EXHIBIT 10.9
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “ Agreement ”)
is made as of the 5 th day of February, 2007 by and among United
Community Bank (the “ Bank ”), a state
bank organized under the laws of the State of Georgia; United
Community Banks, Inc., a bank holding company incorporated under
the laws of the State of Georgia (the “ Company
”) (collectively, the Bank and the Company are referred to
hereinafter as the “ Employer ”), and
Glenn S. White, a resident of the State of Georgia (the “
Executive ”).
RECITALS:
The
Executive is currently employed as Chief Executive Officer of First
Bank of the South, a state bank organized under the laws of the
State of Georgia (“ FBS ”) and the Chief
Executive Officer and President of Gwinnett Commercial Group, Inc.
a bank holding company incorporated under the laws of the State of
Georgia (“ GCG ”) pursuant to the terms
of that certain Amended and Restated Employment Agreement, dated
May 1, 2006, (the “ GCG Employment Agreement
”).
GCG and the Company have entered into that certain Agreement and
Plan of Reorganization (the “ Acquisition
Agreement ”), pursuant to which the Company has
agreed to acquire GCG and FBS by the merger of GCG with and into
the Company and the merger of FBS with and into the
Bank.
Executive possesses significant knowledge and information with
respect to the business of FBS and GCG, which knowledge and
information will be increased, developed and enhanced through his
continued employment by the Employer.
The parties hereto desire to enter into an agreement for the
Employer’s employment of Executive on the terms and
conditions contained herein.
In consideration of the above premises and the mutual agreements
hereinafter set forth, the parties hereby agree as
follows:
1.
Definitions . Whenever used in this Agreement, the following
terms and their variant forms shall have the meanings set forth
below:
1.1
“ Affiliate ” shall mean any business entity which controls
the Company, is controlled by or is under common control with the
Company.
1.2
“ Agreement ” shall mean this Agreement and any exhibits
incorporated herein together with any amendments hereto made in the
manner described in this Agreement.
1.3
“ Area ” shall mean the geographic area within a twenty
(20) mile radius of the Bank’s primary location at 2230
Riverside Parkway, Lawrenceville, Georgia 30043. It is the express
intent of the parties that the Area as defined herein is the area
where the Executive performs services on behalf of the Employer
under this Agreement.
1.4
“ Business of the Employer ”
shall mean the business conducted
by the Employer, which is the business of accepting deposits and
making loans.
1.5
“ Cause ” shall mean:
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1.5.1 With respect
to termination by the Employer:
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(a) A
material breach of the terms of this Agreement by the Executive,
including, without limitation, failure by the Executive to perform
his duties and responsibilities in the manner and to the extent
required under this Agreement, which remains uncured after the
expiration of thirty (30) days following the delivery of written
notice of such breach to the Executive by the Employer. Such notice
shall: (i) specifically identify the duties that the Board of
Directors of either the Company or the Bank believes the Executive
has failed to perform; and (ii) state the facts upon which such
Board of Directors made such determination;
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(b) Conduct
by the Executive that amounts to fraud, dishonesty or willful
misconduct in the performance of his duties and responsibilities
hereunder;
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(c) Conviction
of the Executive during the Term of this Agreement of any felony or
a crime involving breach of trust or moral turpitude;
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(d) Conduct
by the Executive that amounts to gross and willful insubordination
or gross negligence in the performance of his duties and
responsibilities hereunder; or
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(e) Conduct
by the Executive that results in a formal action instituted by
written order of any regulatory agency with authority or
jurisdiction over the Employer to remove the Executive from his
position as an officer or executive of the Employer.
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1.5.2 With respect
to termination by the Executive:
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(a) A
material diminution in the powers, responsibilities or duties of
the Executive hereunder; provided, however, that the
Executive’s continued employment for thirty (30) days
following any act or failure to act constituting Cause under this
subsection without delivery of written notice shall constitute
consent to, and a waiver of the Executive’s rights under this
subsection with respect to such act or failure to act;
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(b) A
material breach of the terms of this Agreement by the Employer,
which remains uncured after the expiration of thirty (30) days
following the delivery of written notice of such diminution or
breach to the Employer by the Executive; or
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(c) A requirement by the
Employer that the Executive’s services be rendered primarily
at a location more than twenty (20) miles from the primary business
location maintained by the Employer as of the Effective
Date.
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1.6
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“
Change of Control ” means any one of the following
events:
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(a) other than through a
merger, share exchange, combination or consolidation, which shall
be an event subject to (c) below, the acquisition by any person or
persons acting in concert of the then outstanding voting securities
of either the Bank or the Company, if, after the transaction, the
acquiring person (or persons) owns, controls or holds with power to
vote twenty-five percent (25%) or more of any class of voting
securities of either the Bank or the Company, as the case may be;
provided, however, that the current and future holdings of any
person who is a shareholder of the Company or the Bank as of the
Effective Date shall be disregarded in determining whether the
twenty-five percent (25%) threshold has been attained;
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(b)
within any twelve-month period (beginning on or after the Effective
Date) the persons who were directors of either the Bank or the
Company immediately before the beginning of such twelve-month
period (the “Incumbent Directors”) shall cease to
constitute at least a majority of such board of directors; provided
that any director who was not a director as of the beginning of
such twelve-month period shall be deemed to be an Incumbent
Director if that director were elected to such board of directors
by, or on the recommendation of or with the approval of, at least
two-thirds ( 2 / 3 )
of the directors who then qualified as Incumbent Directors; and
provided further that no director whose initial assumption of
office is in connection with an actual or threatened election
contest relating to the election of directors shall be deemed to be
an Incumbent Director;
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(c)
a reorganization, merger, share exchange, combination, or
consolidation, with respect to which persons who were the
stockholders of the Bank or the Company, as the case may be,
immediately prior to such reorganization, merger, share exchange
combination, or consolidation do not, immediately thereafter, own
more than fifty percent (50%) of the combined voting power entitled
to vote in the election of directors of the reorganized, merged,
combined or consolidated company’s then outstanding voting
securities; or
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(d)
the sale, transfer or assignment of all or substantially all
of the assets of the Company and its subsidiaries to any third
party.
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1.7 “
Code ” shall
mean the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
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1.8 “
Competing Business ” shall mean any FDIC-insured bank or Affiliate
thereof engaged in the Business of the Employer.
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1.9 “ Confidential
Information ” means data and information relating to
the Business of the Employer (which does not rise to the status of
a Trade Secret) which is or has been disclosed to the Executive or
of which the Executive became aware as a consequence of or through
the Executive’s relationship to the Employer and which has
value to the Employer and is not generally known to its
competitors. Confidential Information shall not include any data or
information that has been voluntarily disclosed to the public by
the Employer (except where such public disclosure has been made by
the Executive without authorization) or that has been independently
developed and disclosed by others, or that otherwise enters the
public domain through lawful means.
1.10 “ Disability ”
shall mean the inability of the
Executive to perform each of his material duties under this
Agreement for the duration of the then applicable elimination
period under the Employer’s long-term disability policy then
in effect as certified by a physician chosen by the Employer and
reasonably acceptable to the Executive.
1.11 “ Effective Date
” shall mean the
Closing Date (as defined in the Acquisition Agreement).
1.12 “ Employer Information
” means
Confidential Information and Trade Secrets.
1.13 “ Initial Term
” shall mean that
period of time commencing on the Effective Date and running until
the earlier of (a) the close of business on the last business day
immediately preceding the third anniversary of the Effective Date
or (b) any earlier termination of employment of the Executive under
this Agreement as provided for in Section 3.
1.14 “ Term ”
shall mean the Initial Term and all
subsequent renewal periods.
1.15 “ Trade Secrets
” means Employer
information including, but not limited to, technical or
nontechnical data, formulas, patterns, compilations, programs,
devices, methods, techniques, drawings, processes, financial data,
financial plans, product plans or lists of actual or potential
customers or suppliers which:
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(a)
derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its
disclosure or use; and
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(b)
is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
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2.
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2.1 Position .
As of the Effective Date, the
Executive shall be employed as Chief Executive Officer of the
“Gwinnett Community Bank” of the Bank and, subject to
the direction of the Board of Directors of the Bank or the Company
or its designee(s), shall perform and discharge well and faithfully
the duties which may be assigned to him from time to time by the
Bank or the Company in connection with the conduct of its
business.
2.2 Full-Time Status
. In addition to the
duties and responsibilities specifically assigned to the Executive
pursuant to Section 2.1 hereof, the Executive shall:
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(a) devote substantially all of
his time, energy and skill during regular business hours to the
performance of the duties of his employment (reasonable vacations
and reasonable absences due to illness excepted) and faithfully and
industriously perform such duties;
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(b) diligently follow and
implement all reasonable and lawful management policies and
decisions communicated to him by the Board of Directors of either
the Bank or the Company; and
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(c) timely prepare
and forward to the Board of Directors of either the Bank or the
Company all reports and accountings as may be requested of the
Executive.
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2.3 Permitted Activities
. The Executive shall not
during the Term be engaged (whether or not during normal business
hours) in any other business or professional activity, whether or
not such activity is pursued for gain, profit or other pecuniary
advantage; but this shall not be construed as preventing the
Executive:
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(a)
from investing his personal assets in businesses
which will not require any services on the part of the Executive in
their operation or affairs, in which his
participation is solely that of an investor and which are not
Competing Businesses; or
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(b) from
purchasing securities solely as a passive investor in any
corporation, the securities of which are regularly traded provided
that such purchase shall not result in his
collectively owning beneficially at any time five percent (5%) or
more of the equity securities of any Competing Business.
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2.4 Effective Date
. The Agreement shall be
effective as of the Effective Date. The Employer and Executive
intend that, upon the Effective Date, the GCG Employment Agreement
shall be superseded and shall have no further force or effect. If
the Closing (as defined in the Acquisition Agreement) fails to
occur, for any reason, this Agreement shall be null and
void.
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3.
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Term and
Termination .
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3.1
Term . This
Agreement shall remain in effect for the Term. Commencing with the
first day of the Initial Term, the Term shall renew each day such
that the Term remains a three-year term from day-to-day thereafter
unless any party gives written notice to the others of its or his
intent that the automatic renewals shall cease. In the event such
notice of non-renewal is properly given, this Agreement and the
Term shall expire on the third anniversary of the thirtieth day
following the date such written notice is received. In the event
such notice of non-renewal is properly given, this Agreement shall
terminate at the end of the remaining Term then in effect and the
Employer shall have no further obligation to the Executive except
for payment of amounts due and owing under Section 4 as of the last
day of the Term.
3.2
Termination . During the Term, the employment of the Executive
under this Agreement may be terminated only as follows:
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3.2.1 By the
Employer:
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(a) For Cause, upon written notice to
the Executive pursuant to Section 1.5.1 hereof, in which event the
Employer shall have no further obligation to the Executive except
for payment of any amounts due and owing under Section 4 on the
effective date of termination;
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(b) Without Cause at any time,
provided that the Employer shall give the Executive thirty (30)
days’ prior written notice of its intent to terminate, in
which event the Employer: (i) shall be required to continue to meet
its obligation to the Executive under Section 4.1 for thirty-six
(36) months following the effective date of termination; and (ii)
shall pay an amount equal to two (2) times the average annual bonus
paid to the Executive for the three most recently fiscal years,
including the fiscal year in which the Executive’s employment
is terminated if the bonus for that year has been paid, prior to
the Executive’s termination of employment, to be paid in
equal monthly installments over the thirty-six (36) month period in
clause (i); provided that, for purposes of this clause (ii), in
determining the annual bonus for any fiscal year during the
averaging period, for any fiscal year during the averaging period
in which no annual bonus was payable, $0.00 shall be used in the
averaging calculation for that fiscal year; and provided further
that if the Executive’s termination of employment occurs
before the annual bonus, if any, for the most recently completed
fiscal year is payable, then the averaging will be determined by
reference to the three most recently completed fiscal years before
that fiscal year; or
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(c) Upon the Disability of Executive
at any time, provided that the Employer shall give the Executive
thirty (30) days’ prior written notice of its intent to
terminate, in which event, the Employer shall be required to
continue to meet its obligation to the Executive under Section 4.1
for three (3) months following the termination or until
the Executive begins receiving payments under the
Employer’s long-term disability policy, whichever occurs
first.
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3.2.2 By the
Executive:
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(a) For Cause, upon written notice to
the Employer pursuant to Section 1.5.2 hereof in which event the
Employer shall be required to continue to meet its obligation to
the Executive under Section 4.1 for the lesser of: (i) thirty-six
(36) months following the effective date of termination; or (ii)
the remaining Term;
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(b) Without Cause, provided that the
Executive shall give the Employer thirty (30) days’ prior
written notice of his intent to terminate, in which event the
Employer shall have no further obligation to the Executive except
for payment of any amounts due and owing under Section 4 on the
effective date of termination; or
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(c)
Upon the Disability of Executive at any time, provided that the
Executive shall give the Employer thirty (30) days’ prior
written notice of its intent to terminate, in which event, the
Employer shall be required to continue to meet its obligation to
the Executive under Section 4.1 for three (3) months following the
termination or until the Executive begins receiving payments under
the Employer’s long-term disability policy, whichever occurs
first.
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3.2.3
At any time upon mutual, written agreement of the parties, in which
event the Employer shall have no further obligation to the
Executive except for payment of any amounts due and owing under
Section 4 on the effective date of termination.
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3.2.4
Upon expiration of the Term as provided in Section 3.1, in which
event the Employer shall have no further obligation to the
Executive except for payment of any amounts due and owing under
Section 4 on the last day of the Term then in effect.
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3.2.5
Notwithstanding anything in this Agreement to the contrary, the
Term shall end automatically upon the Executive’s death, in
which event the Employer shall have no further obligation to the
Executive’s estate except for payment of any amounts due and
owing under Section 4 on the effective date of
termination.
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3.3
Change of Control . If, within six (6) months following a Change of
Control, either the Executive terminates his employment with the
Employer under this Agreement for any reason or the Employer
involuntarily terminates the Executive’s employment under
this Agreement other than for Cause, the Executive, or in the event
of his subsequent death, his designated beneficiaries, as
identified to the Employer in writing in a form substantially
similar to Exhibit “A” attached hereto or, in the
absence of any such designation, his estate, as the case may be,
shall receive, as liquidated damages, in lieu of all other claims,
an amount equal to (a) three (3), multiplied by (b) the sum of: (i)
his Base Salary then in effect; (ii) an amount equal to the average
of the annual bonuses paid to the Executive for the three most
recently completed fiscal years prior to termination of
employment
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