EXHIBIT 10.1
EBANK
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made by and between
ebank, formerly Commerce Bank, (the "Employer"), and Xxxxx X. Xxxxx, an
individual resident of Georgia (the "Employee"), as of this __2__ day of
__January__, 2002 ("Effective Date").
The Employer presently employs the Employee as its Senior Vice
President and Chief Financial Officer. The Employer recognizes that the
Employee's contribution to the growth and success of the Employer is
substantial. The Employer desires to provide for the continued employment of the
Employee and to make certain changes in the Employee's employment arrangements
which the Employer has determined will reinforce and encourage the continued
dedication of the Employee to the Employer and will promote the best interests
of the Employer and its shareholders. The Employee is willing to continue to
serve the Employer on the terms and conditions herein provided.
In consideration of the foregoing, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree that on the Effective Date:
1. Employment. The Employer shall continue to employ the Employee, and
the Employee shall continue to serve the Employer, as Senior Vice President and
Chief Financial Officer upon the terms and conditions set forth herein. The
Employee shall have such authority and responsibilities as are consistent with
his position and which may be set forth in this Agreement or assigned by the
Chief Executive Officer ("CEO") or the Board of Directors from time to time. The
Employee shall devote his full business time, attention, skill and efforts to
the performance of his duties hereunder, except during periods of illness or
periods of vacation and leaves of absence consistent with the Employer's policy.
The Employee may devote reasonable periods of time to perform charitable and
other community activities and to manage his personal investments; provided,
however, that such activities will not materially interfere with the performance
of his duties hereunder and will not be in conflict or competitive with, or
adverse to, the interests of the Employer. Under no circumstances will the
Employee work for any competitor or have any financial interest in any
competitor of the Employer; provided, however, that the Employee may invest in
up to 1% of the publicly-traded stock or securities of any company whose stock
or securities are traded on a national exchange.
2. Term. Unless earlier terminated as provided herein, the Employee's
employment under this Agreement shall be for a continuing term (the "Term") of
one year, which shall be extended automatically (without further action of the
Employer or the Employee) 30 days prior to the end of each year for an
additional year so that the remaining term shall again become one year unless,
prior to any such automatic extension, either party shall deliver written notice
upon the other of its intention that this Agreement shall not be so extended, in
which case the Agreement shall continue through its remaining term but shall not
be extended absent written agreement by both the Employer and the Employee.
3. Compensation and Benefits.
a. The Employer shall pay the Employee a salary at a rate of
not less than $__100,000__ per annum in accordance with the salary payment
practices of the Employer. The Board of Directors shall review the Employee's
salary at least annually and may increase the Employee's base salary if it
determines in its sole discretion that an increase is appropriate. In addition
to the aforementioned annual salary, the Employee shall receive the following
benefits:
- An automobile allowance of $_500_____ per month.
- Four weeks of paid vacation
b. The Employee shall participate in any retirement, welfare,
deferred compensation, life and health insurance, and other benefit plans or
programs of the Employer now or hereafter applicable to the Employee or
applicable generally to employees of the Employer, as determined by the Board of
Directors.
c. The Employer shall continue to reimburse the Employee for
reasonable travel and other expenses related to the Employee's duties which are
incurred and accounted for in accordance with the Employer's standard business
practices.
d. The Employee shall be eligible to receive cash bonuses
based on the Employee's achievement of specified goals and criteria. These goals
and criteria may include both annual and long-term goals, may provide for
vesting over a specified time period, and shall be established annually by the
Compensation Committee of the Board of Directors and attached to and made a part
of this Agreement (the "Bonus Plan"). Unless provided otherwise in any
particular Bonus Plan, each annual award will vest on January 1 of the year
following the year for which the award is earned, provided that the Employee is
actively employed on such date, and each long-term incentive compensation award
will vest in equal portions on January 1 of the three years following the year
in which the award is earned, provided that the Employee is actively employed on
each such date. The Employer shall make payment on any vested bonus within a
reasonable period after vesting thereof.
4. Termination.
a. The Employee's employment under this Agreement may be
terminated prior to the end of the Term only as follows:
(i) upon the death of the Employee;
(ii) upon the disability of the Employee for a
period of 180 days which, in the opinion of
the Board of Directors, renders him unable
to perform the essential functions of his
job and for which reasonable accommodation
is unavailable. For purposes of this
Agreement, a "disability" is defined as a
physical or mental impairment that
substantially limits one or more major life
activities, and a "reasonable accommodation"
is one that does not impose an undue
hardship on the Employer;
(iii) upon the determination of Cause for
termination, in which event such employment
may be terminated by written notice at the
election of the Employer. For purposes of
this Agreement, termination for "Cause"
shall include termination because of the
Employee's personal dishonesty,
incompetence, willful misconduct, breach of
a fiduciary duty involving personal profit,
intentional failure to perform stated
duties, willful violation of any law, rule,
or regulation (other than traffic violations
or similar offenses) or final
cease-and-desist order, or material breach
of any provision of this Agreement. In
addition, "Cause" shall consist of (A) the
commission by the Employee of a grossly
negligent act, or the grossly negligent
omission to act by the Employee, which
causes, or is reasonably likely to cause,
material harm to the Employer (including
harm to its business reputation), (B) the
indictment of the Employee for the
commission or perpetration by the Employee
of any felony or any crime involving
dishonesty, moral turpitude or fraud, (C)
the exhibition
by the Employee of a standard of behavior
within the scope of his employment that is
materially disruptive to the orderly conduct
of the Employer's business operations
(including, without limitation, substance
abuse or sexual misconduct) to a level
which, in the Board of Directors' good faith
and reasonable judgment, is materially
detrimental to the Employer's best interest,
that, if susceptible of cure, remains
uncured ten days following written notice to
the Employee of such specific inappropriate
behavior, or (D) the failure of the Employee
to render the services hereunder in
accordance with an appropriate performance
standard determined in the sole discretion
of the Board of Directors; or
(iv) upon 30 days written notice thereof to the
Employee from the Employer (termination
"Without Cause"), provided that in the event
of any such termination Without Cause,
Section 4(e) shall be applicable thereto.
b. If the Employee's employment is terminated because of the
Employee's death, the Employee's estate shall receive any sums due him as base
salary and/or reimbursement of expenses through the end of the month during
which death occurred, plus any bonus earned or accrued under the Bonus Plan
through the date of death (including any amounts awarded for previous years but
which were not yet vested) and a pro rata share of any bonus with respect to the
current fiscal year which had been earned as of the date of the Employee's
death.
c. During the period of any incapacity leading up to the
termination of the Employee's employment as a result of disability, the Employer
shall continue to pay the Employee his full base salary at the rate then in
effect and all perquisites and other benefits (other than any bonus) until the
Employee becomes eligible for benefits under any long-term disability plan or
insurance program maintained by the Employer, provided that the amount of any
such payments to the Employee shall be reduced by the sum of the amounts, if
any, payable to the Employee for the same period under any disability benefit or
pension plan of the Employer or any of its subsidiaries. Furthermore, the
Employee shall receive any bonus earned or accrued under the Bonus Plan through
the date of incapacity (including any amounts awarded for previous years but
which were not yet vested) and a pro rata share of any bonus with respect to the
current fiscal year which had been earned as of the date of the Employee's
incapacity.
d. If the Employee's employment is terminated for Cause as
provided above, or if the Employee resigns (except for a termination of
employment pursuant to Section 4(f)), the Employee shall receive any sums due
him as base salary and/or reimbursement of expenses through the date of such
termination, but Employee will thereby forfeit any rights in any unpaid bonus,
including, without limitation, any bonus amounts awarded for previous years
which were not yet vested and any share of any bonus with respect to the current
fiscal year which had been earned as of the date of such termination or
resignation.
e. If the Employee's employment is terminated Without Cause,
the Employer shall pay to the Employee severance compensation in an amount equal
to 100% of his then-current monthly base salary each month for three months from
the date of termination, plus any bonus earned or accrued under the Bonus Plan
through the date of termination and a pro rata share of any bonus with respect
to the current fiscal year which had been earned as of the date of the
Employee's termination. However, Section 4(f) shall apply instead of this
Section 4(e) to any termination Without Cause after a Change in Control.
f. Upon a Change in Control, the Employee may terminate his
employment hereunder for any reason upon delivery of notice to the Employer
within a 90-day period beginning upon the occurrence of a Change in Control or
within a 90-day period beginning on the one year anniversary of the occurrence
of a Change in Control. If the Employee terminates his employment pursuant to
this Section 4(f) or if the Employer terminates the Employee Without Cause after
a Change in Control, in addition to other rights and remedies available in law
or equity, the restrictive covenants contained in Section 9 shall not apply
and, in addition, the Employee shall be entitled to the following provided that
the Change in Control resulted in a diminution of duties, required relocation,
or similar grievous action: (i) the Employer shall pay the Employee in cash
within 15 days of such termination date any sums due him as base salary and/or
reimbursement of expenses through the date of such termination, plus any bonus
earned or accrued under the Bonus Plan through the date of termination
(including any amounts awarded for previous years but which were not yet vested)
and a pro rata share of any bonus with respect to the current fiscal year which
had been earned as of the date of the Employee's termination (and any forfeiture
in other restrictive provisions applicable to each award shall not apply); and
(ii) the Employer shall pay the Employee in cash within 15 days of such
termination date one lump sum payment in an amount equal to the Employee's then
current annual base salary multiplied by the original full Term (without taking
into account the amount of the Term which may have lapsed by such date).
g. With the exceptions of the provisions of this Section 4,
and the express terms of any benefit plan under which the Employee is a
participant, upon termination of the Employee's employment, the Employer shall
have no obligation to the Employee for, and the Employee waives and
relinquishes, any further compensation or benefits (exclusive of COBRA
benefits). At the time of termination of employment, the Employee shall enter
into a form of release acknowledging such remaining obligations and discharging
the Employer, as well as the Employer's officers, directors and employees with
respect to their actions for or on behalf of the Employer, from any other claims
or obligations arising out of or in connection with the Employee's employment by
the Employer, including the circumstances of such termination.
h. In the event that the Employee's employment is terminated
for any reason and the Employee serves as a director of the Employer or of any
subsidiary of the Employer, the Employee shall (and does hereby) tender his
resignation from such positions effective as of the date of termination.
i. The parties intend that the severance payments and other
compensation provided for herein are reasonable compensation for the Employee's
services to the Employer and shall not constitute "excess parachute payments"
within the meaning of Section 280G(b) of the Internal Revenue Code of 1986 and
any regulations thereunder. In the event that the Employer's independent
accountants acting as auditors for the Employer on the date of a Change in
Control determine that the payments provided for herein constitute "excess
parachute payments," then the Employee's compensation payable hereunder shall be
decreased, so as to equal an amount that is $1.00 less than three times the
Employee's "base amount," as that term is defined in Section 280G(b) of the
Internal Revenue Code, if, and only if, reducing the Employee's compensation
will put the Employee in a better after-tax position than if the Employee's
compensation was not reduced.
j. Notwithstanding anything to the contrary herein, if the
Employee is suspended or temporarily prohibited from participating in the
conduct of the Employer's affairs by a notice served under section 8(e)(3) or
(g)(1) of Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(3) and (g)(1)), the
Employer's obligations under this Agreement shall be suspended as of the date of
service unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Employer may in its discretion (i) pay the Employee all or
part of the compensation withheld while the obligations under this Agreement
were suspended and (ii) reinstate (in whole or in part) any of such obligations
which were suspended.
k. Notwithstanding anything to the contrary herein, if the
Employee is removed or permanently prohibited from participating in the conduct
of the Employer's affairs by an order issued under section 8 (e)(4) or (g)(1) of
the Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(4) or (g)(1)), all
obligations of the Employee under this Agreement shall terminate as of the
effective date of the order, but any vested rights of the parties hereto shall
not be affected.
l. Notwithstanding anything to the contrary herein, if the
Employer is in default (as defined in section 3(x)(1) of the Federal Deposit
Insurance Act), all obligations under this Agreement shall terminate as of the
date of default, but this paragraph (4)(e) shall not affect any vested rights of
the parties hereto.
m. Notwithstanding anything to the contrary herein, all
obligations under this Agreement shall be terminated, except to the extent
determined that continuation of this Agreement is necessary for the continued
operation of the Employer, in the following cases:
(a) By the Director of the Office of Thrift
Supervision (the "OTS Director") or his or her designee, at
the time the Federal Deposit Insurance Corporation enters into
an agreement to provide assistance to or on behalf of the
Employer under the authority contained in 13(c) of the Federal
Deposit Insurance Act; or
(b) By the OTS Director or his or her designee, at
the time the OTS Director or his or her designee approves a
supervisory merger to resolve problems related to operation of
the Employer or when the Employer is determined by the OTS
Director to be in an unsafe or unsound condition.
n. Any payments made to the Employee pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with 12 U.S.C. Section 1828(k) and any regulations promulgated thereunder.
5. Ownership of Work Product. The Employer shall own all Work Product
arising during the course of the Employee's employment (prior, present or
future). For purposes hereof, "Work Product" shall mean all intellectual
property rights, including all Trade Secrets, U.S. and international copyrights,
patentable inventions, and other intellectual property rights, in any
programming, documentation, technology, work of authorship or other work product
that relates to the Employer, its business or its customers and that Employee
conceives, develops, or delivers to the Employer or that otherwise arises out of
the services provided by the Employee to the Employer hereunder, at any time
during his employment, during or outside normal working hours, in or away from
the facilities of the Employer, and whether or not requested by the Employer. If
the Work Product contains any materials, programming or intellectual property
rights that the Employee conceived or developed prior to, and independent of,
the Employee's work for the Employer, the Employee agrees to identify the
pre-existing items to the Employer, and the Employee grants the Employer a
worldwide, unrestricted, royalty-free right, including the right to sublicense
such items. The Employee agrees to take such actions and execute such further
acknowledgments and assignments as the Employer may reasonably request to give
effect to this provision.
6. Protection of Trade Secrets. The Employee agrees to maintain in
strict confidence and, except as necessary to perform his duties for the
Employer, the Employee agrees not to use or disclose any Trade Secrets of the
Employer during or after his employment. For the purposes hereof, "Trade Secret"
means information, including, without limitation, technical or non-technical
data, a formula, a pattern, a compilation, a program, a device, a method, a
technique, a process, a drawing, financial data, financial plans, product plans,
information on customers or a list of actual or potential customers or
suppliers, which: (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.
7. Protection of Other Confidential Information. In addition, the
Employee agrees to maintain in strict confidence and, except as necessary to
perform his duties for the Employer, not to use or disclose any Confidential
Business Information of the Employer during his employment and for a period of
24 months following termination of the Employee's employment. "Confidential
Business Information" shall mean any internal, non-public information (other
than Trade Secrets already addressed above) concerning the Employer's financial
position and results of operations (including revenues, assets, net income,
etc.); annual and long-range business plans; product or service plans; marketing
plans and methods; training, educational and administrative manuals; customer
and supplier information and purchase histories; and employee lists. The
provisions of Sections 6 and 7 above shall also apply to protect Trade Secrets
and
Confidential Business Information of third parties provided to the Employer
under an obligation of secrecy.
8. Return of Materials. The Employee shall surrender to the Employer,
promptly upon its request and in any event upon termination of the Employee's
employment, all media, documents, notebooks, computer programs, handbooks, data
files, models, samples, price lists, drawings, customer lists, prospect data, or
other material of any nature whatsoever (in tangible or electronic form) in the
Employee's possession or control, including all copies thereof, relating to the
Employer, its business, or its customers. Upon the request of the Employer,
Employee shall certify in writing compliance with the foregoing requirement.
9. Restrictive Covenants.
a. No Solicitation of Customers. During the Employee's
employment with the Employer and for a period of 24 months thereafter, the
Employee shall not (except on behalf of or with the prior written consent of the
Employer), either directly or indirectly, on the Employee's own behalf or in the
service or on behalf of others, solicit or attempt to solicit Customers to
induce or encourage them to acquire or obtain from anyone other than the
Employer or its subsidiaries any product or service competitive with or
substitute for any of the Employer's Products. For purposes of this Section,
"Customer" refers to any person or group of persons with whom the Employee had
direct material contact with regard to the selling, delivery, or support of the
Employer's Products, including servicing such person's or group's account,
during the period of 12 months preceding the solicitation date. The "Employer's
Products" refers to the products and services that the Employer or any of its
subsidiaries or affiliates offered or sold within six months of the solicitation
date. This restriction does not apply after a Change in Control.
b. No Recruitment of Personnel. During the Employee's
employment with the Employer and for a period of 24 months thereafter, the
Employee shall not, either directly or indirectly, on the Employee's own behalf
or in the service or on behalf of others, solicit or induce any employee of or
consultant to the Employer or any of its subsidiaries or affiliates to leave his
or her position with the Employer (or the subsidiary or affiliate), or recruit
or attempt to recruit such persons to accept employment or any other position
with another business. This restriction does not apply after a Change in
Control.
c. Independent Provisions. The provisions in each of the above
Sections 9(a) and 9(b) are independent, and the unenforceability of any one
provision shall not affect the enforceability of any other provision.
10. Successors; Binding Agreement. This Agreement shall be binding upon
and shall inure to the benefit of the Employer and its successors and assigns.
Neither this Agreement nor any right or interest hereunder shall be assignable
or transferable by the Employee, his beneficiaries or legal representatives,
except by will or by the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Employee's legal personal
representative.
11. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses last given by each party to the other; provided, however, that all
notices to the Employer shall be directed to the attention of the Employer with
a copy to the Secretary of the Employer. All notices and communications shall be
deemed to have been received on the date of delivery thereof.
12. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Georgia without giving
effect to the conflict of laws principles thereof. Any action brought by any
party to this Agreement shall be brought and maintained in a court of competent
jurisdiction in State of Georgia.
13. Non-Waiver. Failure of the Employer to enforce any of the
provisions of this Agreement or any rights with respect thereto shall in no way
be considered to be a waiver of such provisions or rights, or in any way affect
the validity of this Agreement.
14. Enforcement. The Employee agrees that in the event of any breach or
threatened breach by the Employee of any covenant contained in Section 6, 7,
9(a), or 9(b) hereof, the resulting injuries to the Employer would be difficult
or impossible to estimate accurately, even though irreparable injury or damages
would certainly result. Accordingly, an award of legal damages, if without other
relief, would be inadequate to protect the Employer. The Employee, therefore,
agrees that in the event of any such breach, the Employer shall be entitled to
obtain from a court of competent jurisdiction an injunction to restrain the
breach or anticipated breach of any such covenant, and to obtain any other
available legal, equitable, statutory, or contractual relief. Should the
Employer have cause to seek such relief, no bond shall be required from the
Employer, and the Employee shall pay all attorney's fees and court costs which
the Employer may incur to the extent the Employer prevails in its enforcement
action.
15. Saving Clause. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision or clause of this Agreement, or portion thereof, shall be held by any
court or other tribunal of competent jurisdiction to be illegal, void, or
unenforceable in such jurisdiction, the remainder of such provision shall not be
thereby affected and shall be given full effect, without regard to the invalid
portion. It is the intention of the parties that, if any court construes any
provision or clause of this Agreement, or any portion thereof, to be illegal,
void, or unenforceable because of the duration of such provision or the area or
matter covered thereby, such court shall reduce the duration, area, or matter of
such provision, and, in its reduced form, such provision shall then be
enforceable and shall be enforced.
16. Certain Definitions.
a. "Change in Control" shall mean the occurrence during the Term of any
of the following events, unless such event is a result of a Non-Control
Transaction:
(i) The individuals who, as of the date of this
Agreement, are members of the Board of Directors of
the Employer (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board
of Directors of the Employer; provided, however, that
if the election, or nomination for election by the
Employer's shareholders, of any new director was
approved in advance by a vote of at least a majority
of the Incumbent Board, such new director shall, for
purposes of this Agreement, be considered as a member
of the Incumbent Board.
(ii) An acquisition (other than directly from the
Employer) of any voting securities of the Employer
(the "Voting Securities") by any "Person" (as the
term "person" is used for purposes of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934)
immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 50% or more of
the combined voting power of the Employer's then
outstanding Voting Securities.
b. "Non-Control Transaction" shall mean a transaction described below:
(i) the shareholders of the Employer, immediately before
such merger, consolidation or reorganization, own,
directly or indirectly, immediately following such
merger, consolidation or reorganization, at least 50%
of the combined voting power of the outstanding
voting securities of the corporation resulting from
such merger, consolidation or reorganization
(the "Surviving Corporation") in substantially the
same proportion as their ownership of the Voting
Securities immediately before such merger,
consolidation or reorganization; and
(ii) immediately following such merger, consolidation or
reorganization, the number of directors on the board
of directors of the Surviving Corporation who were
members of the Incumbent Board shall at least equal
the number of directors who were affiliated with or
appointed by the other party to the merger,
consolidation or reorganization.
17. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Employer has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers thereunto duly
authorized, and the Employee has signed and sealed this Agreement, effective as
of the date first above written.
ebank
By: /s/ Xxxxx X. Box
--------------------------
Name: Xxxxx X. Box
Title: Chief Executive Officer
EMPLOYEE
/s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
