EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into and
effective as of August 1, 2005 by and among Xxxxxxx X. Xxxxxxx, a resident of
the State of Georgia ("Employee"), Northside Bank, a proposed Georgia state
banking corporation ("Employer") and Northside Bancshares, Inc., a Georgia
corporation and sole shareholder of Employer (the "Company").
WITNESSETH:
WHEREAS, Employer and Employee each deem it necessary and desirable, for
their mutual protection, to execute a written document setting forth the terms
and conditions of their employment relationship;
NOW, THEREFORE, in consideration of the employment of Employee by
Employer, of the premises and the mutual promises and covenants contained
herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Employment and Duties. Employer hereby employs Employee to serve as
Senior Vice President and Chief Lending Officer of Employer and to perform such
other duties and responsibilities as customarily performed by persons acting in
such capacity. During the term of this Agreement, Employee will devote all of
his business time, skill and energies on a full-time exclusive basis to his
duties hereunder.
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2. Term. Subject to the provisions of Section 12 of this Agreement, the
period of Employee's employment under this Agreement shall be deemed to have
commenced as of August 1, 2005 and shall continue for a period of 36 calendar
months thereafter (i) unless Employee dies before the end of such 36 months,
(ii) Employer is not successful in obtaining final opening approvals (the "Final
Approvals") from the Department of Banking and Finance of the State of Georgia
(the "Georgia Department") and the Federal Deposit Insurance Corporation (the
"FDIC") or (iii) the Company is unable to raise at least Ten Million Dollars in
equity (the "Minimum Capital") in order to capitalize Employer. In any such
event, the period of employment shall continue until the earlier of the end of
the month during which Employee dies or it becomes evident that the Final
Approvals will not be obtained or the Minimum Capital will not be raised. The
period of employment shall automatically be extended for additional one year
terms on each anniversary without further action by the parties, commencing on
August 1, 2008 and each August 1 thereafter. No such automatic extension shall
occur if either party shall, within 90 days prior to any said anniversary,
deliver written notice to the other of its intention that this Agreement shall
not be so extended.
3. Compensation. For all services to be rendered by Employee during the
term of this Agreement, Employer shall pay Employee in accordance with the terms
set forth in Exhibit A, net of applicable withholdings, payable in semi-monthly
installments or such other compensation payment schedule as may be adopted by
Employer for its full time Employees.
4. Expenses. So long as Employee is employed hereunder, Employee is
entitled to receive reimbursement for, or seek payment directly by Employer of,
all reasonable expenses which are consistent with the normal policy of Employer
in the performance of Employee's duties hereunder, provided that Employee
accounts for such expenses in writing.
5. Employee Benefits. So long as Employee is employed hereunder, Employee
shall be entitled to participate in the various employee benefit programs
adopted by Employer and the Company from time to time on the most favorable
basis as may be available to other Officers and Executive management of the
Employer and Company.
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6. Vacation. For the period beginning as of the date of this Agreement and
ending December 31, 2005, Employee shall be entitled to two weeks vacation.
Thereafter, Employee shall be entitled to four weeks annual vacation, provided
that no more than two weeks of such vacation shall be used in any 60 day period.
7. Confidentiality. In Employee's position as an employee of Employer,
Employee has had and will have access to confidential information, trade secrets
and other proprietary information of vital importance to Employer and the
Company and has and will also develop relationships with customers, employees
and others who deal with Employer or the Company which are of value to Employer
and the Company. Employer requires, as a condition to Employee's employment with
Employer, that Employee agree to certain restrictions on Employee's use of the
proprietary information and valuable relationships developed during Employee's
employment with Employer. In consideration of the terms and conditions contained
herein, the parties hereby agree as follows:
7.1 Employer and Employee mutually agree and acknowledge that Employer and
the Company may entrust Employee with highly sensitive, confidential, restricted
and proprietary information concerning various Business Opportunities (as
hereinafter defined), customer lists, and personnel matters. Employee
acknowledges that he shall bear a fiduciary responsibility to Employer and the
Company to protect such information from use or disclosure that is not necessary
for the performance of Employee's duties hereunder, as an essential incident of
Employee's employment with Employer.
7.2 For the purposes of this Section 7, the following definitions shall
apply:
7.2.1 "Trade Secret" shall mean the identity and addresses of
customers of Employer or the Company, the whole or any portion or phase of
any scientific or technical information, design, process, procedure,
formula or improvement that is valuable and secret (in the sense that it
is not generally known to competitors of Employer or the Company) and
which is defined as a "trade secret" under Georgia law pursuant to the
Georgia Trade Secrets Act.
7.2.2 "Confidential Information" shall mean any data or information,
other than Trade Secrets, which is material to Employer or the Company and
not generally known by the public. Confidential Information shall include,
but not be limited to, Business Opportunities of Employer or the Company
(as hereinafter defined), the details of this Agreement, Employer's or the
Company's business plans and
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financial statements and projections, information as to the capabilities
of Employer's or the Company's employees, their respective salaries and
benefits and any other terms of their employment and the costs of the
services Employer or the Company may offer or provide to the customers it
serves, to the extent such information is material to Employer or the
Company and not generally known by the public.
7.2.3 "Business Opportunities" shall mean any specialized
information or plans of Employer or the Company concerning the provision
of financial services to the public, together with all related information
concerning the specifics of any contemplated financial services regardless
of whether Employer has contacted or communicated with such target person
or business.
7.2.4 Notwithstanding the definitions of Trade Secrets, Confidential
Information, and Business Opportunities set forth above, Trade Secrets,
Confidential Information, and Business Opportunities shall not include any
information:
(i) that is or becomes generally known to the public;
(ii) that is already known by Employee or is developed by Employee
after termination of employment through entirely independent efforts;
(iii) that Employee obtains from an independent source having a bona
fide right to use and disclose such information;
(iv) that is required to be disclosed by law, except to the extent
eligible for special treatment under an appropriate protective order; or
(v) that Employer's or the Company's Board of Directors approves for
release.
7.3 Employee shall not, without the prior approval of Employer's or the
Company's Board of Directors, during his employment with Employer and for so
long thereafter as the information or data remain Trade Secrets, use or
disclose, or negligently permit any unauthorized person who is not an employee
of Employer or the Company to use, disclose, or gain access to, any Trade
Secrets.
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7.4 Employee shall not, without the prior written consent of Employer or
the Company, during his employment with Employer and for a period of two years
thereafter as long as the information or data remain competitively sensitive,
use or disclose, or negligently permit any unauthorized person who is not
employed by Employer or the Company to use, disclose, or gain access to, any
Confidential Information to which the Employee obtained access by virtue of his
employment with Employer, except as provided in Section 7.2 of this Agreement.
8. Observance of Security Measures. During Employee's employment with
Employer, Employee is required to observe all security measures adopted to
protect Trade Secrets, Confidential Information and Business Opportunities.
9. Return of Materials. Upon the request of Employer or the Company and,
in any event, upon the termination of his employment with Employer, Employee
shall deliver to Employer all memoranda, notes, records, manuals or other
documents, including all copies of such materials containing Trade Secrets or
Confidential Information, whether made or compiled by Employee or furnished to
him from any source by virtue of his employment with Employer.
10. Severability. Employee acknowledges and agrees that the covenants
contained in Sections 7 through 9 and Section 14 of this Agreement shall be
construed as covenants independent of one another and distinct from the
remaining terms and conditions of this Agreement, and severable from every other
contract and course of business by and among Employer, the Company and Employee,
and that the existence of any claim, suit or action by Employee against Employer
and/or the Company, whether predicated upon this Agreement or any other
agreement, shall not constitute a defense to Employer's or the Company's
enforcement of any covenant contained in Sections 7 through 9 and Section 14 of
this Agreement.
11. Specific Performance. Employee acknowledges and agrees that the
covenants contained in Sections 7 through 9 and Section 14 of this Agreement
shall survive any termination of employment, as applicable, with or without
Cause (as hereinafter defined), at the instigation or upon the initiative of any
party. Employee further acknowledges and agrees that the ascertainment of
damages in the event of Employee's breach of any covenant contained in Sections
7 through 9 and Section 14 of this Agreement would be difficult, if at all
possible. Employee therefore acknowledges and agrees that Employer and the
Company shall be entitled in addition to and
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not in limitation of any other rights, remedies, or damages available to
Employer and the Company in arbitration, at law or in equity, upon submitting
whatever affidavit the law may require, and posting any necessary bond, to have
a court of competent jurisdiction enjoin Employee from committing any such
breach.
12. Termination.
12.1 During the term of this Agreement, Employee's employment, including
without limitation, all compensation, salary, expenses reimbursement, and
employee benefits may be terminated (i) at the election of Employer for Cause or
without Cause; (ii) at Employee's election upon Employer's breach of any
material provision of this Agreement; (iii) upon Employee's death; or (iv) at
the election of either party, upon Employee's disability resulting in an
inability to perform the duties described in Section 1 of this Agreement for a
period of 90 consecutive days, as determined by Employer's Board of Directors in
its sole discretion.
12.2 As used in this Agreement, "Cause" shall mean (i) conduct by Employee
that amounts to fraud, material dishonesty, gross negligence or willful
misconduct in the performance of his duties hereunder; (ii) the conviction (from
which no appeal may be, or is, timely taken) of Employee of a felony; (iii)
initiation of suspension or removal proceedings against Employee by federal or
state regulatory authorities acting under lawful authority pursuant to
provisions of federal or state law or regulation which may be in effect from
time to time; (iv) knowing violation of federal or state banking laws or
regulations which are likely to have a material adverse effect on the Company;
(v) refusal to perform a duly authorized directive of Employer's Board of
Directors unless Employee in good faith believes that such act would cause
Employee to breach his fiduciary duties to the Company or Employer, or (vi)
breach by Employee of Section 15.7 of this Agreement.
12.3 No termination by Employer shall be effective unless it is approved
by a majority vote of Employer's Board of Directors, excluding the vote, if any,
of Employee.
12.4 If this Agreement is terminated either pursuant to Cause, Employee's
death or Employee's disability, Employee shall receive no further compensation
or benefits other than six weeks' severance pay based on Employee's then current
Base Salary plus any accrued but unused vacation computed on a daily basis
payable in a lump-sum payment on the date of notice of such termination. All
unvested stock options as well as any other benefits to which Employee would
otherwise be entitled will be forfeited.
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12.5 If Employee is terminated by Employer without Cause, then Employee
shall receive an amount equal to one year's severance pay equal to Employee's
then current Base Salary plus any accrued but unused vacation computed on a
daily basis, both payable in 12 equal monthly payments commencing two weeks
after notice of such termination is delivered to Employee. Employee shall
receive no further compensation or benefits and all unvested stock options as
well as any other benefits to which he would otherwise be entitled will be
forfeited. Employer shall be required to provide Employee no less than two
weeks' notice of termination of this Agreement without Cause, pursuant to this
Section 12.5.
12.6 If Employee is terminated by Employer prior to the receipt of Final
Approvals or if the Company abandons its efforts to raise the Minimum Capital,
Employee shall receive an amount equal to six months' severance pay based on
Employee's then current Base Salary payable in six equal monthly payments
commencing on the date of notice of such termination. Employee shall receive no
further compensation or benefits.
12.7 If Employee is terminated by Employer because it did not receive
Final Approvals or the Company failed to raise the Minimum Capital, Employee
shall receive an amount equal to three months' severance pay based on Employee's
then current Base Salary payable in three equal monthly payments commencing on
the date of such termination. Employee shall receive no further compensation or
benefits.
13. Notices. All notice provided for herein shall be in writing and shall
be deemed to be given when delivered in person or deposited in the United States
Mail, registered or certified, return receipt requested, with proper postage
prepaid and addressed as follows:
Employer and Company: Northside Bancshares, Inc.
Xxxx Xxxxxx Xxx 000
Xxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Chairman
Employee: Xxxxxxx X. Xxxxxxx
000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
14. Covenant Not to Compete, Not to Solicit and Not to Hire.
14.1 For purposes of this Section 14, Employer and Employee conduct
the following business in the following geographic areas:
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14.1.1 Upon receipt of the Final Approvals, Employer will
engage in the business of transacting business as a bank which
accepts deposits, makes loans, cashes checks and otherwise engages
in the business of banking and such other business as may lawfully
be engaged in by a Georgia financial institution (collectively, the
"Business of Employer").
14.1.2 Employee will establish business relationships and
perform the duties described in Section 1 of this Agreement in the
geographic area covered by the "primary service area" of Employer,
as such term is defined from time to time in regulatory filings by
Employer with the Georgia Department and/or the FDIC, and will work
primarily in such area while in the employ of Employer.
14.2 Employee covenants and agrees that, for a period of one year
following the termination of this Agreement by Employee for any reason, he will
not, directly or indirectly, as principal, agent, trustee, consultant or through
the agency of any financial institution, corporation, partnership, association,
trust or other entity or person, on Employee's own behalf or for others, provide
the duties described in Section 1 of this Agreement for any entity or person
conducting the Business of Employer within Employer's primary service area.
15. Miscellaneous.
15.1 This Agreement, together with Exhibit A, constitutes and expresses
the whole agreement of the parties in reference to the employment of Employee by
Employer, and there are no representations, inducements, promises, agreements,
arrangements, or undertakings oral or written, between the parties other than
those set forth herein.
15.2 This Agreement shall be governed by the laws of the State of Georgia.
15.3 Should any clause or any other provision of this Agreement be
determined to be void or unenforceable for any reason, such determination shall
not affect the validity or enforceability of any clause or provision of this
Agreement, all of which shall remain in full force and effect.
15.4 Time is of the essence in this Agreement.
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15.5 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and assigns. This Agreement shall not be
assignable by Employee without the prior written consent of Employer.
15.6 This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original and all of which taken together shall
constitute but a single instrument.
15.7 Employee represents and warrants that (i) no restrictions or
covenants exist with his current employer which would restrict or prohibit his
performance hereunder and (ii) his employment by the Employer or the Company is
not prohibited or restricted in any way under the terms of any employment
contract, past or present. Employee will indemnify and hold harmless Employer,
including Employer's attorneys' fees, for any breach of this representation and
warranty.
15.8 Upon acceptance by all parties, this Agreement shall be contingent
upon a work history, criminal and academic background check of Employee by
Employer, the FDIC and the Georgia Department. In the event that in the
subjective determination of Employer, the FDIC or the Georgia Department,
Employee has been less than forthright in his disclosure of such information to
Employer or that either the FDIC or the Georgia Department object to Employee's
service as Senior Vice President and Chief Lending Officer, without conditions,
then this Agreement shall be null and void.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
"EMPLOYEE"
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------
Xxxxxxx X. Xxxxxxx
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"EMPLOYER"
NORTHSIDE BANK, a proposed Georgia State Banking
Corporation
/s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
By: Xxxxxxx X. Xxxxxx
Title: President
"COMPANY"
NORTHSIDE BANCSHARES, INC., a Georgia
corporation
/s/ Xxxxxxx Xxxxxx
------------------------------------------------
By: Xxxxxxx Xxxxxx
Title: Chairman
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EXHIBIT A
TO EMPLOYMENT AGREEMENT BY AND AMONG
XXXXXXX X. XXXXXXX,
NORTHSIDE BANK (PROPOSED) AND
NORTHSIDE BANCSHARES, INC.
Employee Compensation
Capitalized terms used herein and not defined shall have the meanings set forth
in the Employment Agreement.
BASE SALARY: $125,000 per year subject to annual increases in an amount equal to
such amount as the Board of Directors in its discretion shall determine to be
appropriate under the circumstances.
STOCK OPTIONS: Stock options to acquire 30,000 shares at the initial offering
price of the Company's common stock, are granted to Employee and vest 33.3% per
year on each anniversary of the opening of Employer.
AUTOMOBILE ALLOWANCE: $550 per month.
GROUP INSURANCE: Such health, hospitalization, dental, and any other insurance
plans as may be adopted by Employer's Board of Directors for employees of
Employer and their dependents.
CLUB: Employee will be permitted to use Employer's corporate membership at
Barnsley Gardens and all of Employee's reasonable business expenses incurred at
such club will be reimbursed in accordance with the entertainment expense
policies of Employer.
TRADE AND CIVIC ASSOCIATIONS: Employer will pay Employee's membership dues in a
reasonable number of trade and civic associations, the specific associations and
total number of memberships to be determined by Employer's Board of Directors in
its sole discretion.
