EXHIBIT 10.1
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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") dated as of November 1, 1996,
is made by and between BUCKHEAD COMMUNITY BANCORP, INC., a Georgia corporation
(the "Company" or the "Employer"), which is the proposed bank holding company
for Buckhead National Bank (Proposed), a proposed national bank with its
principal offices to be located in Atlanta, Xxxxxx County, Georgia (the "Bank"),
and XXXXXX X. XXXXXXXX, an individual resident of the State of Georgia (the
"Executive").
BACKGROUND STATEMENTS:
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WHEREAS, the Company is in the process of organizing the Bank, and the
Executive has agreed to serve as the President and Chief Executive Officer of
the Bank. Upon organization of the Bank, the Company and the Executive
contemplate that this Agreement will be assigned by the Company to the Bank and
that the Bank will assume all the duties and obligations of the Company
hereunder; and
WHEREAS, the Company recognizes that the Executive's contribution to the
growth and success of the Bank during its organization and initial years of
operations will be a significant factor in the success of the Bank, and desires
to provide for the employment of the Executive in a manner which will reinforce
and encourage the dedication of the Executive to the Bank and promote the best
interests of the Bank and its shareholders; and
WHEREAS, the Executive is willing to serve the Company (and, after
assignment of this Agreement by the Company to the Bank, the Bank) on the terms
and conditions herein provided.
In consideration of the foregoing, the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Definitions. For all purposes of this Agreement, the following terms
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shall have the following meanings:
(a) "Accrued Compensation" shall mean an amount which includes all
amounts earned or accrued by the Executive hereunder through the Termination
Date, but not paid as of the Termination Date, including (i) base salary and any
vacation time earned but not used by the Executive, (ii) reimbursement for
reasonable and necessary expenses incurred by the Executive on behalf of the
Employer during the period ending on the Termination Date, and (iii) bonuses and
incentive compensation owed to the Executive by the Employer.
(b) "Board" shall mean the Board of Directors of the Employer.
(c) The termination of the Executive's employment shall be for
"Cause" if such termination is a result of:
(i) any act or conduct that (A) constitutes, on the part of the
Executive, fraud, dishonesty, gross malfeasance of duty, or conduct
grossly inappropriate to the Executive's office, and (B) is likely to
lead to material injury (monetarily or otherwise) to the Employer or
its shareholders, or resulted or was intended to result in direct or
indirect gain to or personal enrichment of the Executive;
(ii) the conviction (from which no appeal may be or is timely
taken) of the Executive of a felony or a crime involving moral
turpitude; or
(iii) the suspension or removal of the Executive as the
President of the Bank by federal or state banking 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;
provided, however, that in the case of clause (i) above, such conduct shall
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not constitute Cause unless (A) there shall have been delivered to the Executive
a written notice setting forth with specificity the reasons that the Board
believes the Executive's conduct constitutes the criteria set forth in clause
(i), (B) the Executive shall have been provided the opportunity to be heard in
person by the Board (with the assistance of the Executive's counsel if the
Executive so desires), and (C) after such hearing, the termination is evidenced
by a resolution adopted by at least two-thirds of the members of the Board
(other than the Executive).
(d) "Confidential Information" shall mean any and all data, trade
secrets (as defined under applicable law), formulae, processes, documents,
agreements or other information, whether or not in writing, transferred,
conveyed, delivered, disclosed, divulged, disseminated or otherwise obtained
from the Employer, any of its affiliates or any of their respective directors,
officers, employees, agents, accountants, counsel, investment bankers or other
representatives (each, its "Representative") by the Executive on and after the
date hereof in connection with or in any way relating to the Employer or any of
its affiliates, including but not limited to, information concerning (i) the
business operations and prospects or internal structure of the Employer or any
of its affiliates; (ii) the identities or characteristics of the actual or
potential customers or clients of the Employer or any of its affiliates, or
(iii) services, products and pricing structure of the Employer or any of its
affiliates. Notwithstanding the foregoing sentence, this Agreement shall not
apply to any information, other than trade secrets, that is already known to the
Executive at the time such information is disclosed by the Employer or its
affiliate or a Representative thereof to the Executive or that, before being
disclosed to the Executive, (I) has become publicly known through no wrongful
act of the Executive, (II) has been rightfully received by the Executive from a
third party without restriction on disclosure and without breach of this
Agreement, any similar agreement or any legal or equitable duty, or (III) has
been furnished by the Company to a third party without a similar restriction on
disclosure by such third party.
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(e) "Disability" shall mean a physical or mental infirmity which
impairs the Executive's ability to substantially perform his duties with the
Employer for a period of 180 consecutive days, as determined by an independent
physician selected with the approval of both the Employer and the Executive.
(f) "Employer" shall mean the Company prior to the assignment by it
of this Agreement to the Bank and the Bank after such assignment.
(g) "Notice of Termination" shall mean a written notice of
termination from the Employer or the Executive which specifies an effective date
of termination, indicates the specific termination provision in this Agreement
relied upon, and sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
(h) "Opening Date" shall mean the date the Bank commences banking
operations following issuance of its charter and commencement of insurance of
its deposits.
(i) "Termination Date" shall mean, in the case of the Executive's
death, his date of death, and in all other cases, the date specified in the
Notice of Termination.
2. Employment. The Employer shall employ the Executive, and the
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Executive shall serve and perform the services for the Employer, as the
President and Chief Executive Officer of the Employer upon the terms and
conditions and for the period set forth herein. The Executive shall have such
authority and responsibilities consistent with his position as are set forth in
the Employer's Bylaws or assigned by the Board from time to time. The Executive
shall devote his full business time, attention, skill and efforts to the
performance of his duties hereunder, except during periods of illness or
vacation and leaves of absence from employment consistent with the Employer's
employment policy as in effect from time to time. The Executive may devote
reasonable periods to service as a director or advisor to other organizations,
to charitable and community activities, and to managing his personal
investments, provided that such activities do not materially interfere with the
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performance of any of his duties hereunder and are not, directly or indirectly,
in conflict or competitive with, or adverse to, the interests of the Employer or
its shareholders.
3. Term. Unless earlier terminated as provided herein, the Executive's
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employment under this Agreement shall commence on the date hereof and continue
until the termination thereof pursuant to Section 5 hereof (the "Term").
4. Compensation and Benefits. During the Term, the Executive shall
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receive the following compensation and benefits:
(a) Prior to the Opening Date, the Employer shall pay the Executive a
salary of forty-five thousand dollars ($45,000) per annum, in accordance with
the Employer's standard payroll procedures and policies as in effect from time
to time. From and after the Opening Date, the Employer shall pay the Executive
an annual salary of ninety thousand dollars ($90,000), plus
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his yearly medical insurance premium, in accordance with the Employer's standard
payroll procedures and policies as in effect from time to time.
(b) Beginning as of the Opening Date, the Executive shall participate
in all retirement, welfare and other benefit plans or programs of the Employer
now or hereafter applicable generally to employees of the Employer or to a class
of employees that includes senior executives of the Employer; provided that
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during any period during the Term that the Executive is subject to a Disability,
and during the 180-day period of physical or mental infirmity leading up to the
Executive's Disability, the amount of the Executive's compensation provided
under this Section 4 shall be reduced by the sum of the amounts, if any, paid to
the Executive for the same period under any disability benefit or pension plan
of the Employer or any of its affiliates.
(c) Beginning as of the Opening Date, the Employer shall provide the
Executive with a term life insurance policy providing for death benefits
totaling two hundred fifty thousand dollars ($250,000) payable to the
Executive's designated beneficiary, and the Executive shall cooperate at all
times with the Employer in the securing and maintenance of such policy.
(d) Beginning as of the date hereof, the Company shall provide the
Executive with an automobile (at a cost not to exceed $9,000 per year) owned or
leased by the Company of a make and model appropriate for the Executive's
employment status as provided hereunder.
(e) Beginning as of the Opening Date, the Employer shall pay for the
reasonable costs and expenses of the Executive's attendance each year during the
term of the annual meeting of the Community Bankers Association of Georgia and
the Independent Bankers Association of America.
(f) Beginning as of the Opening Date, the Employer shall pay the
reasonable annual dues and membership fees for membership by the Executive in
such civic, business and social organizations or clubs appropriate to his duties
hereunder as the Board shall determine.
(g) Beginning as of the Date hereof, the Employer shall reimburse the
Executive for reasonable travel and other expenses related to the Executive's
duties which are incurred and accounted for in accordance with the normal
practices of the Employer, subject to the presentment by the Executive to the
Employer of appropriate vouchers or other customary evidence of expense
verification.
(h) The Employer shall reimburse the Executive for any actual
expenses reasonably incurred by the Executive in moving his immediate family and
household goods from LaFayette, Alabama to Atlanta, Georgia in an amount not to
exceed five thousand dollars ($5,000), subject to the presentment by the
Executive to the Employer of appropriate vouchers or other customary evidence of
expense verification.
5. Termination.
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(a) The Executive's employment under this Agreement may be terminated
prior to the end of the Term only as follows:
(i) automatically upon the death of the Executive;
(ii) by the Employer due to the Disability of the Executive upon
delivery by the Employer of a Notice of Termination to the Executive;
(iii) by the Employer for Cause upon delivery by the Employer of
a Notice of Termination to the Executive;
(iv) by the Employer other than for Cause effective upon the
60th day after delivery by the Employer of a Notice of Termination to
the Executive;
(v) by the Employer, if its effort to organize the Bank is
abandoned at any time, upon delivery by the Employer of a Notice of
Termination to the Executive; and
(vi) by the Executive effective upon the 60th day after delivery
of a Notice of Termination to the Employer.
(b) If the Executive's employment with the Employer is terminated
during the Term for any reason by either the Employer or the Executive, the
Employer shall pay to the Executive (or, in the case of his death, the
Executive's estate) within thirty (30) days after the Termination Date a lump
sum cash payment equal to the Accrued Compensation.
6. Confidential Information. The Executive shall not, at any time,
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either during the Term of his employment or following the Termination Date, use
or disclose, reveal, disseminate or otherwise make known to any other person,
directly or indirectly, any Confidential Information of the Employer, except in
fulfillment of his duties as the Executive during his employment by the Employer
pursuant to the terms hereof. Upon any termination or expiration of this
Agreement, or at any time upon the Employer's request, the Executive shall
deliver to the Employer (a) all of the Employer's records, documents, customer
lists, papers, notes, software, computers, modems, diskettes, instruments,
tools, devices, plans, drawings and other materials, and any copies thereof, in
the Executive's possession or control that relate in any way to the business of
the Employer or any of its affiliates, and (b) all other property relating to
the employment of the Executive by the Employer, including, without limitation,
company credit cards, telephone cards, office keys, desk keys and security
passes.
7. Restrictive Covenants.
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(a) The Executive shall not, during the Term and for a period of
three (3) years after the Termination Date, either for himself or on behalf of
any other person, directly or indirectly, without receipt of the prior written
consent of the Employer, (i) serve as a director, officer at the vice president
level or higher, or organizer or promoter of, or provide executive management
services to, any bank, savings bank, trust company bank and trust company,
savings
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and loan association or other financial institution or holding company
thereof located or conducting business within Xxxxxx County, Georgia, (ii)
solicit or aid in the solicitation of any Major Customer (as defined herein) for
the purpose of providing banking services to such Major Customer, or (iii)
solicit or aid in the solicitation of any Employee (as defined herein) of the
Employer for employment of such Employee by any other party. For purposes of
this Section 7, a "Major Customer" shall mean any customer of the Employer that
Employee has contacted, negotiated with, or performed any services on behalf of,
during the Term or the last 24 months of the Term, whichever is shorter, and
that has maintained or purchased from the Employer at any time during such
period deposits, mutual funds or other investments in excess of $100,000, and an
"Employee" shall mean any individual who was employed by the Employer, or any of
its affiliates as of the Termination Date or at any time during the 12 month
period prior to such date. The Executive acknowledges and agrees that each of
the restrictive covenants contained in this Section 7 are reasonable and
necessary to protect the legitimate economic interests of the Employer created
by this Agreement.
(b) The Executive represents and warrants to the Employer that the
Executive is not a party to any employment or other agreement which prohibits or
limits the Executive from performing any of the duties and services contemplated
to be performed by the Executive under this Agreement.
8. Successors; Binding Agreement.
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(a) This Agreement shall be binding upon and shall inure to the
benefit of the Employer or its successors and assigns.
(b) Neither this Agreement nor any right or interest hereunder shall
be assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal personal representative. The Company may assign this
Agreement in its entirety to the Bank.
9. Notice. For the purposes of this Agreement, notices and all other
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communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each party
to the other, provided that all notices to the Employer shall be directed to the
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attention of the Board with a copy to the Secretary of the Employer. All
notices and communications shall be deemed to have been received on the date of
delivery thereof, except that notice of change of address shall be effective
only upon receipt.
10. Settlement of Claims. The Employer's obligation to make the payments
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provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense, or other right which
the Employer may have against the Executive or any other person. The Employer
may, however, withhold from any benefits payable under this Agreement all
federal,
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state, city, or other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
11. Modification and Waiver. No provisions of this Agreement may be
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modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and the Employer. No waiver by
any party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
12. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of Georgia without giving
effect to the conflict of laws principles thereof. Any action brought by any
party to this Agreement shall be brought and maintained in a court of competent
jurisdiction in Xxxxxx County in the State of Georgia.
13. Severability. The parties agree that the provisions of this Agreement
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are severable and the invalidity or unenforceability of any provision in whole
or part shall not affect the validity or enforceability of any enforceable part
of such provision or any other provisions hereof. It is further agreed that the
courts may "blue pencil" the provisions of this Agreement to provide for maximum
enforcement of such provisions.
14. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
15. Headings. The headings of Sections herein are included solely for
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convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
16. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
17. Equal Participation. Each of the parties hereto acknowledges and
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agrees that such party has participated equally in the negotiation and
preparation of this Agreement and the rule that this Agreement or any term or
provision hereof shall be construed against the drafter hereof shall not be
applied against either party hereto in enforcing this Agreement or interpreting
any term or provision hereof.
18. Remedies. It is further understood and agreed that money damages
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would not be a sufficient remedy for any breach of this Agreement by either
party or any of the Recipient Representatives and that either party shall be
entitled to equitable relief, including injunction and specific performance, as
a remedy for any such breach. Such remedies shall not be deemed to be the
exclusive remedies for a breach by the receiving party or any of the Recipient
Representatives but shall be in addition to all other remedies available at law
or equity. In the event of litigation relating to this Agreement, if a court of
competent jurisdiction determines that
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either party or any of such party's Recipient Representatives have breached this
Agreement, then the breaching party shall be liable and pay to the other the
reasonable legal fees incurred by such party in connection with such litigation,
including any appeal therefrom.
19. Taxes. All payments made to the Executive under this Agreement shall
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be made net of all required withholding of federal, state and local income and
employment taxes.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and its seal to be affixed hereunto by its officers thereunto duly authorized,
and the Executive has signed and sealed this Agreement, effective as of the date
first above written.
Company:
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BUCKHEAD COMMUNITY BANCORP, INC.
ATTEST:
By: By:
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Xxxxxxx X. Xxxxxxx R. Xxxxxxx Xxxxxxxxxx, Xx.
Secretary Chairman of the Board
[Corporate Seal]
Executive:
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(L.S.)
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Xxxxxx X. Xxxxxxxx
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The Company hereby assigns all of its rights and obligations under this
Agreement to the Bank, and the Bank hereby assumes such obligations and invests
itself of such rights.
Company:
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BUCKHEAD COMMUNITY BANCORP, INC.
ATTEST:
By: By:
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Xxxxxxx X. Xxxxxxx R. Xxxxxxx Xxxxxxxxxx, Xx.
Secretary Chairman of the Board
[Corporate Seal]
Bank:
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BUCKHEAD NATIONAL BANK
ATTEST:
By: By:
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Xxxxxxx X. Xxxxxxx R. Xxxxxxx Xxxxxxxxxx, Xx.
Secretary Chairman of the Board
[Bank Seal]
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