Exhibit 10.2
EMPLOYMENT
AGREEMENT
T his AGREEMENT is made as of the
day of November,
2001, by and between NEW SOUTH BANK (the
“Bank”), a proposed state bank, (in organization); and
GARY HALL , a resident of the State of Georgia (the
“Executive”).
RECITALS:
The Bank desires to employ the
Executive as Senior Vice President and the Executive desires to
accept such employment.
In consideration of the above
premises and the mutual agreements hereinafter set forth, the
parties hereby agree as follows:
1.
Definitions
. Whenever used in this Agreement,
the following terms and their variant forms shall have the meaning
set forth below:
1.1
“ Agreement
” shall mean this
Agreement and any exhibits incorporated herein together with any
amendments hereto made in the manner described in this
Agreement.
1.2
“ Area
” shall mean the
geographic area within the boundaries of Bibb, Jones, Monroe,
Crawford, Twiggs, Heuston and Pench Counties, Georgia. It is the
express intent of the parties that the Area as defined herein is
the area where the Executive performs services on behalf of the
Bank under this Agreement.
1.3
“ Bank Information
” means
Confidential Information and Trade Secrets.
1.4
“ Business of the
Bank ” shall
mean the business conducted by the Bank, which is the business of
commercial banking.
1.5
“ Cause
” shall
mean:
1.5.1
With respect of termination by the
Bank:
(a)
A material breach of the terms of
this Agreement by the Executive, including, without limitation,
failure by the Executive to perform his duties and responsibilities
in the manner and to the extent required under this
Agreement;
(b)
Conduct by the Executive the amounts
to fraud, dishonesty or willful misconduct in the performance of
his duties and responsibilities hereunder;
(c)
Arrest for, charged in relation to
(by criminal information, indictment or otherwise), or conviction
of the Executive during the Team of this Agreement of a crime
involving breach of trust or moral turpitude or any
felony;
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(d)
Conduct by the Executive that
amounts to gross and willful insubordination or inattention to his
duties and responsibilities hereunder; or
(e)
Conduct by the Executive that
results in removal from his position as an officer or executive of
the Bank pursuant to a written order by any regulatory agency with
authority or jurisdiction over the Bank.
1.5.2
With respect to termination by the
Executive, a material diminution in the powers, responsibilities or
duties of the Executive hereunder or a material breach of the terms
of this Agreement by the Bank.
1.6
“ Change of Control
” means any one of
the following events:
(a)
the acquisition by any person or
persons acting in concert of the then outstanding voting securities
of the Bank, if after the transaction, the acquiring person (or
persons) owns, controls or holds with power to vote forty percent
(40%) or more of any class of voting securities of the
Bank;
(b)
within any twelve-month period
(beginning on or after the Effective Date) the persons who were
directors of the Bank immediately before the beginning of such
twelve-month period (the “Incumbent Directors”) shall
cease to constitute at least a majority of the Board of Directors;
provided that any director who was not a director as of the
Effective Date shall be deemed to be an Incumbent. Director if that
director were elected to the Board of Directors of the Bank by, or
on the recommendation of or with the approval of at least
two-thirds of the directors who then qualified as Incumbent
Directors; and provided further that no director whose initial
assumption of office is in connection with an actual or threatened
election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Securities Exchange Act of
1934) relating to the election of directors shall be deemed to be
an Incumbent Director;
(c)
a reorganization, merger or
consolidation, with respect to which persons who were the
stockholders of the Bank immediately prior to such reorganization,
merger or consolidation do not, immediately thereafter, own more
than fifty percent (50%) of the combined voting power entitled to
vote in the election of directors of the reorganized, merged or
consolidated company’s then outstanding voting securities;
or
(d)
the sale, transfer or assignment of
all or substantially all of the assets of the bank to any third
party.
1.7
“ Confidential
Information ” means data and information relating to the
business of the Bank (which does not rise to the status of a Trade
Secret) which is or has been disclosed to the Executive or of which
the Executive became aware as a consequence of or through the
Executive’s relationship to the Bank and which has value to
the Bank and is not generally known to its competitions.
Confidential Information shall not include any data or information
that has been voluntarily disclosed to the public by the Bank
(except where such public disclosure has been
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made by the Executive without authorization) or
that has been independently developed and disclosed by others, or
that otherwise enters the public domain through lawful
means.
1.8
“ Disability
” shall mean the
inability of the Executive to perform each of his material duties
under this Agreement for the duration of the short-term disability
period under the Bank’s policy then in effect (or, if no such
policy is in effect, a period of 90 consecutive days) as certified
by a physician chosen by the Bank and reasonably acceptable to the
Executive.
1.9
“ Effective Date ” shall mean the date the Bank opens for
business.
1.10
“ Initial Term
” shall mean that
period of time commencing on the Effective Date and running until
the earlier of the close of business on the last business day
immediately preceding the third anniversary of the Effective Date
or any earlier termination of employment of the Executive under
this Agreement as provided for in Section 3.
1.11
“ Term
” shall mean the
Initial Term and all subsequent renewal periods.
1.12
“ Trade Secrets
” means Bank
information including but not limited to, technical or nontechnical
data, formulas, patterns, compilations, programs, devices, methods,
techniques, drawings, processes, financial data, financial plants,
product plans or lists of actual or potential customers or
suppliers which:
(a)
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
(b)
is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
2.
Duties
2.1
Position
. The Executive is employed
initially as Senior Vice President Officer of the Bank, subject to
the direction of the Board of Directors of the Bank or its
designee(s), shall perform and discharge well and faithfully the
duties which may be assigned to him from time to time by the Bank
in connection with the conduct of its business.
2.2
Full-Time
Status . In addition
to the duties and responsibilities specifically assigned to the
Executive pursuant to Section 2.1 hereof, the Executive
shall:
(a)
devote substantially all of his
time, energy and skill during regular business hours to the
performance of the duties of his employment (reasonable vacations
and reasonable absences due to illness excepted) and faithfully and
industriously perform such duties;
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(b)
diligently follow and implement all
reasonable and lawful managements policies and decisions
communicated to him by the President and CEO; and
(c)
timely prepare and forward to the President and CEO all reports and
accountings as may be requested of the Executive.
2.3
Permitted
Activities .
The Executive shall devote his entire business time, attention and
energies to the Business of the Bank and shall not during the Term
be engaged (whether or not during normal business hours) in any
other business or professional activity, whether or not such
activity is pursued for gain, profit or other pecuniary advantage;
but this shall not be construed as preventing the Executive
from:
(a)
investing his personal assets in
business which (subject to clause (b) below) are not in competition
with the Business of the Bank and which will not require any
services on the part of the Executive in their operation or affairs
and in which his participation is solely that of an
investor:
(b)
purchasing securities in any corporation whose securities are
regularly trade provided that such purchase shall not result in him
collectively owing beneficially at any time five percent (5%) or
more of the equity securities of any business in competition with
the Business of the Bank; and
(c)
participating in civic and professional affairs and organizations
and conferences, preparing or publishing papers or books or
teaching so long as the Board of Directors of the Bank approves of
such activities prior to the Executive’s engaging in
them.
3.
Term and
Termination .
3.1
Term
. This Agreement shall remain
in effect for the Initial Term. At the end of the Initial
Term and at the end of each twelve-month extension thereof, this
Agreement shall automatically be extended for a successive
twelve-month period unless either party gives written notice to the
other of its intent not to extend this Agreement with such written
notice to be given not less than sixty (60) days prior to the end
of the Initial Term or such twelve-month period. In the event
such notice of non-extension is properly given, this Agreement
shall terminate at the end of the remaining Term then in
effect.
3.2
Termination
. During the Term, the
employment of the Executive under this Agreement may be terminated
only as follows:
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3.2.1
By the Bank:
(a)
For Cause pursuant to Section 1.5.1;
or
(b)
Without Cause at any time, if such,
Bank shall be required to continue to meet its obligations to the
Executive under Section 4.1 for twelve (12) months; or
(c)
Upon the Disability of Executive at
any time, provided that the Bank shall give the Executive thirty
(30) days’ written of its intent to terminate, in which
event, the Bank shall be required to continue to meet its
obligations under Section 4.1 for three (3) months following the
termination or until the Executive begins receiving payments under
the Bank’s long-term disability policy, whichever occurs
first.
3.2.2
By the Executive:
(a)
For Cause, in which event the Bank
shall be required to continue to meet its obligations under Section
4.1 for twelve (12) months; or
(b)
Without Cause or upon the Disability
of the Executive, provided that the Executive shall give the Bank
sixty (60) days’ prior written notice of his intent to
terminate, in which event the Bank shall have no further obligation
to the Executive except future paymen
