SEPARATION AGREEMENT AND GENERAL RELEASE
EXHIBIT
10.19
SEPARATION
AGREEMENT AND GENERAL RELEASE
THIS
SEPARATION AGREEMENT AND GENERAL RELEASE (“Agreement”) is made and entered into
by and between Xxxxxx X. Xxx (“Executive”) and Albany Bank & Trust, a
national bank, and Community Capital Bancshares, Inc., a bank holding company
(collectively “Employer”).
STATEMENT
OF FACTS
Executive
desires to accept the following agreements, including, without limitation,
certain additional consideration from Employer in return for Executive’s general
release and non-disclosure agreements set forth below. Executive and Employer
desire to settle fully and finally all differences and disputes between them,
including, but in no way limited to, any differences and disputes that might
arise, or have arisen, out of Executive’s employment with and separation from
Employer and Executive’s resignation as an officer and director of
Employer.
STATEMENT
OF TERMS
In
consideration of the mutual promises herein, it is agreed as
follows:
1. Non-Admission
of Liability.
Neither
this Agreement nor Employer’s offer to enter into this Agreement shall in any
way be construed as an admission by Employer that it has acted wrongfully with
respect to Executive or any other person, or that Executive has any rights
whatsoever against Employer. Employer specifically disclaims any liability
to or
wrongful acts against Executive or any other person, on the part of itself,
its
shareholders, officers, directors, employees, agents or
representatives.
2. Resignation
of Employment.
Executive acknowledges, understands and agrees that Executive voluntarily
resigned from his employment with, and as an officer and director of, Employer
and all affiliated entities on Friday, March 17, 2006 (the “Separation Date”).
The parties agree that except as set forth herein, this Agreement terminates
all
aspects of the relationship between them. Executive therefore acknowledges,
understands and agrees that Executive does not and will not seek reinstatement,
future employment or return to active employment status with Employer. Executive
further acknowledges, understands and agrees that Employer is under no
obligation to consider Executive for reinstatement, employment, re-employment,
consulting or similar status at any time.
3. Effective
Date.
This
Agreement shall become effective immediately following the seven (7) revocation
period set forth in Section 11(e) (the “Effective Date”). As of the Effective
Date, if neither party has revoked this Agreement pursuant to
Section 11(e), this Agreement shall be fully effective and
enforceable.
4. Consideration.
In full
consideration and as material inducement for Executive’s signing of this
Separation Agreement and General Release, the receipt, adequacy and sufficiency
of which are hereby acknowledged:
(a) Employer
will continue
paying Executive his current salary for one (1) year. Such payments will begin
on Employer’s first regularly scheduled payroll date following the Effective
Date of this Agreement. All legal deductions and required withholdings will
be
taken, consistent with Employer’s payroll practices.
(b) Employer
will continue
Executive’s current health coverage with Employer, at the current cost to
Executive or at the rates chargeable to Employer’s employees for benefit
coverage, for one (1) year. Executive’s portion of the premium costs will be
deducted from the payment set forth in Section 4(a) above. Executive will only
be eligible for the health coverage described in this section to the extent
Executive elects COBRA coverage.
(c) Employer
will pay Executive $50,000 in a lump sum from which all legal deductions and
required withholdings will be taken, no later than ten (10) days following
the
Effective Date of this Agreement.
(d) Employer
will release Executive from the non-competition restriction in Alabama, by
which
he is bound under the employment agreement between the parties dated September
13, 2004 (“Employment Agreement”).
(e) Employer
will transfer to the Executive ownership of his business cell phone, but will
not provide cellular service for such phone.
5. Cessation
of Authority.
Executive acknowledges, understands and agrees that following the Separation
Date, Executive is not authorized to incur any expenses, obligations or
liabilities, or to make any commitments on behalf of Employer. Executive agrees
to submit to the Chief Financial Officer of Employer (“CFO”) on or before the
Effective Date, any and all expenses that were incurred by Executive on behalf
of Employer (which have not previously been reimbursed) and any and all
contracts or other obligations entered into by Executive on behalf of Employer
(which have not previously been disclosed), including but not limited to any
loans agreed to or memoranda of understanding entered into on behalf of the
Employer. Employer agrees to reimburse Executive for reimbursable expenses
incurred by Executive through his Separation Date which have not yet been
reimbursed and which are promptly submitted to Employer, pursuant to Employer’s
standard policies and procedures relating to reimbursement of
expenses.
6. Agreement
Not to Disclose Trade Secrets and Confidential
Information.
Executive acknowledges, understands and agrees that in the course of employment
with Employer, Executive has acquired Confidential Information and Trade
Secrets, as those terms are defined below, concerning Employer’s operations, its
policies and practices, its future plans and its methods of doing business,
which information Executive understands and agrees would be extremely damaging
to Employer if disclosed to a competitor or made available to any other person
or entity. Executive acknowledges, understands and agrees that such information
has been divulged to Executive in confidence. Executive agrees to protect and
hold in strict
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confidence
all Company Information, as that term is defined below, that Executive has
received or created on behalf of Employer and that Executive will not, directly
or indirectly, use, publish, disseminate or otherwise disclose any Company
Information to any third party without Employer’s prior written consent, unless
and until such time as the restrictions on Executive’s use or disclosure of such
Company Information expire as set forth herein below. If a disclosure of Company
Information is required by law, subpoena or court order, Executive agrees to
give Employer the maximum feasible prior written notice of the legal
justifications and requirements for any proposed disclosure of such information
so that Employer may object to such disclosure if appropriate.
Executive
further acknowledges, understands and agrees that Executive has complied with
Employer’s policies and his Employment Agreement regarding the protection of
Company Information, that Executive has held such information in trust and
strict confidence, and that Executive will continue to do so according to the
terms set forth in this Agreement.
The
restrictions on Executive’s use or disclosure of all Company Information, as set
forth above, shall survive for a period of two years; provided however, that
the
restrictions on the use or disclosure of Trade Secrets shall survive beyond
such
two year period for so long as such information qualifies as a Trade Secret
under applicable law.
In
view
of the nature of Executive’s employment and Company Information which Executive
has received or created during the course of Executive’s employment, Executive
likewise acknowledges, understands and agrees that Employer
would be
irreparably harmed by any material violation, or threatened material violation
of this Agreement by Executive and that, therefore, Employer
shall be
entitled to an injunction prohibiting Executive from any violation or threatened
violation of this Agreement, and shall further be entitled to recover any
damages proximately caused by such violation(s). The undertakings set forth
in
this section shall survive the termination of other arrangements contained
in
this Agreement.
“Company
Information” means Confidential Information and Trade Secrets. However, “Company
Information” does not include any information which: (i) at the time of
disclosure to Executive, was in the public domain or was already lawfully in
Executive’s possession without a breach of duty owed to Employer;
(ii) after disclosure to Executive, is published or otherwise becomes part
of the public domain without a breach of duty owed to Employer and through
no
fault of Executive; or (iii) was received after disclosure to Executive
from a third party who had a lawful right to and, without a breach of duty
owed
to Employer, did disclose such information to Executive.
“Confidential
Information” means any and all information of Employer other than Trade Secrets
that has value and is not generally known to Employer’s competitors. This
includes any information about Employer’s loan, accounting or financial
practices or procedures; Employer’s operations; its future plans; actual or
potential customers, vendors and suppliers; and its methods of doing
business.
“Trade
Secret” means information related to the business or services of Employer which:
(i) derives independent actual or potential commercial value from not being
generally known or
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readily
ascertainable through independent development or reverse engineering by third
parties who can obtain economic value from its disclosure or use; and
(ii) is the subject of efforts by Employer and such third parties that are
reasonable under the circumstances to maintain its secrecy. Assuming the
foregoing criteria in the immediately preceding clauses (i) and (ii) are
met, Trade Secret includes business and technical information including, without
limitation, designs, formulas, patterns, compilations, programs, devices,
inventions, methods, techniques, drawings, processes, finances, and existing
and
future products and services of Employer.
7. Return
of Company Materials and Property.
Executive acknowledges, understands and agrees that as a result of Executive’s
employment with Employer, Executive has had in Executive’s custody, possession
and control documents, data, materials, files and other items that are the
property of Employer or its customers, including loan applications and
portfolios and Company Information. Executive agrees that to the extent
Executive has not already done so, Executive will turn over to Employer’s Chief
Financial Officer on or before the Effective Date, all files (including loan
files), memoranda, records, credit cards, manuals, computer equipment, computer
software, pagers, cellular phones, facsimile machines, Company Information,
and
any other equipment or documents, and all other property of similar type that
Executive received from Employer and/or that Executive used in the course of
Executive’s employment with Employer and that is the property of Employer or its
customers (including any electronic versions of such items). Executive further
agrees that after returning any electronic or physical versions of such items,
Executive will permanently delete and destroy any remaining electronic versions
or physical copies in Executive’s possession, custody or control. Executive
further acknowledges, understands and agrees that he is to return his laptop
computer to the CFO without deleting or destroying any information thereon.
8. Confidentiality
of Agreement.
Executive acknowledges, understands and agrees that Executive has kept and
will
keep the terms, amount, value, and nature of consideration paid to Executive,
and the existence of this Agreement completely confidential, and that Executive
will not hereafter disclose any information concerning this Agreement to anyone
other than Executive’s immediate family, accountants, attorneys and other
professional representatives who will be informed of and bound by this
confidentiality clause.
9. Non-Disparagement
and Professionalism.
Executive acknowledges, understands and agrees that Executive will not make
or
issue, or procure any person or entity to make or issue, any statement in any
form (including but not limited to, statements to the media, on web-sites,
via
the internet or in web “chat rooms”) concerning: (i) Employer or any of its
stockholders, officers, directors, employees, agents or representatives;
(ii) Executive’s employment relationship with Employer; or (iii) the
termination of Executive’s employment relationship with Employer, to any person
or entity if such statement is harmful to or disparaging of Employer or any
of
its stockholders, officers, directors, employees, agents or representatives.
10.
Complete
Release.
As a
material inducement to the parties to enter into this Agreement, Executive
hereby irrevocably and unconditionally releases, acquits and forever discharges
Employer and each of Employer’s stockholders, officers, directors, employees,
successors, assigns, agents, representatives, attorneys, and all persons acting
by, through, under or in concert with any of them (collectively “Releasees”),
from any and all charges, complaints,
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claims,
liabilities, obligations, promises, agreements (excluding this Agreement
itself), controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts, and expenses of any nature whatsoever, known
or
unknown, suspected or unsuspected, including, but not limited to, rights arising
out of alleged violations or breaches of any contracts, express or implied
(including the Employment Agreement), or any tort, or any legal restrictions
on
Employer’s right to terminate employees, or any federal, state or other
governmental statute, regulation, or ordinance, including, without limitation:
(1) Title VII of the Civil Rights Act of 1964, as amended by the Civil
Rights Act of 1991; (2) the Americans with Disabilities Act; (3) 42 U.S.C.
§ 1981; (4) the Age Discrimination in Employment Act, as amended by the
Older Workers Benefit Protection Act; (5) the Equal Pay Act; (6) the
Employee Retirement Income Security Act (“ERISA”); (7) Section 503 of the
Rehabilitation Act of 1973; (8) the False Claims Act (including the qui tam
provision thereof); (9) the Occupational Safety and Health Act; (10) the
Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”); (11)
intentional or negligent infliction of emotional distress or “outrage”;
(12) interference with employment and/or contractual relations;
(13) wrongful discharge; (14) invasion of privacy; (15) assault and
battery; (16) defamation; (17) whistleblowing; and (18) violation of any
other legal or contractual duty arising under the laws of the state of Georgia
or the United States of America, (individually the “Claim” and collectively the
“Claims”), which Executive now has, owns or holds, or claims to have, own or
hold, or which Executive at any time heretofore had, owned or held, or claimed
to have, owned or held, against each or any of the Releasees at any time up
to
and including the date of execution of this Agreement.
The
parties specifically agree that this release does not cover, and Executive
expressly reserves, indemnification rights existing to him as a current or
former director and/or officer of Employer under the Articles and Bylaws of
Community Capital Bancshares, Inc. and Albany Bank & Trust and pursuant to
applicable Georgia law.
11. Age
Discrimination In Employment Act.
Executive acknowledges, understands and agrees that this Agreement and the
termination of Executive’s employment and all actions taken in connection
therewith are in compliance with the Age Discrimination in Employment Act
(“ADEA”) and the Older Workers Benefit Protection Act (“OWBPA”) and that the
releases set forth in Section 10 hereof shall be applicable, without limitation,
to any claims brought under these Acts. Executive further acknowledges,
understands and agrees that:
(a) the
release given by Executive in this Agreement is given solely in exchange for
the
consideration set forth in Section 4 of this Agreement and such consideration
is
in addition to anything of value which Executive was entitled to receive prior
to entering into this Agreement;
(b) by
entering into this Agreement, Executive does not waive rights or claims that
may
arise after the date this Agreement is executed;
(c) Executive
has been advised to consult an attorney prior to entering into this Agreement,
and this provision of this Agreement satisfies the requirement of the OWBPA
that
Executive be so advised in writing;
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(d) Executive
has been offered twenty-one (21) days from his receipt of this Agreement within
which to consider this Agreement; and
(e) for
a
period of seven (7) days following Executive’s execution of this Agreement,
Executive or Employer may revoke this Agreement by delivering written notice
of
such revocation to the Executive or to the Employer’s CFO (as the case may be)
and this Agreement shall not become effective or enforceable until such seven
(7) day period has expired.
12.
No
Other Claims.
Executive acknowledges, understands and agrees that Executive has not filed,
nor
assigned to others the right to file, nor are there pending, any complaints,
charges or lawsuits by or on behalf of Executive against Employer with any
governmental agency or any court. Executive further acknowledges, understands
and agrees that Executive will not purchase or acquire any Claim from a third
party or be assigned any Claim by a third party against Employer on or after
the
Effective Date.
13.
Indemnification.
As
further material inducement to Employer to enter into this Agreement, Executive
hereby agrees to indemnify and hold each and all of the Releasees harmless
from
and against any and all loss, costs, damages or expenses, including without
limitation, attorneys’ fees incurred by Releasees or by any of the Releasees’
agents, representatives or attorneys arising out of any breach of this Agreement
by Executive or the fact that any acknowledgement, understanding, agreement
or
representation made herein by Executive was false when made.
14.
Acknowledgments.
(a) Executive
acknowledges, understands and agrees that Executive has been paid in full for
all hours that Executive has worked for Employer and that Executive has been
paid any and all compensation or bonuses which have been earned by Executive
(whether under any employment agreement or otherwise) through the date of
execution of this Agreement.
(b) Executive
acknowledges, understands and agrees that Executive is not eligible for or
vested in any benefits under any salary continuation plan (or SERP) with
Employer, and that he waives and releases all claims to file suit for same.
(c) Executive
acknowledges, understands and agrees that Executive does not have any
outstanding loans from or balances due to Employer.
(d) Executive
acknowledges, understands and agrees that Executive has been informed of
Employer’s Family and Medical Leave Act (“FMLA”) policy and Executive’s rights
thereunder. Executive acknowledges, understands and agrees that he has not
been
denied any FMLA leave, that he is not currently requesting any FMLA leave,
and
that to the extent applicable, he has been returned to his same or a
substantially similar job following any FMLA leave that he has
taken.
(e) Executive
acknowledges, understands and agrees that Executive has no knowledge of any
actions or inactions by any of the Releasees or by Executive that Executive
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believes
could possibly constitute a basis for a claimed violation of any federal, state,
or local law, any common law or any rule promulgated by an administrative
body.
(f) Executive
acknowledges, understands and agrees that the consideration described above
in
Section 4 of this Agreement is not required by Employer’s policies and
procedures or by any contracts between Executive and Employer. Executive further
acknowledges, understands and agrees and understands that Executive’s
entitlement to receive the consideration set forth in Section 4 is conditioned
upon Executive’s execution and delivery of this Agreement and compliance with
the terms of this Agreement.
(g) Executive
acknowledges, understands and agrees that in executing this Agreement Executive
does not rely, and has not relied, upon any representation or statement not
set
forth herein made by any of the Releasees or by any of the Releasees’ agents,
representatives, or attorneys with regard to the subject matter, basis or effect
of this Agreement or otherwise.
(h) Employer
advises Executive to consult with an attorney prior to executing this Agreement.
Executive acknowledges, understands and agrees that Executive has had the
opportunity to consult counsel if Executive chose to do so. Executive
acknowledges, understands and agrees that Executive is responsible for any
costs
and fees resulting from Executive's attorney reviewing this
Agreement.
15.
Non-Solicitation
Agreement.
(a) Agreement
Not to Solicit Customers or Consultants.
Executive agrees that beginning immediately and continuing for a period of
one
year from the Separation Date, Executive will not, either directly or
indirectly, on Executive’s own behalf or in the service of or on behalf of
others, (1) solicit, divert, or appropriate or attempt to solicit, divert,
or
appropriate to any third party, any individual or entity which was an actual
or
actively sought prospective client, customer, or consultant of Employer
(determined at the Separation Date and continuing for a period of one year
thereafter) and with whom Executive had material contact during his term of
employment with Employer, for purposes of providing products or services that
are competitive with those provided by Employer; or (2) interfere in any way
with Employer’s business relationship with any person or entity.
(b) Agreement
Not to Solicit Employees.
Executive agrees that beginning immediately, and continuing for a period of
one
year from the Separation Date, Executive will not, either directly or
indirectly, on his own behalf or in the service of or on behalf of others,
solicit, divert or hire, or attempt to solicit, divert or hire, any person
employed by Employer, and whom Executive supervised, either directly or
indirectly, or hired on behalf of Employer, whether or not such employee is
a
full-time employee or a temporary employee of Employer and whether or not such
employment is pursuant to written agreement and whether or not such employment
is for a determined period or is at will.
16.
Non-Competition
Agreement.
The
parties acknowledge and agree: that Executive’s services to Employer required
special expertise and talent in the provision of banking and financial services
and that Executive had substantial contacts with customers and clients of
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Employer
during his employment; that Executive was placed in a position of trust and
responsibility with Employer and had access to a substantial amount of Company
Information; that Executive is the repository of a substantial portion of the
goodwill of Employer due to his responsibilities for Employer and that he would
have an unfair advantage in competing with Employer; that Executive is capable
of competing with Employer; and that Executive is capable of obtaining gainful,
lucrative and desirable employment that does not violate the restrictions
contained in this Agreement. Accordingly, Executive agrees that for a period
of
twenty-four (24) months following the Separation Date, Executive will not,
within the Area (as defined below), either directly or indirectly, on
Executive’s own behalf or in the service of or on behalf of others, undertake
for any Competing Business (as defined below) duties and responsibilities
similar to those undertaken by the Executive for the Employer.
(a) For
purposes of this Agreement, “Area” is defined as the Xxxxxxxxx and Xxx counties,
Georgia.
(b) For
purposes of this Agreement, “Competing Business” is defined as: any person,
individual or entity engaged, wholly or in part, in providing banking or
financial products or services similar in scope to those provided by Employer
during the term of Executive’s employment with Employer or engaged in organizing
a bank competitive to Employer.
17.
Enforcement
of Restrictive Covenants, Confidentiality and
Non-Disparagement.
(a) In
the
event either party breaches, or threatens to commit a breach of, any of the
provisions of Sections 6, 8, 15 and 16 the injured party shall have the right
and remedy to enjoin, preliminarily and permanently, the other from violating
or
threatening to violate these sections and to have these sections specifically
enforced by any court of competent jurisdiction, it being agreed that any breach
or threatened breach of these sections would cause irreparable injury to the
injured party and that monetary damages would not provide an adequate remedy
to
such party. Such right and remedy shall be in addition to, and not in lieu
of,
any other rights and remedies available to the injured party at law or in
equity.
(b) Executive
acknowledges and agrees that the covenants contained in Sections 6, 8, 15 and
16
are reasonable and valid in time and scope and in all other respects. These
covenants shall be considered and construed as separate and independent
covenants. Should any part or provision of any covenant be held invalid, void
or
unenforceable in any court of competent jurisdiction, such invalidity, voidness
or unenforceability shall not render invalid, void or unenforceable any other
part or provision of this Agreement. If any portion of the foregoing sections
are found to be invalid or unenforceable by a court of competent jurisdiction
because its duration, territory, definition of activities or the definition
of
information covered is considered to be invalid or unreasonable in scope, the
invalid or unreasonable term shall be redefined or a new enforceable term
provided, such that the intent of Employer and Executive in agreeing to the
provisions of this Agreement will not be impaired and the provision in question
shall be enforceable to the fullest extent of the applicable laws.
(c) In
the
event that the enforcement of any of the terms of this Agreement is sought
in a
court of competent jurisdiction, including any period during which a restrictive
covenant is
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in
force,
and the protective restrictive covenant or term of the Agreement is held to
be
enforceable, the restrictive time period specified in the Agreement shall be
deemed tolled upon the filing of the lawsuit seeking to enforce the Agreement
until the dispute is finally resolved and all periods of appeal have
expired.
18.
Severability.
The
provisions of this Agreement are severable, and if any paragraph or part is
found to be unenforceable, the remainder of the Agreement shall remain fully
valid and enforceable.
19.
Mutual
Cooperation.
Executive agrees to cooperate fully with Employer regarding: any banking or
regulatory matters; with respect to clients or customers of Employer; or with
respect to any employment or business issues, that arise after the Separation
Date. Employer agrees to cooperate with Employee as may be reasonably requested
of Employer with respect to matters relating to the Bank.
20.
Sole
and Entire Agreement.
This
Agreement sets forth the entire agreement between the parties hereto, and
supersedes any and all prior agreements or understandings between the parties
pertaining to the subject matter hereof.
21.
Binding
Effect; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, representatives, successors, transferees and
permitted assigns. This Agreement shall not be assignable by Executive but
shall
be freely assignable by Employer.
22.
Governing
Law.
This
Agreement shall be interpreted under the laws of the State of
Georgia.
23. Regulatory
Approval.
The
parties have entered into this Agreement in good faith, intending to be bound
fully hereby. Nonetheless, the parties acknowledge, understand and agree that
the Bank is a regulated entity and, to the extent any regulatory agency has
the
authority to disapprove or void this Agreement, the parties agree to be bound
thereby.
24. Knowledgeable
Decision By Executive.
Executive acknowledges, understands and agrees that Executive has read all
the
terms of this Agreement. Executive understands the terms of this Agreement
and
understands that this Agreement releases forever Employer from any legal action,
arising from Executive’s relationship with Employer as an employee and board
member and the termination of the employment relationship between Executive
and
Employer. Executive is signing and delivering this Agreement of Executive’s own
free will in exchange for the consideration to be given to
Executive.
25. Full
and Careful Consideration.
Executive acknowledges, understands and agrees that Executive may take the
Agreement home and carefully consider all of its provisions before signing
it.
Executive may take up to twenty-one (21) days to decide whether Executive wants
to accept and sign this Agreement. Executive acknowledges, understands and
agrees that if Executive signs this Agreement, Executive and Employer will
then
have an additional seven (7) days after
Executive signs the Agreement in which to revoke it. This Agreement will not
be
effective or enforceable, nor will any consideration be paid, until after the
seven (7) day period
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set
forth
in Section 11(e) has expired. Again, Executive is free, and encouraged, to
discuss the contents and advisability of signing this Agreement with an attorney
of Executive’s choosing.
EXECUTIVE
SHOULD READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF
ALL
KNOWN AND UNKNOWN CLAIMS AND CONTAINS RESTRICTIVE COVENANTS BARRING SPECIFIC
ACTIVITIES.
| March 30, 2006 | /s/ Xxxxxx X. Xxx | |
| DATE | Xxxxxx X. Xxx | |
| March 30, 2006 | ALBANY BANK & TRUST | |
| DATE |
|
|
| By: | /s/ Xxxxxxx X. Xxxxx, III | |
| Name: Xxxxx Xxxxx | ||
| Title: Chairman, Board of Directors | ||
| March 30, 2006 | COMMUNITY CAPITAL BANCSHARES, INC. | |
| DATE |
|
|
| By: | /s/ Xxxxxxx X. Xxxxx, III | |
| Name: Xxxxx Xxxxx | ||
| Title: Chairman, Board of Directors | ||
| Date Agreement received by Employer: March 30, 2006. | ||
| By: | /s/ Xxxxxxx X. Xxxxx, III | |
| Name: Xxxxx Xxxxx | ||
| Title: Chairman, Board of Directors | ||
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