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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into on the 1st day of August, 2000, by and
between THE PEACHTREE BANK, a bank organized under the laws of the State of
Georgia (the "Bank"), and XXXXX X. XXXXXX (hereinafter "Executive");
WITNESSETH:
WHEREAS, the Board of Directors of the Bank believe that it is in the
best interest of the Bank to arrange terms of employment for Executive so as to
reasonably induce Executive to remain in his capacities with the Bank for the
term hereof; and
WHEREAS, Executive is willing to provide services to the Bank in
accordance with the terms and conditions hereinafter set forth;
NOW THEREFORE, for and in consideration of the mutual premises and
covenants herein contained, the parties hereto agree as follows:
1. EMPLOYMENT. For the Term of Employment, as hereinafter
defined, the Bank agrees to employ Executive as its President and Chief
Executive Officer and Executive agrees to accept such employment and to perform
such duties and functions as the Board of Directors of the Bank may assign to
Executive from time to time, but only administrative and managerial functions
commensurate with Executive's past experience and performance level. Executive
agrees to devote his full business time, attention, skill and efforts to the
business of the Bank, and shall perform his duties in a trustworthy and
businesslike manner, all for the purpose of advancing the interest of the Bank.
2. TERM OF EMPOLYMENT. The "Term of Employment" referred to in
Section 1 hereof and hereinafter shall be deemed to have commenced as of the
date first above mentioned and shall continue for a period of three (3) years,
unless sooner terminated pursuant to this Agreement, and shall include any
extension of the period of employment in accordance with this paragraph. The
period of employment shall automatically be extended without further action by
the parties for an additional twelve (12) full calendar months, beginning on the
third anniversary hereof, and on each succeeding anniversary thereafter,
respectively, unless (i) either party shall have served written notice upon the
other of its intention that this Agreement shall not be extended on or before 90
days prior to any such anniversary date, or (ii) the Executive's employment
hereunder shall have been terminated pursuant to Section 4 hereof. Failure to
renew this Agreement by the Bank if followed by the subsequent voluntary
termination of employment hereunder by the Executive prior to the end of the
Term of Employment
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shall be deemed a termination "without cause" under Section 4.3 below, effective
as of the date of the written notice under Section 4.3 provided that the
severance compensation shall be reduced by any Base Salary paid after the
written notice of nonrenewal.
3. COMPENSATION.
3.1 Base Salary. During the Term of Employment, Executive shall be
paid an annual base salary (hereinafter "Base Salary") of $167,500.00 which
shall be paid in equal installments in accordance with the Bank's normal pay
practices, but not less frequently than monthly. Executive's salary shall be
reviewed by the Board of Directors of Bank annually, and Executive shall be
entitled to receive annually an increase (but in no event a decrease) in such
amount, if any, as may be determined by the Board of Directors of the Bank.
3.2 Management Incentives and Discretionary Bonuses. During the
Term of Employment, the Executive shall be entitled, in an equitable manner
based on the terms of any bonus and incentive plans that have been approved, or
may from time to time be approved, by the Board of Directors, with all other key
management personnel of the Bank, to such incentives and discretionary bonuses
as may be authorized, declared and paid by the Board of Directors to the Bank's
key management employees. No other compensation provided for in this Agreement
shall be deemed a substitute for the Executive's right to such incentives and
discretionary bonuses when and as declared by the Board.
3.3 Additional Benefits. During the Term of Employment, Executive
shall be provided with such employee benefits and benefit levels, including
health, life and disability insurance, the exclusive use of an automobile and
club membership, etc. as may be provided by the Board of Directors of the Bank.
These benefits shall be provided and maintained at a level of not less than what
is in effect at the time this Agreement is executed.
Throughout the Term of Employment, Executive shall also be entitled to
reimbursement for reasonable business expenses incurred by him in the
performance of his duties hereunder, as approved from time to time by the Board
of Directors of the Bank.
In conjunction with the execution of this agreement the parties acknowledge the
bank has paid $50,000 on behalf of the Executive for a Senior membership to a
country club. Executive hereby agrees that should Executive voluntarily
terminate his employment with the bank within three years of the date of this
agreement Executive will reimburse the bank on a pro rata basis in the amount of
$1,388.89 for each month of the agreement remaining after the date of
termination.
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4. TERMINATION.
4.1 Death or Disability. This Agreement may be terminated before
the expiration of the Term of Employment upon the occurrence of any one of the
following events:
(a) Upon Executive's death, this Agreement shall
terminate immediately. Any salary and any other amounts that may be due
Executive from Bank at the time of his death (whether pursuant to benefits plan
or otherwise) shall be paid to the executor or administrator of his estate.
(b) The Bank may terminate this Agreement upon
Executive's "Total Disability." As used in the Agreement, "Total Disability"
means any physical or mental disorder that renders Executive incapable of
performing his normal duties and services under this Agreement for a period of
one hundred twenty (120) days in any consecutive twelve (12) month period, as
determined by a licensed physician selected by mutual agreement of the Bank and
the Executive or the Executive's "Total Disability." The Executive's
compensation hereunder shall terminate and the Executive shall be paid in
accordance with such long-term disability plans of the Bank as may be in effect.
The Executive's compensation, title and status shall continue during any such
period of disability until the date of termination except that the Bank may
provide disability insurance to cover the Executive during any part of such
disability period and the Bank's obligation for the Executive's compensation for
any such period shall be reduced by the amount of any such insurance proceeds
which the Executive receives.
4.2 FOR CAUSE. This agreement may be terminated by the Board of
Directors of the Bank for cause for any of the following reasons:
(a) failure of Executive to follow reasonable written
instructions or policies of the Board of Directors of the Bank;
(b) gross negligence or willful misconduct of Executive
materially damaging to the business of the Bank;
(c) conviction of Executive of a crime involving breach
of trust, moral turpitude, theft or fraud;
(d) the willful failure by the Executive to perform
substantially his duties other than any failure resulting from incapacity due to
physical or mental illness;
(e) willful commission of (A) acts involving dishonesty
or fraud with respect to the Bank or (B) acts causing harm to the Bank;
(f) a willful misrepresentation by the Executive to the
stockholders or the Board of Directors of the Bank which causes substantial
injury to the Bank; or
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(g) a request by any state or federal authority
regulating the Bank that the Executive be removed
from his office as President of the Bank.
For purposes of this Agreement, no act, or failure to act, on the part of the
Executive shall be considered "willful" unless done, or omitted to be done, by
him not in good faith and without reasonable belief that his action or omission
was in the best interest of the Bank and the stockholders of the Company. The
Bank shall notify the Executive in writing of the specific reasons for their
termination for "Cause" and the executive will be allowed thirty (30) days to
reply in writing to the accusation before any termination for "Cause". If the
Employee is terminated for "Cause" he shall receive only his salary and any
other amounts due to him from the Bank (whether pursuant to benefit plans or
otherwise) through the date of termination.
4.3 Without Cause. The Bank may immediately terminate this Agreement at
any time "without Cause" by giving the Executive written notice of the
termination date. If this Agreement is terminated pursuant to this provision the
Executive shall be paid severance compensation in an amount equal to his annual
"Base Salary"(as defined in Section 3.1) then in effect which shall be paid over
a twelve (12) month period in such installments and intervals as if the
Executive had remained employed, and (ii) any other amounts owing to the
Executive by the Bank under this Agreement at such termination date. If this
agreement is terminated "without Cause, "the Bank will continue all insurance
benefits in effect at such termination for the Executive and his dependents with
the Bank paying the same amount of premiums on behalf of the Executive and his
dependents as when the Executive was employed for a period of twelve (12) months
from the termination date or until such time as the Executive is employed by
another employer (which shall exclude self-employment), whichever period of time
is shorter. Anything in this Agreement to the contrary notwithstanding, upon a
termination without cause pursuant to this paragraph 4.3, Executive's sole
rights and remedies against the Bank arising out of any such termination of his
employment hereunder are to receive the severance compensation and the other
amounts and benefits as are explicitly set forth in this paragraph 4.3
5. CHANGE IN CONTROL OF THE BANK OR THE COMPANY. In the event of
a "Change in Control" of the Bank during the Term of
Employment, as defined herein, and if as a result of any such
Change in Control Executive either (i) is terminated, during
the Term of Employment, (except "for cause" as defined in
Section 4.2 above) from his employment hereunder and before he
reaches age 65 or (ii) has a "Change in Duties or Salary" as
defined below and resigns, during the Term of Employment, as a
result of such change, the Executive shall be entitled to
receive severance compensation in an amount equal to his Base
Salary then in effect which shall be paid in a lump sum within
14 days following the date of termination or resignation.
For purposes of this Section 5, "Change in Control" of the
Bank or the Company shall mean.
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(i) any transaction, whether by merger, consolidation, asset sale,
tender offer,reverse stock split or otherwise, which results in the acquisition
of beneficial ownership (as such term is defined under rules and regulations
promulgated under the Securities Exchange Act of 1934, as amended) by any person
or entity or any group of persons or entities acting n concert, with the
exception of the Bank's or Company's Board of Directors or the Company's
shareholders, of 50% or more of the outstanding shares of common stock of the
Bank or the Company;
(ii) the sale of all or substantially all of the assets of the Bank or
the Company; or the Company; or
(iii) the liquidation of the Bank or the Company.
For purposes of this Agreement, "Change in Duties or Salary" of Executive shall
mean any of : (i) a change in duties and responsibilities of Executive from
those duties and responsibilities of Executive for the Bank in effect at the
time a Change in Control occurs, which change results in the assignment of
duties and responsibilities inferior to those duties and responsibilities of
Bank at the time such Change in Control occurs; (ii) a reduction in rate of
annual salary from such rate in effect at the time of Change in Control; or
(iii) a change in the place of assignment of Bank from Duluth, Georgia, to any
other city or geographical location that is located further than 25 miles from
the principal office of the Bank in Duluth, Georgia.
6. NONCOMPETE AND NON-SOLICITATION COVENANTS.
6.1 Definitions. In this Agreement the following terms
shall have the meanings set forth below:
(a) Affiliate shall be used to indicate a relationship to
a specified person, firm, corporation, partnership, association or entity that,
directly or indirectly or through one or more intermediaries, controls, is
controlled by or is under common control with such person, firm, corporation,
partnership, association or entity.
(b) Applicable Period shall mean twelve (12) months
following the effective date of the termination of this Agreement.
(c) Area shall mean the geographic area within 10 miles
of the Bank's principal location in Duluth, Georgia.
(d) Competing Business shall mean a federally insured
financial institution.
(e) Proprietary Information shall mean information with
respect to the generally known to or readily ascertainable by any persons
(outside the Bank or its Affiliates) who can obtain economic value from its
disclosure or use, and (ii) is the subject of efforts by the Bank or its
Affiliates that are reasonable under the circumstances to maintain its secrecy
or confidentiality. Assuming the foregoing criteria are met,
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Proprietary Information includes, but is not limited to, technical or
nontechnical data related to compilations, programs, methods, techniques,
processes, finances, actual or potential customers and suppliers, existing and
future products, and employees of the Bank or its Affiliates, and all physical
embodiments of the foregoing. Proprietary Information also includes information
disclosed to the Bank or its Affiliates by a third party which the Bank or its
Affiliates or obliged to treat as confidential.
6.2 Agreement Not to Compete. The Executive hereby agrees that
during his employment by the Bank, and for the Applicable Period thereafter, he
will not (except on behalf of, or with the prior written consent of, the Bank)
for a Competing Business located within the Area, either directly or indirectly,
on his own behalf, or in the service or on behalf of others, as a principal,
partner, officer, director, manager, supervisor, administrator, consultant,
executive employee or any other capacity which involves the duties and
responsibilities similar to those undertaken for the Bank as described in
Section 1, engage or participate in, or control or own (other than ownership of
less than five percent (5%) of the outstanding voting securities of an entity
whose voting securities are traded on a national securities exchange or quoted
on the National Association of Securities Dealers, Inc. Automated Quotation
System), a beneficial interest in, any Competing Business.
6.3 Agreement Not to Solicit Customers. The Executive agrees that
during his employment by the Bank and for the Applicable period thereafter, he
will not, without the prior written consent of the Bank, either directly or
indirectly, on his own behalf or in the service or on behalf of others, solicit,
divert or appropriate, or attempt to solicit, divert or appropriate, to any
Competing Business any customer or client or actively sought prospective
customer or client of the Bank or any Affiliate located in the Area who was
serviced by or under the supervision of the Executive in the course of his
employment within the one (1) year period immediately prior to the termination
of the Executive's employment with the Bank.
6.4 Agreement Not to Solicit Employees. The Executive agrees that
during his employment by the Bank and for the Applicable Period thereafter, he
will not, either directly or indirectly, on his own behalf or in the service or
on behalf of others, solicit, divert or hire away, or attempt to solicit, divert
or hire away, any person employed by the Bank or any of its Affiliates, whether
or not such employee is a full-time, a part-time or a temporary employee and
whether or not such employment is pursuant to a written agreement and whether or
not such employment is pursuant to a written agreement and whether or not such
employment is for a determined period or is at will.
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7. OWNERSHIP AND PROTECTION OF PROPRIETARY INFORMATION.
7.1 Confidentiality. All Proprietary Information and all physical
embodiments thereof received or developed by the Executive while employed by the
Bank are confidential to and are and will remain the sole and exclusive property
of the Bank. Except to the extent necessary to perform the duties assigned to
him by the Bank, the Executive will hold such Proprietary Information in trust
and strictest confidence, and will not use, reproduce, distribute, disclose or
otherwise disseminate the Proprietary Information or any physical embodiments
thereof and may in no event take any action causing or fail to take the action
necessary in order to prevent, and Proprietary Information disclosed to or
developed by the Executive to lose its character or cease to qualify as
Proprietary Information.
7.2 Return of Property. Upon request by the Bank, and in any event
upon termination of the employment of the Executive with the Bank for any
reason, the Executive will promptly deliver to the Bank all property belonging
to the Bank, including, without limitation, all Proprietary Information (and all
physical embodiments thereof) then in his custody, control or possession.
7.3 Termination. The Executive shall maintain and observe the
obligations of confidentiality contained in this Agreement with respect to
Proprietary Information during the term of his employment with the Bank and at
all times following the termination of such employment for any reason
whatsoever.
8. INJUNCTIVE RELIEF. The Executive agrees that the covenants and
agreements contained in Sections 6 and 7 of this Agreement, and the subsections
of these Sections, are of the essence of this Agreement; that each of such
covenants is reasonable and necessary to protect and preserve the interests and
properties of the Bank and the business of the Bank; that the Bank is engaged in
and throughout the Area in the business of the Bank; that irreparable loss and
damage will be suffered by the Bank should the Executive breach any of such
covenants and agreements; and that, in addition to other remedies available to
it, the Bank shall be entitled to both temporary and permanent injunctions to
prevent a breach or contemplated breach by the Executive of any such covenants
or agreements.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto regarding employment of Executive, and
supersedes and replaces any prior agreement between the parties.
10. ASSIGNMENT. Neither of the parties hereto may assign this
Agreement without the prior written consent of the other party hereto.
11. SEVERABILITY. Each section and subsection of this Agreement
constitutes a separate and distinct understanding, covenant and provision
hereof. In the event that any provision of this Agreement shall finally be
determined to be unlawful, such provision shall be deemed to be served from this
Agreement, but every other provision of this Agreement shall remain in full
force and effect.
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12. GOVERNING LAW. This Agreement shall in all respects be
interpreted, construed and governed by and in accordance with the laws of the
State of Georgia.
13. RIGHTS OF THIRD PARTIES. Nothing herein expressed or implied
is intended to or shall be construed to confer upon or give to any person, firm
or other entity, other than the parties hereto and their permitted assigns and
rights or remedies under or by reason of this Agreement.
14. AMENDMENT. This Agreement may not be amended orally but only
by an instrument in writing duly executed by the parties hereto.
15. NOTICES. Any notice or other document or communication
permitted or required to be given to Executive pursuant to the terms hereof
shall be deemed given if personally delivered to Executive or sent to him
postage prepaid, by registered or certified mail, at 000 Xxxxxx Xxx Xxxxxx,
Xxxxxxx 00000, or at any such other address as Executive shall have notified the
Bank in writing. Any notice or other document or other communication permitted
or required to be given to the Bank in writing. Any notice or other document or
other communication permitted or required to be given to the Bank pursuant to
the terms hereof shall be deemed given if personally delivered or sent to the
Bank, postage prepaid, by registered or certified mail, at 0000 Xxxxxxx Xxxxxx
Xxxx, Xxxxxx, Xxxxxxx 00000, or at such other address as the Bank shall have
notified Executive in writing.
16. WAIVER. The waiver by either party hereto of a breach of any
provision of this Agreement by the other shall not operate or be construed as a
waiver of any subsequent breach of the same or any other provision of this
Agreement by the breaching party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
THE PEACHTREE BANK
(BANK SEAL)
By:
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Chairman of the Board of Directors
Attest:
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Secretary
EXECUTIVE
By: (SEAL)
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Xxxxx X. Xxxxxx
