EXHIBIT 6.1
EMPLOYMENT AGREEMENT OF XXXXXXX X. XXXXXX
BANK
EMPLOYMENT AGREEMENT
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This agreement made and entered into this 30th day of August 1996, between
the Peoples Bank of West Georgia, Carrollton, Georgia ("the Bank") and Xxxxxxx
X. Xxxxxx, ("employee");
WHEREAS, the Bank is a state bank, regulated by the Georgia Department of
Banking and Finance, insured by the Federal Deposit Insurance Corporation, and
located in Carrollton, Georgia; and
WHEREAS, the Bank wants to employ the employee as President and Chief
Executive Officer of the Bank; and
WHEREAS, the parties desire to enter into this agreement setting forth the
terms and conditions of the employment relationship of the Bank and the
employee;
NOW, THEREFORE, it is AGREED as follows:
I. RELATIONSHIP ESTABLISHED AND DUTIES
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1. The Bank and the Bank Holding Company (when formed) hereby will employ
the employee as President and Chief Executive Officer, to hold the
title of President and Chief Executive Officer, and to perform such
services and duties as the Board of Directors may, from time to time,
designate during the term hereof. Subject to the terms and conditions
hereof, employee will perform such duties and exercise such authority
as are customarily performed and exercised by persons holding such
office, subject to the general direction of the Board of Directors of
the Bank, exercised in good faith in accordance with standards of
reasonable business judgment.
2. Employee shall serve on the Board of Directors of the Bank and the
Bank Holding Company (when formed), but shall not be entitled to
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Directors' Fees just like any other director, and shall serve as a
non-voting member of its Executive Committee, subject to the terms
hereof.
3. Employee accepts such employment and shall devote his full time,
attention, and efforts to the diligent performance of his duties
herein specified and as an officer and director of the Bank and will
not accept employment with any other individual, corporation,
partnership, governmental authority, or any other entity, or engage in
any other venture for profit which the Bank may consider to be in
conflict with his or its best interest or to be in competition with
the Bank's business, or which may interfere in any way with the
employee's performance of his duties hereunder. Any exception to this
must be made by notification and approval of the Board.
II. TERMS OF EMPLOYMENT
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1. The initial term of employment under this Agreement shall continue for
5 (five) years unless such is terminated pursuant to the terms hereof
or by the first to occur of the conditions to be stated hereinafter.
This Agreement will be automatically extended each year after the
initial term unless either party gives 90 days contrary written notice
to the other. The term previously stated notwithstanding this
contract shall be terminated by the earlier to occur of any of the
following:
a. the death of the employee;
b. the complete disability of employee. "Complete disability" as
used herein shall mean the inability of employee, due to illness,
accident, or other physical or mental incapacity to perform the
services provided for hereunder for an aggregate of sixty days
within any period of 120 consecutive days during the term hereof;
provided, however, disability shall not constitute a basis for
discharge for cause;
c. the discharge of employee by the Bank for cause. "Cause" as used
herein shall mean:
1) such negligence or misconduct as shall constitute, as a
matter of law, a breach of the covenants and obligations of
employee hereunder;
2) failure or refusal of employee to comply with the provisions
of this agreement;
3) employee being convicted by any duly constituted court with
competent jurisdiction of a crime involving moral turpitude;
4) at the discretion of the Board, this contract may be
terminated if there are acts the Board feels are moral
turpitude;
5) termination of the contract at the discretion of the Board
for failure to perform at acceptable levels of deposit
growth and other performance standards as determined by the
Board.
Termination of employee's employment shall constitute a tender by employee
of his resignation as an officer and director of the Bank and the Bank Holding
Company. In the event of termination the employee is entitled to severance pay
equal to one month's pay for each year employed by the Bank.
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III. COMPENSATION
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For all services which employee may render to the Bank during the term
hereof, the Bank shall pay to employee, subject to such deductions as may be
required by law:
1. Base Salary. An annual salary of $135,000 payable in equal weekly
installments and subject to such deductions as may be required by law,
for the first 12 months. Thereafter, annual increase reviews will be
done during the month of December for a January 1 effective increase
date during the term of this Agreement so that for the 12 months
beginning on each such anniversary date, the employee's salary
increases will take effect. The Board has sole discretion as to the
amount of the CEO's compensation.
2. Performance Bonuses. Each year, a performance bonus, ranging from 0%
to 50% of annual base salary will be awarded provided the Bank and
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Holding Company receive a CAMEL 1 or CAMEL 2 at the most recent
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examination by the regulators, and based upon the Board's evaluation
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of the bank's current condition based on a combination of safety and
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soundness criteria including capital adequacy, risk assessment, asset
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quality, liquidity, planning, policy adherence, personnel
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administration, internal controls, and management information systems
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and mutually agreed upon goals such as the Return on Average Assets
achieved before the application of taxes based upon the following
formula:
x. XXX equal to .90 but less than 1% Bonus = 5%
x. XXX greater than 1.0% but less than 1.10% Bonus = 10%
x. XXX equal to 1.10% but less than 1.20% Bonus = 15%
x. XXX equal to 1.20% but less than 1.30% Bonus = 20%
x. XXX equal to 1.30% but less than 1.40% Bonus = 25%
x. XXX equal to 1.40% but less than 1.60% Bonus = 30%
x. XXX equal to 1.60% but less than 1.75% Bonus = 35%
x. XXX equal to 1.75% but less than 2.00% Bonus = 40%
x. XXX over 2.00% Bonus = 50%
3. Stock Options. Based on his satisfactory performance the Employee, as
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determined by the Board using mutually agreed upon safety and
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soundness criteria as well as capital adequacy, asset quality,
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profitability, and liquidity, shall have the right and option to
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purchase an additional number of shares of common stock of the Bank
Holding Company in the following sequence:
a. 15,000 shares initially over the term of this Agreement not to
exceed 10 years,
b. beginning at the second year of Bank operation and thereafter in
an amount determined by multiplying (i) five thousand shares by
(ii) a fraction whose numerator is the Bonus Amount for the year
and whose denominator is the maximum Bonus Amount which could
have been received by the Employee for the year, for a maximum of
twenty-five thousand shares over the term of this Agreement.
The option granted to the Employee pursuant to this paragraph 3 may
be exercised by the Employee, in whole or in part, at any time or from
time to time during the period this Agreement is in effect beginning
on the first day of the second month following the close of the Bank's
fiscal year to which such grant is attributable. Notwithstanding
anything contained herein to the contrary, if the shareholders of the
Bank or the Bank Holding Company approve of a capital reorganization
of the common stock of the Bank Holding Company or a merger or
consolidation of the Bank Holding Company with or into another
corporation, or the sale of all or substantially all of the assets of
the Bank; or the Bank Holding Company, then Employee shall have the
right and option to purchase all stock options that would have been
paid to the Employee for the remaining term of this Agreement pursuant
to the terms of this paragraph, The purchase price for each share of
common stock of the Bank Holding Company that the Employee purchases
pursuant to the exercise of the options granted herein shall be the
book value at the time of purchase and shall be paid in cash upon
exercise.
IV. OTHER BENEFITS
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1. The employee shall be entitled to participate in any plan of the Bank
relating to stock options, stock purchases, profit sharing, group life
insurance, medical coverage, education, or other retirement or
employee benefits that the Bank may adopt for the benefit of its
employees.
2. The employee shall be eligible to participate in any other benefits
which may be or become applicable to the Bank's executive employees,
shall be furnished a car with all expenses of maintenance to cover all
automobile use, a reasonable expense account, the payment of
reasonable expenses for attending annual and periodic meetings of
trade associations, and any other benefits which are commensurate with
the responsibilities and functions to be performed by the employee
under this Agreement. Employer also agrees to pay all reasonable
expenses in connection with the attendance and participation at said
trade association meetings by employee's spouse.
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3. At such reasonable times as the Board of Directors shall in its
discretion permit, the employee shall be entitled, without loss of
pay, to absent himself voluntarily from the performance of his
employment under this Agreement, all such voluntary absences to count
as vacation time, provided that:
a. The employee shall be entitled to an annual vacation of 4 (four)
weeks per year. The employee shall schedule at least two
consecutive weeks of vacation each year.
b. The timing of vacations shall be scheduled in a reasonable manner
by the employee. The employee shall not be entitled to receive
any additional compensation from the Bank on account of his
failure to take a vacation; nor shall he be entitled to
accumulate unused vacation time from one calendar year to the
next.
c. In addition to the aforesaid paid vacations, the employee shall
be entitled, without loss of pay to absent himself voluntarily
from the performance of his employment with the Bank for such
additional periods of time and for such valid and legitimate
reasons as the Board of Directors in its discretion may
determine. Further, the Board of Directors shall be entitled to
grant to the employee a leave or leaves of absence with or
without pay at such time or times and upon such terms and
conditions as the Board, in its discretion, may determine.
V. CHANGE OF CONTROL
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1. If during the term of this Agreement there is a change of control
(COC) of the Bank, the Employee shall be entitled to termination or
severance pay in the event the employee's employment is terminated,
except for just cause as defined in Section II., paragraph 1, c, after
the change in control. In the event the employee is terminated after
365 days as a result of COC, the employee shall be entitled to receive
his salary through the last day of the calendar month of the
termination, or payment in lieu of the notice period. In addition,
the terminated employee shall receive an amount equal to 3 (three)
times his then existing annual base salary. This payment shall also
be made in connection with, or within 120 days after, a change in
control of the Bank if such change in control was opposed by the
employee or the Bank's Board of Directors. This payment shall be in
addition to any amount otherwise owed to the employee pursuant to this
Agreement.
2. The following items are automatically considered due and payable in
the event that change of control occurs:
a. Non-forfeitable deferred compensation shall be paid out in full.
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b. Long-term performance plan objective payments as described in
Section III, 2, f, shall be declared accomplished and earned
based upon performance up to date of the COC.
c. In the event that the employee is a participant in a restricted
stock plan, or share option plan, and such plan is terminated
involuntarily as a result of the COC, all stock and options shall
be declared 100% vested, and distributed. The term "control"
shall refer to the acquisition of 25 percent or more of the
voting securities of the Bank by any person, or persons acting as
a group within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, or to such acquisition of a percentage
between 10 percent and 25 percent if the Board of Directors of
the Bank or the Comptroller of the Currency, the FDIC, or the
Federal Reserve Bank have made a determination that such
acquisition constitutes or will constitute control of the Bank.
The term "person" refers to an individual, corporation, Bank,
bank holding company, or other entity.
VI. POST TERMINATION COVENANTS
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1. If during the term hereof employee shall cease employment hereunder
for any reason, then employee agrees that for six months if dismissed
for cause and one year without cause following such termination he
will not be employed in the banking business or any related field
thereto in Carrollton, Georgia or Xxxxxxx County, Georgia.
Furthermore, following such termination employee agrees that he will
not, without the prior written consent of the Bank:
1) furnish anyone with the name of, or any list or lists of
customers of the Bank or utilize such list or information himself
for banking purposes; or
2) furnish, use, or divulge to anyone any information acquired by
him from the Bank relating to the Bank's methods of doing
business; or
3) contact directly or indirectly any customer of the Bank for
banking solicitation purposes; or
4) hire for any other Bank or employer (including himself) any
employee of the Bank or directly or indirectly cause such
employee to leave his or her employment to work for another.
2. It is understood and agreed by the parties hereto that the provisions
of this section are independent of each other, and the invalidity of
any such provision or portion thereof shall not affect the validity or
enforceability of any other provisions of this agreement.
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VII. WAIVER OF PROVISIONS
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Failure of any of the parties to insist, in one or more instances, on
performance by the others in strict accordance with the terms and conditions of
this agreement shall not be deemed a waiver or relinquishment of any right
granted hereunder of the future performance of any such term or condition or of
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.
VIII. GOVERNING LAW
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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 void or unenforceable, the same shall not affect the remaining provisions
thereof.
IX. MODIFICATION AND AMENDMENT
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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 the parties hereto.
X. COUNTERPARTS AND HEADINGS
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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.
XI. CONTRACT NONASSIGNABLE
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This agreement may not be assigned or transferred by any party hereto, in
whole or in part, without the prior written consent of the other.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the year and date first above written.
EMPLOYEE:
Witness
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EMPLOYEE Date
BANK
By: Witness
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Chairman of the Board Date
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