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Exhibit 10.7
STATE OF GEORGIA
COUNTY OF FULTON
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE (the "Agreement") is made
and entered into by and between IRONSTONE BANK, a federal savings
association (the "Bank"); and JAMES F. POPE a resident of Fulton
County, Georgia ("Associate");
W I T N E S S E T H:
WHEREAS, Associate is employed by the Bank as a President with
the Bank’s IronStone Bank in Alpharetta, Fulton County,
Georgia; and
WHEREAS, Associate and the Bank have agreed that
Associate’s employment with the Bank will terminate effective
as of July 6, 2006 (the "Separation Date"), and the parties
have reached an arrangement as to such separation from employment
with the Bank, as evidenced in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants
and agreements herein contained, and for other good and valuable
considerations, the receipt and sufficiency of which hereby are
acknowledged, the Bank and Associate agree as follows:
1. SEPARATION . Associate’s employment with the
Bank shall terminate on the Separation Date, and Associate shall
have no further authority as an employee or agent of the Bank.
Associate specifically recognizes and agrees that this Agreement is
a full and complete resolution, settlement, and termination of any
rights or claims that Associate may have had, or alleges to have
had, to any further employment with the Bank, its subsidiaries, or
affiliates, including but not limited to its holding company, First
Citizens BancShares, Inc. ("BancShares"), and BancShares’
subsidiaries and affiliates, following the Separation Date.
2. SALARY AND PAID TIME OFF PAY . The Bank shall pay to
Associate Associate’s normal salary, less normal deductions
and withholdings, through the Separation Date, and agrees to
provide further special payments and consideration to Associate as
set forth below. The Bank also shall pay to Associate any accrued
but unused paid time off, less normal deductions and withholdings,
calculated as of the Separation Date.
3. SPECIAL SEPARATION PAYMENTS . On or after the
Separation Date or the Effective Date (as defined in Paragraph 7),
whichever occurs later, the Bank shall pay to Associate the amount
of Four Hundred Forty-Six Thousand Eight Hundred Eighteen and
40/100 Dollars ($446,818.40), less normal withholdings, for and in
consideration of the provisions of Paragraph 5 (Covenant of Good
Faith and Confidentiality), Paragraph 6 (Covenant of
Nonsolicitation and Nondisclosure), and the other terms and
conditions of this Agreement, and the amount of One Hundred
Ninety-One Thousand Four Hundred Ninety-Three and 60/100
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Dollars ($191,493.00), less normal withholdings,
for and in consideration of the provisions of Paragraph 7 (Release)
(collectively, the "Special Separation Payments").
4. TERMINATION/CONTINUATION OF CERTAIN RIGHTS AND
BENEFITS . Associate recognizes and agrees that payment of
Associate’s salary, payment of accrued but unused paid time
off, and payment of the Special Separation Payments, as described
in Paragraphs 2 and 3 above, are in full settlement of any
wages and benefits owed to Associate through the Separation Date
and that, except for Associate’s rights and benefits under
this Agreement, Associate’s vested rights in the Bank’s
benefit or retirement plans (if any), and Associate’s
eligibility to continue certain group insurance coverage pursuant
to Associate’s rights under the provisions of state law
and/or the Consolidated Omnibus Budget Reconciliation Act
("COBRA"), to the extent permitted by law, all of Associate’s
employment rights, wages, and benefits with the Bank, and all
subsidiaries and affiliates of the Bank, shall terminate and be
forfeited as of the Separation Date, including, without limitation,
Associate’s eligibility for further payment of any salary,
paid time off, personal leave, sick leave, severance pay, incentive
awards, bonuses, or any other amounts. Associate further recognizes
and agrees that payment of Associate’s salary, payment of
accrued but unused paid time off, and payment of the Special
Separation Payments by the Bank are not to be construed as an
admission of liability on the part of the Bank or its subsidiaries
or affiliates, and that the Bank has denied and denies any
violation of any law and any liability, and intends by such
payments simply to recognize Associate’s length of service
and Associate’s separation from employment, and to avoid the
time and costs of any legal proceedings.
5. COVENANT OF GOOD FAITH AND CONFIDENTIALITY . The Bank
and Associate acknowledge and agree that the Bank and its
subsidiaries and affiliates have a significant interest in
protecting their reputation and public trust, maintaining good
public relations with their customers, prospective customers, and
others in their market areas, and maintaining good relationships
with their current and prospective employees; that Associate has a
significant interest in protecting Associate’s personal and
professional reputation; and that it is in the Bank’s and
Associate’s mutual best interests to characterize their
employment relationship in a positive light, and to characterize
the expiration of Associate’s employment and the related
payments to be paid to Associate hereunder as having resulted from
an agreement made in good faith between Associate and the Bank. In
this connection, Associate shall not downgrade, speak adversely
about, or comment derogatorily about or in any other way make any
adverse or negative indications, actions, or comments about the
Bank, its subsidiaries or affiliates, its and their successors and
assigns, or the shareholders, directors, officers, employees,
associates, agents, or attorneys of said entities, and the Bank
shall instruct its management employees to refrain from
downgrading, speaking adversely about, or commenting derogatorily
about or in any
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other way making any adverse or negative
indications, actions, or comments about Associate; provided
, however , that the Bank may disclose information regarding
Associate’s performance as required by applicable federal or
state law or regulation.
All of the terms and conditions of this Agreement shall be held
in strictest confidence by the Bank and Associate and shall not be
disclosed by either party to any third party without the prior
written consent of the other party, except to Associate’s
immediate family and/or to legal or accounting professionals or
financial or regulatory institutions or as required by federal or
state laws or regulations, on a need to know basis for the
information required for a particular purpose only.
6. COVENANTS OF NONSOLICITATION AND NONDISCLOSURE .
(a) During the course of Associate’s employment with the
Bank, Associate has been given and has obtained various
confidential information concerning the Bank, BancShares, their
subsidiaries and affiliates, the shareholders, directors, officers,
associates, employees, and agents of said entities, and their
customers, prospective customers, services, trade secrets,
proprietary information, personnel information, and other
information concerning their business (collectively, the
"Information"), all of which constitute valuable assets and
privileged information of the Bank, which Information is
particularly sensitive due to the fiduciary responsibilities and
public trust inherent in the Bank’s business. The Bank and
Associate acknowledge that the Bank has invested, and shall
continue to invest, considerable amounts of time, effort, and
resources in developing such valuable assets and Information, and
that disclosure by Associate of such assets and Information to the
public or to any other person or entity, regardless of how
insignificant such assets or Information may seem, would cause
irreparable harm, damage, and loss to the Bank.
To protect the Bank from Associate’s use, disclosure, or
exploitation of customer contacts and the Information, Associate
agrees that Associate shall not do any of the following without the
Bank’s prior written consent (which may be withheld in the
Bank’s sole discretion):
(i) Covenant of Nonsolicitation . For a period of six
(6) months following the Separation Dat
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