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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into
as of March 1, 2001 by and among Xxxxx X. Xxxxxx, a resident of the State of
Georgia ("Employee"), Citizens & Southern Bank, a proposed Georgia state banking
corporation ("Employer") and C & S Bancorporation, Inc., a Georgia corporation
and sole shareholder of Employer (the "Company").
WITNESSETH:
WHEREAS, Employer and Employee each deem it necessary and desirable,
for their mutual protection, to execute a written document setting forth the
terms and conditions of their employment relationship;
NOW, THEREFORE, in consideration of the employment of Employee by
Employer, of the premises and the mutual promises and covenants contained
herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Employment and Duties. Employer hereby employs Employee to
serve as Chairman of the Board, President and Chief Executive Officer of
Employer and the Company and to perform such other duties and responsibilities
as customarily performed by persons acting in such capacity. During the term of
this Agreement, Employee will devote his full time and effort to his duties
hereunder. Employee shall perform his duties in Chatham County, Georgia.
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2. Term. Subject to the provisions of Section 12 of this
Agreement, the period of Employee's employment under this Agreement shall be
deemed to have commenced as of the date hereof and shall continue for a period
of 60 calendar months thereafter (i) unless Employee dies before the end of such
60 months or (ii) Employer is not successful in obtaining final opening
approvals (the "Final Approvals") from the Department of Banking and Finance of
the State of Georgia (the "Georgia Department") and the Federal Deposit
Insurance Corporation (the "FDIC"). In either case, the period of employment
shall continue until the end of the month of Employee's death or the inability
to obtain the Georgia Department's and FDIC's Final Approvals. The period of
employment shall automatically be extended for additional one year terms on each
March 1 without further action by the parties, commencing on March 1, 2006 and
each March 1 thereafter. No such automatic extension shall occur if either party
shall, within 90 days prior to any said anniversary, have given written notice
to the other of its intention that this Agreement shall not be so extended.
3. Compensation. For all services to be rendered by Employee
during the term of this Agreement, Employer shall pay Employee in accordance
with the terms set forth in Exhibit A, net of applicable withholdings, payable
in semi-monthly installments.
4. Expenses. So long as Employee is employed hereunder, Employee
is entitled to receive reimbursement for, or seek payment directly by Employer
of, all reasonable expenses which are consistent with the normal policy of
Employer in the performance of Employee's duties hereunder, provided that
Employee accounts for such expenses in writing.
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5. Employee Benefits. So long as Employee is employed hereunder,
Employee shall be entitled to participate in the various employee benefit
programs adopted by Employer and the Company from time to time.
6. Vacation. Employee shall be entitled to four (4) weeks annual
vacation.
7. Confidentiality. In Employee's position as an employee of
Employer, Employee has had and will have access to confidential information,
trade secrets and other proprietary information of vital importance to Employer
and the Company and has and will also develop relationships with customers,
employees and others who deal with Employer or the Company which are of value to
Employer and the Company. Employer requires, as a condition to Employee's
employment with Employer, that Employee agree to certain restrictions on
Employee's use of the proprietary information and valuable relationships
developed during Employee's employment with Employer. In consideration of the
terms and conditions contained herein, the parties hereby agree as follows:
7.1 Employer and Employee mutually agree and acknowledge that
Employer and the Company may entrust Employee with highly sensitive,
confidential, restricted and proprietary information concerning various Business
Opportunities (as hereinafter defined), customer lists, and personnel matters.
Employee acknowledges that he shall bear a fiduciary responsibility to Employer
and the Company to protect such information from use or disclosure that is not
necessary for the performance of Employee's duties hereunder, as an essential
incident of Employee's employment with Employer.
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7.2 For the purposes of this Section 7, the following definitions
shall apply:
7.2.1 "Trade Secret" shall mean the identity and addresses
of customers of Employer or the Company, the whole or any portion or
phase of any scientific or technical information, design, process,
procedure, formula or improvement that is valuable and secret (in the
sense that it is not generally known to competitors of Employer or the
Company) and which is defined as a "trade secret" under Georgia law
pursuant to the Georgia Trade Secrets Act.
7.2.2 "Confidential Information" shall mean any data or
information, other than Trade Secrets, which is material to Employer or
the Company and not generally known by the public. Confidential
Information shall include, but not be limited to, Business
Opportunities of Employer or the Company (as hereinafter defined), the
details of this Agreement, Employer's or the Company's business plans
and financial statements and projections, information as to the
capabilities of Employer's or the Company's employees, their respective
salaries and benefits and any other terms of their employment and the
costs of the services Employer or the Company may offer or provide to
the customers it serves, to the extent such information is material to
Employer or the Company and not generally known by the public.
7.2.3 "Business Opportunities" shall mean any specialized
information or plans of Employer or the Company concerning the
provision of financial services to the public, together with all
related information concerning the specifics of any contemplated
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financial services regardless of whether Employer has contacted or
communicated with such target person or business.
7.2.4 Notwithstanding the definitions of Trade Secrets,
Confidential Information, and Business Opportunities set forth above,
Trade Secrets, Confidential Information, and Business Opportunities
shall not include any information:
(i) that is or becomes generally known to the public;
(ii) that is already known by Employee or is developed by
Employee after termination of employment through entirely independent
efforts;
(iii) that Employee obtains from an independent source
having a bona fide right to use and disclose such information;
(iv) that is required to be disclosed by law, except to
the extent eligible for special treatment under an appropriate
protective order; or
(v) that Employer's or the Company's Board of Directors
approves for release.
7.3 Employee shall not, without the prior approval of Employer's
or the Company's Board of Directors, during his employment with Employer and for
so long thereafter as the information or data remain Trade Secrets, use or
disclose, or negligently permit any unauthorized person who is not an employee
of Employer or the Company to use, disclose, or gain access to, any Trade
Secrets.
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7.4 Employee shall not, without the prior written consent of
Employer or the Company, during his employment with Employer and for a period of
24 months thereafter as long as the information or data remain competitively
sensitive, use or disclose, or negligently permit any unauthorized person who is
not employed by Employer or the Company to use, disclose, or gain access to, any
Confidential Information to which the Employee obtained access by virtue of his
employment with Employer, except as provided in Section 7.2 of this Agreement.
8. Observance of Security Measures. During Employee's employment
with Employer, Employee is required to observe all security measures adopted to
protect Trade Secrets, Confidential Information and Business Opportunities.
9. Return of Materials. Upon the request of Employer or the
Company and, in any event, upon the termination of his employment with Employer,
Employee shall deliver to Employer all memoranda, notes, records, manuals or
other documents, including all copies of such materials containing Trade Secrets
or Confidential Information, whether made or compiled by Employee or furnished
to him from any source by virtue of his employment with Employer.
10. Severability. Employee acknowledges and agrees that the
covenants contained in Sections 7 through 9 and Section 14 of this Agreement
shall be construed as covenants independent of one another and distinct from the
remaining terms and conditions of this Agreement, and severable from every other
contract and course of business by and among Employer, the Company and Employee,
and that the existence of any claim, suit or action by Employee against Employer
and/or the Company, whether predicated upon this Agreement or
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any other agreement, shall not constitute a defense to Employer's or the
Company's enforcement of any covenant contained in Sections 7 through 9 and
Section 14 of this Agreement.
11. Specific Performance. Employee acknowledges and agrees that
the covenants contained in Sections 7 through 9 and Section 14 of this Agreement
shall survive any termination of employment, as applicable, with or without
Cause (as hereinafter defined), at the instigation or upon the initiative of any
party. Employee further acknowledges and agrees that the ascertainment of
damages in the event of Employee's breach of any covenant contained in Sections
7 through 9 and Section 14 of this Agreement would be difficult, if at all
possible. Employee therefore acknowledges and agrees that Employer and the
Company shall be entitled in addition to and not in limitation of any other
rights, remedies, or damages available to Employer and the Company in
arbitration, at law or in equity, upon submitting whatever affidavit the law may
require, and posting any necessary bond, to have a court of competent
jurisdiction enjoin Employee from committing any such breach.
12. Termination.
12.1 During the term of this Agreement, Employee's employment,
including without limitation, all compensation, salary, expenses reimbursement,
and employee benefits may be terminated (i) at the election of Employer for
Cause; (ii) at Employee's election upon Employer's breach of any material
provision of this Agreement; (iii) upon Employee's death; or (iv) at the
election of either party, upon Employee's disability resulting in an inability
to perform the duties described in Section 1 of this Agreement for a period of
90 consecutive days.
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12.2 As used in this Agreement, "Cause" shall mean (i) conduct by
Employee that amounts to fraud, material dishonesty, gross negligence or willful
misconduct in the performance of his duties hereunder; (ii) the conviction (from
which no appeal may be, or is, timely taken) of Employee of a felony; (iii)
initiation of suspension or removal proceedings against Employee by federal or
state regulatory authorities acting under lawful authority pursuant to
provisions of federal or state law or regulation which may be in effect from
time to time; (iv) knowing violation of federal or state banking laws or
regulations; or (v) refusal to perform a duly authorized directive of Employer's
Board of Directors.
12.3 No termination for Cause shall be effective unless it is
approved by a two-thirds (2/3) vote of Employer's Board of Directors, excluding
the vote, if any, of Employee.
12.4 If this Agreement is terminated either pursuant to Cause,
Employee's death or Employee's disability, Employee shall receive no further
compensation or benefits, other than Employee's salary and other compensation as
accrued through the date of such termination.
12.5 Notwithstanding any provisions hereof to the contrary, if
there occurs a Change in Control (as defined on Exhibit B) of the Employer or
the Company, Employee shall be entitled for a period of 90 days after the date
of closing of the transaction effecting such Change in Control to deliver to the
Employee or the Company written notice of termination of this Agreement
whereupon Employer shall pay Employee a lump sum cash payment in an amount equal
to the product of two times Employee's then current compensation and benefits
from Employer, including salary, bonuses, all perquisites, and all other forms
of compensation paid to Employee however characterized for the fiscal year
during the term of this Agreement for which such compensation was highest. This
payment shall be paid to Employee by Employer within 30 days after the delivery
of such notice of termination by Employee to Employer.
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13. Notices. All notice provided for herein shall be in writing
and shall be deemed to be given when delivered in person or deposited in the
United States Mail, registered or certified, return receipt requested, with
proper postage prepaid and addressed as follows:
Employer and Company: C & S Bancorporation, Inc.
X.X. Xxx 0000
Xxxxxxxx, Xxxxxxx 00000-0000
Attn: Xx. Xxxxxxx X. Xxxxxx,
Executive Vice President
Employee: Xx. Xxxxx X. Xxxxxx
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx
14. Covenant Not to Compete, Not to Solicit and Not to Hire.
14.1 For purposes of this Section 14, Employer and
Employee conduct the following business in the following geographic areas:
14.1.1 Employer is engaged in the business of
transacting business as a bank which accepts deposits, makes
loans, cashes checks and otherwise engages in the business of
banking (collectively, the "Business of Employer").
14.1.2 Employer currently conducts business from
its office located at 000 Xxxx Xxxxxxxxx, Xxxxx 000 X
Xxxxxxxx, Xxxxxxx (the "Main Office").
14.1.3 Employee has established business
relationships and performs the duties described in Section 1
of this Agreement in the geographic area covered by
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a circle having a radius of 100 miles from the Main Office,
and will work primarily in such area while in the employ of
Employer.
14.2 Employee covenants and agrees that for a period of two years
after the termination of this Agreement for any reason other than non-renewal of
this Agreement by Employer or the Company on any anniversary date or pursuant to
Section 12.1(ii) of this Agreement, Employee shall not, directly or indirectly,
as principal, agent, trustee, consultant or through the agency of any financial
institution, corporation, partnership, association, trust or other entity or
person, on Employee's own behalf or for others, provide the duties described in
Section 1 of this Agreement for any entity or person conducting the Business of
Employer within the geographic area covered by a circle having a radius of 50
miles from the Main Office.
14.3 During the term of this Agreement and for a period of two
years after the termination of this Agreement for any reason other than
non-renewal of this Agreement by Employer or the Company on any anniversary date
or pursuant to Section 12.1(ii) of this Agreement, Employee will not enter into,
and will not participate in, any plan or arrangement to cause any employee of
Employer to terminate his or her employment with Employer, and, Employee agrees
that for a period of at least two years after the termination of employment by
any employee of Employer, Employee will not hire such employee in connection
with any business initiated by Employee or any other person, firm or
corporation. Employee further agrees that information as to the capabilities of
Employer's employees, their salaries and benefits, and any other terms of their
employment is Confidential Information and proprietary to Employer.
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14.4 Employee and Employer shall periodically amend this Agreement
by updating the address referenced in Section 14.1.2 of this Agreement so that
it at all times lists the then current geographic area served by Employer for
which Employee performs the duties described in Section 1 of this Agreement.
14.5 Notwithstanding any provision herein to the contrary, the
covenant not to compete and not to solicit set forth in Sections 14.2 and 14.3
shall be null and void in the event either (i) this Agreement is not renewed by
Employer or the Company on any anniversary date or (ii) terminated by Employee
pursuant to Section 12.1 (ii) of this Agreement.
15. Miscellaneous.
15.1 This Agreement, together with Exhibit A, constitutes and
expresses the whole agreement of the parties in reference to the employment of
Employee by Employer, and there are no representations, inducements, promises,
agreements, arrangements, or undertakings oral or written, between the parties
other than those set forth herein.
15.2 This Agreement shall be governed by the laws of the State of
Georgia.
15.3 Should any clause or any other provision of this Agreement be
determined to be void or unenforceable for any reason, such determination shall
not affect the validity or enforceability of any clause or provision of this
Agreement, all of which shall remain in full force and effect.
15.4 Time is of the essence in this Agreement.
15.5 This Agreement shall be binding upon and enure to the benefit
of the par-ties hereto and their successors and assigns. This Agreement shall
not be assignable by Employee without the prior written consent of Employer.
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15.6 This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute but a single instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
"Employee"
/s/ Xxxxx X. Xxxxxx (SEAL)
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Xxxxx X. Xxxxxx
"Employer"
CITIZENS & SOUTHERN BANK, a proposed
Georgia State Banking Corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Executive Vice President
"Company"
C & S BANCORPORATION, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Executive Vice President
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Exhibit A
to Employment Agreement By and Among
Xxxxx X. Xxxxxx, Citizens & Southern Bank (Proposed) and
C & S Bancorporation, Inc.
Employee Compensation
Capitalized terms used herein and not defined shall have the meanings set forth
in the Employment Agreement.
BASE SALARY: $175,000.00 per year subject to annual increases in an amount equal
to such amount as the Board of Directors in its discretion shall determine to be
appropriate under the circumstances of not less than five (5%) per cent per
year.
OPTION PLANS: Subject to shareholder approval of that certain incentive stock
option plan of C & S Bancorporation, Inc. (the "Company"), ten year incentive
stock options ("ISOs") to acquire up to 75,000 shares of the Company's common
stock, with such number not to exceed five (5%) per cent of the number of shares
outstanding following completion of the initial offering of the Company's common
stock. Granted at the initial offering price of the Company's common stock,
vesting over 5 years, 40% after year 1, and at 20% per year for each of the next
three (3) years of continued employment thereafter.
BONUS: Payable each January, in an amount approved by the Bank's Board of
Directors.
AUTO ALLOWANCE: $600.00 per month.
CLUB MEMBERSHIP: Initiation fee and monthly dues for Savannah Golf Club, or its
equivalent, and monthly dues for The Chatham Club, or its equivalent.
INSURANCE: Employee's and his dependents' health, hospitalization, and dental,
any other insurance plans as adopted by the Bank's Board of Directors for
employees of the Bank.
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Exhibit B
to Employment Agreement By and Among
Xxxxx X. Xxxxxx, Citizens & Southern Bank (Proposed) and
C & S Bancorporation, Inc.
"CHANGE IN CONTROL" shall mean:
(a) in any transaction, whether by merger, consolidation, asset
sale, tender offer, reverse stock split, or otherwise, which
results in the acquisition or 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 in
concert, of 50% or more of the outstanding shares of common
stock of the Company;
(b) the sale of all or substantially all of the assets of the
Company or the Employer; or
(c) the liquidation of the Employer or the Company.
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