EXHIBIT 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") by and between
Community Financial Holding Company, Inc., a Georgia corporation ("Company"),
and Xxx X. Xxxxxxxx ("Executive")(collectively referred to as the "Parties"), is
entered into and effective as of the January 1, 2004 (the "Effective Date").
WHEREAS, the Company desires to employ Executive as Executive Vice
President, Chief Operating Officer and Chief Financial Officer, and Executive
desire to accept said employment by the Company;
WHEREAS, Executive's position is a position of trust and responsibility
with access to Confidential Information, Trade Secrets, and information
concerning employees and customers of the Company, all of which are valuable
assets of the Company and may not be used for any purpose other than the
Company's Business;
WHEREAS, the Company has agreed to employ Executive upon certain terms
and conditions as expressed in this Agreement in exchange for Executive's
compliance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, it is agreed:
1. EMPLOYMENT & DUTIES.
A. Company shall employ Executive as Executive Vice President, Chief
Operating Officer and Chief Financial Officer, in accordance with the terms and
conditions set forth in this Agreement. Executive accepts employment on the
terms set forth herein. Executive shall report to the Chief Executive Officer
and the Board.
B. Executive shall have those duties ("Duties") assigned to, or normally
associated with, the Executive's position and such other duties as may otherwise
be assigned to Executive by the Chief Executive Officer or the Board from time
to time.
C. Executive agrees that Executive shall at all times faithfully and to the
best of Executive's ability and experience perform all of the duties that may be
required of Executive pursuant to the terms of this Agreement. Executive shall
devote Executive's full business time to the performance of Executive's
obligations hereunder. Executive shall not render to others any service of any
kind for compensation or engage in any activity which conflicts or interferes
with the performance of Executive's obligations under this Agreement without the
express written consent of the Chief Executive Officer or the Board of the
Company.
2. COMPENSATION.
A. BASE SALARY. During the term of this Agreement, Company shall pay to
Executive a base salary of $125,000.00 per year ("Base Salary"), subject to all
applicable withholdings. Executive's Base Salary may be increased (but not
decreased) annually at the discretion of the Board or the Chief Executive
Officer. Executive's Base Salary shall be paid to Executive in accordance with
the Company's normal payroll practices.
B. PERFORMANCE RELATED BONUS. During the term of this Agreement, Executive
shall be eligible to receive a Performance-Related Bonus calculated on an annual
basis. If this Agreement terminates for any reason other than the reasons stated
in subsections A, D or E of Section 3 of this Agreement, then Executive will
receive a pro rated portion of the Performance-Related Bonus based upon the
portion of the calendar or fiscal year of the Performance-Related Bonus during
which the Executive was employed. If this Agreement terminates for any of the
reasons stated in subsections A, D or E of Section 3 of this Agreement, then
Executive will not receive any Performance-Related Bonus for the calendar or
fiscal year during which the Executive's termination occurs. The
Performance-Related Bonus shall be subject to all applicable withholdings and
will be paid no later than one hundred fifteen (115) days after the end of such
calendar or fiscal year. The Performance-Related Bonus will be computed in the
sole and absolute discretion of the Company based upon the Company's audited
financial statements.
C. PENSION, WELFARE & FRINGE BENEFITS. Executive shall be entitled to
participate in each
"employee welfare benefit plan" (within the meaning of ERISA Section 3(1)), each
"employee pension benefit plan" (within the meaning of ERISA Section 3(2)), and
each "specified fringe benefit plan" (within the meaning of Code Section 6039D)
sponsored or maintained by the Company generally to any employee of the Company
from time to time, subject to the terms and conditions of such plans and
programs. The Executive shall also be entitled to any "fringe benefit" (within
the meaning of Code Section 132) which is generally provided to any employee of
the Company, subject to the rules in effect regarding participation in such
benefit arrangement. In addition, Executive shall be entitled to paid vacation
in accordance with the Company's vacation policies, as they may exist from time
to time.
D. BUSINESS EXPENSES. The Company will reimburse Executive for all
reasonable ordinary and necessary business-related expenses incurred by
Executive in the performance of his duties under this Agreement, provided that
Executive presents invoices or vouchers for such expenses or other evidence
thereof to the Company in accordance with the Company's general reimbursement
policy in effect for executives.
3. TERM & TERMINATION.
This Agreement is effective as of the Effective Date, and shall continue
until terminated upon the occurrence of any of the following events:
A. By the Executive but not for Good Reason. For this purpose, the phrase
"but not for Good Reason" shall mean a termination by the Executive at any time
and for any reason which is not defined in subsections B-G below;
B. Executive's death;
C. Executive's Disability which renders Executive unable to perform the
essential functions of Executive's job even with reasonable accommodation and
which has continued for a period of six (6) months;
D. Mutual written agreement between Executive and the Company at any time;
E. By the Company for Cause.
F. By the Company without Cause. For this purpose, the phrase "without
Cause" shall mean a termination by the Company at any time and for any reason
not defined in subsections B-E above or subsection G below;
G. By the Executive for Good Reason.
H. By the Company within the one (1) year period beginning on the date of a
Change of Control.
4. POST TERMINATION PAYMENT OBLIGATIONS.
A. TERMINATION BY EXECUTIVE WITHOUT GOOD REASON, TERMINATION BY COMPANY FOR
CAUSE, AND MUTUALLY AGREED TERMINATION. If this Agreement terminates for any of
the reasons stated in subsections A, D or E of Section 3 of this Agreement,
then, Executive shall be entitled to receive Executive's Base Salary through the
termination date, and thereafter the Company shall have no further obligations
under this Agreement, but Executive shall continue to be bound by subsections A,
B, and C of Section 7, and all other post-termination obligations to which
Executive is subject, including, but not limited to, the obligations contained
in this Agreement.
B. TERMINATION BY DEATH OR DISABILITY OF EXECUTIVE. If this Agreement
terminates for any of the reasons stated in subsections B or C of Section 3 of
this Agreement, then Executive shall be entitled to receive Executive's Base
Salary through the termination date, and thereafter the Company shall have no
further obligations under this Agreement, except for the obligation to pay
Executive a pro rata portion of the Performance-Related Bonus under Section 2 B,
but Executive shall continue to be bound by subsections A, B, and C of Section
7, and all other post-termination obligations to which Executive is subject,
including, but not limited to, the obligations contained in this Agreement.
C. TERMINATION BY COMPANY WITHOUT CAUSE OR TERMINATION BY EXECUTIVE FOR
GOOD REASON. If this Agreement is terminated by the Company without Cause
pursuant to subsection F of Section 3 of this Agreement or if this Agreement is
terminated by the Executive for Good Reason pursuant to subsection G of Section
3 of this Agreement, then (unless subsection D below is applicable) the Company
shall pay to or provide to the Executive the following:
1. A single lump sum cash separation payment equal to twelve (12)
months Base Salary as in effect as of the date of termination; and
2. Reimbursement of any premiums for COBRA continuation coverage for
the Executive or the Executive's spouse paid by the Executive or the
Executive's spouse during the eighteen (18) month period beginning on the
date of termination.
These separation payments and benefits set forth in the preceding sentence shall
constitute full satisfaction of the Company's obligations
Executive Employment Agreement
Page 2
under this Agreement. The Company's obligation to make the separation payments
and benefits in this subsection C shall be conditioned upon Executive's:
1. Execution of a Separation and Release Agreement in a form approved
by the Company whereby Executive releases the Company from any and all
liability and claims of any kind; and
2. Compliance with the restrictive covenants (subsections A, B, and C
of Section 7) and all post-termination obligations, including, but not
limited, the obligations contained in this Agreement.
The Company's obligation to make the separation payments set forth in this
subsection C of this Section 4 shall terminate immediately upon any breach by
Executive of any post-termination obligations to which Executive is subject.
D. TERMINATION BY COMPANY WITHOUT CAUSE WITHIN ONE YEAR OF A CHANGE OF
CONTROL. If this Agreement is terminated by the Company without Cause within one
(1) year of a Change of Control pursuant to subsection H of Section 3 of this
Agreement, then subsection C of Section 4 of this Agreement shall not apply, and
instead the Company shall pay to or provide to the Executive the following:
1. A single lump sum cash separation payment equal to equal to
twenty-four (24) times the Executive's Average Monthly Base Salary
determined as of the date of termination; and
2. Reimbursement of any premiums for COBRA continuation coverage for
the Executive or the Executive's spouse paid by the Executive or the
Executive's spouse during the eighteen (18) month period beginning on the
date of termination.
These separation payments and benefits set forth in the preceding sentence shall
constitute full satisfaction of the Company's obligations under this Agreement.
The Company's obligation to make the separation payments and benefits in this
subsection D shall be conditioned upon Executive's:
1. Execution of a Separation and Release Agreement in a form approved
by the Company whereby Executive releases the Company from any and all
liability and claims of any kind; and
2. Compliance with the restrictive covenants (subsections A, B, and C
of Section 7) and all post-termination obligations, including, but not
limited, the obligations contained in this Agreement.
The Company's obligation to make the separation payments set forth in this
subsection D of this Section 4 shall terminate immediately upon any breach by
Executive of any post-termination obligations to which Executive is subject.
5. SET OFF.
If Executive has any outstanding obligations to the Company at the time
this Agreement terminates for any reason, Executive acknowledges that the
Company is authorized to deduct any amounts owed to the Company from Executive's
final paycheck and/or from any amounts that would otherwise be due to Executive
under Section 4 above. However, notwithstanding the foregoing, this Section 5
shall not apply with respect to loans made in the normal course of business by
the Company or any subsidiary of the Company which are made in accordance with
Regulation O.
6. ASSETS, BOOKS & RECORDS.
Executive agrees that all files, documents, records, customer lists, books
and other materials or company assets which come into Executive's use or
possession during the term of this Agreement and which are in any way related to
the Company's business shall at all times remain the property of the Company,
and that upon request by Company or upon the termination of this Agreement for
any reason, Executive shall immediately surrender to Company all such property
and copies thereof.
7. RESTRICTIVE COVENANTS.
Executive acknowledges that the restrictions contained in this Section 7
are reasonable and necessary to protect the legitimate business interests of the
Company, and will not impair or infringe upon Executive's right to work or earn
a living after Executive's employment with the Company ends.
A. TRADE SECRETS AND CONFIDENTIAL INFORMATION. Executive represents and
warrants that: (i) Executive is not subject to any legal or contractual duty or
agreement that would prevent or prohibit Executive from performing Executive's
duties for the Company or otherwise complying with this Agreement, and (ii)
Executive is not in breach of any legal or contractual duty or agreement,
including any agreement concerning trade secrets or confidential information
owned by any other party.
Executive agrees that Executive will not: (i) use, disclose, or reverse
engineer the Trade
Executive Employment Agreement
Page 3
Secrets or the Confidential Information for any purpose other than the Company's
Business, except as authorized in writing by the Company; (ii) during
Executive's employment with the Company, use, disclose, or reverse engineer (a)
any confidential information or trade secrets of any former employer or third
party, or (b) any works of authorship developed in whole or in part by Executive
during any former employment or for any other party, unless authorized in
writing by the former employer or third party; or (iii) upon Executive's
resignation or termination (a) retain Trade Secrets or Confidential Information,
including any copies existing in any form (including electronic form), which are
in Executive's possession or control, or (b) destroy, delete, or alter the Trade
Secrets or Confidential Information without the Company's written consent.
The obligations under this subsection A shall: (i) with regard to the Trade
Secrets, remain in effect as long as the information constitutes a trade secret
under applicable law, and (ii) with regard to the Confidential Information,
remain in effect during the Restricted Period.
The confidentiality, property, and proprietary rights protections available
in this Agreement are in addition to, and not exclusive of, any and all other
rights to which the Company is entitled under federal and state law, including,
but not limited to, rights provided under copyright laws, trade secret and
confidential information laws, and laws concerning fiduciary duties.
B. NON-SOLICITATION OF CUSTOMERS. During the Restricted Period, Executive
will not directly or indirectly solicit any Customer of the Company for the
purpose of providing any goods or services competitive with the Business. The
restrictions set forth in this subsection B apply only to the Customers with
whom Executive had Contact.
C. NON-RECRUIT OF EXECUTIVES. During the Restricted Period, Executive will
not directly or indirectly solicit, recruit or induce any Company Executive to
(a) terminate his or her employment relationship with the Company or (b) work
for any other person or entity engaged in the Business.
8. WORK PRODUCT.
Executive's employment duties may include inventing in areas directly or
indirectly related to the business of the Company or to a line of business that
the Company may reasonably be interested in pursuing. All Work Product arising
during the period of the Executive's employment with the Company or during the
Restricted Period shall constitute work made for hire. If (i) any of the Work
Product may not be considered work made for hire, or (ii) ownership of all
right, title, and interest to the legal rights in and to the Work Product will
not vest exclusively in the Company, then, without further consideration,
Executive assigns all presently-existing Work Product to the Company, and agrees
to assign, and automatically assign, all future Work Product arising during the
period of the Executive's employment with the Company or during the Restricted
Period to the Company.
The Company will have the right to obtain and hold in its own name
copyrights, patents, design registrations, proprietary database rights,
trademarks, rights of publicity, and any other protection available in the Work
Product. At the Company's request, Executive agrees to perform, during or after
Executive's employment with the Company, any acts to transfer, perfect and
defend the Company's ownership of the Work Product, including, but not limited
to: (i) executing all documents (including a formal assignment to the Company)
necessary for filing an application or registration for protection of the Work
Product (an "Application"), (ii) explaining the nature of the Work Product to
persons designated by the Company, (iii) reviewing Applications and other
related papers, or (iv) providing any other assistance reasonably required for
the orderly prosecution of Applications.
Executive agrees to provide the Company with a written description of any
Work Product in which Executive is involved (solely or jointly with others) and
the circumstances surrounding the creation of such Work Product.
9. LICENSE.
During Executive's employment and after Executive's employment with the
Company ends, Executive grants to the Company an irrevocable, nonexclusive,
worldwide, royalty-free license to: (i) make, use, sell, copy, perform, display,
distribute, or otherwise utilize copies of the Licensed Materials, (ii) prepare,
use and distribute derivative works based upon the Licensed Materials, and (iii)
authorize others to do the same. Executive shall notify the Company in writing
of any Licensed Materials Executive delivers to the Company.
10. RELEASE.
During Executive's employment and during the Restricted Period, Executive
consents to the Company's use of Executive's image, likeness, voice, or other
characteristics in the Company's products or services. Executive releases the
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Page 4
Company from any cause of action which Executive has or may have arising out of
the use, distribution, adaptation, reproduction, broadcast, or exhibition of
such characteristics. Executive represents that Executive has obtained, for the
benefit of the Company, the same release in writing from all third parties whose
characteristics are included in the services, materials, computer programs and
other deliverables that Executive provides to the Company.
11. INJUNCTIVE RELIEF.
Executive agrees that if Executive breaches Sections 7 or 8 or 9 of this
Agreement: (i) the Company would suffer irreparable harm; (ii) it would be
difficult to determine damages, and money damages alone would be an inadequate
remedy for the injuries suffered by the Company, and (iii) if the Company seeks
injunctive relief to enforce this Agreement, Executive will waive and will not
(a) assert any defense that the Company has an adequate remedy at law with
respect to the breach, (b) require that the Company submit proof of the economic
value of any Trade Secret or Confidential Information, or (c) require the
Company to post a bond or any other security. Nothing contained in this
Agreement shall limit the Company's right to any other remedies at law or in
equity.
12. SEVERABILITY.
The provisions of this Agreement are severable. If any provision is
determined to be invalid, illegal, or unenforceable, in whole or in part, the
remaining provisions and any partially enforceable provisions shall remain in
full force and effect.
13. ATTORNEYS' FEES.
In the event of litigation relating to this Agreement, the prevailing Party
shall be entitled to recover attorneys' fees and costs of litigation in addition
to all other remedies available at law or in equity.
14. WAIVER.
The Company's failure to enforce any provision of this Agreement shall not
act as a waiver of that or any other provision. The Company's waiver of any
breach of this Agreement shall not act as a waiver of any other breach.
15. ENTIRE AGREEMENT.
This Agreement, including EXHIBIT A which is incorporated by reference,
constitutes the entire agreement between the Parties concerning the subject
matter of this Agreement. This Agreement supersedes any prior communications,
agreements or understandings, whether oral or written, between the Parties
relating to the subject matter of this Agreement. Other than terms of this
Agreement, no other representation, promise or agreement has been made with
Executive to cause Executive to sign this Agreement.
16. AMENDMENTS.
This Agreement may not be amended or modified except in writing signed by
both Parties.
17. SUCCESSORS & ASSIGNS.
This Agreement shall be assignable to, and shall inure to the benefit of,
the Company's successors and assigns, including, without limitation, successors
through merger, name change, consolidation, or sale of a majority of the
Company's stock or assets, and shall be binding upon Executive. Executive shall
not have the right to assign Executive's rights or obligations under this
Agreement. The covenants contained in subsections A, B, and C of Section 7 of
this Agreement shall survive cessation of Executive's employment with the
Company, regardless of the reason for cessation of Executive's employment and
regardless of who causes the cessation.
18. GOVERNING LAW.
The laws of the State of Georgia shall govern this Agreement. If Georgia's
conflict of law rules would apply another state's laws, the Parties agree that
Georgia law shall still govern.
19. NO STRICT CONSTRUCTION.
If there is a dispute about the language of this Agreement, the fact that
one Party drafted the Agreement shall not be used in its interpretation.
20. NOTICE.
Whenever any notice is required, it shall be given in writing addressed as
follows:
To Company:
Community Financial Holding Company, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000-0000
To Executive:
Xxx X. Xxxxxxxx
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Notice shall be deemed given and effective three (3) days after the deposit in
the U.S. mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received. Either Party may
change the address for notice by notifying the other party of such change in
accordance with this Section.
21. CONSENT TO JURISDICTION & VENUE.
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Page 5
Any claim other than claims that are required to be arbitrated under
section 26 arising out of or relating to this Agreement shall be (i) brought in
the Superior Court of Gwinnett County, Georgia, or (ii) brought in or removed to
the United States District Court for the Northern District of Georgia. Executive
consents to the personal jurisdiction of the courts identified above. Executive
waives (i) any objection to jurisdiction or venue, and (ii) any defense claiming
lack of jurisdiction or improper venue, in any action brought in such courts.
22. AFFIRMATION.
EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE HAS CAREFULLY READ THIS AGREEMENT,
THAT EXECUTIVE KNOWS AND UNDERSTANDS ITS TERMS AND CONDITIONS, AND THAT
EXECUTIVE HAS HAD THE OPPORTUNITY TO ASK THE COMPANY ANY QUESTIONS EXECUTIVE MAY
HAVE HAD PRIOR TO SIGNING THIS AGREEMENT.
23. DEFINITIONS.
Unless otherwise indicated, all capitalized terms used in this Agreement
are defined in the "Definitions" section attached as EXHIBIT A. EXHIBIT A is
hereby incorporated by reference and is included in the definition of
"Agreement."
24. BINDING ARBITRATION.
Except as provided in this section, any dispute, controversy or claim
arising out of or in connection with, or relating to, this Agreement or any
breach or alleged breach hereof, shall be submitted to and settled by binding
arbitration administered by the American Arbitration Association ("AAA") under
its Commercial Arbitration Rules (the "Rules"). Judgment upon the award rendered
by the arbitrator may be entered in any court of competent jurisdiction.
Notwithstanding the then-current Rules, the following shall apply with respect
to arbitration proceedings, unless expressly agreed to otherwise by the parties:
A. The arbitration proceeding shall be held in Gwinnett County, Georgia.
The arbitration shall be conducted by a single arbitrator selected in
accordance with the Rules.
B. The arbitrator shall be and remain at all times wholly independent and
impartial.
C. The administrative costs of the arbitration proceeding and the
arbitrator's compensation shall be allocated equally between the parties by
the AAA. The arbitrator shall award to the prevailing party, if any, as
determined by the arbitrator, all fees, expenses, and costs. "Fees,
expenses, and costs" mean all reasonable pre-award expenses of the
arbitration, including without limitation the arbitrator's fees,
administrative fees, travel expenses, out-of-pocket expenses such as
copying and telephone, witness fees, and attorneys' fees and expenses.
D. The decision of the arbitrator shall be in writing, and shall be final
and binding upon the parties.
E. It is the parties' intent that the arbitration process proceed as
quickly as possible. Accordingly, the party filing the demand for
arbitration (the claimant) shall submit a statement of its position along
with all supporting documents and all other documents that it intends to
introduce into evidence at the hearing within ten (10) business days after
the AAA notifies the parties of the appointment of the arbitrator. The
respondent shall submit a statement of its position along with all
supporting documents and all other documents that it intends to introduce
into evidence at the hearing within ten (10) business days after receiving
the claimant's statement of position and documents. If the respondent
includes a counterclaim against the claimant, the claimant shall submit a
statement of its position on that counterclaim, along with all supporting
documents and all other documents that it intends to introduce into
evidence at the hearing within ten (10) business days after receiving the
claimant's statement of position and documents. Each party shall have the
right to take one deposition of the other. No further discovery shall be
allowed. A party will not be allowed to introduce documents into evidence
at the hearing unless they were provided to the other party with its
statement of position, as described above. In order to be considered timely
submitted, the submission must be delivered by hand delivery on the date it
is due, or dispatched via a recognized overnight delivery service the day
before the submission is due, in such manner that it is reasonable to
expect that delivery will be made on the due date. All such submissions
shall simultaneously be filed with the arbitrator.
F. The arbitration hearing shall be held within twenty (20) business days
after the date the last statement of position is submitted or was due to be
submitted. The
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Page 6
arbitrator shall render his or her award within ten (10) business days
after conclusion of the hearing. The arbitrator shall agree to comply with
this schedule before accepting appointment. However, the time limits set
forth in paragraphs E and G of this section 26 may be extended by agreement
of the parties or by the arbitrator if the arbitrator deems such extension
to be necessary.
G. The arbitrator shall not have the authority to award punitive damages.
H. Any claim or action must be brought within one (1) year after the cause
of action accrues.
Notwithstanding the foregoing provisions of this Section, the parties
hereto acknowledge and agree that the Company shall have the right to pursue any
claim for specific performance, injunction, or other equitable relief in a court
of competent jurisdiction (before or during the pendency of any arbitration, or
otherwise) in the event of any alleged breach of any provision in Sections 7, 8
or 9 of this Agreement.
25. FDIC COMPLIANCE LIMITATION.
If the amounts to be paid to the Executive under this Agreement would cause
the Executive to receive a payment in violation of 12 CFR Section 359 (or the
corresponding provisions of any future regulations promulgated under Section
18(k) of the Federal Deposit Insurance Act (12 U.S.C. Section 1828(k))), then,
after seeking the approval of the FDIC to nonetheless make payment of such
amounts, if such approval is not forthcoming, such amounts shall be limited so
that no violation of such regulations will occur.
26. GOLDEN PARACHUTE LIMITATION.
If amounts to be paid to the Executive under this Agreement would somehow
cause the Executive to be subject to the excise tax imposed by Code Section 4999
on golden parachute payments, then, to the extent that the total "parachute
payments" (as defined in Code Section 280G(b)(2)) which would be made to the
Executive are greater than three (3) times the Executive's "base amount" (as
defined in Code Section 280G(b)(3)), but are less than the Golden Parachute
Upper Limitation, then amounts to be paid under this Agreement which would
constitute "parachute payments" shall be reduced to the extent necessary so that
the total "parachute payments" which would be paid to the Executive shall not
exceed three (3) times the Executive's "base amount." It is the intent of the
foregoing provision that if the Executive would be economically better off, on
an after-tax (federal and state income and federal excise) basis, by receiving
less under this Agreement because of the application of the golden parachute
excise tax under Code Section 4999 to amounts that the Executive receives, then
the Executive's payments hereunder shall be reduced so that the Code Section
4999 excise tax shall not apply. The Company shall have complete discretion to
appoint competent tax experts to make the calculations required by this Section,
and the calculations made by such experts shall be final and binding upon both
the Company and the Executive. Any reductions required under this Section shall
come first from cash payments required hereunder
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of this 22 day of Jan., 2003.
COMPANY: EXECUTIVE:
COMMUNITY FINANCIAL HOLDING COMPANY, INC.
By: /s/ Xxxxxxxx X. Xxxxxx /s/ Xxx X. Xxxxxxxx
------------------------------- ------------------------
XXX X. XXXXXXXX
Its:/s/ Xxxxxx Xxxxxx, Chairman
-------------------------------
Attest:/s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxxx X. Xxxxxx,
Chairman, Compensation Committee
Executive Employment Agreement
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EXHIBIT A
DEFINITIONS
A. "AVERAGE MONTHLY BASE SALARY" shall mean, as of a date of determination,
the average monthly base salary paid to the Executive by the Company during the
five (5) year period (or, if the Executive was not employed by the Company for
all of such period, such shorter period during which the Executive was so
employed) ending as of such date of determination.
B. "BOARD" shall mean the Board of Directors of Community Financial Holding
Company, Inc.
C. "BUSINESS" shall mean the business of commercial banking.
D. "CAUSE" shall exist if the Executive (1) materially breaches any provision
of this Agreement and such breach is not cured by the Executive within thirty
(30) days after receipt by the Executive of written notice from the Company of
such breach, (2) engages in gross negligence or willful misconduct, fraud,
dishonesty, or malfeasance that results in material injury to the Company and
has not been cured by the Executive within thirty (30) days after receipt by the
Executive of written notice from the Company of such conduct, (3) engages in
willful, intentional, or grossly negligent failure to (A) perform the
Executive's duties under this Agreement, (B) follow the direction (consistent
with the Executive's duties) of the Chief Executive Officer or the Board, or (C)
to follow the policies, procedures, and rules of the Company; provided, however,
that the Company shall first give the Executive written notice setting forth
with specificity the reasons that the Company believes the Executive is engaging
in a failure under this clause (3), and shall give the Executive thirty (30)
days to cure such failure, or (4) is convicted of, or enters into a plea of
guilty or no contest to, (A) a felony or (B) a crime involving moral turpitude
that adversely affects the Company's reputation in a material way.
E. CHANGE OF CONTROL" means any of the following: (a) any transaction or
series of transactions pursuant to which the Company sells, transfers, leases,
exchanges or disposes of substantially all (i.e., at least eighty-five percent
(85%)) of its assets for cash or property, or for a combination of cash and
property, or for other consideration; (b) any transaction pursuant to which
persons who are not current shareholders of the Company acquire by merger,
consolidation, reorganization, division or other business combination or
transaction, or by a purchase of an interest in the Company so that after such
transaction, the shareholders of the Company immediately prior to such
transaction no longer have a controlling (i.e., 50% or more) voting interest in
the Company; (c) any transaction whereby there is an acquisition of twenty-five
percent (25%) or more (or a lesser percentage if the Georgia Department of
Banking and Finance, the FDIC or the Federal Reserve Bank have made a
determination that such acquisition constitutes or will constitute control of
the Company) of the voting securities of the Company by any person or persons
within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as
amended; (d) the individuals who, as of the date of this Agreement, were members
of the Board (the "Incumbent Board") cease for any reason to constitute at least
a majority of the Board; provided, however, that if either the election of any
new director or the nomination for election of any new director by the Company's
stockholders was approved by a vote of at least a majority of the Incumbent
Board, such new director shall be considered as a member of the Incumbent Board;
or (e) any transaction if the Executive and the Company agree in writing prior
to such transaction that such transaction shall constitute a Change of Control
for purposes of this Agreement. However, notwithstanding the foregoing, the
Executive and the Company may agree in writing prior to the occurrence of any of
the foregoing events that such event shall not constitute a Change of Control
for purposes of this Agreement.
F. "COMPANY" means Community Financial Holding Company, Inc., its parents,
subsidiaries, affiliates and all related companies, as well as their respective
officers, directors, shareholders, employees, agents and any other
representatives.
G. "COMPANY EXECUTIVE" means any person who (i) is employed by the Company at
the time Executive's employment with the Company ends, (ii) was employed by the
Company during the last year of Executive's employment with the Company (or
during Executive's employment if employed less than a year), or (iii) is
employed by the Company during the Restricted Period.
H. "CONFIDENTIAL INFORMATION" means (a) information of the Company, to the
extent not considered a Trade Secret under applicable law, that (i) relates to
the business of the Company, (ii) possesses an element of value to the Company,
(iii) is not generally known to the Company's
competitors, and (iv) would damage the Company if disclosed, and (b) information
of any third party provided to the Company which the Company is obligated to
treat as confidential. Confidential Information includes, but is not limited to,
(i) future business plans, (ii) the composition, description, schematic or
design of products, future products or equipment of the Company, (iii)
communication systems, audio systems, system designs and related documentation,
(iv) advertising or marketing plans, (v) information regarding independent
contractors, employees, clients and customers of the Company, and (vi)
information concerning the Company's financial structure and methods and
procedures of operation. Confidential Information shall not include any
information that (i) is or becomes generally available to the public other than
as a result of an unauthorized disclosure, (ii) has been independently developed
and disclosed by others without violating this Agreement or the legal rights of
any party, or (iii) otherwise enters the public domain through lawful means.
I. "CONTACT" means any interaction between Executive and a Customer which (i)
takes place in an effort to establish, maintain, and/or further a business
relationship on behalf of the Company and (ii) occurs during the last year of
Executive's employment with the Company (or during Executive's employment if
employed less than a year).
J. "CUSTOMER" means any person or entity to whom the Company has sold its
products or services, or solicited to sell its products or services.
K. "DISABILITY" means a physical or mental impairment (a physiological
disorder or condition, cosmetic disfigurement, anatomical loss affecting a major
body system and any mental or psychological disorder) that substantially limits
one or more major life activities.
L. "GOLDEN PARACHUTE UPPER LIMITATION" means , with respect to the Executive,
that dollar amount of "parachute payments" of the Executive exceeding three
times the Executive's "base amount" (as defined in Code Section 280G(b)(3)),
given the Executive's tax situation, which would, after the application of all
such taxes, yield to the Executive the same after-tax amount as if the
Executive's "parachute payments" were exactly $0.01 less than three times the
Executive's "base amount" (as defined in Code Section 280G(b)(3)), or, in other
words, that dollar amount of "parachute payments" of the Executive exceeding
three times the Executive's "base amount" (as defined in Code Section
280G(b)(3)) at which the negative impact of the additional golden parachute
excise tax is exactly offset by the additional compensation paid to the
Executive. Mathematically, the Golden Parachute Upper Limitation should equal
the "base amount" (as defined in Code Section 280G(b)(3)) of the Executive
multiplied by the following fraction, if the marginal rates of the Executive are
constant:
(3 - 3F - 3S - E)/(1 - F - S - E)
where:
"F" is the highest marginal rate of federal income taxation applicable to the
Executive's "parachute payments" under this Agreement;
"S" is the highest marginal rate of state income taxation applicable to the
Executive's "parachute payments" under this Agreement; and
"E" is the golden parachute excise tax rate applicable to the Executive's
"parachute payments" under this Agreement.
M. "GOOD REASON" shall exist if the Company, without Executive's written
consent, (i) takes any action which is inconsistent with, or results in the
reduction of, Executive's then current title, duties, or responsibilities, (ii)
requires Executive to report to any person other than the Chief Executive
Officer and the Board, (iii) reduces Executive's then current Base Salary, (iv)
reduces the benefits to which Executive is entitled on the Effective Date,
unless a similar reduction is made for other senior executive employees; (v)
commits a breach of this Agreement which is not remedied by the Company within
thirty (30) days of receiving notice by Executive of such breach; (vi) requires
Executive to report to work more than five (5) miles from the location of the
Company's offices on the Effective Date, or (vii) any successor or assign of the
Company fails to assume and perform the Company's obligations under this
Agreement.
N. "LICENSED MATERIALS" means any materials that Executive utilizes for the
benefit of the Company, or deliver to the Company or the Company's customers,
which (i) do not constitute Work Product, (ii) are created by Executive or of
which Executive is otherwise in lawful possession, and (iii) Executive may
lawfully utilize for the benefit of, or distribute to, the Company or the
Company's customers.
O. "RESTRICTED PERIOD" means the time period during Executive's employment
with the Company, and for one (1) year after Executive's employment with the
Company ends.
P. "TRADE SECRETS" means information of the Company, and its licensors,
suppliers, clients and customers, without regard to form, including, but not
limited to, technical or non-technical data, a formula, a pattern, a
compilation, a program, a
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device, a method, a technique, a drawing, a process, financial data, financial
plans, product plans, or a list of actual or potential customers or suppliers
which is not commonly known by or available to the public and which information
(i) 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 (ii) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
Q. "WORK PRODUCT" means (a) any data, databases, materials, documentation,
computer programs, inventions (whether or not patentable), designs, and/or works
of authorship, including but not limited to, discoveries, ideas, concepts,
properties, formulas, compositions, methods, programs, procedures, systems,
techniques, products, improvements, innovations, writings, pictures, audio,
video, images of Executive, and artistic works, and (b) any subject matter
protected under patent, copyright, proprietary database, trademark, trade
secret, rights of publicity, confidential information, or other property rights,
including all worldwide rights therein, that is or was conceived, created or
developed in whole or in part by Executive while employed by the Company and
that either (i) is created within the scope of Executive's employment, (ii) is
based on, results from, or is suggested by any work performed within the scope
of Executive's employment and is directly or indirectly related to the business
of the Company or a line of business that the Company may reasonably be
interested in pursuing, (iii) has been or will be paid for by the Company, or
(iv) was created or improved in whole or in part by using the Company's time,
resources, data, facilities, or equipment.
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