EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (the “Agreement”) is hereby entered into as of the 21st day
of March 2006 (the “Effective Date”), between SEASONS BANCSHARES, INC., a
Georgia banking corporation (and with CADENCE BANK as the surviving entity
in
the merger described below)(the “Bank”) and XXXXX X. XXXXXX (the “Employee”).
WHEREAS,
the Bank is engaged in the business of commercial banking;
WHEREAS,
the Employee is experienced in commercial banking;
WHEREAS,
the Bank desires to employ the Employee and the Employee desires to accept
employment on the terms and conditions set forth herein; and
WHEREAS,
concurrently with the execution of this Agreement, Seasons Bancshares, Inc.
entered into a merger agreement with NBC Capital Corporation that provides
for
the merger of Seasons Bancshares, Inc. into Cadence Bank and the parties hereby
acknowledge that without the employment and agreement by Employee to not compete
with Cadence Bank as set forth herein such merger agreement would not have
been
entered into by the parties.
NOW
THEREFORE, in consideration of the mutual promises set forth herein, and
intending to be legally bound, the parties hereby agree as follows:
1.
EMPLOYMENT AND DUTIES
1.1 Employment.
The Bank agrees to employ the Employee, and the Employee agrees to be employed
by the Bank, for the Employment Term (as defined herein), subject to the terms
and conditions set forth herein.
1.2 Office.
The Employee shall have the title of President of the Bank’s Blairsville,
Georgia, operations, or any other title as shall be determined by the Board
of
Directors or its designee (“Board”). The Employee shall report generally to the
President and Chief Operating Officer of the Bank or such other persons as
designated by the Board.
1.3 Duties.
As President of the Bank’s Blairsville, Georgia, operations, Employee agrees to
perform diligently and to the best of his ability the duties and services
appertaining to any such office and such other duties as may be assigned to
him
from time to time by the Board. The Employee’s duties and responsibilities shall
include such duties as are the type and nature normally assigned to similar
senior officers of a financial institution of the size, type and stature of
the
Bank. Specifically, the Employee shall directly manage the daily business and
financial activities of the Bank in Blairsville, Georgia, and implement
strategies to achieve the overall business goals of the Bank.
1.4 Extent
of
Services. “The Employee shall devote the Employee’s entire time and efforts to
the Bank’s business and affairs, and shall not engage in any other business
activity for remuneration or compensation without the Bank’s prior written
consent. This restriction is not intended to apply to the Employee’s supervision
of any investments which may currently exist or be entered into, so long as
these investments do not interfere with the Employee’s services to be rendered
or cause a breach of the restrictions set forth in Sections 4 and 5 of this
Agreement.
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2.
TERM
AND TERMINATION OF EMPLOYMENT
2.1 Term.
Subject to the terms of Sections 2.2, the initial term shall commence on the
Effective Date of this Agreement and shall continue for two year (“Initial
Term”), and thereafter, at the election of the Bank and the Employee, renew for
successive one year terms (such Initial Term and any renewal thereof being
referred to herein as the “Employment Term”) provided, however, either party may
terminate this Agreement, with or without cause as defined herein, at the
expiration of the Initial Term or anyone year renewal term thereafter, upon
written notice given to the other party at least ninety (90) days prior to
the
expiration of any such initial or renewal term hereunder. In connection with
the
termination by the Bank or Employee at the expiration of the initial term or
renewal term, the Bank hereby agrees to pay to Employee three months salary
in
addition to such notice period and Employee hereby agrees to continue to be
bound and subject to Sections 4 and 5 of this Agreement for one year following
the date of such separation. In the event of the resignation of Employee after
the first year of the Initial Term (although not contractually permitted),
the
Bank hereby agrees to pay Employee three months salary on a monthly basis after
the effective date of such resignation and the Employee hereby agrees to be
bound and subject to the Sections 4 and 5 of this Agreement.
2.2 Termination
by the Bank. Notwithstanding the provisions of Section 2.1, the Bank shall
have
the right to terminate the employment of Employee under this Agreement prior
to
the end of the Employment Term for any of the following reasons and subject
to
the following conditions:
2.2.1
Termination
for Cause. The Bank shall have the right to terminate this Agreement at any
time
for “cause.” The term “cause” shall mean:
(a) A
material breach of the terms of this Agreement by the Employee, including
without limitation, failure by the Employee to perform his duties and
responsibilities in the manner and to the extent required under this Agreement
and/or failure to abide by the covenants set forth in Sections 4 and 5 herein,
which remains uncured after the expiration of thirty (30) days following the
delivery of written notice of such breach to the Employee by the Bank. Such
notice shall (i) specifically identify the duties that the Board believes the
Employee has failed to perform and (ii) state the facts upon which the Board
made such determination;
(b) Conduct
by the Employee that amounts to fraud, dishonesty or willful misconduct;
(c) Arrest
for, charged in relation to (by criminal information, indictment or otherwise),
or conviction of the Employee during the term of this Agreement of a felony;
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(d) Conduct
by the Employee that amounts to gross and willful insubordination or inattention
to his duties and responsibilities hereunder; or
(e) Conduct
by the Employee that results in removal from his position as an officer or
executive of the Bank pursuant to a written order by any regulatory agency
with
authority or jurisdiction over the Bank.
The
Bank
reserves the right to put Employee on paid or unpaid administrative leave
pending an investigation into allegations of the conduct described above.
Otherwise, termination of the Employee’s employment under this Section 2.2.1
shall be deemed to occur immediately upon the Bank giving Employee written
notice of termination.
2.2.2
Termination
Without Cause. The Bank is granted an option to terminate the Employee’s
employment, without cause, upon 30 days prior written notice to the Employee.
In
the event of a termination under this Section 2.2.2, the Bank shall be required
to pay the Employee a severance payment of one year’s salary as defined in
Section 3.1 herein and Employee continues to be bound and subject to Sections
4
and 5 of this Agreement.
2.3 Termination
by Mutual Agreement. This Agreement can be terminated at any time upon mutual,
written agreement of the parties.
2.4 Termination
by Death. This Agreement will automatically terminate upon the death of the
Employee.
2.5 Change
of
Control. A “Change of Control” means any of the following events:
(a) the
acquisition by any person or persons acting in concert of the then outstanding
voting securities of the Bank or its parent bank or holding company (“Parent
Bank”), if, after the transaction, the acquiring person (or persons) owns,
controls or holds with power to vote thirty-five percent (35%) or more of any
class of voting securities of the Bank or Parent Bank, as the case may be;
or
(b) a
reorganization, merger or consolidation, with respect to which persons who
were
the shareholders of the Bank or Parent Bank immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own
more
than fifty percent (50%) of the combined voting power entitled to vote in the
election of directors of the reorganized, merged or consolidated company’s then
outstanding voting securities; or
(c) the
sale,
transfer or assignment of all or substantially all of the assets of the Parent
Bank, Bank and its subsidiaries to any third party; and
(d) Employee
is terminated by Bank within one year of such Change in Control or Employee’s
responsibilities and compensation are materially diminished as a result of
the
foregoing events described in this Section. Upon a Change in Control, the
Employee shall be paid by the Bank in lump sum the Employee’s annual salary and
Employee will continue to be bound and subject to Sections 4 and 5 of this
Agreement.
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2.6 Effect
of
Termination. Upon termination of the Employee’s employment hereunder for any
reason, the Bank shall have no further obligations to the Employee or the
Employee’s estate with respect to this Agreement, except for the payment of
salary and bonus amounts, if any, accrued pursuant to Article 3 hereof and
unpaid as of the effective date of the termination of employment, as applicable.
Nothing contained herein shall limit or impinge upon any other rights or
remedies of the Bank or the Employee under any other agreement or plan to which
the Employee is a party or of which the Employee is a beneficiary.
3.
COMPENSATION AND BENEFITS
3.1 Salary.
The Bank shall pay to the Employee as basic compensation the sum of $140,000.00
per annum (“Salary”), payable at those intervals as the Bank shall pay other
similarly situated executives.
3.2 Car
Allowance. Beginning as of the Effective Date, the Bank will provide the
Employee with an automobile allowance of $750.00 per month.
3.3 Club
Membership. Beginning on the Effective Date, the Bank agrees to reimburse the
Employee for the 75% dues associated with membership at a club as selected
by
the Employee and approved by the Bank in accordance with the Bank’s club
membership policy for similarly situated senior managers, provided, however,
that the Employee shall, as a condition of reimbursement, submit verification
of
the nature and amount of such expenses in accordance with reimbursement policies
from time to time adopted by the Bank and in sufficient detail to comply with
the rules and regulations promulgated by the Internal Revenue Service.
3.4 Fringe
Benefits. The Employee shall receive the standard package of fringe benefits
as
the Bank provides to other similarly situated executives. Fringe benefits
intended to be included in this standard benefit package include but are not
limited to medical and life insurance, vacations, and sick leave. All such
benefits shall be awarded and administered in accordance with the Bank’s
standard policies and practices.
3.5 Bonus
Program. The Bank agrees to the following:
3.5.1 2006
Bonus Program. The Employee may be eligible to receive a bonus of $10,000.00
if
the Bank achieves $385,000 of net operating income, excluding merger related
expenses, as of September 30, 2006. Further, the Employee may be eligible to
receive an additional $10,000.00 ninety (90) days after the successful
integration of the Bank in the sole discretion of the Board.
3.5.2 2007
Bonus Program. Starting in 2007 and extending throughout the term and any
extensions of this Agreement, the Employee will become eligible to participate
in the Senior Management Bonus Plan wherein he can earn up to 25% of his Salary
based on applicable performance measurements.
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3.6 Equity
Incentives. The Bank shall make the Employee a participant in its proposed
incentive compensation plan, in which it is proposed that other executives
may
also participate. The terms of this plan will be described in the Long-Term
Incentive Compensation Plan (“Incentive Plan”). In the event that the Employee’s
employment terminates, for any reason, no rights under the Incentive Plan shall
vest after the termination, and no rights vested prior to the termination shall
be adversely affected as a result of the termination.
4.
BANK INFORMATION
4.1 Bank
Information. “Bank Information” includes “confidential information” and “trade
secrets.” “Confidential information” means data and information relating to the
business of the Bank (which does not rise to the status of a trade secret,
as
defined herein) which is or has been disclosed to the Employee or of which
the
Employee became aware as a consequence of or through the Employee’s relationship
with the Bank and which has value to the Bank and is not generally known to
its
competitors. Confidential Information shall not include any data or information
that has been voluntarily disclosed to the public by the Bank (except where
such
public disclosure has been made the Employee without authorization) or that
has
been independently developed and disclosed by others, or that otherwise enters
the public domain through lawful means. “Trade secrets” means Bank information
including, but not limited to technical or nontechnical data, strategic plans,
business models, collateral data management systems, compilations, programs,
devices, methods, techniques, drawings, processes, financial data, financial
plans, product plans or lists of actual or potential customers or suppliers
which (a) derives economic value, actual or potential, from not being generally
known to, and not being readily ascertained by proper means by other persons
who
can obtain economic value from its disclosure or use; and (b) is the subject
of
efforts that are reasonable under the circumstances to maintain its secrecy.
4.1.1
Ownership
of Bank Information. All Bank Information received or developed by the Employee
while employed by the Bank will remain the sole and exclusive property of the
Bank.
4.1.2
Obligations
of the Employee. The Employee agrees:
(a) to
hold
Bank Information in the strictest confidence;
(b) not
to
use, duplicate, reproduce, distribute, disclose or otherwise disseminate Bank
Information or any physical embodiments of Bank Information; and
(c) in
any
event, not to take any action causing or fail to take any action necessary
in
order to prevent any Bank Information from losing its character or ceasing
to
qualify as Bank Information or a Trade Secret.
In
the
event that the Employee is required by law to disclose any Bank Information,
the
Employee will not make such disclosure unless (and then only to the extent
that)
the Employee has been advised by independent legal counsel that such disclosure
is required by law and then only after prior written notice is given to the
Bank
when the Employee becomes aware that such disclosure has been requested and
is
required by law. This Section 4 shall survive for a period of twelve (12) months
following termination of this Agreement for any reason with respect to
Confidential Information, and shall survive termination of this Agreement for
any reason for so long as is permitted by applicable law, with respect to Trade
Secrets.
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4.1.3 Delivery
upon Request or Termination. Upon request by the Bank, and in any event upon
termination of his employment with the Bank, the Employee will promptly deliver
to the Bank all property belonging to the Bank, including without limitation,
all Bank Information then in his possession or control.
5.
NON-COMPETE PROVISIONS
5.1 Non-Competition.
The Employee agrees that during the Employment Term and for a period of twelve
(12) months following the termination of his employment hereunder, he will
not
(except on behalf of or with the prior written consent of the Bank), within
the
geographic area within the boundaries of Xxxxxx, Union, Xxxxxx counties in
the
State of Georgia, Clay and Cherokee counties in the State of North Carolina
and
Polk county in Tennessee (the “Area”), either directly or indirectly, on his own
behalf or in the service or on behalf of others, as an executive employee or
in
any other capacity which involves duties and responsibilities similar to those
undertaken for the Bank (including as an organizer or proposed executive officer
of a new financial institution), engage in any business which is the same as
or
essentially the same as the business of the Bank, which is commercial banking
(“Business of the Bank”). It is the express intent of the parties that the Area
as defined herein is the area where the Employee performs services on behalf
of
the Bank under this Agreement as of the Effective Date.
5.2 Non-Solicitation
of Customers. The Employee agrees that during the Employment Term and for a
period of twelve (12) months following the termination of his employment
hereunder, he will not (except on behalf of or with the prior written consent
of
the Bank), within the Area, on his own behalf or in the service or on behalf
of
others, solicit, divert or appropriate or attempt to solicit, divert or
appropriate, any business from any of the Bank’s customers, including actively
sought prospective customers, with whom the Employee has or had material contact
during the last two (2) years of his employment, for purposes of providing
products or services that are competitive with the Business of the Bank.
5.3 Non-Solicitation
of Employees. The Employee agrees that during the Employment Term and for a
period of twelve (12) months following the termination of his employment
hereunder, he will not, within the Area, on his own behalf or in the service
or
on behalf of others, solicit, recruit or hire away or attempt to solicit,
recruit or hire away, any employee of the Bank or its affiliates to another
person or entity providing products or services that are competitive with the
Business of the Bank, whether or not (a) such employee is a full-time employee
or a temporary employee of the Bank or its affiliates, (b) such employment
is
pursuant to a written agreement, and (c) such employment is for a determined
period or is at-will.
5.4 Remedy
for Breach. The Employee acknowledges that the covenants contained in Sections
4
and 5 of this Agreement (the “Restrictive Covenants”) are of the essence of this
Agreement; that each of the covenants is reasonable and necessary to protect
the
business, interests, and properties of the Bank; and that a violation of any
of
the provisions of this Agreement, especially the Restrictive Covenants, will
cause irreparable damage and loss to the Bank, its successors and assigns.
Therefore, the Employee agrees and consents that, in addition to all the
remedies provided by law or in equity, any violation shall entitle the Bank
or
its successors and assigns to an immediate temporary restraining order and
temporary and permanent injunctions to prevent a breach or contemplated breach
of any of the covenants. The Bank and the Employee agree that all remedies
available to the Bank or the Employee, as applicable, shall be cumulative.
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5.5 Separability.
The Restrictive Covenants set forth in this Agreement are independent of any
other covenant or provision of this Agreement, and the existence of any claim
or
cause of action against the Bank or any company affiliated with or related
to
the Bank, whether predicated on this Agreement, or any other agreement, or
otherwise, shall not constitute a defense to the enforcement of these covenants.
Further, if any provision of this Agreement is ruled invalid or unenforceable
by
a court of competent jurisdiction because of a conflict between the provision
and any applicable law or public policy, the provision shall be redrawn to
make
the provision consistent with any valid and enforceable under the law or public
policy.
6.
MISCELLANEOUS
6.1 Notices.
All notices, requests, demands, and other communications that are required
or
may be given under this Agreement shall be in writing and shall be deemed to
have been duly given if delivered personally or sent by registered or certified
mail, return receipt requested, postage prepaid:
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(a)
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To
the Bank:
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[Address]
|
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With
information copy to:
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Xxxxx
and Xxxxx LLP.
|
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4400
One Houston Center
|
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0000
XxXxxxxx Xx.
|
|
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Xxxxxxx,
XX 00000
|
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Attn:
Xxxx Xxxxx
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(b)
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To
the Employee:
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[Employee’s
Address]
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With
information copy to:
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[Attorney’s
Address]
|
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6.2 Arbitration.
Any dispute, controversy or claim arising out of or relating to this Agreement,
including without limitation the Employee’s employment or the termination
thereof shall be resolved exclusively by binding arbitration in Starkville,
Mississippi, (or such other location as may be agreed to by the Bank and the
Employee), in accordance with the rules of the American Arbitration Association
then in effect. The arbitrator’s decisions shall be final and binding upon the
parties and judgment may be entered in any court of competent jurisdiction.
Employee must initial here: /s/
DKG
6.3 Fees
and
Expenses. After a Change of Control has occurred, the Employee shall not be
required to incur legal fees and expenses associated with the interpretation,
enforcement or defense of his rights under this Agreement by litigation or
otherwise. Accordingly, if, following a Change of Control, the Bank has failed
to comply with any of its obligations under this Agreement or the Bank or any
other person takes or threatens to take action to declare this Agreement void
or
unenforceable or institutes any litigation or proceeding designed to deny or
to
recover from the Employee the benefits provided under this Agreement, the
Employee shall be entitled to retain counsel of the Employee’s choice, at the
expense of the Bank, to advise and represent the Employee in connection with
such dispute. This provision is intended to include any such interpretation,
enforcement or defense, including without limitation the initiation or defense
of any litigation, arbitration or other legal action, whether by or against
the
Bank or any director, officer, stockholder or other person affiliated with
the
Bank, in any jurisdiction. The Bank shall pay and be solely financially
responsible for any and all attorneys’ and related fees and expenses incurred by
the Employee in connection with any of the foregoing, without regard to whether
the Employee prevails, in whole or in part.
In
no
event shall the Employee be required to reimburse the Bank for any of the costs
and expenses incurred by the Bank relating to arbitration, litigation, or other
legal action in connection with this Agreement.
6.4 Governing
Laws. This Agreement shall be construed and enforced in accordance with the
laws
of the State of Mississippi.
6.5 Entire
Agreement. This Agreement contains the entire agreement among the parties and
there are no agreements, representations, or warranties that are not set forth
herein. All prior negotiations, agreements, and understandings are superseded.
This Agreement may not be amended or revised except by a writing signed by
all
the parties. Employee acknowledges and agrees that the Employment Agreement
dated June 3, 2002, as amended, was terminated upon execution of the Termination
and Release Agreement in connection therewith.
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6.6 Binding
Effect. This Agreement shall be binding upon and inure to the benefit of the
heirs, legal representatives, and successors of the respective parties; provided
however, that this Agreement and all its rights may not be assigned by any
party
except by or with the written consent of the other parties.
6.7 Counterparts.
This Agreement may be executed in any number of counterparts, each of which,
when bearing original signatures, shall be deemed to be a duplicate original.
IN
WITNESS WHEREOF, this Agreement has been executed effective the date stated
on
the first page.
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BANK
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BY:
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/s/
Xxxxxxx X. Xxxxxx
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EMPLOYEE
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/s/
Xxxxx X. Xxxxxx
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