PGFM Draft
October 14, 2002
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the ___ day of __________, 2002, by and among
NEIGHBORS BANCSHARES, INC., a bank holding company incorporated under the laws
of the State of Georgia (the "Company"); NEIGHBORS BANK, a proposed state bank
being organized under the laws of the State of Georgia (the "Bank")
(collectively, the Company and the Bank are referred to hereinafter as the
"Employer"); and XXXXXXX XXXXX, SR., a resident of the State of Georgia (the
"Executive").
RECITALS:
The Employer desires to employ the Executive as Senior Vice President and
Chief Financial Officer of the Company and the Bank and the Executive desires to
accept such employment.
In consideration of the above premises and the mutual agreements
hereinafter set forth, the parties hereby agree as follows:
1. DEFINITIONS. Whenever used in this Agreement, the following terms and
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their variant forms shall have the meaning set forth below:
1.1 "AGREEMENT" shall mean this Agreement and any exhibits incorporated
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herein together with any amendments hereto made in the manner described in this
Agreement.
1.2 "AREA" shall mean the geographic area within the boundaries of
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Interstate 75 to the west, Interstate 85 to the east, Interstate 285 to the
south and a line running horizontally from Interstate 75 to Interstate 85, which
line intersects with the northernmost city limit of Jasper, Georgia, to the
north. It is the express intent of the parties that the Area as defined herein
is the area where the Executive performs services on behalf of the Employer
under this Agreement as of the Effective Date.
1.3 "BUSINESS OF THE EMPLOYER" shall mean the business conducted by the
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Employer, which is the business of commercial banking.
1.4 "CAUSE" shall mean:
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1.4.1 With respect to termination by the Employer:
(a) A material breach of the terms of this Agreement by the
Executive, including, without limitation, failure by the Executive to
perform his duties and responsibilities in the manner and to the extent
required under this Agreement, which remains uncured after the expiration
of fifteen (15) days following the delivery of written notice of such
breach to the Executive by the Employer. Such notice shall (i) specifically
identify the duties that the President and Chief Executive Officer of the
Company or the Bank believes the Executive has failed to perform and (ii)
state the facts upon which such determination is made;
(b) Conduct by the Executive that amounts to fraud,
dishonesty, disloyalty or willful misconduct in the performance of his
duties and responsibilities hereunder;
(c) Arrest for, charged in relation to (by criminal
information, indictment or otherwise), or conviction of the Executive
during the Term of a crime involving breach of trust or moral turpitude or
any felony;
(d) Conduct by the Executive that amounts to gross and
willful insubordination or inattention to his duties and responsibilities
hereunder; or
(e) Conduct by the Executive that results in removal from his
position as an officer or executive of the Employer pursuant to a written
order by any regulatory agency with authority or jurisdiction over the
Employer.
1.4.2 With respect to termination by the Executive, a material
diminution in the powers, responsibilities or duties of the Executive hereunder
or a material breach of the terms of this Agreement by the Employer, which
remains uncured after the expiration of thirty (30) days following the delivery
of written notice of such breach to the Employer by the Executive.
1.5 "CHANGE OF CONTROL" means any one of the following events:
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(a) the acquisition by any person or persons acting in
concert of the then outstanding voting securities of either the Company or
the Bank if, after the transaction, the acquiring person or persons owns
controls or holds the power to vote fifty percent (50%) or more of any
class of voting securities of the Company or the Bank;
(b) within any twelve-month period (beginning on or after the
Effective Date), the persons who were directors of either the Company or
the Bank immediately before the beginning of such twelve-month period (the
"Incumbent Directors") shall cease to constitute at least a majority of
such Board of Directors; provided that any director who was not a director
as of the beginning of such twelve-month period shall be deemed to be an
Incumbent Director if that director were elected to such Board of Directors
by, or on the recommendation of or with the approval of, at least
two-thirds of the directors who then qualified as Incumbent Directors; and
provided further that no director whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of directors shall be deemed to be an Incumbent Director;
(c) a reorganization, merger or consolidation, with respect
to which persons who were the stockholders of either the Company or the
Bank immediately prior to such reorganization, merger or consolidation do
not, immediately thereafter, own more than fifty percent (50%) of the
combined voting power entitled to vote in the
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election of directors of the reorganized, merged or consolidated company's
then outstanding voting securities; or
(d) the sale, transfer or assignment of all or substantially
all of the assets of the Company or the Bank to any third party.
1.6 "CONFIDENTIAL INFORMATION" means data and information relating to
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the business of the Employer (which does not rise to the status of a Trade
Secret) which is or has been disclosed to the Executive or of which the
Executive became aware as a consequence of or through the Executive's
relationship to the Employer and which has value to the Employer and is not
generally known to its competitors. Confidential Information shall not include
any data or information that has been voluntarily disclosed to the public by the
Employer (except where such public disclosure has been made by the Executive
without authorization) or that has been independently developed and disclosed by
others, or that otherwise enters the public domain through lawful means.
1.7 "DISABILITY" shall mean the inability of the Executive to perform
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each of his material duties under this Agreement for a period of six (6)
consecutive months as certified by a physician chosen by the Employer and
reasonably acceptable to the Executive.
1.8 "EFFECTIVE DATE" shall mean the date the Bank opens for business.
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1.9 "EMPLOYER INFORMATION" means Confidential Information and Trade
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Secrets.
1.10 "INITIAL TERM" shall mean that period of time commencing on the
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Effective Date and running until the earlier of the close of business on the
last business day immediately preceding the third anniversary of the Effective
Date or any earlier termination of employment of the Executive under this
Agreement as provided for in Section 3.
1.11 "TERM" shall mean the Initial Term and all subsequent renewal
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periods.
1.12 "TRADE SECRETS" means Employer information including, but not
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limited to, technical or nontechnical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial data,
financial plans, product plans or lists of actual or potential customers or
suppliers which:
(a) derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure
or use; and
(b) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
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2. DUTIES.
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2.1 POSITION. The Executive is employed as Senior Vice President and
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Chief Financial Officer of the Company and the Bank and, subject to the
direction of the President and Chief Executive Officer of the Company and the
Bank, shall perform and discharge well and faithfully the duties and
responsibilities of the Executive as set forth on Exhibit "A" attached hereto.
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The Executive shall also perform such additional duties that may be assigned to
him from time to time by the President and Chief Executive Officer of the
Company and the Bank only after the Chief Executive Officer has solicited the
reasonable opinion of the Executive with respect to those additional duties.
The Executive shall perform the duties required under the Agreement at the
principal offices of the Bank.
2.2 FULL-TIME STATUS. In addition to the duties and responsibilities
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specifically assigned to the Executive pursuant to Section 2.1 hereof, the
Executive shall:
(a) devote substantially all of his time, energy and skill
during regular business hours to the performance of the duties of his
employment (reasonable vacations and reasonable absences due to illness
excepted) and faithfully and industriously perform such duties;
(b) diligently follow and implement all reasonable and lawful
financial policies and decisions communicated to him by the President and
Chief Executive Officer of the Company and the Bank; and
(c) timely prepare and forward to the President and Chief
Executive Officer of the Company and the Bank all reports and accountings
as may be requested of the Executive.
2.3 PERMITTED ACTIVITIES. The Executive shall devote his entire
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business time, attention and energies to the Business of the Employer and shall
not during the Term be engaged (whether or not during normal business hours) in
any other business or professional activity, whether or not such activity is
pursued for gain, profit or other pecuniary advantage; but this shall not be
construed as preventing the Executive from:
(a) investing his personal assets in businesses which
(subject to clause (b) below) are not in competition with the Business of
the Employer and which will not require any services on the part of the
Executive in their operation or affairs and in which his participation is
solely that of an investor;
(b) purchasing securities in any corporation, the securities
of which are regularly traded provided that such purchase shall not result
in him collectively owning beneficially at any time five percent (5%) or
more of the equity securities of any business in competition with the
Business of the Employer; and
(c) participating in civic and professional affairs and
organizations and conferences, preparing or publishing papers or books or
teaching so long as the
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President and Chief Executive Officer of the Company and the Bank approves
in writing of such activities prior to the Executive's engaging in them.
3. TERM AND TERMINATION.
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3.1 TERM. This Agreement shall remain in effect for the Term.
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Commencing with the first day of the Initial Term, the Term shall renew each day
such that the Term remains a three-year term from day-to-day thereafter unless
any party gives written notice to the others of its or his intent that the
automatic renewals shall cease. In the event such notice of non-renewal is
properly given, this Agreement and the Term shall expire on the third (3rd)
anniversary of the thirtieth (30th) day following the date such written notice
is received.
3.2 TERMINATION. During the Term, the employment of the Executive
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under this Agreement may be terminated only as follows:
3.2.1 By the Employer:
(a) For Cause, upon written notice to the Executive pursuant to
Section 1.4.1 hereof, in which event the Employer shall have no further
obligation to the Executive except for the payment of any amounts due and
owing under Section 4 on the effective date of termination;
(b) Without Cause at any time, provided that the Employer shall
give the Executive thirty (30) days' prior written notice of its intent to
terminate, in which event the Employer shall be required to continue to
meet its obligations to the Executive under Section 4.1 for six (6) months
following the termination; or
(c) Upon the Disability of the Executive at any time, provided
that the Employer shall give the Executive thirty (30) days' prior written
notice of its intent to terminate, in which event, for six (6) months
following the date of termination or until the Executive begins receiving
payments under the Company's long-term disability policy, whichever occurs
first, the Employer shall be required to continue to meet its obligations
under Sections 4.1.
3.2.2 By the Executive:
(a) For Cause, upon written notice to the Employer pursuant to
Section 1.4.2 hereof, in which event the Employer shall be required to
continue to meet its obligations under Section 4.1 for six (6) months; or
(b) Without Cause, provided that the Executive shall give the
Employer sixty (60) days' prior written notice of his intent to terminate,
in which event the Employer shall have no further obligation to the
Executive except for payment of any amounts due and owing under Section 4
on the effective date of the termination.
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3.2.3 At any time upon mutual, written agreement of the parties.
3.2.4 Notwithstanding anything in this Agreement to the contrary,
the Term shall end automatically upon the Executive's death.
3.3 CHANGE OF CONTROL. If the Executive terminates his employment with
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the Employer under this Agreement for Cause or the Employer terminates
Executive's employment without Cause within six (6) months following a Change in
Control, the Executive, or in the event of his subsequent death, his designated
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 (1) times
the Executive's then current Base Salary, to be paid in full on the last day of
the month following the date of termination. In no event shall the payment(s)
described in this Section 3.3 exceed the amount permitted by Section 280G of the
Internal Revenue Code, as amended (the "Code"). 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 Code) of both the severance payment
and all other payments to the Executive in the nature of compensation which are
contingent on a change in ownership or effective control of the Company or the
Bank or in the ownership of a substantial portion of the assets of the Company
or the Bank (the "Aggregate Severance") would result in a "parachute payment,"
as defined under Section 280G of the Code, then the Aggregate Severance shall
not be greater than an amount equal to 2.99 multiplied by Executive's "base
amount" for the "base period, " as those terms are defined under Section 280G of
the Code. In the event the Aggregate Severance is required to be reduced
pursuant to this Section 3.3, the Executive 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.
Notwithstanding any provision in this Agreement, if the Executive may exercise
his right to terminate employment under this Section 3.3 or under Section
3.2.2(a), the Executive may choose which provision shall be applicable.
3.4 EFFECT OF TERMINATION. Upon termination of the Executive's
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employment hereunder for any reason, the Employer shall have no further
obligations to the Executive or the Executive's estate with respect to this
Agreement, except for the payment of any amounts accrued or otherwise due and
owing under Section 4 hereof and unpaid as of the effective date of the
termination of employment and payments set forth in Sections 3.2.1(b) and (c),
Section 3.2.2(a), or Section 3.3 as applicable.
4. COMPENSATION. The Executive shall receive the following salary and
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benefits during the Term, except as otherwise provided below:
4.1 BASE SALARY. The Executive shall be compensated at an annual base
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rate of $100,000 (the "Base Salary"), which shall increase to $125,000 when the
Bank opens for business. The obligation for payment of Base Salary shall be
apportioned between the Company and the Bank as they may agree from time to time
in their sole discretion. The Executive's Base Salary shall be reviewed by the
Board of Directors of the Company and the Bank at least annually, and the
Executive shall be entitled to receive annually an increase in such amount, if
any, as may be determined by the Board of Directors of the Company or the Bank
based on their respective
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evaluation of the Executive's performance. Base Salary shall be payable in
accordance with the Employer's normal payroll practices.
4.2 INCENTIVE COMPENSATION. The Executive shall be eligible to receive
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annual bonus compensation, if any, as may be determined by the Board of
Directors of the Company or the Bank pursuant to any incentive compensation
program as may be adopted from time to time by the Employer.
4.3 BUSINESS EXPENSES; MEMBERSHIPS. The Employer specifically agrees
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to reimburse the Executive for:
(a) reasonable and necessary business expenses (including travel)
incurred by him in the performance of his duties as approved by the
President and Chief Executive Officer of the Company and the Bank; and
(b) reasonable dues and business related expenditures associated
with membership in trade and professional associations, as are mutually
agreed upon by the Executive and the Employer, which are commensurate with
the Executive's position;
provided, however, that the Executive shall, as a condition of any
reimbursement, submit verification of the nature and amount of such expenses in
accordance with reimbursement policies from time to time adopted by the Employer
and in sufficient detail to comply with rules and regulations promulgated by the
Internal Revenue Service.
4.4 VACATION. On a non-cumulative basis, the Executive shall be
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entitled to three (3) weeks of vacation in each successive twelve-month period
during the Term, during which his compensation shall be paid in full.
4.5 BENEFITS. In addition to the benefits specifically described in
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this Agreement, the Executive shall be entitled to such benefits as may be
available from time to time to executives of the Employer similarly situated to
the Executive. All such benefits shall be awarded and administered in
accordance with the Employer's standard policies and practices. Such benefits
may include, by way of example only, profit-sharing plans, retirement or
investment funds, dental, health, life and disability insurance benefits, sick
leave and such other benefits as the Employer deems appropriate.
4.6 WITHHOLDING. The Employer may deduct from each payment of
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compensation hereunder all amounts required to be deducted and withheld in
accordance with applicable federal and state income, FICA and other withholding
requirements.
5. EMPLOYER INFORMATION.
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5.1 OWNERSHIP OF EMPLOYER INFORMATION. All Employer Information
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received or developed by the Executive while employed by the Employer will
remain the sole and exclusive property of the Employer.
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5.2 OBLIGATIONS OF THE EXECUTIVE. The Executive agrees:
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(a) to hold Employer Information in strictest confidence;
(b) not to use, duplicate, reproduce, distribute, disclose or
otherwise disseminate Employer Information or any physical embodiments of
Employer Information; and
(c) in any event, not to take any action causing or fail to take
any action necessary in order to prevent any Employer Information from
losing its character or ceasing to qualify as Confidential Information or a
Trade Secret.
In the event that the Executive is required by law to disclose any Employer
Information, the Executive will not make such disclosure unless (and then only
to the extent that) the Executive has been advised by independent legal counsel
that such disclosure is required by law and then only after prior written notice
is given to the Employer when the Executive becomes aware that such disclosure
has been requested and is required by law. This Section 5 shall survive for a
period of two (2) years following termination of this Agreement for any reason
with respect to Confidential Information, and shall survive termination of this
Agreement for any reason for so long as is permitted by applicable law, with
respect to Trade Secrets.
5.3 DELIVERY UPON REQUEST OR TERMINATION. Upon request by the
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Employer, and in any event upon termination of his employment with the Employer,
the Executive will promptly deliver to the Employer all property belonging to
the Employer, including, without limitation, all Employer Information then in
his possession or control.
6. NON-COMPETITION. The Executive agrees that during his employment by the
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Employer hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(a),
- by the Executive without Cause pursuant to Section 3.2.2(b), or
- by the Executive in connection with a Change of Control pursuant to
Section 3.3,
for a period of twenty-four (24) months thereafter, or in the event of the
Executive's termination by the Employer without Cause pursuant to Section
3.2.1(b), for six (6) months thereafter, he will not (except on behalf of or
with the prior written consent of the Employer), within the Area, either
directly or indirectly, on his own behalf or in the service or on behalf of
others, as an executive employee or in any other capacity which involves duties
and responsibilities similar to those undertaken for the Employer (including as
an organizer or proposed executive officer of a new financial institution),
engage in any business which is the same as or essentially the same as the
Business of the Employer.
7. NON-SOLICITATION OF CUSTOMERS. The Executive agrees that during his
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employment by the Employer hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(a),
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- by the Executive without Cause pursuant to Section 3.2.2(b), or
- by the Executive in connection with a Change of Control pursuant to
Section 3.3,
for a period of twenty-four (24) months thereafter, or in the event of the
Executive's termination by the Employer without Cause pursuant to Section
3.2.1(b), for six (6) months thereafter, he will not (except on behalf of or
with the prior written consent of the Employer), within the Area, on his own
behalf or in the service or on behalf of others, solicit, divert or appropriate
or attempt to solicit, divert or appropriate, any business from any of the
Employer's customers, including prospective customers actively sought by the
Employer, with whom the Executive has or had material contact during the last
two (2) years of his employment, for purposes of providing products or services
that are competitive with those provided by the Employer.
8. NON-SOLICITATION OF EMPLOYEES. The Executive agrees that during his
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employment by the Employer hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(a),
- by the Executive without Cause pursuant to Section 3.2.2(b), or
- by the Executive in connection with a Change of Control pursuant to
Section 3.3,
for a period of twenty-four (24) months thereafter, or in the event of the
Executive's termination by the Employer without Cause pursuant to Section
3.2.1(b), for six (6) months thereafter, he will not, within the Area, on his
own behalf or in the service or on behalf of others, solicit, recruit or hire
away or attempt to solicit, recruit or hire away, any employee of the Employer,
whether or not:
- such employee is a full-time employee or a temporary employee of the
Employer,
- such employment is pursuant to written agreement, or
- such employment is for a determined period or is at will.
9. REMEDIES. The Executive agrees that the covenants contained in Sections
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5 through 8 of this Agreement are of the essence of this Agreement; that each of
the covenants is reasonable and necessary to protect the business, interests and
properties of the Employer, and that irreparable loss and damage will be
suffered by the Employer should he breach any of the covenants. Therefore, the
Executive agrees and consents that, in addition to all the remedies provided by
law or in equity, the Employer shall be entitled to a temporary restraining
order and temporary and permanent injunctions to prevent a breach or
contemplated breach of any of the covenants. The Employer and the Executive
agree that all remedies available to the Employer or the Executive, as
applicable, shall be cumulative.
10. SEVERABILITY. The parties agree that each of the provisions included in
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this Agreement is separate, distinct and severable from the other provisions of
this Agreement and that the invalidity or unenforceability of any Agreement
provision shall not affect the validity or enforceability of any other provision
of this Agreement. Further, if any provision of this Agreement is ruled invalid
or unenforceable by a court of competent jurisdiction because of a conflict
between the provision and any applicable law or public policy, the provision
shall be redrawn to make the provision consistent with, and valid and
enforceable under, the law or public policy.
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11. NO SET-OFF BY THE EXECUTIVE. The existence of any claim, demand, action
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or cause of action by the Executive against the Employer whether predicated upon
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Employer of any of its rights hereunder.
12. NOTICE. All notices and other communications required or permitted
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under this Agreement shall be in writing and shall be delivered by hand or, if
mailed, shall be sent via the United States Postal Service, certified mail,
return receipt requested or by overnight courier. All notices hereunder may be
delivered by hand or overnight courier, in which event the notice shall be
deemed effective when delivered. All notices and other communications under this
Agreement shall be given to the parties hereto at the following addresses:
(i) If to the Company, to it at:
Neighbors Bancshares, Inc.
00000 Xxxxxx Xxxx
Xxxxxxxx X
Xxxxxxx, XX 00000
(ii) If to the Bank, to it at:
Neighbors Bank
0000 Xxx Xxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
(iii) If to the Executive, to him at:
_____________________
_____________________
Any party hereto may change his or its address by advising the others, in
writing, of such change of address.
13. ASSIGNMENT. Neither party hereto may assign or delegate this Agreement
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or any of its rights and obligations hereunder without the written consent of
the other party to this Agreement.
14. WAIVER. A waiver by one party to this Agreement of any breach of this
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Agreement by the other party to this Agreement shall not be effective unless in
writing, and no waiver shall operate or be construed as a waiver of the same or
another breach on a subsequent occasion.
15. ARBITRATION. Any controversy or claim arising out of or relating to
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this contract, or the breach thereof, shall be settled by binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator may be entered
only in a state court of Xxxxxx County or the federal court for the Northern
District of Georgia. The Employer and the Executive agree to share equally the
fees and expenses associated with the arbitration proceedings.
EXECUTIVE MUST INITIAL HERE:_______.
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16. ATTORNEYS' FEES. In the event that the parties have complied with this
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Agreement with respect to arbitration of disputes and litigation ensues between
the parties concerning the enforcement of an arbitration award, the party
prevailing in such litigation shall be entitled to receive from the other party
all reasonable costs and expenses, including without limitation attorneys' fees,
incurred by the prevailing party in connection with such litigation, and the
other party shall pay such costs and expenses to the prevailing party promptly
upon demand by the prevailing party.
17. APPLICABLE LAW. This Agreement shall be construed and enforced under
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and in accordance with the laws of the State of Georgia.
18. INTERPRETATION. Words importing any gender include all genders. Words
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importing the singular form shall include the plural and vice versa. The terms
"herein", "hereunder", "hereby", "hereto", "hereof" and any similar terms refer
to this Agreement. Any captions, titles or headings preceding the text of any
article, section or subsection herein are solely for convenience of reference
and shall not constitute part of this Agreement or affect its meaning,
construction or effect.
19. ENTIRE AGREEMENT. This Agreement embodies the entire and final
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agreement of the parties on the subject matter stated in this Agreement. No
amendment or modification of this Agreement shall be valid or binding upon the
Employer or the Executive unless made in writing and signed by both parties.
All prior understandings and agreements relating to the subject matter of this
Agreement are hereby expressly terminated.
20. RIGHTS OF THIRD PARTIES. Nothing herein expressed is intended to or
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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. SURVIVAL. The obligations of the Executive pursuant to Sections 5, 6,
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7, 8 and 9 shall survive the termination of the employment of the Executive
hereunder for the period designated under each of those respective sections.
22. JOINT AND SEVERAL. The obligations of the Company and the Bank to the
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Executive hereunder shall be joint and several.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Employer and the Executive have executed and
delivered this Agreement as of the date first shown above.
NEIGHBORS BANCSHARES, INC.
By:
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Signature
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Print Name
-----------------------------------
Title
NEIGHBORS BANK
By:
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Signature
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Print Name
-----------------------------------
Title
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XXXXXXX XXXXX, SR.
Date:
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EXHIBIT "A"
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DUTIES OF THE EXECUTIVE
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SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
Function:
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The Senior Vice President and Chief Financial Officer has overall responsibility
for the financial matters of the Employer.
Required Qualifications:
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[PLEASE COMPLETE]
Principal Accountabilities:
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[PLEASE COMPLETE]
A-1
