EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into on April 20,
2004, by and between the Board of Directors of FNBG Bancshares, Inc., a Georgia
corporation (the "Company"), the Board of Directors of First National Bank of
Gwinnett, a national bank (the "Bank"), and Xxxxx X. Xxxxx, an individual
resident of Georgia (the "Executive"), collectively the "Parties."
WHEREAS, the Bank and the Executive previously entered into an Employment
Agreement, dated August 11, 1999 ("Prior Agreement"); and
WHEREAS, by virtue of the reorganization of the Bank effective as of
January 1, 2004, the Company has been established and is now a holding company
of all stock of the Bank (the "Reorganization"); and
WHEREAS, this Agreement is intended to replace the Prior Agreement to
reflect the Reorganization and to add the Company as a party to the Employment
Agreement; and
WHEREAS, the Company and the Bank (collectively, the "Employer") recognize
the Executive's contribution to the growth and success of the Bank during its
initial years of operation and acknowledge that the contribution has been and
will continue to be a significant factor to the success of the Bank. The
Employer desires to provide for the continued employment of the Executive in a
manner that will reinforce and encourage the dedication of the Executive to the
Employer and promote the best interests of the Employer and its shareholders;
And
WHEREAS, the Employer and the Executive hereby agree that the establishment
of the Company and the Reorganization that led to its creation do not constitute
a Change in Control under this Agreement or the Prior Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants of
the Parties contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending
to be legally bound, hereby agree as follows:
1. EMPLOYMENT. The Company and the Bank shall employ the Executive and
the Executive shall serve the Company and the Bank as President and Chief
Executive Officer of both upon the terms and conditions set forth herein. The
Executive shall have such authority and responsibilities consistent with his
position as are set forth in the Company's and the Bank's Bylaws or assigned by
the Executive Committee from time to time. The Executive shall devote his full
business time, attention, skills, and efforts to the performance of his duties
hereunder, except during periods of illness or periods of vacation and leaves of
absence consistent with Company and Bank policies. The Executive may devote
reasonable periods to service as a director or advisor to other organizations
and to charitable and community activities, provided that such activities do not
materially interfere with the performance of his duties hereunder and are not in
conflict or competitive with, or adverse to, the interests of the Company and
the Bank.
2. TERM. Unless earlier terminated as provided herein, the Executive's
employment under this Agreement shall commence on the date first written above,
and be for a term ending August 19, 2004 (the "Term").
3. COMPENSATION AND BENEFITS.
(a) Base Salary. The Employer shall pay the Executive a Base Salary
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at a rate of not less than One Hundred Twenty-Five Thousand Dollars
($125,000.00) per annum in accordance with the salary payment practices of the
Employer. The Executive Committee shall review the Executive's Base Salary at
least annually and may increase the Executive's Base
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Salary if it determines in its sole discretion that an increase is appropriate.
The obligation for payment of the Base Salary shall be apportioned between the
Company and the Bank as they may agree from time to time in their sole
discretion.
(b) Employee Benefits. The Executive shall participate in any
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retirement, welfare, deferred compensation, life and health insurance, and other
benefit plans or programs of the Employer now or hereafter applicable to the
Executive or applicable generally to employees of the Employer and as
established by Board action.
(c) Long-Term Equity Compensation. The Executive shall participate
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in the Employer's long-term equity incentive program and be eligible for the
grant of stock options, restricted stock, and other awards thereunder or under
any similar plan adopted by the Bank or the Company. Prior to the
Reorganization and the execution of this Agreement, the Bank had granted to the
Executive an option (the "Performance Option") to purchase a number of shares of
Common Stock of the Bank equal to five percent (5.0%) of the number of shares
sold in its initial offering. As a result of the Reorganization, the Employer
shall substitute this award of Performance Option to purchase Bank Common Stock
for a comparable award of Performance Option to purchase Common Stock of the
Company.
(i) The award agreement for the Performance Option, as amended,
shall provide that three-fifths (3/5ths) of the shares subject to the
Performance Option are vested as of the effective date of this Agreement,
and that an additional one-fifth (1/5th) of the shares subject to the
Performance Option shall vest on the last day of each of the successive two
(2) fiscal years of the Bank's operation.
(ii) For each fiscal year of the Bank ending after the date of
this Agreement, and as a condition to the vesting of the shares subject to
the
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Performance Option in such year (except in the event of a Change in
Control), the Bank must meet the following performance criteria:
(A) the Bank shall meet or exceed ninety percent (90%) of
the budgeted net income after tax and the budgeted deposit growth for
each of the initial five (5) fiscal years of the Bank based on the
annual budgets approved by the Board of the Bank for each such fiscal
year;
(B) the Bank shall maintain a regulatory examination rating
of Camel 1 or 2; provided, however, that if the Bank does not meet the
performance criteria for any year, the shares subject to the
Performance Option for such year may vest on any following fiscal year
end if, in the sole discretion of the Executive Committee, the Bank
exceeds the performance criteria for such following year. The
Executive Committee shall notify the Executive of any shares subject
to the Performance Option vested hereunder within a reasonable time
after the fiscal year end to which such options pertain. The good
faith determination of the Executive Committee regarding whether the
Bank met its yearly performance levels shall be conclusive.
(iii) In addition, the award agreement for the Performance Option
will provide that:
(A) the Executive's option shall be qualified as an
incentive stock option under the Code;
(B) all options shall be exercisable at any time during the
ten years following the date of the Performance Option at a price per
share equal to the public offering price in the offering (subject to
standard antidilution
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adjustments in the event of stock splits, dividends, or combinations),
which the parties agree is the fair market value of the Common Stock
of the Company as of the date of Grant; and
(C) all options shall be nontransferable and nonassignable
by the Executive or by any other person entitled hereunder to exercise
any such rights; provided, however, that upon the death of the
Executive any rights granted hereunder shall be transferable by the
Executive's will or by the applicable laws of descent and
distribution.
(iv) Nothing herein shall be deemed to preclude the granting to
the Executive of warrants or options under a director option plan in
addition to the options granted hereunder.
(v) Notwithstanding anything to the contrary contained in this
Section 3(c), the Performance Option shall become fully vested on the last
day of the fifth fiscal year of the Bank after its opening, regardless of
whether the performance criteria set forth in Subparagraph (ii) above have
been met.
(vi) The Performance Option shall become immediately exercisable
and one hundred percent (100%) vested upon a Change in Control.
(d) Bonus Plan. The Executive shall be eligible to receive a cash
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bonus as set by the Executive Committee. The Bonus will be based upon certain
performance levels or criteria as set by the Executive Committee and
communicated to the Executive each year.
(e) Automobile. The Bank or the Company shall continue to provide
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the Executive with an automobile owned or leased by the Bank or the Company of a
make and model appropriate to the Executive's status. The automobile will be
used primarily for business
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purposes and the Bank or the Company will pay operating, maintenance, and
related expenses for the automobile.
(f) Expense Reimbursement. The Bank or the Company shall reimburse
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the Executive for reasonable travel and other expenses related to the
Executive's duties which are incurred and accounted for in accordance with the
normal practices of the Company and the Bank.
4. TERMINATION.
(a) The Executive's employment under this Agreement may be terminated
prior to the end of the Term only as follows:
(i) upon the death of the Executive;
(ii) upon the disability of the Executive for a period of ninety
(90) days in any consecutive one hundred twenty (120) day period which, in
the opinion of the Executive Committee, renders him unable to perform the
essential functions of his job and for which reasonable accommodation is
unavailable. For purposes of this Agreement, a "disability" is defined as a
physical or mental impairment that substantially limits one or more major
life activities, and a "reasonable accommodation" is one that does not
impose an undue hardship on the Employer;
(iii) by the Employer for Cause upon delivery of a Notice of
Termination to the Executive;
(iv) by the Executive for Good Reason upon delivery of a Notice
of Termination to the Executive Committee within a ninety (90) day period
beginning on the thirtieth (30th) day after the occurrence of a Change in
Control or within a ninety
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(90) day period beginning on the one-year anniversary of the occurrence of
a Change in Control;
(v) by the Executive for other than Good Reason pursuant to
Section 4(a)(iv) above, effective upon the thirtieth (30th) day after
delivery of a Notice of Termination. If this occurs, all bonuses not paid
shall be canceled. The Executive Committee shall have the authority to
dismiss the Executive immediately upon receipt of the Executive's
resignation and pay will cease immediately.
(b) If the Executive's employment is terminated because of the
Executive's death, the Executive's estate shall receive any sums due him as Base
Salary and/or reimbursement of expenses through the end of the month during
which death occurred, plus any bonus earned or accrued under the Bonus Plan
through the date of death and a pro rata share of any bonus with respect to the
current fiscal year which had been earned as of the date of the Executive's
death.
(c) During the period of any incapacity leading up to the termination
of the Executive's employment as a result of disability, the Employer shall
continue to pay the Executive his full Base Salary at the rate then in effect
and all other benefits (other than any bonus) until the Executive becomes
eligible for benefits under any long-term disability plan or insurance program
maintained by the Employer, provided that the amount of any such payments to the
Executive shall be reduced by the sum of the amounts, if any, payable to the
Executive for the same period under any disability benefit or pension plan of
the Company or any of its subsidiaries. Furthermore, the Executive shall receive
any bonus earned or accrued under the Bonus Plan through the date of incapacity.
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(d) If the Executive's employment is terminated for Cause as provided
above, or if the Executive resigns (except for a termination of employment
pursuant to Section 4(a)(iv)), the Executive shall receive any sums due him as
Base Salary and/or reimbursement of expenses through the date of such
termination. In such event, all vested stock options must be exercised within
ninety (90) days of termination or be forfeited.
(e) If the Executive's employment is terminated by the Executive
pursuant to Section 4(a)(iv), in addition to other rights and remedies available
in law or equity, the Executive shall be entitled to the following:
(i) the Employer shall pay the Executive in cash beginning
within fifteen (15) days of the Termination Date severance compensation
each month for twelve (12) months in an amount equal to one twelfth (1/12)
of his then current annual Base Salary, plus a lump sum payment of the
total of any bonus earned or accrued under the Bonus Plan through the
Termination Date plus a pro rata share of any bonus with respect to the
current fiscal year that has been earned as of the Termination Date.
(ii) All stock options and stock appreciation rights granted to
the Executive shall become immediately exercisable and shall become one
hundred percent (100%) vested. All options shall be exercisable at any time
during the ten (10) years following the date of initial public offering at
a price per share equal to the public offering price in the offering
(subject to standard antidilution adjustments in the event of stock splits,
dividends or combinations), that the Parties agree is the fair market value
of the Common Stock of the Company as of the date of grant.
(f) With the exception of the provisions of this Section 4, and the
express terms of any benefit plan under which the Executive is a participant, it
is agreed that upon
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termination of the Executive's employment pursuant hereto, the Employer shall
have no obligation to the Executive for, and the Executive waives and
relinquishes, any further compensation or benefits (exclusive of COBRA
benefits).
(g) In the event that the Executive's employment is terminated for
any reason, the Executive shall (and does hereby) tender his resignation as a
director of the Company and the Bank, effective as of the Termination Date.
(h) The parties intend that the severance payments and other
compensation provided for herein are reasonable compensation for the Executive's
services to the Employer and shall not constitute "excess parachute payments"
within the meaning of Section 280G of the Code and any regulations thereunder.
5. OWNERSHIP of Work. The Employer shall own all work product arising
during the course of the Executive's employment (prior, present, or future). For
purposes hereof, "Work Product" shall mean all intellectual property rights,
including all Trade Secrets, U.S. and international copyrights, patentable
inventions, and other intellectual property rights, in any programming,
documentation, technology, or other work product that relates to the Employer,
its business, or its customers, and that the Executive conceives, develops, or
delivers to the Employer at any time during his employment, during or outside
normal working hours, in or away from the facilities of the Employer, and
whether or not requested by the Employer. If the Work Product contains any
materials, programming, or intellectual property rights that the Executive
conceived or developed prior to, and independent of, the Executive's work for
the Employer, the Executive agrees to point out the pre-existing items to the
Employer and the Executive grants the Employer a worldwide, unrestricted,
royalty-free right, including the right to sublicense such items. The Executive
agrees to take such actions and execute such further
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acknowledgments and assignments as the Employer may reasonably request to give
effect to this provision.
6. PROTECTION OF TRADE SECRETS. The Executive agrees to maintain in
strict confidence and, except as necessary to perform his duties for the
Employer, the Executive agrees not to disclose any Trade Secrets of the Employer
during his employment or following the Executive's Termination Date so long as
he is receiving compensation from the Employer, or, if the Executive terminates
employment pursuant to Section 4(a)(v), for a period of six (6) months following
the Executive's Termination Date. As provided by Georgia statutes, "Trade
Secret" means information, including a formula, pattern, compilation, program,
device, method, technique, process, drawing cost data, or customer list, that:
(i) 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 (ii) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
7. PROTECTION OF OTHER CONFIDENTIAL INFORMATION. In addition, the
Executive agrees to maintain in strict confidence and, except as necessary to
perform his duties for the Employer, not to use or disclose any Confidential
Business Information of the Employer during his employment and following the
Executive's Termination Date so long as he is receiving compensation from the
Employer, or, if the Executive terminates employment pursuant to Section
4(a)(v), for a period of six (6) months following the Executive's Termination
Date. "Confidential Business Information" shall mean any internal, nonpublic
information (other than Trade Secrets already addressed above) concerning the
Employer's financial position and results of operations (including revenues,
assets, net income, etc.); annual and long-range business plans; product or
service plans; marketing plans and methods, training, educational,
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and administrative manuals; customer and supplier information and purchase
histories; and employee lists. The provisions of Section 6 above and this
Section 7 shall also apply to protect Trade Secrets and Confidential Business
Information of third parties provided to the Employer under an obligation of
secrecy.
8. RETURN OF MATERIALS. The Executive shall surrender to the Employer,
promptly upon its request and in any event upon termination of the Executive's
employment, all media, documents, notebooks, computer programs, handbooks, data
files, models, samples, price lists, drawings, customer lists, prospect data, or
other material of any nature whatsoever (in tangible or electronic form) in the
Executive's possession or control, including all copies thereof, relating to the
Employer, its business, or its customers. Upon the request of the Employer, the
Executive shall certify in writing compliance with the foregoing requirement.
9. RESTRICTIVE COVENANTS.
(a) No Solicitation of Customers. During the Executive's employment
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with the Employer and after the Executive's Termination Date so long as he is
receiving compensation from the Employer, or, if the Executive terminates
employment pursuant to Section 4(a)(v), for a period of six (6) months following
the Executive's Termination Date, the Executive shall not (except on behalf of
or with the prior written consent of the Employer), either directly or
indirectly, on the Executive's own behalf or in the service or on behalf of
others, (A) solicit, divert, or appropriate to or for a Competing Business, or
(B) attempt to solicit, divert, or appropriate to or for a Competing Business,
any person or entity that was a customer of the Employer on the Termination Date
and is located in the Territory and with whom the Executive has had material
contact.
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(b) No Recruitment of Personnel. During the Executive's employment
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with the Employer and after the Executive's Termination Date so long as he is
receiving compensation from the Employer or, if the Executive terminates
employment pursuant to Section 4(a)(v) above, for a period of six (6) months
following the Executive's Termination Date, the Executive shall not, either
directly or indirectly on the Executive's own behalf or in the service or on
behalf of others, (A) solicit, divert, or hire away, or (B) attempt to solicit,
divert, or hire away, to any Competing Business located in the Territory, any
employee of or consultant to the Employer engaged or experienced in the
Business, regardless of whether the employee or consultant is full time or
temporary, the employment or engagement is pursuant to written agreement, or
whether the employment is for a determined period or is at will.
(c) Noncompetition Agreement. During the Executive's employment with
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the Employer and after the Executive's Termination Date so long as he is
receiving compensation from the Employer, or, if the Executive terminates
employment pursuant to Section 4(a)(v) above, for a period of six (6) months
following the Executive's Termination Date, the Executive shall not (without the
prior written consent of the Employer) compete with the Employer by, directly or
indirectly, forming, serving as an organizer, director or officer of, or
consultant to, or acquiring or maintaining any interest in a depository
institution or holding company therefor if such depository institution or
holding company has one or more offices or branches located in the Territory.
10. INDEPENDENT PROVISIONS. The provisions in each of the above Sections
9(a), 9(b), and 9(c) are independent, and the unenforceability of any one
provision shall not affect the enforceability of any other provision.
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11. SUCCESSOR, BINDING AGREEMENT. The rights and obligations of this
Agreement shall bind and inure to the benefit of the surviving corporation in
any merger or consolidation in which the Employer is a party or any assignee of
all or substantially all of the Employer's business and properties. The
Executive's rights and obligations under this Agreement may not be assigned by
him, except that his right to receive accrued but unpaid compensation,
unreimbursed expenses and other rights, if any, provided under this Agreement
which survive termination of this Agreement shall pass after death to the
personal representatives of his estate.
12. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses last given by each party to the others; provided, however, that all
notices to the Employer shall be directed to the attention of the Company with a
copy to the Corporate Secretary of the Company. All notices and communications
shall be deemed to have been received on the date of delivery thereof. All
notices and other communications under this Agreement shall be given to the
Parties hereto at the following addresses:
If to the Employer:
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FNBG Bancshares, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
If to the Executive, to him at:
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13. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Georgia without giving
effect to the conflict of laws principles thereof. Any action brought by any
party to this Agreement shall be brought and maintained in a court of competent
jurisdiction in the State of Georgia.
14. NONWAIVER. Failure of the Employer to enforce any of the provisions
of this Agreement or any rights with respect thereto shall in no way be
considered to be a waiver of such provisions or rights, or in any way affect the
validity of this Agreement.
15. ENFORCEMENT. The Executive agrees that, in the event of any breach of
any covenant contained in Section 9(a), 9(b), or 9(c), the Employer shall be
entitled to obtain from a court of competent jurisdiction an injunction to
restrain the breach or anticipated breach of any such covenant, and to obtain
any other available legal, equitable, statutory, or contractual relief,
including but not limited to monetary damages. Should the Employer have cause to
seek such relief, no bond shall be required from the Employer, and the Executive
shall pay all attorney's fees and court costs that the Employer may incur to the
extent the Employer prevails in its enforcement action.
16. SAVINGS CLAUSE. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision or clause of this Agreement, or any portion thereof, shall be held by
any court or other tribunal of competent jurisdiction to be illegal, void, or
unenforceable in such jurisdiction, the remainder of such provision shall not be
thereby affected and shall be given full effect, without regard to the invalid
portion. It is the intention of the parties that, if any court construes any
provision or clause of this Agreement or any portion thereof, to be illegal,
void, or unenforceable because of the duration of such
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provision or the area or matter covered thereby, such court shall reduce the
duration, area, or matter of such provision, and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
17. JOINT AND SEVERAL. The obligations of the Company and the Bank to the
Executive hereunder shall be joint and several.
18. DEFINITIONS.
(a) Board means the Board of Directors.
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(b) Business means the operation of a depository financial
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institution, including, without limitation, the solicitation and acceptance of
deposits of money and commercial paper, the solicitation and funding of loans
and the provision of other banking services, and any other related business
engaged in by the Employer as of the Termination Date or any other conduct or
action by a lending institution as permitted by Federal or State law now or in
the future.
(c) Cause shall consist of any of:
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(i) the commission by the Executive of a willful act
(including, without limitation, a dishonest or fraudulent act) or a grossly
negligent act, or the willful or grossly negligent omission to act by the
Executive, which is intended to cause, causes, or is reasonably likely to
cause material harm to the Employer (including harm to its business
reputation);
(ii) the indictment of the Executive for the commission or
perpetration by the Executive of any felony or any crime involving
dishonesty, moral turpitude, or fraud;
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(iii) the material breach by the Executive of this Agreement
that, if susceptible of cure, remains uncured ten (10) days following
written notice to the Executive of such breach;
(iv) the receipt of any form of notice, written or otherwise,
that any regulatory agency having jurisdiction over the Employer intends to
institute any form of formal or informal regulatory action against the
Executive or the Employer (such as a memorandum of understanding that
relates to the Executive's performance) that the Executive Committee
determines in good faith, with the Executive abstaining from participating
in the consideration of and vote on the matter, that the subject matter of
such action involves acts or omissions by or under the supervision of the
Executive or that termination of the Executive would materially advance the
Employer's compliance with the purpose of the action or would materially
assist the Employer in avoiding or reducing the restrictions or adverse
effects to the Employer related to the regulatory action;
(v) the exhibition by the Executive of a standard of behavior
within the scope of his employment that is materially disruptive to the
orderly conduct of the Employer's business operations (including, without
limitation, substance abuse or sexual misconduct) to a level which, in the
good faith and reasonable judgment of the Executive Committee, with the
Executive abstaining from participating in the consideration of and vote on
the matter, is materially detrimental to the Employer's best interest, and
that, if susceptible of cure, remains uncured ten (10) days following
written notice to the Executive of such specific inappropriate behavior;
(vi) the Executive is adjudicated bankrupt or the Executive
files for voluntary bankruptcy; or
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(vii) the failure of the Executive to devote his full business
time and attention to his employment as provided under this Agreement.
(d) Change in Control means the occurrence during the Term of any of
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the following events, unless such event is a result of a Noncontrol Transaction:
(i) The individuals who, as of the date of this Agreement, are
members of the Board of the Company (the "Incumbent Board") cease for any
reason to constitute at least two-thirds (2/3rds) of the Board of the
Company; provided, however, that if the election, or nomination for
election by the Company's shareholders of any new director was approved in
advance by a vote of at least two-thirds (2/3rds) of the Incumbent Board,
such new director shall, for purposes of this Agreement, be considered as a
member of the Incumbent Board; provided further, that no individual shall
be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 promulgated under the Securities
Exchange Act of 1934 (the "Exchange Act"), or other actual or threatened
solicitation of proxies or consents by or on behalf of any person other
than the Board of the Company (a "Proxy Contest"), including by reason of
any agreement intended to avoid or settle any Election Contest or Proxy
Contest.
(ii) An acquisition (other than directly from the Company) of
any voting securities of the Company (the "Voting Securities") by any
"Person" (as the term "person" is used for purposes of Section 13(d) or
14(d) of the Exchange Act) immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule l3 promulgated under the
Exchange Act) of twenty percent (20%) or more of the combined voting power
of the Company's then outstanding Voting
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Securities; provided, however, that in determining whether a Change in
Control has occurred, Voting Securities that are acquired in a Noncontrol
Acquisition shall not constitute an acquisition that would cause a Change
in Control.
(iii) Approval by the shareholders of the Company of: (A) a
merger, consolidation, or reorganization involving the Company, (B) a
complete liquidation or dissolution of the Company, or (C) an agreement for
the sale or other disposition of all or substantially all of the assets of
the Company to any Person (other than a transfer to a Subsidiary).
(iv) A notice of an application is filed with the Federal
Reserve Board (the "FRB") pursuant to Regulation "Y" of the FRB under the
Change in Bank Control Act or the Bank Holding Company Act or any other
bank regulatory approval (or notice of no disapproval) is granted by the
Federal Reserve, the OCC, the Federal Deposit Insurance Corporation, or any
other regulatory authority for permission to acquire control of the Company
or any of its banking subsidiaries.
(v) Notwithstanding the foregoing, a Change in Control shall
not include any transaction involving only the Company and the Bank or its
subsidiaries.
(e) Code means the Internal Revenue Code of 1986, as amended.
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(f) Competing Business means any business that, in whole or in part,
-------------------
is the same or substantially the same as the Business.
(g) Executive Committee means the Executive Committee of the Board of
-------------------
Directors of the Company or, if established, the Compensation Committee or
Personnel Committee of the Board of Directors of the Company. If no such
committee(s) exist, "Executive Committee" shall mean the Board.
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(h) Good Reason means the occurrence after a Change in Control of any
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of the following events or conditions.
(i) a negative change in the Executive's status, title,
position, or responsibilities;
(ii) a reduction in the Executive's Base Salary or any failure
to pay the Executive any compensation or benefits to which he is entitled
within five (5) days of the date due;
(iii) the Employer's requiring the Executive to be based at any
place outside a ten (10) mile radius from the executive offices occupied by
the Executive immediately prior to the Change in Control, except for
reasonably required travel on the Employer's business that is not
materially greater than such travel requirements prior to the Change in
Control;
(iv) the failure by the Employer to continue in effect (without
reduction in benefit level and/or reward opportunities) any material
compensation or employee benefit plan in which the Executive was
participating at any time within ninety (90) days preceding the date of a
Change in Control; or
(v) Any material breach by the Employer of any material
provision of this Agreement.
(i) Termination Date means the earliest of:
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(i) the Executive's death or disability;
(ii) the end of the Term; or
(iii) the effective date of the Executive's termination of
employment, as outlined in Sections 4(a)(iii), 4(a)(iv), or 4(a)(v).
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(j) Territory means a radius of ten (10) miles from the main office
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of the Employer or any branch office of the Employer.
19. ENTIRE Agreement. This Agreement constitutes the entire agreement
between the Parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the Parties with
respect to the subject matter hereof, including, but not limited to, the
Employment Agreement between the Bank and the Executive dated August 11, 1999.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement to
be executed and their seals to be affixed hereunto by its officers thereunto
duly authorized, and the Executive has signed and sealed this Agreement,
effective as of the date first above written.
THE COMPANY THE BANK
FNBG BANCSHARES, INC. FIRST NATIONAL BANK OF GWINNETT
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
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Title: Chairman, Personnel Committee Title: Chairman, Personnel Committee
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THE EXECUTIVE
/s/Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
20
