Exhibit 10.1
Employment Agreement
This EMPLOYMENT AGREEMENT is made, entered into, and is effective as of
this 22 day of September, 1999, (hereinafter referred to as the "Effective
Date"), by and between NORTH GEORGIA NATIONAL BANK, a National Banking
Association with principal offices located in Calhoun, Georgia, (hereinafter
referred to as the "Bank"), and XXXXX X. XXXXX (hereinafter referred to as the
"Executive").
WHEREAS, the Bank presently desires to employ the Executive in the
capacity of Chief Executive Officer, and
WHEREAS, the Executive possesses considerable experience and an intimate
knowledge of the banking business; and
WHEREAS, the Bank recognizes that the Executive's contributions will be
substantial and meritorious and, as such, the Executive has demonstrated unique
qualifications to act in an executive capacity for the Bank; and
WHEREAS, the Bank is desirous of enticing the Executive from the position
where he is presently employed and of assuring the continued employment of the
Executive in the above stated capacities for the Bank, and the Executive is
desirous of having such assurance;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in the Agreement, and of other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
Article 1. Term of Employment.
The Bank hereby agrees to employ the Executive and the Executive hereby
agrees to continue to serve the Bank, in accordance with the terms and
conditions set forth herein, for an initial period of three (3) years,
commencing as of the Effective Date of this Agreement as indicated above.
Upon each new day of the three (3) year period of employment from the
Effective Date until the Executive's sixty-fifth (65th) birthday, the term of
this Agreement automatically
Page 1 of 22
shall be extended for one (1) additional day, to be added to the end of the
then-existing three (3) year term. Accordingly, at all times prior to (i) the
Executive's attaining age sixty-five (65) and (ii) a notice of employment
termination (or an actual termination), the term of this Agreement shall be
three (3) full years. However, either party may terminate this Agreement by
giving the other party a 90-day written notice of intent not to renew, as
further set forth in Article 6.
Additionally, the automatic extensions of the term of this Agreement shall
immediately be suspended upon an employment termination by reason of Death,
Disability, (as defined in ss. 6.2) or Retirement (as defined in ss. 6.1), or an
employment termination made voluntarily by the Executive (other than for Good
Reason as defined in ss. 6.6), or involuntarily for Cause (as defined in ss.
6.5). The provisions applicable to such suspensions of the term of this
Agreement are set forth in those sections pertaining to each of such types of
employment terminations.
In the event the Executive gives notice of employment termination, the
term of this Agreement shall expire upon the ninetieth (90th) day following the
delivery to the Bank of such notice of employment termination. Except as
otherwise provided in the following paragraph with respect to a voluntary
termination for Good Reason (defined in ss. 6.6 herein), a voluntary employment
termination by the Executive shall result in the termination of the rights and
obligations of the parties under this Agreement; provided, however, that the
terms and provisions of Article 9 shall continue to apply.
In the event the Bank desires to involuntarily terminate the employment of
the Executive (for purposes of this Agreement, a voluntary employment
termination by the Executive for Good Reason shall be treated as an involuntary
termination of the Executive's employment without Cause), the Bank shall deliver
to the Executive a notice of employment termination, and the following
provisions shall apply:
(a) In the event the involuntary termination is for Cause (defined in
ss. 6.5 herein), the term of this Agreement shall terminate on the
ninetieth (90th) day following the delivery to the Executive of such
notice of termination. Such a termination for Cause shall result in
the termination of all rights and obligations of the parties under
this Agreement provided, however, that the terms and provisions of
Article 9 shall continue to apply, and ss. 6.5 shall apply until
payments required hereunder have been made.
(b) In the event the involuntary termination is without Cause, the
Executive shall be entitled to receive the severance benefits set
forth in ss. 6.4 herein; provided,
Page 2 of 22
however, that the terms and provisions of Article 9 shall continue
to apply and ss. 6.4 shall apply until payments required thereunder
have been made.
Article 2. Position and Responsibilities.
During the term of this Agreement, to Executive agrees to serve as Chief
Executive Officer of the Bank, and as a member of the Bank's Board of Directors
if so elected, and at a future higher level position, is so designated by the
Board. In Executive's capacity as Chief Executive Officer of the Bank, the
Executive shall report directly to the Chairman of the Board of Directors and
shall be in primary control and command of the Bank and have management
responsibility for all portions of the organization's operating line, as well as
staff units. The Executive shall have the same status, privileges, and
responsibilities normally inherent in such capacities in financial institutions
of similar size and character to the Bank.
During the term of this agreement the Executive may be promoted to a
higher level position such as Chairman of the Board. In such event, the
Executive shall have the same status, privileges, compensation, benefits, and
responsibilities normally inherent in such capacities in financial institutions
of similar size and character to the Bank.
Article 3. Standard of Care.
During the term of this Agreement the Executive agrees to devote
substantially all of Executive's full time, attention, and energies to the
Bank's business and shall not be engaged in any other business activity, whether
or not such business activity is pursued for gain, profit, or other pecuniary
advantage without the prior knowledge and causes of the Board. However, the
Executive may serve as a director of other companies so long as such service is
not injurious to the Bank, and provided that such service is approved by the
Board of the Bank as may be required under the by-laws of the Bank. The
Executive covenants, warrant, and represents that the Executive shall do the
following:
(a) Devote his full and best efforts to the fulfillment of his
employment obligations with the Bank; and
(b) Exercise the highest degree of loyalty and the highest standards of
conduct in the performance of his duties.
This Article 3 shall not be construed as preventing the Executive from
investing assets in such form or manner so long as such investment will not
require Executive's
Page 3 of 22
services in the daily operations of the affairs of the companies in which such
investments are made.
Article 4. Compensation.
As remuneration for all services to be rendered by the Executive during
the term of this Agreement, and as consideration for complying with the
covenants herein, the Bank shall pay and provide to the Executive the following:
4.1 Base Salary:
The Bank shall pay the Executive a Base Salary in an amount which shall be
established from time to time by the Board of Directors of the Bank or the
Board's designee; provided, however, that such Base Salary shall not be less
than one hundred fifty thousand dollars ($150,000.00) per year and if
subsequently increased shall not be less than such increased amount (hereinafter
referred to as "Base Salary"). This Base Salary shall be paid to the Executive
pursuant to regular payroll practices and procedures of the Bank throughout the
year.
The annual Base Salary shall be reviewed at least annually following the
Effective Date of this Agreement and for so long as this Agreement is in force,
to ascertain in the judgement of the Board or the Board's designee, the amount
by which such Base Salary should be increased, based primarily on the
performance of the Executive during the year. Each year, the Base Salary shall
be increased by an amount equal to the percent of change in the Consumer Price
Index (CPI) as indicated by "The Consumer Price Index for All Urban Consumers
(CPI-U) for the U.S. City Average for All Items," published by the U.S.
Department of Labor, Bureau of Labor Statistics (BLS) in the preceding year
(January 1 to December 31) ended just prior to the anniversary review date.
Beginning in the Year 2001 and thereafter, the Base Salary increase shall always
be at least three percent (3%) annually. When so increased, the Base Salary as
stated above shall, likewise, be increased for all purposes of this Agreement.
4.2 Annual Bonus:
In addition to his Base Salary, the Executive shall be entitled to receive
an annual cash bonus (hereinafter referred to as the "Bonus") from the Bank
under an Executive Incentive Plan.
Both the Bank and the Executive acknowledge and understand that such
Executive
Page 4 of 22
Incentive Plan may be amended from time to time by the Bank. However, in no
event shall the Bonus paid by the Bank to the Executive be less than two percent
(2%) of the before-tax profits of the Bank, as determined by the annual
accounting report prepared for the Board of Directors. Any earned annual Bonus
shall be paid each year on or before March 15th.
4.3 Signing Bonus:
Within fifteen days of the Effective Date of this Agreement, the Bank
shall pay to the Executive a one time, lump sum Signing Bonus in the amount of
seventy thousand dollars ($70,000.00).
4.4 Long-Term Incentives:
During the term of this Agreement the Executive shall be entitled to
participate in any and all long-term incentive programs of the Bank at a level
that is commensurate with Executive's position with the Bank. In the event of a
sale or transfer of the Bank during to term of this Agreement, then the
Executive shall receive from the Bank one percent (1%) of the total sale price
of the Bank from such transaction. For purposes of the Agreement to terms sale
and transfer shall mean to sale of substantially all of the Bank's assets, a
change of control of the Bank, a sale of more than twenty-five percent (25%) of
the Bank's stock, or any merger or consolidation of the Bank with or into any
other entity from which the Bank or its shareholders realize cash or marketable
securities.
4.5 Deferred Compensation:
The Bank hereby promises, warrants, and agrees that, within six (6) months
of the Effective Date of this Agreement, it will implement a Deferred
Compensation package for the Executive in the form of an Excess Benefit Plan
which will maximize the annual defined contribution limit established by the IRS
in each year for the Executive. The specific terms and provisions of such Excess
Benefit Plan shall be stipulated by a separate Agreement and Plan Document.
4.6 Retirement Benefits:
The Bank shall provide to the Executive participation in all Bank
qualified defined benefit and defined contribution retirement plans that are
provided to other Bank employees and to other similarly situated Bank
executives, subject to the eligibility, contributions, and participation
requirements and limitations of such plans. The obligations of the Bank pursuant
to this ss. 4.6 shall survive the termination of this Agreement.
Page 5 of 22
In addition to such other contributions the Bank may make to defined
benefit plans and/or defined contribution plans on behalf of the Executive, in
the event that the Bank's annual profit sharing contribution shall ever be less
than four percent (4%) for all Bank employees, then and in such event, the Bank
shall make up the difference to the Executive by way of a contribution to a
Deferred Compensation Agreement which the Bank shall establish and maintain for
the Benefit of the Executive.
4.7 Employee Benefits:
The Bank shall provide to the Executive all benefits to which other
executives and employees of the Bank are entitled to receive, as commensurate
with the Executive's position, subject to the eligibility requirements and other
provisions of such plans or arrangements. Such benefits shall include, but not
limited to, group term life insurance, and short-term comprehensive health and
major medical insurance, dental and vision insurance, and long-term disability.
In addition to those other benefits which other executives and employees
of the Bank may be entitled to receive, the Bank shall provide to the Executive
the following:
(a) Within the first calendar quarter of the year 2000, the Bank shall
pay the full, up-front, and total premium for a Split-Dollar Life
Insurance Policy of $600,000.00 on behalf of the Executive under
which the Bank shall add an endorsement to the policy providing that
the full cash value of the policy shall belong to the Executive and
that the total death benefits of the policy shall be distributed to
the designated beneficiary(ies) of the Executive upon his death so
long as the Bank is reimbursed for the premiums paid on the policy
out of proceeds of the death benefits;
(b) Four weeks Vacation during each calendar year;
(c) Fully vested stock options of 75,000 shares of bank stock issued at
$10.00 per share for the duration of this Agreement. Within thirty
(30) days of the Effective Date of this Agreement, the Bank agrees
to execute a separate Stock Option Agreement relating the more
specific terms of the stock transfer as either an Incentive Stock
Option (ISO) Plan or a Non-Qualified Stock Plan. While the type of
Stock Option Agreement shall remain at the discretion of the Board,
the Board agrees to give careful consideration and preference
towards an ISO Plan on behalf of the Executive. In the event that
the Board decides not to sponsor an ISO Plan, then the Bank shall
make up the difference in the
Page 6 of 22
cost of additional tax liability to the Executive, either through
cash or additional shares of stock to the him; and
(d) Fully vested stock option for six (6) months from the Effective Date
of this Agreement to purchase 25,000 shares of bank from the current
shareholders at $10.00 per share.
4.8 Perquisites:
The Bank shall provide to the Executive, at the Bank's cost, all
perquisites to which other similarly situated executives of the Bank are
entitled to receive and such other perquisites which are suitable to the
character of the Executive's position with the Bank and adequate for the
performance of his duties hereunder.
In addition to those other benefits which other executives and employees
of the Bank may be entitled to receive, the Bank shall provide to the Executive
the following:
(a) Full and complete use of a Chevrolet Suburban automobile (or such
other comparable vehicle of similar model and value as the Executive
may select), including all gas, maintenance, insurance, and all
other costs or expense of operation;
(b) Fully paid and maintained memberships (including purchase and/or
transfer fees as applicable) to the following clubs and
organizations:
(1) The Farm Country Club;
(2) Ocean Forest Country Club;
Each such membership shall be in the name of the Executive as the
solely named owner of the individual membership, and the ownership
rights and privileges of such memberships shall survive the
termination of this Agreement for any reason or reasons. The amount
for which the Bank will be responsible as to the purchase and/or
transfer fees for such memberships shall not exceed $100,000.00
If during the three consecutive years following the Effective Date
of this Agreement, the Executive voluntarily terminates this
Agreement pursuant to ss. 6.3, then the Executive shall reimburse
the Bank for a portion of these membership purchase and/or transfer
fees according to the following schedule:
Page 7 of 22
(i) reimbursement of 100% of membership purchase and/or
transfer fees paid by the Bank should the Executive
voluntarily terminate this Agreement during the first
twelve (12) month period following the Effective Date;
(ii) reimbursement of two-thirds (2/3) of membership purchase
and/or transfer fees paid by the Bank should the
Executive voluntarily terminate this Agreement during
the second twelve (12) month period following the
Effective Date; or
(iii) reimbursement of one-third (1/3) of membership purchase
and/or transfer fees paid by the Bank should the
Executive voluntarily terminate this Agreement during
the third twelve (12) month period following the
Effective Date
The Executive shall not be responsible for reimbursement of any
membership purchase and/or transfer fees paid by the Bank in the
event this Agreement continues for more than three full years beyond
the Effective Date. Should the Executive become responsible for any
such reimbursements to the Bank, then the Executive shall make such
reimbursements to the Bank in three (3) equal annual payments, the
first of which shall be due six (6) months following the date on
which the Executive voluntarily terminates this Agreement and this
first due date shall establish the anniversary dates on which the
remaining two (2) reimbursement installment payments shall be due;
(c) Fully paid and maintained memberships (including purchase and/or
transfer fees as applicable) to the following clubs and
organizations:
(1) Young Presidents Organization;
(2) Commerce Club; and
(3) Any other clubs or organizations which may be added upon
approval of the Board
Each such membership shall be in the name of the Executive as the
solely named owner of the individual membership, and the ownership
rights and privileges of such memberships shall survive the
termination of this Agreement for any reason or reasons;
(d) Fully paid annual physical medical examination, including the costs
for travel,
Page 8 of 22
hotel, and all meals for a minimum of three (3) nights stay, for the
Executive and his spouse provided by a medical practitioner as
chosen by the Executive and at any location within the United States
as chosen by the executive, including but not limited to the
Greenbrier Hotel. Should the Executive, at his option and
discretion, not go for this annual physical in any given year, then
the Bank shall not be considered to have violated the terms of this
paragraph;
(e) Fully paid attendance, including but not limited to the costs for
travel, hotel, and all meals, for the Executive and the spouse of
the Executive for the following conferences:
(1) Xxxxxxx Xxxxxx'x Association (GBA); and
(2) Young Presidents Organization (YPO); or a comparable
organization.
4.9 Right to Change Plans:
By reason of this Article 4, the Bank shall not be obligated to
perpetually maintain, or refrain from changing, amending, or discontinuing any
benefit plan, program, or perquisite, so long as such changes are similarly
applicable to the Executive and all other participants under such plan or
program. The Bank shall always give the Executive advance written notice of in
change, amendment, or discontinuation to any such plan, program, or perquisite.
If the benefit to the Executive is diminished by such change, amendment, or
discontinuation, then the Bank shall compensate the Executive for such by way of
the dollar amount and value by which such benefit is reduced.
Article 5. Expenses.
The Bank shall pay or reimburse the Executive for all ordinary and
necessary expenses, in a reasonable amount, which the Executive incurs in
performing his duties under this Agreement including, but not limited to,
travel, entertainment, professional dues and subscriptions, and all dues, fees,
and expenses associated with membership in various professional, business, and
civic associations and societies in which the Executive's participation is in
the best interest of the Bank.
Article 6. Employment Terminations.
6.1 Termination Due to Retirement or Death:
In the event the Executive's employment is terminated while this Agreement
is in
Page 9 of 22
force by reason of early or normal retirement (as defined under the then
established rules of the Bank's tax-qualified retirement plan, hereinafter
referred to as "Retirement"), or death, then and in such event, the Executive's
benefits shall be determined in accordance with the Banks retirement, survivors'
benefits, insurance, and other applicable programs of the Bank then in effect.
Upon the effective date of such termination, the Banks obligation under this
Agreement to pay and provide to the Executive the elements of pay described in
ss. ss. 4.1, 4.2, and 4.3 shall immediately expire.
However, the Executive shall receive all other rights and benefits that he
is vested in, pursuant to other plans and programs of the Bank. In addition,
subject to any conflicting terms of any short-term incentive program which would
provide for greater benefits following such termination, the Bank shall pay to
the Executive (or the Executives beneficiaries or estate, as applicable), a pro
rata share of Executive's Bonus for the fiscal year in which employment
termination occurs, based on base bonus opportunity (as defined in the Executive
Incentive Plan) for such fiscal year. This pro rata Bonus amount shall be
determined as a function of the number of days in such fiscal year prior to the
date of employment termination in relation to the total number of days in such
fiscal year. The pro rata Bonus shall be paid within thirty (30) days of the end
of the year in which the Effective Date of employment termination occurs.
Also, all un-vested stock awards (including, but not limited to, any stock
options and restricted stock) will vest in full on the date of termination Death
or Retirement.
6.2 Termination Due to Disability:
In the event that the Executive becomes Disabled (as defined below) during
the term of this Agreement and is, therefore, unable to perform his or her
duties as set forth herein for more than one hundred eighty (180) total calendar
days during any period of twelve (12) consecutive months, the Bank shall have
the right to terminate the Executive's active employment as provided in this
Agreement. The Board shall deliver written notice to the Executive of the Bank's
intent to terminate the Executive's employment for Disability at least ninety
(90) calendar days prior to the effective date of such termination. Such written
termination may be given to the Executive during the one hundred eighty (180)
day Disability period so long as the notice is prospective and provides that
termination shall not occur should the Executive recover and return to
employment at the Bank. A termination of employment for Disability shall become
effective upon the end of the ninety (90) day notice period, specified above.
Upon such effective date, the Bank's obligation to pay and provide to the
Executive the elements of pay described in ss. ss. 4.1, 4.2, and 4.3 shall
immediately expire.
Page 10 of 22
However, the Executive shall receive all rights and benefits that he is
vested in, pursuant to other plans and programs of the Bank. In addition,
subject to any conflicting terms of any short-term incentive program which would
provide for greater benefits following such termination, the Bank shall pay to
the Executive a pro rata share of his Bonus for the fiscal year in which
employment termination occurs, based on base bonus opportunity for such fiscal
year. This pro rata Bonus amount shall be determined as a function of the number
of days in such fiscal year prior to the effective date of termination for
Disability, in relation to the total number of days in such fiscal year. The pro
rata Bonus shall be paid within thirty (30) days of the end of the year in which
the Effective Date of termination for Disability occurs.
Also, all un-vested stock awards (including, but not limited to, any stock
options and restricted stock) will vest in full at the date of termination for
Disability.
The term "Disability" shall mean, for all purposes of this Agreement, the
incapacity of the Executive, due to injury, illness, disease, or bodily or
mantel infirmity, to engage in the performance of substantially all of the usual
duties of employment with the Bank as contemplated by Article 2 herein, such
Disability to be determined by competent medical advice from one (1) or more
individual doctors, qualified to give such professional medical advice. The
Executive consents to be examined by such individual(s) who are qualified to
give such professional medical advice.
It is expressly understood that the Disability of the Executive for a
period of one hundred eighty (180) calendar days or less in the aggregate during
any period of twelve (12) consecutive months, in the absence of any reasonable
expectation that the Disability will exist for more than such a period of time,
shall not constitute a failure by Executive to perform his or her duties
hereunder and shall not be deemed a breach or default, and the Executive shall
receive full compensation for any such period or fix any other temporary illness
or incapacity during the term of this Agreement.
6.3 Voluntary Termination by the Executive:
The Executive may terminate this Agreement at any time by giving the Board
of Directors of the Bank written notice of intent to terminate, delivered at
least ninety (90) calendar days prior to the effective date of such termination.
This ss. 6.3 shall not apply if the Executive terminates employment because of
Retirement.
The Bank shall pay the Executive a full Base Salary, at the rate then in
effect as provided in ss. 4.1 herein, through the effective date of termination,
plus all other benefits to
Page 11 of 22
which the Executive has a vested right at that time (for this purpose, the
Executive shall not be paid any Bonus with respect to the fiscal year in which
voluntary termination under this ss. 6.3 occurs). In the event that the
voluntary termination is for Good Reason, the terms of ss. 6.6 herein shall
govern the parties' rights and obligations hereunder.
6.4 Involuntary Termination by the Bank without Cause:
At any time during the term of this Agreement the Board may terminate the
Executive's employment as provided under this Agreement for reasons other than
Death, Disability, Retirement, or for Cause, by notifying the Executive in
writing of the Bank's intent to terminate, at least ninety (90) calendar days
prior to the effective date of such termination.
Subject to the terms of Article 7 herein, following the expiration of the
ninety (90) day notice period, the Bank shall pay to the Executive a lump-sum
cash payment equal to the present value of the sum of the following amounts:
(a) The Base Salary which would have been paid to the Executive
throughout the remaining year of the term of this Agreement;
(b) The annual bonus amount in the year of employment termination,
calculated at the higher of the base bonus opportunity or
anticipated actual, multiplied by the remaining years of the term of
this Agreement;
(c) The annualized long-term incentive award for the year in which
termination occurs, at the higher of the targeted level of award or
anticipated actual, multiplied by the remaining years of the term of
this Agreement; and
(d) The amount of the Executive's annual club dues bonus in the year of
termination, multiplied by the remaining years of the term of this
Agreement.
For purposes of making the present value calculations described above, the
Bank shall treat such payments as if they were made at the point in time when
each such payment is scheduled to have been made.
In addition, the Bank shall make a prorated payment of the Executive's
base bonus for the bonus year in which termination occurs. Payment of the base
bonus shall be made in cash, in one lump sum, at the same time the payments
described above are made.
Page 12 of 22
Also, all un-vested stock awards (including, but not limited to, any stock
options and restricted stock) will vest on the date of termination.
Subject to the terms of Article 7 herein, the Bank shall continue the
Executive's health and welfare benefit coverage for the entire three (3) year
period following employment termination, at the same cost, and on the same terms
as existed immediately prior to employment termination. The Bank and the
Executive thereafter shall have no further obligations under this Agreement.
Notwithstanding the foregoing, in the event the Executive obtains Comparable
Employment as defined in Article 7 hereof, the Bank's obligation to continue the
Executive's health and welfare benefit coverage pursuant to this ss. 6.4 shall
immediately cease.
Further, the provisions of ss. 4.4 pertaining to the Executive receiving
one percent (1%) of the total sale price of the Bank shall survive the
termination of the Executive if such termination should be without cause by the
Bank and should the sale or change of control of the Bank occur within three (3)
years of the date of termination by the Bank without cause. In such an event,
the Executive's right to one percent (1%) of the total sale price of the Bank
shall remain and continue in full force and affect for the then current three
(3) year period of this Agreement beyond the date of termination of the
Executive by the Bank without cause.
Also, the Bank shall transfer to the Executive title to the Executive's
Bank car, without cost to the Executive, and shall pay to the Executive a lump
sum cash payment in an amount necessary to fully gross-up the income tax effect
of said transfer.
6.5 Termination for Cause:
Nothing in this Agreement shall be construed to prevent the Board from
terminating the Executive's employment under this Agreement for "Cause."
"Cause" shall be defined as the conviction of the Executive for the
commission of an act of fraud, embezzlement, theft, or other criminal act
constituting a felony under U.S. laws involving moral turpitude; or the gross
neglect of the Executive in the performance of his material duties under this
Agreement, for reasons other than the Executive's death, Disability, or
Retirement. The Bank's Board of Directors, by majority vote, shall provide the
Executive with notice of the reasons the Board believes Cause may exist and
provide the Executive with thirty (30) days to cure the alleged Cause and/or
otherwise to respond to the allegation that Cause exists.
Page 13 of 22
In the event this Agreement is terminated by the Board for Cause, the Bank
shall pay the Executive a base Salary through the effective date of the
employment termination and the Executive shall immediately thereafter forfeit
all rights and benefits (other than vested benefits) Executive would otherwise
have been entitled to receive under this Agreement. The Bank and the Executive
thereafter shall have no further obligations under this Agreement and the
provisions of Article 9 shall not apply. Provided, however, that any termination
for Cause under this provision shall be subject to challenge by the Executive
pursuant to Article 12 of this Agreement.
6.6 Termination for Good Reason:
At any time during the term of this Agreement the Executive may terminate
this Agreement for Good Reason (as defined below) by giving the Board of
Directors of the Bank ninety (90) calendar days written notice of intent to
terminate, which notice sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for such termination. The Executive's
ability to terminate for Good Reason is contingent upon his agreement to allow
the Bank to remedy, within thirty (3) days of notice, the events constituting
Good Reason.
Upon the failure of the Bank to remedy the events constituting Good Reason
within thirty (30) days of notice from the Executive, the Good Reason
termination shall become effective, and the Bank shall pay and provide to the
Executive the benefits set forth in ss. 6.4 herein (as if the termination were
an involuntary termination without Cause).
Good Reason shall mean, without the Executive's express prior written
consent the occurrence of any one or more of the following:
(a) The assignment of the Executive to duties materially inconsistent
with the Executive's authorities, duties, responsibilities, and
status (including titles and reporting requirements) as an officer
of the Bank, or a material reduction or alteration in the nature or
status of the Executive's authorities, duties, or responsibilities
from those in effect as of the Effective Date (or as subsequently
increased), other than an insubstantial and inadvertent act that is
remedied by the Bank promptly after receipt of notice thereof given
by the Executive;
(b) The Bank's requiring the Executive to be based at a location in
excess of fifteen (15) miles from the location of the Executive's
principal job location or office as of the Effective Date, except
for required travel on the Bank's
Page 14 of 22
business to an extent substantially consistent with the Executive's
present business obligations;
(c) A reduction by the Bank of the Executive's Base Salary as in effect
on the Effective Date, or as the same shall be increased from time
to time;
(d) A reduction by the Bank of the Executive's aggregate incentive
opportunities under the Bank's short-term and long-term incentive
programs, as such opportunities exist on the Effective Date, or as
such opportunities may be increased after the Effective Date. For
this purpose, a reduction in the Executive's incentive opportunities
shall be deemed to have occurred in the event his targeted
annualized award opportunities and/or the degree of probability of
attainment of such annualized award opportunities, are diminished
from the levels and probability of attainment that existed as of the
Effective Date or as such opportunity and/or degree of probability
have been increased from time to time. This subsection (d) shall not
apply as a definition of "good reason" in the event that the
Executive, in his capacity as an officer of the Bank, voluntarily
makes the decision or agrees to such a reduction in incentive
programs;
(e) The failure of the Bank to maintain the Executive's relative level
of coverage under the Bank's employee benefit or retirement plans,
policies, practices, or arrangements in which the Executive
participates as of the Effective Date, both in terms of the amount
of benefits provided and the relative level of the Executive's
participation. For this purpose, the Bank may eliminate and/or
modify existing programs and coverage levels; provided, however,
that the Executive's level of coverage under all such programs must
be at least as great as is such coverage provided to executives who
have the same or lesser levels of reporting responsibilities within
the Bank's organization and the Bank must compensate the Executive
for any reduction or diminution in the value of his specific
benefits for the duration of this Agreement. This subsection (c)
shall not apply as a definition of "good reason" in the event that
the Executive, in his capacity as an officer of the Bank,
voluntarily makes the decision or agrees to such a reduction in
employee benefit plans or retirement programs, except that the
provision of ss. 4.9 as relates to diminished value shall continue
to apply;
(f) The failure of the Bank to obtain a satisfactory agreement from any
successor to the Bank to assume and agree to perform the Bank's
obligations under this
Page 15 of 22
Agreement; and
(g) Any purported termination by the Bank of the Executive's employment
that is not effected pursuant to a notice of termination satisfying
the requirements of Articles 1 and 6 herein, and for purposes of
this Agreement, no such purported termination shall be effective.
The Executive's right to terminate employment for Good Reason shall not be
affected by the Executive's incapacity due to physical or mental illness. The
Executive's continued employment shall not constitute a consent to, or a waiver
of rights with respect to, any circumstance constituting Good Reason herein.
Upon a termination of the Executive's employment for Good Reason at any
time during the term of this Agreement, the Executive shall be entitled to
receive the same payments and benefits as he is entitled to receive following an
involuntary termination of his employment by the Bank without Cause, as
specified in ss. 6.4 herein. As such, the provisions of ss. 4.4 pertaining to
the Executive receiving one percent (1%) of the total sale price of the Bank
shall survive the Executive's termination for Good Reason and should the sale or
change of control of the Bank occur within three (3) years of the date of
termination for Good Reason. In such an event, the Executive's right to one
percent (1%) of the total sale price of the Bank shall remain and continue in
full force and effect for the then current three (3) year period of this
Agreement beyond the date of termination of the Executive for Good Reason.
Article 7. No Duty to Mitigate.
As a condition to receiving the severance benefits described in ss. 6.4 or
in ss. 6.6 herein, the Executive is not required to actively seek full-time
employment during the period following employment termination.
Article 8. Excise Tax Gross-Up.
8.1 Equalization Payment:
In the event that the Executive becomes entitled to severance benefits
under ss. 6.4 or ss. 6.6 herein (hereinafter referred to as "Severance
Benefits"), if any of the Severance Benefits will be subject to the tax (the
"Excise Tax") imposed by ss. 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any similar tax that may hereafter be imposed, the Bank
shall pay to the Executive in cash an additional amount (the "Gross-Up
Page 16 of 22
Payment") such that the net amount retained by the Executive after deduction of
(i) any Excise Tax on the Severance Benefits; and (ii) any federal, state, and
local income tax and Excise Tax on the Gross-Up Payment provided for by this ss.
8.1, shall be equal to the Severance Benefits. Such payment shall be made by the
Bank to the Executive as soon as practicable following the effective date of
termination, but in no event beyond thirty (30) days from such date.
8.2 Tax Computation:
For purposes of determining whether any of the Severance Benefits will be
subject to the Excise Tax and the amounts of such Excise Tax:
(a) Any other payments or benefits received or to be received by the
Executive in connection with a change in control of the Bank or the
Executive's termination of employment (whether pursuant to the terms
of this Plan or any other plan, arrangement, or agreement with the
Bank, or with any individual, entity, or group of individuals or
entities (individually and collectively referred to in this ss. 8.2
as "Persons") whose actions result in a change in control of the
Bank or any Person affiliated with the Bank or such Persons) shall
be treated as "parachute payments" within the meaning of ss.
280G(b)(2) of the Code, and all "excess parachute payments" within
the meaning of ss. 280G(b)(1) of the Code shall be treated as
subject to the Excise Tax, unless in the opinion of tax counsel
selected by the Bank's independent auditors and acceptable to the
Executive, such other payments or benefits (in whole or in part) do
not constitute parachute payments, or unless such excess parachute
payments (in whole or in part) represent reasonable compensation for
services actually rendered within the meaning of ss. 280G(b)(4) of
the Code in excess of the base amount within the meaning of ss.
280G(b)(3) of the Code, or are otherwise not subject to the excise
tax;
(b) The amount of the Severance Benefits which shall be treated as
subject to the Excise Tax shall be equal to the lesser of (i) the
total amount of the Severance Benefits; or (ii) the amount of excess
parachute payments within the meaning of ss. 280(G)(b)(1) of the
Code (after applying clause (a) above). For purposes of this
paragraph, the one percent (1%) of sale price of the Bank as
described in ss. 4.4 shall not be included as Severance Benefits to
the Executive in order to calculate the excise tax or the maximum
amount of excess parachute payments within the meaning of ss.
280G(b)(1) of the Code; and
Page 17 of 22
(c) The value of any noncash benefits or any deferred payment or benefit
shall be determined by the Bank's independent auditors in accordance
with the principles of ss. 280G(d)(3) and (4) of the Code. The base
amount shall be determined by the Bank's independent auditors in
accordance with the principles of ss. 280G(d)(3) of the Code.
For purposes of determining the amount of the Gross-Up Payment the
Executive shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation in the calendar year in which the Gross-Up
Payment is to be made, and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's residence on the
effective date of employment net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.
8.3 Subsequent Recalculation
In the event the computation of the Bank under ss. 8.1 herein, is adjusted
by the Internal Revenue Service which adjustment becomes binding on the Service,
the Bank, and the Executive, so that the Executive did not receive the greatest
net benefit, the Bank shall reimburse the Executive for the full amount
necessary to make the Executive whole, plus a market rate of interest, as
determined by the Board of Directors.
Article 9. Non-Competition.
9.1 Prohibition on Competition:
Without the prior written consent of the Bank, during the term of this
Agreement, and for twelve (12) months following the expiration of this
Agreement, the Executive shall not, as an employee or an officer, engage
directly or indirectly in any business or enterprise which is "in competition"
with the Bank or its successors or assigns. For purposes of this Agreement, a
business or enterprise will be deemed to be "in competition" if it is a banking
institution, the headquarters of which are within fifteen (15) miles from the
Bank's current location on the Effective Date of this Agreement, in Calhoun,
Georgia.
The Executive further agrees that within this same twelve (12) month time
period, he will keep any and all bank business, trade secrets, and other
proprietary information in strict confidence; he will not solicit business from
the existing customers of the Bank; and he will not solicit or induce any person
employed by the Bank to leave such employment.
However, the Executive shall be allowed to purchase and hold for
investment the
Page 18 of 22
shares of any corporation whose shares are regularly traded on a national
securities exchange or in the over-the-counter market. Additionally, the
Executive shall be allowed to maintain any holdings which the Executive may have
as of the Effective Date of this Agreement.
Any prohibition on competition by the Executive shall not apply in the
event that the Executive's employment has been terminated without Cause as
provided in ss. 6.4 or for Good Reason as provided in ss. 6.6.
9.2 Specific Performance:
The parties recognize that the Bank will have no adequate remedy at law
for breach by the Executive of the requirements of this Article 9 and, in the
event of such breach, the Bank and the Executive hereby agree that, in addition
to the right to seek monetary damages, the Bank will be entitled to a decree of
specific performance, mandamus, or other appropriate remedy to enforce
performance of such requirements.
Article 10. Indemnification.
The Bank hereby covenants and agrees to indemnify and hold harmless the
Executive in every manner associated with costs resulting from legal fees and
expenses which may be incurred in defense of his executive authority position
with the bank, including any claim, dispute, or litigation by the former
employer of the Executive based on his employment with the Bank.
Article 11. Assignment.
11.1 Assignment by Bank:
This Agreement may and shall be assigned or transferred to, and shall be
binding upon and shall inure to the benefit of, any successor or assignor of the
Bank, and any such successor or assignor shall be deemed substituted for all
purposes of the "Bank" under the terms of this Agreement. As used in this
Agreement, the term "successor" or "assignor" shall mean any person, firm,
corporation, or business entity which at any time, whether by merger, purchase,
or otherwise, acquires all or substantially all of the assets or the business of
the Bank. Notwithstanding such assignment, the Bank shall remain, with such
successor, jointly and severally liable for all its obligations hereunder.
Failure of the Bank to obtain the agreement of any successor or assignor
to be bound by the terms of this Agreement prior to the effectiveness of any
such succession or
Page 19 of 22
assignment shall be a breach of this Agreement, and shall immediately entitle
the Executive to compensation from the Bank in the same amount and on the same
terms as the Executive would be entitled in the event of an termination of
employment, as provided in ss. 6.4 herein.
Except as herein provided, this Agreement may not otherwise be assigned by
the Bank.
11.2 Assignment by Executive:
The services to be provided by the Executive to the Bank hereunder are
personal to the Executive, and the Executive's duties may not be assigned by the
Executive; provided, however that this Agreement shall inure to the benefit of
and be enforceable by the Executive's personal or legal representatives,
executors, and administrators, successors, heirs, distributees, devisees, and
legatees. If the Executive dies while any amounts payable to the Executive
hereunder remain outstanding, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee, or other designee or, in the absence of such
designee, to the Executive's estate.
Article 12. Dispute Resolution and Notice.
12.1 Dispute Resolution:
The Executive shall have the right and option to elect to have any good
faith dispute or controversy arising under or in connection with this Agreement
settled by litigation or by arbitration.
If arbitration is selected, such proceeding shall be conducted before a
panel of three (3) arbitrators from the American Arbitration Association (AAA),
sitting in a location selected by the Executive within fifty (50) miles from the
location of Executive's principal place of employment, in accordance with the
rules of the American Arbitration Association then in effect. Judgment may be
entered on the award of the arbitrators in any court having competent
jurisdiction.
All expenses of such litigation or arbitration, including the reasonable
fees and expenses of the legal representative for the Executive, and necessary
costs and disbursements incurred as a result of such dispute or legal
proceeding, and any prejudgment interest, shall be born by the Bank.
Page 20 of 22
12.2 Notice:
Any notices, requests, demands, or other communications provided for by
this Agreement shall be sufficient if in writing and if sent by registered or
certified mail to the Executive at the last address Executive has filed in
writing with the Bank or, in the case of the Bank, to an executive officer of
the Bank, at the Bank's principal offices.
Article 13. Miscellaneous.
13.1 Entire Agreement:
This Agreement supersedes any prior agreements or understandings, oral or
written, between the parties hereto, or between the Executive and the Bank, with
respect to the subject matter hereof, and constitutes the entire agreement of
the parties with respect thereto.
13.2 Modification:
This Agreement shall not be varied, altered, modified, canceled, changed,
or in any way amended except by mutual agreement of the parties in a written
instrument executed by the parties hereto or their legal representatives.
13.3 Severability:
In the event that any provision of this Agreement shall be determined to
be unenforceable for any reason, the remaining provisions of this Agreement
shall be unaffected thereby and shall remain in full force and effect.
13.4 Counterparts:
This Agreement may be executed in one (1) or more counterparts, each of
which shall be deemed to be an original, but all of which together will
constitute one and the same Agreement.
13.5 Tax Withholding:
The Bank may withhold from any benefits payable under this Agreement all
federal, state, city, or other taxes as may be required pursuant to any law or
governmental regulation or ruling.
Page 21 of 22
13.6 Beneficiaries:
The Executive may designate one or more persons or entities as the primary
and/or contingent beneficiaries of any amounts to be received under this
Agreement. Such designation must be in the form of a signed writing acceptable
to the Board or the Board's designee. The Executive may make or change such
designation at any time.
Article 14. Governing Law.
To the extent not preempted by federal law, the provisions of this
Agreement shall be construed and enforced in accordance with the laws of the
State of Georgia.
IN WITNESS WHEREOF, the Executive has executed, and the Bank (pursuant to
a Resolution adopted at a duly constituted meeting of the Bank's Board of
Directors) has executed this Agreement in duplicate, as of the 22 day of
September, 1999.
NORTH GEORGIA NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
XXXXXX X. XXXXXXXX
Chairman of the Board of Directors
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------
XXXXXX X. XXXXX, XX.
Director
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
XXXX XXXXXXXX
Director
Attest: /s/ Xxxx X. Xxxx
--------------------------
Secretary of North Georgia
National Bank
EXECUTIVE
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
XXXXX X. XXXXX
Page 22 of 22
