EXHIBIT 10.10
EMPLOYMENT AGREEMENT
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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 XXXXXXX X.
XXXXXXXXX ("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
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
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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
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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,
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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
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this Agreement.
(e) "Incentive Compensation" shall mean that compensation payable or
paid to Employee pursuant to paragraph 4(b) of this Agreement.
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(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
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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.
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3. Term and Duties.
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(a) Term of Employment. This Agreement and the period of Employee's
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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
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calendar months thereafter, unless earlier terminated pursuant to this
Agreement or unless Employee dies before the end of such thirty-six (36)
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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
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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,
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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
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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
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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
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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
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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.
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(a) Salary. Subject to the provisions of paragraph 7 hereof,
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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
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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
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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
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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.
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(c) Provision of Automobile. Employers shall provide Employee with an
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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
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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.
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(e) "Golden Parachute" Provision. Notwithstanding anything contained
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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,
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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.
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6. Benefits Payable Upon Disability.
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(a) Disability Benefits. In the event of the Disability of Employee,
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Employers shall continue to pay Employee 100% of Employee's then current
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Base Salary pursuant to paragraph 4(a) during the first six (6) months of a
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continuous period of disability. It is provided, however, that in the event
Employee is disabled for a continuous period exceeding six (6) months,
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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
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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
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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
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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,
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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
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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
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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
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Employee during the immediately preceding twelve (12) months, to be paid in
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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
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during the term of this Agreement and within one (1) year immediately
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following a Change of Control or within six (6) months immediately prior to
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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
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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
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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
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Employee pursuant to this paragraph 7 shall be allocated between and be
reflected upon the books and records of Employers.
8. Regulatory Suspension.
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(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.
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(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
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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,
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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.
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10. Source of Payments. All payments provided in paragraphs 4, 6, and 7
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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
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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
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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
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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.
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14. Effect of Prior Agreements. This Agreement contains the entire
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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.
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(a) Nonassignability. Neither this Agreement nor any right or
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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
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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
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inure to the benefit of, Employers and Employee and their respective heirs,
successors, assigns, and legal representatives.
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16. Modification and Waiver.
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(a) Amendment of Agreement. This Agreement may not be modified or
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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
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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
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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
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convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
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19. Governing Law. This Agreement has been executed and delivered in the
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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
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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
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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.
0000 Xxxxxxx Xxxxx
000 X. Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Copied to: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC
Xxxxx 000
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
To Employee: Xx. Xxxxxxx X. Xxxxxxxxx
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
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.
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By:
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Xxxxxxx Xxxxx, Secretary Xxxxxxx X. Xxxxxxx
Chairman of the Board
ATTEST: PREMIER BANK
/s/ By: /s/ Xxxxxxx X. Xxxxxxx
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Secretary Xxxxxxx X. Xxxxxxx
ATTEST: CENTRAL AND SOUTHERN BANK OF GEORGIA
/s/ By: /s/ Xxxxxx X. Xxxxxx
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Secretary Xxxxxx X. Xxxxxx
(BANK SEAL) President
/s/ /s/ Xxxxxxx X. Xxxxxxxxx (SEAL)
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Witness Xxxxxxx X. Xxxxxxxxx
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