<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998
Commission file number 1-12625
PREMIER BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-1793778
(State or other jurisdiction of (IRS employer identification no.)
incorporation or organization)
2180 ATLANTA PLAZA 31061
950 EAST PACES FERRY ROAD (zip code)
ATLANTA, GEORGIA
(address of principal
executive offices)
REGISTRANTS TELEPHONE NUMBER, INCLUDING AREA CODE 404-814-3090
INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL REPORTS REQUIRED
TO BE FILED BY SECTION 13 OR 15 (D) OF THE SECURITIES EXCHANGE ACT OF 1934
DURING THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIOD THAT THE REGISTRANT
WAS REQUIRED TO FILE SUCH REPORTS), AND (2) HAS BEEN SUBJECT TO SUCH FILING
REQUIREMENTS FOR THE PAST 90 DAYS.
Yes X No
--- ---
INDICATE THE NUMBER OF SHARES OUTSTANDING OF EACH OF THE ISSUER'S CLASSES OF
COMMON STOCK, AS OF THE LATEST PRACTICABLE DATE.
CLASS OUTSTANDING AT JULY 31, 1998
Common stock, $1.00 par value 17,048,329
<PAGE>
PREMIER BANCSHARES, INC. AND SUBSIDIARIES
FORM 10-Q
TABLE OF CONTENTS
Page No.
--------
Part I. Financial Information
Item 1. Consolidated Condensed Financial Statements.................... 3
Consolidated Condensed Statements of Condition (Unaudited)
as of June 30, 1998 and December 31, 1997
Consolidated Condensed Statements of Income (Unaudited)
for the Three Months Ended June 30, 1998 and 1997
Consolidated Condensed Statements of Income (Unaudited)
for the Six Months Ended June 30, 1998 and 1997
Consolidated Condensed Statements of Cash Flows (Unaudited)
for the Six Months Ended June 30, 1998 and 1997
Notes to Unaudited Consolidated Condensed Financial Statements
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations............................ 11
Item 3. Quantitative and Qualitative Disclosures About Market Risk..... 17
Part II. Other Information
Item 6. Exhibits and Reports on Form 8-K............................... 17
Signatures............................................................. 20
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
PREMIER BANCSHARES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CONDITION
(Unaudited)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1998 1997
-------- --------
(dollar amounts in thousands)
<S> <C> <C>
Assets
Cash and due from banks $ 34,719 $ 31,971
Interest-bearing deposits with other banks 3,961 6,477
Federal funds sold 35,877 42,352
Securities available for sale 122,993 124,133
Loans held for sale 49,003 59,363
Loans 644,509 571,011
Allowance for credit losses (9,648) (9,355)
--------- --------
Net loans 634,861 561,656
Premises and equipment, net 22,776 22,569
Goodwill and other intangibles 2,633 2,817
Other real estate owned 2,119 1,237
Other assets 17,125 12,946
--------- --------
Total assets $926,067 $865,521
========= ========
Liabilities
Deposits
Noninterest-bearing $113,782 $101,452
Interest-bearing 620,063 608,538
--------- --------
Total deposits 733,845 709,990
Federal funds purchased and securities sold
under repurchase agreements 18,122 25,923
Federal Home Loan Bank advances 1,875 2,875
Guaranteed preferred beneficial interests in the
Company's subordinated debentures (trust preferred 28,750 28,750
securities)
Other borrowings 49,514 12,135
Other liabilities 8,566 7,402
--------- --------
Total liabilities 840,672 787,075
Shareholders' Equity
Common stock, $1 par value; 60,000,000 shares authorized;
17,048,329 and 16,843,036 shares issued at June 30, 1998
and December 31, 1997, respectively 17,048
Capital surplus 35,919 35,095
Retained earnings 31,051 25,758
Unrealized gains on securities available-for-sale, net 1,377 750
--------- --------
Total shareholders' equity 85,395 78,446
--------- --------
Total liabilities and shareholders' equity $926,067 $865,521
========= ========
</TABLE>
See notes to consolidated condensed financial statements.
<PAGE>
PREMIER BANCSHARES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(Unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30,
1998 1997
----------- -----------
(dollar amounts in thousands,
except per share data)
<S> <C> <C>
Loans, including fees $17,336 $13,661
Investment securities:
Taxable 1,572 2,223
Tax-exempt 225 323
Federal funds sold 555 484
Other interest income 61 49
----------- -----------
Total interest income 19,749 16,740
INTEREST EXPENSE
Deposits 7,821 6,940
Other borrowings 1,712 748
----------- -----------
Total interest expense 9,533 7,688
Net interest income 10,216 9,052
Provision for credit losses 150 48
----------- -----------
Net interest income after provision for credit losses 10,066 9,004
NONINTEREST INCOME
Service charges on deposit accounts 668 760
Securities transactions, net 2 (9)
Mortgage banking activities 6,419 2,857
Other noninterest income 1,931 1,585
----------- -----------
Total noninterest income 9,020 5,193
NONINTEREST EXPENSE
Salaries and employee benefits 8,233 5,862
Net occupancy and equipment expense 1,663 1,262
Merger related expenses 360 346
Other noninterest expense 3,153 2,191
----------- -----------
Total noninterest expense 13,409 9,661
----------- -----------
Income before income taxes 5,677 4,536
Income taxes 1,537 1,528
----------- -----------
NET INCOME $ 4,140 $ 3,008
=========== ===========
(1)Per Share Information:
Basic earnings per share $ 0.24 $ 0.18
Weighted average shares outstanding - Basic 16,953,889 16,602,188
Earnings per share - Diluted $ 0.24 $0.18
Weighted average shares outstanding - Diluted 17,406,647 16,869,985
Dividends declared per share $ 0.08 $ 0.07
</TABLE>
See notes to consolidated condensed financial statements.
_______________
(1) After giving effect to stock splits payable to stockholders of record on
January 23, 1998 and March 6, 1997.
<PAGE>
PREMIER BANCSHARES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(Unaudited)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
1998 1997
------------ ----------
(dollar amounts in thousands
except per share data)
<S> <C> <C>
Loans, including fees $33,000 $25,578
Investment securities:
Taxable 3,027 4,546
Tax-exempt 506 654
Federal funds sold 1,277 1,370
Other interest income 61 84
------- -------
Total interest income 37,871 32,232
INTEREST EXPENSE
Deposits 15,604 13,747
Other borrowings 2,886 1,296
------- -------
Total interest expense 18,490 15,043
Net interest income 19,381 17,189
Provision for credit losses 150 184
------- -------
Net interest income after provision for credit losses 19,230 17,005
NONINTEREST INCOME
Service charges on deposit accounts 1,427 1,479
Securities transactions, net 9 (45)
Mortgage banking activities 12,286 5,376
Other noninterest income 3,207 2,466
------- -------
Total noninterest income 16,929 9,276
NONINTEREST EXPENSE
Salaries and employee benefits 15,598 11,189
Net occupancy and equipment expense 3,227 2,442
Merger related expenses 377 394
Other noninterest expense 5,871 4,551
------- -------
Total noninterest expense 25,073 18,576
------- -------
Income before income taxes 11,087 7,705
Income taxes 3,213 2,172
------- -------
NET INCOME $ 7,874 $ 5,533
======= =======
(1)Per Share Information:
Basic earnings per share $0.47 $0.33
Weighted average shares outstanding - Basic 16,916,511 16,602,188
Earnings per share - Diluted $0.45 $0.33
Weighted average shares outstanding - Diluted 17,330,063 16,819,630
Dividends $0.16 $0.11
</TABLE>
See notes to consolidated condensed financial statements.
____________________
(1) After giving effect to stock splits payable to stockholders of record on
January 23, 1998 and March 6, 1997.
<PAGE>
PREMIER BANCSHARES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
1998 1997
-------- --------
(dollar amounts in thousands)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 7,874 $ 5,533
Adjustments to reconcile net earnings to net cash provided by
operating activities:
Provision for credit losses 150 184
Depreciation expense 1,341 922
Amortization and accretion, net 212 263
Gain on sale of premises and equipment (560) --
Gain on sale of branch (657) --
Gain on sale of subsidiary -- (757)
Gain on sale of securities (8) (45)
Gain on sale of mortgage loans (12,126) (5,376)
Net originations of mortgage loans 22,486 (10,549)
Changes in other assets and liabilities
Increase in other assets (5,063) (2,582)
Increase (decrease) increase in other liabilities 882 (97)
-------- --------
Net cash used in operating activities 14,531 (12,504)
CASH FLOWS FROM INVESTING ACTIVITIES
Decrease (increase) in interest bearing deposits 2,516 (6,173)
Proceeds from maturities and paydowns of investment securities available-for-sale
Proceeds from sales of investment securities available-for-sale
Purchases of investment securities (31,752) (25,268)
available-for-sale
Net increase in loans (73,784) (89,154)
Decrease in federal funds sold, net 6,475 33,049
Additions to premises and equipment (2,422) (2,014)
Proceeds from sales of premises and equipment 783 --
Sale of bank branch (7,122) --
Net cash used in investing activities (71,525) (50,491)
CASH FLOWS FROM FINANCING ACTIVITIES
Net increase in deposits 32,716 39,671
Net increase in short term borrowings 28,578 26,803
Cash dividends paid (2,581) (1,176)
Purchase of treasury stock -- (348)
Proceeds from exercise of stock options 1,029 215
-------- --------
Net cash provided by financing activities 59,742 65,165
-------- --------
Net increase in cash and cash equivalents 2,748 2,170
Cash and cash equivalents, beginning of period 31,971 29,095
-------- --------
Cash and cash equivalents, end of period $ 34,71 $ 31,265
======== ========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest 18,252 14,849
======== ========
Income taxes 4,800 1,385
======== ========
</TABLE>
See notes to consolidated condensed financial statements.
<PAGE>
PREMIER BANCSHARES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 1998
(UNAUDITED)
Note 1. BASIS OF PRESENTATION
The accompanying consolidated condensed financial information of Premier
Bancshares, Inc. and Subsidiaries (the "Company") is unaudited; however, such
information reflects all adjustments (consisting solely of normal recurring
adjustments) which are, in the opinion of management, necessary for a fair
statement of results for the interim periods. The results of operations for the
three-month and six month periods ended June 30, 1998 are not necessarily
indicative of the results to be expected for the full year. These statements
should be read in conjunction with the consolidated financial statements and
notes thereto included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1997.
Note 2. BUSINESS COMBINATIONS
Completed Combinations.
On June 9, 1998, the Company completed a business combination with Lanier Bank &
Trust Company ("Lanier") by exchanging 1,625,990 shares of the Company's common
stock for all of the outstanding common stock of Lanier. The combination was
accounted for as a pooling of interests and, accordingly, the financial
statements reflect the combination as if it took place on January 1, 1998. All
prior period consolidated financial statements have been restated to include the
results of Lanier.
On December 12, 1997, the Company completed a business combination with Citizens
Gwinnett Bankshares, Inc. ("Citizens") by exchanging 2,066,834 shares of the
Company's common stock for all of the outstanding common stock of Citizens. The
combination was accounted for as a pooling of interests and, accordingly, the
financial statements reflect the combination as if it took place on January 1,
1997, and all prior period consolidated financial statements have been restated
to include the results of Citizens.
On June 23, 1997, the Company completed a business combination with Central and
Southern Holding Company ("Central and Southern") by exchanging 3,653,523 shares
of the Company's common stock for all of the outstanding common stock of Central
and Southern. The combination was accounted for as a pooling of interests and,
accordingly, the financial statements reflect the combination as if it took
place on January 1, 1997, and all prior period consolidated financial statements
have been restated to include the results of Central and Southern.
The following table illustrates the Company's net interest income and net income
on a consolidated basis for periods prior to the business combinations discussed
above:
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
1998 1997
------- -------
(dollars in thousands)
<S> <C> <C>
Net interest income:
Premier Bancshares, Inc., exclusive of pre-acquisition amounts $17,894 $ 6,967
Lanier (1) 1,487 1,457
Citizens (2) - 4,066
Central and Southern (3) - 4,699
------- -------
Total $19,381 $17,189
======= =======
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
1998 1997
------- -------
(dollars in thousands)
<S> <C> <C>
Net income:
Premier Bancshares, Inc., exclusive of pre-acquisition amounts $ 7,533 $ 2,573
Lanier (1) 341 352
Citizens (2) - 1,093
Central and Southern (3) - 1,515
------- -------
Total $ 7,874 $ 5,533
======= =======
</TABLE>
______________________
(1) 1998 amounts reflect the results of operations from January 1, 1998 through
the effective merger date of June 9, 1998. Results of operations for the
period from June 10, 1998 through June 30, 1998 are included in Premier
Bancshares, Inc. amounts.
(2) 1997 amounts reflect the results of operations from January 1, 1997 through
the effective merger date of December 12, 1997. Results of operations for
the period from December 13, 1997 through December 31, 1997 are included in
Premier Bancshares, Inc. amounts.
(3) 1997 amounts reflect the results of January 1, 1997 through the effective
merger date of June 23, 1997. Results of operations for the period from
June 24, 1997 through December 31, 1997 are included in Premier Bancshares,
Inc. amounts.
Effective October 17, 1997, the Company acquired Traditional Mortgage
Corporation ("Traditional") for 114,598 shares of the Company's common stock at
a fair market value of $1,833,000. Traditional originates residential mortgage
loans primarily for sale to independent third party investors. Traditional was
merged with Premier Lending Corporation. The acquisition was accounted for as a
purchase and the results of operations for Traditional from the date of
acquisition are included in the consolidated financial statements. The purchase
price was allocated to the acquired assets and liabilities based on the fair
value of those assets and liabilities as determined by the Company. The excess
of the total acquisition cost over the fair value of the assets and liabilities
acquired is being amortized on a straight-line basis over a period of fifteen
years.
Subsequent and Pending Combinations
On July 1, 1998, the Company completed a business combination with Button
Gwinnett Financial Corporation ("Button Gwinnett") by exchanging 5,571,778
shares of the Company's common stock for all of the outstanding common stock of
Button Gwinnett. The combination will be accounted for as a pooling of
interests. The combination with Button Gwinnett will increase total assets by
approximately $220 million.
On July 2, 1998, the Company completed a business combination with The Bank
Holding Company ("BHC") by exchanging 2,170,447 shares of the Company's common
stock and 40,770 shares of the Company's preferred stock for all of the
outstanding common and preferred stock of BHC. The combination will be
accounted for as a pooling of interests. The combination with BHC will increase
total assets by approximately $138 million.
On July 9, 1998, the Company announced that a definitive merger agreement had
been entered into with Frederica Bank & Trust ("Frederica"). As of December 31,
1997, Frederica had total assets of $66,166,000 and for the year ended December
31, 1997, had revenue and net income of $5,420,000 and $660,000, respectively.
The merger is expected to be accounted for as a pooling of interests.
Note 3. SHAREHOLDERS' EQUITY AND DIVIDENDS PER SHARE
The Company declared a three-for-two stock split on January 8, 1998 for
stockholders of record as of January 23, 1998. All per share data has been
restated to reflect the split.
On February 24, 1997, the Company declared a 1.8055 stock split for stockholders
of record as of March 6, 1997. All per share data has been restated to reflect
the split.
<PAGE>
On June 23, 1998, the Company declared dividends of $0.08 per share payable to
shareholders of record as of June 30, 1998. During the quarter ended June 30,
1997, the Company declared cash dividends of $0.07 per share (restated for stock
splits and pooling of interests).
Note 4. CURRENT ACCOUNTING DEVELOPMENTS
On January 1, 1998, the Company adopted the provisions of Financial Accounting
Standards Board ("FASB") Statement No. 125, "Accounting for Transfers and
Servicing of Financial Assets and Extinguishments of Liabilities," ("Statement
125"), relating to repurchase agreements, securities lending and other similar
transactions and pledged collateral, which had been delayed until after December
31, 1997 by FASB Statement No. 127, "Deferral of the Effective Date of Certain
Provisions of FASB Statement No. 125, an amendment of FASB Statement No. 125,"
("Statement 127"). Statement 125 provides accounting and reporting standards for
transfers and servicing of financial assets and extinguishment of liabilities
based on a consistent application of a "financial-components approach" that
focuses on control. Under that approach, after a transfer of financial assets,
an entity recognizes the financial and servicing assets it controls and the
liabilities it has incurred, derecognizes financial assets when control has been
surrendered and derecognizes liabilities when extinguished. Statement 125
provides standards for consistently distinguishing transfers of financial assets
that are sales from transfers that are secured borrowings. The adoption of the
additional provisions of Statement 125 as amended by Statement 127 resulted in
no material impact on the Company's financial condition or results of
operations.
As of January 1, 1998, the Company adopted FASB Statement No. 130, "Reporting
Comprehensive Income" ("Statement 130"). Statement 130 establishes new rules
for the reporting and display of comprehensive income and its components;
however, the adoption of this Statement had no impact on the Company's net
income or shareholders' equity. Statement 130 requires unrealized gains or
losses on the Company's available-for-sale securities, which prior to adoption
were reported separately in shareholders' equity, to be included in other
comprehensive income. Prior year financial statements have been reclassified to
conform to the requirements of Statement 130. During the three and six months
ended June 30, 1998, total comprehensive income totaled $4,174,000 and
$8,501,000, respectively. During the three and six months ended June 30, 1997,
total comprehensive income totaled $2,766,000 and $5,795,000, respectively.
Effective January 1, 1998, the Company adopted FASB Statement No. 131,
"Disclosures about Segments of an Enterprise and Related Information"
("Statement 131"). Statement 131 superseded FASB Statement No. 14, "Financial
Reporting for Segments of a Business Enterprise". Statement 131 establishes
standards for the way that public business enterprises report information about
operating segments in annual financial statements and requires that those
enterprises report selected information about operating segments in interim
financial reports. Statement 131 also establishes standards for related
disclosures about products and services, geographic areas, and major customers.
The adoption of Statement 131 did not affect results of operations or financial
position.
Note 5. EARNINGS PER SHARE
Earnings per share for periods prior to 1998 have been restated from amounts
previously reported to reflect the effect of business combinations accounted for
as poolings of interests. For the quarter ended June 30, 1997, net income per
common share and net income per common share, diluted, have been adjusted
$(0.01). For the six months ended June 30, 1997, net income per common share
and net income per common share, diluted, have been adjusted $(0.02).
<PAGE>
The following tables set forth the computation of basic and diluted earnings per
share:
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30,
1998 1997
------- -------
(In thousands, except per share data)
<S> <C> <C>
NUMERATOR:
Net income $ 4,140 $ 3,008
======= =======
DENOMINATOR:
Denominator for basic earnings per share - weighted
average shares 16,954 16,602
Effect of dilutive securities - stock options 453 268
------- -------
Denominator for diluted earnings per share - adjusted
weighted average shares and assumed conversions 17,407 16,870
======= =======
Net income per share of common stock $ 0.24 $ 0.18
------- -------
Net income per share of common stock - diluted $ 0.24 $ 0.18
======= =======
SIX MONTHS ENDED JUNE 30,
1998 1997
------- -------
(In thousands, except per share data)
NUMERATOR:
Net income $ 7,874 $ 5,533
======= =======
DENOMINATOR:
Denominator for basic earnings per share - weighted
average shares 16,917 16,602
Effect of dilutive securities - stock options 413 218
------- -------
Denominator for diluted earnings per share - adjusted
weighted average shares and assumed conversions 17,330 16,820
======= =======
Net income per share of common stock $ 0.47 $ 0.33
------- -------
Net income per share of common stock - diluted $ 0.45 $ 0.33
======= =======
</TABLE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion should be read in conjunction with the Consolidated
Condensed Financial Statements, including the footnotes, and is qualified in its
entirety by the foregoing and other more detailed financial information
appearing elsewhere herein. Historical results of operations and the percentage
relationships among any amounts included in the Consolidated Condensed
Statements of Income, and any trends which may appear to be inferable therefrom,
should not be taken as being necessarily indicative of trends in operations or
results of operations for any future periods.
Comments in this Management's Discussion and Analysis regarding the Company's
business which are not historical facts are forward-looking statements that
involve risks and uncertainties. Among these risks are that the Company is in a
highly competitive business and is pursuing a growth strategy that relies in
part on the completion of acquisitions of bank holding companies and other
<PAGE>
financial institutions. There can be no assurance that in its highly
competitive business environment, the Company will successfully implement its
growth strategy.
FINANCIAL CONDITION
At the end of the second quarter of 1998, total assets increased $60,546,000 or
7.0% from December 31, 1997. Total loans (excluding mortgage loans held for
sale), increased $73,498,000 or 12.9% from December 31, 1997 to June 30, 1998.
The loan increases are primarily attributable to increased demand for loans in
the markets that the Company serves. Mortgage loans held for sale decreased
$10,360,000 or 17.5% during the same period. Federal funds sold decreased
$6,475,000 or 15.3% from December 31, 1997 to June 30, 1998. Securities
available-for-sale decreased $1,140,000 or 0.9% during the same period due to
maturities and calls. The proceeds from securities sold or maturing were used to
partially fund the increase in loans.
Other borrowings increased by $37,379,000 or 308.0% as the result of the Company
funding its mortgage banking operation with a warehouse line of credit from a
regional bank. Total liabilities increased by $53,597,000 or 6.8% from December
31, 1997 to June 30, 1998. Noninterest-bearing deposits increased by $12,330,000
or 12.2% and interest-bearing deposits increased by $11,525,000 or 1.9% during
the same period as the Company has increased its market area through the
acquisition of Central and Southern Holding Company in June 1997, Citizens
Gwinnett Bankshares in December 1997, and Lanier Bank and Trust in June 1998.
RESULTS OF OPERATIONS
For the three-month period ended June 30, 1998 the Company recorded net income
of $4,140,000 as compared to $3,008,000 for the same period in 1997. This
$1,132,000 or 37.6% increase is due primarily to the following:
Net interest income increased $1,164,000.
Provision for credit losses increased $102,000.
Total noninterest income increased $3,827,000.
Total noninterest expense increased $3,748,000.
Income tax expense increased $9,000.
The reasons for these changes are discussed more fully below.
For the six-month period ended June 30, 1998 the Company recorded net income of
$7,874,000 as compared to $5,533,000 for the same period in 1997. This
$2,341,000 or 42.3% increase is due primarily to the following:
Net interest income increased $2,192,000.
Provision for credit losses decreased $34,000.
Total noninterest income increased $7,653,000.
Total noninterest expense increased $6,497,000.
Income tax expense increased $1,041,000.
The reasons for these changes are discussed more fully below.
Net Interest Income
- -------------------
Net interest income increased $1,164,000 or 12.9% for the three month period
ended June 30, 1998 compared to same period in 1997, due to an increase in
average earning assets. Average earning assets increased by approximately $149
million while average interest-bearing liabilities increased by approximately
$119 million. Yields on earning assets decreased by 18 basis points and costs of
interest-bearing liabilities increased by 19 basis points. The net interest
margin declined to 4.76% in the second quarter of 1998 from 5.06% in the
comparable period of 1997.
Net interest income increased $2,192,000 or 12.8% for the six month period ended
June 30, 1998 compared to same period in 1997, due to an increase in average
earning assets. Average earning assets increased by approximately $135 million
while average interest-bearing liabilities increased by approximately $131
<PAGE>
million. Yields on earning assets decreased by 13 basis points and costs of
interest-bearing liabilities increased by 20 basis points. The net interest
margin declined to 4.67% in the second quarter of 1998 from 4.95% in the
comparable period of 1997.
Provision for Credit Losses
- ---------------------------
The Company recorded a provision for credit losses of $150,000 for the second
quarter of 1998. The Company had net recoveries during the quarter of $135,000
related to prior period charge offs, the majority of recoveries being sales
finance loans. Management anticipates the net recovery trend will continue with
continued recoveries of prior period charge offs. Management will monitor and
adjust the level of the allowance for credit losses in relation to this net
recovery stream, as well as the overall level of the allowance for credit losses
to loans outstanding and management's assessment of credit losses inherent in
the loan portfolio.
<PAGE>
ASSET QUALITY
<TABLE>
<CAPTION>
JUNE 30, 1998 DECEMBER 31,
------------- ------------
(dollars in thousands)
<S> <C> <C> <C> <C>
Loans past due 90 days or more and
Nonaccrual loans 3,203 2,875 328 11%
------ ------ ----- ---
Total nonperforming loans 3,226 3,502 (276) (8)%
Other real estate owned 2,142 1,237 905 73%
------ ------ ----- ---
Total nonperforming assets $5,368 $4,739 $ 630 13%
====== ====== ===== ===
Nonperforming loans/Total loans 0.50% 0.61%
Nonperforming assets/Total assets 0.58% 0.55%
</TABLE>
The table above illustrates the changes in the level of nonperforming assets
from December 31, 1997 to June 30, 1998. The level of nonperforming assets at
June 30, 1998 increased slightly from December 31, 1997. Management anticipates
the levels of nonperforming loans and assets to remain at relatively low levels.
Noninterest Income
- ------------------
The Company's main sources of noninterest income are from mortgage banking
activities and from service charges on deposit accounts. Noninterest income
increased substantially in the second quarter of 1998 compared to the same
period in 1997. Income from mortgage banking activities increased $3,562,000 in
the three months ended June 30, 1998 compared to the same period in 1997 due to
the increased volume of mortgage loan originations in part due to the
acquisition of Traditional Mortgage Company in October 1997 and continued strong
housing demand in the Company's markets. Other operating income increased
$445,000 primarily due to the sale of a subsidiary branch banking location.
Noninterest income increased substantially for the six months ended June 30,
1998 compared to the same period in 1997. Total noninterest income increased
$7,653,000, or 82.5% for the six months. Income from mortgage banking activities
increased $6,910,000, or 128.5% in the six months compared to the same period in
1997.
Noninterest Expense
- -------------------
Noninterest expense increased substantially for the three month and six month
periods ended June 30, 1998 compared to the same periods in 1997. Salaries and
employee benefits expense increased primarily due to increased commissions on
mortgage loan originations. Occupancy expense also increased due to the
Company's opening of two new branches of a subsidiary bank during the third
quarter of 1997.
Income Tax Expense
- ------------------
Income tax expense increased slightly for the three months ended June 30, 1998
compared to the same period in 1997. The effective tax rate for second quarter
1998 was 27% versus 34% for the same period in 1997. Second quarter 1997
accrued taxes were reduced by the utilization of tax credits and prior period
net operating loss carryforwards.
Income tax expense increased $1,041,000, or 47.9% for the six months ended June
30, 1998 compared to the same period in 1997. The effective tax rate for the
six months was 29% vs. 28% for the same period in 1997.
<PAGE>
INTEREST RATE SENSITIVITY MANAGEMENT
Interest rates play a major part in the net interest income of a financial
institution. The sensitivity to rate changes is known as "interest rate risk."
The repricing of interest-earning assets and interest-bearing liabilities can
influence the changes in net interest income. As part of the Company's
asset/liability management program, the timing of repricing assets and
liabilities is referred to as Gap management. It is the policy of the Company
to maintain a Gap ratio in the one-year time horizon of .80 to 1.20. The Gap
analysis indicates that the Company is somewhat asset sensitive in relation to
changes in market interest rates.
The Company uses simulation analysis to monitor changes in net interest income
due to changes in market interest rates. The simulation of rising, declining,
and a most likely interest rate scenario allows management to monitor and adjust
interest rate sensitivity to minimize the impact of market interest rate swings.
Each month management updates all available data concerning cash flows of assets
and liabilities, changes in market interest rates, and expectations as to new
volumes of loans.
LIQUIDITY
Liquidity is an important factor in the financial condition of the Company and
affects the Company's ability to meet the borrowing needs and deposit withdrawal
requirements of its customers. Assets, consisting principally of loans and
investment securities, are funded by customer deposits, purchased funds, and
borrowed funds.
The investment portfolio is one of the Company's primary sources of liquidity.
Maturities of securities provide a constant flow of funds which are available
for cash needs. Investment securities that contractually mature within one year
total $13 million. However, mortgage-backed securities and securities with call
provisions create cash flows earlier than the contractual maturities. Estimates
of prepayments on mortgage-backed securities and call provisions on other
securities increase the forecasted cash flow from the investment portfolio
within one year to approximately $17 million. Maturities in the loan portfolio
also provide a steady flow of funds. The Company's liquidity also continues to
be enhanced by an increasing core deposit base. Deposits have increased $24
million since year ended December 31, 1997, or approximately 3.4%. At June 30,
1998, the loan-to-deposit (excluding loans held for sale) ratio was 88%.
Effective April 15, 1998, the Company and Premier Lending Corporation, a wholly
owned subsidiary, entered into a $90 million Mortgage Warehouse Line of Credit
Loan and Security Agreement with SunTrust Bank, Central Florida, National
Association, individually and as agent for Colonial Bank, CoreStates Bank, N.A.
and SouthTrust Bank, National Association. The proceeds of the line of credit
will be used to provide interim funds for the funding of eligible residential
mortgage loans prior to resale thereof to investors pre-approved by the agent.
Advances of the proceeds of the line of credit will be made from time to time by
the lenders, on a pro rata basis in accordance with their respective percentage
interest, upon written request of the Company and/or Premier Lending
Corporation's compliance with such advance conditions as may be established from
time to time by the agent. The term of the line of credit is one year. The
line of credit is secured by an assignment of and a grant of a first priority
security interest in the subject mortgage loans.
SHAREHOLDERS' EQUITY
The Company maintains a ratio of shareholders' equity to total assets that is
adequate relative to industry standards. The Company's ratio of shareholders'
equity to total assets was 9.2% at June 30, 1998, compared to 9.1% at December
31, 1997.
The Company and its subsidiary banks are required to comply with capital
adequacy standards established by the Federal Reserve and the FDIC. Currently,
there are two basic measures of capital adequacy: risk-based measure and
leverage measure.
The risk-based capital standards are designed to make regulatory capital
requirements more sensitive to differences in risk profile among banks and bank
holding companies, to account for off-balance sheet exposure and to enhance the
value of holding liquid assets. The resulting capital ratios represent capital
as a percentage of total risk-weighted assets and off-balance sheet items.
Recently the Federal Reserve and the FDIC proposed that interest rate risk be
considered in computing risk-based capital ratios.
<PAGE>
The minimum standard for the ratio of total capital to risk-weighted assets is
8%. At least 50% of that capital level must consist of common equity, undivided
profits and noncumulative perpetual preferred stock, less goodwill and certain
other intangibles ("Tier I capital"). The remainder ("Tier II capital") may
consist of a limited amount of other preferred stock, mandatory convertible
securities, subordinated debt and a limited amount of the allowance for credit
losses. The sum of Tier I capital and Tier II capital is "total risk-based
capital."
The Federal Reserve and the FDIC also adopted regulations which supplement the
risk-based guidelines to include a minimum leverage ratio of 3% of Tier I
capital to total assets less goodwill (the "leverage ratio"). Depending upon
the risk profile of the institution and other factors, the regulatory agencies
may require a leverage 1% to 2% higher than the minimum 3% level.
CAPITAL LEVELS
<TABLE>
<CAPTION>
AT JUNE 30, 1998
----------------
<S> <C>
Tier I Capital Leverage Ratio 11.23%
Tier I Risk-based Capital Ratio 14.79%
Tier II Risk-based Capital Ratio 1.47%
-----
Total Risk-based Capital Ratio 16.26%
=====
</TABLE>
YEAR 2000
Like many financial institutions, the Company relies upon computers for the
daily conduct of its business and for data processing generally. There is
concern among industry experts that commencing on January 1, 2000, computers
will be unable to "read" the new year and there may be widespread computer
malfunctions. The Company is taking steps to prepare both its information
technology systems and its other equipment and machinery for the Year 2000 date
change. The Company expects to substantially complete these efforts at the end
of calendar year 1998, with testing to continue through 1999. Although the
Company does not believe that it will incur any material costs or experience
material disruptions in its business associated with preparing its internal
systems for the Year 2000, there can be no assurances that the Company will not
experience unanticipated negative consequences and/or material costs caused by
undetected errors or defects in the technology used in its internal systems.
The Company is currently unable to estimate the most reasonably likely worst-
case effects of the Year 2000 and does not currently have a contingency plan in
place for any such unanticipated negative effects. The Company intends to
analyze the worst-case scenarios and the need for such contingency planning once
the measures described above have been completed and testing of the Company's
systems for Year 2000 compliance has begun.
The Company is currently unable to estimate whether it is exposed to significant
risk of being adversely affected by the Year 2000 noncompliance by third
parties. During the third quarter of 1998, the Company intends to begin
contacting third parties with which it has material relationships, including its
material customers, to attempt to determine their preparedness with respect to
Year 2000 issues and to analyze the risks to the Company in the event any such
third parties experience significant business interruptions as a result of Year
2000 noncompliance. The Company expects to complete this review and analysis
and to determine the need for contingency planning in this regard by March 31,
1999.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company's primary market risk exposure is interest rate risk and, to a
lesser extent, credit risk and liquidity risk. The Company has little or no
risk related to trading accounts, commodities or foreign exchange. Interest
rate risk is the exposure of a banking organization's financial condition and
earnings ability to adverse movements in interest rates. The Company has
analyzed the assumed market value risk and earnings risk inherent in its
interest rate sensitive instruments related to interest-rate swings of 200 basis
points, both above and below current levels (rate shock analysis). Earnings and
fair value estimates are subjective in nature and involve uncertainties and
matters of significant judgment and, therefore, cannot be determined with
precision. There have been no significant changes in the Company's market risk
exposure since December 31, 1997.
<PAGE>
PART II.OTHER INFORMATION
ITEM 4.SUBMISSIONS OF MATTERS TO A VOTE OF SECURITIES HOLDERS
On June 30, 1998, the Company held its annual shareholders' meeting at which the
shareholders approved the following proposals:
1. The proposal to approve the Agreement and Plan of Reorganization entered into
with Button Gwinnett Financial Corporation dated February 5, 1998, as
amended. This proposal was approved with 9,441,716 shares or 61.22% voting
for the proposal, 11,706 or .08% voting against the proposal and, 34,762 or
.23% abstaining from the proposal. There were 1,951,906 or 12.65% broker non-
votes.
2. The proposal to elect the following directors of Premier to serve until the
next annual meeting: N. Michael Anderson, George S. Carpenter, Jr., Donald N.
Ellis, William M. Evans, Jr., John H. Ferguson, D.D.S., Robert E. Flourney
III, A.F. Gandy, Robin R. Howell, C. Steve McQuaig, M.D., Darrell D. Pittard,
James E. Freeman, Billy H. Martin, James L. Coxwell, Sr., Robert C. Oliver
and Thomas E. Owen, Jr. This proposal was approved with 11,322,388 shares or
73.42% voting for the proposal, and 117,702 or .76% withholding authority.
3. The proposal to ratify the selection of Ernst & Young LLP as Premier's
independent public accountants for the year ending December 31, 1998. This
proposal was approved with 11,384,029 shares or 73.82% voting for the
proposal, 22,206 or .14% voting against the proposal and 33,855 or .22%
abstaining from the proposal.
4. The proposal to amend Premier's Articles of Incorporation to increase the
number of authorized shares of Premier Common Stock from 20,000,000 to
60,000,000. This proposal was approved with 11,132,836 shares or 72.19%
voting for the proposal, 205,623 or 1.33% voting against the proposal and
29,054 or .19% abstaining from the proposal. There were 72,577 broker non-
votes with regard to this proposal.
5. The proposal to amend the Premier Bancshares, Inc. 1997 Stock Option Plan to
increase the number of shares of common stock available for grant thereunder
from 1,125,000 to 3,000,000 shares. This proposal was approved with 8,734,574
shares or 56.64% voting for the proposal, 689,191 or 4.47% voting against the
proposal and 64,419 or .42% abstaining from the proposal. There were
1,951,906 broker non-votes in connection with this proposal.
6. The proposal to approve the Premier Bancshares, Inc. Employee Stock Purchase
Plan. This proposal was approved with 8,967,370 shares or 58.15% voting for
the proposal, 435,588 or 2.83% against the proposal and 85,226 or .55%
abstaining from the proposal. There were 1,951,906 or 12.6% broker non-votes
with regard to this proposal.
Item 6.Exhibits and Reports on Form 8-K
a. Exhibits
EXHIBIT
NUMBER EXHIBIT
- ------ ---------
10.1 Premier Bancshares, Inc. 1997 Stock Option Plan (as amended and
restated effective July 1, 1998) (Incorporated by reference as
Exhibit 99.1 to Premier's Form S-8 filed on July 21, 1998).
10.2 Employment Agreement dated July 1, 1998 by and among Premier,
Premier Bank, The Bank of Gwinnett County and Glenn S. White dated
July 1, 1998.
10.3 Employment Agreement dated July 1, 1998 by and among Premier Bank,
The Bank of Gwinnett County and Andrew R. Pourchier.
10.4 Severance Pay Agreement dated as of July 1, 1998, by and among
Premier Bank, The Bank of Gwinnett County and John C. Pentecost.
<PAGE>
10.5 Severance Pay Agreement dated as of July 1, 1998, by and among
Premier Bank, The Bank of Gwinnett County and Linda S. George.
10.6 Severance Pay Agreement dated as of July 1, 1998, by and among
Premier Bank, The Bank of Gwinnett County and William P. Shaver.
10.7 Employment Agreement dated as of July 2, 1998, by and among First
Community Bank of Henry County, Premier and Charles B. Blackmon.
10.8 Employment Agreement dated as of January 1, 1998 by and between
Premier and Jo S. Hill.
10.9 Employment Agreement dated as of June 9, 1998 by and between
Premier, Premier Bank and A. Lee Wilhelm.
10.10 Employment Agreement dated effective as of July 1, 1998, by and
between Premier, Premier Bank, Central and Southern Bank of Georgia
and Michael E. Ricketson.
10.11 Employment Agreement dated effective as of July 1, 1998, by and
between Premier, Premier Lending Corporation, Premier Bank and
Darrell D. Pittard.
10.12 Employment Agreement dated effective as of July 1, 1998, by and
between Premier, Premier Bank and Robert C. Oliver.
27.1 Financial Data Schedule
b. Reports on Form 8-K
On June 9, 1998, the Company filed a Current Report on Form 8-K, reporting the
consummation of the merger of Lanier Bank & Trust Company with and into Premier
Bank.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PREMIER BANCSHARES, INC.
- -------------------------
Registrant
Date: August 14, 1998 Darrell D. Pittard
------------------
Darrell D. Pittard
Chief Executive Officer
Date: August 14, 1998 Michael E. Ricketson
--------------------
Michael E. Ricketson
Chief Accounting Officer
<PAGE>
EXHIBIT 10.2
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 1st day of July, 1998, by and among PREMIER BANCSHARES, INC., a Georgia
corporation (the "Holding Company"); PREMIER BANK, a wholly-owned Georgia
banking subsidiary of the Holding Company ("Premier"); THE BANK OF GWINNETT
COUNTY ("Gwinnett") (Premier and Gwinnett shall sometimes be collectively
referred to as "Employers"); and GLENN S. WHITE ("Employee") and shall become
effective only upon the closing of that certain Agreement and Plan of
Reorganization, dated as of February 5, 1998, by and between Button Gwinnett
Financial Corporation ("Button Gwinnett") and the Holding Company (the
"Effective Date").
W I T N E S S E T H:
WHEREAS, as of the Effective Date, Button Gwinnett, a Georgia
corporation, merged with and into the Holding Company, and Gwinnett became a
wholly-owned banking subsidiary of the Holding Company;
WHEREAS, as of the Effective Date, Employee became Executive Vice
President of the Holding Company, President of Premier and continued as
President of Gwinnett;
WHEREAS, the Boards of Directors of Employers and the Holding Company
consider the establishment and maintenance of highly competent and skilled
management personnel for Employers and the Holding Company to be essential to
protecting and enhancing their best interests;
<PAGE>
WHEREAS, the Boards of Directors of Employers and the Holding Company
are desirous of inducing Employee to remain in the employ of Employers and the
Holding Company, subject to the terms and conditions hereof;
WHEREAS, Employee is desirous of remaining in the employ of the
Holding Company and Employers, subject to the terms and conditions hereof; and
WHEREAS, the parties agree that the provisions of this Agreement shall
control with respect to the rights and obligations of the parties resulting from
the employment of Employee by Employers and the Holding Company;
NOW, THEREFORE, for and in consideration of the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definitions. The following terms used in this Agreement shall have the
-----------
following meanings:
(a) "Base Salary" shall mean the annual compensation (excluding
Incentive Compensation as defined in (e) of this paragraph and other
benefits) payable or paid to Employee pursuant to paragraph 4(a) of this
Agreement.
(b) "Change of Control" shall be deemed to have occurred if:
(i) Upon the consummation of any transaction in which any person
(or persons acting in concert), partnership, corporation, or other
organization shall own, control, or hold with the power to vote more
than fifty percent (50%) of any class of voting securities of the
--
Holding Company;
(ii) Upon the consummation of any transaction in which the
Holding Company, or substantially all of the assets of the Holding
Company, shall be sold or transferred to, or consolidated or merged
with, another corporation; or
-2-
<PAGE>
(iii) Upon the consummation of any transaction in which either or
both Employers, or substantially all of the assets of either or both
Employers, shall be sold or transferred to, or consolidated or merged
with, another corporation which is not a majority owned subsidiary of
the Holding Company;
provided, however, if the Holding Company or the Employers shall become a
subsidiary of another corporation or shall be merged or consolidated into
another corporation and a majority of the outstanding voting shares of the
parent or surviving corporation are owned immediately after such
acquisition, merger, or consolidation by the owners of a majority of the
voting shares of the Holding Company immediately before such acquisition,
merger, or consolidation, then no Change of Control shall be deemed to have
occurred. It is contemplated by the parties that, during the Term of
Employment, Gwinnett may be merged with and into Premier; and further that,
upon such merger, Premier, for all purposes under this Agreement, shall be
deemed the sole employer of Employee and referred to as "Employers."
(c) "Disability" shall mean a condition for which benefits would be
payable under any long-term disability insurance coverage (without regard
to the application of any elimination period requirement) then provided to
Employee by Employers and/or the Holding Company; or, if no such coverage
is then being provided, the inability of Employee to perform the material
aspects of Employee's duties under this Agreement for a period of at least
ninety (90) consecutive days, as determined by an independent physician
selected with the approval of Employers and/or the Holding Company and
Employee.
(d) "Event of Termination" shall mean the termination by Employers
and/or the Holding Company of Employee's employment under this Agreement by
written notice
-3-
<PAGE>
delivered to Employee for any reason other than Termination for Cause as
defined in (g) of this paragraph or termination following a continuous
period of disability exceeding twelve (12) calendar months pursuant to
--
paragraph 6(a) of this Agreement.
(e) "Incentive Compensation" shall mean that compensation payable or
paid to Employee pursuant to paragraph 4(b) of this Agreement.
(f) "Severance Amount" shall have the same meaning as the term
"parachute payment" defined in Section 280G(b)(2) of the Internal Revenue
Code (as amended).
(g) "Termination for Cause" shall have the meaning provided in
paragraph 7(a) of this Agreement.
2. Employment.
----------
(a) Employers and the Holding Company agree to continue Employee in
their employ, and Employee agrees to remain in the employ of Employers and
the Holding Company, as Executive Vice President of the Holding Company, as
President and Chief Executive Officer of Premier, and as President and
Chief Executive Officer of Gwinnett, for the period stated in paragraph
3(a) hereof and upon the other terms and conditions herein provided.
Employee agrees to perform faithfully such services as are reasonably
consistent with his positions and shall from time to time be assigned to
him by the Boards of Directors of Employers and the Holding Company in a
trustworthy and businesslike manner for the purpose of advancing the
interests of Employers and the Holding Company. At all times,
Employee shall manage and conduct the business of Employers and the Holding
Company in accordance with the policies established by the Boards of
Directors of Employers and the Holding Company, and in compliance with
applicable regulations promulgated by governing regulatory agencies.
Responsibility for the supervision of Employee shall rest with the
-4-
<PAGE>
Boards of Directors of Employers and the Holding Company, which shall
review Employee's performance at least annually. The Boards of Directors of
Employers and the Holding Company shall also have the authority to
terminate Employee, subject to the provisions outlined in paragraph 7 of
this Agreement.
(b) During the term of this Agreement, the Holding Company shall
elect Employee to the Board of Directors of Premier and Employee shall
serve as a Director of Premier. It is expressly agreed that Employee shall
cease serving as a Director of Premier upon the termination of this
Agreement and Employee hereby agrees to immediately resign from the Board
of Directors of Premier upon the termination of this Agreement, whether
voluntary or involuntary, with or without cause.
3. Term and Duties.
---------------
(a) Term of Employment. This Agreement and the period of Employee's
------------------
employment under this Agreement shall be deemed to have commenced as of the
Effective Date and shall continue for a period of thirty-six (36) full
--
calendar months thereafter, unless earlier terminated pursuant to this
Agreement or unless Employee dies before the end of such thirty-six (36)
--
months, in which case the period of employment shall be deemed to continue
until the end of the month of such death. On each anniversary of the
Effective Date, this Agreement and Employee's term of employment shall be
automatically extended for an additional twelve (12) month period, unless
--
Employee on the one hand, or Employers and/or the Holding Company on the
other hand, shall give written notice to the other, within the sixty (60)-
day period immediately prior to the applicable anniversary of the Effective
Date, that Employee's term of employment hereunder shall not be extended.
-5-
<PAGE>
(b) Performance of Duties. During the period of employment hereunder,
---------------------
except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote substantially all of
his business time, attention, skill, and efforts to the faithful
performance of his duties hereunder. Employee's duties shall be divided
between Employers and the Holding Company at the direction and in the
discretion of the Boards of Directors of Employers and the Holding Company
as is commensurate with the division of salary set forth in paragraph 4(a)
of this Agreement. Employee shall be entitled to reasonable participation
as a member in community, civic, or similar organizations and the pursuit
of personal investments which do not present any material conflict of
interest with Employers or the Holding Company, or otherwise unfavorably
affect the performance of Employee's duties pursuant to this Agreement.
(c) Office of Employee. The office of Employee shall be located at
------------------
150 South Perry Street, S.W., Lawrenceville, Georgia 30045, or at such
other location within Fulton or Gwinnett County as Employers and the
Holding Company may from time to time designate; provided, however, that,
in the event such relocation required Employee to move his principal
residence, the Holding Company and/or Employers shall reimburse Employee
for all his reasonable moving expenses.
(d) No Other Agreement. The Employee shall have no employment
------------------
contract or other written or oral agreement concerning employment with any
entity or person other than Employers and the Holding Company during the
term of his employment under this Agreement.
(e) Uniqueness of Employee's Services. Employee hereby represents
---------------------------------
that the services to be performed by him under the terms of this Agreement
are of a special, unique,
-6-
<PAGE>
unusual, extraordinary, and intellectual character which gives them a
peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages and in an action at law. Accordingly, Employee
expressly agrees that Employers and/or the Holding Company, in addition to
any rights or remedies which Employers and/or the Holding Company may
possess, shall be entitled to injunctive and other equitable relief to
prevent the breach of this Agreement by Employee.
4. Compensation and Reimbursement of Expenses.
------------------------------------------
(a) Salary. Subject to the provisions of paragraph 7 hereof,
------
Employers shall pay Employee, as compensation for serving as President and
Chief Executive Officer of Employers, an initial Base Salary of
$185,000.00; such initial Base Salary, or any increased Base Salary, shall
-----------
be payable in substantially equal installments in accordance with the
Employers' normal pay practices, but not less frequently than monthly. For
each twelve-month period, 10% of Employee's Base Salary shall be ascribed
to and reflected upon the books and records of the Holding Company for the
services performed by Employee for the Holding Company and, until Gwinnett
shall be merged with and into Premier, 45% of Employee's Base Salary shall
be ascribed to and reflected upon the books and records of Gwinnett and 45%
of Employee's Base Salary shall be ascribed to and reflected upon the books
and records of Premier, commensurate with the services performed by
Employee for the respective employer. Employee's Base Salary and any
Incentive Compensation (as defined in paragraph 4(b) hereof) shall be
reviewed and approved at least annually by the Boards of Directors of
Employers and the Holding Company, or any committee(s) designated thereby.
Said Boards or Committee(s), if warranted in their discretion, may increase
Employee's Base Salary to reflect Employee's performance.
-7-
<PAGE>
(b) Incentive Compensation. During the Term of Employment, Employee
----------------------
shall be eligible to participate in any incentive bonus plans maintained by
Employers and/or the Holding Company for its/their executive officers. It
is contemplated that an annual incentive bonus plan will be maintained by
Employers and/or the Holding Company which will establish individual
performance goals for Employee each and every fiscal year during the Term
of Employment, with Employee being awarded a target bonus ("Incentive
Compensation") of approximately thirty-five percent (35%) of his then
--
current Base Salary upon the attainment, in the discretion of the Boards of
Directors of Employers and/or the Holding Company or any committee(s)
designated thereby, of Employee's individual performance goals and certain
specified corporate objectives. The payment to Employee of any Incentive
Compensation as aforesaid shall be made by Employers and/or the Holding
Company in accordance with the policy or policies established by the Boards
of Directors of Employers and/or the Holding Company or any committee(s)
designated thereby. Notwithstanding anything contained in this Agreement to
the contrary, any increase to Employee's Total Compensation, as hereinafter
defined, paid to Employee shall be (i) in compliance with regulations,
pronouncements, directives, or orders issued or promulgated by any
governing regulatory agency and with any agreements by and between
Employers and/or the Holding Company and such regulatory agencies, (ii)
consistent with the safe and sound operation of Employers and the Holding
Company, (iii) closely monitored by the Boards of Directors of Employers
and the Holding Company and (iv) comparable to such compensation paid to
persons of similar responsibilities and duties in other insured
institutions of similar size, in similar locations, and under similar
circumstances including financial condition and profitability.
-8-
<PAGE>
(c) Total Compensation. During the first thirty-six (36) months of
------------------
this Agreement, Employee shall receive a minimum Total Compensation of
$240,000.00, annually. "Total Compensation" is defined as the sum of
-----------
Employee's Base Salary plus Employee's Incentive Compensation. After the
first thirty-six (36) months of this Agreement have expired, Employee shall
receive such Total Compensation as is determined in the discretion of the
Boards of Directors of Employers and/or the Holding Company or any
committee(s) designated thereby as set forth in paragraphs 7(a) and 7(b)
above.
(d) Reimbursement of Expenses. Employers and/or the Holding Company
-------------------------
shall pay or reimburse Employee for all reasonable travel (except as
modified by paragraph 7(f) hereof) and other expenses incurred by Employee
in the performance of his obligations and duties under this Agreement as
provided in the applicable policies of Employers and/or the Holding
Company, as currently adopted or as may be adopted in the future by the
Boards of Directors of Employers and/or the Holding Company.
(e) Provision for Business Development Expenses. In addition to the
-------------------------------------------
foregoing, Employers and the Holding Company believe that their best
interests will be more fully served if Employee maintains active membership
in or joins appropriate business or social clubs and other professional
associations. Accordingly, Employers shall also reimburse Employee for the
dues and business related expenditures associated with Employee's
membership in the Atlanta Athletic Club and such appropriate business or
other social clubs and professional associations which are commensurate
with his positions and approved by the Boards of Directors of Employers and
the Holding Company.
-9-
<PAGE>
(f) Provision of Automobile.
-----------------------
(i) The Holding Company shall, on the Effective Date of this
Agreement, cause to be transferred to Employee the title to that
certain 1995 Chevrolet Impala automobile owned by Gwinnett.
(ii) Employers and/or Holding Company shall provide Employee
with an automobile allowance of $800 per month. No other reimbursement
---
will be made relating to the operation and maintenance of any
automobile by Employee; and Employee shall maintain, at his expense,
automobile liability insurance to protect Employee and Employers
and/or the Holding Company, as their respective interests may appear,
against claims arising out of the use of said automobile (or any other
motor vehicle) in the course of Employee's employment hereunder.
(f) "Golden Parachute" Provision. Notwithstanding anything contained
----------------------------
in this Agreement to the contrary, any payments made to Employee pursuant
to this Agreement, or otherwise to Employee, are subject to and conditioned
upon their compliance with 12 U.S.C. (S) 1828(k) and any regulations
promulgated thereunder.
5. Participation in Benefit Plans. The payments provided in paragraph 4,
------------------------------
6, and 7 hereof are in addition to any benefits to which Employee may be, or may
become, entitled to, under any group hospitalization, health, dental care, or
sick leave plan; life insurance or death benefit plan; travel or accident
insurance; pension or retirement plan; stock option or ownership plan; or other
present or future group employee benefit plan or program for which senior
executive officers of Employers and/or the Holding Company shall be or shall
become eligible. Said benefit shall include, without limitation, major
medical/dental insurance for Employee and his dependents.
-10-
<PAGE>
6. Benefits Payable Upon Disability.
--------------------------------
(a) Disability Benefits. In the event of the Disability of Employee,
-------------------
Employers and the Holding Company shall continue to pay Employee 100% of
----
Employee's then current Base Salary pursuant to paragraph 4(a) during the
first twelve (12) months of a continuous period of disability. It is
--
provided, however, that in the event Employee is disabled for a continuous
period exceeding twelve (12) months, Employers and/or the Holding Company
--
may, at its election, terminate this Agreement, in which event payment of
Employee's Base Salary shall cease.
(b) Disability Benefit Offset. Any amounts payable under paragraph
-------------------------
6(a) hereof shall be reduced by any amounts paid to Employee under any
other disability program or policy of insurance maintained by Employers
and/or the Holding Company.
7. Payments to Employee Upon Termination of Employment. The Boards of
---------------------------------------------------
Directors of Employers and the Holding Company may terminate Employee's
employment under this Agreement at any time; but any termination other than
Termination for Cause shall not prejudice Employee's right to compensation or
other benefits under this Agreement. Employee may voluntarily terminate his
employment under this Agreement. The rights and obligations of Employers and/or
the Holding Company and Employee in the event of such termination are set forth
in this paragraph 7 as follows:
(a) Termination for Cause. Employee shall have no right to
---------------------
compensation or other benefits for any period after a Termination for
Cause. Termination for Cause shall be determined by the Boards of
Directors of Employers and the Holding Company in the reasonable exercise
of their discretion and acting in good faith. For purposes of this
Agreement, "Cause" shall mean:
-11-
<PAGE>
(i) the willful or gross misconduct or willful or gross
negligence in the performance by Employee of Employee's duties for
Employers and/or the Holding Company;
(ii) the intentional neglect by Employee of Employee's duties
for Employers and/or the Holding Company;
(iii) the conviction of Employee of theft or misappropriation of
funds of Employers and/or the Holding Company or of a business-related
felony or a felony involving moral turpitude;
(iv) the commencement of a proceeding by or against Employee
under any bankruptcy, insolvency, or similar law;
(v) the willful violation by Employee of any agreement with, or
cease and desist order entered by, any governing regulatory agency
involving Employers and/or the Holding Company; or
(vi) the regulatory suspension or removal of Employee as defined
in paragraphs 9(a) and (b) hereof.
The termination of employment of Employee shall not be deemed to be for
Cause unless and until there shall have been delivered to Employee a copy
of a resolution duly adopted by the affirmative vote of not less than two-
thirds of the entire membership of the Board(s) of the Holding Company,
Premier, and/or Gwinnett at a meeting of the respective Board(s) called and
held for such purpose (after reasonable notice is provided to Employee and
Employee is given an opportunity, together with counsel, to be heard before
the Board), finding that, in the good faith opinion of the Board, Employee
is guilty of the conduct described herein
-12-
<PAGE>
in subparagraph (i), (ii), (iii), (iv), (v), or (vi) of this paragraph 7(a)
above, and specifying the particulars thereof in detail.
(b) Event of Termination Without Change of Control. Upon the
----------------------------------------------
occurrence of an Event of Termination, other than after a Change of
Control as provided in paragraph 7(c) hereof, Employee, or in the event of
his subsequent death, his designated beneficiary or beneficiaries, or his
estate, as the case may be, shall receive, as liquidated damages, in lieu
of all other claims, a severance payment equal to three (3) times
Employee's then current Total Compensation paid to Employee during the
immediately preceding twelve (12) months, to be paid in full on the last
day of the month following the date of said Event of Termination. The
responsibility for making such severance payment shall be allocated among
Employers and the Holding Company in whatever manner they deem appropriate.
(c) Event of Termination in Connection With a Change of Control. If,
-----------------------------------------------------------
during the term of this Agreement and within one (1) year immediately
-
following a Change of Control or within six (6) months immediately prior to
-
such Change of Control, Employee's employment with Employers under this
Agreement is terminated by an Event of Termination, Employee, or in the
event of his subsequent death, his designated beneficiary or beneficiaries,
or his estate, as the case may be, shall receive, as liquidated damages, in
lieu of all other claims, a severance payment equal to three (3) times
Employee's then current Total Compensation paid to Employee during the
immediately preceding twelve (12) months, to be paid in full on the last
--
day of the month following the date of said Event of Termination. The
responsibility for making such severance payment shall be allocated among
Employers and the Holding Company in whatever manner they deem appropriate.
In no event shall the payment(s) described in this paragraph 7(c) exceed
the amount
-13-
<PAGE>
permitted by Section 280G of the Internal Revenue Code (as amended).
Therefore, if the aggregate present value (determined as of the date of the
Change of Control in accordance with the provisions of Section 280G of the
Internal Revenue Code (as amended) or any successor thereof and the
regulations and rulings thereunder ("Section 280G")) of both the Severance
Amount and all other payments to Employee in the nature of compensation
which are contingent on a change in ownership or effective control of the
Employers or Holding Company or in the ownership of a substantial portion
of the assets of Employers or Holding Company (the "Aggregate Severance")
would result in a parachute payment (as determined under Section 280G) then
the Aggregate Severance shall not be greater than an amount equal to 2.99
multiplied by Employee's base amount (as determined under Section 280G) for
the base period (as determined under Section 280G). In the event the
Aggregate Severance is required to be reduced pursuant to this paragraph
7(c), Employee shall be entitled to determine which portions of the
Aggregate Severance are to be reduced so that the Aggregate Severance
satisfies the limit set forth in the preceding sentence. Employee's average
annual compensation shall be based on the most recent five taxable years
ending before the Change of Control (or the period during which Employee
was employed by Employers and/or the Holding Company if Employee has been
employed by Employers and/or the Holding Company for less than five years).
(d) Voluntary Termination of Employment. Employee shall have no right
-----------------------------------
to compensation or other benefits under this Agreement for any period
following the voluntary termination of Employee's employment by Employee,
except as provided in paragraph 7(b), 7(c), or 7(e) hereof.
-14-
<PAGE>
(e) Termination of Employment for Good Reason. If, during the term of
-----------------------------------------
this Agreement, the status, character, capacity, and circumstances of
Employee's employment as provided in paragraphs 2, 3, 4 and 5 of this
Agreement have been materially altered by Employers or the Holding Company,
whether by a reduction in salary, responsibilities, authority or benefits,
and Employee terminates his employment under this Agreement within twelve
(12) months thereafter for that reason, Employee, or in the event of his
subsequent death, his designated beneficiary or beneficiaries, or his
estate, as the case may be, shall receive as liquidated damages, in lieu of
all other claims, a severance payment equal to three (3) times Employee's
then current Total Compensation paid to Employee during the immediately
preceding twelve (12) months, to be paid in full on the last day of the
month following the date of said termination. The responsibility for
making such severance payments shall be allocated among Employers and the
Holding Company in whatever manner they deem appropriate.
(f) Additional Payments After Termination. In the event that
-------------------------------------
Employee's employment is terminated pursuant to paragraph 7(b), 7(c), or
7(e) above, then Employers and/or the Holding Company shall pay Employee an
additional amount equal to Employee's cost of COBRA health continuation
coverage for Employee and his eligible dependants for the period during
which Employee and his eligible dependants are entitled to receive COBRA
continuation coverage from Employers and/or the Holding Company under the
applicable laws, rules and regulations governing COBRA.
8. Vacation and Sick Leave. Employee shall be entitled, without loss of
-----------------------
pay, to absent himself voluntarily from the performance of his duties under this
Agreement in accordance with the terms set forth below, all such voluntary
absences to count as vacation time, provided that:
-15-
<PAGE>
(a) Employee shall be entitled to an annual vacation in accordance
with the policies that the Boards of Directors of Employers and/or the
Holding Company periodically establish(es) for senior management employees
of Employers and/or the Holding Company.
(b) Employee shall not receive any additional compensation from
Employers and/or the Holding Company on account of his failure to take a
vacation, and Employee shall not accumulate unused vacation from one fiscal
year to the next, except in either case to the extent authorized by the
Boards of Directors of Employers and/or the Holding Company.
(c) In addition to the aforesaid paid vacations, Employee shall be
entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment obligations with Employers and the Holding
Company for such additional periods of time and for such valid and
legitimate reasons as the Boards of Directors of Employers and/or the
Holding Company may in its/their discretion approve. It is also provided
that the Boards of Directors of Employers and/or the Holding Company may
grant to Employee a leave or leaves of absence, with or without pay, at
such time or times and upon such terms and conditions as the Boards of
Directors of Employers and/or the Holding Company may in its/their
discretion determine.
(d) Employee shall be further entitled to an annual sick leave
benefit as may be established by the Boards of Directors of Employers
and/or the Holding Company.
9. Regulatory Suspension.
---------------------
(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employers by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S)1818(e)(3) or (g)(1), the obligations of Employers and the
Holding Company under this Agreement shall be suspended as of the date
-16-
<PAGE>
of service of such notice, unless stayed by appropriate proceedings. If
the charges in the notice are dismissed, then the Employers and/or the
Holding Company may, in their discretion, (i) pay Employee all or part of
the compensation withheld while its contract obligations were suspended and
(ii) reinstate in whole or in part any of its obligations which were
suspended.
(b) If Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employer by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(4) or (g)(1), all obligations of the Employers and the
Holding Company under this Agreement shall terminate as of the effective
date of the order.
10. Source of Payments. All payments provided in paragraphs 4, 6, and 7
------------------
hereof shall be paid in cash from the general funds of Employers and/or the
Holding Company as provided herein, and no special or separate fund shall be
established by Employers or the Holding Company, and no other segregation of
assets shall be made to assure payment. Employee shall have no right, title, or
interest in or to any investments which Employers and/or the Holding Company may
make to meet the obligations hereunder.
11. Nondisclosure of Confidential Information. Employee acknowledges that
-----------------------------------------
he possesses confidential information of a special and unique nature and value
affecting and relating to Employers's and the Holding Company's business,
including, without limitation, customer lists, deposits, business records, other
trade secrets, and other similar confidential information relating to Employers
and the Holding Company and the business of each (all the foregoing being
hereinafter collectively referred to as "Confidential Information"). Employee
recognizes and acknowledges that all Confidential Information is the exclusive
property of Employers and the Holding Company, respectively, constitutes trade
secrets of Employers and the Holding Company, is material and
-17-
<PAGE>
confidential, and greatly affects the goodwill and the effective and successful
conduct of the business of Employers and the Holding Company. As a material
inducement to Employers and the Holding Company to enter into this Agreement and
to employ Employee, 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 Employers and the
Holding Company so long as it is not known by competitors of Employers and/or
the Holding Company and that Employers and the Holding Company have taken
reasonable steps to keep all such information and trade secrets confidential.
12. Injunctions. In view of the irreparable harm and damage which
-----------
Employers and the Holding Company would sustain as a result of a breach by
Employee of the covenants or agreements under paragraph 11 hereof, and in view
of the lack of an adequate remedy at law to protect Employers's and the Holding
Company's interests, Employers and the Holding Company shall have the right to
receive, and Employee hereby consents to the issuance of, a permanent injunction
enjoining Employee from any violation of the covenants and agreements set forth
in paragraph 11 hereof, which injunction shall be of a duration consistent with
the provisions of paragraph 11 hereof. The foregoing remedy shall be in addition
to, and not in limitation of, any other rights or remedies to which Employers
and/or the Holding Company are or may be entitled at law or in equity respecting
this Agreement.
13. Attorneys' Fees. In the event any party hereto is required to engage
---------------
in legal action against any other party hereto, either as plaintiff or
defendant, in order to enforce or defend any of
-18-
<PAGE>
its or his rights under this Agreement, and such action results in a final
judgment in favor of one or more parties, then the party or parties against whom
said final judgment is obtained shall reimburse the prevailing party or parties
for all legal fees and expenses incurred by the prevailing party or parties in
asserting or defending its or his rights hereunder. It is provided, however,
that, prior to a final judgment, Employers and/or the Holding Company shall
advance to Employee the reasonable legal fees and expenses incurred by Employee
in connection with Employee's engagement in any legal action against Employers
and/or the Holding Company, either as plaintiff or defendant, in order to
enforce or defend any of Employee's rights under this Agreement. Such advances
shall be made within thirty (30) days after receiving copies of invoices
presented by Employee for such reasonable legal fees and expenses. Employee
shall have the obligation to reimburse Employers and/or the Holding Company
within sixty (60) days following the final disposition of the matter (including
appeals) to the full extent of the aggregate advances unless Employee shall have
prevailed in asserting or defending his rights hereunder.
14. Federal Income Tax Withholding. Employers and the Holding Company may
------------------------------
withhold from any benefits payable under this Agreement all federal, state,
city, or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
15. Effect of Prior Agreements. This Agreement, that certain Indexed
--------------------------
Executive Salary Continuation Agreement, dated as of September 9, 1994, as
amended and restated, between Employee and Gwinnett, and that certain Flexible
Premium Life Insurance Endorsement Method Split Dollar Plan Agreement, dated as
of September 9, 1994, as amended, between Employee and Gwinnett, contain the
entire understanding between the parties hereto and supersede any prior written
agreements and any contemporaneous oral agreements or understandings by,
between, or among the Employers and/or the Holding Company and Employee with
respect to Employee's employment.
-19-
<PAGE>
16. General Provisions.
------------------
(a) Nonassignability. Neither this Agreement nor any right or
----------------
interest hereunder shall be assignable by Employee, his beneficiaries or
legal representatives, without the written consent of Employers and the
Holding Company; provided, however, that nothing in this paragraph 16(a)
shall preclude (i) Employee from designating a beneficiary to receive any
benefits payable hereunder upon his death, or (ii) the executors,
administrators, or other legal representatives of Employee or his estate
from assigning any rights hereunder to the person or persons entitled
thereto.
(b) No Attachment. Except as required by law, no right to receive
-------------
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void,
and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and
-----------------
inure to the benefit of, Employers, the Holding Company, and Employee and
their respective heirs, successors, assigns, and legal representatives.
17. Modification and Waiver.
-----------------------
(a) Amendment of Agreement. This Agreement may not be modified or
----------------------
amended except by an instrument in writing, signed by the parties hereto,
and which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to
------
have been waived, nor shall there be any estoppel against the enforcement
of any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated
-20-
<PAGE>
therein, and each waiver shall operate only as to the specific term or
condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically
waived.
18. Severability. If for any reason any provision of this Agreement is
------------
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
19. Headings. The headings of paragraphs herein are included solely for
--------
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
20. Governing Law. This Agreement has been executed and delivered in the
-------------
State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
21. Rights of Third Parties. Nothing herein expressed or implied is
-----------------------
intended to or shall be construed to confer upon or give to any person, firm, or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement.
22. Notices. All notices, requests, demands, and other communications
-------
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the United
-21-
<PAGE>
States by registered or certified mail, or personally delivered, to the party
entitled thereto at the address stated below or to such changed address as the
addressee may have given by a similar notice:
To Employers and
the Holding Company: Chairman, Compensation Committee
Board of Directors
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
-and-
Copy to: Steven S. Dunlevie, Esq.
Womble Carlyle Sandridge & Rice, PLLC
Suite 700
1275 Peachtree Street
Atlanta, Georgia 30309
To Employee: Mr. Glenn S. White
1101 Summer Ridge Lane
Lawrenceville, Georgia 30047
IN WITNESS WHEREOF, Employers and the Holding Company have caused this
Agreement to be executed and their seal to be affixed hereunto by their duly
authorized officers, and Employee has signed this Agreement, as of the Effective
Date.
ATTEST: PREMIER BANCSHARES, INC.
/s/ By: /s/
- ----------------------- -------------------------------
Secretary Darrell D. Pittard
Chairman of the Board
[CORPORATE SEAL]
ATTEST: PREMIER BANK
/s/ By: /s/
- ----------------------- --------------------------------
Secretary Darrell D. Pittard
Chairman of the Board
[BANK SEAL]
-22-
<PAGE>
ATTEST: THE BANK OF GWINNETT COUNTY
/s/ By: /s/
- ----------------------- ------------------------------
Secretary John D. Stephens
Chairman of the Board
[BANK SEAL]
/s/ /s/ (SEAL)
- ----------------------- ------------------------------
Witness GLENN S. WHITE
-23-
<PAGE>
EXHIBIT 10.3
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 1/st/ day of July, 1998, by and among PREMIER BANK ("Premier"), a wholly-
owned Georgia banking subsidiary of among Premier Bancshares, Inc., a Georgia
corporation (the "Holding Company"); THE BANK OF GWINNETT COUNTY ("Gwinnett")
(Premier and Gwinnett shall sometimes be collectively referred to as
"Employers"); and ANDREW R. POURCHIER ("Employee") and shall become effective
only upon the closing of that certain Agreement and Plan of Reorganization,
dated as of February 5, 1998, by and between Button Gwinnett Financial
Corporation ("Button Gwinnett") and the Holding Company (the "Effective Date").
W I T N E S S E T H:
WHEREAS, as of the Effective Date, Button Gwinnett, a Georgia
corporation, merged with and into the Holding Company, and Gwinnett became a
wholly-owned banking subsidiary of the Holding Company;
WHEREAS, as of the Effective Date, Employee became Executive Vice
President of Premier and continued as Executive Vice President of Gwinnett;
WHEREAS, the Boards of Directors of Employers consider the
establishment and maintenance of highly competent and skilled management
personnel for Employers to be essential to protecting and enhancing their best
interests;
WHEREAS, the Boards of Directors of Employers are desirous of inducing
Employee to remain in the employ of Employers, subject to the terms and
conditions hereof;
WHEREAS, Employee is desirous of remaining in the employ of Employers,
subject to the terms and conditions hereof; and
<PAGE>
WHEREAS, the parties agree that the provisions of this Agreement shall
control with respect to the rights and obligations of the parties resulting from
the employment of Employee by Employers;
NOW, THEREFORE, for and in consideration of the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definitions. The following terms used in this Agreement shall have the
-----------
following meanings:
(a) "Base Salary" shall mean the annual compensation (excluding
Incentive Compensation as defined in (e) of this paragraph and other
benefits) payable or paid to Employee pursuant to paragraph 4(a) of this
Agreement.
(b) "Change of Control" shall be deemed to have occurred if:
(i) Upon the consummation of any transaction in which any
person (or persons acting in concert), partnership, corporation, or
other organization shall own, control, or hold with the power to vote
more than fifty percent (50%) of any class of voting securities of the
Holding Company;
(ii) Upon the consummation of any transaction in which the
Holding Company, or substantially all of the assets of the Holding
Company, shall be sold or transferred to, or consolidated or merged
with, another corporation; or
(iii) Upon the consummation of any transaction in which either or
both Employers, or substantially all of the assets of either or both
Employers, shall be sold or transferred to, or consolidated or merged
with, another corporation which is not a majority owned subsidiary of
the Holding Company;
-2-
<PAGE>
provided, however, if the Holding Company or the Employers shall become a
subsidiary of another corporation or shall be merged or consolidated into
another corporation and a majority of the outstanding voting shares of the
parent or surviving corporation are owned immediately after such
acquisition, merger, or consolidation by the owners of a majority of the
voting shares of the Holding Company immediately before such acquisition,
merger, or consolidation, then no Change of Control shall be deemed to have
occurred. It is contemplated by the parties that, during the Term of
Employment, Gwinnett may be merged with and into Premier; and further that,
upon such merger, Premier, for all purposes under this Agreement, shall be
deemed the sole employer of Employee and referred to as "Employers."
(c) "Disability" shall mean a condition for which benefits would be
payable under any long-term disability insurance coverage (without regard
to the application of any elimination period requirement) then provided to
Employee by Employers; or, if no such coverage is then being provided, the
inability of Employee to perform the material aspects of Employee's duties
under this Agreement for a period of at least ninety (90) consecutive days,
as determined by an independent physician selected with the approval of
Employers and Employee.
(d) "Event of Termination" shall mean the termination by Employers of
Employee's employment under this Agreement by written notice delivered to
Employee for any reason other than Termination for Cause as defined in (g)
of this paragraph or termination following a continuous period of
disability exceeding twelve (12) calendar months pursuant to paragraph 6(a)
of this Agreement.
-3-
<PAGE>
(e) "Incentive Compensation" shall mean that compensation payable or
paid to Employee pursuant to paragraph 4(b) of this Agreement.
(f) "Severance Amount" shall have the same meaning as the term
"parachute payment" defined in Section 280G(b)(2) of the Internal Revenue
Code (as amended).
(g) "Termination for Cause" shall have the meaning provided in
paragraph 7(a) of this Agreement.
2. Employment.
----------
(a) Employers agree to continue Employee in their employ, and
Employee agrees to remain in the employ of Employers, as Executive Vice
President of Gwinnett and as Executive Vice President of Premier, for the
period stated in paragraph 3(a) hereof and upon the other terms and
conditions herein provided. Employee agrees to perform faithfully such
services as are reasonably consistent with his positions and shall from
time to time be assigned to him by the Boards of Directors of Employers in
a trustworthy and businesslike manner for the purpose of advancing the
interests of Employers. At all times, Employee shall manage and conduct the
business of Employers in accordance with the policies established by the
Boards of Directors of Employers, and in compliance with applicable
regulations promulgated by governing regulatory agencies. Responsibility
for the supervision of Employee shall rest with the Boards of Directors of
Employers, which shall review Employee's performance at least annually. The
Boards of Directors of Employers shall also have the authority to terminate
Employee, subject to the provisions outlined in paragraph 7 of this
Agreement.
(b) During the term of this Agreement, the Holding Company shall
elect Employee to the Board of Directors of Premier and Employee shall
serve as a Director of
-4-
<PAGE>
Premier. It is expressly agreed that Employee shall cease serving as a
Director of Premier upon the termination of this Agreement and Employee
hereby agrees to immediately resign from the Board of Directors of Premier
upon the termination of this Agreement, whether voluntary or involuntary,
with or without cause.
3. Term and Duties.
---------------
(a) Term of Employment. This Agreement and the period of Employee's
------------------
employment under this Agreement shall be deemed to have commenced as of the
Effective Date and shall continue for a period of twenty-four (24) full
calendar months thereafter, unless earlier terminated pursuant to this
Agreement or unless Employee dies before the end of such twenty-four (24)
months, in which case the period of employment shall be deemed to continue
until the end of the month of such death. On each anniversary of the
Effective Date, this Agreement and Employee's term of employment shall be
automatically extended for an additional twelve (12) month period, unless
Employee on the one hand, or Employers on the other hand, shall give
written notice to the other, within the sixty (60)-day period immediately
prior to the applicable anniversary of the Effective Date, that Employee's
term of employment hereunder shall not be extended.
(b) Performance of Duties. During the period of employment hereunder,
---------------------
except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote substantially all of
his business time, attention, skill, and efforts to the faithful
performance of his duties hereunder. Employee's duties shall be divided
between Employers at the direction and in the discretion of the Boards of
Directors of Employers as is commensurate with the division of salary set
forth in paragraph 4(a) of this Agreement. Employee shall be entitled to
reasonable participation as a member in
-5-
<PAGE>
community, civic, or similar organizations and the pursuit of personal
investments which do not present any material conflict of interest with
Employers, or otherwise unfavorably affect the performance of Employee's
duties pursuant to this Agreement.
(c) Office of Employee. The office of Employee shall be located at
------------------
2230 Scenic Highway, Snellville, Georgia 30278, or at such other location
within Fulton or Gwinnett County as Employers may from time to time
designate; provided, however, that, in the event such relocation required
Employee to move his principal residence, the Employers shall reimburse
Employee for all his reasonable moving expenses.
(d) No Other Agreement. The Employee shall have no employment
------------------
contract or other written or oral agreement concerning employment with any
entity or person other than Employers and during the term of his employment
under this Agreement.
(e) Uniqueness of Employee's Services. Employee hereby represents
---------------------------------
that the services to be performed by him under the terms of this Agreement
are of a special, unique, unusual, extraordinary, and intellectual
character which gives them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages and in an action at law.
Accordingly, Employee expressly agrees that Employers, in addition to any
rights or remedies which Employers may possess, shall be entitled to
injunctive and other equitable relief to prevent the breach of this
Agreement by Employee.
4. Compensation and Reimbursement of Expenses.
------------------------------------------
(a) Salary. Subject to the provisions of paragraph 7 hereof,
Employers shall pay Employee, as compensation for serving as Executive Vice
President of Employers, an initial Base Salary of $137,000.00 ; such
-----------
initial Base Salary, or any increased Base Salary, shall be payable in
substantially equal installments in accordance with the Employers' normal
pay
-6-
<PAGE>
practices, but not less frequently than monthly. For each twelve-month
period, until Gwinnett shall be merged with and into Premier, 80% of
Employee's Base Salary shall be ascribed to and reflected upon the books
and records of Gwinnett and 20% of Employee's Base Salary shall be ascribed
to and reflected upon the books and records of Premier, commensurate with
the services performed by Employee for the respective employer. Employee's
Base Salary and any Incentive Compensation (as defined in paragraph 4(b)
hereof) shall be reviewed and approved at least annually by the Boards of
Directors of Employers, or any committee(s) designated thereby. Said
Boards or Committee(s), if warranted in their discretion, may increase
Employee's Base Salary to reflect Employee's performance.
(b) Incentive Compensation. During the Term of Employment, Employee
----------------------
shall be eligible to participate in any incentive bonus plans maintained by
Employers for their executive officers. It is contemplated that an annual
incentive bonus plan will be maintained by Employers which will establish
individual performance goals for Employee each and every fiscal year during
the Term of Employment, with Employee being awarded a target bonus
("Incentive Compensation") of approximately thirty percent (30%) of his
then current Base Salary upon the attainment, in the discretion of the
Boards of Directors of Employers or any committee(s) designated thereby, of
Employee's individual performance goals and certain specified corporate
objectives. The payment to Employee of any Incentive Compensation as
aforesaid shall be made by Employers in accordance with the policy or
policies established by the Boards of Directors of Employers or any
committee(s) designated thereby. Notwithstanding anything contained in
this Agreement to the contrary, any increase to Employee's Total
Compensation, as hereinafter defined, paid to Employee shall be (i) in
-7-
<PAGE>
compliance with regulations, pronouncements, directives, or orders issued
or promulgated by any governing regulatory agency and with any agreements
by and between Employers and such regulatory agencies, (ii) consistent with
the safe and sound operation of Employers, (iii) closely monitored by the
Boards of Directors of Employers and (iv) comparable to such compensation
paid to persons of similar responsibilities and duties in other insured
institutions of similar size, in similar locations, and under similar
circumstances including financial condition and profitability.
(c) Total Compensation. During the first twenty-four (24) months of
------------------
this Agreement, Employee shall receive a minimum Total Compensation of
$178,000.00, annually. "Total Compensation" is defined as the sum of
-----------
Employee's Base Salary plus Employee's Incentive Compensation. After the
first twenty-four (24) months of this Agreement have expired, Employee
shall receive such Total Compensation as is determined in the discretion of
the Boards of Directors of Employers or any committee(s) designated thereby
as set forth in paragraphs 7(a) and 7(b) above.
(d) Reimbursement of Expenses. Employers shall pay or reimburse
-------------------------
Employee for all reasonable travel (except as modified by paragraph 7(f)
hereof) and other expenses incurred by Employee in the performance of his
obligations and duties under this Agreement as provided in the applicable
policies of Employers, as currently adopted or as may be adopted in the
future by the Boards of Directors of Employers.
(e) Provision for Business Development Expenses. In addition to the
-------------------------------------------
foregoing, Employers believe that their best interests will be more fully
served if Employee maintains active membership in or joins appropriate
business or social clubs and other professional associations. Accordingly,
Employers shall also reimburse Employee for the dues and
-8-
<PAGE>
business related expenditures associated with Employee's membership in such
appropriate business or other social clubs and professional associations
which are commensurate with his positions and approved by the Boards of
Directors of Employers.
(f) Provision of Automobile.
-----------------------
(i) Employers shall, on the Effective Date of this Agreement,
cause to be transferred to Employee the title to that certain 1997
Ford Explorer automobile owned by Gwinnett.
(ii) Employers shall provide Employee with an automobile
allowance of $500 per month. No other reimbursement will be made
---
relating to the operation and maintenance of any automobile by
Employee; and Employee shall maintain, at his expense, automobile
liability insurance to protect Employee and Employers, as their
respective interests may appear, against claims arising out of the use
of said automobile (or any other motor vehicle) in the course of
Employee's employment hereunder.
(f) "Golden Parachute" Provision. Notwithstanding anything contained
----------------------------
in this Agreement to the contrary, any payments made to Employee pursuant
to this Agreement, or otherwise to Employee, are subject to and conditioned
upon their compliance with 12 U.S.C. (S) 1828(k) and any regulations
promulgated thereunder.
5. Participation in Benefit Plans. The payments provided in paragraph 4,
------------------------------
6, and 7 hereof are in addition to any benefits to which Employee may be, or may
become, entitled to, under any group hospitalization, health, dental care, or
sick leave plan; life insurance or death benefit plan; travel or accident
insurance; pension or retirement plan; stock option or ownership plan; or other
present or future group employee benefit plan or program for which senior
executive officers of
-9-
<PAGE>
Employers shall be or shall become eligible. Said benefit shall include,
without limitation, major medical/dental insurance for Employee and his
dependents.
6. Benefits Payable Upon Disability.
--------------------------------
(a) Disability Benefits. In the event of the Disability of Employee,
-------------------
Employers shall continue to pay Employee 100% of Employee's then current
Base Salary pursuant to paragraph 4(a) during the first twelve (12) months
of a continuous period of disability. It is provided, however, that in the
event Employee is disabled for a continuous period exceeding twelve (12)
months, Employers may, at its election, terminate this Agreement, in which
event payment of Employee's Base Salary shall cease.
(b) Disability Benefit Offset. Any amounts payable under paragraph
-------------------------
6(a) hereof shall be reduced by any amounts paid to Employee under any
other disability program or policy of insurance maintained by Employers.
7. Payments to Employee Upon Termination of Employment. The Boards of
---------------------------------------------------
Directors of Employers may terminate Employee's employment under this Agreement
at any time; but any termination other than Termination for Cause shall not
prejudice Employee's right to compensation or other benefits under this
Agreement. Employee may voluntarily terminate his employment under this
Agreement. The rights and obligations of Employers and Employee in the event of
such termination are set forth in this paragraph 7 as follows:
(a) Termination for Cause. Employee shall have no right to
---------------------
compensation or other benefits for any period after a Termination for
Cause. Termination for Cause shall be determined by the Boards of
Directors of Employers in the reasonable exercise of their discretion and
acting in good faith. For purposes of this Agreement, "Cause" shall mean:
-10-
<PAGE>
(i) the willful or gross misconduct or willful or gross
negligence in the performance by Employee of Employee's duties for
Employers;
(ii) the intentional neglect by Employee of Employee's duties
for Employers;
(iii) the conviction of Employee of theft or misappropriation of
funds of Employers or of a business related felony or a felony
involving moral turpitude;
(iv) the commencement of a proceeding by or against Employee
under any bankruptcy, insolvency, or similar law;
(v) the willful violation by Employee of any agreement with, or
cease and desist order entered by, any governing regulatory agency
involving; or
(vi) the regulatory suspension or removal of Employee as defined
in paragraphs 9(a) and (b) hereof.
The termination of employment of Employee shall not be deemed to be for
Cause unless and until there shall have been delivered to Employee a copy
of a resolution duly adopted by the affirmative vote of not less than two-
thirds of the entire membership of the Board(s) of Premier and/or Gwinnett
at a meeting of the respective Board(s) called and held for such purpose
(after reasonable notice is provided to Employee and Employee is given an
opportunity, together with counsel, to be heard before the Board), finding
that, in the good faith opinion of the Board, Employee is guilty of the
conduct described herein in subparagraph (i), (ii), (iii), (iv), (v) or
(vi) of this paragraph 7(a), and specifying the particulars thereof in
detail.
(b) Event of Termination Without Change of Control. Upon the
----------------------------------------------
occurrence of an Event of Termination, other than after a Change of
Control as provided in paragraph 7(c) hereof, Employee, or in the event of
his subsequent death, his designated beneficiary or
-11-
<PAGE>
beneficiaries, or his estate, as the case may be, shall receive, as
liquidated damages, in lieu of all other claims, a severance payment equal
to Employee's then current Total Compensation paid to Employee during the
immediately preceding twelve (12) months, to be paid in full on the last
day of the month following the date of said Event of Termination. The
responsibility for making such severance payment shall be allocated among
Employers in whatever manner they deem appropriate.
(c) Event of Termination in Connection With a Change of Control. If,
-----------------------------------------------------------
during the term of this Agreement and within one (1) year immediately
following a Change of Control or within six (6) months immediately prior to
such Change of Control, Employee's employment with Employers under this
Agreement is terminated by an Event of Termination, Employee, or in the
event of his subsequent death, his designated beneficiary or beneficiaries,
or his estate, as the case may be, shall receive, as liquidated damages, in
lieu of all other claims, a severance payment equal to Employee's then
current Total Compensation paid to Employee during the immediately
preceding twelve (12) months, to be paid in full on the last day of the
month following the date of said Event of Termination. The responsibility
for making such severance payment shall be allocated among Employers in
whatever manner they deem appropriate. In no event shall the payment(s)
described in this paragraph 7(c) exceed the amount permitted by Section
280G of the Internal Revenue Code (as amended). Therefore, if the
aggregate present value (determined as of the date of the Change of Control
in accordance with the provisions of Section 280G of the Internal Revenue
Code (as amended) or any successor thereof and the regulations and rulings
thereunder ("Section 280G")) of both the Severance Amount and all other
payments to Employee in the nature of compensation which are contingent on
a change in ownership or
-12-
<PAGE>
effective control of the Employers or Holding Company or in the ownership
of a substantial portion of the assets of Employers or Holding Company (the
"Aggregate Severance") would result in a parachute payment (as determined
under Section 280G) then the Aggregate Severance shall not be greater than
an amount equal to 2.99 multiplied by Employee's base amount (as determined
under Section 280G) for the base period (as determined under Section 280G).
In the event the Aggregate Severance is required to be reduced pursuant to
this paragraph 7(c), Employee shall be entitled to determine which portions
of the Aggregate Severance are to be reduced so that the Aggregate
Severance satisfies the limit set forth in the preceding sentence.
Employee's average annual compensation shall be based on the most recent
five taxable years ending before the Change of Control (or the period
during which Employee was employed by Employers and/or the Holding Company
if Employee has been employed by Employers and/or the Holding Company for
less than five years).
(d) Voluntary Termination of Employment. Employee shall have no right
-----------------------------------
to compensation or other benefits under this Agreement for any period
following the voluntary termination of Employee's employment by Employee,
except as provided in paragraph 7(b), 7(c), or 7(e) hereof.
(e) Termination of Employment for Good Reason. If, during the term of
-----------------------------------------
this Agreement, the status, character, capacity, and circumstances of
Employee's employment as provided in paragraphs 2, 3, 4 and 5 of this
Agreement have been materially altered by Employers, whether by a reduction
in salary, responsibilities, authority or benefits, and Employee terminates
his employment under this Agreement within twelve (12) months thereafter
for that reason, Employee, or in the event of his subsequent death, his
designated beneficiary or beneficiaries, or his estate, as the case may be,
shall receive as liquidated
-13-
<PAGE>
damages, in lieu of all other claims, a severance payment equal to
Employee's then current Total Compensation paid to Employee during the
immediately preceding twelve (12) months, to be paid in full on the last
day of the month following the date of said termination. The
responsibility for making such severance payments shall be allocated among
Employers in whatever manner they deem appropriate.
(f) Additional Payments After Termination. In the event that
-------------------------------------
Employee's employment is terminated pursuant to paragraph 7(b), 7(c), or
7(e) above, then Employers shall pay Employee an additional amount equal to
Employee's cost of COBRA health continuation coverage for Employee and his
eligible dependants for the period during which Employee and his eligible
dependants are entitled to receive COBRA continuation coverage from
Employers under the applicable laws, rules and regulations governing COBRA.
8. Vacation and Sick Leave. Employee shall be entitled, without loss of
-----------------------
pay, to absent himself voluntarily from the performance of his duties under this
Agreement in accordance with the terms set forth below, all such voluntary
absences to count as vacation time, provided that:
(a) Employee shall be entitled to an annual vacation in accordance
with the policies that the Boards of Directors of Employers periodically
establish(es) for senior management employees of Employers.
(b) Employee shall not receive any additional compensation from
Employers on account of his failure to take a vacation, and Employee shall
not accumulate unused vacation from one fiscal year to the next, except in
either case to the extent authorized by the Boards of Directors of
Employers.
(c) In addition to the aforesaid paid vacations, Employee shall be
entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment
-14-
<PAGE>
obligations with Employers for such additional periods of time and for such
valid and legitimate reasons as the Boards of Directors of Employers may in
their discretion approve. It is also provided that the Boards of Directors
of Employers may grant to Employee a leave or leaves of absence, with or
without pay, at such time or times and upon such terms and conditions as
the Boards of Directors of Employers may in their discretion determine.
(d) Employee shall be further entitled to an annual sick leave
benefit as may be established by the Boards of Directors of Employers.
9. Regulatory Suspension.
---------------------
(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employers by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S)1818(e)(3) or (g)(1), the obligations of Employers under this
Agreement shall be suspended as of the date of service of such notice,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, then the Employers may, in their discretion, (i) pay Employee
all or part of the compensation withheld while its contract obligations
were suspended and (ii) reinstate in whole or in part any of its
obligations which were suspended.
(b) If Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employer by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(4) or (g)(1), all obligations of the Employers under
this Agreement shall terminate as of the effective date of the order.
10. Source of Payments. All payments provided in paragraphs 4, 6, and 7
------------------
hereof shall be paid in cash from the general funds of Employers as provided
herein, and no special or separate fund shall be established by Employers, and
no other segregation of assets shall be made to assure
-15-
<PAGE>
payment. Employee shall have no right, title, or interest in or to any
investments which Employers may make to meet the obligations hereunder.
11. Nondisclosure of Confidential Information. Employee acknowledges that
-----------------------------------------
he possesses confidential information of a special and unique nature and value
affecting and relating to the business of Employers and the Holding Company
business, including, without limitation, customer lists, deposits, business
records, other trade secrets, and other similar confidential information
relating to Employers and/or the Holding Company and the business of each (all
the foregoing being hereinafter collectively referred to as "Confidential
Information"). Employee recognizes and acknowledges that all Confidential
Information is the exclusive property of Employers and/or the Holding Company,
respectively, constitutes trade secrets of Employers and/or the Holding Company,
is material and confidential, and greatly affects the goodwill and the effective
and successful conduct of the business of Employers and/or the Holding Company.
As a material inducement to Employers to enter into this Agreement and to employ
Employee, 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 Employers and/or the Holding
Company so long as it is not known by competitors of Employers and/or the
Holding Company and that Employers and the Holding Company have taken reasonable
steps to keep all such information and trade secrets confidential.
12. Injunctions. In view of the irreparable harm and damage which
-----------
Employers and/or the Holding Company would sustain as a result of a breach by
Employee of the covenants or agreements
-16-
<PAGE>
under paragraph 11 hereof, and in view of the lack of an adequate remedy at law
to protect the interests of Employers and/or the Holding Company, Employers
and/or the Holding Company shall have the right to receive, and Employee hereby
consents to the issuance of, a permanent injunction enjoining Employee from any
violation of the covenants and agreements set forth in paragraph 11 hereof. The
foregoing remedy shall be in addition to, and not in limitation of, any other
rights or remedies to which Employers and/or the Holding Company is/are or may
be entitled at law or in equity respecting this Agreement. It is expressly
agreed by the parties hereto that the Holding Company is an intended third party
beneficiary of paragraphs 11,12 and 13 of this Agreement and may enforce same
against Employee as if they were a party hereto.
13. Attorneys' Fees. In the event any party hereto is required to engage
---------------
in legal action against any other party hereto, either as plaintiff or
defendant, in order to enforce or defend any of its or his rights under this
Agreement, and such action results in a final judgment in favor of one or more
parties, then the party or parties against whom said final judgment is obtained
shall reimburse the prevailing party or parties for all legal fees and expenses
incurred by the prevailing party or parties in asserting or defending its or his
rights hereunder. It is provided, however, that, prior to a final judgment,
Employers and/or the Holding Company shall advance to Employee the reasonable
legal fees and expenses incurred by Employee in connection with Employee's
engagement in any legal action against Employers and/or the Holding Company,
either as plaintiff or defendant, in order to enforce or defend any of
Employee's rights under this Agreement. Such advances shall be made within
thirty (30) days after receiving copies of invoices presented by Employee for
such reasonable legal fees and expenses. Employee shall have the obligation to
reimburse Employers and/or the Holding Company within sixty (60) days following
the final disposition of the matter (including
-17-
<PAGE>
appeals) to the full extent of the aggregate advances unless Employee shall have
prevailed in asserting or defending his rights hereunder.
14. Federal Income Tax Withholding. Employers may withhold from any
------------------------------
benefits payable under this Agreement all federal, state, city, or other taxes
as shall be required pursuant to any law or governmental regulation or ruling.
15. Effect of Prior Agreements. This Agreement, that certain Indexed
--------------------------
Executive Salary Continuation Agreement, dated as of September 9, 1994, as
amended and restated, between Employee and Gwinnett, and that certain Flexible
Premium Life Insurance Endorsement Method Split Dollar Plan Agreement, dated as
of September 9, 1994, as amended, between Employee and Gwinnett, contain the
entire understanding between the parties hereto and supersede any prior written
agreements and any contemporaneous oral agreements or understandings by,
between, or among the Employers and Employee with respect to Employee's
employment.
16. General Provisions.
------------------
(a) Nonassignability. Neither this Agreement nor any right or
----------------
interest hereunder shall be assignable by Employee, his beneficiaries or
legal representatives, without the written consent of Employers; provided,
however, that nothing in this paragraph 16(a) shall preclude (i) Employee
from designating a beneficiary to receive any benefits payable hereunder
upon his death, or (ii) the executors, administrators, or other legal
representatives of Employee or his estate from assigning any rights
hereunder to the person or persons entitled thereto.
(b) No Attachment. Except as required by law, no right to receive
-------------
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment,
-18-
<PAGE>
levy, and any attempt, voluntary or involuntary, to effect any such action
shall be null, void, and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and
-----------------
inure to the benefit of, Employers and Employee and their respective
heirs, successors, assigns, and legal representatives.
17. Modification and Waiver.
-----------------------
(a) Amendment of Agreement. This Agreement may not be modified or
amended except by an instrument in writing, signed by the parties hereto,
and which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to
------
have been waived, nor shall there be any estoppel against the enforcement
of any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
18. Severability. If for any reason any provision of this Agreement is
------------
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
-19-
<PAGE>
19. Headings. The headings of paragraphs herein are included solely for
--------
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
20. Governing Law. This Agreement has been executed and delivered in the
-------------
State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
21. Rights of Third Parties. Nothing herein expressed or implied is
-----------------------
intended to or shall be construed to confer upon or give to any person, firm, or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement, except as expressly set
forth in paragraph 11 hereof.
22. Notices. All notices, requests, demands, and other communications
-------
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the United States by registered or certified mail,
or personally delivered, to the party entitled thereto at the address stated
below or to such changed address as the addressee may have given by a similar
notice:
To Employers: Chairman, Compensation Committee
Board of Directors
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
-and-
[ADDRESSES CONTINUED ON FOLLOWING PAGE]
-20-
<PAGE>
Copy to: Steven S. Dunlevie, Esq.
Womble Carlyle Sandridge & Rice, PLLC
Suite 700
1275 Peachtree Street
Atlanta, Georgia 30309
To Employee: Mr. Andrew R. Pourchier
688 Ford Avenue
Lawrenceville, Georgia 30044
IN WITNESS WHEREOF, Employers have caused this Agreement to be
executed and their seal to be affixed hereunto by their duly authorized
officers, and Employee has signed this Agreement, as of the Effective Date.
ATTEST: PREMIER BANK
/s/ By: /s/ Darrell D. Pittard
- ------------------------------ --------------------------------
Secretary Darrell D. Pittard
Chairman of the Board
[BANK SEAL]
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<PAGE>
ATTEST: THE BANK OF GWINNETT COUNTY
/s/ By: /s/ John D. Stephens
- ---------------------------- ------------------------------
Secretary John D. Stephens
Chairman of the Board
[BANK SEAL]
/s/ /s/ ANDREW R. POURCHIER (SEAL)
- ---------------------------- ----------------------------------
Witness ANDREW R. POURCHIER
This Agreement is hereby executed by Premier Bancshares to acknowledge its
responsibility to Employee under paragraph 2(b).
ATTEST: PREMIER BANCSHARES, INC.
/s/ By: /s/ Darrell D. Pittard
- ----------------------------- ----------------------------------
Secretary Darrell D. Pittard
Chairman of the Board
-22-
<PAGE>
EXHIBIT 10.4
SEVERANCE PAY AGREEMENT
-----------------------
THIS SEVERANCE PAY AGREEMENT ("Agreement") is made and entered into as of
the 1st day of July, 1998, by and among PREMIER BANK ("Premier"), THE BANK OF
GWINNETT COUNTY ("Gwinnett") (Premier and Gwinnett shall sometimes be
collectively referred to as "Employers"), and JOHN C. PENTECOST ("Employee") and
shall become effective only upon the closing of that certain Agreement and Plan
of Reorganization, dated as of February 5, 1998, by and between Button Gwinnett
Financial Corporation ("Button Gwinnett") and the Holding Company (the
"Effective Date").
W I T N E S S E T H:
WHEREAS, Premier is a wholly owned subsidiary of Premier Bancshares, Inc.
(the "Holding Company");
WHEREAS, as of the Effective Date, Button Gwinnett, a Georgia corporation,
merged with and into the Holding Company, and Gwinnett became a wholly-owned
banking subsidiary of the Holding Company;
WHEREAS, as of the Effective Date, Employee became Senior Vice President of
Commercial Lending of Premier and continued as Senior Vice President of
Commercial Lending of Gwinnett;
WHEREAS, the Boards of Directors of Employers consider the establishment
and maintenance of highly competent and skilled management personnel for
Employers to be essential to protecting and enhancing the best interests of
Employers;
WHEREAS, the Boards of Directors of Employers are desirous of inducing
Employee to remain in the employ of Employers, subject to the terms and
conditions hereof; and
<PAGE>
WHEREAS, the parties agree that the provisions of this Agreement shall
control with respect to the rights and obligations of the parties resulting from
the future termination of the employment of Employee by Employers;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definition of Change of Control. "Change of Control" shall be deemed
-------------------------------
to have occurred:
(a) Upon the consummation of any transaction in which any person (or
persons acting in concert), partnership, corporation, or other organization
shall own, control, or hold with the power to vote more than fifty percent
(50%) of any class of voting securities of the Holding Company;
--
(b) Upon the consummation of any transaction in which the Holding
Company, or substantially all of the assets of the Holding Company, shall
be sold or transferred to, or consolidated or merged with, another
corporation; or
(c) Upon the consummation of any transaction in which either or both
Employers, or substantially all of the assets of either or both Employers,
shall be sold or transferred to, or consolidated or merged with, another
corporation which is not a majority owned subsidiary of the Holding
Company;
provided, however, if either or both Premier and Gwinnett shall become a
subsidiary of another corporation or shall be merged or consolidated into
another corporation and a majority of the outstanding voting shares of the new
parent or surviving corporation are owned, immediately after such acquisition,
merger, or consolidation, by the owners of a majority of the voting shares of
the Holding Company immediately before such acquisition, merger, or
consolidation, then no Change
-2-
<PAGE>
of Control shall be deemed to have occurred. It is contemplated by the parties
that, during the Term of Employment, Gwinnett may be merged with and into
Premier; and further that, upon such merger, Premier, for all purposes under
this Agreement, shall be deemed the sole Employer of Employee and referred to as
"Employers."
2. Employment. Employee agrees to remain in the employ of Employers as
----------
an employee at will under Georgia law. Employee agrees to perform faithfully
such services as are reasonably consistent with his position(s) and shall from
time to time be assigned to him by the Boards of Directors of Employers in a
trustworthy and businesslike manner for the purpose of advancing the interests
of Employers. The Boards of Directors of Employer may also from time to time
change Employee's position or alter his duties and responsibilities and assign a
new position or new duties and responsibilities that are similar in scope and
nature to Employee's existing position, duties, and responsibilities without
invalidating this Agreement or effecting the termination of Employee. At all
times, Employee shall manage and conduct the business of Employers in accordance
with the policies established by the Boards of Directors of Employers and in
compliance with applicable regulations promulgated by governing regulatory
agencies. Responsibility for the supervision of Employee shall rest with the
Chief Executive Officer(s) of Employers. The Boards of Directors of Employers
shall have the authority to terminate Employee, subject only to the provisions
outlined in paragraph 4 of this Agreement.
3. Performance of Duties. During the period of employment hereunder,
---------------------
except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote substantially all of his
business time, attention, skill, and efforts to the faithful performance of his
duties hereunder. Employee shall be entitled to reasonable participation as a
member in community, civic, or similar organizations and the pursuit of personal
investments which do not present any material conflict of interest with
Employers, or otherwise unfavorably
-3-
<PAGE>
affect the performance of Employee's duties pursuant to this Agreement. The
Employee shall have no employment contract or other written or oral agreement
concerning employment with any entity or person other than Employers during the
term of his employment under this Agreement.
4. Payments to Employee Upon Termination of Employment. The Boards of
---------------------------------------------------
Directors of Employers may terminate Employee's employment under this Agreement
at any time. Employee may voluntarily terminate his employment under this
Agreement. The rights and obligations of Employers and Employee in the event of
such termination are set forth in this paragraph 4 as follows:
(a) Termination Without Change of Control. Employee shall have no
-------------------------------------
right to compensation or other benefits for any period after the
termination of his employment, other than a termination after a Change of
Control, regardless of whether the termination is with or without cause or
the termination is voluntary or involuntary.
(b) Event of Termination in Connection With a Change of Control. If,
-----------------------------------------------------------
within six (6) months immediately following a Change of Control or within
-
three (3) months immediately prior to such Change of Control, Employee's
-
employment with Employers is terminated by Employers or by Employee, then
the Employers shall pay to Employee, or in the event of his subsequent
death, his designated beneficiary or beneficiaries, or his estate, as the
case may be, shall receive, as liquidated damages, in lieu of all other
claims, a severance payment equal to the sum of Employee's then current
annual salary plus any incentive compensation paid to Employee during the
immediately preceding twelve (12) months, to be paid in full on the last
--
day of the month following the date of said termination. The responsibility
for making such severance payment shall be allocated among Employers in
whatever manner they deem appropriate. In no event shall the total
compensation paid to Employee upon the termination of his employment in
connection with a Change of Control
-4-
<PAGE>
exceed the amount permitted by Section 280G of the Internal Revenue Code
(as amended) or three times Employee's average annual compensation.
5. Regulatory Suspension.
---------------------
(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employers by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S)1818(e)(3) or (g)(1), then the obligations of Employers under
this Agreement shall be suspended as of the date of service of such notice,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, then the Employers may, in their discretion, (i) pay Employee
all or part of the compensation withheld while its contract obligations
were suspended and (ii) reinstate in whole or in part any of its
obligations which were suspended.
(b) If Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employer by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(4) or (g)(1), then all obligations of the Employers
under this Agreement shall terminate as of the effective date of the order.
6. Source of Payments. All payments provided herein shall be paid in
------------------
cash from the general funds of Employers as provided herein; no special or
separate fund shall be established by Employers; and no other segregation of
assets shall be made to assure payment. Employee shall have no right, title, or
interest in or to any investments which Employers may make to meet the
obligations hereunder.
7. Nondisclosure of Confidential Information. Employee acknowledges that
-----------------------------------------
he possesses confidential information of a special and unique nature and value
affecting and relating to both Employers' and the Holding Company's business,
including, without limitation, customer lists, deposits, business records, other
trade secrets, and other similar confidential information
-5-
<PAGE>
relating to Employers and/or the Holding Company and the business of each (all
the foregoing being hereinafter collectively referred to as "Confidential
Information"). Employee recognizes and acknowledges that all Confidential
Information is the exclusive property of Employers and/or the Holding Company,
respectively, constitutes trade secrets of Employers and/or the Holding Company,
is material and confidential, and greatly affects the goodwill and the effective
and successful conduct of the business of Employers and/or the Holding Company.
As a material inducement to Employers to enter into this Agreement and to employ
Employee, 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 Employers and/or the Holding
Company so long as it is not known by competitors of Employers and/or the
Holding Company and that both the Employers and the Holding Company have taken
reasonable steps to keep all such information and trade secrets confidential.
8. Injunctions. In view of the irreparable harm and damage which
-----------
Employers and/or the Holding Company would sustain as a result of a breach by
Employee of the covenants or agreements under paragraph 7 hereof, and in view of
the lack of an adequate remedy at law to protect the interests of Employers
and/or the Holding Company, Employers and/or the Holding Company shall have the
right to receive, and Employee hereby consents to the issuance of, a permanent
injunction enjoining Employee from any violation of the covenants and agreements
set forth in paragraph 7 hereof. The foregoing remedy shall be in addition to,
and not in limitation of, any other rights or remedies to which Employers and/or
the Holding Company is/are or may be entitled at law or in equity respecting
this Agreement. It is expressly agreed by the parties hereto that the Holding
-6-
<PAGE>
Company is an intended third party beneficiary of paragraphs 7, 8, and 9 of this
Agreement and may enforce same against Employee as if it were a party hereto.
9. Attorneys' Fees. In the event any party hereto is required to engage
---------------
in legal action against any other party hereto, either as plaintiff or
defendant, in order to enforce or defend any of its or his rights under this
Agreement, and such action results in a final judgment in favor of one or more
parties, then the party or parties against whom said final judgment is obtained
shall reimburse the prevailing party or parties for all legal fees and expenses
incurred by the prevailing party or parties in asserting or defending its or his
rights hereunder.
10. Effect of Prior Agreements. This Agreement contains the entire
--------------------------
understanding between the parties hereto and supersedes any prior agreements
relating to employment and any contemporaneous oral agreement or understanding
by, between, or among the Employers and Employee.
11. General Provisions.
------------------
(a) Nonassignability. Neither this Agreement nor any right or
----------------
interest hereunder shall be assignable by Employee, his beneficiaries or
legal representatives, without the written consent of Employers; provided,
however, that nothing in this paragraph 11(a) shall preclude (i) Employee
from designating a beneficiary to receive any benefits payable hereunder
upon his death, or (ii) the executors, administrators, or other legal
representatives of Employee or his estate from assigning any rights
hereunder to the person or persons entitled thereto.
(b) No Attachment. Except as required by law, no right to receive
-------------
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment,
-7-
<PAGE>
levy, and any attempt, voluntary or involuntary, to effect any such action
shall be null, void, and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and
-----------------
inure to the benefit of, the Employers and Employee and their respective
heirs, successors, assigns, and legal representatives.
12. Modification and Waiver.
-----------------------
(a) Amendment of Agreement. This Agreement may not be modified or
----------------------
amended except by an instrument in writing, signed by the parties hereto,
and which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to
------
have been waived, nor shall there be any estoppel against the enforcement
of any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
13. Severability. If for any reason any provision of this Agreement is
------------
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
-8-
<PAGE>
14. Headings. The headings of paragraphs herein are included solely for
--------
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
15. Governing Law. This Agreement has been executed and delivered in the
-------------
State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
16. Rights of Third Parties. Nothing herein expressed or implied is
-----------------------
intended to or shall be construed to confer upon or give to any person, firm, or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement, except as expressly set
forth in paragraph 8 hereof.
17. Notices. All notices, requests, demands, and other communications
-------
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the United States by registered or certified mail,
or personally delivered, to the party entitled thereto at the address stated
below or to such changed address as the addressee may have given by a similar
notice:
To Employers: Chairman, Compensation Committee
Board of Directors
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
Copy to: Steven S. Dunlevie, Esq.
Womble Carlyle Sandridge & Rice, PLLC
Suite 700
1275 Peachtree Street
Atlanta, Georgia 30309
To Employee: Mr. John C. Pentecost
584 Maplewood Drive
Lawrenceville, Georgia 30045
-9-
<PAGE>
IN WITNESS WHEREOF, Employers have caused this Agreement to be
executed and its seal to be affixed hereunto by their duly authorized officers,
and Employee has signed this Agreement under seal, as of the Effective Date.
ATTEST: PREMIER BANK
/s/ By: /s/ Darrell D. Pittard
- --------------------------- -------------------------------
Secretary Darrell D. Pittard
(BANK SEAL) Chairman of the Board
ATTEST: THE BANK OF GWINNETT COUNTY
/s/ By: /s/ Glenn S. White
- -------------------------- -------------------------------
Secretary Glenn S. White
(BANK SEAL) President
/s/ /s/ John C. Pentecost
- -------------------------- -----------------------------(SEAL)
Witness John C. Pentecost
-10-
<PAGE>
Exhibit 10.5
SEVERANCE PAY AGREEMENT
-----------------------
THIS SEVERANCE PAY AGREEMENT ("Agreement") is made and entered into as of
the 1st day of July, 1998, by and among PREMIER BANK ("Premier"), THE BANK OF
GWINNETT COUNTY ("Gwinnett") (Premier and Gwinnett shall sometimes be
collectively referred to as "Employers"), and LINDA S. GEORGE ("Employee") and
shall become effective only upon the closing of that certain Agreement and Plan
of Reorganization, dated as of February 5, 1998, by and between Button Gwinnett
Financial Corporation ("Button Gwinnett") and the Holding Company (the
"Effective Date").
W I T N E S S E T H:
WHEREAS, Premier is a wholly owned subsidiary of Premier Bancshares, Inc.
(the "Holding Company");
WHEREAS, as of the Effective Date, Button Gwinnett, a Georgia corporation,
merged with and into the Holding Company, and Gwinnett became a wholly-owned
banking subsidiary of the Holding Company;
WHEREAS, as of the Effective Date, Employee became Vice President of
Construction Lending of Premier and continued as Vice President of Construction
Lending of Gwinnett;
WHEREAS, the Boards of Directors of Employers consider the establishment
and maintenance of highly competent and skilled management personnel for
Employers to be essential to protecting and enhancing the best interests of
Employers;
WHEREAS, the Boards of Directors of Employers are desirous of inducing
Employee to remain in the employ of Employers, subject to the terms and
conditions hereof; and
WHEREAS, the parties agree that the provisions of this Agreement shall
control with respect to the rights and obligations of the parties resulting from
the future termination of the employment of Employee by Employers;
<PAGE>
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definition of Change of Control. "Change of Control" shall be deemed
-------------------------------
to have occurred:
(a) Upon the consummation of any transaction in which any person (or
persons acting in concert), partnership, corporation, or other organization
shall own, control, or hold with the power to vote more than fifty percent
(50%) of any class of voting securities of the Holding Company;
--
(b) Upon the consummation of any transaction in which the Holding
Company, or substantially all of the assets of the Holding Company, shall
be sold or transferred to, or consolidated or merged with, another
corporation; or
(c) Upon the consummation of any transaction in which either or both
Employers, or substantially all of the assets of either or both Employers,
shall be sold or transferred to, or consolidated or merged with, another
corporation which is not a majority owned subsidiary of the Holding
Company;
provided, however, if either or both Premier and Gwinnett shall become a
subsidiary of another corporation or shall be merged or consolidated into
another corporation and a majority of the outstanding voting shares of the new
parent or surviving corporation are owned, immediately after such acquisition,
merger, or consolidation, by the owners of a majority of the voting shares of
the Holding Company immediately before such acquisition, merger, or
consolidation, then no Change of Control shall be deemed to have occurred. It
is contemplated by the parties that, during the Term of Employment, Gwinnett may
be merged with and into Premier; and further that, upon such merger, Premier,
for all purposes under this Agreement, shall be deemed the sole Employer of
Employee and referred to as "Employers."
-2-
<PAGE>
2. Employment. Employee agrees to remain in the employ of Employers as
----------
an employee at will under Georgia law. Employee agrees to perform faithfully
such services as are reasonably consistent with her position(s) and shall from
time to time be assigned to her by the Boards of Directors of Employers in a
trustworthy and businesslike manner for the purpose of advancing the interests
of Employers. The Boards of Directors of Employer may also from time to time
change Employee's position or alter her duties and responsibilities and assign a
new position or new duties and responsibilities that are similar in scope and
nature to Employee's existing position, duties, and responsibilities without
invalidating this Agreement or effecting the termination of Employee. At all
times, Employee shall manage and conduct the business of Employers in accordance
with the policies established by the Boards of Directors of Employers and in
compliance with applicable regulations promulgated by governing regulatory
agencies. Responsibility for the supervision of Employee shall rest with the
Chief Executive Officer(s) of Employers. The Boards of Directors of Employers
shall have the authority to terminate Employee, subject only to the provisions
outlined in paragraph 4 of this Agreement.
3. Performance of Duties. During the period of employment hereunder,
---------------------
except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote substantially all of her
business time, attention, skill, and efforts to the faithful performance of her
duties hereunder. Employee shall be entitled to reasonable participation as a
member in community, civic, or similar organizations and the pursuit of personal
investments which do not present any material conflict of interest with
Employers, or otherwise unfavorably affect the performance of Employee's duties
pursuant to this Agreement. The Employee shall have no employment contract or
other written or oral agreement concerning employment with any entity or person
other than Employers during the term of her employment under this Agreement.
4. Payments to Employee Upon Termination of Employment. The Boards of
---------------------------------------------------
Directors of Employers may terminate Employee's employment under this Agreement
at any time. Employee
-3-
<PAGE>
may voluntarily terminate her employment under this Agreement. The rights and
obligations of Employers and Employee in the event of such termination are set
forth in this paragraph 4 as follows:
(a) Termination Without Change of Control. Employee shall have no
-------------------------------------
right to compensation or other benefits for any period after the
termination of her employment, other than a termination after a Change of
Control, regardless of whether the termination is with or without cause or
the termination is voluntary or involuntary.
(b) Event of Termination in Connection With a Change of Control. If,
-----------------------------------------------------------
within six (6) months immediately following a Change of Control or within
-
three (3) months immediately prior to such Change of Control, Employee's
-
employment with Employers is terminated by Employers or the status,
character, capacity, and circumstances of Employee's employment have been
materially altered by the Employers whether by a reduction in salary,
responsibilities, authority, or benefits, then the Employers shall pay to
Employee, or in the event of her subsequent death, her designated
beneficiary or beneficiaries, or her estate, as the case may be, shall
receive, as liquidated damages, in lieu of all other claims, a severance
payment equal to one half ( 1/2) of Employee's then current annual salary
plus one half ( 1/2) of any incentive compensation paid to Employee during
the immediately preceding twelve (12) months, to be paid in full on the
--
last day of the month following the date of said termination. The
responsibility for making such severance payment shall be allocated among
Employers in whatever manner they deem appropriate. In no event shall the
total compensation paid to Employee upon the termination of her employment
in connection with a Change of Control exceed the amount permitted by
Section 280G of the Internal Revenue Code (as amended) or three times
Employee's average annual compensation.
5. Regulatory Suspension.
---------------------
-4-
<PAGE>
(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employers by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S)1818(e)(3) or (g)(1), then the obligations of Employers under
this Agreement shall be suspended as of the date of service of such notice,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, then the Employers may, in their discretion, (i) pay Employee
all or part of the compensation withheld while its contract obligations
were suspended and (ii) reinstate in whole or in part any of its
obligations which were suspended.
(b) If Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employer by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(4) or (g)(1), then all obligations of the Employers
under this Agreement shall terminate as of the effective date of the order.
6. Source of Payments. All payments provided herein shall be paid in
------------------
cash from the general funds of Employers as provided herein; no special or
separate fund shall be established by Employers; and no other segregation of
assets shall be made to assure payment. Employee shall have no right, title, or
interest in or to any investments which Employers may make to meet the
obligations hereunder.
7. Nondisclosure of Confidential Information. Employee acknowledges that
-----------------------------------------
she possesses confidential information of a special and unique nature and value
affecting and relating to both Employers' and the Holding Company's business,
including, without limitation, customer lists, deposits, business records, other
trade secrets, and other similar confidential information relating to Employers
and/or the Holding Company and the business of each (all the foregoing being
hereinafter collectively referred to as "Confidential Information"). Employee
recognizes and acknowledges that all Confidential Information is the exclusive
property of Employers and/or the Holding Company, respectively, constitutes
trade secrets of Employers and/or the Holding
-5-
<PAGE>
Company, is material and confidential, and greatly affects the goodwill and the
effective and successful conduct of the business of Employers and/or the Holding
Company. As a material inducement to Employers to enter into this Agreement and
to employ Employee, Employee covenants and agrees that she will not at any time
during the term of her 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 her
own benefit or for the benefit of others. Employee further acknowledges that
said Confidential Information has material commercial value to Employers and/or
the Holding Company so long as it is not known by competitors of Employers
and/or the Holding Company and that both the Employers and the Holding Company
have taken reasonable steps to keep all such information and trade secrets
confidential.
8. Injunctions. In view of the irreparable harm and damage which
-----------
Employers and/or the Holding Company would sustain as a result of a breach by
Employee of the covenants or agreements under paragraph 7 hereof, and in view of
the lack of an adequate remedy at law to protect the interests of Employers
and/or the Holding Company, Employers and/or the Holding Company shall have the
right to receive, and Employee hereby consents to the issuance of, a permanent
injunction enjoining Employee from any violation of the covenants and agreements
set forth in paragraph 7 hereof. The foregoing remedy shall be in addition to,
and not in limitation of, any other rights or remedies to which Employers and/or
the Holding Company is/are or may be entitled at law or in equity respecting
this Agreement. It is expressly agreed by the parties hereto that the Holding
Company is an intended third party beneficiary of paragraphs 7, 8, and 9 of this
Agreement and may enforce same against Employee as if it were a party hereto.
9. Attorneys' Fees. In the event any party hereto is required to engage
---------------
in legal action against any other party hereto, either as plaintiff or
defendant, in order to enforce or defend any of its or her rights under this
Agreement, and such action results in a final judgment in favor of one or
-6-
<PAGE>
more parties, then the party or parties against whom said final judgment is
obtained shall reimburse the prevailing party or parties for all legal fees and
expenses incurred by the prevailing party or parties in asserting or defending
its or her rights hereunder.
10. Effect of Prior Agreements. This Agreement, that certain Indexed
--------------------------
Executive Salary Continuation Agreement dated as of September 9, 1994, as
amended and restated, and that certain Flexible Premium Life Insurance
Endorsement Method Split Dollar Plan Agreement, dated as of September 9, 1994,
as amended, contain the entire understanding between the parties hereto and
supersede any prior agreements relating to employment and any contemporaneous
oral agreement or understanding by, between, or among the Employers and
Employee.
11. General Provisions.
------------------
(a) Nonassignability. Neither this Agreement nor any right or
----------------
interest hereunder shall be assignable by Employee, her beneficiaries or
legal representatives, without the written consent of Employers; provided,
however, that nothing in this paragraph 11(a) shall preclude (i) Employee
from designating a beneficiary to receive any benefits payable hereunder
upon her death, or (ii) the executors, administrators, or other legal
representatives of Employee or her estate from assigning any rights
hereunder to the person or persons entitled thereto.
(b) No Attachment. Except as required by law, no right to receive
-------------
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void,
and of no effect.
-7-
<PAGE>
(c) Binding Agreement. This Agreement shall be binding upon, and
-----------------
inure to the benefit of, the Employers and Employee and their respective
heirs, successors, assigns, and legal representatives.
12. Modification and Waiver.
-----------------------
(a) Amendment of Agreement. This Agreement may not be modified or
----------------------
amended except by an instrument in writing, signed by the parties hereto,
and which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to
------
have been waived, nor shall there be any estoppel against the enforcement
of any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
13. Severability. If for any reason any provision of this Agreement is
------------
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
14. Headings. The headings of paragraphs herein are included solely for
--------
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
-8-
<PAGE>
15. Governing Law. This Agreement has been executed and delivered in the
-------------
State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
16. Rights of Third Parties. Nothing herein expressed or implied is
-----------------------
intended to or shall be construed to confer upon or give to any person, firm, or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement, except as expressly set
forth in paragraph 8 hereof.
17. Notices. All notices, requests, demands, and other communications
-------
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the United States by registered or certified mail,
or personally delivered, to the party entitled thereto at the address stated
below or to such changed address as the addressee may have given by a similar
notice:
To Employers: Chairman, Compensation Committee
Board of Directors
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
Copy to: Steven S. Dunlevie, Esq.
Womble Carlyle Sandridge & Rice, PLLC
Suite 700
1275 Peachtree Street
Atlanta, Georgia 30309
To Employee: Ms. Linda S. George
P.O. Box 548
Snellville, Georgia 30078
-9-
<PAGE>
IN WITNESS WHEREOF, Employers have caused this Agreement to be
executed and its seal to be affixed hereunto by their duly authorized officers,
and Employee has signed this Agreement under seal, as of the Effective Date.
ATTEST: PREMIER BANK
/s/ By: /s/
- -------------------------- --------------------------
Secretary Chairman of the Board
(BANK SEAL)
ATTEST: THE BANK OF GWINNETT COUNTY
/s/ By: /s/ Glenn S. White
- -------------------------- --------------------------
Secretary Glenn S. White
(BANK SEAL) President
/s/ /s/ Linda S. George (SEAL)
- -------------------------- --------------------------------
Witness Linda S. George
-10-
<PAGE>
EXHIBIT 10.6
SEVERANCE PAY AGREEMENT
-----------------------
THIS SEVERANCE PAY AGREEMENT ("Agreement") is made and entered into as of
the 1st day of July, 1998, by and among PREMIER BANK ("Premier"), THE BANK OF
GWINNETT COUNTY ("Gwinnett") (Premier and Gwinnett shall sometimes be
collectively referred to as "Employers"), and WILLIAM P. SHAVER ("Employee") and
shall become effective only upon the closing of that certain Agreement and Plan
of Reorganization, dated as of February 5, 1998, by and between Button Gwinnett
Financial Corporation ("Button Gwinnett") and the Holding Company (the
"Effective Date").
W I T N E S S E T H:
WHEREAS, Premier is a wholly owned subsidiary of Premier Bancshares, Inc.
(the "Holding Company");
WHEREAS, as of the Effective Date, Button Gwinnett, a Georgia corporation,
merged with and into the Holding Company, and Gwinnett became a wholly-owned
banking subsidiary of the Holding Company;
WHEREAS, as of the Effective Date, Employee became Vice President of
Commercial Lending of Premier and continued as Vice President of Commercial
Lending of Gwinnett;
WHEREAS, the Boards of Directors of Employers consider the establishment
and maintenance of highly competent and skilled management personnel for
Employers to be essential to protecting and enhancing the best interests of
Employers;
WHEREAS, the Boards of Directors of Employers are desirous of inducing
Employee to remain in the employ of Employers, subject to the terms and
conditions hereof; and
WHEREAS, the parties agree that the provisions of this Agreement shall
control with respect to the rights and obligations of the parties resulting from
the future termination of the employment of Employee by Employers;
<PAGE>
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definition of Change of Control. "Change of Control" shall be deemed
-------------------------------
to have occurred:
(a) Upon the consummation of any transaction in which any person (or
persons acting in concert), partnership, corporation, or other organization
shall own, control, or hold with the power to vote more than fifty percent
(50%) of any class of voting securities of the Holding Company;
--
(b) Upon the consummation of any transaction in which the Holding
Company, or substantially all of the assets of the Holding Company, shall
be sold or transferred to, or consolidated or merged with, another
corporation; or
(c) Upon the consummation of any transaction in which either or both
Employers, or substantially all of the assets of either or both Employers,
shall be sold or transferred to, or consolidated or merged with, another
corporation which is not a majority owned subsidiary of the Holding
Company;
provided, however, if either or both Premier and Gwinnett shall become a
subsidiary of another corporation or shall be merged or consolidated into
another corporation and a majority of the outstanding voting shares of the new
parent or surviving corporation are owned, immediately after such acquisition,
merger, or consolidation, by the owners of a majority of the voting shares of
the Holding Company immediately before such acquisition, merger, or
consolidation, then no Change of Control shall be deemed to have occurred. It is
contemplated by the parties that, during the Term of Employment, Gwinnett may be
merged with and into Premier; and further that, upon such merger,
-2-
<PAGE>
Premier, for all purposes under this Agreement, shall be deemed the sole
Employer of Employee and referred to as "Employers."
2. Employment. Employee agrees to remain in the employ of Employers as
----------
an employee at will under Georgia law. Employee agrees to perform faithfully
such services as are reasonably consistent with his position(s) and shall from
time to time be assigned to him by the Boards of Directors of Employers in a
trustworthy and businesslike manner for the purpose of advancing the interests
of Employers. The Boards of Directors of Employer may also from time to time
change Employee's position or alter his duties and responsibilities and assign a
new position or new duties and responsibilities that are similar in scope and
nature to Employee's existing position, duties, and responsibilities without
invalidating this Agreement or effecting the termination of Employee. At all
times, Employee shall manage and conduct the business of Employers in accordance
with the policies established by the Boards of Directors of Employers and in
compliance with applicable regulations promulgated by governing regulatory
agencies. Responsibility for the supervision of Employee shall rest with the
Chief Executive Officer(s) of Employers. The Boards of Directors of Employers
shall have the authority to terminate Employee, subject only to the provisions
outlined in paragraph 4 of this Agreement.
3. Performance of Duties. During the period of employment hereunder,
---------------------
except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote substantially all of his
business time, attention, skill, and efforts to the faithful performance of his
duties hereunder. Employee shall be entitled to reasonable participation as a
member in community, civic, or similar organizations and the pursuit of personal
investments which do not present any material conflict of interest with
Employers, or otherwise unfavorably affect the performance of Employee's duties
pursuant to this Agreement. The Employee shall have
-3-
<PAGE>
no employment contract or other written or oral agreement concerning employment
with any entity or person other than Employers during the term of his employment
under this Agreement.
4. Payments to Employee Upon Termination of Employment. The Boards of
---------------------------------------------------
Directors of Employers may terminate Employee's employment under this Agreement
at any time. Employee may voluntarily terminate his employment under this
Agreement. The rights and obligations of Employers and Employee in the event of
such termination are set forth in this paragraph 4 as follows:
(a) Termination Without Change of Control. Employee shall have no
-------------------------------------
right to compensation or other benefits for any period after the
termination of his employment, other than a termination after a Change of
Control, regardless of whether the termination is with or without cause or
the termination is voluntary or involuntary.
(b) Event of Termination in Connection With a Change of Control. If,
-----------------------------------------------------------
within six (6) months immediately following a Change of Control or within
-
three (3) months immediately prior to such Change of Control, Employee's
-
employment with Employers is terminated by Employers or the status,
character, capacity, and circumstances of Employee's employment have been
materially altered by the Employers whether by a reduction in salary,
responsibilities, authority, or benefits, then the Employers shall pay to
Employee, or in the event of his subsequent death, his designated
beneficiary or beneficiaries, or his estate, as the case may be, shall
receive, as liquidated damages, in lieu of all other claims, a severance
payment equal to one half ( 1/2) of Employee's then current annual salary
plus one half ( 1/2) of any incentive compensation paid to Employee during
the immediately preceding twelve (12) months, to be paid in full on the
--
last day of the month following the date of said termination. The
responsibility for making such severance payment shall be allocated among
Employers in whatever manner they deem appropriate. In no event shall the
total
-4-
<PAGE>
compensation paid to Employee upon the termination of his employment in
connection with a Change of Control exceed the amount permitted by Section
280G of the Internal Revenue Code (as amended) or three times Employee's
average annual compensation.
5. Regulatory Suspension.
---------------------
(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employers by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S)1818(e)(3) or (g)(1), then the obligations of Employers under
this Agreement shall be suspended as of the date of service of such notice,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, then the Employers may, in their discretion, (i) pay Employee
all or part of the compensation withheld while its contract obligations
were suspended and (ii) reinstate in whole or in part any of its
obligations which were suspended.
(b) If Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employer by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(4) or (g)(1), then all obligations of the Employers
under this Agreement shall terminate as of the effective date of the order.
6. Source of Payments. All payments provided herein shall be paid in
------------------
cash from the general funds of Employers as provided herein; no special or
separate fund shall be established by Employers; and no other segregation of
assets shall be made to assure payment. Employee shall have no right, title, or
interest in or to any investments which Employers may make to meet the
obligations hereunder.
7. Nondisclosure of Confidential Information. Employee acknowledges that
-----------------------------------------
he possesses confidential information of a special and unique nature and value
affecting and relating to both Employers' and the Holding Company's business,
including, without limitation, customer
-5-
<PAGE>
lists, deposits, business records, other trade secrets, and other similar
confidential information relating to Employers and/or the Holding Company and
the business of each (all the foregoing being hereinafter collectively referred
to as "Confidential Information"). Employee recognizes and acknowledges that all
Confidential Information is the exclusive property of Employers and/or the
Holding Company, respectively, constitutes trade secrets of Employers and/or the
Holding Company, is material and confidential, and greatly affects the goodwill
and the effective and successful conduct of the business of Employers and/or the
Holding Company. As a material inducement to Employers to enter into this
Agreement and to employ Employee, Employee covenants and agrees that he will not
at any time during the term of her 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
her own benefit or for the benefit of others. Employee further acknowledges that
said Confidential Information has material commercial value to Employers and/or
the Holding Company so long as it is not known by competitors of Employers
and/or the Holding Company and that both the Employers and the Holding Company
have taken reasonable steps to keep all such information and trade secrets
confidential.
8. Injunctions. In view of the irreparable harm and damage which
-----------
Employers and/or the Holding Company would sustain as a result of a breach by
Employee of the covenants or agreements under paragraph 7 hereof, and in view of
the lack of an adequate remedy at law to protect the interests of Employers
and/or the Holding Company, Employers and/or the Holding Company shall have the
right to receive, and Employee hereby consents to the issuance of, a permanent
injunction enjoining Employee from any violation of the covenants and agreements
set forth in paragraph 7 hereof. The foregoing remedy shall be in addition to,
and not in limitation of, any other rights or remedies to which Employers and/or
the Holding Company is/are or may be entitled at law
-6-
<PAGE>
or in equity respecting this Agreement. It is expressly agreed by the parties
hereto that the Holding Company is an intended third party beneficiary of
paragraphs 7, 8, and 9 of this Agreement and may enforce same against Employee
as if it were a party hereto.
9. Attorneys' Fees. In the event any party hereto is required to engage
---------------
in legal action against any other party hereto, either as plaintiff or
defendant, in order to enforce or defend any of its or his rights under this
Agreement, and such action results in a final judgment in favor of one or more
parties, then the party or parties against whom said final judgment is obtained
shall reimburse the prevailing party or parties for all legal fees and expenses
incurred by the prevailing party or parties in asserting or defending its or his
rights hereunder.
10. Effect of Prior Agreements. This Agreement contains the entire
--------------------------
understanding between the parties hereto and supersedes any prior agreements
relating to employment and any contemporaneous oral agreement or understanding
by, between, or among the Employers and Employee.
11. General Provisions.
------------------
(a) Nonassignability. Neither this Agreement nor any right or
----------------
interest hereunder shall be assignable by Employee, his beneficiaries or
legal representatives, without the written consent of Employers; provided,
however, that nothing in this paragraph 11(a) shall preclude (i) Employee
from designating a beneficiary to receive any benefits payable hereunder
upon his death, or (ii) the executors, administrators, or other legal
representatives of Employee or his estate from assigning any rights
hereunder to the person or persons entitled thereto.
(b) No Attachment. Except as required by law, no right to receive
-------------
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment,
-7-
<PAGE>
levy, and any attempt, voluntary or involuntary, to effect any such action
shall be null, void, and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and
-----------------
inure to the benefit of, the Employers and Employee and their respective
heirs, successors, assigns, and legal representatives.
12. Modification and Waiver.
-----------------------
(a) Amendment of Agreement. This Agreement may not be modified or
----------------------
amended except by an instrument in writing, signed by the parties hereto,
and which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to
------
have been waived, nor shall there be any estoppel against the enforcement
of any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
13. Severability. If for any reason any provision of this Agreement is
------------
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
-8-
<PAGE>
14. Headings. The headings of paragraphs herein are included solely for
--------
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
15. Governing Law. This Agreement has been executed and delivered in the
-------------
State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
16. Rights of Third Parties. Nothing herein expressed or implied is
-----------------------
intended to or shall be construed to confer upon or give to any person, firm, or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement, except as expressly set
forth in paragraph 8 hereof.
17. Notices. All notices, requests, demands, and other communications
-------
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the United States by registered or certified mail,
or personally delivered, to the party entitled thereto at the address stated
below or to such changed address as the addressee may have given by a similar
notice:
To Employers: Chairman, Compensation Committee
Board of Directors
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
Copy to: Steven S. Dunlevie, Esq.
Womble Carlyle Sandridge & Rice, PLLC
Suite 700
1275 Peachtree Street
Atlanta, Georgia 30309
To Employee: Mr. William P. Shaver
1295 Cedar Keys Court
Stone Mountain, Georgia 30083
-9-
<PAGE>
IN WITNESS WHEREOF, Employers have caused this Agreement to be
executed and its seal to be affixed hereunto by their duly authorized officers,
and Employee has signed this Agreement under seal, as of the Effective Date.
ATTEST: PREMIER BANK
/s/ By: /s/ Darrell D. Pittard
- --------------------------- ---------------------------
Secretary Darrell D. Pittard
(BANK SEAL) Chairman of the Board
ATTEST: THE BANK OF GWINNETT COUNTY
/s/ By: /s/ Glenn S. White
- --------------------------- ---------------------------
Secretary Glenn S. White
(BANK SEAL) President
/s/ /s/ William P. Shaver (SEAL)
- --------------------------- --------------------------------
Witness William P. Shaver
-10-
<PAGE>
EXHIBIT 10.7
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT ("Agreement") is made and entered into effective as of the
2nd day of July, 1998 (the "Effective Date"), by and among FIRST COMMUNITY BANK
OF HENRY COUNTY ("Employer"), PREMIER BANCSHARES, INC. ("Holding Company"), and
CHARLES B. BLACKMON ("Employee").
WITNESSETH:
WHEREAS, Employer is a wholly owned subsidiary of Holding Company;
WHEREAS, the Board of Directors of Employer considers the establishment and
maintenance of highly competent and skilled management personnel for Employer to
be essential to protecting and enhancing the best interests of Employer;
WHEREAS, the Board of Directors of Employer is desirous of inducing
Employee to remain in the employ of Employer, subject to the terms and
conditions hereof;
WHEREAS, Employee is desirous of remaining in the employ of Employer,
subject to the terms and conditions hereof;
WHEREAS, Holding Company has joined in this Agreement for the sole purposes
of making provision for Employee's employment upon the merger of Employer into a
wholly owned subsidiary of Holding Company referred to in paragraph 2 of this
Agreement, granting the stock options referred to in paragraph 4(b) of this
Agreement, transferring the title to the automobiles referred to in paragraph
4(c) of this Agreement, and becoming the beneficiary of the provisions found in
paragraphs 8, 9 and 11 of this Agreement;
WHEREAS, Employee acknowledges that at no time within two years of the
initiation of the business combination of Holding Company and The Bank Holding
Company, a Georgia bank holding company ("BHC"), and at no time subsequent to
the initiation of said business combination and prior to the consummation of
said business combination, was he irrevocably granted, issued, or awarded by
Holding Company or BHC any options to purchase any shares of stock in Holding
Company or BHC, nor was he irrevocably granted, issued or awarded by Holding
Company or BHC any right or entitlement in or to any options to purchase any
shares of stock in Holding Company or BHC; and
<PAGE>
WHEREAS, the parties agree that the provisions of this Agreement shall
control with respect to the rights and obligations of the parties resulting from
the employment of Employee by Employer;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. DEFINITIONS. The following terms used in this Agreement shall have the
-----------
following meanings:
(a) "Base Salary" shall mean the annual compensation (excluding
Incentive Compensation as defined in (c) of this paragraph and other
benefits) payable or paid to Employee pursuant to paragraph 4(a) of this
Agreement.
(b) "Event of Termination" shall mean the termination by Employer of
Employee's employment under this Agreement by written notice delivered to
Employee for any reason other than Termination for Cause as defined in (d)
-----
of this paragraph.
(c) "Incentive Compensation" shall mean that compensation payable or
paid to Employee pursuant to paragraph 4(b) of this Agreement.
(d) "Termination for Cause" shall have the meaning provided in
paragraph 6(a) of this Agreement.
2. EMPLOYMENT. Employer agrees to continue Employee in its employ, and
----------
Employee agrees to remain in the employ of Employer, as President of Employer,
for the period stated in paragraph 3(a) hereof and upon the other terms and
conditions provided herein; provided that, in the event that Holding Company
causes Employer to merge with and into one of its other wholly-owned
subsidiaries, then Employee shall serve as the President of the Henry County
division thereof and the obligations of Employer under this Agreement shall be
assumed by such subsidiary. Employee agrees to perform faithfully such services
as are reasonably consistent with his position and shall from time to time be
assigned to him by the Board of Directors of Employer, or an individual
designated by such Board, in a trustworthy and businesslike manner for the
purpose of advancing the interests of Employer. The Board of Directors of
Employer may also from time to time change Employee's position or alter his
duties and responsibilities and assign a new position or new duties
-2-
<PAGE>
and responsibilities that are similar in scope and nature to Employee's existing
position, duties and responsibilities without invalidating this Agreement or
effecting the termination of Employee. At all times, Employee shall manage and
conduct the business of Employer in accordance with the policies established by
the Board of Directors of Employer, and in compliance with applicable
regulations promulgated by governing regulatory agencies. Responsibility for
the supervision of Employee shall rest with the Board of Directors of Employer,
or an individual designated by such Board, which or who, as applicable, shall
review Employee's performance at least annually. The Board of Directors of
Employer shall also have the authority to terminate Employee, subject to the
provisions outlined in paragraph 6 of this Agreement.
3. TERM AND DUTIES.
---------------
(a) Term of Employment. This Agreement and the period of Employee's
------------------
employment under this Agreement shall be deemed to have commenced as of the
Effective Date and shall continue for a period of twenty-four (24) full
--
calendar months thereafter, unless earlier terminated pursuant to this
Agreement or unless Employee dies before the end of such twenty-four (24)
--
months, in which case the period of employment shall be deemed to continue
until the end of the month of such death. On each anniversary of the
Effective Date, this Agreement and Employee's Term of Employment shall be
extended for an additional twelve (12) month period; provided that the
--
Board of Directors of Employer determines that the performance of Employee
has met said Boards' requirements and standards and, further, that this
Agreement shall be extended.
(b) Performance of Duties. During the period of employment hereunder,
---------------------
except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote substantially all of
his business time, attention, skill, and efforts to the faithful
performance of his duties hereunder. Employee shall be entitled to
reasonable participation as a member in community, civic, or similar
organizations and the pursuit of personal investments which do not present
any material conflict of interest with Employer, or otherwise unfavorably
affect the performance of Employee's duties pursuant to this Agreement.
-3-
<PAGE>
(c) Office of Employee. The office of Employee shall be located in
------------------
McDonough, Georgia, or at such other location within the State of Georgia
as Employer may from time to time designate; provided, however, that, in
the event such relocation required Employee to move his principal
residence, Employer shall reimburse Employee for all his reasonable moving
expenses.
(d) No Other Agreement. The Employee shall have no employment
------------------
contract or other written or oral agreement concerning employment with any
entity or person other than Employer or Holding Company during the term of
his employment under this Agreement.
(e) Uniqueness of Employee's Services. Employee hereby represents
---------------------------------
that the services to be performed by him under the terms of this Agreement
are of a special, unique, unusual, extraordinary, and intellectual
character which gives them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages and in an action at law.
Accordingly, Employee expressly agrees that Employer, in addition to any
rights or remedies which Employer may possess, shall be entitled to
injunctive and other equitable relief to prevent the breach of this
Agreement by Employee.
4. COMPENSATION.
------------
(a) Salary. Subject to the provisions of paragraph 7 hereof,
------
Employers shall pay Employee, as compensation for serving as President of
Employers, an initial Base Salary of $140,000.00 ; such initial Base
------------
Salary, or any increased Base Salary, shall be payable in substantially
equal installments in accordance with the Employers' normal pay practices,
but not less frequently than monthly. The Board of Directors of Employer,
if warranted in its discretion, may increase Employee's Base Salary to
reflect Employee's performance.
(b) Incentive Compensation.
----------------------
(i) During the Term of Employment, Employee shall participate in
any incentive bonus plans maintained by Employer its executive
officers. It is contemplated that an annual incentive bonus plan will
be maintained by Employer which will establish individual performance
goals for Employee each and every fiscal year during the Term of
Employment. The payment to Employee of any Incentive Compensation as
aforesaid shall be made by Employer in accordance with
-4-
<PAGE>
the policy or policies established by the Board of Directors of
Employer or any committee designated thereby. During the Term of
Employment, Employee shall receive a minimum Total Compensation of
$215,000.00, annually. "Employee's Total Compensation" shall be equal
-----------
to the sum of Employee's Base Salary plus any incentive bonus paid to
Employee under this paragraph 4(b)(i).
(ii) In recognition of the services to be provided by Employee
to Employer and as an incentive for Employee to remain in the employ
of Employer, Holding Company shall grant to Employee on the later of
the Effective Date of this Agreement or July 1, 1998, a non-qualified
option to purchase 10,000 shares of Holding Company common stock at an
exercise price of fifteen dollars ($15.00) per share; provided that
said options shall vest and may be exercised by Employee on the
earlier to occur of: (i) six (6) months from the Effective Date of
this Agreement, provided Employee continues in the employ of Employer
pursuant to the terms of this Agreement, or (ii) termination by
Employer of Employee's employment hereunder other than as a result of
a Termination for Cause pursuant to paragraph 6(a) of this Agreement.
(iii) In recognition of the services to be provided by Employee
to Employer and as an incentive for Employee to remain in the employ
of Employer, Holding Company shall grant to Employee on the later of
the Effective Date of this Agreement or July 1, 1998, an option to
purchase 3,000 shares of Holding Company common stock at an exercise
price equal to the average closing price of Holding Company Common
Stock during the ten (10) consecutive trading days immediately prior
to the Closing of the merger of The Bank Holding Company with and into
Premier Bancshares, Inc. (the "Merger"), as reported by the American
Stock Exchange.
(iv) In recognition of the services to be provided by Employee
to Employer and as an incentive for Employee to remain in the employ
of Employer, Holding Company shall grant to Employee in January 1999
an option to purchase
-5-
<PAGE>
3,000 shares of Holding Company common stock at an exercise price
equal to the average closing price of Holding Company Common Stock
during the ten (10) consecutive trading days immediately prior to the
Closing of the merger of The Bank Holding Company with and into
Premier Bancshares, Inc. (the "Merger"), as reported by the American
Stock Exchange.
(v) As further incentive for Employee to remain in the employ
of Employer, Holding Company shall grant to Employee on the first
(1st) anniversary of the Effective Date of this Agreement a non-
qualified option to purchase 10,000 shares of Holding Company common
stock at an exercise price equal to sixty-five percent (65%) of the
average closing price of Holding Company Common Stock during the ten
(10) consecutive trading days immediately prior to the first (1st)
anniversary of the Effective Date of this Agreement, as reported by
the American Stock Exchange.
(vi) As further incentive for Employee to remain in the employ
of Employer, Holding Company shall grant to Employee on the second
(2nd) anniversary of the Effective Date of this Agreement a non-
qualified option to purchase 10,000 shares of Holding Company common
stock at an exercise price equal to eighty-five percent (85%) of the
average closing price of Holding Company Common Stock during the ten
(10) consecutive trading days immediately prior to the second (2nd)
anniversary of the Effective Date of this Agreement, as reported by
the American Stock Exchange.
(vii) Notwithstanding anything contained in this Agreement to
the contrary, any increase to Employee's Total Compensation and other
Incentive Compensation shall be (i) in compliance with regulations,
bulletins, pronouncements, directives, or orders issued or promulgated
by any governing regulatory agency and with any agreements by and
between Employer and such regulatory agencies, (ii) consistent with
the safe and sound operation of Employer, (iii) closely monitored by
the Board of Directors of Employer and (iv) comparable to such
compensation paid to persons
-6-
<PAGE>
of similar responsibilities and duties in other insured institutions
of similar size, in similar locations, and under similar circumstances
including financial condition and profitability.
(viii) As an incentive for Employee's assistance in the extra
effort needed to close a merger, Employer will, if the conditions set
forth below are met, pay to Employee in cash within thirty (30) days
of the Effective Date of this Agreement, a lump-sum bonus upon
completion the Merger, based on the following schedule: $25,000.00, if
---------
the Merger is closed on or before June 30, 1998; $20,000.00, if the
---------
Merger is closed after June 30, 1998, and before August 1, 1998; or
$15,000.00 if the Merger is closed after July 31, 1998, and before
----------
September 1, 1998.
(c) Automobile Allowance.
--------------------
(i) Holding Company shall, on the Effective Date of this
Agreement, cause to be transferred to Employee the title to that
certain 1990 Buick owned by The Bank of Spalding County.
(ii) Employer shall, on the Effective Date of this Agreement,
transfer to Employee the title to that certain 1996 Buick owned by
Employer, for and in consideration of a payment to Employer by
Employee equal to the fair market value of said vehicle at the
Effective Date hereof.
(iii) Employer shall provide Employee with an automobile
allowance of $800 per month.
---
(d) "Golden Parachute" Provision. Notwithstanding anything contained
----------------------------
in this Agreement to the contrary, any payments made to Employee pursuant
to this Agreement, or otherwise, are subject to and conditioned upon their
compliance with 12 U.S.C. (S) 1828(k) and any regulations promulgated
thereunder.
5. PARTICIPATION IN BENEFIT PLANS. The payments provided in paragraph 4
------------------------------
and 6 hereof are in addition to any benefits to which Employee may be, or may
become, entitled to, under any group hospitalization, health, dental care, or
sick leave plan; life insurance or death benefit plan; travel or accident
insurance; pension or retirement plan; stock option or ownership plan; or other
present or future group employee benefit plan or program for which senior
executive officers of
-7-
<PAGE>
Employer shall be or shall become eligible. Said benefits shall include,
without limitation, major medical/dental insurance for Employee and his
dependents.
6. PAYMENTS TO EMPLOYEE UPON TERMINATION OF EMPLOYMENT. The Board of
---------------------------------------------------
Directors of Employer may terminate Employee's employment under this Agreement
at any time; but any termination other than Termination for Cause shall not
prejudice Employee's right to compensation or other benefits under this
Agreement. Employee may voluntarily terminate his employment under this
Agreement. The rights and obligations of Employer and Employee in the event of
such termination are set forth in this paragraph 6 as follows:
(a) Termination for Cause. Employee shall have no right to
---------------------
compensation or other benefits for any period after a Termination for
Cause. Termination for Cause shall be determined by the Board of Directors
of Employer in the reasonable exercise of its discretion and acting in good
faith, and shall include termination because of Employee's personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duties
involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule, or regulation (other than traffic
violations or similar offenses), or a final cease-and-desist order, the
regulatory suspension or removal of Employee as defined in paragraphs 7(a)
and (b) hereof, the termination of this Agreement under paragraphs 7(c) and
(d) hereof, the failure of Employee to follow reasonable written
instructions of the Board of Directors of Employer, or a material breach of
Employee of any provision of this Agreement. Termination for Cause by
Employer shall be determined by, and shall occur only upon the passage of a
resolution by a vote of not less than a two-thirds of Employer's Board of
Directors specifying Employee's Termination for Cause and the grounds
therefor, after reasonable notice to Employee and an opportunity for him to
be heard before a meeting of the Board of Directors called in accordance
with the By-Laws of Employer. Thereafter, Employee shall be deemed to be
in material breach of this Agreement and shall have no right to receive
compensation or other benefits under this Agreement for any period
following such Termination for Cause. This provision on Termination for
Cause shall control over any and all other provisions relating to discharge
or termination for cause contained in any and all other agreements between
Employer and Employee.
-8-
<PAGE>
(b) Event of Termination. Upon the occurrence of an Event of
--------------------
Termination, Employer shall pay to Employee, or in the event of his
subsequent death, to his designated beneficiary or beneficiaries, or to his
estate, as the case may be, as liquidated damages, in lieu of all other
claims, a severance payment equal to the remaining portion of Employee's
then current Base Salary pro-rated from the date of said Event of
Termination to the expiration of the then current term of this Agreement as
stated in paragraph 3(a) of this Agreement, to be paid in full on the last
day of the month following the date of said Event of Termination.
(c) Voluntary Termination of Employment. Employee shall have no right
-----------------------------------
to compensation or other benefits under this Agreement for any period
following the voluntary termination of Employee's employment by Employee,
except as provided in paragraph 6(b) hereof.
7. REGULATORY SUSPENSION.
---------------------
(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employer by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(3) or (g)(1), the obligations of Employer under this
Agreement shall be suspended as of the date of service of such notice,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, Employer may in its discretion (i) pay Employee all or part of
the compensation withheld while its contract obligations were suspended and
(ii) reinstate in whole or in part any of its obligations which were
suspended.
(b) If Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employer by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(4) or (g)(1), all obligations of Employer under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the parties hereto shall not be affected.
(c) If Employer is in "default" as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act, all obligations under this Agreement shall
terminate as of the date of default, but this paragraph shall not affect
any vested rights of the parties hereto.
-9-
<PAGE>
(d) All obligations under this Agreement shall be terminated, except
to the extent that it may be determined by any state or federal regulatory
agency or body having authority over Employer that continuation of this
Agreement is necessary for the continued operation of Employer, at any time
the Federal Deposit Insurance Corporation (the "FDIC") enters into an
agreement to provide assistance to or on behalf of Employer under the
authority contained in Section 13(c) of the Federal Deposit Insurance Act,
at any time the FDIC approves a supervisory merger to resolve problems
related to the operation of Employer, or when Employer is determined by the
Georgia Department of Banking and Finance, the Board of Governors of the
Federal Reserve System (or the Federal Reserve Bank of Atlanta acting
pursuant to delegated authority), or the FDIC to be in an unsafe and
unsound condition. Any rights of the parties hereto that have already
vested, however, shall not be affected by such action.
8. COVENANTS AGAINST COMPETITION AND SOLICITATION. Employee acknowledges
----------------------------------------------
that he has performed services and/or will perform services hereunder that
directly affect Employer's business presently conducted (among other areas)
within the limits of Henry County and Spalding 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.
(a) For the period of Employee's employment with Employer and for a
period of six (6) months following the termination of such employment, for
whatever reason, Employee covenants and agrees that he shall not within the
limits of Henry County and Spalding County, Georgia, compete with Employer
or Holding Company by performing banking services that require performance
of duties substantially identical to those performed on behalf of Employer
by Employee, to-wit, as a member of management, supervisor, or executive
employee for any bank, bank holding company, or other financial institution
or financial services company that is a competitor of Employer or Holding
Company.
(b) For the period of Employee's employment with Employer and for a
period of six (6) months following the termination of such employment, for
whatever reason, Employee shall not: (i) for himself or any other party,
solicit, directly or indirectly, any
-10-
<PAGE>
clients or prospective clients of Employer with whom he personally had
business contact on Employer's behalf at any time during the last twenty-
four (24) months he worked at Employer to do any business with another
bank, bank holding company, or other financial institution or financial
services company in competition with Employer or Holding Company; and (ii)
employ or attempt to employ or assist in employing any employee of Employer
or Holding Company for the purpose of having such employee perform services
for any bank, bank holding company, or other financial institution or
financial services company in competition with the business of Employer or
Holding Company.
9. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Employee acknowledges that
-----------------------------------------
he possesses confidential information of a special and unique nature and value
affecting and relating to both Employer's and the Holding Company's business,
including, without limitation, the identity of the customers, deposits, business
records, other trade secrets, and other similar confidential information
relating to Employer and/or the Holding Company and the business of each (all
the foregoing being hereinafter collectively referred to as "Confidential
Information"). Employee recognizes and acknowledges that all Confidential
Information is the exclusive property of Employer and/or the Holding Company
respectively, constitutes trade secrets of Employer and/or the Holding Company,
is material and confidential, and greatly affects the goodwill and the effective
and successful conduct of the business of Employer and/or the Holding Company.
As a material inducement to Employer to enter into this Agreement and to employ
Employee, 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 Employer and/or the Holding Company
so long as it is not known by competitors of Employer and/or the Holding Company
and that both Employer and the Holding Company have taken reasonable steps to
keep all such information and trade secrets confidential.
10. SOURCE OF PAYMENTS. All payments provided in paragraphs 4 and 6
------------------
hereof, except for the stock options described in paragraph 4(b) hereof, shall
be paid in cash from the general funds
-11-
<PAGE>
of Employer and/or the Holding Company as provided herein, and no special or
separate fund shall be established by Employer and/or the Holding Company, and
no other segregation of assets shall be made to assure payment. Employee shall
have no right, title, or interest in or to any investments which Employer and/or
the Holding Company may make to meet its obligations hereunder.
11. INJUNCTIONS. In view of the irreparable harm and damage which
-----------
Employer and/or the Holding Company would sustain as a result of a breach by
Employee of the covenants or agreements under paragraphs 8 and 9 hereof, and in
view of the lack of an adequate remedy at law to protect the interests of
Employer and/or the Holding Company, Employer and/or the Holding Company shall
have the right to receive, and Employee hereby consents to the issuance of, a
permanent injunction of six (6) months in duration with respect to paragraph
8(a) hereof and one (1) year in duration with respect to paragraph 8(b) and
-
paragraph 9 hereof enjoining Employee from any violation of the covenants and
agreements set forth in paragraphs 8 and 9 hereof. The foregoing remedy shall
be in addition to, and not in limitation of, any other rights or remedies to
which Employer and/or the Holding Company is or may be entitled at law or in
equity respecting this Agreement.
12. ATTORNEYS' FEES. In the event any party hereto is required to engage
---------------
in legal action against any other party hereto, either as plaintiff or
defendant, in order to enforce or defend any of its or his rights under this
Agreement, and such action results in a final judgment in favor of one or more
parties, then the party or parties against whom said final judgment is obtained
shall reimburse the prevailing party or parties for all legal fees and expenses
incurred by the prevailing party or parties in asserting or defending its or his
rights hereunder.
13. FEDERAL INCOME TAX WITHHOLDING. Employer and/or Holding Company may
------------------------------
withhold from any benefits payable under this Agreement all federal, state,
city, or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
14. EFFECT OF PRIOR AGREEMENTS. This Agreement contains the entire
--------------------------
understanding between the parties hereto and supersedes any prior employment
agreement and any contemporaneous oral agreement or understanding by, between,
or among Employer, Holding Company, and Employee.
15. GENERAL PROVISIONS.
------------------
-12-
<PAGE>
(a) Nonassignability. Neither this Agreement nor any right or
----------------
interest hereunder shall be assignable by Employee, his beneficiaries or
legal representatives, without the written consent of Employer; provided,
however, that nothing in this paragraph 15(a) shall preclude (i) Employee
from designating a beneficiary to receive any benefits payable hereunder
upon his death, or (ii) the executors, administrators, or other legal
representatives of Employee or his estate from assigning any rights
hereunder to the person or persons entitled thereto. Employer may assign
its obligations under this Agreement to any wholly-owned subsidiary of
Holding Company into which it is merged or consolidated.
(b) No Attachment. Except as required by law, no right to receive
-------------
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void,
and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and
-----------------
inure to the benefit of, Holding Company, Employer, and Employee and their
respective heirs, successors, assigns, and legal representatives.
16. MODIFICATION AND WAIVER.
-----------------------
(a) Amendment of Agreement. This Agreement may not be modified or
----------------------
amended except by an instrument in writing, signed by the parties hereto,
and which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to
------
have been waived, nor shall there be any estoppel against the enforcement
of any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
17. SEVERABILITY. If for any reason any provision of this Agreement is
------------
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other
-13-
<PAGE>
provision shall to the full extent consistent with law continue in full force
and effect. If any provision of this Agreement shall be held invalid in part,
such invalidity shall in no way affect the rest of such provision not held so
invalid, and the rest of such provision, together with all other provisions of
this Agreement, shall to the full extent consistent with law continue in full
force and effect.
18. HEADINGS. The headings of paragraphs herein are included solely for
--------
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
19. GOVERNING LAW. This Agreement has been executed and delivered in the
-------------
State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
20. RIGHTS OF THIRD PARTIES. Nothing herein expressed or implied is
-----------------------
intended to or shall be construed to confer upon or give to any person, firm, or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement.
21. NOTICES. All notices, requests, demands, and other communications
-------
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the United States by registered or certified mail,
or personally delivered, to the party entitled thereto at the address stated
below or to such changed address as the addressee may have given by a similar
notice:
To Employer: Chairman of the Board
First Community Bank of Henry County
12 North Cedar Street
McDonough, Georgia 30253
Copied to: Chairman of the Board
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 East Paces Ferry Road
Atlanta, Georgia 30326
-and-
Steven S. Dunlevie, Esq.
Womble Carlyle Sandridge & Rice, PLLC
Suite 700
-14-
<PAGE>
1275 Peachtree Street
Atlanta, Georgia 30309
To Employee: Mr. Charles B. Blackmon
12 North Cedar Street
McDonough, Georgia 30253
IN WITNESS WHEREOF, Employer and Holding Company have caused this
Agreement to be executed and its seal to be affixed hereunto by its duly
authorized officers, and Employee has signed this Agreement, as of the Effective
Date.
ATTEST: FIRST COMMUNITY BANK OF HENRY COUNTY
/s/ By: /s/
- ----------------------------- ---------------------------
Secretary ---------------------------
(CORPORATE SEAL)
ATTEST: PREMIER BANCSHARES, INC.
/s/ Barbara J. Burtt By: /s/ Darrell D. Pittard
- ----------------------------- ----------------------------
Barbara J. Burtt, Secretary Darrell D. Pittard, Chairman and
Chief Executive Officer
(CORPORATE SEAL)
/s/ /s/ Charles B. Blackmon (SEAL)
- ----------------------------- ---------------------------------
Witness Charles B. Blackmon
-15-
<PAGE>
EXHIBIT 10.8
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 1st day of January, 1998, by and between PREMIER BANCSHARES, INC.
("Employer"), and JO S. HILL.
W I T N E S S E T H:
WHEREAS, the Board of Directors of Employer consider the establishment
and maintenance of highly competent and skilled management personnel for
Employer to be essential to protecting and enhancing its best interests;
WHEREAS, the Board of Directors of Employer is desirous of inducing
Employee to remain in the employ of Employer, subject to the terms and
conditions hereof;
WHEREAS, Employee is
desirous of remaining in the employ of Employer, subject to the terms and
conditions hereof; and
WHEREAS, the parties agree that the provisions of this Agreement shall
control with respect to the rights and obligations of the parties resulting from
the employment of Employee by Employer;
NOW, THEREFORE, for and in consideration of the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definitions. The following terms used in this Agreement shall have
-----------
the following meanings:
<PAGE>
(a) "Base Salary" shall mean the annual compensation (excluding
Incentive Compensation as defined in (e) of this paragraph and other
benefits) payable or paid to Employee pursuant to paragraph 4(a) of this
Agreement.
(b) "Change of Control" shall be deemed to have occurred if:
(i) Upon the consummation of any transaction in which any person
(or persons acting in concert), partnership, corporation, or other
organization shall own, control, or hold with the power to vote more
than fifty percent (50%) of any class of voting securities of the
---
Holding Company; or
(ii) Upon the consummation of any transaction in which Employer,
or substantially all of the assets of Employer, shall be sold or
transferred to, or consolidated or merged with, another corporation;
provided, however, if Employer shall become a subsidiary of another
corporation or shall be merged or consolidated into another corporation and
a majority of the outstanding voting shares of the parent or surviving
corporation are owned immediately after such acquisition, merger, or
consolidation by the owners of a majority of the voting shares of Employer
immediately before such acquisition, merger, or consolidation, then no
Change of Control shall be deemed to have occurred.
(c) "Disability" shall mean the complete inability of Employee to
perform her duties for Employer under this Agreement on a full-time basis,
as determined by an independent physician selected with the approval of
Employer and Employee.
(d) "Event of Termination" shall mean the termination by Employer of
Employee's employment under this Agreement by written notice delivered to
Employee for any reason other than Termination for Cause as defined in (f)
of this paragraph or termination
-2-
<PAGE>
following a continuous period of disability exceeding six (6) calendar
-
months pursuant to paragraph 6(a) of this Agreement.
(e) "Incentive Compensation" shall mean that compensation payable or
paid to Employee pursuant to paragraph 4(b) of this Agreement.
(f) "Termination for Cause" shall have the meaning provided in
paragraph 7(a) of this Agreement.
2. Employment. Employer agrees to continue Employee in their employ, and
----------
Employee agrees to remain in the employ of Employer, as Executive Vice President
of Employer, for the period stated in paragraph 3(a) hereof and upon the other
terms and conditions herein provided. Employee agrees to perform faithfully such
services as are reasonably consistent with her positions and shall from time to
time be assigned to her by the Board of Directors of Employer in a trustworthy
and businesslike manner for the purpose of advancing the interests of Employer.
At all times, Employee shall manage and conduct the business of Employer in
accordance with the policies established by the Board of Directors of Employer,
and in compliance with applicable regulations promulgated by governing
regulatory agencies. Responsibility for the supervision of Employee shall rest
with the Board of Directors of Employer, which shall review Employee's
performance at least annually. The Board of Directors of Employer shall also
have the authority to terminate Employee, subject to the provisions outlined in
paragraph 7 of this Agreement.
3. Term and Duties.
---------------
(a) Term of Employment. This Agreement and the period of Employee's
------------------
employment under this Agreement shall be deemed to have commenced as of the
Effective Date and shall continue for a period of twelve (12) full calendar
--
months thereafter, unless earlier terminated pursuant to this Agreement or
unless Employee dies before the end of such
-3-
<PAGE>
twelve (12) month period provided that the Board of Directors of Employer
--
determines that the performance of Employee has met said Board's
requirements and standards and further that this Agreement shall be
extended.
(b) Performance of Duties. During the period of employment hereunder,
---------------------
except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote substantially all of
her business time, attention, skill, and efforts to the faithful
performance of her duties hereunder. Employee shall be entitled to
reasonable participation as a member in community, civic, or similar
organizations and the pursuit of personal investments which do not present
any material conflict of interest with Employer, or otherwise unfavorably
affect the performance of Employee's duties pursuant to this Agreement.
Employee may be asked, form time to time, to serve as an officer or
director of any subsidiary of Employer but shall be entitled to no
additional compensation for such services.
(c) Office of Employee. The office of Employee shall be located at
------------------
the principal office of Employer in Atlanta, Georgia, or at such other
location within the State of Georgia as Employer may from time to time
designate; provided, however, that, in the event such relocation requires
Employee to move her principal residence, Employer shall reimburse Employee
for all her reasonable moving expenses.
(d) No Other Agreement. Employee shall have no employment contract or
------------------
other written or oral agreement concerning employment with any entity or
person other than Employer and during the term of her employment under this
Agreement.
(e) Uniqueness of Employee's Services. Employee hereby represents
---------------------------------
that the services to be performed by her under the terms of this Agreement
are of a special, unique,
-4-
<PAGE>
unusual, extraordinary, and intellectual character which gives them a
peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages and in an action at law. Accordingly, Employee
expressly agrees that Employer, in addition to any rights or remedies which
Employer may possess, shall be entitled to injunctive and other equitable
relief to prevent the breach of this Agreement by Employee.
4. Compensation and Reimbursement of Expenses.
------------------------------------------
(a) Salary. Subject to the provisions of paragraph 7 hereof, Employer
------
shall pay Employee, as compensation for serving as Executive Vice President
of Employer, an initial Base Salary of $115,500.00 ; such initial Base
-----------
Salary, or any increased Base Salary, shall be payable in substantially
equal installments in accordance with Employer' normal pay practices, but
not less frequently than monthly. The Board of Directors of Employer, if
warranted in their discretion, may increase Employee's Base Salary to
reflect Employee's performance.
(b) Incentive Compensation. During the Term of Employment and in
----------------------
addition to the aforesaid Base Salary, Employee shall be entitled to such
additional Incentive Compensation as may be awarded from time to time by
the Board of Directors of Employer or any committee(s) designated thereby
in its discretion. Notwithstanding anything contained in this Agreement to
the contrary, any increase to Employee's Base Salary and any Incentive
Compensation paid to Employee shall be (i) in compliance with regulations,
thrift bulletins, pronouncements, directives, or orders issued or
promulgated by any governing regulatory agency and with any agreements by
and between Employer and such regulatory agencies, (ii) consistent with the
safe and sound operation of Employer, (iii) closely monitored by the Board
of Directors of Employer and (iv) comparable to such compensation
-5-
<PAGE>
paid to persons of similar responsibilities and duties in other insured
institutions of similar size, in similar locations, and under similar
circumstances including financial condition and profitability.
(c) "Golden Parachute" Provision. Notwithstanding anything contained
----------------------------
in this Agreement to the contrary, any payments made to Employee pursuant
to this Agreement, or otherwise to Employee, are subject to and conditioned
upon their compliance with 12 U.S.C. (S) 1828(k) and any regulations
promulgated thereunder.
5. Participation in Benefit Plans. The payments provided in paragraph 4,
------------------------------
6, and 7 hereof are in addition to any benefits to which Employee may be, or may
become, entitled to, under any group hospitalization, health, dental care, or
sick leave plan; life insurance or death benefit plan; travel or accident
insurance; pension or retirement plan; stock option or ownership plan; or other
present or future group employee benefit plan or program for which senior
executive officers of Employer shall be or shall become eligible. Said benefit
shall include, without limitation, major medical/dental insurance for Employee
and her dependents.
6. Benefits Payable Upon Disability.
--------------------------------
(a) Disability Benefits. In the event of the Disability of Employee,
-------------------
Employer shall continue to pay Employee one hundred percent (100%) of
-----
Employee's then current Base Salary pursuant to paragraph 4(a) during the
first six (6) months of a continuous period of disability. It is provided,
-
however, that in the event Employee is disabled for a continuous period
exceeding six (6) months, Employer may, at its election, terminate this
-
Agreement, in which event payment of Employee's Base Salary shall cease.
-6-
<PAGE>
(b) Disability Benefit Offset. Any amounts payable under paragraph
-------------------------
6(a) hereof shall be reduced by any amounts paid to Employee under any
other disability program or policy of insurance maintained by Employer.
7. Payments to Employee Upon Termination of Employment. The Board of
---------------------------------------------------
Directors of Employer may terminate Employee's employment under this Agreement
at any time; but any termination other than Termination for Cause shall not
prejudice Employee's right to compensation or other benefits under this
Agreement. Employee may voluntarily terminate her employment under this
Agreement. The rights and obligations of Employer and Employee in the event of
such termination are set forth in this paragraph 7 as follows:
(a) Termination for Cause. Employee shall have no right to
---------------------
compensation or other benefits for any period after a Termination for
Cause. Termination for Cause shall be determined by the Board of Directors
of Employer in the reasonable exercise of its discretion and acting in good
faith, and shall include termination because of Employee's personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duties
involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule, or regulation (other than traffic
violations or similar offenses), or a final cease-and-desist order, the
regulatory suspension or removal of Employee as defined in paragraphs 8(a)
and (b) hereof, the termination of this Agreement under paragraphs 8(c) and
(d) hereof, the failure of Employee to follow reasonable written
instructions of the Board of Directors of Employer, or a material breach of
Employee of any provision of this Agreement. Termination for Cause from
Employer shall be determined by, and shall occur only upon the passage of
a resolution by a vote of not less than a two-thirds of Employer's Board of
Directors specifying Employee's Termination for Cause and the grounds
therefor, after reasonable notice to
-7-
<PAGE>
Employee and an opportunity for her to be heard before a meeting of the
Board of Directors called in accordance with the By-Laws of Employer.
Thereafter, Employee shall be deemed to be in material breach of this
Agreement and shall have no right to receive compensation or other benefits
under this Agreement for any period following such Termination for Cause.
This provision on Termination for Cause shall control over any and all
other provisions relating to discharge or termination for cause contained
in any and all other agreements between Employer and Employee.
(b) Event of Termination Without Change of Control. Upon the
----------------------------------------------
occurrence of an Event of Termination, other than after a Change of
Control as provided in paragraph 7(c) hereof, Employee, or in the event of
her subsequent death, her designated beneficiary or beneficiaries, or her
estate, as the case may be, shall receive, as liquidated damages, in lieu
of all other claims, a severance payment equal to Employee's Total
Compensation (defined as the sum of the then current Base Salary plus any
Incentive Compensation paid to Employee during the immediately preceding
twelve (12) months), to be paid in full on the last day of the month
--
following the date of said Event of Termination.
(c) Event of Termination in Connection With a Change of Control. If,
-----------------------------------------------------------
during the term of this Agreement and within one (1) year immediately
-
following a Change of Control or within six (6) months immediately prior
-
to such Change of Control:
(i) Employee's employment with Employer under this Agreement is
terminated by an Event of Termination; or
(ii) the status, character, capacity, and circumstances of
Employee's employment as provided in paragraphs 2 and 3 of this
Agreement have been materially altered by Employer whether by a
reduction in salary,
-8-
<PAGE>
responsibilities, authority, or benefits, and Employee voluntary
terminates the employment contemplated by this Agreement for that
reason;
then Employer shall pay to Employee, or in the event of her subsequent
death, to her designated beneficiary or beneficiaries, or to her estate, as
the case may be, as liquidated damages, in lieu of all other claims, a
severance payment equal to Employee's Total Compensation, to be paid in
full on the last day of the month following the date of said Event of
Termination or Employee's voluntary termination under (ii) above. In no
event shall the total compensation paid to Employee upon the termination of
her employment in connection with a Change of Control exceed the amount
permitted by Section 280G of the Internal Revenue Code (as amended) or
three times Employee's average annual compensation. Employee's average
annual compensation shall be based on the most recent five taxable years
ending before the Change of Control (or the period during which Employee
was employed by Employer if Employee has been employed by Employer for less
than five years).
(d) Voluntary Termination of Employment. Employee shall have no right
-----------------------------------
to compensation or other benefits under this Agreement for any period
following the voluntary termination of Employee's employment by Employee,
except as provided in paragraph 7(b) or 7(c), or 7(e) hereof.
8. Regulatory Suspension.
---------------------
(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employer by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S)1818(e)(3) or (g)(1), the obligations of Employer under this
Agreement shall be suspended as of the date of service of such notice,
-9-
<PAGE>
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, then Employer may, in their discretion, (i) pay Employee all or
part of the compensation withheld while its contract obligations were
suspended and (ii) reinstate in whole or in part any of its obligations
which were suspended.
(b) If Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employer by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(4) or (g)(1), all obligations of Employer under this
Agreement shall terminate as of the effective date of the order.
9. Source of Payments. All payments provided in paragraphs 4, 6, and 7
------------------
hereof shall be paid in cash from the general funds of Employer as provided
herein, and no special or separate fund shall be established by Employer, and no
other segregation of assets shall be made to assure payment. Employee shall
have no right, title, or interest in or to any investments which Employer may
make to meet the obligations hereunder.
10. Nondisclosure of Confidential Information. Employee acknowledges that
-----------------------------------------
she possesses confidential information of a special and unique nature and value
affecting and relating to the business of Employer and its subsidiaries,
including, without limitation, customer lists, deposits, business records, other
trade secrets, and other similar confidential information relating to Employer
and its subsidiaries (all the foregoing being hereinafter collectively referred
to as "Confidential Information"). Employee recognizes and acknowledges that
all Confidential Information is the exclusive property of Employer and its
subsidiaries, respectively, constitutes trade secrets of Employer and its
subsidiaries, is material and confidential, and greatly affects the goodwill and
the effective and successful conduct of the business of Employer and its
subsidiaries. As a material inducement to Employer to enter into this Agreement
and to employ Employee, Employee
-10-
<PAGE>
covenants and agrees that she will not at any time during the term of her
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 her own benefit or for the benefit of
others. Employee further acknowledges that said Confidential Information has
material commercial value to Employer and its subsidiaries so long as it is not
known by competitors of Employer and its subsidiaries and that Employer and its
subsidiaries have taken reasonable steps to keep all such information and trade
secrets confidential.
11. Injunctions. In view of the irreparable harm and damage which Employer
-----------
and its subsidiaries would sustain as a result of a breach by Employee of the
covenants or agreements under paragraph 10 hereof, and in view of the lack of an
adequate remedy at law to protect the interests of Employer and its
subsidiaries, Employer shall have the right to receive, and Employee hereby
consents to the issuance of, a permanent injunction enjoining Employee from any
violation of the covenants and agreements set forth in paragraph 11 hereof. The
foregoing remedy shall be in addition to, and not in limitation of, any other
rights or remedies to which Employer is or may be entitled at law or in equity
respecting this Agreement.
12. Attorneys' Fees. In the event any party hereto is required to engage
---------------
in legal action against any other party hereto, either as plaintiff or
defendant, in order to enforce or defend any of its or her rights under this
Agreement, and such action results in a final judgment in favor of one or more
parties, then the party or parties against whom said final judgment is obtained
shall reimburse the prevailing party or parties for all legal fees and expenses
incurred by the prevailing party or parties in asserting or defending its or her
rights hereunder.
-11-
<PAGE>
13. Federal Income Tax Withholding. Employer may withhold from any
------------------------------
benefits payable under this Agreement all federal, state, city, or other taxes
as shall be required pursuant to any law or governmental regulation or ruling.
14. Effect of Prior Agreements. This Agreement contains the entire
--------------------------
understanding between the parties hereto and supersedes any prior employment
agreement any contemporaneous oral agreement or understanding by, between, or
among Employer, Employer's subsidiaries and Employee.
15. General Provisions.
------------------
(a) Nonassignability. Neither this Agreement nor any right or
----------------
interest hereunder shall be assignable by Employee, her beneficiaries or
legal representatives, without the written consent of Employer; provided,
however, that nothing in this paragraph 15(a) shall preclude (i) Employee
from designating a beneficiary to receive any benefits payable hereunder
upon her death, or (ii) the executors, administrators, or other legal
representatives of Employee or her estate from assigning any rights
hereunder to the person or persons entitled thereto.
(b) No Attachment. Except as required by law, no right to receive
-------------
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void,
and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and
-----------------
inure to the benefit of, Employer and Employee and their respective heirs,
successors, assigns, and legal representatives.
-12-
<PAGE>
17. Modification and Waiver.
-----------------------
(a) Amendment of Agreement. This Agreement may not be modified or
----------------------
amended except by an instrument in writing, signed by the parties hereto,
and which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to
------
have been waived, nor shall there be any estoppel against the enforcement
of any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
18. Severability. If for any reason any provision of this Agreement is
------------
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
19. Headings. The headings of paragraphs herein are included solely for
--------
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
-13-
<PAGE>
20. Governing Law. This Agreement has been executed and delivered in the
-------------
State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
21. Rights of Third Parties. Nothing herein expressed or implied is
-----------------------
intended to or shall be construed to confer upon or give to any person, firm, or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement.
22. Notices. All notices, requests, demands, and other communications
-------
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the United States by registered or certified mail,
or personally delivered, to the party entitled thereto at the address stated
below or to such changed address as the addressee may have given by a similar
notice:
To Employer: Chairman, Compensation Committee
Board of Directors
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
-and-
Copy to: Steven S. Dunlevie, Esq.
Womble Carlyle Sandridge & Rice, PLLC
Suite 700
1275 Peachtree Street
Atlanta, Georgia 30309
To Employee: Ms. Jo S. Hill
1013 Lenox Valley
Atlanta, Georgia 30324
IN WITNESS WHEREOF, Employer has caused this Agreement to be executed
and its seal to be affixed hereunto by their duly authorized officers, and
Employee has signed this Agreement, as of the Effective Date.
-14-
<PAGE>
ATTEST: PREMIER BANCSHARES, INC.
/s/ By: /s/ Darrell D. Pittard
- ---------------------- -------------------------
Secretary Darrell D. Pittard
Chairman of the Board
[SEAL]
/s/ /s/ Jo S. Hill (SEAL)
- ---------------------- -------------------------------
Witness Jo S. Hill
-15-
<PAGE>
EXHIBIT 10.9
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT ("Agreement") is made and entered into effective as of the
9th day of June, 1998 (the "Effective Date"), by and among PREMIER BANCSHARES,
INC., a Georgia corporation ("the Company"); PREMIER BANK, a wholly-owned
Georgia banking subsidiary of the Company ("Employer"); and A. LEE WILHELM
("Employee").
W I T N E S S E T H:
WHEREAS, as of the Effective Date, Lanier Bank & Trust Company, a Georgia
chartered commercial bank, merged with and into Employer;
WHEREAS, the Board of Directors of Employer considers the establishment and
maintenance of highly competent and skilled management personnel for Employer to
be essential to protecting and enhancing its best interests;
WHEREAS, the Boards of Directors of Employer and the Company is desirous of
inducing Employee to remain in the employ of Employer, subject to the terms and
conditions hereof;
WHEREAS, Employee is desirous of remaining in the employ of Employer,
subject to the terms and conditions hereof;
WHEREAS, the Company has joined in this Agreement for the purpose, inter
alia, of granting the stock options referred to in paragraph 4(b) of this
Agreement; and
WHEREAS, the parties agree that the provisions of this Agreement shall
control with respect to the rights and obligations of the parties resulting from
the employment of Employee by Employer;
<PAGE>
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definitions. The following terms used in this Agreement shall have the
-----------
following meanings:
(a) "Base Salary" shall mean the annual compensation (excluding
Incentive Compensation as defined in (c) of this paragraph and other
benefits) payable or paid to Employee pursuant to paragraph 4(a) of this
Agreement.
(b) "Event of Termination" shall mean the termination of Employee's
employment under this Agreement for any reason other than Termination for
Cause as defined in (d) of this paragraph.
(c) "Incentive Compensation" shall mean that compensation payable or
paid to Employee pursuant to paragraph 4(c) of this Agreement.
(d) "Termination for Cause" shall have the meaning provided in
paragraph 6(a) of this Agreement.
2. Employment. Employer agrees to continue Employee in its employ, and
----------
Employee agrees to remain in the employ of Employer, as President of the Central
Metro Division of Employer, for the period stated in paragraph 3(a) hereof and
upon the other terms and conditions herein provided. Employee agrees to perform
faithfully such services as are reasonably consistent with his position and
shall from time to time be assigned to him by the Board of Directors of Employer
in a trustworthy and businesslike manner for the purpose of advancing the
interests of Employer. The Board of Directors of Employer may also from time to
time change Employee's
-2-
<PAGE>
position or alter his duties and responsibilities and assign a new position or
new duties and responsibilities that are similar in scope and nature to
Employee's existing position, duties and responsibilities without invalidating
this Agreement or effecting the termination of Employee. At all times, Employee
shall manage and conduct the business of Employer in accordance with the
policies established by the Board of Directors of Employer, and in compliance
with applicable regulations promulgated by governing regulatory agencies.
Responsibility for the supervision of Employee shall rest with the Board of
Directors of Employer, which shall review Employee's performance at least
annually. The Board of Directors of Employer shall also have the authority to
terminate Employee, subject to the provisions outlined in paragraph 6 of this
Agreement.
3. Term and Duties.
---------------
(a) Term of Employment. This Agreement and the period of Employee's
------------------
employment under this Agreement shall be deemed to have commenced as of the
Effective Date and shall continue for a period of seven (7) full calendar
-
months thereafter, unless earlier terminated pursuant to this Agreement or
unless Employee dies before the end of such period, in which case the
period of employment shall be deemed to continue until the end of the month
of such death. Following the initial period, the employment of Employee
shall continue under the terms of this Agreement, but may be terminated by
either party upon sixty (60) days' prior written notice (which notice may
--
be given prior to the expiration of the initial period).
(b) Performance of Duties. During the period of employment hereunder,
---------------------
except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote substantially all of
his business time, attention, skill, and
-3-
<PAGE>
efforts to the faithful performance of his duties hereunder. Employee
shall be entitled to reasonable participation as a member in community,
civic, or similar organizations and the pursuit of personal investments
which do not present any material conflict of interest with Employer, or
otherwise unfavorably affect the performance of Employee's duties pursuant
to this Agreement.
(c) Office of Employee. The office of Employee shall be located at
------------------
Employer's office in Cumming, Georgia, or at such other location within the
State of Georgia as Employer may from time to time designate; provided,
however, that, in the event such relocation is to an office more than
thirty-five (35) miles from the Cumming office and Employee elects to move
--
his principal residence, the Employer shall reimburse Employee for all his
reasonable moving expenses.
(d) No Other Agreement. The Employee shall have no employment
------------------
contract or other written or oral agreement concerning employment with any
entity or person other than Employer and/or the Company during the term of
his employment under this Agreement.
(e) Uniqueness of Employee's Services. Employee hereby represents
---------------------------------
that the services to be performed by him under the terms of this Agreement
are of a special, unique, unusual, extraordinary, and intellectual
character which gives them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages and in an action at law.
Accordingly, Employee expressly agrees that Employer and/or the Company, in
addition to any rights or remedies which Employer and/or the Company may
possess, shall be entitled to injunctive and other equitable relief to
prevent the breach of this Agreement by Employee.
-4-
<PAGE>
4. Compensation.
------------
(a) Salary. Subject to the provisions of paragraph 6 hereof, Employer
------
shall pay Employee, as compensation for serving as President of the Central
Metro Division of Employer, an initial Base Salary of $135,000; such
--------
initial Base Salary, or any increased Base Salary, shall be payable in
substantially equal installments in accordance with the Employer's normal
pay practices, but not less frequently than monthly. Employer shall
coordinate the first payment of salary hereunder with the last payment of
salary received by Employee from Lanier Bank & Trust Company, such that
Employee shall have been fully compensated for all services to Employer and
Lanier Bank & Trust Company. Employee's Base Salary and any Incentive
Compensation (as defined in paragraph 4(c) hereof) shall be reviewed and
approved at least annually by the Boards of Directors of Employer and the
Company, or any committee(s) designated thereby. Said Boards or
Committee(s), if warranted in their discretion, may increase (but may not
decrease) Employee's Base Salary to reflect Employee's performance.
(b) Stock Options. In recognition of the services to be provided by
-------------
Employee to Employer and as an incentive for Employee to remain in the
employ of Employer, the Company shall grant to Employee, within sixty (60)
days following the Effective Date of this Agreement, an option to purchase
30,000 shares of the Company common stock at an exercise price of ten
------
dollars ($10.00) per share. The above-referenced options shall vest on the
-----
earlier to occur of: (i) six (6) months from the Effective Date of this
-
Agreement, provided Employee continues in the employ of Employer pursuant
to the terms of this Agreement; or (ii) termination of this Agreement by
Employer other than as a result of a Termination for
-5-
<PAGE>
Cause pursuant to paragraph 6(a) of this Agreement. The options may be
exercised by Employee at any time and from time to time during the ten (10)
--
year period following the vesting of such options, in whole or in part,
upon payment of the exercise price for the number of shares of stock being
acquired pursuant to such exercise.
(c) Incentive Compensation. During the Term of Employment and in
----------------------
addition to the aforesaid Base Salary, Employee shall be entitled to such
additional Incentive Compensation as may be awarded from time to time by
the Boards of Directors of Employer and/or the Company or any committee(s)
designated thereby in their discretion. Notwithstanding anything contained
in this Agreement to the contrary, any increase to Employee's Base Salary
and any Incentive Compensation paid to Employee shall be (i) in compliance
with regulations, pronouncements, directives, or orders issued or
promulgated by any governing regulatory agency and with any agreements by
and between Employer and/or the Company and such regulatory agencies, (ii)
consistent with the safe and sound operation of Employer and the Company,
(iii) closely monitored by the Boards of Directors of Employer and the
Company and (iv) comparable to such compensation paid to persons of similar
responsibilities and duties in other insured institutions of similar size,
in similar locations, and under similar circumstances including financial
condition and profitability.
(d) "Golden Parachute" Provision. Notwithstanding anything contained
----------------------------
in this Agreement to the contrary, any payments made to Employee pursuant
to this Agreement, or otherwise to Employee, are subject to and conditioned
upon their compliance with 12 U.S.C. (S) 1828(k) and any regulations
promulgated thereunder. Employer and Company each represent that none of
the events or circumstances described in 12 C.F.R. 359.1(f)(ii) exists
-6-
<PAGE>
or that the agreement to make payments hereunder is entered into in
contemplation of such events.
5. Participation in Benefit Plans.
------------------------------
(a) Incentive, Savings and Retirement Plans. During the employment
---------------------------------------
period, Employee shall be entitled to participate in all incentive, savings
and retirement plans, practices, policies and programs applicable generally
to senior executive officers of Employer, on the same basis as such other
senior executive officers, and, unless prohibited by such incentive,
savings and retirement plans, with full credit given for Employee's total
accumulated years of service at Lanier Bank & Trust Company for purposes of
determining vesting and eligibility.
(b) Welfare Benefit Plans. During the employment period, Employee
---------------------
and/or Employee's family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare benefit
plans, practices, policies and programs provided by Employer to the extent
applicable generally to senior executive officers of Employer, and, unless
prohibited by such welfare benefit plans, with full credit given for
Employee's total accumulated years of service at Lanier Bank & Trust
Company for purposes of determining vesting and eligibility.
(c) Expenses and Fringe Benefits. During the employment period,
----------------------------
Employee shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by Employee, and to receive fringe benefits,
in accordance with the policies, practices and procedures of Employer to
the extent applicable generally to other senior executive officers of
Employer.
-7-
<PAGE>
6. Payments to Employee Upon Termination of Employment. The Boards of
---------------------------------------------------
Directors of Employer and the Company may terminate Employee's employment under
this Agreement at any time upon sixty (60) days prior written notice; but any
--
termination other than Termination for Cause shall not prejudice Employee's
right to compensation or other benefits under this Agreement. Employee may
voluntarily terminate his employment under this Agreement upon sixty (60) days
--
prior written notice. The rights and obligations of Employer and/or the Company
and Employee in the event of such termination are set forth in this paragraph 6
as follows:
(a) Termination for Cause. Employee shall have no right to
---------------------
compensation or other benefits for any period after a Termination for Cause
except that Termination for Cause shall not affect the right of Employee to
exercise the options referred to in paragraph 4(b) hereof to the extent
vested, provided that such options shall, notwithstanding anything
contained in paragraph 4(b) hereof to the contrary, be exercised within
ninety (90) days following Termination for Cause; and further, except that,
--
Termination for Cause shall not affect rights provided under the various
employee benefit plans referred to in paragraph 5 hereof to the extent
rights or benefits are accrued prior to such termination. For purposes of
this Agreement, "Cause" shall mean:
(i) the willful and continued failure of Employee to perform
Employee's duties with Employer (other than any such failure resulting from
incapacity due to physical or mental illness), after a written demand for
performance is delivered to Employee by the Board of Employer which
specifically identifies the manner in which the Board believes that
Employee has not performed Employee's duties;
-8-
<PAGE>
(ii) Employee's personal dishonesty, willful misconduct, or
breach of a fiduciary duty from which he derives a personal profit;
(iii) Employee's willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) involving
moral turpitude or which represents reckless disregard for principles of
safety and soundness applicable to banks, or any final cease and desist
order; or
(iv) Employee's willful breach of any material term or
condition of this Agreement.
For purposes of this provision, no act or failure to act, on the part of
Employee, shall be considered "willful" or a breach of fiduciary duty unless it
is done, or omitted to be done, by Employee in bad faith or without reasonable
belief that Employee's action or omission was in the best interests of Employer.
Any act, or failure to act, based upon authority given pursuant to a resolution
duly adopted by the Board of Employer or based upon the advice of counsel for
Employer shall be conclusively presumed to be done, or omitted to be done, by
Employee in good faith and in the best interests of Employer. The cessation of
employment of Employee shall not be deemed to be for Cause unless and until
there shall have been delivered to Employee a copy of a resolution duly adopted
by the affirmative vote of not less than a majority of the entire membership of
the Board at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to Employee and Employee is given an opportunity,
together with counsel, to be heard before the Board), finding that, in the good
faith opinion of the Board, Employee is guilty of the conduct described in
subparagraph (i), (ii), (iii) or (iv) above, and specifying the particulars
thereof in detail.
-9-
<PAGE>
(b) Event of Termination. Upon the occurrence of an Event of
--------------------
Termination, Employer shall pay to Employee, or in the event of his
subsequent death, to his designated beneficiary or beneficiaries, or to his
estate, as the case may be, as liquidated damages, in lieu of all other
claims for salary, a severance payment equal to the following:
(i) if the termination occurs upon notice given by the Company or
Employer prior to the expiration of the initial seven (7) month term of
-
this Agreement, the longer of sixty (60) days' Base Salary or the amount of
--
Base Salary that would be payable for the duration of the seven month term;
or
(ii) if the termination occurs upon notice given by the Company
or Employer after the expiration of the initial seven (7) month term of
-
this Agreement, or occurs upon notice given by Employee, sixty (60) days'
--
Base Salary;
plus, in the event of either (i) or (ii) above, the pro-rata portion of the
Incentive Compensation to which Employee would have been entitled had he
remained an employee throughout the period for which Incentive Compensation is
calculated.
7. Regulatory Suspension.
---------------------
(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employer by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(3) or (g)(1), the obligations of Employer and the
Company under this Agreement shall be suspended as of the date of service
of such notice, unless stayed by appropriate proceedings. If the charges
in the notice are dismissed, Employer and/or the Company may in their
discretion (i) pay Employee all or part of the compensation withheld while
its contract obligations were suspended and (ii)
-10-
<PAGE>
reinstate in whole or in part any of its obligations which were suspended.
Vested rights of Employee shall not otherwise be affected.
(b) If Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employer by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(4) or (g)(1), all obligations of Employer and the
Company under this Agreement shall terminate as of the effective date of
the order, but vested rights of the parties hereto shall not be affected.
8. Nondisclosure of Confidential Information. Employee acknowledges
-----------------------------------------
that, as an officer of Employer, he will have access to certain confidential or
proprietary information possessed by Employer or the Company or relating to its
or their business, or the business of Lanier Bank & Trust Company, and
including, without limitation, customer lists, details of client or consultant
contracts, current and anticipated customer requirements, pricing policies price
lists, market studies, business plans, operational methods, marketing plans or
strategies, product development techniques or plans, computer software programs,
financial information and data, business acquisition plans, and new personnel
acquisition plans, some of which information would constitute a trade secret
under the common law or statutory law of the State of Georgia ("Confidential
Information"). Employee understands and agrees that the Confidential Information
constitutes a valuable asset of Employer and the Company, respectively, and may
not be converted to Employee's own use. Accordingly, Employee hereby agrees that
for one (1) year period thereafter (the "Restricted Period"), reveal, divulge,
or disclose to any person not expressly authorized by Employer or the Company
any Confidential Information, and Employee shall not, directly or indirectly, at
any time during the Restricted Period use or make use of any Confidential
Information in connection with any
-11-
<PAGE>
business activity other than that of Employer or the Company. Notwithstanding
anything contained herein to the contrary, Employee shall not be restricted form
disclosing or using Confidential Information that: (i) is or becomes generally
available to the public other than as a result of an unauthorized disclosure by
Employee or his agent; (ii) becomes available to Employee in a manner that is
not in contravention of applicable law from a source (other than Employer or the
Company or one of its or their officers, employees, agents or representatives)
that is not bound by a confidential relationship with Employer or the Company or
by a confidentiality or other similar agreement; (iii) was known to Employee on
a non-confidential basis and not in contravention of applicable law or a
confidentiality or other similar agreement before its disclosure to Employee by
Employer or the Company or one of its or their officers, employees, agents or
representatives; or (iv) is required to be disclosed by law, court order or
other legal process; provided, however, that in the event disclosure is required
by law, Employee shall provide Employer and the Company, as the case may be,
with prompt notice of such requirement so that Employer or the Company, as the
case may be, may seek an appropriate protective order prior to any such required
disclosure by Employee.
9. Source of Payments. All payments provided in paragraphs 4 and 6
------------------
hereof shall be paid in cash from the general funds of Employer as provided
herein (with the exception of the stock options referred to in paragraph 4(b) of
this Agreement to be granted to Employee by the Company), and no special or
separate fund shall be established by Employer or the Company, and no other
segregation of assets shall be made to assure payment. Employee shall have no
right, title, or interest in or to any investments which Employer and/or the
Company may make to meet the obligations hereunder.
-12-
<PAGE>
10. Injunctions. In view of the irreparable harm and damage which
-----------
Employer and the Company would sustain as a result of a breach by Employee of
the covenants or agreements under paragraph 8 hereof, and in view of the lack of
an adequate remedy at law to protect Employer's and the Company's interests,
Employer and the Company shall have the right to receive, and Employee hereby
consents to the issuance of, a permanent injunction enjoining Employee from any
violation of the covenants and agreements set forth in paragraph 8 hereof. The
foregoing remedy shall be in addition to, and not in limitation of, any other
rights or remedies to which Employer and/or the Company are or may be entitled
at law or in equity respecting this Agreement.
11. Attorneys' Fees. In the event any party hereto is required to engage
---------------
in legal action against any other party hereto, either as plaintiff or
defendant, in order to enforce or defend any of its or his rights under this
Agreement, and such action results in a final judgment in favor of one or more
parties, then the party or parties against whom said final judgment is obtained
shall reimburse the prevailing party or parties for all legal fees and expenses
incurred by the prevailing party or parties in asserting or defending its or his
rights hereunder in the event the court determines that the actions of the party
or parties against whom final judgment is obtained were reckless, or in willful
disregard of the obligations of this Agreement, or the court otherwise so
orders.
12. Federal Income Tax Withholding. Employer and the Company may withhold
------------------------------
from any benefits payable under this Agreement all federal, state, city, or
other taxes as shall be required pursuant to any law or governmental regulation
or ruling.
13. Effect of Prior Agreements. This Agreement, together with the letter
--------------------------
from Darrell D. Pittard to Employee dated December 11, 1997, contains the entire
understanding between the parties hereto and supersedes any prior employment
agreement and any contemporaneous oral agreement
-13-
<PAGE>
or understanding by, between, or among Employer and/or the Company and Employee,
including, without limitation, any employment agreement or understanding between
Employee and Lanier Bank & Trust Company.
14. General Provisions.
------------------
(a) Nonassignability. Neither this Agreement nor any right or
----------------
interest hereunder shall be assignable by Employee, his beneficiaries or
legal representatives, without the written consent of Employer and the
Company; provided, however, that nothing in this paragraph 14(a) shall
preclude (i) Employee from designating a beneficiary to receive any
benefits payable hereunder upon his death, or (ii) the executors,
administrators, or other legal representatives of Employee or his estate
from assigning any rights hereunder to the person or persons entitled
thereto.
(b) No Attachment. Except as required by law, no right to receive
-------------
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void,
and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and
-----------------
inure to the benefit of, Employer, the Company and Employee and their
respective heirs, successors, assigns, and legal representatives.
15. Modification and Waiver.
-----------------------
-14-
<PAGE>
(a) Amendment of Agreement. This Agreement may not be modified or
----------------------
amended except by an instrument in writing, signed by the parties hereto,
and which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to
------
have been waived, nor shall there be any estoppel against the enforcement
of any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
16. Severability. If for any reason any provision of this Agreement is
------------
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
17. Headings. The headings of paragraphs herein are included solely for
--------
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
-15-
<PAGE>
18. Governing Law. This Agreement has been executed and delivered in the
-------------
State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
19. Rights of Third Parties. Nothing herein expressed or implied is
-----------------------
intended to or shall be construed to confer upon or give to any person, firm, or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement.
20. Notices. All notices, requests, demands, and other communications
-------
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the United States by registered or certified mail,
or personally delivered, to the party entitled thereto at the address stated
below or to such changed address as the addressee may have given by a similar
notice:
To Employer: President
Premier Bank
2180 Atlanta Plaza
950 East Paces Ferry Road
Atlanta, Georgia 30326
To the Company: Chairman and Chief Executive officer
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 East Paces Ferry Road
Atlanta, Georgia 30326
Copied to: Steven S. Dunlevie, Esq.
Womble Carlyle Sandridge & Rice, PLLC
Suite 700
1275 Peachtree Street
Atlanta, Georgia 30309
To Employee: Mr. A. Lee Wilhelm
214 Dahlonega Road
Cumming, Georgia 30130
-16-
<PAGE>
IN WITNESS WHEREOF, Employer and the Company have caused this
Agreement to be executed and their seal to be affixed hereunto by their duly
authorized officers, and Employee has signed this Agreement, as of the Effective
Date.
ATTEST: PREMIER BANCSHARES, INC.
/s/ By: /s/ Robert C. Oliver
- ------------------------- -------------------------
Secretary Robert C. Oliver
(CORPORATE SEAL) President and Chief Operating Officer
ATTEST: PREMIER BANK
/s/ By: /s/ Robert C. Oliver
- ------------------------- -------------------------
Secretary Robert C. Oliver
(BANK SEAL) President
/s/ /s/ A. Lee Wilhelm (SEAL)
- ------------------------- ------------------------------
Witness A. Lee Wilhelm
-17-
<PAGE>
EXHIBIT 10.10
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT ("Agreement") is made and entered into effective as of the
1/st/ day of July, 1998 (the "Effective Date"), by and among PREMIER BANCSHARES,
INC., a Georgia corporation (the "Holding Company"), PREMIER BANK, a
wholly-owned Georgia banking subsidiary of the Holding Company (the "Bank"),
CENTRAL AND SOUTHERN BANK OF GEORGIA, a wholly-owned Georgia banking subsidiary
of the Holding Company ("Central") (collectively, "Employers") and MICHAEL E.
RICKETSON ("Employee") and supercedes and replaces all other employment
agreements between Employee and any of Employers.
W I T N E S S E T H:
WHEREAS, as of the Effective Date, Employee was Executive Vice President
and Chief Financial Officer of the Holding Company;
WHEREAS, as of the Effective Date, Employee was Executive Vice President
and Chief Financial Officer of the Bank;
WHEREAS, as of the Effective Date, Employee was a member of the Board of
Directors of Central and was Chief Financial Officer of Central;
WHEREAS, the Boards of Directors of Employers consider the establishment
and maintenance of highly competent and skilled management personnel for
Employers to be essential to protecting and enhancing their best interests;
WHEREAS, the Boards of Directors of Employers are desirous of inducing
Employee to remain in the employ of Employers, subject to the terms and
conditions hereof;
WHEREAS, Employee is desirous of remaining in the employ of Employers,
subject to the terms and conditions hereof; and
<PAGE>
WHEREAS, the parties agree that the provisions of this Agreement shall
control with respect to the rights and obligations of the parties resulting from
the employment of Employee by Employers;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definitions. The following terms used in this Agreement shall have the
following meanings:
(a) "Base Salary" shall mean the annual compensation (excluding
Incentive Compensation as defined in (e) of this paragraph and other
benefits) payable or paid to Employee pursuant to paragraph 4(a) of this
Agreement.
(b) "Change of Control" shall be deemed to have occurred if:
(i) Upon the consummation of any transaction in which any
person (or persons acting in concert), partnership, corporation, or
other organization shall own, control, or hold with the power to vote
more than fifty percent (50%) of any class of voting securities of the
---
Holding Company;
(ii) Upon the consummation of any transaction in which the
Holding Company, or substantially all of the assets of the Holding
Company, shall be sold or transferred to, or consolidated or merged
with, another corporation; or
(iii) Upon the consummation of any transaction in which the Bank,
or substantially all of the assets of the Bank, shall be sold or
transferred to, or consolidated or merged with, another corporation
which is not a majority owned
-2-
<PAGE>
subsidiary of the Holding Company; provided, however, if the Holding
Company or the Bank shall become a subsidiary of another corporation
or shall be merged or consolidated into another corporation and a
majority of the outstanding voting shares of the parent or surviving
corporation are owned immediately after such acquisition, merger, or
consolidation by the owners of a majority of the voting shares of the
Holding Company immediately before such acquisition, merger, or
consolidation, then no Change of Control shall be deemed to have
occurred.
(c) "Disability" shall mean a condition for which benefits would be
payable under any long-term disability insurance coverage (without regard
to the application of any elimination period requirement) then provided to
Employee by Employers; or, if no such coverage is then being provided, the
inability of Employee to perform the material aspects of Employee's duties
under this Agreement for a period of at least ninety (90) consecutive days,
--
as determined by an independent physician selected with the approval of
Employers and Employee.
(d) "Event of Termination" shall mean the termination by Employers of
Employee's employment under this Agreement by written notice delivered to
Employee for any reason other than Termination for Cause as defined in (f)
of this paragraph or termination following a continuous period of
disability exceeding six (6) calendar months pursuant to paragraph 6(a) of
-
this Agreement.
(e) "Incentive Compensation" shall mean that compensation payable or
paid to Employee pursuant to paragraph 4(b) of this Agreement.
-3-
<PAGE>
(f) "Termination for Cause" shall have the meaning provided in
paragraph 7(a) of this Agreement.
2. Employment. Employers agree to continue Employee in their employ, and
----------
Employee agrees to remain in the employ of the Holding Company as Executive Vice
President and Chief Financial Officer, for the period stated in paragraph 3(a)
hereof and upon the other terms and conditions herein provided. Employee also
agrees to remain in the employ of Central as Chief Financial Officer, for the
period stated in paragraph 3(a) hereof and upon the other terms and conditions
herein provided. Employee shall also continue to serve as Executive Vice
President and Chief Financial Officer of the Bank and a Director of Central at
the pleasure of the Boards of Directors of Employers. Employee agrees to perform
faithfully such services as are reasonably consistent with his positions and
shall from time to time be assigned to him by the Boards of Directors of
Employers in a trustworthy and businesslike manner for the purpose of advancing
the interests of Employer. The Boards of Directors of Employers may also from
time to time change Employee's position or alter his duties and responsibilities
and assign a new position or new duties and responsibilities that are similar in
scope and nature to Employee's existing position, duties and responsibilities
without invalidating this Agreement or effecting the termination of Employee. At
all times, Employee shall manage and conduct the business of Employers in
accordance with the policies established by the Boards of Directors of
Employers, and in compliance with applicable regulations promulgated by
governing regulatory agencies. Responsibility for the supervision of Employee
shall rest with the Board of Directors of Employers, which shall review
Employee's performance at least annually. The Board of Directors of Employers
shall also have the authority to terminate Employee, subject to the provisions
outlined in paragraph 7 of this Agreement.
-4-
<PAGE>
3. Term and Duties.
---------------
(a) Term of Employment. This Agreement and the period of Employee's
------------------
employment under this Agreement shall be deemed to have commenced as of the
Effective Date and shall continue for a period of thirty-six (36) full
--
calendar months thereafter, unless earlier terminated pursuant to this
Agreement or unless Employee dies before the end of such thirty-six (36)
--
months, in which case the period of employment shall be deemed to continue
until the end of the month of such death. On each anniversary of the
Effective Date, this Agreement and Employee's term of employment shall be
extended for an additional twelve (12) month period provided that the
--
Boards of Directors of Employers determine that the performance of Employee
has met said Boards' requirements and standards and further that this
Agreement shall be extended.
(b) Performance of Duties. During the period of employment hereunder,
---------------------
except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote substantially all of
his business time, attention, skill, and efforts to the faithful
performance of his duties hereunder. Employee shall be entitled to
reasonable participation as a member in community, civic, or similar
organizations and the pursuit of personal investments which do not present
any material conflict of interest with Employers, or otherwise unfavorably
affect the performance of Employee's duties pursuant to this Agreement.
(c) Office of Employee. The office of Employee shall be located at
------------------
the principal office of Employers in Atlanta, Georgia, or at such other
location within the State of Georgia as Employers may from time to time
designate; provided, however, that, there shall be no
-5-
<PAGE>
such relocation without the consent of Employee and provided, further,
that, in the event such relocation requires Employee to move his principal
residence, Employers shall reimburse Employee for all his reasonable moving
expenses.
(d) No Other Agreement. Employee shall have no employment contract or
------------------
other written or oral agreement concerning employment with any entity or
person other than Employers during the term of his employment under this
Agreement.
(e) Uniqueness of Employee's Services. Employee hereby represents
---------------------------------
that the services to be performed by him under the terms of this Agreement
are of a special, unique, unusual, extraordinary, and intellectual
character which gives them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages and in an action at law.
Accordingly, Employee expressly agrees that Employers, in addition to any
rights or remedies which Employers may possess, shall be entitled to
injunctive and other equitable relief to prevent the breach of this
Agreement by Employee.
4. Compensation.
------------
(a) Salary. Subject to the provisions of paragraph 7 hereof,
------
Employers shall pay Employee, as compensation for serving as Executive Vice
President and Chief Financial Officer of the Holding Company, as Chief
Financial Officer of Central, as Director of Central and as Executive Vice
President and Chief Financial Officer of the Bank, an initial Base Salary
of $137,500; such initial Base Salary, or any increased Base Salary, shall
--------
be payable in substantially equal installments in accordance with the
Employers' normal pay practices, but not less frequently than monthly.
Employee's Base Salary shall be allocated between and be reflected upon the
books and records of Employers. Employee's Base Salary
-6-
<PAGE>
and any Incentive Compensation (as defined in paragraph 4(b) hereof) shall
be reviewed and approved at least annually by the Boards of Directors of
Employers, or any committee(s) designated thereby. Said Boards or
Committee(s), if warranted in their discretion, may increase Employee's
Base Salary to reflect Employee's performance. In addition to the forgoing,
to the extent that Employee serves as a Director of any Employer or as a
Director of any subsidiary of any Employer, Employee shall be entitled to
receive any Director's fees customarily paid to members of such Board of
Directors.
(b) Incentive Compensation. During the Term of Employment and in
----------------------
addition to the aforesaid Base Salary, Employee shall be entitled to such
additional Incentive Compensation as may be awarded from time to time by
the Boards of Directors of Employers or any committee(s) designated thereby
in their discretion. Employee's Incentive Compensation shall be allocated
between and be reflected upon the books and records of Employers.
Notwithstanding anything contained in this Agreement to the contrary, any
increase to Employee's Base Salary and any Incentive Compensation paid to
Employee shall be (i) in compliance with regulations, thrift bulletins,
pronouncements, directives, or orders issued or promulgated by any
governing regulatory agency and with any agreements by and between
Employers and such regulatory agencies, (ii) consistent with the safe and
sound operation of Employers, (iii) closely monitored by the Boards of
Directors of Employers, and (iv) comparable to such compensation paid to
persons of similar responsibilities and duties in other insured
institutions of similar size, in similar locations, and under similar
circumstances including financial condition and profitability.
-7-
<PAGE>
(c) Provision of Automobile. Employers shall provide Employee with an
-----------------------
automobile allowance of $800 per month. No other reimbursement will be made
relating to the operation and maintenance of any automobile by Employee;
and Employee shall maintain, at his expense, automobile liability insurance
to protect Employee, Employers and/or the Holding Company, as their
respective interests may appear, against claims arising out of the use of
said automobile (or any other motor vehicle) in the course of Employee's
employment hereunder.
(d) Financial Planning and Tax Preparation. In order to enable
--------------------------------------
Employee to fully focus on his duties hereunder, Employers shall provide
reimbursement to Employee for professional fees incurred by Employee for
estate planning and/or tax preparation in an amount not to exceed $5,000.
------
(e) "Golden Parachute" Provision. Notwithstanding anything contained
----------------------------
in this Agreement to the contrary, any payments made to Employee pursuant
to this Agreement, or otherwise to Employee, are subject to and conditioned
upon compliance with 12 U.S.C. (S) 1828(k) and any regulations promulgated
thereunder.
5. Participation in Benefit Plans. The payments provided in paragraph 4,
------------------------------
6, and 7 hereof are in addition to any benefits to which Employee may be, or may
become, entitled to, under any group hospitalization, health, dental care, or
sick leave plan; life insurance or death benefit plan; travel or accident
insurance; pension or retirement plan; stock option or ownership plan; or other
present or future group employee benefit plan or program for which senior
executive officers of Employers shall be or shall become eligible. Said benefit
shall include, without limitation, major medical/dental insurance for Employee
and his dependents.
-8-
<PAGE>
6. Benefits Payable Upon Disability.
--------------------------------
(a) Disability Benefits. In the event of the Disability of Employee,
-------------------
Employers shall continue to pay Employee 100% of Employee's then current
----
Base Salary pursuant to paragraph 4(a) during the first six (6) months of a
-
continuous period of disability. It is provided, however, that in the event
Employee is disabled for a continuous period exceeding six (6) months,
-
Employers may, at their election, terminate this Agreement, in which event
payment of Employee's Base Salary shall cease.
(b) Disability Benefit Offset. Any amounts payable under paragraph
-------------------------
6(a) hereof shall be reduced by any amounts paid to Employee under any
other disability program or policy of insurance maintained by Employers.
7. Payments to Employee Upon Termination of Employment. The Boards of
---------------------------------------------------
Directors of Employers may terminate Employee's employment under this Agreement
at any time; but any termination other than Termination for Cause shall not
prejudice Employee's right to compensation or other benefits under this
Agreement. Employee may voluntarily terminate his employment under this
Agreement. The rights and obligations of Employers and Employee in the event of
such termination are set forth in this paragraph 7 as follows:
(a) Termination for Cause. Employee shall have no right to
---------------------
compensation or other benefits for any period after a Termination for
Cause. Termination for Cause shall be determined by the Boards of Directors
of Employers in the reasonable exercise of their discretion and acting in
good faith, and shall include termination because of Employee's personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duties
involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule,
-9-
<PAGE>
or regulation (other than traffic violations or similar offenses), or a
final cease-and-desist order, the regulatory suspension or removal of
Employee as defined in paragraphs 9(a) and (b) hereof, the failure of
Employee to follow reasonable written instructions of the Boards of
Directors of Employers, or a material breach of Employee of any provision
of this Agreement. The termination of employment of Employee shall not be
deemed to be a Termination for Cause unless and until there shall have been
delivered to Employee a copy of a resolution duly adopted by the
affirmative vote of not less than two-thirds of the entire membership of
the Boards of Employers at a meeting of the respective Boards called and
held for such purpose (after at least thirty (30) days' prior notice of
such meeting is provided to Employee and Employee is given an opportunity,
together with counsel, to be heard before the Board), finding that, in the
good faith opinion of the Board, Employee is guilty of the conduct
described herein and specifying the particulars thereof in detail. Said
Termination for Cause shall not be effective until thirty (30) days after
such resolution is adopted, during which time Employee shall be afforded
the opportunity to petition the Boards for reconsideration of such
resolution. The Boards of Directors of Employers, in their discretion, may
suspend Employee, with pay, for all or any portion of the period of time
from the delivery of the notice described herein until the effective time
of the Termination for Cause.
(b) Event of Termination Without Change of Control. Upon the
----------------------------------------------
occurrence of an Event of Termination, other than after a Change of
Control as provided in paragraph 7(c) hereof, Employers shall pay to
Employee, or in the event of his subsequent death, to his designated
beneficiary or beneficiaries, or to his estate, as the case may be, as
liquidated
-10-
<PAGE>
damages, in lieu of all other claims, a severance payment equal to one and
a half (1 1/2) times Employee's Total Compensation (defined as the sum of
the then current Base Salary plus any Incentive Compensation paid to
Employee during the immediately preceding twelve (12) months) paid to
--
Employee during the immediately preceding twelve (12) months, to be paid in
--
full on the last day of the month following the date of said Event of
Termination.
(c) Event of Termination in Connection With a Change of Control. If
-----------------------------------------------------------
during the term of this Agreement and within one (1) year immediately
-
following a Change of Control or within six (6) months immediately prior to
-
such Change of Control:
(i) Employee's employment with Employers under this Agreement
is terminated by an Event of Termination; or
(ii) the status, character, capacity, and circumstances of
Employee's employment as provided in paragraphs 2 and 3 of this
Agreement have been materially and adversely altered by Employers
whether by a reduction in salary, responsibilities, authority, or
benefits, and Employee voluntary terminates the employment
contemplated by this Agreement for that reason;
then Employers shall pay to Employee, or in the event of his subsequent
death, to his designated beneficiary or beneficiaries, or to his estate, as
the case may be, as liquidated damages, in lieu of all other claims, a
severance payment equal to to one and a half (1 1/2) times Employee's Total
Compensation, to be paid in full on the last day of the month following the
date of said Event of Termination or Employee's voluntary termination under
(ii) above. In no event shall the total compensation paid to Employee upon
the termination of his employment in connection with a Change of Control
exceed the amount permitted by
-11-
<PAGE>
Section 280G of the Internal Revenue Code (as amended) or three times
Employee's average annual compensation. Employee's average annual
compensation shall be based on the most recent five taxable years ending
before the Change of Control (or the period during which Employee was
employed by Employers if Employee has been employed by Employers for less
than five years).
(d) Voluntary Termination of Employment. Employee shall have no right
-----------------------------------
to compensation or other benefits under this Agreement for any period
following the voluntary termination of Employee's employment by Employee,
except as provided in paragraph 7(b) and 7(c) hereof.
(e) Allocation of Payments. Any payments made by Employers to
----------------------
Employee pursuant to this paragraph 7 shall be allocated between and be
reflected upon the books and records of Employers.
8. Regulatory Suspension.
---------------------
(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employers by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(3) or (g)(1), the obligations of Employers under this
Agreement shall be suspended as of the date of service of such notice,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, Employers may in their discretion (i) pay Employee all or part
of the compensation withheld while their contract obligations were
suspended and (ii) reinstate in whole or in part any of their obligations
which were suspended.
-12-
<PAGE>
(b) If Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employers by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(4) or (g)(1), all obligations of Employers under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the parties hereto shall not be affected.
9. Nondisclosure of Confidential Information. Employee acknowledges that
-----------------------------------------
he possesses confidential information of a special and unique nature and value
affecting and relating to Employers' business, including, without limitation,
the identity of the customers, deposits business records, other trade secrets,
and other similar confidential information relating to Employers and the
business of each (all the foregoing being hereinafter collectively referred to
as "Confidential Information"). Employee recognizes and acknowledges that all
Confidential Information is the exclusive property of Employers, constitutes
trade secrets of Employers, is material and confidential, and greatly affects
the goodwill and the effective and successful conduct of the business of
Employers. As a material inducement to Employers to enter into this Agreement
and to employ Employee, 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 Employers so long
as it is not known by competitors of Employers and that Employers has taken
reasonable steps to keep all such information and trade secrets confidential.
-13-
<PAGE>
10. Source of Payments. All payments provided in paragraphs 4, 6, and 7
------------------
hereof shall be paid in cash from the general funds of Employers as provided
herein, and no special or separate fund shall be established by Employers, and
no other segregation of assets shall be made to assure payment. Employee shall
have no right, title, or interest in or to any investments which Employers may
make to meet the obligations hereunder.
11. Injunctions. In view of the irreparable harm and damage which
-----------
Employers would sustain as a result of a breach by Employee of the covenants or
agreements under paragraph 9 hereof, and in view of the lack of an adequate
remedy at law to protect Employers, Employers shall have the right to receive,
and Employee hereby consents to the issuance of, a permanent injunction
enjoining Employee from any violation of the covenants and agreements set forth
in paragraph 9 hereof. The foregoing remedy shall be in addition to, and not in
limitation of, any other rights or remedies to which Employers are or may be
entitled at law or in equity respecting this Agreement.
12. Attorneys' Fees. In the event any party hereto is required to engage
---------------
in legal action against any other party hereto, either as plaintiff or
defendant, in order to enforce or defend any of their or his rights under this
Agreement, and such action results in a final judgment in favor of one or more
parties, then the party or parties against whom said final judgment is obtained
shall reimburse the prevailing party or parties for all legal fees and expenses
incurred by the prevailing party or parties in asserting or defending their or
his rights hereunder.
13. Federal Income Tax Withholding. Employers may withhold from any
------------------------------
benefits payable under this Agreement all federal, state, city, or other taxes
as shall be required pursuant to any law or governmental regulation or ruling.
-14-
<PAGE>
14. Effect of Prior Agreements. This Agreement contains the entire
--------------------------
understanding between the parties hereto and supersedes any prior employment
agreement and any contemporaneous oral agreement or understanding by, between,
or among Employers, Employers' subsidiaries and/or Employers' related companies
and Employee.
15. General Provisions.
------------------
(a) Nonassignability. Neither this Agreement nor any right or
----------------
interest hereunder shall be assignable by Employee, his beneficiaries or
legal representatives, without the written consent of Employers; provided,
however, that nothing in this paragraph 15(a) shall preclude (i) Employee
from designating a beneficiary to receive any benefits payable hereunder
upon his death, or (ii) the executors, administrators, or other legal
representatives of Employee or his estate from assigning any rights
hereunder to the person or persons entitled thereto.
(b) No Attachment. Except as required by law, no right to receive
-------------
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void,
and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and
-----------------
inure to the benefit of, Employers and Employee and their respective heirs,
successors, assigns, and legal representatives.
-15-
<PAGE>
16. Modification and Waiver.
-----------------------
(a) Amendment of Agreement. This Agreement may not be modified or
----------------------
amended except by an instrument in writing, signed by the parties hereto,
and which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to
------
have been waived, nor shall there be any estoppel against the enforcement
of any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
17. Severability. If for any reason any provision of this Agreement is
------------
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
18. Headings. The headings of paragraphs herein are included solely for
--------
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
-16-
<PAGE>
19. Governing Law. This Agreement has been executed and delivered in the
-------------
State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
20. Rights of Third Parties. Nothing herein expressed or implied is
-----------------------
intended to or shall be construed to confer upon or give to any person, firm, or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement.
21. Notices. All notices, requests, demands, and other communications
-------
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the United States by registered or certified mail,
or personally delivered, to the party entitled thereto at the address stated
below or to such changed address as the addressee may have given by a similar
notice:
To Employers: Chairman of the Board
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
Copied to: Steven S. Dunlevie, Esq.
Womble Carlyle Sandridge & Rice, PLLC
Suite 700
1275 Peachtree Street
Atlanta, Georgia 30309
To Employee: Mr. Michael E. Ricketson
4329 Lansfaire Terrace
Suwanee, Georgia 30174
IN WITNESS WHEREOF, Employers have caused this Agreement to be
executed and their seals to be affixed hereunto by their duly authorized
officers, and Employee has signed this Agreement, as of the Effective Date.
ATTEST: PREMIER BANCSHARES, INC.
-17-
<PAGE>
By:
- ------------------------------ __________________________________
Barbara Burtt, Secretary Darrell D. Pittard
Chairman of the Board
ATTEST: PREMIER BANK
/s/ By: /s/ Darrell D. Pittard
- ----------------------------- ----------------------------------
Secretary Darrell D. Pittard
ATTEST: CENTRAL AND SOUTHERN BANK OF GEORGIA
/s/ By: /s/ Robert C. Oliver
- ----------------------------- ----------------------------------
Secretary Robert C. Oliver
(BANK SEAL) President
/s/ /s/ Michael E. Ricketson (SEAL)
- ----------------------------- ---------------------------------------
Witness Michael E. Ricketson
-18-
<PAGE>
EXHIBIT 10.11
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT ("Agreement") is made and entered into effective as of the
1/st/ day of July, 1998 (the "Effective Date"), by and among PREMIER BANCSHARES,
INC., a Georgia corporation ("the Holding Company"); PREMIER LENDING
CORPORATION, a wholly-owned Georgia banking subsidiary of the Holding Company
("PLC") and PREMIER BANK, a wholly-owned Georgia banking subsidiary of the
Holding Company (the "Bank") (collectively, "Employers"); and DARRELL D. PITTARD
("Employee") and supercedes and replaces all other employment agreements between
Employee and any of Employers.
W I T N E S S E T H:
WHEREAS, as of the Effective Date, Employee continued as Chairman of the
Board and Chief Executive Officer of the Holding Company and continued as
Chairman of the Board and Chief Executive Officer of PLC and continued as
Chairman of the Board of the Bank;
WHEREAS, the Boards of Directors of Employers consider the establishment
and maintenance of highly competent and skilled management personnel for
Employers to be essential to protecting and enhancing their best interests;
WHEREAS, the Boards of Directors of Employers are desirous of inducing
Employee to remain in the employ of Employers, subject to the terms and
conditions hereof;
WHEREAS, Employee is desirous of remaining in the employ of Employers,
subject to the terms and conditions hereof; and
WHEREAS, the parties agree that the provisions of this Agreement shall
control with respect to the rights and obligations of the parties resulting from
the employment of Employee by Employers;
<PAGE>
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definitions. The following terms used in this Agreement shall have the
following meanings:
(a) "Base Salary" shall mean the annual compensation (excluding
Incentive Compensation as defined in (e) of this paragraph and other
benefits) payable or paid to Employee pursuant to paragraph 4(a) of this
Agreement.
(b) "Change of Control" shall be deemed to have occurred if:
(i) Upon the consummation of any transaction in which any person
(or persons acting in concert), partnership, corporation, or other
organization shall own, control, or hold with the power to vote more
than fifty percent (50%) of any class of voting securities of the
---
Holding Company;
(ii) Upon the consummation of any transaction in which the
Holding Company, or substantially all of the assets of the Holding
Company, shall be sold or transferred to, or consolidated or merged
with, another corporation; or
(iii) Upon the consummation of any transaction in which either or
both PLC and the Bank, or substantially all of the assets of either or
both PLC and the Bank, shall be sold or transferred to, or
consolidated or merged with, another corporation which is not a
majority owned subsidiary of the Holding Company; provided, however,
if the Holding Company, PLC or the Bank shall become a subsidiary of
another corporation or shall be merged or consolidated into another
corporation and
-2-
<PAGE>
a majority of the outstanding voting shares of the parent or surviving
corporation are owned immediately after such acquisition, merger, or
consolidation by the owners of a majority of the voting shares of the
Holding Company immediately before such acquisition, merger, or
consolidation, then no Change of Control shall be deemed to have
occurred.
(c) "Disability" shall mean a condition for which benefits would be
payable under any long-term disability insurance coverage (without regard
to the application of any elimination period requirement) then provided to
Employee by Employers; or, if no such coverage is then being provided, the
inability of Employee to perform the material aspects of Employee's duties
under this Agreement for a period of at least ninety (90) consecutive days,
--
as determined by an independent physician selected with the approval of
Employers and Employee.
(d) "Event of Termination" shall mean the termination by Employers of
Employee's employment under this Agreement by written notice delivered to
Employee for any reason other than Termination for Cause as defined in (g)
of this paragraph or termination following a continuous period of
disability exceeding twelve (12) calendar months pursuant to paragraph 6(a)
--
of this Agreement.
(e) "Incentive Compensation" shall mean that compensation payable or
paid to Employee pursuant to paragraph 4(b) of this Agreement.
(f) "Severance Amount" shall have the same meaning as the term
"parachute payment" defined in Section 280G(b)(2) of the Internal Revenue
Code (as amended).
-3-
<PAGE>
(g) "Termination for Cause" shall have the meaning provided in
paragraph 7(a) of this Agreement.
2. Employment. Employers and the Company agree to continue Employee in
----------
their employ, and Employee agrees to remain in the employ of Employers, Chairman
of the Board and Chief Executive Officer of the Holding Company; as Chairman of
the Board and Chief Executive Officer of PLC and as Chairman of the Board and
Chief Executive Officer of the Bank, for the period stated in paragraph 3(a)
hereof and upon the other terms and conditions herein provided. Employee agrees
to perform faithfully such services as are reasonably consistent with his
positions and shall from time to time be assigned to him by the Boards of
Directors of Employers in a trustworthy and businesslike manner for the purpose
of advancing the interests of Employers. At all times, Employee shall manage and
conduct the business of Employers in accordance with the policies established
by the Boards of Directors of Employers, and in compliance with applicable
regulations promulgated by governing regulatory agencies. Responsibility for
the supervision of Employee shall rest with the Boards of Directors of
Employers, which shall review Employee's performance at least annually. The
Boards of Directors of Employers shall also have the authority to terminate
Employee, subject to the provisions outlined in paragraph 7 of this Agreement.
3. Term and Duties.
---------------
(a) Term of Employment. This Agreement and the period of Employee's
------------------
employment under this Agreement shall be deemed to have commenced as of the
Effective Date and shall continue for a period of thirty-six (36) full
--
calendar months thereafter, unless earlier terminated pursuant to this
Agreement or unless Employee dies before the end of such thirty-six (36)
--
months, in which case the period of employment shall be deemed to continue
-4-
<PAGE>
until the end of the month of such death. On each anniversary of the
Effective Date, this Agreement and Employee's term of employment shall be
extended for an additional twelve (12) month period, unless Employee on the
--
one hand, or Employers on the other hand, shall give written notice to the
other, within the sixty (60)-day period immediately prior to the applicable
anniversary of the Effective Date, that Employee's term of employment
hereunder shall not be extended.
(b) Performance of Duties. During the period of employment hereunder,
---------------------
except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote substantially all of
his business time, attention, skill, and efforts to the faithful
performance of his duties hereunder. Employee's duties shall be divided
between Employers at the direction and in the discretion of the Boards of
Directors of Employers. Employee shall be entitled to reasonable
participation as a member in community, civic, or similar organizations and
the pursuit of personal investments which do not present any material
conflict of interest with Employers, or otherwise unfavorably affect the
performance of Employee's duties pursuant to this Agreement, except as set
forth in paragraph 4 of this Agreement.
(c) Office of Employee. The office of Employee shall be located at
------------------
the principal office of Employers in Atlanta, Georgia, or at such other
location within the State of Georgia as Employers may from time to time
designate; provided, however, that, there shall be no such relocation
without the consent of Employee and provided, further, that, in the event
such relocation requires Employee to move his principal residence,
Employers shall reimburse Employee for all his reasonable moving expenses.
-5-
<PAGE>
(d) No Other Agreement. Employee shall have no employment contract or
------------------
other written or oral agreement concerning employment with any entity or
person other than Employers during the term of his employment under this
Agreement.
(e) Uniqueness of Employee's Services. Employee hereby represents
---------------------------------
that the services to be performed by him under the terms of this Agreement
are of a special, unique, unusual, extraordinary, and intellectual
character which gives them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages and in an action at law.
Accordingly, Employee expressly agrees that Employers, in addition to any
rights or remedies which Employers may possess, shall be entitled to
injunctive and other equitable relief to prevent the breach of this
Agreement by Employee.
4. Compensation and Reimbursement of Expenses.
------------------------------------------
(a) Salary. Subject to the provisions of paragraph 7 hereof,
------
Employers shall pay Employee, as compensation for serving as Chairman of
the Board and Chief Executive Officer of Employer, an initial Base Salary
of $330,000.00 (effective as of January 1, 1998); such initial Base
-----------
Salary, or any increased Base Salary, shall be payable in substantially
equal installments in accordance with Employer's normal pay practices, but
not less frequently than monthly. Employee's Base Salary shall be
allocated among and be reflected upon the books and records of the Holding
Company. Employee's Base Salary and any Incentive Compensation (as defined
in paragraph 4(b) hereof) shall be reviewed and approved at least annually
by the Boards of Directors of Employers, or any committee(s) designated
thereby. Said Boards or Committee(s), if warranted in their discretion, may
increase Employee's Base Salary to reflect Employee's performance. In
addition to the forgoing, to the extent that
-6-
<PAGE>
Employee serves as a Director of any Employer or as a Director of any
subsidiary of any Employer, Employee shall be entitled to receive any
Director's fees customarily paid to members of such Board of Directors.
(b) Incentive Compensation. During the Term of Employment, Employee
----------------------
shall be eligible to participate in any incentive bonus plans maintained by
Employers for their executive officers. It is contemplated that an annual
incentive bonus plan will be maintained by Employers which will establish
individual performance goals for Employee each and every fiscal year during
the Term of Employment, with Employee being awarded a bonus ("Incentive
Compensation") of not less than forty percent (40%) of his then current
--
Base Salary upon the attainment, in the discretion of the Boards of
Directors of Employers or any committee(s) designated thereby, of
Employee's individual performance goals and certain specified corporate
objectives, all as set forth in the Premier Bancshares, Inc. Management
Incentive Plan. Employee's Incentive Compensation shall be allocated among
and be reflected upon the books and records of Employers. The payment to
Employee of any Incentive Compensation as aforesaid shall be made by the
Holding Company in accordance with the policy or policies established by
the Boards of Directors of Employers or any committee(s) designated
thereby. Notwithstanding anything contained in this Agreement to the
contrary, any increase to Employee's Base Salary and any Incentive
Compensation paid to Employee shall be (i) in compliance with regulations,
pronouncements, directives, or orders issued or promulgated by any
governing regulatory agency and with any agreements by and between
Employers and such regulatory agencies, (ii) consistent with the safe and
sound operation of Employers, (iii) closely monitored by the Boards of
Directors of
-7-
<PAGE>
Employers and (iv) comparable to such compensation paid to persons of
similar responsibilities and duties in other insured institutions of
similar size, in similar locations, and under similar circumstances
including financial condition and profitability.
(c) Reimbursement of Expenses. Employers shall pay or reimburse
-------------------------
Employee for all reasonable travel and other expenses incurred by Employee
in the performance of his obligations and duties under this Agreement as
provided in the applicable policies of Employers, as currently adopted or
as may be adopted in the future by the Boards of Directors of Employers.
(d) Provision for Business Development Expenses. In additional to the
-------------------------------------------
forgoing, Employers believe that their best interests will be more fully
served if Employee maintains active membership in or joins appropriate
business or social clubs and other professional associations. Accordingly,
Employers shall also reimburse Employee for the dues and business related
expenditures associated with Employee's membership in such appropriate
business or social clubs and such other professional associations which are
commensurate with his positions and approved by the Boards of Directors of
Employers. Additionally, to the extent that Employee is required to pay an
initiation fee to join such appropriate business or social clubs, Employers
will loan Employee an amount not to exceed twenty percent (20%) of
---
employee's Base Salary (the "Business Development Loan"). The Business
Development Loan shall be evidenced by an unsecured promissory note bearing
interest at the lowest prime rate charged by any bank or thrift subsidiary
of the Company, with all principal and interest due and payable on June 23,
2000 or upon the termination of Employee's employment, whichever shall
first occur. In the event that Employee is still
-8-
<PAGE>
employed by Employers on June 23, 2000, or, if no longer employed, was
terminated as a result of either an Event of Termination under paragraphs
7(b), (c) (d), or (e), then Employers will forgive the entire indebtedness
represented by the Business Development Loan, including the principal and
all accrued interest.
(e) Provision of Automobile. Employers, at Employee's election, shall
-----------------------
either (i) provide Employee with an automobile commensurate with Employee's
position(s) and shall reimburse Employee for all reasonable expenses
(including, without limitation, the cost of insurance coverage) relating to
the operation and maintenance of said automobile, or (ii) provide Employee
with a car allowance of $1,000 per month. Employers shall maintain, at
its/their expense, automobile liability insurance to protect Employee and
Employers, as their respective interest may appear, against claims arising
out of the use of said automobile (or any other motor vehicle) in the
course of Employee's employment hereunder.
(f) Financial Planning and Tax Preparation. In order to enable
--------------------------------------
Employee to fully focus on his duties hereunder, Employers shall provide
reimbursement to Employee for professional fees incurred by Employee for
estate planning and/or tax preparation in an amount not to exceed $5,000.
------
(g) "Golden Parachute" Provision. Notwithstanding anything
---------------------------
contained in this Agreement to the contrary, any payments made to Employee
pursuant to this Agreement, or otherwise to Employee, are subject to and
conditioned upon their compliance with 12 U.S.C. (S) 1828(k) and any
regulations promulgated thereunder.
5. Participation in Benefit Plans. The payments provided in paragraph 4,
------------------------------
6, and 7 hereof are in addition to any benefits to which Employee may be, or may
become, entitled to, under any
-9-
<PAGE>
group hospitalization, health, dental care, or sick leave plan; life insurance
or death benefit plan; travel or accident insurance; pension or retirement plan;
stock option or ownership plan; or other present or future group employee
benefit plan or program for which senior executive officers of Employers shall
be or shall become eligible. Said benefit shall include, without limitation,
major medical/dental insurance for Employee and his dependents.
6. Benefits Payable Upon Disability.
--------------------------------
(a) Disability Benefits. In the event of the Disability of Employee,
-------------------
Employers shall continue to pay Employee 100% of Employee's then current
----
Base Salary pursuant to paragraph 4(a) during the first twelve (12) months
--
of a continuous period of disability. It is provided, however, that in the
event Employee is disabled for a continuous period exceeding twelve (12)
--
months, Employers may, at their election, terminate this Agreement, in
which event payment of Employee's Base Salary shall cease.
(b) Disability Benefit Offset. Any amounts payable under paragraph
-------------------------
6(a) hereof shall be reduced by any amounts paid to Employee under any
other disability program or policy of insurance maintained by Employers.
7. Payments to Employee Upon Termination of Employment. The Boards of
---------------------------------------------------
Directors of Employers may terminate Employee's employment under this Agreement
at any time; but any termination other than Termination for Cause shall not
prejudice Employee's right to compensation or other benefits under this
Agreement. Employee may voluntarily terminate his employment under this
Agreement. The rights and obligations of Employers and Employee in the event of
such termination are set forth in this paragraph 7 as follows:
-10-
<PAGE>
(a) Termination for Cause. Employee shall have no right to
---------------------
compensation or other benefits for any period after a Termination for
Cause. Termination for Cause shall be determined by the Boards of
Directors of Employers in the reasonable exercise of their discretion and
acting in good faith, and shall include termination because of Employee's
personal dishonesty, incompetence, willful misconduct, breach of fiduciary
duties involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation (other than
traffic violations or similar offenses), or a final cease-and-desist order,
the regulatory suspension or removal of Employee as defined in paragraphs
9(a) and (b) hereof, the failure of Employee to follow reasonable written
instructions of the Boards of Directors of Employers, or a material breach
of Employee of any provision of this Agreement. The termination of
employment of Employee shall not be deemed to be a Termination for Cause
unless and until there shall have been delivered to Employee a copy of a
resolution duly adopted by the affirmative vote of not less than two-thirds
of the entire membership of the Boards of Employers at a meeting of the
respective Boards called and held for such purpose (after at least thirty
(30) days' prior notice of such meeting is provided to Employee and
Employee is given an opportunity, together with counsel, to be heard before
the Board), finding that, in the good faith opinion of the Board, Employee
is guilty of the conduct described herein and specifying the particulars
thereof in detail. Said Termination for Cause shall not be effective until
thirty (30) days after such resolution is adopted, during which time
Employee shall be afforded the opportunity to petition the Boards for
reconsideration of such resolution. The Boards of Directors of Employers,
in their discretion, may suspend Employee, with pay, for all or any portion
of the period of time from
-11-
<PAGE>
the delivery of the notice described herein until the effective time of the
Termination for Cause.
(b) Event of Termination Without Change of Control. Upon the
----------------------------------------------
occurrence of an Event of Termination, other than after a Change of
Control as provided in paragraph 7(c) hereof, Employers shall pay to
Employee, or in the event of his subsequent death, to his designated
beneficiary or beneficiaries, or to his estate, as the case may be, as
liquidated damages, in lieu of all other claims, a severance payment equal
to three (3) times Employee's Total Compensation (defined as the sum of the
-
then current Base Salary plus any Incentive Compensation paid to Employee
during the immediately preceding twelve (12) months), to be paid in full on
--
the last day of the month following the date of said Event of Termination.
(c) Event of Termination in Connection With a Change of Control. If,
-----------------------------------------------------------
during the term of this Agreement and within one (1) year immediately
-
following a Change of Control or within six (6) months immediately prior to
-
such Change of Control, Employee's employment with Employers under this
Agreement is terminated by an Event of Termination, then Employers shall
pay to Employee, or in the event of his subsequent death, to his designated
beneficiary or beneficiaries, or to his estate, as the case may be, as
liquidated damages, in lieu of all other claims, a severance payment equal
to three (3) times Employee's Total Compensation paid to Employee during
-
the immediately preceding twelve (12) months, to be paid in full on the
--
last day of the month following the date of said Event of Termination.
(d) Termination of Employment for Good Reason. If, during the term of
-----------------------------------------
this Agreement and within one (1) year immediately following a Change of
-
Control or within six
-12-
<PAGE>
(6) months immediately prior to such Change of Control, the status,
-
character, capacity, location, or circumstances of Employee's employment as
provided in paragraphs 2, 3, 4, 6 and 8 of this Agreement have been
materially and adversely altered by Employers, whether by
(i) any material breach of this Agreement by Employers
(including the failure of Employers to comply with paragraphs 2, 3, 4,
5, 6 and 8 of this Agreement);
(ii) any material and adverse change in the status,
responsibilities or prerequisites of Employee;
(iii) any assignment of duties materially and adversely
inconsistent with Employee's position and duties described in this
Agreement; or
(iv) the failure of Employers to assign this Agreement to a
successor in interest or the failure of the successor in interest to
explicitly assume and agree to be bound by this Agreement,
and Employee terminates his employment under this Agreement for that
reason, then Employers shall pay to Employee, or in the event of his
subsequent death, his designated beneficiary or beneficiaries, or his
estate, as the case may be, shall receive as liquidated damages, in lieu of
all other claims, a severance payment equal to three (3) times Employee's
Total Compensation, to be paid in full on the last day of the month
following the date of said termination.
(e) Transition Period After Change in Control. Employee may qualify
-----------------------------------------
for a termination benefit upon voluntary termination of this Agreement by
remaining in the employ of Employers for a period of twelve (12) months
following a Change of Control (the
-13-
<PAGE>
"Transition Period"). In order to qualify for a termination benefit under
this paragraph 7(e), Employee must provide Employers ninety (90) days'
written notice of his intent to exercise his rights under this paragraph
7(e) and must provide such notice to Employers between the end of the ninth
(9/th/) month of the Termination Period and the end of the twelfth (12/th/)
month of the Termination Period (the "Window"). In the event that Employee
continues in the employ of Employers until the end of the Termination
Period and properly provides Employers notice of his voluntary termination
during the Window, then Employers shall pay to Employee, or in the event of
his subsequent death, his designated beneficiary or beneficiaries, or his
estate, as the case may be, shall receive as liquidated damages, in lieu of
all other claims, a severance payment equal to three (3) times Employee's
Total Compensation, to be paid in full on the last day of the month
following the date of said termination. Any voluntary termination by
Employee during the Transition Period (except in accordance with paragraph
7(d) hereof) or without proper notice having been given during the Window
shall be treated as a voluntary termination under paragraph 7(g).
(f) Limits on Payments. In no event shall the payment(s) described
------------------
in paragraphs 7(c) or (d) exceed the amount permitted by Section 280G of
the Internal Revenue Code (as amended). Therefore, if the aggregate
present value (determined as of the date of the Change of Control in
accordance with the provisions of Section 280G of the Internal Revenue Code
[as amended] or any successor thereof and the regulations and rulings
thereunder ["Section 280G"]) of both the Severance Amount and all other
payments to Employee in the nature of compensation which are contingent on
a change in ownership or effective control of Employers or in the ownership
of a substantial portion of the assets of Employers (the
-14-
<PAGE>
"Aggregate Severance") would result in a parachute payment (as determined
under Section 280G) then the Aggregate Severance shall not be greater than
an amount equal to 2.99 multiplied by Employee's base amount (as determined
under Section 280G) for the base period (as determined under Section 280G).
In the event the Aggregate Severance is required to be reduced pursuant to
this paragraph 7(f), Employee shall be entitled to determine which portions
of the Aggregate Severance are to be reduced so that the Aggregate
Severance satisfies the limit set forth in the preceding sentence.
Employee's average annual compensation shall be based on the most recent
five taxable years ending before the Change of Control (or the period
during which Employee was employed by Employers if Employee has been
employed by Employers for less than five years). Should Employee be
assessed any excise tax as a result of the payment of Aggregate Severance
that complies with Section 280G, Employers shall pay all such assessed
excise taxes, but shall pay no other taxes assessed against Employee as a
result of the payment of Aggregate Severance.
(g) Voluntary Termination of Employment. Employee shall have no
-----------------------------------
right to compensation or other benefits under this Agreement for any period
following the voluntary termination of Employee's employment by Employee,
except as provided in paragraphs 7(d) and (e) hereof.
(h) Additional Payments After Termination. In the event that
-------------------------------------
Employee's employment is terminated pursuant to paragraphs 7(b), (c), (d),
or (e) above, then Employers shall pay Employee an additional amount equal
to Employee's cost of COBRA health continuation coverage for Employee and
his eligible dependants for the period during which
-15-
<PAGE>
Employee and his eligible dependants are entitled to receive COBRA
continuation coverage from Employers under the applicable laws, rules and
regulations governing COBRA.
(i) Allocation of Payments. Any payments made by Employers to
----------------------
Employee pursuant to this paragraph 7 shall be allocated among and be
reflected upon the books and records of Employers.
8. Vacation and Sick Leave. Employee shall be entitled, without loss of
-----------------------
pay, to absent himself voluntarily from the performance of his duties under this
Agreement in accordance with the terms set forth below, all such voluntary
absences to count as vacation time, provided that:
(a) Employee shall be entitled to an annual vacation in accordance
with the policies that the Boards of Directors of Employers periodically
establish(es) for senior management employees of Employers.
(b) Employee shall not receive any additional compensation from
Employers on account of his failure to take a vacation, and Employee shall
not accumulate unused vacation from one fiscal year to the next, except in
either case to the extent authorized by the Boards of Directors of
Employers.
(c) In addition to the aforesaid paid vacations, Employee shall be
entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment obligations with Employers for such
additional periods of time and for such valid and legitimate reasons as the
Boards of Directors of Employers may in their discretion approve. It is
also provided that the Boards of Directors of Employers may grant to
Employee a leave or leaves of absence, with or without pay, at such time or
times and upon such terms and conditions as the Boards of Directors of
Employers their discretion determine.
-16-
<PAGE>
(d) Employee shall be further entitled to an annual sick leave benefit
as may be established by the Boards of Directors of Employers.
9. Regulatory Suspension.
---------------------
(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employers by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(3) or (g)(1), the obligations of Employers under this
Agreement shall be suspended as of the date of service of such notice,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, Employers may in their discretion (i) pay Employee all or part
of the compensation withheld while its contract obligations were suspended
and (ii) reinstate in whole or in part any of its obligations which were
suspended.
(b) If Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employers by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(4) or (g)(1), all obligations of Employers under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the parties hereto shall not be affected.
10. Nondisclosure of Confidential Information. Employee acknowledges that
-----------------------------------------
he possesses confidential information of a special and unique nature and value
affecting and relating to Employers' business, including, without limitation,
the identity of the customers, deposits business records, other trade secrets,
and other similar confidential information relating to Employers and the
business of each (all the foregoing being hereinafter collectively referred to
as "Confidential Information"). Employee recognizes and acknowledges that all
Confidential Information is the
-17-
<PAGE>
exclusive property of Employers respectively, constitutes trade secrets of
Employers, is material and confidential, and greatly affects the goodwill and
the effective and successful conduct of the business of Employers. As a
material inducement to Employers to enter into this Agreement and to employ
Employee, 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 Employers so long as it is not
known by competitors of Employers and that Employers have taken reasonable steps
to keep all such information and trade secrets confidential.
11. Source of Payments. All payments provided in paragraphs 4, 6, and 7
------------------
hereof shall be paid in cash from the general funds of Employers as provided
herein, and no special or separate fund shall be established by Employers, and
no other segregation of assets shall be made to assure payment. Employee shall
have no right, title, or interest in or to any investments which Employers may
make to meet the obligations hereunder.
12. Injunctions. In view of the irreparable harm and damage which
-----------
Employers would sustain as a result of a breach by Employee of the covenants or
agreements under paragraph 10 hereof, and in view of the lack of an adequate
remedy at law to protect Employers' interests, Employers shall have the right to
receive, and Employee hereby consents to the issuance of, a permanent injunction
enjoining Employee from any violation of the covenants and agreements set forth
in paragraph 10 hereof, which injunction shall be of a duration consistent with
the provisions
-18-
<PAGE>
of paragraph 10 hereof. The foregoing remedy shall be in addition to, and not
in limitation of, any other rights or remedies to which Employers are or may be
entitled at law or in equity respecting this Agreement.
13. Attorneys' Fees. In the event any party hereto is required to engage
---------------
in legal action against any other party hereto, either as plaintiff or
defendant, in order to enforce or defend any of its or his rights under this
Agreement, and such action results in a final judgment in favor of one or more
parties, then the party or parties against whom said final judgment is obtained
shall reimburse the prevailing party or parties for all legal fees and expenses
incurred by the prevailing party or parties in asserting or defending its or his
rights hereunder. It is provided, however, that, prior to a final judgment,
Employers shall advance to Employee the reasonable legal fees and expenses
incurred by Employee in connection with Employees' engagement in any legal
action against Employers, either as plaintiff or defendant, in order to enforce
or defend any of Employee's rights under this Agreement. Such advances shall be
made within thirty (30) days after receiving copies of invoices presented by
Employee for such reasonable legal fees and expenses. Employee shall have the
obligation to reimburse Employers within sixty (60) days following the final
disposition of the matter (including appeals) to the full extent of the
aggregate advances unless Employee shall have prevailed in asserting or
defending his rights hereunder.
14. Federal Income Tax Withholding. Employers may withhold from any
------------------------------
benefits payable under this Agreement all federal, state, city, or other taxes
as shall be required pursuant to any law or governmental regulation or ruling.
-19-
<PAGE>
15. Effect of Prior Agreements. This Agreement contains the entire
--------------------------
understanding between the parties hereto and supersedes any prior employment
agreement and any contemporaneous oral agreement or understanding by, between,
or among Employers and Employee.
16. General Provisions.
------------------
(a) Nonassignability. Neither this Agreement nor any right or
----------------
interest hereunder shall be assignable by Employee, his beneficiaries or
legal representatives, without the written consent of Employers; provided,
however, that nothing in this paragraph 16(a) shall preclude (i) Employee
from designating a beneficiary to receive any benefits payable hereunder
upon his death, or (ii) the executors, administrators, or other legal
representatives of Employee or his estate from assigning any rights
hereunder to the person or persons entitled thereto.
(b) No Attachment. Except as required by law, no right to receive
-------------
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void,
and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and
-----------------
inure to the benefit of, Employers and Employee and their respective heirs,
successors, assigns, and legal representatives.
-20-
<PAGE>
17. Modification and Waiver.
-----------------------
(a) Amendment of Agreement. This Agreement may not be modified or
----------------------
amended except by an instrument in writing, signed by the parties hereto,
and which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to
------
have been waived, nor shall there be any estoppel against the enforcement
of any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
18. Severability. If for any reason any provision of this Agreement is
------------
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
19. Headings. The headings of paragraphs herein are included solely for
--------
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
-21-
<PAGE>
20. Governing Law. This Agreement has been executed and delivered in the
-------------
State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
21. Rights of Third Parties. Nothing herein expressed or implied is
-----------------------
intended to or shall be construed to confer upon or give to any person, firm, or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement.
22. Notices. All notices, requests, demands, and other communications
-------
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the United States by registered or certified mail,
or personally delivered, to the party entitled thereto at the address stated
below or to such changed address as the addressee may have given by a similar
notice:
To Employers: Chairman, Compensation Committee
Board of Directors
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
-and-
Copied to: Steven S. Dunlevie, Esq.
Womble Carlyle Sandridge & Rice, PLLC
Suite 700
1275 Peachtree Street
Atlanta, Georgia 30309
To Employee: Mr. Darrell D. Pittard
4270 West Club Lane
Atlanta, Georgia 30319
-22-
<PAGE>
IN WITNESS WHEREOF, Employers have caused this Agreement to be
executed and their seal to be affixed hereunto by their duly authorized
officers, and Employee has signed this Agreement, as of the Effective Date.
ATTEST: PREMIER BANCSHARES, INC.
/s/ By: /s/ Darrell D. Pittard
- ----------------------------- ------------------------------
Secretary Darrell D. Pittard
Chairman of the Board
ATTEST: PREMIER LENDING CORPORATION
/s/ By: /s/ Darrell D. Pittard
- ----------------------------- ------------------------------
Secretary Darrell D. Pittard
Chairman of the Board
ATTEST: PREMIER BANK
/s/ By: /s/ Darrell D. Pittard
- ----------------------------- -------------------------------
Secretary Darrell D. Pittard
Chairman of the Board
/s/ /s/ Darrell D. Pittard (SEAL)
- ----------------------------- -------------------------------------
Witness Darrell D. Pittard
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<PAGE>
EXHIBIT 10.12
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT ("Agreement") is made and entered into effective as of the
1/st/ day of July, 1998 (the "Effective Date"), by and among PREMIER BANCSHARES,
INC., a Georgia corporation ( the "Holding Company"), PREMIER BANK, a wholly-
owned Georgia banking subsidiary of the Holding Company (the "Bank")
(collectively, "Employers") and ROBERT C. OLIVER ("Employee") and supercedes and
replaces all other employment agreements between Employee and any of Employers.
W I T N E S S E T H:
WHEREAS, as of the Effective Date, Employee was the Vice Chairman of the
Board and Chief Operating Officer of the Holding Company;
WHEREAS, as of the Effective Date, Employee was the Vice Chairman of the
Board and Chief Operating Executive of the Bank;
WHEREAS, the Boards of Directors of Employers consider the establishment
and maintenance of highly competent and skilled management personnel for
Employers to be essential to protecting and enhancing their best interests;
WHEREAS, the Boards of Directors of Employers are desirous of inducing
Employee to remain in the employ of Employers, subject to the terms and
conditions hereof;
WHEREAS, Employee is desirous of remaining in the employ of Employers,
subject to the terms and conditions hereof; and
WHEREAS, the parties agree that the provisions of this Agreement shall
control with respect to the rights and obligations of the parties resulting from
the employment of Employee by Employers;
<PAGE>
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definitions. The following terms used in this Agreement shall have the
following meanings:
(a) "Base Salary" shall mean the annual compensation (excluding
Incentive Compensation as defined in (e) of this paragraph and other
benefits) payable or paid to Employee pursuant to paragraph 4(a) of this
Agreement.
(b) "Change of Control" shall be deemed to have occurred if:
(i) Upon the consummation of any transaction in which any
person (or persons acting in concert), partnership, corporation, or
other organization shall own, control, or hold with the power to
vote more than fifty percent (50%) of any class of voting securities
---
of the Holding Company;
(ii) Upon the consummation of any transaction in which the
Holding Company, or substantially all of the assets of the Holding
Company, shall be sold or transferred to, or consolidated or merged
with, another corporation; or
(iii) Upon the consummation of any transaction in which the Bank,
or substantially all of the assets of the Bank, shall be sold or
transferred to, or consolidated or merged with, another corporation
which is not a majority owned subsidiary of the Holding Company;
provided, however, if the Holding Company or the Bank shall become a
subsidiary of another corporation or shall be merged or consolidated
into another corporation and a majority of the outstanding voting
shares
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<PAGE>
of the parent or surviving corporation are owned immediately after
such acquisition, merger, or consolidation by the owners of a majority
of the voting shares of the Holding Company immediately before such
acquisition, merger, or consolidation, then no Change of Control shall
be deemed to have occurred.
(c) "Disability" shall mean a condition for which benefits would be
payable under any long-term disability insurance coverage (without regard
to the application of any elimination period requirement) then provided to
Employee by Employers; or, if no such coverage is then being provided, the
inability of Employee to perform the material aspects of Employee's duties
under this Agreement for a period of at least ninety (90) consecutive days,
--
as determined by an independent physician selected with the approval of
Employers and Employee.
(d) "Event of Termination" shall mean the termination by Employers of
Employee's employment under this Agreement by written notice delivered to
Employee for any reason other than Termination for Cause as defined in (g)
of this paragraph or termination following a continuous period of
disability exceeding twelve (12) calendar months pursuant to paragraph 6(a)
--
of this Agreement.
(e) "Incentive Compensation" shall mean that compensation payable or
paid to Employee pursuant to paragraph 4(b) of this Agreement.
(f) "Severance Amount" shall have the same meaning as the term
"parachute payment" defined in Section 280G(b)(2) of the Internal Revenue
Code (as amended).
(g) "Termination for Cause" shall have the meaning provided in
paragraph 7(a) of this Agreement.
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<PAGE>
2. Employment. Employers agree to continue Employee in their employ, and
----------
Employee agrees to remain in the employ of the Holding Company as Vice Chairman
of the Board and Chief Operating Officer of the Holding Company and to remain in
the employ of the Bank as Vice Chairman of the Board and Chief Operating
Executive of the Bank, for the period stated in paragraph 3(a) hereof and upon
the other terms and conditions herein provided. Employee agrees to perform
faithfully such services as are reasonably consistent with his positions and
shall from time to time be assigned to him by the Boards of Directors of the
Employers in a trustworthy and businesslike manner for the purpose of advancing
the interests of Employers. At all times, Employee shall manage and conduct the
business of Employers in accordance with the policies established by the Boards
of Directors of Employers, and in compliance with applicable regulations
promulgated by governing regulatory agencies. Responsibility for the
supervision of Employee shall rest with the Boards of Directors of Employers,
which shall review Employee's performance at least annually. The Boards of
Directors of Employers shall also have the authority to terminate Employee,
subject to the provisions outlined in paragraph 7 of this Agreement.
3. Term and Duties.
---------------
(a) Term of Employment. This Agreement and the period of Employee's
------------------
employment under this Agreement shall be deemed to have commenced as of the
Effective Date and shall continue for a period of thirty-six (36) full
--
calendar months thereafter, unless earlier terminated pursuant to this
Agreement or unless Employee dies before the end of such thirty-six (36)
--
months, in which case the period of employment shall be deemed to continue
until the end of the month of such death. On each anniversary of the
Effective Date, this Agreement and Employee's term of employment shall be
extended for an additional twelve
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<PAGE>
(12) month period, unless Employee on the one hand, or Employers on the
--
other hand, shall give written notice to the other, within the sixty (60)-
day period immediately prior to the applicable anniversary of the Effective
Date, that Employee's term of employment hereunder shall not be extended.
(b) Performance of Duties. During the period of employment hereunder,
---------------------
except for periods of illness, disability, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote substantially all of
his business time, attention, skill, and efforts to the faithful
performance of his duties hereunder. Employee's duties shall be divided
between Employers at the direction and in the discretion of the Boards of
Directors of Employers. Employee shall be entitled to reasonable
participation as a member in community, civic, or similar organizations and
the pursuit of personal investments which do not present any material
conflict of interest with Employers, or otherwise unfavorably affect the
performance of Employee's duties pursuant to this Agreement. Employee may
be asked, from time to time, to serve as an officer or director of any
subsidiary of Employers but shall be entitled to no additional compensation
for such services, except as set forth in paragraph 4 of this Agreement.
(c) Office of Employee. The office of Employee shall be located at
------------------
the principal office of Employers in Atlanta, Georgia, or at such other
location within the State of Georgia as Employers may from time to time
designate; provided, however, that, there shall be no such relocation
without the consent of Employee and provided, further, that, in the event
such relocation requires Employee to move his principal residence,
Employers shall reimburse Employee for all his reasonable moving expenses.
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<PAGE>
(d) No Other Agreement. Employee shall have no employment contract or
------------------
other written or oral agreement concerning employment with any entity or
person other than Employers during the term of his employment under this
Agreement.
(e) Uniqueness of Employee's Services. Employee hereby represents
---------------------------------
that the services to be performed by him under the terms of this Agreement
are of a special, unique, unusual, extraordinary, and intellectual
character which gives them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages and in an action at law.
Accordingly, Employee expressly agrees that Employers, in addition to any
rights or remedies which Employers may possess, shall be entitled to
injunctive and other equitable relief to prevent the breach of this
Agreement by Employee.
4. Compensation and Reimbursement of Expenses.
------------------------------------------
(a) Salary. Subject to the provisions of paragraph 7 hereof,
------
Employers shall pay Employee, as compensation for serving as Vice Chairman
of the Board and Chief Operating Officer of Employer and as Vice Chairman
of the Board and Chief Operating Executive of the Bank, an initial Base
Salary of $242,000.00; such initial Base Salary, or any increased Base
-----------
Salary, shall be payable in substantially equal installments in accordance
with Employers' normal pay practices, but not less frequently than monthly.
Employee's Base Salary shall be allocated between and be reflected upon the
books and records of Employers. Employee's Base Salary and any Incentive
Compensation (as defined in paragraph 4(b) hereof) shall be reviewed and
approved at least annually by the Boards of Directors of Employers, or any
committee(s) designated thereby. Said Boards or Committee(s), if warranted
in its/their discretion, may increase Employee's Base Salary to reflect
Employee's
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<PAGE>
performance. In addition to the forgoing, to the extent that Employee
serves as a Director of any Employer or as a Director of any subsidiary of
any Employer, Employee shall be entitled to receive any Director's fees
customarily paid to members of such Board of Directors.
(b) Incentive Compensation. During the Term of Employment, Employee
----------------------
shall be eligible to participate in any incentive bonus plans maintained by
Employers for their executive officers. It is contemplated that an annual
incentive bonus plan will be maintained by Employers which will establish
individual performance goals for Employee each and every fiscal year during
the Term of Employment, with Employee being awarded a bonus ("Incentive
Compensation") of not less than thirty percent (30%) of his then current
---
Base Salary upon the attainment, in the discretion of the Boards of
Directors of Employers or any committee(s) designated thereby, of
Employee's individual performance goals and certain specified corporate
objectives, all as set forth in the Premier Bancshares, Inc. Management
Incentive Plan. Employee's Incentive Compensation shall be allocated
between and be reflected upon the books and records of Employers. The
payment to Employee of any Incentive Compensation as aforesaid shall be
made by Employers in accordance with the policy or policies established by
the Boards of Directors of Employers or any committee(s) designated
thereby. Notwithstanding anything contained in this Agreement to the
contrary, any increase to Employee's Base Salary and any Incentive
Compensation paid to Employee shall be (i) in compliance with regulations,
pronouncements, directives, or orders issued or promulgated by any
governing regulatory agency and with any agreements by and between
Employers and such regulatory agencies, (ii) consistent with the safe and
sound operation
-7-
<PAGE>
of Employers, (iii) closely monitored by the Boards of Directors of
Employers and (iv) comparable to such compensation paid to persons of
similar responsibilities and duties in other insured institutions of
similar size, in similar locations, and under similar circumstances
including financial condition and profitability.
(c) Reimbursement of Expenses. Employers shall pay or reimburse
-------------------------
Employee for all reasonable travel and other expenses incurred by Employee
in the performance of his obligations and duties under this Agreement as
provided in the applicable policies of Employers, as currently adopted or
as may be adopted in the future by the Boards of Directors of Employers.
(d) Provision for Business Development Expenses. In additional to the
-------------------------------------------
foregoing, Employers believe that their best interests will be more fully
served if Employee maintains active membership in or joins appropriate
business or social clubs and other professional associations. Accordingly,
Employers shall also reimburse Employee for the dues and business related
expenditures associated with Employee's membership in such appropriate
business or social clubs and such other professional associations which are
commensurate with his positions and approved by the Boards of Directors of
Employers. Additionally, to the extent that Employee is required to pay an
initiation fee to join such appropriate business or social clubs, Employers
will loan Employee an amount not to exceed twenty percent (20%) of
---
employee's Base Salary (the "Business Development Loan"). The Business
Development Loan shall be evidenced by an unsecured promissory note bearing
interest at the lowest prime rate charged by any bank or thrift subsidiary
of Employers, with all principal and interest due and payable on June 23,
2000, or upon the termination of
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<PAGE>
Employee's employment, whichever shall first occur. In the event that
Employee is still employed by Employers on June 23, 2000, or, if no longer
employed, was terminated as a result of either an Event of Termination
under paragraphs 7(b), (c), (d) or (e), then Employers will forgive the
entire indebtedness represented by the Business Development Loan, including
the principal and all accrued interest.
(e) Provision of Automobile. Employers shall provide Employee with an
-----------------------
automobile commensurate with Employee's position(s) and shall reimburse
Employee for all reasonable expenses (including, without limitation, the
cost of insurance coverage) relating to the operation and maintenance of
said automobile. Employers shall maintain, at their expense, automobile
liability insurance to protect Employee and Employers, as their respective
interest may appear, against claims arising out of the use of said
automobile (or any other motor vehicle) in the course of Employee's
employment hereunder.
(f) Financial Planning and Tax Preparation. In order to enable
--------------------------------------
Employee to fully focus on his duties hereunder, Employers shall provide
reimbursement to Employee for professional fees incurred by Employee for
estate planning and/or tax preparation in an amount not to exceed $5,000.
------
(g) "Golden Parachute" Provision. Notwithstanding anything contained
----------------------------
in this Agreement to the contrary, any payments made to Employee pursuant
to this Agreement, or otherwise to Employee, are subject to and conditioned
upon compliance with 12 U.S.C. (S) 1828(k) and any regulations promulgated
thereunder.
5. Participation in Benefit Plans. The payments provided in paragraph 4,
------------------------------
6, and 7 hereof are in addition to any benefits to which Employee may be, or may
become, entitled to, under any
-9-
<PAGE>
group hospitalization, health, dental care, or sick leave plan; life insurance
or death benefit plan; travel or accident insurance; pension or retirement plan;
stock option or ownership plan; or other present or future group employee
benefit plan or program for which senior executive officers of Employers shall
be or shall become eligible. Said benefit shall include, without limitation,
major medical/dental insurance for Employee and his dependents.
6. Benefits Payable Upon Disability.
--------------------------------
(a) Disability Benefits. In the event of the Disability of Employee,
-------------------
Employers shall continue to pay Employee 100% of Employee's then current
----
Base Salary pursuant to paragraph 4(a) during the first twelve (12) months
--
of a continuous period of disability. It is provided, however, that in the
event Employee is disabled for a continuous period exceeding twelve (12)
--
months, Employers may, at their election, terminate this Agreement, in
which event payment of Employee's Base Salary shall cease.
(b) Disability Benefit Offset. Any amounts payable under paragraph
-------------------------
6(a) hereof shall be reduced by any amounts paid to Employee under any
other disability program or policy of insurance maintained by Employers.
7. Payments to Employee Upon Termination of Employment. The Boards of
---------------------------------------------------
Directors of Employers may terminate Employee's employment under this Agreement
at any time; but any termination other than Termination for Cause shall not
prejudice Employee's right to compensation or other benefits under this
Agreement. Employee may voluntarily terminate his employment under this
Agreement. The rights and obligations of Employers and Employee in the event of
such termination are set forth in this paragraph 7 as follows:
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<PAGE>
(a) Termination for Cause. Employee shall have no right to
---------------------
compensation or other benefits for any period after a Termination for
Cause. Termination for Cause shall be determined by the Boards of
Directors of Employers in the reasonable exercise of their discretion and
acting in good faith, and shall include termination because of Employee's
personal dishonesty, incompetence, willful misconduct, breach of fiduciary
duties involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation (other than
traffic violations or similar offenses), or a final cease-and-desist order,
the regulatory suspension or removal of Employee as defined in paragraphs
9(a) and (b) hereof, the failure of Employee to follow reasonable written
instructions of the Boards of Directors of Employers, or a material breach
of Employee of any provision of this Agreement. The termination of
employment of Employee shall not be deemed to be a Termination for Cause
unless and until there shall have been delivered to Employee a copy of a
resolution duly adopted by the affirmative vote of not less than two-thirds
of the entire membership of the Boards of Employers at a meeting of the
respective Boards called and held for such purpose (after at least thirty
(30) days' prior notice of such meeting is provided to Employee and
Employee is given an opportunity, together with counsel, to be heard before
the Board), finding that, in the good faith opinion of the Board, Employee
is guilty of the conduct described herein and specifying the particulars
thereof in detail. Said Termination for Cause shall not be effective until
thirty (30) days after such resolution is adopted, during which time
Employee shall be afforded the opportunity to petition the Boards for
reconsideration of such resolution. The Boards of Directors of Employers,
in their discretion, may suspend Employee, with pay, for all or any portion
of the period of time from
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<PAGE>
the delivery of the notice described herein until the effective time of the
Termination for Cause.
(b) Event of Termination Without Change of Control. Upon the
----------------------------------------------
occurrence of an Event of Termination, other than after a Change of
Control as provided in paragraph 7(c) hereof, Employers shall pay to
Employee, or in the event of his subsequent death, to his designated
beneficiary or beneficiaries, or to his estate, as the case may be, as
liquidated damages, in lieu of all other claims, a severance payment equal
to three (3) times Employee's Total Compensation (defined as the sum of
-
then current Base Salary plus any Incentive Compensation paid to Employee
during the immediately preceding twelve (12) months), to be paid in full on
--
the last day of the month following the date of said Event of Termination.
(c) Event of Termination in Connection With a Change of Control. If,
-----------------------------------------------------------
during the term of this Agreement and within one (1) year immediately
-
following a Change of Control or within six (6) months immediately prior to
-
such Change of Control, Employee's employment with Employers under this
Agreement is terminated by an Event of Termination, then Employers shall
pay to Employee, or in the event of his subsequent death, to his designated
beneficiary or beneficiaries, or to his estate, as the case may be, as
liquidated damages, in lieu of all other claims, a severance payment equal
to three (3) times Employee's Total Compensation paid to Employee during
-
the immediately preceding twelve (12) months, to be paid in full on the
--
last day of the month following the date of said Event of Termination.
(d) Termination of Employment for Good Reason. If, during the term of
-----------------------------------------
this Agreement and within one (1) year immediately following a Change of
-
Control or within six
-12-
<PAGE>
(6) months immediately prior to such Change of Control, the status,
-
character, capacity, location, or circumstances of Employee's employment as
provided in paragraphs 2, 3, 4, 6 and 8 of this Agreement have been
materially and adversely altered by Employers, whether by
(i) any material breach of this Agreement by Employers
(including the failure of Employers to comply with paragraphs 2, 3, 4,
5, 6 and 8 of this Agreement);
(ii) any material and adverse change in the status,
responsibilities or prerequisites of Employee;
(iii) any assignment of duties materially and adversely
inconsistent with Employee's position and duties described in this
Agreement; or
(iv) the failure of Employers to assign this Agreement to a
successor in interest or the failure of the successor in interest to
explicitly assume and agree to be bound by this Agreement,
and Employee terminates his employment under this Agreement for that
reason, then Employers shall pay to Employee, or in the event of his
subsequent death, his designated beneficiary or beneficiaries, or his
estate, as the case may be, shall receive as liquidated damages, in lieu of
all other claims, a severance payment equal to three (3) times Employee's
Total Compensation, to be paid in full on the last day of the month
following the date of said termination.
(e) Transition Period After Change in Control. Employee may qualify
-----------------------------------------
for a termination benefit upon voluntary termination of this Agreement by
remaining in the employ of Employers for a period of twelve (12) months
following a Change of Control (the
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<PAGE>
"Transition Period"). In order to qualify for a termination benefit under
this paragraph 7(e), Employee must provide Employers ninety (90) days'
written notice of his intent to exercise his rights under this paragraph
7(e) and must provide such notice to Employers between the end of the ninth
(9/th/) month of the Termination Period and the end of the twelfth (12/th/)
month of the Termination Period (the "Window"). In the event that Employee
continues in the employ of Employers until the end of the Termination
Period and properly provides Employers notice of his voluntary termination
during the Window, then Employers shall pay to Employee, or in the event of
his subsequent death, his designated beneficiary or beneficiaries, or his
estate, as the case may be, shall receive as liquidated damages, in lieu of
all other claims, a severance payment equal to three (3) times Employee's
Total Compensation, to be paid in full on the last day of the month
following the date of said termination. Any voluntary termination by
Employee during the Transition Period (except in accordance with paragraph
7(d) hereof) or without proper notice having been given during the Window
shall be treated as a voluntary termination under paragraph 7(g).
(f) Limits on Payments. In no event shall the payment(s) described in
------------------
paragraphs 7(c), (d) or (e) exceed the amount permitted by Section 280G of
the Internal Revenue Code (as amended). Therefore, if the aggregate
present value (determined as of the date of the Change of Control in
accordance with the provisions of Section 280G of the Internal Revenue Code
[as amended] or any successor thereof and the regulations and rulings
thereunder ["Section 280G"]) of both the Severance Amount and all other
payments to Employee in the nature of compensation which are contingent on
a change in ownership or effective control of Employers or in the ownership
of a substantial portion of the assets of
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<PAGE>
Employers (the "Aggregate Severance") would result in a parachute payment
(as determined under Section 280G) then the Aggregate Severance shall not
be greater than an amount equal to 2.99 multiplied by Employee's base
amount (as determined under Section 280G) for the base period (as
determined under Section 280G). In the event the Aggregate Severance is
required to be reduced pursuant to this paragraph 7(f), Employee shall be
entitled to determine which portions of the Aggregate Severance are to be
reduced so that the Aggregate Severance satisfies the limit set forth in
the preceding sentence. Employee's average annual compensation shall be
based on the most recent five taxable years ending before the Change of
Control (or the period during which Employee was employed by Employers if
Employee has been employed by Employers for less than five years). Should
Employee be assessed any excise tax as a result of the payment of Aggregate
Severance that complies with Section 280G, Employers shall pay all such
assessed excise taxes, but shall pay no other taxes assessed against
Employee as a result of the payment of Aggregate Severance.
(g) Voluntary Termination of Employment. Employee shall have no
-----------------------------------
right to compensation or other benefits under this Agreement for any period
following the voluntary termination of Employee's employment by Employee,
except as provided in paragraphs 7(d) and (e) hereof.
(h) Additional Payments After Termination. In the event that
-------------------------------------
Employee's employment is terminated pursuant to paragraphs 7(b), (c), (d)
or (e) above, then Employers shall pay Employee an additional amount equal
to Employee's cost of COBRA health continuation coverage for Employee and
his eligible dependants for the period during which
-15-
<PAGE>
Employee and his eligible dependants are entitled to receive COBRA
continuation coverage from Employers under the applicable laws, rules and
regulations governing COBRA.
(i) Allocation of Payments. Any payments made by Employers to
----------------------
Employee pursuant to this paragraph 7 shall be allocated between and be
reflected upon the books and records of Employers.
8. Vacation and Sick Leave. Employee shall be entitled, without loss of
-----------------------
pay, to absent himself voluntarily from the performance of his duties under this
Agreement in accordance with the terms set forth below, all such voluntary
absences to count as vacation time, provided that:
(a) Employee shall be entitled to an annual vacation in accordance
with the policies that the Boards of Directors of Employers periodically
establish(es) for senior management employees of Employers.
(b) Employee shall not receive any additional compensation from
Employers on account of his failure to take a vacation, and Employee shall
not accumulate unused vacation from one fiscal year to the next, except in
either case to the extent authorized by the Boards of Directors of
Employers.
(c) In addition to the aforesaid paid vacations, Employee shall be
entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment obligations with Employers for such
additional periods of time and for such valid and legitimate reasons as the
Boards of Directors of Employers may in their discretion approve. It is
also provided that the Boards of Directors of Employers may grant to
Employee a leave or leaves of absence, with or without pay, at such time or
times and upon such terms and conditions as the Boards of Directors of
Employers in their discretion determine.
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<PAGE>
(d) Employee shall be further entitled to an annual sick leave benefit
as may be established by the Boards of Directors of Employers.
9. Regulatory Suspension.
---------------------
(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employers by a notice served
under Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(3) or (g)(1), the obligations of Employers under this
Agreement shall be suspended as of the date of service of such notice,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, Employers may in their discretion (i) pay Employee all or part
of the compensation withheld while their contract obligations were
suspended and (ii) reinstate in whole or in part any of their obligations
which were suspended.
(b) If Employee is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employers by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. (S) 1818(e)(4) or (g)(1), all obligations of Employers under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the parties hereto shall not be affected.
10. Nondisclosure of Confidential Information. Employee acknowledges that
-----------------------------------------
he possesses confidential information of a special and unique nature and value
affecting and relating to Employers' business, including, without limitation,
the identity of the customers, deposits business records, other trade secrets,
and other similar confidential information relating to Employers and the
business of each (all the foregoing being hereinafter collectively referred to
as "Confidential Information"). Employee recognizes and acknowledges that all
Confidential Information is the
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<PAGE>
exclusive property of Employers, constitutes trade secrets of Employers, is
material and confidential, and greatly affects the goodwill and the effective
and successful conduct of the business of Employers. As a material inducement
to Employers to enter into this Agreement and to employ Employee, 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 Employers so long as it is not known by competitors
of Employers and that Employers have taken reasonable steps to keep all such
information and trade secrets confidential.
11. Source of Payments. All payments provided in paragraphs 4, 6, and 7
------------------
hereof shall be paid in cash from the general funds of Employers as provided
herein, and no special or separate fund shall be established by Employers, and
no other segregation of assets shall be made to assure payment. Employee shall
have no right, title, or interest in or to any investments which Employers may
make to meet the obligations hereunder.
12. Injunctions. In view of the irreparable harm and damage which
-----------
Employers would sustain as a result of a breach by Employee of the covenants or
agreements under paragraph 10 hereof, and in view of the lack of an adequate
remedy at law to protect Employers' interests, Employers shall have the right to
receive, and Employee hereby consents to the issuance of, a permanent injunction
enjoining Employee from any violation of the covenants and agreements set forth
in paragraph 10 hereof, which injunction shall be of a duration consistent with
the provisions
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<PAGE>
of paragraph 10 hereof. The foregoing remedy shall be in addition to, and not
in limitation of, any other rights or remedies to which Employers are or may be
entitled at law or in equity respecting this Agreement.
13. Attorneys' Fees. In the event any party hereto is required to engage
---------------
in legal action against any other party hereto, either as plaintiff or
defendant, in order to enforce or defend any of their or his rights under this
Agreement, and such action results in a final judgment in favor of one or more
parties, then the party or parties against whom said final judgment is obtained
shall reimburse the prevailing party or parties for all legal fees and expenses
incurred by the prevailing party or parties in asserting or defending their or
his rights hereunder. It is provided, however, that, prior to a final judgment,
Employers shall advance to Employee the reasonable legal fees and expenses
incurred by Employee in connection with Employees' engagement in any legal
action against Employers, either as plaintiff or defendant, in order to enforce
or defend any of Employee's rights under this Agreement. Such advances shall be
made within thirty (30) days after receiving copies of invoices presented by
Employee for such reasonable legal fees and expenses. Employee shall have the
obligation to reimburse Employers within sixty (60) days following the final
disposition of the matter (including appeals) to the full extent of the
aggregate advances unless Employee shall have prevailed in asserting or
defending his rights hereunder.
14. Federal Income Tax Withholding. Employers may withhold from any
------------------------------
benefits payable under this Agreement all federal, state, city, or other taxes
as shall be required pursuant to any law or governmental regulation or ruling.
-19-
<PAGE>
15. Effect of Prior Agreements. This Agreement contains the entire
--------------------------
understanding between the parties hereto and supersedes any prior employment
agreement and any contemporaneous oral agreement or understanding by, between,
or among Employers and Employee.
16. General Provisions.
------------------
(a) Nonassignability. Neither this Agreement nor any right or
----------------
interest hereunder shall be assignable by Employee, his beneficiaries or
legal representatives, without the written consent of Employers; provided,
however, that nothing in this paragraph 16(a) shall preclude (i) Employee
from designating a beneficiary to receive any benefits payable hereunder
upon his death, or (ii) the executors, administrators, or other legal
representatives of Employee or his estate from assigning any rights
hereunder to the person or persons entitled thereto.
(b) No Attachment. Except as required by law, no right to receive
-------------
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void,
and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and
-----------------
inure to the benefit of, Employers and Employee and their respective heirs,
successors, assigns, and legal representatives.
-20-
<PAGE>
17. Modification and Waiver.
-----------------------
(a) Amendment of Agreement. This Agreement may not be modified or
----------------------
amended except by an instrument in writing, signed by the parties hereto,
and which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to
------
have been waived, nor shall there be any estoppel against the enforcement
of any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
18. Severability. If for any reason any provision of this Agreement is
------------
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
19. Headings. The headings of paragraphs herein are included solely for
--------
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
-21-
<PAGE>
20. Governing Law. This Agreement has been executed and delivered in the
-------------
State of Georgia, and its validity, interpretation, performance, and enforcement
shall be governed by the laws of said State.
21. Rights of Third Parties. Nothing herein expressed or implied is
-----------------------
intended to or shall be construed to confer upon or give to any person, firm, or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement.
22. Notices. All notices, requests, demands, and other communications
-------
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the United States by registered or certified mail,
or personally delivered, to the party entitled thereto at the address stated
below or to such changed address as the addressee may have given by a similar
notice:
To Employers: Chairman, Compensation Committee
Board of Directors
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
-and-
Copied to: Steven S. Dunlevie, Esq.
Womble Carlyle Sandridge & Rice, PLLC
Suite 700
1275 Peachtree Street
Atlanta, Georgia 30309
To Employee: Mr. Robert C. Oliver
3650 Sussex Drive
Milledgeville, Georgia 31061
-22-
<PAGE>
IN WITNESS WHEREOF, Employers have caused this Agreement to be
executed and their seal to be affixed hereunto by their duly authorized
officers, and Employee has signed this Agreement, as of the Effective Date.
ATTEST: PREMIER BANCSHARES, INC.
/s/ By: /s/ Darrell D. Pittard
- ---------------------------- -------------------------------
Secretary Darrell D. Pittard
Chairman of the Board
ATTEST: PREMIER BANK
/s/ By: /s/ Darrell D. Pittard
- ---------------------------- -------------------------------
Secretary Darrell D. Pittard
Chairman of the Board
/s/ /s/ Robert C. Oliver (SEAL)
- ---------------------------- ------------------------------------
Witness Robert C. Oliver
-23-
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<PERIOD-TYPE> 3-MOS 6-MOS
<FISCAL-YEAR-END> DEC-31-1998 DEC-31-1998
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