EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into
as of February 1, 2005 by and among Xxxxx X. Xxxxxx, a resident of the State of
Georgia ("Employee"), Northside Bank a proposed Georgia state banking
corporation ("Employer") and Northside Bancshares, Inc., a Georgia corporation
and sole shareholder of Employer (the "Company").
W I T N E S S E T H:
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 hereby employs Employee to serve
as Vice President and Chief Financial Officer of Employer and the Company and to
perform such other duties and responsibilities as customarily performed by
persons acting in such capacity. During the term of this Agreement, Employee
will devote his full business time and effort on an exclusive basis to his
duties hereunder. Employee shall perform his duties at Employer's Main Office
(as hereinafter defined) in Bartow County, Georgia.
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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 date hereof and shall continue for a period of 36 calendar
months thereafter (i) unless Employee dies before the end of such 36 months,
(ii) Employer is not successful in obtaining final opening approvals (the "Final
Approvals") from the Department of Banking and Finance of the State of Georgia
(the "Georgia Department") and the Federal Deposit Insurance Corporation (the
"FDIC") or (iii) the Company is unable to raise at least Ten Million Dollars in
equity (the "Minimum Capital") in order to capitalize Employer. In any such
event, the period of employment shall continue until the earlier of the end of
the month during which Employee dies or it becomes evident that the Final
Approvals will not be obtained or the Minimum Capital will not be raised. The
period of employment shall automatically be extended for additional one year
terms on each anniversary without further action by the parties, commencing on
November 15, 2007 and each November 15 thereafter. No such automatic extension
shall occur if either party shall, within 90 days prior to any said anniversary,
deliver written notice to 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 or such other compensation payment schedule as may be
adopted by Employer for its full time Employees.
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.
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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 the Company from time to time.
6. Vacation. Employee shall be entitled to two weeks vacation
during the first year of employment provided such vacation is not taken by
Employee during the first six months of his employment. After the first year of
employment, Employee shall be entitled to four weeks annual vacation, provided
that no more than two weeks of such vacation shall be used in any 60 day period.
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 the Company and has and will also develop relationships with customers,
employees and others who deal with Employer or the Company which are of value to
Employer and the Company. 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 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 the Company 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 the Company to protect such information from use or disclosure that is not
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necessary for the performance of Employee's duties hereunder, 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 the Company, 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 the Company) and
which is defined as 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
the Company and not generally known by the public. Confidential
Information shall include, but not be limited to, Business Opportunities
of Employer or the Company (as hereinafter defined), the details of this
Agreement, Employer's or the Company's business plans and financial
statements and projections, information as to the capabilities of
Employer's or the Company's employees, their respective salaries and
benefits and any other terms of their employment and the costs of the
services Employer or the Company may offer or provide to the customers
it serves, to the extent such information is material to Employer or the
Company and not generally known by the public.
7.2.3 "Business Opportunities" shall mean any specialized
information or plans of Employer or the Company concerning the provision
of financial services to the public, together with all related
information concerning the specifics of any contemplated
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financial 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 the Company's Board of Directors
approves for release.
7.3 Employee shall not, without the prior approval of Employer's or
the Company's 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 the Company to use, disclose, or gain access to, any Trade
Secrets.
7.4 Employee shall not, without the prior written consent of
Employer or the Company, during his employment with Employer and for a period of
two years thereafter as long
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as the information or data remain competitively sensitive, use or disclose, or
negligently permit any unauthorized person who is not employed by Employer or
the Company 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 of this Agreement.
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 the Company
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, the Company and Employee,
and that the existence of any claim, suit or action by Employee against Employer
and/or the Company, whether predicated upon this Agreement or any other
agreement, shall not constitute a defense to Employer's or the Company's
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
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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 the Company shall be entitled in
addition to and not in limitation of any other rights, remedies, or damages
available to Employer and the Company 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.
12. Termination.
12.1 During the term of this Agreement, Employee's employment,
including without limitation, all compensation, salary, expenses reimbursement,
and employee benefits may be terminated (i) at the election of Employer for
Cause or without Cause; (ii) at Employee's election upon Employer's breach of
any material provision of this Agreement; (iii) upon Employee's death; or (iv)
at the election of either party, upon Employee's disability as defined in the
disability insurance policy dealing with such matters provided in Exhibit A of
this Agreement resulting in an inability to perform the duties described in
Section 1 of this Agreement for a period of 90 consecutive days.
12.2 As used in this Agreement, "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
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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 which are likely to have a material adverse effect on the Company;
(v) refusal to perform a duly authorized directive of Employer's Board of
Directors unless Employee in good faith believes that such act would cause
Employee to breach his fiduciary duties to the Company or Employer, or (vi)
breach by Employee of Section 15.7 of this Agreement.
12.3 No termination by Employer shall be effective unless it is
approved by a majority vote of Employer's Board of Directors, excluding the
vote, if any, of Employee.
12.4 If this Agreement is terminated either pursuant to Cause,
Employee's death or Employee's disability, Employee shall receive no further
compensation or benefits other than six weeks' severance pay based on Employee's
then current Base Salary plus any accrued but unused vacation computed on a
daily basis payable in a lump-sum payment on the date of notice of such
termination.
12.5 If Employee is terminated by Employer without Cause, then
Employee shall receive an amount equal to one year's severance pay equal to
Employee's then current Base Salary plus any accrued but unused vacation
computed on a daily basis, both payable in 12 equal monthly payments commencing
two weeks after notice of such termination is delivered to Employee. Employee
shall receive no further compensation or benefits.
12.6 If Employee is terminated by Employer prior to the receipt of
Final Approvals or if the Company abandons its efforts to raise the Minimum
Capital, Employee shall receive an amount equal to six months' severance pay
based on Employee's then current Base Salary
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payable in six equal monthly payments commencing on the date of notice of such
termination. Employee shall receive no further compensation or benefits.
12.7 If Employee is terminated by Employer because it did not receive
Final Approvals or the Company failed to raise the Minimum Capital, Employee
shall receive an amount equal to three months' severance pay based on Employee's
then current Base Salary payable in three equal monthly payments commencing on
the date of such termination. Employee shall receive no further compensation or
benefits.
12.8 Notwithstanding any provisions hereof to the contrary, if there
occurs a Change in Control (as defined herein) of the Employer or the Company
and Employer either (i) terminates this Agreement, (ii) reduces Employee's Base
Salary, (iii) reduces Employee's performance based compensation by more than
10%, or (iv) changes Employee's primary place of business by more than 35 miles
from the Main Office, then Employee shall be entitled for a period of 180 days
after the date of the closing of the transaction effecting such Change in
Control to deliver to the Employer written notice of termination of this
Agreement. In such event, Employer shall pay Employee a lump sum cash payment in
an amount equal to Employee's then current compensation for the most recent
fiscal year. This payment shall be paid to Employee by the Employer within 30
days after the delivery of such notice of termination. "Change in Control" shall
mean:
(a) in any transaction, whether by merger, consolidation, asset
sale, tender offer, reverse stock split, or otherwise, which
results in the acquisition or beneficial ownership (as such term
is defined under rules and regulations promulgated under the
Securities Exchange Act of 1934, as amended) by any person or
entity or any group of persons or entities acting in concert, of
50% or more of the outstanding shares of common stock of the
Company;
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(b) the sale of all or substantially all of the assets of the
Employer or the Company; or
(c) the liquidation of the Employer or the Company.
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 Company: Northside Bancshares, Inc.
Xxxx Xxxxxx Xxx 000
Xxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Chairman
Employee: Xxxxx X. Xxxxxx
000 Xxxx Xxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx 00000
14. Covenant Not to Compete, Not to Solicit and Not to Hire.
14.1 For purposes of this Section 14, Employer and Employee conduct
the following business in the following geographic areas:
14.1.1 Upon receipt of the Final Approvals, Employer will
engage in the business of transacting business as a bank which accepts
deposits, makes loans, cashes checks and otherwise engages in the
business of banking and such other business as may lawfully be engaged
in by a Georgia financial institution (collectively, the "Business of
Employer").
14.1.2 Employer will conduct business from its office located
at Adairsville Highway (State Highway 140), Adairsville, Georgia (the
"Main Office") and such other business locations as it may open in the
future.
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14.1.3 Employee will establish business relationships and
perform the duties described in Section 1 of this Agreement in the
geographic area covered by a circle having a radius of 30 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 two years
after the termination of this Agreement for any reason other than a termination
of this Agreement by Employer without Cause, 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 30 miles from the Main Office. In the event Employer terminates this
Agreement without Cause, the two year restriction above shall be reduced to six
months.
14.3 During the term of this Agreement and for a period of two years
after the termination of this Agreement for any reason, 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 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.
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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.
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 inure 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.
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15.7 Employee represents and warrants that (i) no restrictions or
covenants exist with his current employer which would restrict or prohibit his
performance hereunder and (ii) he is a duly licensed certified public accountant
and is a Fellow Member in good standing of the Georgia Society of Certified
Public Accountants, Inc. and shall remain so during the term of this Agreement.
Employee will indemnify and hold harmless Employer, including Employer's
attorneys' fees, for any breach of this representation and warranty.
15.8 Upon acceptance by all parties, this Agreement shall be
contingent upon a work history, criminal and academic background check of
Employee by Employer, the FDIC and the Georgia Department. In the event that in
the subjective determination of Employer, the FDIC or the Georgia Department,
Employee has been less than forthright in his disclosure of such information to
Employer or that either the FDIC or the Georgia Department object to Employee's
service as Vice President and CFO, without conditions, then this Agreement shall
be null and void other than Employer shall pay to Employee the sum of three
month's severance pay based on Employee's then current Base Salary, less any
compensation previously paid by Employer to Employee, payable on the date of the
notice hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
"EMPLOYEE"
/s/ Xxxxx X. Xxxxxx (SEAL)
----------------------------------------
Xxxxx X. Xxxxxx
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"EMPLOYER"
NORTHSIDE BANK, a proposed Georgia State
Banking Corporation
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
By: Xxxxxxx X. Xxxxxx
Title: President
"COMPANY"
NORTHSIDE BANCSHARES, INC., a Georgia
corporation
/s/ Xxxxxxx Xxxxxx
----------------------------------------
By: Xxxxxxx Xxxxxx
Title: Chairman
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EXHIBIT A
TO EMPLOYMENT AGREEMENT BY AND AMONG
XXXXX X. XXXXXX,
NORTHSIDE BANK (PROPOSED) AND
NORTHSIDE BANCSHARES, INC.
Employee Compensation
Capitalized terms used herein and not defined shall have the meanings set forth
in the Employment Agreement.
BASE SALARY: $100,000 per year 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.
STOCK OPTIONS: Subject to shareholder approval of that certain incentive stock
option plan of Northside Bancshares, Inc. (the "Company"), ten year incentive
stock options ("ISOs") to acquire 15,000 shares at the initial offering price of
the Company's common stock, are granted to Employee and vested 20% per year on
each anniversary of the opening of Northside Bank ("Bank") provided that (i)
Employee was employed by Employer during the immediately preceding 12 months,
and (ii) the Bank met or exceeded its annual operating budget for net income as
approved by the Bank's Board of Directors. In the event options do not vest for
any given year, the option vesting schedule shall be tolled for one year and the
unvested options shall be carried forward and be eligible for vesting in the
future in the event such conditions above are met. The options shall become
fully vested upon a Change of Control of the Bank or the Company.
GROUP INSURANCE: Such health, hospitalization, dental, and any other insurance
plans as may be adopted by the Bank's Board of Directors for employees of the
Bank and their dependents.
CLUB: Employee will be permitted to use the Bank's corporate membership at
Barnsley Gardens.
TRADE AND CIVIC ASSOCIATIONS: The Bank will pay Employee's membership dues in
such trade and civic associations as determined by the Bank's Board of Directors
in its sole discretion.
