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EXHIBIT 10.2
AGREEMENT
THIS AGREEMENT made and entered into on the 14th day of January, 1998,
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,
III (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 Executive Vice
President 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 he 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 Executive Vice President 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.
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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 $82,000 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.
4.3 Stock Options. Executive shall participate in the Bank's long-term
equity incentive program and be eligible for the grant of stock options,
restricted stock and other awards thereunder. On the date of the closing of the
stock offering for the initial capitalization of the Bank, or as soon thereafter
as an appropriate stock option plan is adopted by the Board, the Bank shall
grant to Executive options to purchase 15,000 share of the class of stock sold
in the offering, which options shall have a term of ten (10) years, shall be
exercisable at a price equal to the offering price in the stock offering, shall
vest and become exercisable at a rate of 3,000 shares per year (subject to the
continued employment of Executive hereunder), shall, to the extent practicable,
be qualified as incentive stock options under the Internal Revenue Code of 1986,
as amended (the "Code"), and shall be subject to the other terms and conditions
of that plan. Nothing herein shall be deemed to preclude the granting to
Executive of warrants or options under a director option plan in addition to the
options granted hereunder. This agreement will honor section 4.3 of the original
compensation contract dated March 7, 1995.
4.3a Stock Grants. Value of stock grant to be determined on January 1
of each year based on market value of stock.
4.4 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.
4.5 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 two (2) 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
er 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
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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 "noncontrol 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
(3) Approval by shareholders of the Bank of:
(A) A merger, consolidation or reorganization involving the Bank
unless
(i) the shareholders of the Bank, immediately before such
merger, consolidation or reorganization, own, directly or
indirectly, immediately following such merger,
consolidation or
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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 ore reorganization, and
(ii) 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 Company
and any of its subsidiaries as such exists on the termination date of
Executive's employment hereunder.
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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 die invalidity of any provision in
Section 6 or elsewhere in this Agreement.
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
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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.
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.
[Signatures on following page]
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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, Xx.
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TITLE: Secretary
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EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxx, III (L.S.) ATTEST: /s/ Xxxxxxxx X. Xxxxxxxx, Xx.
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XXXXXXX X. XXXXXX, III TITLE:
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THOMASVILLE NATIONAL BANK
BY: /s/ Xxxxxxx X. Xxxxxxxxxx
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TITLE: Secretary
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ATTEST: /s/ Xxxxxxxx X. Xxxxxxxx, Xx.
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TITLE:
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XXXX XXXXXX
1997 1998 1999 2000 2001
Salary 75,000 82,000 88,000 94,000 100,000
Bonus 22,500 20,500 17,600 18,800 20,000
Stock grant 4,100 8,800 9,400 10,000
Total 97,500 106,600 114,400 122,200 130,000
XXXX XXXXXX GOALS BONUS
Growth in net profit 15% 10%
Credit Quality CAMEL rating in asset quality 2 or better 5%
Yields/Income Improve overall loan yield to 9.15% 5%
Discretionary overall performance 10%
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