EXHIBIT 10.24
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into as
of January 3, 2000, by and between Xxxxxx X. Xxxx, a resident of the State of
Georgia ("Employee"), and Community Trust Financial Services Corporation
("CTFS"), a Georgia bank holding company.
W I T N E S S E T H:
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WHEREAS, CTFS wishes to obtain assurances from Employee that CTFS will have
the benefit of Employee's services on the terms and subject to the conditions
set forth herein; and
WHEREAS, Employee wishes to obtain assurances from CTFS on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, CTFS and Employee agree as follows:
1. Employment. CTFS hereby employs Employee, and Employee hereby accepts
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such employment and agrees to perform services for CTFS, for the period and upon
the other terms and conditions set forth in this Agreement.
2. Term. The term (the "Term") of Employee's employment hereunder shall
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be for a period of three (3) years, commencing as of the date of this Agreement
subject to earlier termination as hereinafter specified. Unless notified in
writing by the other party thirty (30) days in advance of the next scheduled
termination date, this contract shall renew automatically for successive three
year terms.
3. Position and Duties.
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3.01 Service with CTFS. During the term of this Agreement, Employee
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shall serve as, and her title shall be, Controller. In such position, Employee
agrees to perform such employment duties consistent with such position.
3.02 Performance of Duties. Employee agrees to serve CTFS faithfully
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and to the best of her ability and to devote all of her time, energy and skill
during regular and assigned business hours to such employment. During the Term
hereof, Employee shall not serve as an officer, director or employee of any
other entity not affiliated with CTFS without the prior written consent of the
CEO of CTFS. Notwithstanding the foregoing, (i) Employee may pursue such
personal investment and financial matters as do not conflict with her
obligations and commitments to CTFS, (ii) Employee may participate in
charitable, religious or civic activities such as serving on a school board,
church board or community fund committee and (iii) Employee may participate in
such other activities as the CEO of CTFS may from time to time approve in
writing. Employee hereby
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confirms that she is under no contractual commitments inconsistent with her
obligations set forth in this Agreement.
4. Compensation.
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4.01 Base Salary. As compensation for all services to be rendered by
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Employee under this Agreement, CTFS shall pay to Employee an initial annual base
salary for the period from January 1, 2000 through and including December 31,
2000, of $92,500.00. The base salary described in this Section 4.01, as it may
be increased from time to time, is referred to herein as the "Base Salary." The
Base Salary shall be paid in bi-weekly installments in accordance with CTFS'
normal payroll procedures and policies.
4.02 Incentive Compensation; Stock Option Programs.
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(a) Employee shall be eligible for incentive or bonus pay up to twenty
five (25) percent of base salary based on Employee attaining performance levels
approved by the CEO of CTFS.
For each fiscal year of CTFS that this Agreement remains in effect,
Employee shall receive, subject to attaining performance levels approved by the
CEO of CTFS, in addition to the Base Salary described in Section 4.01, annual
incentive compensation. The maximum amount of annual incentive compensation
shall be twenty-five (25) percent of the Base Salary in effect on the last day
of the fiscal year for which CTFS is paying incentive compensation.
In the event this Agreement is terminated pursuant to Section 10.01(d) or
10.01(e) hereof and such termination occurs during, as opposed to the end of, a
fiscal year of CTFS, Employee shall be entitled to a pro rata portion of the
incentive compensation that Employee would have received had this Agreement
remained in effect through the end of such fiscal year. The pro rata portion to
which Employee is entitled shall be determined by multiplying such incentive
compensation by a fraction, the numerator of which is the number of days during
the fiscal year in question that this Agreement was in effect and the
denominator of which is the total number of days in such fiscal year.
(b) On each January 1 during the term of this Agreement, CTFS shall cause
to be granted to Employee an option to acquire 1,000 shares of CTFS common
stock, provided that there are a sufficient number of shares available to
support such a grant under CTFS' 1993 Stock Option Plan (or a successor plan).
Each such option shall be granted pursuant to, and shall be subject to all of
the terms and conditions of, CTFS' 1993 Stock Option Plan (or a successor plan).
4.03 Section Not Used.
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4.04 Participation in Benefit Plans. Employee shall also be entitled
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to participate, on a comparable basis with other senior executives of CTFS, in
all employee benefit plans or programs of CTFS in effect from time to time
including, but not limited to, medical, dental, life and disability insurance
programs.
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4.05 Expenses. In accordance with CTFS' policies established from
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time to time, CTFS shall pay or reimburse Employee for all reasonable and
necessary out-of-pocket expenses incurred by her in the performance of her
duties under this Agreement, subject to the presentment of appropriate vouchers
and receipts.
5. Confidentiality.
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5.01 General. In Employee's position as an employee of CTFS,
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Employee has had and will have access to confidential information, trade secrets
and other proprietary information of vital importance to CTFS. CTFS requires as
a condition to Employee's employment with CTFS that Employee agrees to certain
restrictions on Employee's use of the proprietary information and valuable
relationships developed during Employee's employment with CTFS. In
consideration of the terms and conditions contained herein, the parties hereby
agree as follows:
5.02 Fiduciary Responsibility. CTFS and Employee mutually agree and
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acknowledge that CTFS may entrust Employee with highly sensitive confidential,
restricted and proprietary information concerning various "Business
Opportunities" (hereinafter defined), customer lists, and personnel matters.
Employee acknowledges that, as an essential element of Employee's employment
with CTFS, Employee shall bear a fiduciary responsibility to CTFS to protect
such information from use or disclosure that is not necessary for the
performance of Employee's duties hereunder.
5.03 Definitions. For the purposes of this Agreement, the following
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definitions shall apply:
(a) "Trade Secret" means information, without regard to form, including,
but not limited to, technical or non-technical 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 (i) are not commonly known by or available to the
public, (ii) 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 (iii)
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy. Trade Secret also shall include any other information
defined as a "trade secret" under the Georgia Trade Secrets Act of 1990, O.C.G.A
section 10-1-760 through section 10-1-767.
(b) "Confidential Information" shall mean any data or information, other
than Trade Secrets, which is material to CTFS and which is not generally known
by the public. Confidential Information shall include, but not be limited to,
data or information related to (i) any information pertaining to the identity of
the customers, depositors or borrowers served by, or Business Opportunities
(hereinafter defined) of CTFS, (ii) the details of this Agreement, CTFS'
respective business, marketing and acquisition plans and (iii) financial
statements and projections, and the costs of the services the CTFS may offer or
provide to the customers they serve, to the extent such information is material
to CTFS and not generally known by the public.
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(c) "Business Opportunities" shall mean any specialized information or
plans of CTFS concerning the business of CTFS, including, but not limited to,
the financing of or investment in CTFS, any target person, business or project,
together with all related information concerning the specifics of any
contemplated financing, investment, acquisition or purchase (including pricing,
terms, and the identity of such person, business or project) regardless of
whether CTFS has entered any agreement, made any commitment, or issued any bid
or offer to such person, business or project.
(d) 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 (other than as
a result of a breach of this Agreement by Employee);
(ii) that 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 the Board of Directors of CTFS approve for unrestricted
release by express written authorization.
5.04 Trade Secrets. Employee shall not, without the prior written
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consent of the CEO of CTFS, during her employment with CTFS 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 CTFS to
use, disclose, or gain access to, any Trade Secrets of CTFS, or of any of their
subsidiaries or affiliates, or of any other person or entity making Trade
Secrets available for CTFS' (or any of their subsidiaries' or affiliates') use.
5.05 Confidential Information. Employee shall not, without the prior
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written consent of the CEO of CTFS, during her employment with CTFS and for a
period of three (3) years after termination of her employment for any reason, as
long as the information or data remain competitively sensitive, use or disclose,
or negligently permit any unauthorized person who is not employed by CTFS to
use, disclose, or gain access to, any Confidential Information to which the
employee obtained access by virtue of her employment with CTFS.
5.06 Observance of Security Measures. During Employee's employment
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with CTFS, Employee is required to observe all security measures adopted to
protect Trade Secrets, Confidential Information and Business Opportunities of
CTFS.
6. Solicitation of Customers, Borrowers or Depositors
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6.01 After Termination of Employment. Upon termination of this
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Agreement for any reason, Employee shall not, directly or indirectly, as
principal, agent, trustee or consultant or through the agency of any
corporation, partnership, association, trust or other entity or person, on
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Employee's own behalf or for others, within two (2) years after such termination
actively solicit, divert, or take away, or attempt to actively solicit, divert,
or take away any customers of CTFS for the purpose of providing services which
constitute the Business of CTFS (in each case as defined above).
6.02 During Employment. During Employee's employment with CTFS,
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Employee shall not, except on behalf of CTFS, solicit, divert, take away or
accept the business of, or attempt to solicit, divert or take away the business
of, any of the customers, depositors or borrowers of CTFS for the purpose of
performing the Business of CTFS for such customers.
7. Non-Interference with Personnel Relations.
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Employee shall not, during her employment with CTFS and for a period of two
(2) years after the termination of her employment with CTFS for any reason,
knowingly solicit, entice or persuade any other employees or agents of CTFS (or
of any of their subsidiaries or affiliates) to leave the services of CTFS (or
such subsidiary or affiliate).
8. Notification of Subsequent Employment.
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During a period of two (2) years after the termination of Employee's
employment with CTFS, Employee shall notify CTFS in writing, within thirty (30)
days after accepting employment with any other corporation, partnership,
association, person, organization or other entity, of the name and address of
Employee's new employer and Employee's functions with her new employer.
9. Covenant Not to Compete.
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9.01 Non-Competition. Employee covenants and agrees that for a
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period of one (1) year after the termination of her employment with CTFS for any
reason, Employee shall not directly or indirectly, as principal, agent, trustee,
consultant or through the agency of any corporation, partnership, association,
trust or other entity or person, on Employee's own behalf or for others, provide
services that are the same as or similar to the services provided by Employee
under this agreement to or for the benefit of any person or entity conducting
the business of CTFS within the following counties of the State of Georgia:
Xxxxxxxx, Xxxxxxx, and Xxxx.
10. Termination.
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10.01 Grounds for Termination. This Agreement shall terminate prior
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to the expiration of the initial Term set forth in Section 2 or any extension
thereof in the event that at any time during such initial Term or any extension
thereof:
(a) CTFS shall give notice to Employee that CTFS is terminating
this Agreement without cause, which notice shall specify the effective date of
Employee's termination;
(b) Employee shall die or the Board of Directors of CTFS shall
determine that Employee has become disabled (as defined in Section 10.02); or
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(c) The CEO of CTFS shall determine that Cause exists. "Cause"
means (i) having been convicted under the laws of any governmental jurisdiction
of (A) a felony or (B) a criminal offense which is not a felony but which has a
material adverse effect on CTFS (or any of its subsidiaries or affiliates) or on
the ability of Employee to carry out her duties hereunder (provided, however,
that in no event shall minor traffic violations constitute "Cause"), (ii) having
committed any action constituting theft or fraud against CTFS (or any of its
subsidiaries or affiliates), (iii) the breach of any of the Employee's covenants
or obligations hereunder, (iv) the knowing failure of the Employee to follow
specific directives of the CEO of CTFS consistent with Employee's duties or (v)
the termination by Employee of her employment hereunder prior to the expiration
of the term of this Agreement, unless such termination is pursuant to Section
10.01(d) or 10.01(e) hereof.
(d) Employee shall determine that CTFS has breached this Agreement
in any material respect (including, but not limited to, CTFS' failure to make
any payment required under this Agreement), which breach is not cured by CTFS
within thirty (30) days after written notice of such breach is delivered to CTFS
by the Employee.
(e) Employee, within ninety (90) days following the occurrence of a
"Change in Control" (as defined in Section 10.03), notifies CTFS, in writing,
that she is electing to terminate this Agreement pursuant to this Section
10.01(e).
Notwithstanding any termination of this Agreement, in consideration of her
employment hereunder to the date of such termination, to the extent specifically
provided for herein, the Employee shall remain bound by the provisions of this
Agreement which specifically relate to periods subsequent to the termination of
Employee's employment hereunder.
10.02 "Disability" Defined. The Board of Directors of CTFS may, in
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its discretion reasonably exercised, determine that Employee has become
disabled, for the purpose of Section 10.01(b) of this Agreement, in the event
that Employee shall fail, in one or more material respects, because of illness
or other physical or mental incapacity, to render services of the character
contemplated by this Agreement for an aggregate of more than ninety (90)
calendar days during any period of twelve (12) consecutive months.
10.03 "Change in Control" Defined. For purposes of this Agreement, a
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"Change in Control" shall be deemed to have occurred if more than fifty percent
(50%) of CTFS' outstanding common stock or equivalent in voting power of any
class or classes of outstanding securities of CTFS entitled to vote in elections
of its Directors, shall be acquired by any person or group of persons acting in
concert. Additionally, a Change in Control shall be deemed to have occurred if
(i) more than fifty percent (50%) of CTFS' outstanding common stock or
equivalent in voting power of any class or classes of outstanding securities of
CTFS entitled to vote in elections of its Directors, shall be acquired by any
person or group of persons acting in concert or (ii) substantially all of the
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assets of CTFS shall be sold to another.
10.04 Surrender of Records and Property. Upon the request of CTFS
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and, in any event, upon termination of his employment with CTFS , Employee shall
deliver promptly to CTFS
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all records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof, which are the
property of CTFS (or any of their subsidiaries of affiliates) and which relate
in any way to the business, products, practices or techniques of CTFS (or any of
their subsidiaries or affiliates), and all other property, Trade Secrets and
Confidential Information of CTFS (or any of their subsidiaries or affiliates),
including, but not limited to, all documents which in whole or in part contain
any Trade Secrets or Confidential Information of CTFS (or any of their
subsidiaries or affiliates), which in any of these cases are in his possession
or under his control.
11. Compensation Upon Termination.
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(a) In the event this Agreement is terminated pursuant to Section
10.01(a), 10.01(d) or 10.01(e) hereof, Employee will receive a lump sum payment
equal to the "Severance Amount" (hereinafter defined), in addition to (i)
payment to Employee of bi-weekly installments of her then current Base Salary
through the effective date of termination and (ii) reimbursement of expenses
incurred by Employee in accordance with Section 4.05 hereof. Additionally, in
the event this Agreement is terminated pursuant to Section 10.01(a), 10.01(d)
or 10.01(e) hereof, Employee shall be entitled to receive any bonus, or pro rata
portion thereof, to which Employee may be entitled pursuant to Section 4.02
hereof, provided that any such bonus shall be paid in accordance with Section
4.02. For purposes of this Section 11(a) "Severance Amount" shall mean an
amount equal to the annual Base Salary in effect on the date of termination.
(b) In the event this Agreement is terminated pursuant to any provision
hereof other than Sections 10.01(a), 10.01(d) or 10.01(e), Employee shall not be
entitled to any compensation other than (i) bi-weekly installments of her then
current Base Salary accrued through the effective date of termination and (ii)
reimbursement of expenses incurred by Employee in accordance with Section 4.05
hereof, and all rights of Employee to further compensation shall thereupon cease
and be terminated.
12. Assignment and Inurement. This Agreement shall inure to the benefit
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of and be binding upon the parties hereto and her respective heirs, successors,
administrators, and permitted assigns. This is a personal service contract and,
except to the extent specifically contemplated hereby, may not be assigned by
Employee without the prior written consent of CTFS.
13. Injunctive Relief. Employee agrees that it would be difficult to
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compensate CTFS fully for damages for any violation of the provisions of this
Agreement, including without limitation the provisions of Sections 5, 6, 7, 8, 9
and 10.04. Accordingly, Employee specifically agrees that CTFS shall be
entitled to temporary and permanent injunctive relief to enforce the provisions
of this Agreement. This provision with respect to injunctive relief shall not,
however, diminish the right of CTFS to claim and recover damages in addition to
injunctive relief.
Notwithstanding anything in Section 15 hereof to the contrary, any party to
this Agreement may petition the Superior Court of Paulding County, Georgia for
temporary injunctive relief. All disputes, controversies or claims arising out
of or related to this Agreement, other than a request for
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temporary injunctive relief, shall be resolved in accordance with the provisions
of Section 15 hereof. The parties hereby agree that jurisdiction and venue for
any action seeking temporary injunctive relief pursuant to this Section 13 shall
lie in the Superior Court of Paulding County, Georgia. The parties hereby agree,
further, that any temporary restraining order entered pursuant to this Section
13 shall remain in effect until the dispute giving rise thereto is resolved
pursuant to the provisions of Section 15 and the parties agree to enter into any
and all consent orders required to maintain such temporary restraining order in
effect until such time.
14. Miscellaneous.
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14.01 Governing Law. This Agreement is made under and shall be
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governed by and construed in accordance with the laws of Georgia.
14.02 Prior Agreements. This Agreement contains the entire agreement
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of the parties relating to the subject matter hereof and supersedes all prior
agreements and understandings with respect to such subject matter, and the
parties hereto have made no agreements, representations or warranties relating
to the subject matter of this Agreement which are not set forth herein.
Notwithstanding the foregoing, the parties expressly agree that they are
parties to an Executive Supplemental Retirement Plan Executive Agreement dated
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the 3rd day of January, 2000, and a Life Insurance Endorsement Split Dollar Plan
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Agreement dated the 3rd day of January, 2000. To the extent that any provisions
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of this Employment Agreement shall conflict with the provisions of the
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aforestated agreements, the provisions of the aforestated agreements shall
supersede and replace the provisions of the Employment Agreement.
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14.03 Withholding Taxes. CTFS may withhold from any benefits payable
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under this Agreement all federal, state, city and other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
14.04 Amendments. No amendment, modification or waiver of this
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Agreement or any provision hereof shall be deemed effective unless made in
writing signed by the party against whom enforcement of the amendment,
modification or waiver is sought. Any written waiver shall not be deemed a
continuing waiver unless specifically stated and shall operate only as to the
specific term or condition waived.
14.05 Notices. Any notice, request, demand or other document to be
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given hereunder shall be in writing, and shall be delivered personally or sent
by registered, certified or express mail or facsimile followed by mail as
follows:
If to CTFS:
Community Trust Financial Services
0000 Xxxxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
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Attention: CEO
If to Employee:
Xxxxxx X. Xxxx
P. O. Xxx 000
Xxxxxx, XX 00000
or to such other address as either party hereto may hereafter duly give to the
other.
14.06 Severability. To the extent any provision of this Agreement
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shall be invalid or unenforceable, it shall be considered deleted herefrom and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect. In furtherance and not in limitation
of the foregoing, should the duration or geographical extent of, or business
activities covered by any provision of this Agreement be in excess of that which
is valid or enforceable under applicable law, then such provision shall be
construed to cover only that duration, extent or activities which may validly
and enforceably be covered. Employee acknowledges the uncertainty of the law in
this respect and expressly stipulates that this Agreement be given the
construction which renders its provisions valid and enforceable to the maximum
extent (not exceeding its express terms) possible under applicable law.
15. Arbitration. Any and all disputes, controversies or claims arising
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out of or related to this Agreement (other than a request for a temporary
restraining order pursuant to Section 13 hereof), shall be resolved by binding
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association ("AAA"). Judgement upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. In the
event of any inconsistency between the provisions of this Section 15 and AAA's
Commercial Arbitration Rules, the provisions of this Section 15 shall govern.
Any party may initiate arbitration by serving written notice of its intention to
arbitrate on the other parties. The venue of any such arbitration shall be
Atlanta, Georgia. The arbitration panel shall consist of three arbitrators
selected as follows. Within thirty (30) days following the date on which the
arbitration provision of this Section 15 is invoked by a party, Employee, on the
one hand, and CTFS, on the other, shall each select an arbitrator from a list of
arbitrators provided by AAA. The lists from which Employee and CTFS select her
respective arbitrators shall be identical. If either Employee or CTFS fails to
select its arbitrator within the time required, the other shall be entitled to
select its arbitrator for it. Within fifteen (15) days following the selection
of the last to be selected of the two (2) arbitrators, the two (2) arbitrators
so selected shall select a third arbitrator. A preliminary arbitration hearing
shall be held within thirty (30) days following the selection of the third
arbitrator for the purpose of scheduling discovery and the evidentiary
hearing(s). The first evidentiary hearing shall be held within thirty (30) days
following the preliminary hearing. The arbitration panel shall deliver its
award in writing, including findings of facts, to the parties within thirty (30)
days following the final arbitration hearing. Evidence and testimony shall be
admitted in accordance with the Federal Rules of Evidence. The arbitration
panel
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shall have authority to grant temporary or permanent injunctive relief or other
equitable remedies. Each party shall bear its own costs and expenses of the
arbitration proceeding.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first set forth above.
Xxxxxx X. Xxxx
Witness: /s/ Xxxxxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxx
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COMMUNITY TRUST FINANCIAL SERVICES
Witness: /s/ Xxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxx
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Title: CEO
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