EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “Agreement”)
is made as of the 5th day of
February, 2007 by and among United Community Bank (the “Bank”),
a state bank organized under the laws of the State of Georgia; United Community
Banks, Inc., a bank holding company incorporated under the laws of the State of
Georgia (the “Company”)
(collectively, the Bank and the Company are referred to hereinafter as the
“Employer”),
and Xxxxx X. Xxxxx, a resident of the State of Georgia (the “Executive”).
RECITALS:
The
Executive is currently employed as Chief Executive Officer of First Bank of the
South, a state bank organized under the laws of the State of Georgia (“FBS”)
and the Chief Executive Officer and President of Gwinnett Commercial Group, Inc.
a bank holding company incorporated under the laws of the State of Georgia
(“GCG”)
pursuant to the terms of that certain Amended and Restated Employment Agreement,
dated May 1, 2006, (the “GCG
Employment Agreement”).
GCG and the Company have entered into that certain Agreement and Plan of
Reorganization (the “Acquisition
Agreement”), pursuant to which the Company has agreed to acquire GCG and
FBS by the merger of GCG with and into the Company and the merger of FBS with
and into the Bank.
Executive possesses significant knowledge and information with respect to the
business of FBS and GCG, which knowledge and information will be increased,
developed and enhanced through his continued employment by the
Employer.
The parties hereto desire to enter into an agreement for the Employer’s
employment of Executive on the terms and conditions contained
herein.
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 their variant forms
shall have the meanings set forth below:
1.1
“Affiliate”
shall mean any business entity which controls the Company, is controlled by or
is under common control with the Company.
1.2
“Agreement”
shall mean this Agreement and any exhibits incorporated herein together with any
amendments hereto made in the manner described in this
Agreement.
1.3
“Area”
shall mean the geographic area within a twenty (20) mile radius of the Bank’s
primary location at 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxxx, Xxxxxxx 00000. 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 Employer, which is the business of
accepting deposits and making loans.
1.5
“Cause”
shall mean:
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1.5.1 With
respect to termination by the Employer:
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(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 the Employer. Such notice shall: (i) specifically identify
the duties that the Board of Directors of either the Company or the Bank
believes the Executive has failed to perform; and (ii) state the facts
upon which such Board of Directors made such
determination;
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(b) Conduct
by the Executive that amounts to fraud, dishonesty or willful misconduct
in the performance of his duties and responsibilities
hereunder;
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(c) Conviction
of the Executive during the Term of this Agreement of any felony or a
crime involving breach of trust or moral turpitude;
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(d) Conduct
by the Executive that amounts to gross and willful insubordination or
gross negligence in the performance of his duties and responsibilities
hereunder; or
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(e) Conduct
by the Executive that results in a formal action instituted by written
order of any regulatory agency with authority or jurisdiction over the
Employer to remove the Executive from his position as an officer or
executive of the Employer.
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1.5.2 With
respect to termination by the Executive:
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(a) A
material diminution in the powers, responsibilities or duties of the
Executive hereunder; provided, however, that the Executive’s continued
employment for thirty (30) days following any act or failure to act
constituting Cause under this subsection without delivery of written
notice shall constitute consent to, and a waiver of the Executive’s rights
under this subsection with respect to such act or failure to
act;
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(b) A
material breach of the terms of this Agreement by the Employer, which
remains uncured after the expiration of thirty (30) days following the
delivery of written notice of such diminution or breach to the Employer by
the Executive; or
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(c) A requirement by the Employer that
the Executive’s services be rendered primarily at a location more than
twenty (20) miles from the primary business location maintained by the
Employer as of the Effective Date.
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1.6
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“Change
of Control”
means any one of the following events:
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(a) other than through a merger,
share exchange, combination or consolidation, which shall be an event
subject to (c) below, the acquisition by any person or persons acting in
concert of the then outstanding voting securities of either the Bank or
the Company, if, after the transaction, the acquiring person (or persons)
owns, controls or holds with power to vote twenty-five percent (25%) or
more of any class of voting securities of either the Bank or the Company,
as the case may be; provided, however, that the current and future
holdings of any person who is a shareholder of the Company or the Bank as
of the Effective Date shall be disregarded in determining whether the
twenty-five percent (25%) threshold has been attained;
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(b)
within any twelve-month period (beginning on or after the Effective Date)
the persons who were directors of either the Bank or the Company
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 beginning of such twelve-month period 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 (2/3) 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 relating to the
election of directors shall be deemed to be an Incumbent
Director;
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(c)
a reorganization, merger, share exchange, combination, or consolidation,
with respect to which persons who were the stockholders of the Bank or the
Company, as the case may be, immediately prior to such reorganization,
merger, share exchange combination, 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,
combined or consolidated company’s then outstanding voting securities;
or
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(d)
the sale, transfer or assignment of all or substantially all of the
assets of the Company and its subsidiaries to any third
party.
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| 1.7 “Code” shall mean the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder. | ||
| 1.8 “Competing Business” shall mean any FDIC-insured bank or Affiliate thereof engaged in the Business of the Employer. | ||
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1.9 “Confidential
Information”
means data and information relating to the Business of the Employer (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.
1.10 “Disability”
shall mean the inability of the Executive to perform each of his material duties
under this Agreement for the duration of the then applicable elimination period
under the Employer’s long-term disability policy then in effect as certified by
a physician chosen by the Employer and reasonably acceptable to the
Executive.
1.11 “Effective
Date”
shall mean the Closing Date (as defined in the Acquisition
Agreement).
1.12 “Employer
Information”
means Confidential Information and Trade Secrets.
1.13 “Initial
Term”
shall mean that period of time commencing on the Effective Date and running
until the earlier of (a) the close of business on the last business day
immediately preceding the third anniversary of the Effective Date or (b) any
earlier termination of employment of the Executive under this Agreement as
provided for in Section 3.
1.14 “Term”
shall mean the Initial Term and all subsequent renewal
periods.
1.15 “Trade
Secrets”
means Employer information including, but not limited to, technical or
nontechnical 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:
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(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
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(b)
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.
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2.
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Duties.
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2.1 Position.
As of the Effective Date, the Executive shall be employed as Chief Executive
Officer of the “Gwinnett Community Bank” of the Bank and, subject to the
direction of the Board of Directors of the Bank or the Company 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 or the Company in
connection with the conduct of its business.
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2.2 Full-Time
Status.
In addition to the duties and responsibilities specifically assigned to
the Executive pursuant to Section 2.1 hereof, the Executive
shall:
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(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;
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(b) diligently follow and implement
all reasonable and lawful management policies and decisions communicated
to him by the Board of Directors of either the Bank or the Company;
and
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(c) timely prepare and
forward to the Board of Directors of either the Bank or the Company all
reports and accountings as may be requested of the
Executive.
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2.3 Permitted
Activities.
The Executive shall not during the Term be engaged (whether or not during normal
business hours) in any other business or professional activity, whether or not
such activity is pursued for gain, profit or other pecuniary advantage; but this
shall not be construed as preventing the Executive:
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(a)
from investing his personal
assets in businesses which will not require any services on the part of
the Executive in their operation or affairs, in which his participation
is solely that of an investor and which are not Competing Businesses;
or
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(b) from purchasing
securities solely as a passive investor in any corporation, the securities
of which are regularly traded provided that such purchase shall not result
in his collectively
owning beneficially at any time five percent (5%) or more of the equity
securities of any Competing
Business.
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2.4 Effective
Date.
The Agreement shall be effective as of the Effective Date. The Employer
and Executive intend that, upon the Effective Date, the GCG Employment Agreement
shall be superseded and shall have no further force or effect. If the Closing
(as defined in the Acquisition Agreement) fails to occur, for any reason, this
Agreement shall be null and void.
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3.
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Term
and Termination.
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3.1
Term.
This Agreement shall remain in effect for the Term. Commencing with the first
day of the Initial Term, the Term shall renew each day such that the Term
remains a three-year term from day-to-day thereafter unless any party gives
written notice to the others of its or his intent that the automatic renewals
shall cease. In the event such notice of non-renewal is properly given, this
Agreement and the Term shall expire on the third anniversary of the thirtieth
day following the date such written notice is received. In the event such notice
of non-renewal is properly given, this Agreement shall terminate at the end of
the remaining Term then in effect and the Employer shall have no further
obligation to the Executive except for payment of amounts due and owing under
Section 4 as of the last day of the Term.
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3.2 Termination.
During the Term, the employment of the Executive under this Agreement may
be terminated only as follows:
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3.2.1
By the Employer:
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(a) For Cause, upon written notice to the
Executive pursuant to Section 1.5.1 hereof, in which event the Employer
shall have no further obligation to the Executive except for payment of
any amounts due and owing under Section 4 on the effective date of
termination;
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(b) Without Cause at any time, provided that
the Employer shall give the Executive thirty (30) days’ prior written
notice of its intent to terminate, in which event the Employer: (i) shall
be required to continue to meet its obligation to the Executive under
Section 4.1 for thirty-six (36) months following the effective date of
termination; and (ii) shall pay an amount equal to two (2) times the
average annual bonus paid to the Executive for the three most recently
fiscal years, including the fiscal year in which the Executive’s
employment is terminated if the bonus for that year has been paid, prior
to the Executive’s termination of employment, to be paid in equal monthly
installments over the thirty-six (36) month period in clause (i); provided
that, for purposes of this clause (ii), in determining the annual bonus
for any fiscal year during the averaging period, for any fiscal year
during the averaging period in which no annual bonus was payable, $0.00
shall be used in the averaging calculation for that fiscal year; and
provided further that if the Executive’s termination of employment occurs
before the annual bonus, if any, for the most recently completed fiscal
year is payable, then the averaging will be determined by reference to the
three most recently completed fiscal years before that fiscal year;
or
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(c) 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, in which event, the
Employer shall be required to continue to meet its obligation to the
Executive under Section 4.1 for three (3) months following the termination
or until the
Executive begins receiving payments under the Employer’s long-term
disability policy, whichever occurs first.
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3.2.2
By the Executive:
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(a) For Cause, upon written notice to the
Employer pursuant to Section 1.5.2 hereof in which event the Employer
shall be required to continue to meet its obligation to the Executive
under Section 4.1 for the lesser of: (i) thirty-six (36) months following
the effective date of termination; or (ii) the remaining
Term;
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(b) Without Cause, provided that the
Executive shall give the Employer thirty (30) days’ prior written notice
of his intent to terminate, in which event the Employer shall have no
further obligation to the Executive except for payment of any amounts due
and owing under Section 4 on the effective date of termination;
or
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(c)
Upon the Disability of Executive at any time, provided that the Executive
shall give the Employer thirty (30) days’ prior written notice of its
intent to terminate, in which event, the Employer shall be required to
continue to meet its obligation to the Executive under Section 4.1 for
three (3) months following the termination or until the Executive begins
receiving payments under the Employer’s long-term disability policy,
whichever occurs first.
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3.2.3
At any time upon mutual, written agreement of the parties, in which event
the Employer shall have no further obligation to the Executive except for
payment of any amounts due and owing under Section 4 on the effective date
of termination.
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3.2.4
Upon expiration of the Term as provided in Section 3.1, in which event the
Employer shall have no further obligation to the Executive except for
payment of any amounts due and owing under Section 4 on the last day of
the Term then in effect.
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3.2.5
Notwithstanding anything in this Agreement to the contrary, the Term shall
end automatically upon the Executive’s death, in which event the Employer
shall have no further obligation to the Executive’s estate except for
payment of any amounts due and owing under Section 4 on the effective date
of termination.
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3.3 Change
of Control.
If, within six (6) months following a Change of Control, either the Executive
terminates his employment with the Employer under this Agreement for any reason
or the Employer involuntarily terminates the Executive’s employment under this
Agreement other than for Cause, the Executive, or in the event of his subsequent
death, his designated beneficiaries, as identified to the Employer in writing in
a form substantially similar to Exhibit “A” attached hereto or, in the absence
of any such designation, his estate, as the case may be, shall receive, as
liquidated damages, in lieu of all other claims, an amount equal to (a) three
(3), multiplied by (b) the sum of: (i) his Base Salary then in effect; (ii) an
amount equal to the average of the annual bonuses paid to the Executive for the
three most recently completed fiscal years prior to termination of employment;
and (iii) his monthly automobile allowance referenced in Section 4.3, multiplied
by twelve (12).
For
purposes of the immediately preceding paragraph, in determining the annual bonus
component of the formula, for any fiscal year during the averaging period in
which no annual bonus was payable, $0.00 shall be used in the averaging
calculation for that fiscal year. In addition, if the Executive’s termination of
employment occurs before the annual bonus, if any, for the most recently
completed fiscal year is payable, then the averaging will be determined by
reference to the three most recently completed fiscal years before that fiscal
year.
The
amount payable pursuant to this Section 3.3 shall be paid in substantially equal
monthly installments over a twenty-four (24) month period commencing as of the
first day of the calendar month following the effective date of the termination
of employment.
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In
no event shall the payment(s) described in this Section 3.3 exceed the amount
permitted by Code Section 280G. Therefore, if the aggregate present value
(determined as of the date of the Change of Control in accordance with the
provisions of Code Section 280G) 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 the Company or in the
ownership of a substantial portion of the assets of the Bank or the Company (the
“Aggregate Severance”) would result in a “parachute payment,” as defined under
Code Section 280G, 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 Code 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.
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3.4
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Effect
of Termination.
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3.4.1
Upon termination of the Executive’s employment hereunder for any reason,
the Employer shall have no further obligation to the Executive or the
Executive’s estate with respect to this Agreement, except for the payment
of any amounts due and owing under Section 4 on the effective date of
termination and any payments set forth in Sections 3.2.1(b) or (c);
Section 3.2.2(a) or (c); Section 3.3; or Section 3.4.2 as
applicable.
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3.4.2
Upon termination of the Executive’s employment hereunder for any reason
(other than involuntarily by the Employer for Cause) and continuing until
the date the Executive is eligible for Medicare, the Employer shall
reimburse the Executive for the cost to the Executive of coverage for
himself and eligible dependents under any group retiree medical plan then
maintained by the Employer for which the Executive and his dependents are
eligible or, if no such coverage is then being maintained by the Employer,
for the cost to the Executive of coverage for himself and his eligible
dependents under an individual medical insurance policy purchased by the
Executive. In the latter instance, any such individual medical insurance
policy shall be selected and purchased by the Executive with the
Employer’s sole obligation being to provide for reimbursements of the
amounts incurred by the Executive for the cost of such coverage and the
Employer’s aggregate monthly obligation with respect to such
reimbursements shall not exceed one hundred and twenty percent (120%) of
the monthly cost of health care continuation coverage then being charged
by the Employer to former employees for family coverage under its primary
medical care plan for the “determination period’ (as defined in Code
Section 4980B(f)(4)(C)) that is then in effect.
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3.4.3
If the Executive’s employment is involuntarily terminated by the Employer
without Cause, whether before or after any Change of Control, or upon the
Executive’s death or Disability, then immediately prior to the effective
date of such termination, subject to the limitations contained in Section
3.3, all option awards for the purchase of Company common stock then
issued and outstanding in favor of the Executive shall become fully vested
and exercisable to the extent not otherwise vested and exercisable as of
such date.
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3.4.4
As a condition to the Employer’s payment of any amount in connection with
a termination of the Executive’s employment, the Executive agrees to
execute a release in such form as is acceptable to the Employer. The
Employer reserves the right to withhold payment of any amounts payable
upon termination until the revocation period associated with such release
expires (generally, seven (7) days from the date the release is
executed).
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4. Compensation.
The Executive shall receive the following salary and benefits during the Term,
except as otherwise provided below:
4.1
Base
Salary.
The Executive shall be compensated at a base rate of $300,000 per year (the
“Base Salary”). The obligation for payment of Base Salary shall be apportioned
between the Company and the Bank as they may agree from time to time in their
sole discretion. The Executive’s Base Salary shall be reviewed by the Board of
Directors of the Bank and the Company 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 Board of Directors of the Bank or the Company based on its
evaluation of the 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 annual bonus compensation, if any, as
determined by the Board of Directors of the Company or the Bank pursuant to any
incentive compensation program as may be adopted from time to time by the
Company or the Bank. Any such program shall be based upon the performance of the
Employer for its fiscal year and any such program shall provide that any annual
bonus otherwise earned shall be paid immediately following the last day of that
fiscal year.
4.3
Automobile.
The Executive shall receive an automobile allowance equal to $500 per
month.
4.4 Business
Expenses; Memberships.
The Employer specifically agrees to reimburse the Executive
for:
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(a) reasonable and
necessary business (including travel) expenses incurred by him in the
performance of his duties hereunder, as approved by the Board of Directors
of either the Bank or the Company; and
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(b) the reasonable dues and
business related expenditures, exclusive of any initiation fees,
associated with membership in a single country club and a single civic
association, both 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.
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4.5
Vacation.
The Executive shall be entitled to paid time off in accordance with the terms of
the Employer’s policy as in effect from time to time.
4.6
Life
Insurance.
The Employer will provide the Executive with term life insurance coverage
providing a death benefit of not less than three (3) times the Executive’s Base
Salary then in effect not to exceed $310,000. Any life insurance benefits
provided for under this Section 4.6 shall payable to such beneficiary or
beneficiaries as the Executive may designate. If the term life insurance
provided for under this Section cannot be obtained with a standard or better
risk classification with respect to the Executive, the Employer shall not be
obligated to provide such insurance coverage.
4.7
Benefits.
In addition to the benefits specifically described in this Agreement, the
Executive shall be entitled to such benefits as may be available from time to
time to executives of the Employer similarly situated to the Executive. All such
benefits shall be awarded and administered in accordance with the Employer’s
standard policies and practices. Such benefits may include, by way of example
only, retirement plans, dental, health, life and disability insurance benefits,
and such other benefits as the Employer deems
appropriate.
4.8
Withholding.
The Employer may deduct from each payment of compensation hereunder all amounts
required to be deducted and withheld in accordance with applicable federal and
state income tax, FICA and other withholding
requirements.
5.
Employer
Information.
5.1
Ownership
of Employer Information.
All Employer Information 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;
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(b) not
to use, duplicate, reproduce, distribute, disclose or otherwise
disseminate Employer Information or any physical embodiments of Employer
Information; and
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(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.
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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 the Executive
provides, given the circumstances, timely prior written notice to the Employer
when the Executive becomes aware that such disclosure has been requested and is
required by law. With respect to Confidential Information, this Section 5 shall
survive for a period of thirty-six (36) months following termination of this
Agreement for any reason, 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 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 Employer hereunder and,
in the event of his termination:
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by
the Employer without Cause pursuant to Section
3.2.1(b);
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by
the Executive for Cause pursuant to Section 3.2.2(a);
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by
the Executive without Cause pursuant to Section 3.2.2(b);
or
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by
the Employer or the Executive in connection with a Change of Control
pursuant to Section 3.3,
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for a
period of thirty-six (36) 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 of or on behalf of
others, as an executive officer or proposed executive officer of a new financial
institution, undertake for any Competing Business duties and responsibilities
similar to those undertaken by the Executive for the Employer.
7.
Non-Solicitation
of Customers.
The Executive agrees that during his employment by the Employer hereunder and,
in the event of his termination:
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by
the Employer without Cause pursuant to Section
3.2.1(b);
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by
the Executive for Cause pursuant to Section 3.2.2(a);
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by
the Executive without Cause pursuant to Section 3.2.2(b);
or
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by
the Employer or the Executive in connection with a Change of Control
pursuant to Section 3.3,
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for a
period of thirty-six (36) months thereafter, he will not (except on behalf of or
with the prior written consent of the Employer) on his own behalf or in the
service of or on behalf of others, solicit, divert or appropriate or attempt to
solicit, divert or appropriate, for any Competing Business any of the Employer’s
customers, including prospective customers actively sought by the Employer, with
whom the Executive has or had material contact during the two (2) year period
preceding his termination of employment for the purpose of providing products or
services that are competitive with those provided by the
Employer.
- 11
-
8.
Non-Solicitation
of Employees.
The Executive agrees that during his employment by the Employer hereunder and,
in the event of his termination:
|
•
|
by
the Employer without Cause pursuant to Section
3.2.1(b);
|
|
•
|
by
the Executive for Cause pursuant to Section 3.2.2(a);
|
|
•
|
by
the Executive without Cause pursuant to Section 3.2.2(b);
or
|
|
•
|
by
the Employer or the Executive in connection with a Change of Control
pursuant to Section 3.3,
|
for a
period of thirty-six (36) months thereafter, he will not, on his own behalf or
in the service of 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 a Competing Business, 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 5 through 8 of
this Agreement are the of 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 and shall be relieved of its obligation to make any and all
payments to the Executive that otherwise are or may become due and payable to
the Executive pursuant to Section 3. 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 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 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
-
12. Notice.
All notices, requests, waivers and other communications required or permitted
hereunder shall be in writing (including telecopy or similar writing), addressed
as follows:
|
(i)
|
If
to the Employer, to it at:
|
||
|
United
Community Bank
|
|||
|
X.X.
Xxx 000
|
|||
|
Xxxxxxxxxxx,
Xxxxxxx 00000
|
|||
|
Attn:
Xxxxx X. Xxxxxxx
|
|||
|
Telephone:
(000) 000-0000
|
|||
|
Facsimile:
(000) 000-0000
|
|||
|
(ii)
|
If
to the Executive, to him at:
|
||
|
Telephone:
(__) ___ - _____________
|
|||
|
Facsimile:
(___)___ - ______________
|
|||
All such
notices, requests, waivers and other communications shall be deemed to have been
effectively given (a) when personally delivered to the party to be notified; (b)
when sent by confirmed facsimile to the party to be notified at the number set
forth above; (c) three (3) business days after deposit in the United States Mail
postage prepaid by certified or registered mail with return receipt requested
and addressed to the party to be notified as set forth above; or (d) one (1)
business day after deposit with a national overnight delivery service, postage
prepaid, addressed to the party to be notified as set forth above with
next-business-day delivery guaranteed. A party may change its or his notice
address given above by giving the other party ten (10) days’ written notice of
the new address in the manner set forth above. Any party hereto may change his
or its address by advising the other, in writing, of such change of
address.
13. Assignment.
This Agreement is generally not assignable by the Employer except that the
rights and obligations of the Employer under this Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of the Employer.
The Agreement is a personal contract and the rights, interests and obligations
of the Executive may not be assigned by him. This Agreement shall inure to the
benefit of and be enforceable by the Executive and his personal or legal
representatives, executors, administrators, successors, heirs, distributes,
devisees and legatees.
14. Waiver.
A waiver by one party to this Agreement of any breach of this Agreement by
another 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.
Except for matters contemplated by Section 17 below, any controversy or claim
arising out of or relating to 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 a state court of Gwinnett 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: _____
- 13
-
16. Attorneys’
Fees.
In the event that the parties have complied with this 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 and Choice of Forum.
This Agreement shall be construed and enforced under and in accordance with the
laws of the State of Georgia. The parties agree that any appropriate state court
in Gwinnett County, Georgia, or federal court located in or embracing Gwinnett
County, Georgia, shall have exclusive jurisdiction of any case or controversy
arising under or in connection with Sections 5 through 9 of this Agreement shall
be a proper forum in which to adjudicate such case or controversy. The parties
consent and waive any objection to the jurisdiction or venue of such
courts.
18. Interpretation.
Words importing any gender include all genders. Words 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 agreement of the parties on the
subject matter stated in this Agreement and supersedes, in its entirety, the GCG
Employment Agreement which shall have no further force or effect. 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 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, 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.
- 14
-
22. Joint
and Several.
The obligations of the Bank and the Company to Executive hereunder shall be
joint and several.
23. Representation
Regarding Restrictive Covenants. The Executive represents that he is not
and will not become a party to any noncompetition or nonsolicitation agreement
or any other agreement which would prohibit him from entering into this
Agreement or providing the services for the Employer contemplated by this
Agreement on or after the Effective Date. In the event the Executive is subject
to any such agreement, this Agreement shall be rendered null and void and the
Employer shall have no obligations to the Executive under this
Agreement.
[Remainder
of Page Intentionally Left Blank]
- 15
-
IN
WITNESS WHEREOF, the Employer and the Executive have executed and
delivered this Agreement as of the date first shown
above.
|
THE
BANK:
|
|
|
UNITED
COMMUNITY BANK
|
|
|
By:
|
|||
|
Print
Name:
|
|||
|
Title:
|
|||
|
THE
COMPANY:
|
|||
|
UNITED
COMMUNITY BANKS, INC.
|
|||
|
By
|
|||
|
Print
Name:
|
|||
|
Title:
|
|||
|
THE
EXECUTIVE:
|
||
|
XXXXX
X. XXXXX
|
- 16
-
EXHIBIT
A
DESIGNATION
OF BENEFICIARY FORM
Pursuant
to Section 3.3 of that certain employment agreement by and among United
Community Banks, Inc., United Community Bank, and Xxxxx X. Xxxxx dated [•],
2007 (the “Agreement”), I, ____________________, hereby designate the
beneficiary(ies) listed below to receive any benefits under the Agreement that
may be due following my death. This designation shall replace and revoke any
prior designation of beneficiary(ies) made by me under the
Agreement.
Full
Name(s), Address(es) and Social Security Number(s) of Primary
Beneficiary(ies)*:
*If more
than one beneficiary is named above, the beneficiaries will share equally in any
benefits, unless you have otherwise provided above. Further, if you have named
more than one beneficiary and one or more of the beneficiaries is deceased at
the time of your death, any remaining beneficiary(ies) will share equally,
unless you have provided otherwise above. If no primary beneficiary survives
you, then the contingent beneficiary designated below will receive any benefits
due upon your death. In the event you have no designated beneficiary upon your
death, any benefits due will be paid to your estate. In the event that you are
naming a beneficiary that is not a person, please provide pertinent information
regarding the designation.
Full
Name, Address and Social Security Number of Contingent Beneficiary:
|
Date
|
|||
|
Xxxxx
X.
Xxxxx
|
A-1
AMENDMENT
TO
THIS
AMENDMENT made and entered into as of this 31st day of December 2008, by
and between UNITED
COMMUNITY BANK and UNITED
COMMUNITY BANKS, INC. (together, the “Employer”) and XXXXX
X. XXXXX (“Executive”).
WHEREAS,
the Employer and Executive entered into an Employment Agreement, dated as of
February 5, 2007 (“Employment Agreement”), providing for the terms and
conditions of Executive’s employment by the Employer;
and
WHEREAS,
the parties now desire to amend the Employment Agreement in the manner
hereinafter provided to comply with the requirements of Section 409A of the
Internal Revenue Code of 1986, as amended, and for certain other
purposes;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein and in the Employment Agreement, the parties hereby
agree as follows:
1.
Section
3 is hereby amended by adding a new Section 3.5 reading as follows:
|
“3.5
Section
409A Compliance. This Agreement is intended to satisfy the
requirements of Code Section 409A, including any transition relief
available under applicable guidance related to Code Section 409A. The
Agreement may be amended or interpreted by the Employer as it determines
necessary or appropriate in accordance with Code Section 409A and to avoid
a failure under Code Section 409A(1). The Employer shall have the
authority to delay the commencement of all or a part of the payments to
Executive under Section 4 if Executive is a “key employee” of the Employer
(as determined by the Employer in accordance with procedures established
by the Employer that are consistent with Section 409A) to a date which is
six months and one day after the date of Executive’s termination of
employment (and on such date the payments that would otherwise have been
made during such six-month period shall be made) to the extent (but only
to the extent) such delay is required under the provisions of Section 409A
to avoid imposition of additional income and other taxes, provided that
the Employer and Executive agree to take into account any transitional
rules and exemption rules available under Section 409A.
|
|
|
Notwithstanding
any other provision of the applicable plans and programs, all
reimbursements and in-kind benefits provided under this Agreement shall be
made or provided in accordance with the requirements of Section 409A,
including, where applicable, the requirement that (i) the amount of
expenses eligible for reimbursement and the provision of benefits in kind
during a calendar year shall not affect the expenses eligible for
reimbursement or the provision of in-kind benefits in any other calendar
year; (ii) the reimbursement for an eligible expense will be made on or
before the last day of the calendar year following the calendar year in
which the expense is incurred; (iii) the right to reimbursement or right
to in-kind benefit is not subject to liquidation or exchange for any other
benefit; and (iv) each reimbursement payment or provision of in-kind
benefit shall be one of a series of separate payments (and each shall be
construed as a separate identified payment) for purposes of Section
409A.”
|
1
2.
Section
16 is hereby amended by adding the following sentence to the end of the present
section:
|
“Notwithstanding
the other provisions of this Section 16, any legal fees and expenses
payable to Executive pursuant to this Section 16 shall be paid no later
than the end of the calendar year following the calendar year in which the
fees and expenses are incurred.”
|
|
|
3.
|
|
This
Amendment shall be effective as of the date hereof. Except as hereby amended,
the Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the day and year first written above.
| UNITED COMMUNITY BANK |
|
||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
| UNITED COMMUNITY BANKS, INC. | |||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
|
|||
|
Xxxxx
X. Xxxxx
|
|||
2
