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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), made and entered into as of
November 1, 1997 by and between X. X. Xxxxxx, Xx., a resident of the State of
Georgia ("Employee") and CNB Holdings, Inc., a Georgia bank holding company and
Chattahoochee National Bank, CNB's wholly owned subsidiary (collectively "CNB").
W I T N E S S E T H:
WHEREAS, CNB and Employee each desire to enter into, or continue, an
employment relationship with the other; and
WHEREAS, CNB and Employee each deem it necessary and desirable, for
their mutual protection, to execute a written document setting forth the terms
and conditions of said relationship;
NOW, THEREFORE, in consideration of the employment of Employee by CNB,
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. CNB hereby employs Employee to serve as
President and Chief Executive Officer and to perform such duties and
responsibilities as customarily performed by persons acting in such capacity.
During the terms of this Agreement, Employee will devote his full time and
effort to his duties hereunder.
2. Term. The period of Employee's employment under this Agreement shall
be deemed to have commenced as of the date of receipt of the opening letter from
its primary regulator, and shall continue for a period of thirty-six (36)
calendar months thereafter, unless (i) the Employee dies before the end of such
thirty-six (36) months, or (ii) CNB is not successful in obtaining a charter or
an opening letter from the Office of the Comptroller of the Currency or the
Federal Deposit Insurance Corporation, in either case the period of employment
shall continue until the earlier of the end of the month of such death or the
denial of charter or opening occurs.
3. Compensation. For all services to be rendered by Employee during the
term of this Agreement, CNB agrees to pay Employee in accordance with the terms
outlined in Exhibit A net of applicable withholdings.
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4. Expenses. So long as Employee is employed hereunder, Employee is
entitled to receive reimbursement for, or seek payment directly by CNB of, all
reasonable expenses which are consistent with the normal policy of CNB in the
performance of Employee's duties hereunder, provided that Employee accounts for
such expenses in writing.
5. Employee Benefits. So long as Employee is actively employed
hereunder, Employee will be entitled to participate in the employee benefit
programs covering the Employee's employment and duties as described in Exhibit A
of this Agreement, if any, provided and paid for by CNB for its employees
generally.
6. Vacation. Employee shall be entitled to a vacation in accordance
with CNB's vacation policy in effect at the time the vacation is to be taken.
7. Confidentiality. In Employee's position as an employee of CNB,
Employee has had and will have access to confidential information, trade secrets
and other proprietary information of vital importance to CNB and has and will
also develop relationships with customers, employees and others who deal with
CNB which are of value to CNB. CNB requires as a condition to Employee's
employment with CNB that Employee agrees to certain restrictions on Employee's
use of the proprietary information and valuable relationships developed during
Employee's employment with CNB. In consideration of the terms and conditions
contained herein, the parties hereby agree as follows:
7.1 CNB and Employee mutually agree and acknowledge that CNB
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 CNB to protect
such information from use or disclosure that is not necessary for the
performance of Employee's duties hereunder, as an essential incident of
Employee's employment with CNB.
7.2 For the purposes of this Section, the following
definitions shall apply:
7.2.1 "TRADE SECRET" shall mean the identity of customers of
CNB, 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 CNB)
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 CNB and not
generally known by the public. Confidential Information shall include,
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but not be limited to, Business Opportunities of CNB (as hereinafter defined),
the details of this Agreement, CNB's business plans and financial statements and
projections, and the costs of the services CNB may offer or provide to the
customers they serves, to the extent such information is material to CNB and not
generally known by the public.
7.2.3 "BUSINESS OPPORTUNITIES" shall mean any specialized
information or plans of CNB concerning the provision of financial services to
the public, together with all related information concerning the specifics of
any contemplated financial services regardless of whether CNB 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 CNB's Board of Directors approves for
release.
7.3 Employee shall not, without the prior approval of
NB's Board, during his employment with CNB 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 CNB to use, disclose, or gain
access to, any Trade Secrets of CNB, its subsidiaries or affiliates, or of any
other person or entity making Trade Secret's available for CNB's use.
7.4 Employee shall not, without the prior written consent
of CNB, during his employment with CNB and for a period of two (2) years
thereafter as long as the information or data remain competitively sensitive,
use or disclose, or negligently permit any unauthorized person who is not
employed by CNB to use, disclose, or gain access to, any Confidential
Information to which the Employee obtained access by virtue of his employment
with CNB, except as provided in Section 7.2 of this Agreement.
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8. Observance of Security Measures. During Employee's employment with
CNB, Employee is required to observe all security measures adopted to protect
Trade Secrets, Confidential Information, and Business Opportunity of CNB.
9. Return of Materials. Upon the request of CNB and, in any event, upon
the termination of his employment with CNB, Employee shall deliver to CNB all
memoranda, notes, records, manuals or other documents, including all copies of
such materials, pertaining to the performance of Employee's services hereunder
or 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 CNB.
10. Severability. Employee acknowledges and agrees that the covenants
contained in Sections 7 through 9 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 between CNB and Employee, and that the existence of any claim, suit
or action by Employee against CNB, whether predicated upon this or any other
agreement, shall not constitute a defense to CNB's enforcement of any covenant
contained in Sections 7 through 9 of this Agreement.
11. Specific Performance. Employee acknowledges and agrees that the
covenants contained in Sections 7 through 9 of this Agreement shall survive any
termination of employment, as applicable, with or without Cause, at the
instigation or upon the initiative of either 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 of this
Agreement would be difficult, if at all possible. Employee therefore
acknowledges and agrees that CNB shall be entitled in addition to and not in
limitation of any other rights, remedies, or damages available to CNB 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. During the term of this Agreement, employment,
including without limitation, all compensation, salary, expenses, reimbursement,
and employee benefits may be terminated as follows:
12.1 At the election of CNB for Cause;
12.2 At Employee's election, upon CNB's breach of any
material provision of this Agreement;
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12.3 "Cause" shall mean (i) conduct by Employee that
amounts to fraud, 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; or (iii) initiation of
suspension or removal proceedings against Employee by 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. No
termination for Cause shall be effective unless it is approved by a two-thirds
(2/3) vote of CNB's Board of Directors, excluding the vote, if any, of Employee;
or
12.4 Upon Employee's death, or at the election of either
party, upon Employee's disability resulting in inability to perform the duties
described in Section 1 of this Agreement for a period of ninety (90) consecutive
days as determined by CNB's Board of Directors in its sole discretion.
13. Notice. 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:
CNB: CNB Holdings, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Chairman
with a copy to: Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esquire
Employee: X. X. Xxxxxx, Xx.
000 Xxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
with a copy to: Xxxx & Associates
0000 Xxxxx Xxxxx Xxxx
Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esquire
14. Covenant Not to Compete.
14.1 For purposes of this Section 14, CNB and Employee
conduct the following business in the following territories:
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14.1.1 CNB is engaged in the business of
transacting business as a bank holding company with subsidiary banks which
accept deposits, make loans, cash checks and otherwise engage in the business of
banking ("Business of CNB").
14.1.2 CNB (through its subsidiaries) actively
conducts business in the geographic areas of Georgia at the business locations
of CNB's subsidiaries set forth in Exhibit B of this Agreement.
14.1.3 Employee has established business
relationships and performs the duties described in Section 1 of this Agreement
in the geographic area covered by a circle having a radius of fifty (50) miles
from the location set forth as item 1 on EXHIBIT "B" of this Agreement, and will
work predominately in such area while in the employ of CNB.
14.2 Employee covenants and agrees that for a period of one
(1) year after the termination of his employment with CNB without Cause,
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
the duties described in Section 1 of this Agreement for any entity or person
conducting the Business of CNB within the geographic area covered by a circle
having a radius of fifty (50) miles from the location set forth on EXHIBIT "B"
of this Agreement.
14.3 The covenants contained in this Section 14 shall be
construed as agreements severable from and independent of each other and of any
other provision of this or any other contract or agreement between the parties
hereto. The existence of any claim or cause of action by Employee against CNB,
whether predicated upon this or any other contract or agreement, shall not
constitute a defense to the enforcement by CNB of said covenants.
15. Miscellaneous.
15.1 This Agreement constitutes and expresses the whole
agreement of the parties in reference to the employment of Employee by CNB, 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.
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15.4 Time is of the essence in this Agreement.
15.5 This Agreement shall be binding upon and enure to the
benefit of the parties hereto and their successors and assigns. This Agreement
shall not be assignable by any other parties hereto without the prior written
consent of the other parties.
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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
"Employee"
/s/ X.X. Xxxxxx, Xx. (SEAL)
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Witness X. X. Xxxxxx, Xx.
ATTEST: "CNB"
CNB HOLDINGS, INC.
By:__________________________ By:/s/ W. Xxxxx Xxxxxx
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_______________Secretary W. Xxxxx Xxxxxx, Chairman
(CORPORATE SEAL) By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Chairman of the
Compensation Committee
CHATTAHOOCHEE NATIONAL BANK
By:_________________________ By: /s/ W. Xxxxx Xxxxxx
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_______________Secretary W. Xxxxx Xxxxxx, Chairman
(BANK SEAL) By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Chairman of the
Compensation Committee
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