EXHIBIT 10.28
CITIZENS BANK OF GWINNETT
This agreement made and entered into effective as of the 11th day of
December, 1990, between the CITIZENS BANK OF GWINNETT, DULUTH, GEORGIA ("the
Bank") and XXXXXX X. XXXXXX ("employee");
WHEREAS, the bank is a state bank regulated by the Georgia Department of
Banking and Finance and located in Duluth, Georgia; and
WHEREAS, employee is currently employed as President and Chief Executive
Officer of the bank; and
WHEREAS, the parties desire to enter into this agreement setting forth the
terms and conditions of the employment relationship of the bank and the
employee;
NOW, THEREFORE, it is AGREED as follows:
I. RELATIONSHIP ESTABLISHED AND DUTIES
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1. The bank hereby will continue to employ the employee as President and
Chief Executive Officer, to hold the title of President and Chief Executive
Officer, and to perform such services and duties as the Board of Directors may,
from time to time, designate during the term hereof. Subject to the terms and
conditions hereof, employee will perform such duties and exercise such authority
as are customarily performed and exercised by persons holding such office,
subject to the general direction of the Board of Directors of the bank,
exercised in good faith in accordance with standards of reasonable business
judgment.
2. Employee shall serve on the Board of Directors of the bank and as a
member of its Executive Committee, subject to the terms hereof.
3. Employee accepts such employment and shall devote his full time,
attention, and efforts to the diligent performance of his duties herein
specified and as an officer and director of the bank and will not accept
employment with any other individual, corporation, partnership, governmental
authority, or any other entity, or engage in any other venture for profit which
the bank may consider to be in conflict with his or its best interest or to be
in competition with the bank's business, or which may interfere in any way with
the employee's performance of his duties hereunder. Any exception to this must
be made by notification and approval of the Board.
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Bank CEO Employment Agreement
II. TERMS OF EMPLOYMENT
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1. The initial term of employment under this Agreement shall continue
for three years unless such is terminated pursuant to the terms hereof or by the
first to occur of the conditions to be stated hereinafter. This Agreement will
be automatically extended each year after the initial term unless either party
gives 90 days contrary written notice to the other. The term previously stated
notwithstanding this contract shall be terminated by the earlier to occur of any
of the following:
a. the death of the employee;
b. the complete disability of employee. "Complete disability" as
used herein shall mean the inability of employee, due to illness, accident, or
other physical or mental incapacity to perform the services provided for
hereunder for an aggregate of sixty days within any period of 120 consecutive
days during the term hereof; provided, however, disability shall not constitute
a basis for discharge for cause;
c. the discharge of employee by the bank for cause. "Cause" as
used herein shall mean:
1) such negligence or misconduct as shall constitute, as a
matter of law, a breach of the covenants and obligations of employee hereunder;
2) failure or refusal of employee to comply with the
provisions of this agreement;
3) employee being convicted by any duly constituted court
with competent jurisdiction of a crime involving moral turpitude;
4) at the discretion of the Board, this contract may be
terminated if there are acts the Board feels are moral turpitude;
5) termination of the contract at the discretion of the
Board for failure to perform at acceptable levels of deposit growth and other
performance standards as determined by the Board.
Termination of employee's employment shall constitute a tender by employee
of his resignation as an officer and director of the bank. In the event of
termination the employee is entitled to severance pay equal to one month's pay
for each year employed by the bank up to six months' salary.
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Bank CEO Employment Agreement
III. COMPENSATION
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For all services which employee may render to the bank during the term
hereof, the bank shall pay to employee, subject to such deductions as may be
required by law;
1. Base Salary. An annual salary of $111,000 payable in equal bimonthly
installments and subject to such deductions as may be required by law, for the
first 12 months. Thereafter, annual increase reviews will be done during the
month of December for a January 1 effective increase date during the term of
this Agreement so that for the 12 months beginning on each such anniversary
date, the employee's salary increases will take effect. The Board has sole
discretion as to the amount of the CEO's compensation.
2. Performance Bonuses. Each year, a performance bonus, ranging from 0%
to 50% of annual base salary will be awarded, based upon mutually agreed upon
goals such as the Return on Average Assets achieved before the application of
taxes based upon the following formula:
x. XXX equal to .90 but less than 1% Bonus = 5%
x. XXX greater than 1.0% but less than 1.10% Bonus = 10%
x. XXX equal to 1.10% but less than 1.20% Bonus = 15%
x. XXX equal to 1.20% but less than 1.30% Bonus = 20%
x. XXX equal to 1.30% but less than 1.40% Bonus = 25%
x. XXX equal to 1.40% but less than 1.60% Bonus = 30%
x. XXX equal to 1.60% but less than 1.75% Bonus = 35%
x. XXX equal to 1.75% but less than 2.00% Bonus = 40%
x. XXX over 2.00% Bonus = 50%
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Bank CEO Employment Agreement
IV. OTHER BENEFITS
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1. The employee shall be entitled to participate in any plan of the bank
relating to stock options, stock purchases, profit sharing, thrift, group life
insurance, medical coverage, education, or other retirement or employee benefits
that the bank may adopt for the benefit of its employees.
2. The employee shall be eligible to participate in any other benefits
which may be or become applicable to the bank's executive employees, shall be
furnished a car with all expenses of maintenance to cover all automobile use, a
reasonable expense account, the payment of reasonable expenses for attending
annual and periodic meeting of trade associations, and any other benefits which
are commensurate with the responsibilities and functions to be performed by the
employee under this Agreement. Employer also agrees to pay all reasonable
expenses in connection with the attendance and participation at said trade
association meetings by employee's spouse with Board approval.
3. At such reasonable times as the Board of Directors shall in its
discretion permit, the employee shall be entitled, without loss of pay, to
absent himself voluntarily from the performance of his employment under this
Agreement, all such voluntary absences to count as vacation time, provided that:
a. The employee shall be entitled to an annual vacation of three
weeks per year. The employee shall schedule at least two consecutive weeks of
vacation each year.
b. The timing of vacations shall be scheduled in a reasonable manner
by the employee. The employee shall not be entitled to receive any additional
compensation from the bank on account of his failure to take a vacation; nor
shall he be entitled to accumulate unused vacation time from one calendar year
to the next.
c. In addition to the aforesaid paid vacations, the employee shall
be entitled, without loss of pay to absent himself voluntarily from the
performance of his employment with the bank for such additional periods of time
and for such valid and legitimate reasons as the Board of Directors in its
discretion may determine. Further, the Board of Directors shall be entitled to
grant to the employee a leave or leaves of absence with or without pay at such
times and upon such terms and conditions as the Board, in its discretion, may
determine.
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Bank CEO Employment Agreement
V. CHANGE OF CONTROL
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1. If during the term of this Agreement there is a change of control
(COC) of the bank, the Employee shall be entitled to termination or severance
pay in the event the employee's employment is terminated, except for just cause
as defined in Section II., paragraph 1, c, after the change in control. In the
event the employee is terminated after 120 days as a result of COC, the employee
shall be entitled to receive his salary through the last day of the calendar
month of the termination, or payment in lieu of the notice period. In addition,
the terminated employee shall receive an amount equal to three times his then
existing annual base salary. This payment shall also be made in connection
with, or within 120 days after, a change in control of the bank if such change
in control was opposed by the employee or the bank's Board of Directors. This
payment shall be in addition to any amount otherwise owed to the employee
pursuant to this Agreement.
2. The following items are automatically considered due and payable in
the event that change of control occurs:
a. Non-forfeitable deferred compensation shall be paid out in full.
b. Long-term performance plan objective payments as described in
Section III, 2, f, shall be declared accomplished and earned based upon
performance up to date of the COC.
c. In the event that the employee is a participant in a restricted
stock plan, or share option plan, and such plan is terminated involuntarily as a
result of the COC, all stock and options shall be declared 100% vested, and
distributed. The term "control" shall refer to the acquisition of 25% or more
of the voting securities of the bank by any person, or persons acting as a group
within the meaning of Section 13(d) of the Securities Exchange Act of 1934, or
to such acquisition of a percentage between 10 percent and 25 percent if the
Board of Directors of the bank or the Georgia Department of Banking and Finance,
the FDIC, or the Federal Reserve Bank have made a determination that such
acquisition constitutes or will constitute control of the bank. The term
"person" refers to an individual, corporation, bank, bank holding company, or
other entity.
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Bank CEO Employment Agreement
VI. POST TERMINATION COVENANTS
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1. If during the term hereof employee shall cease employment hereunder
for any reason, then employee agrees that for one year following such
termination he will not be employed in the banking business or any related field
thereto in Duluth, Georgia or Gwinnett County, Georgia. Furthermore, following
such termination employee agrees that he will not, without the prior written
consent of the bank:
1) furnish anyone with the name of, or any list or lists of
customers of the bank or utilize such list or information himself for banking
purposes; or
2) furnish, use, or divulge to anyone any information acquired by
him from the bank relating to the bank's methods of doing business; or
3) contact directly or indirectly any customer of the bank for
banking solicitation purposes; or
4) hire for any other bank or employer (including himself) any
employee of the bank or directly or indirectly cause such employee to leave his
or her employment to work for another.
2. It is understood and agreed by the parties hereto that the provisions
of this section are independent of each other, and the invalidity of any such
provision or portion thereof shall not affect the validity or enforceability of
any other provisions of this agreement.
VII. WAIVER OF PROVISIONS
-------------------------
Failure of any of the parties to insist, in one or more instances, on
performance by the others in strict accordance with the terms and conditions of
this agreement shall not be deemed a waiver or relinquishment of any right
granted hereunder of the future performance of any such term or condition or of
any other term or condition of this agreement, unless such waiver is contained
in writing signed by or on behalf of all the parties.
VIII. GOVERNING LAW
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This agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Georgia. If for any reason any
provision of this agreement shall be held by a court of competent jurisdiction
to be void or unenforceable, the same shall not affect the remaining provisions
thereof.
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Bank CEO Employment Agreement
IX. MODIFICATION AND AMENDMENT
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This agreement contains the sole and entire agreement among the parties
hereto and supersedes all prior discussions and agreements among the parties,
and any such prior agreements shall, from and after the date hereof, be null and
void. This agreement shall not be modified or amended except by an instrument
in writing signed by or on behalf of the parties hereto.
X. COUNTERPARTS AND HEADINGS
----------------------------
This agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument. The headings set out herein are for
convenience of reference and shall not be deemed a part of this agreement.
XI. CONTRACT NONASSIGNABLE
--------------------------
This agreement may not be assigned or transferred by any party hereto, in
whole or in part, without the prior written consent of the other.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the year and date first above written.
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxx
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Witness Xxxxxx X. Xxxxxx
CITIZENS BANK OF GWINNETT
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxx
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Witness Chairman of the Board
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment made and entered into effective as of the 11 day of
March, 1997, between the Citizens Bank of Gwinnett, Duluth, Georgia (the "Bank")
and Xxxxxx X. Xxxxxx ("Employee");
WHEREAS, Employee is currently employed as Chairman of the Board and
Chief Executive Officer of the Bank under an Employment Agreement entered into
December 11, 1990 (the "Agreement");
WHEREAS, the parties desire to amend the Agreement to clarify
entitlements of Employee in the event of a Change in Control of the Bank;
WHEREAS, this Agreement is not intended to alter the compensation and
benefits that Employee reasonably could expect to receive in the absence of a
Change in Control of the Bank;
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants herein contained, the parties hereby agree as follows:
1.
Section V of the Agreement is hereby amended by deleting the existing
provision in its entirety and substituting the following therefor:
"If a 'Change in Control' (as defined below) occurs during the
term of this Agreement, in addition to any compensation or benefit
otherwise owed to the Employee pursuant to this Agreement, the
Employee shall become entitled to the benefits described below:
1. A single lump sum payment in the amount of $409,500.00 payable
not later than thirty (30) days following such Change in
Control; and
2. All outstanding stock options granted to the Employee under
the Citizens Gwinnett Bankshares, Inc. 1994 Employee Incentive
Stock Option Plan and the Citizens Gwinnett Bankshares, Inc.
Director Stock Option Plan (the "Stock Option Plans") shall
become 100% vested and immediately exercisable. The
provisions of this subparagraph (2) shall constitute an
amendment of the Employee's Stock Option Agreements under the
Stock Option Plans.
For the purposes of this Section V, the term "Change in Control" shall
refer to the acquisition of 25% or more of the voted securities of the
Bank by any Person, or Persons acting as a group within the meaning of
Section 13(d) of the Securities Exchange Act of 1934, or to such
acquisition of a percentage between 10% and 25% if the Board of
Directors of the Bank or the Georgia Department of Banking and
Finance, the FDIC, or the Federal Reserve Bank have made a
determination that such acquisition constitutes or will constitute
control of the Bank. The term "Person" refers to an individual,
corporation, bank, bank holding company, or other entity."
2.
The Agreement is hereby amended by adding the following as Section
XII:
"XII. Limitation on Benefits
----------------------
(1) If any of the compensation or benefits payable, or to be
provided, to Employee by the Bank under this Agreement are treated as
Excess Severance Payments (whether alone or in conjunction with
payments or benefits outside of this Agreement), the compensation and
benefits provided under this Agreement shall be modified or reduced in
the manner provided in (2) below to the extent necessary so that the
benefits payable or to be provided to Employee under this Agreement
that are treated as Severance Payments, as well as any payments or
benefits provided outside of this Agreement that are so treated, shall
not cause the Bank to have paid an Excess Severance Payment. In
computing such amount, the parities shall take into account all
provisions of Code Section 280G, and the regulations thereunder,
including making appropriate adjustments to such calculation for
amounts established to be Reasonable Compensation. If Employee
becomes entitled to compensation and benefits under this Agreement and
such payments are considered to be Severance Payments contingent upon
a Change in Control, Employee shall be required to mitigate breach of
contract damages (but only with respect to amounts that would be
treated as Severance Payments) by reducing the amount of damages he is
entitled to receive by any compensation and benefits he earns from
subsequent employment (but shall not be required to seek such
employment) during the 12-month period after termination (or such
other period as he is entitled to extended benefits).
(2) In the event that the amount of any Severance Payments which
would be payable to or for the benefit of Employee under this
Agreement must be modified or reduced to comply with this Section XII,
Employee shall direct which Severance Payments are to be modified or
reduced; provided, however, that no increase in the amount of any
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payment or change in the timing of the payment shall be made without
the consent of the Bank.
(3) This Section XII shall be interpreted so as to avoid the
imposition of excise taxes on Employee under Section 4999 of the Code
or the disallowance of a deduction to the Bank pursuant to Section
280G(a) of the Code with respect to amounts payable, or to be
provided, under this Agreement. Notwithstanding the foregoing, in no
event will any of the provisions of this Section XII create, without
the consent of Employee, an obligation on the part of Employee to
refund any amount to the Bank following payment of such amount.
(4) In addition to the limits otherwise provided in this Section
XII, to the extent permitted by law, Employee may in his sole
discretion elect to reduce any payments or benefits he may be eligible
to receive under this Agreement to prevent the imposition of excise
taxes on Employee under Section 4999 of the Code.
(5) For purposes of this Section XII, the following definitions
shall apply:
(I) "Excess Severance Payment" - The term AExcess Severance
--------------------------
Payment" shall have the same meaning as the term "excess
parachute payment" defined in Section 280G(b)(1) of the Code.
(ii) "Severance Payment" - The term "Severance Payment" shall
-------------------
have the same meaning as the term "parachute payment" defined in
Section 280G(b)(2) of the Code.
(iii) "Reasonable Compensation" - The term "Reasonable
-------------------------
Compensation" shall have the same meaning as provided in Section
280G(b)(4) of the Code. The parties acknowledge and agree that,
in the absence of a change in existing legal authorities or the
issuance of contrary authorities, amounts received by Employee as
damages under or as a result of a breach of this Agreement shall
be considered Reasonable Compensation.
(iv) "Present Value" - The term "Present Value" shall have the
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same meaning as provided in Section 280G(d)(4) of the Code."
Except as provided herein, the provisions of the Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the year and date first written above.
WITNESS: EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
WITNESS: CITIZENS BANK OF GWINNETT
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx, DDS
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SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This Second Amendment is made and entered into effective as of the
12th day of December, 1997, between Citizens Bank of Gwinnett (the "Bank") and
Xxxxxx X. Xxxxxx ("Employee").
WHEREAS, prior to the date hereof, Employee was employed by Citizens
Bank of Gwinnett ("Citizens Bank") in the position of Chairman of the Board and
Chief Executive Officer under an Employment Agreement entered into December 11,
1990 (the "Agreement"), which Agreement was modified by an Amendment to
Employment Agreement ("Amendment") dated March 11, 1997;
WHEREAS, the parties desire to amend the Agreement and the Amendment
to clarify and/or amend certain entitlements and responsibilities of Employee;
WHEREAS, this Second Amendment is not intended to alter the
compensation and benefits that Employee reasonably could expect to receive in
the absence of a Change in Control of Citizens Bank; and
WHEREAS, this Second Amendment is not intended to alter the rights and
obligations as expressed in the Agreement unless specifically stated herein;
NOW THEREFORE, for and in consideration of the promises and mutual
covenants contained herein and other good and valuable consideration, the
receipt and legal sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
A.
Section I of the Agreement is hereby amended by deleting subsections 1
and 2 thereof in their entirety and replacing said language with the following:
1. The Bank hereby appoints Employee as President of the Bank, to
perform such duties and services as the Board of Directors may,
from time to time, designate during the term hereof. Subject to
the terms and conditions hereof, Employee will perform such
duties and exercise such authority as are customarily performed
and exercised by persons holding such office, subject to the
general direction of the Board of Directors of the Bank,
exercised in good faith in accordance with standards of
reasonable business judgment.
2. Employee shall serve on the Board of Directors of Premier
Bancshares, Inc.
3. Upon consummation of the merger of the Bank with and into Premier
Bank, Employee shall be elected to serve as the President of the
East Metro Division of Premier Bank, provided Employee is
employed with the Bank immediately prior to the consummation of
such merger.
B.
Section II of the Agreement is hereby amended by inserting the
following as subsection 1(d):
1. (d) the expiration of six (6) months following a Change in
Control of the Bank (as defined below).
C.
Section III of the Agreement is hereby amended by deleting subsection
1 thereof in its entirety and replacing said language with the following:
1. Base Salary. Employee's present annual base salary shall be
$136,500.00. Effective January 1, 1998, Employee's annual base
salary shall be increased to $160,000.00, said increase being
subject to the approval of the Compensation Committee of Premier
Bancshares, Inc. Employee's annual base salary shall be payable
in equal bimonthly installments and subject to such deductions as
may be required by law.
D.
Section III of the Agreement is hereby amended by inserting the
following as subsection 3:
3. Merger Incentive. As an incentive for Employee's assistance in
the extra effort needed to close a merger, the Bank will, if the
conditions set forth below are met, pay to Employee a lump sum
bonus upon completion of a merger of Citizens Gwinnett
Bankshares, Inc. with and into Premier Bancshares, Inc. (the
"Merger"), based on the following schedule:
(a) $25,000.00, if the Merger is closed on or before October 31,
1997, said bonus to be payable on or before November 30,
1997;
(b) $20,000.00, if the Merger closes after October 31, 1997, and
before December 1, 1997, said bonus to be payable on or
before December 31, 1997; or
(c) $15,000.00, if the merger closes after November 30, 1997,
and before January 1, 1998, said bonus to be payable on or
before January 31, 1998.
Employee acknowledges and understands that he will be entitled to
no bonus under this subsection if the Merger with Premier
Bancshares, Inc. closes after December 31, 1997.
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E.
Section III of the Agreement is hereby amended by inserting the
following as subsection 4:
4. Growth Bonus. In recognition of Employee's crucial role in the
continued growth of the Bank, the Bank will pay to Employee a
lump sum bonus based upon the following schedule if the
conditions set forth below are met:
(a) If the Bank's profit target of $2.3 million is met for
calendar year 1997 and the Bank's core assets are greater
than $156,000,000.00 at December 31, 1997, the Bank will pay
to Employee a bonus of $25,000.00, payable on or before
January 31, 1997; and
(b) If the Bank exceeds profit target of $2.3 million for
calendar year 1997 and the Bank's core assets are greater
than $156,000,000.00 at December 31, 1997, the Bank will pay
to Employee an additional lump sum bonus equal to 5% of the
amount by which the Bank's profits exceeded $2.3 million for
calendar year 1997.
F.
Section IV of the Agreement is hereby amended by inserting the
following as subsections 4, 5 and 6:
4. Throughout the term of his employment with the Bank, Employee
shall be entitled to the use of the 1997 Lexus 300 presently
owned by Citizens Bank of Gwinnett. Upon Employee's termination
from the Bank for any reason, title to said vehicle shall be
transferred to Employee.
5. Throughout the term of Employee's employment with the Bank, the
Bank shall pay the dues associated with Employee's membership in
The Tournament Player's Club and The Atlanta Athletic Club. Upon
Employee's termination from the Bank for any reason, the Bank
shall no longer be responsible for said club dues.
6. Throughout the term of Employee's employment with the Bank and
for a period of one (1) year following Employee's termination
from the Bank for any reason, Employee shall be entitled to
health benefits of like kind to those provided by the Bank to its
similarly situated employees.
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G.
Section 1 of the Amendment (which addresses Section V of the
Agreement) is hereby amended by deleting the existing provision in its entirety
and substituting the following therefor:
If a "Change in Control" (as defined below) occurs during the term of
this Agreement, in addition to any compensation or benefit otherwise owed
to Employee pursuant to this Agreement, Employee shall become entitled to
the benefits described below under the following conditions:
1. If, within six (6) months following any Change in Control,
Employee is terminated from his present position for any reason,
then Employee shall become entitled to a single lump sum payment
in the amount of $409,500.00. Said lump sum payment shall be
payable on the day which is six (6) months from the effective
date of the Change in Control, or, if earlier, on the thirtieth
(30th) day following the date of Employee's termination of
employment.
2. If, within six (6) months from the effective date of a Change in
Control, Employee and the Bank have not entered into a new,
mutually agreeable employment agreement pursuant to paragraph 4
below, then Employee will be deemed to have resigned from
employment with the Bank and shall be entitled to a single lump
sum payment of $409,500.00. Said lump sum payment shall be
payable on the thirtieth (30th) day following six (6) months from
the effective date of a Change in Control.
3. If six (6) months from the effective date of the Change in
Control, Employee chooses to remain in his position with the
Bank, Employee and the Bank will enter into a new, mutually
agreeable employment agreement, such agreement to include
substantially the following terms:
(a) Employee to remain on the Board of Directors of the Bank;
(b) Employee's base salary to increase to $160,000.00 annually;
(c) Employee to receive an option to purchase 20,000 shares of
Premier Bancshares, Inc. common stock; and
(d) the term of such agreement to be three (3) years.
For the purposes of this Section V, the term "Change in Control" shall
refer to the acquisition of 25% or more of the voting securities of the
Bank after any transaction, by any Person, or Persons acting as a group
within the meaning of Section 13(d) of the Securities Exchange Act of 1934,
or to such acquisition of a percentage between 10% and 25% if the Board of
Directors of the Bank or the Georgia Department of Banking and Finance, the
FDIC, or the Federal Reserve Bank have made a determination that such
acquisition constitutes or will constitute control of the Bank. The term
"Person"
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refers to an individual, corporation, bank, bank holding company,
or other entity. Notwithstanding anything contained herein to the
contrary, a Change in Control shall not be deemed to occur upon the merger
of the Bank with and into Premier Bank.
H.
Section VI of the Agreement is hereby amended by deleting the existing
provision in its entirety and substituting the following therefor:
Employee acknowledges that he has performed services and/or will
perform services hereunder that directly affect the Bank's business
presently conducted (among other areas) within the limits of Gwinnett
County in the State of Georgia. Accordingly, the parties deem it necessary
to enter into the protective covenants set forth below, the terms and
conditions of which have been negotiated by and between the parties hereto.
1. For the period of Employee's employment with the Bank and for a
period of six (6) months following the termination of such
employment, for whatever reason, including termination following
a Change in Control, Employee covenants and agrees that he shall
not within the limits of Gwinnett County, Georgia, compete with
the Bank by performing banking services that require performance
of duties substantially identical to those performed on behalf of
the Bank by Employee, to wit, as a member of management,
supervisor, or executive employee for any bank, bank holding
company or other financial institution that is a competitor of
the Bank.
2. For the period of Employee's employment with the Bank and for a
period of one (1) year following the termination of such
employment, for whatever reason, including termination following
a Change in Control, Employee covenants and agrees as follows:
(a) Employee shall not, for himself or any other party, solicit,
directly or indirectly, any clients or prospective clients
of the Bank with whom he personally had business contact on
the Bank's behalf at any time during the last twenty-four
(24) months he worked at the Bank to do any business with
another company or business in competition with the Bank;
and
(b) Employee will not employ or attempt to employ or assist in
employing any employee of the Bank for the purpose of having
such employee perform services for any bank or other
business or organization in competition with the business of
the Bank as such exists on the termination date of
Employee's employment hereunder until such employee has
ceased to be employed by the Bank for a period of one (1)
year.
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3. Employee acknowledges that he possesses confidential information
of a special and unique nature and value affecting and relating
to the Bank's business, including, without limitation, the
identity of the customers, deposits, business records, other
trade secrets, and other similar confidential information
relating to the Bank (all the foregoing being hereinafter
collectively referred to as "Confidential Information").
Employee recognizes and acknowledges that all Confidential
Information is the exclusive property of the Bank, constitutes
trade secrets of the Bank, is material and confidential, and
greatly affects the goodwill and the effective and successful
conduct of the business of the Bank. Employee covenants and
agrees that he will not at any time during the term of his
employment under this Agreement, and for a period of one (1) year
from the end of such employment, directly or indirectly, divulge,
reveal, or communicate any Confidential Information to any
person, firm, corporation, or entity whatsoever, or use any
Confidential Information for his own benefit or for the benefit
of others. Employee further acknowledges that said Confidential
Information has material commercial value to the Bank so long as
it is not known by competitors of the Bank and that the Bank has
taken reasonable steps to keep all such information and trade
secrets confidential. In the event that any such Confidential
Information rises to the level of a trade secret under applicable
law, the duration and protections of this covenant shall equal
the maximum protections afforded by law.
4. Any and all documents, lists, papers, manuals, policies, forms,
computer information, and all other forms of tangible or stored
information (hereinafter "Documents") are the property of the
Bank. Upon termination of Employee's employment with the Bank,
for whatever reason, Employee shall return all Documents to the
Bank. Employee shall retain no copies or abstracts of any of the
Documents.
5. Employee acknowledges and agrees that the Bank would be
irreparably damaged in the event any of the provisions of this
Section are not performed by Employee in accordance with their
specific terms or are otherwise breached. Employee accordingly
agrees that the Bank shall be entitled to injunctive relief to
redress any breaches of this Agreement and to seek specific
performance of the terms and provisions hereof, in addition to
any other remedy to which such party may be entitled at law or in
equity.
If any provision of this Section VI shall be declared invalid or
unenforceable, the remainder of this Section VI will continue in full force
and effect so far as the intent of the parties can be carried out.
Notwithstanding the foregoing, if from any circumstances whatsoever,
fulfillment of any provision of this Section VI, at the time performance of
such provision shall be due, shall involve transcending the limited
validity presently prescribed by any applicable statute or other applicable
law, with regard to obligations of like character, then ipso facto, the
obligation to be fulfilled shall be reduced to the
-6-
limit of such validity and such obligation shall be fulfilled to the limit
of such validity. The parties acknowledge and agree that the terms of this
Section VI shall survive termination of the Agreement.
Except as provided herein, the provisions of the Agreement and the
Amendment shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the year and date first written above.
WITNESS: EMPLOYEE:
/s/ Xxxxxx X. Xxxxxx
-------------------------------- --------------------
Xxxxxx X. Xxxxxx
WITNESS: CITIZENS BANK OF GWINNETT
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------- --------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
