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Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of the
1st day of January , 1999, between XXXXX X. XXXXX ("Executive"), and COMMUNITY
BANK OF GEORGIA, a state-chartered Georgia banking institution whose principal
place of business is located at 0000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx,
("Employer").
RECITALS
WHEREAS, the Board of Directors of the Employer recognizing the
experience and knowledge of the Executive in the banking industry, determines
that it is in the best interests of the Employer to arrange terms of employment
for Executive so as to induce Executive to remain in his capacity with the
Employer for the term as set forth in this Employment Agreement (the
"Agreement"); and
WHEREAS, Executive is willing to provide services to Employer in
accordance with the terms and conditions hereinafter set forth.
THEREFORE, in the consideration of the mutual promises and agreements
in these premises and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, it is agreed as
follows:
SECTION 1. EMPLOYMENT
a. Employer employs Executive on the terms and conditions hereafter
stated as Employer's Vice President and Chief Financial Officer to perform such
services and duties as the Board of Directors may, from time to time, designate
during the term hereof. Executive will also serve as Chief Financial Officer of
Georgia Bancshares, Inc., ("Bancshares") Tucker, Georgia, the Employer's parent
bank holding company. Subject to the terms and conditions hereof, Executive will
perform such duties and exercise such authority as are customarily performed and
exercised by persons holding such office, subject to the direction of the Board
of Directors.
b. Executive accepts such employment and shall devote his full time,
attention, and best efforts to the diligent performance of his duties herein
specified.
SECTION 2. TERM OF EMPLOYMENT.
a. Executive's employment under this Agreement shall commence on
January 1, 1999 and continue for a period of twelve calendar months concluding
on December 31, 1999.
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b. Executive's employment pursuant to this Agreement shall be
terminated by the first to occur of any of the following:
i) The death of the Executive;
ii) The Complete Disability of Executive. "Complete
Disability" as used herein shall mean the inability of Executive, due to
illness, accident, or any other physical or mental incapacity, to completely
fulfill his obligations hereunder for an aggregate of ninety (90) days within
any period of 180 consecutive days during the term hereof;
iii) The discharge of Executive by Employer for cause.
(1) "Cause" as used herein shall mean: dishonesty;
theft; conviction of a crime (other than minor traffic violations)
which is either a felony or a misdemeanor involving moral turpitude;
unethical business conduct; gross or repeated negligence in carrying
out Executive's duties. In all instances other than dishonesty, theft
or conviction of a crime, written notice of said activity, negligence
or violation shall be provided by Employer to Executive along with a
reasonable period of time, which shall be not less than ninety (90)
days, in which to correct the deficiency.
(2) Discharge for "Cause" shall require a
two-thirds majority vote of the entire Board of Directors of Employer.
iv) Thirty (30) days after Executive has given written
notice to Employer of his intent to terminate his employment hereunder.
c. Termination of Executive's employment shall constitute his
resignation as an employee of Employer (and as an executive officer of
Bancshares) effective upon acceptance by Employer of that tender.
SECTION 3. COMPENSATION.
For all services which Executive may render to Employer during the term hereof
Employer shall pay to Executive, subject to such deductions as may be required
by law, as set out below:
a. Annual Base Salary. Executive shall receive a salary based
On an annual rate of $80,000, payable in equal monthly installments.
b. Performance Bonus. In addition to the Executive's annual base
salary, the Employer shall pay to Executive a performance bonus conditioned upon
the Employer attaining certain performance criteria measured as of December 31,
1999.
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The right to receive an annual performance bonus is based upon meeting
or exceeding the following three (3) established goals with respect to (i)
return on average assets ("ROAA"), (ii) return on average equity ("XXX"), and
(iii) average past due loans.
i) Return on Average Assets of 1.25% or greater;
ii) Return on Equity of 14.0% or greater; and
iii) Average past due loans not to exceed 1.25% of total loans
outstanding.
Notwithstanding the foregoing, no performance bonus shall be earned in
any year in which the Bank's composite C-A-M-E-L-S rating is less than "2".
x. Xxxxxxxxx Compensation. If the Executive's employment is terminated
during the term of this Agreement for reasons other than those stated in
paragraph 2(b)(iii). Employer shall pay Executive as Severance Compensation,
without set off, reduction, or diminution for other compensation which Executive
may receive from sources other than Employer, a sum equal to the gross monthly
compensation which would then be payable to Executive under the terms and
conditions of this Agreement without reduction for taxes except as required by
law for twelve (12) consecutive months. ("Severance Compensation"). Said
Severance Compensation shall be payable on the first day of each month following
Executive's termination of employment. Notwithstanding the foregoing, if
mutually agreed between Employer and Executive, the Severance Compensation may
be paid in one lump sum or other equal payments. Employer shall maintain
Executive's full medical and disability benefits for Executive and his family at
no expense to Executive for twelve (12) months subsequent to said termination or
the remainder of the term of this Agreement whichever is greater. Thereafter,
Executive shall be eligible to secure such medical and dental benefits as may be
available pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA") at Executive's expense. Notwithstanding the foregoing, if Executive
tenders his resignation after ninety (90) days from the commencement of this
Agreement, Executive shall be paid Severance Compensation in the amount of six
(6) months compensation.
SECTION 4. OTHER BENEFITS
During the term of Executive's employment hereinafter, on and after the
effective dates, as noted, Employer shall furnish to Executive the following
benefits.
a. A group health and hospitalization and dental insurance policy
covering the Executive and immediate family.
b. A fully paid vacation of fifteen (15) working days per year for the
duration and any continuance of this contract. Time for such vacation/vacations
shall be determined solely by the Executive provided Executive shall give the
President and Chief Financial Officer of Employer, reasonable prior notice of
the Executive's scheduled vacation days.
c. All reasonable business expenses incurred for the attendance of the
Executive and his spouse at the annual meeting of the Community Bankers
Association of Georgia's Leadership Division Conference.
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SECTION 5. POST TERMINATION COVENANTS.
a. Executive hereby expressly covenants and agrees that during the term
of his employment whether or not pursuant to this Agreement and for a period of
twelve (12) months following the termination of his employment with Employer, if
said termination is pursuant to Section 2(b)(iv), Executive shall not engage in
rendering or providing executive managerial services as chief financial officer
or serve as chief financial officer of or to any National Bank or State Bank
Institution located within an area of ten (10) miles of Community Bank of
Georgia's main office or its branches without the express permission of the
Employer. This covenant shall not be effective against Executive in the event of
termination of Executive for any other reason, actual, or constructive as
provided herein below.
SECTION 6. CONFLICTS OF INTEREST.
Executive shall not, while employed by Employer, accept employment with any
other individual, corporation, partnership, governmental authority or other
entity, or engage in any other venture for profit which the Employer's Board of
Directors may consider by majority vote of all of the directors then serving
with Executive abstaining to be in conflict with the Employer's best interest or
to be in competition with the performance of his duties hereunder. This
restriction does not preclude Executive from owning or being involved in real
estate or other investments, so long as such does not create a conflict of
interest on the part of the Executive as to his duties and obligations to
Employer as set forth herein. In addition, the Executive may be a Board member
of companies not in competition with the Employer. Notwithstanding the
foregoing, Executive may not be involved in any of these activities without
first making a full disclosure to the Employer of the details of each proposed
endeavor.
SECTION 7. WAIVER OF PROVISIONS.
Failure by any of the parties hereto to insist, in one or more instances, on
performance by the other in strict accordance with the terms and conditions of
this Agreement shall not be deemed a waiver or relinquishment of any right
granted hereunder or of the obligation of future performance of any such term or
condition or any other term or condition of this Agreement, unless such waiver
is contained in a writing signed by or on behalf of all the parties.
SECTION 8. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Georgia. If for any reason any provision of this
Agreement shall be held by a court of competent jurisdiction to be void or
unenforceable, the same shall not affect the remaining provisions hereof.
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SECTION 9. MODIFICATION AND AMENDMENT.
This Agreement contains the sole and entire agreement among the parties hereto
and supersedes all prior discussions and agreements among the parties, and any
such prior agreements shall, from and after the date hereof, be null and void.
This Agreement shall not be modified or amended except by an instrument in
writing signed by or on behalf of all parties hereto.
SECTION 10. NOTICE AND MAILING THEREOF.
Whenever in this Agreement notice is required to be given to either of the
parties hereto, such notice shall be effective only if delivered to the parties
as follows by hand delivery or first class United States Mail:
If to Employer: President and Chief Executive Officer
Community Bank of Georgia
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
If to Executive: Xxxxx X. Xxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxx, Xxxxxxx 00000
SECTION 11. RECITALS, COUNTERPARTS AND HEADINGS.
The Recitals appearing above are incorporated into this Agreement as fully and
completely as if set forth expressly herein and are an integral part of this
Agreement. This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument. The headings set out herein are for
convenience of reference and shall not be deemed a part of this Agreement.
SECTION 12. SUCCESSORS.
This Agreement shall inure to the benefit of and be binding upon the Employer,
its successors and assigns and upon the Executive, and his heirs and personal
representatives. Neither this Agreement nor performance hereunder may be
assigned by Executive.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered as of the day and year first above written.
EXECUTIVE: EMPLOYER:
COMMUNITY BANK OF GEORGIA
/s/ Xxxxx X. Xxxxx By: /s/ Xxx X. Xxxxxx
Xxxxx X. Xxxxx Xxx X. Xxxxxx
President and Chief Executive
Officer
ATTEST:
By: /s/ Xxxxx X. Xxxxxxxxx
Chairman, Compensation Committee
