1
EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into
effective as of December 1, 1999 by and among X. Xxxxx XxXxxxxx, a resident of
the State of Georgia ("Employee"), SouthernBank, N.A., a proposed national
banking association ("Employer") and SouthernBank Holdings, Inc., a Georgia
corporation and sole shareholder of Employer ("Holdings").
WITNESSETH:
WHEREAS, Employer and Employee each deem it necessary and desirable,
for their mutual protection, to execute a written document setting forth the
terms and conditions of their employment relationship;
NOW, THEREFORE, in consideration of the employment of Employee by
Employer, of the premises and the mutual promises and covenants contained
herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Employment and Duties. Employer and Holdings hereby employ Employee
to serve as President and Chief Executive Officer of Employer and as President
of Holdings and to perform such other duties and responsibilities as
customarily performed by persons acting in such capacities. During the term of
this Agreement, Employee will devote his full time and effort to his duties
hereunder.
2. Term. Subject to the provisions of Section 12 of this Agreement,
the period of Employee's employment under this Agreement shall be deemed to
have commenced as of the effective date hereof and shall continue for a period
of 12 calendar months thereafter (i) unless Employee dies before the end of
such 12 months or (ii) Employer is not successful in obtaining final opening
approvals (the "Final Approvals") from the Office of the Comptroller of the
Currency (the "OCC") and the Federal Deposit Insurance Corporation (the
"FDIC"). In either case, the period of employment shall continue until the end
of the month of Employee's death or
2
the inability to obtain the OCC's and FDIC's Final Approvals. The said 12 month
period of employment shall automatically be extended for additional one year
terms without further action by the parties, commencing on the first year
anniversary of this Agreement and each one year anniversary thereafter. No such
automatic extension shall occur if either party shall, within 90 days prior to
any said anniversary, have served written notice upon the other of its
intention that this Agreement shall not be so extended.
3. Compensation. For all services to be rendered by Employee during
the term of this Agreement, Employer shall pay Employee in accordance with the
terms set forth in Exhibit A, net of applicable withholdings, payable in
semi-monthly installments.
4. Expenses. So long as Employee is employed hereunder, Employee is
entitled to receive reimbursement for, or seek payment directly by Employer of,
all reasonable expenses which are consistent with the normal policy of Employer
in the performance of Employee's duties hereunder, provided that Employee
accounts for such expenses in writing.
5. Employee Benefits. So long as Employee is employed hereunder,
Employee shall be entitled to participate in the various employee benefit
programs adopted by Employer and Holdings from time to time.
6. Vacation. Employee shall be entitled to the greater of either three
weeks annual vacation or the number of weeks of annual vacation provided to
executive officers in any employee policy handbook adopted by Employer during
the term of this Agreement.
7. Confidentiality. In Employee's position as an employee of Employer,
Employee has had and will have access to confidential information, trade
secrets and other proprietary information of vital importance to Employer and
Holdings and has and will also develop relationships with customers, employees
and others who deal with Employer or Holdings which are of value to Employer
and Holdings. Employer requires, as a condition to Employee's employment with
Employer, that Employee agree to certain restrictions on Employee's use of the
proprietary information and valuable relationships developed during Employee's
employment
2
3
with Employer. In consideration of the terms and conditions contained herein,
the parties hereby agree as follows:
7.1 Employer and Employee mutually agree and acknowledge that
Employer and Holdings may entrust Employee with highly sensitive, confidential,
restricted and proprietary information concerning various Business
Opportunities (as hereinafter defined), customer lists, and personnel matters.
Employee acknowledges that he shall bear a fiduciary responsibility to Employer
and Holdings to protect such information from use or disclosure as an essential
incident of Employee's employment with Employer.
7.2 For the purposes of this Section 7, the following
definitions shall apply:
7.2.1 "Trade Secret" shall mean the identity and
addresses of customers of Employer or Holdings, the whole or any portion or
phase of any scientific or technical information, design, process, procedure,
formula or improvement that is valuable and secret (in the sense that it is not
generally known to competitors of Employer or Holdings) and which meets the
definition of a "trade secret" under Georgia law pursuant to the Georgia Trade
Secrets Act.
7.2.2 "Confidential Information" shall mean any data
or information, other than Trade Secrets, which is material to Employer or
Holdings and not generally known by the public. Confidential Information shall
include, but not be limited to, Business Opportunities of Employer or Holdings
(as hereinafter defined), the details of this Agreement, Employer's or
Holdings' business plans and financial statements and projections, information
as to the capabilities of Employer's or Holdings' employees, their respective
salaries and benefits and any other terms of their employment and the costs of
the services Employer or Holdings may offer or provide to the customers it
serves, to the extent such information is material to Employer or Holdings and
not generally known by the public.
7.2.3 "Business Opportunities" shall mean any
specialized information or plans of Employer or Holdings concerning the
provision of financial services to the public, together with all related
information concerning the specifics of any contemplated financial
3
4
services regardless of whether Employer has contacted or communicated with such
target person or business.
7.2.4 Notwithstanding the definitions of Trade
Secrets, Confidential Information, and Business Opportunities set forth above,
Trade Secrets, Confidential Information, and Business Opportunities shall not
include any information:
(i) that is or becomes generally known to
the public;
(ii) that is already known by Employee or
is developed by Employee after termination of employment through entirely
independent efforts;
(iii) that Employee obtains from an
independent source having a bona fide right to use and disclose such
information;
(iv) that is required to be disclosed by
law, except to the extent eligible for special treatment under an appropriate
protective order; or
(v) that Employer's or Holdings' Board of
Directors approves for release.
7.3 Employee shall not, without the prior approval of
Employer's or Holdings' Board of Directors, during his employment with Employer
and for so long thereafter as the information or data remain Trade Secrets, use
or disclose, or negligently permit any unauthorized person who is not an
employee of Employer or Holdings to use, disclose, or gain access to, any Trade
Secrets.
7.4 Employee shall not, without the prior written consent of
Employer or Holdings, during his employment with Employer and for a period of
12 months thereafter as long as the information or data remain competitively
sensitive, use or disclose, or negligently permit any unauthorized person who
is not employed by Employer or Holdings to use, disclose, or gain access to,
any Confidential Information to which the Employee obtained access by virtue of
his employment with Employer, except as provided in Section 7.2.4 of this
Agreement.
4
5
8. Observance of Security Measures. During Employee's employment with
Employer, Employee is required to observe all security measures adopted to
protect Trade Secrets, Confidential Information and Business Opportunities.
9. Return of Materials. Upon the request of Employer or Holdings and,
in any event, upon the termination of his employment with Employer, Employee
shall deliver to Employer all memoranda, notes, records, manuals or other
documents, including all copies of such materials containing Trade Secrets or
Confidential Information, whether made or compiled by Employee or furnished to
him from any source by virtue of his employment with Employer.
10. Severability. Employee acknowledges and agrees that the covenants
contained in Sections 7 through 9 and Section 14 of this Agreement shall be
construed as covenants independent of one another and distinct from the
remaining terms and conditions of this Agreement, and severable from every
other contract and course of business by and among Employer, Holdings and
Employee, and that the existence of any claim, suit or action by Employee
against Employer and/or Holdings, whether predicated upon this Agreement or any
other agreement, shall not constitute a defense to Employer's or Holdings'
enforcement of any covenant contained in Sections 7 through 9 and Section 14 of
this Agreement.
11. Specific Performance. Employee acknowledges and agrees that the
covenants contained in Sections 7 through 9 and Section 14 of this Agreement
shall survive any termination of employment, as applicable, with or without
Cause (as hereinafter defined), at the instigation or upon the initiative of
any party. Employee further acknowledges and agrees that the ascertainment of
damages in the event of Employee's breach of any covenant contained in Sections
7 through 9 and Section 14 of this Agreement would be difficult, if at all
possible. Employee therefore acknowledges and agrees that Employer and Holdings
shall be entitled in addition to and not in limitation of any other rights,
remedies, or damages available to Employer and Holdings in arbitration, at law
or in equity, upon submitting whatever affidavit the law may require, and
posting any necessary bond, to have a court of competent jurisdiction enjoin
Employee from committing any such breach.
5
6
12. Termination.
12.1 Employee's employment hereunder may be terminated under
the following circumstances:
12.1.1 At the election of Employer, for Cause.
12.1.2 At the election of Employee, for Good Reason.
12.1.3 Upon Employee's death, or, at the election of
either party, upon Employee's disability as determined in accordance with the
standards and procedures under Employee's then-current long-term disability
insurance coverage provided by Employer, or, if such disability insurance
coverage provided by Employer is not then in place, upon Employee's disability
resulting in inability to perform the duties described in Section 1 of this
Agreement for a period of 180 consecutive days.
12.2 "Cause" shall mean (i) conduct by Employee that amounts
to fraud, material dishonesty, gross negligence or willful misconduct in the
performance of his duties hereunder; (ii) the conviction (from which no appeal
may be, or is, timely taken) of Employee of a felony; (iii) initiation of
suspension or removal proceedings against Employee by federal or state
regulatory authorities acting under lawful authority pursuant to provisions of
federal or state law or regulation which may be in effect from time to time;
(iv) knowing violation of federal or state banking laws or regulations ; or (v)
refusal to perform a duly authorized directive of Employer's Board of
Directors.
12.3 "Good Reason" shall mean a material diminution in
Employee's office, title, reporting requirements, lending authority, duties or
responsibilities hereunder or upon material breach of this Agreement by
Employer.
12.4 If this Agreement is terminated either (i) by Employer
at any time for any reason other than for Cause, (ii) by Employee for Good
Reason or (iii) upon Employer's material breach of this Agreement, then
Employer shall pay to Employee as Employee's sole remedy hereunder the
compensation and benefits provided in this Agreement for a term equal to 12
months, as if no termination occurred.
6
7
12.5 If the Agreement is terminated for Cause, Employee shall
receive no further compensation or benefits, other than Employee's Base Salary
and other compensation as accrued through the date of termination for Cause.
13. Notices. All notice provided for herein shall be in writing and
shall be deemed to be given when delivered in person or deposited in the United
States Mail, registered or certified, return receipt requested, with proper
postage prepaid and addressed as follows:
Employer and Holdings: SouthernBank Holdings, Inc.
Xxxx Xxxxxx Xxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: D. Xxxxxx Xxxxxxx, Chairman
with a copy to: Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esquire
Employee: X. Xxxxx XxXxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
with a copy to: Powell, Goldstein, Xxxxxx & Xxxxxx
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esquire
14. Covenant Not to Compete and Not to Solicit.
14.1 For purposes of this Section 14, Employer and Employee
conduct the following business in the following geographic areas:
14.1.1 Employer is engaged in the business of
transacting business as a bank which accepts deposits, makes loans, cashes
checks and otherwise engages in the business of banking (collectively, the
"Business of Employer").
14.1.2 Employer actively conducts business in a
certain geographic area of Georgia from its office located at Georgia Highway
20 and the Xxxx xx Xxxxxxx, Xxxxxx, Xxxxxxx 00000 (the "Main Office").
7
8
14.1.3 Employee will establish business
relationships and performs the duties described in Section 1 of this Agreement
in the geographic area covered by a circle having a radius of 50 miles from the
Main Office, and will work primarily in such area while in the employ of
Employer.
14.2 Employee covenants and agrees that for a period of one
year after the termination of this Agreement for any reason other than
non-renewal of this Agreement by Employer or Holdings on any anniversary date
or pursuant to Section 12.1.2 of this Agreement, Employee shall not, directly
or indirectly, as principal, agent, trustee, consultant or through the agency
of any financial institution, corporation, partnership, association, trust or
other entity or person, on Employee's own behalf or for others, provide the
duties described in Section 1 of this Agreement for any entity or person
conducting the Business of Employer within the geographic area covered by a
circle having a radius of 50 miles from the Main Office.
14.3 During the term of this Agreement and for a period of
one year after the termination of this Agreement for any reason other than
non-renewal of this Agreement by Employer or Holdings on any anniversary date
or pursuant to Section 12.1.2 of this Agreement, Employee will not enter into,
and will not participate in, any plan or arrangement to cause any employee of
Employer to terminate his or her employment with Employer, and, Employee agrees
that for a period of at least two years after the termination of employment by
any employee of Employer, Employee will not hire such employee in connection
with any business initiated by Employee or any other person, firm or
corporation. Employee further agrees that information as to the capabilities of
Employer's employees, their salaries and benefits, and any other terms of their
employment is Confidential Information and proprietary to Employer.
14.4 Employee and Employer shall periodically amend this
Agreement by updating the address referenced in Section 14.1.2 of this
Agreement so that it at all times lists the then current geographic area served
by Employer for which Employee performs the duties described in Section 1 of
this Agreement.
8
9
14.5 Notwithstanding any provision herein to the contrary,
the covenant not to compete and not to solicit set forth in Sections 14.2 and
14.3 shall be null and void in the event either (i) this Agreement is not
renewed by Employer or Holdings on any anniversary date or (ii) terminated by
Employee pursuant to Section 12.1.2 of this Agreement.
15. Miscellaneous.
15.1 This Agreement, together with Exhibit A, constitutes and
expresses the whole agreement of the parties in reference to the employment of
Employee by Employer, and there are no representations, inducements, promises,
agreements, arrangements, or undertakings oral or written, between the parties
other than those set forth herein.
15.2 This Agreement shall be governed by the laws of the
State of Georgia.
15.3 Should any clause or any other provision of this
Agreement be determined to be void or unenforceable for any reason, such
determination shall not affect the validity or enforceability of any clause or
provision of this Agreement, all of which shall remain in full force and
effect.
15.4 Time is of the essence in this Agreement.
15.5 This Agreement shall be binding upon and enure to the
benefit of the parties hereto and their successors and assigns. This Agreement
shall not be assignable by Employee without the prior written consent of
Employer.
15.6 This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which taken together shall
constitute but a single instrument.
9
10
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
"Employee"
/s/ Xxxxxx X. Xxxxxx /s/ X. Xxxxx XxXxxxxx (SEAL)
--------------------------------- --------------------------------------
Witness X. Xxxxx XxXxxxxx
ATTEST: "Employer"
SouthernBank, N.A.
By: /s/ Xxxxx X. XxXxxx /s/ D. Xxxxxx Xxxxxxx
------------------------------ --------------------------------------
Xxxxx X. XxXxxx, Secretary D. Xxxxxx Xxxxxxx, Chairman
(BANK SEAL)
ATTEST: "Holdings"
SOUTHERNBANK HOLDINGS, INC.
By: /s/ Xxxxx X. XxXxxx /s/ D. Xxxxxx Xxxxxxx
------------------------------ --------------------------------------
Xxxxx X. XxXxxx, Secretary D. Xxxxxx Xxxxxxx, Chairman
(CORPORATE SEAL)
10
11
Exhibit A
to Employment Agreement By and Among
X. Xxxxx XxXxxxxx, Southern Bank, N.A. (proposed) and
SouthernBank Holdings, Inc.
Employee Compensation
Capitalized terms used herein and not defined shall have the meanings set forth
in the Employment Agreement.
BASE SALARY: $90,000 per year until the date of the opening of SouthernBank,
N.A. (the "Bank") then increasing to $120,000 per year thereafter subject to
annual increases in an amount equal to such amount as the Board of Directors in
its discretion shall determine to be appropriate under the circumstances after
review of Employee's performance.
OPTION PLANS: Assuming shareholder approval of that certain incentive stock
option plan of SouthernBank Holdings, Inc. ("Holdings"), ten year incentive
stock options to acquire 25,000 shares of Holdings Common Stock granted at the
initial offering price of Holdings' common stock, vesting over 5 years, at 20%
per year for each year of continued employment thereafter. The option shall be
granted as an option qualified under Section 422 of the Internal Revenue Code
of 1986, as amended, subject to the approval of the shareholders of Holdings.
BONUSES:
(1) Annual. Payable each January, based on a performance matrix
established against budgets and approved by the Bank's Board of Directors; and
(2) Bank Opening. The Bank will pay Employee a one time bonus of
$15,000 on June 30, 2000 if the Bank has opened for business on or before May
31, 2000.
AUTO ALLOWANCE: The Bank will provide an automobile allowance of $7,000 per
year payable in 12 equal monthly payments of $584 per month on the first day of
each month.
CLUB MEMBERSHIP: Employee's initiation fee and current monthly dues for a
private country club and a private dining club as determined to be appropriate
by the Bank's Board of Directors.
INSURANCE: Employee's and his dependents' hospitalization, and dental, any
other insurance plans as adopted by the Bank's Board of Directors for employees
of the Bank.
