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EXHIBIT 10.1
EMPLOYMENT AGREEMENT AND
COVENANT NOT TO COMPETE
THIS EMPLOYMENT AGREEMENT is entered into on the 11th day of August,
2000, between Sweetwater Financial Group, Inc., a Georgia corporation,
hereinafter as "Bank" and Xxxxx Xxxxxx, a resident of Gwinnett County, Georgia,
hereinafter referred to as "Executive."
WITNESSETH:
WHEREAS, the Bank and Executive are involved in a joint effort to
organize and obtain a Georgia State Bank Charter and to form a Holding Company
and Banking Corporation to conduct the business of commercial and retail banking
(the "Bank's Business"); and
WHEREAS, the parties hereto desire to enter into an agreement for the
Bank's employment of Executive on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the Executive accepting the
position of President and CEO of the Bank and Executive Vice President, and
Director and COO of the Holding Company, and the mutual promises made herein,
the Bank will escrow sufficient capital to fund the Executive's financial
exposure during the period of the application for the Banking Charter for the
Sweetwater Financial Group, Inc. and Executive agree as follows:
1. Employment:
(a) The Bank hereby employs the Executive in the capacity of
President and Chief Executive Officer, of the Bank and Executive Vice President
and Chief Operating Officer of the Holding Company. The Executive hereby accepts
such employment on the terms and conditions herein set forth. Executive will
perform and will have the right to perform such duties and will exercise and
will have the right to exercise such authority as are customarily performed and
exercised by the President and Chief Executive Officer of a bank and the
Executive Vice President and Chief Operating Officer of a Holding Company,
subject only to the general supervision of the Board of Directors of the Bank
and Holding Company, exercised in good faith and in accordance with standards of
reasonable commercial judgment. In such capacity, the Executive shall be
President and Chief Executive Officer of the Bank and Executive Vice President
and Chief Operating Officer of the Holding Company organized and formed in this
effort. The Executive, subject to the approval of the Bank's shareholders, shall
be a Director on the Bank's Board of Directors and the Holding Company Board of
Directors.
(b) During the term of employment, the Executive will devote his
best efforts to his employment and will perform such duties as are consistent
with the position as President and Chief Executive Officer of the Bank and
Executive Vice President and Chief Operating Officer of the Holding Company.
Executive agrees to give the Bank the full benefit of his working time, energy
and ability on a full-time basis, subject to the direction and control of the
Board of
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Directors of the Bank and Holding Company, and to endeavor, in all cases and to
the best of his ability and experience, loyally and conscientiously to perform
all of the duties and obligations of his employment and to promote the Bank's
best interests. During his employment hereunder, the Executive agrees not to
participate actively in any outside business interests or investments unless the
Board of Directors shall have been advised of such proposed activity and shall
have agreed to the participation of the Executive therein or unless it does not
involve a substantial amount of the Executive's time and does not interfere with
the full performance of his duties hereunder.
(c) (i) Employer is an incorporation seeking to be State
chartered with its principal place of business in Powder Springs, Xxxx County,
Georgia. Wherever Bank or Employer is referred to herein, said terms shall be
synonymous with the Board of Directors.
(ii) Executive is an experienced banker.
(iii) Executive is willing to be employed by Bank, and Bank
is willing to employ employee, upon the terms, covenants and conditions
hereinafter set forth.
(iv) Executive agrees that he will at all times
faithfully, industriously, and to the best of his ability, experience and
talents, perform all of the duties that may be required of and from him pursuant
to the express and implicit terms hereof. Such duties shall be rendered at
Powder Springs, State of Georgia, and at such other place or places as Bank
shall in good faith require or as interest, needs, business, or opportunity or
Bank shall require, but in no event shall Executive be transferred outside the
State of Georgia without his consent.
(v) Executive shall devote his time, attention, knowledge
and skills to the business and interest of Bank and Bank shall be entitled to
the benefits, profits or other issues arising from or incident to the works,
services, and advice of Executive, and Executive shall not, during the term
hereof, be interested directly or indirectly, as partner, officer, director,
stockholder, advisor, Executive or in any other capacity in any other business
or any allied trade; provided, however, that nothing herein contained shall be
deemed to prevent or limit the right of Executive to invest any of his surplus
funds in the capital stock or other securities or any corporation whose stock or
securities are publicly owned or are regularly traded on any public exchange,
nor shall anything herein contained be deemed to prevent Executive from
investing or limit Executive's right to invest his surplus funds in real estate,
or to involve himself in any activity not conflicting with his duties as an
employee of the Bank.
2. Term: Executive's employment under this Agreement shall be for
an initial term of five (5) years commencing on the date hereof, unless sooner
terminated in accordance with the provisions of Paragraph 5 below. Upon the
expiration of the initial term, this Agreement shall be automatically renewed
for successive 3-year terms, unless sooner terminated in accordance with
Paragraph 5 below. If this contract is terminated for any reason, Executive
agrees to resign as officer and director of both the Holding Company and the
Bank.
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3. Salary and Benefits: As compensation for Executive's services
to the Bank during the term of this Agreement, the Bank shall pay the
compensation and provide the benefits to Executive described below:
3.1 Annual Salary: The Bank shall pay to Executive, during the
initial start up of employment which will be from date the Bank files its
charter application, or sooner should Executive be so employed, a salary at the
rate of $75,000 per year payable on a monthly basis of $6,250 per month.
immediately upon the Bank opening for business, the Executive's salary shall
increase to $110,000 per year or $9,166.67 per month. Immediately upon the Bank
reaching Cumulative Profitability as defined herein, the Executive shall
receive, subject to satisfactory progress of the Executive's performance, an
additional ten percent (10%) onetime bonus. On each anniversary of the Bank
opening, Executive's salary shall increase annually by three percent (3%). All
payments to be made in accordance with the customary payroll policy of the Bank
in effect at the time such payment is made, or as the Bank and Executive may
otherwise mutually agree. If the Bank should fail to receive a charter for a
bank of if the Bank fails to sell the required stock to receive approval to open
the bank or if the investors mutually agree to terminate efforts to organize the
Holding Company and Bank, Bank shall pay Executive the sum of $8,333.33 per
month for three (3) consecutive months from the date the Bank fails to receive a
charter or the date it is determined that the required stock cannot be sold or
the date the investors mutually agree to terminate efforts to organize Holding
Company and Bank, whichever date is later.
(a) (i) Bonus: Any such bonus awarded hereunder shall not
exceed twenty five percent (25%) of his base salary in effect
at the time.
(ii) Cumulative Profitability shall be defined as the
point in time when the Bank has achieved sufficient profits to offset
all start up and current operating costs.
(iii) Quality of assets shall be an important consideration
in the determination of the amount of bonus. For purposes of
determining the amount of bonus, the following levels shall apply. All
problem assets shall be expressed as a total percentage of all assets.
(i.e., loans past due 90 days or more, non accrual loans, other real
estate, loan related problems, loans past due 30-89 days). No bonus
shall be awardable should the Bank be under any active investigation
excluding routine regulatory exams or the Bank's rating be lowered to a
CAMELS of 3 or below.
Bonus levels shall be awardable as follows:
Bonus levels:
when the ratio is less than 1.25% bonus is 5% of pre-tax earnings
when ratio is between 1.25% and 1.75% bonus is 4% of pre-tax profits
when ratio is between 1.75% and 2.25% bonus is 2% of pre-tax profits
when ratio is between 2.25% and 2.50% bonus is 1% of pre-tax profits
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(b) Deferred Compensation: The Bank anticipates establishing a
retirement plan such as a 401(k) and an executive supplemental retirement plan
to provide Executive the opportunity to defer up to ten percent (10%) of his
salary and retire with retirement benefits of ninety percent (90%) of salary at
retirement, subject to applicable Internal Revenue Code limitations. Bank agrees
that should such plans be established that Executive shall be entitled to
participate subject to the limitations described herein.
3.2 Vacation and Other Benefits: Executive shall be entitled to
(a) paid vacation during each year of employment by the Bank in accordance with
the policies of the Bank in effect from time to time of not less than 3 weeks;
(b)A reasonable car allowance package of no less than $500 per month; (e) life
insurance in the amount of two (2) times annual salary with accidental death
benefits; (d) full family medical coverage with the annual deductible equal to
or less than Two hundred fifty dollars ($250.00); (e) long term disability
insurance with a COLA equal to or greater than seventy five percent (75%) of
annual salary; and (f) participation in all other employee benefits provided by
the Bank from time to time for its executive officers and other employees of the
Bank.
3.3 Stock Options: Upon the occurrence of the Bank, and subject to
the approval of the Georgia Department of Banking and Finance and the
Shareholders of the Holding Company, Holding Company shall grant to Executive
options for shares of the Holding Company's common stock in the following
amount: 21,000 shares of stock with the following vesting schedule: (1) 1/5 of
the shares on the anniversary of the Bank's opening; and (2) 1/5 of the shares
shall vest for each year thereafter should Executive be employed as CEO by Bank.
If Executive is terminated or resigns, he shall have ninety days to exercise any
accrued option granted herein. The exercise price of each option granted
hereunder will be equal to the greater of the "Book Value" of common stock of
the Holding Company on the date of the option being earned, or the original
offering price. Executive will have seven (7) years from date of grant to
exercise any options granted and options will be fully earned and vested at the
time of grant.
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(a) All reasonable ordinary and necessary expenses actually
incurred by Executive for his continuing professional education, customer
entertainment, office supplies, or other expenses of the Bank shall be promptly
reimbursed to him, which includes all phones and pagers pursuant to a Board of
Directors pre-approved annual budget.
(b) The Bank shall provide through bond or insurance general
liability coverage for Executive in an amount not less than one million dollars
per claim. Such coverage shall at least cover the motor vehicle provided to
Executive and claims against Executive as a Bank officer and Executive and
individually as a result of claims arising out of his employment. Such coverage
shall include all cost and legal expenses in connection with such claims.
(c) The Bank shall provide Executive with coverage under any plan
of disability insurance or benefits established by the Bank to at least the same
extent such coverage is provided to other employees.
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4. Expenses: If the Board directs the Executive to relocate
personal residence with reasonable notice to the Executive,
(a) The Bank shall provide an allowance to Executive up to an
aggregate of $5,000.00 for moving expenses upon receipt of documentation of such
expenses.
(b) The Bank shall pay all reasonable expenses incurred with the
Board's prior approval by the Executive in the performance of his
responsibilities and duties for the Bank, including without limitation the
Executive's initiation fees and dues payable to a country club and civic and
professional organizations which the Executive actively participates and the
expenses associated with the use and maintaining of a cellular phone. Executive
shall submit to the Bank periodic statements of all expenses so incurred.
Subject to such audits as the Bank may deem reasonably necessary, the Bank
shall, promptly in the ordinary course of business, reimburse the Executive for
the full amount of any such expenses advanced by the Executive. The Executive
will have sole discretion over all out of pocket expenses not exceeding $150 a
month.
5. Termination: Executive's employment under this Agreement may
be terminated at any time (i) by the Bank for Cause, as defined herein; (ii) by
the Bank upon Executive's death; (iii) by the Bank upon the Executive's
Disability, as defined herein; or (iv) by either party after the initial term of
the Agreement, upon ninety (90) days notice of termination, with or without
Cause. If Executive's employment is terminated under this Paragraph for Cause,
the Bank shall have no further liability to Executive whatsoever for
compensation or benefits other than those that have accrued prior to such
termination. "Cause" as used herein shall mean the commission of any act which,
if prosecuted, would constitute a felony; any act or omission by Executive that
may have a materially adverse effect on the Bank that is in reckless disregard
of the interests of the Bank; failure or refusal by Executive to comply with the
provisions of this Agreement if not cured within ten (10) days after the receipt
of written notice from the Bank; Executive's prolonged absence without the
consent of the Bank; or Executive's gross neglect of his duties. "Disability" as
used herein shall mean Executive's inability to perform the essential functions
of his job, with or without reasonable accommodation, due to a physical or
mental impairment for a period of six (6) consecutive months. The requirements
of this clause can be met through and with an insurance policy through and with
the Board of Directors.
6. Termination Without Cause: In the event (i) Executive resigns
at the Bank's request without Cause; (ii) Executive's employment is terminated
by the Bank without Cause, or (iii) Executive resigns because of the Bank's or
Holding Company's breach or violation of any of the terms of this Agreement
and/or because of the Bank's or Holding Company's failure or refusal to take or
perform any action or obligation to be taken or performed by it hereunder, then
as damages payable as a result of, and arising from, a breach of this Agreement,
the Bank- shall continue to pay Executive the compensation and benefits
specified in Paragraph 3.1, 3.2 and 3.3 at the rate which is in effect on the
effective date of Executive's termination of employment for two years from such
termination date. Such compensation shall be paid in equal monthly installments
or as the Bank and Executive may otherwise mutually agree upon. After the
initial contract period termination pay will drop from two years to one year. In
the event that the
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provisions of this Paragraph 6 come into effect and the Executive dies, then the
compensation and benefits payable under this Paragraph shall be paid to the
Executive's estate.
7. Change in Control: If Executive is terminated within two years
of a "Change in Control" as a result of "Involuntary Termination," the Bank
shall continue to pay Executive the compensation and benefits specified in
Paragraph 3.1, 3.2, and 3.3 at the rate which is in effect on the date of the
Change in Control for two years from such Change in Control (the "Payment
Period") less any required tax withholdings. In the event that the provisions of
this Paragraph 7 come into effect and the Executive dies, then the compensation
and benefits payable under this Paragraph shall be paid to the Executive's
estate.
For purposes of this Paragraph 7, the following terms have the
meanings stated:
(a) "Change in Control" means a change in the ownership or sale of
the then outstanding Common Stock of the Holding Company or Bank by the
shareholders thereof or the acquisition of the Holding Company or Bank by
another bank hold company, bank or other entity or by shareholders thereof; (i)
through an acquisition of more than 49% of the then outstanding Common Stock of
the Holding Company or Bank in a single transaction or in related transactions,
whether or not any of such shareholders included in the more than 49% group were
shareholders of the Holding Company or Bank prior to the change of control, or
(iii) as a result of a merger, consolidation or other reorganization involving
the Bank, after which such other company, association, entity or shareholders
thereof own either directly or indirectly, more than 49% of the outstanding
Common Stock or of the assets of the Holding Company or Bank.
(b) "Involuntary Termination" means the termination of employment
that is involuntary on the part of Executive and occurs for reasons other than
for Cause, Disability, voluntary retirement or death.
(c) "Voluntary Termination" means the termination of employment
that is voluntary on the part of Executive and, in the judgment of Executive, is
due to (i) a reduction of his responsibilities resulting from a change in title
and/or the assignment to him of any duties inconsistent with his positions,
duties or responsibilities as in effect immediately prior to the Change in
Control, including removal from the Board of Directors of the Holding Company or
Bank, or (ii) a reduction in his compensation or benefits. A termination shall
not be considered "Voluntary" within the meaning of this Agreement if such
termination is a result of Cause, Disability, voluntary retirement or death.
8. Covenant Against Post-Termination Competition: Executive
agrees that for a period of 1 year after the expiration or termination of this
Agreement for any reason he will not directly or indirectly, individually or
behalf of any Person other than the Bank:
(a) engage in, consult with, or own, control, manage or otherwise
participate in the ownership, control, or management of a business engaged in
the Bank's Business within Xxxx County, Georgia or trade/primary market area at
time of termination;
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(b) solicit any Customers for the purpose of selling to them
products or services competitive with the products or services sold by the Bank
at the time of such termination or expiration;
(c) provide services of any type provided by Executive for the
Bank during his employment hereunder, to any Person (other than the Bank) which
is then engaged within Xxxx County, Georgia in a business similar to the Bank's
Business or trade/primary market area at time of termination; or
(d) solicit or induce, or in any manner attempt to solicit or
induce, any person employed by the Bank to leave such employment, whether or not
such employment is pursuant to a written contract with the Bank is at will.
Nothing contained in this Paragraph 8 shall be construed to prohibit Executive
from owning either of record or beneficially not more than twenty five percent
(25%) of the shares or other equity interests of any Person, other than the Bank
that provides products or services competitive with the products or services
sold by the Bank. "Customers" as used herein means all Persons that (a)
Executive serviced or solicited on behalf of the Bank; (b) whose dealings with
the Bank were coordinated or supervised, in whole or in part, by Executive; (c)
about whom Executive obtained Confidential Information, as defined in Paragraph
9 hereof, in each case during the one-year period immediately prior to any
termination or expiration of Executive's employment with the Bank. "Person"
means any individual, corporation, limited liability company, bank, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or other entity.
9. Confidential Information: Executive agrees that he will not,
except with the prior written approval of the Bank, disclose Confidential
Information to any person or firm other than the Bank, or use Confidential
Information for personal financial gain within 1 year of the expiration or
termination of this Agreement for whatever cause, except that these restrictions
shall not apply to information that shall become generally known through no
fault of Executive, information that is disclosed to Executive by a third party
that has legitimate and unrestricted possession thereof and the unrestricted
right to make such disclosure, information that Executive can demonstrate was
within his legitimate and unrestricted possession prior to the time of his
employment by the Bank or its predecessor or other information not rising to the
level of a trade secret after 1 year from expiration or termination of this
Agreement. "Confidential Information" means all business records, trade secrets,
know-how concerning marketing, customer lists or compilations, financial
information, personnel data, information contained in any documents prepared by
or for the Bank and its employees at the Bank's expense or on the Bank's time or
otherwise in furtherance of the Bank's business, and made available only to the
Bank and such of its authorized agents as may be necessary to further the Bank's
business, and other confidential information used and/or obtained by Executive
in the course of his employment hereunder, are and shall remain the confidential
and exclusive property of the Bank. Executive further agrees to return to the
Bank all of the above business records and any and all copies of the same in his
control upon termination of employment with the Bank for any reason whatsoever.
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10. Miscellaneous Provisions:
(a) Any and all notices or any other communication provided for
herein shall be given in writing personally or by registered or certified mail,
return receipt requested, with proper postage prepaid, addressed in the case of
the Bank to its then principal office, and in the case of Executive or his
designated recipient(s) or other person, to the business or residence address of
such person last known to the Bank, or at such other address as any of such
parties may for itself or himself designate in writing from time to time for the
purpose of receiving notices pursuant hereto (if mailed, the date of mailing
shall constitute the date such notice or other communication is given).
(b) No party hereto will be deemed to have waived any right, power
or privilege under this Agreement or any provision hereof unless such waiver
shall have been duly executed in writing and acknowledged by the party to be
charged with such waiver. The failure of either party hereto at any time to
enforce any of the provisions of this Agreement will in no way affect the
validity of this Agreement or any party hereto, or the right of any party to
thereafter enforce each and every such provision. No waiver of any breach of
this Agreement will be held to be a waiver of any other or subsequent breach.
(c) This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter of this Agreement and
merges and shall supersede all prior agreements, commitments, representations,
writings and discussions between them concerning such matters. This Agreement
shall not be subject to change, alteration or modification, other than by an
instrument in writing duly executed by the parties hereto.
(d) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument. Captions and paragraph
headings used herein are for convenience only and are not a part of this
Agreement and shall not be used in construing it.
(e) This Agreement may not be assigned or transferred by
Executive, in whole or in part, without the prior written consent of the Bank,
and any assignment in violation of this Paragraph shall be void. The Bank shall
have the right to assign this Agreement and any of its rights hereunder only to
an affiliate of the Bank or as part of a sale or transfer of the stock, assets
or business of the Bank or any substantial portion thereof.
(f) If the Bank shall at any time be liquidated, merged or
consolidated into or with any other corporation or other entity, or in the event
substantially all of its assets shall be sold or otherwise transferred to
another corporation or other entity, the provisions of this Agreement shall
inure to the benefit of and be binding upon the corporation or other entity into
which the Bank shall be liquidated or resulting from such merger or
consolidation, or to which such assets shall be sold or transferred.
(g) This Agreement shall be construed in accordance with and
governed in all respects by the laws of the State of Georgia. Its provisions are
severable, and the invalidity, or
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unenforceability,) of one or more of the provisions herein shall not have any
effect upon the validity or enforceability of any other provision. No
modifications of this agreement shall be binding unless in writing and signed by
all the parties.
IN WITNESS WHEREOF, the undersigned parties acknowledge, agree and
affirm that they are individually and personally liable for funding the
provisions of this agreement and their financial responsibility is in no way
contingent upon their relationship to the Sweetwater Financial Group, Inc. The
parties hereto have caused this Agreement to be duly executed under seal the day
and year first above written.
SWEETWATER FINANCIAL GROUP, INC. EXECUTIVE
By:/s/ Xxxx X. Xxxxxxxxx By:/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Title: Chairman of the Board
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Signed, sealed and delivered in the presence of
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Unofficial Witness
/s/ Leigh Aikers
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Notary Public
My Commission Expires:
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