Unassociated Document


    Exhibit
      10.23

     

     

    Separation
      Agreement and Release

     

    This
      Separation Agreement and Release (this “Agreement”) is entered into on this
14th day
      of
      February, 2006, by and among L. Leighton Alston (“Executive”), West Georgia
      National Bank (the “Bank”), and the Bank’s sole shareholder, WGNB Corp. (“WGNB”;
      with the Bank and WGNB being collectively referred to as the
“Company”).

     

    WHEREAS,
      Executive, the Bank and WGNB are parties to an Employment Agreement, dated
      May 27, 2005 (the “Employment Agreement”), pursuant to which Executive has
      served as Chief Executive Officer of the Bank and as President and Chief
      Executive Officer of WGNB; and

     

    WHEREAS,
      Executive, the Bank and WGNB wish to terminate the Employment Agreement and
      all
      other aspects of the relationship between them; and

     

    WHEREAS,
      the
      parties wish to set forth fully in this Agreement the terms of separation,
      such
      that this Agreement will supersede those of the Employment
      Agreement;

     

    NOW,
      THEREFORE,
      for and
      in consideration of the payments, benefits and mutual promises set forth below,
      the sufficiency of which is acknowledged, Executive, the Bank and WGNB hereby
      agree as follows:

     

    1.  Employment
      Termination.

     

    The
      Company and Executive agree that:

     

    (1)  Executive’s
      last day of employment with the Company was February 11, 2006 (the “Severance
      Date”);

     

    (2)  Executive’s
      “Severance Period” will mean the 24-month period beginning on the Severance
      Date; and

     

    (3)  This
      Agreement was first delivered to the Executive on February 7, 2006 (the
“Delivery Date”).

     

    2.  Payments.
      The
      Bank and WGNB shall be severally liable to Executive for the payments described
      in this Section 2; provided, these payments are expressly conditioned upon
      Executive’s compliance with Sections 4, 5, 6 and 7 below. To this effect,
      the Bank shall pay or transfer to Executive the following:

     

    (a)  Final
      Paycheck.
      His
      regular base salary for all periods through his Severance Date at the time
      and
      in the manner it shall pay other executive officers their base salary for such
      periods.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (b)  Final
      Bonus Payment.
      The
      remaining balance of his executive bonus for the 2005 fiscal year; provided,
      this bonus payment shall be paid at the same time and in the same manner it
      is
      paid to other executive officers but in no event later than March 15,
      2006.

     

    (c)  Vacation
      Benefit.
      Consistent with the Company’s general vacation policy, a lump-sum cash payment
      equal to the value of his total earned and unused vacation days as of his
      Severance Date.

     

    (d)  Severance
      Pay.
      $300,000 in 24 equal monthly installments of $12,500 commencing on March 1,
      2006, with each subsequent installment being due and paid on the day of each
      subsequent month within the Severance Period on which other executive employees
      receive their first paycheck during that month; provided, the Bank shall pay
      all
      amounts of said severance pay remaining unpaid as of the last day of the
      Severance Period on said last day.

     

    (e)  COBRA
      Coverage and Premium Payments.
      Under
      the Consolidated Omnibus Reconciliation Act of 1985, as amended (“COBRA”),
      Executive will have the opportunity to elect continuation coverage of his
      medical and dental benefits for himself, his spouse and/or eligible dependents
      to the extent he and/or they are participating in the Company’s plans for those
      benefits as of his Severance Date. If elected in a timely manner, COBRA coverage
      generally will end on the last day of the 18th month following his Severance
      Date (unless an earlier end date or an extension is required under COBRA).
      If
      and to the extent Executive timely elects COBRA continuation coverage, then
      while his COBRA coverage is in effect for himself during the first 18 mouths
      of
      his Severance Period, the Bank shall pay 100 percent of the premium amount
      for
      Executive’s COBRA coverage. Executive, his spouse and/or his dependents shall be
      responsible for paying 100 percent of the premium amount for any COBRA coverage
      for Executive’s spouse and/or dependents; provided, if the Bank and/or WGNB can
      legally and without additional cost (other than the cost of an amendment to
      the
      Bank’s or WGNB’s cafeteria plan) deduct Executive’s payments for spousal and/or
      dependent COBRA benefits from the payments to Executive of his severance pay
      (as
      described in subsection (d) hereof), the Bank and/or WGNB shall do
      so.

     

    (f)  Home
      Computer.
      Ownership of the desktop computer and printer that Executive has maintained
      at
      his residence; provided, Executive agrees that the Bank will first change the
      hard drive in the computer to ensure that no Company information or files
      remain.

     

    (g)  Contact
      List.
      An
      electronic copy of Executive’s contact list saved from the on his computer at
      the Bank.

     

    3.  Stock
      and Options.

     

    (a)  Previously
      Vested Shares.
      WGNB
      shall honor Executive’s exercise of all of his WGNB stock options that vested
      prior to February 10, 2006, and thereby shall allow him to purchase 29,493
      shares of WGNB stock pursuant to the terms of such options; provided, Executive
      agrees not to sell or otherwise transfer or encumber any of such shares until
      or
      after August 11, 2006, and acknowledges that WGNB may place a legend on the
      stock certificate(s) for such shares reflecting such restriction.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (b)  Newly
      Vested Shares.
      Executive shall be permitted to exercise the options to purchase 2,629 shares
      of
      WGNB stock that vest on February 10, 2006; provided, Executive agrees that
      he may not exercise said options earlier than August 11, 2006. Executive
      shall have fifteen (15) days beginning on August 11, 2006 to exercise said
      options after which time said options (if not exercised) will
      lapse.

     

    4.  Mutual
      General Releases.

     

    (a)  Executive’s
      General Release.
      Executive agrees, for himself, his spouse, heirs, executor, administrator,
      assigns, insurers, attorneys and other persons or entities acting or purporting
      to act on his behalf (the “Executive’s Parties”), to irrevocably and
      unconditionally release, acquit and forever discharge the Bank and WGNB, their
      affiliates, subsidiaries, directors, officers, employees, shareholders,
      partners, agents, representatives, predecessors, successors, assigns, insurers,
      attorneys, benefit plans sponsored by the Bank and WGNB and said plans’
fiduciaries, agents and trustees (the “Bank’s Parties”), from any and all
      actions, causes of action, suits, claims, obligations, liabilities, debts,
      demands, contentions, damages, judgments, levies and executions of any kind,
      whether in law or in equity, known or unknown, which the Executive’s Parties
      have, have had, or may in the future claim to have against the Bank’s Parties,
      including but not limited to those claims arising out of, related to, or
      resulting from Executive’s employment with the Bank and WGNB or the termination
      thereof. It is understood that this is a general release. This release
      specifically includes without limitation any claims arising in tort or contract,
      any claim based on wrongful discharge, any claim based on breach of contract,
      any claim arising under federal, state or local law prohibiting race, sex,
      age,
      religion, national origin, handicap, disability or other forms of
      discrimination, any claim arising under federal, state or local law concerning
      employment practices, and any claim relating to compensation or benefits. This
      specifically includes, without limitation, any claim which Executive has or
      has
      had under Title VII of the Civil Rights Act of 1964, as amended, the Age
      Discrimination in Employment Act, as amended (“ADEA”), the Americans with
      Disabilities Act, as amended, and the Employee Retirement income Security Act
      of
      1974, as amended (“ERISA”). Notwithstanding anything herein to the contrary,
      Executive shall have a right to, and is not releasing any claim for, (i) any
      breach of, or any amounts due or performance of the Bank’s Parties under, this
      Agreement, or (ii) any benefits Executive may have accrued or otherwise carved
      in the normal course under any employee benefit plan (within the meaning of
      ERISA) as of his Severance Date.

     

    (b)  Executive’s
      ADEA Release.
      Executive hereby acknowledges that he is knowingly and voluntarily waiving
      and
      releasing any rights he may have under ADEA and that the consideration given
      for
      this Agreement is in addition to anything of value to which he was already
      entitled. He further acknowledges that he has been advised by this writing,
      as
      required by ADEA, that: (A) the waiver and release do not apply to any
      rights or claims that may arise on or after the date he executes this release;
      (B) he has the right to consult with an attorney prior to executing this
      release; (C) he has twenty-one (21) days from the Delivery Date to consider
      this release (although he may choose to voluntarily execute this release
      earlier); (D) he has seven (7) days following his execution of this release
      to revoke the release; and (E) this release shall not be effective until
      the date upon which the revocation period has expired, which shall be the eighth
      (8th)
      day
      after he executes this release.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (c)  Company’s
      Release.
      The
      Bank and WGNB agree, for the Bank’s Parties, to irrevocably and unconditionally
      release, acquit and forever discharge the Executive’s Parties from any and all
      actions, cause of action, suits, claims, obligations, liabilities, debts,
      demands, contentions, damages, judgments, levies and executions of any kind,
      whether in law or in equity, known or unknown, which the Bank’s Parties have,
      have had, or may in the future claim to have against the Executive’s Parties,
      including but not limited to claims arising out of, related to, or resulting
      from Executive’s employment with the Bank and WGNB or the termination thereof.
      It is understood that this is a general release. This release specifically
      includes without limitation any claims arising in tort or contract, any claim
      based on wrongful discharge, any claim based on breach of contract, any claim
      arising under federal, state or local law prohibiting race, sex, age, religion,
      national origin, handicap, disability or other forms of discrimination, any
      claim arising under federal, state or local law concerning employment practices,
      and any claim relating to compensation or benefits. Notwithstanding anything
      herein to the contrary, the Company shall have a right to, and is not releasing
      any claim for, any breach of, or any amounts due or performance of the
      Executive’s Parties under, this Agreement. Further and notwithstanding the
      foregoing, nothing in this Agreement shall be construed as extinguishing any
      debts owed to the Bank under existing loans made to Executive or Executive’s
      Parties.

     

    5.  Inquiries
      and Nondisparagement.
      In
      response to inquiries concerning Executive’s employment with the Company and the
      termination of that employment, the statements of the Company and its
      representatives will always be and remain consistent with the content of the
      press release announcing Executive’s termination of employment, a copy of which
      is attached hereto as Exhibit A. Executive, on the one hand, and WGNB and
      the Bank, on the other hand, covenant and agree not to make or publish any
      disparaging, derogatory, critical, unflattering, or otherwise negative comments
      about the other, whether true or untrue, to any person or entity, or to make
      any
      statements from which a disparaging, derogatory, critical, unflattering, or
      otherwise negative meaning could reasonably be inferred; provided, if Executive
      or any representative of WGNB or the Bank is required by law to testify, provide
      information or give a statement under oath, nothing in this provision is
      intended to prevent or discourage them from doing so truthfully.

     

    6.  Restrictive
      Covenants.
      The
      obligations contained in Section 4 of the Employment Agreement are
      incorporated herein by reference, and the time periods in Sections 4.6, 4.7
      and 4.10 shall be treated as expiring at the end of the Severance
      Period.

     

    7.  Cooperation
      in Defense of Claims.
      Executive agrees to cooperate in the defense of any claim to which WGNB or
      the
      Bank is a party or to which WGNB or the Bank becomes a party which reasonably
      requires his cooperation. Cooperation shall include, but not be limited to,
      meeting with counsel for WGNB or the Bank, making himself available for
      testimony without requiring a subpoena, and providing documents and information
      to WGNB or the Bank as reasonably required. The Company shall make good efforts
      to schedule any meetings, hearings or other events that require Executive’s lime
      in a manner that does not interfere with any employment or other obligations
      he
      may have. To the extent Executive incurs any out-of-pocket expenses (for
      example, travel or parking expenses), the Bank and/or WGNB shall reimburse
      him
      for such expenses under policies similar to those applicable to expense
      reimbursements of Company executive officers.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    8.  Unasserted
      Claims.
      Executive hereby represents he has no knowledge of any nonfrivolous claims
      that
      may be asserted against the Bank or WGNB, that arise solely out of Executive’s
      actions or inactions, and that he believes may result in a successful claim
      against the Bank or WGNB.

     

    9.  Miscellaneous.

     

    (a)  Invalidity
      of Any Provision.
      It is
      the intention of the parties hereto that the provisions of this Agreement shall
      be enforced to the fullest extent permissible under the laws of each state
      and
      jurisdiction in which such enforcement is sought, but that the unenforceability
      (or the modification to conform with such laws) of any provision hereof shall
      not render unenforceable or impair the remainder of this Agreement which shall
      be deemed amended to delete or modify, as necessary, the invalid or
      unenforceable provisions. The parties further agree to alter the balance of
      this
      Agreement in order to render the same valid and enforceable. The terms of the
      restrictive covenant provisions of this Agreement shall be deemed modified
      to
      the extent necessary to be enforceable and, specifically, without limiting
      the
      foregoing, if the term of the applicable restrictive covenant is too long to
      be
      enforceable, it shall be modified to encompass the longest term which is
      enforceable; and, if the scope of the geographic area of the applicable
      restrictive covenant is too great to be enforceable, it shall be modified to
      encompass the greatest area that is enforceable.

     

    (b)  Applicable
      Law.
      This
      Agreement shall be construed and enforced in accordance with the laws of the
      State of Georgia.

     

    (c)  Arbitration.
      In the
      event of a controversy or claim arising out of this Agreement which cannot
      be
      settled by the parties or their legal representatives, other than a claim by
      WGNB or the Bank against Executive under Section 6 hereof for which they seek
      specific performance or injunctive relief, it will be resolved exclusively
      by
      arbitration conducted in Georgia by one arbitrator in accordance with the rules
      of the American Arbitration Association, and judgment upon the award may be
      entered in any court having jurisdiction. All arbitration hearings will be
      commenced within ninety (90) days of the demand for arbitration; provided,
      the
      arbitrator will, upon a showing of cause, be permitted to extend the
      commencement of such hearing. By executing this Agreement, the parties agree
      to
      submit personal and subject matter jurisdiction to the Superior Court of Carroll
      County, Georgia for purposes of enforcing the arbitration provision, enforcing
      an arbitration award or vacating an arbitration award.

     

    (d)  Waiver
      of Breach.
      The
      waiver of a breach of any provision of this Agreement by a party hereto shall
      not operate or be construed as a wavier of any subsequent breach by the other
      party hereto.

     

    (e)  Successors
      and Assigns.
      This
      Agreement shall inure to the benefit of the Bank and WGNB and its Affiliates,
      and their respective successors and assigns. This Agreement shall inure to
      the
      benefit of and be enforceable by the Executive’s estate and/or legal
      representatives.

     

    (f)  Assignment
      of Agreement.
      This
      Agreement may not be assigned by any of the parties without the express written
      consent of the other parties to this Agreement; provided, however, that the
      provisions of this Agreement shall inure to the benefit of and be binding upon
      each successor of WGNB or the Bank, whether by merger, consolidation, transfer
      of all or substantially all assets, or otherwise.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (g)  Notices.
      All
      notices, demands and other communications hereunder shall be in writing and
      shall be delivered in person or deposited in the United States mail, certified
      or registered, with return receipt requested, as follows:

     

    
      
        	 	
                (1)

                 

              	
                If
                  to the Executive:

                 

              	
                Mr.
                  L. Leighton Alston

                244
                  Foggy Bottom Drive

                Carrollton,
                  Georgia 30116

                 

              
	 	
                (2)

                 

              	
                If
                  to the Bank or WGNB:

                 

              	
                WGNB
                  CORP.

                West
                  Georgia National Bank

                P.O.
                  Box 280

                Carrollton,
                  Georgia 30112

                Attention:
                  Chairman

                 

              
	 	
                With
                  a copy to:

                 

              	
                Eric
                  C. Lang

                The
                  Lang Legal Group LLC

                1800
                  Century Place

                Suite
                  570

                Atlanta,
                  GA 30345

              


      

    

     

    (h)  Entire
      Agreement.
      This
      Agreement contains the, entire agreement of the parties with respect to the
      subject matter hereof. All understanding and agreements heretofore made between
      the parties hereto with respect to the subject matter of this Agreement are
      merged into this document which alone fully and completely expresses their
      agreement. This Agreement may not be uliauged orally but only by an agreement
      in
      writing signed by both parties.

     

    (i)  Application
      of Code Section 409A.
      It is
      the intent of the parties to this Agreement that this Agreement shall be
      interpreted, construed and operated in compliance with any applicable provisions
      of Code Section 409A. To the extent that future regulations issued pursuant
      to
      Code Section 409A require any amendments to this Agreement, the parties agree
      that they will consent to, and make, such amendments.

     

    (j)  Captions.
      The
      captions appearing in this Agreement arc inserted only as a matter of
      convenience and in no way define, limit, construe or describe the scope or
      intent of any provisions of this Agreement or in any way affect this
      Agreement.

     

    IN
      WITNESS WHEREOF,
      the
      parties hereto have executed this Agreement under seal as of this 14th day
      of
      February, 2006.

     

    
      	 	 	 
	 	EXECUTIVE:
	 
 	 
 	 
 
	 	By:  	/s/ L.
              Leighton Alston
	 	
              
L.
              Leighton Alston
	 	 


    

     

    
      
         

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    
      	 	 	 
	 	WGNB
              CORP.
	 
 	 
 	 
 
	 	By:  	/s/ R.
              David Perry
	 	
              
Title: 
Chairman,
              Executive Compensation and Management
              Succession Committee
	 	 


    

    
      	 	 	 
	 	WEST
              GEORGIA NATIONAL BANK
	 
 	 
 	 
 
	 	By:  	/s/ W.T.
              Green, Jr.
	 	
              
Title: 
Chairman,
              Board of Directors
	 	 


    

     

    
      
         

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    EXHIBIT
      A

     

    WGNB
      Corp. Announces Resignation of its President and Chief Executive Officer of
      West
      Georgia National Bank

     

    CARROLLTON,
      Ga.-(BUSINESS WIRE)--Feb. 6, 2006--WGNB Corp. (NASDAQ: WGNB ), the holding
      company for West Georgia National Bank, the thirty-ninth highest performing
      publicly traded community bank under $1 billion in assets in the nation
      according to US Banker, and one of only 38 publicly traded financial
      institutions in the nation under $2 billion market cap admitted by Sandler
      O’Neill & Partners, L.P., to its 2005 Bank & Thrift Sm-All Stars, today
      announced the resignation of its President and Chief Executive Officer L.
      Leighton Alston.

     

    Alston
      has been with WGNB for more than 28 years. Prior to joining WGNB , he was an
      Assistant National Bank Examiner for the Comptroller of the Currency,
      Administrator of National Banks, under the United States Treasury Department
      for
      three years. During his 28 years of involvement with the bank, total assets
      have
      grown from $25million to $524miliion and market Capitalization has grown to
      more
      than $126 million. Alston joined WGNB in January 1978. In March of 1991 he
      was
      named President and Chief Executive Officer and elected to the Boards of WGNB
      Corp. and West Georgia National Bank.

     

    “WGNB
      is
      a great institution with an impressive history,” said L. Leighton Alston. “We
      have just finished the fifteenth consecutive year of annual earnings growth.
      This is the right time for me, personally, to stop down from my positions at
      WGNB Corp. and West Georgia National Bank.”

     

    “Leighton
      Alston has served the bank and this community with extraordinary spirit and
      dedication and with a long and enviable list of accomplishments,” said W.T.
“Tommy” Green, Jr., Chairman of the Board of WGNB Corp. “The momentum generated
      under his leadership will carry on into the future.”

     

    Dealty
      Lipham, President and Director of West Georgia National Bank and Executive
      Vice
      President of WGNB Corp., has been appointed by the Board as Interim CEO of
      WGNB
      Corp.

     

    Chairman
      Green added “I am confident in the depth of the WGNB management team developed
      by Leighton, our deeply embedded culture of customer service and our long
      history of community involvement, all of which make us an Industry
      leader.”

     

    About
      WGNB Corp,

     

    WGNB
      Corp. stock is traded on the NASDAQ Small Cap market under the symbol WGNB.
      West
      Georgia National Bank has seven full service locations in Carrollton, Bowdon,
      Villa Rica and Douglasville. The bank currently has assets of $516,000,000.
      For
      more information about West Georgia National Bank, visit the company’s Web site
      at www.wgno.com.
      Interested parties may contact Steven J. Haack, Chief Financial Officer, via
      email at shack@wgnb.com
      or at
      WGNB Corp., P.O. Box 280, Carrollton, Georgia 30112.

     

    Except
      for historical information contained in this press release, the matters
      discussed consist of forward-looking information under the Private Securities
      Litigation Reform Act of 1995. The accuracy of the forward-looking information
      is necessarily subject to and involves risk and uncertainties, which could
      cause
      actual results to differ materially from forward-looking information. These
      risk
      and uncertainties include but are not limited to, general economic conditions,
      competition and other factors, included in filings with the Securities and
      Exchange Commission.