4 - MISCELLANEOUS
4.1 Neither the obligation of the Corporation to pay to Individual
the Cash Bonus pursuant to Section 1 of this Agreement nor the grant of the
option to acquire common stock of the Corporation pursuant to Section 2 of this
Agreement confers any right upon Individual with respect to the continuation of
employment with the Corporation. Nothing contained herein shall be construed as
interfering with or restricting the right of the Corporation or of Individual to
terminate employment at any time, with or without cause.
4.2 Notwithstanding any provision of this Agreement to the
contrary, in the event the CAMEL Rating of the Bank for any calendar year of
this Agreement is 3, 4, or 5, and, in such event, for as long as the CAMEL
Rating remains 3, 4, or 5, Individual shall not be entitled to receive and the
Corporation shall not be required to pay a Cash Bonus for such year or years
pursuant to Section 1 and the Corporation shall have no obligation to grant a
stock option for such year or years pursuant to, Section 2 of this Agreement.
4.3 Any notices or other communications to any party pursuant to
or relating to this Agreement and the transactions provided for herein shall be
deemed to be given, delivered or
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received when delivered personally or three days after being deposited in the
United States Mail, registered or certified, and with proper postage and
registration and certification fees prepaid, addressed to the parties for whom
intended at the addresses indicated for each party as set forth below:
Company: Individual:
WGNB CORP. Xxxxxx X. Xxxxx
000 Xxxxx Xxxxxx 0000 Xxxxx Xxxxx
Xxxx Xxxxxx Xxx 000 Xxxxx Xxxx, XX 00000
Xxxxxxxxxx, XX 00000
Attn: President
4.4 This Agreement shall be governed by the laws of the State of
Georgia.
4.5 This Agreement may be executed with counterpart signature
pages, all of which together shall constitute one and the same Agreement.
4.6 The terms of this Agreement, including the rights and
obligations of the parties hereunder, shall not supersede or amend any
additional agreement of the parties with respect to the employment of Individual
by Corporation or any compensation for services performed under such agreements,
including, but not limited to, the consideration paid pursuant to the employment
relationship between the Bank and Individual and any employee bonus plan
utilized by Corporation. This Agreement shall inure to the benefit of and be
enforceable by and binding upon the successors and assigns of each party,
including the personal or legal representatives, executors, administrators,
heirs, and legatees of Individual.
4.7 This Agreement may be amended in any manner at any time by the
Board of Directors, or the Executive Committee, of the Corporation, provided,
however, that no amendment shall affect Individual's right to receive any Cash
Bonus accrued by the Corporation prior to the date of such amendment. No
amendment, modification or alteration of the terms or provisions of this
Agreement shall be binding unless the same shall be in writing and duly executed
by the Corporation.
4.8 Time is of the essence in this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement the
day and year first written above.
Attest: WGNB CORP.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ L. Xxxxxxxx Xxxxxx
------------------------------------ ---------------------------------
Its: Executive Vice President L. Xxxxxxxx Xxxxxx, President
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(Corporate Seal)
Witness Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxxxxx /s/ Xxxxxx X. Xxxxx
--------------------------------------- ------------------------------------
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EXHIBIT A
POINT VALUES USED IN DETERMINING CASH BONUS
Item 1
Item 1 is the product of the square of the ROA multiplied times 10.
Item 2
CAMEL Rating Points
1 5
2 0
3 No Cash Bonus or Stock Option
4 No Cash Bonus or Stock Option
5 No Cash Bonus or Stock Option
Percentage of Growth is the number of points equal to the percentage of growth
in assets from year, to year.
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EXHIBIT B
CASH BONUS CALCULATION EXAMPLE
XXXXXX X. XXXXX
EXECUTIVE BONUS SAMPLE
CALCULATION
FOR THE YEAR 1988
1. RETURN ON ASSETS:
A. Net Income After Tax Consolidation $3,467,519.03
Plus:
Bonus Accrued 1998 288,000.00
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Net Income After Tax Pre-Bonus $3,755,519.03
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B. Average Regulatory Assets Consolidated
12/31/97 $ 198,358,000
FRY - 9 five quarter avg. of 3/31/98 212,070,000
period end balances per 6/30/98 218,304,000
UPBR Holding Co. Report 9/30/98 222,000,000
instructions 12/31/98 226,000,000
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$ 215,346,400
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C. Return on Assets 1.7439%
D. Points: (ROA(2) x 10) 30.41
2. CAMEL RATING:
A. OCC CAMEL Rating of 1
B. Points: CAMEL 1 equals 5 points 5.00
3. GROWTH:
A. Net Average Assets 1998 218,515,877
Net Average Assets 1997 190,987,174
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Asset Growth Percentage 14.41%
B. Points: Growth Percent = points 14.41
4. BONUS CALCULATION
Total Points from 1 through 3 above 49.83
Divided by 133.33 equals Percent Bonus .3737%
Times Net Income, After Tax, Pre Bonus (1.A.) $3,755,519.03
Equals: Bonus Amount $ 14,034.37
Times .5 multiplier .50
Equals Estimated 1998 Cash Bonus $ 7,017.19
Less: 1st qtr draw N/A
2nd qtr draw N/A
3rd qtr draw 0.00
4th qtr draw 0.00
Equals: ESTIMATED Amount Due Xxxxxx X. Xxxxx in January 1999 $ 7,017.19
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EXHIBIT C
FORM OF WGNB CORP.
INCENTIVE STOCK OPTION AGREEMENT
This Incentive Stock Option Agreement ("Agreement"), dated as
of________________ (the "Date of Grant"), is made and entered into by WGNB
CORP., a Georgia corporation ("WGNB") and Xxxxxx X. Xxxxx (the "Grantee"), who
is an employee or officer of WGNB or one of its subsidiaries (the Grantee's
employer is sometimes referred to herein as the "Employer").
WHEREAS, this Board of Directors of WGNB (the "Board") has adopted the
WGNB CORP. Incentive Stock Option Plan (the "Plan") and the shareholders adopted
the Plan on March 8, 1994;
WHEREAS, the Plan provides for the granting of incentive stock options
by the Executive Compensation and Management Succession Committee (the
"Committee") to employees of WGNB or any subsidiary of WGNB to purchase shares
of the common stock of WGNB, par value $2.50 per share (the "Stock"), in
accordance with the terms and provisions thereof, and
WHEREAS, the Committee considers the Grantee to be a person who is
eligible for a grant of incentive stock options under the Plan, and has
determined that it would be in the best interest of WGNB to grant the incentive
stock options documented herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Grant of Option
Subject to the terms and conditions hereinafter set forth, WGNB, with
the approval and at the direction of the Committee, hereby grants to the
Grantee, as of_______________, 2000 (the "Date of Grant"), an option to purchase
up to _________________________shares of Stock at a price of_______________
dollars ($___) per share, which is one hundred percent (100%) the fair market
value. Such option is hereinafter referred to as the "Option" and the shares of
stock purchasable upon exercise of the Option are hereinafter sometimes referred
to as the "Option Shares". The Option is intended by the parties hereto to be,
and shall be treated as, an incentive stock option, as such term is defined
under Section 422 of the Internal Revenue Code of 1986, as amended ("Code").
2. Exercise of Option
Subject to such further limitations as are provided herein, the Option
shall become exercisable on the fifth anniversary of the Date of Grant.
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3. Termination of Option
(a) The Option and all rights hereunder with respect thereto, to
the extent such rights shall not have been exercised, shall terminate and become
null and void after the expiration of ten (10) years from the Date of Grant (the
"Option term").
(b) Upon the occurrence of the Grantee's ceasing for any reason to
be employed by the Employer (such occurrence being a "termination of the
Grantee's employment"), the Option, to the extent not previously exercised,
shall terminate and become null and void immediately upon such termination of
the Grantee's employment, except as provided herein.
Upon a termination of the Grantee's employment by reason of retirement,
disability or death, the Option may be exercised during the following periods,
but only to the extent that the Option was outstanding and exercisable on any
such date of retirement, disability or death: (1) the one-year period following
the date of the Grantee's death, in the case of the Grantee's death during his
employment by the Employer and (ii) the three-month period following the date of
such termination in the case of termination of employment due to the retirement
or disability of the Grantee. In no event, however, shall any such period extend
beyond the Option Term.
(c) In the event of the death of the Grantee, the Option may be
exercised by the grantee's legal representative(s), but only to the extent that
the Option would otherwise have been exercisable by the Grantee.
(d) A transfer of the Grantee's employment between WGNB and any
subsidiary of WGNB, or between any subsidiaries of WGNB, shall not be deemed to
be a termination of the Grantee's employment.
(e) Notwithstanding any other provisions set forth herein or in
the Plan, if the Grantee shall commit any act or malfeasance or wrongdoing
affecting WGNB or any subsidiary of WGNB, any unexercised portion of the Option
shall immediately terminate and be null and void.
4. Exercise of Options
(a) The Grantee may exercise the Option with respect to all or any
part of the number of Option Shares then exercisable hereunder by giving the
Secretary of WGNB written notice of intent to exercise. The notice of exercise
shall specify the number of Option Shares as to which the Option is to be
exercised and the date of exercise thereof.
(b) Full payment (in U.S. dollars) by the Grantee of the option
price for the Option Shares purchased shall be made on or before the exercise
date specified in the notice of exercise in cash, or, with the prior written
consent of the Committee, in whole or in part through the surrender of
previously acquired shares of Stock at their fair market value, as determined by
the Committee, on the exercise date.
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On the exercise date specified in the Grantee's notice or as soon
thereafter as is practicable, WGNB shall cause to be delivered to the Grantee, a
certificate or certificates for the Option Shares then being purchased (out of
theretofore unissued Stock or reacquired Stock, as WGNB may elect) upon full
payment for such Option Shares. The obligations of WGNB to deliver Stock shall,
however, be subject to the condition that if at any time the Committee shall
determine in its discretion that the listing, registration or Qualification of
the Option Shares upon any securities exchange or under any state or federal
law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of or in connection with, the Option or
the issuance or purchase of Stock unless such listing, registration,
Qualification, consent or approval shall have been effected or obtained free of
any conditions not acceptable to the Committee.
(c) If the Grantee fails to pay for any of the Option Shares
specified in such notice or fails to accept delivery thereof, the Grantee's
right to purchase such Option Shares may be terminated by WGNB. The date
specified in the Grantee's notice as of the date of exercise shall be deemed the
date of exercise of the Option, provided that payment in full for the Option
Shares to be purchased upon such exercise shall have been received by such date.
5. Adjustment of and Changes in Stock of WGNB
(a) In the event of a reorganization, recapitalization, change of
shares, stock split, spin-off, stock dividend, reclassification, subdivision or
combination of shares, merger, consolidation, rights offering, or any other
change in the corporate structure or shares of capital stock of WGNB, the
Committee shall make such adjustment as it deems appropriate in the number and
kind of shares of Stock subject to the Option or in the option price; provided,
however, that no such adjustment shall give the Grantee any additional benefits
under the Option.
(b) If the Company shall be a party to any reorganization
involving a merger, consolidation or acquisition of the Stock or the assets of
the Company, the Committee, in its discretion, may:
(i) Declare that the Option granted hereunder shall
become exercisable immediately notwithstanding the provisions of this Agreement
regarding exercisability and that the Option shall terminate thirty (30) days
after the Committee gives written notice to Grantee of his immediate right to
exercise the Option and of the Committee's decision to terminate the Option if
not exercised within such thirty-day period; or
(ii) Notify the Grantee that the Option granted hereunder
shall apply with appropriate adjustments as determined by the Committee to the
securities of the resulting corporation to which holders of the number of shares
of Stock subject to the Option would have been entitled.
(c) The adoption of a plan of dissolution or liquidation by the
Board of Directors and the shareholders of the Company shall cause the Option to
terminate to the extent not exercised prior to the adoption of the plan of
dissolution or liquidation by the shareholders; provided, however that the
Committee, in its discretion, may declare that the Option shall become
exercisable
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immediately notwithstanding the provisions of this Agreement regarding
exercisability; and provided further that in the event of the adoption of a plan
of dissolution or liquidation in connection with a reorganization as described
in the first sentence of subparagraph (b), the Option shall be governed by and
be subject to the provisions of such sentence.
(d) If any rights or warrants to subscribe for additional shares are
given pro rata to holders of outstanding shares of the Stock, the Grantee shall
be entitled to the same rights or warrants on the same basis as holders of the
outstanding shares exercised on or prior to the date of the expiration of such
rights or warrants.
6. Fair Market Value
For purposes of the Plan, the "fair market value" of the shares of
Stock shall be the mean between the high "bid" and the low "asked" prices of the
Stock in the over-the-counter market on the date on which such value is to be
determined or, if no shares were traded on such day, on the next preceding day
on which shares were traded, as reported. If the Stock is not regularly traded
in the over-the-counter market but is registered on a national securities
exchange, the "fair market value" of the shares of Stock shall mean the closing
price of the Stock on such national securities exchange on the day on which such
value is to be determined or, if no shares were traded on such day, on the next
preceding day on which shares were traded, as reported by National Association
of Securities Dealers Automated Quotation Service or other national quotation
service. If the stock is not regularly traded in the over-the-counter market or
registered in a national securities exchange, the Committee shall determine the
fair market value of the common stock in good faith in accordance with Code
Section 422(c)(1) and accompanying Treasury Regulations.
7. No Rights of Stockholders
Neither the Grantee nor any personal representative shall be, or shall
have any of the rights and privileges of, a stockholder of WGNB with respect to
any shares of Stock purchasable or issuable upon the exercise of the Option, in
whole or in part, prior to becoming the holder of record of such shares.
8. Non-Transferability of Option
During the Grantee's lifetime, the Option hereunder shall be
exercisable only by the Grantee or any guardian or legal representative of the
Grantee, and the Option shall not be transferable except, in case of the death
of the Grantee, by will or the laws of descent and distribution, nor shall the
Option be subject to attachment, execution or other similar process. In the
event of (a) any attempt by the Grantee to alienate, assign, pledge, hypothecate
or otherwise dispose of the Option, except as provided for herein, or (b) the
levy of any attachment, execution or similar process upon the rights or interest
hereby conferred, WGNB may terminate the Option by notice to the Grantee and it
shall thereupon become null and void.
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9. Employment Not Affected
The granting of the Option nor its exercise shall not be construed as
granting to the Grantee any right with respect to continuance of employment with
the Employer. Except as may otherwise be limited by a written agreement between
the Employer and the Grantee, the right of the Employer to terminate at will the
Grantee's employment with it at any time (whether by dismissal, discharge,
retirement or otherwise) is specifically reserved by WGNB, as the Employer or on
behalf of the Employer (whichever the case may be), and acknowledged by the
Grantee.
10. Amendment of Option
This Agreement and the terms of the Option may be amended by the Board
or the Committee at any time (I) if the Board or the Committee determines, in
its sole discretion, that amendment is necessary or advisable due to any
addition to or change in the Code or in the regulations issued thereunder, or
any federal or state securities law or other law or regulation, which change
occurs after the Date of Grant and by its terms applies to the Option; or (ii)
other than in the circumstances described in clause (i), with the consent of
WGNB and the Grantee.
11. Notice
Any notices or other communications to any party pursuant to or
relating to this Agreement and transactions provided for herein shall be deemed
to be given, delivered or received when delivered personally or three days after
being deposited in the United States Mail, registered or certified, and with
proper postage and registration and certification fees prepaid, addressed to the
parties for whom intended at the addresses indicated for each party as set forth
below:
WGNB: Grantee:
WGNB Corp. Xxxxxx X. Xxxxx
000 Xxxxx Xxxxxx 0000 Xxxxx Xxxxx
Xxxx Xxxxxx Xxx 000 Xxxxx Xxxx, XX 00000
Xxxxxxxxxx, XX 00000
Attn.: President
12. Incorporation of Plan by Reference
The Option is granted pursuant to the terms of the Plan, the terms of
which are incorporated herein by reference, and the Option shall in all respects
be interpreted in accordance with the Plan. The committee shall interpret and
construe the Plan and this instrument, and its interpretations and
determinations shall be conclusive and binding on the parties hereto and any
other person claiming an interest, with respect to any issue arising hereunder
or thereunder.
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13. Governing Law
The validity, construction, interpretation and effect of this Agreement
shall exclusively be governed by and determined in accordance with the laws of
the State of Georgia.
14. Counterparts
This Agreement may be executed with counterpart signature pages, all of
which together shall constitute one and the same Agreement.
15. Successors and Assigns
This Agreement shall inure to the benefit of and be enforceable by and
binding upon the successors and assigns of each party, including the personal or
legal representatives, executors, administrators, heirs and legatees of Grantee.
IN WITNESS WHEREOF, WGNB has caused its duly authorized officers to
execute and attest the Agreement, and to apply to corporate seal hereto, and the
Grantee has placed his or her signature hereon, effective as of the date first
written above.
Attest: WGNB CORP.
By: By:
----------------------------- ------------------------
----------------------------- L. Xxxxxxxx Xxxxxx
Its: Its President
----------------------------
GRANTEE:
------------------------------- --------------------------
Witness Xxxxxx X. Xxxxx
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