EXHIBIT 10.1
AGREEMENT
---------
THIS AGREEMENT made and entered into on the 1st day of January, 2005, by
and among THOMASVILLE BANCSHARES, INC., Thomasville, Georgia (hereinafter
"Company"), and its wholly owned subsidiary, THOMASVILLE NATIONAL BANK,
Thomasville, Georgia corporation (hereinafter "Bank"), and XXXXXXX X. XXXXXX
(hereinafter "Executive").
WITNESSETH:
-----------
WHEREAS, the Board of Directors (hereinafter the "Board") of the Company
and the Bank, recognizing the experience and knowledge of Executive in the
banking industry, desire to retain the valuable services and business counsel
of Executive, it being in the best interest of the Company to arrange terms of
employment for Executive so as to reasonably induce Executive to remain in his
capacities with the Company and/or the Bank for the term hereof; and
WHEREAS, Executive is willing to provide services to the Company and/or
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
Executive will perform all duties associated with the office of
President of the Bank and with being Chief Executive Officer of the
Bank. Executive agrees to accept such employment and to perform such
duties and functions as the Board of the Company and the Bank may
assign to Executive from time to time. Executive agrees to devote such
of his time and energy to the business of the Company and the Bank as
is needed and shall perform his duties in a trustworthy and
businesslike manner, all for the purpose of advancing the interest of
the Company and the Bank.
Responsibility for the supervision of Executive shall rest with the
Board of the Company and the Bank, which shall review Executive's
performance annually. The Board of the Company and the Bank shall also
have the authority to terminate Executive, subject to the provisions
outlined in Section 5 of this Agreement.
2. Title. Executive shall serve as President and Chief Executive Officer
of the Company and the Bank. Executive shall also serve as a member of
its Executive/Loan Committee and other committees as the Board
designates, subject to the terms hereof.
3. Term of Employment. The "Term of Employment" referred to in Section 1
hereof and hereinafter shall be forty-eight (48) months, unless earlier
terminated pursuant to this Agreement.
4. Compensation.
4.1 Base Salary. During the Term of Employment, Executive shall be paid an
annual base salary (hereinafter "Base Salary") which shall be paid in
equal installments in accordance with the Bank's normal pay practice,
but not less frequently than monthly, and subject to such deductions as
may be required by law. Executive's annual Base Salary shall be
$170,000 per year. Base salary increases will be at the discretion of
the Bank Board of Directors and based upon the review of the
compensation committee and the performance of Bank will be adjusted on
an annual basis as reflected in the attached table.
4.2 Bonus: Executive will be eligible to receive a performance bonus of up
to 30% of base salary per year. The amount of the Bonus will be
determined by the compensation committee. 30% will be paid in cash,
unless otherwise agreed upon by both the Executive and the bank.
4.3 Other Benefits. During the term of employment, the Executive shall
participate in other benefit plans or programs of the Company generally
available to employees of the Company or to a class of employees that
includes senior executives of the Company.
4.4 Additional Benefits. During the Term of Employment, Executive shall
receive an automobile, and a family membership in Xxxx Xxxxx Country
Club, Thomasville, Georgia.
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. Executive shall be entitled to three (3) weeks of paid
vacation and shall also be entitled to vacation days on all official
holidays of the Bank.
5. Termination. This agreement may be terminated by the Board of
Directors of the Company and the Bank upon written notice to Executive
without further obligation other than for moneys already paid or owed
to Executive on the date of termination. A decision to terminate
Executive shall be made by majority vote of the Board of Directors of
the Company and the Bank. Loss of confidence by the Board of Directors
in the leadership abilities of Executive shall be sufficient cause for
termination.
6. Non-Competition and Non Solicitation. Executive acknowledges that he
has performed services or will perform services hereunder which
directly affect the Company's and its subsidiaries' business presently
conducted within Xxxxxx County, Georgia. Accordingly, the parties deem
it necessary to enter into the protective agreement set forth below,
the terms and conditions of which have been negotiated by and between
the parties hereto. This section would no longer apply if a "Change in
Control" took place. A "Change in Control" shall mean the occurrence
during the Term of any of the following events:
(1). An acquisition (other than directly from the Bank) of any voting
securities of the Bank (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 (the "1934 Act")
immediately after which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 promulgated under the 1934 Act
of 20% or more of the combined voting power of the Bank's then
outstanding Voting Securities; provided, however, that in
determining whether a Change in Control has occurred, Voting
Securities which are acquired in a "non-control Acquisition" (as
hereinafter defined) shall not constitute and acquisition which
would cause a Change in Control. A "Non-Control Acquisition"
shall mean an acquisition by (1) and employee benefit plan (or a
trust forming a part thereof) maintained by (x) the Bank or (y)
any corporation or other Person of which a majority of its voting
power or its equity securities or equity interest is owned
directly or indirectly by the Bank (a "Subsidiary"), (2) the Bank
or any Subsidiary, or (3) any Person in Connection with a "Non-
Control Transaction" (as hereinafter defined).
(2) The individuals who, as of the date of this Agreement, are
members of the Board (the "Incumbent Board") cease for any reason
to constitute at least two -thirds of the Board; provided,
however that if the election, or nomination for election by the
Bank's shareholders, of any new director was approved by a vote
of at least two-thirds of the Incumbent Board, such new director
shall, for purposes of this Agreement, be considered as a member
of the Incumbent board; provided, further, however, that no
individual shall be considered a member of the Incumbent Board if
such individual initially assumed office as a result of either an
actual or threatened "Election Contest" (as described in Rule
14a-11 promulgated under the 0000 XXX) or other actual or
threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board (a "Proxy Contest") including by
reason of any agreement intended to avoid or settle any Election
Contest or Proxy contest; or
2
(3) Approval by shareholders of the Bank of :
(A) A merger, consolidation or reorganization involving the Bank
unless
(1) the shareholders of the Bank, immediately before such
merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger,
consolidation or reorganization, at least two-thirds
of the combined voting power of the outstanding voting
securities of the corporation 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
(2) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement
providing for such merger, consolidation or
reorganization constitute at least two-thirds of the
members of the board of directors of the Surviving
Corporation.
(B) A complete liquidation or dissolution of the Bank; or
(C) An agreement for the sale or other disposition of all or
substantially all of the assets of the Bank to any Person
(other than a transfer to a Subsidiary).
(4) Notwithstanding anything contained in this Agreement to the
contrary, if Executive's employment is terminated prior to a
Change in Control and Executive reasonably demonstrates that such
termination (a) was at the request of a third party who has
indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who effectuates a Change in
Control (a Third Party) or (B) otherwise occurred in connection
with, or in anticipation of, a Change in Control which actually
occurs, then for all purposes of this Agreement, the date of a
Change in Control with respect to Executive shall mean the date
immediately prior to the date of such termination of Executive's
employment.
6.1 Term and Geographic Limitations. In the event of termination of
employment under this agreement by action of Executive prior to the
expiration of the Term of Employment as defined hereunder, including
termination pursuant to Section 5 hereof, Executive agrees with the
Company and the Bank that through the actual date of termination of the
Agreement, and for a period of five (5) years after such termination
date:
(a) Executive shall not, without the prior written consent of the
Company and the Bank, within Xxxxxx County, Georgia, perform
banking services or engage in the business of banking in any
capacity, whether as a member of management, supervisor or
executive employee to any bank, bank holding company or other
financial institution; and
(b) Executive will not employ or attempt to employ or assist in
employing any present employee of the Company of any of its
subsidiaries (whether or not such employment is full time or is
pursuant to a written contract), for the purpose of having such
employee perform services for the bank or to the business or
organization in competition with the business of the Company and
any of its subsidiaries as such exists on the termination date of
Executive's employment hereunder.
6.2 Enforceability. The convenience of Executive set forth in Section 6 are
separate and independent covenants for which valuable consideration has
been paid, the receipt, adequacy and sufficiency of which are
acknowledged by Executive to induce the Company and the Bank to enter
into this Agreement. Each of the aforesaid covenants may be availed of
or relied upon by the Company and the Bank in any court of competent
jurisdiction, and shall form the basis of injunctive relief and
damages, including expenses of litigation (including but not limited to
reasonable attorney's fees) suffered by the company arising out of any
breach of the aforesaid covenants by Executive. The convenience of
Executive set forth in Section 6 are cumulative to each other and to
all other covenants of Executive in favor of the Company and the Bank
contained in this Agreement and shall survive the termination of this
Agreement of the purposes intended. Should any covenant, term or
condition contained in Section 6 become or be declared invalid or
unenforceable by a court of competent jurisdiction, then the parties
request that such court judicially modify such unenforceable provision
consistent with the intent of Section 6 so that it shall be enforceable
as modified, and in any event the invalidity of any provision in
Section 6 or elsewhere in this Agreement.
3
7. Entire Agreement. This Agreement constitutes the entire agreement,
between the parties hereto regarding employment of Executive, and
supersedes and replaces any prior agreement relating thereto.
8. Assignment. None of the parties hereto may assign this Agreement
without the prior written consent of the other parties hereto.
9. 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 severed
from this Agreement, but every other provision of this Agreement shall
remain in full force and effect.
10. 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.
11. Rights of Third Parties. Nothing herein express 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, any rights or remedies under or by reason of this Agreement.
12. Amendment. This agreement may not be amended orally but only by an
instrument in writing duly executed by the parties hereto.
13. Arbitration. In the event of any dispute between Executive and Company
and/or Bank, Executive and Company and/or Bank shall submit such
disputes to a mutually agreeable third party for arbitration. The
decision of the third party shall be binding on Executive and Company
and/or Bank and may be make a judgment of any court having jurisdiction
over the party against whom enforcement is sought. In the event the
parties cannot agree upon arbitrator within ten (10) days of one
party's request for arbitration, the dispute shall be arbitrated in
Thomasville, Georgia in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in
effect. This paragraph is subject to and does not preclude employer's
right to seek injunctive relief under paragraph 6.2 above.
14. 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 Xxxxxxxx
Xxxxx, Xxxxxxxxxxx, Xx. or any such other address as Executive shall
have notified the Company in writing. Any notice or other document or
other communication permitted or required to be given to the company
pursuant to the terms hereof shall be deemed given if personally
delivered or sent to the company, postage prepaid, by registered or
certified mail, at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xx. 00000, or
at such other address as the Company shall have notified Executive in
writing.
4
15. 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.
16. Conflict of Interest Investments. Without prior written approval of the
Board of Directors of Bank and Company Executive shall not:
(a) purchase stock or securities in any non-publicly traded
corporation or legal entity;
(b) purchase stock or securities in any corporation or legal entity
(including publicly traded securities) which has a place of
business in Xxxxxx County or surrounding counties and which does
business with the Bank.
Executive agrees to furnish a personal financial statement to the Board of
Directors of the Company and the Bank upon request and not less frequently than
annually.
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.
COMPANY:
THOMASVILLE BANCSHARES, INC.
BY: /s/Xxxxxxx X. Xxxxxxxxxx
-------------------------------
TITLE: Chairman
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxx(L.S.)
---------------------------
XXXXXXX X. XXXXXX
THOMASVILLE NATIONAL BANK
BY: /s/Xxxxxxx X. Xxxxxxxxxx
-------------------------------
TITLE: Chairman
5
