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EXHIBIT 10.4
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (the "AGREEMENT") is made as of March
__
2004, by and among UNITED COMMUNITY BANKS,
INC., a Georgia corporation (the
"COMPANY"; which shall include the
Company's wholly-owned owned bank subsidiary,
United Community Bank, a Georgia bank) and
HOWARD V. TURNER, JR., a resident of
the State of Georgia ("COVENANTOR").
WHEREAS, Fairbanco Holding Company, Inc., a Georgia corporation
("FAIRBANCO") is the parent company of 1st
Community Bank, a federal savings
bank ("BANK") engaging in a full range of
banking services in Fulton and Fayette
Counties, Georgia (the "BUSINESS") and
Covenantor is an executive officer of the
Bank; and
WHEREAS, the Company and Fairbanco have entered into that
certain
Agreement and Plan of Reorganization (the
"ACQUISITION AGREEMENT") dated as of
March 11, 2004, as amended, whereby the
Company has agreed to purchase Fairbanco
and Bank through the merger of Fairbanco
with and into Company for cash and
stock of the Company; and
WHEREAS, as a condition of the Acquisition Agreement, Covenantor
has
agreed to grant to the Company a covenant
not to compete with, solicit employees
from, or disparage the Company in
accordance with the terms of this Agreement;
NOW THEREFORE, in consideration of the premises and of the
mutual
covenants, agreements, representations,
warranties, benefits and obligations
contained in this Agreement, and of other
good and valuable consideration (the
receipt and sufficiency of which are hereby
acknowledged), the parties hereto
agree as follows:
1.
Covenantor hereby covenants with the Company that during the
period
from the Closing Date (as defined in the Acquisition Agreement) to
the
third (3rd) anniversary thereof, Covenantor shall not, upon the
termination of Covenantor's employment with the Company, for any
reason
whatsoever, except as otherwise specifically permitted herein
(the
"COVENANT"):
(a) directly
or indirectly, for Covenantor's own account, or as a
partner, member, employee, advisor or agent of any partnership
or joint venture, or as a trustee, officer, director,
shareholder, employee, advisor or agent of any corporation,
bank, savings association, mutual thrift, credit union, trust,
or other business or financial services organization or
entity, within Fulton, Fayette or Coweta Counties, Georgia or
a fifty (50) mile radius of any office of the Business located
in Fulton or Fayette Counties, Georgia: own, manage, join,
participate in, encourage, support, finance, be engaged in,
have an interest in, give financial assistance or advice to,
permit Covenantor's name to be used in connection with or be
concerned in any way in the ownership, management, operation
or control of, or be connected in any manner with any business
which is or may compete with the Company;
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(b) solicit or
assist anyone in soliciting in any way any employee
of the Company to resign or sever his or her employment or to
breach any employment agreement with the Company or affiliates
of the Company; or
(c) knowingly
or intentionally damage or destroy the goodwill and
esteem of the Company, the Business or the Company's
suppliers, employees, patrons, customers, and others who may
at any time have or have had relations with the Company.
2.
Notwithstanding any language to the contrary contained in this
Agreement, it shall be permissible for Covenantor to engage in
the
conduct prohibited by Section 1(a) if Company terminates
Covenantor's
employment with the Company without Cause (as described below) or
if
Covenantor terminates his or her employment with the Company
with
Adequate Justification (as described below).
(a) For
purposes of this Agreement "Cause" shall consist of any of
(i) the commission by Covenantor 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 Covenantor, which is intended to cause,
causes, or is reasonably likely to cause material harm to
