EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of January 1, 1998 ("Effective
Date"), by and between FIRST COMMUNITY BANK & TRUST ("Employer"), a bank
organized and existing under the laws of the State of Georgia, and J. XXXXXX
XXXXXXXX ("Xxxxxxxx").
RECITALS
Employer and Xxxxxxxx (collectively the "Parties") recite and declare:
X. Xxxxxxxx serves as an employee at will for the Employer in the
position of President & Chief Executive Officer.
B. The Parties desire to commit to the following terms and
conditions for Xxxxxxxx'x future employment.
For the reasons set forth above, and in consideration of mutual promises
and agreements set forth in this Agreement, the Parties agree as follows:
SECTION I
EMPLOYMENT
Employer hereby agrees to continue to employ Xxxxxxxx as President and
Chief Executive Officer and Xxxxxxxx hereby accepts and agrees to such
employment, subject to the terms of this Agreement. During the term of his
employment, Xxxxxxxx shall report directly to the Board of Directors.
SECTION II
RESPONSIBILITIES
During the term of Xxxxxxxx'x employment and subject to the terms of
this Agreement, Xxxxxxxx shall have the responsibilities outlined in the
position description incorporated into this Agreement as Appendix A.
SECTION III
TERM OF AGREEMENT
The term of this Agreement shall commence January 1, 1998, and continue
for three (3) consecutive calendar years. Such term shall be automatically
renewed at the end of each calendar year unless terminated as provided in
Section VI of this Agreement.
SECTION IV
COMPENSATION OF XXXXXXXX
Employer will compensate Xxxxxxxx for his services rendered pursuant to
this Agreement as follows:
(a) BASE SALARY. Employer shall pay Xxxxxxxx an annual base salary,
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payable bi-weekly, as stated on Appendix B attached to this
Agreement. Base salary shall be reviewed and amended annually
for salary adjustments mutually agreed to between Xxxxxxxx and
Employer.
(b) EMPLOYEE BENEFITS. Xxxxxxxx shall fully participate in the
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following employee benefits:
(1) MEDICAL, DENTAL AND GROUP TERM LIFE INSURANCE. Xxxxxxxx
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shall participate fully in medical, dental and group term
life insurance provided by Employer to other employees.
Employer shall also continue paying its portion of the
premium (currently $48.48 per month) for a term life
insurance policy agreed to under the terms of Xxxxxxxx'x
Employment Agreement dated January 1, 1988.
(2) QUALIFIED RETIREMENT PLAN. Xxxxxxxx shall participate fully
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in all tax qualified retirement plans provided by Employer
to other employees.
(3) DEFERRED COMPENSATION. Xxxxxxxx shall be entitled to
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continued participation in the Executive Private Pension
plan (EPP), to the extent of the terms of the EPP Agreement
previously entered into by the Parties on April 1, 1997.
(4) INCENTIVE COMPENSATION. Xxxxxxxx shall be entitled to
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additional annual cash compensation determined pursuant to a
prearranged formula applied to the attainment of set
performance goals. The details of the formula shall be
approved annually by the Board of Directors of Employer.
(5) STOCK OPTIONS. Xxxxxxxx shall be entitled to continued
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participation in his grant of options dated June 18, 1991,
the 1994 Incentive Stock Option Plan with options granted
November 15, 1994 and November 21, 1995, and in the 1997
Stock Option Plan executed April 1, 1997.
(6) VACATION, HOLIDAYS AND SICK PAY. Xxxxxxxx shall be entitled
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to paid vacation, holidays, and to sick pay as defined
in Employer's written personnel policy available to all
employees as updated from time to time.
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(7) COUNTRY CLUB AND CIVIC CLUB DUES. Employer shall pay
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Xxxxxxxx'x dues to the Cartersville Country Club for the
purpose of entertaining customers and prospective customers
as well as dues for various civic organizations for purposes
of identifying new customers and expanding the visibility of
the bank in the community.
(8) AUTOMOBILE. Employer shall provide a Chevrolet Suburban
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automobile, or similar model, for Xxxxxxxx'x use.
(9) DIRECTOR FEES. While serving on the Board of Directors,
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Xxxxxxxx shall receive the same compensation as other
directors, except that Xxxxxxxx will not participate in the
Director Incentive Plan.
SECTION V
CONFIDENTIALITY AND NONCOMPETITION
Except as required by law, Xxxxxxxx agrees that he will not at any time
communicate or divulge to, or use for his benefit, or for the benefit of any
other person, firm, association, or corporation, any information concerning
Employer's business activities, including, without limitation, financial
projections and models, costs and sales data, marketing plans and programs,
customer lists, loans and deposit information, and methods of operations, or
other confidential matters possessed, owned or used by Employer that have been
or may be communicated to, acquired by, or learned of by him in the course of or
as a result of his employment with Employer. All records, files, memoranda,
reports, loan, lists, customer and depositor information, drawings, plans,
sketches, documents, equipment and other similar information relating to the
business of Employer, which Xxxxxxxx shall develop, create, use, prepare, or
come into contact with shall remain the sole property of Employer, and shall be
returned to them not later than the termination of Xxxxxxxx'x employment.
Nothing herein shall restrict Xxxxxxxx'x use of his personal knowledge,
training, contacts, and experience as a banker in his business activities or in
any subsequent employment. Nevertheless, Xxxxxxxx agrees that he shall not
directly or indirectly solicit, as a member of management or a loan or lending
officer, for a competitor of Employer (defined as any commercial bank, savings
institution or credit union doing business in Bartow County Georgia) any
individual or entity who was a customer of Employer during Xxxxxxxx'x term of
employment hereunder or for three (3) years after his employment ends. The
parties agree that the term of this noncompetition provision is reasonable and
is in pari materia with the term of this contract. The provisions of this
paragraph shall survive the expiration or termination of this Agreement. All
references to Employer in this paragraph shall be deemed to include all parents,
subsidiaries, and other affiliates thereof.
In the event of an actual threatened breach by Xxxxxxxx of the
provisions of this Article V, Employer shall be entitled to an injunction
restraining the actions
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Xxxxxxxx and requiring compliance with such provisions. Injunctive relief shall
be in addition to, and not in lieu of, any other remedies which may be available
to Employer for such breach or threatened breach.
SECTION VI
TERMINATION
(a) TERMINATION WITH CAUSE. Employer may terminate this Agreement
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for cause pursuant to notice in writing to Xxxxxxxx, specifying
such cause with reasonable particularity. Xxxxxxxx shall have
ten (10) days from receipt thereof in which to cure the act or
omission complained of, unless the act or omission of its very
nature cannot be cured. If no cure has been or can be effected
within the time allowed, this Agreement shall thereupon
terminate.
For purposes hereof, "cause" shall be limited to:
(i) Any material act of self-dealing between Employer and
Xxxxxxxx which is not disclosed in full to, and approved
by, the Board of Directors of Employer;
(ii) Deliberate falsification by Xxxxxxxx of any records or
reports;
(iii) Fraud on the part of Xxxxxxxx against the Employer or
any subsidiary or affiliate;
(iv) Alcohol or drug dependency on the part of Xxxxxxxx;
(v) Theft, embezzlement, or misappropriation by Xxxxxxxx of
any funds of Employer, or conviction of any felony;
(vi) Execution of any document transferring, or creating any
material liens or encumbrance on, any material property
of Employer, not in the ordinary course of business,
without authorization of the Board of Directors of
Employer; or
In the event of Xxxxxxxx'x termination for cause, all compensation and
benefits due under this Agreement shall terminate 30 days from the effective
date of termination.
(b) TERMINATION BY XXXXXXXX. Xxxxxxxx may terminate this Agreement
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upon ninety (90) days written notice to the Board of Directors
of Employer. In such event, all compensation and benefits due
under this Agreement shall terminate on the effective date of
termination.
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(c) TERMINATION BY DEATH. This Agreement shall automatically
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terminate upon the death of Xxxxxxxx. In such event, all
compensation and benefits due under this Agreement shall
terminate on Xxxxxxxx'x death.
(d) TERMINATION BY RETIREMENT. This Agreement shall automatically
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terminate upon Xxxxxxxx'x 65th birthday. In such event, all
compensation and benefits due under this Agreement shall
terminate on Xxxxxxxx'x retirement.
(e) TERMINATION FOR DISABILITY. Employer may terminate this
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Agreement in the event that Xxxxxxxx shall, during the term of
this Agreement, become permanently disabled as defined in this
section. Such option shall be exercised by Employer giving
notice in writing to Xxxxxxxx of Employer's intention to
terminate this Agreement on the last day of the month in which
the notice is so mailed, with the same force and effect as if
such last day of the month were the date originally set forth in
this Agreement as the termination date of this Agreement. In
such event, all compensation and benefits due under this
Agreement shall terminate on the date of termination.
For the purposes of this Agreement, Xxxxxxxx shall be deemed to
have become permanently disabled, if, during any year of the
term of this Agreement, because of ill health, physical or
mental incapacity he is prevented from performing the minimum
requirements of his position.
(f) EFFECT OF TERMINATION ON VESTED BENEFITS. Notwithstanding
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anything contained in this Agreement, Xxxxxxxx'x termination of
employment shall not effect the Employer's liability for the
payment of vested benefits pursuant to individual contracts or
state or federal law requiring the payment of such benefits.
(g) RIGHTS OF BOARD OF DIRECTORS. Notwithstanding anything contained
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in this Agreement, the Employer's Board of Directors retains its
statutory right and obligation to remove Xxxxxxxx from office at
any time, whenever in its judgement the best interests of the
Employer will be served thereby, without prejudice to any
contractual right herein.
SECTION VII
AGREEMENTS OUTSIDE OF CONTRACT
This Agreement contains the complete agreement concerning the
employment arrangement between the Parties and shall, as of the effective date
hereof, supersede all other agreements between the Parties. The Parties
stipulate that neither of them has made any representation with respect to the
subject matter of this Agreement or any representations including the execution
and delivery of this Agreement except such
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representations as are specifically set forth in this Agreement and each of the
parties acknowledges that he or it has relied on its own judgment in entering
into this Agreement. The Parties further acknowledge that any payments or
representations that may have been made by either of them to the other prior to
the date of executing this Agreement are of no effect and that neither of them
has relied thereon in connection with his or its dealings with the other.
SECTION VII
MODIFICATION OF AGREEMENT
Any modification of this Agreement or additional obligation assumed by
either Employer and Xxxxxxxx in connection with this Agreement shall be binding
only if evidenced in writing signed by each them or an authorized representative
of each them.
SECTION IX
EFFECT OF A PARTIAL INVALIDITY
The invalidity of any portion of this Agreement will not and shall not
be deemed to affect the validity of any other provision. In the event that any
provision of this Agreement is held to be invalid, the Parties agree that the
remaining provisions shall be deemed to be in full force and effect as if they
had been executed by both parties subsequent to elimination of the invalid
provision.
SECTION X
CHOICE OF LAW
It is the intention of the Parties that this Agreement and the
performance under this Agreement, and all suits and special proceedings under
this Agreement, be construed in accordance with and under and pursuant to the
laws of the State of Georgia and that, in any action, special proceeding or
other proceeding that may be brought arising out of, in connection with, or by
any reason of this Agreement, the laws of the State of Georgia shall be
applicable and shall govern to the exclusion of the law of the forum, without
regard to the jurisdiction in which any action or special proceeding may be
instituted.
SECTION XI
NO WAIVER
The failure of either Employer or Xxxxxxxx to insist upon the
performance of any of the terms and conditions of this Agreement, or the waiver
of any breach of any of the terms and conditions of this Agreement, shall not be
construed as thereafter waiving any such terms and conditions, but the same
shall continue and remain in full force and effect as if no such forbearance or
waiver had occurred.
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SECTION XII
ATTORNEY FEES
In the event that any action is filed in relation to this Agreement, the
unsuccessful party in the action shall pay to the successful party, in addition
to all the sums that either party may be called on to pay, a reasonable sum for
the successful party's attorney's fees.
SECTION XIII
PARAGRAPH HEADINGS
The title to the paragraphs of this Agreement are solely for the
convenience of the parties and shall not be used to explain, modify, simplify,
or aid in the interpretation of the provisions of this Agreement.
IN WITNESS WHEREOF, the Parties now duly execute this Agreement.
FIRST COMMUNITY BANK & TRUST
April 21, 1998 By: /s/ H. Xxxx Xxxxxx
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Date
As Its: Chairman
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April 21, 1998 By: /s/ J. Xxxxxx Xxxxxxxx
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Date J. XXXXXX XXXXXXXX
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APPENDIX B
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Annual base salary effective January 1, 1998 $121,000
EMPLOYER
FIRST COMMUNITY BANK & TRUST
April 21, 1998 BY: /s/ H. Xxxx Xxxxxx
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Date
AS ITS: Chairman
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XXXXXXXX
Xxxxx 21, 1998 /s/ Xxxxxx Xxxxxxxx
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Date J. XXXXXX XXXXXXXX
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